Two recent United States Court of Appeals decisions may herald a new wave of litigation for damages arising from greenhouse gas emissions. Companies across a growing number of industries are being threatened by lawsuits alleging that their emissions of greenhouse gases ("GHG") are contributing to global warming.
In the course of resolving those lawsuits, courts are likely to make judgments that Congress and regulators might normally be expect to make. The dangerous trend is more toward private plaintiffs seeking monetary relief for damages allegedly caused by global warming (e.g., stronger hurricane storms, rising tides, melting snow cap, etc.), rather than states and municipalities seeking to reduce a company's future GHG emissions. The rise of private, often class-action, lawsuits has the potential to greatly increase the exposure of all affected companies.
In Mississippi (Comers v Murphy Oil), for example, residents and property owners along the Mississippi Gulf coast filed a class action against a number of oil and energy companies, alleging that the operations of the defendants emitted greenhouse gases that contributed to global warming, causing a rise in sea levels and adding to the ferocity of Hurricane Katrina. A federal district court dismissed the case, but the Fifth Circuit Court of Appeals reversed the lower court and found that tort-based global warming litigation against insurance, oil, coal and chemical companies presents justiciable claims.
The Second Circuit Court Appeals also recently reversed a lower court decision (Connecticut v American Electric Power) which was originally dismissed. It is a public nuisance lawsuit filed by eight state attorneys general, the City of New York, and three land trusts against six electric power companies based on greenhouse gas emissions.
This type of litigation has been in the pipeline for awhile. Back in 2006, The Wall Street Journal and Business Week warned that it was coming. This new round of class action lawsuits could be extremely costly....perhaps trillions?
Don C. Brunell, President (DonB@awb.org)
