Litigation Over the Effects of Global Warming Heats Up

In June 2009 the House of Representatives passed the Waxman-Markey bill to reduce carbon emissions through a series of cap-and-trade regulations.  The news this week that the Senate version of the bill has removed cap and trade has drawn a wave of commentary and analysis, some of which calls the Senate Democrats’ efforts a legislative failure.  

While legislation stalls in Congress, a series of judicial decisions and ongoing litigation in the courts is shaping the potential liability for greenhouse gas emissions.  To learn more about what is happening in the courts and what it might mean for climate change, Big Think spoke with Michael Gerrard, Director of Columbia Law School’s Center for Climate Change Law.

“I count a total of about 250 lawsuits and administrative cases on file aiming to reduce greenhouse gases or otherwise litigate climate related issues,” said Gerrard.  Most of these cases are based on specific statutes, but a handful have been brought under the common law of nuisance, which stems from the “idea that the courts for centuries have been ordering abatement of smoke and other nuisances,” said Gerrard.   

Big Think asked Gerrard for three examples of common law climate change litigation in the courts. 

“The case that most eyes are upon is Connecticut v. American Electric Power,” said Gerrard, “which is a suit brought by several states and cities against five large electric utilities seeking a court order that they reduce their greenhouse gas emissions.”  Gerrard said the case was originally dismissed by the trial court in New York, but this was reversed by the U.S. Second Circuit Court of Appeals, which held that the case could go forward.  “It is expected that the defendant utilities will ask the U.S. Supreme Court within the next few weeks to take the case,” said Gerrard. 

Another case being watched is Comer v. Murphy Oil, said Gerrard, which arises out of Hurricane Katrina.  This case was brought by a group of property owners in Mississippi who said that their property was damaged by Hurricane Katrina and that the hurricane was intensified by climate change.  The case is seeking money damages from a list of oil and chemical companies, said Gerrard.  He added that if the Connecticut v. AEP case and the Comer v. Murphy Oil survive in the U.S. Supreme Court, nuisance common law “will receive an enormous amount of attention because it is a completely different avenue for fighting greenhouse gases.” 

A third case, Kivalina v. Exxon Mobil, claims that the village of Kivalina in Alaska is eroding into the sea because of global warming.  The village is suing several large companies for damages to allow them to relocate inland.  This case was brought to the federal court in San Francisco, Gerrard said, adding the court, like the trial courts in the Connecticut and Comer cases, dismissed the case on ‘political question’ grounds.  Of the ruling he explained, “It’s called a political question doctrine, which says that certain kinds of questions are not the domain of the judiciary.”  This case is now before the 9th Circuit Court of Appeals.