Legal News

Is Climate-Change Litigation the New Asbestos?

By Ashby Jones

Back in October, LB colleague Nathan Koppel offered up this post on a Fifth Circuit decision allowing a lawsuit brought by Hurricane Katrina victims. The plaintiffs’ allegation: That oil and coal companies emitted greenhouse gasses that contributed to global warming that, in turn, caused a rise in sea levels, adding to Hurricane Katrina's ferocity.

The NYT on Wednesday has spilled a goodly amount of ink exploring an unrelated but similar suit up in Alaska. Kivalina, an Inupiat Eskimo village of 400 that sits on an island north of the Arctic Circle, has sued some two dozen companies of helping to cause the climate change that it says is destroying the island.

The NYT’s John Schwartz explains that the village has asked the companies, which include ExxonMobil and Shell Oil, to pay the costs of relocating to the mainland.

Similar cases, reports Schwartz, are pushing ahead around the country. In recent months, two federal appeals courts reversed decisions by federal district courts to dismiss climate-change lawsuits, allowing the cases to go forward. Kivalina is hoping for a similar fate: A federal judge in San Francisco in October dismissed the case, but the village has appealed.

Do these cases really stand a chance? Schwartz quotes one expert who feels "the game pieces are being set for eventual Supreme Court review."

But even if the cases fall short of the high court, they might still have an impact. They could drive industries to the negotiating table.

The cases are largely being brought under the common-law doctrine of nuisance, a theory which hasn’t gained a lot of traction in other contexts, like lead paint. But some think such suits might take hold now. Or soon.

In a report issued last year, Swiss Re, an insurance giant, compared the suits to those that led dozens of companies in asbestos industries to file for bankruptcy, and predicted that "climate change-related liability will develop more quickly than asbestos-related claims."

The pressure from such suits, the report stated, "could become a significant issue within the next couple of years."

Full post as published by Law Blog - WSJ.com on January 27, 2010 (boomark / email).