reinstated the complaint, finding that
the plaintiffs had standing to bring
the claim because injury had already
begun and was “fairly traceable,” due
at least in part to the defendants’
activities.
In the second case, Comer v. Murphy
Oil, the plaintiffs were property owners
who brought suit against an assortment
of Gulf Coast oil and gas producers,
along with utilities and energy companies, charging that the defendants’
GHG emissions had contributed to the
climatic buildup that caused Hurricane
Katrina. They sought billions of dollars
in property and punitive damages stemming from the post-Katrina floods in
New Orleans. Although the trial court
dismissed the complaint, the Fifth
Circuit Court of Appeals reinstated the
claim on the basis that the defendants
did, at least in part, contribute to the
strength of Katrina.
To the extent that plaintiffs succeed
in bringing these kinds of actions, it is
anticipated that defendants in these
cases will look to their insurers under
their CGL policies to cover defense
and indemnity costs. Older CGL
policies typically provide coverage
for “occurrences” during the policy
period. Under such a policy, tendering
the defense of entities producing
GHGs may prove very significant,
since it typically provides unlimited
defense costs, which do not erode
policy limits. Thus, if a plaintiff brings
suit with a climate change claim that
attributes long-term damage to historic
releases of GHGs, it is expected that
businesses may turn to these old CGL
policies for assistance.
Those knowledgeable in insur-
ance claims, however, would be wise
to look immediately to the “pollution
exclusion” found in most policies,
whereby coverage is excluded for
third-party pollution damages. The
typical policy has a narrow set of
terms defining “pollutants” as “any
solid, liquid, gaseous or thermal irri-
tant or contaminant, including smoke,
vapor, soot, fumes, acids, alkalis,
chemicals, and waste.” While carbon
dioxide is certainly gaseous at ambient
temperatures, it may not necessarily
be either an “irritant or contaminant.”
Thus it may not fit easily on that list
of specific excluded pollutants.
