Environmental Trial Updates

Federal appeals courts in New York and Louisiana, and a federal trial court in California issued conflicting rulings in the last month on whether energy and other companies can be sued in federal court to recover damages caused by global warming.

The Second Circuit Court of Appeals in New York ruled on September 21 that eight states and three environmental groups can proceed with their lawsuit claiming that the greenhouse gas emissions of six electric power companies must be enjoined because of the damage being caused by global warming, under a federal common law nuisance claim.

The U.S. District Court for the Northern District of California reached the opposite conclusion on September 29, holding that claims about damage from global warming constitute a “political question” best left to the legislative branch to resolve, and holding that the plaintiff, an Inupiat Eskimo tribe from Kivalina, Alaska, could not prove that its damages were being caused by the greenhouse gas emissions of the 24 defendants it sued. It is likely that the Kivalina case will be appealed to the Ninth Circuit Court of Appeals.

The Fifth Circuit Court of Appeals in Louisiana then ruled on October 16 that victims of Hurricane Katrina can proceed in a lawsuit against oil refineries, chemical companies and other industries for contributing to their property losses during Hurricane Katrina because of their contributions to global warming as a result of their greenhouse gas emissions.

There are several other global warming lawsuits pending in courts around the country, that are being closely watched for their potential impact on business in the U.S. Although energy companies–electric power suppliers, oil and gas companies–have been the focus of the lawsuits to date, it is easy to imagine that such claims can be extended to other businesses that result in greenhouse gas emissions–commercial and industrial buildings, the transportation industry, government, etc. For questions about the lawsuits, or the potential effects of such claims on your business, contact Stephen E. O’Day, Sustainability Practice Group Leader.

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