GLOBAL WARMING: A Recovery Perspective David Y. Loh Cozen O’Connor 45 Broadway Atrium, Suite 1600 New York, NY Tel: (212) Fax: (866)

Who said the following? A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like a ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species—the most important species—of a “greenhouse gas.”

Conn. v. American Elec. Power Co., 406 F.Supp.2d 265 (S.D.N.Y. Sept. 19, 2005). Various states sought to enjoin activities of utilities on the basis of public nuisance. No money damages sought. Conclusion: non-justiciable controversy because injunctive relief has consequences which are too far-ranging involving economic, environmental, foreign policy and national security issues.

Comer v. Nationwide Mut. Ins. Co., 2006 WL (S.D.Miss. Feb. 23, 2006). Plaintiffs sought class action status against insurance companies, mortgage lenders, oil companies and chemical manufacturers. Court ultimately denied class action status, but with respect to plaintiffs’ claims against the oil companies and chemical manufacturers, plaintiffs argued that their activities contributed to global warming and aggravated the effects of Hurricane Katrina.

Is it possible to prove? Without in any way expressing an opinion on the merits of the plaintiffs’ claims against these defendants, I will observe that there exists a sharp difference of opinion in the scientific community concerning the cause of global warning, and I foresee daunting evidentiary problems for anyone who undertakes to prove, by a preponderance of the evidence, the degree to which global warming is caused by the emission of greenhouse gasses; the degree to which the actions of any individual oil company, any individual chemical company, or the collective action of these corporations contribute, through the emission of greenhouse gases, to global warming; and the extent to which the emission of greenhouse gasses, to global warming; and the extent to which the emission of greenhouse gasses by these defendants, through the phenomenon of global warming, Intensified or otherwise affected the weather system that produced Hurricane Katrina. This is a task that the plaintiffs are free to undertake if that is their intention, and I am confident that due consideration will be given to the requirements of Rule 11, F.R.Civ.P WL , *4.

Barasich v. Columbia Gulf Transmission, 467 F.Supp.2d 676 (E.D.La. Sept. 28, 2006). Plaintiffs sought class action status against various oil pipeline, dredging, exploration and production companies on the theory that their activities destroyed marshland, vegetation, etc. which in turn deprived various communities of any natural protection from hurricane winds and storm surge.

Burden of Proof Plaintiffs do not allege that the actions of any particular defendant were a substantial factor in causing the injuries suffered by any particular plaintiff, nor do they assert a causal connection linking a particular defendant’s operations to a particular plaintiff’s injury.... Rather, they point to allegations that all of the defendants’ activities caused all of the plaintiffs’ damages.

California ex rel. Lockyer v. GM, 2007 WL (N.D.Cal. Sept. 17, 2007). State of California sued car manufacturers as producers of carbon dioxide and seeks injunctive relief and money damages on the basis of public nuisance based upon federal common law. Conclusion: again, it is deemed to be non- justiciable as infringing on public policy; on appeal; CA could file again in state court under CA nuisance statute.

Justice John Paul Stevens In writing for the majority is a 5-4 decision entitled, Massachusetts v. EPA, ___ U.S. ___, 127 S.Ct. 1438, 167 L.Ed.2d 248 (April 2, 2007).

Commercial General Liability Policies What is an occurrence? Does an occurrence include continuous and repeated exposure to substantially the same harmful conditions?

CGL’s pollution exclusion Sudden & accidental? Is CO 2 a pollutant? What is the commonplace interpretation of a pollutant? If it comes from your mouth? If it comes from the exhaust pipe of an engine?

Catalytic converter Purpose is to reduce emissions of CO and unburnt carbon fuel into CO 2.

West American Ins. Co. v. Tufco Flooring East, Inc., 409 S.E.2d 692, (N.C.Ct.App. 1991). Insurer filed suit seeking a declaration that the release of vapors used while re- surfacing a floor was a “pollutant” under a CGL policy. The vapors killed nearby livestock which invited a lawsuit against the insured. The Court interpreted “pollutant” as an unwanted impurity and concluded that the pollution exclusion did not apply.

“The flooring material (styrene monomer resin) brought upon the premises [by the insured] was wanted. It was not impure. When [the insured] purchased its CGL insurance, it understood “pollutant” in the same way that the Oxford English Dictionary defines “pollutant,” as an unwanted impurity, not as raw materials which [the insured] purchased to do its job.”

CO 2 Is defined by the Supreme Court as a primary culprit of global warming and therefore could easily be considered to be pollutant.

Conclusion Because of the conflicting analysis and case holdings concerning the definition of a pollutant, CGL policies will be relied upon to provide defense coverage for insureds in the face of likely global warming lawsuits. Climate science has not advanced to the level necessary to establish liability against specific private defendants, but may allow state entities to pressure private companies to change their behavior.

© 2008 Cozen O’Connor. All Rights Reserved. Comments in the Cozen O’Connor Presentation are not intended to provide legal advice. The views expressed in this paper do not necessarily represent the opinions of Cozen O'Connor, its employees or any current or former client of Cozen O’Connor. Readers should not act or rely on information in the Alert without seeking specific legal advice from Cozen O’Connor on matters which concern them.