Document Type

Article

Disciplines

Environmental Law | Insurance Law

Abstract

Climate change started as a scientific theory, became the subject of environmental policy and international negotiation, and today manifests itself within the courts in a series of boundary testing cases that challenge the settled concepts of risk and redress available under both environmental and insurance law. As our climate becomes increasingly unstable and the causal link between damage from sea-level rise and severe weather events becomes ever more tangible and traceable, courts at all levels wrestle with varying avenues of legal authority, including: the limitations of legal redress through the political question doctrine the appropriateness of traditional federal and state nuisance law, and the viability of addressing climate change through established environmental statutory apparatus, such as the Clean Air Act, which had primarily regulated only traditional air pollution. By 2014, the first wave of climate law cases reached resolution. Yet, through (or perhaps despite) this process, clarity is emerging as it relates to an insured's liability for past emissions and insurer's obligations.

This paper will synthesize the developing field of climate law with the insurance industry's practice and policy. The first part of this paper will discuss the evolving legal posture of climate liability law by summarizing the long timescale of climate change's awareness; reviewing a selection of the leading climate liability cases involving emitters, specifically Massachusetts v. Environmental Protection Agency and the recent modifying case of Utility Air Group v. Environmental Protection Agency, Connecticut v. American Electric Power, Native Village of Kivalina v. ExxonMobil; and finally assessing the impact of climate change litigation on the insurer by presenting the Supreme Court of Virginia case of AES v. Steadfast.

The second part of this paper examines the insurance industry's response to this evolving legal environment, drawing from policy and the diverse public image presented by insurance companies as it relates to this evolving risk category.

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