GHG Tort Litigation

July 8, 2010
Greenhouse gas cases now in the court system attempt to define manufacturers' environmental obligations

In Connecticut v. American Electric Power, several states, New York City and three land trusts sued six electric power companies that own and operate power plants. The suit was filed to abate defendants' ongoing contributions of GHGs to the nuisance of global warming. Plaintiffs sought to permanently enjoin each defendant to abate that nuisance by capping carbon dioxide emissions and by reducing emissions by a specified percentage each year.

In Native Village of Kivalina and City of Kivalina v. Exxon Mobil Corp., the plaintiff Native Village of Kivalina is the governing body of an Alaskan Inupiat Eskimo village that has approximately 400 people who reside in the City of Kivalina. Plaintiffs allege that, as a result of global warming, the Arctic Sea ice that protects their coast from storms has diminished, and the resulting erosion will require the relocation of the town's residents at a cost ranging from US$95million to $400 million. Defendants are 24 oil, energy and utility companies from whom plaintiffs' seek damages.

In Ned Comer v. Murphy Oil, USA, residents and owners of property along the Mississippi Gulf filed a class action suit against multiple defendants alleging that defendants' operation of energy, fossil fuels and chemical industries in the United States caused the emission of GHGs that contributed to global warming that, in turn, caused a rise in sea levels and added to the ferocity of Hurricane Katrina, which destroyed plaintiffs' property and public property.

In Comer, a panel of Fifth Circuit Court of Appeals judges reversed a lower court's dismissal of the case. However, during reconsideration of the case by an en banc Fifth Circuit court, the en banc court lost its quorum, so it could not actually re-hear the appeal. Due to this procedural problem, the circuit court appears to have reinstated the lower court's judgment in the case. The Fifth Circuit recognized the right of the parties to petition to the U.S. Supreme Court for review.

Kai Alderson of Fasken Martineau practices business law with an emphasis on Energy, Aboriginal, Environmental matters, including climate change and renewable energy law. Stephen Higgs with Perkins Coie, focuses his practice in the area of environmental and natural resource law.

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