In the face of courts hostile to the idea of awarding damages against major greenhouse gas emitters over the impacts of climate change, creative plaintiffs lawyers are placing their faith in the driest of subjects: insurance.
Courts -- including the Supreme Court -- have been reluctant to recognize common law public nuisance claims against utilities and oil companies due to the difficulty of attributing blame among thousands of emitters and the sense that it is a global issue that should be tackled at the international level.
But some plaintiffs lawyers think they can prove a concrete injury by showing that their clients' insurance rates have increased as a direct result of climate change.
That is exactly what attorneys representing clients in Mississippi affected by Hurricane Katrina, who recently refiled a high-profile suit against various greenhouse gas emitters, are trying to do.
The complaint in Comer v. Murphy Oil USA Inc. alleges that "as a result of defendants' activities, plaintiffs' insurance premiums for their coastal Mississippi property have risen dramatically."
The case is one of several around the nation in which plaintiffs have attempted to sue utilities for damages related to climate change, but legal experts say it is the only one that makes the specific claim about increased insurance premiums.
"It's certainly an interesting argument," said Julia Ciardullo, a fellow at the Center for Climate Change Law at Columbia Law School.
The role of increased insurance premiums in general is one that insurance companies and others studying the impacts of climate change have been keen to explore.
"I see this as one of a series of secondary and indirect costs from climate change that are potentially very large but yet to be considered," said Alan Miller, a climate change expert at the International Finance Corp., the arm of the World Bank that does private-sector project finance.
Plaintiffs lawyers have so far struggled to make any progress suing emitters under common law. In June, the Supreme Court made it more difficult to do so when it ruled that the Obama administration's efforts to regulate emissions had displaced any federal common law claims (Greenwire, June 21).
The San Francisco-based 9th U.S. Circuit Court of Appeals is currently considering how that ruling will affect another closely watched case, Kivalina v. Exxon Mobil Corp..
Looking ahead, lawyers -- including New Orleans-based Gerald Maples, who filed Comer -- are now focusing on claims under state law. Maples did not respond to requests seeking comment.
The new Comer suit, filed in May, is the second coming of the case.
The first time around, it ended on an unusual note.
The plaintiffs claimed that global warming, caused in part by greenhouse gas emissions, contributed to the severity of the storm.
After a federal judge dismissed the complaint, saying the plaintiffs did not have standing to sue, a three-judge panel of the New Orleans-based 5th U.S. Circuit Court of Appeals reversed, saying the lawsuit could proceed.
The court later agreed to rehear the case en banc, meaning the entire court would participate, but when eight of the 16 judges recused themselves, the remaining eight members of the court concluded they did not have the necessary quorum to decide the case (Greenwire, June 1, 2010).
By agreeing to hear the case en banc, the judges had already vacated the panel decision, meaning the case was essentially left undecided.
Due to the odd way in which the case was handled, the plaintiffs must first overcome some other legal obstacles before the court gets to the merits of the claims, said William Stewart, a Blue Bell, Pa.-based partner at the Nelson, Levine, de Luca & Horst law firm, which specializes in insurance law relating to climate change.
"It's very, very unlikely the plaintiffs will succeed," Stewart added.
Nevertheless climate change legal expert J. Wylie Donald, a partner at the McCarter & English law firm in Wilmington, Del., believes the case merits close attention.
"This theory of damages based on increased risk, rather than actual harm, bears watching," Donald said.
Click here to read the Comer complaint.