On September 6, 2018, AIRROC and EECMA (Environmental and Emerging Claim Manager Association) presented their 2018 feature co-hosted program, which took a comprehensive look at climate change. The one-day symposium presented material too voluminous to summarize adequately in a single article. However, here are a few things you missed if you did not attend the symposium.
Courts are inclined to accept that climate change exists.
In the context of dismissing the public nuisance case, Oakland vs. BP, the court nevertheless stated: “This order fully accepted the vast scientific consensus that the combustion of fossil fuels has materially increased atmospheric carbon dioxide levels, which in turn has increased the median temperature of the planet and accelerated sea level rise.” The Court just didn’t believe it had the power to address the issues presented by the case.
Litigation to seek redress for damages due to climate change continues with many unresolved questions:
Who has standing to sue? Who is damaged? What level of scientific evidence is necessary to prove causation? Are damages attributable to a given defendant and if so how to allocate among responsible defendants?
Meanwhile, Juliana, et al vs. US, is set to go to trial in October 2018.
This case was brought by a group of youth plaintiffs alleging that the United States government’s affirmative actions that cause climate change have violated the youngest generation’s constitutional rights to life, liberty, and property, as well as failed to protect essential public trust resources.
The banking and insurance industries need to take a hard look at how they calculate the impact of climate change on risk.
Prior reliance on FEMA maps will result in failure to understand the increased risk of flooding due to climate change. Also, flood insurance premiums, while slated to increase, have not increased enough to prevent the National Flood Insurance Program from falling further into debt. If premiums rise enough due to financial constraints, there will be a significant impact on housing values in flood prone areas.
Insurance coverage implications are a “new frontier” with the usual issues we have seen and litigated with regard to other long-term risks like asbestos and environmental issues under liability, D&O, and first-party policies.
Refer to page 12 in the Winter 2018-2019 issue for article. https://www.airroc.org/assets/docs/matters/AIRROC_Matters_Winter_2018-2019_vol_14%20_No_3.pdf
