Recent Developments in Climate Change Tort Litigation

Date: November 11, 2010
Duration:  57 minutes
Committee: Environment, Energy, and Resources Committee
Download:  Audio

About the Program

Successful climate change tort claims have the potential to both force many of the nation’s largest GHG emitters to curtail their emissions and reorder the economy.  Recent Development in Climate Change Tort Litigation, a teleconference scheduled for November 11, 2010, will feature experts who will bring you up-to-speed on this important area of law. 

Late 2009 brought the first federal court opinions finding plaintiffs to have standing to pursue common law of public nuisance claims against greenhouse gas (“GHG”) emitters, and a number of these climate change tort suits are currently being hotly contested.  In May 2010, the Fifth Circuit vacated one of the cases (Comer v. Murphy Oil) that had found plaintiffs to possess standing to pursue climate tort claims.  In August 2010, defendants in the other case (Connecticut v. AEP) appealed their loss at the Second Circuit to the US Supreme Court.  Also in August 2010, the Obama administration urged the Supreme Court to vacate the Second Circuit’s opinion.  Briefing to the Ninth Circuit is occurring on a third climate tort case (Native Village of Kivalina v. Exxon Mobil).  A recent Fourth Circuit decision (North Carolina v. TVA) bears on the pre-emption of the Clean Air Act in the public nuisance context.  These cases raise a number of interesting questions, foremost among them being: 1) Do climate tort plaintiffs possess standing?  2) Are climate torts nonjusticiable under the political question doctrine?  3) Have federal common law claims against GHG emitters been displaced by Congressional or EPA action?  4) Have state common law claims against GHG emitters been pre-empted by federal law? 

Program Faculty

James R. May, Widener University School of Law

Victor B. Flatt, University of North Carolina School of Law
Patrick A. Parenteau, Vermont Law School
Shawn Patrick Regan, Hunton & Williams LLP
Michael G. Romey, Latham & Watkins LLP