Climate change litigation on the rise

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The New York Times has an item on a series of climate change lawsuitsthat are making their way through the courts around the U.S. Already, two federal appeals courts have reversed decisions by federal district courts to dismiss climate-change decisions. One of the cases (Comer v. Murphy Oil USA (5th Cir. Miss. October 16, 2009)), a decision of the Court of Appeals for the 5th Circuit, involved Gulf Coast property owners who claimed property damage resulting from Hurricane Katrina. The plaintiffs sued several large energy and power companies for compensatory and punitive damages, charging that these were caused by greenhouse gases emitted from their operations.

Now the the Alaskan village of Kivalina is appealing the decision of a federal judge in San Francisco which dismissed its claim against several companies, most notably ExxonMobil and Shell Oil, aimed at forcing them to pay the costs of relocation to the mainland, estimated at $US400 million, alleging that the defendants helping are responsible for the climate change that the village claims is destroying its island.

Though Canadian courts have contributed little case law on the matter, large emitters of greenhouse gases in Canada should carefully monitor U.S. rulings on the matter. According to this Fraser Milner Casgrain report:

“While the decisions discussed above involve U.S.- specific claims, owing in large part to the United States Constitution, the cases raise certain legal principles that are universally relevant. While climate change litigation would be novel in Canada, it could ostensibly be based on similar principles of tort law available in the U.S., including the common law claim of nuisance. Although the political question and standing doctrines do not flow from the Constitution in Canada (as they do in the United States) they are the subject of fundamental common law principles. Consequently, any actions brought in Canada would invariably need to address the suitability of the court system to resolve climate change litigation. Additionally, courts would need to grapple with the concept of contribution and whether a defendant’s contribution to a worldwide problem is in itself sufficient to result in liability, when the defendant is one of many worldwide emitters of greenhouse gases.”