Two electrifying Circuit Court of Appeals cases handed down in 2009 may set the stage for climate change litigation in the years to come. The decisions are Connecticut v. American Electric Power Co., et al., 582 F.3d 309 (2d Cir. 2009) and Comer v. Murphy Oil USA, et al., 585 F.3d 855 (5th Cir. 2009). In both cases, the Court of Appeals reversed the decision of the federal district court and held that the plaintiffs had pleaded adequate facts to permit their cases to proceed. Therefore, unless the United States Supreme Court weighs in and reverses this growing momentum in climate change litigation, it is likely that federal trial courts will be grappling with all of the issues surrounding climate change liability, not least of which will be the science. Did defendant oil and coal producers, chemical companies and coal-using companies bring down the wrath of Hurricane Katrina on the Mississippi plaintiffs? What scientific evidence will be marshaled by plaintiffs to support their allegations? These are the questions that the Comer court will have to grapple with. The very idea that a corporate entity could be found legally responsible for unleashing the catastrophic power of a hurricane would have been unthinkable even ten years ago. Leaving aside epochal issues of public policy, justiciability and theology, the science surrounding climate change litigation will figure prominently in these lawsuits.
An excellent article on scientific issues in climate change litigation, Issues of Proof in Climate Change Litigation, by Francis J. Menton, a partner at Willkie Farr & Gallagher, appeared in The New York Law Journal (12/29/09). Mr. Menton’s discourse, commencing with the issuance in 2001 of the Third Assessment Report (“TAR”) from the United Nations Intergovernmental Panel on Climate Change (“IPCC”) and bringing us up-to-date, reads like a Dan Brown conspiracy thriller, replete with conflicting claims and allegations of scientific fraud, data distortion, revelations by whistle blowers, and spoliation of evidence. On the one hand, the climate change plaintiffs allege that there exists a “clear scientific consensus that global warming has begun and that most of the current global warming is caused by emissions of greenhouse gases, primarily carbon dioxide from fossil fuel combustion.” On the other hand, there are those who deny that there is any consensus and that the entire hypothesis of human-caused or “anthropogenic” global warming is an “urban myth.” Undoubtedly, there will be Daubert–driven debates on both general and specific causation in the global warming litigation.