The Kivalina suit, backed by liberal foundation money and formidable plaintiff's lawyers, seeks to extract vast sums from energy companies on a theory that climate change can be construed as public nuisance. A Washington Legal Foundation paper (PDF) by Peter Gray and J. Benjamin Winburn of McKenna Long & Aldridge examines the hurdles and defenses the suit will likely have to overcome, including the political question doctrine, pre-emption, and standing, and most significantly causation, since the contributions of defendant oil, coal and utility companies to global warming cannot readily be disentangled from the contributions of entities not sued. Although the state tobacco recoupment precedent suggests that "civil conspiracy" and "concert of action" could be powerful theories for the plaintiffs, Gray and Winburn conclude that the atmospherics (so to speak) of sympathy are likely to be more favorable for the defendants in this case, in that their activities, unlike the sale of cigarettes, are essential to the functioning of modern society.
A road map for the Kivalina suit
- EPA carbon dioxide rules in DC Circuit
- Trial Lawyers, Inc. Update: Environment
- Copland on climate-change suits
- "The People v. CO2"
- Burns and Osofsky, "Adjudicating Climate Change"
- "The EPA Power Grab"
- Fifth Circuit reinstates climate change class action
- Judge dismisses Kivalina suit claiming global warming damage
- "Climate lawsuits are coming, Gore & Browner warn"
- Out with a whimper: California AG vs. automakers on global warming
- First arguments in Kivalina global-warming suit
- Climate change suits against directors and officers
- "Science paves way for climate lawsuits"
- Sarah Palin on legal reform, Exxon Valdez and polar bears
- Palmetto State predictable