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A road map for the Kivalina suit

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.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.