In early March, KCIC was the event sponsor at the American Bar Association Insurance Coverage Litigation Committee CLE Seminar in Tucson, Arizona. During the event, I had the pleasure to co-host one of the roundtable discussions titled “Insurance Coverage for Climate Change Litigation: Disputes are Heating Up!” with John M. Sylvester of K&L Gates LLP. Our conversation focused on the increase in climate change litigation filed by states, cities, and municipalities for alleged environmental damage from fossil fuel companies and the disputes over insurance coverage for the related claims and lawsuits.

The 2022 Global Trends in Climate Change Litigation report shows that the total number of climate change litigation cases has more than doubled globally since 2015, bringing the total number of cases to more than 2,000. In the United States, climate-related cases have targeted the fossil fuel companies. Two example cases that have been filed are: “Mayor and City Council of Baltimore v. BP P.L.C., et al” and “State of Delaware v. BP America, et al.” Many of the complaints have similar allegations: fossil fuel companies have known that their production and use of fossil fuel products substantially contributed to greenhouse gas pollution, global warming, and climate change. This has allegedly caused sea levels to rise in various coasts, erosion of beaches, increase in storms, severe floods, and other harmful climate conditions. The complaints typically assert the following causes of action: public nuisance, private nuisance, strict liability for failure to warn, strict liability for design defect, negligent design defect, negligent failure to warn, trespass, and violations of the state’s Unfair Trade Practices Act. The complaints seek monetary damages, civil penalties and equitable relief.

Companies named in these lawsuits are looking towards their insurance policies to see how coverage may apply. Insurance companies have raised coverage defenses, such as the application of the pollution exclusion, expected or intended language, and notice. During our roundtable, we had some lively discussions surrounding these climate-related cases and the spotlight in the news on the climate change crisis. The United Nations just recently released a report indicating the world is on the brink of catastrophic warming within the next 10 years unless significant changes are made. As these pending climate-related cases make their way through the courts, we will see how the cases play out.