CLIMATE CHANGE LITIGATION IN THE WAKE OF AEP V. CONNECTICUT AND AES V. STEADFAST: OUT TO PASTURE, BUT NOT OUT OF STEAM
CECILIA O’CONNELL MILLER*
On April 19, 2011, two courts heard oral arguments in cases that will define the future of climate change litigation for decades to come. In American Electric Power Co. v. Connecticut (hereinafter AEP), the United States Supreme Court considered whether environmental advocates can use a federal common-law nuisance claim as a vehicle for seeking redress for climate change accruing from greenhouse gas (hereinafter GHG) emissions. Just a hundred miles south that same day, the Virginia Supreme Court heard oral arguments in AES Corporation v. Steadfast (hereinafter Steadfast), in which Virginia’s highest court considered whether a commercial general liability insurer must provide a defense in climate change litigation. Both courts issued holdings that appear, at first blush, to significantly undercut the viability of climate change litigation. In AEP, the United States Supreme Court concluded the Clean Air Act and the Environmental Protection Agency’s ongoing steps to implement the Clean Air Act displace a federal common-law public nuisance claim to limit carbon dioxide emissions. In Steadfast, the Virginia Supreme Court held an insurer was not obligated, as a matter of law, to defend a policyholder under a commercial general liability policy in climate change litigation because the alleged conduct of contributing to global warming was intentional and thus did not constitute an occurrence as required by the policy language. However, in both cases it is precisely
* Counsel, Latham & Watkins LLP, San Diego, California. Ms. Miller specializes in insurance coverage litigation in state and federal courts across the country at both the trial and appellate level. Ms. Miller received her JD with highest honors from the Catholic University of America Columbus School of Law, where she was valedictorian of her...