June 2008

Problems in Iowa: Working Around the Flood Exclusion

June 30, 2008 17:26
by J. Wylie Donald
One of the great battles that will be fought out in the next several decades is who will bear the costs of climate change. One target will be insurance companies, who have borne and continue to bear the costs of asbestos (formerly thought of as a "miracle mineral") and the cleanup of environmental pollution (many sites of which were permitted disposal sites or were the result of compliance with customary and even recommended practices).  These losses have been found covered by insurance by numerous courts, notwithstanding insurer arguments that the losses were never intended to be covered...


Federal Appeals Court Rejects Deadline Claim for EPA Endangerment Finding

June 28, 2008 08:00
The U.S. Court of Appeals for the District of Columbia Circuit declined this week to order the U.S. Environmental Protection Agency (EPA) to complete its review within 60 days concerning the public health impact of greenhouse gas emissions (GHGs) from new motor vehicle exhaust. In denying the request of Massachusetts and 16 other states and environmental groups, the Appellate Court on June 26, 2008 left EPA to continue to move at its own pace in responding to the April 2007 landmark decision of the U.S. Supreme Court in the case known as Massachusetts v. EPA. 127 S. Ct. 1438 (2007). In Massa...


Carbon Dioxide - Irritant or Contaminant? - Application of the Absolute Pollution Exclusion (Part 1)

June 27, 2008 13:34
by J. Wylie Donald
The question remains whether the absolute pollution exclusion, the most typical pollution exclusion found in CGL policies today, would bar coverage for climate-change related liabilities associated with the release of carbon dioxide; in other words, whether carbon dioxide would qualify as a “pollutant” as defined in a typical absolute pollution exclusion. The so-called absolute pollution exclusion purports to bar coverage for property damage or bodily injury only if it arises out the release of a “pollutant,” which is generally defined as an “irritant,” or “contaminant.”  As those terms ...


Carbon Dioxide - Ubiquitous and Anonymous - Essential Preliminaries to Application of the Absolute Pollution Exclusion

June 13, 2008 03:44
by J. Wylie Donald
Although the U.S. Supreme Court's foray into the area of carbon dioxide emission regulation, Massachusetts v. EPA, garnered significant media attention, for liability purposes corporations and their insurance companies are paying attention to a different type of case: claims alleging injury arising from certain industries' emissions of carbon dioxide. These claims raise the issue of whether commercial general liability (CGL) policies will cover the defense and indemnification costs incurred in defending, settling, and, perhaps, paying judgments on these lawsuits. Thus, insurance coverage is an...


CT adopts law setting greenhouse gas reduction mandates

June 11, 2008 08:43
The Connecticut General Assembly adopted a bill, which Gov. M. Jodi Rell (R) signed into law earlier this month, that sets mandatory greenhouse gas emission reduction requirements to 10 percent below 1990 levels by 2020 and 80 percent below 2001 levels by 2050.  The law broadens the authority of Connecticut’s Commissioner of Environmental Protection (“DEP”) and other state agencies to take regulatory, policy and strategic actions necessary to ensure compliance with the mandates and authorizes cooperation with other states beyond the Regional Greenhouse Gas Initiative (“RGGI”), including...


FERC Commissioner predicts federal climate legislation at least 3 years away

June 8, 2008 11:24
BALTIMORE – As the U.S. Senate was voting Friday to defeat the Boxer-Lieberman-Warner legislation intended to combat global climate change, a federal energy regulator was telling a group of leading environmental lawyers assembled at a climate change conference here that he thinks it will be at least the year 2011 before the Congress passes, and the next president signs into law, a federal climate change bill. The prediction of the Hon. Philip D. Moeller, one of five commissioners of the Federal Energy Regulatory Commission (FERC), surprised the environmental lawyers in attendance.  While...


Welcome To Climate Lawyers Blog

June 4, 2008 03:22
Welcome to our climate law blog, a legal and public policy forum presented by the Climate Change and Renewable Energy Practice Group of McCarter & English, LLP on issues concerning the legal, regulatory and business risk issues arising from global climate change.  For years, our lawyers have been drawing on their varied experiences in the areas of environmental law, energy regulation, business litigation, public strategy, real property, construction law and insurance coverage claims, to name a few of the relevant legal disciplines, to understand and be prepared for advising clients on...



The business case for the development of renewable energy projects, from biodiesel and ethanol to wind, solar, and distributed generation, is more compelling than ever as tax and regulatory incentives combine to attract investments. Emerging issues in environmental law and increasingly recognized principles of corporate social responsibility are encouraging public companies to voluntarily reduce greenhouse gas emissions, install clean energy alternatives, and invest overseas in projects under the Kyoto Protocol to respond to climate change concerns.

Click here for more information and a list of our group members.


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