Suzanne Badawi is a partner and insurance litigator at Luce, Forward, Hamilton & Scripps and the head of the firm’s Climate Change & Sustainable Technology practice.  Her article, “Global Warming: Are You Covered” appears in this month’s California Lawyer magazine.

The article explores whether claims made to defray the costs associated with carbon dioxide emissions will be covered by comprehensive general liability (CGL) insurance policies.  According to Badawi, the answer depends on the wording of the pollution exclusion in the policy and whether carbon dioxide is deemed a pollutant. 

Most CGL policies today have an “absolute pollution exclusion” (APE), which means they provide no coverage for the release of pollutants into the environment.  Not surprisingly, the scope of the exclusion often turns on the question of what constitutes a pollutant.  The article takes the reader through key cases that have ruled on the definition of “pollutant” and notes that the APE has not yet been addressed in the context of carbon dioxide emissions. 

Badawi speculates that the Supreme Court’s 2007 decision in Massachusetts v. EPA, which held that carbon dioxide is a pollutant subject to regulation by the EPA, provides an opening for insurers to argue that the greenhouse gas should be subject to the APE.

I’m always interested in how global warming impacts areas of the law outside of my field, and Badawi’s article is an interesting read.  With all the legal and regulatory efforts to curb greenhouse gas emissions, the article notes that emitters are looking for ways to defray related compliance and litigation costs:

And with that, the “global warming insurance claim” has arrived. 

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