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47 J. Marshall L. Rev. 101 (2013-2014)
Insurance and Climate Change

handle is hein.journals/jmlr47 and id is 772 raw text is: INSURANCE AND CLIMATE CHANGE BY: JOSEPH MACDOUGALD AND PETER KOCHENBURGER' I. INTRODUCTION Climate change started as a scientific theory, became the subject of environmental policy and international negotiation, and today manifests itself within the courts in a series of boundary testing cases that challenge the settled concepts of risk and redress available under both environmental and insurance law. As our climate becomes increasingly unstable and the causal link between damage from sea-level rise and severe weather events becomes ever more tangible and traceable, courts at all levels wrestle with varying avenues of legal authority, including: the limitations of legal redress through the political question doctrine2 the appropriateness of traditional federal and state nuisance law,3 and the viability of addressing climate change through established environmental statutory apparatus, such as the Clean Air Act, which had primarily regulated only traditional air pollution.4 By 2014, the first wave of climate law cases reached resolution. Yet, through (or perhaps despite) this process, clarity is emerging as it relates to an insured's * Joseph MacDougald is a Professor in Residence and Executive Director for the Center for Energy & Environmental Law, University of Connecticut School of Law. Peter Kochenburger is an Associate Clinical Professor of Law and Executive Director of the Insurance Law Center at UConn Law School. They wish to thank the Center for Energy & Environmental Law's research assistant, Amanda Bellmar, and Insurance Law Librarian Yan Hong for their help. 2. See Comer v. Murphy Oil USA, 585 F.3d 855, 879-80 (5th Cir. 2009) (reversing a lower-court's decision that Comer's climate-based claims were non-justiciable under the political question doctrine). 3. See, e.g., Am. Elec. Power Co., Inc. v. Conn., 131 S. Ct. 2527 (2011) (holding that federal nuisance law has been displaced in favor of the Environmental Protection Agencies' regulation of greenhouse gasses under the Clean Air Act). 4. Mass. v. EPA, 549 U.S. 497 (2007); see also Transcript of Oral Argument at 22, Mass. v. EPA, 549 U.S. 497 (2007) (No. 05-1120) (Quoting Justice Scalia: But I always thought an air pollutant was something different from a stratospheric pollutant, and your claim here is not that the pollution of what we normally call air is endangering health. That isn't, that isn't-your assertion is that after the pollutant leaves the air and goes up into the stratosphere it is contributing to global warming.). 101

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