Carbon Dioxide: Harmless, Ubiquitous, and Certainly Not a Pollutant under a Liability Policy's Absolute Pollution Exclusion
![handle is hein.journals/shlr39 and id is 109 raw text is: Carbon Dioxide: Harmless, Ubiquitous,
and Certainly Not a Pollutant Under a Liability
Policy's Absolute Pollution Exclusion
J. Wylie Donald & Craig W Davis*
I. INTRODUCTION
In February 2008, the Inupiat Eskimo community of Kivalina,
Alaska, filed suit against ExxonMobil Corporation and various other
energy-producing concerns for their purported contribution to
global warming. The Inupiat allege that global warming is destroying
their ancestral habitat on the northern Alaskan coast, seventy miles
north of the Arctic Circle.' The Kivalina complaint characterizes the
defendants as many of the largest emitters of greenhouse gases in
the United States2 and seeks damages under federal and state com-
mon law, largely under theories of public and private nuisance.3 Kiv-
alina represents the second wave of climate change litigation, the first
wave having been stalled by federal court decisions dismissing those
cases on justiciability grounds.4 Notwithstanding those first wave de-
cisions (all of which are on appeal), the Kivalina case makes it clear
that climate change litigation, like climate change itself, is not going
away, and that those businesses that might be targeted in such litiga-
tion should be aware of the possibilities of, and potential roadblocks
to, insurance coverage for these suits. This Article addresses a spe-
cific aspect of that broader theme: whether carbon dioxide should be
J. Wylie Donald is a Partner at McCarter & English, LLP in Wilmington, Dela-
ware; he received his B.A. in mathematics. Craig W. Davis is an Associate at McCarter
& English in Newark, New Jersey; he received his B.A. in geological sciences. The
opinions contained in this Article are those of the authors and not necessarily of
McCarter & English or its clients. The authors wish to thank Gregory Little for his
research assistance and the staff of the Seton Hall Law Review for their fastidious edi-
torial efforts and professional courtesy.
See Complaint at 1, Village of Kivalina v. ExxonMobil Corp., No. CV-08-1138
(C.D. Cal. filed Feb. 26, 2008) [hereinafter Complaint].
2 Id. at 1.
3 Id.
4 See infra note 47 and accompanying text.](ViewImageLocal?handle=hein.journals/shlr39&div=7&collection=&method=preview&ext=.png&size=3)
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Carbon Dioxide: Harmless, Ubiquitous, and Certainly Not a Pollutant under a Liability Policy's Absolute Pollution Exclusion
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