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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: 



                    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
   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.).


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