Golden Gate University Environmental Law Journal


On April 19, 2011, two courts heard oral arguments in cases that will define the future of climate change litigation for decades to come. In American Electric Power Co. v. Connecticut (hereinafter AEP), the United States Supreme Court considered whether environmental advocates can use a federal common-law nuisance claim as a vehicle for seeking redress for climate change accruing from greenhouse gas (hereinafter GHG) emissions. Just a hundred miles south that same day, the Virginia Supreme Court heard oral arguments in AES Corporation v. Steadfast (hereinafter Steadfast), in which Virginia’s highest court considered whether a commercial general liability insurer must provide a defense in climate change litigation.

Part II of this Article analyzes the holding and ramifications of the United States Supreme Court’s decision in AEP. Part III analyzes the holding and ramifications of the Virginia Supreme Court’s decision in Steadfast. Part IV synthesizes the ramifications of these two decisions and predicts that climate change litigation remains viable, both on the underlying claim and related coverage issues. Thus, rather than take the steam out of climate change litigation, the AEP and Steadfast decisions simply send this litigation back to the states.