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Laura Foggan Discusses DC Circuit's Greenhouse Gas Emissions Ruling

Law360
June 28, 2012

Laura Foggan, chair of Wiley Rein's Insurance Appellate Group, was interviewed by Insurance Law360 following a ruling by the U.S. Court of Appeals for the DC Circuit that upheld a determination by the Environmental Protection Agency (EPA) that greenhouse gas emissions threaten human health. 

The article reported that the DC Circuit upheld steps taken by the EPA "to reduce greenhouse emissions after the U.S. Supreme Court held in 2007 that green house gases were air pollutants subject to regulation under the Clean Air Act."

Ms. Foggan said the DC Circuit's decision bolsters insurer arguments that pollution exclusions in commercial general liability policies prevent coverage for global warming lawsuits against green house gas emitters.

"Cases like this one reinforce that kind of self-evident point that greenhouse gases that can contribute to global warming are pollutants," said Ms. Foggan.

The article noted that, while there is a scarcity of law on the issue, the Virginia Supreme Court  held in April that Steadfast Insurance Co. had no duty to defend The AES Corp. against a lawsuit claiming the power company damaged a native Alaskan community by emitting greenhouse gases that contributed to global warming.

The court did not reach the issue of whether the pollution exclusion applied, but it found that coverage wasn't triggered because there was no "occurrence," defined as an accident under the policy. 

But future global warming coverage disputes will likely center on whether pollution exclusions apply, and the DC Circuit ruling will play a role in that debate, according to sources quoted in the article.  Ms. Foggan explained that " it's really a belt and suspenders position for the insurer where there is no coverage for multiple reasons," Foggan said. "Both because there's no occurrence, but also because the pollution exclusion would apply."