It has not been a good run for plaintiffs in private climate change litigation. As we noted last week, the 5th Circuit Court of Appeals affirmed dismissal in Comer v. Murphy Oil. Now, on Monday, the Supreme Court denied certiorari in Native Village of Kivalina v. Exxon Mobil. Kivalina ended more with a whimper than a bang, since the simple denial of cert. carries no opinion or precedential weight.
Given the increasing number of expensive disasters, as well as the costs imposed by long-term sea level rise, I actually expect more and more private claims to be filed, in any jurisdiction or under any set of facts where the claims are not clearly precluded by a prior case. Nonetheless, the near-term outlook for these cases is not bright.
It’s going to take a sea change – as it were – before plaintiffs win one of these cases.
