Canadian Lawyer

www.canadianlawyermag.com 35 LEGAL REPORT INSURANCE The rise of climate change risk Companies need to be evaluating their insurance policies with climate change risk in mind, lawyers tell Aidan Macnab GLOBAL TEMPERATURE rise, warming and acidifying oceans, shrinking ice sheets, decreased sea cover, glacial retreat, rising sea levels and extreme weather events — climate change is slowly changing the world. This creates new exposure for insurance companies, and the rise of environmental and social governance policies makes climate risk a key consideration for all corporations, say lawyers. Around the world, but primarily in the U.S., climate change-related litigation is on the as- cent, says David Tupper, a partner at Blake Cassels & Graydon LLP in Calgary. "The trend-line seems to be that it's increasing and becoming more varied in nature and type." Climate change litigation has gone through two phases — the first from 2005 to 2015 and the second from 2015 until the present, Tupper says. Phase one involved litigation alleging that corporations — primarily ener- gy companies — had contributed to climate change and caused harm. "Virtually all" of the first batch of litigation was unsuccessful for two reasons, he says. One, constitutional legal doctrine in the Unit- ed States says political questions are non-jus- ticiable. And two, there is difficulty in showing a clear-cut causation between one company's carbon emissions and a specific harm. In Kivalina v. ExxonMobil, for example, members of Alaska's Iñupiat Indigenous peoples sued an oil company for the coast- al erosion and Arctic sea-ice and permafrost melting, which threatened their way of life. However, the court found there was "no re- alistic possibility of tracing any particular alleged effect of global warming to any partic- ular emissions by any specific person, entity, [or] group at any particular point in time." On appeal, the court found any solution to cli- mate change effects was up to the legislative and executive branches of government, not common law. The second wave saw more variety in caus-

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