I started writing years ago on the litigation and insurance questions posed by climate change, focusing on two particular issues, namely: (1) the role of litigation in response to climate change issues; and (2) the response of insurers to increased risk exposure as a result of climate change. When I started writing on these topics, they were outliers (kind of like the every 100 year floods that now happen three times a year in many places) but two themes were already apparent. First, that the litigation theories to be pursued were an open question but the odds were that such suits would eventually find a footing. Second, that the insurance industry’s response to those same climate change risks was more fundamental as well as predictable in the long run (and I don’t mean predictable in a bad way, only in the sense of it being predictable to anyone who understands that insurance decisions are driven by underlying underwriting concerns and, at the end of the day, hard numbers).
The news today makes two things clear. The first is that the insurance industry pullback from the increased risks attributable to climate change is not going away and is accelerating, as discussed in this excellent summary. For those of us who have always thought that responses to climate change will become more serious only once the economic impacts become clear, this clearly appears to be a tipping point in that regard. I have often written that the insurance industry is often the canary in the coal mine with regard to many aspects of American economic life, and that is clearly the case here. The second is that the courtroom, as a forum for tackling these issues beyond simply disputes between regulators and industry, is having its day in, well, court, and we will be seeing the development in the near future of a robust body of law governing this type of suit.