In 2020, Honolulu and Maui brought suits in the respective circuit courts of their counties against petroleum companies that have operated in Hawai\u02bbi for decades. The lawsuits allege that the companies knew for a very long time that the use of their products would bring about catastrophic climate changes.<\/p>\n\n\n\n
The oil companies sought to remove the cases to federal court. When that effort failed, they moved for dismissal. When that failed, they sought relief from the state Supreme Court, which, on October 31, 2023, denied their appeal, allowing the cases to move forward.<\/p>\n\n\n\n
Two of the defendants \u2013 Sunoco (parent of Aloha Petroleum) and Shell \u2013 have filed petitions for writs of certiorari with the U.S. Supreme Court, asking the court to overturn the Hawai\u02bbi Supreme Court\u2019s decision. Shell\u2019s petition presents two questions: \u201c1. Whether claims seeking damages for the effects of interstate and international emissions on the global climate are beyond the limits of state law and thus preempted under the federal Constitution,\u201d and \u201c2. Whether the Clean Air Act preempts state-law claims predicated on damaging interstate emissions.\u201d Sunoco\u2019s petition asks just one question: \u201cWhether federal law precludes state-law claims seeking redress for injuries allegedly<\/strong> caused by the effects of interstate and international greenhouse-gas emissions on the global climate.\u201d (Emphasis added.) Those petitions are still pending.<\/p>\n\n\n\n As the lawsuits moved through state courts, Aloha Petroleum brought a suit in federal court against the companies that had insured it. The parent company of the insurers, AIG, had denied Aloha\u2019s demand that it defend Aloha against the claims of Maui and Honolulu, citing exclusions for release of pollutants in two policies, issued in the 1980s. Aloha argued that the pollution exclusions applied only to pollutants on premises, not product liability \u2013 which is the theory underlying the county lawsuits.<\/p>\n\n\n\n Most of the federal case hinges on just how to define \u201caccident\u201d and \u201cpollutant.\u201d To clarify this, the federal court asked the state Supreme Court to rule on two \u201ccertified questions.\u201d First, does an \u2018\u201caccident\u201d include the reckless conduct of the insured? Second, are greenhouse gases \u201cpollutants,\u201d as defined in the pollution exclusions contained in the policies.<\/p>\n\n\n\n Last month, the Supreme Court issued its ruling. As to the first question, the court found in Aloha\u2019s favor, determining that \u201caccident\u201d included reckless conduct. \u201cAIG\u2019s policies cover an \u2018occurrence.\u2019 The policies define an \u2018occurrence\u2019 as an \u2018accident.\u2019 \u2018Accident\u2019 is undefined. The counties\u2019 lawsuits allege Aloha acted recklessly \u2013 it knew of climate risk but emitted \u2013 and misled the public about the dangers of emitting \u2013 greenhouse gases anyway.\u201d<\/p>\n\n\n\n As to the second question, the justices found in favor of AIG. \u201cAIG argued that Aloha\u2019s conduct was intentional,\u201d they wrote, \u201ctherefore the counties\u2019 lawsuits do not raise an \u2018occurrence\u2019 under the policies. Aloha understood climate science, so climate-caused damage was expected, not fortuitous, AIG said. Plus, the policies\u2019 pollution exclusions bar coverage for the lawsuits\u2019 claims.\u201d<\/p>\n\n\n\n After a lengthy discussion of whether greenhouse gases should be considered pollutants in the traditional sense of the word, the justices agreed that they should be. \u201cTraditional environmental pollution has three main features: (1) the release of a damaging substance, (2) into the environment, (3) that causes harm because of its presence in the environment. These attributes align with what insurance industry drafters intended, what \u2018contaminant\u2019 means, and what a policyholder expects. Also, these features match the plain meaning of pollution,\u201d the justices opined, citing Black\u2019s Law Dictionary.<\/em><\/p>\n\n\n\n \u201cGreenhouse gases, including carbon dioxide, produce \u2018traditional\u2019 environmental pollution. Aloha\u2019s gasoline produces GHGs. These gases accumulate in the atmosphere and trap heat. Because they are released into the atmosphere and cause harm due to their presence in the atmosphere, GHGs are pollutants.\u201d<\/p>\n\n\n\n Following the release of the Supreme Court\u2019s decision on the two questions, Aloha and AIG were instructed to submit to the court a status report, setting forth their respective positions in light of the Supreme Court\u2019s ruling.<\/p>\n\n\n\n Aloha attorneys locked onto a statement in that ruling purporting to describe the issue before the federal court: \u201cWhether Aloha is ultimately entitled to a defense under the [1980] policies is a question for the [federal] District Court. To award coverage under those policies, the District Court must find that the counties\u2019 complaint alleges property damage during the policies\u2019 coverage period.\u201d<\/p>\n\n\n\n Aloha\u2019s attorneys go on to cite language in the counties\u2019 complaints referring to property damage. \u201cAs such,\u201d they conclude, \u201cgiven the Hawai\u02bbi Supreme Court\u2019s ruling that greenhouse gases cause damage to the environment upon being released into the atmosphere, there are sufficient allegations of property damage taking place during the two AIG policy periods (1986-1988) to trigger a duty to defend under those policies. Accordingly, Aloha requests that the District Court set a supplemental briefing schedule on cross motions for summary judgment regarding Defendants\u2019 duty to defend Aloha under the two AIG policies at issue.\u201d<\/p>\n\n\n\n AIG attorneys, on the other hand, honed in on the Supreme Court\u2019s answer to the second certified question, finding that greenhouse gases are indeed pollutants. This, they say, means that \u201cthe next steps in this matter are straightforward \u2013 the Court should grant the AIG Insurers\u2019 motion for partial summary judgment and deny Aloha\u2019s motion for partial summary judgment.\u201d<\/p>\n\n\n\n If Aloha disagrees with the court\u2019s finding, they write, \u201cit can appeal that determination to the Ninth Circuit when final judgment is entered in favor of the AIG Insurers.\u201d<\/p>\n\n\n\n Meanwhile, in state courts, litigation in both the Maui and Honolulu cases has been on hold as the appeals run their courses.<\/p>\n\n\n\n \u2014 Patricia Tummons<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" In 2020, Honolulu and Maui brought suits in the respective circuit courts of their counties against petroleum companies that have operated in Hawaiʻi for decades. The lawsuits allege that the companies knew for a very long time that the use … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":16212,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11,530],"tags":[7],"class_list":["post-16211","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-climate-change","category-november-2024","tag-patricia-tummons"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16211","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=16211"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16211\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/16212"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16211"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16211"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16211"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}