On August 9, 2012, the California Supreme Court handed down its much anticipated decision in State of California v. Continental Ins. Co. The California Supreme Court held that the “all sums” method of allocation applies in California and that an insured can horizontally stack all successively triggered policies in an environmental property damage case involving a single occurrence causing continuous and progressive contamination throughout multiple policy years.

Therefore, a liability insurer is obligated to pay all sums the insured become obligated to pay for property damage attributable to a contaminated site up to policy limits as long as some of the continuous property damage occurred while that particular insurer’s policy was on the loss.  An insurer cannot limit its liability to just the amount of loss that occurred during its particular policy period.  The Supreme Court also concluded that absent specific “anti-stacking” policy language, an insured is entitled to “stack” the consecutive policy limits of each successively triggered policy to recover the limits of all policies on the risk for the loss.

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Last week, the State Department announced the formation of the Climate and Clean Air Coalition to Reduce Short-Lived Climate Pollutants (Coalition).  In what many are calling a response to the extremely slow pace at which the international community is working to negotiate a global climate change treaty, the United States and five other countries are launching the program in an effort to reduce emissions of the most common short-lived, fast-acting climate change pollutants. 

Representatives from Canada, Bangladesh, Ghana, Mexico, and Sweden joined Hillary Clinton in ushering in the effort which will target emissions of methane, hydrofluorocarbons (HFCs) and black carbon, which are responsible for about one-third of the global warming problem.  These three pollutants stay in the atmosphere for just days or years, unlike carbon dioxide, which remains for about 100 years. 

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Harnessing the wind – such an attractive notion in these times when awareness of the benefits of clean renewable energy is heightened.  Wildlife conservation groups (and in an ironic and hilarious way, hunting groups) are speaking out about an ugly side-effect of wind energy: bird deaths.  Yes, that’s right.  Hundreds of thousands of birds are killed each year by collisions with wind turbines.  (The number of actual deaths per year is disputed by different sources however, the U.S. Fish and Wildlife Service estimated in 2009 that 440,000 bird deaths per year were attributable to wind turbines.) 

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On Tuesday, the Environmental Protection Agency (EPA) announced the issuance of the final Chemical Data Reporting (CDR) rule under the Toxic Substances Control Act (TSCA). The rule will increase the amount and kind of information required to be reported by chemical manufacturers, including increasing the range of chemicals to which the reporting requirements apply, as well as increase the frequency of the required reporting (from every 5 years to every 4 years). EPA also states that the revised rule will decrease manufacturers’ ability to assert confidentiality claims.

One of the more interesting aspects of the rule, however, is the new requirement that the information be submitted electronically. Manufacturers affected by the rule will be required to use an EPA-provided, web-based reporting tool to submit reports through the Internet. Paper submissions will no longer be accepted. This will allow the public to more easily access the information – creating more transparency. Additionally, similar to the way electronic processing of prescriptions has allowed pharmacists to predict a potentially dangerous drug interaction, this new requirement will improve data quality and EPA’s ability to use the information to identify and manage potential risks associated with the chemicals.

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In late January and just as many publicly-traded companies were preparing their annual reports, the U.S. Securities and Exchange Commission published a 29-page release on how, when and if those companies should disclose risks and costs associated with greenhouse gas emissions and climate change to their stockholders. (Click here to read.)

Companies are already required to disclose how pending litigation and potential legislation might affect their bottom lines. The SEC, in fact, is quick to point out that its new guidelines do not actually change or codify any laws. Rather, they simply reinforce the concept that any risks — even climate change — could be material and thus subject to public disclosure.
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