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Courts have upheld insurers’ disclaimers on mold, lead, and asbestos claims under comprehensive general liability (CGL) policies, evidencing the importance of maintaining affirmative cover in the emerging environmental insurance marketplace. Removing a CGL mold, lead, or asbestos exclusion is helpful, but insurers may assert a coverage defense and not pay a claim for reasons that have included: failure to meet the burden of proof, failure to trigger coverage, an absolute pollution exclusion, a preexisting condition exclusion, a defective design exclusion, a faulty workmanship exclusion, a business risk exclusion, a known loss or loss in progress, a custody and control exclusion, an owned property exclusion, and late notice. Accordingly, affirmative coverage grants contained in environmental insurance policies are necessary to protect against such losses and maximize recoveries.

Building “green” and seeking certification are becoming necessary considerations for any construction project or construction improvement. The benefits and risks associated with building green will be explored in this article, and insurance solutions are offered. Certified green structures should provide healthier environments to work and live. Productivity should increase and sickness and absenteeism should decrease. The popularity, importance, and number of green building projects will continue to increase. However, green building also involves increased litigation risks associated with design, construction, ownership, and operation. This article will explore those risks, and insurability of such claim exposures. Many of those risks are insurable; some are currently uninsurable.

Climate change, characterized by higher surface and water temperatures, will likely lead to more frequent and severe storms, floods, rising sea levels, wildfires, and loss of a variety of species. The monetary loss attributable to these events could be enormous, resulting in a variety of first-party insurance claims and third-party lawsuits. The availability of insurance coverage to pay these claims will depend on the nature of weather-related losses and the particular policies in force. Insurers have also begun to develop products that pay to rebuild to “greener” standards after fortuitous losses, encourage lower carbon emissions, and provide incentives for the implementation of sustainable business and personal practices.

A fundamental question reported in hundreds of court decisions and evaluated every day by claims adjusters is whether a constituent that caused injury and damage is a “pollutant.” If yes, the claim will most often not be covered under general liability, professional, property, umbrella, or other policies because of the applicability of a pollution exclusion. Based upon our review of 200 cases, we determined that in 140, or 70 percent of the time, the constituent was considered a “pollutant” and the insurance claim was denied. In order to have insurance for “irritants” or “pollutants,” an insured must obtain specific pollution coverage.

New York's new 107-page brownfields law encourages the redevelopment of contaminated properties in order to increase tax revenues, revitalize communities, create jobs, protect the environment, and preserve open space. The legislation contains significant financial incentives to volunteers and municipalities to investigate, remediate, and redevelop brownfields to promote the reuse of such properties. While the law provides certain liability protection for claims by the State, it retains the “polluter pays” philosophy and contains scary re-opener provisions. This article will provide a brief overview of New York's recently enacted environmental law and explain why the legislation encourages the procurement of environmental insurance to mitigate the risks inherent with brownfield redevelopment projects.

Attempts by some courts to maximize insurance coverage in cases before them have resulted in some unfortunate and diverse rulings as to which policy periods should be implicated and how to assess the amount of costs attributable to policy periods when an insured is responsible for remediation costs to clean up contamination. This article argues for a manifestation trigger of coverage because it follows the fundamental principles of insurance law, provides simplicity and certainty as to date of loss, and avoids allocation battles. An injury‐in‐fact trigger is an alternative approach which is consistent with most insurance contracts as long as the insured demonstrates that some actual damage occurred during the policy period. This article advocates the pro rata time‐on‐the‐risk allocation approach adopted in Northern States Power when multiple periods of time are triggered, and disagrees with the joint and several liability allocation approach adopted in Keene and recently in CSXT. Some courts’ allocation a...