A federal appeals court ruled Sept. 21 that Alaska's Village of Kivalina may
not sue energy companies under a federal common law claim of public nuisance for
global warming caused by greenhouse gas emissions (Native Village of Kivalina
v. ExxonMobil Corp., 9th Cir., No. 09-17490, 9/21/12).
The U.S. Court of Appeals for the Ninth Circuit held that the Clean Air
Act and Environmental Protection Agency actions taken under the statute
“displace” a claim by the native village and city of Kivalina for damages caused
by greenhouse gas emissions by energy producers.
The native village--a federally recognized Native Alaskan tribe--and the city
asserted that the greenhouse gas emissions and resulting warming have diminished
sea ice formation on the coastline, exposing the land where the city is situated
to erosion. The village is being forced to relocate due to flooding and erosion
residents allege is the result of climate change.
Kivalina filed the action against the energy producers in the U.S. District
Court for the Northern District of California.
The defendants, 22 energy companies, moved to dismiss the action for lack of
subject matter jurisdiction. They include oil companies such as ExxonMobil
Corp., BP Plc, Chevron Corp., and Shell Oil Co., and electricity generators such
as American Electric Power Co. and Duke Energy.
“They argued that Kivalina's allegations raise inherently nonjusticiable
political questions because to adjudicate its claims, the court would have to
determine the point at which greenhouse gas emissions become excessive without
guidance from the political branches,” the appeals court wrote.
The companies also asserted Kivalina lacked Article III standing to raise its
claims because it alleged no facts showing that its injuries are “fairly
traceable” to the actions of the energy companies.
The California district court held that the political question doctrine
precluded judicial consideration of Kivalina's federal public nuisance claim
(198 DEN A-5, 10/16/09).
Issues raised by Kivalina “were matters more appropriately left for
determination by the executive or legislative branch in the first instance,” the
appeals court said.
Additionally, the district court held that Kivalina lacked Article III
standing to bring a public nuisance suit because Kivalina could not show a
“substantial likelihood” the defendants' conduct was causing the plaintiffs'
injury. Further, plaintiffs could not show that the “seed” of its injury could
be traced to any of the energy producers.
The district court declined to exercise supplemental jurisdiction over state
The federal appeals court invoked the Supreme Court's 2011 ruling in
American Electric Power Co. v. Connecticut, 131 S. Ct. 2527, 72 ERC 1609
(2011), which asked whether such a theory is viable under federal common law
and, if so, whether any legislative action has displaced it.
In that opinion, the Supreme Court held that similar claims made by states
were displaced by the Clean Air Act (119 DEN A-5, 6/21/11).
James R. May, a law professor at Widener University in Wilmington, Del., told
BNA in a Sept. 21 email the decision is “an unfortunate continued curtailment of
common law remedies that have existed for hundreds of years. The plaintiffs
deserved their day in court.”
The Ninth Circuit followed the reasoning of the Supreme Court in the 2011
“In sum, the Supreme Court has held that federal common law addressing
domestic greenhouse gas emissions has been displaced by Congressional action,”
the appeals court wrote.
“That determination displaces federal common law public nuisance actions
seeking damages, as well as those actions seeking injunctive relief,” the court
The appeals court affirmed the dismissal by the district court.
“Our conclusion obviously does not aid Kivalina, which itself is being
displaced by the rising sea,” the appeals court concluded. “But the solution to
Kivalina's dire circumstance must rest in the hands of the legislative and
executive branches of our government, not the federal common law.”
The opinion was authored by Circuit Judge Sidney R. Thomas and joined by
Circuit Judge Richard R. Clifton. District Judge Philip M. Pro of the U.S.
District Court for the District of Nevada sat on the case by designation. Pro
concurred with the majority opinion.
By Robert C. Cook
The opinion of the U.S. Court of Appeals for the Ninth Circuit in Native
Village of Kivalina v. ExxonMobil Corp. is available at http://op.bna.com/env.nsf/r?Open=maln-8ycsny.
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