Court Affirms Dismissal of Nuisance Claim Against Energy Companies by Alaska Village

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).

Executive or Legislative Branch Attention

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 law claims.

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.”

Ninth Circuit follows Supreme Court

The Ninth Circuit followed the reasoning of the Supreme Court in the 2011 case.

“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 said.

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