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Last Friday, the U.S. Court of Appeals for the Ninth Circuit held that the federal common law claim of public nuisance for global warming by greenhouse gases by the Alaskan Village of Kivalina was displaced by the Clean Air Act and Environmental Protection Agency regulations.
"Our conclusion obviously does not aid Kivalina, which itself is being displaced by the rising sea," concluded Circuit Judge Sidney R. Thomas. "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."
In 2008, the village and city of Kivalina, Alaska, filed suit against 22 energy companies, including oil giants such as ExxonMobil Corp., BP Plc, Chevron Corp, and Shell Oil Co., alleging a breach of the federal common law of public nuisance for unreasonable discharge of greenhouse gases leading to global warming. Kivalina asserted that global warming has diminished sea ice formation on the coastline of the island city, sea ice that has traditionally protected the town against erosion and damaging winter storms. As a result of these environmental changes, Kivalina is being forced to relocate (at an expense of more than $95 million, according to the US Army Corps of Engineers).
The Court affirmed the dismissal of the case by the District Court for Northern California for lack of subject matter jurisdiction and standing. The District Court dismissed for these reasons, but the Court of Appeals dismissed purely on the basis of CAA displacement. However, in so doing, the 9th Circuit did not answer two interesting questions raised by the case.
Kivalina accused defendants of "conspiring to mislead the public about the science of global warming," a conspiracy charge reminiscent of public nuisance complaints raised against Big Tobacco and suppression of health data. However, neither the District Court nor the 9th Circuit reached this question, so the case provides no guidance as to the merits of this claim as a tool for future suits.
A second issue is whether future plaintiffs must establish geographic proximity to greenhouse gas polluters in order to establish causality. Judge Saundra Armstrong, in her opinion for the District Court, concluded that Plaintiffs must prove "use of their property is negatively impacted by virtue of their proximity to the discharge." To do otherwise, "suggests that every inhabitant on this Earth is within the zone of discharge, thereby effectively eliminating the issue of geographic proximity in any case involving harms caused by global warming."
This decision was not discussed by the 9th Circuit, but when added to the decision in AEP v. Connecticut (2011), it appears to cut off the right to assert federal common law with respect to greenhouse gases. One issue that the decision explicitly still leaves open is whether a state common law claim for nuisance for GHGs might still be viable.
The full decision of Native Village of Kivalina v. ExxonMobil Corp 9th Cir., No. 09-17490, 9/21/12 can be read here.
The District Court decision can be read here.
Lexis.com subscribers can access Lexis enhanced versions of the Native Village of Kivalina v. ExxonMobil Corp., 2012 U.S. App. LEXIS 19870 (9th Cir. Cal. Sept. 21, 2012) and Native Village of Kivalina v. Exxon Mobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009) decisions with summaries, headnotes, and Shepard's.