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United States Court of Appeals for the Ninth Circuit
November 28, 2011, Argued and Submitted, San Francisco, California; September 21, 2012, Filed
[*853] THOMAS, Circuit Judge:
The Native Village of Kivalina and the City of Kivalina (collectively "Kivalina") appeal the district court's dismissal of their action for damages against [**6] multiple oil, energy, and utility companies (collectively "Energy Producers").2 Kivalina alleges that massive greenhouse gas emissions emitted by the Energy Producers have resulted in global warming, which, in turn, has severely eroded the land where the City of Kivalina sits and threatens it with imminent destruction. Kivalina seeks damages under a federal common law claim of public nuisance.
The question before us is whether the Clean Air Act, and the Environmental Protection Agency ("EPA") action that the Act authorizes, displaces [**7] Kivalina's claims. We hold that it does.
The City of Kivalina sits on the tip of a six-mile barrier reef on the northwest coast of Alaska, approximately seventy miles north of the Arctic Circle. The city, which was incorporated as a unified municipality under Alaska state law in 1969, has long been home to members of the Village of Kivalina, a self-governing, federally recognized tribe of Inupiat Native Alaskans. The City of Kivalina has a population of approximately four hundred residents, ninety-seven percent of whom are Alaska Natives.
Kivalina's survival has been threatened by erosion resulting from wave action and sea storms for several decades. See City of Kivalina, Alaska: Local Hazards Mitigation Plan, Resolution 07-11 (Nov. 9, 2007). The villagers of Kivalina depend on the sea ice that forms on their coastline in the fall, winter, and spring each year to shield them from powerful coastal storms. But in recent years, the sea ice has formed later in the year, attached later than usual, broken up earlier than expected, and has been thinner and less extensive in nature. As a result, Kivalina has been heavily impacted by storm waves and surges that are destroying the land where [**8] it sits. Massive erosion and the possibility of future storms threaten buildings and critical infrastructure in the city with imminent devastation. If the village is not relocated, it may soon cease to exist.3
Kivalina attributes the impending destruction of its land to the effects of global [*854] warming, which it alleges results in part from emissions of large quantities of greenhouse gases by the Energy Producers. Kivalina describes global warming as occurring through the build-up of carbon dioxide and methane (commonly referred to as "greenhouse gases") that trap atmospheric heat and thereby increase the temperature of the planet. As the planet heats, the oceans become less adept at removing carbon dioxide from the atmosphere. The increase in surface temperature also causes seawater to expand. Finally, sea levels rise due to elevated [**9] temperatures on Earth, which cause the melting of ice caps and glaciers. Kivalina contends that these events are destroying its land by melting the arctic sea ice that formerly protected the village from winter storms.
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696 F.3d 849 *; 2012 U.S. App. LEXIS 19870 **; 42 ELR 20195; 75 ERC (BNA) 1289; 2012 WL 4215921
NATIVE VILLAGE OF KIVALINA; CITY OF KIVALINA, Plaintiffs-Appellants, v. EXXONMOBIL CORPORATION; BP P.L.C.; BP AMERICA, INC.; BP PRODUCTS NORTH AMERICA, INC.; CHEVRON CORPORATION; CHEVRON U.S.A., INC.; CONOCOPHILLIPS COMPANY; ROYAL DUTCH SHELL PLC; SHELL OIL COMPANY; PEABODY ENERGY CORPORATION; THE AES CORPORATION; AMERICAN ELECTRIC POWER COMPANY, INC.; AMERICAN ELECTRIC POWER SERVICES CORPORATION; DUKE ENERGY CORPORATION; DTE ENERGY COMPANY; EDISON INTERNATIONAL; MIDAMERICAN ENERGY HOLDINGS COMPANY; PINNACLE WEST CAPITAL CORPORATION; THE SOUTHERN COMPANY; DYNEGY HOLDINGS, INC.; XCEL ENERGY, INC.; GENON ENERGY, INC., Defendants-Appellees.
Subsequent History: US Supreme Court certiorari denied by Native Village of Kivalina v. Exxon Mobil Corp., 2013 U.S. LEXIS 3929 (U.S., May 20, 2013)
Prior History: [**1] Appeal from the United States District Court for the Northern District of California. D.C. No. 4:08-cv-01138-SBA. Saundra B. Armstrong, District Judge, Presiding.
Native Village of Kivalina v. Exxon Mobil Corp., 663 F. Supp. 2d 863, 2009 U.S. Dist. LEXIS 99563 (N.D. Cal., 2009)
federal common law, displaced, emissions, greenhouse, public nuisance, pollution, global, damages, warming, Energy, carbon dioxide, gases, common law, claim for damages, injunctive relief, punitive damages, allegations, air, atmosphere, nuisance abatement, remedies, federal common law nuisance claim, district court, maritime, oil, cause of action, interstate, regulation, limits, state law
Civil Procedure, Appeals, Standards of Review, De Novo Review, Jurisdiction, Subject Matter Jurisdiction, General Overview, Federal & State Interrelationships, Federal Common Law, Applicability, Real Property Law, Nuisance, Types of Nuisances, Public Nuisances, Preliminary Considerations, Erie Doctrine, Preemption, Business & Corporate Compliance, Climate Change, Environmental Law, Climate Change