By Keri L. Holleb Hotaling, Partner, Jenner & Block LLP
On September 21, 2012, the Ninth Circuit Court of Appeals in Native Village of Kivalina v. ExxonMobil Corp. et al., 9th Cir., No. 09-17490, ruled that the Alaska town of Kivalina could not sue energy companies under a federal common law claim of public nuisance for global warming caused by greenhouse gas emissions. Please click here, Native Village of Kivalina v. ExxonMobil Corp., 2012 U.S. App. LEXIS 19870 (9th Cir. Cal. Sept. 21, 2012), to see opinion.
Kivalina is a coastal Alaskan town approximately seventy miles north of the Arctic Circle, whose residents are indigenous Alaskans. The town contended that due to global warming and a commensurate sea level rise, inhabitants were forced to leave and relocate further inland. Kivalina sued twenty-two oil, energy, and utility companies, alleging federal common law nuisance; state law private and public nuisance; civil conspiracy; and concert of action. The residents of the Village were seeking roughly $400 million in damages. The Northern District of California dismissed the action on alternate grounds: (i) the action was prohibited by the political question doctrine, and (ii) the plaintiffs lacked standing to pursue their claims. The town appealed to the Ninth Circuit.
The Ninth Circuit held that the Clean Air Act and, and the Environmental Protection Agency action that the Act authorizes displaced Kivalina's common law claims. The Ninth Circuit largely followed the reasoning of the Supreme Court in American Electric Power Co., Inc. v. Connecticut, ---U.S.----, 131 S. Ct. 2527, 180 L. Ed. 2d 435 (2011), in affirming the dismissal of the action by the district court finding, "[i]n sum, the Supreme Court has held that federal common law addressing domestic greenhouse gas emissions has been displaced by Congressional action. That determination displaces federal common law public nuisance actions seeking damages, as well as those actions seeking injunctive relief." The appeals court concluded by noting, "[o]ur conclusion obviously does not aid Kivalina, which itself is being displaced by the rising sea. 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." Kivalina was one of the last remaining major climate tort suits pending in the federal courts.
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