On September 21, 2012, the United States Court of Appeals for the Ninth Circuit upheld a 2009 California federal district court decision dismissing claims by an Alaska Native American village against a large number of coal, oil and electric utility companies that the greenhouse gas (“GHG”) emissions of these companies constituted a public nuisance by causing massive erosion around the coastal village. See Native Village of Kivalina v. Exxon-Mobil Corp., No. 09-17490 (Sept. 21, 2012). The case is the first major court decision in this area following the Supreme Court’s decision in American Electric Power Co., Inc. v. Connecticut, 131 S. Ct. 2527 (2011), which held that federal common law claims based on GHG emissions are displaced by federal regulation of GHGs under the Clean Air Act.
The Plaintiffs in Kivalina tried to distinguish their case from AEP on the ground that the AEP Plaintiffs sought injunctive relief whereas the Kivalina Plaintiffs sought damages. The Court ruled, however, that the Clean Air Act displaces both damages and injunctive relief claims under federal nuisance law.
The ruling is significant because much of the post-AEP discussion of whether climate change nuisance claims remained viable after the Supreme Court’s decision centered on whether damage claims could still be brought. Moreover, since the Ninth Circuit is generally considered to be the most liberal of the federal Courts of Appeals, some speculated that the Kivalina decision might allow the Plaintiffs’ damage claims to proceed. The Court, however, in a decision written by Clinton appointee Sidney R. Thomas (and joined in by George W. Bush appointee Richard R. Clifton and Reagan appointee Philip M. Pro, a Nevada district court judge sitting by designation), did not do so.
In a concurring opinion, Judge Pro stated that he agreed with the Court’s decision that the Plaintiffs’ damages claims were displaced but under somewhat different reasoning. Judge Pro also stated he would have found that the Plaintiffs lacked standing to bring their claims on the ground that they had not “met the burden of alleging facts showing that Kivalina can plausibly trace their injuries to Appellees.”
The Plaintiffs may seek to have the case reheard en banc by the full Ninth Circuit. If they elect not to, or if they seek and are denied rehearing, they may file a petition for certiorari with the Supreme Court.
Even if the Kivalina decision stands, however, the decision will not terminate efforts to convince the courts to proceed with climate change nuisance law actions. Both AEP and Kivalina involved federal common law nuisance claims. In AEP, the Court noted that the Clean Air Act would act as a bar to state common law nuisance claims only if such claims were preempted. The AEP court did not rule on whether the Clean Air Act would preempt state common law nuisance claims. Neither did the Kivalina case, where the Plaintiffs’ state common law claims had been dismissed by the district court judge without prejudice to the ability of the Plaintiffs to refile the claims in state court. It now remains to be seen whether the Kivalina Plaintiffs will refile their state common law claims in state court and whether others will bring state common law climate change nuisance claims in other state courts or even in federal courts if there is diversity jurisdiction.