On September 21, 2012, the Ninth Circuit Court of Appeals issued an unsurprising but noteworthy opinion upholding the district court for the Northern District of California’s dismissal of climate-change related public nuisance claims in Native Village of Kivalina v. ExxonMobil Corp., 663 F.Supp.2d 863 (N.D. Cal. 2009). No. 09-17490, slip op. (9th Cir. Sept. 21, 2012).  As I outlined in an article last year, Kivalina was amongst a quartet of high profile cases from various parts the country in which plaintiffs were attempting to use the age-old common law doctrine of public nuisance to hold energy companies and other large emitters of “Greenhouse Gases” (GHGs) directly responsible for harms allegedly caused by climate change. Given Congressional inaction on regulating GHGs, plaintiffs saw a tobacco-settlement-sized window of opportunity to use the judicial branch to advance their fight against climate change.

Of the four cases, Kivalina had perhaps the most immediate appeal in that its underlying story was easy to understand, easy to explain—a poster child for climate change. Kivalina is community of approximately 400 Inupiat Eskimos located some 70 miles north of the Arctic Circle on the southern tip of a razor-thin, six-mile-long barrier reef delineating the Northwest coast of Alaska. With rising global temperatures, the ice barrier insulating the village from coastal storm waves has been steadily shrinking. The resulting erosion, the plaintiffs claimed, has rendered the village uninhabitable, requiring its relocation to the Alaskan mainland at a cost of $95 million to $400 million.

Kivalina’s vulnerability to storm waves is apparent.

The village sued 24 oil, energy, and utility companies to try and cover these costs, alleging the companies’ excessive emission of GHGs contributed to global warming, which caused the village’s protective ice wall to melt, which in turn forced the village to relocate. Under state and federal common law, the village argued, the defendants’ actions constitute a private and public nuisance. The Northern District of California dismissed Kivalina’s claims as presenting nonjusticiable political questions—finding, among other things, that the legislative branch, not the judicial branch, should be answering questions such What is the relative social value of GHG emissions vs. the harm they create? and Who should bear the costs of climate change? The district court also concluded the village lacked standing. As a result, the court did not reach the merits of the village’s nuisance claims. Kivalina appealed to the 9th Circuit.

However, as Kivalina’s shoreline continued to erode, the legal landscape also shifted. Dramatically. First, Congress did finally begin taking small but steady steps to regulate GHGs. The Supreme Court’s 2007 decision in Massachusetts v. EPA, 549 U.S. 497 (2007)—which clarified that GHGs are an “air pollutant” subject to regulation under the Clean Air Act (CAA)—set off a domino chain of regulatory actions by EPA, including passage of the “Tailoring Rule,” which specifically regulates GHG emissions from stationary sources.  Second, the Supreme Court ruled on one of the other climate-change nuisance cases, American Electric Power Co., Inc. v. Connecticut (“AEP”), 131 S. Ct. 2527 (2011). In AEP, the high Court concluded that in the Clean Air Act, Congress has directly addressed the issue of domestic GHG emissions from stationary sources and has therefore “displaced” federal common law claims such as public nuisance. On this basis, the Court dismissed the AEP plaintiffs’ public nuisance claims.

The Ninth Circuit’s decision on the Kivalina appeal began and ended with AEP, avoiding discussions of standing and the political question doctrine, let alone the merits of Kivalina’s nuisance claims:

We need not engage in that complex issue and fact-specific analysis in this case, because we have direct Supreme Court guidance. The Supreme Court has already determined that Congress has directly addressed the issue of domestic greenhouse gas emissions from stationary sources and has therefore displaced federal common law.

The fact that the Kivalina plaintiffs sought damages, as opposed to simply injunctive relief as in AEP, made no difference, the court held, noting previous Supreme Court decisions holding that the type of remedy asserted is not relevant to the applicability of the doctrine of displacement. Accordingly, the Ninth Circuit summarily affirmed the district court’s dismissal.

So where does this leave the poor Inupiat of Kivalina? The Ninth Circuit recognized that its conclusion that the village’s nuisance claims are displaced by statutory law “obviously does not aid Kivalina, which itself is being displaced by the rising sea.” However, the court held, “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.”

And so it goes.

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