Climate Change Litigation

Ninth Circuit Affirms Dismissal of Federal Common Law Climate Change Claims

On September 21, 2012, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld a decision of the U.S. District Court for the Northern District of California dismissing the federal common law nuisance and civil conspiracy damage claims of the Native Village of Kivalina and the City of Kivalina against a group of U.S. oil, energy, and utility companies ("Energy Producers"). The plaintiffs, located on a coastal Alaskan island, alleged that the greenhouse gas emissions of the Energy Producers have contributed to climate change, which in turn severely eroded the land where Kivalina sits and threatens it with imminent destruction and other global warming-related impacts.

The court found that since the Clean Air Act provides for the regulation of greenhouse gas emissions, the federal common law doctrines have been displaced and the claims failed. Kivalina v. Exxon Mobil Corp., ___ F.3d___, 2012 WL 4215921 (9th Cir. Sept. 21, 2012). Kivalina is a remote village that is home to approximately 400 residents and sits on a six-mile barrier reef on the northwest coast of Alaska, which has been a home to the Inupiat Native Alaskans for hundreds of years. As alleged by Kivalina, arctic sea ice long served as a barrier against waves and protected the village from erosion. However, Kivalina alleged that because sea ice levels have decreased significantly in recent years as a result of climate change, the village has become at risk to storms and flooding. Kivalina brought suit against the Energy Producers alleging that the Energy Producers' substantial contribution to global warming, in the form of greenhouse gas emissions, represented a public nuisance under the federal common law. Kivalina also claimed that certain of the Energy Producers were also guilty of a civil conspiracy to conceal the harmful effects of global warming. The Court of Appeals upheld dismissal of both claims, holding that a federal common law claim does not lie when the question is controlled by federal legislation that displaces otherwise applicable federal common law. The court held that Kivalina's claim was displaced by the Clean Air Act, in light of the U.S. Supreme Court's earlier holding in Massachusetts v. EPA, 549 U.S. 497 (2007), that the Act empowered the U.S. Environmental Protection Agency to regulate greenhouse gas emissions. In essence, the Court of Appeals found that Congress...