The Death Of Environmental Common Law?: The Ninth Circuit's Decision In Native Village Of Kivalina v. ExxonMobil Corp.

On Sept. 21, 2012, a three-judge panel of the United States Court of Appeals for the Ninth Circuit handed down its decision in the case of Native Village of Kivalina v. ExxonMobil Corp., No. 09-17490, 2012 U.S. App. LEXIS 19870 (9th Cir. Sept. 21, 2012). The unanimous decision affirmed the trial court's dismissal of the plaintiffs' action for damages against multiple oil, energy and utility companies based on allegations that greenhouse gas emissions emitted by the defendants have resulted in global warming, which, in turn, has severely eroded the land where the plaintiffs reside and threatens them with imminent destruction. This decision, if left standing, effectively ends the life of federal common law. More importantly, it has grave implications for the future of environmental common law more generally, and could lead to a sea change in how environmental common-law claims are litigated in the future. In particular, it could significantly strengthen the preemption defense for defendants in all environmental common-law actions, under both federal and state law. This decision and its significant implications will be discussed in detail below.


Despite the trial court in 2009 dismissing the case on political question and standing grounds, the chief focus of the Ninth Circuit's decision was the arcane and rarely invoked doctrine of displacement. This was not a complete surprise since the U.S. Supreme Court had decided the AEP v. Connecticut, 131 S. Ct. 2527, 2535, 180 L. Ed. 2d 435 (2011) , case last year on the displacement doctrine, and the legal theory at issue in Kivalina was the federal common law of public nuisance, just as it was in AEP. It is axiomatic that "there is no federal general common law," but in certain areas of national concern, such as environmental protection, federal courts have the power to fill in "statutory interstices" and, if necessary, even "fashion federal law." This specialized federal common law has been invoked — albeit rarely — by federal courts in the past. However, when there is a federal statute that speaks directly to the issue posted by the federal common-law action, then courts find that the federal common law has been displaced — a concept similar to preemption.

Judge Sidney Thomas, writing for the panel in Kivalina, relied heavily on the U.S. Supreme Court's decision in AEP: "We need not engage in [a] complex issue and fact-specific analysis in this case, because we have direct Supreme Court guidance" that "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." Judge Thomas does note, however, one key distinction between the facts in Kivalina and those in AEP: "Kivalina does not seek abatement of emissions; rather, Kivalina seeks damages for harm caused by past emissions." He found though that "the Supreme Court has instructed that the type of remedy asserted is not relevant to the applicability of the...

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