Native Village of Kivalina v. Exxonmobil Corporation
42 Envtl. L. Rep. (Envtl. Law Inst.) 20195, 2012 WL 4215921, 696 F.3d 849 (2012)
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Rule of Law:
The Clean Air Act, a comprehensive federal statute delegating authority to the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions, displaces federal common law public nuisance claims for harms allegedly caused by such emissions, barring claims for both injunctive relief and monetary damages.
Facts:
- The City of Kivalina and the Native Village of Kivalina are located on a barrier reef on the northwest coast of Alaska, populated primarily by Inupiat Native Alaskans.
- Historically, sea ice formed along the coast in fall, winter, and spring, shielding the village from powerful ocean storms.
- In recent years, due to warming temperatures, this protective sea ice has formed later, broken up earlier, and has been thinner and less extensive.
- As a result of the diminished sea ice, Kivalina has suffered severe land erosion from storm waves and surges, threatening the village's existence and forcing its residents to plan for relocation.
- Kivalina alleges this erosion is a direct result of global warming caused by the accumulation of greenhouse gases in the atmosphere.
- The defendant Energy Producers are numerous oil, energy, and utility companies whose operations are alleged to be substantial emitters of these greenhouse gases.
Procedural Posture:
- The Native Village of Kivalina and the City of Kivalina sued multiple Energy Producers in the U.S. District Court for the Northern District of California.
- Kivalina's complaint asserted a federal common law claim of public nuisance, seeking monetary damages.
- The Energy Producers filed a motion to dismiss the action pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
- The district court granted the motion to dismiss, holding that the political question doctrine precluded judicial consideration of the claim and that Kivalina lacked Article III standing.
- Kivalina (as appellant) appealed the district court's dismissal to the U.S. Court of Appeals for the Ninth Circuit; the Energy Producers are the appellees.
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Issue:
Does the Clean Air Act displace a federal common law public nuisance claim for monetary damages resulting from greenhouse gas emissions?
Opinions:
Majority - Judge Thomas
Yes, the Clean Air Act displaces a federal common law public nuisance claim for damages resulting from greenhouse gas emissions. The Supreme Court has already held in American Electric Power Co., Inc. v. Connecticut (AEP) that the Clean Air Act displaces federal common law claims seeking to abate (or enjoin) greenhouse gas emissions. Federal common law only exists to fill gaps where Congress has not legislated. The 'test for displacement' is whether a statute 'speaks directly to the question at issue.' Because the AEP court found the Clean Air Act speaks directly to the regulation of domestic greenhouse gas emissions, the federal common law cause of action is extinguished. Citing Middlesex County Sewerage Authority and Exxon Shipping Co., this court reasoned that if a cause of action is displaced, that displacement extends to all available remedies, including damages. Therefore, Kivalina's claim for damages under a federal common law theory of public nuisance is no longer viable.
Concurring - Judge Pro
Yes, I concur that Kivalina's claims are displaced. I write separately to note the tension between Supreme Court cases like Middlesex, which suggests displacement of a cause of action eliminates all remedies, and Exxon Shipping Co., which preserved a damages remedy under maritime law. Despite this tension, the comprehensive regulatory scheme of the Clean Air Act, as analyzed in AEP, clearly occupies the field, leaving no 'gap' for federal common law to fill, even for a damages remedy. Additionally, I would hold that Kivalina lacks Article III standing because its alleged injury is not 'fairly traceable' to these specific defendants, given that global warming is the result of countless sources of emissions over centuries.
Analysis:
This decision solidifies the broad preemptive scope of the Clean Air Act in the context of climate change litigation. By extending the Supreme Court's displacement holding in AEP from injunctive relief to monetary damages, the court effectively closed the door on federal common law as a vehicle for holding greenhouse gas emitters liable for climate-related harms. This ruling channels climate change disputes away from the judiciary's common law authority and toward the statutory framework established by Congress and implemented by the executive branch. Consequently, future litigants must rely on remedies provided within the Clean Air Act itself or pursue state law claims, which face their own preemption challenges.
