Toxic Tort and Environmental Law Update - October 2012: Ninth Circuit Upholds Dismissal of a Public Nuisance Lawsuit
[author: Eliot Harris]
On September 21, 2012, the Ninth Circuit Court of Appeals affirmed the dismissal of a lawsuit filed by the Alaskan village of Kivalina against 23 energy companies. Native Village of Kivalina v. ExxonMobil Corp., 2012 WL 4215921. In the lawsuit, the plaintiff alleged that massive greenhouse gas emissions from energy companies have resulted in global warming, which, in turn, has severely eroded the land where the plaintiff’s village sits and threatened it with imminent destruction. The plaintiff further alleged that the emission of greenhouse gases had left the town uninhabitable by eroding the sea ice that protected it from fall and winter storms. The plaintiff argued that the emission of carbon dioxide and other greenhouse gases contributes to global warming, which constitutes a substantial and unreasonable interference with public rights, including the rights to use and enjoy public and private property.The plaintiff sought monetary damages of up to $400 million, under a federal common law claim of public nuisance, to cover the costs of relocation of the village.
In September 2009, the U.S. District Court for the Northern District of California held that the political question doctrine precluded judicial consideration of the plaintiff’s federal public nuisance claim. The court determined that resolution of this nuisance claim would require determining what would have been an acceptable limit on the level of greenhouse gases emitted by the defendants and who should bear the cost of global warming – matters which the court concluded were more appropriately left for determination by the executive or legislative branch. The District Court also found that the plaintiff could not demonstrate either a “substantial likelihood” that the defendants’ conduct caused the plaintiff’s injury nor that the “seed” of its injury could be traced to any of the defendants. Moreover, the court held that the plaintiff could not establish that it was within sufficient geographic proximity to the defendant’s alleged “excessive” discharge of greenhouse cases to infer causation.
In affirming that decision, a three-judge panel of the Ninth Circuit relied heavily on the U.S. Supreme Court's 2011 ruling in American Electric Power v. Connecticut (AEP), which held that the Clean Air Act and U.S. Environmental Protection Agency’s authority displaced federal common law claims over the emissions.SeeAmerican Electric Power Co., Inc. v. Connecticut, 131 S. Ct. 2527, 2535 (2011). In AEP, eight states, the city of New York, and three private land trusts brought a public nuisance action against various defendants for emission of carbon dioxide and other greenhouse gases that created a “‘substantial and unreasonable interference with public rights,’ in violation of the federal common law of interstate nuisance,” and sought injunctive relief through a court-ordered imposition of emissions caps. However, the Supreme Court affirmed the dismissal of this lawsuit by finding that the Clean Air Act already “provides a means to seek limits on emissions of carbon dioxide from domestic power plants,” and found that “the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement” of such emissions.
Unlike the plaintiffs in AEP, the plaintiff in Kivalina sought monetary damages, not just injunctive relief. In other words, the plaintiff in Kivalina did not seek abatement of emissions, but instead damages for harm caused by past emissions. However, the Ninth Circuit in Kivalina held that, under current Supreme Court jurisprudence, if a federal a common law cause of action is displaced by legislation, then displacement extends to all remedies. The Kivalina court found that it would be “incongruous” to allow a federal common law cause of action to proceed in another form, when it had been extinguished by congressional displacement.
According to the Kivalina court, it was immaterial that the alleged damage occurred before the EPA created standards for greenhouse gas emissions because “[t]he doctrine of displacement is an issue of separation of powers between the judicial and legislative branches, not the judicial and executive branches.” Moreover, the Supreme Court had previously concluded that Congress’ empowerment of the EPA to regulate greenhouse gas emissions “was a determination that Congress had ‘spoken directly’ to the issue [of greenhouse gas emissions] by legislation.” See AEP, 131 S. Ct. at 2537. Therefore, the Ninth Circuit held that the plaintiff’s claims in Kivalina for abatement damages were similarly displaced by the Clean Air Act and the EPA’s authority on this issue.
The ruling in Kivalina answers the question left open by the Supreme Court in AEP, and essentially closes the door on federal common law nuisance claims in greenhouse gas emission lawsuits brought to address the effects of global warming. However, both AEP and Kivalina declined to rule on the availability of state law nuisance claims for damages caused by global warming. There has been little activity in state courts in climate change nuisance litigation, as potential plaintiffs have waited for the Kivalina ruling. However, now that Kivalina has been decided, there may be an uptick in filings of nuisance claims regarding climate change in state courts. Some of the issues that may arise in such litigation would include whether states’ nuisance laws are preempted by federal law on this issue and whether plaintiffs would be able to enforce judgments obtained in state courts across state lines.