Today, the Ninth Circuit upheld a decision of a federal district court that dismissed damages claims against several oil and energy companies for their lawful emissions that allegedly contributed to the erosion of the Alaskan coastal island of Kivalina. The court agreed with the arguments of the industry defendants, supported in an amicus brief filed by White & Case LLP on behalf of the Washington Legal Foundation, that the plaintiffs' federal common law claim for damages had been displaced by the Clean Air Act.
In Native Village of Kivalina, et al. v. ExxonMobil Corp., No. 09-17490, the city of Kivalina—located on a small island off the coast of Alaska—sued several oil and power companies to recover $400 million, alleging in public nuisance claims that the companies "tortiously" contributed to the global warming that has severely eroded the island's shoreline, requiring its residents to be relocated. The district court dismissed Kivalina's claims on grounds that the plaintiffs lacked standing because their injuries are not "fairly traceable" to any of the defendants' alleged wrongdoing; and that the issues raised by the complaint require a legislative, not a judicial, solution.
The Ninth Circuit, without reaching the issue of standing, affirmed the dismissal on the ground that federal public-nuisance actions based on global warming have been displaced by the Clean Air Act.
In its opinion, the Ninth Circuit followed the Supreme Court's decision in AEP v. Connecticut, announced on June 20, 2011.
In AEP, the Supreme Court put the public nuisance climate-change genie back in the bottle, when it vacated a Second Circuit decision and rejected public nuisance claims seeking injunctive relief, holding that the Clean Air Act displaces private nuisance law where plaintiffs base nuisance claims on allegations that emission of greenhouse gases have contributed to global warming. AEP v. Connecticut, 131 S. Ct. 2527 (2011).
AEP largely controlled the outcome in Kivalina, where the Ninth Circuit affirmed dismissal of Kivalina's lawsuit based on AEP's displacement analysis. The Ninth Circuit also held that the doctrine of displacement applies equally to climate change claims seeking injunctive relief as well as to those claims seeking damages.
White & Case Partners Doug Halsey and David Draigh filed amicus briefs in both cases on behalf of the Washington Legal Foundation.
In Kivalina, the amicus brief showed that the plaintiffs did not and could not allege facts from which a court could conclude that their injuries are fairly traceable to the defendants' conduct—particularly because the defendants were only 19 of literally countless worldwide contributors to global warming, and because greenhouse gases, no matter where emitted, merge in the atmosphere into an undifferentiated mass that may contain emissions from prior decades or even centuries (Click here to view the amicus brief).
Judge Philip M. Pro, who concurred with the majority, agreed, stating that Kivalina could not fairly trace its alleged injury to the mass of emissions "undifferentiated in the global atmosphere," and therefore did not have standing "to pick and choose against all the greenhouse gas emitters throughout history to hold liable for millions of dollars in damages." Indeed, Kivalina sought to impose boundless liability, threatening the viability of entire industrial sectors, even though those sectors are minor contributors to greenhouse gas levels, their emissions are lawful, and they undoubtedly provide services of great social utility.
In AEP, where eight states had sued utilities claiming their permitted emissions contribute to global warming and should be judicially enjoined as a public nuisance, White & Case's amicus brief supported the Tennessee Valley Authority and four private utilities: American Electric Power Company, Duke Energy Corporation, Southern Company, and Xcel Energy Inc. The district court had dismissed the suit as presenting non-justiciable political questions. But the Second Circuit reversed, finding that the claim was an "ordinary tort" and that the states' allegation that the utilities contributed to global warming was sufficient to satisfy the causation element of standing. As noted above, however, the Supreme Court reversed the Second Circuit, and there is a straight line from AEP to the Ninth Circuit's affirmance of the dismissal of Kivalina's claims.
"Although the Kivalina and AEP decisions effectively foreclose federal nuisance claims based on allegations that the emissions of greenhouse gasses has contributed to global warming, plaintiffs may still attempt to pursue these claims, however tenuous, in state court," says Halsey.
White & Case represents numerous industries that have been the primary targets in these climate-change lawsuits, including clients in the power, oil & gas, and mining sectors. The firm has experience in complex environmental litigation in state and federal courts.
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