Metropolitan News-Enterprise


Monday, September 24, 2012


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Ninth Circuit Panel Rejects Alaskan Villagers’ Suit Against Energy Companies on Global Warming




The Clean Air Act has displaced the federal common law of public nuisance as a remedy for hazards such as global warming, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The court affirmed a district judge’s dismissal of a suit by the northwest Alaska village of Kivalina, which alleged that it faces imminent destruction as a result of erosion caused by man-made climate change.

The panel did not reach the substance of that claim, holding that an enforcement action by the Environmental Protection Agency is the sole federal remedy for the harm the village alleges.

“Our conclusion obviously does not aid Kivalina, which itself is being displaced by the rising sea,” Judge Sidney Thomas wrote. “But the solution to Kivalina’s dire circumstance must rest in the hands of the legislative and executive branches of our government, not the federal common law.”

Kivalina—located in the Chukchi Sea 83 miles north of the Arctic Circle and 625 miles northwest of Anchorage, according to The Associated Press—sought up to $400 million in relocation costs from nearly two dozen oil, power, and coal companies. The defendants included BP PLC, Exxon Mobil Corp., Chevron Corporation, Shell Oil Company, Xcel Energy, Inc. and Duke Energy Company.

Kivalina is home to about 400 people. Ninety-seven percent of them are Alaska Natives, primarily Inupiat, Thomas explained, and their longtime home is highly prone to storms.

The AP reported last week that the local school would reopen today after a five-week closure due to a storm that left the school and teacher housing without potable water. A 2003 General Accounting Office report cited by Thomas explained that the sea ice that protects the land from coastal storms has gradually been forming later in the year, breaking up earlier, and been thinner and less extensive.

“Remaining on the island…is no longer a viable option for the community,” the GAO concluded.

Thomas acknowledged that common law nuisance actions have been recognized as a valid remedy for air pollution.

But the rule “has limits,” the judge explained. “If Congress has addressed a federal issue by statute, then there is no gap for federal common law to fill.”

Congress, he said, need not expressly abrogate the common law, but need only speak directly to the subject.

He cited American Electric Power Co., Inc. v. Connecticut (2011) 131 S. Ct. 2527, which held that the Clean Air Act directly addresses the issue of domestic greenhouse gas emissions from stationary sources and thus has displaced federal common law with respect to the subject.

Thomas acknowledged that the Kivalina action differs from AEP in that the village is seeking damages, not abatement. But the Supreme Court has held in earlier cases that the form of remedy is irrelevant to the question of whether the common law cause of action has been displaced, the judge said.

“In sum, the Supreme Court has held that federal common law addressing domestic greenhouse gas emissions has been displaced by Congressional action,” the judge wrote. “That determination displaces federal common law public nuisance actions seeking damages, as well as those actions seeking injunctive relief.”

Judge Richard Clifton concurred. U.S. District Judge Philip M. Pro of the District of Nevada, sitting by designation, wrote separately, concurring as to the effect of the Clean Air Act and also arguing that the plaintiffs lacked standing.

Several Los Angeles attorneys were on the briefs, including Marc M. Seltzer of Susman Godfrey, LLP, for the village; Ronald L. Olson and Daniel P. Collins of Munger, Tolles & Olson LLP, for Shell; John F. Daum of  O’Melveny & Myers for ExxonMobil; Matthew Heartney of Arnold & Porter LLP for BP; William A. Norris, Rex Heinke, and Richard K. Welsh of Akin Gump Strauss Hauer & Feld LLP for The AES Corporation; and Belynda B. Reck of Hunton & Williams LLP for  DTE Energy Company.

The case is Native Village of Kivalina v. ExxonMobil Corporation, 09-17490. 


Copyright 2012, Metropolitan News Company