Beveridge & Diamond

Ninth Circuit Further Limits Climate-Nuisance Suits

Daniel M. Krainin and Daniel P. Berner
Beveridge & DIamond, P.C., September 28, 2012

Further limiting available grounds for plaintiffs to seek redress for injuries allegedly due to climate change, on September 21st, the Ninth Circuit Court of Appeals upheld the dismissal of an action brought by the Native Village of Kivalina and the City of Kivalina (collectively “Kivalina”) against multiple oil, energy and utility companies (the “Energy Companies”).  Native Vill. of Kivalina v. ExxonMobil Corp. (Kivalina II), No. 09-17490 (9th Cir. Sept. 21, 2012).  Consistent with the Supreme Court’s decision in American Electric Power Co., Inc. v. Connecticut (“AEP”), 131 S.Ct. 2527 (2011), the panel found that the plaintiffs’ federal common law nuisance claims were displaced by the Clean Air Act.  Id. at 13-16.  The decision was perhaps most notable for concluding that federal common law claims seeking damages for alleged climate-related injuries – in addition to claims seeking injunctive relief, as the Supreme Court held in AEP – are displaced by federal statutory law.

Kivalina based its public nuisance claim on allegations that the Energy Companies’ “emissions of carbon dioxide and other greenhouse gases, by contributing to global warming, constitute a substantial and unreasonable interference with public rights, including the right to use and enjoy public and private property in Kivalina.”  Id. at 9.  Specifically, Kivalina alleged that it faced destruction because of a global warming-induced reduction in the protective sea ice formed on the city’s coastline and the resulting erosion from wave action and sea storms. Id. at 7-8.  Kivalina also alleged that the Energy Companies acted in concert to create, contribute to and maintain global warming and conspired “to mislead the public about the science of global warming.”  Id. at 9. 

The district court had dismissed Kivalina’s claims on political question grounds, finding that the regulation of acceptable greenhouse gas emission levels and the allocation of global warming costs were matters “more appropriately left for determination by the executive or legislative branch in the first instance.” Native Vill. of Kivalina v. ExxonMobil Corp. (Kivalina I), 663 F. Supp. 2d 863, 877 (N.D. Cal. 2009).  The lower court had also found that Kivalina lacked standing to bring a public nuisance suit, as it “could not demonstrate either a substantial likelihood that defendants’ conduct caused plaintiff’s injury nor that the seed of its injury could be traced to any of the Energy [Companies].” Kivalina II, slip op. at 9-10 (citing Kivalina I, 663 F.Supp.2d  at 878-81). 

In affirming the district court’s dismissal of Kivalina’s claims, the majority opinion followed the AEP decision, finding that “[t]he Supreme Court has already determined that Congress,” through the Clean Air Act, “has directly addressed the issue of domestic greenhouse gas emissions from stationary sources and has therefore displaced federal common law.” Kivalina II, slip op. at 13 (citing AEP, 131 S.Ct. at 2530, 2537).     

Unlike Kivalina, the plaintiffs in AEP sought injunctive relief against carbon dioxide emitters in the form of carbon dioxide emission caps.  Id. at 2534.  The Ninth Circuit majority opinion recognized the distinction between the injunctive remedy sought by plaintiffs in AEP and the monetary damages sought by Kivalina but found it to be immaterial to the displacement analysis because, “under current Supreme Court jurisprudence, if a cause of action is displaced [then] displacement is extended to all remedies.”  Kivalina II, slip op. at 14.  The court held that Kivalina’s civil conspiracy claim fell on these same grounds.   Id

In a lengthy concurrence, Judge Philip Po agreed with the court’s ultimate decision but found that the relevant Supreme Court jurisprudence is less clear than the majority believed it to be regarding “whether displacement  of a claim for injunctive relief necessarily calls for displacement of a damages claim.” Id. at  17.  Judge Po also noted that the displacement of federal common law “does not leave those injured by air pollution without a remedy,” as state nuisance law remains open as an avenue for relief to the extent it is not preempted by federal law.  Id. at 30.  Finally, Judge Po addressed the standing issue (not addressed by the majority opinion) and found that the plaintiffs had “not met the burden of alleging facts showing Kivalina plausibly can trace their injuries to Appellees.”  Id. at 34.