Monday, September 24, 2012

Native Village Of Kivalina v. ExxonMobil Corp.

Sep 21: In the U.S. Court of Appeals, Ninth Circuit, Case No. 09-17490. Appealed from the United States District Court for the Northern District of California. In this high profile case dealing with climate change, the Native Village of Kivalina and the City of Kivalina (collectively Kivalina) appeal the district court's dismissal of their action for damages against multiple oil, energy, and utility companies (collectively Energy Producers).
    The 22 Energy Producers include: (1) ExxonMobil Corporation; (2) BP P.L.C.; (3) BP America, Inc.; (4) BP Products North America, Inc.; (5) Chevron Corporation; (6) Chevron U.S.A., Inc.; (7) Conocophillips Company; (8) Royal Dutch Shell PLC; (9) Shell Oil Company; (10) Peabody Energy Corporation; (11) The AES Corporation; (12) American Electric Power Company, Inc.; (13) American Electric Power Services Corporation; (14) Duke Energy Corporation; (15) DTE Energy Company; (16) Edison International; (17) Midamerican Energy Holdings Company; (18) Pinnacle West Capital Corporation; (19) The Southern Company; (20) Dynegy Holdings, Inc.; (21) Xcel Energy, Inc.; (22) Genon Energy, Inc.

    Kivalina alleges that massive greenhouse gas emissions emitted by the Energy Producers have resulted in global warming, which, in turn, has severely eroded the land where the City of Kivalina sits and threatens it with imminent destruction. Kivalina seeks damages under a Federal common law claim of public nuisance. The Appeals Court summarizes its position saying, "The question before us is whether the Clean Air Act, and the Environmental Protection Agency (EPA) action that the Act authorizes, displaces Kivalina's claims. We hold that it does."

    The City of Kivalina sits on the tip of a six-mile barrier reef on the northwest coast of Alaska, approximately seventy miles north of the Arctic Circle. The city, which was incorporated as a unified municipality under Alaska state law in 1969, has long been home to members of the Village of Kivalina, a self-governing, federally recognized tribe of Inupiat Native Alaskans. The City of Kivalina has a population of approximately four hundred residents, ninety-seven percent of whom are Alaska Natives. Kivalina's survival has been threatened by erosion resulting from wave action and sea storms for several decades.
    Kivalina filed this action against the Energy Producers, both individually and collectively, in District Court for the Northern District of California, alleging that the Energy Producers, as substantial contributors to global warming, are responsible for its injuries. Kivalina argued that the Energy Producers' emissions of carbon dioxide and other greenhouse gases, by contributing to global warming, constitute a substantial and unreasonable interference with public rights, including the rights to use and enjoy public and private property in Kivalina. Kivalina's complaint also charged the Energy Producers with acting in concert to create, contribute to, and maintain global warming and with conspiring to mislead the public about the science of global warming.
    The Energy Producers argued that Kivalina's allegations raise inherently nonjusticiable political questions because to adjudicate
its claims, the court would have to determine the point at which greenhouse gas emissions become excessive without guidance from the political branches. They also asserted that Kivalina lacked Article III standing to raise its claims because Kivalina alleged no facts showing that its injuries are "fairly traceable" to the actions of the Energy Producers.
    The district court held that the political question doctrine precluded judicial consideration of Kivalina's federal public nuisance claim. The court found that there was insufficient guidance as to the principles or standards that should be employed to resolve the claims at issue. The court also determined that resolution of Kivalina's nuisance claim would require determining what would have been an acceptable limit on the level of greenhouse gases emitted by the Energy Producers and who should bear the cost of global warming. Both of these issues, the court concluded, were matters more appropriately left for determination by the executive or legislative branch in the first instance.
    The district court also held that Kivalina lacked standing under Article III to bring a public nuisance suit. The court also concluded that, given the remoteness of its injury claim, Kivalina could not establish that it was within sufficient geographic proximity to the Energy Producers' alleged "excessive" discharge of greenhouse cases to infer causation. Finally, the court declined to exercise supplemental jurisdiction over the state law claims.
    The Appeals Court explains, ". . .the right to assert a federal common law public nuisance claim has limits. Claims can be brought under federal common law for public nuisance only when the courts are 'compelled to consider federal questions which cannot be answered from federal statutes alone.' [citing: City of Milwaukee v. Illinois (Milwaukee II), 451 U.S. 304, 314 (1981)] . . . If Congress has addressed a federal issue by statute, then there is no gap for federal common law to fill. . . 'The test for whether congressional legislation excludes the declaration of federal common law is simply whether the statute speak[s] directly to [the] question at issue.'  [citing: American Electric Power Co., Inc. v. Connecticut (AEP), 131 S. Ct. (2011)]." [See WIMS 6/20/11].
    The Appeals Court indicates, "We need not engage in that complex issue and fact specific analysis in this case, because we have direct Supreme Court guidance. The Supreme Court has already determined that Congress has directly addressed the issue of domestic greenhouse gas emissions from stationary sources and has therefore displaced federal common law. [again citing: AEP]
     The majority Appeals Court concludes, "In sum, the Supreme Court has held that federal common law addressing domestic greenhouse gas emissions has been displaced by Congressional action. That determination displaces federal common law public nuisance actions seeking damages, as well as those actions seeking injunctive relief. The civil conspiracy claim falls with the substantive claim. Therefore, we affirm the judgment of the district court. We need not, and do not, reach any other issue urged by the parties. Our conclusion obviously does not aid Kivalina, which itself is being displaced by the rising sea. 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."
    In a lengthy, separate concurring opinion, one justice indicates, "The majority opinion holds that the Clean Air Act (CAA) and the Environmental Protection Agency (EPA) action the Act authorizes displace Kivalina's claims. I write separately to address what I view as tension in Supreme Court authority on whether displacement of a claim for injunctive relief necessarily calls for displacement of a damages claim, and to more fully explain why I concur in the majority opinion's ultimate conclusion. I also write separately to express my view that Kivalina lacks standing."
    Access the complete opinion and separate concurring opinion (click here). [#Climate, #Air, #Energy, #CA9]
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Russell C said...

In case anybody hasn't noticed, these global warming nuisance lawsuits were very likely doomed to failure if anybody but one of the motivational elements of them under really hard scrutiny: "Global Warming Nuisance Lawsuits Are Based on a Fatal Flaw"

Anonymous said...

Under German Law Kivalina could have won the case at least partially: Exxon and the other 23 defendants cannot be held liable for the whole damage. They are liable only for theitr partial causality with respect to the damage - but this might be more than nothing. See. Zeitschrift für Umweltrecht /ZUR) 2013, 28, "Climate Liability and Causality".
Will B. Frank