May 23, 2013

Cert denied in Native Village of Kivalina

By Damien M. Schiff Senior Attorney

On Monday, the Supreme Court denied Kivalina’s cert petition.  Recall that this was a global warming nuisance tort action, brought by an Alaskan town against several large energy companes.  The town argued that, under federal common law, the companies had caused or contributed to the public nuisance of global warming, which would harm the Town by leading to its destruction (through sea level rise, intensified storms, etc.).  In American Electric Power Co. v. Connecticut, the Supreme Court ruled that the Clean Air Act displaces any otherwise existing federal common law nuisance tort governing global warming.  Kivalina argued, however, that AEP was distinguishable because it only concerned claims for injunctive relief, rather than damages claims like Kivalina’s.  And, Kivalina argued that a recent Supreme Court Clean Water Act  decision, which preserved a federal common law admiralty damages claim, supported its view.  The Ninth Circuit wasn’t convinced, and the Supremes weren’t interested.  For what it’s worth, I do believe that Kivalina properly identified a tension in the Court’s case law, but I suspect that the Court would prefer to resolve that tension with a case that doesn’t deal with global warming.

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