March 28, 2013

Cert sought in global warming nuisance case

By Damien M. Schiff Senior Attorney

In Native Village of Kivalina v. ExxonMobil Corp., the Ninth Circuit held that the Clean Air Act displaces any otherwise existing federal law of public nuisance.  (PLF filed an amicus brief supporting the energy companies).  Consequently, the court’s ruling eliminates the Village’s tort lawsuit, which sought damages from the defendants—a collection of private energy producers—on the theory that the defendants’ greenhouse gas emissions contribute to the public nuisance of global warming.  That’s a nuisance for Village, a coastal Alaskan town, because rising sea levels coupled with global-warming-intensified storms threaten the Village’s existence.

The Village has now sought cert from the United State Supreme Court.  It argues that there is a conflict in Supreme Court case law on determining whether a federal statute displaces federal common law.  In American Electric Power Co. v. Connecticut, the Supreme Court held that the Clean Air Act displaced Connecticut’s global warming public nuisance claim for injunctive relief.  But in Exxon Shipping Co. v. Baker, the high court held that the Clean Water Act does not displace a federal common law tort action for damages (which is analogous to the Village’s damages claim against the energy producers).  The Village argues that there is no meaningful basis to distinguish the Clean Air Act from the Clean Water Act, such that AEP and Baker cannot be reconciled.  (That is a concern that one of the Ninth Circuit panelists noted.)

I suspect that this case has a decent chance of being reviewed, but perhaps not for the reasons that the Village wants.  Rather, I believe that this case may provide the Supreme Court an opportunity to narrow Massachusetts v. EPA to hold that that case’s somewhat loose exposition of the doctrine of standing is limited to the “special solicitude” owing to sovereign entities suing in federal court, and does not extend to non-sovereign entities like the Village.

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