September 26, 2012

More analysis on Kivalina

By Damien M. Schiff Senior Attorney

Last week, the Ninth Circuit Court of Appeals affirmed the dismissal of the Native Village of Kivalina’s tort damages claim against a large collection of the country’s major energy producers.  (PLF submitted an amicus brief in support of the defendants).  Kivalina had argued that the defendants’ greenhouse gas emissions had contributed to global warming, which threatens the destruction of the Alaskan village (increased temperatures decrease protective ice, increasing the likelihood that a storm can wipe out the town).  The Ninth Circuit ruled, however, that the Clean Air Act displaces Kivalina’s federal common law nuisance claim, and therefore affirmed the trial court’s dismissal.

Followers of these global warming tort cases may be somewhat surprised that Kivalina had any case at all, in light of the Supreme Court’s decision a few years ago in American Electric Power Co. v. Connecticut.  There, several states and other entities had brought federal common law nuisance claims against some of the same energy producer defendants involved in Kivalina.  The plaintiffs sought an injunction imposing a cap-and-reduce regime.  But the Supreme Court held that the Clean Air Act displaced the plaintiffs’ nuisance claims.

In light of AEP, how could Kivalina have a claim?  Well, Kivalina argued that AEP concerned injunctive relief only, not damages, and that a displacement analysis must proceed on a per-remedy basis.  In other words, simply because Congress intended to displace federal common law public nuisance claims based on global warming that seek injunctive relief, does not mean that Congress also wanted to displace claims for damages for the same emissions.  Kivalina also argued that the emissions at issue occured before EPA decided to regulate greenhouse gases under the Clean Air Act, and that displacing Kivalina’s claim now would be impermissibly retroactive.

Clever arguments, but ultimately not convincing.  The Ninth Circuit reasoned that displacement focuses on the cause of action, not remedy, and that remedy only follows upon a cause of action.  Thus, if the Clean Air Act displaces federal common law public nuisance causes of action for greenhouse gas emissions, it does so as much for those cases seeking damages as for those seeking an injunction.  The court’s rejection of Kivalina’s timing/retroactivity arguments is, however, a little less convincing.  The court relied on the separation of powers, noting that displacement concerns relationships between the judiciary and the legislature, not the executive; hence, it doesn’t matter that the emissions here occurred before the executive branch (EPA) began to regulate greenhouse gases under the Clean Air Act.  As for retroactivity, the court’s reasoning is a little opaque but appears to be that all federal common law causes of action have a built-in proviso that they should cease to exist once Congress legislates.

District Judge Pro, sitting by designation, concurred.  He added to the majority’s displacement discussion by noting that AEPand its displacement antecedents seem to be in some tension with Exxon Shipping Co. v. Baker, a 2008 Supreme Court decision holding that the Clean Water Act did not displace a negligence cause of action for under federal maritime law.  Judge Pro astutely observed that Exxon‘s holding is hard to reconcile with other Supreme Court decisions holding that the Clean Water Act displaces otherwise applicable federal common law on public nuisances.  Nevertheless, he found AEP in point and dispositive.  He also would have held that Kivalina lacked standing to pursue its claim, concluding that Kivalina could not trace its injuries to the greenhouse gas emissions of any (or all) of the defendants.  In this point, Judge Pro’s reasoning is consistent with PLF’s amicus brief.

Does this decision spell the end for Kivalina?  Not necessarily.  Both the majority and Judge Pro note that Kivalina is free to pursue any state law nuisance claim.  Should it do so, Kivalina could avoid the displacement and probably the standing objections, although it would have to confront the argument that the Clean Air Act not only displaces federal common law, it also preempts otherwise applicable state law.

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