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Another Hurdle for GHG Suits as Ninth Circuit Affirms District Court Ruling in Kivalina v. ExxonMobil

In a unanimous decision last week, the Ninth Circuit Court of Appeals ruled that federal common law public nuisance claims regarding domestic greenhouse gas emissions have been displaced by the Clean Air Act ("CAA") and the United States Environmental Protection Agency ("USEPA") action the CAA authorizes. Native Vill. of Kivalina v. ExxonMobil Corp., 09-17490, 2012 WL 4215921 (9th Cir. Sept. 21, 2012).

On February 28, 2008, the Village sued ExxonMobil Corporation in federal court along with eight other oil companies, fourteen power companies, and one coal company. The suit was based on, among other things, the federal common law theory of public nuisance. The Village alleged that the companies named in the suit are substantial contributors to global warming because of their high volume of greenhouse gas emissions, and that the Village was directly harmed by global warming because the melting of sea ice exposed the Village to erosive coastal storms. The Village sought monetary damages for the defendants' contributions to global warming. The district court dismissed the case, holding that (1) the political question doctrine precluded judicial consideration of the Village's federal public nuisance claims and (2) the Village lacked standing under Article III. Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 868 (N.D. Cal. 2009).

The Ninth Circuit affirmed the dismissal on the grounds that the Village had failed to satisfy the threshold question of whether or not legislative action has displaced the theory of public nuisance under federal common law. The court stated that "[i]f Congress has addressed a federal issue by statute, then there is no gap for federal common law to fill." Relying heavily on the recent Supreme Court ruling in American Electric Power Co., Inc. v. Connecticut, 131 S. Ct. 2527 (2011), the court held that, because the CAA already "provides a means to seek limits on emissions of carbon dioxide from domestic power plants . . . [the CAA and] the EPA actions it authorizes displace any federal common law right" the Village might have to seek damages based on federal common law nuisance. The Ninth Circuit also refused to allow the absence of a damages remedy under the CAA in this case to revive the federal common law damages action. In its decision, the appeals court declined to discuss the issues of political question or standing. The ruling poses another hurdle for greenhouse gas suits based on the theory of public nuisance. At least in the Ninth Circuit, federal common law suits based on transboundary pollution claims against greenhouse gas emitters are now foreclosed. Further, the decision provides additional backing to USEPA to implement the suite of rules regulating GHG emissions pursuant to the CAA.

While the Ninth Circuit backed USEPA's authority to address global warming through the CAA, the Republican-controlled House passed a deregulatory bill on the same day titled "Stop the War on Coal Act of 2012" (H.R. 3409). The proposed bill would prevent USEPA from enforcing its recent GHG regulations and require the agency to consider the costs and economic impacts of certain regulations. However, the future of the bill is uncertain because the Obama administration has issued a veto threat (182 DEN A-11, 9/20/12), and it is unlikely to move through the Democratic-controlled Senate. Future actions to address these issues are unlikely until after the November elections. Text of the Stop the War on Coal Act of 2012 (H.R. 3409) is available here

Details on each of the amendments to the bill are available here and by clicking on "Amendments" tab.

© 2021 Schiff Hardin LLPNational Law Review, Volume II, Number 271
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About this Author

Jane E Montgomery, Schiff Hardin Law firm
Partner

Jane E. Montgomery concentrates her practice in a variety of matters at the local, state and federal levels. Ms. Montgomery regularly: Counsels many companies with day-to-day compliance issues, including air permitting, NSPS, MACT, and solid and hazardous waste issues. In her work, she often encounters difficult elemental mercury, manufactured gas plant, and PCB issues, and she recently has focused on Reform New Source Review (NSR) compliance for utilities. Counsels clients with respect to climate change issues. Such work has included work on carbon sequestration issues, greenhouse gas...

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