The US Supreme Court has declined to hear the 9th Circuit’s decision in Native Village of Kivalina v. Exxon Mobil Corp., 696 F.3d 849 (9th Cir. 2012). By decling to hear the case, the US Supreme Court leaves another judgment stand which holds that the Clean Air Act preempts greenhouse gas tort claims.
In Kivalina, the Alaskan Village of Kivalina brought a public nuisance suit alleging greenhouse gas emissions emitted by oil, energy, and utility companies resulted in global warming, severely eroding the land where Kivalina sits and threatening it with imminent destruction. The 9th Circuit rejected Kivalina’s allegations in September 2012, affirming the Northern District of California’s ruling that the Clean Air Act preempted Kivalina’s common law claims. In its preemption decision, the 9th Circuit relied heavily on the Supreme Court’s ruling in AEP v. Connecticut, which held that the Clean Air Act controls the issue of greenhouse gas emissions from stationary sources, thereby displacing federal common law. While the 9th Circuit acknowledged that Kivalina differed from AEP because Kivalina sought damages for past emissions rather than abatement of emissions, the panel concluded that “AEP extinguished Kivalina’s federal common law public nuisance damage action, along with the federal common law public nuisance abatement actions.” Kivalina, 696 F.3d at 857.
As discussed in a recent frESH entry, the 5th Circuit earlier this month affirmed the dismissal of a proposed class action accusing oil companies of strengthening Hurricane Katrina and causing property damage from greenhouse gas emissions. With these two important decisions determining that the Clean Air Act preempts common law claims, the pursuit of federal greenhouse gas tort claims is certainly limited, and plaintiffs may be left with only regulation and legislation to look to.