The plaintiffs in the climate change liability suit, Native Village of Kivalina v. ExxonMobil, won’t go quietly. Last Thursday, Plaintiffs filed with the Ninth Circuit Court of Appeals a petition for rehearing en banc (Petition attached), seeking to reverse the appellate panel’s decision (“Panel Decision”) that the doctrine of displacement barred the plaintiffs’ claims for nuisance damages under federal common law. In their petition the plaintiffs focus on the panel's conclusion, based on Connecticut v. American Electric Power, that the Clean Air Act displaced all federal common law claims relating to greenhouse gas emissions, regardless of the remedy sought. But they also weakly address the concurrence's separate reasoning finding that the plaintiffs did not have standing, and the district court's original conclusion that the political question doctrine bars the claim.
For those unfamiliar with the Kivalina case, it is one of the triumvirate of cases (with Connecticut v. American Electric Power and Comer v. Murphy Oil USA) that are shaping the climate change liability legal landscape. The plaintiffs in Kivalina assert that the defendants (electric utilities, oil companies and a coal company) are responsible for the emission of greenhouse gases that have caused the late freezing and early melting of arctic sea ice, which in turn permits arctic storms to erode the plaintiffs’ village that now lacks the sea ice’s protection. The plaintiffs seek damages in the hundreds of millions of dollars. The case was filed in the Northern District of California in 2007 and was dismissed in 2009; the dismissal was affirmed two weeks ago.
And for those unfamiliar with en banc substance and procedure in the Ninth Circuit, it is unique. Notwithstanding its name, an en banc hearing in the Ninth Circuit is not heard by the full court. Instead, if 15 jurists (out of 29) vote to hear the case, ten judges are selected by lot to join the Chief Judge for the hearing. See Fed. R. App. P. 35; Gen. Orders 9th Cir. §§ 5.1 et seq.). If one does the math, it becomes apparent that even if a majority of the court concludes a case should come out a certain way, if six judges of an opposite mind are on the en banc panel, the law in the Ninth Circuit can vary from what the majority of the Ninth Circuit thinks the law should be.
We now turn to the plaintiffs’ arguments:
Plaintiffs succinctly summarized their motion:
"This case squarely presents the issue of whether a statute [e.g., the Clean Air Act] that displaces a federal common law cause of action for injunctive relief also displaces a federal common law damages action. Exxon Shipping [v. Baker, 554 U.S. 471 (2008)] answers this question in the negative and directly conflicts with the panel decision." Petition at 6.
The majority and the concurrence had ruled that, notwithstanding Exxon Shipping, Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1 (1981), provided that the remedy sought had no bearing on whether a claim was displaced. To quote: “where a federal common law nuisance claim for injunctive relief is displaced, a federal common law nuisance claim for damages claim likewise is displaced.” Panel Decision at 11663 (citing Middlesex County). Judge Pro noted in his concurrence a tension between Exxon Shipping and Middlesex County . He wrote that Exxon Shipping suggests “severing rights and remedies is appropriate as between damages and injunctive relief in some circumstances.” Panel Decision at 11665. Plaintiffs contend that here are the right circumstances: "in Exxon Shipping, the Supreme Court unambiguously held that a federal common law damages claim is not displaced by the Clean Water Act (“CWA”) – a federal environmental statute that, like the CAA, provides only injunctive relief and civil penalties – even though the CWA does displace a federal common law claim for injunctive relief." Petition at 1.
Their reasoning basically is that injunctive relief seeks the same result as a regulatory regime, and is therefore displaced. “[T]he common thread running throughout the displacement cases is that the federal common law cannot create a parallel track with a regulatory regime established by Congress. Thus, in AEP the displacement holding, …, was expressly limited to injunctive relief claims seeking abatement of the nuisance. ‘We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.’ Petition at 13 (citing AEP, 131 S. Ct. at 2537). A claim for damages, on the other hand according to plaintiffs, has nothing to do with enforcement of standards. “Kivalina does not seek to set emissions caps. It seeks damages.” Id. at 13. Judge Pro would disagree: “By supplying a federal remedy Congress chose not to provide, this Court would not be “filling a gap,” it would be “providing a different regulatory scheme” than the one chosen by Congress. Panel Decision at 11671 (citation omitted).
Plaintiffs wrote: “Judge Pro would have affirmed the dismissal for lack of standing.” Petition at 17. That is true, but he said it a little more forcefully: ““[i]t is quite another [thing] to hold that a private party has standing to pick and choose amongst all the greenhouse gas emitters throughout history to hold liable for millions of dollars in damages.” Panel Decision at 11676. Plaintiffs hardly address this point: “Kivalina seeks damages, so redressability is easily satisfied.” Id. at 18. Don’t look for more analysis; there isn’t any. Instead, there is a little sleight-of-hand. Standing was granted to the plaintiffs in Massachusetts v. EPA to sue the federal government to enforce the Clean Air Act concerning carbon dioxide emissions. Such standing is more difficult to achieve than standing in a simple suit for damages. Hence, plaintiffs’ argument goes, if the plaintiffs had standing in Massachusetts, then it must be the case that plaintiffs in Kivalina have standing too. Further, the “special assistance” provided by being a sovereign (as the Commonwealth of Massachusetts and other plaintiffs were) is not needed. Plaintiffs are comparing apples and oranges. A sovereign may have standing to sue another sovereign to enforce a law. That simply has nothing to do with standing by a private party to sue another private party for damages.
The trial court dismissed the Kivalina case on standing and also as a political question. Plaintiffs contend that the “Supreme Court rejected the political question argument in AEP.” We suppose that is technically correct. A divided court affirmed 4-4 the Second Circuit’s decision rejecting application of the political question doctrine. See AEP, 131 S. Ct. at 2535 & n.6. But that hardly seems sufficient to convince the en banc court to permit rehearing. Likewise plaintiffs’ second argument, that a claim for damages lowers the bar for application of the political question doctrine, is barely made (five lines).
Plaintiffs must be hoping that the en banc court will take up the Exxon Shipping – Middlesex County tension. Their other arguments are insubstantial. Regardless, it seems plain that the case is headed to a petition for certiorari to the Supreme Court. Plaintiffs have identified a potential conflict in Supreme Court precedent. If they lose, either because rehearing is not granted, or because rehearing is granted and the panel’s decision upheld, they have come too far to let the case go. And if they win, defendants undoubtedly will seek a reversal by the Supreme Court, content ultimately to take their chances in state court, as we have previously suggested.