In a unanimous decision on September 21, 2012, the Ninth Circuit Court of Appeals held that federal common law public nuisance claims based on domestic greenhouse gas ("GHG") emissions have been displaced by the Clean Air Act ("CAA") and the United States Environmental Protection Agency ("EPA") action that the CAA authorizes. Native Vill. of Kivalina v. ExxonMobil Corp., 09-17490, 2012 WL 4215921 (9th Cir. Sept. 21, 2012). In the long-awaited opinion, a three-judge panel held that the doctrine of federal displacement bars the Kivalina plaintiffs’ federal common law public nuisance claim for damages against multiple oil, energy, and utility companies. The Kivalina plaintiffs alleged that "massive greenhouse gas emissions" emitted by the defendant companies "resulted in global warming, which in turn, has severely eroded the land where the City of Kivalina sits and threatens it with imminent destruction." The village also charged the companies with acting in concert to create, contribute to, and maintain global warming and with conspiring to mislead the public about the science of global warming.

In reaching its decision, the Ninth Circuit relied heavily on last year’s Supreme Court opinion in AEP v. Connecticut, 131 S.Ct. 2527 (2011). AEP held that since the CAA covers GHG emissions and authorizes the federal EPA to promulgate a comprehensive and enforceable set of GHG regulations, federal common law actions seeking abatement of carbon dioxide emissions from fossil-fuel fired plants are displaced (i.e., barred). As the Ninth Circuit explained, “[i]f Congress has addressed a federal issue by statute, then there is no gap for federal common law to fill.” The plaintiffs in Kivalina tried to distinguish their case from AEP on the ground that the plaintiffs in AEP sought injunctive relief only whereas in this case, the plaintiffs were seeking actual damages. The Ninth Circuit ruled, however, that the CAA displaces both damages and injunctive relief claims under federal nuisance law. Previously, a California federal district court had dismissed the Kivalina suit on the grounds of the political question doctrine and lack of standing. Native Village of Kivalina v. Exxon Mobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009). With respect to the political question doctrine, the district court ruled that the "allocation of fault - and cost - of global warming is a matter appropriately left for determination by the executive or legislative branch in the first instance." The district court further found that the plaintiffs lacked standing in light of the tenuous casual connection that the plaintiffs alleged between the defendants' conduct and the plaintiffs' alleged injuries. The Ninth Circuit did not address the political question issue directly because it decided the case on grounds of federal displacement. However, the Ninth Circuit alluded to the political question doctrine in the concluding sentence of its opinion: “The solution to Kivalina’s dire circumstance must rest in the hands of the legislative and executive branches of our government, not the federal common law.”

Judge Pro wrote a concurring opinion which not only elaborates on the doctrine of federal displacement, but also agrees with the district court that the plaintiffs lack standing. According to Judge Pro, standing is lacking because: “Kivalina has not met the burden of alleging facts showing Kivalina plausibly can trace their injuries to Appellees.” Instead, Judge Pro notes that “[b]y Kivalina’s own factual allegations, global warming has been occurring for hundreds of years and is the result of a vast multitude of emitters worldwide.” In his concurring opinion however, Judge Pro offered the Kivalina plaintiffs the possibility of an alternative remedy when he noted that: “[o]nce federal common law is displaced, state nuisance law becomes an available option to the extent it is not preempted by federal law.” The Kivalina decision did not address the issue of preemption as set forth by Judge Pro.

The Kivalina plaintiffs now have the option of seeking a rehearing en banc, Supreme Court review, and/or file state law nuisance claims in state court. However, in light of the decision in AEP, this case seems an exceedingly unlikely one for Supreme Court review.

Potential Impact

The 9th Circuit ruling poses yet another hurdle for greenhouse gas suits based on the theory of public nuisance. For the moment, at least in the Ninth Circuit, it appears that federal common law suits based on global warming claims against greenhouse gas emitters are now foreclosed. Furthermore, the decision provides additional backing to the EPA to implement a suite of rules regulating GHG emissions pursuant to the CAA. However, neither the CAA nor the 9th Circuit decision addresses state nuisance law claims which could potentially form the basis of a new round of climate change lawsuits.