On September 21, 2012, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld a decision of the U.S. District Court for the Northern District of California dismissing the federal common law nuisance and civil conspiracy damage claims of the Native Village of Kivalina and the City of Kivalina against a group of U.S. oil, energy, and utility companies ("Energy Producers"). The plaintiffs, located on a coastal Alaskan island, alleged that the greenhouse gas emissions of the Energy Producers have contributed to climate change, which in turn severely eroded the land where Kivalina sits and threatens it with imminent destruction and other global warming-related impacts.

The court found that since the Clean Air Act provides for the regulation of greenhouse gas emissions, the federal common law doctrines have been displaced and the claims failed. Kivalina v. Exxon Mobil Corp., ___ F.3d___, 2012 WL 4215921 (9th Cir. Sept. 21, 2012).

Kivalina is a remote village that is home to approximately 400 residents and sits on a six-mile barrier reef on the northwest coast of Alaska, which has been a home to the Inupiat Native Alaskans for hundreds of years. As alleged by Kivalina, arctic sea ice long served as a barrier against waves and protected the village from erosion. However, Kivalina alleged that because sea ice levels have decreased significantly in recent years as a result of climate change, the village has become at risk to storms and flooding.

Kivalina brought suit against the Energy Producers alleging that the Energy Producers' substantial contribution to global warming, in the form of greenhouse gas emissions, represented a public nuisance under the federal common law. Kivalina also claimed that certain of the Energy Producers were also guilty of a civil conspiracy to conceal the harmful effects of global warming.

The Court of Appeals upheld dismissal of both claims, holding that a federal common law claim does not lie when the question is controlled by federal legislation that displaces otherwise applicable federal common law. The court held that Kivalina's claim was displaced by the Clean Air Act, in light of the U.S. Supreme Court's earlier holding in Massachusetts v. EPA, 549 U.S. 497 (2007), that the Act empowered the U.S. Environmental Protection Agency to regulate greenhouse gas emissions. In essence, the Court of Appeals found that Congress already had "spoken directly" to the issue of regulating greenhouse gas emissions.

Specifically, the Court of Appeals stated that the U.S. Supreme Court's decision in American Electric Power Co., Inc. v. Connecticut, 131 S. Ct. 2527 (2011), required that Kivalina's common law action against the Energy Producers be dismissed. In American Electric Power, the Supreme Court ruled the Clean Air Act, and the regulation of greenhouse gases the Act authorized, displaced a federal common law nuisance action for injunctive relief that was filed against the five largest emitters of carbon dioxide in the United States.

Although the plaintiffs in American Electric Power had sought injunctive relief through court-ordered emissions caps, and the Kivalina plaintiffs sought damages for alleged harm already caused, the Court of Appeals stated that if a cause of action is displaced by federal legislation, the displacement extends to all remedies. The plaintiffs' civil conspiracy claim against the Energy Producers also failed since it was based upon the substantive public nuisance claim and could not stand on its own once the nuisance claim was dismissed.

Seeking to take advantage of a concurring opinion by District Judge Pro (sitting by designation), on October 4, 2012, the Kivalina plaintiffs filed a petition for rehearing en banc. In his concurrence, Judge Pro had asserted that there is some tension between the U.S. Supreme Court's rulings in Middlesex County Sewerage Authority v. National Sea Clammers Ass'n., 453 U.S. 1, 4 (1981), and Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), as to whether, when a common law nuisance claim for injunctive relief is displaced, a common law nuisance claim for damages claim likewise is displaced. Judge Pro had nonetheless agreed that the doctrine of displacement foreclosed the federal common law claims in Kivalina.

It remains to be seen what the full Ninth Circuit will do. Under Rule 35(e) of the Federal Rules of Appellate Procedure, the Energy Producers are precluded from filing a response to the petition unless and until ordered by the Court of Appeals