In Native Village of Kivalina v. ExxonMobil Corp., No. 09-17490 (9th Cir. Sep. 21, 2012), a panel of the Ninth Circuit unanimously affirmed the dismissal of an action brought by plaintiffs who sought $400 million in damages to relocate their village from land they claim to be eroding due to the effects of global climate change.

The “governing bodies” of an Alaska Native village brought suit in the United States District Court for the Northern District of California against select oil, coal, and utility companies, asserting a theory of federal common law nuisance. The plaintiffs claimed that defendants’ historic emissions of significant quantities of greenhouse gases--in combination with others’ emissions of an unspecified period of time--contributed to climate change that resulted in the melting of Arctic Sea ice that had protected their village from winds and storm surge. Without the protection of the sea ice, the land on which their village sat was eroding, allegedly necessitating relocation of the community at the defendants’ expense.

The district court granted the defendants’ motions to dismiss on two independent grounds. First, the court held that the plaintiffs’ claim raised non-justiciable political questions. In particular, to resolve the plaintiffs’ claim, the court would have to determine what constitutes a reasonable level of greenhouse gas emissions by any particular entity and who should bear the costs of climate change, which are matters of policy that are the province of the political branches of government. Second, the court held that the plaintiffs lacked Article III standing to pursue their claim against the defendants. The plaintiffs could not demonstrate that their claimed injury was “fairly traceable” to the emissions of the defendants as opposed to historic emissions and other conduct of parties not before the court.

The Ninth Circuit affirmed the judgment of the district court, but on alternative grounds. Relying on the Supreme Court’s recent ruling in American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011) (“AEP”), the court held that the plaintiffs’ claim of climate change-related nuisance--assuming its viability under the federal common law--had been displaced by the Clean Air Act. The Ninth Circuit applied the AEP Court’s determination that when a federal statute “speak[s] directly to [the] question at issue,” federal common law does not provide a remedy, and relied on AEP’s ultimate conclusion that the Clean Air Act has displaced any federal common law nuisance claim for climate change related injury.

The significance of the Ninth Circuit’s opinion does not lie in the court’s acknowledgement that AEP “determined that Congress has directly addressed the issue of domestic greenhouse gas emissions from stationary sources and has therefore displaced federal common law.” Rather, it is the Ninth Circuit’s extension of AEP’s displacement analysis to the specific posture of Kivalina that is significant. The Court in AEP held that the Clean Air Act displaced any federal common law claim for abatement of greenhouse gas emissions from stationary sources. The AEP Court was not called upon to decide whether the Clean Air Act displaced a federal common law claim (involving essentially the same conduct by many of the same actors) for money damages; the remedy sought by the Kivalina plaintiffs.

The majority found the answer to that question in other Supreme Court precedent. Relying on Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), and Middlesex County Sewerage Authority v. National Sea Clammers Ass’n., 453 U.S. 1 (1981), the Ninth Circuit concluded “that the type of remedy asserted is not relevant to the applicability of the doctrine of displacement.” Thus, the Kivalina court concluded that when Congress enacts legislation sufficiently comprehensive to displace a federal common law right of action, the legislation necessarily displaces all remedies that might flow from that federal common law claim. Accordingly, the Ninth Circuit recognized that the AEP Court’s displacement analysis--even though in the context of an action for injunctive relief--effectively adjudicated the Kivalina plaintiffs’ claim for money damages.

The Ninth Circuit’s holding leaves open the possibility that plaintiffs may pursue a remedy for alleged climate change-related injury under state nuisance law. Indeed, a concurring opinion in Kivalina, issued by District Judge Philip Pro sitting by designation (who noted also that he would have affirmed the judgment of the district court on grounds that the plaintiffs’ lacked Article III standing to sue), raised this point: “Once federal common law is displaced, state nuisance law becomes an available option to the extent it is not preempted by federal law.”

Although resort to state nuisance law may be a possibility, it presents its own series of complications. Preemption is but one area of concern. In the case of nuisance premised on emissions emanating from locations all over the world dating back decades or centuries, courts undoubtedly would struggle to identify which state’s or states’ law would apply (and whether it should apply current nuisance law or the law as it existed at the time of emission). Conflicts in the nuisance law of the various states, along with different rules by state concerning allocation of fault by the jury, would present additional roadblocks.

In addition, state nuisance laws typically impose other legal elements that would be difficult, if not impossible, for the climate change plaintiff to satisfy; for example, requirements that the dispute be among neighboring or adjoining landowners. Quite simply, the Ninth Circuit’s holding in Kivalina takes the air out of the sails of climate change-related nuisance litigation by foreclosing a plaintiff’s lawyer’s use of the often-undefined (or under-defined) “federal common law” to create a cause of action where none previously existed.