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September 25, 2012
Imperiled village fails in nuisance suit

Attorneys for a small native Alaskan village failed to persuade a U.S. appeals court that over 20 major oil, energy, and utilities companies had violated the public rights of the residents by emitting greenhouse gases (GHGs) that has caused climate change and dangerous erosion of the village’s coastline.  According to the 9th Circuit U.S. Court of Appeals, the assertion of a common law right against public nuisance made by the village could not be upheld because the matter is covered by the Clean Air Act. 
Protective ice
The village of Kivalina sits at the tip of a 6-mile barrier reef on the northwest coast of Alaska, approximately 70 miles north of the Arctic Circle.  Kivalina is a self-governing, federally recognized tribe of Imupiat Native Alaskans who comprise 97 percent of the village’s 400 residents.  Kivalina’s survivability may not be possible because the sea ice that forms on the coastline in the fall and protects the village from coastal storms has been forming later and attaching later in the year, broken up earlier than expected, and been thinner and less extensive.  As a result, Kivalina has been heavily impacted by storm waves and surges that are destroying the land where it sits.
Common law rights
It its suit, Kivalina claims that the named energy producers are substantial contributors to global warming and are therefore responsible for its injuries.  Specifically, village attorneys stated that GHG emissions caused by the energy companies constitute a substantial and unreasonable interference with public rights, including the rights to use and enjoy public and private property in Kivalina.  The complaint also charged the energy producers 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. 
A U.S. district court ruled in favor of the defendants.  According to the district court, there was insufficient guidance on the principles or standards that should be employed to resolve the claims by Kivalina.  The court also determined that resolution of Kivalina’s nuisance claim would require determining what would have been an acceptable limit on the level of GHGs emissions gases emitted by the energy producers and who should bear the cost of global warming.  Both of these issues, the court concluded, were matters more appropriately left for determination by the executive or legislative branch.
Supreme Court precedent
The 9th Circuit’s rejection of the common law claim against the energy companies is based on the concept that federal common law develops when the courts must consider federal questions that are not answered by statute.  The 9th Circuit further noted that it did not need to engage in a complex analysis of the village’s claim because the U.S. Supreme Court has already determined, in American Electric Power Co., Inc. v. Connecticut, that Congress has directly addressed the issue of domestic GHG emissions from stationary sources. 
“That determination displaces federal common law public nuisance actions seeking damages, as well as those actions seeking injunctive relief,” states the 9th Circuit.  “The civil conspiracy claim falls with the substantive claim.”
The 9th Circuit recognized that its opinion does not aid Kivalina.  But 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, concludes the 9th Circuit.
Read the 9th Circuit’s opinion in Kivalina v. ExxonMobil Corp., et al..

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