The City and Village of Kivalina, population about 400, sits on
the tip of a six-mile barrier reef on the northwest coast of
Alaska. The residents depend on the sea ice that forms along the
coast to shield them from violent storms. Sea ice has consistently
declined in recent years – it is thinner, smaller, forms
later, and breaks up earlier.
As a result, Kivalina has been battered by the elements and the
very land it sits on is disappearing. The survival of the City is
threatened by erosion from wave action and sea storms. The village
must likely be relocated at a cost of between $95 and $400 million,
money they do not have.
As we described in our article for The Lawyers
Weekly, Kivalina brought a lawsuit against 24 oil, energy and
utility companies alleging these large greenhouse gas (GHG)
emitters were responsible for global warming and the resulting
reductions in sea ice. They brought their claim in federal
nuisance, arguing that the GHG emissions of carbon dioxide and
other greenhouse gases, by contributing to global warming,
constitute a substantial and unreasonable interference with public
rights, including the rights to use and enjoy public and private
property in Kivalina.
In 2009, Judge Saundra Armstrong dismissed the lawsuit, holding
that whether greenhouse gas emissions cause a public nuisance is a
"political question" reserved for Congress and the
president. She also held that Kivalina lacked standing because it
could not prove that the 24 defendants were solely responsible for
the harm to their island.
In sum, the Supreme Court has held
that federal common law addressing domestic greenhouse gas
emissions has been displaced by Congressional action. That
determination displaces federal common law public nuisance actions
seeking damages, as well as those actions seeking injunctive
relief. The civil conspiracy claim falls with the substantive
claim. Therefore, we affirm the judgment of the district court. We
need not, and do not, reach any other issue urged by the
Our conclusion obviously does not
aid Kivalina, which itself is being displaced by the rising sea.
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.
In his concurring opinion, Judge Phillip Pro addressed the
question of standing. The American test for standing requires that
"a plaintiff must show (1) injury in fact; (2) causation; and
(3) likelihood that the injury will be redressed by a favorable
decision. He concluded, as did Judge Armstrong:
Kivalina has not met the burden of
alleging facts showing Kivalina plausibly can trace their injuries
to Appellees. By 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 whose emissions mix
quickly, stay in the atmosphere for centuries, and, as a result,
are undifferentiated in the global atmosphere. Further,
Kivalina's allegations of their injury and traceability to
Appellees' activities is not bounded in time. Kivalina does not
identify when their injury occurred nor tie it to Appellees'
activities within this vast time frame. Kivalina nevertheless seeks
to hold these particular Appellees, out of all the greenhouse gas
emitters who ever have emitted greenhouse gases over hundreds of
years, liable for their injuries.
It is one thing to hold that a State
has standing to pursue a statutory procedural right granted to it
by Congress in the CAA to challenge the EPA's failure to
regulate greenhouse gas emissions which incrementally may
contribute to future global warming. See Massachusetts,
549 U.S. at 516-20. It is quite another 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.
Thus, the City and Village of Kivalina cannot obtain climate
justice, or compensation, through the courts, because the courts
defer to the government and the legislature, who are choosing not
to protect them.
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