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On Friday, in Native Village of Kivalina v. ExxonMobil, the
9th Circuit Court of Appeals may have sounded the death
knell for public nuisance litigation concerning the impacts of
climate change, affirming dismissal of the damage claims brought by
the City of Kivalina and the Native Village of Kivalina against
major greenhouse gas emitters.
As most readers will know, last year, in American Electric Power v. Connecticut, the Supreme
Court determined that public nuisance claims for injunctive relief
have been displaced by the comprehensive federal regulatory scheme
embodied in the Clean Air Act. Plaintiffs hoped against hope
that claims for damages would fare better, since the CAA does not
address such damage claims.
In a crisp and concise opinion, the 9th Circuit
quickly dashed those hopes. In short, the Court concluded that
the type of relief sought by the plaintiffs was irrelevant to the
underlying question concerning whether the federal statutory regime
occupied the field. Referring to AEP, the Court said simply that
"the Supreme Court has instructed that the type of remedy
asserted is not relevant to the applicability of the doctrine of
displacement." The question is whether the
"cause of
action" has been displaced. If so,
any and all remedies will be displaced. As the opinion
states:
"Judicial power can afford no remedy unless a right that is
subject to that power is present. If a federal common law cause of
action has been extinguished by Congressional displacement, it
would be incongruous to allow it to be revived in another form.
* * *
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."
Seems pretty conclusive to me. I think that these cases are
done. I don't see the Supreme Court concluding that
it's got to hear this case as well.
Of course, that doesn't mean that such citizen suits are
completely over and done with. There are some creative lawyers
working on the plaintiffs' side of these cases. I cannot
wait to see what they come up with next.
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