United States: The Death Of Environmental Common Law?: The Ninth Circuit's Decision In Native Village Of Kivalina v. ExxonMobil Corp.

Last Updated: October 8 2012
Article by R. Trent Taylor

On Sept. 21, 2012, a three-judge panel of the United States Court of Appeals for the Ninth Circuit handed down its decision in the case of Native Village of Kivalina v. ExxonMobil Corp., No. 09-17490, 2012 U.S. App. LEXIS 19870 (9th Cir. Sept. 21, 2012). The unanimous decision affirmed the trial court's dismissal of the plaintiffs' action for damages against multiple oil, energy and utility companies based on allegations that greenhouse gas emissions emitted by the defendants have resulted in global warming, which, in turn, has severely eroded the land where the plaintiffs reside and threatens them with imminent destruction. This decision, if left standing, effectively ends the life of federal common law. More importantly, it has grave implications for the future of environmental common law more generally, and could lead to a sea change in how environmental common-law claims are litigated in the future. In particular, it could significantly strengthen the preemption defense for defendants in all environmental common-law actions, under both federal and state law. This decision and its significant implications will be discussed in detail below.

Decision

Despite the trial court in 2009 dismissing the case on political question and standing grounds, the chief focus of the Ninth Circuit's decision was the arcane and rarely invoked doctrine of displacement. This was not a complete surprise since the U.S. Supreme Court had decided the AEP v. Connecticut, 131 S. Ct. 2527, 2535, 180 L. Ed. 2d 435 (2011) , case last year on the displacement doctrine, and the legal theory at issue in Kivalina was the federal common law of public nuisance, just as it was in AEP. It is axiomatic that "there is no federal general common law," but in certain areas of national concern, such as environmental protection, federal courts have the power to fill in "statutory interstices" and, if necessary, even "fashion federal law." This specialized federal common law has been invoked — albeit rarely — by federal courts in the past. However, when there is a federal statute that speaks directly to the issue posted by the federal common-law action, then courts find that the federal common law has been displaced — a concept similar to preemption.

Judge Sidney Thomas, writing for the panel in Kivalina, relied heavily on the U.S. Supreme Court's decision in AEP: "We need not engage in [a] complex issue and fact-specific analysis in this case, because we have direct Supreme Court guidance" that "has already determined that Congress has directly addressed the issue of domestic greenhouse gas emissions from stationary sources and has therefore displaced federal common law." Judge Thomas does note, however, one key distinction between the facts in Kivalina and those in AEP: "Kivalina does not seek abatement of emissions; rather, Kivalina seeks damages for harm caused by past emissions." He found though that "the Supreme Court has instructed that the type of remedy asserted is not relevant to the applicability of the doctrine of displacement," relying most heavily on the 1981 decision by the U.S. Supreme Court in Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 4 (1981). He concluded that "under current Supreme Court jurisprudence, if a cause of action is displaced, displacement is extended to all remedies."

He then confronted an argument raised by the plaintiffs — that there could not possibly be displacement when there is no federal statutory remedy for monetary damages as a result of climate change. Judge Thomas noted, however, that "if the federal common law cause of action has been displaced by legislation, that means that 'the field has been made the subject of comprehensive legislation' by Congress" and that "[w]hen Congress has acted to occupy the entire field, that action displaces any previously available federal common law action" including remedies. He thus concludes that "AEP extinguished Kivalina's federal common law public nuisance damages action, along with the federal common law public nuisance abatement actions." In conclusion, he states that "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" — an apparent nod to the district court's reliance on the political question doctrine.

Concurrence

Another member of the panel, District Court Judge Philip Pro, sitting by designation, wrote a lengthy concurrence that wrestled with the displacement issue in much more detail. He explained that he wrote separately for two reasons: (1) because there is "tension in Supreme Court authority on whether displacement of a claim for injunctive relief necessarily calls for displacement of a damages claim"; and (2) because he wanted to express his view that Kivalina lacked standing. His concurrence stands in marked contrast to Judge Thomas's decision that resolved the displacement issue very matter-of-factly and without any real acknowledgement that there was any tension in Supreme Court authority.

Judge Pro explains that the Supreme Court's decision in the 2008 case of Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), appears to be a "departure" from the 1981 case relied upon by Judge Thomas — Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 4 (1981). He goes through Exxon in meticulous detail as well as a case relied on by the Exxon Court : Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984). Ultimately though, he reaches the same conclusion, albeit one after much more hand-wringing, as Judge Thomas did in his decision. He does so by deeming the Exxon result an outlier, arguing that it "stray[ed]" from and is "at odds" with Middlesex.

He, like Judge Thomas, finds that the lack of a federal remedy is not dispositive:

Consequently, the lack of a federal damages remedy is not indicative of a gap which federal common law must fill. Congress could have included a federal damages cause of action in the CAA, and it may add one at any time, but thus far it has opted not to do so. By supplying a federal remedy Congress chose not to provide, this Court would not be 'filling a gap,' it would be 'providing a different regulatory scheme' than the one chosen by Congress.

His concurrence concludes with a detailed analysis of why he believes Kivalina lacks standing as well.

Future Outlook

The plaintiffs in Kivalina now have two options: appeal the decision en banc to the full Ninth Circuit and/or ask the U.S. Supreme Court to grant certiorari. It is unlikely that either will decide to review the case. Indeed, en banc review is granted in far less than 1 percent of cases. However, two considerations make further review by either the full Ninth Circuit or the U.S. Supreme Court at least in the realm of possibility. First, the Ninth Circuit grants en banc review far more than many other circuit courts of appeal. In addition, the Ninth Circuit has granted en banc review recently in cases related to both environmental statutes as well as preemption, suggesting that its members have an interest in some of the issues that appear in Kivalina. See, e.g., Karuk Tribe of California v. U.S. Forest Service, et al., No. 05-16801;Stengel v. Medtronic Inc., No. 10-17755. Moreover, we also know that the U.S. Supreme Court has an interest in this issue, since it granted certiorari in AEP. It could possibly jump at the chance to decide issues that were not before it in AEP, especially when at least according to Judge Pro, there is a tension between two U.S. Supreme Court decisions on the issue of displacement of monetary damage claims. Thus, while further review is still unlikely, the chances are better than usual for it to occur in Kivalina.

Significance

There are three significant implications as a result of this decision. The first was expected, the second was a little surprising but nothing earth-shattering and the third has the potential to significantly alter environmental common-law litigation in the future.

Another Nail in the Coffin for Climate Change Litigation

First, the Kivalina decision is yet another nail in the coffin for climate change litigation. This is not unexpected since the U.S. Supreme Court's decision in AEP v. Connecticut gravely wounded the legal theory that emitters of greenhouse gas emissions could be held liable for climate change effects through the common law. Though the AEP decision only barred claims for injunctive relief under the federal common law of public nuisance, even the most optimistic plaintiffs saw little hope that the remaining climate change suits, despite some differences with AEP, would survive. The only real question was not whether they would survive, but the cause of death — political question, standing, proximate causation or displacement. The AEP decision had left the door only slightly ajar for more climate change suits, and the Kivalina decision, assuming it stands, shuts it almost completely.

In many ways, the Kivalina decision is more significant than the AEP decision. Many forget that AEP was one of the earliest-filed climate change suits and that it sought only injunctive relief. Kivalina, on the other hand, was the last significant climate change suit that was filed and as such, it was seen as more evolved and having a higher likelihood of success — a version 3.0 of the climate change suit. Furthermore, it sought money damages for individual plaintiffs, and if successful (or even if it merely survived a motion to dismiss) could have been a popular template for other members of the plaintiffs' bar to pursue, given the potential for a large monetary payout. Many were watching the Kivalina case closely as the test case for climate change litigation. Now that the Ninth Circuit has affirmed its dismissal, the legal theory underlying climate change litigation appears to be in shambles. The only possible basis for other climate change suits would be state common law, and as discussed below, the Kivalina decision suggests that even that possibility might be foreclosed.

The Federal Common Law of Public Nuisance: Rest in Peace

The federal common law of public nuisance died after a long illness at 9:37 a.m. PDT on Sept. 21, 2012. We already knew from the AEP decision that federal common-law actions seeking injunctive relief for environmental pollution were dead. That still left the door slightly ajar though for monetary damage claims. The Kivalina decision firmly shuts that door, leaving no further apparent need for the federal common law of public nuisance. It extends the displacement doctrine arguably further than it has ever before been extended and leaves virtually no exceptions or loopholes. Assuming the Kivalina decision stands (and other circuits eventually adopt it), it is unlikely that we will see any more federal common-law claims based on public nuisance ever again — it is now, for all intents and purposes, an extinct tort.

The Death of Environmental Common Law More Generally?

The final significant implication of the Kivalina decision is that it could significantly strengthen the preemption defense for defendants in all environmental common law actions, under both federal and state law. In fact, one could even argue that it could potentially lead to the death of environmental common law. This requires a bit of imagination, but a close look at both Judge Thomas's and Judge Pro's decisions suggest that such an argument is not complete hyperbole.

Displacement and preemption are closely related concepts. Though the Kivalina court did not consider preemption and though the displacement defense is easier to apply than the preemption defense, the language in the decision is so thoroughly one-sided on the displacement issue that it cannot help but strengthen the preemption defense as well. In fact, Judge Thomas's opinion comes very close to collapsing the distinction between displacement and preemption when he states, "When Congress has acted to occupy the entire field, that action displaces any previously available common law action." Similarly, Judge Pro's concurrence discusses a preemption case — Silkwood — in the context of the displacement analysis and seems to acknowledge that the analysis is similar. The most difficult aspect of any preemption defense in environmental common law actions has always been convincing a court to apply it to monetary damage claims, especially when the federal statutes at issue, usually the Clean Air Act and Clean Water Act, do not provide such a remedy for plaintiffs. But the Kivalina decision overcomes both of those difficulties and makes a compelling case for why displacement, and by implication preemption, should be applied to bar common-law environmental actions.

Put simply, this case has the potential to rewrite environmental law in a very significant way. An undercurrent in environmental litigation for years has been this fundamental question: to what extent should any environmental common-law tort claims, state or federal, be permitted in today's world where there are federal and state statutes as well as regulations regarding every conceivable subject matter? With the Kivalina decision, the balance of power on this issue shifts firmly in favor of those asserting the preemption defense. Trial courts are likely to be very receptive to an argument that common-law claims in other environmental contamination suits are preempted by federal and state statutes — a very good development for those who are likely to be defendants in such suits.

Conclusion

The stakes in environmental contamination litigation are high, and the law is rapidly changing, providing both opportunities and perils for corporate defendants. Lawyers in McGuireWoods LLP's Toxic Tort & Environmental Department, its Energy & Climate Change industry team and its Public and Private Nuisance Litigation team have significant experience in this type of litigation and are well suited to defend clients against such lawsuits.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
R. Trent Taylor
 
In association with
Related Video
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
Accounting and Audit
Anti-trust/Competition Law
Consumer Protection
Corporate/Commercial Law
Criminal Law
Employment and HR
Energy and Natural Resources
Environment
Family and Matrimonial
Finance and Banking
Food, Drugs, Healthcare, Life Sciences
Government, Public Sector
Immigration
Insolvency/Bankruptcy, Re-structuring
Insurance
Intellectual Property
International Law
Law Practice Management
Litigation, Mediation & Arbitration
Media, Telecoms, IT, Entertainment
Privacy
Real Estate and Construction
Strategy
Tax
Transport
Wealth Management
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.