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Global Warming Victims in Alaska Lose Novel Suit

(CN) - Native Alaskans whose village is teetering on the edge of survival cannot use a federal public-nuisance law to nail energy giants on global warming, the 9th Circuit ruled Friday.

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Kivalina is a tiny town on Alaska's northwest coast, located at the tip of a barrier reef some 70 miles north of the Arctic Circle. Most of the residents are self-governing Inupiat Native Alaskans.

With global warming shrinking the sea ice that once blocked seasonal coastal storms, unchecked waves have eroded the land beneath Kivalina in recent years. The village faces imminent relocation or destruction.

Kivalina as a city and native village sued 22 of the globe's leading energy companies in federal court in Oakland, claiming that ExxonMobil, BP America, Chevron, Conocophillips and others had least partly caused global warming, and thus the town's existential crisis, by emitting greenhouse gases. Kivalina also argued that the energy companies had conspired to create a public nuisance by contributing to global warming and misleading the public about its consquences.

U.S. District Judge Saundra Armstrong dismissed the case, finding the issue best left to Congress and the president. She also said the villagers lacked standing because they could not trace their injury directly to the companies.

A three-judge federal appeals panel unanimously affirmed Friday in San Francisco.

The Clean Air Act (CAA) precludes claims under public-nuisance law in the realm of greenhouse gas regulation, the 16-page decision states.

"The Supreme Court has held that federal common law addressing domestic greenhouse gas emissions has been displaced by Congressional action," according to the lead opinion authored by Judge Sidney Thomas. "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."

"Our conclusion obviously does not aid Kivalina, which itself is being displaced by the rising sea," he added. "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."

U.S. District Judge Philip Pro, sitting on the panel by designation from Nevada, highlighted the lack of standing in a concurring opinion.

"Kivalina has not met the burden of alleging facts showing Kivalina plausibly can trace their injuries to appellees," Pro wrote. "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," he added. "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."

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