Ninth Circuit rules federal common law cannot address global warming.

Native Village of Kivalina v. ExxonMobil Corp.

2012 DJDAR 13325 (September 21, 2012)

(9th. Cir. 2012)

The Kivalina tribe sued major oil, energy, and utility companies, alleging they had emitted massive amounts of greenhouse gases, which was causing global warming and threatening their survival in the Arctic Circle. Specifically, they alleged sea ice, which normally protected them from powerful winter storms, had been thinning over decades, which, in turn, had allowed storm surges to cause massive erosion to the shoreline on which they lived. They sued under federal common law, claiming global warming constituted a substantial and unreasonable interference with public rights. They also alleged defendants had conspired to mislead the public about the science of global warming.

The district court rejected the claim on several bases, and the Ninth Circuit affirmed on one.

The Ninth Circuit examined U.S. Supreme Court cases dealing with federal common law, which is often invoked to address interstate pollution issues. The Court said common law is not available when Congress has enacted legislation that speaks directly to the issue, as opposed to whether there are generally applicable laws. The Supreme Court previously held in American Electric Power Co., Inc. v. Connecticut, 131 S.Ct. 2527 (2011) that the Clean Air Act (“CAA”) already provides a means for the EPA to regulate greenhouse gases from stationary sources.  Further, the Supreme Court later held in Massachusetts v. EPA, 549 U.S. 497 that Congress had acted in the CAA to empower the EPA to regulate greenhouse gases. Thus, the Court had determined that Congress had spoken directly to the issue by legislation. Therefore, the CAA displaced federal common law, including any remedies.

Prepared by John Reaves

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