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.