Last Federal Climate Change Case Dismissed by Ninth Circuit

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[author: Matt Bingham]

Last Friday, the Ninth Circuit dismissed the last climate change lawsuit still pending in the federal courts to the best of my knowledge. Native Village of Kivalina v. ExxonMobil Corp. was a lawsuit by a small Alaskan village against 22 oil, energy, and utility companies, alleging that their greenhouse gas (GHG) emissions caused global warming which prevented historic levels of sea ice from forming around the village. The lack of sea ice exposed the village to massive erosion from the ocean's waves and the possibility of devastating storms in the future. The villagers sought damage payments from the defendants for the harm they suffered from global warming; presumably, at a minimum, the costs of relocating the village, estimated by the Army Corps of Engineers at $95 million.

The U.S. District Court for the Northern District of California dismissed climate change claims in 2009 on the grounds that the case presented a political question that should not be considered by the courts. This decision was significant because both the Second and Fifth Circuits reached the opposite conclusion at around the same time in Connecticut v. American Electric Power and Comer et al. v. Murphy Oil USA et al., respectively. Connecticut v. AEP was reversed by the Supreme Court last summer and Comer et al. v. Murphy Oil USA et al. was vacated by the Fifth Circuit in 2010.  In dismissing Kivalina, the Ninth Circuit essentially just applied the Supreme Court's precedent from Connecticut v. AEP.

The Ninth Circuit ended its opinion with the following paragraph: "Our conclusion obviously does not aid Kivalina, which itself is being displaced by the rising sea.  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."

Significantly, in 2010 EPA issued its "Tailoring Rule" and begin implementing its GHG regulatory scheme. If not for EPA's action, it is likely that these cases -- and perhaps many more -- would still be winding their way through the federal court system.

Read more here and here.