One day short of five years since the case was originally filed, on February 25, 2013 the plaintiffs in Native Village of Kivalina v. ExxonMobil Corp. attempt once more to get out of the starting blocks, this time with a petition for certiorari to the United States Supreme Court. This follows dismissal by the Northern District of California in 2009, affirmance of the dismissal by the Ninth Circuit last September, and denial of a petition for rehearing en banc in November. To be trite, it’s a marathon, not a sprint. The response, if any, is due on April 3. We can expect a decision on the petition a few weeks after that.
The substance of the petition was easily predicted. The tension between Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1 (1981), and Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), and mentioned by the concurrence (Judge Pro, sitting by designation on the Ninth Circuit) is the center of the argument. Indeed it is the only issue behind the question presented: “Whether the Clean Air Act, which provides no damages remedy to persons harmed by greenhouse gas emissions, displaces federal common-law claims for damages.”
According to the petitioners, the starting point for the analysis is the Court’s 1981 decision in Milwaukee v. Illinois, 451 U.S. 304 (1981) (“Milwaukee II”), where Illinois sought to enjoin Milwaukee’s federally permitted Clean Water Act discharges using the federal common law of nuisance. Petition at 7. In rejecting Illinois’s claim, the Court “focused carefully on whether the statutory scheme ‘spoke directly’ to the plaintiff’s ‘problem,’ and whether the statute gave the plaintiff a means ‘to protect its interests.’” Id. at 8.
The same year, however, the Court also, according to petitioners, issued Middlesex, a decision sharply diverging from Milwaukee II. In Middlesex, fishermen aggrieved by ocean dumping were found to have no federal common law remedy because “’the federal common law of nuisance in the area of water pollution is entirely pre-empted by the more comprehensive scope’ of the [Clean Water Act].” Id. at 10.
These two threads came together 27 years later in Exxon Shipping, where the Court “departed from any broad reading of Middlesex and returned to the more pragmatic and careful analysis of Milwaukee II.” Id. Or maybe not. Kivalina in candor also acknowledged:
To be sure, it is possible to read Middlesex narrowly so as to reconcile the decision with Exxon Shipping. Given Exxon Shipping’s statement that Middlesex is limited to situations where “plaintiffs’ common law nuisance claims amounted to arguments for effluent-discharge standards different from those provided by the CWA,” then it appears that a federal common law damages claim is displaced only where it is so inextricably intertwined with claims for injunctive relief that it amounts to second-guessing of the prospective statutory standards. Id. at 11-12.
Petitioners tied up their arguments with reference to American Electric Power v. Connecticut, 131 S. Ct. 2527 (2011) (“AEP”), the case that established that greenhouse gas claims were displaced by the Clean Air Act. AEP, it was asserted, “pointedly did not follow Middlesex in concluding that the whole 'federal common law of nuisance is entirely' displaced by a 'comprehensive' regulatory scheme, which would have made for a much shorter, and very different, AEP opinion.” Petition at 12. Instead, the gravamen of AEP was that the displaced claims were those that would have interfered with EPA’s authority. Id. at 13.
In sum, “Milwaukee II, Middlesex, Exxon Shipping and AEP cannot all be correctly decided, yet all of them are viewed as good law – a conundrum that Judge Pro acknowledged in his opinion concurring in the result and that ultimately led him, and the other members of the panel, to a result in this case that is at odds with the fundamental rationale for displacement and with basic fairness.” Id. Stated differently, Exxon Shipping permitted common-law damages even though the Clean Water Act displaced claims for injunctive relief. This was to be contrasted with Middlesex, which “held that a federal common-law damages claim was displaced by the Clean Water Act.” Id. at i. We expect that the Kivalina defendants will have a different point of view.
The second part of the petition is the analysis of why the case is so important that the Court should hear it. Kivalina gave four reasons:
1. Climate change is an extremely important subject. In a pointed salvo, petitioners cited to the petition for certiorari in AEP, where some of the same defendants stated “’The questions presented by this case are recurring and of exceptional importance to the Nation.’”
2. Displacement presents a fundamental question of boundaries between the legislative and judicial branches.
3. GHG emissions claims are “inherently important because of the extraordinary nature of global warming.”
4. Kivalina’s very existence is at stake.
Notwithstanding all that, the odds of the petition being granted are long. The Court only accepts between 100-150 of the more than 7,000 cases it is asked to review each year. That is less than a 2% chance, all things being equal. Greenhouse gas emissions were on the Court’s docket in 2007 (Massachusetts v. EPA) and again in 2011 (AEP v. Connecticut). While we agree that climate change cases are important; we are skeptical that this narrow issue (displacement of damages, when the Court has already ruled on displacement of injunctive relief) justifies a place at the finish line, marathon or no.