On Friday, September 21, 2012, the Ninth Circuit Court of Appeals issued an important opinion in the developing area of climate-change litigation, affirming the dismissal of a lawsuit that threatened the energy sector with potentially limitless liability.

In Native Village of Kivalina, et al. v. ExxonMobil Corp., No. 09-17490 (9th Cir. Sept. 21, 2012), the city of Kivalina — located on a small island off the coast of Alaska — sued several oil and power companies to recover US$400 million, alleging in public nuisance claims that the companies “tortiously” contributed to the global warming that has severely eroded the island’s shoreline, requiring its residents to be relocated. The district court dismissed Kivalina’s claims on two grounds: 1) plaintiffs lack standing because their injuries are not “fairly traceable” to any of the defendants’ alleged wrongdoing; and 2) because the issues raised by the complaint require a legislative, not a judicial, solution, the claims are barred by the political question doctrine.

The Ninth Circuit, without reaching the issue of standing, affirmed the dismissal on the ground that federal public-nuisance actions based on global warming have been displaced by the Clean Air Act.

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