Alaskan village loses appeal in global warming case against oil giants


By Leigh Jones, The National Law Journal –

Date of publication: 
24 September 2012

Residents of an Alaskan village threatened by an eroding coastline have lost an appeal in a closely watched case against some of the biggest oil producers in the world.

The U.S. Court of Appeals for the Ninth Circuit on September 21 found that the village of Kivalina could not recover money damages from ExxonMobil Corp., BP America Inc., Chevron Corp. and other energy companies for greenhouse gas emissions that the plaintiffs said threaten the destruction of their northwest Alaskan coastal homes.

The village, with a population of 400, is composed of 97 percent Inupiat Native Alaskans. The plaintiffs alleged that greenhouse gas emissions caused by the companies’ products had eroded sea ice that hugs the village’s coastline and protects it from powerful winter storms. The plaintiffs claimed that the entire village needed to move, at a cost of up to $400 million, to survive.

A three-judge panel, in an opinion by Judge Sidney Thomas, affirmed a ruling by the U.S. District Court for the Northern District of California. He wrote that that the villagers could not sue under the tort theory of public nuisance nor obtain monetary damages. Additionally, he wrote, a public-nuisance claim under federal common law was precluded, or “displaced,” by the federal Clean Air Act. That statute allows for lawsuits by private parties under limited circumstances.

Also on the appeals panel were Ninth Circuit Judge Richard Clifton and U.S. District Judge Philip Pro of Nevada, sitting by designation.

In reaching its decision, the court relied on a case decided last year by the U.S. Supreme Court. In American Electric Power Co. (AEP) v. Connecticut, the justices held that the Clean Air Act, instead of nuisance claims, provided a way to stop the energy companies from emitting greenhouse gases. Plaintiffs in the AEP case included the city of New York and eight states.

The Ninth Circuit panel ruled similarly, even though the Kivalina plaintiffs sought monetary damages as opposed to the injunction at issue in the Supreme Court case.

“The Supreme Court has held that federal common law addressing domestic greenhouse gas emissions has been displaced by Congressional action,” Thomas wrote. “That determination displaces federal common law public nuisance actions seeking damages, as well as those actions seeking injunctive relief.”

Other defendants in the case included ConocoPhillips, Royal Dutch Shell, the AES Corp., Duke Energy Corp., and Edison International.

Arguing for the plaintiffs before the appeals court was Matthew Pawa of the Pawa Law Group in Newton Centre, Mass.

“Obviously, we disagree with the decision,” Pawa said. “We’re disappointed.” His clients have 14 days following the decision to seek an en banc review by the 9th Circuit or to seek review by the Supreme Court.

Throughout the case, which was filed in 2008, the parties were represented by some of the nation’s top law firms and public-service practices. Among those representing the village were Susman Godfrey; Reich & Binstock; Seeger Weiss; and the Center on Race, Poverty and the Environment in San Francisco.

Defense firms included Munger, Tolles & Olson; O’Melveny & Myers; Kirkland & Ellis; Jones Day; King & Spalding; Sidley Austin; and Arnold & Porter. Filing amicus briefs in support of the defense were the U.S. Chamber of Commerce, the American Tort Reform Association and the National Association of Manufacturers.

Contact Leigh Jones at ljones [at] alm [dot] com.