[UPDATED] The Alaskan village of Kivalina’s lawsuit to hold oil and energy companies liable for their role in global warming and rising sea water has failed in a federal appeals court. The last option in the courts will be the U.S. Supreme Court.
The 9th U.S. Circuit Court of Appeals ruled Friday that a federal public nuisance action for damages was cut off when the U.S. Supreme Court said last year that Congress, not the courts, holds the key to addressing domestic greenhouse gas emissions.
Kivalina sought as much as $95 million from ExxonMobil Corp, BP, ConocoPhillips and other major energy and utility companies.
The Inupiat native Alaskan city with 497 residents, sits on a barrier reef on the northwest coast of Alaska 70 miles from the Arctic Circle. It’s survival has been threatened by erosion and wave action and sea storms for several decades.
It is dependent on sea ice to protect it from heavy winter storm surges, but the lawsuit alleged that the impending destruction of its land is due to global warming and greenhouse gas emissions from energy companies and utilities.
It is no longer viable for the city to remain near the water’s edge. If the entire infrastructure is not relocated soon it may cease to exist, according to the suit.
At the trial court level, U.S. District Judge Saundra Armstrong in Oakland found that the city lacked standing to bring a public nuisance suit.
Judge Sidney Thomas said that federal common law can apply to cross-border pollution lawsuits. But under federal common law, a public nuisance is any unreasonable interference with common rights of the general public.
When Congress enacts federal law that directly answers federal questions, then common law cannot be used to provide a remedy. That must come from the legislative enactment.
“If Congress has addressed a federal issue by statute, then there is no gap for federal common law to file,” Thomas wrote.
Once the Supreme Court ruled that Congress has addressed the issue of domestic greenhouse gas emissions, that displaced the federal common law. It did so last yer in American Electric Power Co., Inc. v. Connecticut.
In that case, eight states and New York city brought public nuisance suits against the five largest carbon dioxide emitters in the U.S. and asked the courts to provide emission caps.
Kivalina, by contrast, does not seek abatement of emissions but damages for rising sea water and the cost of moving the city to higher ground.
The resolution must come from the Clean Air Act and the Environmental Protection Agency.
Kivalina has said global warming is caused through the build-up of carbon dioxide and methane, commonly called greenhouse gases. Trapping atmospheric heat warms the planet and oceans are less able to remove the greenhouse gases.
Seawater surface expands as it warms, ice caps and glaciers begin to melt and water levels rise.
Native Village of Kivalina v. ExxonMobil No. 09-17490