Appeals court rejects CO2 claim by Alaska village

The U.S. Ninth Circuit Court of Appeals on Sept. 21 ruled that the Native Village of Kivalina and the City of Kivalina in Alaska need to federal legislative and regulatory action to protect it from the impacts of global warming, not relief through common law.

Kivalina had appealed a district court’s dismissal of their action for damages against multiple oil, energy and utility companies, including the lead defendant, oil producer ExxonMobil (NYSE: XOM). Among the electric utilities involved in the case were Xcel Energy (NYSE: XEL), American Electric Power (NYSE: AEP) and Southern Co. (NYSE: SO). Leading U.S. coal producer Peabody Energy (NYSE: BTU) has also been a defendant.

Kivalina, located along the northwest coast of Alaska, alleged that massive greenhouse gas emissions emitted by the so-called “Energy Producers” have resulted in global warming, which, in turn, has severely eroded the land where the City of Kivalina sits and threatens it with imminent destruction. Kivalina sought damages under a federal common law claim of public nuisance. The question before the appeals court was whether the Clean Air Act, and the U.S. Environmental Protection Agency action that the Act authorizes, displaces Kivalina’s claims. The appeals court held that it does.

“In sum, the Supreme Court has held that federal common law addressing domestic greenhouse gas emissions has been displaced by Congressional action,” the appeals court wrote. “That determination displaces federal common law public nuisance actions seeking damages, as well as those actions seeking injunctive relief. The civil conspiracy claim falls with the substantive claim. Therefore, we affirm the judgment of the district court. We need not, and do not, reach any other issue urged by the parties. 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.”

Said AEP’s July 27 Form 10-Q report about this case: “In 2008, the Native Village of Kivalina and the City of Kivalina, Alaska filed a lawsuit in Federal Court in the Northern District of California against AEP [American Electric Power Service Corp.] and 22 other unrelated defendants including oil and gas companies, a coal company and other electric generating companies. The complaint alleges that the defendants’ emissions of CO2 contribute to global warming and constitute a public and private nuisance and that the defendants are acting together. The complaint further alleges that some of the defendants, including AEP, conspired to create a false scientific debate about global warming in order to deceive the public and perpetuate the alleged nuisance. The plaintiffs also allege that the effects of global warming will require the relocation of the village at an alleged cost of $95 million to $400 million. In October 2009, the judge dismissed plaintiffs’ federal common law claim for nuisance, finding the claim barred by the political question doctrine and by plaintiffs’ lack of standing to bring the claim. The judge also dismissed plaintiffs’ state law claims without prejudice to refiling in state court. The plaintiffs appealed the decision.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.