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September Surprise — Ninth Circuit Roils Environmental Law

by Bruce Flushman

In the battle raging around control or regulation of green house gas emissions, a potent weapon was thought to be the “federal common law” of nuisance.  Or put more directly, the claimed power of federal court to create law where federal statutes or the Constitution did not clearly occupy the field.  Surprisingly, the decision of the Ninth Circuit Court of Appeals in Native Village of Kivalina v. ExxonMobil Corp., No. 09-17490, 2012 U.S. App. Lexis 19870 (9th Cir. Sept. 21, 2012) may have driven a stake in the heart of that doctrine.  

The Village of Kivalina decision affirmed dismissal of an Alaskan village’s suit seeking monetary damages for the threat of being swamped by rising sea levels caused by climate change. The Village alleged defendant energy, oil and utility companies were liable for damages as their greenhouse gas emissions worsened climate change and led to rising ocean levels and other environmental damage impacting the Village.  The Ninth Circuit decided that federal statutory law, specifically the Clean Air Act, “displaced all other remedies, including monetary damages.  Stated another way, the Ninth Circuit decision left no room for “federal common law” to occupy any perceived ambiguity or coverage of federal statutory environmental law.  And some may argue the existence of a comprehensive scheme of federal statutory regulation pre-empts even state environmental common law.  

As a result of this case, unless the Village is successful in having the decision overturned by an en banc panel of the Ninth Circuit or the case is taken up and overturned by the U.S. Supreme Court, this decision could provide a sea change in environmental law.