Summary of holding
The Ninth Circuit Court of Appeals considered the motion to dismiss de novo. The court asked two questions:
- Whether the theory that the production of greenhouse gases by the Energy Producers, gases which crossed state lines, contributed to global warming, and thereby threatened the existence of Kivalina, could fit within federal common law nuisance; and
- Whether any legislative action displaced federal common law claims.
Relying on Supreme Court precedent in American Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011) (“AEP”), the court held that while federal common law can cover interstate pollution claims, the federal Clean Air Act had displaced any common law claims.
Though plaintiffs argued that they were seeking damages for past harm, not abatement of current emissions, the court found that the remedy sought was irrelevant. The question was whether Congress had acted to address the claim brought:
“[U]nder Supreme Court jurisprudence, if a cause of action is displaced, displacement is extended to all remedies.” (p. 857)
“When Congress has acted to occupy the entire field, that action displaces any previously available federal common law action.” (p. 857)
AEP can be understood to bar federal common law public nuisance damage action as well as abatement actions. That the damage to Kivalina occurred before the EPA set regulations under the CAA for greenhouse gas emissions did not affect the court’s determination:
“The doctrine of displacement is an issue of separation of powers between the judicial and legislative branches, not the judicial and executive branches.” (p. 857)
“[T]he 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.” (p. 858)
Potential takeaways for future climate migration litigation
While the decision is binding only in the Ninth Circuit, it cites to Supreme Court precedent that makes it clear that federal common law nuisance claims are not a viable path to seek justice for people displaced by climate change.
This decision also highlights the significant procedural hurdles that litigants face. Plaintiffs must consider all possible causes of action and issues of standing and justiciability when formulating claims.