Kivalina, Alaska is located on the northwest coast of Alaska.((Native Village of Kivalina v. ExxonMobil Corp. (Kivalina II), 696 F. 3d 849, 853 (9th Cir. 2012).)) It is only six miles long and sits atop a barrier reef only seventy miles from the Arctic Circle.((Id.)) This city is home to a “federally recognized tribe of Inupiat Native Alaskans,” and has a population of only four hundred. Of these four hundred, approximately ninety-seven percent are native Alaskans.((Id.)) Unfortunately, several decades of sea storms have threatened the life of these native Alaskans and their home.((Id.)) In fact, if these storms do not subside, or a change does not occur, the village must relocate or otherwise cease to exist.((Id.)) Previously, the village had been protected from these storms by the sea ice that forms on their coast lines during the fall, winter, and spring seasons; recently, however, the sea ice has begun forming later in the year, breaking up earlier in the year, and has been overall less of a protection due to its decrease in size.((Id.)) Kivalina, the Petitioner in the suit, fault global warming for the injuries they are continuing to suffer – their once protected land is being destroyed as a result of the arctic sea ice that formerly shielded them from sea and snow storms.((Id.))
The village of Kivalina alleges that the Energy Producers((This group consists of multiple oil, energy, and utility companies. Id. at 853.)) are responsible for this damage as they are “substantial contributors to global warming.”((Id. at 854.)) They further allege that the Energy Producers are “acting in concert to create, contribute to, and maintain global warming and. . . conspiring to mislead the public about the science of global warming.”((Id.)) The district court for the Northern District of California dismissed the action, and the village of Kivalina appealed.((Id. at 853.))
The district court held that the issue was, in fact, nonjusticiable on the matter of the federal public nuisance claim.((Id.)) The court concluded that the issue was best left to the legislative or executive branch because in order to rule in the case at hand, it would have to effectively determine what an appropriate limit of greenhouse gas emissions was in order to determine who would bear the cost of global warming.((Id.)) Additionally, the court found problems with causation, specifically, that Kivalina could not establish “geographic proximity to the Energy Producers’ alleged ‘excessive’ discharge of greenhouse [g]ases to infer causation.”((Id. at 854 citing Kivalina I 663 F.Supp. 2d at 881-82.)) Kivalina appealed the district court’s judgment, and the issue on review by the appellate court is the dismissal for lack of subject matter jurisdiction. Specifically, the court addressed whether legislative action has made the federal common law claim of public nuisance unavailable to the plaintiffs.((Id. at 855.)) Ultimately, the court held that “domestic greenhouse gas emissions has been displaced by Congressional action,” and therefore the petitioners cannot bring a federal common law public nuisance action for damages or injunctive relief.((Id. at 858.)) Further, because the federal conspiracy claim depended upon the success of the federal public nuisance claim, it must fail as well.((Id.))
The applicable test to establish a public nuisance claim “generally requires proof that a defendant’s activity unreasonably interfered with the use or enjoyment of a public right and thereby caused the public-at-large substantial and widespread harm.”((Id. at 855 citing Missouri v. Illinois, 200 U.S. 496, 521 (1906).)) Despite acknowledging a federal common law nuisance claim, the majority is also quick to acknowledge that it is a limited claim and is subject to the “paramount authority of Congress.”((Id. at 856 citing New Jersey v. New York, 238 U.S. 336, 348 (1931).)) Applied here, claims can only be brought when a federal question cannot be answered from federal statutes alone((Id. at 856 citing City of Milwaukee v. Illinois (“Millwaukee II”), 451 U.S. 304, 314 (1981).)); however, when federal statutes do answer the federal question at hand, “federal common law does not provide a remedy because legislative action has displaced a common law.”((Id. at 856.))
Drawing a comparison between AEP and the case at hand, the majority first discusses AEP((The plaintiffs in this case were made up of “eight states the city of New York, and three private land trusts [who] brought a public nuisance action against ‘the five largest emitters of carbon dioxide in the United States’ . . .the plaintiffs alleged that defendants’ carbon-dioxide emissions created a ‘substantial and unreasonable interference with public rights,’ in violation of the federal common law of interstate nuisance” and therefore sought to enjoin the emitters through a “court-ordered imposition of emission caps.” Id. at 857 citing AEP 131 S.Ct. at 2534.)), whose court concluded that a federal statute, namely the Clean Air Act (“CAA”) provided a means to “seek limits on emission of carbon dioxide,” and therefore held that the act and “the EPA [Environmental Protection Agency] actions it authorizes displace any federal common law right to seek abatement.”((Id. citing AEP, 131 S.Ct. at 2537-38.))
The Ninth Circuit Court of Appeals (the “Court”) correctly made the distinction between these two cases: the petitioners in AEP were seeking injunctive relief, while the Village of Kivalina is seeking damages for the harm caused by the emissions. Nonetheless, the Court still found that Congress has displaced federal common law.((Id. at 857.)) In reaching this conclusion the majority wrote that the Supreme Court has already concluded that the type of remedy requested bears no relevance on the doctrine of displacement because once “a cause of action is displaced, displacement is extended to all remedies.”((Id..)) The Court concluded that any aid or solution must “rest in the hands of the legislative and executive branches of our government, not the federal common law.”((Id. at 858.))
The Court ended its opinion in Kivalina by acknowledging that the conclusion reached does not “aid Kivalina, which itself is being displaced by the rising sea.”((Native Village of Kivalina v. ExxonMobil Corp, 696 F.3d 849, 858 (9th Cir. 2012).)) The court urges that the “solution to Kivalina’s dire circumstance must rest in the Executive branches of our government, not the federal common law.”((Id. at 858.)) While the Court appropriately determined that if an “action is displaced, displacement is extended to all remedies,”((Id. at 857.)) the conclusion reached by this determination is inappropriate because Congressional Action has not actually displaced a cause of action in this case.
The majority here has relied on AEP to reach its conclusion; however, this reliance is mistaken. The simple facts of the case, and the impact of the pollution differ so drastically that the application of the standards set forth in AEP is unacceptable here.
In Native Village of Kivalina the plaintiffs are not simply asking for a limit on emissions, which arguably has been displaced by the CAA, but they are asking for relief for decades of pollution that has resulted in the destruction of their land. Therefore, the action has not been displaced, because the CAA does not provide directly or indirectly for punitive relief against the polluters. Thus, the action is focused on Kivalina’s restructuring as a result of action by the pollutants – the cause and effect of this issue is starkly different from that of the relationship of the parties in AEP where the focus was on stopping an action by an opposing party, namely the four private power companies.
While it could be argued that a case granting damages for carbon-dioxide emissions could set a dangerous precedent for the future, this is not so. The facts surrounding this case would set a very high standard to meet in order for damages to be granted. Additionally, the precedent set would likely aid in the fight against global warming.
As the case rests now, the legislature must respond to the call to action given by the majority of the Court. Without a drastic change in policy, Kivalina will cease to exist within a decade, creating America’s first case of “climate change refugees.” While Exxon and the other polluters would face an incredible expense if forced to remedy this situation, this expense is simply shifted to the United States Government if forced to relocate the native people of Kivalina.((Id.)) It is estimated that this relocation will cost $400 million dollars in order to get the inhabitants Kivalina to “higher ground – build a road, houses, and a school.”((Id.))