Native Village of Kivalina v. Exxonmobil Corporation

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIVE VILLAGE OF KIVALINA; 

CITY OF KIVALINA,

Plaintiffs-Appellants, v.

EXXONMOBIL CORPORATION; BP

P.L.C.; BP AMERICA, INC.; BP

PRODUCTS NORTH AMERICA, INC.;

CHEVRON CORPORATION; CHEVRON

U.S.A., INC.; CONOCOPHILLIPS

COMPANY; ROYAL DUTCH SHELL

PLC; SHELL OIL COMPANY; No. 09-17490

PEABODY ENERGY CORPORATION;

THE AES CORPORATION; AMERICAN  D.C. No. 4:08-cv-01138-SBA

ELECTRIC POWER COMPANY, INC.;

AMERICAN ELECTRIC POWER OPINION

SERVICES CORPORATION; DUKE

ENERGY CORPORATION; DTE

ENERGY COMPANY; EDISON

INTERNATIONAL; MIDAMERICAN

ENERGY HOLDINGS COMPANY;

PINNACLE WEST CAPITAL

CORPORATION; THE SOUTHERN

COMPANY; DYNEGY HOLDINGS, INC.;

XCEL ENERGY, INC.; GENON

ENERGY, INC.,

Defendants-Appellees.  Appeal from the United States District Court for the Northern District of California Saundra B. Armstrong, District Judge, Presiding

11641 11642 NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL Argued and Submitted November 28, 2011—San Francisco, California

Filed September 21, 2012

Before: Sidney R. Thomas and Richard R.…

Opinion by Judge THOMAS; Concurrence by Judge PRO.

OPINION

The Native Village of Kivalina and the City of Kivalina (collectively “Kivalina”) appeal the district court’s dismissal of their action for damages against multiple oil, energy, and utility companies (collectively “Energy Producers”). 1 Kivalina alleges that massive greenhouse gas emissions emitted by the 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 seeks damages under a federal common law claim of public nuisance.

The question before us is whether the Clean Air Act, and the Environmental Protection Agency (“EPA”) action that the Act authorizes, displaces Kivalina’s claims. We hold that it does.

I

The City of Kivalina sits on the tip of a six-mile barrier reef on the northwest coast of Alaska, approximately seventy miles north of the Arctic Circle. The city, which was incorporated as a unified municipality under Alaska state law in 1969, has long been home to members of the Village of Kivalina, a self-governing, federally recognized tribe of Inupiat Native Alaskans. The City of…

concurring:

The Native Village of Kivalina and the City of Kivalina (together “Kivalina”) appeal the district court’s dismissal of their federal common law public nuisance claim for damages against Appellees, who are oil, energy, and utility companies. In support of their federal common law nuisance claim, Kivalina alleges Appellees emit massive amounts of greenhouse gases that contribute to global warming which, in turn, has severely eroded the land where the City of Kivalina sits and threatens it with imminent destruction. Kivalina also brought conspiracy and concert of action claims which are dependent on their federal common law nuisance claim. Additionally, Kivalina brought a state law nuisance claim in the alternative to their federal common law claim. The district court dismissed the state law nuisance claim without prejudice to refiling in state court, and no one appeals that decision. Consequently, the question before us is whether Kivalina states a viable federal common law public nuisance claim for damages.

The majority opinion holds that the Clean Air Act (“CAA”) and the Environmental Protection Agency (“EPA”) action the Act authorizes displace Kivalina’s claims. I…