GHG Nuisance Damages – now or later?

Posted on October 8, 2012 by Thomas Lavender

The full import of the pivotal American Electric Power Co., Inc. v. Connecticut, 131 S. Ct. 2527 (2011), decision holding that federal common law claims for injunctive relief were displaced by federal regulation of GHGs under the CAA remain to be decided.  The Ninth Circuit Court of Appeals has now upheld the dismissal of a federal nuisance action filed in 2008 against Exxon Mobil et al., seeking damages for flooding attributable to climate change.  Native Village of Kivalina v. Exxon-Mobil Corp., No. 09-17490 (Sept. 21, 2012).  Damage estimates approached $400 million.  The suit was dismissed by the District Court in 2009 on the grounds the regulation of greenhouse gases was a legislative matter rather than a judicial controversy and for lack of standing.

The Supreme Court in AEP held only that the plaintiff was not entitled to injunctive relief.  Relying on AEP, the Ninth Circuit held that the federal Clean Air Act displaces climate change-related federal common law public nuisance claims for both injunctive relief and damages.  In a concurring opinion, Judge Pro wrote that he would have dismissed for lack of standing as the plaintiff had failed to prove its injuries were directly attributable to the defendants.

In AEP, the Supreme Court held that the CAA would bar state common law nuisance claims if such claims were preempted, but the Court did not decide if the CAA in fact preempted state common law nuisance claims.   In Kivalina, the district court dismissed the state common law nuisance claims without prejudice.  The Ninth Circuit did not rule on the validity of these claims.  Since the plaintiff’s state common law claims are undisturbed by this decision, it remains to be seen whether Kivalina or other will pursue such claims.



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