Native Village of Kivalina v. Exxon Mobil Corporation.

The Alaskan village of Kivalina brought a lawsuit against two dozen energy and utility companies alleging that global climate change traceable to the defendants had led to the loss of the Arctic sea ice protecting the village from winter storms, and that the resulting erosion had threatened the habitability of the village. claimants asserted that defendants' greenhouse gas emissions resulted in warmer winters, which lead to melting of sea ice and erosion of the shoreline around their community to the point that their village was set to fall into the sea. They brought suit against oil and gas companies, electric utilities and a coal company, seeking damages for an alleged nuisance. Plaintiffs did not seek injunctive relief, but instead sought damages for the cost of relocating the village. The district court dismissed Kivalina’s claims on two grounds: 1) plaintiffs lack standing because their injuries are not “fairly traceable” to any of the defendants’ alleged wrongdoing; and 2) because the issues raised by the complaint require a legislative, not a judicial, solution, the claims are barred by the political question doctrine Plaintiffs have appealed the dismissal to the Ninth Circuit. The Ninth Circuit, without reaching the issue of standing, affirmed the dismissal on the ground that federal public-nuisance actions based on global warming have been displaced by the Clean Air Act. In its opinion, the Ninth Circuit followed the Supreme Court’s decision in AEP v. Connecticut, announced on June 20, 2011. In AEP, the Supreme Court put part of the public nuisance climate-change genie back in the bottle, when it vacated a Second Circuit decision and rejected federal public nuisance claims seeking injunctive relief. It held that the Clean Air Act displaces private nuisance law where plaintiffs base nuisance claims on allegations that emission of greenhouse gases have contributed to global warming, at least when plaintiffs are seeking an injunction. The Ninth Circuit held that the doctrine of displacement applies not just to federal climate-change claims seeking injunctive relief but to those claims seeking damages as well.