The Beginning of the End of Environmental Common Law?

A major issue in environmental law is to what extent should any federal or state common law tort claim be permitted when there is a robust federal and state regulatory statutory scheme.  In the recent 9th Circuit Court of Appeals decision, Native Village of Kivalina v. ExxonMobil Corp., the court held that the Clean Air Act and EPA actions displace all federal common law efforts to reduce greenhouse gas emissions.

The Supreme Court found in Massachusetts v. EPA that the Clean Air Act empowered the EPA to regulate greenhouse gas emissions.  Traditionally, when the EPA has not yet spoken on an issue, parties seek to fill in the gaps on regulation of greenhouse gases through common law claims.  In American Electric Power Company v. Connecticut, petitioners brought a public nuisance action against power companies that had the largest carbon dioxide emissions in the country.  Petitioners claimed that the respondent’s “emissions substantively and unreasonable interfered with public rights, in violation of federal common law of interstate nuisance, or state tort law” and sought injunctive relief through court-ordered emissions caps.  The court found that Massachusetts v. EPA required greenhouse gas issues to be decided through the Clean Air Act and EPA, displacing federal common law.  However, since the case involved an injunction, it left open the question of whether federal common nuisance law was viable for monetary damages.

The case of Kivalina involves a tiny village on the tip of a six mile barrier reef island in Alaska.  Typically, Kivalina was protected from storms by sea ice formation around the shoreline.  However, in the last three decades ice has been forming later and melting earlier due to higher Arctic temperatures, causing storm waves and surges to erode the village.  The GAO concluded the erosion was due to climate change, and the Army Corps of Engineers found that the land would be completely lost to erosion between 2016-2021.  Kivalina claims that the higher arctic temperatures are due to global warming, cause in part by the large quantities of greenhouses gases emitted by the respondents.  Their public nuisance claim is based on the fact that respondent’s emission of greenhouse gas caused substantial and unreasonable interference with public rights, including the right to use and enjoy property in Kivalina.  They seek monetary damages due to their eventual relocation and deprivation of their land.

The 9th Circuit of Appeals found that common law addressing greenhouse gas emissions is displaced by Congressional actions, even when claims involve monetary damages.  The court relied on its decision in Middlesex County Sewerage Authority v. National Sea Clammers Ass’n and Exxon Shipping Co. v. Baker, which implied that the type of remedy asserted is not relevant to the applicability of doctrine of displacement.  The Court of Appeals interpreted this to mean if the cause of action has been displaced, all remedies will be displaced.  The court also concluded that although the alleged damage occurred before the EPA issued greenhouse gas regulations, this fact was immaterial because displacement is not an issue between the judicial and executive branches.  Therefore, Kivalina must rely on the executive and legislative branches for relief.  In the concurrence, however, However, Judge Pro asserted that there is some tension between Middlesex and Exxon concerning the question of whether common law injunctive relief also displaces a common law nuisance claim for damages.

Commentators from various environmental blogs and law firms suggest that this decision changes the scope of environmental law litigation, as courts will be less likely to accept federal common law claims for a variety of environmental law topics regulated by the EPA.  There could be an implication for state common law claims as well.  The decision comes close to collapsing the distinction between displacement and preemption by saying that when Congress acts to occupy the entire field, the action displaces any previously available common law action.  Therefore, this has the implication that state common law claims would also be preempted, removing the distinction between preemption and displacement.  The court’s removal of the distinction between injunctive relief and monetary damages would apply to preemption as well.  This would create a shift in environmental law away from common law to statutory law and strengthens the preemption defenses.

Kivalina has filed a petition for a re-hearing en banc.  It will be interesting to see how the court rules on the en banc hearing, and whether this gets taken up by the Supreme Court.  Since state law nuisance claims have not been filed due to waiting for the decision in Kivalina, it will be important to follow if state law nuisance claims are deemed to be preempted by federal law.

Written by Sarah Imhoff, GIELR staff