Legal Disputes Related to Climate Change Will Continue for a Century is the title of a recently published legal paper authored by Richard J. Pierce, Jr., a professor of Public Law at George Washington University Law School in Washington, D.C.  He said he was confident that his current law students would be working on climate change issues 50 years from now.  He also wrote that "[t]he task of effectively mitigating climate change is somewhere between extremely difficult and impossible."  But some in American society believe they cannot wait for uncertain solutions to climate change which results in sea level rise and more violent weather.

For the Native Village of Kivalina, located on the shore's edge in northwest Alaska, the reality of climate change is already hitting home, in the form of greater exposure to large-scale coastal storms because of receding ice packs.  According to the 9th Circuit Court of Appeals, the reality is such that if the village is not relocated soon, it will cease to exist.  Native Village of Kivalina v. ExxonMobil, et al., No. 09-17490 (Sept. 21, 2012) Sl. Op. at 11649.  With no immediate mitigation help in sight, Kivalina (400 residents) filed a lawsuit against 22 of the largest energy producers in the United States and sought damages for wave and storm damage to their community on the basis of common law tort theories, such as public nuisance.  Similar cases have been filed in other circumstances where a claim can be made that environmental damage is traceable to a company or individual who has breached a duty and that breach causes (legally and factually) injury to another, and damages result.  For the Native Village of Kivalina, the entire village may have to be abandoned and immediate relief was needed.  In their view, those who develop and profit from energy resources should pay the externality costs on society for the use of those resources.  See, Ronald Coase, "The Problem of Social Cost", 3 Journal of Law and Economics 1-44 (1960).

But a federal common law tort action, as a way of requiring energy producers to pay the social cost of carbon dioxide driven climate change, does not exist, according to the 9th Circuit's ruling in the Native Village of Kivalina case.  Federal common law (i.e. judge-made law) may only address problems that have not been addressed by a federal statute.  Kivalina alleged that greenhouse gases, emitted by the energy producers, crossed state lines and resulted in damage to the village.  Relying on the Supreme Court's decision in American Electric Power Co., Inc. v. Connecticut, 131 S. Ct. 2527 (2011), the 9th Circuit ruled that Congress spoke to this issue in Clean Air Act when it provided the Environmental Protection Agency (EPA) with the authority to regulate the emission of greenhouse gases from stationary and mobile sources in the United States.  In the Supreme Court opinion, it was noted that EPA had already begun a rulemaking aimed at limiting greenhouse gas emissions from existing fossil-fuel power plants.  131 S. Ct. at 2533.  Moreover, as a result of the Supreme Court's decision in Massachusetts v. EPA, 127 S. Ct. 1438 (2007) defining greenhouse gas emissions from motor vehicles to be "pollutants" under the Clean Air Act, the EPA has started a rulemaking for controls on motor vehicles as well.

Courts are now, rather consistently, finding that tort claims for climate change damages against entities that produce energy or emit greenhouse gasses, have been superseded by Congressional action.  As the 9th Circuit opinion summarized:

"Our conclusion does not aid Kivalina, which itself is being displaced by the rising sea.  But the solution to Kivalina's dire circumstances must rest in the hands of the legislative and executive branches of our government, not the federal common law."

James P. Walsh is a partner in DWT's San Francisco office whose practice concentrates on environmental and natural resources litigation, principally in federal court.