Alaskan village loses global warming appeal over eroding coastline

John O'Brien Sep. 24, 2012, 1:49pm


SAN FRANCISCO (Legal Newsline) - A federal appeals court has ruled that an Alaskan village can't sue several power companies for coastline damage it says was caused by global warming.

The Friday decision by the U.S. Court of Appeals for the Ninth Circuit affirmed a district court's ruling that the Environmental Protection Agency's Clean Air Act displaces claims made by the village of Kivalina.

The residents of Kivalina are a federally recognized tribe. They sued two dozen companies in 2008, alleging public nuisance on the parts of the defendants. They said climate change has resulted in the erosion of their island.

"(T)he right to assert a federal common law public nuisance claim has limits," Judge Sidney Runyan Thomas wrote. "Claims can be brought under federal common law for public nuisance only when the courts are compelled to consider federal questions which cannot be answered from federal statutes alone...

"If Congress has addressed a federal issue by statute, then there is no gap for federal common law to fill."

Thomas wrote that there was no need to engage in complex analysis in the case because of existing U.S. Supreme Court guidance.

"The Supreme Court has already determined that Congress has directly addressed the issue of domestic greenhouse gas emissions from stationary sources and has therefore displaced federal common law," he wrote.

That decision came in a multistate lawsuit known by the court as American Electric Power Company v. Connecticut. It was decided by a unanimous vote on June 20, 2011, that the EPA is responsible for enforcing the Clean Air Act.

"Our conclusion obviously does not aid Kivalina, which itself is being displaced by the rising sea," Thomas wrote.

"But the solution to Kivalina's dire circumstance must rest in the hands of the legislative and executive branches of our government, not the federal common law."

The case spawned a separate dispute between power provider AES Corporation and its insurer Steadfast. AES claimed Steadfast owed it a defense or liability coverage.

The Virginia Supreme Court ruled in August that Steadfast did not because the complaint did not allege "property damage" caused by an "occurrence," which was necessary for there to be coverage under the policies.

From Legal Newsline: Reach John O'Brien at

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