Federal appeals court denies Alaskan village's petition for rehearing in global warming suit

SAN FRANCISCO (Legal Newsline) -- A federal appeals court has denied a petition for a rehearing of a case by an Alaskan village claiming that global warming is eroding its shoreline.

In October, the village of Kivalina -- which claims in its lawsuit that several power companies are to blame -- filed a motion for a rehearing of a September decision by the U.S. Court of Appeals for the Ninth Circuit.

A three-judge panel of the court decided the village's case is preempted by the Environmental Protection Agency's Clean Air Act.

In its petition, the village requested the full roster of Ninth Circuit judges hear its appeal.

Circuit judges Sidney R. Thomas and Richard R. Clifton, along with Judge Philip M. Pro of the U.S. District Court for the District of Nevada, sitting by designation, denied the village's petition in a Nov. 27 order.

"The panel has voted to deny the petition for rehearing en banc," the one-page order states. "The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on the petition for rehearing en banc."

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)e right to assert a federal common law public nuisance claim has limits," Thomas wrote in September. "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."

The judge 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," Thomas 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 defendants are American Electric Power Company, American Electric Power Services Corporation, BP America, BP Products North America, Chevron Corporation, Chevron U.S.A., ConocoPhillips Company, DTE Energy Company, Duke Energy Corporation, Dynegy Holdings Inc., Edison International, ExxonMobil Corporation, GenOn Energy, MidAmerican Energy Holdings Company, Peabody Energy Corporation, Pinnacle West Capital Corporation, Shell Oil Company, The AES Corporation, The Southern Company and Xcel Energy.

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 Jessica Karmasek by email at jessica@legalnewsline.com.