In what may be the last gasp for tort-based claims based on release of greenhouse gases, the Ninth Circuit late last week issued an opinion rejecting a damages claim based on the federal common law of nuisance. Following the U.S. Supreme Court's 2011 opinion in American Electric Power Co. v. Connecticut, which held that federal action to control greenhouse gases under the Clean Air Act displaces lawsuits based upon the federal common law of nuisance, the Ninth Circuit concluded that no lawsuit can be brought under federal common law seeking damages for greenhouse gas pollution.
The case was brought by the Native Village of Kivalina, Alaska, a city of about 400 residents, mostly members of the Inupiat tribe, located 70 miles north of the Arctic Circle on Alaska's northwest coast. Kivalina's coastline is protected from fierce Arctic storms by sea ice that accumulates along the shore. With the decline of Arctic sea ice in recent years, however, much of the land underlying the village has been washed away. Asserting that the loss of sea ice is a the result of greenhouse gas emissions, Kivalina sued a large group of electric utilities, oil companies, and other major users of fossil fuels. Kivalina based its claim on the federal common law, arguing that the release of greenhouse gases across state lines constitutes a federal nuisance because that pollution damages the village's land.