The Ninth Circuit has repeated what the Supreme Court has already said about plaintiffs suing polluters for climate change: look to the Clean Air Act and the EPA for possible relief, not the federal courts. Courts simply won’t hear claims that the polluters have created a common law nuisance when federal law covers the area.
In American Electric Power Company, the Supreme Court held that courts cannot issue injunctions against polluters to make them reduce or stop greenhouse gas emissions. In Native Village of Kivalina v ExxonMobil Corp. (.pdf), the Ninth Circuit added that polluters also can’t be held liable for monetary damages.
The Ninth Circuit case was brought by the village of Kivalina, Alaska, against numerous oil and energy companies on behalf of its residents. Kivalina residents rely on sea ice protecting the village against severe winter storms, but with globally rising temperatures, less ice is being formed for shorter periods of time. This has made living in the the village unsafe. The residents must relocate to safer ground, which will cost millions of dollars. They claim that the defendants caused the problem through their climate-changing activities and should thus pay for the relocation.
The Ninth Circuit’s decision may have foreclosed suit against individual defendants based on federal common law, but they can, at least in theory, still sue in state court for whatever remedies they may have under state law. But if they go that route, there may be a problem with causation and thus standing: courts have also made it clear that it is an almost impossible legal hurdle to try to link a few select defendants to climate change, which is caused by a large and uncertain range of greenhouse gas emitters over a lot of time. As the Ninth Circuit said,
Kivalina…seeks to hold these particular Appellees, out of all the greenhouse gas emitters who ever have emitted greenhouse gases over hundreds of years, liable for their injuries.
If they can’t prove causation, plaintiffs will have no standing to sue anyone, whether in state or federal court.
This has also been the outcome in climate change lawsuits brought by the organization Our Children’s Trust, which arranged for lawsuits to be filed across the nation to force state regulators to limit greenhouse gas emissions. All but one of these lawsuits were dismissed because the plaintiffs couldn’t identify which particular polluters caused the alleged climate change injuries.
In California, energy companies can rest even more assured than before that they are shielded from lawsuits based on their past actions. But they should still watch out for potential state and federal legislation and regulations on climate changing activities.
Greenhouse gas emission and climate change as they relate to CEQA is discussed in CEB’s Practice Under the California Environmental Quality Act, chaps 13 and 20. Also check out CEB’s California Land Use Practice, chap 5 on sustainability and climate change regulations.
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