Kivalina: A Major Climate Change Litigation Decision

Recently, the U.S. District Court for the Northern District of California offered a ruling in Native Village of Kivalina, Alaska v. ExxonMobil Corp., et al., that is in stark contrast to the recent "public nuisance" ruling by the Second Circuit Court of Appeals on utility emissions.

Contrary to the sweeping and unprecedented ruling of the 2nd Circuit in State of Connecticut v. American Electric Power Co. Inc., 05-5104-cv (2d Cir., Sept. 21, 2009), the Kivalina court wisely recognized that global climate change allegations cannot support federal question jurisdiction.

Rather than trivializing the suit as an 'ordinary tort case,' the District Court found that the matter could not be resolved without considering the truly global nature of the issue - and the lack of any ascertainable standards to determine its resolution. Unlike the Second Circuit, the court saw major distinctions between ordinary pollution cases and planet-wide climate claims, and was not willing to indulge its creativity to invent liability criteria on a planetary scale.

The court also found that standing was lacking because plaintiffs did not allege facts sufficient to show that their injuries could be plausibly traced to the acts of the named defendants. There was no showing that the defendant's actions were the 'seed' of their injuries, nor was there an allegation that specified how any emissions by particular defendants truly substantially contributed to the global climate. Unlike the Second Circuit, the district court found major differences between Massachusetts EPA - a regulatory claim under administrative principles - and climate change damage claims based in tort.

Although the court's ruling disposes of the case insofar as federal litigation is concerned, an appeal is likely. Moreover, the court dismissed the state law public nuisance claims without prejudice, thereby allowing the case to be refiled in state court to resolve those issues. Hence, even though the scope of the risk has been narrowed, the Kivalina controversy remains unresolved and potentially dangerous.