On November 8-9, 2011 an Arctic gale bore down on the peninsulas, islands, salt marshes and beaches of the Alaska littoral. Named the Bering Sea Superstorm it pounded Alaska with 8-10 foot storm surges, wind gusts up to 75 mph and blizzard conditions. One small community was particularly fearful. Many readers already know of whom we are speaking: Kivalina. The National Weather Service wrote: "WIDESPREAD MAJOR COASTAL FLOODING AND SEVERE BEACH EROSION IS EXPECTED IN THE FOLLOWING AREAS: ... 4. THE CHUKCHI SEA COAST FROM CAPE KRUSENSTERN TO POINT HOPE. THIS INCLUDES THE VILLAGES OF NOME AND KIVALINA WHERE MAJOR DAMAGE FROM COASTAL FLOODING AND STRONG WINDS IS EXPECTED. Fortunately, the seawall at Kivalina held.
While unusual, this was one storm of thousands that have visited high winds and storm surge upon Alaska's shoreline over the millennia. Last Monday a storm of a different sort broke. Although not even rated on the Saffir-Simpson scale, the verbal gusts exhaled before the Ninth Circuit Court of Appeals in Native Village of Kivalina v ExxonMobil Corp. may have substantially more effect than any Arctic storm. Or they may not. (Click here for the video or audio link or oral argument.)
Kudos must be extended to Matt Pawa (Appellant Kivalina) and Daniel Collins (Defendants/Appellees) for masterful argument. Both were completely on top of their game, whether it was jousting with the Court or each other over the Restatement (Second) (and sometimes Third), laying out their key arguments or responding to pointed questions from Judges Thomas, Clifton or Pro (on temporary assignment from the District of Nevada).
(For those to whom Kivalina is not familiar, in a nutshell, a native Alaskan village on the shores of the Chukchi Sea has brought suit against electric utilities, oil companies and one coal company. The complaint asserts the defendants are responsible for excess emissions of greenhouse gases, which have led to global warming, which has resulted in delayed formation of arctic sea ice and early melting as well, which has accelerated the erosion caused by winter storms. The plaintiffs seek damages for the cost of relocating their village. The suit was dismissed on political question grounds by the District Court for the Northern District of California; it is now on appeal to the Ninth Circuit.)
Mr. Pawa opened his argument with the proposition that it is black letter law that no balancing of interests is needed where an intentionally caused nuisance is causing a claimant serious harm. He cited numerous Restatement sections in support. The Court seemed skeptical. Judge Clifton asserted in his question that balancing was called for in the Restatement. Judge Pro wanted to know what instructions Mr. Pawa would give to the jury. Judge Clifton queried: "Why is it so difficult to find a case that remotely resembles this one?" Mr. Pawa pointed to People v. Gold Run Ditch & Mining Co., 66 Cal. 138, 4 P. 1152 (1884), which established, he said, that valid nuisance claims lie against all polluters of a common resource. (We, of course, take strong exception to any referral to carbon dioxide as pollution in light of its ubiquity, natural presence, and lack of toxicity in the atmosphere. The parallels to water vapor - the most prevalent greenhouse gas and in no one's estimation a pollutant - are striking.)
Although there was not enough time in argument to fully develop Gold Run Ditch, it is worth a moment to consider. There the California Supreme Court was asked to enjoin hydraulic mining which was despoiling California's rivers and threatening agricultural interests. In holding that an injunction against the hydraulic mining operator should issue, the Court wrote:
But a legitimate private business, founded upon a local custom, may grow into a force to threaten the safety of the people, and destruction to public and private rights; and when it develops into that condition, the custom upon which it is founded becomes unreasonable, because dangerous to public and private rights, and cannot be invoked to justify the continuance of the business in an unlawful manner. Every business has its laws, and these require of those who are engaged in it to so conduct it as that it shall not violate the rights that belong to others. Accompanying the ownership of every species of property is a corresponding duty to so use it as that it shall not abuse the rights of other recognized owners ... Upon that underlying principle, neither State nor Federal legislatures could, by silent acquiescence, or by attempted legislation ... divest the people of the State of their rights in the navigable waters of the State for the use of a private business, however extensive or long continued .... As we have already said, the rights of the people in the navigable rivers of the State are paramount and controlling. 66 Cal. at 152.
The effect of Gold Run Ditch and a parallel decision in federal court, Woodruff v. North Bloomfield Mining Co., 18 F. 753 (1884), effectively ended hydraulic mining in California. Whether a similar ruling could be used against entities emitting carbon dioxide into the atmosphere remains to be seen.
Another interesting argument broached by Mr. Pawa concerned what he referred to as trivial emitters. Judge Thomas played into his hand with a question about whether his driving to work made him a defendant. According to Mr. Pawa Section 36 of the Restatement (Third) takes care of that issue and negates liability to trivial emitters. That section provides: "When an actor’s negligent conduct constitutes only a trivial contribution to a causal set that is a factual cause of physical harm under § 27, the harm is not within the scope of the actor’s liability." Mr. Pawa would permit the defendants to demonstrate that they constitute trivial contributors to the global warming problem.
In closing, Mr. Pawa cited the substantial precedent in his clients' favor. The Second Circuit reversed the trial court and found standing for the plaintiffs in Connecticut v. AEP, 582 F.3d 309 (2d Cir. 2009), which was not reversed by the Supreme Court. Likewise the appellate panel in Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir. 2009), also reversed the trial court and found standing for the climate change liability plaintiffs. (Mr. Pawa acknowledged that the decision had been vacated and cited the decision for the panel's thinking, not as precedent.) Last, in Massachusetts v. EPA, 127 S.Ct. 1438 (2007), the Supreme Court also found standing for an entity alleging damage from greenhouse gas emissions.
Mr. Collins responded to Mr. Pawa's arguments and knocked down plaintiffs' claim that black letter law established that balancing was not required. Mr. Collins pointed to comment e of section 821B of the Restatement (Second) which requires an assessment of reasonableness whether the allegation is an intentional, reckless or negligent nuisance. Further, the balancing required by plaintiffs' claims is "utterly without precedent." "But balancing is what courts do all the time," interjected Judge Pro. "Nothing on this scale has ever been remitted to a court," rejoined Mr. Collins. This is not a case about a discreet pollution site; it is a case of global dimensions and there is no traceability of the emitted carbon dioxide (as the plaintiffs conceded).
The Court was not so easily put off and brought up AEP, where the Second Circuit had permitted plaintiffs to proceed with their greenhouse gas liability claim, and the Supreme Court had not reversed. Mr. Collins had seen that softball coming: AEP is different because some of the plaintiffs were sovereigns, which was not the case here.
Mr. Collins closed with strong points on his clients' primary position: displacement of the federal common law applies to both injunctive and damages remedies. This was established in Middlesex County Sewerage Auth. v. Sea Clammers, 453 U.S. 1, 13 (1981). The reason is simple. When Congress crafted the regulatory framework establishing the Clean Air Act, which displaced injunctive remedies, see American Electric Power v. Connecticut, Congress did not provide for any compensatory relief to an aggrieved private party. Accordingly, a damages remedy is also displaced and the plaintiffs' claim is barred. As the Ninth Circuit had itself held in In re Exxon Valdez, 270 F.3d. 1215 (9th Cir. 2001): "a nuisance theory would enable a federal district judge to substitute a different balancing of interests from the one made by the agency to which Congress assigned the job".
In our view the Court's decision is not likely to be the final curtain. If it goes in favor of the plaintiffs, the defendants will certainly appeal. And if the defendants prevail, the state law claims (dismissed by the federal district court without prejudice) are likely to be refilled, particularly with the invitation set forth in by the Supreme Court in AEP: "None of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand."