The federal common law of public nuisance, age 74, of Erie, Pa., passed away peacefully with his family at his side on September 21. He is survived by two daughters, the Clean Air Act and the Clean Water Act, both of Washington, and many grandchildren living across the nation. The cause of death was the U.S. Court of Appeals for the Ninth Circuit’s decision in Native Village of Kivalina v. ExxonMobil Corp., No. 09-17490, 2012 U.S. App. Lexis 19870 (9th Cir. Sept. 21, 2012).
In that decision, a three-judge panel affirmed the dismissal of a suit seeking monetary damages for a remote Alaskan village, Kivalina, threatened by climate change. The suit sought to hold numerous energy, oil and utility companies liable for their greenhouse gas emissions, alleging that they worsened the effects of climate change and led to the severe erosion and rising ocean that threatens Kivalina. The Ninth Circuit could have affirmed the trial court dismissal on any number of grounds, including standing, political question or proximate cause, but chose to do so pursuant to displacement, a rarely utilized doctrine similar to pre-emption that is applicable only to claims under federal common law.
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