The Ninth Circuit Court of Appeals dismissed a common law nuisance claim that alleged that greenhouse gas emissions created a public nuisance. The suit, Native Village of Kivalina v ExxonMobil Corp. (9th Cir. 2012), was brought by residents of a village near the Arctic Circle who were forced to abandon their homes because of rising sea level. Claiming that the rising sea level was caused by global warming, the villagers sued twenty-two oil and energy companies alleging common law nuisance.
The court affirmed the dismissal on the ground that Congress had, in the clean air act, displaced the common law in this area. The theory is that if the companies emitted greenhouse gasses pursuant to a clean air act permit, then a court could not use the common law to enjoin or provide a damages remedy for such emissions. Kivalina’s remedy would have to be through Congress. A concurring opinion raised an interesting question. Judge Pro issued a concurrung opinion raising the issue of whether the authorities relied on by the court, which were primarily suits seeking injunctive relief, were compelling in a case in which the plaintiff is seeking damages. The injunction cases reason, in part that if Congress says you can do something, a court cannot use common law principles to say you cannot. That does not necessarily imply, however, that a common law court could not provide damages for a party injured by the activity.
The decision reflects a trend in the courts to avoid the use of common law remedies in areas already addressed by Congress. The irony is that Congress needed to get involved in environmental issues because common law principles did not effectively deal with the issues. Now, however, plaintiffs are coming to court attempting to use common law principles to address these issues because, in their view, Congress has not effectively dealt with the issues.