Opinion: Native Villagers’ Demand for Climate Justice Exposes The Limitations Of Federal Common Law

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BACKGROUND

Late in 2012, the United States Court of Appeals for the Ninth Circuit delivered its opinion in the case of Native Village of Kivalina v Exxonmobil Corporation {Kivalina)} A group of Inupiat native Alaskan villagers had sought compensation under the federal common law of public nuisance from a number of 'Energy Producers'2 for the effects of climate change on their community. The village of Kivalina is located on a long peninsula that runs parallel to mainland Alaska and is being inundated by the sea as a result of the gradual disappearance of the sea pack ice that has protected the village from the destructive effects of the ocean for hundreds of years. The US Army Corps of Engineers has concluded that the village cannot be saved and that the whole community must be relocated at a cost of between US$95 and US$400 million.3 The villagers sought compensation for the costs of relocating their village on the basis that the defendants are major emitters of the greenhouse gases (GHGs) said to be the root cause of climate change. The United States district court for the Northern District of California had previously dismissed the claim on the grounds that it was not justiciable under the political question doctrine and because the plaintiffs lacked Article III standing.4 The plaintiffs appealed to the United States Court of Appeals for the Ninth Circuit on both these questions. On 21 September 2012, their claim was dismissed5 on the basis that the Clean Air Act6 displaced claims for damages under the federal common law of public nuisance. This followed the Supreme Court decision in AEP v Connecticut,7 where the Supreme Court had ruled that injunctive relief in federal public nuisance was displaced by the Clean Air Act.8 Thus the possibility, left open in AEP, that claims for damages under public nuisance might still be available has now been eradicated.9

THE ENVIRONMENTAL JUSTICE MOVEMENT

In recent times there have been a number of attempts in the US federal district and appeal courts to use federal common law principles, and public nuisance in particular, to seek injunctive relief or damages from energy producers and oil companies for the contribution of their activities to climate change and its associated consequences.10 This has ignited a debate about the role of litigation in achieving what has become known as climate justice,' an offshoot of the environmental justice movement (EJM) which originated in the US in the 1980s.12

The EJM in the United States has long sought to use litigation as a means of achieving a more equitable distribution of environmental burdens; climate justice litigation is the latest manifestation of this effort. Initially the EJM concentrated on the racially disparate impact that many environmental decisions seemed to exhibit, and attempted to persuade the courts to engage the equal protection clause of the fourteenth amendment13 in order to achieve a more equitable distribution of environmental burdens that did not disproportionately affect people of colour. However, the Supreme Court decision in Village of Arlington Heights v Metropolitan Development Corporation^* largely put paid to these efforts by requiring evidence of intentional targeting of minority communities amounting to racial animus before it would invoke the equal protection clause in the service of environmental equity. In Bean v Southwestern Waste Management Corporation,*5 the first major environmental justice case to follow Arlington, the US District Court for the Southern District of Texas duly denied injunctive relief to a group of residents seeking to prevent the siting of a landfill near a predominantly Black school, on the basis that the level of statistical evidence supplied did not reach the level required by Arlington to prove intentional discrimination.16 The Fifth Circuit affirmed the decision some seven years later.17 Since then other constitutional challenges based on Title VI of the Civil Rights Act of 1964,'8 and the general rights protection offered by 42 USC §198319 have been successively closed off by the federal courts, resulting in increasing reliance on legislative and administrative challenges and, most recently, the common law. This shift away from constitutional remedies reflects the federal courts' reluctance to engage in questions of distributive justice couched in terms of race and has resulted in the EJM being forced to use alternative, race-neutral, approaches.20 This trend has coincided with increasing awareness of the local consequences of the effects of climate change following events such as the inundation of New Orleans by hurricane Katrina in 2005; as a result, the framework of the EJM s activities has been broadened to encompass climate change.21 Such events also prompted other stakeholders such as states, local government interests and NGOs to engage in strategic litigation to force government and government agencies into action, most famously in the case of Massachusetts v EPA.22 Here, the US Supreme Court held that the EPA was mandated by the Clean Air Act23 to regulate GHG sources, including mobile sources (contrary to the EPA's assertion), and that it should evaluate the health effects of such emissions. If they were found to endanger public health, the EPA was required to regulate automobile emissions accordingly.24 This was followed by the AEP case referred to above, where a number of tates and land trusts attempted to obtain injunctive relief from power producers using the federal common law of public nuisance.25 The use of federal common law is a controversial issue at the best of times - a matter that I return to below - so that the outcome of this case was followed with great interest. However, the plaintiffs failed on the basis that the requirements of the Clean Air Act for the EPA to regulate GHGs displaced the federal common law claim (though future common law claims under state law were specifically excluded from the scope of the judgment). It was adherence to the AEP decision that resulted in the dismissal of the Kivalina appeal in the Ninth Circuit.

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