Kivalina loses, climate change lawsuits will .... continue?

In Native Village of Kivalina v, ExxonMobil, the village of Kivalina sought damages against ExxonMobil and a 21 other oil companies and electricity generation companies for contributing to global climate change and causing the breakup of their village, which has become uninhabitable because of receding ice and softening permafrost. Apart from the usual tort claims like private and public nuisance, Kivalina alleged that the defendants conspired to mislead the public about climate change, in part by contributing to organizations that have demonstrably propagated misinformation about the causes of climate change. The Ninth Circuit Court of Appeals upheld a district court dismissal of Kivalina's claims on the grounds that their common law claims are displaced by the Clean Air Act, as held in AEP v. Connecticut 131 S. Ct. 2527 (2011). In a separate concurring opinion, district court judge Philip Pro also held that Kivalina lacked standing to sue.

Climate skeptics and energy companies may herald this as a sign that climate change lawsuits have peaked (at least those from plaintiffs suffering environmental harms from climate change, not necessarily regulated industries challenging regulation), but if I were their counsel, I would advise them to be less sanguine. At bottom, courts do not yet feel that they have the "traceability" of harm from defendants emissions to plaintiffs' harm. I have written myself that even an ideal plaintiff -- an Inuit community not unlike Kivalina -- and ideal defendants -- electricity generating firms, which comprise several of Kivalina's defendants -- would have a hard time winning a private or public nuisance lawsuit. This opinion bears out my original forecast. However, the common law will move forward as the evidence of climate change moves forward, and we can only expect the epidemiological evidence of traceability to improve. As far as the displacement holding that seems more fatal to these kinds of lawsuits, I also think that continued frustration with the Clean Air Act (that is my new prediction) will lead to a re-examination of whether the Clean Air Act truly precludes federal common law actions. There are also state common law actions potentially in play.

I also wrote in 2008 that climate change lawsuits are not really the solution. They are potentially a spur for meaningful legislation such as a carbon tax or cap-and-trade program, but climate change lawsuits like Kivalina are premised upon the falsehood that these energy companies are at the root cause of the problem of climate change. To the extent that they participated in a misinformation campaign, I agree. But the dangerous fiction that these lawsuits promote is that blame for climate change lies with these evil barons. They do not. The fault lies not in our energy companies, but in ourselves. That politicians are still afraid to even say "carbon tax" is evidence of our inherent selfishness and disregard for our own children and grandchildren.