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Ninth Circuit dismisses Alaska village claim over greenhouse emissions

The US Court of Appeals for the Ninth Circuit [official website] affirmed [opinion, PDF] on Friday the dismissal of the Alaskan village of Kivalina's nuisance claims against energy companies for greenhouse emissions it claimed contributed to global warming and threatened its existence. Kivalina brought suit against 22 energy corporations, attributing the destruction of its land to the effects of global warming, which it alleged partially results from emissions of greenhouse gases by the defendants. The US District Court for the Northern District of California [official website] had dismissed [opinion text] the claim on standing in 2009, stating that because it was a political question the courts could not intervene. Citing to the Supreme Court's ruling in American Electric Power Co. v. Connecticut [JURIST report], the Ninth Circuit ruled that:

[T]he Supreme Court has held that federal common law addressing domestic greenhouse gas emissions has been displaced by Congressional action. That determination displaces federal common law public nuisance actions seeking damages, as well as those actions seeking injunctive relief. The civil conspiracy claim falls with the substantive claim. Therefore, we affirm the judgment of the district court. ... [T]he solution to Kivalina's dire circumstance must rest in the hands of the legislative and executive branches of our government, not the federal common law.
As one of the 22 defendants, AES Corporation [official website] had expected its insurance company, Steadfast, to defend the suit under their liability coverage [JURIST report]. However, the Virginia Supreme Court [official website] ruled [opinion, PDF] in September 2011 that the effects of global warming [JURIST news archive] were not covered by a standard liability insurance policy because no single "accident" or "occurrence" had forced the suit, but rather intentional actions.

In Massachusetts v. EPA [Duke Law case backgrounder] the court found that the Environmental Protection Agency (EPA) [official website] had the authority to regulate greenhouse gas emissions under the Clean Air Act and its failure to set applicable standards without reason was no in accordance with law. Yet the EPA has experienced few victories recently. Last month, the US Court of Appeals for the District of Columbia Circuit [official website] ruled [JURIST report] that the EPA overstepped its authority under the Clean Air Act (CAA) [text, PDF] when it issued a regulation limiting power plants' emissions that cross state lines. A DC Circuit decision upholding the EPA's plan to add more ethanol to gasoline [JURIST report] marked a rare victory for the EPA. The US Court of Appeals for the Fifth Circuit [official website] ruled [JURIST report] that the EPA also overstepped its bounds when it rejected a Texas plan to issue air permits. In early August, the US District Court for the District of Columbia [official website] ruled [JURIST report] that the EPA violated several environmental statutes when it issued regulations on coal mining in the Appalachia region.

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