Native Village of Kivalina v. Exxonmobil Corporation

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIVE VILLAGE OF KIVALINA; 

CITY OF KIVALINA,

Plaintiffs-Appellants,

v.

EXXONMOBIL CORPORATION; BP

P.L.C.; BP AMERICA, INC.; BP

PRODUCTS NORTH AMERICA, INC.;

CHEVRON CORPORATION; CHEVRON

U.S.A., INC.; CONOCOPHILLIPS

COMPANY; ROYAL DUTCH SHELL

PLC; SHELL OIL COMPANY; No. 09-17490

PEABODY ENERGY CORPORATION;

THE AES CORPORATION; AMERICAN  D.C. No.

4:08-cv-01138-SBA

ELECTRIC POWER COMPANY, INC.;

AMERICAN ELECTRIC POWER OPINION

SERVICES CORPORATION; DUKE

ENERGY CORPORATION; DTE

ENERGY COMPANY; EDISON

INTERNATIONAL; MIDAMERICAN

ENERGY HOLDINGS COMPANY;

PINNACLE WEST CAPITAL

CORPORATION; THE SOUTHERN

COMPANY; DYNEGY HOLDINGS, INC.;

XCEL ENERGY, INC.; GENON

ENERGY, INC.,

Defendants-Appellees.



Appeal from the United States District Court

for the Northern District of California

Saundra B. Armstrong, District Judge, Presiding

11641

11642 NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL

Argued and Submitted

November 28, 2011—San Francisco, California

Filed September 21, 2012

Before: Sidney R. Thomas and Richard R. Clifton,

Circuit Judges, and Philip M. Pro, District Judge.*

Opinion by Judge Thomas;

Concurrence by Judge Pro

*The Honorable Philip M. Pro, District Judge for the U.S. District Court

for the District of Nevada, sitting by designation.

11644 NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL

COUNSEL

Matthew F. Pawa (argued), Law Offices of Matthew. F. Pawa

PC, Newton Centre, Massachusetts; Brent Newell, Center on

Race, Poverty and the Environment, San Francisco, Califor-

nia; Steve W. Berman, Babara Mahoney, Hagens Berman

Sobol Shapiro LLP, Seattle, Washington; Reed R. Kathrein,

Hagans Berman Sobol Shapiro LLP, Berkeley, California;

Gary E. Mason, Khushi Desai, The Mason Law Firm, Wash-

ington, D.C.; Heather Kendall-Miller, Native American

Rights Fund, Anchorage, Alaska; Dennis Reich, Reich & Bin-

stock, Houston, Texas; Christopher A. Seeger, Stephen A.

Weiss, James A. O’Brien, Seeger Weiss LLP, New York,

New York; Stephen D. Susman, H. Lee Godfrey, Eric J.

Mayer, Susman Godfrey LLP, Houston, Texas; Terrell W.

Oxford, Susman Godfrey LLP, Dallas, Texas; Marc M. Selt-

zer, Susman Godfrey, LLP, Los Angeles, California; Drew D.

Hansen, Susman Godfrey LLP, Seattle, Washington, for the

appellants-plaintiffs.

Jerome C. Roth, Scott W. Coyle, Munger, Tolles & Olson

LLP, San Francisco, California; Ronald L. Olson, Daniel P.

Collins, Munger, Tolles & Olson LLP, Los Angeles, Califor-

nia, for appellee-defendant Shell Oil Company.

NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL 11645

Jonathan D. Hacker, O’Melveny & Myers LLP, Washington,

DC; John F. Daum, O’Melveny & Myers, Los Angeles, Cali-

fornia, for appellee-defendant ExxonMobil Corporation.

Andrew B. Clubok, Jeffrey Bossert Clark, Susan E. Engel,

Joseph Cascio, Kirkland & Ellis LLP, Washington, DC, for

appellee-defendant ConocoPhillips Company.

Robert Meaows, Tracie J. Renfroe, Jonathan L. Marsh, King

& Spalding LLP, Houston, Texas; Lisa Kobialka, King &

Spalding LLP, Redwood City, California, for appellees-

defendants Chevron Corporation and Chevron U.S.A., Inc.

Matthew Heartney, Arnold & Porter LLP, Los Angeles, Cali-

fornia; Philip Curtis, Arnold & Porter LLP, New York, New

York, for appellees-defendants BP America, Inc., and BP

Products North America, Inc.

Kevin P. O’Brien, Crowell & Morning LLP, San Francisco,

California; Kathleen Taylor Sooy, Scott L. Winkelman, Tracy

A. Roman, Crowell & Morning LLP, Washington, DC, for

appellee-defendant Peabody Energy Corporation.

William A. Norris, Rex Heinke, Richard K. Welsh, Akin

Gump Strauss Hauer & Feld LLP, Los Angeles, California;

Paul E. Gutermann, Akin Gump Strauss Hauer & Feld LLP,

Washington, DC, for appellee-defendant The AES Corpora-

tion.

Peter D. Keisler, David T. Buente, Jr., Quin M. Sorenson,

Sidley Austin LLP, Washington, DC; Samuel R. Miller, Sid-

ley Austin LLP, San Francisco, California, for defendants-

appellees American Electric Power Company; American

Electric Power Service Corporation; and Duke Energy Corpo-

ration.

Shawn Patrick Regan, Hunton & Williams LLP, New York,

New York; F. William Brownell, Normal W. Fichtorn, Alison

11646 NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL

D. Wood, Hunton & Williams LLP, Washington, D.C.;

Belynda B. Reck, Hunton & Williams LLP, Los Angeles,

California, for appellees-defendants DTE Energy Company;

Edison International; MidAmerican Energy Holdings Com-

pany; Pinnacle West Capital Corp; Southern Company.

Thomas A. Rector, Jones Day, San Francisco, California;

Thomas E. Fennell, Michael L. Rice, Jones Day, Dallas,

Texas; Kevin P. Holewinski, Jones Day, Washington, D.C.,

for appellee-defendant Xcel Energy, Inc.

Alexandra Walsh, Jeremy Levin, Baker Botts LLP, Washing-

ton, D.C., for appellee-defendant Dynergy Holdings, Inc;

Reliant Energy, Inc.

Richard O. Faulk, Gardere Wynne Sewell LLP, Houston,

Texas, for amici American Chemistry Council, Public Nui-

sance Fairness Coalition, American Coatings Association, and

Property Casualty Insurers Association of America.

Sean H. Donahue, Sean H. Donahue Law Office, Washington,

DC; Stephen F. Hinchman, West Bath, Maine, for amicus

Solar Industry.

Victor E. Schwartz, Phil Goldberg, Christopher E. Appel,

Shook, Hardy, & Bacon, LLP, Washington, DC; James A.

Henderson, Jr., Frank B. Ingersoll, Cornell Law School, Ith-

aca, New York, for amici National Association of Manufac-

turers, National Federation of Independent Small Business

Legal Center, and American Tort Reform Association.

Tristan L. Duncan, William F. Northrip, Shook, Hardy &

Bacon LLP, Kansas City, Missouri; Richard H. Fallon, Jr.

Cambridge, Massachusetts, for amicus Natso, Inc.

Ellen J. Gleberman, The Association of International Auto-

mobile Manufacturers, Inc., Arlington, Virginia; Raymond B.

Ludwiszewski, Charles H. Haake, Gibson, Dunn & Crutcher

NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL 11647

LLP, Washington, D.C., for amicus The Association of Inter-

national Automobile Manufacturers.

Earl L. Hagstrom, Frederick D. Baker, Kelly Savage Day,

Sedgwick, Detert, Moran & Arnold LLP, San Francisco, Cali-

fornia, for amici Congressman Lamar Smith and Congress-

man F. James Sensenbrenner, Jr.

John C. Eastman, Center for Constitutional Jurisprudence,

Chapman University School of Law, Orange, California;

Anthony T. Caso, Law Office of Anthony T. Caso, Sacra-

mento, California, for amicus Center for Constitutional Juris-

prudence.

Daniel J. Popeo, Cory L. Andrews, Washington Legal Foun-

dation, Washington, D.C.; Douglas M. Halsey, David P.

Draigh, White & Case LLP, Miami, Florida, for amicus

Washington Legal Foundation.

R.S. Radford, Damien M. Schiff, Pacific Legal Foundation,

Sacramento, California, for amicus Pacific Legal Foundation.

Robin C. Conrad, Amar D. Sarwal, National Chamber Litiga-

tion Center, Washington, D.C.; Gregory G. Garre, Richard P.

Bress, Gabriel K. Bell, Latham & Watkins LLP, Washington,

DC, for amicus The Chamber of Commerce of the United

States of America.

OPINION

THOMAS, Circuit Judge:

The Native Village of Kivalina and the City of Kivalina

(collectively “Kivalina”) appeal the district court’s dismissal

of their action for damages against multiple oil, energy, and

utility companies (collectively “Energy Producers”).1 Kivalina

1

Defendants are: (1) ExxonMobil Corporation; (2) BP P.L.C.; (3) BP

America, Inc.; (4) BP Products North America, Inc.; (5) Chevron Corpora-

11648 NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL

alleges that massive greenhouse gas emissions emitted by the

Energy Producers have resulted in global warming, which, in

turn, has severely eroded the land where the City of Kivalina

sits and threatens it with imminent destruction. Kivalina seeks

damages under a federal common law claim of public nui-

sance.

The question before us is whether the Clean Air Act, and

the Environmental Protection Agency (“EPA”) action that the

Act authorizes, displaces Kivalina’s claims. We hold that it

does.

I

The City of Kivalina sits on the tip of a six-mile barrier reef

on the northwest coast of Alaska, approximately seventy

miles north of the Arctic Circle. The city, which was incorpo-

rated as a unified municipality under Alaska state law in

1969, has long been home to members of the Village of

Kivalina, a self-governing, federally recognized tribe of

Inupiat Native Alaskans. The City of Kivalina has a popula-

tion of approximately four hundred residents, ninety-seven

percent of whom are Alaska Natives.

Kivalina’s survival has been threatened by erosion resulting

from wave action and sea storms for several decades. See City

of Kivalina, Alaska: Local Hazards Mitigation Plan, Resolu-

tion 07-11 (Nov. 9, 2007). The villagers of Kivalina depend

on the sea ice that forms on their coastline in the fall, winter,

tion; (6) Chevron U.S.A., Inc.; (7) Conocophillips Company; (8) Royal

Dutch Shell PLC; (9) Shell Oil Company; (10) Peabody Energy Corpora-

tion; (11) The AES Corporation; (12) American Electric Power Company,

Inc.; (13) American Electric Power Services Corporation; (14) Duke

Energy Corporation; (15) DTE Energy Company; (16) Edison Interna-

tional; (17) Midamerican Energy Holdings Company; (18) Pinnacle West

Capital Corporation; (19) The Southern Company; (20) Dynegy Holdings,

Inc.; (21) Xcel Energy, Inc.; (22) Genon Energy, Inc.

NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL 11649

and spring each year to shield them from powerful coastal

storms. But in recent years, the sea ice has formed later in the

year, attached later than usual, broken up earlier than

expected, and has been thinner and less extensive in nature.

As a result, Kivalina has been heavily impacted by storm

waves and surges that are destroying the land where it sits.

Massive erosion and the possibility of future storms threaten

buildings and critical infrastructure in the city with imminent

devastation. If the village is not relocated, it may soon cease

to exist.2

Kivalina attributes the impending destruction of its land to

the effects of global warming, which it alleges results in part

from emissions of large quantities of greenhouse gases by the

Energy Producers. Kivalina describes global warming as

occurring through the build-up of carbon dioxide and methane

(commonly referred to as “greenhouse gases”) that trap atmo-

spheric heat and thereby increase the temperature of the

planet. As the planet heats, the oceans become less adept at

removing carbon dioxide from the atmosphere. The increase

in surface temperature also causes seawater to expand.

Finally, sea levels rise due to elevated temperatures on Earth,

which cause the melting of ice caps and glaciers. Kivalina

contends that these events are destroying its land by melting

the arctic sea ice that formerly protected the village from win-

ter storms.

Kivalina filed this action against the Energy Producers,

both individually and collectively, in District Court for the

Northern District of California, alleging that the Energy Pro-

ducers, as substantial contributors to global warming, are

responsible for its injuries. Kivalina argued that the Energy

2

“[I]t is believed that the right combination of storm events could flood

the entire village at any time. . . . Remaining on the island . . . is no longer

a viable option for the community.” U.S. Gov’t Accountability Office,

GAO 04-142, Alaska Native Villages: Most Are Affected by Flooding and

Erosion, but Few Qualify for Federal Assistance 30, 32 (2003).

11650 NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL

Producers’ emissions of carbon dioxide and other greenhouse

gases, by contributing to global warming, constitute a sub-

stantial and unreasonable interference with public rights,

including the rights to use and enjoy public and private prop-

erty in Kivalina. Kivalina’s complaint also charged the

Energy Producers with acting in concert to create, contribute

to, and maintain global warming and with conspiring to mis-

lead the public about the science of global warming.

The Energy Producers moved to dismiss the action for lack

of subject-matter jurisdiction, pursuant to Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6). Native Vill. of Kivalina

v. Exxonmobile Corp., 663 F. Supp. 2d 863, 868 (N.D. Cal.

2009). They argued that Kivalina’s allegations raise inher-

ently nonjusticiable political questions because to adjudicate

its claims, the court would have to determine the point at

which greenhouse gas emissions become excessive without

guidance from the political branches. They also asserted that

Kivalina lacked Article III standing to raise its claims because

Kivalina alleged no facts showing that its injuries are “fairly

traceable” to the actions of the Energy Producers.

The district court held that the political question doctrine

precluded judicial consideration of Kivalina’s federal public

nuisance claim. Id. at 876-77. The court found that there was

insufficient guidance as to the principles or standards that

should be employed to resolve the claims at issue. Id. at 876.

The court also determined that resolution of Kivalina’s nui-

sance claim would require determining what would have been

an acceptable limit on the level of greenhouse gases emitted

by the Energy Producers and who should bear the cost of

global warming. Id. Both of these issues, the court concluded,

were matters more appropriately left for determination by the

executive or legislative branch in the first instance. Id. at 877.

The district court also held that Kivalina lacked standing

under Article III to bring a public nuisance suit. Id. at 880-82.

The court found that Kivalina could not demonstrate either a

NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL 11651

“substantial likelihood” that defendants’ conduct caused

plaintiff ’s injury nor that the “seed” of its injury could be

traced to any of the Energy Producers. Id. at 878-81. The

court also concluded that, given the remoteness of its injury

claim, Kivalina could not establish that it was within suffi-

cient geographic proximity to the Energy Producers’ alleged

“excessive” discharge of greenhouse cases to infer causation.

Id. at 881-82. The court declined to exercise supplemental

jurisdiction over the state law claims. Id. at 882-83.

We review a district court’s dismissal for lack of subject-

matter jurisdiction de novo. Corrie v. Caterpillar, Inc., 503

F.3d 974, 979 (9th Cir. 2007). The dismissal may be affirmed

“on any basis fairly supported by the record.” Id. at 979. For

the purpose of such review, this Court “must accept as true

the factual allegations in the complaint.” Nurse v. United

States, 226 F.3d 996, 1000 (9th Cir. 2000); see also United

States v. Gaubert, 499 U.S. 315, 327 (1991).

II

A

In contending that greenhouse gases released by the Energy

Producers cross state lines and thereby contribute to the

global warming that threatens the continued existence of its

village, Kivalina seeks to invoke the federal common law of

public nuisance. We begin, as the Supreme Court recently did

in American Electric Power Co., Inc. v. Connecticut (“AEP”),

131 S. Ct. 2527, 2535 (2011), by addressing first the threshold

questions of whether such a theory is viable under federal

common law in the first instance and, if so, whether any legis-

lative action has displaced it.

Despite the announced extinction of federal general com-

mon law in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78

(1938), the Supreme Court has articulated a “keener under-

standing” of the actual contours of federal common law. AEP,

11652 NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL

131 S. Ct. at 2535. As Justice Ginsburg explained, “[t]he

‘new’ federal common law addresses ‘subjects within the

national legislative power where Congress has so directed’ or

where the basic scheme of the Constitution so demands.” Id.

(quoting Friendly, In Praise of Erie–And of the New Federal

Common Law, 39 N.Y.U. L. Rev 383, 408 n.119, 421-22

(1964)). Sometimes, Congress acts directly. For example,

Congress, in adopting the Employee Retirement Income

Security Act (“ERISA”), expected federal courts to develop

“a federal common law of rights and obligations under

ERISA-regulated plans.” Pilot Life Ins. Co. v. Dedeaux, 481

U.S. 41, 56 (1987). More often, federal common law develops

when courts must consider federal questions that are not

answered by statutes.

[1] Post-Erie, federal common law includes the general

subject of environmental law and specifically includes ambi-

ent or interstate air and water pollution. AEP, 131 S. Ct. at

2535; see also Illinois v. City of Milwaukee (“Milwaukee I”),

406 U.S. 91, 103 (1972) (“When we deal with air and water

in their ambient or interstate aspects, there is a federal com-

mon law.”) (footnote omitted); Int’l Paper Co. v. Ouellette,

479 U.S. 481, 492 (1987) (“[T]he control of interstate pollu-

tion is primarily a matter of federal law.”).

[2] Thus, federal common law can apply to transboundary

pollution suits. Most often, as in this case, those suits are

founded on a theory of public nuisance. Under federal com-

mon law, a public nuisance is defined as an “unreasonable

interference with a right common to the general public.”

Restatement (Second) of Torts § 821B(1) (1979). A success-

ful public nuisance claim generally requires proof that a

defendant’s activity unreasonably interfered with the use or

enjoyment of a public right and thereby caused the public-at-

large substantial and widespread harm. See Missouri v. Illi-

nois, 200 U.S. 496, 521 (1906) (stating that public nuisance

actions “should be of serious magnitude, clearly and fully

proved”); Connecticut v. Am. Elec. Power Co., Inc., 582 F.3d

NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL 11653

309, 357 (2d Cir. 2009), rev’d 131 S. Ct. 2527 (2011) (“The

touchstone of a common law public nuisance action is that the

harm is widespread, unreasonably interfering with a right

common to the general public.”).

B

[3] However, the right to assert a federal common law pub-

lic nuisance claim has limits. Claims can be brought under

federal common law for public nuisance only when the courts

are “compelled to consider federal questions which cannot be

answered from federal statutes alone.” City of Milwaukee v.

Illinois (“Milwaukee II”), 451 U.S. 304, 314 (1981) (citations

and internal quotations omitted). On the other hand, when

federal statutes directly answer the federal question, federal

common law does not provide a remedy because legislative

action has displaced the common law. Federal common law

is subject to the paramount authority of Congress. New Jersey

v. New York, 283 U.S. 336, 348 (1931).

If Congress has addressed a federal issue by statute, then

there is no gap for federal common law to fill. Milwaukee II,

451 U.S. at 313-14. “Federal common law is used as a ‘neces-

sary expedient’ when Congress has not ‘spoken to a particular

issue.’ ” Cnty. of Oneida, N.Y. v. Oneida Indian Nation of

N.Y. State, 470 U.S. 226, 236-37 (1985) (quoting Milwaukee

II).

“The test for whether congressional legislation excludes the

declaration of federal common law is simply whether the stat-

ute speak[s] directly to [the] question at issue.” AEP, 131 S.

Ct. at 2537 (alterations in original) (internal citation and quo-

tation marks omitted). Although plainly stated, application of

the test can prove complicated. The existence of laws gener-

ally applicable to the question is not sufficient; the applicabil-

ity of displacement is an issue-specific inquiry. For example,

in Milwaukee I, the Supreme Court considered multiple stat-

utes potentially affecting the federal question. 406 U.S. at

11654 NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL

101-03. Concluding that no statute directly addressed the

question, the Supreme Court held that the federal common

law public nuisance action had not been displaced in that

case. Id. at 107. The salient question is “whether Congress has

provided a sufficient legislative solution to the particular

[issue] to warrant a conclusion that [the] legislation has occu-

pied the field to the exclusion of federal common law.” Mich.

v. U.S. Army Corps of Eng’rs, 667 F.3d 765, 777 (7th Cir.

2011). Put more plainly, “how much congressional action is

enough?” Id.

C

[4] We need not engage in that complex issue and fact-

specific analysis in this case, because we have direct Supreme

Court guidance. The Supreme Court has already determined

that Congress has directly addressed the issue of domestic

greenhouse gas emissions from stationary sources and has

therefore displaced federal common law. AEP, 131 S. Ct. at

2530, 2537.

[5] In AEP, eight states, the city of New York, and three

private land trusts brought a public nuisance action against

“the five largest emitters of carbon dioxide in the United

States.” Id. at 2533-34. The AEP plaintiffs alleged that “de-

fendants’ carbon-dioxide emissions created a ‘substantial and

unreasonable interference with public rights,’ in violation of

the federal common law of interstate nuisance,” and sought

injunctive relief through a court-ordered imposition of emis-

sions caps. Id. at 2534. Concluding that the Clean Air Act

already “provides a means to seek limits on emissions of car-

bon dioxide from domestic power plants,” the Supreme Court

in AEP held “that the Clean Air Act and the EPA actions it

authorizes displace any federal common law right to seek

abatement” of such emissions. Id. at 2537-38.

[6] This case presents the question in a slightly different

context. Kivalina does not seek abatement of emissions;

NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL 11655

rather, Kivalina seeks damages for harm caused by past emis-

sions. However, the Supreme Court has instructed that the

type of remedy asserted is not relevant to the applicability of

the doctrine of displacement. In Exxon Shipping Co. v. Baker,

554 U.S. 471 (2008), Exxon asserted that the Clean Water Act

preempted the award of maritime punitive damages. Id. at

484. The Supreme Court disagreed, noting that it had “re-

jected similar attempts to sever remedies from their causes of

action.” Id. at 489 (citing Silkwood v. Kerr-McGee Corp., 464

U.S. 238, 255-56 (1993)). In Middlesex County Sewerage

Authority v. National Sea Clammers Ass’n., 453 U.S. 1, 4

(1981), the Supreme Court considered a public nuisance claim

of damage to fishing grounds caused by discharges and ocean

dumping of sewage. The Court held that the cause of action

was displaced, including the damage remedy. Id. at 21-22.

Thus, under current Supreme Court jurisprudence, if a cause

of action is displaced, displacement is extended to all reme-

dies.

[7] Certainly, the lack of a federal remedy may be a factor

to be considered in determining whether Congress has dis-

placed federal common law. Milwaukee I, 406 U.S. at 103.

But if the federal common law cause of action has been dis-

placed by legislation, that means that “the field has been made

the subject of comprehensive legislation” by Congress. Mil-

waukee II, 451 U.S. at 314, 325. When Congress has acted to

occupy the entire field, that action displaces any previously

available federal common law action. Id. Under Exxon and

Middlesex, displacement of a federal common law right of

action means displacement of remedies. Thus, AEP extin-

guished Kivalina’s federal common law public nuisance dam-

age action, along with the federal common law public

nuisance abatement actions.

The Supreme Court could, of course, modify the

Exxon/Middlesex approach to displacement, and will doubt-

less have the opportunity to do so. But those holdings are con-

sistent with the underlying theory of displacement and causes

11656 NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL

of action. Judicial power can afford no remedy unless a right

that is subject to that power is present. If a federal common

law cause of action has been extinguished by Congressional

displacement, it would be incongruous to allow it to be

revived in another form.

The fact that the damage occurred before the EPA acted to

establish greenhouse gas standards does not alter the analysis.

The doctrine of displacement is an issue of separation of pow-

ers between the judicial and legislative branches, not the judi-

cial and executive branches. Michigan, 667 F.3d at 777.

When the Supreme Court concluded that Congress had acted

to empower the EPA to regulate greenhouse gas emissions,

Massachusetts v. EPA, 549 U.S. 497, 528-29 (2007), it was a

determination that Congress had “spoken directly” to the issue

by legislation. Congressional action, not executive action, is

the touchstone of displacement analysis. See AEP, 131 S. Ct.

at 2537.

Nor does the Supreme Court’s displacement determination

pose retroactivity problems. The Supreme Court confronted

this theory in the Milwaukee cases, holding in Milwaukee II

that amendments to the Clean Water Act, passed after the

decision in Milwaukee I, displaced the previously recognized

common law nuisance claim because Congress had now “oc-

cupied the field through the establishment of a comprehensive

regulatory program supervised by an expert administrative

agency.” Milwaukee II, 451 U.S. at 316. “[W]hen Congress

addresses a question previously governed by a decision rested

on federal common law the need for such an unusual exercise

of lawmaking by federal courts disappears.” Id. at 314.

Kivalina concedes that its civil conspiracy claim is dependent

upon the success of the substantive claim, so it falls as well.

III

[8] In sum, the Supreme Court has held that federal com-

mon law addressing domestic greenhouse gas emissions has

NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL 11657

been displaced by Congressional action. That determination

displaces federal common law public nuisance actions seek-

ing 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.

We need not, and do not, reach any other issue urged by the

parties.

Our conclusion obviously does not aid Kivalina, which

itself is being displaced by the rising sea. But the solution to

Kivalina’s dire circumstance must rest in the hands of the leg-

islative and executive branches of our government, not the

federal common law.

AFFIRMED.

PRO, District Judge, concurring:

The Native Village of Kivalina and the City of Kivalina

(together “Kivalina”) appeal the district court’s dismissal of

their federal common law public nuisance claim for damages

against Appellees, who are oil, energy, and utility companies.

In support of their federal common law nuisance claim,

Kivalina alleges Appellees emit massive amounts of green-

house gases that contribute to global warming which, in turn,

has severely eroded the land where the City of Kivalina sits

and threatens it with imminent destruction. Kivalina also

brought conspiracy and concert of action claims which are

dependent on their federal common law nuisance claim. Addi-

tionally, Kivalina brought a state law nuisance claim in the

alternative to their federal common law claim. The district

court dismissed the state law nuisance claim without prejudice

to refiling in state court, and no one appeals that decision.

Consequently, the question before us is whether Kivalina

states a viable federal common law public nuisance claim for

damages.

11658 NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL

The majority opinion holds that the Clean Air Act (“CAA”)

and the Environmental Protection Agency (“EPA”) action the

Act authorizes displace Kivalina’s claims. I write separately

to address what I view as tension in Supreme Court authority

on whether displacement of a claim for injunctive relief nec-

essarily calls for displacement of a damages claim, and to

more fully explain why I concur in the majority opinion’s ulti-

mate conclusion. I also write separately to express my view

that Kivalina lacks standing.

I.

A.

“[F]ederal common law addresses subjects within national

legislative power where Congress has so directed or where the

basic scheme of the Constitution so demands.” Am. Elec.

Power Co., Inc. v. Connecticut (“AEP”), 131 S. Ct. 2527,

2535 (2011) (internal quotation marks and citation omitted).

Among the subjects which may call for application of federal

common law is environmental protection, particularly issues

involving “air and water in their ambient or interstate

aspects.” Id. (citation omitted).

However, once Congress addresses a question previously

answered by resort to federal common law, the federal com-

mon law is displaced. Id. at 2537. A federal statute displaces

federal common law whenever a “legislative scheme [speaks]

directly to a question.” City of Milwaukee v. Illinois

(“Milwaukee II”), 451 U.S. 304, 315 (1981). To determine

whether a legislative enactment directly speaks to the question

at issue, the reviewing court must “assess[ ] the scope of the

legislation and whether the scheme established by Congress

addresses the problem formerly governed by federal common

law.” Id. at 315 n.8. This analysis begins with the assumption

that Congress, not the federal courts, sets out the “appropriate

standards to be applied as a matter of federal law.” Id. at 317.

NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL 11659

The law of federal displacement is easily stated, but best

understood by examination of its application through a series

of Supreme Court cases beginning with Illinois v. City of Mil-

waukee (“Milwaukee I”), 406 U.S. 91 (1972). In Milwaukee

I, the State of Illinois brought a federal common law nuisance

abatement suit under the Supreme Court’s original jurisdic-

tion against four cities and two sewage commissions located

in Wisconsin, alleging the defendants were polluting Lake

Michigan. 406 U.S. at 93. After determining it had jurisdic-

tion over the action, the Supreme Court evaluated federal stat-

utory law governing interstate water pollution. Id. at 101-03.

Specifically, the Supreme Court noted that the Rivers and

Harbors Act of March 3, 1899 granted the Army Corps of

Engineers some power to oversee industrial pollution, the

Federal Water Pollution Control Act “tighten[ed] control over

discharges into navigable waters so as not to lower applicable

water quality standards,” the National Environmental Policy

Act of 1969 directed federal governmental agencies to evalu-

ate environmental issues in agency decision making, and the

Fish and Wildlife Act of 1956 and Fish and Wildlife Coordi-

nation Act reflected Congress’s “increasing concern with the

quality of the aquatic environment as it affects the conserva-

tion and safeguarding of fish and wildlife resources.” Id. at

101-02.

The Supreme Court gave special attention to the Federal

Water Pollution Control Act (“FWPCA”), which provided

that while the primary responsibility for preventing and con-

trolling water pollution lay with the States, “federal, not state,

law . . . in the end controls the pollution of interstate or navi-

gable waters.” Id. at 102. The FWPCA included procedures

for abatement of pollution if a State failed to act, including a

potential suit by the Attorney General. Id. at 102-03. The

Supreme Court nevertheless found that none of the identified

enactments displaced Illinois’s federal common law public

nuisance claim, in part because the FWPCA specifically pro-

vided that there was no intent to displace state or interstate

actions to abate water pollution with federal enforcement

11660 NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL

actions. Id. at 104. The Supreme Court nevertheless declined

to hear the case in its original jurisdiction, instead directing

Illinois to bring the action in federal district court. Id. at 108.

In Milwaukee I, the Supreme Court acknowledged that “[i]t

may happen that new federal laws and new federal regulations

may in time pre-empt the field of federal common law of nui-

sance.” Id. at 107. This prediction was realized in Milwaukee

II. Following the Supreme Court’s suggestion in Milwaukee

I, Illinois re-filed its federal common law nuisance abatement

suit in federal district court. Milwaukee II, 451 U.S. at 310.

Congress thereafter enacted the Federal Water Pollution Con-

trol Act Amendments of 1972, also known as the Clean Water

Act (“CWA”). Id. Under the amendments, it was “illegal for

anyone to discharge pollutants into the Nation’s waters except

pursuant to a permit.” Id. at 310-11 (citing 33 U.S.C. §§ 1311,

1342). The EPA was charged with administering the Act, and

to the extent the EPA set effluent limitations on any particular

pollutant, those limitations were incorporated into any permit.

Id. at 311. The defendants operated their sewer systems under

permits obtained from the Wisconsin state agency which was

granted permitting authority under EPA’s supervision. Id. The

defendants did not “fully comply” with their permits’ require-

ments, however, and the state permitting agency brought an

enforcement action in state court. Id. The state court entered

a judgment setting effluent limitations and requiring construc-

tion of sewage overflow controls. Id.

In the meantime, the State of Illinois continued to pursue

its federal common law nuisance abatement action in federal

court. Id. Illinois won at the trial level, and obtained injunc-

tive relief ordering construction of facilities to eliminate

sewer overflows and to achieve specified limits on effluents.

Id. “Both the aspects of the decision concerning overflows

and concerning effluent limitations . . . went considerably

beyond the terms of [the defendants’] previously issued per-

mits and the enforcement order of the state court.” Id. at 312.

NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL 11661

On appeal, the Supreme Court held that the CWA displaced

Illinois’s federal common law public nuisance abatement

action because Congress had “occupied the field through the

establishment of a comprehensive regulatory program super-

vised by an expert administrative agency.” Id. at 317. Specifi-

cally, the Supreme Court found the CWA established “an all-

encompassing program of water pollution regulation. Every

point source discharge is prohibited unless covered by a per-

mit, which directly subjects the discharger to the administra-

tive apparatus established by Congress to achieve its goals.”

Id. at 318 (footnote omitted). This comprehensive treatment

of water pollution left “no room for courts to attempt to

improve on that program with federal common law.” Id. at

319.

The Supreme Court did not rely only on the comprehensive

nature of the regulatory scheme. It evaluated the particular

nuisance abatement claims brought by Illinois to determine

whether Congress spoke directly to the particular question at

issue. With respect to the requested relief for effluent limita-

tions, the Supreme Court noted that the EPA had set effluent

limitations and that the defendants’ permits incorporated

those limitations. Id. at 319-20. Consequently, there was “no

question” that Congress had addressed the problem of effluent

limitations and therefore there was “no basis for a federal

court to impose more stringent limitations than those imposed

under the regulatory regime by reference to federal common

law.” Id. at 320. The Court reached a similar conclusion with

respect to the requested relief for construction of controls for

overflows because overflows were nothing more than point

source discharges fully covered by the permitting process

under the Act. Id. at 320-21. Accordingly, there was “no

‘interstice’ here to be filled by federal common law.” Id. at

323. Moreover, the Supreme Court noted that one reason fed-

eral common law was needed in Milwaukee I was the lack of

forum for Illinois to protect its rights, but this problem had

been resolved through the CWA’s scheme, which allowed

11662 NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL

affected States the opportunity to participate in the permitting

process. Id. at 325-26.

Finally, the Supreme Court rejected the argument that lan-

guage in the CWA’s citizen-suit provision preserved a federal

common law remedy. Id. at 328-29. Subsection 505(e) of the

CWA provided:

Nothing in this section shall restrict any right which

any person (or class of persons) may have under any

statute or common law to seek enforcement of any

effluent standard or limitation or to seek any other

relief (including relief against the Administrator or a

State agency).

Id. at 328 (emphasis omitted). The Supreme Court concluded

this did not preserve the federal common law nuisance abate-

ment claim because the language meant only that the specific

subsection providing for a citizen suit does not revoke other

remedies, but it did not mean that “the Act as a whole does

not supplant formerly available federal common-law actions.”

Id. at 328-29.

Neither Milwaukee I nor Milwaukee II involved damages

claims. Both were for abatement of a nuisance and sought

injunctive relief. However, the dissent in Milwaukee II argued

that legislative history indicated Congress did not intend for

the CWA to preclude actions for damages even if the alleged

polluter was in compliance with regulatory standards under

the Act. Id. at 343, 346 n.21.

The majority in Milwaukee II did not comment on the

availability of a federal common law nuisance claim for dam-

ages under the CWA until it decided Middlesex County Sew-

erage Authority v. National Sea Clammers Association, 453

U.S. 1 (1981), approximately two months later. In Middlesex,

an organization whose members harvested fish and an indi-

vidual member of that organization brought suit in federal dis-

NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL 11663

trict court against various governmental agencies and officials

in New York, New Jersey, and the United States Government.

453 U.S. at 4. The plaintiffs alleged that waste materials were

being discharged into interstate waterways which were pollut-

ing the Atlantic Ocean, resulting in a massive algae growth

which negatively affected fishing and related industries in the

Atlantic. Id. at 4-5. The plaintiffs brought statutory claims

under the FWPCA, the Marine Protection, Research, and

Sanctuaries Act of 1972 (“MPRSA”), the National Environ-

mental Policy Act of 1969, state law environmental statutes,

and the Federal Tort Claims Act. Id. at 5 n.6. The plaintiffs

also brought claims under various provisions of the United

States Constitution, federal common law, and state tort law.

Id. The plaintiffs sought injunctive relief, declaratory relief,

compensatory damages, and punitive damages. Id. at 5.

The Supreme Court held that it need not decide whether

private parties such as the plaintiffs in Middlesex could bring

a federal common law nuisance claim for damages because

the FWPCA displaced the federal common law of nuisance in

the area of water pollution as the Court held in Milwaukee II,

and the MPRSA likewise displaced federal common law with

respect to ocean dumping. Id. at 21-22. The dissent in Middle-

sex noted the apparent conflict between this result and legisla-

tive history which suggested that Congress intended that a

common law action for damages caused by pollution would

not be barred even where the defendant had complied with the

FWPCA’s requirements. Id. at 31 & n.15. Middlesex thus

holds that where a federal common law nuisance claim for

injunctive relief is displaced, a federal common law nuisance

claim for damages claim likewise is displaced.

However, the Supreme Court’s ruling in Exxon Shipping

Co. v. Baker, 554 U.S. 471 (2008), appears to be a departure

from Middlesex. In Exxon, various classes of plaintiffs

brought federal maritime common law claims seeking com-

pensatory damages for injuries arising out of the Exxon

Valdez oil tanker spill off the Alaskan coast. 554 U.S. at 475-

11664 NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL

76, 479. Additionally, a subclass of plaintiffs sought punitive

damages under federal maritime common law. Id. at 479. The

defendants stipulated to negligence and liability for compen-

satory damages. Id. However, the parties disputed whether the

defendants were liable for punitive damages. Id. at 479-80. A

jury found the defendants liable for $5 billion in punitive

damages. Id. at 481.

On appeal, the Supreme Court considered whether the

CWA displaced the availability of punitive damages under

federal maritime common law. Id. at 488-89. The Supreme

Court rejected the defendants’ argument that the CWA’s pen-

alties for water pollution preempted common law punitive

damages remedies available under maritime law. Id. Title 33

U.S.C. § 1321(o) specifically preserved damages claims

“under any provision of law” for anyone harmed by a dis-

charge of oil or other hazardous substance as against any

owner or operator of a vessel, although it did not specify the

source of law for any such damages claim, federal or state. Id.

at 488. The Supreme Court rejected the argument that “any

tort action predicated on an oil spill is preempted unless

§ 1321 expressly preserves it”—a position which the defen-

dants did not attempt to defend—because the Court found it

“too hard to conclude that a statute expressly geared to pro-

tecting ‘water,’ ‘shorelines,’ and ‘natural resources’ was

intended to eliminate sub silentio oil companies’ common law

duties to refrain from injuring the bodies and livelihoods of

private individuals.” Id. at 488-89.

The Court also rejected the defendants’ argument that

although the CWA did not displace compensatory damages,

it displaced punitive damages for economic loss. Id. The

Supreme Court stated that “nothing in the statutory text points

to fragmenting the recovery scheme this way, and we have

rejected similar attempts to sever remedies from their causes

of action.” Id. at 489 (citing Silkwood v. Kerr–McGee Corp.,

464 U.S. 238, 255-56 (1984)). The Supreme Court saw “no

clear indication of congressional intent to occupy the entire

NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL 11665

field of pollution remedies,” and allowing punitive damages

for private harms would not have “any frustrating effect on

the CWA remedial scheme, which would point to preemp-

tion.” Id.

In reaching this conclusion, the Supreme Court specifically

distinguished Middlesex and Milwaukee II on the basis that

the plaintiffs’ common law nuisance claims in those two cases

“amounted to arguments for effluent-discharge standards dif-

ferent from those provided by the CWA. Here, [the plain-

tiffs’] private claims for economic injury do not threaten

similar interference with federal regulatory goals with respect

to ‘water,’ ‘shorelines,’ or ‘natural resources.’ ” Id. at 489 n.7.

While Exxon stated that the Court has rejected “attempts to

sever remedies from their causes of action,” id. at 489, Exxon

made this pronouncement in the context of examining

whether one form of damages ought to be severed from

another form of damages without any statutory textual basis

for doing so. The Exxon Court was not evaluating whether a

claim for damages is of a different character than a claim for

injunctive relief. In fact, the case upon which Exxon relied for

that statement, Silkwood, likewise disapproved of an attempt

to sever compensatory and punitive damages, but its overall

holding suggests that severing rights and remedies is appro-

priate as between damages and injunctive relief in some cir-

cumstances.

Silkwood involved state common law tort claims brought

by the estate of a woman injured by nuclear contamination

from a nuclear plant at which she worked. 464 U.S. at 243.

The jury awarded compensatory and punitive damages,

despite evidence that the plant operator complied with most

federal regulations governing nuclear safety at the plant. Id.

at 244-45. The defendant plant operator argued that its com-

pliance with the federal regulations precluded an award of

punitive damages. Id. at 245. The Supreme Court rejected that

argument, concluding that although Congress granted a fed-

11666 NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL

eral entity, the Nuclear Regulatory Commission, exclusive

authority to regulate safety matters at nuclear power plants,

and thus states could not enjoin nuclear power plants from

operating for failure to comply with state safety standards,

Congress nevertheless intended to allow damages awards

under state law. Id. at 250-51, 256. Indeed, the Supreme Court

concluded that congressional silence on the matter of damages

claims, and its failure to provide a federal remedy for injured

persons, made it “difficult to believe that Congress would,

without comment, remove all means of judicial recourse for

those injured by illegal conduct.” Id. at 251.

Silkwood dealt with federal preemption of state law claims,

and thus is not directly applicable to a federal displacement

analysis. See Milwaukee II, 451 U.S. at 316-17. However, to

the extent Exxon cited it in support of the proposition that

compensatory and punitive damages generally are not severed

absent a statutory basis to do so, that is all the weight Silk-

wood can bear. Under Silkwood, a state law claim for injunc-

tive relief would be preempted by federal law because safety

regulation at nuclear facilities is a matter exclusively within

federal authority, while a state law damages claim neverthe-

less would not be preempted. Consequently, Silkwood sup-

ports the conclusion that the right and the remedy may indeed

be severed when the particular claim at issue seeks injunctive

relief versus damages.1

1

It is not inexorably the rule that the unavailability of one remedy neces-

sarily precludes the availability of another remedy arising out of the same

asserted right or injury. See, e.g., Cipollone v. Liggett Group, Inc., 505

U.S. 504, 518-19 (1992) (holding that while state law warning or labeling

requirements were preempted by federal tobacco labeling laws, (and thus

a state law action for injunctive relief requiring any such labeling would

be preempted), state law damages claims based on smoking-related inju-

ries were not preempted); Ex Parte Young, 209 U.S. 123 (1908) (permit-

ting a suit in federal court to prospectively enjoin a state official acting in

his official capacity even though a similar claim for damages could not be

brought in federal court due to the Eleventh Amendment).

NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL 11667

B.

Against this backdrop of cases under the CWA, the

Supreme Court in recent years has addressed the applicability

of the CAA to greenhouse gases and whether the CAA dis-

places federal common law. In Massachusetts v. EPA, the

Supreme Court evaluated a claim by several states, local gov-

ernments, and private entities that the EPA had abdicated its

responsibility under the CAA to regulate the emissions of

greenhouse gases from motor vehicles. 549 U.S. 497, 505,

510, 514 (2007). The Supreme Court held that greenhouse

gases fell within the CAA’s definition of “air pollutant” under

42 U.S.C. § 7602(g), and the EPA therefore has the statutory

authority to regulate the emission of greenhouse gases from

new motor vehicles. Id. at 532.

The Supreme Court subsequently evaluated whether the

CAA displaced federal common law nuisance abatement

claims based on greenhouse gas emissions in AEP. In AEP,

several States, a city, and three private land trusts brought fed-

eral common law nuisance abatement claims against four pri-

vate power companies and the federal Tennessee Valley

Authority. 131 S. Ct. at 2532. The AEP plaintiffs sought

injunctive relief in the form of emissions caps on the five

defendants, whom the complaints identified as the five largest

carbon dioxide emitters in the United States. Id. at 2534. The

Supreme Court held that the CAA “and the EPA actions it

authorizes displace any federal common law right to seek

abatement of carbon-dioxide emissions from fossil-fuel fired

power plants.” Id. at 2537. The Supreme Court noted that

greenhouse gases were air pollutants subject to EPA regula-

tion after Massachusetts, and the CAA “speaks directly” to

carbon dioxide emissions from stationary sources such as the

AEP defendants’ plants. Id.

To reach this conclusion, the Supreme Court analyzed the

scope of the CAA with respect to regulation of stationary

sources:

11668 NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL

Section 111 of the Act directs the EPA Administra-

tor to list “categories of stationary sources” that “in

[her] judgment . . . caus[e], or contribut[e] signifi-

cantly to, air pollution which may reasonably be

anticipated to endanger public health or welfare.”

[42 U.S.C.] § 7411(b)(1)(A). Once EPA lists a cate-

gory, the agency must establish standards of perfor-

mance for emission of pollutants from new or

modified sources within that category.

§ 7411(b)(1)(B); see also § 7411(a)(2). And, most

relevant here, § 7411(d) then requires regulation of

existing sources within the same category. For exist-

ing sources, EPA issues emissions guidelines, see 40

C.F.R. § 60.22, .23 (2009); in compliance with those

guidelines and subject to federal oversight, the States

then issue performance standards for stationary

sources within their jurisdiction, § 7411(d)(1).

Id. at 2537-38 (footnote omitted). The Supreme Court also

evaluated the enforcement mechanisms of emission standards

in the CAA, including enforcement by States, by the EPA,

and a citizen-suit provision pursuant to which “any person”

may enforce emission standards in federal court. Id. at 2538

(citing 42 U.S.C. § 7604(a)). Additionally, States and private

parties may petition the EPA to set an emission standard if

EPA has not done so. Id. (citing 42 U.S.C. § 7607(b)). The

Supreme Court concluded that the CAA “thus provides a

means to seek limits on emissions of carbon dioxide from

domestic power plants—the same relief the plaintiffs seek by

invoking federal common law.” Id.

The Supreme Court concluded the AEP plaintiffs’ federal

common law nuisance abatement claim therefore was dis-

placed, even though EPA had not yet set emission standards

for carbon dioxide: “The critical point is that Congress dele-

gated to EPA the decision whether and how to regulate

carbon-dioxide emissions from power plants; the delegation is

what displaces federal common law.” Id. The EPA’s decision

NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL 11669

whether to regulate was itself subject to judicial review, but

Congress through the CAA entrusted the “complex balanc-

ing” involved in assessing the appropriate amount of regula-

tion of greenhouse gases to the EPA in the first instance, not

the federal courts. Id. at 2539 (citing 42 U.S.C. §§ 7411(a),

(b), (c)(1), (d), (j)(1)(A)). Congress designated EPA to

address these competing concerns because an “expert agency

is surely better equipped to do the job than individual district

judges issuing ad hoc, case-by-case injunctions.” Id. at 2539.

Allowing federal judges to “set limits on greenhouse gas

emissions in face of a law empowering EPA to set the same

limits,” would upset the scheme Congress set forth in the

CAA. Id. at 2540.

C.

Under AEP, federal common law nuisance abatement

claims are displaced by the CAA. And under Middlesex, if

federal common law nuisance abatement claims are displaced,

so are federal common law nuisance damages claims.

While Exxon suggests a different result, Exxon appears to

depart from Milwaukee II and Middlesex. Exxon concluded

that the savings clause in 33 U.S.C. § 1321(o) preserved fed-

eral maritime common law damages claims despite Con-

gress’s provision of other federal remedies in § 1321. Exxon,

554 U.S. at 488-89. The savings clause in section 1321(o)(1)

provides:

Nothing in this section shall affect or modify in any

way the obligations of any owner or operator of any

vessel, or of any owner or operator of any onshore

facility or offshore facility to any person or agency

under any provision of law for damages to any pub-

licly owned or privately owned property resulting

from a discharge of any oil or hazardous substance

or from the removal of any such oil or hazardous

substance.

11670 NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL

Section 1321(o)(1) is similar to the citizen suit provision in

the CWA, which provides that “[n]othing in this section shall

restrict any right which any person (or class of persons) may

have under any statute or common law to seek enforcement

of any effluent standard or limitation to seek any other relief

. . . .” 33 U.S.C. § 1365(e). Milwaukee II concluded this lan-

guage did not preserve federal common law nuisance claims:

The subsection is common language accompanying

citizen-suit provisions and we think that it means

only that the provision of such suit does not revoke

other remedies. It most assuredly cannot be read to

mean that the Act as a whole does not supplant for-

merly available federal common-law actions but

only that the particular section authorizing citizen

suits does not do so.

451 U.S. at 328-29. Section 1321(o) did not specify that it

was preserving federal maritime common law damages claims

in the face of a federal enactment on the subject of federal

remedies for oil spills any more than § 1365(e) stated it was

preserving federal common law nuisance claims in the face of

the CWA. Exxon’s interpretation of this clause appears to be

at odds with Milwaukee II.

Exxon also seems to stray from Middlesex. Exxon’s reason-

ing for distinguishing Middlesex on the basis of the requested

remedy is not entirely clear. Exxon either failed to acknowl-

edge that the Middlesex plaintiffs sought damages as well as

injunctive relief, or it concluded that the amount of damages

requested in Middlesex effectively would have enjoined the

defendants from engaging in ocean dumping, essentially set-

ting a different effluent standard.

Exxon’s departure from Milwaukee II and Middlesex may

be explained by the fact that the defendants in Exxon appar-

ently did not argue that the federal maritime common law

claim was displaced in its entirety and conceded liability and

NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL 11671

compensatory damages. Another explanation may be that the

Exxon Court viewed § 1321 as not so comprehensive as to

displace federal maritime common law negligence claims for

damages, unlike the CWA provisions the Milwaukee II Court

found displaced federal common law nuisance claims.

Regardless of Exxon’s effect on the viability of federal

maritime common law negligence claims for damages under

§ 1321, Milwaukee II, Middlesex, AEP, and the comprehen-

sive nature of the CAA lead to the conclusion that Kivalina’s

federal common law nuisance claim for damages in this case

is displaced. Congress has spoken directly to the question of

what remedies are available under federal law for air pollu-

tion. The CAA sets forth a comprehensive regulatory scheme

committed to an expert agency, coupled with a variety of

enforcement mechanisms, including enforcement by States,

the EPA, and private parties. Consequently, the lack of a fed-

eral damages remedy is not indicative of a gap which federal

common law must fill. Congress could have included a fed-

eral damages cause of action in the CAA, and it may add one

at any time, but thus far it has opted not to do so. By supply-

ing a federal remedy Congress chose not to provide, this

Court would not be “filling a gap,” it would be “providing a

different regulatory scheme” than the one chosen by Con-

gress. Milwaukee II, 451 U.S. at 324 n.18.

Displacement of the federal common law does not leave

those injured by air pollution without a remedy. Once federal

common law is displaced, state nuisance law becomes an

available option to the extent it is not preempted by federal

law. AEP, 131 S. Ct. at 2540 (“In light of our holding that the

Clean Air Act displaces federal common law, the availability

vel non of a state lawsuit depends, inter alia, on the preemp-

tive effect of the federal Act.”). The district court below dis-

missed Kivalina’s state law nuisance claim without prejudice

to refiling it in state court, and Kivalina may pursue whatever

remedies it may have under state law to the extent their claims

are not preempted.

11672 NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL

I therefore concur in the majority opinion that the CAA and

the EPA action the Act authorizes displace Kivalina’s claims.

Because Kivalina’s federal common law nuisance damages

claim is displaced, the Court need not address the open ques-

tion of whether Kivalina is the type of party that can bring a

federal common law nuisance claim. See AEP, 131 S. Ct. at

2536-37 (noting that the Supreme Court had “not yet decided

whether private citizens . . . may invoke the federal common

law of nuisance to abate out-of-state pollution,” but conclud-

ing the question was “academic” because the plaintiffs’ fed-

eral common law nuisance claim was displaced by the CAA).

II.

The district court found Kivalina lacked standing. Standing

is a jurisdictional issue deriving from the “case or controver-

sy” requirement of Article III of the United States Constitu-

tion. Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092,

1098 (9th Cir. 2000). Standing depends on “whether a party

has a sufficient stake in an otherwise justiciable controversy

to obtain judicial resolution of that controversy, and serves to

ensure that legal questions presented to the court will be

resolved in a concrete factual context conducive to a realistic

appreciation of the consequences of judicial action.” Hall v.

Norton, 266 F.3d 969, 975 (9th Cir. 2001) (quotations, alter-

ations, and internal citation omitted).

The party invoking federal jurisdiction bears the burden of

establishing standing. Lujan v. Defenders of Wildlife, 504

U.S. 555, 561 (1992). The nature of that burden depends on

the stage of the litigation. Am. Fed’n of Gov’t Emps. Local 1

v. Stone, 502 F.3d 1027, 1032 (9th Cir. 2007). A plaintiff

must support each element of the standing inquiry “in the

same way as any other matter on which the plaintiff bears the

burden of proof, i.e., with the manner and degree of evidence

required at the successive stages of the litigation.” Lujan, 504

U.S. at 561. Consequently, at the dismissal stage, the Court

accepts as true all factual allegations in the complaint and

NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL 11673

draws all reasonable inferences therefrom in the nonmoving

party’s favor. Ass’n for L.A. Deputy Sheriffs v. Cnty. of L.A.,

648 F.3d 986, 991 (9th Cir. 2011). A complaint’s “general

factual allegations of injury resulting from the defendant’s

conduct may suffice, for on a motion to dismiss we presume

that general allegations embrace those specific facts that are

necessary to support the claim.” Jewel v. Nat’l Sec. Agency,

673 F.3d 902, 907 (9th Cir. 2011) (alteration, citation, and

internal quotation marks omitted). However, the complaint

must allege sufficient facts plausibly establishing each ele-

ment of the standing inquiry. Bell Atl. Corp. v. Twombly, 550

U.S. 544, 556 (2007); Lujan, 504 U.S. at 561; Barnum Timber

Co. v. EPA, 633 F.3d 894, 899 (9th Cir. 2011).

To establish standing under Article III of the Constitution,

a plaintiff must show “(1) injury in fact; (2) causation; and (3)

likelihood that the injury will be redressed by a favorable

decision.” Am. Civil Liberties Union of Nev. v. Lomax, 471

F.3d 1010, 1015 (9th Cir. 2006). Specifically with respect to

causation, the plaintiff must demonstrate that its injury is

“fairly . . . trace[able] to the challenged action of the defen-

dant, and not . . . th[e] result [of] the independent action of

some third party not before the court.” Pritikin v. Dep’t of

Energy, 254 F.3d 791, 797 (9th Cir. 2001) (alterations in orig-

inal) (citation omitted). The “line of causation” between the

defendant’s action and the plaintiff ’s harm must be “more

than ‘attenuated.’ ” Maya v. Centex Corp., 658 F.3d 1060,

1070 (9th Cir. 2011) (quoting Allen v. Wright, 468 U.S. 737,

757 (1984)). However, a “causal chain does not fail simply

because it has several ‘links,’ provided those links are ‘not

hypothetical or tenuous’ and remain ‘plausib[le].’ ” Id. (quot-

ing Nat’l Audubon Soc., Inc. v. Davis, 307 F.3d 835, 849 (9th

Cir. 2002)). But where the causal chain “involves numerous

third parties whose independent decisions collectively have a

significant effect on plaintiffs’ injuries, . . . the causal chain

[is] too weak to support standing at the pleading stage.” Id.

(citations and internal quotation marks omitted).

11674 NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL

Kivalina alleges that it is located at the tip of a barrier reef,

and that global warming has harmed Kivalina because sea ice

which used to protect Kivalina from coastal storms, waves,

and surges now forms later in the year, attaches to the coast

later, breaks up earlier, and is less extensive. Kivalina thus is

more exposed to storm waves and surges which are eroding

the land upon which Kivalina sits to such an extent that

Kivalina must relocate. According to the Complaint, Appel-

lees are various oil, energy, and utility companies who annu-

ally emit millions of tons of greenhouse gases, and whom

Kivalina thus identifies as “substantial contributors” to global

warming.

Kivalina’s Complaint describes global warming as follows:

Energy from the sun heats the Earth, which re-

radiates the energy to space. Carbon dioxide and

other greenhouse gases absorb some of the outgoing

infrared energy, raising the temperature of the

Earth’s atmosphere. Carbon dioxide is by far the

most significant greenhouse gas emitted by human

activity. . . . A large fraction of carbon dioxide emis-

sions persist in the atmosphere for several centuries,

and thus have a lasting effect on climate. Atmo-

spheric concentrations of carbon dioxide and other

greenhouse gases continue to increase as each year’s

emissions are added to those that came before. Car-

bon dioxide levels in the atmosphere have increased

by 35 percent since the dawn of the industrial revo-

lution in the 18th century, and more than one-third

of the increase has occurred since 1980. . . . Pro-

cesses on land and in the oceans that remove carbon

dioxide from the atmosphere are unable to keep pace

with these emissions. As a result, the natural carbon

cycle is out of balance and carbon dioxide levels in

the atmosphere are increasing every year. . . . The

global linear warming trend over the last 50 years is

twice that of the previous 50 years. . . . The Arctic

NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL 11675

is warming at approximately twice the global aver-

age.

According to the Complaint, global warming and the recogni-

tion of its potential implications are “not new,” with observa-

tions, calculations, and predictions as to its effect dating back

as far as the late 1800s.

Kivalina alleges specifically with respect to Appellees that

greenhouse gas emissions from Appellees’ operations “no

matter where such operations are located, rapidly mix in the

atmosphere and cause an increase in the atmospheric concen-

tration of carbon dioxide and other greenhouse gases world-

wide. The heating that results from the increased carbon

dioxide and other greenhouse gas concentrations to which

defendants contribute cause specific, identifiable impacts in

Kivalina.” Kivalina further alleges that Appellees “knew that

their individual greenhouse gas emissions were, in combina-

tion with emissions and conduct of others, contributing to

global warming and causing injuries to entities such as the

Plaintiffs.”

Kivalina has not met the burden of alleging facts showing

Kivalina plausibly can trace their injuries to Appellees. By

Kivalina’s own factual allegations, global warming has been

occurring for hundreds of years and is the result of a vast mul-

titude of emitters worldwide whose emissions mix quickly,

stay in the atmosphere for centuries, and, as a result, are

undifferentiated in the global atmosphere. Further, Kivalina’s

allegations of their injury and traceability to Appellees’ activi-

ties is not bounded in time. Kivalina does not identify when

their injury occurred nor tie it to Appellees’ activities within

this vast time frame. Kivalina nevertheless seeks to hold these

particular Appellees, out of all the greenhouse gas emitters

who ever have emitted greenhouse gases over hundreds of

years, liable for their injuries.

It is one thing to hold that a State has standing to pursue a

statutory procedural right granted to it by Congress in the

11676 NATIVE VILLAGE OF KIVALINA v. EXXONMOBIL

CAA to challenge the EPA’s failure to regulate greenhouse

gas emissions which incrementally may contribute to future

global warming. See Massachusetts, 549 U.S. at 516-20. It is

quite another to hold that a private party has standing to pick

and choose amongst all the greenhouse gas emitters through-

out history to hold liable for millions of dollars in damages.

III.

For the reasons articulated above, I concur in the majority’s

conclusion that the CAA displaces Kivalina’s federal com-

mon law nuisance claim for damages. Additionally, I would

hold that Kivalina lacks standing.