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Alaskan Village Seeks Rehearing of Climate Change Suit in 9th Circuit

Holleb_Hotaling_Keri_COLORBy Keri L. Holleb Hotaling

 

On October 4, 2012, the Alaskan Village of Kivalina filed a petition for rehearing en banc in the Ninth Circuit. Petitioners urge the Ninth Circuit to reconsider its September 21, 2012 decision to uphold dismissal of a federal common law public nuisance claim against twenty-two energy companies over their greenhouse gas emissions, which Kivalina claimed left the Village uninhabitable by eroding sea ice that protected the Village from fall and winter storms. Kivalina had sought damages of roughly $400 million. In its petition for rehearing, Kivalina argues that the recent Ninth Circuit decision directly conflicts with Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008). Kivalina maintains that in Exxon Shipping, the Supreme Court held that the Clean Water Act, like the Clean Air Act at issue in this case, displaces federal common law claims for injunctive relief, but not for damages. The petition states "[t]he direct conflict here between the majority opinion and Exxon Shipping practically jumps off the page." Kivalina contends the Ninth Circuit's panel's decision was in error because Exxon Shipping "suggests a different result" from the one reached by the majority.