The Village of Kivalina has asked a federal appeals court to rehear a case it lost last month alleging that some of the world’s biggest oil producers are to blame for the Alaskan community’s eroding coastline.
The village has asked the U.S. Court of Appeals for the Ninth Circuit for an en banc rehearing against ExxonMobil, BP America Inc., AES Corp., Chevron Corp. and other energy giants. The lawsuit filed by the Inupiat Eskimo community, which has a population of about 400, alleged that the oil producers contributed to greenhouse gases that helped melt the sea ice that protected its coastline from powerful winter storms. The plaintiffs claimed that the entire village needs to move, at a cost of up to $400 million, to survive.
Additional defendants in the case included ConocoPhillips, Royal Dutch Shell PLC, Duke Energy Corp. and Edison International.
In a closely watched decision, a three-judge Ninth Circuit panel on September 21 affirmed the case’s dismissal by the U.S. District Court for the Northern District of California. The panel found that the villagers could not sue under the tort theory of public nuisance or obtain monetary damages. It also concluded that a public-nuisance claim under federal common law was precluded, or “displaced,” by the federal Clean Air Act. That statute allows for lawsuits by private parties under limited circumstances.
In its petition for rehearing by an 11-judge en banc filed panel on October 4, the Village of Kivalina asserted among other points that the ruling last month directly contradicted a 2008 U.S. Supreme Court ruling in Exxon Shipping Co. v. Baker, which held that the Clean Air Act does not displace federal common law damages claims, even though the statute blocks plaintiffs from obtaining injunctive relief.
“The direct conflict here between the majority opinion and Exxon Shipping practically jumps off the page,” the attorneys for Kivalina wrote in their petition.
“We think it meets the criteria for a rehearing,” said attorney Steve Berman, one of the lawyers representing the village. He is apartner at Seattle-based Hagens Berman Sobol Shapiro.
Representing defendant AES Corp. is William Norris, a former Ninth Circuit judge and senior counsel at Akin Gump Strauss Hauer & Feld. He declined to comment regarding the merits of the petition. As for when the court might decide whether to rehear the case, he said, “That’s like asking how high is up.”
Under procedural rules, defendants will not file a response to the petition unless asked to do so by the court.
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