Kivalina Decision, Russell Train's Passing, House "War on Coal" Bill, Brazil Mining Proposal (by Bob Percival)

On Friday September 21 the U.S. Court of Appeals for the Ninth Circuit dismissed a climate change public nuisance suit seeking damages to relocate an Alaskan village disappearing due to sea level rise. In Native Village of Kivalina v. ExxonMobil Corporation the village sued 22 oil , energy and utility companies, alleging that they had contributed to global warming and climate change which was causing the sea level rise. In 2009 federal district judge Saundra v. Armstrong dismissed the case as a non-justiciable political question. The appellate panel affirmed the dismissal, but on the narrower ground that the Clean Air Act had displaced the federal common law of nuisance concerning emissions of greenhouse gases (GHGs), based on the Supreme Court’s June 2011 decision in American Electric Power v. Connecticut (AEP). A copy of the Ninth Circuit’s Kivalina decision is available online at: http://www.ca9.uscourts.gov/datastore/opinions/2012/09/21/09-17490.pdf. In a concurring opinion District Judge Philip M Pro, sitting on the appellate panel by designation, argued that the plaintiffs also lacked standing to bring their lawsuit because they had failed to make sufficient allegations tying the defendants to their alleged injuries.

The decision is not entirely unexpected given last year’s AEP decision in which the Supreme Court held that because the U.S. Environmental Protection Agency (EPA) could regulate (and now is regulating) GHG emissions under the Clean Air Act the federal common law of nuisance had been displaced. Kivalina extends this displacement rationale to a suit for damages, something the Clean Air Act does not authorize. The court reasoned that statutory displacement of the underlying right to bring a federal public nuisance action also displaces all remedies under federal common law, including damages. In his unanimous decision for the panel, Judge Sidney R. Thomas cites with approval last year’s decision by the Seven Circuit in Michigan v. U.S. Army Corps of Engineers, which upheld the right of states to pursue a federal common law nuisance action to stop invasive species of carp from reaching the Great Lakes. He also emphasizes that the decision does not leave the plaintiffs without a remedy because they still may pursue state common law nuisance actions in state court.

On September 17 former EPA Administrator Russell Train died. Train served as chairman of the newly-created Council on Environmental Quality from 1970-1973. He then became the second administrator of EPA from September 1973 to January 1977, a crucial time when several important environmental laws were enacted. Train also helped found the World Wildlife Fund (U.S.) and he served as the very model of a Republican who cared deeply about the environment. I highly recommend his memoir, Politics, Pollution, and Pandas, which was published in 2003. This book provides invaluable insights about the history of environmental law and politics, reflecting the crucial role Train played in its development.

A reminder of how far Republican politicians have veered away from the environment since Train’s time was provided when the U.S. House of Representatives on Friday approved the “Stop the War on Coal” Act, H.R. 3409 by a vote of 233-175. This legislation, which has no prospect of winning approval in the Senate, was the final order of business by the Republican leadership of the House before it adjourned until after the election. It rolled into one measure five separate legislative initiatives to strip EPA of authority and roll back crucial environmental protections. These include measures to deprive EPA of authority to regulate emissions of greenhouse gases under the Clean Air Act, the very source of the displacement of federal common law in Kivalina and AEP. Nineteen Democrats supported the legislation in the House vote.

On September 17 Royal Dutch Shell announced that it would suspend until next year its efforts to find oil in the Arctic. The delay was caused by an accident during a test that damaged the containment dome designed to stop spills like the 2010 BP blowout. Angel Gonzalez & Ben Winkley, Shell Delays Arctic Quest, Wall St. J., Sept. 18, 2012, at B2.

Brazil is considering controversial legislation to open up its 688 indigenous territories to mining. Under Brazil’s 1988 Constitution, indigenous peoples are given inalienable rights over their lands, which cover approximately 13 percent of the country, and mining is prohibited until regulations have been enacted to control it. Under the bill local communities would be entitled to 2 percent of the revenue from mining operations. Congressman Edio Lopes of Brazil’s Democratic Workers Party has drafted the proposed legislation, which would require consultation with indigenous peoples and specific approval from Congress before each mining project is launched. Diana Kinch, Brazil Eyes New Mining Riches, Wall St. J., Sept. 18, 2012, at A13.

Last week the National Petroleum Agency of Brazil (ANP) levied a fine of 35.1 million reals ($17.3 million) on Chevron for its role in the November 2011 seabed spill of 3,700 barrels of crude oil in the Frade field off the coast of Brazil. The fine covers 24 of 25 violations for which Chevron was cited by the agency. It may be increased by an additional 2 million reals when a penalty is determined for the remaining violation. The drilling company Transocean, Ltd. was not fined by the Brazilian agency. Both Chevron and Transocean still face criminal and civil suits in connection with the spill. Jeff Fick, Brazil Agency Levies Fine of $17.3 Million for Spill, Wall St. J., Sept. 18, 2012, at B15.

After my Environmental Law class last Monday I flew to Houston where I gave a talk to the University of Houston Law Center during a faculty lunch on September 18. During my talk on “The
Electronic Casebook and the Digital Classroom” I demonstrated how I use technology in the classroom, in particular the electronic version of my casebook Environmental Regulation: Law, Science and Policy. I returned to D.C. on Tuesday night and on Thursday I was able to witness in person the Washington Nationals clinch their first ever playoff berth by defeating the Los Angeles Dodgers. On Sunday I took one of my former students from Shandong University to her first baseball game ever at Nationals Park.