Ada Montague
The Court of Appeals for the Ninth Circuit’s decision in Kivalina follows the United States Supreme Court’s recent trend in denying the use of federal common law claims for redress of damages allegedly caused by greenhouse gas emissions. Under the doctrine of displacement, the court concluded that the concerns raised by the Native Village of Kivalina are addressed under the Clean Air Act, precluding a federal common law nuisance claim. However, the court noted that additional analysis by future federal courts may be appropriate in addressing whether damages are also displaced. The court did not preclude the possibility for redress under a state common law nuisance claim. The court held that federal common law was not available to resolve the issues raised by Kivalina, and that only the legislative and the executive branches could provide a remedy.
