Alaskan village asks appeals court to rehear climate change lawsuit against energy companies

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9 October 2012

Alaskan village wants rehearing of Ninth Circuit's global warming decision

Author: John O'Brien, Legal Newsline [USA]

An Alaskan village that claims global warming is eroding its shoreline is asking for a rehearing of their case against several power companies it says are to blame. The village of Kivalina has filed a motion for a rehearing of a September decision by the U.S. Court of Appeals for the Ninth Circuit…A three-judge panel has decided the village's case is preempted by the Environmental Protection Agency's Clean Air Act. The residents of Kivalina are a federally recognized tribe. They sued two dozen companies in 2008, alleging public nuisance on the parts of the defendants. They said climate change has resulted in the erosion of their island. [refers to American Electric Power Company, American Electric Power Services Corporation, BP America, BP Products North America, Chevron Corporation, Chevron U.S.A., ConocoPhillips Company, DTE Energy Company, Duke Energy Corporation, Dynegy Holdings, Inc., Edison International, ExxonMobil Corporation, GenOn Energy, MidAmerican Energy Holdings Company, Peabody Energy Corporation, Pinnacle West Capital Corporation, Shell Oil Company, The AES Corporation, The Southern Company & Xcel Energy]

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4 October 2012

[PDF] Native Village of Kivalina v. ExxonMobil Corporation, et al. - Petition for Rehearing En Banc

Author: Steve W. Berman, Hagens Berman Sobol Shapiro LLP, & Heather Kendall-Miller, Native American Rights Fund, lawyers for Village of Kivalina

The Court should grant rehearing en banc because the panel’s majority opinion directly conflicts with the Supreme Court’s holding in Exxon Shipping Co. v. Baker…The panel held that the federal Clean Air Act (“CAA”) displaces plaintiffs’ damages claim for injuries from global warming. It relied upon American Electric Power Co. v. Connecticut…, where the Supreme Court held the CAA displaced a claim seeking injunctive relief against greenhouse gas emissions. But in Exxon Shipping, the Supreme Court unambiguously held that a federal common law damages claim is not displaced by the Clean Water Act (“CWA”)…even though the CWA does displace a federal common law claim for injunctive relief…Consideration of Kivalina’s case by the en banc Court is necessary to secure and maintain compliance with Supreme Court precedent as well as to ensure uniformity between Kivalina and this Court’s decision in Exxon Shipping that the Supreme Court affirmed.

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