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[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, Published on: 4 October 2012

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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