A federal appeals court held today that an Alaskan village can't sue oil companies and utilities for damages associated with climate change under federal common law.

The San Francisco-based 9th U.S. Circuit Court of Appeals handed a loss to the Alaskan village of Kivalina, saying it cannot make "public nuisance" claims under federal common law. The Clean Air Act and Obama administration actions intended to reduce greenhouse gas emissions have displaced any such claims, the court concluded.

The ruling was expected in large part because of a 2011 Supreme Court ruling in American Electric Power v. Connecticut, in which the court held on an 8-0 vote -- with Justice Sonia Sotomayor recused -- that similar claims made by states against utilities were displaced (Greenwire, June 20, 2011).

The case is not quite over entirely, as Kivalina could still pursue nuisance claims under state law.

The 2008 lawsuit said emissions have contributed to rising sea levels that are now endangering the village, which sits at the end of an 8-mile barrier island that separates the Chukchi Sea and Kivalina River.

The lawyers maintained that the case is different from the Supreme Court case because the village is seeking monetary damages rather than injunctive relief in the form of a direct reduction in emissions.

The 9th Circuit, in an opinion by Judge Sidney Thomas, declined to bite.

Following the reasoning of the high court, Thomas noted that federal law public nuisance claims can be made only when federal statutes do not address the issue being litigated.

As for the fact that Kivalina was seeking damages rather than a reduction in emissions, Thomas wrote that under Supreme Court precedent, "the type of remedy is not relevant to the applicability of the doctrine of displacement."

That the alleged damage happened before U.S. EPA took action to curb greenhouse gas emissions "does not alter the analysis," he added.

Philip Pro, a U.S. district judge in the District of Nevada sitting by designation, wrote a concurring opinion in which he said Kivalina did not have standing to sue.

He also suggested there is "tension" in Supreme Court precedent over whether the displacement of an injunctive relief claim automatically leads to the same outcome in a claim for damages.

On standing, Pro said Kivalina had failed to show that the alleged damage can be traced to the defendants.

"By Kivalina's own factual allegations, global warming has been occurring for hundreds of years and is the result of a vast multitude of emitters worldwide whose emissions mix quickly, stay in the atmosphere for centuries, and, as a result, are undifferentiated in the global atmosphere," Pro wrote.

It would make little sense to say Kivalina had standing "to pick and choose amongst all the greenhouse gas emitters throughout history to hold liable for millions of dollars in damages," he added.

Pro did note, however, that Kivalina "may pursue whatever remedies it may have under state law" to the extent they are not pre-empted by federal law.

Climate change legal expert J. Wylie Donald, a partner at the McCarter & English law firm in Wilmington, Del., noted that although the ruling was "not a surprise," the discussion in Pro's concurrence suggested "it was not as open and shut as we all thought."

Likewise, Pro's comments on standing likely mean "the distance to the goal line ... has gotten more difficult to travel" for the plaintiffs, he added.

Sean Donahue, an attorney who filed an amicus brief on behalf of the solar industry in support of the village, said the court had recognized that climate change was a problem and reaffirmed the fact that "federal statutory law provides tools to attack the problem."

Kivalina's lead attorney, Matt Pawa, could not immediately be reached for comment.

Pat Hemlepp, a spokesman for American Electric Power Co. Inc., one of the defendants, took particular note of the standing language, saying the company has always argued "it is impossible to demonstrate that greenhouse gas emissions from a specific source or specific company cause any particular harm."

Click here to read the ruling.