Kivalina at the Supreme Court: A Lost Opportunity for Federal Common Law

This article discusses the status of federal common law in the wake of the Supreme Court's May, 2013 denial of petitioners' writ of certiorari in Native Village of Kivalina v. Exxonmobil. A close reading of Supreme Court and recent appellate decisions on federal common law as applied to transboundary pollution reveals three views on the availability and function of federal common law where a federal statute addresses a category of environmental harms: presumptive displacement of federal common law when a federal statute creates a regulatory approach, presumptive coexistence of federal statutory and common law where a federal statute does not provide relief for injuries alleged under common law, and case-by-case balancing of the interfering effect of federal common law against the injuries left unaddressed by federal statutory law. The Court’s current approach resides somewhere between presumptive displacement and case-by-case balancing, and although the Court offers various rationales for this approach in its latest federal common law opinion, the most convincing of these is that cases involving transboundary pollution, particularly those alleging global warming-induced injury, are cumbersome for federal courts to handle as common law matters. Allocation of judicial resources is within the Supreme Court's discretion to consider in rejecting a case, but it is a far more pragmatic than principled rationale, and thus less than satisfying as a court’s primary reason for denying relief. A more principled approach, advocated by Justices Stevens and Blackmun in dissents to two key federal common law cases, is that the displacement analysis should begin with the premise that the judicial system aims, first and foremost, to compensate the injured, and that a federal common law claim should be displaced only where the legislative-regulatory regime covering the subject of a common law claim directly addresses the injury alleged under common law.