Native Village of Kivalina v. ExxonMobil Corp.

The Native Village of Kivalina and the City of Kivalina (jointly referred to as “Kivalina”) are situated on a narrow 6-mile barrier reef.  No road connects the village to mainland Alaska.  The barrier reef is eroding out from under the village because climate change has caused sea ice that used to protect the village to melt. 

 

Kivalina filed a case seeking financial damages from some of the biggest greenhouse gas producers and emitters in the U.S. (ExxonMobil, Chevron, BP, Peabody, etc.) for their contribution to climate change. The complaint explained that two government agencies concluded “Kivalina must be relocated due to global warming and have estimated the cost to be from $95 million to $400 million.” Complaint for Damages, Demand for Jury Trial (“Kivalina complaint”), available at: http://www.crpe-ej.org/crpe/images/stories/campaigns_climate/Kivalina-v-ExxonMobil_complaint.pdf

 

A U.S. District Court dismissed the federal nuisance claim for lack of subject matter jurisdiction on the grounds that the claim raised a political question and because the plaintiffs lacked standing. Native Village of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 883 (N.D. Cal. 2009).  The court dismissed the state law nuisance claims without prejudice, meaning that they can be pursued at a later time in a state court.  Id.

 

Kivalina appealed the decision to the U.S. Court of Appeals for the Ninth Circuit, which affirmed the lower court.  Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012). The Ninth Circuit, however, dismissed the case under a different theory – declaring that Kivalina’s nuisance claim was not justiciable because it had been displaced by the Clean Air Act (CAA).  Id. at 858.

 

Interestingly, in addition to the nuisance claim, the plaintiffs also alleged that the defendants engaged in civil conspiracy to “mislead the public with respect to the science of global warming.” Kivalina complaint, para. 269.

 

There has been a long campaign by power, coal, and oil companies to mislead the public about the science of global warming.  Defendants ExxonMobil, AEP, BP America Inc., Chevron Corporation, ConocoPhillips Company, Duke Energy, Peabody, and Southern . . . participated in this campaign.  Initially, the campaign attempted to show that global warming was not occurring.  Later, and continuing to the present, it attempts to demonstrate that global warming is good for the planet and its inhabitants or that even if there may be ill effects, there is not enough scientific certainty to warrant action.

 

Kivalina complaint, para. 189.  Neither the District Court nor the Ninth Circuit addressed this claim.

 

The plaintiffs petitioned the U.S. Supreme Court for review, but the Court denied the petition on May 20, 2013.  Petition to the Supreme Court: http://www.crpe-ej.org/crpe/images/stories/campaigns_climate/2.24.13_Kivalina_Cert_Petition_09-17490-COMPLETE_FINAL.pdf.

 

You can learn more about the case on the website of the Center on Race, Poverty & the Environment (CRPE) (http://www.crpe-ej.org/).  Lawyers from CRPE were part of the legal team representing the community of Kivalina.

 

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Friday, September 21, 2012
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