Attorney: Heather R. Kendall-Miller
Global warming is wreaking havoc in Alaska. In recent years scientists have documented melting ocean ice, rising oceans, rising river temperatures, thawing permafrost, increased insect infestations, animals at risk and dying forests. Alaska Natives are the peoples who rely most on Alaska’s ice, seas, marine mammals, fish and game for nutrition and customary and traditional subsistence uses; they are thus experiencing the adverse impacts of global warming most acutely. As noted in the Arctic Climate Impact Assessment of 2004, indigenous peoples are reporting that sea ice is declining, and its quality and timing are changing, with important negative repercussions for marine hunters. Others are reporting that salmon are diseased and cannot be dried for winter food. There is widespread concern about caribou habitat diminishing as larger vegetation moves northward. Because of these and other dramatic changes, traditional knowledge is jeopardized, as are cultural structures and the nutritional needs of Alaska’s indigenous peoples. In 2006, during the Alaska Forum on the Environment, Alaska Native participants described increased forest fires, more dangerous hunting, fishing and traveling conditions, visible changes in animals and plants, infrastructure damage from melting permafrost and coastal erosion, fiercer winter storms, and pervasive unpredictability.
In the federal court case of Native Village of Kivalina v. Exxon Mobil, NARF represents the Native Village of Kivalina, which is a federally recognized Indian Tribe, and the City of Kivalina, which is an Alaskan municipality, in a suit filed on their own behalf and on behalf of all tribal members against defendants ExxonMobil Corp., Peabody Energy Corp., Southern Company, American Electric Power Co., Duke Energy Co, Chevron Corp., and Shell Oil Co., among others. In total there are nine oil company defendants, fourteen electric power company defendants and one coal company defendant. The suit claims damages due to the defendant companies’ contributions to global warming and invokes the federal common law of public nuisance. The suit also alleges a conspiracy by some defendants to mislead the public regarding the causes and consequences of global warming. In 2009 the Court granted the Defendants’ motion to dismiss on the basis that Kivalina’s federal claim for nuisance is barred by the political question doctrine and for lack of standing under Article III of the U.S. Constitution.
Appeal was stayed pending the U.S. Supreme Court case, Connecticut v. American Electric Power Company. In a four-four decision in June 2011, the Supreme Court in Connecticut v. American Electric Power Co., among other things, tied on the standing, political question and prudential question issues. The holding in Connecticut allows Kivalina’s case to proceed in that we have stated a proper federal common law claim upon which relief may be granted and that the monetary damages relief we seek distinguishes the case from the type sought but disallowed by the Court in Connecticut. Accordingly, the stay was lifted and oral argument before U.S. Court of Appeals for the Ninth Circuit took place in July 2011.
On September 21, 2012, the US Court of Appeals for the Ninth Circuit rejected our appeal. The Court held, in a very short and cursory opinion, that the federal Clean Air Act defines the full scope of all federal remedies for air pollution and, since there is no monetary damages remedy under the Clean Air Act, there is no monetary damages remedy under federal common law. Writing a separate opinion, Judge Pro noted that the most recent case law from the Supreme Court — the Exxon Shipping case (i.e. Exxon Valdez oil spill case), holds the opposite; in his concurring opinion Judge Pro struggles to make sense of the law since older case law would deny Kivalina’s claims while Exxon Shipping says that a federal environmental statute does not bar a federal common law claim for monetary damages. Based on the separate opinion by Judge Pro, a petition for rehearing en banc was filed on October 5, 2012 but rejected. Plaintiffs filed a timely petition for a writ of certiorari before the Supreme Court and we are waiting for a determination of whether it will be accepted.
Research is also being conducted to bring state law claims to address global warming.
Read More: Protection of Tribal Natural Resources