Global Warming Project
Attorney: Heather Kendall-Miller

Case Update

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. 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. (Dan Joling, Associated Press, 2/7/07). Virtually every aspect of traditional Alaska Native life is impacted. 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 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. On October 15, 2009, the Court granted the Defendant's 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.
Appeal was stayed pending the United States Supreme Court's review of Connecticut v. American Electric Power Company. In Connecticut the Second Circuit had held that plaintiffs, including states and private entities, may bring climate change suits and further held that:

(1) the plaintiffs' claims do not present political questions that the courts cannot / should not address;
(2) the plaintiffs have standing to bring their claims;
(3) the complaint states claims under the federal common law of nuisance; and
(4) the plaintiffs' claims are not displaced by any federal legislation.

In a four-four decision the Supreme Court in Connecticut tied on the standing, political question and prudential question issues which affirms that there is jurisdiction in federal court over the case. The only issue lost on was whether EPA's authority to regulate greenhouse gases under the Clean Air Act preempts (aka "displaces") plaintiffs' right to pursue a federal tort law claim. The Supreme Court held that the authority of EPA to regulate greenhouse gas emissions preempts a federal tort law case seeking GHG emissions limits, even if EPA does not exercise such authority.

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 one that seeks to displace EPA's authority to regulate. Briefs have been filed seeking to lift the stay to allow further briefing in the Ninth Circuit.