Kivalina lawsuit (re global warming)
On 26 February 2008 Kivalina, a Native Alaskan village of approximately 390 Inupiat residents, launched a federal lawsuit in California aimed at oil, coal and power companies. The plaintiffs argue that the defendants’ contribution to global warming through their emissions of carbon dioxide and other greenhouse gasses substantially and unreasonably interferes with the plaintiffs’ rights to use and enjoy public and private property in Kivalina. The village seeks to recover monetary damages, up to $400 million, for the cost of relocating the entire village as a result of what they describe as "defendants’ past and ongoing contributions to global warming". Kivalina also alleges that certain defendants conspired to suppress public awareness of the link between greenhouse gas emissions and global warming, thereby further contributing to the community’s injuries.
On 30 June 2008 BP, Chevron, ConocoPhillips, ExxonMobil, Peabody Energy and Shell filed motions to dismiss the case on several grounds. First, these defendants claimed that the court lacks jurisdiction to hear the case because the claim raises nonjusticiable political questions (more information on the political question doctrine here). Second, they argued that the plaintiffs did not have standing to bring the case because they cannot establish the causal link between the injuries complained of and the defendants’ acts. Third, these defendants argued that the plaintiffs failed to state a claim recognised under law. Finally, they argued that the plaintiffs’ conspiracy claim runs contrary to the US Constitution’s First Amendment protections of free expression.
Responding to the motion to dismiss, plaintiffs argued that their claim is that of simple public nuisance. In response to the political question argument, Kivalina underlined that it only asks the Court to resolve a dispute between the parties and award monetary damages if appropriate. Plaintiffs also pleaded that their conspiracy claim does not run contrary to the First Amendment because the latter does not protect deliberately false statements or deceptive conduct. Finally, plaintiffs argued that they have standing to bring the case as there is no requirement for them to specify which particular emission and at what point in time caused the community’s injury.
In addition to the companies referred to above, defendants in this case include: AES, American Electric Power, DTE Energy, Duke Energy, Dynegy, Edison Intl., MidAmerican Energy, Mirant, NRG Energy, Pinnacle West, Reliant Energy, Southern Company and Xcel Energy. On 30 September 2009, the US District Court for the Northern District of California granted the defendants’ motion to dismiss, agreeing with the defendants’ arguments that the case raises nonjusticiable political questions and that the plaintiffs lack standing to bring the case. In November 2009, Kivalina Village appealed this dismissal to the Ninth Circuit Court of Appeals. In September 2012 the appeals court rejected Kivalina's appeal, affirming the lower court's dismissal of the case. In October 2012, Kivalina asked the appeals court to rehear the case en banc (before the full panel of appeals court judges), but the court refused to rehear the case. The plaintiffs filed an appeal with the Supreme Court in February 2013, but the court declined to hear the appeal.
- "Alaskan village takes global warming case to U.S. SC", Jessica Karmasek, Legal Newsline [USA], 8 May 2013
- "Alaskan village wants rehearing of Ninth Circuit's global warming decision", John O'Brien, Legal Newsline [USA], 9 Oct 2012
- "Alaskan village loses appeal in global warming case against oil giants", Leigh Jones, National Law Journal, 24 Sep 2012
- [video] "Appeals court hears argument by village seeking damages from U.S. industry for global warming", Dermot Cole, Fairbanks Daily News-Miner [USA], 29 Nov 2011
- “Kivalina global warming litigation dismissed on political question grounds”, Gil Keteltas, Global Climate Law Blog, 16 Oct 2009
- “ The Arctic fight for survival ”, Jacqueline Head, Al Jazeera, 27 May 2009
- [PDF] “Climate Change Litigation: Familiar Theories of Recovery”, Jonathan B. Shoebotham, Toxic Torts Verdict Reports, Sep 2008
- “Flooded Village Files Suit, Citing Corporate Link to Climate Change”, Felicity Barringer, New York Times, 27 Feb 2008
- Hagens Berman Sobel Shapiro LLP (plaintiffs’ lawyers): “Kivalina - Global Warming”, 2 Oct 2008 [press release]
- Southeastern Legal Foundation & American Justice Partnership: [PDF] “The Most Dangerous Litigation in America: Free Speech Under Attack 'Kivalina'”, 10 Apr 2008
- Dustin Till, Marten Law Group: “Threatened by Rising Seas, Native Village Seeks Lifeline in Federal District Court ”26 Mar 2008 [legal analysis]
- Heather Kendall-Miller, Native American Rights Fund: “Global Warming Project”
- Al Jazeera: [VIDEO] “People & Power - Alaska: A case of global proportions”, 27 May 2009.
Link to defendants’ websites regarding climate change:
- AES: “Alternative Energy”
- American Electric Power: “Our view on Coal and Climate Change”
- BP: “Climate change: Our position”
- Chevron: “Climate Change”
- ConocoPhillips: “Climate Change position”
- DTE Energy: “Climate Change”
- Duke Energy: “Global Climate Change: Duke’s Energy Position”
- ExxonMobil: “Climate Change”
- Shell: “Responding to Climate Change”
- Xcel Energy: [PDF] “Climate Policy & Carbon Reductions ”
Native Village of Kivalina v ExxonMobil, et al., US Court of Appeals for the Ninth Circuit
- [PDF] Plaintiffs-Appellants' Petition for Rehearing En Banc, 4 Oct 2012
- [PDF] Opinion of Ninth Circuit Court of Appeals, 21 Sep 2012
Native Village of Kivalina v ExxonMobil, et al., US District Court, Northern District of California
- [PDF] Complaint For Damages and Demand for Jury Trial, 26 Feb 2008
- [PDF] Motion of Certain Oil Company Defendants to Dismiss Plaintiffs' Complaint, 30 Jun 2008
- [PDF] Motion of Certain Oil Company Defendants to Dismiss Plaintiffs' Complaint, 30 Jun 2008
- [PDF] Utility Defendants’ Motion to Dismiss , 30 Jun 2008
- [PDF] Motion to Dismiss of Peabody Energy, 30 Jun 2008
- [PDF] Plaintiffs' Legal Brief Opposing the Motion to Dismiss, 8 Oct 2008
- [PDF] Reply Memorandum in Support of Certain Oil Company Defendants to Dismiss Plaintiffs’ Complaint, 18 Nov 2008
- [PDF] Amended Re-notice of motion and motion of Certain Oil Company Defendants to Dismiss Plaintiffs’ Complaint, 3 Mar 2009
- [PDF] Order Granting Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction, 30 Sep 2009
All components of this story
Author: David Sherfinski, Washington Times
The Virginia Supreme Court has handed down an unprecedented ruling on companies’ liability for global warming-related damages — a first-in-the-nation decision that could portend massive consequences for energy companies and environmental lawyers. The ruling stems from an ongoing case in federal court, in which the Alaskan island town of Kivalina accused a handful of mostly U.S. energy companies of contributing to global warming, which it says has rendered the town uninhabitable...One of the energy companies...Arlington-based AES..., was then sued in Virginia by its insurance carrier, which objected to having to defend the company and possibly pay damages associated with global warming as part of a policy covering accidents. “In this instance, the allegations of negligence do not support a claim of an accident,” Justice S. Bernard Goodwyn wrote in a[n]...opinion...[also refers to Steadfast Insurance]
Author: Insurance Journal
...[T]he Virginia Supreme Court stated that “upon consideration of the [AES Corp.'s] petition to set aside the judgment...it is ordered that the said judgment be set aside and a rehearing is granted.” Last September, the high court affirmed a lower court’s decision that Steadfast Insurance, which provided commercial general liability (CGL) coverage for...energy company AES...has no duty to defend and indemnify the insured for claims arising from a global warming lawsuit...This case has been closely watched by the insurance industry because it’s the first case of its kind in the country to reach an appellate court. The case asks whether an insurer offering a CGL policy is liable for claims when the insured is accused of contributing to the climate change and causing environmental damage...The case centers around AES and a lawsuit filed against the company by a village in Alaska.
[video] Appeals court hears argument by village seeking damages from U.S. industry for global warming
Author: Dermot Cole, Fairbanks Daily News-Miner [USA]
A three-judge panel of the Ninth U.S. Circuit Court of Appeals heard oral arguments in San Francisco...in the case of Kivalina v. ExxonMobil. Kivalina filed suit against Exxon and 23 other oil companies, coal companies and power companies, alleging that they are responsible for global warming, which is destroying sea ice, which means that Kivalina must be moved at a cost of anywhere from $95 million to $400 million...Kivalina claims that the companies have damaged the village by their actions and some of them have engaged in a conspiracy to spread falsehoods about climate change. The defendants in the case say that the attempt to blame selected companies for "contributing" to the "alleged nuisance" of global warming is without merit.
Author: Larry O'Dell, Associated Press
The Virginia Supreme Court ruled in favor of an insurance company...in the nation's first legal test of whether insurers may be liable for claims arising from global warming. The justices unanimously ruled that environmental problems allegedly caused by power-producer AES...'s emission of greenhouse gases were not "occurrences" covered by a commercial liability policy issued by Steadfast Insurance...The case arose from a lawsuit filed in 2008 by the Native Village of Kivalina, located on the tip of a small barrier reef on the northwest coast of Alaska, about 70 miles north of the Arctic Circle. The native village claimed that emissions of carbon dioxide and other greenhouse gasses by Virginia-based AES contributed to global warming, causing ice protecting the shoreline to melt and exposing the village to storm surges and erosion...Steadfast’s attorney...Leah W. Sears...referred questions to the insurer’s parent company, Zurich Financial Services. “We welcome the chance to bring this matter to a close and believe the court’s ruling speaks for itself,” the company said in a written statement.
Author: Christine Shearer, Earth Island Journal
For the Inupiat people of Kivalina in the Arctic of Alaska, the price of further climate change denial could be the complete devastation of their lives and culture. Their crumbling village must be relocated to survive. But neither the government, nor the fossil fuel giants who have helped speed up the destruction of their village seem to willing to take responsibility. In her compelling new book Kivalina: A Climate Change Story, Christine Shearer traces the history of corporate greed and government compliance and connects it to the plight of this ancient Eskimo community by the Chukchi Sea coast. A grim forewarning of what could soon be the plight of coastal communities across the world if we don’t wake up and act right now...In the midst of government inaction on climate change, the village filed suit against fossil fuel companies for their relocation costs, and for creating a false debate around global warming: Kivalina v. ExxonMobil et al.
Author: Lawrence Hurley, Greenwire (USA)
The Supreme Court's ruling…finding that states cannot invoke federal common law in an attempt to limit greenhouse gas emissions has left several key legal questions unanswered…[T]he court did not address whether states and others can sue under state law to limit emissions. The first case likely to be affected by the Supreme Court's decision is…Kivalina v. Exxon Mobil...Whatever happens in AEP on remand, lawyers assume there will be future cases in which state law claims are litigated…9th Circuit case focuses on a lawsuit filed by the Alaskan village of Kivalina against major polluters…Its lawyers, including Pawa, claim that 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…Pawa said Kivalina can be distinguished from AEP because the village is seeking monetary damages -- based on its need to relocate -- rather than injunctive relief in the form of reduced emissions.
Author: Lawrence Hurley, Greenwire, on New York Times
...[A] majority of Supreme Court justices appeared hostile today as to whether states can regulate greenhouse gases as a public nuisance under federal common law...[The] plaintiffs, six states, New York City and several land trusts,...want utilities that operate fossil fuel-fired electric power plants to reduce emissions by invoking federal "public nuisance" common law...The plaintiffs...argue that the power companies are contributing to a public nuisance by releasing greenhouse gases into the air...American Electric Power Co. Inc. and several other power companies [Duke, Xcel, Southern Co.] maintain that the Clean Air Act supplants the federal common law when it comes to greenhouse gas emissions...[The] justices were keen to reach the merits over whether the Clean Air Act and EPA rulemaking had displaced the federal common law...Whatever conclusion the court reaches, it could affect another case on the same issue. Kivalina v. ExxonMobil is in the 9th U.S. Circuit Court of Appeals...
Author: Marcia Coyle, National Law Journal [US]
Perched on an Alaskan barrier island, the village of Kivalina faces imminent destruction because of melting sea ice. Now, the community's legal effort -- which pins the blame on energy companies for the change in climate -- is in danger as well. So, too, is a pair of high-profile climate-change suits that may be taken up by the U.S. Supreme Court, one involving an effort by Connecticut and other states to reduce greenhouse-gas emissions, the other stemming from Hurricane Katrina. All three suits rely upon the theory that climate change is a public nuisance...If the justices grant review, the stage could be set for reversal of a rare, recent high court victory for environmentalists, the 2007 decision in Massachusetts v. Environmental Protection Agency. [refers to ExxonMobil, American Electric Power]
Author: Rachel Morris, for Climate Desk Collaboration, on Slate.com
The Federated States of Micronesia, some 8,000 miles away in the Pacific Ocean, has lodged a legal challenge to the [Cez Group's] Prunéřov plant [in the Czech Republic] on the grounds that its chronic pollution threatens the island nation's existence...or the first time, Micronesia is applying this tenet [transboundary harm] to climate change[also refers to Kivalina lawsuit against 19 oil & utility firms including BP, ExxonMobil]
Author: Al Jazeera People & Power
Last year People & Power ran a series of special reports on five cases of multinational companies being held to legal account by ordinary people. The charges against them ranged from environmental damage and corruption to unlawful killing and even war crimes. Ten months later, People & Power returns with an update on those Corporations on Trial…One of the most striking features of our Corporations on Trial series was how ordinary people found the courage and determination to pursue justice through the courts, even though success in some cases seemed a very long way off. [refers to Alstom, Chiquita, Green Park, Green Mount, Lapindo Brantas, Trafigura, Veolia]
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