Kivalina lawsuit (re global warming)

Aerial view of Kivalina, Alaska, USA, U.S. Army Corps of Engineers Digital Visual Library,[ Pour la version française de ce profil, cliquez ici.

Para la versión en español, haga clic acá.

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

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13 January 2013

Should Polluting Nations Be Liable for Climate Damages?

Author: Fred Pearce, Yale Environment 360 [USA]

[The UN Framework Convention on Climate Change] allows countries to take those nations failing in their duties under the convention to the…International Court of Justice...[I]f countries can sue each other, why not private actions against fossil fuel companies and other corporate polluters? The few attempts so far by citizens to take climate change to court, mostly in the U.S., have been unsuccessful. Courts have dismissed their actions on the grounds that climate change is a political rather than a legal issue…[One case] brought echoes of the…class actions against tobacco and asbestos companies that hung…on their denial of the science proving the risks from their products...“If they set up a mechanism for compensation internationally, that would make private litigation more difficult…because [US] courts might defer to that process,” [according to a lawyer]… [also refers to Exxon Mobil]

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8 May 2013

Alaskan village takes global warming case to U.S. SC [Supreme Court]

Author: Jessica M. Karmasek, Legal Newsline

An Alaskan village claiming that global warming is eroding its shoreline has taken its fight to the U.S. Supreme Court. The village of Kivalina…made the move after a federal appeals court denied its petition for a rehearing in November…The residents of Kivalina are a federally recognized tribe. They sued two dozen companies in 2008, alleging public nuisance on the parts of the defendants. They said climate change has resulted in the erosion of their island…The defendants are American Electric Power Company, American Electric Power Services Corporation, BP America, BP Products North America, Chevron Corporation, Chevron U.S.A., ConocoPhillips Company, DTE Energy Company, Duke Energy Corporation, Dynegy Holdings Inc., Edison International, ExxonMobil Corporation, GenOn Energy, MidAmerican Energy Holdings Company, Peabody Energy Corporation, Pinnacle West Capital Corporation, Shell Oil Company, The AES Corporation, The Southern Company and Xcel Energy.

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18 September 2013

[PDF] Corporate Legal Accountability Quarterly Bulletin – Issue 10, Sep 2013

Author: Business & Human Rights Resource Centre

Welcome to the 10th issue of the Corporate Legal Accountability Quarterly Bulletin. To assist all those following corporate legal accountability issues, we send this bulletin to highlight key developments, new cases profiled on our site, updates to existing profiles, and other news. Our Corporate Legal Accountability Portal is an online information hub providing resources for non-lawyers as well as lawyers – including victims, advocates, NGOs, businesspeople, lawyers bringing lawsuits against companies and lawyers defending companies. The portal provides impartial, concise information about lawsuits against companies in which human rights abuses are alleged – its aim is to demystify these lawsuits. Each case profile includes materials from both the plaintiffs and defendants, to the extent they are available…This bulletin is now available in Spanish and French. [Refers to African Barrick Gold, Alstom, BP, CACI, Chevron, Coca-Cola, COMILOG (part of ERAMET), Daimler, Danzer, Dow Chemical, Drummond, ERAMET, Ford, HudBay Minerals, IBM, KBR, Ledesma, Mercedes-Benz (part of Daimler), Monterrico Metals, Nestlé, PA Child Care, Qosmos, Rio Tinto, Shell, Sinter Metal, SNCF, Texaco (part of Chevron), Thomson Safaris, Total, Union Carbide (part of Dow), Vedanta Resources, Veolia (part of Veolia Environnement), Veolia Environnement, Walmart]

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10 August 2015

USA: Alaska villagers likely to be forced to relocate due to climate change after failed legal claims against fossil fuel firms

Author: Adam Wernick, Public Radio International

“Will these Alaska villagers be America's first climate change refugees?”, 9 Aug 2015

Scientists estimate that due to climate change, the village of Kivalina, in northwestern Alaska, will be underwater by the year 2025. In 2008, the Inupiat village sued 24 of the world's biggest fossil fuel companies for damages. In 2013, the Supreme Court refused to hear the case and the village has declared it will not file a new claim in state court. Meanwhile…the sea around Kivalina continues to rise, the storms get stronger, the ice gets thinner — and Kivalina's 400 residents must grapple with how to relocate in the decade they're estimated to have left…The village originally voted to relocate as far back as 1992, but it is massively expensive. Their court case against the fossil fuel companies sought damages to help pay for the residents’ relocation…Christine Shearer, who wrote about Kivalina's legal case in her book, Kivalina: A Climate Change Story, …[says] there are no policies in place to relocate an entire community, like Kivalina, prior to an actual disaster…

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26 July 2017

Exxon, Shell and other carbon producers sued for sea level rises in California

Author: Laura Paddison, Guardian (UK)

Three Californian communities have launched legal action against some of the world’s biggest oil, gas and coal companies, seeking compensation for the current and future costs of adapting to sea level rises linked to climate change.

San Mateo and Marin Counties, coastal communities in northern California, and Imperial Beach, a city in San Diego County, have filed complaints against 37 “carbon majors”, including Shell, Chevron, Statoil, Exxon and Total.

They claim greenhouse gas emissions from the fossil fuel companies’ activities over the last 50 years have locked in substantial sea level rises, which will cause billions of dollars’ worth of damage to properties and businesses, as well as endangering lives…

A spokeswoman for Shell said “we believe climate change is a complex societal challenge that should be addressed through sound government policy and cultural change to drive low-carbon choices for businesses and consumers, not by the courts.” A spokesman for Statoil said this lawsuit was not the first against the industry and that “previous cases have been dismissed as [providing energy while meeting climate commitments] is a political, not a judicial, issue”…

“This kind of litigation is a vital tool in the spreading effort to force oil companies to change their business models,” says Jeremy Leggett, founder of solar energy company Solarcentury…[Also refers to BP]

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11 August 2017

USA: California lawsuits against 37 fossil fuel companies may change landscape of climate change litigation, say lawyers

Author: Nicholas M. Berg, David Nordsieck & Michael R. Littenberg, Ropes & Gray LLP, on Lexology (USA)

“Spate of Suits Brought by California Communities for Sea Level Rise May Change Landscape of Climate Change Litigation”, 8 Aug 2017

A recent trio of cases filed in California state court seek to hold [37] major fossil fuel companies liable for the effects of sea level rise they allege to be caused by climate change…

A spokesperson for one of the defendants has been quoted as saying in response to the lawsuits that “climate change is a complex societal challenge” that “should be addressed through sound government policy and cultural change…not by the courts.” A spokesperson for Norwegian oil & gas company Statoil, also a named defendant, agreed, stating: “previous cases have been dismissed” because climate change “is a political, not judicial, issue.”…

…It is too early to say how trends and decisions abroad may impact climate change litigation brought here in the U.S. against private companies. But the recent trio of California lawsuits may prove to be bellwethers of whether courts in the U.S. have become more receptive to climate change litigation. Even if the claims are not ultimately successful, the theories of liability that these California communities have asserted—some of which are novel in this context—may reshape the landscape of corporate social responsibility litigation in the years to come as society settles on the appropriate role of the courts in responding to climate change.

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Author: Sophie Chapelle, Basta! (France)

« Ouragans, inondations : des multinationales poursuivies en justice », 13 septembre 2017

... Alors que ces catastrophes sèment la dévastation sur leur passage, une nouvelle étude publiée par l'ONG américaine Union of Concerned Scientists (UCS), pointe les 90 principales entreprises productrices de pétrole, gaz, charbon et ciment. Elles sont à l'origine de 57 % de la hausse de la concentration atmosphérique en CO2...

Les plaintes pourraient se multiplier à l'encontre de ces entreprises. Aux États-Unis, deux comtés et une ville californienne...ont déposé plainte en juillet 2017 contre 37 entreprises pétrolières, gazières ou de charbon... Enjeu : obtenir des compensations relatives aux coûts actuels et futurs d'adaptation à la montée du niveau de la mer liée au changement climatique...En 2008, Kivalina, un petit village d'Alaska de 400 habitants, avait intenté un procès contre des compagnies pétrolières, dont BP et Chevron, demandant jusqu'à 400 millions de dollars pour relocaliser leur village face à la hausse du niveau de la mer. Leur dossier avait été rejeté au motif que c'était une question non pas juridique mais politique...

[Fait aussi référence à ExxonMobil, National Iranian Oil Company, Pemex, Shell, Sonatrach, Statoil, Total]

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