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26 Feb 2008

Business & Human Rights Resource Centre

Kivalina lawsuit (re global warming)

Status: CLOSED

Date lawsuit was filed
26 Feb 2008
Location of Filing: United States of America
Location of Incident: United States of America
Type of Litigation: Domestic


AES United States of America Energy
American Electric Power United States of America Energy
bp United Kingdom Oil, gas & coal
Berkshire Hathaway United States of America Diversified/Conglomerates
ConocoPhillips United States of America Oil, gas & coal
Chevron United States of America Oil, gas & coal
Duke Energy United States of America Energy, Renewable energy
Duke Energy United States of America Energy
DTE Energy United States of America Energy
ExxonMobil United States of America Oil, gas & coal
Edison International United States of America Utilities: General
Mirant (part of NRG Energy) United States of America Energy
NRG Energy United States of America Energy
Peabody Energy United States of America Mining
Pinnacle West Capital United States of America Energy
Reliant Energy United States of America Energy
Shell plc United Kingdom Oil, gas & coal
Southern Company United States of America Renewable energy, Energy
Xcel Energy United States of America Utilities: General


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