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Threatened by Rising Seas, Native Village Seeks Lifeline in Federal District Court

March 26, 2008

Several lawsuits have been filed in federal district court asserting that large emitters of greenhouse gases are responsible for rising sea levels and other harms attributable to global warming. In one of the latest attempts to hold greenhouse gas producers responsible for alleged climate change impacts, a coastal Native village in Alaska recently filed a federal lawsuit alleging that twenty oil, coal, and electric utility companies are responsible for thinning sea ice and increased storm surges that are forcing the village to relocate.[1] In Native Village of Kivalina v. ExxonMobil Corp., et al., the village of Kivalina alleges that the defendants’ greenhouse gas emissions constitute a nuisance under both federal and state law, and seeks to recover monetary damages up to $400 million for the costs of relocating the entire village. Kivalina also alleges that certain defendants conspired to create a misinformation campaign designed “to deceive the public about the science of global warming,” and that the defendants’ civil conspiracy contributed to the town’s injuries. [2]

Previous nuisance lawsuits seeking relief for climate change impacts under federal common law have, so far, been unsuccessful. At least three federal district courts, including the same California federal court where the Kivalina case is pending, have dismissed similar lawsuits on grounds that they presented political questions over which the courts had no jurisdiction.[3] As a result, federal courts have yet to address the merits of climate change nuisance claims – including the potentially vexing issue of causation. The defendants will undoubtedly raise similar jurisdictional challenges, and if prior litigation is any guide, the Kivalina plaintiffs face an uphill battle to recover the costs of relocating their sinking village.

I. Background

The Native Village of Kivalina is located on the tip of a low-lying barrier island on the Chukchi Sea – approximately eighty miles north of the Arctic Circle.[4] The village’s four hundred residents are primarily Inupiat Eskimo, and subsistence activities contribute significantly to the village’s culture and economy.[5]

The village, which has a maximum elevation of ten feet above sea level, is significantly threatened by flooding from storm surges. According to the U.S. Army Corps of Engineers, environmental changes associated with global warming have exacerbated flooding and erosion threats to Kivalina and other coastal villages in the Arctic.[6] Specifically, the Corps noted that sea ice, which offers seasonal protection from storm surges, has been forming later and melting earlier since the early 1980s. As a result, the village is increasingly exposed to winter storms which are increasing in severity and frequency.[7] In 2006, the Corps noted that the situation in Kivalina is “dire” and that the entire town must be relocated within six years.[8] The Corps estimates that relocating the entire village would cost between $123 million and $249 million.[9] The U.S. Government Accountability Office estimates relocation costs between $100 and $400 million.[10]

II. The Complaint

On February 26, 2008, the Native Village of Kivalina and the City of Kivalina filed a lawsuit in the United States District Court for the Northern District of California. The complaint alleges that greenhouse gas emissions from twenty oil, coal, and electric utility corporations are directly responsible for “large quantities of carbon dioxide” from sources including: petroleum exploration, development, and production; petroleum refining, processing, and distribution; coal mining; power generation; natural gas transmission; specialty chemical production; and metal production.[11] The complaint further alleges that the “planet’s natural systems take hundreds of years to absorb carbon dioxide” and as a result, “defendants’ past emissions remain in the atmosphere and are contributing now to Kivalina’s harms and will continue to do so for years to come.”[12]

Kivalina’s first cause of action asserts a public nuisance claim under federal common law, and claims that defendants’ individual and collective greenhouse gas emissions contribute to global warming which is substantially interfering with plaintiffs’ public rights to use and enjoy public and private property. Kivalina further allege that the defendants “knew that their individual greenhouse gas emissions were, in combination with emissions and conduct of others, contributing to global warming and causing injuries.”[13] Similarly, Kivalina allege that defendants’ carbon dioxide emissions constitute private and public nuisance under California state law.

Kivalina also alleges that certain defendants “participated … in an agreement with each other to mislead the public with respect to the science of global warming and to delay public awareness of the issue – so that they could continue to contribute to … the nuisance without demands from the public that they change their behavior.”[14] Plaintiffs’ contend that the alleged civil conspiracy “contributed to and caused Plaintiffs’ injuries.”[15] Finally, plaintiffs allege that the defendants have “engaged in and/or are engaging in tortious acts in concert with each other pursuant to a common design.”[16] Because their injuries are indivisible, plaintiffs seek to hold the defendants jointly and severally liable for monetary expenses and damages resulting from the public nuisance, conspiracy, and concerted action.

III. Common Law Climate Change Litigation

Previous attempts by state and local governments and private parties to seek relief under the common law for harms attributable to climate change have been unsuccessful. Indeed, three federal district courts have dismissed similar lawsuits on grounds that resolving climate change nuisance claims involves non-justiciable political questions. That is, as discussed below, the judges concluded that the complaints raised issues beyond the competency of the federal courts and, hence, concluded that action to combat global warming was more appropriately a question for the political branches of federal government to address.

In Connecticut v. American Electric Power Co., et al., eleven states, the City of New York, and various environmental groups sought an injunction to cap carbon dioxide emissions from six major electric utilities. The plaintiffs contended that carbon dioxide emissions from coal fired power plants constituted a public nuisance, and that the defendants had practical, feasible and economically viable options for reducing carbon dioxide emissions without significantly increasing the cost of electricity.

In September 2005, the United States District Court for the Southern District of New York dismissed the case on grounds that it did not have subject matter jurisdiction because the case presented non-justiciable political questions. Specifically, the court ruled that it could not grant the relief sought by the plaintiffs without making wide-sweeping initial policy determinations, among which were:

  • Determining the appropriate level at which to cap the defendants’ carbon dioxide emissions,
  • Determining the appropriate percentage emission reductions to impose upon the defendants,
  • Creating a schedule to implement carbon dioxide emission reductions,
  • Determining and balancing the implications of such relief on the United States’ ongoing negotiations with other nations concerning global climate change,
  • Assessing and measuring available alternative energy resource, and
  • Determining and balancing the implications of the requested relief on the United States’ energy sufficiency and national security.

Thus, the court found that the “the scope and magnitude of the relief Plaintiffs seek reveals the transcendently legislative nature of [the] litigation.”[17] Further, the court rejected the plaintiffs’ argument that the matter before the court was a simple pollution-as-nuisance claim on the grounds that “none of the pollution-as-nuisance claims cited by Plaintiffs has touched on so many areas of national and international policy.”[18]

In October 2006, the State of California filed a similar lawsuit, California v. General Motors, et al., seeking damages from six automobile manufacturers on grounds that greenhouse gas emissions from vehicles manufactured by the defendants constituted a public nuisance. While plaintiffs in the Connecticut case sought equitable relief and California sought monetary damages, the court nonetheless ruled that “the same justiciability concerns predominate and significantly constrain this Court’s ability to properly adjudicate the current claim.”[19] Therefore, the court was unwilling to “inject[] itself into the global warming thicket at this juncture” because to do so “would require an initial policy determination of the type reserved for the political branches of the government.”[20] The court also cited to the Supreme Court’s groundbreaking decision in Massachusetts v. EPA as standing for the proposition that “the authority to regulate carbon dioxide emissions lies with the federal government, and more specifically with the EPA as set forth in the [Clean Air Act].”[21] The district court further noted that Massachusetts affirmed states’ standing to pursue administrative challenges to EPA’s rulemaking decisions, but “certainly did not sanction the justiciability of … interstate global warming damages tort claims.”[22]

Finally, in August 2007, the U.S. District Court for the Southern District of Mississippi dismissed a class action nuisance lawsuit alleging that greenhouse gas emissions from petrochemical companies exacerbated the severity of, and damages caused by, Hurricane Katrina. In an oral ruling in Comer v. Murphy Oil Co., the court dismissed the plaintiffs’ claims on both non-justiciable political question and standing grounds.[23] Appeals in Connecticut, California, and Murphy Oil are currently pending.[24]

IV. Conclusion

Although none of the district court decisions dismissing climate change nuisance lawsuits have precedential weight, the Kivalina plaintiffs will likely face similar jurisdictional challenges in order to move to the merits of their claims. Even if the district court concludes that the case presents justiciable claims, plaintiffs will likely still face significant hurdles, including standing and causation.[25] While it remains unclear whether Kivalina will prevail, success on the merits could open a floodgate of similar litigation by other coastal jurisdictions that are grappling with the costs of adapting to rising sea levels and other environmental changes attributable to global warming.

For more information, please contact any member of Marten Law Group’s Climate Change/Sustainability practice group.

[1] Native Village of Kivalina v. ExxonMobil Corp., et al., CV 08-1138 (N.D. Cal., Filed Feb. 26, 2008).

[2] Complaint at ¶ 273.

[3] Connecticut v. American Electric Power Co., et al., 406 F. Supp.2d 265 (S.D.N.Y. 2005); California v. General Motors, et al., 2007 U.S. Dist. LEXIS 68547 (Sept. 17, 2007); Comer v. Murphy Oil Co., CV 05-0436, (S.D. Miss. Aug. 30, 2007).

[4] United States Army Corps of Engineers Kivalina Relocation Master Plan at §2.1.1 (June 2006).

[5] Id. at § 2.2.1.

[6] Id. at §1.5.1.

[7] Id.

[8] Id. at §5.5.

[9] Id. at § 5.6.

[10] U.S. Government Accountability Office, “Alaska Native Villages: Most are Affected by Flooding and Erosion, but Few Qualify for Federal Relief” at 32 (Dec. 2003).

[11] Complaint at ¶¶ 171-172.

[12] Id. at ¶ 180.

[13] Id. at ¶ 255.

[14] Id. at ¶ 269.

[15] Id. at ¶ 273.

[16] Id. at ¶ 279.

[17] Connecticut, 406 F. Supp.2d at 272.

[18] Id.

[19] California, 2007 U.S. Dist. LEXIS 68547 at *22-23.

[20] Id. at *29.

[21] Id. at *34 (citing Massachusetts v. EPA, 127 S. Ct. 1438 (2007)).

[22] Id. at *36.

[23] See Comer v. Murphy Oil, et al., CV 05-0436, (S.D. Miss. Aug. 30, 2007).

[24] See Connecticut v. American Electric Power Co. et al., Appeal No. 05-5104 (2d Cir.); California v. General Motors, et al., Appeal No. 07-16908 (9th Cir.); Comer v. Murphy Oil, Appeal No. 07-60756 (5th Cir.).

[25] For a summary discussion of the challenges associated with establishing causation in a climate change nuisance case, see Global Climate Change & U.S. Law at 200-206 (Michael Gerrard, ed., 2007).

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