Kivalina, Alaska is being swallowed by the sea.Tiny Kivalina, Alaska, its very existence threatened by climate change, pressed the first climate liability case. It echoes in the California suits being brought today. Photo credit: Wikimedia

By Dana Drugmand

When a remote native Alaskan village could find no other relief from damaging coastal storms and erosion that continuously swallowed its land, it filed a nuisance lawsuit against major energy producers and carbon emitters in federal court. That 2008 suit, Native Village of Kivalina v. ExxonMobil et al. was a landmark case in attempting to hold fossil fuel companies accountable for the impacts of the global warming overwhelmingly driven by its products. Even though the case ultimately failed, it holds important lessons for the latest wave of tort-based climate litigation.

“The takeaway’s pretty clear,” said Matt Pawa, lead attorney for plaintiffs in the Kivalina case.  “It’s time to focus on state law.”

Pawa is currently involved in the lawsuits filed by  San Francisco and Oakland against five large petroleum companies last September in California state court. And he is fighting to keep them there. Because the fossil fuel companies also learned from Kivalina, they petitioned to move the cases to federal district court, but plaintiffs are slated to argue that they should be heard in state court where they were initially filed.

“State law typically applies to product-related type claims,” Pawa said. “In our current case, this products claim is focused on the production and promotion of the product.”

The jurisdictional battle may determine the cases’ ultimate success. That makes these hearings perhaps the most important in the case. The first one comes Thursday, when San Francisco and Oakland will make their case for remanding to state court in front of District Judge William Alsup in the Northern District of California court in San Francisco. There are eight cities and counties in California that have filed these suits, all in state court. New York City is also suing Big Oil, while Los Angeles and Boulder, Colorado are considering following suit.    

To further understand theses current climate liability lawsuits, it helps to look back at the Kivalina case for context.

Climate Impacts Impossible to Ignore

The city and native village of Kivalina, located some 80 miles north of the Arctic Circle in northwest Alaska, is one of the most vulnerable spots in the U.S. to imminent inundation. Like a northern version of Miami Beach, Kivalina is a barrier island – a thin strip of land surrounded by water. But there are no condos or swanky clubs in Kivalina. There is not even a road or bridge connecting it to the mainland.

The Iñupiat people who inhabit it live a largely subsistence lifestyle, their survival and identity intimately tied to their environment. But climate change threatens all that. The Arctic has been warming twice as fast as the global average. In Kivalina, sea ice is disappearing earlier and forming later in the year, leaving the land more vulnerable to erosion and storms. One such storm in 2004 swept away a significant chunk of the island.

Researcher Christine Shearer, author of Kivalina: A Climate Change Story, saw the impacts first-hand. “To me the situation was much worse than I anticipated before I got there,” she told Climate Liability News in an interview. Shearer traveled to Kivalina in 2008 to learn more about the lawsuit against Exxon.

Heather Kendall-Miller, an Anchorage-based attorney at the nonprofit Native American Rights Fund (NARF), was one of the counsels for plaintiffs in that case. She had worked with native Alaskan tribes for years and said the effects of climate change in the region were impossible to ignore.

“It was because of growing awareness of impacts to my clients that I started to pay attention to climate science,” she said.

“Upon learning that many villages along Alaska’s coastline were eroding into the ocean necessitating relocation, NARF’s Alaska office took on the challenge of developing new litigation that would seek compensation from industry polluters for the cost of village relocation,” Kendall-Miller stated in a 2008 press release.

In an interview with CLN, she explained that Pawa had contacted her office expressing interest in bringing this type of litigation. The firm that he now practices with, Hagens Berman,  had been involved in the Exxon Valdez oil spill litigation—a case that he thought was relevant to the liability claims for the Kivalina plaintiffs.

The Lawsuit

The defendants, which included the big five oil companies, 14 utility companies and the coal giant Peabody, were charged with creating a public nuisance in the form of carbon emissions that caused damage to Kivalina. The nuisance claim was grounded in federal common law and sought compensatory damages.

The district court initially dismissed the case because it believed the issue should be resolved by the executive or legislative branch. The district court also ruled that plaintiffs lacked standing because they could not prove the companies directly caused the harms.

In September 2012, the Ninth Circuit Court of Appeals also decided against the plaintiffs citing the “displacement doctrine,” finding that the Clean Air Act displaces federal common law in regards to climate change. Its finding stemmed from the Supreme Court case American Electric Power v. Connecticut of 2011, in which the court rejected a coalition of states’ attempt to force power companies to curtail emissions. In that opinion, the court reasoned that EPA authority to regulate emissions per the Clean Air Act displaces federal common law claims seeking abatement of emissions.

The key difference between that case and Kivalina was the type of remedy sought. Kivalina wanted monetary damages, while  in AEP, an abatement of emissions was sought. But the Ninth Circuit determined in Kivalina that the type of remedy sought is irrelevant in applying displacement. In other words, since the Clean Air Act  displaced the federal common law nuisance claim in AEP, it would also displace that same nuisance claim asserted in Kivalina, regardless of remedy. The Ninth Circuit used another Supreme Court case, Middlesex County Sewerage Authority v. Sea Clammers, in concluding that displacement of a cause of action implies displacement of all remedies.

The Kivalina plaintiffs did have secondary claims of both conspiracy and state common law of public nuisance. The court never examined the conspiracy claim, which alleged that the fossil fuel companies deliberately misled the public on the science of climate change. The court also left the state law claim untouched, preserving the option for plaintiffs to re-file in state court.

The Lesson: Focus on State Common Law

According to Shearer, the Kivalina lawsuit was significant in that it was among the first climate suits to raise the issue of deception by fossil fuel companies. “I think it was a pretty successful lawsuit,” she said. “Even though it was dismissed, it helped raise awareness about what fossil fuel companies had done and continue to do in misleading people.”

She said it also helped get the ball rolling for the new climate lawsuits seeking damages. “I think lawsuits like that are going to continue, and I think Kivalina helped to get that going.”

Pawa is now helping to guide some of these new climate change nuisance suits, using the lessons he learned in Kivalina. “Certainly the legislative and executive branches are not in the business of resolving cases seeking compensatory damages or abatement funds. The right place for those cases is the courts, and in this case, according to the Ninth Circuit, state law would apply,” he said.

Climate law expert and Vermont Law School professor Patrick Parenteau said that while Kivalina did seemingly shut the door to bringing claims for climate impacts under federal common law, it said nothing about state common law on which the current California climate cases now rest.

“On the contrary to what I hear from the industry side, [Kivalina] really did not foreclose the California cases,” he said. “The trick in these cases is which state law is going to apply.”

The California plaintiffs want their home state law applied. Even if the industry defendants succeed in securing federal court advantage, however, Parenteau said the plaintiffs still could  prevail.

“I think the court is going to have to apply something called the Restatement of Torts,” he said. This is basically a compilation and synthesis of case law, providing judiciaries a guide of standards in regards to tort claims. According to Parenteau, the most current version of this compilation leans in the California plaintiffs’ favor. “It basically says if you have a major contributor to a problem, which is what the carbon majors are, that’s enough to trigger liability.”

“That’s what the cities are looking for,” he added. “They want a court to rule that these individual defendants, both because of the size of the contribution of carbon pollution they represent and because they’ve known about this problem, lied about this problem, etc., for those reasons under the Restatement of Torts (3rd), they’re liable. That will get around this difficult problem of which state law would you apply.”

Kivalina Relocation – An Ongoing Struggle

Whatever the outcome of these cases, climate impacts are not going away. Low-income and indigenous communities in particular, like Kivalina, lack the resources to pay for adaptation or relocation.

It is estimated that that relocating Kivalina would cost up to $400 million. “It remains an ongoing challenge to come up with the resources and funds needed to help places like Kivalina relocate,” said Kendall-Miller.

The Army Corps of Engineers did build a temporary sea wall to buy the native villagers some time, said Shearer, but the wall does not protect against flooding. In the absence of any federal relocation policy, Kivalina has been trying to piece together grants from different groups and agencies, and is working with the State of Alaska Department of Transportation on an evacuation road project.

“The people continue to pursue relocation, pursue an evacuation road,” said Shearer. “They’re really determined to move together as a community and maintain their culture and their traditional ways.”

And they will be most interested observers of how the California suits fare.