Global Warming Related Litigation – Waiting For The Landmark Case

Will Kivalina, Alaska bring the landmark climate change lawsuit?Global warming related litigation is bound to be big. But the wait is for that one landmark case that will confirm this. Last September´s State of California´s unsuccessful attempt to get six car companies to produce less polluting cars taught us that patience is the name of the game. Regulations are simply not there yet, so the real fireworks -cases involving breaking the rules- are bound to happen in the future. But a community of Alaskan Eskimos suing 23 oil and energy companies might speed things up.

The lawsuit is modeled on the historic tobacco case that ended in the biggest ever settlement in US civil law history. It involves 410 Inupiat Eskimo inhabitants of the island of Kivalina. These people live some 70 miles north of the Arctic Circle on the tip of a six-mile barrier reef between the Chukchi Sea and the Kivalina and Wulik Rivers on the Northwest coast of Alaska. They call their town K-vill and want to live there for ever, since they´ve been out there since time immemorial. And because all that is getting a bit of a push, they´re suing 23 corporations in the oil, energy and coal sectors, for sustaining global warming related injury to K-vill. The companies include (pdf) Exxon Mobil, BP, and Conoco Phillips, all three of which have operations in the near vicinity of the North Alaskan community.

 It’s the winter storms to which the K-vill population is most vulnerable. They have witnessed worse effects ever since their winters have become shorter due to warmer weather. The K-vill inhabutants got that officially confirmed by the US Army Corps of Engineers which concluded in 2006 that Kivalina is exposed to risks which are directly climate change related because the melted seas leave them much more vulnerable to winter storms. According to estimates from the US Army Corps of Engineers, relocation costs will run up a bill of $95 million. Other estimates have gone as high as $400 million.

The permafrost melts, erosion happens, and Kivalina's way of life is threatenedBut by far the most vicious attack on the companies is the accusation that eight of the firms (primarily Exxon Mobil, but also American Electric Power, BP America, Chevron, Conoco-Phillips, Duke Energy, Peabody Energy, and Southern Company) are conspiring to cover up the threat of man-made climate change. A similar accusation is what turned the tide in the tobacco case

"This arguably eliminates the need for a judge to determine how much greenhouse-gas production – from refining fossil fuel and burning it to produce energy – is acceptable", according to Stephan Faris, the author of Forecast, a book about climate change. In an article in The Atlantist, Faris quotes Steve Berman as saying "You’re not asking the court to evaluate the reasonableness of the conduct. You’re asking a court to evaluate if somebody conspired to lie."

This is what makes the case different from preceding climate change lawsuits and it builds on the accusation that oil companies influences scientists in ways similar to the tactics employed by the tobacco companies. For instance, the Union of Concerned Scientists, an environmental advocacy group, is particularly vigorous on the case of ExxonMobil which it says is mimicking cigarette manufacturers’ strategy of covertly establishing "front" groups. This way, the company promotes writers who exploit scientific uncertainties. ExxonMobil reportedly funneled as much as $16 million  to think tanks that are accused of disinforming the public on global warming just so the companies can continue to contribute to global warming unpunished.

Whether the inhabitants of K-vill will be able to book similar success that the many U.S. states booked in the tobacco suit remains up in the air. But it seems their lawyers are armed to the teeth. Both Susman and Berman have various high profile climate change related cases on their resume. What´s more, the seriousness of the Kivalina complaints has definitely sunk in with US officials. Both state and federal organizations are outlining plans to improve shoreline protection for the community by combating erosion. Last week, Kivalina was one of six areas in Alaska that received state funding to the tune of $13 million to revamp its shoreline. 

The accused companies all have been sparse in their comments to the press about the case so there´s little information around about how they’re likely to handle the courtcase. Thus far all of the global warming related court cases that have passed through US courts except the polar bear protection lawsuit, have tackled issues that are premature simply because regulation isn’t up to speed or doesn’t even exist yet.

Last September´s State of California case against six automobile companies highlights where most global warming cases get stuck. Californian Judge Martin J. Jenkins would not take the case on before proper state regulation has been drawn up. State governments do best to address climate change through their legislatures and executive branches but not through the courts, says Jenkins. “The court is left without guidance in determining what is an unreasonable contribution to the sum of carbon dioxide in the earth’s atmosphere, or in determining who should bear the costs associated with global climate change that admittedly result from multiple sources around the globe," judge Jenkins wrote in a statement. That´s what sums up the state of play in most global warming litigation issues. Until K-vill rose to prominence of course.

The tribe, which is recognized by Federal US authorities, filed the case recently at the U.S. District Court in San Francisco. What makes experts convinced it’s going to result in fireworks is that K-vill´s lawyers aren´t just your average lawyers; they´re superb ones. They´re the guys that broke the back of the tobacco companies, Steve Susman and Steve Berman. (Susman represented Philip Morris, Berman the 13 states.)

The K-vill case has all the hallmarks of another blockbuster. Just like Indiana Jones, it´s a decade on from the cigarette case. But unlike Indiana Jones, the two opposing parties are now on the same side of the fence. Nevertheless, the case could make as much history and is in the same ballpark in terms of the possible implications a guilty verdict might have. 

The villagers claim that they are suffering the consequences of global warming due to actions of the 23 energy and oil companies, many of which are known as the US´ largest emitters of greenhouse gas. K-vill wants damage payouts so that all its inhabitants can begin to relocate to safer ground. There’s some hurry to get moving, they say, because severe storms have started to chip away at the wall around their town. K-vill´s administrator, Janet Mitchell, said in a press statement when the lawsuit was filed "we need to relocate now before we lose lives." 

The most recent climate related problem that’s arisen for the Kivalina population has been the spontaneous development of a massive sinkhole in their their drink water source, the Wulik River. The sink hole is 100 yards in length and 300 feet inland and the seepage, which appears to be toxic, grows steadily. It is an instant problem because the Kivalina people are used to drinking the water without processing it. Every year K-ville inhabitants fill two tanks that hold 500,000 and 670,000 gallons of water between July and August, when the water has cleared enough for consumption. The tanks last the population’s 86 residential houses (most of whom don’t buy bottled water) for a year. 

The toxic sinkhole comes on top of significant pollution caused by Teck Cominco’s Red Dog Mines, which lie 52 miles east of Kivalina. And Mitchell says the malfunctioning of underground freezer storage caches is also related to climate change. "Kivalina has had storage caches which we call ‘siglauqs’ since time immoral and Kivalinas is located across the channel from our town.  In the past, because we didn’t have electricity to begin with, our ancestors have had to be innovative and create a way to make sure their food gathered in the summer months remained fresh", according to Mitchell. "They created underground storage caches and it had to be done on land that had perma frost underneath. On June 25 [2007], my father went to the storage cache where he stores his summer catch to make it ready for storage. What he discovered there was five feet of water covering the whole bottom of the storage area. The permafrost has already begun to melt so that storage cache is no longer usable", she said.

Mitchell is one of a handful of people employed in official jobs on the island. She and her co-villagers are brilliant material for a lawsuit against polluting corporations. The community website Mitchell maintains depicts a portrait of her town that signals isolation and purity. In the city of Kivalina there are no hotels, restaurants, movie theatres, or recreation centers. The only public facilities are the city office/tribal office, a US Post Office, an Episcopal Church, a Friends Church, a bingo hall, a clinic, a washeteria, a school, a general store owned by ANICA, Inc., an AVEC electric power plant, a heavy equipment building, an airport, and an armory building. Tourists coming to town find accommodation in the school. There’s a part time police officer. None of the people who´s names are mentioned on the website are listed on Facebook and I doubt you can trace them on any people search engine either.

Despite all the simplicity, moving the inhabitants will take a few years at the very least. In their official complaint, the Kivalina inhabitants cite this official source and also documents by the official US government Accountability Office, saying that “[g]lobal warming is destroying Kivalina through the melting of Arctic sea ice that formerly protected the village from winter storms… [and] the village thus must be relocated soon or be abandoned and cease to exist.”


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