Case name: Native Village of Kivalina v. ExxonMobil Corp.

Jurisdiction: United States

Type of claim: Lawsuits against private companies

Summary of result: Claim dismissed

Judgement final: Yes

Court instances: 

 Sources of claims: Federal common law public nuisance

Summary of Judgement:

Introduction

Kivalina is an Iñupiat Eskimo village located on Alaska’s west coast, around 130 kilometres above the Arctic circle. It is built on the tip of a barrier island — a narrow strip of land that separates a lagoon from the Chukchi Sea. Approximately 400 people reside in the community.

Over the last few decades, the region has become dangerously threatened by sea level rise and coastal erosion. The community was previously protected from storm waves by the surrounding ice and permafrost. However, ice is now forming later and melting earlier each year, leading to increased flooding during storms. Homes and infrastructure are in imminent danger of collapsing into the sea. Unless the village is relocated soon, it will likely be submerged.^[1]

Claims

On February 26th, 2008, the Native Village of Kivalina and the City of Kivalina, the two governing bodies of the Kivalina community, filed a complaint against 24 oil, energy, and utility companies (many of the largest greenhouse gases emitters in the United States) to recover damages for the harm caused by global warming. The plaintiffs based their claims on estimates provided by the US Army Corps of Engineers and the US Government Accountability Office, which found that relocating the community due to climate change would cost between $95 million and $400 million.^[2]

The plaintiffs pursued four claims for relief. First, they sought to hold the defendants liable for creating, contributing to, and maintaining a public nuisance (global warming). They brought this claim under federal common law and, in the alternative, under state law. Federal common law applies to federal questions that are not answered by statutes. Based on the ambient and transboundary nature of emissions, federal common law can often apply to pollution suits. The plaintiffs also sought to hold the defendants liable for civil conspiracy and concert of action under state law.

First Claim for Relief: Federal Law – Public Nuisance

The plaintiffs alleged that the defendants’ greenhouse gas emissions constituted a substantial and unreasonable interference with the right to use and enjoy public and private property in Kivalina. The plaintiffs claimed that the defendants’ emissions were a direct and proximate cause the destruction of said property. As a result of this nuisance, the community would have to relocate at a cost of millions of dollars. The plaintiffs asserted that the defendants knew or ought to have known that their emissions would have such devastating impacts on vulnerable coastal communities. Thus, they claimed that, intentionally or negligently, the defendants created, contributed to, and/or maintained public nuisance.^[3]

Second Claim for Relief: State Law – Private and Public Nuisance

If federal common law were not to apply, the plaintiffs sought to hold the defendants liable under the state statutory and/or common law of private and public nuisance. They asserted that the defendants’ actions substantially and unreasonably interfered with the use and enjoyment of private and public property in Kivalina, and/or constituted a substantial annoyance, inconvenience, or injury to the public. The harm caused included millions of dollars of lost property value and revenue, and the millions of dollars necessary to relocate the village.^[4]

Third Claim for Relief: State Law – Civil Conspiracy

The plaintiffs also alleged that eight of the defendants conspired to spread misinformation and create a false scientific debate about global warming. The plaintiffs claimed that these actions were a direct and proximate cause of the harm they suffered.^[5]

Fourth Claim for Relief: State Law – Concert of Action

The plaintiffs also claimed that the defendants were engaged in concert, pursuant to a common design, to create, contribute to, and maintain the public nuisance that has resulted from global warming. The plaintiffs alleged that the defendants should therefore be held jointly and severally liable for the harms suffered in Kivalina.^[6]

United States District Court

On September 30th, 2009, the US District Court for the Northern District of California dismissed the plaintiffs’ federal claim for nuisance based on (a) the political question doctrine and (b) lack of standing under Article III of the US Constitution. The Court also dismissed the plaintiffs’ remaining three state law claims for refiling in state court.

Political Question Doctrine

The political question doctrine provides that certain questions, deemed political in nature, must be resolved by the legislature and not the judiciary.^[7]

The US District Court found that the plaintiffs’ federal nuisance claim required a policy judgement rather than legal analysis. The claim would require the court to balance the social utility of the defendants’ conduct against the harm suffered by the plaintiffs. This would inherently entail a determination of what the acceptable limit on greenhouse gas emissions should be. The court held that the regulation of greenhouse gas emissions was a legislative and not judicial issue.^[8] The plaintiffs’ claim would also require the court to make a decision about who should bear the cost of global warming — another policy question the court found to be outside of its jurisdiction.^[9]

Article III Standing

The power for courts to hear particular cases is defined in Article III of the US Constitution, which limits federal judicial authority to “cases” and “controversies”. To have Article III standing, plaintiffs must establish: (1) a harm (invasion of a legally protected right), (2) causation (traceable connection between the defendant’s conduct and the harm), and (3) redressability (likelihood of the harm being remedied by the relief being sought).^[10]

At the US District Court, the plaintiffs’ claim failed on the question of causation. The court held that the harm suffered was not sufficiently traceable to the defendants’ conduct. The court advanced three main reasons for this decision:

1. If a plaintiff can show that the defendant’s pollution exceeded statutory limits, the court will presume that there is a “substantial likelihood” that the defendant caused the plaintiff’s harm (even if pollution is difficult to trace, and even if other parties have emitted similar levels of pollution). This presumption could not apply here, as there were no federal limits on the discharge of greenhouse gases. In this case, the plaintiffs would have had to establish a more traceable connection between the defendants’ emissions and the destruction of Kivalina village.^[11]

2. The “seed” of the harm suffered by Kivalina residents could not be traced to any of the defendant companies. Greenhouse gases “rapidly mix with the atmosphere” when they are emitted. The court found that it was not possible to trace resulting harm back to a specific source.^[12]

3. Because Kivalina is not located within any of the defendant companies’ “zones of discharge”, the court found that the plaintiffs’ claims were too removed in space and time from the defendants’ alleged greenhouse gas emissions to establish sufficient causation.^[13]

The US District Court for the Northern District of California thus dismissed the plaintiffs’ federal claim for nuisance. The Court also dismissed the plaintiffs’ three remaining state law claims for refilling in state court.

Ninth Circuit Court of Appeals

The Native Village of Kivalina and the City of Kivalina appealed the US District Court’s decision. On September 21st, 2009, the Ninth Circuit Court of Appeal released an opinion affirming the lower court’s dismissal of the case, though not based on the political question doctrine or on Article III standing. The Court of Appeal dismissed the claim based on the doctrine of displacement.

Parties can bring a claim under federal common law nuisance only when the issue is not already addressed in a federal statute. When legislation governing the activity in question exist, and the defendants have complied with that legislation, a federal common law claim will likely fail. The Court of Appeal held that the federal Clean Air Act, which regulates greenhouse gas emissions, displaced Kivalina’s claims. The plaintiffs submitted a petition for rehearing, but this was denied.

United States Supreme Court

On February 25th, 2013, the Native Village of Kivalina and the City of Kivalina filed a petition for writ of certiorari with the US Supreme Court, seeking judicial review of the decisions of the lower courts. The Supreme Court denied the petition on May 20th, 2013, without comment, effectively ending the Kivalina community’s claim.

^[1] Plaintiff’s factum, para 4.

^[2] Plaintiffs’ factum, at para 1.

^[3] Plaintiffs’ factum, at paras 250-261.

^[4] Plaintiffs’ factum, at paras 263-267.

^[5] Plaintiffs’ factum, at paras 269-277.

^[6] Plaintiffs’ factum, at paras 279-282.

^[7] District court order, at p.6.

^[8] District court order, at p.14.

^[9] District court order, at p.15.

^[10] District court order, at p.15.

^[11] District court order, at p.19.

^[12] District court order, at p.20.

^[13] District court order, at p.22.