{"id":1678,"date":"2023-05-26T22:47:14","date_gmt":"2023-05-26T22:47:14","guid":{"rendered":"https:\/\/onlineacademiccommunity.uvic.ca\/climatechangelitigation\/?p=1678"},"modified":"2023-05-26T23:07:34","modified_gmt":"2023-05-26T23:07:34","slug":"kivalina-v-exxonmobil-corp","status":"publish","type":"post","link":"https:\/\/onlineacademiccommunity.uvic.ca\/climatechangelitigation\/2023\/05\/26\/kivalina-v-exxonmobil-corp\/","title":{"rendered":"Kivalina v. ExxonMobil Corp."},"content":{"rendered":"

[et_pb_section fb_built=”1″ fullwidth=”on” _builder_version=”4.16″ _module_preset=”default” custom_padding=”0px|||||” locked=”off” global_colors_info=”{}”][et_pb_fullwidth_header title=”Kivalina v. ExxonMobil Corp.” _builder_version=”4.20.4″ _module_preset=”98eb7887-7236-4709-9b96-0a2b6b3e748d” title_font_size=”65px” min_height=”274px” custom_margin=”|-412px||-412px||” custom_padding=”83px|||||” global_colors_info=”{}”][\/et_pb_fullwidth_header][\/et_pb_section][et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”4.16″ min_height=”2842.1px” global_colors_info=”{}”][et_pb_row admin_label=”row” _builder_version=”4.16″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” global_colors_info=”{}”][et_pb_column type=”4_4″ _builder_version=”4.16″ custom_padding=”|||” global_colors_info=”{}” custom_padding__hover=”|||”][et_pb_text admin_label=”Text” _builder_version=”4.20.4″ header_2_text_color=”#0c71c3″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” min_height=”1124.1px” custom_padding=”||0px|||” hover_enabled=”0″ global_colors_info=”{}” sticky_enabled=”0″]<\/p>\n

<\/a>Case name:\u00a0<\/strong>Native Village of Kivalina v. ExxonMobil Corp.<\/p>\n

Jurisdiction: <\/strong>United States<\/p>\n

Type of claim:<\/strong> Lawsuits against private companies<\/p>\n

Summary of result: <\/strong>Claim dismissed<\/p>\n

Judgement final:<\/strong> Yes<\/p>\n

Court instances:<\/strong>\u00a0<\/strong><\/p>\n\n\n\n\n\n\n
Court<\/strong><\/td>\nType of decision<\/strong><\/td>\nSummary of Decision<\/strong><\/td>\n<\/tr>\n
\n

United States District Court<\/p>\n

Decision of 30 Sept 2009<\/p>\n

File no. 4:08-cv-01138-SBA<\/p>\n<\/td>\n

Decision granting motion to dismiss<\/td>\nClaim dismissed<\/td>\n<\/tr>\n
\n

Ninth Circuit Court of Appeals<\/p>\n

Decision of 21 Sept 2012<\/p>\n

File no. 09-17490<\/p>\n<\/td>\n

Appeal of decision granting motion to dismiss<\/td>\nDistrict court decision affirmed; petition for rehearing denied<\/td>\n<\/tr>\n
\n

United States Supreme Court<\/p>\n

Decision of 20 May 2013<\/p>\n

File no. 12-1072<\/p>\n<\/td>\n

N\/A<\/td>\nPetition to review the decisions of the lower courts (\u201cwrit of certiorari\u201d) denied without comment<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\u00a0<\/strong>Sources of claims:<\/strong> Federal common law public nuisance<\/p>\n

\u00a0<\/strong><\/p>\n

Summary of Judgement<\/u>:<\/strong><\/h1>\n

Introduction<\/u><\/h2>\n

Kivalina is an I\u00f1upiat Eskimo village located on Alaska\u2019s west coast, around 130 kilometres above the Arctic circle. It is built on the tip of a barrier island \u2014 a narrow strip of land that separates a lagoon from the Chukchi Sea. Approximately 400 people reside in the community.<\/p>\n

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]<\/sup><\/a><\/p>\n

Claims<\/u><\/h2>\n

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]<\/sup><\/a><\/p>\n

[\/et_pb_text][et_pb_toggle title=”List of Defendants” open_toggle_text_color=”#FFFFFF” _builder_version=”4.20.4″ _module_preset=”default” title_text_color=”#FFFFFF” title_font=”|700|||||||” body_font=”|300|||||||” body_text_color=”#FFFFFF” use_background_color_gradient=”on” background_color_gradient_stops=”#0c71c3 0%|#2ebadd 100%” background_color_gradient_overlays_image=”on” background_color_gradient_start=”#0c71c3″ background_color_gradient_end=”#2ebadd” background_image=”https:\/\/onlineacademiccommunity.uvic.ca\/climatechangelitigation\/wp-content\/uploads\/sites\/5357\/2021\/07\/Wikimedia-Wind_Turbines2.jpg” background_blend=”multiply” min_height=”59.6px” border_radii=”on|10px|10px|10px|10px” locked=”off” global_colors_info=”{}”]<\/p>\n\n\n\n
\n

ExxonMobil Corporation <\/span><\/p>\n

BP P.L.C.<\/span><\/p>\n

BP America, Inc.<\/span><\/p>\n

BP Products North America, Inc.<\/span><\/p>\n

Chevron Corporation<\/span><\/p>\n

Chevron U.S.A., Inc.<\/span><\/p>\n

ConocoPhilips Company<\/span><\/p>\n

Royal Dutch Shell P.L.C.<\/span><\/p>\n

Shell Oil Company<\/span><\/p>\n

Peabody Energy Corporation<\/span><\/p>\n

The AES Corporation<\/span><\/p>\n

American Electric Power Corporation<\/span><\/p>\n<\/td>\n

\n

American Electric Power Services Corporation<\/span><\/p>\n

DTE Energy Company<\/span><\/p>\n

Duke Energy Corporation<\/span><\/p>\n

Dynergy Holdings, Inc.<\/span><\/p>\n

Edison International<\/span><\/p>\n

MidAmerican Energy Holdings Company<\/span><\/p>\n

Mirant Corporation<\/span><\/p>\n

NRG Energy<\/span><\/p>\n

Pinnacle West Capital Corporation<\/span><\/p>\n

Reliant Energy, Inc.<\/span><\/p>\n

The Southern Company<\/span><\/p>\n

Xcel Energy, Inc.<\/span><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

[\/et_pb_toggle][et_pb_text admin_label=”Text” _builder_version=”4.20.4″ header_2_text_color=”#0c71c3″ background_size=”initial” background_position=”top_left” background_repeat=”repeat” min_height=”818.1px” custom_padding=”||3px|||” global_colors_info=”{}”]<\/p>\n

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.<\/p>\n

First Claim for Relief: Federal Law – Public Nuisance<\/em><\/p>\n

The plaintiffs alleged that the defendants\u2019 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\u2019 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]<\/sup><\/a><\/p>\n

Second Claim for Relief: State Law – Private and Public Nuisance<\/em><\/p>\n

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\u2019 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]<\/sup><\/a><\/p>\n

Third Claim for Relief: State Law – Civil Conspiracy <\/em><\/p>\n

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]<\/sup><\/a><\/p>\n

Fourth Claim for Relief: State Law – Concert of Action<\/em><\/p>\n

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]<\/sup><\/a><\/p>\n

 <\/p>\n

United States District Court<\/u><\/h2>\n

On September 30th, 2009, the US District Court for the Northern District of California dismissed the plaintiffs\u2019 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\u2019 remaining three state law claims for refiling in state court.<\/p>\n

Political Question Doctrine<\/em><\/p>\n

The political question doctrine provides that certain questions, deemed political in nature, must be resolved by the legislature and not the judiciary.[7]<\/sup><\/a><\/p>\n

The US District Court found that the plaintiffs\u2019 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\u2019 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]<\/sup><\/a> The plaintiffs\u2019 claim would also require the court to make a decision about who should bear the cost of global warming \u2014 another policy question the court found to be outside of its jurisdiction.[9]<\/sup><\/a><\/p>\n

Article III Standing<\/em><\/p>\n

The power for courts to hear particular cases is defined in Article III of the US Constitution, which limits federal judicial authority to \u201ccases\u201d and \u201ccontroversies\u201d. To have Article III standing, plaintiffs must establish: (1) a harm (invasion of a legally protected right), (2) causation (traceable connection between the defendant\u2019s conduct and the harm), and (3) redressability (likelihood of the harm being remedied by the relief being sought).[10]<\/sup><\/a><\/p>\n

At the US District Court, the plaintiffs\u2019 claim failed on the question of causation. The court held that the harm suffered was not sufficiently traceable to the defendants\u2019 conduct. The court advanced three main reasons for this decision:<\/p>\n

1. If a plaintiff can show that the defendant\u2019s pollution exceeded statutory limits, the court will presume that there is a \u201csubstantial likelihood\u201d that the defendant caused the plaintiff\u2019s 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\u2019 emissions and the destruction of Kivalina village.[11]<\/sup><\/a><\/p>\n

2. The \u201cseed\u201d of the harm suffered by Kivalina residents could not be traced to any of the defendant companies. Greenhouse gases \u201crapidly mix with the atmosphere\u201d when they are emitted. The court found that it was not possible to trace resulting harm back to a specific source.[12]<\/sup><\/a><\/p>\n

3. Because Kivalina is not located within any of the defendant companies\u2019 \u201czones of discharge\u201d, the court found that the plaintiffs\u2019 claims were too removed in space and time from the defendants\u2019 alleged greenhouse gas emissions to establish sufficient causation.[13]<\/sup><\/a><\/p>\n

The US District Court for the Northern District of California thus dismissed the plaintiffs\u2019 federal claim for nuisance. The Court also dismissed the plaintiffs\u2019 three remaining state law claims for refilling in state court.<\/p>\n

 <\/p>\n

Ninth Circuit Court of Appeals<\/u><\/h2>\n

The Native Village of Kivalina and the City of Kivalina appealed the US District Court\u2019s decision. On September 21st, 2009, the Ninth Circuit Court of Appeal released an opinion affirming the lower court\u2019s 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.<\/p>\n

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\u2019s claims. The plaintiffs submitted a petition for rehearing, but this was denied.<\/p>\n

 <\/p>\n

United States Supreme Court<\/u><\/h2>\n

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\u2019s claim.<\/p>\n

 <\/p>\n

[1]<\/sup><\/a> Plaintiff\u2019s factum, para 4.<\/span><\/p>\n

[2]<\/sup><\/a> Plaintiffs\u2019 factum, at para 1.<\/span><\/p>\n

[3]<\/sup><\/a> Plaintiffs\u2019 factum, at paras 250-261.<\/span><\/p>\n

[4]<\/sup><\/a> Plaintiffs\u2019 factum, at paras 263-267.<\/span><\/p>\n

[5]<\/sup><\/a> Plaintiffs\u2019 factum, at paras 269-277.<\/span><\/p>\n

[6]<\/sup><\/a> Plaintiffs\u2019 factum, at paras 279-282.<\/span><\/p>\n

[7]<\/sup><\/a> District court order, at p.6.<\/span><\/p>\n

[8]<\/sup><\/a> District court order, at p.14.<\/span><\/p>\n

[9]<\/sup><\/a> District court order, at p.15.<\/span><\/p>\n

[10]<\/sup><\/a> District court order, at p.15.<\/span><\/p>\n

[11]<\/sup><\/a> District court order, at p.19.<\/span><\/p>\n

[12]<\/sup><\/a> District court order, at p.20.<\/span><\/p>\n

[13]<\/sup><\/a> District court order, at p.22.<\/span><\/p>\n

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