In a case with potential ramifications for all kinds of polluting utilities, the residents of the Alaska Native coastal village of Kivalina, are suing big corporates, including the oil giant Exxon, holding them responsible for the flooding of their village. The villagers are being forced to relocate consequently.
The lawsuit has been filed in federal court in San Francisco.
Kivalina, an Inupiat village of 400 people on a barrier reef between the Chukchi Sea and two rivers, is torn apart by waves.
The community's economy is based in part on salmon fishing plus subsistence hunting of whale, seal, walrus, and caribou. But sea ice that forms later and melts sooner because of higher temperatures has left them unprotected from fall and winter storm waves and surges that lash coastal communities.
"We are seeing accelerated erosion because of the loss of sea ice," City Administrator Janet Mitchell said in a statement. "We normally have ice starting in October, but now we have open water even into December so our island is not protected from the storms."
Relocation costs have been estimated at $400 million or more.
Reached by phone in Boston, attorney Matt Pawa said damage to Kivalina from global warming had been documented in official government reports by the Army Corps of Engineers and the General Accounting Office, Pawa said.
The suit is the latest effort to hold companies like BP America, Chevron, Peabody Energy, Duke Energy and the Southern Company responsible for the impact of global warming because they emit millions of tons of greenhouse gases, or, in the case of Peabody, mine and market carbon-laden coal that is burned by others. It accused the companies of creating a public nuisance.
In an unusual move, those five companies and three other defendants — the Exxon Mobil Corporation, American Electric Power and the Conoco Phillips Company — are also accused of conspiracy. "There has been a long campaign by power, coal and oil companies to mislead the public about the science of global warming," the suit says. The campaign, it says, contributed "to the public nuisance of global warming by convincing the public at large and the victims of global warming that the process is not man-made when in fact it is."
Some lawyers in the case participated in the long-running litigation against American tobacco companies in the 1990s, and some of the same legal theories echo through the complaint. But the hurdles may be greater than those in the tobacco wars. Global warming is a diffuse worldwide phenomenon; a successful public nuisance case requires that defendants' behavior be directly linked to the harm.
"Public nuisance law has been used from time immemorial to address issues that have not been addressed by the political branches," said Kirsten H. Engel, a law professor at the University of Arizona. But Professor Engel added, "It's very difficult to get a court to jump in here and say that what these companies are doing, and have been doing for years, is unreasonable and creating a public nuisance."
Two similar lawsuits, one brought by California against six automakers and another by a coalition of Eastern states against utility companies, have been dismissed by federal judges. Both judges said the issues involved were political and did not belong in the courts. Those decisions have been appealed.
Reached late Tuesday, spokesmen for three defendants — Jason Cuevas of Southern, Vic Svec of Peabody and Gantt Walton of Exxon Mobil — said they would not comment on the substance of the lawsuit.
But. Svec said, "Rather than unreasonably suing companies for the weather, we would encourage everyone to join Peabody in supporting aggressive development of carbon capture and storage projects and other technologies that help us provide both energy security and carbon solutions."
Of the accusation that Exxon Mobil participated in a disinformation campaign, Walton said, "The recycling of this type of discredited conspiracy theory only diverts attention from the real challenge at hand — how to provide the energy to improve living standards while also reducing greenhouse gas emissions."
"Exxon Mobil is taking action by reducing greenhouse gas emissions in our operations, supporting research into technology breakthroughs and participating in constructive dialogues on policy options with NGOs, industry and policy makers," he added.