Situated at the tip of a narrow barrier island off the northwest coast of Alaska is the tiny city of Kivalina. The residents of the village number fewer than 400, almost all of whom are members of the Village of Kivalina, a self-governing tribe of Inupiat Native Alaskans. 

For decades, warming seawaters have been threatening the village’s survival. The villagers depend on a barrier of sea ice that forms each fall to shield their homes and infrastructure from severe coastal storms. In recent years, the ice barrier has been forming later than usual, melting earlier than expected, and is providing less protection from storm activity. The result is severe soil erosion that threatens to wipe Kivalina off the map. A U.S. Government Accountability Office report put it this way: “Remaining on the island is no longer a viable option for the community.” 

The villagers’ only hope for survival is moving inland, and doing so soon. The U.S. Army Corps of Engineers estimates that by 2021, the current site will be overcome by flooding. The estimated cost of moving the village is approximately $100 million—an enormous sum for a community of subsistence hunters. 

In 2009, Kivalina filed a federal lawsuit in the Northern District of California, arguing that energy producers should shoulder the cost of relocating Kivalina. The suit names 21 defendants, including major gas, electric and power companies such as ExxonMobil Corp., BP and Edison International. The suit contends that these companies’ greenhouse gas emissions are responsible for Kivalina’s precarious position. On Sept. 21, a three-judge panel of the 9th Circuit found in Kivalina v. ExxonMobil Corp., et al. that the Environmental Protection Act and the Clean Air Act displaced Kivalina’s tort case. 

“The Supreme Court has already determined that Congress has directly addressed the issue of domestic greenhouse gas emissions from stationary sources and has therefore displaced federal common law,” Judge Sidney Thomas wrote for the unanimous panel.

Political Question

Kivalina’s case was premised on a public nuisance theory—that through excessive carbon emissions, the defendant energy producers had unreasonably interfered with the general public’s right to use and enjoy the earth. 

The Supreme Court recognized plaintiffs’ ability to sue polluters for money damages under federal law in Exxon Shipping Co. v. Baker, a 2008 case arising from the 1989 Exxon Valdez oil spill off the Alaskan coast. The Supreme Court held in that case that the federal Clean Water Act did not bar plaintiffs from asserting claims for punitive damages against Exxon.

According to counsel for Kivalina, Exxon Shipping is in tension with the 2011 case American Electric Power Co. Inc. (AEP) v. Connecticut, in which the Supreme Court rejected the plaintiffs’ claims for injunctive relief from global warming in the form of court-ordered emissions caps. In AEP, the court found that a claim for injunctive relief was a political question that the courts could not address. The 9th Circuit relied on AEP in deciding that Kivalina’s case could not go forward.

Counsel for Kivalina, Matthew Pawa, has filed a petition for en banc review of the 9th Circuit’s decision. He argues that Kivalina is distinguishable from AEP because Kivalina seeks money damages, not an injunction ordering energy producers to stop or reduce their emissions.

“This is a monetary damages case, and Exxon Shipping controls,” says Pawa, president of Massachusetts-based Pawa Law Group. “Interstate pollution is actionable as a public nuisance under federal law.” 

However, the energy producers contend that allowing courts to address cases such as Kivalina would create a regulatory morass, in which courts develop a host of differing standards for liability rather than a uniform regulatory scheme imposed by Congress. 

“Federal courts have no role in regulating emissions under federal common law,” says Damien Schiff, principal attorney for the Pacific Legal Foundation. “A federal court should not be participating in the regulatory response to global warming.”

Gathering Storms

But it’s more fundamental questions that concern potential defendants in this type of case: Who can be held responsible for global warming, and how far should that liability extend? 

“There have been several prominent cases premised on the theory that greenhouse gas emitters could be held liable under a tort cause of action,” says Douglas Halsey, a partner at White & Case. Halsey represented the Washington Legal Foundation as amicus in Kivalina. “None of the cases answer the question of how you can pinpoint which power companies or oil plants need to pay. Can you sue the power plant down the street because it contributed to global warming? It represents an extraordinary stretch of liability.”

More than 10 amici got involved in Kivalina to weigh in on these questions. Several other recent cases have also tested those boundaries. For instance, in Comer v. Murphy Oil USA Inc., Gulf Coast property owners sued energy producers arguing that carbon emissions increased the severity of Hurricane Katrina (see “Global Warming Liability”). Likewise, the plaintiffs in AEP argued that individuals threatened by the impact of global warming should be able to sue to stop carbon emitters from further pollution. Although neither case ultimately was permitted to go forward, plaintiffs continue to try alternate theories to sue energy companies for the impact of global warming. 

“The main problem is a question of fairness,” Schiff says. “Everybody is an emitter of greenhouse gasses. Why should certain defendants bear the remedial brunt of a problem they did not cause?” 

At press time, the 9th Circuit had not ruled on Kivalina’s petition for rehearing. Counsel for Kivalina had not decided whether to seek Supreme Court review.