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Attorneys from both sides of the epic 1990s litigation between state attorneys general and the tobacco industry are representing a remote Alaskan village against two dozen oil, coal and electric power producers for continuing unrestricted emissions of carbon dioxide years after a global scientific consensus warned against it. Steve Berman of Hagens Berman Sobol Shapiro in Seattle, who represented Washington state in the cigarette litigation, and Steve Susman of Susman Godrey in Houston, who represented Philip Morris USA Inc., have joined a group of firms representing Kivalina, an Inupiat Native Alaskan community of about 400 people on the Arctic Ocean in northwest Alaska. The suit cites two U.S. government reports to back its allegations that coastal erosion and flooding due to global warming is compelling relocation of the town. Relocation costs are estimated up to $400 million. Native Village of Kivalina and City of Kivalina v. Exxon Mobil, No. CV 08-1138-SBA (N.D. Calif.). “Certain of the defendants conspired to deceive the public with respect to the existence of global warming,” Berman said. “We borrowed from our tobacco playbook in which we alleged the tobacco industry did the same thing to delay public pressure to change our public [smoking] behavior.” ‘Parens patrie’ Matthew Pawa of the Law Offices of Matthew F. Pawa in Newton Centre, Mass., said he invited Berman and Susman to join the suit because he’d heard both were interested in applying to global warming the legal doctrine of “parens patrie,” which states used to argue they had standing to bring suit on behalf of their residents against tobacco companies. Pawa said it is likely that, as public costs rise to adjust to changing climate, political entities will bring an increasing number of suits against the fossil fuel industry. “Unfortunately, global warming victims are emerging from all over the world,” Pawa said. “They are going to demand compensation because global warming is beginning to take its toll.” Susman said he was approached in 1994 to represent Massachusetts against the tobacco industry but � citing the conventional wisdom at the time that the tobacco companies were unbeatable and would never settle and that there was no basis upon which the states could recover � he declined. Susman compares himself to Stu Sutcliffe, the musician who left the Beatles in 1962, just before the band became an international sensation. “At the time I was, let’s say, more risk-adverse than I am now,” Susman said. “I enjoyed representing Philip Morris and the tobacco companies, but it was not nearly as remunerative [as it would have been] had I represented the states suing them. And those plaintiff lawyers, pursuing untested theories, changed public health around the world forever.” A few months after Hurricane Katrina, Susman attended a conference on global warming organized by his wife, Ellen Susman, and sponsored by the Yale School of Forestry & Environmental Studies. He concluded that the theories used successfully by states against tobacco companies to recover avoidable health care costs applied to global warming. Kivalina has strong scientific evidence in reports by the Army Corps of Engineers and the U.S. Government Accountability Office that climate change, spurred by carbon dioxide emissions, is destroying the town, he said. “This is a better case than the tobacco case,” Susman said. “People choose to smoke. The 400 people living in Kivalina didn’t do a thing that changed the climate.” Rob Verchick, professor of environmental law at Loyola University New Orleans School of Law, said the case is “definitely pushing the envelope” in applying well-tested legal theories. “The allegations fit logically into a public nuisance framework,” he wrote in an e-mail. “This reminds me of the tobacco litigation in the 1990s in which cigarette manufacturers insisted that direct causation to a specific harm could never be established. They eventually lost that debate. One day the oil companies might lose too.” The 24 defendants named in the action included Exxon Mobil Corp., Southern Co., Peabody Energy Corp. and Chevron Corp. None of the defendants responded to requests for comment.

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