Kivalina: A Climate Change Story
Haymarket Books, 2011
The [2000 U.S. National Assessment Synthesis Report] noted that climate change was already affecting life in Alaska Native villages.  In December 2003, the U.S. Government Accountability Office (GAO) went on to report that most of Alaska’s more than two hundred native villages were affected to some degree by flooding and erosion, with thirty-one facing imminent threats “due in part to rising temperatures that cause protective shore ice to form later in the year, leaving the villages vulnerable to storms.”
As with the pollution from Red Dog Mine, the people of Kivalina had reported the effects of warming temperatures, but had not received any concrete assistance to mitigate risks to their safety from erosion. They had voted to relocate in 1992, petitioned various government bodies to begin a relocation process, and hit a dead end. Meanwhile the need to relocate grew more urgent as the effects of climate change accelerated the village’s erosion and left residents increasingly in danger from storms.
Similar effects were impacting indigenous communities throughout the Arctic. In 2005, an Inuit petition was filed with the Inter-American Commission on Human Rights, created in 1959 to uphold and investigate violations of the 1948 American Declaration of the Rights and Duties of Man. The Inuit petition alleged the U.S. government was violating the human rights of Arctic people by refusing to limit greenhouse gas emissions. Seeking caps on U.S. emissions, the petition also called for the commission to produce plans to protect Inuit culture and resources through adaptation assistance. The petition was rejected one year later by the commission, which maintained that the charges outlined in the petition were insufficiently supported for making a determination.
The same year, the U.S. Army Corps of Engineers issued a report stating the situation in Kivalina was “dire” and that the entire town needed to be immediately relocated,  at an estimated cost ranging from $100 million to $400 million, according to various government estimates. To counter the government stalling and corporate indifference, residents of the village began debating other options for protecting themselves. [Center for Race Poverty and the Environment lawyer Luke] Cole suggested a climate change lawsuit, positioning the situation within an environmental justice framework, as the only way to give the people of Kivalina a voice. “No one asked the people of Kivalina, y’know, ‘Would you like to have your environment ruined?’ A lawsuit is the only way they have of expressing themselves in the environmental justice process,” Cole explained. “It’s late in the day, it’s inadequate, it’s a blunt tool, it’s the only tool they have left.”
Cole spoke to lawyer Heather Kendall-Miller of the Native American Rights Fund (NARF), which provides legal representation for Native Americans. Working in Anchorage, Kendall-Miller was acutely aware of the climate change issues facing native villages and interested in branching out legally in that area, but had not yet found a way. “My primary line of work is litigating subsistence and tribal sovereignty cases. Climate change is outside [NARF’s] scope, but it became necessary when we saw how drastic the effects were on the people that we work with and serve,” she said. She noted that while the federal government has a trust relationship with Kivalina, it would be difficult to legally enforce federal assistance with the village’s relocation, making her receptive to pursuing the case as a matter of environmental pollution and public nuisance.
Kendall-Miller had already been approached about such a possibility by Matt Pawa, a lawyer at a small Boston firm that had filed the first federal global warming nuisance case with attorneys general in Connecticut v. AEP. Together Cole, Kendall-Miller, and Pawa considered filing a claim on behalf of Kivalina and discussed this option with the village. After several meetings, the Kivalina City and Tribal Councils agreed. Pawa then recruited Steve Berman and Steve Susman, both high-profile litigators involved in the state tobacco lawsuits – Berman on the side of states and Susman on the side of tobacco companies – as well as several other public rights lawyers.
On February 26, 2008, Kivalina, in both capacities as a native village and city, filed a legal claim in the United States District Court for the Northern District of California against twenty-four oil, electricity, and coal companies: ExxonMobil, BP, BP America, BP Products, Chevron Corporation, Chevron USA, ConocoPhillips, Royal Dutch Shell, Shell Oil, Peabody Energy, AES Corporation, American Electric Power Company, American Electric Power Services Corporation, DTE Energy Company, Duke Energy, Dynegy Holdings, Edison International, MidAmerican Energy Holdings Company, Mirant Corporation, NRG Energy, Pinnacle West Capital Corporation, Reliant Energy, Southern Company, and Xcel Energy. The claim alleges that the defendants are significant contributors of greenhouse gas emissions, exacerbating global warming and the erosion in Kivalina, constituting a public nuisance under federal and state common law. The suit seeks damages of up to $400 million, the estimated cost of relocating the village. In addition, there are secondary claims of conspiracy and concert of action against ExxonMobil, AEP, BP, Chevron, ConocoPhillips, Duke, Peabody, and Southern Company for conspiring to create a false scientific debate about climate change to deceive the public. The defendants in the first claim were selected for being among the largest emitters of greenhouse gases, while those in the secondary claim were selected for, in the words of Luke Cole, “going above and beyond” in their efforts to deceive the public about global warming.
The lawsuit cuts across many aspects of climate change, as illustrated by the different but interconnected motivations of the lawyers who filed the claim. Steve Susman, for example, is particularly focused on addressing climate change, and holding fossil fuel companies accountable, similar to the tobacco lawsuits. His involvement in the Kivalina case is notable both because he is a high-profile litigator who charges up to a thousand dollars an hour for his services, and because he was involved in the tobacco suits – on the side of tobacco. In interviews, Susman has attributed his interest in global warming to his wife who, during a May 2009 interview, was correcting him or adding tidbits in the background as he and I spoke. He briefly recapped his growing interest in climate change: “In the fall of 2005, I was with my wife and helping her organize a Yale conference on climate change. I went with her and didn’t know anything about it and started reading materials on the plane and it sounded very interesting to me, it sounded a lot like tobacco had sounded, and so I just right then and there, and a bit at my wife’s urging, decided it was something I was going to get interested in.” Shortly afterward, Susman worked pro bono to help thirty-seven Texas cities stop the construction of coal-burning electric utility plants in the state.
Susman saw many parallels with the tobacco suits in the form of the misinformation campaigns, but also recognized that such tactics can be hard to prosecute:
“It’s very much a legal gray area. Companies enjoy a First Amendment right to petition the government and speak their minds, it’s part of free speech. Even if they are saying it in conspiracy and collusion with one another, as long as they are saying things, expressing opinions, it is protected by the First Amendment. And that’s clearly an argument [defendant companies] are making against us in this case, that we are just complaining about something that is protected by the First Amendment, the Noerr-Pennington doctrine, so I think it is very difficult under existing law to hold companies responsible for promulgating bad science. Laws can be passed but right now it is very difficult to hold people responsible for promulgating junk science. However, to the extent that there is a good faith belief on their part, they enjoy that right, so we could try to prove they knew the information they were spreading was false and being used to deliberately influence public opinion- that would override their First Amendment rights.”
This is why, Susman said, lawyers prosecuting such cases strive to reach the discovery phase of a lawsuit in order to demonstrate industry knowledge of the falsity of their claims. Indeed, public health historians Barry Castleman, David Rosner, Gerald Markowitz, and David Michaels all affirm such documents have been crucial to their research. Without documentation, allegations that corporations know they are misrepresenting science remain in the realm of speculation, in both the court of law and, in many ways, the court of public opinion.
Steve Berman, who helped gain the release of the internal documents of tobacco manufacturer Liggett and secure the industry’s settlement of the state suits leading up to the master national settlement,  believes concrete evidence of industry knowledge is an important factor but not in itself sufficient to bring about successful liability: “The first forty years of tobacco, they won every case, despite evidence of harm.” The first step to a successful claim, he said, was having a case reach the discovery and trial stage, which was being prevented by judges invoking the political question doctrine [in the previous climate change public nuisance lawsuits]: “What is or isn’t a nuisance is something that courts have struggled with for over a hundred years. If you want to point to a particular law in effect, that is a preemption issue, but I don’t think a proper analysis is the political question. With a political question, everything gets knocked out, you don’t have to deal with the other issues.”
Defendant companies, in their response, split up into three groups: power, oil, and coal. Each group filed multiple motions to dismiss, employing similar arguments, most of them common to the prior global warming lawsuits: the claims were barred by preemption, the political question doctrine, and lack of legal standing. Although none of the defendant lawyers agreed to an interview or to be quoted, some spoke to me to help clarify the specifics of the legal arguments in the motions. If the judge were to accept the defendant motions for dismissal, Kivalina’s lawsuit would be thrown out before going to the discovery and trial phase.
55. National Assessment Synthesis Team, U.S. Global Change Research Program. Climate Change Impacts on the United States: The Potential Consequences of Climate Variability and Change. Overview: Alaska.Washington, DC: U.S. Global Change Research Program, 2000.
56. Government Accountability Office. Alaska Native Villages: Most Are Affected by Flooding and Erosion, but Few Qualify for Federal Assistance. Report GAO-04-142. Washington, DC: Government Accountability Office, 2003.
58. U.S. Army Corps of Engineers. “Alaska Village Erosion Technical Assistance Program: An Examination of Erosion Issues in the Communities of Bethel, Dillingham, Kaktovik, Kivalina, Newtok, Shishmaref, and Unalakleet.” Army Corps of Engineers Report, April 2006. www.housemajority.org/coms/cli/AVETA_Report.pdf.