Kivalina Files Suit Re: Global Warming

From the New York Times

Flooded Village Files Suit, Citing Corporate Link to Climate Change

Lawyers for the Alaska Native coastal village of Kivalina, which is being forced to relocate because of flooding caused by the changing Arctic climate, filed suit in federal court here Tuesday arguing that 5 oil companies, 14 electric utilities and the country’s largest coal company were responsible for the village’s woes.

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.”

Kivalina, an Inupiat village of 400 people on a barrier reef between the Chukchi Sea and two rivers, is being buffeted by waves that, in colder times, were blocked by sea ice, the suit says. “The result of the increased storm damage is a massive erosion problem,” it says. “Houses and buildings are in imminent danger of falling into the sea.”

The estimated cost of relocating the village is up to $400 million, the suit says.

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.”

...Matt Pawa, a lawyer for Kivalina, said this case was different because it sought monetary damages for an injured party. “The kind of harms to property and public welfare caused by global warming are classic public nuisance injuries,” Mr. Pawa said.