The Arctic is warming twice as fast as the rest of the world, resulting in devastating climate and environmental disruption. According to the Third National Climate Assessment, the Artic is experiencing earlier spring snowmelt, reduced sea ice, widespread glacier retreat, warmer permafrost, drier landscapes, and more intense wildfires, rendering parts of the region uninhabitable.
Alaska is the only arctic region in the United States and is home to 40% of all federally recognized tribes. Among them is the Native Village of Kivalina, also known as Kivaliniq in Inupiaq, a community of around 450 people that has been facing climate-fueled storms, floods, and erosion for decades. In a 2003 Government Accountability Office report, Kivalina was identified as being in imminent danger due to climate-related threats. After a series of extreme weather events in the 2000s, it became clear that the people of Kivalina would need to relocate to survive. The cost of relocating, however, is high, ranging from $100 million to over $400 million—or up to one million dollars per person.
In February 2008, the Native Village of Kivalina and the City of Kivalina filed a lawsuit in the federal District Court for Northern California against two dozen energy and utilities companies. The complaint alleged a breach of the federal common law of public nuisance and sought monetary damages for the unreasonable discharge of greenhouse gases that result in climate change. The plaintiffs pointed to the large quantities of greenhouse gas emissions released by the defendants, which they argued were destroying Kivalina and forcing them to relocate. The plaintiffs also accused some defendants of civil conspiracy and concert of action for “conspiring to mislead the public about the science of global warming.” The federal district court judge dismissed the lawsuit for lack of subject matter jurisdiction. In Climate Justice Litigation in the United States—A Primer, authors Barry E. Hill and Emily Bergeron explore how several states have learned from the Kivalina case and have filed state-law climate claims against fossil fuel companies that cannot be successfully removed to federal court.
On September 21, 2012, the Ninth Circuit Court of Appeals affirmed the dismissal of the lawsuit. Regarding the appellate court’s dismissal Circuit Judge Sidney R. Thomas said: “Our conclusion obviously does not aid Kivalina, which itself is being displaced by the rising sea… But the solution to Kivalina’s dire circumstance must rest in the hands of the legislative and executive branches of our government, not the federal common law.” On February 25, 2013, Kivalina filed a petition for a writ of certiorari with the U.S. Supreme Court. The Court denied the petition without comment on May 20, 2013. And with that, Kivalina lost the first climate justice case in federal court in the U.S. seeking damages from the fossil fuel industry for the loss of property due to climate change. The native village of Kivalina has not been relocated yet by federal, state, regional, and local partners, and continues to buy time and build support for permanent solutions.
The April ELR article states that: “Rhode Island, Minnesota, and the District of Columbia learned a valuable lesson from the Kivalina lawsuit—file the lawsuit in state court based solely on state-law claims to avoid the argument that climate change should be addressed by “Congress, the President, or the voters at large” since it is a political question, and because “federal courts cannot provide a remedy.”” The article concludes that tribes, acting as states, may also want to consider initiating environmental justice litigation.
For more on the history and future of climate justice litigation, read: Climate Justice Litigation in the United States—A Primer. And to hear authors Barry E. Hill and Emily Bergeron discuss climate justice and how to ensure that residents of sacrifice zones have a seat at the table, listen to the newest episode of People Places Planet.