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The City and Village of Kivalina, population about 400, sits on the tip of a six-mile barrier reef on the northwest coast of Alaska. The residents depend on the sea ice that forms along the coast to shield them from violent storms.  Sea ice has consistently declined in recent years – it is thinner, smaller, forms later, and breaks up earlier.

Indeed, as recently reported by the US National Snow and Ice Data Center, Arctic sea ice reached a record low this year. On September 16, sea ice was the lowest summer minimum in the satellite record.

As a result, Kivalina has been battered by the elements and the very land it sits on is disappearing. The survival of the City is threatened by erosion from wave action and sea storms. The village must likely be relocated at a cost of between $95 and $400 million, money they do not have.

As we described in our article for The Lawyers Weekly, Kivalina brought a lawsuit against 24 oil, energy and utility companies alleging these large greenhouse gas (GHG) emitters were responsible for global warming and the resulting reductions in  sea ice. They brought their claim in federal nuisance, arguing that the GHG emissions of carbon dioxide and other greenhouse gases, by contributing to global warming, constitute a substantial and unreasonable interference with public rights, including the rights to use and enjoy public and private property in Kivalina.

In 2009, Judge Saundra Armstrong dismissed the lawsuit, holding that whether greenhouse gas emissions cause a public nuisance is a “political question” reserved for Congress and the president. She also held that Kivalina lacked standing because it could not prove that the 24 defendants were solely responsible for the harm to their island.

Kivalina appealed and the Court of Appeals released its decision on September 21. The opinion of the court, written by Judge Sidney Thomas, concluded [emphasis added]:

In sum, the Supreme Court has held that federal common law addressing domestic greenhouse gas emissions has been displaced by Congressional action. That determination displaces federal common law public nuisance actions seeking damages, as well as those actions seeking injunctive relief. The civil conspiracy claim falls with the substantive claim. Therefore, we affirm the judgment of the district court. We need not, and do not, reach any other issue urged by the parties.

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.

In his concurring opinion, Judge Phillip Pro addressed the question of standing. The American test for standing requires that “a plaintiff must show (1) injury in fact; (2) causation; and (3) likelihood that the injury will be redressed by a favorable decision. He concluded, as did Judge Armstrong:

Kivalina has not met the burden of alleging facts showing Kivalina plausibly can trace their injuries to Appellees. By Kivalina’s own factual allegations, global warming has been occurring for hundreds of years and is the result of a vast multitude of emitters worldwide whose emissions mix quickly, stay in the atmosphere for centuries, and, as a result, are undifferentiated in the global atmosphere. Further, Kivalina’s allegations of their injury and traceability to Appellees’ activities is not bounded in time. Kivalina does not identify when their injury occurred nor tie it to Appellees’ activities within this vast time frame. Kivalina nevertheless seeks to hold these particular Appellees, out of all the greenhouse gas emitters who ever have emitted greenhouse gases over hundreds of years, liable for their injuries.

It is one thing to hold that a State has standing to pursue a statutory procedural right granted to it by Congress in the CAA to challenge the EPA’s failure to regulate greenhouse gas emissions which incrementally may contribute to future global warming. See Massachusetts, 549 U.S. at 516-20. It is quite another to hold that a private party has standing to pick and choose amongst all the greenhouse gas emitters throughout history to hold liable for millions of dollars in damages.

Thus, the City and Village of Kivalina cannot obtain climate justice, or compensation, through the courts, because the courts defer to the government and the legislature, who are choosing not to protect them.

By Meredith James and  Dianne Saxe

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