Native Villagers' Federal Tort Claims on Thin Ice

If the Kivalinans manage to beat the odds and have their claims heard, the case would likely set an important precedent for towns and villages seeking relief for damages caused by climate change.

• By Jessica West, Emily Burgis
• May 09, 2013

There is hardly a more clear illustration of the immediate impact of climate change than the picture facing the inhabitants of the Alaskan Inupiat Eskimo village of Kivalina. Kivalina is a village of approximately 400 people on the tip of a six-mile barrier reef on the northwest coast of Alaska, 70 miles above the Arctic Circle. The villagers are Inupiat Eskimos whose ancestors have lived along the coast for generations. Global warming is destroying their village. Sea ice that once protected the peninsula from storm damage now forms later in the year, breaks up earlier, and is less extensive, leaving the village land to be battered by storms and the rising ocean. As a result, the village, which occupied 56 acres a decade ago, has lost half its land to erosion and rising sea levels.

Having determined the village must be relocated, the U.S. Army Corps of Engineers and the U.S. Government Accountability Office estimate it will cost $400 million for the move. The villagers, though reluctant to leave their homes, concur with the government scientists that the situation is desperate. The villagers, however, lack the funds to relocate.

With few options and facing the loss of their village, Kivalinans are fighting back. In 2008, the Native village of Kivalina and the city of Kivalina filed a complaint in the U.S. District Court for the Northern District of California, seeking damages from 24 oil, energy, and utility companies for their "contributions to global warming through emissions of large quantities of greenhouse gases." Despite compelling evidence of injury, the village's legal case faces immense hurdles.

In September 2012, a panel of the Ninth Circuit Court of Appeals in San Francisco signaled that the legal obstacles may be insurmountable. In a ruling with huge implications for all federal tort cases, each judge on the panel ruled against allowing the claims of the villagers to proceed. Two of the judges agreed that the Kivalinans' case could not proceed because any action on climate change must come from Congress rather than from a common law tort action. The judges dismissed the village's claims, relying upon the little-used doctrine of "displacement" and essentially stating that the Clean Air Act prevented any common law tort claims of nuisance. The opinion by these judges was supported, and perhaps even preordained, by a recent Supreme Court decision. In AEP v. Connecticut, the Supreme Court unanimously held that displacement by the Clean Air Act denied Connecticut the ability to use federal common law to attempt to force utilities to curtail greenhouse gas emissions.

The third judge wrote a separate opinion concurring with dismissal of the village's claims, although on different grounds. Potentially providing a toehold for further legal arguments on behalf of the village, the concurring judge rejected reliance on the theory of displacement, noting a 2008 Supreme Court finding that "where a private remedy does not interfere with administrative judgments and does not conflict with the statutory scheme, a statute providing a comprehensive scheme of public remedies need not be read to preempt a preexisting common law private remedy." Despite the hopeful note, and highlighting the multitude of legal hurdles facing Kivalina, the concurring judge found that the village lacked the necessary standing to bring the claim because the damage to the village could not be adequately connected to the oil and energy companies sued. In an ironic twist, the judge did not deny the existence of global warming but dismissed the case due precisely to the long history of human actions contributing to climate change, making it impossible to pinpoint the parties responsible for the damages to the Kivalinans.

The Kivalinans have asked a larger en banc panel of the Ninth Circuit to reconsider the dismissal of their claims. In the absence of help from this en banc panel, the Kivalinans will be left with limited options. Recent jurisprudence allows the possibility of the Kivalinans seeking a state law remedy in the Alaskan courts, though the preemption of state remedies by federal law may present a barrier. And, of course, the village can attempt an appeal to Supreme Court. Despite the difficult road, the Kivalinans seem prepared for the battle.

If the Kivalinans manage to beat the odds and have their claims heard, the case would likely set an important precedent for towns and villages seeking relief for damages caused by climate change. A ruling in favor of the Kivalinans would also thrust courts into the midst of the debate regarding the causes and costs of climate change that they would likely prefer to avoid but may be forced to confront. Like many others impacted by climate change, the residents of Kivalina have not obtained relief from the elected branches of government. Without the ability to bring their grievances into court, the Kivalinans, quite literally, will be sunk. Perhaps the elected branches of government will come together to provide a remedy for damages resulting from global warming, but in the cold climate of Washington, D.C., the Kivalinans are likely to find themselves on thin ice.