Courts emerge as battlefield for fights over climate change

Published 4:00 am Wednesday, January 27, 2010

The tiny village of Kivalina, Alaska, does not have a hotel, a restaurant or a movie theater. But it has a very big lawsuit that might affect the way the nation deals with climate change.

Kivalina, an Inupiat Eskimo community of 400 perched on a barrier island north of the Arctic Circle, is accusing two dozen fuel and utility companies of helping to cause the climate change that it says is accelerating the island’s erosion.

Blocks of sea ice used to protect the town’s fragile coast from October on, but “we don’t have buildup right now, and it is January,” said Janet Mitchell, Kivalina’s administrator. “We live in anxiety during high-winds seasons.”

The village wants the companies, including ExxonMobil, Shell Oil and many others, to pay the costs of relocating to the mainland, which could amount to as much as $400 million.

The lawsuits

The case is one of three major lawsuits filed by environmental groups, private lawyers and state officials around America against big producers of greenhouse gases. And though the village faces a difficult battle ahead, the cases are picking up steam.

In recent months, two federal appeals courts reversed decisions by federal district courts to dismiss climate change lawsuits, allowing the cases to go forward. In Connecticut, environmental lawyers joined forces with attorneys general of eight states and New York City seeking a court order to reduce greenhouse gas emissions.

In Mississippi, Gulf Coast property owners claim that industry-produced emissions that contribute to climate change increased the potency of Hurricane Katrina.

And although a federal judge in Oakland, Calif., dismissed the Kivalina suit in October, the village is appealing that decision as well.

Setting a precedent?

Tracy Hester, who has taught a course in climate lawsuits at the University of Houston law school, said that with the issues “very much in play” in three circuits of the federal court system, “the game pieces are being set for eventual Supreme Court review.”

The cases need not even get that far to have an impact, said James Tierney, the director of the National State Attorneys General program at Columbia Law School.

If they even get to the discovery stage, and if the energy industry possesses embarrassing e-mail messages and memorandums similar to those that proved devastating to tobacco companies, Tierney said, “it’s a hammer” that could drive industries to the negotiating table.

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