Attacking Climate Change in Court

A spate of legal cases try to hold corporations and governments liable global warming


A new sea wall that runs along the seaward side of the village of Kivalina, Alaska, seen in 2006.

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For decades, the Inupiat people have lived a simple life in the tiny Alaskan village of Kivalina, subsisting by hunting for caribou and bearded seal and fishing for salmon and arctic char.

The weather has never been kind to the 400 souls on this 6-mile-long barrier reef; January's average low temperature is minus 15 degrees. But life has become even more difficult since the melting of the permafrost—permanently frozen subsoil—that once protected the island from storms. In 2004 and 2005, erosion cut 70 to 80 feet off the coastline, threatening many of the village's 150 structures, including its school. In 2006, the U.S. Army Corps of Engineers concluded that the buildings' failures soon "would render the community uninhabitable."

The problem: global warming. The proposed solution: moving the village. The cost: anywhere from $95 million to $400 million. The sum is prohibitive for a population with a poverty rate twice the national average. So villagers have tried a novel approach—putting the burden on the energy companies they say helped cause the problem.

Last month, the citizens of Kivalina filed a federal lawsuit against 24 oil, gas, and electric companies to hold them fiscally responsible for the carbon emissions that contribute to global warming. The suit follows a growing number of cases trying to tackle climate change through the legal system by targeting businesses or government policies. The Kivalina plaintiffs argue that the energy companies, including giants Exxon Mobil, Chevron, and Duke Energy, have created a public nuisance, and they seek unspecified monetary damages. The companies are generally not commenting, except to say that climate change is not an issue for the courts.

Public nuisance. Whether lawsuits are effective tools against global warming is an open question. Judges have recently thrown out three other public nuisance cases against corporations on the grounds that global warming is a political question best addressed by legislatures. All are on appeal. But other lawsuits have forced policymakers to consider the impact of global warming in city planning and corporate expansions. The California attorney general, for instance, persuaded ConocoPhillips last year to pay $10 million to offset the carbon emissions from a refinery expansion. Last year, the Supreme Court held that the government must take global warming into account in reviews dealing with the Clean Air Act. And in November, a federal appeals court struck down the federal government's fuel economy standards for light trucks and suvs because the government failed to review the impact on climate change.

As for nuisance suits, the Kivalina case differs from its predecessors, lawyers argue, because it models itself after the lawsuits against Big Tobacco in the 1990s that held cigarette manufacturers liable for hiding the health consequences of smoking. Likewise, the Kivalina suit alleges that energy companies conspired to create a false sense of doubt about effects of global warming.

The tobacco cases showed how cigarette companies knowingly withheld the hazards of tobacco from the public and spread misinformation through industry-paid front groups. The Kivalina suit alleges that energy companies created trade associations and think tanks to foster uncertainty about global warming, knowing, the suit claims, their information was inaccurate.

For instance, the suit cites internal documents from the Information Council on the Environment—formed by the Southern Co., a major coal utility, and other coal interests—showing that the council's goal was to "reposition global warming as theory." One of the organizations responsible for casting doubt, the suit says, was the Advancement of Sound Science Coalition, an organization started by Philip Morris to do the same for the link between tobacco and cancer.

The Kivalina case has drawn lawyers who worked on both sides of the tobacco litigation. One, Stephen Susman, a top Texas litigator who represented Philip Morris, says that the global warming plaintiffs may be seen as more sympathetic than the tobacco plaintiffs because, unlike smokers who chose to smoke, residents of Kivalina "aren't assuming any risk other than being alive."