Kivalina takes on Exxon-Mobil
December 3rd, 2011 | Carey Restino
The city of Kivalina got its day in court Monday as its legal team argued that ExxonMobil, BP and a host of other industrial emitters are such major contributors to global warming that they should have to pay for damages incurred by the erosion-bashed city.
The lawsuit, which was struck down in 2009 by the U.S. District Court, was heard by a panel of three judges on the Ninth U.S. Circuit Court of Appeals in San Francisco this week. Kivalina residents say the energy giants listed in the case owe them at least $95 million for trying to cover up the impact of their emissions on the globe's climate.
"The plaintiff here is being completely wiped out," argued attorney Matt Pawa, who represented Kivalina.
Kivalina, which is located on a six-mile barrier reef located between the Chukchi Sea and the Kivalina and Wulik Rivers, has been battered by winter storms in recent years because sea ice, which typically diminishes the impact of strong winter storms, has been coming later and leaving earlier due to global warming.
During the recent fall storms, as well as many others in past years, the community's residents had to seek shelter in the town's school and hope for the best as waves attempted to undue efforts to stabilize the town's shoreline.
The U.S. Army Corps of Engineers as well as other government agencies, have concluded that Kivalina must relocate at a cost of $95 to $400 million. But making a case that molecules emitted into the air thousands of miles away can be linked to the defendants in a court of law is no small feat.
At the court hearing Monday, several of the judges expressed apparent skepticism over the scope of the case, asking Pawa to explain how the link could be defined.
Pawa argued that prior cases have established important precedent. A California case determined that polluters did not have to be responsible for all the pollution contributing to the problem to be found liable, he pointed out. They just need to be responsible for a major part of it. In addition, he said, the harm created had to be severe, not trivial, thus eliminating the possibility that anyone could establish a claim.
Circuit Court Judge Sidney Thomas questioned on, however.
"Any polluter anywhere on the globe can contribute to global warming," he said. "When I drove my car down to the courthouse today, ostensibly I should join the defendants, I suspect."
Pawa answered that in the judge's case, his car's emissions would be defined as trivial by case law
But U.S. District Judge for the District of Nevada, Philip Pro, who was sitting on the court, asked how the court would determine who was trivial and who was liable.
"What would the standard be," he asked. "How would we draw the line between those who would be liable to the consequences your clients allege to be suffering?"
Pawa said the case does not ask the court to become a manager of emissions.
Dan Collins, arguing for the defendants, pointed out, however, that some case law exists for limiting the proximity.
"Here it is projected onto a worldwide forum with national and international implications," said Collins. "Nothing of this scale has ever been remitted to a court for decision. These are not the kind of inquiries that judges were well-suited for."
Collins also brought up the issue of Kivalina's lack of territorial sovereignty, noting that under ANCSA, the land is held by the Native corporation.
Pawa later rebutted that claim, saying the plaintiffs qualified, and adding that the defendants claim that traceability impossible is mute.
"The facts of global warming are governed by the laws of physics and chemistry," he said.
The judges recessed Monday, noting that both the defendants and the plaintiffs presented many more findings in their briefs than they were able to cover in their aural arguments.
A video recording of the entire proceeding can be seen online at http://www.ca9.uscourts.gov/media/view_video_subpage.php?pk_vid=0000006167
Carey Restino can be reached at email@example.com