Kivalina: A Dire Decision For a Drowning Town

In 2009, Kivalina, Alaska took on twenty-one of America’s largest energy companies in a lawsuit to recover the costs of damages resulting from climate change. It is an unprecedented case, and in the years since, counsel on both sides of the issue have managed to highlight the utter inability of the judiciary to handle an issue as large as climate change. The trial court dismissed the lawsuit in a decision based on two doctrines — standing, which defines who can bring a lawsuit and what type of lawsuits they can bring, and the political question, which defines whether the courts are the appropriate branch of government to fix the problem at the core of the suit.

The 9th Circuit Court of Appeals abandoned these arguments but upheld the dismissal, finding instead that Kivalina’s grounds for filing suit were displaced by the Clean Air Act. In short, the 9th Circuit decided that, by passing extremely detailed and comprehensive legislation that does not include global warming regulation, Congress does not intend to provide remedies to towns like Kivalina. This is a far more elegant solution than the trial court designed; it firmly and unequivocally hands a well-defined issue back to Congress without ducking the question for vague political reasons. It also eliminates the possibility that the suit could keep arising in different factual circumstances, which would force courts to decide the standing question in every new case. To understand this result, it is worth delving a little deeper into the facts and reasoning both courts used.

Kivalina is a small town, situated on a six-mile long barrier island on the northwest coast of Alaska. The town is frequently battered by violent storms coming off the Chukchi Sea. For decades, residents of Kivalina have relied on the three-season presence of a thick layer of sea ice to protect them from the harsh storms. In recent years, however, the seas have been open in the summer for ever-longer periods. As the ice breaks up earlier and forms later, the town is pounded by storms and waves that have accelerated the erosion of Kivalina Island. Residents were forced to build a seawall to slow the effect of the waves. Eventually, the town decided it was time to fight the drivers of climate change, and ask those it believed to be responsible to pay for the cost of relocating the town.

The Original Decision

In 2009, the town filed a lawsuit in the Northern District Court of California against more than twenty energy companies, including ExxonMobil, BP, Chevron, Conoco Phillips, and Royal Dutch Shell. Kivalina argued that the defendants together were major contributors to global warming, and that the cumulative effect of their contributions to rising temperatures over the years caused the decrease in Chukchi Sea ice and, subsequently, the coastal erosion at Kivalina Island. This claim was based on the common law theory of public nuisance, which allows courts to award damages under to an entire community — rather than an individual — for injury caused by harms, like pollution or global warming, that transcend political borders. In its original complaint, the town requested $95 to $400 million to pay for relocation.

The defendants — referred to in the complaint collectively as “the Energy Producers” — moved to dismiss the action on the grounds that the court does not have the jurisdiction to decide it. First, the defendants claimed Kivalina’s allegations raise “inherently nonjusticiable political questions.” The “political question doctrine” is intended to preserve the separation of powers. It comes into play wherever the court would be forced to make a decision that, for political or constitutional reasons, would be better left to the legislature or the executive. The district court agreed with the energy producers that “there was insufficient guidance” from the legislature or executive “as to the principles or standards that should be employed to resolve the claims at issue.” Basically, Congress would need to decide whether a remedy should exist in the law for Kivalina, and provide guidance for courts to craft that remedy, before courts could decide these cases.

The defendants also argued that Kivalina did not have standing to file suit. “Standing” to bring suit requires that a plaintiff did, in fact, suffer an injury; that this injury was caused by the activities alleged in the complaint; and that a court can actually fix the injury that the plaintiff suffered. The district court agreed with the defendants. While it is indisputable that Kivalina has been injured by climate change, the district court found no clear causal link between those damages and the plaintiffs. As the argument goes, climate change has been caused by close to two hundred years of industrial growth around the world. There is absolutely no way to prove that the Energy Producers named as defendants were the sole — or even predominant — cause of a plaintiff’s injury.

The Appeal

The appeals court reviews jurisdictional questions de novo, meaning it disregards the trial court’s reasoning and deals with the parties’ arguments from scratch. In this case, this led to a unique result. The court ignored both the political question and standing arguments — the backbone of the district court’s ruling — and instead decided the case under a common law displacement theory. The Supreme Court has held that there is no such thing as a “federal common law,” with a few exceptions like “public nuisance.” This action is permitted where there is “an unreasonable interference with a right general to the common public.” The common law — legal customs, definitions, and rules based on court opinions in past cases — tells courts where that sort of interference may have occurred.

These exceptions, however, exist only where there is a vacuum in Congressional regulation. If Congress has already spoken on a legal issue with sufficient specificity or breadth, any action under federal common law is “displaced” and can only proceed if there are grounds for it in the regulatory regime Congress created. In Kivalina, the court decided that Congress intended for the Clean Air Act — a simultaneously comprehensive and specific law governing air pollution — to control in all situations involving air pollution. Since the Clean Air Act does not list CO2 as a regulated pollutant, and thus provides no remedy for damages caused by CO2, Kivalina cannot succeed in an action for damages caused by global warming and a dismissal is required.


What does the outcome mean? It highlights a number of potential problems in the legal system in terms of addressing climate change. Primarily, Kivalina suggests that the judiciary has drawn a line in the sand, and refuses to get involved in a battle it views as outside its own competency. The 9th Circuit Court of Appeals has traditionally carried with it a reputation of being one of, if not the most liberal and activist courts in the country. If even the 9th Circuit is unwilling to create a judicial remedy for coastal towns and villages injured by the effects of climate change, the pro-business Roberts Court is unlikely to be more amenable to the claims of Kivalina.

Digging deeper, the judiciary may simply be uncomfortable refereeing what many Americans view as a dispute over the validity of climate science. In Kivalina, the 9th Circuit was deciding whether the trial court correctly dismissed the case without allowing a jury to hear it. Dismissal requires that no reasonable jury could possibly find for the plaintiff. The district court came to that conclusion on the grounds that the plaintiffs could not demonstrate causation, and that even if they could the question was out of the court’s hands.

This conclusion came despite the overwhelming evidence that Kivalina’s woes could be directly traceable to the global warming, that global warming is caused by consumption of fossil fuels, and that the twenty-one named defendants overwhelmingly dominate the American energy market, which itself controls nearly 50% of the world’s fossil fuel production. The Court of Appeals retreated from this logic, choosing instead to focus on the lack of a valid cause of action under Federal law. The fact remains that under this decision, continued confusion over climate science hinders the development of an intelligible legal doctrine.

Perhaps foremost among the problems Kivalina illustrates has nothing to do with the judiciary. If they decide to review the case, the Supreme Court may return to the standing doctrine to uphold the result in Kivalina, or rely on the concurring opinion’s explanation of standing to justify denying relief to a similarly-situated plaintiff in the future. Or they could imitate the 9th Circuit and rely on the displacement doctrine to find that no law exists to protect Kivalina from business practices that damage remote victims.

While Americans should be disturbed that an entire community can be so easily precluded from fighting for its rights, both of these doctrines make sense and cannot be abandoned by the Supreme Court — standing prevents countless frivolous lawsuits, and displacement helps to enforce the separation of legislative, judicial, and executive power. Some may quote Kivalina as an easy example of pro-business judges screwing the little guy, but the real issue highlighted in this case is the failure of the executive and the legislature to act sooner or more comprehensively to mitigate the financial consequences of climate change.

Under the regulatory regime that the 9th Circuit referred to in applying the displacement doctrine, Kivalina cannot sue to recover $400 million in relocation expenses. This is partly because the Clean Air Act does not police global warming. One solution is for Congress to simply make the Clean Air Act an enforcement mechanism for global warming. This would require the executive branch, through the Environmental Protection Agency, to list CO2 as a criteria pollutant. This listing would set in motion a regulatory chain reaction that would establish emissions limitations across the country and allow citizens to file suit against polluters for non-compliance. This would not necessarily protect towns like Kivalina — the citizen suit provision of the Act only allows for injunctions and forced compliance, not actions for damages.

Congress could create a remedy for Kivalina and similar communities, and may need to do so as sea-level rise and coastal erosion become more significant problems in the United States. One potential solution is a law that explicitly creates “climate change-driven public nuisance” as a cause of action, and allows victim villages to recover from climate change drivers if they can prove causation through clear and convincing evidence. This is an unlikely fix, for good reason: if sea-level rise models are correct, energy companies could go bankrupt paying out damages to America’s coastal towns.

A different, more workable solution is a “climate change fund.” Gas taxes, energy import tariffs, and special income taxes on energy producers could be pooled into a huge social insurance fund that can be disbursed to towns like Kivalina when the effects of climate change become as destructive as they have there. Redistributing funds in this way would reduce the administrative costs of the court system, and force foreign energy producers and citizens of the United States to bear the same burden as American energy companies in helping pay for damage we all caused together.

Regardless of the solution, Kivalina v. ExxonMobil, et al., is a pivotal case in that it highlights the extreme defects of relying simply on the courts to address this problem. The judiciary simply is not built to handle a problem of this scope or magnitude. The President, Congress, and the American people need to get a lot more serious about addressing this issue, and one can hope this case provides the impetus for the government to act.