Flooded Village Files Suit

http://www.nytimes.com/2008/02/27/us/27alaska.html

February 27, 2008
Flooded Village Files Suit, Citing Corporate Link to Climate Change
By FELICITY BARRINGER
Correction Appended

SAN FRANCISCO — Lawyers for the Alaska Native coastal village of Kivalina, which is being forced to relocate because of flooding caused by the changing Arctic climate, filed suit in federal court here Tuesday arguing that 5 oil companies, 14 electric utilities and the country’s largest coal company were responsible for the village’s woes.

The suit is the latest effort to hold companies like BP America, Chevron, Peabody Energy, Duke Energy and the Southern Company responsible for the impact of global warming because they emit millions of tons of greenhouse gases, or, in the case of Peabody, mine and market carbon-laden coal that is burned by others. It accused the companies of creating a public nuisance.

In an unusual move, those five companies and three other defendants — the Exxon Mobil Corporation, American Electric Power and the Conoco Phillips Company — are also accused of conspiracy. “There has been a long campaign by power, coal and oil companies to mislead the public about the science of global warming,” the suit says. The campaign, it says, contributed “to the public nuisance of global warming by convincing the public at large and the victims of global warming that the process is not man-made when in fact it is.”

Kivalina, an Inupiat village of 400 people on a barrier reef between the Chukchi Sea and two rivers, is being buffeted by waves that, in colder times, were blocked by sea ice, the suit says. “The result of the increased storm damage is a massive erosion problem,” it says. “Houses and buildings are in imminent danger of falling into the sea.”

The estimated cost of relocating the village is up to $400 million, the suit says.

Some lawyers in the case participated in the long-running litigation against American tobacco companies in the 1990s, and some of the same legal theories echo through the complaint. But the hurdles may be greater than those in the tobacco wars. Global warming is a diffuse worldwide phenomenon; a successful public nuisance case requires that defendants’ behavior be directly linked to the harm.

“Public nuisance law has been used from time immemorial to address issues that have not been addressed by the political branches,” said Kirsten H. Engel, a law professor at the University of Arizona. But Professor Engel added, “It’s very difficult to get a court to jump in here and say that what these companies are doing, and have been doing for years, is unreasonable and creating a public nuisance.”

Two similar lawsuits, one brought by California against six automakers and another by a coalition of Eastern states against utility companies, have been dismissed by federal judges. Both judges said the issues involved were political and did not belong in the courts. Those decisions have been appealed.

Matt Pawa, a lawyer for Kivalina, said this case was different because it sought monetary damages for an injured party. “The kind of harms to property and public welfare caused by global warming are classic public nuisance injuries,” Mr. Pawa said.

He added that the other cases had no conspiracy claims, which he said courts routinely addressed.

Reached late Tuesday, spokesmen for three defendants — Jason Cuevas of Southern, Vic Svec of Peabody and Gantt Walton of Exxon Mobil — said they would not comment on the substance of the lawsuit.

But Mr. Svec said, “Rather than unreasonably suing companies for the weather, we would encourage everyone to join Peabody in supporting aggressive development of carbon capture and storage projects and other technologies that help us provide both energy security and carbon solutions.”

Of the accusation that Exxon Mobil participated in a disinformation campaign, Mr. Walton said, “The recycling of this type of discredited conspiracy theory only diverts attention from the real challenge at hand — how to provide the energy to improve living standards while also reducing greenhouse gas emissions.”

This article has been revised to reflect the following correction:

Correction: February 28, 2008

Because of an editing error, an article on Wednesday about a lawsuit filed against energy companies by an Alaska Native coastal village that is being forced to relocate because of flooding caused by the changing Arctic climate misstated the estimated cost of moving the village. It could cost up to $400 million, not up to $400,000.