Native Village of Kivalina v. Exxonmobil Corp.

Decision Date30 September 2009
Docket NumberCase No. C 08-1138 SBA.
PartiesNATIVE VILLAGE OF KIVALINA, and City of Kivalina, Plaintiffs, v. EXXONMOBIL CORPORATION, et al., Defendants.
CourtU.S. District Court — Northern District of California

Luke Cole, Brent Joseph Newell, San Francisco, CA, Barbara A. Mahoney, Steve W. Berman, Hagens Berman Sobol Shapiro LLP, Drew D. Hansen, Susman Godfrey L.L.P., Seattle, WA, Benjamin Krass, Mark Richard Rielly, Matthew F. Pawa, Law Offices of Matthew F. Pawa, P.C., Newton Centre, MA, Christopher A. Seeger, James A. O'Brien, Stephen A. Weiss, Seeger Weiss LLP, New York, NY, Dennis J. Reich, Rich & Binstock, LLP, Eric J. Mayer, H. Lee Godfrey, Stephen D. Susman, Susman Godfrey L.L.P., Houston, TX, Gary E. Mason, Mason LLP., Washington, DC, Heather Kendall Miller, Native American Rights Fund, Anchorage, AK, Reed R. Kathrein, Hagens Berman Sobol Shapiro LLP, Berkeley, CA, for Plaintiffs.

John Frederic Daum, O'Melveny & Myers LLP, Matthew T. Heartney, Arnold & Porter, Daniel Paul Collins, Ronald L. Olson, Munger Tolles & Olson, Richard Kevin Welsh, Akin Gump Strauss Hauer & Feld, LLP, Belynda B. Reck, Hunter & Williams LLP, Los Angeles, CA, Hacker D. Jonathan, Jonathan D. Hacker, O'Melveny & Myers LLP, Kathleen Taylor Sooy, Scott L. Winkelman, Crowell & Moring LLP, Norm W. Fichthorn, F. William Brownell, Allison D. Wood, Hunton & Williams, LLP, Jeffrey Alan Lamken, Baker Botts, LLP, Karl R. Moor, The Southern Company, Kevin Patrick Holewinski, Jones Day, Washington, DC, Michael B. Gerrard, Philip H. Curtis, Arnold & Porter, LLP, Shawn P. Regan, Hunton & Williams LLP, New York, NY, Lisa Kobialka, King & Spalding LLP, Redwood City, CA, Jonathan Lawrence Marsh, Robert E. Meadows, Tracie J. Renfroe, King & Spalding LLP, Houston, TX, Elizabeth L. Deeley, Casey M. Nokes, Kirkland & Ellis LLP, Jerome Cary Roth, Munger Tolles & Olson LLP, Samuel Ray Miller, Sidley Austin LLP, Thomas Ailbe Rector, Jones Day, San Francisco, CA, Andrew

Brian Clubok, Jeffrey Bossert Clark, Stuart A.C. Drake, Susan E. Engel, Kirkland & Ellis LLP, Tracy A. Roman, Crowell & Moring, Paul E. Gutermann, Akin Gump Strauss Hauer & Feld, LLP, David T. Buente, Jr., Peter D. Keisler, Sidley Austin LLP, Allison D. Wood, Hunton & Williams LLP, Washington, DC, Steven Paul Rice, Crowell & Moring LLP, Irvine, CA, Felix Lebron, Kamran Salour, Greenberg Traurig LLP, Santa Monica, CA, Michael L. Rice, Thomas E. Fennell, Jones Day, Dallas, TX, for Defendants.



Plaintiff Native Village of Kivalina (the Village) is the governing body of an Inupiat Eskimo village of approximately 400 people who reside in the City of Kivalina (Kivalina), which also is a plaintiff in this action. The Complaint alleges that as a result of global warming, the Arctic sea ice that protects the Kivalina coast from winter storms has diminished, and that the resulting erosion and destruction will require the relocation of Kivalina's residents. As defendants, the Village and Kivalina (collectively, Plaintiffs) have named twenty-four oil, energy and utility companies1 from whom they seek damages under a federal common law claim of nuisance, based on their alleged contribution to the excessive emission of carbon dioxide and other greenhouse gases which they claim are causing global warming.

The parties are presently before the Court on various Defendants' motions to dismiss for lack of subject matter jurisdiction, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In their Rule 12(b)(1) motions, Defendants contend that Plaintiffs' claims are not justiciable under the political question doctrine, and that Plaintiffs otherwise lack standing under Article III of the United States Constitution. Having read and considered the papers filed in connection with this matter, and being fully informed, the Court hereby GRANTS Defendants' motions to dismiss for lack of jurisdiction. The Court, in its discretion, finds this matter suitable for resolution without oral argument. See Fed.R.Civ.P. 78(b).


The Village is a self-governing, federally-recognized Tribe of Inupiat Eskimos established pursuant to the provisions of the Indian Reorganization Act of 1934, as amended in 1936. Compl. ¶ 12. Members of the Village reside in Kivalina, which is a unified municipality incorporated under Alaska law in 1969 with a population of approximately 400 persons. Id. ¶ 1, 13, 15. Kivalina is located at the tip of a six-mile long barrier reef, approximately seventy miles north of the Arctic Circle, between the Chukchi Sea and the Kivalina and Wulik Rivers on the Northwest coast of Alaska. Id. ¶ 1.

The Kivalina coast is protected by Arctic sea ice that is present during the fall, winter and spring. Id. ¶¶ 4, 16. The sea ice, which attaches to the Kivalina coast, acts as a barrier against the coastal storms and waves that affect the coast of the Chukchi Sea. Id. ¶ 16. As a result of global warming, however, the sea ice now attaches to the Kivalina coast later in the year and breaks up earlier and is thinner and less extensive than before, thus subjecting Kivalina to coastal storm waves and surges. Id. The resulting erosion has now reached the point where Kivalina is becoming uninhabitable. Id. ¶ 17. Plaintiffs allege that as a result, the Village will have to be relocated, at a cost estimated to range from $95 to $400 million. Id. ¶¶ 1, 17.


In recent years, much attention has been focused on the issue of global warming, which is not itself an event so much as it is a sequence of events. Generally speaking, global warming refers to the build-up of carbon dioxide and methane (commonly referred to as "greenhouse gases") in the atmosphere which, in turn, causes the temperature of the planet to increase. Id. ¶ 123. Both carbon dioxide and methane are products of human activity. Id. ¶¶ 124, 133. Plaintiffs attribute the build-up of atmospheric carbon dioxide and methane to increases in the combustion of fossil fuels as well as fuel harvesting activities, such as coal mining and oil drilling. Id. ¶¶ 124, 126, 167-69, 173, 180.

According to Plaintiffs, carbon dioxide and other greenhouse gas levels have been increasing steadily since the beginning of the industrial revolution in the 18th century, with more than a one-third increase having occurred since 1980. Id. ¶ 125. The emitted gases "rapidly mix in the atmosphere and cause the increase in the atmospheric concentration of carbon dioxide levels and other greenhouse gases worldwide." Id. ¶ 254. These gases remain in the atmosphere for centuries and "thus have a lasting effect on [the] climate." Id. ¶ 24. The carbon dioxide traps heat emitted by the sun which, in turn, increases the climactic temperature on Earth. Id. As the planet heats, the oceans become less efficient at removing carbon dioxide from the atmosphere. Id. ¶ 127. Likewise, the planet reflects less energy back into space which then causes "white, snowy, or icy areas" to darken and absorb more heat. Id. The increase in the surface temperature causes seawater to expand and sea levels to rise. Id. ¶ 130. In addition, sea levels are rising due to the melting of ice caps and glaciers resulting from increased temperatures. Id. ¶ 131. Plaintiffs allege that these events have, in turn, led to the loss of the Arctic sea ice that serves to protect Kivalina from winter storms. Id. ¶ 4.


Plaintiffs filed their Complaint on February 26, 2008. The Complaint alleges four claims for relief: (1) Federal Common Law: Public Nuisance; (2) State Law: Private and Public Nuisance; (3) Civil Conspiracy; and (4) Concert of Action. Compl. ¶¶ 249-282. As Defendants, Plaintiffs have named various oil companies, power companies and utility providers, all of whom are alleged to be jointly and severally liable for causing damage to Plaintiffs. The Complaint does not seek injunctive relief nor does it specify a particular amount of monetary damages. However, Plaintiffs claim that the effects of global warming mean that they will have to relocate the inhabitants of Kivalina at an estimated cost of $95 million to $400 million. Id. ¶ 1.

Pursuant to the parties' stipulated scheduling order, Defendants filed various motions to dismiss pursuant to Rules 12(b)(1) and 12(b)(6). These motions are: (a) Motion of Certain Oil Company Defendants to Dismiss Plaintiffs' Complaint Pursuant to Fed.R.Civ.P. 12(b)(1); (b) Motion to Dismiss of Defendant Peabody Energy Corporation for lack of Subject Matter Jurisdiction Pursuant to Fed.R.Civ.P. 12(b)(1) and for Failure to State a Claim Upon Which Relief May be Granted Pursuant to Fed.R.Civ.P. 12(b)(6); (c) Motion of Certain Oil Company Defendants to Dismiss Plaintiffs' Complaint Pursuant to Fed.R.Civ.P. 12(b)(1); (d) Motion of Certain Utility Defendants to Dismiss Plaintiffs' Civil Conspiracy Claim; and (e) Utility Defendants' Motion to Dismiss.2

The threshold question presented by Defendants' motions is whether the Court has subject matter jurisdiction over Plaintiffs' federal claim for common law nuisance. In particular, Defendants argue that under the political question doctrine, the Court lacks jurisdiction to consider the merits of Plaintiffs' nuisance claim because its resolution will require the Court to make policy determinations relating to the use of fossil fuels and other energy sources and consider their value in relation to the environmental, economic and social consequences of such use. Defendants argue that such questions are inherently political and that there are no judicially manageable standards available to adjudicate these issues. As a secondary basis for dismissal, Defendants argue that Plaintiffs lack standing under Article III...

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