Inside the Eskimo global-warming suit

by Walter Olson on May 20, 2008

Looks like we’ll be hearing a lot more about the “Kivalina” (Alaskan Inupiat village) climate-change suit:

Over time, the two trial lawyers [Stephen Susman of Texas and Steve Berman of Seattle, both familiar to longterm readers of this site] have become convinced that they have the playbook necessary to win big cases against the country’s largest emitters. It’s the same game plan that brought down Big Tobacco. And in Kivalina — where the link between global warming and material damage is strong—they believe they’ve found the perfect challenger.

In February, Berman and Susman—along with two attorneys who have previously worked on behalf of the village and an environmental lawyer specializing in global warming—filed suit in federal court against 24 oil, coal, and electric companies, claiming that their emissions are partially responsible for the coastal destruction in Kivalina. More important, the suit also accuses eight of the firms (American Electric Power, BP America, Chevron, ConocoPhillips, Duke Energy, ExxonMobil, Peabody Energy, and Southern Company) of conspiring to cover up the threat of man-made climate change, in much the same way the tobacco industry tried to conceal the risks of smoking—by using a series of think tanks and other organizations to falsely sow public doubt in an emerging scientific consensus.

(Stephan Faris, “Conspiracy Theory”, The Atlantic, June). For the theory of legally wrongful participation in public debate (as one might call it), as it surfaced in the tobacco litigation, see, for example, this 2006 post.

More background on the suit at the Native American Rights Fund’s blog, here and here, and at attorney Matthew Pawa’s site. Carter Wood at NAM “Shop Floor” links to a report by the American Justice Partnership and Southeastern Legal Foundation (PDF) entitled, “The Most Dangerous Litigation in America: Kivalina“.

Yet more: Northwestern lawprof David Dana has a working paper at SSRN entitled “The Mismatch between Public Nuisance Law and Global Warming” (via Sheila Scheuerman/TortsProf). Abstract:

The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting task of allocating property or quasi-property rights in greenhouse gas emissions. In the meantime, states do have a state legislative alternative that is preferable to common law suits, and that federal courts can facilitate without any dramatic innovations in federal preemption or dormant commerce clause doctrine.


1 Richard Nieporent 05.20.08 at 10:54 am

If any lawsuit called for Rule 11 sanctions this would be it. This is one of the most preposterous lawsuits that I have ever heard about**. At least when it comes to tobacco one can argue that given the health risks there is no societal benefit in smoking. Of course the tobacco lawsuits were not intended to outlaw smoking, just to enrich lawyers (and government) . With respect to energy, we are dealing with an industry that is vital to our economy. Without energy civilization would collapse.

the suit also accuses eight of the firms (American Electric Power, BP America, Chevron, ConocoPhillips, Duke Energy, ExxonMobil, Peabody Energy, and Southern Company) of conspiring to cover up the threat of man-made climate change. … This second charge arguably eliminates the need for a judge to determine how much greenhouse-gas production—from refining fossil fuel and burning it to produce energy—is acceptable. “You’re not asking the court to evaluate the reasonableness of the conduct,” Berman says. “You’re asking a court to evaluate if somebody conspired to lie.” Monetary damages to Kivalina need not be sourced exclusively to the defendants’ emissions; they would derive from bad-faith efforts to prevent the enactment of public measures that might have slowed the warming.

Well what a surprise. The purpose of the lawsuit is not an attempt to address the problem of global warming but to make large amounts of money for the lawyers. Who would of thought that? If we think $4.00 a gallon gas is expensive now, just wait until the price jumps to $20 a gallon to pay all of the judgments against the oil companies.

2 Richard Nieporent 05.20.08 at 10:57 am

I inadvertently let off the footnote.

** Which of course means that this lawsuit is a winner.

3 Christopher Eckel 05.20.08 at 3:11 pm

Wouldn’t the oil companies be able to sue other guilty parties to assist them in paying their liability in the event of a successful suit? I can’t imagine any class of people deeper pockets or with a larger “carbon footprint” than trial lawyers, with their private jets and 25,000 square foot houses.

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