Kivalina

Recently, the U.S. District Court for the Northern District of California offered a ruling in Native Village of Kivalina, Alaska v. ExxonMobil Corp., et al., that is in stark contrast to the recent "public nuisance" ruling by the Second Circuit Court of Appeals on utility emissions.

Contrary to the sweeping and unprecedented ruling of the 2nd Circuit in State of Connecticut v. American Electric Power Co. Inc., 05-5104-cv (2d Cir., Sept. 21, 2009), the Kivalina court wisely recognized that global climate change allegations cannot support federal question jurisdiction.

Rather than trivializing the suit as an 'ordinary tort case,' the District Court found that the matter could not be resolved without considering the truly global nature of the issue - and the lack of any ascertainable standards to determine its resolution. Unlike the Second Circuit, the court saw major distinctions between ordinary pollution cases and planet-wide climate claims, and was not willing to indulge its creativity to invent liability criteria on a planetary scale.  Read More »

authors: Donna Wilson and Marla Kanemitsu

We are seeing the first volley over the issue of insurance coverage for policyholders faced with climate change lawsuits predicated on public and private nuisance theories.  The AES Company is one of many energy companies sued by the Native Village of Kivalina in federal court in California.  The Village consists of approximately 400 people.  The suit seeks relief for damages allegedly cause by the defendants’ greenhouse gas emissions.  According to the Village, greenhouse gas emissions have caused temperatures to rise, which in turn caused the ice barrier protecting the Village to melt, thus jeopardizing the ability of the Village to withstand winter storms.  Read More »