Residents of a small Alaska village recently sued a group of large oil companies, electric utilities, and a coal company, alleging that the defendants’ greenhouse gas emissions are destroying the village.

The Inupiat village of Kivalina, home to roughly 400 people, is located “on the tip of a six-mile barrier reef located between the Chukchi Sea and the Kivalina and Wulik Rivers on the Northwest coast of Alaska, some seventy miles north of the Arctic Circle.” The suit contends that “[g]lobal warming is destroying Kivalina and the village thus must be relocated soon or be abandoned and cease to exist” as a result of the loss of arctic sea ice that protects the village from storms. The complaint estimates the cost of relocating the village to be from $95 million to $400 million.

The suit alleges that global warming is a public nuisance, unreasonably interfering with “the rights to use and enjoy public and private property in Kivalina.” This type of claim has been raised in other cases against major polluters seeking damages for the effects of climate change, though none successfully.

This suit is noteworthy for at least two reasons. First, unlike other nuisance and tort cases that have sought injunctive relief related to climate change impacts, the Plaintiffs here seek what they allege are measurable damages. Moreover, the U.S. Army Corps of Engineers and the General Accountability Office have published reports from which the plaintiffs, subject to serious evidentiary issues, may be able to draw support for their claims.

Second, to address a significant evidentiary hurdle of establishing a casual link between the emissions of greenhouse gases by the specific defendants and the loss of sea ice in and around the village, the Plaintiffs are alleging a conspiracy of deception on the part of certain of the defendants. The complaint accuses these defendants of engaging in a conspiracy by using “front groups, fake citizens organizations, and bogus scientific bodies” to create a “false scientific debate . . . in order to deceive the public[.]” The complaint further alleges that these defendants “intended to further the defendants’ abilities to contribute to global warming” by allowing greenhouse gas emissions to continue unabated.

Lead counsel for the plaintiffs used similar conspiracy arguments to great effect in litigation against cigarette manufacturers for the tobacco industry’s efforts to deny the harmful effects of smoking. There are, however, crucial differences between this case and the tobacco litigation. Even if plaintiffs were able to prove that global climate change harmed Kivalina, the plaintiffs would likely still have to prove that emissions from these particular defendants were a proximate cause of any harm suffered. This will not be an easy burden to carry, given that human greenhouse gas emissions began with the industrial revolution, and are generated today by millions of sources, including homes, airplanes, cargo ships, and automobiles. The defendants should have strong arguments argue that their overall share of accumulated greenhouse gases in the atmosphere is too minuscule to hold them legally liable for the effects of warming.

For further information about this topic, please contact Akin Gump.