From Kivalina
A Climate Change Story
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In July 2010, I received an e-mail from Anthony Arnove to provide a blurb for a forthcoming book by Christine Shearer, Kivalina: A Climate Change Story. He also e-mailed me the book draft. I read it and e-mailed him back my blurb within a few days. I have spent time in Point Hope and Point Lay, two Iñupiat communities along the Chukchi Sea, north of Kivalina. So, I was familiar with Kivalina’s struggle with climate change induced erosion but did not have knowledge of the lawsuit, or the larger history of corporate deception that Christine wrote about in her book. The following month, I founded ClimateStoytellers.org to share such stories widely, and invited Christine to contribute. She did. The following year, her book came out, and the first reading was at the Elliott Bay Book Company— an independent bookstore in Seattle, a favorite of mine, as I lived in the city for nearly a decade. On August 3, 2011, I attended her reading with a few friends. Here is an excerpt from Kivalina: A Climate Change Story.
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Kivalina: A Climate Change Story by Christine Shearer was published by Hay market Books in 2011.
Due to the lack of ice formation along the shores of Kivalina, by October 2004 the land began failing. …The island seemed to be falling apart and disappearing into the Chukchi Sea before the very eyes of its inhabitants. Volunteers from the village began to work feverishly to hold the island together but every effort, every object placed along the edges, was being sucked into the angry sea…. Evacuation by air was not an option because of the weather conditions and because the village was surrounded by the rough waters of the sea storm. This meant evacuation was also not an option by boat to the mainland. There was nowhere to go and nothing the volunteers did worked to keep the island together—the people were trapped!
—Kivalina Tribal Administrator Colleen Swan
IN FEBRUARY 2008, a tiny Alaska Native village named Kivalina filed suit against twenty-four fossil fuel companies for contributing to the village’s erosion through large amount of greenhouse gas emissions, and for creating a false debate around climate change. The lawsuit was filed in conjunction with environmental justice and indigenous rights organizations as one of several steps in a broader push for climate justice, aiming to help Kivalina residents draw attention to their situation and call for action from government and corporate officials that had so far largely ignored them.
The Native Village of Kivalina lies approximately 120 miles north of the Arctic Circle, on the tip of a thin, 8-mile-long barrier reef island. The population of about four hundred is primarily Iñupiat, with ancestry to the area going back thousands of years to some of the first settlements in the Americas. The Iñupiat have been able to survive in the harsh Arctic region through an understanding of and close connection to the cycles and rhythms of the land, with the Iñupiaq words for the different seasons translating into their hunting and gathering cycles. This understanding permeates their culture—that is, their daily life—and their ability to live off the land, sustaining themselves and their community, is a source of pride and values. Like many Alaska Native villages, Kivalina has retained a largely subsistence lifestyle.
Kivalina residents report first noting erosion of the island in the 1950s, and in 1992 the community voted to relocate, selecting a new site by 1998. As they tried to engineer the move, however, they found that a government body to assist communities with relocation does not exist. There is also no policy in place—nationally or internationally—to help communities relocate due to climate change, even though a December 2003 Government Accountability Office report found that at least four Alaska Native villages were in “imminent danger” from flooding and erosion, aggravated by rising temperatures, and would have to relocate—among them Kivalina.
Colleen Swan, spring whaling camp, near Kivalina. (Courtesy Colleen Swan, 2011.)
According to City Administrator Janet Mitchell, “We talked to everyone we could. But the word relocation does not exist at the federal level, and I doubt it exists at the state level.” Tribal Administrator Colleen Swan reported a similar experience: “There wasn’t anyone we could talk to about global warming and what it was doing to our environment. There’s no agency in the federal government that deals with climate change.” Residents also received little relocation help from their representative tribal corporation, the Northwest Arctic Native Association (NANA), created by the 1971 Alaska Native Claims Settlement Act (ANCSA) and seemingly more focused on economic growth than tribal assistance. Caught within gray areas of US and tribal political representation, Kivalina has been struggling to relocate for almost two decades with little success, as climate change comes more quickly and severely, putting the entire village in danger.
The erosion of Kivalina and the difficulty facing its residents as they try to relocate raises issues of climate justice, as the people there have lived a relatively low-energy, subsistence lifestyle for millennia, yet are facing some of the biggest impacts from climate change. Climate justice is an extension of civil rights and environmental justice movements, which acknowledge that risks to public well-being are unequal, reflecting broader social inequality. Historic discrimination, uneven political representation, and economic inequality have concentrated many working-class and communities of color in more hazardous areas with fewer resources to minimize harms, like Kivalina.
Iñuit populations in the Arctic are among the most vulnerable to climate change because of the sensitivity of the Arctic to heat, their reliance on the land and water for subsistence, and the lack of resources to protect themselves from climate changes. Like many Native American communities, Alaska Natives have incomes well below the national and state average. The ANCSA of 1971 organized the indigenous population of Alaska into regional tribal corporations, with a portion of the proceeds from the corporate projects going to Alaska Natives, who are considered shareholders. The projects have brought in some money, but not enough to lift many rural villages above poverty levels. Individuals vote for tribal corporation directors, but directors are then free to determine the activities of the regional corporations. This has created tensions between regional corporate directors who want to extract natural resources for profit and Alaska Natives who regard such practices as antithetical to traditional subsistence ways. While some regional corporations have been successful through such endeavors as logging, mining, and collaborating with oil companies, others have struggled, finding the abrupt transition from subsistence living to capital accumulation difficult, especially in regions not rich in resources. The disparity in resources is somewhat compensated by a mandated 70 percent sharing of resource revenues among all tribal corporations statewide, but there are still notable discrepancies in regional corporate performance.
Making money is not necessarily the goal of many Alaska Natives, however, particularly those in rural villages more concerned with sovereignty and subsistence rights. While the US government currently recognizes more than two hundred Alaska Native tribal councils, their sovereignty is limited: federal and state Supreme Court decisions in the late 1990s ruled that Alaska Native villages are “sovereigns without territorial reach,” with “inherent sovereignty” to regulate domestic affairs but not to extend such rule beyond their territory or people. Left inlegally ambiguous gray areas still under contest, village tribal councils frequently have strained relations with regional corporations, due to disputes over resource exploitation and leadership, as well as with the state of Alaska, which is often unresponsive to native rights. There is a “trust relationship” between the federal government and Native American tribes, referring to the federal government’s promise—laid out in treaties—to protect and promote tribal self-governance in compensation for the loss of their lands. Native Americans have argued that the trust relationship constitutes legally binding obligations, but the relationship has been interpreted differently and unevenly by US judges.
The struggle for Native American rights is regarded as an early stream of the environmental justice movement. Following the civil rights movement, many inner-city residents, activists, and scholars began calling attention to the concentration within poor and working-class communities of “locally unwanted land uses” such as city dumps, chemical plants, and oil refineries, particularly in communities of color due to the history of residential segregation and discrimination, restricted access to mortgages and loans (“redlining”), zoning practices, and lack of representation on local planning boards.
Awareness of and actions against land-use inequities grew alongside similar struggles, such as the campaign by farm workers (largely immigrants) to protect themselves against harmful pesticides, the anti-toxics movement set off by the contamination of Love Canal, and long-standing indigenous struggles against the overdevelopment of native lands. By the 1990s, these and other struggles had been identified as a broader environmental justice movement (EJM). In contrast to the environmental movement, the EJM defines “the environment” not as nature per se, but as where people work, live, and play.
Within the United States, activist and litigation organizations have developed around environmental justice issues, many of them small and grassroots groups that respond to local issues as they develop. The organizations employ a variety of techniques, with litigation just one of several tools including political participation in local development decisions, direct actions, and mobilization of affected communities. The movement’s main goal, as articulated by EJM legal advocate Luke Cole, is to “rightly challenge, first and foremost, the legitimacy of the decision-making process and the social structures that allow such decisions to be made without the involvement of those most intimately concerned.”
Cole was one of the key lawyers in the Kivalina lawsuit, before a car crash took his life in June 2009. After graduating with a law degree from Harvard, he went on to intern for public rights activist Ralph Nader, and then to co-found the San Francisco-based Center for Race, Poverty, and the Environment in 1989. At the Center, Cole worked with communities around the Bay Area and Central Valley of California for cleaner air and water. In 2001, Cole traveled to Kotzebue, Alaska, to help lead a seminar on indigenous environmental law.
At the conference he met residents of Kivalina. They told him about the poisoning of their water by the Red Dog Mine, the world’s largest zinc operation, fifty miles east of Kivalina. The mine was a project of Kivalina’s regional corporation, NANA, and had become a source of income for them, but a source of harm for Kivalina, according to residents. They told Cole that since the mine began operations in 1989, the Wulik River—their primary source of freshwater—sometimes ran in bright colors, tasted funny, and contained many dead and deformed fish. They had reported these problems to NANA and state officials, but nothing had been done. Cole worked with the residents to investigate the mine, found it was in violation of its discharge permits, and filed a lawsuit, leading to a settlement six years later. The long-term health effects from the river’s contamination remain to be seen.
According to Luke Cole: “During this time I was going up to Kivalina three, four times a year in the context of this litigation and I was seeing what residents were reporting to me as changes from global warming. I would go up there in September and there was no sea ice. Now, Kivalina is north of the Arctic Circle, and there should be ice but there wasn’t. So I asked about it and they said they had been noticing it for many years, but that it had been getting worse.”
Despite the long-standing stance of hesitation and skepticism by the executive branch, the US government itself was documenting the effects of climate change in Alaska, particularly on native villages. In 2000, the US Global Change Research Program released its National Assessment Synthesis (NAS) report on climate change, a summary of climate science, which the fossil fuel-based Competitive Enterprise Institute later sued the government for releasing. The report noted Alaska’s climate had warmed an average of 4 degrees Fahrenheit since the 1950s, and as much as 7 degrees Fahrenheit in the interior during winter. Permafrost, the permanently frozen subsoil that underlies most of Alaska, was thawing, causing damage to overlying infrastructure and contributing to soil erosion and landslides. Sea ice had retreated 14 percent since 1978 and thinned 40 percent since the 1960s, leaving coastlines vulnerable to erosion and flooding.
The NAS report also noted that climate change was already affecting life in Alaska Native villages. In December 2003, the Government Accountability Office went on to report that most of Alaska’s more than two hundred native villages were affected to some degree by flooding and erosion, with thirty-one facing imminent threats “due in part to rising temperatures that cause protective shore ice to form later in the year, leaving the villages vulnerable to storms.”
As with the pollution from Red Dog Mine, the people of Kivalina had reported the effects of warming temperatures but then hit a dead end. They had voted to relocate in 1992, petitioned various government bodies to begin a relocation process, and found there was no process in place to assist them. Meanwhile the need to relocate grew more urgent as the effects of climate change accelerated the village’s erosion and left residents increasingly in danger from storms.
Similar effects were impacting indigenous communities throughout the Arctic. In 2005, an Iñuit petition was filed with the Inter-American Commission on Human Rights, created in 1959 to uphold and investigate violations of the 1948 American Declaration of the Human Rights of Man. The Iñuit petition alleged the US government was violating the human rights of Arctic people by refusing to limit greenhouse gas emissions. Seeking caps on US emissions, the petition also called for the commission to produce plans to protect Iñuit culture and resources through adaptation assistance. The petition was rejected one year later by the commission, which maintained that the charges outlined in the petition were insufficiently supported for making a determination. The same year, the US Army Corps of Engineers issued a report stating the situation in Kivalina was “dire” and that the entire town needed to be immediately relocated, at an estimated cost ranging from $100 million to $400 million, according to various government estimates.
In September 2007, Kivalina officials received a fax from the National Weather Service reporting winds in the area were expected to hit with a wave height of up to eight feet. The village faced the danger of a spill from their fourteen large fuel tanks. Fearing flooding, the Northwest Arctic Borough decided to initiate a precautionary evacuation. Those wishing to leave were transported via cargo planes and off-road vehicles. Some residents remained, either by choice or to help protect the seawall and village.
Kivalina residents Dolly and Reppi Swan, and their friend David Frankson, vividly recalled the 2007 storm. Dolly said of the storm: “It was kinda scary, it’s hard to put into words. It was so different to watch that big storm coming in. You would not want to be around here. It’s like, I wanted to get on the first plane out of here. But I stayed. Reppi asked me to, he wanted me to be with him. We sent our children to be evacuated.”
Reppi, in turn, stayed because his father instructed him to, as part of his duties with Kivalina Erosion Control. He worked during the storm protecting the shoreline: “The work was dangerous. One time before the storm we were setting bags into the water and one of the guys was setting bags and tripped right into the water. He was getting so used to it, running down, taking bags and bringing them back up, and the bags have loops on them, when he started running down his feet got caught, and he fell right into the water. So we grabbed him.”
David Frankson helped the people of Kivalina evacuate. While trying to move the people out, he encountered difficulties: “We were supposed to go to Kotzebue but the FAA [Federal Aviation Administration] said no. … They said the pilots could not exceed their hours. So we took our four-wheelers down to Red Dog Mine. Men, women, and children. But the children were too young to go there, it was very dangerous.” Other residents took on more of the emotional labor during the evacuation, such as resident Margaret Baldwin: “It was really scary, some children were crying, without their parents, I had to comfort them, comfort the children. Small kids.”
After the storm, the Army Corps approved construction of a seawall for Kivalina. Relocation, however, remained necessary, yet there was still no policy in place to assist the people.
Shortly after the evacuation, Kivalina residents began debating other options for protecting themselves. Cole suggested a climate change lawsuit, positioning the situation within an environmental justice framework, as the only way to give the people of Kivalina a voice, however imperfect the suit might be: “No one asked the people of Kivalina, y’know, ‘Would you like to have your environment ruined?’ A lawsuit is the only way they have of expressing themselves in the environmental justice process. It’s late in the day, it’s inadequate, it’s a blunt tool, it’s the only tool they have left.”
Cole spoke to lawyer Heather Kendall-Miller of the Native American Rights Fund (NARF), which provides legal representation for Native Americans. Working in Anchorage, Kendall-Miller was acutely aware of the climate change issues facing native villages and interested in branching out legally in that area, but had not yet found a way. “My primary line of work is litigating subsistence and tribal sovereignty cases. Climate change is outside [NARF’s] scope but it became necessary when we saw how drastic the effects were on the people that we work with and serve.” She noted that while the federal government has a trust relationship with Kivalina, it would be difficult to legally enforce federal assistance with the village’s relocation, making her receptive to pursuing the case as a matter of environmental pollution and public nuisance.
Kendall-Miller had already been approached about such a possibility by Matt Pawa, a lawyer at a small Boston firm that had filed the first federal global warming nuisance case with attorneys general in Connecticut v. AEP. Together Cole, Kendall-Miller, and Pawa considered filing a claim on behalf of Kivalina and discussed this option with the village. After several meetings, the Kivalina City and Tribal Councils agreed. Pawa then recruited Steve Berman and Steve Susman, both high-profile litigators involved in the state tobacco lawsuits—Berman on the side of states and Susman on the side of tobacco companies—as well as several other public rights lawyers.
On February 26, 2008, Kivalina, in both capacities as a native village and city, filed a legal claim in the United States District Court for the Northern District of California against twenty-four oil, electricity, and coal companies: ExxonMobil, BP, BP America, BP Products, Chevron Corporation, Chevron USA, ConocoPhillips, Royal Dutch Shell, Shell Oil, Peabody Energy, AES Corporation, American Electric Power Company, American Electric Power Services Corporation, DTE Energy Company, Duke Energy, Dynegy Holdings, Edison International, MidAmerican Energy Holdings Company, Mirant Corporation, NRG Energy, Pinnacle West Capital Corporation, Reliant Energy, Southern Company, and Xcel Energy. The claim alleges that the defendants are significant contributors of greenhouse gas emissions, exacerbating global warming and the erosion in Kivalina, constituting a public nuisance under federal and state common law. The suit seeks damages of up to $400 million, the estimated cost of relocating the village. In addition, there are secondary claims of conspiracy and concert of action against ExxonMobil, AEP, BP, Chevron, ConocoPhillips, Duke, Peabody, and Southern Company for conspiring to create a false scientific debate about climate change to deceive the public. The defendants in the first claim were selected for being among the largest emitters of greenhouse gases, while those in the secondary claim were selected for, in the words of Luke Cole, “going above and beyond” in their efforts to deceive the public about global warming.
The lawsuit cuts across many aspects of climate change, as illustrated by the different but interconnected motivations of the lawyers who filed the claim. Steve Susman, for example, is particularly focused on addressing climate change, and holding fossil fuel companies accountable, similar to the tobacco lawsuits. His involvement in the Kivalina case is not able both because he is a high-profile litigator who charges up to a thousand dollars an hour for his services, and because he was involved in the tobacco suits—on the side of tobacco. In interviews, Susman has attributed his interest in global warming to his wife who, during our phone interview, was correcting him or adding tidbits in the background as we spoke. He briefly recapped his growing interest in climate change: “In the fall of 2005, I was with my wife and helping her organize a Yale conference on climate change. I went with her and didn’t know anything about it and started reading materials on the plane and it sounded very interesting to me, it sounded a lot like tobacco had sounded, and so I just right then and there, and a bit at my wife’s urging, decided it was something I was going to get interested in.” Shortly afterward, Susman worked pro bono to help thirty-seven Texas cities stop the construction of coal-burning electric utility plants in the state.
Susman saw many parallels with the tobacco suits in the form of the misinformation campaigns, but also recognized that such tactics can be hard to prosecute:
It’s very much a legal gray area. Companies enjoy a First Amendment right to petition the government and speak their minds, it’s part of free speech. Even if they are saying it in conspiracy and collusion with one another, as long as they are saying things, expressing opinions, it is protected by the First Amendment. And that’s clearly an argument [defendant companies] are making against us in this case, that we are just complaining about something that is protected by the First Amendment, the Noerr-Pennington doctrine, so I think it is very difficult under existing law to hold companies responsible for promulgating bad science. Laws can be passed but right now it is very difficult to hold people responsible for promulgating junk science. However, to the extent that there is a good faith belief on their part, they enjoy that right, so we could try to prove they knew the information they were spreading was false and being used to deliberately influence public opinion—that would override their First Amendment rights.
Sandbags for protection of Kivalina shoreline, along the Chukchi Sea coast. (Photograph by Christine Shearer, August 2008.)
This is why, Susman said, lawyers prosecuting such cases strive to get to the discovery phase of a trial in order to demonstrate industry knowledge of the falsity of their claims. Indeed, public health historians affirm such documents have been crucial to their research. Without documentation, allegations that corporations know they are misrepresenting science remain in the realm of speculation, in both the court of law and, in many ways, the court of public opinion. Steve Berman, who helped gain the release of the internal documents of tobacco manufacturer Liggett and secure the industry’s settlement of the state suits leading up to the master national settlement, believes concrete evidence of industry knowledge is an important factor but not in itself sufficient to bring about successful liability: “The first forty years of tobacco, they won every case, despite evidence of harm.” The first step to a successful claim, he said, was having a case reach the discovery and trial stage, which was being prevented by judges invoking the political question doctrine, as they had for previous climate change lawsuits: “What is or isn’t a nuisance is something that courts have struggled with for over a hundred years. If you want to point to a particular law in effect, that is a preemption issue, but I don’t think a proper analysis is the political question. With a political question, everything gets knocked out, you don’t have to deal with the other issues.” A political question, in effect, means that a legal claim is an issue for the executive and legislative branches, not the courts.
Defendant companies, in their response, split up into three groups: power, oil, and coal. Each group filed multiple motions to dismiss. Although none of the defendant lawyers agreed to an interview or to be quoted, some spoke to me to help clarify the specifics of the legal arguments in the motions. If the judge were to accept the defendant motions for dismissal, Kivalina’s lawsuit would be thrown out before going to the discovery and trial phase.
Oral arguments for the lawsuit were scheduled for May 2009. But, shortly before, Judge Saundra Armstrong of the Northern District of California announced that a hearing would not be necessary. On September 30, 2009, Judge Armstrong issued a ruling. She ruled that the political question doctrine did apply—the Kivalina claim, she said, necessarily involves cost-benefit analyses that the executive and legislative branches must speak to before the judicial branch can act, making the claim a “political question” preventing legal adjudication.
Judge Armstrong also went on to deny the village of Kivalina legal standing to bring the case, arguing that global warming is too ubiquitous to be “fairly traceable” to the defendants’ emissions, as required for standing, and that while states have the right to bring public nuisance suits, Kivalina does not, thereby denying Kivalina’s rights as a sovereign nation. In dismissing Kivalina’s claim on grounds of both political question and legal standing, Judge Armstrong declined to address the secondary claims of civil conspiracy and concert of action. The actions of defendant fossil fuel companies in denying climate change went unaddressed.
With Kivalina’s claim dismissed for now and the fate of future climate change lawsuits uncertain, the village’s longtime residents must look to other means to protect themselves and their homeland.
In August 2009, I phoned Kivalina City Administrator Janet Mitchell for an update on the relocation. She sounded quite despondent. This was hard because during my visit the previous year, Janet had been the most upbeat of the people I’d met, knowing the task ahead was difficult but confident that it could be achieved, that various projects and agencies could come together to make Kivalina’s safe relocation possible. Such optimism was now completely stripped from her voice. When I asked what progress had been made on the relocation, she replied with a flat “None.” Indeed, in talking to her it became quite clear that, beyond completion of the seawall, little else had moved forward with the village’s needed relocation. Without the support to move things forward, the informal plan is apparently to secure the village of Kivalina where it is, on an island that is eroding underneath their feet.
This is the situation of Kivalina today. Fighting to be relocated, and hoping until then that their seawall proves resilient. Despite ancestry in the harsh Arctic going back thousands of years, this may prove the most difficult struggle yet. And the world keeps warming, the ice keeps melting, and the storms keep coming.
Although climate change is often discussed as an environmental problem, its root causes are social. It stems from the fossilized carbon emissions we spew into our atmosphere and from the relations of power that make addressing this problem so difficult. The dangers of climate change have become clear, imperiling people throughout the world like those in Kivalina, and it is time to act. To fail to do so is to leave this issue to the small number of powerful players who exert so much influence over US and global policy, many of whom have worked very hard to dispute and downplay climate change and block meaningful action. We cannot afford to leave the fate of our planet in their hands. It is up to all of us.
