Kivalina v. ExxonMobil Corp., et al.

Kivalina v. ExxonMobil Corp., et al. (2008)

The Kivalina complaint was filed February 26, 2008 by the native Inupiat village of Kivalina and is currently being litigated.   The complaint alleges that defendant energy and electric producers’ actions released carbon dioxide, which fueled the effects that climate change is having on the village.  Kivalina is a village of approximately 400 people located on the tip of a barrier reef about 70 miles above the Arctic Circle in Alaska.  The village must be relocated because the melting of ice which formerly acted as a wave barrier.  Without this barrier, the village is beginning to fall into the ocean.  Both the U.S. Army Corp of Engineers and the U.S. Government Accountability Office concluded that the ancestral home of the Inupiat must be relocated at an estimated cost of $95 million to $400 million.  

First, the complaint states claims of public and private nuisance under federal and, in the alternative, state law.  A nuisance occurs when a defendant unreasonably or substantially interferes with the enjoyment of one’s property.  Nuisance claims have been rejected by all previous courts in the climate change context.  The main problem with a nuisance claim for climate change damages has been showing that individual polluters’ emissions were the proximate cause of the plaintiffs’ harm and to what degree that harm was increased due to the defendant’s emissions.  These causation questions also trigger separation of powers issues as well.  

The plaintiffs hope to avoid these causation issues through the additional claims of civil conspiracy and “concert of action.”  These claims allow the plaintiff to hold multiple defendants joint and severally liable when it is impossible to determine which defendant is responsible for the individual harm.  The complaint claims the defendants “conspired to create false scientific debate about global warming in order to deceive the public.”  Methods mentioned in the filing include the using front groups, purchasing and authoring misleading advertising, funding critics of questionable expertise, denying the scientific community’s current views, and denying the effects of climate change on the Arctic.  The complaint also states that the defendants engaged in these activities despite the fact they “knew or should have known of the impacts of their emissions on global warming and on particularly vulnerable communities such as coastal Alaskan villages.”  The complaint alleges that profits and the ability to continue to profit without addressing climate change were placed above the need to prevent harm.

In order for the village to prove a civil conspiracy and concert of action, the plaintiffs are using a strategy similar to that of state governments against the tobacco companies.  States in those suits used concert of action and civil conspiracy theories based upon fraud claims based on both common law and statutory law.  Civil conspiracy only requires that two or more persons enter into an agreement to commit a wrongful act that results in harm.  Here the plaintiffs claim that the defendant corporations agreed to perpetuate a misinformation campaign on the public, which resulted in harm to the plaintiffs and the public.

A concert of action can occur in three ways.  The first requires a defendant to commit a tortious act in concert with another or pursuant to a common design.  The second occurs when the defendant knows that the other's conduct constitutes a breach of a duty and gives substantial assistance or encouragement to conduct the breach.  The third way of committing a concert of action tort occurs when one gives substantial assistance to another in accomplishing a tortious result and its own conduct, separately considered, constitutes a breach of duty to the third person.  In this instance the plaintiffs claim that the defendants acted in concert to provide misleading and false information so as to continue to cause the nuisance, global warming.   

View the case document here