(Photos: Kevin Horan)
The global-warming lawsuit isn’t Kivalina’s first foray into litigation. Soon after the Red Dog Mine – the world’s largest zinc operation, located 50 miles to the east – began operating in 1989, dead fish started showing up in the Wulik River, Kivalina’s primary source of freshwater. Examining the company’s discharge reports, Colleen Swan found what appeared to be several permit violations. Enoch Adams and five other members of the Kivalina Relocation Planning Committee sued the mine’s owner, Teck Cominco Alaska, Inc., for violating the Clean Water Act. In 2006 a U.S. District Court ruled in Kivalina’s favor.
The fight against the power companies is far more quixotic. Judges have repeatedly ruled that global warming is a political issue for legislatures, not a matter for the courts, and many people agree. Nevertheless, Kivalina’s argument – which is similar to the one that finally forced the big tobacco companies to pay billions in damages, after decades of failed attempts – is attracting widespread attention in the legal community. Stephen Susman, who defended Philip Morris in the 1990s, is one of nearly 20 attorneys who have signed on to represent the town. As Yale environmental law professor Daniel Esty observes, “The growing clarity of the science and understanding of emissions are giving these cases a greater bite and potential than they’ve had in the past” – particularly because of the conspiracy charge.
Before similar charges were leveled against the tobacco companies, most people viewed smokers not as victims but as willing participants in an ill-advised pastime. As Heather Kendall-Miller, an attorney with the Native American Rights Fund, puts it, “The prevalent point of view was, How can you hold tobacco companies responsible? Nobody is forcing people to smoke. But not only were tobacco companies profiting from smoking, they were making people believe it wasn’t as bad as they thought.”
Following that precedent, the Kivalina suit documents energy companies’ support of trade associations such as the Advancement of Sound Science Coalition, which was founded by Philip Morris’s PR firm to downplay the hazards of secondhand smoke and later refocused to discredit science about climate change. ExxonMobil is accused of channeling $16 million over a seven-year period to 42 organizations that promote false information on global warming. One is the George C. Marshall Institute, a think tank cofounded by the late Frederick Seitz, the former president of the National Academy of Sciences who also worked as a research adviser for R.J. Reynolds. (The academy later dissociated itself from his findings.)
Alan Jeffers, an ExxonMobil spokesman, responds that the company has never asked any such organization to take a position and has discontinued funding to some of them. While he won’t comment directly on the Kivalina case, he insists that ExxonMobil views climate change very seriously. “We’re taking action to reduce emissions in our operations and to help consumers reduce theirs through various technologies,” Jeffers says, “whether it’s making hydro-carbon use more efficient or exploring how to make next-generation alternatives like solar and biofuels more affordable.”
(Photos: Kevin Horan)
Not everyone sees Kivalina as a Native American David confronting a corporate Goliath. “As soon as I heard about that lawsuit on the news, I knew it must be Kivalina,” remarks an occasional maintenance worker in the village. “They’re just looking for somebody to pay to move their town for them. They have a legitimate case about global warming, but they’re totally dependent on fossil fuel. They even drive to the store because they don’t want to walk.”
Even Kivalina’s mayor, Bert Adams, believes that filing lawsuits isn’t going to relocate the town. “I think you’ve got to solve your own problems,” he says. “I don’t like the blame game.” In contrast to Kivalina’s approach, the similarly endangered community of Newtok, 470 miles south, recently began moving itself. Although red tape and lack of funds have reportedly delayed that effort, it hasn’t kept Kivalina from being viewed unfavorably by comparison. When Colleen Swan visited the capital, she heard that some state legislators consider Kivalina “a handful of disenfranchised militants.”
Swan doesn’t take comments like that very well. “My grandfather was a priest who told me to turn the other cheek and walk away from people if they give you trouble,” she says. “But there are some things you just can’t walk away from.”
Or swim or fly either. In the event of an unprecedented flood, boats and planes would be of little help in evacuating Kivalina. This summer the Army Corps of Engineers began work on a rock-reinforcement project to provide interim protection, but only a fifth of the necessary length was expected to be completed by fall. Meanwhile, the Corps is bringing in another 5,000 cubic yards of sand. “They’re just fumbling in the dark,” says Kendall-Miller.
As fall approached, Colleen Swan organized a teleconference between several state and federal agencies to plan for the storm season. The town continues to brace itself, awaiting not only unpredictable weather but a court ruling on whether distant corporations could someday be called to account for its fate.
“Is global warming at its peak, or is it going to get worse? No one knows the answers,” Swan says. “We’re talking about moving our village in a state that’s 65 percent wetlands. You have to wonder if any place is safe.”
An Inupiat hunter prepares to go whaling with a harpoon. Less ice means harder hunting.
Update: As of July 13, 2012, Kivalina’s case is still pending in US courts.