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Appeals court rejects Alaska village's bid to tie global warming to industry

Mike Campbell
Alaska Dispatch photo

A bid by the Northwest Alaska village of Kivalina to link global warming to the actions of oil, coal and power companies was rejected Friday by the 9th Circuit Court of Appeals, which said the village of fewer than 400 people, still recovering from recent flooding, lacked the standing to sue.

According to The Associated Press, Judge Sidney Thomas said that Kivalina is being “displaced by the rising sea,” but must seek a legislative solution to its problem. Defendants, BP America and Exxon Mobil Corp. had no comment for the AP. There were 20 other defendants, including Chevron and ConocoPhillips.  Thomas was part of a three-judge panel that unanimously ruled against Kivalina.

Worsening its water woes, Kivalina, 70 miles north of the Arctic Circle in northwest Alaska, has been drenched with record heavy rain for two weeks this August. High water flooded the lagoon on the backside of the community, which sits on a barrier island with the lagoon on one side and the Chukchi Sea on the other. Flooding washed out a pipe that feeds water to the city’s water supply.

With that pipe damaged, the Kivalina school had no water, and classes at the communities school have been delayed more than a month; they are due to begin next week.

Both the city and Alaska Gov. Sean Parnell have issued disaster declarations. With Parnell’s disaster declaration, the city will be eligible for disaster relief funds, but those won't come until later, after necessary repairs have been completed and the full extent of damage has been determined.

In its decision, the 9th Circuit Court of Appeals said it is the wrong branch of government to try to help Kivalina. 

"The Supreme Court has held that federal common law addressing domestic greenhouse gas emissions has been displaced by Congressional action," Thomas wrote in the lead opinion. "Our conclusion obviously does not aid Kivalina, which itself is being displaced by the rising sea. But the solution to Kivalina's dire circumstance must rest in the hands of the legislative and executive branches of our government."
     

Warming sea temperatures have in recent years left Kivalina more exposed to rugged storms that once were partially checked by sea ice during winter.

Judge Philip Pro, in a concurring opinion, said it the effects of global warming have an array of sources well beyond anything the defendants may have contributed. 
     

"Kivalina has not met the burden of alleging facts showing Kivalina plausibly can trace their injuries to appellees," Pro wrote. "By Kivalina's own factual allegations, global warming has been occurring for hundreds of years and is the result of a vast multitude of emitters worldwide whose emissions mix quickly, stay in the atmosphere for centuries, and, as a result, are undifferentiated in the global atmosphere.

“Further, Kivalina's allegations of their injury and traceability to appellees' activities is not bounded in time. Kivalina does not identify when their injury occurred nor tie it to appellees' activities within this vast time frame. Kivalina nevertheless seeks to hold these particular appellees, out of all the greenhouse gas emitters who ever have emitted greenhouse gases over hundreds of years, liable for their injuries."
 

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