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Kivalina claims climate change cover-up by energy companies

Alex DeMarban
A sandbar off Kivalina, Alaska
Tony Hopfinger photo
McQueen School with children playing on the playground in September 2011.
The Center on Race, Poverty and the Environment photo
The Kivalina seawall after the November 2011 storm.
Photo courtesy Janet Mitchell
The coastal village of Kivalina in Northwestern Alaska
U.S. Coast Guard photo
The Kivalina seawall in 2009.
Peter Law photo
The narrow village of Kivalina in 2009.
Peter Law photo
The remote Alaska village of Kivalina in winter.
Alaska Dispatch staff
An old church bell in Kivalina in 2009.
Peter Law photo
A honeybucket dump in the Northwest Alaska village of Kivalina in 2009.
Peter Law photo
A whalebone arch in the Northwest Alaska village of Kivalina in 2009.
Peter Law photo

The battle between some of the world's most powerful energy companies and an Alaska village that's losing ground to climate change heads to federal appeals court on Monday.

Nine Kivalina residents, having survived the recent mega-storm that walloped western Alaska, will be at the Ninth U.S. Circuit Court of Appeals in San Francisco to watch their lawyers argue that ExxonMobil Corp., BP, ConocoPhillips and other corporate Goliaths owe the village at least $95 million in damages.   

A key Kivalina argument charges that the energy companies are engaged in a conspiracy to cover up the link between their emissions and the earth's warming temperatures. A similar argument proved pivotal decades ago in helping smokers prevail in court against tobacco giants.

The Northwest Alaska village lost the first round of its lawsuit in 2009, when a U.S. District Court dismissed it, saying climate-change pollution needs to be regulated by Congress and the administration, not courts. The village lacked standing, the court said, because it could not show the companies' emissions caused the erosion threatening the village.

But Kivalina is optimistic this time around.

"What we have going for us is the science is changing by the day,"  and the causal connection between greenhouse-gas emissions and the climate is clarifying, said Heather Kendall-Miller, an attorney for Kivalina and head of the Alaska office of the Native American Rights Fund.    

Alaska spokespeople for ConocoPhillips and BP, and a ConocoPhillips attorney named in the case, would not comment about the companies' arguments.

A storm's brewing

The effect of climate change on Alaska's coastal villages was back in the news during last week's monster storm, called the worst to strike western Alaska in four decades.

As it bore down on Kivalina, many residents feared for their safety and wondered how much coastline this latest storm would wipe out, said Colleen Swan, a city councilwoman.  

The Inupiat village of 375, founded in the early 1950s when the federal government built a school there, clings to a low-lying barrier island about 80 miles northwest of Kotzebue.

In recent years, warmer temperatures have removed a wave-dampening layer of coastal sea ice, leading to increased erosion, the U.S. Army Corps of Engineers has reported.

Seven years ago, fall storms ripped away some 80 feet of land, destroying some teacher housing and other infrastructure, according to the Corps. Four years ago, during another storm, residents evacuated the village and waves punched out part of a new sea wall.

In this latest tempest, despite dire National Weather Service warnings that the village faced serious danger, Kivalina was largely unscathed. At the storm's height, winds howled from a favorable direction. And a new 14-foot seawall did its job, preventing erosion even though the Chukchi Sea nearly topped it. 

"We escaped by a hair," said Swan.

Finding a new home

The quarter-mile-long rock revetment, installed in 2009 by the Army Corps, will buy the village an estimated 10 to 15 years before it must move.

But in 2019, what then?

The village is trying to find a new site where it can rebuild, out of harm's way. But when it does, how will it pay to build a school, homes and other facilities, and to scrape roads and an airstrip on the tundra?   

That's where the lawsuit comes in. Moving could cost between $95 million and $400 million, according to figures from the Army Corps of Engineers and the General Accountability Office. That's at least $350,000 to $1.4 million for each village resident.  

The city and tribe hope their lawsuit -- Kivalina v. ExxonMobil -- forces about 20 of the world's largest oil, power and coal companies to cough up the cash.  

The village has prevailed against industry before. In 2008, with legal help from the San Francisco-based Center on Race, Poverty and the Environment, Kivalina forced mining giant Teck-Cominco to settle a lawsuit and spend $120 million on a pipeline to protect drinking water.

The center is involved in this case too, playing a lead role along with the Native American Rights Fund’s Alaska office.

Are oil companies to blame for Kivalina's woes?

To win, the village doesn't have to trace emission molecules to prove which company caused what damage, said Matt Pawa, Kivalina's lawyer from the East Coast.

"All we have to prove, like other victims of pollution," is that the defendants contributed to overall pollution, he said.

There's a critical second part to the lawsuit that makes it similar to the tobacco cases that smokers eventually won in the 1980s, said Kendall-Miller.

The village alleges industry is engaged in a conspiracy -- in part by funding junk science -- to cover up the link between their emissions and the rise in global temperatures.

Lawsuits against the tobacco companies weren't successful until it was shown they intentionally hid the link between smoking and the health problems, including lung cancer, it caused.

"There was the same question at that time: How is it possible to prove this?" said Kendall-Miller. "Back then people smoked all the time, and they did it voluntarily. The courts kept throwing cases out, until it was discovered that tobacco companies were engaged in a conspiracy. They knew all along it was bad for one's health but they had PR campaigns to say it was not."

The revelation that they had covered up the truth ultimately led to a huge settlement, she added.  

Contact Alex DeMarban at alex(at)alaskadispatch.com