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Tales from the Activist Courtroom: Kivalina v. ExxonMobil Corp.

In 2008, activist plaintiffs’ attorney Matt Pawa thought he had found his golden ticket: the first tort-based climate case against energy manufacturers that stood a possible chance in court. He thought he was armed with the right claims and that his plaintiffs’ cause was compelling. Unfortunately for Pawa, a federal judge in California thought differently and rightfully shut him down.

This case is the next in our series: Native Village of Kivalina v. ExxonMobil Corp.

In the mid-2000s, Kivalina, a 400-person fishing village on the coast of Alaska, began to experience severe flooding and coastal erosion, which it claimed was caused by greenhouse gas emissions produced by energy manufacturers. In 2008, the town, represented by Pawa and other attorneys from plaintiffs’ class action law firm Hagens Berman, sued 20 energy producers for public nuisance and conspiracy, claiming that they were “responsible for a substantial portion of the greenhouse gases in the atmosphere that have caused global warming and Kivalina’s special injuries.”

At this point, the few public nuisance cases that had gone to court had been dismissed, but Pawa believed Kivalina would be more successful because the charge of conspiracy was something no previous public nuisance case had brought forth, but was one “courts routinely addressed.” “The kind of harms to property and public welfare caused by global warming are classic public nuisance injuries,” Pawa said.

Much to Pawa’s dismay, the courts did not find  the lawyer’s argument compelling enough to allow the case to proceed. Much like 2005’s Comer v. Murphy Oil, which was also argued on the grounds of public nuisance,  the District Court for the Northern District of California dismissed the case on the grounds that the case involved issues that should be left to the political branches of government and were not appropriate to be heard in the courts.

District Court Judge Sandra Armstrong ruled that making a decision would have required the court to decide “what would have been an acceptable limit on the level of greenhouse gases emitted by the Energy Producers,” a , determination that fell under the jurisdiction of the Environmental Protection Agency—not the court’s.

Unsatisfied, Pawa and his plaintiffs appealed Armstrong’s ruling, but the Ninth Circuit Court of Appeals upheld the District Court’s decision. The U.S. Supreme Court later denied the plaintiffs’ request for it to review the lower courts’ decisions without comment.

Kivalina is an example of plaintiffs’ attorneys seeking to stretch tort law beyond its limits in an effort to extract damages from manufacturers in America and line their own pockets. The Manufacturers’ Accountability Project was formed to expose behavior like Pawa’s in Kivalina, the one that started it all, and we will continue to shine a light on this kind of abuse of the legal system.