Several lawsuits have been filed in federal district court asserting that large emitters of greenhouse gases are responsible for rising sea levels and other harms attributable to global warming.  In this Emerging Issues Commentary, Dustin Till of the Marten Law Group discusses one of the most recent lawsuits, Native Village of Kivalina v. ExxonMobil Corp., in which a native Alaskan coastal village alleges that defendant power companies greenhouse gas emissions constitute a nuisance and are responsible for thinning sea ice and increased storm surges that are forcing the village to relocate.

After providing background information on this case and reviewing the plaintiffs allegations, Mr. Till looks at some prior nuisance lawsuits that sought relief for climate change impacts under federal common law but were unsuccessful.  Noting that the courts in those cases found that the climate change claims involved non-justiciable political questions, Mr. Till comments that the Kivalina plaintiffs will likely face similar jurisdictional challenges as well as other significant hurdles, and that it remains unclear whether they will prevail.

“At least three federal district courts, including the same California federal court where the Kivalina case is pending, have dismissed similar lawsuits on grounds that they presented political questions over which the courts had no jurisdiction,” Mr. Till writes.  “As a result, federal courts have yet to address the merits of climate change nuisance claims — including the potentially vexing issue of causation. The defendants will undoubtedly raise similar jurisdictional challenges, and if prior litigation is any guide, the Kivalina plaintiffs face an uphill battle to recover the costs of relocating their sinking village. . . .

“In Connecticut v. American Electric Power Co., eleven states, the City of New York, and various environmental groups sought an injunction to cap carbon dioxide emissions from six major electric utilities. . . .  In October 2006, the State of California filed a similar lawsuit, California v. General Motors, seeking damages from six automobile manufacturers on grounds that greenhouse gas emissions from vehicles manufactured by the defendants constituted a public nuisance. . . .  Finally, in August 2007, the U.S. District Court for the Southern District of Mississippi dismissed a class action nuisance lawsuit alleging that greenhouse gas emissions from petrochemical companies exacerbated the severity of, and damages caused by, Hurricane Katrina.”

Mr. Till said the Kivalina case will be closely watched.

“While it remains unclear whether Kivalina will prevail, success on the merits could open a floodgate of similar litigation by other coastal jurisdictions that are grappling with the costs of adapting to rising sea levels and other environmental changes attributable to global warming,” he writes.

Subscribers to www.Lexis.com may read much more about the case and its implications by purchasing Mr. Till’s entire expert commentary at Marten Law Group: Threatened by Rising Seas, Native Village Seeks Lifeline in Federal District Court.