The 2011 Bering Sea Superstorm battered Kivalina’s coastline on November 9, 2011, just a few weeks before attorney Matt Pawa argued Native Village of Kivalina v. Exxon Mobil on a sunny morning in San Francisco on November 28. The National Weather Service sent warnings and alerts several days before the storm hit Kivalina. So villagers prepared as best they could, although nothing could be done in the few days before the storm to restore the safe extent of sea ice that buffered the village from prior severe storms. The extratropical cyclone blasted the village with category 3 hurricane-force winds, reigniting conversations about emergency storm shelters. But some villagers felt concerned that with the storm brought a dangerous focus on short-term emergency planning that could distract from the most critical need facing Kivalina—to relocate the entire village out of harm’s way to safer ground.
The Kivalina plaintiffs are seeking compensation for climate change–related damages, including the potential $400 million cost to relocate the village away from melting permafrost and eroding coastlines. The plaintiffs argue that dangerous levels of greenhouse gases emitted by the defendants—24 oil, gas, and coal companies—arise to a nuisance under federal common law. Plaintiffs also argue that a handful of the defendants are engaging in conspiracy to promote false scientific debate on climate change. The Northern District of California dismissed the case on standing and political question grounds. The case is now in the hands of the Ninth Circuit. The Native Village of Kivalina awaits a decision on whether it will win its day in court, which could take up to one year. Thirty other villages await similar fates unless coordinated efforts are made to tackle climate change–related relocation more systemically. Six villages, including Kivalina, must relocate within the next 10 years according to the U.S. Army Corps of Engineers. (Photo is of leaders from Kivalina, who traveled to San Francisco to hear oral argument, and their lawyers, in front of the courthouse. For more, visit the Center for Race, Poverty, and the Environment‘s website.)
The Kivalina case is unprecedented. Some might call it a long shot. It’s unclear how many other Alaska Native Villages will vote to litigate for relocation damages. During oral argument before the Ninth Circuit, Judge Clifton asked why there are not more cases like this one? The legal bandwidth for cases seeking recognition of climate change harms has been expanding slowly since the Supreme Court decided Massachusetts v. EPA and American Electric Power v. Connecticut but not enough to include compensating injured plaintiffs for damages—the issue at the heart of climate change. Given the shaky ground (federal common law) upon which its case sits, Kivalina villagers are looking beyond litigation to other adaptation measures, including government-to-government consultations with federal agencies coordinating relocation efforts.
Governmental obstacles to relocation is the topic of our paper titled “Initial Assessment of Lead Agency Candidates to Support Alaska Native Villages Requiring Relocation to Survive Climate Harms.”
A caution must be given to readers of our paper that it does not include primary source information from Alaska Native villagers faced with relocation. Rather it is a literature review that widely consults agency documents and authorities with respect to relocation delegated by Congress. It must be made clear that the contents of this paper do not represent the views of impacted communities. Thus, this approach to the issue is limited and demands fuller treatment.
If a lead agency is authorized to fund, coordinate, and manage relocation of Alaska Native Villages rendered uninhabitable by climate change, another danger exists. This danger tests the article’s main argument that it is critical to the ultimate success and coordination of relocation efforts of Alaska Native Villages that a federal agency be assigned lead authority. A federal lead agency may backfire, stripping the villages of their decision making power, which could be more harmful and destructive to the future of the villages than the climate impacts themselves. Environmental justice attorney, Luke Cole, perhaps best articulated this issue decades back (it’s not a new problem). Luke was the founder of the Center for Race Poverty and the Environment and he was the lead attorney on the Kivalina case before his tragic death in 2009. He wrote:
“The law is dangerous to social movements because it is a cocooning and self-referential game in which its players believe they are important simply because they are playing…. In a very real way, the legal groups are re-creating one of the roots of environmental injustice: the making of decisions by people not affected by those decisions.”
Laws and policies promoting and supporting federal agency involvement are critical to a systemic approach to climate-induced relocation. But a legal and policy approach to climate adaptation will surely fail if the end result is that federal agency involvement—either intentionally or more likely de facto—regulates people out of existence. At the Alaska Forum on the Environment in Anchorage last February, Ida Hildebrand voiced her concern that Arctic peoples are “being regulated out of our cultures. Our fish. Our waters. Our land.” Climate change must not emerge as another excuse for colonialism and conflict.
Our paper is but one of many guideposts on the path toward the long view of climate adaptation. It clarifies the need for forward-thinking relocation planning in response to slow-onset, creeping environmental changes such as coastal erosion and permafrost melt in addition to sudden-onset events exemplified by the recent storm surge. Relocation frameworks must protect and prioritize community decision-making, respect fundamental human rights, and timely serve communities by promoting and protecting the root of their spirit and their power so that they may remain rich with knowledge, culture, and relationships.