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Eskimo Village Loses Global Wa...

Eskimo Village Loses Global Warming Suit

By Rita Cicero, Andrews Environmental Litigation Reporter

A federal judge in California has dismissed public nuisance claims an Alaska Eskimo village brought against 24 oil and gas companies for allegedly endangering their health and welfare by producing large quantities of greenhouse gases that contribute to global warming and melt sea ice as a result .

Judge Saundra Brown Armstrong of the U.S. District Court for the Northern District of California said the Inupiat Eskimos were asking the court to make a political judgment that the defendants should be the only ones to bear the cost of contributing to global warming.

“Plaintiffs ignore that the allocation of fault and cost of global warming is a matter appropriately left for determination by the executive or legislative branch,” the judge said.

Commenting on the decision, environmental attorney Richard Faulk of Gardere Wynne Sewell LLP in Houston, who is not involved in the case, said the plaintiffs will likely appeal the dismissal of their federal claims.

However, the judge dismissed their state-law-based public nuisance claims without prejudice, thereby allowing the case to be refiled in state court to resolve those issues, Faulk said.

Judge Armstrong also determined that the plaintiffs lacked standing to bring the suit, Faulk added.

“There was no showing that the defendants’ actions were the ‘seed’ of their injuries, nor was there an allegation that specified how any emissions by particular defendants truly substantially contributed to the global climate,” he said.

The village of Kivalina and the state-recognized local government filed the suit last year in the District Court, alleging the residents would be forced to relocate because of the melting sea ice caused by global warming.

Kivalina, home to about 400 people, is located on a barrier reef between the Chukchi Sea and two rivers, 70 miles north of the Arctic Circle.

The suit alleged that companies including Exxon Mobil Corp., BP America, Duke Energy Corp. and Shell Oil Co. emit greenhouse gases that contribute to global warming, which in turn has melted the sea ice that historically has protected the village from storms that batter the coast of the Chukchi Sea.

The increased temperatures cause the sea ice to form later in the year and to break up earlier than usual, the plaintiffs say. In addition the ice is thinner and less extensive.

The complaint asserted conspiracy and public and private nuisance.

The suit was filed in California because many of the defendants have headquarters in the state or conduct the majority of their operations there. The named defendants include many of the nation’s largest emitters of greenhouse gases.

The defendants moved to dismiss the complaint, arguing that the plaintiffs lack subject matter jurisdiction and that the judge could not consider the merits of their nuisance claim because any resolution would require policy determinations concerning the use of fossil fuels.

Judge Armstrong agreed and granted dismissal, saying the plaintiffs were asking the court to decide who should bear the cost of global warming even though they acknowledge that “virtually everyone on Earth is responsible on some level for contributing to such emissions.”

She also agreed with the defendants that the plaintiffs lacked standing to bring the lawsuit, saying there is no realistic possibility of tracing any particular alleged effect of global warming to any particular emissions by any person, entity or group at any particular point in time.

(read online version)

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