Kivalina climate change litigation presents new context for familiar legal questions
The latest in the growing number of climate change lawsuits is Native Village of Kivalina, Alaska v. ExxonMobil, et al., Case No. CV-08-1138, in the United States District Court for the Northern District of California. Previous tort-based climate change lawsuits have largely been dismissed on political question grounds in which the courts have resisted taking on the issue of global warming before global warming legislation and regulations have been implemented by the political branches of government. While the Kivalina case raises additional and novel theories of civil conspiracy that must be watched closely, one of the key issues in the case will be the familiar question of the appropriate role of regulatory findings in establishing causation in tort litigation.
The Village of Kivalina, located in northwest Alaska, comprises about 1.9 miles and has approximately 399 residents. In this lawsuit, the villagers allege that global warming has caused the melting of Arctic sea ice which formerly protected the village from winter storms, and that the increased pace of the melting ice has caused erosion and contends that, "if the entire village is not relocated soon, the village will be destroyed." Specifically, the villagers have alleged that 24 oil, gas and power companies have substantially caused this global warming and the damage to the village. Plaintiffs are seeking hundreds of millions of dollars in damages to compensate the villagers and relocate the village. The Kivalina lawsuit is at an early stage and will be watched closely.
Kivalina is only the latest lawsuit to raise the complex question of what role regulatory findings and conclusions should have in resolving the question of specific causation in tort based climate change litigation where companies are being alleged to have caused or contributed to property damage and personal injury from their greenhouse gas emissions. Regulatory determinations that carry a government seal of approval and appear to be reached by significant research and study can be very persuasive and influential for jurors asked to resolve complex questions of science. In the climate change area, for example, the Intergovernmental Panel on Climate Change's recent "conclusion" that the emission of greenhouse gases from human activities has resulted in a measurable increase in temperature, which in turn has significant local, national and global health and environmental effects, could carry significant weight with most jurors. But should this type of conclusion be admissible as evidence in a courtroom?
In many tort cases, information and data that provide a basis for forward-looking regulatory action will not be reliable courtroom evidence. The questions presented in regulatory and tort arenas are quite different. A tort plaintiff must establish that an agent is capable of causing, and more likely than not, did cause the harm at issue in the case. It is insufficient simply to establish that an agent could cause a particular harm, or sometimes causes a particular harm. Rather, in a tort case, a defendant is not liable unless the plaintiff establishes that it is more likely than not that the defendant caused the specific injury alleged by the plaintiff. In contrast, regulators are not in the business of making individual determinations of cause and effect. Instead, they have a forward-looking mission to reduce risks to the public. In implementing this responsibility, regulators typically have a much lower threshold for action. A lawyer who understands the difference between regulatory science and courtroom science will be well-equipped to use regulatory information effectively and to challenge the use of regulatory information that does not pass the judicial threshold for admissibility.
