Situated at the tip of a narrow barrier island off the northwest coast of Alaska is the tiny city of Kivalina. The residents of the village number fewer than 400, almost all of whom are members of the Village of Kivalina, a self-governing tribe of Inupiat Native Alaskans.
For decades, warming seawaters have been threatening the village’s survival. The villagers depend on a barrier of sea ice that forms each fall to shield their homes and infrastructure from severe coastal storms. In recent years, the ice barrier has been forming later than usual, melting earlier than expected, and is providing less protection from storm activity. The result is severe soil erosion that threatens to wipe Kivalina off the map. A U.S. Government Accountability Office report put it this way: “Remaining on the island is no longer a viable option for the community.”
However, the energy producers contend that allowing courts to address cases such as Kivalina would create a regulatory morass, in which courts develop a host of differing standards for liability rather than a uniform regulatory scheme imposed by Congress.
“Federal courts have no role in regulating emissions under federal common law,” says Damien Schiff, principal attorney for the Pacific Legal Foundation. “A federal court should not be participating in the regulatory response to global warming.”