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My Journey Into Kivalina v. ExxonMobil et al.

By Christine Shearer

01 December, 2010

In 2008, a small Inupiat village in Alaska sued ExxonMobil and 23 other fossil fuel companies including Peabody Energy and BP for contributing to the destruction of their homeland, and charged a smaller subset with deliberately creating a false debate around climate change science. You might have heard of the lawsuit—Kivalina v. ExxonMobil et al. The suit was framed by some as a David and Goliath story, with people wondering if it would be the first successful climate change claim.

Among those whose attention it caught was me. My environmental law professor read a headline about the public nuisance suit in one of our classes. Even though I had already started a dissertation, I thought, ‘I have to write about this.’ That other dissertation was already forgotten.

I was particularly interested in the lawsuit for a reason: I was part of a research team assessing the biggest human impacts to marine ecosystems. We made these assessments by collecting data from hundreds of marine scientists. It was during this project that the full extent of climate change really started to wash over me—the acidification of the oceans, the destruction of coral reefs, the dangers from sea level and sea temperature rise ... These problems are current, growing, and potentially irreversible. My little brother, my family and friends, their kids—what kind of planet are we leaving them? The well–financed campaign to deny climate change no longer seemed just annoying, but reckless and unconscionable, and it was interesting to see someone holding its perpetrators accountable.

For the dissertation I figured I would just focus on the lawsuit, which raised many interesting issues in itself, as it was modeled after the suits against Big Tobacco, and had attracted some of the same lawyers. No need to actually go above the Arctic Circle, right? (I admittedly hate being cold, and global warming sounded just fine to me until I realized it did not mean the whole world would turn into Rio de Janeiro.) Luckily for me, my wise mentors told me there was no way I could write a dissertation about the lawsuit without going to Kivalina. Defeated, I reluctantly agreed.

The Lawyer

The next step was talking to Luke Cole at the Center for Race, Poverty, and the Environment in San Francisco, part of the team who had filed Kivalina’s lawsuit. Luke was a lawyer who had graduated with a Harvard Law degree and went on to work on environmental justice cases. Environmental justice refers to the concentration of hazardous activities like coal plants, oil refineries, and waste sites [pdf] near poor, working class, and communities of color, who are seen as “paths of least resistance” for locating the less savory aspects of our industrial development. Luke helped communities sift through the endless legal procedures and paperwork to challenge the continuing location of these facilities (and their harmful health and environmental effects) in their neighborhoods, even extending his work to tribal populations in Alaska. He was therefore a busy person and not exactly swimming in free time, but still offered to help me out, including meeting for lunch so we could talk about the Kivalina lawsuit.

In person, Luke explained to me why they had filed the lawsuit: “This case is an extension of the environmental justice movement. The suit is seeking to give voice to people who weren’t at the table when the decisions about this particular environmental hazard were made. No one asked the people of Kivalina, y’know, ‘Would you like to have your environment ruined?’ This is the only way they have of expressing themselves in the environmental justice process. It’s late in the day, it’s inadequate, it’s a blunt tool, it’s the only tool they have left.”

He told me what I had to do to travel to Kivalina: take a plane to Anchorage, another plane to a town called Kotzebue, and then a cargo plane to Kivalina. Two thoughts immediately popped into my head. First, this trip would have a high carbon footprint, which struck me as slightly hypocritical, but I eventually had to write it off as justified for the greater good. And, second, a cargo plane? I suddenly had an image of myself on a flight with crates and livestock. He gave me numbers in Kivalina to make arrangements.

I said good–bye to Luke, and he told me happily that he would soon be going on an overdue vacation. Sadly, he lost his life on that trip, in a car crash, leaving behind a wife, a son, and a lot of grieving communities that he had helped during his career, including Kivalina.

The Trip

After saying good–bye to Luke I dialed up some of the numbers in Kivalina he had given me. He told me I should try the school to see if I could stay there, since Kivalina does not exactly have hotels. Much of the school was out for summer vacation, however, and it was clear that the janitor had no idea what I was talking about. I called the mayor and members of the tribal council, who told me to call the city council. I called the city council.

“Hi,” I said stupidly. Making these calls repeatedly was making me feel no less awkward about it. “I, uh, I’m interested in the lawsuit and was hoping I could travel to Kivalina. Is there some place I can stay?”

“Yes, possibly,” the voice on the other line said.



I did not get much further than that, but booked my flight anyway, figuring I’d work it out when I got there. I just would not tell my mom that I had no idea if I had a place to stay.

On the day of my flight I was nervous, and treated the new electronic check–in at the airport like a mini–crisis—I’m already anxious, dammit, can’t something be familiar? But as I flew to Anchorage, I began to get a little excited. This was like an adventure to a new place. I was going to meet Alaska Natives! Maybe they’d take me fishing, or whaling. It was all suddenly very Dances with Wolves.

I was also happy to find there was no livestock on the cargo plane, although it was definitely a tiny plane, and I am pretty sure the few of us onboard made a non–verbalized agreement to sit on opposite sides so it did not tip over. I looked out the window, amazed at the vastness of northwest Alaska, the way water interacted with the landscape, cutting into it, through it, and around it, dotted with only the occasional signs of human life.

While staring out the window at the sea the plane suddenly began to descend, as if going into the water. Then I saw it: a tiny thin strip of land, surrounded on one end by the sea and the other by a lagoon. Kivalina, population 400. The pilot looped around and landed on the north end, a dirt road that served as the landing strip.

I stepped off the plane and grabbed my bag, uncertain what to do next. To my relief a woman on an all–terrain vehicle looked at me and asked, “Christine?” I nod. “I’m Janet,” she said, giving me a pleasant smile. She told me to climb on back, and we zipped toward the city center. It took only a few minutes to get there, already halfway down the island. During the ride she told me she was almost late picking me up because the city was having problems with the water. “Is there water?” I asked, trying to sound nonchalant and expecting an ‘Of course.’ “We’ll see,” she said. I gulped. I had a backpack full of food because Luke had told me there was only one small general store with very expensive items, since most of the village lived off subsistence. But it never occurred to me to bring water. Or a water purifier, since I knew a nearby mining operation had been leaching heavy metals into the village’s freshwater source, another case Luke had worked on with the village.

We got to the City Council, a small, wooden, two–story building. Janet introduced me to the other City Council members, and offered me a short tour of the island. As we walked, Janet told me that the village had been advised not to talk about the lawsuit. ‘Oh great,’ I thought, wondering why I was there. I wasn’t even sure if there would be water, poor me. But as Janet walked me around the tiny island, I finally realized the real issue for Kivalina is not necessarily the lawsuit. It’s the relocation. The island is eroding all around, and within a few decades, Kivalina will be mostly gone.

The Island

What became Kivalina was originally only a hunting ground, but like many Alaska Native villages, its seasonal inhabitants were ordered to settle down and enroll their children in school or face imprisonment. In exchange, they received basic infrastructure, a church, a health clinic, and a school. But their remoteness allowed them to carry on many of their subsistence cultural practices, making the village an interesting mix of modernity and tradition. At one point I ate walrus hand–dipped in a bowl of seal oil (quite tasty) while watching a TV channel featuring a Christian evangelist.

Some have tried to argue the island’s erosion is from natural processes. But our own Government Accountability Office (GAO) released a 2003 report [pdf] stating the village needed to be relocated immediately due to storm erosion from climate change, a finding backed by a 2006 Army Corps of Engineers report [pdf], which stated that Kivalina would be lost to erosion in 10 to 15 years. Kivalina traditionally enjoyed protection from storms by sea ice formation, surrounding and hardening the coastline. For the past three decades, however, the ice has been forming later and melting earlier, due to warming Arctic temperatures, leaving the shoreline vulnerable to erosion.

The need to relocate was not news to its longtime residents, who are very familiar with the land, tracing their heritage to the area back thousands of years. They had voted to move in the early 1990s but have had difficulty getting assistance, in large part because there are few U.S. policies in place to help communities relocate or “adapt” to climate change. How can we adequately prepare for something that so many political representatives will not even acknowledge is happening? People in Kivalina, however, do not have the luxury of denial. As resident David Frankson told me, “Your people don’t believe in global warming because they do not see our snow, our ice, how it’s melting.”

Sandbags for protection of Kivalina Shoreline along the Chukchi Sea coast. Photo by Christine Shearer, August 2008.

During that first tour, Janet walked me to the coastline bordering the Chukchi Sea. It was a mess of bulldozers, sandbags, and construction workers, working endlessly to try and lengthen the shoreline, which was steadily disappearing into the sea. Rocks were being placed on the southern end to act as a buffer against storms. We walked to the lagoon end, where the current was steadily eating away at the shore, undercutting one home so severely it was beginning to have its base eroded, held up only with sandbags.

Walking around the island, it was hard to believe the situation was not dangerous. I soon found out that it was. Residents told me about a big storm that hit the tiny island in 2004, taking away a chunk of shoreline, and leaving the school principal with the sea suddenly at his doorstep. That storm was followed by a series of other storms, swallowing up more land, threatening homes and the school, and forcing the villagers to build makeshift seawalls out of whatever materials were available. They have had seawalls fail on them, and had to engage in a dangerous evacuation via all–terrain vehicles—dangerous, because there are few places for the people to actually go. Many people in Kivalina have become informal emergency management responders.

A more stable seawall began construction in 2007, offering the people a brief respite after a long period of uncertainty and anxiety. But they know their island continues to erode, which resident Margaret Baldwin describes vividly: “the village is getting narrower and narrower and it’s eroding underneath, like the bottom of a tornado, like a funnel.”

Relocation, therefore, remains necessary. Yet Kivalina is not much closer to being moved than the day they put relocation to a vote nearly two decades ago. Their situation was laid out in a 2009 GAO report [pdf], aptly titled, “Alaska Native villages: Limited progress has been made on relocating villages threatened by flooding and erosion.”

That same year, the judge ruled on Kivalina’s legal claim. It was thrown out, dismissed as a “political question” unsuitable for the courts, although it is being appealed.

Kivalina is only one of a growing number of Alaska Native villages being affected by climate change, and a growing number of worldwide communities facing the permanent loss of their homelands. Meanwhile, it is business–as–usual around the world: Shell is trying to add to the risks already facing Alaska Natives by pushing for drilling in Arctic waters; a recent study suggests 2010 could be the largest annual carbon dioxide emissions yet; and while international officials are currently meeting for the 16th round of climate change talks—COP16, few expect a binding treaty to be agreed upon. It is clear that we cannot wait for change to happen—we all have to push for and begin making the changes we know are needed. In the words of Kivalina tribal administrator Colleen Swan: “Our peoples’ lives are in danger. And I hope people realize it, how serious this climate change problem is—it is a very serious problem. People need to be made aware of it, for their own sake.”

Christine Shearer is a researcher for CoalSwarm, part of SourceWatch, and a postdoctoral scholar at the Center for Nanotechnology in Society at UC Santa Barbara. She is managing editor of Conducive, and author of the forthcoming book, “Kivalina: A Climate Change Story“ (Haymarket Books, 2011).

Copyright 2010 Christine Shearer