In Kivalina v ExxonMobil, I and two other students represented ExxonMobil in ‘moot court’ in a climate change law class at Vermont Law School. We won. In fact, my team crushed the environmental law students who represented the impoverished Native Alaskans of the Village Kivalina.
ExxonMobil (and about a dozen other oil companies) was sued by a small island village located along the northern coastline of Alaska called Kivalina. The claim was that the oil companies had altered the earth’s atmosphere so much that its climate changed to the detriment of the village. The village is, as you read this, literally being eaten by the ocean at rates never seen in history. They wanted the oil companies to pay for relocating the villagers. They also sued to expose a conspiracy to mislead the public - the so-called “climate denial” you hear so much about.
Exxon defended itself on several grounds, and easily won the case. Although climate change was not under question, Kivalina could not prove that Exxon et al were the actual cause of their harm. This is called traceability - basically, they couldn’t trace the exact carbon molecules back to the oil companies.
So, the case was thrown out for ‘lack of standing.’ Standing is the first hoop of getting into court - you have to show a clear connection between the harm and the cause. If you can’t make it past this first test, the case is thrown out. None of the ‘merits’ or arguments for or against are even discussed. Such is the law.
Ironically, Kivalina was represented pro-bono (free) by one of the most controversial and powerful attorneys in America, Theodore Olson. Recall, Ted is a conservative-republican, anti-Clintonian who argued and won in Bush v Gore in the Supreme Court. In fact, he’s won 20 out of his 23 SCOTUS cases, almost all for conservative causes.
Olson, strangely, has taken a severe left turn as of late (perhaps to make up for a career of bullying liberals). In addition to representing the poor people of Kivalina, he’s currently the co-lead attorney in the Prop 8 same-sex marriage case that everyone is so stoked about. So the man who wrought George Bush upon the world is now representing core liberal causes, thus demonstrating that America’s cultural memory is astoundingly atrocious.
There are about 400 Native Alaskans (technically Inupiat Eskimos) in Kivalina, and their island is literally eroding away by rising sea levels and melting because much of the land is permafrost - both issues are caused (in part) by a changing climate. Warmer temperatures causes thermal expansion in the ocean, and the temperatures melt glaciers and sea ice. This causes sea levels to rise, and islands and coastal cities have to deal with the impacts (they were originally planned to handle a little bit of sea rise, but not the aggressive rise occurring today).
The above Kickstarter, and the quasi-point of this long post, is for a documentary about the lives of the Kivalinans - it’s about the people, and not about the legal case.
Kivalina People is being directed by a young film maker from Brooklyn named Gina Abatemarco, who decided to film and produce the documentary about 5 years ago.
I’ve been following the plight of the Kivalina for several years, hoping that they’d have their justice, or at least a good day in court. They haven’t. Their island is disappearing, and it will cost tens of millions to move them to new territory. I hope Gina’s documentary is viewed by millions.
One of the most important skills I learned in law school was how to argue - convincingly - the opposing side. I learned that the law is skewed to protect the accused, even in cases where the accused is clearly liable. We won that case in class on a technicality. And in court, technicalities can be cold and cruel son’s a bitches.
