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Kivalina update...the energy companies move for dismissal

Catching up on the "Most Dangerous Litigation in America: Kivalina," we see that the many energy companies being sued for defending their right to produce energy have moved for dismissal in Native Village of Kivalina and City of Kivalina v. ExxonMobil Corporation et al. (No. 08cv1138-SBA). The companies filed the motion June 30th in U.S. District Court, Northern District of California, Oakland Division. (Available here as .pdf file.) From the introduction:

This case asserts tort claims without precedent in the annals of American law. Plaintiffs seek to hold a handful of U.S. businesses - including the Oil Company Defendants submitting this motion - liable in damages, on nuisance and conspiracy theories, for what plaintiffs themselves explicitly allege to be harms resulting from centuries of all human activities across the entire planet Earth. Even assuming the property losses plaintiffs assert could be traced to human-induced changes in the global climate - itself a staggeringly difficult problem of factual proof - no cognizable U.S. tort law, either federal or state, offers plaintiffs any basis for holding a small collection of defendants liable for the supposed atmospheric effects of all historical human industrial, commercial, agricultural, and residential activity worldwide.

Judge Saundra Armstrong has scheduled a hearing for December 9.

The "Democracy Now!" radio program, the premiere hard-left radio news program, had an informative interview earlier in July with Steve Susman of Susman Godfrey explaining the rationale for the litigation. Susman:

The case is a nuisance case. The theory is basically, you can't do something on your property that prevents the enjoyment of mine. I mean, if you were barbecuing and ashes from your barbecue pit fell on my house and burned it up, that's a perfect nuisance case, and you would be liable under the common laws, as long as we've had common law. Now, this is a little more direct, because what they're putting in the atmosphere hurts everyone in the world, for sure, and there are a lot of people putting the stuff up there. So it's very difficult--impossible to get all of the wrongdoers in the same courtroom. And that's where we're testing the theory.

In a second segment, interviewer Amy Goodman talks to John Holdren, professor of environmental policy at the Kennedy School of Government at Harvard University.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.