The following claims are directly from the 2007 filing of Kivalina v. Exxon, et al . The facts were never in dispute, but the case was rejected for standing.
Sections from Table of Contents of the filing against Exxon, et al.
D. Civil Conspiracy Allegations............................................... 47
1. The Use of Front Groups. ....................................................... 47
2. ExxonMobil’s Leadership Role in the Conspiracy ................. 56
a. Exploiting Scientific Studies ................................................... 58
b. Denying the Consensus on Global Warming .......................... 58
c. Misleading Advertising ........................................................... 59
d. Funding Critics of Global Warming ....................................... 59
e. Denying the Effects of Global Warming on the Arctic ........... 60
D. Civil Conspiracy Allegations1. The Use of Front Groups
189. There has been a long campaign by power, coal, and oil companies to mislead the public about the science of global warming. Defendants ExxonMobil, AEP, BP America Inc., Chevron Corporation, ConocoPhillips Company, Duke Energy, Peabody, and Southern (“Conspiracy Defendants”) participated in this campaign. Initially, the campaign attempted to show that global warming was not occurring. Later, and continuing to the present , it attempts to demonstrate that global warming is good for the planet and its inhabitants or that even if there may be ill effects, there is not enough scientific certainty to warrant action. The purpose of this campaign has been to enable the electric power, coal, oil and other industries to continue their conduct contributing to the public nuisance of global warming by convincing the public at-large and the victims of global warming that the process is not man-made when in fact it is.
190. The campaign has been conducted directly by the Conspiracy Defendants, and through trade associations such as the Edison Electric Institute (“EEI”) (which represents the electric power industry), the National Mining Association (which represents the coal industry), and the Western Fuels Association (which represents coal-burning utilities that own Wyoming coal fields). The industries have also formed and used front groups, fake citizens organizations, and bogus scientific bodies, such as the Global Climate Coalition (“GCC”), the Greening Earth Society, the George C. Marshall Institute, and the Cooler Heads Coalition. The most active company in such efforts is and has been defendant ExxonMobil.
191. The tactics employed in this campaign include the funding and use of “global warming skeptics,” i.e. professional scientific “experts” (many of whom are not atmospheric scientists) who regularly publish their marginal views expressing doubts about numerous aspects of climate change science in places like the Wall Street Journal editorial page but rarely, if ever, in peer-reviewed scientific journals. The skeptics are frequently quoted in newspapers such as the Washington Times and are offered up to numerous mainstream unsuspecting, news outlets as scientific experts in order to sow doubt among the public about global warming.
192. One of the earliest and most prominent front groups has been The Advancement of Sound Science Coalition (“TASSC”). TASSC was originally formed in 1993 by a public relations company working for the tobacco company Philip Morris with the goal of discrediting the mainstream science establishing the health hazards of second-hand tobacco smoke. As part of this campaign for the tobacco industry, TASSC coined the terms “junk science” to refer to the mainstream, peer-reviewed science it sought to discredit and “sound science” to refer to industry-sponsored science suggesting the link between second-hand smoke and diseases such as cancer was inconclusive. TASSC has funded a web site, JunkScience.com, which was founded by a public relations consultant working at TASSC.
193. At some point in the 1990s, TASCC began using its public relations tactics of making scientific judgments seem uncertain on behalf of Defendant ExxonMobil and other members of the fossil fuel production and combustion industries. ExxonMobil has funded TASCC. The Orwellian use of the terms “junk science” and “sound science” were adopted by the power, coal and oil industries – including some of the Conspiracy Defendants – to subvert the global warming debate.
194. Another front-group formed by industry was called the "Information Council on the Environment" or ICE, which was formed by Defendant Southern Company along with EEI, the Western Fuels Association, and the National Coal Association. ICE undertook radio advertising blitzes and mass mailings that attacked the proponents of global warming and used unscientific tactics like calling attention to small geographic regions with temperature trends that ran against the overall warming as somehow disproving global warming. Internal documents from ICE revealed that the goal was to “reposition global warming as theory” not fact and was designed to target “older, less educated males from larger households who are not typically active information-seekers” and “younger, lower-income women.” It sought to attack messengers on global warming as a way to falsely discredit the science and enable Southern and the electric utility industry in general to continue to contribute to the public nuisance alleged herein. Its scientific claims were so specious that even notorious climate skeptics Patrick Michaels and Robert Balling requested their names be removed from ICE.
195. In 1997, EEI commissioned a study by a reputable consulting firm, ICF Kaiser, to assess the impact of limiting carbon dioxide emissions on the price of electricity. The results showed only a modest impact on price – an impact that would be made up by concomitant conservation savings. EEI buried the study “because it’s not damaging enough” according to an EEI source, and there were discussions at EEI about shredding all copies of the study.
196. The GCC was one of the most outspoken and confrontational industry groups in the United States battling reductions in greenhouse gas emissions. The GCC was founded in 1989 by 46 corporations and trade associations representing all of the major elements of U.S. industry. It allegedly has been inactive since 2002.
197. The GCC operated until 1997 out of the offices of the National Association of Manufacturers. It raised from its members tens of millions of dollars for the purpose of distorting the public debate so as to enable its members to continue to emit large quantities of greenhouse gases and take other actions that contribute to the public nuisance alleged herein. It spent $13 million on one ad campaign alone that was intended to subvert the debate on global warming. Meetings of the GCC took place in a variety of locations, including the offices of The Southern Company, and attendees often included representatives of Allegheny Power, AEP, Union Electric, Mobil, American Petroleum Institute (“API”), Exxon, Duke, Edison, Illinois Power, and the Western Fuels Association.
198. The Conspiracy Defendants were at relevant times members of the GCC.
199. According to the GCC’s Application for Recognition of Exemption to the IRS, initial GCC board members included American Electric Power Service Corp., API, the Edison Electric Institute (“EEI”), and The Southern Company.
200. The GCC board of directors included Thomas Chaney of Cincinnati Gas & Electric, now owned by Defendant Duke; Charles DiBona of API; Dale Heydlauff of American Electric Power Service Co.; Thomas Kuhn of EEI; and John Richardson of The Southern Company.
201. Later, when the GCC became controversial and changed its membership to trade associations only in order to distance the individuals companies from its work, the Conspiracy Defendants’ interests continued to be represented in the GCC by their trade associations, API, EEI and the National Mining Association.
202. Many of the same individuals were involved with the GCC and the trade association groups. For example, William O’Keefe, former president of the GCC, is also a former executive of API.
203. Central to the GCC communication strategy was the creation of a public perception of scientific uncertainty regarding the need to reduce greenhouse gas emissions.
204. GCC activities have included publication of glossy reports raising concern about unemployment that it claims would result from emissions regulations. It distributed a video to hundreds of journalists claiming that increased levels of carbon dioxide will increase crop production and help feed the hungry people of the world.
205. In December, 1995 the GCC, via its Science and Technology Advisory Committee (“GCC-STAC”), drafted a primer on the science of global warming for GCC members. The draft primer included a seven-page section that reviewed the “contrarian” arguments and theories and listed a “counter-argument” for every single one of them. The description of the counter-arguments demonstrate the GCC and its members were well aware that the contrarian theories, which they publicly touted as casting doubt on the science of global warming, were incorrect. In fact, the GCC-STAC science primer concludes that: The contrarian theories raise interesting questions about our total understanding of climate processes, but they do not offer convincing arguments against the conventional model of greenhouse gas emission-induced climate change. [Robert] Jastrow’s hypothesis about the role of solar variability and [Patrick] Michaels’ questions about the temperature record are not convincing arguments against any conclusion that we are currently experiencing warming as the result of greenhouse gas emissions.
206. At its next meeting, in January, 1996, the GCC-STAC decided simply to drop this seven-page section of the report, as reflected in the meeting minutes: “Most suggestions had been to drop the ‘contrarian part’ [i.e., the appendix]. This was accepted and that portion of the paper will be dropped.” But for years afterward, the GCC and its members nonetheless continued to tout the contrarian theories about global warming in order to ensure they could continue their unabated emissions of greenhouse gases and other conduct contributing to the nuisance alleged herein.
207. At a GCC meeting in February, 1996, EEI made a powerpoint presentation regarding the science of global warming. The presentation stated that a doubling of carbon dioxide levels over pre-industrial concentrations would occur by 2050 and cause “an average rate of warming [that] would probably be greater than any seen in the past 10,000 years.” It stated that global agricultural productivity could be maintained relative to current levels only up to the double the CO2 level. It reported that a U.S. government study had found that “the chance of changes since 1976 being purely natural is 1-20%.” The presentation stated that some of the impacts would be “potentially irreversible” and include “significant loss of life.”
208. At the same meeting there was discussion among the GCC membership of purposely not reporting into the new federal database of greenhouse gas emissions in order to “cast the [database] program in a poor light.”
209. By 1997, the growing scientific and public consensus regarding global warming forced a number of GCC supporters to reconsider the negative public relations implications of their involvement in a group that was increasingly recognized as a self-serving antienvironmental front group. BP/Amoco withdrew from GCC after BP’s chairman admitted that “the time to consider the policy dimensions of climate change is not when the link between greenhouse gases and climate change is conclusively proven, but when the possibility cannot be discounted and is taken seriously by the society of which we are part. We in BP have reached that point.” Other prominent companies that publicly abandoned the GCC include American Electric Power, Dow, DuPont, Royal Dutch Shell, Ford, Daimler Chrysler, Southern Company, Texaco and General Motors.
210. The GCC claimed that “a bedrock principle addressing global climate change issues is that science – not emotional or political reactions – must serve as the foundation for global climate policy decisions.” In direct contradiction to these lofty goals, the GCC and individual members have provided public platforms for the handful of scientists who are skeptical of the consensus that there is a human influence on Earth’s climate. These scientists generally do not participate in the accepted process of publishing research in peer-reviewed journals in order to test hypotheses and conclusions. Most of them also do not have expertise in atmospheric science.
211. Another organization used to launder information is the George C. Marshall Institute. During the 1990s, the Marshall Institute had been known primarily for its work advocating a “Star Wars” missile defense program. However, it soon became an important home for industry-financed “climate contrarians,” thanks in part to ExxonMobil’s financial backing. Since 1998, ExxonMobil has paid $630,000, primarily to underwrite the Marshall Institute’s climate change effort. William O’Keefe, CEO of the Marshall Institute, formerly worked as executive vice president and chief operating officer of the American Petroleum Institute, served on the board of directors of the Competitive Enterprise Institute, and is chairman emeritus of the Global Climate Coalition.
212. In April, 1995, the George C. Marshall Institute issued a press release touting a study that claimed “scientific facts refute global warming fears.” The study claimed that policy makers needed to know that the “growing body of scientific evidence shows global warming is not a serious threat.” The press release claimed the Institute was funded by private foundations and individual donors, thereby hiding its connection to ExxonMobil and other oil companies.
213. On April 10, 1996, the George C. Marshall Institute, as part of the Conspiracy Defendants’ disinformation campaign, issued a report falsely claiming that peer-reviewed studies indicated temperature increases were consistent with “natural climate change.”
214. Since ExxonMobil began to support its efforts, the Marshall Institute has served as a clearinghouse for global warming contrarians, conducting round-table events and producing frequent publications. The Marshall Institute has been touting its new book, Shattered Consensus: The True State of Global Warming, edited by long-time contrarian Patrick Michaels. Michaels has, over the past several years, been affiliated with at least ten organizations funded by ExxonMobil.
215. The GCC went even further than providing public relations services for these skeptics. The group also attacked credible and preeminent expert scientists. Perhaps the most disturbing example of this is what happened to Dr. Benjamin Santer of Lawrence Berkeley National Laboratory.
216. In June 1996, the American Petroleum Institute, the George C. Marshall Institute, and the GCC launched a vicious attack. Their target was Dr. Santer, the lead author of a crucial chapter of the 1995 Second Assessment Report of the Intergovernmental Panel on Climate Change (“IPCC”), the world’s leading scientific body studying climate change.
217. The strategy was to discredit Dr. Santer as the lead editor for the chapter that linked the threat of global climatic disruption to the burning of fossil fuels. By discrediting the author, these organizations could argue that global warming was “natural.”
218. The opening salvo came on June 19, 1996, in a Wall Street Journal op-ed piece. The author, Dr. Frederick Seitz, was not present at any of the meetings he referred to in his oped, but he stated that the Dr. Santer and his co-authors, “deliberately deceived policymakers and the public by deleting passages that expressed uncertainty about the human impact on climate change after reviewing scientists approved the text.”
219. Dr. Seitz’s assertion that “I have never witnessed a more disturbing corruption of the peer-review process than the events that led to this IPCC report” was then picked up as a news story (rather than opinion) in The New York Times. Dr. Seitz’s work has been funded by ExxonMobil and Shell.
220. The GCC publicly repeated this unwarranted attack. Dr. Santer maintains he was never even approached by either the GCC or Dr. Seitz for an explanation.
221. GCC’s attacks provoked strong statements from the normally reticent IPCC scientists. Forty of them signed a letter printed in the Wall Street Journal on June 25, 1996. IPCC Chairman Bert Bolin and Working Group One Co-Chairman Luiz Gylvan Meira-Filho and John Houghton also wrote a letter stating that they were “completely satisfied” with the changes made to the Working Group Report.
222. On September 9, 1997, the GCC launched a national television, print and radio advertising campaign falsely claiming that there was an issue as to whether man-made greenhouse gases caused global warming. Its sponsors included the API.
223. A task force was formed by industry in the1990s called the Global Climate Science Communications Team ("GCSCT"). GCSCT members included some of the Defendants, including ExxonMobil, Chevron Corporation, and The Southern Company, and trade associations including the American Petroleum Institute, which represents the interest of all of the U.S. oil company Defendants. A 1998 GCSCT task force memo outlined an explicit strategy to invest millions of dollars to manufacture uncertainty on the issue of global warming – a strategy that directly emulated Big Tobacco’s disinformation campaign. Despite mounting scientific evidence of the changing climate, the goal the team outlined was simple and familiar. As the memo put it, “Victory will be achieved when average citizens understand (recognize) uncertainties in climate science” and when public “recognition of uncertainty becomes part of the ‘conventional wisdom.’"
224. The API action plan indicated progress would be measured by the percentage of new articles that raise questions about climate change as well as the number of radio talk show appearances by scientists questioning the prevailing views.
225. The Greening Earth Society (“GES”) was founded on Earth Day in 1998 by the Western Fuels Association (“WFA”) to advocate that increasing levels of CO2 is in fact beneficial. Apparently, GES and the WFA are essentially the same organization.
226. The WFA74 is a cooperative of coal-dependent utilities that owns coal fields in the western states and that seeks to discredit global warming science.
227. The purpose and effect of these efforts was to create doubt in the minds of the public and therefore to mislead the victims of global warming regarding the cause of global warming.
228. The GES employed a multi-level strategy to attack the facts of global warming. It criticized legitimate science while promoting its own truths that climate change is not happening. At the same time, it attempted to show that coal and increased carbon dioxide will benefit the earth, and to promote a “green” image for its member companies.
229. The July 19, 1999 issue of World Climate Report, the Society’s newsletter, demonstrates most of these tactics. The article “Pew, this Stinks,” is an attack on the Pew Center on Global Climate change and scientist Tom Wigley; “Heat Waves Goodbye” claims that heat waves have decreased since 1950; “Old Kentucky Home” laments the economic ruin restrictions on coal-burning would bring to rural America; “Ask the Aspen” states a benefit to pest-ravaged trees from more carbon dioxide.
230. The vast majority of GES material is based on the work of a few scientists with marginal qualifications and/or fringe views. GES funds the Climate Data Task Force, headed by Robert Balling at Arizona State University, and provides support and board memberships for notorious climate skeptics Pat Michaels, Willie Soon and Sallie Baliunas. These scientists’ conclusions uniformly support the GES thesis that “our use of fossil fuels is helping give plants the extra carbon dioxide they need to grow more lush and green worldwide,” as stated on the GES homepage.
2. ExxonMobil’s Leadership Role in the Conspiracy
231. Relying on tactics developed by the tobacco industry to discredit health risks associated with tobacco use, ExxonMobil has channeled $16 million over the 1998 to 2005 period to 42 organizations that promote disinformation on global warming. At the same time it divested itself of nearly all of its alternative energy holdings. Globally, in 2006, ExxonMobil emitted 145.5 million metric tons of CO2e.
232. ExxonMobil is an influential stakeholder in the dialog about how the world will address global warming, and what the company says will have an impact on virtually everyone. ExxonMobil is the third largest corporation on earth; and its annual revenues exceed those of many of the world’s nations.
233. The Economist in 2001 described ExxonMobil’s importance on the issue: “ExxonMobil, the biggest [oil company], is also the world’s most powerful climate-change skeptic . . . If the world’s biggest purveyor of fossil fuels ever accepts openly that global warming is real, that may turn out to be more important to the planet than any Kyoto deal.”
234. Rather than meet its social and legal responsibilities, ExxonMobil engaged in a multi-faceted attack on global warming which included exploiting science, denying the consensus on global warming, fostering false science, running misleading advertising denying the existence of global warming or its causes, and funding organizations who attacked global warming on these bases and/or the factors causing global warming.
235. ExxonMobil has funded and continues to fund groups like the George Marshall Institute, the Frazier Institute, and Free Enterprise to prop up discredited studies and to disseminate misleading information to downplay the severity of global climate change.
a. Exploiting Scientific Studies
236. At a May, 2000 shareholder meeting, ExxonMobil Chairman Lee Raymond questioned whether global warming exists and whether fossil fuels play a role in the heating of the Earth. He based his argument on a chart showing a 3,000-year temperature record for the Sargasso Sea. Raymond stated, “If you look at that, that’s the earth’s temperature as best these scientists are able to estimate what it was for the past 3,000 years.” A few months earlier, the company had made a similar argument with the same chart in an advertisement in The New York Times.
237. However, in a letter dated December 11, 2000, the author of the Sargasso Sea study, Dr. Lloyd Keigwin, explained why ExxonMobil’s use of the data is misleading: I believe ExxonMobil has been misleading in its use of the Sargasso Sea data. There’s really no way those results bear on the question of human-induced climate heating, and we already knew that there were climate cycles during recent millennia . . .
b. Denying the Consensus on Global Warming
238. Also at the May, 2000 shareholder meeting, Chairman Raymond questioned whether there is consensus that human activity is heating the Earth. To make his case, Raymond pointed to a petition dismissing global warming. “So contrary to the assertion that has just been made that everybody agrees,” Raymond said, “it looks like at least 17,000 scientists don’t agree . . . What I am saying is that there is a substantial difference of view in the scientific community as to what exactly is going on.” But the petition Raymond relied on had long since been discredited in the general media:
• The co-publisher of the petition, the Oregon Institute of Science and Medicine, is a fringe group run out of a tin shed by one Arthur Robinson, who is not a climatologist and who has no significant climate credentials. He is a physical chemist.
• The New York Times reported on April 22, 1998, that the presentation of the petition when circulated, came under heavy fire because of an apparent attempt to mislead recipients into thinking it came from the National Academy of Sciences, the nation’s most respected scientific body. The petition was accompanied by a letter from Dr. Frederick Seitz, a past president of the Academy, and an article dismissing global warming that was formatted to look as though it came from the Academy’s peer-reviewed, scientific journal. The Times also reported that the Academy formally disassociated itself form the petition and accompanying statements.
• The petition was written by a Dr. Fred Seitz, chairman of the Science and Environmental Policy Project, which has been funded by ExxonMobil, Shell and other oil companies. Previously, Seitz was a consultant for R.J. Reynolds in which capacity he was “to refute the criticisms against cigarettes.”
• The Associated Press reported on May 2, 1998, that Robinson conceded “that he made little attempt to verify the credentials of those who responded to the petition.” Found among the signatures were the names of a member of the pop group the Spice Girls, singer James Brown and several of the characters from the television show M*A*S*H.
c. Misleading Advertising
239. The use of this misleading petition continues to this day. On February 7, 2008, the Heartland Institute ran an advertisement in the New York Times touting the petition entitled “Can 19,000 Scientists Be Wrong About Global Warming?” The ad states that “19,000 scientists have signed a petition saying global warming probably is natural and not a crisis.” The ad was sponsored by the Heartland Institute, which has been funded by ExxonMobil.
240. ExxonMobil has placed advertising questioning the science of global warming. In the spring of 2000, the company ran a four-part series in the New York Times that attempted to resurrect long-abandoned criticisms of climate science. One of the ads, entitled “Unsettled Science,” was particularly egregious. The centerpiece of the ad was the Sargasso Sea data. Campaign ExxonMobil, a watchdog group, found another ten statements in the ad that were false or misleading in one way or another.
d. Funding Critics of Global Warming
241. ExxonMobil funds other groups to voice skepticism regarding global warming in order to hide its own pervasive involvement and to give the false impression that numerous, independent voices are speaking out. For years, the company and other defendants supported organizations whose mission was to undermine confidence in the evidence of global warming and support for addressing it. ExxonMobil supported the GCC.80 Additional efforts by ExxonMobil have been documented in the news.
242. The New Jersey Star-Ledger observed on August 1, 1999, that “over the past decade, the Global Climate Coalition has spent millions of dollars to defuse the global warming issue, lobbying members of Congress to thwart any corrective action, conducting economic studies that conclude that any such measure would irreparably harm the economy, and sponsoring skeptics on speaking tours to question whether global warming is the crisis other scientists say it is.”
243. ExxonMobil is no longer a member of the GCC but not by choice: The GCC’s role caused it and other member companies so much embarrassment that a large scale defection occurred at the end of 1999 and the beginning of 2000, with Ford, General Motors, Texaco, The Southern Company and others suddenly departing. Despite the departure of other large companies, ExxonMobil refused to leave the GCC (Oil Daily, January 11, 2000). Shortly after the membership drain, the GCC ended its corporate membership program and announced that only trade associations would be eligible for membership (GCC press release at www.globalclimate.org/newsroom/nr-00-0314-restructure.htm).
244. ExxonMobil ran its global warming advertisements and Lee Raymond made his statements to shareholders after the exodus from the GCC, reflecting ExxonMobil’s apparent determination to maintain its position, no matter how untenable other companies have come to find it.
e. Denying the Effects of Global warming on the Arctic
245. Industry-sponsored front groups were also responsible for the attacks on the Arctic Climate Impact Assessment (“ACIA”), a study published in November 2004 that combined the work of some 300 scientists and was four years in the making. Commissioned The Plaintiffs’ entire village must be relocated because of the nuisance at a cost of millions of dollars.
251. Defendants’ greenhouse gas emissions are a direct and proximate contributing cause of global warming and of the injuries and threatened injuries Plaintiffs suffer.
252. Defendants know or should know that their emissions of greenhouse gases contribute to global warming, to the general public injuries such heating will cause, and to Plaintiffs’ special injuries. Intentionally or negligently, defendants have created, contributed to, and/or maintained the public nuisance.
253. Defendants, both individually and collectively, are substantial contributors to global warming and to the injuries and threatened injuries Plaintiffs suffer.
254. Carbon dioxide and other greenhouse gas emissions resulting in global warming are inherently interstate in nature. Emissions of carbon dioxide and other greenhouse gases from defendants’ operations, no matter where such operations are located, rapidly mix in the atmosphere and cause an increase in the atmospheric concentration of carbon dioxide and other greenhouse gases worldwide. The heating that results from the increased carbon dioxide and other greenhouse gas concentrations to which defendants contribute cause specific, identifiable impacts in Kivalina.
255. Defendants knew that their individual greenhouse gas emissions were, in combination with emissions and conduct of others, contributing to global warming and causing injuries to entities such as the Plaintiffs.
256. Plaintiffs’ injuries and threatened injuries from each defendant’s contributions to global warming are indivisible injuries.
257. Plaintiffs have been and will continue to be injured by global warming.
258. Plaintiffs do not have the economic ability to avoid or prevent the harm.
259. Plaintiffs, due in part to their way of life, contribute very little to global warming.
260. Defendants, individually and collectively, are substantial contributors to global warming and to the injuries and threatened injuries Kivalina claims in this action. The injuries have caused Kivalina to suffer millions of dollars in damages in lost property value and revenue, including millions of dollars of funds necessary to relocate the entire community due to the harms caused by global warming.
261. Defendants are jointly and severally liable to Kivalina under the federal common law of public nuisance.
SECOND CLAIM FOR RELIEF State Law: Private and Public Nuisance
262. Plaintiffs incorporate by reference the preceding paragraphs.
263. In the alternative to the First Claim For Relief, if federal common law were not to apply, defendants are liable to Plaintiffs under the applicable state statutory and/or common law of private and public nuisance.
264. Defendants’ emissions of carbon dioxide, by contributing to global warming, constitute a substantial and unreasonable interference with public rights, including, inter alia, the rights to use and enjoy public and private property in Kivalina. In the exercise of those rights, Plaintiffs suffer special injuries from defendants’ contributions to global warming, in that global warming will diminish or destroy Plaintiffs’ public and private real property (and the real property of their residents and Tribal members). The Plaintiffs’ entire village must be relocated because of the nuisance at a cost of millions of dollars.
265. Defendants have engaged and continue to engage in intentional or negligent acts or omissions that unreasonably interfere with the use and enjoyment of Plaintiffs’ properties, and/or work a substantial annoyance, inconvenience, or injury to the public, and are therefore liable under the applicable state statutory and/or common law of private and public nuisance.
266. Defendants, individually and collectively, are substantial contributors to global warming and to the injuries and threatened injuries suffered by Plaintiffs. The injuries have caused Kivalina to suffer millions of dollars in damages in lost property value and revenue, including millions of dollars of funds necessary to relocate the entire community due to the harms caused by global warming.
267. Defendants are jointly and severally liable to Plaintiffs under the applicable state statutory and/or common law of private and public nuisance.
THIRD CLAIM FOR RELIEF Civil Conspiracy
268. Plaintiffs incorporate by reference the preceding paragraphs.
269. Defendants ExxonMobil, AEP, BP America Inc., Chevron Corporation, ConocoPhillips Company, Duke Energy, Peabody, and Southern (“Conspiracy Defendants”) have engaged in agreements to participate in an unlawful act or a lawful act in an unlawful means. The Conspiracy Defendants have engaged in agreements to participate in the intentional creation, contribution to and/or maintenance of a public nuisance, global warming. The Conspiracy Defendants participated and/or continue to participate in an agreement with each other to mislead the public with respect to the science of global warming and to delay public awareness of the issue—so that they could continue contributing to, maintaining and/or creating the nuisance without demands from the public that they change their behavior as a condition of further buying their products. At all times the Conspiracy Defendants were concerned that the public would become concerned by global warming and that the growing concern would force a change in the Conspiracy Defendants’ behavior which would be costly. Delaying these costs was the major objective of the conspiracies described herein.
270. The Conspiracy Defendants have committed overt acts in furtherance of their agreements. The Conspiracy Defendants have participated in an agreement with each other to mislead the public with respect to the science of global warming, either individually or through their various industry fronts or trade associations, and have included overt acts that furthered their intentional creation, contribution to and/or maintenance of a public nuisance, global warming.
271. The Conspiracy Defendants intentionally created, contributed to and/or maintained a public nuisance, global warming, pursuant to their agreements.
272. The Conspiracy Defendants’ conspiracies had as their objective creating unwarranted doubts about the existence of global warming and/or its specific causes among the general public and was intended to and did further the Conspiracy Defendants’ interests in maintaining a public nuisance.
273. The Conspiracy Defendants’ overt acts contributed to and caused Plaintiffs’ injuries. The Conspiracy Defendants’ campaign to deceive the public about the science of global warming has caused Plaintiffs’ injuries and/or is a substantial contributing factor.
274. The Conspiracy Defendants’ overt acts were a direct and proximate cause of Plaintiffs’ injuries.
275. The Conspiracy Defendants understood the general objectives of the scheme, accepted them, and agreed, explicitly and/or implicitly, to do their part to further the objectives of the scheme.
276. The Conspiracy Defendants are jointly and severally liable under federal common law to Plaintiffs for their injuries caused by global warming.
277. In the alternative, if federal common law were not to apply, The Conspiracy Defendants are jointly and severally liable under the common law of conspiracy under applicable state law to Plaintiffs for their injuries caused by global warming.
FOURTH CLAIM FOR RELIEF Concert of Action
278. Plaintiffs incorporate by reference the preceding paragraphs.
279. Defendants have engaged in and/or are engaging in tortious acts in concert with each other or pursuant to a common design. Defendants have engaged in and/or are engaging in concert with each other over the creation, contribution to and/or maintenance of a public nuisance, global warming.
280. Defendants know that each other’s conduct constitutes a breach of duty and each defendant gives substantial assistance or encouragement to each other to so conduct itself. Defendants know that each other participated in the creation, contribution to and/or maintenance of a public nuisance, global warming.
281. Defendants give substantial assistance to each other in accomplishing a tortuious result and each defendant’s own conduct, separately considered, constitutes a breach of duty to Plaintiffs. Defendants give substantial assistance to each other’s participation in the creation, contribution to and/or maintenance of a public nuisance, global warming.
282. Defendants are jointly and severally liable under the applicable federal and/or state law to Plaintiffs for their injuries caused by global warming pursuant to a concert of action.
RELIEF REQUESTED Plaintiffs request that this Court:
1. Hold each defendant jointly and severally liable for creating, contributing to, and maintaining a public nuisance;
2. Hold the Conspiracy Defendants jointly and severally liable for civil conspiracy;
3. Hold each defendant jointly and severally liable for concert of action;
4. Award monetary damages on the basis of joint and several liability according to proof;
5. Enter a declaratory judgment for such future monetary expenses and damages as may be incurred by Plaintiffs in connection with the nuisance of global warming;
6. Award attorneys fees;
7. Award costs and expenses; and
8. Award such other relief as this Court deems just and proper.