Tuesday, September 25, 2012

Alaskan Village Denied Standing to Sue

The Alaskan village of Kivalina is a small town at the tip of a barrier reef about seventy miles north of the Arctic Circle. The Village is feeling the devastating effects of climate change which is shrinking the sea ice that once protected the Village against seasonal coastal storms. In recent years, waves that used to be blocked by the sea ice have caused devastating erosion and the land beneath the Village is literally disappearing. The Village, faced with imminent relocation or destruction sued several oil, coal, and power companies claiming that their greenhouse gas emissions at least in part led to the warming of the planet and thus their injury. The Village also used a federal public nuisance law to claim that the companies had together violated the law by “[C]ontributing to global warming and misleading the public about its consequences.” The Village sought damages to assist in their relocation efforts which are estimated to cost $400,000,000. U.S. District Judge Saundra Armstrong dismissed the case ruling that the Village did not have standing. Generally, standing is a legal concept in which a party must demonstrate to the court that it has suffered an injury from the other party and a favorable court decision will redress that injury. Armstrong’s ruling meant that the Village did not adequately demonstrate that their injury was a direct result of the energy companies’ emission of greenhouse gases. Since greenhouse gases are released by a variety of companies and individuals, the Village could not hold these particular parties accountable. The Village appealed and on September 21, 2012 the federal Ninth Circuit Court of Appeals unanimously affirmed the ruling, stating that the Village did not have standing to sue the companies. In addition, Judge Sidney Thomas stated that a fairly recent Supreme Court decision holding that “[F]ederal common law addressing domestic greenhouse gas emissions has been displaced by Congressional action” defeated the Village’s federal public nuisance claim. Judge Thomas remarked that "Our conclusion obviously does not aid Kivalina, which itself is being displaced by the rising sea . . . . But the solution to Kivalina's dire circumstance must rest in the hands of the legislative and executive branches of our government, not the federal common law." -Corey Mishler, Legal Intern

Monday, September 17, 2012

New Zealand Grants Personhood to a River

With corporations having been granted legal personhood in the United States a few years ago, you may be asking yourself whether or not non-human animals or parts of the environment could be granted such a vast array of rights and protection. Although not in the United States, a designation of a river as a legal person was recently requested and granted in New Zealand. The Whanganui River is the third largest river in the nation of New Zealand. The River is of mass significance to the local iwi, indigenousness people, who have not only relied on the River as a resource for generations but have also enjoyed the River’s natural beauty and use for recreation. The iwi have been fighting to have the River protected by the government from relentless pollution and unauthorized exploitation since 1837. Recently, New Zealand’s longest-running legal case celebrated a huge victory. In late August the iwi and New Zealand’s Parliament reached a preliminary settlement agreement which recognized the River as a legal entity enabling it to have legal standing and its own independent voice. The River will be recognized as “Te Awa Tupua,” the name given to it by the iwi and will be recognized in the same way a company is, which will give it protectable rights. The agreement also appointed two guardians – one from Parliament and one from the iwi – to represent the interests of the River. The New Zealand Minister of Treaty for Waitangi Negotiations, Christopher Finlayson, said the agreement recognizes the “inextricable relationship of iwi with the River.” He notes that the “iwi have not sought to have their relationship with the river defined in these settlement negotiations in terms of ownership of the riverbed or water, but have focused on recognizing the mana of the River from which the iwi’s mana flows, and on its future health and wellbeing.” This appears to be the first time in history a single river has ever been granted legal personhood anywhere in the world.