Amicus Curiae Brief — Massachusetts v. EPA

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No. 05-1120 ILED |

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rT OFFICE OF THE OLEFI

jn Che SUPREME Cours

Supreme Court of the United States

COMMONWEALTH OF MASSACHUSETTS,

Petitioners,

Vv.

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

AMICUS BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

Frances M. Raskin

‘TRUSTEES FOR ALASKA

1026 W. 4th Avenue

Anchorage, Alaska 99501

(907) 276-4244

Counsel for Amici

et al.,

THE LEX GROUP®© ¢ 1750 K Street N.W. @ Suite 475 ¢ Washington, DC 20006

(202) 955-0001 @ (800) 815-3791 @ Fax: (202) 955-0022 ¢www.thelexgroupdce.com

Interests of Amici Curiae

The Alaska Inter-Tribal Council (AITC) is a statewide,

tribally governed, non-profit organization that advocates on

behalf of tribal governments throughout the state.

The Council of Athabascan Tribal Governments (CATG)

is a consortium of the ten Tribes in the Yukon Flats region of

Alaska, nine of which are federally recognized Tribes.

CATG is comprised of nine Gwich'in Tribes and one

Koyukon Athabascan Tribe that occupy lands in the Yukon

Flats region in the northeastern interior of Alaska.

Resisting Environmental Destruction on Indigenous

Lands (REDOIL), a project of the Indigenous Environmental

Network, consists of Alaska Natives of the Inupiat, Yupik,

Aleut, Tlingit, Gwich’in, Eyak and Denaiana Athabascan

Tribes

AITC, CATG and REDOIL are greatly concerned about

the impacts of global warming on their members. Living in

the Arctic and sub-Arctic regions of Alaska, their members

experience daily the effects of global warming, including

thinning sea ice, increased coastal erosion, melting

permafrost, and changes in plant and animal distributions.

Global warming is depleting the subsistence resources of

the members of AITC, CATG and REDOIL and threatening

their health and safety. As a result, the members of AITC,

CATG and REDOIL have an interest in ensuring that the

Federal Government has the authority under the Clean Air

Act to regulate greenhouse gas emissions.

Authority for Filing Amicus Brief

Authority to file this brief is by consent under Supreme

Court Rule 37. All parties to this case have consented to the

filing of this brief.

Corporate Disclosure Statement

The amici, AITC, CATG and REDOIL, are all nonprofit

corporations or organizations. None of them has a parent

corporation, and no publicly held company has a 10 percent

or greater ownership interest in any of these entities.

Table of Contents

Page

I sie aseiiaandeniiniiinsionsanensiel i

Authority for Filing Amicus Brief.................:ccsceseeseeeeeneeees ii

Corporate Disclosure Statement ...............:ccccsceseeeesesseseeeeeees il

PI si a isarateniinaientomemuninniniaannenioeitbiin ill

SEE ee TE NCD re NECTED AR Vv

Ie I aseicitisctericicepivesesevinisecnininenecntunsaivccenigen l

1. SIIIITIID «ss ciininpiinadieestinpiiteniinidiealsiimabenigieabencinaieesneibiie ]

II. Global Warming Threatens the Physical and

Cultural Survival of Alaska Natives...............::cc0008 7

A. Global Warming Threatens Alaska

ST Se ccusiktistuncencniandpinieeienmnees 10

l. Thinning and Receding Sea Ice

Reduces Subsistence

Resources on Arctic Coasts............. 10

2. Melting _ Permafrost

Diminishes Subsistence

Pe iaidsikiiniiidasiemniistaciiaiineiidiinsiits 14

3. Warming Threatens Caribou, a

BE IEE III senictscccatisceiionsntinigtens 16

II].

B. Global Warming Is Endangering the

Health and Safety of Alaska Natives...........

Conclusion

CEE EEE ee

Table of Authorities

Cases

Native Village of Quinhagak v. Lujan,

35 F.3d 388 (9th Cir. 1994) 0... ccccceeeeeenees

Statutes, Regulations & Court Rules

Alaska National Interest Lands Conservation Act

IE I vrncscsnainicinecesnoemennncencsensmennesee

Clean Air Act

§ 202(a)(1), 42 U.S.C. § 4521 (a)(1) oocccccceeseeeeeeee

§ 302(g), 42 U.S.C. § 7602(g) ..eccecesecececsssseeeeeeeeen

§ 302(h), 42 U.S.C. § 7602(N) .......ececseeeeeseeneees nee

Endangered Species Act

The Federally Recognized Indian [ribe List Act

Pub L. No. 103-454, 108 Stat. 4791 (1994),

70 Fed. Reg. 71194-01 (Nov. 25, 2005)

Ie, I I cic eecscacesncncecesesensonnqeese

Marine Mammal Protection Act.

| "ee

Migratory Bird Treaty Act

Page(s)

Exec. Order No. 13175 §3(a), 65 Fed. Reg. 67249

(Nov. 9, 2000) Executive Mem. on Government-to-

~ Government Relations with Native American Tribal

Governments § 9 (April 29, 2004) .........::ccssccseesreeeeeeeeeenees

Other Authorities

Alaska Native Heritage Center website at

http://www.alaskanative. net/2.aSp ...........0sceceeseeeeseeseeeeeees

Bauman, Margaret, Conference Attendees Receive

an Account of Arctic Warming, Peninsula Clarion

a a a

Chance, Norman A., The /nupiat and Arctic Alaska: An

Ethnography of Development, Harcourt (1990). ...........-.++.

Egan, Timothy, Alaska, No Longer So Frigid, Starts

to Crack, Burn and Sag, The New York Times, §1

G8 0 Chemme 16, BBG) nnccccccccsccccccsscssssccsccessvscosssesssesscsssscsssssees

Finney, Bruce P., et al., Impacts of Climatic

Change and Fishing on Pacific Salmon Abundance

Over the Past 300 Years, 290 Science (2000). ...............0:

Gibson, Margie Ann & Schullinger, Sallie B.,

Answers from the Ice Edge: The Consequences of

Climate Change on Life in the Bering and Chukchi Seas

(Greenpeace U.S.A. 1998)......2...ccccccsseeesesensnseneneesenennsees

Gregory, Jonathan M.., ef al., Threatened Loss of

the Greenland Ice Sheet, 428 Nature 616 (2004). ..............

Hansen, James, et al., Global Temperature Trends:

2005 Summation, National Aeronautics and Space

Agency (2005), available at http://data.giss.nasa.gov/

Bistermp/2005/ ...........0.0.Tessseressseseessenceesesensnesesenensnensnesnesenens

Hassol, Susan Joy, Arctic Council, /mpacts of a

Warming Arctic: Arctic Climate Impact Assessment .

SO eccececcsenssnnsscscnsasesstnenstteninnennnnensinamemnenmamnaninn passim

Hinzman, Larry D. et al., Evidence and Implications

of Recent Climate Change in Northern Alaska and

Other Arctic Regions,

72 Climatic Chhamas 252 (2005). ......ccccccrcssesssssseersccsoncseeees 5,8

Intergovernmental Panel on Climate Change,

Third Assessment Report (2001), Contribution of

Working Group 1, Summary for Policymakers, at 2,

Houghton, J.T., et al., eds., Cambridge University

I I ceetetnctenteiencantbintintiimanibaieiitagitimtiibinens 5, 6, 11

Karl, Thomas R. & Trenberth, Kevin E., Modern

Global Climate Change, 302 Science 1721 (2003).............. 4

Lawrence, David M. and Slater, Andrew G., A

projection of severe near-surface permafrost

degradation during the 21" Century, 32 Geophysical

Research Letters L24401 (Dec. 17, 2005). ......c..ccccsceeeeeeees 15

Maynard, Nancy G., Final Report: Native

Peoples-Native Homelands Climate Change

Ge Cae en crenenccasnstasnsnentnsinenncinnmnntemmantinasenemmseni 14

Memorandum of William Ruckelshaus, EPA

Administrator, EPA Policy for the Administration

of Environmental Programs on Indian Reservations,

Nov. 8, 1984. .............. TD chaicabseinshbapleleieelitibiiiiblitahilialansscpites 3

Motavalli, Jim, Feeling the Heat: Dispatches from the

Frontlines of Climate Change 108, Routledge (2004)........ 13

Vii

National Assessment Synthesis Team, U.S.

Global Change Res. Program, Climate Change

Impacts on the United States: The Potential

Consequences of Climate Variability and

Fa ee eiraiinrnnisinntaiinsiateanictenretatremninneniiaimu 13

National Research Council, National Academy

of Sciences, Cumulative Environmental Effects

of Oil & Gas Activities on Alaska’s North Slope,

at 92 (National Academies Press 2003). ............ccccsseeseeeeees 12

O’ Hara, Doug, Permafrost is Warming, Anchorage

Daily News, at Al (Aug. 14, 2005). ..........cccececceeeeeeeeees 15, 16

Overpeck, J.T. et al., Arctic System on Trajectory

to New, Seasonally Ice-Free State,

ED sicictinnecsiesiictileinininesichennstntcnienciinntnaiapnnnaiaiil 1]

Peter, Evon The People and the Caribou Are One,

Voices from the Earth (Spring 2005), available at

http://www.sric.org/voices/2005/v6n1/caribou.htnil........... 10

Roosevelt, Margot, Vanishing Alaska: Global

Warming is Flooding Villages Aiong the Coast.

Should They Surrender and Move? Time

Magazine (Sept. 27, 2004). ..........cccccccessereeneeneees 9, 18, 19, 20

Rosen, Yereth, Warming Climate Disrupts Alaska

Natives’ Lives, Reuters (April 16, 2004). .............::c:ceceeees 10

Smith, Orson P., & Levasseur, George, /mpacts

of Climate Change on Transportation Infrastructure

in Alaska, The Potential Impacts of Climate

Change on Transportation, Part II, Regional

Case Studies 6

(U.S. Dep’t of Transportation, 2001).............-..ccseeceeneeenees 18

Vill

Sturm, Matthew, et al., Meltdown in the North,

Scientific American 62 (Oct. 2003) ......ccccccesseesceersesseeeeenrees 7

U.S. Arctic Research Commission, Climate

Change, Permafrost, and Impacts on Civil

Infrastructure, 3 (2003), available at

http://www.arctic.gov/publications. htm .............:.:00+ 14, 15

U.S. Arctic Research Commission, The Arctic

Ocean and Climate Change: A Scenario For

The U.S. Navy, 10 (2002) available at

http://www.arctic.gov/publications. htm ...........:sceceeeeeees 14

U.S. Department of Interior, Outer Continental

Shelf Oil & Gas Leasing Program: 2002-2007

Final Environmental Impact Statement, at 4-7

SE I crccinenstntnspanirmnterpmremmmicnnnneneniscamaniaistarenmctian 12

U.S. General Accounting Office, Alaska Native

Villages: Most Are Affected by Flooding and

Erosion, But Few Qualify for Federal Assistance,

ee Se ctiteitiesicnicintecinnneiitinneseipitiinnimmevesiiaia 19, 20

U.S. Geological Service, Sea Level and Climate,

available at http://pubs.usgs.gov/fs/fS82-00/ ............0ccecceceeee 12

U.S. Geological Service, Status and Trends of the

Nation's Biological Resources, Part 2 (Alaska),

available at http://biology.usgs.gov/s+USNT/

I a Oe crseseestitiiactntneieceiscamitniencscsemtanizanaisitinnni 16

Verrengia, Joseph B., /n Alaska, an Ancestral Island

Home Falls Victim to Global Warming, Associated

RGN Gk, III crc sirereeenesccnnnsngnsentonnendintoresnniinn 18, 19

Watt-Cloutier, Sheila, et al., Responding to Global

Climate Change: The Perspective of the Inuit

Circumpolar Conference on the Arctic Climate

Impact Assessment, 2° Is Too Much! Evidence and

Implications of Dangerous Climate Change in the

Arctic, World Wildlife Fund (2005). ...........::ccccceceeeseeeeeees 4,8

Watt-Cloutier, Sheila, Threat to North's Cultural

Survival, 109 ECO at 1 (Dec. 11, 2003). 0... eee eeeeees 7

Weller, Don, Effects of Climate Change on

Subsistence Communities in Alaska, Assessing _

the Consequences of Climate Change for Alaska

and the Bering Sea Region: I roceedings of a

Workshop at the University of Alaska Fairbanks 66

RR, Ci th crcecrsenenintncisenisenisnssnanivimesanictnenininnmmmaiatniin 12

Summary of Argument

By failing to heed the scientific consensus that global

warming is occurring at an unprecedented rate, the

Environmental Protection Agency (EPA) has ignored its

mission to protect human health from environmental

pollutants. No one feels the impacts of the Federal

Government’s inaction more than Alaska Natives, whose

lives, traditions and cultures are in jeopardy.

Nowhere are the effects of greenhouse gas emissions

more severe than in the Arctic, where the rate of warming is

twice that of the rest of the world. Alaska is on the front

lines of global warming: polar sea ice is disappearing,

glaciers are receding, permafrost is melting, wildlife

populations are declining, and coasts eroding. At stake is the

physical and cultural survival of Alaska’s oldest inhabitants.

The Environmental Protection Agency has clearly

established authority to regulate greenhouse gases. Despite

EPA’s claim to the contrary, the plain meaning of the Clean

Air Act, as well as its legislative history, mandate that the

agency regulate air pollutants that may reasonably be

anticipated to endanger public health or welfare. While

regulating greenhouse gas emissions from automobiles

would be only the first step toward addressing potentially

catastrophic climate change, it is necessary if the unique

traditions and communities of Alaska’s Native peoples are to

survive this century.

I. Introduction

“We are experiencing things in one lifetime that should

take five or six generations. .. . We are making do with

less [subsistence food] and trying to make the most of

it.” — Ronald Brower Sr., speaking on behalf of the

Inuit Circumpolar Conference (ICC).

' Margaret Bauman, Conference Attendees Receive an Account of Arctic

Warming, Peninsula Clarion, at A2 (Nov. 30, 2005). The ICC is an

international organization representing about 145,000 Inuit living in

Arctic regions of Alaska, Canada, Greenland and Chukotka, Russia. /d.

Alaska Natives comprise eleven distinct cultures. These

cultures are generally organized into five groupings that

draw upon cultural similarities or geographic proximity: the

Athabascan of the Interior and eastern Alaska, the Yup’ik

and Cup’ik of western Alaska, the Inupiag and St. Lawrence

Island Yupik of the northern and northwestern Arctic, the

Aleut and Alutiiq of Southcentral Alaska and Aleutian

Islands, and the Eyak, Tlingit, Haida, and Tsimshian of the

southeastern archipelago.”

Alaska Natives are politically organized into 228

federally recognized tribes. The Federal Government has a

“unique legal relationship” with tribal governments that

includes recognizing Tribes as sovereign governments."

EPA and other federal agencies must “ensure meaningful

and timely input by tribal officials in the development of

regulatory policies that have tribal implications.”” EPA must

give special consideration to Tribal interests in making

Agency policy and insure the close involvement of Tribal

Governments in making decisions and managing

. See Alaska Native Heritage Center website at

http://www.alaskanative.net/2.asp (last visited April 6, 2006).

> 70 Fed. Reg. 71194-01 (Nov. 25, 2005). The Federally Recognized

Indian Tribe List Act, Pub. L. No. 103-454, 108 Stat. 4791 (1994),

requires the Secretary of the Interior to keep a list of federally recognized

tribes. 25 U.S.C. § 479a-1(a).

* See, e.g., Exec. Order No. 13175 §3(a), 65 Fed. Reg. 67249 (Nov. 6,

2000) (“Agencies shall respect Indian tribal self-government and

sovereignty, honor tribal treaty and other rights, and strive to meet the

responsibilities that arise from the unique legal relationship between the

Federal Government and Indian tribal governments.”); Executive Mem.

on Government-to-Government Relations with Native American Tribal

Governments § 9 (April 29, 2004) (directing Federa] agencies to operate

“within a government-to-government relationship with federally

recognized Native American tribes”).

* Id. at § 5(a).

environmental programs affecting Tribal lands.°

The plain language of the Clean Air Act gives EPA

authority to regulate greenhouse gas emissions from

automobiles. Section 202(a)(1) and other provisions in the

Clean Air Act require EPA to regulate air pollutants that

endanger public health or welfare. 42 U.S.C. § 4521(a)(1)

(EPA shall regulate air pollutants from motor vehicles that

“cause, or contribute to, air pollution which may reasonably

be anticipated to endanger public health or welfare’’). The air

pollutants subject to regulation under section 202 are defined

as “any air pollution agent or combination of such agents,

including any physical, chemical, biological, radioactive .. .

substance or matter which is emitted into or otherwise enters

the ambient air. . . .” Clean Air Act § 302(g), 42 U.S.C. §

7602(g).

“Welfare includes, but is not limited to, effects on soils,

water, crops, vegetation, manmade materials, animals,

wildlife, weather, visibility, and climate, damage to and

deterioration of property, and hazards to transportation, as

well as effects on economic values and on personal comfort

and well-being, whether caused by _ transformation,

conversion, or combination with other air pollutants.” Clean

Air Act § 302(h), 42 U.S.C. § 7602(h) (emphasis added).

Thus, a substance emitted into the air that endangers climate

is subject to regulation under section 202.

In 2004, the Arctic Council commissioned a report that

consolidated the scientific research on global warming

trends, causes, and effects.’ Nearly 300 scientists

° Mem. of William Ruckelshaus, EPA Administrator, EPA Policy for the

Administration of Environmental Programs on Indian Reservations, Nov.

8, 1984.

” The Council is a high-level intergovernmental forum that addresses the

common concerns and challenges faced by the people and governments

of the eight Arctic nations: Canada, Denmark/Greenland/Faroe Islands,

Finland, Iceland, Norway, Russia, Sweden, and the United States; six

Indigenous Peoples’ organizations - Aleut International Association,

Arctic Athabaskan Council, Gwich'in Council International, Inuit

collaborated on the report, the Arctic Climate Impact

Assessment, which also included traditional knowledge from

Arctic indigenous communities. Among its key findings

were that global temperature is rising at an unprecedented

rate and the worst is still to come. There is a 90 percent

probability that by 2100, the Earth will warm between 1.7

degrees and 4.9 degrees Celsius, resulting in more frequent

heat waves, droughts, and extreme precipitation events.”

The annual average temperature in the Arctic has

increased at almost twice the rate as that in the rest of the

world over the past few decades.'® Increasing global

concentrations of carbon dioxide (CO2) and other greenhouse

gases are projected to contribute to additional Arctic

warming of about 4 degrees to 7 degrees Celsius over the

next 100 years.'' Scientists predict the Arctic will enter a

Circumpolar Conference, Russian Association of Indigenous Peoples of

the North, and Saami Council; and scientific observers.

* Hassol, Susan Joy, Arctic Council, /mpacts of a Warming Arctic: Arctic

Climate Impact Assessment 5 (2004) (hereinafter “ACIA report”). The

six Arctic Indigenous Peoples’ organizations submitted a statement to be

included in the report. It was rejected as too political. The statement

said, in part:

To Arctic Indigenous Peoples climate change is a cultural

issue. We have survived in a harsh environment and if, as a

result of global climate change, the species of animals upon

which we depend are greatly reduced in number or location or

even disappear, we as peoples would also disappear.

Sheila Watt-Cloutier e al., Responding to Global Climate Change: The

Perspective of the Inuit Circumpolar Conference on the Arctic Climate

Impact Assessment, 2° Is Too Much! Evidence and Implications of

Dangerous Climate Change in the Arctic 59 World Wildlife Fund

(2005).

> Thomas R. Karl & Kevin E. Trenberth, Modern Global Climate

Change, 302 Science 1721 (2003).

'? ACIA report, supra note 8, at 10.

'" Id.

warming period not seen in recent history. '”

In 2001, the Intergovernmental Panel on Climate Change

(IPCC) released a definitive report on global warming. The

Third Assessment Report, which incorporated the findings of

hundreds of scientists from around the world, was reviewed

and approved by more than 100 governments.'? The report

concluded that the increase in temperature in the 20th

century was likely the largest of any century in the past

1,000 years.'* Last year, 2005, was the warmest year in the

last century.'°

Moreover, the likely rate of future warming is much

larger than the observed changes in the 20" century and is

very likely to be without precedent during at least the last

100,000 years.'° In part, this is because much of the

anthropogenic carbon emissions is dissolved into the

oceans.!’ Currently, the ocean and the land together are

'? Larry D. Hinzman et al., Evidence and Implications of Recent Climate

Change in Northern Alaska and Other Arctic Regions, 72 Climatic

Change 252 (2005).

' IPCC, Third Assessment Report: The Scientific Basis, Contribution of

Working Group I, Summary for Policymakers, at 2, J.T. Houghton, et a/.,

eds., Cambridge Univ. Press (2001). This IPCC report contains (i) up-to-

date descriptions of the climate system and related factors, (ii) based on

the knowledge of the international expert communities, (iii) produced by

an open and peer-reviewed professional process, and (iv) based upon

scientific publications whose findings are summarized in terms usefu! to

decision makers. /d., Technical Summary, at 2.

'* IPCC, Third Assessment Report: The Scientific Basis, Contribution of

Working Group I, supra note 13, Summary for Policymakers, at 2.

'S James Hansen, et al., Global Temperature Trends: 2005 Summation,

National -Aeronautics and Space Agency (2005), available at

http://data.giss.nasa.gov/gistemp/2005/.

ad PCC, Third Assessment Report: The Scientific Basis, Contribution of

Working Group I, supra note 13, Summary for Policymakers, at 13.

'7 IPCC, Third Assessment Report: The Scientific Basis, Contribution of

Working Group 1, supra note 13, at 197.

absorbing about half of the anthropogenic CO, emissions.'®

The total amount of carbon in the oceans is about 50 times

greater than in the atmosphere."

However, the capacity of the oceans to absorb

anthropogenic CQ, is decreasing as CQ, levels increase.”’

The net effect will be more CO in the atmosphere and an

enhanced warming.”' As a result, global mean temperature

will increase for hundreds of years, even after CO,

concentrations have been stabilized.’ Further, many

greenhouse gases reside in the atmosphere for centuries after

being emitted, thereby causing a long-term warming effect.”

The IPCC report predicted a grim future for the Arctic:

The Arctic is extremely vulnerable to climate change,

and major physical, ecological, and economic impacts

are expected to appear rapidly. A variety of feedback

mechanisms will cause an amplified response, with

consequent impacts on other systems and people. There

will be different species compositions on land and sea,

poleward shifts in species assemblages, and -severe

disruptions for communities of people who lead

traditional lifestyles. In developed areas of the Arctic

and where the permafrost is ice rich, special attention

will be required to mitigate the detrimental impacts of

thawing, such as severe damage to buildings and

transport infrastructure.”

'§ IPCC, Third Assessment Report: The Scientific Basis, Contribution of

Working Group I, supra note 13, Summary for Policymakers, at 7.

'° Id. at 197.

2° IPCC, Third Assessment Report: The Scientific Basis, Contribution of

Working Group I, supra note 13, at 199.

*" See i . at 224.

22 IPCC, Third Assessment Report: The Scientific Basis, Contribution of

Working Group I, supra note 13, Technical Summary, at 76.

* Id. at 24.

*4 Id. at 60 (emphasis added). A process is called a feedback when the

result of the process affects its origin thereby intensifying (positive

feedback) or reducing (negative feedback) the original effect. /d. at 91.

International scientific consensus indicates that most of

the atmospheric warming over the past 50 years is

attributable to human activities, primarily the burning of

fossil fuels.2* Emissions from these activities increase

concentrations of CO, methane, and other heat-trapping

gases in the atmosphere.” Since the start of the industrial

revolution, the atmospheric CO? concentration has increased

by about 35 percent.’

As discussed below, the unchecked consumption of fossil

fuels impairs the ability of Alaska’s Native peoples to

continue their way of life, which necessarily entails a close

reliance on a stable Arctic environment.

II. Global Warming Threatens the Physical and Cultural

Survival of Alaska Natives.

“Time is running out for the Arctic. We need far-

reaching, long-term global commitments to reduce

emissions of greenhouse gases if the Arctic is to be

protected and if our human rights, particularly our

human rights to subsistence, are to be respected.”

—- Sheila Watt-Cloutier, ICC Chair”

Alaska Natives have occupied Alaska for thousands of

years.”” They rely upon and have a sophisticated knowledge

of their natural environment. This physical and spiritual

relationship is sometimes encapsulated in the term

“subsistence.”

Congress defined subsistence as “the customary and

traditional uses . . . of wild, renewable resources” for food,

clothing, sharing, or other customary uses.’ It also

ACIA report, supra note 8, at 2.

27 14

*8 Threat to North's Cultural Survival, 109 ECO at | (Dec. 11, 2003).

*? Norman A. Chance, The Inupiat and Arctic Alaska: An Ethnography

of Development, 17-18, Harcourt (1990).

U.S.C. § 3113.

recognized the importance of Alaska Native subsistence by

giving subsistence activities expanded protections under

federal environmental and public land statutes.’

Alaska Natives, relying on their traditional knowledge of

the sea, ice, land, and animals, thrive in an extreme

environment.” These resources not only sustain the

economic and nutritional viability of Alaska Native

communities, they also provide a basis for social identity,

spiritual life, and cultural survival.”?

Global warming threatens drastic changes to the very

existence of Alaska Native communities.** The sea ice is

less stable, weather patterns are unusual, vegetation cover is

changing, and key subsistence species are no longer found in

traditional hunting areas during the expected seasons.*°

Since the 1970s, Alaska Natives have _ reported

environmental changes outside the bounds of “normal”

variability.*° They have reported sightings of American

robins and salmon, whose normal range does not include the

Arctic.?’ Several communities have observed changes in the

health and behavior of caribou, a key subsistence species.*®

>! See, e.g., Endangered Species Act, 16 U.S.C. §1539(e) (exempting

Alaska Natives from take provisions “if such taking is primarily for

subsistence purposes”); Marine Mammal Protection Act, 16 U.S.C. §

1371(b) (exempting Alaska Natives from Act’s take provisions if take “is

for subsistence purposes”); Migratory Bird Treaty Act, 16 U.S.C. §

712(1) (enabling Secretary of Interior to permit Alaska Natives to take

migratory birds and collect their eggs for seasonal subsistence use);

ANILCA, 16 U.S.C. § 3114 (establishing subsistence preference for fish

and wildlife uses on public lands).

2 See, e.g., ACIA report, supra note 8, at 94.

> Id. at 94.

8 Id. at 94.

35 Id.

yn note 8 at 59 (World Wildlife Fund 2005).

” Hinzman et al., supra note 12, at 286.

** Id.

In the Pribilof Islands, villagers blame global warming and

industrial contaminants for the decline of 20 species, ranging

from kelp to sea lions.”

Climate change may be reducing salmon populations in

Alaska.*” Salmon and other fish make up 60 percent of

Alaska Natives’ subsistence resources. *’ Recent declines in

fish populations directly affect the dietary and economic

well-being of these people. In short, global warming is

rearranging the environment upon which Alaska Natives

depend to survive:

The weather seems less stable and predictable. From

sources of indigenous knowledge across the Arctic come

reports that the weather seems more variable, unfamiliar,

and is behaving unexpectedly and outside the norm.

Experienced hunters and elders who could predict the

weather using traditional techniques are now frequently

unable to do so. Storms often occur without warning.

Wind direction changes suddenly. In many places it is

increasingly cloudy. Storms bringing high winds and

lightning occur with increasing frequency in some

locations. As noted by several elders, “the weather is

harder to know.” This presents problems for many

activities, from hunting to drying fish, on which

Indigenous Peoples depend.”

A. Global Warming Threatens Alaska Natives’

Existence.

“The practice of coming out here and being on the land

and hunting caribou is not only about feeding our

families, because it is all we have to survive from. We

don't have Safeways and Wal-Marts and stuff like that in

*® Margot Roosevelt, Vanishing Alaska, Time, Sept. 27, 2004, 68-70.

“ Bruce P. Finney, et al., impacts of Climatic Change and Fishing on

Pacific Salmon Abundance Over the Past 300 Years, 290 Science 795,

797 (2000).

*' ACIA report, supra note 8, at 119.

* ACIA report, supra note 8, at 96.”

\ i)

our tribes. But it's also about maintaining our culture

and our spiritual relationship with these animals that

we've had for time immemorial.” — Evon Peter, Arctic

Village, Alaska’

The continuation of the opportunity for rural residents in

Alaska to engage in subsistence activities is essential to

Native physical, economic, traditional and _ cultural

existence.“* The situation in Alaska is unique because, in

most cases, no practical alternative means exists to replace

food supplies and other items gathered from the fish and

wildlife that supply rural residents dependent on subsistence

activities.*°

“[Fifty] percent of the food for three-quarters of the

Native families in Alaska's small and medium villages is

acquired through subsistence uses, and 40 percent of such

families spend an average of six to seven months of the year

in subsistence activities.”*°

1. Thinning and Receding Sea Ice Reduces

Subsistence Resources on Arctic Coasts

“It looks like winter out there, but if you've really been

around a long time like me, it's not winter. . . . If you

travel that ice, it's not the ice that we traveled 40 years

ago.” — Orville Huntington, Alaska Native Science

Commission.*’

Earth (Spring 2005), available at

http://www.sric.org/voices/2005/v6n | /caribou.html.

“ ANILCA § 801(1), 16 U.S.C. § 3111.

** ANILCA § 801(2), 16 U.S.C. § 3111.

1994) (citing H.R. Rep. No. 1045, 95th Cong., 2d Sess., at 181 (1978)).

” Yereth Rosen, Warming Climate Disrupts Alaska Natives’ Lives,

Reuters, April 16, 2004, available at

http://www.cnr.vt.edu/Isg/intro/global®e20warmimg®e20-%20alaska. pdf.

In the Arctic, sea | ice is one of the most important factors

influencing climate.“ Changes in sea ice have enormous

environmental, economic, and societal implications. * The

Arctic is rapidly losing its permanent sea ice.” Within a

century, the Arctic Ocean may have ice-free summers.”

The Arctic also exerts control over the global climate.**

Much as a spillway in a dam controls the level of a reservoir,

polar regions control the Earth’s heat balance.*’ As the

Arctic sea ice melts and shrinks, it reflects less sunlight and

the dark, open ocean absorbs more heat, eventually warming

the entire planet.** ;

As a result of the melting of sea ice, and a corresponding

diminishing of snow cover on.land, the far northern regions

of North America, including Alaska, are exceeding global

mean warming by about 40 percent. *S This is due to a

natural phenomenon known as poleward amplification: as

the ice cover decreases, the oceans and land absorb more of

the sun’s energy, creating a positive feedback that in turn

significantly increases warming in high latitudes.*°

Scientists also warn that the melting of the polar ice

sheets could have dire consequences.*’ If the current pace

of melting continues, the seas will rise 10 or more meters,

49 ] d

*° 5.7. Overpeck et al., Arctic System on Trajectory to New, Seasonally

lce-Free State, 86 EOS 312 (2005).

*" Id. at 309.

*2 Matthew Sturm et al., Melidown in the North, Scientific American 62

(Oct. 2003)

* Id.

** IPCC, Third Assessment Report: The Scientific Basis, Contribution of

Working Group I, supra note 13, Summary for Policymakers, at 13.

* See IPCC, Third Assessment Report: The Scientific Basis, Contribution

of Working Group |, supra note 13, Technical Summary at 50.

*’ Jonathan M. Gregory et al., Threatened Loss of the Greenland Ice

Sheet, 428 Nature 616 (2004).

flooding areas inhabited by 25 percent of the US.

population.** The Gulf and East Coast states will experience

the brunt of the impacts.”

In the Arctic, this melting likely will have devastating

consequences for polar bears, ice-dependent seals, walrus,

and the Alaska Natives for whom these animals are a

primary food source. Sea ice supports an important food

web of fish, seabirds, and marine mammals.”'

Phytoplankton blooms at the ice edge feed prolific arctic

cod, which in turn feed beluga whales, narwhal whales, arid

harp seals.” Polar bears, walrus, and ringed seals use the ice

for transportation and as a “floating platform for resting,

feeding, and producing their young.”

The Inupiat and Yupik of Alaska’s Arctic regions know

and rely on this sea ice environment, traveling on the ice

extensively in search of walrus, bowhead whales, and seals.™

Caleb Pungowiyi of Nome recounted the importance of

stable ice conditions:

Ice is a supporter of life. It brings the sea animals from

the North into our area and in the fall it also becomes an

*’ U.S. Geological Service, Sea Level and Climate, available at

http://pubs.usgs.gov/fs/fs2-00/.

° Id.

® ACIA report, supra note 8, at 8.

*' U.S. Dept. of Interior, Outer Continental Shelf Oil & Gas Leasing

Program: 2002-2007 Final Environmental Impact Statement, at 4-7

(April 2002).

62 Natl Res. Council, Nat’l Academy of Sciences, Cumulative

Environmental Effects of Oil & Gas Activities on Alaska’s North Slope,

at 92 (National Academies Press 2003).

* Margie A. Gibson & Sallie B. Schullinger, Answers from the Ice Edge,

8 (Arctic Network & Greenpeace USA. 1998), available at

http://archive.greenpeace.org/climate/arctic/reports/testimonies. pdf.

* Don Weller, Effects of Climate Change on Subsistence Communities

in Alaska, Assessing the Consequences of Climate Change for Alaska

and the Bering Sea Region: Proceedings of a Workshop at the University

of Alaska Fairbanks 66 (Nov. 1999).

extension of our land. When it freezes along the shore,

we go out on the ice to fish, to hunt marine mammals and

to travel. . . . When it starts disintegrating. and

disappearing faster it affects our lives dramatically.

Many Arctic communities depend on hunting polar bear,

walrus, seals, whales, seabirds and other marine animals.”

The thinning and retreating sea ice also makes it dangerous

to hunt walruses, seals and whales.*’ In 1998, whalers from

the village of Wainwright had to be rescued after the ice floe

they were on broke up and drifted out to sea.”

The thinning and receding of sea ice also is decimating

subsistence resources:

Gathering food directly from the land and the sea makes

the Yupik very careful observers of their surroundings.

In recent years, they have noticed that the walrus are

thinner, their blubber less nutritious and oil from walrus

fat does not burn as bright in their lamps as in times of

old. At the same time, they have noticed that there are

fewer and weaker seals. The Yupik hunters have had to

go farther and farther from shore to reach the ice pack to

find the newborn seals that are being fed fish from

nearby waters by their parents.”

As large-scale warming has reduced the extent of ice

upon which seals and walrus rest between searches for food,

these key marine mammals become weakened and less

productive, providing less sustenance for Native

** ACIA report, supra note 8, at 24.

*? Jim Motavalli, Feeling the Heat: Dispatches from the Frontlines of

Climate Change 108, Routledge (2004).

mash 2

* Nat'l Assessment Synthesis Team, U.S. Global Change Res. Program,

Climate Change Impacts on the United States: The Potential

Consequences of Climate Variability and Change 366, (2000) (citing

D.A. Rothrock et al., Thinning of the Arctic Sea-lce Cover, 26

Geophysical Research Letters 3469 (1999)).

communities.” Ice dependent seals, including the ringed

seal, ribbon seal, and bearded seal, re particularly

vulnerable because they give birth and nurse their pups on

the ice.’' They also forage near the ice edge, an extremely

productive area especially sensitive to climate change.” As

the ice melts, seal and walrus populations will decline.”’

2. Melting Permafrost Diminishes Subsistence

Resources

Permafrost is subsurface material that _remains

continuously frozen for at least two consecutive years.”* The

permafrost regions occupy approximately 24 percent of the

Northern Hemisphere’ s terrestrial surface.’* As the climate

differentially warms in summer and winter, the active layer

(the soil layer abdve permafrost that annually freezes and

thaws) will thicken.’°

Thickening of the active layer has two immediate

effects.’ First, decomposed plant material frozen in the

upper permafrost thaws, exposing the carbon to microbial

decomposition, which can release CO? and methane (CH,4) to

the atmosphere. ”* These Greenhouse gas releaseses may be

considerable.”

Climate Change Workshop 62 (1998) (citations omitted).

”. ACIA report, suprd note 8, at 59.

” Id.

US. Arctic Research Comm'n, Climate Change, Permafrost, and

Impacts on Civil Infrastructure, 3 (2003), available at

http://www.arctic.gov/publications.htm

” Id. at.

° U.S. Arctic Research Comm’n, The Arctic Ocean and Climate

Change: A Scenario For The US. Navy, 10 (2002) available at

http://www.arctic.gov/publications.htm

” US. Arctic Research Comm'n, Climate Change, Permafrost, and

Impacts on Civil Infrastructure, supra note 74, at 7.

8 Id. at 8. Because considerable quantities of carbon are sequestered in

the upper layers of permafrost, a widespread increase in the thickness of

Second, the ice in the upper permafrost is converted to

water.*° When ice-rich permafrost thaws, the surface

subsides.*' Typically, this settling does not occur uniformly

over space, but produces a chaotic surface with small hills

and wet depressions known as thermokarst terrain.** When

thermokarst occurs beneath a road, house, pipeline, or

airfield, it can compromise their structural integrity and lead

to collapse. With regional warming, large areas may

subside and areas near the coast may be inundated by

encroaching seas.™

Global warming will likely trigger a new episode of

widespread thermokarst, with serious consequences for most

of the engineered works constructed in the Arctic during the

twentieth century.** Already, melting permafrost has created

underground voids that collapse into sinkholes in northern

areas, such as the city of Fairoanks, has toppled spruce trees,

and has rippled pavement and bike trails.*° Homes and

buildings will sag into ruin.*’

Elsewhere, entire forests appear to be sinking or

the thawed layer could lead to the release of large quantities of CO, and

CH, to the atmosphere. /d. (citations omitted). This in turn would create

a positive feedback mechanism that could amplify regional and global

warming. /d.

”? David M. Lawrence and Andrew G. Slater, A Projection of Severe

Near-Surface Permafrost Degradation During the 21st Century, 32

Geophysical Research Letters L24401 (Dec. 17, 2005).

8! I id

2 Id.

® Id.

* Id.

*° Id. at 13-14.

(Aug. 14, 2005).

” Id.

drowning as melting permafrost forces water upward.”

Alaskans call the phenomenon “drunken trees.”®?

3. Warming Threatens Caribou, a Key Food

Source

“Sometimes when they're supposed to show up, they

don't show up. Sometimes they show up when they're

not supposed to show up... . We've got 15 villages in

Northeast Alaska and North Yukon Territory, and some

in Northwest Territory, where the same people are

depending on one caribou herd. We're caribou people. .

. and we all depend on that same herd that migrates

through our villages.” — Sarah James, Arctic Village,

Alaska”

Native peoples in more than 25 villages — more than

5,000 households —~ in northwestern Alaska depend on the

caribou for subsistence.”’ Caribou are prominent in Alaska

Native mythology, spirituality and cultural identity.”

Anthropogenic warming is projected to reduce the

traditional forage for caribou herds, which in turn could lead

to reduction in herd size. Caribou depend on the

availability of abundant tundra vegetation and good foraging

conditions, especially during the calving season.

Vegetation changes caused by climate change, along with

rising sea levels, are projected to shrink the tundra area to its

lowest extent in the past 21,000 years, greatly reducing

** Timothy Egan, Alaska, No Longer So Frigid, Starts to Crack, Burn

and Sag, N.Y. Times, §1 at | (June 16, 2002).

Id.

*' U.S. Geological Service, Status and Trends of the Nation's Biological

Resources, Part 2 (Alaska), available at

http://biology.usgs.gov/s+t/SNT/noframe/ak177.htm (hereinafter “USGS

report’).

* ACIA report, supra note 8, at 71.

* Id.

** Id. at 70.

breeding areas for many birds and grazing areas for land

animals.”

Freeze-thaw cycles and freezing rain are also projected to

increase.” Ice crust formation from freeze-thaw events

affects most Arctic land animals by encapsulating their food

plants in ice, severely limiting forage availability and

sometimes killing the plants.”’ This freeze-thaw effect has

caused caribou populations to crash dramatically and more

frequently."*> As the caribou herds face increasing trouble,

communities that rely on them for subsistence are forced to

reduce their harvest to ensure the sustainability of the herds.

B. Global Warming Is Endangering the Health and

Safety of Alaska Natives

“The storms are getting more frequent, the winds are

getting stronger, the water is getting higher and it’s

noticeable to everyone in town. If we get 12 to 14 foot

waves, this place is going to get wiped out in a matter of

hours. We're in panic mode because of how much

ground we're losing. If our airport gets flooded out,

there goes our evacuation by plane.” — Robert

lyatunguk, erosion coordinator for Shishmaref >

The effects of global warming have created health,

safety, and security problems for Alaska Native

communities. For example, the thinning and receding sea ice

make subsistence hunts more dangerous. People are forced

to travel farther across rough, open seas to reach the ice

where the animals are found. These trips are more

dangerous and costly.'° When they reach the ice, it is

unreliable and pieces often break off and float away in the

Id. at 46.

” Id. at 68.

* Id. at 69.

* Id. at 80.

Victim to Global Warming, Associated Press (Sept. 10, 2002).

oso

midst of a hunt. In 2002, more than 100 stranded hunters

had to be rescued when the ice on which they were hunting

drifted far from shore!”

Melting permafrost also threatens the security of Arctic

cOmmunities. Permafrost stabilizes the ground, buttressing

shorelines against fierce Arctic storms.'”’ As the permafrost

warms and thaws, that buffer dissolves and shorelines

erode.'” This effect is compounded by the retreat of the sea

ice, which no longer provides a calming influence on the

often rough seas. '

In Shishmaref, for example, retreating sea ice and

thawing permafrost have exposed the village to erosion fromr

Arctic storms, which are fiercer and more frequent than in

the past.’ In this village, which sits on a narrow barrier

island on the Chukchi Sea, several homes have fallen over a

bluff and others teeter on its edge. The 600 village residents

have watched one end of their village being eaten away,

losing as much as 15 meters of land overnight in one

storm.'°° In the past 30 years, 100 to 300 feet of coastline

has washed away, half of it since 1997.'°’

The absence of sea ice also deprives the residents of their

route of travel to the mainland to hunt moose and caribou as

they normally would do by early November.'® Now, that

waterway is ice free in autumn.'

101 Id.

'2 Orson P. Smith, & George Levasseur, /mpacts of Climate Change on

Transportation Infrastructure in Alaska, The Potential Impacts of

Climate Change on Transportation, Part Il, Regional Case Studies 6

(U.S. Dep’t of Transportation 2001).

Id. at 5-6.

'* fd. at 7; ACIA report, supra note 8, at 80.

'° ACIA report, supra note 8, at 80.

106

ld.

‘7 Roosevelt, supra note 38.

‘8 ACIA report, supra note 8, at 80.

109 Id

Shishmaref is not an anomaly. At Point Hope, a

bowhead-whaling village that dates from 600 B.C., flooding ~

seawater threatens the airport runway and a seven-mile

evacuation road. ''® “During storms, some people begin to

panic,” town official Rex Rock told Time.'"'

An investigation by the General Accounting Office, an

investigative arm of Congress, found that 184 out of 213

(86.4 percent) Alaska Native villages experience some level

of flooding and erosion.'’* The GAO report stated that:

Native villages on the coast or along rivers are subject to

both annual and episodic flooding and erosion. Various

studies and reports indicate that coastal villages in

Alaska are becoming more susceptible to flooding and

erosion in part because rising temperatures cause

protective shore ice to form later in the year, leaving the

villages vulnerable to fall storms. . . . In addition, villages

in low-lying areas along riverbanks or in river deltas are

susceptible to flooding and erosion caused by ice jams,

snow and glacial melts, rising sea levels, and heavy

rainfall.’

The cost of relocating these villages will be high.''* For

example, Shishmaref residents voted to leave the community

their families have inhabited for the past 4,000 years and

move to a site twelve miles away.''? Unfortunately, they

lack the many millions of dollars such a move would cost.'’°

For now, Shishmaref and three other Alaska Native villages

the Federal Government has found to be in “imminent

'® Roosevelt, supra note 38.

1 l 1 ld.

'? U.S. General Accounting Office, Alaska Native Villages: Most Are

Affected by Flooding and Erosion, But Few Qualify for Federal

Assistance, 2-3 (December 2003) (hereinafter “GAO report”).

"3 Id_at 3.

> 22

' ACIA report, supra note 8, at 80; Roosevelt, supra note 38.

danger” will remain where they are, exposed to the

consequences of global warming.’’’

III. Conclusion

As a result of global warming, the changes occurring in

Alaska are among the most dramatic on Earth, even though

the vast majority of the world’s greenhouse gas emissions

originate elsewhere. This dramatic destruction of the Arctic

is an early warning for the rest of the world of the

devastation that will likely occur if industrialized nations and

the industries that drive them fail to significantly curb their

emissions of greenhouse gases. The longer the Federal

Government delays regulation of greenhouse gases, the more

severe and long lasting the effects of global warming are

certain to be.

Reducing greenhouse gas emissions from automobiles is

a critical first step toward ensuring the survival of Alaska’s

Native communities. Thus, amici urge this Court to grant

the Petition for Certiorari.

Respectfully submitted,

Frances M. Raskin (D.C. Bar. No. 480874)

TRUSTEES FOR ALASKA

1026 West 4th Avenue, Suite 201

Anchorage, AK 99501

(907) 276-4244

Counsel for Amici Alaska Inter-Tribal Council, Council

of Athabascan Tribal Governments, and Resisting

Environmental Destruction of Indigenous Lands

'!? Roosevelt, supra note 38; GAO report, supra note 112, at 4.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.