# Amicus Curiae Brief — Massachusetts v. EPA

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0245%3A07

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 549 U.S. 497

## Text

(4 ) rc |
No. 05-1120 ILED |
—MAY-+-5-0n5
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.

il

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

iV

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

TD

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

vi

a

uD

12

ll

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

ix

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

3

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.

5

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.

6

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.

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).

*© Alaska National Interest Lands Conservation Act (“ANILCA”), 16
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.

© Sheila Watt-Cloutier et al, Responding to Global C ‘limate Change,
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.*’

© Evon Peter, The People and the Caribou Are One, Voices from the
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.

© Native Village of Quinhagak v. Lujan, 35 F.3d 388, 389-90 (9th Cir.
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.

10

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,

at

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.

* 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).

1]

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).

12

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.

© Id. at6l.

*? 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)).

13

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.”

© Nancy G. Maynard, Final Report: Native Peoples-Native Homelands
Climate Change Workshop 62 (1998) (citations omitted).

”. ACIA report, suprd note 8, at 59.

” Id.

” 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

4

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).

"i

8! I id

2 Id.

® Id.

* Id.

*° Id. at 13-14.

*© Doug O’Hara, Permafrost is Warming, Anchorage Daily News, at Al
(Aug. 14, 2005).

” Id.

15

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).
89
Id.
© ACIA report, supra note 8, at 73.

*' 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.

16

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 70.
” Id. at 68.
* Id. at 69.
* Id. at 80.

"© Joseph B. Verrengia, Jn Alaska, an Ancestral Island Home Falls
Victim to Global Warming, Associated Press (Sept. 10, 2002).

17

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

18

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.
"© Verrengia, supra note 100, at 5.

19

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.

20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0245%3A07. Public record. Not legal advice.