Amicus Curiae Brief — Massachusetts v. EPA

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(‘® Supreme Couti, Us.

r FILED

No. 05-1120 r

AUG 2.1. 2006

-~ OFFICE OF TiHit CLERK

jn Ohe

Supreme Court of the Antted States

COMMONWEALTH OF MASSACHUSETTS, et al,

Petitioners,

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICI CURIAE ALASKA INTER-TRIBAL

COUNCIL, COUNCIL OF ATHABASCAN TRIBAL

GOVERNMENTS, AND RESISTING ENVIRONMENTAL

DESTRUCTION ON INDIGENOUS LANDS

IN SUPPORT OF PETITIONERS

Frances M. Raskin

TRUSTEES FOR ALASKA

1026 W. 4th Avenue

Anchorage, Alaska 99501

(907) 276-4244

Counsel for Amici Curiae

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

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

every day experience 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 curiae, 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

NS OEE SCTE TELE! TEA TEE OR i

Authority for Filing Amicus Brief.............0...ccccceeeeeeeeeeeeees ii

Corporate Disclosure Statement ................c.essscssessssrerssvssveses il

ELIT SNOT SN ABN SAP RCSD SDS RTD iii

STIR OP LITO Oa Fe IRD Ae ap a Es POEL RTO V

SN GE PII i ceciesesctescicnnintpindsctarheiiectntinatenninimicnbiianien l

I. i a 2

II. Emissions of Greenhouse Gases from Human

Activities are Changing the Earth’s Climate at

GEE COIN TRIID soiscceccsicesesctnasinscntsecsnocnresoneses A

III. Climate Change Threatens the Physical and

Cultural Survival of Alaska Natives........................ 10

A. Climate Change Threatens the

Existence of Alaska Native

Communities and Culture........0....00000.000..00.. 12

1. Thinning and Receding Sea Ice

Reduces Subsistence

Resources on Arctic Coasts ............ 13

2. Melting Permafrost

Diminishes Subsistence

ETS Sets Sm 19

ill

IV.

3, Warming Threatens Caribou, a

ROY FOGG BOUIOD csscccssscssescvcessctices

B. Climate Charge is Endangering the

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

CR IIIGID 0s cccnccessinsscssenvesctsscsivnctincetaisidibiainnliiene

Table of Authorities

Page(s)

Cases

Native Village of Quinhagak v. Lujan,

SE NTE, CIID wicnssscccenessccsescoccsencosioosees 13

Statutes, Regulations & Court Rules

Alaska National Interest Lands Conservation Act

OEE CIN Olt IE an crnicctincticcunesesccsevensecsnsccoonenseieece 10, 13

Clean Air Act

§ 202(aX(1), 42 U.S.C. § 7521(a)(1) .........ccccerecscerceceeneees 3

§ 302(g), 42 U.S.C. § 7602(g) ......eeseceeee a eee 3

& BOD), 42 U.S.C. § TOO) ..naea..cccccvvsessesccccccccnvcucesesceee 4

Endangered Species Act

TE 10

Federally Recognized Indian Tribe List Act

AEE ET 2

Marine Mammal Protection Act

ce 10

Migratory Bird Treaty Act

SER ee 10

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

EEE LEE LL I 2

70 Fed. Reg. 71194-01 (Nov. 25, 2005)..........ccccccesseeseeeeees 2

Executive Mem. on Government-to-

Government Relations with Native American Tribal

Governments § 9 (April 29, 2004),

https://www.denix.osd.mil/denix/Public/Native/

Outreach/Memos/execmemo. html ....0............cccceceeeeeeeeeees

Other Authorities

Alaska Native Heritage Center website at

http://www.alaskanative.net/2.aSp ............:ccscecseeeeeneeeeees

Bauman, Margaret, Conference Attendees Receive an

Account of Arctic Warming, Peninsula Clarion

SI: STI cecscsihtinecinnitnneeeanbaiaph hel lsat illiaieaeia a

Burns, William C.G., From the Harpoon to the Heat:

Climate Change and the International Whaling

Commission in the 21" Century (Pacific Studies in

Development, Environment, and Security 2000). ...........

Chance, Norman A., The Inupiat and Arctic Alaska:

An Ethnography of Development, Harcourt (1990).........

Cooper, Lee W. et al., Rapid Seasonal Sea-Ice

Retreat in the Artctic Could Be Affecting Pacific

Walrus Recruitment, 32 Aquatic Mammals (2006). .......

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

to Crack, Burn and Sag, The New York Times, June

DG iis GE cessercscescecsntsnnscsnsinnabineeesientanstinenescuscinsentieeniens

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

Change and Fishing on Pacific Salmon Abundance

Over the Past 300 Years, 290 Science 795 (2000). .........

stn 7

... 1O

sone Ol

—

Gibson, Margie Ann & Schullinger, Sallie B.,

Answers from the Ice Edge: The Consequences of

Climate Change on Life in the Bering and Chukchi

Seas (Artic Network & Greenpeace U.S.A. 1998),

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

i iiistictintnintcictnsenciesceninncninciitntennietneppicisiniidiii 15

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

the Greenland Ice Sheet, 428 Nature 616 (2004). ............... 14

Hansen, James et al., Global Temperature Trends:

2005 Summation, National Aeronautics and Space

Agency (2005), | :

http://data.giss.nasa.gov/gistemp/2005/...........ccccccceceeeeeeeeees 5

Hassol, Susan Joy, Arctic Council, Jmpacts of a

Warming Arctic: Arctic Climate Impact Assessment

SUITTTTED scasuctiliedhdiiiishibiiadanshiilaniandinliiniessecnimatiepnipiatinaiedeiblantatiiabies passim

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

of Recent Climate Change in Northern Alaska and

Other Arctic Regions, 72 Climatic Change 252

icra athe alc inealaadinaidsicbaintncnieladedisiadiiditien 9,11

Intergovernmental Panel on Climate Change, Climate

Change 2001: Synthesis Report, Contribution of

Working Groups I, II, and If], 69, R.T. Robertson et

REET SIE RES eS on TN 6

Intergovernmental Panel on Climate Change,

Third Assessment Report: The Scientific Basis,

Contribution of Working Group I, Summary for

Policymakers,

J.T. Houghton et al. (eds.) (2001) ...........ccccccceceeeeeeeseeees passim

Vil

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

Global Climate Change, 302 Science 1719 (2003).....

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

Projection of Severe Near-Surface Permafrost

Degradation During the 21" Century, 32

Geophysical Research Letters L24401 (2005) ............

Maynard, Nancy G., Final Report: NativePeoples-

Native Homelands Climate Change Workshop (1998)...

Memorandum of William Ruckelshaus, EPA

Administrator, EPA Policy for the Administration of

Environmental Programs on Indian Reservations

eS cennssettihchlentnancccindesatddintvindicbineledeeenniiiaclle

Monett, Charles et al., Potential Effects of

Diminished Sea Ice on Open-Water Swimming,

Mortality, and Distribution of Polar Bears During

Fall in the Alaskan Beaufort Sea, Minerals

Management Service,

http://www.mms.gov/alaska/ess/Poster%20

Presentations/MarineMammalConference-

ON ERLE SEL ERTS

Motavalli, Jim, Feeling the Heat: Dispatches from

the Frontlines of Climate Change, Routledge (2004).

National Assessment Synthesis Team, U.S. Global

Change Res. Program, Climate Change Impacts on

the United States: The Potential Consequences of

Climate Variability and Change (2000) ............::00+

National Research Council, National Academy of

Sciences, Cumulative Environmental Effects of Oil &

Gas Activities on Alaska's North Slope (2003) .........-.

Vill

icienintbild 7

ecient 3

a 17

spines 18

. O’Hara, Doug, Permafrost is Warming, Anchorage

Se, FR, BG, Fees cecescetsctnteinitisicinitesivcimnmavcintnvenin 20

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

New, Seasonally Ice-Free State, 86 EOS 312 (2005).......... 14

Peter, Evon, The People and the Caribou Are One,

Voices from the Earth (2005),

http://www.sric.org/voices/2005/v6n I/caribou.html........... 12

Roosevelt, Margot, Vanishing Alaska, Time

NR, TRIE, 227, BU covinnccesenreipipiocseorsesenans 11, 23, 24, 25

Rosen, Yereth, Warming Climate Disrupts Alaska

Natives’ Lives, Reuters, April 16, 2004,

http://www.cnr.vt.edu/Isg/intro/global%20warmimg

IIE ncctccnciccniitcthcentetpiongutiduindinuipencruanpeebnteds 13

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

Climate Change on Transportation Infrastructure in

Alaska, The Potential Impacts of Climate Change on

Transportation, Part Il, Regional Case Studies -

(U.S. Dep’t of Transportation, 2001). 00... ceeeeeeeeeeeees 23

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

ERIS SUMAFEREE GOOD. | isevstcnccvitccticnctcdcctonsescecsessacvecsinsees 14

Threat to North’s Cultural Survival, 109 ECO 2

(Climate Action Network, Bonn, Germany) (2003),

http://www.climatenetwork.org/eco/cops/cop9/en/EC

Sy INIT, ccctncisisaisiossieidiidetndpesdicuintadactelinintirnstninuisniin 10

U.S. Arctic Research Commission, Climate Change,

Permafrost, and Impacts on Civil Infrastructure

(2003), http://www.arctic.gov/publications.htm. ............... 19

U.S. Arctic Research Commission, The ArcticOcean

and Climate Change: A Scenario For The U.S. Navy

(2002) http://www. arctic.gov/publications.htm. ................ 19

U.S. Department of Interior, Outer Continental Shelf

Oil & Gas Leasing Program: 2002-2007 Final

Environmental Impact Statement (2002). ..........2..::c0ecceeeeeee 15

U.S. General Accounting Office, Alaska Native

Villages: Most Are Affected by Flooding and

Erosion, But Few Qualify for Federal Assistance

RATED scclenhicnscubsessnmnniiibeiapgbiasnnmisliinashnanaiecininsibanianemetels 24

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

http://pubs.usgs.gov/fs/fS2-O0/..........::scccscesseeeesereesaeeneeeeeees 15

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

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

http://biology.usgs.gov/s+t/SNT/noframe/ak177.htm. ........ 21

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

Home Falls Victim to Global Warming, Associated

FUER; OE. BO, Bee cccsicceseccncevinossionseeiacecasenenbeoporense 22, 23, 25

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

Climate Change: The Perspective of the Inuit

Circumpolar Conference on the Arctic Climate

Impact Assessment,

http://www. inuitcircumpolar.com/index.php?ID=267

BNI crcccncecsccesorssessnsssnecrnsniahsiamiseansiaocenitstinepnansonannins 9,11

Weller, Don, Effects of Climate Change on

Subsistence Communities in Alaska, Assessing the

Consequences of Climate Change for Alaska and the

Bering Sea Region, University of Alaska Proceedings

CITI cniticthaneerencnsinenacssnalpdbieimessadinemajemnenamaniiastiniie 17

Summary of Argument

By failing to heed the scientific consensus that climate

change 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 anthropogenic 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 climate change: polar sea ice is

disappearing, weather patterns are changing, permafrost is

melting, wildlife populations are declining, and coasts are

eroding. At stake is the physical and cultural survival of

Alaska’s oldest inhabitants.

EPA 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).'

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 Inupiaq 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

Alaska’s 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.’

' 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. ld.

* See Alaska Native Heritage Center website at

http://www.alaskanative.net/2.asp (last visited August 26, 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 Federal agencies to operate

“within a government-to-government relationship with federally

This unique relationship requires EPA and other federal

agencies to “ensure meaningful and timely input by tribal

officials in the development of regulatory policies that have

tribal implications.” It requires EPA to give special

consideration to Tribal interests in making agency policy and

to insure the close involvement of Tribal Governments in

making decisions and managing environmental programs

affecting Tribal lands.°

The plain language of the Clean Air Act gives EPA

authority to regulate emissions of greenhouse gases -—

primarily carbon dioxide (CO 2), methane (CHg), nitrous

oxide, and fluorocarbons. 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. §

7521(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

recognized Native American tribes”), available at

https://www.denix.osd.mil/denix/Public/Native/Outreach/Memos/execme

mo.htm].

> Exec. Order No. 13175, supra note 4.

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

Administration of Environmental Programs on Indian Reservations

(Nov. 8, 1984).

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).

The greenhouse gases emitted by automobiles already

are endangering the health and welfare of Alaska Natives in

a manner that should trigger regulations under the Clean Air

Act. These emissions are affecting soils, water, vegetation,

animals, wildlife, weather, climate; damaging and

deteriorating property; creating transportation hazards; and

affecting economic values, and personal comfort and well-

being. Air and water temperatures are climbing, sea ice is

disappearing, weather patterns are less _ predictable,

permafrost is melting, vegetation cover is changing, wildlife

populations are threatened and declining, roads and villages

are crumbling, and key subsistence species are no longer

found in traditional hunting areas during the expected

seasons.

Il. Emissions of Greenhouse Gases from Human

Activities are Changing the Earth’s Climate at an

Unprecedented Rate.

The world’s climate scientists have reached an

overwhelming consensus’ that greenhouse gases

accumulating in the atmosphere as a result of human

activities are causing global average temperatures to rise.

They also agree that this warming effect is greatest in the

polar regions.

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.’ Emissions from these activities increase

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

Climate Impact Assessment 2 (2004) (hereinafter “ACIA report’).

concentrations of COQ, 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.”

In 2001, the Intergovernmental Panel on Climate

Change (IPCC) released a definitive report on climate

change. 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, and is very\likely to be

without precedent in many miflennia.'’ Last year, 2005, was

the warmest year in the last 100 years.”

Moreover, the likely rate of future warming is much

larger than the observed changes in the 20" century.'* In

part, this is because much of the COQ, emitted by human

activities is dissolved into the oceans, where it remains for

* ACIA report, at 2.

” Id

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

Working Group I, Summary for Policymakers 2, J.T. Houghton et al.,

eds., Cambridge Univ. Press (2001). The 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 useful to

decision makers. IPCC, Third Assessment Report: The Scientific Basis,

Technical Summary of the Working Group | Report 2 (hereinafter

“Technical Summary’).

'' IPCC, Third Assessment Report: The Scientific Basis, supra note 10,

Summary for Policymakers 2, 13.

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

National Aeronautics and Space Agency (2005), al

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

'' IPCC, Third Assessment Report: The Scientific Basis, supra note 19,

Summary for Policymakers 13.

several hundred years.'* Currently, the ocean and the land

together are 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 CO is decreasing as CQO; levels increase."

Warming reduces uptake of CO2 by the ocean, reduces the

transport of excess carbon to the deep ocean, and drives the

ocean to release CO; to the atmosphere. *

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

an enhanced warming.’ As a result, even after CO,

concentrations have been stabilized, global mean

temperature will increase for hundreds of years.”” Further, |

many greenhouse gases reside in the atmosphere for

centuries after being emitted, thereby causing a long-term

warming effect.”'

In the absence of reductions in emissions of greenhouse

gases, there is a 90 percent probability that the Earth will

warm between 1.4 degrees and 5.8 degrees Celsius (about

2.5 degrees to 10.4 degrees Fahrenheit) by the year 2100.”

‘4 IPCC, Third Assessment Report: The Scientific Basis, supra note 10, at

197.

'S IPCC, Third Assessment Report: The Scientific Basis, supra note 10,

Summary for Policymakers 7.

'© Id. at 197.

'7 IPCC, Third Assessment Report: The Scientific Basis, supra note 7, at

199.

'§ Id. at 186, 197.

'? IPCC, Third Assessment Report: The Scientific Basis, supra note 10, at

224.

2° IPCC, Third Assessment Report. The Scientific Basis, supra note 10,

Technical Summary 76.

2" Id. at 24.

2 IPCC, Climate Change 2001: Synthesis Report 69. The Synthesis

Report represents the formally agreed statement of the [PCC concerning

The end result will be more frequent heat waves, droughts,

extreme precipitation events and related impacts, such as

wildfires, heat stress, vegetation changes, and sea level

rise.

Even if the increase in atmospheric temperature is

limited to conservative scientific estimates (three degrees

Fahrenheit), it would constitute a change unparalleled in

recent millennia:”*

The last time it was three degrees warmer

[Fahrenheit] than now was 100,000 years ago.

Then, Central Europe had a climate like

Africa’s. And just three degrees separate

today from the other climatic extreme, the last

ice age of 10,000 years ago. Then, half of

Europe lay under ice, and the sea level was

390 feet lower than it is today. A bitter north

wind nipped at the ears of the polar bears

living atop the frozen Baltic . . . Since the end

of the last ice age, average global

temperatures have never fluctuated by more

than one degree.”°

The climate change prediction is even more dire in the

Arctic. As the IPCC report stated, the Arctic is extremely

vulnerable to climate change, and major physical, ecological,

and economic impacts are expected to appear rapidly.”°

key findings and uncertainties contained in the Working Group

contributions to the Third Assessment Report, supra note 10.

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

Change, 302 Science 1719, 1721 (2003).

** William C.G. Burns, From the Harpoon to the Heat: Climate Change

and the International Whaling Commission in the 21" Century 9 (Pacific

Studies in Development, Environment, and Security 2000).

Id.

ad PCC, Third Assessment Report: The Scientific Basis, supra note 7, at

60.

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.”

In 2004, the Arctic Council commissioned a report that

consolidated the scientific research on climate change trends,

causes, and effects.”* Nearly 300 scientists 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.

The annual average temperature in the Arctic has

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

27 Id. at 60. A feedback occurs when the result of a process affects its

origin thereby intensifying (positive feedback) or reducing (negative

feedback) the original effect. /d. at 91.

® ACIA report, supra note 7. The Council is a_ high-level,

intergovernmental forum that addresses the common concerns and

challenges faced by the people and governments of 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 Circumpolar Conference,

Russian Association of Indigenous Peoples of the North, and Saami

Council; and scientific observers.

? ACIA report, supra note 7.

world over the past few decades.’ Increasing global

concentrations of CO) and other greenhouse gases are

projected to contribute to additional Arctic warming of about

4 degrees to 7 degrees Celsius (about 7 degrees to 13 degrees

Fahrenheit) over the next 100 years.°' Scientists predict the

Arctic will enter a warming period not seen in recent

history.”

The six Arctic Indigenous Peoples’. organizations that

are members of the Arctic Council 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.”

*° ACIA report, supra note 7, at 10.

"Id.

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

Change in Northern Alaska and Other Arctic Regions, 72 Climatic

Change 252 (2005).

* Sheila Watt-Cloutier et al., Responding to Global Climate Change:

The Perspective of the Inuit Circumpolar Conference on the Arctic

Climate Impact Assessment,

http://www. inuitcircumpolar.com/index.php?!D=267& Lang=En (last

visited Aug. 28, 2006).

III. Climate Change 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

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

4 Threat to North’s Cultural Survival, 109 ECO 1 (Dec. 11, 2003).

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

of Development \7-18, Harcourt (1990).

U.S.C. § 3113. R

” 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 the 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).

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.*?

Climate change threatens 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.“

In the Pribilof Islands, villagers blame climate change and

industrial contaminants for the decline of 20 species, ranging

from kelp to sea lions.”

Climate change also may be reducing salmon

populations in Alaska.“° Salmon and other fish make up 60

percent of Alaska Natives’ subsistence resources. ‘7 Recent

declines in fish populations directly affect the dietary and

economic well-being of these people. In short, climate

** See, e.g., ACIA report, supra note 7, at 94.

39 Id

“ Id

"Id.

* Watt-Cloutier, Responding to Global Climate Change, supra note 29.

* Hinzman, supra note 23, at 286.

“Id.

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

** Bruce P. Finney et al., /mpacts of Climatic Change and Fishing on

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

797 (2000).

* ACIA report, supra note 7, at 119.

change 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. Climate Change Threatens The Existence of

Alaska Native Communities and Culture.

“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

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”

“* ACIA report, supra note 7, at 96.

** Evon Peter, The Peopie and the Caribou Are One, Voices from the

Earth, Spring 2005, http://www.sric.org/voices/2005/v6n 1 /caribou.htm!

(last visited Aug. 27, 2006).

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 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.”

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

*° 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. 95-1045 at 181, (1978)).

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

Reuters, April 16, 2004,

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

(last visited Aug. 27, 2006).

* Id

Sig

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, ue exceeding global

mean warming by about 40 percent.°' 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,

flooding areas inhabited by 25 percent of the US.

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

*? Id. at 309.

‘8 Matthew Sturm et al., Meltdown in the North, Scientific American 62

(2003)

” Id.

* Id.

S' IPCC, Third Assessment Report: The Scientific Basis, supra note 7,

Summary for Policymakers i 3.

8? See IPCC, Third Assessment Report: The Scientific Basis, supra note 7,

Technical Summary 50.

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

Sheet, 428 Nature 616 (2004).

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, and

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.’

As the sea ice melts, seal and walrus populations will

decline.”” Ice dependent seals, including the ringed seal,

ribbon seal, and bearded seal, are 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.”

* US. Geological Service, Sea Level and Climate, at

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

* Id.

* ACIA report, supra note 7, at 8.

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

Program: 2002-2007 Final Environmental Impact Statement 4-7 (2002).

* Nat’l Res. Council, Nat’l Academy of Sciences, Cumulative

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

92 (2003).

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

8 (Arctic Network & Greenpeace U.S.A. 1998),

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

visited Aug. 29, 2006).

”° ACIA report, supra note 7, at 59.

”" Id.

” Id.

Female walruses with calves use seasonal sea-ice as a

platform from which to dive to the bottom while feeding.”

These animals are not normally observed in deep water

because of the absence of food in those areas and their

inability to dive to depths greater than 200 meters.’* Walrus

calves are dependent on maternal care for two or more years

before they are able to forage for themselves, so the presence

of seasonal sea-ice appears to be critical to their survival.”

As the sea ice disappears, adult walrus may be forced to

abandon their calves to search for food.

In the summer of 2004, researchers in the Chukchi and

Beaufort Seas observed nine abandoned walrus calves.’°

These observations coincided with a rapid melting of sea ice

in that area.’’ It is likely that other walrus calves have been

abandoned, and presumably many have drowned.”*

If, as a result of environmental changes in the Arctic,

sea-ice continues to decline in thickness and extent, or if as

the researchers observed, seasonal sea-ice retreat occurs

rapidly with the onset of summer, it is possible that female

walruses will have difficulty nourishing themselves and

caring for their young.’”’ Separations of walrus may become

more common and widespread. Since walruses have a low

reproduction rate and a high investment in nurturing young,

with single calves born only every two to three years, the

Pacific walrus populations may soon decline.*”

™ Lee W. Cooper et al., Rapid Seasonal Sea-Ice Retreat in the Arctic

Could Be Affecting Pacific Walrus Recruitment, 32 Aquatic Mammals 98

(April 2006).

"Id.

” Id.

"° Id.

” Id. at 100.

* Id. at 98.

” Id. at 101.

" Id.

The same is true for the polar bear. In September 2004,

researchers with the U.S. Minerals Management Service

observed an unusual number of bears swimming offshore in

the Beaufort Sea.*' Following an abrupt windstorm, the

researchers saw four dead bears floating far offshore in the

same area.” This is the first reporting of drowned polar

bears, and it is likely that many other bears have drowned.*®?

Arctic Inupiat communities depend on the sea for food,

clothing, and other necessities, and they have traditionally

harvested whales, walrus, seals, and other marine mammals.

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 communities.”

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 extension of our

land. When it freezes along the shore, we go

out on the ice to fish, to hunt marine

*' Charles Monett et al., Potential Effects of Diminished Sea Ice on Open-

Water Swimming, Mortality, and Distribution of Polar Bears During Fall

in the Alaskan Beaufort Sea, Minerals Mgmt. Serv.,

http://www.mms.gov/alaska/ess/Poster%20Presentations/Marine Mammal

Conference-Dec2005.pdf (last visited August 29, 2006).

82 Id.

as Nancy G. Maynard, Final Report: Native Peoples-Native Homelands

Climate Change Workshop 62 (1998) (citations omitted)

® Don Weller, Effects of Climate Change on Subsistence Communities

in Alaska, Assessing the Consequences of Climate Change for Alaska

and the Bering Sea Region, Univ. of Alaska Proc. 66 (1999).

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 for

their sustenance.*’ They now hunt at their own peril. The

thinning and retreating sea ice makes it dangerous to hunt

walruses, seals, and whales.** In 1998, a group of Native

whalers 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.

*° ACIA report, supra note 7, at 24.

*” Id. at 61.

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

Climate Change 108, Routledge (2004).

” Id.

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)).

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 above permafrost that annually freezes and

thaws) will thicken.”

Thickening of the active layer has two immediate

effects.” F irst, decomposed plant material frozen in the

upper permafrost thaws, exposing the carbon to microbial

decomposition, which can release CO and methane to the

atmosphere.” These greenhouse gas releases may be

considerable.”

Second, the ice in the upper permafrost is converted to

water.” When ice-rich permafrost thaws, the surface

*! U.S. Arctic Research Comm’n, Climate Change, Permafrost, and

Impacts on Civil Infrastructure 3 (2003),

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

% Id. at 5.

* U.S. Arctic Research Comm'n, The Arctic Ocean and Climate

Change: A Scenario For The US Navy 10 (2002)

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

* US. Arctic Research Comm’n, Climate Change, Permafrost, and

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

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

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

CH, to the atmosphere. This in turn would create a positive feedback

mechanism that could amplify regional and global warming) (citations

omitted).

Near-Surface Permafrost Degradation During the 2/st Century, 32

Geophysical Research Letters L24401 (2005).

7 Id.

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.'”'

Climate change 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 Fairbanks, the melting has

toppled spruce trees, and rippled pavement and bike trails

abound.’ Homes and buildings will sag into ruin.'™

Elsewhere, entire forests appear to be sinking or

drowning as melting permafrost forces water upward.'”°

Alaskans call the phenomenon “drunken trees.”"°

102 Id. at 13-14.

‘> Doug O'Hara, Permafrost is Warming, Anchorage Daily News, Aug.

14, 2005, at Al.

1° Timothy Egan, Alaska, No Longer So Frigid, Starts to Crack, Burn

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

= of

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 peopte .

. . 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.''® The health of a caribou herd

depends 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 breeding areas for many birds and grazing

areas for land animals.''”

107

ACIA report, supra note 7, at 73.

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

Resources, Part is (Alaska),

http://biology.usgs.gov/s+USNT/noframe/ak177.htm (last visited Aug.

29, 2006) (hereinafter “USGS report”).

10? ACIA report, supra note 7, at 71.

Id.

"Id. at 70.

‘2 Id. at 46.

108

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 significantly and

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. Climate Change 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 climate change 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

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

3 Id. at 70.

‘4 Id. at 68.

> Id. at 69.

8 Jd. at 80.

'” Joseph B. Verrengia, /n Alaska, an Ancestral Island Home Falls

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

' 19

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 from

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 Shishmaref

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.'*°

118 Id.

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).

2 Id. at 5-6.

2) Id. at 7; ACIA report, supra note 7, at 80.

ACIA report, supra note 7, at 80.

123

4 Roosevelt, supra note 45.

ACIA report, supra note 7, at 80.

126 Id

122

125

Shishmaref is not an anomaly. At Point Hope, a

bowhead-whaling village on the northwest coast of Alaska

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 Shishmaref and other villages will

be high.'*' Shishmaref residents voted to leave the.

community their families have inhabited forthe past 4,000

2? Roosevelt, supra note 40.

"8 Id.

' 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”).

9 Id. at 3.

131 ld

years and move to a site twelve miles away.'”

Unfortunately, the villages lack the many millions of dollars

such moves would cost.'*? For now, Shishmaref and three

other Alaska Native villages the Federal Government has

found to be in “imminent danger” will remain where they

are, exposed to the consequences of climate change.'**

IV. Conclusion.

The effects of climate change already 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 in Alaska 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 climate change are

certain to be. Reducing greenhouse gas emissions from

automobiles is a critical first step toward ensuring the

survival of Alaska’s Native communities.

For the foregoing reasons, the Court should reverse the

decision of the Court of Appeals.

2 ACIA report, supra note 7, at 80; Roosevelt, supra note 45.

Verrengia, supra note 117, at 5.

Roosevelt, supra note 45; GAO report, supra note 129, at 4.

133

134

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 Curiae Alaska Inter-Tribal Council,

Council of Athabascan Tribal Governments, and

Resisting Environmental Destruction of Indigenous

Lands

August 31, 2006

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.