The Makah and Shoalwater Bay Tribes’ lawsuits could signal a new avenue for tribal governments to recover climate costs from polluters.
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Two Indigenous tribal governments on the northwest coast of Washington state are suing major oil and gas companies for their role in causing disastrous changes to the climate, which the tribes say have forced their communities on the Olympic Peninsula to relocate to higher ground.
The Makah Indian Tribe and Shoalwater Bay Indian Tribe, federally recognized sovereign Native Nations who have lived on their land in what is now Washington state for thousands of years, have already begun the process of uprooting homes, roads, and communal infrastructure to avoid being swallowed by the wrath of worsening storms and rapidly rising seas.
That relocation has caused millions of dollars in losses to each tribe, who say they will “spend many hundreds of millions more” on climate adaptation measures — and are now arguing in two separate lawsuits that companies that knowingly fueled the crisis should pay their fair share.
“The costs and consequences to us are overwhelming,” said Makah Tribal Council Chairman Timothy J. Greene Sr. in a statement. “We intend to hold these companies accountable for hiding the truth about climate change and the effects of burning fossil fuels. And we aim to force them to help pay for the high costs of surviving the catastrophe caused by the climate crisis.”
They argue that the fossil fuel industry knew its products would cause “catastrophic climate change” as early as 1959, but lied for decades to prevent a transition to cleaner energy sources — leading to the cascading and costly consequences the tribes now face.
Filed on December 20, the lawsuits aim to hold ExxonMobil, Shell, Chevron, BP, ConocoPhillips, and Phillips 66 “accountable for their deceptive and unfair conduct” — including extensive marketing campaigns aimed at misleading the public about the dangers of fossil fuels. The complaint documents the ways those campaigns reach into the present day, as the companies continue to greenwash their operations, promote false climate solutions that extend the lifespan of fossil fuels, and minimize their harm while doubling down on oil and gas.
If successful, the lawsuits would force defendants to “pay for the damage their deceptive conduct has caused and will cause for decades to come.”
“Brutal Financial Arithmetic”
The Makah and Shoalwater Bay peoples have fought to ensure that they could carry their cultural traditions and means of sustenance through the millenia. The Makah Tribe, surrounded by the Pacific Ocean to the west and the Strait of Juan de Fuca to the north, has a robust fishing business in the town of Neah Bay, and is currently awaiting permission from the federal government to resume its hunt for gray whales. On the Shoalwater Bay Reservation, described in its lawsuit as a “small slice” of the tribe’s original territory, Tribal members continue to hunt, fish, and harvest shellfish in coastal waters that drain into the Willapa Bay.
But the effects of a warming climate — including severe coastal erosion, ocean acidification, and flooding — are threatening those ways of life, further straining tribal governments tasked with moving their entire communities upland.
In 2022, the Shoalwater Bay and Makah had to compete with other tribes on the Olympic Peninsula and across the country for up to $3 million grants provided by Congress to the Bureau of Indian Affairs for tribal relocation. “As climate change gets worse, tribes like Shoalwater Bay are being squeezed between existential threats and brutal financial arithmetic,” reported Christopher Flavelle of The New York Times that year. “Even if the Shoalwater Bay Tribe wins a relocation grant, $3 million wouldn’t even be enough to build a road up to the new site, let alone put homes on it.”
A summary of the grants — which will amount to $130 million for tribal relocation over the course of five years — shows that the Shoalwater Bay Tribe did not receive funding that year. The Makah Tribe received $300,000 for “relocation planning that integrates the compounding risks of climate change and extreme events,” and another $2 million to relocate its health clinic to a higher elevation.
The Makah and Shoalwater Bay Tribes declined additional interviews about the lawsuits through a representative. According to their complaints, the tribes are also battling increasing drought, more frequent and devastating wildfires, precipitation changes that threaten local water supplies, and debilitating heat that puts tribal members’ health — especially for the most vulnerable — at serious risk.
A New Front for Climate Accountability
The dilemma many tribes face isn’t exactly new: corporate and colonial powers have forced Indigenous communities out of their homes for centuries. But now the climate itself, warmed by expanding fossil fuel projects, is also disproportionately threatening what land and resources Indigenous people have left.
As state and municipal lawsuits to make polluters pay advance nationally, the Makah and Shoalwater Bay Tribes could lead the way for others to recover funds for climate adaptation and resilience. In Minnesota, which is suing major fossil fuel entities for lying about climate change, tribes are on the front lines of pollution and extraction, said Minnesota Senator Mary Kunesh, who is of Lakota heritage and whose mother and grandfather were members of the Standing Rock Sioux.
Minnesota is home to 11 sovereign Native Nations that are uniquely affected by climate change, and are often “the least invested in” by the state and federal government, she said. That comes with major health, emotional, and economic consequences. Kunesh is particularly concerned about Minnesota’s wild rice harvest this year, which will likely suffer from warming temperatures. Along with hunting, fishing, and recreation tourism, wild rice is one of the largest contributors to Indigenous communities’ economies in the state — now, all are at risk.
Minnesota’s lawsuit seeks to make ExxonMobil, Koch Industries, and the American Petroleum Institute stop lying to the public, fund a corrective public education campaign on climate, and compensate the state for the harm they’ve caused.
On Monday, January 8, the US Supreme Court rejected an appeal from the companies to stop the lawsuit from moving forward in state court — the latest in a string of losses for Big Oil’s attempts to avoid accountability in lawsuits over the industry’s climate deception.
Kunesh said she agrees that the fossil fuel industry “should be on the hook” for the damage. “They were not truthful, they were not transparent — they have to be held accountable and it has to be an example set for the future,” she said.
Matthew Fletcher, a law professor at the University of Michigan and a member of the Grand Traverse Band of Ottawa and Chippewa Indians, told ExxonKnews that the ability of two tribal governments to join states like Minnesota in taking Big Oil companies to court was a sign of their increased sovereignty and political power.
Until the year 2000, tribes needed permission from the US government to hire an attorney, he said. Now, “tribes can hire their own attorneys and they have legal standing on their own to make their own claims,” just as they’ve done to fight back against dangerous pipeline developments on their land.
Indigenous communities were excluded from litigation against the tobacco industry — lawsuits relying on many of the same state laws used in climate litigation against Big Oil for lying about the harms they knew their products would cause. But more recently, hundreds of tribes joined state and local governments suing the opioid industry using similar claims — and in 2021 and 2022, they reached a settlement with major opioid manufacturers for $665 million.
While that’s a comparatively small amount, lawsuits like the Makah and Shoalwater Bay Tribes’ could indicate that a new wave of accountability cases could be led by Indigenous communities on the frontlines of corporate harm.
“They absolutely should be at the front of this movement and holding these companies accountable,” said Kunesh.
The Road Ahead
The Makah and Shoalwater Bay Tribes aren’t the first to bring a climate lawsuit against Big Oil. One of the earliest climate accountability cases was filed in 2008 against 24 fossil fuel and utility companies by the Inupiat community in Kivalina, Alaska. The plaintiffs argued that as a result of the industry’s successful campaigns to delay climate action, they would need to spend hundreds of millions of dollars moving their village away from the coast, where houses and buildings once protected by now-melting Arctic sea ice “are in imminent danger of falling into the sea.”
Native Village of Kivalina v. ExxonMobil Corp was dismissed by a federal court, where it was filed. But in more recent years, the vast majority of corporate accountability lawsuits have been brought in state court, and judges have persistently ruled against oil companies’ efforts to move climate accountability cases out of state court. It’s unclear whether the oil industry will bring new arguments against lawsuits filed by tribes, whose reservations are federally designated lands. In December, the Pacific Coast Federation of Fisherman’s Association — the largest trade association of commercial fishermen on the West Coast, and another unique class of plaintiffs in these suits — voluntarily dismissed a climate deception case filed in 2018 after fossil fuel defendants successfully moved it to federal court.
The Makah and Shoalwater Bay Tribes’ suits, filed in Washington state’s King County Superior Court, cite violations of public nuisance laws and failure to warn, misrepresentations, and intentional concealment of information under the Washington Products Liability Act. Among other remedies, the plaintiffs are seeking an abatement fund “to be managed by the Tribes to remediate and adapt reservation lands, natural resources and infrastructure to climate change,” along with compensatory damages and fees.
They also request a jury trial, where the companies would be made to face the evidence of their deception in court.
“These oil companies knew their products were dangerous, yet they did nothing to mitigate those dangers or warn any of us about them, for decades,” said Shoalwater Bay Chairwoman Charlene Nelson in a statement. “Now we are facing hundreds of millions of dollars in costs to relocate our community to higher ground and protect our people, our property, and our heritage. These companies need to be held accountable for that.”