The Washington Legal Foundation has just released an interesting paper by Harvard law professor Laurence Tribe, co-authored with HLS student Joshua D. Branson and Shook, Hardy & Bacon attorney Tristan L. Duncan, arguing that public nuisance lawsuits against utilities for their alleged contributions to climate change should be considered non-justiciable political questions. They write:
global climate change raises such manifestly insuperable obstacles to principled judicial management that its very identification as a judicially redressable source of injury cries out for the response that the plaintiffs have taken their “petition for redress of grievances” to the wrong institution altogether.
Yet in a pair of recent high-profile cases, two U.S. Courts of Appeal allowed common law claims against carbon emitters and producers to proceed, holding that the nuisance doctrine sufficiently equips courts to redress the injuries caused by global climate change. Their holdings rested on two basic arguments. First, because the plaintiffs’ cause of action—the common law of nuisance—is both familiar and quintessentially judicial in nature, the claims must be justiciable. Second, . . . climate change plaintiffs do not ask for an explicitly wholesale rewriting of national energy policy, so their claims are insufficiently legislative in character to be nonjusticiable. Both of these arguments reflect a deep misunderstanding of the political question doctrine and its foundations.
The paper also argues that lawsuits against gasoline retailers alleging fraud because fuel quantities dispensed at gas stations is affected by temperature involve a non-justiciable political question as well, albeit on different grounds. In the case of the fuel litigation, the Constitution expressly delegates to Congress the authority to fix weights and measures.
The paper concludes:
Some prognosticators opine that the political question doctrine has fallen into disrepute and that it no longer constitutes a viable basis upon which to combat unconstitutional judicial overreaching. No doubt the standing doctrine could theoretically suffice to prevent some of the most audacious judicial sallies into the political thicket, as it might in the climate change case, where plaintiffs assert only undifferentiated and generalized causal chains from their chosen defendants to their alleged injuries. But when courts lose sight of the important limitations that the political question doctrine independently imposes upon judicial power–even where standing problems are at low ebb, as with the Motor Fuel case–then constitutional governance, and in turn the protection of individual rights and preservation of legal boundaries, suffer. The specter of two leading circuit courts manifestly losing their
way in the equally real thicket of political question doctrine underscores the urgency, perhaps through the intervention of the Supreme Court, of restoring the checks and balances of our constitutional system by reinforcing rather than eroding the doctrine’s bulwark against judicial meddling in disputes either expressly entrusted by the Constitution to the political branches or so plainly immune to coherent judicial management as to be implicitly entrusted to political processes. It is not only the climate of the globe that carries profound implications for our future; it is also the climate of the times and its implications for how we govern ourselves.
This is an interesting paper. I’ve been unpersuaded that the climate change cases are non-justiciable political quesitons, although I have also been unpersuaded that plaintiffs in the various climate cases (including Massachsuetts v. EPA) satisfied the requirements of Article III standing.
One implication of the argument by Tribe et al. could be that the Court was correct to consider Massachusetts v. EPA insofar as it entailed questions of statutory interpretation and administrative law, but that courts should not hear nuisance and other cases that lack any statutory grounding. In Mass v. EPA, the Court could look to the text of the Clean Air Act and the EPA’s decision to forego regulation. In the various nuisance cases, however, there is no equivalent source of a judicially manageable standard for a decision, so courts should stay their hands.