The courts are bad for climate policies

The political question is a doctrine that codifies the constitutional principle of separation of powers in the context of federal litigation. That is, the political question doctrine reflects a fundamental constitutional theory: democracy functions best when coordinated elected branches, as opposed to politically-insulated federal judges, resolve political questions.[1] It holds that where legal issues give rise to “situations where judges would be taken far out of the role, the applicable legal rules assign authority elsewhere.”[2] The leading political question case, Baker v. Carr, sets forth six factors to consider in determining whether a case gives rise to a nonjusticiable political question.[3] The Court noted that cases involving political actions or issues do not automatically render them nonjusticiable and stated that only if one of the six factors is inseparable from a case should the court dismiss a dispute as a nonjusticiable political question.[4] Consistent with the Court’s statements in Baker, the Court rarely finds that a political question prohibits its ruling on an issue.[5] Contrary to the Court’s general hesitance to address the political question issue, lower courts have found the existence of nonjusticiable political questions in the context of climate change litigation.[6] One case in particular, Connecticut v. American Electric Power (AEP), exemplifies the broader judicial confusion as to how to adjudicate the Baker factors in the context of climate change litigation.[7] Argued in the Southern District of New York, AEP involved federal common law nuisance claims aimed at curbing carbon dioxide emissions from corporate electric power facilities.[8] Focusing primarily on Baker’s “impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion” factor, the district court noted that climate change was a “patently” political issue and “transcendently legislative” in nature.[9] The court therefore held that because the dispute touched upon a multitude of economic, environmental, foreign policy, and national security interests, it required a legislative determination with respect to climate change before it could hear the claims.[10] On appeal, the Second Circuit analyzed the Baker factors to determine whether the district court erred in its determination that the case presented a nonjusticiable political question.[11] Focusing on the district court’s reliance on the “impossibility” factor, the Second Circuit stated the flaw in the district court’s view that the political branches’ refusal to legislate carbon dioxide emissions reserved their legal authority to make an initial policy determination before litigation could be brought.[12] Specifically, the court found that, despite the political significance of the dispute, the political branches’ refusal to legislate carbon dioxide emissions does not preclude the plaintiffs from bringing claims under the federal common law nuisance doctrine.[13] Because the dispute was not ineluctably political, the Second Circuit reversed the decision.[14] The Supreme Court granted certiorari, but did not reach the issue of the political question doctrine and held that the Clean Air Act displaced the plaintiffs’ common law nuisance claims.[15] Setting aside the ultimate grounds on which the Supreme Court dismissed AEP, it is clear that the rationale for the district court’s dismissal under the political question doctrine is based on a confusion as to how to apply the doctrine to climate change disputes. Rather than look for indicia that a political actor has been given legal power to apply law to facts with finality, as did Justice Brennan in Baker,[16] the district court engaged in an elaborate discussion of the complexity of “initial policy determination[s]” that must be made before the judiciary can adjudicate a global warming nuisance claim.[17] The Second Circuit touched upon this point when it acknowledged the lack of a “unified policy on greenhouse gas emissions” that would comprehensively preclude the bringing of global warming nuisance claims.[18] However, the Second Circuit did not state explicitly that the political question doctrine only bars suits when a non-judicial actor or agency has been given legal authority to conclusively apply law to facts. In the context of climate change litigation, nothing precludes plaintiffs from bringing common law nuisance claims in the absence of some indicia that a non-judicial political branch, such as the Environmental Protection Agency, has final authority to determine the outcome of the dispute.