Is Climate Litigation Too Political for Courts?
By Samantha Peppers, Staff Contributor
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. 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.”
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. 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.
Consistent with the Court’s statements in Baker, the Court rarely finds that a political question prohibits its ruling on an issue. 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. 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.
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. 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. 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. 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. 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. 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. Because the dispute was not ineluctably political, the Second Circuit reversed the decision. 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.
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, 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. 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. 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.
In the space of climate change public nuisance claims, the political question doctrine can serve as a bar to appropriate adjudication of meritorious claims. Although every climate change case has “political overtones,” it does not follow that every such case raises a nonjusticiable political question. The Southern District of New York in AEP misapplied the political question doctrine on grounds that the magnitude of such political overtones and the legislature’s refusal to make a policy determination with respect to greenhouse gas emissions reserved proper legal authority to resolve such disputes to the non-judicial branches. In the absence of some indicia that a non-judicial branch has legal authority to determine disputes with finality, the political question doctrine should not be invoked to dismiss climate change public nuisance claims that are otherwise proper under federal common law.
 U.S. Dep’t of Commerce v. Montana, 503 U.S. 442, 456–57 (1992) (quoting Baker v. Carr 369 U.S. 186 (1962)).
 For an in-depth discussion of how the political question doctrine represents an attempt to integrate judicial authority with the functions of the legislative and executive branches, see John Harrison, The Political Question Doctrines, 67 Am. U. L. Rev. 457, 505–09 (2017).
 369 U.S. 186, 217 (1962). The Court stated that a political question exists if any of the following can be shown to be “inextricable” from the dispute:
a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
 Connecticut v. American Elec. Power Co., 582 F.3d 309, 321 (2d Cir. 2009).
 See, e.g., Ctr. for Biological Diversity v. Hagel, 80 F. Supp. 3d 991, 994 (N.D. Cal. 2015), aff’d in part, rev’d in part and remanded sub nom. Ctr. for Biological Diversity v. Mattis, 868 F.3d 803 (9th Cir. 2017); Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009), aff’d, 696 F.3d 849 (9th Cir. 2012); Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849, 862 (S.D. Miss. 2012), aff’d, 718 F.3d 460 (5th Cir. 2013); Am. Motorcycle Ass’n v. Council on Envtl. Quality, 520 F. Supp. 464, 467 (D.D.C. 1981). This discussion focuses on the analysis of the political question doctrine in the context of climate change nuisance claims, but courts have addressed the issue in other forms of climate litigation, such as in cases involving claims of violations of constitutional and public trust rights. See Juliana v. United States, 217 F. Supp. 3d 1224, 1235-42 (D. Or. 2016).
 Connecticut v. American Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005); Connecticut v. American Elec. Power Co., 582 F.3d 309, 321–24 (2d Cir. 2009).
 AEP, 406 F. Supp. 2d at 271–72.
 Id. at 271 n.6, 272.
 Id. at 274.
 AEP, 582 F.3d at 321–32
 Id. at 330.
 Id. at 330–31.
 Id. at 392.
 American Elec. Power Co. v. Connecticut, 564 U.S. 410, 424 (2011). For a discussion of displacement in the context of climate change litigation, see John Wood, Easier Said Than Done: Displacing Public Nuisance When States Sue for Climate Change Damages, 41 Envtl. L. Rep. News & Analysis 10316 (2011).
 See Harrison, supra note 2, at 518.
 AEP, 406 F. Supp. 2d at 272–73.
 AEP, 582 F.3d at 331–32.
 Id. at 332.