The Political Question Doctrine's Role in Climate Change Nuisance Litigation: Are Power Utilities the First of Many Casualties?

• Date: 01 December 2010

12-2010 NEWS & ANALYSIS 40 ELR 11229

The Political

Question

Doctrine’s Role in

Climate Change

Nuisance

Litigation:

Are Power

Utilities the First

of Many

Casualties?

by Nathan Howe

Nathan Howe is a third-year law student at

Washington and Lee School of Law.

Editors’ Summary

Two recent circuit court decisions, Connecticut v. Amer-

ican Electric Power and Comer v. Murphy Oil USA, have

ruled on the political question doctrine as it is applied

in climate change nuisance litigation. ese decisions

focused on the critical third Baker formulation—

requiring an initial policy decision, in determining that

these cases were justiciable and within the judiciary’s

jurisdiction, paving the way for climate change litiga-

tion. However, it is still uncertain what role litigation

will hold in this period before legislation, and there may

be options available to emitters who may now be subject

to litigation.

Energy utilities bewa re—litigation is upon you. Two

decisions from the U.S. Court of Appeals for the Sec-

ond Circuit and the U.S. Court of Appeals for the

Fifth Circuit have disposed of the political question doctrine

as a defense and are now permitting common-law nuisance

actions to proceed that seek damages arising from the eects

of carbon emissions from large coal power companies, and a

host of other greenhouse gas (GHG) emitters in the energy

sector. Imagine the consequences if either of these actions

are successful in subjecting utilities to liability. e damages

and injunctions, if successful, would impose large costs on

these companies, which may then decide to transfer these

costs to consumers resulting in higher energy bills for those

consumers dependent on them. Even with signicant c au-

sation hurdles to overcome in their nuisance claims dimin-

ishing the likelihood of success,1 the potential for spending

millions of dolla rs on discovery alone in future litigation

should be a cause of concern for stationary sources. More-

over, it is unlikely that coal utilities could shield themselves

from litigation by reducing carbon emissions or adopting

carbon-balancing eorts2 in the absence of a political ques-

tion defense, because such eorts would only be considered

mitigating activities when evaluating the reasonableness

of the tort, and would not likely produce lega l protections

resulting in the dismissa ls of suits. is Article will address

four pressing questions on the minds of both defendants and

plaintis in upcoming climate change litigation raised by the

recent decisions of Connecticut v. American Electric Power

Inc. (AEP)3 and Comer v. Murphy Oil USA,4 and investigate

the signicance of t he political question doctrine through

an analysis of these two opinions and their implications in

the climate change litigation fora: (1)whether the Second

and Fifth Circuits misconstrued or manipulated the politi-

cal question doctrine in order to evade it; (2)what role has

1. See Congressional Research Service (CRS), Global Warming: e Litigation

Heats Up, at 19, available at http://ncseonline.org/nle/crsreports/06apr/

rl32764.pdf (last visited Mar. 15, 2010) (describing the challenges of climate

change litigation as an uphill battle common to many environmental law

claims where liability is sought for harms remote in time and place from the

pollution that is the subject of the controversy); see also David A. Grossman,

Warming Up to a Not-So-Radical Idea: Tort-Based Climate Change Litigation,

28 C. J. E. L. 1 (2003).

2. Carbon-balancing schemes have been included in proposed legislation as a way

for emitters to oset their emissions by funding carbon sequestration eorts,

either domestically or abroad. For an example of a proposed carbon-balancing

scheme, see the Lieberman-Warner Climate Security Act of 2008, S. 3036,

110th Cong., 2d Sess. (2008) (the Lieberman-Warner Act) (permitting osets

for up to 30% of emissions released).

3. 582 F.3d 309, 39 ELR 20215 (2d Cir. 2009).

4. 585 F.3d 855, 39 ELR 20237 (5th Cir. 2009).

Editors’ Note: is Article was the winner of the Environmen-

tal Law Institute’s Fifth Annual “Endangered Environmental

Laws” Student Writing Competition. For information on the

competition, see http://www.eli.org/writing_contest.cfm.

Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.