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

Date01 December 2010
12-2010 NEWS & ANALYSIS 40 ELR 11229
The Political
Doctrine’s Role in
Climate Change
Are Power
Utilities the First
of Many
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
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
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®,, 1-800-433-5120.

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