From: Alice Kaswan, Professor of Law
Published September 27, 2007 04:21 PM

Federal Courts And Climate Change Suits

Alice Kaswan is a Professor of Environmental Law at the University of San Francisco School of Law and is a frequent commentator on the topic of environmental laws and justice.

A federal court recently dismissed a landmark lawsuit brought by California against major automakers that sought to recoup the money the state has spent, and will continue to spend, to address the effects of climate change. The suit, which argued that the greenhouse gas emissions from automobiles constitute a public nuisance because they are a significant contributor to climate change, was dismissed Sept. 17 by Judge Martin Jenkins of the U.S. District Court for the Northern District of California on the grounds that it was a political question better suited to the legislative and executive branches of government. The court’s reasoning, however, overlooked the important role that the judiciary has played in addressing politically charged questions throughout the nation’s long and historic common law tradition. While few would question the relative desirability of a regulatory response, when the political branches fail to act, the courts have a key role to play.

When California brought its suit in September 2006 the federal government had refused to address greenhouse gas emissions from automobiles. The Environmental Protection Agency claimed it did not have the authority or the will to regulate greenhouse gases, and Congress showed no interest in doing so. California had already done all it could to address automobile emissions. The state had passed a law in 2002 to control greenhouse gas emissions from automobiles sold in California, and, if the limits are approved by EPA, they could potentially be applied in several other states. California, however, had no regulatory authority to address automobile greenhouse gases in the rest of the states, notwithstanding their likely impact  on California’s environment.

In response to the federal government’s failure to act, California brought suit against General Motors, Toyota, Ford Motor Co., Honda, Daimler Chrysler, and Nissan, who collectively account for 92 percent of automobile emissions in the United States. The state alleged that these automakers contribute 20 percent of human-generated carbon dioxide emissions in California and 30 percent in the United States. Because of the significant contribution that auto emissions make to climate change, California argued that they create a public nuisance and sought to recoup the millions of dollars that it has spent already and will have to spend to address the problem.

From an environmental standpoint, a victory in this suit would have spurred action by automakers. If the automobile industry were required to pay damages, it would be held accountable for its past emissions, and would likely minimize future greenhouse gas emissions to reduce or eliminate future liability. The U.S. District Court, however, dismissed the case under the “political question doctrine.” That rarely-used doctrine seeks to ascertain whether the issue in question is one that can be properly decided by the judiciary or would be better left to the political branches of government.

Judge Jenkins followed the lead of the only other climate change public nuisance case decided to date, which involved claims brought by a number of states against five major utilities stating that their greenhouse gas emissions constituted a public nuisance. In a 2005 decision in Connecticut v. AEP, a federal district court in New York dismissed the states’ claims that power plant emissions were a public nuisance under the political question doctrine. In both cases, the courts found that the issue at hand was an underlying policy decision that needed to be made by the political branches.

The district courts suggested that the cases raised a political question because they required the courts to weigh various environmental, economic, and political concerns with no guidance from the legislative or executive branches of government. Weigh these concerns they must, but that is simply the nature of common law nuisance. Common law, by definition, is judge-made law. Common law countries, like England and the United States, have a long tradition of relying on the courts to make important policy determinations where the other branches of government have failed to act.

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There is no question that the scale of the cases is extraordinary in light of their potential impact on the defendant industries. Nonetheless, the nature of the question posed – whether the industries are causing a public nuisance --  is not unusual in the common law. By framing complex policy questions as “political questions” the courts shrink the proper scope of the common law and unduly limit their jurisdiction.

The courts, of course, are not ideal venues for resolving climate change issues.  They lack the expertise and the resources of administrative agencies and judges are unelected. But that has been the case throughout the history of environmental law. Until the legislative branches developed a better regulatory alternative, the courts did their duty and addressed the injuries brought before them, often through the type of nuisance law employed in this case.

Fundamentally, the common law provides a means of redressing wrongs that have not been tackled by the other branches of government. In the public utilities case, neither the federal executive nor Congress has addressed greenhouse gas emissions to date and only the common law provides a remedy that could transcend state lines. Notwithstanding their significant contribution to climate change, the Connecticut v. AEP decision created a legal vacuum for the regulation of electric utilities, except in the few states that have initiated their own controls.

The automobile manufacturer story has become more complex. At the time the suit was brought, neither the executive nor Congress were regulating automobile greenhouse gas emissions and the common law appeared to be the only route toward national control. In April 2007, however, the Supreme Court ruled in Massachusetts v. EPA that, contrary to its assertions, EPA did have jurisdiction over greenhouse gas emissions from automobiles. Since then, President Bush has directed EPA to initiate automobile emission regulations. While the risk of a legal vacuum is thus now less in the automobile case than in the utility case, the court’s use of the political question doctrine nonetheless sets a troubling precedent. (The court’s use of the political question doctrine was also arguably unnecessary, since EPA’s regulatory efforts have likely displaced the federal common law for automobile pollutants. Unlike the political question doctrine, a decision based upon federal displacement of the common law would have respected the important role the courts play in the absence of federal regulation.)

The court’s use of the political question doctrine also ignores the common law’s critical role in the evolution of law. As victims respond to serious environmental problems by going directly to the courts, they create political pressure for more comprehensive and appropriate legislative solutions. The defendants, who might otherwise have resisted regulation, become regulatory advocates when faced with the prospect of piecemeal common law liability. In traditional environmental law, the threat of common law environmental liability gave the affected industries an incentive to support, rather than resist, more comprehensive regulation.

In the automobile context, auto manufacturers have resisted federal regulation of greenhouse gas emissions. Automakers that are now resisting administrative or legislative limitations would have had a greater incentive to participate constructively in legislative solutions if they faced the threat of common law liability. By dismissing the case on the political question doctrine, the court has interfered with the evolution of climate change policy.

The courts’ use of the political question doctrine to dismiss this case and Connecticut v. AEP raises grave jurisprudential concerns. The courts have misunderstood the nature and power of the common law. While courts are clearly less well qualified to decide these cases than the political branches, they provide the impetus for the development of more appropriate regulatory responses. Importantly, they provide a recourse for victims when the political branches are paralyzed. Interest groups cannot hobble a court’s decision-making. Courts do not have the luxury of delay.

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