YLJ Online Symposium: “AEP v. Connecticut and the Future of the Political Question Doctrine” and “What Litigation of a Climate Nuisance Suit Might Look Like”

The Yale Law Journal Online‘s new series, Summary Judgment, which features timely responses by academics and practitioners to recent court decisions, continues with the final two installments of its symposium on the Supreme Court’s June decision in American Electric Power Co., Inc. v. Connecticut, 564 U.S. __ , 131 S. Ct. 2527 (2011) (AEP).

In AEP v. Connecticut and the Future of the Political Question Doctrine, Professor James R. May considers the Court’s conspicuous silence regarding the political question doctrine in the climate change context. Although AEP rose to the Supreme Court on the political question issue—the district court dismissed the case as nonjusticiable under the doctrine and the Second Circuit reversed—the Supreme Court itself only obliquely addressed the political question doctrine in that case. But after parsing Justice Ginsburg’s opinion as well as Justice Alito’s concurrence, May concludes that “at the very least, a majority of the Supreme Court has broader views of the justiciability of federal common law claims for climate change than did the district court in AEP.” Although AEP’s implications for other types of cases (e.g., state-common-law claims) are “difficult to gauge,” May observes that one thing is clear: “in AEP, the Supreme Court appeared to endorse the view that courts should not hide from [climate change] issues behind the veil of the political question doctrine.”

While Professor May ultimately urges courts to grapple with global warming and the harms that it inflicts, Professor Michael B. Gerrard questions the wisdom of public nuisance suits in the climate change context. In What Litigation of a Climate Nuisance Suit Might Look Like, Gerrard considers the likely consequences that would follow if courts decline to dismiss these claims on grounds of “displacement, preemption, political question, and standing.” Gerrard concludes that even without those threshold issues, litigation would still involve “extraordinary difficulties.” Throughout the Essay, he enumerates the mind-numbing number of “open questions that would face the parties and the courts.”

Gerrard begins with the difficult question of selecting defendants in climate change actions. This question implicates complex issues of joint and several liability, personal jurisdiction, assessment of unreasonable conduct, operation under governmental permits, statutes of limitations, choice of law, company successorship, supply chains, government liability, and non-industrial emissions. Beyond defendant selection, other problems abound: burden of proof for causation, potential “sprawling class actions,” issue preclusion in multiple lawsuits against the same emitter, measure of damages, assumption of risk, insurance coverage, non-emissions conduct as a factor of liability, venue and consolidation, scope of discovery, and the potential for an almost-unlimited flood of alien tort actions against U.S. emitters.

At the end of his inquiry, Gerrard voices agreement with the Court in its decision that “setting emissions limitations is beyond the competence of the courts.” He predicts that “if any trial court does eventually approach the merits of a suit seeking money damages for [greenhouse gas] emissions, it may find it is embarking down a wormhole, and upon comprehending the journey it may recoil.” While it is crucial for courts to “interpret[] and enforc[e] congressional and regulatory mandates,” Gerrard warns that “erecting a new liability scheme to redress the impacts of our economic system is an entirely different and perilous voyage.”

The Summary Judgment series is available on YLJ Online. Please also visit the site to read our latest Online Essays and to view recent issues of our print edition in an electronic format.

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