Climate Policy by Judicial Fiat: How Global Warming Lawsuits Subvert the Democratic Process

EVEN IF EVERYONE WERE to agree on the scientific questions pertaining to global warming, there would still remain many difficult questions of public policy: Are the benefits of trying to prevent a rise in global temperatures worth the costs? What policies and/or technologies would best forestall that warming? Who should bear the costs of those policies?

These are inherently political questions that can be answered properly only through the democratic political process—by the two branches of our government entrusted with making policy. The judicial branch is manifestly not one of those branches. Yet global warming activists, impatient with the political process, have called on the courts to step in and fashion a global warming policy through the process of litigation. Unfortunately, some courts now appear willing to oblige: In two separate cases, federal courts of appeals have allowed lawsuits to proceed against various utility, oil and gas, and chemical companies. These cases, filed under public nuisance laws, claim injuries from global warming due to the release of carbon dioxide by the defendant industries.

These decisions violate separation of powers principles, usurping the responsibilities and prerogatives of the legislative and executive branches and striking at the democratic process in what amounts to a judicial coup d’état. They are based on questionable legal principles, disputed science, and unproven and flimsy claims of causation.

Making Policy Is Not the Judiciary’s Job

Under the governmental structure designed by the United States Constitution, there is a clear separation of powers between the legislative, executive, and judicial branches of the federal government. As James Madison explained in The Federalist No. 48, the framers of the Constitution feared that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands” would lead to tyranny. In order to prevent such tyranny, they created three separate branches of government with distinctly different functions. While the judiciary is tasked with interpreting the law, it is the elected members of Congress who are responsible for determining what the public policy of the United States should be on many different issues and implementing that policy by passing laws that are then enforced by the executive branch.

However, there are many liberals who advocate using the judicial branch to bypass the legislative branch. When they are unable to convince legislators to pass the laws they want on specific public policy problems, they see the courts as an alternate forum for implementing, by judicial fiat, public policy that the democratic majority opposes. This practice violates the core principles of adherence to the rule of law and the democratic process that are the basis of our constitutional system.

That is what is happening in the area of climate change policy. Although Congress has passed various laws in the past three decades dealing with climate change, it has very pointedly not passed any legislation aimed at regulating it. Statutes such as the National Climate Program Act of 1978, the Global Climate Protection Act of 1987, and the Energy Policy Act of 1992 all provide only for research and planning to “expand the nation’s understanding of natural and man-induced climate processes.” President Bill Clinton signed the Kyoto Protocol, which would have required substantial carbon dioxide reductions by the United States, but that treaty was never ratified by the U.S. Senate. In fact, Congress passed a series of bills that barred the Environmental Protection Agency from implementing the treaty.

There is also a certain element of greed pushing the latest climate change litigation. The plaintiffs’ bar earned billions of dollars in attorneys’ fees in the court fight against tobacco companies, and the latest generation of plantiffs’ attorneys sees the opportunity for another legal fee bonanza that could easily (and greatly) eclipse those p­­rior fees. As Victor Schwartz, general counsel for the American Tort Reform Association, has said, there is a reason that the personal injury bar is “focusing only on ‘deep pocket’ American energy and utility companies,” despite the fact that any producer of greenhouse gasses like carbon dioxide could be a target.

Two Bad Rulings

Two bad court decisions on global warming occurred within a month of each other. On September 21, 2009, in Connecticut v. American Electric Power Company, the Second Circuit Court of Appeals brought back to life lawsuits that had been filed by Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont, Wisconsin, the City of New York, and a number of private land trusts against utility companies. Among the defendants are the Southern Company and the Tennessee Valley Authority, the agency started by President Franklin D. Roosevelt to bring electrical power to the Appalachian region of the United States. The states asserted that these utilities, as the five largest emitters of carbon dioxide in the country, constituting one-quarter of the U.S. electric power sector’s emissions, are a “public nuisance” that is causing global warming. Global warming, in turn, will supposedly cause irreparable harm to property in those states and threaten the health, safety, and well-being of their residents.

The claim was based in part on the dubious Intergovernmental Panel on Climate Change report that has been the subject of widespread criticism for its errors, gross exaggeration, and the possibility of outright fraud by a number of the scientists who contributed to the report. However, the states claimed that “official reports from American and international scientific bodies demonstrate the clear scientific consensus that global warming has begun, is altering the natural world, and will accelerate over the coming decades unless action is taken to reduce emissions of carbon dioxide.”

A New York federal district court actually dismissed these lawsuits initially, properly concluding that even if one assumed that all of the claims being made by the states were correct, what to do about global warming was a political question that was beyond the limits of the judiciary’s jurisdiction. (See sidebar on page 22.) According to the court, under our separation of powers, it is the elected branches of our government, Congress and the President, “to which our system commits such policy decisions.” Resolution of this issue “requires identification and balancing of economic, environmental, foreign policy, and national security interests,” which is the type of policy determination that is not intended for the courts.

However, this well-reasoned decision was overturned by a two-judge panel of the Second Circuit Court of Appeals. (The third judge on the panel, Sonia Sotomayor, took no part in the decision because of her elevation to the U.S. Supreme Court.) The panel held that the states and private organizations could bring a public nuisance claim under federal common law despite the fact that it would be virtually impossible for the plaintiffs to show any causal connection between the actions of the utility companies and any damages supposedly suffered by the plaintiffs, particularly given the questionable nature of the scientific theory underlying the claims. The political nature of this litigation was especially evident in the press release issued by Connecticut Attorney General Richard Blumenthal, who was a driving force behind the litigation. Blumenthal praised the Second Circuit’s decision as setting a precedent against “all who threaten our planet.” A petition requesting a review of the panel’s decision by the entire Second Circuit Court was denied.

Less than a month later, on October 16, 2009, a three-judge panel of the Fifth Circuit Court of Appeals also reinstated a lawsuit that a Mississippi federal district court had dismissed for the same reason the district court in New York had dismissed the American Electric Power Company case: because it was a nonjusticiable political question. In Comer v. Murphy Oil USA, plaintiffs’ lawyers filed a class action lawsuit against energy, fossil fuel, and chemical companies on behalf of residents of Mississippi who had suffered damage from Hurricane Katrina. They claimed that the defendants’ emissions of greenhouse gases contributed to global warming, which in turn caused a rise in sea levels, which then added to the ferocity of Hurricane Katrina, increasing the property damage suffered by the residents of the state. The lawsuit claims that the emissions constitute a public and private nuisance, as well as a trespass, negligence, unjust enrichment, fraudulent misrepresentation, and civil conspiracy. The plaintiffs claimed that Hurricane Katrina was a direct and proximate result of the defendants’ greenhouse gas emissions. The plaintiffs even admitted in their complaint that they were in court because there had been a “dearth of meaningful political action” to address global warming.

The district court correctly concluded that making a decision on this issue would exceed its constitutional authority and invade the roles of the legislative and executive branches. It observed that courts are “simply ill-equipped or unequipped” to deal with this issue. The debate over global warming “has no place in the court, until such time as Congress enacts legislation which sets appropriate standards by which the court can … adjudicate facts and apply the law.” It is not up to the court to set the standards. As in the Second Circuit, however, a three-judge panel of the Fifth Circuit Court of Appeals reversed the Mississippi court’s dismissal, misreading applicable Supreme Court precedent on political questions and holding that the plaintiffs’ nuisance, trespass, and negligence claims under state law could proceed in federal court. One of the most ridiculous aspects of the Fifth Circuit’s decision was its finding that the plaintiffs could satisfy the requirement that they show a connection between their injuries and the defendants’ actions.

A Nebulous Link

The claim that the defendants’ emissions of carbon dioxide either caused Hurricane Katrina in 2005 or enhanced its strength is scientifically dubious at best. There is no evidence that greenhouse emissions have caused an increase in the intensity or number of hurricanes; in fact, as Ben Lieberman of The Heritage Foundation has pointed out, “[t]he 2006 through 2008 hurricane seasons were at or below average, and the 2009 season went down as the weakest in more than a decade.” The Director of the National Hurricane Center told Congress that Katrina was “due to natural fluctuations/cycles of hurricane activity” and wrote in a paper that the connection between hurricanes and global warming is inconsequential compared to natural variability.

Even if such evidence existed, greenhouse emissions come from hundreds of millions of sources, man-made and natural. Contrary to the Fifth Circuit panel’s conclusion, it would be next to impossible for the plaintiffs to show a chain of causation between the defendants’ specific emissions and the specific climate event of Hurricane Katrina that supposedly caused the plaintiffs’ injuries. As noted attorney David Rivkin recently pointed out, “[g]iven the near-infinite number of emitters over the centuries, no court could find a substantial likelihood that any defendant, even a major [greenhouse gas]-emitting industry, caused the plaintiffs’ alleged global warming-related injuries to any quantifiable extent.” Fortunately, this decision by a three-judge panel was vacated and the case has been set for arguments before all of the judges of the Fifth Circuit. Hopefully, the Fifth Circuit as a whole will issue a decision reinstating the district court’s decision.

The Political Question Doctrine

It has been axiomatic throughout our constitutional history that there exist some questions beyond the proper reach of the judiciary. In fact, the political question doctrine originates in no less august a case than Marbury v. Madison, where Chief Justice Marshall stated that “[q]uestions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” Well over a century after that landmark ruling, the Supreme Court, in Baker v. Carr, famously announced six identifying characteristics of such nonjusticiable political questions, which, primarily as a “function of the separation of powers,” courts may not adjudicate. Of these six characteristics, the Court recently made clear that two are particularly important: (1) the presence of “a textually demonstrable constitutional commitment of the issue to a coordinate political department”; and (2) “a lack of judicially discoverable and manageable standards for resolving it.”

The spectrum of nonjusticiable political questions in a sense spans the poles formed by these two principles. At one pole, the Constitution’s specific textual commitments shield issues expressly reserved to the political branches from judicial interference. At the other pole lie matters not necessarily reserved in so many words to one of the political branches but nonetheless institutionally incapable of coherent and principled resolution by courts acting in a truly judicial capacity; such matters are protected from judicial meddling by the requirement that “judicial action must be governed by standard, by rule” and by the correlative axiom that “law pronounced by the courts must be principled, rational, and based upon reasoned distinctions.”

Excerpted from “Too Hot for Courts to Handle: Fuel Temperatures, Global Warming, and the Political Question Doctrine,” by Laurence H. Tribe, Joshua D. Branson, and Tristan L. Duncan, published by the Washington Legal Foundation, as a WLF Working Paper, January 2010.

The conclusion reached by the two federal district courts in Comer and American Electric Power Company that the climate issue is a political question was also reached by a federal district court in California in a third case that was decided on September 30, 2009. In Native Village of Kivalina v. ExxonMobil Corporation, the district court dismissed a public nuisance lawsuit by an Eskimo village against oil, energy, and utility companies claiming that the defendant’s emissions supposedly contributed to global warming, which eroded Arctic sea ice, which in turn flooded the village. As the court said, “there is no realistic possibility of tracing any particular alleged effect of global warming to any particular emissions by any specific person, entity, or group at any particular point in time. Plaintiffs essentially conceded that the genesis of global warming is attributable to numerous entities which individually and cumulatively over the span of centuries created the effects they now are experiencing.” To try to hold individual entities responsible for specific injuries under such circumstances makes no sense. This decision has been appealed to the Ninth Circuit Court of Appeals, the most liberal appeals court in the nation, which may reverse the district court. The Ninth Circuit consistently holds the record each year, however, for having the largest number of decisions overturned by the Supreme Court of any federal appeals court.

Judicial Tyranny Ahead

The nature of litigation does not lead to the effective development of regulatory policy based on considerations of science, economics, health, safety, and national security. Sympathy for the plight of those bringing suit can often lead to damage awards that are unjust and amount to bad regulation. Environmental regulation should be implemented through appropriate political action by Congress and the executive branch as required by our constitutional system. Tort law, selectively applied by individual judges or juries, is not equipped to make broad policy judgments and determinations on important issues facing our nation. Hopefully as these federal cases continue to work their way through the appeals process, the Supreme Court will eventually affirm that this issue must be left to the elected branches. If the appeals court decisions are upheld, then a tiny minority of unelected federal judges, as opposed to the elected representatives of the people, will be determining not only the environmental policy of the entire country, but the economic future of millions of Americans. Such regulation through litigation will lead to the equivalent of legal tyranny.

Mr. von Spakovsky is Senior Legal Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation.