Whether and how to fight global warming (decisions that could impose significant costs on consumers and taxpayers) are choices that could be denied to the political branches of government—i.e., those accountable to the voters. That would happen if the Supreme Court ends up agreeing with the plaintiffs in a case it heard on Tuesday. In American Electric Power v. Connecticut, six states and New York City want the Court to rule that the carbon emissions from five energy companies are a public nuisance that contributes to global warming.

According to David Rivkin and Lee Casey, global warming is a prime example of a political question that courts should not attempt to resolve. They point out that while there is considerable uncertainty about the extent to which manmade emissions contribute to warming, the entire human population produces carbon emissions. And, they say, without any standards created by the political branches, the courts cannot determine whose activities constitute a “nuisance” and whose do not. Further, Rivkin and Casey observe, there is likely no judicial remedy for the problem, since American courts cannot order China or other developing countries to curb their rapidly growing emissions. See “Climate Change Heads to the Supreme Court,” Wall Street Journal, April 15, 2011.

The AP reports that the justices were extremely skeptical of the plaintiff’s arguments.

For further discussion of the “political question” doctrine, see “Too Hot for the Courts to Handle: Fuel Temperatures, Global Warming, and the Political Question Doctrine,” by Laurence H. Tribe, Joshua D. Branson, and Tristan L. Duncan, Washington Legal Foundation, January 2010; and “Climate Policy by Judicial Fiat: How Global Warming Lawsuits Subvert the Democratic Process,” by Hans A. von Spakovsky, The Insider, Summer 2010.