Constitution Daily

Smart conversation from the National Constitution Center

You be the Judge: should the high court take on climate change?

May 4, 2011 by Donald Applestein Esq.


In a case involving environmentalists and power companies over global warming and climate change, one would expect the Obama administration to side with the environmentalists. Wrong! In a curious twist of fate, the administration is aligning itself with the power companies in American Electric Power Company et al. vs. Connecticut et al.

Flickr photo by: naturesdawn
Photo by Flickr user: naturesdawn

The Supreme Court recently heard argument in this case where six states (California, Connecticut, Iowa, New York, Rhode Island and Vermont) and New York City have sued utility companies under common law theories of nuisance on the basis that their CO2 emissions allegedly cause global warming and climate change.

In response, the power companies (and the Administration) argue that environment standards are a “political question” and therefore the courts should not involve themselves. In addition, they assert that common law should not apply because statutory law (establishing the EPA which sets environmental standards) takes precedent. Since Congress has empowered the EPA to regulate environmental standards, the law (and the Judicial Branch) must look to the Executive Branch to set standards.

In the early 1800’s the Supreme Court developed the “Political Question” doctrine, under which the courts decline to be involved in political issues or controversies. This court-created doctrine is self-imposed which the courts interpret and apply as they see fit. It is not found in the Constitution. The doctrine is based on the idea of what is Justiciable – whether an issue is appropriate for the courts to decide. Under this doctrine, political questions are deemed inappropriate and courts will typically dismiss these cases.

Of course, the issue is – what is a “political question”? Just because a topic may be the subject of intense public debate, does not necessarily make it a “political question” – for example the courts have heard school desegregation, abortion and the “definition of marriage” cases.

More recently, in the latter part of the twentieth century, the Supreme Court has narrowed the definition of the doctrine, resulting in the courts’ increased activity in matters involving political debates. One example being the Supreme Court’s 1974 decision in United States v. Nixon involving the Watergate break-in and President Nixon’s assertion of Executive Privilege. (United States v. Nixon is one of the cases reviewed in the National Constitution Center’s Supreme Court display.)

Practical Considerations

In addition to legal considerations, there are practical issues deserving consideration:

  • Do federal judges have the necessary scientific and technical qualifications to decide issues involving global warming and climate change?
  • Does or should a federal judge have jurisdiction to render a decision on this type of issue that impact states that are not parties in the pending case?
  • Should there be up to 50 different state standards? Innumerable large city standards?
  • What additional costs would result if power companies were ordered to comply with up to 50 different state standards? Innumerable large city standards?
  • Is it wiser and does it make more economical sense to have one national standard set by the EPA?

You Be the Judge

Should the Supreme Court decline to hear this case?

Should the Court dismiss the case under the Political Question doctrine and let the EPA make this type of decision?

Should the Court send the case back to the District Court and let the case be decided on common law principles?


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