(posted by Tim Dowling)
In its nuisance suit against the auto manufacturers, California alleges that the industry's greenhouse pollution constitutes a public nuisance by unreasonably interfering with the public's health, welfare, and property in several ways. The State seeks damages for the auto industry's share of the harm caused by global warming due to, among other things, the reduction in snowpack in the Sierra Nevada mountains, which provides a third of the States' water; increased flooding; rising sea levels and the erosion of the State's 1075-mile coast; more frequent and intense deadly heat waves; and increased wildfires.
The automakers moved to dismiss the complaint, arguing that even assuming everything in the complaint is true, industry should still win because the issues implicate complex domestic and foreign policy questions best left to the political branches. Accordingly, U.S. District Court Judge Martin J. Jenkins, appointed by President Clinton in 1997, assumed the alleged facts to be true in ruling on the motion.
Judge Martin granted industry's motion and dismissed the complaint. Whatever one thinks of the court's conclusions, its analysis is by no means knee-jerk or results-driven. The court recognizes that the judiciary sometimes is properly called upon to enter into heated controversies that have political and foreign policy implications, and that it is wrong to assume that every case "that touches upon foreign relations lies beyond judicial cognizance" (slip opinion at 8). Instead, drawing upon applicable precedent, the court listed six factors that should inform the inquiry of whether the central issues raised by the case are best left to the political branches.
The court concluded that one of the six factors "largely controls the analysis," namely "the impossibility of deciding [the case] without an initial policy determination of a kind clearly for nonjudicial discretion" (id. at 9). Relying heavily on the federal district court ruling in the nuisance suit brought by Connecticut and others against electric utilities for their greenhouse pollution -- Connecticut v. American Electric Co., 406 F. Supp.2d 265, 272 (S.D.N.Y. 2005) (appeal pending) -- Judge Jenkins concluded that resolving California's nuisance suit would requiring a fundamental balancing of the harm caused by global warming against the economic costs that might result from efforts to reduce greenhouse pollution, an inquiry he viewed as one "that must be made by the elected branches before a non-elected court can properly adjudicate a global warming nuisance claim" (slip opinion at 10).
The court's analysis, however, ignores the broader historical context surrounding the development and application of the political question doctrine. The judiciary traditionally has used the doctrine to avoid addressing issues that have "a textually demonstrable constitutional commitment" to the political branches. For example, in the 1939 case of Coleman v. Miller, the Supreme Court declined to address an issue concerning the ratification process that governs constitutional amendments. The case concerned a proposed amendment on child labor, and the issue was whether too much time had passed after the Congress passed the amendment to permit additional states to ratify it. The Court sidestepped the issue because the text of the Constitution lodges authority over the amendment process in the Congress.
In one of the earliest applications of the political question doctrine, Luther v. Borden (1849), the Court refused to decide whether a new "charter" government of Rhode Island, which arose out of political turmoil known as the Dorr Rebellion, violated Article IV of the Constitution, under which the United States guarantees to each state a republican form of government. The court concluded that the Constitution commits this type of controversy to the political branches of government.
In the California nuisance case, the carmakers might argue that the Constitution's Commerce Clause serves as textual evidence that Congress is the more appropriate branch to decide global warming issues because it authorizes the Congress to address these issues. But this authorization is a far cry from the kind of textual commitment to the political branches that has caused the judiciary to stay its hand in cases involving constitutional amendments, political party conventions, political turmoil and rebellion within the states, or certain war powers issues.
Moreover, the political question doctrine has been on the decline in recent decades. In the legislative reapportionment cases in the 1960s, the Court jumped headlong into a heated political controversy by, in effect, declaring the apportionment of every state legislature unconstitutional. In Powell v. McCormick, the court ruled that the House of Representatives unlawfully prohibited Adam Clayton Powell from taking his seat in the House, notwithstanding allegations of corruption and other misbehavior. And, of course, in Bush v. Gore, the court addressed highly contentious issues concerning a presidential election. Although the political question doctrine is still applied, its scope and force have been significantly circumscribed.
There is little recognition of these developments in the opinion dismissing California's nuisance suit. Although the suit might well be on the cutting-edge of nuisance law, that by itself does not make it a political question. Nor does the complexity of the issues or the remedy, standing alone. At bottom, the issues presented by the nuisance suit strike us as categorically similar to those raised in other nuisance cases involving environmental harm that other courts have resolved. More complex, yes, but no more political.
We hope the appellate courts keep the historical context of the political question doctrine in mind as they decide these cases.
UPDATE: California's opposition to industry's motion to dismiss is available here.