On June 24, 2009, the U.S. Court of Appeals for the Ninth Circuit issued a little notice Order, granting the unopposed motion of the State if California to dismiss its appeal of the district court decision in California v. General Motors Corp., No. 06-5755, 2007 WL 2726871 (N.D. Cal. Sept. 17, 2007).  The district court held that California’s suit for damages from the automobile manufacturing industry for injuries relating to climate change presented a nonjusticiable political question.  Two other courts of appeals have heard arguments on appeals of similar district court decisions that actions for nuisance to recover damages caused by greenhouse gas emissions presented nonjusticiable political questions:

• Comer v. Murphy Oil Co., No. 05-CV-436LG (S.D. Miss. Aug. 30, 2007)., the so-called “Katrina” litigation pending in the U.S. Court of Appeals for the Fifth Circuit;
• Connecticut v. American Electric Power (AEP), 406 F.Supp.2d 265 (S.D.N.Y. 2005), the case brought by several northeastern states against five electric utilities pending in the U.S. Court of Appeals for the Second Circuit; and

The “political question” doctrine sets provides generally that certain issues are best resolved by the decision-making processes of the “political” branches. The leading “political question” case is the Supreme Court decision in Baker v. Carr, 396 U.S. 186 (1962), which determined that the reapportionment of the districts for elected officials was a political question over which the federal courts did not have jurisdiction.

The dismissal of the Ninth Circuit appeal leaves two other potential avenues of Supreme Court review of whether tort claims alleging injury from greenhouse gas emissions may be adjudicated in federal court.  The nomination of Judge Sotomayor to replace the now-retired Justice Souter as Associate Justice of the Supreme Court could have a decisive impact on the result in the event the Supreme Court grants certiorari in one the cases.

Judge Sotomayor served as presiding judge on the Second Circuit panel that heard argument in the Connecticut case in June 2006.  That case, which has been held for over three years without a decision, could potentially become an issue in the Sotomayor confirmation hearings. Moreover, should Judge Sotomayor be confirmed, as currently seems likely, and that case becomes the vehicle for Supreme Court review, then Sotomayor would recuse herself from participating in the case, according to the guideline set out in 28 U.S.C. 455.

The consequences of this series of events lie firmly in the real of speculation.  But, some of the questions to be pondered as the two courts of appeals proceed include:

• Justice Souter sided with the majority in the landmark Massachusetts v. EPA decision holding that EPA had authority to regulate greenhouse gasses (GHGs) under the Clean Air Act, would a Justice Sotomayor have voted identically;
• Justice Souter’s political question jurisprudence is somewhat limited. The Supreme Court has yet to consider application of the political question doctrine in the cases of tort injuries from GHG emissions. During the one clear case of political question jurisprudence he faced during his tenure on the Court, Nixon v. United States, 506 U.S. 224 (1993)—a question relating to judicial impeachment proceedings—he expressed doubts whether the political question doctrine was an insurmountable bar to judicial action.
• Judge Sotomayor has had experience with political question jurisprudence in its relation to GHGs and federal common law—the Connecticut v. AEP case she heard in June 2006. During oral argument in that case, Judge Sotomayor’s questions of counsel could be interpreted as expressing skepticism of application of the political question doctrine (that oral argument can be found in nine parts: part 1, part 2, part 3, part 4, part 5, part 6, part 7, part 8 and part 9); and
• The issues before the Court in Massachusetts and those that would be before the Court in Comer or Connecticut are materially different—divining congressional intent in a statute versus determining whether a court should defer to the political branches in defining rules of liability. In the context of the Comer or Connecticut cases, the latter issues cannot be neatly categorized as liberal or conservative, activist or strict constructionist, empathetic or indifferent.

Based on the few district court decisions to date, climate change litigation in the federal courts appears headed toward an early grave—precluded from judicial review by political question jurisprudence.  There are, however, a number of imponderables that will be clarified before the death certificate is signed.

For further information about this topic, please contact Akin Gump.