Below is the second entry in a three-part series of guest blogs by Ken Alex, Senior Assistant Assistant Attorney General in charge of the Environment Section of the California Department of Justice, focusing on climate change litigation in the United States.

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Four different district courts have dismissed federal common law public nuisance actions alleging harm from greenhouse gas emissions and global warming.  Two of those decisions have been reversed by two different circuit courts (2d and 5th Circuits), one case was voluntarily dismissed by the plaintiff, and the fourth case has begun the appeal process in the 9th Circuit.  Faced with a claim that a series of defendants have contributed to global warming and the harms caused by it, it is understandable that a district court judge might decide that the political branches would provide a better forum for resolution.  But ours is a tripartite form of government, and the judiciary plays an essential role in redressing harm.
The U.S. Constitution assigns particular tasks to each of the three branches of government.  In Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court set forth the basic tests for determination of when particular disputes are beyond the purview of the judiciary, for resolution by the “political” branches of government – the Legislature and the Executive. The Court set out six factors for consideration, of which, the first three are the most important:  is there “a textually demonstrable constitutional commitment” of the issue to the Legislature or the Executive; is there a lack of judicially discoverable and manageable standards for resolving the case; or does the case create an the impossibility of deciding it without an initial policy determination of a kind clearly for non-judicial discretion?

In the global warming federal common law cases, both circuit courts – in Comer v. Murphy (5th Cir.) and Connecticut v. AEP (2d Cir.) — rejected the idea that the claims were non-justiciable.  The cases, after all, arise in tort, within the typical domain of the courts.  The claims raise complex issues, some of which are at the crossroads of science, policy, and law, but so do a myriad of other cases and claims resolved on a regular basis by federal courts.  The circuit court opinions reflect the importance of having appellate courts.  The district courts balked at the complexity posed by the global warming cases and wanted them out of their courtrooms, but the circuit courts defended the role of the judiciary in the tripartite system, even where the issues are potentially complex and difficult.

Most of us, including the plaintiffs in these cases, would agree that a federal legislative solution to global warming is preferable to piecemeal judicial decisions driven by particular plaintiffs and particular harms.  But in the absence of federal legislation, the judicial branch offers recourse.  Importantly, there is no judicial decision that will preclude congressional action.  In fact, a judicial decision may well give rise to faster, more specific, more effective congressional action, just as the system is designed.  The three branches have distinct roles under our Constitution, but they also overlap and can engage in a dialogue.  If a court issues a global warming ruling under the federal common law that Congress dislikes, Congress has the ability to respond, by simply passing a law.  Right now, Congress has not acted, leaving California and others with recourse in the federal system primarily in the courts.

Next time, I will discuss where the cases might go from here.
Ken Alex