42 Pages Posted: 26 May 2008
Date Written: May 23, 2008
Recently states and individuals have turned to federal common law causes of action to provide equitable and legal relief for climate change. Thus far, every federal court to consider these claims has held that they raise non-justiciable political questions consigned to the coordinate branches. These courts reason that federal courts lack jurisdiction over climate cases because climate change is textually committed elsewhere, there are no judicial standards to apply, and the elected branches have yet to render an initial policy determination about the subject. This article concludes that these courts either misapply or misapprehend the doctrine. It concedes that federal common law is not the optimal or only legal response to climate change. Yet it maintains that the political question doctrine is a false basis for dismissing climate cases that invoke these causes of action. The Constitution does not commit climate change to Congress or the executive. Federal common law provides ample and long-applied standards in cases involving disparate transboundary pollution. The elected branches have made initial policy determinations about climate change policies. Furthermore, there is good reason to question both the doctrine's jurisprudential bases and whether its framers meant it to be applied to federal common law in general, and climate cases in particular. Regardless, courts have rejected use of the doctrine to dismiss analogous claims for redress based on federal common law. The political question doctrine does not prevent courts from entering the climate change thicket.
Keywords: climate change, constitutional law, political question doctrine, environmental law, pollution
JEL Classification: K32, K1
Suggested Citation: Suggested Citation
May, James, Climate Change, Constitutional Consignment, and the Political Question Doctrine (May 23, 2008). Denver University Law Review, Vol. 85, No. 4, 2008; Widener Law School Legal Studies Research Paper No. 08-59. Available at SSRN: https://ssrn.com/abstract=1136914