Academic journal article Duke Environmental Law & Policy Forum

"Political Questions": An Invasive Species Infecting the Courts

Academic journal article Duke Environmental Law & Policy Forum

"Political Questions": An Invasive Species Infecting the Courts

Article excerpt


Recent court rulings have distorted the hoary "political questions" doctrine into an excuse to evade the courts' responsibility to decide serious justiciable issues in environmental law. Unless overturned, these decisions not to decide important legal questions will carve out an unwarranted escape hatch and thwart effective judicial redress for environmental harms. And, ironically, the weightier the legal issue, the more likely these courts are to dodge it.

Last year, the federal district court in People of California v. General Motors Corp. (GMC) dismissed a public nuisance suit seeking damages from the major auto manufacturers for injuries to the state's environment stemming from climate change. (1) These asserted injuries included severe loss of water supply due to melting snow pack, increased risk of flooding, beach erosion, and forest fires. (2) The court concluded that this public nuisance action, no different from hundreds of others brought by states except for the higher stakes involved, was a political question and therefore beyond the court's jurisdiction, since it "would have an inextricable effect on interstate commerce and foreign policy--issues constitutionally committed to the political branches of government," (3) and because there was, in the court's view, no "manageable method of discerning the entities that are creating and contributing to the alleged nuisance." (4)

Two years earlier, another federal court rebuffed a suit by Connecticut, New York, and several other states seeking to enjoin, as a public nuisance, carbon dioxide (C[O.sub.2]) emissions from the nation's five largest electric utilities, again citing their impact on global warming. (5) In Connecticut v. American Electric Power Co. (AEP) the court likewise found this to be a political question for similar reasons. (6)

Yet other federal courts have more sensibly rejected political question defenses. These courts have sustained actions for damages in a variety of environmental areas ranging from injuries from Hurricane Katrina (7) to contamination of water supply caused by methyl tertiary butyl ether (MTBE), a pollutant added to gasoline to help comply with air quality standards. (8)


The political question doctrine, or the reluctance of federal courts to decide political questions, has clear and fixed limits. Its genesis lies in Chief Justice Marshall's observation in Marbury v. Madison that "where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, ... their acts are only politically examinable." (9) But Marshall went on to rule for the Court that the government's legal duty to furnish Marbury's promised commission to serve as justice of the peace was not such a situation, that he had a "right to the commission; a refusal to deliver which is a plain violation of that right, for which the laws of this country afford him a remedy." (10) This decision, establishing the power of judicial review, of course veered off to hold the provision of the Judiciary Act of 1789 empowering the Supreme Court to issue writs of mandamus in its original jurisdiction cases to be unconstitutional. (11) The political question doctrine--actually grounded in the courts' reluctance to invade the constitutionally allocated powers of the executive and legislative branches of government (12)--thereafter assumed a carefully circumscribed life of its own. (13)

In another salient decision closer to our own day, Baker v. Carr, the Supreme Court ruled that claims that states' failure to reapportion legislative districts over decades, resulting in gross inequality of representation due to the enormously varied population of districts, were not political questions. (14) In so holding, Justice Brennan, writing for the Court, set forth the modern test for nonjusticiable political questions: are they issues "decided, or to be decided, by a political branch of government coequal with this Court," or leading to "embarrassment of our government abroad," or "policy determinations for which judicially manageable standards are lacking"? …

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