The Political Question Doctrine
The political question doctrine is primarily a function of the separation of powers; it does not mean that a court abstains from deciding politically charged cases but only abstains from those cases where a judicial decision would inappropriately interfere in the business of the other branches of government. Every district court considering the political question doctrine in this context has found that these cases would require balancing environmental, economic, foreign policy, and national security interests essentially beyond the purview of the courts.
Courts rely on Baker v. Carr, 369 U.S. 186 (1962), in which the Supreme Court announced six factors for analyzing a case under the political question doctrine, focused generally on whether there is a textually demonstrable constitutional commitment of the issue to another branch; whether judicial standards exist to resolve the question or the court must make an initial policy determination of a kind clearly for nonjudicial discretion; or whether the court’s decision would conflict with decisions by the other branches of government in areas such as foreign relations, war, and so forth.
In what may prove to be the most controversial part of its opinion, the Fifth Circuit wrote that the Baker factors were merely "interpretive guides" that a court could use if a party moving to dismiss under the "political question" doctrine identified a constitutional provision or federal law that arguably commits a material issue in the case exclusively to a political branch. Because defendants could not identify any federal law or provision of the Constitution that committed the issue of climate change to Congress or the executive branch, the Fifth Circuit held that plaintiffs’ claims were clearly justiciable. To bulletproof its decision, however, the Fifth Circuit devoted a rather cursory paragraph to the other Baker factors, reasoning that because the case before it involved only state law claims and a request for money damages, Mississippi’s tort rules would provide manageable standards with which to decide the case.
What’s Next?
Resolution of the Comer and AEP cases through en banc rehearings (where all judges of a court, rather than just a panel of them, will hear a case) or successful certiorari (request for reexamination of the actions of a lower court) to the Supreme Court will take months or perhaps years. In the meantime, the Fifth Circuit’s reasoning, if embraced by other courts, could make it difficult for defendants to attack these suits on a motion to dismiss. The panel’s treatment of Massachusetts v. EPA could establish a template for pleading injury from GHG emissions that defendants will see repeated over and over again, and the Fifth Circuit’s interpretation of the "political question" doctrine could foreclose that defense strategy under the status quo (that is, in the absence of federal climate change legislation, which might change the analysis). Pass the sandbag.
—Tracy D. Hester (tracy.hester@bgllp.com) is a partner and Matthew J. Armstrong (matt.armstrong@bgllp.com) is an associate in Bracewell & Giuliani LLP’s Environmental Strategies Group.
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