Professor Jim May addressed faculty and staff on February 21st about some of the constitutional issues raised by attempts to litigate global climate change in federal courts. He noted that no federal global climate change legislation that limits greenhouse gas emissions have been passed, and the Environmental Protection Agency has made no effort to regulate such emissions either. This lack of action by elected officials has led to several federal court cases where the courts have refused to set environmental standards in the absence of government standards.
Professor May explained the political question doctrine and examined the history behind it. The doctrine asserts the federal judiciary's desire to avoid ruling on unresolved legislative issues better solved by other branches of the federal government. Some judges believe that such ‘political questions’ should be resolved through the political process where decision makers can be held politically accountable.
Moving on to how the political question doctrine had influenced climate change cases before the federal court, Professor May discussed four cases. In two suits brought by states, California v. General Motors Corp __ F. Supp. 2d __, 2007 WL 2726871 (N.D. Cal. 2007), appeal docketed, 9th Cir., 2007, and Connecticut v. American Electric Power (2d Cir. 2006), the federal courts dismissed the cases because there needed to be an initial formation of policy by the legislative or executive branches of the government and because of the absence of judicially manageable standards, two of the key criteria for the assertion of the political question doctrine. Professor May also discussed two other cases brought by individuals in the wake of Hurricane Katrina. In the first case, the plaintiff argued that companies with fuel lines and other environmentally hazardous materials in the area exacerbated the effects of Hurricane Katrina. The court ruled that this case did not fall under the political doctrine jurisdiction, but the second case, in which the plaintiff argued that global warming in the Gulf of Mexico made the effects of Hurricane Katrina worse, did fall under it.
Elected officials should set policies so that unelected judges are not forced to decide matters of policy, but in the absence of such action, courts may have responsibility. Professor May argued that the problem with the federal decisions he described is that they turn federalism on its head because “States lose the ability to even make their case” as a result of the political question doctrine. He further noted that because the political question doctrine is not textually grounded in the constitution, it should be abandoned, particularly in the important area of climate change where no other government entity has assumed responsibility.