The right issue, the wrong branch: Arguments against adjudicating climate change nuisance claims

Abstract

Climate change is probably today's greatest global environmental threat, posing dire ecological, economic, and humanitarian consequences. In the absence of a comprehensive regulatory scheme to address the problem, some aggrieved Americans have sought relief from climate-related injuries by suing significant emitters of green-house gases under a public nuisance theory. Federal district courts have dismissed four such claims, with each court relying at least in part on the political question doctrine of nonjusticiability. However, one circuit court of appeals has reversed to date, finding that the common law cognizes such claims and that the judiciary is competent and compelled to adjudicate them. This Note argues that courts should dismiss climate-related public nuisance suits-at least those that seek injunctive caps on greenhouse gas emissions. Focusing on Connecticut v. American Electric Power Co. as a case in point, this Note concludes that such claims should be deemed nonjusticiable political questions or, alternatively, should be dismissed for lack of redressability. As an afterthought, the Note also briefly acknowledges some problems that could arise on the merits of this category of claims, along with policy concerns about permitting such litigation.