Washington & Lee 3L Nathan Howe recently had his article, The Political Question Doctrine’s Role in Climate Change Nuisance Litigation: Are Power Utilities the First of Many Casualties published in the Environmental Law Institute‘s monthly Reporter.
The article provides a case study of two recent decisions from the Second and Fifth Circuits, American Electric Power v. Connecticut and Comer v. Murphy Oil USA, which have permitted climate change litigation suits to progress to the discovery stage that the lower courts had barred through use of the political question doctrine. The courts in these decisions reviewed the political question doctrine’s applicability, and each court has created novel approaches to the 6-prong Baker v. Carr test as applied to climate change nuisance actions, reversing the lower court decisions. In evaluating these new tests, the article draws comparisons to both historical and modern interpretations of the doctrine since its original conception in Marbury v. Madison.
As a matter of policy, the article further investigates the desirability of regulation through litigation during the period before political action by the Executive or Legislative branches, and addresses one of the major criticisms of this approach, namely, that judges are not politically accountable. Ultimately, the article promotes the view that the courts were correct to restrain the political question doctrine in these types of cases, and as a final topic, discusses some options for heavy-emitting power utilities who may now be subject to litigation.
Many congratulations to Nathan.
