Author: Luke A. Wake
At the behest of Pacific Legal Foundation, and a number of energy companies who have been sued for their contributions to the global problem of climate change, the Supreme Court has granted certiorari in American Electric Power Co. v. Connecticut. That case is one of several pending in the federal courts dealing with the question of whether courts may hold energy companies liable for their emissions under common law tort doctrines. PLF argued that the Supreme Court should hear this case to resolve the question of standing, over which the federal circuits are split, and because the issues raised in this case are of nationwide importance.
This suits seeks to hold a handful of selectively chosen defendants liable for their de minimis and undifferentiated contributions to the collective emissions of all humanity. We argued that such selective prosecution of common law suits may also violate the political questions doctrine. In sum, federal courts cannot decide cases if that would require the exercise of political judgement, but that is exactly what the plaintiffs have asked the courts to do.
It is evident that litigants have begun advancing these suits precisely because they are frustrated that Congress has yet to take definitive action to address the global warming issue. Instead they seek to establish our national global warming policy in courts. But our courts are simply not policy-making institutions. In our constitutional system of governance, such decisions are left to our elected representatives.