Tort-Based Climate Change Litigation and the Political Question Doctrine
![handle is hein.journals/jluenvl24 and id is 81 raw text is: TORT-BASED CLIMATE CHANGE LITIGATION AND THE
POLITICAL QUESTION DOCTRINE
AMELIA THORPE*
I. INTRODUCTION ................................................................ 79
II. THE THIRD BAKER TEST AND
REGULATION THROUGH LITIGATION ............................... 86
III. THE FIRST AND SECOND BAKER TESTS
AND TORT DOCTRINE ....................................................... 96
IV . CONCLUSION .................................................................... 104
I. INTRODUCTION
The political question doctrine has been revived in tort-based
climate change cases. Four actions have now been heard in U.S.
courts seeking relief for the nuisance of greenhouse gas emissions
leading to global warming, and three have been dismissed as non-
justiciable political questions. With an appeal and a fifth case now
pending, this Article contends that there are strong legal grounds
on which the appellants should succeed in overturning the political
question bar.
In his 1962 opinion for the U.S. Supreme Court in Baker v.
Carr, Justice Brennan summarized the political question doctrine.'
Noting that the attributes of the doctrine in various settings, di-
verge, combine, appear, and disappear in seeming disorderliness,
Justice Brennan reviewed the cases in which it had been consi-
dered.2 From this, he derived six formulations that, if inextrica-
ble from the case, make dismissal on the basis of the political
question doctrine appropriate:3
[1] a textually demonstrable constitutional commit-
ment of the issue to a coordinate political depart-
ment; or [2] a lack of judicially discoverable and
manageable standards for resolving it; or [3] the im-
possibility of deciding without an initial policy de-
. Programs Director, Environmental Defender's Office, Australia. LL.M. (Harv.); B.
Juris. (Hons.) (Oxon.); B. Pol. St. (Ions.) (Murd.); B. Arch. (Hons.) (W. Aust.). Thank you to
Professor Jody Freeman, Adam Shinar, and Lee Stickells for their valuable comments on
this Article.
1. Baker v. Carr, 369 U.S. 186 (1962). After discussing the doctrine, Justice Brennan
found that it did not apply to the case before the Court; allegations that a state apportion-
ment statute violated the Equal Protection Clause were found to be justiciable. Id. at 228-32.
2. Id. at 210.
3. Id. at 217.](ViewImageLocal?handle=hein.journals/jluenvl24&div=6&collection=&method=preview&ext=.png&size=3)
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Tort-Based Climate Change Litigation and the Political Question Doctrine
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