The appeal of the dismissal of the Kivalina climate change case has drawn fire from several amicus curiae, but some of the most notable criticism comes from Richard Faulk and John Gray in their amicus brief for The American Chemistry Council, the American Coatings Association, and several other industry organizations. In their brief, Faulk and Gray illustrate how the “standardless” liability for public nuisance sought by the plaintiffs creates a non-justiciable “political question” – and justifies the district court’s dismissal of the plaintiffs’ claim.
In their groundbreaking argument, Faulk and Gray rely upon an important article by Professor James Henderson of Cornell University Law School, which recognizes that “aggregative” torts such as the one alleged by the Kivalina plaintiffs are essentially “lawless” because they are not constrained by rational legal standards. See James A. Henderson, Jr., The Lawlessness of Aggregative Torts, 34 HOFSTRA L. REV. 329, 330 (2005).
Faulk and Gray then substantiate and demonstrate the strong “overlap” between the importance of guiding legal principles and the clear “overlap” between overly broad public nuisance claims and “political questions” over which the judiciary has no jurisdiction:
“There is plainly an overlap between this jurisprudential principle and the “political question” doctrine. Although these concepts are inextricably linked, their conjunction has been inexplicably overlooked. Just as courts have traditionally resisted invitations to expand public nuisance liability in the absence of clear boundaries and guiding principles, courts also must resist deciding political question controversies where they cannot devise definitive standards and rules for their adjudication. Each principle informs courts when advocates invite creative excursions, and in both contexts, respect for the legislative and executive spheres, and the constitutional limits on judicial power, is critical. History’s experience with public nuisance as a tort traditionally circumscribed by geographic limits and caused by identifiable actors, coupled with the pronounced concerns of wise legal scholars and courts regarding the dangers of entertaining controversies without guiding adjudicative principles, demonstrates the present impossibility of rendering judgments in climate change cases that are “principled, rational, and based upon reasoned distinctions.” Kivalina amicus brief, at 20.
Kivalina is one of three major public nuisance cases involving climate change liability winding their way through the federal appellate courts. In Connecticut v. AEP, a Second Circuit panel reversed a district court’s dismissal and decided that public entities’ claims for equitable abatement could proceed. A petition for certiorari is expected to be filed shortly. In Comer v. Murphy Oil, a Fifth Circuit panel also reversed an earlier dismissal, but because of lack of a quorum, the en banc court dismissed the appeal before a full review could be completed. Plaintiffs now have a right to seek certiorari. The convergence of these difficult and challenging cases suggests that the United States Supreme Court may soon have an opportunity to resolve the question of climate change liability under public nuisance.