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Southwestern Law School

Monday, September 20, 2010

Guest Blogger Donald Gifford on "No 'Ordinary Tort' — Climate Change Tort Actions and the Supreme Court"

Today's guest blogger is Professor Donald G. Gifford, the Edward M. Robinson Research Professor of Law at the University of Maryland School of Law.

No “Ordinary Tort”—Climate Change Tort Actions and the Supreme Court


The U.S. Supreme Court rarely grants certiorari in common law tort cases.  Possibly an exception  is imminent.  It was not surprising that the defendant-utility companies would petition the Supreme Court to accept certiorari[1] in Connecticut v. American Electric Power Co.[2] in which plaintiffs sued six electric utility companies seeking abatement of emissions from the defendants’ fossil-fuel-powered plants that allegedly contributed to global warming.  The Court of Appeals for the Second Circuit allowed the public nuisance action to proceed and in the process held that the

(1) political question doctrine does not bar adjudication of the claims;

(2) plaintiffs—eight states, the City of New York, and several land trusts—all have standing to pursue their claims; and

(3) plaintiffs have properly stated claims under the federal common law of nuisance.


What perhaps is surprising is that the Obama administration recently filed a brief urging the Court to take the case and reverse the Second Circuit,[3] in the process infuriating many in the environmental law community. Admittedly, the Solicitor General urged the Court to reverse the Second Circuit’s decision because of a lack of “prudential” standing and displacement of the common law claims by the EPA’s regulation under the Clean Air Act, grounds narrower than those proffered by the defendants.


In the long term, and viewed from the environmental law perspective, the legal issues raised by the current round of public nuisance actions against greenhouse gas emitters may not prove terribly consequential.  The EPA recently began a process intended to lead to its regulation of greenhouse gas emissions from fixed sources (e.g., industrial plants).   If such regulation occurs, it seems likely that courts facing the same issue in similar suits in the future will hold that common law public nuisance suits are displaced by this regulation under the Clean Air Act.[4]


To the torts scholar, however, the defendants’ cert petition and the Obama administration’s at least somewhat supportive reaction pose fascinating issues.  Both standing and political question doctrine issues seem strangely out of place in a tort action.  Traditionally the standing issue has been raised when a litigant challenges the action or inaction of the political branches of government on the basis of a statutory or constitutional claim.  It is generally thought that in tort litigation, the issue of standing collapses into the substantive cause of action.  Obviously, plaintiffs must allege and prove injury-in-fact and causation, essential requirements of standing, as part of their substantive causes of action.  In a parallel vein, a party raising the political question doctrine as a challenge to justiciability typically argues that the U.S. Constitution allocates responsibility for the pending issue to one of the political branches of government—either the executive or the legislative branch—and not to the courts.  Yet Article III specifically delegates “cases” and “controversies” to the judicial branch.


What is going on?  Are the defendants merely advancing unprincipled arguments to avoid the huge costs of abating their contributions to global climate change?  Is the Administration simply misguided?  I do not think so.


Contrary to the Second Circuit’s conclusion, the public nuisance action seeking to abate defendants’ contributions to global climate change is not “an ordinary tort suit.”[5]  The climate change litigation fits into a new genre of tort litigation, which I have called “public interest tort actions,”[6] that includes government tort actions against gun manufacturers and lead pigment manufacturers a decade ago.  Public interest tort litigation seeks to use the tort system to impose comprehensive judicial regulation when plaintiffs believe that either the political branches of government have refused to regulate when they should have acted or the government’s actions fall short of a minimally adequate response.  The plaintiffs are usually collective entities, such as state or municipal governments or class actions.  The substantive claim represents a collective harm, usually public nuisance.


Public interest tort litigation, unlike ordinary torts, raises serious justiciability concerns whether analyzed under either standing or the political question doctrine.  Laurence Tribe and his two co-authors recently argued that the Supreme Court should use the standing doctrine “to prevent some of the most audacious judicial sallies into . . . the climate change case, where plaintiffs assert only undifferentiated and generalized causal chains from their chosen defendants to their alleged injuries.”[7]  The appropriate role of common law courts is to adjudicate circumscribed, bounded disputes, not society-wide or even worldwide problems.


Regarding the political question doctrine, in the leading case of Baker v. Carr,[8] the Supreme Court identified six factors that individually or in combination with one another might lead a court to conclude that an issue poses a political question and therefore is non-justiciable.  Here, two of these factors are most relevant:  “a lack of judicially discoverable and manageable standards for resolving it;” and “the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion . . . ”[9]


When it comes to global climate change, as one environmental group has advertised, each of us is a plaintiff.  Left unsaid is the reality that each of us who drives a gasoline-powered or hybrid vehicle or who heats her home with fossil fuels is also, at least theoretically, a defendant.   No judicially discoverable and manageable standards exist to determine whether any particular defendant’s contributions to global climate change exceed reasonable levels and what limits courts should impose. Determining the appropriate mixture of   regulatory levels across all greenhouse-gas emitters and industries would require weighing the relative societal costs and benefits of reducing emissions from each of the literally hundreds of millions (in the U.S.) or billions (worldwide) of fossil fuel consumers.   These are not the kind of decisions that a common law court is capable of making.   Climate change is the society-wide—indeed worldwide—type of harm that our constitutional structures anticipated the political branches would handle.  Solving the problem requires policy decisions appropriately made by political institutions deriving their legitimacy from something other than a court’s reasoned elaboration from precedents that bear little or no resemblance to the complex meteorological, ecological, and economic issues inherent in climate change litigation. 


In the past, public nuisance actions have proved to be an important weapon in efforts to prevent environmental degradation.  Using public nuisance to tackle climate change, however, is going too far.  Most of us came to intellectual maturity during a time in which the Supreme Court generally stayed out of tort actions.  We are inclined to see intervention from today’s Supreme Court, typically regarded as conservative and pro-business, as an illegitimate intrusion into our world of common law courts.  But, before reaching that conclusion, we should carefully consider whether global climate change public nuisance litigation is in fact merely an “ordinary tort” or whether climate change litigation is a well-intentioned but fundamentally flawed circumvention of our constitutional structure that asks the trial court to do the impossible.


- Donald G. Gifford

Edward M. Robinson Research Professor of Law

University of Maryland School of Law    

[1] Connecticut v. Am. Elec. Power Co., 582 F. 3d 309 (2d Cir. 2009), petition for cert. filed, 79 U.S.L.W. 3092 (U.S. Aug. 2, 2010)  (No. 10-174).

[2] 582 F. 3d 309 (2d Cir. 2009).

[3] Brief of the Tennessee Valley Authority in Support of Petitioners’ Petition for a Writ of Certiorari, Am. Elec. Power Co. v. Connecticut,  582 F. 3d 309 (2d Cir. 2009), U.S. Supreme Court No. 10-174 (hereinafter “TVA Brief”), brief docketed Aug. 24, 2010,  available at 

[4] TVA Brief, 24 – 32.

[5] Am. Elec. Power Co., 582 F. 3d at 331.

[6] Donald G. Gifford, Climate Change and the Public Law Model of Torts: Reinvigorating Judicial Restraint Doctrines, 62 S.C. L. Rev. __ (2011), available at = 1674443.

[7] Laurence H. Tribe, Joshua D. Branson & Tristan L. Duncan, Too Hot for the Courts to Handle: Fuel Temperatures, Global Warming, and the Political Question Doctrine 24 (Washington Legal Foundation, Critical

Legal Issues Working Paper Series, No. 169, 2010), available at 

[8] 369 U. S. 186 (1962)

[9]  Id. at 210 – 15.

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