Constitutional Climate Change in the Courts

We have entered an interesting constitutional era, one in which a rising sea level will help to buoy a rising tide of climate litigation, the leading edge of which lies constitutional jurisprudence as applied to the political question doctrine, preemption, dormant commerce and compact clauses and standing. In 2007 most of it involves either state action (e.g., to regulate greenhouse gas emissions from new motor vehicles or require climate friendly energy production), or state causes of action (e.g., public or private nuisance). In 2007, the trend was toward dismissing climate-tort cases as presenting political questions. Notably, in Mass. v. EPA, the court declined to enter political question arguments, finding that federal law gave the EPA the authority to regulate greenhouse gas emissions. Preemption defenses were less successful, although common law causes of action for climate change are likely to survive preemption challenges. Standing remains a considerable obstacle to climate litigation, although states have been granted a softer standard under the premise of “special solicitude.”