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State of Connecticut v. American Electric Power Company Inc.

September 21, 2009

STATE OF CONNECTICUT, STATE OF NEW YORK, PEOPLE OF THE STATE OF CALIFORNIA EX REL. ATTORNEY GENERAL BILL LOCKYER, STATE OF IOWA, STATE OF NEW JERSEY, STATE OF RHODE ISLAND, STATE OF VERMONT, STATE OF WISCONSIN, AND CITY OF NEW YORK, PLAINTIFFS-APPELLANTS,
v.
AMERICAN ELECTRIC POWER COMPANY INC., AMERICAN ELECTRIC POWER SERVICE CORPORATION, SOUTHERN COMPANY, TENNESSEE VALLEY AUTHORITY, XCEL ENERGY, INC., AND CINERGY CORPORATION, DEFENDANTS-APPELLEES.
OPEN SPACE INSTITUTE, INC., OPEN SPACE CONSERVANCY, INC., AUDUBON SOCIETY OF NEW HAMPSHIRE, PLAINTIFFS-APPELLANTS,
v.
AMERICAN ELECTRIC POWER COMPANY INC., AMERICAN ELECTRIC POWER SERVICE CORPORATION, SOUTHERN COMPANY, TENNESSEE VALLEY AUTHORITY, XCEL ENERGY, INC., AND CINERGY CORPORATION, DEFENDANTS-APPELLEES.



SYLLABUS BY THE COURT

Appeal from a judgment of the United States District Court for the Southern District of New York (Preska, J.) dismissing Plaintiffs-Appellants' federal common law of nuisance claims as non-justiciable under the political question doctrine. We hold that: (1) Plaintiffs-Appellants' claims do not present non-justiciable political questions; (2) Plaintiffs-Appellants have standing to bring their claims; (3) Plaintiffs-Appellants state claims under the federal common law of nuisance; (4) Plaintiffs-Appellants' claims are not displaced; and (5) the discretionary function exception does not provide Defendant-Appellee Tennessee Valley Authority with immunity from suit. Accordingly, we VACATE the judgment of the district court and REMAND for further proceedings.

The opinion of the court was delivered by: Peter W. Hall, Circuit Judge

Argued: June 7, 2006

BEFORE: McLAUGHLIN and HALL, Circuit Judges.*fn1

In 2004, two groups of Plaintiffs, one consisting of eight States and New York City, and the other consisting of three land trusts (collectively "Plaintiffs"), separately sued the same six electric power corporations that own and operate fossil-fuel-fired power plants in twenty states (collectively "Defendants"), seeking abatement of Defendants' ongoing contributions to the public nuisance of global warming. Plaintiffs claim that global warming, to which Defendants contribute as the "five largest emitters of carbon dioxide in the United States and... among the largest in the world," Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 268 (S.D.N.Y. 2005), by emitting 650 million tons per year of carbon dioxide, is causing and will continue to cause serious harms affecting human health and natural resources. They explain that carbon dioxide acts as a greenhouse gas that traps heat in the earth's atmosphere, and that as a result of this trapped heat, the earth's temperature has risen over the years and will continue to rise in the future. Pointing to a "clear scientific consensus" that global warming has already begun to alter the natural world, Plaintiffs predict that it "will accelerate over the coming decades unless action is taken to reduce emissions of carbon dioxide."

Plaintiffs brought these actions under the federal common law of nuisance or, in the alternative, state nuisance law, to force Defendants to cap and then reduce their carbon dioxide emissions. Defendants moved to dismiss on a number of grounds. The district court held that Plaintiffs' claims presented a non-justiciable political question and dismissed the complaints. See id.

On appeal, Plaintiffs argue that the political question doctrine does not bar adjudication of their claims; that they have standing to assert their claims; that they have properly stated claims under the federal common law of nuisance; and that their claims are not displaced by federal statutes. Defendants respond that the district court's judgment should be upheld, either because the complaints present non-justiciable political questions or on a number of alternate grounds: lack of standing; failure to state a claim; and displacement of federal common law. In addition, Defendant Tennessee Valley Authority ("TVA") asserts that the complaints should be dismissed against it on the basis of the discretionary function exception.

We hold that the district court erred in dismissing the complaints on political question grounds; that all of Plaintiffs have standing; that the federal common law of nuisance governs their claims; that Plaintiffs have stated claims under the federal common law of nuisance; that their claims are not displaced; and that TVA's alternate grounds for dismissal are without merit. We therefore vacate the judgment of the district court and remand for further proceedings.

Given the number of issues involved, we set out the following table of contents.

Background

I. The States' Complaint........................................................................................... 7

II. The Land Trusts' Complaint.................................................................................. 10

III. The District Court's Amended Opinion and Order................................................ 12

Discussion

I. Standard of Review................................................................................................. 14

II. The Political Question Doctrine.............................................................................. 15

A. Overview of the Political Question Doctrine............................................... 15

B. Application of the Baker Factors................................................................. 20

1. The First Baker Factor.................................................................... 20

2. The Second Baker Factor................................................................ 24

3. The Third Baker Factor................................................................... 31

4. The Fourth, Fifth, and Sixth Baker Factors..................................... 33

III. Standing.................................................................................................................. 36

A. The States' Parens Patriae Standing.......................................................... 38

1. Background..................................................................................... 38

2. Parens Patriae as a Species of Article III Standing........................ 41

3. Effect of Massachusetts v. EPA...................................................... 43

4. States Allege Parens Patriae Standing............................................ 46

B. The States' and the Trusts' Article III Proprietary Standing....................... 47

1. Have Plaintiffs Sufficiently Alleged Injury-in-Fact?....................... 49

a. Current Injury...................................................................... 51

b. Future Injury........................................................................ 52

2. Causation......................................................................................... 57

3. Redressability.................................................................................. 61

IV Stating a Claim under the Federal Common Law of Nuisance............................... 65

A. Standard of Review...................................................................................... 65

B. The Federal Common Law of Nuisance and the Restatement's Definition of Public Nuisance........................................ 65

C. Have the States Stated a Claim under the Federal Common Law of Nuisance?............................................................ 70

1. Applying the Public Nuisance Definition to the States................... 70

2. Defendants' Arguments................................................................... 71

a. Constitutional Necessity...................................................... 71

b. The Character of the Alleged Nuisance............................... 74

D. May Non-State Parties Sue under the Federal Common Law of Nuisance? Analysis of Federal Common Law of Nuisance Case Law........ 80

1. Federal Common Law of Nuisance Case Law Concerning Non-State Parties............................................................................. 81

a The Federal Government and Municipalities as Plaintiffs... 82

b. Private Plaintiffs.................................................................. 85

c. Whether Municipalities and Private Parties Can State a Claim under the Federal Common Law of Nuisance-

An Examination of Milwaukee I's Footnote 6..................... 90

2. The Restatement (Second) of Torts's Requirements for Maintaining an Action for Public Nuisance under § 821C.................................................................................... 93

a. Can New York City Maintain a Public Nuisance Suit under § 821C?...................................................................... 94

b. Can the Trusts Maintain a Public Nuisance Suit under § 821C?...................................................................... 95

3. Have New York City and the Trusts Stated a Claim for Public Nuisance under § 821B?....................................................... 99

V. Displacement of Plaintiffs' Federal Common Law Claim....................................... 102

A. The Displacement Standard......................................................................... 102

B. Analysis........................................................................................................ 108

1. The Clean Air Act............................................................................ 109

a. Overview: the Clean Air Act............................................... 109

b. Analysis: Whether the Clean Air Act Displaces Federal Common Law in the Area of Greenhouse Gas Emissions from Stationary Sources...................................................... 113

2. All Legislation "on the Subject" of Greenhouse Gases.................. 119

a. Overview: the Legislative Landscape.................................. 119

b. Analysis: All Statutes "Touching" on Greenhouse Gases... 126

C. Displacement on Foreign Policy Grounds................................................... 130

VI. Defendant Tennessee Valley Authority's Separate Arguments............................... 131

A. Background.................................................................................................. 131

B. Political Question Arguments...................................................................... 133

C. The Discretionary Function Exception........................................................ 135

VII. State Law Claims..................................................................................................... 138

Conclusion............................................................................................................................ 139

BACKGROUND

I. The States' Complaint

In July 2004, eight States-California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin-and the City of New York (generally, hereinafter, "the States") filed a complaint against Defendants American Electric Power Co., Inc., American Electric Power Service Corp., Southern Company, TVA, Xcel Energy, and Cinergy Corp.*fn2 The complaint sought "abatement of defendants' ongoing contributions to a public nuisance" under federal common law, or in the alternative, under state law. Specifically, the States assert that Defendants are "substantial contributors to elevated levels of carbon dioxide and global warming," as their annual emissions comprise "approximately one quarter of the U.S. electric power sector's carbon dioxide emissions and approximately ten percent of all carbon dioxide emissions from human activities in the United States." Moreover, the rate of increase of emissions from the U.S. electric power sector is expected to rise "significantly faster than the projected growth rate of emissions from the economy as a whole" from now until the year 2025. At the same time, the States contend that Defendants have "practical, feasible and economically viable options for reducing emissions without significantly increasing the cost of electricity for their customers."

The complaint cites reports from the Intergovernmental Panel on Climate Change and the U.S. National Academy of Sciences to support the States' claims of a causal link between heightened greenhouse gas concentrations and global warming, explaining that carbon dioxide emissions have persisted in the atmosphere for "several centuries and thus have a lasting effect on climate." The States posit a proportional relationship between carbon dioxide emissions and injury: "The greater the emissions, the greater and faster the temperature change will be, with greater resulting injuries. The lower the level of emissions, the smaller and slower the total temperature change will be, with lesser injuries." The States caution that the earth's climate "can undergo an abrupt and dramatic change when a 'radiative forcing agent' causes the Earth's climate to reach a tipping point." Carbon dioxide emissions constitute such a radiative forcing agent due to its heat-trapping effects, and therefore, as stated by the National Academy of Sciences, the unrestrained and ever-increasing emissions of greenhouse gases from fossil fuel combustion increases the risk of an abrupt and catastrophic change in the Earth's climate when a certain, unknown, tipping point of radiative forcing is reached. An abrupt change in the Earth's climate can transpire in a period as short as ten years. Defendants' emission of millions of tons of carbon dioxide each year contribute to this risk of an abrupt change in climate due to global warming.

As a result, the States predict that these changes will have substantial adverse impacts on their environments, residents, and property, and that it will cost billions of dollars to respond to these problems.

The complaint details the harms that will befall the States, plaintiff by plaintiff. Not only does the complaint spell out expected future injuries resulting from the increased carbon dioxide emissions and concomitant global warming, but it also highlights current injuries suffered by the States. As an example of global warming having already begun to alter a State's climate, the complaint refers to the reduction of California's mountain snowpack, "the single largest freshwater source, critical to sustaining water to the State's 34 million residents during the half of each year when there is minimal precipitation." The complaint goes on to explain that [d]iminished summer runoff from mountain snow will cause water shortages and disruptions to the interrelated water systems and hydroelectric plants on which the State's residents rely. Flooding will increase in California as a result of the earlier melting. This process of reduced mountain snowpack, earlier melting and associated flooding, and reduced summer streamflows already has begun.

Other current injuries resulting from climate changes that the States allege they have already begun to experience include warmer average temperatures, later fall freezes and earlier spring thaws, and the decrease in average snowfall and duration of snow cover on the ground in New England and California. While the complaint does not articulate the impact of these changes on the States currently, it does discuss the effect of these changes in the context of future injuries.

With regard to future injuries, the complaint categorizes in detail a range of injuries the States expect will befall them within a span of ten to 100 years if global warming is not abated. Among the injuries they predict are: increased illnesses and deaths caused by intensified and prolonged heat waves; increased smog, with a concomitant increase in residents' respiratory problems; significant beach erosion; accelerated sea level rise and the subsequent inundation of coastal land and damage to coastal infrastructure; salinization of marshes and water supplies; lowered Great Lakes water levels, and impaired shipping, recreational use, and hydropower generation; more droughts and floods, resulting in property damage; increased wildfires, particularly in California; and the widespread disruption of ecosystems, which would seriously harm hardwood forests and reduce biodiversity. The States claim that the impact on property, ecology, and public health from these injuries will cause extensive economic harm.

Seeking equitable relief, the States seek to hold Defendants jointly and severally liable for creating, contributing to, or maintaining a public nuisance. They also seek permanently to enjoin each Defendant to abate that nuisance first by capping carbon dioxide emissions and then by reducing emissions by a specified percentage each year for at least ten years.

II. The Land Trusts' Complaint

Also in July 2004, three land trusts ("the Trusts")-the Open Space Institute ("OSI"), the Open Space Conservancy ("OSC"), and the Audubon Society of New Hampshire ("Audubon")-filed a complaint against the same six Defendants named in the States' complaint. The Trusts are "nonprofit land trusts that acquire and maintain ecologically significant and sensitive properties for scientific and educational purposes, and for human use and enjoyment. They own nature sanctuaries, outdoor research laboratories, wildlife preserves, recreation areas, and open space." OSI "was formed to help protect the natural environment by, among other means, preserving open space and open land for recreation, conservation, and resource and wildlife protection. OSI holds and manages interests in real property in order to preserve and enhance those properties' natural and ecological values." OSC, organized and operated to carry out the purposes of OSI, "holds and manages lands, and conservation easements on lands, in order to preserve and enhance those lands' natural and ecological values." It has an inventory of land and conservation easements "with a book value of approximately $56 million." Audubon "owns and preserves more than 6,000 acres of sensitive land" throughout New Hampshire as nature sanctuaries. "Tens of thousands of people" visit the OSC/OSI properties annually, and all of Audubon's properties are open to the public. Their complaint asserts that "[w]hile the global warming to which Defendants contribute injures the public at large, Plaintiffs suffer special injuries, different in degree and kind from injuries to the general public." They then enumerate how the ecological value of specific properties in which they have an interest will be diminished or destroyed by global warming. For example, the Trusts claim that the accelerated sea level rise and coastal storm surges caused by global warming would permanently inundate some of their property, salinizing marshes and destroying wildlife habitat. Increased smog attributed to global warming would "diminish or destroy the health of the forests that are central ecological features of [their] properties" and cause the loss or decline of other species inhabiting those properties.

The Trusts also base their claims on the federal common law of nuisance or, in the alternative, "the statutory and/or common law of private and public nuisance of each of the states where [Defendants] own, manage, direct, and/or operate fossil fuel-fired electric generating facilities." They assert that reductions in Defendants' "massive carbon dioxide emissions will reduce all injuries and risks of injuries to the public, and all special injuries to Plaintiffs, from global warming." Accordingly, the Trusts seek to abate Defendants' "ongoing contributions to global warming."

In many ways, the Trusts' complaint mirrors that of the States. It explains the heat-trapping effects of carbon dioxide, identifies the significant emissions by Defendants, outlines the current and projected impact of global warming, and posits that a reduction of emissions would prevent, diminish, or delay the harmful effects of global warming. The principal difference between the complaints lies in the nature of the injury alleged, as the Trusts' complaint details the special injuries to their property interests that would occur as a result of global warming. The Trusts predict that global warming would "diminish or destroy the particular ecological and aesthetic values that caused [them] to acquire, and cause them to maintain, the properties they hold in trust" and would "interfer[e] with their efforts to preserve ecologically significant and sensitive land for scientific and educational purposes, and for human use and enjoyment."

III. The District Court's Amended Opinion and Order

In district court, Defendants moved to dismiss both complaints on several grounds. They asserted that Plaintiffs failed to state a claim because: "(1) there is no recognized federal common law cause of action to abate greenhouse gas emissions that allegedly contribute to global warming; (2) separation of powers principles preclude this Court from adjudicating these actions; and (3) Congress had displaced any federal common law cause of action to address the issue of global warming." Am. Elec. Power Co., 406 F. Supp. 2d at 270. They also contended that the court lacked jurisdiction over Plaintiffs' claims because: "(1) Plaintiffs do not have standing to sue on account of global warming and (2) Plaintiffs' failure to state a claim under federal law divests the court of § 1331 jurisdiction." Id. In addition, four of the defendants moved to dismiss for lack of personal jurisdiction and TVA moved to dismiss on the ground of the discretionary function exception. Id.

In an Amended Opinion and Order, the district court dismissed the complaints, interpreting Defendants' argument that "separation-of-powers principles foreclosed recognition of the unprecedented 'nuisance' action plaintiffs assert" as an argument that the case raised a non-justiciable political question. Id. at 271. Drawing on Baker v. Carr, 369 U.S. 186, 198 (1962), in which the Supreme Court enumerated six factors that may indicate the existence of a non-justiciable political question, the district court stated that "[a]lthough several of these [Baker v. Carr] indicia have formed the basis for finding that Plaintiffs raise a non-justiciable political question, the third indicator is particularly pertinent to this case." Am. Elec. Power Co., 406 F. Supp. 2d at 271-72. The court based its conclusion that the case was non-justiciable solely on that third Baker factor, finding that Plaintiffs' causes of action were "'impossib[le] [to] decid[e] without an initial policy determination of a kind clearly for nonjudicial discretion.'" Id. (quoting Vieth v. Jubelirer, 541 U.S. 267, 278 (2004)). In the court's view, this factor counseled in favor of dismissal because it would not be able to balance those "interests seeking strict schemes to reduce pollution rapidly to eliminate its social costs" against "interests advancing the economic concern that strict schemes [will] retard industrial development with attendant social costs." Id. (quoting Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 847 (1984) (internal quotation marks omitted)). The district court concluded that balancing those interests required an "'initial policy determination' first having been made by the elected branches to which our system commits such policy decisions, viz., Congress and the President." Id.

In addition, the district court rejected Plaintiffs' arguments that they were presenting "simple nuisance claim[s] of the kind courts have adjudicated in the past," observing that none of the other public nuisance cases involving pollution "touched on so many areas of national and international policy." Id. According to the district court, the broad reach of the issues presented revealed the "transcendently legislative nature of this litigation." Id. If it were to grant the relief sought by Plaintiffs-capping carbon dioxide emissions-the court believed that it would be required, at a minimum, to: determine the appropriate level at which to cap the emissions and the appropriate percentage reduction; create a schedule to implement the reductions; balance the implications of such relief with the United States' ongoing climate change negotiations with other nations; and assess and measure available alternative energy resources, "all without an 'initial policy determination' having been made by the elected branches." Id. at 272-73. The district court pointed to the "deliberate inactions of Congress and the Executive," both in the domestic and international arena "in response to the issue of climate change," and remonstrated Plaintiffs for seeking to impose by "judicial fiat" the kind of relief that Congress and the Executive had specifically refused to impose. Id. at 273-74. That fact underscored for the court that the "initial policy determination addressing global climate change" was an undertaking for the political branches, which were charged with the "identification and balancing of economic, environmental, foreign policy, and national security interests." Id. at 274.

Judgment entered on September 19, 2005, and both groups of Plaintiffs timely appealed. Amici have submitted briefs as well, but most of them are untimely and we will therefore not consider them.*fn3

DISCUSSION

I. Standard of Review

"We review de novo a district court's grant of a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted." Flores v. S. Peru Copper Corp., 414 F.3d 233, 241 (2d Cir. 2003). "For the purpose of such review, this Court must accept as true all allegations in the complaint and draw all reasonable inferences in favor of the non-moving party." Gorman v. Consol. Edison Corp., 488 F.3d 586, 591-92 (2d Cir. 2007) (citing Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002)).

If a complaint presents a non-justiciable political question, the proper course is for us to affirm dismissal. See 767 Third Ave. Assocs. v. Consulate Gen. of Socialist Fed. Republic of Yugoslavia, 218 F.3d 152, 164 (2d Cir. 2000) ("[W]here adjudication would force the court to resolve 'political questions,' the proper course for the courts is to dismiss.").

II. The Political Question Doctrine

A. Overview of the Political Question Doctrine

The political question doctrine is "primarily a function of the separation of powers," Baker v. Carr, 369 U.S. 186, 210 (1962), "designed to restrain the Judiciary from inappropriate interference in the business of the other branches of Government," United States v. MunozFlores, 495 U.S. 385, 394 (1990), where that other branch is better suited to resolve an issue. This limitation on the federal courts was recognized in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), in which Chief Justice Marshall wrote, "[q]uestions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court." Id. at 170. Consequently, "[o]ut of due respect for our coordinate branches and recognizing that a court is incompetent to make final resolution of certain matters, these political questions are deemed 'nonjusticiable.'" Lane ex rel. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). See generally Schneider v. Kissinger, 412 F.3d 190, 194-96 (D.C. Cir. 2005) (describing Constitution's textual allocation of authority among three branches of government).

In an effort to "expose the attributes of the [political question] doctrine-attributes which, in various settings, diverge, combine, appear, and disappear in seeming disorderliness," Baker, 369 U.S. at 210, the Court set out six "formulations" which "may describe a political question": Prominent on the surface of any case held to involve a political question is found [(1)] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [(2)] a lack of judicially discoverable and manageable standards for resolving it; or [(3)] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [(4)] the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [(5)] an unusual need for unquestioning adherence to a political decision already made; or [(6)] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Id. at 217. Baker set a high bar for nonjusticiability: "Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question's presence." Id. (emphasis added). In a recent pronouncement on the political question doctrine, the Supreme Court noted that the Baker factors "are probably listed in descending order of both importance and certainty." Vieth v. Jubelirer, 541 U.S. 267, 278 (2004). Notwithstanding ample litigation, the Supreme Court has only rarely found that a political question bars its adjudication of an issue. See Rachel E. Barkow, More Supreme Than Court? The Fall of the Political Question Doctrine & the Rise of Judicial Supremacy, 102 Colum. L. Rev. 237, 267-68 (2002) ("In fact, in the almost forty years since Baker v. Carr was decided, a majority of the Court has found only two issues to present political questions, and both involved strong textual anchors for finding that the constitutional decision rested with the political branches.").

Defendants' arguments touch upon the two most highly litigated areas of the political question doctrine: domestic controversies implicating constitutional issues and the conduct of foreign policy. In the first area, courts generally analyze the language of the Constitution to determine whether adjudication of a dispute is "textually committed" to the Executive or Legislative branches. See, e.g., Nixon v. United States, 506 U.S. 224, 228, 238 (1993) (finding political question in case where federal judge alleged that the Senate's impeachment procedures violated the Constitution's Impeachment Clause and the Senate, not the Court, had sole discretion to choose impeachment procedures); Gilligan v. Morgan, 413 U.S. 1, 7 (1973) (finding political question based on Article I, Section 8, Clause 16 of the U.S. Constitution in case where the relief sought by former Kent State University students over the training, weaponry, and orders of the Ohio National Guard "embrace[d] critical areas of responsibility vested by the Constitution in the Legislative and Executive branches of the Government"); United States v. Sitka, 845 F.2d 43, 46 (2d Cir. 1988) (basing its ruling on the holding in Coleman v. Miller, 307 U.S. 433, 450-56 (1939), that "procedures employed in the ratification of constitutional amendments" presented non-justiciable political questions, and affirming dismissal of taxpayer's challenge to allegedly improper ratification of Sixteenth Amendment).

However, not all cases touching upon constitutional issues that may also raise "an issue of great importance to the political branches" and have "motivated partisan and sectional debate," present non-justiciable political questions. U.S. Dep't of Commerce v. Montana, 503 U.S. 442, 458 (1992). In Montana, the Supreme Court wrote that, in invoking the political question doctrine, a court acknowledges the possibility that a constitutional provision may not be judicially enforceable. Such a decision is of course very different from determining that specific congressional action does not violate the Constitution. That determination is a decision on the merits that reflects the exercise of judicial review, rather than the abstention from judicial review that would be appropriate in a case of a true political question.

Id.; see also, e.g., Wesberry v. Sanders, 376 U.S. 1 (1964) (ruling that challenge to state districting decisions relating to the election of Members of Congress was justiciable).

The second-and more frequently litigated-area where cases "might pose special questions concerning the judiciary's proper role [is] when adjudication might have implications in the conduct of this nation's foreign relations." Kadic v. Karadzic, 70 F.3d 232, 248 (2d Cir. 1995). The Supreme Court has explained that "[t]he conduct of the foreign relations of our Government is committed by the Constitution to the executive and legislative-'the political'-departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision." Oetjen v. Cent. Leather Co., 246 U.S. 297, 302 (1918). Baker summarized the areas where federal courts have found nonjusticiable political questions in foreign relations matters, such as "recognition of foreign governments," "which nation has sovereignty over disputed territory," "recognition of belligerency abroad," determination of "a person's status as representative of a foreign government," and "[d]ates of duration of hostilities." Baker, 369 U.S. at 212, 213; see, e.g., Johnson v. Eisentrager, 339 U.S. 763, 789 (1950) (challenging the President's decision to deploy troops in a foreign land); Jones v. United States, 137 U.S. 202, 212 (1890) ("Who is the sovereign, de jure or de facto, of a territory, is not a judicial, but a political, question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens, and subjects of that government."); Whiteman v. Dorotheum GmbH & Co., KG, 431 F.3d 57, 59-60 (2d Cir. 2005) (holding that deference to U.S. statement of foreign policy interests urging dismissal of claims against foreign sovereign was appropriate where Executive branch and U.S. Government had entered agreements and therefore resolution of issue in alternate international forum would be superior to federal court litigation of issue); In re Austrian & German Holocaust Litig., 250 F.3d 156, 164 (2d Cir. 2001) (holding that a district court order that "seemingly requires the German legislature to make a finding of legal peace and to do so before its summer recess" improperly intruded into the Executive's realm); 767 Third Ave. Assocs., 218 F.3d at 159-60 (determining whether successor States succeeded to liabilities of dissolved former State); Can v. United States, 14 F.3d 160, 162-63 (2d Cir. 1994) (holding that a determination of title to blocked South Vietnamese assets would require resolution of issues of state succession and the President's power to recognize foreign governments, which were constitutionally committed to the Executive branch).

In sum,

[t]he political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. The Judiciary is particularly ill suited to make such decisions, as 'courts are fundamentally underequipped to formulate national policies or develop standards for matters not legal in nature.'

Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230 (1986) (quoting United States ex rel. Joseph v. Cannon, 642 F.2d 1373, 1379 (D.C. Cir. 1981) (footnote omitted)). Nevertheless, "[t]he political question doctrine must be cautiously invoked," Can, 14 F.3d at 163, and simply because an issue may have political implications does not make it non-justiciable, see Baker, 369 U.S. at 211, 217 (cautioning that the doctrine "is one of 'political questions,' not one of 'political cases'" and that, in the foreign relations sphere, "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance"). As the Fifth Circuit recently wrote, "[t]he Baker analysis is not satisfied by 'semantic cataloguing' of a particular matter as one implicating 'foreign policy' or 'national security.' Instead, Baker demands a 'discriminating inquiry into the precise facts and posture of the particular case' before a court may withhold its own constitutional power to resolve cases and controversies." Lane, 529 F.3d at 558 (quoting Baker, 369 U.S. at 216). This Court has held that the "preferable approach is to weigh carefully the relevant considerations on a case-by-case basis." Kadic, 70 F.3d at 249.

B. Application of the Baker Factors

As noted above, the district court found the third Baker factor "particularly pertinent" to its "finding that Plaintiffs raise a non-justiciable political question." Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 272 (S.D.N.Y. 2005). The court explained that an "initial policy determination" by the elected branches was required before it could adjudicate a global warming nuisance claim. Id. (internal quotation marks omitted). In buttressing its determination, the district court characterized Plaintiffs' arguments as "touch[ing] on so many areas of national and international policy," where the "scope and magnitude of the relief" sought "reveal[] the transcendently legislative nature of this litigation." Id. On appeal, Plaintiffs contend that none of the Baker factors apply, while Defendants assert that each Baker factor applies.

1. The First Baker Factor: Is There a Textually Demonstrable Constitutional Commitment of the Issue to a Coordinate Political Department?

This Court has described the first Baker factor as the "dominant consideration in any political question inquiry." Lamont v. Woods, 948 F.2d 825, 831 (2d Cir. 1991). The first factor "recognizes that, under the separation of powers, certain decisions have been exclusively committed to the legislative and executive branches of the federal government, and are therefore not subject to judicial review." McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1358-59 (11th Cir. 2007).

Defendants define the issue in these two cases as "whether carbon dioxide emissions... should be subject to mandatory limits and/or reductions" and argue that resolution of that issue is "textually committed to Congress by the Commerce Clause" as a matter of "high policy." Beyond this cursory reference to "high policy," Defendants fail to explain how the emissions issue is textually committed to the Commerce Clause. We find this position insufficiently argued and therefore consider it waived. See Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998) ("Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.").

Next, Defendants argue that "permitting these and other plaintiffs to use an asserted federal common law nuisance cause of action to reduce domestic carbon dioxide emissions will impermissibly interfere with the President's authority to manage foreign relations"; that "unilateral reductions of U.S. carbon dioxide emissions would interfere with the President's efforts to induce other nations to reduce their emissions"; and the court's interjection in this arena would usurp the President's authority to "resolve fundamental policy questions" that he is seeking to solve through diplomatic means.

Again, Defendants make conclusory statements but provide no support for their argument in this section of their brief. They do, however, shed some light on these arguments in other parts of their brief. In their Statement of the Case, they note that the Senate urged President Clinton "not to sign any agreement that would result in serious harm to the economy or that did not include provisions limiting emissions by developing nations." In their discussion of displacement, they cite H.R. REP. NO. 102-474, pt. 1, at 152 (1992), which provides that mandatory emissions measures should be undertaken "only in the context of concerted international action," and state that three Presidents have worked "within the United Nations framework and elsewhere to develop... an effective and science-based response to the issue of global warming." Defendants conclude that "unilateral, mandatory emissions reductions... will undermine the nation's multilateral strategy" and "reduce[] the bargaining leverage the President needs to implement a multilateral strategy by giving him less to offer in exchange for reductions by other nations."

It cannot be gainsaid that global warming poses serious economic and ecological problems that have an impact on both domestic politics and international relations. Nevertheless, Defendants' characterization of this lawsuit as implicating "complex, inter-related and far-reaching policy questions about the causes of global climate change and the most appropriate response to it" magnifies to the outer limits the discrete domestic nuisance issues actually presented. A result of this magnification is to misstate the issues Plaintiffs seek to litigate. Nowhere in their complaints do Plaintiffs ask the court to fashion a comprehensive and far-reaching solution to global climate change, a task that arguably falls within the purview of the political branches.*fn4 Instead, they seek to limit emissions from six domestic coal-fired electricity plants on the ground that such emissions constitute a public nuisance that they allege has caused, is causing, and will continue to cause them injury. A decision by a single federal court concerning a common law of nuisance cause of action, brought by domestic plaintiffs against domestic companies for domestic conduct, does not establish a national or international emissions policy (assuming that emissions caps are even put into place). Nor could a court set across-the-board domestic emissions standards or require any unilateral, mandatory emissions reductions over entities not party to the suit.*fn5 In contrast to cases such as Whiteman v. Dorotheum GmbH & Co. and In re Austrian & German Holocaust Litig., where courts have found political questions barring adjudication, invocation of the political question doctrine here is unwarranted because the relief for which Plaintiffs pray applies in only the most tangential and attenuated way to the expansive domestic and foreign policy issues raised by Defendants.*fn6

In this common law nuisance case, "[t]he department to whom this issue has been 'constitutionally committed' is none other than our own-the Judiciary." Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 49 (2d Cir. 1991); see also Me. People's Alliance & Natural Res. Def. Council v. Mallinckrodt, Inc., 471 F.3d 277, 286 (1st Cir. 2006) ("[N]uisance principles contribute heavily to the doctrinal template that underbraces [environmental] statutes... and the tasks involved in adjudicating environmental cases are well within the federal courts' accustomed domain.") (internal citation omitted).

We find no textual commitment in the Constitution that grants the Executive or Legislative branches responsibility to resolve issues concerning carbon dioxide emissions or other forms of alleged nuisance. Accordingly, we hold that the first Baker factor does not apply.

2. The Second Baker Factor: Is There a Lack of Judicially-Discoverable and Manageable Standards for Resolving This Case?

"One of the most obvious limitations imposed by [Article III, Section 1 of the Constitution] is that judicial action must be governed by standard, by rule." Vieth v. Jubelirer, 541 U.S. 267, 278 (2004) (plurality opinion). Defendants point to the complexities involved in pollution control cases and assert that such intricacies "pale in comparison to those presented here," given the uncertainties surrounding the precise effect of greenhouse gas emissions on climate. Those uncertainties, Defendants argue, are "mere preludes to the unmanageable policy questions a court would then have to confront" in adjudicating Plaintiffs' claim, including: How fast should emissions be reduced?; Should power plants or automobiles be required to reduce emissions?; Who should bear the cost of reduction?; and How are the impacts on jobs, the economy, and the nation's security to be balanced against the risks of future harms? Quoting City of Milwaukee v. Illinois, 451 U.S. 304, 317 (1981) ("Milwaukee II"), Defendants assert that the "vague and indeterminate nuisance concepts and maxims of equity" gleaned from public nuisance cases or the Restatement (Second) of Torts § 821B (1979)*fn7 provide no guidance for resolving these unmanageable issues.

Defendants' argument is undermined by the fact that federal courts have successfully adjudicated complex common law public nuisance cases for over a century. The first cases involved States bringing claims against other States, or against private parties in other States, in the Supreme Court under its original jurisdiction. For example, in 1901, the Supreme Court decided Missouri v. Illinois, 180 U.S. 208 (1901) ("Missouri I"), a public nuisance case in which Missouri sued to prevent Illinois from discharging sewage into a channel that emptied into the Mississippi River forty-three miles above St. Louis, which Missouri feared would make the water unfit for human, agricultural, or manufacturing purposes. The Court held that Missouri could maintain a lawsuit for equitable relief even before it actually sustained injury.*fn8 Illinois later began discharging sewage into the river. In Missouri v. Illinois, 200 U.S. 496 (1906) ("Missouri II"), Missouri brought a second suit before the Court, seeking to enjoin the discharge on the ground that it constituted a public nuisance. The Court carefully appraised the sophisticated scientific and expert evidence offered (such as whether the typhoid bacillus could survive the waterborne journey), weighed the equities, and concluded that Missouri had not made its case, particularly with respect to establishing injury and causation. Id. at 522-26.

Another example of the federal courts' masterful handling of complex public nuisance issues concerned an air pollution controversy. Between 1907 and 1916, the State of Georgia appeared before the Supreme Court on four different occasions in its suit against Tennessee Copper Company and another copper foundry, alleging that noxious emissions from the plants were destroying forests, orchards, and crops in Georgia. In the first action, the Court characterized Georgia's injuries as "analogous to torts" and adjudicated the merits. Georgia v. Tenn. Copper Co., 206 U.S. 230, 237-39 (1907). Next, the Court assessed the adequacy of steps taken by the defendants to abate the fumes and ordered injunctive relief including a reduction of sulfur dioxide emissions and total emissions to not more than 20 tons per day from April to October of each year and to not more than 40 tons per day during the rest of the year. Georgia v. Tenn. Copper Co., 237 U.S. 474, 474-78 (1915). The Court then discussed facts relevant to appropriate emissions limitations. Georgia v. Tenn. Copper Co., 237 U.S. 678, 678-80 (1915). In its final decree, the Court set definitive emissions limits, imposed monitoring requirements, and apportioned costs between the defendants. Georgia v. Tenn. Copper Co., 240 U.S. 650, 650-51 (1916). In adjudicating this dispute, the Court evaluated the evidence, considered the magnitude of the injury, causation, and equitable factors, and granted injunctive relief to Georgia, "satisfied, by a preponderance of evidence, that the sulphurous fumes cause and threaten damage on so considerable a scale to the forests and vegetable life, if not to health, within the plaintiff state, as to make out a case within the requirements of [Missouri II]." Tenn. Copper, 206 U.S. at 238-39.

These cases were among the first in a long line of federal common law of nuisance cases where federal courts employed familiar public nuisance precepts, grappled with complex scientific evidence, and resolved the issues presented, based on a fully developed record. See, e.g., New Jersey v. City of New York, 283 U.S. 473 (1931) (seeking to enjoin New York from dumping garbage into the ocean and polluting New Jersey beaches and water); North Dakota v. Minnesota, 263 U.S. 365 (1923) (seeking to enjoin, as public nuisance, a Minnesota irrigation project that contributed to flooding of North Dakota farmland); New York v. New Jersey, 256 U.S. 296 (1921) (seeking to enjoin sewage discharge into boundary waters and causing pollution); Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518 (1851) (alleging interference with navigation on Ohio River by low bridge as constituting public nuisance). See also Illinois v. City of Milwaukee, 406 U.S. 91 (1972) ("Milwaukee I") (agreeing that sewage discharge constituted public nuisance and that case could still be adjudicated by federal courts under federal common law because amendments to Clean Water Act did not provide remedy).

Moreover, as a general matter, the Supreme Court and this Court have often turned to the Restatement (Second) of Torts for assistance in developing standards in a variety of tort cases.*fn9 See, e.g., United States v. Atl. Research Corp., 551 U.S. 128, 141 (2007) (invoking Restatement (Second) of Torts § 886A(2) in applying traditional rules of equity when assessing liability in CERCLA case); Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 466-67 (2006) (citing Restatement for proximate cause and certainty of damages); Higazy v. Templeton, 505 F.3d 161, 175 (2d Cir. 2007) (applying Restatement's proximate cause/superseding cause analysis in Bivens action); Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 287-88 (2d Cir. 2007) (per curiam) (Hall, J., concurring) (adopting Restatement's definition of aiding and abetting in Alien Tort Claims Act case); Project Hope v. M/V IBN SINA, 250 F.3d 67, 76 (2d Cir. 2001) (quoting Restatement (Second) of Torts § 879 for proposition that "federal common law permits imposition of joint and several liability"); see also Commonwealth Edison Co. v. United States, 271 F.3d 1327, 1353 (Fed. Cir. 2001) (looking to Restatement for contours and scope of common law nuisance). It is true that the Restatement's definition of public nuisance-"an unreasonable interference with a right common to the general public"-is broad. Restatement (Second) of Torts § 821B. But Judge James Oakes, sitting on the district court by designation, successfully applied the Restatement's standard in a common law nuisance action brought by the United States to reduce pollution of Lake Champlain by vessels that transported oil, ordering a detailed remedial plan. See United States v. Bushey & Sons, 363 F. Supp. 110, 120-21 (D. Vt. 1973), aff'd without opinion, 487 F.2d 1393 (2d Cir. 1973); see also Cox v. City of Dallas, 256 F.3d 281, 291 (5th Cir. 2001) (describing remedies available in nuisance actions by citing Restatement (Second) of Torts §§ 821B and 821C, and explaining that nuisance actions were "the common law backbone of modern environmental law" (citation omitted)); Nat'l Sea Clammers Ass'n v. City of New York, 616 F.2d 1222, 1234 (3d Cir. 1980), vacated on other grounds, 453 U.S. 1 (1981) (adopting Restatement definition of public nuisance and observing that the Restatement formulation "encompasses the injury alleged in this case"). In Section IV(B), infra, we apply the Restatement definition of public nuisance to the federal common law of nuisance and demonstrate that it provides a workable standard.

Following the Restatement and common law tort principles is consistent with the exigencies of common law decision-making, which proceeds through the incremental, analogical application of broadly-stated principles, and... is therefore not amenable to the formulation of finely detailed rules in the manner of a regulatory code.... [T]he contextual nature and factual sensitivity of common law judicial rulemaking takes account of the "practical problems" that can result from ill-designed legal rules, and the flexibility of the common law process allows those problems to be addressed and avoided as they arise.

Khulumani, 504 F.3d at 290 (Hall, J., concurring).

Federal courts have applied well-settled tort rules to a variety of new and complex problems. For example, in Klinghoffer, a wrongful death case where an American passenger on an ocean liner was killed by Palestinian Liberation Organization ("PLO") operatives, this Court rejected the PLO's argument that the claim presented a non-justiciable political question because it raised "foreign policy questions and political questions in a volatile context [, i.e., international terrorism,] lacking satisfactory criteria for judicial determination." Klinghoffer, 937 F.2d at 49. This Court looked beyond "[t]he fact that the issues before us arise in a politically charged context," discerned that the actual cause of action was "an ordinary tort suit, alleging that the defendants breached a duty of care owed to the plaintiffs or their decedents," and concluded that the political implications of the suit did not "convert what is essentially an ordinary tort suit into a non-justiciable political question." Id. With regard to the standards employed to assess the claims, this Court stated that "because the common law of tort provides clear and well-settled rules on which the district court can easily rely, this case does not require the court to render a decision in the absence of judicially discoverable and manageable standards." Id. (internal quotation marks omitted).

Accordingly, we do not agree that there are no judicially discoverable and manageable standards for resolving this case. Well-settled principles of tort and public nuisance law provide appropriate guidance to the district court in assessing Plaintiffs' claims and the federal courts are competent to deal with these issues. Defendants' arguments to the contrary are overstated. As noted above, Plaintiffs' complaints do not ask the district court to decide overarching policy questions such as whether other industries or emission sources not before the court must also reduce emissions or determine how across-the-board emissions reductions would affect the economy and national security. In adjudicating the federal common law of nuisance claim pleaded here, the district court will be called upon to address and resolve the particular nuisance issue before it, which does not involve assessing and balancing the kind of broad interests that a legislature or a President might consider in formulating a national emissions policy. The question presented here is discrete, focusing on Defendants' alleged public nuisance and Plaintiffs' alleged injuries. As the States eloquently put it, "[t]hat Plaintiffs' injuries are part of a worldwide problem does not mean Defendants' contribution to that problem cannot be addressed through principled adjudication."

That the district court may be called upon to decide causation issues and apply a remedy does not remove the case from the ambit of nuisance actions. Federal courts have long been up to the task of assessing complex scientific evidence in cases where the cause of action was based either upon the federal common law or upon a statute. They are adept in balancing the equities and in rendering judgment. See, e.g., Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987) ("Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment."). The fact that a case may present complex issues is not a reason for federal courts to shy away from adjudication; when a court is possessed of jurisdiction, it generally must exercise it. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821). Additionally, the fact that this case is governed by recognized judicial standards under the federal common law of nuisance "obviates any need to make initial policy decisions of the kind normally reserved for nonjudicial discretion" and "further undermines the claim that such suits relate to matters that are constitutionally committed to another branch." Kadic, 70 F.3d at 249.

Defendants are not entitled to dismissal based on the second Baker factor.

3. The Third Baker Factor: Is It Impossible to Decide this Case Without an Initial Policy Determination of a Kind Clearly for Nonjudicial Discretion?

The district court relied upon the third Baker factor in dismissing Plaintiffs' complaints. It concluded that a solution to the problems created by carbon dioxide emissions must be global in nature and based on domestic policy considerations-such as the need to balance relevant environmental and economic interests and the possible impact on national security-and held that only the political branches are empowered to act in such a context. Am. Elec. Power Co., 406 F. Supp. 2d at 272-73. On appeal, Defendants contend that the relevant policy decision is not, as Plaintiffs argue, abatement of a nuisance. Instead, "[t]he missing policy decision is whether to impose mandatory greenhouse gas emissions limits and, if so, on whom, in what manner and at what cost. No such... decision can be found in statutes in which Congress has called for additional study but declined to impose such limits." Defendants argue that the "very nature of this phenomenon requires a comprehensive response."

The district court found it significant that the political branches had failed to supply an initial policy decision because they had refused to regulate carbon dioxide emissions. The court viewed the possibility of any regulation coming out of the courts as countering the political branches' refusal to act. Am. Elec. Power Co., 406 F. Supp. 2d at 273-74. The district court's reliance on a refusal to legislate results in a decision resting on particularly unstable ground. The Supreme Court has stated, in the context of displacement of federal common law, that "Congress's mere refusal to legislate... falls far short of an expression of legislative intent to supplant the existing common law in that area." United States v. Texas, 507 U.S. 529, 535 (1993). The district court's reasoning in this regard is inapposite in a case making a federal common law of nuisance claim where, if regulatory gaps exist, common law fills those interstices. See generally Khulumani, 504 F.3d at 287 (citing U.S. v. Kimbell Foods, 440 U.S. 715, 727 (1979)).

The holding in Milwaukee I accentuates that point. In Milwaukee I, the federal government had "enacted numerous laws touching interstate waters," including the Federal Water Pollution Control Act and statutes researching the aquatic environment. Milwaukee I, 406 U.S. at 101-02. Because the pollution abatement remedy sought by Illinois was not "within the precise scope of remedies prescribed by Congress," the Court looked to federal common law to abate the nuisance, and to supply an appropriate remedy. Id. at 103-04. The Court wrote:

It may happen that new federal laws and new federal regulations may in time preempt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance by water pollution.

Id. at 107. Milwaukee I stands for the proposition that if the extant statutes governing water pollution do not cover a plaintiff's claims and provide a remedy, a plaintiff is free to bring its claim under the federal common law of nuisance; a plaintiff is not obliged to await the fashioning of a comprehensive approach to domestic water pollution before it can bring an action to invoke the remedy it seeks. See id. at 101-02. Similarly, the fact that the Clean Air Act ("CAA") or other air pollution statutes, as they now exist, do not provide Plaintiffs with the remedy they seek does not mean that Plaintiffs cannot bring an action and must wait for the political branches to craft a "comprehensive" global solution to global warming. Rather, Plaintiffs here may seek their remedies under the federal common law. They need not await an "initial policy determination" in order to proceed on this federal common law of nuisance claim, as such claims have been adjudicated in federal courts for over a century.

It is also fair to say that the Executive branch and Congress have not indicated they favor increasing greenhouse gases. On the contrary, the political branches are at the very least concerned about global warming, and Congress has passed laws that call for study of climate change and research into technologies that will reduce emissions. See, e.g., Global Climate Protection Act of 1987, Pub. L. No. 100-204, Title XI, §§ 1103, 101 Stat. 1407, as amended by Pub. L. No. 103-199, 107 Stat. 2327, reprinted as note to 15 U.S.C. § 2901 (stating that United States policy should seek to "(a) increase worldwide understanding of the greenhouse effect and its environmental and health consequences;... [and] (3) identify technologies and activities to limit mankind's adverse effect on the global climate by-(A) slowing the rate of increase of concentrations of greenhouse gases in the near term...."

As other courts have found, where a case "appears to be an ordinary tort suit, there is no 'impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion.'" McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1365 (11th Cir. 2007) (quoting Baker, 369 U.S. at 217). Such is the case here. Accordingly, the third Baker factor does not apply.

4. The Fourth, Fifth, and Sixth Baker Factors: Will Adjudication of This Case Demonstrate "Lack of Respect" for the Political Branches, Contravene "An Unusual Need for Unquestioning Adherence to a Political Decision Already Made," or "Embarrass" the Nation as a Result of "Multifarious Pronouncements by Various Departments"?

"The fourth through sixth Baker factors appear to be relevant only if judicial resolution of a question would contradict prior decisions taken by a political branch in those limited contexts where such contradiction would seriously interfere with important governmental interests." Kadic, 70 F.3d at 249. Defendants lump these final Baker factors together, arguing only that because "U.S. policy is manifestly not to engage in unilateral reductions of domestic emissions," where Congress opted only to study the issue, a judicially imposed resolution enjoining domestic emissions through federal common law would demonstrate a "lack of respect" for the political branches, contravene a "political decision already made," and create the potential for "embarrassment from multifarious pronouncements by various departments on one question."

Lurking behind Defendants' arguments is this salient question: What exactly is U.S. "policy" on greenhouse gas emissions? At one point in their briefs, Defendants acknowledge that this country's official policy and Congress's strategy is to reduce the generation of greenhouse gases. Elsewhere, they point to a policy of research as a prelude to formulating a coordinated, national policy. They also assert that U.S. policy is "not to engage in unilateral reduction of domestic emissions" (relating, in particular, to the international arena). These variegated pronouncements underscore the point that there really is no unified policy on greenhouse gas emissions.*fn10 Allowing this litigation where there is a lack of a unified policy does not demonstrate any lack of respect for the political branches, contravene a relevant political decision already made, or result in multifarious pronouncements that would embarrass the nation. See Alperin v. Vatican Bank, 410 F.3d 532, 558 (9th Cir. 2005) ("Because of a lack of a policy decision on point, we do not reach the question posed by the fifth Baker test whether there is an 'unusual need for unquestioning adherence' thereto." (quoting Baker, 369 U.S. at 217)); Klinghoffer, 937 F.2d at 50 ("[N]o prior political decisions are questioned-or even implicated-by the matter before us.").

At the same time, to the extent that Defendants claim U.S. emissions policy does not aim to reduce emissions, their argument is undermined by the legislation they cite in their brief, which supports a conclusion that U.S. emissions policy seeks to eventually achieve the "stabilization and eventual reduction in the generation of greenhouse gases," Energy Policy Act of 1992, 42 U.S.C. § 13382(a)(2), (g), and to "limit mankind's adverse effect on the global climate...," Global Climate Protection Act of 1987, § 1103(a)(3). In this respect, adjudication would certainly not contravene any political decision already made.

Certainly, the political implications of any decision involving possible limits on carbon emissions are important in the context of global warming, but not every case with political overtones is non-justiciable. It is error to equate a political question with a political case. See Baker, 369 U.S. at 217 ("The doctrine... is one of 'political questions,' not one of 'political cases.'"). Given the checks and balances among the three branches of our government, the judiciary can no more usurp executive and legislative prerogatives than it can decline to decide matters within its jurisdiction simply because such matters may have political ramifications.

Furthermore, given the nature of federal common law, where Congress may, by legislation, displace common law standards by its own statutory or regulatory standards and require courts to follow those standards, there is no need for the protections of the political question doctrine. The legislative branch is free to amend the Clean Air Act to regulate carbon dioxide emissions, and the executive branch, by way of the EPA, is free to regulate emissions, assuming its reasoning is not "divorced from the statutory text." Massachusetts v. EPA, 549 U.S. 497, 532 (2007). Either of these actions would override any decision made by the district court under the federal common law.

In sum, we hold that the district court erred when it dismissed the complaints on the ground that they presented ...


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