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Climate Change Liability, Litigation and Disclosure

Douglas B. Sanders, Resources Development and Climate Change (2008)

While, at times, some judges have become involved with the most critical issues affecting America, political questions are not the proper domain of judges . . . . cases presenting political questions are consigned to the political branches that are accountable to the People, not the Judiciary, and the Judiciary is without power to resolve them. This is one of those cases.2

Judge Preska of the District Court for the Southern District of New York dismissed the lawsuits brought by several states and NGOs against a handful of major U.S. power companies for contributing to climate change, concluding that it was a political question and beyond the purview of the court.3 Climate change and the regulation of greenhouse gases (“GHGs”) arguably are influenced by politics - both international and domestic. But will the political nature of the climate change issue continue to preclude litigation?

Over the past ten years, the course of climate change politics in the United States shifted away from action to inaction. Recently, however, the political winds have begun to shift back, and it remains to be seen whether the political nature of the climate change issue will protect significant GHG emitters from tort liability indefinitely. Moreover, even if climate change is viewed as a political question for purposes of Article III of the Constitution, other challenges and liabi