Prods and pleas: Limited government in an era of unlimited harm

Yale Law Journal

Volumn 121, Issue 2, 2011, Pages 350-424

  Ewing, Benjamin ^a   Kysar, Douglas A ^b  

^a PRINCETON UNIVERSITY   (United States)

^b YALE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 80155205787     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (410)

1. Martin L. Weitzman, On Modeling and Interpreting the Economics of Catastrophic Climate Change, 91 REV. ECON. & STAT. 1 (2009) (offering a formal proof of the 'dismal theorem,' which holds that in certain cases of high uncertainty and extreme threat, the expected value of harm can be infinite).
2. On such tipping point scenarios, see the extremely useful overview: Timothy M. Lenton et al., Tipping Elements in the Earth's Climate System, 105 PROC. NAT'L ACAD. SCI. 1786 (2008).
3. DOUGLAS A. KYSAR, REGULATING FROM NOWHERE: ENVIRONMENTAL LAW AND THE SEARCH FOR OBJECTIVITY 71-98 (2010).
4. The 'new governance' literature is vast. For overviews, see Scott Burris, Michael Kempa & Clifford Shearing, Changes in Governance: A Cross-Disciplinary Review of Current Scholarship, 41 AKRON L. REV. 1 (2008);
5. Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 MINN. L. REV. 342 (2004).
6. Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267, 270 (1998) ('[O]ur national affairs are too complex, diverse, and volatile to be governed by lapidary expressions of the public will-laws of Congress, administrative rules, judicial judgments-that indicate precisely how to dispose of most of the cases to which they will eventually be applied.').
7. Lisa Heinzerling & Frank Ackerman, Law and Economics for a Warming World, 1 HARV. L. & POL'Y REV. 331, 335 (2007).
8. Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. REV. 1, 10 (2007);
9. Richard B. Stewart, Madison's Nightmare, 57 U. CHI. L. REV. 335 (1990).
10. The Environmental Protection Agency's implementation of the Clean Air Act (CAA) with respect to greenhouse gas emissions has been widely understood in these terms.
11. John M. Broder, E.P.A. Limit on Gases To Pose Risk to Obama and Congress, N.Y. TIMES, Dec. 30, 2010, http://www.nytimes.com/2010/12/31/science/earth/31epa.html (noting that President Obama 'offered Congress wide latitude to pass climate change legislation, but held in reserve the threat of E.P.A. regulation if it failed to act'). Interestingly, Senator Lisa Murkowski, who led a legislative attempt to block EPA's implementation efforts, also understood her actions from a systemic, interbranch perspective: 'You attack it at all fronts. You go the judicial route. You go the legislative route. I think this is important to make sure we are looking at all avenues.'
12. Darren Samuelsohn, President Obama's Climate 'Plan B' in Hot Water, POLITICO, Aug. 2, 2010, http://www.politico.com/news/stories/0810/40534.html.
13. Rebecca M. Kysar, Listening to Congress: Earmark Rules and Statutory Interpretation, 94 CORNELL L. REV. 519 (2009).
14. Douglas A. Kysar & Bernadette A. Meyler, Like a Nation State, 55 UCLA L. REV. 1621, 1672 (2008). For insightful characterization of these and similar actions by subnational actors as part of 'translocal organizations of government actors' that resist easy mapping onto a federalism grid with strict horizontal and vertical axes,
15. Judith Resnik, Joshua Civin & Joseph Frueh, Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs), 50 ARIZ. L. REV. 709 (2008).
16. Heather K. Gerken, Dissenting by Deciding, 57 STAN. L. REV. 1745, 1764 (2005) (marriage);
17. id. at 1756 (evolution);
18. Heather K. Gerken, Foreword: Federalism All the Way Down, 124 HARV. L. REV. 4, 68 (2010) (immigration).
19. Cf. GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 18 (1982) (advocating discharge of judicial duties with a view toward 'induc[ing] the legislature to reconsider statutes that are out of date, out of phase, or ill adapted to the legal topography'). Daniel Markovits offers a defense of 'democratic disobedience' by citizens that similarly seeks to 'correct deficits in democratic authority. by overcoming political inertia and triggering a democratic reengagement with issues that the status quo has kept off the political agenda.'
20. Daniel Markovits, Democratic Disobedience, 114 YALE L.J. 1897, 1933 (2005).
21. For analysis of these significant obstacles, see Douglas A. Kysar, What Climate Change Can Do About Tort Law, 41 ENVTL. L. 1 (2011).
22. Judith Resnik, Bring Back Bentham: 'Open Courts,' 'Terror Trials,' and Public Sphere(s), 5 LAW & ETHICS HUM. RTS. 1 (2011).
23. Jack B. Weinstein, Procedural Reform as a Surrogate for Substantive Law Revision, 59 BROOK. L. REV. 827 (1993).
24. For insightful comparative institutional analyses of that nature, see, for example, Kenneth S. Abraham, The Relation Between Civil Liability and Environmental Regulation: An Analytical Overview, 41 WASHBURN L.J. 379 (2002);
25. Keith N. Hylton, When Should We Prefer Tort Law to Environmental Regulation?, 41 WASHBURN L.J. 515 (2002);
26. Thomas O. McGarity, Regulation and Litigation: Complementary Tools for Environmental Protection, 30 COLUM. J. ENVTL. L. 371 (2005);
27. Christopher H. Schroeder, Lost in the Translation: What Environmental Regulation Does That Tort Cannot Duplicate, 41 WASHBURN L.J. 583 (2002).
28. In a recent work, Douglas NeJaime discusses underappreciated positive aspects of litigation defeat for social movements, including the possibility of using defeat 'to appeal to other state actors, including elected officials and judges, through reworked litigation and nonlitigation tactics.'
29. Douglas NeJaime, Winning Through Losing, 96 IOWA L. REV. 941, 941 (2011);
30. Ben Depoorter, Passive Courts, Active Litigants, 110 MICH. L. REV. (forthcoming 2011). Our analysis examines a similar dynamic occurring among government actors themselves.
31. Cf. Judith Resnik, Whither and Whether Adjudication?, 86 B.U. L. REV. 1101, 1102 (2006) ('What adjudication offers to democratic governance are occasions to observe the exercise of state authority and to participate, episodically, in norm generation-occurring through a haphazard process in which vivid sets of alleged harms make their way into public purview.').
32. 131 S. Ct. 2527 (2011). Only eight justices participated following Justice Sotomayor's recusal in American Electric Power Co., leaving the Court, by a 4-4 vote, to 'affirm. the Second Circuit's exercise of jurisdiction' in the suit. Id. at 2535. Although one might expect that Justice Sotomayor would also favor finding jurisdiction in future cases, the margin remains narrow, and defendants naturally will continue to raise political question, standing, andother justiciability barriers to tort law adjudication. Thus, in addition to their intellectual significance, the doctrinal matters discussed in Part III retain potentially weighty practical importance.
33. Nor, for that matter, should the Supreme Court's recent decisions articulating a heightened pleading standard in federal courts be exploited to ward off climate change litigation. See Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). As Arthur Miller has argued, such developments threaten to upset the longstanding 'accessminded and merit-oriented ethos at the heart of the original Federal Rules.'
34. Arthur R. Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 DUKE L.J. 1, 6 (2010). Although Iqbal and Twombly concern access-to-court issues that are relevant to our thesis, we have chosen in this Article to focus on doctrines such as standing and political question that more directly implicate separation-of-powers concerns and that involve the judiciary in a more self-conscious project of role definition.
35. Alexander M. Bickel, The Supreme Court: 1960 Term-Foreword: The Passive Virtues, 75 HARV. L. REV. 40, 40 (1961).
36. Helen Hershkoff, State Courts and the 'Passive Virtues': Rethinking the Judicial Function, 114 HARV. L. REV. 1833 (2001) (identifying and normatively defending departures from federal justiciability requirements among state courts).
37. Cass R. Sunstein, Standing and the Privatization of Public Law, 88 COLUM. L. REV. 1432, 1436 (1988).
38. Richard H. Pildes, Political Avoidance, Constitutional Theory, and the VRA, 117 YALE L.J. POCKET PART 148, 148 (2007), http://yalelawjournal.org/2007/12/10/pildes.html.
39. JOHN STUART MILL, ON LIBERTY 80 (David Bromwich & George Kateb eds., Yale Univ. Press 2003) (1859).
40. RESTATEMENT (SECOND) OF TORTS § 822 cmt. g (1979) (reporting the 'obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience and interference and must take a certain amount of risk in order that all may get on together').
41. OLIVER W. HOLMES, JR., THE COMMON LAW 95 (Dover Publ'ns 1991) (1881).
42. A recent report in the Proceedings of the National Academy of Sciences projects that business-as -usual anthropogenic greenhouse gas emissions could leave as much as half of the currently inhabited land on the planet physically incapable of supporting human existence within three centuries.
43. Steven C. Sherwood & Matthew Huber, An Adaptability Limit to Climate Change Due to Heat Stress, 107 PROC. NAT'L ACAD. SCI. 9552 (2010).
44. Douglas A. Kysar, Politics by Other Meanings: A Comment on 'Retaking Rationality Two Years Later, 48 HOUS. L. REV. 43, 62 (2011) ('Rather than positing some degree of fundamental dependence between socioeconomic and natural systems, [climate change] assessment models typically assume that the economy will continue to function more or less as is, even as damages from climate change grow ever larger. In the extreme, this means that global GDP can continue to pour forth within the models even after all presently inhabited land on earth has been rendered unsuitable for human existence.');
45. Heinzerling and Ackerman, supra note 6, at 348 ('A world in which business as usual threatens to cause disaster in a century or less-i.e., the warming world which we do inhabit-is not usefully modeled by theories in which stable, optimal equilibrium is the normal state of affairs.').
46. Ferdinand A. Hermens, The Choice of the Framers, 11 PRESIDENTIAL STUD. Q. 9, 17 (1981) (emphasizing 'the vital difference between checks and balances').
47. For instance, the Supreme Court's requirement that EPA provide scientific reasons for its failure to implement the CAA with respect to greenhouse gas emissions made delay essentially untenable for an agency that derives its legitimacy largely from being perceived as science-driven. See Massachusetts v. EPA, 549 U.S. 497, 534-35 (2007).
48. The Supreme Court's numerous attempts to draw Congress's attention to the problem of asbestos litigation is one primary example.
49. See, e.g., Norfolk & W. Ry. v. Ayers, 538 U.S. 135, 166 (2003) (stating that '[t]he 'elephantine mass of asbestos cases' lodged in state and federal courts. 'defies customary judicial administration and calls for national legislation'' (quoting Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999))).
50. For instance, the Republican House's recent attempt to repeal the Patient Protection and Affordable Care Act in the face of certain Senate rejection might be seen as a 'prod.' Cf. Repealing the Job-Killing Health Care Law Act, H.R. 2, 112th Cong. (2011);
51. David M. Herszenhorn & Robert Pear, House Votes for Repeal of Health Law in Symbolic Act, N.Y. TIMES, Jan. 19, 2011, http://www.nytimes.com/2011/01/20/health/policy/20cong.html (noting that Republican leaders 'conced[ed] th[e] reality' that the Democratic Senate would certainly reject their repeal attempt).
52. This behavior may signal to voters that the President is unwilling to take affirmative steps to address a particular issue of concern to many people, thereby pressuring the President to respond.
53. Tim Groseclose & Nolan McCarty, The Politics of Blame: Bargaining Before an Audience, 45 AM. J. POL. SCI. 100 (2001).
54. In 2001, in response to years of unanimous state court adherence to a strict method of statutory interpretation set forth in a famous 1993 case, the Oregon legislature passed a law intended to make legislative history a more prominent part of the state courts' interpretive methodology.
55. OR. REV. STAT. § 174.020(3) (2009);
56. Portland Gen. Elec. Co. v. Bureau of Labor & Indus., 859 P.2d 1143 (Or. 1993);
57. Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 YALE L.J. 1750, 1775-85 (2010).
58. For instance, in July 2008, President Bush lifted an executive order banning offshore oil drilling, even though 'the move, by itself, w[ould] do nothing unless Congress act[ed] as well.' Bush To Lift Ban on Offshore Drilling, N.Y. TIMES, July 14, 2008, http://www.nytimes.com/2008/07/14/business/worldbusiness/14iht-14oil.14482997.html; (quoting Dana Perino, the White House Press Secretary, as stating: '[W]e are going to move forward, and hopefully that will spur action by the Congress').
59. As the Office of Information and Regulatory Affairs (OIRA) within OMB notes, The purpose of the prompt letter is to suggest an issue that OMB believes is worthy of agency priority. Rather than being sent in response to the agency's submission of a draft rule for OIRA review, a 'prompt' letter is sent on OMB's initiative and contains a suggestion for how the agency could improve its regulations. OIRA Prompt Letters, OFFICE OF INFO. & REGULATORY AFFAIRS, http://www.reginfo.gov/public/jsp/EO/promptLetters.jsp (last visited Sept. 18, 2011).
60. John D. Graham, Saving Lives Through Administrative Law and Economics, 157 U. PA. L. REV. 395, 460-63 (2008) (describing OIRA's use of prompt letters in the George W. Bush Administration).
61. Barack H. Obama, State of the Union Address (Jan. 27, 2010), available at http://www.whitehouse.gov/the-press-office/remarks-president-state-union-address ('With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests-including foreign corporations-to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems.' (referencing Citizens United v. FEC, 130 S. Ct. 376 (2010))). As this example makes clear, a prod or plea can implicate multiple branches simultaneously.
62. See infra Parts II & III.
63. See, e.g., Brown v. Plata, 131 S. Ct. 1910 (2011) (upholding a lower court order that in the next two years California must reduce its imprisoned population to 137.5 percent of prison design capacity, to rectify California's violation of the Eighth Amendment's prohibition against cruel and unusual punishment).
64. MALCOLM M. FEELEY & EDWARD L. RUBIN, JUDICIAL POLICY MAKING AND THE MODERN STATE: HOW THE COURTS REFORMED AMERICA'S PRISONS (1998) (describing how in the second half of the twentieth century, courts spurred prison reforms in many American jurisdictions by finding prison conditions to be in violation of the law-particularly the Eighth Amendment). This example demonstrates that some signals may be construed as calls for action or cessation of it-and thus as prods and pleas or as ordinary checks and balances-depending upon how one frames the relevant background conditions.
65. Some observers see the Ninth Circuit as regularly prodding the Supreme Court in this manner.
66. John Schwartz, 'Liberal' Reputation Precedes Ninth Circuit Court, N.Y. TIMES, Apr. 24, 2010, http://www.nytimes.com/2010/04/25/us/25sfninth.html ('Those who criticize the court say the best evidence for their argument is the Supreme Court, which overturns the decisions of the Ninth more often than those of any other circuit.'). Similarly, a justice may issue an oral dissent in order to draw wider attention to the perceived failings of a majority opinion.
67. Lani Guinier, The Supreme Court: 2007 Term-Foreword: Demosprudence Through Dissent, 122 HARV. L. REV. 4 (2008).
68. See supra text accompanying notes 10-12;
69. Frederic M. Bloom, State Courts Unbound, 93 CORNELL L. REV. 501 (2008) (providing examples of cases in which state courts flout binding Supreme Court precedent).
70. Illicit drug policy is one context in which the legislative and executive branches of the federal government have used an array of powerful levers to spur state prohibition enforcement efforts in line with the basic federal agenda. Some states have pushed back through defiant policies-such as medical marijuana distribution systems-that may be understood in part as efforts to spur the federal government out of inertia and into addressing the harms caused by its own prohibition enforcement efforts.
71. Michael M. O'Hear, Federalism and Drug Control, 57 VAND. L. REV. 783, 806-52 (2004) (describing mechanisms of federal influence over the states and states' reassertions of their authority in the area of drug policy).
72. On the checks and balances side, consider the filibuster. Many have portrayed its increasing use in the Senate as a fundamental instantiation of checks and balances. Others have argued that the Senate's electoral composition already does plenty to make it a cooling body, and modern use of the filibuster is not a deeply rooted structure of American government but a contemporary perversion of the Senate's constitutional authority to determine its internal rules-an authority it now exploits to impose precisely the factionalism as against the public good that the Founders abhorred.
73. Michael Tomasky, The Specter Haunting the Senate, N.Y. REV. BOOKS, Sept. 30, 2010, at 22 (reviewing SARAH A. BINDER & STEVEN S. SMITH, POLITICS OR PRINCIPLE?: FILIBUSTERING IN THE UNITED STATES SENATE (1997); and GREGORY KOGER, FILIBUSTERING: A POLITICAL HISTORY OF OBSTRUCTION IN THE HOUSE AND THE SENATE (2010)).
74. Dorf and Sabel, supra note 5.
75. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
76. Dorf and Sabel, supra note 5, at 445 (predicting that 'democracy [will] increasingly come[] to mean decentralized, direct deliberation');
77. Charles F. Sabel & William H. Simon, Minimalism and Experimentalism in the Administrative State, 100 GEO. L.J. (forthcoming 2011) (manuscript at 31), available at http://ssrn.com/abstract=1600898 ('Experimentalismcombines decentralization of operative control with central coordination of the evaluation of results.').
78. On the need for 'quickening' of politics, see ROBERTO MANGABEIRA UNGER, THE SELF AWAKENED: PRAGMATISM UNBOUND 59-60 (2007).
79. For the canonical articulation of this view,
80. CARL SCHMITT, POLITICAL THEOLOGY: FOUR CHAPTERS ON THE CONCEPT OF SOVEREIGNTY (George Schwab trans., Univ. of Chi. Press 2005) (rev. ed. 1934).
81. The temptation to avoid confronting such stark challenges is strong. As Justice Scalia impatiently asked counsel for petitioners in Massachusetts v. EPA, the Court's first direct engagement with the problem of climate change, '[W]hen is the predicted cataclysm?' Transcript of Oral Argument at 5, Massachusetts v. EPA, 549 U.S. 497 (2007) (No. 05-1120), available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/05-1120.pdf;
82. Heinzerling and Ackerman, supra note 6, at 335 (discussing Massachusetts v. EPA). Consider also Justice Scalia's forceful-and perhaps a bit wishful-rejection of the risks of genetic contamination and dispersion of genetically modified alfalfa: 'This isn't contamination of the New York City water supply. This is not the end of the world. It really isn't.' Transcript of Oral Argument at 42-43, Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743 (2010) (No. 09-475), 2010 WL 1686195. Like most of us, the Justice seems uncomfortable with a world of stochastic processes and possibly extreme outcomes; hence his desire for precise predictions and definitive risk assessments. Unfortunately, governance cannot await their arrival.
83. On these dynamics,
84. Bruce Ackerman, THE DECLINE AND FALL OF THE AMERICAN REPUBLIC (2010).
85. See supra note 29 and accompanying text.
86. As one commentator argues, the political landscape leads to an 'undersupply [of] disaster preparation policies' and an 'oversupply of ex post relief.'
87. Ben Depoorter, Horizontal Political Externalities: The Supply and Demand of Disaster Management, 56 DUKE L.J. 101, 104 (2006).
88. Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005), vacated, 582 F.3d 309 (2d Cir. 2009), rev'd and remanded, 131 S. Ct. 2527 (2011).
89. 582 F.3d 309.
90. 131 S. Ct. 2527.
91. Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal.), appeal docketed, No. 09-17490 (9th Cir. Nov. 5, 2009).
92. Comer v. Murphy Oil USA, Inc., No. 1:05 CV-436-LG-RHW, 2007 WL 6942285 (S.D. Miss. Aug. 30, 2007), rev'd, 585 F.3d 855 (5th Cir. 2009), vacated and reh'g en banc granted, 598 F.3d 208 (5th Cir. 2010), appeal dismissed, 607 F.3d 1049 (5th Cir. 2010) (declining to reinstate the panel opinion).
93. The procedural history of Comer bears noting, as it reflects perhaps the opposite extreme of the attitude of judicial candor and engagement for which we advocate. Initially, an appellate panel partially vacated and reversed the district court's grant of summary judgment for reasons quite similar to the Second Circuit's decision in American Electric Power Co. After having agreed to rehear the appeal en banc, the Fifth Circuit then lost its quorum after numerous judges recused themselves-Primarily, it is reported, because of financial connections to the oil industry.
94. Nan Aron, The Corporate Courts: Fifth Circuit Judges Are Marinating in Oil, HUFFINGTON POST (July 7, 2010, 5:37 PM), http://www.huffingtonpost.com/nan-aron/the-corporate-courts-fift_b_638591.html. Rather than reinstate the appellate panel opinion, five remaining judges on the Fifth Circuit decided to reinstate the original district court ruling that had dismissed the case, reasoning that the en banc panel no longerhad jurisdiction to take any other action. Comer, 607 F.3d 1049. Finally, the Supreme Court denied without comment plaintiffs' request for a writ of mandamus setting aside the en banc panel's ruling, effectively terminating the proceedings.
95. See In re Ned Comer, 131 S. Ct. 902 (2011). The only saving grace in this saga may come in the form of a recently proposed change to the Fifth Circuit Rules that will prevent repeat episodes in the future.
96. United States Court of Appeals for the Fifth Circuit, Notice of Proposed Amendment to 5th Cir. R. 41.3, available at http://www.ca5.uscourts.gov/news/news/413pubcmt2011.pdf.
97. California v. Gen. Motors Corp., No. C06-05755, 2007 WL 2726871, at *1 (N.D. Cal. Sept. 17, 2007) (granting motion to dismiss).
98. Unopposed Motion to Dismiss Appeal, California v. Gen. Motors Corp., No. 07-16908 (9th Cir. June 19, 2009).
99. Ronald H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960).
100. Indeed, at virtually every stage of the traditional doctrinal analysis, climate change plaintiffs will need to invoke novel, rare, or otherwise exceptional tort doctrines in order to pursue their claims.
101. Kysar, supra note 13.
102. Sindell V. Abbott Labs., 607 P.2d 924, 936-38 (Cal. 1980).
103. Matsuyama V. Birnbaum, 890 N.E.2d 819, 828 n.23 (Mass. 2008) (joining '[t]he highest courts of at least twenty States and the District of Columbia [which] have adopted the loss of chance doctrine').
104. Jane Stapleton, The Two Explosive Proof-of-Causation Doctrines Central to Asbestos Claims, 74 BROOK. L. REV. 1011 (2009).
105. David A. Grossman, Warming Up to a Not-So-Radical Idea: Tort-Based Climate Change Litigation, 28 COLUM. J. ENVTL. L. 1, 61 (2003) ('[S]ome tort-based climate change suits have strong legal merits and may be capable of succeeding.')
106. Matthew F. Pawa, Global Warming: The Ultimate Public Nuisance, 39 ENVTL. L. REP. 10,230 (2009)
107. Matthew F. Pawa & Benjamin A. Krass, Global Warming as a Public Nuisance: Connecticut v. American Electric Power, 16 FORDHAM ENVTL. L. REV. 407 (2005).
108. For an early and thoughtful article linking tort law and climate change,
109. Eduardo M. Peñalver, Acts of God or Toxic Torts? Applying Tort Principles to the Problem of Climate Change, 38 NAT. RESOURCES J. 563 (1998). For additional, more recent contributions,
110. Shi-Ling Hsu, A Realistic Evaluation of Climate Change Litigation Through the Lens of a Hypothetical Lawsuit, 79 U. COLO. L. REV. 701 (2008)
111. David Hunter & James Salzman, Negligence in the Air: The Duty of Care in Climate Change Litigation, 155 U. PA. L. REV. 1741 (2007)
112. Thomas W. Merrill, Global Warming as a Public Nuisance, 30 COLUM. J. ENVTL. L. 293 (2005).
113. Perhaps the most thorough discussion of this auxiliary role appears in David B. Hunter, The Implications of Climate Change Litigation: Litigation for International Environmental Law- Making, in ADJUDICATING CLIMATE CHANGE: STATE, NATIONAL, AND INTERNATIONAL APPROACHES 357 (William C.G. Burns & Hari M. Osofsky eds., 2009).
114. William W. Buzbee, Asymmetrical Regulation: Risk, Preemption, and the Floor/Ceiling Distinction, 82 N.Y.U. L. REV. 1547, 1617 (2007) (portraying climate change litigation as part of a complex solution to a complex set of problems posed by the accumulation of greenhouse gases including 'multiplicity of sources, varied risks and harms in different locations, changing science and engineering, and an array of scale challenges')
115. Kirsten H. Engel, Harmonizing Regulatory and Litigation Approaches to Climate Change Mitigation: Incorporating Tradable Emissions Offsets into Common Law Remedies, 155 U. PA. L. REV. 1563, 1565 (2007) (arguing that climate change nuisance litigation might afford relief 'in a manner that could possibly jumpstart an emissions trading regime [and thereby] make the best use of this intermediate time period during which Congress is considering the enactment of a [greenhouse gas] emissions cap-and-trade program but has yet to amass the consensus needed for such a program to become law')
116. Alice Kaswan, The Domestic Response to Global Climate Change: What Role for Federal, State, and Litigation Initiatives?, 42 U.S.F. L. REV. 39, 100 (2007) ('While legislatures are locked in political paralysis, the courts must respond to the cases before them.')
117. Amelia Thorpe, Tort-Based Climate Change Litigation and the Political Question Doctrine, 24 J. LAND USE & ENVTL. L. 79, 103-04 (2008) Shaping the nature of the debate.').
118. These discussions occur against the backdrop of a more generalliterature on the role of courts in fostering social change. Compare Gerald N. Rosenberg, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (2d ed. 2008),
119. Michael J. Klarman, Brown, Racial Change, and the Civil Rights Movement, 80 VA. L. REV. 7 (1994) (arguing that little evidence supports the view that courts effectively bring about social change),
120. JOEL F. Handler, SOCIAL MOVEMENTS AND THE LEGAL SYSTEM (1978)
121. Michael W. Mccann, RIGHTS AT WORK (1994),
122. Michael W. McCann, How Does Law Matter for Social Movements?, in HOW DOES LAW MATTER? 76 (Bryant G. Garth & Austin Sarat eds., 1998) (offering arguments that courts and litigation aid social change by, inter alia, helping movements to mobilize, gain bargaining power, articulate counter-norms and narratives, and influence public opinion).
123. E. Donald Elliott, Bruce A. Ackerman & John C. Millian, Toward a Theory of Statutory Evolution: The Federalization of Environmental Law, 1 J.L. ECON. & ORG. 313, 331-33 (1985) (summarizing the passage of the Air Quality Act of 1967).
124. For instance, when the Clinton Administration established a voluntary Holocaust reparations compensation scheme with European insurance companies, it specifically declined to preempt common law tort suits, promising only to encourage courts to dismiss them as a discretionary matter.
125. Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 406 (2003)
126. Kysar & Meyler, supra note 10, at 1640. Thus, there is considerable irony in the Second Circuit's decision to dismiss on political question grounds a putative class action suit arising out of Holocaust-related property deprivation.
127. Whiteman V. Dorotheum GmbH & Co., 431 F.3d 57 (2d Cir. 2005). The very executive agreement to which the panel deferred might not have been created had it not been for the pressure of looming tort litigation.
128. Cf. id. at 75- 83 (Straub, J., dissenting) (arguing that the majority's decision inadvisably ceded judicial authority by using the political question doctrine when discretionary doctrines such as comity could have achieved the same result).
129. Timothy D. Lytton, Using Tort Litigation To Enhance Regulatory Policy Making: Evaluating Climate-Change Litigation in Light of Lessons from Gun-Industry and Clergy-Sexual-Abuse Lawsuits, 86 TEX. L. REV. 1837 (2008).
130. Protection of Lawful Commerce in Arms Act, Pub. L. No. 109-92, 119 Stat. 2095 (2005) (codified at 15 U.S.C. §§ 7901-03 (2006)) (immunizing gun manufacturers and sellers and their trade associations from liability for most civil actions based on the 'criminal or unlawful misuse' of firearms)
131. Alexandra B. Klass, Tort Experiments in the Laboratories of Democracy, 50 WM. & MARY L. REV. 1501-1504 (2009) (observing a growing conferral by Congress of tort immunity without accompanying compensatory schemes)
132. Lytton, supra note 73, at 1843-49.
133. Gerald W. Boston & M. Stuart Madden, LAW OF ENVIRONMENTAL AND TOXIC TORTS 41 (2d ed. 2001) ('Nuisance can fill the inevitable interstices of an ever expanding regulatory system. Long-lived and adaptable, public nuisance is the common-law equivalent of a species blessed with opposable thumbs.' (quoting James A. Sevinsky, Public Nuisance: A Common-Law Remedy Among the Statutes, 5 NAT. RESOURCES & ENV'T 29 (1990)))
134. Donald G. Gifford, Public Nuisance as a Mass Products Liability Tort, 71 U. CIN. L. REV. 741, 804 (2003) ('State legislatures [in the nineteenth and early twentieth centuries], particularly during times of economic and industrial transformation, could not anticipate and explicitly prohibit or regulate through legislation all the particular activities that might injure or annoy the general public. In a legal regime in which regulation was the exception and not the rule, public nuisance was a principal 'stopgap' measure.').
135. Goldberg and Zipursky, Have elaborated upon this idea both individually and together.
136. John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 YALE L.J. 524 (2005)
137. John C.P. Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 TEX. L. REV. 917 (2010)
138. Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice, 91 GEO. L.J. 695 (2003) [hereinafter Zipursky, Civil Recourse]
139. Benjamin C. Zipursky, Rights, Wrongs, and Recourse in the Law of Torts, 51 VAND. L. REV. 1 (1998) [hereinafter Zipursky, Rights, Wrongs].
140. John C.P. Goldberg, The Constitutional Status of Tort Law, 115 YALE L.J. POCKET PART 26-28 (2005), http://yalelawjournal.org/images/pdfs/24.pdf (discussing the traditional and arguably constitutionally necessitated role of the courts as custodians of a body of private law that 'identifies duties not to injure that citizens owe to one another, and, at least in principle. arms each beneficiary of such a duty with the power to demand redress from one who has breached it').
141. John H. Bauman, Remedies Provisions in State Constitutions and the Proper Role of the State Courts, 26 WAKE FOREST L. REV. 237 (1991)
142. Jonathan M. Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions, 74 OR. L. REV. 1279 (1995)
143. David Schuman, The Right to a Remedy, 65 TEMP. L. REV. 1197 (1992).
144. Goldberg, supra note 76, at 559-83.
145. Goldberg & Zipursky, supra note 76, at 982. We must acknowledge that this picture is somewhat out of sync with the contemporary prevalence of settlement, the decline of adjudication, and the rising self-conception of the federal judiciary in bureaucratic, politicized terms as opposed to rights-oriented terms.
146. Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459 (2004)
147. Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 HARV. L. REV. 924 (2000). In our view, these developments only underscore the importance of recalling and revitalizing the traditional role of open courts within our structure of limited government, at least so long as more wholesale change to that structure is not in the cards.
148. Consider the case of Barasich v. Columbia Gulf Transmission Co., in which a putative class of Louisiana landowners sued several oil and gas companies for exploration, pipeline, and shipping activities that left residents more vulnerable to property damage from wind and storm surge during Hurricanes Katrina and Rita. 467 F. Supp. 2d 676 (E.D. La. 2006). The court dismissed plaintiffs' trespass and nuisance claims, but also recognized the significance of coastal erosion and invited plaintiffs to re-plead with a narrower, more carefully constituted class.
149. Id. at 695.
150. A prominent historical example is the tort system's inability to grapple with the industrial accident crisis of the late nineteenth and early twentieth centuries.
151. John Fabian Witt, THE ACCIDENTAL REPUBLIC: CRIPPLED WORKINGMEN, DESTITUTE WIDOWS, AND THE REMAKING OF AMERICAN LAW (2004) (discussing the rise of America's workers' compensation systems).
152. Robert A. Kagan, ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW (2001).
153. Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 394-404 (1978) (introducing and explaining the concept of a 'polycentric' task).
154. Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976) (articulating and defending an emerging conception of adjudication as 'public law litigation')
155. Theodore Eisenberg & Stephen C. Yeazell, The Ordinary and the Extraordinary in Institutional Litigation, 93 HARV. L. REV. 465 (1980) (documenting a long and seemingly successful history of institutional litigation that Fuller might have described as 'polycentric' and therefore not amenable to adjudication)
156. Hershkoff, supra note 22, at 1910 & n.404 (gathering support for the proposition that the Anglo-American tradition of government has never been characterized by 'a clear institutional distinction between adjudication and legislation').
157. Lawrence M. Friedman, TOTAL JUSTICE 5 (1985) (arguing that changes in American society and legal culture gradually gave rise to 'a general expectation of justice, and a general expectation of recompense for injuries and loss' that together constituted a demand for 'total justice').
158. Kagan, supra note 83, at 40 ('Americans have attempted to articulate and implement the socially transformative policies of an activist, regulatory welfare state through the politicaland legal institutions of a decentralized, nonhierarchical governmental system.'). Mirjan Damas ̌ka made essentially the same observation much earlier: 'The rise into prominence of American public interest litigation is not only a product of moderate activist impulses; it is also intimately linked to a governmental structure in which authority is widely distributed.'
159. Mirjan R. Damaška, THE FACES OF JUSTICE AND STATE AUTHORITY: A COMPARATIVE APPROACH TO THE LEGAL PROCESS 238 (1986).
160. Thomas E. Mann & Norman J. Ornstein, THE BROKEN BRANCH: HOW CONGRESS IS FAILING AMERICA AND HOW TO GET IT BACK ON TRACK 10 (2006) (noting that the filibuster, previously invoked only cautiously and against legislation of unusual importance, became, by the 1980s, a regular threat to the passage of bills). For a thorough review of this and other institutional barriers to efficacy facing Congress,
161. Rena Steinzor & Sidney Shapiro, THE PEOPLE'S AGENTS AND THE BATTLE TO PROTECT THE AMERICAN PUBLIC (2010).
162. In Lawrence Friedman's view, it is not so much self-conscious reorientations of political philosophy as our new 'dependence, in an extraordinary way, on total strangers,' and feelings of control and security brought about by related advances in science and technology, that have made us come to expect 'total justice.'
163. Lawrence M. Friedman, Total Justice: Law, Culture, and Society, 40 BULL. AM. ACAD. ARTS & SCI. 24, 29-31 (1986).
164. Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212 (1978).
165. See id. at 1213-20 (distinguishing between 'reasons for limiting a judicial construct of a constitutional concept which are based upon questions of propriety or capacity and those which are based upon an understanding of the concept itself' and providing examples of the former).
166. Arthur Ripstein, The Division of Responsibility and the Law of Tort, 72 FORDHAM L. REV. 1811, 1832-33 (2004) (arguing that liberty and security might be reconciled in tort law by protecting individuals from interferences that deprive them of primary goods, assuming that the category of primary goods could be unproblematically defined and agreed upon).
167. Sager, supra note 90, at 1221.
168. Gregory C. Keating, Is Tort a Remedial Institution? (Univ. of S. Cal. Ctr. in Law, Econ., and Org., Working Paper No. 10-11, 2010), http://ssrn.com/abstract=1633687.
169. Jules Coleman, RISKS AND WRONGS (2002)
170. Ernest J. Weinrib, THE IDEA OF PRIVATE LAW (1995)
171. Stephen R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 449 (1992).
172. Arthur Ripstein, EQUALITY, RESPONSIBILITY, AND THE LAW (1999).
173. Scott Hershovitz, Harry Potter and the Trouble with Tort Theory, 63 STAN. L. REV. 67 (2010)
174. Jason M. Solomon, Equal Accountability Through Tort Law, 103 NW. U. L. REV. 1765 (2009).
175. Allen V. Wright, 468 U.S. 737-750 (1984) (quoting Vander Jagt v. O'Neill, 699 F.2d 1166, 1178-79 (D.C. Cir. 1983) (Bork, J., concurring) (internal quotation marks omitted)). As we explore in Part IV, the notion that courts are somehow emphatically 'unrepresentative' is misleading-both because the Founders perceived all branches as in some sense unrepresentative of 'We the People' during ordinary lawmaking, and, relatedly, because American courts are by history and institutional design notable for their relatively nonhierarchical, nonbureaucratic, and democratically responsive nature.
176. Comer v. Murphy Oil USA, Inc., 585 F.3d 855, 873 (5th Cir. 2009), rev'g No. 1:05 CV-436-LG-RHW, 2007 WL 6942285 (S.D. Miss. Aug. 30, 2007), vacated and reh'g en banc granted, 598 F.3d 208 (5th Cir. 2010), appeal dismissed, 607 F.3d 1049 (5th Cir. 2010) (declining to reinstate the panel opinion).
177. Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 871-77, 883 (N.D. Cal.), appeal docketed, No. 09-17490 (9th Cir. Nov. 5, 2009)
178. California v. Gen. Motors Corp., No. C06-05755 MJJ, 2007 WL 2726871, at *5-16 (N.D. Cal. Sept. 17, 2007); Comer, 2007 WL 6942285
179. Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 271-74 (S.D.N.Y. 2005), vacated, 582 F.3d 309 (2d Cir. 2009), rev'd and remanded, 131 S. Ct. 2527 (2011).
180. 369 U.S. 186, 217 (1962). In Baker, the Court laid out a broad set of six factors, any one of which, if 'inextricable from the case at bar,' renders the case nonjusticiable: [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 decidingwithout 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. A plurality of the Court has suggested that the Baker factors 'are probably listed in descending order of both importance and certainty.' Vieth v. Jubelirer, 541 U.S. 267, 278 (2004) (plurality opinion). For a valuable overview of the history and status of the political question doctrine,
181. Rachel E. Barkow, More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy, 102 COLUM. L. REV. 237 (2002).
182. Am. Elec. Power Co., 582 F.3d at 331.
183. Barasich V. Columbia Gulf Transmission Co., 467 F. Supp. 2d 676-688 (E.D. La. 2006) (rejecting the argument that a tort suit alleging that defendants' destruction of coastal wetlands contributed to Hurricane Katrina storm damage presented a nonjusticiable political question, noting that 'the mere fact that the government has studied the issue of coastal wetlands loss in Louisiana creates no conflict with judicial involvement in this lawsuit').
184. Goldwater V. Carter, 444 U.S. 996-998 (1979) (Powell, J., concurring in the judgment).
185. Comer, 585 F.3d at 873 (quoting McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1364 (11th Cir. 2007))
186. Am. Elec. Power Co., 582 F.3d at 325 ('[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.' (alterations in original) (quoting Me. People's Alliance & Natural Res. Def. Council v. Mallinckrodt, Inc., 471 F.3d 277, 286 (1st Cir. 2006)))
187. Lane V. Halliburton, 529 F.3d 548-560 (5th Cir. 2008) ('[W]hen faced with an 'ordinary tort suit,' the textual commitment factor actually weighs in favor of resolution by the judiciary.')
188. Koohi V., United States, 976 F.2d 1328-1332 (9th Cir. 1992) (noting that '[d]amages actions are particularly judicially manageable')
189. McKay V. United States, 703 F.2d 464-470 (10th Cir. 1983) ('[T]he political question theory and the separation of powers doctrines do not ordinarily prevent individual tort recoveries.').
190. Richard O. Faulk, Uncommon Law: Ruminations on Public Nuisance, 18 MO. ENVTL. L. & POL'Y REV. 1 (2010)
191. Richard O. Faulk & John S. Gray, Alchemy in the Courtroom? The Transmutation of Public Nuisance Litigation, 2007 MICH. ST. L. REV. 941, 947-52
192. Victor E. Schwartz & Phil Goldberg, The Law of Public Nuisance: Maintaining Rational Boundaries on a Rational Tort, 45 WASHBURN L.J. 541-543 (2006).
193. City of Chicago v. Festival Theater Corp., 438 N.E.2d 159-162 (Ill. 1982).
194. In a damages action, for instance, liability may be premised on the judicially manageable basis that 'the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.' RESTATEMENT (SECOND) OF TORTS § 826(b) (1979). The general rules for public nuisance likewise focus on factors such as '[w]hether the conduct involves a significant interference with the public health, the public safety, the public peace, the publiccomfort or the public convenience,' or 'whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.' Id. § 821B(2)(a), (c).
195. id. § 821C
196. J. Peter Mulhern, In Defense of the Political Question Doctrine, 137 U. PA. L. REV. 97, 165-66 (1988) ('Courts need not treat every issue that falls outside their sphere as a political question; they have other devices for marking the boundaries of their primary sphere of responsibility.').
197. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 36 (Proposed Final Draft No. 1, 2005) ('When an actor's negligent conduct constitutes only a trivial contribution to a causal set that is a factual cause of harm,' there is no liability)
198. RESTATEMENT (SECOND) OF TORTS § 834 cmt. d (1979) (noting with respect to public and private nuisance that '[w]hen a person is only one of several persons participating in carrying on an activity, his participation must be substantial before he can be held liable for the harm resulting from it'). Although these doctrines might not bear directly on a suit for injunctive relief, similar considerations can enter into the calculus of whether and how to issue an injunction.
199. Illinois ex rel. Scott v. City of Milwaukee, No. 72 C 1253, 1973 U.S. Dist. LEXIS 15607, at *22 (N.D. Ill. Nov. 1, 1973) (observing in dicta that '[t]here may be a discharge so small that, as a practical matter, it can be regarded as de minimis, even though as a logical matter it is still part of the whole')
200. Harley V. Merrill Brick Co., 48 N.W. 1000, 1002 (Iowa 1891) (noting in dicta that 'there might be a contribution to [a pollution nuisance] so slight and inconsequential that the law would not take notice of it')
201. RESTATEMENT (SECOND) OF TORTS § 941 cmts. a-f (outlining various equitable factors that go into assessing the 'relative hardships' to plaintiff and defendant that would flow from injunctive relief).
202. North Carolina ex rel. Cooper v. Tenn. Valley Auth., 615 F.3d 291-302 (4th Cir. 2010).
203. Id. at 309-10
204. New Eng. Legal Found. v. Costle, 666 F.2d 30, 33 (2d Cir. 1981) ('Courts traditionally have been reluctant to enjoin as a public nuisance activities which have been considered and specifically authorized by the government.')
205. RESTATEMENT (SECOND) OF TORTS § 821B cmt. f. ('Although it would be a nuisance at common law, conduct that is fully authorized by statute, ordinance or administrative regulation does not subject the actor to tort liability.').
206. Judicial self-limitation of this sort is not limited to environmental torts. Faced with a suit for reparations by descendants of African-American slaves, a federal district court similarly invoked the political question doctrine because it felt 'ill-equipped to determine many issues posed in a dispute covering a period of almost 400 years.' In re African-Am. Slave Descendants Litig., 304 F. Supp. 2d 1027, 1061 (N.D. Ill. 2004). But the court could as easily have addressed the issues of remoteness and attenuation through doctrines such as duty and proximate causation, thereby managing its institutional capacity without unnecessarily and undesirably abdicating its responsibility to uphold and apply tort law's normative principles.
207. City of Cleveland v. Ameriquest Mortg. Sec., Inc., 621 F. Supp. 2d 513, 520 (N.D. Ohio 2009) ('Even if not preempted by state law, however, the City's claim fails as a matter oflaw on several other grounds. The Court turns to the substance of the public nuisance claim to address these additional bases for dismissal.').
208. Id. at 530.
209. 615 F.3d 291.
210. Goldberg & Zipursky, supra note 76, at 921-25.
211. Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 272 (S.D.N.Y. 2005) (emphasis added), vacated, 582 F.3d 309 (2d Cir. 2009), rev'd and remanded, 131 S. Ct. 2527 (2011).
212. In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 438 F. Supp. 2d 291, 304 (S.D.N.Y. 2006) (emphasis added and omitted).
213. Eric A. Posner, Tobacco Regulation or Litigation?, 70 U. CHI. L. REV. 1141, 1155-57 (2003) (reviewing W. KIP VISCUSI, SMOKE-FILLED ROOMS: A POSTMORTEM ON THE TOBACCO DEAL (2002)).
214. Id. at 1155.
215. Any extreme scenarios in which courts have applied the political question doctrine to a common law suit are the exceptions that prove the rule. In Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir. 2007), plaintiffs pressed a negligent entrustment theory against the manufacturer of demolition equipment that had been used by Israel Defense Forces to destroy homes in Palestinian Territories. Because the equipment in question had actually been purchased by the U.S. government on Israel's behalf as part of U.S. foreign policy, the court concluded that the suit presented a nonjusticiable political question.
216. Id. at 983.
217. Even inthat case, however, the court could as easily have held that sponsorship of the sale by the political branches rendered the activity not unreasonable and therefore nontortious as a matter of law.
218. W. Page Keeton et al., PROSSER AND KEETON ON THE LAW OF TORTS § 86, at 616 (5th ed. 1984) (referring to the law of nuisance as an 'impenetrable jungle').
219. Native Vill. Of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 877 n.4 (N.D. Cal.), appeal docketed, No. 09-17490 (9th Cir. Nov. 5, 2009).
220. In Strauss v. Belle Realty Co., 482 N.E.2d 34 (N.Y. 1985), the New York Court of Appeals shielded Consolidated Edison from liability to a plaintiff who was injured from a stairway fall during the 1977 electricity blackout in New York City. Despite the acknowledged gross negligence of Consolidated Edison and despite the ready foreseeability of plaintiff and his injury in relation to such conduct, the court nevertheless stressed its 'responsibility to define an orbit of duty that places controllable limits on liability.'
221. Id. at 38.
222. Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, 'Injuries,' and Article III, 91 MICH. L. REV. 163, 193-95 (1992).
223. Simonv E. K. Y. Welfare Rights Org., 426 U.S. 26, 41-42 (1976).
224. United States v. Richardson, 418 U.S. 166, 192 (1974) (Powell, J., concurring).
225. Lujan V. Defenders of Wildlife, 504 U.S. 555, 577 (1992) (noting that standing doctrine is necessary to avoid allowing 'Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to 'take Care that the Laws be faithfully executed'' (quoting U.S. CONST. art. II, § 3)).
226. Contemporary Supreme Court standing jurisprudence revolves around Lujan v. Defenders of Wildlife, in which Justice Scalia, writing for the Court, articulated a tripartite set of requirements for establishing the 'irreducible constitutional minimum of standing': First, the plaintiff must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly. trace[able] to the challenged action of the defendant, and not. th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. 504 U.S. at 560-61 (citations and internal quotation marks omitted) (alterations in original). Alongside the basic Lujan test for Article III standing, the Court has also erected a yet hazier doctrine of so-called 'prudential standing,' which it has 'not exhaustively defined' but which 'encompasses 'the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked.'
227. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).
228. The vacated Fifth Circuit panel opinion in Comer gathers extensive support for the idea that private common law claims have long been presumed to confer standing on their holders. Comer v. Murphy Oil USA, Inc., 585 F.3d 855, 863 n.3 (5th Cir. 2009) (citing authorities), vacated and reh'g en banc granted, 598 F.3d 208 (5th Cir. 2010), appeal dismissed, 607 F.3d 1049 (5th Cir. 2010)
229. Erwin Chemerinsky, FEDERAL JURISDICTION 69 (5th ed. 2007) ('Injury to rights recognized at common law-property, contracts, and torts-[is] sufficient for standing purposes.')
230. Charles Alan Wright & Mary Kay Kane, LAW OF FEDERALCOURTS 69 (6th ed. 2002) ('The law of standing is almost exclusively concerned with public-law questions involving determinations of constitutionality.').
231. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000) (rejecting such an attempt 'to raise the standing hurdle higher than the necessary showing for success on the merits').
232. Fed. Elections Comm'n v. Akins, 524 U.S. 11, 23 (1998) ('[W]here large numbers of Americans suffer alike, the political process, rather than the judicial process, may provide the more appropriate remedy for a widely shared grievance.')
233. Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 80 (1978) ('[W]e have declined to grant standing where the harm asserted amounts only to a generalized grievance shared by a large number of citizens in a substantially equal measure.').
234. Massachusetts V. Epa, 549 U.S. 497, 522 (2007) ('That these climate-change risks are 'widely shared' does not minimize Massachusetts' interest in the outcome of this litigation.')
235. Akins, 524 U.S. at 24 (stating in dicta that 'a widespread mass tort' would not'automatically disqualify an interest for Article III purposes')
236. Lujan, 504 U.S. at 581 (Kennedy, J., concurring in part and concurring in the judgment) ('While it does not matter how many persons have been injured by the challenged action, the party bringing suit must show that the action injures him in a concrete and personal way.').
237. 520 S. Mich. Ave. Assocs. v. Devine, 433 F.3d 961, 962 (7th Cir. 2006) (stating that '[s]tanding depends on the probability of harm, not its temporal proximity').
238. Compare Laidlaw, 528 U.S. at 184 (deeming 'reasonable' plaintiffs' decision to refrain from recreational use of a waterway following 'a company's continuous and pervasive illegal discharges of pollutants' despite lack of evidence showing actual harm or health risk), with Los Angeles v. Lyons, 461 U.S. 95, 107 n.8 (1983) (finding no injury-in-fact from plaintiff's 'subjective apprehensions' of future harm from a police chokehold policy though he had already been subjected to a harmful chokehold once). In the more recent case of Summers v. Earth Island Institute, Justice Scalia rather decisively rejected the idea of probabilistic injury in the organizational standing context. 129 S. Ct. 1142, 1151 (2009). Earlier decisions in the D.C. Circuit Court of Appeals had accepted standing if a plaintiff organization could show a statistical likelihood that some of its members would suffer a concrete harm, even though the precise identity of the victims could not be established ex ante.
239. Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin. (Public Citizen I), 489 F.3d 1279 (D.C. Cir. 2007), modified on reh'g, 513 F.3d 234 (D.C. Cir. 2008)
240. Natural Res. Def. Council v. EPA, 440 F.3d 476 (D.C. Cir.), withdrawn, 464 F.3d 1 (D.C. Cir. 2006). For discussion of these cases,
241. Bradford Mank, Standing and Statistical Persons: A Risk-Based Approach to Standing, 36 ECOLOGY L.Q. 665 (2009). Whether the skepticism toward probabilistic injury displayed by the Summers majority will be carried over beyond the organizational standing context is uncertain.
242. In Florida Audubon Society v. Bentsen, 94 F.3d 658, 665-72 (D.C. Cir. 1996), the court formulated a strict test that requires, inter alia, a 'substantial probability' of harm for standing purposes.
243. Public Citizen I, 489 F.3d at 1296 (requiring a 'very strict understanding of what increases in risk and overall risk levels. count as 'substantial''). More recently, the D.C. Circuit has signaled a strong desire to jettison increased-risk standing altogether.
244. Cassandra Sturkie & Suzanne Logan, Further Developments in the D.C. Circuit's Article III Standing Analysis: Are Environmental Cases Safe from the Court's Deepening Skepticism of Increased-Risk-of-Harm Claims?, 38 ENVTL. L. REP. 10,460 (2008). AsJudge Sentelle put it, 'If we do not soon abandon th[e] idea of probabilistic harm, we will find ourselves looking more and more like legislatures rather than courts.' Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin. (Public Citizen II), 513 F.3d 234, 242 (D.C. Cir. 2008) (Sentelle, J., concurring in the judgment). The Eighth Circuit also has dismissed a probabilistic standing claim; if followed, the dismissal would render many climate change risks inadequate to support standing.
245. Shain V. Veneman, 376 F.3d 815, 818 (8th Cir. 2004) (holding that 'the occurrence of a 100-year flood is by definition speculative and unpredictable' and therefore insufficient to confer standing on plaintiffs who wished to challenge the location of sewage retention lagoons on a flood plain).
246. Baur V. Veneman, 352 F.3d 625, 633 (2d Cir. 2003) (gathering sources).
247. Id. at 635
248. Jerry L. Mashaw, 'Rights' in the Federal Administrative State, 92 YALE L.J. 1129, 1168 (1983) (noting case law suggesting that 'increased risk will satisfy the requirement of injury in fact, at least where the statutory scheme that gives rise to the complaint is itself essentially concerned with restructuring risks').
249. 521 U.S. 424 (1997).
250. Lee A. Albert, Standing To Challenge Administrative Action: An Inadequate Surrogate for Claim for Relief, 83 YALE L.J. 425, 441-42 (1974).
251. Lujan V. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). When causation and redressability hinge on the choices and behaviors of 'independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,' then the claimant must 'adduce facts showing that those [third-party] choices have been or will be made in such manner as to produce causation and permit redressability of injury.
252. Id. at 562 (quoting ASARCO, Inc. v. Kadish, 490 U.S. 605, 615 (1989)).
253. Kysar, supra note 13, at 50. In Connecticut v. American Electric Power Co., for example, the plaintiffs emphasize that defendants are 'the five largest emitters of carbon dioxide in the United States,' 582 F.3d 309, 345 (2d Cir. 2009) (quoting Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 268 (S.D.N.Y. 2005)), rev'd and remanded, 131 S. Ct. 2527 (2011), but according to defendants' reframing, they 'allegedly account for [only] 2.5% of manmade carbon dioxide emissions.
254. Id. at 347 (citation omitted in original).
255. 549 U.S. 497, 524 (2007).
256. Am. Elec. Power Co., 582 F.3d at 346.
257. Id. at 349
258. id. at 346 ('Each of two or more persons whose tortious conduct is a legal cause of a single and indivisible harm to the injured party is subject to liability to the injured party for the entire harm.' (quoting RESTATEMENT (SECOND) OF TORTS § 875 (1979))).
259. The Second and Fifth Circuits have applied a substantial likelihood of causal contribution test to assess traceability for purposes of climate change tort litigants' standing, and both courts found the criterion satisfied.
260. Comer V. Murphy Oil USA, Inc., 585 F.3d 855, 866 (5th Cir. 2009), vacated and reh'g en banc granted, 598 F.3d 208 (5th Cir. 2010), appeal dismissed, 607 F.3d 1049 (5th Cir. 2010)
261. Am. Elec. Power Co., 582 F.3d at 346-47 (citing Pub. Interest Research Grp. of N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 72 (3d Cir. 1990)).
262. Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 879- 80 (N.D. Cal.) (rejecting the substantial likelihood of contribution approach and finding the traceability prong unmet), appeal docketed, No. 09-17490 (9th Cir. Nov. 5, 2009).
263. Lujan V. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (citing Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38, 43 (1976)).
264. Simon, 426 U.S. at 42.
265. Id. at 42-43.
266. Massachusetts v. EPA, 549 U.S. 497, 526 (2007)
267. cf. Ctr. for Biological Diversity v. U.S. Dep't of the Interior, 563 F.3d 466, 478-79 (D.C. Cir. 2009) (holding that the causal link between climate change and the government's offshore oil and gas lease program was 'too tenuous' to establish standing in light of the 'various different groups of actors not present in this case' whose decision and behaviors will affect whether harm results from the program).
268. Zipursky, Rights, Wrongs, supra note 76, at 4 (introducing and defining the notion of 'substantive standing' in the field of tort law).
269. Brief for the Tennessee Valley Authority as Respondent Supporting Petitioners at 14, Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527 (2011) (No. 10-174) (citing Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984))).
270. Id. at 9 (citing Newdow, 542 U.S. at 12 (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975))).
271. Citing Newdow, 542 U.S. at 12 (quoting Warth, 422 U.S. at 500)).
272. Zipursky, Rights, Wrongs, supra note 76, at 85.
273. Kansas V. Colorado, 185 U.S. 125, 144 (1902) (quoting Rhode Island v. Massachusetts, 37 U.S. 657, 726 (1838)). As Justice Holmes put it, When the States by their union made the forcible abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasi-sovereign interests; and the alternative to force is a suit in this court. Georgia v. Tenn. Copper Co., 206 U.S. 230, 237 (1907) (citing Missouri v. Illinois, 180 U.S. 208, 241 (1901));
274. Missouri, 180 U.S. at 241 ('Diplomatic powers and the right to make war having been surrendered to the general government, it was to be expected that upon the latter would be devolved the duty of providing a remedy.').
275. Judith Resnik & Julie Chi-hye Suk, Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty, 55 STAN. L. REV. 1921, 1923 (2003) (quoting Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002))
276. Alden v. Maine, 527 U.S. 706, 714 (1999) ('The federal system established by our Constitution. reserves to [the States] a substantial portion of the Nation's primary sovereignty, together with the dignity and essential attributes inhering in that status.').
277. 549 U.S. 497, 520 (2007);
278. id. at 518 ('We stress here. the special position and interest of Massachusetts. It is of considerable relevance that the party seeking review here is a sovereign State and not, as it was in Lujan, a private individual. Well before the creation of the modern administrative state, we recognized that States are not normal litigants for the purposes of invoking federal jurisdiction.'). Quasi-sovereign interests are 'not sovereign interests [such as power over entities within one's jurisdiction or recognition by othersovereigns], proprietary interests, or private interests pursued by the State as a nominal party. [but rather] a set of interests that the State has in the well-being of its populace.' Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 602 (1982).
279. Bradford Mank, Should States Have Greater Standing Rights Than Ordinary Citizens?: Massachusetts v. EPA's New Standing Test for States, 49 WM. & MARY L. REV. 1701, 1786 (2008);
280. Massachusetts v. EPA, 549 U.S. at 540 (Roberts, C.J., dissenting) ('It is not at all clear how the Court's 'special solicitude' for Massachusetts plays out in the standing analysis, except as an implicit concession that petitioners cannot establish standing on traditional terms.').
281. Snapp, 458 U.S. at 600. In Snapp, the Supreme Court noted that it first recognized '[t]hat a parens patriae action could rest upon the articulation of a 'quasi-sovereign' interest' in Louisiana v. Texas, 176 U.S. 1 (1900). Snapp, 458 U.S. at 602. Later that decade, in Missouri, 180 U.S. 208, and Georgia, 206 U.S. 230, the Court found that Missouri and Georgia had quasi-sovereign interests upon which to sue for the abatement of public nuisances. See generally Snapp, 458 U.S. at 603-05. For a thorough history of state standing, including discussion of the parens patriae doctrine, see Ann Woolhandler & Michael G. Collins, State Standing, 81 VA. L. REV. 387 (1995).
282. Snapp, 458 U.S. at 602.
283. Massachusetts v. EPA, 549 U.S. at 519, 520 n.17.
284. Id. at 519.
285. Id. at 520.
286. Id. at 521-26.
287. Indeed, in discussing the injury, the Court held that '[b]ecause the Commonwealth owns a substantial portion of the state's coastal property, it has alleged a particularized injury in its capacity as a landowner.' Id. at 522 (internal quotation marks omitted).
288. Id. at 548 (Roberts, C.J., dissenting).
289. 324 U.S. 439, 450 (1945) (citations omitted) (quoting Georgia v. Tenn. Copper Co., 206 U.S. 230, 237 (1907)).
290. Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 606 n.13 (1982).
291. Baker v. Carr, 369 U.S. 186, 204 (1962) ('Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing.').
292. Massachusetts v. EPA, 549 U.S. at 538 (Roberts, C.J., dissenting) (stating that '[f]ar from being a substitute for Article III injury, parens patriae actions raise an additional hurdle for a state litigant. Focusing on Massachusetts's interests as quasi-sovereign makes the required showing here harder, not easier.'). Compare id. (suggesting that states suing in their parens patriae capacity must demonstrate not only a quasi-sovereign interest distinct from a direct injury that satisfies Lujan, but also that its citizens' injuries themselves satisfy Article III standing requirements-following the test for organization standing), with Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 339 (2d Cir. 2009) ('Snapp did not require states suing as parens patriae to meet the test for organizational standing [but just] the opposite, i.e., that the individuals with adversely affected interests could not obtain relief via a private suit,' that the state interest be apart from its citizens', and that the injury 'affect a substantial segment of the population, not one individual.'), rev'd and remanded, 131 S. Ct. 2527 (2011).
293. Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 891 (1983);
294. Mark Tushnet, Law and Prudence in the Law of Justiciability: The Transformation and Disappearance of the Political Question Doctrine, 80 N.C. L. REV. 1203, 1215 (2002).
295. Thomas O. Sargentich, The Contemporary Assault on Checks and Balances, 7 WIDENER J. PUB. L. 231, 246 (1998) ('[A] core difficulty with [Scalia's] narrow approach to standing is that it does not discuss openly the different ways in which one often canunderstand [and characterize] the plaintiff's injury-in-fact. [Nor does it] deal directly with the checks and balances principle that is central to the theory of separation of powers.').
296. Kenneth Juan Figueroa, Note, Immigrants and the Civil Rights Regime: Parens Patriae Standing, Foreign Governments and Protection from Private Discrimination, 102 COLUM. L. REV. 408 (2002);
297. Cami Fraser, Note, Protecting Native Americans: The Tribe as Parens Patriae, 5 MICH. J. RACE & L. 665 (2000).
298. Serv. Emps. Int'l Union Health & Welfare Fund v. Philip Morris Inc., 249 F.3d 1068, 1073 (D.C. Cir.), cert. denied sub nom. Republic of Guatemala v. Tobacco Inst., Inc., 534 U.S. 994 (2001) (denying parens patriae standing to foreign nations to pursue conspiracy and fraud claims against tobacco manufacturers); Estados Unidos Mexicanos v. DeCoster, 229 F.3d 332, 336 (1st Cir. 2000) (denying Mexican government standing to enjoin employment discrimination against its nationals in the United States); Pfizer, Inc. v. Lord, 522 F.2d 612, 617-18 (8th Cir. 1975) (denying parens patriae standing to foreign governments to enforce the Sherman Act), cert. denied sub nom. Gov't of India v. Pfizer, Inc., 424 U.S. 950 (1976); State of São Paulo of Federative Republic of Brazil v. Am. Tobacco Co., 919 A.2d 1116, 1122 (Del. 2007) (holding that foreign nations do not have parens patriae standing to pursue tort claims against tobacco manufacturers seeking recovery for health costs incurred in treating citizens' tobacco-related illnesses).
299. Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 882 (N.D. Cal.), appeal docketed, No. 09-17490 (9th Cir. Nov. 5, 2009).
300. United States v. Wheeler, 435 U.S. 313, 323 (1978);
301. see also Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978) ('This aspect of tribal sovereignty, like all others, is subject to the superior and plenary control of Congress.').
302. The Supremacy Clause provides support for the existence of express preemption and some form of implied preemption (e.g., constitutional and federal law overriding state law where it is physically impossible to comply with both, or where there is some other sufficient measure of conflict).
303. Wyeth v. Levine, 129 S. Ct. 1187, 1208 (2009) (Thomas, J., concurring in the judgment). However, the Clause hardly suggests the expansive tests of implied obstacle preemption (i.e., 'where state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,'' Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992) (quoting Hines v. Davidowitz, 312U.S. 52, 67 (1941))), and field preemption (i.e., where a federal regulatory regime is 'so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,' Gade, 505 U.S. at 98 (quoting Fid. Fed. Sav. & Loan Ass'n v. De la Cuesta, 458 U.S. 141, 153 (1982))) that the Supreme Court has developed.
304. Trollinger v. Tyson Foods, Inc., 370 F.3d 602, 608 (6th Cir. 2004).
305. Cipollone v. Liggett Grp., 505 U.S. 504, 516 (1992) (noting that congressional purpose is the ''ultimate touchstone' of pre-emption analysis' (quoting Malone v. White Motor Corp., 435 U.S. 497, 504 (1978))).
306. Mary J. Davis, Unmasking the Presumption in Favor of Preemption, 53 S.C. L. REV. 967, 1009-10 (2002) (arguing that, despite protestations to the contrary, the Supreme Court's jurisprudence has reflected a tacit presumption in favor of preemption and that 'the Court's distrust of products liability actions is greater than its interest in determining congressional intent or preserving traditional state authority').
307. Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 371 n.37 (2d Cir. 2009), (distinguishing preemption and displacement but noting that 'courts have. frequently used the word 'pre-emption' when discussing whether a statute displaces federal common law'), rev'd and remanded, 131 S. Ct. 2527 (2011). As the Supreme Court made clear in City of Milwaukee v. Illinois (Milwaukee II), legal analysis of whether federal common law has been displaced differs somewhat from that of whether state law has been preempted. See 451 U.S. 304, 316 (1981). The Court eschews the specific categories of its preemption doctrine in favor of a more simply formulated test of 'whether the statute '[speaks] directly to [the] question' otherwise answered by federal common law.' Cnty. of Oneida v. Oneida Indian Nation, 470 U.S. 226, 236-37 (1985) (alterations in original) (emphasis added in Oneida) (quoting Milwaukee II, 451 U.S. at 315).
308. 451 U.S. at 304.
309. 479 U.S. 481 (1987).
310. 451 U.S. at 319.
311. 479 U.S. at 498-99;
312. see also State ex rel. Dresser Indus., Inc. v. Ruddy, 592 S.W.2d 789, 793 (Mo. 1980) (holding that 'the [state] statutory scheme envisions a comprehensive remedial approach to water pollution problems, but preservation of common law remedies is consistent therewith-simply because preservation thereof strengthens and makes cumulative the powers of those charged with taking corrective measures').
313. Ouellette, 479 U.S. at 499. Given the enormous temptation to 'beggar thy neighbor' in the transboundary pollution context, sensitivity must be given to how one might incentivize a race to the top, rather than to the bottom. As Thomas Me,rill has argued, transboundary pollution disputes could be aided by a system of 'golden rules,' in which impacted states are entitled to the same degree of protection from source states as they apply to their own citizens, and, conversely, in which source states must extend the same degree of protection to impacted states as they apply to their own environment. See Thomas W. Merrill, Golden Rules for Transboundary Pollution, 46 DUKE L.J. 931, 936 (1997). The Ouellette holding is partially consistent with this approach.
314. North Carolina ex rel. Cooper v. Tenn. Valley Auth., 615 F.3d 291, 301 (4th Cir. 2010).
315. Nathan Richardson, Greenhouse Gas Regulation Under the Clean Air Act: Does Chevron Set the EPA Free?, 29 STAN. ENVTL. L.J. 283 (2010).
316. Milwaukee II, 451 U.S. 304, 334 n.2 (1981) (Blackmun, J., dissenting).
317. id. ('The whole concept of interstitial federal lawmaking suggests a cooperative interaction between courts and Congress that is less attainable where federal-state questions are involved.').
318. 593 F. Supp. 2d 812 (W.D.N.C. 2009), rev'd, 615 F.3d 291 (4th Cir. 2010).
319. Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 2527, 2537 (2011) (internal quotation marks omitted) (alterations in original).
320. Id. at 2538-39.
321. Id. at 2538.
322. Id. at 2539-40.
323. See 42 U.S.C. § 7416 (2006) ('Except as otherwise provided in [sections addressing automobile emissions, fuel standards, and aviation] nothing in this chapter shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution.').
324. See Int'l Paper Co. v. Ouellette, 479 U.S. 481, 490-91 (1987) (describing CWA provisions for affected states to address source state pollution); see also Am. Elec. Power Co., 131 S. Ct. at 2540 (referring to this holding of Ouellette as being relevant on remand).
325. 615 F.3d 291 (4th Cir. 2010).
326. Id. at 296.
327. Id. at 298
328. see also id. at 312 ('No matter how lofty the goal, we are unwilling to sanction the least predictable and the most problematic method for resolving interstate emissions disputes.').
329. Id. at 311. In devising their implementation plans, states must consider the impact of emissions within their borders on air quality in other states.
330. See 42 U.S.C. § 7410(a)(2)(D)(i) (2006). In addition, states must provide written notice to potentially affected states before any new construction or modification of existing emissions sources may begin.
331. See id. § 7426(a)(1). Finally, the Act allows any state that believes its ability to meet air quality standards is being compromised by out-of-state emissions to petition EPA for relief. See id. § 7426(b).
332. Clean Air Act Amendments of 1990, Pub. L. No. 101-549, § 401, 104 Stat. 2399 (codified as amended in scattered sections of 42 U.S.C.).
333. Christina C. Caplan, Note, The Failure of Current Legal and Regulatory Mechanisms To Control Interstate Ozone Transport: The Need for New National Legislation, 28 ECOLOGY L.Q. 169, 172 (2001);
334. Merrill, supra note 189, at 933 ('The Clean Air Act prohibits emission activity in one state that contributes significantly to other states' noncompliance with air quality standards, but no state has ever secured relief under this provision.').
335. North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008). Prior to this litigation, North Carolina filed a section 126 petition with EPA, on which the agency refused to act because it felt the Clean Air Interstate Rule would address North Carolina's concerns.
336. See Rulemaking on Section 126 Petition from North Carolina To Reduce Interstate Transport of Fine Particulate Matter and Ozone, 71 Fed. Reg. 25,328 (Apr. 28, 2006) (codified in scattered sections of 40 C.F.R.);
337. Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule), 70 Fed. Reg. 25,162 (May 12, 2005) (codified in scattered sections of 40 C.F.R.).
338. Cross-State Air Pollution Rule (CSAPR), EPA, http://www.epa.gov/airtransport (last visited Sept. 4, 2011).
339. North Carolina, 531 F.3d 896.
340. As the district court noted, 'Although the administrative route has certainly borne some interesting fruit, it has not, thus far, resulted in the reduction of emissions from upwind, out-of-state sources that North Carolina is ultimately seeking.' North Carolina ex rel. Cooper v. Tenn. Valley Auth., 593 F. Supp. 2d 812, 816 (W.D.N.C. 2009) (footnote omitted), rev'd, 615 F.3d 291 (4th Cir. 2010).
341. 615 F.3d at 305.
342. Id. at 300.
343. Cooper, 593 F. Supp. 2d at 825-28 (detailing contributions by out-of-state plants to air pollutant concentrations in North Carolina).
344. Cooper, 615 F.3d at 304-06.
345. Ouellette v. Int'l Paper Co., 666 F. Supp. 58, 61 (D. Vt. 1987) ('[S]tate law nuisance claims have always been available to private parties suing for damages for pollution that travels between state boundaries.'). For additional cases holding that the CAA does not preempt state common law claims,
346. see The Queen v. City of Detroit, 874 F.2d 332, 342-44 (6th Cir. 1989); Abundiz v. Explorer Pipeline Co., No. CIV. 3:00-CV-2029-H, 2002 WL 1592604, at *4-5 (N.D. Tex. Jul. 17, 2002); Technical Rubber Co. v. Buckeye Egg Farm, L.P., No. 2:99-CV-1413, 2000 WL 782131, at *5 (S.D. Ohio June 16, 2000); and Gutierrez v. Mobil Oil Corp., 798 F. Supp. 1280, 1284 (W.D. Tex. 1992).
347. Cooper, 615 F.3d at 304-05.
348. See Riegel v. Medtronic, Inc., 552 U.S. 312, 323-25 (2008) (concluding that tort duties constitute 'requirements' under the preemption provision of the Medical evicesAmendments of 1976); Bates v. Dow Agrosciences LLC, 544 U.S. 431, 443 (2005) (noting that 'the term 'requirements' in [the Federal Insecticide, Fungicide, and Rodenticide Act] reaches beyond positive enactments, such as statutes and regulations, to embrace commonlaw duties'); Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 521 (1992) ('The phrase '[n]o requirement or prohibition' [in the Public Health Cigarette Smoking Act of 1969] sweeps broadly and suggests no distinction between positive enactments and common law.').
349. Hills, supra note 7, at 28.
350. See supra note 197 and accompanying text.
351. Laurence H. Tribe, Joshua D. Branson & Tristan L. Duncan, Too Hot for Courts To Handle: Fuel Temperatures, Global Warming, and the Political Question Doctrine 4-5 (Wash. Legal Found., Critical Legal Issues Working Paper Series No. 169, 2010), http://www.wlf.org/Upload/legalstudies/workingpaper/012910Tribe_WP.pdf.
352. Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725, 1810 (1996).
353. supra text accompanying notes 175-176.
354. Martin S. Flaherty, supra note 222, at 1755.
355. Id. at 1766.
356. Id. at 1767
357. Gordon S. Wood, Comment, in ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 49, 59-60 (Amy Gutmann ed., 1997) (noting that '[t]he sharp distinction we recognize between legislation and adjudication is a modern one,' that in the Founding era and early years of the Republic there was deep intermingling of the judicial and legislative functions, and that 'for good or for ill, judges have exercised that sort of presumably undemocratic authority [that Justice Scalia believes is incompatible with democratic theory] from the very beginning of our history').
358. M.J.C. VILE, CONSTITUTIONALISM AND THE SEPARATION OF POWERS 19 (Liberty Fund 2d ed. 1998) (1967) (explaining the limitations of the 'pure' separation-of-powers theory, which led the Founders to modify it with the idea of checks and balances);
359. Flaherty, supra note 222, at 1816 (''[M]ore than 200 years of practice under the Constitution suggest that the inherent fluidity and the system of checks and balances render a strict separation impossible,' a point that scholars as diverse as [Forrest] McDonald, [Edward] Corwin, [Lawrence] Lessig and [Cass] Sunstein, and Susan Low Bloch have suggested.' (quoting FORREST MCDONALD, THE AMERICAN PRESIDENCY: AN INTELLECTUAL HISTORY 180 n.35 (1994)));
360. M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 VA. L. REV. 1127, 1167 (2000) ('The Supreme Court's repeated invocation of separation of powers and checks and balances as a 'self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other' fails to identify the differences between functional separation and balance.' (quoting Buckley v. Valeo, 424 U.S. 1, 122 (1976))).
361. Nor are these focal points of shared power by any means limited to those checks and balances expressly instantiated in the Constitution. Perhaps the single most important check in the entire system-the judiciary's authority to decide the constitutionality of other branches' actions-is not among those textually prescribed.
362. Nixon v. United States, 506 U.S. 224 (1993).
363. Gilligan v. Morgan, 413 U.S. 1 (1973).
364. Goldwater v. Carter, 444 U.S. 996 (1979).
365. Cf. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 69-70 (1982) (noting that '[p]rivate-rights disputes. lie at the core of the historically recognized judicial power' and that 'the liability of one individual to another under the law as defined. [cannot] be removed from Article III courts and delegated to legislative courts or administrative agencies for their determination' (quoting Crowell v. Benson, 285 U.S. 22, 51 (1932))).
366. Barasich v. Columbia Gulf Transmission Co., 467 F. Supp. 2d 676, 684 (E.D. La. 2006).
367. Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 HARV. L. REV. 1274 (2006).
368. In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 438 F. Supp. 2d 291, 300 (S.D.N.Y. 2006).
369. Sunstein, supra note 23, at 1436.
370. Tribe et al., supra note 221, at 2.
371. ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 16-23 (2d ed. 1986).
372. Id. at 20 (distinguishing between constitutional judicial review, which Bickel takes to pose a countermajoritarian problem, and the ordinary 'lawmaking function of judges' akin to administrative officialdom, because the latter is 'reversible by any legislative majority-and not infrequently [actually] reversed'); SCALIA, supra note 226, at 12 (noting that he is 'content to leave the common law, and the process of developing the common law, where it is,' though he resists a common law attitude toward statutory interpretation). In the case of public nuisance suits brought by attorneys general and other popularly accountable officials, the countermajoritarian difficulty is even less present, because the plaintiffs themselves are subject to majoritarian review.
373. WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW: AIR AND WATER § 2.3, at 40 (1986);
374. Trevor W. Morrison, The State Attorney General and Preemption, in PREEMPTION CHOICE: THE THEORY, LAW, AND REALITY OF FEDERALISM'S CORE QUESTION 81, 87 (William W. Buzbee ed., 2009).
375. Commentators ignore this basic point when they complain that even climate change suits limited to damages recovery would, because of their selectivity, 'completely short-circuit[] the question of how to allocate [the climate change compensation] burden throughout the global economy.' Tribe et al., supra note 221, at 19. To be sure, were a climate changeplaintiff to succeed on the merits, the Senate's de facto supermajority rule might pose a barrier to legislative correction if the public did not agree with the case's outcome. But that would be a barrier generic to Congress's current state of dysfunction and inertia-a condition that the legislature might well be jarred out of by an unexpected success for plaintiffs. The common law is not only preferable to a laissez-faire baseline of governance but may also be more conducive to the generation of legislation to improve upon it.
376. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 132 (2d ed. 2002) ('[T]he federal courts' legitimacy is quite robust. and. in any event, the courts' mission should be to uphold the Constitution and not worry about political capital.'); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW, at viii (2d ed. 1988) ('[T]he highest mission of the Supreme Court. is not to conserve judicial credibility.').
377. Consider the following summary of standing doctrine from a leading text: It is impossible to read the complicated and conflicting opinions issued in the Court's over one hundred cases resolving standing disputes without drawing the inference that the Justices are greatly influenced by their personal political and ideological values and beliefs. The concepts of injury-in-fact, causality, and redressability are extraordinarily malleable. The Justices can, and do, manipulate these concepts to obtain results they prefer on political and ideological grounds. Some Justices are sympathetic to environmental plaintiffs, while others are not. RICHARD J. PIERCE, JR., SIDNEY A. SHAPIRO & PAUL R. VERKUIL, ADMINISTRATIVE LAW AND PROCESS 169 (5th ed. 2009);
378. STEINZOR and SHAPIRO, supra note 88, at 158 (quoting and discussing this passage).
379. Fallon, supra note 234, at 1278 ('To put the point provocatively, the Court makes its judgments about whether proposed standards count as judicially manageable under criteria that would themselves fail to qualify as judicially manageable if the requirement of judicial manageability applied.');
380. Louis Henkin, Is There a 'Political Question' Doctrine?, 85 YALE L.J. 597, 622 (1976) ('The 'political question' doctrine, I conclude, is an unnecessary, deceptive packaging of several established doctrines that has misled lawyers and courts to find in it things that were never put there and make it far more than the sum of its parts. Its authentic contents have general jurisprudential validity, and nothing but confusion is gained by giving them special handling in selected cases.'). As Thomas Merrill notes, preemption doctrine can be criticized on similar grounds: In a word, the Court's preemption doctrine is substantively empty. This emptiness helps mask the fact that courts are actually making substantive decisions in the name of preemption. The very emptiness of this doctrine also impoverishes the type of record that litigants develop for courts in preemption cases, which plausibly means these cases are not as well decided as they would have been under a different kind of doctrine.
381. Thomas W. Merrill, Preemption and Institutional Choice, 102 NW. U. L. REV. 727, 742 (2008).
382. GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC: 1776-1787, at 550 (1969).
383. Goldwater v. Carter, 444 U.S. 996, 1000 (1979) (Powell, J., concurring in the judgment).
384. Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948) (deeming nonreviewable by the courts an executive branch denial of a certificate of convenience and necessity for foreign air travel by a domestic operator because of the President's power over foreign affairs).
385. City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415 (3d Cir. 2002); Camden Cnty. Bd. of Chosen Freeholders v. Beretta, U.S.A. Corp., 273 F.3d 536 (3d Cir. 2001); City of Cleveland v. Ameriquest Mortg. Sec., Inc., 621 F. Supp. 2d 513 (N.D. Ohio 2009); City of Boston v. Smith & Wesson Corp., No. 199902590, 2000 WL 1473568 (Mass. Super. Ct. July 13, 2000).
386. Tribe et al., supra note 221, at 21.
387. The Supreme Court's recent decisions in Twombly and Iqbal articulating heightened pleading standards in federal court provide another means of addressing such concerns-though not one we are inclined to support, for reasons similar to those that underlie ourrejection of the expansive invocation of the political question doctrine, standing, and implied preemption. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007);
388. see also supra note 20. As Arthur Miller has argued, the concerns motivating heightened pleading standards focus undue attention on one side of the balance of costs and benefits created by a robust system of private litigation: 'Even though private lawsuits might be viewed as an inefficient ex post method of enforcing public policies, they have dispersed regulatory authority; achieved greater transparency; provided a source of compensation, deterrence, and institutional governance; and led to leaner government involvement.' Miller, supra note 20, at 6. In the domain of tort law, lawsuits create these benefits while also allowing an independent source of normative order to develop and operate.
389. In that respect, cries against disturbing new 'transmutations' and manipulations of public nuisance doctrine ring hollow when uttered by the same individuals who assert that the doctrine has always been dangerously flexible.
390. Faulk and Gray, supra note 106, at 947-50.
391. Bernadette Meyler, Towards a Common Law Originalism, 59 STAN. L. REV. 551 (2006).
392. For Justice Scalia's latest attempt in this regard, see Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 130 S. Ct. 2592, 2606 (2010) (plurality opinion), in which the Justice asserts that 'the Constitution was adopted in an era when courts had no power to 'change' the common law.' In that case, Justice Scalia felt it was 'contradictory' for Justice Kennedy in concurrence to assert both that 'owners [of property] may reasonably expect or anticipate courts to make certain changes in property law' and that 'courts cannot abandon settled principles.' Id. (quoting id. at 2615 (Kennedy, J., concurring in part and concurring in the judgment)). If there is a tension here, then it is a productive one that lies at the very heart of the common law method. See supra text accompanying notes 90-93.
393. SCOTT J. SHAPIRO, LEGALITY 118-233 (2011) (setting forth a theory of laws as plans or 'planlike norms').
394. For this reason, the Fourth Circuit in North Carolina ex rel. Cooper v. Tennessee Valley Authority seemed to expound the view that the law of public nuisance was not, in fact, law. See Cooper, 615 F.3d 291, 302 (4th Cir. 2010) (stating that public nuisance is 'an ill-defined omnibus tort of last resort' and applies 'at such a level of generality as to provide almost no standard of application');
395. Thomas W. Merrill, Is Public Nuisance a Tort?, 4 J. TORT L., no. 2, art. 4, at 5 (2011), http://www.bepress.com/jtl/vol4/iss2/art4 (arguing that the closest analogy to public nuisance doctrine is criminal not tort law and that, because of a failure to abide by the distinction, public nuisance litigation has 'gone off the rails'). Likewise, the Fourth Circuit panel bemoaned the plight of regulated entities faced with potential statutory and common law obligations: '[W]hich standard is the hapless source to follow?' Cooper, 615 F.3d at 302. The answer, though obvious, seems not to have occurred to the court: the highest standard.
396. It would be hard to put it better than Jeremy Waldron has: [I]t is natural to think that the Rule of Law must condemn the uncertainty that arises out of law's argumentative character. But. there [i]s another current in our Rule-of-Law thinking which emphasizes argument, procedure, and reason, as opposed to rules, settlement, and determinacy. This theme sometimes struggles to be heard. But. it is often quite prominent in public and political use of the Rule of Law ideal. The most common political complaint about the Rule of Law is that governments have interfered with the operation of the courts, compromised the independence of the judiciary, or made decisions affecting people's interests or liberties in a way that denies them their day in court-their chance to make an argument on their own behalf.
397. Jeremy Waldron, The Concept and the Rule of Law, 43 GA. L. REV. 1, 55 (2008). To the extent that there is a tradeoff between stability and predictability on the one hand, and reasonableness and responsiveness on the other, tort law may by its nature be more comfortable than, say, contract or property law with sacrificing some certainty in exchange for propriety.
398. Cornelius J. Peck, Comments on Judicial Creativity, 69 IOWA L. REV. 1, 2 (1983) (arguing that stability and predictability are more important to property and contract law than to tort).
399. Robert C Post & Neil S. Siegel, Theorizing the Law/Politics Distinction: Neutral Principles, Affirmative Action, and the Enduring Legacy of Paul Mishkin, 95 CALIF. L. REV. 1473, 1497-1500 (2007).
400. Robert Post, Theorizing Disagreement: Reconceiving the Relationship Between Law and Politics, 98 CALIF. L. REV. 1319, 1338 (2010) (citing JACQUES RANCIÈRE, ON THE SHORES OF POLITICS 103 (Liz Heron trans., 2007) (italics omitted)).
401. As Frederick Schauer has noted, basic aspects of the common law are in tension with central ideas about the rule of law. In particular, common law rules are 'nowhere canonically formulated,' are applied to cases that prompt the rules themselves, are 'created by courts' rather than legislatures, and are developed by courts not just to fill gaps but also to modify existing law when it would generate undesirable results.
402. Frederick Schauer, Is the Common Law Law?, 77 CALIF. L. REV. 455, 455 (1989) (reviewing MELVIN A. EISENBERG, THE NATURE OF THE COMMON LAW (1988)).
403. DAMAS ̌KA, supra note 87, at 29-46.
404. Id. at 117.
405. Id. at 77-78.
406. James Q. Whitman, No Right Answer?, in CRIME, PROCEDURE AND EVIDENCE IN A COMPARATIVE AND INTERNATIONAL CONTEXT: ESSAYS IN HONOUR OF PROFESSOR MIRJAN DAMAŠKA 371, 389-90 (John Jackson, Máximo Langer & Peter Tillers eds., 2008).
407. Id. at 389. Damaška's powerful descriptive work prefigured the basic rejoinder to a 'lack of judicially manageable standards' argument against the adjudication of novel, politicallycharged common law claims: It is undeniable that where an imperfectly hierarchical judiciary is involved in making and implementing policy, considerable uncertainty and instability are introduced into the legal system, quite independent of the ambiguities resulting from [the] absence of a single comprehensive theory of the social good. It may well be that a society conditioned to hierarchically constituted authority might find the resulting levels of dissonance, uncertainty, and instability intolerable. Americans can live with it, however.
408. DAMAšKA, supra note 87, at 239.
409. Somerset v. Stewart, (1772) 98 Eng. Rep. 499 (K.B.).
410. Tribe et al., supra note 221, at 20.