PEOPLE OF THE STATE OF CALIFORNIA VERSUS GENERAL MOTORS
CORPORATION: IS GLOBAL WARMING REALLY A POLITICAL QUESTION?
NICOLE RAE STRONG
On September 17, 2007, the United States District Court for the Northern District of
California granted the General Motors Corporation‟s motion to dismiss against the State of
California for a claim of public nuisance.1 In granting this motion, the Court concluded that the claiming of global warming as a public nuisance raised a “political question” and was therefore,
2nonjusticiable. The author of this paper believes this decision was made in error and the matter
of global warming being a public nuisance is not a political question and should be tried by the
courts in this country. This paper will first examine the history and facts of the district court case.
Secondly, this paper will look into relevant portions of the Clean Air Act as it pertains to the
matters of this case. Next, the recent decision of Massachusetts v. Environmental Protection Agency will be examined as its holding was heavily relied upon in the briefs and holding of the
The remainder of the paper will consist of an analysis of the relevant portions of the
political question doctrine as laid out in Baker v. Carr. The Baker factors considered in this
? Nicole Rae Strong, University of South Dakota School of Law, J.D. candidate, 2009. Drake University,
B.A. Politics 2006. 1 California v. General Motors Corp., 2007 WL 2726871 (N.D. Cal. 2007). 2 Id.
paper are: (1) Did resolution of Plaintiff‟s federal common law nuisance claim require the Court
to make an initial policy decision?; (2) Did Plaintiff‟s claim implicate a textually demonstrable
constitutional commitment to the political branches?; and (3) Is there a lack of judicially
discoverable or manageable standards by which to resolve Plaintiff‟s claim? While the Court in California v. General Motors found the issue to be non-justiciable, the author maintains the
position that the issue of global warming does not raise a political question and the State‟s public
nuisance claim should have been heard.
II. FACTS AND PROCEDURE
The State of California sought damages against various automakers
3 for “creating, and
4contributing to, an alleged public nuisance—global warming.” In its Complaint for Damages
and Declaratory Judgment, California stated the “[s]cientific debate is over: the massive
atmospheric increase in carbon dioxide and other greenhouse gases resulting from human
activity has changed the climate and will further change the climate over the next decades.”5
Plaintiff‟s allegations were backed by the following actions of the defendants: annual emissions
of 289 million metric tons of carbon dioxide, 9% of the world‟s carbon dioxide emissions, and
30% of emissions from within the State of California.6
3 Defendants in this action are: General Motors Corp.; Toyota Motor North America, Inc.; Ford Motor
Co., American; Honda Motor Co., Inc.; Daimler Chrysler Corp.; and Nissan North America, Inc. Id. at
4 Id. 5 Complaint at 1, California v. General Motors Corp., 2006 WL 2726547 (N.D. Cal. 2006) (No.
3:06CV05755). 6 Id. at 2.
7 In response to Plaintiff‟s Complaint, Defendants filed a motion to dismiss. Defendants
stated Plaintiff‟s complaint “must be dismissed because it raises nonjusticiable issues properly
8reserved for resolution by the political branches of the federal government.” In support of this
argument, Defendants alleged that resolution of this issue “would require the Court to make an
9initial policy determination.” The second argument in support of Defendants‟ nonjusticiable
theory alleged “[t]he lack of judicially discoverable and manageable standards” requires
10dismissal of Plaintiffs‟ public nuisance claim.
11 In answering this question, the Court was required to apply the test from Baker v. Carr.
12Baker v. Carr set forth six factors for a court to consider when evaluating “political questions.”
A case may be found to involve a political question if there is found:
A textually demonstrable constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion; or the impossibility of a
court‟s undertaking independent resolution without expressing lack of the respect
due coordinate branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on one
In making its decision, the Court relied primarily on the third factor, asking whether the case
could be decided “without making an initial policy determination of a kind clearly for
7 Motion to Dismiss, California v. General Motors, 2006 WL 3747438 (N.D. Cal. 2006) (No.
3:06CV05755). 8 Id. at 5. 9 Id. at 7. 10 Id. at 10. 11 California v. General Motors Corp., 2007 WL 2726871, at *6 (N.D. Cal. 2007); Baker v. Carr, 82 S.Ct.
691 (1962). 12 Baker, 82 S. Ct. at 710. 13 Id.
14nonjudicial discretion.” The Court additionally looked at the first and second Baker indicators, looking to a “textually demonstrable constitutional commitment of the issue to the political
1516branches” and “judicially discoverable or manageable standards.” The Court began its
17analysis with the third Baker indicator involving the making of an initial policy determination.
In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court
recognized that to resolve a typical air pollution case, courts would be required to “strike a
balance „between interests seeking strict schemes to reduce pollution rapidly to eliminate its
social costs and interests advancing the economic concern that strict schemes will retard
industrial development with attendant social costs.‟”18 The Court determined that this balancing
of interests requires an “initial policy determination” to be made by the political branches of
19government—Congress and the President—and not the courts.
Plaintiffs contended that the Court would not be required to make an initial policy
determination; rather than having to “determine whether Defendants‟ actions have been
unreasonable,” Plaintiffs argued instead that the Court need only decide “whether the
interference suffered by California is unreasonable.”20 The Court was not convinced by this
argument, however, stating that it was still “left to make an initial decision as to what is
14 General Motors, 2007 WL 2726871, at *6 (N.D. Cal. 2007) (citing Baker, 82 S.Ct. at 710). 15 General Motors, 2007 WL 2726871, at *13. 16 Id. at *14. 17 Id. at *6. 18 Id. at *7 (quoting Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 267 U.S. 837, 847
(1984)). 19 General Motors, 2007 WL 2726871, at *7. 20 Id. at *8.
21unreasonable in the context of carbon dioxide emissions.” This “initial decision”, the Court stated would require the creation of a “quotient or standard” in order to quantify the damages
22caused by Defendants‟ alleged acts.
The Court next went on to discuss whether the political branches of the government have
yet made an “initial policy determination” regarding global warming and carbon dioxide
emission standards.23 The Court looked to both the direct actions and the inactions of the
24political branches of the government. The Court examined the enactment of both the Clean Air
25Act (CAA) and the Energy and Policy Conservation Act (EPCA).
By themselves, the CAA and EPCA do not directly address the issue of global
warming and carbon dioxide emission standards. However, when read in
conjunction with the prevalence of international and national debate, and the
resulting policy actions and inactions, the Court finds that injecting itself into the
global warming thicket at this juncture would require an initial policy
determination of the type reserved for the political branches of government.26
Thus, the Court found it could not adjudicate Plaintiffs‟ public nuisance claim without making an
27“initial policy determination” of a kind left for nonjudicial discretion.
Even though the Court had determined the Plaintiffs‟ public nuisance claim should be
28dismissed, it continued a further analysis under two additional Baker indicators. The next step
the Court took was to look at “whether the issues before the court implicate a textually
21 Id. 22 Id. 23 Id. at *9. 24 Id. at *8. 25 General Motors, 2007 WL 2726871, at *9. 26 Id. at *10. 27 Id. at *13. 28 Id.
29demonstrable constitutional commitment to the political branches of government.” Defendants put forth the argument that the issue was taken care of by “Congress‟s enumerated power over
30interstate commerce and the political branches‟ enumerated power over foreign policy.” Plaintiffs countered, maintaining the public nuisance claim is a commitment of power to the
31federal judiciary unrelated to interstate commerce or foreign policy.
The Court determined that Plaintiffs‟ public nuisance claims called into question matters
32of interstate commerce and foreign policy. This implication of power caused the court to take a
33closer look at whether they could exercise subject matter jurisdiction in spite of this finding. The Court did not find itself justified in overcoming this matter and determined that Plaintiffs‟
public nuisance claim “would have an inextricable effect on interstate commerce and foreign
policy.”34 And as these issues were “constitutionally committed” to the political branches of
35government, the Court was not suited to grant subject matter jurisdiction.
The Court lastly examined the second Baker indicator, asking “whether there are
36judicially discoverable or manageable standards available to resolve the question before it.” Similar to the argument earlier presented by Defendants is the idea that it is “impossible for the Court to determine what constitutes an unreasonable level of carbon dioxide produced by
29 Id. 30 Id. 31 General Motors, 2007 WL 2726871, at *13. 32 Id. at *14. 33 Id. 34 Id. 35 Id. 36 Id.
37Defendants‟ vehicles . . . .” These arguments are linked in that Defendants contend that the
determination of “what constitutes an unreasonable level of carbon dioxide” would be an “initial
38policy determination.” Plaintiffs‟ reaction to this argument stated that because the claim sought
damages only, the common law framework for settling a public nuisance claim is already
As with the previous two arguments set forth by Plaintiffs, the Court found this Baker
40indicator also required dismissal of the public nuisance claim. Contrary to Plaintiffs‟ claim, the Court found that the request for monetary as opposed to equitable damages left the Court without
“judicially discoverable or manageable standards by which to properly adjudicate Plaintiff‟s
federal common law global warming nuisance claim.”41 As the Court determined Plaintiffs‟ public nuisance claim failed at least three Baker indicators, it granted Defendant‟s motion to
A. CLEAN AIR ACT
In response to problems of air pollution, several state and federal laws were passed to
37 General Motors, 2007 WL 2726871, at *14. 38 Id. 39 Id. 40 Id. at *16. 41 Id. 42 Id.
43create funding for the study and cleanup of air pollution. Included in this mass legislation was
44the original Clean Air Act of 1963 (CAA), located at 42 U.S.C. ?? 7401-7626. In 1970,
Congress both passed a much stronger Clean Air Act and also created the Environmental
45Protection Agency (EPA), granting it the role of carrying out the CAA. The CAA was
46substantially revised and expanded in 1990. These amendments provided the EPA with even
broader authority to implement and enforce regulations designed to reduce air pollutant
48 The Clean Air Act is comprised of seven titles. At issue here is Title II which covers
49“Emission Standards for Moving Sources.” These emission standards apply to three categories
5051of “moving sources." Part A covers “Motor Vehicle Emission and Fuel Standards,” Part B
5253covers “Aircraft Emission Standards,” and Part C pertains to “Clean Fuel Vehicles.”
Under the Clean Air Act, the EPA is required to issue rules designed to “reduce pollution
54from vehicle exhaust, refueling emissions and evaporating gasoline.” These emission
43 United States Environmental Protection Agency, The Plain English Guide to the Clean Air Act, Pub. No. EPA-456/K-07-001 (April 2007), available at http://www.epa.gov/air/caa/peg/index.html [hereinafter
Plain English Guide].
44 Id. 45 Id. 46 Id. 47 Id. 48 Title I: Air Pollution Prevention and Control; Title II: Emission Standards for Moving Sources; Title III:
General Provisions; Title IV: Noise Pollution; Title IV-A: Acid Deposition Control; Title V: Permits;
Title VI: Stratospheric Ozone Protection. Clean Air Act (CAA), 42 U.S.C. ? 7401-7626 (xxxx).
49 CAA, 42 U.S.C. ?? 7521-7590 (xxxx). 50 Id. 51 CAA, 42 U.S.C. ?? 7521-7554 (xxxx). 52 CAA, 42 U.S.C. ?? 7571-7574 (xxxx). 53 CAA, 42 U.S.C. ?? 7581-7590 (xxxx). 54 Plain English Guide, supra note 43.
standards are to be applicable to any air pollutant that the EPA believes causes or contributes to
air pollution that reasonably can be “anticipated to endanger public health or welfare” in any new
55motor vehicle or new motor vehicle engine.
The EPA is instructed to create emission standards that “reflect the greatest degree of emission reduction achievable through the application of technology which the Administrator
determines will be available for the model year to which such standards apply, giving
appropriate consideration to cost, energy, and safety factors associated with the application of
such technology.”56 The EPA creates rules designed to reduce vehicle emissions in a variety of
57vehicle categories: cars, light-duty trucks, and heavy-duty trucks. In making these vehicle
classifications, the EPA is permitted to take into consideration such things as vehicle weight,
58horsepower, the type of fuel used, and any other appropriate factors.
B. MASSACHUSETTS V. EPA
A group of states, local governments, and private organizations brought action against
the EPA, claiming that it had “abdicated its responsibility under the Clean Air Act to regulate the
emissions of four greenhouse gases, including carbon dioxide.”59 Out of this claim, two
questions arose: “whether EPA has the statutory authority to regulate greenhouse gas emissions
from new motor vehicles; and if so, whether its stated reasons for refusing to do so are consistent
55 CAA, 42 U.S.C. ? 7521(a)(1) (xxxx). 56 CAA, 42 U.S.C. ? 7521(a)(3)(A) (xxxx). 57 Plain English Guide, supra note 43. 58 CAA, 42 U.S.C. ? 7521(a)(3)(A) (xxxx). 59 Massachusetts v. Environmental Protection Agency (EPA), 1237 S. Ct. 1438, 1446 (2007).
60with the statute.” In response to these questions, the EPA challenged the standing of the
The EPA contends that “because greenhouse gas emissions inflict widespread harm, the
62doctrine of standing presents an insuperable jurisdictional obstacle.” The Court did not agree
with this argument and found that standing instead asks the question of whether those bringing a
63claim have a personal stake in the issue. As states entered the Union, they surrendered certain
64sovereign powers. Relevant to the subject of air pollution, states have surrendered their power
to invade neighboring states to force reductions in greenhouse gas emissions and the ability to
65negotiate treaties with foreign countries. These powers were surrendered to the federal government, and in the case of air pollution, Congress has ordered the EPA to protect the states
66by prescribing standards application to air pollutant emissions. Given this procedural process,
67the Court found that Massachusetts did have a personal stake in protecting its state-interests.
In finding that Massachusetts had standing to bring this claim, the Court also took a
more in-depth look into the three requirements of standing: injury in fact, causation, and an
available remedy.68 As to the question of injury, the Court rejected the argument put forth by the
EPA that the “widely shared” risks of air pollutant emissions minimize a state‟s interest in the
60 Id. 61 Id. 62 Id. at 1453. 63 Id. 64 Id. at 1454. 65 Massachusetts v. EPA, 1237 S. Ct. at 1454. 66 Id. 67 Id. 68 Id. at 1455-1458.