AEP v. Connecticut and the Future of the Political Question Doctrine

Abstract

Whether and how to apply the political question doctrine were among the issues for which the Supreme Court granted certiorari in American Electric Power Co. v. Connecticut (AEP).1 This doctrine holds that federal courts should not resolve certain kinds of claims better left to other branches. Here, the question was whether the doctrine barred review of plaintiffs’ federal common law claims for climate change. The Court, however, declined to engage the issue. Nonetheless, this Essay argues that the doctrine is still very relevant in the context of common law causes of action for climate change, and does so in three parts. Part I briefly explains the doctrine’s historical backdrop, observing the limited extent to which it has been applied. Part II explains the role that the doctrine played in AEP and that the Court declined to address the issue directly. Part III discusses the implications that AEP may have on the doctrine going forward.

Keywords: political question doctrine, constitutional law, environmental law

JEL Classification: K32