High-profile cases involving global warming and an activist killed in the Gaza Strip have fallen into the same jurisdictional trap as California courts squelched them under the “political question” doctrine.

In neither case was a government agency named as a defendant. The California attorney general sued six automakers for creating a public nuisance, while the parents of Rachel Corrie filed a wrongful-death claim against Caterpillar, Inc., the manufacturer of the Israel Defense Forces bulldozer that crushed her as she tried to stop the demolition of a Palestinian home.

But the 9th U.S. Circuit Court of Appeals, which is based in San Francisco, refused to “intrude into our government’s decision to grant military assistance to Israel, even indirectly by deciding this challenge to a defense contractor’s sales.”

And a San Francisco judge, similarly, did not reach the merits of the global warming case because “the complaint raises non-justiciable political questions.”

The political question doctrine bars judicial determination of issues which are “in their nature political, or which are, by the constitution and laws, submitted to the executive.” Marbury v. Madison, 5 U.S. 137 (1803).

The attorney general's complaint was a novel attempt to hold automakers liable for producing “millions of vehicles that collectively emit massive quantities of carbon dioxide.” The pollution inflicted on California by the defendants, the state argued, is properly compensable in damages and Californians should not have to wait for a political solution to global warming.

California v. General Motors, however, did not survive a motion to dismiss, with U.S. District Judge Martin J. Jenkins ruling Sept. 17 that he could not

impose damages against the Defendant automakers without unreasonably encroaching into the global warming issues currently under consideration by the political branches.

“A judicial determination of monetary damages for Plaintiff’s global warming nuisance tort would improperly place this Court into [a] geopolitical debate,” he added in his order.

The 9th Circuit, meanwhile, singled out U.S. financing of Caterpillar's sales to Israel in applying the political question doctrine to the Corrie family's case. The plaintiffs alleged Caterpillar was liable for Corrie's death because it supplied bulldozers to Israel while knowing they were being “used to commit war crimes against the Palestinian civilian population.”

“A court could not find in favor of the plaintiffs without implicitly questioning, and even condeming, United States foreign policy toward Israel,” the opinion, which affirmed a trial judge's dismissal of the case, said.

The Corries were represented in their appeal by Professor Erwin Chemerinsky, who was just rehired as dean of the new University of California, Irvine, law school. Some have speculated that his involvement in the case influenced the university's chancellor to rescind the original appointment.

By Matthew Heller
9/18/07