The mystery surrounding the very brief, per curiam panel decision in the New Haven firefighters' discrimination case is not the only mystery involving Supreme Court nominee Sonia Sotomayor of the U.S. Court of Appeals for the 2d Circuit. A major climate change lawsuit brought by eight states against five utilities has been pending decision for nearly three years before an appellate panel on which Sotomayor is the presiding judge.
"No one knows why the case has never been decided," said David Doniger, policy director of the Natural Resources Defense Council's Climate Center.
And it's not for lack of trying to get information. Last September, the plaintiffs wrote to the circuit clerk about the pending appeal, and just a few weeks ago, another letter went to the clerk from a group involved in the case.
Connecticut v. American Electric Power Co. (AEP) is one of three major climate change suits pending in the circuit courts of appeals — all had been dismissed in district court on political question grounds. The other two are Comer v. Murphy Oil Co. in the 5th Circuit and California v. General Motors Corp. in the 9th Circuit. "These are tort law cases that have been brought by states and a couple by non-governmental organizations or private citizens," explained Doniger. "Standing has not yet proved to be an obstacle, but there have been other obstacles like the political question ground."
In AEP, the district court rejected public nuisance claims brought by the state attorneys general against the power companies because of their greenhouse gas emissions. The court held that the case was non-justiciable because it required "identification and balancing of economic, environmental, foreign policy, and national security interests" of a "transcendently legislative nature." The case was docketed with the circuit court in September 2005; briefing was completed in March 2006, and argument was held June 7, 2006. The Sotomayor panel asked for additional briefing on the impact of the Supreme Court's climate decision, Massachusetts v. EPA., and that briefing was filed in July 2007.
Some lawyers who practice before the circuit court said the delay — three years from oral argument — is unusually long. The circuit disposes of cases on the merits an average of 17.6 months from notice of appeal to final disposition, according to statistics compiled by the Administrative Office of the U.S. Courts, and 0.6 months from hearing to full disposition.
I also wonder if there was a concern about her having to recuse herself if the case ended up at a Supreme Court with her in it. Does that suggest some political gamesmanship with the court system here?
Nawwww, that would never happen.
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