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 2nd U.S. Circuit Court of Appeals. 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. 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 (pdf), 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.
The delay, some of have posited, is the result of the controversial nature of the case and that was only heightened by initial speculation about Sotomayor as a potential Supreme Court nominee and how any decision might affect her chances. "Some of us didn't believe earlier that the speculation about Sotomayor had anything at all to do with the delay," said one lawyer following the case. "But with every passing day that argument gets stronger and stronger."
The AEP case, he and others noted, "tees up" the issue of what Sotomayor meant in a 2005 Duke University discussion that appellate courts "make policy."
Glenn Sugameli, an EarthJustice attorney in charge of judicial nominations, said Sotomayor has sided with and against environmentalists as an appellate judge. "We just want a judge who is fair." The AEP case is "an important and interesting case," he said. And as to why it has yet to be decided? "I have no idea."
The states are represented in the AEP case by the New York attorney general. Law firms representing the utility companies are Hunton & Williams, Sidley Austin and Jones Day. The Tennessee Valley Authority is represented by its office of general counsel.
