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The Missing Case of Connecticut v. AEP:

In June 2006, a three-judge panel of the U.S. Court of Appeals heard oral argument in Connecticut v. American Electric Power, a suit filed by several state AGs against several large utilities alleging the emission of greenhouse gases from their facilities constitute an actionable "public nuisance" by contributing to climate change. Judge Sonia Sotomayor was the presiding judge. Nearly three years later, the Second Circuit has yet to issue an opinion.

Jonathan Zasloff noted this extraordinary delay on Legal Planet early in the week (prompting this post of mine on NRO's Bench Memos). Now Marcia Coyle of the National Law Journal has a longer story looking at the case and the unreasonable delay.

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.

Prosecutorial Indiscretion:
.6 months from hearing to disposition? Damn that Second Circuit is fast.
5.29.2009 1:26am
BRM:
One of the essays on my 1L property final exam asked us to assess the validity of the public nuisance claim in this case. I thought that I read that it settled in 2007, but apparently that was the civil Clean Air Act prosecution against AEP.
5.29.2009 4:25am
JonC:
Out of curiosity, does anyone know who the other judges on the panel were?
5.29.2009 8:20am
Per Son:
JonC:

That is not relevant. All that matters is that Sotomayor is linked to the case - so she is therefore yucky.
5.29.2009 8:35am
cboldt (mail):
-- All that matters is that Sotomayor is linked to the case --
.
She's the presiding judge on the appellate panel. The speculation is that she's deliberately avoided rendering an opinion, in order to reduce the amount of material that proponents and opponents might use in confirmation hearings.
5.29.2009 9:59am
martinned (mail) (www):

One of the essays on my 1L property final exam asked us to assess the validity of the public nuisance claim in this case. I thought that I read that it settled in 2007, but apparently that was the civil Clean Air Act prosecution against AEP.

Here's a $ 4.6 bn settlement from 2007, but it does look like that's a different one. I tried searching in Westlaw, but I found not settlement in this case there.
5.29.2009 10:17am
kormal:

She's the presiding judge on the appellate panel. The speculation is that she's deliberately avoided rendering an opinion, in order to reduce the amount of material that proponents and opponents might use in confirmation hearings.


But presumably the opinion has been assigned. After that, I doubt the presiding judge has much influence over when the assigned judge gets the opinion written (unless the presider assigns it to herself, of course). I'd be curious to hear who the other panel members are, as well, and a comparison of each's (including Sotomayor's) average hearing-to-disposition time for published cases.

Some circuits have judges who are notoriously slow in writing, circulating and releasing their opinions. No clue if that's the case in the Second Circuit, or, if it is, if it's relevant here.

As a side issue, if she's successfully confirmed before the opinion is released, they'll have to reargue the case, correct? Could be quite some time before the litigants get a decision. And that's a shame.
5.29.2009 10:21am
martinned (mail) (www):

She's the presiding judge on the appellate panel. The speculation is that she's deliberately avoided rendering an opinion, in order to reduce the amount of material that proponents and opponents might use in confirmation hearings.

...Yet another reason why the continental European pratice of issuing just a single unsigned ruling isn't such a bad idea...
5.29.2009 10:22am
Oren:



As a side issue, if she's successfully confirmed before the opinion is released, they'll have to reargue the case, correct? Could be quite some time before the litigants get a decision. And that's a shame.

I don't see why she couldn't be confirmed, release the decision and then be sworn in as Justice. She'd have to recuse herself from any appeal, but as I understand it, she's a 2CA judge until the swearing-in, not until the Senate vote.
5.29.2009 10:52am
Jay:
She could, in fact, still sit on the panel as a Supreme Court justice operating by designation, I think. Thomas finished up some DC Circuit work that way.
5.29.2009 11:16am
Strict:

She's the presiding judge on the appellate panel. The speculation is that she's deliberately avoided rendering an opinion, in order to reduce the amount of material that proponents and opponents might use in confirmation hearings.


Did I read this correctly? She's known about her nomination to SCOTUS since 2006 or 2007? This "speculation" sounds deranged. Who else is doing this speculation?
5.29.2009 12:06pm
martinned (mail) (www):
@Strict: I think the suggestion is that she was well known as being a likely nominee should a Democrat win in 2008. (One of the conspirators posted something about her confirmation hearings in 1998, when her possiblity of being elevated to the Supremes was already a factor, apparently.)
5.29.2009 12:10pm
William Spieler (mail) (www):
So she'd not only have to know that she'd be a likely nominee should a Democrat win in 2008, but also know that a Democrat would in in 2008?
5.29.2009 12:26pm
CJColucci:
As a side issue, if she's successfully confirmed before the opinion is released, they'll have to reargue the case, correct? Could be quite some time before the litigants get a decision. And that's a shame

Not really. Under the Second Circuit's Local Rule 0.14(b), when one judge is unable for some reason to participate, the two remaining judges, if agreed, will decide the matter. If they are not agreed, a third judge will be vouched in, and review the papers and the tape of the oral argument, and participate in the decision.

If the hold-up is that the opinion is sitting in draft form on Judge Sotomayor's desk, she will either have to finish it up soon or assign it to someone else.

Of course, taking seriously the idea that she has sat on this case for years in order to advance a possible Supreme Court nomination (when she didn't sit on, for example, Ricci or Maloney), is simply deranged.
5.29.2009 12:29pm
martinned (mail) (www):
@William Spieler: Let's do the math from the perspective of 2006/2007. (Let's say 2007. It made sense to have the case re-briefed after Mass v EPA.) After the 2006 elections, there was a better than 50/50 chance that a Democrat would get elected in 2008. Should a Democrat be elected, one would expect two or three seats to upen up during that president's (first) term. After the retirement of O'Connor, there was only one woman left on the court, a fact that was likely to concern a Democratic president particularly. For any Democratic president in those circumstances, a Latin female appelate judge is the trifecta.

Conclusion, should a Democrat be a elected, her chances of being a frontrunner for at least one of the open seats was in the 75-100% range, putting the total likelihood of being a frontrunner in the 40-50% range. That sounds like a pretty good reason to stay away from a potentially dangerous case to me.
5.29.2009 12:34pm
martinned (mail) (www):
O, I probably should have added that it seems unlikely that this case is politically sensitive enough to warrant such drastic measures. After all, the Supreme Court already took the first blow by ruling Mass v EPA the way they did, so a ruling against AEP in this case would normally be less tricky than the Ricci ruling that did come down. (A ruling for AEP would offend only the Sierra Club, but as I noted Judge Sotomayor is so much of a Democratic justice trifecta that she doesn't really have to worry about upsetting them.)
5.29.2009 12:38pm
Spitzer:
BRM: maybe you should send your 1L essay answer to Judge Sotomayor - it appears she may need the help.
5.29.2009 12:44pm
Ron Mexico:
This is clearly not a conspiracy. If she was truly serious about keeping this off of her record she would have gotten in her time machine and prevented the events from occurring like she did so many other times before. Have you read her opinions about man-duck love, the elevated rights of terrorists and pedophiles, and the superiority of pepsi to coke? No you haven't. Why not? Time machine.
5.29.2009 12:51pm
martinned (mail) (www):
And another thing, does any one know from past clerking experience how much wiggle room CoA judges have to avoid ending up in the panel for one case or another?
5.29.2009 12:56pm
Oren:
CJC, am I right in my analysis of when she forfeits her right to act as a 2CA judge in cases pending? That is, can she use the period between confirmation and swearing-in to wrap the case up or is she already disqualified?
5.29.2009 12:58pm
Crunchy Frog:
The EPA still hasn't published regulations on what, if any, greenhouse gas restrictions there will be - until that happens, there is no possible resolution on whether AEP is in violation. Right now, they're not in violation of anything, but six months from now? Who knows.

I suppose Sotomayor could rule to dismiss, but then in six months (or whenever) all the players will be back for another bite of the apple, with the same fact pattern.

I'm not quite as anti-Sotomayor as some here, but I'm pretty close. However, in this case, I'm willing to cut her some slack. Issuing a ruling before the EPA mandates come out would be a waste of time.
5.29.2009 1:33pm
martinned (mail) (www):
@Crunchy Frog: I haven't read the briefs, except to see that it was a suit under public nuisance, not the Clean Air Act. That's the difference between this one and Mass v EPA. While in practice there would be a lot of overlap between these approaches, in practice it is now up to the Court of Appeals, not the EPA, to decide whether a public nuisance suit in these circumstances is really possible, and, if so, whether it is pre-empted by the Clean Air Act. If they rule in favour of the plaintiffs on this, they can always remand back to the District Court to examine what remedial action needs to be taken in light of any EPA decisions.
5.29.2009 2:02pm
Anon. (mail):
When dealing with the government: never attribute to conspiracy what can be adquately explained by incompetence.
5.29.2009 2:53pm
dcuser (mail):
I wouldn't take too seriously the importance of her being the "presiding judge" on the case. In most circuits, that simply refers to the most senior of the three judges on the panel. That would give her power to "preside" over oral argument (meaning tell the litigants when it started and stopped) As the most senior judge on the panel, she would also have the privilege of assigning the majority opinion *if* she happened to be voting with the majority.

If she's not the one writing the opinion, however, then her responsibilities stop there. I'm not aware of any common court practice where the "presiding" judge of each panel has ultimate responsibility to oversee all of that panel's opinions. (Indeed, an attempt to assert such control over other judges' opinions by virtue of that seniority would be seen as quite inappropriate and uncollegial by most judges.)

It's really the Chief Judge's job to make sure that the Court's business as a whole is getting done in a timely way. So he or she is the person who should be keeping track of (and pushing forward) delinquent opinions, no matter who's on the panel. For CA2, the Chief Judge is Dennis Jacobs.
5.30.2009 10:00pm

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