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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.

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How Green Is Sotomayor?

What can we say about Judge Sotomayor's approach to environmental matters? Here are some assessments from Richard Frank (Legal Planet) and Kate Sheppard (Grist).

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The Still Missing Case of Connecticut v. AEP:

On June 7, 2006, the U.S. Court of Appeals for the Second Circuit heard oral argument in Connecticut v. American Electric Power, an action against major utilities seeking injunctive relief for their alleged contributions to the "public nuisance" of global climate change. Judge Sotomayor was on the three-judge panel that heard the case. In 2007, the Second Circuit panel requested supplemental briefing on the effect of Massachusetts v. EPA on Connecticut's claims. Those briefs were submitted in July 2007. It is now two years later, and the case has yet to issue.

Senator Grassley asked Judge Sotomayor about the missing case at today's hearing.

GRASSLEY: Since 2005, you have been a presiding judge on a panel of an appeal filed by eight states and environmental groups arguing that greenhouse gases are a public nuisance that warrant a court-imposed injunction to reduce emissions.

Your panel, in Connecticut v. American Electric Power, has sat on that case for 45 months or nearly three times the average of the Second Circuit. Why, after four years, have you failed to issue a decision in this case?

SOTOMAYOR: The American Bar Association rule on code of conduct does not permit me to talk about a pending case. I can talk to you about one of the delays for substantial a period of time in that decision, and it was that the Supreme Court was considering a case, a Massachusetts case, that had some relevancy or at least had relevancy to the extent that the panel asked the parties to brief further the applicability of that case to that decision.

Judge Sotomayor is undoubtedly correct that she cannot speak about a case that is still pending, and she may not be responsible for the interminable delay. It is worth noting, however, that the supplemental briefing to which she referred was submitted two years ago, and is hardly an excuse for the panel's poor conduct.

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Connecticut v. AEP -- Missing No Longer:

Over the summer I pondered the fate of Connecticut v. American Electric Power, a case argued before the Second Circuit in June 2006. The case, a suit filed by several states against several utilities alleging their emissions of carbon dioxide contributed to the "public nuisance" of global warming, was of particular interest because one of the judges on the case was then-Circuit Judge Sonia Sotomayor.

Today, some three years and three months later, an opinion has finally issued, and it's a whopper. The 139-page opinion, in which Judge Sotomayor did not participate, reverses the district court's dismissal of the case and allows the states' suit to proceed. The opinion begins:

In 2004, two groups of Plaintiffs, one consisting of eight States and New York City, and the other consisting of three land trusts (collectively "Plaintiffs"), separately sued the same six electric power corporations that own and operate fossil-fuel-fired power plants in twenty states (collectively "Defendants"), seeking abatement of Defendants' ongoing contributions to the public nuisance of global warming. Plaintiffs claim that global warming, to which Defendants contribute as the "five largest emitters of carbon dioxide in the United States and . . . among the largest in the world," Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 268 (S.D.N.Y. 2005), by emitting 650 million tons per year of carbon dioxide, is causing and will continue to cause serious harms affecting human health and natural resources. They explain that carbon dioxide acts as a greenhouse gas that traps heat in the earth's atmosphere, and that as a result of this trapped heat, the earth's temperature has risen over the years and will continue to rise in the future. Pointing to a "clear scientific consensus" that global warming has already begun to alter the natural world, Plaintiffs predict that it "will accelerate over the coming decades unless action is taken to reduce emissions of carbon dioxide."

Plaintiffs brought these actions under the federal common law of nuisance or, in the alternative, state nuisance law, to force Defendants to cap and then reduce their carbon dioxide emissions. Defendants moved to dismiss on a number of grounds. The district court held that Plaintiffs' claims presented a non-justiciable political question and dismissed the complaints. See id.

On appeal, Plaintiffs argue that the political question doctrine does not bar adjudication of their claims; that they have standing to assert their claims; that they have properly stated claims under the federal common law of nuisance; and that their claims are not displaced by federal statutes. Defendants respond that the district court's judgment should be upheld, either because the complaints present non-justiciable political questions or on a number of alternate grounds: lack of standing; failure to state a claim; and displacement of federal common law. In addition, Defendant Tennessee Valley Authority ("TVA") asserts that the complaints should be dismissed against it on the basis of the discretionary function exception.

We hold that the district court erred in dismissing the complaints on political question grounds; that all of Plaintiffs have standing; that the federal common law of nuisance governs their claims; that Plaintiffs have stated claims under the federal common law of nuisance; that their claims are not displaced; and that TVA's alternate grounds for dismissal are without merit. We therefore vacate the judgment of the district court and remand for further proceedings.

I've a few other things to attend to, so a more complete analysis will have to wait, but here's a quick take. First, the court's failure to affirm the district court is not too surprising, as the political quesiton argument was always a bit of a stretch. It's also no surprise that, post-Massachusetts v. EPA, the court found that the states had standing. Indeed, the case for parens patriae standing is actually stronger here than in Massachusetts. What is surprising to me, however, is the court's decision is that the federal common law claims are not preempted. Prior to Massachusetts v. EPA this would have been a reasonable conclusion. After the Supreme Court's conclusion that greenhouse gases are pollutants under the Clean Air Act — and are thus subject to extensive federal regulation — preemption of the federal claims would seem to follow under Milwaukee v. Illinois (though the state common law claims could still proceed). I'll be curious to see how the court justified this surprising result.

UPDATE: The New York Law Journal reports here.

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