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.