'Mystery' climate case might become issue in Sotomayor confirmation

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1 June 1, 2009 'Mystery' climate case might become issue in Sotomayor confirmation By DARREN SAMUELSOHN, Greenwire A complex climate lawsuit dating to former President George W. Bush's first term remains among the unfinished business on the docket of Supreme Court nominee Sonia Sotomayor. At issue is a lawsuit filed by eight states, New York City and environmental groups against the nation's five largest electric utilities in 2004, alleging that the companies had created a public nuisance with greenhouse gas emissions that must be reduced to counteract the effects of global warming. Sotomayor and two other judges on the 2nd U.S. Circuit Court of Appeals heard oral arguments in the case nearly three years ago -- the anniversary is Sunday, June 7 -- but have yet to issue an opinion. "It's just a big mystery," said Matthew Pawa, a Massachusetts-based private attorney who helped file the lawsuit on behalf of the Open Space Institute and Audubon Society of New Hampshire. The global warming case goes to the heart of a question that opponents are expected to raise during Sotomayor's confirmation: whether she is willing to issue opinions that create new law. Joseph Guerra, the electric utility industry's lead attorney, underscored that debate during the oral arguments in June "What they are saying is that you get to decide whether Congress has done enough," Guerra said. "This is a major national and international problem, and under their comprehensive test, if you don't either give them a remedy or regulate directly in some fashion that includes limits, they are saying that you, the unelected judiciary, can just overrule that political judgment by the branch of government that is responsive to the entire society. That's just a breathtaking proposition."

2 Indeed, the plaintiffs are seeking a court injunction ordering the power plants to reduce their emissions by about 3 percent per year over the next decade -- their best solution for dealing with the threat of climate change absent action by Congress or the White House. Officially, the 2nd Circuit does not have to explain why it is taking so long to issue a decision in the case alleging violations of federal common law against American Electric Power Co. Inc., Cinergy Corp., Southern Co., Xcel Energy Inc., and the Tennessee Valley Authority. "Just because there isn't a decision doesn't mean it's not under active consideration," Catherine O'Hagan Wolfe, lead clerk for the 2nd Circuit, said Friday. Wolfe added that the 2nd Circuit has been home over the last decade to a "crushing number of immigration filings." In 2008, for example, the 2nd Circuit had 2,865 immigration cases out of 10,300 in the entire country. The 2nd Circuit -- which has jurisdiction over Connecticut, New York and Vermont - - is also notoriously slow in issuing opinions, ranking 11th out of the 13 circuits in the country. According to the Administrative Office of the U.S. Courts, the 2nd Circuit in 2008 took an average of 17.5 months from notice of an appeal to disposition on a case, compared with a national average of 12.7 months. 'A complicated case' The delay has been noticed, with speculation growing following Sotomayor's nomination last month to fill a vacancy on the Supreme Court. "You might conclude from what's going on that it's a dissenting opinion," said Richard Samp, chief counsel at the Washington Legal Foundation, which filed a brief in the case siding with utility companies on behalf of Sen. James Inhofe (R-Okla.) "It's a complicated case. Complicated cases do take longer. Why it should take three years? I don't know." Some postings on legal blogs have questioned whether Sotomayor intentionally slowed the case down to avoid issuing an opinion that would spark controversy for a possible confirmation to the Supreme Court -- an unlikely scenario, Samp says. "She could not have been thinking seriously she'd be nominated for a Supreme Court seat until last November," he said. "And she certainly didn't know for sure until a

3 month ago that there'd be a Supreme Court opening this year. It's hard for me to believe that until at least a month ago that any judge anywhere would be manipulating their docket to avoid a potentially embarrassing decision." Jonathan Adler, the director of the Center for Business Law and Regulation at Case Western Reserve University School of Law, predicted that the missing global warming opinion would be an issue during Sotomayor's confirmation hearing in the Senate. "It seems to me it's guaranteed to come up at the hearing, especially insomuch as critics of the nomination want to be able to raise something other than 'You're not the kind of judge I'd appoint,'" he said. "This would be a non-ideological-based criticism." The delay could create a difficult situation for Sotomayor, especially if the three-year lag falls on one of the other judges who presided in the case: Joseph McLaughlin and Peter Hall, who were appointed, respectively, by former President George H.W. Bush and President George W. Bush. "It'll put her in a somewhat difficult position," Adler said. "It's not clear how much she can answer." A judge's proficiency can draw scrutiny in the Senate, though Sotomayor may not have any problems there. According to Lexis, Sotomayor authored 422 opinions during her six years as a federal judge in the Southern District of New York. And she has written 232 opinions on the 2nd Circuit over nearly 11 years on the bench, as well as 22 concurring opinions and 21 dissents. Looking at Mass. v. EPA So far, the 2nd Circuit's only sign that it was still active on the case came nearly two years ago, when it requested another round of briefings to address the effect of the Supreme Court's April 2007 decision in Massachusetts v. EPA. That 5-4 opinion ordered a new federal study on the links between greenhouse gas emissions and threats to public health and welfare, raising the prospect of U.S. EPA regulations on everything from automobiles to electric utilities.

4 New York state attorneys argued that the 2nd Circuit should weigh in regardless of the Supreme Court decision, because there was no guarantee that EPA or Congress would ever get to the point of acting on the climate issue. Representatives for the power companies countered that Congress and the White House have sole authority for dealing with global warming, and that the courts "lack the constitutional authority and institutional competence to resolve these policy issues." Tracy Hester, an attorney with Bracewell & Giuliani, said scrutiny of the Supreme Court opinion no longer carries much weight as an explanation for the 2nd Circuit's holdup. "We're certainly past the one-year anniversary of that one," said Hester, whose law firm represented a coalition of labor groups in the case, including the United Mine Workers of America, the International Brotherhood of Electrical Workers and the International Brotherhood of Teamsters. Litigants in the case have not let up in their pleading. New York officials (pdf) the 2nd Circuit in September 2008, urging the court to issue its decision "as soon as possible.... Because climate change is such a pressing problem, plaintiffs need to know what legal tools can be used to address it." Pawa sent his own series of letters to both the and, a few weeks ago, to the 2nd Circuit's chief judge, (pdf). "We are concerned that almost three years have passed since oral argument without a decision in this case, which addresses a matter of great importance to the environment and to public welfare," Pawa said. Planning for Sotomayor's confirmation The court is also prepared in the event Sotomayor gets confirmed to the Supreme Court before it issues its opinion. According to Wolfe, the other two judges could rule without Sotomayor if they are both in agreement. If they are on different sides, then they would need to request a new third judge to join the case. Wolfe said it would then be decided if the court needed to hold another round of oral arguments.

5 There's also the question of whether Sotomayor would be allowed to hear the case should it get appealed to the Supreme Court, a scenario that attorneys on both sides of the issue have predicted. Chief Justice John Roberts recused himself after his 2005 appointment on a case over the federal government's war powers because he had played a role in the lawsuit while serving on the Washington D.C.-based federal appeals court. But it's unclear if the case will ever get that far. A related nuisance lawsuit dealing with climate change brought by California against the nation's auto companies is now on hold in the 9th Circuit at the state's request because of the Obama administration's plans to address greenhouse gases, as well as Chrysler's bankruptcy. A California official said the state is evaluating whether the case should continue or be dismissed outright. Given the work that has gone into the case, Adler said, the 2nd Circuit "has an obligation to issue an opinion." And Pawa said he will insist on a decision, even with the prospect of EPA climate regulations following the Supreme Court's 2007 opinion. "I've been hearing the prediction that EPA is going to regulate greenhouse gases from coal-fired power plants for a long time," he said. "And I'll believe it when I see it." Copyright 2009 E&E Publishing. All Rights Reserved.