Posted by Jonathan Adler:
The Still Missing Case of *Connecticut v. AEP*:
http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247628551
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.
[1]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.
References
1.
http://www.washingtonpost.com/wp-dyn/content/article/2009/07/14/AR2009071402234_pf.html
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