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Waiting for Sotomayor: 3-year delay in greenhouse gas case

  • Story Highlights
  • Judge Sonia Sotomayor awaits confirmation hearings for Supreme Court seat
  • Sotomayor is currently a judge on the 2nd U.S. Circuit Court of Appeals
  • Greenhouse gas emissions case has been pending in the court for 3 years
  • Case involves state claims of climate damage from power company discharge
By Bill Mears
CNN Supreme Court Producer
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WASHINGTON (CNN) -- Judge Sonia Sotomayor may not know for some time when her Supreme Court confirmation hearings will be held. It could be next month or perhaps in September.

Judge Sonia Sotomayor currently serves on the 2nd U.S. Circuit Court of Appeals.

Judge Sonia Sotomayor currently serves on the 2nd U.S. Circuit Court of Appeals.

As a waiting game, however, that pales in comparison to an important environmental lawsuit that has been pending at Sotomayor's court for almost three years.

She was the presiding judge in a case involving state claims against power companies over greenhouse gas emissions. The case was filed in the 2nd U.S. Circuit Court of Appeals in September 2005. Sotomayor was one of three judges who heard oral arguments in the case the following June. A subsequent public hearing was held July 2007. Since then, nothing.

Lawyers involved in the case tell CNN they think that -- for the past few months, at least -- larger political concerns over her Supreme Court nomination may have something to do with the delay.

Appeals courts have no set deadline for deciding cases, but it is highly unusual for a case to linger this long unresolved. It is the oldest pending case at the New York-based court.

The Supreme Court almost always finishes up its entire caseload from the annual term by late June. Video Watch Sotomayor meet with senators in Washington »

Studies by the Administrative Office of the U.S. Courts found an average of about 18 months from initial filing of a lower court appeal to final disposition. The time lapse from oral argument to a ruling normally is six months. The high court averages are much less, due in part to the comparatively smaller caseload.

The case awaiting action from the 2nd Circuit -- Connecticut v. American Power Co. (05-5104) -- involves state claims of climate damage from power company discharge. Two other similar lawsuits are pending in other federal appeals courts.

Eight state attorneys general sued five power companies under "public nuisance" laws, targeting the utilities' greenhouse gas emissions. A federal judge had earlier dismissed the case, saying the courts were not the proper forum for resolving the dispute because it required "identification and balancing of economic, environmental (and) foreign policy, and national security interests" of a "transcendently legislative nature."

A divided high court in 2007 ruled for a group of states that argued the federal Environmental Protection Agency was required by law to regulate carbon dioxide emissions from cars and factories, over the objections of the Bush administration.

Several lawyers involved in the 2nd Circuit litigation have grown increasingly anxious over the delay in recent weeks. Much of the behind-the-scenes speculation points to Sotomayor's recent nomination to the high court as a possible reason for the continued delay, given the controversial nature of the case.

"The consensus just grows that her nomination is behind all this," said one private attorney who asked not to be identified because she was not authorized to speak for her clients. "Many believe they (the court) may wait further to issue it (the opinion) until after her confirmation. That just raises the stakes for what impact this ruling would have."

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Several lawyers on both sides of the issue say the ruling, if issued by month's end, could be a political flashpoint over the 54-year-old judge's views on how courts should resolve such politically sensitive issues. Many cite her 2005 comments at Duke University where she noted the "court of appeals is where policy is made."

The conclusions reached by Sotomayor and others on that bench in this case could go to the heart of just how courts should deal with the political question argument.

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