Mystery of the “Missing Sotomayor Opinion” Solved

On Monday, the United States Court of Appeals for the Second Circuit ruled broadly in favor of eight states, the City of New York, and several environmental organizations, allowing them to proceed with a lawsuit against six major power companies charging that their greenhouse gas emissions constitute a public nuisance.  The ruling overturned a district court decision dismissing the case on the ground that the lawsuit amounted to a non-justiciable political question.

Doug Kendall, President of Constitutional Accountability Center, issued this statement on the Second Circuit’s ruling:

Yesterday’s opinion is profoundly significant, not only for its recognition of the climate crisis, but also for its affirmation of the historical role that courts have played in addressing environmental problems through their common law authority.  Written by two Republican-appointees, the opinion is a welcome challenge to efforts led by other conservatives, on the Supreme Court and off, to define good judging by a willingness to narrow the role of the federal courts and shut the courthouse doors to those seeking justice, including in environmental cases.

The Court’s ruling also solves what Sonia Sotomayor’s critics called the “mystery of the missing Sotomayor opinion.”  Then-Second Circuit Judge Sonia Sotomayor was part of a three judge panel that originally heard the case in June 2006, but not part of the ruling issued yesterday for the obvious reason that she is now sitting on the Supreme Court.  According to Kendall: “we now know what was taking the panel so long: it was producing a comprehensive 139-page ruling on a profoundly important set of topics.  This opinion was clearly worth the wait.”    

* * * * * * *

Constitutional Accountability Center is a think tank, public interest law firm and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history.  CAC’s more detailed discussion of yesterday’s Second Circuit ruling in Connecticut v. American Electric Power Company, Inc. can be found here on our Warming Law blog.

Contact: Doug Kendall
202-296-6889, Ext. 3