The New York Times reports that “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 2006. “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.” ”

Full story in The New York Times.

Photo from the LA Times.