Our guest blogger is Reece Rushing, director of regulatory and information policy at American Progress.
Judge Sonia Sotomayor, President Obama’s selection to replace Justice David Souter on the Supreme Court, is likely to be solid on the environment, based on her record on the Second Circuit of Appeals. In 2007, she authored the decision to strike down an Environmental Protection Agency (EPA) Clean Water Act rule that had been corrupted by the Bush White House Office of Information and Regulatory Affairs (OIRA) on behalf of energy companies. Georgetown law professor and American Progress affiliated scholar Lisa Heinzerling, now senior counsel for the EPA, explained at the time that Sotomayor’s Riverkeeper v. EPA decision was a “huge victory“:
In a huge victory for fish and other fans of the Clean Water Act, the Second Circuit last week ruled that the Environmental Protection Agency may not use cost-benefit analysis in setting standards for cooling water structures used at existing power plants around the country. . . .
The court ruled that the Clean Water Act does not permit the use of cost-benefit analysis in setting these standards or in allowing deviations from the standards. Quite reasonably, the court held that the agency could engage in a form of cost-effectiveness analysis in setting standards, by identifying the level of protection afforded by state-of-the-art technology and then allowing use of cheaper but equally effective technologies in meeting the standards. But the court clearly ruled out OIRA’s favorite technique for undoing regulatory advances, cost-benefit analysis.
As OMB Watch explained in 2002, EPA originally “sought to require the 59 largest plants in the most ecologically sensitive areas to meet the performance achievable by a closed-cycle cooling system, which reduces fish kills by up to 98 percent by recirculating or reusing water.” But by “ignoring the requirements of the law” and applying corporate-friendly cost-benefit analysis to the question of the “best technology available for minimizing adverse environmental impact”, OIRA “embraced alternative, less protective measures urged by energy companies — including Cinergy, Edison Electric, and Public Service Electric & Gas (PSE&G), among others.” Riverkeeper noted that this weaker rule “would allow existing plants to kill 20 to 1000 times more fish” than the stronger proposed mandate.
This April, Sotomayor’s decision was wrongly struck down by the Supreme Court. Justice Antonin Scalia wrote the 6-3 opinion to uphold Bush’s activist interpretation of the Clean Water Act, with Souter, Ruth Ginsberg, and John Stevens in dissent. Scalia’s decision reversed not only the Second Circuit decision but earlier Supreme Court precedent. Scalia effectively ruled that Congressional silence equals consent, writing that the Clean Water Act’s “silence is meant to convey nothing more than a refusal to tie the agency’s hands as to whether cost-benefit analysis should be used.” As Justice Stevens wrote in his dissent:
Section 316(b) neither expressly nor implicitly authorizes the EPA to use cost-benefit analysis when setting regulatory standards; fairly read, it prohibits such use.
If Sotomayor’s record on the Second Circuit is any guide, she will hold with Justice Souter’s example of putting science and the law above the interests of corporate polluters.
Download the Second Circuit opinion.
Download the Supreme Court decision.