President Obama has chosen federal appeals judge Sonia Sotomayor for the Supreme Court. The African American Environmentalist Association has an extended discussion of her energy and environmental views, reprinted below:
Judge Sonia Sotomayor [above] wrote an opinion in Riverkeeper v. EPA, 475 F.3d 83 (2d Cir. 2007), that the EPA was not permitted to engage in a cost-benefit analysis to determine “best technology available”; instead, it could consider cost only to determine “what technology can be ‘reasonably borne’ by the industry” and whether the proposed technology was “cost-effective” – which, she concluded, requires the EPA in turn to determine whether the technology at issue is “a less expensive technology that achieves essentially the same results” as the best technology that the industry could reasonably bear.
The case was a challenge to an EPA rule regulating cooling-water intake structures at power plants. To minimize the adverse impact on aquatic life (which could otherwise be trapped against the intake structure or, if small enough, sucked into the pipes themselves), the Clean Water Act requires the intake structures to use the “best technology available,” without specifying what factors the EPA should consider in determining what constitutes the “best technology available.”
Judge Sotomayor explained:
“assuming the EPA has determined that power plants governed by the Phase II Rule can reasonably bear the price of technology that saves between 100-105 fish, the EPA, given a choice between a technology that costs $100 to save 99-101 fish and one that costs $150 to save 100-103 fish. . . could appropriately choose the cheaper technology on cost-effectiveness grounds.”
On this issue, Sotomayor remanded to the EPA, finding it “unclear” how the EPA had arrived at its conclusions and, in particular, whether the EPA had improperly weighed costs and benefits.
Sotomayor also held that the EPA could not consider restoration measures — such as restocking fish to compensate for fish killed by an intake system — when determining the best technology available for a particular power plant. Sotomayor wrote that “[r]estoration measures are not part of the location, design, construction, or capacity of cooling water intake structures, and a rule permitting compliance with the statute through restoration measures allows facilities to avoid adopting any cooling water intake structure technology at all, in contravention of the Act’s clear language as well as its technology-forcing principle.” Finally, Sotomayor also determined that, at a minimum, EPA’s determination that the CWA provision at issue applies to existing and new facilities was a reasonable interpretation of the statute.
The industry plaintiffs filed petitions for certiorari, which the Supreme Court granted in April 2008 to review the cost-benefit issue. AAEA attended the December 2, 2008 Oral Arguments at the U.S. Supreme Court. By a vote of 6-3, the Court reversed. In an opinion by Justice Scalia, the majority deemed “[i]t . . . eminently reasonable to conclude that” the CWA’s silence with regard to determining the best technology available “is meant to convey nothing more than a refusal to tie the agency’s hands as to whether cost-benefit analysis should be used, and if so to what degree.” [Source: Supreme Court of the U.S. (SCOTUS) Blog]
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Language Intelligence: Lessons on persuasion from Jesus, Shakespeare, Lincoln, and Lady Gaga
But does she believe the endangered fish have a constitutional right to privacy?
lol @ above
What’s her position on roe?
[JR: It's tasty when spread on fine crackers?]
The AAEA? Really? Joe, this is a fringe outfit with no support in the African-American community that has long soaked money from energy companies wanting to get “minority community support.” I first ran into them in 2003 when they lobbied against McCain-Lieberman.
http://www.sourcewatch.org/index.php?title=African_American_Environmentalist_Association
They do not strike me as a reliable source whatsoever. They are pro-nuclear, pro-coal, pro-DDT (yes, you read that right). Their concern in the Riverkeeper case was to support the more restrictive Bush administration view of the law. I read that decision when it came out and recall there were problems with it. I’m not sure about Judge Sotomayor’s general record on environmental issues, but as I recall this was a fairly typical remand although I am sure Riverkeeper and supporting groups were not happy with not getting full review on the restoration issue, but that’s a matter for the experts (I don’t know much about the CWA but the remediation standard is not quite the same as the Clean Air Act ‘best available control technology’).
In any event, the more important point is that Judge Sotomayor is nominated for a Supreme Court currently in the hands of a majority under CJ Roberts which is determined to eviscerate environmental regulation on standing and standards of review. Jeff Toobin’s article in the current issue of The New Yorker about the hard-conservative approach of Roberts is worth reading, touching briefly on his views on standing. Justice Souter has been a good vote on environmental decisions (after voting the wrong way on Lujan, the standing case from 1992 that Toobin summarizes), and voted the right way on Mass v. EPA. The views I’ve seen including the one below don’t believe Judge Sotomayor would move far from his positions. Assuming she is confirmed, and depending on who retires next, the next appointment may significantly change the Court. This of course matters a great deal in the inevitable review of whatever climate law Congress eventually passes.
http://legalplanet.wordpress.com/2009/05/01/justice-souter-and-the-environment/
[JR: Thanks for the tip. Since they were basing their analysis on SCOTUSblog, it seemed okay to me. But I'll be more careful about email tips from my source here in the future.]
Also I just saw a Greenwire story that suggests Judge Sotomayor’s decision in Riverkeeper was seen as good by legal experts in the environmental community:
“But the agency sought to choose the “best technology” for the upgrade, using a cost-benefit analysis that was based on both the price of the newer equipment and the potential marine life that would be killed. The top-of-the-line technology could reduce fish kills by as much as 98 percent, though it cost roughly 10 times as much as a different type of equipment that would reduce deaths by a smaller amount.
“Sotomayor issued an opinion in which she declared that the Clean Water Act did not give EPA the leeway to do such a cost-benefit analysis.
“In early 2008, the U.S. Supreme Court reversed the decision in a 6-3 ruling, with Justice Antonin Scalia stating in an opinion that EPA could use such an analysis in crafting its regulations.
‘”This was considered a defeat for environmentalists and a victory for advocates of cost-benefit analysis,” Dan Farber, an environmental law expert at the University of California, Berkeley, wrote yesterday on his blog, “Legal Planet.” “Although Scalia claims to believe in following statutory language to the letter, Sotomayor’s interpretation clearly was more faithful to the statute’s demand that EPA’s standards ‘reflect the best technology available for minimizing adverse environmental impact.’”‘
The article also notes she is on the panel that is reviewing Connecticut v. EPA, the climate change challenge to the Bush administration on nuisance grounds. She was quoted saying, “I have absolutely no idea about the science of global warming… But if the science is right, we have relegated ourselves to killing the world in the foreseeable future. Not in centuries to come but in the very near future.”