Sotomayor and the Environment

Yesterday President Obama nominated Judge Sonia Sotomayor to replace retiring Justice David Souter* on the U.S. Supreme Court. The choice was significant for several reasons, not least of which is that she will help to fill some demographic gaps on the current court. While other sites will cover those aspects in more detail, I would like to focus on how the choice might affect environmental policy.

During the past eight years, the federal court system frequently served as the last bastion to reverse environmentally harmful Bush administration policies. Federal lawsuits covered topics from endangered species protection to air and water pollution to punitive damages in the Exxon Valdez case. Perhaps the most significant recent case was Massachusetts v. EPA, in which the Supreme Court ruled that the EPA has authority to regulate greenhouse gas emissions under the Clean Air Act and that it must do so if greenhouse gas emissions endanger public health and welfare. Last month, the EPA found that such emissions do endanger public health, thus triggering future regulations. Whether reduction of greenhouse gases comes via EPA regulations or a legislated cap-and-trade program, the specifics are likely to wind up in federal courts, perhaps even at the Supreme Court. Likewise, the new administration's wildlife protection policies may well trigger lawsuits.

Thus Souter's replacement is likely to have a significant impact on environmental policy. Given what I have read so far, Sotomayor has faced relatively few environmental cases. One of her opinions in a case reviewed by SCOTUSblog gives some reason for optimism:

Sotomayor’s most notable environmental-law opinion is Riverkeeper v. EPA, 475 F.3d 83 (2d Cir. 2007), 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.” Sotomayor wrote and opinion holding 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. Thus, she 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 wrote that restocking fish would not fulfill the Clean Water Act's requirements. Unfortunately her decision was subsequently overturned by a Supreme Court decision written by Justice Scalia. In this opinion, she takes a firm stand in favor of strong federal regulation to protect wildlife. Presumably this would extend to other environmental policy questions as well.

I would not want to put too much emphasis on a single opinion, especially since other cases before the Second Circuit have not fared as well. Sotomayor would also not shift the Supreme Court's current balance on environmental issues. As noted by SCOTUSblog, Justice Souter was one of the three dissenters when Sotomayor's ruling was overturned, suggesting that they have similar views. At the very least, she should prevent the court from becoming worse, and she ought to continue Souter's strong environmental voting record.

Given what we know, I think Sotomayor is a good pick.

* Speaking of Souter, I would be remiss not to mention this Onion report.