Supreme Court Nominee Sonia Sotomayor and the Environment
President Barack Obama today named Federal Appeals Court Judge Sonia Sotomayor as his nominee to the U.S. Supreme Court to fill the seat left vacant by Justice David Souter’s upcoming retirement. If confirmed by the Senate, Sotomayor, 54, would be the first Hispanic and the third woman ever to serve on the Supreme Court.
Sotomayor’s Environmental Record
Discussion of Sotomayor’s experience and qualifications is still in the early stages, but most of the debate about her environmental record is currently focused on her 2007 ruling in one major case, Riverkeeper vs EPA, a decision that the Supreme Court recently overturned.
The case developed when the EPA was planning to require more than 500 power plants to upgrade their cooling systems. The water intake systems used by older power plants kill an estimated 3.4 billion fish and shellfish every year and draw 214 billion gallons of water from U.S. waterways every day. The closed-cycle cooling systems used by newer plants reduce the death rate by 98 percent, but would cost 10 times as much to install as alternative technology that could reduce the number of fish killed by 80 percent to 95 percent.
The Clean Water Act requires remedies that "reflect the best technology available for minimizing adverse environmental impact,” and the EPA wanted to choose the “best technology” on the basis of a cost-benefit analysis that would balance the cost of installing the new equipment against the value of the fish and shellfish that would be killed.
Sotomayor’s Controversial Environmental Ruling
Sotomayor ruled that the law doesn’t offer that kind of wiggle room, essentially saying that Congress, in passing the Clean Air Act as it is written, has already decided that using better technology to achieve greater environmental protections is worth the cost. In her 2007 decision, Sotomayer wrote:
“The Agency is therefore precluded from undertaking such cost-benefit analysis because the [best technology available] standard represents Congress’s conclusion that the costs imposed on industry in adopting the best cooling water intake structure technology available (i.e., the best-performing technology that can be reasonably borne by the industry) are worth the benefits in reducing adverse environmental impacts.”
Some observers are claiming that her decision in this one case shows a clear tendency for Sotomayor to be pro-environment and anti-business. Personally, I’m more inclined to see Sotomayor’s ruling in Riverkeeper vs EPA as far less definitive of her environmental views and to go along with Patricia Millett, co-leader of the Supreme Court and applellate practice at Akin Gump Strauss Hauer & Feld.
In discussing Sotomayor’s 2007 ruling in the case and whether it signaled a hard-line attitude toward environmental protection, Millett told BusinessWeek: “She was taking the statute at its word, so I don't think you can really read much into it." I agree.
Sotomayor’s Life and Judicial Experience
Sotomayor grew up in a South Bronx housing project and went on to graduate summa cum laude from Princeton and to receive her law degree from Yale, where she was editor of the Yale Law Journal. After law school, she spent five years as an assistant state prosecutor in Manhattan under legendary District Attorney Robert Morgenthau, and was in private practice for nearly a decade before being appointed a federal judge by President George H.W. Bush in 1992, and later elevated to the U.S. 2nd District Court of Appeals by President Clinton in 1998.
Sotomayor would bring more federal judicial experience to the Supreme Court than any Justice in a century, and more overall judicial experience than any Justice in the past 70 years.
To learn more about Judge Sotomayor’s decision in Riverkeeper vs EPA and why the Supreme Court overturned her ruling, see:
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