Even though environmental issues have not been a major cog in Supreme Court nominee Sonia Sotomayor's legal career, environmentalists have joined the chorus of left-leaning advocacy groups that have thrown their support behind President Obama's pick for the high court.
"Judge Sotomayor is well-qualified in light of her personal, academic, legal and judicial experience," said Glenn Sugameli, senior legislative counsel and head of Earthjustice's judicial nominations project. "Her knowledge, understanding and service as a federal trial and appellate court judge provide invaluable perspectives for deciding environmental protection and related issues."
Environmentalists primarily are pointing to a single 2007 decision by Sotomayor -- on U.S. EPA's use of cost-benefit analysis in the regulation of pollutants -- as a signal that the potential future justice may side with them on a number of issues.
In that case, Riverkeeper v. EPA, an environmental group challenged an EPA rule relating to cooling-water intake structures in power plants. The agency was set to require hundreds of power plants to modify their water cooling systems, which cumulatively caused the deaths of millions of fish every year.
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.'"
Environmentalists say that ruling may offer a glimpse of her positions on any number of issues relating to environmental regulation that may come before the court -- including on matters relating to climate change.
"Filling the current Supreme Court vacancy with a jurist who is fair-minded and experienced is critical," Sugameli said. "Polluters have attempted to rewrite the Constitution and laws to repeal clean air, clean water and other essential safeguards. Four of the remaining justices unjustifiably attempted to block the Clean Air Act's application to global warming pollution, and to reinterpret the Constitution to selectively prohibit citizen and state access to court in the 2007 Massachusetts v. EPA case."
It appears unlikely that those environmental issues will play much of a role in Satamoyor's confirmation process. Interest groups on the right that have attacked the nomination have largely pointed to her decisions on a number of social policy issues and her comments about the role of the judiciary. And though she has spent more than a decade on the U.S. Court of Appeals, the New York City-based 2nd Circuit typically deals with a relatively narrow range of environmental-based cases.
However, Sotomayor has been involved in one closely watched climate change case, though her court has not issued a ruling on the issue.
As part of a three-judge panel of the 2nd U.S. Circuit Court of Appeals, Sotomayor heard a 2006 case, Connecticut v. American Electric Power Company Inc., in which eight state attorneys general sued a number of major electric utilities, alleging that greenhouse gas emissions amounted to a public nuisance.
After a federal district court ruled in favor of the utilities, the states appealed the case to the 2nd Circuit.
Sotomayor -- who was the lone Democratic nominee on the three-judge panel -- did much of the questioning of both sides and indicated in her comments that she believes there may be a need for regulation of greenhouse gas emissions.
"I have absolutely no idea about the science of global warming," she said at one point during the hearing. "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."
Sotomayor was also was critical of an industry defense that a ruling could pave the way for a slew of other climate change-related nuisance claims. "That's the nature of every tort action," she told the utility attorney.
At the same time, Sotomayor did question whether using public nuisance statues was the proper way to address greenhouse gas emissions when "there are many other remedies available" (Greenwire, June 8, 2006).
The panel has yet to rule on the issue. Environmentalists, however, see the lack of a ruling as little concern.
"It's not much of a concern, it's a curiosity," said Frank O'Donnell of the group Clean Air Watch. "She seems to have an outstanding record."
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