SUPREME COURT:

Sotomayor's record on enviro issues faces scrutiny as hearings begin

The Senate Judiciary Committee began hearings today on the nomination of Sonia Sotomayor to the Supreme Court. And while environmental issues are not expected to play a significant role in the weeklong proceedings, environmental and business groups will be examining Sotomayor's answers for indicators about how she might rule from the bench.

"Coming from the 2nd U.S. Circuit Court of Appeals, she didn't get as many environmental cases as she would have on the 9th or 10th circuits, which means her track record is fairly limited," said Jay Austin, who heads the Environmental Law Institute's program monitoring Supreme Court environmental litigation.

Nonetheless, environmental groups have uniformly backed the nominee, with 60 national, regional, state and local nonprofit organizations signing a letter last week that expressed their support to members of the Judiciary Committee.

"Judge Sotomayor's record evinces no clear bias in favor of or against environmental claims," the groups wrote. "Instead, it reflects intellectual rigor, meticulous preparation, and fairness. Her record demonstrates a consistently balanced and thoughtful review of complex legal issues. She has interpreted and applied the laws as Congress intended and safeguarded constitutional rights."

As the Supreme Court has taken an increasing interest in environmental-themed cases, advocacy and legal interest groups have come to view the nomination with new significance, said Glenn Sugameli, senior counsel for Earthjustice.

"I was impressed with the number of groups that signed on to our letter -- it's a pretty broad breadth, and many of them normally decline to take a stance in the judicial confirmation process," Sugameli said. "There are major implications for imposing and enforcing environmental laws, and even if a case is not specifically about an environmental issue, it may have very broad application for the environment by opening the door to access to the courts or denying Congress the authority it needs to protect workers, consumers and the environment."

As a judge on the 2nd Circuit, Sotomayor heard many business-themed cases, with no obvious pro- or anti-business leaning. Perhaps as a result of her mixed record, business interests have remained largely silent on the nominee up until now.

"We are in the midst of reviewing Judge Sotomayor's extensive record and have not yet taken a position on her nomination," said Robin Conrad, a lawyer with the U.S. Chamber of Commerce.

The group's Constitutional & Administrative Law Advisory Committee is expected to make a determination sometime this week, she said.

The hearings

Outnumbered and wary of opposing the first Hispanic and third female justice appointed to the bench, Republicans and conservative-leaning groups have nonetheless set upon a strategy to raise concerns about Sotomayor's record and personal beliefs on hot topics such as race, gun rights and property rights.

Meanwhile, Democrats aim to use the hearings to portray the longtime jurist as an accomplished, pragmatic and thoughtful judge who sticks to the law.

While lawmakers have been generally unwilling to delve into specifics on what questions they will ask Sotomayor, several have indicated that issues such as civil rights and the Commerce Clause are likely to be among the key topics.

The Constitution's Commerce Clause, which grants the federal government the authority to regulate interstate commerce, has been used by Congress as the basis for most key environmental laws as well as numerous other federal regulations.

In the 2001 case National Electrical Manufacturers Association v. Sorrell, Sotomayor joined the majority decision rejecting industry claims that a Vermont law on labeling of mercury-containing light bulbs impermissibly burdened interstate commerce.

"This was a case that had implications more generally in that it showed she is not someone who blindly agrees with arguments that complying with industry law will destroy a business," Sugameli said. "It's important for judges to see through the kinds of charades that industry groups often try to argue on behalf of avoiding compliance with state and federal regulatory laws."

In the 2006 non-environmental case U.S. v. Giordano, Sotomayor rejected an attempt to limit Congress' regulatory power under the Commerce Clause, holding that a national telephone network was an instrumentality of interstate commerce even if the calls in question occurred within a single state.

In recent years, a number of federal environmental laws, including the application of the Clean Water Act to "isolated" wetlands and the use of the Endangered Species Act to protect purely intrastate species, have been challenged as exceeding Congress' commerce powers.

Republicans on the Judiciary Committee will likely also raise the issue of "empathy" in judicial decision-making, a reference to one of the stated qualities that President Obama said he was looking for in a Supreme Court nominee.

Empathy should not be confused with ideology, said environmental legal scholar Patrick Parenteau of Vermont Law School.

"I see her in the mold of Justice [John Paul] Stevens who, when asked to interpret congressional intent, begins with what Congress was trying to accomplish. What were the concerns that motivated lawmakers to pass the Clean Water Act? And why did they choose a particular method to address those concerns?" Parenteau said.

Parenteau pointed to the recently decided Supreme Court case Coeur Alaska v. Southeast Alaska Conservation Council as an example: "Sotomayor would have considered what Congress was really thinking when it passed the CWA and asked questions such as 'Did they contemplate that the Army Corps of Engineers could issue a permit that would literally destroy a lake?' And I think she'd look at that and say, 'Of course not.'"

Two key cases

Meanwhile, Republicans on the Judiciary Committee may also push Sotomayor for an explanation as to why a complex climate lawsuit remains among the unfinished business on the 2nd Circuit's docket.

Eight states, New York City and environmental groups filed a lawsuit against the nation's five largest electric utilities in 2004, alleging that the companies had created a public nuisance with greenhouse gas emissions that must be reduced to counteract the effects of global warming.

Sotomayor and two other judges on the 2nd Circuit heard oral arguments in the case nearly three years ago but have yet to issue an opinion. The case goes to the heart of a question that critics intend to pose: whether Sotomayor is willing to issue opinions that create new law.

Joseph Guerra, the lead attorney for the electric utility industry, emphasized that message during oral arguments in June 2006. "What they are saying is that you get to decide whether Congress has done enough," Guerra said. "This is a major national and international problem, and under their comprehensive test, if you don't either give them a remedy or regulate directly in some fashion that includes limits, they are saying that you, the unelected judiciary, can just overrule that political judgment by the branch of government that is responsive to the entire society. That's just a breathtaking proposition."

Another ruling likely to receive scrutiny during the hearings is the judge's 2007 opinion in Riverkeeper v. EPA, which held that the Clean Water Act precluded U.S. EPA from using cost-benefit analysis to determine the best technology available to protect fish from power plant water intakes. In April, the Supreme Court reversed that decision in a 6-3 opinion by Justice Antonin Scalia.

"She decided over a dozen issues, and only one of them was appealed," Earthjustice's Sugameli said. "She wasn't reversed. She was reversed on one issue, and I would argue that she was incorrectly reversed. The Supreme Court can change the rules or get it wrong. There were at least three judges who disagreed, and Justice [Stephen] Breyer had a separate view that the case should be remanded."

Sotomayor's opinion in Riverkeeper demonstrated her fact-based and detail-oriented approach to questions of law, according to Jonathan Cannon, an environmental law professor at the University of Virginia.

"She was following the more obvious reading of the precedent that the court handed down some years ago," Cannon said. "Today's Supreme Court read that precedent a different way. The court shifted the presumption away from an earlier rule that said cost-benefit analysis was not permitted unless specifically authorized by Congress to a different rule where cost-benefit analysis could be used when Congress was silent on the issue."

The hearings began this morning with opening comments from Judiciary Committee members, Sotomayor and the senators from the judge's home state, New York, Democrats Charles Schumer and Kirsten Gillibrand.

Questioning of Sotomayor will begin tomorrow, and each of the 19 committee members will be given 30 minutes to address Sotomayor during the first round of questions and 20 minutes during the second round.

A Judiciary Committee spokeswoman said the entire week has been blocked off for the hearings, but it is not clear whether that will be necessary. No committee vote has been scheduled.

Senate Majority Leader Harry Reid (D-Nev.) has said he intends to hold a full-Senate vote on the nominee before breaking for August recess to ensure Sotomayor takes her place on the bench for the court's term, which begins Oct. 6.

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