SUPREME COURT:

Sotomayor hearings repeatedly touched on enviro issues

Supreme Court nominee Sonia Sotomayor addressed major issues of concern to the environmental community during Senate Judiciary Committee hearings that ended yesterday, shedding some light on how she would approach cases concerning regulatory takings, the Constitution's Commerce Clause, as well as her views on upholding congressional action regarding protective measures such as the Clean Water Act.

"Environmental issues received more play than some may have thought they would during the week," said Glenn Sugameli, senior counsel for Earthjustice.

During her first day of questioning, Sen. Herb Kohl (D-Wis.) brought up the issue of precedent, asking Sotomayor her opinion on the controversial 2005 decision in Kelo v. City of New London, which affirmed the right of local and state governments to take private property for economic development purposes.

"Kelo is now a precedent of the court," Sotomayor said. As a justice on the Supreme Court, "I must give it the deference that the doctrine of stare decisis would suggest."

Sen. Chuck Grassley (R-Iowa) also brought up the Kelo case and pressed Sotomayor to explain her 2006 decision in Didden v. Village of Port Chester, which critics argue applied and extended Kelo.

While on the 2nd U.S. Circuit Court of Appeals, Sotomayor sat on a panel that heard the case challenging the village's use of eminent domain in a dispute between a property owner and a private company designated as the developer of an urban renewal area.

During his allotted 30 minutes for questioning, Grassley also asked Sotomayor to address the Supreme Court's reversal last term of her decision in Riverkeeper v. EPA.

The judge's 2007 opinion 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 high court reversed that decision in a 6-3 opinion by Justice Antonin Scalia.

"Do you find it unreasonable that the EPA was willing to allow money to be spent in a cost-effective manner by not requiring billions of additional dollars to be spent to save a minimal number of additional fish?" Grassley asked the nominee.

Several other members of the committee brought up the Riverkeeper case during the week.

Day two

On Tuesday, Grassley concluded his time by asking Sotomayor to explain 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.

"Why, after four years, have you failed to issue a decision in this case?" Grassley asked the nominee.

Citing the American Bar Association code of conduct, as expected, Sotomayor declined to discuss the pending case except to say: "I can talk to you about one of the delays for a substantial period of time in that decision, and it was that the Supreme Court was considering a case [Massachusetts v. EPA] that had some relevancy or at least had relevancy to the extent that the panel asked the parties to brief further the applicability of that case to that decision."

During her allotted 30 minutes for questioning, Sen. Dianne Feinstein (D-Calif.) asked Sotomayor about her views on the Constitution's Commerce Clause, particularly as it relates to the environment.

"One of the main concerns is that [the court's] interpretation, which is much more restrictive now, could impact important environmental laws, whether it be the Endangered Species Act, the Clean Air Act, the Clean Water Act or anything that we might even do in cap and trade," Feinstein said.

Sotomayor told the California senator that "there are cases pending before the courts raising those arguments." She added: "I can't speak much more further than that because of the restrictions on me."

She also reiterated her intent to pay special attention and deference to congressional findings, comments that pleased legal experts in the environmental community who have been following the hearings.

Day three

During the third day of the hearings, Sotomayor addressed concerns from Democrats about joining a high court that they view as hostile to environmental protections.

"We've seen in recent decisions of the Supreme Court like the Solid Waste Agency of Northern Cook County v. U.S. Corps of Engineers and Rapanos v. United States that they have forced the EPA to drop more than 500 cases against alleged polluters. These decisions have impact," said Sen. Ben Cardin (D-Md.).

Cardin went on to accuse current members of the court of rejecting "long-standing legal interpretations in the federal Clean Water Act." The Maryland senator said the issue was particularly important to him "as it relates to the efforts that we're making on the Chesapeake Bay."

Cardin then asked Sotomayor to discuss whether she intends to "follow the intent of Congress and will not try to supplant individual judgment that would restrict the protections that Congress has passed for our community."

The judge repeated her commitment to defer to Congress.

"To the extent that the court has a role -- because it does have a role -- to ensuring that the Constitution is followed, it attempts to do that," Sotomayor said, adding: "It always attempts it with a recognition of the deference it owes to the elected branches in terms of setting policy and making law."

In comments to reporters during a break in the hearings, Cardin said he was pleased by the nominee's answers and happy that Sotomayor does not appear to be an activist judge like Chief Justice John Roberts or Justice Samuel Alito "who will turn the clock back" on environmental policy.

Day four

On her final day of testimony before the Senate Judiciary Committee, Sotomayor again addressed her ruling in Riverkeeper.

Sen. Arlen Specter (D-Pa.), a former Republican who chaired the committee during past Supreme Court nomination hearings, brought up the Riverkeeper case, "which involved the question which is very important to matters now being considered by Congress on climate control and global warming," he said.

Noting that the Supreme Court reversed her decision, Specter asked: "Could we expect you to stand by your interpretation of the Clean Water Act when, if confirmed, you get to the Supreme Court and could make that kind of a judgment because you're not bound by precedent?"

Sotomayor reiterated her adherence to "precedent to the extent that all precedents is entitled to the respect it -- to respect under the doctrine of stare decisis."

"And to the extent that the Supreme Court has addressed this issue of cost-benefit and its permissibility under the Clean Water Act, that's the holding I would apply to any new case that came," Sotomayor said, adding: "The framework it established is the framework I would employ to new cases."

The nominee's statements on adhering to congressional intent and deferring to legislative policy judgments will set her apart from some of the sitting justices on the court, according to Patrick Parenteau, director of the Environmental and Natural Resources Law Clinic at Vermont Law School.

Justices Alito, Scalia and Clarence Thomas "show very little deference to the purposes and policies of environmental statutes and take more of an abstract, semantical approach," Parenteau said. "I cannot imagine Sotomayor, with all of her real world and nitty-gritty trial experience, going along with an approach to statutory construction that so utterly disregards the policy goals adopted by Congress."

The next step

Judiciary Chairman Patrick Leahy (D-Vt.) scheduled a committee vote on the nomination for Tuesday at 10 a.m.; however, GOP members suggested they will ask that the vote be delayed a week until July 28.

Nonetheless, Alabama Sen. Jeff Sessions, the top Republican on the committee, told the nominee yesterday that his party would not try to filibuster her nomination.

"We all need to take our time and think it through and cast it honestly," he said. "But I look forward to you getting that vote before we recess in August."