The “meltdown” that Sen. Lindsey Graham (R-SC) mentioned as the only possibility to derail Judge Sonia Sotomayor’s nomination to the Supreme Court never materialized during last week’s hearing, and with approval a near certainty, a lot of observers are taking a closer look at what Justice Sotomayor might mean to the Court’s environmental jurisprudence.
Jennifer Koons published a wrap-up of the environmental scuttlebutt from the hearings on Friday at Greenwire. The piece touches on the key cases and questions surrounding them. The key lies in unpacking a comment made by Sen. Arlen Specter (D-PA) when he asked how Sotomayor felt about the Court’s 6-3 reversal of her decision in Riverkeeper v. EPA.
Writing for the 2nd Circuit in Riverkeeper, Sotomayor found for an environmental advocacy group challenging a Bush-era EPA ruling. The EPA exempted Entergy from undertaking a full-dress cost-benefit analysis to evaluate whether the measures they are using to mitigate pollution are the “best” methods available, as required by the Clean Water Act.
On Riverkeeper, Specter said the case “involved the question which is very important to matters now being considered by Congress on climate control and global warming.” It is hard to say exactly what Specter meant by “the question” as it relates to global warming and is embodied in Riverkeeper. Is he just talking about agency deference? Or, cost-benefit analysis specifically? Or, about the provisions of the Clean Water Act as they apply to power companies, and how far the power of existing laws like CWA can be stretched to help in the climate change fight?
The last is the best, because it implies that Specter sees not only the emergence of whatever regimes the the House and Senate can agree upon in conference once the Senate spits out their Waxman-Markey corollary in the fall, but also efforts to assert broader powers under existing law. What would it mean if the EPA decided to broadly interpret the powers that existing law provides as additional levers in putting fossil fueled power plants out of business? The EPA’s announcement – early in the Obama administration – that it had command-and-control authority to regulate carbon under the Clean Air Act is the first sign of that trend. Indeed, the administration strategically announced that ruling to allow the potential power to serve as a sword of Damocles over industries that would much rather take a chance with working a bill through Congress to regulate carbon – and “work it” they did.
Further muddying the water, if feds decide to use existing power in that way, what would her position be, how would it jibe with her decision in Riverkeeper, and would it match whatever Souter’s position might have been? The opinion she wrote in Riverkeeper was anti-agency/anti-deference and pro-environment. But, under the new administration, pro-environment probably equals pro-agency and pro-deference more often than not. Then again, it could be argued that her position in Riverkeeper was not so much anti-agency as it was a pro-environment reading of the statute itself. She could retreat into that same reading to justify what might appear to be a reversal on agency deference.
Richard L. Revesz (dean of New York University School of Law) and Michael A. Livermore (executive director of the Institute for Policy Integrity at New York University School of Law) wrote jointly on the Huffington Post last week that Riverkeeper is at risk of being misread because the specific question of cost consideration is one of statutory interpretation and less a pure “green” decision. They go on to commend Sotomayor (and chide Scalia, who wrote the majority opinion reversing her) for following closely the precedent set by Whitman Trucking in which the Court (led by Scalia) found that cost could not be considered.
The problem I see with their argument is that while they argue that the cost-benefit analysis question is a strict interpretation question based on statutory language, they then trumpet her adherence to Whitman Trucking and ignore the fact that it was a Clean Air Act case. In other words, it interpreted a different statute.
Analysis of individual cases is fun, but in the end, her position only matters to the extent that it is different from what Souter’s might have been. Otherwise it is just the same vote, coming from a “wise Latina” instead of an old white man (I couldn’t resist). And, it doesn’t seem that she will swing the Court in a new direction there. Souter was a dissenter in Riverkeeper, which is to say he would have affirmed Sotomayor’s decision.
Koons’ piece also recounted the several mentions of Kelo v. City of New London – a now famous use of eminent domain to allow for development of a mixed-use waterfront development to abut a proposed Pfizer plant in New London, Conn. Koons doesn’t discuss why the Senators are concerned about Kelo from an environmental perspective, though she does mention that Sotomayor was in the majority in Didden v. Village of Port Chester (a Sotomayor decision – and progeny of Kelo – that
Ilya Somin in the Detroit FREEP thinks is even worse for private property rights).
Still, what’s bad for private property may just turn out to be good for the environment. There are several proposals out there now to use eminent domain power where necessary to take land for use in developing renewable power installations and build-out the transmission network needed to support them. In those cases, Kelo (and Didden’s) expansive interpretation of “pubic use,” which Kelo expanded for use in local economic development, could very easily be adapted to the battle against global climate change.
Then again, a lot of times, the opposition that these facilities face is from local citizens or environmental advocacy groups who seize upon the projects’ impacts on local ecology and wildlife. So, maybe Kelo and Didden (and Sotomayor) are “bad” for the environment.
A coin-flip maybe? But, here again, Souter was in the majority on Kelo and Sotomayor is unlikely to represent a major shift.
It is tough to tell what a new appointee is going to do over their tenure on the bench, but if we are looking for places where Sotomayor may strike out on her own – at least in contrast to Souter – I’m playing a straight identity-politics guessing game: She is likely to be as friendly as Souter but more of a “voice” on race/immigration; she forms a powerful coalition with Ginsburg on women’s rights/equality; and, she is a little tougher on criminal cases than the retiring New Hampshirite (or is it New Hampshirian? New Hampshirer?)
[photo credit: flickr]