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June 03, 2009

Sonia Sotomayor: Kind of green

Judge Sonia Sotomayor seems moderate on the environment. Yes, that's a squishy term. But in the context of environmental law cases she's ruled upon since 2000, it includes the following meanings: she accepts cost effectiveness as a tool in environmental regulation but she does not worship cost-benefit analysis. She's willing to grant standing to environmental plaintiffs but she doesn't reach aggressively for jurisdiction. Corporations sometimes win and sometimes lose. She can write clearly and directly about the importance of environmental protection, but she refrains from surging into poetry.

Justice Stephen Breyer, meet your newest Supreme Court ally!

Using the invaluable FindLaw opinion summary archive, Suits & Sentences searched for environmental law-related decisions involving Sotomayor. This admittedly limited technique identified half-a-dozen or so relevant environmental cases in which she has taken part since September 2000. It's not a lot, but it says something about her judging.

The most prominent is Riverkeeper v Environmental Protection Agency, a January 2007 decision authored by Sotomayor on behalf of a three-member appellate panel. This was a big, big case, drawing in parties ranging from California to Rhode Island. Sotomayor, writing with the kind of clarity Suits & Sentences admires, starts off with:

"This is a case about fish and other aquatic organisms."

More specifically, Sotomayor wrote, "power plants and other  industrial operations withdraw billions of gallons of water from the nation’s waterways each day to cool their facilities. The flow of water into these plants traps (or “impinges”) large aquatic organisms against grills or screens."

Sotomayor's opinion challenged the EPA's power plant rules that environmentalists deemed inadequate. In deciding what technology should be used, Sotomayor concluded, cost-effectiveness can be considered but strict cost-benefit balancing cannot drive the decision. 

On April Fool's Day, in an opinion written by, wait for it, Justice Antonin Scalia, the Supreme Court overturned Sotomayor's opinion. Justice David Souter, who Sotomayor is slated to replace, was among three dissenters.

Jurisdiction, or standing, often means everything in an environmental case: can the court even hear it? In an August 2002 ruling in the case Aguinda v. Texaco, Sotomayor joined two other 2nd Circuit Court of Appeals judges in tossing out a lawsuit filed by citizens of Peru and Ecuador. Maria Aguinda and the other plaintiffs claimed Texaco had polluted rain forests and rivers in their countries.

Big case, high stakes: Let's toss it to someone else! Sotomayor joined her colleagues in concluding the matter was really best handled by South American courts, which are closer to the problem and the plaintiffs. Out of sight and out of mind for Texaco; a win for the company.

In a rather similar vein, Sotomayor was part of a 2nd Circuit panel that dismissed claims in the anthrax contamination case APWU v. Potter. In the 2003 decision, Sotomayor agreed that the U.S. Postal Service's anthrax cleanup at the so-called Morgan mail distribution facility in Manhattan was not subject to legal challenge.

And in the 2004 case, Environmental Defense v. EPA, Sotomayor joined a 2nd Circuit panel in upholding the Bush administration's approval of New York's plan for meeting air quality standards. The panel's decision, not authored by Sotomayor, deferred to the environmental agency's interpretation of relevant issues: this is no activist decision!

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mike

"Suits & Sentences" is a legal affairs blog written by Michael Doyle, a reporter for McClatchy's Washington Bureau. He was a Knight Journalism Fellow at Yale Law School, where he earned a Master of Studies in Law; he also earned a Masters in Government from The Johns Hopkins University with a thesis on the Freedom of Information Act. He teaches journalism as an adjunct instructor at The George Washington University's School of Media and Public Affairs.

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