Are We Wishfully Seeing Green in Supreme Court Nominee Sotomayor?
Immediately after word came out that Sonia Sotomayor was the President's pick for the Supreme Court, the environmental community (this author included) immediately went searching for the green angle. We found it in one decision: Riverkeeper v. EPA, which was seized upon as proof of Judge Sotomayor having a modicum of green cred. However, in a new Huffington Post piece Richard Revesz (dean of the NYU School of Law) and Michael Livermore (executive director of NYU's Institute for Policy Integrity) think the green community might be reading too much into things.
In the Riverkeeper opinion, Sotomayor found that the Clean Water Act prohibited the EPA from conducting a cost benefit analysis when determining whether to impose regulations at power plants which would protect fish, but possible have high costs for utilities. But that doesn't necessarily mean she's actually pro-environment. Many times doing an accurate cost benefit analysis comes down in favor of the environmental protection. More telling about Sotomayor is this:
A Judge's Job is To Apply the Law As It Stands
Perhaps most importantly, the people who are trying to discern Sotomayor's opinions about cost-benefit analysis from Riverkeeper are looking in the wrong place. The role of a judge is to apply the law as it stands. Sometimes, Congress has explicitly forbid cost considerations when setting environmental standards. In fact, one of us wrote an amicus brief to the Supreme Court for a group of environmental organizations several years ago, arguing that certain provisions of the Clean Air Act prohibited cost considerations. The Supreme Court agreed, finding in Whitman v. American Trucking that costs could not be considered when setting national air quality standards under the Clean Air Act. Justice Scalia authored the opinion.
Justice Scalia also authored the opinion in Entergy v. EPA, the case that reversed Judge Sotomayor's opinion on the Clean Water Act. In many ways, Judge Sotomayor's opinion hewed more closely to American Trucking than Justice Scalia's opinion interpreting his own decision. But, that is the nature of our legal order: the Supreme Court enjoys broad latitude to subtly refine its decisions or even to overrule itself; the job of the court of appeals is to interpret Supreme Court precedent, not change it. So while we cannot glean from this case where Judge Sotomayor lies on the industry-environmentalist spectrum, we can tell from the decision that she is careful judge, thoughtfully applying the law to the case at hand.
via: Huffington Post
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