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Environmental Record of Supreme Court Nominee Sotomayor - Initial Impressions
May 28, 2009
On May 26, President Barack Obama presented Judge Sonia Sotomayor as his nomination for the United States Supreme Court upon Justice Souter's retirement. Judge Sotomayor has served on the United States Court of Appeals for the Second Circuit since 1988. During her tenure she has heard few environmental cases. Perhaps her most well-known environmental ruling came in Riverkeeper, Inc. v. EPA, 475 F.3d 83 (2d Cir. 2007), in which she remanded an EPA rule governing cooling water intake technology. Details on Riverkeeper and other environmental decisions involving Judge Sotomayor are provided below.
In general, Judge Sotomayor's record in environmental cases leaves open the question of how much deference she believes is owed to an agency as it interprets statutory language or engages in rulemaking. For example, in Environmental Defense v. EPA, Judge Sotomayor joined an opinion that rejected a literal interpretation of the Clean Air Act and supported EPA's judgment with respect to the one-hour ozone attainment requirements in New York. Yet in Riverkeeper, Judge Sotomayor seemed to favor a narrow interpretation of the Clean Water Act and found EPA's record insufficient to support its interpretation that the statute permitted cost-benefit analysis in setting certain new technology standards. In reversing the Riverkeeper decision, the Supreme Court (6-3) read the Clean Water Act more flexibly than Judge Sotomayor. The three dissenting judges included Justice Souter, whom Sotomayor is slated to replace.
Riverkeeper v. EPA, 475 F.3d 83 (2d Cir. 2007), rev'd and rem'd, Entergy Corp. v. Riverkeeper, 129 S. Ct. 1498 (2009), involved challenges to EPA's rule requiring power plants to prevent fish and other aquatic life from being pulled into existing cooling water intake structures. Judge Sotomayor, writing for the court, found that the Clean Water Act did not permit EPA to use a cost-benefit analysis in determining the best technology available (BTA). Because it was unclear whether EPA used cost-benefit analyses in its BTA determination, the court remanded provisions of the rule establishing BTA standards as well as provisions that relied on BTA determinations. Judge Sotomayor directed EPA either to provide a reasoned explanation of its decisions establishing BTA standards or to establish new BTA standards based on permissible considerations under the Clean Water Act. The court's ruling indicated a willingness to question and possibly overturn the agency's rulemaking decision, notwithstanding the deference customarily afforded an expert agency interpreting a technical statute.
In 2008 the Supreme Court reviewed the decision and reversed it. In an opinion by Justice Scalia, the Supreme Court held that Congress's silence on whether EPA could use a cost-benefit analysis signaled Congress's "refusal to tie the agency's hands as to whether cost-benefit analysis should be used, and if so to what degree."
In Environmental Defense v. EPA, 369 F.3d 193 (2d Cir. 2004), Judge Sotomayor was part of a three-judge panel hearing a challenge to EPA's approval of New York's implementation plan for achieving one-hour ozone attainment in the New York City air quality control region. The court found that the grid modeling analysis used to predict ozone concentrations performed by New York, taken with EPA-supplemented analysis, was consistent with the Clean Air Act and that EPA's interpretation of the modeling is a "matter for the expert judgment of EPA." In resolving the tension between the CAA's three-year attainment test requirement and the 2007 deadline, the court held that the extension provision "ensures that although a state might achieve compliance by 2005, EPA may still deem it in compliance if it attains the standard by 2007." Unlike Riverkeeper three years later, the Environmental Defense decision accepted the agency's legal interpretation, consistent with substantial deference to an expert agency.
In Schaefer v. Town of Victor, 457 F.3d 188 (2d Cir. 2006), Judge Sotomayor was part of a three-judge panel that elaborated on a prior Superfund contribution ruling under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court found that a potentially responsible party that voluntarily cleans up hazardous substances can sue for contribution under Section 107(a) of CERCLA even if the majority of the cleanup is completed under a consent decree, as long as the party conducted at least some of the cleanup activities prior to entering into the decree. The court also found that the statute of limitations starts running with the undertaking of "actions consistent with permanent remedy."
New York v. National Service Industries, 460 F.3d 201 (2d Cir. 2006), involved a decision on whether federal common law incorporates or displaces state law for purposes of determining corporate successor liability under CERCLA. Writing for the majority, Judge Sotomayor found that the question need not be answered because in this instance New York follows the traditional common-law principles for determining corporate successor liability.
In NRDC v. Abraham, 355 F.3d 179 (2d Cir. 2004) a two-judge panel including Judge Sotomayor reviewed the Bush administration's decision to scale back the Clinton administration's energy-efficiency standards for new air conditioners. The court in a unanimous opinion found that the Department of Energy did not have the authority to roll back the new rules once they had been published as final in the Federal Register. This decision may receive particular attention in light of the current administration's intensive review of Bush-era regulations and proposals.
In Wills v. Amerada Hess Corp., 379 F.3d 32 (2d Cir. 2004), Judge Sotomayor wrote for the court and found that a spouse's failure to establish causation precluded her claim that the exposure to hazardous chemicals on board defendant's vessels caused her husband's death from cancer.
In a Summary Order issued by a panel including Judge Sotomayor, Allens Creek v. West, 2 Fed. Appx. 162 (2d Cir. 2001), the court upheld a ruling that laches barred plaintiffs from bringing a Clean Water Act claim when plaintiffs did not bring the lawsuit until eight months after the commencement of the project and the defendant would suffer severe prejudice because by that time the project was virtually complete.
In Burnette v. Carothers, 192 F.3d 52 (2d Cir. 1999), a three-judge panel including Judge Sotomayor held that the citizen suit provisions in the Clean Water Act, the Resource Conservation and Recovery Act, and CERCLA do not abrogate a state's sovereign immunity established by the 11th Amendment.
In Maska U.S. Inc. v. Kansa General Insurance Co., 198 F.3d 74 (2d Cir. 1999), Judge Sotomayor wrote for the court in holding that insurance policies with pollution-exclusion clauses are enforceable in Vermont even though state insurance regulators have consistently refused to approve policies containing the exclusions. This was so, Judge Sotomayor found, because Vermont had never adopted a formal policy barring the approval of insurance forms with pollution exclusions.
In Connecticut v. American Electric Power Co., various states and other plaintiffs are seeking common law damages for the release of greenhouse gases. The Second Circuit heard oral argument in the case on June 7, 2006, but has not yet rendered a decision. The case is being closely watched as an indicator of the judiciary's possible future role in the climate-change debate.