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Environmental law.

Judge Sotomayor's name is attached to only a small number of environmental decisions, of which she actually wrote in two. The most important of these, partly because it was recently reviewed by the Supreme Court, is Riverkeeper, Inc. v. US EPA. (282) Riverkeeper addressed an environmental problem caused by the voracious appetite of large power plants for water to cool their facilities. The daily withdrawal from the nation's waterways by such facilities amounts to billions of gallons, destroying in the process a huge number of aquatic organisms. Responding to the problem, Congress, in Clean Water Act (CWA) section 316(b), required that cooling water intake structures reflect the "best technology available" (BTA) for minimizing adverse environmental impact. (283) EPA issued the challenged rule implementing section 316(b)--governing BTA at large, existing power plants ("Phase II" Rule)--in 2004.

The most significant argument against EPA's Phase II Rule addressed by Riverkeeper was that EPA had impermissibly construed section 316(b) to allow determination of BTA based on cost-benefit analysis. Judge Sotomayor, writing for the unanimous Second Circuit panel, agreed. First, she noted that CWA sections cross-referenced in section 316(b) demonstrate that after 1989, cost is a lesser, more ancillary consideration in determining what technology EPA must require under those sections. This shift, she wrote, signaled Congress' intent in the CWA to move away from cost-benefit analysis. Second, Judge Sotomayor stated that the language of section 316(b) "plainly indicates that facilities must adopt the best technology available" (emphasis by the court), so that cost-benefit analysis cannot be justified. (284)

Judge Sotomayor did not altogether preclude considerations of cost in setting BTA. Rather, she said (drawing on an earlier Second Circuit decision on BTA rules for new power plants), costs may be considered to a limited extent, in two ways--to determine what technology can be reasonably borne by the industry, and to evaluate cost-effectiveness. That is, EPA must first determine the most effective technology that may reasonably be borne by the industry in question, then, using that technology as a benchmark, EPA may consider other factors, including cost-effectiveness, to choose a less expensive technology that achieves the same result. Because the administrative record for the rulemaking was unclear as to the basis for the technologies selected by EPA as BTA, and thus may have included the impermissible basis of cost-benefit analysis, the court remanded the Phase II Rule to EPA for clarification and possible reassessment of BTA.

Of the 13 arguments advanced by the parties before the Second Circuit, Supreme Court review was sought on only one--the above cost-benefit issue. On this issue, Judge Sotomayor was reversed 6-3. (285) Writing for the majority, Justice Scalia found that EPA had permissibly relied on cost-benefit analysis in setting BTA and in providing for cost-benefit variances from that standard as part of the Phase II regulations. He deemed it "eminently reasonable to conclude that [section] 1326(b)'s silence is meant to convey nothing more than a refusal to tie the agency's hands as to whether cost-benefit analysis should be used ...." (286) The significance of this decision stems from the ubiquity of the debate over the role of cost-benefit analysis in environmental statutes. Industry favors such analysis; environmentalists, arguing that environmental factors are often undervalued in cost-benefit analyses, oppose its use. The analysis adopted by the Entergy majority may dispose courts to find federal agency authority to use cost-benefit analysis whenever the statute is not explicit one way or the other.

An important climate change case argued before a Second Circuit panel presided over by Judge Sotomayor may also figure in the nomination process. The reason: oral argument occurred three years ago (June 7, 2006), but a decision has yet to be rendered. On the other hand, the Second Circuit is reportedly slow compared to other circuits in rendering opinions, reportedly ranking 11th out of the 13 circuits. The lead clerk of the circuit has been quoted recently as saying that the Second Circuit has seen a "crushing number of immigration filings" over the last decade. (287)

The case involves an attempt to use the common law to reduce the [CO.sub.2] emissions that contribute to climate change. In 2004, eight states (CA, CT, IA, NJ, NY, RI, VT, WI), New York City, and environmental groups sued five electric utility companies chosen as allegedly the five largest [CO.sub.2] emitters in the United States. Invoking the federal and state common law of public nuisance, plaintiffs sought an injunction requiring defendants to abate their [CO.sub.2] contribution to the nuisance of climate change. A similar suit filed the same day in the same court added a private nuisance claim. In 2005, the district court dismissed the cases on political question grounds, (288) and the case was argued to the Second Circuit in 2006, as mentioned.

This case involves the conscripting of an ancient common law theory to deal with a modern, complex, and global problem and poses tough questions for the court as to causation and remedy. The Southern District of New York and two other district courts have chosen to avoid the merits of common law claims based on greenhouse gas emissions by calling the matter a political question, unsuitable for resolution by the courts. (289) Nonetheless, the current prominence of the climate change issue in Congress may direct that body's attention to this case.
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Title Annotation:Judge Sonia Sotomayor: Analysis of Selected Opinions
Publication:Congressional Research Service (CRS) Reports and Issue Briefs
Geographic Code:1USA
Date:Jun 1, 2009
Previous Article:Labor law/antitrust.
Next Article:Securities law.

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