Supreme Court nominee Judge Sonia Sotomayor, despite serving seventeen years as a district and appellate court judge, appears to have been involved with only a few significant energy and environmental matters. Though few, they are interesting fodder for speculation. Commentary so far has centered on two environmental cases, one Clean Water Act opinion later overturned by the U.S. Supreme Court and the other a greenhouse gas case argued three years ago, but as-yet undecided. Our research found one more relevant case, this involving energy efficiency rules. The limited record seems to show a judge sympathetic to environmental regulation and skeptical of agency moves to dilute Congressional policies supporting environmental protection.
Judge Sotomayor’s nomination received an immediate endorsement from the Sierra Club based on Judge Sotomayor's opinion in Riverkeeper, Inc. vs. EPA that sided with environmentalist plaintiffs' challenge to EPA's plans to use cost-benefit analysis in the regulation of power plant cooling water intake systems under the Clean Water Act. The U.S. Supreme Court later overturned the appellate court in a 6-3 decision authored by Justice Scalia. Judge Sotomayor was also on the appellate panel that in June 2006 heard Connecticut v. American Electric Power Company Inc., a case in which eight state attorneys general sued major electric utilities alleging that greenhouse gas emissions amounted to a public nuisance. No opinion has yet been issued in that case. A New York Times article reporting on support by environmentalists for Judge Sotomayor’s nomination noted that, as the only Democratic nominee on the three-judge American Electric Power panel, Judge Sotomayor actively participated in questioning both sides and expressed concern about the potential impacts of climate change. Judge Sotomayor stated that, if the science behind global warming is correct, “we have relegated ourselves to killing the world in the foreseeable future. Not in centuries to come but in the very near future.”
Interestingly, the utility defendants in the American Electric Power case were supported by, among others, former Supreme Court nominee Robert Bork and then-Chairman of the Senate Environment and Public Works Committee, James Inhofe (R-Okla.). Senator Inhofe's statement regarding Judge Sotomayor's nomination made no reference to the case, but promised to examine her record closely for "legislating from the bench." With no opinion released in that case, and the U.S. Supreme Court already on record agreeing that EPA has authority to regulate greenhouse gases, it seems unlikely Judge Sotomayor’s statements from the bench will seize much attention during the confirmation process.
Our own review of her record found one other case, Natural Resources Defense Council v. Abraham, where Judge Sotomayor appeared to agree with environmental groups challenging a move by President Bush’s Energy Department to ease Clinton-era energy efficiency standards. The record of the case shows she had some tough questions for the Justice Department attorneys representing the DOE during oral argument, and was not swayed by the responses. The court ultimately invalidated the revised standards, concluding that DOE lacked discretion to lower the standards, once promulgated.
Readers seeking more information about Judge Sotomayor will find this newly assembled Library of Congress site of considerable interest.