Another perspective on Judge Sotomayor. I am also delighted to see that 
there is a group of African-American environmentalists. 
 
Wally Taylor
 
 
 
 
_African American Environmentalist Association _ 
(http://aaenvironment.blogspot.com/) 
Dedicated to protecting the environment, enhancing human, animal and plant 
ecologies, promoting the efficient use of natural resources and increasing 
African American participation in the environmental movement.
 
 
Tuesday, May 26, 2009
 
Judge Sonia Sotomayor on the Environment & Energy 
 

 
(http://2.bp.blogspot.com/_1p20WdeXKKs/ShvvF4Kl3YI/AAAAAAAAFSc/_iiLbw_uyao/s1600-h/SoniaSotomayor.jpg) Judge Sonia Sotomayor, left, wrote an opinion 
in Riverkeeper v. EPA, 475 F.3d 83 (2d Cir. 2007), that the EPA was not 
permitted to engage in a cost-benefit analysis to determine “best technology 
available”; instead, it could consider cost only to determine “what technology 
can be ‘reasonably borne’ by the industry” and whether the proposed 
technology was “cost-effective” - which, she concluded, requires the EPA in turn 
to determine whether the technology at issue is “a less expensive technology 
that achieves essentially the same results” as the best technology that the 
industry could reasonably bear.

The case was a challenge to an EPA rule regulating cooling-water intake 
structures at power plants. To minimize the adverse impact on aquatic life 
(which could otherwise be trapped against the intake structure or, if small 
enough, sucked into the pipes themselves), the Clean Water Act requires the 
intake structures to use the “best technology available,” without specifying 
what factors the EPA should consider in determining what constitutes the “best 
technology available.”

Judge Sotomayor explained:


“assuming the EPA has determined that power plants governed by the Phase II 
Rule can reasonably bear the price of technology that saves between 100-105 
fish, the EPA, given a choice between a technology that costs $100 to save 
99-101 fish and one that costs $150 to save 100-103 fish. . . could 
appropriately choose the cheaper technology on cost-effectiveness grounds.”






On this issue, Sotomayor remanded to the EPA, finding it “unclear” how the 
EPA had arrived at its conclusions and, in particular, whether the EPA had 
improperly weighed costs and benefits.

Sotomayor also held that the EPA could not consider restoration measures - 
such as restocking fish to compensate for fish killed by an intake system - 
when determining the best technology available for a particular power plant. 
Sotomayor wrote that “[r]estoration measures are not part of the location, 
design, construction, or capacity of cooling water intake structures, and a 
rule permitting compliance with the statute through restoration measures 
allows facilities to avoid adopting any cooling water intake structure 
technology at all, in contravention of the Act’s clear language as well as its 
technology-forcing principle.” Finally, Sotomayor also determined that, at a 
minimum, EPA’s determination that the CWA provision at issue applies to existing 
and new facilities was a reasonable interpretation of the statute.

The industry plaintiffs filed petitions for certiorari, which the Supreme 
Court granted in April 2008 to review the cost-benefit issue. AAEA attended 
the December 2, 2008 Oral Arguments at the U.S. Supreme Court. By a vote of 
6-3, the Court reversed. In an opinion by Justice Scalia, the majority deemed 
“[i]t . . . eminently reasonable to conclude that” the CWA’s silence with 
regard to determining the best technology available “is meant to convey 
nothing more than a refusal to tie the agency’s hands as to whether cost-benefit 
analysis should be used, and if so to what degree.”
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