One perspective on Judge Sotomayor's environmental record.
 
Wally Taylor
 
 
Appeals Court Judge Sonia Sotomayor is now President Obama's official 
nominee for the Supreme Court, and her background has already been picked apart 
by liberals and conservatives alike. But what does Sotomayor's appointment 
mean in terms of the environment?
 
_The Wall Street Journal_ 
(http://blogs.wsj.com/environmentalcapital/2009/05/26/sotomayor-obamas-supreme-court-pick-and-the-cost-of-environmental-protec
tion/)  reports that Sotomayor has an important environmental ruling under 
her belt — one that was just overturned by the Supreme Court, but may 
provide some insight into her environmental views.
 
In the case of _Riverkeeper vs. EPA_ 
(http://vlex.com/vid/riverkeeper-inc-vs-epa-25936791)  in 2007, Sotomayor argued that the Environmental Protection 
Agency can't weigh costs and benefits in determining the "best technology" 
for protecting fish that are threatened by power plants because Congress has 
already decided that marginal costs of extra environmental protections are 
worth it.
 
That case was a challenge to an EPA rule regulating cooling-water intake 
structures at power plants and their impact on aquatic life. Sotomayor found 
that,

"…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 (with all 
other considerations, like energy production or efficiency, being equal), 
could appropriately choose the cheaper technology on cost-effectiveness grounds.
 
The Agency is therefore precluded from undertaking such cost-benefit 
analysis because the [best technology available] standard represents Congress’s 
conclusion that the costs imposed on industry in adopting the best cooling 
water intake structure technology available (i.e., the best-performing 
technology that can be reasonably borne by the industry) are worth the benefits in 
reducing adverse environmental impacts."

_Patricia Millett_ (http://www.akingump.com/pmillett/) , co-leader of Akin 
Gump Strauss Hauer & Feld's Supreme Court and appellate practice, believes 
that Sotomayor's decision in Riverkeeper vs. EPA does not necessarily 
indicate a hard-line stance on the environment.
 
"She was taking the statute at its word, so I don't think you can really 
read much into it," _Millett says_ 
(http://www.businessweek.com/bwdaily/dnflash/content/may2009/db20090526_819200.htm?chan=top+news_top+news+index+-+temp_t
op+story) .

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