Judging Appointee's Green Record
| Author | Richard Lazarus |
| Position | Law faculty of Georgetown University |
| Pages | 12-12 |
Page 12 ❧ THE ENVIRONMENTAL FORUM Copyright © 2009, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, July/August 2009
By Richard Lazarus
Judging Appointee’s
Green Record
Everyone these days is curious
about the significance of Judge
Sonia Sotomayor’s replacing Su-
preme Court Justice David Souter.
Environmental lawyers are no excep-
tion. e tea leaves, however, are few
and hard to read. Prior to joining the
bench, Judge Sotomayor worked first as
a city prosecutor and then as a law firm
litigation partner. In neither job was en-
vironmental law even remotely part of
her practice. And, her published rulings
as a federal trial judge were similarly far
afield. Judge Sotomayor is credited for
having “saved baseball,” but not for sav-
ing either the environment or business
from environmental regulation.
e environmental case garnering
immediate attention is her opinion for
the Second Circuit in Entergy v. River-
keeper, the Clean Water Act case recently
reversed by the Supreme Court. (is is
also the case in which I represented the
environmental respondents before the
High Court). Based on her opinion,
environmentalists are likely cheered by
her nomination and some in industry
a bit concerned. After all, her Second
Circuit opinion rejected virtually every
industry challenge to EPA’s Clean Wa-
ter Act Section 316(b) regulations and
embraced most of those advanced by
environmental and state respondents.
What Sotomayor’s Entergy opinion
reveals, however, is what her rulings ev-
idence generally: rigorous attention to
precedent and to the factual record. She
displays no clear tendency to rule for
or against certain kinds of plaintiffs or
defendants. ere are no sweeping pro-
nouncements or rhetorical flourishes in
her opinions. In Entergy, much of her
reasoning was based on dictum found
in Supreme Court precedent interpret-
ing related parts of the Clean Water
Act. It is not surprising that an appellate
judge would place significant weight on
such dictum, or that the justices would
feel free not to do so.
Whatever one’s view of the relative
persuasiveness of the Second Circuit
and Supreme Court Entergy rulings,
what should be clear is the mere fact
that the Supreme Court reversed says
nothing about Judge Sotomayor’s qual-
ifications to serve on the Court. at is,
after all, what the Supreme Court does
these days: the Court reverses approxi-
mately 74 percent of the time. And, So-
tomayor’s reversal rate is neither espe-
cially high nor is it based on the Court’s
having granted review
in a large number of
her cases.
Entergy also ef-
fectively underscores
the meaninglessness
of reversal rates as a
measure of judicial
prowess. Judge Sotomayor’s 80-page
opinion addressed as many as 15 dif-
ferent legal issues. e Supreme Court
granted only one issue, leaving intact
the vast majority of her panel’s rulings.
And, although the Court reversed on
that one ground, its opinion did little to
discredit her legal reasoning or analysis.
e six-justice majority agreed that her
opinion’s reading of the Clean Water
Act was reasonable, and held only that
there was sufficient statutory ambiguity
to allow EPA to embrace an alternative,
also reasonable interpretation.
ere are, however, two environ-
mental cases that have not yet received
significant attention but are likely to
do so during the confirmation process.
e first is the per curiam 2006 opin-
ion Judge Sotomayor joined in Didden
v. City of Port Chester, which upheld a
municipality’s exercise of eminent do-
main authority in support of a redevel-
opment project. e harsh facts alleged
in the Didden complaint implicate
the personal liberty and private prop-
erty concerns that generated a political
firestorm in response to the Supreme
Court’s ruling in Kelo v. City of New
London, including retaliatory efforts to
condemn Justice Souter’s home because
he joined the Kelo majority. Property
rights advocates are a potent political
force and can be expected to be very
disturbed by Didden’s cursory dismissal
of the property owner’s complaint.
e second environmental case is
one that is remarkable not because of
the Second Circuit’s opinion, but be-
cause of its absence. In June 2006, the
Second Circuit, with Judge Sotomayor
presiding, heard oral argument in Con-
necticut v. American Electric Power, an
ambitious global warming nuisance
claim brought by environmentalists
and several states against power plants
based on their greenhouse gas emis-
sions, which the dis-
trict court dismissed
on “political question”
grounds. Judge Soto-
mayor was extremely
active at argument,
asking more than 70
questions, almost four
times the number asked by the two
other judges combined.
ree years later, the appellate court
has still not ruled. Some delay is under-
standable. e court sought supplemen-
tal briefing after the Supreme Court’s
decision in Massachusetts v. EPA. But
that was more than two years ago. And,
while any one of the three judges on the
panel that heard the appeal could be
the cause of the delay, the extraordinary
length of delay in such a high profile
case is likely to prompt questions dur-
ing the confirmation process.
Justice White declared that chang-
ing just one justice changes the Cour t.
e speculation on how a Justice Soto-
mayor would change the Court and en-
vironmental law has only just begun.
Richard Lazarus is on the la w faculty of
Georgetown University. He can be reached at
lazarusr@law.georgetown.edu.
I C
e speculation on how
Justice Sotomayor might
change the High Court
has only begun
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