Sotomayor and the Earth

Environmental law is hugely complex, and a single case can shine light on only a tiny part of this immense body of law.

But a single case seems to be the focus when it comes to Judge Sonia Sotomayor: Riverkeeper v. EPA.  Everyone is reading this case for a glimpse of her approach to our major environmental rules.

What should you know about it?  Well, it’s not a simple case, and it takes some parsing.  But the upshot is this: in the Clean Water Act, Congress required that power plants use the “best technology available” to protect wildlife in rivers when they siphon off water to cool off their boilers.  The EPA (under the Bush Administration) read that language loosely, and let power plants make cost-benefit arguments against technology upgrades.  Judge Sotomayor said no to that — according to her interpretation, Congress wanted the law to force technology development, and cost-benefit analyses went against that intent.

It’s not an ideological ruling.  It’s pretty legalistic.  But it’s in one of those gray areas (“what counts as a reasonable interpretation of Congress’s language?”) that you can answer in lots of ways.

More nitty-gritty analysis of the case after the jump!

At issue is the EPA’s decision to apply a cost-benefit analysis to measures that would protect fish.  Power plants along rivers pull in huge gobs of water, which use to cool down a big container of steam so the steam condenses back into liquid water.  The internal water gets boiled again by the coal or gas, and the river-water gets pumped back out to the river.

But the river water comes out hot.  Fish in that water come out cooked. It adds up to billions of fish, shellfish, and other critters per year, and that’s just for a single plant.

The law on this issue is the Clean Water Act, which got amended by Congress in 1972 with a requirement that power facilities use the “best technology available” to reduce that kill rate. That technology could address anything — the “location, design, construction or capacity” of water intake systems.  All those elements were on the table.

But wait – what does “best technology available” mean?  The best feasible technology?  The best affordable technology?  Or just plain the best, no matter how impractical or expensive?

The answer is somewhere in between the extremes, according to Obama’s nominee.  But on what basis?  Is this just hand-waving?  Is there any legal rigor to this, or did we just pin the tail somewhere in the middle of the donkey?

It turns out she didn’t just split down the middle out of a vague sense of compromise.  She looked around the Clean Water Act, and noticed that in other sections, Congress set looser standards.  In some places, they mandated the use of the “best available technology economically achievable,” and in others,” the “best practicable control technology currently available.”  Notice the wiggle words — a power plant could avoid having to use the “best” technology if that option turned out to be too expensive or too difficult to apply, or just not available on the market.

But Congress left no such wiggle room for companies in the fish-protection section — it said you gotta use the “best technology available.”  Period.  Now, you might say that was sloppy writing, and you could argue that Congress meant to limit it to economically or practically feasible options, but regardless, Congress didn’t do that.  Whether by accident or on purpose, Congress created a separate, tougher standard for companies to meet when protecting wildlife from cooling systems.

So the EPA had to decide what the standard actually meant (that’s its job – agencies write the real rules that connect legislative language to the real world).  It kinda dodged the issue, and didn’t pick a technology.  Instead, it set a standard for damage reduction and let companies use whatever method they wanted as long as they met that standard.  Environmentalists didn’t like that because it allows for a lot of cheating.  For example, killing a billion fish and then re-stocking the river with a half-billion you got from somewhere else (maybe even up-river from the same water source) is technically a response to the damage, but it doesn’t reduce the impact.  After all, you still killed a billion fish.

Restocking got shot down by Sotomayor in Riverkeepers I. Why?  Because remember that the technology had to deal with the “location, design, construction or capacity” of cooling systems.  Restocking doesn’t have to do with those categories, so the EPA was outside the law by approving it.

But that case only looked at the rule that applies to brand-new power plants.  In Riverkeepers II — More Legal Mumbo Jumbo, Judge Sotomayor looked at the EPA’s sister rule, which applied to retrofit requirements for existing power plants.  The EPA rule here was long and wordy, but in the end it came down to this: a plant could do any of a number of things that would show that it met a set of national performance standards.  Again, no specific technology, and again, restocking wildlife was an option, if the company could show it was more cost-effective than mitigating the damage.

Also, the regs created escape clauses — if a company could show that its costs of compliance would be higher than the EPA expected, the EPA would accept a lower standard.  If a company could show a cost-benefit gap, the EPA would again accept a lower standard.

Again, environmentalists lawyered up.  “It says ‘Best Technology Available!'”  they cried.  There’s no “except if it’s expensive” language, they protested. They argued that the EPA should have picked a specific technology, called closed-cycle cooling (it runs water around and around the system, instead of just once and then right back to the river).

The question now is a) did the EPA reasonably interpret an ambiguous piece of legislation, and 2) did the EPA follow the procedures required in doing so?

Judge Sotomayor said the EPA broke the rules.  She said that the law is meant to force technological changes, and that Congress made the cost-benefit decision already by legislating the technology without referring to cost.  Therefore the EPA was contradicting Congress by reconsidering the cost-benefit relationship.

So is the judge a green crusader?  Like a lot of others, I’d say that if she is, this case doesn’t show it.  This is a pretty procedural case, and applies a pretty tight approach to statutory interpretation.  It’s certainly no Miranda v. Arizona, where the Supreme Court boldly outlined the implications of the Fifth Amendment and created the miranda-rights warnings.  Sotomayor didn’t do anything sweeping here.


One Response to Sotomayor and the Earth

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