Environmental Law at the Sotomayor Confirmation Hearings

This week the U.S. Senate Judiciary Committee held four days of hearing on the nomination of Judge Sonya Sotomayor to the U.S. Supreme Court. During the hearings, several Senators raised issues of environmental law, as they did during the 2005 confirmation hearings for Chief Justice John Roberts and Justice Samuel Alito.

On Tuesday Senator Diane Feinstein tried to get Judge Sotomayor to react to the Court’s efforts since 1995 to restrict the scope of federal power under the commerce clause. This is the issue that produced the “hapless toad” controversy when Roberts was questioned at his hearing concerning his effort to persuade colleagues on the D.C. Circuit to rehear a decision upholding the constitutionality of the Endangered Species Act (ESA). Roberts explained that he had never questioned the constitutionality of the ESA but sought only to ensure that the D.C. Circuit’s rationale was consistent with that adopted by a divided panel of the Fifth Circuit when it upheld the ESA in another case.

Judge Sotomayor responded only by describing her familiarity with the existing state of the law. She identified the factors the Court considers in applying its commerce clause doctrine and noted that these may have been broadened somewhat by the Court’s Gonzales v. Raich decision upholding the power of the federal government to prohibit the growing of marijuana. Judge Feinstein responded by emphasizing the importance of Congress being able to use its commerce power to adopt environmental legislation such as the ESA, the Clean Air Act, the Clean Water Act, and a new cap-and-trade program. While Judge Sotomayor said that pending litigation raising challenges to these statutes made it impossible for her to comment directly, she said that the Court “has never disavowed the importance of deference to legislative findings with respect to legislation that it’s passing within its powers under the Constitution.”

Senator Charles Grassley from my home state of Iowa asked the most direct questions about environmental cases. He pressed Judge Sotomayor to explain why no decision has been issued in the Connecticut v. EPA climate change nuisance case which was argued before the judge in June 2006. In this case several states are seeking to require utilities with coal-fired powerplants to reduce their emissions of greenhouse gases (GHGs) because of their contribution to global warming and climate change. The case was appealed to Judge Sotomayor’s court after it was dismissed in 2005 by a district court as a nonjusticiable political question. While noting that she could not comment on cases pending before her, Judge Sotomayor did say that some of the delay was due to the 2nd Circuit panel waiting for the U.S. Supreme Court to decide Massachusetts v. EPA, a suit challenging EPA’s failure to regulate GHG emission. Yet that case was decided in April 2007 and more than two years have elapsed since the parties in the 2nd Circuit appeal filed supplemental briefs addressing its impact. If Judge Sotomayor is confirmed before that case is decided, it is likely that it will have to be reargued, causing even further delay.

On Day 3 Senator Ben Cardin of Maryland criticized the Supreme Court’s SWANCC and Rapanos decisions narrowly interpreting the scope of federal authority provided by Congress under the Clean Water Act. He noted that more than 500 prosecutions of alleged polluters had to be dropped because of these decisions and that Congress may have to amend the Act to reverse them. Judge Sotomayor responded by saying that she and the Court recognize that deference is owed to the Congress in setting policy and making law.

Senator Grassley pressed Judge Sotomayor on the importance of property rights. He criticized the Supreme Court’s Kelo decision holding that eminent domain can constitutionally be used to take private property for economic development projects run by private parties. The judge responded, “I share your view of the importance of property rights under the Constitution” and restated the holding in Kelo. When further pressed by the senator, she said that she was unable to comment in more detail. However, Judge Sotomayor then observed that “the question of what constitutes an actual taking is a very complex one, because there’s a difference between taking a home, and regulation that may or may not constitute a taking.”

Senator Grassley also noted that Judge Sotomayor’s decision in the Entergy Corp. v. Riverkeeper case was reversed by the Supreme Court earlier this year. In that case Judge Sotomayor had ruled that a provision of the Clean Water Act did not allow EPA to use cost-benefit balancing in setting technology-based effluent limits on cooling water intake structures at power plants. Judge Sotomayor responded that she had applied general principles of statutory construction in interpreting the statute.

The hearings shed virtually no light on Judge Sotomayor’s views concerning issues of environmental, or other areas of law. This has been the pattern with confirmation hearings ever since Robert Bork’s. Yet the Senators on both sides of the aisle used the process to signal the Court concerning what they liked and disliked about its current jurisprudence. While this is unlikely to have any impact on the Justices, I would be surprised if the other Justices were not listening closely. Justice White once told his former clerks at a reunion that he had turned off the Clarence Thomas hearings after the Anita Hill controversy broke because he did not want it to influence how he would treat the Justice if he were confirmed.

On Friday I had lunch with Steven Stec, the director of the Environmental Security Program at the Center for Environment and Security (CENSE) at Central European University in Budapest. Steve is a Maryland law alum who teaches environmental law and policy in the Environmental Sciences and Policy Department at Central European University. He is in the U.S. for a few months, prior to serving as a visiting scholar and lecturer in the fall at Middlebury College.