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How Green Is Sotomayor?

What can we say about Judge Sotomayor's approach to environmental matters? Here are some assessments from Richard Frank (Legal Planet) and Kate Sheppard (Grist).

cboldt (mail):
Interesting contrast in the two reports.
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Separately, based on the comment that "The Clean Water Act says that these intake structures must use the "best technology available'," I had the thought that in many cases, Congress invites judges to "make specific law," because Congress itself has not done so, or because Congress has passed a law that cannot be carried out literally. "Best technology available," indeed.
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Given that sort of statutory mumbo-jumbo from Congress, I'd let a judge substitute his or her own sense, carte blanc, and not call it "activism." I likewise would not attach any significance to the decision being upheld or reversed by a different judge, who is also invited to substitute his/her own sense.
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My interpretation of "best technology available" is a mandate to discard the cost consideration entirely, and take "best" as informing only the performance aspect. Economic feasibility or sensibility doesn't play in this creation of Congress. They ordered the "best", and if that means "Bentley" where an Escalade would do, then Bentley it is.
5.29.2009 9:43am
Oren:

Separately, based on the comment that "The Clean Water Act says that these intake structures must use the "best technology available'," I had the thought that in many cases, Congress invites judges to "make specific law," because Congress itself has not done so, or because Congress has passed a law that cannot be carried out literally. "Best technology available," indeed.

I would assume that it means that the EPA must set guidelines for best available technology and that their interpretation meets the Chevron deference test. The argument here was that the EPA's use of CBA is not statutorily permissible, even under Chevron.

I might be wrong.
5.29.2009 11:03am
Sean Hecht (mail) (www):
cboldt,
Oren is correct.
In passing legislation such as the Clean Water Act that delegates rulemaking and other implementation authority to administrative agencies, Congress is giving those agencies the authority to use what you call their "sense" (what others have called expertise and/or policymaking authority) to resolve ambiguities and to fill in details. In such situations, Congress has given agencies (not courts) the authority to make specific law, in the form of rules and guidance. Under Chevron v NRDC, courts are not supposed to substitute their judgment for the judgment of agencies where agencies have interpreted a statute's requirements in any reasonable way consistent with statutory language.
5.29.2009 11:43am
cboldt (mail):
-- Under Chevron v NRDC, courts are not supposed to substitute their judgment for the judgment of agencies where agencies have interpreted a statute's requirements in any reasonable way consistent with statutory language. --
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My point was that the word "best" can be fairly taken as not admitting discretion on the part of the rulemaker. I understand that we are discussing opposing outcomes as to whether an agency rule will stand, and the arguments that go to each. As my first post said, I wouldn't fault a judge for taking EITHER side of that. To put the case in the judge's hands, the statute says "best," and demands a single acceptable solution. If the regulation admits a technical solution that is not best, then the regulation is directly opposite the statutory mandate, and can be rejected by the court, in perfect conformity with the Chevron test.
5.29.2009 11:58am
Spitzer:
Answer: As green as Obama tells her to be.
5.29.2009 12:39pm
A. Non E. Mouse (mail):
If cap and trade passes, the wise Latina will have to side with the Latino population who are angry about their utility bills tripling...and overrule cap and trade if it makes it to SCOTUS and she's on it. This wise Caucasiana is down with that.
5.29.2009 2:27pm
Oren:

If cap and trade passes, the wise Latina will have to side with the Latino population who are angry about their utility bills tripling...and overrule cap and trade if it makes it to SCOTUS and she's on it.

On what grounds, exactly? I mean, if the SCOTUS could overrule any law that made the population angry, we'd have quite a different country.
5.29.2009 6:03pm

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