GREENS have a lot to be happy about now that Sonia Sotomayor is poised to be come the next Supreme Court justice — she’s shown she’s willing to impose their agenda from the bench.
In 2006, then-Second Circuit Judge Sotomayor heard arguments in Riverkeeper v. EPA, a suit brought by eco-activist groups led by Robert Kennedy Jr.’s Hudson River pit-bull environmental organization, Riverkeeper.
Riverkeeper sued the Bush Environmental Protection Agency, insisting that the EPA wasn’t doing enough to enforce a provision of the Clean Water Act designed to keep river creatures from being sucked into power plants’ cooling-water intake valves. At issue was language in the act requiring such plants to use the “best technology available for minimizing adverse environmental impact.”
The groups contended that power companies had to do everything possible to save river life, sky-high costs notwithstanding. The EPA, for its part, asserted that the statute allowed weighing the cost of each environmental-technology advance against the number of organisms it would save — and then deciding if the added expense was worth it.
Sotomayor ruled in favor of Riverkeeper. In the process, she muscled aside longstanding Supreme Court precedent which says that as long as a federal agency embraces a “reasonable” interpretation of its governing statute, courts should stay out of the way and let the experts do their job. Happily for the cause of affordable electric-power rates, the Supreme Court bench slapped Sotomayor 6-3 last year.
American Enterprise Institute environment expert Steven Hayward says Sotomayor’s “judicial activism extends in this area to always being on the side of state power, used on behalf of environmental groups.” If Sotomayor ascends to the high court, as appears likely, she’ll have plenty of opportunity to help green activists write environmental regulations through judicial fiat. “Climate change” is the new religion in Washington — with a raft of legislation in the works that will keep lawsuit mills like Riverkeeper in business for years.
The Obama EPA is moving toward regulating carbon dioxide as a pollutant under the Clean Air Act — originally written to curb smog-causing toxins like lead and sulfur dioxide — based on a 2007 Supreme Court decision. Politicians, industry and activists will battle over how strict those regulations should be. If coal-fired power plants aren’t regulated out of existence, many expect environmental groups to assault the EPA’s interpretation of the carbon regulations with yet more lawsuits.
Another plum target is the cap-and-trade bill now working its way through Congress. The legislation would aggressively slash carbon emissions, thereby crippling industry in farm and coal-producing states. So it’s a political minefield for Democrats. Congressional sources say climate-change enthusiasts on the Hill have been making major concessions and exceptions, watering the bill down in order to get the support they need from moderates in their own caucus.
As a result, the version that emerged from the House Energy and Commerce Committee last month didn’t pass muster with the green crowd. Groups like Greenpeace and Coal Moratorium Now! slammed the bill as “the triumph of politics over science,” adding: “We cannot support this legislation unless and until it is substantially strengthened.”
If a tamed version of cap-and-trade is made law, the greens needn’t worry. They can bring a few lawsuits alleging that the EPA isn’t carrying out the statute how Congress intended (read: the way they want). If the suits reach the high court, precedent suggests Justice Sotomayor would be on their side.
Given what’s at stake, Senate Judiciary Committee members — particularly coal-producing Pennsylvania’s Arlen Specter — should probe Sotomayor’s views in this area. Ideally, they’d get her to go on the record stating that judges shouldn’t make environmental policy.
But even then, prepare for some noxious eco-activism to come wafting from the Supreme Court.
Meghan Clyne is a DC writer.