Sonia Sotomayor on the Environment and Energy

The "meltdown" that Sen. Lindsey Graham (R-SC) mentioned as the only possibility to derail Judge Sonia Sotomayor’s nomination to the Supreme Court never materialized during last week’s hearing, and with approval a near certainty, a lot of observers are taking a closer look at what Justice Sotomayor might mean to the Court’s environmental jurisprudence.
Jennifer Koons published a wrap-up of the environmental scuttlebutt from the hearings on Friday at Greenwire. The piece touches on the key cases and questions surrounding them. The key lies in unpacking a comment made by Sen. Arlen Specter (D-PA) when he asked how Sotomayor felt about the Court’s 6-3 reversal of her decision in Riverkeeper v. EPA.
Writing for the 2nd Circuit in Riverkeeper, Sotomayor found for an environmental advocacy group challenging a Bush-era EPA ruling. The EPA exempted Entergy from undertaking a full-dress cost-benefit analysis to evaluate whether the measures they are using to mitigate pollution are the "best" methods available, as required by the Clean Water Act.
On Riverkeeper, Specter said the case "involved the question which is very important to matters now being considered by Congress on climate control and global warming." It is hard to say exactly what Specter meant by “the question”? as it relates to global warming and is embodied in Riverkeeper. Is he just talking about agency deference? Or, cost-benefit analysis specifically? Or, about the provisions of the Clean Water Act as they apply to power companies, and how far the power of existing laws like CWA can be stretched to help in the climate change fight?

The last is the best, because it implies that Specter sees not only the emergence of whatever regimes the the House and Senate can agree upon in conference once the Senate spits out their Waxman-Markey corollary in the fall, but also efforts to assert broader powers under existing law. What would it mean if the EPA decided to broadly interpret the powers that existing law provides as additional levers in putting fossil fueled power plants out of business? The EPA’s announcement - early in the Obama administration - that it had command-and-control authority to regulate carbon under the Clean Air Act is the first sign of that trend. Indeed, the administration strategically announced that ruling to allow the potential power to serve as a sword of Damocles over industries that would much rather take a chance with working a bill through Congress to regulate carbon - and "work it" they did.