Judge Sotomayor’s Environmental Record
New York Law Journal
On May 26, 2009, President Barack Obama nominated Second Circuit Judge Sonia Sotomayor to replace Justice David Souter on the U.S. Supreme Court. Today’s column discusses Judge Sotomayor’s environmental record.
Before being promoted to the U.S. Court of Appeals for the Second Circuit by President Bill Clinton, Judge Sotomayor was appointed as a judge in the Southern District of New York in 1992 by President George H.W. Bush. Despite Judge Sotomayor’s 17-year tenure on the federal bench, she has authored relatively few opinions concerning environmental law.
In his remarks upon nominating Judge Sotomayor to the Supreme Court, Mr. Obama emphasized that, in addition to someone with a “rigorous intellect,” he sought a nominee who recognizes “the limits of the judicial role, an understanding that a judge’s job is to interpret, not make, law; to approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice; a respect for precedent and a determination to faithfully apply the law to the facts at hand.”
While it is difficult to ascertain from Judge Sotomayor’s opinions whether she would bring a particular environmental perspective to the Supreme Court, it is clear that she is not a judicial activist. She has ruled for and against environmental petitioners, has upheld and struck down environmental regulations, and has evidenced a practical perspective. Her decisions show respect for precedent and statutory language, and appear devoid of an ideological (or, dare we say, “empathetic”) bent.
Although Judge Sotomayor has not authored many environmental opinions, she is on an appellate panel that heard argument three years ago on a potentially important case concerning global climate change. In Connecticut v. American Electric Power Company Inc., a number of state, city and organizational plaintiffs sued a host of industrial defendants, alleging that the defendants’ collective annual production of almost 650 million tons of carbon dioxide significantly contributed to global warming and thus constituted a public nuisance under federal common law. Southenn District Judge Loretta Preska dismissed the claim on the grounds that it was a non-justiciable political question. It has been three years since Judge Sotomayor and her colleagues heard oral argument, and the reasons behind their delay in issuing an opinion remain unknown.
Judge Sotomayor has participated in three cases where environmental petitioners challenged federal agency regulations. Her most notable environmental opinion is Riverkeeper Inc. v. Environmental Protection Agency. In that decision, the court remanded a substantial portion of final regulations by the Environmental Protection Agency (EPA) concerning cooling water intake structures at large power plants. Cooling water intake structures kill plankton, fish and shellfish by “entraining” small organisms into a plant’s cooling system and “impinging” larger ones against an intake screen. Environmental groups and states argued that the regulations were too lax, while the power industry argued that they were too strict.
Judge Sotomayor held that EPA was not permitted to conduct cost-benefit analysis when determining how to best protect marine life because the Clean Water Act requires such structures to utilize the best technology available for minimizing environmental impact. Judge Sotomayor concluded that the requirement of “best technology available” did not allow the EPA to consider the results of a cost-benefit analysis. The U.S. Supreme Court, in a decision by Justice Antonin Scalia, recently reversed this decision. Justice Souter together with Justices John Paul Stevens and Ruth Bader Ginsburg, dissented.
Although not authored by her, Judge Sotomayor was part of the two-judge panel in Natural Resources Defense Council v. Abraham that invalidated an attempt by the Department of Energy (DOE) to reduce energy efficiency standards.
The 1975 Energy Policy and Conservation Act, as amended by the National Appliance Energy Conservation Act, established efficiency requirements for certain appliances. Because the DOE had failed to promulgate efficiency standards as required by an earlier law, Congress itself set standards and forbade the DOE from weakening efficiency requirements.
DOE later went through a rulemaking process and published stricter standards in the Federal Register, but subsequently tried to delay or relax those standards after President George W. Bush’s Chief of Staff, Andrew Card, issued a memorandum asking agencies to postpone the effective dates of proposed regulatory changes. The court conducted a thorough analysis of the statutory language and held that DOE could not rescind its stricter standards, even though those standards had not yet become effective because, the court held, the publication date of the revised efficiency standard, not its effective date, controlled. The court gave no deference to DOE’s interpretation of the statute because the plain language was unambiguous.
In contrast, in Environmental Defense v. EPA, Judge Sotomayor was a member of a unanimous panel that upheld EPA’s approval under the Clean Air Act of New York’s State Implementation Plan (SIP) for the air pollutant ozone.
The Clean Air Act requires that the SIP be based on photochemical grid modeling, a complicated computer model. New York used the model, but felt that the predicted results were inaccurate and reduced the predicted results using “weight of the evidence analysis,” which considers other factors.
The environmental petitioners challenged that analysis, arguing that it displaced the required photochemical grid modeling. The case includes a thorough discussion of air quality modeling and its inherent inaccuracies, and ultimately deferred to EPA’s scientific expertise: “The grid model is not flawless…and EPA concedes the model contains potential inaccuracies. It could not be otherwise when one considers [it] is a highly complex method of predicting how chemicals will combine in the atmosphere to create ozone years in the future. A reviewing court must remember that the agency is making predictions at the frontiers of science.”
The court concluded: “It is not our charge to second guess the agency’s scientific conclusions. If it has articulated a rational basis why weight of the evidence analysis was appropriate, and that reason finds support in the record, we must affirm it.”
We are unaware of any decisions by Judge Sotomayor construing the National Environmental Policy Act (NEPA). However, her district court decision in National Helicopter Corporation of America v. City of New York may shed some light on how she would approach a NEPA case.
National Helicopter involved New York City’s attempt to regulate noise and reduce overall operations at the 34th Street Heliport. The city, after completing its land use process and preparing a final environmental impact statement (EIS) under the State Environmental Quality Review Act (SEQRA), adopted a resolution imposing a curfew at the heliport, requiring a 47 percent reduction in operations, eliminating weekend operations, prohibiting large helicopters, restricting certain sightseeing routes, and requiring certain markings on helicopters. The heliport operator challenged the city’s resolution as unconstitutional because local regulation of aviation is preempted by the Federal Aviation Act and other federal statutes.
Although local regulation of aviation activities through a municipality’s police power is preempted by federal law, municipalities may regulate noise and other environmental considerations, in their role as an airport proprietor, “in a ‘fair, reasonable, and nondiscriminatory’ manner.” Judge Sotomayor noted that any such proprietary regulation is limited: “any regulations undertaken pursuant to the exception—whatever the proprietary interest involved—can be upheld only upon close scrutiny of the underlying rationale, and the factual underpinnings, for the specific measure undertaken.”
Carefully reviewing the analyses and assumptions in the city’s EIS, Judge Sotomayor upheld the city’s regulation of the curfew as a “‘reasonable, non-arbitrary, and non-discriminatory’ exercise of its proprietary rights in connection with operations at the Heliport,”but enjoined the rest of the resolution, principally because the EIS did not support the city’s action.
For instance, even if the 47 percent reduction would reduce noise, she was “concerned that this measure grew out of considerations unrelated to noise, and perhaps more ‘parochial’ in nature.”
She continued that “there is no evidence in the record that the 47 [percent] reduction set out in the Resolution is in any way calibrated to achieve any particular noise-based result. Indeed, the EIS does not evaluate the relative noise levels that could be expected to result from a lesser percentage reduction in operations.”
Similarly, she struck down the weekend prohibition, which was added by the City Council after the completion of the EIS, because it was “not founded upon any scientific analysis of the likely impact of the measure.”
The Second Circuit upheld most of Judge Sotomayor’s decision, but, employing a much more deferential “reasonable basis” standard, reversed on the 47 percent reduction and in the elimination of weekend service.
In New York v. National Service Industries Inc., New York State sued National Service Industries (NSI), a uniform rental company, to recoup the state’s response costs under the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA) for the cleanup of a contaminated landfill in Long Island. An earlier uniform and dry cleaning company, Serv-All, had illegally arranged for disposal of hazardous chemicals in the landfill. Defendant NSI merged with a company that had purchased Serv-All’s assets. Under the traditional common law, a corporation that purchases another corporation’s assets generally does not acquire the seller’s liabilities.
The opinion by Judge Sotomayor dismissed the state’s claim that NSI was liable as the legal successor to the polluter Serv-All. Far from evidencing any signs of judicial activism, the decision is notable principally for its restraint and deference to traditional principles of corporate law.
The main issue in the case was whether federal common law under CERCLA for determining successor liability incorporates New York state law or replaces state law with a uniform federal rule based on common law principles. The state argued that state law should apply, and that New York law concerning successor liability was unsettled and more lenient than the common law with respect to whether continuity of ownership is required to find a de facto merger.
The opinion contains a thorough discussion of choice of law, noting the different outcomes in other federal circuit courts. In the end, however, the court refrained from deciding that issue because it concluded, there would be no successor liability under either a uniform federal rule or the state law. Although New York law on de facto mergers was unsettled, the appellate panel did not certify the issue for review by the New York Court of Appeals. Instead, the court reviewed New York state cases and concluded that, since “New York would not depart from the traditional common law to find a de facto merger in the absence of any evidence of continuity of ownership, we are not presented with an ‘exceptional’ circumstance that would require certification of this question to the New York Court of Appeals.”
Wills v. Amerada Hess Corporation involved a suit by the widow of a seaman against the seaman’s shipping company employers. The plaintiff claimed that her husband’s death from squamous cell carcinoma was the result of exposure to toxic chemicals on-board defendants’ ships, and raised various state tort and federal Jones Act maritime claims, including wrongful death, unseaworthiness, maritime “maintenance and cure,” negligence, and loss of consortium.
This wide-ranging opinion involved rulings on the admissibility of expert testimonyunder Daubert, the applicability of the Federal Rules of Evidence to maritime cases, the district court’s discovery rulings and the application of “The Pennsylvania Rule,” which is “an oddity of admiralty law,” that “shifts the burden of proving causation from plaintiffs to defendants….” The court held that the plaintiff “failed to satisfy her burden to prove causation and that summary judgment in favor of defendants was warranted.”
The vast majority of her remaining cases touching on environmental or land use issues were decided on procedural grounds and not on the merits. See, e.g., Lamar Advertising of Penn, LLC v. Town of Orchard Park (holding that a plaintiff business had standing to challenge a town ordinance governing the erection of billboards and other advertisements), Schaefer v. Town of Victor (holding that the statute of limitations had expired in the petitioner’s action for contribution and indemnification under CERCLA), and Allens Creek/Corbetts Glen Preservation Group v. West (affirming lower court’s judgment dismissing petitioners’ action under doctrine of laches for their delay in challenge to a wetland permit issued by the Army Corps of Engineers).
As evidenced by the relatively small sample of her decisions concerning environmental issues, it does not appear that Judge Sotomayor would bring a distinct environmental agenda to the Supreme Court. Her decisions are thorough and well-reasoned, and have held both in favor of and against environmental plaintiffs.
Christine Fazio and Ethan I. Strell are attorneys in the environmental practice group at Carter Ledyard & Milburn. Michael H. Bauscher, a student at Pace Law School, assisted in the preparation of this column.
Reprinted with permission from the July 26, 2009 edition of the New York Law Journal © 2009 Incisive Media Properties, Inc. All rights reserved. Further duplication without permission is prohibited. Reprint information for the legal properties relative to content searches and copyright clearance is available at www.imreprints.com. For questions contact, email@example.com or 347-227-3382.
 406 F. Supp. 2d 265 (S.D.N.Y. 2005).
 475 F.3d 83 (2d Cir. 2007).
 Entergy v. Riverkeeper Inc., —U.S.—, 129 S. Ct. 1498 (2009).
 355 F.3d 179 (2d Cir. 2004).
 369 F.3d 193 (2d Cir. 2004).
 952 F. Supp. 1011 (S.D.N.Y. 1997), rev’d in part, 137 F.3d 81 (2d Cir. 1998).
 952 F. Supp. at 1024 (quoting British Airways Bd. v. Port Auth. of New York and New Jersey, 558 F.2d 75, 82 (2d Cir.1977)).
 Id. at 1029 (quoting British Airways, 558 F.2d at 82 (2d Cir.1977)).
 Id. at 1030 (quoting British Airways Bd. v. Port Auth. of New York and New Jersey, 564 F.2d 1002 (2d Cir.1977)).
 Nat’l Helicopter Corp. of America v. City of New York, 137 F.3d 81, 91 (2d Cir. 1998).
 460 F.3d 201 (2d Cir. 2006).
 379 F.3d 32 (2d Cir. 2004).
 The court upheld the district court’s exclusion of two expert reports attempting to demonstrate causation between the petroleum-based fuels on board the ships and squamous cell carcinoma. The court also noted a number of times that the decedent was a heavy smoker and drinker and the expert reports discounted the links between drinking and smoking and squamous cell carcinoma. 379 F.3d at 39, 50.
 Id. at 42. The Pennsylvania Rule generally applies in the context of ship collisions, where “it is logical to attribute fault to ‘a ship [that] at the time of a collision is in actual violation of a statutory rule intended to prevent collisions.” In a rare literary flourish, Judge Sotomayor declined to extend The Pennsylvania Rule to this case: “[W]e have been cautious not to extend the Rule’s application in ways that would unmoor it from its animating principles.”
 Id. at 45-46.
 356 F.3d 365 (2d Cir. 2004).
 457 F.3d 188 (2d Cir. 2006).
 2 Fed. Appx. 162, 2001 U.S. App. LEXIS 1370 (2d Cir. 2001).