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Environmental Law

: ESA Blawg

Speculation on Species and Ms. Sotomayor

By Keith Rizzardi

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A potential Supreme Court Justice has been nominated, so let the wild speculation begin. How might Sonia Sotomayor change the highest court? Will she declare the Endangered Species Act unconstitutional? Indeed, for all the talk about “legal philosophy,” David Brooks and Gail Collins opine that the whole debate really is about policy, including whether a new justice will let the federal government keep protecting endangered species. See New York Times blog. No one really knows, but still the ink flows.

Grist says Ms. Sotomayor has a small but solid record on environmental rulings, further quoting EarthJustice President Tripp Van Noppen to say that “This is the best Supreme Court nomination in many years.” Skinny Moose says there’s not a lot of information out there, but based on the few morsels that do exist, Legal Planet thinks that “environmental issues are unlikely to loom large in the confirmation battle” because in a Second Circuit environmental case, Ms. Sotomayor said EPA could consider whether benefits were grossly disproportional to costs (a ruling deemed an environmentalist defeat.)

KEITHINKING: I’ll join the speculators, because, as even Ms. Sotomayor recognized, in her much criticized legal education presentation, courts are engaged in the "percolation" of policy. IMO, Ms. Sotomayor would be unlikely to find the ESA unconstitutional. In U.S. v. Giordano, Ms. Sotomayor rejected a commerce clause based effort to limit Congress’s regulatory power, holding (in a criminal case) that a national telephone network was an instrumentality of interstate commerce, even though a particular fact-pattern occurred only in an intrastate context. So even if Pacific Legal Foundation reaches the Supreme Court with their constitutional challenge of the ESA and argument that the delta smelt is a purely intrastate species, Ms. Sotomayor is probably a vote against them. (Nod to Sive, Paget and Reisel LLC)