Sotomayor and Water

Significance of Water Law

Sonia Sotomayor, during her pre-confirmation talks with individual senators, met with Mark Udall. The Colorado senator asked her about legal issues important to the West.

“Udall said she did not appear to know much about water law but understood the issue ‘may be the most challenging legal question we face over the next 25 to 50 years,” according to the Denver Post.

Environmental Decisions

Interest groups and news outlets have dissected Sotomayor's environmental decisions. Most attention has focused on Riverkeeper v. EPA, a Clean Water Act case, and Didden v. Port Chester, a post-Kelo takings case.

Clean Water Act

In Riverkeeper v. EPA, Sotomayor held that the EPA could consider only the capabilities of different technologies when choosing “the best technology” for preventing power plants from sucking in fish. The EPA could not focus on other factors like the costs or burdens particular technologies might impose on industry.

On appeal, the Supreme Court held 6-3 that the term "best technology" does not refer to technology that will reduce environmental harm the most but rather to technology that will reduce environmental harm the most effectively.

Takings

In Didden v. Village of Port Chester, Sotomayor extended the controverial Kelo rule, which allows local governments to condemn property so businesses can redevelop it, and upheld a condemnation action against property owners who had refused to pay an extra fee to a local redevelopment czar in exchange for permission to develop property in the way they wanted rather than in the way envisioned in the redevelopment zone plan.

Commentators have generally attacked the case. Critiques have appeared in the NY Times, Wall Street Journal, Forbes, and Volokh Conspiracy.