In retreat from racism charge, Fox distorts ruling to call Sotomayor ‘environmentalist’

Now that calling Sonia Sotomayor a racist has right wingers fighting each other instead of fighting Democrats, some are retreating to a position they reconnoitered on the morning she was appointed: calling her an environmentalist.
They’re still doing it based on only one 2007 ruling, but in twisting that ruling to those ends, Fox News lied to its readers yesterday:
The 2007 case pitted environmental groups against the Environmental Protection Agency, which at the time was willing to allow a cost-benefit analysis for decisions power plants make when upgrading technology aimed at protecting the environment — in this case, to protect fish in waterways impacted by the plants.
But Sotomayor ruled that, according to the relevant statute, the EPA must consider the best technology available — and cannot factor into the equation the billions it would cost businesses to comply.
Hold it right there, sly one. Environmental groups and state agencies sued EPA for using a cost-benefit analysis instead of the cost-effectiveness analysis required by the statute from Congress. Both types of analysis “factor into the equation the billions it would cost businesses to comply.”
There’s the distortion. And here’s h0w the court interpreted the question it faced:
We understand the difference between these two analyses to turn on the difference between means and ends. Cost-benefit analysis compares the costs and benefits of various ends, and chooses the end with the best net benefits. By contrast, cost-effectiveness considerations determine which means will be used to reach a specified level of benefit that has already been established.”
The decision is much wonkier than it has been portrayed. The court made the best choice for the fishes, and the most literal one for the statute, but not one that disregards the cost to industry. Yesterday’s Fox News report, authored in part by Shannon Bream, and an earlier posting by Steve Milloy, a Fox News columnist and green-conspiracy theorist, portray the decision as cost-benefit vs. cost-be-damned.
In fact, the decision allows industry various options, with varying costs, to meet a set environmental standard. Sotomayor and the two other judges ruled that the EPA is permitted to consider a technology’s cost in determining whether it is `practicable,’ `economically achievable,’ or `available.’ Ultimately the technology must have a cost “that can be reasonably borne by the industry.”
But there’s no reason to take my word or Fox’s word for it. There’s an excellent summary of the decision at the SCOTUS blog, and the language of the decision itself is available from The Federal Reporter.
The Supreme Court overturned the ruling on April 1. Justice Anton Scalia wrote for the majority that it’s perfectly reasonable for EPA to use cost-benefit analysis instead of only cost-effectiveness. Writing for the minority, Justice Stephen Breyer held that Congress intended to limit the use of cost-benefit analysis.
It’s an interesting case to argue for accountants fascinated by types of analysis, but if it’s going to be used to pin an -ism on Sotomayor, she’s a cost-effectivist.