Sotomayor targeted as environmental extremist based on one decision

As Sonia Sotomayor’s name zipped around the planet this morning, environmental groups checked their dossiers and found almost no information on the Supreme Court nominee, except for one ruling that made them smile. None of them declared her an environmental savior based on that decision, but given the same information, their opponents didn’t hesitate to call her an environmental extremist.
Steve Milloy, Green Hell author, Fox News columnist, global warming denier, posted this evaluation of Sotomayor this morning:
Obama Supreme Court nominee Sonia Sotomayor represents a potential threat to U.S. consumers and to the economy in terms of energy and the environment…. Senators should probe whether Judge Sotomayor lacks the common-sense realization that the benefits of environmental regulation ought to outweigh its costs — a worldview with ominous implications given the nation’s present rush toward cap-and-tax global warming regulation and other green mindlessness.
What was the decision that has Milloy in such a lather? In Riverkeeper vs. EPA, Riverkeeper challenged an EPA rule that requires power plants to use “the best technology available” to keep fish and other creatures from getting sucked into the intake structures for their cooling towers. Riverkeeper was concerned that EPA was interpreting “best technology” as the cheapest technology for industry, and not necessarily the technology that best spared the lives of wildlife.
In 2007, Sotomayor sided with Riverkeepers in a nuanced decision that allowed industry to consider different options, including cost effectiveness, as long as it chose a cheaper option that achieved results reasonably similar to the most effective affordable options. SCOTUS blog captures the nuance of this as well as Sotomayor’s decsions on other issues:
Environmental Law: Sotomayor’s most notable environmental-law opinion is Riverkeeper v. EPA, 475 F.3d 83 (2d Cir. 2007), a challenge to an EPA rule regulating cooling-water intake structures at power plants. To minimize the adverse impact on aquatic life (which could otherwise be trapped against the intake structure or, if small enough, sucked into the pipes themselves), the Clean Water Act requires the intake structures to use the “best technology available,” without specifying what factors the EPA should consider in determining what constitutes the “best technology available.” Sotomayor wrote and opinion holding that the EPA was not permitted to engage in a cost-benefit analysis to determine “best technology available”; instead, it could consider cost only to determine “what technology can be ‘reasonably borne’ by the industry” and whether the proposed technology was “cost-effective” – which, she concluded, requires the EPA in turn to determine whether the technology at issue is “a less expensive technology that achieves essentially the same results” as the best technology that the industry could reasonably bear. Thus, she explained, “assuming the EPA has determined that power plants governed by the Phase II Rule can reasonably bear the price of technology that saves between 100-105 fish, the EPA, given a choice between a technology that costs $100 to save 99-101 fish and one that costs $150 to save 100-103 fish . . . could appropriately choose the cheaper technology on cost-effectiveness grounds.”
There’s no indication that Sotomayor reached her decision out of a love for fish, rather than a respect for law. Her decision was overturned by the Supreme Court in a 6-3 vote in April. Justice David Souter, who Sotomayor is nominated to replace, voted with the minority.