Show Sotomayor How It’s Done
Would you like to receive honorable mention for showing Sonia Sotomayor how it’s done? If so, just rewrite this clunker so it’s crisp and clear:
The Agency is therefore precluded from undertaking such cost-benefit analysis because the [best technology available] standard represents Congress’s conclusion that the costs imposed on industry in adopting the best cooling water intake structure technology available (i.e., the best-performing technology that can be reasonably borne by the industry) are worth the benefits in reducing adverse environmental impacts.
That graph comes from the judge’s opinion in Engerty Corp. v. Riverkeeper, “which,” writes Stephanie Mencimer, staff reporter for Mother Jones, “questioned whether the Clean Water Act allows the Environmental Protection Agency (EPA) to use a cost-benefit analysis of technology available to reduce the impact of power plants on fish and other aquatic life.”
Mencimer recently wrote an article (“Sonia Sotomayor’s Prose Problem”) comparing Sotomayor’s writing skills to those of Antonin Scalia. Here’s the intro to Mencimer’s article (which gets the reader to wonder whether writing skills is one key quality):
As a Supreme Court nominee, Sonia Sotomayor has a lot going for her: a stellar judicial record, a Yale Law School pedigree, a compelling personal history, and more trial experience than any other sitting justice. But while she’s clearly a bright and talented lawyer, she unfortunately lacks one of the key qualities of a successful Supreme Court justice: writing skills. To put it bluntly, Sotomayor doesn’t write very well. Reporters have sort of danced around this problem. The New York Times’ Adam Liptak charitably described her opinions as models of judicial craftsmanship that are “not always a pleasure to read.”
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Legal Writing Pro, and award-winning journalist, Ross Guberman, has just about had it with people making fun of Sotomayor’s writing skills, so he’s come up with a put-up-or-shut-up solution:
To me, though, this sort of jab carries weight only if the critic (or someone else) can make the same points much more crisply and clearly than Sotomayor did. I doubt it’s as easy as the Mother Jones critic claims, so let’s resolve the matter through a competition. Revise Sotomayor’s allegedly awful sentence, and I’ll publicize the best response.
This sounds like a fantastic opportunity for some law student looking to be noticed.
17 June 2009 at 16:27
I would put it this way:
The governing standard is the best technology available standard. Congress adopted this standard because it determined that the environmental benefits are worth the costs of adopting the best cooling water intake structure technology reasonably available. The Agency erred because it undertook its own cost-benefit analysis, and in so doing, failed to apply the best technology available standard.
18 June 2009 at 8:13
In adopting the “best technology available” standard, Congress required industry to use the best available technology the industry could afford. In doing so, Congress implicitly enacted its own cost-benefit analysis, concluding that the best available technology is worth the environmental benefits that technology provides. Because (a) the Agency cannot act beyond the scope of its legislative mandate and (b) the legislative mandate in this case imposes a cost-benefit analysis, the Agency cannot undertake its own cost-benefit analysis.