Sotomayor Revision: And the Winner Is . . .

When a critic cited the following passage as proof of Sotomayor’s poor writing skills, I challenged you to a rewrite. Hundreds of you responded, and today I announce the winner!

The Original

Here is the passage under attack:

“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.”

As many of you guessed, I don’t think this sentence is as awful as the critic suggested. If it were, we could rewrite it in a way that’s significantly clearer--without losing any of Sotomayor’s meaning in the process.

We critics should play fair. You can’t compare a sentence in a legal opinion with a sentence in a legal thriller. To paraphrase Donald Rumsfeld, we lawyers write with the content we have, not the content we want.

Here, for example, Sotomayor had to get six points across:

1. Her conclusion (to preclude any more cost-benefit analysis)
2. The applicable standard (“best technology available”)
3. The origin of the standard
4. The intent of the standard
5. How the standard works in relation to cost-benefit analysis
6. The technology in question

Not an easy task! That said, I thought that many of you had interesting ideas on how to get these six points across more effectively. At the same time, although some revisions were much shorter than Sotomayor’s original, to my mind, they lost some of her key points along the way.

The Winners

Picking a “winner” was much harder than I thought it would be, so I’m going to punt a bit. Here’s a great two-sentence version of the original followed by a great one-sentence version:

Two-sentence version, by Bern Rappold at EPA:

“In imposing the requirement for best cooling water structure technology available, Congress concluded that the environmental benefits of the technology outweigh the costs industry bears in adopting it. Therefore, the Agency is precluded from undertaking further cost-benefit analysis of the technology.”

This version streamlines several of the concepts in a way that’s easy to follow. I myself would move “therefore” to before “precluded.”

One-sentence version, by Joel Trotter at Latham & Watkins:

“The Agency may not use a cost-benefit analysis here because the statutory standard reflects Congress’s decision that the environmental benefits outweigh the industrial cost of mandating the best available technology for cooling water intake structures.”

I liked this one as well because it shows that the original can stand as a single sentence. Joel also got an extra point for making the possessive of Congress with an ’s, as does Justice Sotomayor herself.

One thing we can all agree on: In the next few months, we’ll have plenty of chances to revisit Sotomayor’s writing. Stay tuned!

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