Special Topics in Environmental Management

SCOTUS and Environment, Part 1: Ruth Bader Ginsburg’s Legacy

Environmental activists mourn the loss of U.S. Supreme Court (SCOTUS) Justice Ruth Bader Ginsburg, who died on September 18, 2020, due to complications of metastatic pancreas cancer at the age of 87.

Gavel, scales of justice and law booksEven in her passing, she made history as the first woman and first Jewish person to lie in state at the U.S. Capitol, according to USA Today. Ginsburg reached iconic status with the nickname Notorious RBG (a play on late rapper Notorious B.I.G.’s name), a moniker she eventually embraced. She was an accomplished advocate for gender equality and the second woman appointed to SCOTUS.

In spite of her advocacy for women’s rights, she was not always accepted by feminists as a role model for their cause. Appointed by President Bill Clinton, Ginsburg was not his first choice.

“Clinton reportedly was concerned that women’s rights groups could only muster tepid support for Ginsburg because of her centrist reputation, despite her legal crusade for gender-blind justice in the 1970s,” according to Law360.com. “Modern feminism had in some sense passed her by, and her public suggestion that a more narrow ruling in Roe v. Wade may have served abortion rights better in the long run was not viewed favorably by some female activists.”

Environmental Legacy

Ginsburg voted with the majority in the landmark 2007 Supreme Court case Massachusetts v. EPA, which said the EPA had the authority to regulate greenhouse gasses from automotive emissions. This was SCOTUS’s first decision related to climate change.

As a result of this decision, in 2009, the Obama administration issued many rules limiting carbon emissions from plants, cars, and other pollution sources. It also set the stage for explosive legal battles over the extent of federal authority that are still being debated more than a decade later.

Ginsburg wrote a unanimous decision by SCOTUS in 2011 in American Electric Power v. Connecticut, which is believed to have further strengthened the EPA’s authority to regulate greenhouse gas emissions.

She ruled against many states when they tried to sue private energy companies to set caps on their carbon emissions under public nuisance law claims. At that time, she wrote that the 2007 Massachusetts ruling giving the EPA authority over these emissions meant the state’s federal common-law claims were blocked.

“Her greatest contributions were rooted not in her ideology, but in her skills as one of the most talented lawyers ever to serve on the court,” wrote Harvard Law School Professor Richard Lazarus, according to Bloomberg Law. “What makes Ginsburg’s record in environmental cases striking is that although she voted frequently in ways applauded by environmentalists, if she was not persuaded by their legal arguments, she would not hesitate to vote against them.”

When Ginsburg was appointed to SCOTUS in 1993, she had no record on environmental issues. She had no background in environmental law as an attorney, and as a judge in the U.S. Court of Appeals for the D.C. Circuit, she had a reputation as a pro-business jurist. Industry support is partly attributed to her overwhelming 96-3 Senate confirmation vote, despite her obvious liberal views on women’s rights and abortion.

Ginsburg is credited with being a strong voice in defining SCOTUS’s case law on climate change and has a long history of voting for environmental protection issues.

Other cases include:

  • Whitman v. American Trucking Assns., Inc.: A unanimous 2001 SCOTUS decision that ruled the EPA cannot consider implementations costs when deciding air quality pollution limits. This is historically considered to be one of the court’s most important environmental rulings that is credited with improving and saving millions of lives.
  • Solid Waste Agency of Northern Cook County v. United States: Ginsburg dissented in this 2001 case, in which the majority ruled that the U.S. does not have jurisdiction over isolated ponds and wetlands.
  • Rapanos v. United States: The Court splintered in a 4-1-4 decision in this 2006 case, in which Ginsburg joined previous justice John Paul Stevens in arguing that federal jurisdiction should apply to virtually any body of water.
  • EPA v. EME Homer City Generation: Ginsburg authored the 2014 decision, reversing a lower court and upholding an Obama rule limiting air pollution that drifts across state lines. This ruling is credited with shutting down several of the “nation’s dirtiest power plants,” according to Politico.
  • County of Maui v. Hawaii Wildlife Fund: In this April 2020 decision, Ginsburg voted with the majority in a 6-3 decision ruling that pollution traveling into waterways through groundwater can be subjected to Clean Water Act (CWA) regulations.

Ginsburg consistently voted for broad federal jurisdiction under the 1972 CWA, which has resulted in many legal battles that continue to come before SCOTUS.

Actions that are expected to eventually make their way before SCOTUS are challenges to the Trump administration’s regulations narrowly defining what constitutes a federal waterway, as several suits filed by environmental and property rights groups, and Democratic attorneys general, are in the early stages of hearing at the district court level across the United States.

Due to the continued legal battles and a shifting regulatory environment, power plants have not yet been subjected to carbon dioxide regulations. The Massachusetts v. EPA decision—along with “market pressure from cheap natural gas and renewables—helped cause a huge shift in the nation’s electricity mix: The U.S. is projected to generate just 20 percent of its electricity from coal this year, compared with almost half when the court ruled (in 2007),” according to Politico.

“Coincidentally, Ginsburg’s ruling could play a key role in an upcoming legal battle over climate change compensations,” Politico wrote. “More than a dozen cities, counties and states in recent months have sued fossil fuel companies in state courts in a wave of lawsuits intended to make the corporations pay for climate change-related harms such as extreme weather and sea level rise. The companies have tried to move those cases out of the states and into federal courts—where they probably would be blocked as Connecticut’s suit was in 2011. But three appellate courts that have weighed in on the jurisdictional question have sent the cases back to the state courts, which could open the companies up to untold liability.”

With the Supreme Court heading back for its fall term shortly, the justices will soon decide whether to hear cases related to jurisdictional matters in climate change issues.

Shaping the Legacy

Ginsburg was no stranger to adversity.

Born Joan Ruth Bader in Brooklyn, New York, on March 15, 1933, her father was a furrier, and her mother worked in a garment factory. Her mother died of cancer the day before Ginsburg graduated high school. Ginsburg delayed her own higher education to help finance her brother’s education. She graduated top of her class with a Bachelor of Arts degree from Cornell University in 1954. That was the year she married her husband, Martin, soon after he was drafted into the military for 2 years. Her daughter, Jane, was born in 1955. When Martin returned from his military service, Ginsburg enrolled at Harvard Law School.

During her first year at law school, Ginsburg’s husband was diagnosed with testicular cancer. He was also attending Harvard Law. Ginsburg is credited with keeping Martin up to date on his studies while also maintaining her top position in her law school class, in which she was 1 of 9 female students in a 500-member class. She was the first female member on the Harvard Law Review.

After Martin recovered from cancer, he accepted a position at a law firm in New York City, so for her final year, Ginsburg transferred to Columbia Law School, where she graduated first in her class in 1959.

Upon graduating, she met gender discrimination in not being able to find employment in the male-dominated legal field. She said she had three strikes against her.

“First, I was Jewish, and the Wall Street firms were just beginning to accept Jews. Then I was a woman. But the killer was my daughter Jane, who was 4 by then,” she told The New York Times in 2015.

A favorite Columbia law professor went to bat for her and refused to recommend any other graduates to U.S. District Judge Edmund L. Palmieri. Ginsburg clerked for Palmieri for 2 years. After her clerkship, she was offered employment at several law firms for much less pay than her male counterparts, but she chose to join the Columbia Project on International Civil Procedure. She lived abroad in Switzerland for a time to research her book on Swedish civil procedure practices. Upon returning stateside, she accepted a position at Rutgers University Law School in 1963. Her son, James, was born during this time in 1965, and she reportedly hid her pregnancy from her Rutgers colleagues as long as possible due to gender inequality. She later accepted a position at Columbia Law School in 1972 and became the first female to be tenured as a professor.

During the 1970s, Ginsburg directed the Women’s Rights Project of the American Civil Liberties Union (a movement she cofounded) and argued six landmark cases before SCOTUS, losing only one case.

“She was just a little, tiny, slight woman,” remembers Georgetown law professor Susan Deller Ross, who worked with Ginsburg at the Women’s Rights Project, “but she was so incisive, she was so sharp. She persuaded the Court because she was just brilliant.”

One tactic was to use the phrase “gender discrimination” rather than “sex discrimination” in her arguments. She credited her secretary at Columbia Law School for inspiring the word choice when she came to Ginsburg and said, “I’m typing these briefs and articles for you and there’s the word sex, sex, sex on every page! Don’t you know that those nine men to whom you are arguing, when they hear that word, their first association is not what you want them to be thinking about?!”

In 1980, Jimmy Carter appointed Ginsburg to the U.S. Court of Appeals for the District of Columbia, where she served for 13 years until Clinton appointed her to SCOTUS.

Ginsburg was known for being soft-spoken but legally gifted and was credited with being one of the most vocal in lobbying queries from the bench for those appearing before SCOTUS.

“Before the coronavirus pandemic shut down most public events, Ginsburg was often seen touring the country like a rock star, speaking at law schools or other legally minded venues, or before large synagogues or the 92nd Street Y in Manhattan,” according to Law 360. “While Ginsburg seemed to sincerely enjoy the attention, earlier in her career she often said she was merely trying to keep up with the busy public schedule of her one-time colleague, retired Justice Sandra Day O’Connor, the first woman on the high court, who firmly believed that it was part of her mission to be a highly visible justice.”

Undoubtedly a hard worker, Ginsburg never missed a day of oral arguments until her 2018 term. She worked while undergoing chemotherapy, after colon cancer surgery, and the day after her husband passed away in 2010.

“Justice Ginsburg proved time and again that she was a force to be reckoned with, and those who doubted her capacity to effectively complete her judicial duties needed only to look at her record in oral arguments,” according to Oyez.org.

Ginsburg’s legacy will not be forgotten.

“Through her expansive mind, sound temperament and unwavering judicial integrity, she plied the Constitution as a living instrument of American life, lending it meaning in the life of us all,” said Gina McCarthy, president of the Natural Resources Defense Council and former EPA administrator.

“Our communities are safer, healthier and more free because of RBG,” said League of Conservation Voters President Gene Karpinski.