Supreme Court Justice Ruth Bader Ginsburg (RBG) had a profound affect on the world. Not only was she a Supreme Court Justice, but had attained the status of a “rock star.” Like John Lewis, Justice Ginsburg influenced our thinking about justice for all people. Each of these giants of American society believed in the rights for all people, regardless of race or gender. As a result, they did something about it.
In this post, I want to explore how RBG affected environmental law. Justice Ginsburg was appointed to the Supreme Court in 1993 by President Bill Clinton. She had been appointed as a Federal Judge by President Jimmy Carter in 1980. In particular, she was involved in hundreds of cases, and wrote the opinion—majority and dissenting—in many of them. Her case load is impressive. What might surprise you is that she had a lot to say about the environment. She was involved in some landmark cases affecting the Clean Air and the Clean Water Acts.
Table of contents
Ruth Bader Ginsburg & the ACLU
While working with the ACLU, Ginsburg led the way to achieve gender equality for women and men. She founded the ACLU’s Women’s Rights Project in 1972. You can read the full tribute to Ruth Bader Ginsburg on the ACLU website.
According to David Cole, ACLU Legal Director “With the exception of Thurgood Marshall, no Supreme Court justice did more to realize the Constitution’s promise of “equal protection of the law” than Ruth Bader Ginsburg.”
She was one of nine women in a class of 500 at Harvard Law School. This is a clip from the 2018 movie “On the Basis of Sex.”You will witness one of the most gifted lawyers of our time. You’ll see her strengths as a lawyer, as well as her humaneness
A second movie that about her is the Documentary, RGB which was released also in 2018. This film chronicles her career, which spans several decades. She graduated Columbia Law School in 1959, worked with the ACLU in the 1970s, and was nominated to the United States Court of Appeals for the District of Columbia Circuit in 1980. In 1993, she was sworn into the U.S. Supreme Court. She became the second female justice ever appointed. As a Supreme Court Justice, she became famous for her dissents from majority opinions.
RBG’s Caseload 1993-2020
Ruth Bader Ginsburg wrote opinions for 27 years on the Supreme Court. She authored 226 majority opinions, wrote other opinions, including 94 dissenting opinions.
There are great sources online to research Ginsburg’s work. One web sight listed all of her Supreme Court case opinions. Yes, I counted the cases and made a chart of her judicial work shown in Figure 3.
She wrote majority and dissenting opinions on a number significant or landmark cases.
For example, Ginsburg dissented Bush v. Gore, 2000. She simply wrote, “I dissent.” Later, in a speech at the University of Melbourne Law School, she said this about the decision:
whatever final judgment awaits Bush v. Gore in the annals of history,” public confidence in the whole federal judiciary (not just the Supreme Court) would be sustained “at a level never beyond repair”—a judicious way of saying that, in time, the drop in confidence could be fixed.
Norman, K. (2020, September 19). Read Ruth Bader Ginsburg’s Fiery Speech Following Bush v. Gore. Retrieved October 03, 2020, from https://earlybirdbooks.com/ruth-bader-ginsburg-speech-bush-v-gore
Other important cases included Obergefell v. Hodges, 2015, which gave same sex couples the right to marry in all 50 states. In Shelby County v. Holder, 2013, which “gutted” the 1965 Voting Rights Act, Ginsburg voices dissent. As a result of this case,, it has become more difficult for a lot of people to vote in several states. There are many other that you can find here.
RBG’s Environmental Record
RBG authored many significant environmental opinions. These opinions had serious effects on the Environmental Protection Agency’s edict to protect American’s environment. These are not the only environmental cases that were decided during RBG’s tenure on the Supreme Court. Eight environmental cases were selected. Legal experts consider these important in the Court’s decisions about how the EPA protects the environment.
Two Federal laws were under consideration The Clean Air Act (1963, 1970, 1977, 1990) authorizes the EPA to regulate all air emissions and to establish National Ambient Air Quality Standards (NAAQS) to protect public health and the environment. The Clean Water Act (1972, 1977, 1987) is a Federal law that regulates the discharge of pollutants into the nation’s surface waters, including lakes, rivers, streams, wetlands, and coastal areas.
Clean Air
To research her environmental record, I’ve looked to the work of Richard Lazarus, Professor, Harvard Law School. To begin with, his recent book, The Rule of Five: Making Climate History in the Supreme Court, gives an in depth examination of the story of the 2007 Massachusetts v. EPA case. According to many, this was one of the most important environmental cases decided by the Court. The case, decided by a 5-4 vote, said yes to the question: Does the Clean Air Act give the EPA authority to regulate carbon dioxide and other greenhouse gases. The majority opinion required the EPA to consider climate change in its protection of the quality of the air.
According to Richard Lazarus, Ginsburg was not a pushover for environmental groups approaching the Bench.
But what makes Ginsburg’s record in environmental cases all the more striking is that if she was not persuaded by a legal argument advanced by an environmental advocate, she would not hesitate to vote against it. And she did just that on several occasions.
Lazarus, R. (n.d.). INSIGHT: RBG’s Everlasting Impact on Environmental Jurisprudence. Retrieved October 03, 2020, from https://news.bloomberglaw.com/environment-and-energy/insight-rbgs-everlasting-impact-on-environmental-jurisprudence
The Clean Air Act authorized the EPA to monitor the quality of the air throughout the United States. In the case of air quality, seven pollutants are monitored: carbon monoxide, lead, nitrogen dioxide, ozone, particle pollution, sulfur dioxide, and carbon dioxide. For example, Figure 4 shows particulate daily values for the city of Atlanta.
The most significant of the Clean Air Act cases is Massachusetts v. EPA. In this case, the Court ruled that the Environmental Protection Agency had to consider the greenhouse gas effect in the context of global warming and climate change. In short, the EPA possesses the authority to regulate greenhouse gases.
The following cases dealt with the Clean Air Act.
- Alaska Department of Conservation v. EPA
- Massachusetts v. EPA
- American Electric Power Co. v.Connecticut
- EPA v. EME Homer City Power
Clean Water
The following cases dealt with the Clean Water Act.
- Friends of the Earth v. Laidlaw
- Solid Waste Agency of Northern Cook County v. Army Corps of Engineers
- Rapanos v. United States
In Figure 5, I’ve charted seven of RBG’s cases. You’ll find the questions that guided the case, as well as the opinion rendered by the court, as well as some factual information about the case. I’ve also noted what role did RBG play in the case. Did she write the opinion? Majority or the dissent?
RGB’s Environmental Cases
| Year | Supreme Court Case | Questions | Opinion | RBG Opinion | Comments |
| 2000 | Friends of the Earth v. Laidlaw | Does an environmental group’s citizen suit for civil penalties under the Clean Water Act become moot when the defendant, after commencement of the litigation, has come into compliance with its National Pollutant Discharge Elimination System permit? | Yes, 7,2 | RBG Delivered the opinion | Upholding the rights of private citizens to bring lawsuits in federal court directly against industry in violation of important environmental laws like the Clean Water Act (CWA). |
| 2001 | Solid Waste Agency of Northern Cook County v. Army Corps of Engineers | May Clean Water Act (CWA) be extended to interstate waterways? Does Congress have authority to exercise this? | No by 5-4 vote; and Unanswered | RBG joined dissent. Expressed support for expansive definition of jurisdictional waters under CWA. | The Solid Waste Agency selected an abandoned sand and gravel pit as a solid waste disposal site. |
| 2004 | Alaska Department of Conservation v. EPA | Under the Clean Air Act, does the Environmental Protection Agency have the authority to overrule a state agency’s decision that a company is using the “best available controlling technology” to prevent pollution? | Yes in 5-4 vote | RBG Delivered the opinion | Upholding the EPA’s insistence that the state of Alaska do more to limit air pollution. |
| 2006 | Rapanos v. United States | Does phrase “waters of the United States in CWA include a wetland that occasionally empties into a navigable waterway? | Unanswered | RBG joined dissent. Agued that the Corp’s regulations should be upheld. All wetlands adjacent to tributaries of waterways should be protected to eliminate pollution of waterways. | Rapanos sought to fill three wetland areas on his property to build a shopping center. |
| 2007 | Massachusetts v. EPA | May the EPA decline to issue emission standards for motor vehicles based on policy in the Clean Air Act? Does the CAA give EPA authority to regulate CO2 & other greenhouse gases? | No and yes by 5-4 vote | RBG Joined the majority by John Paul Stevens. Court made clear that if EPA continues its inaction on carbon regulation, it must based its decision on whether greenhouse gases contribute to climate change. | The Court rejected the EPA’s argument that CAA was not meant to refer to carbon emissions. The states could sue the EPA over damage caused by air pollutants in its territory. |
| 2011 | American Electric Power Co. v.Connecticut | Can states and private parties seek to curb emissions on utilities for their contribution to global climate change? Can a cause of action to reduce carbon dioxide emissions be implied under federal law? | No | RBG Delivered the opinion. The EPA must regulate emissions from power plants. See Massachusetts v. EPA. | The court reversed and remanded the lower court order. The CAA and EPA action displace any common-law right to seek abatement of carbon dioxide emissions from fossil fuel fired power plants |
| 2014 | EPA v. EME Homer City Power | Did Court of Appeals correctly interpret language in the Clean Air Act when it reviewed the EPA’s actions? Is an upwind state free from any obligations to downwind states’ air pollution. | NO, No by 6-2 vote | RBG Delivered the opinion. This case regulates coal plants where their air emissions blew across state lines and affected the air quality of states downwind. | It means that large sources of nitrogen oxide and sulfur dioxide emissions from states will be regulated. These gases are changed in transport to ozone O3 and particulates which are pollutants. |
Conclusion
Ruth Bader Ginsburg made the world a better place.
Ginsburg’s groundbreaking work on the rights of people, regardless of gender, helped reduce discrimination based on gender. Her years of work with the ACLU changed the way women were treated in the workplace and at home. But there is so much more to do.
Finally, justice Ginsburg’s work on environmental protection cases was impressive. This post explored some of her cases, and how they affected the earth’s environment. There will be more posts about how her environmental work can be connected to science education.
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