Ruth Bader Ginsburg established an environmental legacy second to none on the Supreme Court. I’ve explored her legacy by examining a few of her important environmental cases. It meant reading some of her opinions written on key environmental cases over the past 20 years. In particular, Ruth Bader Ginsburg and some of her colleagues were involved in considerations of important lawsuits of climate change and greenhouse gas emissions . She also wrote important dissents in several Clean Water cases, three of which are highlighted here.

RBG’s Environmental Record

RBG authored many significant environmental opinions. These opinions had serious implications fo the Environmental Protection Agency. However, these are not the only environmental cases that were decided during RBG’s tenure on the Supreme Court. Eight environmental cases were selected. In short, legal experts consider these important in the Court’s decisions about how the EPA protects the environment.

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

Ginsburg, according to Lazarus, was progressive liberal with impressive analytic skills which she used in all cases before the court. So, if lawyers approached the court representing environmental cases, she would use her abilities to look at these cases fairly.

Federal Laws

Two Federal laws were under consideration. Namely, the Clean Air Act (1963, 1970, 1977, 1990) and the Clean Water Act (1972, 1977, 1987). For example, the Clean Air Act authorizes the EPA to regulate all air emissions and to establish National Ambient Air Quality Standards (NAAQS) to protect public health and the environment. In addition, the Clean Water Act regulates the discharge of pollutants into the nation’s surface waters, including lakes, rivers, streams, wetlands, and coastal areas.

Clean Air Cases

The Clean Air Act authorized the EPA to monitor the quality of the air throughout the United States. In particular, seven pollutants are monitored: carbon monoxide, lead, nitrogen dioxide, ozone, particle pollution, sulfur dioxide, and carbon dioxide. Ginsburg was involved in several key clean air cases.

Massachusetts v. EPA

First of all, 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.

Figure 1 is the first page of the opinion of the Court written by Justice Stephens. Firstly, I’ve marked up the page highlighting the following words and phrases:

• global temperatures
• increase in carbon dioxide in the atmosphere
• ceiling of a greenhouse
• trapping solar energy
• greenhouse gas
• global warming

In addition, the court agreed with scientists that the rise in global temperatures coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Also, They added that carbon dioxide acts like the ceiling of a greenhouse, trapping solar energy.

Risk of Harm

With that in mind, it is clear that petitioners’ submissions as they pertain to Massachusetts have satisfied the most demanding standards of the adversarial process. EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both “actual” and “imminent.” 

Meanwhile, Massachusetts claimed that failing to regulate emissions motor-vehicles would directly and indirectly harm the state. The concrete injury that they alleged was the loss of coastline to rising sea levels in global warming. In a previous case, Judge Tatel’s view (a dissenting view) was the substantial probability that projected rises in sea level would lead to serious loss of coastal property. He recognized this as specific kind of injury, not a generalized form of harm.

The case also supported the idea that failure to curb greenhouse gas emissions contributed to the sea level changes that threatened Massachusetts’ coastal property. The injury or harms associated with climate change are serious and well recognized. This was stated in the opinion of the court. Other injuries include the global retreat of mountain glacier, reduction in snow-cover extent, and earlier spring melting of rivers and lakes. The petitioners provided data on the amount of sea level rise. They predicted that significant property would be lost over the course of the present century.

Sum Massachusetts v. EPA

To sum the case, I included links to the oral argument and the opinion of the court. The oral argument for the Massachusetts v. EPA case was argued by Mr. James Milkey, who is now Associate Justice of the Massachusetts Appeals Court. Judge Milkey was one of the original Carbon Dioxide Warriors along with Joe Mendelson, David Doniger, Howard Fox and David Bookbinder. They were committed to overturning EPA’s denial of Joe Mendelson’s petition to have the EPA regulate greenhouse gases. The oral argument is one hour long. Listening just to a few minutes is well worth it. The Opinion of the court, which was victory for the Carbon Dioxide Warriors was written by Justice Stevens and read by Justice Kennedy. It’s only 6 minutes long. To the court this action not to regulate greenhouse gases was arbitrary and capricious, and not in accordance with the law.

The Rule of Five

To research Ginsburg’s 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.

Regulating Carbon Dioxide

But years earlier, the Bush administration blocked any attempt to regulate greenhouse gases, thanks to Dick Cheney. In 1988, Joe Mendelson, filed a petition with the U.S. government asking why the EPA was not regulating carbon dioxide and other greenhouse gases.

Lazarus’ book tells the story of Mendelson’s stamina and long term efforts to challenge the government to deal with climate change. It’s an excellent historical account of how persistence led to one of the important significant environmental cases ever.

The case was settled in 2007. When Barack Obama was elected it was clear the environmental movement would be supported by the new administration. And it was. Finally, after more than a decade, climate change might be addressed by the government.

First of all, Obama embraced the Massachusetts v. EPA, and worked to regulate carbon dioxide emissions. Likewise, the Clean Power Plan was initiated by the EPA which would limit greenhouse gases by 32 percent of 2005 levels by 2030. The Paris Agreement, which Obama signed on to continued along the same lines of the Massachusetts v. EPA case results. The Paris Agreement was the culmination of two decades of work, starting with Joe Mendelson, and his Carbon Dioxide Warrors. However, It has temporarily come to halt after Trump decided to pull out of the Paris Agreement.

Alaska Department of Conservation v. EPA

Alaska Department of Conservation v. EPA held that the Clean Air Act authorized the EPA to bar the construction of a polluting facility in Alaska. Ruth Bader Ginsburg delivered the opinion of the Court. The question in this case was does the EPA have the authority to overrule a state agency’s decision that a company is using “best available technology” to prevent pollution.

American Electric Power Co. v. Connecticut

American Electric Power Co. v.Connecticut asked if states and private parties can seek to curb emissions on utilities for their alleged contribution to global climate change. The case was remanded because the Court in Massachusetts v. EPA had indicated that it’s the EPA who regulates greenhouse gases. Ruth Bader Ginsburg wrote the majority opinion.

EPA v. EME Homer City Power

EPA v. EME Homer City Power considered this case to prevent the possible spread of air pollution from “upwind” states to “downwind” states. As a result of the case, “upwind” states are not free from any obligations of “downwind” states’ air pollution. Justice Ginsburg read the majority opinion (6-2) for the EPA. This was an important case to acknowledge that air pollutants have no boundaries. In short, gases travel the way the wind takes them.

Clean Water Cases

The Clean Water Act regulates the discharge of pollutants into the nation’s surface waters. America’s waters unregulated and were dumping ground of pollutants for years. It was passed as law in 1972. It was vetoed by President Nixon, but was overridden by the Senate and the House to become law.

Here are three Supreme Court cases related to the Clean Water Act.

Friends of the Earth v. Laidlaw

Friends of the Earth v. Laidlaw was a case in which residents in the area of South Carolina’s North Tyger River could sue an industrial polluter. Ruth Bader Ginsburg held that injury caused by the polluters lessened the aesthetic and recreational values of the area for residents. In particular, Laidlaw had repeatedly violated the Clean Water Act. In the end, this case stopped their activity.

Solid Waste Agency of Northern Cook County v. Army Corps of Engineers

Solid Waste Agency of Northern Cook County v. Army Corps of Engineers. In this case, the Army Corps of Engineers sued a solid waste agency for disposing solid waste into an abandoned sand and gravel pit. Although the Clean Water Act does regulate discharge into navigable water, the court ruled that the Act does no extend to isolated, abandoned sand and gravel pits with seasonal ponds.

Rapanos v. United States

Rapanos v. United States. In this case, John Rapanos sought to fill in three wetlands areas on his property in order to build a shopping center. Rapanos ignored the fact that these were protected wetlands under the Clean Water Act. However the majority court ruled that the Clean Water Act does not apply to occasional, or intermittent flows, as in the Rapanos case. The dissent argued that the CWA regulations should be upheld. According to the dissent, the inclusion of all wetlands adjacent to tributaries of navigable waters was consistent with the CWA. This case did not resolve the protection of some wetlands. During the Obama administration, the EPA established the Clean Water Rule. The Clean Water Rule clarified water protection in a more consistent manner. Ginsburg had written the dissent in the Rapanos case, and the Clean Water Rule is supported by her dissent. Trump has worked hard to repeal the rule vacating the Stream Protection Rule.

Summary of RGB’s Environmental Cases

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?

Figure 8. Select Environmental Opinions of Justice Ruth Bader Ginsburg