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

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

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

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?

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.

Figure 8. Select Environmental Opinions of Justice Ruth Bader Ginsburg