A valedictory U.S. Supreme Court opinion she joined in April, and a federal appellate court ruling this past Thursday, underscore Justice Ruth Bader Ginsburg’s contributions to environmental protection in America, and potential impacts of a sharp right turn on the high court.
Justice Ginsburg won legal fame, and icon status as the “Notorious RBG,” for her advocacy of women’s rights and equality before the law. What’s less known, is that the Brooklyn-born Ginsburg was most sympathetic and took a more expansive view of environmental justice than any other member of The Brethren.
The April opinion came in the case of Maui vs. Hawaii Wildlife Fund. With Ginsburg in the majority, and Chief Justice John Roberts supplying the swing vote, the Supremes ruled that a sewage treatment plant on Maui could not avoid getting a Clean Water Act permit before pumping pollution into the island’s ground water.
The appellate court ruling temporarily blocked a massive rollback in Obama-era methane emissions standards from being implemented by the Trump Administration. The planned rollback is so radical that it has drawn opposition from within the oil and gas industry, where companies had prepared to comply with the regulations due to be rescinded.
The methane case is likely headed for the Supreme Court. So is legal action challenging a Trump Administration plan to use regulatory changes to roll back enforcement of the National Environmental Policy Act, particularly the right of citizens to challenge projects with impacts on the environment..
“The death of Ruth Bader Ginsburg could have a big impact on climate regulations,” warned the Environmental Defense Fund, which is litigating cases in the lower courts.
The nation’s Democratic attorneys general, often led by Washington AG Bob Ferguson, have blocked many of the Trump administration’s environmental rollbacks at the lower court level. “We’ve been winning,” said Massachusetts AG Maura Healey. She appeared with Ferguson Monday on MSNBC to talk about their legal challenge to planned oil drilling in the Arctic National Wildlife Refuge.
The Institute for Policy Integrity at New York University reports that the EPA has won just 9 out of 47 cases in court, and the interior department just four of 22. Ferguson has, for instance, blocked a planned rollback in energy efficiency standards for appliances.
The Supreme Court has often been split. With Ginsburg a forceful voice in the majority, the court ruled (Massachusetts vs. EPA) that the Environmental Protection Agency has authority to regulate carbon dioxide and other pollutants contributing to the rise in temperatures, and that states and environmental groups have standing to sue over climate change. It was a 5-4 ruling.
In an earlier Rapanos vs. United States ruling, however, a 5-4 majority voided rulings against a company that had filled 22 acres of wetlands as part of a commercial development. (After the case was remanded, the company paid a $1 million settlement with EPA.)
Justice Antonin Scalia, writing for four justices (himself, Roberts, Samuel Alito and Clarence Thomas) railed against the “immense expansion of federal regulation” over what he described as ”swampy lands”. Scalia argued that the U.S. Army Corps of Engineers “exercises the discretion of an enlightened despot.”
Supreme Court nominee Judge Amy Coney Barrett is a former Scalia law clerk. She is also an outspoken “originalist.” She is unlikely to find rights in the “penumbra” of the U.S. Constitution, or have any truck with Justice William O. Douglas’ famous “trees have standing” dissent in Sierra Club vs. Morton. (Douglas was on the losing side, but Disney ultimately abandoned ski resort plans and the Mineral King valley was added to California’s Sequoia National Park.)
“If a sixth conservative justice is confirmed, Chief Justice Roberts no longer will be the swing vote and the other five conservatives would be free to embrace more extreme interpretations of the environmental laws,” Robert Percival, professor of environmental law at the University of Maryland, told the Washington Post.
Added Jody Freeman, director of the Harvard Law School environment and energy law program: “A further tilt of the Court in the direction it is already going – skeptical of regulation, unsympathetic to the idea that agencies should have some room to interpret their statutes broadly to solve new problems, and uninterested in reading statutes with their broader purpose in mind, certainly won’t help the cause of environmental protection.”
What issues are likely to make their way up to the Supreme Court?
Environmental and Native American group have filed legal challenges to Trump’s unilateral evisceration of the Grand Staircase-Escalante and Bears Ears National Monuments in southern Utah. Rollbacks in oil platform safety, put in by the Obama Administration after the DeepWater Horizon catastrophe in the Gulf of Mexico, are under challenge.
A certain future Supreme Court case is the battle between states (including Washington and California) over auto emission standards. The Trump administration has not just relaxed fuel efficiency standards. It is seeking to force compliance from states that have enacted stricter emission requirements.
The Supreme Court is known through history for its landmark rulings on social issues, from school desegregation to throwing out laws against contraception, from making abortion legal to rolling back sodomy laws and later legalizing same-sex marriage equality.
But a less known high court opinion protected the deepest canyon in North America. The Federal Power Commission, in the 1960’s, was deciding whether to allow private utilities or public utilities (WPPSS) to build a 600-foot-high dam in Hells Canyon of the Snake River.
With “Wild Bill” Douglas in the majority, the Supreme Court temporarily blocked construction of High Mountain Sheep Dam and directed the FPC to consider other values (recreation) and alternatives to damming the canyon. The dam was never built, and 100 miles of canyon were protected when Congress created the Hells Canyon National Recreation Area.
AGs Ferguson, Healey and California’s Xavier Becerra have gone high and gone low in their suits against the Trump Administration.
Ferguson has won victories using an obscure law, the Administrative Procedures Act, which requires consultation and input before regulations can be changed. Both he and Becerra have spoken of “sloppy” administration legal work as a secret weapon.
In the Arctic Refuge suit, 15 AGs are accusing the Trump Administration of violating the National Environmental Policy Act, for failing to evaluate impacts of oil and gas leasing on migratory birds. They are faulting the U.S. Interior Department for its failure to consider the climate impacts of a vast new energy development in the high Arctic. They argue that the “lower 48” will feel impacts from the warming of the Arctic, e.g. rising sea levels and acidic oceans.
Climate change has already factored in challenges to Trump policies. A U.S. District Court has granted a preliminary injunction to environmental lawyer who challenged the U.S. Bureau of Land Management over its grant of grazing permits in eastern Oregon. The grounds: Failure to consider climate impacts.
Of Ruth Bader Ginsburg, the Sierra Club eulogized: “She championed the rights of citizens to take action in court to prevent environmental harm. She defended the Clean Air Act, Clean Water Act and authored several of the opinions that gave EPA the power and responsibility to regulate greenhouse gases.”
Who will now champion the rights of citizens to intervene? Likely not a justice who follows in Nino Scalia’s footsteps. The Founders gave us the Bill of Rights, spelling out limits to government, but efforts to limit government’s rights to foul the air and wreck God’s earth were nearly 200 years in the future.
Ruth Bader Ginsburg championed the incremental expansion of rights, whether gender equality or LGBTQ rights, or the right of citizens on Maui to sue over pumping sewage into their groundwater. In the words of ex-EPA administrator Gina McCarthy, “She widened our vision of who we are, enlarged in law the values we share and raised, forever, the possibility of what we might become,”
The threat, in words of Joe Biden, is citizens will “lose their right to clean air and clean water.” Will a right-thinking Supreme Court be cognizant of that right? No words in the Constitution speak to it.