How Ginsburg, and Her Absence, Affect the Environment

wherever you get your podcasts. Today, on Parts Pavilion, we'll be talking about the late Supreme Court Justice Ruth Bader Ginsburg, her sometimes overlooked environmental legacy and why she wasn't always guaranteed to side with environmentalists. Hello, and welcome back once again to Parts per Billion, the environmental podcast from Bloomberg Law. I'm your host, David Schultz. When you think of Ruth Bader Ginsburg, what's the first thing that comes to your mind.

If it's not that movie that came out about her a few years ago, then it's almost certainly gender equality. That was her signature issue during the nearly three decades she was on the Supreme Court. But you don't served that long on the court without encountering a whole host of other issues and she definitely made her mark on

environmental law. So today, after her death last week at the age of eighty seven, we're going to examine a few of the environmental cases Justice Ginsburg heard and also what her acts on the court could mean moving forward. We spoke with Ellen Gilmer, a reporter at Bloomberg Law who covers litigation in the courts. She says Ginsburg didn't just hear a few environmental cases here and there. She

was a key player in this area of the law. Yeah, I mean she has made a lot of really significant contributions to environmental law, of course, because you know, she is a Supreme Court justice, and all of them end up touching issues that are really important across various areas of law. So for Justice Ginsburg, we have this collection of really important cases that you know, where she authored

the majority opinion or she played a significant role. And the main one that people think of when they think of her contributions to environmental law is a case called laid law. And that's a case where after many years of the court kind of narrowing environmental standing, which means like what you have to show to get into court to bring an environmental case, she was known for really caring about standing and the procedure issues. That was something

that she was really really passionate about. That's true. And in this case, after the court had sort of narrowed environmental standing or made it a little bit more difficult over time for environmentalists or just like neighbors who are opposed or who are affected by some kind of pollution to come to court about it, Justice Ginsberg authored this really important opinion laid law that started to broaden that

out again. It was just a little bit more accommodating, made it not quite so difficult to get into court, and I think that was really one of her biggest legacies. And there were kind of layers of other legal issues within that case, so it's cited in legal briefs when you're talking about other things like whether a case is moot, but that environmental standing issue was really critical. Yeah, let's talk about another case, emy Homer. What was that case about?

That was one where she wrote the opinion and the majority and I get the sense it was it was pretty important too. It was really important and really interesting. A fun fact about that case. So this had to do with EPA's regulation, a regulation for cross state air pollution, which is like air pollution that drifts across state lines, right, And EPA had this pretty innovative approach for addressing that

and addressing like the pollution coming from upwind states. And the DC Circuit struck down the rule and that was a decision authored by then Judge Cavanaugh. Oh, I think we know where he is now. Yeah. So then it went up to the Supreme Court and in a majority opinion written by Justice s Ginsberg, Kavanaugh was reversed. It was his only time being reversed by the Supreme Court. So it's a really significant case in a lot of ways. I wonder if he remembers that. I'm sure he remembers that.

I'm sure he remembers that. And so that program was salvaged by the Supreme Court and EPA is still using it today, and you know, it's kind of been through various stages of application and some adjustments, but it's a core program that EPA uses to address cross state air pollution.

And I imagine that's a really big deal in the Northeast and in smaller states where you know, obviously there's no way that you can you know, let's say Rhode Island can't regulate the air pollution that's coming from any of its neighbors, you know, so that has to be a big deal out there, right, Yeah, it's a big deal for any kind of downwind state that's dealing with

big industrial facilities that are beyond their regulatory reach. So Justice Skinsburg was known as one of the sort of champions of liberal you know, judicial philosophies in the last few decades. She was, you know, appointed by President Clinton. But you know, we had an article on our site from Richard Lazarus, the environmental lawyer, who said that she wasn't a guaranteed vote for environmentalist, You had to really

earn her vote. Can you talk a little bit about that, and maybe about a time when she ruled against environmentalists on the court. Sure, and that's definitely true. All of these cases are that go up to the Supreme Court are very fact specific, and and Justice Ginsberg was always pretty eager to jump into the weeds of things, and and uh, that meant cases cases went out a lot of different ways. A really good example of of where she didn't side with environmentalists was a case called American

Electric Power. And in that case it had to do with states trying to sue energy companies over climate change using what's called federal common law. And what the court said it was a unanimous opinion. So it's not like Jessice Ginsburg was out on her own on this. But what the court said and the opinion she wrote, was that the states couldn't use federal common law in this way because the federal government was already regulating in this

space through the Clean Air Act. So that kind of displaced this legal tool that otherwise would have been available. Let's break that down a little bit more. So it sounds like what she was saying, and I guess what the other eight justices were saying was that, you know, if a state is harmed by climate change and that harm is caused by another state, they can't sue just based on you know, regular kind of law. Am I getting that right? It has to be a Clean Air

Act issue. Well, so what we're talking about here isn't state versus states. It's like states versus industry. But otherwise, yeah, it's basically that, you know, the federal government has a whole agency and a whole regulatory program that's designed to address this issue, and therefore you can't you know, allege under federal law that you know, this industry is causing a nuisance or something like that. Speaking of climate change, we're going to get into how cases around climate change

may be decided differently without Ginsburg on the court. But first we're going to take a very short break. Stay with us. We are talking today with Bloomberg laws Ellen Gilmour about the legacy of Justice Ruth Bader Ginsburg when it comes to environmental law. I asked Ellen whether it's possible that without Ginsburg on the court, Massachusetts v. EPA could be overturned. One of the cases that Justice Ginsberg

ruled on was Massachusetts v. EPA. In that article that we referenced earlier, Richard Lazarus called that the most important environmental case that has ever come before the Supreme Court. She ruled on that. What is the future of that case now that she is off the court. Could Massachusetts v. EPA be overturned? It's possible. It's possible it could be overturned someday. What's more likely is that it could be narrowed,

kind of chipped away at. And actually, let's before we talk about that, let's talk about what the case actually was. This was a case where the State of Massachusetts was suing the Bush administration, the George W. Bush administration, saying it had to regulate climate change right, and they won. And what the court said was kind of two key points. First was that these states had standing to sue, So that's a big deal that they could even sue over

climate change. And second, and this is the part that's most remembered that you know, the court said, if EPA determines that greenhouse gases, you know, endanger the public and you know, human health and the environment, then the Clean Air Act requires it to regulate. So that is the core of that's the foundation of all of EPA's climate regulations under the Clean Air Act. It's been it's been a target for some in conservative legal circles for a long time because they think the Clean Air Act was

not designed to address greenhouse gas emission. Certainly greenhouse gas emissions weren't in mind when the Clean Air Act was drafted, and so they don't think it should be used in that way. So if the right case makes it back up to the Supreme Court, that presents those questions squarely like for the Court to address again that gives the

Court an opportunity to revisit Massachusetts v. Epa. It's certainly possible that, you know, a more conservative court would overturn it, and like I said before, it's more possible that it's more likely that they would just kind of narrow it.

That makes a lot of sense, and it does seem like that's in general the way that the Supreme Court has been operating in the last few decades, that they rarely overturn old cases, but they often chip away and narrow and kind of slowly rain them in, you know, if they they but it's it just seems rare that they come out and say, like that case that we decided a fifty years ago, that's that's no longer law, right, And they definitely do sometimes, but they try to be

careful about it. That's a key principle of the Supreme Court, as steredecisis, which is kind of respecting precedent, and the Chief Justice in particular cares a lot about that and likes for change to happen very slowly. But you know, if with six, you know, conservative leaning justices on the Court, that whole dynamic could change. So I wouldn't expect to see dramatic changes right away, but we could certainly see more incremental changes if those cases make it up there. Finally,

let's talk about this term. At the moment, we have eight Supreme Court justices, so we could potentially have some four or four ties. Are there any cases that are coming up this term environmental cases, especially in the first part of the term, that could be affected by Justice

Skinsburg no longer being on the court. Nothing major. The first actually in the first day of oral argument, there's an environmental case that has to do with water rights Texas City, New Mexico, and it's not expected to split on ideological lines, so no big impact there. There's another case in November that has to do with FOYA, but

it affects Endangered Species Act records. It wasn't you know, it's a little unclear how that case is going to shake out because it's really FOYA law and not environmental law. It wasn't expected that, you know, Justice Ginsberg would have provided the pivotal vote on that, so likely no big change there. And it's really a light environmental docket so far for this term. The justices are going to add more cases to their calendar and it might be a

little bit harder. I mean, they might just grant fewer cases because it takes four votes for the Supreme Court to grant cert on a case, to agree to hear a case, and you might not see them taking up quite as many cases as they had before until they have that full complement of nine justices. Yeah, and I wonder, I mean, there's no way for us to know, because what happens in the Supreme Court stays in the Supreme

Court often. But I do wonder if if there might be some cases that the conservative justices would have granted but now are going to hold off on granting because they think they might have a better chance of ruling the way that they want to rule once they get a new justice on the court. If there may be

some strategic grants or strategic denials there. It's possible, especially on issues where Chief Justice Roberts has been a little more leery of big changes, for example, on some administrative law issues, if you had a more conservative member of the Court added to the bench after a nomination process, then you could see maybe four of them getting together and saying like, now we really want to tackle deference, or now we really want to tackle non delegation doctrine.

These are a couple of issues that are really hot in administrative law circles and constitutional law circles. So that's possible knowing that they would have not have to think about, you know, the Chief Justice maybe defecting that, maybe they would be interested in taking those up. We'll see. And I also have to imagine that they if they can avoid it, they don't want a four four tie. I know they the Court really hates it when they take

a case. They do all the work, the clerks write the briefs, they hold oral arguments, and then they just come up with a four to four tie and then it's like it never happened. You know, they probably want to avoid that, right, Yeah, they definitely want to avoid

that it has happened. The last environmental case I can think of where that happened was a big tribal treaty rights case that affected fishing in the Pacific Northwest, the tribe's treaty right to fish, and it was a four to four tie because Justice Kennedy kind of at the last minute was like, oh shoot, I need to recuse myself from this case. Who So it ended up four to four and they upheld the decision below and it

was a big win for tribal treaty rights. So those are situations that are kind of rare and they like to avoid. There was another one that happened when there was before Justice Kavanaugh was confirmed. They heard a case that had to do with property rights called Nick and it had some impacts on environmental issues, kind of farther out,

ripple effects on environmental issues. And in that case they actually held or they called for additional briefing because they, you know, probably wanted to have that ninth justice on the bench to consider those issues. That's it for today's episode of Parts Pervillion. If you want more environmental news, check out our website Newstop Bloomberg environment dot com. That

website once again is Newstop Bloomberg Environment dot Com. Today's episode of Pars Rebellion was produced by myself and Josh Block. Pars Rebellion was created by Jessica Coombs and Rachel Dagel. The music for today's episode, It's a Message by Bizarre and Night Walk by Paolo County and Benoit Medrakowski. They were used under a Creative Commons license. Thanks everyone for listening those nine justices in Washington. They can be pretty hard to keep track up. That's where we come in.

I'm Jordan Ruben and I'm Kimberly Robinson. On our podcast Cases and Controversies, we give you a week by week accounting of the Supreme Court, the filings, the arguments, the opinions, and much much more. So. Check in on Fridays with Cases and Controversies to find out what's coming up on the horizon at the Supreme Court. Download and subscribe wherever you get your podcasts.