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INSIGHT: RBG’s Everlasting Impact on Environmental Jurisprudence

Sept. 22, 2020, 8:00 AM

The center of gravity of Justice Ruth Bader Ginsburg’s fame is justifiably focused on her pioneering work both as a young attorney and later as a justice for gender equality. Ginsburg’s own career embodied the women’s liberation movement and she clearly inspired generations of women as well as men to follow her example.

What is less appreciated is the significant role that Justice Ginsburg played in environmental law on the high court, and how that record, in turn, reveals what made her such a great justice.

Ginsburg came to the court in 1993 with no particular reputation on environmental issues. She had never practiced environmental law as an attorney and while serving as a judge on the U.S. Court of Appeals for the D.C. Circuit, she displayed no particular affinity toward environmental protection. If anything, then-Judge Ginsburg enjoyed a straight-shooter, pro-business reputation. Business community support of her Supreme Court nomination partly explains why Ginsburg was so easily confirmed by the Senate, 96-3, notwithstanding her obvious liberal views on otherwise potentially controversial social issues such as abortion rights.

Integrity, Skill

Once on the court, however, Ginsburg quickly became an important vote in environmental cases. What is most telling about her environmental law record, however, is its underscoring of both her integrity and her extraordinary skills as a jurist. Most simply put, although Justice Ginsburg’s fame is understandably rooted in her championing gender equality, the justice’s greatest contributions were rooted not in her ideology but in her skills as one of the most talented lawyers ever to serve on the court.

Environmental advocates appearing before Ginsburg knew the justice was never a vote they could assume. Her vote always had to be earned. And the only way to earn that vote would be the force and persuasiveness of their legal arguments.

The justice’s vote would not be decided by whatever sympathy she might privately harbor for the environmental protection policies they were promoting. Ginsburg was a progressive liberal, to be sure, but she was first and foremost an outstanding lawyer who applied her extraordinarily analytic skills with rigor and precision to the legal issues before the court. Unlike some of her colleagues on the bench, she harbored no hostility or skepticism of environmental protection laws. She would give environmental advocates a fair shake but it would always be the merits of their legal arguments, not their policy arguments, that would decide her vote.

The result over 27 years of service on the court was a judicial record of enormous integrity that included many important cases applauded by environmentalists. On a closely-divided court, every vote counts, and Ginsburg supplied the decisive fifth vote in a large number of significant environmental victories. For instance, the justice’s vote in Massachusetts v. Environmental Protection Agency widely considered the most important environmental case ever decided by the court, made possible the court’s historic ruling in that case that the Environmental Protection Agency possesses authority under the Clean Air Act to regulate greenhouse gas emissions.

Ginsburg also authored many opinions of the court in significant cases that supported greater environmental protections. In two significant Clean Air Act cases, the justice wrote court opinions that rejected challenges to ambitious programs by the EPA to reduce air pollution: Ginsburg’s 2014 opinion in EPA v. EME Homer City Generation LP, upholding an innovative program to curb interstate air pollution, and her 2003 opinion Alaska Department of Conservation v. EPA, upholding the EPA’s insistence that the state of Alaska do more to limit air pollution. No doubt, however, Ginsburg’s most important opinion for the court in an environmental case was Friends of the Earth v. Laidlaw, decided in 2000, 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.

The justice also dissented in many significant cases in which environmentalists lost. Nor did she shy away from authoring powerful dissents that made clear precisely how the majority opinion was unpersuasive.

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. For example, in 2011, in American Electric Power v. Connecticut, Ginsburg authored the opinion of the court rejecting a major climate change lawsuit filed by a host of states and national environmental groups against the nation’s energy industry. Ginsburg might well have favored the policies promoted by that lawsuit and personally felt that the energy industry was at fault for the role it had played in causing climate change. But that was no matter—the plaintiffs legal arguments lacked merit and therefore their case should be dismissed.

Ginsburg’s influence on the nation’s environmental law was enormous. She decided cases before her with integrity and enormous skill. That is all anyone, including environmental advocates, can fairly expect. Ginsburg was a spectacular Supreme Court justice and will be greatly missed.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Richard Lazarus is a professor of law at Harvard Law School and the author of “The Rule of Five: Making Climate History in the Supreme Court” (Belknap Press 2020), which tells the behind-the-scenes story of the Supreme Court’s 2007 decision in Massachusetts v. EPA. He is the Howard and Katherine Aibel Professor of Law at Harvard, where he teaches environmental law, natural resources Law, Supreme Court advocacy, and torts.

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