A Time To Reflect: Justice Ruth Bader Ginsburg's Impact On Environmental Law
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THE BE
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WWW. NYLJ.COM
VOLUME 265—NO. 26 WEDNESDAY, MARCH 17, 2021
PERSPECTIVE
A Time To Reflect: Justice Ruth Bader Ginsburg’s
Impact On Environmental Law
BY HEIDI FRIEDMAN AND TASHA MIRACLE
A
s we begin considering the cleanup laws struck a fascinating
judicial nominations Presi- balance between the practical and
dent Biden will make and how the idealistic.
Photo: Photo: Carmen Natale/ALM
they could impact decisions The Clean Air Act and Climate
about environmental law and climate Change: Supporting the Federal
change, it is worth taking a moment Government’s Authority To Regu-
to reflect on the late Justice Ruth late. Climate change is very much
U.S. Supreme Court Justice Ruth Bader Ginsburg
Bader Ginsburg’s environmental leg- at the forefront of the Biden admin- speaks at New York Law School.
acy and the indelible mark she left istration’s priorities, and Ginsburg
on the field. Although Ginsburg was helped to build the foundation for plants. Although many criticized this
known primarily for her devotion to federal climate change regulation. In decision as foreclosing the oppor-
advancing gender parity and social 2007 she was part of a five-justice tunity for states and individuals to
equality, she also played a critical majority in Massachusetts v. EPA sue power companies over green-
role in many significant environmen- that ruled the Clean Air Act gives house gases under federal common
tal decisions. Despite the fact that the U.S. Environmental Protection law (which is interesting, given her
many viewed Ginsburg as a liberal, Agency (EPA) not only the authority support of Massachusetts’ stand-
she actually had a pro-business rep- to regulate greenhouse gases from ing to sue EPA in Massachusetts v.
utation (which is one of the reasons automobile tailpipes, but essentially EPA), it also demonstrates Ginsburg’s
she was so easily confirmed by a a mandate to do so. That ruling led nuanced approach to interpreting
vote of 96-3). While she retained this directly to the Obama administration environmental laws and differen-
reputation throughout her career as in 2009 beginning to regulate carbon tiating between states’ rights and
a justice, she approached environ- dioxide emitted from cars and trucks the federal government’s under the
mental law in a nuanced way, often for the first time at the federal level. Clean Air Act. The opinion confirms
prioritizing the environment when Then, perhaps more significantly, her deference to the environmental
interpreting the laws or regula- Ginsburg authored the 2011 unani- statutory rights Congress created
tions before the court. Ginsburg’s mous opinion in AEP v. Connecticut, and Ginsburg’s practical approach
environmental jurisprudence on holding that the Clean Air Act dis- to solving environmental issues
the Clean Air Act, Clean Water Act, places common law rights to sue impacting individuals and businesses
and the nation’s hazardous waste over greenhouse gases from power alike.
WEDNESDAY, MARCH 17, 2021 Prior to these landmark climate a construction permit under the change opinions, in 2001 Ginsburg Clean Air Act if EPA determines the joined Justice Scalia’s unanimous state acted unreasonably in issuing Whitman v. American Trucking the permit. This decision affirmed Associations opinion holding that EPA’s significant authority to over- the Clean Air Act did not allow rule state decisions regarding what EPA to consider implementation constitutes “best available control- HEIDI FRIEDMAN TASHA MIRACLE costs in setting national ambient ling technology” for operating facili- air quality standards (NAAQS) ties in their jurisdiction. Both of of the U.S. The expansive defini- and confirming EPA’s authority to these opinions demonstrate Gins- tion of federally regulated waters revise the Act’s ozone standards burg’s commitment to ensuring the promoted in both cases perhaps regulations as required to protect Clean Air Act lived up to what she served as fodder for President public health (by upholding Con- viewed as its intended purposes Obama’s comprehensive version of gress’ delegation of quasi-legisla- and making sure the federal gov- the Waters of the U.S. Rule, the 2015 tive powers to EPA on this issue). ernment has ultimate authority to Clean Water Rule (which may be at NAAQS are viewed as the primary enforce it. least partially revived as President ambient air quality standards, and Biden attempts to reverse Presi- the court’s decision was an impor- dent Trump’s Navigable Waters tant step forward for Clean Air Act Ginsburg’s environmental Protection Rule, and which may policy and its impact on public jurisprudence on the Clean Air live to see another day in court as health measures. Act, Clean Water Act, and the a result). Ginsburg also authored the 2014 nation’s hazardous waste cleanup Ginsburg also joined the land- EPA v. EME Homer City Generation laws struck a fascinating balance mark 2018 majority opinion (6-3) decision (6-2), in which the court between the practical and the in County of Maui, Hawaii v. Hawaii upheld the Obama administration’s idealistic. Wildlife Fund, holding that discharg- efforts to regulate air pollution that es to groundwater viewed as the drifts across state lines through The Clean Water Act: Provid- “functional equivalent” of a direct the “Transport Rule” (overturning ing Broad Protection for Waters discharge to Waters of the U.S. are a D.C. Circuit Court opinion writ- of the United States. Ginsburg’s protected by the Clean Water Act ten by now-Justice Kavanaugh), most liberal environmental deci- and the federal government. finding that that the Clean Air Act sions may be those relating to the Ginsburg’s most notable Clean supports EPA’s contention that if a Clean Water Act. She joined the Water Act ruling, and perhaps her state implementation plan is deter- dissent in Solid Waste Agency of most significant environmental mined to be insufficient, then EPA Northern Cook County v. U.S. Army decision, is the majority opinion has an absolute mandate to create Corps, arguing for a very broad she authored in the 2000 Friends and enforce a federal implemen- interpretation of Waters of the U.S. of the Earth v. Laidlaw Environ- tation plan. Ginsburg also wrote (the waters regulated by the federal mental decision (7-2). In Friends the 2003 majority opinion (5-4) in government), and Justice Stevens’ of the Earth, the court held that a Alaska Department of Conserva- minority opinion in Rapanos v. U.S., Clean Water Act citizen suit could tion v. EPA, concluding that EPA which likewise argued for sweep- be maintained for an NPDES vio- could trump a state’s issuance of ing federal jurisdiction over Waters lation against an entity that had
WEDNESDAY, MARCH 17, 2021
since come into compliance with Similarly, in 2009 Ginsburg penned support for climate change regu-
its permit. Ginsburg explained a dissenting opinion in Burlington lation and citizen groups’ ability
that the current state of compli- Northern, arguing for an incredibly to enforce environmental laws.
ance did not moot the penalties broad definition of “arranger” liabil- You can expect that the Supreme
Friends of the Earth sought for past ity. She contended that if a com- Court may be asked to revisit some
violations, which were intended to pany knew that some amount of its of these key findings in the near
prevent the company from violat- product (not even waste) would be future, especially with regard to
ing its permit in the future. One spilled during transport and deliv- the Clean Water Act and climate
of the most impactful portions of ery and that it had some control change; yet the court will be forced
her opinion confirmed that Friends over the means of such transport to contend with Ginsburg’s envi-
of the Earth had standing to sue and delivery, the company should ronmental legacy before they can
on behalf of its members because be considered an arranger under attempt to shift major tenets of
they had “reasonable concerns” CERCLA and liable for a portion of environmental law.
about the discharges impacting the cleanup costs associated with The next time you see that lace
their “recreational, aesthetic, and its spilled product. While these collar, think about Ginsburg’s
economic interests.” This rul- dissents have not modified CER- impact on environmental law in
ing established broad support CLA’s application, they highlight addition to the rest of her incred-
for environmental groups’ stand- Ginsburg’s desire to ensure envi- ible legacy.
ing to sue in citizen suits, open- ronmental statutes lived up to the
ing the gateway for these suits purposes for which she felt they HEIDI FRIEDMAN is a partner in Thompson
under a variety of regulatory were enacted. She also believed Hine’s environmental and product liabil-
schemes. that “[d]issents speak to a future ity practice groups. TASHA MIRACLE is an
CERCLA: Interesting Dissents age … So the dissenter’s hope is associate in the environmental practice.
That Would Fur ther Broaden they are writing not for today, but
Liability. Ginsburg also present- for tomorrow.” It will be interest-
ed a broad viewpoint of liability ing to see if there is any future
for cleanup costs in some key shift in this direction for CERCLA
Comprehensive Environmental as Ginsburg hoped, but so far,
Response, Compensation, and while CERCLA remains an incred-
Liability Act (CERCLA) decisions. ibly broad liability-imposing and
She authored a dissenting opinion cleanup statute, it has not reached
in the 2004 Cooper Industries v. Avi- the level Ginsburg envisioned over
all decision, explaining that the 15 years ago.
Supreme Court’s prior Key Tronic Ginsburg’s Legacy and Its
decision stands for the proposition Potential Impact on the Future of
that CERCLA contains an implied Environmental Law. During Gins-
right of contribution in §107 (typi- burg’s 27-year tenure on the high-
cally known as the cost recovery est court, she issued and joined
provision), a position that would decisions that are foundational to
allow the statute to support even the application of the Clean Air Act Reprinted with permission from the March 17, 2021 edition of the NEW YORK
LAW JOURNAL © 2021 ALM Media Properties, LLC. All rights reserved.
Further duplication without permission is prohibited. For information, contact
broader recovery of cleanup costs. and Clean Water Act and provided 877-256-2472 or reprints@alm.com. # NYLJ-03182021-484988You can also read
