A Time To Reflect: Justice Ruth Bader Ginsburg’s Impact on Environmental Law

As we begin considering the judicial nominations President Biden will make and how they could impact decisions about environmental law and climate change, it is worth taking a moment to reflect on the late Justice Ruth Bader Ginsburg’s environmental legacy and the indelible mark she left on the field. Although Ginsburg was known primarily for her devotion to advancing gender parity and social equality, she also played a critical role in many significant environmental decisions. Despite the fact that many viewed Ginsburg as a liberal, she actually had a pro-business reputation (which is one of the reasons she was so easily confirmed by a vote of 96-3). While she retained this reputation throughout her career as a justice, she approached environmental law in a nuanced way, often prioritizing the environment when interpreting the laws or regulations before the court. Ginsburg’s environmental jurisprudence on the Clean Air Act, Clean Water Act, and the nation’s hazardous waste cleanup laws struck a fascinating balance between the practical and the idealistic.

The Clean Air Act and Climate Change: Supporting the Federal Government’s Authority To Regulate. Climate change is very much at the forefront of the Biden administration’s priorities, and Ginsburg helped to build the foundation for federal climate change regulation. In 2007 she was part of a five-justice majority in Massachusetts v. EPA that ruled the Clean Air Act gives the U.S. Environmental Protection Agency (EPA) not only the authority to regulate greenhouse gases from automobile tailpipes, but essentially a mandate to do so. That ruling led directly to the Obama administration in 2009 beginning to regulate carbon dioxide emitted from cars and trucks for the first time at the federal level. Then, perhaps more significantly, Ginsburg authored the 2011 unanimous opinion in AEP v. Connecticut, holding that the Clean Air Act displaces common law rights to sue over greenhouse gases from power plants. Although many criticized this decision as foreclosing the opportunity for states and individuals to sue power companies over greenhouse gases under federal common law (which is interesting, given her support of Massachusetts’ standing to sue EPA in Massachusetts v. EPA), it also demonstrates Ginsburg’s nuanced approach to interpreting environmental laws and differentiating between states’ rights and the federal government’s under the Clean Air Act. The opinion confirms her deference to the environmental statutory rights Congress created and Ginsburg’s practical approach to solving environmental issues impacting individuals and businesses alike.