Known for her record on women’s and civil rights, Justice Ginsburg also leaves an environmental legacy on the Supreme Court

  • Susan Phillips

Justice Ruth Bader Ginsburg will be the first woman to lie in state at the U.S. Capitol on Friday. While many are mourning the late Supreme Court Justice as a feminist champion, Ginsburg also leaves a strong legacy of opinions written to uphold environmental protections.

“As much as people are talking about women’s rights and civil rights, environmental protection is very much in the balance at the Supreme Court,” said Delaware Riverkeeper Network director Maya van Rossum.

“I am very concerned that we are going to see a concerted effort at the highest level in the federal courts to roll back environmental protections, which would have a devastating effect on people’s lives and health.”

The Supreme Court is scheduled to hear several important environmental cases addressing climate change, construction of a border wall, and interstate water wars. The court could also take up New Jersey’s case against the PennEast pipeline company.

A year ago, a federal appeals court blocked PennEast pipeline company from condemning state-owned land for its proposed 116-mile long line that would ship Marcellus Shale gas from northeast Pennsylvania to New Jersey. The Third Circuit Court of Appeals sided with New Jersey, ruling that condemning public land violates the 11th Amendment of the Constitution.

New Jersey Attorney General Gurbir Grewal said the state-owned properties are open space preserved for recreation, conservation and agriculture and should not be used to ship natural gas. Grewal argued the 11th Amendment grants states immunity from eminent domain takings by private entities. PennEast appealed the ruling, and in June, the Supreme Court asked for further briefs.

One of the often cited decisions written by Ginsburg for the majority is Friends of the Earth v. Laidlaw Environmental Services, which established the rights of citizens, or organizations who represent them, to sue in order to force regulators to enforce violations of federal environmental rules like the Clean Water Act.

“That case holds that citizens who express concerns about values, aesthetics, or health related activities can get into court to sue those who are infringing on those rights,” said Charley McPhedran, a staff attorney at Earth Justice.

The case revolved around a waste water treatment plant that had exceeded permit limits on mercury discharges into the North Tyger river in South Carolina. One of the issues was whether the group had “standing,” or the ability to bring the case in the first place. Ginsburg wrote that they did, not based on a personal injury per se, but on how the pollution hampered their use of the river.

“…the affidavits and testimony presented by FOE in this case assert that Laidlaw’s discharges, and the affiant members’ reasonable concerns about the effects of those discharges, directly affected those affiants’ recreational, aesthetic, and economic interests,” Ginsburg wrote.

McPhedran said the case “gives a workable metric to people like me who represent citizens and citizen groups.”

The Delaware Riverkeeper’s van Rossum says “standing” is a key issue.

“Litigation has been and is and will continue to be fundamentally important for environmental progress,” she said. “Sometimes it’s the only option we have.”

Van Rossum says in the mid-1990s, Delaware Riverkeeper successfully sued Pennsylvania, New Jersey and Delaware for lack of enforcement over a key part of the Clean Water Act, permits for pollution discharges into waterways known as NPDES or National Pollutant Discharge Elimination System.

“If we can’t have access to courts than all  industry has to do is convince the president, or the governor to back off,” she said. “And there can be a political decision to walk away from environmental  protection.”

In the Laidlaw case, Ginsburg also wrote that civil penalties against polluters were an important deterrent to future violations of environmental laws.

In a case closer to home, Ginsburg wrote the majority opinion in EPA v. EME Homer City Generation, a Pennsylvania coal plant. The case involves what is known as the “transport rule” or the “good neighbor provision,” where airborne pollutants that create smog travel from one state to the next. The EPA established a program that gave the states the ability to enforce pollution controls, but if the federal agency was unsatisfied, as it was in this instance, it would step in and set limits.

Supreme Court Justice Brett Kavanaugh, who at the time served on the D.C. Circuit, wrote the opinion that EPA needed to give the states another chance to control the pollution.

Justice Ginsburg wrote the opinion that overturned Kavanaugh’s decision, and upheld the EPA’s role.

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