Ep. 94: Losing RBG

Episodes-Trump on Earth Podcast

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Ruth Bader Ginsburg was a feminist icon in the U.S., as one of the first women in many of the roles and rooms she found herself in over her life. Her death and the subsequent race by the Trump administration to confirm her successor will remake American law for decades, most notably by putting Roe v. Wade in jeopardy. But it could also remake environmental law.

On this episode, Reid Frazier examines what the loss of RBG could mean for the environment with Ellen Gilmer, senior legal reporter for Bloomberg Law.

But first, we take a look back at Ginsburg’s environmental legacy with Pam King and Jeremy Jacobs, reporters for E&E News who wrote in a recent article, “The passing of Supreme Court Justice Ruth Bader Ginsburg could shake the foundation of America's bedrock environmental laws, leaving a chasm on the bench where once sat an environmental champion.”

Listen to the full episode or read the transcript below:

Reid Frazier: Tell us about Ruth Bader Ginsburg's environmental legacy on the court. What sticks out to you?

Pam King: Of course, Justice Ginsburg is very well known for her advocacy for women's rights. But something that we explored over the weekend after her passing on Friday night was her environmental legacy. And the case that we highlighted was the 2000 case, Friends of the Earth Inc. v. Laidlaw Environmental Services Inc., which was a 7-2 ruling. Ginsburg wrote the majority opinion in that case, which dealt with pollution discharges into a South Carolina river. Ginsburg wrote for the majority that the case wasn't moot simply because the company in question had stopped polluting the waterway.

“Ginsburg…showed that she was receptive to the environmental arguments for why regulating pollution in such a way was important.”

But the key takeaway here was Ginsburg's broad view of environmentalists' standing to sue, which is a really important issue, and it can kill legal challenges in their early stages if a judge says that a party doesn't have the power to bring a lawsuit in the first place.

Justice Ginsburg found that Friends of the Earth, the environmental group in this case, had raised reasonable concerns about the pollution discharges and their impact on recreational, aesthetic and economic interests. Justice Scalia, actually a conservative on the court and a close friend of Ginsburg's, wrote the dissent in that case. He was not a supporter of environmental groups standing and wrote that Ginsburg had created a watered-down requirement. We also highlighted several other cases.

Jeremy Jacobs: Another notable case was one from 2014, EPA v. EME Homer City Generation. It was a case challenging an EPA program for air pollution that drifts across state lines, which is an extremely complicated thing to regulate. She overturned the lower court decision in a 6-2 ruling. That decision from the court below, the U.S. Court of Appeals for the District of Columbia Circuit, was actually written by Justice Kavanaugh when he was on that court. It's the only time that one of Kavanaugh’s opinions from that circuit court had been overturned. Ginsburg did it in some pretty colorful and brazen language that showed that she was receptive to the environmental arguments for why regulating pollution in such a way was important.

Reid Frazier: This was a case where Ginsberg and the rest of the court decided that the EPA could do more to regulate air pollution that goes across state lines like from Ohio to Pennsylvania or Pennsylvania and New York.

Jeremy Jacobs: Yes, that's right. It is particularly relevant in that part of the world you're in (Pennsylvania) where you have upward and downward states and sometimes you have states that are both upwind and downwind. So EPA has been trying to develop a regime to do that for decades. Multiple administrations have tried and it always winds up in court. The Ginsburg opinion in that case was really a landmark decision that gave EPA leeway to try to address that problem.

Reid Frazier: You guys talked to a number of legal scholars and attorneys that represent various parties that are often in these cases. Jeremy, what were some of the things that stood out about what people told you about Ruth Bader Ginsburg?

Jeremy Jacobs: I think there are a couple of themes that came up when people looked at her legacy from an environmental lens. First is reverence, across the board, no matter where you are on the political spectrum, there is a deep respect and reverence for everything that she did in her life.

“There isn't really a voice on the court that looks at these cases from less of a regulatory or technocratic viewpoint than an environmental viewpoint.”

But in the environmental realm, there's kind of a couple of things that shone through. One is that she was receptive to the environmental impacts and public health impacts that came up through litigation. So you had some scholars saying that with her leaving the court, one of her legacies is that's not necessarily there anymore. There isn't really a voice on the court that looks at these cases from less of a regulatory or technocratic viewpoint than an environmental viewpoint. That's something that's now kind of a big hole on the court. Obviously, we'll see who her successor is. I would say there's definitely concern among environmental groups and administrative law and legal scholars because of that.

Reid Frazier: Pamela, what about you? What stuck out when you talk to people about RBG's legacy?

Pam King: Justice Ginsburg was incredibly devoted to her job. I would note that she was a reliable vote for environmental interests in cases generally, and really favored expansive readings of not just the Clean Air Act, but also the Clean Water Act. She was a key vote in many of those cases for more oversight of waterways, streams, wetlands across the country.

Reid Frazier: Ginsburg also wrote an opinion in something called American Electric Power. Can you talk to me about that?

Pam King: Justice Ginsburg led the unanimous opinion in that case that said states and private entities couldn't use federal common law to sue companies for greenhouse gas emissions. But she emphasized the court's earlier ruling in Massachusetts v. EPA in which she was in the majority. That said, the government could offer relief to the climate problem.

The case is interesting because cities and states are launching similar attempts right now to sue oil and gas companies over their contributions to climate change and those cases are moving forward in state court, however. They're not trying to use federal common law to make their complaints. There's actually one petition pending before the Supreme Court this term that asks the court to find that Baltimore's climate case belongs in federal court instead of state court. But so far, the courts have largely said that those cases belong in state venues. We still don't know what the state courts are going to say about those cases.

Reid Frazier: Do you know how Justice Ginsburg informed herself about environmental issues? How did she keep up?

Pam King: The only thing I can say is that my recollection from my time sitting in on environmental cases at the court, back when we could go in person, was that Justice Ginsburg was often out in front of the questioning with sharp and insightful questions that showed that she had done a really close read of the briefs in the case.

Jeremy Jacobs: One person that watches the court really closely mentioned to us that she often asked the first questions in environmental cases. Her questions often shape the way the case is decided. That shows her influence, I think.

Pam King: A huge case from last term was the Atlantic Coast Natural Gas Pipeline case. And one of the Supreme Court artists drew this really amazing photo of the justices hiking the Appalachian Trail, which is quite comical to imagine them doing that in their Supreme Court getups.

That was a case about whether the Atlantic Coast natural gas pipeline could cross beneath the Appalachian Trail. It's one that we had tracked for quite a while at E&E. And actually, that one was pretty interesting with respect to how Ginsburg came down on the case. She joined a 7-2 majority that said the pipeline could cross beneath the trail. And that was a rare vote for her in favor of industry interests. But overall, the impact of that ruling was pretty limited. And the project has since been canceled.

Reid Frazier: Did you find that her views or opinions on environmental cases evolved over time?

Pam King: I didn't find that her views had evolved over the years. It seemed like she was pretty consistently siding with environmental interests, which some of my sources were saying to me over the weekend was very consistent with her thinking that the little guy should have a voice in court and, in this case, it was the environmentalists.

Jeremy Jacobs: One other thing about the void that she leaves on the court: The court decides what cases they are going to hear. It takes four votes to take up the case and hear it. If Trump is successful in choosing her successor, there won't be four court votes on the liberal side. It just makes it that much harder for environmental interests to get their cases to the court, let alone succeed if they're taken up. It'll have an impact in that respect as well.

Reid Frazier: So that would be yet another kind of major shift that the court is about to undergo?

Pam King: Yes, it is. I wrote yesterday about what this term is going to bring. Of course, the question of whether environmental cases would even be granted was a big one. So far on the calendar for next term, we've only got a couple environmental cases. But in the terms to come, especially depending what happens with the election, challenges to President Trump's environmental rollbacks could eventually come to the high court.

“It represents kind of a foundational shift in how environmental law will be interpreted and how it will play out in court going forward.”

If Biden wins, we could see him attempt to walk back some of those rollbacks and those could eventually reach the Supreme Court. Court watchers are just really looking to see here whether President Trump is successful in putting a third justice on the court because it does seem like anyone he picks probably would not be in favor of increased environmental regulations and might strike down a challenge to a Trump rollback or could strike down a stronger environmental policy introduced by a potential Biden administration. So there's a lot to watch here.

Jeremy Jacobs: What we were saying about what cases get taken up and how receptive courts are to pro-environment arguments or rulings -- it trickles all the way down because if you're an appeals court judge, you don't want to issue a ruling that's going to get reversed by the Supreme Court. It's a badge of dishonor, so to speak. So that's going to be in the back of their mind when court of appeals judges are considering cases and it goes all the way down. It represents kind of a foundational shift, I think, in how environmental law will be interpreted and how it will play out in court going forward.

Pam King: Not to mention that Trump has appointed now more than 200 judges to the lower court. So a shift has already happened.

Pamela King is an editor at E&E News. Jeremy Jacobs is a reporter there.

The Supreme Court justices hiking the Appalachian Trail as depicted by courtroom artist, Art Lien.

It appears that President Trump may have enough votes in the Senate to confirm a new Supreme Court justice of his choosing before Election Day. That means the court's balance would tip from a 5 to 4 advantage for conservatives to 6 to 3. What would this majority mean for the environment? To find out, we talked with Ellen Gilmer, senior legal reporter for Bloomberg Law.

Reid Frazier: We already have a 5 to 4 conservative majority on the court. What are the big ways that a 6 to 3 majority would impact the environment?

Ellen Gilmer: It could affect a lot of things. And I think the main way we would see an impact on environmental law is actually through administrative law cases. Those are cases that deal with regulations in general, whether they have to do with the environment or not. The more that this kind of regulatory law changes, the more impact it has on environmental issues.

So if we see a court that is pretty skeptical of various agencies' power to do regulations, to do certain types of regulations, then we're going to see that have ripple effects on environmental rules.

Reid Frazier: Does this mean if somebody sues the EPA for not following through on a regulation or the Clean Air Act or something like that, is that what we're talking about?

Ellen Gilmer: Totally. A great example would be if the EPA, under a future Democratic administration, crafted some new climate regulations under the Clean Air Act. The Supreme Court, depending on who's on the bench, a more conservative court would probably be more skeptical about the EPA's power to use the Clean Air Act to address climate issues. They might say, ‘hey, we think the Clean Air Act is more about conventional air pollutants. This is a step too far beyond what Congress intended.’ That's the kind of dynamic that we expect to see on a more conservative court. We don't have a crystal ball, so we don't know exactly how these kind of cases would go. But that's something that environmental litigants would be worried about.

Reid Frazier: One theme we've been tracking for the last four years or so is, Obama created several big environmental regulations, many of them crafted towards climate. The most famous case is probably the Clean Power Plan. Trump has rolled those back. Those cases are now all in court. Are these cases that a future conservative majority would have more of a likelihood of going with the rollbacks?

Ellen Gilmer: It's definitely possible. Something that we've seen on the court previously in the past couple of years is Chief Justice Roberts acting as a swing vote sometimes. That came up in a couple of really interesting cases involving the federal government's rationale for its actions.

There were a couple cases that listeners might remember dealing with the census citizen citizenship question last year. Then this year, there was the DACA immigration case. In both of those cases, Chief Justice Roberts wrote the majority opinion and was really that kind of critical vote, siding with the traditionally liberal bloc of the court in saying neither these actions fly because the agencies involved didn't give a reasoned explanation for what they were doing.

That's exactly the kind of standard that's going to come up in future deregulatory cases if cases about water jurisdiction or power plant regulations or methane regulations reach the Supreme Court.

Reid Frazier: The Clean Power Plan was a historic step forward for climate activists in terms of regulating carbon emissions. But if you kind of look at what scientists are saying about climate change, it's not a permanent solution to climate change. If anything, it's a first step. What if in a Biden presidency or some future Democratic presidency, there is a version of a carbon tax or Green New Deal carbon legislation? Is it a possibility that a 6 to 3 Supreme Court could simply block or stymie any efforts to really deal with climate change?

Ellen Gilmer: It's definitely a possibility. It depends on how creative a future Democratic administration is in crafting a new regulation and under what power. If they're crafting a new regulation under the Clean Air Act, they're going to have great lawyers working on it. They're going to find a great way to justify what they're doing.

“If you had five justices on the court who are willing to revisit that, then you could see Massachusetts v. EPA being struck down or being narrowed in some way.”

But there are also going to be great lawyers on the other side saying this is beyond what the Clean Air Act is intended for. That's, again, that argument that we think a more conservative Supreme Court might be pretty receptive to.

The more ambitious the action, that might mean the more creative you have to get to do it. The more creative you have to get to do it, the more vulnerable something is in court.

The other kind of question mark, though, is whether Congress takes action and changes anything. Congress obviously has tons of power to give federal agencies more authority to do X, Y and Z to address climate change. That would really be the thing that that would give an agency the most legal cover to take more creative climate action.

Reid Frazier: One big decision that this is bringing up for me is something called Massachusetts v. EPA, which correct me if I'm wrong, Ellen, in which the court decided that climate-changing emissions qualified under the Clean Air Act as something that the EPA had to deal with. Is it possible that we could see the Supreme Court essentially go back on that decision?

Ellen Gilmer: Massachusetts v. EPA said if EPA determines that carbon dioxide or other greenhouse gases are pollutants, then it's required to take action under the Clean Air Act. We could see that revisited.

“So if that case ends up going to the Supreme Court, that could give the Supreme Court a foothold to look at this climate issue more broadly.”

The EPA, under the Obama administration, had the Clean Power Plan to cut emissions from the power sector. The Trump administration replaced the Clean Power Plan with the Affordable Clean Energy Rule, arguing in part that they were bound under the Clean Air Act to only address a very narrow set of emissions issues from power plants and not to look at the whole power sector. So if that case ends up going to the Supreme Court, that could give the Supreme Court a foothold to look at this climate issue more broadly.

There are other cases that could push that question up to the Supreme Court. First of all, the Supreme Court would have to decide it wanted to hear the case. It doesn't always grant every case that it gets a petition on. In fact, it denies most of them.

But if it took an interest in that issue and you had five justices on the court who are willing to revisit that, then you could see Massachusetts v. EPA being struck down or being narrowed in some way. That, again, would turn the spotlight back on Congress in terms of climate action, because then it would be up to Congress to draft some new legislation and make sure that some agency had the authority to do this.

Reid Frazier: We don't know who the nominee will be going forward (as of 9/24/2020). The name of Amy Coney Barrett, who's a conservative judge, has been mentioned a lot. As a legal reporter, how will you interrogate their record? What will you look for to see what kind of justice they would be?

Ellen Gilmer: The first thing that I look at when I'm looking at any judicial nominee is obviously their environmental record if they have one. The names that are being tossed around right now, they don't have a big record in environmental issues.

So the next thing you look at is administrative law. That's all the regulatory issues that we talked about. We see if they have a big record on regulatory issues, did they tend to be skeptical of agency power? Do they tend to want to defer to an agency's interpretation of the law? Or do they think that agencies don't deserve deference on their interpretations of law? That's a big question to look at.

I also look at what their views are on precedent. Lower court judges aren't going around overturning precedent, because they don't have power to do that. So you look at scholarly writings to try to get a sense of how they feel about precedent and whether, if they were appointed to the Supreme Court, they would have a lot of qualms about overturning precedent.

Chief Justice Roberts is very uncomfortable with overturning precedent, and he likes change to happen very, very slowly. But not every conservative judge feels that way. We'll look at the new nominees to see if they have writings or any opinions that suggest how they feel in that regard.

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