Justice Ginsburg’s Death Puts Supreme Court on Even Shakier Ground for Environmental Cases

Justice Ruth Bader Ginsburg March 15, 1933 – September 18, 2020        Photo: U.S. Supreme Court

With a 5-4 majority for conservatives on the Supreme Court, winning environmental cases was already an uphill battle, but at 6-3, such cases would be almost impossible to win.  Still, the loss of Justice Ruth Bader Ginsburg is much more than that — she was a rock-steady vote in favor of environmental protection and sympathetic on issues involving clean water and air. Ginsburg was in the majority in Massachusetts v. EPA, in which the Court held by a 5-4 that the federal government has the authority to regulate greenhouse gas emissions as “air pollutants’ under the Clean Air Act.  She was also a dissenter in two more recent cases in which the minority opinions supported a broad definition of federal jurisdictional under the Clean Water Act.

Why This Matters:  There are many challenges to President Trump’s rollbacks of environmental laws that are working their way to the Supreme Court.  Once there, the Court can effectively re-write those laws narrowing them considerably by upholding the Trump deregulatory position even if it is contrary to prior interpretations or other plausible interpretations of the statute itself.  That, in turn, will create harmful precedents that must be followed by lower courts, which could negatively impact environmental law for decades.

Environmental Leaders Mourn Ginsburg

Michael Brune, Sierra Club Executive Director said of Ginsburg, “As we mourn the loss of Justice Ginsburg, we should reflect on her words that ‘Real change, enduring change, happens one step at a time.  Those of us who strive to make change for good in this world — whether it be fighting for racial justice, reproductive rights, or for a livable future — must continue the fight in her honor. With her wisdom and her commitment to equal rights under the law, Justice Ginsburg helped make real, enduring change for millions so often cast into the shadows.”

U.S. Senator Tom Udall (D-N.M.) said in a statement, “Ruth Bader Ginsburg was a titan of justice. She was a trailblazing force who used her unmatched talents for immeasurable good. She is irreplaceable. She inspired us all, but her legacy shines especially bright for the countless women and girls across the nation and world who now proudly walk in her footsteps. Justice Ginsburg fought for fairness above all—for a nation that lives true to its principles—and she brought us ever closer to that ideal.”

NRDC President and CEO Gina McCarthy said of Ginsburg, “From her pathbreaking advocacy for gender equality to her relentless defense of democracy itself, Justice Ginsburg widened our vision of who we are, enlarged in law the values we share and raised, forever, the possibility of what we might become.  Through her expansive mind, sound temperament and unwavering judicial integrity, she plied the Constitution as a living instrument of American life, lending it meaning in the life of us all. We may not soon see her like again, but her judgment, her wisdom and her uncommonly good sense will live on in the precedents she set and the opinions she wrote. She was as much a force for justice when she dissented as when she prevailed.”

Earthjustice President Abigail Dillen said in a statement, “Justice Ruth Bader Ginsburg was an icon and an inspiration for all of us in the progressive legal community. Along with the terrible shock of this news, we feel an awful grief for the loss of her keen intellect, her moral authority, and the example she set for all of us who seek to realize the highest aspirations of our laws.”

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