Speaker 1: Hey there. I'm Kyle Trigstad, Politics editor for Bloomberg Government,
Speaker 1: and I'm Greg Gurou, Senior elections reporter for Bloomberg Government.
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Speaker 1: wherever you get your podcasts. Today, on Parts Pavilion, we'll
Speaker 1: be talking about the late Supreme Court Justice Ruth Bader Ginsburg,
Speaker 1: her sometimes overlooked environmental legacy and why she wasn't always
Speaker 1: guaranteed to side with environmentalists. Hello, and welcome back once
Speaker 1: again to Parts per Billion, the environmental podcast from Bloomberg Law.
Speaker 1: I'm your host, David Schultz. When you think of Ruth
Speaker 1: Bader Ginsburg, what's the first thing that comes to your mind.
Speaker 1: If it's not that movie that came out about her
Speaker 1: a few years ago, then it's almost certainly gender equality.
Speaker 1: That was her signature issue during the nearly three decades
Speaker 1: she was on the Supreme Court. But you don't served
Speaker 1: that long on the court without encountering a whole host
Speaker 1: of other issues and she definitely made her mark on
Speaker 1: environmental law. So today, after her death last week at
Speaker 1: the age of eighty seven, we're going to examine a
Speaker 1: few of the environmental cases Justice Ginsburg heard and also
Speaker 1: what her acts on the court could mean moving forward.
Speaker 1: We spoke with Ellen Gilmer, a reporter at Bloomberg Law
Speaker 1: who covers litigation in the courts. She says Ginsburg didn't
Speaker 1: just hear a few environmental cases here and there. She
Speaker 1: was a key player in this area of the law. Yeah,
Speaker 1: I mean she has made a lot of really significant
Speaker 1: contributions to environmental law, of course, because you know, she
Speaker 1: is a Supreme Court justice, and all of them end
Speaker 1: up touching issues that are really important across various areas
Speaker 1: of law. So for Justice Ginsburg, we have this collection
Speaker 1: of really important cases that you know, where she authored
Speaker 1: the majority opinion or she played a significant role. And
Speaker 1: the main one that people think of when they think
Speaker 1: of her contributions to environmental law is a case called
Speaker 1: laid law. And that's a case where after many years
Speaker 1: of the court kind of narrowing environmental standing, which means
Speaker 1: like what you have to show to get into court
Speaker 1: to bring an environmental case, she was known for really
Speaker 1: caring about standing and the procedure issues. That was something
Speaker 1: that she was really really passionate about. That's true. And
Speaker 1: in this case, after the court had sort of narrowed
Speaker 1: environmental standing or made it a little bit more difficult
Speaker 1: over time for environmentalists or just like neighbors who are
Speaker 1: opposed or who are affected by some kind of pollution
Speaker 1: to come to court about it, Justice Ginsberg authored this
Speaker 1: really important opinion laid law that started to broaden that
Speaker 1: out again. It was just a little bit more accommodating,
Speaker 1: made it not quite so difficult to get into court,
Speaker 1: and I think that was really one of her biggest legacies.
Speaker 1: And there were kind of layers of other legal issues
Speaker 1: within that case, so it's cited in legal briefs when
Speaker 1: you're talking about other things like whether a case is moot,
Speaker 1: but that environmental standing issue was really critical. Yeah, let's
Speaker 1: talk about another case, emy Homer. What was that case about?
Speaker 1: That was one where she wrote the opinion and the
Speaker 1: majority and I get the sense it was it was
Speaker 1: pretty important too. It was really important and really interesting.
Speaker 1: A fun fact about that case. So this had to
Speaker 1: do with EPA's regulation, a regulation for cross state air pollution,
Speaker 1: which is like air pollution that drifts across state lines, right,
Speaker 1: And EPA had this pretty innovative approach for addressing that
Speaker 1: and addressing like the pollution coming from upwind states. And
Speaker 1: the DC Circuit struck down the rule and that was
Speaker 1: a decision authored by then Judge Cavanaugh. Oh, I think
Speaker 1: we know where he is now. Yeah. So then it
Speaker 1: went up to the Supreme Court and in a majority
Speaker 1: opinion written by Justice s Ginsberg, Kavanaugh was reversed. It
Speaker 1: was his only time being reversed by the Supreme Court.
Speaker 1: So it's a really significant case in a lot of ways.
Speaker 1: I wonder if he remembers that. I'm sure he remembers that.
Speaker 1: I'm sure he remembers that. And so that program was
Speaker 1: salvaged by the Supreme Court and EPA is still using
Speaker 1: it today, and you know, it's kind of been through
Speaker 1: various stages of application and some adjustments, but it's a
Speaker 1: core program that EPA uses to address cross state air pollution.
Speaker 1: And I imagine that's a really big deal in the
Speaker 1: Northeast and in smaller states where you know, obviously there's
Speaker 1: no way that you can you know, let's say Rhode
Speaker 1: Island can't regulate the air pollution that's coming from any
Speaker 1: of its neighbors, you know, so that has to be
Speaker 1: a big deal out there, right, Yeah, it's a big
Speaker 1: deal for any kind of downwind state that's dealing with
Speaker 1: big industrial facilities that are beyond their regulatory reach. So
Speaker 1: Justice Skinsburg was known as one of the sort of
Speaker 1: champions of liberal you know, judicial philosophies in the last
Speaker 1: few decades. She was, you know, appointed by President Clinton.
Speaker 1: But you know, we had an article on our site
Speaker 1: from Richard Lazarus, the environmental lawyer, who said that she
Speaker 1: wasn't a guaranteed vote for environmentalist, You had to really
Speaker 1: earn her vote. Can you talk a little bit about that,
Speaker 1: and maybe about a time when she ruled against environmentalists
Speaker 1: on the court. Sure, and that's definitely true. All of
Speaker 1: these cases are that go up to the Supreme Court
Speaker 1: are very fact specific, and and Justice Ginsberg was always
Speaker 1: pretty eager to jump into the weeds of things, and
Speaker 1: and uh, that meant cases cases went out a lot
Speaker 1: of different ways. A really good example of of where
Speaker 1: she didn't side with environmentalists was a case called American
Speaker 1: Electric Power. And in that case it had to do
Speaker 1: with states trying to sue energy companies over climate change
Speaker 1: using what's called federal common law. And what the court
Speaker 1: said it was a unanimous opinion. So it's not like
Speaker 1: Jessice Ginsburg was out on her own on this. But
Speaker 1: what the court said and the opinion she wrote, was
Speaker 1: that the states couldn't use federal common law in this
Speaker 1: way because the federal government was already regulating in this
Speaker 1: space through the Clean Air Act. So that kind of
Speaker 1: displaced this legal tool that otherwise would have been available.
Speaker 1: Let's break that down a little bit more. So it
Speaker 1: sounds like what she was saying, and I guess what
Speaker 1: the other eight justices were saying was that, you know,
Speaker 1: if a state is harmed by climate change and that
Speaker 1: harm is caused by another state, they can't sue just
Speaker 1: based on you know, regular kind of law. Am I
Speaker 1: getting that right? It has to be a Clean Air
Speaker 1: Act issue. Well, so what we're talking about here isn't
Speaker 1: state versus states. It's like states versus industry. But otherwise, yeah,
Speaker 1: it's basically that, you know, the federal government has a
Speaker 1: whole agency and a whole regulatory program that's designed to
Speaker 1: address this issue, and therefore you can't you know, allege
Speaker 1: under federal law that you know, this industry is causing
Speaker 1: a nuisance or something like that. Speaking of climate change,
Speaker 1: we're going to get into how cases around climate change
Speaker 1: may be decided differently without Ginsburg on the court. But
Speaker 1: first we're going to take a very short break. Stay
Speaker 1: with us. We are talking today with Bloomberg laws Ellen
Speaker 1: Gilmour about the legacy of Justice Ruth Bader Ginsburg when
Speaker 1: it comes to environmental law. I asked Ellen whether it's
Speaker 1: possible that without Ginsburg on the court, Massachusetts v. EPA
Speaker 1: could be overturned. One of the cases that Justice Ginsberg
Speaker 1: ruled on was Massachusetts v. EPA. In that article that
Speaker 1: we referenced earlier, Richard Lazarus called that the most important
Speaker 1: environmental case that has ever come before the Supreme Court.
Speaker 1: She ruled on that. What is the future of that
Speaker 1: case now that she is off the court. Could Massachusetts v.
Speaker 1: EPA be overturned? It's possible. It's possible it could be
Speaker 1: overturned someday. What's more likely is that it could be narrowed,
Speaker 1: kind of chipped away at. And actually, let's before we
Speaker 1: talk about that, let's talk about what the case actually was.
Speaker 1: This was a case where the State of Massachusetts was
Speaker 1: suing the Bush administration, the George W. Bush administration, saying
Speaker 1: it had to regulate climate change right, and they won.
Speaker 1: And what the court said was kind of two key points.
Speaker 1: First was that these states had standing to sue, So
Speaker 1: that's a big deal that they could even sue over
Speaker 1: climate change. And second, and this is the part that's
Speaker 1: most remembered that you know, the court said, if EPA
Speaker 1: determines that greenhouse gases, you know, endanger the public and
Speaker 1: you know, human health and the environment, then the Clean
Speaker 1: Air Act requires it to regulate. So that is the
Speaker 1: core of that's the foundation of all of EPA's climate
Speaker 1: regulations under the Clean Air Act. It's been it's been
Speaker 1: a target for some in conservative legal circles for a
Speaker 1: long time because they think the Clean Air Act was
Speaker 1: not designed to address greenhouse gas emission. Certainly greenhouse gas
Speaker 1: emissions weren't in mind when the Clean Air Act was drafted,
Speaker 1: and so they don't think it should be used in
Speaker 1: that way. So if the right case makes it back
Speaker 1: up to the Supreme Court, that presents those questions squarely
Speaker 1: like for the Court to address again that gives the
Speaker 1: Court an opportunity to revisit Massachusetts v. Epa. It's certainly
Speaker 1: possible that, you know, a more conservative court would overturn it,
Speaker 1: and like I said before, it's more possible that it's
Speaker 1: more likely that they would just kind of narrow it.
Speaker 1: That makes a lot of sense, and it does seem
Speaker 1: like that's in general the way that the Supreme Court
Speaker 1: has been operating in the last few decades, that they
Speaker 1: rarely overturn old cases, but they often chip away and
Speaker 1: narrow and kind of slowly rain them in, you know,
Speaker 1: if they they but it's it just seems rare that
Speaker 1: they come out and say, like that case that we
Speaker 1: decided a fifty years ago, that's that's no longer law, right,
Speaker 1: And they definitely do sometimes, but they try to be
Speaker 1: careful about it. That's a key principle of the Supreme Court,
Speaker 1: as steredecisis, which is kind of respecting precedent, and the
Speaker 1: Chief Justice in particular cares a lot about that and
Speaker 1: likes for change to happen very slowly. But you know,
Speaker 1: if with six, you know, conservative leaning justices on the Court,
Speaker 1: that whole dynamic could change. So I wouldn't expect to
Speaker 1: see dramatic changes right away, but we could certainly see
Speaker 1: more incremental changes if those cases make it up there. Finally,
Speaker 1: let's talk about this term. At the moment, we have
Speaker 1: eight Supreme Court justices, so we could potentially have some
Speaker 1: four or four ties. Are there any cases that are
Speaker 1: coming up this term environmental cases, especially in the first
Speaker 1: part of the term, that could be affected by Justice
Speaker 1: Skinsburg no longer being on the court. Nothing major. The
Speaker 1: first actually in the first day of oral argument, there's
Speaker 1: an environmental case that has to do with water rights
Speaker 1: Texas City, New Mexico, and it's not expected to split
Speaker 1: on ideological lines, so no big impact there. There's another
Speaker 1: case in November that has to do with FOYA, but
Speaker 1: it affects Endangered Species Act records. It wasn't you know,
Speaker 1: it's a little unclear how that case is going to
Speaker 1: shake out because it's really FOYA law and not environmental law.
Speaker 1: It wasn't expected that, you know, Justice Ginsberg would have
Speaker 1: provided the pivotal vote on that, so likely no big
Speaker 1: change there. And it's really a light environmental docket so
Speaker 1: far for this term. The justices are going to add
Speaker 1: more cases to their calendar and it might be a
Speaker 1: little bit harder. I mean, they might just grant fewer
Speaker 1: cases because it takes four votes for the Supreme Court
Speaker 1: to grant cert on a case, to agree to hear
Speaker 1: a case, and you might not see them taking up
Speaker 1: quite as many cases as they had before until they
Speaker 1: have that full complement of nine justices. Yeah, and I wonder,
Speaker 1: I mean, there's no way for us to know, because
Speaker 1: what happens in the Supreme Court stays in the Supreme
Speaker 1: Court often. But I do wonder if if there might
Speaker 1: be some cases that the conservative justices would have granted
Speaker 1: but now are going to hold off on granting because
Speaker 1: they think they might have a better chance of ruling
Speaker 1: the way that they want to rule once they get
Speaker 1: a new justice on the court. If there may be
Speaker 1: some strategic grants or strategic denials there. It's possible, especially
Speaker 1: on issues where Chief Justice Roberts has been a little
Speaker 1: more leery of big changes, for example, on some administrative
Speaker 1: law issues, if you had a more conservative member of
Speaker 1: the Court added to the bench after a nomination process,
Speaker 1: then you could see maybe four of them getting together
Speaker 1: and saying like, now we really want to tackle deference,
Speaker 1: or now we really want to tackle non delegation doctrine.
Speaker 1: These are a couple of issues that are really hot
Speaker 1: in administrative law circles and constitutional law circles. So that's
Speaker 1: possible knowing that they would have not have to think about,
Speaker 1: you know, the Chief Justice maybe defecting that, maybe they
Speaker 1: would be interested in taking those up. We'll see. And
Speaker 1: I also have to imagine that they if they can
Speaker 1: avoid it, they don't want a four four tie. I
Speaker 1: know they the Court really hates it when they take
Speaker 1: a case. They do all the work, the clerks write
Speaker 1: the briefs, they hold oral arguments, and then they just
Speaker 1: come up with a four to four tie and then
Speaker 1: it's like it never happened. You know, they probably want
Speaker 1: to avoid that, right, Yeah, they definitely want to avoid
Speaker 1: that it has happened. The last environmental case I can
Speaker 1: think of where that happened was a big tribal treaty
Speaker 1: rights case that affected fishing in the Pacific Northwest, the
Speaker 1: tribe's treaty right to fish, and it was a four
Speaker 1: to four tie because Justice Kennedy kind of at the
Speaker 1: last minute was like, oh shoot, I need to recuse
Speaker 1: myself from this case. Who So it ended up four
Speaker 1: to four and they upheld the decision below and it
Speaker 1: was a big win for tribal treaty rights. So those
Speaker 1: are situations that are kind of rare and they like
Speaker 1: to avoid. There was another one that happened when there
Speaker 1: was before Justice Kavanaugh was confirmed. They heard a case
Speaker 1: that had to do with property rights called Nick and
Speaker 1: it had some impacts on environmental issues, kind of farther out,
Speaker 1: ripple effects on environmental issues. And in that case they
Speaker 1: actually held or they called for additional briefing because they,
Speaker 1: you know, probably wanted to have that ninth justice on
Speaker 1: the bench to consider those issues. That's it for today's
Speaker 1: episode of Parts Pervillion. If you want more environmental news,
Speaker 1: check out our website Newstop Bloomberg environment dot com. That
Speaker 1: website once again is Newstop Bloomberg Environment dot Com. Today's
Speaker 1: episode of Pars Rebellion was produced by myself and Josh Block.
Speaker 1: Pars Rebellion was created by Jessica Coombs and Rachel Dagel.
Speaker 1: The music for today's episode, It's a Message by Bizarre
Speaker 1: and Night Walk by Paolo County and Benoit Medrakowski. They
Speaker 1: were used under a Creative Commons license. Thanks everyone for
Speaker 1: listening those nine justices in Washington. They can be pretty
Speaker 1: hard to keep track up. That's where we come in.
Speaker 1: I'm Jordan Ruben and I'm Kimberly Robinson. On our podcast
Speaker 1: Cases and Controversies, we give you a week by week
Speaker 1: accounting of the Supreme Court, the filings, the arguments, the opinions,
Speaker 1: and much much more. So. Check in on Fridays with
Speaker 1: Cases and Controversies to find out what's coming up on
Speaker 1: the horizon at the Supreme Court. Download and subscribe wherever
Speaker 1: you get your podcasts.