The US Supreme Court Building in Washington, D.C.

Sadly, last Friday, Supreme Court Justice Ruth Bader Ginsberg passed away at the age of 87. A cultural icon and a pioneering advocate for women’s rights, Justice Ginsberg spent the last 27 years as an Associate Justice of the Supreme Court, after she was nominated by President Bill Clinton in 1993. As the country mourns her passing, and conversations begin about potential replacements, many have come to wonder how a potentially conservative appointment would influence the future on key issues that Justice Ginsberg championed during her 27 years on the bench.

Although Ginsburg is most well known as a staunch advocate for gender equality and women’s rights, during her time on the bench Ginsberg proved to also be a fierce advocate for environmental regulations and protections. In 2000, Ginsburg joined a ruling in Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc. that helped to ease the required threshold that a person or organization needed to meet prior to bringing an environmental lawsuit. A year later, during Whitman v. American Trucking Associations, Justice Ginsburg joined a unanimous court in ruling that the EPA cannot consider implementation costs when deciding on national air quality limits for major pollutants. In 2007, Ginsburg’s long track record of supporting the Environmental Protection Agency culminated in establishing the critical Supreme Court precedent that empowered the EPA to address the greenhouse gas emissions driving climate change. This precedent originated in Massachusetts v. Environmental Protection Agency, when Justice Ginsburg joined a ruling that affirmed the EPA’s power to regulate greenhouse gas emissions, which provided the Obama administration with the ability to issue a variety of rules, such as the Clean Air Act, that limited carbon pollution. This Supreme Court ruling ultimately set the framework for a legal battle over the extent of the federal authority of the EPA, which remains a heavily contested issue. In the following years, Justice Ginsburg remained steadfast in her support of more environmental regulations when she upheld various Obama rulings that limited air pollution, such as in Utility Air Regulatory Group v. Environmental Protection Agency, as well as a ruling County of Maui v. Hawaiʻi Wildlife Fund that expanded the scope of the Clean Water Act to include pollutants in groundwater.

Justice Ginsburg’s track record clearly demonstrated that when it came to environmental issues, she consistently ruled in favor of expanding federal regulations for environmental protection. Undoubtedly, Ginsburg’s constant support of environmental issues led to many Supreme Court decisions that favored environmental protection laws; however, with the passing of Justice Ginsburg and a potential Supreme Court nomination from President Trump the Supreme Court could shift to a significantly more conservative stance on environmental protections.

Nominee

On Saturday, President Donald Trump announced that he has selected Judge Amy Coney Barrett to filled Ruth Bader Ginsberg seat, and be his third Supreme Court nominee.

Following a clerkship with the late Justice Antonin Scalia, Barrett spent nearly two decades as a law professor at Notre Dame Law School before being confirmed as a judge on the U.S. Court of Appeals for the Seventh Circuit (Illinois, Indiana, Wisconsin). Barrett has served on the Seventh Circuit for less than 3 years, which means there’s been little time to develop a body of legal opinions that could indicate how Barrett might vote if confirmed to the Supreme Court. During Barrett’s time as a law professor, however, she frequently expressed a need for the Supreme Court to overturn its precedents more often and questioned the “administrative state.” These views demonstrate that Barrett would be open to significantly narrowing, or possibly overturning, key Supreme Court precedents, including victories for Justice Ginsburg, such as EPA’s previously mentioned regulatory authority on greenhouse gases. More specifically, during a panel discussion on environmental issues and property law, Barrett contended that the federal government has gone too far in regards to legislation such as the Clean Water Act. Barret’s sentiments regarding the Clean Water Act were reflected during her time on the Seventh Circuit during Orchard Hill Building Co. v. U.S. Army Corps of Engineers when Judge Barret joined a ruling siding against the Army Corps of Engineers’ efforts to protect wetlands in Illinois under the Clean Water Act. In the conclusion of this ruling, it was stated that the Army Corps of Engineers did not provide “substantial evidence of a significant nexus to navigable‐in‐fact waters.” This ruling demonstrates that Barrett believes that there should be a high threshold that must be proven when it comes to environmental damages under legislative protections. These sentiments suggest that if Barrett was selected to be on the Supreme Court, she would potentially not rule in favor of additional federal regulations for environmental protection.

Amy Barrett’s past statements on environmental issues indicate that she would be no exception to this. She will instead most likely vote against any potential rulings that would expand the federal government’s role in protecting the environment. Barret’s conservative approach would thus provide a stark contrast to Justice Ginsburg’s unwavering support of environmental protections, and ultimately her confirmation could lead to many of the rulings that Ginsburg supported to be overturned under a conservative leaning Supreme Court. 

Denise Bode
Bio Link Denise co-leads the federal practice at Michael Best Strategies with expertise in association and coalition management as well as development of public policy strategies, at both the state and federal level. She was active, on behalf of firm clients, during the recent federal tax reform debate, much as she was during the last major tax reform in 1986. Expertise: Regulatory Law, Tax & Trade, Energy, Environmental, Food, Agriculture, and Telecommunications

LEAVE A REPLY

Please enter your comment!
Please enter your name here