The death of Justice Ruth Bader Ginsburg, a progressive and feminist icon for many, left a vacancy that could result in decades of conservative majority rule on the Supreme Court. Nominated as her replacement, announced on Sept. 26 by President Donald Trump, is conservative federal Judge Amy Coney Barrett, the daughter of long-time Shell Oil senior attorney Michael Coney.
Many articles have focused on Ginsburg’s 2007 vote with the majority in the case Massachusetts v. U.S. Environmental Protection Agency, granting the EPA authority to regulate greenhouse gases as a toxic air pollutant under the Clean Air Act. It was a landmark decision, though the closest the EPA ever came to enacting it was under the Obama administration’s Clean Power Plan proposal, which was tied up in federal court and then made moot by President Trump. Similarly moot were the rules issued during Obama’s last year in office to regulate methane emissions from fracking under the Clean Air Act, which was reversed by Trump.
And yet a case Ginsburg decided just four years later in 2011 made it impossible for states to intervene when the federal government is not using its regulatory authority to combat greenhouse gas emissions. Ginsburg wrote the majority opinion in an 8-0 ruling in the case American Electric Power v. Connecticut to prohibit states from regulating greenhouse gases as a “nuisance.” The Supreme Court ruled that the authority to regulate greenhouse gases rests only with the EPA.
Some noted that the American Electric Power ruling reconfirmed Mass. v. EPA as the law of the land, clearing the way for the Clean Power Plan. But that ruling also meant that with the passing of the guard from Obama to Trump, the EPA had sole authority to undo the Clean Power Plan. And it did just that under EPA Administrator Scott Pruitt.
In the Trump era, states have primarily responded to regulatory rollbacks by filing lawsuits against the administration. With states winning the vast majority of those cases, the Trump administration has responded by not enforcing environmental regulations on the books.
In a Sept. 24 episode of TRNN’s Stir Crazy, Mari Margil, the executive director of the Center for Democratic and Environmental Rights, which focuses on creating legal rights for nature, spoke to the ecological limitations of legal fights under the current paradigm.
“What we need to consider within our environmental law, and the legal system within which the Supreme Court itself is stuck, is that it has to rule within the law, within what our system currently allows,” Margil told The Real News. “We have environmental laws at the federal level and at our state level such as the Clean Air Act, Clean Water Act, etc. And those laws are all based on this idea that nature exists to serve human needs, human use … Those legalized activities bring known environmental harms, such as fracking, or industrial hog farming, or mining or other things that destroy the environment and are licensed and legally authorized to do so.”
On the issue of eminent domain, Ginsburg voted with the majority in the landmark 2005 case Kelo v. City of New London, granting corporate interests—in this case, pharmaceutical industry giant Pfizer—the right to expropriate land from private landowners for economic development as long as it fulfills a “public purpose.” In subsequent years, the Kelo precedent on eminent domain became a major issue for landowners living along pipeline routes and other energy infrastructure, including for the Keystone XL, Dakota Access, and other pipelines.
The Kelo precedent—dramatized in the 2017 film “Little Pink House”—has also proven vital for the fracking boom, explained University of Minnesota Law School professor Alexandra Klass in an April 2020 paper on the case’s influence on fracked gas exports.
“Since virtually all U.S. citizens use natural gas for their electricity and heating needs, and thus benefit from lower fuel prices, courts have consistently held that such projects are a public use,” wrote Klass.
The same year in which she ruled to empower corporate land rights, Ginsburg ruled against Native Americans’ rights to their ancestral lands in the case City of Sherrill v. Oneida Indian Nation of New York. That case centered around a land dispute over Oneida Nation ancestral lands. In the 8-1 ruling, Ginsburg authored the majority opinion for the case.
“The Tribe [was] rekindling the embers of sovereignty that long ago grew cold,” Ginsburg wrote. “The relief [Oneida Indian Nation] seeks—recognition of present and future sovereign authority to remove the land from local taxation—is unavailable because of the long lapse of time, during which New York’s governance remained undisturbed, and the present-day and future disruption such relief would engender.”
Further, in the June case U.S. Forest Service v. Cowpasture River Preservation Association, Ginsburg joined the majority in ruling 7-2 against environmental justice activists representing Indigenous and Black communities opposed to the Atlantic Coast Pipeline, which was set to bring fracked gas from West Virginia to North Carolina until the company pulled the plug on the project in July.
Ginsburg does appear to have backed off the stance on the “discovery” of Indigenous land, however. In her last months of life and in one of her final votes, she sided with the majority in the McGirt v. Oklahoma case, decided in August. That ruling granted Native Americans in Oklahoma access to their historical land in the eastern half of the state, a 5-4 vote in which the “Doctrine of Discovery” noticeably went unmentioned.
In 2016, Ginsburg also voted with the 7-2 majority in the case Commonwealth of Puerto Rico v. Sanchez Valle, Et Al to maintain the United States’ colonial relationship with Puerto Rico in a case dealing with the “double jeopardy” criminal justice principle, but with much broader implications.
“[N]o one argues that when the United States gained possession of Puerto Rico, its people possessed independent prosecutorial power, in the way that the States or tribes did upon becoming part of this country,” the majority wrote. “Puerto Rico was until then a colony ‘under Spanish sovereignty.’”
The colonial relationship with Puerto Rico continues to have important climate change impacts, made clear when Hurricane Maria hit the archipelago in 2017 and the US government facilitated an ongoing process of flooding the country’s grid with fracked gas imports.
So, while Coney Barrett is someone with far more right-wing politics who could help to dismantle key environmental safeguards, it’s also important to be honest about the track record of the ‘Notorious RBG.’ At the same time, Margil says we also need to go beyond the current environmental law debate.
“Nature itself is in need of a much higher level standard of environmental protection by actually recognizing that nature itself possesses legal rights,” she said. “It’s a legal entity, a living entity that needs protection of even the most basic right to exist because our environmental laws today do not recognize that … And of course the consequences we are seeing today are ecosystems collapse around the globe, we’re seeing species extinction accelerate far faster than normal background, and of course climate change.”
Senate confirmation hearings for Coney Barrett are set to begin on Oct. 12.