Ruth Bader Ginsburg on Environment

Supreme Court Justice (nominated by Pres. Clinton 1993)

OK to sue polluters for past pollution.

Justice Ginsburg wrote the Court's decision on FRIENDS OF THE EARTH v. LAIDLAW on Jan 12, 2000:

Laidlaw Environmental Services bought a wastewater treatment plant and was granted a Pollutant Discharge Permit by the South Carolina Department of Health and Environmental Control (DHEC). Laidlaw began to discharge various pollutants into the waterway, repeatedly in excess of the limits set by the permit. In April 1992, Friends of the Earth (FOE) sued; the DHEC and Laidlaw reached a settlement requiring Laidlaw to pay $100,000 in civil penalties and to make “every effort” to comply with its permit obligations.

In June 1992, FOE filed this citizen suit against Laidlaw, alleging noncompliance with the permit and seeking further penalties. A judge found in 1997 that Laidlaw had gained a total economic benefit of $1,092,581 as a result of 13 permit violations between 1992 and 1997; and awarded a civil penalty of $405,800. Laidlaw [appealed on the grounds that] the entire facility has since been permanently closed, and all discharges from the facility have permanently ceased, [and the Fourth Circuit dismissed the case as moot].

Held:

(Ginsburg, joined by Rehnquist, Stevens, O’Connor, Kennedy, Souter, and Breyer(
The Fourth Circuit erred in concluding that a citizen suitor’s claim for civil penalties must be dismissed as moot when the defendant has come into compliance with its Pollution Discharge permit.

Dissent:

(Scalia, joined by Thomas)
The Supreme Court uncritically accepting vague claims of injury [where] the District Court found that Laidlaw’s discharges caused no demonstrable harm to the environment. It then proceeds to marry private wrong with public remedy in a union that violates traditional principles of federal standing--thereby permitting law enforcement to be placed in the hands of private individuals. I dissent from all of this. Source: Supreme Court case 98-822 argued on Oct 12, 1999

Extend CWA restrictions to isolated water bodies.

Justice Ginsburg joined the dissent on SOLID WASTE AGENCY OF COOK COUNTY v. ARMY CORPS OF ENGINEERS on Jan 9, 2001:

A consortium of suburban Chicago municipalities (Cook County) selected as a solid waste disposal site an abandoned sand and gravel pit. They asked the Army Corps of Engineers (Corps) to determine if a landfill permit was required under the Clean Water Act (CWA). The Corps cited the “Migratory Bird Rule,” which extended its jurisdiction to intrastate waters that provide habitat for migratory birds, and refused to issue a permit.

Held:

(Rehnquist, joined by O’Connor, Scalia, Kennedy, & Thomas)
Applying the Migratory Bird Rule exceeds the authority granted to the Corps under the CWA. The Corps would have jurisdiction over wetlands adjacent to a navigable waterway, but these wetlands are not adjacent to open water.

Dissent:

(Stevens, joined by Souter, Ginsburg, & Breyer)
In 1969, the Cuyahoga River in Cleveland, Ohio, coated with a slick of industrial waste, caught fire. Congress responded to that dramatic event by enacting the Clean Water Act. The Act proclaimed the ambitious goal of ending water pollution by 1985. The Court’s past interpretations of the CWA have been fully consistent with that goal. Today, however, the Court takes an unfortunate step that needlessly weakens our principal safeguard against toxic water.

In its decision today, the Court draws a new jurisdictional line, one that invalidates the 1986 migratory bird regulation as well as the Corps’ assertion of jurisdiction over all waters except for actually navigable waters, their tributaries, and wetlands adjacent to each.

Congress does support the Corps’ present interpretation of its mission as extending to so-called “isolated” waters. I respectfully dissent.

Source: Supreme Court case 99-1178 argued on Oct 31, 2000

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