Grappling with a contentious dispute over cross-state air pollution, Justice Ruth Bader Ginsburg, writing for the majority in Environmental Protection Agency v. EME Homer City Generation, first consulted the King James Bible. “‘The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth,’ she wrote, “In crafting a solution to the problem of interstate air pollution, regulators must account for the vagaries of the wind.”
It was 2014, and at stake was a complicated, science-driven plan crafted by the EPA to limit air pollution that wafts from one state to endanger communities in another. The plan, which budgeted air emissions in certain states, promised to save thousands of lives and bring cleaner air to poor and minority neighborhoods. But in so doing, it would force several aging coal plants to close. Industry cried foul, saying the agency had not been precise enough in its allocations. EPA responded that the kind of precision industry wanted was nowhere required in the law and was, at any rate, impossible. When troubled winds swirl, one “canst not tell whence it cometh.”
In her majority opinion, Ginsburg rides that sacred thermal for only a moment before swooping into a forest of cost curves, computer models, and bureaucratic argle bargle. It’s a dizzying trip. But when, dozens of paragraphs later, the justice eventually pulls out of the canopy—having whisked you through “one-percent thresholds,” airshed “bubbles,” and a traumatic set of math-class hypotheticals (“Suppose then that States X and Y . . .”)—you find (if you’ve held on tight and not lost your lunch) that at the end of it all, EPA’s “Good Neighbor” policy makes some practical sense and fits easily with the plain language of the controlling statute. The Court sided with the agency 6-2. (Justice Alito did not participate.)
Having served at the EPA at the time the Cross-State Air Pollution Rule was being developed, the opinion is, for me, a special part of the justice’s legacy. Reading it this week with fresh eyes, what impresses me most is not Ginsburg’s capacious intellect or her terrier-like resolve to master the science, the math, and whatever else. It’s not even the comforting clarity with which she enlightens the reader. What makes me choke up is that lilting and timeless reflection on the vagaries of wind. With that passage, Ginsburg situates the prevailing regulatory drama within an ineffable human experience as old as time, one that you can hear, touch, and feel in your rattled bones. There’s beauty and history in that overture, and a blend of cultural traditions, too, as the woman who would become the Court’s longest-serving Jewish justice invokes the words of Jesus to open the reader’s mind and get to the business at hand.
As it did during her remarkable life, the wind continues to “bloweth and listeth.” Thus the passing of Justice Ruth Bader Ginsburg has predictably brought out the best and worst in us. On the one hand, Americans came together in mourning a truly beloved public figure, a woman whose life was about overcoming the barriers placed before her to rise to the very top of her profession, and then reaching out to help others follow in her footsteps, opening doors and clearing a path for them to be full participants in our society, economy, and public life. Justice Ginsburg's legacy is one of inclusion, fairness, equality, and as her title suggests, justice. But I’m afraid that those who regard such ideals as a threat to their power and status have made little effort to constrain their opportunism. Thus her passing has also triggered what promises to be a monumental power struggle as a president with sagging prospects for reelection and a Senate majority sensing its weakening grip on power aims to solidify a hard-right Supreme Court majority for years to come.
For the Member Scholars and staff of the Center for Progressive Reform, Justice Ginsburg's passing is a moment for reflection, a time to celebrate her achievements, mourn what has been lost, and gird for what is to come. Because her death has triggered such an outpouring of emotion, we asked the CPR family to offer reflections on her life and legacy and have gathered them on our website. I encourage you to take a few moments to read them.
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Robert Verchick | September 25, 2020
For the Member Scholars and staff of the Center for Progressive Reform, Justice Ginsburg's passing is a moment for reflection, a time to celebrate her achievements, mourn what has been lost, and gird for what is to come. Because her death has triggered such an outpouring of emotion, we asked the CPR family to offer reflections on her life and legacy and have gathered them on our website. I encourage you to take a few moments to read them.
David Flores | September 25, 2020
On September 24, CPR and Waterkeeper Alliance convened the first in a series of webinars on climate-driven pollution and chemical disaster. The toxic floodwaters phenomenon only exists because of a set of intersecting policy failures, and it will take a bold and sophisticated community of activists to achieve intersecting reforms that prevent the harm of climate-driven pollution. Panelists Jamie Brunkow, Jordan Macha, and Victor Flatt are but a few within that community of climate and environmental advocates and scholars.
James Goodwin | September 24, 2020
An underappreciated side effect of the modern conservative movement now epitomized by Trumpism is its dogged pursuit of any legal argument to support “the cause,” no matter how ridiculous or specious. Long-settled questions like nondelegation and the constitutionality of independent regulatory agencies are suddenly, if bizarrely, up for grabs again. Add to this list a new line of argument – now germinating like a mushroom spore in horse manure – that posits that citizen suit provisions, such as those included in the Clean Air Act and Clean Water Act, are unconstitutional infringements upon the so-called unitary executive.
Daniel Farber | September 22, 2020
With Sen. Mitt Romney's announcement that he would support consideration of a nominee before the election, it now seems virtually certain that President Trump will be able to appoint a sixth conservative justice. How will that affect future climate policy? Here is a preliminary threat assessment.
Rebecca Bratspies | September 21, 2020
Recently, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler spoke to commemorate the 50th anniversary of the EPA's founding. He used the opportunity to reiterate the agency's commitment to its “straightforward” mission to “protect human health and the environment.” He also emphasized that the agency’s mission meant “ensuring that all Americans – regardless of their zip code – have clean air to breathe, clean water to drink, and clean land to live, work, and play upon.” Yet just last week, EPA postponed an internal speaker series on environmental justice. The reason for this postponement: the appalling suggestion, as per a recent White House Office of Management and Budget (OMB) memo, that recognizing racial disparities in environmental protection is somehow "un-American."
Joel A. Mintz, Victor Flatt | September 17, 2020
The COVID-19 pandemic has ushered in a wave of worrisome and needless regulatory relaxations that have increased pollution across the United States. Recent reporting by the Associated Press and other outlets has documented more than 3,000 pandemic-based requests from polluters to state agencies and the U.S. Environmental Protection Agency for waivers of environmental requirements. Numerous state governments, with the tacit encouragement of the EPA, went along with many of those requests.
Rena Steinzor | September 16, 2020
Presidents since Ronald Reagan have endorsed the assumption that government is too big and too intrusive. Yet the figurative poster children targeted by these chill words have been public health agencies heavily dependent on science-based decision-making as opposed to—as just one example—the U.S. Department of Homeland Security. No president has spent any concerted amount of time explaining how protective public health interventions, including regulation, make life better. No president has praised the civil servants who weather seemingly endless—and enervating—disputes over science and law that make it possible to deliver those protections. For the sake of the civil service and its broken morale, and for the American people, who are exhausted and rendered hopeless by the indiscriminate attacks on the government’s competence to keep the population safe, the next president should use the bully pulpit to advance a positive narrative about government’s accomplishments.
Joel A. Mintz | September 15, 2020
As I noted in a previous post, the pending case of United States v. DTE Energy, Inc. tacitly raises issues concerning the constitutionality of both Supplemental Environmental Projects (SEPs) and the citizen suit provisions of environmental laws. This second post considers another constitutional issue that may emerge in the DTE Energy litigation: whether SEP agreements -- and citizen suits more generally -- interfere with a “core executive function” of the president and executive branch and longstanding constitutional notions of separation of powers. To resolve that question soundly, one must look to the text of the Constitution itself, the Federalist Papers, and the relevant body of law that the lower federal courts have already developed.
Joel A. Mintz | September 14, 2020
Over the past few years, the U.S. Department of Justice (DOJ) has shown increasing hostility to the use of Supplemental Environmental Projects (SEPs) in settlements of federal environmental enforcement cases. Aside from a series of ever-tightening SEP policies, however, DOJ has never asserted in court that these projects are unconstitutional. At least not yet.