Speaker 1: Today on Parts Pervilion, we talk about how the Biden
Speaker 1: administration can make its environmental agenda bulletproof to legal challenges,
Speaker 1: or actually, more like whether that's even possible. Hello, Welcome
Speaker 1: back once again to Parts per Billion, the environmental podcast
Speaker 1: from Bloomberg Law. I'm David Schultz. So every presidential administration
Speaker 1: gets some of its policy initiatives thrown out in court.
Speaker 1: It's just something that's bound to happen. The legal limits
Speaker 1: on executive power can be kind of vague, especially when
Speaker 1: it comes to the environment, So sometimes mistakes get made.
Speaker 1: You know whose job it is to prevent those kind
Speaker 1: of mistakes. Lawyers. Federal agencies have armies of lawyers who
Speaker 1: pour over regulatory proposals to determine whether they are or
Speaker 1: are not allowable under the law and the constitution. Now,
Speaker 1: these aren't the most high profile jobs. You're not going
Speaker 1: to get a push alert on your phone when one
Speaker 1: of these regulatory attorneys gets hired. It's say the EPA
Speaker 1: or the Interior Department. But these lawyers can actually make
Speaker 1: the difference between whether an environmental agency actually accomplishes anything
Speaker 1: or whether years of hard work gets nullified by the
Speaker 1: banging of a gavel. Bloomberg Law reporters Allen Gilmer and
Speaker 1: Stephen Lee have been reporting on exactly how the incoming
Speaker 1: Biden administration will be gobbling up environmental lawyers. And I
Speaker 1: spoke with Ellen about the qualities that these attorneys need
Speaker 1: and about what can go wrong. Well, with any environmental regulation,
Speaker 1: you can expect it to be litigated. So that was
Speaker 1: definitely the case during the Obama administration, and a lot
Speaker 1: of the really like marquee regulatory moves the Obama administration
Speaker 1: made on climate and water, they were litigated. Some of
Speaker 1: them got held up in court. The biggest climate regulation
Speaker 1: the Obama administration put together was called the Clean Power Plan,
Speaker 1: and that affected power plants, and it was never struck
Speaker 1: down in court, but the Supreme Court put it on pause,
Speaker 1: so it never took effect, and it was never actually
Speaker 1: fully litigated. It got argued and never decided with the
Speaker 1: Obama Strations rule for water jurisdiction, which some fellow policy
Speaker 1: wonks will lovingly refer to as the Obama wotis rule
Speaker 1: Waters of the US. So that was challenged in a
Speaker 1: bunch of different courts, and some courts put it on hold.
Speaker 1: In some places it took effect in other places. So
Speaker 1: long story short, during the Obama administration, you know, a
Speaker 1: lot of environmental REGs took effect, all of them were litigated,
Speaker 1: some of them were kind of stumbled during the legal process,
Speaker 1: and we never really saw them come to fruition. Yeah.
Speaker 1: I guess every presidential administration has a batting average when
Speaker 1: it comes to, you know, environmental REGs. No one's going
Speaker 1: to hit bat a thousand, of course, but it really
Speaker 1: did seem like with the Clean Power Plan especially, it
Speaker 1: must have been a huge disappointment for environmental activists and
Speaker 1: also people within the Obama administration who were hoping that
Speaker 1: would be their signature legacy on the environment. Right. Oh yeah,
Speaker 1: I mean a lot OFMA officials said like, oh, that
Speaker 1: was one of our worst days, was the day we
Speaker 1: found out that the Clean Power Plan was was frozen
Speaker 1: by the Supreme Court. But at the same time a
Speaker 1: lot of other regulations did take effect, So I think
Speaker 1: calling it a mixed bag is probably correct. So now
Speaker 1: we have a new president coming into office who happened
Speaker 1: to be the vice president at that time, and you
Speaker 1: and Stephen Lee had a really cool story about the
Speaker 1: attorneys who will be vetting all the things that the
Speaker 1: Biden administration is going to be doing. Can the Biden
Speaker 1: administration avoid these setbacks that you know the Obama administration
Speaker 1: faced or is that even possible because as you said,
Speaker 1: everything that they do is going to be litigated. Everything
Speaker 1: is going to go to courts, right, Yes, everything is
Speaker 1: going to court. We know that a lot of conservative
Speaker 1: leaning state attorney generals are going to sue over very
Speaker 1: environmental regulations during the Biden administration. We know that industry
Speaker 1: groups will sue some like legal associations and other entities
Speaker 1: and companies will file suit. So it's going to be
Speaker 1: a big mess in the courts. Again, that's nothing new.
Speaker 1: Like again, that's what we expect to happen in any administration.
Speaker 1: I wouldn't say that the Obama administration had a particularly
Speaker 1: poor record. I think it was pretty average, and the
Speaker 1: Biden administration, you know, will be going into it kind
Speaker 1: of with the benefit of having learned the lessons of
Speaker 1: both the Obama administration and the Trump administration, because all
Speaker 1: of the Trump administration's environmental rollbacks were also challenged in court,
Speaker 1: and through the course of that litigation, we got some
Speaker 1: clarity from different courts on kind of the scope of
Speaker 1: administrative law or the application of administrative law, and how
Speaker 1: certain you know, regulatory moves would be viewed by the court.
Speaker 1: There's a lot of kind of quick actions that the
Speaker 1: Trump administration took that tested the limits of what you
Speaker 1: can do under the Administrative Procedure Act. So the Biden
Speaker 1: administration actually gets the benefit of seeing how those things
Speaker 1: played out for Trump and seeing, Okay, so we don't
Speaker 1: have that tool available, or we do have that tool,
Speaker 1: and we can try this and that and go from there.
Speaker 1: One of the things that I really liked about your story,
Speaker 1: the story that you and Steven did, is that you
Speaker 1: talk to a lot of people who held these rules
Speaker 1: in the past, at the Justice Department, at the Interior Department, ANAPA,
Speaker 1: of course, people who are general counsels, you know, regulatory attorneys.
Speaker 1: And one of the things that they said is that
Speaker 1: it's really important for people in those rules to have
Speaker 1: good relationships with the other senior leaders who they're going
Speaker 1: to be working with. And I kind of read between
Speaker 1: the lines there a little bit, and you know, it
Speaker 1: seemed like that's because these attorneys are going to be
Speaker 1: telling other people no, you know, they're going to be saying, hey,
Speaker 1: you know, I know you want to sort of put
Speaker 1: that into this regulation, but we just can't do that.
Speaker 1: Is that, you know? Is that a fair reading of
Speaker 1: those comments? I think so many of the lawyers we
Speaker 1: talk to said, you know, their job is to push
Speaker 1: back sometimes to tell other politically appointed officials, hey, this
Speaker 1: is not going to be legally feasible. This isn't going
Speaker 1: to stand up in court. But a lot of them
Speaker 1: actually stressed that, like they don't want to be the
Speaker 1: no person. They want to be the person who says,
Speaker 1: not that way, this might work instead, So they're having
Speaker 1: to be kind of creative. Instead of saying no, they
Speaker 1: can say yes but or yes. And I guess to
Speaker 1: take a turn from the improv comedy community or a
Speaker 1: lawyer's favorite answer is it depends if we do it
Speaker 1: that way, if we do it this other way, this
Speaker 1: might work. We're talking about, you know, who the lawyers
Speaker 1: are going to be, but let's talk about what they're
Speaker 1: going to be defending. I mean, it's still way too soon.
Speaker 1: We haven't even reached inaugurations, so we don't know and
Speaker 1: we don't even know who the head of the EPA
Speaker 1: is going to be or interior. However, you know, what
Speaker 1: do we know about what the Biden administration is going
Speaker 1: to try to do with its executive powers on the environment?
Speaker 1: You know, do we have any indication of what some
Speaker 1: of the big initiatives are going to be. Well, we
Speaker 1: know that the Biden campaign has been clear about its
Speaker 1: priorities on the environment, climate, environmental justice. Those are the
Speaker 1: two top tier items, so that those two issues touch
Speaker 1: a number of different regulations. We're going to see the
Speaker 1: Biden administration reverse several Trump administration moves, or at least
Speaker 1: attempt to reverse several Trump era moves, including so you'll
Speaker 1: see something from the Biden administration to try to reinstate
Speaker 1: some kind of clean power plan, like limits on greenhouse
Speaker 1: gas emissions from the power sector. We don't know exactly
Speaker 1: what that's going to look like. It'll probably be something
Speaker 1: different that looks a little different from the Clean Power
Speaker 1: Plan that's a little more ambitious as far as targets go.
Speaker 1: We're probably going to see the incoming Biden administration move
Speaker 1: to reinstate kind of a broader view of the scope
Speaker 1: of the Clean Water Act and the types of waterways
Speaker 1: and wetlands that are protected under the Clean Water Act.
Speaker 1: That's a big one, we'll see new regulations from the
Speaker 1: Biden administration that attempt to protect fence line communities, which
Speaker 1: are the people who live to like big industrial polluters.
Speaker 1: So we'll see just a lot of action on all
Speaker 1: of those areas, and we'll see different industries affected in
Speaker 1: different ways, and it won't be across the board that
Speaker 1: industry players are suing over all of these. You know,
Speaker 1: we've seen some industry support for certain regulations, like if
Speaker 1: the Biden administration reinstates strict controls on methane emissions from
Speaker 1: the oil and gas industry, that's something that has some
Speaker 1: industry support. But we will see lawsuits over a lot
Speaker 1: of these moves. The lawyers Stephen and I highlighted in
Speaker 1: our story are people who they're not the face of
Speaker 1: the agency. It's not the head of EPA, it's not
Speaker 1: the head of the Interior Department. But there these other,
Speaker 1: like very powerful politically appointed Senate confirmed officials who are
Speaker 1: really steering the ship through the potential legal risks of
Speaker 1: all of these regulatory moves bid an administration is going
Speaker 1: to want to make. And one of the things that
Speaker 1: I wanted to ask you about is, you know, we
Speaker 1: had our colleague Dean Scott on the podcast a couple
Speaker 1: of weeks ago, and he made an interesting point, which
Speaker 1: is that you know, regardless of what happens on January fifth,
Speaker 1: when there's a runoff election for the two remaining Senate
Speaker 1: seats in Georgia, that will of course determine which party
Speaker 1: controls the Senate. Regardless of what happens with that, we're
Speaker 1: going to have a really closely divided Senate in a
Speaker 1: really closely divided Congress, which means that it's probably not
Speaker 1: realistic to expect Congress to do a lot on anything,
Speaker 1: especially the environment. Do you think that that will make
Speaker 1: it There's going to be more pressure on the EPA
Speaker 1: and the Interior Department to get things done, and that
Speaker 1: that could lead those agencies down a potentially risky path
Speaker 1: of stretching executive power to its limits. Perhaps it puts
Speaker 1: a lot of pressure on the agencies and on the
Speaker 1: White House to do things themselves. They've all seen all
Speaker 1: all of the people who will be in power in
Speaker 1: the next administration have seen the legal pitfalls that that
Speaker 1: might exist. Uh, and they're going to be very careful
Speaker 1: about how they do stuff. It is a balance, it's
Speaker 1: a balance of trying to do something ambitious that makes
Speaker 1: an impact, while at the same time staying within the
Speaker 1: letter of the statutes that kind of lay out what
Speaker 1: power EPA has under the Clean Air Act or what
Speaker 1: power Interior has under the Mineral Leasing Act. So it's
Speaker 1: it's a tough balance. It's a big job for all
Speaker 1: of these agency lawyers, that's for sure, and other decision
Speaker 1: makers in the agencies, and it could push them to
Speaker 1: make some moves. You know, the fact that Congress likely
Speaker 1: won't be taking the kind of bold actions that some
Speaker 1: had had hoped for. If there had been a blue
Speaker 1: wave that does put more pressure on the agencies. It
Speaker 1: might create you know, some quicker decision making or some
Speaker 1: some more ambitious moves that might be more legal, legally vulnerable.
Speaker 1: But it's just hard to say how they're going to
Speaker 1: strike the balance because to some extent they're going to
Speaker 1: have to be kind of listening to all of that
Speaker 1: outside pressure to take action and then you know, choosing
Speaker 1: to be a little slower and do you know, listen
Speaker 1: to their lawyers and do what they need to do
Speaker 1: to make sure they can be upheld in court. But
Speaker 1: you also, you had a great you just made a
Speaker 1: great point earlier that like they also have the benefit
Speaker 1: of hindsight, like they've seen what's happened in the last
Speaker 1: four years during the Trump administration and the eight years
Speaker 1: before that. So maybe that's one thing they have going
Speaker 1: for them is that they have a better sense of,
Speaker 1: you know, what environmental agencies can do and what they
Speaker 1: can't do. I think that's right, to be sure. There
Speaker 1: are a lot of big environmental law questions that still
Speaker 1: haven't been answered despite years of litigation during both the
Speaker 1: Trump and Obama administrations. So there's like some big major
Speaker 1: questions that courts haven't weighed in on in terms of,
Speaker 1: you know, climate regulations and water jurisdiction and things like that.
Speaker 1: But courts have weighed in a lot over the past
Speaker 1: four years on the Administrative Procedure Act and what you
Speaker 1: have to do to craft a new regulation to get
Speaker 1: rid of an old regulation. They've they've issued a ton
Speaker 1: of opinions on those on those questions, and that is
Speaker 1: really a guidebook for you know, what the new administration
Speaker 1: will have to do to get its agenda through. That's
Speaker 1: it for today's episode of Parts per Billion. If you
Speaker 1: want more environmental news, check us out on Twitter. We
Speaker 1: use a pretty easy to remember handle. It's at Environment.
Speaker 1: Just that at Environment, I'm at David B. Schultz if
Speaker 1: you want to send me any holiday greetings. Today's episode
Speaker 1: of Parts Rebillion was produced by myself and Josh Block.
Speaker 1: Parts Rebellion was created by Jessica Coomb and Rachel Daegel.
Speaker 1: The music of today's episode is a Message by Jazar
Speaker 1: and the Quest by Tom Hillock and Nichols Boskovic. They
Speaker 1: were used under a Creative Comics license. Thanks everyone for listening.
Speaker 1: This is Adam Allington and I'm here to announce a
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Speaker 1: law is for in some cases, isn't adapting to become
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