WEBVTT - Supreme Court Could Undercut Biden's Climate Agenda 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Bresso from Bloomberg Radio. 0:00:09.240 --> 0:00:12.680 In a case that threatens to undercut President Joe Biden's 0:00:12.720 --> 0:00:16.200 climate agenda, the Supreme Court considered the reach of the 0:00:16.360 --> 0:00:21.239 Environmental Protection Agency's power to reduce greenhouse gas emissions, but 0:00:21.320 --> 0:00:24.480 there was less talk about climate change than about the 0:00:24.520 --> 0:00:29.000 contours of the so called Major Questions doctrine, a doctrine 0:00:29.040 --> 0:00:32.240 the Court relied on to block Ocean's vaccine or test 0:00:32.320 --> 0:00:36.280 mandate and the c d c S eviction moratorium. Jones 0:00:36.400 --> 0:00:40.120 Is Elena Kagan gave an example which Justice any Coney 0:00:40.200 --> 0:00:44.120 Barrett then picked up on. The agency has stepped far 0:00:44.200 --> 0:00:49.800 outside of what we think of as its appropriate lane. Uh, 0:00:49.840 --> 0:00:53.599 you know the FDA regulating tobacco. That sort of thing, 0:00:53.680 --> 0:00:56.800 just like something that's like what the FDA regulates tobacco. 0:00:57.920 --> 0:01:00.360 You know, the FDA staying in its lane. What the 0:01:00.440 --> 0:01:03.280 FDA can regulate tobacco. Or if you think about the 0:01:03.280 --> 0:01:06.560 eviction moratorium case from earlier, this term, you know, it 0:01:06.640 --> 0:01:09.679 was what the CDC can regulate the landlord tenant relationship. 0:01:10.160 --> 0:01:14.640 Here for thinking about ep A regulating greenhouse gases, Well, 0:01:14.680 --> 0:01:18.479 there's a match between the regulation and the agency's wheelhouse. Right, 0:01:18.800 --> 0:01:22.800 How confusing was it all? Justice Stephen Bryer, known for 0:01:22.920 --> 0:01:27.640 his crazy hypotheticals, jumped into help Justice Samuel Alito with 0:01:27.680 --> 0:01:31.920 one of his hypotheticals for Attorney Beth Brinkman, something just 0:01:32.040 --> 0:01:35.400 as Kagan joked about, maybe it's sound a good hypothetical. 0:01:36.680 --> 0:01:41.319 I think he's saying, your mind. Yeah, in tobacco, I 0:01:41.319 --> 0:01:44.319 suppose they started off and saying, we are regulating the 0:01:44.360 --> 0:01:50.520 advertising of four foot cigars smoked through hocus. Okay, now 0:01:51.240 --> 0:01:54.520 the problem is can you regulate tobacco? And if you 0:01:54.560 --> 0:01:58.800 can regulate tobacco, that's a very big deal. But they say, no, 0:01:58.880 --> 0:02:01.040 it isn't. It's just this I n you know, there 0:02:01.080 --> 0:02:03.440 aren't There are only three in the whole country. So 0:02:03.480 --> 0:02:06.160 it's a little deal. So it isn't the major question. 0:02:06.240 --> 0:02:10.040 Doctory you know that helped me, your honor and justice leader. 0:02:10.080 --> 0:02:11.840 I really don't mean to be not answering your question. 0:02:12.960 --> 0:02:15.359 Well I won't, I won't belabor it, and I can 0:02:15.440 --> 0:02:21.919 never equal my my colleagues evocative hypotheticals. You know, it's 0:02:21.960 --> 0:02:25.240 not always the case, mis Brinkman, that a lawyer responds 0:02:25.280 --> 0:02:28.680 to one of Justice Prior's hypotheticals by saying, that's really 0:02:28.720 --> 0:02:34.640 helpful laughter from those who know Justice Briar's hypothetical as well. 0:02:35.200 --> 0:02:38.679 Joining me is Pat Parento, a professor of environmental law 0:02:38.760 --> 0:02:41.839 at Vermont Law School. Pat, what's at stake in this 0:02:41.880 --> 0:02:46.600 case When you're talking about the electricity sector that represents 0:02:46.639 --> 0:02:50.839 about a third of our total greenhouse gas emissions, So 0:02:51.080 --> 0:02:54.359 it's incredibly important to regulate that sector and get those 0:02:54.400 --> 0:02:57.480 emissions down. And within that sector, you know, the single 0:02:57.560 --> 0:03:01.640 most important category, of course, is coal fired power plants. 0:03:01.639 --> 0:03:05.240 So this case West Virginia versus e p A, no 0:03:05.400 --> 0:03:08.600 surprise West Virginia being a huge coal state still even 0:03:08.639 --> 0:03:11.679 though coal is dying there, it's all about whether e 0:03:11.840 --> 0:03:16.119 p A has authority to impose the kinds of controls well, 0:03:16.400 --> 0:03:22.000 a system of controls that will significantly bring those plants 0:03:22.040 --> 0:03:25.560 into compliance with the Clean Air Act and with President 0:03:25.600 --> 0:03:30.720 Biden's avowed pledge to make the electricity sector carbon free. 0:03:32.200 --> 0:03:35.160 So there's a lot writing on this and beyond the 0:03:35.160 --> 0:03:38.720 greenhouse gas and the climate change implications of the case. 0:03:39.000 --> 0:03:42.000 Depending on what the court does, it may sweep even 0:03:42.040 --> 0:03:46.120 more broadly. It may affect all of environmental law. So 0:03:46.680 --> 0:03:50.440 Republican led states, and as you mentioned, coal companies are 0:03:50.520 --> 0:03:52.720 trying to head off an e p A rule that 0:03:53.080 --> 0:03:56.560 isn't even on the books yet. That's right. Originally, the 0:03:56.560 --> 0:04:00.200 Obama administration proposed something called the Clean Power Plant and 0:04:00.360 --> 0:04:02.760 it had three different components. It was gonna make plants 0:04:02.800 --> 0:04:05.800 more efficient, it was going to require more reliance on 0:04:05.880 --> 0:04:09.000 natural gas plants, and it was going to require bringing 0:04:09.040 --> 0:04:12.560 on green energy, wind and solar more quickly. That plan 0:04:12.680 --> 0:04:15.200 never took effect. The Supreme Court put a stay on 0:04:15.320 --> 0:04:17.839 it before any court had even ruled on whether it 0:04:17.920 --> 0:04:20.039 was legal or not, and it never went into effect. 0:04:20.160 --> 0:04:23.279 And then subsequently, of course, the Trump administration proposed something 0:04:23.279 --> 0:04:26.240 called the Affordable Clean Energy Rule, which it wasn't but 0:04:26.400 --> 0:04:31.560 that rule would have only achieved maybe maybe one reduction 0:04:31.760 --> 0:04:34.359 in these emissions, so it was a meaningless rule. The 0:04:34.440 --> 0:04:41.040 DC Circuit Court vacated the Trump rule and sort of reinstated, 0:04:41.120 --> 0:04:43.880 or at least gave e p A the option of 0:04:43.960 --> 0:04:47.159 reinstating the Clean Power Plan. Ep A quickly said, we 0:04:47.200 --> 0:04:50.320 have no intention of reinstating the Clean Power Plan. We're 0:04:50.320 --> 0:04:53.520 certainly not going to keep the Affordable Clean Energy Rule 0:04:53.560 --> 0:04:55.880 on the books. We're going to start a new rulemaking, 0:04:56.080 --> 0:04:58.600 and that's where they are today. They promised the Court 0:04:58.720 --> 0:05:02.479 e p. A did that a new rule is forthcoming, right, 0:05:03.720 --> 0:05:06.320 you know, it's in the mail sort of government promise. 0:05:06.440 --> 0:05:09.560 But no, they did say they anticipate promulgating a new 0:05:09.640 --> 0:05:12.279 rule before the end of the year. So you're right. 0:05:12.400 --> 0:05:16.240 At the current time, there is no rule on the books. 0:05:16.240 --> 0:05:19.920 Nobody is required to do anything, which of course raises 0:05:19.960 --> 0:05:22.760 the question why in the world the Court take the case. 0:05:23.360 --> 0:05:27.520 My question, there's no case or controversy is there not 0:05:27.600 --> 0:05:29.719 to my way of thinking. But the majority of the 0:05:29.720 --> 0:05:34.000 Court disagrees. They're clinging to the idea that because e p. 0:05:34.160 --> 0:05:39.440 A didn't officially repeal the Clean Power Plan, it could 0:05:39.560 --> 0:05:41.919 spring back to life. That was a term that was 0:05:42.040 --> 0:05:47.279 used at some point. So that's the slender thread that 0:05:47.360 --> 0:05:49.880 the Supreme Court is using to say this case is 0:05:49.960 --> 0:05:55.240 still alive controversy. It really isn't. That's a fiction, but 0:05:55.360 --> 0:05:58.320 they're sticking to it. The majority, the conservative majority of 0:05:58.360 --> 0:06:02.320 the Court is saying, we think we still have jurisdiction 0:06:02.760 --> 0:06:04.839 and we're going to issue a ruling. Now, the question 0:06:04.880 --> 0:06:07.839 is what that ruling going to be. So the Bond 0:06:07.920 --> 0:06:11.440 Administration backing the e p A, and they have backing 0:06:11.480 --> 0:06:16.400 from environmental groups and power companies like Consolidated Edison, Exelon, 0:06:17.040 --> 0:06:21.279 and National Grid USA. Why is the power sector nervous 0:06:21.279 --> 0:06:25.760 about this? Yeah, because the power sector likes the idea 0:06:26.279 --> 0:06:30.880 of having flexible options to achieve the reductions, including things 0:06:30.880 --> 0:06:33.800 like emissions trading. Of course, the power industry has been 0:06:33.839 --> 0:06:37.160 the subject of emissions trading ever since the acid rain 0:06:37.279 --> 0:06:43.159 control program from so the industry groups are savvy. They 0:06:43.279 --> 0:06:47.280 understand that with that kind of a program they can 0:06:47.279 --> 0:06:50.800 figure out how to achieve emission reductions at the lowest costs. 0:06:51.040 --> 0:06:53.920 And they're afraid that the Supreme Court may go so 0:06:54.040 --> 0:06:57.640 far as to prohibit e p A from using emissions 0:06:57.640 --> 0:07:01.359 trading and averaging because West Virginia's argument is all that 0:07:01.480 --> 0:07:05.320 e p A can do is imposed controls at individual sources, 0:07:05.760 --> 0:07:11.080 one plant at a time, which is terribly inefficient and ineffective. 0:07:11.280 --> 0:07:13.280 It's not going to achieve the kind of reductions that 0:07:13.320 --> 0:07:15.760 are needed. But that's the whole point, right, I Mean, 0:07:15.960 --> 0:07:19.440 what West Virginia wants is a rule that's so weak 0:07:19.640 --> 0:07:23.080 it won't do anything. But the power company parties that 0:07:23.160 --> 0:07:25.800 joined with e p A are saying, we don't agree 0:07:25.800 --> 0:07:28.040 with that. We would much rather have E p A 0:07:28.560 --> 0:07:31.840 give us options, including, by the way, bringing on more 0:07:31.880 --> 0:07:35.160 wind and solar when that makes sense. So don't take 0:07:35.320 --> 0:07:39.240 things off the table, you know, don't necessarily force us 0:07:39.320 --> 0:07:42.760 to go green right away, but give us some options. 0:07:42.800 --> 0:07:46.640 That's what the companies want. The arguments were really long. 0:07:47.000 --> 0:07:51.280 Was there one issue that the justices were kicking around most? Yes, 0:07:51.400 --> 0:07:54.280 that's the major question doctrine. You know, the court has 0:07:54.280 --> 0:07:56.640 already used that twice this year. They struck down a 0:07:56.800 --> 0:08:00.840 rule putting a moratorium on evictions because of the CODE epidemic, 0:08:01.040 --> 0:08:04.040 and they said that the agency didn't have the authority 0:08:04.320 --> 0:08:06.880 because that was something the agency had never done before. 0:08:07.080 --> 0:08:11.440 And in another case, OSHA, the agency that regulates occupational 0:08:11.920 --> 0:08:16.040 exposure and health and safety concerns, also imposed a rule 0:08:16.200 --> 0:08:18.880 and the court struck that down, saying OSHA, you're not 0:08:18.960 --> 0:08:21.760 the health agency. You can't be writing a rule that 0:08:21.880 --> 0:08:26.120 regulates people's exposure to COVID in the workplaces. You can regulate, 0:08:26.400 --> 0:08:29.240 you know, the strength of ladders that people climb in 0:08:29.320 --> 0:08:31.760 performance of their duties, but you can't regulate the fact 0:08:31.760 --> 0:08:34.480 that they might be exposed to a deadly disease. You know. 0:08:34.720 --> 0:08:37.920 So the Court has already shown that it wants to 0:08:38.000 --> 0:08:42.160 wield this major question doctrine in a way that strikes 0:08:42.280 --> 0:08:45.800 down agency rules at the court. The conservative members of 0:08:45.800 --> 0:08:50.280 the Court believe are going too far, having major impacts 0:08:50.280 --> 0:08:52.800 on the nation's economy and so forth. But it's a 0:08:52.880 --> 0:08:54.840 rule they made up, you know, it doesn't come from 0:08:54.840 --> 0:08:58.560 the Constitution, and it's fairly recent. It's just within this 0:08:58.720 --> 0:09:02.080 era of the people that have joined the courts, Justice Roberts, 0:09:02.120 --> 0:09:06.680 Justice course, it's Justice Kavanaugh, now Justice Barrett, and formerly 0:09:06.760 --> 0:09:09.760 Justice A. Leado and Justice Thomas. They're all of the 0:09:09.880 --> 0:09:15.640 same mind about limiting agency authority. The so called administrative state. 0:09:15.800 --> 0:09:18.520 Is that what this is about. That's what this is about. 0:09:18.559 --> 0:09:20.360 I mean, the Court would never use that term, but 0:09:20.400 --> 0:09:24.400 that's what it's about. It's a suspicion that agencies who 0:09:24.400 --> 0:09:28.280 are quote unelectric bureaucrats, you know, taking irrigating a lot 0:09:28.320 --> 0:09:31.440 of power, and they don't like that. The conservatives believe, 0:09:31.800 --> 0:09:34.600 I think that those are things that Congress should be doing. 0:09:34.960 --> 0:09:38.480 And I suppose in a perfect world that's right. But 0:09:38.679 --> 0:09:42.319 what happens when Congress isn't doing that, which is exactly 0:09:42.320 --> 0:09:45.559 where we are today. So the major question doctrine is 0:09:45.600 --> 0:09:49.720 supposed to kick the issues back to Congress and forced 0:09:49.800 --> 0:09:54.079 Congress to be more explicit about the authority that they're granting. Well, 0:09:54.120 --> 0:09:57.360 that sounds good, but we know that in environmental law 0:09:57.440 --> 0:10:01.559 we have not seen updates. Who are major environmental laws 0:10:01.640 --> 0:10:04.000 like the Clean Air Act, like the Clean Water Act, 0:10:04.080 --> 0:10:08.040 like the Endangered Species Act. We haven't seen updates in decades, 0:10:08.280 --> 0:10:11.320 and there's no likelihood that we will. So this notion 0:10:11.400 --> 0:10:15.000 of quote kicking it back to Congress is illusory. What 0:10:15.120 --> 0:10:17.640 it really means is there won't be any rule and 0:10:17.679 --> 0:10:20.960 there won't be any protection. Did you see enough votes 0:10:21.040 --> 0:10:24.640 there to head off the e p A rule? No? No. 0:10:25.080 --> 0:10:27.360 I was hopeful that all of the members of the Court, 0:10:27.360 --> 0:10:30.000 when they really focused on what they were being asked 0:10:30.040 --> 0:10:32.040 to do in light of the fact there is no 0:10:32.200 --> 0:10:36.440 rule to review, might reconsider having taken the case. But 0:10:36.559 --> 0:10:38.760 there was no indication they were going to do that. 0:10:38.840 --> 0:10:41.080 So I'm convinced they are going to write a decision. 0:10:41.320 --> 0:10:43.439 The real question is what are they going to tell 0:10:43.559 --> 0:10:45.400 the e p A. I mean, the Court is not 0:10:45.520 --> 0:10:48.560 a rule making body. I mean the conservatives would be 0:10:48.559 --> 0:10:51.520 the first to say that's a violation of separation of powers. 0:10:51.559 --> 0:10:55.320 That's outside our lane. We're not supposed to write rules, 0:10:55.320 --> 0:10:59.400 we're supposed to review rules. So that's my question is 0:10:59.640 --> 0:11:02.520 what is factuty? Are they gonna say? Are they going 0:11:02.559 --> 0:11:05.360 to tell the EPA you can do these things but 0:11:05.480 --> 0:11:08.840 not those things? And on what basis would they do that. 0:11:09.440 --> 0:11:12.680 They can't say e p A has no power to 0:11:12.720 --> 0:11:16.000 do anything because of Massachusetts versus e p A. They've 0:11:16.040 --> 0:11:19.720 already decided e p A has the authority, and they 0:11:19.800 --> 0:11:22.839 actually said e p A has the duty to regulate 0:11:23.000 --> 0:11:26.679 once e p A has found that these emissions pose 0:11:26.720 --> 0:11:29.360 a danger the public health and welfare, which e p 0:11:29.480 --> 0:11:32.439 A has. The Supreme Court had a chance to review 0:11:32.840 --> 0:11:36.120 the endangerment finding some time ago and decided not to 0:11:36.200 --> 0:11:38.680 do that. And then yet in another case, the A 0:11:38.840 --> 0:11:43.720 e p versus Connecticut case, the Supreme Court specifically cited 0:11:44.040 --> 0:11:47.439 the provision that's that issue in the West Virginia case 0:11:47.800 --> 0:11:51.480 as the source of e p AS authority to regulate 0:11:51.559 --> 0:11:54.640 emissions from power plants. So I think the Court is 0:11:54.679 --> 0:11:57.360 sort of in a box. They've issued opinions saying e 0:11:57.520 --> 0:12:00.120 p A has a duty to regulate these emissions and 0:12:00.400 --> 0:12:03.360 a specific provision from which to do that. And so 0:12:03.440 --> 0:12:05.200 now what are they going to say about it? They're 0:12:05.200 --> 0:12:08.839 going to say, well, now we're gonna put some significant boundaries. 0:12:09.160 --> 0:12:12.280 There was an argument from West Virginia and from the 0:12:12.320 --> 0:12:15.800 coal industry parties that the rule should be you can't 0:12:15.840 --> 0:12:19.920 regulate beyond the fence line. And a lot of my colleagues, 0:12:19.960 --> 0:12:22.720 a lot of lawyers out there, thought that might be 0:12:23.240 --> 0:12:27.160 the rationale that the court might grab and use. But 0:12:27.320 --> 0:12:30.040 there was a lot of skepticism towards that, even from 0:12:30.080 --> 0:12:33.640 Justice Thomas right off the bat, saying that rule doesn't 0:12:33.640 --> 0:12:36.560 make any sense to me. So I don't think they're 0:12:36.559 --> 0:12:39.160 going to be able to use something simplistic like you 0:12:39.200 --> 0:12:43.040 can't regulate beyond the fence line. But again, what exactly 0:12:43.080 --> 0:12:45.199 are they going to say, and we won't know until 0:12:45.280 --> 0:12:49.840 June explain that you can't regulate beyond the fence line? 0:12:49.880 --> 0:12:53.520 What that means on the ground, Yeah, what that would 0:12:53.520 --> 0:12:57.440 mean is you go to each individual plant and you 0:12:57.520 --> 0:13:00.880 try to determine what control you know, the the typical 0:13:01.400 --> 0:13:05.119 Clean Air Act controls are things like scrubbers, right, That's 0:13:05.160 --> 0:13:08.760 that's how we scrub out pollutants like mercury and other 0:13:09.559 --> 0:13:13.720 air pollutants, or baghouse filters, you know, another end of 0:13:13.920 --> 0:13:19.040 stack kind of control for greenhouse gases. That doesn't work. 0:13:19.160 --> 0:13:22.400 Baghouses don't work. Scrubbers don't worry. That doesn't work. So 0:13:22.559 --> 0:13:25.800 the only thing you can do with carbon emissions is 0:13:25.840 --> 0:13:29.800 either capture them right and to question them. You know, 0:13:29.920 --> 0:13:34.400 that's carbon capture and sequestration that's incredibly expensive. I mean, 0:13:35.080 --> 0:13:38.120 that's the irony actually of West Virginia's argument. If you 0:13:38.160 --> 0:13:42.400 take it to its logical extreme, it would mean every 0:13:42.440 --> 0:13:45.440 single coal fired power plant out there would have to 0:13:45.520 --> 0:13:51.320 install incredibly expensive carbon capture and sequestration systems, not just 0:13:51.640 --> 0:13:56.440 one technology and the entire system, and that probably alone 0:13:56.800 --> 0:13:59.840 would put those plants out of business. So, you know, 0:14:00.080 --> 0:14:03.199 that kind of an argument of looking at the individual 0:14:03.840 --> 0:14:09.000 source and looking for sort of conventional technologies just really 0:14:09.040 --> 0:14:13.160 doesn't work for carbon um What the Trump administration said 0:14:13.240 --> 0:14:17.000 you could do is improve the heat rate efficiency of 0:14:17.080 --> 0:14:20.200 the individual plants. In fact, that's what Trump said is 0:14:20.240 --> 0:14:22.960 all you can do. But the problem with that is 0:14:23.400 --> 0:14:27.320 if you make plants run more efficiently, guess what, they're 0:14:27.320 --> 0:14:30.360 going to run more. They're going to run longer and 0:14:30.440 --> 0:14:33.440 that's going to put more emissions into the air long term. 0:14:33.560 --> 0:14:38.800 So that's a nonsensical frankly, a strategy by itself. It 0:14:38.920 --> 0:14:42.680 might make sense in combination, right with some other strategies 0:14:42.680 --> 0:14:46.680 to actually reduce emissions, but by itself just improving the 0:14:46.720 --> 0:14:49.880 efficiency these plants is not going to move the needle 0:14:50.240 --> 0:14:53.640 on carbon pollution. A lot of people were looking at 0:14:53.680 --> 0:14:57.360 the three newest justices to see, you know what they said. 0:14:57.400 --> 0:15:02.520 But Justice Neil i And only asked one question, and 0:15:03.120 --> 0:15:06.920 Justices Brett Kavanaugh and Amy Coney Barrett didn't ask that 0:15:06.960 --> 0:15:11.320 many questions in this long argument. But did Barrett seem 0:15:11.440 --> 0:15:16.960 to be considering sort of a middle ground position? I think. 0:15:17.640 --> 0:15:20.960 I think if there's any hope here to retain some 0:15:21.120 --> 0:15:24.040 authority for e p A to write a meaningful rule, 0:15:24.440 --> 0:15:28.400 it lies with Chief Justice Roberts, and there's a good 0:15:28.440 --> 0:15:31.880 likelihood actually that he may write the opinion in this case, 0:15:32.200 --> 0:15:36.520 and with Justice Barrett, because yes, she was cautious, and 0:15:36.600 --> 0:15:39.240 she didn't tip her hand at all about which way 0:15:39.280 --> 0:15:42.000 she was leaning, and she asked the kinds of questions 0:15:42.120 --> 0:15:45.520 of the petitioners, questions that would suggest she wasn't buying 0:15:45.560 --> 0:15:49.640 everything they were saying even Justice Kavanaugh, who when he 0:15:49.720 --> 0:15:53.280 was on the d C circuit, he heard arguments challenging 0:15:53.320 --> 0:15:56.080 the Clean Power Plan, and he made it pretty clear 0:15:56.160 --> 0:15:58.800 he had very little used for the Clean Power Plan 0:15:59.160 --> 0:16:02.400 and was prepared to use this major question doctrine to 0:16:02.440 --> 0:16:06.480 strike it down. But when he was asking questions, particularly 0:16:06.480 --> 0:16:09.520 of the lawyers arguing for the industry position, he was 0:16:09.560 --> 0:16:14.040 acknowledging that emissions trading and you know, some of these 0:16:14.080 --> 0:16:18.840 more flexible approaches did make sense. And in some of 0:16:18.880 --> 0:16:23.000 his earlier opinions, you know, he's shown a keen interest 0:16:23.000 --> 0:16:25.640 in looking at the costs and benefits of various ways 0:16:25.680 --> 0:16:29.640 of regulating. So I think he's going to hesitate to 0:16:29.840 --> 0:16:33.400 join in an opinion that would take away that kind 0:16:33.440 --> 0:16:36.440 of authority for epated shape a more flexible rules. So 0:16:36.720 --> 0:16:41.320 there's enough, I think play among the justices here that 0:16:41.680 --> 0:16:43.560 maybe the e p A could come out of this 0:16:43.680 --> 0:16:46.240 case not with everything they would like to have, but 0:16:46.320 --> 0:16:49.040 with at least enough to write a decent rule. That's 0:16:49.040 --> 0:16:51.480 what we're hoping. Those of us who want to see 0:16:51.760 --> 0:16:55.760 us make some progress towards controlling carbon pollution are hoping 0:16:56.240 --> 0:16:59.000 the Court will pause before it writes something that just 0:16:59.080 --> 0:17:02.280 strips p A of any meaningful authority to do that. 0:17:03.200 --> 0:17:05.399 Did it seem as if it was particularly just as 0:17:05.400 --> 0:17:10.679 Aldo was against the e p A. Here, Yes, Justice 0:17:10.720 --> 0:17:14.320 Aldo has been you know, he was the same way 0:17:14.400 --> 0:17:16.720 with the Maui and Clean Water Act case. He descended 0:17:16.760 --> 0:17:19.320 a long, long distent. His descent was longer than the 0:17:19.359 --> 0:17:24.280 majority opinion that Justice Brier wrote, you know, um saying 0:17:24.320 --> 0:17:28.440 that yes, under certain circumstances, dp A can regulate discharges 0:17:28.480 --> 0:17:31.800 through groundwater that affect lakes and rivers and so forth. 0:17:32.040 --> 0:17:34.560 Alito said, no, they don't. They don't have that authority period. 0:17:34.640 --> 0:17:39.520 So so Alito's questions were as typically, um, you know, 0:17:40.520 --> 0:17:42.520 a little bit over the top because of what Alado 0:17:42.640 --> 0:17:45.639 was saying. You know, if we if we grant e 0:17:45.840 --> 0:17:50.080 p A this broader authority that e p A wants, 0:17:50.960 --> 0:17:53.399 where does it lead? I mean, does it lead to 0:17:53.440 --> 0:17:57.320 e p A regulating everybody's house and telling everybody what 0:17:57.400 --> 0:17:59.919 kind of energy they could use? And that's ridiculous, right, 0:18:00.280 --> 0:18:04.800 But that is the way that Alito thinks about agency authority. 0:18:04.880 --> 0:18:09.199 He worries about the abuse of authority. That's where he 0:18:09.320 --> 0:18:12.520 always goes with his question. He sort of takes the 0:18:12.600 --> 0:18:17.160 extreme example of what a kind of renegade agency would do. 0:18:17.640 --> 0:18:20.640 You know, if we're not really careful in controlling their authority, 0:18:20.920 --> 0:18:24.800 they're likely to go overboard. That's where he was coming from. 0:18:24.840 --> 0:18:28.800 And the liberal justices were supportive of the e P 0:18:28.880 --> 0:18:33.200 a sort of, but I think they knew that, they 0:18:33.240 --> 0:18:35.480 knew what the writing on the wall was. They didn't 0:18:35.480 --> 0:18:39.240 fight on what we call the justiciability question there. There's 0:18:39.240 --> 0:18:42.120 all kinds of reasons why the court shouldn't take this case, 0:18:42.160 --> 0:18:45.800 for example standing. You know, how many times do environmental 0:18:45.840 --> 0:18:48.960 groups groups get thrown out of court because they can't 0:18:48.960 --> 0:18:52.440 adequately prove standing. They can't prove how they're hurt by 0:18:52.440 --> 0:18:55.040 what the agency is doing or not doing. There's no 0:18:55.160 --> 0:18:58.879 hurt here at all. Okay, so nobody's being required to 0:18:58.920 --> 0:19:02.000 do anything, right, So you would have thought the liberal 0:19:02.000 --> 0:19:04.720 members of the court would have been hammering on the 0:19:04.800 --> 0:19:09.120 standing question. Nothing almost nothing on that. In fact, Corsage 0:19:09.480 --> 0:19:12.119 was the only one to raise the standing question and 0:19:12.200 --> 0:19:14.160 he didn't press it at all, Like he said, one 0:19:14.280 --> 0:19:17.560 question and he was done. So no, you know, Justice 0:19:17.640 --> 0:19:22.160 Brier actually surprising, well maybe not surprisingly. He's an administrative 0:19:22.200 --> 0:19:26.399 law professor, so he he was quibbling over why e 0:19:26.560 --> 0:19:30.639 p A hadn't actually repealed the clean Power Plan. They 0:19:30.920 --> 0:19:33.760 you know, the e p A probably in hindsight, should 0:19:33.760 --> 0:19:35.960 have done that right uh, and taking it off the 0:19:35.960 --> 0:19:39.680 board completely. But because by leaving it sort of out there, 0:19:40.119 --> 0:19:43.439 even though there they have no intention of proceeding with it, 0:19:43.440 --> 0:19:45.879 it gave it gave the majority of the court, the 0:19:45.920 --> 0:19:49.959 conservatives on the court a handle on the case. And 0:19:50.000 --> 0:19:54.480 Briar was was was quizzing the Solicitor General on why 0:19:54.520 --> 0:19:57.760 didn't e p A just take that rule off the books? 0:19:57.800 --> 0:20:00.480 That was about all you got from the liberal a side. 0:20:00.960 --> 0:20:03.640 Talk about the possibilities of a ruling here. You could 0:20:03.640 --> 0:20:06.800 have them dismiss the case. You could have them issue 0:20:06.840 --> 0:20:10.119 a narrow ruling a broad ruling. What are the possibilities 0:20:11.000 --> 0:20:14.280 they won't dismiss the case. That's pretty clear now. It 0:20:14.320 --> 0:20:17.119 does come down to a narrow or broad ruling, and 0:20:17.200 --> 0:20:20.560 it does come down to will they call out some 0:20:20.720 --> 0:20:24.399 things that would be permissible. For example, could they say, 0:20:24.680 --> 0:20:29.440 you know, e e p A can consider a regulation 0:20:29.640 --> 0:20:33.880 that extends beyond the fence line, but not one that 0:20:33.920 --> 0:20:38.640 tries to restructure the country's energy system, you know, not 0:20:38.760 --> 0:20:43.320 one that that requires use of renewable energy, not one 0:20:43.440 --> 0:20:47.000 that tries to regulate the way the grid system of 0:20:47.040 --> 0:20:51.000 the country works and dispatch you know, gas power or 0:20:51.080 --> 0:20:54.919 clean power something like that. Those were things that the 0:20:54.960 --> 0:20:59.760 Clean Power Plan included as options. They weren't necessarily man 0:20:59.800 --> 0:21:02.639 the eights, but they were options. And it may be 0:21:03.600 --> 0:21:07.280 that the opinion in this case kind of goes through 0:21:07.400 --> 0:21:12.040 what the Clean Power Plan was considering and knocks individual 0:21:12.040 --> 0:21:14.800 pieces of it out and then leaves it to e 0:21:14.960 --> 0:21:18.280 p A to decide what can it do once the 0:21:18.320 --> 0:21:21.080 court has said what it can't do. I still have 0:21:21.240 --> 0:21:25.120 trouble imagining how an opinion like that reads and how 0:21:25.160 --> 0:21:28.440 you would write it. But that's maybe what we'll see 0:21:28.600 --> 0:21:31.840 is is kind of an opinion that limits e p 0:21:32.040 --> 0:21:34.560 as authority at the boundary, at the sort of the 0:21:34.560 --> 0:21:38.240 outer edge of its its potential authority, but leaves enough 0:21:38.760 --> 0:21:40.399 that e p A can figure out a rule that 0:21:40.440 --> 0:21:43.359 will make do some good. Thanks for those insights, Pat. 0:21:43.720 --> 0:21:48.280 That's Professor Pat Parento of the Vermont Law School. Our 0:21:48.359 --> 0:21:52.720 interests are maintained the strongest unified economic impact campaign that 0:21:53.880 --> 0:21:56.400 on food and in all history, and I think we're 0:21:56.440 --> 0:21:59.200 well on the way to doing that. President Joe Biden 0:21:59.320 --> 0:22:03.439 says they is determined to continue its economic assault on 0:22:03.600 --> 0:22:07.800 Russian President Vladimir Putin over his war in Ukraine. The 0:22:07.920 --> 0:22:11.879 latest round targets Russia's wealthy as oligarchs and their families 0:22:11.920 --> 0:22:15.240 with direct sanctions, adding to the ever growing list of 0:22:15.320 --> 0:22:18.800 sanctions against Russia, all in the hope that financial pain 0:22:18.960 --> 0:22:22.000 will force Putin to end his war. The rush of 0:22:22.080 --> 0:22:25.560 sanctions means that lawyer's phones are ringing off the hook 0:22:25.800 --> 0:22:28.720 with calls from clients struggling to figure out how to 0:22:28.800 --> 0:22:31.560 deal with them. Joining me as someone who's been taking 0:22:31.600 --> 0:22:36.760 those calls, Chase Knicki, a partner, Cleary Gottlieb start by 0:22:36.800 --> 0:22:41.840 telling us how significant the sanctions are in size and scope. 0:22:42.200 --> 0:22:46.040 So the sanctions that we've seen to date are somewhat 0:22:46.240 --> 0:22:51.320 unprecedented from a sanctions perspective, in the sense of, you know, 0:22:51.440 --> 0:22:55.840 a country with such economic ties, with countries like the 0:22:55.920 --> 0:22:59.040 United States, in the UK and the European Union being 0:22:59.080 --> 0:23:03.080 subject to the level in this amount of sanctions, largely 0:23:03.200 --> 0:23:07.600 targeting in many ways the Russian financial sector, including major 0:23:07.720 --> 0:23:11.800 Russian financial and institutions, as well as most recently the 0:23:11.880 --> 0:23:15.240 Central Bank of Russia and those sanctions, from what we're 0:23:15.600 --> 0:23:20.000 hearing from clients and otherwise hearing in the market, are 0:23:20.119 --> 0:23:23.879 having the intended effect of really isolating Russia from an 0:23:23.920 --> 0:23:28.240 economic perspective. Chase, would you say this situation is different 0:23:28.400 --> 0:23:31.879 in that usually you have a slower ramp up of 0:23:31.960 --> 0:23:36.399 sanctions over time, but here you have several stages in 0:23:36.440 --> 0:23:41.720 a compressed period of time, and more escalations are possible. Exactly, 0:23:41.760 --> 0:23:43.639 That's right, and it used to be the case. You know, 0:23:43.680 --> 0:23:46.680 look at the programs that apply to countries like Iran 0:23:46.960 --> 0:23:50.040 and even North Korea and Cuba. Those countries are just 0:23:50.080 --> 0:23:53.320 completely off limits for US persons. The US government, at 0:23:53.400 --> 0:23:55.720 least in recent years, hasn't really been taking that kind 0:23:55.760 --> 0:23:59.560 of broader, comprehensive approach, but instead is imposing at least 0:23:59.560 --> 0:24:03.640 what I call all sort of smart sanctions, narrowly tailored sanctions. 0:24:03.680 --> 0:24:06.720 You typically do see those in a more piecemeal way, 0:24:07.119 --> 0:24:09.680 where you know a sanction will be imposed, the US 0:24:09.720 --> 0:24:12.280 government will see whether that sanction is having the impact 0:24:12.280 --> 0:24:14.359 that they wanted to, and then if it's not, an 0:24:14.400 --> 0:24:17.280 additional sanction might be imposed. But you're absolutely right here. 0:24:17.280 --> 0:24:19.960 In the last week or so with the Russia stanctions program, 0:24:20.200 --> 0:24:24.360 it's just been a deluge of individual sanctions but all 0:24:24.440 --> 0:24:27.040