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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. California is on

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Speaker 1: a collision course with the Trump administration over auto efficiency regulations.

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Speaker 1: Couldn't lead the White House to try to revoke the

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Speaker 1: state's power to set its own limits on air pollution,

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Speaker 1: joining me as Ann Carlson, environmental law professor at u

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Speaker 1: c l A Law School, and Congress gave California the

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Speaker 1: authority to set pollution standards that are tougher than those

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Speaker 1: of the federal government in the Clean Air Act about

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Speaker 1: five decades ago. What are the limits on the e

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Speaker 1: p a's power to cut off that authority? Well, EPA

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Speaker 1: has to give California permission through a waiver process to

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Speaker 1: issue standards that are tougher than the federal standards. It's

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Speaker 1: already done that for fuel economy standards and greenhouse gas

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Speaker 1: mission standards through and so the big question is can

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Speaker 1: the e p A revoke that permission? And there is

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Speaker 1: no explicit mechanism for the e p A to revoke

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Speaker 1: a waiver. Well, there is no explicit mechanism, that's right.

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Speaker 1: I think that the EPA administrator, if he chooses to

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Speaker 1: provoke the waiver, would argue that there's an implicit authority

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Speaker 1: that given that they have to give permission, they also

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Speaker 1: can take away that permission. I think that's going to

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Speaker 1: be a hotly contected question in court, though, So that

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Speaker 1: would lead to the an e p A action like

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Speaker 1: that would lead to a court fight that would take years,

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Speaker 1: and the industry rules would be uncertain for that time. Well,

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Speaker 1: it's a very good question. It would certainly lead to

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Speaker 1: a big court fight. California has already indicated that it

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Speaker 1: will sue if the federal government tries to provoke the

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Speaker 1: permission that it's been granted. I think the question about

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Speaker 1: whether the California standards remain in place during a court

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Speaker 1: fight would be an open one, and I think a

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Speaker 1: court might well allow California to move forward with its

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Speaker 1: own standards while the question of the waiver is decided.

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Speaker 1: The e p A is facing an April first deadline

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Speaker 1: to decide whether the Obama era greenhouse gas standards for

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Speaker 1: cars and light trucks um remain in effect from I

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Speaker 1: think to where does that decision stand? Do we know?

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Speaker 1: We don't know yet, although we have some indication that

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Speaker 1: the UH proot e p A is going to loosen

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Speaker 1: the standards of the Obama administration set and I think

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Speaker 1: they're going to do it. And then the question is

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Speaker 1: California has already said it's gonna implement those standards even

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Speaker 1: if the federal government rolls its back, and then the

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Speaker 1: big question will be will they let California do that

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Speaker 1: or will they try to revoke California's waivers? Are they

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Speaker 1: negotiate sations going on between California and the e p A.

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Speaker 1: As I understand that there have been negotiations going on.

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Speaker 1: One thing that California would like is permission to issue

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Speaker 1: standards for model years five and forward as it tries

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Speaker 1: to reduce its greenhouse gas emissions. But I understand that

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Speaker 1: those negotiations have fallen apart. Scott Pruitt is in the

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Speaker 1: press yesterday saying that it doesn't look like he's interested

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Speaker 1: in and and forward years, and California is indicated it's

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Speaker 1: going to move forward with its standards. New York and

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Speaker 1: Washington and several other states that account for about a

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Speaker 1: third of US vehicle sales have adopted California's standards. So

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Speaker 1: where does that leave them? So they can follow California standards,

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Speaker 1: or they can follow federal standards. They can't put together

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Speaker 1: their own standards. So as long as California standards are

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Speaker 1: in place, they are free to choose to follow the

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Speaker 1: California standards. Of course, if e p A tries to

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Speaker 1: revoke California's permission, then that leaves all of those states

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Speaker 1: in legal limbo again. I think California will fight hard

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Speaker 1: in court and will probably be joined by New York

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Speaker 1: and Washington and Oregon and the other states that have

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Speaker 1: chosen to follow California's lead. Is it Is it smart

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Speaker 1: for these auto manufacturers in the long run to to

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Speaker 1: lower the standards when they try to reseal their car

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Speaker 1: resale car value, and also, you know, international standards come

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Speaker 1: into play. Honestly, I don't understand the position of the

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Speaker 1: auto industry in this battle. We've seen over and over

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Speaker 1: again that the auto industry tries to fight these standards

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Speaker 1: and fight against technological change, environmental pressure, etcetera. We've got

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Speaker 1: China for example, announcing that it's going to try to

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Speaker 1: implement a zero emission vehicle goal over the course the

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Speaker 1: next ten or fifteen years. Same thing is happening in Europe.

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Speaker 1: Japan now has more electric vehicle chargers than it does

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Speaker 1: gas stations, and so the trend is in the direction

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Speaker 1: of reducing greenhouse gas emissions to zero. The way to

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Speaker 1: do that is to increase fuel economy and to keep

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Speaker 1: tightening those standards, not to reduce it. Well, this was

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Speaker 1: one of President Barack Obama's most concrete environmental achievements. Some say,

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Speaker 1: and um, the Trump administration has been trying to unravel

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Speaker 1: a lot of his environmental achievements. Is this part of that?

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Speaker 1: In about a minute? Absolutely, this is part of that.

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Speaker 1: In fact, in my view, the auto emission standards are

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Speaker 1: the most important climate change policy that the Obama administration issued,

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Speaker 1: even more important than the standards for power plants. And

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Speaker 1: that's because, unlike in the electricity sector, we're seeing increases

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Speaker 1: in greenhouse gas missions coming from the transportation sector for

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Speaker 1: a couple of reasons. One because gas prices have been

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Speaker 1: going down, and too because the auto manufacturers have been

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Speaker 1: pushing hard to sell bigger vehicles SUVs and so forth,

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Speaker 1: and so if this gets unraveled, we're going to see

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Speaker 1: an even steeper increase in greenhouse gas missions in the

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Speaker 1: transportation sector. Just briefly, and in about thirty seconds, how

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Speaker 1: much of Obama's environmental legacy is left? If you have

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Speaker 1: a number, Oh, that's such a hard question, because there

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Speaker 1: are a lot of places where the Trump administration is

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Speaker 1: not succeeding in ruling back rolling back Obama era rules,

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Speaker 1: and so we're gonna see a lot of court fights

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Speaker 1: to protect what the Obama administration does. I'm sorry, did

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Speaker 1: There are also some really big rules that stayed in place,

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Speaker 1: including reducing toxic commissions from power plants and that sort

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Speaker 1: of thing. So it's really really hard to put a

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Speaker 1: number on that, but I think you know, it is

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Speaker 1: safe to say that the Trump administration is doing everything

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Speaker 1: it can to roll back the major initiatives, especially on

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Speaker 1: climate change. Well, thank you so much for your insights.

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Speaker 1: That's and Carlson, environmental law professor at u c l

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Speaker 1: A Law School. States are going in radically different directions

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Speaker 1: over whether to support President Trump's crackdown on undocumented immigrants

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Speaker 1: to states that are diametrically opposite our Texas with its

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Speaker 1: anti sanctuary law and California with its pro sanctuary law,

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Speaker 1: and the Fifth Circuit Court of Appeals has now given

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Speaker 1: Texas permission to enforce much, though not all, of its

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Speaker 1: controversial sanctuary city ban. Joining me is Leon Fresco of

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Speaker 1: Hollandon Knight Leon. The Trump administration helped defend Texas ban

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Speaker 1: in court. How big a victory is this for the

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Speaker 1: Trump administration. There's no other way to couch it other

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Speaker 1: than to say that they dramatically enormous victory for the

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Speaker 1: Trump administration in the sense that they now have cleared

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Speaker 1: the field for states like Texas to pass these kinds

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Speaker 1: of laws that basically will say, if they are able

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Speaker 1: to pass them, that cities within a state cannot choose

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Speaker 1: to uh say that they're not going to coop a

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Speaker 1: with requests from Immigration and Customs enforcement when they ask

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Speaker 1: for information about people in their custody. You mentioned some

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Speaker 1: of it there, But how what did the appeals court

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Speaker 1: ruling give Texas the ability to do? Give us the

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Speaker 1: high points? Sure so, the provision that Texas pass, which

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Speaker 1: was known as SB four, had four basic principles to it,

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Speaker 1: and the four basic principles that it had was that

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Speaker 1: it would say that if a city tried to say

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Speaker 1: to its individuals that its officers could not ask about

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Speaker 1: immigration information, could not cooperate with a request for immigration

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Speaker 1: information from ICE, or did not work, did not comply

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Speaker 1: with what are called detainer requests, which is where ICE

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Speaker 1: asked a local uh a local police office to say, hey,

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Speaker 1: do you mind holding this person until we find out

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Speaker 1: if there's someone we can deport, and then we'll come

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Speaker 1: and pick them up. That what the Texas statute said

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Speaker 1: is if a c the doesn't do all of this

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Speaker 1: level of cooperation, that the actual officers who are ordering

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Speaker 1: this kind of non cooperation can be fined or even

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Speaker 1: can be subject to criminal penalties. And that was that

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Speaker 1: had been enjoined by a lower court. But now all

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Speaker 1: of that's been viewed as fine. There's one provision that

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Speaker 1: that side of that, which if you want to talk

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Speaker 1: about we can that's still been enjoyed. But other than that,

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Speaker 1: all of this cooperation that Texas has mandated cities to

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Speaker 1: do with ICE is now required. The opinion rejected the

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Speaker 1: argument that immigration policy should be left to Congress, not

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Speaker 1: the States. Does that lead to the conclusion that California's

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Speaker 1: pro sanctuary legislation should be upheld. Well, it's it's it's

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Speaker 1: a bit complicated because what the opinion said was that

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Speaker 1: it's Congress. If all the states and the cities have

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Speaker 1: been making arguments around the court that there's this Tenth

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Speaker 1: Amendment issue that Congress cannot require cooperation but it's voluntary,

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Speaker 1: then if a state, in a city like California is

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Speaker 1: going to say, well, you shouldn't require us to do anything,

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Speaker 1: it's voluntary, then that eliminates the argument that the plainests

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Speaker 1: in Texas made that this is required by statute, because

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Speaker 1: the point that Texas cannot require this, because the point

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Speaker 1: is it's the cities and the state's choices to make.

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Speaker 1: Then this is the state. This is the choice Texas made,

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Speaker 1: and so that choice has to be respected. And so

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Speaker 1: the court did kind of rub that a little bit

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Speaker 1: in the face of the plaintifts to say, you can't

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Speaker 1: have it both ways. You can't say a state like

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Speaker 1: California can't be forced to do it, and then a

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Speaker 1: state like Texas doesn't have the option to agree to

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Speaker 1: do it, to do this cooperation. And so that's why, uh,

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Speaker 1: this is a particularly tough pill to swallow for the plaintiffs.

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Speaker 1: The Court said, future challengers of this Texas ban will

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Speaker 1: have to violate the ban and suffer the consequences to

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Speaker 1: gain the legal right to sue. Considering the outrage of

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Speaker 1: many when this Texas law was passed, do you expect

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Speaker 1: challenges to deliberately violate the band to get into court?

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Speaker 1: I think that I think that it may be possible

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Speaker 1: that people will look for extreme cases, but I think

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Speaker 1: at the end of the day, based on some conversations

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Speaker 1: I've had with some of the folks involved in this litigation,

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Speaker 1: people are pretty uh concerned about just winding this down

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Speaker 1: and not sort of allowing this impetus for for the

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Speaker 1: Supreme Court to say it's fine sort of to live

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Speaker 1: to fight another day and hope that other states don't

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Speaker 1: do what Texas has done here and American Civil Liberties

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Speaker 1: Union lawyer vowed to keep fighting this, possibly with an

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Speaker 1: eventual appeal to the Supreme Court. Are you saying that

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Speaker 1: the Supreme Court might take this case or might not? Well?

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Speaker 1: I think the I think the problem is I think

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Speaker 1: that you know, there's there are ne jerk comments that

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Speaker 1: people make right after they lose a lawsuits, but right now.

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Speaker 1: The sort of discussion is is this the right time

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Speaker 1: to in a case like this to the Supreme Court,

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Speaker 1: even that the Supreme Courts made a couple of other

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Speaker 1: rulings already in the immigration context that have been promoting

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Speaker 1: things like detention and now some aspects of the travel,

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Speaker 1: then that maybe this is not the right time to

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Speaker 1: bring this Texas case the Supreme Court and instead to

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Speaker 1: let the sort of California cases happen and then you know,

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Speaker 1: at another at another time later somebody else could challenge

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Speaker 1: the Texas case again and bring it up if you know,

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Speaker 1: if if there's better inclination from the court, that something

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Speaker 1: might be welcome. Here. Let's turn briefly to those California cases.

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Speaker 1: The Trump administration is suing California over three laws that

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Speaker 1: block local officials basically from complying with federal immigration directives.

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Speaker 1: Who has the better side of that flightly on. That

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Speaker 1: is a very very interesting case. That case is for

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Speaker 1: sure going to get to the Supreme Court because here

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Speaker 1: there are some limits that California is putting on just

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Speaker 1: basic cooperation with ice, which is, you know, if I

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Speaker 1: asked for basic information on where somebody is located or

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Speaker 1: what the date of the release that that cooperation is

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Speaker 1: no longer allowed. And also there are provisions in there

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Speaker 1: that actually limit the ability of ICE to put the

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Speaker 1: tension facilities in the state of California. The law actually

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Speaker 1: says that not even one additional detention bed can be

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Speaker 1: added in the state of California. And so there there

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Speaker 1: are some strong preension claims the Department of Justice has here,

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Speaker 1: and I expect the Department of Justice to prevail of

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Speaker 1: at least some of their claims in the ultimately, even

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Speaker 1: though it may not happen in the district court, it

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Speaker 1: may not happen in the Court of Appeals, but they

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Speaker 1: will ultimately, I think, be able to get almost their

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Speaker 1: claims prevail. The ponds that you know currently on, we'll

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Speaker 1: have to We'll have to leave it at that. Well,

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Speaker 1: we'll talk about this next time. That's Leon Fresco of

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Speaker 1: Hollandan Night. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Grosso.

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Speaker 1: This is Bloomberg h