Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. California is on
Speaker 1: a collision course with the Trump administration over auto efficiency regulations.
Speaker 1: Couldn't lead the White House to try to revoke the
Speaker 1: state's power to set its own limits on air pollution,
Speaker 1: joining me as Ann Carlson, environmental law professor at u
Speaker 1: c l A Law School, and Congress gave California the
Speaker 1: authority to set pollution standards that are tougher than those
Speaker 1: of the federal government in the Clean Air Act about
Speaker 1: five decades ago. What are the limits on the e
Speaker 1: p a's power to cut off that authority? Well, EPA
Speaker 1: has to give California permission through a waiver process to
Speaker 1: issue standards that are tougher than the federal standards. It's
Speaker 1: already done that for fuel economy standards and greenhouse gas
Speaker 1: mission standards through and so the big question is can
Speaker 1: the e p A revoke that permission? And there is
Speaker 1: no explicit mechanism for the e p A to revoke
Speaker 1: a waiver. Well, there is no explicit mechanism, that's right.
Speaker 1: I think that the EPA administrator, if he chooses to
Speaker 1: provoke the waiver, would argue that there's an implicit authority
Speaker 1: that given that they have to give permission, they also
Speaker 1: can take away that permission. I think that's going to
Speaker 1: be a hotly contected question in court, though, So that
Speaker 1: would lead to the an e p A action like
Speaker 1: that would lead to a court fight that would take years,
Speaker 1: and the industry rules would be uncertain for that time. Well,
Speaker 1: it's a very good question. It would certainly lead to
Speaker 1: a big court fight. California has already indicated that it
Speaker 1: will sue if the federal government tries to provoke the
Speaker 1: permission that it's been granted. I think the question about
Speaker 1: whether the California standards remain in place during a court
Speaker 1: fight would be an open one, and I think a
Speaker 1: court might well allow California to move forward with its
Speaker 1: own standards while the question of the waiver is decided.
Speaker 1: The e p A is facing an April first deadline
Speaker 1: to decide whether the Obama era greenhouse gas standards for
Speaker 1: cars and light trucks um remain in effect from I
Speaker 1: think to where does that decision stand? Do we know?
Speaker 1: We don't know yet, although we have some indication that
Speaker 1: the UH proot e p A is going to loosen
Speaker 1: the standards of the Obama administration set and I think
Speaker 1: they're going to do it. And then the question is
Speaker 1: California has already said it's gonna implement those standards even
Speaker 1: if the federal government rolls its back, and then the
Speaker 1: big question will be will they let California do that
Speaker 1: or will they try to revoke California's waivers? Are they
Speaker 1: negotiate sations going on between California and the e p A.
Speaker 1: As I understand that there have been negotiations going on.
Speaker 1: One thing that California would like is permission to issue
Speaker 1: standards for model years five and forward as it tries
Speaker 1: to reduce its greenhouse gas emissions. But I understand that
Speaker 1: those negotiations have fallen apart. Scott Pruitt is in the
Speaker 1: press yesterday saying that it doesn't look like he's interested
Speaker 1: in and and forward years, and California is indicated it's
Speaker 1: going to move forward with its standards. New York and
Speaker 1: Washington and several other states that account for about a
Speaker 1: third of US vehicle sales have adopted California's standards. So
Speaker 1: where does that leave them? So they can follow California standards,
Speaker 1: or they can follow federal standards. They can't put together
Speaker 1: their own standards. So as long as California standards are
Speaker 1: in place, they are free to choose to follow the
Speaker 1: California standards. Of course, if e p A tries to
Speaker 1: revoke California's permission, then that leaves all of those states
Speaker 1: in legal limbo again. I think California will fight hard
Speaker 1: in court and will probably be joined by New York
Speaker 1: and Washington and Oregon and the other states that have
Speaker 1: chosen to follow California's lead. Is it Is it smart
Speaker 1: for these auto manufacturers in the long run to to
Speaker 1: lower the standards when they try to reseal their car
Speaker 1: resale car value, and also, you know, international standards come
Speaker 1: into play. Honestly, I don't understand the position of the
Speaker 1: auto industry in this battle. We've seen over and over
Speaker 1: again that the auto industry tries to fight these standards
Speaker 1: and fight against technological change, environmental pressure, etcetera. We've got
Speaker 1: China for example, announcing that it's going to try to
Speaker 1: implement a zero emission vehicle goal over the course the
Speaker 1: next ten or fifteen years. Same thing is happening in Europe.
Speaker 1: Japan now has more electric vehicle chargers than it does
Speaker 1: gas stations, and so the trend is in the direction
Speaker 1: of reducing greenhouse gas emissions to zero. The way to
Speaker 1: do that is to increase fuel economy and to keep
Speaker 1: tightening those standards, not to reduce it. Well, this was
Speaker 1: one of President Barack Obama's most concrete environmental achievements. Some say,
Speaker 1: and um, the Trump administration has been trying to unravel
Speaker 1: a lot of his environmental achievements. Is this part of that?
Speaker 1: In about a minute? Absolutely, this is part of that.
Speaker 1: In fact, in my view, the auto emission standards are
Speaker 1: the most important climate change policy that the Obama administration issued,
Speaker 1: even more important than the standards for power plants. And
Speaker 1: that's because, unlike in the electricity sector, we're seeing increases
Speaker 1: in greenhouse gas missions coming from the transportation sector for
Speaker 1: a couple of reasons. One because gas prices have been
Speaker 1: going down, and too because the auto manufacturers have been
Speaker 1: pushing hard to sell bigger vehicles SUVs and so forth,
Speaker 1: and so if this gets unraveled, we're going to see
Speaker 1: an even steeper increase in greenhouse gas missions in the
Speaker 1: transportation sector. Just briefly, and in about thirty seconds, how
Speaker 1: much of Obama's environmental legacy is left? If you have
Speaker 1: a number, Oh, that's such a hard question, because there
Speaker 1: are a lot of places where the Trump administration is
Speaker 1: not succeeding in ruling back rolling back Obama era rules,
Speaker 1: and so we're gonna see a lot of court fights
Speaker 1: to protect what the Obama administration does. I'm sorry, did
Speaker 1: There are also some really big rules that stayed in place,
Speaker 1: including reducing toxic commissions from power plants and that sort
Speaker 1: of thing. So it's really really hard to put a
Speaker 1: number on that, but I think you know, it is
Speaker 1: safe to say that the Trump administration is doing everything
Speaker 1: it can to roll back the major initiatives, especially on
Speaker 1: climate change. Well, thank you so much for your insights.
Speaker 1: That's and Carlson, environmental law professor at u c l
Speaker 1: A Law School. States are going in radically different directions
Speaker 1: over whether to support President Trump's crackdown on undocumented immigrants
Speaker 1: to states that are diametrically opposite our Texas with its
Speaker 1: anti sanctuary law and California with its pro sanctuary law,
Speaker 1: and the Fifth Circuit Court of Appeals has now given
Speaker 1: Texas permission to enforce much, though not all, of its
Speaker 1: controversial sanctuary city ban. Joining me is Leon Fresco of
Speaker 1: Hollandon Knight Leon. The Trump administration helped defend Texas ban
Speaker 1: in court. How big a victory is this for the
Speaker 1: Trump administration. There's no other way to couch it other
Speaker 1: than to say that they dramatically enormous victory for the
Speaker 1: Trump administration in the sense that they now have cleared
Speaker 1: the field for states like Texas to pass these kinds
Speaker 1: of laws that basically will say, if they are able
Speaker 1: to pass them, that cities within a state cannot choose
Speaker 1: to uh say that they're not going to coop a
Speaker 1: with requests from Immigration and Customs enforcement when they ask
Speaker 1: for information about people in their custody. You mentioned some
Speaker 1: of it there, But how what did the appeals court
Speaker 1: ruling give Texas the ability to do? Give us the
Speaker 1: high points? Sure so, the provision that Texas pass, which
Speaker 1: was known as SB four, had four basic principles to it,
Speaker 1: and the four basic principles that it had was that
Speaker 1: it would say that if a city tried to say
Speaker 1: to its individuals that its officers could not ask about
Speaker 1: immigration information, could not cooperate with a request for immigration
Speaker 1: information from ICE, or did not work, did not comply
Speaker 1: with what are called detainer requests, which is where ICE
Speaker 1: asked a local uh a local police office to say, hey,
Speaker 1: do you mind holding this person until we find out
Speaker 1: if there's someone we can deport, and then we'll come
Speaker 1: and pick them up. That what the Texas statute said
Speaker 1: is if a c the doesn't do all of this
Speaker 1: level of cooperation, that the actual officers who are ordering
Speaker 1: this kind of non cooperation can be fined or even
Speaker 1: can be subject to criminal penalties. And that was that
Speaker 1: had been enjoined by a lower court. But now all
Speaker 1: of that's been viewed as fine. There's one provision that
Speaker 1: that side of that, which if you want to talk
Speaker 1: about we can that's still been enjoyed. But other than that,
Speaker 1: all of this cooperation that Texas has mandated cities to
Speaker 1: do with ICE is now required. The opinion rejected the
Speaker 1: argument that immigration policy should be left to Congress, not
Speaker 1: the States. Does that lead to the conclusion that California's
Speaker 1: pro sanctuary legislation should be upheld. Well, it's it's it's
Speaker 1: a bit complicated because what the opinion said was that
Speaker 1: it's Congress. If all the states and the cities have
Speaker 1: been making arguments around the court that there's this Tenth
Speaker 1: Amendment issue that Congress cannot require cooperation but it's voluntary,
Speaker 1: then if a state, in a city like California is
Speaker 1: going to say, well, you shouldn't require us to do anything,
Speaker 1: it's voluntary, then that eliminates the argument that the plainests
Speaker 1: in Texas made that this is required by statute, because
Speaker 1: the point that Texas cannot require this, because the point
Speaker 1: is it's the cities and the state's choices to make.
Speaker 1: Then this is the state. This is the choice Texas made,
Speaker 1: and so that choice has to be respected. And so
Speaker 1: the court did kind of rub that a little bit
Speaker 1: in the face of the plaintifts to say, you can't
Speaker 1: have it both ways. You can't say a state like
Speaker 1: California can't be forced to do it, and then a
Speaker 1: state like Texas doesn't have the option to agree to
Speaker 1: do it, to do this cooperation. And so that's why, uh,
Speaker 1: this is a particularly tough pill to swallow for the plaintiffs.
Speaker 1: The Court said, future challengers of this Texas ban will
Speaker 1: have to violate the ban and suffer the consequences to
Speaker 1: gain the legal right to sue. Considering the outrage of
Speaker 1: many when this Texas law was passed, do you expect
Speaker 1: challenges to deliberately violate the band to get into court?
Speaker 1: I think that I think that it may be possible
Speaker 1: that people will look for extreme cases, but I think
Speaker 1: at the end of the day, based on some conversations
Speaker 1: I've had with some of the folks involved in this litigation,
Speaker 1: people are pretty uh concerned about just winding this down
Speaker 1: and not sort of allowing this impetus for for the
Speaker 1: Supreme Court to say it's fine sort of to live
Speaker 1: to fight another day and hope that other states don't
Speaker 1: do what Texas has done here and American Civil Liberties
Speaker 1: Union lawyer vowed to keep fighting this, possibly with an
Speaker 1: eventual appeal to the Supreme Court. Are you saying that
Speaker 1: the Supreme Court might take this case or might not? Well?
Speaker 1: I think the I think the problem is I think
Speaker 1: that you know, there's there are ne jerk comments that
Speaker 1: people make right after they lose a lawsuits, but right now.
Speaker 1: The sort of discussion is is this the right time
Speaker 1: to in a case like this to the Supreme Court,
Speaker 1: even that the Supreme Courts made a couple of other
Speaker 1: rulings already in the immigration context that have been promoting
Speaker 1: things like detention and now some aspects of the travel,
Speaker 1: then that maybe this is not the right time to
Speaker 1: bring this Texas case the Supreme Court and instead to
Speaker 1: let the sort of California cases happen and then you know,
Speaker 1: at another at another time later somebody else could challenge
Speaker 1: the Texas case again and bring it up if you know,
Speaker 1: if if there's better inclination from the court, that something
Speaker 1: might be welcome. Here. Let's turn briefly to those California cases.
Speaker 1: The Trump administration is suing California over three laws that
Speaker 1: block local officials basically from complying with federal immigration directives.
Speaker 1: Who has the better side of that flightly on. That
Speaker 1: is a very very interesting case. That case is for
Speaker 1: sure going to get to the Supreme Court because here
Speaker 1: there are some limits that California is putting on just
Speaker 1: basic cooperation with ice, which is, you know, if I
Speaker 1: asked for basic information on where somebody is located or
Speaker 1: what the date of the release that that cooperation is
Speaker 1: no longer allowed. And also there are provisions in there
Speaker 1: that actually limit the ability of ICE to put the
Speaker 1: tension facilities in the state of California. The law actually
Speaker 1: says that not even one additional detention bed can be
Speaker 1: added in the state of California. And so there there
Speaker 1: are some strong preension claims the Department of Justice has here,
Speaker 1: and I expect the Department of Justice to prevail of
Speaker 1: at least some of their claims in the ultimately, even
Speaker 1: though it may not happen in the district court, it
Speaker 1: may not happen in the Court of Appeals, but they
Speaker 1: will ultimately, I think, be able to get almost their
Speaker 1: claims prevail. The ponds that you know currently on, we'll
Speaker 1: have to We'll have to leave it at that. Well,
Speaker 1: we'll talk about this next time. That's Leon Fresco of
Speaker 1: Hollandan Night. Thanks for listening to the Bloomberg Law Podcast.
Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcast. I'm June Grosso.
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