1 00:00:00,040 --> 00:00:04,000 Speaker 1: The District of Columbia Federal Appeals Court has vacated permits 2 00:00:04,120 --> 00:00:07,560 Speaker 1: for three new interstate natural gas pipelines in the southeastern 3 00:00:07,680 --> 00:00:12,080 Speaker 1: United States, including the fifteen mile long Sable Trail pipeline 4 00:00:12,080 --> 00:00:15,600 Speaker 1: that would run through Alabama, Georgia, and Florida. In a 5 00:00:15,640 --> 00:00:17,640 Speaker 1: two to one decision, the court said that the Federal 6 00:00:17,760 --> 00:00:22,320 Speaker 1: Energy Regulatory Commission failed to uh failed in its environmental 7 00:00:22,360 --> 00:00:26,079 Speaker 1: review to account for enough information on the greenhouse gas 8 00:00:26,120 --> 00:00:30,200 Speaker 1: emissions that result from burning natural gas that the pipelines 9 00:00:30,240 --> 00:00:34,600 Speaker 1: will carry. The Sable Trail pipeline is already operating, but 10 00:00:34,760 --> 00:00:36,800 Speaker 1: the Sierra Club, which brought the suit, is hailing the 11 00:00:36,880 --> 00:00:40,720 Speaker 1: ruling to stop what it calls dangerous and unnecessary fract 12 00:00:40,800 --> 00:00:45,199 Speaker 1: gas pipelines. With us to discuss this case are Charles Warren, 13 00:00:45,200 --> 00:00:47,839 Speaker 1: a partner at Cramer Levin f Tallis and Frankel at. 14 00:00:47,840 --> 00:00:53,440 Speaker 1: Pat Parento, a professor at Vermont Law School, Pat, why 15 00:00:53,479 --> 00:00:56,840 Speaker 1: don't you take us through what the court actually found 16 00:00:56,880 --> 00:00:59,480 Speaker 1: here in in saying that the government didn't do its 17 00:00:59,520 --> 00:01:02,760 Speaker 1: job right? Well, it was a review under the National 18 00:01:02,800 --> 00:01:07,480 Speaker 1: Environmental Policy Act. Are famous environmental impact statement law and 19 00:01:08,160 --> 00:01:11,920 Speaker 1: um That law requires that agencies like Firk that approved 20 00:01:12,000 --> 00:01:16,000 Speaker 1: pipelines must consider the indirect effects as well as direct 21 00:01:16,000 --> 00:01:18,640 Speaker 1: effects of their actions, and in this case, the indirect effects, 22 00:01:18,680 --> 00:01:20,800 Speaker 1: as you mentioned, it would be the burning of the 23 00:01:20,800 --> 00:01:24,400 Speaker 1: gas and the power plants which would release methane greenhouse 24 00:01:24,520 --> 00:01:28,600 Speaker 1: very potent greenhouse gas, and UH FIRK took the position 25 00:01:28,640 --> 00:01:31,480 Speaker 1: that number one, it was very speculative as to what 26 00:01:31,600 --> 00:01:34,080 Speaker 1: those kinds of emissions would be in terms of trying 27 00:01:34,080 --> 00:01:36,959 Speaker 1: to quantify. And the number two, it argued that really 28 00:01:36,959 --> 00:01:40,160 Speaker 1: the ultimate decision to approve UH the use of this 29 00:01:40,319 --> 00:01:43,160 Speaker 1: gas was up to the state and its energy board, 30 00:01:43,360 --> 00:01:46,160 Speaker 1: which would approve the use of the gas in their 31 00:01:46,200 --> 00:01:48,720 Speaker 1: in their power plants. So the UH FIRK took the 32 00:01:48,720 --> 00:01:52,400 Speaker 1: position they were really the legal cause of these emissions. 33 00:01:52,440 --> 00:01:55,240 Speaker 1: The DC Circuit, in the decision you mentioned two to one, 34 00:01:56,040 --> 00:01:59,400 Speaker 1: UH disagreed with Firk and said, no, you do have 35 00:01:59,480 --> 00:02:03,000 Speaker 1: the author to consider environmental impacts. You do have some 36 00:02:03,120 --> 00:02:06,720 Speaker 1: authority to try to address them, at least through mitigation perhaps, 37 00:02:07,000 --> 00:02:10,120 Speaker 1: and so therefore the failure to consider those effects in 38 00:02:10,160 --> 00:02:14,280 Speaker 1: the environmental impact statement rendered it on lawful and UH. 39 00:02:14,360 --> 00:02:17,800 Speaker 1: The court vacated the certificate UH the license for the 40 00:02:17,840 --> 00:02:21,760 Speaker 1: pipeline and remanded the case to Firk. There'll be more 41 00:02:21,800 --> 00:02:25,160 Speaker 1: on this, but I'll stop there. So, Chuck, how big 42 00:02:25,160 --> 00:02:29,640 Speaker 1: a victory is this for environmentalists? Well, this is a 43 00:02:29,639 --> 00:02:32,080 Speaker 1: pretty big victory at least as far as it goes, 44 00:02:32,120 --> 00:02:36,880 Speaker 1: because they've obviously stopped the pipeline for a while until 45 00:02:37,400 --> 00:02:40,040 Speaker 1: they go back and and do this kind of analysis, 46 00:02:40,080 --> 00:02:43,520 Speaker 1: and depending on what the analysis shows, it might have 47 00:02:43,639 --> 00:02:47,680 Speaker 1: some impact on on the pipeline or or you know, 48 00:02:47,720 --> 00:02:50,880 Speaker 1: as they go forward. Um, obviously we haven't heard the 49 00:02:50,960 --> 00:02:53,960 Speaker 1: last of this, and so I'm sure they'll appeal to 50 00:02:54,040 --> 00:02:59,040 Speaker 1: the Supreme Court on this, and who knows exactly what's 51 00:02:59,040 --> 00:03:01,640 Speaker 1: gonna happen. They error. And then I think that that 52 00:03:01,720 --> 00:03:04,000 Speaker 1: was one of the arguments in the to the d 53 00:03:04,120 --> 00:03:09,359 Speaker 1: C Circuit that's based on an earlier case, the public 54 00:03:09,400 --> 00:03:12,799 Speaker 1: citizen case that which had to do with trucks coming 55 00:03:12,800 --> 00:03:15,560 Speaker 1: in from Mexico, where the court found you didn't have 56 00:03:15,600 --> 00:03:19,600 Speaker 1: to look at those impacts. Uh uh, Maybe they think 57 00:03:19,600 --> 00:03:22,280 Speaker 1: they have a chance at the Supreme Court level to 58 00:03:22,360 --> 00:03:25,840 Speaker 1: reverse this. Pat BTh you and Chuck have mentioned that, 59 00:03:25,880 --> 00:03:28,639 Speaker 1: you know, we're going to have more legal wrangling over 60 00:03:29,120 --> 00:03:32,800 Speaker 1: these pipelines, and obviously we will Supreme Court back to 61 00:03:32,880 --> 00:03:36,320 Speaker 1: firk Um, But what happens to the pipelines now and 62 00:03:36,600 --> 00:03:39,360 Speaker 1: where what can we expect as the next steps here. 63 00:03:40,080 --> 00:03:44,360 Speaker 1: That's actually an interesting question that the SERIC lawyers. Of course, 64 00:03:44,360 --> 00:03:47,119 Speaker 1: you're taking the position this means that you can't use 65 00:03:47,160 --> 00:03:50,840 Speaker 1: the pipeline because the certificate has been vacated and you 66 00:03:50,880 --> 00:03:55,000 Speaker 1: can't do anything until you've issued a new environmental impact statement, 67 00:03:55,120 --> 00:03:57,680 Speaker 1: or perhaps, as Chuck has mentioned that in the event 68 00:03:57,720 --> 00:04:02,119 Speaker 1: of future legal judicial action on this um, the pipeline 69 00:04:02,120 --> 00:04:04,920 Speaker 1: company I have read, is taking the position, well, we 70 00:04:04,920 --> 00:04:07,760 Speaker 1: haven't actually been ordered not to use the pipeline, and 71 00:04:07,800 --> 00:04:10,600 Speaker 1: they may go back to UH the DC Circuit, either 72 00:04:10,680 --> 00:04:14,080 Speaker 1: for clarification or more likely, in my view, they're gonna 73 00:04:14,120 --> 00:04:17,640 Speaker 1: petition for what's called a rehearing on bonk before the 74 00:04:17,720 --> 00:04:22,640 Speaker 1: full DC Circuit. There's another panel decision UH involving these 75 00:04:22,800 --> 00:04:26,040 Speaker 1: greenhouse gas emissions from in this case, an l n 76 00:04:26,120 --> 00:04:30,360 Speaker 1: G terminal and an export facility in Texas, and that 77 00:04:30,440 --> 00:04:34,560 Speaker 1: case reached the opposite conclusion with regard to Firk's UH 78 00:04:35,000 --> 00:04:40,320 Speaker 1: responsibility for considering greenhouse gas emissions. The cases are can 79 00:04:40,360 --> 00:04:43,479 Speaker 1: be distinguished, but there's going to be real arguments about 80 00:04:43,520 --> 00:04:47,719 Speaker 1: whether there's actually a split now within the DC Circuit 81 00:04:48,120 --> 00:04:51,400 Speaker 1: on this question, requiring the full circuit to address it. So, 82 00:04:51,720 --> 00:04:54,520 Speaker 1: as Charles mentioned, Um, and there's gonna be a lot 83 00:04:54,520 --> 00:04:59,279 Speaker 1: more legal action here, Chuck, why don't you explain how 84 00:04:59,320 --> 00:05:03,279 Speaker 1: it is the We've got a company suing protesters and 85 00:05:03,400 --> 00:05:06,039 Speaker 1: claiming that they are terrorists. What are they saying that 86 00:05:06,080 --> 00:05:10,320 Speaker 1: they did? Well, they're suing under what's known as the 87 00:05:10,400 --> 00:05:15,880 Speaker 1: RICO Statute, and that's the Racketeer Influenced and Corrupt Organizations Acts. 88 00:05:16,560 --> 00:05:19,320 Speaker 1: And uh, you know, they said that they made all 89 00:05:19,440 --> 00:05:28,120 Speaker 1: kinds of misrepresentations and negative campaigns, and uh, they put 90 00:05:28,200 --> 00:05:31,920 Speaker 1: wrong coordinates in and said they would you know, endanger 91 00:05:32,040 --> 00:05:35,400 Speaker 1: human lives and did all kinds of stuff and and 92 00:05:35,440 --> 00:05:39,719 Speaker 1: they colluded with these other organizations and they stage these 93 00:05:40,200 --> 00:05:43,680 Speaker 1: what they thought terrorists acts by these demonstrations and stuff 94 00:05:43,720 --> 00:05:47,680 Speaker 1: like that. And so, um, they're they're they're making a 95 00:05:47,720 --> 00:05:53,920 Speaker 1: lot of broad array of charges here. And as I think, 96 00:05:53,960 --> 00:05:57,840 Speaker 1: as you know, most situations that the RICO laws used 97 00:05:57,839 --> 00:06:03,279 Speaker 1: against organized crime like the mafia, and it's been occasionally 98 00:06:03,360 --> 00:06:08,640 Speaker 1: used against others, but it's not usually used against environmental groups, 99 00:06:08,680 --> 00:06:12,640 Speaker 1: even if they are aggressive in trying to put forward 100 00:06:12,839 --> 00:06:16,240 Speaker 1: their position, and so you know, my sense is that 101 00:06:16,320 --> 00:06:19,920 Speaker 1: this is a you know, a really overreaching type of 102 00:06:20,400 --> 00:06:25,000 Speaker 1: complaint here. And apparently they tried this before against green 103 00:06:25,080 --> 00:06:30,640 Speaker 1: Peace and UM, and this seems like a second attempt 104 00:06:31,080 --> 00:06:34,040 Speaker 1: at it. And I I don't think that the courts 105 00:06:34,040 --> 00:06:37,520 Speaker 1: are going to give it much hope here. That's just 106 00:06:37,640 --> 00:06:41,599 Speaker 1: my sense. Pat that second, the other lawsuit was filed 107 00:06:41,640 --> 00:06:44,440 Speaker 1: by the same law firm, which is a casuits firm 108 00:06:44,480 --> 00:06:50,120 Speaker 1: which represents Donald Trump. Um, what is the defense of 109 00:06:50,240 --> 00:06:56,680 Speaker 1: green Peace? First Amendment? I looked at the complaint in 110 00:06:56,720 --> 00:06:58,920 Speaker 1: this case. It's two under and seventy some pages. It's 111 00:06:59,080 --> 00:07:02,560 Speaker 1: it's really quite remarkable. UM. And I look down the 112 00:07:02,600 --> 00:07:05,240 Speaker 1: list of all the statements and documents and tweets and 113 00:07:05,240 --> 00:07:09,320 Speaker 1: everything that that the company is claiming constitute all these 114 00:07:09,360 --> 00:07:12,920 Speaker 1: horrible things terrorism and so forth. I didn't see anything 115 00:07:12,960 --> 00:07:15,200 Speaker 1: that was mentioned in that complaint that isn't protected by 116 00:07:15,240 --> 00:07:19,040 Speaker 1: the First Amendment. UM. You know, people have a right 117 00:07:19,080 --> 00:07:22,800 Speaker 1: to even overstate, uh, the impacts and the threats that 118 00:07:22,880 --> 00:07:25,920 Speaker 1: pipelines like this present. Green Peace could be guilty of 119 00:07:25,920 --> 00:07:29,320 Speaker 1: that right, but that's not illegal, and that's protected by 120 00:07:29,320 --> 00:07:31,320 Speaker 1: the First Amendment, and they're right to go to court, 121 00:07:32,080 --> 00:07:34,920 Speaker 1: or their right to organize, their right to petition the government, 122 00:07:34,960 --> 00:07:38,200 Speaker 1: their right to publicize what they believed to be uh, 123 00:07:38,240 --> 00:07:40,840 Speaker 1: the impacts of projects like this on the climate and 124 00:07:40,880 --> 00:07:43,440 Speaker 1: on the water and everything else. All of those things 125 00:07:43,440 --> 00:07:48,400 Speaker 1: are protected under our system of constitutional laws. So you know, 126 00:07:48,600 --> 00:07:51,440 Speaker 1: Green Piece has called this a slap suit, a strategic 127 00:07:51,520 --> 00:07:56,320 Speaker 1: lawsuit against public participation, where these are very familiar tactics 128 00:07:56,320 --> 00:07:59,000 Speaker 1: of at least some parts of industry to try to 129 00:07:59,400 --> 00:08:04,080 Speaker 1: intimidate e silence, scare off their critics and environmental activists 130 00:08:04,120 --> 00:08:06,960 Speaker 1: in particular. So I have to agree with Green Pieces. 131 00:08:07,040 --> 00:08:10,280 Speaker 1: This looks very much like a slap suit. Green Pieces, 132 00:08:10,320 --> 00:08:12,120 Speaker 1: by the way, not going to take this lying down. 133 00:08:12,160 --> 00:08:15,800 Speaker 1: They are going to counter sue for abusive process, intentional 134 00:08:15,800 --> 00:08:19,920 Speaker 1: infliction of emotional distress, defamation liable. They're going to come 135 00:08:19,960 --> 00:08:25,760 Speaker 1: through the other kitchen sink I predict against the pipeline company. 136 00:08:25,840 --> 00:08:29,600 Speaker 1: So um, you know, lots more entertainment for lawyers and 137 00:08:30,120 --> 00:08:34,480 Speaker 1: uh people watching this pat There is a provocative charge 138 00:08:34,800 --> 00:08:39,400 Speaker 1: that they attempted to sabotage the pipeline, and there were 139 00:08:39,520 --> 00:08:44,120 Speaker 1: arrests of people who were demonstrating and there were there 140 00:08:44,120 --> 00:08:47,719 Speaker 1: were things that happened at the pipeline which you might 141 00:08:47,840 --> 00:08:51,640 Speaker 1: consider some kind of sabotage. Yeah, that's true. In fact, 142 00:08:51,640 --> 00:08:54,120 Speaker 1: there's a trial coming up in December against one of 143 00:08:54,160 --> 00:08:57,320 Speaker 1: the protesters for destruction of property and other things. And 144 00:08:57,360 --> 00:08:59,720 Speaker 1: there's no question but what that is going to be 145 00:09:00,400 --> 00:09:02,760 Speaker 1: uh answerable to the court of law and the individuals 146 00:09:02,800 --> 00:09:06,480 Speaker 1: who you know perpetrated those acts, if it's proven in court, 147 00:09:06,520 --> 00:09:12,360 Speaker 1: are gonna be criminally prosecuted, maybe civilly, uh prosecutor for damages. 148 00:09:12,480 --> 00:09:16,120 Speaker 1: Those those certainly are legitimate claims. But to say that 149 00:09:16,120 --> 00:09:18,920 Speaker 1: that was all orchestrated by green Peace and all of 150 00:09:18,960 --> 00:09:22,760 Speaker 1: its green Peace affiliates throughout the world, including some organization 151 00:09:22,800 --> 00:09:25,400 Speaker 1: in the Netherlands, which is at the center of all this, 152 00:09:25,600 --> 00:09:29,320 Speaker 1: that's really the overreach that Chuck was talking about. Well, 153 00:09:29,440 --> 00:09:32,720 Speaker 1: it's interesting, Chuck, you you know, Pat mentioned this could 154 00:09:32,720 --> 00:09:34,760 Speaker 1: be what's called a slap suit, you know, meant to 155 00:09:35,440 --> 00:09:39,280 Speaker 1: silence groups like this. But I wonder about that as 156 00:09:39,320 --> 00:09:41,720 Speaker 1: a tactic when you've got a group like green Peace, 157 00:09:42,559 --> 00:09:47,920 Speaker 1: you know, working against a highly controversial project like the 158 00:09:48,000 --> 00:09:50,520 Speaker 1: Dakota Access Pipeline, where certainly they're gonna be able to 159 00:09:50,559 --> 00:09:52,240 Speaker 1: one would think they'll be able to get people to 160 00:09:52,360 --> 00:09:55,199 Speaker 1: back their defense. Uh, even if they need, you know, 161 00:09:55,240 --> 00:09:57,319 Speaker 1: if they need pro bono lawyers, if they need somebody 162 00:09:57,360 --> 00:10:01,360 Speaker 1: to fund this. Um, what do you think that you know, 163 00:10:01,960 --> 00:10:04,400 Speaker 1: what kind of success can can also like this have 164 00:10:04,679 --> 00:10:08,280 Speaker 1: against environmental groups. I don't think it's gonna have much success. 165 00:10:08,600 --> 00:10:10,120 Speaker 1: But I think there's one thing to be said here. 166 00:10:10,120 --> 00:10:13,720 Speaker 1: And I know the green Peace lawyers have attacked the 167 00:10:13,840 --> 00:10:18,280 Speaker 1: Castle wits Benson Torres firm, and in fact, in New 168 00:10:18,360 --> 00:10:23,640 Speaker 1: York they're well known for bringing very aggressive claims against people, 169 00:10:23,679 --> 00:10:27,680 Speaker 1: which often are thrown out in the end. And uh, 170 00:10:27,840 --> 00:10:31,160 Speaker 1: and I think that what you're seeing here isn't overreach 171 00:10:31,480 --> 00:10:34,920 Speaker 1: and goes I mean to use the Rico statute in 172 00:10:34,960 --> 00:10:39,000 Speaker 1: this case like this, I think is just a vast overreach. 173 00:10:39,160 --> 00:10:42,080 Speaker 1: And and I don't think they're really going to get anywhere. 174 00:10:42,640 --> 00:10:45,880 Speaker 1: That doesn't mean they won't try. I mean, aggressive lawyers, 175 00:10:46,800 --> 00:10:49,120 Speaker 1: you know, try to do a lot of things to 176 00:10:49,400 --> 00:10:52,040 Speaker 1: maybe intimidate people. But I don't think green Peace is 177 00:10:52,080 --> 00:10:56,400 Speaker 1: going to be intimidated. Their history shows they're not easily intimidated. 178 00:10:56,520 --> 00:10:58,079 Speaker 1: All Right, I want to thank you both for being 179 00:10:58,080 --> 00:11:01,360 Speaker 1: on Bloomberg Law. That's Charles war of Kramer Levin and 180 00:11:01,480 --> 00:11:03,880 Speaker 1: Pat Parento, professor at Vermont Law School.