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Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

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Speaker 1: The Supreme Court gave residents of the tiny town of Opportunity,

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Speaker 1: Montana an answer in their decades long court battle against

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Speaker 1: one of the largest corporations in the world. The residents

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Speaker 1: have been fighting to have Atlantic Richfield do additional clean

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Speaker 1: up of their property contaminated with arsenic and lead from

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Speaker 1: decades of smelting operations. At the oral arguments, Chief Justice

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Speaker 1: John Roberts pointed out the e p a's role and

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Speaker 1: yet someone else in your position would come in and say, well,

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Speaker 1: you're not doing anything here, and so we're going to

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Speaker 1: go ahead and do this, when the EPA's answer might

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Speaker 1: simply be that, well, we haven't gotten to it yet,

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Speaker 1: but we want to be the ones to decide what

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Speaker 1: to do rather than the particular landowners there, because we

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Speaker 1: have a broader perspective affecting the whole site. But Justice

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Speaker 1: Neil Gorst's questioned whether the property rights of the residents

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Speaker 1: were being infringed. Is there a takings claim you think

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Speaker 1: that arises from the government's position that any remediation efforts

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Speaker 1: for a period I I guess forty five years is

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Speaker 1: prohibited by landowners. On Monday, the Supreme Court rule that

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Speaker 1: the landowners must first get approval from the e p A.

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Speaker 1: Joining me is Pat Parento, a professor at the Vermont

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Speaker 1: Law School. So who gets to win? The landowners, Atlantic Richfield,

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Speaker 1: the e p A swards a split decision. Each gets

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Speaker 1: something out of it. The landowners have the right, says

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Speaker 1: the Supreme Court, to proceed in state court to seek

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Speaker 1: additional remedies or restoration for the contamination from the Atlantic

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Speaker 1: Richfield site. Atlantic rich Field gets to argue that the

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Speaker 1: state remedy or the additional landowner remedy cannot interfere with

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Speaker 1: the e p A remedy, which, of course at lank

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Speaker 1: Richfield has agreed to implement. And e p A gets

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Speaker 1: to keep control over the overall clean up and make

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Speaker 1: sure that what landowners might do in addition to what

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Speaker 1: e p A has ordered to be done doesn't interfere

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Speaker 1: with that. So everybody gets something. Chief Justice Roberts authored

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Speaker 1: the majority opinion. What was his thinking? The Chief Justice

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Speaker 1: was sympathetic to the landowners, and he thought that Congress

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Speaker 1: had clearly carved out a remedy for landowners who felt

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Speaker 1: like the e p A remedy didn't go far enough

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Speaker 1: to protect them, and he said state courts and state

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Speaker 1: based remedy were permissible and that Congress did not seek

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Speaker 1: to cut those off. Justice Alito wasn't as convinced to that,

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Speaker 1: and I think he probably would have tossed the landowners

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Speaker 1: out altogether. Justice Gorst was even more sympathetic to the

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Speaker 1: landowners and felt like they should be able to proceed

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Speaker 1: without EPA's permission or approval. So you saw really an

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Speaker 1: interesting split among the conservative wing of the Court in

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Speaker 1: this particular case. The liberals were sat there quietly. They

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Speaker 1: certainly went along with Roberts and not with Gorst. An

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Speaker 1: interesting little bit of a split between robertson Gorc on

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Speaker 1: this course. It said that the outcome in the case

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Speaker 1: strips away ancient common law rights from innocent landowners and

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Speaker 1: forces them to suffer toxic waste in their backyards, playgrounds,

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Speaker 1: and farms. And there seemed to be a little bickering,

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Speaker 1: shall we say, between Gorci and Robert's using the metaphor

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Speaker 1: of a sandbox, Yes, a fight in the sandbox. Indeed,

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Speaker 1: it was a test to exchange is finding his voice,

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Speaker 1: I think on the court and being willing to stand

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Speaker 1: up to the chief in this instance. He almost sounds

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Speaker 1: like an environmentalist in this case, right, worried about toxic

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Speaker 1: sandboxes and so forth. You know, Gorsage does reveal himself

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Speaker 1: to be a strong believer in sort of the custom

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Speaker 1: of law, common law, our heritage of all. We've seen

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Speaker 1: that before in some of his opinions, and it's part

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Speaker 1: of being, i think a conservative judge who believes in

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Speaker 1: property rights, and a lot of his concern about giving

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Speaker 1: the e p A too much control over whether what

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Speaker 1: the landowner wants is permissible or not is a reflection

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Speaker 1: of his anti regulatory outlook on life. So not not

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Speaker 1: terribly surprising, but very strongly word concurring and dissenting opinion.

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Speaker 1: For sure, the landowners can sue in state court under

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Speaker 1: state law, but they need e p A approval and

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Speaker 1: how big it catches that, as a leader pointed out

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Speaker 1: in his concurring opinion, at this point, the landowners really

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Speaker 1: can't proceed any further without ep A sign off, and

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Speaker 1: e p A rejected the proposed additional remedy that the

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Speaker 1: landowners wanted before, so there's no reason to believe that

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Speaker 1: e p A is going to approve at least what

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Speaker 1: the landowners had previously proposed. Now they may come up

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Speaker 1: with a new proposal. But as they go back, you know,

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Speaker 1: the Supreme Court has sent this back to the Montana

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Speaker 1: Supreme Court for further proceedings. And it looks to me

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Speaker 1: like either the land owners are going to have to

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Speaker 1: go to e p A right now before they go

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Speaker 1: any further in state court, or the state court is

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Speaker 1: going to have to dismiss the landowner's case unless and

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Speaker 1: until they get e PA's approval. That appears to be

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Speaker 1: where we are at this point. So then so much

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Speaker 1: depends on who's running the e p A and what

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Speaker 1: the attitude of the e p A of the moment is.

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Speaker 1: So that seems like a defeat for the landowners, then

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Speaker 1: I think it's a partial defeat for sure. I Mean,

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Speaker 1: what they were counting on is a green light to

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Speaker 1: just go forward with their case and prove their case

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Speaker 1: in state court and get an award from state court.

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Speaker 1: And it doesn't look like they're going to be able

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Speaker 1: to do that, And it also doesn't look like they're

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Speaker 1: going to be able to persuade e p A of

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Speaker 1: the kind of work that they want to do on

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Speaker 1: their own property, which may, according to e p A,

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Speaker 1: interfere with the approach that e p A has taken

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Speaker 1: to the clean up of the site. And of course

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Speaker 1: that's part of this big settlement agreement UM with our

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Speaker 1: Atlantic rich Field. And I think it's gonna be hard

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Speaker 1: to convince e p A that additional remedies are needed,

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Speaker 1: but at least the Supreme Court has given the landowners

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Speaker 1: the opportunity to try that. Does this decision give enough

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Speaker 1: certainty to companies that if they agree to a clean

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Speaker 1: up lan with the e p A, that it's definite

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Speaker 1: that they don't have to worry about paying more in

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Speaker 1: the future. No, it doesn't, and I think that's one

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Speaker 1: thing that bothered Aldo. It still leaves a crack in

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Speaker 1: the door. You know, after how many years, some twenty

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Speaker 1: some years, this site has been on the National Priority

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Speaker 1: List and being quote cleaned up and the works still

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Speaker 1: not done. There's still many years left of work to do.

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Speaker 1: So there's now still the uncertainty about whether a landowner

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Speaker 1: could actually make a compelling argument, as you say, either

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Speaker 1: to this e p A or to a future e

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Speaker 1: p A, that the remedy doesn't go far enough for

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Speaker 1: them and that their groundwater, they're drinking water, or their

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Speaker 1: use of water on their land is not saying I mean,

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Speaker 1: we are talking about arsenic after all, this is a

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Speaker 1: serious threat. So yeah, I think this case does create

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Speaker 1: uncertainty for settlements, particularly for these very expensive cleanups. Does

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Speaker 1: the decision give enough guidance? Is it clear enough for

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Speaker 1: federal courts state courts that have to interpret it in

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Speaker 1: the future. I don't think so. The case has left

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Speaker 1: open the question what would happen if the landowners propose

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Speaker 1: a new plan for clean up on their property that

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Speaker 1: EPA disapproves. Can the landowners challenge the fact that e

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Speaker 1: p A has refused to let them pursue that remedy

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Speaker 1: or not? We don't know the answer to that. Thanks Pat.

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Speaker 1: That's Pat Parento of the Vermont Law School. The Supreme

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Speaker 1: Court gave environmentalists a partial wind on the scope of

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Speaker 1: the Clean Water Act. Joining me is Greg star Bloomberg,

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Speaker 1: new Supreme Court reporter. So, Greg, this was about a

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Speaker 1: water treatment facility in Hawaii. Tell us the background. The

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Speaker 1: background is this this facilities in Maui. It's about a

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Speaker 1: half mile from the ocean, and it dumps wastewater into

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Speaker 1: wells underground, and the water then travels through the groundwater

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Speaker 1: and eventually gets into the ocean, and environmental to say

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Speaker 1: they have studies that show it is doing serious damage

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Speaker 1: to coral reefs there. And so the question is whether

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Speaker 1: the Federal Clean Water Act requires that the facility have

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Speaker 1: get a federal permit to do that sort of thing,

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Speaker 1: and if they do have to, they'll be subject to

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Speaker 1: some significant restrictions. Did this turn on basically the interpretation

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Speaker 1: of one word. It did, and the word is from

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Speaker 1: uh federal law. The Clean Water Act says UH that

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Speaker 1: UH if UH pollution goes from what's known as a

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Speaker 1: point source, which is a you know, kind of a

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Speaker 1: main source of of discharge to a waterway, then it's

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Speaker 1: subject to the permanenting requirements under the Clean Water Act.

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Speaker 1: And so the question as well, you know, here the

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Speaker 1: treated wastewater didn't go directly into the ocean. It went

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Speaker 1: through that half mile of groundwater first. And the question

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Speaker 1: was basically is that coming from the treatment facility? And

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Speaker 1: so what did the justices decide? They decided, well, maybe, um,

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Speaker 1: you know, the the argument was one a few months

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Speaker 1: ago where the court didn't the justices at least the

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Speaker 1: ones in in the middle of the court didn't seem

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Speaker 1: like either side's argument. The both sides kind of went

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Speaker 1: too far. On one hand, you had the Trump administration

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Speaker 1: and Maui County saying, look, it's got to be direct.

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Speaker 1: If the if it doesn't go directly from the pipe

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Speaker 1: into the river or the ocean or whatever, uh, then

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Speaker 1: it doesn't qualify. And meanwhile, the federal appeals court in California,

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Speaker 1: the Ninth Circuit, had said, well, as long as it's

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Speaker 1: fairly traceable to that source, that's enough. And what the

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Speaker 1: Supreme Court said was, you know, we're gonna we're gonna

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Speaker 1: say it doesn't have to be direct, but it needs

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Speaker 1: to be functionally equivalent of direct. So if it's pretty close,

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Speaker 1: if the facility you know, dumps it out and it

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Speaker 1: doesn't have to go very far to get into the

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Speaker 1: ocean or the river or whatever, uh, that qualifies. And

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Speaker 1: so they then kicked the case back to the the

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Speaker 1: federal appeals court to figure out whether the Maui facility

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Speaker 1: met that standard of being functionally equivalent to a direct discharge.

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Speaker 1: So that's a partial win for environmentalists in this case,

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Speaker 1: But is it a full blown wind for environmentalists in

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Speaker 1: the future when there are other cases like this. Uh. Yeah,

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Speaker 1: they seem very happy with this. The lawyer David Hankin,

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Speaker 1: who argued the case, predicted that that they're gonna win

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Speaker 1: when they go back to the appeals court, and that

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Speaker 1: this is you know, really a big victory, uh, in

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Speaker 1: that it keeps the Clean Water Acts still operating to

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Speaker 1: regulate some of these polluting facilities. The the Trump administration's

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Speaker 1: rule and actually Malay County win even further would have

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Speaker 1: sharply curtailed what they covered, what e p A could regulate,

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Speaker 1: what environmental groups could sue over. Given that this is

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Speaker 1: a pretty conservative court environmentalists, we had reason to fear

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Speaker 1: they might have had a result like that, but it

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Speaker 1: didn't turn out that way. Instead, the court left still

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Speaker 1: a fairly robust Clean Water Act and the decision was

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Speaker 1: six to three. What was the line up, So it

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Speaker 1: was the Court's liberals in the majority, with Stephen Bryer

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Speaker 1: writing the opinion, and they were joined by John Roberts,

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Speaker 1: the Chief Justice, and Brett Kavanaugh. Uh So, you know,

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Speaker 1: this is the case where we kind of have a

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Speaker 1: court that we might have predicted when Kavanaugh joined the

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Speaker 1: Court where at least occasionally, Um, the Liberals would would

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Speaker 1: win victories, bringing over the relative moderate Justices Kavanaugh and

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Speaker 1: Roberts the Morgans servative ones groc Thomas Alito dissented. UH

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Speaker 1: said that the Clean Water Act is is not as

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Speaker 1: expansive as the majority said. I wonder if the liberals

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Speaker 1: cheer every time Justice Roberts sides with them secretly. I'm

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Speaker 1: sure they're they're they're at least relieved. And you know,

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Speaker 1: I think, you know, Justice like Briar, who wrote this opinion, Um,

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Speaker 1: you know, clearly thinks and knows he can work with

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Speaker 1: the Chief Justice in at least some cases. There are

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Speaker 1: some cases where they're just not going to see the

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Speaker 1: eyed eye. But here you could sort of see them

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Speaker 1: going back and forth during the argument back in the fall,

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Speaker 1: where um, you know, the Chief Justice clearly wasn't satisfied

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Speaker 1: with what either side of the in the case was arguing.

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Speaker 1: But but he was also wondering whether Justice Briars standard

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Speaker 1: that he threw out, which during the argument, UH was

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Speaker 1: going to be specific enough, and apparently Justice Briar persuaded

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Speaker 1: him that indeed there were clear enough standards that we

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Speaker 1: could go with this functionally equivalent standard tell you that

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Speaker 1: what happens behind the scenes is often far more interesting

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Speaker 1: than what we get to see from the oral arguments

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Speaker 1: and from the decisions. The Supreme Court overturned a decades

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Speaker 1: old precedent, deciding that states must require unanimous juries to

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Speaker 1: convict defendants of serious crimes, but the six to three

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Speaker 1: decision highlighted deep divides among the justices over adhering to

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Speaker 1: their past opinions. Joining me is Bloomberg. Supreme Court reporter

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Speaker 1: Greg store So, Greg tell us a little about the case.

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Speaker 1: There were two states, Louisiana and Oregon, that for some

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Speaker 1: crimes still said that an eleven and one or even

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Speaker 1: attended to jury verdict is enough to convict somebody, and

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Speaker 1: the Supreme Court, over ruling in nineteen seventy two ruling

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Speaker 1: that had allowed states to do that, they said to

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Speaker 1: that is a violation of the Constitution six Amendment. Greg

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Speaker 1: was an unusual line up six to three, with Chief

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Speaker 1: Justice John Roberts and Justices Samuel Alito and Elena Kagan

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Speaker 1: in the descent. Was their descent related to the issues

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Speaker 1: presented or to whether precedent should be followed here? It

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Speaker 1: was really about the latter. Justice Alito wrote for the group,

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Speaker 1: and most of what he focused on was not whether

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Speaker 1: the nineteen seventy two decision was correct, but whether this

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Speaker 1: would be too much of a burden on Louisiana and

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Speaker 1: Oregon to have to change their systems and to have

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Speaker 1: some convictions called into question. Justice Alito said that there

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Speaker 1: was a real reliance interests, that there are thousands of

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Speaker 1: cases that could potentially be upended or at least affected

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Speaker 1: by this ruling, and that notion of adherence to precedent's

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Speaker 1: starry descizes is something that is one of the most

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Speaker 1: important issues for the Court going forward. Very interesting to

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Speaker 1: me that that was how they divided in this case. Well,

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Speaker 1: Justice Kagan has been sort of talking up the importance

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Speaker 1: of precedence for a while, But seeing the Chiefs and

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Speaker 1: Alito agreeing with her about precedent, does that vode well

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Speaker 1: for some of the cases the Court is going to

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Speaker 1: decide involving, for example, abortion rights at least a marker.

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Speaker 1: It's very very interesting. Justice Kagan is really the Court's

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Speaker 1: champion of starry decisive right now. She consistently says, let's

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Speaker 1: not overturn precedence, Let's not overturn precedents. Justice Alito is

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Speaker 1: somebody who has been willing to overturn precedents. You may

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Speaker 1: recall he wrote the ruling a couple of years ago

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Speaker 1: in a case called Janie that said that if you're

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Speaker 1: a government employee, you have a constitutional right not to

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Speaker 1: pay fees to your union to cover the cost of

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Speaker 1: representation and not overturned an earlier Supreme Court decision. And

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Speaker 1: then Chief Justice Roberts is somebody who you can sort

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Speaker 1: of see Justice Kagan often trying to persuade to bring

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Speaker 1: over onto her side. He is somebody who also doesn't

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Speaker 1: want to overturn more precedents than the Court really needs to.

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Speaker 1: So it's a bit of a monthly collection there, but

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Speaker 1: definitely something worth watch going forward. Now. Justice Neil Gorsuch

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Speaker 1: wrote the opinion for the Court, and he said that

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Speaker 1: starry decisive isn't supposed to be the art of methodically

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Speaker 1: ignoring what everyone knows to be true. Yeah, he made

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Speaker 1: interesting Yeah, he made the point that nobody was really

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Speaker 1: defending this nineteen seventy two ruling. It was a bit

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Speaker 1: of an odd One is a case called Apodaca, where

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Speaker 1: the ruling was four one four and the one was

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Speaker 1: Justice Louis Powell, who adopted an approach that really nobody

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Speaker 1: else agreed with, and over the two decades, the Court

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Speaker 1: pretty clearly as a whole didn't agree with his approach,

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Speaker 1: and yet that president still stood letting states allowed non

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Speaker 1: unanimous jury verdict. So Justice of course it was making

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Speaker 1: the point that, look, nobody agrees that this should still

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Speaker 1: be the law here. You know, we shouldn't do some

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Speaker 1: mechanical application of of starry decisives and stick with it.

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Speaker 1: We should do what's right and overturn it. So now

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Speaker 1: only two states, Louisiana and Oregon, have this kind of rules.

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Speaker 1: So what does this mean on the ground. Yeah, and

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Speaker 1: they don't even to have it for everything. Leanna, for example,

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Speaker 1: requires unanimity for crimes committed in twenty nineteen or later,

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Speaker 1: so this only applied to previous crimes. One issue of

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Speaker 1: the Supreme Court left open is whether it will apply

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Speaker 1: retroactively to convictions that have already gone up on appeal

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Speaker 1: and been finalized. Justice Course has suggested pretty strongly that

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Speaker 1: it would not apply retroactively, and Justice Kavana, on a

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Speaker 1: concurring opinion, flat out said it would not apply retroactively,

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Speaker 1: but the dissent by Justice on Leado said, boy, I'm

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Speaker 1: not so sure about that. Based on our precedency, it

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Speaker 1: might apply retroactively. And that's what I'm really worried about,

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Speaker 1: is this prospect that thousands of convictions will be overturned.

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Speaker 1: How about the prospect that in the controversial cases that

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Speaker 1: are coming up, we're going to see a lot of opinions. Yeah,

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Speaker 1: this really doesn't bode well for for the court. Speaking

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Speaker 1: with consensus type opinions, they were all over the map.

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Speaker 1: We haven't even talked about some of the other opinions,

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Speaker 1: Justice Thomas, Justice, so do my your You know, a

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Speaker 1: lot of people wanted to say something. This Court hasn't

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Speaker 1: yet sort of hit its rhythm in terms of having

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Speaker 1: justices agreeing with one another on large numbers of points.

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Speaker 1: Where still at the point with this court where we

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Speaker 1: have a lot of different justices going off in different directions,

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Speaker 1: and we saw that into this opinion. So which justice

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Speaker 1: did not write a concurring opinion? Oh, let's see George's

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Speaker 1: Justice Ginsburgh didn't write, Justice Brier didn't write. They just

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Speaker 1: went along with what Justice Corsage said. One of the

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Speaker 1: interesting dynamics of this is that with the exception of

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Speaker 1: Justice Keig and the more liberal justices were with justice

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Speaker 1: corsets in the majority. Part perhaps because this is an

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Speaker 1: issue that a lot of people think, including justice courses

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Speaker 1: to Kavanaugh ends up hurting racial minorities. It hurts lack

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Speaker 1: defendants injurors because it means that if there's only one

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Speaker 1: or two black jurors on a jury and they take

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Speaker 1: a different view from the majority, that they may not

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Speaker 1: be able to stop a guilty verdict from going forward.

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Speaker 1: Thanks Greg, that's Bloomberg New Supreme Court reporter Gregg's store.

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Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can

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Speaker 1: 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 Brosso.

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Speaker 1: This is Bloomberg