1
00:00:02,759 --> 00:00:07,000
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

2
00:00:08,600 --> 00:00:13,160
Speaker 2: Louisiana's law requiring the Ten Commandments be displayed in public

3
00:00:13,200 --> 00:00:17,040
Speaker 2: school classrooms is making its way up to the Supreme Court.

4
00:00:17,480 --> 00:00:20,600
Speaker 2: The constitutionality of the law is now before the US

5
00:00:20,680 --> 00:00:23,680
Speaker 2: Court of Appeals for the Fifth Circuit after a federal

6
00:00:23,800 --> 00:00:27,960
Speaker 2: judge said the requirement violated the First Amendment. The case

7
00:00:28,000 --> 00:00:33,440
Speaker 2: has implications outside Louisiana, as lawmakers in other state houses

8
00:00:33,720 --> 00:00:37,159
Speaker 2: have begun to propose similar laws, joining me his First

9
00:00:37,200 --> 00:00:40,959
Speaker 2: Amendment expert Caroline Malik Corbin, a professor at the University

10
00:00:40,960 --> 00:00:44,760
Speaker 2: of Miami Law School. Caroline explain why the lower court

11
00:00:45,240 --> 00:00:47,160
Speaker 2: blocked this Louisiana law.

12
00:00:47,680 --> 00:00:53,400
Speaker 3: So this all started when Louisiana passed the law mandating

13
00:00:53,800 --> 00:00:58,480
Speaker 3: that every single public school classroom in Louisiana from kindergarten

14
00:00:58,600 --> 00:01:02,640
Speaker 3: through high school through college post a King James version

15
00:01:02,680 --> 00:01:06,600
Speaker 3: of the Ten Commandments. And naturally, this was challenged as

16
00:01:06,800 --> 00:01:11,640
Speaker 3: violating the Establishment Clause that the clause in the First

17
00:01:11,680 --> 00:01:15,679
Speaker 3: Amendment of the US Constitution that mandates some degree of

18
00:01:15,720 --> 00:01:20,320
Speaker 3: separation of church and state and lawsuits start in district court.

19
00:01:20,560 --> 00:01:23,840
Speaker 3: And in some ways this was a really easy decision

20
00:01:23,959 --> 00:01:28,200
Speaker 3: for the district court because the US Supreme Court had

21
00:01:28,240 --> 00:01:33,880
Speaker 3: addressed a very similar statute forty five years ago. Forty

22
00:01:33,920 --> 00:01:37,920
Speaker 3: five years ago, Kentucky had passed a law that mandated

23
00:01:38,040 --> 00:01:43,000
Speaker 3: every single public school classroom posts the Ten Commandments, and

24
00:01:43,240 --> 00:01:47,560
Speaker 3: the US Supreme Court said, this violates the Establishment clause,

25
00:01:47,720 --> 00:01:53,680
Speaker 3: is completely unconstitutional. There's no secular reason to have ten

26
00:01:53,720 --> 00:01:59,840
Speaker 3: Commandment texts in public schools, and laws passed by governments

27
00:02:00,280 --> 00:02:04,520
Speaker 3: has to have a primarily secular reason. Otherwise is it's

28
00:02:04,520 --> 00:02:05,960
Speaker 3: a primarily religious reason.

29
00:02:06,160 --> 00:02:06,920
Speaker 1: That's getting a.

30
00:02:06,880 --> 00:02:10,040
Speaker 3: Bit like a theocracy. And so when the case came

31
00:02:10,120 --> 00:02:14,560
Speaker 3: before the District Court, it had a precedence from the

32
00:02:14,560 --> 00:02:19,799
Speaker 3: Supreme Court directly on point that held that laws mandating

33
00:02:20,040 --> 00:02:25,560
Speaker 3: ten Commandments in public school classrooms violates the Establishment Corse, did.

34
00:02:25,760 --> 00:02:30,560
Speaker 2: The Supreme Court in nineteen eighty two did they change

35
00:02:30,840 --> 00:02:33,840
Speaker 2: the test that they had used in that case.

36
00:02:34,560 --> 00:02:38,200
Speaker 3: So here's what's going on since nineteen eighty when this

37
00:02:38,320 --> 00:02:41,760
Speaker 3: decision was made. We have a very different Supreme Court

38
00:02:42,680 --> 00:02:47,000
Speaker 3: and we have very different Supreme Court rules. And that's

39
00:02:47,040 --> 00:02:51,839
Speaker 3: what Louisiana has binking on because at the time the

40
00:02:51,960 --> 00:02:57,200
Speaker 3: first case was decided, there was particular doctrine that controlled

41
00:02:57,200 --> 00:03:00,680
Speaker 3: the test that's known as a Lemon test. Now the

42
00:03:00,800 --> 00:03:04,160
Speaker 3: current Supreme Court has jettison that test, and it said

43
00:03:04,400 --> 00:03:07,480
Speaker 3: the way we're going to decide whether something violates separation

44
00:03:07,639 --> 00:03:09,680
Speaker 3: church and state is we're going to look at history

45
00:03:09,720 --> 00:03:14,480
Speaker 3: and tradition. And history and tradition is highly manipulable and

46
00:03:15,000 --> 00:03:20,440
Speaker 3: very contested. But Louisiana is probably banking on the Supreme

47
00:03:20,560 --> 00:03:27,720
Speaker 3: Court's willingness sort of construct history and uncover traditions that

48
00:03:27,800 --> 00:03:31,800
Speaker 3: would support Ten Commandments in public schools. So the answer is,

49
00:03:32,120 --> 00:03:36,800
Speaker 3: the doctrine has changed, court has changed. We currently have

50
00:03:36,880 --> 00:03:40,360
Speaker 3: a court that is much more receptive to Christianity and

51
00:03:40,440 --> 00:03:43,320
Speaker 3: public schools, and it's not at all clear what it's

52
00:03:43,360 --> 00:03:45,840
Speaker 3: going to do when it revisits this case.

53
00:03:46,480 --> 00:03:50,560
Speaker 2: Louisiana said that the law was passed to teach students

54
00:03:50,600 --> 00:03:54,240
Speaker 2: about the Ten Commandments' importance to the American legal system.

55
00:03:54,560 --> 00:03:56,480
Speaker 4: That was one of their arguments.

56
00:03:56,720 --> 00:04:00,120
Speaker 3: They had many arguments. Yes, So there are lots of

57
00:04:00,240 --> 00:04:06,480
Speaker 3: different strategies that you could use when accused of violating

58
00:04:06,520 --> 00:04:09,960
Speaker 3: the Establishment clause, and one of them and I just

59
00:04:10,080 --> 00:04:13,440
Speaker 3: finished a paper sort of addressing precisely this question. So

60
00:04:13,720 --> 00:04:16,720
Speaker 3: I delighted that you're having me on to talk about it.

61
00:04:16,800 --> 00:04:20,200
Speaker 3: So one of these strategies is what I am calling

62
00:04:20,760 --> 00:04:27,120
Speaker 3: secular washing, and that's when something that is inherently religious,

63
00:04:27,200 --> 00:04:32,159
Speaker 3: an inherent religious symbol, inherentlygigious text like a giant Latin

64
00:04:32,240 --> 00:04:36,400
Speaker 3: cross or the Ten Commandments from the Holy Bible, is

65
00:04:36,520 --> 00:04:41,279
Speaker 3: recharacterized as something that's actually secular. And so one of

66
00:04:41,279 --> 00:04:45,800
Speaker 3: the things that Louisiana is trying to do is argue

67
00:04:46,360 --> 00:04:51,120
Speaker 3: that these Ten Commandments, this is not religion, this is history.

68
00:04:51,600 --> 00:04:55,359
Speaker 3: It's just history, and therefore, you know, it's not really

69
00:04:55,400 --> 00:04:59,560
Speaker 3: problematic at all under the establishment clause. It's not even

70
00:04:59,600 --> 00:05:02,760
Speaker 3: about really, so what's all the fuss about the history

71
00:05:02,800 --> 00:05:05,680
Speaker 3: of our country, the importance of the Ten Commandments to

72
00:05:05,760 --> 00:05:09,839
Speaker 3: our law, and the importance of the Ten Commandments to

73
00:05:10,640 --> 00:05:15,799
Speaker 3: our values. This is again the bottom line with secular washing,

74
00:05:16,320 --> 00:05:20,760
Speaker 3: is trying to recharacterize something that is obviously religious, but

75
00:05:20,960 --> 00:05:24,800
Speaker 3: to claim that no, it's not really it's actually secular

76
00:05:25,240 --> 00:05:27,719
Speaker 3: if you truly understood what it was all about.

77
00:05:28,200 --> 00:05:32,040
Speaker 2: The attorney for the challengers try to stress the religious

78
00:05:32,040 --> 00:05:35,960
Speaker 2: intent of the law's author, who he quoted as saying,

79
00:05:36,080 --> 00:05:39,360
Speaker 2: it's so important that our children learn what God says

80
00:05:39,480 --> 00:05:42,320
Speaker 2: is right and what he says is wrong.

81
00:05:43,080 --> 00:05:46,839
Speaker 3: Yes, the claim that this is about history is ridiculous.

82
00:05:47,040 --> 00:05:51,920
Speaker 3: It's clearly about trying to reintroduce Christianity into the public schools.

83
00:05:52,080 --> 00:05:55,440
Speaker 3: And the sponsors themselves, as you started to cite, are

84
00:05:55,680 --> 00:05:59,839
Speaker 3: not really hiding the fact. The litigators might be trying

85
00:05:59,839 --> 00:06:04,200
Speaker 3: to to cover up the religious motivation behind the law,

86
00:06:04,320 --> 00:06:07,240
Speaker 3: but the sponsors were quite clear it was about making

87
00:06:07,279 --> 00:06:09,880
Speaker 3: sure children understood God's words.

88
00:06:10,839 --> 00:06:15,440
Speaker 2: How does Louisiana defend against the fact that there are

89
00:06:15,960 --> 00:06:22,159
Speaker 2: references to God and the Sabbath in the first four Commandments, the.

90
00:06:22,040 --> 00:06:25,440
Speaker 3: First five commandment, they're all religious. I am your God,

91
00:06:25,760 --> 00:06:28,800
Speaker 3: you shall have no other God. You shall not take

92
00:06:28,880 --> 00:06:32,800
Speaker 3: my name in vain. You should observe the Sabbath. The

93
00:06:32,920 --> 00:06:37,520
Speaker 3: first five are religious commandments. There's absolutely nothing secular about them,

94
00:06:37,560 --> 00:06:40,560
Speaker 3: and even the others are not altogether secular. Honor thy

95
00:06:40,800 --> 00:06:45,960
Speaker 3: Mother and Father, but it's ultimately a religious obligations. Kind

96
00:06:46,000 --> 00:06:49,760
Speaker 3: of a hard argument to make that this is not religious.

97
00:06:49,839 --> 00:06:52,760
Speaker 3: I mean, it is from the Holy Bible. But again,

98
00:06:52,839 --> 00:06:57,920
Speaker 3: what Louisiana is banking on is that the Supreme Court

99
00:06:58,560 --> 00:07:01,400
Speaker 3: is not going to analyze whether it's religious or not.

100
00:07:02,200 --> 00:07:05,680
Speaker 3: What instead it's going to do is ask is there

101
00:07:05,720 --> 00:07:11,120
Speaker 3: a history and traditions of Ten Commandments in public schools?

102
00:07:11,640 --> 00:07:15,480
Speaker 3: And if there is, then we're going to find it constitutional,

103
00:07:15,600 --> 00:07:20,040
Speaker 3: because that's the new test the Roberts Court has created

104
00:07:20,160 --> 00:07:23,000
Speaker 3: for challenges like these. The question is is this a

105
00:07:23,240 --> 00:07:28,000
Speaker 3: long standing religious practice? If it is, we're going to

106
00:07:28,040 --> 00:07:29,120
Speaker 3: find it constitutional.

107
00:07:29,920 --> 00:07:32,200
Speaker 2: Well, I mean, is there a history of having the

108
00:07:32,240 --> 00:07:33,680
Speaker 2: Ten Commandments in public schools?

109
00:07:33,960 --> 00:07:40,840
Speaker 3: So the answer is no and definitely no. Another tactic. Again,

110
00:07:41,040 --> 00:07:44,960
Speaker 3: there are lots of strategies that courts use. Part of

111
00:07:45,000 --> 00:07:48,600
Speaker 3: the challenge when you're trying to define whether a practice

112
00:07:49,320 --> 00:07:52,360
Speaker 3: is deeply rooted in our history, whether there's a long

113
00:07:52,440 --> 00:07:56,120
Speaker 3: standing tradition of a particular practice, is how you define

114
00:07:56,160 --> 00:08:01,280
Speaker 3: the practice. Defining the practice is really key, and the

115
00:08:01,320 --> 00:08:05,160
Speaker 3: State of Louisiana is trying to define the practice as

116
00:08:05,600 --> 00:08:09,000
Speaker 3: any appearance of the Ten Commandments in public schools, although

117
00:08:09,200 --> 00:08:14,000
Speaker 3: the more accurate is is there a long history? Is

118
00:08:14,000 --> 00:08:20,160
Speaker 3: there a practice of posting Ten Commandment posters in public schools?

119
00:08:20,640 --> 00:08:21,640
Speaker 1: And that matters?

120
00:08:22,240 --> 00:08:27,760
Speaker 3: That matters because the Supreme Court has never completely banned

121
00:08:28,080 --> 00:08:31,400
Speaker 3: the Bible or the Ten Commandments from public schools. It

122
00:08:31,480 --> 00:08:37,040
Speaker 3: is entirely constitutional to talk about the Ten Commandments in

123
00:08:37,080 --> 00:08:41,000
Speaker 3: a secular course of study. So if you're studying literature,

124
00:08:41,040 --> 00:08:45,040
Speaker 3: for example, absolutely you could study the King James Bible,

125
00:08:45,120 --> 00:08:48,480
Speaker 3: which is a masterpiece of writing. Or if you're in

126
00:08:48,480 --> 00:08:52,960
Speaker 3: a world histories class, obviously you can compare and contrast

127
00:08:53,120 --> 00:08:56,560
Speaker 3: the Holy Commandments of different religions. But the thing you're

128
00:08:56,720 --> 00:09:00,880
Speaker 3: not supposed to be able to do is to cosletize

129
00:09:01,160 --> 00:09:07,040
Speaker 3: or priests or try and teach religious tenants as the

130
00:09:07,040 --> 00:09:11,320
Speaker 3: true word of God. That is what is forbidden in class.

131
00:09:11,360 --> 00:09:13,079
Speaker 3: So it's neither here nor there.

132
00:09:13,320 --> 00:09:14,160
Speaker 1: If people have.

133
00:09:14,720 --> 00:09:18,120
Speaker 3: Studied the Ten Commandments in class in public school before,

134
00:09:18,679 --> 00:09:23,240
Speaker 3: the question is have they posted Ten Commandments on the

135
00:09:23,280 --> 00:09:27,760
Speaker 3: walls as a way of bringing children closer to God?

136
00:09:28,440 --> 00:09:31,480
Speaker 3: That's the real question, And the answer to that question

137
00:09:31,600 --> 00:09:34,920
Speaker 3: is absolutely not. There is no history of any such thing.

138
00:09:35,679 --> 00:09:39,120
Speaker 3: One of the things that the district Court did was

139
00:09:39,280 --> 00:09:44,840
Speaker 3: listen to an expert on this sac subject testify about

140
00:09:44,880 --> 00:09:50,160
Speaker 3: the history of religion in early common schools up through today,

141
00:09:50,720 --> 00:09:56,560
Speaker 3: and he said, absolutely, there is no history whatsoever of

142
00:09:57,520 --> 00:10:03,160
Speaker 3: Ten Commandment displays and public school and Louisiana hasn't offered

143
00:10:03,200 --> 00:10:07,199
Speaker 3: any evidence either. Again, the test is is there a

144
00:10:07,360 --> 00:10:12,240
Speaker 3: history and tradition of this particular practice, this particular practice

145
00:10:12,320 --> 00:10:17,000
Speaker 3: ten Commandments posters. The answer is no, and Louisiana has

146
00:10:17,240 --> 00:10:18,440
Speaker 3: no evidence.

147
00:10:18,000 --> 00:10:21,360
Speaker 2: Otherwise, this is expected to go to the Supreme Court.

148
00:10:21,520 --> 00:10:24,199
Speaker 2: Do you think that this posting of the Ten Commandments

149
00:10:24,240 --> 00:10:28,480
Speaker 2: goes even too far for this court, which favors religion

150
00:10:28,800 --> 00:10:30,720
Speaker 2: in almost every case it comes up in.

151
00:10:31,160 --> 00:10:34,840
Speaker 3: I don't know, I really don't. This court seems to

152
00:10:35,360 --> 00:10:43,000
Speaker 3: have been welcoming religion into all areas of the government

153
00:10:43,040 --> 00:10:49,040
Speaker 3: where has previously been unconstitutional. It looks like it's about

154
00:10:49,080 --> 00:10:54,360
Speaker 3: to remake Establishment Cause doctrine when it comes to funding religion. Again.

155
00:10:54,559 --> 00:10:58,599
Speaker 3: This is a court that upheld a giant Latin cross

156
00:10:58,880 --> 00:11:04,840
Speaker 3: a government and cross monument as perfectly constitutional. This is

157
00:11:04,880 --> 00:11:09,360
Speaker 3: a court that has held that a coach on duty

158
00:11:10,080 --> 00:11:14,600
Speaker 3: may pray in the middle of football fields immediately after

159
00:11:14,760 --> 00:11:18,880
Speaker 3: games in front of his students, despite three prior Establishment

160
00:11:18,920 --> 00:11:24,360
Speaker 3: Clause decisions suggesting that's not constitutional. So I don't know

161
00:11:24,440 --> 00:11:27,319
Speaker 3: where the Supreme Court draws the line, and I have

162
00:11:27,400 --> 00:11:30,560
Speaker 3: no confidence that it's going to draw the line here.

163
00:11:30,880 --> 00:11:31,160
Speaker 1: Now.

164
00:11:31,360 --> 00:11:34,200
Speaker 3: I sure hope I'm wrong, but I can't confidently say

165
00:11:34,200 --> 00:11:34,920
Speaker 3: one way or the other.

166
00:11:35,320 --> 00:11:38,200
Speaker 2: I mean, it seemed like this Fifth Circuit panel, which

167
00:11:38,600 --> 00:11:42,760
Speaker 2: was one Reagan appointee, one Clinton appointee, and one Obama appointee,

168
00:11:43,240 --> 00:11:45,920
Speaker 2: seem pretty critical of Louisiana's position.

169
00:11:46,760 --> 00:11:51,600
Speaker 3: It's blatantly unconstitutional under any test, and certainly under Supreme

170
00:11:51,640 --> 00:11:54,920
Speaker 3: Court president that has not yet been over ruled. It's

171
00:11:55,040 --> 00:12:00,560
Speaker 3: obviously unconstitutional. There's no question that it's unconstitutional. And again,

172
00:12:00,679 --> 00:12:05,480
Speaker 3: to the extent that Louisiana tried to create a history

173
00:12:05,640 --> 00:12:09,600
Speaker 3: and tradition of Ten Commandments in public schools, its proof

174
00:12:09,720 --> 00:12:13,040
Speaker 3: was really weak. I mean, part of their proof was

175
00:12:13,080 --> 00:12:16,800
Speaker 3: a quotation from James Madison that they've just made up.

176
00:12:17,280 --> 00:12:18,160
Speaker 4: What was that?

177
00:12:18,600 --> 00:12:24,080
Speaker 3: Here is the quotation in the Legislative History History Records

178
00:12:24,160 --> 00:12:27,120
Speaker 3: that James Madison, the fourth President of the United States,

179
00:12:27,200 --> 00:12:29,760
Speaker 3: stated that we have staked the whole future of our

180
00:12:29,840 --> 00:12:33,720
Speaker 3: new nations upon the capacity of each of ourselves to

181
00:12:33,760 --> 00:12:37,839
Speaker 3: govern ourselves according to the moral principles of the Ten Commandments.

182
00:12:38,800 --> 00:12:42,199
Speaker 3: He never said that they have been called on that.

183
00:12:42,400 --> 00:12:47,280
Speaker 3: And again they have trying to construct a history and

184
00:12:47,360 --> 00:12:53,000
Speaker 3: tradition for the Supreme Court of Ten Commandments in public schools.

185
00:12:53,040 --> 00:12:56,440
Speaker 3: The best they can come up with are three different

186
00:12:56,480 --> 00:13:00,160
Speaker 3: textbooks that included it, So they have no history of

187
00:13:00,280 --> 00:13:05,120
Speaker 3: actual displays or posters, just textbooks that might have included

188
00:13:05,120 --> 00:13:08,160
Speaker 3: the Ten Commandments, and that's really the extent of it.

189
00:13:08,240 --> 00:13:12,120
Speaker 3: And of course one of them existed before the country

190
00:13:12,240 --> 00:13:14,800
Speaker 3: was formed. That was used for colonies, which is not

191
00:13:14,880 --> 00:13:20,439
Speaker 3: really very informative, and it was also buriantly anti Catholic, right,

192
00:13:20,520 --> 00:13:26,200
Speaker 3: the part of their history is relying on Protestant practices

193
00:13:26,280 --> 00:13:30,920
Speaker 3: that reflect virulent anti Catholicism, which in other contexts the

194
00:13:30,960 --> 00:13:34,479
Speaker 3: Court has said, we will not find this history dispositive

195
00:13:34,520 --> 00:13:36,200
Speaker 3: in our constitutional inquiry.

196
00:13:37,440 --> 00:13:40,800
Speaker 2: Their argument that the controversy, you know, it wasn't ripe

197
00:13:40,960 --> 00:13:43,160
Speaker 2: and the challenges don't have standing.

198
00:13:43,760 --> 00:13:47,800
Speaker 3: I mean again, a common tactic for trying to jodge

199
00:13:48,240 --> 00:13:55,000
Speaker 3: an establishment clause violation, in addition to secular washing, is

200
00:13:55,080 --> 00:13:59,320
Speaker 3: to claim that the plaintiffs don't have standing. That is,

201
00:13:59,440 --> 00:14:02,520
Speaker 3: in this case, they say it's too early to bring

202
00:14:02,720 --> 00:14:07,520
Speaker 3: this claim. It hasn't actually been put into effect yet.

203
00:14:08,120 --> 00:14:11,720
Speaker 3: So more specifically, they're saying it's brought too early. It's

204
00:14:11,800 --> 00:14:15,320
Speaker 3: the legal term is unripe. It's not ripe. There's not

205
00:14:15,520 --> 00:14:19,640
Speaker 3: enough of a record. But Frankly, you don't need any

206
00:14:19,680 --> 00:14:23,000
Speaker 3: more information than is already present to decide whether it's

207
00:14:23,080 --> 00:14:27,520
Speaker 3: unconstitutional or not. They're clearly hoping that this will be

208
00:14:27,560 --> 00:14:32,240
Speaker 3: a vehicle for the Supreme Court to overrule its prior

209
00:14:32,360 --> 00:14:40,120
Speaker 3: precedents holding you can't bost Christian dogma onto public school students.

210
00:14:40,320 --> 00:14:44,840
Speaker 3: They're trying to overrule the prior case, and so the

211
00:14:44,960 --> 00:14:49,920
Speaker 3: question will be will the Robberts Court take this invitation

212
00:14:50,400 --> 00:14:56,280
Speaker 3: and happily overrule prior precedent and allow religion into the

213
00:14:56,320 --> 00:15:01,080
Speaker 3: public schools, and not just religion Christianity. These are Christian

214
00:15:01,160 --> 00:15:02,520
Speaker 3: Ten Commandments.

215
00:15:02,360 --> 00:15:03,320
Speaker 4: And even Christianity.

216
00:15:03,400 --> 00:15:07,240
Speaker 2: I mean, that's the Saint James version exactly right.

217
00:15:07,320 --> 00:15:10,640
Speaker 3: People say, oh, but Jews have the Ten Commandments. Yes,

218
00:15:10,680 --> 00:15:13,680
Speaker 3: they do, but their ten Commandments are different than the

219
00:15:13,680 --> 00:15:18,800
Speaker 3: ones posted, and the Catholic Ten Commandments are also different.

220
00:15:19,480 --> 00:15:23,800
Speaker 3: So not only is the Ten Commandments favoring Christianity, it's

221
00:15:23,840 --> 00:15:29,160
Speaker 3: favoring one branch of Christianity over others. And if the

222
00:15:29,280 --> 00:15:33,600
Speaker 3: establishment clause means anything, it's that the government can't favor

223
00:15:33,800 --> 00:15:38,400
Speaker 3: some religions over others. And that is inevitably what happens

224
00:15:38,640 --> 00:15:43,400
Speaker 3: when a school posts the Ten commandments in its classrooms.

225
00:15:44,040 --> 00:15:46,440
Speaker 2: It'll be interesting to see how this fifth Circuit Panel

226
00:15:46,480 --> 00:15:50,480
Speaker 2: with two Democratic appointees on it rules in this case.

227
00:15:50,960 --> 00:15:54,600
Speaker 2: Thanks so much, Caroline. That's Professor Caroline Malacorbin of the

228
00:15:54,720 --> 00:15:59,080
Speaker 2: University of Miami Law School. Coming up next. Trump lays

229
00:15:59,120 --> 00:16:03,320
Speaker 2: the groundwork for a sweeping anti climate agenda. I'm June

230
00:16:03,320 --> 00:16:07,320
Speaker 2: gross when you're listening to Bloomberg In the dizzy number

231
00:16:07,320 --> 00:16:11,400
Speaker 2: of executive orders President Donald Trump signed on day one,

232
00:16:11,920 --> 00:16:15,240
Speaker 2: where a series of orders laying the groundwork for a

233
00:16:15,280 --> 00:16:19,640
Speaker 2: sweeping overhaul of US energy policy, putting the weight of

234
00:16:19,680 --> 00:16:24,160
Speaker 2: the federal government behind fossil fuel production and pulling back

235
00:16:24,240 --> 00:16:28,520
Speaker 2: from the fight against climate change. Trump insists his drill Baby,

236
00:16:28,600 --> 00:16:31,960
Speaker 2: drill program will bring down prices and inflation.

237
00:16:32,920 --> 00:16:36,600
Speaker 1: It just works that way. It just economically works that way.

238
00:16:36,640 --> 00:16:38,960
Speaker 4: When the oil comes down, its will bring down prices.

239
00:16:39,000 --> 00:16:42,080
Speaker 2: Then you won't have inflation, and then the interest rates

240
00:16:42,080 --> 00:16:45,280
Speaker 2: will come down. My guest is an expert in environmental law,

241
00:16:45,360 --> 00:16:48,960
Speaker 2: Pat Parento, a professor with the Vermont Law and Graduate School.

242
00:16:49,480 --> 00:16:50,000
Speaker 4: Let's start.

243
00:16:50,160 --> 00:16:55,480
Speaker 2: Trump declared a national energy emergency on day one. What

244
00:16:55,640 --> 00:16:57,400
Speaker 2: does that allow him to do?

245
00:16:58,800 --> 00:17:05,560
Speaker 1: Well? Declaration of a national emergency just generally does quote

246
00:17:05,720 --> 00:17:10,560
Speaker 1: unlock certain provisions of federal law. But it's a statute

247
00:17:10,680 --> 00:17:16,160
Speaker 1: by statute kind of thing. The declaration itself doesn't do anything.

248
00:17:16,240 --> 00:17:20,800
Speaker 1: It's a predicate for what's to come next. So now

249
00:17:20,840 --> 00:17:25,360
Speaker 1: you have to go through individual statutes. For example, offshore

250
00:17:25,800 --> 00:17:29,800
Speaker 1: oil and gas leasing that's governed by the Outer Continental

251
00:17:29,800 --> 00:17:33,760
Speaker 1: Shelf Lands Act. If it's an online oil and gas development,

252
00:17:33,840 --> 00:17:37,600
Speaker 1: the drill, baby drill, the mantra that's governed by a

253
00:17:37,720 --> 00:17:40,920
Speaker 1: law known as the Federal Land Policy and Management Act,

254
00:17:41,200 --> 00:17:45,440
Speaker 1: and so on and so forth. So the orders themselves

255
00:17:45,840 --> 00:17:50,399
Speaker 1: are a clarion call, right, and a policy announcement clearly

256
00:17:50,960 --> 00:17:54,240
Speaker 1: and a direction that the administration is going to go.

257
00:17:54,680 --> 00:17:58,240
Speaker 1: But legally it's going to go statute by statute, and

258
00:17:58,320 --> 00:18:01,879
Speaker 1: in fact, project by project, whether you're talking about a

259
00:18:01,960 --> 00:18:06,240
Speaker 1: gas pipeline or an oil pipeline or an LNG terminal

260
00:18:06,520 --> 00:18:09,960
Speaker 1: or whatever, it's gonna go, you know, project by project,

261
00:18:10,040 --> 00:18:10,720
Speaker 1: law by law.

262
00:18:11,520 --> 00:18:15,880
Speaker 2: He also ordered quarterly meetings of a committee of cabinet

263
00:18:15,960 --> 00:18:18,920
Speaker 2: level officials known as the Gods Squad.

264
00:18:19,280 --> 00:18:20,679
Speaker 4: What is the God Squad?

265
00:18:20,760 --> 00:18:23,400
Speaker 2: They've only met a handful of times over the past four.

266
00:18:23,240 --> 00:18:27,080
Speaker 1: Decades, right, and I've been the only lawyer who has

267
00:18:27,119 --> 00:18:31,320
Speaker 1: appeared in all four of the god Squad proceeding. So

268
00:18:32,680 --> 00:18:33,320
Speaker 1: you're talking to you.

269
00:18:33,440 --> 00:18:35,320
Speaker 4: I don't know if or bad I'm trying to.

270
00:18:36,000 --> 00:18:39,000
Speaker 1: I don't know. I can tell you this. The Endangered

271
00:18:39,000 --> 00:18:43,800
Speaker 1: Species Committee is not a standing committee. Okay, it doesn't

272
00:18:43,840 --> 00:18:48,160
Speaker 1: meet quarterly or regularly at all. In fact, it can

273
00:18:48,280 --> 00:18:52,280
Speaker 1: only meet as the Endangered Species Committee when there is

274
00:18:52,320 --> 00:18:57,320
Speaker 1: an application in front of it that meets really specific

275
00:18:57,960 --> 00:19:02,959
Speaker 1: statutory criteria that I had a hand in drafting, and

276
00:19:03,000 --> 00:19:06,720
Speaker 1: the most basic one is there can be no exemption

277
00:19:06,880 --> 00:19:13,280
Speaker 1: process unless there's what's called an irreconcilable conflict between a

278
00:19:13,440 --> 00:19:17,880
Speaker 1: specific project. Maybe it's a water project, a highway project,

279
00:19:18,040 --> 00:19:20,960
Speaker 1: timber sale project, but there has to be a really

280
00:19:21,000 --> 00:19:26,280
Speaker 1: specific project federally authorized or undertaken, and it then has

281
00:19:26,320 --> 00:19:31,600
Speaker 1: to conflict with the commands under Section seven of the

282
00:19:31,680 --> 00:19:35,800
Speaker 1: Endangered Species Act, meaning the activity in question has to jeopardize.

283
00:19:35,880 --> 00:19:39,880
Speaker 1: That's the term the continued survival of a listed species

284
00:19:39,960 --> 00:19:43,600
Speaker 1: endangered or threatened, right, So we don't have anything like that,

285
00:19:43,960 --> 00:19:46,119
Speaker 1: As you point out, there hasn't been one since the

286
00:19:46,200 --> 00:19:51,119
Speaker 1: spotted owl got Squad proceeding. Where I was the owl's lawyer,

287
00:19:51,280 --> 00:19:54,959
Speaker 1: if you will, because I was the special counsel appointed

288
00:19:55,240 --> 00:19:59,720
Speaker 1: to the Fish and Wildlife Service to present the case

289
00:20:00,320 --> 00:20:03,720
Speaker 1: for preserving the owl's habitat to the God Squad. So

290
00:20:03,760 --> 00:20:06,480
Speaker 1: there hasn't been one since nineteen ninety two, it's my point.

291
00:20:07,200 --> 00:20:10,040
Speaker 1: And there is nothing on the horizon that would give

292
00:20:10,160 --> 00:20:12,959
Speaker 1: rise to convening the God Squad.

293
00:20:13,520 --> 00:20:15,399
Speaker 2: Pat I wish I could say I was once the

294
00:20:15,480 --> 00:20:19,399
Speaker 2: spotted owl's lawyer. That's so No, No, Really, saving an

295
00:20:19,480 --> 00:20:23,200
Speaker 2: endangered species is a higher calling in my book. Back

296
00:20:23,200 --> 00:20:25,760
Speaker 2: to the executive orders now, so Trump is trying to

297
00:20:25,800 --> 00:20:31,840
Speaker 2: speed up project reviews using emergency consultations under the Endangered

298
00:20:31,880 --> 00:20:37,000
Speaker 2: Species Act, which is usually reserved for natural disasters. And

299
00:20:37,440 --> 00:20:41,200
Speaker 2: Noah Greenwald, he's the Endangered Species program director the Center

300
00:20:41,240 --> 00:20:45,399
Speaker 2: for Biological Diversity, said this executive order is a death

301
00:20:45,480 --> 00:20:50,240
Speaker 2: warrant for polar bears, lesser prairie chickens, whooping cranes, and

302
00:20:50,320 --> 00:20:53,280
Speaker 2: so many more species on the brink of extinction.

303
00:20:53,800 --> 00:20:54,320
Speaker 4: Is he right?

304
00:20:55,000 --> 00:20:58,199
Speaker 1: Well? I love Noah, but I wouldn't go so far

305
00:20:58,240 --> 00:21:00,679
Speaker 1: as to say it's a death warrant. Okay, it's a

306
00:21:00,760 --> 00:21:05,919
Speaker 1: threat from this administration to use the exemption process and

307
00:21:06,119 --> 00:21:10,880
Speaker 1: the accelerated consultation process to speed up fossil fuel development.

308
00:21:11,480 --> 00:21:15,240
Speaker 1: But here's the thing again, there's law that has to

309
00:21:15,240 --> 00:21:17,880
Speaker 1: be followed. You don't just wave your arms and sign

310
00:21:17,880 --> 00:21:20,800
Speaker 1: a piece of paper calling it an order and then

311
00:21:21,640 --> 00:21:25,240
Speaker 1: you start building stuff. That's not the way it works.

312
00:21:25,800 --> 00:21:29,840
Speaker 1: So if, in fact, the Secretary of Interior, the Secretary

313
00:21:29,920 --> 00:21:32,880
Speaker 1: of the Department of Energy, or some other cabinet official

314
00:21:33,280 --> 00:21:37,120
Speaker 1: starts authorizing projects that conflict with the Endangered Species Act

315
00:21:37,359 --> 00:21:41,760
Speaker 1: that don't go through the full formal consultation process, I'm

316
00:21:41,800 --> 00:21:45,399
Speaker 1: sure that the Centers for Biological Diversity will be the

317
00:21:45,440 --> 00:21:48,119
Speaker 1: first one to file a lawsuit, and they're going to

318
00:21:48,160 --> 00:21:53,040
Speaker 1: win because here's the thing. The emergency consultation procedures are

319
00:21:53,040 --> 00:21:58,480
Speaker 1: triggered by disasters that threaten human life and property. Where

320
00:21:58,600 --> 00:22:02,960
Speaker 1: is that happening. That's happening in California, for sure, but

321
00:22:03,000 --> 00:22:05,760
Speaker 1: it's not the result of the Endangered Species Act. Here

322
00:22:05,840 --> 00:22:12,040
Speaker 1: comes the punchline. It's climate stupid. So that's what's threatening

323
00:22:12,400 --> 00:22:16,600
Speaker 1: natural disasters right now. It's not water management in California,

324
00:22:17,000 --> 00:22:21,920
Speaker 1: it's climate change accelerating and exacerbating the wildfire problems in

325
00:22:22,000 --> 00:22:24,880
Speaker 1: California has always had, So I'm not ready to say

326
00:22:24,920 --> 00:22:27,720
Speaker 1: that just because Trump issued in order, species are going

327
00:22:27,800 --> 00:22:30,199
Speaker 1: to go extinct, not without a hell of a fight anyway.

328
00:22:30,400 --> 00:22:33,080
Speaker 2: Pat is he trying to blame the water crisis in

329
00:22:33,160 --> 00:22:34,840
Speaker 2: California on that little fish?

330
00:22:35,560 --> 00:22:38,760
Speaker 1: Yes, he is. Although the delta smelt he's called the

331
00:22:38,840 --> 00:22:41,760
Speaker 1: delta smelt out. The Delta smelt, by the way, now

332
00:22:41,840 --> 00:22:46,120
Speaker 1: exists in captivity. It's functionally extinct in the wild. That's

333
00:22:46,160 --> 00:22:50,760
Speaker 1: happened with other species like the California condor the blackfooted ferret.

334
00:22:50,800 --> 00:22:53,480
Speaker 1: There's a number of species that have gotten to the

335
00:22:53,520 --> 00:22:56,360
Speaker 1: point where they had to be taken into captive breeding

336
00:22:56,440 --> 00:22:59,840
Speaker 1: programs and then reintroduced into the wild. That's the case

337
00:23:00,200 --> 00:23:02,360
Speaker 1: with the Delta smelt. But here's the other thing. There

338
00:23:02,400 --> 00:23:07,200
Speaker 1: are five species of fish, including two species of salmon,

339
00:23:07,440 --> 00:23:11,199
Speaker 1: which are recreationally, commercially valuable and also valuable to the

340
00:23:11,280 --> 00:23:15,080
Speaker 1: tribes in California. So there are five different species involved

341
00:23:15,359 --> 00:23:19,080
Speaker 1: in the San Joaquin Delta where the Delta smelt habitat exists.

342
00:23:19,080 --> 00:23:22,920
Speaker 1: So it isn't one species, it's a whole suite. In fact,

343
00:23:22,960 --> 00:23:26,600
Speaker 1: it's the whole ecosystem of the San Joaquin Delta that's

344
00:23:26,600 --> 00:23:27,520
Speaker 1: at risk. Here.

345
00:23:28,240 --> 00:23:32,920
Speaker 2: One promise he made repeatedly during the campaign was drill,

346
00:23:33,000 --> 00:23:33,640
Speaker 2: baby drill.

347
00:23:33,760 --> 00:23:35,040
Speaker 4: That's his policy.

348
00:23:35,440 --> 00:23:38,560
Speaker 2: And in his inaugural address he said, we will be

349
00:23:38,600 --> 00:23:42,520
Speaker 2: a rich nation again, and it is that liquid gold

350
00:23:42,800 --> 00:23:44,480
Speaker 2: under our feet that will help.

351
00:23:44,840 --> 00:23:45,080
Speaker 4: Right.

352
00:23:45,240 --> 00:23:48,960
Speaker 1: So here's the facts. That's a fact free statement, right.

353
00:23:49,400 --> 00:23:53,760
Speaker 1: So the fact is the United States is the largest

354
00:23:54,280 --> 00:23:59,080
Speaker 1: producer an exporter of oil and gas on the planet.

355
00:24:00,119 --> 00:24:03,320
Speaker 1: And oil and gas development, contrary to a lot of

356
00:24:03,840 --> 00:24:09,640
Speaker 1: climate activists, tremendously exponentially expanded under Biden in the last

357
00:24:09,640 --> 00:24:14,560
Speaker 1: four years. So A, there is no energy emergency. B

358
00:24:15,760 --> 00:24:19,879
Speaker 1: as to drill, baby drill. Here's the data. Twenty five

359
00:24:20,000 --> 00:24:24,560
Speaker 1: million acres of federal lands on land oiling gas are

360
00:24:24,640 --> 00:24:28,680
Speaker 1: under lease already not being developed. Twenty five million acres

361
00:24:28,720 --> 00:24:34,680
Speaker 1: of public land. Secondly, there are nine thousand drilling permits

362
00:24:34,680 --> 00:24:38,160
Speaker 1: that have been issued. They're not being developed either. Why

363
00:24:38,200 --> 00:24:41,560
Speaker 1: not because there's a glut of oiling gas on the market.

364
00:24:42,240 --> 00:24:44,840
Speaker 1: Why are gasoline prices at the pump the lowest they've

365
00:24:44,840 --> 00:24:48,480
Speaker 1: been in seventy years? You're that right, seventy years. Go

366
00:24:48,600 --> 00:24:51,360
Speaker 1: back and look it up. Not since the nineteen fifties

367
00:24:51,400 --> 00:24:54,439
Speaker 1: have we seen prices this low at the pump. The

368
00:24:54,560 --> 00:24:58,080
Speaker 1: reason is there is a glut of oil and gas

369
00:24:58,119 --> 00:25:00,840
Speaker 1: on the market right now that could change course, but

370
00:25:01,000 --> 00:25:05,119
Speaker 1: as of right now, there's no basis to declare an

371
00:25:05,240 --> 00:25:08,879
Speaker 1: energy emergency. There certainly is a climate emergency, or if

372
00:25:08,880 --> 00:25:11,160
Speaker 1: you want to look at it another way, the real

373
00:25:11,320 --> 00:25:16,359
Speaker 1: energy emergency is the failure to convert and transition away

374
00:25:16,400 --> 00:25:21,320
Speaker 1: from fossil fuels and to the cleaner sources of energy solar, wind,

375
00:25:21,320 --> 00:25:24,040
Speaker 1: which of course Trump hates because it interferes with his

376
00:25:24,119 --> 00:25:27,800
Speaker 1: golf course in Scotland. But beyond that, you know where

377
00:25:27,880 --> 00:25:30,720
Speaker 1: is most of the renewable energy being developed right now?

378
00:25:30,960 --> 00:25:36,440
Speaker 1: In Republican states Texas, Oklahoma, Iowa, and so forth. So

379
00:25:36,880 --> 00:25:39,919
Speaker 1: the real emergency is we need to get on with

380
00:25:40,040 --> 00:25:44,360
Speaker 1: the business of transitioning to cleaner, more efficient, and actually

381
00:25:44,480 --> 00:25:46,560
Speaker 1: more profitable sources of energy.

382
00:25:47,080 --> 00:25:50,440
Speaker 2: So, as you mentioned, he's been vocal about his dislike

383
00:25:50,600 --> 00:25:54,000
Speaker 2: of wind for years. What is he trying to do

384
00:25:54,080 --> 00:25:58,960
Speaker 2: with these executive orders and alternative energy like solar and wind.

385
00:25:59,320 --> 00:26:04,200
Speaker 1: He's put up as he put it on offshore wind

386
00:26:04,400 --> 00:26:07,280
Speaker 1: projects that are still in the permit process. There are

387
00:26:07,359 --> 00:26:10,280
Speaker 1: nine of them that have already received their permits, and

388
00:26:10,320 --> 00:26:12,800
Speaker 1: they aren't caught by the executive order, but there are

389
00:26:12,880 --> 00:26:16,560
Speaker 1: seven others that are not finished with permitting, and so

390
00:26:16,600 --> 00:26:19,520
Speaker 1: he's he's put a pause on them, and he's threatened

391
00:26:19,520 --> 00:26:24,840
Speaker 1: to withdraw major portions of offshore wind areas, particularly in

392
00:26:24,880 --> 00:26:27,400
Speaker 1: what he calls the Gulf of America, which the rest

393
00:26:27,440 --> 00:26:30,080
Speaker 1: of the world still calls the Gulf of Mexico. And

394
00:26:30,400 --> 00:26:32,359
Speaker 1: that's a problem or an issue that's going to have

395
00:26:32,400 --> 00:26:35,040
Speaker 1: to go to the courts, because once again, the President

396
00:26:35,080 --> 00:26:39,359
Speaker 1: does have authority to withdraw areas of the ocean from development,

397
00:26:39,400 --> 00:26:43,320
Speaker 1: including I would acknowledge wind development, but again there's a

398
00:26:43,400 --> 00:26:46,879
Speaker 1: practice by which you do that, including doing an environmental

399
00:26:46,920 --> 00:26:51,040
Speaker 1: assessment and changing the leasing programs that already have been

400
00:26:51,080 --> 00:26:56,000
Speaker 1: approved and so forth, so as to further development offshore,

401
00:26:56,640 --> 00:27:00,399
Speaker 1: that'll be a subject of litigation as well. Here's the

402
00:27:00,480 --> 00:27:03,639
Speaker 1: downside to all this is it is going to discourage investment.

403
00:27:04,000 --> 00:27:07,840
Speaker 1: There's been a lot of interest from European Union nations

404
00:27:07,960 --> 00:27:11,160
Speaker 1: like Norway and Denmark, which is pioneered a lot of

405
00:27:11,160 --> 00:27:14,200
Speaker 1: offshore win and they want to invest hundreds of millions

406
00:27:14,200 --> 00:27:17,360
Speaker 1: of dollars in offshore wind in the United States waters.

407
00:27:17,640 --> 00:27:20,800
Speaker 1: But of course this particular period of time would probably

408
00:27:21,280 --> 00:27:25,320
Speaker 1: discourage that kind of investment. So even though the orders

409
00:27:25,359 --> 00:27:29,679
Speaker 1: may lack some legal foundation, they probably will have the

410
00:27:29,720 --> 00:27:35,399
Speaker 1: desired effect of discouraging at least rapid development of wind

411
00:27:35,560 --> 00:27:37,560
Speaker 1: and in some cases, probably stolar as well.

412
00:27:38,119 --> 00:27:42,119
Speaker 2: City Group analysts have said that Trump's policies won't stop

413
00:27:42,160 --> 00:27:47,199
Speaker 2: the transition to green energy, citing its economic viability and

414
00:27:47,280 --> 00:27:51,720
Speaker 2: technological innovation. So in four years, how much damage do

415
00:27:51,760 --> 00:27:55,240
Speaker 2: you think he can do to the advancement of clean energy.

416
00:27:55,359 --> 00:27:59,280
Speaker 1: Through these orders and decisions and changes in rules and

417
00:27:59,400 --> 00:28:02,760
Speaker 1: rollbacks of environmental rules. I think he's going to get

418
00:28:02,760 --> 00:28:07,080
Speaker 1: tripped up repeatedly in court on those actions, but I

419
00:28:07,160 --> 00:28:10,280
Speaker 1: do think we're losing an awful lot of momentum and opportunity.

420
00:28:10,800 --> 00:28:13,120
Speaker 1: I do think there's going to be a discouraging effect

421
00:28:13,119 --> 00:28:16,320
Speaker 1: on the investment market for the next four years that

422
00:28:16,440 --> 00:28:19,480
Speaker 1: may take longer than that to rebound, And certainly, as

423
00:28:19,480 --> 00:28:22,440
Speaker 1: he drives more and more people away from federal service,

424
00:28:22,880 --> 00:28:25,840
Speaker 1: which he's intent on doing, that's going to have an

425
00:28:25,840 --> 00:28:30,160
Speaker 1: institutional impact on our ability to recover from these four

426
00:28:30,240 --> 00:28:34,119
Speaker 1: years and get back into the game of transitioning to

427
00:28:34,200 --> 00:28:38,760
Speaker 1: renewable energy and cleaner energy sources. Including electric vehicles, all

428
00:28:38,800 --> 00:28:42,080
Speaker 1: of which the marketplace is pushing. So I would agree

429
00:28:42,120 --> 00:28:45,840
Speaker 1: with the comment that he can't stop the transition that's underway.

430
00:28:46,000 --> 00:28:47,600
Speaker 1: He will certainly slow it down.

431
00:28:48,240 --> 00:28:50,720
Speaker 2: Stay with me, Pat, Coming up next on the Bloomberg

432
00:28:50,800 --> 00:28:54,280
Speaker 2: Lawn Show, I'll continue this conversation with Professor Pat Parento

433
00:28:54,480 --> 00:28:57,760
Speaker 2: of the Vermont Law in Graduate School. Well talk about

434
00:28:57,760 --> 00:29:04,040
Speaker 2: Trump's reversing course on electric vehicles, rescinding environmental justice initiatives,

435
00:29:04,360 --> 00:29:07,479
Speaker 2: and dropping out of the Paris Accords for the second time.

436
00:29:07,880 --> 00:29:11,520
Speaker 2: I'm June Grosso. When you're listening to Bloomberg. On day one,

437
00:29:11,640 --> 00:29:15,600
Speaker 2: President Donald Trump signed a series of executive orders laying

438
00:29:15,640 --> 00:29:19,920
Speaker 2: the groundwork for a sweeping overhaul of US energy policy,

439
00:29:20,320 --> 00:29:23,240
Speaker 2: putting the weight of the federal government behind fossil fuel

440
00:29:23,240 --> 00:29:27,240
Speaker 2: production and pulling it back from the fight against climate change.

441
00:29:27,560 --> 00:29:30,920
Speaker 2: I've been talking to environmental law expert Pat Parento, a

442
00:29:31,000 --> 00:29:34,600
Speaker 2: professor at the Vermont Law and Graduate School. You mentioned

443
00:29:34,640 --> 00:29:39,000
Speaker 2: electric vehicles. He's reversing course on electric vehicles. What were

444
00:29:39,000 --> 00:29:41,920
Speaker 2: the rules on electric vehicles in the Biden administration?

445
00:29:42,920 --> 00:29:44,520
Speaker 1: So there are two of them. There's one called the

446
00:29:44,640 --> 00:29:50,120
Speaker 1: tailpipe rule, which regulates tailpipe pollution from automobiles, primarily under

447
00:29:50,160 --> 00:29:52,200
Speaker 1: the Clean Air Act. And the other one is the

448
00:29:52,200 --> 00:29:56,680
Speaker 1: fuel Economy rule that the Department of Transportation, through the

449
00:29:56,760 --> 00:30:02,800
Speaker 1: National Highway Transportation Safety Administration, or NITSA as it's called, adopts.

450
00:30:02,920 --> 00:30:06,760
Speaker 1: These are the CAFE, the corporate average fuel economy standards

451
00:30:06,760 --> 00:30:11,240
Speaker 1: that get promulgated every few years. Right, So, both EPA

452
00:30:11,440 --> 00:30:16,640
Speaker 1: under Biden and NITSA under Biden adopted strong tailpipe and

453
00:30:16,640 --> 00:30:21,160
Speaker 1: fuel efficiency rules. They don't quote mandate electric vehicles. They

454
00:30:21,200 --> 00:30:25,320
Speaker 1: do anticipate that the standards put in place will move

455
00:30:25,680 --> 00:30:29,120
Speaker 1: more of the automotive fleet in the United States towards

456
00:30:29,320 --> 00:30:32,440
Speaker 1: electric vehicles and plug in hybrids. And in fact, it's

457
00:30:32,560 --> 00:30:35,680
Speaker 1: really the plug in hybrid market the one that's the

458
00:30:35,720 --> 00:30:39,760
Speaker 1: most promising and the most robust right now because a

459
00:30:39,800 --> 00:30:43,240
Speaker 1: lot of people and myself included, have you know, electric

460
00:30:43,360 --> 00:30:47,120
Speaker 1: vehicles that have very limited range capacity because there aren't

461
00:30:47,200 --> 00:30:50,600
Speaker 1: enough charging stations. That was another thing that Biden administration

462
00:30:51,160 --> 00:30:55,520
Speaker 1: was investing billions in building out charging stations across the country.

463
00:30:55,560 --> 00:30:57,920
Speaker 1: And I'm sure we're going to see both Trump and

464
00:30:58,000 --> 00:31:01,360
Speaker 1: probably the Republican Congress cutting back on some of those

465
00:31:01,360 --> 00:31:04,400
Speaker 1: investments as well, all of which is not good news

466
00:31:04,880 --> 00:31:09,120
Speaker 1: for a rapid uptake, as they say, of electric vehicles,

467
00:31:09,400 --> 00:31:12,760
Speaker 1: but it isn't going to stop electric vehicles. Large auto

468
00:31:12,800 --> 00:31:18,040
Speaker 1: manufacturers like Ford and others have actually supported these really

469
00:31:18,080 --> 00:31:22,080
Speaker 1: strong measures on tailpipe standards in fuel economy. They see

470
00:31:22,400 --> 00:31:26,200
Speaker 1: what's happening with the innovative technologies that are being spurred

471
00:31:26,240 --> 00:31:29,520
Speaker 1: frankly by places like countries like China, which is building

472
00:31:30,120 --> 00:31:33,240
Speaker 1: electric vehicles left and right. China is also the largest

473
00:31:33,240 --> 00:31:36,440
Speaker 1: producer of solar panels in the world, so we're feeding

474
00:31:36,960 --> 00:31:41,080
Speaker 1: economic development to China with these policies and orders that

475
00:31:41,120 --> 00:31:43,959
Speaker 1: are coming out of the White House. We're not advancing

476
00:31:44,080 --> 00:31:48,240
Speaker 1: America first. We're not advancing America dominance. We're going in

477
00:31:48,280 --> 00:31:50,560
Speaker 1: the opposite direction of where the market is going.

478
00:31:51,280 --> 00:31:56,320
Speaker 2: This is no surprise. He's rescinding environmental justice initiatives. So

479
00:31:56,800 --> 00:31:59,840
Speaker 2: there are nearly eighty Biden administration initiatives.

480
00:32:00,120 --> 00:32:02,120
Speaker 4: What kind of damage does this do?

481
00:32:02,720 --> 00:32:05,200
Speaker 1: This is terrible. This is another part of what we're

482
00:32:05,200 --> 00:32:08,920
Speaker 1: seeing out of this administration is outright cruelty the people.

483
00:32:09,240 --> 00:32:13,240
Speaker 1: There's no question but what black, brown, and low income

484
00:32:13,280 --> 00:32:17,640
Speaker 1: communities across the country have for decades been subject to

485
00:32:17,720 --> 00:32:22,680
Speaker 1: disproportionate health and environmental impacts. That's where all the really

486
00:32:22,960 --> 00:32:28,400
Speaker 1: hazardous facilities are cited, whether it's dumping grounds for toxic

487
00:32:28,480 --> 00:32:33,480
Speaker 1: chemicals and toxic waste, or whether it's oil refineries, whatever

488
00:32:33,520 --> 00:32:37,200
Speaker 1: it is, Cancer Alley in Louisiana, for example. These are

489
00:32:37,200 --> 00:32:41,280
Speaker 1: communities that have suffered from disproportionate environmental impacts for decades,

490
00:32:41,640 --> 00:32:45,920
Speaker 1: and finally we had an administration who took seriously the

491
00:32:46,160 --> 00:32:51,480
Speaker 1: ethical and the moral obligation to stop that and to

492
00:32:51,600 --> 00:32:55,800
Speaker 1: bring attention to bear on places where people are getting

493
00:32:56,040 --> 00:33:01,560
Speaker 1: elevated levels of cancer, dying prematurely, having miscarriages, and all

494
00:33:01,680 --> 00:33:06,400
Speaker 1: kinds of really serious health and well being impacts. And

495
00:33:06,680 --> 00:33:09,800
Speaker 1: the truth is that we have not devoted enough time

496
00:33:09,880 --> 00:33:14,560
Speaker 1: through environmental laws, through permitting and licensing, to avoid burdening

497
00:33:14,600 --> 00:33:20,080
Speaker 1: these communities with ever more life threatening health threatening activities,

498
00:33:20,200 --> 00:33:25,600
Speaker 1: and also creating the enforcement capability to target those areas

499
00:33:25,640 --> 00:33:29,680
Speaker 1: where people are dying and getting sick and bringing enforcement

500
00:33:29,680 --> 00:33:33,240
Speaker 1: actions through EPA and the Department of Justice to clean

501
00:33:33,280 --> 00:33:35,880
Speaker 1: it up and to stop it and to protect people.

502
00:33:36,120 --> 00:33:39,720
Speaker 1: We've also seen last week that Trump has ordered five

503
00:33:40,200 --> 00:33:43,560
Speaker 1: all five of the Section chiefs in the Department of

504
00:33:43,880 --> 00:33:47,440
Speaker 1: Justice that are in charge of the environmental enforcement sections

505
00:33:47,480 --> 00:33:51,360
Speaker 1: of Justice. He's reassigned them to immigration. I don't know

506
00:33:51,440 --> 00:33:53,760
Speaker 1: exactly what they're going to be doing on immigration. They're

507
00:33:53,920 --> 00:33:57,600
Speaker 1: environmental lawyers. They're the lawyers that are leading the effort

508
00:33:57,960 --> 00:34:01,520
Speaker 1: in the United States to keep unity safe, to bring

509
00:34:01,560 --> 00:34:05,960
Speaker 1: polluters to justice, and he's decimating the capability of these

510
00:34:06,000 --> 00:34:09,120
Speaker 1: agencies to do that. That's the real harm that we're seeing.

511
00:34:09,719 --> 00:34:14,600
Speaker 2: His administration has stopped all pending environmental litigation, that includes

512
00:34:14,640 --> 00:34:17,160
Speaker 2: pending settlements and consent decrees.

513
00:34:17,480 --> 00:34:19,160
Speaker 4: But aren't they going to need.

514
00:34:19,080 --> 00:34:22,759
Speaker 2: Environmental lawyers to be fighting all the lawsuits that are

515
00:34:22,800 --> 00:34:25,280
Speaker 2: going to come down because of these executive orders.

516
00:34:25,800 --> 00:34:28,359
Speaker 1: Well, that's the irony of what's going on here. By

517
00:34:28,440 --> 00:34:34,279
Speaker 1: taking out senior career professionals in the federal agencies, it's

518
00:34:34,320 --> 00:34:36,640
Speaker 1: actually going to make what Trump wants to do even

519
00:34:36,680 --> 00:34:40,560
Speaker 1: harder to do. It'll mean that instead of carefully following

520
00:34:40,880 --> 00:34:43,759
Speaker 1: the law, crossing the t's, dotting the eyes and all

521
00:34:43,760 --> 00:34:45,800
Speaker 1: of that, they're going to keep making the kinds of

522
00:34:45,920 --> 00:34:49,759
Speaker 1: mistakes they did in the first round in Trump's first administration.

523
00:34:50,280 --> 00:34:53,600
Speaker 1: In their hurry to do this in the demand or

524
00:34:53,800 --> 00:34:56,480
Speaker 1: you know, to be loyal to the president, not loyal

525
00:34:56,520 --> 00:34:58,440
Speaker 1: to the rule of law. They're going to make all

526
00:34:58,560 --> 00:35:01,960
Speaker 1: kinds of mistakes. But here's the it takes time to

527
00:35:02,080 --> 00:35:04,920
Speaker 1: chase down all these things. That's another strategy here is,

528
00:35:05,440 --> 00:35:08,279
Speaker 1: you know, flood the zone, throw so many things out

529
00:35:08,320 --> 00:35:12,080
Speaker 1: there that people will be dispersed and can't keep up

530
00:35:12,120 --> 00:35:15,080
Speaker 1: with everything he's doing. Can't get all these cases into

531
00:35:15,160 --> 00:35:18,440
Speaker 1: court and get them heard, get them reversed. That's what

532
00:35:18,480 --> 00:35:21,720
Speaker 1: they're counting on, I think is just do so much

533
00:35:22,200 --> 00:35:24,440
Speaker 1: that some stuff is just going to go through because

534
00:35:24,480 --> 00:35:27,359
Speaker 1: there isn't enough opposition on the other side, and there

535
00:35:27,400 --> 00:35:31,560
Speaker 1: isn't enough time to get them all turned around or overturned. Right,

536
00:35:31,920 --> 00:35:35,560
Speaker 1: So eventually I think you're going to see that happening.

537
00:35:35,800 --> 00:35:38,680
Speaker 1: It'll be later in the four years. But you know,

538
00:35:39,320 --> 00:35:42,240
Speaker 1: apparently the strategy is stop us if you can.

539
00:35:42,800 --> 00:35:46,600
Speaker 2: So he rescinds Biden rules. Do most of the things

540
00:35:46,640 --> 00:35:50,920
Speaker 2: he wants to do require federal rule making.

541
00:35:52,080 --> 00:35:54,759
Speaker 1: Yeah, the big things, do you know, the tail Fife rule,

542
00:35:54,880 --> 00:35:58,960
Speaker 1: the power plant rule, the methane rule, a lot of

543
00:35:59,000 --> 00:36:01,120
Speaker 1: the rules under the Clean Air Act and Clean Water

544
00:36:01,200 --> 00:36:04,960
Speaker 1: Act that Biden adopted, and Endangered Species Act and the

545
00:36:05,040 --> 00:36:08,440
Speaker 1: National Environmental Policy Act. All of those rules that are

546
00:36:08,440 --> 00:36:10,080
Speaker 1: on the books are going to have to go through

547
00:36:10,120 --> 00:36:13,600
Speaker 1: notice and comment rule making under the Administrative Procedure Act,

548
00:36:13,920 --> 00:36:16,319
Speaker 1: and they're all going to be subject to challenge in

549
00:36:16,480 --> 00:36:20,400
Speaker 1: various courts, sometimes district courts, sometimes courts of appeal. So

550
00:36:20,760 --> 00:36:23,439
Speaker 1: that's the process that we're now in, and as I say,

551
00:36:23,719 --> 00:36:26,800
Speaker 1: it's going to take years, and he'll be gone actually

552
00:36:26,800 --> 00:36:29,279
Speaker 1: before a lot of these cases are resolved. And who

553
00:36:29,280 --> 00:36:32,280
Speaker 1: knows what's going to happen after he's out of office

554
00:36:32,280 --> 00:36:34,719
Speaker 1: and who comes in next. That's another big question mark.

555
00:36:34,960 --> 00:36:39,200
Speaker 2: So in an executive order entitled Putting America First in

556
00:36:39,200 --> 00:36:44,000
Speaker 2: International Environmental Agreements, he withdrew from the Paris Accord for

557
00:36:44,080 --> 00:36:44,840
Speaker 2: the second time.

558
00:36:45,080 --> 00:36:46,640
Speaker 4: What's the impact of that.

559
00:36:47,680 --> 00:36:52,359
Speaker 1: Well, the impact is to certainly slow down the rate

560
00:36:52,400 --> 00:36:57,280
Speaker 1: at which countries that are signatory to the Climate Treaty

561
00:36:58,120 --> 00:37:02,080
Speaker 1: are upping their commitment. You know, Biden made a very

562
00:37:02,120 --> 00:37:04,920
Speaker 1: strong commitment to cut our missions in half. That's not

563
00:37:04,960 --> 00:37:07,800
Speaker 1: going to happen now. Of course, by twenty thirty. I

564
00:37:07,840 --> 00:37:13,160
Speaker 1: wouldn't overstate this because several countries, in response to what

565
00:37:13,200 --> 00:37:16,799
Speaker 1: Trump has announced, including China, have said, you know what,

566
00:37:17,080 --> 00:37:22,200
Speaker 1: we are going to stick with the international process under

567
00:37:22,239 --> 00:37:25,360
Speaker 1: the Paris Treaty of Paris Agreement. In fact, China is

568
00:37:25,360 --> 00:37:27,560
Speaker 1: saying we're going to up our game, and we see

569
00:37:27,760 --> 00:37:30,600
Speaker 1: the as said this before, we see the economic advantage

570
00:37:30,880 --> 00:37:34,560
Speaker 1: of building more clean energy and providing more of the

571
00:37:34,680 --> 00:37:38,160
Speaker 1: rare earth materials that are required for electric vehicles and

572
00:37:38,200 --> 00:37:39,640
Speaker 1: other green energy.

573
00:37:39,719 --> 00:37:39,879
Speaker 2: Right.

574
00:37:40,200 --> 00:37:42,640
Speaker 1: So it's going to be a mix. I mean, it's

575
00:37:42,680 --> 00:37:45,200
Speaker 1: not a good thing, but I don't think it's going

576
00:37:45,239 --> 00:37:46,920
Speaker 1: to mean that all progress is going to come to

577
00:37:46,960 --> 00:37:49,640
Speaker 1: a screeching halt by any means. The other thing is,

578
00:37:49,920 --> 00:37:52,480
Speaker 1: once again, as we saw before, we're going to see

579
00:37:52,560 --> 00:37:55,680
Speaker 1: states and cities and counties stepping up and doing the

580
00:37:55,719 --> 00:37:59,120
Speaker 1: best they can anyway to fill some of the gaps. California,

581
00:37:59,320 --> 00:38:03,200
Speaker 1: the fifth large economy in the world, has already announced

582
00:38:03,200 --> 00:38:05,560
Speaker 1: that it's going to make up for the fact that

583
00:38:05,600 --> 00:38:08,239
Speaker 1: the Trump administration is going to not be building as

584
00:38:08,320 --> 00:38:11,560
Speaker 1: much charging stations to support electric vehicles. They are going

585
00:38:11,600 --> 00:38:15,120
Speaker 1: to be putting very significant money into that. They may

586
00:38:15,200 --> 00:38:18,680
Speaker 1: expand their cap and trade program. Other states are looking

587
00:38:18,920 --> 00:38:22,360
Speaker 1: to join that program. The state of Washington has adopted

588
00:38:22,560 --> 00:38:26,160
Speaker 1: a carbon tax, which has been renewed by a popular

589
00:38:26,200 --> 00:38:30,520
Speaker 1: referendum in Washington state, so Vermont, my little Vermont, has

590
00:38:30,560 --> 00:38:32,960
Speaker 1: adopted a climate super fun law to go after the

591
00:38:33,000 --> 00:38:36,120
Speaker 1: oil companies to get money for adaptation. We're going to

592
00:38:36,120 --> 00:38:39,680
Speaker 1: see those kinds of efforts picking up, at least over

593
00:38:39,719 --> 00:38:42,160
Speaker 1: the period of time that Trump's in office. This time.

594
00:38:42,600 --> 00:38:45,200
Speaker 1: It won't make up for all of the losses of

595
00:38:45,280 --> 00:38:48,560
Speaker 1: momentum and opportunity that Trump is going to cost us.

596
00:38:48,600 --> 00:38:51,120
Speaker 1: It won't make up for that, but it'll upset some

597
00:38:51,239 --> 00:38:54,040
Speaker 1: of it, and it'll at least keep us fighting for

598
00:38:54,440 --> 00:38:57,080
Speaker 1: trying to get to the point where we really are

599
00:38:57,120 --> 00:39:00,480
Speaker 1: seriously reducing the emissions that are causing the kinds of

600
00:39:00,520 --> 00:39:03,640
Speaker 1: health scapes that we're seeing in La County.

601
00:39:03,719 --> 00:39:06,840
Speaker 2: Right now, I'm waiting for the first lawsuits to be

602
00:39:06,920 --> 00:39:09,000
Speaker 2: filed over these environmental orders.

603
00:39:09,560 --> 00:39:11,480
Speaker 4: We shall see. Thanks so much. Pat.

604
00:39:12,000 --> 00:39:15,680
Speaker 2: That's Professor Pat Parento of the Vermont Law and Graduate School.

605
00:39:16,440 --> 00:39:18,800
Speaker 2: And that's it for this edition of The Bloomberg Law Show.

606
00:39:19,120 --> 00:39:21,480
Speaker 2: Remember you can always get the latest legal news on

607
00:39:21,520 --> 00:39:25,799
Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

608
00:39:26,000 --> 00:39:31,040
Speaker 2: and at www dot Bloomberg dot com, Slash podcast Slash Law,

609
00:39:31,440 --> 00:39:34,000
Speaker 2: and remember to tune into The Bloomberg Law Show every

610
00:39:34,080 --> 00:39:35,799
Speaker 2: weeknight at ten pm.

611
00:39:35,560 --> 00:39:36,439
Speaker 4: Wall Street Time.

612
00:39:37,000 --> 00:39:39,719
Speaker 2: I'm June Grosso and you're listening to Bloomberg