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

2
00:00:08,840 --> 00:00:13,960
Speaker 2: The Supreme Court struck down President Donald Trump sweeping global tariffs,

3
00:00:14,160 --> 00:00:18,040
Speaker 2: under cutting his signature economic policy. In a six to

4
00:00:18,040 --> 00:00:22,919
Speaker 2: three vote that crossed ideological lines. The justices handed Trump

5
00:00:23,040 --> 00:00:27,160
Speaker 2: his most significant legal defeat since returning to the White House.

6
00:00:27,680 --> 00:00:32,160
Speaker 2: The majority, including two Trump appointees, found that the President

7
00:00:32,360 --> 00:00:36,800
Speaker 2: exceeded his authority by invoking a federal emergency powers law

8
00:00:37,159 --> 00:00:40,879
Speaker 2: to impose his global tariffs. Trump lashed out at the

9
00:00:40,920 --> 00:00:44,479
Speaker 2: decision and the justices who ruled against him.

10
00:00:44,760 --> 00:00:52,159
Speaker 3: The Supreme Court's ruling on tariffs is deeply disappointing, and

11
00:00:52,240 --> 00:00:56,480
Speaker 3: I'm ashamed of certain members of the Court, absolutely ashamed

12
00:00:57,120 --> 00:00:59,400
Speaker 3: for not having the courage to do what's right for

13
00:00:59,680 --> 00:01:05,200
Speaker 3: our country. I'd like to thank and congratulate Justices Thomas, Alito,

14
00:01:05,280 --> 00:01:10,520
Speaker 3: and Kavanaugh for their strength and wisdom and love of

15
00:01:10,560 --> 00:01:11,240
Speaker 3: our country.

16
00:01:11,600 --> 00:01:16,200
Speaker 2: Of course, the three justices congratulated by Trump dissented from

17
00:01:16,200 --> 00:01:20,480
Speaker 2: the opinion. Joining me is international trade attorney Dave Townsend,

18
00:01:20,600 --> 00:01:22,280
Speaker 2: a partner at Dorsey and Whitney.

19
00:01:22,720 --> 00:01:22,959
Speaker 1: Dave.

20
00:01:23,160 --> 00:01:26,760
Speaker 2: Chief Justice John Roberts wrote the majority opinion, and it

21
00:01:26,840 --> 00:01:32,320
Speaker 2: was basically a textual analysis finding that the text of IIPA,

22
00:01:32,840 --> 00:01:38,200
Speaker 2: the International Emergency Economic Powers Act, didn't authorize the president

23
00:01:38,280 --> 00:01:42,280
Speaker 2: to impose tariffs. He wrote, when Congress grants the power

24
00:01:42,280 --> 00:01:47,160
Speaker 2: to impose tariffs, it does so clearly and with careful constraints.

25
00:01:47,880 --> 00:01:52,920
Speaker 4: The Constitution gives Congress the authority to impose taxes and

26
00:01:52,960 --> 00:01:56,960
Speaker 4: also to regulate commerce with foreign nations, and that constitutional

27
00:01:57,000 --> 00:02:00,880
Speaker 4: context I think was important. Basically all of the opinions

28
00:02:01,160 --> 00:02:04,880
Speaker 4: creating a posture that we would expect Congress to speak

29
00:02:04,920 --> 00:02:09,200
Speaker 4: clearly if they intended to give that power away via AEPA.

30
00:02:09,440 --> 00:02:14,000
Speaker 4: And the part that you read June relates to, you know,

31
00:02:14,080 --> 00:02:21,000
Speaker 4: primarily a statutory interpretive question of would Congress have meant

32
00:02:21,120 --> 00:02:25,160
Speaker 4: AEPA to give terrorf authority to the executive branch? And

33
00:02:25,360 --> 00:02:28,359
Speaker 4: Court answered no, that was not intended by Congress.

34
00:02:28,760 --> 00:02:31,200
Speaker 2: The Chief Justice came up with what's been called the

35
00:02:31,280 --> 00:02:36,440
Speaker 2: Major Questions doctrine about four years ago. It basically says

36
00:02:36,560 --> 00:02:41,600
Speaker 2: that Congress has to explicitly authorize policies that have a

37
00:02:41,639 --> 00:02:46,840
Speaker 2: major nationwide impact. How did that doctrine play in this decision?

38
00:02:47,520 --> 00:02:51,000
Speaker 4: Roberts uses the Major Questions Doctrine in part to resolve

39
00:02:51,080 --> 00:02:55,520
Speaker 4: the statutory question before the Court, holding AIPA doesn't authorize tariffs.

40
00:02:55,919 --> 00:02:59,680
Speaker 4: There is a lengthy concurring opinion by Justice Gorsich in

41
00:02:59,720 --> 00:03:03,080
Speaker 4: which he goes into depth of the Major Questions doctrine,

42
00:03:03,560 --> 00:03:08,360
Speaker 4: and then also opinions from Justice Barrett talking about some

43
00:03:08,480 --> 00:03:11,480
Speaker 4: of her differences with how Justice Gorsich applies the Major

44
00:03:11,560 --> 00:03:15,880
Speaker 4: Questions doctrine. And then the so called liberal justices who say,

45
00:03:15,919 --> 00:03:19,200
Speaker 4: we think traditional statutory interpretation questions, aside from the Major

46
00:03:19,280 --> 00:03:22,200
Speaker 4: Questions doctrine allows us to resolve the case. But all

47
00:03:22,320 --> 00:03:25,120
Speaker 4: the justices discuss that issue. You know, what is the

48
00:03:25,120 --> 00:03:28,280
Speaker 4: Major Questions doctrine? When is it appropriate to apply and

49
00:03:28,280 --> 00:03:29,760
Speaker 4: does it apply to the case here?

50
00:03:30,200 --> 00:03:34,760
Speaker 2: How important is it that two Trump appointees, Justices Amy

51
00:03:34,800 --> 00:03:38,960
Speaker 2: Cony Barrett and Neil Gorsich, and particularly Justice Gorsich, who's

52
00:03:39,040 --> 00:03:42,680
Speaker 2: among the most conservative members of the Court and is

53
00:03:42,840 --> 00:03:47,400
Speaker 2: usually a reliable vote for Trump, How important is it

54
00:03:47,480 --> 00:03:49,600
Speaker 2: that they sided with the majority here.

55
00:03:50,360 --> 00:03:54,200
Speaker 4: Justice Roberts has long spoken about the legitimacy of the Court.

56
00:03:54,480 --> 00:03:56,720
Speaker 4: You know, I would answer that question June just by saying,

57
00:03:56,800 --> 00:03:59,680
Speaker 4: I think Roberts is very pleased to have justices who

58
00:03:59,680 --> 00:04:03,720
Speaker 4: are and buy President Trump join him in this landmark opinion.

59
00:04:04,480 --> 00:04:09,760
Speaker 2: Where did the conservatives who dissented find authority for the

60
00:04:09,800 --> 00:04:11,800
Speaker 2: president to issue tariffs?

61
00:04:12,680 --> 00:04:17,520
Speaker 4: So the Descent would have said that the AEPA text

62
00:04:17,560 --> 00:04:21,600
Speaker 4: itself is intended to encompass the authority to issue tariffs

63
00:04:21,600 --> 00:04:26,679
Speaker 4: and thus upheld President Trump's emergency tariffs. And the language

64
00:04:26,680 --> 00:04:30,840
Speaker 4: of AEPA is broad. It uses a lot of authorizing

65
00:04:30,920 --> 00:04:34,760
Speaker 4: language for the executive to take various actions, including to

66
00:04:34,800 --> 00:04:37,760
Speaker 4: regulate importation, which is the key phrase that was really

67
00:04:37,800 --> 00:04:40,720
Speaker 4: at issue here. And you know, I think some of

68
00:04:40,760 --> 00:04:43,760
Speaker 4: what the Descent is saying, at least in part, is

69
00:04:43,839 --> 00:04:49,080
Speaker 4: reasoning that, well, the President has blocked imports prohibited commerce

70
00:04:49,640 --> 00:04:54,440
Speaker 4: under US economic sanctions for decades, citing AEPA, And if

71
00:04:54,480 --> 00:04:57,839
Speaker 4: that authority allows blocking and prohibiting, why wouldn't the language

72
00:04:57,839 --> 00:05:00,839
Speaker 4: to regulate importation permit a more calibri in response, which

73
00:05:00,880 --> 00:05:03,760
Speaker 4: is tariffs, as President Trump chose to use here.

74
00:05:04,279 --> 00:05:10,080
Speaker 2: President Trump, who was extremely disappointed by the decision, has

75
00:05:10,120 --> 00:05:12,520
Speaker 2: already announced workarounds for the tariffs.

76
00:05:13,400 --> 00:05:15,680
Speaker 3: They I will sign in order to impose a ten

77
00:05:15,720 --> 00:05:19,680
Speaker 3: percent global tariff under Section one twenty two over and

78
00:05:19,720 --> 00:05:23,000
Speaker 3: above are normal tariffs already being charged.

79
00:05:23,480 --> 00:05:26,599
Speaker 2: So then will this decision not really make that much

80
00:05:26,720 --> 00:05:31,320
Speaker 2: difference to the administration and its trade policy.

81
00:05:31,360 --> 00:05:34,920
Speaker 4: I think as a matter of trade policy, that's probably right.

82
00:05:35,400 --> 00:05:39,279
Speaker 4: I think that they will and have prepared for this

83
00:05:39,400 --> 00:05:43,200
Speaker 4: long enough that they see an avenue for them to

84
00:05:43,360 --> 00:05:46,760
Speaker 4: impose tariffs in a way that doesn't really fundamentally change

85
00:05:47,080 --> 00:05:50,160
Speaker 4: the map, so to speak, with respect to US trade policy.

86
00:05:51,000 --> 00:05:54,320
Speaker 2: Why do you think the Court didn't address the extent

87
00:05:54,440 --> 00:05:59,359
Speaker 2: to which importers are entitled to refunds of the tariffs.

88
00:06:00,160 --> 00:06:03,919
Speaker 4: That's a tough question and one hundred and seventy page opinion.

89
00:06:04,720 --> 00:06:09,760
Speaker 4: The dissent points out that the majority says nothing about refunds,

90
00:06:10,400 --> 00:06:13,800
Speaker 4: and you know, if you go through the opinion, it's

91
00:06:13,880 --> 00:06:17,000
Speaker 4: all about the statutory interpretation the merits question, not the

92
00:06:17,040 --> 00:06:20,440
Speaker 4: remedy question. At the US Court of Appeals for the

93
00:06:20,480 --> 00:06:24,120
Speaker 4: Federal Circuit, it had remanded this case back to the

94
00:06:24,120 --> 00:06:26,919
Speaker 4: Court of International Trade, which is at the district court level,

95
00:06:26,960 --> 00:06:31,120
Speaker 4: for this particular case, to examine whether a nationwide remedy

96
00:06:31,200 --> 00:06:35,440
Speaker 4: was appropriate, and it said that intervening authority of the

97
00:06:35,480 --> 00:06:38,840
Speaker 4: Supreme Court required the Court of International Trade to look

98
00:06:38,880 --> 00:06:43,240
Speaker 4: at that issue. Anew that intervening authority is Trump Vicasa,

99
00:06:43,720 --> 00:06:47,719
Speaker 4: which discussed the appropriateness of a federal judge issuing a

100
00:06:47,800 --> 00:06:51,920
Speaker 4: nationwide remedy. So I think the effect of the opinion

101
00:06:52,200 --> 00:06:54,920
Speaker 4: is they affirmed the Federal Circuit opinion. The Federal Circuit

102
00:06:54,960 --> 00:06:57,000
Speaker 4: opinion had told the Court of International Trade to look

103
00:06:57,000 --> 00:06:59,040
Speaker 4: at that issue, and that's where we go now with

104
00:06:59,120 --> 00:07:00,320
Speaker 4: respect to refunds.

105
00:07:00,680 --> 00:07:03,440
Speaker 2: And so to be litigated at the Court of International Trade.

106
00:07:04,000 --> 00:07:07,960
Speaker 2: Would refunding be as messy as Justice Kavanaugh says.

107
00:07:08,960 --> 00:07:13,120
Speaker 4: The messy language comes from what Justice Barrett said during

108
00:07:13,280 --> 00:07:17,640
Speaker 4: oral argument, and Justice Barrett here sides with the majority

109
00:07:17,720 --> 00:07:22,280
Speaker 4: to strike down the tariffs, and so Justice Kevnaugh is saying, well,

110
00:07:22,320 --> 00:07:24,120
Speaker 4: you know, how do we proceed here? It's going to

111
00:07:24,120 --> 00:07:26,880
Speaker 4: be a mess I mean, I think that it's really

112
00:07:27,000 --> 00:07:30,560
Speaker 4: unclear what happens next on the refund issue. From my

113
00:07:30,720 --> 00:07:35,120
Speaker 4: perspective as a trade attorney, I advise importers about tariffs

114
00:07:35,440 --> 00:07:38,080
Speaker 4: all the time, and it's largely automated in the sense

115
00:07:38,160 --> 00:07:41,000
Speaker 4: that it's possible for US Customs to look at each

116
00:07:41,120 --> 00:07:44,600
Speaker 4: individual import on an entry by entry basis and see

117
00:07:44,640 --> 00:07:48,360
Speaker 4: how much innipa tariffs have been paid. So I'm not

118
00:07:48,400 --> 00:07:51,240
Speaker 4: convinced it needs to be messy. But it depends on

119
00:07:51,280 --> 00:07:52,840
Speaker 4: a lot of things. Now, it depends on how the

120
00:07:52,840 --> 00:07:55,440
Speaker 4: administration reacts, depends on how the Court of International Trade

121
00:07:55,960 --> 00:07:58,400
Speaker 4: reviews that issue in the first instance, and then potential

122
00:07:58,400 --> 00:07:59,240
Speaker 4: appeals from there.

123
00:08:00,040 --> 00:08:03,160
Speaker 2: I want to talk about the significance of this decision

124
00:08:03,960 --> 00:08:08,000
Speaker 2: outside of tariffs. Do you think we can read more

125
00:08:08,240 --> 00:08:12,040
Speaker 2: into this decision? For example, is this the start of

126
00:08:12,160 --> 00:08:17,040
Speaker 2: the Supreme Court restraining Trump and his agenda? Could these

127
00:08:17,080 --> 00:08:21,840
Speaker 2: principles be used in other circumstances or are they limited

128
00:08:22,360 --> 00:08:24,480
Speaker 2: to this specific statute.

129
00:08:24,960 --> 00:08:29,000
Speaker 4: It's significant and broad in the sense that these IPA

130
00:08:29,040 --> 00:08:32,120
Speaker 4: tariffs have been imposed under a variety of executive orders

131
00:08:32,160 --> 00:08:35,240
Speaker 4: for a variety of purposes. You had the global reciprocal tariffs,

132
00:08:35,240 --> 00:08:38,880
Speaker 4: you had the Fentnyl related tariffs, you had the RAN

133
00:08:39,040 --> 00:08:42,319
Speaker 4: related tariffs imposed with respect to imports from India, and

134
00:08:43,120 --> 00:08:46,120
Speaker 4: presumably this opinion says all those terrorists are illegals. So

135
00:08:46,120 --> 00:08:49,360
Speaker 4: it's very broad. It is landmark. It's an enormous decision

136
00:08:49,440 --> 00:08:52,240
Speaker 4: covering you know, importers who paid between one hundred and

137
00:08:52,280 --> 00:08:55,680
Speaker 4: thirty and one hundred and fifty billion dollars. Now what

138
00:08:55,840 --> 00:08:58,720
Speaker 4: it says outside the scope of IEPA. I'm not sure

139
00:08:59,120 --> 00:09:01,679
Speaker 4: that would get very speculative, and it would be difficult

140
00:09:01,760 --> 00:09:04,160
Speaker 4: given what the Supreme Court said that it's ultimately a

141
00:09:04,200 --> 00:09:07,840
Speaker 4: statutory interpretive question that they resolved here to really say

142
00:09:08,120 --> 00:09:11,160
Speaker 4: that this says anything about the validity of tariffs outside

143
00:09:11,160 --> 00:09:11,800
Speaker 4: of a EPA.

144
00:09:12,160 --> 00:09:14,719
Speaker 2: And Dave, as a trade lawyer, what are you going

145
00:09:14,760 --> 00:09:16,720
Speaker 2: to be looking for after this decision?

146
00:09:17,240 --> 00:09:20,439
Speaker 4: You know, I think that one issue will be interesting

147
00:09:21,000 --> 00:09:26,800
Speaker 4: to watch now is the reaction not just from importers

148
00:09:27,360 --> 00:09:31,240
Speaker 4: and not just from the Administration, but also international trading partners.

149
00:09:31,280 --> 00:09:33,920
Speaker 4: We have all these trade agreements that are based on

150
00:09:34,360 --> 00:09:38,240
Speaker 4: and you know, the underlying assumption is that AIPA tariffs

151
00:09:38,240 --> 00:09:40,800
Speaker 4: apply and that a new agreement has reached between the

152
00:09:40,800 --> 00:09:44,160
Speaker 4: White House, the USTR and these foreign countries. You know,

153
00:09:44,240 --> 00:09:47,680
Speaker 4: now that the IPA tariffs have been held unlawful, it'll

154
00:09:47,720 --> 00:09:49,680
Speaker 4: be interesting to see what happens next. There might not

155
00:09:49,760 --> 00:09:52,240
Speaker 4: be a significant change, and I think the administration will

156
00:09:52,240 --> 00:09:55,079
Speaker 4: say nothing has changed with respect to those agreements, and

157
00:09:55,120 --> 00:09:58,520
Speaker 4: it'll be interesting to see if foreign countries continue basically

158
00:09:58,559 --> 00:10:01,680
Speaker 4: to say, yeah, we continue to view those agreements as valid.

159
00:10:02,040 --> 00:10:05,040
Speaker 4: Nothing's changed. We're going to keep going as though those

160
00:10:05,080 --> 00:10:07,920
Speaker 4: agreements are the bargain under which the US and those

161
00:10:07,960 --> 00:10:09,760
Speaker 4: trading partners will will do business.

162
00:10:10,200 --> 00:10:13,200
Speaker 2: And on the Supreme Court side of things, it'll be

163
00:10:13,240 --> 00:10:17,200
Speaker 2: interesting to see which of the justices show up for

164
00:10:17,480 --> 00:10:21,800
Speaker 2: President Trump's State of the Union address on Tuesday, considering

165
00:10:21,840 --> 00:10:26,320
Speaker 2: that he called the justices in the majority unpatriotic and

166
00:10:26,400 --> 00:10:30,840
Speaker 2: disloyal to the Constitution. Thanks for your insights, Dave. That's

167
00:10:30,920 --> 00:10:34,440
Speaker 2: Dave Townsend, a partner at Dorsey and Whitney. Coming up

168
00:10:34,480 --> 00:10:38,720
Speaker 2: next on the Bloomberg Law Show. A coalition of conservation

169
00:10:38,920 --> 00:10:44,120
Speaker 2: and historical organizations are suing the Trump administration over its

170
00:10:44,200 --> 00:10:47,920
Speaker 2: efforts to erase history and science at our national parks.

171
00:10:49,600 --> 00:10:53,320
Speaker 4: You cannot erase our history. Yes it is flawed, Yes

172
00:10:53,360 --> 00:10:54,360
Speaker 4: it is imperfect.

173
00:10:54,520 --> 00:10:59,480
Speaker 2: Philadelphia's mayor praised a federal judge ordering the Trump administration

174
00:10:59,800 --> 00:11:03,720
Speaker 2: to restored displays discussing slavery at a site in the

175
00:11:03,760 --> 00:11:08,440
Speaker 2: city where George Washington lived as president. Last month, National

176
00:11:08,480 --> 00:11:12,360
Speaker 2: Park Service workers used hand tools to pry off thirty

177
00:11:12,360 --> 00:11:17,120
Speaker 2: four panels about nine people enslave by Washington. It's part

178
00:11:17,120 --> 00:11:21,840
Speaker 2: of the Trump administration's removal of information related to racism

179
00:11:21,920 --> 00:11:28,160
Speaker 2: and slavery, sexism and LGBTQ rights, Indigenous communities, and climate

180
00:11:28,280 --> 00:11:33,080
Speaker 2: change from the nation's museums, parks, and landmarks. The National

181
00:11:33,120 --> 00:11:38,000
Speaker 2: Parks Conservation Association and five other nonprofits are suing the

182
00:11:38,040 --> 00:11:42,640
Speaker 2: administration to stop what they call a sustained campaign to

183
00:11:42,720 --> 00:11:47,560
Speaker 2: erase history and undermine science from national sites. Joining me

184
00:11:47,679 --> 00:11:51,520
Speaker 2: is Alan Spears, Senior director of Cultural Resources for the

185
00:11:51,600 --> 00:11:55,640
Speaker 2: National Parks Conservation Association, Alan, will you give us the

186
00:11:55,679 --> 00:11:59,760
Speaker 2: timeline of the Trump administration's effort to remove in from

187
00:11:59,760 --> 00:12:01,800
Speaker 2: anisation from the National parks?

188
00:12:02,480 --> 00:12:05,880
Speaker 5: So when this process got started shortly after President Trump

189
00:12:06,040 --> 00:12:09,040
Speaker 5: was re elected and re entered the White House, and

190
00:12:09,280 --> 00:12:12,959
Speaker 5: in March of twenty twenty five, he issued an executive

191
00:12:13,080 --> 00:12:16,959
Speaker 5: Order to Restore Truth and Sanity to American History, and

192
00:12:17,000 --> 00:12:19,760
Speaker 5: that was followed two months later by a secretarial order

193
00:12:19,880 --> 00:12:23,160
Speaker 5: issued by Secretary Doug Bergham, Secretary of the Interior, that

194
00:12:23,440 --> 00:12:27,280
Speaker 5: essentially operationalized the President's executive order for all of the

195
00:12:27,320 --> 00:12:30,920
Speaker 5: agencies in the Interior Department, including the National Park Service,

196
00:12:31,280 --> 00:12:34,600
Speaker 5: and so had QR codes placed in national parks so

197
00:12:34,640 --> 00:12:38,480
Speaker 5: that visitors could tattle on National Park Service employees if

198
00:12:38,480 --> 00:12:40,439
Speaker 5: they found that the interpretation of the site was a

199
00:12:40,440 --> 00:12:43,520
Speaker 5: little bit too left leaning or in their view, denigrated Americans,

200
00:12:43,720 --> 00:12:46,840
Speaker 5: and that was followed by an order for National Park

201
00:12:46,920 --> 00:12:51,520
Speaker 5: Service staff to assess everything in their interpretive inventories, whether

202
00:12:51,520 --> 00:12:54,199
Speaker 5: it was related to race or gender, or climate science,

203
00:12:54,440 --> 00:12:57,480
Speaker 5: anything that might run a foul of the secretarial Order

204
00:12:57,559 --> 00:13:00,640
Speaker 5: or the President's executive order. They were to put that

205
00:13:00,679 --> 00:13:03,000
Speaker 5: on a list and submit that list of the Interior Department,

206
00:13:03,080 --> 00:13:05,480
Speaker 5: and those lists were filled out and then submitted over

207
00:13:05,520 --> 00:13:07,000
Speaker 5: the course of the end of the summer of twenty

208
00:13:07,040 --> 00:13:11,040
Speaker 5: twenty five, and then in the fall of twenty twenty

209
00:13:11,080 --> 00:13:14,320
Speaker 5: five we kind of went into a hiatus where we

210
00:13:14,360 --> 00:13:17,600
Speaker 5: heard some things were being removed, other things weren't being touched,

211
00:13:17,880 --> 00:13:20,559
Speaker 5: people were considering what was on the list. And then

212
00:13:20,640 --> 00:13:23,439
Speaker 5: we got started with a bang in January when we

213
00:13:23,480 --> 00:13:26,760
Speaker 5: saw the National Park Service take down the displays at

214
00:13:26,760 --> 00:13:31,120
Speaker 5: the President's House at Independence National Historical Park in Philadelphia.

215
00:13:31,160 --> 00:13:33,960
Speaker 5: And we have also seen other signs that were taken down,

216
00:13:34,080 --> 00:13:37,280
Speaker 5: a sign on sea level rise at Fort Sumter, signs

217
00:13:37,280 --> 00:13:39,840
Speaker 5: about climate change at Acadian National Park, a couple of

218
00:13:39,920 --> 00:13:44,200
Speaker 5: films videos at Lowell National Historical Park in Massachusetts that

219
00:13:44,280 --> 00:13:47,480
Speaker 5: talked about the pollution of the industrial era and the

220
00:13:48,120 --> 00:13:51,000
Speaker 5: challenging work environment for some of those young women who

221
00:13:51,000 --> 00:13:53,800
Speaker 5: were working in the mills and Lowell during the Industrial

222
00:13:53,800 --> 00:13:56,880
Speaker 5: Revolution in this country. And we've seen signs about Native

223
00:13:56,960 --> 00:13:59,480
Speaker 5: history and culture that have been removed from the Grand Canyon.

224
00:14:00,040 --> 00:14:02,800
Speaker 5: We're hearing stories anecdotal evidence of the fact that there

225
00:14:02,840 --> 00:14:05,920
Speaker 5: is a large list of sites out there, many of

226
00:14:05,960 --> 00:14:09,199
Speaker 5: whom have commemorative or interpretive materials that are related to

227
00:14:09,240 --> 00:14:12,760
Speaker 5: the African American experience, either slavery or civil rights, that

228
00:14:12,840 --> 00:14:16,080
Speaker 5: are on somebody's list. And we may yet see additional

229
00:14:16,200 --> 00:14:19,320
Speaker 5: operations coming from the Trump administration, from the Secretary of

230
00:14:19,360 --> 00:14:23,120
Speaker 5: the Interior, from the National Park Service to remove or erase,

231
00:14:23,240 --> 00:14:27,160
Speaker 5: or censor or sanitize elements of our shared national narrative

232
00:14:27,280 --> 00:14:29,680
Speaker 5: as it is interpreted by our National Park Service.

233
00:14:29,880 --> 00:14:35,720
Speaker 2: Is it any reference to slavery, LGBDQ rights, climate change, etc.

234
00:14:36,440 --> 00:14:39,120
Speaker 2: How are they deciding what's objectionable?

235
00:14:39,560 --> 00:14:42,600
Speaker 5: Oh, that's a great question. There is no transparency in

236
00:14:42,640 --> 00:14:47,400
Speaker 5: this process. And so, as an advocacy organization, the National

237
00:14:47,400 --> 00:14:50,440
Speaker 5: Parks Conservation Association is engaged in the game of whack

238
00:14:50,440 --> 00:14:53,880
Speaker 5: a mole where we've got something happening at the Independence

239
00:14:53,960 --> 00:14:56,880
Speaker 5: Park in one week, and then something happening at the

240
00:14:56,960 --> 00:14:59,840
Speaker 5: medgrin Early Evers Home potentially the next week, and so

241
00:15:00,440 --> 00:15:02,440
Speaker 5: so there is no transparency. There doesn't seem to be

242
00:15:02,480 --> 00:15:05,760
Speaker 5: any process. And sometimes we've got directives coming down from

243
00:15:05,800 --> 00:15:09,440
Speaker 5: above get rid of this, or we've got people in

244
00:15:09,600 --> 00:15:11,880
Speaker 5: National Parks who themselves are trying not to get in

245
00:15:11,920 --> 00:15:14,880
Speaker 5: any kind of trouble, thinking, all right, maybe we ought

246
00:15:14,920 --> 00:15:17,000
Speaker 5: to take that down, or that program that we were

247
00:15:17,000 --> 00:15:19,720
Speaker 5: going to have on enslaved people in the underground railroad.

248
00:15:19,800 --> 00:15:22,840
Speaker 5: Maybe let's postpone that. But the challenge right now is

249
00:15:22,840 --> 00:15:24,880
Speaker 5: we don't have a clear sense of exactly what's happening,

250
00:15:24,880 --> 00:15:27,160
Speaker 5: so it makes it really difficult to react to that.

251
00:15:27,600 --> 00:15:30,560
Speaker 5: What I can tell you is we know now that

252
00:15:30,600 --> 00:15:34,040
Speaker 5: the word transgender has been scrub from National Park Service interpretation,

253
00:15:34,240 --> 00:15:36,840
Speaker 5: and we know that it's been scrubbed from the interpretive

254
00:15:36,920 --> 00:15:39,760
Speaker 5: arrays at the Stonewall Inn in Lower Manhattan that was

255
00:15:39,800 --> 00:15:42,480
Speaker 5: the site of the LGBTQ Uprising in the summer of

256
00:15:42,520 --> 00:15:46,120
Speaker 5: nineteen sixty nine that launched the modern LGBTQ civil rights

257
00:15:46,160 --> 00:15:49,840
Speaker 5: and human rights era, and that protest, that uprising was

258
00:15:49,920 --> 00:15:53,360
Speaker 5: led by transgender activists, and so they have been excised

259
00:15:53,360 --> 00:15:55,560
Speaker 5: from the history of an event that they started and

260
00:15:55,600 --> 00:15:58,080
Speaker 5: helped to organize and lead. And we are seeing also

261
00:15:58,240 --> 00:16:01,680
Speaker 5: at the President's House and other places. It seems as

262
00:16:01,800 --> 00:16:05,240
Speaker 5: if there are some folks in the administration who believe

263
00:16:05,280 --> 00:16:08,240
Speaker 5: that restoring truth and sanity actually means getting rid of

264
00:16:08,240 --> 00:16:11,320
Speaker 5: any references to anything related to race or gender, or

265
00:16:11,320 --> 00:16:15,280
Speaker 5: sexual orientation, labor class, women's rights, or climate science. That

266
00:16:15,400 --> 00:16:18,160
Speaker 5: makes some people feel uncomfortable. So the idea is, you

267
00:16:18,240 --> 00:16:21,000
Speaker 5: take those things out of the interpretive array, and you

268
00:16:21,040 --> 00:16:23,120
Speaker 5: can go and have a fine time at any national

269
00:16:23,160 --> 00:16:25,000
Speaker 5: park that you want to visit, and you will never

270
00:16:25,040 --> 00:16:27,640
Speaker 5: have to learn anything or think critically about any issue,

271
00:16:27,680 --> 00:16:29,880
Speaker 5: because we are just going to look at the unfiltered,

272
00:16:29,920 --> 00:16:33,520
Speaker 5: unalloyed progress of this country from start until the current

273
00:16:33,520 --> 00:16:37,040
Speaker 5: time right now, when it's been nothing but progress, progress, progress.

274
00:16:37,080 --> 00:16:39,120
Speaker 5: And I would just round out those comments by saying,

275
00:16:39,520 --> 00:16:42,360
Speaker 5: this is an amazing country. We have a broad and

276
00:16:42,440 --> 00:16:45,320
Speaker 5: diverse history. It's complex. I think the complexities are the

277
00:16:45,320 --> 00:16:48,160
Speaker 5: things that make it interesting. We have joined with allies

278
00:16:48,320 --> 00:16:53,040
Speaker 5: to defeat fascism. We have brought inspiration, political, scientific, cultural

279
00:16:53,080 --> 00:16:55,520
Speaker 5: to all parts of the globe we've cured dread disease,

280
00:16:56,120 --> 00:16:58,000
Speaker 5: and there are times when we have failed to live

281
00:16:58,040 --> 00:17:00,880
Speaker 5: up to the better angels of our nature. That's us too,

282
00:17:01,080 --> 00:17:03,880
Speaker 5: And so when it comes to national parks and historic interpretation,

283
00:17:04,359 --> 00:17:06,720
Speaker 5: we want the full story to be told in our

284
00:17:06,800 --> 00:17:09,000
Speaker 5: national parks because we can handle the truth and we've

285
00:17:09,000 --> 00:17:10,000
Speaker 5: got to have that truth.

286
00:17:10,080 --> 00:17:12,919
Speaker 2: And what are you hoping to accomplish with your lawsuit?

287
00:17:13,359 --> 00:17:15,320
Speaker 5: The aim of our lawsuit is to just put a

288
00:17:15,359 --> 00:17:18,639
Speaker 5: stop to history eraser and signage removal. Let's stop it,

289
00:17:19,280 --> 00:17:21,520
Speaker 5: and then let's see if we can't through other means,

290
00:17:21,560 --> 00:17:24,240
Speaker 5: perhaps even legal means, reverse that trend and then repair

291
00:17:24,440 --> 00:17:27,000
Speaker 5: what's been lost. So that's the purpose of the lawsuit.

292
00:17:27,000 --> 00:17:29,680
Speaker 5: We want to stop any additional signage removal in the

293
00:17:29,760 --> 00:17:32,879
Speaker 5: name of restoring truth and sanity to American history international parks.

294
00:17:33,160 --> 00:17:35,879
Speaker 2: I take it you're hoping for more rulings like that

295
00:17:36,040 --> 00:17:39,920
Speaker 2: from federal judge Cynthia Roof, who ordered the Park Service

296
00:17:40,240 --> 00:17:44,000
Speaker 2: to restore the panels on slavery. She found the federal

297
00:17:44,040 --> 00:17:47,639
Speaker 2: government doesn't have the power it claims to dissemble and

298
00:17:47,720 --> 00:17:52,600
Speaker 2: disassemble historical truths, and she said it echoes Big Brother's domain.

299
00:17:52,920 --> 00:17:55,160
Speaker 2: In George Orwell's nineteen eighty four.

300
00:17:55,720 --> 00:17:58,760
Speaker 5: That's exactly correct. Yeah, at this point in time, we

301
00:17:58,920 --> 00:18:02,560
Speaker 5: have an administration right now that has taken this restoration

302
00:18:02,600 --> 00:18:05,840
Speaker 5: of truth and sanity issue too far. And I think

303
00:18:05,880 --> 00:18:10,800
Speaker 5: the judge in the ruling for the preliminary injunction spelled

304
00:18:10,840 --> 00:18:13,960
Speaker 5: it out that the actions being taken by this administration

305
00:18:14,040 --> 00:18:17,359
Speaker 5: related to the Philadelphia case are capricious and arbitrary. We

306
00:18:17,440 --> 00:18:20,000
Speaker 5: certainly feel like that's the case nationwide with some of

307
00:18:20,000 --> 00:18:22,040
Speaker 5: the things that have been removed. You know, it takes

308
00:18:22,040 --> 00:18:25,439
Speaker 5: the National Park Service months and sometimes years to develop

309
00:18:25,520 --> 00:18:28,760
Speaker 5: interpretive arrays and signage that get placed in national parks.

310
00:18:29,200 --> 00:18:34,800
Speaker 5: They consult with historians and museum collections specialists and ethnographers

311
00:18:34,840 --> 00:18:39,080
Speaker 5: and archaeologists and community members and dessendate communities and historians

312
00:18:39,080 --> 00:18:44,160
Speaker 5: from outside the agency to get together and develop really good, accurate,

313
00:18:44,480 --> 00:18:48,119
Speaker 5: inclusive interpretation that will benefit the public and enlighten the

314
00:18:48,119 --> 00:18:50,959
Speaker 5: public and enhance public knowledge about our history. What's happening

315
00:18:51,000 --> 00:18:53,080
Speaker 5: right now is it seems that somebody is in charge

316
00:18:53,119 --> 00:18:55,119
Speaker 5: of an algorithm that any time it finds anything in

317
00:18:55,200 --> 00:18:57,840
Speaker 5: a brochure on a National Park Service interpretive sign that

318
00:18:57,960 --> 00:19:02,200
Speaker 5: mentions the word slavery or the LGBTQ. It gets yanked

319
00:19:02,240 --> 00:19:04,960
Speaker 5: out or it gets flagged for removal. That's not a

320
00:19:05,040 --> 00:19:10,560
Speaker 5: rigorous historical academic process. Again, we've got a very complex story.

321
00:19:11,040 --> 00:19:13,640
Speaker 5: We benefit when we're able to learn about where we've

322
00:19:13,640 --> 00:19:15,960
Speaker 5: come from and about the breadth and depth of the

323
00:19:15,960 --> 00:19:19,119
Speaker 5: contributions that people from a variety of backgrounds have made

324
00:19:19,200 --> 00:19:21,560
Speaker 5: to this country to make us the people that we

325
00:19:21,600 --> 00:19:22,080
Speaker 5: are today.

326
00:19:22,840 --> 00:19:26,160
Speaker 2: So you describe this as a game of whack a mole.

327
00:19:26,760 --> 00:19:30,959
Speaker 2: You don't know where in what National Park some information

328
00:19:31,119 --> 00:19:33,679
Speaker 2: is going to be taken down. So even if you

329
00:19:33,800 --> 00:19:37,400
Speaker 2: get a judge's order, how will that be enforced.

330
00:19:37,960 --> 00:19:40,280
Speaker 5: Well, that's a good question. That is also something for

331
00:19:40,359 --> 00:19:43,159
Speaker 5: the lawyers and the legal teams to figure out. And

332
00:19:43,600 --> 00:19:45,880
Speaker 5: once a ruling is made, we would hope that everybody

333
00:19:45,880 --> 00:19:48,399
Speaker 5: would abide by the law and buy the findings. And

334
00:19:48,440 --> 00:19:51,480
Speaker 5: the idea is we have, at this point in time

335
00:19:52,040 --> 00:19:55,520
Speaker 5: a problem that goes well beyond signage. And I think

336
00:19:55,560 --> 00:19:57,720
Speaker 5: that's the challenge that we've got right now and that

337
00:19:57,760 --> 00:20:00,840
Speaker 5: we're trying to communicate to the public. So if let's

338
00:20:00,840 --> 00:20:05,440
Speaker 5: say the installation about enslaved people that came with George Washington,

339
00:20:05,440 --> 00:20:08,320
Speaker 5: and served his family in Philadelphia when he was president.

340
00:20:08,800 --> 00:20:11,280
Speaker 5: Let's say those signs are removed and they stay down,

341
00:20:11,960 --> 00:20:14,639
Speaker 5: we lose an opportunity at that site to have a

342
00:20:14,680 --> 00:20:17,800
Speaker 5: conversation about the issue of slavery and its place in

343
00:20:17,840 --> 00:20:21,000
Speaker 5: the founding era of this country. And let me tell you,

344
00:20:21,560 --> 00:20:25,000
Speaker 5: George Washington as our president deserves a world of credit

345
00:20:25,160 --> 00:20:28,600
Speaker 5: because he's the guy that helped to establish our democratic traditions.

346
00:20:29,040 --> 00:20:31,359
Speaker 5: When he got to the end of his second presidential term,

347
00:20:31,720 --> 00:20:34,200
Speaker 5: he was standing next to some people who were elbowing

348
00:20:34,280 --> 00:20:37,320
Speaker 5: him and saying, you know, General, you know people with muskets.

349
00:20:37,840 --> 00:20:40,240
Speaker 5: We know people with muskets. We can keep you in

350
00:20:40,280 --> 00:20:42,400
Speaker 5: this position for as long as you'd like to be

351
00:20:42,480 --> 00:20:45,919
Speaker 5: the supreme leader of this nation. In Washington, to his credit,

352
00:20:45,960 --> 00:20:49,800
Speaker 5: said no, I believe in civilian leadership and peaceful transition.

353
00:20:49,840 --> 00:20:51,320
Speaker 5: We're gonna have an election. We're going to let the

354
00:20:51,359 --> 00:20:54,879
Speaker 5: next person come in and take over the presidency. So

355
00:20:54,920 --> 00:20:58,960
Speaker 5: our democratic traditions extend to George Washington and his ability

356
00:20:59,000 --> 00:21:01,800
Speaker 5: to be that self off faith. And he was also

357
00:21:01,840 --> 00:21:05,680
Speaker 5: a guy who owned several enslaved Africans. And I think

358
00:21:05,760 --> 00:21:07,440
Speaker 5: we need to be at a place where we can walk,

359
00:21:07,520 --> 00:21:09,880
Speaker 5: chew gum, and think difficult thoughts all at the same time.

360
00:21:10,480 --> 00:21:13,119
Speaker 5: And so what we hope through this lawsuit is to

361
00:21:13,280 --> 00:21:17,360
Speaker 5: suggest to the administration and to the people in America

362
00:21:17,480 --> 00:21:19,719
Speaker 5: that this is an important issue. We don't need to

363
00:21:20,200 --> 00:21:23,520
Speaker 5: erase our history. We don't need to hide from our history.

364
00:21:23,560 --> 00:21:26,960
Speaker 5: We benefit all of us by being able to think

365
00:21:27,000 --> 00:21:30,520
Speaker 5: critically about things that happened in our past that still

366
00:21:30,640 --> 00:21:33,639
Speaker 5: very much influence us to this day. So in that regard,

367
00:21:33,680 --> 00:21:36,960
Speaker 5: the lawsuit starts with the notion of stopping history erasure

368
00:21:37,000 --> 00:21:39,800
Speaker 5: and signage removal, but it goes well beyond that. It's

369
00:21:39,840 --> 00:21:42,600
Speaker 5: a much more important and challenging issue that we're facing

370
00:21:42,640 --> 00:21:43,080
Speaker 5: right now.

371
00:21:43,720 --> 00:21:48,000
Speaker 2: Alan, I'm curious about something. So websites have been scrubbed

372
00:21:48,000 --> 00:21:53,439
Speaker 2: of information about slavery, sexism, climate change, etc. Is that

373
00:21:53,480 --> 00:21:57,680
Speaker 2: a raised information stored somewhere so you can restore it

374
00:21:57,800 --> 00:22:00,919
Speaker 2: right away when you get a judge's order, or do

375
00:22:01,000 --> 00:22:04,200
Speaker 2: you have to go through some other kind of process

376
00:22:04,400 --> 00:22:06,000
Speaker 2: to develop the information.

377
00:22:06,160 --> 00:22:09,520
Speaker 5: Again, it's a little bit like the novel Fahrenheit four

378
00:22:09,560 --> 00:22:11,280
Speaker 5: or five one where the people wander around in the

379
00:22:11,280 --> 00:22:13,840
Speaker 5: woods and they've memorized all the poetry and the science

380
00:22:13,880 --> 00:22:17,280
Speaker 5: and the literature, and they share those oral histories with

381
00:22:17,400 --> 00:22:19,040
Speaker 5: young people so that at some point in time in

382
00:22:19,080 --> 00:22:21,760
Speaker 5: the future they can come back and maybe republish all

383
00:22:21,800 --> 00:22:24,160
Speaker 5: the books that have been burned. We're not quite at

384
00:22:24,200 --> 00:22:26,080
Speaker 5: that stage at this point in time, but we do

385
00:22:26,200 --> 00:22:29,240
Speaker 5: have an organization called Save Our Signs, and we do

386
00:22:29,320 --> 00:22:33,480
Speaker 5: have people who have taken photographs of websites, screen captures

387
00:22:33,520 --> 00:22:36,120
Speaker 5: of websites, so we do have a sense of before

388
00:22:36,240 --> 00:22:39,520
Speaker 5: and after, and I think there will be the ability

389
00:22:39,600 --> 00:22:42,640
Speaker 5: to rebuild and repair. But I would also tell you this,

390
00:22:43,119 --> 00:22:45,639
Speaker 5: there were some reports or some people who suggested that

391
00:22:45,680 --> 00:22:49,160
Speaker 5: the National Park Service at the President's home in Philadelphia

392
00:22:49,520 --> 00:22:52,679
Speaker 5: were ripping down these displays and maybe even tossing them

393
00:22:52,680 --> 00:22:54,920
Speaker 5: into garbage cans. That's not what happened. They were taken

394
00:22:55,000 --> 00:22:57,560
Speaker 5: down carefully. They have been put in a place whereby

395
00:22:58,240 --> 00:22:59,720
Speaker 5: as they have been ordered by a judge. At some

396
00:22:59,720 --> 00:23:01,760
Speaker 5: point in time, we hope to see them restore to

397
00:23:01,760 --> 00:23:05,119
Speaker 5: their rightful place at the President's home display on enslaved people,

398
00:23:05,680 --> 00:23:08,359
Speaker 5: and so we do have ways that we can recover

399
00:23:08,520 --> 00:23:11,639
Speaker 5: this information, even if it has been sanitized or erased

400
00:23:11,680 --> 00:23:14,600
Speaker 5: from a website. But the lawsuit that we have initiated

401
00:23:14,680 --> 00:23:16,480
Speaker 5: is to make sure that we don't lose anything else.

402
00:23:16,800 --> 00:23:19,920
Speaker 2: It's so important to preserve our history. Thanks so much

403
00:23:19,960 --> 00:23:23,120
Speaker 2: for joining me, Allan. That's Alan Spears of the National

404
00:23:23,160 --> 00:23:27,760
Speaker 2: Parks Conservation Association. Coming up next, the legal fight over

405
00:23:27,800 --> 00:23:32,160
Speaker 2: the EPA scrapping a major climate rule. I'm June Grosso

406
00:23:32,320 --> 00:23:36,040
Speaker 2: and this is Bloomberg effective immediately.

407
00:23:36,119 --> 00:23:40,760
Speaker 3: We're repealing the ridiculous Endangerment Finding and terminating all additional

408
00:23:40,800 --> 00:23:44,640
Speaker 3: green emission standards imposed unnecessarily.

409
00:23:45,040 --> 00:23:47,679
Speaker 2: It took less than a week for lawsuits to be

410
00:23:47,800 --> 00:23:52,880
Speaker 2: filed over the EPA's elimination of the bedrock scientific finding

411
00:23:53,359 --> 00:23:56,240
Speaker 2: that greenhouse gases threaten public health.

412
00:23:56,680 --> 00:23:58,719
Speaker 3: Don't worry about it because it has nothing to do

413
00:23:58,800 --> 00:24:02,719
Speaker 3: with public health. That this is all a scam, giant scam.

414
00:24:02,760 --> 00:24:07,320
Speaker 2: The so called Endangerment Finding forms the basis for regulations

415
00:24:07,359 --> 00:24:11,679
Speaker 2: to fight climate change, and its revocation could unwind current

416
00:24:11,800 --> 00:24:16,000
Speaker 2: air and climate rules. So a coalition of conservation and

417
00:24:16,080 --> 00:24:19,640
Speaker 2: public health groups and a group of youth plaintiffs are

418
00:24:19,840 --> 00:24:24,840
Speaker 2: challenging the repeal, saying it violates federal law and legal precedent,

419
00:24:25,200 --> 00:24:28,360
Speaker 2: and more lawsuits are sure to follow on an issue

420
00:24:28,359 --> 00:24:31,720
Speaker 2: that's likely to reach the Supreme Court. My guest is

421
00:24:31,760 --> 00:24:35,320
Speaker 2: an expert in environmental law, Pat Parento, a professor at

422
00:24:35,320 --> 00:24:40,119
Speaker 2: the Vermont Law and Graduate School. Pat, just how critical

423
00:24:40,480 --> 00:24:43,440
Speaker 2: is this revocation of the endangerment finding.

424
00:24:44,080 --> 00:24:48,080
Speaker 1: It's huge, and it's ugly, and people do not fully

425
00:24:48,320 --> 00:24:52,520
Speaker 1: understand just how devastating this action is going to be,

426
00:24:52,640 --> 00:24:56,360
Speaker 1: not just for climate, but for public health and safety generally.

427
00:24:56,680 --> 00:25:00,119
Speaker 2: And the endangerment finding came out of a landmark our

428
00:25:00,240 --> 00:25:04,159
Speaker 2: Supreme Court case in two thousand and seven, right, so.

429
00:25:04,600 --> 00:25:08,399
Speaker 1: It follows on the heels of course of Massachusetts versus DPA,

430
00:25:08,880 --> 00:25:11,320
Speaker 1: which is still the law of the land, contrary to

431
00:25:11,359 --> 00:25:15,880
Speaker 1: what mister Zelden thinks. And in that decision, the Supreme

432
00:25:15,920 --> 00:25:20,840
Speaker 1: Court not only held that greenhouse gas pollution is regulated

433
00:25:21,040 --> 00:25:23,960
Speaker 1: under the Clean Air Act, the George W. Bush administration

434
00:25:24,320 --> 00:25:27,040
Speaker 1: had taken the position it wasn't regulated, and they made

435
00:25:27,040 --> 00:25:29,639
Speaker 1: many of the same arguments that Trump and Zelden are

436
00:25:29,640 --> 00:25:32,439
Speaker 1: making now. The Supreme Court rejected those. It was a

437
00:25:32,480 --> 00:25:37,040
Speaker 1: five to four decision, and frankly, the majority in the

438
00:25:37,040 --> 00:25:40,320
Speaker 1: Massachusetts case is no longer on the court. So that's

439
00:25:40,359 --> 00:25:43,600
Speaker 1: what gives Trump some hope here. And then secondly, the

440
00:25:43,640 --> 00:25:47,160
Speaker 1: Supreme Court said, since you have the authority to regulate

441
00:25:47,240 --> 00:25:51,480
Speaker 1: greenhouse gas pollution, if you make a finding that such

442
00:25:51,560 --> 00:25:55,040
Speaker 1: pollution and the emissions that cause it in danger public

443
00:25:55,080 --> 00:25:58,720
Speaker 1: health and welfare, you must regulate. You don't have any

444
00:25:58,800 --> 00:26:03,080
Speaker 1: discretion to regulate once you make a finding. And the

445
00:26:03,119 --> 00:26:06,600
Speaker 1: Supreme Court made it clear that was a scientific finding,

446
00:26:07,000 --> 00:26:10,720
Speaker 1: wasn't policy, it wasn't even law necessarily, It was a

447
00:26:10,960 --> 00:26:16,360
Speaker 1: scientific determination that this kind of pollution is endangering people's

448
00:26:16,359 --> 00:26:20,720
Speaker 1: health and welfare. So the science is absolutely crystal clear,

449
00:26:21,480 --> 00:26:25,400
Speaker 1: and the danger is absolutely clear. You can repeal the finding,

450
00:26:25,760 --> 00:26:27,159
Speaker 1: you can't repeal the danger.

451
00:26:27,600 --> 00:26:30,960
Speaker 2: There are two lawsuits in counting, one by a group

452
00:26:31,080 --> 00:26:34,760
Speaker 2: of youth plaintiffs and another by a coalition of health

453
00:26:34,880 --> 00:26:38,720
Speaker 2: and environmental groups. Tell us about their claims that the

454
00:26:38,800 --> 00:26:41,119
Speaker 2: EPA's actions are illegal.

455
00:26:41,720 --> 00:26:45,240
Speaker 1: Well, they're first of all saying that Massachusetts versus EPA

456
00:26:45,359 --> 00:26:48,400
Speaker 1: is the law, and as I said, it states very

457
00:26:48,440 --> 00:26:52,080
Speaker 1: clearly that EPA has the authority to regulate. So now

458
00:26:52,160 --> 00:26:55,359
Speaker 1: Zelden is coming along and saying, well, no, We've looked

459
00:26:55,400 --> 00:26:58,480
Speaker 1: at it again through the lens that we use, and

460
00:26:58,840 --> 00:27:02,680
Speaker 1: our conclusion is that the best reading of the Clean

461
00:27:02,720 --> 00:27:05,560
Speaker 1: Air Act is not the reading that the Supreme Court

462
00:27:05,720 --> 00:27:09,119
Speaker 1: issued in Mas versus CPA, but our reading, which is,

463
00:27:09,160 --> 00:27:12,880
Speaker 1: we don't have any authority to regulate greenhouse gases. They're

464
00:27:12,960 --> 00:27:16,480
Speaker 1: using kind of an originalist argument here. They're trying to

465
00:27:16,520 --> 00:27:19,360
Speaker 1: say that because the Clean Air Act of nineteen seventy

466
00:27:19,800 --> 00:27:24,800
Speaker 1: was focused on initially localized pollution, the smog that people

467
00:27:24,840 --> 00:27:28,199
Speaker 1: were breathing and so forth. But it's not true that

468
00:27:28,240 --> 00:27:32,240
Speaker 1: the Clean Air Act was limited geographically. We have multiple

469
00:27:32,560 --> 00:27:35,840
Speaker 1: instances where the Clean Air Act has been used to

470
00:27:35,920 --> 00:27:41,360
Speaker 1: tackle long range pollution, not just acid rain, but ozone pollution,

471
00:27:41,640 --> 00:27:46,520
Speaker 1: small pollution, fine particulate pollution that floats across the United

472
00:27:46,560 --> 00:27:50,840
Speaker 1: States from upwind states the downwind states. So this notion

473
00:27:51,280 --> 00:27:55,000
Speaker 1: that the Cleaner Act was never intended to regulate anything

474
00:27:55,200 --> 00:27:58,439
Speaker 1: in your immediate area of the area you're breathing is

475
00:27:58,480 --> 00:28:02,560
Speaker 1: simply flatly wrong. That's never been the law. No case

476
00:28:02,600 --> 00:28:05,720
Speaker 1: has ever said that, The Supreme Court has never said that.

477
00:28:06,160 --> 00:28:10,199
Speaker 1: Only Zelden is saying that. So the first argument is

478
00:28:10,240 --> 00:28:16,240
Speaker 1: there really is no legal basis whatsoever for repealing the

479
00:28:16,359 --> 00:28:19,960
Speaker 1: endangerment finding. And of course they also repealed immediately what

480
00:28:20,000 --> 00:28:23,399
Speaker 1: we call the tailpipe standards, the mobile source standards, Cars

481
00:28:23,440 --> 00:28:26,480
Speaker 1: and trucks and so forth. They are the largest source

482
00:28:26,560 --> 00:28:28,800
Speaker 1: of this kind of pollution and a lot of other

483
00:28:28,920 --> 00:28:32,840
Speaker 1: pollution as well. So the notion that this isn't a

484
00:28:32,880 --> 00:28:37,440
Speaker 1: significant category, that's another requirement of the Clean Air Act.

485
00:28:37,480 --> 00:28:39,600
Speaker 1: You have to make a finding that there's a danger

486
00:28:40,160 --> 00:28:42,320
Speaker 1: from these pollutants. But then you have to look at

487
00:28:42,320 --> 00:28:47,160
Speaker 1: the sources of the pollutants and say those sources contribute

488
00:28:47,560 --> 00:28:50,520
Speaker 1: to the danger. But if this is the largest source

489
00:28:50,560 --> 00:28:55,080
Speaker 1: of greenhouse gases and these other pollutants, they surely contribute

490
00:28:55,120 --> 00:28:59,960
Speaker 1: to the danger. So there's no legal basis, no scientific base,

491
00:29:00,760 --> 00:29:03,560
Speaker 1: and there are lots of other arguments for why this

492
00:29:03,800 --> 00:29:06,360
Speaker 1: finding is not based on the.

493
00:29:06,360 --> 00:29:11,720
Speaker 2: Law, particularly in light of Massachusetts versus EPA. Why do

494
00:29:11,760 --> 00:29:16,280
Speaker 2: you think the EPA administrator Lee Zelden took this route.

495
00:29:16,600 --> 00:29:20,520
Speaker 1: Selden is counting on the current composition of the court.

496
00:29:20,720 --> 00:29:23,800
Speaker 1: As I said, the majority that was in place in

497
00:29:23,960 --> 00:29:28,560
Speaker 1: Massachusetts versus EPA is no longer there. It's much more conservative.

498
00:29:28,680 --> 00:29:32,280
Speaker 1: So you have to look at can Selden get the

499
00:29:32,400 --> 00:29:38,120
Speaker 1: court to take review of this issue and reverse Massachusetts

500
00:29:38,200 --> 00:29:42,840
Speaker 1: versus CPA. So this requires basically a headcount. Where do

501
00:29:42,920 --> 00:29:46,920
Speaker 1: you get five votes on this court to overturn Mass

502
00:29:47,000 --> 00:29:50,440
Speaker 1: versus CPA. You don't have the liberal wing of the court.

503
00:29:50,800 --> 00:29:53,640
Speaker 1: You don't have Chief Justice Roberts, who wrote the dissent

504
00:29:53,840 --> 00:29:58,560
Speaker 1: in Massachusetts, because he has stated publicly, even though I dissented,

505
00:29:58,920 --> 00:30:03,040
Speaker 1: I think Mass versus EPA at this point is settled law.

506
00:30:03,160 --> 00:30:06,960
Speaker 1: It's been on the books for nineteen years, right, lots

507
00:30:06,960 --> 00:30:11,680
Speaker 1: of reliance on that decision, lots of regulatory actions based

508
00:30:11,680 --> 00:30:16,160
Speaker 1: on that decision, lots of industry actions in response to

509
00:30:16,240 --> 00:30:19,360
Speaker 1: that decision. So you're not going to get Chief Justice

510
00:30:19,440 --> 00:30:22,400
Speaker 1: Roberts vote. So where do you get the fifth vote.

511
00:30:22,440 --> 00:30:27,280
Speaker 1: You've got the three or four perhaps ultra conservatives on

512
00:30:27,400 --> 00:30:32,200
Speaker 1: the court. That would be Justice Thomas, Justice Alito, Justice Corsition,

513
00:30:32,640 --> 00:30:36,440
Speaker 1: probably Justice Kavanaugh, although even that's not sure. So where

514
00:30:36,520 --> 00:30:39,360
Speaker 1: does the fifth vote come from? It almost has to

515
00:30:39,400 --> 00:30:43,480
Speaker 1: be Justice Barrett, And my view is that she's not

516
00:30:43,520 --> 00:30:47,120
Speaker 1: going to go along with overturning Mass versus CPA because

517
00:30:47,160 --> 00:30:52,000
Speaker 1: of a doctrine that we call statutory starry decisives. So

518
00:30:52,280 --> 00:30:56,480
Speaker 1: once the Court has interpreted a statue, as opposed to say,

519
00:30:56,520 --> 00:31:00,520
Speaker 1: interpreting the Constitution, which can change over time, as we've

520
00:31:00,560 --> 00:31:04,720
Speaker 1: seen but what comes to interpreting a statue like the

521
00:31:04,800 --> 00:31:08,560
Speaker 1: Clean Air Act. The doctrine that that kind of precedent

522
00:31:08,800 --> 00:31:13,160
Speaker 1: should not be overruled or at least lightly overruled, is

523
00:31:13,360 --> 00:31:16,360
Speaker 1: very very strong, and I think Justice Barrett has the

524
00:31:16,480 --> 00:31:20,240
Speaker 1: kind of sort of institutional integrity on the Supreme Court

525
00:31:20,680 --> 00:31:24,520
Speaker 1: to respect that. So I don't see how they get

526
00:31:24,680 --> 00:31:26,360
Speaker 1: Justice Barrett's vote.

527
00:31:26,680 --> 00:31:30,120
Speaker 2: Pat The Supreme Court has surprised us many many times.

528
00:31:30,520 --> 00:31:34,360
Speaker 2: So suppose they do get that fifth vote and Massachusetts

529
00:31:34,480 --> 00:31:38,960
Speaker 2: versus EPA is overturned, can that be undone by the

530
00:31:39,000 --> 00:31:42,800
Speaker 2: next president and the next EPA.

531
00:31:42,920 --> 00:31:46,560
Speaker 1: That would have really devastating consequences because it would mean

532
00:31:46,560 --> 00:31:51,080
Speaker 1: that a future president could not reinstate the endangerment finding.

533
00:31:51,400 --> 00:31:54,280
Speaker 1: Once the Court has determined there is no authority to

534
00:31:54,360 --> 00:31:59,040
Speaker 1: regulate greenhouse gases unless Congress steps in, and that doesn't

535
00:31:59,040 --> 00:32:02,120
Speaker 1: look very likely. That's the end of the ballgame. That's

536
00:32:02,160 --> 00:32:07,200
Speaker 1: the end of federal regulation of climate polluting emissions.

537
00:32:07,240 --> 00:32:10,800
Speaker 2: Devastating, so that it seems like there's a danger in

538
00:32:11,040 --> 00:32:13,320
Speaker 2: escalating this fight to the Supreme Court.

539
00:32:13,800 --> 00:32:16,880
Speaker 1: Oh, I think so. I mean, it's the old adage,

540
00:32:17,040 --> 00:32:20,560
Speaker 1: be careful what you wish for. If Trump is successful

541
00:32:20,600 --> 00:32:23,280
Speaker 1: in getting the court to agree with them. Then what

542
00:32:23,440 --> 00:32:27,160
Speaker 1: happens is the Clean Air Act no longer regulates these pollutants.

543
00:32:27,200 --> 00:32:30,880
Speaker 1: But that means states like California are free to do so,

544
00:32:31,320 --> 00:32:34,920
Speaker 1: and you can be sure they will. California has already

545
00:32:34,960 --> 00:32:40,080
Speaker 1: adopted the most stringent tailpipe standards fuel efficiency standards in

546
00:32:40,120 --> 00:32:45,560
Speaker 1: the country, and thirteen other states have gone along with California.

547
00:32:45,960 --> 00:32:49,240
Speaker 1: That got overturned by Congress. That's another story, but the

548
00:32:49,320 --> 00:32:52,080
Speaker 1: point is, once the Clean Air Act is no longer

549
00:32:52,120 --> 00:32:56,000
Speaker 1: an obstacle to state regulation, it is no longer preempting

550
00:32:56,280 --> 00:33:00,360
Speaker 1: California and other Blue states from regulating these pollutant not

551
00:33:00,400 --> 00:33:03,440
Speaker 1: just from cars, but from lots of other you know,

552
00:33:03,600 --> 00:33:07,840
Speaker 1: sources as well, power plants, oil refineries, et cetera. You know,

553
00:33:08,120 --> 00:33:12,480
Speaker 1: that creates a patchwork of regulation across the country, chaos

554
00:33:12,520 --> 00:33:15,680
Speaker 1: because there'll be litigation over that as well. The one

555
00:33:15,720 --> 00:33:18,960
Speaker 1: thing that industry hates is that kind of chaos, that

556
00:33:19,120 --> 00:33:22,920
Speaker 1: kind of unpredictability. How do you make investment decisions in

557
00:33:22,960 --> 00:33:26,080
Speaker 1: a regulatory environment like that? You know, the one thing

558
00:33:26,160 --> 00:33:30,600
Speaker 1: about federal regulation is once it's in place, that's the baseline.

559
00:33:30,640 --> 00:33:35,400
Speaker 1: That's what everybody can plan against. And particularly for automakers.

560
00:33:35,680 --> 00:33:40,200
Speaker 1: So that's number one. If Trump wins, industry loses. Number

561
00:33:40,280 --> 00:33:44,200
Speaker 1: two is the oil companies also lose. Because the oil

562
00:33:44,200 --> 00:33:48,320
Speaker 1: companies have been somewhat successful getting state and city and

563
00:33:48,440 --> 00:33:52,240
Speaker 1: county lawsuits against them for climate damage. These are the

564
00:33:52,640 --> 00:33:57,760
Speaker 1: so called deception cases, public nuisance cases, more recently climate

565
00:33:57,880 --> 00:34:01,520
Speaker 1: super fun cases, and so forth, and the oil companies

566
00:34:01,560 --> 00:34:04,400
Speaker 1: are making the argument the Clean Air Act preempts all

567
00:34:04,480 --> 00:34:09,080
Speaker 1: these lawsuits for damages. So if Trump wins the repeal

568
00:34:09,120 --> 00:34:11,799
Speaker 1: of the endangerment finding on the basis that the Clean

569
00:34:11,840 --> 00:34:16,640
Speaker 1: Air Act doesn't regulate these pollutants, their preemption argument goes

570
00:34:16,680 --> 00:34:19,680
Speaker 1: out the window. So you know, there are two really

571
00:34:19,760 --> 00:34:25,160
Speaker 1: bad consequences from upholding what Zelden has done, neither of

572
00:34:25,200 --> 00:34:31,080
Speaker 1: which benefits industry, doesn't benefit automakers, doesn't benefit utilities. It

573
00:34:31,239 --> 00:34:32,680
Speaker 1: just creates chaos.

574
00:34:33,080 --> 00:34:36,359
Speaker 2: I'm wondering if there's a way for the plaintiffs here

575
00:34:37,080 --> 00:34:41,200
Speaker 2: to slow walk these lawsuits so that they don't reach

576
00:34:41,320 --> 00:34:44,160
Speaker 2: the Supreme Court during Trump's term.

577
00:34:45,080 --> 00:34:50,360
Speaker 1: That is the strategy. I think of the environmental groups

578
00:34:50,360 --> 00:34:53,879
Speaker 1: that have sued and the blue state attorneys general led

579
00:34:53,880 --> 00:34:57,640
Speaker 1: by California and Massachusetts, which is sure to follow here shortly,

580
00:34:58,160 --> 00:35:01,600
Speaker 1: I think that's their strategy and slow walk. Yes, there

581
00:35:01,640 --> 00:35:04,920
Speaker 1: are some ways to do that. Number One, you can,

582
00:35:05,160 --> 00:35:08,800
Speaker 1: you know, argue for a really long term briefing schedule.

583
00:35:08,920 --> 00:35:11,960
Speaker 1: Lots of issues here. There were five hundred and seventy

584
00:35:12,040 --> 00:35:16,600
Speaker 1: thousand comments on this proposed rule. The APA requires EPA

585
00:35:16,760 --> 00:35:20,759
Speaker 1: to respond to those comments. There's no way EPA has

586
00:35:20,840 --> 00:35:23,680
Speaker 1: done that in the timeframe that they've been working on that,

587
00:35:23,800 --> 00:35:26,759
Speaker 1: so you know they're going to be vulnerable on any

588
00:35:26,840 --> 00:35:30,640
Speaker 1: number of procedural issues. So all of that means the

589
00:35:30,680 --> 00:35:35,000
Speaker 1: briefing is going to be incredibly detailed. The page limits

590
00:35:35,000 --> 00:35:37,080
Speaker 1: are going out the window. You know they're going to

591
00:35:37,160 --> 00:35:40,400
Speaker 1: double or triple the normal briefing that you're talking about,

592
00:35:40,400 --> 00:35:44,719
Speaker 1: plus the administrative record. You can also be arguing that

593
00:35:44,760 --> 00:35:48,319
Speaker 1: the records not complete. Short of it is, there are

594
00:35:48,440 --> 00:35:53,120
Speaker 1: strategies and tactics that lawyers can legitimately use to stretch

595
00:35:53,280 --> 00:35:57,120
Speaker 1: out the briefing, the argument, and so forth. Whether they

596
00:35:57,160 --> 00:36:00,560
Speaker 1: can stretch it out for the full almost three that's

597
00:36:00,600 --> 00:36:01,400
Speaker 1: an open question.

598
00:36:02,000 --> 00:36:05,320
Speaker 2: So we'll keep watch for the motion practice to begin.

599
00:36:05,920 --> 00:36:09,680
Speaker 2: Thanks so much, Pat, as always, best Professor Pat Parento

600
00:36:09,880 --> 00:36:12,920
Speaker 2: of the Vermont Law and graduate School. And that's it

601
00:36:13,000 --> 00:36:15,560
Speaker 2: for this edition of The Bloomberg Law Show. Remember you

602
00:36:15,600 --> 00:36:18,080
Speaker 2: can always get the latest legal news on our Bloomberg

603
00:36:18,160 --> 00:36:21,799
Speaker 2: Law Podcast. You can find them on Apple Podcasts, Spotify,

604
00:36:21,960 --> 00:36:27,000
Speaker 2: and at www dot bloomberg dot com, slash podcast Slash Law,

605
00:36:27,400 --> 00:36:30,000
Speaker 2: And remember to tune into The Bloomberg Law Show every

606
00:36:30,040 --> 00:36:33,960
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso

607
00:36:34,080 --> 00:36:35,640
Speaker 2: and you're listening to Bloomberg