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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. California is challenging

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Speaker 1: the Environmental Protection Agency over its moves to roll back

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Speaker 1: auto emissions, the state's tenth lawsuit against the agency since

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Speaker 1: President Trump took office. California's A. G. Javier B. Serra

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Speaker 1: issued a warning. My message to the e p A

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Speaker 1: and administrator through it is simple, do your job, regulate

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Speaker 1: carbon pollution from vehicles, defend the clean car standards, don't

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Speaker 1: tear them up. Sixteen other states and d C joined

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Speaker 1: in the lawsuit, and joining me is Debra and Civice,

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Speaker 1: director of the Environmental Law Clinic at Stanford University. Debra

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Speaker 1: and the PA has not changed the rules yet, So

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Speaker 1: why is California filing this lawsuit now? Well, that's right,

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Speaker 1: the rules have not been changed yet. But of course

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Speaker 1: the administration has been talking about it for over a year,

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Speaker 1: and in the middle of April, the administration put out

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Speaker 1: a new announcement saying that they were had reviewed the

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Speaker 1: what's what's called the mid term evaluation for these standards

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Speaker 1: that was put out right at the end of the

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Speaker 1: Obama administration. They've reviewed it and they're reversing course on it,

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Speaker 1: and they believe that the auto industry will not be

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Speaker 1: able to meet the standards. So that in mid April,

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Speaker 1: that's that's the decision that the that the California the

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Speaker 1: other states are challenging at this point, and what's the argument.

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Speaker 1: What are the grounds for the lawsuit? So the grounds

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Speaker 1: for the lawsuit I believe, although that what gets filed

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Speaker 1: in the d C circuit is a very short, sort

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Speaker 1: of one paragraph listing all the parties saying that they're

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Speaker 1: challenging that April thirteenth to determination and UH that that

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Speaker 1: the auto industries will not be able to meet the

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Speaker 1: current standards. And so it's not clear from that document

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Speaker 1: exactly the legal arguments that will be made, but but

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Speaker 1: I suspect those arguments will be that, UH, the administration

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Speaker 1: does not have UH sufficient information to support support a

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Speaker 1: reversal of the pretty detailed findings during the very end

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Speaker 1: of the Obama administration. Also, UM, it's set to argue

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Speaker 1: the e p A arbitrarily reversed course on April two. Right?

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Speaker 1: Is that a good argument? Um? It's an interesting argument. Yes,

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Speaker 1: I mean I think it's it's generally the argument that

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Speaker 1: states would make that that that because there's a documented

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Speaker 1: body of evidence that was gathered by e p A

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Speaker 1: before the new administration, that the current administration or to

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Speaker 1: reverse decision has to have enough support and the and

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Speaker 1: their argument is it's arbitrary here because there is not

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Speaker 1: enough support for for reversing. I would say that that

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Speaker 1: I think the defense of the e p A to

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Speaker 1: this particular lawsuit will be there is no final agency

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Speaker 1: action here, and so your your your challenges premature. You

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Speaker 1: have to wait until we actually roll back the standards.

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Speaker 1: So the v Clear Clean Air Act allows California to

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Speaker 1: set its own greenhouse gas emissions regulations because of a

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Speaker 1: legal waiver, and there have been rubblings that the Trump

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Speaker 1: administration may try to revoke that waiver. Which side would

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Speaker 1: have the stronger case in the inevitable court battle that

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Speaker 1: would follow. Yeah, my my sense of course, we'd have

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Speaker 1: to wait and see what the grounds the administration gives

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Speaker 1: for revocation of the waiver. And I think it is

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Speaker 1: telegraphing that that's coming. Um. So I'll have to wait

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Speaker 1: and see, but my sense generally is that the states,

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Speaker 1: California and other states that would join it would have

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Speaker 1: the stronger argument because in the Clean Air Act, Congress

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Speaker 1: made made it clear that the burden was really on

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Speaker 1: the e p a UM in terms of denying the waiver.

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Speaker 1: That is, the presumption is generally the waiver will be

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Speaker 1: granted that it's necessary, and it's the burdens on e

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Speaker 1: p A. So given that at and given the information

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Speaker 1: that's or that's been used to grant the waiver in

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Speaker 1: the past, I think probably the states have the stronger argument.

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Speaker 1: Let's talk about the auto industry itself. Well, weakening the

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Speaker 1: emission standards put US automakers in the future at a

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Speaker 1: disadvantage compared to overseas companies that are advancing the technologies

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Speaker 1: and automobiles. Well, there's certainly an argument that that's that's true.

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Speaker 1: And of course it's the auto industry at the start

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Speaker 1: of the current administration that came in very um strongly

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Speaker 1: and and asked the administration to freeze standards or rollback standards.

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Speaker 1: And I think some of the auto industry are getting

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Speaker 1: some cold feet about that very extreme position for this

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Speaker 1: very reason that it it potentially puts the domestic auto industry, um,

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Speaker 1: you know back, given what's going on in China and

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Speaker 1: other places countries where uh, there's there's a there's a

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Speaker 1: concerted f to move forward with electric vehicles and in

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Speaker 1: higher mileage vehicles. Deborra I mentioned that California has to

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Speaker 1: the e p A ten times since Trump took office.

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Speaker 1: Jerry Brown was at the press conference yesterday and he

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Speaker 1: had some harsh words tell us about he spent decades

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Speaker 1: building up his environmental legacy and he's trying to protect it.

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Speaker 1: Tell us a little bit about that. Yeah, sure, So

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Speaker 1: California has its own cap and trade program around greenhouse

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Speaker 1: gas emissions and is trying to do has a low

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Speaker 1: carbon fuel standard, number of other things, um that the

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Speaker 1: state's trying to do, kind of being out in front

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Speaker 1: of the where the federal government is and kind of

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Speaker 1: pulling a lot of other states along with it. So

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Speaker 1: that's the reputation of California out there. I would say

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Speaker 1: that the that the fuel economy standards that are the

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Speaker 1: heart of this dispute are a big piece of that picture.

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Speaker 1: Because UM, transportation accounts for something like forty of the

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Speaker 1: greenhouse gas emissions nationally in the same as true in California.

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Speaker 1: So um so that the governor and the Attorney General

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Speaker 1: are really trying to guard uh that particular piece of

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Speaker 1: California's policy against rollback at the federal level. It's very

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Speaker 1: early in these suits, but has either side won any

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Speaker 1: of the early legal battles. Um Uh, There's not been

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Speaker 1: much in the way of decisions in these suits. As

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Speaker 1: as I said, one of the things about the current

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Speaker 1: administration is they're pushing stuff out the door that, in

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Speaker 1: my view is not necessarily fully baked, which doesn't make

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Speaker 1: for a good position in defending a lawsuit. So I

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Speaker 1: think we're going to see as this, as these cases

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Speaker 1: move forward, that it will be difficult for the administration

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Speaker 1: to win some of these cases. I suspect the States

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Speaker 1: will prevail in a number of them. In the in

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Speaker 1: the auto in the instance of the auto industry, just

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Speaker 1: give we have about forty seconds here, tell us how

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Speaker 1: this the States suing represent of new car sales nationally.

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Speaker 1: What does that mean for the lawsuit? Right? So that's

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Speaker 1: significant because if if the if the Pruitt, if administrator

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Speaker 1: pro it rolls back the standards, the national standards. That's

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Speaker 1: when the waiver comes into play. And California plus a

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Speaker 1: number of other states are able to go with the

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Speaker 1: California standards. And so if um And as I said,

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Speaker 1: I mean, I think they're likely to win a fight

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Speaker 1: over the waiver, that means that then you've got two sets.

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Speaker 1: I'm sorry, I have to stop you there. Thanks so

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Speaker 1: much that. Stebor And civis director of the Environment to

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Speaker 1: Laugh Clinic at Stanford University. Caravans have been a common

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Speaker 1: tactic for advocacy groups to bring attention to asylum seekers,

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Speaker 1: but the latest caravan of Central American immigrants to arrive

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Speaker 1: at the border has gotten an extraordinary amount of attention

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Speaker 1: even internationally. That's because President Trump has been using the

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Speaker 1: caravan as a symbol of what he sees as lacks

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Speaker 1: immigration laws, a point he reiterated at the White House

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Speaker 1: on Monday. Our immigration laws in this country are a

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Speaker 1: total disaster. They're left at all over the world. They're

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Speaker 1: left at for their stupidity, and we have to have

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Speaker 1: strong immigration laws. My guest is Rick, super professor at

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Speaker 1: the University of Buffalo School of Law. Rick, despite Trump's

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Speaker 1: threats and demands to stop this latest caravan from coming

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Speaker 1: into the country. The immigrants were allowed to enter the

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Speaker 1: country and US officials began processing them on Monday night.

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Speaker 1: Explain why, no matter what the President says, the government

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Speaker 1: has no choice but to consider requests for asylum. So

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Speaker 1: the reason that the silent systems here is because of

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Speaker 1: a treat that many countries signs. So in this case,

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Speaker 1: it's not just US law, it's all other countries that

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Speaker 1: participated in this. Uh that was essentially formed after World

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Speaker 1: War Two and uh, you know, dealing with the refugee

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Speaker 1: situation that occurred afterwards. That essentially allows everyone to make

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Speaker 1: a claim at least that they qualify for asylum because

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Speaker 1: they have a well founded fear of persecution. Uh. And

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Speaker 1: if they sat US side, than the government has an

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Speaker 1: obligation not to send them back into harm's way. So

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Speaker 1: even if Congress was actually able to agree on passing

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Speaker 1: tougher immigration laws, the international treaties would play into that. Yeah,

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Speaker 1: I mean technically the treaties are ratified by Congress. I

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Speaker 1: think could be very unlikely that in any immigration reform

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Speaker 1: that the particular asylum provision itself and our obligation under

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Speaker 1: international law would be changed. Um. But it's certainly been

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Speaker 1: a useful political sort of tool to talk about general

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Speaker 1: immigration form as a whole. Uh, though none of the

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Speaker 1: proposals in immigration reform with regard to the substance as

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Speaker 1: opposed to the procedure of how we actually process them

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Speaker 1: has ever been proposed. Recently, with regard to asylum, Rick

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Speaker 1: explained the process of entering the country and seeking asylum

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Speaker 1: starting with the credible fear interview. Yeah, So essentially what

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Speaker 1: happens is the customers of order protection will do a

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Speaker 1: credible fear interview to just sort of stuss out whether

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Speaker 1: or not they think individual has a plausible claim, uh

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Speaker 1: for a well founded fear of persecution. Once that has

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Speaker 1: been past established, and they attend to air on the

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Speaker 1: side of allowing individuals to proceed with their claim. If

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Speaker 1: there's any plausible claim, uh, then you actually make the

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Speaker 1: claim itself. That would be presented to an immigration judge,

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Speaker 1: there of course backlogged at this particular point, um, and

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Speaker 1: then immigration judge will make that determination um, at which point,

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Speaker 1: if it's affirmed, then we have an obligation not to

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Speaker 1: return them. If it's denied, then they would be removed.

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Speaker 1: So the number of credible fear interviews has soared from

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Speaker 1: five thousand in two thousand seven to about eighty thousand

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Speaker 1: last year, according to The New York Times. So what

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Speaker 1: how how difficult is it to actually get asylum? Asylum

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Speaker 1: is relatively difficult to establish. There's a lot of different criterias,

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Speaker 1: and for this particular wave, which is really coming from

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Speaker 1: Central America, there's a lot of push factors since romocrats,

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Speaker 1: leading to some people are calling the surge. UM, what

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Speaker 1: the biggest concern is trying to fit what they fear

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Speaker 1: into one of the five categories. So it's not just

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Speaker 1: that you fear for your life, but you fear for

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Speaker 1: your life based on a particular reason that these individuals

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Speaker 1: UH that are targeting you are targeting you for UM

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Speaker 1: trying to prove that, especially when the concern is just

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Speaker 1: about generalized violence, UH are since times a difficult. The

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Speaker 1: administration has complained about what it's called the catch and

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Speaker 1: release policies that allow people seeking asylum to be free

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Speaker 1: while their cases are pending. Do you see any shift

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Speaker 1: in policy from the Obama administration to the Trump administration

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Speaker 1: with regard to the process of determining asylum claims. Yeah,

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Speaker 1: so there have been some shift going on with guard

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Speaker 1: determining asylum claims. Um. There are some moves by Jeff

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Speaker 1: Sessions and Department of Justice of trying to and it

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Speaker 1: seems like he's moving towards changing some of the criteria

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Speaker 1: of what would qualify under the abstintive criterias themselves. Uh,

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Speaker 1: though that hasn't been reported very much, and we're sort

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Speaker 1: of waiting to see what he's going to actually announce,

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Speaker 1: because he's going to be able to make those decisions

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Speaker 1: on their own. As we've got to catch and release.

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Speaker 1: It's a sort of a difficult prong. President Obama also

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Speaker 1: struggle with it as well, and certainly President Trump has

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Speaker 1: released several two executive orders and APPROPLAM sort of a

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Speaker 1: memorandum encouraging the elimination of a catching release UM. Unfortunately,

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Speaker 1: just seems like the capacity to keep all these individuals

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Speaker 1: in detention, especially with the court backlock um. And also

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Speaker 1: because so many of them are families and children, uh

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Speaker 1: and federal law along with a settlement does require specific

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Speaker 1: provisions for children. Right, we can't keep them in prison

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Speaker 1: like facilities. Is really making hard to let's say, eliminate catching,

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Speaker 1: release or at least releasing individuals pending their immigration claim. Um.

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Speaker 1: So the Justice Department filed criminal charges against eleven suspected

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Speaker 1: members of the carat and for entering the country illegally.

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Speaker 1: Explain how that's different from the group who actually waited

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Speaker 1: at the border. Yeah, so this is this is actually

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Speaker 1: quite interesting, especially with all the talk about border protection,

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Speaker 1: because for the vast majority of the surge and the

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Speaker 1: vast majority of these individuals in the caravan, what they're

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Speaker 1: actually doing is following the process that's laid out. So

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Speaker 1: they're presenting themselves to customers and border protection for uh inspection. Uh,

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Speaker 1: they're making their immigration claim. They're going to go through

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Speaker 1: the process of determination be made, and they either remain

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Speaker 1: or they get removed. Uh. The eleven individuals, and again

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Speaker 1: we'll hear more data facts about them, uh maybe in

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Speaker 1: a few weeks time. If they try to elude inspection

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Speaker 1: and enter the country without inspection, essentially trying to sneak

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Speaker 1: into the country, then that may subject them to criminal penalties,

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Speaker 1: especially they had tried to enter before. Um. But what's

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Speaker 1: interesting in some ways with all the talk about word

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Speaker 1: protection is that the vast majority of the surge, and

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Speaker 1: of course all the individuals caravan or actually following the

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Speaker 1: process the way it's set out. Um. And in some

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Speaker 1: sense they're presenting themselves to customers and border protection as

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Speaker 1: opposed to trying to lead their detection. Rick. Uh, from

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Speaker 1: what I've been reading, a lot of the immigrants in

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Speaker 1: the caravan will be will be talking about the persecution

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Speaker 1: by gangs and gang violence. Is that going to be

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Speaker 1: enough to get asylum? Yeah? The game violence claim, well,

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Speaker 1: I mean, in some ways to claim itself reflects the

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Speaker 1: fact that there is a substantial increase in violence in

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Speaker 1: the Central American countries, right. So, uh, this is the

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Speaker 1: reason why the surge is really coming from Central America

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Speaker 1: as opposed to other countries like Mexico, which has been

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Speaker 1: sort of the focus of concern for a long time. Um.

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Speaker 1: The claims themselves really depend on a case by case basis.

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Speaker 1: There have been some claims, uh of game violence that

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Speaker 1: have successfully claimed that they were persecuting specific individuals because

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Speaker 1: they belonged to a social group of family affiliation, because

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Speaker 1: of some sort of a political penny in because maybe

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Speaker 1: they spoke out against the gags, or try to make

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Speaker 1: some sort of uh a move against them that isn't

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Speaker 1: entirely just anti game, but really sort of expressing a

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Speaker 1: political opinion about how how things should operate. Um. And

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Speaker 1: it may be actually, since a lot of these individuals

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Speaker 1: to come from Honduras, especially with the political turmoil Hunduras,

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Speaker 1: that some of them may actually be presenting claims based

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Speaker 1: on government persecution, which oftentimes would be easier case because

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Speaker 1: it falls into a political opinion. But all these things

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Speaker 1: really depend on a case by case analysis, which is

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Speaker 1: why it takes so much time. But in some ways

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Speaker 1: it's why we assure that the people that we don't

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Speaker 1: remove are the people that really are a threat based

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Speaker 1: on this treaty. Thanks so much, Rick, that's Professor Rick

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Speaker 1: Sue of the University of Buffalo School of Law. Thanks

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

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Speaker 1: and listen to the show on Apple Podcasts, SoundCloud, and

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Speaker 1: on Bloomberg dot com slash podcast. I'm June Brosso. This

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Speaker 1: is Bloomberg. Given to patent the gidn end Up, the

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Speaker 1: flume