WEBVTT - Can Biden Reverse Trump Environmental Damage? 0:00:00.320 --> 0:00:05.120 This is Bloomberg Law with June Grassoe from Bloomberg Radio. 0:00:06.240 --> 0:00:10.559 President elect Joe Biden calls climate change the existential threat 0:00:10.600 --> 0:00:14.160 of our time and has proposed an aggressive climate agenda, 0:00:14.400 --> 0:00:17.680 including a sweeping two trillion dollar plan to promote clean 0:00:17.800 --> 0:00:20.759 energy and emissions free electric grid and an end to 0:00:20.880 --> 0:00:24.439 carbon emissions from power plants in fifteen years. We need 0:00:24.440 --> 0:00:27.560 to meet the moment with the urgency demands as you 0:00:27.640 --> 0:00:32.680 would during any national emergency, and from this crisis. From 0:00:32.720 --> 0:00:35.720 these crisis, I should say, we need to seize an 0:00:35.760 --> 0:00:38.839 opportunity to build back and build back better than we 0:00:38.840 --> 0:00:43.040 were before. But after four years of the Trump administration's 0:00:43.120 --> 0:00:47.520 climate denials, reversal of climate policies, and rollback of more 0:00:47.560 --> 0:00:51.879 than one hundred environmental regulations, Biden is starting from behind. 0:00:52.280 --> 0:00:55.480 Joining me is environmental law professor Pat Parento of the 0:00:55.560 --> 0:00:59.200 Vermont Law School. Pat, how would you describe President Trump's 0:00:59.280 --> 0:01:05.120 environmental legacy? That's easy. This was the worst administration in history. 0:01:05.440 --> 0:01:09.080 No administration comes close to the kind of attempt at 0:01:09.200 --> 0:01:12.680 damage that the Trump administration has done to our environmental 0:01:12.760 --> 0:01:16.440 laws and institutions, not all of which has been successful. 0:01:16.480 --> 0:01:19.240 And we need to remind ourselves that much of what 0:01:19.280 --> 0:01:22.600 Trump has attempted to do can be reversed by the 0:01:22.600 --> 0:01:25.920 Biden administration, not maybe right away. Some of it's going 0:01:25.959 --> 0:01:29.039 to take longer than we might like, you know, rulemaking 0:01:29.240 --> 0:01:32.200 take one to two years on average, But there are 0:01:32.319 --> 0:01:34.200 as an awful lot of things that Biden can do 0:01:34.319 --> 0:01:39.039 very quickly, including rejoining the Paris Agreement and probably restoring 0:01:39.080 --> 0:01:42.360 protections for places like the National Monuments and maybe the 0:01:42.440 --> 0:01:45.680 Arctic National Wildlife Refuge in places like that. And then 0:01:45.680 --> 0:01:48.720 in other cases, a lot of what Trump has put 0:01:48.760 --> 0:01:52.920 into motion or even concluded in terms of rules and 0:01:53.000 --> 0:01:56.760 policies have been challenged in court, and as we've talked before, 0:01:57.280 --> 0:02:00.120 the Trump administration has one of the worst track records 0:02:00.160 --> 0:02:04.080 in court of any administration, something like their cases they've 0:02:04.120 --> 0:02:08.639 lost according to the Institute for Policy Integrity, anyway, and 0:02:08.720 --> 0:02:13.120 so all of those cases that are still pending in court, 0:02:13.320 --> 0:02:16.800 the Biden administration can come in and either negotiate a 0:02:16.840 --> 0:02:21.400 settlement of the cases or simply confess that the decisions 0:02:21.400 --> 0:02:25.080 that were made by Trump were unlawful and flawed in 0:02:25.120 --> 0:02:28.560 a number of ways, and therefore the matter should be 0:02:28.960 --> 0:02:33.400 remanded to the Biden administration for correction. So a lot 0:02:33.480 --> 0:02:36.800 of the damage that Trump has left us with is 0:02:36.840 --> 0:02:40.160 really opportunities lost. You know, we should have been making 0:02:40.440 --> 0:02:45.120 steady progress on climate change mitigation and air and water 0:02:45.240 --> 0:02:48.040 quality improvement and a lot of things that we've got 0:02:48.280 --> 0:02:51.120 backwards on, or at least not made any progress on 0:02:51.560 --> 0:02:54.760 in the last four years. So that's probably the single 0:02:54.800 --> 0:02:59.280 biggest legacy. That plus hollowing out some of the institutions 0:02:59.560 --> 0:03:04.880 like p A, crippling their scientific capability, stacking the advisory 0:03:04.919 --> 0:03:08.639 boards that are supposed to be objective scientists with industry 0:03:08.680 --> 0:03:12.800 representatives for example, demoralizing the staff of e p A 0:03:12.919 --> 0:03:15.399 so that many of them have left, and a lot 0:03:15.440 --> 0:03:19.560 of the institutional memory has been lost, at least for now, 0:03:19.880 --> 0:03:24.440 So rebuilding these institutions is going to take some time. 0:03:24.560 --> 0:03:27.480 I remember that in the Reagan years we had some 0:03:27.600 --> 0:03:31.080 similar setbacks, and I went to work for e p 0:03:31.240 --> 0:03:35.320 A actually during the Reagan administration when Bill Ruckles House 0:03:35.560 --> 0:03:39.360 was restored as the administrator of e p A, and 0:03:39.640 --> 0:03:44.040 I was enlisted to help revitalize the enforcement program at 0:03:44.080 --> 0:03:46.320 e p A, and it took, you know, several years 0:03:46.600 --> 0:03:49.360 to do that. So that's what we're looking at now 0:03:49.400 --> 0:03:54.040 for the next four years is repairing, rebuilding, restoring, and 0:03:54.040 --> 0:03:59.480 then hopefully making some serious progress. So is there anything 0:04:00.080 --> 0:04:05.080 that the Trump administration has done that can't be undone. 0:04:05.400 --> 0:04:09.040 I don't think so. You know, undoubtedly there is more 0:04:09.200 --> 0:04:13.360 carbon dioxide in the atmosphere today than there would have been, 0:04:13.760 --> 0:04:17.120 certainly if Hillary Clinton had been elected. So that's permanent. 0:04:17.320 --> 0:04:20.480 The amount of emissions that could have been avoided and prevented, 0:04:20.839 --> 0:04:23.680 we can't get those back. And some of the damage 0:04:23.800 --> 0:04:27.839 from air pollution and water pollution, at least in the 0:04:27.880 --> 0:04:30.760 relatively long term. That is, it's going to take a 0:04:31.000 --> 0:04:34.520 while to undo some of the pollution that occurred. For example, 0:04:35.200 --> 0:04:39.640 when Andrew Wheeler, the EPA administrator, declared that because of COVID, 0:04:40.040 --> 0:04:42.400 industries were no longer going to be required to comply 0:04:42.520 --> 0:04:45.080 with their permits. If you remember, we went through about 0:04:45.080 --> 0:04:48.600 four months of this immunity order that he issued. You know, 0:04:48.760 --> 0:04:53.000 that pollution that was never monitored and measured, So we 0:04:53.080 --> 0:04:57.000 don't know actually today how much pollution went into the 0:04:57.040 --> 0:05:00.320 air and went into the water during that period of rates, 0:05:00.360 --> 0:05:03.640 if you want to call that that Wheeler gave the industry. 0:05:03.800 --> 0:05:07.200 So there are some things like that where you can't 0:05:07.360 --> 0:05:11.120 undo some of the damage. But I don't think those 0:05:11.240 --> 0:05:16.520 kinds of impacts are as serious as the failure to 0:05:16.680 --> 0:05:21.240 really make meaningful progress on transitioning to cleaner energy. If 0:05:21.279 --> 0:05:25.920 to Clean Power plan that Obama had created had been 0:05:26.000 --> 0:05:30.320 implemented and the fuel economy rules that Obama put in 0:05:30.360 --> 0:05:33.880 place had been honored, we would be much further along 0:05:34.440 --> 0:05:38.000 on the path of clean energy and cleaner transportation systems 0:05:38.000 --> 0:05:42.800 than we are now. So those kinds of lost opportunities 0:05:42.800 --> 0:05:46.360 are really hard to recapture. But but that's what we're facing. 0:05:46.440 --> 0:05:49.280 A President Trump took action to shrink some of our 0:05:49.400 --> 0:05:53.960 national monuments. Can that be easily reversed? Yes, we're talking 0:05:53.960 --> 0:05:57.680 about Bears Ears and Grand Staircase Escalante, which are these 0:05:57.680 --> 0:06:01.920 two magnificent monuments in Utah on Colorado, and they really 0:06:01.920 --> 0:06:04.960 are spectacular. I've I've actually visited both of them, and 0:06:05.279 --> 0:06:08.880 with dev Holland, the first Native American to be nominated 0:06:08.880 --> 0:06:12.240 to be Secretary of Interior, assuming she's confirmed and she 0:06:12.400 --> 0:06:14.120 is a member of Congress, so at least she has 0:06:14.160 --> 0:06:16.920 that going for her. There's no question, but what the 0:06:16.920 --> 0:06:20.760 original boundaries that President Obama had established for those two 0:06:20.760 --> 0:06:25.320 monuments will be reinstated. In fact, bears Ears will probably 0:06:25.360 --> 0:06:27.599 be the first one because she has a very close 0:06:27.600 --> 0:06:30.800 connection to that, being a Native American herself. That one 0:06:30.839 --> 0:06:34.120 can probably be done within the first hundred days. Grand 0:06:34.200 --> 0:06:37.200 staircase may take a little longer. It's much bigger, and 0:06:37.240 --> 0:06:39.839 you know, Biden is going to have to pay attention 0:06:39.839 --> 0:06:43.359 to the politics as well as his legal authority to 0:06:43.480 --> 0:06:45.680 restore the monuments. I think he's going to have to 0:06:45.720 --> 0:06:48.320 reach out to some of the communities in Utah, in 0:06:48.360 --> 0:06:52.159 Colorado that were supportive of what Trump did and reducing 0:06:52.600 --> 0:06:54.840 the boundaries. I don't know exactly what he's going to 0:06:54.920 --> 0:06:58.320 be able to do to mollify them, but I don't 0:06:58.320 --> 0:07:01.000 think he can just simply ignore some of the political 0:07:01.040 --> 0:07:05.200 fallout of reversing Trump policies because they were popular in 0:07:05.279 --> 0:07:08.160 rural America and they still are. We have to take 0:07:08.200 --> 0:07:11.280 account of that. You know, Trumpism is still alive. Seventy 0:07:11.280 --> 0:07:14.120 four million people voted for it. Many of them are 0:07:14.120 --> 0:07:18.160 in its western rural communities where these monuments are located. 0:07:18.200 --> 0:07:20.960 So you know, Biden is going to have to figure 0:07:21.000 --> 0:07:24.360 out how he can offer those communities some kind of 0:07:24.520 --> 0:07:29.000 program or assistance of some kind to offset what they 0:07:29.080 --> 0:07:32.920 think will be taking back something Trump gave them. Let's 0:07:32.920 --> 0:07:36.800 talk about the team that Biden has put together to 0:07:36.960 --> 0:07:40.040 handle the environment. What's your take on the team and 0:07:40.120 --> 0:07:44.440 the new wep administrator in particular. Yeah, the very talented 0:07:44.480 --> 0:07:47.560 group of people he's bringing into the administration. Of course, 0:07:47.560 --> 0:07:50.840 some of them are familiar faces. The new EPA administrator, 0:07:50.880 --> 0:07:54.160 on the other hand, is not a familiar face. Reagan, 0:07:54.440 --> 0:07:58.000 who's the head of the North Carolina Environmental Department. I 0:07:58.000 --> 0:08:01.160 would say it was not really on many people's radar. 0:08:01.600 --> 0:08:03.960 I mean, he's a black man, so it's pretty obvious 0:08:04.200 --> 0:08:08.160 that President elect Biden owes his election frankly to the 0:08:08.200 --> 0:08:11.000 black community largely. I mean, it's brought it than that, 0:08:11.080 --> 0:08:13.480 but that was that was the impetus, the big vote 0:08:13.480 --> 0:08:16.400 turnout for him. So it's not just a matter of 0:08:16.760 --> 0:08:19.600 paying back, if you will, the groups that put him 0:08:19.600 --> 0:08:21.880 in in the in office, but it's also looking for 0:08:21.960 --> 0:08:27.080 talented people in those communities, those environmental justice communities, and 0:08:27.360 --> 0:08:31.320 I think he's picked a good one was Reagan Um 0:08:31.360 --> 0:08:34.760 and then of course he brought GENA. McCarthy back as 0:08:34.840 --> 0:08:39.880 climates are kind of an unfortunate term. Perhaps on the 0:08:39.920 --> 0:08:43.760 domestic side, and of course John Kerry as the climate 0:08:43.960 --> 0:08:47.360 envoy on the international side. That those are two of 0:08:47.360 --> 0:08:50.640 the strongest I think possible people you could have in 0:08:50.679 --> 0:08:55.559 your administration on climate issues. UM. And then c e Q. 0:08:56.640 --> 0:08:59.840 He's brought in another black woman who was formally was 0:09:00.280 --> 0:09:03.000 to and d P A m and who was with 0:09:03.040 --> 0:09:06.800 the Sudden Environmental Law Center UH for for many years 0:09:07.000 --> 0:09:10.319 and and UH so that's another strong edition dev Holland 0:09:10.320 --> 0:09:14.920 and interior um is the first time UH pick for 0:09:14.960 --> 0:09:19.000 that position, and so forth. So I think I think 0:09:19.000 --> 0:09:23.920 the team has a lot of experience. UM. Some have 0:09:24.120 --> 0:09:28.640 more Washington, d C. Experience and some have more outside 0:09:28.679 --> 0:09:32.560 the Beltway experience, and that blend, that combination is is 0:09:32.559 --> 0:09:36.040 probably a good thing. UM. I think, you know, being 0:09:36.120 --> 0:09:41.000 in touch with what states have been doing, UM, like 0:09:41.160 --> 0:09:44.960 North Carolina on environmental justice issues. They have a lot 0:09:45.040 --> 0:09:49.520 of big problems in North Carolina with these massive factory farms, 0:09:49.559 --> 0:09:54.839 these hog farms that have caused tremendous pollution in black 0:09:54.880 --> 0:09:58.880 communities and so forth. So you know, he's being true 0:09:58.920 --> 0:10:03.640 to what he campaign and he made environmental justice a 0:10:03.720 --> 0:10:06.920 major focus and he's following through on that. And of 0:10:06.960 --> 0:10:10.560 course with Kamala Harris at his side, I think we 0:10:10.600 --> 0:10:13.640 can be sure that we're going to be seeing even 0:10:13.720 --> 0:10:18.160 more of that kind of focus. Now we don't know 0:10:18.200 --> 0:10:21.400 the result to the Georgia elections yet, but if the 0:10:21.440 --> 0:10:24.680 Democrats don't gain control of the Senate, will Biden have 0:10:24.800 --> 0:10:30.320 to achieve most of his environmental goals through executive action. Yes, 0:10:30.480 --> 0:10:33.840 that's everybody's thinking, and I think that's true. On the 0:10:33.880 --> 0:10:38.080 other hand, you know, with this recent COVID package which 0:10:38.200 --> 0:10:42.600 Trump finally signed after dilly dallying and delaying and costing 0:10:42.600 --> 0:10:46.719 people some money, there were two pieces that the Democrats 0:10:46.840 --> 0:10:50.720 managed to slip into that bill that we're climate related, 0:10:51.000 --> 0:10:53.960 and they were important. One is a phase out of 0:10:54.000 --> 0:10:58.439 what we call these super pollutants hfc's. These are refrigerants 0:10:58.559 --> 0:11:02.119 primarily and fire fighting chemicals, and there are a combination 0:11:02.160 --> 0:11:04.640 of what we call ozone deplets. They're the kinds of 0:11:04.760 --> 0:11:07.839 chemicals that break down the ozone layer that protects us 0:11:08.160 --> 0:11:12.240 the multi violent radiation. But they're also very potent global 0:11:12.280 --> 0:11:16.480 warming pollutants and thousands of times in fact, more potent 0:11:16.679 --> 0:11:20.720 than c O two. And so that was amazing that 0:11:20.840 --> 0:11:23.800 they have now committed the United States under what's called 0:11:23.800 --> 0:11:27.360 the key Gali amendment to the Montreal Protocol to phasing 0:11:27.360 --> 0:11:31.280 out these very dangerous hfc's and replacing them over a 0:11:31.320 --> 0:11:35.360 fairly quick period of time. So that's the big deal 0:11:35.600 --> 0:11:39.760 in terms of climate. And then in addition, an extension 0:11:39.840 --> 0:11:43.920 of a lot of the renewable energy tax incentive, the 0:11:43.960 --> 0:11:48.600 production tax credit for example for solar, that was also included. 0:11:48.640 --> 0:11:51.120 So the point is, I think Biden is going to 0:11:51.280 --> 0:11:55.920 look for those kinds of opportunities with Congress not trying 0:11:55.960 --> 0:11:59.120 to pass a big cap and trade bill, which Obama 0:11:59.160 --> 0:12:02.480 tried to do, probably not enough votes for that, but 0:12:03.040 --> 0:12:08.000 using these big money bills, budget bills, defense bills, you know, 0:12:08.080 --> 0:12:11.559 these what they call must path bills, using those as 0:12:11.679 --> 0:12:18.199 vehicles to negotiate improvements energy and transportation systems and so forth. 0:12:18.280 --> 0:12:21.280 I think we might be optimistic and thinking that Biden 0:12:21.400 --> 0:12:24.840 is going to be able to score some fairly significant victories. 0:12:25.000 --> 0:12:27.280 Not as much as we need. Everybody knows that we 0:12:27.360 --> 0:12:29.680 need a lot more than we're willing to do right 0:12:29.679 --> 0:12:32.560 now for climate, but I think he's going to be 0:12:32.640 --> 0:12:37.079 able to get some legislative victories. But mostly what he's 0:12:37.080 --> 0:12:39.680 going to be doing, certainly for the first two years, 0:12:40.120 --> 0:12:44.160 is repairing the damage that Trump has done and reversing 0:12:44.400 --> 0:12:47.280 the rollbacks as they're called that Trump put in place. 0:12:47.760 --> 0:12:50.920 Could the new conservative majority on the Supreme Court make 0:12:51.000 --> 0:12:54.559 it more difficult for Buying to institute some of his 0:12:54.720 --> 0:12:58.840 environmental goals. Yes. In short, yeah, we all have to 0:12:58.840 --> 0:13:02.079 take account now of the fact that the six to 0:13:02.200 --> 0:13:05.560 three conservative majority on the Supreme Court is the most 0:13:05.600 --> 0:13:09.320 conservative court that we've seen, certainly in my lifetime. And 0:13:09.440 --> 0:13:13.000 it's a court now where Chief Justice Roberts is no 0:13:13.080 --> 0:13:15.560 longer the swing vote. You don't need his vote in 0:13:15.679 --> 0:13:19.160 order to reach a very conservative outcome. When it comes 0:13:19.160 --> 0:13:22.480 to environmental cases, the issues are going to be you know, 0:13:22.559 --> 0:13:27.280 how far can the Biden administration go in interpreting our 0:13:27.320 --> 0:13:30.240 existing laws, like the Clean Air Act, in ways to 0:13:30.280 --> 0:13:34.720 aggressively pursue carbon at greenhouse gas pollution. That is going 0:13:34.760 --> 0:13:37.200 to be a real challenge. Again, We're probably not going 0:13:37.240 --> 0:13:39.560 to be able to go as far as the Obama 0:13:39.600 --> 0:13:43.880 administration wanted to go in using its Clean Air Act authority, 0:13:44.200 --> 0:13:47.640 at least as regards to things like power plants, which 0:13:47.640 --> 0:13:53.120 are integral to the way states produced their electricity, brought 0:13:53.160 --> 0:13:58.120 their economies, and so trying to use federal laws and 0:13:58.200 --> 0:14:02.800 regulations to control that vast electricity system in the country 0:14:03.160 --> 0:14:05.959 is difficult, and the conservative Supreme Court is going to 0:14:06.040 --> 0:14:09.720 be skeptical of e p A's power to really sort 0:14:09.760 --> 0:14:14.319 of reorganize the way electricity is produced and distributed across 0:14:14.360 --> 0:14:17.240 the country. But where it comes to things like fuel 0:14:17.240 --> 0:14:22.160 economy standards for mobile sources for cars primarily, but also 0:14:22.600 --> 0:14:25.960 you know, light trucks and other vehicles, passenger vehicles, you know, 0:14:26.080 --> 0:14:31.000 that's traditionally a federal responsibility because you don't want to 0:14:31.040 --> 0:14:34.920 have the fifty states deciding individually what kinds of fuel 0:14:34.920 --> 0:14:38.360 economy standards to have. The industry wouldn't be able to 0:14:38.480 --> 0:14:41.800 cope with a situation where you had fifty different standards, right, 0:14:42.160 --> 0:14:46.600 So there's a situation where having a single uniform national 0:14:46.760 --> 0:14:50.600 standard for fuel economy does make some sense, even I 0:14:50.640 --> 0:14:54.920 think to some conservative justices. So what that means is 0:14:55.040 --> 0:14:57.840 Biden is going to have picked targets and he's going 0:14:57.880 --> 0:15:02.120 to have to decide which kinds of measures can he 0:15:02.280 --> 0:15:05.600 take to address climate in particular, but other things as 0:15:05.600 --> 0:15:10.280 well that have the best chance of convincing a conservative 0:15:10.320 --> 0:15:15.200 court that his administration is not acting outside the bounds 0:15:15.200 --> 0:15:17.560 of the laws and the authority that they've been given 0:15:17.560 --> 0:15:21.840 from Congress. The big thing that the conservative justices are 0:15:21.880 --> 0:15:26.240 skeptical about is the growth of the administrative state, you know, 0:15:26.360 --> 0:15:30.760 having these quote unelected bureaucrats making up laws as they 0:15:30.840 --> 0:15:35.720 go or overreaching the authorities that they've been given. So 0:15:35.800 --> 0:15:39.120 the conservative justices are going to sort of police the 0:15:39.200 --> 0:15:44.720 boundaries of administrative authority very rigorously and with sort of 0:15:44.760 --> 0:15:48.440 a strict construction as kind of approach to things. So 0:15:48.560 --> 0:15:51.480 Biden is just going to have to understand that and 0:15:51.600 --> 0:15:55.080 craft the rules that he adopts with that in mind, 0:15:55.600 --> 0:15:58.240 and then take his chances, because you know, you never 0:15:58.400 --> 0:16:01.400 know exactly how these cases are going to come out, 0:16:01.440 --> 0:16:06.240 because the courts are continually surprising us with decisions that 0:16:06.440 --> 0:16:10.720 the conventional wisdom has been proven wrong over and over again. 0:16:11.080 --> 0:16:16.240 So that's another aspect of using your regulatory authority wisely, 0:16:16.440 --> 0:16:19.760 but taking some chances and not knowing for sure whether 0:16:19.840 --> 0:16:23.200 what you're doing is going to pass. Muster with five 0:16:23.320 --> 0:16:26.200 votes on the Supreme Court, I don't think Biden can 0:16:26.240 --> 0:16:30.520 administer effectively by worrying that maybe he's gonna lose in 0:16:30.520 --> 0:16:33.440 the Supreme Court. He's got to take that into account 0:16:33.640 --> 0:16:36.040 and weigh the risks of that. But in the end 0:16:36.160 --> 0:16:38.400 he's going to have to take some actions and then 0:16:38.480 --> 0:16:41.560 just see how it plays out. Thanks Pat. That's Pat 0:16:41.560 --> 0:16:46.400 Parento of the Vermont Law School. As the US braces 0:16:46.440 --> 0:16:50.000 for a new wave of COVID nineteen infections, the government's 0:16:50.040 --> 0:16:55.000 top infectious disease Dr Anthony Fauci, says the country's vaccination 0:16:55.120 --> 0:16:59.120 rate is lagging. The government is managing distribution of fiser 0:16:59.160 --> 0:17:02.520 and madernash with the goal of getting twenty million doses 0:17:02.520 --> 0:17:07.240 distributed before early January. Vaccinations in the US began December 0:17:07.280 --> 0:17:11.200 fourteenths with healthcare workers, and so far only two point 0:17:11.240 --> 0:17:15.240 thirteen million doses have been administered, according to a nationwide 0:17:15.240 --> 0:17:18.600 tally from the Centers for Disease Control and Prevention. But 0:17:18.720 --> 0:17:22.080 even if vaccines are available, there's the question of who 0:17:22.080 --> 0:17:26.399 will refuse to get them. Gallipole published last month shows 0:17:26.400 --> 0:17:29.159 that about four and ten Americans would not take a 0:17:29.240 --> 0:17:33.199 vaccine approved by the US Food and Drug Administration, suggesting 0:17:33.240 --> 0:17:37.200 the availability of shots won't guarantee that workers will take them. 0:17:37.400 --> 0:17:40.400 Joining me as Bloomberg Law reporter robert Ia Fola, who 0:17:40.440 --> 0:17:44.000 covers labor and employment law, There's been so much talk 0:17:44.200 --> 0:17:48.639 about when the vaccines will be available to different groups, 0:17:48.640 --> 0:17:51.640 but a gallop pole shows that a lot of Americans 0:17:52.080 --> 0:17:55.400 don't want to get a vaccine. Yeah, there's been a 0:17:55.640 --> 0:17:59.640 shift that you can see in the public calling from 0:17:59.640 --> 0:18:03.320 the all to the point that we're at now where 0:18:03.320 --> 0:18:07.320 the vaccine is being made available to the healthcare workers 0:18:07.359 --> 0:18:11.080 first before they start being made available to other workers. 0:18:11.320 --> 0:18:15.679 There was pretty pronounced resistance that was reflected in polls 0:18:15.800 --> 0:18:20.600 again in the fall. But you're seeing that UM reduced 0:18:20.720 --> 0:18:24.320 as time goes on. But there is still UM some 0:18:24.480 --> 0:18:28.200 resistance to me in the population as reflected in the polls. 0:18:28.320 --> 0:18:34.560 So can employers require their workers to get vaccinated as 0:18:34.600 --> 0:18:40.399 a general matter? The answers. Yet, Um, there's nothing particularly 0:18:40.440 --> 0:18:46.320 new about workplace mandates for vaccines. Let's say in the 0:18:46.359 --> 0:18:50.400 healthcare industry. Um, you know, some hospitals will require workers 0:18:50.440 --> 0:18:55.320 to get bactated against things like influenza, UH, meatles, months, rebella, 0:18:55.440 --> 0:19:00.000 these sort of things. Um. The situation is slightly different 0:19:00.160 --> 0:19:05.639 here with the COVID nineteen vaccine UM, in part because 0:19:05.680 --> 0:19:11.120 of how it was approved. The FDA used its Emergency 0:19:11.359 --> 0:19:17.040 Use Authorization UM authority to approve this in an expedited 0:19:17.080 --> 0:19:25.360 fashion um, which creates some uh complications that employment lawyers 0:19:25.400 --> 0:19:30.159 are pretty divided on whether it would give workers the 0:19:30.280 --> 0:19:33.879 right to refuse or not. Just for a second, turning 0:19:33.920 --> 0:19:38.240 to that emergency use authorization in that it states that 0:19:38.320 --> 0:19:42.480 recipients have a right to refuse the vaccine, the law 0:19:42.800 --> 0:19:47.639 is not very clear. The statute um that covers this 0:19:48.560 --> 0:19:52.520 is not very clear, and this is a an untested 0:19:52.560 --> 0:19:56.360 area in courts. UM. This is a unique situation here 0:19:56.400 --> 0:20:01.639 we have UM with a vaccine UM that is been 0:20:01.720 --> 0:20:05.359 authorized this way. The sources I've spoken to are not 0:20:05.440 --> 0:20:10.720 aware of another situation like this UM. The rules around this, 0:20:11.000 --> 0:20:16.840 the FDA indicates that individuals need to be notified they 0:20:16.960 --> 0:20:21.760 have an option to refuse. Whether that creates a statutory 0:20:21.920 --> 0:20:28.080 right to refuse that would sort of countermand in employer's 0:20:28.400 --> 0:20:32.439 right to mandate the vaccine is very unclear UM. But 0:20:32.720 --> 0:20:37.280 if we do see widespread mandate, it's something that's very 0:20:37.320 --> 0:20:39.920 likely to be tested in court. Some of the people 0:20:39.920 --> 0:20:43.199 that you've spoken to say that the best thing is 0:20:43.240 --> 0:20:48.959 not for employers to mandate a vaccination, but to encourage 0:20:49.359 --> 0:20:54.200 a vaccination in different ways. That's correct, That's correct. Even 0:20:54.240 --> 0:20:58.359 setting aside this sort of unclear legal issue about the 0:20:58.400 --> 0:21:01.720 emergency use off there is an action. UM. There are 0:21:01.760 --> 0:21:05.960 other legal issues and simply part practical issues when it 0:21:06.000 --> 0:21:10.040 comes to UM creating a rule that says, hey, you 0:21:10.119 --> 0:21:13.359 have to get vaccinated or you lose your job. Um. 0:21:13.400 --> 0:21:19.119 There are other exceptions when it comes to vaccines. Generally, UM, 0:21:19.359 --> 0:21:25.040 exceptions need to be made for people who have health problems. 0:21:25.160 --> 0:21:29.040 UM you know that if they're, for example, have compromised 0:21:29.040 --> 0:21:33.399 immune systems and their doctors saying they shouldn't take a vaccine. 0:21:34.080 --> 0:21:40.040 There's also uh some legal issues around religious objections to 0:21:40.520 --> 0:21:46.159 taking vaccines. UM. And again there's some practical implications that 0:21:46.280 --> 0:21:48.919 come with this sort of thing. You may have a 0:21:48.960 --> 0:21:53.720 workforce where um, you know, you have workers that are 0:21:53.800 --> 0:21:56.720 very valuable and that are difficult to replace. And if 0:21:56.760 --> 0:21:58.320 you have a rule that says you have to take 0:21:58.400 --> 0:22:02.639 the vaccine, uh, than an employer might be spaced with 0:22:02.720 --> 0:22:05.400 the situation where that act let go workers. They really 0:22:05.440 --> 0:22:09.160 don't want to let go of. UM. So you take 0:22:09.200 --> 0:22:12.159 all these things into consideration, you add into it's the 0:22:12.200 --> 0:22:17.480 complication of the emergency use authorization and uh yeah, that 0:22:17.680 --> 0:22:22.720 leads to attorneys to Council employers to suggest that encouraging 0:22:22.840 --> 0:22:27.040 and facilitating us in the vaccine is uh just overall 0:22:27.040 --> 0:22:30.320 the better ideas than mandating it. So even an at 0:22:30.359 --> 0:22:35.560 will employment situations, can workers raise specific objections to getting 0:22:35.600 --> 0:22:41.639 the vaccine, that's correct. The Americans with Disabilities Act provides 0:22:42.440 --> 0:22:48.399 the right to seek a health related exception, and Title 0:22:48.480 --> 0:22:53.320 seven of the Civil Rights Act, which Title seven covers 0:22:53.400 --> 0:22:59.679 workplace discrimination, including discrimination based on religion, that provides for 0:23:00.040 --> 0:23:04.560 the opportunity for people to seek a religious exception to 0:23:04.720 --> 0:23:08.399 affect the mandate. And it's notable that the way that 0:23:08.520 --> 0:23:14.600 the Equal Employment Opportunity Commission defines religion, it's not exclusively 0:23:15.560 --> 0:23:19.920 belief enough God or membership and established church. The way 0:23:19.920 --> 0:23:23.840 they define it is firmly and sincerely held moral or 0:23:23.880 --> 0:23:28.840 ethical belief. So again that can extend beyond traditional religions. 0:23:28.880 --> 0:23:33.680 So let's say a worker raises an objection to getting vaccinated. 0:23:33.880 --> 0:23:36.000 What does an employer have to do at that point? 0:23:36.560 --> 0:23:40.280 So at that point they need to consider the objection 0:23:40.760 --> 0:23:46.320 and they may need to provide an accommodation. But employers 0:23:46.400 --> 0:23:51.280 do have um some very friendly UM case laws from 0:23:51.280 --> 0:23:55.720 the U. S. Supreme Court that basically, if they can 0:23:55.800 --> 0:23:58.840 show that it would be an undue bird to allow 0:23:58.880 --> 0:24:03.400 a worker out of a vaccine mandate, then they can 0:24:03.440 --> 0:24:07.280 refuse that objection and the way to the screen court 0:24:07.320 --> 0:24:10.160 case law defines. It's a very low bar what's called 0:24:10.200 --> 0:24:13.280 in legal circles that dominimus standards, you know, so it's 0:24:13.560 --> 0:24:17.719 basically anything more than a trifling burden, uh, that can 0:24:17.760 --> 0:24:20.640 be considered an undue burden. So you have a lot 0:24:20.680 --> 0:24:25.520 of businesses, let's say, restaurants and stores, where there's interaction 0:24:25.680 --> 0:24:28.920 of the employees with the public. Are legal experts saying 0:24:28.960 --> 0:24:32.320 that that would be enough to raise an undue burden? 0:24:33.680 --> 0:24:36.400 These are going to be very case by case situation, 0:24:37.600 --> 0:24:41.520 very sack specific situation. It's hard to say exactly. There 0:24:41.560 --> 0:24:45.000 may be a situation in which, UM, the worker can 0:24:45.040 --> 0:24:48.960 be shifted to another position, uh, you know, back in 0:24:49.000 --> 0:24:51.800 the stockroom or something where they're not going to have 0:24:51.960 --> 0:24:56.000 that UM interaction with the public, and that could be 0:24:56.200 --> 0:24:59.880 a sort of a reasonable accommodation UM to the employer 0:25:00.440 --> 0:25:04.040 requirement to take a vaccine. UM. In another situation, it 0:25:04.080 --> 0:25:06.800 may be that the only job that that worker can do, 0:25:06.960 --> 0:25:10.000 it's going to be in the public, in contact of 0:25:10.040 --> 0:25:14.159 the public. And um that to give an exception, that 0:25:14.160 --> 0:25:16.520 would be an undue bird. So, like I said, it's 0:25:16.520 --> 0:25:18.800 always going to be a very case by case and 0:25:18.920 --> 0:25:21.600 very fact specific. Does it depend on the state that 0:25:21.600 --> 0:25:23.639 you're in. Is this a state law question or is 0:25:23.680 --> 0:25:29.280 this federal law question? Show The authority for business, a 0:25:29.320 --> 0:25:33.919 private business to impose something like a vaccine mandate flows 0:25:34.080 --> 0:25:39.680 primarily from what's known as the at will employment doctrine UH, 0:25:39.680 --> 0:25:43.919 and that is what's in effect in every state except 0:25:43.960 --> 0:25:49.040 for Montana. And that basically says that an employment relationship 0:25:49.160 --> 0:25:51.880 is presumed to be at will, which means an employer 0:25:52.000 --> 0:25:56.359 can fire a worker for any legal reason. So it 0:25:56.480 --> 0:26:00.840 can't be uh because you know they're of a certain 0:26:00.920 --> 0:26:04.520 racial group or a certain religion. You can't discriminate against somebody. 0:26:04.520 --> 0:26:08.280 That's that's not okay under the at will employment doctrine. 0:26:08.520 --> 0:26:11.520 But under the at will employment doctrine, you can impose 0:26:11.520 --> 0:26:16.160 a workplace rule and if a worker violates that rule, 0:26:17.000 --> 0:26:21.120 as long as you're enforcing that rule in a nondiscriminatory fashion, 0:26:21.640 --> 0:26:25.360 it can be fired for that. So in this instance, 0:26:26.080 --> 0:26:29.639 if Hope employer requires workers to take a vaccine and 0:26:29.680 --> 0:26:33.160