WEBVTT - Religious Rights Win Out in Clash With Gay Rights 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:09.200 --> 0:00:12.240 In a high profile clash of religious rights and gay 0:00:12.360 --> 0:00:16.200 rights at the Supreme Court, religious rights one out the 0:00:16.280 --> 0:00:19.840 courts sided with a Catholic foster care agency that won't 0:00:19.880 --> 0:00:23.760 place children with same sex couples because of its religious beliefs. 0:00:24.160 --> 0:00:28.000 In a unanimous decision, the Court ruled that Philadelphia violated 0:00:28.000 --> 0:00:31.480 the Constitution when it excluded the agency for the city's 0:00:31.520 --> 0:00:35.200 foster care program. During oral arguments, some of the conservative 0:00:35.240 --> 0:00:40.240 Justice Is question Philadelphia's policy, while others like Justice Is 0:00:40.320 --> 0:00:45.160 Samuel Alito and Brett Kavanaugh were upfront in their skepticism. 0:00:45.200 --> 0:00:49.800 It's not about ensuring that same sex couples in Philadelphia 0:00:49.880 --> 0:00:53.840 have the opportunity to be foster parents. It's the fact 0:00:53.840 --> 0:00:57.600 that the city can't stand the message and Catholic Social 0:00:57.640 --> 0:01:02.400 Services and the archdioces are sending by continuing to adhere 0:01:02.920 --> 0:01:07.840 to the old fashioned view about marriage. And what I 0:01:07.880 --> 0:01:14.480 fear here is that the absolutist and extreme position that 0:01:14.600 --> 0:01:18.399 you're articulating would require us to go back on the 0:01:18.440 --> 0:01:23.680 promise of respect for religious believers. Joining me as constitutional 0:01:23.760 --> 0:01:28.080 law professor Steve Sanders of Indiana University's Mara School of Law. 0:01:28.760 --> 0:01:32.600 Some people expected to split along ideological lines because of 0:01:32.680 --> 0:01:36.600 religious rights versus gay rights. Were you surprised by the 0:01:36.720 --> 0:01:40.280 unanimous ruling? Well, I wasn't surprised by the unanimity of 0:01:40.319 --> 0:01:43.520 the ruling once I read the opinion and realized just 0:01:43.720 --> 0:01:48.080 really how narrow this decision is. It really does not 0:01:48.240 --> 0:01:51.320 break any new ground. It is more or less a 0:01:51.480 --> 0:01:56.880 straightforward application of existing Supreme Court precedent. And frankly, if 0:01:57.000 --> 0:02:00.160 the City of Philadelphia decides to make a fairly minor 0:02:00.160 --> 0:02:03.720 modification of its policy, it's possible that it could go 0:02:03.840 --> 0:02:08.120 back to not doing business with Catholic social services. So 0:02:08.400 --> 0:02:11.160 the opinion seems to have been crafted to be as 0:02:11.240 --> 0:02:15.440 narrow as possible while being faithful to the courts precedents. 0:02:15.440 --> 0:02:18.160 That I think explains why it got the support of 0:02:18.440 --> 0:02:22.280 Justice Bryer, Justice so to Mayor and especially Justice Kagan, 0:02:22.360 --> 0:02:25.200 who I think would not have joined an opinion that 0:02:25.280 --> 0:02:30.320 would have resulted in what she saw was an inappropriate 0:02:30.400 --> 0:02:36.520 expansion of the rights of religious organizations. Like the Obamacare decision, 0:02:36.639 --> 0:02:39.440 This case was argued way back in November. Do you 0:02:39.480 --> 0:02:41.919 think this decision took so long to come down because 0:02:42.000 --> 0:02:46.760 the justices, or perhaps Chief Justice Roberts, was lobbying to 0:02:46.880 --> 0:02:50.760 have an unanimous opinion. I suspect the main thing that 0:02:50.960 --> 0:02:53.360 caused it to take so long to come down was 0:02:53.440 --> 0:02:56.720 the fact that Justice Alito wrote a treatise. You know, 0:02:56.840 --> 0:03:00.359 Justice Alito's concurrence is by far the long gust of 0:03:00.400 --> 0:03:03.400 all the opinions. It was joined by Justice Gore, such 0:03:03.440 --> 0:03:09.000 Injustice Thomas. Justice Alito makes a full throated argument in 0:03:09.160 --> 0:03:13.680 favor of a radical, really revolution in the Supreme Court's 0:03:13.720 --> 0:03:16.920 jurisprudence of the free exercise clause, and that would be 0:03:17.040 --> 0:03:19.839 to get rid of a thirty year old precedent called 0:03:19.880 --> 0:03:23.800 employment Division versus Smith. That was the larger question on 0:03:23.840 --> 0:03:26.840 the table in this case that the Court theoretically could 0:03:26.840 --> 0:03:29.560 have reached. The opinion of the Court said, you know, 0:03:29.639 --> 0:03:33.880 we don't need to reconsider a basic precedent in order 0:03:33.919 --> 0:03:37.280 to resolve this particular case. Is they's a Justice Alito, really, 0:03:37.440 --> 0:03:39.760 you know, just sort of wrote a brief in favor 0:03:39.800 --> 0:03:43.600 of overturning employment of Division versus Smith, something that even 0:03:43.720 --> 0:03:47.360 Justice Barrett basically said she wasn't interested in doing in 0:03:47.400 --> 0:03:52.400 this case. So Smith is a decision written by conservative 0:03:52.640 --> 0:03:56.360 icon Justice Anti and Scalia. That's been the target of 0:03:56.440 --> 0:04:01.760 religious rights groups recently. Why so, that's correct because employee 0:04:01.800 --> 0:04:05.520 division versus Smith basically said, if a law is neutral 0:04:05.640 --> 0:04:08.320 and if it's generally applicable, if it's just a law 0:04:08.400 --> 0:04:11.560 that sort of everybody has to obey, it doesn't target 0:04:11.640 --> 0:04:14.880 religion in one way or another, then even if that 0:04:15.000 --> 0:04:20.680 law impinges on your religious practice, basically too bad. A 0:04:20.760 --> 0:04:24.760 religious believer is not a law unto himself or herself. 0:04:25.040 --> 0:04:28.320 Justice Scalia rode, And so, if there is a truly 0:04:28.520 --> 0:04:32.560 neutral and generally applicable, let's say, gay rights law, the 0:04:32.640 --> 0:04:35.760 fact that a business owner or a social service agency 0:04:35.920 --> 0:04:39.479 believes that complying with that law violates its religious liberty 0:04:39.960 --> 0:04:43.040 is not good enough to kick it up to strict 0:04:43.120 --> 0:04:47.479 scrutiny to demand more of the government to justify that law. 0:04:47.920 --> 0:04:51.760 That's what Justice Alito and Justice Thomas and Justice Gorse 0:04:52.200 --> 0:04:54.200 would like to change. They would like to make it 0:04:54.279 --> 0:04:59.440 easier for religious believers to challenge any law that they 0:04:59.480 --> 0:05:03.320 believe in hinges on their religious exercise. What the court 0:05:03.400 --> 0:05:06.520 found in this case, in the Fulton case, was that 0:05:06.640 --> 0:05:10.800 the law was not actually generally applicable because it allowed 0:05:10.839 --> 0:05:15.600 for the possibility of exceptions to the non discrimination policy, 0:05:15.720 --> 0:05:18.000 and the fact the city wasn't willing to get Catholic 0:05:18.040 --> 0:05:22.440 Social Services an exception meant that Catholic Social Services wasn't 0:05:22.480 --> 0:05:25.880 being treated equally, So that did kick the level of 0:05:25.880 --> 0:05:29.520 scrutiny up to strict scrutiny because religion was being treated 0:05:29.880 --> 0:05:34.360 in a disadvantaged way. Basically, all the City of Philadelphia 0:05:34.400 --> 0:05:37.680 has to do is get rid of that provision that 0:05:37.839 --> 0:05:43.640 indicates that the Social Services administration can make exceptions. If 0:05:43.680 --> 0:05:47.479 it makes clear the non discrimination provision applies in a 0:05:47.600 --> 0:05:52.440 blanket way without any exceptions, then Catholic Social Service agency 0:05:52.440 --> 0:05:54.359 will have to choose whether to be bound by that 0:05:54.520 --> 0:05:57.240 or whether to not do business with the city. That's 0:05:57.279 --> 0:05:59.680 assuming the city decides to go ahead and do that. 0:06:00.000 --> 0:06:03.679 How political pressures and other things made forced the city 0:06:03.760 --> 0:06:06.960 to just sort of keep the status quo. As we 0:06:07.040 --> 0:06:11.120 discussed before, this sounds a lot like the Masterpiece Cake 0:06:11.200 --> 0:06:14.800 Shop case where a baker refused to make a wedding 0:06:14.839 --> 0:06:18.960 cake for same sex couple. There's Supreme Court there refused 0:06:19.000 --> 0:06:22.440 to decide the central issue. Did this case clear that 0:06:22.560 --> 0:06:27.000 up at all or is it still nebulous. It really didn't. 0:06:27.080 --> 0:06:30.719 This case is a little bit different because Masterpiece Cake Shop. 0:06:30.760 --> 0:06:35.200 In that case, the baker, recognizing that this old precedent 0:06:35.240 --> 0:06:38.880 of employment Division versus Smith made it difficult for him 0:06:38.920 --> 0:06:42.440 to succeed under the free exercise clause, try to free 0:06:42.440 --> 0:06:47.719 speech argument basically saying that his cakes represented expressive speech. 0:06:48.279 --> 0:06:50.840 That was quite a novel argument, and as you say, 0:06:50.880 --> 0:06:54.479 the court essentially didn't reach that. The Court decided it 0:06:54.520 --> 0:06:57.600 on a much narrower basis that this baker had been 0:06:58.040 --> 0:07:03.160 sort of mistreated during the adjudication process, that his religion 0:07:03.200 --> 0:07:06.280 had been disparaged, and government doesn't get to do that. 0:07:06.560 --> 0:07:10.320 But it dodged making a statement about the larger question 0:07:10.480 --> 0:07:14.800 of free speech law when it involves religious speech. This 0:07:14.840 --> 0:07:18.120 case is similar in fact, Justice Alito's opinion sort of 0:07:18.120 --> 0:07:23.400 analogized at Masterpiece, and that this decision Fulton was focused 0:07:23.400 --> 0:07:27.000 on the free exercise clause, not the free speech part 0:07:27.000 --> 0:07:29.840 of the First Amendment. It's different than Masterpiece in that way, 0:07:30.080 --> 0:07:32.960 but it's similar in the sense that this is really 0:07:33.000 --> 0:07:38.640 a decision that only applies to the specific circumstances involving 0:07:38.800 --> 0:07:42.960 this agency and the City of Philadelphia. It doesn't break 0:07:43.000 --> 0:07:46.480 any new ground. It doesn't expand the meaning or the 0:07:46.560 --> 0:07:49.840 scope of religious liberty beyond what the Supreme Court has 0:07:49.880 --> 0:07:53.720 already said in its precedence. Some are calling this a 0:07:53.840 --> 0:07:57.920 setback for gay rights. Do you agree? I think that's 0:07:57.960 --> 0:08:02.440 probably an overstatement. So one way of viewing the situation 0:08:02.600 --> 0:08:07.680 is that cities like Philadelphia and other government agencies should 0:08:07.720 --> 0:08:12.680 take a hard line and say any time any social 0:08:12.720 --> 0:08:17.880 services provider, any business, any private organization refuses to respect 0:08:17.920 --> 0:08:21.240 the rights of gay people, they must give up their 0:08:21.280 --> 0:08:24.280 religious beliefs and they must tow the line and and 0:08:24.480 --> 0:08:29.640 honor the government's nondiscrimination law. One thing that may have 0:08:29.680 --> 0:08:31.640 been going on in the background here that may have 0:08:31.680 --> 0:08:35.480 also been been persuasive to the justices is um no 0:08:35.679 --> 0:08:39.400 gay couple in Philadelphia had ever been turned away from 0:08:39.440 --> 0:08:42.240 the foster system. The way it worked was if Catholic 0:08:42.320 --> 0:08:46.760 Social Services decided they couldn't certify a married, same sex 0:08:46.840 --> 0:08:49.760 couple to be a foster parent, they simply referred the 0:08:49.760 --> 0:08:53.440 couple to one of twenty some other agencies in the 0:08:53.440 --> 0:08:57.319 city of Philadelphia that did the same work for the city. 0:08:57.800 --> 0:09:01.400 So I think what we see here is maybe an 0:09:01.480 --> 0:09:06.640 argument that look, no gay couple was actually discriminated against. 0:09:06.679 --> 0:09:10.320 Probably no same sex couple would ever be denied the 0:09:10.480 --> 0:09:13.800 right to foster a child. Um, there might just be 0:09:13.840 --> 0:09:17.240 a slight delay because they'd go to a different agency. 0:09:17.280 --> 0:09:20.959 But that allows Catholic Social Services to stand by its 0:09:21.160 --> 0:09:25.160 religious principles. So I guess I would disagree that this 0:09:25.240 --> 0:09:29.360 is a big, meaningful setback for gay rights. If you 0:09:29.480 --> 0:09:33.640 are subscribing to a sort of absolutist view of non 0:09:33.679 --> 0:09:37.840 discrimination laws, then maybe you don't like this decision. As 0:09:37.880 --> 0:09:42.240 a practical matter, this decision probably represents the kind of 0:09:42.280 --> 0:09:46.320 accommodation that even some liberal scholars have been calling for 0:09:46.559 --> 0:09:51.840 that allows religious organizations to be faithful to their principles 0:09:51.960 --> 0:09:57.920 without doing any actual practical harm to the ability of 0:09:58.280 --> 0:10:01.720 same sex couples to function in society and to be 0:10:01.760 --> 0:10:05.320 treated equally. But this is another in a long line 0:10:05.480 --> 0:10:08.880 of victories for religious groups of the Supreme Court. This 0:10:08.960 --> 0:10:12.200 is a court that has taken a very sympathetic and 0:10:12.280 --> 0:10:16.320 expansive view of religion. Has protected religion, whether it's a 0:10:16.480 --> 0:10:20.480 case challenging something as an establishment of religion, or religious 0:10:20.559 --> 0:10:24.320 organizations or religious people saying that a law impinges on 0:10:24.360 --> 0:10:28.679 their free exercise rights. I think your impression is not wrong. 0:10:29.320 --> 0:10:32.600 The law has evolved in recent years in a way 0:10:32.679 --> 0:10:38.160 that is increasingly um sympathetic to religion, increasingly insists that 0:10:38.240 --> 0:10:42.720 religion be treated the same as other kinds of functions 0:10:43.040 --> 0:10:47.320 and not be disadvantaged in some way. It's entirely likely 0:10:47.440 --> 0:10:50.280 that more cases like this are going to keep coming 0:10:50.320 --> 0:10:53.560 to the Supreme Court. This decision didn't break any new 0:10:53.640 --> 0:10:59.439 ground really in advancing the religious liberty rights of religious believers. 0:10:59.480 --> 0:11:03.520 It's simply found a way to fit this situation into 0:11:03.600 --> 0:11:07.720 the Court's existing law, which says religion can't be singled 0:11:07.720 --> 0:11:11.480 out for disadvantageous treatment, which is what the Court thought 0:11:11.559 --> 0:11:14.680 was going on here. But you know that this opinion 0:11:14.760 --> 0:11:18.880 also doesn't signal that the Court is closing the door 0:11:18.920 --> 0:11:24.480 to other theories and other claims of religious discrimination. So 0:11:24.640 --> 0:11:28.040 the decision announced the same day the Obamacare case is 0:11:28.320 --> 0:11:31.480 sort of largely seen as the Court saying, look, enough 0:11:31.520 --> 0:11:34.360 of this, We're just done with the challenges to Obamacare. 0:11:34.640 --> 0:11:37.840 This decision more or less maintains a sort of status quo. 0:11:38.280 --> 0:11:42.760 Thanks Steve. That's Steve Sanders of Indiana University's Mors School 0:11:42.800 --> 0:11:47.760 of Law. The effort to lift The Biden administration's moratorium 0:11:47.840 --> 0:11:50.840 on federal lease sales got a surprise win in federal 0:11:50.880 --> 0:11:54.720 district court. On Tuesday, a federal judge in Louisiana granted 0:11:54.720 --> 0:11:59.320 a preliminary injunction lifting the administration's moratorium on new lease 0:11:59.360 --> 0:12:03.040 sales for oil and gas development on federal lands. Joining 0:12:03.040 --> 0:12:06.240 me is Brandon Barnes. Joining me is Brandon Barnes, Bloomberg 0:12:06.280 --> 0:12:10.880 Intelligence senior litigation analyst. So Brandon tell us about this decision. 0:12:11.920 --> 0:12:15.280 We had an interesting decision coming out of the Louisiana 0:12:15.480 --> 0:12:19.720 Federal court this week, and the judge put a preliminary 0:12:19.720 --> 0:12:24.040 in junction in place, granting a motion request from thirteen 0:12:24.040 --> 0:12:27.959 different states that had basically asked the court to put 0:12:28.000 --> 0:12:32.680 on hold the hold that the President Biden's administration put 0:12:32.679 --> 0:12:36.520 in place with respect to the federal government holding oil 0:12:36.559 --> 0:12:41.000 and gas lease sales, which is basically property that the 0:12:41.160 --> 0:12:45.319 federal government owns or holds that they then leased back 0:12:45.400 --> 0:12:48.120 out for oil and gas development like Gulf of Mexico 0:12:48.360 --> 0:12:51.640 or cocaine lead in Alaska, or on shore for someam 0:12:51.679 --> 0:12:55.559 areas like the Permian Basin in New Mexico. The judge 0:12:55.600 --> 0:12:59.000 decides there'd be irreparable harm. How so isn't it just 0:12:59.200 --> 0:13:03.920 money involved? Well, Uh, economic harm can be one of 0:13:03.920 --> 0:13:09.040 the factors that goes into the irreparable harm calculus for 0:13:09.280 --> 0:13:12.839 preliminary junctions. We've seen it in other cases here. Since 0:13:12.840 --> 0:13:16.680 you had the Stewards being the thirteen s case, the 0:13:16.679 --> 0:13:19.240 plaintiffs for these thirteen states, part of their standing, part 0:13:19.280 --> 0:13:22.320 of their ability to bring this claim revolved around the 0:13:22.360 --> 0:13:26.880 fact that they garner a significant amount of money from 0:13:27.080 --> 0:13:30.720 these federal oil and gas leases. They have a there's 0:13:30.720 --> 0:13:33.280 a sharing agreement for some of that revenue, there's royalties 0:13:33.320 --> 0:13:36.280 involved for them, so it's a significant part of their 0:13:36.360 --> 0:13:39.960 business at the state level in their budgeting process. But 0:13:40.040 --> 0:13:42.440 also the court took a new account of a fair 0:13:42.440 --> 0:13:44.760 amount of you know this idea that there would be 0:13:44.840 --> 0:13:47.040 job losses at some point and that would impact the 0:13:47.080 --> 0:13:50.920 states as well. So what is the Biden administration doing? Now? 0:13:51.160 --> 0:13:55.000 This isn't about saying no, no more leases here. This 0:13:55.080 --> 0:13:59.320 is about wait and see, let's let's figure this out. Yeah, 0:13:59.360 --> 0:14:02.920 it's been a pretty common tactic for presidents over the years. 0:14:03.559 --> 0:14:06.360 Most presidents have done it with different programs where and 0:14:06.480 --> 0:14:09.120 politically it's it's you know, a smart middle ground, because 0:14:09.200 --> 0:14:10.480 what you do is you come in and you say, 0:14:10.520 --> 0:14:12.840 wait a second, we need to take a look. We 0:14:12.880 --> 0:14:14.640 need to take a look at this. Do our study, 0:14:15.320 --> 0:14:18.000 check it out. Make sure that you know we're appropriately 0:14:18.040 --> 0:14:21.360 in this case protecting all the people. Were getting the 0:14:21.400 --> 0:14:24.200 amount of money that the people deserve out of these 0:14:24.240 --> 0:14:27.160 private companies who were doing this development, and so we'll 0:14:27.160 --> 0:14:30.560 do a review. The review process has been going on 0:14:30.760 --> 0:14:34.360 since essentially the decuative Order came out in January this year, 0:14:34.960 --> 0:14:38.160 and it doesn't really have a set end time, and 0:14:38.320 --> 0:14:40.960 I think that's part of the problem. Not explicitly, but 0:14:41.120 --> 0:14:44.960 certainly the oil and gas companies and the States are 0:14:45.520 --> 0:14:47.760 looking ahead and thinking, well, that's going to present a 0:14:47.760 --> 0:14:50.160 major challenge later on once the inventory starts to draw 0:14:50.240 --> 0:14:52.840 down in terms of new leases and new properties. But 0:14:53.040 --> 0:14:56.480 right now, they haven't suffered any harm at this point. 0:14:57.360 --> 0:14:59.920 You wouldn't think so from the company perspective. A lot 0:15:00.000 --> 0:15:02.600 of the companies opted to start to bulk up on 0:15:03.000 --> 0:15:06.600 the leases and permits before the Biden administration came in, 0:15:07.000 --> 0:15:11.240 especially towards the end of last year. As you know, 0:15:11.240 --> 0:15:14.000 President Biden was making his way around the campaign trail 0:15:14.000 --> 0:15:15.920 and making promises that we were going to put a 0:15:15.920 --> 0:15:18.840 moratorium in place or take another look at this, especially 0:15:18.920 --> 0:15:22.880 with respect to the horizontal drilling and fracking. So there's 0:15:23.000 --> 0:15:26.240 a backlog. I think that the government in their similar 0:15:26.240 --> 0:15:30.720 filings reported that the backlog is seventy permits to drill, 0:15:30.760 --> 0:15:33.640 not just leases, but actually approved permits to drill. Now 0:15:33.680 --> 0:15:38.440 that's not abnormal given these programs that the drillers are 0:15:38.440 --> 0:15:40.880 putting in place last for a certain period of time, 0:15:40.920 --> 0:15:44.520 because you need to have a good pipeline of wells 0:15:44.680 --> 0:15:49.160 to drill so that as your production declines on your 0:15:49.160 --> 0:15:52.800 current wells, you have the other ones coming online, particularly 0:15:52.840 --> 0:15:56.000 for horizontal drilling, where you can extend those laterals further 0:15:56.080 --> 0:15:59.360 into contiguous properties that maybe you didn't have before, and 0:15:59.440 --> 0:16:02.400 that helps sort of smooth out the economics of drilling 0:16:02.400 --> 0:16:06.080 in a certain area. The royalty rates for drilling have 0:16:06.200 --> 0:16:09.280 been the same for a century, so the Biden administration 0:16:09.360 --> 0:16:12.560 might think about raising them. That's certainly on the table, 0:16:12.880 --> 0:16:15.600 I think, particularly Interior has made some of those statements. 0:16:15.760 --> 0:16:19.760 That's an easy middle path to discuss what's going on here. 0:16:19.960 --> 0:16:22.480 You know, the other ideas that maybe they need to 0:16:22.520 --> 0:16:25.560 tighten up from the environmental review process they're doing for 0:16:25.640 --> 0:16:29.120 these is they're pretty boilerplate, and they've been hammered in 0:16:29.160 --> 0:16:31.880 the courts recently in a couple of different cases around 0:16:31.920 --> 0:16:35.600 prior leases last year, and so the ideas maybe they 0:16:35.680 --> 0:16:39.560 might try to tighten up on climate change analysis contribution 0:16:39.600 --> 0:16:42.840 of greenhouse gasses from from these activities in addition to 0:16:42.920 --> 0:16:45.720 looking at the royalties. But the judge based it on 0:16:46.040 --> 0:16:50.760 that the Biden administration needs congressional approval to stop and 0:16:50.800 --> 0:16:54.600 think about this. That's right. So the real crux of 0:16:54.680 --> 0:16:58.880 the prelimary injunction opinion revolved around the fact that the 0:16:59.080 --> 0:17:03.000 Outer Continental Shelf Act, which is what essentially allows the 0:17:03.000 --> 0:17:07.399 federal government to run these offshore acreage s lease sales, 0:17:08.040 --> 0:17:10.840 and the Mineral Leasing Act, which is the onshore version 0:17:10.880 --> 0:17:17.240 of that, both of them have specific statutory requirements that, Okay, 0:17:17.320 --> 0:17:20.040 for Outer Continental Shelf Act, you have to do a 0:17:20.080 --> 0:17:23.200 five year plan. That five year plan lays out exactly 0:17:23.200 --> 0:17:25.679 how many lease sales you're going to have. Once that 0:17:25.880 --> 0:17:30.000 is a final rule from Interior, then you run those leases. 0:17:30.040 --> 0:17:32.720 And then Mineral Leasing Act similarly says you have to 0:17:32.840 --> 0:17:37.359 run at least quarterly lease sales and every year and 0:17:37.359 --> 0:17:40.679 and go forward in that way. The allegation which the 0:17:40.680 --> 0:17:43.959 court grabbed onto was, you know, the Biden administration, as 0:17:44.000 --> 0:17:46.639 the president, the executive branch doesn't have the power to 0:17:46.640 --> 0:17:48.840 come in and say we're stopping that because those are 0:17:48.880 --> 0:17:51.640 coming out of the legislative branch. That would be Congress, 0:17:51.680 --> 0:17:55.000 who has the power to do that and therefore put 0:17:55.040 --> 0:17:58.399 the pulinary injunction in place. Now, so this is a 0:17:58.520 --> 0:18:03.200 judge in Louisiana issuing a decision that covers the entire 0:18:03.320 --> 0:18:08.679 United States and nationwide injunction from Louisiana. That's right, you know, 0:18:08.760 --> 0:18:12.280 it's um as justice courts such as called them cosmic 0:18:12.320 --> 0:18:16.399 injunctions because they apply to the entire universe. It's been 0:18:16.440 --> 0:18:19.439 a practice that got a lot more attention under President 0:18:19.440 --> 0:18:24.119 Trump's administration, particularly revolving around to the immigration changes that 0:18:24.200 --> 0:18:26.359 he was trying to put in place, different policies at 0:18:26.400 --> 0:18:30.840 the border, and the use of them has increased over time. 0:18:31.280 --> 0:18:33.479 The ideas there's that district court, which is your lowest 0:18:33.520 --> 0:18:37.760 federal court, putting something in place that impacts the entire country. 0:18:38.160 --> 0:18:41.440 It's an interesting one. I think at a certain point, 0:18:42.160 --> 0:18:43.880 you know, you're just reading long of your articles because 0:18:43.880 --> 0:18:48.520 it becomes academic. In practice, these are allowed, and you 0:18:48.560 --> 0:18:51.199 can have competing ones because there's a sort of a 0:18:51.240 --> 0:18:56.879 coequal jurisdiction across different district courts, and only up until 0:18:56.920 --> 0:18:59.320 such time as you have a more supreme court, which 0:18:59.320 --> 0:19:01.200 would be like an Hills Court for the next level 0:19:01.200 --> 0:19:03.840 of obviously the U. S. Supreme Court making a different 0:19:03.840 --> 0:19:06.840 decision or confirming that decision. Do you then get into 0:19:06.880 --> 0:19:12.120 a place where you might have multiple jurisdictions agreeing. So 0:19:12.200 --> 0:19:16.720 it's allowed. Uh. Some people don't like it. Others look 0:19:16.760 --> 0:19:19.119 at it more as as a legal academic issue that 0:19:19.160 --> 0:19:22.320 can be discussed at, you know, in ivory toilers. So 0:19:22.840 --> 0:19:26.199 either way, we have an injunction in place, and whatever 0:19:26.280 --> 0:19:28.840 happens in other courts, which there's another court considering the 0:19:28.840 --> 0:19:31.720 same issue in Wyoming right now, it doesn't really matter 0:19:32.080 --> 0:19:35.480 until we get to the next level. So the Interior 0:19:35.520 --> 0:19:39.640 Department said, we're reviewing the judge's opinion and will comply 0:19:39.760 --> 0:19:44.879 with the decision. Does that mean they will not appeal? Uh? 0:19:44.920 --> 0:19:47.680 I doubt that. I think that they will appeal. Certainly 0:19:47.720 --> 0:19:50.520 they're people who would be happy to appeal for them 0:19:50.560 --> 0:19:53.960 with an interest in this. As there were multiple interveneers 0:19:54.119 --> 0:19:58.040 at the district court level. From the environmental interest side, 0:19:58.160 --> 0:20:00.679 I would expect them to appeal. You want to preserve 0:20:00.680 --> 0:20:03.760 your rights going forward anyway. But in one sense, you 0:20:03.800 --> 0:20:06.320 know you're appealing a preliminary injunction, so the case is 0:20:06.359 --> 0:20:08.760 still alive at the district court level anyway, so you 0:20:08.840 --> 0:20:11.280 can do it pretty quickly. But you know, they do 0:20:11.400 --> 0:20:14.600 have a duty to abide by what the court said 0:20:14.680 --> 0:20:17.320 in the in the very near term. And the fifth 0:20:17.320 --> 0:20:21.680 Circuit that they'll be appealing to is the most conservative 0:20:22.160 --> 0:20:25.800 circuit in the country. Do you have any inkling as 0:20:25.840 --> 0:20:29.520 to what it might do. Well. It's interesting because you know, 0:20:29.560 --> 0:20:34.040 I didn't credit these preliminary injunction motions with much chance 0:20:34.080 --> 0:20:38.040 of success, largely because it's it's very difficult to convince 0:20:38.040 --> 0:20:43.439 a court that a temporary by its definition, a temporary 0:20:43.760 --> 0:20:48.359 hold or moratorium for further study, is something that's final 0:20:48.520 --> 0:20:52.320 enough for court to grab onto. But they did that 0:20:52.440 --> 0:20:54.760 here and and the court. You can tell that the 0:20:54.760 --> 0:20:58.040 court knows that this decision was on the edge because 0:20:58.560 --> 0:21:01.120 you don't normally see a four you for page opinion 0:21:01.200 --> 0:21:05.560 on a preliminary injunction motion. And the court spent a 0:21:05.560 --> 0:21:08.040 lot of times justifying the idea that this is a 0:21:08.080 --> 0:21:12.000 final agency action, and there's plenty of support for that, 0:21:12.119 --> 0:21:14.240 and the court went through a full page of citation 0:21:14.400 --> 0:21:17.159 to show that. But there's certainly supporting the other side. 0:21:17.359 --> 0:21:20.160 So I think that this is the case where you've 0:21:20.200 --> 0:21:24.640 got difficulty at both prongs of the preliminary injunction requirements 0:21:24.760 --> 0:21:27.400 and it's a close call. Now, usually the close call 0:21:27.520 --> 0:21:32.240 does go to the court, so maybe in this instance 0:21:32.359 --> 0:21:35.920 the Fifth Circuit would agree. But I don't think that 0:21:36.200 --> 0:21:41.720 the preliminary injunction itself is probably that impactful because this 0:21:41.800 --> 0:21:43.720 is going to have to also play out at the 0:21:43.760 --> 0:21:46.399 district court level on the merits part of the case, 0:21:47.240 --> 0:21:49.440 and by the time we get through that, I fully 0:21:49.440 --> 0:21:51.800 would expect that the bid administration would already have a 0:21:51.880 --> 0:21:57.000 solution to this out, whether that's holding those least sales 0:21:57.080 --> 0:22:01.280 while working on new rules or you know, going through 0:22:01.560 --> 0:22:04.719 some other avenue. Um. I think that the timing is 0:22:05.080 --> 0:22:08.919 it doesn't necessarily force easily sales to happen right away. 0:22:09.280 --> 0:22:12.400 Thanks for being on the show, Brandon. That's Brandon Barnes, 0:22:12.520 --> 0:22:16.439 Bloomberg Intelligence Senior litigation analyst. You can read more of 0:22:16.480 --> 0:22:18.920 Brandon's analysis by going to be I Go on the 0:22:18.960 --> 0:22:24.119 Bloomberg terminal. Pro Football Hall of Famer Shannon Sharp was 0:22:24.160 --> 0:22:28.840 discussing the trade rumors around then Atlanta Falcon starwide receiver 0:22:29.000 --> 0:22:33.320 Julio Jones during his Fox Sports show Undisputed, when Sharp 0:22:33.400 --> 0:22:36.960 decided to call Jones and ask him live on the 0:22:37.040 --> 0:22:40.480 air what we call it as well? Ask him, yes, 0:22:40.760 --> 0:22:48.960 I do right now? Are we calling? Okay? Well, really 0:22:49.000 --> 0:22:52.000 hope he answers here, Julio, have the guts to pick 0:22:52.080 --> 0:22:58.800 up the phone. Yeah, all right, Julio, Lou you want 0:22:58.800 --> 0:23:00.920 to go to the Cowboys, Julio? Or you want to 0:23:00.920 --> 0:23:13.320 stay in Atlanta. Jones was apparently unaware that the call 0:23:13.520 --> 0:23:17.680 and his revelations were being aired live on TV. Now 0:23:17.720 --> 0:23:22.320 no lawsuits have been filed, but theoretically speaking, good Sharp 0:23:22.480 --> 0:23:27.360 or Fox Sports be sued. This week, Massachusetts Supreme Judicial 0:23:27.440 --> 0:23:31.240 Court upheld the dismissal of Summerville Mayor Joe kurt Atoni's 0:23:31.320 --> 0:23:35.000 lawsuit against bar Stool for recording and publishing a phone 0:23:35.000 --> 0:23:38.439 interview because of his consent. So a lot depends on 0:23:38.600 --> 0:23:41.240 what states rules are applied in the case of a 0:23:41.280 --> 0:23:45.240 recorded conversation. Here to discuss the legal implications of an 0:23:45.280 --> 0:23:49.480 ambush interview is Daniel Novak, a publishing industry attorney and 0:23:49.640 --> 0:23:52.679 chair of the New York State Bar Association Committee on 0:23:52.800 --> 0:23:56.800 Media Law. Let's get some basics first. The rule in 0:23:56.920 --> 0:24:00.640 most states is that only one party has to consent 0:24:00.760 --> 0:24:03.480 to a recording. So does that basically mean you can 0:24:03.560 --> 0:24:07.440 tape any conversation if you're in one of those states. Yes, 0:24:07.520 --> 0:24:10.439 and no. If you are in the majority of states 0:24:10.440 --> 0:24:12.840 that we call one party consent, as long as you 0:24:12.880 --> 0:24:16.680 are a party to the conversation, you should be okay. 0:24:16.720 --> 0:24:18.879 But where it gets fuzzy can be where you're not 0:24:18.960 --> 0:24:22.200 a party, and so being one party or two party 0:24:22.240 --> 0:24:25.400 consent states are sort of irrelevant if you're not yourself 0:24:25.520 --> 0:24:29.320 the person that's engaged in the conversation. Now, most jurisdiction 0:24:29.320 --> 0:24:31.720 would just look at whether or not the people that 0:24:31.760 --> 0:24:35.280 were having the conversation had a realistic expectation that it 0:24:35.320 --> 0:24:37.719 would be between them. And so if you're sitting at 0:24:37.720 --> 0:24:40.879 a restaurant, you know, crowd a restaurant next to a 0:24:40.960 --> 0:24:43.439 couple and they're talking and you know everything is with 0:24:43.480 --> 0:24:46.520 an ear shot, it could be okay to record potentially 0:24:46.560 --> 0:24:48.800 because you would say that anyone in that room could 0:24:48.800 --> 0:24:51.320 have heard that. So it gets a little tricky when 0:24:51.359 --> 0:24:53.720 you're not a party, but if you are, then it 0:24:53.800 --> 0:24:58.600 becomes relatively straightforward. But on disputedy is taped in California, 0:24:58.800 --> 0:25:01.720 which is a two party consent state, tell us about 0:25:01.760 --> 0:25:05.719 the law there. So California, despite being very media friendly 0:25:05.760 --> 0:25:08.240 in many respects, they have one of the best what 0:25:08.320 --> 0:25:11.600 we call anti flap laws that discourages plaintiffs from bringing 0:25:11.640 --> 0:25:15.440