WEBVTT - Setbacks for Environment at SCOTUS 0:00:02.759 --> 0:00:08.640 This is Bloomberg Law with June Grosseo from Bloomberg Radio. 0:00:08.760 --> 0:00:11.600 The Supreme Court has not been what you'd call a 0:00:11.680 --> 0:00:16.160 friend of the environment with its trend of weakening federal protections, 0:00:16.520 --> 0:00:19.439 and this term was no different, with the Court delivering 0:00:19.560 --> 0:00:24.400 several setbacks to environmental protections. Joining me is environmental law 0:00:24.440 --> 0:00:27.520 expert Pat Parento, a professor at the Vermont Law and 0:00:27.640 --> 0:00:32.800 Graduate School. Pat this last term, how much damage did 0:00:32.800 --> 0:00:37.479 the Supreme Court do overall to environmental protections? I mean, 0:00:37.560 --> 0:00:38.800 let's say scale a one to ten. 0:00:39.520 --> 0:00:41.680 Oh, on a scale of one to ten, I would 0:00:41.680 --> 0:00:45.360 say it was a seven. There wasn't any really blockbuster, 0:00:45.960 --> 0:00:50.240 one single blockbuster decision. There were a series of decisions 0:00:50.240 --> 0:00:53.480 that went against the environment, you could say, certainly went 0:00:53.520 --> 0:00:58.120 against the parties that were advocating for environmental protection. On 0:00:58.160 --> 0:01:02.200 the other hand, you know, on climate the Supreme Court 0:01:02.320 --> 0:01:05.679 actually did the right thing in denying review in the 0:01:05.720 --> 0:01:11.039 Honolulu case and in two other cases that the Red 0:01:11.080 --> 0:01:14.680 state attorneys general had brought trying to get the Supreme 0:01:14.720 --> 0:01:19.040 Court to take what's called original jurisdiction. Over All of 0:01:19.080 --> 0:01:22.600 these forty plus climate cases filed by the states and 0:01:22.680 --> 0:01:25.440 cities and so forth. So, you know, I mean it's 0:01:25.440 --> 0:01:28.680 a mixed bag. It's generally bad for the environment, but 0:01:28.720 --> 0:01:31.960 there were a few, i guess, small scale victories. 0:01:32.440 --> 0:01:36.560 So perhaps the biggest environmental decision of the term was 0:01:36.760 --> 0:01:41.200 one that involved a proposed Utah railway that's going to 0:01:41.200 --> 0:01:43.160 transport crude oil. 0:01:43.680 --> 0:01:48.640 Right in the Uinta Basin of Utah. And this is 0:01:48.720 --> 0:01:51.480 heavy crude. It's a form of crude that has not 0:01:51.640 --> 0:01:56.600 been actually extracted. And this rail line, approved by the 0:01:56.640 --> 0:02:01.280 Surface Transportation Board, was about an eighty plus mile rail 0:02:01.360 --> 0:02:05.200 line totally within Utah, but it was designed to transport 0:02:05.280 --> 0:02:07.720 this oil east and all the way to the Gulf 0:02:07.760 --> 0:02:10.800 Coast to be refined and then either exported or burned 0:02:10.919 --> 0:02:14.120 in the United States. And you know, this kind of 0:02:14.160 --> 0:02:18.200 heavy crewd is some of the worst climate damaging fuels 0:02:18.200 --> 0:02:21.440 you could have. And the question was, you know, when 0:02:21.480 --> 0:02:25.760 the Service Transportation Board is considering the impacts under the 0:02:25.840 --> 0:02:29.280 National Environmental Policy Actor, they have to look at upstream 0:02:29.360 --> 0:02:32.800 impacts from the extraction the drilling, and do they also 0:02:32.880 --> 0:02:36.320 have to look at downstream impacts of burning the oil 0:02:36.360 --> 0:02:39.840 in the refineries, in the air pollution impacts that that creates. 0:02:40.280 --> 0:02:43.560 The Service Transportation Board under Biden did look at those things, 0:02:43.600 --> 0:02:46.440 the upstream downstream effects, but they did so in a 0:02:46.480 --> 0:02:49.320 way that sort of acknowledged we don't as the Surface 0:02:49.360 --> 0:02:53.680 Transportation Board, have any control over the extraction the drilling. 0:02:53.720 --> 0:02:56.600 We don't regulate that, and we don't regulate the refineries. 0:02:57.000 --> 0:02:59.800 So they did a sort of back of the envelope 0:03:00.040 --> 0:03:02.680 and of calculation of what the impacts would be. The 0:03:02.760 --> 0:03:05.760 DC Circuit said, that's not good enough. Under NEVA, you 0:03:05.880 --> 0:03:09.360 have to take a harder look at these indirect effects. 0:03:09.680 --> 0:03:13.919 That has been the law generally UNDERNATHA for you know, forever, 0:03:14.040 --> 0:03:17.240 since NEPA was enacted in nineteen seventy. So there was 0:03:17.280 --> 0:03:19.480 no big surprise, I think among those of us who 0:03:19.560 --> 0:03:22.400 follow these cases that the Supreme Court was going to 0:03:22.440 --> 0:03:25.480 overturn the DC Circuit. But the way it did it, 0:03:25.560 --> 0:03:29.840 the Kavanaugh opinion, is what's troubling. It basically said, for 0:03:30.320 --> 0:03:34.280 indirect effects that are remote in space and time and 0:03:34.440 --> 0:03:40.160 over which the agency does not have regulatory authority, those 0:03:40.240 --> 0:03:43.560 kinds of impacts don't have to be considered, and the 0:03:43.640 --> 0:03:48.000 Court should defer to agencies making those kinds of factual 0:03:48.080 --> 0:03:52.280 determination and also legal determinations on whether they have authority. 0:03:52.600 --> 0:03:55.560 And then in addition, Kavanaugh said, and oh, by the way, 0:03:56.000 --> 0:03:59.400 since NEPA is just quote, a procedural statute, which is 0:03:59.480 --> 0:04:02.960 true an important one. But it's certainly true that it's procedural. 0:04:03.000 --> 0:04:07.000 It doesn't require a particular decision to be made, but 0:04:07.080 --> 0:04:10.320 it requires that you disclose what the foreseeable impacts of 0:04:10.360 --> 0:04:13.680 your decision is. But because it's just a procedural statute, 0:04:13.720 --> 0:04:16.680 of course, shouldn't be too quick to either enjoin an 0:04:16.760 --> 0:04:21.120 agency from proceeding even where there have been violations of NEPA, 0:04:21.320 --> 0:04:26.560 and should not immediately vacate underlying decisions that the agency 0:04:26.560 --> 0:04:29.279 has made, like issuing a license or a permit, or 0:04:29.320 --> 0:04:32.240 making a grant for a project. And so you know, 0:04:32.360 --> 0:04:35.800 that was a gratuitous slap at the law and a 0:04:35.920 --> 0:04:38.360 signal to the lower courts you don't have to take 0:04:38.440 --> 0:04:41.600 NEPA all that seriously. Violations of NEPA. You can look 0:04:41.680 --> 0:04:44.040 at it and decide, well, it's just not that serious. 0:04:44.480 --> 0:04:47.040 Nothing is really going to be changed when we disclose 0:04:47.160 --> 0:04:50.839 these impacts, So let it go. That was very troubling, 0:04:51.480 --> 0:04:52.000 and so. 0:04:52.240 --> 0:04:57.839 It was eight to zero because Justice course recused himself. 0:04:58.000 --> 0:05:00.440 I mean, why did the three liberals con occur in. 0:05:00.480 --> 0:05:04.919 That they concurred in the judgment, but not in Kavanaugh's 0:05:04.920 --> 0:05:09.280 weeping opinion, both on you know, agencies just don't ever 0:05:09.400 --> 0:05:12.960 have to consider these indirect effects that are quote remote 0:05:12.960 --> 0:05:17.960 in time and space. The three liberal justices basically said, 0:05:18.000 --> 0:05:19.640 you don't have to go that far. You know. The 0:05:19.920 --> 0:05:23.120 only question is did the dec Circuit court go too far? 0:05:23.480 --> 0:05:25.680 And the answer to that is yeah, they did. They 0:05:25.680 --> 0:05:28.880 were demanding too much in this particular case where the 0:05:28.920 --> 0:05:32.640 agency had done some consideration and they were just demanding 0:05:32.720 --> 0:05:35.640 more and that was a bridge too far, and certainly 0:05:35.680 --> 0:05:39.159 not agreeing with Kavanaugh's comment about, you know, don't take 0:05:39.320 --> 0:05:43.720 NEPA violation seriously. So that's why the three liberals concurred 0:05:43.720 --> 0:05:47.839 in the judgment, but not in the rationale that Kavanaugh advanced. 0:05:48.200 --> 0:05:51.000 So does this make clear what the lower courts have 0:05:51.080 --> 0:05:51.440 to do? 0:05:52.320 --> 0:05:56.039 No? No, I mean, this is yet another example of 0:05:56.120 --> 0:06:00.680 the Supreme Court thinking it's clarifying matters. It's not. And 0:06:00.760 --> 0:06:03.240 you know, it's going to be up to individual judges 0:06:03.400 --> 0:06:06.160 across the country. There are over seven hundred federal judges 0:06:06.200 --> 0:06:09.640 and more on the way, more Trump appointees on the way, 0:06:10.160 --> 0:06:13.200 and you know, Kavanaugh was clear and saying, it's up 0:06:13.240 --> 0:06:17.159 to the courts that are reviewing these actions. You should 0:06:17.200 --> 0:06:22.880 defer to an agency's factual determinations that these impacts are 0:06:22.880 --> 0:06:26.680 remote in time and space. But you don't necessarily have 0:06:26.880 --> 0:06:30.520 to agree with the agency if there's reason to believe 0:06:30.560 --> 0:06:34.279 the agency, you know, either has authority to do more 0:06:34.600 --> 0:06:37.800 about these impacts or that these impacts are really not 0:06:37.960 --> 0:06:41.760 that remote in time and space. You can imagine, you know, 0:06:41.839 --> 0:06:46.880 all the different kinds of federal decisions that impact the environment, right. 0:06:46.920 --> 0:06:49.839 I mean, it's like there are hundreds of agencies of 0:06:49.880 --> 0:06:53.960 the federal government that have authority to approve or finance 0:06:54.040 --> 0:06:57.800 or whatever projects that impact the environment. So no, I 0:06:57.800 --> 0:07:01.039 mean a test like this where you should defer to 0:07:01.080 --> 0:07:04.200 the agency where it makes sense to defer to the 0:07:04.240 --> 0:07:07.840 agency that doesn't clarify very much. I think we can 0:07:07.920 --> 0:07:15.000 say for sure that conservative judges will now have more authority, 0:07:15.080 --> 0:07:20.240 if you will, and more inclination to approve and agencies, 0:07:20.360 --> 0:07:25.560 particularly right now under the Trump administration, approve agency determinations 0:07:25.560 --> 0:07:29.960 that they really can't consider these impacts they're too speculative. 0:07:30.360 --> 0:07:33.520 So in that sense, it is a signal to the 0:07:33.560 --> 0:07:36.600 courts to defer to the agencies when they say they 0:07:36.920 --> 0:07:40.240 can't figure out how to you know, consider these impacts 0:07:40.360 --> 0:07:42.560 or they don't know what they could do about them 0:07:42.600 --> 0:07:45.440 if they do consider them. But I still think there's 0:07:45.480 --> 0:07:48.520 going to be litigation. I know this because the public 0:07:48.600 --> 0:07:50.520 interest groups aren't just going to throw in the towel. 0:07:50.560 --> 0:07:54.160 They're going to keep testing, you know, the authority of 0:07:54.240 --> 0:07:59.240 agencies to disregard impacts that, again, they're foreseeable impacts. The 0:07:59.280 --> 0:08:02.680 court in the Utah case didn't say these weren't foreseeable. 0:08:03.120 --> 0:08:06.560 They just said, well, they're just too remote and they're 0:08:06.680 --> 0:08:10.040 impacts that the agency really can't do much about. So 0:08:10.080 --> 0:08:12.320 there's going to be arguments about that going forward. 0:08:12.840 --> 0:08:16.280 Let'ster the EPA. The Court has restricted the power of 0:08:16.400 --> 0:08:20.720 the EPA in several rulings over the last few years, 0:08:21.320 --> 0:08:23.600 and it lost again at the Court in a case 0:08:23.680 --> 0:08:26.680 where San Francisco was suing the agency. 0:08:27.640 --> 0:08:35.199 Right So, San Francisco sued EPA for requiring San Francisco 0:08:35.320 --> 0:08:38.880 to comply with water quality standards, which are set by 0:08:38.880 --> 0:08:42.640 the states but approved by EPA, and they are designed 0:08:42.679 --> 0:08:48.080 to protect beneficial uses of water fishing, swimming, drinking, boating, 0:08:48.160 --> 0:08:53.000 et cetera. And you know, San Francisco has combined to 0:08:53.160 --> 0:08:58.040 or overflows that discharged raw sewage into the Pacific Ocean 0:08:58.840 --> 0:09:02.000 and they affect beach. I mean, this is eecal coliform, 0:09:02.040 --> 0:09:05.240 bacteria and viruses. I mean, this is really bad stuff. 0:09:05.240 --> 0:09:10.120 It's not just unpleasant, right, it threatens public health. And 0:09:10.200 --> 0:09:13.319 so you know, IPA said, look, San Francisco, you've been 0:09:13.800 --> 0:09:16.360 working on this problem for years, but you're not getting 0:09:16.920 --> 0:09:19.199 where you need to go. You need to do more. 0:09:19.640 --> 0:09:22.319 You either need to separate your system, which is very 0:09:22.360 --> 0:09:25.880 expensive in the billions of dollars, and separate the storm 0:09:25.920 --> 0:09:28.559 water from the sewage system and then deal with the 0:09:28.600 --> 0:09:31.680 treatment problems of each one separately. You either need to 0:09:31.720 --> 0:09:33.800 do that or you need to come up with some 0:09:34.000 --> 0:09:38.200 other kinds of mechanisms that, you know, don't expose people 0:09:38.240 --> 0:09:41.280 that are swimming in the Pacific Ocean to getting disease. 0:09:41.679 --> 0:09:44.920 But they didn't say specifically, here isn't a blueprint for 0:09:45.000 --> 0:09:47.840 what you have to do. Alito wrote the opinion for 0:09:47.880 --> 0:09:50.280 the Supreme Court. He said, that's not good enough. You 0:09:50.400 --> 0:09:55.920 have to tell permittees like San Francisco and others industry, agriculture, 0:09:56.360 --> 0:10:00.440 wide variety. You know, of entities that discharge pollutants into 0:10:00.480 --> 0:10:03.040 the waters of the United States rivers and lakes and 0:10:03.040 --> 0:10:05.160 so forth. You can't just tell them, well, you have 0:10:05.240 --> 0:10:10.280 to comply with these so called end results water quality standards. 0:10:10.320 --> 0:10:15.240 And you know, in dissent, Justice Barrett Hooray for her 0:10:15.800 --> 0:10:20.480 joining with her sisters, the liberal sisters on the Supreme Court, said, 0:10:20.679 --> 0:10:22.960 you know, not only is that not what the Clean 0:10:23.000 --> 0:10:27.720 Water Act said, it's pretty explicit. It says other limitations 0:10:27.760 --> 0:10:31.520 required to protect water quality. Well, that's exactly what EBA 0:10:31.640 --> 0:10:35.760 did here, right. You use technology where you have technology, 0:10:36.120 --> 0:10:40.240 and you use numerical standards for individual pollutants when you 0:10:40.280 --> 0:10:43.440 can set those. But when you have something like a 0:10:43.480 --> 0:10:47.800 toxic soup coming out of a city's discharge, you know, 0:10:47.880 --> 0:10:51.160 those kinds of mechanisms don't work so well. So you're 0:10:51.160 --> 0:10:53.080 going to have to come up with something more creative 0:10:53.160 --> 0:10:57.320 than that to protect people and protect the water quality. 0:10:57.720 --> 0:11:01.120 And in addition, she said, it's not necessarily a great 0:11:01.160 --> 0:11:04.720 idea to have EPA dictating to cities and states what 0:11:04.800 --> 0:11:08.080 they have to do to comply with water quality standards. 0:11:08.160 --> 0:11:10.920 Why doesn't it make sense to say you have to 0:11:10.960 --> 0:11:14.720 do more to comply with these standards, you're violating them, 0:11:15.040 --> 0:11:18.280 but to give the states and cities some flexibility in 0:11:18.400 --> 0:11:20.880 how they would do it. You know, keep the pressure 0:11:21.000 --> 0:11:24.600 on the cities to comply with the Clean Water Act, 0:11:24.880 --> 0:11:28.920 but don't necessarily dictate precisely what's needed to do that. 0:11:29.320 --> 0:11:32.480 So that was the San Francisco case. It's interesting that 0:11:32.559 --> 0:11:37.120 the Supreme Court also denied review in another case called 0:11:37.120 --> 0:11:40.360 the Puget Sound sound Keeper case, and. 0:11:40.280 --> 0:11:42.640 The issue there was similar to the issue in the 0:11:42.679 --> 0:11:44.080 San Francisco. 0:11:43.600 --> 0:11:47.280 Case, and that issue was whether or not a state 0:11:47.320 --> 0:11:52.080 could impose a condition in a wastewater permit that was 0:11:52.120 --> 0:11:55.160 beyond the scope of the Clean Water Act, and the 0:11:55.280 --> 0:11:58.840 Ninth Circuit ruled that, well, that's an interesting question. But 0:11:59.480 --> 0:12:03.720 the point is that in this case, the entity that's 0:12:03.800 --> 0:12:07.640 required to comply with the law didn't challenge the permit 0:12:07.720 --> 0:12:11.080 condition when they could have, and so therefore the court 0:12:11.120 --> 0:12:15.160 applied the doctrine of collateral estoppel and said, you're a 0:12:15.280 --> 0:12:20.040 stop from complaining about something you could have complained about earlier, 0:12:20.480 --> 0:12:22.720 and now you can't raise it for the first time 0:12:22.760 --> 0:12:26.160 in an enforcement action. And the point here is the 0:12:26.200 --> 0:12:30.439 Supreme Court denied review in the Puget sound Keeper case. 0:12:30.480 --> 0:12:32.920 I would have bet they would have taken that case 0:12:33.480 --> 0:12:36.320 because of the exceeding the scope of the Clean Water 0:12:36.440 --> 0:12:40.240 Act issue, but they didn't. So that raises the question, 0:12:40.520 --> 0:12:43.960 in the back to the San Francisco case, what about 0:12:43.960 --> 0:12:48.240 all these permits that have these end result conditions in them? 0:12:48.280 --> 0:12:53.640 Because most, if not all NPDS permits do have such 0:12:53.679 --> 0:12:57.240 a condition. Right, that's required by EPA's rules that you 0:12:57.320 --> 0:13:00.960 have a condition in state issued NPA es permits that 0:13:01.040 --> 0:13:02.200 have that kind of condition. 0:13:02.360 --> 0:13:02.560 Right. 0:13:03.000 --> 0:13:06.640 So, now, with what the Ninth Circuit has said in 0:13:06.679 --> 0:13:10.200 the Puget Sound case and what the Supreme Court has 0:13:10.240 --> 0:13:14.120 refused to review, I predict we're going to see people 0:13:14.160 --> 0:13:19.600 trying to enforce these end result conditions and arguing that 0:13:20.160 --> 0:13:24.720 your opportunity to challenge those conditions was when the permit 0:13:24.880 --> 0:13:27.719 was issued. And so you're going to have a collateralist 0:13:27.720 --> 0:13:34.080 stopple argument, which means more chaos. Even though again Alito 0:13:34.200 --> 0:13:38.320 thinks by saying you can't impose end result conditions in 0:13:38.360 --> 0:13:42.320 a permit, that resolves the question, No, it doesn't. It 0:13:42.400 --> 0:13:46.360 now raises the question of whether these permit conditions that 0:13:46.480 --> 0:13:49.560 could have been challenged, but we are still in effect. 0:13:49.720 --> 0:13:51.520 So there you go. More chaos. 0:13:51.800 --> 0:13:54.600 Well, Alito thought that the Dobbs decision would end the 0:13:54.640 --> 0:13:58.280 abortion questions, So there you go. Coming up next, how 0:13:58.320 --> 0:14:03.319 the Supreme Court's decision limiting judges from issuing nationwide injunctions 0:14:03.679 --> 0:14:08.880 affects environmental litigation. This is Bloomberg. I've been talking to 0:14:09.000 --> 0:14:12.840 Professor Pat Parento of the Vermont Lawn Graduate School about 0:14:12.880 --> 0:14:16.840 several cases this term where the Supreme Court delivered setbacks 0:14:16.880 --> 0:14:20.840 to the environment. There was a case involving standing to 0:14:21.000 --> 0:14:24.840 sue where the justices, in a seven to two ruling, 0:14:25.440 --> 0:14:29.480 sided with fuel producers that were suing over California's standards 0:14:29.560 --> 0:14:34.360 for vehicle emissions and electric cars. First, tell us what 0:14:34.480 --> 0:14:37.080 are California's standards Right now? 0:14:37.400 --> 0:14:40.840 Two things have happened. One to Congress. The House and 0:14:40.880 --> 0:14:45.440 in the Senate used the Congressional Review Act to overrule 0:14:46.040 --> 0:14:50.560 EPA's approval of California's waiver under the Clean Air Act, 0:14:50.560 --> 0:14:53.960 which would give California the opportunity to set more stringent 0:14:54.240 --> 0:14:58.200 tailpipe emission standards. And thirteen other states, including Vermont and 0:14:58.280 --> 0:15:01.080 New York I, have adopted the cal California standards. But 0:15:01.240 --> 0:15:06.040 now that Congress has overruled the waiver, those standards are 0:15:06.040 --> 0:15:10.320 not in effect. California has sued. Attorney General Bonta has sued. 0:15:10.720 --> 0:15:13.920 The problem is that the Congressional Review Act says the 0:15:13.960 --> 0:15:17.160 courts don't have authority to review decisions of Congress to 0:15:17.800 --> 0:15:21.680 overturn these rules. That's a complicated legal question. You know, 0:15:22.040 --> 0:15:24.600 the waiver is really not a rule. It's a waiver. 0:15:24.800 --> 0:15:28.320 It's a fact based determination. It's not a rule like 0:15:28.360 --> 0:15:32.080 you normally see under the Clean Air Actor or other statutes, 0:15:32.200 --> 0:15:36.160 you know, which are uniform and nationwide and general policy, 0:15:36.200 --> 0:15:39.479 et cetera. You know, the waiver is specific to California. 0:15:39.600 --> 0:15:43.120 So the point is, you know, Bonta would ordinarily have 0:15:43.160 --> 0:15:46.440 a pretty good argument that what Congress did was illegal. 0:15:46.520 --> 0:15:49.720 But Congress did it, and Congress also said you can't 0:15:49.720 --> 0:15:53.120 review what we did. So you know, my prediction is 0:15:53.280 --> 0:15:56.000 Bonta is probably going to lose that case. In addition, 0:15:56.440 --> 0:15:59.520 the big Ugly Bill that I'm going to call it 0:15:59.800 --> 0:16:04.680 also contains a provision saying you can't penalize car companies 0:16:05.320 --> 0:16:08.120 for violating what are called the cafe standards. This is 0:16:08.200 --> 0:16:11.800 under a different statute, the fuel Economy standards under the 0:16:11.920 --> 0:16:15.520 Energy Policy and Conservation Act, which was passed during the 0:16:15.600 --> 0:16:18.800 era of oil embargo, back in Jimmy Carter's time, and 0:16:19.080 --> 0:16:22.360 you know, NITSA under the Department of Transportation has set 0:16:22.400 --> 0:16:26.280 these very stringent fuel economy standards and the companies are 0:16:26.320 --> 0:16:30.600 clearly in violation of those standards, and the big ugly 0:16:30.640 --> 0:16:32.880 bill has just said, yeah, but you can't penalize them 0:16:32.880 --> 0:16:36.720 for that. The bill didn't repeal the standards. The companies 0:16:36.760 --> 0:16:39.680 are still in violation of the standards, but the bill 0:16:39.720 --> 0:16:43.600 says you can't penalize them for that. So, you know, 0:16:43.800 --> 0:16:48.240 in two whacks at the largest source of greenhouse gas 0:16:48.240 --> 0:16:52.600 emissions and many other pollutants, you know, volatile organic compounds 0:16:52.600 --> 0:16:55.160 and so forth, you know, pollutants that are causing again 0:16:55.600 --> 0:16:59.280 serious public health problems across the country. But the Congress 0:16:59.320 --> 0:17:04.080 has in twos taken out two of the federal regulatory 0:17:04.119 --> 0:17:07.840 provisions that are designed to deal with the mission standards 0:17:08.160 --> 0:17:12.280 and fuel economy standards, which would improve the performance of 0:17:12.640 --> 0:17:17.080 the transportation system, not just greenhouse gases, but all these 0:17:17.080 --> 0:17:20.040 other pollutants as well. So we talked about a bad 0:17:20.119 --> 0:17:22.800 year for the environment in the Supreme Court. Oh my god, 0:17:23.200 --> 0:17:25.640 it was even worse in the Congress of the United States, 0:17:26.400 --> 0:17:26.840 and now. 0:17:26.720 --> 0:17:31.680 Tell us about the Sevenitude decision written by Justice Brett Kavanaugh. 0:17:32.320 --> 0:17:36.800 Oh, the decision by Kavanov It grants standing to entities 0:17:36.840 --> 0:17:42.080 that are not regulated by the California Provision, not directly regulated. 0:17:42.840 --> 0:17:45.359 It wasn't brought by the car company. It was brought 0:17:45.400 --> 0:17:50.880 by other entities, energy companies, biofuels companies, companies that want 0:17:50.880 --> 0:17:54.040 to be able to sell you know, fuels and are 0:17:54.119 --> 0:17:58.160 angry about the shift to electric vehicles and hybrid vehicles 0:17:58.440 --> 0:18:01.359 because it's going to impact their sales. They argue with 0:18:01.480 --> 0:18:05.040 some justification, right, but you know that's not the kind 0:18:05.040 --> 0:18:09.680 of injury that the Supreme Court would ever countenance. If 0:18:09.680 --> 0:18:14.040 an environmental organization was making that argument, you'd be thrown 0:18:14.040 --> 0:18:16.680 out of court on your ear. Trust me, I've been 0:18:16.760 --> 0:18:19.960 thrown out on my ear for making those kinds of 0:18:20.440 --> 0:18:24.200 arguments where you're not the direct target of the regulation. 0:18:24.560 --> 0:18:28.359 But when it comes to industry and corporate interests, you know, 0:18:28.480 --> 0:18:31.159 the Supreme Court is it's olay. You know, it's your 0:18:31.280 --> 0:18:34.240 waves into court by virtue of the fact, Well, you're 0:18:34.280 --> 0:18:38.560 a business interest, you're a serious interest. And even if 0:18:38.600 --> 0:18:41.880 we might think that some of your claims are exaggerated, 0:18:42.280 --> 0:18:45.240 and certainly it's hard to tell exactly how and when 0:18:45.320 --> 0:18:48.320 you're going to be affected by the waiver of the 0:18:48.359 --> 0:18:51.919 California standard. We're gonna let you into court anyway. So 0:18:52.080 --> 0:18:55.760 it's just, you know, a case of unfair treatment of 0:18:55.840 --> 0:18:58.720 environmental groups on the one hand and generous treatment of 0:18:58.760 --> 0:18:59.920 industry groups on the other. 0:19:00.600 --> 0:19:04.679 Pat let's talk about the Supreme Court's recent decision curbing 0:19:04.680 --> 0:19:09.879 federal Court's ability to block policy enforcement through nationwide injunctions 0:19:10.080 --> 0:19:14.040 and how that affects environmental litigation. What did the court 0:19:14.119 --> 0:19:15.040 leave open there? 0:19:16.240 --> 0:19:19.280 Well, you know, the case came to the Supreme Court 0:19:19.359 --> 0:19:23.240 on a preliminary injunction and you know, sort of by 0:19:23.359 --> 0:19:28.159 definition that means it was a preliminary decision of the court. 0:19:28.520 --> 0:19:32.240 So one question is going to be, does the ban, 0:19:32.680 --> 0:19:38.399 if you will, on universal injunctions or nationwide injunctions as 0:19:38.440 --> 0:19:43.399 the Court describes it, Does that same rule apply at 0:19:43.440 --> 0:19:47.520 the permanent injunction stage of the case where the Court 0:19:47.560 --> 0:19:51.960 has determined on the merits that whatever action you're challenging 0:19:52.119 --> 0:19:56.000 is illegal. It may have even been void of initio, 0:19:56.119 --> 0:19:58.560 as we say, right, it was never legal to begin with, 0:19:59.200 --> 0:20:03.880 So what a cour also be precluded from issuing an 0:20:03.880 --> 0:20:08.040 injunction that would have nationwide effect at the final stage 0:20:08.040 --> 0:20:10.160 of the case, as they say, where the court has 0:20:10.200 --> 0:20:12.840 determined there's there's a violation of law, and now are 0:20:12.880 --> 0:20:15.680 you really serious that it would be a violation only 0:20:15.720 --> 0:20:17.560 in the state where the case was brought and not 0:20:17.680 --> 0:20:20.639 anywhere else. It may be that that is the rule 0:20:20.960 --> 0:20:23.359 going forward. That's what I think. You know, people that 0:20:23.400 --> 0:20:27.199 are commenting in the legal academy and practitioners that you 0:20:27.200 --> 0:20:31.119 know regularly practice environmental law are saying, so maybe that 0:20:31.280 --> 0:20:34.320 is the result of the case, that district court judges 0:20:34.359 --> 0:20:38.200 are never going to be able to issue nationwide injunctions. 0:20:38.520 --> 0:20:41.360 But if you read the decision and it's it's fractured, 0:20:41.359 --> 0:20:44.000 there's a whole bunch of different opinions in the case. 0:20:44.000 --> 0:20:47.359 So trying to triangulate where do you have five votes 0:20:47.400 --> 0:20:51.560 and on what that's still an open question. And certainly 0:20:51.920 --> 0:20:56.840 as Kavanaugh throughout the option of bringing class actions. You know, 0:20:57.000 --> 0:21:00.560 so that then introduces the question, well, you know, for 0:21:00.640 --> 0:21:05.159 birthright citizenship, what's the class it would be all the 0:21:05.240 --> 0:21:08.720 kids in offspring, I guess you'd say in the country 0:21:08.840 --> 0:21:14.639 that are the children of undocumented migrants, but they were 0:21:14.640 --> 0:21:16.879 born in this country, and the fourteenth Amendment says if 0:21:16.880 --> 0:21:20.080 you're born in this country, you're a citizen. Right. And Alido, 0:21:20.200 --> 0:21:23.359 in his concurring opinion, saw this as he would expect 0:21:23.359 --> 0:21:26.119 he would. He saw this as a loophole. He said, 0:21:26.240 --> 0:21:29.800 if you can declare a national class, then you can 0:21:29.880 --> 0:21:32.320 just get around the ruling that you can't issue a 0:21:32.400 --> 0:21:37.119 nationwide injunction. So there you go. Are class actions going 0:21:37.200 --> 0:21:40.480 to be the way that plaintiff lawyers are going to 0:21:40.520 --> 0:21:44.040 try to get around the decision in the Casa as 0:21:44.080 --> 0:21:46.600 it's called case And the answer is yeah, they're going 0:21:46.640 --> 0:21:49.600 to try to do that. And once again, here we 0:21:49.640 --> 0:21:53.000 go again. We don't have a clear answer from this 0:21:53.119 --> 0:21:58.000 decision about when will universal injunctions be allowed and when 0:21:58.040 --> 0:22:01.400 will they clearly never be allowed. We just don't know. 0:22:02.440 --> 0:22:09.359 Our class actions are realistic alternative for plaintiffs in environmental litigation. 0:22:10.400 --> 0:22:13.919 I doubt it, you know, because number one, you know, 0:22:14.040 --> 0:22:16.359 trying to define the class and the Supreme Court has 0:22:16.359 --> 0:22:20.200 actually made it very difficult to certify classes. I mean, 0:22:20.200 --> 0:22:23.199 that's the whole separate process that the courts have to 0:22:23.240 --> 0:22:25.800 go through to figure out, you know, is this really 0:22:25.840 --> 0:22:29.679 a case where you can define a class and if so, 0:22:29.800 --> 0:22:33.359 what is that class. And for environmental violations, you know, 0:22:33.359 --> 0:22:37.160 if you think about Endangered Species Act and neep of violations, 0:22:37.480 --> 0:22:40.520 even violations of the Clean Air Act the Clean Water Act, 0:22:40.760 --> 0:22:44.719 it's pretty difficult to say any particular violation is going 0:22:44.760 --> 0:22:48.400 to be national in scope. You know, the birthright citizenship 0:22:48.440 --> 0:22:51.399 is the exception to that. Probably, and maybe some of 0:22:51.400 --> 0:22:54.119 the other things that the Trump administration is doing with 0:22:54.680 --> 0:22:58.560 both deportation and maybe even some of the defunding moves 0:22:58.600 --> 0:23:02.040 that they're making that my have national implications. You know, 0:23:02.080 --> 0:23:06.320 there are probably some types of violations where a national 0:23:06.400 --> 0:23:10.760 class could be defined, but probably environment it's going to 0:23:10.760 --> 0:23:14.199 be difficult if you are able to define a class 0:23:14.240 --> 0:23:18.040 that's broader than just perhaps within the bounds of a 0:23:18.080 --> 0:23:22.680 state or even a judicial district that's issuing a decision. 0:23:23.240 --> 0:23:26.240 Once you do that, once you certify the class. Maybe 0:23:26.440 --> 0:23:29.240 I've been involved in class actions, maybe you have as well. 0:23:29.359 --> 0:23:33.960 I'm sure lots of people have. You get a notice, right, congratulations, 0:23:34.000 --> 0:23:37.199 you've just been named in class acts. But now you 0:23:37.280 --> 0:23:39.560 have to opt in or opt out of the class. 0:23:39.760 --> 0:23:42.399 If you opt into the class, you've become a party 0:23:42.440 --> 0:23:45.600 to litigation you didn't even know about, right, somebody brought 0:23:45.600 --> 0:23:47.640 a class action lawsuit and all of a sudden, you've 0:23:47.680 --> 0:23:50.320 been named as a member of that class. You have 0:23:50.400 --> 0:23:53.560 the option of opting in or not. If you opt in, 0:23:54.000 --> 0:23:57.400 guess what you can be deposed. Now that doesn't usually 0:23:57.480 --> 0:24:01.480 happen in these class action lawsuits, like abuse of credit 0:24:01.480 --> 0:24:04.040 cards or something like that. But you have to be 0:24:04.080 --> 0:24:08.159 given notice. That costs money. So the bottom line is 0:24:08.560 --> 0:24:13.679 class actions are expensive, they're complicated. There's all kinds of 0:24:13.760 --> 0:24:16.720 rules that go with them, all of which means that 0:24:16.960 --> 0:24:20.840 relying on class actions to bring the kinds of environmental 0:24:20.840 --> 0:24:23.119 cases that have been brought in the past, and the 0:24:23.240 --> 0:24:27.200 kinds of cases where environmental groups have succeeded in getting 0:24:27.280 --> 0:24:31.159 nationwide injunctions, and by the way, opponents of rules and 0:24:31.520 --> 0:24:36.119 environmental protection have also gained nationwide injunctions. The specific legal 0:24:36.200 --> 0:24:40.040 foundation is in business to do that very thing in 0:24:40.160 --> 0:24:44.120 challenging rules under the Clean Water Acts. Think the Sacket case, right, 0:24:44.400 --> 0:24:47.320 and others like that. So you know, this question of 0:24:47.440 --> 0:24:51.880