1 00:00:03,120 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:09,240 --> 00:00:13,240 Speaker 1: A landmark trial is kicking off in Minnesota the first 3 00:00:13,280 --> 00:00:16,280 Speaker 1: time one of the thousands of cases against eat cigarette 4 00:00:16,320 --> 00:00:19,599 Speaker 1: maker Jewel is going to play out in a courtroom. 5 00:00:20,280 --> 00:00:24,120 Speaker 1: Minnesota accuses Jewel and Altria of hooking a generation of 6 00:00:24,200 --> 00:00:28,400 Speaker 1: young people on their products by deception and slick advertising, 7 00:00:28,600 --> 00:00:31,240 Speaker 1: and the state wants the companies to pay up for 8 00:00:31,320 --> 00:00:34,960 Speaker 1: the public costs of addressing an uptick in youth vaping 9 00:00:35,040 --> 00:00:38,760 Speaker 1: and smoking. Joining me its healthcare attorney Harry Nelson of 10 00:00:38,880 --> 00:00:44,000 Speaker 1: Nelson Hardeman Harry Minnesota is using the theory of public nuisance, 11 00:00:44,600 --> 00:00:47,440 Speaker 1: a theory that was used against the tobacco industry in 12 00:00:47,440 --> 00:00:50,920 Speaker 1: the nineteen nineties. Tell us about it. Yeah, so a 13 00:00:50,960 --> 00:00:54,520 Speaker 1: public nuisance legal theory. It was a theory that actually 14 00:00:54,520 --> 00:00:56,760 Speaker 1: grew out of cases where there had been some kind 15 00:00:56,800 --> 00:01:01,600 Speaker 1: of public harm like damage to you know, water sources 16 00:01:01,640 --> 00:01:04,280 Speaker 1: and from pollution and things like that. And the idea 17 00:01:04,319 --> 00:01:09,360 Speaker 1: was that essentially you could hold private parties responsible for 18 00:01:09,880 --> 00:01:13,039 Speaker 1: the social costs, the costs that they impost on society. 19 00:01:13,560 --> 00:01:16,720 Speaker 1: So we've been seeing through the opioid cases of the 20 00:01:16,760 --> 00:01:20,480 Speaker 1: last few years they attempt to extend that theory against 21 00:01:20,600 --> 00:01:24,319 Speaker 1: drug makers and pharmacies that allowed easy access, and the 22 00:01:24,319 --> 00:01:26,440 Speaker 1: state of Minnesota is trying to do the same thing here, 23 00:01:26,720 --> 00:01:29,880 Speaker 1: essentially to say that Jewels, you know, the e cigarette company, 24 00:01:30,160 --> 00:01:34,199 Speaker 1: that Altria, the biggest of the tobacco companies, essentially caused 25 00:01:34,280 --> 00:01:38,280 Speaker 1: great harm to the public by encouraging the sale of 26 00:01:38,319 --> 00:01:44,240 Speaker 1: these cigarette flavors to teenagers and to underage consumers. Do 27 00:01:44,280 --> 00:01:46,679 Speaker 1: you think that the public nuisance theory is a good 28 00:01:46,720 --> 00:01:52,040 Speaker 1: fit for what it's accusing Jewelove, I think it is 29 00:01:52,320 --> 00:01:54,760 Speaker 1: a little bit of a stretch. Personally, I think that 30 00:01:55,040 --> 00:02:00,400 Speaker 1: this issue of underage consumers smoking or engaging in healthy 31 00:02:00,440 --> 00:02:05,280 Speaker 1: behaviors is a more complicated problem. It's not a clean 32 00:02:05,520 --> 00:02:08,480 Speaker 1: fit to me that jewel was the entire problem. I 33 00:02:08,520 --> 00:02:12,440 Speaker 1: think there's a broader question about our consumer culture that 34 00:02:12,600 --> 00:02:16,800 Speaker 1: made this product so closely popular with kids. So, while 35 00:02:16,800 --> 00:02:21,000 Speaker 1: I do think that the marketing practices were reprehensible, I'm 36 00:02:21,040 --> 00:02:23,800 Speaker 1: not sure that it's a clear line to say that 37 00:02:23,840 --> 00:02:26,120 Speaker 1: they were the cause of all these problems. I also 38 00:02:26,160 --> 00:02:28,640 Speaker 1: think it's unclear. We won't know for years what the 39 00:02:28,680 --> 00:02:31,840 Speaker 1: long term health effects will be of kids starting to 40 00:02:31,880 --> 00:02:35,640 Speaker 1: smoke in eighth grade, and certainly there's been an issue 41 00:02:35,639 --> 00:02:39,240 Speaker 1: of teenagers of older teenagers, tenth graders, eleventh graders smoking 42 00:02:39,280 --> 00:02:44,160 Speaker 1: that preday e cigarette. Minnesota says in papers that in 43 00:02:44,200 --> 00:02:48,200 Speaker 1: the fourteen years between two and twenty fourteen Minnesota high 44 00:02:48,240 --> 00:02:51,480 Speaker 1: schoolers smoking at least one cigarette in the last thirty 45 00:02:51,560 --> 00:02:54,880 Speaker 1: days dropped from thirty two point four percent down to 46 00:02:54,960 --> 00:02:58,919 Speaker 1: ten point six percent. Six years later, nineteen point three 47 00:02:59,000 --> 00:03:03,480 Speaker 1: percent of high schoolers reported having vaped at least once 48 00:03:03,560 --> 00:03:06,919 Speaker 1: in the last thirty days. Does that make their case 49 00:03:07,160 --> 00:03:10,440 Speaker 1: about public health or do they need to do much more? 50 00:03:11,680 --> 00:03:13,880 Speaker 1: I think that's a helpful fact to them. I just 51 00:03:13,919 --> 00:03:16,560 Speaker 1: don't know the whole story. I think the reality is 52 00:03:16,600 --> 00:03:21,200 Speaker 1: like vaping in general has become a more socially acceptable 53 00:03:21,240 --> 00:03:25,280 Speaker 1: and more popular alternative too smoking. So even as we've 54 00:03:25,280 --> 00:03:29,280 Speaker 1: seen a decline in general rates of cigarette smoking, you know, 55 00:03:29,320 --> 00:03:33,400 Speaker 1: with greater awareness that vaping is a slightly healthier choice 56 00:03:33,600 --> 00:03:37,120 Speaker 1: of an overall very unhealthy activity. You know it's increased. 57 00:03:37,120 --> 00:03:39,000 Speaker 1: So I think it's helpful. I just don't know. I 58 00:03:39,040 --> 00:03:42,400 Speaker 1: don't think it's a clam dunk. Jule and Altria are 59 00:03:42,480 --> 00:03:45,680 Speaker 1: trying to shift the blame to the state of Minnesota. 60 00:03:45,880 --> 00:03:49,480 Speaker 1: Minnesota got billions of dollars from tobacco settlements over the 61 00:03:49,600 --> 00:03:54,520 Speaker 1: last decade, but spent less than one percent on prevention efforts, 62 00:03:54,960 --> 00:03:58,920 Speaker 1: instead using the funds to bankroll unrelated products like the 63 00:03:58,960 --> 00:04:03,720 Speaker 1: Minnesota Viking football Stadium. This is a really interesting argument. 64 00:04:03,880 --> 00:04:06,840 Speaker 1: If you go back to nineteen ninety eight, the various 65 00:04:06,920 --> 00:04:10,840 Speaker 1: states one something like two hundred and five two hundred 66 00:04:10,840 --> 00:04:13,320 Speaker 1: and six billion dollars. I think the state of Minnesota 67 00:04:13,320 --> 00:04:17,839 Speaker 1: alone got over six billion dollars in the tobacco settlements, 68 00:04:17,839 --> 00:04:20,600 Speaker 1: with all the big tobacco companies, but including the company 69 00:04:20,640 --> 00:04:23,800 Speaker 1: that's now Altria right it used to be Philip Morris. 70 00:04:23,839 --> 00:04:28,480 Speaker 1: And so there was an enormous opportunity for not only Minnesota, 71 00:04:28,520 --> 00:04:31,159 Speaker 1: but for all of the states to use that money 72 00:04:31,279 --> 00:04:35,400 Speaker 1: to really create better public health programs, better education programs 73 00:04:35,440 --> 00:04:38,679 Speaker 1: to reduce smoking and educate people about the dangers of smoking, 74 00:04:39,080 --> 00:04:42,400 Speaker 1: and intervene in trends like this. And I think that 75 00:04:42,560 --> 00:04:45,880 Speaker 1: Jewel and Altria have a good case to make that 76 00:04:46,000 --> 00:04:49,440 Speaker 1: not only Minnesota, but literally every state in the country 77 00:04:49,800 --> 00:04:52,120 Speaker 1: basically wasted that opportunity. When we look at what they 78 00:04:52,120 --> 00:04:54,960 Speaker 1: did with the money, they mostly plugged holes in state 79 00:04:55,000 --> 00:04:57,880 Speaker 1: budgets and just considered it's sort of a flush fund 80 00:04:58,279 --> 00:05:00,440 Speaker 1: to be used whenever there was a financi will needs. 81 00:05:00,520 --> 00:05:03,359 Speaker 1: It's hard to find any examples in Minnesota. There's no 82 00:05:03,400 --> 00:05:07,839 Speaker 1: accession of a state that really used the money comprehensively 83 00:05:07,880 --> 00:05:10,679 Speaker 1: for effective public health related to the danger of smoking. 84 00:05:11,080 --> 00:05:14,000 Speaker 1: Do Altria and Jewel have the same defense or are 85 00:05:14,000 --> 00:05:17,719 Speaker 1: they pointing fingers. Jewel is the main target here. Disuel 86 00:05:17,800 --> 00:05:20,839 Speaker 1: Lab is the company that developed this and marketed this, 87 00:05:20,920 --> 00:05:22,880 Speaker 1: and they are a victim of their own success with 88 00:05:23,000 --> 00:05:25,599 Speaker 1: all of the flavors that they came out with, mango 89 00:05:25,640 --> 00:05:28,760 Speaker 1: and other things that really appeals to kids. Altria has 90 00:05:28,800 --> 00:05:31,800 Speaker 1: the misfortune of having been a major investor, I think 91 00:05:31,800 --> 00:05:34,799 Speaker 1: something like twelve to thirteen billion dollar investment in Jewel. 92 00:05:34,960 --> 00:05:37,719 Speaker 1: But it's not to me at all clear why Altria 93 00:05:37,960 --> 00:05:42,320 Speaker 1: is fitting side by side defending this case with Jewel. Frankly, 94 00:05:42,360 --> 00:05:44,800 Speaker 1: it looks like they are there because they are such 95 00:05:44,839 --> 00:05:47,720 Speaker 1: a big player in the overall tobacco industry and not 96 00:05:47,839 --> 00:05:50,919 Speaker 1: because they were so singularly attached to this product. In fact, 97 00:05:51,360 --> 00:05:55,320 Speaker 1: Altria has completely divested itself of its position and Jewel, 98 00:05:55,400 --> 00:05:58,680 Speaker 1: which I think was never more than a small minority percentage. Ironically, 99 00:05:58,680 --> 00:06:01,960 Speaker 1: Altria has actually invested it in a competing product, Enjoy, 100 00:06:02,360 --> 00:06:05,400 Speaker 1: which is competing with jewels, and so I'm not clear 101 00:06:05,800 --> 00:06:08,200 Speaker 1: if their apparence here is more about optics and having 102 00:06:08,680 --> 00:06:11,000 Speaker 1: you know, the biggest tobacco company in the country so 103 00:06:11,080 --> 00:06:14,000 Speaker 1: much as related to their actual activity and state of 104 00:06:14,040 --> 00:06:17,840 Speaker 1: Minnesota related to eastigs. Also for the deep pocket, yeah, 105 00:06:17,920 --> 00:06:20,279 Speaker 1: no questions. As a parent of children, I share the 106 00:06:20,320 --> 00:06:25,640 Speaker 1: concern about the effective, dangerously effective marketing of east cigarettes. 107 00:06:25,640 --> 00:06:28,920 Speaker 1: But it does seem that Altria is at the table 108 00:06:29,320 --> 00:06:32,320 Speaker 1: mostly not only for their size and disability, but also 109 00:06:32,640 --> 00:06:34,960 Speaker 1: for the potential resources that they can add to the 110 00:06:35,000 --> 00:06:37,760 Speaker 1: pool of funds. So I agree with your comment about 111 00:06:37,760 --> 00:06:39,720 Speaker 1: them being a deep pocket here. As far as if 112 00:06:39,760 --> 00:06:43,240 Speaker 1: the jury thinks the state has some responsibility here, is 113 00:06:43,240 --> 00:06:47,640 Speaker 1: this a case where the jury can allocate damages. Yeah, absolutely, 114 00:06:47,680 --> 00:06:51,800 Speaker 1: the jury does have the ability to attribute comparative amount 115 00:06:52,080 --> 00:06:55,800 Speaker 1: and to assess responsibilities. So yeah, it's a tricky case 116 00:06:55,880 --> 00:06:59,359 Speaker 1: for Altria because it obviously the goal is to show 117 00:06:59,360 --> 00:07:02,000 Speaker 1: that this is a bigger, more complex problem that isn't 118 00:07:02,040 --> 00:07:04,719 Speaker 1: specifically tied to this, but also to try to minimize 119 00:07:04,760 --> 00:07:08,000 Speaker 1: its share of any damages that are awarded. So what's 120 00:07:08,040 --> 00:07:11,280 Speaker 1: the question the jury will have to answer. I mean, 121 00:07:11,520 --> 00:07:17,480 Speaker 1: the question is really whether Jewel engaged in deceptive marketing 122 00:07:17,520 --> 00:07:22,120 Speaker 1: practices that targeted Minnesota youth. And so that's really the 123 00:07:22,200 --> 00:07:24,400 Speaker 1: claim that's being made, essentially, that there was some kind 124 00:07:24,440 --> 00:07:28,720 Speaker 1: of fraudulent practice, you know, that there was actually intention 125 00:07:29,320 --> 00:07:34,480 Speaker 1: to lull kids into taking up vaping in the marketing 126 00:07:34,480 --> 00:07:36,480 Speaker 1: that they use, rather than this being a case of 127 00:07:36,600 --> 00:07:40,120 Speaker 1: kids being marketing, you know that was intended for adults, 128 00:07:40,160 --> 00:07:44,120 Speaker 1: that in fact, the entire strategy of Jewel was to 129 00:07:44,480 --> 00:07:47,520 Speaker 1: hook a whole new generation of young kids on vaping. 130 00:07:48,120 --> 00:07:52,440 Speaker 1: Jewel has faced thousands of lawsuits across the nation, but 131 00:07:52,600 --> 00:07:56,520 Speaker 1: most have settled, and it said that Minnesota had rejected 132 00:07:56,520 --> 00:08:00,280 Speaker 1: settlement offers similar to those reached with other states, which 133 00:08:00,280 --> 00:08:03,560 Speaker 1: provided quote hundreds of millions of dollars to further combat 134 00:08:03,680 --> 00:08:08,520 Speaker 1: underage use and developed cessation programs in those states. So 135 00:08:08,800 --> 00:08:11,400 Speaker 1: is this for the good of Minnesota or is this, 136 00:08:11,720 --> 00:08:15,040 Speaker 1: you know, for making a name and making a statement 137 00:08:15,160 --> 00:08:17,800 Speaker 1: about these products. I'm just trying to figure out why 138 00:08:17,840 --> 00:08:21,720 Speaker 1: they wouldn't settle. Yeah, it definitely is an aggressive strategy 139 00:08:21,800 --> 00:08:23,800 Speaker 1: here on the part of the state of Minnesota. It 140 00:08:23,880 --> 00:08:27,680 Speaker 1: seems interesting that the state Attorney General, Keith Ellison is 141 00:08:27,720 --> 00:08:31,600 Speaker 1: actually taking the lead in trying this case. He's certainly 142 00:08:31,600 --> 00:08:36,160 Speaker 1: someone who has a colorful political history nationally, and I 143 00:08:36,200 --> 00:08:39,880 Speaker 1: do think there's certainly a question of whether there's some grandstanding, 144 00:08:40,280 --> 00:08:41,920 Speaker 1: you know, whether it's to create a name for him 145 00:08:42,040 --> 00:08:44,640 Speaker 1: or just to make a statement by taking such an 146 00:08:44,679 --> 00:08:47,520 Speaker 1: aggressive position on this case rather than following the path 147 00:08:47,640 --> 00:08:51,120 Speaker 1: of other states and pursuing a quicker settlement. The State 148 00:08:51,120 --> 00:08:54,880 Speaker 1: of Minnesota hasn't set a number for damages, but Ellison 149 00:08:54,920 --> 00:08:58,080 Speaker 1: said that it could be in the ballpark with Minnesota's 150 00:08:58,160 --> 00:09:01,280 Speaker 1: landmarks seven point one bill million dollars settlement with the 151 00:09:01,320 --> 00:09:05,600 Speaker 1: tobacco industry in nineteen ninety eight. But wasn't that a 152 00:09:05,640 --> 00:09:08,480 Speaker 1: bigger case the case with the tobacco industry, and didn't 153 00:09:08,480 --> 00:09:12,760 Speaker 1: it go back decades. It's really hard to imagine how 154 00:09:12,800 --> 00:09:15,920 Speaker 1: the problem of jewel could be taken as equivalent as 155 00:09:16,000 --> 00:09:19,400 Speaker 1: the nineteen ninety eight tobacco settlement, which was really addressing 156 00:09:19,679 --> 00:09:23,320 Speaker 1: decades and decades of actually deceptive marketing where the tobacco 157 00:09:23,360 --> 00:09:27,600 Speaker 1: industry knew how dangerous smoking was to American health and 158 00:09:28,000 --> 00:09:31,319 Speaker 1: clearly did everything it could to block that information from 159 00:09:31,320 --> 00:09:33,440 Speaker 1: coming out and to keep pushing a product that it 160 00:09:33,480 --> 00:09:36,319 Speaker 1: knew was deadly. So the conduct here happened in a 161 00:09:36,440 --> 00:09:38,840 Speaker 1: much shorter period of time. I don't think Jewel even 162 00:09:38,920 --> 00:09:41,400 Speaker 1: entered the market until twenty sixteen, and I think the 163 00:09:41,440 --> 00:09:44,080 Speaker 1: main period we're focusing on is like twenty sixteen to 164 00:09:44,120 --> 00:09:47,120 Speaker 1: twenty nineteen. So it seems like this should be ultimately 165 00:09:47,120 --> 00:09:50,760 Speaker 1: a drop in the bucket compared to the broader tobacco settlement. 166 00:09:50,880 --> 00:09:53,520 Speaker 1: And again, it does to me raised questions why it's 167 00:09:53,520 --> 00:09:56,640 Speaker 1: any general Ellison is taking such an aggressive position here, 168 00:09:56,960 --> 00:09:58,840 Speaker 1: Not to say that this isn't a problem, but to 169 00:09:58,880 --> 00:10:01,360 Speaker 1: suggest that it's on par with the whole tobacco crisis 170 00:10:01,440 --> 00:10:04,400 Speaker 1: seems a bit much. If the state of Minnesota did 171 00:10:04,440 --> 00:10:09,200 Speaker 1: win here, would it help other states to get leverage 172 00:10:09,240 --> 00:10:12,439 Speaker 1: to reach settlements? I mean, how would it affect states 173 00:10:12,480 --> 00:10:15,680 Speaker 1: outside of Minnesota, or you know, the general population outside 174 00:10:15,679 --> 00:10:19,040 Speaker 1: of Minnesota. I mean, I think if a jury is 175 00:10:19,360 --> 00:10:23,000 Speaker 1: receptive and gives Minnesota, give a Jorney General Ellison a 176 00:10:23,160 --> 00:10:26,240 Speaker 1: multi billion dollars or even a billion dollars settlement here, 177 00:10:26,600 --> 00:10:30,240 Speaker 1: I think it will embolden other states, and it will 178 00:10:30,360 --> 00:10:34,080 Speaker 1: concern Jewels and potentially Altria and sort of increase the 179 00:10:34,160 --> 00:10:37,480 Speaker 1: numbers that are being paid out, which are already significant 180 00:10:37,480 --> 00:10:39,520 Speaker 1: and in the hundreds of millions of dollars. So I 181 00:10:39,559 --> 00:10:42,000 Speaker 1: do think that this case in a sense will either 182 00:10:42,080 --> 00:10:45,280 Speaker 1: strengthen or weaken the assessments on both sides of what 183 00:10:45,360 --> 00:10:48,079 Speaker 1: this case is worse and what this harm is worse 184 00:10:48,160 --> 00:10:50,000 Speaker 1: than what it's going to take settle these cases. So 185 00:10:50,080 --> 00:10:52,920 Speaker 1: there is exposure here. If Minnesota wins this case, there's 186 00:10:52,920 --> 00:10:55,200 Speaker 1: going to be more states that are willing to be 187 00:10:55,240 --> 00:10:58,320 Speaker 1: more aggressive and push for more which is going to 188 00:10:58,360 --> 00:11:02,199 Speaker 1: be obviously bad for Joel in Altria. And if Minnesota 189 00:11:02,280 --> 00:11:06,520 Speaker 1: loses the case, will Jewel in Altria be hesitant to 190 00:11:06,559 --> 00:11:09,920 Speaker 1: settle these cases? Again? I mean it's more like I 191 00:11:09,920 --> 00:11:11,679 Speaker 1: think of it a little bit like a stock, right, 192 00:11:11,720 --> 00:11:14,800 Speaker 1: So if Minnesota loses this case, then the value of 193 00:11:14,840 --> 00:11:17,880 Speaker 1: the claims that other states and jurisdictions could make against 194 00:11:18,000 --> 00:11:21,640 Speaker 1: Jewel against Altria will be a little bit lower. And 195 00:11:21,800 --> 00:11:24,920 Speaker 1: Jewels already shown a desire to settle these cases. I 196 00:11:25,000 --> 00:11:27,880 Speaker 1: just think it may be slightly more aggressive and settle 197 00:11:27,960 --> 00:11:29,880 Speaker 1: for a little bit less. But at the end of 198 00:11:29,880 --> 00:11:32,160 Speaker 1: the day, it seems to me that these companies have 199 00:11:32,320 --> 00:11:36,920 Speaker 1: set aside huge reserves, you know, to pay off claims here, 200 00:11:37,160 --> 00:11:40,080 Speaker 1: not because they agree that there was any deceptive marketing, 201 00:11:40,120 --> 00:11:42,800 Speaker 1: but simply because it's not a popular position to be 202 00:11:43,120 --> 00:11:47,720 Speaker 1: defending marketing that clearly impacted kids and drove more kids 203 00:11:47,760 --> 00:11:50,560 Speaker 1: to vaping. And these companies just need to do what 204 00:11:50,600 --> 00:11:52,920 Speaker 1: they can to get rid of these cases as efficiently 205 00:11:52,920 --> 00:11:55,080 Speaker 1: as they can. So I think this case is going 206 00:11:55,120 --> 00:11:56,840 Speaker 1: to be significant one way or the other. It's going 207 00:11:56,880 --> 00:11:59,560 Speaker 1: to make these cases around the country a little bit 208 00:11:59,600 --> 00:12:03,040 Speaker 1: more are a little bit lessvaluable. Critics of the public 209 00:12:03,120 --> 00:12:07,360 Speaker 1: nuisance theory say that it allows executive officers like state 210 00:12:07,400 --> 00:12:12,440 Speaker 1: attorneys general to improperly step in and replace the role 211 00:12:12,520 --> 00:12:16,280 Speaker 1: of administrative agencies and lawmakers, which should be the ones 212 00:12:16,360 --> 00:12:20,120 Speaker 1: regulating the industry. Do you agree with that or disagree? 213 00:12:20,440 --> 00:12:23,480 Speaker 1: I mean, I'm not a stan of the expansion of 214 00:12:23,520 --> 00:12:26,360 Speaker 1: public nuisance theory. I think that it played a very 215 00:12:26,520 --> 00:12:29,120 Speaker 1: valuable role in America when it came to some of 216 00:12:29,160 --> 00:12:33,800 Speaker 1: the terrible environmental harm that American industry imposed on different 217 00:12:33,800 --> 00:12:37,400 Speaker 1: parts of the country, where we saw long term, real 218 00:12:37,720 --> 00:12:41,280 Speaker 1: environmental costs that were imposed. You know, when toxins were 219 00:12:41,280 --> 00:12:43,440 Speaker 1: spread in particular parts of the country. I think these 220 00:12:43,559 --> 00:12:48,280 Speaker 1: kind of social behavior oriented public nuisance cases, as in 221 00:12:48,320 --> 00:12:52,320 Speaker 1: the case of opioids and here, are really questionable. You 222 00:12:52,320 --> 00:12:54,480 Speaker 1: can see why it's very exciting to states and to 223 00:12:54,600 --> 00:12:57,160 Speaker 1: executive leaders. But I agree that the questions of the 224 00:12:57,240 --> 00:13:00,199 Speaker 1: long term harm and long term responsibility are probably going 225 00:13:00,240 --> 00:13:02,720 Speaker 1: to be addressed more accurately and with a little bit 226 00:13:02,800 --> 00:13:06,640 Speaker 1: less passion and uncertainty in other places than putting them 227 00:13:06,640 --> 00:13:09,600 Speaker 1: before juries. So I agree with that criticism. The trials 228 00:13:09,600 --> 00:13:12,959 Speaker 1: expected to last three weeks, so we'll find out just 229 00:13:13,040 --> 00:13:16,200 Speaker 1: how the public nusance theory works here. You know, this 230 00:13:16,280 --> 00:13:18,640 Speaker 1: case makes me wonder what's the next issue that we're 231 00:13:18,640 --> 00:13:23,720 Speaker 1: going to see where Americans engaging in dangerous unhealthy behavior 232 00:13:23,960 --> 00:13:26,319 Speaker 1: is going to lead to a public nusance theory. I'm 233 00:13:26,320 --> 00:13:28,600 Speaker 1: still waiting for the sugar industry, you know, for the 234 00:13:28,600 --> 00:13:32,079 Speaker 1: first public nuisance case food. I don't know where it's 235 00:13:32,080 --> 00:13:34,160 Speaker 1: going to be. But I think this kind of reflects 236 00:13:34,160 --> 00:13:36,640 Speaker 1: the trend in American society where, you know, on the 237 00:13:36,640 --> 00:13:38,320 Speaker 1: one he had is good to in my opinion, that 238 00:13:38,320 --> 00:13:42,880 Speaker 1: we're thinking about where the dangers two consumers are. You know, 239 00:13:42,880 --> 00:13:45,160 Speaker 1: On the other hand, it's not always easy to get 240 00:13:45,240 --> 00:13:49,360 Speaker 1: right exactly who's to blame, Thanks Harry, that's healthcare attorney 241 00:13:49,400 --> 00:13:54,199 Speaker 1: Harry Nelson of Nelson Hardeman. The United Nations has released 242 00:13:54,240 --> 00:13:57,440 Speaker 1: an alarming report on the threat to the world's climate. 243 00:13:57,960 --> 00:14:02,760 Speaker 1: UN Secretary General and Tone Guiterrez compared climate change to 244 00:14:02,840 --> 00:14:06,160 Speaker 1: a ticking time bomb and call the report a how 245 00:14:06,240 --> 00:14:09,600 Speaker 1: to guide to diffuse the climate time bomb. You have 246 00:14:09,679 --> 00:14:12,680 Speaker 1: never been better equipped to solve the climate challenge. But 247 00:14:12,800 --> 00:14:16,400 Speaker 1: we must move into warp speed climate action now. We 248 00:14:16,480 --> 00:14:19,840 Speaker 1: don't have a moment to lose, and sixteen kids in 249 00:14:19,920 --> 00:14:23,840 Speaker 1: Montana are not losing any time. They're suing the state 250 00:14:23,920 --> 00:14:27,480 Speaker 1: for robbing them of a clean and healthful environment guaranteed 251 00:14:27,480 --> 00:14:31,440 Speaker 1: in the state's constitution, with its energy policy and extensive 252 00:14:31,480 --> 00:14:34,640 Speaker 1: support of fossil fuels. It will be the first trial 253 00:14:34,760 --> 00:14:38,840 Speaker 1: involving a constitutional climate case, and it begins on June 254 00:14:38,880 --> 00:14:42,960 Speaker 1: twelfth in Helena. Joining me is Michael Girard, director of 255 00:14:43,000 --> 00:14:46,560 Speaker 1: the Sabin Center for Climate Change Law at Columbia Law School, 256 00:14:47,000 --> 00:14:50,120 Speaker 1: tell us about the complaint file by these Montana kids. 257 00:14:51,120 --> 00:14:53,800 Speaker 1: These young people are suing the state of Montana in 258 00:14:53,960 --> 00:14:59,040 Speaker 1: Montana State Court saying that the state's fossil fuel friendly 259 00:14:59,600 --> 00:15:04,240 Speaker 1: policy violate the state constitution. The Montana State Constitution has 260 00:15:04,240 --> 00:15:07,320 Speaker 1: a cause guaranteeing a right to a clean and healthy environment, 261 00:15:07,960 --> 00:15:10,560 Speaker 1: and the plaintiffs are saying that the state is violating 262 00:15:10,600 --> 00:15:13,720 Speaker 1: that right by allowing so much coal and oil and 263 00:15:13,800 --> 00:15:20,720 Speaker 1: gas throwing. And Montana added that language in nineteen seventy two. 264 00:15:21,200 --> 00:15:24,280 Speaker 1: Has it done anything since nineteen seventy two to live 265 00:15:24,360 --> 00:15:27,760 Speaker 1: up to that very little? They are one of the 266 00:15:27,880 --> 00:15:32,400 Speaker 1: major fossil fuel producing states in the country. What is 267 00:15:32,400 --> 00:15:36,400 Speaker 1: the state's response to this? The state says that provision 268 00:15:36,440 --> 00:15:40,560 Speaker 1: of the constitution does not really mean that they have 269 00:15:40,640 --> 00:15:43,880 Speaker 1: to do anything differently than what they're doing. They're saying 270 00:15:43,920 --> 00:15:47,200 Speaker 1: that the young people don't have standing to sue, and 271 00:15:47,560 --> 00:15:50,520 Speaker 1: most importantly, that it's not the job of the courts 272 00:15:50,640 --> 00:15:53,280 Speaker 1: to set the state's energy and climate policy. That it's 273 00:15:53,360 --> 00:15:58,280 Speaker 1: up to the elected legislature and governor. The plaintiffs are 274 00:15:58,800 --> 00:16:03,000 Speaker 1: kids who have difference stories about how climate change affected them. 275 00:16:04,200 --> 00:16:08,920 Speaker 1: That's right. They all have been affected by whether it's 276 00:16:08,960 --> 00:16:14,080 Speaker 1: extreme heat or rainfall or drought or other kinds of issues, 277 00:16:14,120 --> 00:16:17,520 Speaker 1: so that they are working to establish that they have 278 00:16:17,600 --> 00:16:21,720 Speaker 1: been personally affected by climate change. The track, then, I assume, 279 00:16:21,840 --> 00:16:25,520 Speaker 1: has said that they do have standing. Yeah, so far 280 00:16:25,640 --> 00:16:28,600 Speaker 1: they may have to make additional showings in court, but 281 00:16:28,720 --> 00:16:31,160 Speaker 1: so far they have standing, and so we have a 282 00:16:31,200 --> 00:16:35,600 Speaker 1: trial set for June. Is this trial a first? There 283 00:16:35,600 --> 00:16:39,000 Speaker 1: have been almost no trials on climate change at all. 284 00:16:39,400 --> 00:16:41,680 Speaker 1: This is the first one that is asserting anything like 285 00:16:41,800 --> 00:16:45,640 Speaker 1: these theories. There was one case more than twenty years 286 00:16:45,640 --> 00:16:49,200 Speaker 1: ago from Vermont about motor vehicle standards, and another one 287 00:16:49,240 --> 00:16:52,160 Speaker 1: a couple of years ago in New York about securitious disclosure. 288 00:16:52,200 --> 00:16:54,480 Speaker 1: But this is the first one that's really getting into 289 00:16:54,520 --> 00:16:57,960 Speaker 1: the merits of these issues. Why haven't those other cases 290 00:16:58,000 --> 00:17:01,040 Speaker 1: gone to trial? What stopped them? The other cases have 291 00:17:01,240 --> 00:17:04,639 Speaker 1: pretty much all been dismissed by the courts before the trial. 292 00:17:04,720 --> 00:17:08,280 Speaker 1: The courts have found that there weren't adequate legal bases 293 00:17:08,280 --> 00:17:11,240 Speaker 1: to bring them, or that it wasn't the job of 294 00:17:11,280 --> 00:17:13,880 Speaker 1: the courts to decide these kinds of cases. But this 295 00:17:13,960 --> 00:17:19,560 Speaker 1: is a case uniquely under the state constitution of Montana, 296 00:17:20,160 --> 00:17:22,320 Speaker 1: and so it comes up in a much different way. 297 00:17:22,520 --> 00:17:24,359 Speaker 1: But I should add that just a couple of weeks ago, 298 00:17:24,400 --> 00:17:28,320 Speaker 1: the Supreme Court of Hawaii said that the environmental clause 299 00:17:28,359 --> 00:17:32,159 Speaker 1: in the Hawaii Constitution required the state to act on 300 00:17:32,280 --> 00:17:35,480 Speaker 1: climate change that was a legal matter without a trial. 301 00:17:35,800 --> 00:17:38,720 Speaker 1: But we're seeing more and more of these state constitutional 302 00:17:38,760 --> 00:17:41,879 Speaker 1: provisions having real teeth. What kind of testimony do you 303 00:17:41,880 --> 00:17:44,480 Speaker 1: expect to hear a trial. I think we'll hear from 304 00:17:44,600 --> 00:17:49,600 Speaker 1: climate scientists who are brought in by the plaintists to 305 00:17:49,640 --> 00:17:53,320 Speaker 1: testify that climate change is happening, that is mostly a 306 00:17:53,400 --> 00:17:58,520 Speaker 1: result of fossil fuel combustion, that those fossil fuels are 307 00:17:58,520 --> 00:18:02,600 Speaker 1: being burnt because of the policies of the state of 308 00:18:02,840 --> 00:18:06,640 Speaker 1: Montana in part, and that there are things that could 309 00:18:06,680 --> 00:18:10,280 Speaker 1: be done to reduce the use and combustion of fossil fuels. 310 00:18:10,320 --> 00:18:13,760 Speaker 1: There will also be testimony about the negative effects that 311 00:18:13,840 --> 00:18:18,000 Speaker 1: these individual children have suffered. We'll see if Montana tries 312 00:18:18,040 --> 00:18:23,840 Speaker 1: to rebut the scientific evidence. No court in the world 313 00:18:23,920 --> 00:18:28,199 Speaker 1: really has seriously questioned climate science. We'll see if this 314 00:18:28,359 --> 00:18:31,879 Speaker 1: is a first would they be able to have, you know, 315 00:18:32,359 --> 00:18:35,560 Speaker 1: scientists come in and say this is not climate change. 316 00:18:36,200 --> 00:18:40,920 Speaker 1: They can try. There are a very very small number 317 00:18:41,119 --> 00:18:45,840 Speaker 1: of scientists to say that, you know, it's a complete 318 00:18:45,880 --> 00:18:49,680 Speaker 1: opposition to overwhelming scientific consensus. But we'll see what to 319 00:18:49,840 --> 00:18:53,200 Speaker 1: what tactics the state tries to pull out. So this 320 00:18:53,280 --> 00:18:56,560 Speaker 1: case has been nearly a decade in the making. It's 321 00:18:56,560 --> 00:18:59,280 Speaker 1: been going on for that long. Well, the planning has 322 00:18:59,560 --> 00:19:01,520 Speaker 1: for it has been going on for some time, and 323 00:19:01,680 --> 00:19:07,879 Speaker 1: we've seen these cases brought under similar theories going on 324 00:19:07,960 --> 00:19:10,879 Speaker 1: for quite a few years. The plaintiffs, what kind of 325 00:19:10,920 --> 00:19:15,400 Speaker 1: relief are they seeking? Well, initially they're seeking a declaration 326 00:19:15,560 --> 00:19:19,320 Speaker 1: from the court that the policies and actions of Montana 327 00:19:19,440 --> 00:19:24,040 Speaker 1: violate the state constitution and are illegal. But beyond that, 328 00:19:24,080 --> 00:19:28,640 Speaker 1: they're asking the court to require the state to come 329 00:19:28,720 --> 00:19:33,159 Speaker 1: up with a plan to greatly reduce fossil fuel use 330 00:19:33,240 --> 00:19:37,199 Speaker 1: and emissions. We'll see how far the court goes. That 331 00:19:37,200 --> 00:19:42,040 Speaker 1: would be an extraordinary relief. No matter who prevails, it's 332 00:19:42,119 --> 00:19:44,240 Speaker 1: likely this is going to be appealed to the State 333 00:19:44,280 --> 00:19:48,240 Speaker 1: Supreme Court. Yes, I think it's likely that whoever loses, 334 00:19:48,600 --> 00:19:50,960 Speaker 1: the loser will appeal a case to the decision to 335 00:19:51,040 --> 00:19:54,359 Speaker 1: the state Supreme Court. So what a decision for the 336 00:19:54,480 --> 00:19:59,680 Speaker 1: kids in this case have an impact outside Montana? Yes, 337 00:20:00,000 --> 00:20:02,480 Speaker 1: it would be a very strong signal about the potential 338 00:20:02,560 --> 00:20:06,560 Speaker 1: role of the courts. We saw a comparable situation a 339 00:20:06,600 --> 00:20:09,400 Speaker 1: couple of years ago where the Supreme Court of the 340 00:20:09,440 --> 00:20:15,119 Speaker 1: Netherlands ordered that country's government to greatly reduce greenhouse gas emissions, 341 00:20:15,160 --> 00:20:18,920 Speaker 1: and that helps spur quite a few similar lasses in 342 00:20:19,040 --> 00:20:22,680 Speaker 1: other countries around the world. If the plaintiffs win this case, 343 00:20:22,720 --> 00:20:26,520 Speaker 1: we may see more litigation using similar theories in other 344 00:20:27,000 --> 00:20:30,240 Speaker 1: places in the US. You know, I remember the case 345 00:20:30,280 --> 00:20:36,200 Speaker 1: of Juliana the United States, and that also bit young people, 346 00:20:36,240 --> 00:20:40,520 Speaker 1: but against the federal government. What happened to that case? Ultimately, 347 00:20:40,600 --> 00:20:43,200 Speaker 1: the Court of Appeals for the Ninth Circuits, in a 348 00:20:43,280 --> 00:20:47,560 Speaker 1: two to one decision, dismissed the case, saying that it 349 00:20:47,600 --> 00:20:50,320 Speaker 1: was not the role of the courts to be setting 350 00:20:50,440 --> 00:20:54,359 Speaker 1: energy and climate policy. The plaintiffs have now made a 351 00:20:54,440 --> 00:20:58,359 Speaker 1: motion to the district court to amend their complaint to 352 00:20:58,440 --> 00:21:03,919 Speaker 1: seek less traumatic relief, and the court has been considering 353 00:21:03,960 --> 00:21:07,240 Speaker 1: that motion for about a year. That's a long time 354 00:21:07,320 --> 00:21:11,159 Speaker 1: to consider emotion. So why do you think it is 355 00:21:11,240 --> 00:21:17,439 Speaker 1: that children and teenagers are so concerned about climate change? 356 00:21:17,480 --> 00:21:20,240 Speaker 1: When you think about teenagers, to think about them doing 357 00:21:20,280 --> 00:21:23,320 Speaker 1: more fun things than worrying about the climate, Well, it's 358 00:21:23,359 --> 00:21:26,600 Speaker 1: their future. That's a steak. By the time they get 359 00:21:26,640 --> 00:21:30,480 Speaker 1: to be old men and women, the climate could be 360 00:21:30,520 --> 00:21:33,280 Speaker 1: in what much worse shape than it is now? And 361 00:21:33,359 --> 00:21:37,720 Speaker 1: so they have a particularly strong steak in the future, 362 00:21:37,920 --> 00:21:40,200 Speaker 1: much more than those of us who won't be around 363 00:21:40,240 --> 00:21:44,760 Speaker 1: that long. And now let's change the conversation a lot 364 00:21:45,240 --> 00:21:49,359 Speaker 1: to a tiny island in the Pacific trying to do 365 00:21:49,440 --> 00:21:54,240 Speaker 1: something about climate change outside its borders. The tiny Pacific 366 00:21:54,280 --> 00:21:57,280 Speaker 1: island nation of Anahuatu is trying to get in front 367 00:21:57,280 --> 00:22:00,600 Speaker 1: of the International Court of Justice in the Hague with 368 00:22:00,680 --> 00:22:04,640 Speaker 1: the question of what are the legal obligations of the 369 00:22:04,680 --> 00:22:08,440 Speaker 1: major omitting countries to reduce their greenhouse gas emissions so 370 00:22:08,480 --> 00:22:12,240 Speaker 1: that the small island nations don't drown. In order to 371 00:22:12,280 --> 00:22:15,880 Speaker 1: get before the International Court of Justice, it's necessary to 372 00:22:16,240 --> 00:22:19,119 Speaker 1: have a majority vote of the members of the United 373 00:22:19,200 --> 00:22:23,120 Speaker 1: Nations General Assembly. That vote is coming up on Thursday, 374 00:22:23,680 --> 00:22:27,000 Speaker 1: and it now appears that after several years of campaigning, 375 00:22:27,040 --> 00:22:31,040 Speaker 1: Banawatu has the votes and it looks almost certain that 376 00:22:31,080 --> 00:22:33,680 Speaker 1: this motion is going to pass. In the case we'll 377 00:22:33,720 --> 00:22:37,640 Speaker 1: go to the Hay what impact would a ruling by 378 00:22:37,640 --> 00:22:41,720 Speaker 1: the Hay have? So they don't have the ability to 379 00:22:41,840 --> 00:22:47,840 Speaker 1: order countries to do anything. However, many domestic courts, courts 380 00:22:47,840 --> 00:22:50,800 Speaker 1: of a lot of other countries have been issuing rulings 381 00:22:50,880 --> 00:22:55,160 Speaker 1: based on international law and human rights theories of acquiring 382 00:22:55,760 --> 00:22:58,920 Speaker 1: their countries to do more on climate change. A decision 383 00:22:59,040 --> 00:23:01,840 Speaker 1: from the International Court of Justice would be the most 384 00:23:02,040 --> 00:23:06,720 Speaker 1: definitive statement yet about how international law and Newman rights 385 00:23:06,800 --> 00:23:10,480 Speaker 1: law applied a climate change and it could spur even 386 00:23:10,640 --> 00:23:15,760 Speaker 1: stronger decisions by the domestic courts of more countries. To 387 00:23:15,880 --> 00:23:20,400 Speaker 1: someone looking from the outside at these climate change cases, 388 00:23:20,680 --> 00:23:23,280 Speaker 1: it seems as if we hear a lot about the 389 00:23:23,359 --> 00:23:27,879 Speaker 1: cases and then disappointing conclusions for those who want to 390 00:23:27,880 --> 00:23:31,000 Speaker 1: fight climate change. I mean even you know the Supreme 391 00:23:31,000 --> 00:23:34,440 Speaker 1: Court last year in the West Virginia EPA case, our 392 00:23:34,520 --> 00:23:38,479 Speaker 1: climate change activists making headway, or they are making headway, 393 00:23:38,600 --> 00:23:42,320 Speaker 1: not enough. But back in two thousand and seven, the 394 00:23:42,359 --> 00:23:46,040 Speaker 1: Supreme Court, in a case called Masterchusetts versus EPA, said 395 00:23:46,080 --> 00:23:48,640 Speaker 1: that EPA had the power under the Clean Air Act 396 00:23:48,680 --> 00:23:52,800 Speaker 1: to regulate greenhouse gases. Based on that, the Obama administration, 397 00:23:53,400 --> 00:23:57,600 Speaker 1: using the Supreme Court decision, did many things that reduced 398 00:23:57,680 --> 00:24:01,080 Speaker 1: greenhouse gas emissions. There are lots of others out there. 399 00:24:00,920 --> 00:24:04,399 Speaker 1: There's not a magic bullet, there's no one decision that 400 00:24:04,560 --> 00:24:07,240 Speaker 1: is going to solve climate change, but a lot of 401 00:24:07,240 --> 00:24:11,479 Speaker 1: these are incrementally adding up to real progress. And are 402 00:24:11,520 --> 00:24:15,080 Speaker 1: there some states where's working better than others? Well, we 403 00:24:15,200 --> 00:24:19,440 Speaker 1: certainly see a lot of action in states like California, 404 00:24:19,480 --> 00:24:24,040 Speaker 1: which has long been the leader, New York, Massachusetts, Washington, 405 00:24:24,480 --> 00:24:29,040 Speaker 1: all of them are doing much more on climate change 406 00:24:29,040 --> 00:24:31,680 Speaker 1: than most of the rest of the country. These were 407 00:24:31,720 --> 00:24:34,600 Speaker 1: not spurred by lasses. These were mostly spurred by the 408 00:24:35,160 --> 00:24:40,199 Speaker 1: local political support for for action on climate change. And 409 00:24:40,280 --> 00:24:44,280 Speaker 1: do you feel that more people get climate change than 410 00:24:44,880 --> 00:24:47,679 Speaker 1: did let's say, five years ago, More people know about 411 00:24:47,720 --> 00:24:52,280 Speaker 1: it and are attuned to it. Yes, The polling is 412 00:24:52,320 --> 00:24:57,120 Speaker 1: clear that a larger percentage of the public is alarmed 413 00:24:57,119 --> 00:25:00,640 Speaker 1: about climate change and the scientific evidence that's coming out 414 00:25:00,720 --> 00:25:03,040 Speaker 1: from the ends to that alarm. There are still those 415 00:25:03,119 --> 00:25:06,080 Speaker 1: who don't believe it or don't believe it's serious, but 416 00:25:06,160 --> 00:25:09,880 Speaker 1: that seems to be a shrinking number. And internationally, are 417 00:25:09,920 --> 00:25:14,359 Speaker 1: you seeing more use of the courts to combat climate change? 418 00:25:15,520 --> 00:25:19,400 Speaker 1: On Thursday as well, the European Court of Human Rights 419 00:25:19,520 --> 00:25:23,159 Speaker 1: is hearing two climate change cases, one brought by a 420 00:25:23,200 --> 00:25:28,000 Speaker 1: group of senior women in Switzerland and other brought by 421 00:25:28,040 --> 00:25:32,320 Speaker 1: the former mayor of a town in France that's having 422 00:25:32,320 --> 00:25:34,840 Speaker 1: a lot of c level rights problems. So we're seeing 423 00:25:34,920 --> 00:25:38,000 Speaker 1: an intensification of the use of the courts around the 424 00:25:38,000 --> 00:25:41,199 Speaker 1: world to fight climate change. Thanks so much for being 425 00:25:41,240 --> 00:25:44,280 Speaker 1: on the Bloomberg Law Show. That's Michael Gerard, director of 426 00:25:44,280 --> 00:25:47,840 Speaker 1: the Saban Center for Climate Change Law at Columbia Law School. 427 00:25:48,359 --> 00:25:50,680 Speaker 1: And that's it for this edition of The Bloomberg Law Show. 428 00:25:51,040 --> 00:25:53,320 Speaker 1: Remember you can always get the latest legal news on 429 00:25:53,400 --> 00:25:57,679 Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 430 00:25:57,880 --> 00:26:02,000 Speaker 1: and at www dot Blue, Bomberg dot com, slash podcast 431 00:26:02,240 --> 00:26:04,879 Speaker 1: Slash Law, and remember to tune in to The Bloomberg 432 00:26:04,960 --> 00:26:08,320 Speaker 1: Law Show every week night at ten pm Wall Street Time. 433 00:26:08,880 --> 00:26:11,639 Speaker 1: I'm June Grossow, and you're listening to Bloomberg