Speaker 1: Today on Parts per Billion, we head up to the
Speaker 1: Supreme Court and see how the rest of its term
Speaker 1: is looking. Do they have any environmental cases coming up? Oh? Yeah,
Speaker 1: you Betjam Hello and welcome back once again to Parts
Speaker 1: per Billion, the Environmental podcast from Bloomberg Law. I'm your host,
Speaker 1: David Schultz. So today we're talking about the United States
Speaker 1: Supreme Court. We're about a third of the way through
Speaker 1: its current term. We've already seen oral arguments on a
Speaker 1: few environmental cases, but get ready to see several more.
Speaker 1: The Court just agreed to hear two more environmental cases
Speaker 1: last week. That makes six cases currently outstanding on its
Speaker 1: docket right now. Bloomberg Law's Ellen Gilmer recently wrote a
Speaker 1: story rounding up all these cases and summarizing the storylines
Speaker 1: behind them. I spoke to her about why the Court's
Speaker 1: environmental docket is so active this term. But first I
Speaker 1: started by asking her about a climate change case that
Speaker 1: the justices will hear one day before President elect Biden
Speaker 1: takes office, giving the Trump administration one final chance to
Speaker 1: argue before the Supreme Court. It's just an issue of timing. Yeah,
Speaker 1: it's an interesting climate change related case. It's really a
Speaker 1: procedural case that's at the Supreme Court, and that's when
Speaker 1: the Supreme Court scheduled arguments, So the Trump administration has
Speaker 1: a chance to argue alongside the oil and gas industry
Speaker 1: in that case. It's a lawsuit that Baltimore filed against
Speaker 1: a number of oil and gas companies a couple of
Speaker 1: years ago. This is the City of Baltimore, the City
Speaker 1: of Baltimore saying that the industry should be on the
Speaker 1: hook financially for the local impacts of climate change, so
Speaker 1: flooding and heat waves that Baltimore is experiencing. So, without
Speaker 1: going into all the procedural details, there's this big procedural
Speaker 1: mess that's been happening in the litigation. There's a fight
Speaker 1: over state versus federal court and where the case belongs,
Speaker 1: and there are some really technical issues related to that
Speaker 1: that have come up in several different court cases. And
Speaker 1: so the Supreme Court decided to get involved in that mess.
Speaker 1: But I guess you know you mentioned this is an
Speaker 1: issue of timing. I wonder if the fact that the
Speaker 1: Trump administration lawyers are allowed to argue in this case
Speaker 1: will have any impact on the outcome, or if it's
Speaker 1: just a quirk of you know, who gets to argue
Speaker 1: the government side, Well, the Supreme Court pretty much always
Speaker 1: grants the Solicitor General's requests to argue in a case,
Speaker 1: so it's not surprising that it got granted here. It's
Speaker 1: not clear that the government's involvement will be a deciding
Speaker 1: factor in the case. It's a very wonky issue of
Speaker 1: jurisdiction and pellet courts and the scope of a pellet review.
Speaker 1: So it's likely that the justices on the Supreme Court
Speaker 1: have like some pretty strong ideas about all of that already.
Speaker 1: But it is I mean, it's certainly interesting just to
Speaker 1: see the timing because the incoming Biden administration it hasn't
Speaker 1: come in on this specific procedural issue that's before the Court,
Speaker 1: but it has more generally expressed support for climate litigation
Speaker 1: from cities like Baltimore. Okay, let's get into what's happening
Speaker 1: after January twentieth and the inauguration. You had a great
Speaker 1: story recently just sort of going into how the Court's
Speaker 1: environmental docket for this year is pretty full. But I
Speaker 1: get the sense that while they have a lot of
Speaker 1: environmental cases, they don't have any big blockbusters, like there's
Speaker 1: no Massachusetts vipas on their docket? Is that the case?
Speaker 1: Am I reading that right? I think that's a good
Speaker 1: way to put it. There is definitely no mass VPA.
Speaker 1: There is definitely not even you know, a County of
Speaker 1: Maui type case, which was a big Clean Water Act
Speaker 1: case last term. There's nothing that's at that level. But
Speaker 1: there are some really important cases. And after the Supreme
Speaker 1: Court recently added two more environmental cases to its docket,
Speaker 1: we decided, like, WHOA, there's a lot going on here.
Speaker 1: We better break all this down because there are actually
Speaker 1: so so many interesting ones to watch right now. We
Speaker 1: already talked about the Baltimore case, which is kind of
Speaker 1: a climate adjacent case. And then we've got a couple
Speaker 1: of water cases where you have states that are fighting
Speaker 1: with each other over different shared water basins and who
Speaker 1: gets the right to how much water. One of those
Speaker 1: cases has already been decided, another one is set for
Speaker 1: oral argument next month, and we should say we're going
Speaker 1: to get into that in just a second. That's in
Speaker 1: a really interesting case, definitely. And then the Supreme Court
Speaker 1: also just added a case that has to do with
Speaker 1: the Renewable Fuel Standard, which is a fun wonky issue
Speaker 1: and another case that has to do with a superfund,
Speaker 1: which is interesting because the Supreme Court historically hasn't been
Speaker 1: super interested in superfund cases. But it just took up
Speaker 1: a different super fun case last term, and here it
Speaker 1: is again taking up a super fun case. This one
Speaker 1: has to do with Guam and who and whether Gua
Speaker 1: or the United States should have to pay to clean
Speaker 1: up this big landfill mess. So I want to focus
Speaker 1: on the renewable fuel case just because that's something that
Speaker 1: I'm interested in. The super fun case sounds very interesting,
Speaker 1: but you know, let's just let's talk about this one.
Speaker 1: For those that aren't familiar, the renewable fuel standard is
Speaker 1: a program that the government has that mandates that, you know,
Speaker 1: a certain percentage of gasoline be made with renewable fuels
Speaker 1: and mainly that's ethanol made from corn. And you know,
Speaker 1: this has created a lot of conflict between the fossil
Speaker 1: fuel industry and oil refiners versus farmers. Farmers want their
Speaker 1: their percentage to be higher, oil refiners want the percentage
Speaker 1: to be lower. So what's this case before the Supreme
Speaker 1: Court about? And could this actually like, you know, change
Speaker 1: the way this program works or is this just you know,
Speaker 1: a technical case on the margins. It's a narrow issue,
Speaker 1: but it has really high stakes. It would change, It
Speaker 1: could change the way EPA gives some refiners waivers, gives
Speaker 1: them a break from meeting annual quotas. So basically, like
Speaker 1: you said, the renewable fuel standards, that's these annual quotas
Speaker 1: for blending and biofuels, and refiners can either meet the
Speaker 1: quota or they can purchase credits. But sometimes EPA will
Speaker 1: issue a waiver to say, like we see that this
Speaker 1: is going to be really hard on you, We're going
Speaker 1: to give you a break. And there's a bunch of
Speaker 1: criteria that feeds into that. About a year ago, there
Speaker 1: was a really important decision from the Tenth Circuit, which
Speaker 1: is the circuit court that's based in Denver, that said,
Speaker 1: the eligibility criteria for these waivers is actually super like
Speaker 1: much narrower than what EPA had been applying. So the
Speaker 1: Tenth Circuit said a refiner could only get a waiver
Speaker 1: if it had been continually receiving waivers in the past.
Speaker 1: So that's good news for farmer, for corn farmers, especially
Speaker 1: bad news for oil refiners. So oil refiners say that, like,
Speaker 1: if this is the standard and if this idea, if
Speaker 1: this approach were applied nationwide, only a handful of us
Speaker 1: would even ever be eligible, and like some of us
Speaker 1: would go out of business. Small refiners would go out
Speaker 1: of business. So it's very high stakes. The refineries are
Speaker 1: extremely excited that the Supreme Court decided to take up
Speaker 1: their case and hear them out, and so that's definitely
Speaker 1: one one to watch. It's not going to restructure the
Speaker 1: whole the standards, but it is going to affect the
Speaker 1: way their apply the way that the waivers for the
Speaker 1: standards are handed out. And before we move on from this,
Speaker 1: it's I think it's always notable to point out that
Speaker 1: this is an issue that former talk show host and
Speaker 1: automobile enthusiast Jay Leno is very passionate about. He is
Speaker 1: against the renewable Fuel Standard because apparently he says that
Speaker 1: putting fuel that contains ethanol into cars produces their performance
Speaker 1: and that is something that he doesn't like. So Jay
Speaker 1: Leno Renewable Field Standard Cruisader may be watching this case.
Speaker 1: Let's move on to a case that's going to be
Speaker 1: come up. It's gonna come up for oral argument next month.
Speaker 1: This is a case I think the t the caption
Speaker 1: is Florida v. Georgia, and this is over water. As
Speaker 1: you mentioned earlier, this has been going on forever. What's
Speaker 1: you know? Briefly outline this and talk about the steaks here.
Speaker 1: In short, it's about a shared water basin. It's the
Speaker 1: Appalachicola Chattahoochee Flint River basin which flows from Georgia to Florida.
Speaker 1: And in essence, Florida says Georgia is using too much water.
Speaker 1: That would be Georgia businesses and farmers in particular are
Speaker 1: using too much water. There's not enough water going downstream,
Speaker 1: and Florida's valuable oyster industry in the Panhandle is suffering
Speaker 1: because of that. Right, they're saying that the estuary that
Speaker 1: dumps into the Gulf is drying up right, So the
Speaker 1: stakes are obvious for Florida and Georgia. How much water
Speaker 1: do the Georgia farmers get to use, how much water
Speaker 1: gets to go downstream and is available for where the
Speaker 1: oysters and the oyster industry, and kind of zooming out
Speaker 1: and looking at it more broadly, what we've heard from
Speaker 1: water law experts is that cases like this in general,
Speaker 1: these kind of water fights between states are likely to
Speaker 1: increase as climate change stresses water supplies. As both climate
Speaker 1: change and kind of population density patterns and stuff. As
Speaker 1: those different changes stress existing water supplies, you'll see more
Speaker 1: fights over which state has the right to how much water.
Speaker 1: So Florida Georgia is just an example of one of
Speaker 1: those fights happening in the East, and it could really
Speaker 1: set the tone for how much leverage a downstream state
Speaker 1: like Florida has in this kind of fight. I actually,
Speaker 1: I knew it was very high stakes for Florida and Georgia,
Speaker 1: but that's even higher than I thought. This could set
Speaker 1: a precedent for other states. And you know, you're right,
Speaker 1: we're going to see a lot more of these state
Speaker 1: versus state lawsuit lawsuits over water in the future. That's
Speaker 1: that's a big deal. So that's coming up next month. Finally,
Speaker 1: let's take a step back here. You know, as we
Speaker 1: mentioned at the top, you know, the Court is accepting
Speaker 1: a lot more environmental cases. It seems like, or maybe
Speaker 1: you know, just slightly more than usual. Why do you
Speaker 1: think that is? It seems like the current court as
Speaker 1: it's configured, seems kind of eager to jump into these
Speaker 1: questions on environmental statues. Is that the case and it's
Speaker 1: so why I'm not sure if there's really anything to
Speaker 1: be read from the cases on the court stock at
Speaker 1: this term. I do think the Maui case from the
Speaker 1: last term, which focused on the scope of the Clean
Speaker 1: Water Act, I think that was definitely an example of
Speaker 1: the Court looking at an environmental statute that feeds like
Speaker 1: an endless stream of litigation in saying like, we need
Speaker 1: to clarify this at least this one particular particular conflict
Speaker 1: that's rising out of it. So that was an example
Speaker 1: of it. These cases this term are all just a
Speaker 1: little bit wonkier and don't get to the core of
Speaker 1: the statutes quite as deeply, So I'm not sure it
Speaker 1: indicates anything like that. It's more just a matter of
Speaker 1: circumstance that all of these high stakes fights were brewing
Speaker 1: at the same time and the Court needed to fill
Speaker 1: up its stocket. That's a good point. I guess. You know,
Speaker 1: you and I cover the environment, and so we always
Speaker 1: hear about all these statutes that are really vague and
Speaker 1: where the case law is confusing. But I'm sure there
Speaker 1: are other aspects of the law that you and I
Speaker 1: don't cover where there's also vague case law and vague statutes.
Speaker 1: So you know, the court always has a lot on
Speaker 1: its stocket. So it sounds like what you're saying is just,
Speaker 1: you know, just potentially a coincidence that we have all
Speaker 1: these cases, you know, and there's not we can't necessarily
Speaker 1: read into anything just yet. I would watch for I
Speaker 1: would watch the docket in the future for some of
Speaker 1: those bigger cases because I do think the justices, many
Speaker 1: of the justices are eager to dig into some of
Speaker 1: the more contentious provisions of environmental statutes, especially in the
Speaker 1: Clean Air Act. So I think we'll see as the
Speaker 1: Biden administration starts to enact its policies and unwind Trump
Speaker 1: era policies, we'll see some new fights set up, and
Speaker 1: we'll see more of those like really high stakes environmental
Speaker 1: law issues that the justices, like maybe have been eager
Speaker 1: to get their hands on. That's it for today's episode
Speaker 1: of Parts per Billion. If you want more environmental news,
Speaker 1: check us out on Twitter. We use a relatively easy
Speaker 1: handle to remember. It's just ad environment. That's our handle
Speaker 1: ad environment. Just that if you want to talk to me,
Speaker 1: I'm at David B. Schultz. Today's episode of Parts Pavillion
Speaker 1: was produced by myself and Josh Block. Parts per Billion
Speaker 1: was created by Jessica Coombs and Rachel Daegel. The music
Speaker 1: of today's episode is a message by Jazar and running
Speaker 1: by Enrico Pierra Nuzzi and Silvano Chiamente. They were used
Speaker 1: under Creative Commons license. Thank you everyone so much for listening.
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