WEBVTT - Environmental Cases in Supreme Court's New Term 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Bresso from Bloomberg Radio. 0:00:10.600 --> 0:00:13.520 The Supreme Court's new term began today and there are 0:00:13.520 --> 0:00:16.960 two high profile cases coming up this week, a case 0:00:17.040 --> 0:00:21.000 involving a challenge to the regulation of ghost guns tomorrow 0:00:21.200 --> 0:00:24.919 and a death penalty case on Wednesday. Next week, the 0:00:24.920 --> 0:00:28.400 Court will take up the first of three environmental law 0:00:28.480 --> 0:00:31.880 cases on the docket so far. Joining me is an 0:00:31.880 --> 0:00:35.519 expert in environmental law, Pat Parento, a professor at the 0:00:35.600 --> 0:00:38.720 Vermont Law and Graduate School. Pat, I want to begin 0:00:39.000 --> 0:00:43.360 with a case the Supreme Court did not take on Friday. 0:00:43.400 --> 0:00:48.800 It refused to stop Biden administration crackdown on methane emissions. 0:00:49.360 --> 0:00:50.680 Were you surprised by that? 0:00:51.200 --> 0:00:53.800 I wasn't really surprised. The course, we're always holding our 0:00:53.840 --> 0:00:57.080 breath on whether the Court will issue a stay of 0:00:57.200 --> 0:01:00.960 these rules that have major impacts even before there's been 0:01:01.000 --> 0:01:04.120 a court ruling. But the methane rule is so grounded 0:01:04.200 --> 0:01:09.320 in EPA's traditional authority to regulate pollution from the oil 0:01:09.400 --> 0:01:13.080 and gas industry that I would have been really depressed 0:01:13.319 --> 0:01:15.840 had they put a stay on that particular rule. But 0:01:16.000 --> 0:01:17.160 I wasn't surprised that they. 0:01:17.000 --> 0:01:19.280 Did, and just explain the rule before we move on. 0:01:19.680 --> 0:01:21.840 So you know, this is a rule that applies to 0:01:21.959 --> 0:01:27.480 the extraction primarily of gas, which is methane. About seventy 0:01:27.560 --> 0:01:31.120 plus percent of quote natural gas is actually methane, and 0:01:31.280 --> 0:01:33.920 in the process of drilling for it and extracting it 0:01:33.959 --> 0:01:37.080 and transporting it, of course you get a lot of emission. 0:01:37.280 --> 0:01:40.960 Sometimes the emissions they actually flare, you know, because gas 0:01:41.000 --> 0:01:44.080 and oil are oftentimes found in the same deposits. The 0:01:44.160 --> 0:01:46.600 gas off they just burn it off because they don't 0:01:46.600 --> 0:01:49.320 want it, can't use it. But in any case, this 0:01:49.440 --> 0:01:53.320 is a regulation that's designed to reduce the amount of 0:01:53.400 --> 0:01:57.200 emissions that are coming off oil and gas production and 0:01:57.320 --> 0:02:01.360 transportation through the use of technology to capture the gas 0:02:01.400 --> 0:02:04.400 and not allow it to escape. So a pretty traditional 0:02:04.520 --> 0:02:07.360 technological approach to a pollution problem. 0:02:07.640 --> 0:02:12.359 The Justices did take up another environmental case on Friday 0:02:12.840 --> 0:02:16.359 involving a nuclear waste storage site in Texas. 0:02:16.800 --> 0:02:20.240 So this is an enormous problem. What is happening now 0:02:20.360 --> 0:02:23.639 is spent fuel rods, you know, once they've reached their 0:02:23.880 --> 0:02:27.800 useful life, are basically stored on site at all of 0:02:27.800 --> 0:02:31.440 the nuclear power plants all across the country. There's an 0:02:31.560 --> 0:02:37.799 estimated get this one hundred million tons well of spent 0:02:38.200 --> 0:02:44.480 nuclear waste sitting. Sometimes they're in casks, concrete casts. Sometimes 0:02:44.480 --> 0:02:48.480 they're just in containers underground in water to keep them cool. Right, 0:02:48.919 --> 0:02:51.320 So this is not a good situation, right, So the 0:02:51.400 --> 0:02:54.800 idea is to try to move all of this stored 0:02:54.840 --> 0:02:57.760 waste on the site of these nuclear power plants to 0:02:57.840 --> 0:03:03.760 what NRC Nuclear Regulatory Commission calls temporary storage facilities. But 0:03:03.800 --> 0:03:06.840 of course we know that once that waste reaches these 0:03:06.880 --> 0:03:10.320 so called temporary facilities, that's where they're going to stay. 0:03:10.960 --> 0:03:14.480 And one of these facilities is located in Texas, that's 0:03:14.520 --> 0:03:17.120 the subject of the case that the Supreme Court has 0:03:17.200 --> 0:03:21.040 just taken. There's another one proposed across the border in 0:03:21.080 --> 0:03:25.760 New Mexico, in a very rural, actually minority community in 0:03:25.800 --> 0:03:30.040 southeastern New Mexico. So there are two of these proposed 0:03:30.400 --> 0:03:33.920 interim storage facilities that are involved in this case that 0:03:34.000 --> 0:03:36.760 the Supreme Court has taken. All of this, by the way, 0:03:37.040 --> 0:03:41.560 relates to the failure of the proposed Yucca Mountain facility 0:03:41.600 --> 0:03:43.960 that was going to be built in Nevada that was 0:03:44.000 --> 0:03:46.880 going to hold all of the nation's nuclear waste, right, 0:03:47.200 --> 0:03:49.440 and of course that never happened as a result of 0:03:49.760 --> 0:03:53.960 political opposition in Nevada which could never be overcome in Congress. 0:03:54.160 --> 0:03:56.640 So the situation we have is we have a lot 0:03:56.680 --> 0:03:59.160 of nuclear waste and no place to put it. And 0:03:59.200 --> 0:04:01.560 now the Supreme Court has decided to weigh in on 0:04:01.800 --> 0:04:02.960 the case in Texas. 0:04:03.320 --> 0:04:05.840 So I can understand why a state wouldn't want to 0:04:05.880 --> 0:04:09.000 have a nuclear waste facility there. But what is the 0:04:09.240 --> 0:04:10.920 argument that Texas used. 0:04:11.360 --> 0:04:14.480 It's a very complicated argument. There are two parts to it, 0:04:14.840 --> 0:04:17.000 and the Court has taken review at both of them. 0:04:17.360 --> 0:04:22.160 One has to do with whether Texas can actually challenge 0:04:22.600 --> 0:04:26.880 the NRC's approval of the waste disposal facility because Texas 0:04:26.920 --> 0:04:32.800 didn't participate in the very detailed and lengthy administrative proceeding. 0:04:33.279 --> 0:04:37.400 It's like a trial. It's a formal adjudication, but it's 0:04:37.440 --> 0:04:40.520 done by an administrative logidge right instead of a court. 0:04:40.920 --> 0:04:44.080 Texas didn't become a party to that process, and so 0:04:44.120 --> 0:04:47.840 the government is arguing Texas doesn't have standing, if you 0:04:47.880 --> 0:04:50.039 want to put it that way. But in any event, 0:04:50.080 --> 0:04:53.800 they don't have the right to challenge a decision when 0:04:53.800 --> 0:04:59.120 they didn't participate in the administrative proceeding. Texas's response, Attorney 0:04:59.160 --> 0:05:03.719 General packs and responses, Yeah, we didn't because it was 0:05:03.760 --> 0:05:07.040 real complicated and difficult to do. And in any case, 0:05:07.360 --> 0:05:11.000 you know, NRC never had the authority to approve this 0:05:11.120 --> 0:05:16.240 facility anyway. It's what we call an ultra bery's decision, 0:05:16.480 --> 0:05:19.479 a decision on which they have no authority. And there 0:05:19.720 --> 0:05:24.840 is at least theoretically an exception to the requirement that 0:05:24.880 --> 0:05:28.960 you participate in these administrative proceedings if the agency never 0:05:29.000 --> 0:05:31.440 had the authority to do it in the first place. Right, 0:05:31.640 --> 0:05:34.839 So that's argument number one. It's under what's called the 0:05:34.960 --> 0:05:38.560 Hobbs Act, and it's an exception to the requirement of 0:05:38.600 --> 0:05:42.760 participation in that process. So that's argument number one. Can 0:05:42.839 --> 0:05:46.599 Texas actually bring this challenge? But argument number two is 0:05:46.640 --> 0:05:49.560 the big one, and that is that NRC does not 0:05:50.360 --> 0:05:54.359 have the authority at all to approve these so called 0:05:54.680 --> 0:06:00.520 temporary or interim storage facilities. The only authoritiesas Texas that 0:06:00.680 --> 0:06:05.680 NRC has is to authorize storage on site at these 0:06:05.720 --> 0:06:08.359 individual nuclear power plants. They can do whatever they want 0:06:08.640 --> 0:06:11.200 with regard to how the waste is stored on site 0:06:11.760 --> 0:06:15.320 or storage at Yucka Mountain, which, as I've just said, 0:06:15.680 --> 0:06:19.200 has never been approved and is actually not available. Texas's 0:06:19.279 --> 0:06:23.680 argument is NRC can't create these sort of satellite you know, 0:06:23.800 --> 0:06:27.640 nuclear waste facilities all over the country, moving this waste 0:06:27.640 --> 0:06:30.680 thousands of miles, you know, away from the way it's 0:06:30.720 --> 0:06:34.039 being generated. And that's their big argument. And guess what, 0:06:34.640 --> 0:06:38.640 no surprise, the Fifth Circuit agreed with Texas. Now, two 0:06:38.680 --> 0:06:42.719 other circuit courts have considered this question of whether NRC 0:06:42.880 --> 0:06:46.479 has this authority and reached the opposite conclusion. One of 0:06:46.480 --> 0:06:48.920 them was the Tenth Circuit in the West, and one 0:06:48.920 --> 0:06:51.360 of them was the DC Circuit of course, in Washington, 0:06:51.440 --> 0:06:53.880 d C. And so what you have is a split 0:06:53.960 --> 0:06:56.640 in the circuits. Another reason, of course, why the court 0:06:56.680 --> 0:06:59.560 would take a case like this. But what the Fifth 0:06:59.560 --> 0:07:04.279 Circuit did in agreeing with Texas is it invoked here 0:07:04.320 --> 0:07:10.200 it comes the major question doctrine. So is relying on 0:07:10.320 --> 0:07:15.160 the West Virginia versus EPA decision, the very controversial decision 0:07:15.200 --> 0:07:19.320 which struck down EPA's clean Power plan for greenhouse gas emissions, 0:07:19.320 --> 0:07:22.840 of course, and so the oil and gas industry in 0:07:22.880 --> 0:07:26.800 Texas is jumping on board because where this waste disposal 0:07:26.840 --> 0:07:31.040 facility would be located is in the Peance basin of 0:07:31.240 --> 0:07:33.680 Texas where all the oil and gas is and they're 0:07:33.720 --> 0:07:37.480 afraid that if anything were to go wrong. Of course, 0:07:37.640 --> 0:07:41.000 what could go wrong with a nuclear waste disposal facility, 0:07:41.480 --> 0:07:44.560 It would screw up their oil and gas development. So 0:07:44.640 --> 0:07:48.040 this case has all kinds of layers, but at the 0:07:48.080 --> 0:07:52.280 core of it legally is is the Supreme Court once 0:07:52.320 --> 0:07:57.200 again going to strike down an agency's authority under this 0:07:57.560 --> 0:07:59.080 major question doctrine. 0:07:59.280 --> 0:08:04.600 Pat though that they took this to overturn the Fifth Circuit. 0:08:04.680 --> 0:08:07.800 I think so, and in fact, on the merits, I 0:08:07.840 --> 0:08:10.840 think Texas is overreaching here. I think the Court is 0:08:10.880 --> 0:08:15.840 going to be persuaded that because NRC has been approving 0:08:15.880 --> 0:08:20.840 these facilities before, there are some factual distinctions between what 0:08:21.360 --> 0:08:26.400 NRC has done before. But legally NRC has invoked this authority, 0:08:26.600 --> 0:08:30.520 two other circuits have upheld it. And the truth is 0:08:30.760 --> 0:08:34.200 that letting all of this waste remain in all of 0:08:34.240 --> 0:08:37.520 these locations, many of these plants, like the one here 0:08:37.520 --> 0:08:41.439 in Vermont, the Vermont Yankee Plant has been closed for 0:08:41.720 --> 0:08:44.680 eight years now, you know, so many of these plants 0:08:44.679 --> 0:08:48.800 are closed. Just leaving the waste at these plant locations 0:08:48.880 --> 0:08:51.360 is not a good idea. So actually, I think on 0:08:51.440 --> 0:08:54.760 the merits, the Supreme Court may be persuaded. The Fifth 0:08:54.760 --> 0:08:59.320 Circuit has myth applied our major question doctor. Remember Roberts 0:08:59.360 --> 0:09:02.920 said it was an extraordinary doctor, meaning the once in 0:09:02.960 --> 0:09:06.720 a blue moon doctrine, not an everyday doctor. So maybe 0:09:06.760 --> 0:09:08.960 the Supreme Court is going to put some limit on 0:09:09.000 --> 0:09:13.240 the major question doctrine. Conversely, the Supreme Court might stay 0:09:13.280 --> 0:09:16.800 at Texas book. When there's an administrative process and you 0:09:16.920 --> 0:09:20.240 choose not to participate, you're out of court. So I 0:09:20.280 --> 0:09:22.040 think Texas has a tough case. 0:09:22.000 --> 0:09:25.560 Coming up next. More about the Supreme Court's environmental dock 0:09:25.640 --> 0:09:29.960 at this term. This is Bloomberg. The Supreme Court has 0:09:30.120 --> 0:09:33.800 three environmental cases on the dock at this term so far. 0:09:34.240 --> 0:09:38.040 I've been talking to environmental law professor Pat Parento of 0:09:38.080 --> 0:09:41.240 the Vermont Lawn Graduate School. Let's move from Texas to 0:09:41.280 --> 0:09:44.679 San Francisco. Now, this is surprising because you think of 0:09:44.840 --> 0:09:49.040 San Francisco in California as being one of the cities 0:09:49.080 --> 0:09:53.240 and states that are on the cutting edge of environmental regulations. 0:09:53.720 --> 0:09:56.000 At least that's the way I think of them anyway. 0:09:56.280 --> 0:09:58.480 So it's one of the most liberal cities in the country. 0:09:58.559 --> 0:10:02.880 Yeah, So San franci le Go is suing the EPA. 0:10:02.040 --> 0:10:06.679 So it's a reflection of San Francisco's terrible financial situation 0:10:07.400 --> 0:10:09.679 because what they're dealing with or what are called combined 0:10:09.720 --> 0:10:13.240 sewer overflows, and of course these are the combination of 0:10:13.280 --> 0:10:17.840 sewage and stormwater facilities in a major city like San Francisco, 0:10:18.240 --> 0:10:21.840 and they were built at a time when they didn't 0:10:21.880 --> 0:10:26.000 separate the sewage from the storm water, so they were combined. 0:10:26.040 --> 0:10:29.559 So when it rains really heavily, all of that untreated 0:10:29.559 --> 0:10:33.000 waste goes into the river or in San Francisco's case, 0:10:33.320 --> 0:10:36.600 into the ocean. So it's a huge problem. Many different 0:10:36.600 --> 0:10:39.680 cities have dealt with it in different ways. I was 0:10:39.679 --> 0:10:41.959 actually involved at one time in a lawsuit against the 0:10:42.000 --> 0:10:44.920 City of Portland, which didn't have a solution to its 0:10:45.240 --> 0:10:49.320 combined sewer overflow problems. Now it does, in part, I think, 0:10:49.559 --> 0:10:52.960 because of our lawsuit. But our lawsuit actually established the 0:10:53.040 --> 0:10:56.560 precedent that that issue in the San Francisco case, and 0:10:56.640 --> 0:11:00.280 it has to do with what are called narrative standards 0:11:00.320 --> 0:11:04.640 that are contained in the wastewater discharge permits under the 0:11:04.679 --> 0:11:08.199 Clean Water Act. And what it basically says is because 0:11:08.520 --> 0:11:13.400 combined sewer overflows contain basically a soup of pollutants, a 0:11:13.400 --> 0:11:17.000 toxic soup of plutiness. If you think about everything on 0:11:17.120 --> 0:11:21.560 a city's streets, parking lots, if you think about all 0:11:21.600 --> 0:11:25.679 the industrial sites that might be within an urban boundary, 0:11:26.000 --> 0:11:28.840 and when it rains really heavily, all of that crap 0:11:29.240 --> 0:11:31.880 comes off of all of those impervious is that a 0:11:31.920 --> 0:11:35.920 technical term, that's a technical term, that's legal term, is 0:11:35.920 --> 0:11:39.000 not defined in the Clean Water Act. But all the 0:11:39.160 --> 0:11:42.400 junk and crap and yick it comes off a city street, 0:11:42.440 --> 0:11:46.079 all that goes through these CSOs into the water. Okay, 0:11:46.480 --> 0:11:48.880 So you can't come up with a single technology, is 0:11:48.920 --> 0:11:52.080 the point. You can't come up with a numerical standard 0:11:52.280 --> 0:11:56.160 that says, reduce this pollutant by x part per million 0:11:56.240 --> 0:11:58.800 or whatever the standard is, right, So what you have 0:11:58.880 --> 0:12:02.359 to do is say you have to manage that effluent 0:12:02.960 --> 0:12:07.760 by whatever means you can, best management practices, building detention 0:12:07.960 --> 0:12:11.679 facilities to hold some of the rain water before it 0:12:11.679 --> 0:12:14.199 has to be treated so that it doesn't run right 0:12:14.240 --> 0:12:17.120 off into the ocean and so forth. So you have 0:12:17.160 --> 0:12:21.240 to come up with a more sophisticated control program, very 0:12:21.280 --> 0:12:25.080 expensive though you can separate the sewage from the storm water, 0:12:25.360 --> 0:12:29.240 but that means tearing up the existing system, and that's 0:12:29.240 --> 0:12:33.120 incredibly disruptive and expensive, and why San Francisco doesn't really 0:12:33.120 --> 0:12:36.040 want to do it right. But the point is that 0:12:36.080 --> 0:12:41.440 these narrative standards that you must comply with water quality standards. 0:12:41.640 --> 0:12:45.200 We can't give you a specific number. We can tell 0:12:45.240 --> 0:12:47.800 you you're going to have to have a system that 0:12:47.960 --> 0:12:52.440 maintains and doesn't violate water quality standards, which are based 0:12:52.480 --> 0:12:58.520 on uses of water, swimming, fishing, drinking fish, and wildlife whatever. 0:12:58.600 --> 0:13:01.880 There's lots of different beneficial uses of water that we 0:13:01.960 --> 0:13:06.160 put into these so called water quality standards. Every one 0:13:06.360 --> 0:13:10.360 of the national permits that are administered by the state, 0:13:10.400 --> 0:13:14.920 but their EPA derived permits, every one of them has 0:13:14.960 --> 0:13:20.319 to have a condition requiring compliance with water quality standards. 0:13:20.679 --> 0:13:24.280 That's what was being enforced by EPA in the San 0:13:24.320 --> 0:13:29.600 Francisco case. And San Francisco is basically arguing EPA has 0:13:29.679 --> 0:13:35.360 no authority to require compliance with anything other than numerical 0:13:35.520 --> 0:13:39.400 standards that are subject to technological controls. 0:13:40.679 --> 0:13:43.240 Is there Supreme Court precedent in this area? 0:13:44.120 --> 0:13:47.480 The Supreme Court in two different cases, one of which 0:13:47.640 --> 0:13:51.120 was written by the late Justice O'Connor in a case 0:13:51.160 --> 0:13:55.319 in Washington. We call it PUD number one of Jefferson 0:13:55.360 --> 0:13:59.920 County versus the State of Washington's Environmental Board. And in 0:14:00.240 --> 0:14:06.280 that case, Justice O'Connor very explicitly said, narrative standards are fine, 0:14:06.480 --> 0:14:10.040 and you must comply with water quality standards. And that 0:14:10.120 --> 0:14:14.160 means controlling anything that's going into the water that you 0:14:14.280 --> 0:14:18.480 can control, whether or not it's through technology or land juice, 0:14:18.559 --> 0:14:23.080 means whether it means maintaining certain flows of water you 0:14:23.120 --> 0:14:26.200 know that will dilute some of the pollutants and maintain 0:14:26.640 --> 0:14:29.320 these uses and so forth. So that was one of 0:14:29.360 --> 0:14:31.720 the decisions. Then there was a later one, the name 0:14:31.760 --> 0:14:33.960 of which escaped me at the moment, But there was 0:14:34.000 --> 0:14:38.680 another case in which the Supreme Court upheld narrative standards 0:14:39.200 --> 0:14:42.000 under the Clean Water Act. There's a provision in the Act, 0:14:42.040 --> 0:14:47.400 it's section thirteen eleven that explicitly authorizes EPA to set 0:14:47.520 --> 0:14:52.720 other limitations, not just technology effluent limitations, but quote other 0:14:52.800 --> 0:14:58.880 limitations necessary to protect water quality and water quality standards. So, frankly, 0:14:59.080 --> 0:15:05.680 if the Supreme follows its textualist approach to interpreting the statute, 0:15:06.000 --> 0:15:10.080 it should uphold the Ninth Circuit. Now, we know the 0:15:10.160 --> 0:15:14.840 Supreme Court rarely upholds the Ninth Circuit, right, so probably, 0:15:15.320 --> 0:15:17.520 if you're a betting person, you would have to say 0:15:17.960 --> 0:15:20.400 EPA is probably going to lose. It seems like EPA, 0:15:20.800 --> 0:15:24.760 you know, oftentimes loses in this court. So we won't 0:15:24.800 --> 0:15:29.560 know exactly why or how the Supreme Court might decide 0:15:29.600 --> 0:15:32.200 this case, but I think it could if it really 0:15:32.200 --> 0:15:34.800 looks at the language of the statue and the way 0:15:34.840 --> 0:15:38.680 it's been interpreted by the Court in previous cases, it 0:15:38.760 --> 0:15:40.920 may in the end uphold the Ninth Circuit. 0:15:41.560 --> 0:15:46.600 Do you think though, that the Supreme Court's continuing attempt 0:15:46.640 --> 0:15:49.680 to limit agency power and low or bride, you know, 0:15:49.920 --> 0:15:52.440 throwing away the Chevron doctrine, do you think that would 0:15:52.440 --> 0:15:53.480 play in this case? 0:15:54.000 --> 0:15:56.840 Well, they're not relying in this case. EPA is not 0:15:57.000 --> 0:16:02.040 relying on Chevron. That would be foolies, wouldn't it. They're 0:16:02.040 --> 0:16:04.720 basically saying this is the best reading of the statute. 0:16:04.720 --> 0:16:07.640 In fact, what EBA is arguing is it's the only 0:16:08.120 --> 0:16:11.760 reading of the statue. Now, if the Supreme Court can 0:16:11.840 --> 0:16:14.800 find a way around the plain text of the statue, 0:16:15.240 --> 0:16:18.200 then we know we're in serious trouble, right. But I'm 0:16:18.240 --> 0:16:21.320 just saying, my course, I have a bias here because 0:16:21.360 --> 0:16:23.680 I argued this issue many years ago in the Ninth 0:16:23.680 --> 0:16:26.640 Circuit and won it. But my view is that the 0:16:26.720 --> 0:16:31.280 text is clear and unmistakable, and the only thing that 0:16:31.440 --> 0:16:35.720 I thought would be vulnerable is the fact that because 0:16:35.760 --> 0:16:39.840 these are not specific numerical standards, an argument that we 0:16:40.000 --> 0:16:43.480 don't know what we have to do to comply might 0:16:43.520 --> 0:16:44.520 have been a good argument. 0:16:44.840 --> 0:16:45.000 Right. 0:16:45.560 --> 0:16:49.240 But according to the briefing that I've just read, the 0:16:49.600 --> 0:16:53.840 United States the Solicitor General is saying San Francisco abandoned 0:16:53.840 --> 0:16:57.800 that argument. They didn't make that argument in the Supreme Court. 0:16:58.080 --> 0:17:00.920 They did make that argument in the Ninth Circuit, but 0:17:01.000 --> 0:17:04.080 they didn't preserve it and maintain it in the Supreme Court. 0:17:04.200 --> 0:17:06.639 I'll be very interested to listen to the oral argument 0:17:06.680 --> 0:17:10.640 on this case and see if the court, the Supreme 0:17:10.680 --> 0:17:15.760 Court agrees that San Francisco has waived that argument, because 0:17:15.800 --> 0:17:17.919 to me, that would have been a stronger argument. 0:17:18.000 --> 0:17:19.800 Okay, let's move on to a case with a sort 0:17:19.840 --> 0:17:25.800 of strange name. Seven Court Infrastructure Coalition versus Eagle County, 0:17:25.880 --> 0:17:27.639 Colorado's say. 0:17:27.520 --> 0:17:32.399 About well this, Unfortunately, I have to say is another 0:17:32.920 --> 0:17:36.880 NEPA case, National Environmental Policy that case, and we all 0:17:36.920 --> 0:17:40.080 know what nipa's track record is in the Supreme Court, 0:17:40.200 --> 0:17:44.200 which is zero and fifteen, zero and fifteen. 0:17:44.240 --> 0:17:45.679 I knew it was bad, but I didn't know it 0:17:45.720 --> 0:17:46.280 was that bad. 0:17:46.520 --> 0:17:51.119 It's that bad. There have been fifteen different cases petitions 0:17:51.119 --> 0:17:55.640 for a review involving NEPA, and NEPA has never won 0:17:55.920 --> 0:17:58.840 in the Supreme Court. So they're going in with a turm. 0:17:58.960 --> 0:18:00.120 We know where the betting money. 0:18:00.400 --> 0:18:02.520 Yeah, we know where the betting money is on that one. 0:18:02.720 --> 0:18:04.720 But here's what the issue is. And I also have 0:18:04.840 --> 0:18:07.400 some history with this thing too. This is the Surface 0:18:07.480 --> 0:18:14.720 Transportation Board decision. And the STB is the reincarnation of 0:18:14.760 --> 0:18:18.399 the old Interstate Commerce Commission, and so the law that 0:18:18.440 --> 0:18:22.320 the STB administers is as old as the ICC, which 0:18:22.359 --> 0:18:25.919 is the early nineteen hundreds right. Anyway, what the STB 0:18:26.119 --> 0:18:30.400 does is license new rail line. And the rail line 0:18:30.400 --> 0:18:34.040 here is I think eighty five miles long in Utah, 0:18:34.119 --> 0:18:37.200 and it's moving oil, which they call something I'd never 0:18:37.240 --> 0:18:40.640 heard of before, waxy crude oil. It's oil by any 0:18:40.720 --> 0:18:44.440 other name from one place to another in the Uinta 0:18:44.960 --> 0:18:49.399 Basin of Utah. And then from there it gets you know, 0:18:49.560 --> 0:18:52.040 shipped all over the place. It gets shipped to Louisiana, 0:18:52.520 --> 0:18:55.879 it gets shipped to Mobile, Alabama, it might even go 0:18:55.920 --> 0:18:59.520 to the Fugit Sound. It gets into a huge network 0:18:59.560 --> 0:19:02.440 of rail lines that take oil all over the country 0:19:02.560 --> 0:19:05.840 to be refined and made into a variety of products, 0:19:05.880 --> 0:19:08.720 some of which I'm sure would be burned in power plants, 0:19:08.720 --> 0:19:12.119 some of which burned in homes, whatever, whatever products you 0:19:12.200 --> 0:19:15.680 make out of this waxy crude oil. This rail line 0:19:15.720 --> 0:19:19.240 simply puts it into interstate commerce and then it goes 0:19:19.320 --> 0:19:23.520 wherever it goes. So the question in this case is 0:19:23.800 --> 0:19:28.840 what responsibility does STB have to consider what we call 0:19:28.960 --> 0:19:33.719 the upstream effects of this rail line, which means the 0:19:33.760 --> 0:19:38.320 pumping and extraction of this oil product and all of 0:19:38.320 --> 0:19:44.280 the intended environmental consequences of that, plus the downstream effects 0:19:44.400 --> 0:19:47.919 which means where is the oil going, what is it 0:19:47.960 --> 0:19:51.119 going to be used for? And of course, because oil 0:19:51.160 --> 0:19:55.239 is a fossil fuel, how much carbon emissions are going 0:19:55.320 --> 0:19:59.119 to be produced as a result of all of this 0:19:59.280 --> 0:20:03.080 oil coming out of Utah and so ultimately being burned 0:20:03.359 --> 0:20:04.719 in one way or another. 0:20:05.160 --> 0:20:07.280 So where's the law right now on this. 0:20:07.840 --> 0:20:13.320 The SDB has been subject to earlier lawsuits or refusing 0:20:13.400 --> 0:20:19.200 to consider these upstream and downstream effects and specifically climate 0:20:19.320 --> 0:20:24.800 change effects of moving oil, mostly oil, in some cases coal. 0:20:24.960 --> 0:20:26.800 They also, of course move a hell of a lot 0:20:26.840 --> 0:20:31.880 of coal by rail, and SDB lost actually a series 0:20:31.920 --> 0:20:35.199 of cases, one of which I argued years ago, in 0:20:35.240 --> 0:20:38.960 which you know, the course ruled no, SDB, you do 0:20:39.080 --> 0:20:43.520 have to consider these upstream downstream effects, and you have 0:20:43.640 --> 0:20:47.320 to make a reasonable effort to quantify the emissions that 0:20:47.359 --> 0:20:50.120 would be generated by, you know, the fact that you're 0:20:50.119 --> 0:20:53.840 allowing this oil to be moved by rail. Here's what's 0:20:54.040 --> 0:20:59.480 changed in the Fiscal Responsibility Act of twenty twenty three. 0:21:00.240 --> 0:21:05.560 Congress actually, for the first time since nineteen seventy amended NIFA, 0:21:05.920 --> 0:21:11.639 and it did so in a way that required that agencies, 0:21:12.080 --> 0:21:14.880 in trying to consider these sort of i'll call them 0:21:14.880 --> 0:21:21.200 indirect effects of their agency actions, could only consider reasonably 0:21:21.280 --> 0:21:27.920 foreseeable consequences. So the case that the Supreme Court has 0:21:28.000 --> 0:21:33.480 taken ultimately boils down to that question, what are the 0:21:33.600 --> 0:21:41.760 reasonably foreseeable consequences of StB's approval of this eighty five 0:21:41.960 --> 0:21:44.800 mile rail line, and has. 0:21:44.640 --> 0:21:46.600 The Biden administration. 0:21:46.040 --> 0:21:49.760 Weighed in here here's where things get interesting. So the government, 0:21:50.040 --> 0:21:54.000 you know, the Justice Department, a solicitor General has weighed 0:21:54.000 --> 0:21:58.720 in both in support of STB but also in support 0:21:58.760 --> 0:22:02.320 of the petitioners in the case and against the respondents, 0:22:02.359 --> 0:22:06.240 against the environmental groups that brought the case, right, And 0:22:06.480 --> 0:22:10.399 what the Solicitor General's brief is saying is as a 0:22:10.480 --> 0:22:16.040 consequence in part of the twenty twenty three Amendment of NEPA, 0:22:16.320 --> 0:22:21.679 but also arguing even more fundamentally that there has to 0:22:21.720 --> 0:22:26.800 be a limit on an agency's responsibility to consider effects 0:22:26.840 --> 0:22:30.639 over which it really has no control. That's what this 0:22:30.720 --> 0:22:35.000 comes down to. I mean STB can't tell whoever's going 0:22:35.080 --> 0:22:37.399 to get this oil what to do with it or 0:22:37.440 --> 0:22:40.800 not do with it, right, so their authority really is 0:22:40.920 --> 0:22:44.760 quite limited to approving or not this rail line. And 0:22:45.040 --> 0:22:48.720 STB did actually consider some of the upstream and some 0:22:48.880 --> 0:22:51.600 of the downstream effects. They didn't go into the detail 0:22:52.080 --> 0:22:56.320 that the challengers wanted or that the DC Circuit, which 0:22:56.359 --> 0:22:59.439 is the court that heard this case and the petition 0:22:59.520 --> 0:23:02.919 for review comes from the DC Circuit. The DC Circuit 0:23:02.960 --> 0:23:05.400 found a lot of fault with the way SDB did 0:23:05.440 --> 0:23:09.240 it's analysis. It's a six hundred page environmental impact statement, 0:23:09.320 --> 0:23:12.119 so it's not a small thing, right, And there's another 0:23:12.280 --> 0:23:16.880 something like several thousand pages of comments that were delivered. 0:23:16.880 --> 0:23:19.359 So it's a huge record, is my point. It's a 0:23:19.480 --> 0:23:23.880 huge administrative record. It's not a case where the agency 0:23:23.920 --> 0:23:26.760 did nothing. It's a case where the DC Circuit said 0:23:26.920 --> 0:23:30.680 you didn't do enough. So my bet is the Supreme 0:23:30.720 --> 0:23:35.200 Court is going to overrule the DC Circuit, uphold the STB, 0:23:35.760 --> 0:23:37.800 and allow this line to be built. 0:23:37.920 --> 0:23:41.800 And just for a moment, talk about the Supreme Court's 0:23:42.520 --> 0:23:47.640 relationship with environmental laws over the last let's say ten 0:23:48.160 --> 0:23:49.440 or fifteen years. 0:23:49.960 --> 0:23:54.080 Well, it has not been a healthy relationship. Frankly, my 0:23:54.280 --> 0:23:58.840 dear friend, my mentor, Oliver Howse, professor now retired Emeritus 0:23:58.920 --> 0:24:04.480 Professor of Law Tulane University, has just written a book 0:24:04.600 --> 0:24:08.119 that's just out, in fact, called the Most Dangerous Branch 0:24:08.160 --> 0:24:11.440 of All. He goes through at least a dozen Supreme 0:24:11.440 --> 0:24:15.600 Court decisions on the environment and just takes them apart 0:24:16.240 --> 0:24:21.360 and says, as a matter of law, logic, and certainly consequence, 0:24:22.000 --> 0:24:26.880 they have been terrible decisions for protection of the natural environment, 0:24:26.920 --> 0:24:30.959 the human environment, public health across the board. So this 0:24:31.080 --> 0:24:35.000 is I think the most definitive analysis by a very 0:24:35.200 --> 0:24:38.119 very well respected scholar. I mean, he is in the 0:24:38.160 --> 0:24:42.919 pantheon of environmental scholarship, and for someone like him to 0:24:43.200 --> 0:24:46.000 reach a conclusion like that, it's pretty startling. 0:24:46.320 --> 0:24:49.720 The Roberts Court certainly has not been a friend of 0:24:50.200 --> 0:24:53.800 environmental laws or the EPA. Thanks so much, Pat for 0:24:53.840 --> 0:24:57.440 your insights as professor. Pat Parento of the Vermont Law 0:24:57.480 --> 0:25:03.480 and Graduate School. Broker Christine O'Reilly has sued City Group 0:25:03.840 --> 0:25:08.560 along with her employer TPIICAP and a UK based supervisor, 0:25:08.840 --> 0:25:11.960 alleging i CAAP encouraged her to go along with a 0:25:12.080 --> 0:25:16.800 City trader's advances in order to keep orders flowing. In 0:25:16.880 --> 0:25:22.119 court filings last week, both defendants denied O'Reilly's allegations and 0:25:22.320 --> 0:25:27.240 also contended that legal deficiencies would require dismissal of many 0:25:27.280 --> 0:25:31.800 of her claims. Citygroup denied it knew of any inappropriate 0:25:31.880 --> 0:25:35.320 conduct and also said it couldn't be held responsible for 0:25:35.400 --> 0:25:39.040