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Speaker 1: This is Bloomberg Law. Some complicated international law issues here.

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Speaker 1: What's kind of docket is Chief Justice Roberts facing interviews

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Speaker 1: with prominent attorneys in Bloomberg Legal experts joining me is

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Speaker 1: Bloomberg New Supreme Court reporter Greg Store, Neil Devans, a

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Speaker 1: professor at William and Mary Law School, and analysis of

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Speaker 1: important legal issues, cases and headlines. President Trump lost resoundingly

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Speaker 1: in the circuit courts and unusually large number of immigration cases.

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Speaker 1: Bloomberg Law with June Grasso from Bloomberg Radio is at

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Speaker 1: the end of the landmark climate change lawsuit brought by

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Speaker 1: twenty one young people, A panel of the Ninth Circuit

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Speaker 1: Court of Appeals has thrown out the lawsuit. Despite agreeing

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Speaker 1: that the plaintiffs presented compelling evidence that climate change is

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Speaker 1: bringing quote the eve of destruction, the court said it

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Speaker 1: was beyond the power of the judiciary to order a

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Speaker 1: remedial plan. The decision echoed the questioning by Judge Andrew

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Speaker 1: Hurwitz during the oral arguments, you present compelling evidence that

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Speaker 1: we have a real You can make compelling evidence that

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Speaker 1: we have in action by the other two branches of government.

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Speaker 1: It may even rise to the level of criminal neglect.

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Speaker 1: The tough question for me, I suspect for my colleagues

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Speaker 1: is do we get to act because of that? Joining

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Speaker 1: me is Pat Parento, professor at Vermont Law School. Many

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Speaker 1: legal experts didn't even expect this to go the distance.

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Speaker 1: Why is that? Well, it is an extraordinary request that

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Speaker 1: the federal courts ordered the US government to begin reducing

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Speaker 1: greenhouse gas emissions at the level that the scientists say

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Speaker 1: are necessary. You know, courts are reluctant to make that

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Speaker 1: kind of big policy judgment in most cases, and this

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Speaker 1: is the biggest case of all where you're literally talking

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Speaker 1: about the entire American economy and every every sector of it.

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Speaker 1: And it's true that the other two branches are grid locked,

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Speaker 1: and it is true that in the past the court

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Speaker 1: has seen its way clear to intervene when the other

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Speaker 1: branches were stuck, and most notably the desegregation cases. But

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Speaker 1: this one is even bigger than those. So the courts

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Speaker 1: are just reluctant to step over the line under the

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Speaker 1: separation of powers doctrine and order that kind of broad

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Speaker 1: scale relief. Go back and remind us what this lawsuit

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Speaker 1: is about. So this is literally a case under the

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Speaker 1: Constitution the Fifth Amendment substantive due process, in which the

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Speaker 1: youth plaintiffs are arguing they have a fundamental constitutional right

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Speaker 1: to a climate system that quote is capable of sustaining

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Speaker 1: life on earth and ordered liberty. That's kind of a

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Speaker 1: code word for substantive due process, ordered liberty. So it's

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Speaker 1: a fundamental constitutional right. It's unenumerated, of course, like many

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Speaker 1: other rights that we enjoy, including the right to privacy

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Speaker 1: and all that goes with that. So it's a constitutional

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Speaker 1: based case, very different from any other kind of environmental

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Speaker 1: case we've ever seen, and quite sweeping, of course in

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Speaker 1: its dimension. You said that this was bigger or went

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Speaker 1: further than the desegregation cases. How so, Well, it literally

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Speaker 1: is saying the government is affirmatively taking actions that's creating

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Speaker 1: a danger to US citizens, to the U S economy,

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Speaker 1: to U S security by virtue of the fact that

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Speaker 1: they're promoting. The government, I mean, is promoting all of

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Speaker 1: this fossil fuel development, pipelines and oil terminals and coal

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Speaker 1: export terminals and drilling on land, drilling offshore, and the

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Speaker 1: science is saying that has to stop, and we have

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Speaker 1: to phase very very fast to renewable energy, energy efficiency,

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Speaker 1: low carbon energy. We have to reach zero carbon emissions

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Speaker 1: by twenty fifty, say many of the scientists. So all

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Speaker 1: of the actions that the Trump administration is taking to

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Speaker 1: facilitate all of this expansion of fossil fuels is going

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Speaker 1: in exactly the opposite direction from what the science says

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Speaker 1: is necessary. And the science further says that we're approaching

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Speaker 1: these tipping points, as they call them, where you have

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Speaker 1: irreversible climate change that's impossible to stop because of all

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Speaker 1: these feedback loop mechanisms like the melting of the permafrost

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Speaker 1: releasing methane, and the drying of the Amazon turning it

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Speaker 1: into a source of emissions instead of a sink, and

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Speaker 1: so on and so on. And the Ninth Circuit panel

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Speaker 1: in the Juliana case acknowledged all this. It said, the

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Speaker 1: plaintiffs have made a very compelling case that this is

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Speaker 1: an extremely dire emergency that demands government actions. So the

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Speaker 1: court walked right up to the point of saying we

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Speaker 1: need to intervene, and then it backed away. This was

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Speaker 1: a split decision, so one of the judges did believe

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Speaker 1: that the court could handle this. Yes, the dissenting judge,

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Speaker 1: Josephine Stanton She said, this is precisely the kind of

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Speaker 1: case where the Core needs to enforce a constitutional right.

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Speaker 1: For purposes of the Ninth Circus decision, the panel assumed

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Speaker 1: that there was this constitutional right. They didn't actually decide

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Speaker 1: on the merits whether there was such a right, but

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Speaker 1: they said at this stage of the case, which is

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Speaker 1: should we have a trial, we must accept the argument

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Speaker 1: that there is a colorable basis for this constitutional right.

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Speaker 1: So this was an early stage of the case, and

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Speaker 1: all the youth plainists were asking for it was just

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Speaker 1: a trial, and so the dissenting judge said, my goodness,

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Speaker 1: at least we ought to grant these plainists a trial

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Speaker 1: to see what they can prove through the evidence that

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Speaker 1: they have. She said, it is as if an asteroid

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Speaker 1: were barreling towards Earth and the government decided to shut

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Speaker 1: down our only defenses. Yes, And she basically painted a

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Speaker 1: picture of we're standing on a cliff and we need

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Speaker 1: to do something serious to address it, and the courts

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Speaker 1: have a role to do that and shape a remedy.

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Speaker 1: Maybe not everything the planeiffs were asking for, but at

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Speaker 1: least some accounting from the government for why it's continuing

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Speaker 1: to do things that some of its own scientists have

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Speaker 1: said must stop pat The Planetts attorney has said that

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Speaker 1: the case didn't have to have a sweeping remedy that

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Speaker 1: the court described in its decision. They could have done less.

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Speaker 1: That's right. For example, there's a lot of government power

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Speaker 1: in procurement. The government is actually the largest buyer of everything, services, automobiles, buildings.

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Speaker 1: You can just imagine, they're like three fifty thousand federal buildings.

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Speaker 1: So there's there's a whole lot of power that the

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Speaker 1: federal government has to reduce emissions and ensure that the

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Speaker 1: products and services they're buying are using the most efficient

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Speaker 1: technologies to reduce emissions. Plus they have control over all

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Speaker 1: of the offshore oil and gas leasing. They can declare

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Speaker 1: moratorium on at until we begin to see these emissions

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Speaker 1: start to decline. There's probably a hundred things that the

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Speaker 1: federal government could do to make meaningful progress towards achieving

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Speaker 1: carbon neutrality. And that's what the Plainest lawyers were saying,

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Speaker 1: is give us a chance, with our expert testimony to

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Speaker 1: show you what can be done that's reasonable and doable

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Speaker 1: and really ought to be done in the interest not

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Speaker 1: only of climate change, but many many other environmental problems

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Speaker 1: that we're dealing with. That's what they were shooting for,

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Speaker 1: is a trial on the merits and an opportunity to

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Speaker 1: prove that there is a way forward that doesn't cripple

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Speaker 1: the US economy, that actually strengthens it. The plans are

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Speaker 1: going to ask for a full on bank hearing of

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Speaker 1: the Ninth Circuit. Since the judges on this panel were

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Speaker 1: three judges appointed by President Barack Obama, do you think

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Speaker 1: it will help them to have it on bank panel

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Speaker 1: if the Ninth Circuit agrees to that. I'm not sure

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Speaker 1: about that. I think there's a danger this This decision

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Speaker 1: is probably the best that they could possibly hope for with,

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Speaker 1: as you say, three Obama appointees. The panel was clearly

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Speaker 1: sympathetic to these plaintiffs. Even the majority went on and

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Speaker 1: on about how strong a case they've made, a moral case,

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Speaker 1: they said, for the government not acting in the way

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Speaker 1: that it should. You know, the composition of the Ninth

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Speaker 1: Circuit right now, there are ten Trump appointees on the court.

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Speaker 1: There are twenty nine active judges. Ten of them are

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Speaker 1: Trump appointees, thirteen and all are Republican appointees. You need

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Speaker 1: a majority of the Ninth Circuit to get on Bank,

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Speaker 1: which seems unlikely to me. But if they did get

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Speaker 1: on Bank, the risk is they're going to get a

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Speaker 1: worse opinion. They're going to get an opinion that vacates

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Speaker 1: the opinion that's now on the books, including that wonderful

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Speaker 1: dissent by Judge Stanton, and replaced with something that could

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Speaker 1: be far more damaging in terms of standing to bring

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Speaker 1: these kinds of cases. So there's a risk involved in

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Speaker 1: just going for on Bank. There's an even greater risk,

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Speaker 1: of course, as they try to go for review by

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Speaker 1: the US Supreme Court. Explain why this has already been

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Speaker 1: up at the Supreme Court once yes, and the Court

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Speaker 1: declined to intervene when the government asked it to stop

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Speaker 1: the whole case. But it made it very clear that

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Speaker 1: the relief the plainists were seeking was extremely broad and questionable.

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Speaker 1: So the Supreme Court has signaled the Ninth Circuit that

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Speaker 1: this is a case that probably should be dismissed. I

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Speaker 1: think the majority on the panel we're looking and reading

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Speaker 1: the tea leaves, if you will, from what the Supreme

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Speaker 1: Court's order was sending the case back to the Ninth Circuit.

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Speaker 1: It's almost impossible to think that you could get a

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Speaker 1: five member majority opinion of this Supreme Court ruling relief

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Speaker 1: that a very liberal panel of the Ninth Circuit was

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Speaker 1: unable to come to. So again, the risk when you

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Speaker 1: get to the Supreme Court is you get a new

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Speaker 1: opinion that slams the door on other cases that might

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Speaker 1: be brought challenging actions of the government that are making

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Speaker 1: climate change worse. And the way they do that is

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Speaker 1: by saying it's a political question. And all of these

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Speaker 1: different cases that have been making their way through the

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Speaker 1: lower courts would be in jeopardy if the U. S.

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Speaker 1: Supreme Court says the nature of climate change, because of

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Speaker 1: its global dimension, is a matter that the Court should

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Speaker 1: stay out of and it's up to the Congress and

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Speaker 1: the executive branch to deal with it, not the courts.

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Speaker 1: That's the big danger in my mind. So, Pat then

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Speaker 1: this case is basically over. Well, it's not over as

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Speaker 1: far as the plane Off lawyers are concerned. They're on

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Speaker 1: a mission. They're determined to take their chances. I hope

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Speaker 1: they will step back if they lose the on bond petition,

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Speaker 1: they will step back and rethink whether they really should

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Speaker 1: press their luck with the Supreme Court. But I know

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Speaker 1: they're determined to try to do something now in the

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Speaker 1: face of this emergency, and it's just a very excruciating

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Speaker 1: decision for lawyers to have. Demand do they roll the

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Speaker 1: dice and think that they might get a breakthrough opinion,

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Speaker 1: you know, a precedent setting opinion like Brown versus Board

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Speaker 1: of Education, or like the burgher Fell decision for marriage equality,

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Speaker 1: some kind of breakthrough in the law at a time

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Speaker 1: when we need it. That's the promise of what they're

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Speaker 1: trying to do. But the peril is they could end

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Speaker 1: up making bad law for everybody. Let's turn now to

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Speaker 1: the Trump administration last week finalizing a rule to strip

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Speaker 1: away environmental protections for streams, wet lands, and groundwater. Tell

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Speaker 1: me about the new rule. Well, in a nutshell, this rule,

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Speaker 1: with a stroke of a pen, removes protection for over

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Speaker 1: half of the wetlands in the United States that were

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Speaker 1: previously covered or at least arguably protected. There are still

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Speaker 1: when you get down to the individual circumstances of each

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Speaker 1: water body, whether they're in fact covered by the federal

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Speaker 1: are or not, you can get arguments, But in broad scope,

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Speaker 1: this rule makes it clear that literally half of the

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Speaker 1: wetlands of the United States are not protected under the

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Speaker 1: Clean Water Act, and hundreds of thousands of so called

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Speaker 1: headwater streams sometimes called ephemeral streams that only run part

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Speaker 1: of the year in response to major rain events or

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Speaker 1: snow melt and that sort of thing, and even some

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Speaker 1: intermittent streams that might not contribute significantly to the major

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Speaker 1: rivers and lakes in the country. The Clean Water Act

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Speaker 1: over almost fifty years now has protected many of these waters.

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Speaker 1: And it's critical because they are about twenty eight states

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Speaker 1: that have laws on the books that say their laws

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Speaker 1: can't be any stricter than what the Federal Clean Water

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Speaker 1: Act requires. So when you reduce the scope of the

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Speaker 1: Federal Clean Water Act, you automatically revert to these laws.

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Speaker 1: That's in the states that say their laws can't be

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Speaker 1: any stricter. The Trump administration was trying to argue that

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Speaker 1: if you remove federal protection, it's not a big problem

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Speaker 1: because the states are free to step up and fill

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Speaker 1: the gap. But what we've seen is the states haven't

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Speaker 1: done that quite the contrary, So this is really a

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Speaker 1: remarkable rule. It's not getting the kind of analysis in

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Speaker 1: the in the media. Frankly, that it it deserves. This

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Speaker 1: is a very serious matter. One in three Americans depend

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Speaker 1: on waters for drinking water supplies that were formally covered

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Speaker 1: by the Clean Water Act that will not be covered

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Speaker 1: if this rule withstands the legal challenges that are just

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Speaker 1: about to begin. Is it true that this rule not

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Speaker 1: only undoes the Obama rule, but also rules that were

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Speaker 1: in place in the seventies and eighties, all the way

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Speaker 1: back to the seventies. Yes, I was in the courtroom

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Speaker 1: when the first case was decided n R d C

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Speaker 1: Versus Callaway. That's the case where the core of engineers

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Speaker 1: was arguing that the scope of the Clean Water Act

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Speaker 1: was limited to what we call traditionally navigable waters, big waters,

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Speaker 1: and immediately adjacent wetlands and nothing more. And the court

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Speaker 1: in nineteen struck that down and said, no, this new

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Speaker 1: law is much broader than that. So all the way

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Speaker 1: from the mid seventies to just recently, we've seen the

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Speaker 1: courts continually upholding a broad reach of the law. It's

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Speaker 1: true that the United States Supreme Court, in these two

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Speaker 1: controversial decisions, the Swank decision and the Rapanos decision, have

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Speaker 1: raised all kinds of questions about the scope of the Act.

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Speaker 1: But the point is, the Supreme Court has never struck

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Speaker 1: down any of these regulations that date back to the

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Speaker 1: nineteen seventies. They've challenged the application of the regulations in

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Speaker 1: particular cases cases where the wetlands were isolated, as they

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Speaker 1: call them, or cases where the wetlands were very far

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Speaker 1: removed from any major river in the Rapano's case, for example,

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Speaker 1: But the Court has never either definitively said what is

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Speaker 1: the limit of the federal law, nor have they struck

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Speaker 1: down any of these regulations. So the Trump rule is

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Speaker 1: now the first time that we have an administration adopting

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Speaker 1: a rule that cuts way back on the Clean Water

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Speaker 1: Act without any clear judicial precedent for what they're doing. So,

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Speaker 1: Pat you mentioned that there will likely be challenges. What

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Speaker 1: would the legal basis for a challenge b Well, the

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Speaker 1: basis is going to be the historical interpretation and the

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Speaker 1: sharp break from that forty seven years worth of law

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Speaker 1: and interpretation. And the Supreme Court has said when you

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Speaker 1: break from a traditional interpretation of the law like that,

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Speaker 1: you need to have really strong justification, like, for example,

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Speaker 1: there's been a change in the way the states have

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Speaker 1: been regulating these waters, so that the federal law is

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Speaker 1: no longer as necessary. But as I've just said, that's

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Speaker 1: not true, or maybe a change in the science that

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Speaker 1: says that these headwater areas are not that important, but

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Speaker 1: that's certainly not true. The e p A under Obama

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Speaker 1: did the most comprehensive analysis of the importance of these

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Speaker 1: so called headwater streams and what's called the Connectivity Report,

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Speaker 1: And even the Science Advisory Board that Trump has appointed

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Speaker 1: has criticized this rule cutting back on protecting these headwaters

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Speaker 1: and these wetlands as being not based on science. So

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Speaker 1: there are lots of reasons why the Trump administration rule

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Speaker 1: is breaking from prior interpretations, is not supported by the science,

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Speaker 1: is not supported by the economic value of the resources

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Speaker 1: that they're writing off, and so forth. So this will

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Speaker 1: be a classic challenge to whether the action that's being

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Speaker 1: taken is reasonable and it's based on a strong record

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Speaker 1: or not. Thanks for being on Bloomberg Law, Pat. That's

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Speaker 1: Pat Parento, a professor at Vermont Law School.