WEBVTT - Idaho Water Battle, Abortion Changes Across Country 0:00:02.840 --> 0:00:07.680 This is Bloomberg Law. Some complicated international law issues here. 0:00:07.920 --> 0:00:11.760 What kind of docket is Chief Justice Roberts facing interviews 0:00:11.800 --> 0:00:14.960 with prominent attorneys and Bloomberg legal experts. Joining me is 0:00:15.000 --> 0:00:18.759 Bloomberg New Supreme Court reporter Greg Store, Neil Devon's professor 0:00:18.800 --> 0:00:21.840 at William and Mary Law School, and analysis of important 0:00:21.920 --> 0:00:25.680 legal issues cases and headlock. Is this essentially the fifth 0:00:25.680 --> 0:00:29.080 circuit haunting he has presided over a so called hot 0:00:29.160 --> 0:00:32.519 bench at the Supreme Court. Bloomberg Law with June Grasso 0:00:32.800 --> 0:00:39.839 from Bloomberg Radio. Welcome to the Bloomberg Law Shop. I'm 0:00:39.920 --> 0:00:43.000 Kimberly Robinson and I'm Gregg's Store. We're in for June 0:00:43.040 --> 0:00:46.080 Grasso coming up on the show. The Supreme Court prepares 0:00:46.159 --> 0:00:48.720 to consider scaling back the reach of the Clean Water Act, 0:00:49.280 --> 0:00:52.120 but first, in a new court filing, the Justice Department 0:00:52.159 --> 0:00:54.200 says a few of the documents that see from Donald 0:00:54.200 --> 0:00:57.840 Trump's home may be covered by attorney client privilege. With 0:00:57.920 --> 0:01:00.440 us to discuss the filing and what's next in the 0:01:00.440 --> 0:01:04.679 Marl Lagas search Saga is Bloomberg News reporter so Wee Tillman, Zoe, 0:01:04.800 --> 0:01:07.240 thanks for being here. Tell us about this court filing Zoe, 0:01:07.319 --> 0:01:09.240 what do we learn today? You know, we learned a 0:01:09.280 --> 0:01:13.080 couple of key things, the first being that investigators are 0:01:13.160 --> 0:01:16.640 quite far along in going through the documents that were seized, 0:01:17.000 --> 0:01:18.959 to the point that they could tell a judge in 0:01:19.000 --> 0:01:23.160 Florida that their privileged team had gone through the documents 0:01:23.200 --> 0:01:27.120 that were seized, had identified that some were potentially attorney 0:01:27.120 --> 0:01:30.600 client privileged material, and that they were already going through 0:01:30.640 --> 0:01:32.880 the process that they had previously laid out for what 0:01:32.959 --> 0:01:36.080 to do with that information. It was a strong suggestion 0:01:36.200 --> 0:01:38.920 to the judge perhaps that this is all moot and 0:01:39.160 --> 0:01:41.600 far too late in the game to bring in someone 0:01:41.680 --> 0:01:46.360 now to to unring the bell of giving investigators access 0:01:46.400 --> 0:01:50.640 to these documents. So, putting aside the special master issue, 0:01:51.720 --> 0:01:53.880 what's the normal procedure that the d o J goes 0:01:53.920 --> 0:01:57.160 through when dealing with privileged documents like this? Yeah, so 0:01:57.200 --> 0:02:01.280 it's pretty common for a federal and instigation, especially one 0:02:01.320 --> 0:02:03.680 like this, to have what's known as a taint team 0:02:03.760 --> 0:02:07.000 or a filter team or privileged team, which is a 0:02:07.000 --> 0:02:11.480 collection of usually FBI agents and prosecutors who are not 0:02:11.760 --> 0:02:15.520 the lead prosecutors in case agents in an investigation, And 0:02:15.560 --> 0:02:17.680 the purpose of that is so that the folks who 0:02:17.720 --> 0:02:20.920 are ultimately prosecuting the case, they don't see something that 0:02:20.960 --> 0:02:25.000 could get them disqualified or knocked out of the investigation 0:02:25.600 --> 0:02:28.799 at some later critical phase, or I think worst case 0:02:28.800 --> 0:02:32.040 scenario for the Justice Department jeopardized the entire integrity of 0:02:32.080 --> 0:02:37.240 the investigation with less clear here is this the concept 0:02:37.240 --> 0:02:41.600 of executive privilege and whether that type of privilege is 0:02:41.639 --> 0:02:45.560 something that the Justice Department could or should filter for 0:02:45.800 --> 0:02:48.320 as they're going through these documents. That's not typically what 0:02:48.440 --> 0:02:50.960 a taint team would be looking for. So that's a 0:02:50.960 --> 0:02:53.399 big question mark. And the Justice Department did not address 0:02:53.560 --> 0:02:57.359 that issue, which Trump has raised in the filing today. 0:02:57.680 --> 0:03:03.000 So what about the documents that are clearly not privileged? Um, 0:03:03.440 --> 0:03:06.320 which may be significant. We don't really know how much 0:03:06.360 --> 0:03:10.400 we're talking about here. Um. Is there any arguments that's 0:03:10.440 --> 0:03:14.520 even on the table that uh that that former President 0:03:14.520 --> 0:03:17.240 Trump might be able to get those documents back. There's 0:03:17.600 --> 0:03:21.160 a little precedent for this. Early on, Trump had complained 0:03:21.720 --> 0:03:24.840 that they had taken his some of his passports and 0:03:24.880 --> 0:03:27.520 those were returned. I think that's an example of what 0:03:27.760 --> 0:03:30.440 is you know, generally, what it's supposed to happen, where 0:03:30.480 --> 0:03:33.640 if something gets caught up in a seizure that they 0:03:33.639 --> 0:03:36.960 don't have legal authority to take, they will give it back. Uh. 0:03:37.000 --> 0:03:39.160 And that appears to have happened here. You know, Trump 0:03:39.200 --> 0:03:43.160 has not suggested there any other specific categories of documents 0:03:43.200 --> 0:03:47.560 that he should have back for some other reason besides privilege. Um. 0:03:47.640 --> 0:03:50.040 And the legal argument for that I think would be 0:03:50.120 --> 0:03:52.720 a bit murky. You know, at the point that there's 0:03:52.760 --> 0:03:55.400 no contest to the legality of the search warrant and 0:03:55.440 --> 0:03:58.880 the seizure itself, you know, at that point those documents 0:03:58.880 --> 0:04:02.160 have been seized are sue into that authority. So privilege 0:04:02.160 --> 0:04:04.280 is really one of the few carve outs to their 0:04:04.320 --> 0:04:08.600 ability to use what they took under the umbrella of 0:04:08.800 --> 0:04:11.160 categories that they a judge gave them the green light 0:04:11.200 --> 0:04:13.760 to take. And so, what, if anything, do we know 0:04:13.920 --> 0:04:17.800 about how much classified information was seized by the Justice 0:04:17.839 --> 0:04:22.080 Department on August eight more logo, Yeah, so we don't 0:04:22.120 --> 0:04:24.680 know a whole lot about the substance. We know that 0:04:24.720 --> 0:04:27.800 there were I think it was roughly twenty boxes and 0:04:27.880 --> 0:04:32.520 within those eleven sets of classified materials with different markings 0:04:32.520 --> 0:04:38.040 indicating levels of classified information. UM. And so you know, 0:04:39.480 --> 0:04:41.520 we don't have much more than that, they don't have 0:04:42.040 --> 0:04:45.160 more specific markings that we've been made aware of sort 0:04:45.160 --> 0:04:48.919 of similar, not quite similar to what we've learned about 0:04:48.960 --> 0:04:51.960 documents that were seized in January and returned to the 0:04:52.040 --> 0:04:55.560 National Archives from our lago where there's Justice Department revealed 0:04:56.000 --> 0:04:58.520 that some of those had markings related to the foreign 0:04:58.520 --> 0:05:04.359 intelligence surveillance at door, markings related to intelligence from human sources. 0:05:04.520 --> 0:05:06.240 You know, we've got a bit more detail about the 0:05:06.320 --> 0:05:09.360 level of sensitivity of some of those documents. We don't 0:05:09.360 --> 0:05:14.000 have that yet for the August eight collection. Remind us 0:05:14.120 --> 0:05:18.080 what potential criminal charges could grow out of these documents. Yeah, 0:05:18.120 --> 0:05:20.440 I think what's important to remember is that the charges 0:05:20.560 --> 0:05:24.160 that the Justice Department cited are not specific to classified information. 0:05:24.279 --> 0:05:28.560 They have to do with generally mishandling government records, information 0:05:28.600 --> 0:05:31.800 related to national defense, which can be uh an even 0:05:31.839 --> 0:05:35.599 broader category of information. It's not just about what happened 0:05:35.600 --> 0:05:39.200 to information that's classified. It's about the handling of sensitive 0:05:39.240 --> 0:05:43.000 government records. And then finally, obstruction, you know, whether there 0:05:43.080 --> 0:05:46.800 was evidence of obstructing an investigation, which is separate and 0:05:46.839 --> 0:05:49.240 apart from the question of the documents and how they 0:05:49.240 --> 0:05:51.839 were handled. At the beginning So this is all happening 0:05:51.880 --> 0:05:54.559 at the same time that the Justice Department is also 0:05:54.640 --> 0:05:59.640 pursuing a grand jury investigation centering on Trump's attempts to 0:05:59.680 --> 0:06:02.839 over earned the election result. Is there any reason to 0:06:02.880 --> 0:06:05.599 think that one of those two investigations is going to 0:06:06.360 --> 0:06:08.800 come before the other? You know, I think that in 0:06:08.960 --> 0:06:12.520 green lighting the seeking of a search warrant for the 0:06:12.560 --> 0:06:15.880 home of a former president, the Attorney General has, you know, 0:06:16.279 --> 0:06:19.000 put this investigation at the front of the queue in 0:06:19.120 --> 0:06:22.520 terms of public awareness and the public consciousness and the 0:06:22.560 --> 0:06:25.920 sense of urgency that they seem to feel around this investigation. 0:06:26.400 --> 0:06:29.279 Whether one results in charges before the other, or whether 0:06:29.400 --> 0:06:32.159 anything results in charges ever remains to be seen. But 0:06:32.240 --> 0:06:35.080 I think they've conveyed more of a sense of urgency 0:06:35.160 --> 0:06:38.839 now around these records as opposed to the January six investigation. 0:06:39.560 --> 0:06:43.040 That's Bloomberg News reporters Zoe Tillman, Zoe, thanks for joining us. 0:06:43.200 --> 0:06:46.920 You're listening to Bloomberg Law. Up next, property rights advocates 0:06:46.920 --> 0:06:48.880 are hoping the Supreme Court will put new limits on 0:06:48.920 --> 0:06:52.400 the Clean Water Act. I'm Greg Store and I'm Kimberly Robinson. 0:06:52.880 --> 0:07:04.960 This is Bloomberg. Yeah, this is Bloombird. Law with June 0:07:04.960 --> 0:07:09.960 Grasso from Bloomberg Radio. I'm Gregg Store and I'm Kimberly Robinson. 0:07:10.280 --> 0:07:13.440 We're in for June Grasso. We turned away from Florida 0:07:13.520 --> 0:07:15.840 now and onto Idaho, which is the center of a 0:07:15.840 --> 0:07:18.040 water dispute that the U. S. Supreme Court is set 0:07:18.080 --> 0:07:21.480 to here in October. Joining us is Georgetown law professor 0:07:21.520 --> 0:07:23.920 William Busby, who wrote a front of the court brief 0:07:24.120 --> 0:07:26.040 in support of the e p A here. Thanks so 0:07:26.120 --> 0:07:30.000 much for joining us. I'm pleased to join you so, William. 0:07:30.080 --> 0:07:32.760 This case stretches all the way back to two thousand 0:07:32.840 --> 0:07:35.480 and eight and is actually on its second trip to 0:07:35.520 --> 0:07:37.920 the High Court. What is it that the plaintiff, the 0:07:38.240 --> 0:07:43.160 second Family, is fighting about? Um This case focuses on 0:07:43.200 --> 0:07:48.280 this question of where federal power begins and ends to 0:07:48.360 --> 0:07:51.600 protect what are called waters of the United States, and 0:07:51.640 --> 0:07:56.520 in particular um our lands that are wet lands or 0:07:56.640 --> 0:07:59.440 alleged to be wetlands. Can they be protected by the 0:07:59.520 --> 0:08:04.400 federal government under the Clean Water Act? The sackets the 0:08:04.480 --> 0:08:08.080 homeowners here property owners. They argue the federal government has 0:08:08.120 --> 0:08:11.960 no power to protect their property from filling UH and 0:08:12.120 --> 0:08:14.960 e p A and the Army Corps of engineers. Uh, 0:08:15.120 --> 0:08:18.720 they view this property as a wetland subject to federal 0:08:18.800 --> 0:08:23.880 jurisdiction and then thus subject to restructions on polluting into 0:08:23.920 --> 0:08:27.800 it or filling it. And tell us just a little 0:08:27.800 --> 0:08:31.920 bit about their property. They are neither in northern Idaho, 0:08:32.080 --> 0:08:34.840 and they're near lake, but not right on it. Is 0:08:34.880 --> 0:08:39.360 that right? Yes, Um, they are near the lake. What 0:08:39.559 --> 0:08:42.080 one thing that complicates it is they are essentially on 0:08:42.160 --> 0:08:44.120 a map which is part of the record of the 0:08:44.200 --> 0:08:47.560 case shows their property be essentially in a whole area 0:08:47.640 --> 0:08:51.960 that is clearly mapped as wetlands and that are kind 0:08:51.960 --> 0:08:58.040 of continuously transitioning to connections with the lake. But their property, 0:08:58.200 --> 0:09:01.600 the Sackets property, actually has a in one area and 0:09:01.720 --> 0:09:05.000 some houses in the other. And so their story is 0:09:05.080 --> 0:09:09.640 that their land lacks the connection to this large lake, 0:09:10.160 --> 0:09:14.040 which most people agree is subject to federal jurisdiction, and 0:09:14.080 --> 0:09:17.960 they argue that because it's essentially cut off, it should 0:09:17.960 --> 0:09:22.000 not be protected. The federal government says, no, that this 0:09:22.120 --> 0:09:24.800 is clearly a wetland when you look at the nature 0:09:24.840 --> 0:09:27.080 of it, the wetness of it, what it would be 0:09:27.160 --> 0:09:30.240 but for uh, this road in these houses, that this 0:09:30.440 --> 0:09:33.640 is a protectable wetland. And so let's step back a 0:09:33.640 --> 0:09:36.800 little bit. Why does the definition of waters of the 0:09:36.880 --> 0:09:39.080 United States matter? What is it that it allows the 0:09:39.120 --> 0:09:42.440 e p A to do um? Well, first, it's important. 0:09:42.480 --> 0:09:44.240 This is the e p A and the Army Corps 0:09:44.240 --> 0:09:48.679 of Engineers. They divide jurisdiction under the Clean Water Act, 0:09:48.760 --> 0:09:53.800 And going back to basically the early nineteen seventies version 0:09:53.880 --> 0:09:57.080 of the Clean Water Act, what is a water of 0:09:57.120 --> 0:10:01.440 the United States is what is protectable by the federal 0:10:01.520 --> 0:10:05.200 government from all types of pollution. Uh. And so the 0:10:05.280 --> 0:10:09.360 question of whether something is a protected water um is 0:10:09.800 --> 0:10:13.480 absolutely the heart and core of the Clean Water Act. So, 0:10:13.640 --> 0:10:18.360 for example, if an industrial polluter right now is discharging 0:10:18.400 --> 0:10:22.840 pollution into something, that's debatable. If it is a water 0:10:23.120 --> 0:10:25.840 it has to have a permit, or if it's filling, 0:10:26.360 --> 0:10:29.920 it has certain restrictions on filling at all. If it's 0:10:29.960 --> 0:10:34.319 not federally protected, then the only protections would be if 0:10:34.360 --> 0:10:37.000 a state has on its own decided to protect out 0:10:37.559 --> 0:10:40.680 that land or that water. So there's a very important 0:10:40.679 --> 0:10:44.120 precedent governing the Clean Water Act from two thousand six. 0:10:44.600 --> 0:10:47.040 Turns out, Kimberly and I disagree how to pronounce it. 0:10:47.040 --> 0:10:49.520 So we'll let you tell us what the correct pronunciation is. 0:10:50.000 --> 0:10:52.080 Can you do that? And also tell us why that 0:10:52.160 --> 0:10:54.600 case is so important? What what did or did not 0:10:54.880 --> 0:10:58.800 the Supreme Court decide in that case? Sure well to 0:10:58.800 --> 0:11:02.000 to add confusion on confusion the way I've always heard, 0:11:02.040 --> 0:11:04.680 I've not met that people at issue in that earlier case, 0:11:04.720 --> 0:11:08.880 but everyone refers to it as Ropanos, So so I 0:11:08.920 --> 0:11:11.760 will refer to it as Rapanos. Like that said, I've 0:11:11.840 --> 0:11:15.040 not met the Ropontos family, so I can't guarantee that 0:11:16.400 --> 0:11:20.360 I won't. I won't tell anybody who was right. Uh. 0:11:20.400 --> 0:11:24.480 And so the Rapanos case is the last major Supreme 0:11:24.520 --> 0:11:28.679 Court case that addressed this question, uh and uh. And 0:11:28.800 --> 0:11:33.680 in that case what happened ended up being very confusing 0:11:34.120 --> 0:11:38.320 because in the end also a case about whether some 0:11:39.040 --> 0:11:41.360 waters or lands that were kind of at the border, 0:11:42.200 --> 0:11:47.160 whether they were protected. The court splintered in several ways, 0:11:47.200 --> 0:11:51.719 so there was no single majority opinion um. And so 0:11:51.840 --> 0:11:55.000 there was what's called a plurality opinion that only four 0:11:55.040 --> 0:11:58.960 justices joined, that was written by Justice Scalia. Then there 0:11:59.000 --> 0:12:02.560 was an important opinion by Justice Kennedy, but which for 0:12:02.880 --> 0:12:07.160 dissenters mostly agreed with um uh. And then there was 0:12:07.440 --> 0:12:11.160 dissenting opinions, and so there was no single opinion that 0:12:11.240 --> 0:12:15.680 a clear majority agreed with. But if you analyze that, 0:12:15.679 --> 0:12:19.079 there were certain agreements on certain issues, so um, it 0:12:19.240 --> 0:12:22.560 kind of in the cases and before agencies, it actually 0:12:22.559 --> 0:12:25.560 had sorted out pretty well. How to make sense of 0:12:25.600 --> 0:12:27.760 it when you look at certain issues. Okay, this is 0:12:27.760 --> 0:12:31.920 where a majority stood, but it definitely is a confusing 0:12:31.960 --> 0:12:35.760 case that professors and students and certainly those out in 0:12:35.760 --> 0:12:40.920 the real world have puzzled over since that time. Now, 0:12:40.960 --> 0:12:44.000 if I'm correct, the lower court here applied a test 0:12:44.840 --> 0:12:47.400 that was close to the one that Justice Kennedy had 0:12:47.400 --> 0:12:51.800 written just for himself. And if that's right, can you 0:12:51.840 --> 0:12:54.680 tell us what that allowed the E p A and 0:12:54.720 --> 0:12:58.640 the Army Corps of Engineers to do? Sure? But actually, 0:12:58.640 --> 0:13:00.960 so this is important is that us as Kennedy wrote 0:13:01.000 --> 0:13:04.040 an opinion that that it was his own name, but 0:13:04.520 --> 0:13:09.000 most of that opinion the dissenters uh explicitly agreed with, 0:13:09.440 --> 0:13:12.840 and Justice Kennedy in his opinion agreed with most of 0:13:12.880 --> 0:13:17.080 what the dissenters said. So in looking at Supreme Court law, 0:13:17.160 --> 0:13:20.880 you often look at where do people agree and disagree? 0:13:21.400 --> 0:13:24.600 And so the part of the reason the Kennedy opinion, 0:13:24.640 --> 0:13:28.080 which does this thing called the significant nexus test. The 0:13:28.160 --> 0:13:30.440 reason it was so important is it seemed to be 0:13:30.480 --> 0:13:33.679 the kind of common ground that most of the justices 0:13:33.720 --> 0:13:36.560 agreed with UM, and then you just asked, you know, 0:13:36.679 --> 0:13:40.000 what does it do? What this What that opinion said 0:13:40.080 --> 0:13:44.559 was when you decide whether a disputed water is protected 0:13:44.600 --> 0:13:47.200 by the federal government, you look to see if it 0:13:47.240 --> 0:13:51.439 has a significant nexus to what is clearly a navigable 0:13:51.679 --> 0:13:54.880 such as like ships and barges. Is it clearly have 0:13:54.960 --> 0:13:59.880 a significant nexus to kind of large, indisputable jurisdictional water 0:14:00.080 --> 0:14:02.640 is UM. And that's important because it was a kind 0:14:02.640 --> 0:14:05.640 of a functional test to just look to see how 0:14:05.679 --> 0:14:08.559 does it connect, what does it do? And so was 0:14:08.679 --> 0:14:12.920 quite consistent with the Clean Water Act, which is overwhelmingly 0:14:13.000 --> 0:14:17.160 focused on protecting waters for their functions and to make 0:14:17.160 --> 0:14:21.760 sure they're safe for drinking and recreation and biological integrity. 0:14:22.640 --> 0:14:26.040 So that was the test he formulated, but it was 0:14:26.120 --> 0:14:29.880 consistent with long standing regulations in the Statute. And so 0:14:29.960 --> 0:14:34.160 since two thousand and six, Justice Kennedy's test has been 0:14:34.200 --> 0:14:38.120 the main test people have applied in deciding if something 0:14:38.200 --> 0:14:41.480 is protected. You're listening to Bloomberg Law. Coming up, we'll 0:14:41.480 --> 0:14:44.920 continue our conversation with Georgetown law professor William Buzzby wrote 0:14:44.920 --> 0:14:46.880 a Friend of the Court brief in support of the 0:14:46.880 --> 0:14:49.240 e p A and a major Clean Water Act case. 0:14:49.800 --> 0:14:53.480 I'm Greg Store and I'm Kimberly Robinson. This is Bloomer. 0:15:01.640 --> 0:15:06.400 This is Bloombird Law with June Grasso from Bloomberg Radio. 0:15:07.200 --> 0:15:10.280 I'm Gregg Store and I'm Kimberly Robinson. We're in for 0:15:10.360 --> 0:15:13.880 June Grasso. We're chatting with Georgetown law professor William Buzby 0:15:13.920 --> 0:15:16.520 about the latest environmental case that the U. Supreme Court 0:15:16.560 --> 0:15:19.880 will consider in October. And what did the sackets say 0:15:19.920 --> 0:15:22.880 should be the test Instead of that significant nexus test, 0:15:23.320 --> 0:15:28.800 they basically want to completely discard the Kennedy test. Um 0:15:28.920 --> 0:15:31.720 they would they prefer, and they've come up really on 0:15:31.760 --> 0:15:35.440 their own, is a test that is kind of like 0:15:35.840 --> 0:15:40.000 Justice Scalia's opinion that was called the plurality that four 0:15:40.080 --> 0:15:43.640 justices agreed with. But they even go further. They kind 0:15:43.640 --> 0:15:45.920 of want to say, as as best as I can 0:15:46.000 --> 0:15:49.800 understand it, you only protect waters that are sort of 0:15:49.840 --> 0:15:54.760 being used as channels of interstate commerce um and that 0:15:54.920 --> 0:16:01.480 have a permanent surface connection. Uh and continuously low. Um. 0:16:01.560 --> 0:16:04.920 And so that's kind of what school Leah said and 0:16:05.000 --> 0:16:07.720 what they have sort of embellished, and that sackets have 0:16:07.760 --> 0:16:12.680 embellished and maybe further strengthened or maybe i'd say weekend Um. 0:16:12.720 --> 0:16:15.920 The problem with that test is much of the country 0:16:16.800 --> 0:16:19.440 would no longer be subject to federal protection if that 0:16:19.520 --> 0:16:22.600 test were adopted. If you look at the west and 0:16:22.640 --> 0:16:26.120 the southwest, or you look also in the southeast an 0:16:26.160 --> 0:16:28.480 areas where there are levies on rivers and the lake, 0:16:29.480 --> 0:16:33.920 the test that they prefer would render but are most 0:16:33.920 --> 0:16:36.640 people would clearly say our water is no longer protected 0:16:36.640 --> 0:16:40.720 by federal law. And so the United States and my 0:16:40.800 --> 0:16:44.640 clients a hundred and sixty seven members of Congress argue 0:16:44.640 --> 0:16:47.400 against that test, saying it's just not consistent with the 0:16:47.440 --> 0:16:51.680 Clean Water Act, which is you protect waters for their criteria, 0:16:51.800 --> 0:16:56.360 for their you know, high quality water criteria, and for 0:16:56.520 --> 0:17:00.400 their functions. Um and uh. So this test that the 0:17:01.120 --> 0:17:04.920 Sacatswan we argue is just not consistent with the statute. 0:17:05.359 --> 0:17:08.159 So you filed an amicus brief on behalf of a 0:17:08.240 --> 0:17:11.040 hundred and sixty seven members of Congress tell us why 0:17:11.080 --> 0:17:15.760 they decided to weigh in on this case. UM. Members 0:17:15.760 --> 0:17:19.960 of Congress have viewed and scientists and environmentalists, and frankly 0:17:20.040 --> 0:17:23.680 much of the world views our nation's Clean Water Act 0:17:23.760 --> 0:17:27.720 as one of its signature successes. UM. The Clean Water 0:17:27.800 --> 0:17:31.560 Act has been very strong and really a bipartisan project 0:17:32.080 --> 0:17:35.719 going back to nineteen seventies and UH. And so the 0:17:35.760 --> 0:17:39.320 goal of our clients, the hundred sixty seven members of Congress, 0:17:39.480 --> 0:17:43.439 was to basically make sure the Clean Water Act is 0:17:43.480 --> 0:17:47.119 not weakened, and the Clean Water Act has a The 0:17:47.160 --> 0:17:50.200 statute is very clear with its language. It about don't 0:17:50.280 --> 0:17:59.920 degrade waters, protect fish, shellfish, biological integrity, ecosystem diversity, recreation, 0:18:00.040 --> 0:18:03.919 and economic values. This is all in the statute. And 0:18:03.960 --> 0:18:07.680 so the members of Congress really wanted to put before 0:18:07.720 --> 0:18:11.600 the Supreme Court. This is what the statute says, UM 0:18:12.200 --> 0:18:16.720 and UH, and discourt is in an interesting position. It 0:18:17.160 --> 0:18:20.040 claims the conservatives on the Supreme Court, I think, claim 0:18:20.119 --> 0:18:23.600 that they are textualists. UM. That is, they would be 0:18:23.640 --> 0:18:27.320 governed by what statute say and if they really are serious, 0:18:27.560 --> 0:18:30.439 the statute answers the questions in this case, and it 0:18:30.440 --> 0:18:34.199 would protect these waters. But there's a strong push to 0:18:34.880 --> 0:18:38.040 get these justices to weaken the Clean Water Act to 0:18:38.160 --> 0:18:41.479 kind of look away from the language and actually just 0:18:41.520 --> 0:18:44.520 sort of reach an outcome that weakens the statute. And 0:18:44.560 --> 0:18:48.399 so our effort and our brief and the reason hundred 0:18:48.440 --> 0:18:51.760 and sixty seven members of Congress joined it was trying 0:18:51.760 --> 0:18:55.880 to protect the Clean Water Act and it's long time successes. 0:18:56.640 --> 0:18:59.359 In your brief, you say the administration of Donald J. 0:18:59.480 --> 0:19:02.960 Trump is only administration to have sought a major weakening 0:19:03.160 --> 0:19:06.040 of the Clean Water Act. What are you talking about 0:19:06.040 --> 0:19:08.720 there and how did it work out for the Trump administration? 0:19:09.640 --> 0:19:13.960 M so. So, First, that's just the script, accurate the scripts, 0:19:13.960 --> 0:19:17.160 and that even going back to two thousands six earlier 0:19:17.200 --> 0:19:21.000 case we talked about called Rapanos, the Bush administration, that 0:19:21.080 --> 0:19:26.240 George W. Bush administration was aligned with the environmental interest 0:19:26.280 --> 0:19:29.480 in trying to protect the Clean Water Act. Um. The 0:19:29.520 --> 0:19:35.520 Trump administration very quickly tried to roll back protections through 0:19:35.560 --> 0:19:40.200 several regulations and then also in briefs in the courts um, 0:19:40.320 --> 0:19:43.760 and they did not meet with success. Um. People looked 0:19:43.760 --> 0:19:47.679 at their regulations or their proposed change in regulations and 0:19:47.760 --> 0:19:52.560 said they violated what the statute said. Um. And so 0:19:52.560 --> 0:19:54.840 so now it's gone to the Supreme Court and the 0:19:55.080 --> 0:20:00.040 question is will the current reconfigured court cut back on 0:20:00.119 --> 0:20:02.960 the Clean Water Act or go with what has been 0:20:03.040 --> 0:20:05.879 the view for about fifty years of the reach of 0:20:05.920 --> 0:20:09.760 the statute. Well, thank you very much. That was William Buzby, 0:20:09.880 --> 0:20:13.920 Georgetown law professor, talking about Second versus E p A, 0:20:14.080 --> 0:20:16.080 which is going to be heard by the spoom Court 0:20:16.080 --> 0:20:19.520 in October. You're listening to Bloomberg Law. I'm Kimberly Robinson 0:20:20.080 --> 0:20:23.200 and I'm Greg's store. We're in for June Grasso. This 0:20:23.400 --> 0:20:35.920 is Bloomberg. This is Bloomberg Law with June Grasso from 0:20:36.040 --> 0:20:40.760 Bloomberg Radio. I'm Kimberly Robinson and I'm Greg's store. We're 0:20:40.760 --> 0:20:44.439 in for June Grasso. The Supreme Court's Dabbs decision is 0:20:44.520 --> 0:20:47.639 changing the nation's abortion landscape, but just how quickly is 0:20:47.680 --> 0:20:50.720 it happening? With us to discuss that is Elizabeth Nash, 0:20:50.800 --> 0:20:54.040 who follows state abortion policy at the Goomaker Institute, a 0:20:54.119 --> 0:20:57.960 research organization that supports reproductive rights. Elizabeth, thanks for being 0:20:57.960 --> 0:21:01.720 on with us. UM. Let's are with the overarching question 0:21:02.080 --> 0:21:05.080 as we sit here right now in how many states 0:21:05.119 --> 0:21:10.600 are all are virtually all abortions band So right now 0:21:10.640 --> 0:21:15.119 we're looking at eleven states where there are near total 0:21:15.119 --> 0:21:18.880 abortion bands. So those are abortion bands that may have 0:21:18.920 --> 0:21:23.360 some exceptions like life for life, endanger mint, perhaps serious 0:21:23.760 --> 0:21:29.600 physical health conditions, rape or incest, or fatal fetal anomaly. Right. 0:21:29.680 --> 0:21:33.560 So that's the first eleven states, and then there are 0:21:33.640 --> 0:21:38.440 another two states that have bands in effect at six weeks, 0:21:38.520 --> 0:21:40.960 and then you have Florida at fifteen weeks, in North 0:21:40.960 --> 0:21:44.760 Carolina at twenty weeks, and then the rest of the states. 0:21:44.800 --> 0:21:50.639 So we're really looking at a large number of women 0:21:50.920 --> 0:21:54.199 who are living in states without abortion access. If you 0:21:54.240 --> 0:21:58.520 look at those eleven states alone, that's almost sixteen million 0:21:58.560 --> 0:22:02.480 women of reproduct of age. And then can you tell 0:22:02.560 --> 0:22:05.960 us looking forward, how many states are there where abortion 0:22:06.119 --> 0:22:10.400 is on the brink of being banned, right, So we 0:22:10.480 --> 0:22:15.320 also are looking at states where there may be a 0:22:15.400 --> 0:22:20.000 special session upcoming, like in South Carolina, the legislature this summer, 0:22:20.320 --> 0:22:24.239 the House committees and Senate committees have been discussing an 0:22:24.240 --> 0:22:27.320 abortion band and they're about to go into special session 0:22:27.359 --> 0:22:30.520 to pass it. And then there are states that had 0:22:30.560 --> 0:22:36.119 adopted abortion bands, you know, maybe last year, the year before, 0:22:36.400 --> 0:22:39.800 even years before that, where they're blocked in the courts, 0:22:40.040 --> 0:22:44.159 and so there are states like Utah and Wyoming where 0:22:44.560 --> 0:22:47.840 abortion bands are not in effect because of court action. 0:22:48.400 --> 0:22:52.320 So we're really looking at a number of states where 0:22:52.320 --> 0:22:56.159 we may be seeing more action around abortion bands in 0:22:56.240 --> 0:22:59.720 the coming months. And if we were looking at a 0:22:59.760 --> 0:23:03.000 man up, Um, we're we're an audio medium here, but 0:23:03.000 --> 0:23:05.280 if we were looking at a map, where would we 0:23:05.400 --> 0:23:08.480 see most of the states that you're talking about, right? 0:23:08.520 --> 0:23:11.560 So yeah, So pretend you have this map in front 0:23:11.600 --> 0:23:15.880 of you and we're really looking at the south, the plains, 0:23:16.119 --> 0:23:20.760 the Midwest. So we're really looking at basically from North 0:23:20.840 --> 0:23:26.000 Dakota over to Idaho, down to Texas, over to Georgia 0:23:26.200 --> 0:23:30.760 and up back through Ohio. That is really the landscape 0:23:30.800 --> 0:23:35.080 what we're looking at. And what that means is that 0:23:35.359 --> 0:23:39.840 for these regions as states are you know, have abortion 0:23:39.880 --> 0:23:45.159 bands in effect, that means that people have to travel 0:23:45.560 --> 0:23:51.239 much longer distances in order to access care in another state. Right, 0:23:51.280 --> 0:23:53.919 It's not like they're just and this is already a 0:23:54.000 --> 0:23:57.080 huge burden to try to travel across state lines, but 0:23:58.240 --> 0:24:02.080 the added burden is traveling multiple states. If you think 0:24:02.119 --> 0:24:08.040 about Louisiana, Louisiana, you're probably going to go to Illinois. 0:24:08.880 --> 0:24:13.120 And that's well over a thousand miles round trip for 0:24:13.160 --> 0:24:18.480 somebody going from Louisiana to Illinois for an abortion right, 0:24:18.560 --> 0:24:22.760 and that is a very hard trip to make. Right. 0:24:22.800 --> 0:24:28.200 You're leaving your um, your support network, your you may 0:24:28.240 --> 0:24:31.639 have a child. Sixty of abortion patients have had a child. 0:24:33.320 --> 0:24:36.719 Of abortion patients are low income. So you're talking about 0:24:37.480 --> 0:24:41.800 really difficult and burdensome journey financially and emotionally for somebody 0:24:41.800 --> 0:24:44.840 to travel. And then I think you describe them as 0:24:44.920 --> 0:24:48.480 near total bands. I'm wondering what kinds of exceptions are there? 0:24:48.560 --> 0:24:50.879 Do we see many of these states have in place 0:24:50.920 --> 0:24:54.200 exceptions for rape and incest or or is it really 0:24:54.240 --> 0:24:58.760 just for the health and safety of the mother. So really, 0:24:59.040 --> 0:25:02.480 what we've seen in all eleven states, there's an exception 0:25:02.720 --> 0:25:07.200 for life endangerment um that that's in every single one 0:25:07.200 --> 0:25:11.919 of them, and then a smaller subset have exceptions for 0:25:12.720 --> 0:25:17.200 rape and incest or fatal fetal anomaly or serious physical 0:25:17.200 --> 0:25:22.119 health conditions. And you really do not see the rape 0:25:22.160 --> 0:25:27.440 and incest exceptions or the fatal fetal anomaly exceptions very often. 0:25:28.840 --> 0:25:34.439