1 00:00:02,759 --> 00:00:07,000 Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio. 2 00:00:08,600 --> 00:00:12,360 Speaker 2: It was the biggest about face in President Donald Trump's 3 00:00:12,400 --> 00:00:16,560 Speaker 2: first two weeks in office, and it happened with lightning speed. 4 00:00:16,920 --> 00:00:20,000 Speaker 2: On Monday night, the White House Budget Office issued a 5 00:00:20,000 --> 00:00:24,600 Speaker 2: memo ordering a freeze on federal funds that caused mass 6 00:00:24,680 --> 00:00:28,520 Speaker 2: confusion and chaos across the country, with fears of its 7 00:00:28,560 --> 00:00:32,680 Speaker 2: potential to disrupt a massive segment of federal spending that's 8 00:00:32,760 --> 00:00:37,600 Speaker 2: relied on by local government, schools, and police departments. On Tuesday, 9 00:00:37,760 --> 00:00:42,000 Speaker 2: twenty two, Democratic attorneys general, including those from New York 10 00:00:42,040 --> 00:00:46,040 Speaker 2: and California, sued the Trump administration for what they said 11 00:00:46,200 --> 00:00:48,160 Speaker 2: was a clearly illegal action. 12 00:00:48,560 --> 00:00:52,280 Speaker 3: Not only does this administration's new policy but people at risk, 13 00:00:52,880 --> 00:00:57,040 Speaker 3: but it is plainly unconstitutional. The president does not get 14 00:00:57,120 --> 00:01:01,200 Speaker 3: to decide which laws to enforce and for whom. 15 00:01:01,280 --> 00:01:03,320 Speaker 4: He's a president, he has a great deal of authority, 16 00:01:03,440 --> 00:01:06,720 Speaker 4: but he's not a king. We have a democratic structure 17 00:01:06,760 --> 00:01:10,200 Speaker 4: with shared authority through different branches between the federal government 18 00:01:10,200 --> 00:01:12,800 Speaker 4: and the states. He can act within his authority, but 19 00:01:12,880 --> 00:01:16,080 Speaker 4: not outside of it. He has acted far outside of 20 00:01:16,120 --> 00:01:16,720 Speaker 4: his authority. 21 00:01:16,760 --> 00:01:20,640 Speaker 2: Here, a DC federal judge put a temporary block on 22 00:01:20,720 --> 00:01:25,039 Speaker 2: the funding freeze, and on Wednesday, the White House rescinded 23 00:01:25,080 --> 00:01:28,480 Speaker 2: the memo ordering the freeze, but said it was not 24 00:01:28,640 --> 00:01:33,080 Speaker 2: rescinding the federal funding freeze. A Rhode Island federal judge 25 00:01:33,160 --> 00:01:36,800 Speaker 2: call that a difference without a distinction and said he'll 26 00:01:36,800 --> 00:01:41,320 Speaker 2: still issue a temporary restraining order blocking the administration from 27 00:01:41,440 --> 00:01:45,560 Speaker 2: freezing federal funds. Joining me is Alex Hontos, a partner 28 00:01:45,560 --> 00:01:48,840 Speaker 2: at Dorsey and Whitney and a former Justice Department attorney. 29 00:01:49,280 --> 00:01:52,360 Speaker 2: Alex how broad was the scope of this order? 30 00:01:52,800 --> 00:01:57,240 Speaker 5: So the omb order issued on Monday by the administration 31 00:01:57,640 --> 00:02:02,160 Speaker 5: was exceptionally broad, covering all all forms of federal assistance, 32 00:02:02,560 --> 00:02:06,000 Speaker 5: with the exception of a few carve outs. So Medicare 33 00:02:06,120 --> 00:02:09,800 Speaker 5: was carved out, for example, but notably Medicaid was not mentioned. 34 00:02:10,120 --> 00:02:14,000 Speaker 5: So it covered on its face trillions of dollars of 35 00:02:14,120 --> 00:02:16,600 Speaker 5: federal spending. That's about as broad as you can get. 36 00:02:17,040 --> 00:02:21,760 Speaker 2: In his first administration, Trump issued a Muslim travel ban, 37 00:02:22,240 --> 00:02:26,800 Speaker 2: and it took three tries, three different versions before it 38 00:02:26,840 --> 00:02:29,800 Speaker 2: got approval from the Supreme Court. Is there a way 39 00:02:29,880 --> 00:02:32,760 Speaker 2: for him to rewrite this and try again? 40 00:02:33,360 --> 00:02:36,359 Speaker 5: Well, I certainly expect that this will not be the 41 00:02:36,520 --> 00:02:42,320 Speaker 5: end of the administration's efforts to root out programs that 42 00:02:42,400 --> 00:02:47,240 Speaker 5: it believes should not be in federal spending policies, procedures, 43 00:02:47,320 --> 00:02:49,679 Speaker 5: that kind of thing. So I think they're going to 44 00:02:49,760 --> 00:02:53,560 Speaker 5: try again. But what is striking about this is instead 45 00:02:53,600 --> 00:02:59,080 Speaker 5: of targeting specific programs, they did a blanket pause. And 46 00:02:59,480 --> 00:03:03,560 Speaker 5: you know, you would do a census of specific programs, 47 00:03:03,600 --> 00:03:09,079 Speaker 5: first identify programs that were perhaps against your policy objectives, 48 00:03:09,240 --> 00:03:12,520 Speaker 5: and then work those programs, And that's not the angle 49 00:03:12,600 --> 00:03:15,519 Speaker 5: that they came at this from. They might change that, though, 50 00:03:15,600 --> 00:03:17,720 Speaker 5: and we might see that next, and in fact that's 51 00:03:17,760 --> 00:03:20,160 Speaker 5: probably what is coming next, So then. 52 00:03:20,040 --> 00:03:22,240 Speaker 2: They would actually have to do some work to figure 53 00:03:22,240 --> 00:03:22,720 Speaker 2: that out. 54 00:03:23,080 --> 00:03:25,880 Speaker 5: Yes, that's right. So there is going to need to 55 00:03:25,880 --> 00:03:29,400 Speaker 5: be a census, if you will, within the federal government, 56 00:03:29,639 --> 00:03:33,240 Speaker 5: kind of a cataloging of the programs. And boy, are 57 00:03:33,240 --> 00:03:37,000 Speaker 5: there a lot of them out there, thousands of programs 58 00:03:37,040 --> 00:03:41,200 Speaker 5: and offices and grants and contracts and things of that 59 00:03:41,440 --> 00:03:45,000 Speaker 5: nature that will need to be assessed, analyzed and then 60 00:03:45,320 --> 00:03:50,600 Speaker 5: sort of reviewed for whether they're compliant or not compliant 61 00:03:50,840 --> 00:03:54,440 Speaker 5: with the administration's objectives. So it's a herculean effort. 62 00:03:54,640 --> 00:03:57,520 Speaker 2: Let's talk about the legal problems with the order that 63 00:03:57,600 --> 00:04:02,880 Speaker 2: the Democratic Attorney's General and most legal experts have identified. 64 00:04:03,400 --> 00:04:06,320 Speaker 2: The legislative branch is supposed to be the branch that 65 00:04:06,440 --> 00:04:09,640 Speaker 2: decides on spending. Is that the basic problem. 66 00:04:09,960 --> 00:04:12,960 Speaker 5: That's one of the problems that's right. So under the constitution, 67 00:04:13,600 --> 00:04:17,520 Speaker 5: the power of the purse that is the legislative branch's purview, 68 00:04:17,800 --> 00:04:20,760 Speaker 5: not the executive branch. The executive branch is supposed to 69 00:04:20,760 --> 00:04:25,200 Speaker 5: execute the laws. Congress gets to dictate where funds are 70 00:04:25,240 --> 00:04:28,880 Speaker 5: appropriated and stand up certain programs. So that is one 71 00:04:28,960 --> 00:04:32,760 Speaker 5: of the fundamental challenges that the administration will have if 72 00:04:32,760 --> 00:04:36,200 Speaker 5: it's trying to defend this kind of behavior in court. 73 00:04:36,600 --> 00:04:39,039 Speaker 5: Courts are going to be asking questions about separation of 74 00:04:39,160 --> 00:04:44,080 Speaker 5: powers and authority. There's also you lawyers in MySpace this 75 00:04:44,120 --> 00:04:46,560 Speaker 5: week had a dust off the Empowerment Control Act of 76 00:04:46,600 --> 00:04:49,240 Speaker 5: nineteen seventy four and kind of go back to the 77 00:04:49,320 --> 00:04:54,320 Speaker 5: Nixon era and look through the lens of whether the 78 00:04:54,360 --> 00:04:58,880 Speaker 5: president has an authority issue when it comes to spending 79 00:04:58,920 --> 00:05:03,080 Speaker 5: money that Griss has directed be spent, and certainly the 80 00:05:03,160 --> 00:05:07,360 Speaker 5: legislative branch. Congress believes that when it says to spend money, 81 00:05:07,680 --> 00:05:10,680 Speaker 5: the president has to do that, and so there are 82 00:05:10,720 --> 00:05:17,440 Speaker 5: a whole host constitutional, statutory of potential hurdles that the 83 00:05:17,480 --> 00:05:20,720 Speaker 5: administration is really going to have to get around to 84 00:05:20,800 --> 00:05:24,520 Speaker 5: effectuate this policy. And those are not even taking into 85 00:05:24,560 --> 00:05:28,479 Speaker 5: account the political consequences of some of these actions. And 86 00:05:28,560 --> 00:05:32,640 Speaker 5: you saw that occur, you know, shortly after the Omb 87 00:05:32,800 --> 00:05:37,960 Speaker 5: memo was issued, when red state governors, Blue state governors, 88 00:05:38,360 --> 00:05:42,040 Speaker 5: we're both howling about what this might mean for state budgets. 89 00:05:42,160 --> 00:05:45,760 Speaker 5: You know, large for profit clients of mine were very 90 00:05:45,800 --> 00:05:49,880 Speaker 5: concerned about what this might mean for them. Higher education 91 00:05:50,279 --> 00:05:53,960 Speaker 5: and university clients of mine were equally concerned. So you 92 00:05:54,040 --> 00:05:58,520 Speaker 5: actually had a broad base of the American economy that 93 00:05:59,000 --> 00:06:02,080 Speaker 5: really was concerned. So you have multiple challenges if you're 94 00:06:02,160 --> 00:06:06,320 Speaker 5: the administration. One is a straight legal challenge and that 95 00:06:06,440 --> 00:06:09,200 Speaker 5: is a fraud area and that will be played out 96 00:06:09,200 --> 00:06:12,599 Speaker 5: in the courts principally. But the other is a policy 97 00:06:13,040 --> 00:06:16,760 Speaker 5: and kind of political issue related to this. And I 98 00:06:16,800 --> 00:06:18,960 Speaker 5: think they bid off more than they can chew here 99 00:06:19,200 --> 00:06:21,359 Speaker 5: in rolling this out in the way they did, because 100 00:06:21,400 --> 00:06:27,360 Speaker 5: they certainly galvanized opposition in an incredibly fast way. I'm 101 00:06:27,360 --> 00:06:30,480 Speaker 5: not so sure that the honeymoon for this administration is over, 102 00:06:30,880 --> 00:06:33,560 Speaker 5: but it might be and this might be the beginning 103 00:06:33,640 --> 00:06:36,520 Speaker 5: of the end, at least of the honeymoon for the administration. 104 00:06:37,000 --> 00:06:41,159 Speaker 2: How much discretion does a president have not to spend 105 00:06:41,160 --> 00:06:44,960 Speaker 2: the money that's been appropriated by Congress? I mean, is 106 00:06:44,960 --> 00:06:46,560 Speaker 2: that a settled issue? 107 00:06:46,800 --> 00:06:50,560 Speaker 5: Yeah, so it depends the lawyer's favorite answer. Right, So, 108 00:06:50,680 --> 00:06:55,120 Speaker 5: certain programs direct the expenditure of funds. If a statute 109 00:06:55,160 --> 00:06:59,560 Speaker 5: directs the expenditure of funds, the president's ability to not 110 00:06:59,680 --> 00:07:03,480 Speaker 5: spend those funds is significantly constrained. You know, there can 111 00:07:03,520 --> 00:07:05,920 Speaker 5: be some timing issues and that kind of thing where 112 00:07:05,960 --> 00:07:09,360 Speaker 5: the president might have some flexibility, but if the president 113 00:07:09,400 --> 00:07:13,440 Speaker 5: is directed to spend, that's weak round for the president 114 00:07:13,520 --> 00:07:15,160 Speaker 5: to try to defend and say I don't have to 115 00:07:15,200 --> 00:07:20,040 Speaker 5: spend now. In other types of programs where an appropriation 116 00:07:20,240 --> 00:07:23,840 Speaker 5: is made, say to an agency the Defense Department, to 117 00:07:23,960 --> 00:07:27,920 Speaker 5: further some general objective or innovation or something like that, 118 00:07:28,560 --> 00:07:33,520 Speaker 5: where the Congress has not been crystal clear about who 119 00:07:33,680 --> 00:07:37,840 Speaker 5: and what and why the expenditures will go out, the 120 00:07:38,040 --> 00:07:42,240 Speaker 5: executive might claim to have more authority to have discretion 121 00:07:42,560 --> 00:07:45,880 Speaker 5: to choose who gets those grant awards, for example, or 122 00:07:45,920 --> 00:07:50,320 Speaker 5: contract awards. But there are still regulatory overlays that would 123 00:07:50,320 --> 00:07:53,720 Speaker 5: apply even in that context as well. So while there 124 00:07:53,800 --> 00:07:58,440 Speaker 5: is discretion at some level, it's cabined in many ways 125 00:07:58,760 --> 00:08:03,880 Speaker 5: by statute of general applicability. So on the government contract side, 126 00:08:03,920 --> 00:08:08,360 Speaker 5: there's a Competition and Contracting Act, where basically competition for 127 00:08:08,520 --> 00:08:11,640 Speaker 5: government contract towards is the general rule. Another example is 128 00:08:11,680 --> 00:08:14,560 Speaker 5: the Administrative Procedures Act, where if the agency is going 129 00:08:14,600 --> 00:08:16,960 Speaker 5: to do something and it falls within the purview of 130 00:08:17,000 --> 00:08:19,440 Speaker 5: the APA, it has to do it in a certain way. Right. 131 00:08:19,560 --> 00:08:24,440 Speaker 5: So you have these general statutes that may confine presidential 132 00:08:24,560 --> 00:08:29,480 Speaker 5: executive discretion. You have the specific statutes that may develop 133 00:08:29,720 --> 00:08:33,720 Speaker 5: or create a particular program that would have limitations on 134 00:08:33,800 --> 00:08:37,360 Speaker 5: presidential discretion. And you have both of those things that 135 00:08:37,440 --> 00:08:41,520 Speaker 5: will be I think used by certainly adversaries of the 136 00:08:41,880 --> 00:08:47,720 Speaker 5: administration's attempts, those affected by the administration's attempts to change 137 00:08:47,760 --> 00:08:51,640 Speaker 5: grants or cancel grants. They will be leveraged, and there 138 00:08:51,679 --> 00:08:55,800 Speaker 5: will be arguments in court about whether, in a given 139 00:08:55,880 --> 00:08:59,880 Speaker 5: context or the issuance of a memo, perhaps the president overstepped. 140 00:09:00,360 --> 00:09:04,760 Speaker 2: Other presidents have tried to get around this very issue before, 141 00:09:05,120 --> 00:09:06,679 Speaker 2: have any of them been successful? 142 00:09:07,040 --> 00:09:09,920 Speaker 5: I don't know that any other president has done what 143 00:09:10,320 --> 00:09:14,080 Speaker 5: the president tried to do this week, and the idea 144 00:09:14,200 --> 00:09:19,000 Speaker 5: of sort of stopping everything, which is a bit overblown June, 145 00:09:19,000 --> 00:09:22,120 Speaker 5: but not that much overblown that I can't think of 146 00:09:22,160 --> 00:09:24,679 Speaker 5: a time when another president has tried. 147 00:09:24,400 --> 00:09:24,920 Speaker 1: To do that. 148 00:09:25,400 --> 00:09:29,280 Speaker 5: I do think there's some interesting parallels, and you know, 149 00:09:29,400 --> 00:09:33,200 Speaker 5: think about a little bit during the Biden administration. The 150 00:09:33,240 --> 00:09:40,480 Speaker 5: Biden administration somewhat famously tried to use federal contracts as 151 00:09:40,559 --> 00:09:44,600 Speaker 5: a vehicle for policy objectives. So, you know, very common 152 00:09:44,640 --> 00:09:48,880 Speaker 5: example is the federal contractor vaccine mandate, where the Biden 153 00:09:48,880 --> 00:09:51,319 Speaker 5: administration was trying to require that anyone who was a 154 00:09:51,360 --> 00:09:55,520 Speaker 5: federal contractor had to have a vaccinated workforce. Another example 155 00:09:55,800 --> 00:10:02,000 Speaker 5: that President Biden tried was the government contractor minimum wage. Now, 156 00:10:02,040 --> 00:10:06,000 Speaker 5: both of those efforts were attacked in the courts by 157 00:10:06,440 --> 00:10:12,360 Speaker 5: constituencies affected contractors states that basically said the president lacked 158 00:10:12,360 --> 00:10:16,280 Speaker 5: the authority to take those steps. And there's a bit 159 00:10:16,280 --> 00:10:18,920 Speaker 5: of a mixed bag, but by and large, the courts 160 00:10:19,200 --> 00:10:23,880 Speaker 5: agreed with those challenges and said that President Biden didn't 161 00:10:23,880 --> 00:10:28,120 Speaker 5: have the authority to use sort of contractual terms with 162 00:10:28,520 --> 00:10:33,760 Speaker 5: governmental counterparties contractors, for example, to implement those policy objectives 163 00:10:33,760 --> 00:10:36,840 Speaker 5: that existing law did not allow him to go that far, 164 00:10:37,280 --> 00:10:39,679 Speaker 5: and so I think you're going to see a lot 165 00:10:39,720 --> 00:10:44,400 Speaker 5: of that authority that was used against President Biden's initiatives, 166 00:10:44,480 --> 00:10:46,440 Speaker 5: or at least some of his initiatives, sort to turn 167 00:10:46,520 --> 00:10:50,640 Speaker 5: back around now as a basis to challenge this and 168 00:10:50,800 --> 00:10:54,960 Speaker 5: future efforts by the Trump administration to sort of do 169 00:10:55,080 --> 00:10:58,640 Speaker 5: the same thing, but just to effectuate different policies. 170 00:10:59,040 --> 00:11:03,600 Speaker 2: During his campaign, vowed to abolish the Empowerment Law altogether. 171 00:11:04,080 --> 00:11:06,400 Speaker 2: Would that eliminate his problems here or not? 172 00:11:07,160 --> 00:11:10,400 Speaker 5: It doesn't eliminate his problems. He's got two problems on that. 173 00:11:10,760 --> 00:11:13,800 Speaker 5: One is the Empowerment Statute itself, so he would have 174 00:11:13,880 --> 00:11:18,040 Speaker 5: to get that repealed, which would require Congressional action more 175 00:11:18,080 --> 00:11:21,679 Speaker 5: substantially changed. So that's a big if. But even if 176 00:11:21,679 --> 00:11:26,240 Speaker 5: that could happen June, you still have constitutional arguments that 177 00:11:26,520 --> 00:11:30,240 Speaker 5: fundamentally the power of the purse is a core legislative 178 00:11:30,240 --> 00:11:35,920 Speaker 5: function and the idea that the legislature appropriates funds and 179 00:11:36,559 --> 00:11:39,760 Speaker 5: decides how much is spent in the United States, that's 180 00:11:39,800 --> 00:11:42,480 Speaker 5: pretty clear, I think from the text of the Constitution 181 00:11:42,720 --> 00:11:45,840 Speaker 5: that's what that's about. And if it's possible for a 182 00:11:45,880 --> 00:11:50,320 Speaker 5: president to accept the appropriation from Congress and just not 183 00:11:50,480 --> 00:11:54,000 Speaker 5: spend it at all. That seems to significantly erode the 184 00:11:54,080 --> 00:11:57,920 Speaker 5: constitutional protection afforded by the spending claus. 185 00:11:58,000 --> 00:12:00,000 Speaker 2: I'm sure this issue is going to come up again. 186 00:12:00,200 --> 00:12:03,559 Speaker 2: Thanks so much, Alex. That's Alex Hontos of Dorsey and 187 00:12:03,600 --> 00:12:08,719 Speaker 2: Whitney coming up climate whiplash after Trump's executive orders. I'm 188 00:12:08,800 --> 00:12:10,400 Speaker 2: June Grosso and this is Bloomberg. 189 00:12:12,000 --> 00:12:15,000 Speaker 6: We will be a rich nation again, and it is 190 00:12:15,040 --> 00:12:18,960 Speaker 6: that liquid gold under our feet that will help to 191 00:12:19,000 --> 00:12:22,559 Speaker 6: do it. With my actions today, we will end the 192 00:12:22,600 --> 00:12:26,680 Speaker 6: Green New Deal and we will revoke the electric vehicle mandate. 193 00:12:27,120 --> 00:12:30,840 Speaker 2: In the dizzy number of executive orders President Donald Trump 194 00:12:30,920 --> 00:12:34,160 Speaker 2: signed on Day one, where a series of orders laying 195 00:12:34,200 --> 00:12:38,679 Speaker 2: the groundwork for a sweeping overhaul of US energy policy, 196 00:12:39,040 --> 00:12:42,360 Speaker 2: putting the weight of the federal government behind fossil fuel 197 00:12:42,400 --> 00:12:46,479 Speaker 2: production and pulling back from the fight against climate change. 198 00:12:46,960 --> 00:12:51,080 Speaker 2: Trump insists his drill baby, drill policy will bring down 199 00:12:51,160 --> 00:12:52,720 Speaker 2: prices and inflation. 200 00:12:53,400 --> 00:12:54,559 Speaker 7: It just works that way. 201 00:12:54,600 --> 00:12:57,040 Speaker 1: I mean, it just economically works that way. 202 00:12:57,080 --> 00:12:59,560 Speaker 7: When the oil comes down, it'll bring down prices. Then 203 00:12:59,559 --> 00:13:02,720 Speaker 7: you won't have and then the interest rates. 204 00:13:02,559 --> 00:13:03,120 Speaker 8: Will come down. 205 00:13:03,520 --> 00:13:06,600 Speaker 2: My guest is an expert in environmental law, Pat Parento, 206 00:13:06,880 --> 00:13:10,480 Speaker 2: a professor the Vermont Law and Graduate School. Let's start. 207 00:13:10,640 --> 00:13:16,080 Speaker 2: Trump declared a national energy emergency. What does that allow 208 00:13:16,160 --> 00:13:16,800 Speaker 2: him to do? 209 00:13:17,600 --> 00:13:22,920 Speaker 1: Well? A declaration of a national emergency just generally does 210 00:13:23,120 --> 00:13:27,800 Speaker 1: quote unlock certain provisions of federal law. But it's a 211 00:13:27,840 --> 00:13:32,640 Speaker 1: statute by statute kind of thing. The declaration itself doesn't 212 00:13:32,760 --> 00:13:36,640 Speaker 1: do anything. It's a predicate for what's to come next. 213 00:13:36,800 --> 00:13:40,920 Speaker 1: So now you have to go through individual statutes. For example, 214 00:13:41,200 --> 00:13:45,680 Speaker 1: offshore oil and gas leasing that's governed by the Outer 215 00:13:45,760 --> 00:13:49,680 Speaker 1: Continental Shelf Lands Act, if it's an online oil and 216 00:13:49,760 --> 00:13:53,960 Speaker 1: gas development, the drill, baby drill, the mantra that's governed 217 00:13:54,000 --> 00:13:56,840 Speaker 1: by a law known as the Federal Land Policy and 218 00:13:56,960 --> 00:14:01,520 Speaker 1: Management Act, and so on. So the order themselves are 219 00:14:01,559 --> 00:14:06,520 Speaker 1: a clarion call, right, and a policy announcement clearly, and 220 00:14:06,600 --> 00:14:10,280 Speaker 1: a direction that the administration is going to go. But 221 00:14:10,600 --> 00:14:14,320 Speaker 1: legally it's going to go statute by statute, and in fact, 222 00:14:14,679 --> 00:14:18,439 Speaker 1: project by project, whether you're talking about a gas pipeline 223 00:14:18,679 --> 00:14:22,560 Speaker 1: or an oil pipeline or an LNG terminal or whatever, 224 00:14:22,800 --> 00:14:25,520 Speaker 1: it's going to go project by project, law by law. 225 00:14:25,920 --> 00:14:30,280 Speaker 2: He also ordered quarterly meetings of a committee of cabinet 226 00:14:30,360 --> 00:14:34,400 Speaker 2: level officials known as the gods Squad. What is the 227 00:14:34,440 --> 00:14:36,960 Speaker 2: god Squad? They've only met a handful of times over 228 00:14:37,000 --> 00:14:37,800 Speaker 2: the past four. 229 00:14:37,680 --> 00:14:41,120 Speaker 1: Decades, right, And I've been the only lawyer who has 230 00:14:41,160 --> 00:14:45,080 Speaker 1: appeared in all four of the God Squad proceeding. So 231 00:14:46,400 --> 00:14:47,120 Speaker 1: you're talking to me. 232 00:14:47,160 --> 00:14:48,960 Speaker 2: I don't know if that's good or bad. I'm trying 233 00:14:48,960 --> 00:14:49,640 Speaker 2: to throw out. 234 00:14:49,760 --> 00:14:52,680 Speaker 1: I don't know. I can tell you this. The Endangered 235 00:14:52,720 --> 00:14:57,160 Speaker 1: Species Committee is not a standing committee. Okay, it doesn't 236 00:14:57,200 --> 00:15:00,840 Speaker 1: meet quarterly or regularly at all. In in fact, it 237 00:15:00,920 --> 00:15:05,000 Speaker 1: can only meet as the Endangered Species Committee when there 238 00:15:05,200 --> 00:15:09,200 Speaker 1: is an application in front of it that meets really 239 00:15:09,680 --> 00:15:15,120 Speaker 1: specific statutory criteria that I had a hand in drafting, 240 00:15:15,440 --> 00:15:18,160 Speaker 1: And the most basic one is there can be no 241 00:15:18,440 --> 00:15:25,280 Speaker 1: exemption process unless there's what's called an irreconcilable conflict between 242 00:15:25,400 --> 00:15:30,000 Speaker 1: a specific project. Maybe it's a water project, a highway project, 243 00:15:30,200 --> 00:15:33,120 Speaker 1: timber sale projects. But there has to be a really 244 00:15:33,160 --> 00:15:38,440 Speaker 1: specific project federally authorized or undertaken, and it then has 245 00:15:38,520 --> 00:15:42,720 Speaker 1: to conflict with the commands of the Endangered Species fact, 246 00:15:42,800 --> 00:15:46,120 Speaker 1: meaning the activity in question has to jeopardize That's the 247 00:15:46,240 --> 00:15:51,040 Speaker 1: term the continued survival of a listed species endangered or threatened. 248 00:15:51,160 --> 00:15:53,760 Speaker 1: So we don't have anything like that. As you point out, 249 00:15:53,760 --> 00:15:57,120 Speaker 1: there hasn't been one since the spotted owl god Squad 250 00:15:57,160 --> 00:16:00,680 Speaker 1: proceeding where I was the owl's lawyer, if you will, 251 00:16:00,720 --> 00:16:04,240 Speaker 1: because I was the special counsel appointed to the Fish 252 00:16:04,280 --> 00:16:09,120 Speaker 1: and Wildlife Service to present the case for preserving the 253 00:16:09,120 --> 00:16:11,720 Speaker 1: owl's habitat to the god Squad. So there hasn't been 254 00:16:11,720 --> 00:16:14,720 Speaker 1: one since nineteen ninety two, is my point. And there 255 00:16:14,800 --> 00:16:17,360 Speaker 1: is nothing on the horizon that would give rise to 256 00:16:17,560 --> 00:16:19,280 Speaker 1: convening the god Squad. 257 00:16:19,920 --> 00:16:24,600 Speaker 2: One promise he made repeatedly during the campaign was drill, 258 00:16:24,680 --> 00:16:28,120 Speaker 2: baby drill, And in his inaugural address he said, we 259 00:16:28,200 --> 00:16:31,040 Speaker 2: will be a rich nation again, and it is that 260 00:16:31,200 --> 00:16:34,160 Speaker 2: liquid gold under our feet that will help. 261 00:16:34,520 --> 00:16:34,720 Speaker 4: Right. 262 00:16:34,880 --> 00:16:38,160 Speaker 1: So here's the fact. That's a fact free statement, right. 263 00:16:38,600 --> 00:16:42,400 Speaker 1: So the fact is the United States is the largest 264 00:16:42,520 --> 00:16:47,120 Speaker 1: producer and exporter of oil and gas on the planet, 265 00:16:47,720 --> 00:16:50,920 Speaker 1: and oil and gas development, contrary to a lot of 266 00:16:51,200 --> 00:16:56,400 Speaker 1: climate activists, tremendously exponentially expanded under Biden in the last 267 00:16:56,400 --> 00:17:00,880 Speaker 1: four years. So A, there is no energy emergency. B 268 00:17:01,480 --> 00:17:04,960 Speaker 1: As to drill, baby drill, here's the data, twenty five 269 00:17:05,040 --> 00:17:09,320 Speaker 1: million acres of federal lands are under lease already not 270 00:17:09,480 --> 00:17:13,320 Speaker 1: being developed, twenty five million acres of public lands. Secondly, 271 00:17:13,760 --> 00:17:18,160 Speaker 1: there are nine thousand drilling permits that have been issued. 272 00:17:18,520 --> 00:17:21,919 Speaker 1: They're not being developed either. Why not because there's a 273 00:17:22,040 --> 00:17:25,480 Speaker 1: glut of oiling gas on the market. Why are gasoline 274 00:17:25,480 --> 00:17:28,639 Speaker 1: prices at the pump the lowest they've been in seventy years? 275 00:17:28,720 --> 00:17:32,480 Speaker 1: You're that right, seventy years. Not since the nineteen fifties 276 00:17:32,520 --> 00:17:35,560 Speaker 1: have we seen prices this low at the pump. The 277 00:17:35,640 --> 00:17:38,879 Speaker 1: reason is there is a glut of oiling gas on 278 00:17:38,920 --> 00:17:41,560 Speaker 1: the market right now. That could change, of course, but 279 00:17:41,680 --> 00:17:45,680 Speaker 1: as of right now, there's no basis to declare an 280 00:17:45,920 --> 00:17:49,560 Speaker 1: energy emergency. There certainly is a climate emergency, or, if 281 00:17:49,600 --> 00:17:51,680 Speaker 1: you want to look at it another way, the real 282 00:17:51,880 --> 00:17:56,520 Speaker 1: energy emergency is the failure to convert and transition away 283 00:17:56,560 --> 00:18:00,200 Speaker 1: from fossil fuels and to the cleaner sources of energy 284 00:18:00,560 --> 00:18:03,800 Speaker 1: solar wind, which of course Trump hates because it interferes 285 00:18:03,960 --> 00:18:07,240 Speaker 1: with his golf course in Scotland. But beyond that, where 286 00:18:07,280 --> 00:18:10,160 Speaker 1: is most of the renewable energy being developed right now? 287 00:18:10,400 --> 00:18:16,040 Speaker 1: In Republican states Texas, Oklahoma, Iowa. So the real emergency 288 00:18:16,200 --> 00:18:18,600 Speaker 1: is we need to get on with the business of 289 00:18:18,680 --> 00:18:24,000 Speaker 1: transitioning to cleaner, more efficient, and actually more profitable sources 290 00:18:24,000 --> 00:18:24,520 Speaker 1: of energy. 291 00:18:25,080 --> 00:18:28,400 Speaker 2: So, as you mentioned, he's been vocal about his dislike 292 00:18:28,560 --> 00:18:31,960 Speaker 2: of wind for years. What is he trying to do 293 00:18:32,040 --> 00:18:36,600 Speaker 2: with these executive orders and alternative energy like solar and wind. 294 00:18:37,280 --> 00:18:40,600 Speaker 1: He's put a pause, as he put it, on offshore 295 00:18:41,320 --> 00:18:44,560 Speaker 1: wind projects that are still in the permit process. There 296 00:18:44,560 --> 00:18:47,159 Speaker 1: are nine of them that have already received their permits 297 00:18:47,280 --> 00:18:49,760 Speaker 1: and they aren't caught by the executive order, but there 298 00:18:49,800 --> 00:18:53,080 Speaker 1: are seven others that are not finished with permitting, and 299 00:18:53,119 --> 00:18:55,800 Speaker 1: so he's put a pause on them. And he's threatened 300 00:18:55,800 --> 00:19:00,879 Speaker 1: to withdraw major portions of offshore wind areas, particularly in 301 00:19:00,920 --> 00:19:03,440 Speaker 1: what he calls the Gulf of America, which the rest 302 00:19:03,480 --> 00:19:06,160 Speaker 1: of the world still calls the Gulf of Mexico. And 303 00:19:06,440 --> 00:19:08,399 Speaker 1: that's a problem or an issue that's going to have 304 00:19:08,440 --> 00:19:11,080 Speaker 1: to go to the courts, because once again, the president 305 00:19:11,119 --> 00:19:15,080 Speaker 1: does have authority to withdraw areas of the ocean from development, 306 00:19:15,160 --> 00:19:18,679 Speaker 1: including I would acknowledge wind development. But again there's a 307 00:19:18,760 --> 00:19:22,200 Speaker 1: practice by which you do that, including doing an environmental 308 00:19:22,240 --> 00:19:26,359 Speaker 1: assessment and changing the leasing programs that already have been 309 00:19:26,400 --> 00:19:31,280 Speaker 1: approved and so forth. So as to further development offshore, 310 00:19:32,000 --> 00:19:35,359 Speaker 1: that'll be a subject of litigation as well. Here's the 311 00:19:35,440 --> 00:19:38,639 Speaker 1: downside to all this is it is going to discourage investment. 312 00:19:39,040 --> 00:19:42,840 Speaker 1: There's been a lot of interest from European Union nations 313 00:19:43,000 --> 00:19:46,200 Speaker 1: like Norway and Denmark, which is pioneered a lot of 314 00:19:46,200 --> 00:19:49,240 Speaker 1: offshore win and they want to invest hundreds of millions 315 00:19:49,240 --> 00:19:52,400 Speaker 1: of dollars in offshore win in the United States waters. 316 00:19:52,680 --> 00:19:55,640 Speaker 1: But of course this particular period of time would probably 317 00:19:56,119 --> 00:20:00,080 Speaker 1: discourage that kind of investment. So even though the order 318 00:20:00,200 --> 00:20:04,520 Speaker 1: may lack some legal foundation, they probably will have the 319 00:20:04,560 --> 00:20:10,240 Speaker 1: desired effect of discouraging at least rapid development of wind 320 00:20:10,400 --> 00:20:12,400 Speaker 1: and in some cases probably stolar as well. 321 00:20:13,040 --> 00:20:16,679 Speaker 2: City Group analysts have said that Trump's policies won't stop 322 00:20:16,720 --> 00:20:20,800 Speaker 2: the transition to green energy. So in four years, how 323 00:20:20,840 --> 00:20:23,480 Speaker 2: much damage do you think he can do to the 324 00:20:23,520 --> 00:20:25,280 Speaker 2: advancement of clean energy. 325 00:20:25,280 --> 00:20:29,240 Speaker 1: These orders and decisions and changes in rules and rollbacks 326 00:20:29,240 --> 00:20:32,320 Speaker 1: of environmental rules. I think he's going to get tripped 327 00:20:32,400 --> 00:20:36,320 Speaker 1: up repeatedly in court on those actions. But I do 328 00:20:36,359 --> 00:20:39,280 Speaker 1: think we're losing an awful lot of momentum and opportunity. 329 00:20:39,760 --> 00:20:42,080 Speaker 1: I do think there's going to be a discouraging effect 330 00:20:42,080 --> 00:20:44,919 Speaker 1: on the investment market for the next four years. That 331 00:20:45,040 --> 00:20:48,040 Speaker 1: may take longer than that to rebound, And certainly as 332 00:20:48,080 --> 00:20:51,040 Speaker 1: he drives more and more people away from federal service, 333 00:20:51,240 --> 00:20:54,000 Speaker 1: which he's intent on doing, that's going to have an 334 00:20:54,040 --> 00:20:58,120 Speaker 1: institutional impact on our ability to recover from these four 335 00:20:58,200 --> 00:21:02,080 Speaker 1: years and get back into the aim of transitioning to 336 00:21:02,160 --> 00:21:06,720 Speaker 1: renewable energy and cleaner energy sources, including electric vehicles, all 337 00:21:06,760 --> 00:21:10,040 Speaker 1: of which the marketplace is pushing. So I would agree 338 00:21:10,080 --> 00:21:13,800 Speaker 1: with the comment that he can't stop the transition that's underway, 339 00:21:13,960 --> 00:21:15,560 Speaker 1: he will certainly flow it down. 340 00:21:16,119 --> 00:21:20,920 Speaker 2: This order comes as no surprise. Trump is rescinding environmental 341 00:21:21,359 --> 00:21:26,119 Speaker 2: justice initiatives, and there were nearly eighty such Biden initiatives. 342 00:21:26,400 --> 00:21:27,600 Speaker 2: What impact will that have? 343 00:21:27,920 --> 00:21:30,360 Speaker 1: This is terrible. This is another part of what we're 344 00:21:30,400 --> 00:21:33,679 Speaker 1: seeing out of this administration is outright cruelty to people. 345 00:21:34,000 --> 00:21:37,560 Speaker 1: There's no question but what black, brown, and low income 346 00:21:37,560 --> 00:21:41,399 Speaker 1: communities across the country have for decades been subject to 347 00:21:41,480 --> 00:21:46,399 Speaker 1: disproportionate health and environmental impacts. That's where all the really 348 00:21:46,600 --> 00:21:51,360 Speaker 1: hazardous facilities are cited, whether it's dumping grounds for toxic 349 00:21:51,440 --> 00:21:55,439 Speaker 1: chemicals and toxic waste or whether it's oil refineries, Cancer 350 00:21:55,520 --> 00:21:58,600 Speaker 1: Alley and Louisiana, for example. These are communities that have 351 00:21:58,680 --> 00:22:02,760 Speaker 1: suffered from disproportion that environmental impacts are decades. And finally 352 00:22:02,800 --> 00:22:06,879 Speaker 1: we had an administration who took seriously the ethical and 353 00:22:06,960 --> 00:22:11,120 Speaker 1: the moral obligation to stop that and to bring attention 354 00:22:11,280 --> 00:22:15,520 Speaker 1: to bear on places where people are getting elevated levels 355 00:22:15,520 --> 00:22:20,479 Speaker 1: of cancer, dying prematurely, having miscarriages, and all kinds of 356 00:22:20,640 --> 00:22:24,720 Speaker 1: really serious health and well being impacts. And the truth 357 00:22:24,880 --> 00:22:28,480 Speaker 1: is that we have not devoted enough time through environmental laws, 358 00:22:28,480 --> 00:22:33,119 Speaker 1: through permitting and licensing, to avoid burdening these communities with 359 00:22:33,200 --> 00:22:38,800 Speaker 1: ever more life threatening health threatening activities and bringing enforcement 360 00:22:38,840 --> 00:22:42,400 Speaker 1: actions through EPA and the Department of Justice to target 361 00:22:42,800 --> 00:22:46,560 Speaker 1: those areas where people are dying and getting sick, to 362 00:22:46,640 --> 00:22:49,640 Speaker 1: clean it up and to protect people. We've also seen 363 00:22:49,800 --> 00:22:53,000 Speaker 1: last week that Trump has ordered all five of the 364 00:22:53,080 --> 00:22:56,760 Speaker 1: section chiefs in the Department of Justice that are in 365 00:22:56,840 --> 00:23:01,200 Speaker 1: charge of the environmental enforcement sections of Justice, He's reassigned 366 00:23:01,240 --> 00:23:04,919 Speaker 1: them to Immigration. They're environmental lawyers. They're the lawyers that 367 00:23:05,000 --> 00:23:08,520 Speaker 1: are leading the effort in the United States to keep 368 00:23:08,560 --> 00:23:12,920 Speaker 1: communities safe, to bring polluters to justice, and he's decimating 369 00:23:13,000 --> 00:23:15,960 Speaker 1: the capability of these agencies to do that. That's the 370 00:23:16,000 --> 00:23:17,439 Speaker 1: real harm that we're seeing. 371 00:23:18,040 --> 00:23:22,800 Speaker 2: His administration has stopped all pending environmental litigation, But are 372 00:23:22,960 --> 00:23:26,240 Speaker 2: they going to need environmental lawyers to be fighting all 373 00:23:26,280 --> 00:23:28,840 Speaker 2: the lawsuits that are going to come down because of 374 00:23:28,840 --> 00:23:29,879 Speaker 2: these executive orders. 375 00:23:30,359 --> 00:23:32,920 Speaker 1: Well, that's the irony of what's going on here. By 376 00:23:33,040 --> 00:23:38,880 Speaker 1: taking out senior career professionals in the federal agencies, it's 377 00:23:38,880 --> 00:23:41,160 Speaker 1: actually going to make what Trump wants to do even 378 00:23:41,280 --> 00:23:45,159 Speaker 1: harder to do. It'll mean that instead of carefully following 379 00:23:45,480 --> 00:23:48,320 Speaker 1: the law, crossing the t's dotting the eyes and all 380 00:23:48,359 --> 00:23:50,439 Speaker 1: of that, they're going to keep making the kinds of 381 00:23:50,520 --> 00:23:54,160 Speaker 1: mistakes they did in Trump's first administration. In their hurry 382 00:23:54,240 --> 00:23:56,960 Speaker 1: to do this in the demand or you know, to 383 00:23:57,000 --> 00:23:59,639 Speaker 1: be loyal to the president, not loyal to the rule 384 00:23:59,680 --> 00:24:02,120 Speaker 1: of law, they're going to make all kinds of mistakes. 385 00:24:02,119 --> 00:24:05,400 Speaker 1: But here's the problem. It takes time to chase down 386 00:24:05,440 --> 00:24:08,399 Speaker 1: all these things. That's another strategy here is, you know, 387 00:24:08,600 --> 00:24:11,800 Speaker 1: flood the zone, throw so many things out there that 388 00:24:11,880 --> 00:24:15,280 Speaker 1: people will be dispersed and can't keep up with everything 389 00:24:15,320 --> 00:24:18,359 Speaker 1: he's doing, can't get all these cases into court. And 390 00:24:18,400 --> 00:24:21,760 Speaker 1: get them heard, get them reversed. That's what they're counting on. 391 00:24:21,840 --> 00:24:25,560 Speaker 1: I think is just do so much that some stuff 392 00:24:25,600 --> 00:24:27,800 Speaker 1: is just going to go through because there isn't enough 393 00:24:27,880 --> 00:24:30,560 Speaker 1: opposition on the other side, and there isn't enough time 394 00:24:30,840 --> 00:24:34,680 Speaker 1: to get them all turned around or overturned. So eventually 395 00:24:34,800 --> 00:24:37,439 Speaker 1: I think you're going to see that happening. It'll be 396 00:24:37,520 --> 00:24:40,919 Speaker 1: later in the four years, but you know, apparently the 397 00:24:40,960 --> 00:24:43,080 Speaker 1: strategy is stop us if you can. 398 00:24:43,840 --> 00:24:46,840 Speaker 2: It's always a pleasure to talk to the spotted Owl's lawyer. 399 00:24:46,960 --> 00:24:50,360 Speaker 2: Thanks Pat. That's Professor Pat Parento of the Vermont Law 400 00:24:50,440 --> 00:24:54,240 Speaker 2: and Graduate School. Coming up next, The tiny fish caught 401 00:24:54,280 --> 00:24:57,200 Speaker 2: in the culture Wars. I'm June Grosso. When you're listening 402 00:24:57,200 --> 00:24:58,720 Speaker 2: to Bloomberg, they. 403 00:24:58,600 --> 00:25:01,000 Speaker 7: Talk about the Delta smell, which is a fish that's 404 00:25:01,119 --> 00:25:04,000 Speaker 7: is big, but it is it is really not doesn't 405 00:25:04,040 --> 00:25:06,640 Speaker 7: have to be protected because it's in other areas. It's 406 00:25:06,680 --> 00:25:10,400 Speaker 7: in numerous other areas, so it doesn't have to be protected. 407 00:25:10,680 --> 00:25:13,440 Speaker 7: The people of California have to be protected. 408 00:25:13,760 --> 00:25:17,719 Speaker 2: The Delta smelt is a three inch silvery blue fish 409 00:25:18,000 --> 00:25:21,800 Speaker 2: that has somehow become a scapegoat or perhaps better said, 410 00:25:22,440 --> 00:25:28,159 Speaker 2: escapefish for legal protections. To save endangered species. Well before 411 00:25:28,200 --> 00:25:32,879 Speaker 2: you became president, Donald Trump has been blaming California's wildfire 412 00:25:33,000 --> 00:25:37,040 Speaker 2: problems on the tiny fish, claiming that needed water is 413 00:25:37,080 --> 00:25:39,800 Speaker 2: being diverted because of the Delta Smelt. 414 00:25:40,080 --> 00:25:43,080 Speaker 9: The water is cut off upstate, up in the north, 415 00:25:43,160 --> 00:25:46,080 Speaker 9: you know that, And the water in order to protect 416 00:25:46,080 --> 00:25:49,320 Speaker 9: a certain little tiny fish called the smelt, they send 417 00:25:49,400 --> 00:25:52,199 Speaker 9: millions and millions of gallons of water out to the 418 00:25:52,200 --> 00:25:54,040 Speaker 9: Pacific Ocean Way up north. 419 00:25:54,359 --> 00:25:57,960 Speaker 2: But Governor Gavin Newsom says TROMP has the facts all wrong, 420 00:25:58,280 --> 00:26:00,600 Speaker 2: and the state reservoirs are full. 421 00:26:01,080 --> 00:26:03,080 Speaker 8: I don't know what he's referring to when he talks 422 00:26:03,080 --> 00:26:06,720 Speaker 8: about the Delta Smelt and reservoirs. The reservoirs are completely full. 423 00:26:06,720 --> 00:26:10,400 Speaker 8: Of the state reservoirs here in southern California. That missing disinformation. 424 00:26:10,440 --> 00:26:12,800 Speaker 8: I don't think advantages or aids any. 425 00:26:12,560 --> 00:26:16,119 Speaker 2: Of us despite those facts. Trump signed in an executive 426 00:26:16,200 --> 00:26:20,320 Speaker 2: order on day one targeting the Delta Smelt entitled Putting 427 00:26:20,359 --> 00:26:25,600 Speaker 2: People over Fish Stopping Radical Environmentalism to provide water to 428 00:26:25,680 --> 00:26:30,680 Speaker 2: Southern California. Joining me is Caleb Scoville, a sociology professor 429 00:26:30,680 --> 00:26:34,760 Speaker 2: at Tuff's University who's writing a book on the politics 430 00:26:34,760 --> 00:26:38,080 Speaker 2: of the Delta smelt. So Caleb tell us a little 431 00:26:38,119 --> 00:26:40,240 Speaker 2: about this little fish. 432 00:26:40,520 --> 00:26:44,960 Speaker 10: The Delta smelt is a small, translucent fish. You know, 433 00:26:45,000 --> 00:26:48,520 Speaker 10: it's not two three inches long. It lives in the 434 00:26:48,560 --> 00:26:53,360 Speaker 10: Sacramento San Joaquin Delta, which is where California's major river 435 00:26:53,480 --> 00:26:56,840 Speaker 10: systems converge just east of the San Francisco Bay where 436 00:26:56,880 --> 00:26:59,560 Speaker 10: before the rivers kind of conversion flow out to the bay. 437 00:27:00,160 --> 00:27:04,200 Speaker 10: Fish that only lives in that area. It's California's largest estuary, 438 00:27:04,440 --> 00:27:08,359 Speaker 10: and it is also the center of California's water distribution system. 439 00:27:08,800 --> 00:27:12,760 Speaker 10: So it's where giant pumps were installed in the mid 440 00:27:12,800 --> 00:27:17,239 Speaker 10: twentieth century to irrigate farmland in the Central Valley San 441 00:27:17,320 --> 00:27:21,800 Speaker 10: Joaquin Valley, and also provides water to major cities in 442 00:27:21,840 --> 00:27:24,560 Speaker 10: central and southern California, as well as the Silicon Valley. 443 00:27:24,720 --> 00:27:27,000 Speaker 10: So the fish is small, but it's a native fish 444 00:27:27,119 --> 00:27:29,440 Speaker 10: that used to be one of the most abundant species 445 00:27:29,720 --> 00:27:33,600 Speaker 10: in that ecosystem, and it has declined in recent decades 446 00:27:33,720 --> 00:27:36,760 Speaker 10: because of the human transformations of its ecosystem. 447 00:27:37,160 --> 00:27:40,600 Speaker 2: When did it start to become controversial. 448 00:27:40,160 --> 00:27:43,760 Speaker 10: That's a complicated question. You know, the species became considered 449 00:27:43,960 --> 00:27:47,040 Speaker 10: for listing under the Endangered Species Act in the late 450 00:27:47,119 --> 00:27:50,159 Speaker 10: nineteen eighties and early nineteen nineties, and at the time, 451 00:27:50,400 --> 00:27:55,320 Speaker 10: you know, it was somewhat controversial because regulators and stakeholders, 452 00:27:55,520 --> 00:27:59,199 Speaker 10: you know, agricultural interest cities, understood that it may complicate 453 00:27:59,359 --> 00:28:03,320 Speaker 10: the operation California's water infrastructure. So it was controversial even 454 00:28:03,359 --> 00:28:05,960 Speaker 10: before it was listed under the Endangered Species Act. But 455 00:28:06,200 --> 00:28:10,480 Speaker 10: this controversy was mostly within the world of California water policy. 456 00:28:10,680 --> 00:28:13,320 Speaker 10: So in the early nineteen nineties, there were you know, 457 00:28:13,480 --> 00:28:16,080 Speaker 10: concerns about what the effects of protecting this species would be. 458 00:28:16,160 --> 00:28:18,919 Speaker 10: When it was listed under the Endangered Species Act, it 459 00:28:18,960 --> 00:28:21,920 Speaker 10: continued to be controversial, but the listing of this species 460 00:28:21,960 --> 00:28:25,840 Speaker 10: and also conflict over water quality standards between the federal 461 00:28:25,840 --> 00:28:28,080 Speaker 10: government and the state government resulted actually in a lot 462 00:28:28,080 --> 00:28:31,879 Speaker 10: of cooperation to avoid future lawsuits, and so the controversy 463 00:28:31,960 --> 00:28:34,080 Speaker 10: sort of died down a little bit, and it really 464 00:28:34,160 --> 00:28:38,680 Speaker 10: wasn't until the mid two thousands that the controversy picked 465 00:28:38,720 --> 00:28:42,760 Speaker 10: up again. And this was initially precipitated by a legal 466 00:28:42,760 --> 00:28:46,320 Speaker 10: decision by a judge in California, actually a Republican appointed 467 00:28:46,400 --> 00:28:50,680 Speaker 10: judge that the regulations protecting this species from those pumps 468 00:28:50,680 --> 00:28:53,600 Speaker 10: that send water to farms and cities in California. The 469 00:28:53,640 --> 00:28:55,680 Speaker 10: way that they were running the pump was in violation 470 00:28:55,760 --> 00:28:58,800 Speaker 10: of these Dangerous Species Acts, and so this resulted in 471 00:28:58,840 --> 00:29:01,600 Speaker 10: a brief but dramatic shut off of the pump and 472 00:29:01,600 --> 00:29:03,920 Speaker 10: then in order that new regulations had to be put 473 00:29:03,920 --> 00:29:06,800 Speaker 10: in place seven two eight that this unfolded. 474 00:29:06,840 --> 00:29:11,240 Speaker 2: Before that was anything in particular done when it was 475 00:29:11,280 --> 00:29:14,760 Speaker 2: put on the Endangered Species list to help preserve it. 476 00:29:15,240 --> 00:29:18,160 Speaker 10: Yeah, So when a species is listed under the Endangered 477 00:29:18,160 --> 00:29:22,280 Speaker 10: Species Act, so any federal agency that has a project 478 00:29:22,520 --> 00:29:25,800 Speaker 10: that's going to affect the species and could potentially cause 479 00:29:25,960 --> 00:29:29,120 Speaker 10: harm to the species has to come up with basically 480 00:29:29,400 --> 00:29:33,280 Speaker 10: a plan to avoid jeopardizing and the continued existence of 481 00:29:33,280 --> 00:29:36,240 Speaker 10: that species. So there were regulations that essentially regulated the 482 00:29:36,240 --> 00:29:39,040 Speaker 10: amount of water that could be pumped at particular times, 483 00:29:39,160 --> 00:29:41,560 Speaker 10: and then there were a series of other measures, you know, 484 00:29:41,640 --> 00:29:45,480 Speaker 10: including various ways of managing water that were tried to 485 00:29:46,160 --> 00:29:49,000 Speaker 10: save the species from extinction. It's complicated. I mean, there 486 00:29:49,000 --> 00:29:52,160 Speaker 10: were some habitat restoration projects. There was something called the 487 00:29:52,520 --> 00:29:55,480 Speaker 10: Environmental Water Account, which is essentially like setting aside a 488 00:29:55,480 --> 00:29:57,880 Speaker 10: certain amount of water that could be used to pump 489 00:29:57,880 --> 00:30:00,440 Speaker 10: into its habitat at certain periods of time. All of 490 00:30:00,520 --> 00:30:02,480 Speaker 10: us is basically a way of managing water to try 491 00:30:02,520 --> 00:30:05,720 Speaker 10: to balance the need of ecosystems and the human interest 492 00:30:05,800 --> 00:30:08,360 Speaker 10: in extracting water from its habitat. Now, I should mention 493 00:30:08,400 --> 00:30:11,440 Speaker 10: that the ADULTA smelt is just one species among many 494 00:30:11,680 --> 00:30:15,360 Speaker 10: that are affected by California's water distribution system. Salmon that 495 00:30:15,440 --> 00:30:17,440 Speaker 10: our native to that area are also listed on the 496 00:30:17,520 --> 00:30:20,480 Speaker 10: Dangered Species Act, as our sturgeon, and there's a whole 497 00:30:20,480 --> 00:30:23,880 Speaker 10: complex ecosystem. So the ADULTA smelt, it's one species, but 498 00:30:23,920 --> 00:30:26,320 Speaker 10: it's also very sensitive species, so it's often treated as 499 00:30:26,320 --> 00:30:29,200 Speaker 10: a kind of indicator species for the overall quality and 500 00:30:29,320 --> 00:30:32,760 Speaker 10: help of the ecosystem. And these initial efforts, it was 501 00:30:32,800 --> 00:30:35,640 Speaker 10: called the calf Ed program, were intended to sort of 502 00:30:35,640 --> 00:30:38,920 Speaker 10: balance the needs of the environment and people's interest in water, 503 00:30:39,200 --> 00:30:41,240 Speaker 10: and it also as a way to provide stability to 504 00:30:41,280 --> 00:30:44,320 Speaker 10: avoid future lawsuits that might shut down the system because 505 00:30:44,320 --> 00:30:45,840 Speaker 10: people were really interested in stability. 506 00:30:46,200 --> 00:30:49,520 Speaker 2: When the judge issued this order, how did it change 507 00:30:49,640 --> 00:30:54,400 Speaker 2: what California was doing with its water systems or did it? 508 00:30:54,400 --> 00:30:57,400 Speaker 10: It did require the agencies to rewrite the way that 509 00:30:57,440 --> 00:31:02,240 Speaker 10: they were regulating the pumps and managing water in dance. 510 00:31:02,360 --> 00:31:05,040 Speaker 10: I don't think it's fair to say that it completely 511 00:31:05,080 --> 00:31:07,360 Speaker 10: reorganized the way water was used in the States. 512 00:31:07,560 --> 00:31:08,200 Speaker 1: It's a very. 513 00:31:08,040 --> 00:31:12,360 Speaker 10: Complex regulatory process that involves using the best available science 514 00:31:12,480 --> 00:31:15,560 Speaker 10: to come up with a plan to avoid jeopardizing the 515 00:31:15,600 --> 00:31:18,040 Speaker 10: continued existence of this species. So there was an initial 516 00:31:18,040 --> 00:31:20,400 Speaker 10: shutdown of water for just a very short amount of 517 00:31:20,400 --> 00:31:23,760 Speaker 10: time days, and then there was a new regulatory regime 518 00:31:23,760 --> 00:31:25,240 Speaker 10: that was put in place, and that was in place 519 00:31:25,240 --> 00:31:28,320 Speaker 10: for many years. Overall, protections of the Delta Smelt only 520 00:31:28,360 --> 00:31:31,360 Speaker 10: account for a pretty small, pretty marginal amount of water 521 00:31:31,560 --> 00:31:33,640 Speaker 10: that could have otherwise been used by people. 522 00:31:33,800 --> 00:31:35,120 Speaker 1: But it was the dramatic. 523 00:31:34,760 --> 00:31:37,240 Speaker 10: Shut off that actually created a lot of headlines. And 524 00:31:37,320 --> 00:31:41,520 Speaker 10: so really the controversy even then was fairly muted, and 525 00:31:41,760 --> 00:31:45,280 Speaker 10: what made it a national controversy was actually not anything 526 00:31:45,280 --> 00:31:48,120 Speaker 10: regulatory at all or anything legal. It was when Sean 527 00:31:48,160 --> 00:31:51,400 Speaker 10: Hannity had an entire episode of his show on the 528 00:31:51,440 --> 00:31:56,240 Speaker 10: Delta Smelt sort of blaming drought and Great Recession era 529 00:31:56,600 --> 00:31:59,280 Speaker 10: hardships on the protections of the Delta Smelt. So that 530 00:31:59,320 --> 00:32:01,760 Speaker 10: was in two thousand, not actually more than a year 531 00:32:01,840 --> 00:32:05,440 Speaker 10: after the decision that resulted in the brief shut off 532 00:32:05,480 --> 00:32:07,640 Speaker 10: of the pumps. So Hannity is actually the person who 533 00:32:07,760 --> 00:32:10,880 Speaker 10: brought the Delta smelt into the national public sphere. 534 00:32:11,040 --> 00:32:14,280 Speaker 2: And why do you think this caught on as a controversy. 535 00:32:14,640 --> 00:32:17,600 Speaker 10: First of all, was the context. Barack Obama had just 536 00:32:17,640 --> 00:32:20,360 Speaker 10: become president of the United States. There was also a 537 00:32:20,400 --> 00:32:23,560 Speaker 10: recession which was causing a lot of employment right after 538 00:32:23,600 --> 00:32:27,240 Speaker 10: the financial crisis of two thousand and eight. California also 539 00:32:27,400 --> 00:32:30,040 Speaker 10: at that time, and it continues to be with Trump 540 00:32:30,200 --> 00:32:33,320 Speaker 10: just kind of an avatar for everything that is supposedly 541 00:32:33,360 --> 00:32:37,120 Speaker 10: wrong with liberalism and environmentalism in the United States for 542 00:32:37,240 --> 00:32:42,200 Speaker 10: a certain subset of conservative commentators. So those aspects sort 543 00:32:42,200 --> 00:32:45,400 Speaker 10: of align. And then the delta smelt, being a very 544 00:32:45,440 --> 00:32:49,360 Speaker 10: small and obscure species that is uncharismatic, you know, it's 545 00:32:49,360 --> 00:32:51,760 Speaker 10: two inches long, it has a funny name, it became 546 00:32:51,800 --> 00:32:56,440 Speaker 10: a vessel for the implicit message that liberal environmentalists in 547 00:32:56,760 --> 00:33:01,120 Speaker 10: cities care more about a small, uncharismatic fish that they 548 00:33:01,120 --> 00:33:04,160 Speaker 10: care about hardworking, honest people like you. So there's a 549 00:33:04,240 --> 00:33:07,400 Speaker 10: kind of implicit message and sometimes very explicit message that 550 00:33:07,560 --> 00:33:11,800 Speaker 10: environmentalists simply don't care about their fellow Americans. And you 551 00:33:11,840 --> 00:33:13,800 Speaker 10: know that could also go for liberals, or could go 552 00:33:13,840 --> 00:33:17,040 Speaker 10: for Obama, or could go for in this case Skeavin Newsom. 553 00:33:17,400 --> 00:33:19,520 Speaker 10: And you know, because of the delta smelt is a 554 00:33:19,560 --> 00:33:23,960 Speaker 10: species that doesn't have obvious use to people. Isn't large 555 00:33:24,040 --> 00:33:26,520 Speaker 10: or beautiful or charismatic. Right, It's not the bald eagle, 556 00:33:26,560 --> 00:33:29,440 Speaker 10: it's not even the salmon. It becomes a very useful 557 00:33:29,560 --> 00:33:32,560 Speaker 10: symbol for everything that's supposed to be wrong with environmentalism 558 00:33:32,640 --> 00:33:33,160 Speaker 10: in America. 559 00:33:33,520 --> 00:33:36,680 Speaker 2: You wrote that the frequent usage of descriptors like tiny 560 00:33:36,800 --> 00:33:40,240 Speaker 2: or little suggests that the delta smelt small size and 561 00:33:40,360 --> 00:33:43,880 Speaker 2: lack of charisma made it the perfect icon to drum 562 00:33:43,960 --> 00:33:47,600 Speaker 2: up right wing resentment, allowing you to become a divisive 563 00:33:47,680 --> 00:33:51,920 Speaker 2: cultural object. Yeah, I mean it's it's a culture wars. 564 00:33:51,680 --> 00:33:55,680 Speaker 10: Fish now, Yeah, exactly. And so there's a very complex 565 00:33:55,680 --> 00:33:59,440 Speaker 10: and interesting history of California water that the delta smelt 566 00:33:59,440 --> 00:34:02,520 Speaker 10: plays a role. And the delta smelt is regulated by 567 00:34:02,520 --> 00:34:06,240 Speaker 10: the Native Species Act. It has accounted for some amount 568 00:34:06,280 --> 00:34:09,280 Speaker 10: of water being set aside and not used by people 569 00:34:09,440 --> 00:34:10,120 Speaker 10: over the years. 570 00:34:10,239 --> 00:34:10,840 Speaker 1: That's true. 571 00:34:10,880 --> 00:34:14,040 Speaker 10: However, this is a much smaller proportion than many critics 572 00:34:14,040 --> 00:34:17,800 Speaker 10: would imagine. And also those regulations that protect the Delta 573 00:34:17,800 --> 00:34:20,439 Speaker 10: smelt also protect the quality of the water for people 574 00:34:20,440 --> 00:34:22,759 Speaker 10: to use. Because of where the pumps are, There's only 575 00:34:22,800 --> 00:34:25,640 Speaker 10: so much you can extract at a particular time, especially, 576 00:34:25,680 --> 00:34:27,920 Speaker 10: you know, depending on hydrologic conditions, there's only so much 577 00:34:27,920 --> 00:34:31,279 Speaker 10: you can extract without pulling in seawater right becoming too 578 00:34:31,760 --> 00:34:34,640 Speaker 10: salty to even use to irrigate crops or drink. So 579 00:34:35,040 --> 00:34:37,040 Speaker 10: the idea, you know, that you could just stop these 580 00:34:37,080 --> 00:34:39,400 Speaker 10: regulations and take as much wonder as you want is 581 00:34:39,440 --> 00:34:42,120 Speaker 10: not true at all. So the culture war thing, you know, 582 00:34:42,280 --> 00:34:44,440 Speaker 10: in two thousand and nine, I see that as kind 583 00:34:44,440 --> 00:34:46,759 Speaker 10: of the moment where the delta smelt escaped the world 584 00:34:46,760 --> 00:34:49,799 Speaker 10: of California water politics. And I've done a systematic media 585 00:34:49,840 --> 00:34:53,520 Speaker 10: analysis to show that there's no relationship between the hydrologic 586 00:34:53,520 --> 00:34:57,120 Speaker 10: effects of protecting this species and when the controversy flares up. 587 00:34:57,200 --> 00:35:00,720 Speaker 10: So really, the Delta smelt as culture war or symbol 588 00:35:00,800 --> 00:35:03,520 Speaker 10: or culture war object has very little to do with 589 00:35:03,640 --> 00:35:04,879 Speaker 10: the world of California water. 590 00:35:05,239 --> 00:35:10,399 Speaker 2: Trump has blamed protections for the Delta smelt for the 591 00:35:10,440 --> 00:35:16,160 Speaker 2: devastating California wildfires, recently saying it's responsible for the gaps 592 00:35:16,239 --> 00:35:18,360 Speaker 2: in water access. 593 00:35:17,960 --> 00:35:21,040 Speaker 10: Yes, he had, and let's be clear, that's completely false. 594 00:35:21,160 --> 00:35:22,160 Speaker 10: There's zero truth to it. 595 00:35:22,360 --> 00:35:22,520 Speaker 4: Right. 596 00:35:22,840 --> 00:35:25,200 Speaker 10: You can see why that connection would pop into his 597 00:35:25,320 --> 00:35:28,839 Speaker 10: mind because there are regulations of the species that do 598 00:35:28,960 --> 00:35:31,920 Speaker 10: regulate how much water can be extracted from the sacrament 599 00:35:31,960 --> 00:35:35,480 Speaker 10: of San jua Quing Delta to California's water project, which 600 00:35:35,480 --> 00:35:38,160 Speaker 10: are the infrastructure system, So you can understand the connection. 601 00:35:38,560 --> 00:35:41,520 Speaker 10: But it's very easy to refute what he said by 602 00:35:41,560 --> 00:35:45,200 Speaker 10: looking at the reservoir levels in California and in Southern 603 00:35:45,239 --> 00:35:48,120 Speaker 10: California in particular, most of which are at or above 604 00:35:48,400 --> 00:35:50,600 Speaker 10: average for this time of year. There's plenty of water, 605 00:35:50,719 --> 00:35:52,960 Speaker 10: so it's not a supply issue. If there was an 606 00:35:52,960 --> 00:35:55,239 Speaker 10: issue with how much water we could take out of 607 00:35:55,320 --> 00:35:58,640 Speaker 10: the delta because of endangered Species X protection, it would 608 00:35:58,680 --> 00:36:01,279 Speaker 10: be reflected in the reservoir life. There were issues at 609 00:36:01,280 --> 00:36:04,080 Speaker 10: the local level for the system that was designed to 610 00:36:04,120 --> 00:36:06,400 Speaker 10: handle maybe a house fire, to be able to handle 611 00:36:06,600 --> 00:36:09,359 Speaker 10: a city fire, right and I'm not qualified to say 612 00:36:09,360 --> 00:36:12,440 Speaker 10: what should have been done there, But the invocation of 613 00:36:12,480 --> 00:36:15,640 Speaker 10: the delta smelt is a complete misdirection and it does 614 00:36:15,680 --> 00:36:18,799 Speaker 10: nothing to help the situation, and in fact, it distracts 615 00:36:18,840 --> 00:36:22,040 Speaker 10: from the real tragedy and the real problems that we 616 00:36:22,080 --> 00:36:25,040 Speaker 10: face in a climate change world, and also just in 617 00:36:25,320 --> 00:36:27,680 Speaker 10: cities that face hazards that we need to manage. 618 00:36:27,920 --> 00:36:31,520 Speaker 2: So what's the status of the Delta smelt right now? 619 00:36:31,600 --> 00:36:34,399 Speaker 10: Yeah, the Delta smelt remains listed on the endangered species list, 620 00:36:34,600 --> 00:36:37,719 Speaker 10: as experts working in the systems a natural scientists working 621 00:36:37,719 --> 00:36:41,520 Speaker 10: in the system would say, it's arguably functionally extinct. So 622 00:36:41,600 --> 00:36:43,440 Speaker 10: that doesn't mean that there are no Delta smelt left 623 00:36:43,440 --> 00:36:45,759 Speaker 10: in the system, but there are very few. It is 624 00:36:45,760 --> 00:36:48,319 Speaker 10: not what it used to be. There's now actually many 625 00:36:48,360 --> 00:36:51,920 Speaker 10: more Delta smeuths living in a captive population sort of 626 00:36:51,920 --> 00:36:55,720 Speaker 10: trying to maintain the species and do some experimental releases 627 00:36:55,760 --> 00:36:58,880 Speaker 10: to try to potentially propagate it permanently in the delta 628 00:36:59,040 --> 00:37:01,520 Speaker 10: than there are in the wild. So it's actually kind 629 00:37:01,560 --> 00:37:05,040 Speaker 10: of a sad example of what we've done to ecosystems. 630 00:37:05,320 --> 00:37:07,440 Speaker 10: But it's not as much of a factor in California 631 00:37:07,640 --> 00:37:10,279 Speaker 10: water policy as it might seem given how much we're 632 00:37:10,280 --> 00:37:13,320 Speaker 10: talking about it, And there are other species protections like salmon. 633 00:37:13,640 --> 00:37:16,279 Speaker 10: And you'll notice that the folks who will vilify the 634 00:37:16,320 --> 00:37:19,200 Speaker 10: Delta smelt and regulations for the adulta Belth rarely mentioned 635 00:37:19,200 --> 00:37:22,239 Speaker 10: Sam because they know that driving salmon into extation is 636 00:37:22,239 --> 00:37:25,440 Speaker 10: not a very politically popular project. So I think that 637 00:37:25,480 --> 00:37:28,040 Speaker 10: says something about why the Delta Smelt is such a 638 00:37:28,560 --> 00:37:32,600 Speaker 10: useful strategic object for people who want to play kind 639 00:37:32,600 --> 00:37:35,520 Speaker 10: of divisive culture war games against environmentalists. 640 00:37:35,560 --> 00:37:39,359 Speaker 2: It's really fascinating how this tiny fish got caught in 641 00:37:39,400 --> 00:37:43,560 Speaker 2: the culture wars. Thanks so much, Caleb. That's tough, University 642 00:37:43,600 --> 00:37:47,520 Speaker 2: sociology Professor Caleb Schofield. And that's it for this edition 643 00:37:47,560 --> 00:37:50,200 Speaker 2: of The Bloomberg Law Show. Remember you can always get 644 00:37:50,200 --> 00:37:53,360 Speaker 2: the latest legal news on our Bloomberg Law Podcast. You 645 00:37:53,400 --> 00:37:57,480 Speaker 2: can find them on Apple Podcasts, Spotify, and at www 646 00:37:57,640 --> 00:38:01,920 Speaker 2: dot Bloomberg dot com, slash podcast Slash Law, and remember 647 00:38:01,920 --> 00:38:04,879 Speaker 2: to tune into The Bloomberg Law Show every weeknight at 648 00:38:04,920 --> 00:38:08,399 Speaker 2: ten pm Wall Street Time. I'm June Grosso, and you're 649 00:38:08,480 --> 00:38:09,680 Speaker 2: listening to Bloomberg