WEBVTT - A Tiny Fish Caught in the Culture Wars 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:08.480 --> 0:00:12.200 The Trump administration is asking the Supreme Court to pause 0:00:12.360 --> 0:00:16.520 four cases so that the federal agencies involved can reassess 0:00:16.600 --> 0:00:20.600 the government's position in the cases, signaling the new administration 0:00:20.880 --> 0:00:25.040 will change the positions taken by the Biden administration. The 0:00:25.120 --> 0:00:29.920 cases involved a Biden regulation granting loan forgiveness for defrauded 0:00:30.040 --> 0:00:34.680 student borrowers, an EPA waiver to California, and two other 0:00:34.800 --> 0:00:40.120 cases involving Biden EPA regulations joining me? Is constitutional law 0:00:40.159 --> 0:00:43.280 expert Harold Krant, a professor at the Chicago Kent College 0:00:43.320 --> 0:00:46.720 of Law, How is it fairly recent that a new 0:00:46.760 --> 0:00:52.240 administration comes in and changes the federal government's position before 0:00:52.280 --> 0:00:53.240 the Supreme Court? 0:00:53.440 --> 0:00:57.200 It was a long standing practice where the new administration 0:00:57.240 --> 0:01:00.200 would defend the legal positions of the prior administration. That 0:01:00.480 --> 0:01:04.479 has been jettisoned by both Democrats and Republicans in more 0:01:04.520 --> 0:01:07.000 recent years. And I think it makes some sense. Why 0:01:07.000 --> 0:01:09.800 waste the court's time to go over something when the 0:01:09.800 --> 0:01:13.840 administration may change position and moved out the whole controversy here? 0:01:13.920 --> 0:01:16.040 The administration is asking for a pause. 0:01:16.600 --> 0:01:19.480 Are they really asking for a pause or since they're 0:01:19.520 --> 0:01:23.720 asking to stop all written briefing deadlines, does that put 0:01:23.760 --> 0:01:25.399 the cases on indefinite hold? 0:01:25.959 --> 0:01:28.200 It puts the cases on indefinite hold. They're asking the 0:01:28.240 --> 0:01:32.520 court for that leeway in order for the agencies involved 0:01:32.520 --> 0:01:36.480 in this case, mostly the EPA, to reevaluate and change position. 0:01:37.000 --> 0:01:39.960 And if the EPA does change the position in three 0:01:39.959 --> 0:01:43.720 of the four cases, that would moot out the current controversies. 0:01:43.720 --> 0:01:46.119 At their court agreed to accept they. 0:01:46.000 --> 0:01:50.680 Want to review Biden's regulation granting loan forgiveness for defrauded 0:01:50.800 --> 0:01:51.960 student borrowers. 0:01:52.640 --> 0:01:55.560 So in this case, I think it's quite a sound policy, 0:01:55.600 --> 0:01:59.640 but it's one that the administration can change. The administration 0:01:59.720 --> 0:02:03.040 has set up certain kinds of regulations that say, if 0:02:03.040 --> 0:02:06.120 the student can show that he or she was defrauded 0:02:06.160 --> 0:02:10.320 by the educational institution, then that creates a borrower defense 0:02:10.600 --> 0:02:13.960 and the student need not pay back student loans. Obviously, 0:02:14.000 --> 0:02:16.920 this is controversial as controversial because President Trump was a 0:02:16.960 --> 0:02:20.120 defendant himself in for the Trump University for some of 0:02:20.120 --> 0:02:24.600 these prior cases. But it's a relatively straightforward Department of 0:02:24.720 --> 0:02:29.639 Education policy. Nonetheless, the new Department of Education may want 0:02:29.720 --> 0:02:34.760 to reconsider and to change the regulations and that therefore 0:02:34.800 --> 0:02:38.080 would again moved out the case and the court need 0:02:38.120 --> 0:02:42.519 not waste its resources in deciding whether the Biden administration 0:02:42.840 --> 0:02:45.959 had the authority to create this boro defense, which the 0:02:46.040 --> 0:02:50.800 Circuit questioned. But certainly this has caused some concern for 0:02:51.480 --> 0:02:54.080 students who are deciding whether they have to pay back 0:02:54.160 --> 0:02:57.520 the loans from education that they may not have actually received. 0:02:57.800 --> 0:03:03.200 Another case centers on the Environmental Protection Agency's decision to 0:03:03.520 --> 0:03:08.120 grant California permission to set stronger climate. 0:03:07.800 --> 0:03:08.800 Rules for cars. 0:03:08.840 --> 0:03:11.880 So this is that sort of infamous California waiver. 0:03:12.400 --> 0:03:15.640 Yeah, and the Trump administration actually limited that waiver during 0:03:15.760 --> 0:03:19.440 the Glasgow round, so it's not surprising that the administration 0:03:19.480 --> 0:03:22.799 will take another look at allowing California to impose these 0:03:22.840 --> 0:03:27.679 relatively stringent requirements on one bill manufacturers. Ironically, if you will, 0:03:27.760 --> 0:03:31.680 the case actually has to do with standing question about 0:03:31.720 --> 0:03:35.480 whether there is kind of addressability for a claim by 0:03:35.920 --> 0:03:39.840 industry analysis is that this rule will change the kind 0:03:39.880 --> 0:03:44.640 of composition of cars in terms of electric, hybrid or 0:03:44.720 --> 0:03:48.360 gas powered that will be marketed across the country. So 0:03:48.520 --> 0:03:52.280 the case doesn't really relate to this exemption for California 0:03:52.280 --> 0:03:54.320 at all. It has to do with whether fuel producers 0:03:54.360 --> 0:03:58.720 can challenge it. But nonetheless, what the Trump administration said was, 0:03:59.040 --> 0:04:02.280 we're thinking of limiting the waiver the California So the 0:04:02.440 --> 0:04:06.760 entire challenge, including the adjustibility issue before the court will 0:04:06.760 --> 0:04:08.520 be mooted out. And just to add, I mean, it 0:04:08.560 --> 0:04:10.720 may not be technically mooted out, but there's really no 0:04:11.240 --> 0:04:14.520 pressing need for the Court to continue its analysis. It's 0:04:14.520 --> 0:04:17.640 probably alive as an Article three matter, but prudentially there's 0:04:17.640 --> 0:04:19.479 no reason for the court to hear the case. 0:04:19.960 --> 0:04:22.720 I mean, why even say that they're just considering it. 0:04:22.839 --> 0:04:25.600 On his first day back in office, Trump said in 0:04:25.640 --> 0:04:28.560 an executive order that he was seeking the repeal of 0:04:28.680 --> 0:04:32.599 the new waiver granted to California in December. So it 0:04:32.680 --> 0:04:35.320 seems obvious where they are. Why are they pretending they're just. 0:04:35.360 --> 0:04:37.880 Going to look at it, because it hasn't happened yet. 0:04:37.960 --> 0:04:40.479 You know, once we get some senior administrators at EPA 0:04:40.640 --> 0:04:44.080 with some authority, I'm sure that the exemption will be, 0:04:44.279 --> 0:04:47.880 if not eliminated, at least scaled back for California. But 0:04:47.960 --> 0:04:50.520 that hasn't happened yet. And to allow at least the 0:04:50.560 --> 0:04:53.480 new officials to get into office, and to make a 0:04:53.760 --> 0:04:57.040 binding order. It was a sort of a cautious, respectful 0:04:57.080 --> 0:04:58.839 approach for the administration to take. 0:04:59.040 --> 0:05:02.360 The Trump administration also ask the Supreme Court to pause 0:05:02.720 --> 0:05:05.840 two other environmental cases. Tell us about them. 0:05:06.240 --> 0:05:09.520 Those cases concern in one case, whether there was a 0:05:09.560 --> 0:05:13.480 denial of an exemption for field companies to not comply 0:05:13.600 --> 0:05:17.480 with certain kinds of regulations for clean air. And in 0:05:17.640 --> 0:05:20.680 the other case, it has to do with the good 0:05:20.680 --> 0:05:23.760 neighbor policy that the EPA has established and a challenge 0:05:23.760 --> 0:05:26.560 to that. So in these cases it has to do 0:05:26.600 --> 0:05:30.120 with actually a venue where these cases can be heard. 0:05:30.760 --> 0:05:34.320 And the administration said, you know, look, as a technical matter, 0:05:34.480 --> 0:05:37.920 venue issue is alive. It hasn't been resolved. But if 0:05:37.920 --> 0:05:40.760 we are going to change our EPA policy so radically, 0:05:41.160 --> 0:05:44.720 then the underlying lawsuits may not have any kind of 0:05:45.160 --> 0:05:47.599 both left to them. So you may want to save 0:05:47.640 --> 0:05:51.000 your resources, Supreme Court and not hear the case. 0:05:51.320 --> 0:05:54.479 In three of the cases at the court, filing show 0:05:54.520 --> 0:05:58.680 that at least one party is objecting to halting the schedule. 0:05:59.360 --> 0:06:00.560 How does that lay in? 0:06:00.880 --> 0:06:03.880 Is the court likely to grant what the administration wants? 0:06:04.279 --> 0:06:06.000 I think the court is likely to, but in the 0:06:06.000 --> 0:06:09.000 past it hasn't always done that. There was someone infamous 0:06:09.040 --> 0:06:12.640 case at the start of the Biden administration dealing with 0:06:12.880 --> 0:06:17.680 again an EPA matter, where the Court said, yes, it's 0:06:18.040 --> 0:06:21.480 unlikely that there's a continuing, active controversy, but it may 0:06:21.520 --> 0:06:26.160 be resumed so it's not dead from an Article three contest, 0:06:26.200 --> 0:06:29.160 and so it actually hurt the case. So the Court 0:06:29.200 --> 0:06:33.240 has the capacity to hear these cases, despite what the 0:06:33.279 --> 0:06:37.640 Trump administration attorneys have requested. I think they're unlikely to 0:06:38.120 --> 0:06:42.760 because there is not such a need to clarify the 0:06:42.839 --> 0:06:46.039 underlying rules at this time or to even decide the 0:06:46.200 --> 0:06:48.800 venue issue that the Court is likely then to be 0:06:48.839 --> 0:06:53.320 respectful to the Trump position and get rid of these cases. 0:06:53.360 --> 0:06:54.000 They have the power to. 0:06:54.080 --> 0:06:55.640 So we'll have to wait to see, and if. 0:06:55.560 --> 0:06:58.960 The Supreme Court wants the case is to continue, the 0:06:59.240 --> 0:07:03.960 justices could point a lawyer to argue the Biden administration's position. 0:07:04.360 --> 0:07:04.520 Yeah. 0:07:04.600 --> 0:07:06.200 Look, the Court has done that in the past. You've 0:07:06.240 --> 0:07:10.920 appointed Niki Kuriei to really represent the interests of the 0:07:10.920 --> 0:07:14.760 former administration because the current administrations are no longer defending 0:07:14.760 --> 0:07:17.960 the policy, and the Court has done that for generations 0:07:18.040 --> 0:07:20.360 in a number of cases where they've done it more 0:07:20.440 --> 0:07:23.360 frequently in recent years, so it could happen. And so, 0:07:23.400 --> 0:07:27.040 for instance, give you an example, maybe this question of venue, 0:07:27.080 --> 0:07:29.320 about whether you can sue only in the DC circuit 0:07:29.720 --> 0:07:34.000 under a statute is complicating individuals' lives in terms of 0:07:34.040 --> 0:07:37.160 where to sue. It happened before, it may raise its 0:07:37.160 --> 0:07:39.160 head again in the future, and so the court says, look, 0:07:39.320 --> 0:07:41.720 we have a case, let's resolve it now. And that 0:07:41.760 --> 0:07:43.920 would be a good reason why the court might then 0:07:44.040 --> 0:07:48.000 appoint someone to represent the Biden administration position on the 0:07:48.080 --> 0:07:48.720 venue question. 0:07:49.600 --> 0:07:53.920 On Friday, the Justice Department actually reversed Biden administration position 0:07:54.000 --> 0:07:57.960 in one case over Louisiana's congressional map. 0:07:58.000 --> 0:07:59.720 But that won't have any effect on. 0:07:59.680 --> 0:08:03.120 The case itself, right, because it's not the Biden administration 0:08:03.200 --> 0:08:04.960 that's suing there. No. 0:08:05.040 --> 0:08:06.680 In that case, it really had to do with an 0:08:06.760 --> 0:08:12.320 unusual situation where the Republican Louisiana administration was in favor 0:08:12.480 --> 0:08:15.120 of the new map and yet it was challenged and 0:08:15.960 --> 0:08:19.160 held to be in violation of the Voting Rights Act. 0:08:19.160 --> 0:08:22.400 So it was a very unusual political alignment where the 0:08:22.440 --> 0:08:25.640 political leadership but Republicans, thought that this was a safer 0:08:25.720 --> 0:08:29.680 way to comply with the Voting Rights Amendment. But obviously 0:08:29.960 --> 0:08:31.120 we'll have to see what happens. 0:08:31.680 --> 0:08:35.920 These requests involve cases that haven't been argued yet. There 0:08:35.960 --> 0:08:39.800 are some argued cases that seem to shout out that 0:08:39.840 --> 0:08:43.760 the Trump administration would want to change positions, and one 0:08:43.800 --> 0:08:48.240 is the case over Tennessee's ban on gender affirming medical 0:08:48.240 --> 0:08:50.000 care for transgender miners. 0:08:50.559 --> 0:08:52.760 Yeah, the Scrimmtic case is the one that comes to 0:08:52.800 --> 0:08:56.040 everybody's mind, and whether the court decided to take the 0:08:56.080 --> 0:08:58.480 petition that was filed by the Biden administration as opposed 0:08:58.520 --> 0:09:01.200 to private parties is one for the ages. But it 0:09:01.240 --> 0:09:05.600 looks pretty clear that the Trump administration may well decide 0:09:05.679 --> 0:09:09.400 to go slow on the gender firming care and not 0:09:09.440 --> 0:09:12.160 have the Supreme Court hear the challenge right now. But 0:09:12.280 --> 0:09:14.520 on the other hand, maybe they think they have the 0:09:14.600 --> 0:09:17.720 votes and they've pledged it they only want to have 0:09:17.760 --> 0:09:20.079 two sexes on passports, and maybe they decided they don't 0:09:20.080 --> 0:09:23.120 want to have gender firming care and they may want 0:09:23.160 --> 0:09:25.600 the Court to continue to hear the case. But that's 0:09:25.600 --> 0:09:28.240 a great example of where a change of administration may 0:09:28.320 --> 0:09:31.320 or may not result in the Court jettis in the case. 0:09:31.600 --> 0:09:33.360 You know, if you go by the oral arguments, it 0:09:33.440 --> 0:09:37.400 seemed like Tennessee had the upper hand in the ural arguments. 0:09:37.920 --> 0:09:40.920 So maybe the Trump administration might want to just take 0:09:40.960 --> 0:09:42.040 a chance on that. 0:09:42.080 --> 0:09:42.480 They might. 0:09:42.640 --> 0:09:45.400 They might, and I think that they are in pretty 0:09:45.440 --> 0:09:48.560 good shape, not legally but with the Supreme Court, and 0:09:48.600 --> 0:09:51.440 so they may make a calculation that this is actually 0:09:51.720 --> 0:09:55.040 furthering their mission to try to get the court to 0:09:55.080 --> 0:09:57.760 come down and say that it's within the States rights 0:09:57.800 --> 0:09:59.199 to limit gender of firming. 0:09:59.240 --> 0:10:04.120 Care also arguments over these ghost guns, which are largely 0:10:04.400 --> 0:10:08.640 untraceable firearms, and that involves the federal regulation. 0:10:09.280 --> 0:10:11.000 It's been argued, but that might be. 0:10:10.960 --> 0:10:13.800 A case where the Trump administration changes position. 0:10:14.360 --> 0:10:15.920 I think that's going to be a close case because 0:10:15.960 --> 0:10:21.480 the Biden administration had such a overwhelming case on satutory 0:10:21.559 --> 0:10:25.760 construction that the regulation could be salvaged. And it's just 0:10:25.840 --> 0:10:28.920 not clear to me that even the Trump administration is 0:10:28.960 --> 0:10:31.720 in favor of ghost guns. But as you point out, 0:10:31.840 --> 0:10:35.880 it's within the purview of the new administration to resin 0:10:35.960 --> 0:10:38.840 the regulation. And so if they do resin the regulation, 0:10:39.360 --> 0:10:42.160 then people can manufacture and sell ghost guns in their 0:10:42.160 --> 0:10:46.240 basements without any kind of identification and pass by all 0:10:46.280 --> 0:10:50.200 sorts of regulatory hurdles. That's an extreme position, but it's 0:10:50.240 --> 0:10:52.200 one that the Trump administration might take. 0:10:52.440 --> 0:10:54.000 And Biden did this too. 0:10:54.200 --> 0:10:58.360 He asked the Justice Department to freeze the battle over 0:10:58.400 --> 0:10:59.920 the border wall. 0:11:00.080 --> 0:11:02.000 The Bide administration tried to get with respect to some 0:11:02.520 --> 0:11:05.920 environmental cases as well. And I think as respectful of 0:11:05.960 --> 0:11:08.520 the Court to tell the Court that this may no 0:11:08.600 --> 0:11:12.520 longer be a true controversy and that the Court is 0:11:12.520 --> 0:11:15.760 better off using its limited resources in another area. So 0:11:15.880 --> 0:11:19.600 I think both administrations active respectfully and by asking the 0:11:19.640 --> 0:11:22.080 Court to pause. And we'll just have to see what 0:11:22.120 --> 0:11:24.960 the positions the comp administration ultimately will take. 0:11:25.280 --> 0:11:30.240 Yes, especially when the new Solicitor General is appointed. Thanks 0:11:30.280 --> 0:11:33.040 so much, Hal. That's Professor Harold Krent of the Chicago 0:11:33.120 --> 0:11:35.960 Kent College of Law, coming up next on the Bloomberg 0:11:36.040 --> 0:11:40.360 Law Show. It's a tiny endangered fish that's become part 0:11:40.440 --> 0:11:44.199 of the culture wars. In fact, President Trump has even 0:11:44.240 --> 0:11:49.720 blamed it for California's wildfires, but Governor Gavin Newsom begs 0:11:49.760 --> 0:11:53.080 to differ. I'm June Grosso and you're listening to Bloomberg. 0:11:57.760 --> 0:12:02.000 This is Bloomberg Law with June Grosso from Bloomberg Radio. 0:12:03.040 --> 0:12:07.040 The Delta smelt is a three in silvery bluefish that 0:12:07.160 --> 0:12:12.040 has somehow become a scapegoat or perhaps escapefish for legal 0:12:12.120 --> 0:12:17.560 protections to save endangered species and even stranger. President Tromp 0:12:17.640 --> 0:12:22.720 blames the tiny fish for the devastating California wildfires, saying 0:12:22.800 --> 0:12:26.920 protections for the Delta smelt led to gaps in water access. 0:12:27.320 --> 0:12:29.720 They talk about the Delta smelt, which is a fish 0:12:29.760 --> 0:12:32.160 that's is big, but it is it is really not 0:12:32.600 --> 0:12:35.400 doesn't have to be protected because it's in other areas. 0:12:35.440 --> 0:12:38.600 It's in numerous other areas, so it doesn't have to 0:12:38.640 --> 0:12:42.359 be protected. The people of California have to be protected. 0:12:42.920 --> 0:12:46.920 Trump even signed an executive order on day one targeting 0:12:46.960 --> 0:12:52.680 the Delta smelt entitled Putting People over Fish Stopping Radical 0:12:52.800 --> 0:12:57.680 Environmentalism to provide water to southern California. But Governor Gavin 0:12:57.760 --> 0:13:01.480 Newsom says that Tromp has the fact all wrong and 0:13:01.520 --> 0:13:05.880 that state reservoirs in southern California are completely full. 0:13:06.120 --> 0:13:09.320 And somehow connecting the Delta smelt to this fire, which 0:13:09.400 --> 0:13:16.520 is inexcusable because it's inaccurate, also incomprehensible to anyone that 0:13:16.640 --> 0:13:18.319 understands water policy. 0:13:17.920 --> 0:13:18.320 In the state. 0:13:18.600 --> 0:13:22.400 Joining me is Caleb Scoville, a sociology professor at Tuff's 0:13:22.520 --> 0:13:26.360 University who's writing a book on the politics of the 0:13:26.400 --> 0:13:30.400 Delta smelt. So Caleb, tell us a little about this 0:13:30.600 --> 0:13:31.839 little fish. 0:13:32.160 --> 0:13:36.600 The Delta smelt is a small, translucent fish, you know, 0:13:36.640 --> 0:13:40.480 it's not two three inches long. It lives in the 0:13:40.520 --> 0:13:45.320 Sacramento San Joaquin Delta, which is where California's major river 0:13:45.440 --> 0:13:48.800 systems converge, just east of the San Francisco Bay where 0:13:48.840 --> 0:13:51.120 before the rivers kind of converge and flow out to 0:13:51.160 --> 0:13:54.280 the Bay. It's a fish that only lives in that area. 0:13:54.440 --> 0:13:58.480 It's California's largest estuary and it is also the center 0:13:58.559 --> 0:14:03.079 of California's water district system. So it's where giant pumps 0:14:03.120 --> 0:14:08.320 were installed in the mid twentieth century to irrigate farmland 0:14:08.400 --> 0:14:12.680 in the Central Valley California San Joaquin Valley, and also 0:14:12.840 --> 0:14:16.960 provides water to major cities in central and southern California, 0:14:17.040 --> 0:14:19.840 as well as the Silicon Valley. So the fish is small, 0:14:19.920 --> 0:14:21.720 but it's a native fish that used to be one 0:14:21.720 --> 0:14:25.560 of the most abundant species in that ecosystem, and it 0:14:25.600 --> 0:14:29.760 has declined in recent decades because of the human transformations 0:14:29.800 --> 0:14:30.640 of its ecosystem. 0:14:31.080 --> 0:14:33.680 When did it start to become controversial. 0:14:34.080 --> 0:14:37.680 That's a complicated question. You know, the species became considered 0:14:37.880 --> 0:14:40.960 for listing under the Endangered Species Act in the late 0:14:41.040 --> 0:14:44.080 nineteen eighties and early nineteen nineties, and at the time, 0:14:44.320 --> 0:14:49.600 you know, it was somewhat controversial because regulators and stakeholders, 0:14:49.800 --> 0:14:53.680 you know, agricultural interest cities, understood that it may complicate 0:14:53.840 --> 0:14:57.880 the operation of California's water infrastructure. So it was controversial 0:14:57.960 --> 0:15:00.680 even before it was listed under the Endangered Species Act. 0:15:00.800 --> 0:15:04.560 But this controversy was mostly within the world of California 0:15:04.640 --> 0:15:08.120 water policy. So in the early nineteen nineties, there were 0:15:08.280 --> 0:15:10.520 you know, concerns about what the effects of protecting this 0:15:10.560 --> 0:15:13.120 species would be. When it was listed under the Endangered 0:15:13.200 --> 0:15:16.600 Species Act, it continued to be controversial, but the listening 0:15:16.600 --> 0:15:20.400 of this species, and also conflict over water quality standards 0:15:20.440 --> 0:15:23.280 between the federal government and the state government resulted actually 0:15:23.320 --> 0:15:26.840 in a lot of cooperation to avoid future lawsuits, and 0:15:26.960 --> 0:15:29.440 so the controversy sort of died down a little bit, 0:15:29.600 --> 0:15:33.040 and it really wasn't until the mid two thousands, the 0:15:33.040 --> 0:15:36.360 mid aus and late aughts that the controversy picked up 0:15:36.400 --> 0:15:41.120 again and This was initially precipitated by a legal decision 0:15:41.560 --> 0:15:45.000 by a judge in California, actually a Republican appointed judge 0:15:45.120 --> 0:15:49.480 that the regulations protecting this species from those pumps that 0:15:49.600 --> 0:15:52.720 send water to farms and cities in California, the way 0:15:52.760 --> 0:15:54.720 that they were running the pumps was in violation of 0:15:54.760 --> 0:15:58.160 the Endangerous Species Act, and so this resulted in a 0:15:58.200 --> 0:16:01.080 brief but dramatics shut off of the pump, and then 0:16:01.120 --> 0:16:03.600 in order that new regulations had to be put in place. 0:16:03.600 --> 0:16:05.760 It was twenty seven two eight that this unfolded. 0:16:06.280 --> 0:16:10.680 Before that was anything in particular done when it was 0:16:10.720 --> 0:16:14.200 put on the endangered Species list to help preserve it. 0:16:14.640 --> 0:16:17.560 Yeah, so when a species is listed under the Endangered 0:16:17.600 --> 0:16:22.360 Species Act, so any federal agency that has a project 0:16:22.600 --> 0:16:26.200 that's going to affect the species and could potentially cause 0:16:26.360 --> 0:16:29.800 harm to the species has to come up with basically 0:16:30.080 --> 0:16:34.640 a plan to avoid jeopardizing and continued existence of that species. 0:16:34.680 --> 0:16:37.320 So there were regulations that essentially regulated the amount of 0:16:37.360 --> 0:16:40.320 water that could be pumped at particular times, and then 0:16:40.320 --> 0:16:43.280 there were a series of other measures, you know, including 0:16:43.760 --> 0:16:48.400 various ways of managing water that were tried to save 0:16:48.440 --> 0:16:52.080 the species from extinction. It's complicated. I mean, there were 0:16:52.120 --> 0:16:56.560 some habitat restoration projects. There was something called the environmental 0:16:56.560 --> 0:16:59.240 Water account, which is essentially like setting aside a certain 0:16:59.240 --> 0:17:01.720 amount of water could be used to pump into its 0:17:01.720 --> 0:17:04.240 habitat at certain periods of time. All of this is 0:17:04.280 --> 0:17:06.480 basically a way of managing water to try to balance 0:17:06.520 --> 0:17:10.760 the needs of ecosystems and the human interest in extracting 0:17:10.760 --> 0:17:12.800 water from its habitat. Now, I should mention that the 0:17:12.800 --> 0:17:16.520 ADULTA smelt is just one species among many that are 0:17:16.800 --> 0:17:20.520 affected by California's water distribution system. Salmon that are native 0:17:20.560 --> 0:17:22.960 to that area are also listed on the Endangered Species 0:17:22.960 --> 0:17:26.439 Act as our sturgeon, and there's a whole complex ecosystem. 0:17:26.600 --> 0:17:29.120 So the ADULTA smelt, it's one species, but it's also 0:17:29.320 --> 0:17:31.359 very sensitive species, so it's often treated as a kind 0:17:31.359 --> 0:17:34.720 of indicator species for the overall quality and help of 0:17:34.720 --> 0:17:38.080 the ecosystem. And these initial efforts, it was called the 0:17:38.160 --> 0:17:42.560 calf Ed program cl feed program were intended to sort 0:17:42.560 --> 0:17:45.480 of balance the needs of the environment and people's interest 0:17:45.560 --> 0:17:47.920 in water, and as also as a way to provide 0:17:47.960 --> 0:17:51.000 stability to avoid future lawsuits that might shut down the 0:17:51.040 --> 0:17:53.240 system because people were really interested in stability. 0:17:53.600 --> 0:17:56.920 When the judge issued this order, how did it change 0:17:57.040 --> 0:18:01.320 what California was doing with its water systems. 0:18:00.840 --> 0:18:04.439 Or did it did require the agencies to rewrite the 0:18:04.480 --> 0:18:09.280 way that they were regulating the pumps and managing water 0:18:09.560 --> 0:18:12.439 in dams. I don't think it's fair to say that 0:18:12.680 --> 0:18:16.719 it completely reorganized the way water was used in the States. 0:18:16.840 --> 0:18:20.560 It's a very complex regulatory process that involves using the 0:18:20.560 --> 0:18:23.560 best available science to come up with a plan to 0:18:23.880 --> 0:18:27.200 avoid jeopardizing the continued existence of this species. So there 0:18:27.200 --> 0:18:29.479 was an initial shutdown of water for just a very 0:18:29.480 --> 0:18:31.760 short amount of time days, and then there was a 0:18:31.800 --> 0:18:35.040 new regulatory regime that was put in place, and that 0:18:35.080 --> 0:18:37.600 was in place for many years. Overall, protections of the 0:18:37.600 --> 0:18:41.120 Delta Smeuth only account for a pretty small, pretty marginal 0:18:41.160 --> 0:18:44.200 amount of water that could have otherwise been used by people. 0:18:44.359 --> 0:18:46.800 But it was the dramatic shut off that actually created 0:18:46.840 --> 0:18:50.480 a lot of headlines. And so really the controversy even 0:18:50.560 --> 0:18:53.880 then was fairly muted, and what made it a national 0:18:53.880 --> 0:18:57.800 controversy was actually not anything regulatory at all or anything legal. 0:18:58.240 --> 0:19:01.119 It was when Sean Hannity had an entire episode of 0:19:01.200 --> 0:19:05.119 his show on the Delta Smelt sort of blaming drought 0:19:05.400 --> 0:19:09.639 and Great Recession era hardships on the protections of the 0:19:09.680 --> 0:19:12.280 Delta Smelt. So that was in two thousand and nine, actually, 0:19:12.440 --> 0:19:15.800 more than a year after the decision that resulted in 0:19:15.840 --> 0:19:18.320 the brief shut off of the pumps. So Hannity is 0:19:18.320 --> 0:19:21.400 actually the person who brought the Delta Smelt into the 0:19:21.520 --> 0:19:22.600 national public sphere. 0:19:23.000 --> 0:19:26.240 And why do you think this caught on as a controversy. 0:19:26.640 --> 0:19:29.760 First of all, was the contact Barack Obama had just 0:19:29.800 --> 0:19:32.480 become president of the United States. There was also a 0:19:32.520 --> 0:19:36.000 recession which was causing a lot of employment right after 0:19:36.040 --> 0:19:39.840 the financial crisis of two thousand and eight. California also 0:19:40.000 --> 0:19:42.600 at that time, and it continues to be with Trump 0:19:42.760 --> 0:19:45.919 just kind of an avatar for everything that is supposedly 0:19:45.960 --> 0:19:50.119 wrong with liberalism and environmentalism in the United States for 0:19:50.240 --> 0:19:55.280 a certain subset of conservative commentators. So those aspects sort 0:19:55.320 --> 0:19:58.800 of align. And then the Delta Smelt, being a very 0:19:58.920 --> 0:20:02.840 small and obscure species that is uncharismatic. You know, it's 0:20:02.840 --> 0:20:05.240 two inches long, it has a funny name, it became 0:20:05.280 --> 0:20:10.760 a vessel for the implicit message that liberal environmentalists in 0:20:11.040 --> 0:20:14.920 cities care more about a small uncharismatic species of fish 0:20:15.200 --> 0:20:17.399 than they care about hardworking. 0:20:16.880 --> 0:20:17.760 Honest people like you. 0:20:17.960 --> 0:20:20.719 So there's a kind of implicit message and sometimes very 0:20:20.760 --> 0:20:25.439 explicit message that environmentalists simply don't care about their fellow Americans. 0:20:25.640 --> 0:20:27.840 And you know that could also go for liberals, or 0:20:27.880 --> 0:20:30.280 could go for Obama, or could go for in this 0:20:30.400 --> 0:20:33.240 case Skeavin Newsom. And you know, because of the delta 0:20:33.280 --> 0:20:37.359 smell is a species that doesn't have obvious use to people. 0:20:37.600 --> 0:20:40.280 Isn't large or beautiful or charismatic. Right, It's not the 0:20:40.280 --> 0:20:42.840 bald eagle, it's not even the salmon. It becomes a 0:20:42.960 --> 0:20:46.240 very useful symbol for everything that's supposed to be wrong 0:20:46.280 --> 0:20:48.600 with environmentalism in America. 0:20:48.920 --> 0:20:52.080 You wrote that the frequent usage of descriptors like tiny 0:20:52.200 --> 0:20:55.679 or little suggests that the delta smelt small size and 0:20:55.760 --> 0:20:59.280 lack of charisma made it the perfect icon to drum 0:20:59.359 --> 0:21:03.080 up right wing resentment, allowing you to become a divisive 0:21:03.200 --> 0:21:07.080 cultural object. Yeah, I mean it's a culture war, is 0:21:07.200 --> 0:21:07.879 fish now? 0:21:08.640 --> 0:21:08.920 Yeah? 0:21:09.000 --> 0:21:12.320 Exactly. And so there's a very complex and interesting history 0:21:12.840 --> 0:21:16.159 of California water that the delta smelt plays a role in. 0:21:16.600 --> 0:21:19.520 And the delta smelt is regulated by the Amagive Species Act. 0:21:19.840 --> 0:21:23.720 It has accounted for some amount of water being set 0:21:23.760 --> 0:21:27.439 aside and not used by people over the years. That's true, However, 0:21:27.440 --> 0:21:31.399 this is a much smaller proportion than many critics would imagine. 0:21:31.480 --> 0:21:35.040 And also those regulations that protect the Delta smelt also 0:21:35.160 --> 0:21:37.320 protect the quality of the water for people to use. 0:21:37.400 --> 0:21:39.520 Because of the where the pumps are, There's only so 0:21:39.600 --> 0:21:42.520 much you can extract at a particular time, especially, you know, 0:21:42.560 --> 0:21:44.800 depending on hydrologic conditions, there's only so much you can 0:21:44.840 --> 0:21:49.080 extract without pulling in seawater right becoming too salty to 0:21:49.160 --> 0:21:51.040 even use to irrigate crops or drink. 0:21:51.200 --> 0:21:52.920 So the idea, you know, that you. 0:21:52.840 --> 0:21:55.120 Could just stop these regulations and take as much wonder 0:21:55.160 --> 0:21:57.399 as you want is not true at all. So the 0:21:57.720 --> 0:22:00.240 culture war thing, you know, in two thousand and nine, 0:22:00.400 --> 0:22:02.040 I see that as kind of the moment where the 0:22:02.080 --> 0:22:05.119 delta smelt escaped the world of California water politics. And 0:22:05.400 --> 0:22:08.480 I've done a systematic media analysis to show that there's 0:22:08.480 --> 0:22:12.000 no relationship between the hydrologic effects of protecting this species 0:22:12.160 --> 0:22:15.320 and when the controversy flares up. So really, the delta 0:22:15.320 --> 0:22:19.120 smelt as culture war symbol or culture war object has 0:22:19.240 --> 0:22:21.720 very little to do with the world of California water. 0:22:22.560 --> 0:22:28.919 President Trump has blame protections for this fish for the 0:22:29.200 --> 0:22:33.760 devastating Palisades fire, that the gaps in water access were 0:22:33.840 --> 0:22:36.040 due to this delta smelt. 0:22:36.280 --> 0:22:39.399 Yes, he has, and let's be clear, that's completely false. 0:22:39.480 --> 0:22:40.479 There's zero truth to it. 0:22:40.680 --> 0:22:40.880