WEBVTT - Biden to Rollback Trump on Environment 0:00:00.520 --> 0:00:05.720 You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio. 0:00:07.120 --> 0:00:10.920 A cry for survival of camp from planet itself, A 0:00:11.080 --> 0:00:14.400 cry that can't be any more desperate or any more clear. 0:00:14.560 --> 0:00:21.520 Now arise of political extremism, white supremacy, domestic terrorism that 0:00:21.720 --> 0:00:26.439 we must confront and we will defeat. President Joe Biden 0:00:26.560 --> 0:00:29.920 was clear about the importance of his environmental agenda in 0:00:30.000 --> 0:00:33.400 his inaugural speech, and then just hours later, he kick 0:00:33.479 --> 0:00:37.720 started his ambitious climate goals by rejoining the Paris Climate Accord, 0:00:38.120 --> 0:00:42.040 resending the construction permit for the Keystone Excel oil pipeline, 0:00:42.320 --> 0:00:46.760 and directing federal agencies to review the Trump administration's environmental 0:00:46.880 --> 0:00:50.400 rollbacks of the past four years. Joining me is environmental 0:00:50.479 --> 0:00:54.160 law professor Pat Parento of the Vermont Law School. Pat, 0:00:54.240 --> 0:00:58.320 let's talk about Biden's first steps. How important is rejoining 0:00:58.360 --> 0:01:02.480 the Paris Accord? And have we missed a lot of time? Yeah? 0:01:02.520 --> 0:01:04.919 We did miss some time, and we've lost some momentum. 0:01:05.120 --> 0:01:07.960 And some of the commitments that were made in Paris 0:01:08.040 --> 0:01:12.280 have really not been realized, and China has not followed 0:01:12.319 --> 0:01:16.840 through as aggressively as they had indicated. When Obama negotiated 0:01:16.880 --> 0:01:20.560 with Shigiping before Paris, so we've lost some momentum in 0:01:20.680 --> 0:01:23.399 some time, but nothing that we can't recapture if we 0:01:23.400 --> 0:01:26.479 can move fast enough. Biden now has to come up 0:01:26.560 --> 0:01:30.080 with what are called the nationally Determined Contributions, which is 0:01:30.080 --> 0:01:35.320 basically our commitment to reduction in greenhouse gases by so 0:01:35.440 --> 0:01:37.800 before the end of the year, because the next meeting 0:01:38.080 --> 0:01:41.399 of the cop parties to the convention is in Glasgow, 0:01:41.440 --> 0:01:44.440 Scotland in November. So you know, he's got carry, He's 0:01:44.480 --> 0:01:48.200 got Jeanne McCarthy, he's got a real strong team. In fact, 0:01:48.240 --> 0:01:51.279 I've never seen a stronger team focused on climate throughout 0:01:51.320 --> 0:01:55.000 his entire cabinet. So he's got the people, he's got 0:01:55.040 --> 0:01:57.480 the ideas. A lot of what he needs to do 0:01:57.600 --> 0:02:00.760 he can do through executive orders and through rulemaking, but 0:02:00.800 --> 0:02:03.280 of course rulemaking by E. P A and others will 0:02:03.320 --> 0:02:06.000 take time. But he's got to come up with this 0:02:06.120 --> 0:02:10.400 number for how we're going to reduce our carbon and 0:02:10.480 --> 0:02:13.760 other greenhouse gas footprints. And he's got to convince the 0:02:13.800 --> 0:02:16.080 other nations of the world that it's real that he 0:02:16.080 --> 0:02:19.080 can make it happen, either through his own authority or 0:02:19.320 --> 0:02:23.080 somehow working with Congress. Now that the Democrats at least 0:02:23.080 --> 0:02:27.200 have a slim really majority in both houses, there's some 0:02:27.280 --> 0:02:30.960 ability to get some stuff through Congress, including some investments 0:02:31.000 --> 0:02:34.880 that we desperately need and clean energy and transportation. So 0:02:34.960 --> 0:02:39.280 some kind of combination of executive actions and legislation he 0:02:39.320 --> 0:02:41.800 can work out with Congress is going to have to 0:02:41.840 --> 0:02:44.200 happen this year. Maybe not all of it in the 0:02:44.280 --> 0:02:48.000 first hundred days, but certainly within the first year. I 0:02:48.040 --> 0:02:51.639 think before the meeting in Glasgow, he's got to convince 0:02:51.720 --> 0:02:55.880 the world that he has the ability to follow through 0:02:56.360 --> 0:02:59.200 on his promises and make them happen. That's what we've 0:02:59.240 --> 0:03:03.120 got to see. The Trump administration pushed through all kinds 0:03:03.120 --> 0:03:07.160 of new rules environmental rollbacks in its final days, so 0:03:07.240 --> 0:03:11.040 much so that California Attorney General Javier Bassara sued the 0:03:11.040 --> 0:03:16.400 Trump administration nine times on Tuesday to combat those last 0:03:16.440 --> 0:03:20.520 minute environmental rollbacks. How difficult will it be for the 0:03:20.520 --> 0:03:25.400 Biden administration to roll back the rollbacks, Well, the last 0:03:25.440 --> 0:03:28.440 minute rollback that just have happened within the last literally 0:03:28.520 --> 0:03:31.720 few weeks. Biden can freeze. In fact, his chief of 0:03:31.760 --> 0:03:36.320 staff has already announced an executive order freezing all of 0:03:36.400 --> 0:03:40.920 those rollbacks for now, and then they'll be reevaluated by 0:03:40.960 --> 0:03:43.680 EPA or whatever other agencies you know. In the Department 0:03:43.720 --> 0:03:46.680 of Interior as a whole bunch of rules, they've got 0:03:46.720 --> 0:03:49.320 all those leases, you know, like the oil and gas 0:03:49.360 --> 0:03:53.480 leases in the Arctic Wildlife Refuge and other places. So 0:03:53.640 --> 0:03:57.120 there are a lot of sort of immediate things that 0:03:57.240 --> 0:04:01.040 Biden can put a hold on and then reconsider and 0:04:01.200 --> 0:04:05.080 dropped eventually, or change one or the other. The ones 0:04:05.120 --> 0:04:07.240 that are more difficult, obviously, are the rules that have 0:04:07.280 --> 0:04:10.520 already taken effect, like the power plant rules. The good 0:04:10.560 --> 0:04:14.800 news there is this amazing decision from the d C 0:04:14.800 --> 0:04:21.200 Circuit Court yesterday and eighty five page opinion trashing the 0:04:21.279 --> 0:04:25.719 Trump power plant rules, throwing them out completely, sending ETA 0:04:25.880 --> 0:04:29.839 back to square one, which gives the Biden administration a 0:04:30.000 --> 0:04:34.559 terrific opportunity to redesign what used to be the Clean 0:04:34.640 --> 0:04:38.320 power Plan. I think we're going to see something somewhat different, 0:04:38.360 --> 0:04:41.560 maybe a lot different from the Clean power Plant But 0:04:41.720 --> 0:04:45.240 this opinion that the d C Circuit handed down is 0:04:45.320 --> 0:04:48.440 kind of a blueprint for how to design a really 0:04:48.480 --> 0:04:52.280 strong greenhouse gas rule for power plants to replace the 0:04:52.360 --> 0:04:55.760 really bad rule that Trump came up with. So each 0:04:55.800 --> 0:04:59.080 one of these issues and rules and decisions, you know, 0:04:59.320 --> 0:05:02.160 is going to have a different process for how they 0:05:02.200 --> 0:05:05.599 have to be fixed, and how Trump's rolled back has 0:05:05.640 --> 0:05:09.000 to in itself be rolled back. So it's gonna take time, 0:05:09.560 --> 0:05:11.680 and it's going to have to be done carefully, but 0:05:11.760 --> 0:05:15.760 it can be done, and eventually, I do think we're 0:05:15.800 --> 0:05:20.120 probably gonna see a rollout of some of the strongest, 0:05:20.640 --> 0:05:23.359 well strongest in relation to what Trump tried to do 0:05:23.440 --> 0:05:27.520 anyway strongest set of rules, and not just for climate, 0:05:27.600 --> 0:05:31.640 but across the board. You know, Biden's talking about environmental 0:05:31.680 --> 0:05:35.320 justice issues all the time and sort of racial justice 0:05:35.360 --> 0:05:38.839 issues more broadly. So one of the things I expect 0:05:38.880 --> 0:05:43.560 to see is increasing protection for these communities of color 0:05:43.880 --> 0:05:48.479 that have been disproportionately affected by pollution for way too long. 0:05:49.120 --> 0:05:51.560 And he's not just going to focus on these really 0:05:51.640 --> 0:05:55.360 high profile rules that we've been talking about, but there's 0:05:55.400 --> 0:05:59.080 a lot of sort of conventional pollution, air pollution, and 0:05:59.120 --> 0:06:01.840 water pollution. You know, if you think about the flint 0:06:01.920 --> 0:06:06.600 situation with lead in people's drinking water, that's a pervasive 0:06:06.640 --> 0:06:10.479 problem around the country. So I anticipate that we're going 0:06:10.520 --> 0:06:15.120 to see a lot of activity in the environmental regulatory 0:06:15.200 --> 0:06:17.919 space over the next four years. Did he cancel the 0:06:18.000 --> 0:06:21.880 Keystone XL pipeline or he did he just stop it? Well, 0:06:22.080 --> 0:06:24.680 he canceled it in the sense that he rejected or 0:06:24.760 --> 0:06:30.400 revoked Trump's border crossing presidential permit, and without that they 0:06:30.440 --> 0:06:33.640 can't bring the oil in from Alberta. So in effect 0:06:33.640 --> 0:06:38.640 it's been canceled. And I just read that the company 0:06:39.160 --> 0:06:43.520 hasn't a trans Canada has announced that they're stopping construction, 0:06:44.040 --> 0:06:47.280 and of course that has the the unfortunate effect of 0:06:47.320 --> 0:06:50.679 putting some We have a lot of work, right, So 0:06:50.680 --> 0:06:52.880 so Biden has got some fence mending to do with 0:06:52.920 --> 0:06:56.120 the unions, but he has canceled the pipeline. It's dead. 0:06:57.000 --> 0:07:01.719 And also with Canada because it puts Minister Trudeau in 0:07:01.760 --> 0:07:06.200 a bad situation, and also Alberta. Canada said it's prepared 0:07:06.240 --> 0:07:11.000 to use every legal means to get compensation. Yeah, that's 0:07:11.040 --> 0:07:13.760 what used to be NAFTA. It's got a new name now. 0:07:13.760 --> 0:07:17.120 But that trade agreement with Canada and Mexico in the 0:07:17.240 --> 0:07:22.320 US does have some provisions in it that might give 0:07:22.360 --> 0:07:26.760 a claim to the companies and to Alberta, saying you've 0:07:26.800 --> 0:07:32.040 closed your market for our you know, oil, and that's 0:07:32.080 --> 0:07:35.240 the violation of the treaty of the compact. And so 0:07:35.320 --> 0:07:37.360 we'll see how that goes. Right that that's going to 0:07:37.440 --> 0:07:40.400 be an interesting question is to where that if it 0:07:40.440 --> 0:07:43.800 does get filed, where that gets litigated. We'll have to 0:07:43.800 --> 0:07:46.960 watch for that. Let's turn to the Supreme Court now, 0:07:47.640 --> 0:07:51.480 because this week the Justice has appeared open to the 0:07:51.520 --> 0:07:55.440 oil industry's arguments in a high stakes case that will 0:07:55.480 --> 0:07:58.840 set the course for climate litigation across the country. It's 0:07:58.840 --> 0:08:02.800 a procedural disput you that centers on a really technical question. 0:08:03.320 --> 0:08:06.720 Tell us about that question. Yeah, So the technical issue 0:08:07.240 --> 0:08:10.680 is when the cities and states that have sued the 0:08:10.680 --> 0:08:14.840 oil companies in state court. Um, when they do that, 0:08:15.280 --> 0:08:19.080 the oil companies then come in and remove those cases 0:08:19.080 --> 0:08:21.400 from state court to federal court. And then the cities 0:08:21.400 --> 0:08:23.480 and states go to federal court and say no, no, 0:08:24.040 --> 0:08:26.400 they belong in state courts. Send them back, which is 0:08:26.400 --> 0:08:31.200 called reman And now the question is when the federal 0:08:31.240 --> 0:08:36.320 courts reman these cases back the state court. Is the 0:08:36.440 --> 0:08:42.320 review of that decision to reman limited to a single 0:08:42.640 --> 0:08:48.240 ground for federal jurisdiction, which is called the federal officer doctrine. 0:08:48.240 --> 0:08:50.200 You don't really need to know too much about that. 0:08:51.080 --> 0:08:55.600 So why is it so important for environmentalists to be 0:08:55.760 --> 0:09:00.920 in state court rather than in federal court. The main 0:09:01.000 --> 0:09:03.840 reason is that the state courts are going to be 0:09:03.960 --> 0:09:07.480 more disposed to let the case go to trial, and 0:09:07.520 --> 0:09:12.120 of course in a state court proceeding the jury in 0:09:12.160 --> 0:09:14.640 these cases, because these are going to be jury cases. 0:09:14.640 --> 0:09:18.920 They're seeking large damages in the billions of dollars damages 0:09:18.960 --> 0:09:23.040 from climate change and for the costs of adaptation, building seawalls, 0:09:23.080 --> 0:09:28.760 and so forth. And in state courts, those juries, you know, 0:09:28.840 --> 0:09:30.839 are going to be drawn from a pool of people 0:09:30.840 --> 0:09:35.760 that are being affected by these these impacts, and and 0:09:36.080 --> 0:09:41.880 verdicts in state courts don't require unanimous decisions of the juries, 0:09:41.960 --> 0:09:45.720 whereas they do require unanimous decisions in federal courts. So 0:09:45.760 --> 0:09:49.319 that's one big difference. Another one is the oil companies 0:09:49.440 --> 0:09:53.199 think that federal courts are going to be more disposed 0:09:53.640 --> 0:09:56.400 to simply dismiss the case and not even let it 0:09:56.440 --> 0:10:01.520 get to trial. And they're they're they're thinking is federal 0:10:01.520 --> 0:10:05.480 courts are going to see these claims which are based 0:10:05.520 --> 0:10:09.640 on a global pollution problem like climate change as really 0:10:09.679 --> 0:10:13.800 not being something that the court should even entertain that 0:10:13.880 --> 0:10:15.800 they should be that that's the kind of problem that 0:10:15.880 --> 0:10:18.920 only Congress should deal with. And I don't know if 0:10:19.120 --> 0:10:21.600 all companies are right about that, by the way, but 0:10:21.679 --> 0:10:24.560 they think they think they have a better chance of 0:10:24.679 --> 0:10:28.280 convincing a federal judge to throw these cases out than 0:10:28.320 --> 0:10:32.200 they do convincing these individual state court judges around the 0:10:32.240 --> 0:10:35.600 country who are much closer to the communities that are 0:10:35.600 --> 0:10:40.280 being impacted. So explain just just briefly what the Fourth 0:10:40.320 --> 0:10:43.440 Circuit did. The Fourth Circuit said, you came to this 0:10:43.640 --> 0:10:48.280 court arguing that there was the involvement of the federal 0:10:48.320 --> 0:10:55.560 government directly in the activity that you were engaged in, 0:10:55.800 --> 0:10:59.160 not just the production of the oil and gas, but 0:10:59.280 --> 0:11:04.319 the marketing of it, the promotion of it. And it 0:11:04.360 --> 0:11:08.920 turns out, not surprisingly, there is no federal involvement in that. 0:11:08.920 --> 0:11:12.920 That's strictly something that the companies do and are in 0:11:13.040 --> 0:11:17.800 charge of. So when the Fourth Circuit looked at the 0:11:17.920 --> 0:11:21.640 question is there really the involvement of the federal government 0:11:22.559 --> 0:11:26.440 and concluded there wasn't, the Fourth Circuit sent the case 0:11:26.480 --> 0:11:29.000 back to the state court, and it didn't consider any 0:11:29.000 --> 0:11:33.000 other grounds for why the case should belong in in 0:11:33.000 --> 0:11:36.600 in federal court. And that's what the oil companies are 0:11:36.600 --> 0:11:40.400 now arguing to the Supreme Court was wrong. They're saying 0:11:40.400 --> 0:11:43.640 the Fourth Circuit should have led us make a bunch 0:11:43.679 --> 0:11:47.360 of other arguments for why the case belongs in federal court. 0:11:48.040 --> 0:11:51.640 And so that's what that's the narrowest question the Supreme 0:11:51.679 --> 0:11:54.360 Court has to decide. Are they going to let the 0:11:54.440 --> 0:11:58.120 oil companies make more arguments for why the cases belong 0:11:58.200 --> 0:12:01.480 in federal court or not? That's that's all. That's that 0:12:01.679 --> 0:12:05.200 issue um in the Baltimore case. It doesn't get to 0:12:06.080 --> 0:12:10.880 the real question is their liability, uh, for what the 0:12:10.960 --> 0:12:14.760 oil companies have done. The Supreme Court argument, it was 0:12:14.760 --> 0:12:18.000 pretty clear that none of the justices we're interested in 0:12:18.000 --> 0:12:21.120 that in trying to reach the ultimate merits of the 0:12:21.200 --> 0:12:25.520 cases or even in issuing a sweeping decision that all 0:12:25.559 --> 0:12:27.839 of the cases belong in federal court. There was no 0:12:28.440 --> 0:12:30.880 no support for that argument from the oil companies that 0:12:30.920 --> 0:12:34.480 I could hear. So what did you hear of? What 0:12:34.520 --> 0:12:36.800 did you hear from the justices as to where they 0:12:36.840 --> 0:12:41.040 stand on this? I do think it probably looked there's 0:12:41.040 --> 0:12:44.760 only eight justices because Alito has recused himself because he 0:12:44.800 --> 0:12:49.160 owns a bunch of conical oil stock. But I do 0:12:49.320 --> 0:12:53.000 think there's probably a majority to agree that the Fourth 0:12:53.040 --> 0:12:56.079 Circuit should have allowed the oil companies to make these 0:12:56.120 --> 0:12:59.600 other arguments. If that's true, then they'll send the case 0:12:59.679 --> 0:13:03.640 back to the Fourth Circuit to let the oil companies 0:13:03.679 --> 0:13:07.280 make these other arguments. It will delay the progress of 0:13:07.320 --> 0:13:09.680 these cases for sure. They won't be able to move 0:13:09.760 --> 0:13:13.200 forward in federal court until this is resolved, but it 0:13:13.280 --> 0:13:16.920 won't end them. It won't be a ruling on the merits. 0:13:17.679 --> 0:13:20.880 It'll it'll be a delay. It will be costly. It'll 0:13:20.880 --> 0:13:23.640 be costly for both, by the way, the oil companies 0:13:24.160 --> 0:13:26.600 and the cities and states. Maybe the oil companies have 0:13:26.679 --> 0:13:29.760 more money, you know, to spend on this litigation than anybody. 0:13:29.800 --> 0:13:32.200 I don't know. But it will be costly and it 0:13:32.240 --> 0:13:34.920 will take time. But it's not going to be the 0:13:35.000 --> 0:13:38.760 end of the cases. For the textuals on the court. 0:13:39.360 --> 0:13:42.880 For example, Kavanaugh, is it all about the meaning of 0:13:42.920 --> 0:13:47.440 the word order? Yeah, that's what he That's what the 0:13:48.280 --> 0:13:51.840 at least Kavanaugh Gorcich. You never can tell. With Thomas 0:13:52.600 --> 0:13:55.560 and maybe Roberts. Roberts is still I think in play 0:13:55.679 --> 0:13:58.520 from what I could tell. He asked vic Cher, who 0:13:58.559 --> 0:14:01.040 was arguing for the City of ball some more. He said, 0:14:01.080 --> 0:14:02.960 I'm going to give you three minutes to convince me 0:14:03.040 --> 0:14:07.800 you're right. So that that says, yeah, that says uninterrupted, 0:14:07.800 --> 0:14:13.040 he said, So that says that he's uncertain, which is, 0:14:13.080 --> 0:14:15.280 you know, an opportunity to convince him. So we'll have 0:14:15.360 --> 0:14:19.240 to see. But yeah, I think it's an interesting issue 0:14:19.280 --> 0:14:23.240 on the textualists point, because both sides are arguing the 0:14:23.280 --> 0:14:26.800 same thing, but both sides are arguing the text is clear. Um, 0:14:27.120 --> 0:14:29.960 you know, the city's the City of Baltimore is saying, 0:14:30.000 --> 0:14:34.040 it's clear that the only basis for review is this 0:14:34.120 --> 0:14:37.600 federal officer question, and it's clear that Congress wanted to 0:14:37.720 --> 0:14:41.680 limit the review of federal courts to just that basis 0:14:41.720 --> 0:14:45.480 and not everything that the defendants could think of. Whereas 0:14:45.840 --> 0:14:49.720 Kavanaugh and Gorsets in particular said, well, this word order. 0:14:50.320 --> 0:14:52.920 You know, once there's an order issue to remand the 0:14:52.960 --> 0:14:55.680 case the state court, then you should be able to 0:14:55.760 --> 0:14:59.680 argue any reason why that order is flawed, whether or 0:14:59.760 --> 0:15:03.600 not it involves this this crazy federal officer question or not. 0:15:04.120 --> 0:15:07.320 You should be able to argue in one court, the court, 0:15:07.400 --> 0:15:10.520 you know, the Court of Appeals, Um, all the reasons 0:15:10.520 --> 0:15:12.840 why sending it back to the state court is wrong. 0:15:13.280 --> 0:15:15.880 So that's where that's where the case turns. Are you 0:15:15.960 --> 0:15:18.520 just going to look at the issuance of the order 0:15:18.560 --> 0:15:21.520 and why it's wrong, or are you going to look 0:15:21.560 --> 0:15:24.920 at the text of the provision in question and congress 0:15:25.000 --> 0:15:29.200 is intent, which seems to be to limit the basis 0:15:29.240 --> 0:15:32.760 for federal removal to this federal officer question. And what 0:15:32.880 --> 0:15:36.160 was the opposition to that from the liberal justices or 0:15:36.320 --> 0:15:39.760 was there there wasn't too much the justice so to 0:15:39.840 --> 0:15:43.880 Mayor said, what about the fact that Congress in two 0:15:43.920 --> 0:15:47.760 thousand and eleven UM, when it looked at this very 0:15:47.800 --> 0:15:53.560 statutory provision, decided not to change it. And the backdrop 0:15:53.640 --> 0:15:56.320 to that, as everybody was arguing, was a whole bunch 0:15:56.360 --> 0:16:00.360 of circuit court decisions that were consistent with what City 0:16:00.360 --> 0:16:04.000 of Baltimore is now arguing again that review is limited 0:16:04.040 --> 0:16:07.200 to this single question a federal officer and you can't 0:16:07.240 --> 0:16:10.600 bootstrap a whole bunch of other arguments into that. So 0:16:10.880 --> 0:16:15.320 both Soda Mayor and Kagan, we're you know, asking what 0:16:15.400 --> 0:16:19.200 I call softball question um to vic share that you know, 0:16:19.200 --> 0:16:22.800 the Council for the city, um, and they just let 0:16:22.880 --> 0:16:26.440 Vic you know, roll out his whole argument and after 0:16:26.480 --> 0:16:29.600 that they said thank you. So they were trying to give, 0:16:30.040 --> 0:16:35.479 you know, the Council for Baltimore every opportunity to explain 0:16:35.760 --> 0:16:40.400 why they're reading of the statute was consistent with congress 0:16:40.520 --> 0:16:42.920 Is intent. That's the way I read it. Thanks for 0:16:42.960 --> 0:16:46.040 being on the Bloomberg Laws Show. Pat. That's Pat Parento, 0:16:46.240 --> 0:16:49.360 a professor of environmental law at the Vermont Law School. 0:16:51.520 --> 0:16:55.000 A fine dating back two decades finally reached the Supreme 0:16:55.040 --> 0:16:58.680 Court this week. Should the Federal Communications Commission be allowed 0:16:58.720 --> 0:17:02.200 to relax the limits the ownership of local broadcast stations 0:17:02.200 --> 0:17:04.960 and newspapers, even though it could lead to a wave 0:17:05.040 --> 0:17:08.639 of consolidation. Justice Neil Gorse had said that the rules 0:17:08.640 --> 0:17:12.080 are outdated. We're stuck with rules from the nineties, seventies 0:17:12.520 --> 0:17:15.680 that twenty years ago, twenty five years ago. Kyra said, 0:17:15.680 --> 0:17:20.320 we're outdated, and when when is the FCC gonna be 0:17:20.359 --> 0:17:23.760 able to try and experiment? But the Third Circuit Court 0:17:23.760 --> 0:17:27.199 of Appeals had blocked the changes and ordered the FCC 0:17:27.440 --> 0:17:30.359 to study the impact easing the rules could have on 0:17:30.520 --> 0:17:34.320 female and minority ownership in the media industry. One problem 0:17:34.359 --> 0:17:36.520 seemed to be the lack of evidence of what might 0:17:36.600 --> 0:17:41.400 happen something Justice Stephen Bryer found frustrating. Why in Heaven's 0:17:41.480 --> 0:17:45.639 name did you not are groups that support you? Given 0:17:45.680 --> 0:17:49.040 the tremendous number of people who I'm happy are interested 0:17:49.080 --> 0:17:51.800 in this, Why aren't there some studies or something? There 0:17:51.840 --> 0:17:55.640 are ten thousands law professors and economics professors suit look 0:17:55.720 --> 0:17:58.760 for studies to do. Why isn't there something joining me? 0:17:58.800 --> 0:18:02.640 Is match Schettenhelm netigation and government analysts for Bloomberg Intelligence. 0:18:02.880 --> 0:18:05.520 Matt tell us about these rules that the FCC wants 0:18:05.560 --> 0:18:09.479 to relax. So this case involves rules that in some 0:18:09.520 --> 0:18:13.080 cases have been around since the nineties seventies that limit 0:18:13.320 --> 0:18:18.119 how many stations both TV and radio stations that a 0:18:18.200 --> 0:18:22.400 broadcast company can own in a local market, so for example, 0:18:22.440 --> 0:18:26.280 the New York market or the Chicago market. And for 0:18:26.520 --> 0:18:32.200 years broadcasters have been pushing the SCC to loosen those 0:18:32.320 --> 0:18:36.520 rules to make the situation more competitive with media like 0:18:36.600 --> 0:18:39.159 the Internet. And so this case is really about the 0:18:39.320 --> 0:18:44.280 FEC's repeated efforts to ease up those rules and let 0:18:44.480 --> 0:18:48.040 stations own more stations in a local market and also 0:18:48.240 --> 0:18:52.400 own multiple forms of media. The SEC rules have long 0:18:52.520 --> 0:18:57.240 restricted the ownership of both newspapers and broadcast stations, as 0:18:57.240 --> 0:19:00.320 well as the ownership of radio and TV stay stations 0:19:00.359 --> 0:19:04.240 by the same company. Now, the same three judge panel 0:19:04.240 --> 0:19:07.399 of the Third Circuit Court of Appeals has been preventing 0:19:07.520 --> 0:19:11.639 the FCC from loosening its ownership restrictions for something like 0:19:11.680 --> 0:19:15.879 twenty years. Why yeah, That's the remarkable thing about this 0:19:15.960 --> 0:19:19.240 case is that the same three judge panel has hung 0:19:19.280 --> 0:19:23.159 onto the case for, as you said, over seventeen years, 0:19:23.160 --> 0:19:25.760 and it's really been two judges of those three, and 0:19:25.800 --> 0:19:28.760 there's always been one of the three dissenting. And the 0:19:28.800 --> 0:19:32.400 main reason has been that these two judges have said 0:19:32.400 --> 0:19:37.440 that the FCC hasn't done enough to look at how 0:19:37.560 --> 0:19:42.359 relaxing its rules would impact diversity of ownership. The FCC 0:19:42.520 --> 0:19:45.960 has long said that one factor it takes into consideration 0:19:46.160 --> 0:19:50.840 is how broadcast stations would be owned by emails and minorities, 0:19:51.119 --> 0:19:54.920 and latching onto that, these two judges have said, since 0:19:55.000 --> 0:19:59.280 you consider that important, FEC, why aren't you doing more 0:19:59.600 --> 0:20:02.600 to sure that there is ownership? And these two judges 0:20:02.600 --> 0:20:05.280 have effectively said you're not doing enough and until you 0:20:05.400 --> 0:20:08.480 do more to ensure that sort of ownership, we're not 0:20:08.560 --> 0:20:12.240 going to let you lack the rules. So what's the 0:20:12.280 --> 0:20:16.800 FECs argument the Supreme Court. The basic argument is that 0:20:16.840 --> 0:20:21.440 these two judges have sort of gone beyond their jurisdiction, 0:20:21.560 --> 0:20:25.720 that this is ultimately a policy call, not for judges 0:20:25.880 --> 0:20:30.600 but for administrative agencies. And the Federal Communications Commission is 0:20:30.640 --> 0:20:33.680 passed with balancing a number of factors. One of those 0:20:33.720 --> 0:20:37.119 factors is diversity of ownership, which these two judges have 0:20:37.200 --> 0:20:40.560 focused on, but the FEC says there's a number of 0:20:40.560 --> 0:20:43.480 other things that it also has to consider, and most 0:20:43.520 --> 0:20:47.679 importantly for this SEC is considerations of competition and the 0:20:47.800 --> 0:20:52.560 idea that maybe it's best to facilitate broadcasting as an 0:20:52.600 --> 0:20:57.159 industry to ease up on these limits. And so the 0:20:57.240 --> 0:21:00.760 FEC looked at diversity of ownership, but it's balance that 0:21:01.320 --> 0:21:03.960 against the number of other factors, and it says, ultimately, 0:21:04.119 --> 0:21:06.879 we as an agency should get to make this call, 0:21:07.520 --> 0:21:10.720 not two unelected judges from the Third Circuit. And that's 0:21:10.800 --> 0:21:14.119 the case that the SEC pushed pretty aggressively to the 0:21:14.160 --> 0:21:17.119 Supreme Court, who is on the other side of this case. 0:21:17.680 --> 0:21:21.159 So the cases is being brought by public interest groups 0:21:21.200 --> 0:21:25.479 that that really have have long emphasized the importance of 0:21:25.640 --> 0:21:29.920 diversity of ownership, and so they have had great success 0:21:29.960 --> 0:21:33.600 in pushing their case at the Third Circuit and they 0:21:33.600 --> 0:21:37.639 continue to present that fight to the court. Tell me, 0:21:37.720 --> 0:21:41.240 when you look at media ownership, but is it true 0:21:41.280 --> 0:21:47.000 that there isn't enough minority or female owned stations. So 0:21:47.119 --> 0:21:49.240 that's a great question, and that's one of the things 0:21:49.280 --> 0:21:52.200 that when the FEC did it's rulemaking on whether it 0:21:52.200 --> 0:21:56.520 should relax its rules, it asked for data on exactly 0:21:56.560 --> 0:21:59.639 that question, and it said, tell us what is the 0:22:00.000 --> 0:22:03.760 act and what is the status of ownership of these stations. 0:22:03.800 --> 0:22:07.320 And the SEC's response after it it went through all 0:22:07.359 --> 0:22:10.760 that data, we don't have great answers in terms of 0:22:11.000 --> 0:22:13.960 it got very little in the record in terms of 0:22:14.000 --> 0:22:17.280 the impact of reducing its rules. Arts. I think these 0:22:17.280 --> 0:22:19.760 public interest groups have made the case, and I think 0:22:19.800 --> 0:22:23.720 it can be documented that there is very limited ownerships 0:22:23.960 --> 0:22:28.960 by females and by minority owners of broadcast stations. But 0:22:29.119 --> 0:22:32.400 the real question in the case has been does easing 0:22:32.480 --> 0:22:35.520 the rules have any impact on that? And that's where 0:22:35.520 --> 0:22:37.800 the SEC after waiting through all the data, so we 0:22:37.840 --> 0:22:41.760 can't say conclusively that relaxing the rules is going to 0:22:41.840 --> 0:22:45.520 make this situation worse, and we think it will actually 0:22:45.720 --> 0:22:48.919 have the potential to make it better by improving the 0:22:49.080 --> 0:22:54.200 market position for broadcasters. Generally, during the oral arguments, did 0:22:54.200 --> 0:22:57.359 you get a feel for what the justices seemed most 0:22:57.480 --> 0:23:01.560 concerned about, what issue was foremost in their minds, so 0:23:01.720 --> 0:23:04.000 coming into this case, you know, with the Supreme Court 0:23:04.119 --> 0:23:07.800 choosing to accept the case at all, that was a 0:23:07.920 --> 0:23:12.640 very good sign, I think for the FEC and for broadcasters, 0:23:12.720 --> 0:23:16.359 because if the Court was satisfied with what the Third 0:23:16.359 --> 0:23:18.720 Circuit has done, it could have just let this case 0:23:18.880 --> 0:23:21.720 fit and not take it all. The mere act of 0:23:21.800 --> 0:23:25.320 taking the case suggest there's concerns, and I think the 0:23:25.440 --> 0:23:29.280 argument supported that we have a six to three Supreme 0:23:29.359 --> 0:23:32.320 Court in terms of the nominating party of the president, 0:23:32.400 --> 0:23:35.760 and it's a more business friendly court here. I think 0:23:35.800 --> 0:23:39.480 what we saw from the argument was exactly what we expected. 0:23:39.960 --> 0:23:43.480 There was, generally, I think a focus on maybe this 0:23:43.640 --> 0:23:47.000 Third Circuit Court has gone too far to be sure. 0:23:47.040 --> 0:23:50.960 There was some sympathy from Justices Soto, Mayor and Tagan 0:23:51.240 --> 0:23:55.119 with the public interest group position here, but it's very 0:23:55.160 --> 0:23:59.600 difficult to see that position earning five votes on Mr 0:23:59.680 --> 0:24:02.520 Frames Court, and I saw very little from the conservative 0:24:02.600 --> 0:24:05.760 side of the Suspreme Court in terms of their questions 0:24:05.920 --> 0:24:09.320 to suggest that there will be five votes to support 0:24:09.400 --> 0:24:13.240 the Third Circuit here. So, and in fact, it seems 0:24:13.240 --> 0:24:16.840 as if Justice Neil Gorstch was pretty direct in saying 0:24:16.880 --> 0:24:19.159 that the rules are old. He said, we're stuck with 0:24:19.280 --> 0:24:22.800 rules from the nineties seventies that twenty years ago, twenty 0:24:22.800 --> 0:24:26.320 five years ago, Congress said we're outdated. He seems pretty 0:24:26.400 --> 0:24:30.520 vehement about the point exactly. And I think that position 0:24:30.800 --> 0:24:33.800 is going to carry a lot of weight with the 0:24:33.880 --> 0:24:37.920 conservative side of the Court, that it's a very uphill 0:24:38.359 --> 0:24:42.080 argument for the public interests group to prevail. I do 0:24:42.240 --> 0:24:45.840 think there's a possibility of a dissenting opinion from Justice 0:24:45.840 --> 0:24:50.080 So to my or potential Justice Kagan joining her, maybe 0:24:50.119 --> 0:24:53.480 Justice Briar, But when you look at the other six 0:24:53.600 --> 0:24:56.760 justices on the Court, it's difficult to envision any of 0:24:56.800 --> 0:25:01.399 them jumping on board with that position. So it's not impossible. 0:25:01.480 --> 0:25:05.120 In the oral argument doesn't assure anything about the outcome, 0:25:05.200 --> 0:25:08.720 and sometimes we're surprised, but right now, in terms of likelihood, 0:25:08.880 --> 0:25:12.000