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Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio

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Speaker 1: put a landmark decision by a Dutch court be the

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Speaker 1: start of a new war against big oil. A Dutch

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Speaker 1: court rule that Royal Dutch Shell had to cut its

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Speaker 1: emissions on the grounds that the oil giant is violating

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Speaker 1: human rights by contributing to global warming. Joining me is

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Speaker 1: environmental law professor Pat Parento of the Vermont Law School.

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Speaker 1: Pat tell us about this landmark decision. It's the first

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Speaker 1: time in history, in fact, that a court has ordered

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Speaker 1: a private corporation to not only comply with reducing their

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Speaker 1: emissions of carbon dioxide, but to a level that's literally

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Speaker 1: going to require Shell to reconsider its its entire business plan.

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Speaker 1: They're not going to be able to realize the exploitation

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Speaker 1: of all of the oil and gas reserves that they

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Speaker 1: have on their books. That's what this decision means. It

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Speaker 1: means changing your whole modus ARANDAI, and that's really stunning. Now,

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Speaker 1: it is a lower court decision in the Netherlands, it's

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Speaker 1: the Hague District Court, so it will have to go

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Speaker 1: to the Dutch Supreme Court the way the earlier for

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Speaker 1: Agenda case did. But it's it's quite startling in its

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Speaker 1: potential impact. Can Shell accomplish what the courts set out

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Speaker 1: if it loses the appeal? Very uncertain unclear as to

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Speaker 1: how Shell would do this, because the most striking thing

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Speaker 1: about this decision is that it includes emissions from Shell's customers,

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Speaker 1: You and I, people who pump their gas and drive

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Speaker 1: you know, gas pard vehicles all over the world. Um

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Speaker 1: So Shell has to somehow figure out how two offset

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Speaker 1: all of those emissions. They're called Scope three emissions in

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Speaker 1: the in the jargon um and nobody's ever done that. No,

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Speaker 1: no corporation. Amazon has ledged to do something like that

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Speaker 1: for the emissions from its supply chain, but but nobody

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Speaker 1: has actually done it. So it's very unclear as to

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Speaker 1: how Show would actually accomplished this reduction in its emissions

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Speaker 1: by m measured against two thousand nineteen levels. And the

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Speaker 1: allegation was a human rights violation, it was a mixed yes,

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Speaker 1: it was account similar to the Agenda case, which was

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Speaker 1: the decision of the Dead Supreme Court ordering the Dutch

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Speaker 1: government to reduce emissions UM this year last, which the

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Speaker 1: Dutch government did actually um so, so this one um

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Speaker 1: is based on the same kind of European Convention for

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Speaker 1: the Protection of Human Rights that the Dead Supreme Court

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Speaker 1: used in the Agenda case. It all so is looking

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Speaker 1: at all kinds of international agreements under the Paris Framework

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Speaker 1: UM and common law UM, sort of a sense of

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Speaker 1: you know, what's the duty of a corporation in light

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Speaker 1: of this overwhelming impact and challenge of climate change. It's imposing,

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Speaker 1: said this court, an extra duty of care on the

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Speaker 1: part of not just the government, but on the part

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Speaker 1: of corporations that are, of course, you know, integral to

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Speaker 1: both the problem itself and two solutions to the problem.

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Speaker 1: So again, you know, just unprecedented UM and and unclear

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Speaker 1: exactly how this is all going to unfold. So this

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Speaker 1: is based on Dutch law. Is there any chance that

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Speaker 1: other courts in Europe will see this the same way? Well,

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Speaker 1: that's an open question. Some of the Dutch scholars that

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Speaker 1: I've been reading say that um, it could have a

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Speaker 1: bearing on how other European courts look at these questions.

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Speaker 1: Another case that bears watching in this frame is the

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Speaker 1: case from Portugal. The six young people in Portugal who

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Speaker 1: have persuaded the European Court of Human Rights to consider

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Speaker 1: their charge that I think six of the member states

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Speaker 1: of the European Union, most prominently Poland UM, are guilty

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Speaker 1: of exacerbating the climate problem, threatening the well being of

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Speaker 1: these young people and and you know, sort of bankrupting

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Speaker 1: their future kind of argument. And that case is being

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Speaker 1: brief now and will be argued sometime in the next

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Speaker 1: few months. So a lot of people are looking at

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Speaker 1: that court in that decisions as yet another benchmark, if

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Speaker 1: you will, on climate law and its development. So there's

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Speaker 1: a lot happening. The German Constitutional Court also recognized the

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Speaker 1: rights of future generations are being threatened by climate change

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Speaker 1: and have imposed some additional requirements on the federal government

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Speaker 1: in Germany UH to to come up with plans to

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Speaker 1: address that. We saw in Australia. Another court in Australia

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Speaker 1: has recognized once again climate change threatening future generations in

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Speaker 1: the context of approving coal mines. Of course, Australia is

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Speaker 1: still producing an enormous amount of coal that it sends

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Speaker 1: to China and India and other places. So yeah, I

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Speaker 1: mean it's hard to keep tracks. There are so many

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Speaker 1: cases now moving through different courts around the world. But

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Speaker 1: in the United States these cases, for example, there is

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Speaker 1: the kid's climate lawsuit that's be installed. These cases aren't

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Speaker 1: moving in the United States, are they not? Really? The

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Speaker 1: Juliana case, which was the original youth plaintiff case, the

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Speaker 1: plaintiffs in that case have gone back to the Federal

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Speaker 1: District Court in Oregon and asked Judge Akin to reopen

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Speaker 1: the case. It was dismissed by the Ninth Circuit. But

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Speaker 1: the planets are trying to get Judge Akin to allow

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Speaker 1: them to amend their complaints and narrow the scope of

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Speaker 1: remedies so that, you know, something that courts can actually do.

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Speaker 1: And Judge Akin has ordered the party's into mediation. That

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Speaker 1: means the Justice Department and Our Children's Trust, which represents

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Speaker 1: these plantiffs in the mediation. So you know, that's another

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Speaker 1: piece of the puzzle. But generally, climate litigation is not

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Speaker 1: going forward in any significant way in the United States.

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Speaker 1: There's a lot of cases that are challenging individual fossil

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Speaker 1: fuel projects, coal mines, oil and gas releases, pipeline you know,

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Speaker 1: we're seeing that all the time. But but we're not

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Speaker 1: seeing any of the kinds of cases that the Shell

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Speaker 1: decision indicates, or this German Constitutional Court decision I mentioned

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Speaker 1: indicate we're not seeing anything on that level. In the

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Speaker 1: United States. There was an instance of a first time

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Speaker 1: activist shareholder with a tiny steak in Exon scoring a

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Speaker 1: historic win with getting two seats on the board. So

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Speaker 1: is it more from within that we're going to see

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Speaker 1: change than from the courts? Yeah? That was that was

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Speaker 1: remarkable because you know, usually corporations at their annual meeting

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Speaker 1: are able to squash these shareholder petitions. But in this case,

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Speaker 1: these these shareholder activists, You're right, we're able to get

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Speaker 1: two seats um on the board. Now that doesn't mean

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Speaker 1: they're going to change Xon, but it's certainly is an

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Speaker 1: inroad into what has been a closed shop or a

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Speaker 1: closed board for the activists. And you're also seeing more

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Speaker 1: and more in the financial sector increasing concerns and comments

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Speaker 1: about the financial risks of all this investment in fossil fuels.

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Speaker 1: We saw that with black Rock, you know, the largest

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Speaker 1: brokerage firm that has over what seven trillion dollars in

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Speaker 1: its portfolio, that the head of black Rock saying they're

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Speaker 1: gonna they're they're shifting their focus to sustainability and investments

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Speaker 1: in you know, newer, cleaner technologies and so forth. So

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Speaker 1: an awful lot happening on the climate front. So I

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Speaker 1: want to turn to the Biden administration because environmentalists had

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Speaker 1: expected a complete reversal of Trump era legal positions, but

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Speaker 1: they've been disappointed in the first months of the Biden administration.

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Speaker 1: Politics in truths, Reality and truths. Yeah, Biden is facing

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Speaker 1: tensions from both sides. On the left, sort of progressives

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Speaker 1: in the climate activists. You know, they want an end

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Speaker 1: to oil and gas development right now. They want to

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Speaker 1: stop all the pipelines. They want to stop oil and

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Speaker 1: gas development everywhere. And Biden during the campaign made some

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Speaker 1: promises which he's finding hard to keep. You know, He's

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Speaker 1: shut down the Keystone pipeline and that true, I don't know,

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Speaker 1: several hundred or thousands of workers out of work, and

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Speaker 1: so he took a shot from the unions on that.

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Speaker 1: And now most recently, the Justice Department has gone into

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Speaker 1: this case in Alaska in the Arctic Petroleum Reserve and

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Speaker 1: defended the decision of the Trump administration to open up

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Speaker 1: the Arctic. The scuttle butt on that is that Biden

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Speaker 1: feels like he owes Lisa Murkowski, you know, one of

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Speaker 1: the few Republicans who ever agrees with anything that the

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Speaker 1: Democrats in the Senate want to do and what Biden

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Speaker 1: would like to do with his infrastructure bill and all

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Speaker 1: these big investments. So apparently, you know, he's having to

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Speaker 1: cut these deals and balance the left and the right

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Speaker 1: and the way he's executing his climate policy. I will say, overall,

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Speaker 1: Biden is moving in the right direction. He's not moving

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Speaker 1: as aggressively as we'd hoped, but he is moving in

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Speaker 1: the right direction, and he's making climate a centerpiece of

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Speaker 1: his policy, foreign policy, domestic policy, fiscal policy. He is

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Speaker 1: following through on that. But yeah, he's going to break

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Speaker 1: some hearts along the way on the phrase. Also some

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Speaker 1: of the positions that the Justice Department is taking. For example,

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Speaker 1: in April, government lawyers pushed the court to leave intact

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Speaker 1: a Trump error rule designed to speed up reviews under

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Speaker 1: the National Environmental Policy Act and argue that the Neeper

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Speaker 1: rule didn't harm environmental groups anyway. So are the positions

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Speaker 1: that they're taking sort of astonishing for this administration. That

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Speaker 1: one really troubles me because it's pretty obvious that those

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Speaker 1: NIPA rules are allowing projects to be approved without the

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Speaker 1: kind of rigorous examination of their impact. Not just on climate,

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Speaker 1: but on environment broadly, wildlife, habitat, air quality, water quality,

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Speaker 1: and so forth. And yeah, I mean the Biden administration

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Speaker 1: went into court and told the court, let's leave these

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Speaker 1: NEIPER rules on the book while we think about how

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Speaker 1: to change them. And the environmentals were saying, well, no,

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Speaker 1: we need to get these rules off the books. We're

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Speaker 1: not going to end up with these rules, so why

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Speaker 1: leave them in place? Right? So that's a curious one.

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Speaker 1: And we've not heard any explanation from the Council on

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Speaker 1: Environmental Quality, which is, you know, the the entity that

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Speaker 1: actually manages the NIPA process. Haven't heard any explanation for

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Speaker 1: why the administration is taking that position and why frankly,

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Speaker 1: they're not moving more aggressively to replace those rules. They're

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Speaker 1: doing something similar with the rules under the Clean Water Act,

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Speaker 1: which we know are are really bad rule because according

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Speaker 1: to data that the Core of Engineers has developed, the

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Speaker 1: Trump Rule, which revised the scope of protection under the

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Speaker 1: Clean Water Act, has threatened of the waters in the

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Speaker 1: United States and over fifty of the wetlands. So we

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Speaker 1: know those rules are no good for the environment. And

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Speaker 1: yet again the Biden administration is telling the courts, don't vacate,

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Speaker 1: don't overturn the Trump rules. We're going to engage in

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Speaker 1: in what Administrator Reagan has called a stakeholder process and

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Speaker 1: try to reach some agreement with the opponents of the

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Speaker 1: Clean Water Act rules that the Obama administration had adopted.

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Speaker 1: So yeah, I mean, it's just gonna be a situation

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Speaker 1: where the Biden administration is going to be weighing each

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Speaker 1: one of these issues, apparently with an eye towards the

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Speaker 1: politics and eye towards of course they have to do

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Speaker 1: legally to make these changes. But um, they're slowing down,

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Speaker 1: They're slowing down. How much of this is the politics

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Speaker 1: as you talked about the oil leases in Alaska, and

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Speaker 1: how much is it not wanting to overturn what a

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Speaker 1: prior administration did. Well, some of it is is legally

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Speaker 1: is being you know, thought about in terms of will

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Speaker 1: the courts go along with the rapid and sort of

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Speaker 1: wholesale reversal of the Trump policies. I mean, you have

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Speaker 1: to remember Trump has now I think two hundred and

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Speaker 1: forty of his judicial appointments are on the federal bench,

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Speaker 1: and of course we know three of them are on

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Speaker 1: the Supreme Court. So there is some legitimacy to the

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Speaker 1: Biden administration and the Department of Justice proceeding with some caution,

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Speaker 1: you know, as they make these changes, but leaving some

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Speaker 1: of these rules in place with no announced deadline by

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Speaker 1: which they're going to be changed. That's that's concerning, I

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Speaker 1: would say, And it may be that as partly due

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Speaker 1: to getting staffed up at these various agencies. I mean,

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Speaker 1: we don't yet have uh, the new head of the

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Speaker 1: Department of Justice Environmental Section approved this um. This individual

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Speaker 1: named Kim has been nominated, but but you know, with

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Speaker 1: everything else going on in Congress, he hasn't been confirmed yet,

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Speaker 1: So we don't really have one of the key people

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Speaker 1: in the Biden administration that has to oversee all this litigation,

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Speaker 1: you know, that's going to be required to get resolved

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Speaker 1: in order for the Biden rules to finally take effect.

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Speaker 1: We've talked about the oil leases in Alaska before, and

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Speaker 1: I have to say I was very surprised because I

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Speaker 1: thought that was one of the things the Biden administration

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Speaker 1: would immediately try to get out of. And you know,

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Speaker 1: the thing of it is that that kind of a

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Speaker 1: decision has such a long, uh lead time. I mean

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Speaker 1: that they're going to be developing that oil and gas

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Speaker 1: for a very long time, thirty years maybe, So it's

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Speaker 1: not just a one off deal. It's a major deal, um.

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Speaker 1: And it has all kinds of environmental justice impact because

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Speaker 1: of the opposition not uniform, but but a lot of

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Speaker 1: opposition from the native villages up there. Oh yeah, that

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Speaker 1: was that was a bad one. So all those oil

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Speaker 1: leasts are going through, or just some of them, just

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Speaker 1: some of them. It's just it's just this one particular.

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Speaker 1: And it's true that this this National Petroleum Reserve was

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Speaker 1: set up, of course to develop the oil and gas.

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Speaker 1: That's the whole point of it. So you know, I

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Speaker 1: get that. Um. You know, the administration would be you know,

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Speaker 1: they be risking perhaps some legal vulnerability if they were

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Speaker 1: to completely uh you know, prohibited. But but they went

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Speaker 1: in and defended, um, the work that the Trump administration

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Speaker 1: had done under NIAPA under the Endangered Species Act um.

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Speaker 1: And um, you know, from what I have read anyway,

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Speaker 1: there's a lot of reason why that those environmental assessments

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Speaker 1: are not good and need to be redone and at

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Speaker 1: least that Biden administration could have agreed to do that,

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Speaker 1: but it went in and defended, you know, right down

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Speaker 1: the line everything that had been done by Trump. Thanks

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Speaker 1: so much, Pat. As always, that's Professor Pat Parento of

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Speaker 1: the Vermont Law School. And that's it for this edition

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Speaker 1: of the Bloomberg Law Show. Remember you can always at

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Speaker 1: the latest legal news on our Bloomberg Law Podcast. You

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Speaker 1: can find them on Apple Podcasts, Spotify, and at www

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Speaker 1: dot Bloomberg dot com, slash podcast, slash Law. I'm June

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Speaker 1: also and you're listening to Bloomberg