WEBVTT - Environmentalists Are Disappointed in Biden

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<v Speaker 1>This is Bloomberg Law with June Brussel from Bloomberg Radio

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<v Speaker 1>put a landmark decision by a Dutch court be the

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<v Speaker 1>start of a new war against big oil. A Dutch

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<v Speaker 1>court rule that Royal Dutch Shell had to cut its

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<v Speaker 1>emissions on the grounds that the oil giant is violating

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<v Speaker 1>human rights by contributing to global warming. Joining me is

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<v Speaker 1>environmental law professor Pat Parento of the Vermont Law School.

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<v Speaker 1>Pat tell us about this landmark decision. It's the first

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<v Speaker 1>time in history, in fact, that a court has ordered

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<v Speaker 1>a private corporation to not only comply with reducing their

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<v Speaker 1>emissions of carbon dioxide, but to a level that's literally

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<v Speaker 1>going to require Shell to reconsider its its entire business plan.

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<v Speaker 1>They're not going to be able to realize the exploitation

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<v Speaker 1>of all of the oil and gas reserves that they

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<v Speaker 1>have on their books. That's what this decision means. It

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

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<v Speaker 1>it is a lower court decision in the Netherlands, it's

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<v Speaker 1>the Hague District Court, so it will have to go

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<v Speaker 1>to the Dutch Supreme Court the way the earlier for

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<v Speaker 1>Agenda case did. But it's it's quite startling in its

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<v Speaker 1>potential impact. Can Shell accomplish what the courts set out

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<v Speaker 1>if it loses the appeal? Very uncertain unclear as to

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<v Speaker 1>how Shell would do this, because the most striking thing

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

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<v Speaker 1>You and I, people who pump their gas and drive

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<v Speaker 1>you know, gas pard vehicles all over the world. Um

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<v Speaker 1>So Shell has to somehow figure out how two offset

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<v Speaker 1>all of those emissions. They're called Scope three emissions in

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

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<v Speaker 1>no corporation. Amazon has ledged to do something like that

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<v Speaker 1>for the emissions from its supply chain, but but nobody

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<v Speaker 1>has actually done it. So it's very unclear as to

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<v Speaker 1>how Show would actually accomplished this reduction in its emissions

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<v Speaker 1>by m measured against two thousand nineteen levels. And the

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<v Speaker 1>allegation was a human rights violation, it was a mixed yes,

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<v Speaker 1>it was account similar to the Agenda case, which was

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<v Speaker 1>the decision of the Dead Supreme Court ordering the Dutch

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<v Speaker 1>government to reduce emissions UM this year last, which the

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<v Speaker 1>Dutch government did actually um so, so this one um

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<v Speaker 1>is based on the same kind of European Convention for

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<v Speaker 1>the Protection of Human Rights that the Dead Supreme Court

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<v Speaker 1>used in the Agenda case. It all so is looking

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<v Speaker 1>at all kinds of international agreements under the Paris Framework

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<v Speaker 1>UM and common law UM, sort of a sense of

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<v Speaker 1>you know, what's the duty of a corporation in light

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

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<v Speaker 1>said this court, an extra duty of care on the

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<v Speaker 1>part of not just the government, but on the part

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<v Speaker 1>of corporations that are, of course, you know, integral to

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<v Speaker 1>both the problem itself and two solutions to the problem.

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<v Speaker 1>So again, you know, just unprecedented UM and and unclear

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<v Speaker 1>exactly how this is all going to unfold. So this

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<v Speaker 1>is based on Dutch law. Is there any chance that

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<v Speaker 1>other courts in Europe will see this the same way? Well,

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<v Speaker 1>that's an open question. Some of the Dutch scholars that

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<v Speaker 1>I've been reading say that um, it could have a

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<v Speaker 1>bearing on how other European courts look at these questions.

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<v Speaker 1>Another case that bears watching in this frame is the

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<v Speaker 1>case from Portugal. The six young people in Portugal who

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<v Speaker 1>have persuaded the European Court of Human Rights to consider

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<v Speaker 1>their charge that I think six of the member states

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<v Speaker 1>of the European Union, most prominently Poland UM, are guilty

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<v Speaker 1>of exacerbating the climate problem, threatening the well being of

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<v Speaker 1>these young people and and you know, sort of bankrupting

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<v Speaker 1>their future kind of argument. And that case is being

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<v Speaker 1>brief now and will be argued sometime in the next

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<v Speaker 1>few months. So a lot of people are looking at

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<v Speaker 1>that court in that decisions as yet another benchmark, if

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

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<v Speaker 1>a lot happening. The German Constitutional Court also recognized the

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<v Speaker 1>rights of future generations are being threatened by climate change

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<v Speaker 1>and have imposed some additional requirements on the federal government

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<v Speaker 1>in Germany UH to to come up with plans to

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<v Speaker 1>address that. We saw in Australia. Another court in Australia

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<v Speaker 1>has recognized once again climate change threatening future generations in

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<v Speaker 1>the context of approving coal mines. Of course, Australia is

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<v Speaker 1>still producing an enormous amount of coal that it sends

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<v Speaker 1>to China and India and other places. So yeah, I

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<v Speaker 1>mean it's hard to keep tracks. There are so many

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<v Speaker 1>cases now moving through different courts around the world. But

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<v Speaker 1>in the United States these cases, for example, there is

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

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<v Speaker 1>moving in the United States, are they not? Really? The

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<v Speaker 1>Juliana case, which was the original youth plaintiff case, the

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<v Speaker 1>plaintiffs in that case have gone back to the Federal

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<v Speaker 1>District Court in Oregon and asked Judge Akin to reopen

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<v Speaker 1>the case. It was dismissed by the Ninth Circuit. But

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<v Speaker 1>the planets are trying to get Judge Akin to allow

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<v Speaker 1>them to amend their complaints and narrow the scope of

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<v Speaker 1>remedies so that, you know, something that courts can actually do.

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<v Speaker 1>And Judge Akin has ordered the party's into mediation. That

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<v Speaker 1>means the Justice Department and Our Children's Trust, which represents

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

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<v Speaker 1>piece of the puzzle. But generally, climate litigation is not

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<v Speaker 1>going forward in any significant way in the United States.

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<v Speaker 1>There's a lot of cases that are challenging individual fossil

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<v Speaker 1>fuel projects, coal mines, oil and gas releases, pipeline you know,

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<v Speaker 1>we're seeing that all the time. But but we're not

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<v Speaker 1>seeing any of the kinds of cases that the Shell

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<v Speaker 1>decision indicates, or this German Constitutional Court decision I mentioned

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<v Speaker 1>indicate we're not seeing anything on that level. In the

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<v Speaker 1>United States. There was an instance of a first time

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<v Speaker 1>activist shareholder with a tiny steak in Exon scoring a

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<v Speaker 1>historic win with getting two seats on the board. So

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<v Speaker 1>is it more from within that we're going to see

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<v Speaker 1>change than from the courts? Yeah? That was that was

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<v Speaker 1>remarkable because you know, usually corporations at their annual meeting

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<v Speaker 1>are able to squash these shareholder petitions. But in this case,

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<v Speaker 1>these these shareholder activists, You're right, we're able to get

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<v Speaker 1>two seats um on the board. Now that doesn't mean

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

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<v Speaker 1>inroad into what has been a closed shop or a

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<v Speaker 1>closed board for the activists. And you're also seeing more

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<v Speaker 1>and more in the financial sector increasing concerns and comments

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<v Speaker 1>about the financial risks of all this investment in fossil fuels.

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<v Speaker 1>We saw that with black Rock, you know, the largest

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<v Speaker 1>brokerage firm that has over what seven trillion dollars in

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<v Speaker 1>its portfolio, that the head of black Rock saying they're

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<v Speaker 1>gonna they're they're shifting their focus to sustainability and investments

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<v Speaker 1>in you know, newer, cleaner technologies and so forth. So

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<v Speaker 1>an awful lot happening on the climate front. So I

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<v Speaker 1>want to turn to the Biden administration because environmentalists had

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<v Speaker 1>expected a complete reversal of Trump era legal positions, but

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<v Speaker 1>they've been disappointed in the first months of the Biden administration.

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<v Speaker 1>Politics in truths, Reality and truths. Yeah, Biden is facing

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<v Speaker 1>tensions from both sides. On the left, sort of progressives

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<v Speaker 1>in the climate activists. You know, they want an end

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<v Speaker 1>to oil and gas development right now. They want to

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<v Speaker 1>stop all the pipelines. They want to stop oil and

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<v Speaker 1>gas development everywhere. And Biden during the campaign made some

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

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

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<v Speaker 1>several hundred or thousands of workers out of work, and

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<v Speaker 1>so he took a shot from the unions on that.

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<v Speaker 1>And now most recently, the Justice Department has gone into

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<v Speaker 1>this case in Alaska in the Arctic Petroleum Reserve and

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<v Speaker 1>defended the decision of the Trump administration to open up

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<v Speaker 1>the Arctic. The scuttle butt on that is that Biden

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<v Speaker 1>feels like he owes Lisa Murkowski, you know, one of

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<v Speaker 1>the few Republicans who ever agrees with anything that the

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<v Speaker 1>Democrats in the Senate want to do and what Biden

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<v Speaker 1>would like to do with his infrastructure bill and all

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

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<v Speaker 1>cut these deals and balance the left and the right

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

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<v Speaker 1>Biden is moving in the right direction. He's not moving

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<v Speaker 1>as aggressively as we'd hoped, but he is moving in

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<v Speaker 1>the right direction, and he's making climate a centerpiece of

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<v Speaker 1>his policy, foreign policy, domestic policy, fiscal policy. He is

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

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<v Speaker 1>some hearts along the way on the phrase. Also some

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<v Speaker 1>of the positions that the Justice Department is taking. For example,

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<v Speaker 1>in April, government lawyers pushed the court to leave intact

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<v Speaker 1>a Trump error rule designed to speed up reviews under

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<v Speaker 1>the National Environmental Policy Act and argue that the Neeper

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<v Speaker 1>rule didn't harm environmental groups anyway. So are the positions

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<v Speaker 1>that they're taking sort of astonishing for this administration. That

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<v Speaker 1>one really troubles me because it's pretty obvious that those

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<v Speaker 1>NIPA rules are allowing projects to be approved without the

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<v Speaker 1>kind of rigorous examination of their impact. Not just on climate,

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<v Speaker 1>but on environment broadly, wildlife, habitat, air quality, water quality,

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<v Speaker 1>and so forth. And yeah, I mean the Biden administration

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<v Speaker 1>went into court and told the court, let's leave these

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<v Speaker 1>NEIPER rules on the book while we think about how

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<v Speaker 1>to change them. And the environmentals were saying, well, no,

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<v Speaker 1>we need to get these rules off the books. We're

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<v Speaker 1>not going to end up with these rules, so why

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

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<v Speaker 1>And we've not heard any explanation from the Council on

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<v Speaker 1>Environmental Quality, which is, you know, the the entity that

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<v Speaker 1>actually manages the NIPA process. Haven't heard any explanation for

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<v Speaker 1>why the administration is taking that position and why frankly,

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<v Speaker 1>they're not moving more aggressively to replace those rules. They're

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<v Speaker 1>doing something similar with the rules under the Clean Water Act,

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<v Speaker 1>which we know are are really bad rule because according

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<v Speaker 1>to data that the Core of Engineers has developed, the

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<v Speaker 1>Trump Rule, which revised the scope of protection under the

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<v Speaker 1>Clean Water Act, has threatened of the waters in the

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<v Speaker 1>United States and over fifty of the wetlands. So we

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<v Speaker 1>know those rules are no good for the environment. And

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<v Speaker 1>yet again the Biden administration is telling the courts, don't vacate,

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

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<v Speaker 1>in what Administrator Reagan has called a stakeholder process and

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<v Speaker 1>try to reach some agreement with the opponents of the

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<v Speaker 1>Clean Water Act rules that the Obama administration had adopted.

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<v Speaker 1>So yeah, I mean, it's just gonna be a situation

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<v Speaker 1>where the Biden administration is going to be weighing each

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<v Speaker 1>one of these issues, apparently with an eye towards the

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<v Speaker 1>politics and eye towards of course they have to do

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

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<v Speaker 1>They're slowing down. How much of this is the politics

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<v Speaker 1>as you talked about the oil leases in Alaska, and

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<v Speaker 1>how much is it not wanting to overturn what a

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<v Speaker 1>prior administration did. Well, some of it is is legally

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<v Speaker 1>is being you know, thought about in terms of will

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<v Speaker 1>the courts go along with the rapid and sort of

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<v Speaker 1>wholesale reversal of the Trump policies. I mean, you have

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<v Speaker 1>to remember Trump has now I think two hundred and

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<v Speaker 1>forty of his judicial appointments are on the federal bench,

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<v Speaker 1>and of course we know three of them are on

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<v Speaker 1>the Supreme Court. So there is some legitimacy to the

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<v Speaker 1>Biden administration and the Department of Justice proceeding with some caution,

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<v Speaker 1>you know, as they make these changes, but leaving some

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<v Speaker 1>of these rules in place with no announced deadline by

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

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<v Speaker 1>would say, And it may be that as partly due

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<v Speaker 1>to getting staffed up at these various agencies. I mean,

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<v Speaker 1>we don't yet have uh, the new head of the

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<v Speaker 1>Department of Justice Environmental Section approved this um. This individual

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<v Speaker 1>named Kim has been nominated, but but you know, with

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

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<v Speaker 1>So we don't really have one of the key people

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<v Speaker 1>in the Biden administration that has to oversee all this litigation,

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<v Speaker 1>you know, that's going to be required to get resolved

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<v Speaker 1>in order for the Biden rules to finally take effect.

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<v Speaker 1>We've talked about the oil leases in Alaska before, and

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<v Speaker 1>I have to say I was very surprised because I

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<v Speaker 1>thought that was one of the things the Biden administration

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<v Speaker 1>would immediately try to get out of. And you know,

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<v Speaker 1>the thing of it is that that kind of a

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<v Speaker 1>decision has such a long, uh lead time. I mean

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<v Speaker 1>that they're going to be developing that oil and gas

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<v Speaker 1>for a very long time, thirty years maybe, So it's

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<v Speaker 1>not just a one off deal. It's a major deal, um.

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<v Speaker 1>And it has all kinds of environmental justice impact because

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<v Speaker 1>of the opposition not uniform, but but a lot of

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<v Speaker 1>opposition from the native villages up there. Oh yeah, that

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<v Speaker 1>was that was a bad one. So all those oil

0:15:39.480 --> 0:15:42.880
<v Speaker 1>leasts are going through, or just some of them, just

0:15:43.000 --> 0:15:45.400
<v Speaker 1>some of them. It's just it's just this one particular.

0:15:45.680 --> 0:15:49.560
<v Speaker 1>And it's true that this this National Petroleum Reserve was

0:15:49.720 --> 0:15:53.040
<v Speaker 1>set up, of course to develop the oil and gas.

0:15:53.040 --> 0:15:54.680
<v Speaker 1>That's the whole point of it. So you know, I

0:15:54.960 --> 0:15:59.480
<v Speaker 1>get that. Um. You know, the administration would be you know,

0:15:59.760 --> 0:16:06.400
<v Speaker 1>they be risking perhaps some legal vulnerability if they were

0:16:06.440 --> 0:16:11.080
<v Speaker 1>to completely uh you know, prohibited. But but they went

0:16:11.160 --> 0:16:15.520
<v Speaker 1>in and defended, um, the work that the Trump administration

0:16:15.560 --> 0:16:19.240
<v Speaker 1>had done under NIAPA under the Endangered Species Act um.

0:16:19.480 --> 0:16:23.560
<v Speaker 1>And um, you know, from what I have read anyway,

0:16:23.960 --> 0:16:26.960
<v Speaker 1>there's a lot of reason why that those environmental assessments

0:16:26.960 --> 0:16:29.800
<v Speaker 1>are not good and need to be redone and at

0:16:29.880 --> 0:16:32.400
<v Speaker 1>least that Biden administration could have agreed to do that,

0:16:33.000 --> 0:16:36.600
<v Speaker 1>but it went in and defended, you know, right down

0:16:36.600 --> 0:16:40.160
<v Speaker 1>the line everything that had been done by Trump. Thanks

0:16:40.200 --> 0:16:43.520
<v Speaker 1>so much, Pat. As always, that's Professor Pat Parento of

0:16:43.600 --> 0:16:46.280
<v Speaker 1>the Vermont Law School. And that's it for this edition

0:16:46.320 --> 0:16:49.000
<v Speaker 1>of the Bloomberg Law Show. Remember you can always at

0:16:49.040 --> 0:16:51.760
<v Speaker 1>the latest legal news on our Bloomberg Law Podcast. You

0:16:51.800 --> 0:16:55.680
<v Speaker 1>can find them on Apple Podcasts, Spotify, and at www

0:16:55.760 --> 0:16:59.840
<v Speaker 1>dot Bloomberg dot com, slash podcast, slash Law. I'm June

0:17:00.040 --> 0:17:02.119
<v Speaker 1>also and you're listening to Bloomberg