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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcasts. It's the Kids

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Speaker 1: for the Trump Administration zero in a landmark climate change lawsuit,

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Speaker 1: twenty one children and young adults who are suing the

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Speaker 1: US government for failing to properly address climate change for decades,

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Speaker 1: defeated the Trump administration's latest attempt to kick the dispute

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Speaker 1: out of court. The Ninth Circuit denied the government's use

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Speaker 1: of a rare procedural move, a writ of mandamus, saying

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Speaker 1: it was entirely premature. Joining me is Mary Would, a

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Speaker 1: professor at the University of Oregon Law School. Mary, the

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Speaker 1: writ of mandamus is rarely used and rarely granted. Tell

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Speaker 1: us what the Trump administration was arguing there. Yeah, the

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Speaker 1: Trump of illustration was basically pulling out this wild card

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Speaker 1: that is rarely used. In fact us called an extraordinary

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Speaker 1: and drastic remedy. And what the Trump administration tried to

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Speaker 1: do was just skip the normal process of appeal. So generally,

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Speaker 1: when trials happened, UM, the party is coming before the

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Speaker 1: court and the trial judge issues findings and that process

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Speaker 1: m refines the issues and then after that is all completed,

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Speaker 1: then either party can take an appeal. But what the

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Speaker 1: Trump administration tried to do was say, oh, we want

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Speaker 1: to skip all that and we want to go directly

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Speaker 1: to the Ninth Circuit. And they couldn't do that through

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Speaker 1: the normal feel process, so they pulled out this really

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Speaker 1: extraordinary um rid of mandamus, which is just rarely used

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Speaker 1: because if you used that very frequently, you would um

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Speaker 1: circumvent the entire process that is set up for the

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Speaker 1: orderly administration of justice. So what was the Ninth Circuits

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Speaker 1: decision based on? What did the courts say about the

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Speaker 1: Trump administration's arguments? Yeah, well, the Ninth Circuit um stayed

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Speaker 1: really within the lines. I mean, it's a very standard opinion.

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Speaker 1: There's just no surprises in it. Um, there are clear

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Speaker 1: factors for determining whether this writ should be issued. There's

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Speaker 1: five factors that were well settled in the lawn. The

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Speaker 1: Ninth Circus said none of them are met. So one

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Speaker 1: of them is, you know, does the petitioner. That's the

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Speaker 1: Trump administration have any direct appeal. Well, of course they

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Speaker 1: do at the end of trial. Um, they have an appeal. Um,

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Speaker 1: will the petition be damaged? Um by waiting in a

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Speaker 1: way that's not correctable. No, the Trump administration said, oh,

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Speaker 1: we do not want to have to go through the

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Speaker 1: discovery process, which is a process that lawyers use in

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Speaker 1: just out every case to get information from from the

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Speaker 1: other side. Um. And the Ninth circuits that will everybody

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Speaker 1: goes through the discovery process. That's that's not a reason,

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Speaker 1: um to um to to thwart the trial process. So um, yeah,

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Speaker 1: did you have another reason there? And then um they said.

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Speaker 1: The Trump administration had also said, well, this is a

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Speaker 1: very novel issue. The truly, um, climate is a very

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Speaker 1: novel threat to the planet. But in terms of the

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Speaker 1: process of this case, it was very ordinary. So the

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Speaker 1: court rejected virtually all of the Trump administration's arguments. So,

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Speaker 1: going to the climate issue, this is the first time

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Speaker 1: the federal government is being sued for violating constitutional rights

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Speaker 1: because of its climate policies. How ambitious is this case? Well,

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Speaker 1: it's a business in the sense that we have a

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Speaker 1: climate system cleaning out of control. And it's sort of like,

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Speaker 1: if you wanted to make an analogy, Um, John Holden,

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Speaker 1: President Obama's science have either said, it's almost as if

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Speaker 1: you're in a car with bad breaks driving towards the

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Speaker 1: cliffs in the fog. And what's happened now is we've

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Speaker 1: got a driver in the car, President Trump, that is

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Speaker 1: pressing his foot down on the ccelerator. And the question

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Speaker 1: is do we want a police officer to pull that

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Speaker 1: car over before it's too late, before we plunge over

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Speaker 1: this climate cliff. So if you want to think of

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Speaker 1: the courts in this way, it's said, it's sort of

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Speaker 1: akin to that. The writ of man Damis caused a

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Speaker 1: six month delay in this case. And the UN former

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Speaker 1: Climate chief came out in Gin and just about when

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Speaker 1: this word of man Damis petition was biled and said,

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Speaker 1: with other scientists, we only have three years to start

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Speaker 1: pushing down this carbon emissions curve. Otherwise it's going to

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Speaker 1: be too late. We're gonna go into these irrevocable thresholds.

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Speaker 1: So in terms of the um consequences of this case,

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Speaker 1: I can't imagine a bigger case on the planet. In

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Speaker 1: terms of the particular legal issue in front of the court.

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Speaker 1: It was just a routine sort of disposition of a

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Speaker 1: judicial process issue. Now let's talk about if the Trump

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Speaker 1: administration doesn't appeal this to the full nine Circuit or

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Speaker 1: to the Supreme Court, it will go into the discovery phase.

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Speaker 1: And plaintiffs are claiming that for more than fifty years,

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Speaker 1: the Office of the President and eight federal agencies promoted

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Speaker 1: regulations to support the energy industries proliferation of fossil fuels.

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Speaker 1: Are they going to be able to get documents dating

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Speaker 1: back to Lyndon Johnson's presidency, Well, you and I could

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Speaker 1: get those documents. Um. Many of the documents are already

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Speaker 1: public record, and so um they have documents spanning several

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Speaker 1: decades that you and I can just get hold of

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Speaker 1: by browsing the Internet. So a lot of the information

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Speaker 1: is already public um. But there's still probably discovery that

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Speaker 1: the attorneys want um um to pursue other matters. Um

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Speaker 1: that that I do want to underscore that this has

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Speaker 1: been well known for decades and government has pursued this

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Speaker 1: fossil fuel policy knowing that it would bring us to

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Speaker 1: the brink of disaster. The problem for us is that

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Speaker 1: we are at that brink right now, we happen to

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Speaker 1: be the people living right now whom were um you know,

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Speaker 1: predicted many days, many decades ago to have these consequences,

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Speaker 1: and so the predictions are now turning into our actual

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Speaker 1: reality now where they're entering the discovery phase. The plantiffs

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Speaker 1: attorney has said she wants depositions from many representatives of

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Speaker 1: top federal agencies they had earlier sawt the testimony of

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Speaker 1: Rex Tillerson. How difficult is it going to be for

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Speaker 1: the judge to make these determinations? Well, judges are just

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Speaker 1: very well versed in discovery processes. The judges in this

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Speaker 1: case as to the magistrate and then um Federal District

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Speaker 1: Judge Aiken, and they deal with discovery matters all the

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Speaker 1: time in cases against government. So UM, it's really not

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Speaker 1: uh not something out of the ordinary to try to

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Speaker 1: get depositions against agency people. And the judges are just

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Speaker 1: very accustomed to managing the discovery process. So we'll see

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Speaker 1: where that goes. Um. When Rex Tillerson, Um, when the

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Speaker 1: plane's wanted to depose him, that wasn't his capacity, um,

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Speaker 1: his priority pacity. As with the American patrollingmist that wasn't

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Speaker 1: in his capacity as um, you know, head of Department State. Yeah,

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Speaker 1: so we've a got a minute here, Mary. If the

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Speaker 1: Trump administration, as some expect, it will ask the Supreme

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Speaker 1: Court to review this recent decision by the Ninth Circuit.

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Speaker 1: Do you believe that the court would take that case

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Speaker 1: not this decision? I don't this. This decision operates so

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Speaker 1: well within the lines, so narrow. I really can't see

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Speaker 1: any appealable issue on it at all. Um. So what

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Speaker 1: it would cause is delay if there were a stay

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Speaker 1: imposed on the discovery process. But right now the parties

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Speaker 1: are going to head with discovery and they're going to

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Speaker 1: go ahead and schedule a trial and there's no stay.

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Speaker 1: So UM, I fully expect a trial. All right, Thanks

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Speaker 1: so much for being here. That's Mary Wood. She's a

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Speaker 1: professor at the University of Oregon Law School. Just after

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Speaker 1: a data breach at Equifax exposed nearly one fifty million

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Speaker 1: Americans to the threat of identity theft, Senator Elizabeth Warren

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Speaker 1: grilled the company's former CEO, Richard Smith about the hack.

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Speaker 1: Because of this breach, consumers will spend the rest of

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Speaker 1: their lives worrying about identity theft. Small banks and credit

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Speaker 1: unions will have to pay to issue new credit cards.

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Speaker 1: Businesses will lose money to thieves, but Equifax will be

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Speaker 1: just fine. Heck, it could actually come out ahead. But now,

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Speaker 1: in the wake of Equifax and several other high profile hacks,

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Speaker 1: American banks and retailers are fighting over whether financial firms

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Speaker 1: should follow a new national standard to quickly notify consumers

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Speaker 1: when they've experienced a data breach. Joining us from our

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Speaker 1: Bloomberg studios in Washington, isn't only Nick s Bloomberg News

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Speaker 1: Corporate Influence reporter Naomi tell us more about this House

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Speaker 1: bill and why it would end up exempting Equifax from

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Speaker 1: new requirements. Yes, well, essentially, Representative Blaine Luca Meyer has

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Speaker 1: drafted a proposed bill UH that would essentially target retail

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Speaker 1: groups UH businesses that are not part of the financial

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Speaker 1: industry to issue a national standard for when and under

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Speaker 1: what circumstances they have to notify consumers as well as

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Speaker 1: law enforcements that there has been a data breach. Now,

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Speaker 1: the thinking goes that Equifax and these other banks don't

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Speaker 1: need to be part of this proposed legislation because they

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Speaker 1: already have a regulatory framework governing data breaches that they

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Speaker 1: have to adhere to, and of course not everyone agrees

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Speaker 1: with that idea. Also, I was just checking uh the

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Speaker 1: story in the terminal about this uh this uh Dodd

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Speaker 1: Frank bill reform bill that is in the Senate right now,

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Speaker 1: and there's a provision in there that that also covers Equifax.

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Speaker 1: Um an amendment from Chairman Crapo the Banking Committee that

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Speaker 1: says it would require Equifax and competitors to provide create

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Speaker 1: free credit monitoring to some consumers after a breach. Is

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Speaker 1: that all wrapped into this? Yeah, Well, there's there's been

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Speaker 1: several there's definitely a lot of energy on the Hill

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Speaker 1: from lawmakers to attack this issue. There has been from

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Speaker 1: a long time. So we've seen a few different proposals

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Speaker 1: crop up. Um. Uh that that that's part of it

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Speaker 1: doesn't surprise me. Um. The one that there appeared to

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Speaker 1: be very energized and fighting over is this is this

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Speaker 1: represented luken Meyer's proposal and Naomi, are there any teeth

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Speaker 1: to these proposals? Any penalties? Mean? Equifax has been sailing

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Speaker 1: by and just last week reported again that there were

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Speaker 1: that there were more people that it hadn't been able

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Speaker 1: to identify. Yes, well, and that's and that's one part

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Speaker 1: of the discussion. UM Essentially if H Lucamyer's proposal essentially

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Speaker 1: calls for UH these organizations and businesses to identify not

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Speaker 1: only that there's been a breach, but that there's potential

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Speaker 1: harm to consumers identity theft. There are some people who

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Speaker 1: think that doesn't go far enough. They think they should

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Speaker 1: be required to notify consumers listen as there is a breach.

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Speaker 1: They think there should be a time limit on it

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Speaker 1: when they have to UH to notify consumers as well

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Speaker 1: as law enforcement. UM. And so this isn't the strongest

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Speaker 1: proposal out there. In fact, there's forty eight states that

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Speaker 1: already have their own proposals, and some of them go

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Speaker 1: much further. What about recourse for consumers and for for

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Speaker 1: others in case there are future data breaches? What what

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Speaker 1: recourse will they would they have in this Lukamer bill? Well, UM,

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Speaker 1: the this is UH you know, the FTC would be

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Speaker 1: the enforcer of this, and so they could obviously go

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Speaker 1: that row in the FTC can investigate and UM decide

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Speaker 1: UH you know what what sorts of penalties there could be.

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Speaker 1: And as far as this bill does, it have any

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Speaker 1: better chance of passing than other bills. I mean, lawmakers

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Speaker 1: have tried to pass national data breach notification laws for years,

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Speaker 1: and this one seems to have a lot of opposition

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Speaker 1: from consumer advocates. Well, there is some energy right now

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Speaker 1: because of the Equifax breach, and not only Equifax, there's

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Speaker 1: been breaches at Yahoo. There's been breaches that Uber. They've

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Speaker 1: made the news. There is interest among lawmakers for passing

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Speaker 1: such a bill. Now, whether they'll be able to get

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Speaker 1: through the gridlock of Washington and resolve these disputes between

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Speaker 1: the bankers, the retailers, and the consumer groups remains an

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Speaker 1: open question. UM, But I wouldn't rule it out completely

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Speaker 1: and nail me. As far as the timing of all this, UM,

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Speaker 1: there doesn't have anything to do with something that's happening

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Speaker 1: coming up this November. You know, there's what there's oh yeah,

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Speaker 1: term elections for Congress, and this is an issue that

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Speaker 1: voters just asking it. I mean, it is an issue

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Speaker 1: that consumers obviously care about. UM, and tackling this issue

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Speaker 1: would obviously help anyone in the midterm elections. Uh. It

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Speaker 1: should be noted that this is a fight that's happening

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Speaker 1: before the bill has even been introduced. UM, and so

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Speaker 1: there's definitely energized communities on the banker side and on

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Speaker 1: the retailer side and consumer sides that will be watching

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Speaker 1: it very closely. Who are the just about us here,

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Speaker 1: Who are the toughest lobbying groups out there on this well,

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Speaker 1: you know, UM, the National Retail Federation is a group

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Speaker 1: that they launched an advertising camp paying around that. They've

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Speaker 1: been very vocal about their opposition. You know, they think

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Speaker 1: that any national any bill that establishes a national standard

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Speaker 1: for data breach notification, should include the banks. UM. On

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Speaker 1: the other side, you have the American Bankers Association, which

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Speaker 1: is also you know, been vocal about, you know, saying,

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Speaker 1: we already have regulations that we have to follow, and

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Speaker 1: in fact they're stricter, um and tougher than the ones

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Speaker 1: that retailers currently follow. UM. And so you know, those

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Speaker 1: are those are two big organizations, and they have formed

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Speaker 1: their own coalitions around these issues, and so UM, you know,

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Speaker 1: they will definitely continue to be watching this issue and

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Speaker 1: continue will as you will as well. Naomi, Thanks so much.

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Speaker 1: That's Naomi Nick, Bloomberg News Corporate Influence reporter. Thanks for

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Speaker 1: listening to the Bloomberg Law Podcast. You can subscribe and

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Speaker 1: listen to the show on Apple Podcasts, SoundCloud, and on

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Speaker 1: bloomberg dot com slash podcast. I'm June Brolso this is

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Speaker 1: Bloomberg