1 00:00:00,480 --> 00:00:05,680 Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:05,800 --> 00:00:09,200 Speaker 1: It's a watershed moment for gay rights, as the Supreme 3 00:00:09,240 --> 00:00:12,760 Speaker 1: Court ruled in a landmark case on Monday that federal 4 00:00:12,840 --> 00:00:17,240 Speaker 1: law protects gay and transgender workers from job discrimination, giving 5 00:00:17,280 --> 00:00:21,160 Speaker 1: millions of LGBT people in dozens of states civil rights 6 00:00:21,160 --> 00:00:24,960 Speaker 1: they'd sought for decades. Gerald Bostock was one of the plaintiffs. 7 00:00:25,200 --> 00:00:30,240 Speaker 1: I'm overwhelmed with joy and mccarts filled with with gratitude. 8 00:00:30,960 --> 00:00:33,360 Speaker 1: It was a six to three decision, with Chief Justice 9 00:00:33,479 --> 00:00:36,600 Speaker 1: John Roberts and Justice Neil Gorsuch joining the courts for 10 00:00:36,800 --> 00:00:39,800 Speaker 1: liberals in the majority. One of the biggest surprises was 11 00:00:39,840 --> 00:00:43,440 Speaker 1: that the majority opinion was written by conservative Justice Gorsuch, 12 00:00:43,640 --> 00:00:46,519 Speaker 1: although perhaps there was a hint during the oral arguments 13 00:00:46,720 --> 00:00:49,839 Speaker 1: that he would interpret the words sex entitle seven to 14 00:00:49,960 --> 00:00:54,640 Speaker 1: cover sexual orientation and gender identity. Let's do truth, okay, 15 00:00:56,640 --> 00:01:02,400 Speaker 1: wouldn't Wouldn't the employer maybe say it's because this was 16 00:01:02,560 --> 00:01:07,080 Speaker 1: this person was a man who liked other men, and 17 00:01:07,240 --> 00:01:11,880 Speaker 1: isn't that first part sex. My guest is Steve Sanders, 18 00:01:12,000 --> 00:01:16,360 Speaker 1: professor at Indiana University's Moral School of Law. So Steve 19 00:01:16,440 --> 00:01:20,480 Speaker 1: explained why this is a landmark decision. It's landmark for 20 00:01:20,600 --> 00:01:23,399 Speaker 1: a number of reasons to First of all, it's the 21 00:01:23,400 --> 00:01:26,840 Speaker 1: first time the U. S. Supreme Court has delivered a 22 00:01:26,920 --> 00:01:30,280 Speaker 1: major gay and lesbian and transgender rights decision that was 23 00:01:30,360 --> 00:01:34,080 Speaker 1: based on the interpretation of a federal statute, something passed 24 00:01:34,080 --> 00:01:40,720 Speaker 1: by Congress, as opposed to a constitutional decision. Constitutional language allows, 25 00:01:40,840 --> 00:01:44,720 Speaker 1: you know, for broader discussions of concepts like dignity and 26 00:01:45,200 --> 00:01:50,000 Speaker 1: evolving social understandings. State story interpretation is more limited. Yet 27 00:01:50,040 --> 00:01:53,880 Speaker 1: Justice Gorset found a way through his method of interpretation 28 00:01:54,400 --> 00:01:57,240 Speaker 1: to say that in existing law dating back to n 29 00:01:58,840 --> 00:02:05,400 Speaker 1: on sex to sscrimination also encompasses discrimination against gay's, lesbians, bisexuals, 30 00:02:05,440 --> 00:02:11,520 Speaker 1: and transgender people. It's also landmark because this extends federal 31 00:02:11,600 --> 00:02:15,760 Speaker 1: law to protect employment. In all fifty states, there has 32 00:02:15,840 --> 00:02:22,600 Speaker 1: been no federal law expressly addressing sexual orientation or transgender discrimination. 33 00:02:22,960 --> 00:02:27,000 Speaker 1: Only twenty one states have such laws on the books, 34 00:02:27,040 --> 00:02:29,960 Speaker 1: and so it's significant because it extends the reach of 35 00:02:30,040 --> 00:02:34,360 Speaker 1: federal protections for gay's, lesbians, and transgender people in a 36 00:02:34,440 --> 00:02:37,720 Speaker 1: significant way. And finally, the third way in which it's 37 00:02:38,000 --> 00:02:42,760 Speaker 1: landmark is the author, you know, a textualist Donald Trump 38 00:02:42,800 --> 00:02:47,040 Speaker 1: appointee to the Supreme Court, who delivered an opinion that 39 00:02:47,120 --> 00:02:50,360 Speaker 1: I think many people would not have expected. And if 40 00:02:50,400 --> 00:02:55,080 Speaker 1: it doesn't, you know, scramble our ideas and preconceptions about 41 00:02:55,120 --> 00:02:58,560 Speaker 1: what it means to be a democratically appointed justice versus 42 00:02:58,560 --> 00:03:01,720 Speaker 1: a Republican appointed justice. At least it shows that those 43 00:03:01,760 --> 00:03:08,000 Speaker 1: debates can be limited and often constrained. Justice Course, It's said, 44 00:03:08,120 --> 00:03:11,399 Speaker 1: only the written word is the law, and all persons 45 00:03:11,440 --> 00:03:15,040 Speaker 1: are entitled to its benefit. Did he really stick to 46 00:03:15,400 --> 00:03:19,880 Speaker 1: textualism in his opinion? Well, so this is a debate 47 00:03:19,919 --> 00:03:23,079 Speaker 1: that I think will continue to rage in law reviews 48 00:03:23,160 --> 00:03:26,400 Speaker 1: and scholarly discourse and so forth for a while. You know, 49 00:03:26,520 --> 00:03:30,720 Speaker 1: what does it mean to do textualist analysis? Here's what 50 00:03:30,840 --> 00:03:34,560 Speaker 1: Justice Course has said. Justice Course had said, Congress in 51 00:03:35,520 --> 00:03:38,960 Speaker 1: four issued a very broad mandate that employers may not 52 00:03:39,120 --> 00:03:44,680 Speaker 1: discriminate because of sex. The critical assumption that he makes, 53 00:03:44,760 --> 00:03:48,480 Speaker 1: or the central argument that he makes, is that when 54 00:03:48,600 --> 00:03:53,480 Speaker 1: you are considering a person's sexual orientation or you're considering 55 00:03:53,520 --> 00:03:58,440 Speaker 1: their gender identity, you are invariably thinking about their sex. 56 00:03:58,600 --> 00:04:01,920 Speaker 1: And if you take act and against them the disadvantagism 57 00:04:02,200 --> 00:04:04,360 Speaker 1: you fire them, you refuse to promote them, and so forth, 58 00:04:04,600 --> 00:04:07,640 Speaker 1: you were taking into account their sex. A simple example, 59 00:04:07,800 --> 00:04:10,440 Speaker 1: you have an employee who's a man who wants to 60 00:04:10,520 --> 00:04:13,920 Speaker 1: date a woman, find the employer has no problem with that. 61 00:04:14,480 --> 00:04:18,240 Speaker 1: You have a female employee who wants to date a woman, 62 00:04:18,640 --> 00:04:21,760 Speaker 1: and the employer does have a problem with that. The 63 00:04:21,800 --> 00:04:25,240 Speaker 1: employer has taken account of the employee sex. The employer 64 00:04:25,320 --> 00:04:28,520 Speaker 1: is basically saying, I believe that women should date men, 65 00:04:28,600 --> 00:04:31,600 Speaker 1: but that women should not date women. They are discriminating 66 00:04:31,640 --> 00:04:35,400 Speaker 1: against the person based on what sex they belong to. 67 00:04:35,520 --> 00:04:39,520 Speaker 1: And Similarly, if you discriminate against a person who now 68 00:04:39,680 --> 00:04:43,560 Speaker 1: presents to the world as female, but whose birth certificate 69 00:04:43,640 --> 00:04:47,039 Speaker 1: says they are male, and you take action against that person, 70 00:04:47,440 --> 00:04:50,560 Speaker 1: yet you don't take action against a person who is 71 00:04:50,800 --> 00:04:54,200 Speaker 1: male and whose birth certificate also says male, you were 72 00:04:54,240 --> 00:04:57,479 Speaker 1: taking into account their sex. That the critical assumption here 73 00:04:57,560 --> 00:05:01,000 Speaker 1: is that the text of the statute says sex, and 74 00:05:01,040 --> 00:05:04,880 Speaker 1: that when you discriminate against people because they're gay, lesbian, 75 00:05:04,960 --> 00:05:08,839 Speaker 1: or transgender, as part of that decision, you are inevitably 76 00:05:08,960 --> 00:05:13,359 Speaker 1: making some judgment about proper behavior for a member of 77 00:05:13,440 --> 00:05:19,159 Speaker 1: their sex. Justice Samuel Alito's descent was stinging he said, 78 00:05:19,240 --> 00:05:24,240 Speaker 1: the arrogance of Gorsuch's argument is breathtaking. What problem did 79 00:05:24,240 --> 00:05:28,599 Speaker 1: he have with the writing of gore such as opinion? Well, again, 80 00:05:28,720 --> 00:05:31,680 Speaker 1: from a technical standpoint, I think part of it gets 81 00:05:31,720 --> 00:05:34,120 Speaker 1: to what does it mean to be a textualist, And 82 00:05:34,320 --> 00:05:38,440 Speaker 1: different academics and different justices may disagree on that. But 83 00:05:38,560 --> 00:05:41,760 Speaker 1: what Justice Alito is saying is you can't think about 84 00:05:41,760 --> 00:05:45,160 Speaker 1: the words sex in the language of the statute without 85 00:05:45,240 --> 00:05:48,719 Speaker 1: also bearing in mind what that word meant to the 86 00:05:48,800 --> 00:05:52,000 Speaker 1: people who wrote it back in nineteen sixty four. And 87 00:05:52,080 --> 00:05:54,479 Speaker 1: it's pretty hard to argue with the idea that in 88 00:05:54,600 --> 00:05:58,240 Speaker 1: outlawing discrimination on the basis of sex, the Congress in 89 00:05:58,320 --> 00:06:01,839 Speaker 1: nineteen sixty four would have imagined that they were also 90 00:06:02,000 --> 00:06:06,919 Speaker 1: protecting gay people, lesbians, transgender people, and so forth. Just 91 00:06:07,040 --> 00:06:10,239 Speaker 1: as gorsus response that no, you know, sex is sex 92 00:06:10,279 --> 00:06:13,719 Speaker 1: and we have to interpret what it means today. To 93 00:06:13,880 --> 00:06:17,000 Speaker 1: go back in time and say, well, Congress couldn't have 94 00:06:17,040 --> 00:06:21,000 Speaker 1: imagined that is not really textualism. It's more a form 95 00:06:21,080 --> 00:06:24,279 Speaker 1: of originalism. It's like, what is the original intent of 96 00:06:24,360 --> 00:06:27,440 Speaker 1: this law? Who was it intended to protect and why? 97 00:06:27,600 --> 00:06:30,320 Speaker 1: So we're getting into the nitty gritty of some debates 98 00:06:30,360 --> 00:06:34,800 Speaker 1: between originalism and textualism, and I think Justice Alito's perspective 99 00:06:34,839 --> 00:06:39,960 Speaker 1: is more the originalist perspective. Secondly, I think, you know, 100 00:06:40,080 --> 00:06:44,400 Speaker 1: a lot of Justice Alito's arguments boils down to, in 101 00:06:44,440 --> 00:06:48,760 Speaker 1: a practical sense, come on, everybody here knows that this 102 00:06:48,839 --> 00:06:52,839 Speaker 1: is about people's sexual orientation and their gender identity. To 103 00:06:52,960 --> 00:06:56,599 Speaker 1: say it's a matter of sex discrimination is a sort 104 00:06:56,640 --> 00:07:01,320 Speaker 1: of formalism which is game playing with war words and semantics, 105 00:07:01,360 --> 00:07:04,600 Speaker 1: but is failing to confront what the real issue is here. 106 00:07:04,600 --> 00:07:07,640 Speaker 1: These are gay people, these are lesbians, these are transgender people. 107 00:07:08,000 --> 00:07:11,960 Speaker 1: They believe they have been discriminated as such, not on 108 00:07:12,000 --> 00:07:15,440 Speaker 1: the basis of their sex. And finally, I think, you know, 109 00:07:15,520 --> 00:07:19,240 Speaker 1: maybe just Alito just couldn't have imagined a decision like 110 00:07:19,400 --> 00:07:22,640 Speaker 1: this from a Republican colleague, from someone who is known 111 00:07:22,720 --> 00:07:25,280 Speaker 1: generally as a judicial conservative. So there may have been 112 00:07:25,320 --> 00:07:28,440 Speaker 1: just a sort of sense of betrayal here that something 113 00:07:28,640 --> 00:07:31,800 Speaker 1: just as Alito could not have imagined would happen. And 114 00:07:31,840 --> 00:07:35,920 Speaker 1: I think you're right his descent was impassioned and outraged, 115 00:07:36,080 --> 00:07:38,000 Speaker 1: and part of it is I think he sort of 116 00:07:38,000 --> 00:07:42,320 Speaker 1: felt betrayed. A lot of people are reading into the 117 00:07:42,360 --> 00:07:46,680 Speaker 1: fact that Chief Justice John Roberts assigned the writing of 118 00:07:46,680 --> 00:07:50,440 Speaker 1: this opinion to Gorsage. We all, so that's right. The 119 00:07:50,480 --> 00:07:53,960 Speaker 1: Chief Justice, when he's in the majority, controls the assignment 120 00:07:54,000 --> 00:07:57,840 Speaker 1: of the opinion. So let's assume for sake of argument. 121 00:07:57,880 --> 00:08:00,880 Speaker 1: Although we really don't know that Chief Justice Roberts, you know, 122 00:08:01,040 --> 00:08:03,680 Speaker 1: voted on this side from the beginning, he could have 123 00:08:03,720 --> 00:08:08,160 Speaker 1: assigned the opinion to, say Justice Ruth Bader Ginsburg, and 124 00:08:08,200 --> 00:08:10,200 Speaker 1: I think we would have gotten the same result that 125 00:08:10,280 --> 00:08:13,760 Speaker 1: a very different opinion this opinion from Justice Gore, such 126 00:08:13,800 --> 00:08:19,400 Speaker 1: as a landmark decision for the treatment of LGBT people 127 00:08:19,560 --> 00:08:22,920 Speaker 1: in employment law. That is different from saying it's a 128 00:08:23,000 --> 00:08:27,920 Speaker 1: sort of manifesto of LGBT equality or that it's a 129 00:08:28,120 --> 00:08:32,920 Speaker 1: roadmap for the future of the LGBT rights legal movement. 130 00:08:33,400 --> 00:08:37,000 Speaker 1: It doesn't stray beyond the narrow question of Title seven. 131 00:08:37,040 --> 00:08:39,160 Speaker 1: I think we would have gotten much different sort of 132 00:08:39,200 --> 00:08:43,079 Speaker 1: opinion with different words and also different music from one 133 00:08:43,080 --> 00:08:46,480 Speaker 1: of the courts. More liberal justices say, if Justice Ginsberg 134 00:08:46,520 --> 00:08:50,240 Speaker 1: had written this opinion, she wouldn't have taken the textualist approach. Probably, 135 00:08:50,280 --> 00:08:53,520 Speaker 1: So you know, there's some speculation the Chief Justice Roberts 136 00:08:53,559 --> 00:08:56,080 Speaker 1: gave it to Justice Gorsege because he knew that the 137 00:08:56,120 --> 00:09:00,440 Speaker 1: opinion would be yes, seismic in its immediate effect, but 138 00:09:00,640 --> 00:09:04,360 Speaker 1: also more narrow and limited in the way it might 139 00:09:04,440 --> 00:09:09,320 Speaker 1: be extended into other contexts. There's also some speculation that 140 00:09:09,559 --> 00:09:12,400 Speaker 1: Justice Roberts may have flipped his vote, that he may 141 00:09:12,400 --> 00:09:15,160 Speaker 1: have been on the other side of the issue. But 142 00:09:15,520 --> 00:09:17,880 Speaker 1: you know, couldn't write an opinion that could get Justice 143 00:09:17,920 --> 00:09:20,720 Speaker 1: gorseuchs vote. And you know, those are things we'll just 144 00:09:20,840 --> 00:09:24,520 Speaker 1: never know. Justice Gorsuch has gotten a lot of criticism 145 00:09:24,600 --> 00:09:28,640 Speaker 1: from conservatives about this opinion. Are they reading too much 146 00:09:28,720 --> 00:09:32,040 Speaker 1: into this decision, perhaps projecting that he'll side with the 147 00:09:32,120 --> 00:09:36,319 Speaker 1: liberals in future cases, for example, abortion cases. Well, I 148 00:09:36,320 --> 00:09:39,359 Speaker 1: I think I would actually frame it a bit differently. 149 00:09:39,760 --> 00:09:43,800 Speaker 1: I wouldn't say that this was necessarily an ideological deviation 150 00:09:44,000 --> 00:09:47,600 Speaker 1: for Justice. Course. Once again, Justice Gorseuch has a sort 151 00:09:47,640 --> 00:09:52,960 Speaker 1: of distinctive and pretty rigorous and doctrinaire actually approached to 152 00:09:53,520 --> 00:09:57,720 Speaker 1: reading and interpreting both statutes and constitutional texts. That's this 153 00:09:57,760 --> 00:10:03,559 Speaker 1: thing we've called to called textualism. Textualism doesn't guarantee conservative 154 00:10:03,559 --> 00:10:07,000 Speaker 1: results or liberal results, although it often is associated with 155 00:10:07,040 --> 00:10:11,359 Speaker 1: a more sort of conservative slow moving backward looking understanding 156 00:10:11,400 --> 00:10:15,040 Speaker 1: of the law. So no, I think Justice Corset would say, 157 00:10:15,080 --> 00:10:16,800 Speaker 1: and I think he'd probably be right that he's being 158 00:10:16,960 --> 00:10:20,480 Speaker 1: entirely principled. He was simply following where his method of 159 00:10:20,559 --> 00:10:23,720 Speaker 1: reading a statute led him, and it led him to 160 00:10:23,800 --> 00:10:27,120 Speaker 1: this result. By contrast, I am quite certain that his 161 00:10:27,240 --> 00:10:30,000 Speaker 1: same method of reading text would lead him to the 162 00:10:30,040 --> 00:10:33,480 Speaker 1: conclusion that roll versus way it was wrongly decided and 163 00:10:33,920 --> 00:10:38,079 Speaker 1: to more quote unquote conservative outcomes in lots of other areas. 164 00:10:38,120 --> 00:10:41,120 Speaker 1: But the people who say they're disappointed in this, I 165 00:10:41,160 --> 00:10:45,600 Speaker 1: think are missing the point of lifetime appointments for Supreme 166 00:10:45,600 --> 00:10:48,800 Speaker 1: Court justices and federal judges, and that is we expect 167 00:10:48,840 --> 00:10:52,920 Speaker 1: them to be independent. We expect them to apply sophisticated 168 00:10:53,000 --> 00:10:56,880 Speaker 1: legal analysis and legal judgment and not be looking over 169 00:10:56,920 --> 00:11:01,920 Speaker 1: their shoulder about the political consequences if their legal analysis 170 00:11:01,920 --> 00:11:05,720 Speaker 1: and legal judgment leads them to a conclusion that may 171 00:11:05,960 --> 00:11:10,800 Speaker 1: with some people be unpopular. Now, Justice course, it's said 172 00:11:11,040 --> 00:11:14,439 Speaker 1: that we don't preport to address bathrooms, locker rooms, or 173 00:11:14,480 --> 00:11:19,040 Speaker 1: anything of that kind. So is this limited to employment 174 00:11:19,120 --> 00:11:22,280 Speaker 1: situations to you know whether or not you can get fired, 175 00:11:22,720 --> 00:11:26,480 Speaker 1: or is there any room with this decision for lower 176 00:11:26,559 --> 00:11:32,360 Speaker 1: courts to expand it to other areas. It's certainly possible. 177 00:11:32,400 --> 00:11:35,800 Speaker 1: I mean, it is limited to to Title seven, which 178 00:11:35,840 --> 00:11:41,679 Speaker 1: governs the conditions of employment. UM, So it's not about 179 00:11:41,679 --> 00:11:45,120 Speaker 1: public accommodations, it's not about housing, it's not about education, 180 00:11:45,200 --> 00:11:47,680 Speaker 1: that kind of thing. But some of the reasoning in 181 00:11:47,679 --> 00:11:50,719 Speaker 1: the decision could be extended to those other areas to 182 00:11:51,280 --> 00:11:56,240 Speaker 1: federal laws that govern for example, education, Title nine, housing, 183 00:11:56,760 --> 00:12:02,120 Speaker 1: the Fair Housing Act. Those also uh forbid discrimination because 184 00:12:02,320 --> 00:12:05,360 Speaker 1: of or on the basis of sex. So it is 185 00:12:05,360 --> 00:12:09,720 Speaker 1: not uncommon for federal courts to take certain language and 186 00:12:09,760 --> 00:12:12,320 Speaker 1: the way it's been interpreted by the Supreme Court in 187 00:12:12,480 --> 00:12:15,960 Speaker 1: one area of the law and to import it into 188 00:12:16,080 --> 00:12:19,120 Speaker 1: other areas of the law. So this could potentially have 189 00:12:19,440 --> 00:12:22,559 Speaker 1: wide ranging impacts. I think as for the issue of 190 00:12:23,320 --> 00:12:27,880 Speaker 1: UM bathroom segregation and so forth, that's a related but 191 00:12:27,559 --> 00:12:32,600 Speaker 1: the distinctive question, UM, you know, is it is it 192 00:12:32,760 --> 00:12:38,600 Speaker 1: discriminating against a transgender person to say what bathroom they 193 00:12:38,679 --> 00:12:42,360 Speaker 1: must use? You may be in conflict with their sense 194 00:12:42,400 --> 00:12:46,080 Speaker 1: of their own gender identity. That is not necessarily the 195 00:12:46,160 --> 00:12:49,200 Speaker 1: same thing as saying you are taking an adverse employment 196 00:12:49,240 --> 00:12:53,040 Speaker 1: action against them because of their sex. But you know, again, 197 00:12:53,480 --> 00:12:56,320 Speaker 1: a sort of conservative approach to the law says, one 198 00:12:56,360 --> 00:13:00,199 Speaker 1: case at a time, this case presents one question. These 199 00:13:00,240 --> 00:13:03,200 Speaker 1: other questions will come to us possibly down the road, 200 00:13:03,640 --> 00:13:07,440 Speaker 1: and on the basis of full briefing and argument, we 201 00:13:07,559 --> 00:13:10,440 Speaker 1: will then figure out what the right result is in 202 00:13:10,480 --> 00:13:14,120 Speaker 1: those cases when they come to us. Some conservative Christian 203 00:13:14,200 --> 00:13:19,240 Speaker 1: organizations are saying their concern that this decision will affect 204 00:13:19,320 --> 00:13:23,440 Speaker 1: how they run their own institutions, many of which don't 205 00:13:23,440 --> 00:13:27,320 Speaker 1: allow LGBT people to work there. Will it have an 206 00:13:27,320 --> 00:13:32,360 Speaker 1: effect on those institutions. Well, if you're saying if by 207 00:13:32,440 --> 00:13:37,720 Speaker 1: institutions you mean churches, or or or or organizations that 208 00:13:37,760 --> 00:13:41,120 Speaker 1: are directly controlled by a church. No, there is already 209 00:13:41,200 --> 00:13:45,640 Speaker 1: something called the ministerial Exception to Title seven, which says, 210 00:13:45,760 --> 00:13:50,559 Speaker 1: for UH people who are engaged in religious ministry, they 211 00:13:50,600 --> 00:13:54,079 Speaker 1: have a First Amendment free exercise of religion right. And 212 00:13:54,320 --> 00:13:56,920 Speaker 1: so that's why Title seven can't be used to force 213 00:13:56,960 --> 00:14:00,520 Speaker 1: the Catholic Church to hire female priests. So so that 214 00:14:00,679 --> 00:14:03,439 Speaker 1: is well established. Now there's another case before the Supreme 215 00:14:03,480 --> 00:14:06,840 Speaker 1: Court this term that is grappling with how far that extends. 216 00:14:06,880 --> 00:14:10,640 Speaker 1: Who exactly counts as a religious minister and so forth. 217 00:14:10,679 --> 00:14:13,800 Speaker 1: But now, if you're talking about a business that just 218 00:14:13,880 --> 00:14:16,800 Speaker 1: happens to be owned by a person who has particular 219 00:14:16,880 --> 00:14:21,080 Speaker 1: religious views, um, then this decision does apply to them 220 00:14:21,160 --> 00:14:27,800 Speaker 1: until courts rule differently or find an exception for religious liberty. Um. 221 00:14:27,880 --> 00:14:32,360 Speaker 1: There there is no exemption in Title seven for people 222 00:14:33,000 --> 00:14:36,720 Speaker 1: for business owners just based on their religious beliefs. Um. 223 00:14:36,840 --> 00:14:39,640 Speaker 1: There is, however, a requirement, and this could be important 224 00:14:39,640 --> 00:14:42,400 Speaker 1: that Title seven only applies to employers that have more 225 00:14:42,440 --> 00:14:46,760 Speaker 1: than fifteen employees, and so truly small businesses with fewer 226 00:14:46,800 --> 00:14:50,200 Speaker 1: than fifteen people will not be affected by this decision. 227 00:14:50,800 --> 00:14:55,240 Speaker 1: Are we overestimating the impact of this decision for gay rights? 228 00:14:55,760 --> 00:14:59,280 Speaker 1: The decision will have a practical impact, and no doubt 229 00:14:59,360 --> 00:15:03,400 Speaker 1: will arm some people who have been fired or mistreated 230 00:15:03,400 --> 00:15:06,720 Speaker 1: in their jobs with legal tools they didn't previously have 231 00:15:07,280 --> 00:15:10,080 Speaker 1: to go into the federal e e O C or 232 00:15:10,120 --> 00:15:13,720 Speaker 1: to go to federal court to vindicate their rights. And 233 00:15:13,960 --> 00:15:15,640 Speaker 1: so yes, and in that way it does have a 234 00:15:15,720 --> 00:15:20,200 Speaker 1: practical importance. Um. But secondly, you know, perhaps more important 235 00:15:20,320 --> 00:15:23,520 Speaker 1: is the signaling effect of the law. This tells employers 236 00:15:23,800 --> 00:15:26,640 Speaker 1: who might have been thinking they could get away with 237 00:15:26,760 --> 00:15:29,560 Speaker 1: firing or refusing to hire somebody because of their sexual 238 00:15:29,560 --> 00:15:33,920 Speaker 1: orientation that they can. So hopefully that has a prophylactic 239 00:15:33,960 --> 00:15:39,120 Speaker 1: effect of avoiding discriminatory acts before they even occur. And 240 00:15:39,200 --> 00:15:43,520 Speaker 1: I think third, a decision like this inevitably sends signals 241 00:15:43,560 --> 00:15:47,480 Speaker 1: to the broader society and the broader culture about the 242 00:15:47,560 --> 00:15:50,840 Speaker 1: place of gay and lesbian and now transgender people in 243 00:15:50,920 --> 00:15:56,160 Speaker 1: American society. Thanks Steve that, Steve Sanders of Indiana University's 244 00:15:56,240 --> 00:16:00,600 Speaker 1: Moral School of Law. The Supreme corp has ruled that 245 00:16:00,680 --> 00:16:04,320 Speaker 1: the eight billion dollar Atlantic Coast Pipeline can cross under 246 00:16:04,320 --> 00:16:08,560 Speaker 1: the iconic Appalachian Trail, clearing a major legal obstacle that 247 00:16:08,600 --> 00:16:11,800 Speaker 1: could have derailed the pipeline. The Justice is ruled seven 248 00:16:11,880 --> 00:16:14,840 Speaker 1: to two that a lower court overstepped when it canceled 249 00:16:14,880 --> 00:16:18,400 Speaker 1: a critical permit. Joining me is environmental law professor pet 250 00:16:18,400 --> 00:16:22,000 Speaker 1: Parento of the Vermont Law School. How big a win 251 00:16:22,400 --> 00:16:27,120 Speaker 1: is this for energy companies fighting to expand pipelines and 252 00:16:27,280 --> 00:16:31,600 Speaker 1: fossil fueled use. Well, I mean it's one step. It's 253 00:16:31,640 --> 00:16:36,160 Speaker 1: not a big win. The Atlantic Coast Pipeline itself is 254 00:16:36,200 --> 00:16:40,400 Speaker 1: facing four different lawsuits or legal claims against it under 255 00:16:40,520 --> 00:16:44,680 Speaker 1: the Endangered Species Act. There's an environmental Justice claim against 256 00:16:44,760 --> 00:16:48,360 Speaker 1: one of the compressors that's needed. There's a NIPA Next 257 00:16:48,440 --> 00:16:51,360 Speaker 1: Environmental Policy Act case, so there's a bunch of hurdles 258 00:16:51,400 --> 00:16:55,480 Speaker 1: for this particular pipeline, but it certainly does eliminate what 259 00:16:55,600 --> 00:16:58,360 Speaker 1: could have been a real obstacle if the Supreme Court 260 00:16:58,360 --> 00:17:01,680 Speaker 1: had interpreted the Appalachian Trail to be solely within the 261 00:17:01,760 --> 00:17:04,880 Speaker 1: jurisdiction of the Park Service. There's a law that basically 262 00:17:04,960 --> 00:17:07,600 Speaker 1: since the Park Service, cannot grant a right of way 263 00:17:07,720 --> 00:17:09,879 Speaker 1: or an easement across the trail, So it could have 264 00:17:09,960 --> 00:17:13,600 Speaker 1: stopped the pipeline for sure. But now that that hurdle 265 00:17:13,640 --> 00:17:16,000 Speaker 1: has been cleared, there's still a long way to go 266 00:17:16,119 --> 00:17:19,080 Speaker 1: for this pipeline and many others. The issue was, as 267 00:17:19,160 --> 00:17:23,159 Speaker 1: you mentioned, the intersection of several federal agencies and the 268 00:17:23,280 --> 00:17:28,159 Speaker 1: definition of land. Explain those issues and how the Court 269 00:17:28,480 --> 00:17:31,840 Speaker 1: decided them. So it was the seven to two decisions, 270 00:17:31,880 --> 00:17:35,200 Speaker 1: so that was pretty decisive, And what the Court basically 271 00:17:35,240 --> 00:17:38,399 Speaker 1: said is that a trail is an easement. The Appalachian 272 00:17:38,440 --> 00:17:42,119 Speaker 1: Trail itself is not land. The trail is on land 273 00:17:42,280 --> 00:17:45,840 Speaker 1: that's managed by the U. S. Forest Service, so it's 274 00:17:45,840 --> 00:17:50,880 Speaker 1: federally owned land, and the Court sort of parsed all 275 00:17:50,880 --> 00:17:54,720 Speaker 1: of these different statutes to say that the trail isn't land. 276 00:17:54,960 --> 00:17:56,680 Speaker 1: You know, it's a right of way, it's an easement. 277 00:17:56,760 --> 00:17:59,199 Speaker 1: It allows people to cross the land, but it's not 278 00:17:59,280 --> 00:18:01,680 Speaker 1: the land that out. You know. That's kind of a 279 00:18:01,680 --> 00:18:06,480 Speaker 1: technical but sort of common way in which courts sometimes 280 00:18:06,560 --> 00:18:10,959 Speaker 1: parse the language of statutes and justice so to Mayor 281 00:18:11,200 --> 00:18:14,800 Speaker 1: in her descent said, I don't understand how a trail 282 00:18:14,880 --> 00:18:17,000 Speaker 1: can't be land. I mean, you have to walk on 283 00:18:17,119 --> 00:18:20,359 Speaker 1: the land and harder to use the trail. And in 284 00:18:20,480 --> 00:18:24,120 Speaker 1: order for the Park Service to administer the trail, which 285 00:18:24,119 --> 00:18:26,919 Speaker 1: it clearly has the authority to do, it needs to 286 00:18:26,960 --> 00:18:30,119 Speaker 1: be able to control what's going on on the land. 287 00:18:30,560 --> 00:18:34,520 Speaker 1: But in any event, it's a classic kind of statutory 288 00:18:34,640 --> 00:18:41,480 Speaker 1: interpretation where there's potentially conflicting statutes at work, certainly not 289 00:18:41,920 --> 00:18:46,000 Speaker 1: seamlessly written so that they make clear sense. And the 290 00:18:46,040 --> 00:18:48,639 Speaker 1: court just came down saying, in this particular case, we 291 00:18:48,760 --> 00:18:51,800 Speaker 1: think the Forest Service is the right agency to grant 292 00:18:51,800 --> 00:18:55,920 Speaker 1: the right away. Justice Clarence Thomas wrote the majority opinion, 293 00:18:55,960 --> 00:19:00,560 Speaker 1: and he said, quote, sometimes a complicated regulatory scheme may 294 00:19:00,640 --> 00:19:03,320 Speaker 1: cause us to miss the forest for the trees, but 295 00:19:03,400 --> 00:19:06,800 Speaker 1: at bottom, these cases boiled down to a simple proposition. 296 00:19:07,280 --> 00:19:11,160 Speaker 1: A trail is a trail and land is land. Unwind 297 00:19:11,240 --> 00:19:15,000 Speaker 1: that for me, Well, I mean he's trying to, you know, 298 00:19:15,240 --> 00:19:20,080 Speaker 1: simplify the case, uh by saying these are two different things, 299 00:19:20,200 --> 00:19:24,480 Speaker 1: or at least legally there are two different things. A trail, 300 00:19:24,800 --> 00:19:26,480 Speaker 1: you know, like I said, is it's a it's a 301 00:19:26,600 --> 00:19:29,600 Speaker 1: right of way, it's a right of passage. Um, it's 302 00:19:29,640 --> 00:19:33,399 Speaker 1: an easement. It's only the right to use, not occupy. 303 00:19:33,600 --> 00:19:36,720 Speaker 1: He made that point. Land is something that has to 304 00:19:36,760 --> 00:19:41,400 Speaker 1: be occupied possessed, whereas a trail is just something you use, 305 00:19:42,359 --> 00:19:46,040 Speaker 1: um by permission. Um. And then so he said, it's 306 00:19:46,040 --> 00:19:48,840 Speaker 1: not like land in that sense, it's just the right 307 00:19:49,240 --> 00:19:52,400 Speaker 1: to cross the land. Sort of my orange the sense 308 00:19:52,440 --> 00:19:55,800 Speaker 1: that I think it's equally simple. Um. You know, there's 309 00:19:55,840 --> 00:20:00,000 Speaker 1: a definition of um. There's another law that that says 310 00:20:00,040 --> 00:20:03,600 Speaker 1: that this trail is part it's a unit of the 311 00:20:03,720 --> 00:20:07,479 Speaker 1: National Park System, and the Act that governs the National 312 00:20:07,520 --> 00:20:11,280 Speaker 1: Park System definds unit to mean any land on which 313 00:20:11,320 --> 00:20:15,280 Speaker 1: the trail is located. So so Mayor did the same 314 00:20:15,320 --> 00:20:17,520 Speaker 1: thing as Justice Thomas said. I think the I think 315 00:20:17,560 --> 00:20:22,000 Speaker 1: the answer is straightforward here as well. A trailers land. 316 00:20:22,040 --> 00:20:25,520 Speaker 1: It's it's a path worn in the land, so it's land. 317 00:20:26,960 --> 00:20:30,120 Speaker 1: That was the difference between the majority, which I said 318 00:20:30,200 --> 00:20:32,960 Speaker 1: is seven members of the court agreed with Thomas or 319 00:20:33,040 --> 00:20:35,560 Speaker 1: six agreed with Thomas. So you know it was not 320 00:20:35,760 --> 00:20:38,520 Speaker 1: a close call. Frankly, it was. It was pretty decisive. 321 00:20:38,800 --> 00:20:40,879 Speaker 1: Did they bring out the dictionary for this one? They 322 00:20:40,960 --> 00:20:43,160 Speaker 1: used to bring out the dictionary a lot. I haven't 323 00:20:43,200 --> 00:20:47,480 Speaker 1: seen it this term, but especially I mean, yeah, that's 324 00:20:47,480 --> 00:20:51,359 Speaker 1: a famous technical justice school of the textualists and Justice 325 00:20:51,400 --> 00:20:55,320 Speaker 1: Corset's recently in the Title seven case, that was another 326 00:20:55,400 --> 00:20:58,320 Speaker 1: situation where you were looking at plain meaning and so forth. 327 00:20:58,640 --> 00:21:01,919 Speaker 1: But in the pipeline, Justice Thomas didn't think it was 328 00:21:02,000 --> 00:21:06,680 Speaker 1: necessary to to consult any particular dictionary. Dooke Energy said 329 00:21:06,720 --> 00:21:09,600 Speaker 1: in a statement, Today's decision is an affirmation for the 330 00:21:09,600 --> 00:21:12,840 Speaker 1: Atlantic Coast Pipeline and communities across our region that are 331 00:21:12,880 --> 00:21:17,199 Speaker 1: depending on it for jobs, economic growth and clean energy. 332 00:21:17,240 --> 00:21:21,320 Speaker 1: Is that clean energy for real? Now? Well clean has 333 00:21:21,359 --> 00:21:25,199 Speaker 1: to be put in air quotes. You might say relatively 334 00:21:25,280 --> 00:21:29,920 Speaker 1: clean compared to coal perhaps, um, which I mean coal 335 00:21:30,040 --> 00:21:33,000 Speaker 1: is is clearly from an environmental standpoint, in a public 336 00:21:33,000 --> 00:21:36,200 Speaker 1: health standpoint, um one of the worst sources of energy 337 00:21:36,359 --> 00:21:39,119 Speaker 1: on the planet, um in terms of day to day 338 00:21:39,200 --> 00:21:43,240 Speaker 1: impacts on people, their health and the equality of life. 339 00:21:43,400 --> 00:21:46,080 Speaker 1: I mean, coal plants are the worst for sure. So 340 00:21:46,200 --> 00:21:48,679 Speaker 1: I guess you'd say that gas providing gas as an 341 00:21:48,680 --> 00:21:51,000 Speaker 1: alternative to coals. If you look at it that way, 342 00:21:51,400 --> 00:21:54,920 Speaker 1: it's cleaner. It's not clean in the climate sense because 343 00:21:54,920 --> 00:21:59,080 Speaker 1: it's a fossil fuel. I mean, gas is methane. Of 344 00:21:59,160 --> 00:22:02,480 Speaker 1: natural gas is methane. So you can talk about this 345 00:22:02,520 --> 00:22:04,640 Speaker 1: as a gas pipeline, or you could also say it's 346 00:22:04,640 --> 00:22:08,600 Speaker 1: a methane pipeline. Um. And when we know from all 347 00:22:08,640 --> 00:22:13,240 Speaker 1: the climate science that we're getting that we can't keep mining, developing, 348 00:22:13,359 --> 00:22:16,720 Speaker 1: burning gas anymore than we could coal, we've got a 349 00:22:16,800 --> 00:22:21,399 Speaker 1: completely transition away from fossil field. So in that sense, 350 00:22:22,000 --> 00:22:26,399 Speaker 1: gas pipelines are not clean. Their infrastructure for fuels that 351 00:22:26,520 --> 00:22:31,120 Speaker 1: are driving u the climate emergency, as some people would 352 00:22:31,119 --> 00:22:34,200 Speaker 1: call it. I want to ask you about another aspect 353 00:22:34,200 --> 00:22:39,520 Speaker 1: of this. Natural Resources Defense Counsel attorney Jillian Giannetti said 354 00:22:39,760 --> 00:22:44,080 Speaker 1: that this is an affront to environmental justice and that 355 00:22:44,280 --> 00:22:49,919 Speaker 1: disproportionately we build infrastructure in poor communities and communities of color, 356 00:22:50,200 --> 00:22:52,880 Speaker 1: and ask them to shoulder the burden. Do you see 357 00:22:52,920 --> 00:22:57,000 Speaker 1: that as a fact as well? Well, that specific references 358 00:22:57,040 --> 00:23:00,199 Speaker 1: to the compressor station, and these compressor stations are like 359 00:23:00,320 --> 00:23:04,600 Speaker 1: large buildings. These are major facilities, and they release all 360 00:23:04,680 --> 00:23:09,000 Speaker 1: kinds of volatile or organic compounds which are pollutants of course, 361 00:23:09,520 --> 00:23:15,760 Speaker 1: which caused terrible respiratory effects asthma and other respiratory problems. 362 00:23:15,840 --> 00:23:19,240 Speaker 1: And for this pipeline, they have proposed to put this 363 00:23:19,320 --> 00:23:23,760 Speaker 1: compressor station in a black community that is already living 364 00:23:23,800 --> 00:23:28,560 Speaker 1: with multiple other industrial facilities. It's a typical situation in America. 365 00:23:28,720 --> 00:23:32,320 Speaker 1: It's all part of whether you call an implicit bias 366 00:23:32,480 --> 00:23:36,560 Speaker 1: or outright racism, it's all part of an institutional system, 367 00:23:36,600 --> 00:23:40,879 Speaker 1: including environmental law, including the laws that permit facilities like 368 00:23:40,960 --> 00:23:45,840 Speaker 1: this that have disproportionate impact on communities of color, so 369 00:23:45,920 --> 00:23:50,400 Speaker 1: called frontline communities. So yeah, I mean she's right that, 370 00:23:50,720 --> 00:23:53,639 Speaker 1: you know, the poorer communities, the communities of color, are 371 00:23:53,680 --> 00:23:57,439 Speaker 1: the ones that gets saddled with these industrial facilities that 372 00:23:57,480 --> 00:24:01,480 Speaker 1: nobody else wants in their backyard. To a large degree, 373 00:24:02,520 --> 00:24:07,960 Speaker 1: is responsible for the fact that these communities are also 374 00:24:08,280 --> 00:24:11,960 Speaker 1: more vulnerable to things like the COVID outbreak, you know, 375 00:24:12,040 --> 00:24:15,760 Speaker 1: the Yale study that was issued recently found that black 376 00:24:15,880 --> 00:24:21,080 Speaker 1: communities are suffering three point five times the rate of 377 00:24:21,440 --> 00:24:26,200 Speaker 1: COVID infections and death as white community. So it's not hypothetical, 378 00:24:26,280 --> 00:24:30,080 Speaker 1: it's real, and our laws and our permitting processes are 379 00:24:30,119 --> 00:24:33,240 Speaker 1: not taking those into account. And the fourth Circuit reversed 380 00:24:33,440 --> 00:24:37,840 Speaker 1: the decision to put this particular compressor in this black community. 381 00:24:37,840 --> 00:24:41,280 Speaker 1: Now it's temporary, it's another one of these remand to 382 00:24:41,359 --> 00:24:45,480 Speaker 1: the agency decisions, but it does illustrate the problem. Does 383 00:24:45,520 --> 00:24:50,840 Speaker 1: this decision have repercussions beyond this situation, you know, the 384 00:24:50,880 --> 00:24:56,040 Speaker 1: Forest Service versus the National Park Service. This particular decision, 385 00:24:56,080 --> 00:25:02,520 Speaker 1: in this particular case, UM is specific to the fact 386 00:25:02,560 --> 00:25:06,760 Speaker 1: that the Appalachian Trail was crossing the U. S. Forest 387 00:25:06,800 --> 00:25:12,200 Speaker 1: Service land. There are something like fifty different pipeline crossings 388 00:25:12,520 --> 00:25:15,080 Speaker 1: of the Appalachian Trail. You know, understand it's two thousand 389 00:25:15,080 --> 00:25:18,880 Speaker 1: miles long, so um, but those are crossings that are 390 00:25:18,920 --> 00:25:22,360 Speaker 1: on private land. So far, there aren't a whole lot 391 00:25:22,359 --> 00:25:27,440 Speaker 1: of pipeline cases involving crossings of several lands. Now, if 392 00:25:27,480 --> 00:25:31,800 Speaker 1: you broaden the question to transmission lines, and if you 393 00:25:31,840 --> 00:25:36,879 Speaker 1: look across the United States, that where the transmission lines 394 00:25:36,880 --> 00:25:39,000 Speaker 1: that exist today and the ones that we're going to 395 00:25:39,040 --> 00:25:42,679 Speaker 1: be needing in the future are gonna go. Then you 396 00:25:42,760 --> 00:25:47,680 Speaker 1: start to see more conflicts between transmission lines and the 397 00:25:47,800 --> 00:25:51,160 Speaker 1: national trail system, which is all through the United States. 398 00:25:51,359 --> 00:25:54,200 Speaker 1: And so it's gonna be interesting to see how that 399 00:25:54,240 --> 00:25:57,680 Speaker 1: plays out going forward, because of course a lot of 400 00:25:57,720 --> 00:26:00,359 Speaker 1: those transmission lines also have to be light it's been 401 00:26:00,440 --> 00:26:04,760 Speaker 1: permitted um and whether or not there's there's going to 402 00:26:04,840 --> 00:26:09,240 Speaker 1: be further litigation over who has the authority to approve 403 00:26:09,280 --> 00:26:12,600 Speaker 1: those transmission lines when they cross trails that may be 404 00:26:12,720 --> 00:26:15,679 Speaker 1: on federal land. Those are questions down the road now, 405 00:26:16,080 --> 00:26:21,439 Speaker 1: but this decision probably signals that trying to block either 406 00:26:21,520 --> 00:26:26,720 Speaker 1: pipelines or transmission lines using this technique of saying well 407 00:26:26,760 --> 00:26:30,000 Speaker 1: only the Park Service as the authority, that's probably not 408 00:26:30,119 --> 00:26:33,359 Speaker 1: gonna work. This doesn't mean the developers can begin work 409 00:26:33,440 --> 00:26:36,719 Speaker 1: on the pipeline. What are some of the other hurdles 410 00:26:36,760 --> 00:26:42,080 Speaker 1: that environmentalists are putting ahead of them, Well, this pipeline 411 00:26:42,080 --> 00:26:45,560 Speaker 1: will also because this is a six mile The Atlantic 412 00:26:45,600 --> 00:26:48,200 Speaker 1: Coast pipeline is six hundred miles long, so it needs 413 00:26:48,200 --> 00:26:51,160 Speaker 1: wetlands permits under the Clean Water Act. From the core 414 00:26:51,200 --> 00:26:56,040 Speaker 1: of Engineers. It needs the states through which the pipeline goes. 415 00:26:56,480 --> 00:26:59,720 Speaker 1: They need to certify that any federal permit, like the 416 00:26:59,760 --> 00:27:03,040 Speaker 1: Core of Engineers permit, is in full compliance with state 417 00:27:03,080 --> 00:27:08,480 Speaker 1: water quality laws and standards. Some states, New York, California, Oregon, 418 00:27:08,560 --> 00:27:13,080 Speaker 1: Washington have been using that clean Water authority to block 419 00:27:13,400 --> 00:27:18,320 Speaker 1: pipelines and other fossil fuel infrastructure coal terminals, for example, 420 00:27:18,359 --> 00:27:21,800 Speaker 1: in the state of Washington. That's a big controversy. The 421 00:27:21,840 --> 00:27:25,639 Speaker 1: Trump administration is proposing to limit the authority of states 422 00:27:25,680 --> 00:27:29,080 Speaker 1: to do that to block these kinds of projects citing 423 00:27:29,160 --> 00:27:34,440 Speaker 1: water quality concerns. There's endangered species impacts in the Atlantic 424 00:27:34,440 --> 00:27:38,919 Speaker 1: Coast pipeline and other pipelines like Keystone XL and that 425 00:27:39,320 --> 00:27:43,879 Speaker 1: implicates the Federal Endangered Species Act, and that requires both, 426 00:27:44,080 --> 00:27:48,080 Speaker 1: you know, a biological opinion that says that the pipeline 427 00:27:48,119 --> 00:27:51,800 Speaker 1: will not jeopardize any of these species, but also requires 428 00:27:51,840 --> 00:27:56,680 Speaker 1: what's called an incidental take permit to allow a pipeline 429 00:27:56,720 --> 00:27:59,240 Speaker 1: that might have some impact on the species even though 430 00:27:59,240 --> 00:28:03,040 Speaker 1: it doesn't jeopard guys them. So lots of federal laws 431 00:28:03,440 --> 00:28:08,160 Speaker 1: involved in these cases, lots of litigation over how those 432 00:28:08,200 --> 00:28:12,240 Speaker 1: federal laws are being implemented. And you know, we're still 433 00:28:12,320 --> 00:28:15,720 Speaker 1: quite a ways from seeing any final resolution of a 434 00:28:15,800 --> 00:28:18,560 Speaker 1: number of these cases. So now I want to turn 435 00:28:18,600 --> 00:28:23,720 Speaker 1: to another pipeline issue. The Trump administration is calling on 436 00:28:23,760 --> 00:28:27,920 Speaker 1: the Supreme Court to freeze a Keystone Excel ruling that 437 00:28:28,040 --> 00:28:32,000 Speaker 1: has stunted the permitting for oil and gas pipelines. Tell 438 00:28:32,080 --> 00:28:35,639 Speaker 1: us what the Trump administration wants here and why they're involved. 439 00:28:36,640 --> 00:28:40,720 Speaker 1: So this was a decision by Judge Morris in Montana 440 00:28:41,640 --> 00:28:48,160 Speaker 1: that overturned what's called a nationwide permit for pipeline construction. 441 00:28:48,760 --> 00:28:52,880 Speaker 1: And the Corps of Engineers has adopted these nationwide permits, 442 00:28:52,960 --> 00:28:57,680 Speaker 1: this one is called number twelve, to facilitate the review 443 00:28:58,040 --> 00:29:03,000 Speaker 1: and permitting of these law long linear pipeline type projects. 444 00:29:03,720 --> 00:29:09,600 Speaker 1: And um, it's a very truncated kind of process of evaluation. 445 00:29:09,640 --> 00:29:14,000 Speaker 1: They don't do an environmental impact statement. These permits are 446 00:29:14,040 --> 00:29:17,960 Speaker 1: actually grants of authority. So long as you comply with 447 00:29:18,040 --> 00:29:21,080 Speaker 1: the conditions that have been published for these permits, you 448 00:29:21,120 --> 00:29:24,800 Speaker 1: don't even have to go through an individual permit process. 449 00:29:24,880 --> 00:29:27,960 Speaker 1: So it's a it's a very quick way of getting 450 00:29:27,960 --> 00:29:32,360 Speaker 1: approval to lay down these pipelines. Judge Morris said, yeah, 451 00:29:32,360 --> 00:29:36,760 Speaker 1: but when you adopted this nationwide permit. You didn't consult 452 00:29:37,440 --> 00:29:40,200 Speaker 1: with the Fish and Wildlife Service on all the impacts 453 00:29:40,280 --> 00:29:43,280 Speaker 1: that you're going to have on endangered species as you 454 00:29:43,320 --> 00:29:47,440 Speaker 1: are building the Keystone pipeline and other pipelines. And so 455 00:29:47,560 --> 00:29:51,080 Speaker 1: he overturned the firm. He said it's illegal. And when 456 00:29:51,120 --> 00:29:54,320 Speaker 1: he did that, he said, because the permits illegal, I'm 457 00:29:54,320 --> 00:29:58,120 Speaker 1: going to enjoin. Initially, he said, this all the construction 458 00:29:58,160 --> 00:30:01,640 Speaker 1: in the country under this aationwide permit, none, none of 459 00:30:01,680 --> 00:30:05,640 Speaker 1: its legal. The Corps of Engineers went back into court 460 00:30:05,760 --> 00:30:08,720 Speaker 1: and asked him to modify it to limit it to 461 00:30:08,880 --> 00:30:13,680 Speaker 1: only major pipelines, because this permit covers lots of difference activity. 462 00:30:14,200 --> 00:30:16,720 Speaker 1: And so he did do that, but he's still put 463 00:30:16,800 --> 00:30:21,280 Speaker 1: in place an injunction against any pipeline construction in the 464 00:30:21,320 --> 00:30:26,000 Speaker 1: country that's relying on this nationwide permit. Twelve. That's the 465 00:30:26,160 --> 00:30:30,080 Speaker 1: issue that the Trump administration has taken to the Supreme Court. 466 00:30:30,520 --> 00:30:34,760 Speaker 1: Justice Kagan is assigned to oversee the Ninth Circuit any 467 00:30:34,800 --> 00:30:38,120 Speaker 1: of the cases that arise in the Ninth Circuit. Because 468 00:30:38,160 --> 00:30:42,320 Speaker 1: Montana is in the Ninth Circuit, she's the justice that 469 00:30:42,400 --> 00:30:45,800 Speaker 1: has the authority to issue what's called a stay of 470 00:30:45,920 --> 00:30:50,960 Speaker 1: judge Morris's order if she feels it's necessary to do so. 471 00:30:51,560 --> 00:30:54,360 Speaker 1: She has now ordered the parties that is, the people 472 00:30:54,400 --> 00:30:58,560 Speaker 1: opposing the pipeline and the government and the pipeline company 473 00:30:58,920 --> 00:31:01,640 Speaker 1: to submit briefs by the end of the month, so 474 00:31:01,760 --> 00:31:04,360 Speaker 1: she's put it on a very fast track to decide 475 00:31:04,720 --> 00:31:10,720 Speaker 1: will she live Judge Morris's nationwide injunction or maybe modify 476 00:31:10,840 --> 00:31:13,680 Speaker 1: it to say, well, I can leave it in place 477 00:31:14,080 --> 00:31:17,120 Speaker 1: for the Keystone pipeline, but I'm not going to allow 478 00:31:17,160 --> 00:31:21,120 Speaker 1: it to block all other pipeline constructions. So we're gonna 479 00:31:21,120 --> 00:31:24,520 Speaker 1: have to wait to see whether she wants to lift 480 00:31:24,800 --> 00:31:27,560 Speaker 1: to stay in part or in hole, or leave it 481 00:31:27,600 --> 00:31:30,840 Speaker 1: in place until the case has been argued in the 482 00:31:30,960 --> 00:31:34,080 Speaker 1: Ninth Circuit and then ultimately, I suppose it will come 483 00:31:34,120 --> 00:31:36,720 Speaker 1: back to the U. S. Supreme Court after that. Thanks 484 00:31:36,720 --> 00:31:39,800 Speaker 1: for being on Bloomberg Law. Pat. That's Pat Parento of 485 00:31:39,880 --> 00:31:42,479 Speaker 1: the Vermont Law School, and that's it for the position 486 00:31:42,520 --> 00:31:46,000 Speaker 1: of Bloomberg Law. Remember to subscribe to our Bloomberg Law 487 00:31:46,080 --> 00:31:50,080 Speaker 1: podcast for the latest legal news. I'm June Blosso thanks 488 00:31:50,080 --> 00:31:52,719 Speaker 1: for listening, and remember to change to the Bloomberg Law 489 00:31:52,760 --> 00:31:55,800 Speaker 1: Show weeknights at TIMS at Easter right here on Bloomberg 490 00:31:55,920 --> 00:31:56,200 Speaker 1: Radio