Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: It's a watershed moment for gay rights, as the Supreme
Speaker 1: Court ruled in a landmark case on Monday that federal
Speaker 1: law protects gay and transgender workers from job discrimination, giving
Speaker 1: millions of LGBT people in dozens of states civil rights
Speaker 1: they'd sought for decades. Gerald Bostock was one of the plaintiffs.
Speaker 1: I'm overwhelmed with joy and mccarts filled with with gratitude.
Speaker 1: It was a six to three decision, with Chief Justice
Speaker 1: John Roberts and Justice Neil Gorsuch joining the courts for
Speaker 1: liberals in the majority. One of the biggest surprises was
Speaker 1: that the majority opinion was written by conservative Justice Gorsuch,
Speaker 1: although perhaps there was a hint during the oral arguments
Speaker 1: that he would interpret the words sex entitle seven to
Speaker 1: cover sexual orientation and gender identity. Let's do truth, okay,
Speaker 1: wouldn't Wouldn't the employer maybe say it's because this was
Speaker 1: this person was a man who liked other men, and
Speaker 1: isn't that first part sex. My guest is Steve Sanders,
Speaker 1: professor at Indiana University's Moral School of Law. So Steve
Speaker 1: explained why this is a landmark decision. It's landmark for
Speaker 1: a number of reasons to First of all, it's the
Speaker 1: first time the U. S. Supreme Court has delivered a
Speaker 1: major gay and lesbian and transgender rights decision that was
Speaker 1: based on the interpretation of a federal statute, something passed
Speaker 1: by Congress, as opposed to a constitutional decision. Constitutional language allows,
Speaker 1: you know, for broader discussions of concepts like dignity and
Speaker 1: evolving social understandings. State story interpretation is more limited. Yet
Speaker 1: Justice Gorset found a way through his method of interpretation
Speaker 1: to say that in existing law dating back to n
Speaker 1: on sex to sscrimination also encompasses discrimination against gay's, lesbians, bisexuals,
Speaker 1: and transgender people. It's also landmark because this extends federal
Speaker 1: law to protect employment. In all fifty states, there has
Speaker 1: been no federal law expressly addressing sexual orientation or transgender discrimination.
Speaker 1: Only twenty one states have such laws on the books,
Speaker 1: and so it's significant because it extends the reach of
Speaker 1: federal protections for gay's, lesbians, and transgender people in a
Speaker 1: significant way. And finally, the third way in which it's
Speaker 1: landmark is the author, you know, a textualist Donald Trump
Speaker 1: appointee to the Supreme Court, who delivered an opinion that
Speaker 1: I think many people would not have expected. And if
Speaker 1: it doesn't, you know, scramble our ideas and preconceptions about
Speaker 1: what it means to be a democratically appointed justice versus
Speaker 1: a Republican appointed justice. At least it shows that those
Speaker 1: debates can be limited and often constrained. Justice Course, It's said,
Speaker 1: only the written word is the law, and all persons
Speaker 1: are entitled to its benefit. Did he really stick to
Speaker 1: textualism in his opinion? Well, so this is a debate
Speaker 1: that I think will continue to rage in law reviews
Speaker 1: and scholarly discourse and so forth for a while. You know,
Speaker 1: what does it mean to do textualist analysis? Here's what
Speaker 1: Justice Course has said. Justice Course had said, Congress in
Speaker 1: four issued a very broad mandate that employers may not
Speaker 1: discriminate because of sex. The critical assumption that he makes,
Speaker 1: or the central argument that he makes, is that when
Speaker 1: you are considering a person's sexual orientation or you're considering
Speaker 1: their gender identity, you are invariably thinking about their sex.
Speaker 1: And if you take act and against them the disadvantagism
Speaker 1: you fire them, you refuse to promote them, and so forth,
Speaker 1: you were taking into account their sex. A simple example,
Speaker 1: you have an employee who's a man who wants to
Speaker 1: date a woman, find the employer has no problem with that.
Speaker 1: You have a female employee who wants to date a woman,
Speaker 1: and the employer does have a problem with that. The
Speaker 1: employer has taken account of the employee sex. The employer
Speaker 1: is basically saying, I believe that women should date men,
Speaker 1: but that women should not date women. They are discriminating
Speaker 1: against the person based on what sex they belong to.
Speaker 1: And Similarly, if you discriminate against a person who now
Speaker 1: presents to the world as female, but whose birth certificate
Speaker 1: says they are male, and you take action against that person,
Speaker 1: yet you don't take action against a person who is
Speaker 1: male and whose birth certificate also says male, you were
Speaker 1: taking into account their sex. That the critical assumption here
Speaker 1: is that the text of the statute says sex, and
Speaker 1: that when you discriminate against people because they're gay, lesbian,
Speaker 1: or transgender, as part of that decision, you are inevitably
Speaker 1: making some judgment about proper behavior for a member of
Speaker 1: their sex. Justice Samuel Alito's descent was stinging he said,
Speaker 1: the arrogance of Gorsuch's argument is breathtaking. What problem did
Speaker 1: he have with the writing of gore such as opinion? Well, again,
Speaker 1: from a technical standpoint, I think part of it gets
Speaker 1: to what does it mean to be a textualist, And
Speaker 1: different academics and different justices may disagree on that. But
Speaker 1: what Justice Alito is saying is you can't think about
Speaker 1: the words sex in the language of the statute without
Speaker 1: also bearing in mind what that word meant to the
Speaker 1: people who wrote it back in nineteen sixty four. And
Speaker 1: it's pretty hard to argue with the idea that in
Speaker 1: outlawing discrimination on the basis of sex, the Congress in
Speaker 1: nineteen sixty four would have imagined that they were also
Speaker 1: protecting gay people, lesbians, transgender people, and so forth. Just
Speaker 1: as gorsus response that no, you know, sex is sex
Speaker 1: and we have to interpret what it means today. To
Speaker 1: go back in time and say, well, Congress couldn't have
Speaker 1: imagined that is not really textualism. It's more a form
Speaker 1: of originalism. It's like, what is the original intent of
Speaker 1: this law? Who was it intended to protect and why?
Speaker 1: So we're getting into the nitty gritty of some debates
Speaker 1: between originalism and textualism, and I think Justice Alito's perspective
Speaker 1: is more the originalist perspective. Secondly, I think, you know,
Speaker 1: a lot of Justice Alito's arguments boils down to, in
Speaker 1: a practical sense, come on, everybody here knows that this
Speaker 1: is about people's sexual orientation and their gender identity. To
Speaker 1: say it's a matter of sex discrimination is a sort
Speaker 1: of formalism which is game playing with war words and semantics,
Speaker 1: but is failing to confront what the real issue is here.
Speaker 1: These are gay people, these are lesbians, these are transgender people.
Speaker 1: They believe they have been discriminated as such, not on
Speaker 1: the basis of their sex. And finally, I think, you know,
Speaker 1: maybe just Alito just couldn't have imagined a decision like
Speaker 1: this from a Republican colleague, from someone who is known
Speaker 1: generally as a judicial conservative. So there may have been
Speaker 1: just a sort of sense of betrayal here that something
Speaker 1: just as Alito could not have imagined would happen. And
Speaker 1: I think you're right his descent was impassioned and outraged,
Speaker 1: and part of it is I think he sort of
Speaker 1: felt betrayed. A lot of people are reading into the
Speaker 1: fact that Chief Justice John Roberts assigned the writing of
Speaker 1: this opinion to Gorsage. We all, so that's right. The
Speaker 1: Chief Justice, when he's in the majority, controls the assignment
Speaker 1: of the opinion. So let's assume for sake of argument.
Speaker 1: Although we really don't know that Chief Justice Roberts, you know,
Speaker 1: voted on this side from the beginning, he could have
Speaker 1: assigned the opinion to, say Justice Ruth Bader Ginsburg, and
Speaker 1: I think we would have gotten the same result that
Speaker 1: a very different opinion this opinion from Justice Gore, such
Speaker 1: as a landmark decision for the treatment of LGBT people
Speaker 1: in employment law. That is different from saying it's a
Speaker 1: sort of manifesto of LGBT equality or that it's a
Speaker 1: roadmap for the future of the LGBT rights legal movement.
Speaker 1: It doesn't stray beyond the narrow question of Title seven.
Speaker 1: I think we would have gotten much different sort of
Speaker 1: opinion with different words and also different music from one
Speaker 1: of the courts. More liberal justices say, if Justice Ginsberg
Speaker 1: had written this opinion, she wouldn't have taken the textualist approach. Probably,
Speaker 1: So you know, there's some speculation the Chief Justice Roberts
Speaker 1: gave it to Justice Gorsege because he knew that the
Speaker 1: opinion would be yes, seismic in its immediate effect, but
Speaker 1: also more narrow and limited in the way it might
Speaker 1: be extended into other contexts. There's also some speculation that
Speaker 1: Justice Roberts may have flipped his vote, that he may
Speaker 1: have been on the other side of the issue. But
Speaker 1: you know, couldn't write an opinion that could get Justice
Speaker 1: gorseuchs vote. And you know, those are things we'll just
Speaker 1: never know. Justice Gorsuch has gotten a lot of criticism
Speaker 1: from conservatives about this opinion. Are they reading too much
Speaker 1: into this decision, perhaps projecting that he'll side with the
Speaker 1: liberals in future cases, for example, abortion cases. Well, I
Speaker 1: I think I would actually frame it a bit differently.
Speaker 1: I wouldn't say that this was necessarily an ideological deviation
Speaker 1: for Justice. Course. Once again, Justice Gorseuch has a sort
Speaker 1: of distinctive and pretty rigorous and doctrinaire actually approached to
Speaker 1: reading and interpreting both statutes and constitutional texts. That's this
Speaker 1: thing we've called to called textualism. Textualism doesn't guarantee conservative
Speaker 1: results or liberal results, although it often is associated with
Speaker 1: a more sort of conservative slow moving backward looking understanding
Speaker 1: of the law. So no, I think Justice Corset would say,
Speaker 1: and I think he'd probably be right that he's being
Speaker 1: entirely principled. He was simply following where his method of
Speaker 1: reading a statute led him, and it led him to
Speaker 1: this result. By contrast, I am quite certain that his
Speaker 1: same method of reading text would lead him to the
Speaker 1: conclusion that roll versus way it was wrongly decided and
Speaker 1: to more quote unquote conservative outcomes in lots of other areas.
Speaker 1: But the people who say they're disappointed in this, I
Speaker 1: think are missing the point of lifetime appointments for Supreme
Speaker 1: Court justices and federal judges, and that is we expect
Speaker 1: them to be independent. We expect them to apply sophisticated
Speaker 1: legal analysis and legal judgment and not be looking over
Speaker 1: their shoulder about the political consequences if their legal analysis
Speaker 1: and legal judgment leads them to a conclusion that may
Speaker 1: with some people be unpopular. Now, Justice course, it's said
Speaker 1: that we don't preport to address bathrooms, locker rooms, or
Speaker 1: anything of that kind. So is this limited to employment
Speaker 1: situations to you know whether or not you can get fired,
Speaker 1: or is there any room with this decision for lower
Speaker 1: courts to expand it to other areas. It's certainly possible.
Speaker 1: I mean, it is limited to to Title seven, which
Speaker 1: governs the conditions of employment. UM, So it's not about
Speaker 1: public accommodations, it's not about housing, it's not about education,
Speaker 1: that kind of thing. But some of the reasoning in
Speaker 1: the decision could be extended to those other areas to
Speaker 1: federal laws that govern for example, education, Title nine, housing,
Speaker 1: the Fair Housing Act. Those also uh forbid discrimination because
Speaker 1: of or on the basis of sex. So it is
Speaker 1: not uncommon for federal courts to take certain language and
Speaker 1: the way it's been interpreted by the Supreme Court in
Speaker 1: one area of the law and to import it into
Speaker 1: other areas of the law. So this could potentially have
Speaker 1: wide ranging impacts. I think as for the issue of
Speaker 1: UM bathroom segregation and so forth, that's a related but
Speaker 1: the distinctive question, UM, you know, is it is it
Speaker 1: discriminating against a transgender person to say what bathroom they
Speaker 1: must use? You may be in conflict with their sense
Speaker 1: of their own gender identity. That is not necessarily the
Speaker 1: same thing as saying you are taking an adverse employment
Speaker 1: action against them because of their sex. But you know, again,
Speaker 1: a sort of conservative approach to the law says, one
Speaker 1: case at a time, this case presents one question. These
Speaker 1: other questions will come to us possibly down the road,
Speaker 1: and on the basis of full briefing and argument, we
Speaker 1: will then figure out what the right result is in
Speaker 1: those cases when they come to us. Some conservative Christian
Speaker 1: organizations are saying their concern that this decision will affect
Speaker 1: how they run their own institutions, many of which don't
Speaker 1: allow LGBT people to work there. Will it have an
Speaker 1: effect on those institutions. Well, if you're saying if by
Speaker 1: institutions you mean churches, or or or or organizations that
Speaker 1: are directly controlled by a church. No, there is already
Speaker 1: something called the ministerial Exception to Title seven, which says,
Speaker 1: for UH people who are engaged in religious ministry, they
Speaker 1: have a First Amendment free exercise of religion right. And
Speaker 1: so that's why Title seven can't be used to force
Speaker 1: the Catholic Church to hire female priests. So so that
Speaker 1: is well established. Now there's another case before the Supreme
Speaker 1: Court this term that is grappling with how far that extends.
Speaker 1: Who exactly counts as a religious minister and so forth.
Speaker 1: But now, if you're talking about a business that just
Speaker 1: happens to be owned by a person who has particular
Speaker 1: religious views, um, then this decision does apply to them
Speaker 1: until courts rule differently or find an exception for religious liberty. Um.
Speaker 1: There there is no exemption in Title seven for people
Speaker 1: for business owners just based on their religious beliefs. Um.
Speaker 1: There is, however, a requirement, and this could be important
Speaker 1: that Title seven only applies to employers that have more
Speaker 1: than fifteen employees, and so truly small businesses with fewer
Speaker 1: than fifteen people will not be affected by this decision.
Speaker 1: Are we overestimating the impact of this decision for gay rights?
Speaker 1: The decision will have a practical impact, and no doubt
Speaker 1: will arm some people who have been fired or mistreated
Speaker 1: in their jobs with legal tools they didn't previously have
Speaker 1: to go into the federal e e O C or
Speaker 1: to go to federal court to vindicate their rights. And
Speaker 1: so yes, and in that way it does have a
Speaker 1: practical importance. Um. But secondly, you know, perhaps more important
Speaker 1: is the signaling effect of the law. This tells employers
Speaker 1: who might have been thinking they could get away with
Speaker 1: firing or refusing to hire somebody because of their sexual
Speaker 1: orientation that they can. So hopefully that has a prophylactic
Speaker 1: effect of avoiding discriminatory acts before they even occur. And
Speaker 1: I think third, a decision like this inevitably sends signals
Speaker 1: to the broader society and the broader culture about the
Speaker 1: place of gay and lesbian and now transgender people in
Speaker 1: American society. Thanks Steve that, Steve Sanders of Indiana University's
Speaker 1: Moral School of Law. The Supreme corp has ruled that
Speaker 1: the eight billion dollar Atlantic Coast Pipeline can cross under
Speaker 1: the iconic Appalachian Trail, clearing a major legal obstacle that
Speaker 1: could have derailed the pipeline. The Justice is ruled seven
Speaker 1: to two that a lower court overstepped when it canceled
Speaker 1: a critical permit. Joining me is environmental law professor pet
Speaker 1: Parento of the Vermont Law School. How big a win
Speaker 1: is this for energy companies fighting to expand pipelines and
Speaker 1: fossil fueled use. Well, I mean it's one step. It's
Speaker 1: not a big win. The Atlantic Coast Pipeline itself is
Speaker 1: facing four different lawsuits or legal claims against it under
Speaker 1: the Endangered Species Act. There's an environmental Justice claim against
Speaker 1: one of the compressors that's needed. There's a NIPA Next
Speaker 1: Environmental Policy Act case, so there's a bunch of hurdles
Speaker 1: for this particular pipeline, but it certainly does eliminate what
Speaker 1: could have been a real obstacle if the Supreme Court
Speaker 1: had interpreted the Appalachian Trail to be solely within the
Speaker 1: jurisdiction of the Park Service. There's a law that basically
Speaker 1: since the Park Service, cannot grant a right of way
Speaker 1: or an easement across the trail, So it could have
Speaker 1: stopped the pipeline for sure. But now that that hurdle
Speaker 1: has been cleared, there's still a long way to go
Speaker 1: for this pipeline and many others. The issue was, as
Speaker 1: you mentioned, the intersection of several federal agencies and the
Speaker 1: definition of land. Explain those issues and how the Court
Speaker 1: decided them. So it was the seven to two decisions,
Speaker 1: so that was pretty decisive, And what the Court basically
Speaker 1: said is that a trail is an easement. The Appalachian
Speaker 1: Trail itself is not land. The trail is on land
Speaker 1: that's managed by the U. S. Forest Service, so it's
Speaker 1: federally owned land, and the Court sort of parsed all
Speaker 1: of these different statutes to say that the trail isn't land.
Speaker 1: You know, it's a right of way, it's an easement.
Speaker 1: It allows people to cross the land, but it's not
Speaker 1: the land that out. You know. That's kind of a
Speaker 1: technical but sort of common way in which courts sometimes
Speaker 1: parse the language of statutes and justice so to Mayor
Speaker 1: in her descent said, I don't understand how a trail
Speaker 1: can't be land. I mean, you have to walk on
Speaker 1: the land and harder to use the trail. And in
Speaker 1: order for the Park Service to administer the trail, which
Speaker 1: it clearly has the authority to do, it needs to
Speaker 1: be able to control what's going on on the land.
Speaker 1: But in any event, it's a classic kind of statutory
Speaker 1: interpretation where there's potentially conflicting statutes at work, certainly not
Speaker 1: seamlessly written so that they make clear sense. And the
Speaker 1: court just came down saying, in this particular case, we
Speaker 1: think the Forest Service is the right agency to grant
Speaker 1: the right away. Justice Clarence Thomas wrote the majority opinion,
Speaker 1: and he said, quote, sometimes a complicated regulatory scheme may
Speaker 1: cause us to miss the forest for the trees, but
Speaker 1: at bottom, these cases boiled down to a simple proposition.
Speaker 1: A trail is a trail and land is land. Unwind
Speaker 1: that for me, Well, I mean he's trying to, you know,
Speaker 1: simplify the case, uh by saying these are two different things,
Speaker 1: or at least legally there are two different things. A trail,
Speaker 1: you know, like I said, is it's a it's a
Speaker 1: right of way, it's a right of passage. Um, it's
Speaker 1: an easement. It's only the right to use, not occupy.
Speaker 1: He made that point. Land is something that has to
Speaker 1: be occupied possessed, whereas a trail is just something you use,
Speaker 1: um by permission. Um. And then so he said, it's
Speaker 1: not like land in that sense, it's just the right
Speaker 1: to cross the land. Sort of my orange the sense
Speaker 1: that I think it's equally simple. Um. You know, there's
Speaker 1: a definition of um. There's another law that that says
Speaker 1: that this trail is part it's a unit of the
Speaker 1: National Park System, and the Act that governs the National
Speaker 1: Park System definds unit to mean any land on which
Speaker 1: the trail is located. So so Mayor did the same
Speaker 1: thing as Justice Thomas said. I think the I think
Speaker 1: the answer is straightforward here as well. A trailers land.
Speaker 1: It's it's a path worn in the land, so it's land.
Speaker 1: That was the difference between the majority, which I said
Speaker 1: is seven members of the court agreed with Thomas or
Speaker 1: six agreed with Thomas. So you know it was not
Speaker 1: a close call. Frankly, it was. It was pretty decisive.
Speaker 1: Did they bring out the dictionary for this one? They
Speaker 1: used to bring out the dictionary a lot. I haven't
Speaker 1: seen it this term, but especially I mean, yeah, that's
Speaker 1: a famous technical justice school of the textualists and Justice
Speaker 1: Corset's recently in the Title seven case, that was another
Speaker 1: situation where you were looking at plain meaning and so forth.
Speaker 1: But in the pipeline, Justice Thomas didn't think it was
Speaker 1: necessary to to consult any particular dictionary. Dooke Energy said
Speaker 1: in a statement, Today's decision is an affirmation for the
Speaker 1: Atlantic Coast Pipeline and communities across our region that are
Speaker 1: depending on it for jobs, economic growth and clean energy.
Speaker 1: Is that clean energy for real? Now? Well clean has
Speaker 1: to be put in air quotes. You might say relatively
Speaker 1: clean compared to coal perhaps, um, which I mean coal
Speaker 1: is is clearly from an environmental standpoint, in a public
Speaker 1: health standpoint, um one of the worst sources of energy
Speaker 1: on the planet, um in terms of day to day
Speaker 1: impacts on people, their health and the equality of life.
Speaker 1: I mean, coal plants are the worst for sure. So
Speaker 1: I guess you'd say that gas providing gas as an
Speaker 1: alternative to coals. If you look at it that way,
Speaker 1: it's cleaner. It's not clean in the climate sense because
Speaker 1: it's a fossil fuel. I mean, gas is methane. Of
Speaker 1: natural gas is methane. So you can talk about this
Speaker 1: as a gas pipeline, or you could also say it's
Speaker 1: a methane pipeline. Um. And when we know from all
Speaker 1: the climate science that we're getting that we can't keep mining, developing,
Speaker 1: burning gas anymore than we could coal, we've got a
Speaker 1: completely transition away from fossil field. So in that sense,
Speaker 1: gas pipelines are not clean. Their infrastructure for fuels that
Speaker 1: are driving u the climate emergency, as some people would
Speaker 1: call it. I want to ask you about another aspect
Speaker 1: of this. Natural Resources Defense Counsel attorney Jillian Giannetti said
Speaker 1: that this is an affront to environmental justice and that
Speaker 1: disproportionately we build infrastructure in poor communities and communities of color,
Speaker 1: and ask them to shoulder the burden. Do you see
Speaker 1: that as a fact as well? Well, that specific references
Speaker 1: to the compressor station, and these compressor stations are like
Speaker 1: large buildings. These are major facilities, and they release all
Speaker 1: kinds of volatile or organic compounds which are pollutants of course,
Speaker 1: which caused terrible respiratory effects asthma and other respiratory problems.
Speaker 1: And for this pipeline, they have proposed to put this
Speaker 1: compressor station in a black community that is already living
Speaker 1: with multiple other industrial facilities. It's a typical situation in America.
Speaker 1: It's all part of whether you call an implicit bias
Speaker 1: or outright racism, it's all part of an institutional system,
Speaker 1: including environmental law, including the laws that permit facilities like
Speaker 1: this that have disproportionate impact on communities of color, so
Speaker 1: called frontline communities. So yeah, I mean she's right that,
Speaker 1: you know, the poorer communities, the communities of color, are
Speaker 1: the ones that gets saddled with these industrial facilities that
Speaker 1: nobody else wants in their backyard. To a large degree,
Speaker 1: is responsible for the fact that these communities are also
Speaker 1: more vulnerable to things like the COVID outbreak, you know,
Speaker 1: the Yale study that was issued recently found that black
Speaker 1: communities are suffering three point five times the rate of
Speaker 1: COVID infections and death as white community. So it's not hypothetical,
Speaker 1: it's real, and our laws and our permitting processes are
Speaker 1: not taking those into account. And the fourth Circuit reversed
Speaker 1: the decision to put this particular compressor in this black community.
Speaker 1: Now it's temporary, it's another one of these remand to
Speaker 1: the agency decisions, but it does illustrate the problem. Does
Speaker 1: this decision have repercussions beyond this situation, you know, the
Speaker 1: Forest Service versus the National Park Service. This particular decision,
Speaker 1: in this particular case, UM is specific to the fact
Speaker 1: that the Appalachian Trail was crossing the U. S. Forest
Speaker 1: Service land. There are something like fifty different pipeline crossings
Speaker 1: of the Appalachian Trail. You know, understand it's two thousand
Speaker 1: miles long, so um, but those are crossings that are
Speaker 1: on private land. So far, there aren't a whole lot
Speaker 1: of pipeline cases involving crossings of several lands. Now, if
Speaker 1: you broaden the question to transmission lines, and if you
Speaker 1: look across the United States, that where the transmission lines
Speaker 1: that exist today and the ones that we're going to
Speaker 1: be needing in the future are gonna go. Then you
Speaker 1: start to see more conflicts between transmission lines and the
Speaker 1: national trail system, which is all through the United States.
Speaker 1: And so it's gonna be interesting to see how that
Speaker 1: plays out going forward, because of course a lot of
Speaker 1: those transmission lines also have to be light it's been
Speaker 1: permitted um and whether or not there's there's going to
Speaker 1: be further litigation over who has the authority to approve
Speaker 1: those transmission lines when they cross trails that may be
Speaker 1: on federal land. Those are questions down the road now,
Speaker 1: but this decision probably signals that trying to block either
Speaker 1: pipelines or transmission lines using this technique of saying well
Speaker 1: only the Park Service as the authority, that's probably not
Speaker 1: gonna work. This doesn't mean the developers can begin work
Speaker 1: on the pipeline. What are some of the other hurdles
Speaker 1: that environmentalists are putting ahead of them, Well, this pipeline
Speaker 1: will also because this is a six mile The Atlantic
Speaker 1: Coast pipeline is six hundred miles long, so it needs
Speaker 1: wetlands permits under the Clean Water Act. From the core
Speaker 1: of Engineers. It needs the states through which the pipeline goes.
Speaker 1: They need to certify that any federal permit, like the
Speaker 1: Core of Engineers permit, is in full compliance with state
Speaker 1: water quality laws and standards. Some states, New York, California, Oregon,
Speaker 1: Washington have been using that clean Water authority to block
Speaker 1: pipelines and other fossil fuel infrastructure coal terminals, for example,
Speaker 1: in the state of Washington. That's a big controversy. The
Speaker 1: Trump administration is proposing to limit the authority of states
Speaker 1: to do that to block these kinds of projects citing
Speaker 1: water quality concerns. There's endangered species impacts in the Atlantic
Speaker 1: Coast pipeline and other pipelines like Keystone XL and that
Speaker 1: implicates the Federal Endangered Species Act, and that requires both,
Speaker 1: you know, a biological opinion that says that the pipeline
Speaker 1: will not jeopardize any of these species, but also requires
Speaker 1: what's called an incidental take permit to allow a pipeline
Speaker 1: that might have some impact on the species even though
Speaker 1: it doesn't jeopard guys them. So lots of federal laws
Speaker 1: involved in these cases, lots of litigation over how those
Speaker 1: federal laws are being implemented. And you know, we're still
Speaker 1: quite a ways from seeing any final resolution of a
Speaker 1: number of these cases. So now I want to turn
Speaker 1: to another pipeline issue. The Trump administration is calling on
Speaker 1: the Supreme Court to freeze a Keystone Excel ruling that
Speaker 1: has stunted the permitting for oil and gas pipelines. Tell
Speaker 1: us what the Trump administration wants here and why they're involved.
Speaker 1: So this was a decision by Judge Morris in Montana
Speaker 1: that overturned what's called a nationwide permit for pipeline construction.
Speaker 1: And the Corps of Engineers has adopted these nationwide permits,
Speaker 1: this one is called number twelve, to facilitate the review
Speaker 1: and permitting of these law long linear pipeline type projects.
Speaker 1: And um, it's a very truncated kind of process of evaluation.
Speaker 1: They don't do an environmental impact statement. These permits are
Speaker 1: actually grants of authority. So long as you comply with
Speaker 1: the conditions that have been published for these permits, you
Speaker 1: don't even have to go through an individual permit process.
Speaker 1: So it's a it's a very quick way of getting
Speaker 1: approval to lay down these pipelines. Judge Morris said, yeah,
Speaker 1: but when you adopted this nationwide permit. You didn't consult
Speaker 1: with the Fish and Wildlife Service on all the impacts
Speaker 1: that you're going to have on endangered species as you
Speaker 1: are building the Keystone pipeline and other pipelines. And so
Speaker 1: he overturned the firm. He said it's illegal. And when
Speaker 1: he did that, he said, because the permits illegal, I'm
Speaker 1: going to enjoin. Initially, he said, this all the construction
Speaker 1: in the country under this aationwide permit, none, none of
Speaker 1: its legal. The Corps of Engineers went back into court
Speaker 1: and asked him to modify it to limit it to
Speaker 1: only major pipelines, because this permit covers lots of difference activity.
Speaker 1: And so he did do that, but he's still put
Speaker 1: in place an injunction against any pipeline construction in the
Speaker 1: country that's relying on this nationwide permit. Twelve. That's the
Speaker 1: issue that the Trump administration has taken to the Supreme Court.
Speaker 1: Justice Kagan is assigned to oversee the Ninth Circuit any
Speaker 1: of the cases that arise in the Ninth Circuit. Because
Speaker 1: Montana is in the Ninth Circuit, she's the justice that
Speaker 1: has the authority to issue what's called a stay of
Speaker 1: judge Morris's order if she feels it's necessary to do so.
Speaker 1: She has now ordered the parties that is, the people
Speaker 1: opposing the pipeline and the government and the pipeline company
Speaker 1: to submit briefs by the end of the month, so
Speaker 1: she's put it on a very fast track to decide
Speaker 1: will she live Judge Morris's nationwide injunction or maybe modify
Speaker 1: it to say, well, I can leave it in place
Speaker 1: for the Keystone pipeline, but I'm not going to allow
Speaker 1: it to block all other pipeline constructions. So we're gonna
Speaker 1: have to wait to see whether she wants to lift
Speaker 1: to stay in part or in hole, or leave it
Speaker 1: in place until the case has been argued in the
Speaker 1: Ninth Circuit and then ultimately, I suppose it will come
Speaker 1: back to the U. S. Supreme Court after that. Thanks
Speaker 1: for being on Bloomberg Law. Pat. That's Pat Parento of
Speaker 1: the Vermont Law School, and that's it for the position
Speaker 1: of Bloomberg Law. Remember to subscribe to our Bloomberg Law
Speaker 1: podcast for the latest legal news. I'm June Blosso thanks
Speaker 1: for listening, and remember to change to the Bloomberg Law
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