WEBVTT - A Watershed Moment for Gay Rights 0:00:00.480 --> 0:00:05.680 You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:05.800 --> 0:00:09.200 It's a watershed moment for gay rights, as the Supreme 0:00:09.240 --> 0:00:12.760 Court ruled in a landmark case on Monday that federal 0:00:12.840 --> 0:00:17.240 law protects gay and transgender workers from job discrimination, giving 0:00:17.280 --> 0:00:21.160 millions of LGBT people in dozens of states civil rights 0:00:21.160 --> 0:00:24.960 they'd sought for decades. Gerald Bostock was one of the plaintiffs. 0:00:25.200 --> 0:00:30.240 I'm overwhelmed with joy and mccarts filled with with gratitude. 0:00:30.960 --> 0:00:33.360 It was a six to three decision, with Chief Justice 0:00:33.479 --> 0:00:36.600 John Roberts and Justice Neil Gorsuch joining the courts for 0:00:36.800 --> 0:00:39.800 liberals in the majority. One of the biggest surprises was 0:00:39.840 --> 0:00:43.440 that the majority opinion was written by conservative Justice Gorsuch, 0:00:43.640 --> 0:00:46.519 although perhaps there was a hint during the oral arguments 0:00:46.720 --> 0:00:49.839 that he would interpret the words sex entitle seven to 0:00:49.960 --> 0:00:54.640 cover sexual orientation and gender identity. Let's do truth, okay, 0:00:56.640 --> 0:01:02.400 wouldn't Wouldn't the employer maybe say it's because this was 0:01:02.560 --> 0:01:07.080 this person was a man who liked other men, and 0:01:07.240 --> 0:01:11.880 isn't that first part sex. My guest is Steve Sanders, 0:01:12.000 --> 0:01:16.360 professor at Indiana University's Moral School of Law. So Steve 0:01:16.440 --> 0:01:20.480 explained why this is a landmark decision. It's landmark for 0:01:20.600 --> 0:01:23.399 a number of reasons to First of all, it's the 0:01:23.400 --> 0:01:26.840 first time the U. S. Supreme Court has delivered a 0:01:26.920 --> 0:01:30.280 major gay and lesbian and transgender rights decision that was 0:01:30.360 --> 0:01:34.080 based on the interpretation of a federal statute, something passed 0:01:34.080 --> 0:01:40.720 by Congress, as opposed to a constitutional decision. Constitutional language allows, 0:01:40.840 --> 0:01:44.720 you know, for broader discussions of concepts like dignity and 0:01:45.200 --> 0:01:50.000 evolving social understandings. State story interpretation is more limited. Yet 0:01:50.040 --> 0:01:53.880 Justice Gorset found a way through his method of interpretation 0:01:54.400 --> 0:01:57.240 to say that in existing law dating back to n 0:01:58.840 --> 0:02:05.400 on sex to sscrimination also encompasses discrimination against gay's, lesbians, bisexuals, 0:02:05.440 --> 0:02:11.520 and transgender people. It's also landmark because this extends federal 0:02:11.600 --> 0:02:15.760 law to protect employment. In all fifty states, there has 0:02:15.840 --> 0:02:22.600 been no federal law expressly addressing sexual orientation or transgender discrimination. 0:02:22.960 --> 0:02:27.000 Only twenty one states have such laws on the books, 0:02:27.040 --> 0:02:29.960 and so it's significant because it extends the reach of 0:02:30.040 --> 0:02:34.360 federal protections for gay's, lesbians, and transgender people in a 0:02:34.440 --> 0:02:37.720 significant way. And finally, the third way in which it's 0:02:38.000 --> 0:02:42.760 landmark is the author, you know, a textualist Donald Trump 0:02:42.800 --> 0:02:47.040 appointee to the Supreme Court, who delivered an opinion that 0:02:47.120 --> 0:02:50.360 I think many people would not have expected. And if 0:02:50.400 --> 0:02:55.080 it doesn't, you know, scramble our ideas and preconceptions about 0:02:55.120 --> 0:02:58.560 what it means to be a democratically appointed justice versus 0:02:58.560 --> 0:03:01.720 a Republican appointed justice. At least it shows that those 0:03:01.760 --> 0:03:08.000 debates can be limited and often constrained. Justice Course, It's said, 0:03:08.120 --> 0:03:11.399 only the written word is the law, and all persons 0:03:11.440 --> 0:03:15.040 are entitled to its benefit. Did he really stick to 0:03:15.400 --> 0:03:19.880 textualism in his opinion? Well, so this is a debate 0:03:19.919 --> 0:03:23.079 that I think will continue to rage in law reviews 0:03:23.160 --> 0:03:26.400 and scholarly discourse and so forth for a while. You know, 0:03:26.520 --> 0:03:30.720 what does it mean to do textualist analysis? Here's what 0:03:30.840 --> 0:03:34.560 Justice Course has said. Justice Course had said, Congress in 0:03:35.520 --> 0:03:38.960 four issued a very broad mandate that employers may not 0:03:39.120 --> 0:03:44.680 discriminate because of sex. The critical assumption that he makes, 0:03:44.760 --> 0:03:48.480 or the central argument that he makes, is that when 0:03:48.600 --> 0:03:53.480 you are considering a person's sexual orientation or you're considering 0:03:53.520 --> 0:03:58.440 their gender identity, you are invariably thinking about their sex. 0:03:58.600 --> 0:04:01.920 And if you take act and against them the disadvantagism 0:04:02.200 --> 0:04:04.360 you fire them, you refuse to promote them, and so forth, 0:04:04.600 --> 0:04:07.640 you were taking into account their sex. A simple example, 0:04:07.800 --> 0:04:10.440 you have an employee who's a man who wants to 0:04:10.520 --> 0:04:13.920 date a woman, find the employer has no problem with that. 0:04:14.480 --> 0:04:18.240 You have a female employee who wants to date a woman, 0:04:18.640 --> 0:04:21.760 and the employer does have a problem with that. The 0:04:21.800 --> 0:04:25.240 employer has taken account of the employee sex. The employer 0:04:25.320 --> 0:04:28.520 is basically saying, I believe that women should date men, 0:04:28.600 --> 0:04:31.600 but that women should not date women. They are discriminating 0:04:31.640 --> 0:04:35.400 against the person based on what sex they belong to. 0:04:35.520 --> 0:04:39.520 And Similarly, if you discriminate against a person who now 0:04:39.680 --> 0:04:43.560 presents to the world as female, but whose birth certificate 0:04:43.640 --> 0:04:47.039 says they are male, and you take action against that person, 0:04:47.440 --> 0:04:50.560 yet you don't take action against a person who is 0:04:50.800 --> 0:04:54.200 male and whose birth certificate also says male, you were 0:04:54.240 --> 0:04:57.479 taking into account their sex. That the critical assumption here 0:04:57.560 --> 0:05:01.000 is that the text of the statute says sex, and 0:05:01.040 --> 0:05:04.880 that when you discriminate against people because they're gay, lesbian, 0:05:04.960 --> 0:05:08.839 or transgender, as part of that decision, you are inevitably 0:05:08.960 --> 0:05:13.359 making some judgment about proper behavior for a member of 0:05:13.440 --> 0:05:19.159 their sex. Justice Samuel Alito's descent was stinging he said, 0:05:19.240 --> 0:05:24.240 the arrogance of Gorsuch's argument is breathtaking. What problem did 0:05:24.240 --> 0:05:28.599 he have with the writing of gore such as opinion? Well, again, 0:05:28.720 --> 0:05:31.680 from a technical standpoint, I think part of it gets 0:05:31.720 --> 0:05:34.120 to what does it mean to be a textualist, And 0:05:34.320 --> 0:05:38.440 different academics and different justices may disagree on that. But 0:05:38.560 --> 0:05:41.760 what Justice Alito is saying is you can't think about 0:05:41.760 --> 0:05:45.160 the words sex in the language of the statute without 0:05:45.240 --> 0:05:48.719 also bearing in mind what that word meant to the 0:05:48.800 --> 0:05:52.000 people who wrote it back in nineteen sixty four. And 0:05:52.080 --> 0:05:54.479 it's pretty hard to argue with the idea that in 0:05:54.600 --> 0:05:58.240 outlawing discrimination on the basis of sex, the Congress in 0:05:58.320 --> 0:06:01.839 nineteen sixty four would have imagined that they were also 0:06:02.000 --> 0:06:06.919 protecting gay people, lesbians, transgender people, and so forth. Just 0:06:07.040 --> 0:06:10.239 as gorsus response that no, you know, sex is sex 0:06:10.279 --> 0:06:13.719 and we have to interpret what it means today. To 0:06:13.880 --> 0:06:17.000 go back in time and say, well, Congress couldn't have 0:06:17.040 --> 0:06:21.000 imagined that is not really textualism. It's more a form 0:06:21.080 --> 0:06:24.279 of originalism. It's like, what is the original intent of 0:06:24.360 --> 0:06:27.440 this law? Who was it intended to protect and why? 0:06:27.600 --> 0:06:30.320 So we're getting into the nitty gritty of some debates 0:06:30.360 --> 0:06:34.800 between originalism and textualism, and I think Justice Alito's perspective 0:06:34.839 --> 0:06:39.960 is more the originalist perspective. Secondly, I think, you know, 0:06:40.080 --> 0:06:44.400 a lot of Justice Alito's arguments boils down to, in 0:06:44.440 --> 0:06:48.760 a practical sense, come on, everybody here knows that this 0:06:48.839 --> 0:06:52.839 is about people's sexual orientation and their gender identity. To 0:06:52.960 --> 0:06:56.599 say it's a matter of sex discrimination is a sort 0:06:56.640 --> 0:07:01.320 of formalism which is game playing with war words and semantics, 0:07:01.360 --> 0:07:04.600 but is failing to confront what the real issue is here. 0:07:04.600 --> 0:07:07.640 These are gay people, these are lesbians, these are transgender people. 0:07:08.000 --> 0:07:11.960 They believe they have been discriminated as such, not on 0:07:12.000 --> 0:07:15.440 the basis of their sex. And finally, I think, you know, 0:07:15.520 --> 0:07:19.240 maybe just Alito just couldn't have imagined a decision like 0:07:19.400 --> 0:07:22.640 this from a Republican colleague, from someone who is known 0:07:22.720 --> 0:07:25.280 generally as a judicial conservative. So there may have been 0:07:25.320 --> 0:07:28.440 just a sort of sense of betrayal here that something 0:07:28.640 --> 0:07:31.800 just as Alito could not have imagined would happen. And 0:07:31.840 --> 0:07:35.920 I think you're right his descent was impassioned and outraged, 0:07:36.080 --> 0:07:38.000 and part of it is I think he sort of 0:07:38.000 --> 0:07:42.320 felt betrayed. A lot of people are reading into the 0:07:42.360 --> 0:07:46.680 fact that Chief Justice John Roberts assigned the writing of 0:07:46.680 --> 0:07:50.440 this opinion to Gorsage. We all, so that's right. The 0:07:50.480 --> 0:07:53.960 Chief Justice, when he's in the majority, controls the assignment 0:07:54.000 --> 0:07:57.840 of the opinion. So let's assume for sake of argument. 0:07:57.880 --> 0:08:00.880 Although we really don't know that Chief Justice Roberts, you know, 0:08:01.040 --> 0:08:03.680 voted on this side from the beginning, he could have 0:08:03.720 --> 0:08:08.160 assigned the opinion to, say Justice Ruth Bader Ginsburg, and 0:08:08.200 --> 0:08:10.200 I think we would have gotten the same result that 0:08:10.280 --> 0:08:13.760 a very different opinion this opinion from Justice Gore, such 0:08:13.800 --> 0:08:19.400 as a landmark decision for the treatment of LGBT people 0:08:19.560 --> 0:08:22.920 in employment law. That is different from saying it's a 0:08:23.000 --> 0:08:27.920 sort of manifesto of LGBT equality or that it's a 0:08:28.120 --> 0:08:32.920 roadmap for the future of the LGBT rights legal movement. 0:08:33.400 --> 0:08:37.000 It doesn't stray beyond the narrow question of Title seven. 0:08:37.040 --> 0:08:39.160 I think we would have gotten much different sort of 0:08:39.200 --> 0:08:43.079 opinion with different words and also different music from one 0:08:43.080 --> 0:08:46.480 of the courts. More liberal justices say, if Justice Ginsberg 0:08:46.520 --> 0:08:50.240 had written this opinion, she wouldn't have taken the textualist approach. Probably, 0:08:50.280 --> 0:08:53.520 So you know, there's some speculation the Chief Justice Roberts 0:08:53.559 --> 0:08:56.080 gave it to Justice Gorsege because he knew that the 0:08:56.120 --> 0:09:00.440 opinion would be yes, seismic in its immediate effect, but 0:09:00.640 --> 0:09:04.360 also more narrow and limited in the way it might 0:09:04.440 --> 0:09:09.320 be extended into other contexts. There's also some speculation that 0:09:09.559 --> 0:09:12.400 Justice Roberts may have flipped his vote, that he may 0:09:12.400 --> 0:09:15.160 have been on the other side of the issue. But 0:09:15.520 --> 0:09:17.880 you know, couldn't write an opinion that could get Justice 0:09:17.920 --> 0:09:20.720 gorseuchs vote. And you know, those are things we'll just 0:09:20.840 --> 0:09:24.520 never know. Justice Gorsuch has gotten a lot of criticism 0:09:24.600 --> 0:09:28.640 from conservatives about this opinion. Are they reading too much 0:09:28.720 --> 0:09:32.040 into this decision, perhaps projecting that he'll side with the 0:09:32.120 --> 0:09:36.319 liberals in future cases, for example, abortion cases. Well, I 0:09:36.320 --> 0:09:39.359 I think I would actually frame it a bit differently. 0:09:39.760 --> 0:09:43.800 I wouldn't say that this was necessarily an ideological deviation 0:09:44.000 --> 0:09:47.600 for Justice. Course. Once again, Justice Gorseuch has a sort 0:09:47.640 --> 0:09:52.960 of distinctive and pretty rigorous and doctrinaire actually approached to 0:09:53.520 --> 0:09:57.720 reading and interpreting both statutes and constitutional texts. That's this 0:09:57.760 --> 0:10:03.559 thing we've called to called textualism. Textualism doesn't guarantee conservative 0:10:03.559 --> 0:10:07.000 results or liberal results, although it often is associated with 0:10:07.040 --> 0:10:11.359 a more sort of conservative slow moving backward looking understanding 0:10:11.400 --> 0:10:15.040 of the law. So no, I think Justice Corset would say, 0:10:15.080 --> 0:10:16.800 and I think he'd probably be right that he's being 0:10:16.960 --> 0:10:20.480 entirely principled. He was simply following where his method of 0:10:20.559 --> 0:10:23.720 reading a statute led him, and it led him to 0:10:23.800 --> 0:10:27.120 this result. By contrast, I am quite certain that his 0:10:27.240 --> 0:10:30.000 same method of reading text would lead him to the 0:10:30.040 --> 0:10:33.480 conclusion that roll versus way it was wrongly decided and 0:10:33.920 --> 0:10:38.079 to more quote unquote conservative outcomes in lots of other areas. 0:10:38.120 --> 0:10:41.120 But the people who say they're disappointed in this, I 0:10:41.160 --> 0:10:45.600 think are missing the point of lifetime appointments for Supreme 0:10:45.600 --> 0:10:48.800 Court justices and federal judges, and that is we expect 0:10:48.840 --> 0:10:52.920 them to be independent. We expect them to apply sophisticated 0:10:53.000 --> 0:10:56.880 legal analysis and legal judgment and not be looking over 0:10:56.920 --> 0:11:01.920 their shoulder about the political consequences if their legal analysis 0:11:01.920 --> 0:11:05.720 and legal judgment leads them to a conclusion that may 0:11:05.960 --> 0:11:10.800 with some people be unpopular. Now, Justice course, it's said 0:11:11.040 --> 0:11:14.439 that we don't preport to address bathrooms, locker rooms, or 0:11:14.480 --> 0:11:19.040 anything of that kind. So is this limited to employment 0:11:19.120 --> 0:11:22.280 situations to you know whether or not you can get fired, 0:11:22.720 --> 0:11:26.480 or is there any room with this decision for lower 0:11:26.559 --> 0:11:32.360 courts to expand it to other areas. It's certainly possible. 0:11:32.400 --> 0:11:35.800 I mean, it is limited to to Title seven, which 0:11:35.840 --> 0:11:41.679 governs the conditions of employment. UM, So it's not about 0:11:41.679 --> 0:11:45.120 public accommodations, it's not about housing, it's not about education, 0:11:45.200 --> 0:11:47.680 that kind of thing. But some of the reasoning in 0:11:47.679 --> 0:11:50.719 the decision could be extended to those other areas to 0:11:51.280 --> 0:11:56.240 federal laws that govern for example, education, Title nine, housing, 0:11:56.760 --> 0:12:02.120 the Fair Housing Act. Those also uh forbid discrimination because 0:12:02.320 --> 0:12:05.360 of or on the basis of sex. So it is 0:12:05.360 --> 0:12:09.720 not uncommon for federal courts to take certain language and 0:12:09.760 --> 0:12:12.320 the way it's been interpreted by the Supreme Court in 0:12:12.480 --> 0:12:15.960 one area of the law and to import it into 0:12:16.080 --> 0:12:19.120 other areas of the law. So this could potentially have 0:12:19.440 --> 0:12:22.559 wide ranging impacts. I think as for the issue of 0:12:23.320 --> 0:12:27.880 UM bathroom segregation and so forth, that's a related but 0:12:27.559 --> 0:12:32.600 the distinctive question, UM, you know, is it is it 0:12:32.760 --> 0:12:38.600 discriminating against a transgender person to say what bathroom they 0:12:38.679 --> 0:12:42.360 must use? You may be in conflict with their sense 0:12:42.400 --> 0:12:46.080 of their own gender identity. That is not necessarily the 0:12:46.160 --> 0:12:49.200 same thing as saying you are taking an adverse employment 0:12:49.240 --> 0:12:53.040 action against them because of their sex. But you know, again, 0:12:53.480 --> 0:12:56.320 a sort of conservative approach to the law says, one 0:12:56.360 --> 0:13:00.199 case at a time, this case presents one question. These 0:13:00.240 --> 0:13:03.200 other questions will come to us possibly down the road, 0:13:03.640 --> 0:13:07.440 and on the basis of full briefing and argument, we 0:13:07.559 --> 0:13:10.440 will then figure out what the right result is in 0:13:10.480 --> 0:13:14.120 those cases when they come to us. Some conservative Christian 0:13:14.200 --> 0:13:19.240 organizations are saying their concern that this decision will affect 0:13:19.320 --> 0:13:23.440 how they run their own institutions, many of which don't 0:13:23.440 --> 0:13:27.320 allow LGBT people to work there. Will it have an 0:13:27.320 --> 0:13:32.360 effect on those institutions. Well, if you're saying if by 0:13:32.440 --> 0:13:37.720 institutions you mean churches, or or or or organizations that 0:13:37.760 --> 0:13:41.120 are directly controlled by a church. No, there is already 0:13:41.200 --> 0:13:45.640 something called the ministerial Exception to Title seven, which says, 0:13:45.760 --> 0:13:50.559 for UH people who are engaged in religious ministry, they 0:13:50.600 --> 0:13:54.079 have a First Amendment free exercise of religion right. And 0:13:54.320 --> 0:13:56.920 so that's why Title seven can't be used to force 0:13:56.960 --> 0:14:00.520 the Catholic Church to hire female priests. So so that 0:14:00.679 --> 0:14:03.439 is well established. Now there's another case before the Supreme 0:14:03.480 --> 0:14:06.840 Court this term that is grappling with how far that extends. 0:14:06.880 --> 0:14:10.640 Who exactly counts as a religious minister and so forth. 0:14:10.679 --> 0:14:13.800 But now, if you're talking about a business that just 0:14:13.880 --> 0:14:16.800 happens to be owned by a person who has particular 0:14:16.880 --> 0:14:21.080 religious views, um, then this decision does apply to them 0:14:21.160 --> 0:14:27.800 until courts rule differently or find an exception for religious liberty. Um. 0:14:27.880 --> 0:14:32.360 There there is no exemption in Title seven for people 0:14:33.000 --> 0:14:36.720 for business owners just based on their religious beliefs. Um. 0:14:36.840 --> 0:14:39.640 There is, however, a requirement, and this could be important 0:14:39.640 --> 0:14:42.400 that Title seven only applies to employers that have more 0:14:42.440 --> 0:14:46.760 than fifteen employees, and so truly small businesses with fewer 0:14:46.800 --> 0:14:50.200 than fifteen people will not be affected by this decision. 0:14:50.800 --> 0:14:55.240 Are we overestimating the impact of this decision for gay rights? 0:14:55.760 --> 0:14:59.280 The decision will have a practical impact, and no doubt 0:14:59.360 --> 0:15:03.400 will arm some people who have been fired or mistreated 0:15:03.400 --> 0:15:06.720 in their jobs with legal tools they didn't previously have 0:15:07.280 --> 0:15:10.080 to go into the federal e e O C or 0:15:10.120 --> 0:15:13.720 to go to federal court to vindicate their rights. And 0:15:13.960 --> 0:15:15.640 so yes, and in that way it does have a 0:15:15.720 --> 0:15:20.200 practical importance. Um. But secondly, you know, perhaps more important 0:15:20.320 --> 0:15:23.520 is the signaling effect of the law. This tells employers 0:15:23.800 --> 0:15:26.640 who might have been thinking they could get away with 0:15:26.760 --> 0:15:29.560 firing or refusing to hire somebody because of their sexual 0:15:29.560 --> 0:15:33.920 orientation that they can. So hopefully that has a prophylactic 0:15:33.960 --> 0:15:39.120 effect of avoiding discriminatory acts before they even occur. And 0:15:39.200 --> 0:15:43.520 I think third, a decision like this inevitably sends signals 0:15:43.560 --> 0:15:47.480 to the broader society and the broader culture about the 0:15:47.560 --> 0:15:50.840 place of gay and lesbian and now transgender people in 0:15:50.920 --> 0:15:56.160 American society. Thanks Steve that, Steve Sanders of Indiana University's 0:15:56.240 --> 0:16:00.600 Moral School of Law. The Supreme corp has ruled that 0:16:00.680 --> 0:16:04.320 the eight billion dollar Atlantic Coast Pipeline can cross under 0:16:04.320 --> 0:16:08.560 the iconic Appalachian Trail, clearing a major legal obstacle that 0:16:08.600 --> 0:16:11.800 could have derailed the pipeline. The Justice is ruled seven 0:16:11.880 --> 0:16:14.840 to two that a lower court overstepped when it canceled 0:16:14.880 --> 0:16:18.400 a critical permit. Joining me is environmental law professor pet 0:16:18.400 --> 0:16:22.000 Parento of the Vermont Law School. How big a win 0:16:22.400 --> 0:16:27.120 is this for energy companies fighting to expand pipelines and 0:16:27.280 --> 0:16:31.600 fossil fueled use. Well, I mean it's one step. It's 0:16:31.640 --> 0:16:36.160 not a big win. The Atlantic Coast Pipeline itself is 0:16:36.200 --> 0:16:40.400 facing four different lawsuits or legal claims against it under 0:16:40.520 --> 0:16:44.680 the Endangered Species Act. There's an environmental Justice claim against 0:16:44.760 --> 0:16:48.360 one of the compressors that's needed. There's a NIPA Next 0:16:48.440 --> 0:16:51.360 Environmental Policy Act case, so there's a bunch of hurdles 0:16:51.400 --> 0:16:55.480 for this particular pipeline, but it certainly does eliminate what 0:16:55.600 --> 0:16:58.360 could have been a real obstacle if the Supreme Court 0:16:58.360 --> 0:17:01.680 had interpreted the Appalachian Trail to be solely within the 0:17:01.760 --> 0:17:04.880 jurisdiction of the Park Service. There's a law that basically 0:17:04.960 --> 0:17:07.600 since the Park Service, cannot grant a right of way 0:17:07.720 --> 0:17:09.879 or an easement across the trail, So it could have 0:17:09.960 --> 0:17:13.600 stopped the pipeline for sure. But now that that hurdle 0:17:13.640 --> 0:17:16.000 has been cleared, there's still a long way to go 0:17:16.119 --> 0:17:19.080 for this pipeline and many others. The issue was, as 0:17:19.160 --> 0:17:23.159 you mentioned, the intersection of several federal agencies and the 0:17:23.280 --> 0:17:28.159 definition of land. Explain those issues and how the Court 0:17:28.480 --> 0:17:31.840 decided them. So it was the seven to two decisions, 0:17:31.880 --> 0:17:35.200 so that was pretty decisive, And what the Court basically 0:17:35.240 --> 0:17:38.399 said is that a trail is an easement. The Appalachian 0:17:38.440 --> 0:17:42.119 Trail itself is not land. The trail is on land 0:17:42.280 --> 0:17:45.840 that's managed by the U. S. Forest Service, so it's 0:17:45.840 --> 0:17:50.880 federally owned land, and the Court sort of parsed all 0:17:50.880 --> 0:17:54.720 of these different statutes to say that the trail isn't land. 0:17:54.960 --> 0:17:56.680 You know, it's a right of way, it's an easement. 0:17:56.760 --> 0:17:59.199 It allows people to cross the land, but it's not 0:17:59.280 --> 0:18:01.680 the land that out. You know. That's kind of a 0:18:01.680 --> 0:18:06.480 technical but sort of common way in which courts sometimes 0:18:06.560 --> 0:18:10.959 parse the language of statutes and justice so to Mayor 0:18:11.200 --> 0:18:14.800 in her descent said, I don't understand how a trail 0:18:14.880 --> 0:18:17.000 can't be land. I mean, you have to walk on 0:18:17.119 --> 0:18:20.359 the land and harder to use the trail. And in 0:18:20.480 --> 0:18:24.120 order for the Park Service to administer the trail, which 0:18:24.119 --> 0:18:26.919 it clearly has the authority to do, it needs to 0:18:26.960 --> 0:18:30.119 be able to control what's going on on the land. 0:18:30.560 --> 0:18:34.520 But in any event, it's a classic kind of statutory 0:18:34.640 --> 0:18:41.480 interpretation where there's potentially conflicting statutes at work, certainly not 0:18:41.920 --> 0:18:46.000 seamlessly written so that they make clear sense. And the 0:18:46.040 --> 0:18:48.639 court just came down saying, in this particular case, we 0:18:48.760 --> 0:18:51.800 think the Forest Service is the right agency to grant 0:18:51.800 --> 0:18:55.920 the right away. Justice Clarence Thomas wrote the majority opinion, 0:18:55.960 --> 0:19:00.560 and he said, quote, sometimes a complicated regulatory scheme may 0:19:00.640 --> 0:19:03.320 cause us to miss the forest for the trees, but 0:19:03.400 --> 0:19:06.800 at bottom, these cases boiled down to a simple proposition. 0:19:07.280 --> 0:19:11.160 A trail is a trail and land is land. Unwind 0:19:11.240 --> 0:19:15.000 that for me, Well, I mean he's trying to, you know, 0:19:15.240 --> 0:19:20.080 simplify the case, uh by saying these are two different things, 0:19:20.200 --> 0:19:24.480 or at least legally there are two different things. A trail, 0:19:24.800 --> 0:19:26.480 you know, like I said, is it's a it's a 0:19:26.600 --> 0:19:29.600 right of way, it's a right of passage. Um, it's 0:19:29.640 --> 0:19:33.399 an easement. It's only the right to use, not occupy. 0:19:33.600 --> 0:19:36.720 He made that point. Land is something that has to 0:19:36.760 --> 0:19:41.400 be occupied possessed, whereas a trail is just something you use, 0:19:42.359 --> 0:19:46.040 um by permission. Um. And then so he said, it's 0:19:46.040 --> 0:19:48.840 not like land in that sense, it's just the right 0:19:49.240 --> 0:19:52.400 to cross the land. Sort of my orange the sense 0:19:52.440 --> 0:19:55.800 that I think it's equally simple. Um. You know, there's 0:19:55.840 --> 0:20:00.000 a definition of um. There's another law that that says 0:20:00.040 --> 0:20:03.600 that this trail is part it's a unit of the 0:20:03.720 --> 0:20:07.479 National Park System, and the Act that governs the National 0:20:07.520 --> 0:20:11.280 Park System definds unit to mean any land on which 0:20:11.320 --> 0:20:15.280 the trail is located. So so Mayor did the same 0:20:15.320 --> 0:20:17.520 thing as Justice Thomas said. I think the I think 0:20:17.560 --> 0:20:22.000 the answer is straightforward here as well. A trailers land. 0:20:22.040 --> 0:20:25.520 It's it's a path worn in the land, so it's land. 0:20:26.960 --> 0:20:30.120 That was the difference between the majority, which I said 0:20:30.200 --> 0:20:32.960 is seven members of the court agreed with Thomas or 0:20:33.040 --> 0:20:35.560 six agreed with Thomas. So you know it was not 0:20:35.760 --> 0:20:38.520 a close call. Frankly, it was. It was pretty decisive. 0:20:38.800 --> 0:20:40.879 Did they bring out the dictionary for this one? They 0:20:40.960 --> 0:20:43.160 used to bring out the dictionary a lot. I haven't 0:20:43.200 --> 0:20:47.480 seen it this term, but especially I mean, yeah, that's 0:20:47.480 --> 0:20:51.359 a famous technical justice school of the textualists and Justice 0:20:51.400 --> 0:20:55.320 Corset's recently in the Title seven case, that was another 0:20:55.400 --> 0:20:58.320 situation where you were looking at plain meaning and so forth. 0:20:58.640 --> 0:21:01.919 But in the pipeline, Justice Thomas didn't think it was 0:21:02.000 --> 0:21:06.680 necessary to to consult any particular dictionary. Dooke Energy said 0:21:06.720 --> 0:21:09.600 in a statement, Today's decision is an affirmation for the 0:21:09.600 --> 0:21:12.840 Atlantic Coast Pipeline and communities across our region that are 0:21:12.880 --> 0:21:17.199 depending on it for jobs, economic growth and clean energy. 0:21:17.240 --> 0:21:21.320 Is that clean energy for real? Now? Well clean has 0:21:21.359 --> 0:21:25.199 to be put in air quotes. You might say relatively 0:21:25.280 --> 0:21:29.920 clean compared to coal perhaps, um, which I mean coal 0:21:30.040 --> 0:21:33.000 is is clearly from an environmental standpoint, in a public 0:21:33.000 --> 0:21:36.200 health standpoint, um one of the worst sources of energy 0:21:36.359 --> 0:21:39.119 on the planet, um in terms of day to day 0:21:39.200 --> 0:21:43.240 impacts on people, their health and the equality of life. 0:21:43.400 --> 0:21:46.080 I mean, coal plants are the worst for sure. So 0:21:46.200 --> 0:21:48.679 I guess you'd say that gas providing gas as an 0:21:48.680 --> 0:21:51.000 alternative to coals. If you look at it that way, 0:21:51.400 --> 0:21:54.920 it's cleaner. It's not clean in the climate sense because 0:21:54.920 --> 0:21:59.080 it's a fossil fuel. I mean, gas is methane. Of 0:21:59.160 --> 0:22:02.480 natural gas is methane. So you can talk about this 0:22:02.520 --> 0:22:04.640 as a gas pipeline, or you could also say it's 0:22:04.640 --> 0:22:08.600 a methane pipeline. Um. And when we know from all 0:22:08.640 --> 0:22:13.240 the climate science that we're getting that we can't keep mining, developing, 0:22:13.359 --> 0:22:16.720 burning gas anymore than we could coal, we've got a 0:22:16.800 --> 0:22:21.399 completely transition away from fossil field. So in that sense, 0:22:22.000 --> 0:22:26.399 gas pipelines are not clean. Their infrastructure for fuels that 0:22:26.520 --> 0:22:31.120 are driving u the climate emergency, as some people would 0:22:31.119 --> 0:22:34.200 call it. I want to ask you about another aspect 0:22:34.200 --> 0:22:39.520 of this. Natural Resources Defense Counsel attorney Jillian Giannetti said 0:22:39.760 --> 0:22:44.080 that this is an affront to environmental justice and that 0:22:44.280 --> 0:22:49.919 disproportionately we build infrastructure in poor communities and communities of color, 0:22:50.200 --> 0:22:52.880 and ask them to shoulder the burden. Do you see 0:22:52.920 --> 0:22:57.000 that as a fact as well? Well, that specific references 0:22:57.040 --> 0:23:00.199 to the compressor station, and these compressor stations are like 0:23:00.320 --> 0:23:04.600 large buildings. These are major facilities, and they release all 0:23:04.680 --> 0:23:09.000 kinds of volatile or organic compounds which are pollutants of course, 0:23:09.520 --> 0:23:15.760 which caused terrible respiratory effects asthma and other respiratory problems. 0:23:15.840 --> 0:23:19.240 And for this pipeline, they have proposed to put this 0:23:19.320 --> 0:23:23.760 compressor station in a black community that is already living 0:23:23.800 --> 0:23:28.560 with multiple other industrial facilities. It's a typical situation in America. 0:23:28.720 --> 0:23:32.320 It's all part of whether you call an implicit bias 0:23:32.480 --> 0:23:36.560 or outright racism, it's all part of an institutional system, 0:23:36.600 --> 0:23:40.879 including environmental law, including the laws that permit facilities like 0:23:40.960 --> 0:23:45.840 this that have disproportionate impact on communities of color, so 0:23:45.920 --> 0:23:50.400 called frontline communities. So yeah, I mean she's right that, 0:23:50.720 --> 0:23:53.639 you know, the poorer communities, the communities of color, are 0:23:53.680 --> 0:23:57.439 the ones that gets saddled with these industrial facilities that 0:23:57.480 --> 0:24:01.480 nobody else wants in their backyard. To a large degree, 0:24:02.520 --> 0:24:07.960 is responsible for the fact that these communities are also 0:24:08.280 --> 0:24:11.960 more vulnerable to things like the COVID outbreak, you know, 0:24:12.040 --> 0:24:15.760 the Yale study that was issued recently found that black 0:24:15.880 --> 0:24:21.080 communities are suffering three point five times the rate of 0:24:21.440 --> 0:24:26.200 COVID infections and death as white community. So it's not hypothetical, 0:24:26.280 --> 0:24:30.080 it's real, and our laws and our permitting processes are 0:24:30.119 --> 0:24:33.240 not taking those into account. And the fourth Circuit reversed 0:24:33.440 --> 0:24:37.840 the decision to put this particular compressor in this black community. 0:24:37.840 --> 0:24:41.280 Now it's temporary, it's another one of these remand to 0:24:41.359 --> 0:24:45.480 the agency decisions, but it does illustrate the problem. Does 0:24:45.520 --> 0:24:50.840 this decision have repercussions beyond this situation, you know, the 0:24:50.880 --> 0:24:56.040 Forest Service versus the National Park Service. This particular decision, 0:24:56.080 --> 0:25:02.520 in this particular case, UM is specific to the fact 0:25:02.560 --> 0:25:06.760 that the Appalachian Trail was crossing the U. S. Forest 0:25:06.800 --> 0:25:12.200 Service land. There are something like fifty different pipeline crossings 0:25:12.520 --> 0:25:15.080 of the Appalachian Trail. You know, understand it's two thousand 0:25:15.080 --> 0:25:18.880 miles long, so um, but those are crossings that are 0:25:18.920 --> 0:25:22.360 on private land. So far, there aren't a whole lot 0:25:22.359 --> 0:25:27.440 of pipeline cases involving crossings of several lands. Now, if 0:25:27.480 --> 0:25:31.800 you broaden the question to transmission lines, and if you 0:25:31.840 --> 0:25:36.879 look across the United States, that where the transmission lines 0:25:36.880 --> 0:25:39.000 that exist today and the ones that we're going to 0:25:39.040 --> 0:25:42.679 be needing in the future are gonna go. Then you 0:25:42.760 --> 0:25:47.680 start to see more conflicts between transmission lines and the 0:25:47.800 --> 0:25:51.160 national trail system, which is all through the United States. 0:25:51.359 --> 0:25:54.200 And so it's gonna be interesting to see how that 0:25:54.240 --> 0:25:57.680 plays out going forward, because of course a lot of 0:25:57.720 --> 0:26:00.359 those transmission lines also have to be light it's been 0:26:00.440 --> 0:26:04.760