Speaker 1: Is the judicial system grinding to a halt. Today on
Speaker 1: Parts Rebellion, we talk about all the environmental litigation that
Speaker 1: could essentially be frozen because of the global pandemic. Hello,
Speaker 1: and welcome back once again to Parts Pervillion, the environmental
Speaker 1: podcast from Bloomberg Law. And welcome back once again to
Speaker 1: my spare bedroom where I'm recording this episode. And if
Speaker 1: the upstairs neighbors turn on their vacuum, then my apologies
Speaker 1: for that. So I don't think it's news to anyone
Speaker 1: that the global coronavirus pandemic, which as of today March
Speaker 1: twenty fifth, has infected more than forty two thousand people
Speaker 1: in the US alone, has changed some things. The federal courts,
Speaker 1: which is what our focus is today, might be going
Speaker 1: into hibernation to prevent the spread of the disease, but
Speaker 1: the environment doesn't sleep. So that means all the environmental
Speaker 1: litigation that we talk about here so often on Parts
Speaker 1: Pervillion is well, who knows you know? Who? Do us? No? Actually,
Speaker 1: Bloomberg Laws, Allen Gilmer and Ellen is with us today.
Speaker 1: So Ellen, we went over this before on our sister podcast,
Speaker 1: Cases and Controversies, which if you're into the Supreme Court.
Speaker 1: I would definitely recommend checking out. But can you just,
Speaker 1: you know, sort of talk about really briefly what some
Speaker 1: of the courts have been doing in response to the
Speaker 1: virus and the changes that they've made. Sure, so just
Speaker 1: broadly speaking, you know, the courts have been doing a
Speaker 1: lot to respond to the pandemic. A lot of courthouses
Speaker 1: have closed their doors to the public. The Supreme Court
Speaker 1: has postponed several oral arguments that were scheduled. The DC
Speaker 1: Circuit has done the same, and it's holding some other
Speaker 1: arguments by teleconference by phone. Other circuits are also doing
Speaker 1: the same thing. They're either postponing cases or looking at
Speaker 1: their options for holding them, for holding arguments in sort
Speaker 1: of a non traditional way, or sometimes deciding cases without
Speaker 1: oral arguments. So they're just saying, you know, we were
Speaker 1: going to have an oral argument and now we're not.
Speaker 1: Let's just not do that. Well, and that's just something
Speaker 1: that happens occasionally in appellate courts. I haven't seen that
Speaker 1: happen yet, but they're looking at that as one of
Speaker 1: their options for how to deal with all these canceled
Speaker 1: in person proceedings. And then everything else, I guess it's
Speaker 1: just done by paper and filings and things like that,
Speaker 1: so that can just sort of go forth the same way,
Speaker 1: right exactly, although a lot of attorneys are asking for
Speaker 1: deadline extensions and stuff because everybody's dealing with sort of
Speaker 1: disrupted schedules. Yeah, let's talk about specifically environmental cases that
Speaker 1: have been affected by this. What cases have been affected
Speaker 1: and what happened in those cases. So the biggest disruption
Speaker 1: so far is to a big case at the DC
Speaker 1: Circuit that has to do with pipelines. We have talked
Speaker 1: about it on the Parts Pavilion podcast before. It has
Speaker 1: to do with basically when can pipeline opponent get to
Speaker 1: court when it's challenging and approval by federal regulators. This
Speaker 1: was a big case. We know it was a big
Speaker 1: case because the DC Circuit was going to hear it
Speaker 1: on bank, meaning before all the active judges. That doesn't
Speaker 1: happen very often. It was scheduled to be heard on
Speaker 1: March thirty first. So far they've just postponed it about
Speaker 1: a month. So it remains to be seen whether that
Speaker 1: date in late April is really going to happen or
Speaker 1: if they're going to do it by teleconference. Which they
Speaker 1: have done for another recent case, or do something else.
Speaker 1: And then there's another pipeline case, but this one gets
Speaker 1: into a specific pipeline instead of sort of the federal
Speaker 1: governments pipeline approval process. Can you talk a little bit
Speaker 1: about that. Yeah, So we had an interesting situation recently
Speaker 1: where there was a pretty high stakes hearing that was
Speaker 1: scheduled for the Dakota Access oil pipeline. Dakota Access runs
Speaker 1: from North Dakota to Illinois. But it did spawn just
Speaker 1: huge protests, thousands of people camping out in North Dakota
Speaker 1: to oppose the project, really driven by tribes and tribal
Speaker 1: advocates who were opposed to the So there's the Dakota
Speaker 1: Access pipeline case that's been affected. There's also a case
Speaker 1: from the Flint water crisis, which by the way, is
Speaker 1: still being litigated, and that's been affected as well. Yeah,
Speaker 1: that's right. The Sixth Circuit, which is the appellate court
Speaker 1: that's based in Cincinnati, it was scheduled to hear all
Speaker 1: arguments in one of these appeals that stems from the
Speaker 1: Flint water crisis just in mid March, and the same
Speaker 1: court was supposed to hear another yet another pipeline case
Speaker 1: a pipeline safety case a few days later, and both
Speaker 1: of those were canceled. They haven't been rescheduled yet, and
Speaker 1: so we don't know what's going to happen with those,
Speaker 1: all right, So we're going to take a quick break now,
Speaker 1: but when we come back, we're going to get way
Speaker 1: more into the Dakota pipeline case, and Ellen is going
Speaker 1: to tell us about a pretty surreal hearing that she
Speaker 1: attended earlier this week. Don't go anywhere, all right, we're
Speaker 1: back and we're talking with Ellen Gilmer about the environmental
Speaker 1: litigation that's been canceled, postponed, delayed as a result of
Speaker 1: the coronavirus pandemic. So let's talk specifically about the Dakota
Speaker 1: pipeline case. You had to go to a hearing in
Speaker 1: this case recently, but I imagine this was a very
Speaker 1: bizarre scenario. Can you set the scene for us here? Sure? So,
Speaker 1: instead of delaying a big high stakes hearing in the
Speaker 1: Dakota Access litigation, the District Court in DC decided to
Speaker 1: go ahead with it. This is a case that's been
Speaker 1: going on forever at this point, tribes are still trying
Speaker 1: to shut down this pipeline that is in service now
Speaker 1: pumping oil from North Dakota to Illinois. So they're still
Speaker 1: trying to shut it down. They've challenged the latest federal
Speaker 1: review for the pipeline, and they had a big hearing
Speaker 1: scheduled on March eighteen. Instead of delaying the hearing like
Speaker 1: a lot of courts were doing that week and are
Speaker 1: still doing, the court decided to do it all by
Speaker 1: teleconference and he ordered the judge ordered all of the
Speaker 1: lawyers to call in by phone. That makes sense. Problem
Speaker 1: for me, a member of the media is they won't
Speaker 1: just hand out that conference call number, and they also
Speaker 1: wouldn't live stream the proceedings or offer any kind of
Speaker 1: live audio or anything like that. Of course. So yeah,
Speaker 1: so the courthouse is closed to the public, but it's
Speaker 1: still open to the media. So I went to a
Speaker 1: very weird court hearing in which I sat in a
Speaker 1: big courtroom with the judge presiding, wearing his robe like usual,
Speaker 1: presiding like it was normal, but he was presiding over
Speaker 1: a conference call. So I'm picturing, I'm picturing the podium
Speaker 1: where the attorneys would talk, and I'm just picturing like
Speaker 1: a speaker. Is that what it was? No? I mean
Speaker 1: he just had some sort of you know, your standard
Speaker 1: office phone line set up and court staff. There were
Speaker 1: a couple of court staff members in there, and they
Speaker 1: were the ones who were actually pressing all the buttons
Speaker 1: and doing that. And then there were two people in
Speaker 1: the spectator section, myself and another reporter, and it was
Speaker 1: just a big empty room and we listened to a
Speaker 1: phone call. I guess you had to. I imagine you
Speaker 1: didn't sit next that close to the other reporter. You
Speaker 1: kept your social distancing right. Oh, yes, we all stayed
Speaker 1: very far apart. I came armed with hand sanitizer and wipes.
Speaker 1: I wiped down my whole seat before I sat out
Speaker 1: of an abundance of caution. Yeah. So that's that's really strange,
Speaker 1: and I think it shows how the courts are kind
Speaker 1: of taking I don't want to say half measures, but
Speaker 1: I think, are you know, inventing the plan as they
Speaker 1: implement the plan here where you know, they have the
Speaker 1: attorneys on speaker phone. They don't want the attorneys to
Speaker 1: come in, but they don't make a plan for members
Speaker 1: of the public or the press, you know, people in
Speaker 1: our profession, on how to get this information to them
Speaker 1: as well. That's right. You know, the court had to
Speaker 1: figure out a plan for this in a short amount
Speaker 1: of time, just a couple of days. The district Court
Speaker 1: in d C doesn't usually offer any kind of audio streaming,
Speaker 1: but the d C Circuit, which is in the exact
Speaker 1: same federal courthouse, it does. So we were really hoping,
Speaker 1: we members of the media were really hoping that the
Speaker 1: court would be able to offer the audio live streaming
Speaker 1: for this. But at the end of the day, they weren't.
Speaker 1: They didn't provide a reason, but they weren't able to
Speaker 1: do it, and that meant, you know, these myself and
Speaker 1: this other reporter were able to be in there, but
Speaker 1: no other press were in there because presumably they were
Speaker 1: following work from home orders from their offices, and also
Speaker 1: members of the public did not have any access to them.
Speaker 1: The best the court could offer was, well, you can
Speaker 1: pay for the transcript once it's available, right, which which
Speaker 1: could be weeks from now possibly. So let's talk about
Speaker 1: the case itself. You know, it seems like the judge
Speaker 1: in this case is really motivated to keep this going.
Speaker 1: What is the significance here? Why is why did they
Speaker 1: take these extraordinary measures to have this hearing, and what
Speaker 1: will happen if they ultimately sort of, you know, wave
Speaker 1: the white flag and say, all right, we have to
Speaker 1: delay this this, We just can't keep doing this like this. Well,
Speaker 1: at this point, all of the in person proceedings that
Speaker 1: need to happen have happened, So now it's just on
Speaker 1: the judge to write an opinion, so he can sit
Speaker 1: at home or in his office and do that. But
Speaker 1: you know, there was pressure to keep the case on
Speaker 1: schedule because the litigation has been going on for so long,
Speaker 1: because the court a couple of years ago, three years ago,
Speaker 1: ordered the federal government to do an added level of
Speaker 1: environmental review. The government did that, and the tribes said
Speaker 1: that environmental review it's still insufficient, and so that's what
Speaker 1: the current you know, dispute is based on. And they've
Speaker 1: just been fighting it for so long. They really want
Speaker 1: to shut off the flow of oil. The pipeline runs
Speaker 1: about a half mile from the Standing Rock Sioux Reservation
Speaker 1: in North Dakota. The tribe doesn't think the federal government
Speaker 1: and the pipeline operator have done enough analysis of various
Speaker 1: oil spill risks, so they'd like to shut off the
Speaker 1: flow of oil and that's what they're pushing the court
Speaker 1: to do. So the longer a decision gets delayed, you know,
Speaker 1: the longer it goes that they don't have an opportunity
Speaker 1: to get that relief that they're seeking. Okay, wrapping things
Speaker 1: up here, though, let's talk big picture. We're talking about
Speaker 1: specific cases. You know, we have a handful of cases
Speaker 1: that have been delayed. But how long can this go
Speaker 1: on for? I mean, you spoke with John Cruden, who
Speaker 1: is one of the uh, you know, country's premier environmental attorneys.
Speaker 1: He was the head of the Department of Justice's Environmental
Speaker 1: Division back in the Obama administration. He said that courts
Speaker 1: can handle a few weeks that they've done this before,
Speaker 1: you know, after natural disasters or after nine to eleven,
Speaker 1: but that the courts can't really handle a few months
Speaker 1: of this. What if what if this is for a
Speaker 1: few months, what's going to happen? Well, I imagine courts
Speaker 1: will really speed up their embrace of technology. For one,
Speaker 1: we all have, right, but there are some priorities that
Speaker 1: they'll have to I mean, they'll have to make some
Speaker 1: decisions and prioritize things. So criminal cases generally have priority.
Speaker 1: You know, people have a right to a speedy trial
Speaker 1: and all this and most of most of the environmental
Speaker 1: cases that we cover are not criminal cases. Correct. Occasionally
Speaker 1: there are environmental criminal cases, but generally where you are
Speaker 1: covering civil cases, so those are not going to be
Speaker 1: top price already. That doesn't mean they'll be set aside,
Speaker 1: but it does mean that if the court is struggling
Speaker 1: to you know, handle its full docket, that that's not
Speaker 1: going to be the first thing it gets done on
Speaker 1: its list. And then, you know, urgent motions like if
Speaker 1: a party is filing a motion for a preliminary injunction
Speaker 1: or restraining order to block a project in its tracks,
Speaker 1: those things will still probably get decided quickly. You know.
Speaker 1: Judges can can handle those just through you know, the
Speaker 1: filing of briefs online. Judges can read those briefs and
Speaker 1: issue their decisions online if they need to hear oral argument.
Speaker 1: You know, it depends on how much technology they're embracing,
Speaker 1: but I don't expect that, you know, a technological issue
Speaker 1: would stop them from deciding a really urgent matter. And
Speaker 1: then really quickly, let's talk about rule making. You know,
Speaker 1: the Trump administration is defending a lot of its environmental rules.
Speaker 1: I'm thinking of a rule that governs power plant emissions,
Speaker 1: clean water emissions from automobiles and other motor vehicles. Is
Speaker 1: this delay good or bad for them? I'm genuinely confused
Speaker 1: and not really sure if this helps or hurts the administration.
Speaker 1: So it's generally not thought to be a good thing
Speaker 1: for the administration. And here's why. Basically, the like you mentioned,
Speaker 1: the administration has finalized all these environmental regulations. Most of
Speaker 1: them are either rollbacks or kind of weakened replacements for
Speaker 1: Obama era rules. Some go back farther to things that
Speaker 1: pre date the Obama administration. The Trump administration has an
Speaker 1: interest in decide or getting these things litigated quickly because
Speaker 1: if they get an adverse decision from say the DC Circuit,
Speaker 1: they want to be totally sure. They're the ones who
Speaker 1: are going to be in office to file a cert petition,
Speaker 1: file an appeal, to take follow up action once they
Speaker 1: get a decision. So, for example, the power plant rule
Speaker 1: you mentioned, that's the Affordable Clean Energy role from EPA,
Speaker 1: the Trump administration has said, we want to litigate this quickly.
Speaker 1: We have an interest in getting this done fast. And
Speaker 1: when you say done fast, it means They essentially they
Speaker 1: want to get it to the Supreme Court as soon
Speaker 1: as possible before the end of the president's term, correct
Speaker 1: in case there's a change in administration, so they want
Speaker 1: to get it. They want a decision from the DC
Speaker 1: Circuit basically this calendar year, so that if it's if
Speaker 1: it's a decision that's not in their favor, they have
Speaker 1: a chance to file a cert petition and the Supreme
Speaker 1: Court can take it up. Honestly, the timeline for a
Speaker 1: lot of these cases has already slipped, so it was
Speaker 1: already looking like the Trump administration wasn't going to be
Speaker 1: able to get that ideal timeline for the litigation. However,
Speaker 1: you know, extra even an extra few weeks, it doesn't help.
Speaker 1: It shouldn't affected a whole lot. So the Affordable Clean
Speaker 1: Energy Rule case, that's the power plant case, they just
Speaker 1: delayed yesterday. They just delayed the timeline by a few
Speaker 1: weeks for briefs, and the DC Circuit still has to
Speaker 1: hear all arguments in that case in the fall. So
Speaker 1: we're probably not looking at a big difference there. I mean,
Speaker 1: the way the courts typically work, a delay of a
Speaker 1: few weeks could have happened even without a global pandemic,
Speaker 1: you know, totally. Yes, their delays are very common here. Yes,
Speaker 1: all right, that is it for today's episode of Parts
Speaker 1: Pervilion Ellen and our other reporters have been doing amazing
Speaker 1: work during this crazy time, so check out their great
Speaker 1: work at our website newsdop Bloomberg Environment dot com. That website,
Speaker 1: once again is newstot Bloomberg environment dot com. Today's episode
Speaker 1: of Parts Pavilion was produced by myself along with Josh
Speaker 1: Block and Marissa Horn. Parts Pabillion was created by Jessica
Speaker 1: Coombs and Rachel Dago. The music for today's episode is
Speaker 1: a Message by Jazarre and Ghost by Tom Thumb. They
Speaker 1: were used under a Creative Comments license. Thank you everyone
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