1
00:00:03,560 --> 00:00:08,360
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

2
00:00:09,640 --> 00:00:12,640
Speaker 1: I too, am on a path in which there have

3
00:00:12,880 --> 00:00:17,479
Speaker 1: been and will be highs and lows. In reaching this

4
00:00:17,600 --> 00:00:22,079
Speaker 1: incredible milestone, I have already benefited from great good fortune,

5
00:00:22,560 --> 00:00:25,079
Speaker 1: and as I undertake the role of an associate Justice,

6
00:00:25,280 --> 00:00:27,960
Speaker 1: there is no doubt that I will have my share

7
00:00:28,360 --> 00:00:33,440
Speaker 1: of pure bad luck. Following the formal investiture ceremony to

8
00:00:33,520 --> 00:00:37,880
Speaker 1: mark her arrival last Friday, Justice Katangi Brown Jackson told

9
00:00:37,880 --> 00:00:41,120
Speaker 1: a cheering audience at the Library of Congress that as

10
00:00:41,159 --> 00:00:44,720
Speaker 1: the first black female justice, she feels like a role

11
00:00:44,760 --> 00:00:47,839
Speaker 1: model for a younger generation. I have a seat at

12
00:00:47,880 --> 00:00:51,559
Speaker 1: the table now, and I'm ready to work. And she

13
00:00:51,640 --> 00:00:54,280
Speaker 1: did just that in her first two days on the bench.

14
00:00:54,680 --> 00:00:57,800
Speaker 1: Unlike other justices who have taken a back seat during

15
00:00:57,840 --> 00:01:02,440
Speaker 1: their first oral arguments, Justice Jackson jumped right in, asking

16
00:01:02,560 --> 00:01:06,319
Speaker 1: lots of questions and follow ups, laying out her own views,

17
00:01:06,720 --> 00:01:10,920
Speaker 1: and even taking on her more conservative colleagues. In other words,

18
00:01:11,240 --> 00:01:14,440
Speaker 1: the rookie justice schooled the court. Let me, let me

19
00:01:14,520 --> 00:01:17,560
Speaker 1: try to bring some enlightenment to it by asking it

20
00:01:17,640 --> 00:01:20,480
Speaker 1: this way. Joining me is Bloomberg News. Supreme Court reporter

21
00:01:20,560 --> 00:01:24,840
Speaker 1: Greg's store. So Greg, she really dominated these first two

22
00:01:24,920 --> 00:01:28,279
Speaker 1: days of arguments. In her first oral argument, she spoke

23
00:01:28,319 --> 00:01:31,480
Speaker 1: more than twenty one times. Yes, she has been a

24
00:01:31,600 --> 00:01:34,840
Speaker 1: very outspoken in court, and she's been very willing to

25
00:01:34,920 --> 00:01:37,280
Speaker 1: kind of stake out of position. In that first case

26
00:01:37,319 --> 00:01:40,520
Speaker 1: involved the scope of the Clean Water Act and whether

27
00:01:40,600 --> 00:01:44,759
Speaker 1: it covers this property in Idaho that is nearby a lake,

28
00:01:44,800 --> 00:01:48,000
Speaker 1: in nearby a tributary to a lake, but doesn't directly

29
00:01:48,000 --> 00:01:50,600
Speaker 1: abut the lake. And she made pretty clear in that

30
00:01:50,640 --> 00:01:53,200
Speaker 1: case that her reading of the Clean Water Act was

31
00:01:53,280 --> 00:01:56,920
Speaker 1: that it covered this sort of property. She's done that

32
00:01:56,960 --> 00:02:01,320
Speaker 1: in other cases too. She's very different from predecessor Stephen Bryer,

33
00:02:01,440 --> 00:02:04,560
Speaker 1: who was much more openly kind of agonizing about how

34
00:02:04,560 --> 00:02:06,840
Speaker 1: he might come down in a case. She's been pretty clear.

35
00:02:07,040 --> 00:02:11,760
Speaker 1: Often the newest justices told back a little You're right

36
00:02:11,840 --> 00:02:15,760
Speaker 1: that they have generally been or frequently been a little

37
00:02:15,760 --> 00:02:19,840
Speaker 1: more reticent, you know. One difference is that Justice Jackson

38
00:02:20,000 --> 00:02:23,280
Speaker 1: has had months to prepare for this opening week of

39
00:02:23,360 --> 00:02:26,400
Speaker 1: the term. Some of the other justices when they joined

40
00:02:26,400 --> 00:02:29,200
Speaker 1: the court, like the two most recent ones, Justice Cavan,

41
00:02:29,440 --> 00:02:33,000
Speaker 1: Justice Barrett, joined the court after the term had already started.

42
00:02:33,160 --> 00:02:36,080
Speaker 1: So you know, not every justice is the same. Certainly

43
00:02:36,160 --> 00:02:39,160
Speaker 1: many of them come prepared and ready, but she is

44
00:02:39,440 --> 00:02:42,760
Speaker 1: especially so especially ready to jump right in. I think

45
00:02:42,800 --> 00:02:45,480
Speaker 1: a lot of people wanted to hear her voice and

46
00:02:45,639 --> 00:02:50,960
Speaker 1: questioning on the Alabama redistricting case involving racial jerrymandering. Tell

47
00:02:51,040 --> 00:02:54,320
Speaker 1: us about her questioning there or her comments. Yes, she

48
00:02:54,440 --> 00:02:56,760
Speaker 1: was very clear on a number of fronts there. I

49
00:02:56,760 --> 00:02:59,640
Speaker 1: think most striking to me she took him at this

50
00:02:59,680 --> 00:03:03,440
Speaker 1: notion and that the Constitution is color blind and requires

51
00:03:03,520 --> 00:03:07,080
Speaker 1: color blindness when states are doing redistricting. And she talked

52
00:03:07,120 --> 00:03:09,800
Speaker 1: about the history and the purpose of the post Civil

53
00:03:09,840 --> 00:03:13,280
Speaker 1: War amendments, the fourteen from the fifteenth and that includes

54
00:03:13,400 --> 00:03:16,760
Speaker 1: equal protection clause in the fourteenth Pendment, and she said,

55
00:03:17,040 --> 00:03:19,840
Speaker 1: you know, those were clearly race conscerts. Those were and

56
00:03:20,000 --> 00:03:22,800
Speaker 1: statutes that were enacted at the time were passed with

57
00:03:22,840 --> 00:03:27,320
Speaker 1: an eye towards helping explicitly black people freed slaves. And

58
00:03:27,639 --> 00:03:31,640
Speaker 1: she laid that out at some length. And you know,

59
00:03:31,720 --> 00:03:34,680
Speaker 1: that's very likely going to be putting her in conflict

60
00:03:34,720 --> 00:03:37,720
Speaker 1: head on with some of the more conservative justices, both

61
00:03:37,760 --> 00:03:40,920
Speaker 1: in this case and in the college affirmative action case.

62
00:03:40,960 --> 00:03:42,800
Speaker 1: The Court will be hearing in a few weeks. Did

63
00:03:42,840 --> 00:03:47,240
Speaker 1: she specifically take on some of the conservative justices, either

64
00:03:47,680 --> 00:03:51,960
Speaker 1: directly or indirectly. Yeah. Start with the Clean Water Act case.

65
00:03:52,040 --> 00:03:55,760
Speaker 1: There was an interesting moment there where Justice Gorset's, one

66
00:03:55,760 --> 00:03:59,480
Speaker 1: of the Conservatives, was suggesting that people were at risk

67
00:03:59,600 --> 00:04:03,280
Speaker 1: of all penalties being put in jail for violating the

68
00:04:03,320 --> 00:04:06,240
Speaker 1: Clean Water Act without having a chance to really understand

69
00:04:06,680 --> 00:04:10,720
Speaker 1: what the statute covered, and that prompted her to prod

70
00:04:10,840 --> 00:04:14,200
Speaker 1: the Justice Department lawyers to say, actually, there's a process

71
00:04:14,240 --> 00:04:16,840
Speaker 1: that people can use to go to regulators and get

72
00:04:16,839 --> 00:04:19,640
Speaker 1: a determination about whether they think they have jurisdiction over

73
00:04:19,800 --> 00:04:22,440
Speaker 1: a piece of property. So she said there's no risk

74
00:04:22,640 --> 00:04:25,640
Speaker 1: or exactly words, so you're not really facing criminal liability

75
00:04:25,680 --> 00:04:28,480
Speaker 1: without the opportunity to get an assessment from the government

76
00:04:28,720 --> 00:04:33,960
Speaker 1: regarding your particular circumstances, so directly rebutting Justice Corset. And

77
00:04:34,000 --> 00:04:37,160
Speaker 1: then in the voting rights case, she had an interesting

78
00:04:37,240 --> 00:04:40,279
Speaker 1: question where she juxtaposed her spaking with what Justice Sammy

79
00:04:40,320 --> 00:04:43,000
Speaker 1: Coney Barrett had just expressed and basically asked the lawyer

80
00:04:43,040 --> 00:04:44,799
Speaker 1: to say, which of the two was bringing the issue

81
00:04:44,839 --> 00:04:46,880
Speaker 1: the right way. I know she wasn't on the DC

82
00:04:47,040 --> 00:04:49,760
Speaker 1: Circuit Court of Appeals too long. But do you know

83
00:04:49,800 --> 00:04:53,719
Speaker 1: if she was this aggressive on the DC Circuit. I

84
00:04:53,839 --> 00:04:57,120
Speaker 1: do not know, June. You know, one big difference between

85
00:04:57,560 --> 00:05:01,560
Speaker 1: most Appeals Court hearings and the Supreme Court argument is

86
00:05:01,600 --> 00:05:03,880
Speaker 1: that in the Appeals Court there's only three judges there

87
00:05:03,960 --> 00:05:06,680
Speaker 1: unless the court is sitting on bank, and so a

88
00:05:06,839 --> 00:05:09,400
Speaker 1: judge is more likely to take up a huge chunk

89
00:05:09,520 --> 00:05:12,240
Speaker 1: of the Here, she's just one of nine justices, but

90
00:05:12,440 --> 00:05:14,760
Speaker 1: spoke more than any other justice in the four arguments

91
00:05:14,760 --> 00:05:17,400
Speaker 1: as we really took up a significant portion of the time.

92
00:05:17,920 --> 00:05:21,600
Speaker 1: I'm wondering did her voice dominate so much that it

93
00:05:21,720 --> 00:05:24,880
Speaker 1: seemed perhaps a little over the top, and will it

94
00:05:24,920 --> 00:05:28,040
Speaker 1: means she's less likely to be able to negotiate behind

95
00:05:28,040 --> 00:05:31,520
Speaker 1: the scenes. Let's say, then Justice Kagan is yet well,

96
00:05:31,560 --> 00:05:33,920
Speaker 1: she was not putting herself out there to be somebody

97
00:05:33,920 --> 00:05:36,599
Speaker 1: who was trying to bridge the differences. That is for sure.

98
00:05:36,920 --> 00:05:39,920
Speaker 1: That's the rule that as you say, Justice Kagan often plays,

99
00:05:40,000 --> 00:05:42,640
Speaker 1: and we even saw that with Justice so to Mayor

100
00:05:42,720 --> 00:05:46,200
Speaker 1: in one of the cases this week. Justice Manyore most

101
00:05:46,240 --> 00:05:48,000
Speaker 1: of the time in the past has kind of done

102
00:05:48,040 --> 00:05:50,760
Speaker 1: what Justice Jackson did, which is clearly stake out of position,

103
00:05:51,120 --> 00:05:52,960
Speaker 1: even kind of make the case that the other side

104
00:05:53,040 --> 00:05:55,880
Speaker 1: is looking at it all wrong. You know, it's hard

105
00:05:55,920 --> 00:05:59,640
Speaker 1: to say exactly how this will affect Justice Jackson's role

106
00:06:00,080 --> 00:06:02,200
Speaker 1: in the court. And of course this is all brand

107
00:06:02,279 --> 00:06:04,560
Speaker 1: new and it's going to evolve, and you know, I

108
00:06:04,600 --> 00:06:06,560
Speaker 1: don't think anybody is going to get too locked in

109
00:06:06,680 --> 00:06:11,040
Speaker 1: at this early stage. Now, Liberal writer Ian Millheiser, a

110
00:06:11,160 --> 00:06:13,479
Speaker 1: Vox situeeted give her a chance, and she's going to

111
00:06:13,560 --> 00:06:18,000
Speaker 1: burn Scalia's legacy to the ground. But her style is

112
00:06:18,160 --> 00:06:22,320
Speaker 1: very different from Justice Scalia is, isn't it. Well, it's

113
00:06:22,440 --> 00:06:24,960
Speaker 1: very different certainly, you know, so far as she's not

114
00:06:25,040 --> 00:06:28,280
Speaker 1: as prone to wisecracks exactly. But I will say this,

115
00:06:28,440 --> 00:06:30,679
Speaker 1: you know, one thing I was really interested to see

116
00:06:30,720 --> 00:06:34,720
Speaker 1: because we've not seen her in this role at all before.

117
00:06:34,960 --> 00:06:37,160
Speaker 1: You know, we saw her at the confirmation testimony where

118
00:06:37,200 --> 00:06:39,320
Speaker 1: she talked about her role as a lower court judge,

119
00:06:39,320 --> 00:06:42,359
Speaker 1: where she's applying precedent and applying to the law, to

120
00:06:42,400 --> 00:06:45,000
Speaker 1: the facts of a case. We haven't seen her be

121
00:06:45,040 --> 00:06:47,800
Speaker 1: in a position where she might be an advocate for something.

122
00:06:47,839 --> 00:06:50,080
Speaker 1: And she is starting to sound, at least in this

123
00:06:50,160 --> 00:06:52,840
Speaker 1: first week, like more of an advocate and more of

124
00:06:52,880 --> 00:06:56,400
Speaker 1: the kind of voice that the people who strongly supported

125
00:06:56,440 --> 00:06:59,920
Speaker 1: her we're looking for. And that's unlike what most Supreme

126
00:07:00,000 --> 00:07:02,919
Speaker 1: where justices do, even when they've been on the bench

127
00:07:02,960 --> 00:07:06,560
Speaker 1: for a long time. Yes, although you certainly see that

128
00:07:06,600 --> 00:07:09,600
Speaker 1: with some of them, you know, you certainly would see

129
00:07:09,640 --> 00:07:12,760
Speaker 1: Justice Scalia, you know, advocating for things up there. You

130
00:07:12,760 --> 00:07:16,640
Speaker 1: certainly see justice. So do Mayor doing it. And especially

131
00:07:16,680 --> 00:07:19,960
Speaker 1: at this moment where some of these cases there is

132
00:07:20,000 --> 00:07:22,680
Speaker 1: this kind of feeling of inevitability. You note which way

133
00:07:22,720 --> 00:07:25,080
Speaker 1: the Court's going to go. The Conservatives have a six

134
00:07:25,120 --> 00:07:28,720
Speaker 1: free majority, and so the liberal justices may well be

135
00:07:28,880 --> 00:07:32,200
Speaker 1: looking at the arguments as here is my chance to

136
00:07:32,240 --> 00:07:34,760
Speaker 1: say out loud, why what it seems like the majority

137
00:07:34,840 --> 00:07:38,120
Speaker 1: is about to do is totally wrong. Yeah, many people

138
00:07:38,160 --> 00:07:40,920
Speaker 1: are predicting a lot of six to three decisions this term.

139
00:07:41,000 --> 00:07:43,080
Speaker 1: But we'll have to see, and we'll see how active

140
00:07:43,080 --> 00:07:47,040
Speaker 1: a question er Justice Jackson is during next week's oral arguments.

141
00:07:47,080 --> 00:07:50,360
Speaker 1: Thanks so much, Greg, That's Bloomberg News Supreme Court reporter

142
00:07:50,480 --> 00:07:55,240
Speaker 1: Greg Store. This month marks the fiftieth anniversary of the

143
00:07:55,320 --> 00:07:57,600
Speaker 1: Clean Water Act, which has been called one of the

144
00:07:57,640 --> 00:08:01,880
Speaker 1: most influential modern environmental laws, and one of the first

145
00:08:01,960 --> 00:08:05,720
Speaker 1: cases on the Supreme Court's docket this term is one

146
00:08:05,760 --> 00:08:08,760
Speaker 1: that could limit the reach of the Act. It's a

147
00:08:08,800 --> 00:08:11,720
Speaker 1: case in which an Idaho couple is waging a fifteen

148
00:08:11,840 --> 00:08:15,000
Speaker 1: year battle to build a house about three hundred feet

149
00:08:15,080 --> 00:08:19,040
Speaker 1: from Priest Lake in northern Idaho on land that federal

150
00:08:19,120 --> 00:08:23,440
Speaker 1: regulators say is protected wetlands. My guest is Professor Pat

151
00:08:23,440 --> 00:08:27,000
Speaker 1: Parento of the Vermont Law School. So what's been the

152
00:08:27,000 --> 00:08:31,760
Speaker 1: effect of the Clean Water Act in the last fifty years. Well,

153
00:08:31,800 --> 00:08:34,920
Speaker 1: the biggest benefit from the Clean Water Act has been

154
00:08:35,000 --> 00:08:38,360
Speaker 1: cleaning up sewage and it took over ten billion dollars

155
00:08:38,400 --> 00:08:41,360
Speaker 1: of federal money, which these days doesn't even sound like

156
00:08:41,400 --> 00:08:44,360
Speaker 1: that much, right, But the seventies and eighties, you know,

157
00:08:44,480 --> 00:08:49,360
Speaker 1: Congress was appropriating up to nine grants to the states

158
00:08:49,720 --> 00:08:52,920
Speaker 1: to install through each treatment plants which which we're turning

159
00:08:52,920 --> 00:08:57,079
Speaker 1: our rivers into open sewers literally. So one big benefit

160
00:08:57,320 --> 00:09:01,320
Speaker 1: of the Clean Water Act has been reducing municipal pollution.

161
00:09:01,400 --> 00:09:06,360
Speaker 1: The second one would be industrial pollution through the wastewater

162
00:09:06,440 --> 00:09:11,360
Speaker 1: Discharge Permit program. And what we have there is probably

163
00:09:11,520 --> 00:09:16,360
Speaker 1: something on the order of compliance by industries of all

164
00:09:16,440 --> 00:09:20,800
Speaker 1: kinds with these standards, these technology standards designed to remove

165
00:09:21,360 --> 00:09:25,360
Speaker 1: both toxic and non toxic pollutants from the water. That's

166
00:09:25,360 --> 00:09:28,560
Speaker 1: been a success. Where the Clean Water Act has failed

167
00:09:28,640 --> 00:09:31,800
Speaker 1: to achieve water qualities throughout the country is for what

168
00:09:31,840 --> 00:09:35,800
Speaker 1: we call non point source pollution runoff from agriculture and

169
00:09:35,880 --> 00:09:39,319
Speaker 1: forestry and roads and other things. And the thing about

170
00:09:39,360 --> 00:09:42,560
Speaker 1: that is the Clean Water Act does not regulate non

171
00:09:42,600 --> 00:09:46,800
Speaker 1: point source that's left completely to the states to deal with.

172
00:09:47,120 --> 00:09:49,800
Speaker 1: And the reason we still have about forty five percent

173
00:09:50,160 --> 00:09:52,720
Speaker 1: of the waters of the United States rivers and lakes

174
00:09:52,720 --> 00:09:56,520
Speaker 1: not meeting standards is because of non point source pollution.

175
00:09:56,679 --> 00:09:59,320
Speaker 1: So the point is where the Clean Water Act has

176
00:09:59,400 --> 00:10:04,760
Speaker 1: actually been applied and enforced, we've seen measurable improvement in

177
00:10:04,840 --> 00:10:07,800
Speaker 1: water quality. And where the Clean Water Act has not

178
00:10:08,400 --> 00:10:13,520
Speaker 1: applied and not regulated activities, we've not seen very much progress.

179
00:10:13,559 --> 00:10:16,000
Speaker 1: So that's kind of where we are at the fiftieth anniversary.

180
00:10:16,320 --> 00:10:20,240
Speaker 1: Tell us about this case. It involves the Sackets. It's

181
00:10:20,280 --> 00:10:23,720
Speaker 1: been going on for fifteen years. They've already been to

182
00:10:23,760 --> 00:10:28,040
Speaker 1: the Supreme Court once. Yeah, this is their second trip.

183
00:10:28,120 --> 00:10:31,440
Speaker 1: They're represented by the Pacific Legal Foundation, who's providing pro

184
00:10:31,520 --> 00:10:35,480
Speaker 1: bono free legal services which is fine, but otherwise it

185
00:10:35,480 --> 00:10:37,760
Speaker 1: would have been beyond the means. I think that the

186
00:10:37,840 --> 00:10:41,160
Speaker 1: Packets are almost anybody else. In the first round they

187
00:10:41,240 --> 00:10:44,840
Speaker 1: want the right to challenge. E p A is issuance

188
00:10:44,920 --> 00:10:48,040
Speaker 1: of of a compliance order and enforcement order which told

189
00:10:48,080 --> 00:10:51,400
Speaker 1: the Sackets, you are filling a wetland. Their property is

190
00:10:51,480 --> 00:10:55,480
Speaker 1: right next to within three feet actually of Priest Lake

191
00:10:55,679 --> 00:10:58,760
Speaker 1: in the Idaho Panhandle, a lake, by the way, that's

192
00:10:58,840 --> 00:11:03,160
Speaker 1: renowned for water quality. It's where Lake Tahoe used to

193
00:11:03,200 --> 00:11:05,640
Speaker 1: be in terms of purity, so it's a it's a

194
00:11:05,760 --> 00:11:09,120
Speaker 1: very popular lake anyway. Their property lies close to it,

195
00:11:09,440 --> 00:11:11,880
Speaker 1: and they were filling their property to build a house,

196
00:11:12,240 --> 00:11:14,640
Speaker 1: and the e p A, or might have even have

197
00:11:14,679 --> 00:11:18,400
Speaker 1: been a corp of engineers inspector was kicked off. I

198
00:11:18,440 --> 00:11:21,480
Speaker 1: guess that they were filling their property and somebody showed

199
00:11:21,559 --> 00:11:23,720
Speaker 1: up and took photos and said, you're filling a wetland,

200
00:11:23,920 --> 00:11:27,959
Speaker 1: stop it and restore. In other words, remove the fill

201
00:11:28,559 --> 00:11:31,360
Speaker 1: into the wetland on your property. The Sackets, you know,

202
00:11:31,400 --> 00:11:35,559
Speaker 1: of course, objected and challenge that. They won the first

203
00:11:35,640 --> 00:11:38,120
Speaker 1: round in the Supreme Court. They won the right to

204
00:11:38,360 --> 00:11:43,079
Speaker 1: challenge this compliance order. The law before the first round

205
00:11:43,080 --> 00:11:46,679
Speaker 1: of Sack. It was you could not challenge compliance orders

206
00:11:46,760 --> 00:11:50,280
Speaker 1: until E. P. A actually took a specific enforcement action

207
00:11:50,320 --> 00:11:53,200
Speaker 1: by filing a lawsuit. Right, So the Sackets won an

208
00:11:53,240 --> 00:11:56,920
Speaker 1: important decision from the Supreme Court saying, you have the right.

209
00:11:56,960 --> 00:12:00,200
Speaker 1: Any property owner has the right to challenge this sistion

210
00:12:00,240 --> 00:12:03,040
Speaker 1: of federal jurisdiction. So the SACas did that, and they

211
00:12:03,040 --> 00:12:05,439
Speaker 1: went back to Idaho Federal District Court and they had

212
00:12:05,920 --> 00:12:09,439
Speaker 1: a multi year case with the trial and witnesses and

213
00:12:09,960 --> 00:12:13,560
Speaker 1: administrative record and all of that, and they lost. Okay,

214
00:12:13,600 --> 00:12:17,400
Speaker 1: So the district court in Idaho said, no, this wetland

215
00:12:18,360 --> 00:12:21,520
Speaker 1: is a jurisdictional wetland under the Clean Water Act, and

216
00:12:21,640 --> 00:12:25,240
Speaker 1: explain why. And so the SACas took an appeal to

217
00:12:25,280 --> 00:12:28,199
Speaker 1: the Ninth Circuit. The Ninth could upheld the lower court

218
00:12:28,280 --> 00:12:33,520
Speaker 1: and expanded the reasoning for why this is a federal wetland,

219
00:12:33,559 --> 00:12:37,480
Speaker 1: and they cited the Ninth Circuit cited specifically to Justice

220
00:12:37,640 --> 00:12:43,680
Speaker 1: Kennedy's concurring opinion in this infamous case that we call Rapanos,

221
00:12:43,720 --> 00:12:47,079
Speaker 1: this fractured decision of the Supreme Court where there was

222
00:12:47,120 --> 00:12:51,360
Speaker 1: no majority decision. There was four votes in favor of

223
00:12:51,440 --> 00:12:56,680
Speaker 1: Justice Scalia's what's called plurality opinion four votes in favor

224
00:12:56,800 --> 00:13:02,800
Speaker 1: of Justice, then Justice Stevens dissent, and only one Justice Kennedy,

225
00:13:03,160 --> 00:13:08,320
Speaker 1: concurring in the judgment to reman the case but not

226
00:13:08,559 --> 00:13:13,920
Speaker 1: agreeing with Scalia's test. So, long story short, the Ninth

227
00:13:13,960 --> 00:13:16,600
Speaker 1: Circuit and all the other circuits that have looked at

228
00:13:16,679 --> 00:13:20,760
Speaker 1: this question, which of the tests in the Rapano's case

229
00:13:21,280 --> 00:13:24,400
Speaker 1: controls on the question of federal jurisdiction. All of the

230
00:13:24,440 --> 00:13:26,800
Speaker 1: circuits have said, you look to Kennedy. Some have said

231
00:13:26,880 --> 00:13:29,000
Speaker 1: only Kennedy, because all of them have said, you look

232
00:13:29,040 --> 00:13:32,200
Speaker 1: first to Kennedy. And so the Supreme Court in the

233
00:13:32,280 --> 00:13:36,280
Speaker 1: Sacket case now took review of the Ninth Circuits decision

234
00:13:36,360 --> 00:13:39,520
Speaker 1: and said, basically, just framed the question open ended. Lee,

235
00:13:39,920 --> 00:13:42,960
Speaker 1: did the Ninth Circuit apply the correct path for the

236
00:13:43,040 --> 00:13:47,199
Speaker 1: determining whether this wetland is covered by the Clean Water Act?

237
00:13:47,280 --> 00:13:49,720
Speaker 1: So that's where we are right now. So, Pat, this

238
00:13:50,360 --> 00:13:53,559
Speaker 1: is a bit wonky dealing with how you define certain

239
00:13:53,679 --> 00:13:57,199
Speaker 1: terms in the Clean Water Act. What was the focus

240
00:13:57,360 --> 00:14:00,160
Speaker 1: in the oral arguments? Yeah, I mean there was a

241
00:14:00,160 --> 00:14:04,480
Speaker 1: lot of focus on the question of adjacency and the

242
00:14:04,480 --> 00:14:09,280
Speaker 1: lower courts that this wetland is not only adjacent two

243
00:14:09,440 --> 00:14:12,959
Speaker 1: Priest's Lake, which, which everybody agrees, is what we call

244
00:14:13,000 --> 00:14:17,040
Speaker 1: it traditionally navigable water. It's a water that's subject to

245
00:14:17,120 --> 00:14:21,160
Speaker 1: Congress's Commerce Clause authority. And the wetland, as I said,

246
00:14:21,240 --> 00:14:24,360
Speaker 1: is within three feet of the lake, okay, so it's

247
00:14:24,400 --> 00:14:29,760
Speaker 1: close close proximity. There are developed properties between the Sackets

248
00:14:29,800 --> 00:14:32,760
Speaker 1: property and the lake, So that came up a lot

249
00:14:32,960 --> 00:14:36,880
Speaker 1: in the argument what happens when you have something obstructing

250
00:14:37,240 --> 00:14:40,720
Speaker 1: the flow of water from a particular wetland on on

251
00:14:40,800 --> 00:14:44,000
Speaker 1: someone's property and a navigable water body like Priests Lake,

252
00:14:44,080 --> 00:14:46,320
Speaker 1: So that that that question came up. But there was

253
00:14:46,360 --> 00:14:49,960
Speaker 1: also a question of whether the wetlands Sackets property was

254
00:14:50,040 --> 00:14:55,000
Speaker 1: also adjacent to what some of the justices referred to

255
00:14:55,120 --> 00:15:00,760
Speaker 1: as a tributary of a navigable creek called Callous Spell Creek,

256
00:15:01,640 --> 00:15:04,040
Speaker 1: and what some of the other justice is referred to

257
00:15:04,160 --> 00:15:09,240
Speaker 1: as a ditch. So we have that kind of Yeah,

258
00:15:09,360 --> 00:15:12,120
Speaker 1: is it a tributary or a ditch whatever? The point is,

259
00:15:12,160 --> 00:15:15,160
Speaker 1: there's a second kind of adjacency in this case, and

260
00:15:15,200 --> 00:15:18,720
Speaker 1: that is is it adjacent to this tributary or ditch

261
00:15:18,760 --> 00:15:21,360
Speaker 1: as we call it, right, And there was a lot

262
00:15:21,400 --> 00:15:23,440
Speaker 1: of back and forth and a kind of a search

263
00:15:24,080 --> 00:15:29,920
Speaker 1: for a more precise way of defining adjacency. How far

264
00:15:29,960 --> 00:15:32,560
Speaker 1: away does it go? Justice Gorsage was the one who

265
00:15:32,640 --> 00:15:35,720
Speaker 1: really pushed this really hard. It's what we sometimes call

266
00:15:35,960 --> 00:15:38,000
Speaker 1: how long is the leash on the dog? You know,

267
00:15:38,040 --> 00:15:40,880
Speaker 1: if you're walking a dog, right and the dog is

268
00:15:40,920 --> 00:15:44,000
Speaker 1: on a really long leash and it's around the corner

269
00:15:44,000 --> 00:15:47,360
Speaker 1: and it bites somebody, are you liable? So we have

270
00:15:47,440 --> 00:15:49,920
Speaker 1: these kinds of debates in law school all all the time,

271
00:15:50,160 --> 00:15:55,560
Speaker 1: and Gorsage kept saying, well, is three miles? Is that adjacent?

272
00:15:55,920 --> 00:15:59,280
Speaker 1: Four miles? Two miles? And he kept going like that

273
00:15:59,400 --> 00:16:02,360
Speaker 1: until he find gave up, and the Solicitor General said, well,

274
00:16:02,480 --> 00:16:05,720
Speaker 1: it's not that simple, okay. You know what he's used

275
00:16:05,760 --> 00:16:11,800
Speaker 1: as a test of reasonable proximity, and lots of discussion

276
00:16:11,840 --> 00:16:18,880
Speaker 1: about what that means. Probably no clear emerging majority from

277
00:16:18,920 --> 00:16:24,400
Speaker 1: the justices on whether they were ready to accept a

278
00:16:24,480 --> 00:16:29,760
Speaker 1: reasonable proximity test for adjacency, but that the adjacentcy issue

279
00:16:29,800 --> 00:16:34,840
Speaker 1: got a lot of discussion. This is Justice Katangi Brown

280
00:16:34,960 --> 00:16:39,720
Speaker 1: Jackson's first oral argument as a justice, and a lot

281
00:16:39,760 --> 00:16:43,280
Speaker 1: of times in the beginning justices whole back but she

282
00:16:43,520 --> 00:16:47,360
Speaker 1: was an active question. As they say, Oh boy, she

283
00:16:47,440 --> 00:16:52,280
Speaker 1: ever fourth question. Fourth question came from Justice Jackson, amazing

284
00:16:52,440 --> 00:16:55,000
Speaker 1: for her very first oral argument on the Supreme Course.

285
00:16:55,000 --> 00:16:59,000
Speaker 1: You didn't waste any time, and she pressed her questions.

286
00:16:59,080 --> 00:17:01,600
Speaker 1: I mean, I would say she's forward leaning in the

287
00:17:01,600 --> 00:17:04,600
Speaker 1: direction of the government's position on this case. But she

288
00:17:04,680 --> 00:17:07,080
Speaker 1: asked hard questions of both sides, and like I said,

289
00:17:07,280 --> 00:17:10,320
Speaker 1: several times she interjected herself, so she she was not

290
00:17:10,440 --> 00:17:13,919
Speaker 1: at all reluctant to get right in there right away.

291
00:17:14,280 --> 00:17:17,600
Speaker 1: Could this turn out to be another West Virginia v.

292
00:17:17,760 --> 00:17:21,080
Speaker 1: E p A. I don't think it's gonna go in

293
00:17:21,160 --> 00:17:25,040
Speaker 1: the same way that West Virginia did, where the Court

294
00:17:25,160 --> 00:17:30,040
Speaker 1: of course formalized the so called major questions doctor, and

295
00:17:30,080 --> 00:17:32,879
Speaker 1: that never came up in this argument. This really isn't

296
00:17:33,880 --> 00:17:38,920
Speaker 1: a West Virginia style question of statutory interpretation. This case

297
00:17:39,040 --> 00:17:43,480
Speaker 1: turns more, you know, this is the question of e

298
00:17:43,680 --> 00:17:48,119
Speaker 1: p A and the core of engineer's jurisdiction under the

299
00:17:48,119 --> 00:17:55,560
Speaker 1: Clean Water Actors is a pretty classic environmental regulatory kind

300
00:17:55,560 --> 00:17:57,800
Speaker 1: of question that's come up over and over. I mean,

301
00:17:57,800 --> 00:18:01,320
Speaker 1: there's the Freme Court just the fourth case where the

302
00:18:01,359 --> 00:18:04,359
Speaker 1: Supreme Court has had to wrestle with this question of

303
00:18:04,400 --> 00:18:07,760
Speaker 1: federal jurisdiction under the Clean Water Act. So so unlike

304
00:18:07,840 --> 00:18:12,840
Speaker 1: West Virginia, where Justice Chief Justice Roberts was clearly concerned

305
00:18:12,840 --> 00:18:16,480
Speaker 1: about the novelty of e. P. A's interpretation as a

306
00:18:16,520 --> 00:18:18,840
Speaker 1: Clean Air Act. I mean, he was characterizing it, you know,

307
00:18:18,880 --> 00:18:24,119
Speaker 1: as as brand new and and having major implications and

308
00:18:24,480 --> 00:18:28,480
Speaker 1: relying on what he called an ancillary provision of the statute.

309
00:18:28,760 --> 00:18:31,520
Speaker 1: We don't have any of that here. What we do

310
00:18:31,640 --> 00:18:36,000
Speaker 1: have in the Clean Water Act. And this geographic jurisdiction

311
00:18:36,119 --> 00:18:43,080
Speaker 1: question is a fiendishly complicated, um scientific question. At the

312
00:18:43,160 --> 00:18:47,120
Speaker 1: heart of it, it really is a line drawing problem.

313
00:18:47,920 --> 00:18:52,439
Speaker 1: Where do you draw the line between federal jurisdiction and

314
00:18:52,720 --> 00:18:57,359
Speaker 1: state jurisdiction in a watershed? You know, how far up

315
00:18:57,720 --> 00:19:01,639
Speaker 1: the watershed do you go? Looking at maller streams, headwater

316
00:19:01,920 --> 00:19:07,199
Speaker 1: streams as they're called, and their associated wetlands. And the

317
00:19:07,240 --> 00:19:10,120
Speaker 1: Solicitor General try did a very good job, Mr Fletcher

318
00:19:11,200 --> 00:19:15,440
Speaker 1: answering questions, but it was clear that he wasn't satisfying everybody,

319
00:19:15,440 --> 00:19:19,239
Speaker 1: even Kagan. Justice Kagan at one point said, well, you know,

320
00:19:19,680 --> 00:19:24,000
Speaker 1: is there a position or a test that's somewhere between

321
00:19:24,840 --> 00:19:28,440
Speaker 1: the one that the sackets are arguing for, and what

322
00:19:28,920 --> 00:19:31,800
Speaker 1: E p A and the Federal government is arguing for.

323
00:19:32,280 --> 00:19:35,399
Speaker 1: I don't think she ever got a satisfactory answer to

324
00:19:35,440 --> 00:19:38,480
Speaker 1: your question. I'm not sure there is one. Uh. You know,

325
00:19:38,520 --> 00:19:41,919
Speaker 1: Fletcher kept saying, there's you know, if we try to

326
00:19:42,000 --> 00:19:45,840
Speaker 1: draw a bright line, Um, we're going to be attacked

327
00:19:45,920 --> 00:19:49,480
Speaker 1: for picking an arbitrary line because it veries so much

328
00:19:49,520 --> 00:19:53,399
Speaker 1: across the country. You can imagine the different climate between

329
00:19:53,440 --> 00:19:57,320
Speaker 1: the east and the west, the different topography and so forth.

330
00:19:57,440 --> 00:20:01,679
Speaker 1: So you know, the court really want something closer to

331
00:20:02,200 --> 00:20:05,199
Speaker 1: a bright line sort of test, but it may not

332
00:20:05,320 --> 00:20:09,120
Speaker 1: be possible. And what we get out of the Supreme

333
00:20:09,200 --> 00:20:12,360
Speaker 1: Court is almost certainly going to have to be subject

334
00:20:12,440 --> 00:20:16,359
Speaker 1: to further interpretation by E p A and the Core,

335
00:20:16,440 --> 00:20:19,480
Speaker 1: which is they are involved right now in a two

336
00:20:19,480 --> 00:20:23,920
Speaker 1: stage rulemaking. They have one rule pending O m B

337
00:20:24,119 --> 00:20:28,760
Speaker 1: approval at any moment any day, um. And and that's

338
00:20:28,800 --> 00:20:33,840
Speaker 1: just the first uh of two rulemakings that the agencies

339
00:20:33,880 --> 00:20:38,160
Speaker 1: are are engaged in to try to refine this question

340
00:20:38,640 --> 00:20:41,439
Speaker 1: of what wetlands are in, what wetlands are out, what

341
00:20:41,680 --> 00:20:44,720
Speaker 1: streams are in, which ones are out, and so forth.

342
00:20:44,800 --> 00:20:48,320
Speaker 1: It's It's a really really complicated issue. So is it

343
00:20:48,440 --> 00:20:51,680
Speaker 1: that when the wetlands is in the Clean Water Act,

344
00:20:51,720 --> 00:20:57,320
Speaker 1: then the e p A can exercise jurisdiction? Yes, And

345
00:20:57,320 --> 00:21:00,119
Speaker 1: and of course the real question here is what is

346
00:21:00,160 --> 00:21:03,040
Speaker 1: the term waters of the United States means? So it

347
00:21:03,119 --> 00:21:06,919
Speaker 1: gets even more complicated because this case is dealing with

348
00:21:06,960 --> 00:21:11,840
Speaker 1: a wetland. But the question of whether the wetlands is

349
00:21:11,840 --> 00:21:14,520
Speaker 1: the water of the United States begs the question of well,

350
00:21:14,560 --> 00:21:16,679
Speaker 1: what is the waters of the United States? Just as

351
00:21:16,720 --> 00:21:19,240
Speaker 1: the leader really zeroed in on that and he kept saying,

352
00:21:19,480 --> 00:21:21,600
Speaker 1: what do you mean by waters? You mean any place

353
00:21:21,640 --> 00:21:25,199
Speaker 1: that's wet? Uh? Is that your stictional knows, said the

354
00:21:25,240 --> 00:21:28,680
Speaker 1: Solicitor General. We have a more calibrated test for that

355
00:21:29,480 --> 00:21:32,439
Speaker 1: comes back to this whole business of adjacent ce and

356
00:21:32,480 --> 00:21:36,080
Speaker 1: proximity and all that um. But you know, there's there's

357
00:21:36,119 --> 00:21:42,359
Speaker 1: no clear way of defining categorically what are waters of

358
00:21:42,400 --> 00:21:47,840
Speaker 1: the United States. And yet that definition is what underlies

359
00:21:48,119 --> 00:21:51,880
Speaker 1: all of the programs of the Clean Water Act, the planning,

360
00:21:52,600 --> 00:21:58,439
Speaker 1: the permitting, the standard setting, the financial assistance, and the

361
00:21:58,520 --> 00:22:04,080
Speaker 1: Oil and Hazardous Waste Bill provision. A whole bunch a

362
00:22:04,160 --> 00:22:10,359
Speaker 1: whole network of federal programs and money is tied to

363
00:22:10,480 --> 00:22:13,520
Speaker 1: this definition of waters of the US. And of course

364
00:22:13,960 --> 00:22:20,440
Speaker 1: people are wondering why hasn't Congress stepped into this morass

365
00:22:20,560 --> 00:22:24,440
Speaker 1: and clarified what it means by waters of the US.

366
00:22:24,480 --> 00:22:28,959
Speaker 1: And the answer is because Congress is incapable it seems

367
00:22:29,200 --> 00:22:33,159
Speaker 1: of coming to agreement across the aisle on how to

368
00:22:33,280 --> 00:22:36,159
Speaker 1: do that? Correct me if I'm wrong. You did not

369
00:22:36,359 --> 00:22:41,080
Speaker 1: see then a divide, a six three divide, like conservatives

370
00:22:41,640 --> 00:22:45,920
Speaker 1: versus liberals. You didn't necessarily see that here. I saw

371
00:22:46,119 --> 00:22:51,159
Speaker 1: pretty clearly a divide between the liberal wing, which would

372
00:22:51,160 --> 00:22:55,840
Speaker 1: be Kagan, so to Mayor and Jackson, and what I

373
00:22:55,840 --> 00:22:58,880
Speaker 1: would call the hard right wing, which would be Thomas,

374
00:22:59,000 --> 00:23:03,679
Speaker 1: Alito and Horsage. I did see a pretty dramatic split.

375
00:23:04,400 --> 00:23:06,760
Speaker 1: I mean, you know we're all reading tea leaves, okay,

376
00:23:06,880 --> 00:23:10,639
Speaker 1: but I did see a split in those two camps.

377
00:23:10,680 --> 00:23:16,920
Speaker 1: In the middle though, where Roberts, Kavanaugh, and Barrett might

378
00:23:17,000 --> 00:23:21,600
Speaker 1: come down. Those are harder to read for me anyway.

379
00:23:21,840 --> 00:23:25,520
Speaker 1: And of course, because it's a six to three uh

380
00:23:25,800 --> 00:23:29,440
Speaker 1: majority with the conservative wing of the court, you need

381
00:23:29,440 --> 00:23:33,840
Speaker 1: to you need Roberts probably for sure, and either Barrett

382
00:23:33,920 --> 00:23:37,159
Speaker 1: or Kavanaugh if the government is to prevail, or if

383
00:23:37,160 --> 00:23:39,640
Speaker 1: to put it another way, if you don't get those

384
00:23:39,640 --> 00:23:43,000
Speaker 1: two votes, then the sackets are going to prevail. But

385
00:23:43,400 --> 00:23:46,120
Speaker 1: it will also turn on even if the Sackets quote win,

386
00:23:46,600 --> 00:23:50,040
Speaker 1: it's still gonna be does the court finally adopt a

387
00:23:50,160 --> 00:23:53,520
Speaker 1: test that's gonna govern or not? And I think when

388
00:23:53,520 --> 00:23:56,239
Speaker 1: they sit down and try to write an opinion in

389
00:23:56,280 --> 00:23:58,919
Speaker 1: this case, they're gonna find out it's going to be

390
00:23:58,960 --> 00:24:02,199
Speaker 1: really hard. It would easy in West Virginia. It was

391
00:24:02,240 --> 00:24:05,560
Speaker 1: easy because all that the Conservatives had to say is

392
00:24:06,000 --> 00:24:08,560
Speaker 1: ep A just doesn't have this authority period, end of story.

393
00:24:08,880 --> 00:24:12,080
Speaker 1: We don't have to quibal about how this authority would

394
00:24:12,080 --> 00:24:17,359
Speaker 1: be exercised or not. They cannot require generation shifting to

395
00:24:17,480 --> 00:24:21,600
Speaker 1: reduce carbon emissions, period, full stop. They get no deference

396
00:24:22,359 --> 00:24:26,879
Speaker 1: um and Congress has never explicitly addressed this question, and

397
00:24:27,040 --> 00:24:29,240
Speaker 1: that's the end of it. The SACA case is more

398
00:24:29,280 --> 00:24:35,719
Speaker 1: complicated because in fact, in nine seventies seven, Congress amended

399
00:24:36,280 --> 00:24:39,040
Speaker 1: the Clean Water Act, and in that amendment, it's in

400
00:24:39,119 --> 00:24:44,840
Speaker 1: section four oh four G Congress specifically referred to adjacent

401
00:24:45,240 --> 00:24:48,560
Speaker 1: wetlands as being covered. You see, So there was a

402
00:24:48,600 --> 00:24:51,600
Speaker 1: lot of talk about in the in the argument, what's

403
00:24:51,640 --> 00:24:55,399
Speaker 1: the effect of the nineteen seventies seven Amendment. Did it

404
00:24:55,600 --> 00:25:01,879
Speaker 1: codify or ratify this adjacent the requirement that the agencies

405
00:25:01,880 --> 00:25:05,239
Speaker 1: had been using or not? And you couldn't get a

406
00:25:05,240 --> 00:25:10,120
Speaker 1: clear sense of where five of the justices would come

407
00:25:10,119 --> 00:25:11,679
Speaker 1: down on that. I think I know where three of

408
00:25:11,680 --> 00:25:13,560
Speaker 1: them would, but I don't know where the other two

409
00:25:13,600 --> 00:25:18,000
Speaker 1: would come from. So lots and lots of layers. Thanks Pat.

410
00:25:18,400 --> 00:25:21,679
Speaker 1: That's Professor Pat Parento of the Vermont Law School, And

411
00:25:21,720 --> 00:25:23,880
Speaker 1: that's it for this edition of The Bloomberg Law Show.

412
00:25:24,200 --> 00:25:26,520
Speaker 1: Remember you can always get the latest legal news on

413
00:25:26,600 --> 00:25:30,879
Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

414
00:25:31,080 --> 00:25:36,120
Speaker 1: and at www dot Bloomberg dot com, slash podcast, slash Law,

415
00:25:36,520 --> 00:25:39,159
Speaker 1: and remember to tune into The Bloomberg Law Show every

416
00:25:39,160 --> 00:25:43,080
Speaker 1: week night at ten BM Wall Street Time. I'm June Grosso,

417
00:25:43,200 --> 00:25:44,800
Speaker 1: and you're listening to Bloomberg