Speaker 1: Welcome back to Drilled. I'm Amy Westerbeld. Today we are
Speaker 1: interrupting our False Solutions series to bring you an episode
Speaker 1: of our sister podcast, Damages, which is focused on climate litigation.
Speaker 1: That's because I don't know if you've heard, but there's
Speaker 1: some big stuff that's been happening at the Supreme Court
Speaker 1: the last few weeks. A lot of it impacts climate
Speaker 1: and I wanted to talk to someone who might make
Speaker 1: us all feel a little bit better about there still
Speaker 1: being some legal options for a climate accountability. That person
Speaker 1: is Aaron Regenberg, your Climate policy Council for Public Citizen.
Speaker 1: Public Citizen has recently been talking about the idea of
Speaker 1: filing criminal charges against oil companies related to climate change.
Speaker 1: One of those charges is homicide. That's right, homicide. I
Speaker 1: asked Regenberg to walk me through they're thinking on that
Speaker 1: charge and other criminal charges, how using criminal law might
Speaker 1: help with the giant brick wall facing us at the
Speaker 1: Supreme Court, and what some of the most recent Supreme
Speaker 1: Court rulings mean for climate accountability. That conversation is coming
Speaker 1: up after this quick break.
Speaker 2: So I want to talk about the homicide stuff and
Speaker 2: just have you tell me when you started looking at
Speaker 2: the viability of could this actually be a homicide charge
Speaker 2: against these companies? And what started you off thinking in
Speaker 2: that direction.
Speaker 3: The work that Public Citizen Organization is doing on this
Speaker 3: really comes from a place of just knowing that we're
Speaker 3: in five alarm fire mode, right, We're in, you know,
Speaker 3: throw everything at the law mode. We need to be
Speaker 3: exploring every possible solution, every possible tool that we have
Speaker 3: for protecting folks from climate harms, for holding the actors
Speaker 3: responsible for this crisis accountable. And there's this whole big
Speaker 3: part of the law, a really important, powerful part the
Speaker 3: criminal law that I think has not really been brought
Speaker 3: to bear on this crisis. Again, we're getting to a
Speaker 3: point where the harms are really clear, right, the injuries,
Speaker 3: the deaths that we're seeing, it's getting harder and harder
Speaker 3: to ignore or and when you have people dying and
Speaker 3: you have particular individuals, particular corporate actors who have recklessly
Speaker 3: acted in ways that have caused or contributed to those harms,
Speaker 3: you know, we have a word for that, and homicide.
Speaker 3: We're looking to be clear, actually at a number of
Speaker 3: possible criminal offenses that we think these companies, Big oil
Speaker 3: could potentially be be charged with, though homicide is the
Speaker 3: most high profile and just I think important and severe
Speaker 3: given the stakes, and I think that this work becomes
Speaker 3: even more important considering the larger context. I guess we'll
Speaker 3: probably talk about the Supreme Court term later later on
Speaker 3: in this conversation. But you know, a lot of our
Speaker 3: tools are getting are getting taken away or whittled away.
Speaker 3: And I think we all know that the criminal law
Speaker 3: in this country has for a long time, maybe always
Speaker 3: been disproportionately targeted against poor people, people of color. But ostensibly,
Speaker 3: what it's supposed to be about protecting us from harm,
Speaker 3: right keeping us safe from dangerous actors that would do
Speaker 3: harm in our communities. And so the question we've been
Speaker 3: asking is what if we use this system to actually
Speaker 3: protect us from harm, to actually protect us from the
Speaker 3: corporate actors that right now are doing damage at an
Speaker 3: almost unimaginable scale.
Speaker 2: Could you actually run through the list of potential criminal
Speaker 2: offenses that you're looking at.
Speaker 3: Yeah, absolutely so. As far as the sort of range
Speaker 3: of criminal offenses that we're looking at that we're in
Speaker 3: conversations with prosecutors of various source about. There's offenses like
Speaker 3: reckless endangerment, so most states have some sort of reckless
Speaker 3: endangerment statute that says, if you engage in reckless conduct
Speaker 3: that creates a substantial unjustifiable risk of injuring or killing someone,
Speaker 3: then you have committed that crime. Similarly, some states, five
Speaker 3: or six states actually have it's kind of perfectly suited
Speaker 3: to what we're seeing. Have make it a crime to
Speaker 3: cause or risk catastrophe, which is it it's sort of
Speaker 3: similar but at a larger scale to reckless endangerment, and
Speaker 3: it's kind of hard to imagine a more apt description
Speaker 3: of what Big Oil has done than caused risk. There's
Speaker 3: you know, there's conspiracy and racketeering, which can be a
Speaker 3: component of a lot of different prosecutions. There's there's obviously fraud,
Speaker 3: and there could be civil fraud, but there's also criminal
Speaker 3: fraud in many states based on what they said versus
Speaker 3: what they knew. There's some some anti trust statutes have
Speaker 3: criminal components, and we think, you know, anti competitive practice
Speaker 3: is a pretty good way of describing engaging in massive
Speaker 3: fraud and cover up specifically in order to keep the
Speaker 3: technical competitors ie renewable energy sources out of the market.
Speaker 3: So that just kind of gives you an idea, there
Speaker 3: is a range. But having said that, I do think
Speaker 3: that that homicide really does get at at a lot
Speaker 3: of the moral corruption of what big oil has done.
Speaker 3: And you think about the kind of incidents and the
Speaker 3: kind of people that we do charge with homicide in
Speaker 3: this country. My wife's a public defender, so I hear
Speaker 3: stories every day. She had did a client earlier this
Speaker 3: year who was driving in her car totally soberly with
Speaker 3: her fiance and got in a crash and she was
Speaker 3: badly injured. Her fiance was killed, so her life's like
Speaker 3: already ruined, and and then the local DA slaps her
Speaker 3: with a reckless homicide charge. It was a horrible case,
Speaker 3: and my wife won, but it was like a year
Speaker 3: and a half half of this woman's life additionally ruined.
Speaker 3: The point is like, we charge a lot of folks
Speaker 3: with homicide for conduct that is orders of magnitude less
Speaker 3: culpable and less harmful and disastrous than what Big Oil
Speaker 3: has knowingly done. And we're now seeing the body count
Speaker 3: going up in real time every day from climate disasters,
Speaker 3: whether it's hurricanes, whether it's the kind of extreme heat
Speaker 3: waves that so many of us are currently sweating under
Speaker 3: whether it's wildfires. You know, we could go on. We
Speaker 3: just put out a report looking at just as one example,
Speaker 3: Maricopa County its experienced last year with the July heat wave,
Speaker 3: and there were over well over four hundred heat deaths
Speaker 3: in that county in July, which is more than the
Speaker 3: number of overall murders that the city experience. Is right,
Speaker 3: if someone were pressing a killer heat button, I think
Speaker 3: law enforcement would be all over trying to stop them.
Speaker 3: That That's not how we've thought about these killer heat waves.
Speaker 3: We think of them as these natural disasters, but we
Speaker 3: know right that they're not. In many cases, we have
Speaker 3: studies saying that they would have been virtually impossible but
Speaker 3: for human cause climate change, and we know who is
Speaker 3: behind human caused climate change.
Speaker 2: If a homicide charge were to be brought, it would
Speaker 2: have to be brought against particular individuals, not against a
Speaker 2: corporate entity.
Speaker 3: Is that true individuals and corporations can be charged criminally,
Speaker 3: and indeed there's a there's a long history of corporations
Speaker 3: being charged with offenses like homicide. BP pled guilty to
Speaker 3: manslaughter for the deep Water Horizon Right disaster. One more
Speaker 3: recent example that we think is really interesting. Pg Ande
Speaker 3: Utility in California was convicted of negligent homicide for the
Speaker 3: Paradise fire years ago in California, and I think that's
Speaker 3: a really interesting example because.
Speaker 2: It's so interesting, Wow, what.
Speaker 3: They were found. The culpal behavior there that was found
Speaker 3: to have caused those deaths was their negligent upkeep of
Speaker 3: of equipment that ended up causing the spark that led
Speaker 3: to that fire. But you take one step back and
Speaker 3: the normal time, right, I think that fire was in
Speaker 3: was in October November. Normal normally there would have been rain,
Speaker 3: you know, many times over the previous months. That spark
Speaker 3: would have not led to a raging inferno that killed
Speaker 3: dozens and dozens of people. The reason that that fire
Speaker 3: happened was what Exxon and Chevron and BP and Shell
Speaker 3: have done, right, And so again it's you know, you
Speaker 3: take one step back and you think about who's really
Speaker 3: responsible for those deaths. So anyway, you asked about individual
Speaker 3: versus corporation, so you can you could pursue both. Most
Speaker 3: most of our focus is really looking at the corporate
Speaker 3: entities both because there are some legal reasons why we
Speaker 3: think that that that could be a stronger case and
Speaker 3: because as far as remedies go, I think, you know,
Speaker 3: the project is less about you know, throwing people in
Speaker 3: jail and more about how do we get to the
Speaker 3: root issue of the problem, and so the kinds of
Speaker 3: solutions that could come out of this that could actually
Speaker 3: that could actually shift those those root causes. One good
Speaker 3: example of that kind of remedy the DOJ's criminal settlement
Speaker 3: with Perdue Pharma for its role in the opioid crisis.
Speaker 3: Included includes a plan to restructure Purdue as a public
Speaker 3: benefit corporation that is, you know, explicitly focused in its
Speaker 3: corporate charter on repairing the harm it did, you know,
Speaker 3: investing in public health solutions to to the opioid crisis.
Speaker 3: And so you know that that's one that's one vision
Speaker 3: for you know, you have a strong enough case and
Speaker 3: you could potentially get to a solution where we're rewriting
Speaker 3: a charter to say this company needs to focus on
Speaker 3: the clean energy transition. Though there's lots of other remedies
Speaker 3: that you could envision that could come either from a
Speaker 3: criminal settlement because the companies like, we don't want to
Speaker 3: go through this, or you know, they do go through it,
Speaker 3: and there's a conviction and then there's a court order.
Speaker 2: Right. Actually, I wanted to ask you about the opioid
Speaker 2: stuff because I know people are kind of constantly saying,
Speaker 2: why aren't the climate cases like the okaoid cases, And
Speaker 2: I know that a lot of those cases leaned on
Speaker 2: municipal code and this idea that the ok Good epidemic
Speaker 2: was increasing costs for cities, which is certainly the case
Speaker 2: with the climate situation. And I know that some of
Speaker 2: the liability cases are getting it that. Could you walk
Speaker 2: me through how these charges would be different?
Speaker 3: Yeah, So I really interesting and important to think about
Speaker 3: the difference between you know, the civil suits and civil
Speaker 3: law in general and criminal law and these these criminal
Speaker 3: charges that we've been proposing. And the first thing to
Speaker 3: say is, in no way anything that we're saying to
Speaker 3: say that, you know, we should be talking about criminal
Speaker 3: instead of civil. The climate accountability suits, I think are
Speaker 3: the most important thing happening right now in climate litigation,
Speaker 3: and they're actually, you know, several of them are actually
Speaker 3: getting past the jurisdictional phage phase into discovery, like they're
Speaker 3: starting to bear real fruit, and that is unbelievably exciting.
Speaker 3: So that's, you know, we're just saying we need to
Speaker 3: be looking at everything. And there are advantages to to
Speaker 3: criminal law. There's advantages to the speed. I mean criminal
Speaker 3: criminal cases move a lot faster. There's advantages to discovery.
Speaker 3: The state has some advantages there that a private plaintiff
Speaker 3: does not. And there's advantages to the actual law. Again,
Speaker 3: you think about how civil law has developed. It is
Speaker 3: big corporations who are usually the defendants, right, and so
Speaker 3: they are have been for decades, all the power and
Speaker 3: best you know, big law lawyers in the world to
Speaker 3: make it as hard as possible to hold civil defendants accountable,
Speaker 3: as many sort of off rands, as many ways for
Speaker 3: judges to throw out cases before you actually get to trial.
Speaker 3: On the criminal side, you think about who's developed the law, right,
Speaker 3: it's overwhelmingly poor people. People who I mean, again, my
Speaker 3: wife's public defender some great representation, but it's not people
Speaker 3: who have had the capacity to do that same kind
Speaker 3: of work. And so in a lot of ways, I mean,
Speaker 3: there's more deference to the judge in a criminal trial.
Speaker 3: Generally it's harder to throw something out before you actually
Speaker 3: get to trial. And I think we saw on the
Speaker 3: Trump trial there can be something really powerful about putting
Speaker 3: these questions in front of a group of twelve regular
Speaker 3: people who are tasked with making a a common sense
Speaker 3: decision based on what they think is fair and just
Speaker 3: about you know, is is it right to hold this
Speaker 3: person or actor responsible for this harm. There's a lot
Speaker 3: of systems that protect the rich and powerful incorporations in
Speaker 3: this country from accountability for the horrible things they do.
Speaker 3: And there's a lot of ways in which that process
Speaker 3: that I just described cuts through a lot of those
Speaker 3: a lot of those systems.
Speaker 2: What would you have to prove? What evidence would you
Speaker 2: have to bring to the table.
Speaker 3: We just partnered with a former DOJ prosecutor. Her name
Speaker 3: is Cindi Cho. She's spent her career doing these kinds
Speaker 3: of complex prosecutions, and we partnered with her to do
Speaker 3: what's called a prost memo or a prosecution memo. It's
Speaker 3: basically the exercise a prosecutor does when they're deciding is
Speaker 3: there enough evidence here to actually pursue a case? Looking
Speaker 3: at a particular climate crisis and the evidence round it
Speaker 3: and trying to decide, you know, analyze is there is
Speaker 3: there a there there? And by the way, the conclusion
Speaker 3: and it wasn't just us again, it was this long
Speaker 3: time DOJ prosecutor was that, Yeah, there is enough here
Speaker 3: so to prove a homicide charge. Basically, the two elements
Speaker 3: in a reckless homicide. In some states it's called man manslaughter,
Speaker 3: sometimes it's called second degree murder is one that the
Speaker 3: defendant caused a death, so that's the causation piece. And
Speaker 3: two that they had the appropriate culpable mental state in
Speaker 3: their causing of the death. And so that's what sort
Speaker 3: of grades the level of homicide charge. So from the
Speaker 3: lowest negligent homicide, so you act neligently that caused death,
Speaker 3: the highest is you know, first degree murder, and that's
Speaker 3: where you acted with you know intent. So we're not
Speaker 3: arguing that right Exxon was not doing what it did
Speaker 3: in order to kill the dozens of people that have
Speaker 3: died in this recent round of he waives. But as
Speaker 3: far as reckless endangerment, acting recklessly, that's that's acting with
Speaker 3: with knowledge risk but doing it anyway, or for for
Speaker 3: a lot of different second degree murder charges, you need
Speaker 3: to show that they acted with extreme indifference to human life.
Speaker 3: Those are what we're really looking at.
Speaker 2: And so God, I'm just imagining them mounting an insanity defense.
Speaker 3: So we did in this pros memo. We put out
Speaker 3: prosecution memo, we did go through the different defenses that
Speaker 3: they're likely to raise and sort of you know, analyze
Speaker 3: the strength of them real quickly on those two elements.
Speaker 3: So on the mental state, I'm acting either recklessly or
Speaker 3: with extreme difference to human life. Often in a criminal prosecution,
Speaker 3: that's the hardest thing to prove, because it's hard to
Speaker 3: start in someone's head. In this situation, that's actually I
Speaker 3: think very doable. Right, We have just mountains of evidence
Speaker 3: in these companies' internal memos that exactly, I mean, you've
Speaker 3: reported on this to such wonderful efficacy. They knew exactly
Speaker 3: what they were doing. They were predicting, you know, to
Speaker 3: the decimal point of temperature increase. They were talking about disasters,
Speaker 3: they're talking about sea level rise, they're talking about extreme heat.
Speaker 3: I was just looking at a report from nineteen ninety
Speaker 3: six that Exon had really describing exactly in detail the
Speaker 3: kind of excess deaths from whether from heat extremes that
Speaker 3: we're seeing right now. So anyway to show that they
Speaker 3: knew that there was a risk at the very least
Speaker 3: and that they went ahead anyway. We think that's very doable. More,
Speaker 3: just to be frank difficult piece of this is the causation.
Speaker 3: So to show causation in a case like this, you
Speaker 3: really need to prove it, and you need to prove
Speaker 3: it beyond a reasonable doubt, which is the higher standard
Speaker 3: for criminal prosecution. At three different stages. Right, So you
Speaker 3: need to show one that this particular event, this particular
Speaker 3: extreme weather event, whether it's an extreme heat wave or
Speaker 3: something else, caused this particular death. And we think that's
Speaker 3: pretty doable. There's a lot of public departments of health,
Speaker 3: boards of medical examiners. They will report this was a
Speaker 3: death due to extreme heat. Then you need to prove
Speaker 3: that this extreme weather event was caused by climate change.
Speaker 3: And again that's that's the area where the rapidly developing
Speaker 3: climate attribution science is so so important. Climate scientists can
Speaker 3: now say that this disaster was made x times more likely,
Speaker 3: was made x times more powerful, or would have been
Speaker 3: virtually impossible but for climate change. And I think it's
Speaker 3: particularly interesting in the context of again, I'm just I'm
Speaker 3: really hot right now, I'm sweating, so thinking a lot
Speaker 3: about extreme heat. But you know, in an extreme heat wave,
Speaker 3: we the human body has clear thresholds right below which
Speaker 3: you can survive and above which you get You get
Speaker 3: one or two degrees above that threshold and you die.
Speaker 3: And so so to show that the that climate change
Speaker 3: even caused this particular margin that went above that threshold,
Speaker 3: that shows that caused the death. So yeah, that's the
Speaker 3: second stage. And then the third stage, probably the biggest,
Speaker 3: is showing that these particular companies, and again we're looking
Speaker 3: at some of the at the biggest investor owned oil
Speaker 3: and gas companies, the big names ex On, Chevron, VP, Shell, Conicophillips,
Speaker 3: et cetera, that they cause climate change. And that's one
Speaker 3: important thing to note. In most states and most jurisdictions,
Speaker 3: causation does not require you to have been the sole cause,
Speaker 3: or even in many cases the primary cause. You need
Speaker 3: to have been a substantial factor in contributing to that death.
Speaker 3: And so we think, again there's plenty of evidence that
Speaker 3: a group of particular big oil companies has been a
Speaker 3: substantial factor in causing climate change, both through the actual
Speaker 3: physics of the emissions. Right, we have source utian research
Speaker 3: that can say this company is responsible for generating this
Speaker 3: percentage of all of human caused greenhouse gas emissions, you know,
Speaker 3: since the beginning of the Industrial Revolution, and then also
Speaker 3: through their climate disinformation and deceit, And we think there's
Speaker 3: a causative argument there that what these companies did specifically
Speaker 3: in order to delay or block climate action has meant
Speaker 3: that climate change is worse, is farther along than it
Speaker 3: otherwise would have been. So you add those two together,
Speaker 3: and we think there's a pretty strong argument that these
Speaker 3: companies cause substantially contributed to climate change, that climate change,
Speaker 3: you know, caused substantially contributed to this weather event, and
Speaker 3: then that this weather event caused And we think that
Speaker 3: the victims of these disasters and their families deserve justice
Speaker 3: just as much as as the victims of any street
Speaker 3: level crime. We spend a lot of time talking about
Speaker 3: justice for people who've been wronged, but we don't think
Speaker 3: about all the people being harmed from climate in the
Speaker 3: same way. And I think we start doing that.
Speaker 2: You touched on this a minute ago, and I want
Speaker 2: to ask you more about it. How does this help
Speaker 2: with this giant brick wall that we're facing with the
Speaker 2: Supreme Court right now?
Speaker 3: Yeah, I mean, really, you know, dark times in the
Speaker 3: law the TLDR of this last term and lots of
Speaker 3: terms before, but certainly what we just saw in the
Speaker 3: last month is that it's it's been made a lot
Speaker 3: harder for the federal government to pursue the kind of
Speaker 3: regulatory actions that we need to solve climate and so
Speaker 3: for us, that means it is even more important that
Speaker 3: we are exploring other tools, exploring other areas of the
Speaker 3: law that could have a big impact on this. And again,
Speaker 3: criminal law is it's sort of half the law of
Speaker 3: this country and it hasn't really been brought to bear.
Speaker 3: Another important piece we think about the value of these
Speaker 3: kinds of prosecutions that they could bring is it is
Speaker 3: a lot harder, I think, for the federal courts to
Speaker 3: step in when you're talking about a core police power
Speaker 3: of a state. We've been looking, we haven't been able
Speaker 3: to find a single case where a criminal law of
Speaker 3: general application, that let alone homicide prosecution was preempted by
Speaker 3: the federal courts. Right because again, that is a core
Speaker 3: power of states and localities that they have control of
Speaker 3: criminal law. And it's not to say that the Supreme
Speaker 3: Court has made clear that they don't give a shit
Speaker 3: about what the law actually is. And so it's not
Speaker 3: to say that would not be able to make up
Speaker 3: new law from whole cloth in order to try to
Speaker 3: stop something like this, but certainly it's a lot harder, right,
Speaker 3: they would have to make it up from whole cloth.
Speaker 3: This is a core state and local jurisdiction thing, and
Speaker 3: there's no precedent for the federal courts coming in and
Speaker 3: taking it and squashing it. So yeah, to the degree,
Speaker 3: to the degree we can use the courts on climate,
Speaker 3: we think this is one of the ways to ensure
Speaker 3: that states and localities actually can have a voice, because again,
Speaker 3: there's nothing more core to a to a local da
Speaker 3: than being able to prosecute homicides that occurred in their jurisdiction.
Speaker 2: Yeah, okay, shifting gears. I want to ask your thoughts
Speaker 2: on Supreme Court stuff as well. So, God, where to begin?
Speaker 2: Can I have you give me like your sort of
Speaker 2: quick and simple explanation of the impact of chucking Chevron deference.
Speaker 3: Yeah, it's not good. I mean it's the quick and
Speaker 3: dirty of the Chevron decision is that it is another
Speaker 3: massive judicial power grab. It is taking an immense amount
Speaker 3: of power out of the hands of actual experts in
Speaker 3: administrative agencies, people who have been doing whatever work, whether
Speaker 3: it's on environment, whether it's on health and medicine, whether
Speaker 3: it's on economics, you know, whatever it is. We've got
Speaker 3: a lot of smart people in government. They've been doing
Speaker 3: this with their whole careers. We are saying they don't
Speaker 3: get to decide anything, even if Congress has very clearly
Speaker 3: said you get to decide this, And we're putting that
Speaker 3: power in the hands of frankly, some of the worst
Speaker 3: and dumbest people in the world. And I'm talking about
Speaker 3: like twenty five year old law school grad like fedsock twerps.
Speaker 3: You know, these are these are the law clerks, conservative
Speaker 3: justices who write the actual opinions. I clerked for a judge.
Speaker 3: These are the people who write the opinions. And these
Speaker 3: are kids who like went right from college to law school,
Speaker 3: did not do anything in law school to open their minds, right,
Speaker 3: They spent the whole time in like conservative fed sock
Speaker 3: circle jerk meetings, and then they're asked to like they're
Speaker 3: given the power to make these immense decisions about the
Speaker 3: environment and economics and health and and occupational safety and
Speaker 3: everything else. Having zero expertise. I went to law school
Speaker 3: with these people. They're not they're not smart, they're not good,
Speaker 3: and they don't have that capacity to make to do
Speaker 3: good analysis on any of these questions. So it's a
Speaker 3: big problem. I will say. The optimist in me on
Speaker 3: the on the throwing Chevron in the garbage is I
Speaker 3: have some hope that it won't be as sort of
Speaker 3: cataclysmic as I think some people predict. And it's not particular,
Speaker 3: it's not super reassuring why that would be, but that
Speaker 3: the reason why is that, like things are already so bad.
Speaker 3: I mean, like the Supreme Court's Major Questions Doctrine I
Speaker 3: think has already has already destroyed much of this of
Speaker 3: the capacity of agencies.
Speaker 4: I was going to ask you about that because it
Speaker 4: did really seem to me like there was all this
Speaker 4: uproar about Chevron deference, and while that was all going
Speaker 4: on before the ruling, I was kind of like that,
Speaker 4: I mean, it feels like they've already achieved a lot
Speaker 4: of this with the Major Questions doctrine stuff, and they
Speaker 4: extent to which they're leaning on it, But yeah, what
Speaker 4: are the additional issues.
Speaker 2: Beyond what Major Questions Doctrine was already doing that.
Speaker 3: This accomplishes No, I think that's absolutely right. They have
Speaker 3: already mostly accomplished this, And chef Ron, I think it
Speaker 3: has been relied on less by agencies as we when
Speaker 3: some we lose some, but we we often have already
Speaker 3: lost cases those arguments I actually think, I actually think
Speaker 3: more impactful, arguably in a really horrific way, is the
Speaker 3: Statute of limitations. The other big, you know, agency action
Speaker 3: case Corner Post that was decided the last day of
Speaker 3: the term, and so the the opinion there was basically
Speaker 3: throwing aside the statute of limitations for challenges to government action,
Speaker 3: so that there's a six year statute of limitations on
Speaker 3: challenging agency action. And what the Supreme Court interpreted is
Speaker 3: that that that six years does not start when the
Speaker 3: government action occurs. It starts whenever the injury happens. So
Speaker 3: basically that throw open the door to challenging literally any
Speaker 3: administrative action at all. So I think the potential for
Speaker 3: being wildly destabilizing of every thing we have that protects
Speaker 3: our health and our water and our hair from that
Speaker 3: decision is arguably more concerning than Chevron.
Speaker 2: That's interesting in terms of what can be done, and
Speaker 2: how all of this dovetails with what's happening around electoral
Speaker 2: politics right now too, because the Supreme Court and the
Speaker 2: likelihood of justice is retiring and then being replaced by
Speaker 2: very young, far right justice and all of that is
Speaker 2: like the thing that I'm seeing talked about the most
Speaker 2: is sort of like, oh, you know, you have to
Speaker 2: vote for Biden no matter what because of the Supreme Court.
Speaker 2: So yeah, I'm just I'm curious for your thoughts on
Speaker 2: the packing the court stuff that people we'll talk about
Speaker 2: when these rulings come out.
Speaker 3: And then also.
Speaker 2: All of this kind of feeds into what's happening with
Speaker 2: the election.
Speaker 3: Well, I think any Democrat who's not serious about court reform,
Speaker 3: including court expansion, is a like either blind or I mean,
Speaker 3: this is like, this is existential threat. And they just
Speaker 3: ruled that Donald Trump can literally get away with murder.
Speaker 2: Yeah. Actually I found that ruling to be so much
Speaker 2: more shocking than the Chevron DeFord stuff, And I was like,
Speaker 2: I feel like this is basically saying we're not a
Speaker 2: democracy anymore.
Speaker 3: I don't think you can overreact to it. It is
Speaker 3: so profoundly terrifying. I mean, they literally they really say,
Speaker 3: you know this a literal question, can you order Seal
Speaker 3: Team six to assassinate arrival? And it is pretty clear
Speaker 3: in that opinion that they are saying you can, especially.
Speaker 2: Getting that in the context of him really ramping up
Speaker 2: the rhetoric around revenge as part of his goal for
Speaker 2: re election is I don't know, it's very concerning.
Speaker 3: It's really scary. I think that you know, there are
Speaker 3: leaders in the Democratic Party on this. I think overall
Speaker 3: the Democratic Party has completely fallen on his ass on this,
Speaker 3: whether it's it's Biden's refusal to engage in a real way,
Speaker 3: whether it's Dick Durbin's refusal to act like he's the
Speaker 3: chair of Senate Judiciary and has actual powers. I mean,
Speaker 3: the whole idea of constitutional interpretation just being the role
Speaker 3: of the judiciary is a new idea. Judicial supremacy is
Speaker 3: a new thing, and we've seen the playbook for how
Speaker 3: you deal with it. So FDR he comes in great
Speaker 3: depression and he does his first round the first new deal.
Speaker 3: It's called of programs, and there's a conservative Supreme Court
Speaker 3: and they basically at them all down, they eviscerate them,
Speaker 3: and FDR does not, like Biden has go out and say, well,
Speaker 3: that's not the role for the president. You know, we
Speaker 3: got to respect what they say. FDR. You know, cos
Speaker 3: on a full on, you know, whistlestop tour, he says,
Speaker 3: this is what we're fighting for, these things that will
Speaker 3: help improve your lives, and these are the these are
Speaker 3: the jackasses that are taking it away from you. It's
Speaker 3: bullshit and proposes a number of different fixes. We we
Speaker 3: we think about his quote unquote quote packing plan and
Speaker 3: that it was not successful. We've we've totally drawn the
Speaker 3: wrong historical lesson there. He did this all out front
Speaker 3: against the Supreme Court, and though that particular the Court
Speaker 3: expansion plan was not passed, the overall effect of that larger,
Speaker 3: that larger offensive was that the Supreme Court backed off
Speaker 3: and the Second New Deal set of programs was allowed
Speaker 3: to continue in it. You know, our entire your first
Speaker 3: state and system of government party has not done that.
Speaker 3: You need to start you have needed to start doing
Speaker 3: that decades ago. And it's really clear now.
Speaker 2: Totally the Democratic Party or like you'll all hear, you know,
Speaker 2: political strategist to be like, well, you know, sure that
Speaker 2: worked in FDR's day, but the Supreme Court wouldn't respond
Speaker 2: to that kind of pressure today. I mean, maybe, but
Speaker 2: could we try. I don't understand the what seems to
Speaker 2: be total lack of energy or interest in doing anything
Speaker 2: at all about it.
Speaker 3: It's in defense of yeah, and again this is it's everything.
Speaker 3: The Supreme Court is threatening and has the ability to
Speaker 3: further threaten every single thing we care about. They've already
Speaker 3: obviously destroyed some of the most important rights that Americans have. Right,
Speaker 3: I'm not serious about this. I don't know how you
Speaker 3: can say you're serious about any of the use we
Speaker 3: care right. The last thing I'd say is, again, it's
Speaker 3: or reason for us to be looking for alternative, alternative
Speaker 3: solutions for how the law can keep our communities safe
Speaker 3: from climate harms and climate criminals. And we think that
Speaker 3: the law is a way that localities and states can
Speaker 3: take action on the area that they have the strongest
Speaker 3: jurisdiction and right to say, this is our core powers.