WEBVTT - Will Boeing Be Prosecuted & EPA Power Plant Rules 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.680 --> 0:00:14.720 Boeing is under fire, facing investigations by the Federal Aviation Administration, 0:00:15.240 --> 0:00:20.040 the Justice Department, and the National Transportation Safety Board. What's more, 0:00:20.480 --> 0:00:24.320 Justice could tear up a controversial twenty twenty one deferred 0:00:24.360 --> 0:00:29.120 prosecution agreement that allowed Boeing to escape criminal charges over 0:00:29.280 --> 0:00:33.280 crashes in twenty eighteen and twenty nineteen that killed three 0:00:33.360 --> 0:00:36.800 hundred and forty six people. And the testimony before Congress 0:00:36.840 --> 0:00:41.440 two weeks ago of whistleblower Sam Salapor, a Boeing engineer, 0:00:41.680 --> 0:00:45.120 could illustrate a reason for the Justice Department to tear 0:00:45.200 --> 0:00:47.400 up that deferred prosecution agreement. 0:00:47.680 --> 0:00:50.959 The NTSB chair reiterated Congress last week that Boeing has 0:00:50.960 --> 0:00:54.040 said there are no records documenting the removal of the 0:00:54.120 --> 0:00:57.160 last airline store. I'm not going to sugarcoat this. This 0:00:57.240 --> 0:01:00.000 is a criminal cover up. Records do in fact exist. 0:01:00.880 --> 0:01:03.480 I know this because I've personally passed them to the FBI. 0:01:04.160 --> 0:01:07.399 Joining me, is Bloomberg Legal reporter Greg Farrell. Greg tell 0:01:07.480 --> 0:01:10.160 us about the deferred prosecution agreement with Boeing. 0:01:10.800 --> 0:01:14.280 This deferred prosecution agreement has turned out to be controversial 0:01:15.040 --> 0:01:18.200 insofar as it was struck in the winning days of 0:01:18.240 --> 0:01:20.480 the Trump administration, and in fact it was signed on 0:01:20.520 --> 0:01:24.000 January sixth, twenty twenty one. You know, most news covers 0:01:24.000 --> 0:01:27.119 that day focused on other events in Washington, DC rather 0:01:27.200 --> 0:01:30.360 than on the Boeing TPA. It got almost no coverage 0:01:30.360 --> 0:01:34.760 at the time, but essentially following two horrific crashes that 0:01:34.840 --> 0:01:37.000 took the lives of three hundred and forty six people 0:01:37.480 --> 0:01:41.560 and a two year Justice Department investigation, ended up with 0:01:41.600 --> 0:01:43.560 a fine at the low end of two hundred and 0:01:43.560 --> 0:01:47.720 forty three million dollars and acknowledgment that Boeing didn't cooperate 0:01:47.720 --> 0:01:50.480 with the investigation for several months at the beginning. So 0:01:50.520 --> 0:01:53.280 they got a good deal despite not cooperating very much. 0:01:53.280 --> 0:01:55.800 They got a deferred prosecution agreement instead of an actual 0:01:55.880 --> 0:01:57.040 criminal charge. 0:01:57.560 --> 0:02:01.440 The families of the people that are killed, were they 0:02:01.760 --> 0:02:04.640 not happy about that Boeing agreement. 0:02:05.120 --> 0:02:08.040 Absolutely. First of all, they were blindsided by this settlement. 0:02:08.480 --> 0:02:12.160 They suddenly just announced, you know, on January seventh. They 0:02:12.200 --> 0:02:15.360 had asked the Justice Department on several occasions, you know, 0:02:15.440 --> 0:02:18.160 throughout twenty nineteen and twenty twenty. You know, if they're 0:02:18.280 --> 0:02:20.639 investigating Boeing and how's the criminal investigation going. And we're 0:02:20.680 --> 0:02:23.560 told in twenty twenty that there was no criminal investigation, 0:02:23.960 --> 0:02:26.320 so you know, they were not happy with that, but 0:02:26.600 --> 0:02:28.160 they sort of had to deal with that and move on. 0:02:28.200 --> 0:02:30.080 And then suddenly to find out that there was a 0:02:30.080 --> 0:02:32.799 criminal investigation that they weren't informed of that it ended 0:02:32.840 --> 0:02:35.919 up being very favorable to Boeing, and they weren't even consulted. 0:02:36.280 --> 0:02:39.280 They were just shocked and blindsided by that. That really 0:02:39.720 --> 0:02:42.200 like there was sault in the wound. And then the 0:02:42.320 --> 0:02:46.200 charge that to which Boeing acknowledged its misconduct but didn't 0:02:46.240 --> 0:02:49.760 have to plead guilty too as of then was defrauding 0:02:49.760 --> 0:02:52.919 the US government by being dishonest with the FAA over 0:02:53.200 --> 0:02:56.560 the need for extra training because of this this new 0:02:56.919 --> 0:03:00.760 software program that would be an automated steering system under 0:03:00.760 --> 0:03:04.840 certain circumstances, and eventually, you know, it was blamed for 0:03:05.160 --> 0:03:08.960 you know, both of these failed crashes. The government focused 0:03:09.000 --> 0:03:12.960 only on misleading the FAA, But what they did not 0:03:13.040 --> 0:03:16.720 pay any attention to was the fact that boeinghead insisted 0:03:16.760 --> 0:03:19.079 that the plane was safe even after the first crash. 0:03:19.160 --> 0:03:22.800 The material has emerged in various congressional investigations that the 0:03:22.800 --> 0:03:25.680 top executives were aware and trying to fix you a 0:03:25.800 --> 0:03:28.880 possible problem with the steering during a period of time, 0:03:29.080 --> 0:03:31.800 but the Justice Department did not bring any action against 0:03:31.840 --> 0:03:35.080 senior executives at all. Instead, the only criminal charge for 0:03:35.120 --> 0:03:38.600 an individual was this mid level technical pilot, a guy 0:03:38.640 --> 0:03:42.760 named Mark Folkner, who was tried and acquitted in like 0:03:42.760 --> 0:03:45.440 two hours. It was clearly viewed as a scapegoat by 0:03:45.480 --> 0:03:49.400 the jury and even the FAA witnesses who were called 0:03:49.400 --> 0:03:52.200 to testify, the ones who were deceived that felt the 0:03:52.200 --> 0:03:54.200 same thing, even though this guy is just being set 0:03:54.280 --> 0:03:56.640 up by the company. That's the sign of a weak 0:03:56.840 --> 0:04:00.360 DPA is that you're blaming the death of three forty 0:04:00.400 --> 0:04:04.240 six people, two horrific crashes on this controversial system that 0:04:04.320 --> 0:04:06.640 was not disclosed through the FA, all on one guy, 0:04:06.720 --> 0:04:09.000 as if no one above him knew about this. 0:04:09.720 --> 0:04:12.200 So, you know, we all know about that recent Boeing 0:04:12.480 --> 0:04:15.480 mid air blowout of the door plug, so bad luck 0:04:15.520 --> 0:04:20.240 for Boeing. That was just days before this deferred prosecution agreement, 0:04:20.720 --> 0:04:21.200 and we. 0:04:21.040 --> 0:04:23.599 Were the first to report that that it came just 0:04:23.600 --> 0:04:27.440 two days before the three year term expired and shortly thereafter, 0:04:27.680 --> 0:04:30.440 the Justice Department did start looking into that two parts 0:04:30.480 --> 0:04:34.400 of criminal investigation into any whether any laws were broken 0:04:34.839 --> 0:04:37.680 in terms of how this door plug came off, did 0:04:37.800 --> 0:04:40.560 going again hide records or not disclosed things they should 0:04:40.600 --> 0:04:43.800 have disclosed, And you know, concurrently with that, part of 0:04:43.839 --> 0:04:45.719 the terms of the DPA is that you've got to 0:04:45.760 --> 0:04:48.920 be good for three years, improve your disclosure system so 0:04:48.960 --> 0:04:52.599 that you never deceive regulators again and don't commit any ponies. 0:04:52.839 --> 0:04:55.320 And if it turns out that there was a felony 0:04:55.360 --> 0:04:59.960 associated some evidence of criminal activity in either hiding or concealing, 0:05:00.080 --> 0:05:02.880 are not doing the proper work or disclosing it about 0:05:02.880 --> 0:05:05.560 the door plug? And that would be adequate grounds for 0:05:05.640 --> 0:05:06.960 the government to tear up the DPA. 0:05:07.720 --> 0:05:11.239 And there was congressional testimony that Boeing was not cooperating 0:05:11.279 --> 0:05:13.760 and wouldn't give over the list of people who'd worked 0:05:13.800 --> 0:05:17.039 on the door and said records had apparently disappeared, and 0:05:17.080 --> 0:05:20.239 all this was hampering the government's investigation into the incident. 0:05:20.320 --> 0:05:22.400 There should be like, you know, some kind of a 0:05:22.400 --> 0:05:24.560 work review exactly over who did what and who would 0:05:24.520 --> 0:05:26.120 the last people to look at the door plug, And 0:05:26.120 --> 0:05:28.000 there was a there was a gap or at least 0:05:28.279 --> 0:05:31.240 Boeing didn't have anything. And there was a whistleblower who 0:05:31.279 --> 0:05:34.400 testified in Congress, you know, like two weeks ago, saying 0:05:34.400 --> 0:05:36.400 that he was aware of paperwork and he had handed 0:05:36.400 --> 0:05:39.800 it over to the FBI. So, yes, we have whistleblowers, 0:05:39.839 --> 0:05:43.600 current and former who stay pluggedn't no pun intended to 0:05:43.640 --> 0:05:47.120 what's going on at Boeing, you know, also calling attention 0:05:47.160 --> 0:05:47.680 to this stuff. 0:05:47.800 --> 0:05:52.520 So the victims' families have certain rights under the crime victims' 0:05:52.760 --> 0:05:55.880 rights laws, and tell us about the attorney who's working 0:05:55.920 --> 0:05:58.800 for them on this deferred prosecution agreement. 0:05:59.480 --> 0:06:02.760 Hey, former federal judge a laury named Paul Cassel, based 0:06:02.800 --> 0:06:06.800 in Utah took up the cause of trying to attack 0:06:06.839 --> 0:06:10.279 the DPA intervene in the district in Texas where this 0:06:10.360 --> 0:06:14.120 case was brought, and he was shot out Initially. The 0:06:14.200 --> 0:06:17.320 judge eventually recognized that the families were victims and that 0:06:17.360 --> 0:06:20.320 they were improperly shut out by the Just Department from 0:06:20.560 --> 0:06:24.640 proper consultation before reaching this determination in the DPA. It 0:06:24.640 --> 0:06:27.200 doesn't mean that the victims get a veal power over 0:06:27.200 --> 0:06:30.599 what the prosecutors are going to decide, but it does 0:06:31.080 --> 0:06:33.920 force the government to make sure they keep victims' families 0:06:33.920 --> 0:06:35.400 surprised of what they're doing. 0:06:35.400 --> 0:06:37.839 And the families of the victims had a meeting with 0:06:37.880 --> 0:06:39.400 the Justice Department last week. 0:06:39.560 --> 0:06:41.400 Just from this time wants to do right by the 0:06:41.480 --> 0:06:43.000 victims in so far as to make sure they do 0:06:43.120 --> 0:06:46.640 not repeat the mistakes of three years ago. So the 0:06:46.680 --> 0:06:49.000 government they have six months to determine whether or not 0:06:49.040 --> 0:06:52.080 the company complied with the elements of the DPA, and 0:06:52.160 --> 0:06:55.160 six months from January seventh to July seventh. So as 0:06:55.200 --> 0:06:58.400 that date is approaching, the family's gotten more concerned. The 0:06:58.400 --> 0:07:00.599 government decided to bring them in to let them know 0:07:00.640 --> 0:07:03.000 what was going on, also give them an opportunity if 0:07:03.000 --> 0:07:06.400 they had any evidence to indicate that Boeing had violated 0:07:06.440 --> 0:07:08.880 the terms of the DPA, they should bring it there. 0:07:09.080 --> 0:07:11.640 Although that's unrealistic. It's not up to the families to 0:07:11.680 --> 0:07:14.320 do an investigation. It's actually the Justice Department's job. But 0:07:15.200 --> 0:07:17.520 they did at least do what they did not do 0:07:17.640 --> 0:07:20.720 four years ago and keep them apprized. They went a 0:07:20.760 --> 0:07:23.480 little further and gave them some information about how this 0:07:23.600 --> 0:07:26.480 is going to go down. They told the victims' families 0:07:26.520 --> 0:07:28.720 and their lawyers if they hadn't made a decision yet 0:07:28.760 --> 0:07:31.680 on what to do, whether not to tear up the 0:07:31.760 --> 0:07:35.320 DPA or withdraw the true charge that was lodged three 0:07:35.360 --> 0:07:38.320 years ago. Because they haven't made that decision, they expect 0:07:38.360 --> 0:07:40.720 and hope to make it by the end of May 0:07:40.760 --> 0:07:44.720 early June, in other words, and they said that if 0:07:44.760 --> 0:07:48.440 they decide to withdraw the charge, the families will be 0:07:48.480 --> 0:07:50.440 the first to know. They won't have to learn about 0:07:50.480 --> 0:07:53.160 in the media the way they did three years ago. However, 0:07:53.200 --> 0:07:55.520 if they do decide to tare up the DPA, they 0:07:55.600 --> 0:07:58.280 want to give Boeing at least thirty days noticed so 0:07:58.360 --> 0:08:01.560 they can appeal or argue against it, et cetera. So 0:08:01.640 --> 0:08:04.960 that was the message from the Justice Department to the families. 0:08:05.040 --> 0:08:07.960 Last week you mentioned Paul Cassell. He said, we have 0:08:08.080 --> 0:08:11.240 no idea what the Justice Department will do, which leads 0:08:11.280 --> 0:08:13.680 us to believe they're still in bed with Boeing, and 0:08:13.840 --> 0:08:16.600 if they move to dismiss, we'll fight that motion vigorously. 0:08:17.200 --> 0:08:19.880 Do you really think they'll dismiss when there's this criminal 0:08:19.880 --> 0:08:25.120 investigation and other investigations into the Alaska air incident. I mean, 0:08:25.160 --> 0:08:28.000 it would be controversial if they let Boeing off the hook. 0:08:27.880 --> 0:08:31.080 Right, So politically, the optics of this for the Justice 0:08:31.120 --> 0:08:33.040 Partment would not be good. If they determined that Boeing 0:08:33.240 --> 0:08:35.280 as in fact not violated any term of it, they 0:08:35.320 --> 0:08:37.840 would draw the charge. They might be able to justify 0:08:37.880 --> 0:08:40.040 that legally, but it will look bad. It'll just be 0:08:40.080 --> 0:08:42.200 another set of news cycles. At the same time, you 0:08:42.200 --> 0:08:44.760 should not bring a charge because you don't want to 0:08:44.760 --> 0:08:47.480 look bad. And clearly there's enough here because of this 0:08:47.960 --> 0:08:51.160 Alaska Air incident. The Alaska Air incident really did trigger 0:08:51.200 --> 0:08:53.559 this investigation. I think if it weren't for that incident, 0:08:54.000 --> 0:08:56.600 that would be well on our way to a withdrawal. 0:08:56.600 --> 0:08:59.000 But I think it's clear that the government is taking 0:08:59.000 --> 0:09:02.080 this seriously. Paul. I think that's a default position because 0:09:02.080 --> 0:09:03.920 of what happened a few years ago and that the 0:09:03.960 --> 0:09:07.480 Justice Department has been unhelpful to the families. But at 0:09:07.520 --> 0:09:09.640 the same time, it's not up to the Justice Department 0:09:09.679 --> 0:09:11.840 to show their cards, you know, and if we take 0:09:11.880 --> 0:09:13.679 them at their word that they haven't decided yet, right, 0:09:13.720 --> 0:09:15.440 it would be improper for them to show their card. 0:09:15.559 --> 0:09:18.320 So if the just Go Barnment does move to withdraw 0:09:18.400 --> 0:09:21.280 this charge, then Paul Cassell does plan to litigate it 0:09:21.320 --> 0:09:23.679 in the in Fort Worth. And this is far more 0:09:23.760 --> 0:09:26.760 legal detail than you know, most people want to know, 0:09:27.160 --> 0:09:30.440 but there's precedent. There have been several decisions going up 0:09:30.480 --> 0:09:34.520 to the Supreme Court in recent years about judicial challenges 0:09:34.800 --> 0:09:38.360 to defer prosecution agreements. When just a deferred prosecution agreement, 0:09:38.640 --> 0:09:41.120 it's not legal until it comes in and then you know, 0:09:41.120 --> 0:09:43.000 you get a judge to sign off on it. And 0:09:43.080 --> 0:09:45.320 most of the time judges are fine with it. But 0:09:45.400 --> 0:09:47.520 there have been a few cases, particularly in Washington, d C. 0:09:47.720 --> 0:09:51.600 Federal judges where they've challenged the government on why you 0:09:51.640 --> 0:09:53.240 give them, you know, these guys such a good deal. 0:09:53.280 --> 0:09:56.320 In other cases and one of them, the judge you know, 0:09:56.600 --> 0:09:58.760 didn't want to approve the DPA because he felt that 0:09:58.840 --> 0:10:01.640 the prosecutors were too lenient on this foreign company that 0:10:01.640 --> 0:10:04.679 had you know, facilitated weapons transferred to Iran. And then 0:10:04.679 --> 0:10:06.439 it went to the Supreme Court and the Supreme Court 0:10:06.480 --> 0:10:09.920 decided that in a different prosecution agreement, is beyond the 0:10:09.960 --> 0:10:12.960 purview of the judicial branch of the government to question 0:10:13.160 --> 0:10:17.880 prosecutorial decisions by the executive branch unless there's some evidence 0:10:17.880 --> 0:10:21.280 of corruption or some wrongful conduct. But it's not up 0:10:21.280 --> 0:10:23.079 to the juici branch to decide, you know, this is 0:10:23.080 --> 0:10:26.160 a bad deal, you should go redo it. So the default, 0:10:26.280 --> 0:10:29.360 particularly for this judge until now in Fort Worth, has 0:10:29.440 --> 0:10:31.240 been like, you know, even if I want to, my 0:10:31.280 --> 0:10:34.360 hands are tired. It can't do anything. However, the Fifth 0:10:34.360 --> 0:10:37.520 Circuit last year, you know, ruled on the Crime Victims 0:10:37.559 --> 0:10:41.440 Rights Act, et cetera, and allowed, in a message directly 0:10:41.480 --> 0:10:43.400 to the judge it's involved in this case, said that 0:10:43.640 --> 0:10:45.360 you only need to approve this if you think it's 0:10:45.360 --> 0:10:47.560 in the public interest. In other words, if the government 0:10:47.559 --> 0:10:51.040 decides to withdraw the charge, then the Fifth Circuit gave 0:10:51.720 --> 0:10:54.560 the federal judge and Fort Worth the elbow room to 0:10:54.600 --> 0:10:57.200 decide whether or not that would be in the public interest. 0:10:57.640 --> 0:11:01.800 So Fifth Circuit once again out on a limb. 0:11:01.840 --> 0:11:05.160 Yes exactly. That's component of this. If the government does 0:11:05.200 --> 0:11:08.559 decide to basically withdraw the charge and bowen, can you 0:11:09.080 --> 0:11:11.880 go in peace after the events of five years ago, 0:11:12.200 --> 0:11:13.920 that needs to be approved by the judge and there'll 0:11:13.960 --> 0:11:15.240 be vigorous argument about it. 0:11:15.440 --> 0:11:17.800 So we may find out by the first week of June, 0:11:17.840 --> 0:11:22.000 but certainly by July. Thanks so much, Greg. That's Bloomberg 0:11:22.120 --> 0:11:25.200 Legal Reporter Greg Ferrell coming up next on the Bloomberg 0:11:25.280 --> 0:11:29.120 Law Show. The EPA has some tough new power plant rules, 0:11:29.200 --> 0:11:34.360 and there's sure to be litigation. This is Bloomberg. The 0:11:34.440 --> 0:11:38.720 Environmental Protection Agency has proposed new regulations that would force 0:11:38.840 --> 0:11:42.760 coal fired power plants to capture smoke stack emissions or 0:11:42.800 --> 0:11:47.320 shut down, the Biden administration's most ambitious effort yet to 0:11:47.520 --> 0:11:51.000 roll back planet warming pollution from the power sector, the 0:11:51.080 --> 0:11:56.320 nation's second largest contributor to climate change, environmental legal experts 0:11:56.360 --> 0:11:59.800 and advocates so the administration checked all the right boxes 0:12:00.200 --> 0:12:04.600 to avoid the pitfalls that characterize the EPA's twenty twenty 0:12:04.640 --> 0:12:08.600 two defeat in the Supreme Court. But West Virginia's attorney 0:12:08.640 --> 0:12:12.800 general has already promised a lawsuit, and other Republican leaning 0:12:12.840 --> 0:12:16.600 states and industry groups are likely to follow, joining Me's 0:12:16.679 --> 0:12:20.480 environmental law expert Pat Parento, a professor at the Vermont 0:12:20.559 --> 0:12:24.080 Law and Graduate School. What do these new EPA rules do? 0:12:24.920 --> 0:12:27.440 So, there are four of them, and they're all aimed 0:12:27.480 --> 0:12:30.880 at coal fired power plants, although one of them also 0:12:30.920 --> 0:12:35.600 includes gas fire plants. But three of the rules deal 0:12:35.920 --> 0:12:40.840 with conventional what I would call conventional regulation of coal plants. 0:12:40.960 --> 0:12:44.440 One of them deals with mercury emissions. It's closing a 0:12:44.640 --> 0:12:50.240 loophole for plants that burn lignite, which is the lowest 0:12:50.480 --> 0:12:56.480 grade of coal and the dirtiest three times more mercury emissions, 0:12:56.640 --> 0:12:59.760 which of course are neurotoxins dangerous to children and fish 0:12:59.800 --> 0:13:04.240 and other things. And so the first rule just closes 0:13:04.320 --> 0:13:10.560 this loophole that exempted these lignite plants from regulation under 0:13:10.559 --> 0:13:13.800 the Clean Air Act. That's rule number one. Rule number 0:13:13.840 --> 0:13:20.600 two deals with toxic discharges from coal plants, which also 0:13:20.640 --> 0:13:26.040 include mercury, but in addition arsenic and some other toxic pollutants. 0:13:26.559 --> 0:13:30.160 And that rule is under the Clean Water Act, and 0:13:30.400 --> 0:13:35.080 it simply updates rules that should have been updated many 0:13:35.160 --> 0:13:38.240 years ago. In fact, they were updated by Obama, but 0:13:38.320 --> 0:13:40.920 of course then they were repealed by Trump, and so 0:13:41.080 --> 0:13:45.760 now they're being reinstated by Biden. So the second rule 0:13:46.760 --> 0:13:51.520 toxic discharges from coal fired power plants. The third rule 0:13:52.000 --> 0:13:57.600 deals with the disposal of coal ash, which is also 0:13:58.000 --> 0:14:05.520 hazardous and contains heavy metals again, mercury, cadmium, selenium, lots 0:14:05.520 --> 0:14:10.120 of nasty stuff. So the third rule is frankly just 0:14:10.600 --> 0:14:17.000 closing another loophole that didn't require cleanup of abandoned coal 0:14:17.240 --> 0:14:20.520 ash pits and ponds, and these are the things that 0:14:20.880 --> 0:14:25.800 sometimes fail and overflow. We had a huge disaster in 0:14:25.800 --> 0:14:30.080 two thousand and eight at the Kingston coal plant run 0:14:30.120 --> 0:14:33.920 by TVA in Tennessee. We had a more recent one 0:14:33.920 --> 0:14:37.600 in two thousand and eighteen where there was a spill 0:14:37.640 --> 0:14:41.080 of coal ash into the Dan River in North Carolina. 0:14:41.360 --> 0:14:45.360 So the third rule is just another closing of a 0:14:45.360 --> 0:14:51.080 loophole requiring cleanup of these abandoned ash pits. The fourth 0:14:51.160 --> 0:14:54.320 rule is the big one and the one that's most controversial, 0:14:54.760 --> 0:14:58.800 and that's the rule that replaces the Clean Power Plan 0:14:59.000 --> 0:15:04.280 that Obama had adopted and the Supreme Court of course killed. First, 0:15:04.400 --> 0:15:07.680 the Supreme Court put a stay on the Clean Power 0:15:07.680 --> 0:15:11.520 Plan so it never took effect. And secondly, it issued 0:15:11.560 --> 0:15:17.800 this infamous decision West Virginia versus EPA, which not only 0:15:17.920 --> 0:15:21.440 invalidated the Clean Power Plan, which, by the way, EPA 0:15:22.000 --> 0:15:25.320 had said it had no intention of reinstituting, it was 0:15:25.360 --> 0:15:28.560 moving on to a different approach. But nevertheless, the Supreme 0:15:28.600 --> 0:15:31.960 Court struck it down and adopted what we now know 0:15:32.800 --> 0:15:37.720 as the Major Question Doctrine. The fourth rule is called 0:15:38.480 --> 0:15:47.760 greenhouse Gas regulation of existing coal fired power plants and 0:15:48.040 --> 0:15:54.880 new gas fired power plants. EPA's original proposal was to 0:15:54.960 --> 0:15:59.640 regulate both new and existing gas plants, but in the 0:15:59.680 --> 0:16:06.280 final rule, EPA opted not to regulate existing power plants. 0:16:06.400 --> 0:16:11.880 That's through an awful lot of criticism from the environmental 0:16:11.880 --> 0:16:17.200 community and from people concerned about climate change. But EPA 0:16:17.560 --> 0:16:24.480 is counting on dealing with existing gas plants. Should President 0:16:24.600 --> 0:16:27.880 Biden get a second term A big question mark, of course, 0:16:28.160 --> 0:16:31.480 but that's what EPA decided. They're going to postpone dealing 0:16:31.520 --> 0:16:34.920 with existing gas plants to the future. 0:16:35.880 --> 0:16:37.840 And pat Most people who listen to the show have 0:16:38.000 --> 0:16:42.080 heard about the Major Questions doctrine, but explain it for us. 0:16:43.560 --> 0:16:47.960 It's a new way of interpreting agencies authority under statutes 0:16:48.000 --> 0:16:52.520 that aren't crystal clear, and that doctrine says, if a 0:16:52.640 --> 0:16:59.640 rule would have quote vast political and economic consequences, then 0:17:00.080 --> 0:17:04.760 Congress must have explicitly in the text of the law 0:17:05.560 --> 0:17:11.200 authorize EPA or any other agency to undertake that kind 0:17:11.240 --> 0:17:16.600 of regulation. It means no deference to the agency's interpretation, 0:17:17.320 --> 0:17:24.320 regardless of policy considerations, regardless of the agency's expertise, regardless 0:17:24.359 --> 0:17:29.760 of the fact that Congress oftentimes delegates broad authority the 0:17:29.920 --> 0:17:35.720 agencies to implement incredibly complex laws like the Clean Air Act, 0:17:36.080 --> 0:17:42.560 dealing with incredibly difficult problems like the climate crisis climate disruption. 0:17:43.400 --> 0:17:46.800 Regardless of all of that that the Supreme Court in 0:17:46.840 --> 0:17:50.720 the West Virginia case, the Court will decide, which means 0:17:51.119 --> 0:17:55.200 five members of the Court will decide what the law 0:17:55.320 --> 0:17:59.399 means and what the agency's authority is. 0:18:00.359 --> 0:18:03.359 I've read that this new rule could require the power 0:18:03.359 --> 0:18:08.919 industry to install billions of dollars worth of emissions control technologies. 0:18:09.119 --> 0:18:15.040 It's a complicated rule. It's staggered. Okay, So what the 0:18:15.160 --> 0:18:22.320 rule says. If you plan to close your coal plant 0:18:23.119 --> 0:18:26.760 by twenty thirty two, you don't have to do anything. 0:18:27.400 --> 0:18:35.440 If you plan to operate your coal plant beyond twenty 0:18:35.560 --> 0:18:43.520 thirty nine, you have to install carbon capture and sequestration 0:18:44.320 --> 0:18:51.479 technology CCS that will achieve ninety percent removal of the 0:18:51.520 --> 0:18:56.560 carbon by twenty thirty two. So you can see how 0:18:56.680 --> 0:19:01.840 complicated this is. It's designed, you could say, to encourage 0:19:02.600 --> 0:19:08.160 owners of coal plants to retire them early, or if 0:19:08.200 --> 0:19:11.679 you want to take the pejorative, you can say it's 0:19:11.720 --> 0:19:16.960 forcing premature closure of coal plants. You see what I mean. 0:19:17.560 --> 0:19:20.720 So it's not just future coal plants, then it's affecting 0:19:20.760 --> 0:19:21.880 coal plants today. 0:19:22.359 --> 0:19:25.200 Oh yeah, it's existing. There will be no new coal plants. 0:19:25.280 --> 0:19:27.199 There haven't been for ten years. There won't ever be 0:19:27.240 --> 0:19:30.720 another new coal plant. That's not my prediction. That's the 0:19:30.840 --> 0:19:34.400 Energy and Information Agency of does as that there isn't 0:19:34.440 --> 0:19:36.879 going to be any more new coal plants. So this 0:19:37.000 --> 0:19:40.119 is all about and there are two hundred coal plants 0:19:40.119 --> 0:19:43.440 in the country, so this is all about existing coal plants. 0:19:43.840 --> 0:19:48.240 So what's West Virginia and other Republican leaning states going 0:19:48.240 --> 0:19:50.320 to argue to get this rule shut down. 0:19:50.480 --> 0:19:53.280 They're worried about closing the coal plants that exist now, 0:19:54.160 --> 0:19:57.560 and they have three arguments. One, they think that this 0:19:57.720 --> 0:20:02.359 is just a repeat of what happened in the West 0:20:02.440 --> 0:20:06.160 Virginia versus EPA case. And they're arguing that the major 0:20:06.240 --> 0:20:11.240 question doctrine means EPA doesn't have the authority to impose 0:20:11.760 --> 0:20:20.600 these kinds of high costs with the clear intent to 0:20:20.640 --> 0:20:24.040 put coal out of business. That's number one. So they're 0:20:24.040 --> 0:20:26.320 going to try to get this case back before the 0:20:26.359 --> 0:20:29.480 Supreme Court and get the Supreme Court to rules that, oh, 0:20:29.520 --> 0:20:33.160 this is just like what we struck down before in 0:20:33.200 --> 0:20:36.560 West Virginia versus EPA. That's not true, and I can 0:20:36.600 --> 0:20:38.600 come back to that, but that's going to be their argument. 0:20:39.320 --> 0:20:42.040 The second argument they're going to make is that this 0:20:42.240 --> 0:20:48.040 technology you're talking about, this CCS carbon capture and sequestrations. 0:20:48.080 --> 0:20:53.720 While it's true it has been demonstrated at a pilot 0:20:53.840 --> 0:21:00.560 level or a small scale level, it's not adequately demonstrated 0:21:01.520 --> 0:21:06.359 to scale up to a ninety percent removal rate in 0:21:06.440 --> 0:21:11.200 the timeframe. You're talking about complicated system. It requires capturing 0:21:11.920 --> 0:21:17.680 the emissions at the plant, liquefying them, putting them into 0:21:17.680 --> 0:21:21.080 a pipeline, and taking them to an area where you 0:21:21.119 --> 0:21:26.560 can inject the carbon into a formation that will hold 0:21:26.600 --> 0:21:34.440 it basically forever. So it's this big, complex, very expensive system, 0:21:35.000 --> 0:21:40.119 and it's not been demonstrated to the point where coal 0:21:40.280 --> 0:21:46.040 plant operators can achieve it in the timeframe you've provided, 0:21:46.160 --> 0:21:49.480 even though the timeframe is lengthy. I mean, they have 0:21:49.720 --> 0:21:53.720 at least eight years to install these systems. But they're 0:21:53.720 --> 0:21:56.119 making an argument, we can't do it, we won't be 0:21:56.160 --> 0:21:58.520 able to do it, and your rule is simply going 0:21:58.600 --> 0:22:02.120 to shut us down. You can't do that, and then 0:22:02.160 --> 0:22:06.719 the third thing they're arguing is that as you begin 0:22:06.880 --> 0:22:11.640 to force the closure of these coal plants, which are 0:22:12.160 --> 0:22:18.040 baseload plants that can operate even when the sun isn't 0:22:18.080 --> 0:22:21.760 shining and the wind isn't blowing to make up for 0:22:22.320 --> 0:22:27.879 the intermittency of renewable energy systems which are coming online 0:22:28.280 --> 0:22:32.320 more and more. If you take these base load plants 0:22:32.920 --> 0:22:36.840 out of the system, you're going to have reliability problems 0:22:36.920 --> 0:22:40.719 big time. So the third big argument is you're going 0:22:40.760 --> 0:22:45.280 to destabilize our grid and you're going to cause people 0:22:45.320 --> 0:22:50.440 to have blackouts and interruptions in power service in many 0:22:50.520 --> 0:22:53.240 areas of the country. So those are their three big arguments. 0:22:53.520 --> 0:22:56.080 So tell me why this Supreme Court and that West 0:22:56.160 --> 0:23:01.400 Virginia decision was six to three down ideological lines. Why 0:23:01.400 --> 0:23:04.439 wouldn't this Supreme Court agree with them? I mean, this 0:23:04.480 --> 0:23:07.399 is not the most environmentally friendly Supreme Court. 0:23:08.760 --> 0:23:12.080 Oh that's true. And we won't know, of course, and 0:23:12.240 --> 0:23:15.399 listen until we see what the Supreme Court does with this. 0:23:15.560 --> 0:23:18.920 But here's how the rule differs. The thing that troubled 0:23:19.760 --> 0:23:22.439 the Supreme Court and Chief Justice Roberts, who wrote the 0:23:22.480 --> 0:23:27.640 opinion in West Virginia, was that EPA was taking a 0:23:27.840 --> 0:23:33.960 system wide approach to regulating the power plant sector, and 0:23:34.160 --> 0:23:39.159 that it was forcing what it called generation shifting from 0:23:39.480 --> 0:23:44.920 fossil fuel based plants gas and coal to renewable sources 0:23:45.080 --> 0:23:49.480 wind and solar, and Justice Roberts felt that went too far. 0:23:49.920 --> 0:23:54.119 That was an overreach Congress could not possibly have intended 0:23:54.359 --> 0:23:57.679 in the nineteen seventy Clean Air Act, which is what 0:23:57.840 --> 0:24:02.240 was being interpreted to give EPA that kind of broad 0:24:02.600 --> 0:24:08.280 energy policy authority. That's what bothered Justice Roberts. He thought 0:24:08.520 --> 0:24:11.800 the rule was unlike any rule EPA had ever adopted. 0:24:11.880 --> 0:24:14.960 That's arguable, but that's what he thought. Thought it was novel. 0:24:15.160 --> 0:24:18.679 He thought it was based on an obscure provision of 0:24:18.720 --> 0:24:22.280 the Clean Air Act Section one eleven, which isn't obscure 0:24:22.280 --> 0:24:24.600 at all. It's been there from the beginning, and it 0:24:24.680 --> 0:24:27.520 was there for a very specific purpose. But nevertheless, he 0:24:27.600 --> 0:24:31.560 thought it was an obscure provision, and so he characterized 0:24:31.600 --> 0:24:36.159 this as Congress wouldn't hide an elephant in a mousehole. 0:24:36.400 --> 0:24:37.600 So that's the metaphor. 0:24:37.960 --> 0:24:41.400 I remembered that hard you forget, right. 0:24:41.440 --> 0:24:44.720 How could you forget? So that's the idea of this great, 0:24:44.800 --> 0:24:50.119 big authority with vast economic consequences hidden in this little 0:24:50.160 --> 0:24:53.120 mousehole of a provision. That's the way he viewed it. 0:24:53.960 --> 0:24:58.480 This time around, EPA has gone to great legs. I mean, 0:24:58.680 --> 0:25:03.320