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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: Is time ticking away for TikTok or is it just

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Speaker 2: another stage in a year's long tech drama. The wildly

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Speaker 2: popular video app used by one hundred and seventy million

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Speaker 2: Americans is facing its most serious threat to date. A

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Speaker 2: bill that would ban TikTok from operating in the US

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Speaker 2: or force a sale by its Chinese parent, passed overwhelmingly

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Speaker 2: in the House on Wednesday. Lawmakers cite privacy risks and

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Speaker 2: national security fears over the Chinese Communist Party's perceived ability

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Speaker 2: to use data from Americans for political gains. Here's North

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Speaker 2: Carolina Republican Senator Tom Tillis, We have.

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Speaker 3: To recognize that information on any of these platforms are

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Speaker 3: at risk of going to the Chinese Communist Party. So

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Speaker 3: this is one step in one. I think's a long

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Speaker 3: journey to hold Hi accountable.

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Speaker 2: But others like California Republican Congressman Tom McClintock, have raised

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Speaker 2: free speech concerns and fear the US is going down

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Speaker 2: a dangerous path.

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Speaker 4: The answer to CCPA style propaganda is not CCPA style oppression.

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Speaker 4: Let us slow down before we blunder down this very

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Speaker 4: steep and slippery slope.

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Speaker 2: The Chinese government has said it would oppose any forced

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Speaker 2: sale and its approval is needed, and TikTok CEOs showed too,

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Speaker 2: promised to fight back in a very American way.

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Speaker 5: We will continue to do all we can, including exercising

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Speaker 5: all legal.

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Speaker 2: Rights, and that's something the company did successfully when then

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Speaker 2: President Donald Trump ordered its Chinese parent, Byte Dance to

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Speaker 2: sell TikTok back in twenty twenty. My guest is Eric Goleman,

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Speaker 2: a professor at Santa Clara University Law School and co

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Speaker 2: director of its High Tech Law Institute. Eric explained why

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Speaker 2: so many lawmakers are concerned about TikTok and it's Chinese parent.

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Speaker 5: A lot of the legislature is object to TikTok principally

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Speaker 5: because of the fact that it's related to China, and

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Speaker 5: there's such senophobia that it becomes a very politically popular

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Speaker 5: move to tweak China. So it's not so much that

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Speaker 5: the representatives care about the privacy issues. They care about

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Speaker 5: China and they're signaling that to their voters.

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Speaker 2: Lawmakers often point to a Chinese security law that forces

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Speaker 2: companies to turn over information when requested, but TikTok CEO

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Speaker 2: says the company has never been asked to share US

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Speaker 2: user data with Chinese authorities and won't do so if asked,

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Speaker 2: and also that American data is now on servers in

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Speaker 2: Texas run by Oracle.

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Speaker 4: The bottom line is this American data stort on American soil,

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Speaker 4: American company overseen by American personnel.

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Speaker 2: So are those lawmakers concerns something we should take seriously?

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Speaker 5: In general? I think we should be concerned about government

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Speaker 5: access to our private information online. But I don't restrict

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Speaker 5: my concern to China. I feel that way about all

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Speaker 5: governments across the globe, including here in the United States,

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Speaker 5: where government agencies have a variety of ways about hating

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Speaker 5: private online communications that in fact we would prefer that

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Speaker 5: they don't have access to. Indeed, Europe cut off data

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Speaker 5: flows with the United States because of the concern in

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Speaker 5: Europe that the US government had access to European private

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Speaker 5: information online. So if that's the concern, then trying to

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Speaker 5: target China and doing it in this way is really

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Speaker 5: an indirect solution. We really ought to have a broad,

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Speaker 5: society wide conversation about when governments have access to private

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Speaker 5: citizen data and what we're going to do to protect

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Speaker 5: the interest of private citizens.

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Speaker 2: So tell us about the spill what it would do.

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Speaker 5: The bill is styled as a divestiture law. The idea

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Speaker 5: is to get the ownership of TikTok out of the

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Speaker 5: hands of people related to China. In practice, it's almost

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Speaker 5: certainly going to turn into a TikTok ban. It would

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Speaker 5: ban TikTok in the United States and require app stores

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Speaker 5: not to allow the installation of TikTok. So it's trying

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Speaker 5: to just kick TikTok out of the US market.

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Speaker 2: So what the lawmakers are saying is that by dance,

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Speaker 2: the Chinese parent would have six months to divest TikTok.

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Speaker 5: Yeah, just to be clear, nobody expects that to really

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Speaker 5: be the outcome. There's a limited number of people who

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Speaker 5: might be interested in buying TikTok, and the forced sale

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Speaker 5: would almost certainly depress the prices. But I want to

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Speaker 5: analogize this to what happened after the Ukrainian War, where

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Speaker 5: Russia put the squeeze on US owned enterprises and force

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Speaker 5: them to sell to Russian owners, and in so doing

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Speaker 5: they transferred billions of dollars of wealth from the US

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Speaker 5: owners to new Russian owners who bought up pennies on

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Speaker 5: the dollar, and so essentially the Congress is doing what

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Speaker 5: Russia did to our companies, and that really seems like

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Speaker 5: the wrong inspiration for US to be drawn from.

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Speaker 2: China's Foreign Ministry also said that there was a failure

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Speaker 2: to provide evidence that TikTok is a threat to the

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Speaker 2: US national security. I've heard a lot of blanket statements

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Speaker 2: that TikTok is a national security threat, but has the

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Speaker 2: US government provided any actual evidence of that.

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Speaker 5: So one of the big questions is exactly how is

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Speaker 5: TikTok a threat to national security? And there's been some

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Speaker 5: seculation about this, but the best evidence of this has

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Speaker 5: not been revealed to the public. It's only been disclosed privately,

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Speaker 5: with the justification that because it's in national security interests,

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Speaker 5: we couldn't tell the public or we would jeopardize national security.

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Speaker 5: But that kind of rationale makes it impossible for us

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Speaker 5: to actually scrutinize credibly the evidence, and as a result,

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Speaker 5: it's possible that that evidence is not credible. And in fact,

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Speaker 5: the efforts to ban TikTok were initiated in the Trump

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Speaker 5: administration and some of the judges got to see that

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Speaker 5: evidence and they did not find a persuasive Now, maybe

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Speaker 5: there's new evidence that we haven't seen yet, but the

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Speaker 5: most likely scenario is that national security is being invoked

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Speaker 5: as a concept, not actually as pieces of specific credible

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Speaker 5: evidence to try and justify the ban.

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Speaker 2: The company TikTok has warned about the potential economic impact

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Speaker 2: on small business owners who depend on the app. It's

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Speaker 2: urged it's one hundred and seventy million US users to

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Speaker 2: speak out against it, and they have been influencers. Took

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Speaker 2: to Capital Hill on Wednesday. Members of Congress were flooded

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Speaker 2: with calls from angry constituents and small businesses are saying

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Speaker 2: ban would crush their business.

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Speaker 5: It's not just the economic impact, although I think that's

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Speaker 5: a helpful way of establishing a measuring stick, but so

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Speaker 5: many communities rely upon TikTok to communicate with each other,

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Speaker 5: and that can create new stars, celebrities, influencers who wouldn't

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Speaker 5: have had a voice any other way that are actually

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Speaker 5: quite helpful to the communities that they're speaking to. It

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Speaker 5: also has created a variety of different small business opportunities

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Speaker 5: where new entrants to a market can use social media,

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Speaker 5: including TikTok, in order to gain traction against incumbents who

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Speaker 5: otherwise would rather not give them any opportunity to grow.

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Speaker 5: So when Congress says that we want to ban TikTok,

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Speaker 5: what they're really saying is we don't want people talking

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Speaker 5: to each other in that way, and we don't care

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Speaker 5: that sometimes that's the very best way for those people

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Speaker 5: to help self actualize, or the very best way for

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Speaker 5: those entrepreneurs to help build their business. So Congress is

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Speaker 5: just saying, we'll care about any of that, all of

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Speaker 5: that we're willing to forego in this fibulous chasing of

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Speaker 5: quote national security interest.

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Speaker 2: TikTok is banned on federal devices, and Biden administration officials

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Speaker 2: help with the bill's technical language, but Biden's re election

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Speaker 2: campaign joined TikTok last month. I mean talk about irony.

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Speaker 5: Biden's presence on TikTok is a reminder that even if

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Speaker 5: Biden could reach audiences through other channels, there's value to

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Speaker 5: reach them through TikTok. And it is that exact political

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Speaker 5: speech benefit that shows how corrupt it is to try

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Speaker 5: and ban TikTok. It literally would suppress valuable political speech

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Speaker 5: coming from the President who would potentially sign the build

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Speaker 5: a bandit.

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Speaker 2: So now it's up to the Senate. Does it seem

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Speaker 2: like senators are not quite as enthralled with the bill

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Speaker 2: as the House was.

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Speaker 5: We don't know what's going to happen to the bill

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Speaker 5: in the Senate. The Senate leaders have created equivocation about

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Speaker 5: the bill, but the political calculus that got the bill

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Speaker 5: through the House is the same for the Senate. In

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Speaker 5: all cases, there's political goal for beating up on China

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Speaker 5: legitimately or not. So I don't think that the bill

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Speaker 5: will die in the Senate easily. It will be given

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Speaker 5: a fair amount of push I think forward. But number

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Speaker 5: of senators I think understand both the ridiculousness of the

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Speaker 5: justifications of the bill as well as the fact that

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Speaker 5: in the end, the bill is a censorship bill, and

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Speaker 5: I think there are some centers who just can't support that.

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Speaker 2: And TikTok says it plans to exhaust all legal challenges

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Speaker 2: before it considers divestiture. What kind of legal challenges could

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Speaker 2: TikTok bring?

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Speaker 5: No doubt that if the bill is enacted, it will

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Speaker 5: be challenged in court, and it will be challenged by

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Speaker 5: TikTok sometimes there's been discussion that TikTok doesn't have its

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Speaker 5: own First Amendment interest, it's just a vessel for other communications.

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Speaker 5: But TikTok publishes content in the form of the software

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Speaker 5: that it offers to its users, and it curates users

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Speaker 5: speech in a way that communicates its editorial Priorities and

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Speaker 5: courts have recognized that TikTok has a speech interest in

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Speaker 5: the publication of the software and in the way in

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Speaker 5: which it curates its content for its users. It's also

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Speaker 5: probable that it would be challenged by users of TikTok

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Speaker 5: expressing their own free speech concerns independent of the concerns

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Speaker 5: that TikTok has, and the bill will also impact the

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Speaker 5: app stores. The app stores have not previously taken the

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Speaker 5: leadership on challenging the constitutionality of TikTok bands or bands

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Speaker 5: of social media, but they're actually harmed as well. The

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Speaker 5: ban is kind of like telling a bookstore that they

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Speaker 5: can't carry a particular book. They can still run a bookstore,

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Speaker 5: but they just can't carry a book. And so for

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Speaker 5: the app store, they're being told you have to pull

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Speaker 5: an app off of your shelves. And by forcing the

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Speaker 5: bookstore or in this case, the app store to change

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Speaker 5: what it wants to offer to its users that encroaches

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Speaker 5: on the app speech interests as well. So there are

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Speaker 5: three different feach interests to play here tiktoks, TikTok users,

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Speaker 5: and the app stores, and we actually have some indication

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Speaker 5: of how those legal challenges might look. This is not

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Speaker 5: the first time that efforts to ban social media apps

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Speaker 5: have been attempted and have been challenged in court. Both

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Speaker 5: in the Trump administration, there was a ban on TikTok

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Speaker 5: and we chat, and then states have been enacting bands,

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Speaker 5: including an illegal challenge was filed against one in Montana.

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Speaker 5: And all of those efforts to ban in the past

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Speaker 5: have failed, including on First Amendment grounds those bands were unconstitutional.

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Speaker 5: And so it seems to me that TikTok and its

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Speaker 5: users and maybe the appsers have pretty good reasons to

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Speaker 5: think that they might win a First Amendment challenge.

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Speaker 2: So many lawsuits ahead if this bill is enacted. Thanks

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Speaker 2: so much, Eric, that's Professor Eric Goleman of Santa Clara

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Speaker 2: University Law School coming up. Accident investigators called Boeing's failure

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Speaker 2: to cooperate upsurd I'm June and Grosso when you're listening

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Speaker 2: to Bloomberg.

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Speaker 6: That was really praying.

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Speaker 2: I was asking God to put angels under the wings

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Speaker 2: to hold us up. It was January fifth when Alaska

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Speaker 2: Airlines Flight twelve andty two had a mid air emergency.

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Speaker 2: A door plug blowout left a gaping hole in the

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Speaker 2: side of the Boeing seven thirty seven Max, causing an

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Speaker 2: explosive decompression of the cabin, with terrified passengers exposed to

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Speaker 2: the freezing air at sixteen thousand feet as cell phones,

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Speaker 2: plane manuals, papers, and clothing were sucked out of the plane.

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Speaker 6: There was the loudest explosion. It was horrible. People were

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Speaker 6: very afraid. They were kind of crying and moaning.

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Speaker 2: It's been two months and officials with the National Transportation

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Speaker 2: Safety Board say they're still in the dark about who

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Speaker 2: performed the work on the fuselage panel that failed, despite

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Speaker 2: repeatedly asking Boeing for the information. NTSB share Jennifer Hammandy

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Speaker 2: told a Senate hearing last week that Boeing has withheld

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Speaker 2: documents and information, including the list of people who are

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Speaker 2: on the team that handles doors and door plugs.

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Speaker 7: We don't have the records, We don't have the names

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Speaker 7: of the twenty five people that is in charge of

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Speaker 7: doing that work in that facility. It's absurd that two

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Speaker 7: months later we don't have that.

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Speaker 2: The FAA has stepped up oversight of Boeing after several

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Speaker 2: recent incidents and questions about its quality assurance at its factories.

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Speaker 2: FAA Administrator Michael Whittaker says its inspectors are in Boeing's

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Speaker 2: factories demanding answers from the company and making sure their

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Speaker 2: airplanes are safe to fly on.

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Speaker 3: Right now, with our oversight, we're certifying them as safe.

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Speaker 2: Yes, and the US Department of Justice has opened a

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Speaker 2: criminal investigation into the mid air blowout and specifically whether

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Speaker 2: Boeing violated its twenty twenty one defer prosecution agreement over

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Speaker 2: two deadly crashes of its seven thirty seven Max aircraft.

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Speaker 2: Joining me is Alan levin Bloomberg Aviation safety reporter. Alan

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Speaker 2: start by telling us what is known about the Alaska

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Speaker 2: Airlines mid air emergency.

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Speaker 8: This plane took off from Portland in the evening of

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Speaker 8: January fifth, and when it reached about fourteen fifteen thousand feet,

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Speaker 8: the cabin pressure suddenly dropped. And what happened was there's

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Speaker 8: what is known as a door plug, which is basically

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Speaker 8: just a beefed up panel that covers an unused exit door,

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Speaker 8: and it blew off the side of the plane and

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Speaker 8: then there's like a river if you will pressurized air

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Speaker 8: flowing out through this, it can be quite powerful. Luckily,

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Speaker 8: they were not at you know, thirty five thousand feet

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Speaker 8: where it would have been even more intense. And also

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Speaker 8: luckily nobody was seated next to where the door plug

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Speaker 8: was or in the middle seat, so the two closest

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Speaker 8: seats were empty on a very full plane. It's kind

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Speaker 8: of lucky. As dramatic as this was, nobody was injured,

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Speaker 8: amazing no damage to the aircraft structure, and the pilots

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Speaker 8: were able to return and make an emergency landing.

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Speaker 2: The NTSB has determined that those missing bolts caused.

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Speaker 8: The incident, so it's a little early to say the cause,

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Speaker 8: but the NTSB did put out a preliminary report and

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Speaker 8: they said there's very strong indications that this plug or

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Speaker 8: this panel over the unused door was not attached properly

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Speaker 8: in the factory. It's in rent in Washington that Boeing

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Speaker 8: uses to complete the construction of these seven thirty seven

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Speaker 8: mac jets. In particular, there's an extensive mechanism to hold

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Speaker 8: the pressure on the door, about a dozen points of

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Speaker 8: these pins, but they don't ensure the door will never

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Speaker 8: come off. So Boeing adds four bolts in there so

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Speaker 8: the door can never move, and if installed correctly, they

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Speaker 8: work pretty well because this has never happened before. But

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Speaker 8: in this case, all the evidence suggests that the bolts

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Speaker 8: were not installed, and so the plane think it was

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Speaker 8: delivered in October, it went into service in November, and

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Speaker 8: it bumped around enough that it came loose on this flight.

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Speaker 2: So the NTSB accident investigators still don't know who performed

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Speaker 2: the work on that panel that failed.

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Speaker 8: That's correct. It's quite extraordinary actually how this investigation has evolved,

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Speaker 8: if you will, so any factory, you know, you theoretically

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Speaker 8: have records of the construction of whatever widgets they're making,

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Speaker 8: But in the aviation industry, the record keeping is on steroids.

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Speaker 8: Anytime you do a safety critical thing, you're supposed to

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Speaker 8: memorialize it, you know, in this case it's a computer system.

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Speaker 8: When that happens for a critical item like this, there's

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Speaker 8: supposed to be a second set of eyes who comes

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Speaker 8: in afterward and certifies that it was done properly. Now,

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Speaker 8: in this case, Boeing has said that they do not

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Speaker 8: have a record of this work being performed, and in fact,

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Speaker 8: they an extraordinary mission last week in a letter to

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Speaker 8: the Senate they said that it was a violation of

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Speaker 8: their processes and so as you say, as a part

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Speaker 8: of that, they do not know who performed the work,

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Speaker 8: and the NTSB has been asking Boeing for information. The

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Speaker 8: NTSB is frustrated because they can't get the names of

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Speaker 8: the key people to interview, so instead they had to

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Speaker 8: ask for the names of every person who might have

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Speaker 8: done work on a door assembly in the plan at

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Speaker 8: the time this plane was moving through. We're told it's

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Speaker 8: twenty five people. They were in rent in Washington at

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Speaker 8: this plant doing interviews last week. But the head of

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Speaker 8: the NTSB, Jennifer Hammandy, this week told senators that they

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Speaker 8: still have been unable to determine who did it.

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Speaker 2: So now, you also had a Federal Aviation Administration audit

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Speaker 2: of Boeing seven thirty seven MAX that found a plethora

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Speaker 2: of issues with the production process.

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Speaker 8: That's correct. We understand there were dozens of violations, but

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Speaker 8: we still don't know the detail. I would add that

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Speaker 8: the fa also audited a second company called Spirit Aerospace,

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Speaker 8: which builds the raw fuselage parts for the seven thirty

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Speaker 8: seven and then ships them to Washington State where Boeing

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Speaker 8: does the final assembly, and they found violations at Spirit

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Speaker 8: as well. It's relevant because the reason this door plug

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Speaker 8: got removed in the first place at the factory is

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Speaker 8: that there were improperly done rivets by the Spirit folks,

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Speaker 8: and so they had to go in and fix those.

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Speaker 8: But the bottom line is we don't know the precise

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Speaker 8: details of how bad the violations were, but they did

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Speaker 8: find dozens of cases where there were shortfalls in the

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Speaker 8: safety processes and record keeping, etc. That FAA expects.

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Speaker 2: So we've seen several mishaps with Boeing aircraft recently, flaming engines,

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Speaker 2: tires falling from the sky, engine failures over the Pacific,

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Speaker 2: malfunctioning rudders, issues with wiring gears and hydraulic systems. It

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Speaker 2: strikes me as really concerning. Well.

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Speaker 8: I have two almost contradictory points here. One is that

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Speaker 8: in the case of the tire falling off, it was

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Speaker 8: quite dramatic. Somebody video taped it and the tire came

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Speaker 8: down and hit a car in a parking lot. It

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Speaker 8: was in San Francisco. You know that's not a good look,

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Speaker 8: but it was a twenty plus year old plane. That

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Speaker 8: failure had absolutely nothing to do with Boeing. We don't

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Speaker 8: know what happened, but you think it would be related

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Speaker 8: to maintenance somehow. Quite frankly, if you keep an eye

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Speaker 8: on incidents on a daily basis, as I've done many years,

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Speaker 8: these things happen all the time. I think it's fair

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Speaker 8: to say the accident rates are remarkable. They'd never been better,

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Speaker 8: and these incidents, I think demonstrate that the safety net

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Speaker 8: is pretty robust. But I would also say that one

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Speaker 8: of those incidents that you mentioned does speak to broader

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Speaker 8: issues with Boeing. There was a notice by the federal

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Speaker 8: government last week that seven thirty seven MAX wiring had

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Speaker 8: been improperly installed, and what happened was a flight control

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Speaker 8: device known as a spoiler was activating without a pilot

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Speaker 8: intending for it to activate. That speaks to some of

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Speaker 8: these very same issues with quality that we've seen with

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Speaker 8: Boeing in this door plug.

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Speaker 2: The Department of Justice has opened a criminal investigation into

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Speaker 2: the Alaska Airlines incident examining whether it falls under the

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Speaker 2: government's twenty twenty one deferred prosecution agreement with Boeing. And

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Speaker 2: by the way, the accident took place just two days

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Speaker 2: before that agreement was to expire. Tell us about that.

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Speaker 8: Several years ago, after these two fatal accidents in twenty

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Speaker 8: eighteen and twenty nineteen involving seven thirty seven Max aircraft.

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Speaker 8: If you recall, the accidents were caused at least in

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Speaker 8: part by a bad design that Boeing had put into

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Speaker 8: the plane, and afterward the Justice Department reached an agreement

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Speaker 8: not to prosecute Boeing, and in exchange, Boeing admitted to

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Speaker 8: a violation and agreed to pay a large civil penalty

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Speaker 8: and then also agreed to essentially clean up attact over

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Speaker 8: a three year period. That period, as you say, was

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Speaker 8: about to expire. The Justice Department has six months to

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Speaker 8: decide whether Boeing has violated is this earlier agreement. We

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Speaker 8: understand that they've convened a grand jury to look at

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Speaker 8: whether there are criminal charges to be brought. There are

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Speaker 8: two possibilities. We understand it's possible they could say that

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Speaker 8: Boeing violated the earlier agreements and then they would bring

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Speaker 8: the charges on that, or they are also potentially looking

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Speaker 8: at bringing charges related to the actual January fifth failure. Now,

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Speaker 8: I would note some countries France, for example, almost always

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Speaker 8: files a criminal charge after an airline accident, but it's

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Speaker 8: very unusual in the US and quite controversial. The National

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Speaker 8: Transportation Safety Board can't stop the DOJ and never would

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Speaker 8: try to do that, but they operate an environment in

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Speaker 8: which they never bring criminal charges or even civil violations

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Speaker 8: against entities that have accidents, and they encourage people to

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Speaker 8: speak freely about how a failure occurred so that they

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Speaker 8: can try to prevent it from happening in the future.

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Speaker 8: And you can imagine a case like this where the

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Speaker 8: Department of Justice is panneling a grand jury and all

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Speaker 8: the workers on the shop floor are going to hire

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Speaker 8: lawyers and perhaps decline to speak to the NTSB. It's

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Speaker 8: happened on other non aviation accidents, but some pretty high

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Speaker 8: profile fatal accidents that NTSP has looked at in recent

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Speaker 8: years where they weren't able to interview key participants because

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Speaker 8: of ongoing criminal investigation. So anyway, we're very early on.

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Speaker 8: It's unclear how it's going to play, but It's a

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Speaker 8: very sticky, complicated situation.

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Speaker 2: We should learn more, but it may not be until August.

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Speaker 2: That's when the NTSB has scheduled an investigative public hearing

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Speaker 2: into the Boeing door plug blowout. Thanks so much, Alan.

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Speaker 2: That's Alan Levin, Bloomberg Aviation Safety Reporter. Coming up next

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Speaker 2: on the Bloomberg Lawn Show. The federal government is trying

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Speaker 2: an unprecedented legal move to protect a world renowned national

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Speaker 2: wildlife refuge in Georgia. I'm June Grosso and you're listening

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Speaker 2: to Bloomberg.

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Speaker 1: There is a softness to the Okefinoke, a welcome that

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Speaker 1: somehow seems to contradict the very notion of swamp. The

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Speaker 1: ok finoch a blackwater swamp, is one of the largest

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Speaker 1: and most significant wetland complexes in the United States.

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Speaker 2: The Oke Finoke National Wildlife Refuge is a pristine six

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Speaker 2: hundred and eighty si square mile wilderness in Georgia, an

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Speaker 2: ecological wonder that's a haven for threatened and endangered species

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Speaker 2: and world renowned for its amphibian populations. It's one of

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Speaker 2: the world's largest intact freshwater ecosystems. Designated a Wetland of

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Speaker 2: International importance by the United Nations in nineteen seventy one.

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Speaker 2: But there's a long running battle over the Okefinoke, and

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Speaker 2: the federal government is making an unprecedented claim to protect it,

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Speaker 2: asserting federal reserved water rights to prevent a mining company

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Speaker 2: from pumping so much groundwater for a proposed titanium dioxide

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Speaker 2: mine that it could cut off part of the swamp's

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Speaker 2: water source, imperiling its biodiversity and original purpose as a

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Speaker 2: refuge from migratory birds. Joining me is water rights expert

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Speaker 2: Ryan Roeberry, a professor at the Georgia State University College

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Speaker 2: of Law. Ryan tell us about this battle over the Okefenoke.

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Speaker 9: Sure. I mean, the facts are quite simple.

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Speaker 5: There is the.

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Speaker 9: Swamp, part of which is a national wildlife refuge, obviously

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Speaker 9: a very large swamp in southern Georgia. About three miles

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Speaker 9: away from that, in the southeast section of the Oke

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Speaker 9: Pinochi Swamp. Mining company will apply for some groundwater pumping

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Speaker 9: permit to mine titanium dioxide, and that process of sort

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Speaker 9: of using the groundwater and pumping the groundwater would affect

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Speaker 9: the water flow going through the Oke Pinochi National Wildlife Refuge.

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Speaker 9: So that is the challenge right now. It's the water

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Speaker 9: quantity issue that may happen because of these permits, and would.

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Speaker 2: That lack of water be a hazard to the species

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Speaker 2: there that have been protected absolutely.

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Speaker 9: If it's Some hydrologists have studied this and they say

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Speaker 9: that they could cause a diminution of water about sixteen

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Speaker 9: percent of the recharge of the aquifer that sort of

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Speaker 9: naturally feeds the oke Pinochi National Wildlife Refuge. If that happens,

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Speaker 9: that has a very big negative impact on some endangered species,

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Speaker 9: the ability of the swamp, and it's the creatures inside

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Speaker 9: and swamp, some of the trees, grasses, some of the animals.

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Speaker 9: It would negatively impact them if there's a sixteen percent

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Speaker 9: diminution And that is what's an issue here is what

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Speaker 9: kind of damage, if any, would be groundwater permits posed

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Speaker 9: to the National Wildlife Refuge. And that's when you get

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Speaker 9: into the hydrology of it.

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Speaker 2: And the Georgia Environmental Protection Division issued a draft permit

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Speaker 2: to the mining company and held a public hearing.

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Speaker 9: So this has been going on for a couple of

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Speaker 9: years now. This has not just come out of the blue,

437
00:27:31,400 --> 00:27:34,119
Speaker 9: and now they are in the midst of the draft

438
00:27:34,160 --> 00:27:36,040
Speaker 9: permit is sort of thing. This is the permit we

439
00:27:36,080 --> 00:27:39,600
Speaker 9: want to give the mining company. They're accepting public comment

440
00:27:39,840 --> 00:27:43,160
Speaker 9: on it, I believe, up until the early part of April,

441
00:27:43,280 --> 00:27:45,480
Speaker 9: at which time they will make a decision on whether

442
00:27:45,600 --> 00:27:48,480
Speaker 9: to grant the permit to the mining company or not.

443
00:27:49,200 --> 00:27:52,159
Speaker 2: I've read some of the comments on the website for

444
00:27:52,320 --> 00:27:57,440
Speaker 2: the Okefinoke, with people talking about its pristine beauty, its

445
00:27:57,640 --> 00:28:01,560
Speaker 2: other worldliness, how unique it is is the public in

446
00:28:01,640 --> 00:28:06,640
Speaker 2: favor of allowing mining that might imperil that most people that.

447
00:28:06,600 --> 00:28:09,560
Speaker 9: I saw, who are far more concerned about the national

448
00:28:09,560 --> 00:28:12,240
Speaker 9: wildlife refuge. We don't have many spots like this in

449
00:28:12,280 --> 00:28:15,199
Speaker 9: the East, particularly the Eastern United States. I'm sure there

450
00:28:15,240 --> 00:28:17,040
Speaker 9: are people on the other side that would say, you know,

451
00:28:17,080 --> 00:28:19,920
Speaker 9: of course the mine would provide jobs, the economy, those

452
00:28:20,000 --> 00:28:22,040
Speaker 9: kinds of things, and so there's always going to be

453
00:28:22,080 --> 00:28:26,400
Speaker 9: a built intention between sort of preservation or economic development.

454
00:28:26,920 --> 00:28:29,639
Speaker 2: So the US Fish and Wildlife Service made a claim

455
00:28:29,680 --> 00:28:34,879
Speaker 2: in January asserting its federal reserved water rights at Okafenoke.

456
00:28:35,280 --> 00:28:36,879
Speaker 2: Is that unusual?

457
00:28:37,440 --> 00:28:40,800
Speaker 9: Absolutely, this is highly unusual. In fact, I think it's

458
00:28:40,840 --> 00:28:43,840
Speaker 9: the first time that federal or reserve water rights have

459
00:28:43,920 --> 00:28:47,240
Speaker 9: been asserted east of the Mississippi River. And the reason

460
00:28:47,280 --> 00:28:50,040
Speaker 9: for that is in the United States, we generally speaking

461
00:28:50,120 --> 00:28:52,680
Speaker 9: have two different water systems, one for the West, one

462
00:28:52,720 --> 00:28:55,640
Speaker 9: for the East. In the West, where it's very arid

463
00:28:55,680 --> 00:28:58,160
Speaker 9: and dry where I grew up in Idaho and Colorado,

464
00:28:58,200 --> 00:29:01,600
Speaker 9: you have prior appropriation first, in time first, and right

465
00:29:02,120 --> 00:29:04,280
Speaker 9: there's sort of the pecking order of who gets the water.

466
00:29:04,480 --> 00:29:08,160
Speaker 9: The federal the government has asserted its better reserve water rights,

467
00:29:08,200 --> 00:29:10,520
Speaker 9: which is simply a claim that when the federal government

468
00:29:10,640 --> 00:29:14,400
Speaker 9: reserves some land, that it also implicitly reserves the water

469
00:29:14,560 --> 00:29:17,800
Speaker 9: necessary for that lands to function as a reservation. That

470
00:29:17,880 --> 00:29:20,000
Speaker 9: has been asserted in the West. In the East we

471
00:29:20,040 --> 00:29:24,960
Speaker 9: have a regulated riparian system. Riparian system is predicated on

472
00:29:25,000 --> 00:29:28,240
Speaker 9: the premise that there's enough water for everybody, you just

473
00:29:28,320 --> 00:29:31,280
Speaker 9: have to share it reasonably. And I think one of

474
00:29:31,360 --> 00:29:34,400
Speaker 9: the challenges is is that with climate change, with increased

475
00:29:34,440 --> 00:29:37,280
Speaker 9: industrial use, we are seeing that there might not be

476
00:29:37,440 --> 00:29:41,320
Speaker 9: enough water for everybody anymore in the riparian states. And

477
00:29:41,400 --> 00:29:44,440
Speaker 9: so in this case, the US Fish and Wildlife Service

478
00:29:44,480 --> 00:29:47,280
Speaker 9: has asserted its cetter reserve water rights, which again in

479
00:29:47,320 --> 00:29:49,640
Speaker 9: a riparian state. I believe this is the first time

480
00:29:49,800 --> 00:29:51,840
Speaker 9: this has happened. So yes, it is a big deal.

481
00:29:52,280 --> 00:29:56,080
Speaker 2: The mining company claims a that the mind won't harm

482
00:29:56,240 --> 00:30:01,080
Speaker 2: the reserve and that federal reserve water rights is exclusive

483
00:30:01,120 --> 00:30:04,080
Speaker 2: to Western water law. Where do you stand on this.

484
00:30:04,520 --> 00:30:07,040
Speaker 9: I don't think it's exclusive to Western water law at all.

485
00:30:07,080 --> 00:30:09,920
Speaker 9: I mean, there is some argument that says, well, it

486
00:30:10,040 --> 00:30:12,880
Speaker 9: has to be land that was reserved in the public domain,

487
00:30:13,000 --> 00:30:15,400
Speaker 9: of which Georgia was not part of that because it's

488
00:30:15,440 --> 00:30:18,160
Speaker 9: part of the original thirteen colonies. But to me, the

489
00:30:18,200 --> 00:30:21,080
Speaker 9: doctrine of federal reserve water rights, it doesn't depend on

490
00:30:21,320 --> 00:30:24,040
Speaker 9: the status of the land that the government reserved. It

491
00:30:24,120 --> 00:30:27,600
Speaker 9: simply depends upon the reason for which the federal government

492
00:30:27,640 --> 00:30:29,960
Speaker 9: reserved the land. In the case of the Oki Sanoki,

493
00:30:30,320 --> 00:30:33,160
Speaker 9: it reserved the land to protect the water, the wildlife,

494
00:30:33,160 --> 00:30:36,240
Speaker 9: the tree, et cetera. And therefore the intent would have

495
00:30:36,280 --> 00:30:40,440
Speaker 9: been to preserve enough water for the congressionally recognized intent

496
00:30:40,640 --> 00:30:43,480
Speaker 9: to take place. So I am not of the opinion

497
00:30:43,600 --> 00:30:46,880
Speaker 9: it's just a Western issue. I think that the facts

498
00:30:46,880 --> 00:30:49,200
Speaker 9: on the ground have changed and that there's not enough

499
00:30:49,240 --> 00:30:52,520
Speaker 9: water in the East for everybody anymore, and this is

500
00:30:52,560 --> 00:30:54,959
Speaker 9: a right that the federal government can assert. There's no

501
00:30:55,040 --> 00:30:56,240
Speaker 9: problems in my opinion.

502
00:30:56,480 --> 00:30:59,400
Speaker 2: So the acting Regional Director of Fish and Wildlife Service

503
00:30:59,760 --> 00:31:03,040
Speaker 2: Might Volker said that federal reserve water rights include all

504
00:31:03,080 --> 00:31:07,320
Speaker 2: the water needed to maintain the purpose of the Okefinocchi Refuge,

505
00:31:07,560 --> 00:31:11,600
Speaker 2: which President Franklin Roosevelt created to protect migratory birds in

506
00:31:11,680 --> 00:31:15,240
Speaker 2: nineteen thirty seven with an executive order under the Migratory

507
00:31:15,280 --> 00:31:18,360
Speaker 2: Bird Conservation Act. Shouldn't that be enough that it's a

508
00:31:18,400 --> 00:31:21,120
Speaker 2: federal reserve and it has to be protected.

509
00:31:21,360 --> 00:31:25,479
Speaker 9: Yeah, I mean the challengerial again is the groundwater pumping permit.

510
00:31:25,920 --> 00:31:29,160
Speaker 9: The permits are not on the federal reserve right, they

511
00:31:29,200 --> 00:31:31,800
Speaker 9: are outside of it by about three miles. And so

512
00:31:31,960 --> 00:31:35,239
Speaker 9: the issue then is what kinds of things can the

513
00:31:35,280 --> 00:31:40,480
Speaker 9: federal government regulate that don't actually take place on federal

514
00:31:40,560 --> 00:31:44,000
Speaker 9: land but could impact federal lands. And so that's I

515
00:31:44,000 --> 00:31:47,240
Speaker 9: think the real nub of the issue here. And the

516
00:31:47,280 --> 00:31:49,959
Speaker 9: simple fact that cedera reserve water rights has not been

517
00:31:50,000 --> 00:31:52,800
Speaker 9: asserted in the East has led some people to believe

518
00:31:52,840 --> 00:31:55,680
Speaker 9: that well, they aren't applicable in a rip Aerian jurisdiction,

519
00:31:55,760 --> 00:31:58,360
Speaker 9: which again I think is wrong. It's just the fact

520
00:31:58,400 --> 00:32:01,200
Speaker 9: that probably we've had enough water the past to handle

521
00:32:01,240 --> 00:32:03,920
Speaker 9: everything and now that seems to be changing.

522
00:32:04,240 --> 00:32:08,840
Speaker 2: So tell us about this unanimous nineteen seventy six Supreme

523
00:32:08,920 --> 00:32:13,720
Speaker 2: Court opinion that the Fish and Wildlife Service is relying on.

524
00:32:14,400 --> 00:32:17,800
Speaker 9: Sure, that's the case of USB. Caffert, and that was

525
00:32:18,200 --> 00:32:21,200
Speaker 9: an assertion of a federal reserve water right for the

526
00:32:21,240 --> 00:32:24,560
Speaker 9: Devil's Hole to protect a small type of fish, So

527
00:32:24,640 --> 00:32:27,320
Speaker 9: that would be in the Western United States. Again, but

528
00:32:27,400 --> 00:32:31,080
Speaker 9: this also expanded the notion of federal reserve water rights

529
00:32:31,160 --> 00:32:34,920
Speaker 9: not just do Native American reservations or national parks, but

530
00:32:35,040 --> 00:32:39,880
Speaker 9: to all federal reservations, that includes national wildlife refuges, et cetera.

531
00:32:40,240 --> 00:32:44,000
Speaker 9: And simply stated, Caffert says, the primary purpose of a

532
00:32:44,040 --> 00:32:48,120
Speaker 9: federal reservation, that primary purpose needs to be served by

533
00:32:48,160 --> 00:32:50,720
Speaker 9: the water that is allotted to it. So it's really

534
00:32:50,760 --> 00:32:54,160
Speaker 9: the protection of the primary purpose for which a reservation

535
00:32:54,360 --> 00:32:57,240
Speaker 9: was made. And in the case of the Okifinoki Swamp,

536
00:32:57,640 --> 00:33:00,720
Speaker 9: clearly water is part of a swamp and part of

537
00:33:00,760 --> 00:33:04,360
Speaker 9: the national wildlife refuge and so fulfilling that primary purpose.

538
00:33:04,400 --> 00:33:07,720
Speaker 9: It's whatever that minimum amount is needed to fulfill the

539
00:33:07,760 --> 00:33:11,480
Speaker 9: primary purpose, and that minimum amount nobody knows. Nobody knows

540
00:33:11,520 --> 00:33:13,920
Speaker 9: what is the minimum amount needed, and so that would

541
00:33:13,960 --> 00:33:17,120
Speaker 9: require hydrologists to sort of get active and get involved,

542
00:33:17,120 --> 00:33:19,080
Speaker 9: and I'm sure there will be disputes over what is

543
00:33:19,120 --> 00:33:20,720
Speaker 9: the minimum amount necessary.

544
00:33:20,840 --> 00:33:25,280
Speaker 2: Do most water rights experts think that federal water rights

545
00:33:25,320 --> 00:33:28,040
Speaker 2: take precedence over state groundwater rights?

546
00:33:28,560 --> 00:33:32,640
Speaker 9: Absolutely? Absolutely, the federal claim would take precedence. That's pretty clear.

547
00:33:33,200 --> 00:33:36,960
Speaker 9: If the federal reserve water rights this, it supersedes state

548
00:33:37,000 --> 00:33:37,480
Speaker 9: water right.

549
00:33:37,760 --> 00:33:39,840
Speaker 2: So what do experts disagree on?

550
00:33:40,600 --> 00:33:43,680
Speaker 9: Well, I think some experts disagree on whether federal reserve

551
00:33:43,760 --> 00:33:47,240
Speaker 9: water rights exist in riparian states like Georgia and regulated

552
00:33:47,320 --> 00:33:50,400
Speaker 9: riparian states. And then the question is is how do

553
00:33:50,520 --> 00:33:54,480
Speaker 9: you make it fit. You're essentially saying we should privilege

554
00:33:54,840 --> 00:33:59,320
Speaker 9: the water usage of the National Wildlife Refuge in the Okefinoke,

555
00:33:59,720 --> 00:34:04,280
Speaker 9: oh for other competing claims from mining companies or municipal

556
00:34:04,280 --> 00:34:07,800
Speaker 9: industrial use. How are you going to fit that in

557
00:34:07,800 --> 00:34:10,640
Speaker 9: through a system that for many years has not really

558
00:34:10,760 --> 00:34:13,320
Speaker 9: looked at who gets it first, who gets the second,

559
00:34:13,600 --> 00:34:16,200
Speaker 9: But it's been based off of are you using the

560
00:34:16,239 --> 00:34:19,400
Speaker 9: water reasonably? And that's a very different question than in

561
00:34:19,440 --> 00:34:22,000
Speaker 9: the West, where you have a pecking order that is

562
00:34:22,200 --> 00:34:24,799
Speaker 9: clearly established on who gets the first amount and how

563
00:34:24,880 --> 00:34:27,279
Speaker 9: much they get who gets the second? We don't have

564
00:34:27,360 --> 00:34:29,879
Speaker 9: those same systems set up in the East, So how

565
00:34:29,920 --> 00:34:32,759
Speaker 9: it fits in to a sort of a reasonable use

566
00:34:32,840 --> 00:34:36,200
Speaker 9: standard system, which is very sort of ambiguous and opaque,

567
00:34:36,400 --> 00:34:37,640
Speaker 9: is still to be determined.

568
00:34:38,160 --> 00:34:43,400
Speaker 2: Wut this end with the Georgia Environmental Protection Division saying no,

569
00:34:43,600 --> 00:34:44,840
Speaker 2: we're not going to give you a permit.

570
00:34:45,360 --> 00:34:48,320
Speaker 9: It's possible, It's possible. I think what's going to happen

571
00:34:48,360 --> 00:34:51,759
Speaker 9: and what should happen is that Georgia EPD and the

572
00:34:51,880 --> 00:34:54,640
Speaker 9: US Fish and Wildlife Service need to sit down and

573
00:34:54,760 --> 00:34:57,680
Speaker 9: talk about this at are reserved water right? And more importantly,

574
00:34:57,719 --> 00:35:01,360
Speaker 9: how much water is necessary for the oke finoke to

575
00:35:01,440 --> 00:35:04,960
Speaker 9: actually fulfill its mandated purpose. I think that should be

576
00:35:05,000 --> 00:35:07,120
Speaker 9: the next step. I don't think it has to be

577
00:35:07,239 --> 00:35:09,400
Speaker 9: yes or no on the permit. I think it should

578
00:35:09,400 --> 00:35:11,760
Speaker 9: be We're going to have to wait until we figure

579
00:35:11,800 --> 00:35:14,440
Speaker 9: out these conversations with the US fishion Wildlife Service.

580
00:35:14,719 --> 00:35:16,919
Speaker 2: This has been going on for quite a while. I'm

581
00:35:16,960 --> 00:35:19,919
Speaker 2: surprised there's been no lawsuit filed yet.

582
00:35:20,120 --> 00:35:22,799
Speaker 9: Well, the question about whether they were going to get

583
00:35:22,800 --> 00:35:25,759
Speaker 9: a permit, how much water would they be pumping out

584
00:35:25,800 --> 00:35:28,399
Speaker 9: of the ground, et cetera. And then once you find

585
00:35:28,400 --> 00:35:31,719
Speaker 9: out all that information, well, does that harm or could

586
00:35:31,760 --> 00:35:35,279
Speaker 9: it harm the Oke Finoke Swamp or not? All of

587
00:35:35,320 --> 00:35:37,879
Speaker 9: those questions. That's what's been going on over the several years.

588
00:35:37,920 --> 00:35:40,040
Speaker 9: There's been a lot of fact finding and a lot

589
00:35:40,040 --> 00:35:43,960
Speaker 9: of documents being put together so that Georgia EPD would

590
00:35:43,960 --> 00:35:46,640
Speaker 9: be able to assess whether or not a permit should

591
00:35:46,640 --> 00:35:48,880
Speaker 9: be granted. So that's what's been going on. And it

592
00:35:49,000 --> 00:35:51,480
Speaker 9: takes years for mining permits to happen, so this is

593
00:35:51,560 --> 00:35:54,640
Speaker 9: not abnormal. This is part of the process of any

594
00:35:54,719 --> 00:35:57,680
Speaker 9: sort of large mining operation, whether in the Western US

595
00:35:57,840 --> 00:36:00,000
Speaker 9: or the East. So it takes a lot of ground wars,

596
00:36:00,320 --> 00:36:02,399
Speaker 9: gets your permits in order so that you can bring

597
00:36:02,440 --> 00:36:03,480
Speaker 9: a mine online.

598
00:36:03,600 --> 00:36:06,000
Speaker 2: And if this isn't settled, could this turn out to

599
00:36:06,040 --> 00:36:07,560
Speaker 2: be a groundbreaking case.

600
00:36:08,040 --> 00:36:10,879
Speaker 9: If the federal government starts asserting set to reserve water

601
00:36:10,960 --> 00:36:13,480
Speaker 9: rights in the East, which I believe they can, those

602
00:36:13,560 --> 00:36:16,040
Speaker 9: rights don't go away just because they have not asserted

603
00:36:16,080 --> 00:36:18,520
Speaker 9: them before. If they do that for the Oke Pinochi,

604
00:36:19,080 --> 00:36:20,840
Speaker 9: well you have to then look at all of the

605
00:36:20,880 --> 00:36:24,440
Speaker 9: other federal reservations in the East and the potential that

606
00:36:24,480 --> 00:36:28,440
Speaker 9: they could assert water rights or let's say, you know, Swampson,

607
00:36:28,520 --> 00:36:33,520
Speaker 9: South Carolina, or places in West Virginia that are federal reservations.

608
00:36:33,600 --> 00:36:36,520
Speaker 9: So this is much broader than the ok Pinocchi. This

609
00:36:36,600 --> 00:36:39,400
Speaker 9: is the federal government I think saying, you know, we

610
00:36:39,440 --> 00:36:42,160
Speaker 9: do have water rights. That is a tool in our toolbox,

611
00:36:42,280 --> 00:36:45,279
Speaker 9: and if we decide to use them anywhere that there

612
00:36:45,320 --> 00:36:49,359
Speaker 9: is a federal reservation whose primary purpose involves water, that

613
00:36:49,440 --> 00:36:51,560
Speaker 9: gives a hook for the federal government to have a

614
00:36:51,600 --> 00:36:54,560
Speaker 9: seat at the table. Essentially, if the federal government is

615
00:36:54,560 --> 00:36:57,360
Speaker 9: taking a stronger stance saying if you are going to

616
00:36:57,400 --> 00:36:59,840
Speaker 9: issue groundwater permit and we have a problem with that,

617
00:37:00,200 --> 00:37:02,840
Speaker 9: this legal doctrine is PEO will compel parties to have

618
00:37:02,920 --> 00:37:03,560
Speaker 9: to talk to them.

619
00:37:04,040 --> 00:37:07,080
Speaker 2: I find this such a fascinating topic. Thanks so much. Ryan.

620
00:37:07,400 --> 00:37:11,400
Speaker 2: That's Professor Ryan Roberry of the Georgia State University College

621
00:37:11,440 --> 00:37:13,440
Speaker 2: of Law. And that's it for this edition of the

622
00:37:13,480 --> 00:37:16,800
Speaker 2: Bloomberg Law Podcast. Remember you can always get the latest

623
00:37:16,840 --> 00:37:19,719
Speaker 2: legal news by subscribing and listening to the show on

624
00:37:19,800 --> 00:37:24,160
Speaker 2: Apple Podcasts, Spotify, and at Bloomberg dot com Slash podcast

625
00:37:24,200 --> 00:37:28,120
Speaker 2: Slash Law. I'm June Grosso and this is Bloomberg