WEBVTT - West Virginia v EPA and What It Means for Climate Policy

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<v Speaker 1>Hey, drilled listeners and damages listeners. This is a special

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<v Speaker 1>episode that's dropping in both feeds because there's some big,

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<v Speaker 1>important legal news happening in the climate world this week.

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<v Speaker 1>On Monday morning, this week, the Supreme Court heard oral

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<v Speaker 1>arguments in the West Virginia versus EPA case. This is

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<v Speaker 1>a very weird situation. The case started as an argument

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<v Speaker 1>about the Clean Power Plan. That's an Obama administration policy

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<v Speaker 1>that was in fact never implemented. Why is this case

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<v Speaker 1>moving forward? Good question. Supreme Court could still decide not

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<v Speaker 1>to rule in the case. That's an argument that was

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<v Speaker 1>made by the EPA that this case really shouldn't be

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<v Speaker 1>in the courts anymore. But they spend an awful lot

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<v Speaker 1>of time asking questions, so that seems unlikely. The good

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<v Speaker 1>news is they don't seem inclined to chuck out previous

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<v Speaker 1>rulings like aep versus Connecticut and Massachusetts versus EPA, which

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<v Speaker 1>had to do with whether or not the EPA was

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<v Speaker 1>allowed to regulate greenhouse gases. That's good. That was a

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<v Speaker 1>big fear going into this. The bad news this obscure

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<v Speaker 1>law that used to almost never come up in the

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<v Speaker 1>Supreme Court, but suddenly has been a lot in the

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<v Speaker 1>last couple of years, came up a bunch, especially in

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<v Speaker 1>the conservative justices, questioning that law is called the Major

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<v Speaker 1>Questions doctrine. Sounds really boring, possibly pretty scary. We're going

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<v Speaker 1>to get into that and what happened in this case

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<v Speaker 1>and what could happen, what it all means with a

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<v Speaker 1>couple of experts Jason Rylander from the Center for Biological

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<v Speaker 1>Diversity and Richard Revez, a professor at New York and

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<v Speaker 1>Richard Revez, professor at NYU Law. And of course I

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<v Speaker 1>got up early to stream the oral arguments and tape them,

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<v Speaker 1>so we'll give you a little taste of what folks

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<v Speaker 1>were saying in court too. That's all coming yep, after

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<v Speaker 1>this quick break. I'm Ami Westervelt and this is drilled

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<v Speaker 1>and or damages, depending on where you're listening.

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<v Speaker 2>Hi, I'm Richard Rivez. I'm a professor of Environmental law

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<v Speaker 2>at New York University School of Law, where I direct

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<v Speaker 2>the Instant for Policy Integrity, which is a think tank

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<v Speaker 2>and advocacy organization working on clean energy and climate change

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<v Speaker 2>and environmental issues.

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<v Speaker 3>I'm Jason Rylander. I'm an attorney with the Center for

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<v Speaker 3>biological diversity in their Climate law institute.

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<v Speaker 1>Great, And why, Jason, are we going to hear arguments

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<v Speaker 1>about the Clean Power Plan a policy that was never implemented.

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<v Speaker 3>That's a very good question, and I think the first

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<v Speaker 3>issue that the Court is going to have to take

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<v Speaker 3>up is whether they should be hearing this case at all.

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<v Speaker 3>As you noted, the Clean Power Plan has never been

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<v Speaker 3>in effect. It was developed under the Obama administration, it

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<v Speaker 3>was repealed by the Trump administration, and has never ever

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<v Speaker 3>become law. So the Court is basically hearing an argument

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<v Speaker 3>about pollution regulations that don't exist.

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<v Speaker 2>Well before the oral argument, I had the very strong

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<v Speaker 2>sense that the right thing for the Court to do

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<v Speaker 2>was not to decide this case and to dismiss it.

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<v Speaker 2>Supreme Court as a mechanism for dismissing cases is improvidently granted,

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<v Speaker 2>and it's not something it does frequently, but on average

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<v Speaker 2>it's been doing it about twice a year, and this

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<v Speaker 2>case seems like an excellent can to day for that

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<v Speaker 2>disposition because there is no regulation in place, the clean

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<v Speaker 2>power plant is not in place, and the Affordable Clean

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<v Speaker 2>Energy Rule is not in place. A clean power plant,

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<v Speaker 2>of course, was the Obama administration regulation of the greenhouse

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<v Speaker 2>gas emissions of existing power plants and the Affordable Clean

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<v Speaker 2>Energy Rule was a Trump administration's toothless and potentially counterproductive replacement.

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<v Speaker 2>But neither are in place, and neither would go back

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<v Speaker 2>into effect no matter what the CORE does. So essentially,

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<v Speaker 2>no matter what the Corp does, there's not going to

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<v Speaker 2>be a clean power plant in place, and there's not

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<v Speaker 2>going to be an affordable Clean Energy rule in place.

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<v Speaker 2>So all the Court could do is give EPA advice.

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<v Speaker 2>This is known in this lingo as an advisory opinion

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<v Speaker 2>on what its future rule might look like. But the

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<v Speaker 2>federal courts don't have the authority to issue advisory opinions.

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<v Speaker 2>That's been clear since essentially the beginning of Republic. So

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<v Speaker 2>going into the case, I was, you know, the strong

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<v Speaker 2>sense that this was the right thing for the Court

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<v Speaker 2>to do. Coming out of the case, I still think

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<v Speaker 2>that that is the right thing for the Court to do,

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<v Speaker 2>for exactly the same reason that I thought about that before.

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<v Speaker 2>But I you know, have to say that while these

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<v Speaker 2>issues were discussed, it's not clear to me that five

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<v Speaker 2>justices would find that approach compelling.

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<v Speaker 1>Can I have you define for people the major Questions

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<v Speaker 1>doctrine because that came up a bit, and I think

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<v Speaker 1>the general public might not know what that means.

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<v Speaker 2>Yeah, the general public would be well served to know

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<v Speaker 2>what that means. So the Major Question doctrine is a

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<v Speaker 2>doctrine that was used in the past extremely rarely. I

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<v Speaker 2>mean the Supreme Court maybe invoked in once every five years,

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<v Speaker 2>only five times before this past year in its whole

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<v Speaker 2>history starting around nineteen eight in cases that were actually

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<v Speaker 2>quite exceptional. But in the last couple of years, it's

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<v Speaker 2>a doctrine that's been invoked promiscuously by opponents of regulation.

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<v Speaker 3>And the Major Questions doctrine is this offshoot of the

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<v Speaker 3>non delegation doctrine, and basically what it says is that

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<v Speaker 3>Congress has to speak clearly in delegating authority to an

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<v Speaker 3>agency for that agency to be able to take action.

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<v Speaker 3>An agency can't do something without congressional authorization.

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<v Speaker 2>If an agency decision is going to have vast economic

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<v Speaker 2>or political significance, it needs to be authorized explicitly by Congress,

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<v Speaker 2>and that the agents shouldn't be doing an under kind

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<v Speaker 2>of delegated authority in a somewhat open ended statute. But

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<v Speaker 2>now I mean this term the Court has already invoked

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<v Speaker 2>it in striking down the OSHA vaccine and testing mandate,

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<v Speaker 2>striking down the eviction moratorium, and it obviously played a

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<v Speaker 2>big role in the argument yesterday. So it's become you know,

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<v Speaker 2>it's gone from something quite extraordinary that happens where the

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<v Speaker 2>Court really only deals with it every several years, every

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<v Speaker 2>five years, so something that maybe ends up as a

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<v Speaker 2>central issue in the Supreme Court multiple times a year.

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<v Speaker 2>And this whole transformation has happened very quickly, i'd say,

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<v Speaker 2>in the last couple of years.

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<v Speaker 3>And most of the briefing in this case is focusing

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<v Speaker 3>on just this issue, the sort of major questions doctrine

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<v Speaker 3>and whether the EPA can apply its regulations, you know,

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<v Speaker 3>broadly to address, you know, not just emissions that are

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<v Speaker 3>coming directly from power plants themselves, but whether they can

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<v Speaker 3>create a broader system of emissions reductions that would be

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<v Speaker 3>more effective. And the interesting thing about it is that

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<v Speaker 3>the states and most of the power companies are not

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<v Speaker 3>impacted by this regulation at all. I mean, I think,

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<v Speaker 3>to put it simply, there's clearly an anti regulatory appetite

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<v Speaker 3>amongst certain justice of this Court, and we've seen that

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<v Speaker 3>in a number of different cases dealing with the extent

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<v Speaker 3>of agency authority. And this idea that they can use

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<v Speaker 3>this Major Questions doctrine to kind of look at a

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<v Speaker 3>regulation and decide in the abstract whether Congress granted authority

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<v Speaker 3>to address that issue without even really looking at an

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<v Speaker 3>actual rule is bizarre. It is an expansion of judicial

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<v Speaker 3>power in a way that is really pretty inappropriate. And

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<v Speaker 3>we've seen commentators kind of across the political spectrum warning

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<v Speaker 3>against this expanded use of the Major Questions doctrine to

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<v Speaker 3>attack agency rulemaking, but that seems to be where a

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<v Speaker 3>few of the justices want to go.

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<v Speaker 1>I've heard it described as sort of a new tool

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<v Speaker 1>that conservatives are, well, I know, it's not a new doctrine,

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<v Speaker 1>but it's newly popular.

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<v Speaker 2>Yeah, the very expensive use of it for what you know,

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<v Speaker 2>would have been thought of as like run of the

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<v Speaker 2>mill regulations. EPA has been regular lating emissions of power

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<v Speaker 2>plans literally since the early days of the Cleaner Act

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<v Speaker 2>in nineteen seventy, and now this becomes kind of a

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<v Speaker 2>big thing, and it's a product exclusively of a significant

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<v Speaker 2>change in the composition of the court.

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<v Speaker 1>Okay, I'm going to play a little bit from the

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<v Speaker 1>oral arguments you'll hear, just as Sodoma r here questioning

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<v Speaker 1>one of the attorneys for West Virginia, Lindsay C.

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<v Speaker 4>Massachusetts versus EPA, said that carbon dioxide is a pollutant

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<v Speaker 4>under the Clean Air Act. So that's clear, right.

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<v Speaker 5>We're not challenging that.

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<v Speaker 4>Correct, all right, You're not challenging aep Connecticut, where we

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<v Speaker 4>said that Congress is clearly delegated to the EPA the

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<v Speaker 4>discretion about whether and how to break the late carbon dioxide. Correct.

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<v Speaker 5>We are not disputing the portion that said Congress spoke

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<v Speaker 5>to whether and how. We are disputing that how means

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<v Speaker 5>that EPA can do that.

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<v Speaker 4>I understand what you're saying, but this is really a

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<v Speaker 4>step further than anything we have said before. All of

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<v Speaker 4>our other cases, whether it's regulation of tobacco or regulation

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<v Speaker 4>of evictions under major Questions doctrine, have not addressed the how.

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<v Speaker 4>Now we're going to the how.

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<v Speaker 2>Know.

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<v Speaker 3>I think the worst case scenario here is that they

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<v Speaker 3>have an EPA's authority in a way that is going

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<v Speaker 3>to make it more difficult for the Biden administration and

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<v Speaker 3>future administrations to regulate effectively under Section one eleven of

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<v Speaker 3>the Clean Air Act. The good news is Clean Air

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<v Speaker 3>Act is broader than that, and there are a lot

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<v Speaker 3>of other ways that we can get at greenhouse gas pollutions.

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<v Speaker 3>And we also know that you know, greenhouse gas pollutions

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<v Speaker 3>emerge from things other than stationary coal and power plants.

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<v Speaker 2>Well, I think this decision is probably going to mostly,

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<v Speaker 2>if at all, affect EPA's authority to regulate the greenhouse

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<v Speaker 2>gas emissions of the power sector because regular greenhouse gas

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<v Speaker 2>emissions of the power sector has some peculiarities that don't

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<v Speaker 2>arise in their contexts. So you know, at old times,

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<v Speaker 2>the supply of electricity and demand for electricity have to

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<v Speaker 2>be balanced. You know, if they're not balanced, then you know,

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<v Speaker 2>bad things are going to happen to the grid, like

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<v Speaker 2>you know, blackouts or you know, the we will get

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<v Speaker 2>damaged and so so. And that's not true for other products.

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<v Speaker 2>So for example, you know, if some factory produced some

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<v Speaker 2>manufactured good and the good doesn't sell in the market

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<v Speaker 2>right away, you know, the factory can like send it

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<v Speaker 2>to its warehouse and it can sit in the warehouse

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<v Speaker 2>for six months. You can't do that with electricity, and

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<v Speaker 2>so then creates special rectory challenges that you know, come

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<v Speaker 2>from the functioning of the grid, and they don't arise

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<v Speaker 2>in other contexts. Now you know again, you know, the

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<v Speaker 2>Court could write a very broad opinion that could have

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<v Speaker 2>all kinds of other repercussions. But I think it will

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<v Speaker 2>be hard for the Court to avoid writing an opinion

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<v Speaker 2>that focuses significant attention on the structure of the grid.

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<v Speaker 2>And if it does that, probably the main impact will

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<v Speaker 2>be on the greenhouse gas regulation of the power sector.

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<v Speaker 2>But having said that, you know, each of these opinions

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<v Speaker 2>reveals a mood about the Court, And if the Court

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<v Speaker 2>isn't any kind of expansive Major Questions mood, which it

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<v Speaker 2>might be, then you've expected next year there'll be five

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<v Speaker 2>other Major Questions cases in which, in other contexts, it

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<v Speaker 2>will do other things to constrain the ability of federal

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<v Speaker 2>regultary agencies to address pressing health, environmental, climate change, consumer

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<v Speaker 2>I've heard.

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<v Speaker 1>The sort of recent embrace of the Major Questions doctrine

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<v Speaker 1>referred to as as part of an overall strategy to

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<v Speaker 1>get to a blockner era, And I I wonder if

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<v Speaker 1>you think that's accurate or you know, being dramatic and

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<v Speaker 1>be if you could summarize for people. What that means, I.

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<v Speaker 2>Would say that the core could be characterized as being

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<v Speaker 2>interest in returning us to a prem deal era, you know,

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<v Speaker 2>because basically regultary agencies, I mean they pre existed the

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<v Speaker 2>New Deal for sure, and they go back to the

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<v Speaker 2>nineteenth century. But the big explosion of regtree agencies, the

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<v Speaker 2>Federal Trade Commission, the Securities and Exchange Commission, the Federal

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<v Speaker 2>Communications Commission, those agencies were established during the New Deal,

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<v Speaker 2>I mean in response to the Great Depression in part,

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<v Speaker 2>and that's when kind of the big significant pieces of

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<v Speaker 2>the business of government started being done by agencies in

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<v Speaker 2>the executive branch. And I think that the efforts now

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<v Speaker 2>might make it difficult for agencies to do that because

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<v Speaker 2>typically Congress delegated to agencies fairly significant discretion, and the

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<v Speaker 2>agencies then acted under that discretions. For example, some on

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<v Speaker 2>the statutes and deal statutes that regulate in the public interest,

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<v Speaker 2>and the agency determined what the public interest was and

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<v Speaker 2>thereby took care of its obligation under the statute. But now,

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<v Speaker 2>you know, open ended delegations of that sort tend to

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<v Speaker 2>be run through major questions lens. And then the court

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<v Speaker 2>has been the courts that have done this have been

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<v Speaker 2>very quick to find economic and political significance. And often

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<v Speaker 2>the political significance just happens to be that there are

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<v Speaker 2>you know, a number of states on each side of litigation,

0:14:54.240 --> 0:14:56.760
<v Speaker 2>or there's controversy around the issue. But these days, with

0:14:56.840 --> 0:15:02.680
<v Speaker 2>the country this divided, there's political over practically anything an

0:15:02.680 --> 0:15:07.320
<v Speaker 2>agency does. So we've come up with a test that

0:15:08.120 --> 0:15:10.160
<v Speaker 2>is in the eye of the beholder, and a beholder

0:15:10.200 --> 0:15:13.560
<v Speaker 2>who's unsympathetic to the regultary enterprise is going to be

0:15:13.640 --> 0:15:18.040
<v Speaker 2>able to say that the regulation fits within the kind

0:15:18.040 --> 0:15:20.840
<v Speaker 2>of major questions rubric. So I would put it as

0:15:21.040 --> 0:15:23.800
<v Speaker 2>a return to before the New Deal. I mean the

0:15:23.880 --> 0:15:27.280
<v Speaker 2>Lockner areas actually goes back further. It was a significant

0:15:27.280 --> 0:15:29.840
<v Speaker 2>decision Supreme Court back right at the beginning of the

0:15:29.880 --> 0:15:33.640
<v Speaker 2>twentieth century, where day's back to nineteen oh five, where

0:15:33.680 --> 0:15:39.440
<v Speaker 2>the court was very intrusive and validating federal and state statutes,

0:15:40.160 --> 0:15:43.560
<v Speaker 2>mostly ones that regulated working conditions, and kind of the

0:15:43.680 --> 0:15:46.120
<v Speaker 2>New Deal era brought an end to that. I mean,

0:15:46.120 --> 0:15:48.400
<v Speaker 2>this is a little different because it's being struck down

0:15:48.440 --> 0:15:52.160
<v Speaker 2>right now are not the statutes but regulations promulgated under

0:15:52.200 --> 0:15:56.320
<v Speaker 2>the statutes. Although the parallel effort, which is probably not

0:15:56.400 --> 0:15:58.960
<v Speaker 2>an issue in this case, but you know it's kind

0:15:58.960 --> 0:16:02.080
<v Speaker 2>of related, is that the Court there are justices were

0:16:02.160 --> 0:16:08.240
<v Speaker 2>appeared to be interested in reviving the non delegation doctrine,

0:16:08.400 --> 0:16:10.440
<v Speaker 2>which would lead to striking down statutes.

0:16:11.280 --> 0:16:15.280
<v Speaker 1>Can you explain a little bit about the non delegation doctrine?

0:16:15.440 --> 0:16:22.160
<v Speaker 2>Well, the non delegation doctrine prohibits delegations to agencies that

0:16:22.440 --> 0:16:26.280
<v Speaker 2>are so broad that the agency doesn't have an intelligible

0:16:26.320 --> 0:16:29.800
<v Speaker 2>principle to guide the exercise of its discretion. But the

0:16:29.840 --> 0:16:33.480
<v Speaker 2>courts so far have been quite receptive to finding limiting

0:16:33.480 --> 0:16:37.560
<v Speaker 2>principles and have struck very few things. But there are

0:16:37.680 --> 0:16:41.280
<v Speaker 2>justices who I think want to revive a more robust

0:16:41.400 --> 0:16:44.840
<v Speaker 2>use of the non delegation doctrine and who might therefore

0:16:44.880 --> 0:16:49.320
<v Speaker 2>either recast it in ways in which requires congressional decision

0:16:49.680 --> 0:16:52.680
<v Speaker 2>on a much broader set of issues, and has been

0:16:52.720 --> 0:16:55.440
<v Speaker 2>Cruisin's new deal. We haven't seen that basically. The Supreme

0:16:55.440 --> 0:16:58.240
<v Speaker 2>Court has struck down to cases and non delegation doctrine

0:16:58.320 --> 0:17:01.200
<v Speaker 2>its history, both in nineteen thirty six, never before, and

0:17:01.200 --> 0:17:07.040
<v Speaker 2>never after. But there is significant concern that a parallel

0:17:07.200 --> 0:17:11.720
<v Speaker 2>effort alongside this kind of robust use of the major

0:17:11.800 --> 0:17:14.480
<v Speaker 2>questions doctrine will be a very aggressive use of the

0:17:14.520 --> 0:17:17.119
<v Speaker 2>non delegation doctrine. I don't think this case provides a

0:17:17.119 --> 0:17:20.280
<v Speaker 2>good vehicle for that, and it wasn't significantly brief or argued,

0:17:20.320 --> 0:17:22.680
<v Speaker 2>So I think this case is more likely to end

0:17:22.760 --> 0:17:26.160
<v Speaker 2>up exploring the major questions doctrine. But you can certainly

0:17:26.200 --> 0:17:29.560
<v Speaker 2>imagine a subsequent case in which just as were opposed

0:17:29.560 --> 0:17:34.200
<v Speaker 2>to regulation deciding that a revival of the non delegation doctrine.

0:17:34.320 --> 0:17:38.280
<v Speaker 1>I'm going to play another clip here on this major

0:17:38.440 --> 0:17:44.320
<v Speaker 1>questions and non delegation issue. You'll hear Justice Amy Conny

0:17:44.359 --> 0:17:47.840
<v Speaker 1>Barrett here questioning Lindsay C again what is.

0:17:47.840 --> 0:17:50.840
<v Speaker 6>The daylight between the major questions doctrine and the non

0:17:50.880 --> 0:17:54.320
<v Speaker 6>delegation doctrine. So at the beginning of your argument, you

0:17:54.400 --> 0:17:57.439
<v Speaker 6>talked about how the major questions doctrine can be understood,

0:17:57.640 --> 0:18:01.320
<v Speaker 6>as you know, inspired by the separation of powers, and

0:18:01.359 --> 0:18:04.080
<v Speaker 6>you talked about avoidance and non delegation.

0:18:04.480 --> 0:18:04.880
<v Speaker 4>So if the.

0:18:04.840 --> 0:18:12.040
<v Speaker 6>Idea is that Congress shouldn't delegate major questions to an agency,

0:18:12.680 --> 0:18:14.160
<v Speaker 6>is there any daylight between them?

0:18:14.720 --> 0:18:16.399
<v Speaker 5>I think certainly that is a broad view of the

0:18:16.440 --> 0:18:19.439
<v Speaker 5>non delegation doctrine. It's not necessary for the court to

0:18:19.480 --> 0:18:22.680
<v Speaker 5>go that far to say whether Congress could delegate these questions,

0:18:22.720 --> 0:18:25.080
<v Speaker 5>because here it's clear Congress didn't. So I think the

0:18:25.160 --> 0:18:27.560
<v Speaker 5>daylight between the two is really this question of has

0:18:27.640 --> 0:18:31.240
<v Speaker 5>Congress purported to delegate the major questions clear statement? Can?

0:18:31.280 --> 0:18:33.520
<v Speaker 5>It is getting at that question, what did Congress think

0:18:33.520 --> 0:18:35.600
<v Speaker 5>it was doing? What did Congress actually do with the

0:18:35.600 --> 0:18:37.600
<v Speaker 5>words it put in the statute? And then it would

0:18:37.600 --> 0:18:40.920
<v Speaker 5>be a separate question to say if Congress clearly said, EPA,

0:18:41.080 --> 0:18:44.119
<v Speaker 5>you may go forward and exercise this transformative power, that

0:18:44.240 --> 0:18:46.040
<v Speaker 5>might be a separate non delegation question.

0:18:52.840 --> 0:18:56.040
<v Speaker 1>Okay, that's it for this time. Thanks for listening. I

0:18:56.119 --> 0:18:58.240
<v Speaker 1>mentioned last time that we're not going to be doing

0:18:58.280 --> 0:19:02.480
<v Speaker 1>these newsy update episodes in the main feed anymore. We're

0:19:02.520 --> 0:19:06.000
<v Speaker 1>going back to narrative seasons for Drilled. The next one

0:19:06.240 --> 0:19:10.040
<v Speaker 1>will be out in just a few weeks. If you

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0:20:16.160 --> 0:20:18.840
<v Speaker 1>guys are awesome. I think a lot of you pledged

0:20:18.920 --> 0:20:23.000
<v Speaker 1>after I was complaining about yet another mainstream media outlet

0:20:23.520 --> 0:20:28.080
<v Speaker 1>stealing a bunch of reporting from Drilled. It actually happens

0:20:28.160 --> 0:20:33.640
<v Speaker 1>a lot, and it's pretty annoying, and I really wish

0:20:33.680 --> 0:20:36.719
<v Speaker 1>that big mainstream outlets would just higher climate reporters if

0:20:36.720 --> 0:20:39.600
<v Speaker 1>they want good climate reporting so bad. But in the meantime,

0:20:39.680 --> 0:20:42.840
<v Speaker 1>I appreciate folks supporting what we're doing here, and we

0:20:42.880 --> 0:20:46.280
<v Speaker 1>will put that money to use pumping out more seasons

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<v Speaker 1>we've got at least two and hopefully three more narrative

0:20:49.960 --> 0:20:54.119
<v Speaker 1>seasons planned for Drilled this year, and weekly episodes for

0:20:54.240 --> 0:20:57.920
<v Speaker 1>Damages from now till the end of the year. Thanks

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<v Speaker 1>again for the support and we'll see you next time

0:21:00.520 --> 0:21:08.679
<v Speaker 1>at the bar back the barrel backt deep barrel basket