1 00:00:00,360 --> 00:00:04,080 Speaker 1: From tents to smoke machines. Judges across the country are 2 00:00:04,080 --> 00:00:09,039 Speaker 1: getting creative and using unconventional methods to restart jury trials 3 00:00:09,080 --> 00:00:13,080 Speaker 1: as the pandemic has caseloads piling up. Some judges, like 4 00:00:13,160 --> 00:00:16,720 Speaker 1: the District of Maryland's Chief Judge James Burdar, try to 5 00:00:16,760 --> 00:00:19,680 Speaker 1: prepare jurors for the stark difference of a trial in 6 00:00:19,720 --> 00:00:23,480 Speaker 1: the time of COVID with a video. The courtrooms themselves 7 00:00:23,520 --> 00:00:26,960 Speaker 1: have been modified so that jurors are no longer clustered together, 8 00:00:27,440 --> 00:00:31,480 Speaker 1: but instead sit far apart from each other. Flexiglass screens 9 00:00:31,520 --> 00:00:34,839 Speaker 1: have been erected in the courtrooms, separating those who are 10 00:00:34,880 --> 00:00:38,919 Speaker 1: speaking from those who are listening. Jurors no longer assemble 11 00:00:39,000 --> 00:00:42,880 Speaker 1: in cramped spaces, joining me is Madison Alder Bloomberg Law 12 00:00:42,920 --> 00:00:47,000 Speaker 1: reporter Madison. Thirty of the ninety four federal district courts 13 00:00:47,000 --> 00:00:50,839 Speaker 1: have issued orders allowing jury trials to resume. How did 14 00:00:50,960 --> 00:00:55,360 Speaker 1: judges decide when to restart in person jury trials? It 15 00:00:55,480 --> 00:00:58,600 Speaker 1: really depends on local factors whether or not a court 16 00:00:58,640 --> 00:01:02,000 Speaker 1: decides to do that. Typically it's whether or not just 17 00:01:02,040 --> 00:01:05,840 Speaker 1: new cases of coronavirus have been going down for about 18 00:01:06,040 --> 00:01:08,399 Speaker 1: two weeks or so it is a measurement a lot 19 00:01:08,400 --> 00:01:11,000 Speaker 1: of courts are using that was part of the recommendations 20 00:01:11,120 --> 00:01:15,120 Speaker 1: from the Administrative Office of the Court. And if they're 21 00:01:15,120 --> 00:01:18,240 Speaker 1: in a situation where that's happening and they feel comfortable 22 00:01:18,280 --> 00:01:21,520 Speaker 1: going forward with jury trials, they're summoning jurors and the 23 00:01:21,720 --> 00:01:23,960 Speaker 1: jury trials look a lot different than they did. You know, 24 00:01:24,000 --> 00:01:28,600 Speaker 1: we're seeing courts publishing videos now where the judge or 25 00:01:28,640 --> 00:01:31,640 Speaker 1: the chief judge will kind of walk jurors through the 26 00:01:31,680 --> 00:01:37,520 Speaker 1: new process. Everyone's wearing masks, there's plexiglass dividers between different 27 00:01:37,560 --> 00:01:40,800 Speaker 1: parts of the courtroom. The jury is now in more 28 00:01:40,800 --> 00:01:43,679 Speaker 1: of a box than it was before. The witness stand 29 00:01:43,800 --> 00:01:46,880 Speaker 1: might have some plexy glass around it. In the Western 30 00:01:46,920 --> 00:01:49,760 Speaker 1: District of Washington, I suppose the chief judge they're they're 31 00:01:49,760 --> 00:01:53,320 Speaker 1: not doing jury trials now, but whenever they open back up, 32 00:01:53,600 --> 00:01:55,960 Speaker 1: the chief judge says he's going to use a smoke 33 00:01:56,080 --> 00:01:58,240 Speaker 1: machine to see what the air flow looks like in 34 00:01:58,280 --> 00:02:00,800 Speaker 1: the room, to make sure that there aren't any you know, 35 00:02:00,840 --> 00:02:04,000 Speaker 1: pockets in the room that don't have a good airflow, 36 00:02:04,160 --> 00:02:07,560 Speaker 1: to make sure that the airborne virus is out of 37 00:02:07,560 --> 00:02:10,200 Speaker 1: the air, and a wave from people in the courtroom 38 00:02:10,280 --> 00:02:14,040 Speaker 1: with plexiglass around a witness, it's hard to hand them 39 00:02:14,040 --> 00:02:16,760 Speaker 1: a document. But then again, they're not allowed to get 40 00:02:16,800 --> 00:02:19,799 Speaker 1: close enough to hand them a document even right. I mean, 41 00:02:19,919 --> 00:02:22,320 Speaker 1: some of these in person trials could come with their 42 00:02:22,320 --> 00:02:25,480 Speaker 1: own difficulties. There's no perfect way to do a jury 43 00:02:25,560 --> 00:02:28,680 Speaker 1: trial during the coronavirus. They're all going to look a 44 00:02:28,680 --> 00:02:31,840 Speaker 1: little bit different, whether that's on zoom or whether that's 45 00:02:31,880 --> 00:02:36,440 Speaker 1: in person with max and plexiglass. Some judges are really 46 00:02:36,480 --> 00:02:39,680 Speaker 1: getting creative. Tell us about the Federal Court in Dallas 47 00:02:39,720 --> 00:02:44,399 Speaker 1: that's considering holding an outdoor trial under a tent. Their 48 00:02:44,480 --> 00:02:47,080 Speaker 1: chambers are not built for a pandemic, so this is 49 00:02:47,160 --> 00:02:49,160 Speaker 1: something that's on the table. It would be at a 50 00:02:49,240 --> 00:02:53,679 Speaker 1: local law school, and jurors would potentially be outside under 51 00:02:53,760 --> 00:02:56,960 Speaker 1: tents with something like this, things like pollen could become 52 00:02:57,000 --> 00:02:59,880 Speaker 1: a concern. But judges are just trying to get cree 53 00:03:00,000 --> 00:03:02,959 Speaker 1: of right now to get these durty trials off the ground, 54 00:03:03,480 --> 00:03:07,280 Speaker 1: and Maddie, are there instances where judges are following that 55 00:03:07,440 --> 00:03:11,480 Speaker 1: two week guidance, but things fall apart anyway. So there 56 00:03:11,520 --> 00:03:14,560 Speaker 1: have been a few courts across the country that have 57 00:03:15,120 --> 00:03:19,280 Speaker 1: gotten ready to restart jury trials. Numbers were going down, 58 00:03:19,600 --> 00:03:23,480 Speaker 1: and then number spiked again and they couldn't go forward 59 00:03:23,520 --> 00:03:26,600 Speaker 1: with those trials anymore. You know. One example was the 60 00:03:27,000 --> 00:03:30,760 Speaker 1: Central District of California. They were preparing to go forward 61 00:03:30,800 --> 00:03:34,160 Speaker 1: with jury trials a few months back, and in June 62 00:03:34,760 --> 00:03:38,440 Speaker 1: the number spiked and they had to over the weekend 63 00:03:38,480 --> 00:03:42,320 Speaker 1: basically decide we can't go through with this anymore. I mean, 64 00:03:42,320 --> 00:03:44,880 Speaker 1: that's just one example there. There have been courts across 65 00:03:44,960 --> 00:03:48,520 Speaker 1: the countries, if some of them even restarted jury trials, 66 00:03:48,560 --> 00:03:52,360 Speaker 1: and when coronavirus cases in the area spikes, they had 67 00:03:52,400 --> 00:03:55,920 Speaker 1: to go back to this postponement. So this is really 68 00:03:56,040 --> 00:03:58,160 Speaker 1: part of that dance in and dance out that we're 69 00:03:58,160 --> 00:04:00,880 Speaker 1: seeing with the coronavirus and in so many ways, with 70 00:04:01,000 --> 00:04:05,600 Speaker 1: so many different industries, sometimes you're opening up and then 71 00:04:05,680 --> 00:04:07,520 Speaker 1: when when number of spikes, you kind of have to 72 00:04:07,520 --> 00:04:12,120 Speaker 1: go back to those initial protocols and safety measures. Turning 73 00:04:12,120 --> 00:04:15,680 Speaker 1: to virtual trials for a moment, it's Texas the only 74 00:04:15,760 --> 00:04:19,320 Speaker 1: state that's had a full virtual trial in a criminal 75 00:04:19,400 --> 00:04:23,120 Speaker 1: case so far. A state court in Texas had a 76 00:04:23,200 --> 00:04:27,440 Speaker 1: full virtual criminal trial, though there have been a couple 77 00:04:27,480 --> 00:04:30,080 Speaker 1: of different civil trials one of them was in Texas, 78 00:04:30,120 --> 00:04:33,760 Speaker 1: another one was in Florida on Zoom or another video 79 00:04:33,839 --> 00:04:39,120 Speaker 1: conferencing platform. What kind of problems did they encounter. They 80 00:04:39,120 --> 00:04:42,560 Speaker 1: were really trying to use a test pace that would 81 00:04:42,839 --> 00:04:46,360 Speaker 1: resolve itself quickly, so it lasted a few hours from 82 00:04:46,400 --> 00:04:49,360 Speaker 1: start to finish. And some of the problems we're saying 83 00:04:49,400 --> 00:04:52,120 Speaker 1: that they said that they predicted it was technical glitches. 84 00:04:52,279 --> 00:04:56,120 Speaker 1: One of the jurors who was selected, their connection dropped 85 00:04:56,320 --> 00:04:59,080 Speaker 1: right before the trial was able to start, so they 86 00:04:59,080 --> 00:05:01,560 Speaker 1: had to swap out that jurf for an alternate. So, 87 00:05:01,880 --> 00:05:04,479 Speaker 1: you know, some hiccups, something that the court says that 88 00:05:04,520 --> 00:05:07,480 Speaker 1: they're probably going to try to learn from that experience. 89 00:05:07,880 --> 00:05:11,000 Speaker 1: Speaking of hiccups, jurors are always told not to have 90 00:05:11,040 --> 00:05:14,479 Speaker 1: any contact with the parties or their attorneys, but in 91 00:05:14,520 --> 00:05:18,599 Speaker 1: a California virtual trial, the jurors were caught talking to 92 00:05:18,640 --> 00:05:22,360 Speaker 1: the plaintiff. How did that happens? And the plaintiff we're 93 00:05:22,600 --> 00:05:25,600 Speaker 1: kind of talking about how to set zoom background, while 94 00:05:25,760 --> 00:05:28,640 Speaker 1: the council for the parties left some unattended during a 95 00:05:28,680 --> 00:05:33,240 Speaker 1: bench conference and the judge admonished the jury ensued some 96 00:05:33,320 --> 00:05:38,000 Speaker 1: new procedures, but ultimately included that there was no harm there. 97 00:05:38,360 --> 00:05:42,360 Speaker 1: But those are things that can potentially happen in virtual trials. 98 00:05:42,400 --> 00:05:45,960 Speaker 1: And there are some groups that have been preposed to 99 00:05:46,120 --> 00:05:48,680 Speaker 1: virtual trials, you know, for that reason that they don't 100 00:05:48,680 --> 00:05:50,480 Speaker 1: believe that it is a fair way to go about 101 00:05:50,480 --> 00:05:53,880 Speaker 1: the process. Is Texas the only state that had a 102 00:05:53,920 --> 00:05:58,520 Speaker 1: full virtual trial in a criminal case. So the judges 103 00:05:58,560 --> 00:06:02,520 Speaker 1: have to get the lawyers the litigants to consent. Is 104 00:06:02,560 --> 00:06:06,279 Speaker 1: that difficult to do in many cases? Yeah? I mean 105 00:06:06,760 --> 00:06:09,599 Speaker 1: so we we spoke to a few judges, uh, you know, 106 00:06:09,680 --> 00:06:11,400 Speaker 1: for for one of our stories that we were doing, 107 00:06:11,520 --> 00:06:15,720 Speaker 1: and um, one judge mentioned that it was hard to 108 00:06:15,800 --> 00:06:19,159 Speaker 1: get some of these parties to agree, uh to a 109 00:06:19,240 --> 00:06:22,600 Speaker 1: virtual trial. I think that's going to be a big, 110 00:06:22,720 --> 00:06:25,640 Speaker 1: big hiccup. I I get to speak to a judge 111 00:06:25,680 --> 00:06:28,599 Speaker 1: that will go forward with a trial without that consent. 112 00:06:28,640 --> 00:06:32,040 Speaker 1: It's it's it's a huge part of what allows these 113 00:06:32,080 --> 00:06:35,120 Speaker 1: proceedings to go forward. So, um, you know, if the 114 00:06:35,200 --> 00:06:38,359 Speaker 1: parties don't agree to to make sure that these things 115 00:06:38,400 --> 00:06:42,760 Speaker 1: can be remote, um, that could also be a blockade 116 00:06:42,880 --> 00:06:47,440 Speaker 1: from some proceedings going forwards. And you mentioned that even 117 00:06:47,440 --> 00:06:51,240 Speaker 1: in one state, there can be differences in how the 118 00:06:51,320 --> 00:06:53,760 Speaker 1: judges feel, how the chief judges feel about it. For 119 00:06:53,800 --> 00:06:58,120 Speaker 1: example in Texas, right, and that's where that's where a 120 00:06:58,160 --> 00:07:03,000 Speaker 1: lot of those read anal health conditions can come into play. 121 00:07:03,240 --> 00:07:07,440 Speaker 1: So if if there are areas within that district that 122 00:07:07,520 --> 00:07:12,760 Speaker 1: have had large spikes and coronavirus, that might characterize where 123 00:07:12,800 --> 00:07:16,240 Speaker 1: that district goes with some of its orders. Uh. So 124 00:07:16,440 --> 00:07:19,160 Speaker 1: there can be differences, you know, like you said, from 125 00:07:19,200 --> 00:07:23,760 Speaker 1: from district to district. Now, I was surprised that in 126 00:07:24,280 --> 00:07:28,400 Speaker 1: Northern Texas they're planning to have a virtual trial, but 127 00:07:28,440 --> 00:07:31,840 Speaker 1: it's not until next spring. What is that going to 128 00:07:31,920 --> 00:07:35,360 Speaker 1: do to the docket if even the virtual trials take 129 00:07:35,520 --> 00:07:39,760 Speaker 1: so long to set up. So that's definitely a concern 130 00:07:40,000 --> 00:07:45,520 Speaker 1: for uh, for federal judges that the coronavirus pandemic has 131 00:07:45,600 --> 00:07:50,000 Speaker 1: really prevented jury trials from going forward. And you know, 132 00:07:50,200 --> 00:07:53,120 Speaker 1: even if if courts are starting jury trials, it might 133 00:07:53,160 --> 00:07:56,640 Speaker 1: not be uh, it might not be a large jury 134 00:07:56,640 --> 00:08:01,720 Speaker 1: trial with multiple descendants. Uh probably Uh. You know, the 135 00:08:02,080 --> 00:08:04,440 Speaker 1: simpler trials that could get done in a in a 136 00:08:04,520 --> 00:08:08,080 Speaker 1: short uh you know, a short amount of time that 137 00:08:08,160 --> 00:08:10,440 Speaker 1: don't doesn't require a lot of people to be in 138 00:08:10,480 --> 00:08:14,400 Speaker 1: the room. Uh. And so it is going to kick 139 00:08:14,760 --> 00:08:17,720 Speaker 1: some of those cases down the line for a lot 140 00:08:17,760 --> 00:08:19,960 Speaker 1: of courts, and they're going to have to figure out 141 00:08:20,040 --> 00:08:23,200 Speaker 1: how to you know, do a large amount of dury 142 00:08:23,200 --> 00:08:26,600 Speaker 1: trials at some point when that is going to happen. 143 00:08:26,720 --> 00:08:28,800 Speaker 1: Is is a question that I think a lot of 144 00:08:28,800 --> 00:08:32,280 Speaker 1: people are asking themselves right now. In the judiciary doesn't 145 00:08:32,320 --> 00:08:36,080 Speaker 1: really seem like there is too much of an end insight, So, um, 146 00:08:36,120 --> 00:08:39,439 Speaker 1: it's a consideration. I think a lot of subtle judges 147 00:08:39,480 --> 00:08:42,400 Speaker 1: their way in right now, how else are they moving 148 00:08:42,440 --> 00:08:46,000 Speaker 1: the dockets besides jury trials? What else are they doing? 149 00:08:46,880 --> 00:08:51,319 Speaker 1: So an interesting way that some subtle judges are addressing 150 00:08:51,400 --> 00:08:55,600 Speaker 1: this is by looking at the rest of the docket 151 00:08:55,720 --> 00:09:00,119 Speaker 1: that that can be addressed. Um, they're they're making sure 152 00:08:59,880 --> 00:09:03,520 Speaker 1: they're they're kind of clearing their plates. So when that 153 00:09:03,640 --> 00:09:07,320 Speaker 1: day that they can address jury trial comes, uh, they 154 00:09:07,400 --> 00:09:10,280 Speaker 1: don't have anything else. Uh they can you know, they 155 00:09:10,280 --> 00:09:14,160 Speaker 1: can really turn their attention to that. So uh, for example, 156 00:09:14,440 --> 00:09:17,280 Speaker 1: in in the Southern distric of Texas, the chief said 157 00:09:17,440 --> 00:09:20,959 Speaker 1: Lee Rosenthal said that that is something that she is 158 00:09:21,600 --> 00:09:26,320 Speaker 1: doing and she's focusing on, um, you know, some of 159 00:09:26,640 --> 00:09:29,400 Speaker 1: the other aspects of the docket. To make sure that 160 00:09:29,480 --> 00:09:33,360 Speaker 1: when dury trials happened, they are prepared to be able 161 00:09:33,400 --> 00:09:35,600 Speaker 1: to address them. I want to turn for a second 162 00:09:35,600 --> 00:09:38,480 Speaker 1: to another story you wrote. You wrote a story about 163 00:09:38,640 --> 00:09:46,400 Speaker 1: how the relationship between judges and their clerks has necessarily changed, 164 00:09:46,640 --> 00:09:50,440 Speaker 1: and how judges are trying their best to to give 165 00:09:50,440 --> 00:09:54,280 Speaker 1: the most to their clerks in this environment. Usually there's 166 00:09:54,400 --> 00:09:57,360 Speaker 1: you know, there's a lot of contact between a judge 167 00:09:57,480 --> 00:09:59,840 Speaker 1: and clerk, whether it's on the Supreme Court level or 168 00:10:00,040 --> 00:10:04,640 Speaker 1: date court level. So one of the hallmark aspects of 169 00:10:05,320 --> 00:10:09,240 Speaker 1: clerkship experience is the mentorship that that clerks get when 170 00:10:09,240 --> 00:10:12,840 Speaker 1: they're with their judges, and a lot of that is 171 00:10:12,840 --> 00:10:14,800 Speaker 1: is in person. A lot of that is, you know, 172 00:10:14,840 --> 00:10:20,280 Speaker 1: open door policies and being able to discuss cases and 173 00:10:20,280 --> 00:10:23,280 Speaker 1: and talk about them in chambers with the other clerks present. 174 00:10:23,800 --> 00:10:26,920 Speaker 1: And of course during the pandemic, that has changed a lot. 175 00:10:27,600 --> 00:10:31,240 Speaker 1: Uh So in some courts, judges are allowing clerks to 176 00:10:31,280 --> 00:10:34,440 Speaker 1: come back in uh you know, maybe not every day, 177 00:10:34,640 --> 00:10:37,720 Speaker 1: but some a few days out of the week. And 178 00:10:37,880 --> 00:10:42,160 Speaker 1: in other courts, uh, clerks are starting out completely remotely. 179 00:10:42,280 --> 00:10:43,920 Speaker 1: We're we're kind of getting to the end of the 180 00:10:44,000 --> 00:10:47,719 Speaker 1: period here where the um cohort of clerks that that 181 00:10:47,840 --> 00:10:50,280 Speaker 1: started at this time last year's leaving and a new 182 00:10:50,320 --> 00:10:54,319 Speaker 1: coolhort is coming in. So um, you know that cohort 183 00:10:54,360 --> 00:10:57,960 Speaker 1: that's leaving had six months of a normal clerkship and 184 00:10:58,240 --> 00:11:00,680 Speaker 1: are and it's six months of an out some normal 185 00:11:00,760 --> 00:11:04,079 Speaker 1: clerkship when the when the pandemic hit in March and 186 00:11:04,360 --> 00:11:08,880 Speaker 1: the new class coming in is kind of starting remotely. 187 00:11:08,880 --> 00:11:12,080 Speaker 1: They're starting in a very different environment. Uh. And and 188 00:11:12,120 --> 00:11:15,520 Speaker 1: that's something that both judges and courts are trying to 189 00:11:15,559 --> 00:11:20,040 Speaker 1: address right now, is how to onboard those new clerks 190 00:11:20,080 --> 00:11:24,079 Speaker 1: and help them get that same experience or a similar experience. 191 00:11:24,240 --> 00:11:25,760 Speaker 1: What are some of the things that the judges are 192 00:11:25,800 --> 00:11:30,560 Speaker 1: doing to try to replicate the experience. So on the 193 00:11:30,640 --> 00:11:35,520 Speaker 1: night circuit Um Judge Margaret McKillen is doing socially distant 194 00:11:35,559 --> 00:11:39,440 Speaker 1: picnics with her her clerks. She's done something that she 195 00:11:39,520 --> 00:11:44,200 Speaker 1: calls quarantine e hours um. But she's also spearheaded circuit 196 00:11:44,320 --> 00:11:49,000 Speaker 1: wide virtual brown bags for the other clerks to make 197 00:11:49,000 --> 00:11:51,000 Speaker 1: sure that they're connected with the rest of the court. 198 00:11:51,080 --> 00:11:53,200 Speaker 1: But they're still learning that, they're still engaging with the 199 00:11:53,240 --> 00:11:57,920 Speaker 1: other judges, and that's included things like uh, trivia and 200 00:11:58,240 --> 00:12:01,320 Speaker 1: Q and a s with uh judges who've just joined 201 00:12:01,360 --> 00:12:06,160 Speaker 1: the courts and even Judge Pet Show. Um. So you know, 202 00:12:06,200 --> 00:12:08,480 Speaker 1: it's just something to kind of keep the experience I 203 00:12:08,520 --> 00:12:11,840 Speaker 1: think light for for the clerks because you know, she 204 00:12:11,920 --> 00:12:15,760 Speaker 1: said they work very hard and uh, you know it's 205 00:12:15,960 --> 00:12:18,040 Speaker 1: an effort to kind of keep them a rout up 206 00:12:18,679 --> 00:12:21,920 Speaker 1: during this time as well. Um. But you know, aside 207 00:12:21,920 --> 00:12:24,560 Speaker 1: from that, uh, you know, the fun aspect of it, 208 00:12:24,760 --> 00:12:28,640 Speaker 1: judges are also just making time to talk to their 209 00:12:28,679 --> 00:12:33,840 Speaker 1: clerks on on the phone, um to you know, transition again. 210 00:12:33,920 --> 00:12:38,760 Speaker 1: As as Judge McEwen said, her open door policy has 211 00:12:38,800 --> 00:12:41,840 Speaker 1: kind of become an open email and open phone policy. 212 00:12:42,440 --> 00:12:46,320 Speaker 1: So judges are trying to find those creative ways to 213 00:12:46,320 --> 00:12:49,040 Speaker 1: to kind of keep that door opened for clerks to 214 00:12:49,440 --> 00:12:51,920 Speaker 1: get the mentorship and communicate with them the way they 215 00:12:52,000 --> 00:12:54,600 Speaker 1: might have in the chambers. Before I let you go, 216 00:12:54,880 --> 00:12:57,440 Speaker 1: I have to ask you what a Judge Pet show is. 217 00:13:00,280 --> 00:13:04,319 Speaker 1: So uh, Judge with Cwan said that some of the 218 00:13:04,400 --> 00:13:08,319 Speaker 1: judges were, you know, just introducing their their pets on 219 00:13:08,320 --> 00:13:12,360 Speaker 1: on camera and just a way for people to connect 220 00:13:12,440 --> 00:13:14,160 Speaker 1: and I think get to know each other a little 221 00:13:14,200 --> 00:13:17,760 Speaker 1: bit better in in the Ninth Circuit. But you know 222 00:13:17,920 --> 00:13:21,199 Speaker 1: we're Once that might have been a happy hour or 223 00:13:21,240 --> 00:13:24,600 Speaker 1: an in court event. Now it is a zoom virtual 224 00:13:24,679 --> 00:13:29,200 Speaker 1: pet show. Thanks Madison. That's Bloomberg Law Reporter Medicine Alder. 225 00:13:31,000 --> 00:13:34,520 Speaker 1: Columbia Law School has been keeping track of President Trump's 226 00:13:34,520 --> 00:13:39,040 Speaker 1: executive orders rolling back environmental regulations, and it's SABAN Center 227 00:13:39,120 --> 00:13:43,560 Speaker 1: for Climate Change Law through its Climate Deregulation Tracker. Now 228 00:13:43,600 --> 00:13:46,520 Speaker 1: it's suggesting a new course for executive action under a 229 00:13:46,559 --> 00:13:51,360 Speaker 1: possible Joe Biden administration to reverse Trump's one fifty nine 230 00:13:51,400 --> 00:13:56,800 Speaker 1: executive actions. Perhaps a climate reregulation Tracker. My guest is 231 00:13:56,920 --> 00:14:00,640 Speaker 1: environmental law expert Michael Gerard, the SABAN cent as director 232 00:14:00,640 --> 00:14:05,360 Speaker 1: and founder. Tell us about the Climate Deregulation Track or 233 00:14:05,480 --> 00:14:11,240 Speaker 1: that Columbia launched on January twentie. Once Donald Trump was 234 00:14:11,320 --> 00:14:14,720 Speaker 1: elected president, we knew that he would launch a campaign 235 00:14:14,800 --> 00:14:19,120 Speaker 1: of trying to cut back on repeal the environmental regulations. 236 00:14:19,200 --> 00:14:22,280 Speaker 1: He had pledged that during his campaign in his early 237 00:14:22,280 --> 00:14:24,840 Speaker 1: speech has made a clearly plan to carry that forward. 238 00:14:24,920 --> 00:14:29,080 Speaker 1: So on inauguration Day we launched the Climate Deregulation Tracker, 239 00:14:29,160 --> 00:14:31,680 Speaker 1: which tries to keep track of all the efforts by 240 00:14:31,720 --> 00:14:36,040 Speaker 1: the administration to roll back or repeal the environmental regulations, 241 00:14:36,120 --> 00:14:40,360 Speaker 1: especially those dealing with climate change. So in almost four years, 242 00:14:40,400 --> 00:14:44,480 Speaker 1: you've logged a hundred and fifty non executive actions that 243 00:14:44,560 --> 00:14:48,800 Speaker 1: fit that bill. Tell us about a few of the 244 00:14:48,840 --> 00:14:52,840 Speaker 1: most concerning ones to you. The greatest accomplishment of the 245 00:14:52,840 --> 00:14:56,400 Speaker 1: Alarm administration in terms of reducing greenhouse gas admissions was 246 00:14:56,920 --> 00:15:00,720 Speaker 1: forcing a deal with the auto industry to greatly improve 247 00:15:00,800 --> 00:15:06,120 Speaker 1: fuel economy standards, and so they adopted regulations that double 248 00:15:06,200 --> 00:15:10,560 Speaker 1: the fuel economy, greatly reducing greenhouse gas emissions and saving 249 00:15:10,600 --> 00:15:14,160 Speaker 1: consumers a lot of money in castline. So Trump took 250 00:15:14,200 --> 00:15:19,200 Speaker 1: moves to hold that to stop the agreed upon improvement 251 00:15:19,240 --> 00:15:23,480 Speaker 1: and puel economy. So that's one important measure. Another was 252 00:15:23,560 --> 00:15:28,600 Speaker 1: to cancel the effort to reduce the use of coal 253 00:15:28,680 --> 00:15:32,680 Speaker 1: to generate electricity. Coal fire power plants have been among 254 00:15:32,720 --> 00:15:36,280 Speaker 1: the largest sources of greenhouse gases in the US. But 255 00:15:36,720 --> 00:15:39,640 Speaker 1: President Trump is a real fan of coal, and so 256 00:15:39,720 --> 00:15:43,480 Speaker 1: he has moved um in many different fronts to try 257 00:15:43,520 --> 00:15:48,480 Speaker 1: to encourage rather than discourage coal, including canceling the Clean 258 00:15:48,560 --> 00:15:51,320 Speaker 1: Power Plan, which already had some legal problems, and coming 259 00:15:51,360 --> 00:15:54,360 Speaker 1: out with them aslee weaker one. Have most of his 260 00:15:54,600 --> 00:15:59,160 Speaker 1: policies been enacted through executive orders? Many of them have, 261 00:15:59,520 --> 00:16:03,480 Speaker 1: but many any of the others required going through changes 262 00:16:03,480 --> 00:16:07,960 Speaker 1: in the regulations, and those are required going through changes 263 00:16:07,960 --> 00:16:12,360 Speaker 1: in the regulations. Those that he couldn't do just unilatterly 264 00:16:12,400 --> 00:16:15,960 Speaker 1: by the stroke of a pen um. The agencies have 265 00:16:16,040 --> 00:16:19,240 Speaker 1: done a very poor job. There are laws, like the 266 00:16:19,240 --> 00:16:22,320 Speaker 1: Administrative Procedure Act in the National Environmental Policy Act that 267 00:16:22,400 --> 00:16:27,960 Speaker 1: require detailed explanations of why you're changing your policy and 268 00:16:27,760 --> 00:16:31,040 Speaker 1: and doing certain impacts, invents, and so forth, and the 269 00:16:31,080 --> 00:16:34,960 Speaker 1: Trump administration has accumulated a lousy record of doing that. 270 00:16:35,360 --> 00:16:38,520 Speaker 1: So everything that they have done to try to roll 271 00:16:38,560 --> 00:16:42,520 Speaker 1: back environmental regulations has been challenged in court just as 272 00:16:42,560 --> 00:16:47,440 Speaker 1: soon as it's right before challenge, and the administration has 273 00:16:47,520 --> 00:16:50,080 Speaker 1: lost a large number of those cases, mostly because they 274 00:16:50,160 --> 00:16:53,560 Speaker 1: just didn't follow the necessary procedures. And in some of 275 00:16:53,560 --> 00:16:56,720 Speaker 1: those cases where they've lost, are they redoing it and 276 00:16:56,760 --> 00:16:59,840 Speaker 1: retracing their steps so that they are in line with 277 00:17:00,000 --> 00:17:03,480 Speaker 1: the Administrative Procedures Act. Yeah, for most of these actions, 278 00:17:03,560 --> 00:17:06,159 Speaker 1: they are starting over. It takes a long time to 279 00:17:06,200 --> 00:17:11,240 Speaker 1: do it right. And if President Trump is not re elected, 280 00:17:11,320 --> 00:17:13,600 Speaker 1: they will have run out of run out of time 281 00:17:13,720 --> 00:17:17,240 Speaker 1: that the clock willer passed by the time they final. 282 00:17:17,320 --> 00:17:20,360 Speaker 1: But a few of them have u run the multiple 283 00:17:20,480 --> 00:17:25,320 Speaker 1: gauntlets that have become final. Trump instituted this two for 284 00:17:25,440 --> 00:17:28,520 Speaker 1: one deregulation that you had to get rid of two 285 00:17:28,720 --> 00:17:31,639 Speaker 1: laws or regulations for every new one that you wanted 286 00:17:31,680 --> 00:17:36,560 Speaker 1: to institute. When he deregulates in the area of the environment, 287 00:17:36,880 --> 00:17:39,919 Speaker 1: does it always end up being detrimental to the environment. 288 00:17:40,640 --> 00:17:42,920 Speaker 1: There may have been some very small items they didn't 289 00:17:42,960 --> 00:17:47,160 Speaker 1: get much attention, that were neutral or that were generally 290 00:17:47,200 --> 00:17:49,520 Speaker 1: agreed upon as as steps in the right direction, but 291 00:17:49,600 --> 00:17:52,680 Speaker 1: those are a few one far between, and I don't 292 00:17:52,680 --> 00:17:55,560 Speaker 1: believe that there were any in the climate change area 293 00:17:55,640 --> 00:17:59,679 Speaker 1: that would fit that description. When President Obama left office, 294 00:17:59,760 --> 00:18:05,399 Speaker 1: he left this environmental legacy behind. Just broadly speaking, how 295 00:18:05,480 --> 00:18:10,840 Speaker 1: much of that legacy has been destroyed during the Trump administration, Well, 296 00:18:10,880 --> 00:18:13,679 Speaker 1: a good deal of it has been put on hold 297 00:18:14,160 --> 00:18:17,720 Speaker 1: or reverse destroyed. Goes too far, because depending on the 298 00:18:17,720 --> 00:18:19,959 Speaker 1: outcome of the election, a lot of it is why 299 00:18:19,960 --> 00:18:22,720 Speaker 1: I could have been revived, but he did go after 300 00:18:23,520 --> 00:18:27,439 Speaker 1: a very large portion of Obama's environmental legacy. Tell us 301 00:18:27,440 --> 00:18:30,360 Speaker 1: about the new report that your Center has come out 302 00:18:30,480 --> 00:18:35,520 Speaker 1: with suggesting a course for a possible Biden administration. So 303 00:18:35,600 --> 00:18:39,960 Speaker 1: we came out with a report called Climate Reregulation in 304 00:18:40,000 --> 00:18:44,520 Speaker 1: a Biden Administration. And the idea is that if Vice 305 00:18:44,600 --> 00:18:48,600 Speaker 1: President Biden does win the election, he's going to want 306 00:18:48,600 --> 00:18:52,359 Speaker 1: to restore many of those actions from the Obama Biden 307 00:18:52,400 --> 00:18:54,879 Speaker 1: administration and then go beyond that. And so what we 308 00:18:55,000 --> 00:18:58,480 Speaker 1: tried to do is to go through all of the 309 00:18:58,520 --> 00:19:04,040 Speaker 1: climate related actions that Trump had taken to move back 310 00:19:04,080 --> 00:19:06,520 Speaker 1: on what Obama had done, to figure out how to 311 00:19:06,560 --> 00:19:08,760 Speaker 1: put him back in place, and the route beyond. But 312 00:19:08,880 --> 00:19:13,639 Speaker 1: often they involved fairly complicated procedures by different agencies. So 313 00:19:13,680 --> 00:19:16,560 Speaker 1: we tried to lay it all out as a roadmap 314 00:19:16,640 --> 00:19:19,480 Speaker 1: for what the next administration might do. If everything in 315 00:19:19,480 --> 00:19:22,439 Speaker 1: this report were followed, would that bring us back to 316 00:19:22,560 --> 00:19:25,560 Speaker 1: the place we were free Trump, or would it put 317 00:19:25,640 --> 00:19:28,639 Speaker 1: us in an even better place. It would put us 318 00:19:28,640 --> 00:19:31,680 Speaker 1: in a somewhat better state, but not nearly good enough. 319 00:19:32,200 --> 00:19:35,760 Speaker 1: At the end of the Obama administration, considerable progress had 320 00:19:35,800 --> 00:19:39,560 Speaker 1: been made on the fighting climate change, but a lot 321 00:19:39,600 --> 00:19:42,800 Speaker 1: more needed to be done. So this creates the foundation, 322 00:19:42,840 --> 00:19:45,359 Speaker 1: but it's not good enough to just put us back 323 00:19:45,400 --> 00:19:48,960 Speaker 1: to two thousand sixteen. We need to move a lot 324 00:19:49,000 --> 00:19:51,920 Speaker 1: further than that. So now, of the hundred and fifty 325 00:19:52,000 --> 00:19:56,800 Speaker 1: nine executive actions that you've logged, are those easy enough 326 00:19:56,960 --> 00:20:01,399 Speaker 1: to reverse? Well, some of them, like the executive orders 327 00:20:01,560 --> 00:20:04,359 Speaker 1: or the revocation of the prior executive orders, can be 328 00:20:04,400 --> 00:20:06,480 Speaker 1: done by the stroke of the pen. Others are more 329 00:20:06,520 --> 00:20:10,160 Speaker 1: complicated because they have to go through the same process 330 00:20:10,200 --> 00:20:13,240 Speaker 1: as the Administrative Procedure Act of the National Environmental Policy 331 00:20:13,280 --> 00:20:16,080 Speaker 1: Acts and so forth that are required for any change 332 00:20:16,080 --> 00:20:18,760 Speaker 1: in regulation. So some of them can be done on 333 00:20:19,000 --> 00:20:24,359 Speaker 1: day one. Some of them will require considerably longer. Let's 334 00:20:24,520 --> 00:20:28,639 Speaker 1: talk about some of the recommendations. One is rejoined the 335 00:20:28,720 --> 00:20:31,840 Speaker 1: Paris Agreement, So tell us why that's important and what 336 00:20:31,920 --> 00:20:35,360 Speaker 1: it would take. Well, that's about the easiest one. If 337 00:20:35,400 --> 00:20:38,720 Speaker 1: Biden becomes president and the writes letter to the u 338 00:20:38,840 --> 00:20:44,119 Speaker 1: N saying that the US is is rejoining U, the 339 00:20:44,200 --> 00:20:46,800 Speaker 1: U s will be accepted back with open arms. There's 340 00:20:46,840 --> 00:20:49,119 Speaker 1: like a thirty day waiting period, but there's nothing to it. 341 00:20:49,200 --> 00:20:56,840 Speaker 1: But the Paris Agreements signified international agreement consensus every country 342 00:20:56,840 --> 00:21:00,439 Speaker 1: in the world signed onto that the US is the 343 00:21:00,480 --> 00:21:03,920 Speaker 1: only country to affirmally withdrawn from it. But the US 344 00:21:04,119 --> 00:21:09,240 Speaker 1: it was historically the largest mirror of greenhouse gases, overtaken 345 00:21:09,280 --> 00:21:11,720 Speaker 1: by China, but it's now the second artist, but with 346 00:21:11,800 --> 00:21:15,639 Speaker 1: a much higher per capita emission. So the US withdrawal 347 00:21:15,720 --> 00:21:19,199 Speaker 1: from Paris and abandonment of climate action gives all the 348 00:21:19,240 --> 00:21:21,679 Speaker 1: other countries an excuse not to act if they If 349 00:21:21,720 --> 00:21:25,280 Speaker 1: the biggest pooter isn't acting, why should we. So rejoining 350 00:21:25,320 --> 00:21:31,040 Speaker 1: Paris has tremendous symbolic importance. Paris wasn't really binding in 351 00:21:31,080 --> 00:21:34,920 Speaker 1: many ways, but it symbolized that the US was part 352 00:21:35,000 --> 00:21:37,879 Speaker 1: of the global effort to fight climate change. Another thing 353 00:21:37,880 --> 00:21:41,840 Speaker 1: you want to do is begin reinstating greenhouse gas emission 354 00:21:41,920 --> 00:21:47,359 Speaker 1: standards on vehicles. Have some vehicles kept the greenhouse gas 355 00:21:47,400 --> 00:21:50,880 Speaker 1: standards because it's just better for them to sell their 356 00:21:50,920 --> 00:21:54,280 Speaker 1: cars as well? Yeah, Well, several of the automakers entered 357 00:21:54,320 --> 00:21:59,359 Speaker 1: into an agreement with California for slightly modifying but basically 358 00:21:59,400 --> 00:22:04,920 Speaker 1: continually what the prior standards were, and so that is terrific. 359 00:22:05,760 --> 00:22:08,600 Speaker 1: Other automakers didn't do that. One problem with these standards 360 00:22:08,720 --> 00:22:11,600 Speaker 1: is the automakers need to know several years in advance 361 00:22:11,760 --> 00:22:13,760 Speaker 1: what kind of cars they need to build, because they 362 00:22:13,800 --> 00:22:18,720 Speaker 1: need to retool their plants, and so this whole uncertainty 363 00:22:18,720 --> 00:22:22,679 Speaker 1: over the h but standard supply has really been a 364 00:22:22,680 --> 00:22:24,879 Speaker 1: major problem for the automakers trying to fear at what 365 00:22:24,960 --> 00:22:27,480 Speaker 1: kind of cars to make. But you know, all the 366 00:22:27,520 --> 00:22:31,680 Speaker 1: major automakers had agreed to this, uh, these tighter standards 367 00:22:31,680 --> 00:22:34,320 Speaker 1: in two thousand and ten, and the fact that several 368 00:22:34,359 --> 00:22:37,639 Speaker 1: of them signed on too continuation of it shows that 369 00:22:37,720 --> 00:22:42,560 Speaker 1: they're absolutely technically feasible. Another suggestion is to start to 370 00:22:42,600 --> 00:22:45,840 Speaker 1: reverse the Affordable Clean Energy Rule. So you'll have to 371 00:22:45,840 --> 00:22:50,480 Speaker 1: explain the Affordable Clean Energy rule. So under Obama, they 372 00:22:50,520 --> 00:22:54,680 Speaker 1: adopted the Clean Power Plan, which was aimed at reduced 373 00:22:54,680 --> 00:22:58,760 Speaker 1: mostly at reducing use of coal to make electricity. The 374 00:22:58,800 --> 00:23:02,359 Speaker 1: Clean Power Plan was stayed by the Supreme Court in 375 00:23:02,480 --> 00:23:06,840 Speaker 1: early two thousand and sixteen pending litigation, and that litigation 376 00:23:07,359 --> 00:23:11,080 Speaker 1: it still hasn't been resolved. The Affordable Clean Energy Rules, 377 00:23:11,119 --> 00:23:15,080 Speaker 1: as they call it, is a very very pale substitute 378 00:23:15,119 --> 00:23:17,719 Speaker 1: for the clean power plant. It's it's what the Trumpet 379 00:23:17,720 --> 00:23:21,560 Speaker 1: administration put in place instead of the Clean Power Plan, 380 00:23:21,680 --> 00:23:25,160 Speaker 1: but it would only achieve a fraction of its results, 381 00:23:25,440 --> 00:23:29,240 Speaker 1: and so we need something new. Uh. They probably won't 382 00:23:29,280 --> 00:23:32,360 Speaker 1: just simply reenact the Clean Power Plan because it has 383 00:23:32,359 --> 00:23:34,199 Speaker 1: some legalishes, But I think they're going to try to 384 00:23:34,200 --> 00:23:38,520 Speaker 1: move me on. Has Joe Biden committed to most of 385 00:23:38,560 --> 00:23:43,040 Speaker 1: the things that you are suggesting in your report. Well, 386 00:23:43,040 --> 00:23:46,320 Speaker 1: he has committed to vigorous action on climate change and 387 00:23:46,440 --> 00:23:53,800 Speaker 1: to a net zero emission economy by with various interim targets. Uh. 388 00:23:53,840 --> 00:23:57,360 Speaker 1: He's said that he'll rejoin the Paris Agreement, and he's 389 00:23:57,560 --> 00:24:00,439 Speaker 1: spoken about a great deal of these actions. He haven't 390 00:24:00,560 --> 00:24:03,520 Speaker 1: yet gotten down to the level of specificity and our report, 391 00:24:04,280 --> 00:24:08,760 Speaker 1: but the overall, the rest of it, reviving the regulations 392 00:24:08,800 --> 00:24:12,920 Speaker 1: of the Obama Biden era and moving beyond it are 393 00:24:12,960 --> 00:24:15,680 Speaker 1: certainly something that he has committed to. Will it take 394 00:24:15,760 --> 00:24:18,200 Speaker 1: him four years if he's elected to get through these 395 00:24:18,440 --> 00:24:21,239 Speaker 1: to reverse it? He shouldn't take four years to do 396 00:24:21,280 --> 00:24:24,119 Speaker 1: all of this. But some of them can be done, 397 00:24:24,520 --> 00:24:27,480 Speaker 1: they say, in day one. Others will take months or 398 00:24:27,880 --> 00:24:30,600 Speaker 1: a year or two. But ultimately, what is really needed 399 00:24:30,600 --> 00:24:34,320 Speaker 1: on climate changes legislation. And a big question can legislation 400 00:24:34,400 --> 00:24:39,440 Speaker 1: happened if the Senate flips, if we have a democratic 401 00:24:39,440 --> 00:24:41,560 Speaker 1: control of both of the House and the Senate, that 402 00:24:41,680 --> 00:24:44,520 Speaker 1: might well happen. Then it wouldn't surprise me if a 403 00:24:44,640 --> 00:24:47,760 Speaker 1: President Biden tries to push for that. I think everybody 404 00:24:47,800 --> 00:24:51,000 Speaker 1: agrees that the best solution would be for Congress to 405 00:24:51,040 --> 00:24:54,920 Speaker 1: act and not rely solely on presidential authority. The e 406 00:24:55,119 --> 00:24:58,679 Speaker 1: p A right now is not like the EPA, and 407 00:24:58,680 --> 00:25:03,320 Speaker 1: the Obama administration, obviously headed by a lobbyist, have a 408 00:25:03,320 --> 00:25:06,159 Speaker 1: lot of people left the agencies like the e p A, 409 00:25:06,359 --> 00:25:09,480 Speaker 1: so that it's going to be difficult to staff up again. 410 00:25:10,160 --> 00:25:12,520 Speaker 1: That's going to be a challenge. Um, there has certainly 411 00:25:12,560 --> 00:25:15,639 Speaker 1: been something of a brain drain and very little of 412 00:25:15,680 --> 00:25:19,120 Speaker 1: a brain intake. Most of the great young people who 413 00:25:19,119 --> 00:25:22,400 Speaker 1: are thinking about breaking in for government of the environment 414 00:25:22,400 --> 00:25:25,720 Speaker 1: where the last four years have gone into state government 415 00:25:25,840 --> 00:25:27,760 Speaker 1: rather than ep A. There are a lot of other 416 00:25:27,840 --> 00:25:30,760 Speaker 1: dedicated UH people who are still at EPA, some of 417 00:25:30,800 --> 00:25:33,480 Speaker 1: them who are sort of hanging on by their fingernails 418 00:25:33,680 --> 00:25:36,920 Speaker 1: based on what the election is. So it'll be a challenge, 419 00:25:36,920 --> 00:25:40,280 Speaker 1: but I don't think it's insuperable for EPA and the 420 00:25:40,280 --> 00:25:44,600 Speaker 1: other environmental agencies to get back to speed. You have 421 00:25:44,760 --> 00:25:47,560 Speaker 1: something for Biden to sign on his first day in 422 00:25:47,640 --> 00:25:50,920 Speaker 1: office if he wins election. What is that? Well, we 423 00:25:51,040 --> 00:25:54,600 Speaker 1: put in a draft executive Order um that he quits 424 00:25:54,640 --> 00:25:56,800 Speaker 1: on on the first day. You know. I'm sure others 425 00:25:56,840 --> 00:25:59,640 Speaker 1: are working on other drafts, but I think that he's 426 00:25:59,640 --> 00:26:02,720 Speaker 1: been in biden Cakes office. There will be pieces of 427 00:26:02,760 --> 00:26:05,919 Speaker 1: paper on his desk ready to be signed. Thanks for 428 00:26:05,960 --> 00:26:09,439 Speaker 1: being on the Bloomberg Law Show. That's Michael Gerard, founder 429 00:26:09,480 --> 00:26:12,200 Speaker 1: and director of the Sabin Center for Climate Change Law 430 00:26:12,280 --> 00:26:15,880 Speaker 1: at Columbia Law School. I'm June Grosso. Thanks so much 431 00:26:15,880 --> 00:26:18,560 Speaker 1: for listening, and please tune into The Bloomberg Law Show 432 00:26:18,600 --> 00:26:21,520 Speaker 1: every weeknight at ten pm Eastern on Bloomberg Radio.