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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. A novel climate

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Speaker 1: change lawsuit by a group of twenty one young Americans

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Speaker 1: based a pivotal appeals court hearing on Tuesday. During the

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Speaker 1: hour long arguments, three judges from the Ninth Circuit Court

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Speaker 1: of Appeals grapple with the question of whether climate change

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Speaker 1: violates the constitutional rights of the young people who sued

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Speaker 1: the US government over the use of fossil fuels. Joining me,

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Speaker 1: as Charles Warren, head of the environmental practice at Kramer Levin,

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Speaker 1: Chuck tell us, what makes the arguments of these young

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Speaker 1: plaintiff's novel? Well, June, this is really novel, and that

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Speaker 1: there's never been an argument put forth that there's a

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Speaker 1: constitutional right to be protected from fossil few rules in effect,

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Speaker 1: and what they're saying here is that they would like

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Speaker 1: the court defined that this is a violation of their

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Speaker 1: Fifth Amendment rights to life, liberty, and property, and there's

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Speaker 1: never been anything like that in the environmental area, since

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Speaker 1: most lawsuits and rights are vindicated either under federal or

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Speaker 1: state laws or common laws like news trespass and things

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Speaker 1: like that, But no court has ever said that there's

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Speaker 1: a constitutional right to be protected against fossil fuels in effects,

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Speaker 1: and judges are often uncomfortable with breaking new legal ground.

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Speaker 1: In this case, Judge Andrew Herwitt said to the plaintiff's attorney,

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Speaker 1: you're asking us to do a lot of new stuff,

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Speaker 1: aren't you. But why not let the case go to

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Speaker 1: trial where all the evidence can be presented and see

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Speaker 1: if the plaintiffs can meet their burden. I think that's

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Speaker 1: something that the district judge basically said ought to happen,

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Speaker 1: and I think that there's something to be said for that,

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Speaker 1: and see what kind of evidence that they can present.

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Speaker 1: Although there are threshold legal issues that I think the

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Speaker 1: court's grappling with as to whether there is really a

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Speaker 1: constitutional right here because in other cases not quite the

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Speaker 1: same as this, But when people have tried to attack

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Speaker 1: greenhouse gases or air pollution using other theories behind, you know,

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Speaker 1: going beyond the statutory framework, the courts basically said, no,

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Speaker 1: you have to get relief using the Clean Air Act

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Speaker 1: or something like that. So I think that's a hurdle

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Speaker 1: that they're going to have to get over. But there's

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Speaker 1: a possibility they could get over that and at least

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Speaker 1: go to trial and see what they can develop through

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Speaker 1: presenting evidence. The government called the case a dagger at

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Speaker 1: the separation of powers. Is that one of the government's

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Speaker 1: best arguments and the toughest hurdles for the plaintiffs whether

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Speaker 1: the courts can even step in. I think that is

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Speaker 1: a problem. I think that is a problem for the

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Speaker 1: plane is because what they're based stically saying is that

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Speaker 1: the executive branch, through the laws that have been passed,

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Speaker 1: really governs this whole area. And now you're saying that

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Speaker 1: the courts can step in and vindicate a right that

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Speaker 1: goes beyond that, and that would be a big change.

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Speaker 1: And so I do think that's a big hurdle that

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Speaker 1: the planeffs have to overcome. Another hurdle seems to be

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Speaker 1: and the judges were asking a lot of questions about

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Speaker 1: what type of remedy could a court put in place. Well,

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Speaker 1: they're asking for the court to basically order the government

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Speaker 1: to develop plans that would reduce dependence on greenhouse gases,

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Speaker 1: and that would be something where courts don't often come

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Speaker 1: up with plans like that, where they specifically order a

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Speaker 1: government agency to come up with ways to reduce let's say,

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Speaker 1: air pollution or water pollution or something like that, because

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Speaker 1: that's what you have a status story scheme for. And

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Speaker 1: you know, if they're violating the stat story scheme, that's

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Speaker 1: one thing, but it's hard to say, now you must

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Speaker 1: come up with a whole new program. And that's what

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Speaker 1: I think the government is trying to get at and saying,

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Speaker 1: you really can't do that as a court. So there

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Speaker 1: is certainly some president for that. So this is the

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Speaker 1: second time that the Ninth Circuit has considered this case.

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Speaker 1: It was just ten days away from trial in October

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Speaker 1: when the Supreme Court paused it. So will any decision

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Speaker 1: here likely be appealed to the Supreme Court? And how

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Speaker 1: is it likely to fare there? Yes, I believe that

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Speaker 1: any decision here would likely go to the Supreme Court,

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Speaker 1: particularly if the government loses, they'll absolutely take it to

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Speaker 1: the Supreme Court. And I would think it would not

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Speaker 1: farewell in the Supreme Court given the composition the court

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Speaker 1: and given the fact that this is a novel legal theory.

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Speaker 1: I wouldn't expect this court to really embrace it at all.

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Speaker 1: Have there been any environmental decisions this term that showed

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Speaker 1: the Court changing the way it sees environmental cases. No,

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Speaker 1: not particularly, not really, They've always been tough on environmental

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Speaker 1: This court has been tough on environment Yeah, this this

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Speaker 1: court has been. And probably the next big case it

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Speaker 1: will get up there is going to be when the

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Speaker 1: Government comes out soon with the new clean power plant revisions,

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Speaker 1: which are going to cut back significantly and the previous regulations,

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Speaker 1: and that will probably go up to the Supreme Court.

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Speaker 1: Now I'm wondering, you know, the Court is not supposed

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Speaker 1: to be influenced by what's happening outside, but in this case,

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Speaker 1: because there's so much talk about climate change recently, does

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Speaker 1: that affect the way the Court is thinking that Congress

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Speaker 1: is not going to do anything and the President is

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Speaker 1: not going to do anything, so maybe we do have

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Speaker 1: to step in. Not Usually, most courts are generally conservative institutions,

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Speaker 1: and it's rare that they step in. And this would

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Speaker 1: require a big step in something like this, certainly, And

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Speaker 1: I think it would be whether or not they would

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Speaker 1: uphold or overturn the regulations that come out under the

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Speaker 1: Clean Power Plan. That would be that's something that's sort

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Speaker 1: of goes in the normal course. But something like this,

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Speaker 1: I think is a very big step, and I don't

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Speaker 1: think that the Core would be necessarily influenced by what's

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Speaker 1: happening outside. Chuck, what happened the last time this went

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Speaker 1: to the Ninth Circuit? Why is it back? Yeah? The

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Speaker 1: Ninth Circuit basically sent it back and they wanted the

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Speaker 1: court to develop you some further information and material. That's

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Speaker 1: that's what happened. And now it's been appealed again the court,

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Speaker 1: you know, after they lower court went through a process

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Speaker 1: and basically said the case could proceed again. Now back

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Speaker 1: at the Ninth Circuit. Well, it's been fought by the

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Speaker 1: Trump administration, the Obama administration, and they keep going. Thanks

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Speaker 1: so much, Chuck. That's Charles Warren. He's head of the

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Speaker 1: environmental practice at Kramer Levin. Thanks for listening to the

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Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the

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Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com

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Speaker 1: slash podcast. I'm June Grasso. This is Bloomberg