WEBVTT - Will Kids’ Climate Lawsuit Get to Trial?

0:00:03.520 --> 0:00:07.040
<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

0:00:07.120 --> 0:00:09.680
<v Speaker 1>day we bring you insight and analysis into the most

0:00:09.720 --> 0:00:12.200
<v Speaker 1>important legal news of the day. You can find more

0:00:12.240 --> 0:00:16.160
<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

0:00:16.280 --> 0:00:19.959
<v Speaker 1>and on Bloomberg dot com slash podcasts. A novel climate

0:00:20.040 --> 0:00:22.960
<v Speaker 1>change lawsuit by a group of twenty one young Americans

0:00:23.040 --> 0:00:26.720
<v Speaker 1>based a pivotal appeals court hearing on Tuesday. During the

0:00:26.760 --> 0:00:29.800
<v Speaker 1>hour long arguments, three judges from the Ninth Circuit Court

0:00:29.800 --> 0:00:33.000
<v Speaker 1>of Appeals grapple with the question of whether climate change

0:00:33.080 --> 0:00:36.520
<v Speaker 1>violates the constitutional rights of the young people who sued

0:00:36.560 --> 0:00:39.680
<v Speaker 1>the US government over the use of fossil fuels. Joining me,

0:00:39.720 --> 0:00:43.360
<v Speaker 1>as Charles Warren, head of the environmental practice at Kramer Levin,

0:00:43.880 --> 0:00:47.280
<v Speaker 1>Chuck tell us, what makes the arguments of these young

0:00:47.400 --> 0:00:51.479
<v Speaker 1>plaintiff's novel? Well, June, this is really novel, and that

0:00:51.560 --> 0:00:54.360
<v Speaker 1>there's never been an argument put forth that there's a

0:00:54.480 --> 0:01:00.880
<v Speaker 1>constitutional right to be protected from fossil few rules in effect,

0:01:00.960 --> 0:01:03.680
<v Speaker 1>and what they're saying here is that they would like

0:01:04.160 --> 0:01:08.080
<v Speaker 1>the court defined that this is a violation of their

0:01:08.319 --> 0:01:13.240
<v Speaker 1>Fifth Amendment rights to life, liberty, and property, and there's

0:01:13.240 --> 0:01:17.840
<v Speaker 1>never been anything like that in the environmental area, since

0:01:18.160 --> 0:01:22.200
<v Speaker 1>most lawsuits and rights are vindicated either under federal or

0:01:22.280 --> 0:01:27.320
<v Speaker 1>state laws or common laws like news trespass and things

0:01:27.400 --> 0:01:30.880
<v Speaker 1>like that, But no court has ever said that there's

0:01:30.920 --> 0:01:35.720
<v Speaker 1>a constitutional right to be protected against fossil fuels in effects,

0:01:36.000 --> 0:01:39.880
<v Speaker 1>and judges are often uncomfortable with breaking new legal ground.

0:01:40.240 --> 0:01:43.360
<v Speaker 1>In this case, Judge Andrew Herwitt said to the plaintiff's attorney,

0:01:43.600 --> 0:01:45.840
<v Speaker 1>you're asking us to do a lot of new stuff,

0:01:45.880 --> 0:01:48.880
<v Speaker 1>aren't you. But why not let the case go to

0:01:48.960 --> 0:01:52.760
<v Speaker 1>trial where all the evidence can be presented and see

0:01:52.760 --> 0:01:55.960
<v Speaker 1>if the plaintiffs can meet their burden. I think that's

0:01:56.000 --> 0:01:59.720
<v Speaker 1>something that the district judge basically said ought to happen,

0:02:00.360 --> 0:02:02.920
<v Speaker 1>and I think that there's something to be said for that,

0:02:03.080 --> 0:02:05.760
<v Speaker 1>and see what kind of evidence that they can present.

0:02:05.840 --> 0:02:09.720
<v Speaker 1>Although there are threshold legal issues that I think the

0:02:09.720 --> 0:02:12.400
<v Speaker 1>court's grappling with as to whether there is really a

0:02:12.440 --> 0:02:17.280
<v Speaker 1>constitutional right here because in other cases not quite the

0:02:17.360 --> 0:02:20.919
<v Speaker 1>same as this, But when people have tried to attack

0:02:21.320 --> 0:02:26.000
<v Speaker 1>greenhouse gases or air pollution using other theories behind, you know,

0:02:26.040 --> 0:02:29.720
<v Speaker 1>going beyond the statutory framework, the courts basically said, no,

0:02:29.880 --> 0:02:32.919
<v Speaker 1>you have to get relief using the Clean Air Act

0:02:33.000 --> 0:02:35.080
<v Speaker 1>or something like that. So I think that's a hurdle

0:02:35.120 --> 0:02:37.560
<v Speaker 1>that they're going to have to get over. But there's

0:02:37.560 --> 0:02:39.600
<v Speaker 1>a possibility they could get over that and at least

0:02:39.600 --> 0:02:42.519
<v Speaker 1>go to trial and see what they can develop through

0:02:42.720 --> 0:02:46.320
<v Speaker 1>presenting evidence. The government called the case a dagger at

0:02:46.360 --> 0:02:49.920
<v Speaker 1>the separation of powers. Is that one of the government's

0:02:50.000 --> 0:02:53.760
<v Speaker 1>best arguments and the toughest hurdles for the plaintiffs whether

0:02:53.800 --> 0:02:56.799
<v Speaker 1>the courts can even step in. I think that is

0:02:56.840 --> 0:02:58.560
<v Speaker 1>a problem. I think that is a problem for the

0:02:58.639 --> 0:03:01.480
<v Speaker 1>plane is because what they're based stically saying is that

0:03:02.639 --> 0:03:05.639
<v Speaker 1>the executive branch, through the laws that have been passed,

0:03:05.680 --> 0:03:09.600
<v Speaker 1>really governs this whole area. And now you're saying that

0:03:09.680 --> 0:03:13.760
<v Speaker 1>the courts can step in and vindicate a right that

0:03:13.880 --> 0:03:16.840
<v Speaker 1>goes beyond that, and that would be a big change.

0:03:17.520 --> 0:03:19.320
<v Speaker 1>And so I do think that's a big hurdle that

0:03:19.400 --> 0:03:22.200
<v Speaker 1>the planeffs have to overcome. Another hurdle seems to be

0:03:22.320 --> 0:03:25.200
<v Speaker 1>and the judges were asking a lot of questions about

0:03:25.440 --> 0:03:29.600
<v Speaker 1>what type of remedy could a court put in place. Well,

0:03:29.639 --> 0:03:33.280
<v Speaker 1>they're asking for the court to basically order the government

0:03:33.320 --> 0:03:37.480
<v Speaker 1>to develop plans that would reduce dependence on greenhouse gases,

0:03:38.000 --> 0:03:42.560
<v Speaker 1>and that would be something where courts don't often come

0:03:42.680 --> 0:03:46.760
<v Speaker 1>up with plans like that, where they specifically order a

0:03:46.840 --> 0:03:50.640
<v Speaker 1>government agency to come up with ways to reduce let's say,

0:03:50.680 --> 0:03:53.440
<v Speaker 1>air pollution or water pollution or something like that, because

0:03:53.480 --> 0:03:56.480
<v Speaker 1>that's what you have a status story scheme for. And

0:03:56.680 --> 0:03:58.520
<v Speaker 1>you know, if they're violating the stat story scheme, that's

0:03:58.520 --> 0:04:01.040
<v Speaker 1>one thing, but it's hard to say, now you must

0:04:01.080 --> 0:04:04.040
<v Speaker 1>come up with a whole new program. And that's what

0:04:04.120 --> 0:04:06.960
<v Speaker 1>I think the government is trying to get at and saying,

0:04:07.160 --> 0:04:09.720
<v Speaker 1>you really can't do that as a court. So there

0:04:09.800 --> 0:04:13.240
<v Speaker 1>is certainly some president for that. So this is the

0:04:13.280 --> 0:04:17.400
<v Speaker 1>second time that the Ninth Circuit has considered this case.

0:04:17.839 --> 0:04:20.480
<v Speaker 1>It was just ten days away from trial in October

0:04:21.480 --> 0:04:25.320
<v Speaker 1>when the Supreme Court paused it. So will any decision

0:04:25.360 --> 0:04:29.000
<v Speaker 1>here likely be appealed to the Supreme Court? And how

0:04:29.120 --> 0:04:32.240
<v Speaker 1>is it likely to fare there? Yes, I believe that

0:04:32.279 --> 0:04:35.360
<v Speaker 1>any decision here would likely go to the Supreme Court,

0:04:35.400 --> 0:04:38.960
<v Speaker 1>particularly if the government loses, they'll absolutely take it to

0:04:39.000 --> 0:04:42.520
<v Speaker 1>the Supreme Court. And I would think it would not

0:04:42.640 --> 0:04:45.960
<v Speaker 1>farewell in the Supreme Court given the composition the court

0:04:46.000 --> 0:04:49.000
<v Speaker 1>and given the fact that this is a novel legal theory.

0:04:49.080 --> 0:04:52.680
<v Speaker 1>I wouldn't expect this court to really embrace it at all.

0:04:53.960 --> 0:04:58.320
<v Speaker 1>Have there been any environmental decisions this term that showed

0:04:58.400 --> 0:05:03.360
<v Speaker 1>the Court changing the way it sees environmental cases. No,

0:05:03.400 --> 0:05:06.760
<v Speaker 1>not particularly, not really, They've always been tough on environmental

0:05:06.880 --> 0:05:09.479
<v Speaker 1>This court has been tough on environment Yeah, this this

0:05:09.560 --> 0:05:12.760
<v Speaker 1>court has been. And probably the next big case it

0:05:12.800 --> 0:05:15.640
<v Speaker 1>will get up there is going to be when the

0:05:15.720 --> 0:05:19.919
<v Speaker 1>Government comes out soon with the new clean power plant revisions,

0:05:19.920 --> 0:05:24.359
<v Speaker 1>which are going to cut back significantly and the previous regulations,

0:05:24.440 --> 0:05:26.359
<v Speaker 1>and that will probably go up to the Supreme Court.

0:05:27.320 --> 0:05:30.479
<v Speaker 1>Now I'm wondering, you know, the Court is not supposed

0:05:30.520 --> 0:05:35.640
<v Speaker 1>to be influenced by what's happening outside, but in this case,

0:05:36.000 --> 0:05:40.599
<v Speaker 1>because there's so much talk about climate change recently, does

0:05:40.680 --> 0:05:43.760
<v Speaker 1>that affect the way the Court is thinking that Congress

0:05:43.839 --> 0:05:46.400
<v Speaker 1>is not going to do anything and the President is

0:05:46.400 --> 0:05:48.080
<v Speaker 1>not going to do anything, so maybe we do have

0:05:48.120 --> 0:05:55.040
<v Speaker 1>to step in. Not Usually, most courts are generally conservative institutions,

0:05:55.360 --> 0:05:58.680
<v Speaker 1>and it's rare that they step in. And this would

0:05:58.680 --> 0:06:02.559
<v Speaker 1>require a big step in something like this, certainly, And

0:06:03.040 --> 0:06:05.839
<v Speaker 1>I think it would be whether or not they would

0:06:05.960 --> 0:06:11.039
<v Speaker 1>uphold or overturn the regulations that come out under the

0:06:11.040 --> 0:06:13.680
<v Speaker 1>Clean Power Plan. That would be that's something that's sort

0:06:13.720 --> 0:06:16.680
<v Speaker 1>of goes in the normal course. But something like this,

0:06:16.800 --> 0:06:19.440
<v Speaker 1>I think is a very big step, and I don't

0:06:19.480 --> 0:06:22.120
<v Speaker 1>think that the Core would be necessarily influenced by what's

0:06:22.160 --> 0:06:26.520
<v Speaker 1>happening outside. Chuck, what happened the last time this went

0:06:26.640 --> 0:06:29.560
<v Speaker 1>to the Ninth Circuit? Why is it back? Yeah? The

0:06:29.640 --> 0:06:33.280
<v Speaker 1>Ninth Circuit basically sent it back and they wanted the

0:06:33.400 --> 0:06:38.480
<v Speaker 1>court to develop you some further information and material. That's

0:06:38.800 --> 0:06:42.120
<v Speaker 1>that's what happened. And now it's been appealed again the court,

0:06:42.279 --> 0:06:46.200
<v Speaker 1>you know, after they lower court went through a process

0:06:46.279 --> 0:06:50.680
<v Speaker 1>and basically said the case could proceed again. Now back

0:06:50.720 --> 0:06:54.039
<v Speaker 1>at the Ninth Circuit. Well, it's been fought by the

0:06:54.040 --> 0:06:57.880
<v Speaker 1>Trump administration, the Obama administration, and they keep going. Thanks

0:06:57.920 --> 0:07:00.280
<v Speaker 1>so much, Chuck. That's Charles Warren. He's head of the

0:07:00.360 --> 0:07:06.280
<v Speaker 1>environmental practice at Kramer Levin. Thanks for listening to the

0:07:06.320 --> 0:07:09.680
<v Speaker 1>Bloomberg Law Podcast. You can subscribe and listen to the

0:07:09.720 --> 0:07:13.640
<v Speaker 1>show on Apple Podcasts, SoundCloud, and on Bloomberg dot com

0:07:13.720 --> 0:07:17.880
<v Speaker 1>slash podcast. I'm June Grasso. This is Bloomberg