Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. A novel climate
Speaker 1: change lawsuit by a group of twenty one young Americans
Speaker 1: based a pivotal appeals court hearing on Tuesday. During the
Speaker 1: hour long arguments, three judges from the Ninth Circuit Court
Speaker 1: of Appeals grapple with the question of whether climate change
Speaker 1: violates the constitutional rights of the young people who sued
Speaker 1: the US government over the use of fossil fuels. Joining me,
Speaker 1: as Charles Warren, head of the environmental practice at Kramer Levin,
Speaker 1: Chuck tell us, what makes the arguments of these young
Speaker 1: plaintiff's novel? Well, June, this is really novel, and that
Speaker 1: there's never been an argument put forth that there's a
Speaker 1: constitutional right to be protected from fossil few rules in effect,
Speaker 1: and what they're saying here is that they would like
Speaker 1: the court defined that this is a violation of their
Speaker 1: Fifth Amendment rights to life, liberty, and property, and there's
Speaker 1: never been anything like that in the environmental area, since
Speaker 1: most lawsuits and rights are vindicated either under federal or
Speaker 1: state laws or common laws like news trespass and things
Speaker 1: like that, But no court has ever said that there's
Speaker 1: a constitutional right to be protected against fossil fuels in effects,
Speaker 1: and judges are often uncomfortable with breaking new legal ground.
Speaker 1: In this case, Judge Andrew Herwitt said to the plaintiff's attorney,
Speaker 1: you're asking us to do a lot of new stuff,
Speaker 1: aren't you. But why not let the case go to
Speaker 1: trial where all the evidence can be presented and see
Speaker 1: if the plaintiffs can meet their burden. I think that's
Speaker 1: something that the district judge basically said ought to happen,
Speaker 1: and I think that there's something to be said for that,
Speaker 1: and see what kind of evidence that they can present.
Speaker 1: Although there are threshold legal issues that I think the
Speaker 1: court's grappling with as to whether there is really a
Speaker 1: constitutional right here because in other cases not quite the
Speaker 1: same as this, But when people have tried to attack
Speaker 1: greenhouse gases or air pollution using other theories behind, you know,
Speaker 1: going beyond the statutory framework, the courts basically said, no,
Speaker 1: you have to get relief using the Clean Air Act
Speaker 1: or something like that. So I think that's a hurdle
Speaker 1: that they're going to have to get over. But there's
Speaker 1: a possibility they could get over that and at least
Speaker 1: go to trial and see what they can develop through
Speaker 1: presenting evidence. The government called the case a dagger at
Speaker 1: the separation of powers. Is that one of the government's
Speaker 1: best arguments and the toughest hurdles for the plaintiffs whether
Speaker 1: the courts can even step in. I think that is
Speaker 1: a problem. I think that is a problem for the
Speaker 1: plane is because what they're based stically saying is that
Speaker 1: the executive branch, through the laws that have been passed,
Speaker 1: really governs this whole area. And now you're saying that
Speaker 1: the courts can step in and vindicate a right that
Speaker 1: goes beyond that, and that would be a big change.
Speaker 1: And so I do think that's a big hurdle that
Speaker 1: the planeffs have to overcome. Another hurdle seems to be
Speaker 1: and the judges were asking a lot of questions about
Speaker 1: what type of remedy could a court put in place. Well,
Speaker 1: they're asking for the court to basically order the government
Speaker 1: to develop plans that would reduce dependence on greenhouse gases,
Speaker 1: and that would be something where courts don't often come
Speaker 1: up with plans like that, where they specifically order a
Speaker 1: government agency to come up with ways to reduce let's say,
Speaker 1: air pollution or water pollution or something like that, because
Speaker 1: that's what you have a status story scheme for. And
Speaker 1: you know, if they're violating the stat story scheme, that's
Speaker 1: one thing, but it's hard to say, now you must
Speaker 1: come up with a whole new program. And that's what
Speaker 1: I think the government is trying to get at and saying,
Speaker 1: you really can't do that as a court. So there
Speaker 1: is certainly some president for that. So this is the
Speaker 1: second time that the Ninth Circuit has considered this case.
Speaker 1: It was just ten days away from trial in October
Speaker 1: when the Supreme Court paused it. So will any decision
Speaker 1: here likely be appealed to the Supreme Court? And how
Speaker 1: is it likely to fare there? Yes, I believe that
Speaker 1: any decision here would likely go to the Supreme Court,
Speaker 1: particularly if the government loses, they'll absolutely take it to
Speaker 1: the Supreme Court. And I would think it would not
Speaker 1: farewell in the Supreme Court given the composition the court
Speaker 1: and given the fact that this is a novel legal theory.
Speaker 1: I wouldn't expect this court to really embrace it at all.
Speaker 1: Have there been any environmental decisions this term that showed
Speaker 1: the Court changing the way it sees environmental cases. No,
Speaker 1: not particularly, not really, They've always been tough on environmental
Speaker 1: This court has been tough on environment Yeah, this this
Speaker 1: court has been. And probably the next big case it
Speaker 1: will get up there is going to be when the
Speaker 1: Government comes out soon with the new clean power plant revisions,
Speaker 1: which are going to cut back significantly and the previous regulations,
Speaker 1: and that will probably go up to the Supreme Court.
Speaker 1: Now I'm wondering, you know, the Court is not supposed
Speaker 1: to be influenced by what's happening outside, but in this case,
Speaker 1: because there's so much talk about climate change recently, does
Speaker 1: that affect the way the Court is thinking that Congress
Speaker 1: is not going to do anything and the President is
Speaker 1: not going to do anything, so maybe we do have
Speaker 1: to step in. Not Usually, most courts are generally conservative institutions,
Speaker 1: and it's rare that they step in. And this would
Speaker 1: require a big step in something like this, certainly, And
Speaker 1: I think it would be whether or not they would
Speaker 1: uphold or overturn the regulations that come out under the
Speaker 1: Clean Power Plan. That would be that's something that's sort
Speaker 1: of goes in the normal course. But something like this,
Speaker 1: I think is a very big step, and I don't
Speaker 1: think that the Core would be necessarily influenced by what's
Speaker 1: happening outside. Chuck, what happened the last time this went
Speaker 1: to the Ninth Circuit? Why is it back? Yeah? The
Speaker 1: Ninth Circuit basically sent it back and they wanted the
Speaker 1: court to develop you some further information and material. That's
Speaker 1: that's what happened. And now it's been appealed again the court,
Speaker 1: you know, after they lower court went through a process
Speaker 1: and basically said the case could proceed again. Now back
Speaker 1: at the Ninth Circuit. Well, it's been fought by the
Speaker 1: Trump administration, the Obama administration, and they keep going. Thanks
Speaker 1: so much, Chuck. That's Charles Warren. He's head of the
Speaker 1: environmental practice at Kramer Levin. Thanks for listening to the
Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the
Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com
Speaker 1: slash podcast. I'm June Grasso. This is Bloomberg