1 00:00:13,560 --> 00:00:17,280 Speaker 1: The Supreme Court was expected to rule this morning in 2 00:00:17,320 --> 00:00:22,040 Speaker 1: the case West Virginia versus EPA. They did not issue ruling. 3 00:00:22,360 --> 00:00:25,840 Speaker 1: They may issue one tomorrow. It might be Wednesday, or 4 00:00:25,920 --> 00:00:30,080 Speaker 1: maybe later in the week. Nobody knows. Complicating matters further, 5 00:00:30,360 --> 00:00:33,319 Speaker 1: given that it's been held to the end of this 6 00:00:33,520 --> 00:00:37,600 Speaker 1: current Supreme Court session, folks were speculating that it will 7 00:00:37,720 --> 00:00:42,640 Speaker 1: either be a remarkably terrible ruling or that they'll decide 8 00:00:42,680 --> 00:00:44,920 Speaker 1: that actually, they really shouldn't be ruling at all in 9 00:00:44,920 --> 00:00:48,880 Speaker 1: this case. I spoke with Richard Revez, a law professor 10 00:00:48,960 --> 00:00:51,960 Speaker 1: at NYU School of Law and director of the Institute 11 00:00:52,000 --> 00:00:57,000 Speaker 1: for Policy Integrity there about that option earlier this year, well. 12 00:00:56,880 --> 00:01:00,040 Speaker 2: Before the oral argument, I had the very strong and 13 00:01:00,640 --> 00:01:04,520 Speaker 2: that the right thing for the Court to do was 14 00:01:04,560 --> 00:01:09,400 Speaker 2: not to decide this case and to dismiss it. Supreme 15 00:01:09,440 --> 00:01:13,280 Speaker 2: cord as a mechanism for dismissing cases is improvidently, granted, 16 00:01:14,080 --> 00:01:17,160 Speaker 2: and it's not something it does frequently, but on average 17 00:01:17,160 --> 00:01:21,600 Speaker 2: it's been doing it about twice a year in recent years. 18 00:01:22,120 --> 00:01:26,160 Speaker 2: In this case seems like an excellent candidate for that 19 00:01:26,680 --> 00:01:32,479 Speaker 2: disposition because there is no regulation in place. The Clean 20 00:01:32,520 --> 00:01:39,199 Speaker 2: Power Plan is not in place, and the Affordable Clean 21 00:01:39,280 --> 00:01:41,040 Speaker 2: Energy Rule is not in place. A clean power plant, 22 00:01:41,080 --> 00:01:45,040 Speaker 2: of course, was the Abomba administration regulation of the greenhouse 23 00:01:45,040 --> 00:01:49,320 Speaker 2: gas emissions of existing power plans, and the Affordable Clean 24 00:01:49,400 --> 00:01:55,040 Speaker 2: Energy Rule was the Trump administration's toothless and potentially counterproductive replacement. 25 00:01:56,400 --> 00:01:59,120 Speaker 2: But neither are in place, and neither would go back 26 00:01:59,160 --> 00:02:03,000 Speaker 2: into effect no matter what the Court does. So essentially, 27 00:02:03,920 --> 00:02:06,480 Speaker 2: no matter what the Court does, there's not going to 28 00:02:06,480 --> 00:02:08,400 Speaker 2: be a clean power plant in place. There's not going 29 00:02:08,440 --> 00:02:11,079 Speaker 2: to be an Affordable Energy rule in place. So all 30 00:02:11,120 --> 00:02:16,680 Speaker 2: the court could do is give EPA advice. This is 31 00:02:16,880 --> 00:02:20,000 Speaker 2: known in this lingo as an advisory opinion on what 32 00:02:20,040 --> 00:02:23,360 Speaker 2: its future rule might look like. But the federal courts 33 00:02:23,360 --> 00:02:27,519 Speaker 2: don't have the authority to issue advisory opinions. That's been 34 00:02:27,600 --> 00:02:33,720 Speaker 2: clear since essentially the beginning of the Republic. So going 35 00:02:33,760 --> 00:02:36,160 Speaker 2: into the case, I was, you know, the strong sense 36 00:02:36,200 --> 00:02:38,280 Speaker 2: that this was the right thing for the court to. 37 00:02:38,320 --> 00:02:46,280 Speaker 3: Do, and what was your sense of the oral arguments 38 00:02:46,320 --> 00:02:48,480 Speaker 3: and where this seems to be headed. 39 00:02:49,160 --> 00:02:51,040 Speaker 2: Well, I mean, coming out of the case, I still 40 00:02:51,080 --> 00:02:53,480 Speaker 2: think that that is the right I think for the 41 00:02:53,520 --> 00:02:56,200 Speaker 2: Court to do, for exactly the same reason that I 42 00:02:56,320 --> 00:03:01,520 Speaker 2: thought about that before the argument. But I have to 43 00:03:01,720 --> 00:03:08,040 Speaker 2: say that while these issues were discussed, it's not clear 44 00:03:08,160 --> 00:03:15,360 Speaker 2: to me that five justices would find that approach compelling. 45 00:03:15,800 --> 00:03:18,239 Speaker 2: You never know, you can be surprised. You can't read 46 00:03:18,280 --> 00:03:21,280 Speaker 2: too much from the questions in oral argument, but it 47 00:03:21,320 --> 00:03:24,760 Speaker 2: didn't look like that way of thinking about the case 48 00:03:25,080 --> 00:03:28,679 Speaker 2: was foremost in the minds of five of the justices. 49 00:03:29,000 --> 00:03:33,440 Speaker 1: Attorney Jason Rylander from the Center for Biological Diversity expanded 50 00:03:33,480 --> 00:03:34,200 Speaker 1: on this idea. 51 00:03:34,680 --> 00:03:37,680 Speaker 4: Yeah, it's really interesting. Back when the Clean Power Plan 52 00:03:38,120 --> 00:03:42,680 Speaker 4: was originally developed by the Obama administration, industry groups sued 53 00:03:42,720 --> 00:03:47,080 Speaker 4: over it, and the litigation was ongoing, but the Supreme 54 00:03:47,080 --> 00:03:51,080 Speaker 4: Court reached out and issued an unprecedented stay without even 55 00:03:51,120 --> 00:03:54,600 Speaker 4: allowing the DC Circuit to complete oral arguments or issue 56 00:03:54,680 --> 00:03:58,760 Speaker 4: or ruling. So, for whatever reason, the contours of EPA's 57 00:03:58,760 --> 00:04:02,160 Speaker 4: authority under the Clean Air Act seemed to be of 58 00:04:02,280 --> 00:04:05,680 Speaker 4: interest to this court. And here again they've taken a 59 00:04:05,720 --> 00:04:08,960 Speaker 4: case that they really don't have to take because the 60 00:04:08,960 --> 00:04:12,480 Speaker 4: Biden administration has pledged that it's going to develop its 61 00:04:12,640 --> 00:04:17,400 Speaker 4: own rules for regulating stationary power plant missions and that 62 00:04:17,400 --> 00:04:20,000 Speaker 4: those rules may not look anything like either the Clean 63 00:04:20,040 --> 00:04:22,560 Speaker 4: Power Plan or the Affordable Clean Energy Plan that the 64 00:04:22,560 --> 00:04:25,920 Speaker 4: Trump administration developed, which is also not in effect. So 65 00:04:25,960 --> 00:04:28,280 Speaker 4: the real concern here is that this Court is basically 66 00:04:28,360 --> 00:04:32,839 Speaker 4: issuing an advisory opinion about EPA's authority in the absence 67 00:04:32,880 --> 00:04:35,560 Speaker 4: of an actual rule in front of it for it 68 00:04:35,600 --> 00:04:38,120 Speaker 4: to review. Court has already ruled in a couple of 69 00:04:38,160 --> 00:04:43,200 Speaker 4: different cases that EPA has authority to regulate greenhouse gases. 70 00:04:43,880 --> 00:04:47,440 Speaker 4: They said so first in Massachusetts vi. EPA. They said 71 00:04:47,440 --> 00:04:50,920 Speaker 4: so in AP versus Connecticut case, and they also said 72 00:04:51,000 --> 00:04:54,320 Speaker 4: so in another case that came a couple years later. 73 00:04:55,080 --> 00:04:57,960 Speaker 4: And so you know, to the extent that the Court 74 00:04:58,000 --> 00:05:00,280 Speaker 4: wants to get into these sort of major questions about 75 00:05:00,279 --> 00:05:03,880 Speaker 4: what Congress has spoken clearly to in terms of authority 76 00:05:03,920 --> 00:05:07,720 Speaker 4: for agencies to regulate, that big question has already been addressed. 77 00:05:08,000 --> 00:05:09,960 Speaker 4: What we're really getting into now is sort of the 78 00:05:10,000 --> 00:05:15,280 Speaker 4: weeds of whether Section one eleven allows EPA to create 79 00:05:15,800 --> 00:05:20,520 Speaker 4: a best system of emissions reduction that would lead to 80 00:05:20,560 --> 00:05:24,880 Speaker 4: the most effective and efficient reductions in greenhouse gas pollution. 81 00:05:25,560 --> 00:05:28,359 Speaker 4: And that's the kind of question that is usually left 82 00:05:28,400 --> 00:05:29,600 Speaker 4: to agency discretion. 83 00:05:30,320 --> 00:05:33,320 Speaker 1: Like Revez explained, there is precedent for the Court to 84 00:05:33,360 --> 00:05:36,640 Speaker 1: opt not to rule in cases where it really makes 85 00:05:36,720 --> 00:05:39,719 Speaker 1: no sense for it too. But given all the other 86 00:05:40,160 --> 00:05:44,559 Speaker 1: norms these justices are breaking, it's hard to believe they'll 87 00:05:44,600 --> 00:05:48,800 Speaker 1: go that route, especially given that Justices Kavanaugh and Barrett 88 00:05:48,960 --> 00:05:53,039 Speaker 1: consistently brought up something called the major questions doctrine during 89 00:05:53,160 --> 00:05:55,599 Speaker 1: oral arguments. Here's Rylander again. 90 00:05:55,920 --> 00:05:59,719 Speaker 4: I think, to put it simply, there's clearly an anti 91 00:05:59,760 --> 00:06:03,800 Speaker 4: rede regulatory appetite among certain justices of this Court, and 92 00:06:04,200 --> 00:06:06,960 Speaker 4: we've seen that in a number of different cases dealing 93 00:06:07,000 --> 00:06:10,640 Speaker 4: with the extent of agency authority. And this idea that 94 00:06:10,680 --> 00:06:13,880 Speaker 4: they can use this major Questions doctrine to kind of 95 00:06:13,920 --> 00:06:18,400 Speaker 4: look at a regulation and decide in the abstract whether 96 00:06:18,520 --> 00:06:22,119 Speaker 4: Congress granted authority to address that issue without even really 97 00:06:22,160 --> 00:06:27,160 Speaker 4: looking at an actual rule is bizarre. It is an 98 00:06:27,200 --> 00:06:29,880 Speaker 4: expansion of judicial power in a way that is really 99 00:06:29,920 --> 00:06:33,560 Speaker 4: pretty inappropriate. And we've seen commentators kind of across the 100 00:06:33,560 --> 00:06:38,239 Speaker 4: political spectrum warning against this expanded use of the Major 101 00:06:38,320 --> 00:06:41,800 Speaker 4: Questions doctrine to attack agency rulemaking, but that seems to 102 00:06:41,839 --> 00:06:44,160 Speaker 4: be where a few of the justices want to go. 103 00:06:44,920 --> 00:06:47,760 Speaker 1: This is part of the general right wing project to 104 00:06:47,880 --> 00:06:52,200 Speaker 1: attack the so called administrative state. If you spend any 105 00:06:52,240 --> 00:06:57,680 Speaker 1: time at all online, you might hear conservatives say things like, well, actually, 106 00:06:57,960 --> 00:07:03,240 Speaker 1: regulatory agencies are unconstitutional. In other words, the Constitution doesn't 107 00:07:03,279 --> 00:07:07,400 Speaker 1: allow for Congress to hand over its powers to agencies. 108 00:07:08,240 --> 00:07:11,880 Speaker 1: The argument for agencies, of course, has historically been that 109 00:07:12,280 --> 00:07:15,880 Speaker 1: legislators can't possibly be experts on everything, and it makes 110 00:07:15,920 --> 00:07:17,680 Speaker 1: a certain amount of sense to keep the nuts and 111 00:07:17,720 --> 00:07:21,960 Speaker 1: bolts of applying legislation free of the sort of grandstanding 112 00:07:22,080 --> 00:07:26,640 Speaker 1: and influence peddling that has been a hallmark of American politics. 113 00:07:26,920 --> 00:07:29,960 Speaker 1: But for many conservatives, not only is there no need 114 00:07:30,080 --> 00:07:34,239 Speaker 1: for the EPA to develop an emissions reduction plan absent 115 00:07:34,360 --> 00:07:38,280 Speaker 1: explicit instructions to do so from Congress, but also there's 116 00:07:38,320 --> 00:07:41,840 Speaker 1: really no need for an EPA at all. You might 117 00:07:41,880 --> 00:07:44,120 Speaker 1: recall an episode we put out earlier this year with 118 00:07:44,240 --> 00:07:47,880 Speaker 1: Lisa Greeves. She's a former Senate investigator who went on 119 00:07:47,920 --> 00:07:50,920 Speaker 1: to run the Center for Media and Democracy for several 120 00:07:51,000 --> 00:07:55,520 Speaker 1: years before starting her own research firm, True North. Lisa 121 00:07:55,560 --> 00:07:58,800 Speaker 1: has been tracking the right wing project to take over 122 00:07:58,960 --> 00:08:03,960 Speaker 1: the judiciary almost since its inception. Here she is explaining 123 00:08:04,120 --> 00:08:07,760 Speaker 1: some of these structural changes that cases like West Virginia 124 00:08:07,840 --> 00:08:10,440 Speaker 1: versus EPA are driving towards Yeah. 125 00:08:10,440 --> 00:08:12,440 Speaker 5: I mean, they've declared, you know, this war on the 126 00:08:12,440 --> 00:08:15,960 Speaker 5: so called administrative state. Obviously there's roots of that in Reagan, 127 00:08:16,120 --> 00:08:18,480 Speaker 5: and some of the lawyers who were active then, who 128 00:08:18,600 --> 00:08:22,480 Speaker 5: became judges, and some of the people who are in 129 00:08:22,480 --> 00:08:25,920 Speaker 5: the judiciary have been you know, in my view, very partisan, 130 00:08:26,640 --> 00:08:30,640 Speaker 5: very right wing, you know, sort of politicians and rogues 131 00:08:30,680 --> 00:08:34,320 Speaker 5: who are attempting to restructure the modern American state through 132 00:08:34,440 --> 00:08:40,400 Speaker 5: judicial rulings. But you know, eighty percent of the of 133 00:08:40,480 --> 00:08:43,160 Speaker 5: the Supreme Court has been appointed by Republicans, and they 134 00:08:43,200 --> 00:08:49,920 Speaker 5: just haven't been doctrinaire enough for these you know, very 135 00:08:49,960 --> 00:08:52,040 Speaker 5: elite reactionaries like Leonard Leo. 136 00:08:52,400 --> 00:08:55,960 Speaker 1: Leonard Leo of course, ran the Federalist Society for decades. 137 00:08:56,120 --> 00:08:59,120 Speaker 1: It's a group of conservative lawyers and justices who have 138 00:08:59,240 --> 00:09:02,560 Speaker 1: been integral to the project to use the judicial system 139 00:09:02,679 --> 00:09:07,800 Speaker 1: to further a conservative agenda. Leo himself hand picked many 140 00:09:07,880 --> 00:09:11,679 Speaker 1: of the justices on the Supreme Court bench today. Lisa 141 00:09:11,720 --> 00:09:14,400 Speaker 1: Graves helped to make the general public more aware of 142 00:09:14,440 --> 00:09:18,120 Speaker 1: the Federalist Society's role in picking justices when they began 143 00:09:18,200 --> 00:09:22,000 Speaker 1: telling Trump who to nominate. Leo and the Federalist Society 144 00:09:22,080 --> 00:09:25,959 Speaker 1: are also deeply entwined with another key component of the 145 00:09:26,040 --> 00:09:31,640 Speaker 1: right wing legal machine, RAGA, the Republican Attorney's General Association. 146 00:09:32,400 --> 00:09:35,440 Speaker 1: That organization was created as a reaction to the tobacco 147 00:09:35,520 --> 00:09:39,280 Speaker 1: litigation in the nineteen nineties, which was kicked off by 148 00:09:39,280 --> 00:09:44,360 Speaker 1: a Democratic attorneys general. At the time, Democrats outnumbered Republicans 149 00:09:44,400 --> 00:09:48,160 Speaker 1: in state attorneys general offices almost two to one. The 150 00:09:48,160 --> 00:09:53,520 Speaker 1: Republican attorneys general in Alabama, South Carolina, and Texas decided 151 00:09:53,559 --> 00:09:56,400 Speaker 1: to form a group that would dedicate itself to getting 152 00:09:56,400 --> 00:09:59,960 Speaker 1: more Republican attorneys general elected and working together to advance 153 00:10:00,040 --> 00:10:04,199 Speaker 1: it's a conservative legal agenda. The Texas Attorney General at 154 00:10:04,240 --> 00:10:08,800 Speaker 1: that time was now Senator John Cornyn. His second in 155 00:10:08,840 --> 00:10:12,800 Speaker 1: command was Ted Cruz, two guys who come up over 156 00:10:12,920 --> 00:10:15,800 Speaker 1: and over again in the context of these big Supreme 157 00:10:15,880 --> 00:10:19,440 Speaker 1: Court cases. At any rate, in its first decade, RAGA 158 00:10:19,600 --> 00:10:23,960 Speaker 1: was just focused on winning elections. Then in twenty. 159 00:10:23,679 --> 00:10:28,200 Speaker 6: Ten, mister Olson, are you taking the position that there 160 00:10:28,280 --> 00:10:33,040 Speaker 6: is no difference in the First Amendment rights of an individual? 161 00:10:34,120 --> 00:10:39,199 Speaker 6: A corporation, after all, is not endowed by its creator 162 00:10:39,400 --> 00:10:46,840 Speaker 6: with inalienable rights. So is there any distinction that Congress 163 00:10:46,880 --> 00:10:54,239 Speaker 6: could draw between corporations and natural human beings for purposes 164 00:10:54,280 --> 00:10:55,520 Speaker 6: of campaign finance. 165 00:10:55,720 --> 00:10:58,480 Speaker 7: What the Court has said in the First Amendment context 166 00:10:59,080 --> 00:11:03,280 Speaker 7: New York Times US is Sullivan, Gross Chain versus Associated Press, 167 00:11:03,679 --> 00:11:07,479 Speaker 7: and over and over again as a corporations are persons 168 00:11:08,000 --> 00:11:10,120 Speaker 7: entitled to protection under the First Amendment. 169 00:11:10,640 --> 00:11:15,199 Speaker 1: That was the late Justice Ruth Bader Ginsberg questioning Attorney 170 00:11:15,200 --> 00:11:19,920 Speaker 1: Ted Olsen during the landmark Citizens United case in which 171 00:11:19,960 --> 00:11:23,120 Speaker 1: the Court ultimately ruled that corporations have the same free 172 00:11:23,120 --> 00:11:27,440 Speaker 1: speech protections as individuals and that money, in this case, 173 00:11:27,559 --> 00:11:32,840 Speaker 1: money spent on a movie length political attack ad is speech. 174 00:11:33,840 --> 00:11:37,480 Speaker 1: That ruling opened up a flood of dark money into politics, 175 00:11:38,000 --> 00:11:41,439 Speaker 1: billions of dollars coming from who knows where, to further 176 00:11:41,720 --> 00:11:46,120 Speaker 1: who knows what agenda, and suddenly RAGA became a key 177 00:11:46,240 --> 00:11:49,000 Speaker 1: political tool. Here's Graves again. 178 00:11:49,720 --> 00:11:52,640 Speaker 5: Something has happened over the last twenty years. And I 179 00:11:52,720 --> 00:11:54,360 Speaker 5: had looked at this back when I was working on 180 00:11:54,400 --> 00:11:57,720 Speaker 5: the Senate Judiciary Committee. In terms of this, the rise 181 00:11:57,760 --> 00:12:01,199 Speaker 5: of RAGA, the Republican Attorney's General Association in where we 182 00:12:01,320 --> 00:12:03,520 Speaker 5: know that it's a pay to play operation, we know 183 00:12:03,679 --> 00:12:08,240 Speaker 5: that it has had enormously distorting effect on US law. 184 00:12:09,240 --> 00:12:13,040 Speaker 5: It provides a mechanism for corporations to pass money through 185 00:12:13,400 --> 00:12:17,560 Speaker 5: to help attorneys general in ways that they would not 186 00:12:18,120 --> 00:12:21,880 Speaker 5: be able to individually solicit for their own campaigns given 187 00:12:21,920 --> 00:12:26,200 Speaker 5: their role, their regulatory role over those very industries. And 188 00:12:26,240 --> 00:12:30,240 Speaker 5: that's been going on since RAGA was created, back more 189 00:12:30,280 --> 00:12:33,560 Speaker 5: than twenty years ago now, and it has accelerated under 190 00:12:33,600 --> 00:12:36,520 Speaker 5: some of the attorneys general who have led it, like 191 00:12:36,559 --> 00:12:39,439 Speaker 5: Scott Crewe was who was, you know, in my view, 192 00:12:39,840 --> 00:12:46,040 Speaker 5: another corrupt individual, someone who was lacks on ethical rules 193 00:12:46,080 --> 00:12:48,600 Speaker 5: to say the least, and who was willing to do 194 00:12:48,679 --> 00:12:52,920 Speaker 5: the bidding of the oil industry in attacking climate legislation 195 00:12:53,240 --> 00:12:57,120 Speaker 5: and climate rules, even the very modest CPP the Clean 196 00:12:57,160 --> 00:13:02,240 Speaker 5: Power Plan rules, to advance the interests of the funders 197 00:13:02,760 --> 00:13:03,400 Speaker 5: of RAGA. 198 00:13:07,200 --> 00:13:10,200 Speaker 1: Here's where we come back to West Virginia versus e PA. 199 00:13:10,640 --> 00:13:15,600 Speaker 1: It's a RAGA case, so might even say the RAGA case. 200 00:13:15,920 --> 00:13:18,800 Speaker 1: It was the jewel of Scott Prewitt's reign as the 201 00:13:18,840 --> 00:13:21,800 Speaker 1: head of RAGA. You might remember that Prewitt went on 202 00:13:22,040 --> 00:13:26,120 Speaker 1: from there to run the EPA, an agency he very 203 00:13:26,200 --> 00:13:27,600 Speaker 1: much wanted to get rid. 204 00:13:27,440 --> 00:13:33,640 Speaker 5: Of these Republican attorneys general behave in general, they are 205 00:13:33,880 --> 00:13:37,160 Speaker 5: operating most often we've seen at the behest of the 206 00:13:37,160 --> 00:13:42,000 Speaker 5: industries that they're soliciting funds for to fund RAGA. That's 207 00:13:42,080 --> 00:13:45,679 Speaker 5: interesting beyond RAGA is funding the corporate funders of RAGA, 208 00:13:46,440 --> 00:13:49,679 Speaker 5: we know that it now is receiving a substantial amount 209 00:13:49,720 --> 00:13:55,439 Speaker 5: of money from one of the emerging big dark money operations, 210 00:13:55,480 --> 00:13:59,959 Speaker 5: which is Leonard Leo's operation, which was funded, you know, 211 00:14:00,720 --> 00:14:07,000 Speaker 5: funded through a group that's now defunct that has subsequently 212 00:14:07,160 --> 00:14:09,640 Speaker 5: you know, basically been rebranded or renamed as Leo has 213 00:14:09,880 --> 00:14:13,880 Speaker 5: has re uh launched his his operations after it was 214 00:14:13,920 --> 00:14:19,280 Speaker 5: exposed by The Washington Post last year. So RAGA now 215 00:14:19,760 --> 00:14:24,200 Speaker 5: is not just a recipient of of donations from big 216 00:14:24,320 --> 00:14:29,680 Speaker 5: oil and big huge corporations, but it's also a major 217 00:14:29,720 --> 00:14:34,120 Speaker 5: recipient of funds in which the source is completely unknown, 218 00:14:34,400 --> 00:14:38,600 Speaker 5: and they've particularly targeted states in state AG's offices to 219 00:14:38,680 --> 00:14:44,240 Speaker 5: advance Leonard's longer term agenda, which he described to the 220 00:14:44,240 --> 00:14:47,680 Speaker 5: Council of National Policy, and this was documented in that 221 00:14:47,800 --> 00:14:50,680 Speaker 5: Washington Post story, but he described in that in a 222 00:14:50,720 --> 00:14:53,920 Speaker 5: speech to c n P last year that his that 223 00:14:54,080 --> 00:14:56,880 Speaker 5: America stands at the precipice of what he called the 224 00:14:56,960 --> 00:15:00,640 Speaker 5: revival of what he described as the quote structural constitution, 225 00:15:01,800 --> 00:15:06,600 Speaker 5: and he told the CNP audience that no one alive 226 00:15:06,680 --> 00:15:09,040 Speaker 5: in that room had seen the type of legal revolution 227 00:15:09,160 --> 00:15:11,400 Speaker 5: that America was about to see based on the appointments 228 00:15:11,400 --> 00:15:15,480 Speaker 5: to the Supreme Court and other courts to revive this 229 00:15:15,560 --> 00:15:18,800 Speaker 5: so called structural constitution to the law as it existed 230 00:15:19,280 --> 00:15:25,680 Speaker 5: pre New Deal. And you know, that affects a whole 231 00:15:26,040 --> 00:15:29,000 Speaker 5: host of laws. It affects civil rights laws, that it 232 00:15:29,240 --> 00:15:33,440 Speaker 5: will affect labor laws and labor rights, environmental regulation and more. 233 00:15:33,960 --> 00:15:38,400 Speaker 5: And it's an attempt, in my view, to really limit 234 00:15:38,440 --> 00:15:41,760 Speaker 5: the ability of Congress to pass laws, to limit the 235 00:15:41,760 --> 00:15:47,160 Speaker 5: ability of agencies to regulate corporations, and to you know, 236 00:15:47,200 --> 00:15:53,760 Speaker 5: sort of change the whole modern structure of government basically 237 00:15:53,840 --> 00:15:56,640 Speaker 5: in terms of the administrative agencies, but also the rights 238 00:15:56,640 --> 00:16:00,720 Speaker 5: of citizens and the relationships between the United States as 239 00:16:00,800 --> 00:16:03,120 Speaker 5: a government and other governments. 240 00:16:03,760 --> 00:16:07,280 Speaker 1: That is the master plan that West Virginia versus EPA 241 00:16:07,560 --> 00:16:08,880 Speaker 1: is just one part of. 242 00:16:09,800 --> 00:16:09,840 Speaker 6: It. 243 00:16:09,880 --> 00:16:15,160 Speaker 5: Would be an extreme, radical, reactionary agenda to change our 244 00:16:15,320 --> 00:16:19,000 Speaker 5: rights and limit our powers in our democracy through our 245 00:16:19,000 --> 00:16:23,600 Speaker 5: representatives in ways that serve a very elite agenda, the 246 00:16:23,680 --> 00:16:26,880 Speaker 5: agenda of the people who fund Leonard Leo and Leo's 247 00:16:26,880 --> 00:16:30,720 Speaker 5: operations and fund the RAGA, the Republican Coturney General's Association, 248 00:16:31,400 --> 00:16:34,840 Speaker 5: and have been really attempting to work a legal revolution 249 00:16:34,960 --> 00:16:37,920 Speaker 5: through offices that we would otherwise consider to be independent. 250 00:16:38,440 --> 00:16:40,600 Speaker 5: It would be nice to have Attorneys general of states 251 00:16:40,640 --> 00:16:45,720 Speaker 5: who were not so captive to advancing the interests of 252 00:16:45,800 --> 00:16:50,120 Speaker 5: Charles Koch, but unfortunately we are in an era in 253 00:16:50,120 --> 00:16:53,120 Speaker 5: which those interests have been dominating. 254 00:16:53,520 --> 00:16:57,720 Speaker 1: The EPA is, of course not the only regulatory agency 255 00:16:57,800 --> 00:17:01,120 Speaker 1: that these interests would like to see peer, but we 256 00:17:01,160 --> 00:17:04,240 Speaker 1: don't have to just stand by and watch it happen. 257 00:17:04,680 --> 00:17:07,240 Speaker 1: I'm going to spend the second half of this episode 258 00:17:07,280 --> 00:17:10,399 Speaker 1: talking about what might be up ahead and some of 259 00:17:10,440 --> 00:17:13,479 Speaker 1: the tools still available to us even if all of 260 00:17:13,520 --> 00:17:17,359 Speaker 1: the worst case scenario predictions about West Virginia versus EPA 261 00:17:17,840 --> 00:17:27,639 Speaker 1: come true this week. It's coming up after this quick break. Okay, 262 00:17:27,760 --> 00:17:30,880 Speaker 1: So when it comes to West Virginia versus EPA, first, 263 00:17:31,119 --> 00:17:33,479 Speaker 1: I think it's important to be clear about what is 264 00:17:33,560 --> 00:17:38,080 Speaker 1: and isn't actually being argued here, because even with this 265 00:17:38,160 --> 00:17:41,080 Speaker 1: Supreme Court, they can't just rule on stuff that's not 266 00:17:41,160 --> 00:17:45,080 Speaker 1: even vaguely mentioned in the case. I've been seeing a 267 00:17:45,080 --> 00:17:48,600 Speaker 1: lot of overstatements about what's at stake here, everything from 268 00:17:48,680 --> 00:17:52,080 Speaker 1: the Court making it illegal to regulate CO two to 269 00:17:52,119 --> 00:17:55,719 Speaker 1: it shutting the EPA down altogether. And look, I'm not 270 00:17:55,800 --> 00:17:58,720 Speaker 1: saying that either or both of those is out of 271 00:17:58,760 --> 00:18:01,840 Speaker 1: the realm of possibility. At some point. There're certainly targets. 272 00:18:01,920 --> 00:18:04,000 Speaker 1: They just wouldn't happen as a result of this case. 273 00:18:04,480 --> 00:18:07,280 Speaker 1: What the justices can do in this particular case is 274 00:18:07,320 --> 00:18:10,480 Speaker 1: say that under the Clean Air Act, the EPA does 275 00:18:10,520 --> 00:18:14,880 Speaker 1: not have the authority to create an emissions reduction system 276 00:18:15,200 --> 00:18:20,000 Speaker 1: or plan or policies that would in effect overturn the 277 00:18:20,000 --> 00:18:24,320 Speaker 1: precedent set by Massachusetts versus EPA. That was the case 278 00:18:24,359 --> 00:18:26,280 Speaker 1: a few years ago when the Court said the EPA 279 00:18:26,440 --> 00:18:30,919 Speaker 1: did have the authority to regulate greenhouse gases. Here's Jason 280 00:18:31,040 --> 00:18:33,080 Speaker 1: Rylander again to explain. 281 00:18:33,280 --> 00:18:35,520 Speaker 4: I think the worst case scenario here is that they 282 00:18:35,600 --> 00:18:37,920 Speaker 4: have an EPA's authority in a way that is going 283 00:18:37,920 --> 00:18:39,879 Speaker 4: to make it more difficult for the Biden administration and 284 00:18:39,920 --> 00:18:45,680 Speaker 4: future administrations to regulate effectively under Section one eleven of 285 00:18:45,720 --> 00:18:48,560 Speaker 4: the Clean Air Act. The good news is Clean Air 286 00:18:48,560 --> 00:18:50,280 Speaker 4: Act is broader than that, and there are a lot 287 00:18:50,359 --> 00:18:53,240 Speaker 4: of other ways that we can get at greenhouse gas pollutions. 288 00:18:53,560 --> 00:18:56,840 Speaker 4: And we also know that greenhouse gas pollutions emerge from 289 00:18:56,880 --> 00:18:59,040 Speaker 4: things other than stationary coal and. 290 00:19:01,040 --> 00:19:01,719 Speaker 8: Power plants. 291 00:19:02,359 --> 00:19:08,280 Speaker 4: In fact, the market alone has already produced greater emissions 292 00:19:08,359 --> 00:19:12,200 Speaker 4: reductions than had been predicted if the clean power plant 293 00:19:12,200 --> 00:19:13,760 Speaker 4: had gone into effect. 294 00:19:14,119 --> 00:19:17,600 Speaker 1: One way to get at greenhouse gases, especially if your 295 00:19:17,640 --> 00:19:21,600 Speaker 1: top concern is CO two, is through an authority. The 296 00:19:21,640 --> 00:19:26,240 Speaker 1: EPA already very much has, which is regulating air pollution 297 00:19:26,480 --> 00:19:31,800 Speaker 1: under the Clean Air Act more broadly, specifically particulate matter. 298 00:19:32,240 --> 00:19:37,560 Speaker 1: So this is the stuff that comes from combusting fossil fuels, 299 00:19:37,920 --> 00:19:40,679 Speaker 1: it's what comes out of exhaust pipes, it's what is 300 00:19:40,800 --> 00:19:43,959 Speaker 1: released at factories, power plants, all of that stuff, and 301 00:19:44,080 --> 00:19:47,600 Speaker 1: the EPA already regulates that and has already moved to 302 00:19:47,680 --> 00:19:51,760 Speaker 1: tighten those regulations. Another way to get at greenhouse gases 303 00:19:51,960 --> 00:19:54,600 Speaker 1: is an approach we talked about in a recent episode 304 00:19:55,080 --> 00:19:58,919 Speaker 1: invoking the Toxic Substances Control Act or TOSCA. 305 00:19:59,280 --> 00:20:01,760 Speaker 9: EPA aware of all of these things, and they're worried 306 00:20:01,800 --> 00:20:05,280 Speaker 9: about it, and all the staff is running around wishing 307 00:20:05,320 --> 00:20:07,720 Speaker 9: that they could do something. The problem is they felt 308 00:20:07,720 --> 00:20:10,840 Speaker 9: that they didn't have the authority and that none of 309 00:20:10,840 --> 00:20:13,639 Speaker 9: the laws gave the authority. In fact, the authority has 310 00:20:13,640 --> 00:20:16,800 Speaker 9: been hiding in plain sight the entire time under the 311 00:20:16,800 --> 00:20:19,480 Speaker 9: Toxic Substances Act. But there was sort of a perceived 312 00:20:19,520 --> 00:20:24,399 Speaker 9: wisdom that the Toxic Substances Control Act didn't work based 313 00:20:24,440 --> 00:20:27,639 Speaker 9: on how the Agency got hammered over asbestos. And it 314 00:20:27,680 --> 00:20:29,760 Speaker 9: was actually the agency's full because they didn't do their 315 00:20:29,800 --> 00:20:32,119 Speaker 9: due diligence, but they thought they had a slam dunk there. 316 00:20:32,480 --> 00:20:34,640 Speaker 9: It didn't work. They kind of threw up their hands 317 00:20:34,680 --> 00:20:36,760 Speaker 9: and say, we have to work under the Clean Air Act, 318 00:20:36,760 --> 00:20:38,120 Speaker 9: which is an abysmal law. 319 00:20:39,440 --> 00:20:43,679 Speaker 1: That is former EPA scientist Don Viviani, speaking at a 320 00:20:43,720 --> 00:20:48,320 Speaker 1: press conference earlier this month, he says climate advocates have 321 00:20:48,440 --> 00:20:52,280 Speaker 1: been sleeping on TOSCA, which provides a much stronger basis 322 00:20:52,359 --> 00:20:55,520 Speaker 1: for the EPA's authority to regulate greenhouse gases. 323 00:20:55,960 --> 00:20:58,160 Speaker 9: This sort of problem is exactly the thing the TUSK 324 00:20:58,359 --> 00:21:02,080 Speaker 9: was designed for. Congress knew that there were problems out 325 00:21:02,119 --> 00:21:07,360 Speaker 9: there that were multimedia multiprogram that a single media Act 326 00:21:07,560 --> 00:21:12,399 Speaker 9: couldn't handle, and that we needed something more expansive. It 327 00:21:12,520 --> 00:21:14,600 Speaker 9: was designed to take care of things that the other 328 00:21:14,680 --> 00:21:18,080 Speaker 9: laws weren't properly taken care of, and if you look 329 00:21:18,119 --> 00:21:20,600 Speaker 9: back at the history of climate it's quite clear that 330 00:21:20,760 --> 00:21:22,679 Speaker 9: none of the other laws are taking care of this. 331 00:21:23,160 --> 00:21:25,800 Speaker 9: So this is exactly what TOSCO was designed to do. 332 00:21:26,200 --> 00:21:28,679 Speaker 1: Viviani has signed on to a petition filed with the 333 00:21:28,720 --> 00:21:32,720 Speaker 1: EPA requesting that the agency made a determination under TOSCA 334 00:21:32,720 --> 00:21:36,080 Speaker 1: that greenhouse gas emissions pose a risk to human health 335 00:21:36,119 --> 00:21:40,560 Speaker 1: and the environment, and then regulated as such. Other petitioners 336 00:21:40,600 --> 00:21:45,440 Speaker 1: include climate scientists doctor James Hanson and climate accountability expert 337 00:21:45,520 --> 00:21:49,600 Speaker 1: Richard Heaty, who authored the themed Carbon Major's Report which 338 00:21:49,640 --> 00:21:53,800 Speaker 1: pinpointed the seventy companies most responsible for climate change. 339 00:21:54,400 --> 00:21:57,159 Speaker 10: OSCAR actually was used in nineteen seventy eight for just 340 00:21:57,240 --> 00:22:03,040 Speaker 10: this purpose with respect to CFCs on the ground in 341 00:22:03,160 --> 00:22:11,320 Speaker 10: the rule that CFCs were endangering the ozone layer and 342 00:22:12,119 --> 00:22:17,640 Speaker 10: presented a serious risk with respect to global warming. CFC's 343 00:22:17,840 --> 00:22:22,320 Speaker 10: are also a gas and therefore you know there actually 344 00:22:22,400 --> 00:22:28,879 Speaker 10: is strong precedent in EPA's own actions and utilizing this 345 00:22:29,000 --> 00:22:32,919 Speaker 10: statute to kickstart in the effort to get rid of 346 00:22:32,960 --> 00:22:38,480 Speaker 10: that potent pollutant that has very strong greenhouse gats forcing 347 00:22:38,760 --> 00:22:39,480 Speaker 10: effect as. 348 00:22:39,320 --> 00:22:43,080 Speaker 1: Well, it also has deep benefit of clear language around 349 00:22:43,119 --> 00:22:48,160 Speaker 1: the EPA's authority, language that was strengthened with bipartisan support 350 00:22:48,320 --> 00:22:49,520 Speaker 1: in twenty sixteen. 351 00:22:50,000 --> 00:22:54,359 Speaker 9: They just reauthorized the Act in twenty sixteen was a 352 00:22:54,400 --> 00:23:00,760 Speaker 9: bipartisan a reauthorization. So clearly this is the the language 353 00:23:01,080 --> 00:23:04,600 Speaker 9: that the TOSK is supposed to deal with. Unreasonable risk 354 00:23:05,200 --> 00:23:08,560 Speaker 9: is recent and it was a bipartisan It was a 355 00:23:08,600 --> 00:23:09,960 Speaker 9: bipartisan passage. 356 00:23:10,280 --> 00:23:13,000 Speaker 1: Doctor James Hansen says he hopes this effort will give 357 00:23:13,040 --> 00:23:16,320 Speaker 1: the agency the authority to act before it's too late. 358 00:23:17,480 --> 00:23:23,520 Speaker 11: We're so far off and that just hasn't hasn't sunk in. 359 00:23:23,840 --> 00:23:31,920 Speaker 11: And you know, even though we have international organization, the 360 00:23:31,960 --> 00:23:36,280 Speaker 11: Framework Convention on Climate Change and the conferences of the parties, 361 00:23:38,160 --> 00:23:41,200 Speaker 11: some of the stuff that they're coming out with is 362 00:23:42,160 --> 00:23:50,800 Speaker 11: pretty nonsensical. The last cop the head said, well, we've 363 00:23:50,880 --> 00:23:57,200 Speaker 11: kept within the possibility to stay under one point five 364 00:23:57,280 --> 00:24:04,280 Speaker 11: degrees warming. That's absolute bullshit. There's too much inertia in 365 00:24:04,320 --> 00:24:11,520 Speaker 11: the energy system and in the warming that's in the pipeline. 366 00:24:12,480 --> 00:24:17,000 Speaker 11: Just because the planet is now out of balance by 367 00:24:17,560 --> 00:24:23,040 Speaker 11: an enormous amount doesn't sound like much a little more 368 00:24:23,080 --> 00:24:26,320 Speaker 11: than a one walt per meter square, but that contains 369 00:24:26,400 --> 00:24:30,680 Speaker 11: more than one degree celsius additional warming, and we're already 370 00:24:30,680 --> 00:24:38,200 Speaker 11: at one point too. So yeah, we've passed the point 371 00:24:38,960 --> 00:24:43,080 Speaker 11: of being dangerous. But we can still deal with the 372 00:24:43,200 --> 00:24:51,400 Speaker 11: situation if we begin to make fossil fuels pay their 373 00:24:51,440 --> 00:24:52,600 Speaker 11: cost to society. 374 00:24:53,840 --> 00:24:57,480 Speaker 1: Multiple climate cases all over the world more than eighteen 375 00:24:57,600 --> 00:25:01,320 Speaker 1: hundred and in fact A trying to do that as well, 376 00:25:01,440 --> 00:25:05,520 Speaker 1: all of which will continue irrespective of the outcome of 377 00:25:05,600 --> 00:25:10,639 Speaker 1: West Virginia versus EPA. Dan Gilburn, Executive Director and General 378 00:25:10,680 --> 00:25:14,480 Speaker 1: Counsel for the Climate Protection and Restoration Initiative, is the 379 00:25:14,560 --> 00:25:18,960 Speaker 1: lawyer spiritheading the TOSCA EPA petition, and he says the 380 00:25:19,000 --> 00:25:23,200 Speaker 1: outcome of West Virginia Versus EPA shouldn't have any impact 381 00:25:23,359 --> 00:25:25,000 Speaker 1: on that effort at all. 382 00:25:25,359 --> 00:25:27,560 Speaker 4: One eleven D of the Clean Air Act has nothing 383 00:25:27,600 --> 00:25:32,680 Speaker 4: to do with our petition. Under the Toxic Substances Control Act. 384 00:25:33,480 --> 00:25:38,040 Speaker 4: One eleven D of the Clean Air Act confers authority 385 00:25:38,040 --> 00:25:46,280 Speaker 4: on EPA to compel emissions controls from existing power plants, 386 00:25:47,280 --> 00:25:51,840 Speaker 4: and there is a specific question as to whether the 387 00:25:51,920 --> 00:25:58,680 Speaker 4: Obama EPA, in fashioning the now dormant Clean Power Plan 388 00:25:59,720 --> 00:26:04,919 Speaker 4: over stepped its bounds and read into that provision of 389 00:26:05,000 --> 00:26:11,080 Speaker 4: law authority to restrict emissions outside the fence line of 390 00:26:11,160 --> 00:26:14,560 Speaker 4: power plants rather than just inside the fence line of 391 00:26:14,600 --> 00:26:21,240 Speaker 4: power plants. So that's a specific, fairly narrow technical issue. 392 00:26:21,520 --> 00:26:25,320 Speaker 4: Those including West Virginia and a number of other conservative 393 00:26:25,359 --> 00:26:29,480 Speaker 4: states and a portion of the fossil fuel industry are 394 00:26:29,720 --> 00:26:35,040 Speaker 4: urging the Supreme Court in that case to rule much 395 00:26:35,119 --> 00:26:42,400 Speaker 4: more broadly, to say that without express language in this statute, 396 00:26:43,280 --> 00:26:51,359 Speaker 4: no federal agency can really do much to restrict economic 397 00:26:51,440 --> 00:26:57,320 Speaker 4: activity at the center of industrial policy, within a sector 398 00:26:57,400 --> 00:27:02,320 Speaker 4: of the economy. And so to have a very broad 399 00:27:02,520 --> 00:27:06,760 Speaker 4: prohibition against not only the EPA but other agencies attempts 400 00:27:06,800 --> 00:27:14,520 Speaker 4: to restrict activity that even where it presents a significant 401 00:27:14,640 --> 00:27:18,960 Speaker 4: risk to human health or the environment. But you know, 402 00:27:19,000 --> 00:27:22,480 Speaker 4: it's very unclear to me whether the Supreme Court will 403 00:27:22,680 --> 00:27:25,520 Speaker 4: take up that invitation. I'm not saying it's impossible. 404 00:27:25,720 --> 00:27:27,040 Speaker 8: We will see. 405 00:27:27,320 --> 00:27:32,000 Speaker 4: But the language at issue in section one to eleven 406 00:27:32,080 --> 00:27:37,920 Speaker 4: D I think, while the EPA did construe it correctly, 407 00:27:39,160 --> 00:27:44,560 Speaker 4: is far more vague or ambiguous than the language that 408 00:27:44,560 --> 00:27:47,560 Speaker 4: we're relying on under the Toxic Substance of Control Act 409 00:27:47,600 --> 00:27:51,680 Speaker 4: in our petition. All that is to say therefore that 410 00:27:51,960 --> 00:27:58,480 Speaker 4: I think that even if the Supreme Court rules very 411 00:27:58,520 --> 00:28:03,080 Speaker 4: broadly in wass Universus EPA, the legal basis for our 412 00:28:03,119 --> 00:28:07,720 Speaker 4: petition under the Toxic Substance Control Act should be unaffected. 413 00:28:08,320 --> 00:28:11,040 Speaker 1: Which doesn't necessarily mean that a case about the EPA's 414 00:28:11,080 --> 00:28:15,240 Speaker 1: authority to regulate greenhouse gases under TOSCA wouldn't also land 415 00:28:15,320 --> 00:28:19,320 Speaker 1: at the Supreme Court. But Scalprin says he's ready. Can 416 00:28:19,359 --> 00:28:25,040 Speaker 1: you walk through some of the potential outcomes here? I 417 00:28:25,119 --> 00:28:28,439 Speaker 1: know you're expecting legal challenges. What might those be? 418 00:28:29,119 --> 00:28:33,480 Speaker 4: Well, we're in a retigious society. This is a industry, 419 00:28:33,680 --> 00:28:36,760 Speaker 4: the fossil fuel industry, the predominant source of greenhouse gas 420 00:28:36,800 --> 00:28:42,600 Speaker 4: emissions in this country, that is used to getting its way. 421 00:28:42,640 --> 00:28:45,680 Speaker 4: On the other hand, there have been a series of 422 00:28:45,760 --> 00:28:53,160 Speaker 4: successful regulatory programs that have limited the industry's unfettered right 423 00:28:53,320 --> 00:28:57,479 Speaker 4: to treat the atmosphere as an open sewer, and it 424 00:28:57,520 --> 00:28:59,680 Speaker 4: has adjusted well, and we believe that it would adjust 425 00:28:59,760 --> 00:29:02,320 Speaker 4: well to this type of regulation. That is to say, 426 00:29:03,200 --> 00:29:07,320 Speaker 4: the industry would be transformed into an energy industry. Just 427 00:29:07,440 --> 00:29:11,880 Speaker 4: last week, the United Nations General Secretary called for the 428 00:29:11,920 --> 00:29:16,160 Speaker 4: phase out of fossil fuels worldwide. They don't have to 429 00:29:16,200 --> 00:29:18,920 Speaker 4: go to court and challenges. They could participate in good 430 00:29:18,960 --> 00:29:21,480 Speaker 4: faith in the rulemaking process and we come up with 431 00:29:21,600 --> 00:29:30,680 Speaker 4: a reasonable pathway to get from a disaster to safety. 432 00:29:32,160 --> 00:29:37,360 Speaker 4: In the alternative, they could challenge EPA's decision. That would 433 00:29:37,360 --> 00:29:41,840 Speaker 4: I think be legal insanity for them to argue that 434 00:29:42,120 --> 00:29:45,479 Speaker 4: greenhouse gas emissions do not present the risk of injury 435 00:29:45,480 --> 00:29:48,720 Speaker 4: to health for the environment. I think that they would 436 00:29:48,840 --> 00:29:52,200 Speaker 4: certainly lose on that. We are prepared to go to 437 00:29:52,240 --> 00:29:59,640 Speaker 4: court to defend a favorable agency determination, and we will 438 00:29:59,640 --> 00:30:03,080 Speaker 4: do what's necessary, you know, going from one end of 439 00:30:03,080 --> 00:30:07,560 Speaker 4: this country to another, to galvanize the public to ensure 440 00:30:08,440 --> 00:30:13,160 Speaker 4: that the administration has the political support it needs to 441 00:30:13,200 --> 00:30:16,080 Speaker 4: do what is right here, and that is to take 442 00:30:16,120 --> 00:30:23,280 Speaker 4: strong action to preserve our nation from the continuing threat 443 00:30:23,320 --> 00:30:29,440 Speaker 4: of devastating climate change. It's within reach because of this 444 00:30:29,560 --> 00:30:35,280 Speaker 4: petition and pointing out, you know, this strong tool that 445 00:30:35,600 --> 00:30:39,360 Speaker 4: has been hiding in plain view. It's a tool that 446 00:30:39,520 --> 00:30:43,520 Speaker 4: therefore should be used to address what the President has 447 00:30:43,560 --> 00:30:47,200 Speaker 4: called an existential risk, an existential threat. 448 00:30:47,400 --> 00:30:51,360 Speaker 1: And then there are these short term economic levers, particularly 449 00:30:51,400 --> 00:30:55,080 Speaker 1: in the form of financial incentives to move quickly away 450 00:30:55,120 --> 00:30:58,680 Speaker 1: from fossil fuels. Biden's recent use of the Defense Production 451 00:30:58,880 --> 00:31:02,120 Speaker 1: Act to ramp production of both heat pumps and solar 452 00:31:02,160 --> 00:31:05,240 Speaker 1: panels and lift the tariff on imports for a couple 453 00:31:05,200 --> 00:31:08,880 Speaker 1: of years is a key example. Climate advocates have been 454 00:31:08,920 --> 00:31:12,600 Speaker 1: asking Biden for years to declare a climate emergency in 455 00:31:12,680 --> 00:31:15,920 Speaker 1: order to make moves exactly like this. Here's the President's 456 00:31:16,000 --> 00:31:20,760 Speaker 1: Climate advisor, Gina McCarthy explaining more about it on CBS News. 457 00:31:21,160 --> 00:31:26,120 Speaker 12: The President actually took three very decisive action yesterday, and 458 00:31:26,160 --> 00:31:29,360 Speaker 12: that was done in response to an urgent need to 459 00:31:29,400 --> 00:31:34,520 Speaker 12: grow the domestic energy economy and strengthen our energy security. 460 00:31:34,880 --> 00:31:39,280 Speaker 12: We were seeing the potential to significant layoffs solar projects 461 00:31:39,360 --> 00:31:44,480 Speaker 12: not coming online, grid instability as a result, we wanted 462 00:31:44,480 --> 00:31:47,040 Speaker 12: to protect those jobs who wanted to grow and spurred 463 00:31:47,080 --> 00:31:51,120 Speaker 12: the domestic economy. So we provided a small window of 464 00:31:51,200 --> 00:31:54,960 Speaker 12: opportunity really, which is a twenty four month bridge that's 465 00:31:55,000 --> 00:31:59,280 Speaker 12: going to jumpstart ours solar imports while we reinforce the 466 00:31:59,360 --> 00:32:04,400 Speaker 12: integrity about trade laws in those processes by taking action 467 00:32:04,600 --> 00:32:09,320 Speaker 12: to really spur the domestic production of solar right here 468 00:32:09,360 --> 00:32:10,920 Speaker 12: in the United States of America. 469 00:32:11,040 --> 00:32:15,280 Speaker 1: Now, climate advocates want Biden to do more invoking the 470 00:32:15,280 --> 00:32:18,880 Speaker 1: Defense Production Act, and it could be a way to 471 00:32:19,320 --> 00:32:22,160 Speaker 1: mitigate some of the damage of a bad ruling in 472 00:32:22,240 --> 00:32:25,440 Speaker 1: West Virginia versus EPA. So there is some hope that 473 00:32:25,480 --> 00:32:29,440 Speaker 1: if the West Virginia versus EPA ruling really does dramatically 474 00:32:29,480 --> 00:32:33,200 Speaker 1: curb the government's ability to regulate greenhouse gas emissions, these 475 00:32:33,320 --> 00:32:38,800 Speaker 1: short term economic levers could go a long way. Meanwhile, 476 00:32:39,520 --> 00:32:42,040 Speaker 1: Lisa Graves says, those who want to see climate action 477 00:32:42,720 --> 00:32:46,120 Speaker 1: need to be as imaginative and ruthless as those who 478 00:32:46,160 --> 00:32:48,640 Speaker 1: have sought to block it for decades. 479 00:32:50,080 --> 00:32:53,120 Speaker 5: You know, people are cynical or whatever. And you know, 480 00:32:53,120 --> 00:32:56,000 Speaker 5: maybe there's some cause for cynicism, given the political landscape 481 00:32:56,040 --> 00:32:58,720 Speaker 5: we've inherited, particularly in the Senate with so much so 482 00:32:58,760 --> 00:33:01,000 Speaker 5: many coke back senators there. 483 00:33:01,440 --> 00:33:02,240 Speaker 4: But the fact is. 484 00:33:02,320 --> 00:33:07,840 Speaker 5: Is that, you know, the right is almost unbound in 485 00:33:07,880 --> 00:33:11,760 Speaker 5: its imagination of where it wants to take America in 486 00:33:11,840 --> 00:33:15,160 Speaker 5: terms of how far they're willing to, you know, basically 487 00:33:15,200 --> 00:33:20,640 Speaker 5: roll back the twentieth century, you know, and it and 488 00:33:20,640 --> 00:33:22,920 Speaker 5: and yet and yet it's not you know, it's not 489 00:33:23,080 --> 00:33:26,000 Speaker 5: described as radical or reactionary. It is described as you know, 490 00:33:26,080 --> 00:33:28,800 Speaker 5: these ideas we're just debating these ideas. In fact, they're 491 00:33:28,840 --> 00:33:31,120 Speaker 5: seeking to implement them, and they've been they've been having 492 00:33:31,160 --> 00:33:33,520 Speaker 5: success really since the Reagan administration. 493 00:33:33,600 --> 00:33:38,000 Speaker 1: Sweeping and restrictive ruling in West Virginia versus EPA. Also 494 00:33:38,280 --> 00:33:41,320 Speaker 1: doesn't rule out the possibility of Congress passing a law 495 00:33:41,360 --> 00:33:45,400 Speaker 1: that would regulate greenhouse gas emissions, but that has not 496 00:33:45,560 --> 00:33:49,680 Speaker 1: worked to date, even when Democrats had a much stronger 497 00:33:49,840 --> 00:33:53,520 Speaker 1: majority in the government. So there's not a ton of 498 00:33:53,560 --> 00:33:58,920 Speaker 1: optimism around that path. At the farthest left end of 499 00:33:58,960 --> 00:34:02,920 Speaker 1: the spectrum, some progressives are saying, look, it's time to 500 00:34:02,960 --> 00:34:07,000 Speaker 1: think past our existing structures, particularly as we see them 501 00:34:07,080 --> 00:34:10,239 Speaker 1: failing all around US. I spoke with Max Berger, one 502 00:34:10,320 --> 00:34:13,680 Speaker 1: of the founders of Momentum, a movement incubator that helped 503 00:34:13,760 --> 00:34:16,480 Speaker 1: launch the Sunrise Movement, to get his take on this 504 00:34:16,640 --> 00:34:17,840 Speaker 1: a few months ago. 505 00:34:18,040 --> 00:34:20,040 Speaker 13: If you just were to step back and look at 506 00:34:20,040 --> 00:34:22,880 Speaker 13: the US as a country, it would be very clear. 507 00:34:23,440 --> 00:34:27,440 Speaker 13: You know, the current constitutional arrangement is not long for 508 00:34:27,520 --> 00:34:31,759 Speaker 13: this world. You know, you have a significant subset of 509 00:34:31,800 --> 00:34:36,279 Speaker 13: the population, particularly the white population, although not only that, 510 00:34:36,600 --> 00:34:42,280 Speaker 13: is really terrified about the transition away from a white 511 00:34:42,880 --> 00:34:50,800 Speaker 13: majority population to a multi racial majority and that's happening 512 00:34:50,800 --> 00:34:55,080 Speaker 13: in the context of you know, world historic inequality. Right, 513 00:34:55,120 --> 00:35:01,719 Speaker 13: so you really do have the conditions for ethno nationalist 514 00:35:01,800 --> 00:35:06,720 Speaker 13: authoritarian politics, right like, call it fascist, call it ethno 515 00:35:06,800 --> 00:35:10,919 Speaker 13: nationalist authoritarian, call it white supremacist politics, in which there 516 00:35:10,960 --> 00:35:13,600 Speaker 13: is a significant number of people that are willing to 517 00:35:13,680 --> 00:35:20,840 Speaker 13: use violence and do not really subscribe to the beliefs 518 00:35:20,840 --> 00:35:25,040 Speaker 13: that are required of participating in a democracy because they're 519 00:35:25,080 --> 00:35:30,080 Speaker 13: afraid of losing power within that democracy to other ethnic groups. 520 00:35:31,719 --> 00:35:36,359 Speaker 13: That's the kind of beginning of my analysis here. And 521 00:35:37,000 --> 00:35:40,120 Speaker 13: if you take that, you know, as a kind of 522 00:35:40,160 --> 00:35:45,080 Speaker 13: skeleton key for what's going on, you're a lot becomes 523 00:35:45,120 --> 00:35:47,640 Speaker 13: more clear in that you know, that group of people, 524 00:35:47,680 --> 00:35:52,480 Speaker 13: that kind of white supremacist plurality is not big enough 525 00:35:52,520 --> 00:35:54,279 Speaker 13: to govern the country, but it is big enough to 526 00:35:54,320 --> 00:36:01,280 Speaker 13: take over the Republican Party, as Trump showed, and through 527 00:36:01,680 --> 00:36:05,719 Speaker 13: their control of the Republican Party, are able to take 528 00:36:05,760 --> 00:36:09,719 Speaker 13: control of state and federal governments because we have a 529 00:36:09,840 --> 00:36:13,040 Speaker 13: very anti democratic political system, because you know, our political 530 00:36:13,080 --> 00:36:17,719 Speaker 13: system is the result of a compromise with slaveholders, and 531 00:36:17,760 --> 00:36:22,960 Speaker 13: so vastly over represents small rural states. 532 00:36:24,080 --> 00:36:25,759 Speaker 8: That white people have more power, and so. 533 00:36:27,600 --> 00:36:33,160 Speaker 13: That white supremacist plurality can take over the federal government, 534 00:36:33,200 --> 00:36:38,960 Speaker 13: state governments with a minority of votes. And you know, 535 00:36:39,040 --> 00:36:43,759 Speaker 13: because of other aspects of our anti democratic political system, 536 00:36:43,920 --> 00:36:48,960 Speaker 13: the Senate as we're seeing now, the electoral college, as 537 00:36:49,040 --> 00:36:51,719 Speaker 13: you know, we are kind of threatened with every four 538 00:36:51,760 --> 00:36:58,280 Speaker 13: years that there's going to be another instance in which the. 539 00:36:56,719 --> 00:36:58,760 Speaker 8: Winner of the popular vote does not become president. 540 00:36:58,760 --> 00:37:03,000 Speaker 13: And you know that has happened recently a number of times. 541 00:37:03,880 --> 00:37:06,640 Speaker 13: In the two party system, which allows for that, you know, 542 00:37:06,719 --> 00:37:09,040 Speaker 13: let's say twenty five to forty percent. 543 00:37:08,760 --> 00:37:13,719 Speaker 8: Of the population to govern, we are not. 544 00:37:15,360 --> 00:37:21,120 Speaker 13: We're not going to see the multi racial majority have 545 00:37:21,160 --> 00:37:27,040 Speaker 13: an opportunity to turn its will into law in the 546 00:37:27,080 --> 00:37:32,440 Speaker 13: next ten to fifteen years. And I think the amount 547 00:37:32,480 --> 00:37:37,960 Speaker 13: of tension that that will generate will break the political system. 548 00:37:38,239 --> 00:37:41,879 Speaker 13: I don't think that, you know, I don't think that 549 00:37:42,160 --> 00:37:47,360 Speaker 13: the amount. 550 00:37:43,400 --> 00:37:48,120 Speaker 8: Of friction that will be created in the. 551 00:37:50,760 --> 00:37:53,279 Speaker 13: In the in the popular will being stymied in that way, 552 00:37:53,920 --> 00:37:58,960 Speaker 13: particularly when the people in power are taking active steps 553 00:37:59,000 --> 00:38:05,240 Speaker 13: to move us away from competitive elections and limit people's rights. 554 00:38:06,280 --> 00:38:10,360 Speaker 13: I cannot imagine a situation in which the multiracial majority 555 00:38:10,440 --> 00:38:13,759 Speaker 13: takes that lying down. And I also don't think that 556 00:38:14,040 --> 00:38:25,200 Speaker 13: the white nationalists plurality is going to become less vociferous 557 00:38:25,280 --> 00:38:30,440 Speaker 13: in their opposition to multiracial democracy. So you know, and 558 00:38:30,480 --> 00:38:33,640 Speaker 13: if you were to talk about this with a comparative 559 00:38:33,640 --> 00:38:36,480 Speaker 13: political scientist, they would tell you, you know, if you have. 560 00:38:38,480 --> 00:38:39,160 Speaker 8: This kind of. 561 00:38:40,920 --> 00:38:47,080 Speaker 13: Demographic transition happening the worst case scenario, our political system 562 00:38:47,120 --> 00:38:51,759 Speaker 13: is basically designed as poorly as possible to manage that 563 00:38:51,840 --> 00:38:55,040 Speaker 13: kind of a demographic transition because the two party system 564 00:38:55,719 --> 00:39:01,239 Speaker 13: collapses all divisions in society into a zero, all or 565 00:39:01,320 --> 00:39:04,399 Speaker 13: nothing competitive existential. 566 00:39:05,560 --> 00:39:06,120 Speaker 8: Conflict. 567 00:39:06,840 --> 00:39:12,440 Speaker 13: And you know, when that gets racialized or ethnicized, it 568 00:39:12,480 --> 00:39:16,839 Speaker 13: can become dangerous very quickly. You know, we're as polarized 569 00:39:16,880 --> 00:39:21,480 Speaker 13: as any time since before the Civil War. And in addition, 570 00:39:21,760 --> 00:39:25,440 Speaker 13: you know, the with the with the separately elected presidency 571 00:39:25,520 --> 00:39:28,160 Speaker 13: and a bi cameral system, we have what ca what 572 00:39:28,239 --> 00:39:31,480 Speaker 13: a political scientists referred to as a profusion of veto 573 00:39:31,560 --> 00:39:35,040 Speaker 13: points right, So it's very very difficult for bills to 574 00:39:35,080 --> 00:39:39,799 Speaker 13: become law as we see with you know, anything, But 575 00:39:40,120 --> 00:39:42,560 Speaker 13: the example I always use is is gun control. 576 00:39:42,800 --> 00:39:47,200 Speaker 8: And you know, after name a massacre. 577 00:39:47,000 --> 00:39:49,280 Speaker 13: People always ask if this stuff is eighty five percent 578 00:39:49,320 --> 00:39:50,000 Speaker 13: approval rating? 579 00:39:50,040 --> 00:39:50,880 Speaker 8: Why can't it pass? 580 00:39:51,680 --> 00:39:53,440 Speaker 13: And the truth of the matter is that very little 581 00:39:53,440 --> 00:39:56,920 Speaker 13: can pass, you know, very little, very few laws make 582 00:39:56,960 --> 00:40:01,840 Speaker 13: it through the our system. And you know, there's a 583 00:40:01,840 --> 00:40:04,000 Speaker 13: stat that I think does not bode well. I tweeted 584 00:40:04,040 --> 00:40:06,000 Speaker 13: this the other day and people thought I was saying 585 00:40:06,000 --> 00:40:08,680 Speaker 13: this not in jest, but you know that there's a 586 00:40:08,760 --> 00:40:12,400 Speaker 13: there's a stat that the United States is the only 587 00:40:12,440 --> 00:40:16,920 Speaker 13: system that has a separately elected executive branch that is 588 00:40:16,960 --> 00:40:22,400 Speaker 13: not at some point collapsed into dictatorship because in presidential systems, 589 00:40:22,440 --> 00:40:28,400 Speaker 13: systems with a separate, separately elected executive, what happens is 590 00:40:28,840 --> 00:40:33,359 Speaker 13: there's a conflict between the president and the Congress and 591 00:40:33,640 --> 00:40:38,560 Speaker 13: there's some external crisis that requires action, and the Congress 592 00:40:39,040 --> 00:40:41,319 Speaker 13: is incapable of or unwilling to respond, and then the 593 00:40:41,400 --> 00:40:46,759 Speaker 13: executive takes the authority to do so without the approval 594 00:40:46,960 --> 00:40:51,080 Speaker 13: of the legislature. And once that is broken, it's very 595 00:40:51,080 --> 00:40:56,160 Speaker 13: hard to take back. And I think some version of 596 00:40:56,200 --> 00:41:01,360 Speaker 13: that is more or less inevitable in the next five years. 597 00:41:01,800 --> 00:41:02,200 Speaker 2: So I. 598 00:41:04,120 --> 00:41:06,040 Speaker 13: The way I say it is like, look, we're going 599 00:41:06,080 --> 00:41:08,560 Speaker 13: to get a new political system. The question is does 600 00:41:08,560 --> 00:41:12,840 Speaker 13: it happen before authoritarian authoritarianism and civil war or after, 601 00:41:13,680 --> 00:41:17,239 Speaker 13: and I would love for it to be before. You know, 602 00:41:17,920 --> 00:41:20,520 Speaker 13: as an American, I would love to not have to 603 00:41:20,560 --> 00:41:24,279 Speaker 13: experience those things, But don't. I don't think we're going to. 604 00:41:24,640 --> 00:41:27,759 Speaker 13: So I think we're looking more at a you know, 605 00:41:27,880 --> 00:41:32,600 Speaker 13: post dictatorship, post conflict situation and less at like, how 606 00:41:32,600 --> 00:41:34,560 Speaker 13: do we organize a political revolution before? 607 00:41:38,800 --> 00:41:41,520 Speaker 1: So there you have it, a few potential avenues for 608 00:41:41,600 --> 00:41:44,160 Speaker 1: climate action even in the face of a worst case 609 00:41:44,200 --> 00:41:47,759 Speaker 1: scenario ruling. One thing I want to emphasize here it's 610 00:41:47,760 --> 00:41:50,880 Speaker 1: not that the ruling in West Virginia versus EPA doesn't matter, 611 00:41:51,440 --> 00:41:55,759 Speaker 1: or that it's not justifiably anxiety inducing it is. It's 612 00:41:55,800 --> 00:41:59,680 Speaker 1: more that it doesn't make the political reality of tackling 613 00:41:59,719 --> 00:42:04,040 Speaker 1: client in the US that much worse than it has 614 00:42:04,160 --> 00:42:09,000 Speaker 1: been for years, which isn't good news. It just means 615 00:42:09,040 --> 00:42:12,680 Speaker 1: that a lot of the same fights will continue. And 616 00:42:12,800 --> 00:42:14,880 Speaker 1: of course I'll be back with an update and a 617 00:42:14,920 --> 00:42:18,360 Speaker 1: deep dive on that ruling as soon as it's out. 618 00:42:21,600 --> 00:42:24,040 Speaker 1: That's it for this week. To read or endorse the 619 00:42:24,080 --> 00:42:29,680 Speaker 1: petition and track its progress, check out cprclimate dot org. 620 00:42:30,080 --> 00:42:32,200 Speaker 1: We'll bring you an update when the EPA makes a 621 00:42:32,239 --> 00:42:35,720 Speaker 1: decision too. 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