Speaker 1: You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio.
Speaker 1: President Trump has expressed no concern over climate change as
Speaker 1: he pursues his goal of American dominance and the energy
Speaker 1: market and streamline the approval process for environmental reviews of
Speaker 1: major projects. It's called one federal decision requires agencies to
Speaker 1: work closely together to promptly deliver one decision. Yes, the
Speaker 1: entire process will be completed. The entire federal government approval
Speaker 1: process will be done. But federal courts have been faulting
Speaker 1: the Trump administration for its lack of concern about climate change,
Speaker 1: and the administration has a string of court losses to
Speaker 1: prove it. Time and time again. Federal judges have rebuked
Speaker 1: the Interior Department for selling drilling rights or advancing oil
Speaker 1: projects without considering the real consequences to a warming planet.
Speaker 1: Joining me as environmental law professor Pat Parento of Vermont
Speaker 1: Law School, so Pat explain why federal judges have criticized
Speaker 1: the Interior Department six times since Trump became president. Most
Speaker 1: of these cases have been brought under the National Environmental
Speaker 1: Policy Act. Of course, now fifty years old, are magna
Speaker 1: carta as they say of environmental law. And what's striking
Speaker 1: about this space of cases is that either the Trump
Speaker 1: administration and the Department of Interior haven't learned anything over
Speaker 1: the last three and a half years, or they learned,
Speaker 1: but they're not going to change their way, so they
Speaker 1: continue the same mistake, which is NIPA requires you to
Speaker 1: look into the future and assess the cumulative effects of
Speaker 1: all of this oil and gas leasing, not only the
Speaker 1: direct effects of the leasing itself on water and air
Speaker 1: and wildlife habitat, but also of course the climate effects
Speaker 1: of continuing to develop all this fossil fuel and burning it,
Speaker 1: both coal and gas. And the pattern is absolutely clear.
Speaker 1: The courts have said over and over again, you have
Speaker 1: to make your best estimate of what the impact of
Speaker 1: all of this leasing and drilling and production is going
Speaker 1: to have in light of the science, the climate science,
Speaker 1: which is telling us we can't keep burning all this stuff.
Speaker 1: We've got to leave much of this in the ground.
Speaker 1: And yet you seem oblivious to what the science is
Speaker 1: saying and to the effects that are threatened by this.
Speaker 1: So the courts have been really clear, there's no mystery
Speaker 1: about what the Department of Interior should be doing they're
Speaker 1: just adamantly refusing to do. It is that the agencies
Speaker 1: are leaving out the climate change part of the equation
Speaker 1: when they're dealing with more traditional environmental concerns. Largely, that's
Speaker 1: true in some of these cases, some of the impacts
Speaker 1: on wildlife habitat, for example, the sage ground, which is
Speaker 1: a highly threatened bird that's an indicator species versus the
Speaker 1: sage brush ecosystem, right, And like all these habitats that's
Speaker 1: being destroyed by lots of different activities grazing and mining
Speaker 1: and so forth. But oil and gas is a big
Speaker 1: part of that threat to that particular species. So in
Speaker 1: some cases you're gonna find decisions saying you've got to
Speaker 1: take account of the cumulative loss of habitat to threaten species.
Speaker 1: But for the most part, these cases are all about
Speaker 1: the cumulative loading of the atmosphere with carbon dioxide and
Speaker 1: methane and these other greenhouse gases. And the courts are
Speaker 1: also saying you've got to conduct what's called the social
Speaker 1: cost of carbon. You're touting the benefits of all of
Speaker 1: this oil and gas development. Of course, Trump's energy dominance agenda,
Speaker 1: you're quick to point out all the economic benefits like
Speaker 1: the revenues that have been generated by all this development
Speaker 1: to the government, But you're not counting the costs. You're
Speaker 1: not acknowledging that all of this development does come not
Speaker 1: only with an environmental cost, but with an economic cost.
Speaker 1: Because one thing we know about getting a handle on
Speaker 1: climate change is the longer that you delay it, the
Speaker 1: more expensive and difficult and at some point impossible it becomes.
Speaker 1: So that's another thing the courts are pointing out. You
Speaker 1: have to be fair and balanced in your analysis benefits yet,
Speaker 1: but costs as well. Are the courts consistent in this
Speaker 1: application or are some courts more conservative and perhaps not
Speaker 1: going as far as other courts. No, this is one
Speaker 1: where the courts are absolutely consistent. There's no split of
Speaker 1: authority in terms of what does the deeper require of
Speaker 1: the kinds of analysis that's been missing. No, all of
Speaker 1: the courts are in agreement on this. And interestingly, the
Speaker 1: judges that are involved here, you might think that they
Speaker 1: were all quote Obama judges, they're not. One of them
Speaker 1: is actually the Trump appointed judge. Another one is a
Speaker 1: George W. Bush appointee. So this is not a partisan
Speaker 1: judicial issue. This is all the courts looking at every
Speaker 1: single one of these cases and all of them concluding
Speaker 1: you're just not doing what the law that's been on
Speaker 1: the books for fifty years requires you to do. You're
Speaker 1: not even following your own regulations. In many cases, you're
Speaker 1: trying to fast track this development, push your way through
Speaker 1: the law, cut corners, ignore impact. And now the Trump
Speaker 1: administration is trying to gut NIPA itself through this Council
Speaker 1: on Environmental Quality, which is I guess a misnomer. At
Speaker 1: this point. They're proposing to radically alter the rules to
Speaker 1: implement NIPA and eliminate things like considering cumulative effects. It's
Speaker 1: just stunning what's being proposed. So is this just the
Speaker 1: Trump administration or was the Obama administration also at fault
Speaker 1: in this regard. I would have to lay some of
Speaker 1: the blame on Obama. He was the first president to
Speaker 1: really ramp up boiling gas development. At the time, the
Speaker 1: thought was that natural gas was a much better alternative
Speaker 1: to coal, which is true in many respects. Its it's
Speaker 1: probably not as advantageous as some have claimed because we
Speaker 1: don't know what the rate of loss of methane leak
Speaker 1: each is. But put that aside, Obama definitely at least
Speaker 1: a lot of these areas that have now been challenged
Speaker 1: and put on hold. So there's blame to go around.
Speaker 1: For sure, it isn't just a Trump issue. But it's
Speaker 1: also true that Trump has radically ramped up the amount
Speaker 1: of leasing and has failed to take account of the
Speaker 1: constant message from the courts that you're doing it wrong
Speaker 1: and if you're gonna do this, at least do it
Speaker 1: in accordance with the law. So pat is this not
Speaker 1: only about developing fossil fuels but also about Trump's deregulatory agenda.
Speaker 1: It sure is. These proposed changes to the NIPA regulations
Speaker 1: is all part of the what I would characterize as
Speaker 1: an assault on the foundations of environmental law. There are
Speaker 1: now one hundred one hundred different proposed role backs of
Speaker 1: rules and policies and guidelines, not only just ones that
Speaker 1: were adopted during the Obama administration, but going all the
Speaker 1: way back, as they said, all the way back to
Speaker 1: the beginning of the National Environmental Policy Act, the beginning
Speaker 1: of the Clean Water Act. We're now seeing proposals to
Speaker 1: limit the ability of states to protect their water quality
Speaker 1: because the Trump administration is concerned that some states are
Speaker 1: using that authority to block pipelines and coal terminals and
Speaker 1: other fossil fuel infrastructure. What the states are saying, of course,
Speaker 1: we've been using this authority Congress gave us for four decades,
Speaker 1: and along comes the Trump administration and says, no, we're
Speaker 1: going to change the rules of the road on that
Speaker 1: as well. So it's all part of the deregulatory agenda.
Speaker 1: Have these court defeats jeopardized any high stakes oil development
Speaker 1: plans on federal land, I think it has to have
Speaker 1: had some effects on the ability of these companies is
Speaker 1: to weather the downturn in demand for gas. There's a
Speaker 1: glut of gas on the market and oil for that matter,
Speaker 1: and a lot of these companies are looking at some
Speaker 1: pretty serious losses and even potential bankruptcy or reorganization types bankruptcies.
Speaker 1: They've been counting these companies on ready access to federal
Speaker 1: lands at very favorable rates through these auctions, and if
Speaker 1: they can't get access to relatively cheap and easy to
Speaker 1: access oil and gas on public lands, they're going to
Speaker 1: have a hard time making it financially, at least that
Speaker 1: would be my view of it. So pat is it
Speaker 1: that the federal agencies c problems and just ignore them,
Speaker 1: or do they minimize them, or do they not even
Speaker 1: look for them. Well, they certainly are looking for every
Speaker 1: way to avoid these lengthy, detailed analyzes. And I don't
Speaker 1: want to under estimate, um, the fact that it does
Speaker 1: take time and effort and modeling and data collection to
Speaker 1: do this kind of analysis. It's not a back of
Speaker 1: the envelope kind of thing. So you know, the agencies
Speaker 1: are are anxious to not have to go through that lengthy, complex,
Speaker 1: detailed analysis. That saves them time. They can get these
Speaker 1: auctions for these leases up quicker and sell them and
Speaker 1: move on to the next one. So that's part of it.
Speaker 1: Some of it is they're trying to take advantage of
Speaker 1: some of the loopholes that are in the law. There's
Speaker 1: things called categorical exclusions and a variety of other potential
Speaker 1: ways to dodge some of these more detailed analyzes. So
Speaker 1: they're doing that as well. But the most striking thing
Speaker 1: to me is that they are just absolutely refusing to
Speaker 1: follow the direction that multiple courts have given them. Um,
Speaker 1: you know, the judges have written thirty forty fifty page
Speaker 1: opinions lay being out what the law requires how you
Speaker 1: should try to comply with it, acknowledging the complexities and
Speaker 1: the challenges, giving the agencies some discretion and flexibility, but
Speaker 1: clearly laying out a blueprint for what they need to
Speaker 1: do if they want to prevent themselves from being stopped
Speaker 1: in court, ensued repeatedly. And yet despite all that, the
Speaker 1: agencies continue to repeat the same mistake. It's the very
Speaker 1: definition of insanity, you know, repeating doing the same thing
Speaker 1: over and over again and expecting a different result. A
Speaker 1: drafted final rule under review at the White House would
Speaker 1: narrow the scope of agencies environmental reviews undern So is
Speaker 1: it exactly what the courts have said not to do.
Speaker 1: That's true, and those proposed changes are also of course
Speaker 1: going to be politic add and the Trump record in
Speaker 1: court is the worst in history. New York University's Institute
Speaker 1: for Policy Integrity tracks every single one of the cases
Speaker 1: that are challenging all of these rollbacks, and there box
Speaker 1: score shows that the Trump administration has lost over of
Speaker 1: the cases where they've been challenged. So with regard to
Speaker 1: this proposed changes to the NIPA regulations, we're gonna see
Speaker 1: a repeat of what we've seen before I predict, which
Speaker 1: is the courts are not going to stand for it.
Speaker 1: These these rules again have been on the books for
Speaker 1: fifty years. There are literally thousands now of court decisions
Speaker 1: interpreting applying the rules of the road under NIAPA, and
Speaker 1: all of a sudden, this administration comes along and says,
Speaker 1: forget all of that. We're going to change all of that.
Speaker 1: You're not going to have to consider these cumulative impacts
Speaker 1: because we know that takes too long and we don't
Speaker 1: want to wait for that kind of analysis. We want
Speaker 1: to press forward with our energy agenda without that. So
Speaker 1: even though the Trump administration is losing in court with
Speaker 1: the analyzes they're doing today, they're counting on a change
Speaker 1: in the rules so they won't have to do that
Speaker 1: in the future. But I don't think that's going to
Speaker 1: happen either. And all it leads us with is a
Speaker 1: lot of uncertainty for the industry, for the public, for
Speaker 1: the communities that are affected by all this development. Um.
Speaker 1: It just leaves us in a chaotic situation. And I
Speaker 1: hate to say it, but it appears to me that
Speaker 1: this administration really is not concerned about that. They in
Speaker 1: fact sort of welcome the chaos. It seems Joe Biden
Speaker 1: has said that if he wins the presidency, he's vowed
Speaker 1: to stop new oil, gas and colly seeing on federal land. Now,
Speaker 1: how difficult would that be to do legally? He could
Speaker 1: do that Politically, he's got to take account of the
Speaker 1: fact that in places like New Mexico, oil and gas
Speaker 1: revenues are a huge part of that state's economy. And
Speaker 1: even with a progressive governor luhan In in office who's
Speaker 1: trying to bring New Mexico into a cleaner, less dependent
Speaker 1: on fossil fuel, that can't happen overnight, right So, I
Speaker 1: think what the Biden administration is going to find is
Speaker 1: the job of shutting down or phasing out, if you
Speaker 1: want to put it that way, oil and gas development
Speaker 1: on public lands is going to prove more difficult than
Speaker 1: it may seem right now. In a campaign, it's easy
Speaker 1: to say what you're gonna do, but obviously reality in
Speaker 1: truths at some point. But legally, legally there's no question.
Speaker 1: But what the Biden administration could do is to say
Speaker 1: we are going to not you're not going to offer
Speaker 1: any more leases, and they can start it in different
Speaker 1: probably areas of the West um And obviously it's going
Speaker 1: to have to be accompanied by some kind of call
Speaker 1: it stimulus package, if you will, but some kind of
Speaker 1: economic assistance to these states and communities that are so
Speaker 1: dependent on coal like Wyoming and on gas like in Mexico.
Speaker 1: So it's going to have to be obviously part of
Speaker 1: a much bigger transition effort than simply stopping the leasing.
Speaker 1: The U. S. Army Corps of Engineers has been forced
Speaker 1: to suspend it's fast tracking of pipelines. Does that connect
Speaker 1: to this? Are there are the reasons similar or different?
Speaker 1: They they're similar and different. The Core of Engineers has
Speaker 1: what are called nationwide permits. One of them, number twelve,
Speaker 1: is designed to facilitate construction of pipelines and other sort
Speaker 1: of linear projects, transmission lines and things like that. So
Speaker 1: that that kind of permit process, which is a sort
Speaker 1: of a streamlining permit process that's been on the books
Speaker 1: for a long time. But it's also true again that
Speaker 1: under the Trump administration, the Core of Engineers is cutting corners.
Speaker 1: Um They've been stopped repeatedly. The Keystone XL pipeline has
Speaker 1: been stopped again, The Dakota Access Pipeline has been well
Speaker 1: it's it's it's actually constructed in operating, but the courts
Speaker 1: have said the core of engineers analysis of the risks
Speaker 1: from that pipeline are inadequate underneath and have to be
Speaker 1: done again. And that judge, Judge Boisberg in the d C.
Speaker 1: District Court is considering whether or not to actually stop
Speaker 1: the flow of oil through the Dakota Access pipeline, which
Speaker 1: would obviously be a huge blow to the company and
Speaker 1: the people dependent on that that project. So you know,
Speaker 1: all of these different corner cutting moves are catching up,
Speaker 1: I would say, with the Trump administration. Thanks Pat. That's
Speaker 1: Pat Parento of the Vermont Law School. And that's it
Speaker 1: for this edition of Bloomberg Long. I'm June Grossel. Thanks
Speaker 1: so much for listening. This is Bloomberg