WEBVTT - Why Trump Keeps Losing Climate Cases in Court

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<v Speaker 1>You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio.

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<v Speaker 1>President Trump has expressed no concern over climate change as

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<v Speaker 1>he pursues his goal of American dominance and the energy

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<v Speaker 1>market and streamline the approval process for environmental reviews of

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<v Speaker 1>major projects. It's called one federal decision requires agencies to

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<v Speaker 1>work closely together to promptly deliver one decision. Yes, the

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<v Speaker 1>entire process will be completed. The entire federal government approval

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<v Speaker 1>process will be done. But federal courts have been faulting

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<v Speaker 1>the Trump administration for its lack of concern about climate change,

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<v Speaker 1>and the administration has a string of court losses to

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<v Speaker 1>prove it. Time and time again. Federal judges have rebuked

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<v Speaker 1>the Interior Department for selling drilling rights or advancing oil

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<v Speaker 1>projects without considering the real consequences to a warming planet.

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<v Speaker 1>Joining me as environmental law professor Pat Parento of Vermont

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<v Speaker 1>Law School, so Pat explain why federal judges have criticized

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<v Speaker 1>the Interior Department six times since Trump became president. Most

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<v Speaker 1>of these cases have been brought under the National Environmental

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<v Speaker 1>Policy Act. Of course, now fifty years old, are magna

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<v Speaker 1>carta as they say of environmental law. And what's striking

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<v Speaker 1>about this space of cases is that either the Trump

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<v Speaker 1>administration and the Department of Interior haven't learned anything over

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<v Speaker 1>the last three and a half years, or they learned,

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<v Speaker 1>but they're not going to change their way, so they

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<v Speaker 1>continue the same mistake, which is NIPA requires you to

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<v Speaker 1>look into the future and assess the cumulative effects of

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<v Speaker 1>all of this oil and gas leasing, not only the

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<v Speaker 1>direct effects of the leasing itself on water and air

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<v Speaker 1>and wildlife habitat, but also of course the climate effects

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<v Speaker 1>of continuing to develop all this fossil fuel and burning it,

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<v Speaker 1>both coal and gas. And the pattern is absolutely clear.

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<v Speaker 1>The courts have said over and over again, you have

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<v Speaker 1>to make your best estimate of what the impact of

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<v Speaker 1>all of this leasing and drilling and production is going

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<v Speaker 1>to have in light of the science, the climate science,

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<v Speaker 1>which is telling us we can't keep burning all this stuff.

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<v Speaker 1>We've got to leave much of this in the ground.

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<v Speaker 1>And yet you seem oblivious to what the science is

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<v Speaker 1>saying and to the effects that are threatened by this.

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<v Speaker 1>So the courts have been really clear, there's no mystery

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<v Speaker 1>about what the Department of Interior should be doing they're

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<v Speaker 1>just adamantly refusing to do. It is that the agencies

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<v Speaker 1>are leaving out the climate change part of the equation

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<v Speaker 1>when they're dealing with more traditional environmental concerns. Largely, that's

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<v Speaker 1>true in some of these cases, some of the impacts

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<v Speaker 1>on wildlife habitat, for example, the sage ground, which is

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<v Speaker 1>a highly threatened bird that's an indicator species versus the

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<v Speaker 1>sage brush ecosystem, right, And like all these habitats that's

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<v Speaker 1>being destroyed by lots of different activities grazing and mining

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<v Speaker 1>and so forth. But oil and gas is a big

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<v Speaker 1>part of that threat to that particular species. So in

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<v Speaker 1>some cases you're gonna find decisions saying you've got to

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<v Speaker 1>take account of the cumulative loss of habitat to threaten species.

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<v Speaker 1>But for the most part, these cases are all about

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<v Speaker 1>the cumulative loading of the atmosphere with carbon dioxide and

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<v Speaker 1>methane and these other greenhouse gases. And the courts are

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<v Speaker 1>also saying you've got to conduct what's called the social

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<v Speaker 1>cost of carbon. You're touting the benefits of all of

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<v Speaker 1>this oil and gas development. Of course, Trump's energy dominance agenda,

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<v Speaker 1>you're quick to point out all the economic benefits like

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<v Speaker 1>the revenues that have been generated by all this development

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<v Speaker 1>to the government, But you're not counting the costs. You're

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<v Speaker 1>not acknowledging that all of this development does come not

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<v Speaker 1>only with an environmental cost, but with an economic cost.

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<v Speaker 1>Because one thing we know about getting a handle on

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<v Speaker 1>climate change is the longer that you delay it, the

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<v Speaker 1>more expensive and difficult and at some point impossible it becomes.

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<v Speaker 1>So that's another thing the courts are pointing out. You

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<v Speaker 1>have to be fair and balanced in your analysis benefits yet,

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<v Speaker 1>but costs as well. Are the courts consistent in this

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<v Speaker 1>application or are some courts more conservative and perhaps not

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<v Speaker 1>going as far as other courts. No, this is one

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<v Speaker 1>where the courts are absolutely consistent. There's no split of

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<v Speaker 1>authority in terms of what does the deeper require of

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<v Speaker 1>the kinds of analysis that's been missing. No, all of

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<v Speaker 1>the courts are in agreement on this. And interestingly, the

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<v Speaker 1>judges that are involved here, you might think that they

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<v Speaker 1>were all quote Obama judges, they're not. One of them

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<v Speaker 1>is actually the Trump appointed judge. Another one is a

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<v Speaker 1>George W. Bush appointee. So this is not a partisan

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<v Speaker 1>judicial issue. This is all the courts looking at every

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<v Speaker 1>single one of these cases and all of them concluding

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<v Speaker 1>you're just not doing what the law that's been on

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<v Speaker 1>the books for fifty years requires you to do. You're

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<v Speaker 1>not even following your own regulations. In many cases, you're

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<v Speaker 1>trying to fast track this development, push your way through

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<v Speaker 1>the law, cut corners, ignore impact. And now the Trump

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<v Speaker 1>administration is trying to gut NIPA itself through this Council

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<v Speaker 1>on Environmental Quality, which is I guess a misnomer. At

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<v Speaker 1>this point. They're proposing to radically alter the rules to

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<v Speaker 1>implement NIPA and eliminate things like considering cumulative effects. It's

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<v Speaker 1>just stunning what's being proposed. So is this just the

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<v Speaker 1>Trump administration or was the Obama administration also at fault

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<v Speaker 1>in this regard. I would have to lay some of

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<v Speaker 1>the blame on Obama. He was the first president to

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<v Speaker 1>really ramp up boiling gas development. At the time, the

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<v Speaker 1>thought was that natural gas was a much better alternative

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<v Speaker 1>to coal, which is true in many respects. Its it's

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<v Speaker 1>probably not as advantageous as some have claimed because we

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<v Speaker 1>don't know what the rate of loss of methane leak

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<v Speaker 1>each is. But put that aside, Obama definitely at least

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<v Speaker 1>a lot of these areas that have now been challenged

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<v Speaker 1>and put on hold. So there's blame to go around.

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<v Speaker 1>For sure, it isn't just a Trump issue. But it's

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<v Speaker 1>also true that Trump has radically ramped up the amount

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<v Speaker 1>of leasing and has failed to take account of the

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<v Speaker 1>constant message from the courts that you're doing it wrong

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<v Speaker 1>and if you're gonna do this, at least do it

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<v Speaker 1>in accordance with the law. So pat is this not

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<v Speaker 1>only about developing fossil fuels but also about Trump's deregulatory agenda.

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<v Speaker 1>It sure is. These proposed changes to the NIPA regulations

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<v Speaker 1>is all part of the what I would characterize as

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<v Speaker 1>an assault on the foundations of environmental law. There are

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<v Speaker 1>now one hundred one hundred different proposed role backs of

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<v Speaker 1>rules and policies and guidelines, not only just ones that

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<v Speaker 1>were adopted during the Obama administration, but going all the

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<v Speaker 1>way back, as they said, all the way back to

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<v Speaker 1>the beginning of the National Environmental Policy Act, the beginning

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<v Speaker 1>of the Clean Water Act. We're now seeing proposals to

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<v Speaker 1>limit the ability of states to protect their water quality

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<v Speaker 1>because the Trump administration is concerned that some states are

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<v Speaker 1>using that authority to block pipelines and coal terminals and

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<v Speaker 1>other fossil fuel infrastructure. What the states are saying, of course,

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<v Speaker 1>we've been using this authority Congress gave us for four decades,

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<v Speaker 1>and along comes the Trump administration and says, no, we're

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<v Speaker 1>going to change the rules of the road on that

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<v Speaker 1>as well. So it's all part of the deregulatory agenda.

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<v Speaker 1>Have these court defeats jeopardized any high stakes oil development

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<v Speaker 1>plans on federal land, I think it has to have

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<v Speaker 1>had some effects on the ability of these companies is

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<v Speaker 1>to weather the downturn in demand for gas. There's a

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<v Speaker 1>glut of gas on the market and oil for that matter,

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<v Speaker 1>and a lot of these companies are looking at some

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<v Speaker 1>pretty serious losses and even potential bankruptcy or reorganization types bankruptcies.

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<v Speaker 1>They've been counting these companies on ready access to federal

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<v Speaker 1>lands at very favorable rates through these auctions, and if

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<v Speaker 1>they can't get access to relatively cheap and easy to

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<v Speaker 1>access oil and gas on public lands, they're going to

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<v Speaker 1>have a hard time making it financially, at least that

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<v Speaker 1>would be my view of it. So pat is it

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<v Speaker 1>that the federal agencies c problems and just ignore them,

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<v Speaker 1>or do they minimize them, or do they not even

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<v Speaker 1>look for them. Well, they certainly are looking for every

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<v Speaker 1>way to avoid these lengthy, detailed analyzes. And I don't

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<v Speaker 1>want to under estimate, um, the fact that it does

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<v Speaker 1>take time and effort and modeling and data collection to

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<v Speaker 1>do this kind of analysis. It's not a back of

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<v Speaker 1>the envelope kind of thing. So you know, the agencies

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<v Speaker 1>are are anxious to not have to go through that lengthy, complex,

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<v Speaker 1>detailed analysis. That saves them time. They can get these

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<v Speaker 1>auctions for these leases up quicker and sell them and

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<v Speaker 1>move on to the next one. So that's part of it.

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<v Speaker 1>Some of it is they're trying to take advantage of

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<v Speaker 1>some of the loopholes that are in the law. There's

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<v Speaker 1>things called categorical exclusions and a variety of other potential

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<v Speaker 1>ways to dodge some of these more detailed analyzes. So

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<v Speaker 1>they're doing that as well. But the most striking thing

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<v Speaker 1>to me is that they are just absolutely refusing to

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<v Speaker 1>follow the direction that multiple courts have given them. Um,

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<v Speaker 1>you know, the judges have written thirty forty fifty page

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<v Speaker 1>opinions lay being out what the law requires how you

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<v Speaker 1>should try to comply with it, acknowledging the complexities and

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<v Speaker 1>the challenges, giving the agencies some discretion and flexibility, but

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<v Speaker 1>clearly laying out a blueprint for what they need to

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<v Speaker 1>do if they want to prevent themselves from being stopped

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<v Speaker 1>in court, ensued repeatedly. And yet despite all that, the

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<v Speaker 1>agencies continue to repeat the same mistake. It's the very

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<v Speaker 1>definition of insanity, you know, repeating doing the same thing

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<v Speaker 1>over and over again and expecting a different result. A

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<v Speaker 1>drafted final rule under review at the White House would

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<v Speaker 1>narrow the scope of agencies environmental reviews undern So is

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<v Speaker 1>it exactly what the courts have said not to do.

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<v Speaker 1>That's true, and those proposed changes are also of course

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<v Speaker 1>going to be politic add and the Trump record in

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<v Speaker 1>court is the worst in history. New York University's Institute

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<v Speaker 1>for Policy Integrity tracks every single one of the cases

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<v Speaker 1>that are challenging all of these rollbacks, and there box

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<v Speaker 1>score shows that the Trump administration has lost over of

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<v Speaker 1>the cases where they've been challenged. So with regard to

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<v Speaker 1>this proposed changes to the NIPA regulations, we're gonna see

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<v Speaker 1>a repeat of what we've seen before I predict, which

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<v Speaker 1>is the courts are not going to stand for it.

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<v Speaker 1>These these rules again have been on the books for

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<v Speaker 1>fifty years. There are literally thousands now of court decisions

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<v Speaker 1>interpreting applying the rules of the road under NIAPA, and

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<v Speaker 1>all of a sudden, this administration comes along and says,

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<v Speaker 1>forget all of that. We're going to change all of that.

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<v Speaker 1>You're not going to have to consider these cumulative impacts

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<v Speaker 1>because we know that takes too long and we don't

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<v Speaker 1>want to wait for that kind of analysis. We want

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<v Speaker 1>to press forward with our energy agenda without that. So

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<v Speaker 1>even though the Trump administration is losing in court with

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<v Speaker 1>the analyzes they're doing today, they're counting on a change

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<v Speaker 1>in the rules so they won't have to do that

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<v Speaker 1>in the future. But I don't think that's going to

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<v Speaker 1>happen either. And all it leads us with is a

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<v Speaker 1>lot of uncertainty for the industry, for the public, for

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<v Speaker 1>the communities that are affected by all this development. Um.

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<v Speaker 1>It just leaves us in a chaotic situation. And I

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<v Speaker 1>hate to say it, but it appears to me that

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<v Speaker 1>this administration really is not concerned about that. They in

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<v Speaker 1>fact sort of welcome the chaos. It seems Joe Biden

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<v Speaker 1>has said that if he wins the presidency, he's vowed

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<v Speaker 1>to stop new oil, gas and colly seeing on federal land. Now,

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<v Speaker 1>how difficult would that be to do legally? He could

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<v Speaker 1>do that Politically, he's got to take account of the

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<v Speaker 1>fact that in places like New Mexico, oil and gas

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<v Speaker 1>revenues are a huge part of that state's economy. And

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<v Speaker 1>even with a progressive governor luhan In in office who's

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<v Speaker 1>trying to bring New Mexico into a cleaner, less dependent

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<v Speaker 1>on fossil fuel, that can't happen overnight, right So, I

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<v Speaker 1>think what the Biden administration is going to find is

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<v Speaker 1>the job of shutting down or phasing out, if you

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<v Speaker 1>want to put it that way, oil and gas development

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<v Speaker 1>on public lands is going to prove more difficult than

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<v Speaker 1>it may seem right now. In a campaign, it's easy

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<v Speaker 1>to say what you're gonna do, but obviously reality in

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<v Speaker 1>truths at some point. But legally, legally there's no question.

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<v Speaker 1>But what the Biden administration could do is to say

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<v Speaker 1>we are going to not you're not going to offer

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<v Speaker 1>any more leases, and they can start it in different

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<v Speaker 1>probably areas of the West um And obviously it's going

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<v Speaker 1>to have to be accompanied by some kind of call

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<v Speaker 1>it stimulus package, if you will, but some kind of

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<v Speaker 1>economic assistance to these states and communities that are so

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<v Speaker 1>dependent on coal like Wyoming and on gas like in Mexico.

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<v Speaker 1>So it's going to have to be obviously part of

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<v Speaker 1>a much bigger transition effort than simply stopping the leasing.

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<v Speaker 1>The U. S. Army Corps of Engineers has been forced

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<v Speaker 1>to suspend it's fast tracking of pipelines. Does that connect

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<v Speaker 1>to this? Are there are the reasons similar or different?

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<v Speaker 1>They they're similar and different. The Core of Engineers has

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<v Speaker 1>what are called nationwide permits. One of them, number twelve,

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<v Speaker 1>is designed to facilitate construction of pipelines and other sort

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<v Speaker 1>of linear projects, transmission lines and things like that. So

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<v Speaker 1>that that kind of permit process, which is a sort

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<v Speaker 1>of a streamlining permit process that's been on the books

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<v Speaker 1>for a long time. But it's also true again that

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<v Speaker 1>under the Trump administration, the Core of Engineers is cutting corners.

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<v Speaker 1>Um They've been stopped repeatedly. The Keystone XL pipeline has

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<v Speaker 1>been stopped again, The Dakota Access Pipeline has been well

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<v Speaker 1>it's it's it's actually constructed in operating, but the courts

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<v Speaker 1>have said the core of engineers analysis of the risks

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<v Speaker 1>from that pipeline are inadequate underneath and have to be

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<v Speaker 1>done again. And that judge, Judge Boisberg in the d C.

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<v Speaker 1>District Court is considering whether or not to actually stop

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<v Speaker 1>the flow of oil through the Dakota Access pipeline, which

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<v Speaker 1>would obviously be a huge blow to the company and

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<v Speaker 1>the people dependent on that that project. So you know,

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<v Speaker 1>all of these different corner cutting moves are catching up,

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<v Speaker 1>I would say, with the Trump administration. Thanks Pat. That's

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<v Speaker 1>Pat Parento of the Vermont Law School. And that's it

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<v Speaker 1>for this edition of Bloomberg Long. I'm June Grossel. Thanks

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<v Speaker 1>so much for listening. This is Bloomberg