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Speaker 1: You're listening to Bloomberg law. I'm June also at thirteen

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Speaker 1: minutes before the hour. The Northern spotted owl nests in

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Speaker 1: the tops of trees in old growth forests. Timber harvesting

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Speaker 1: and land conversions resulted in the loss of the owl's habitat,

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Speaker 1: and it was listed as an endangered species in In

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Speaker 1: twenty twelve, federal officials designated more than nine and a

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Speaker 1: half million acres in California, Oregon in Washington as essential

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Speaker 1: for the owl survival. But the owl has lost the

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Speaker 1: latest round in the long running legal fight with lumber

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Speaker 1: companies over its habitat. The d C Court of Appeals

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Speaker 1: has ruled that the lumber companies can challenge the owls

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Speaker 1: designated critical habitat because they may lose a source of

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Speaker 1: timber supply and suffer economic harm. My guest is Charles Warren,

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Speaker 1: head of the environmental practice at Cramer Levin, neft Talis

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Speaker 1: and Frankel Chuck. Did the court factor in the steep

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Speaker 1: decline in the population of the spotted owl due to logging?

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Speaker 1: How did it come to its decision? Really on this

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Speaker 1: June What they did was this was a standing decision.

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Speaker 1: It really was not a decision on the merits, and

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Speaker 1: so what standing is Under the Constitution Article free, which

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Speaker 1: creates the court system, there's something called a case in

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Speaker 1: controversy requirement, which means that there actually has to be

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Speaker 1: a case in controversy and the person bringing the case

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Speaker 1: has to have standing to bring it. And that means

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Speaker 1: generally that there's a concrete harm or particularized harm to

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Speaker 1: that person or injury to that person, and that it's

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Speaker 1: caused by the challenged conduct, and that the requested relief

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Speaker 1: is likely to redress the injury. So that was the

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Speaker 1: issue that the court was really talking about, because the

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Speaker 1: district court judge essentially said there's no standing for these

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Speaker 1: organizations to bring this lawsuit, and the DC Circuit Court

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Speaker 1: of Appeals basically said, no, we find that there is

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Speaker 1: standing because the main plaintiff was the trade association the

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Speaker 1: American Forest Resource Council, and a number of members of

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Speaker 1: that council essentially said, through you know, an affidavit and

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Speaker 1: a declaration by the head of the American Forest Resource

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Speaker 1: Council said that look, we depend on these lands for

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Speaker 1: our livelihood and if you know, if we're restricted in

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Speaker 1: the kinds of lumber and the amount of lumber we

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Speaker 1: can get from these lands. It's going to really hurt

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Speaker 1: us economically. And the court essentially said, yes, we think

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Speaker 1: that's a reasonable assumption to make in this case, and

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Speaker 1: they will be hurt by this, and so therefore they

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Speaker 1: do have standing to bring the lawsuit. They didn't talk

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Speaker 1: about the merits of the case. I mean, they seem

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Speaker 1: to say, yeah, they're certainly they have an economic injury here,

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Speaker 1: and they sent it back to the district court to

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Speaker 1: talk about the merits and then they'll get into of

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Speaker 1: the issues. You know, this is critical habitat and should

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Speaker 1: this be taken off, you know, out of this program.

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Speaker 1: And because clear cutting, which is a technique that the

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Speaker 1: lumber companies use, is something that really does tremendous amount

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Speaker 1: of damage to the habitat. So I'm not sure you

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Speaker 1: can predict what the final decision will be based on

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Speaker 1: this because this was only standing. The court was only

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Speaker 1: ruling on standing, but the unanimous opinion stressed how large

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Speaker 1: the designated critical habitat is. Judge Brett Kavanaugh wrote that

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Speaker 1: it was roughly twice the size of the state of

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Speaker 1: New Jersey. Will that have an impact on the case

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Speaker 1: going forward. There was sort of a little twist to this,

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Speaker 1: which is interesting. There were nine and a half million

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Speaker 1: acres that they wanted to designate as critical habitat, which

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Speaker 1: is a big area obviously, but you know, within that

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Speaker 1: land their lands that they call matrix land, and there

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Speaker 1: were more than three million acres of those and their

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Speaker 1: lands that were previously set aside by the law to

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Speaker 1: provide a steady supply of lumber for local lumber based economy,

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Speaker 1: like you know, in these areas. So I could see

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Speaker 1: the lower court taking a look and saying, well, maybe

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Speaker 1: we have to look more carefully at these three million

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Speaker 1: acres that at the rest of the six and a

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Speaker 1: half million acres which are not matrix lands. There's a

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Speaker 1: way to sort of split the case up a little

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Speaker 1: bit once they get down there. But I think you're right.

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Speaker 1: I think the issue of how much acreage was involved

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Speaker 1: could have an issue one way or another in the

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Speaker 1: lower court. The Trump administration has been rolling back environmental protections.

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Speaker 1: Trump said the rules are out of control. Is there

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Speaker 1: any possibility that the federal government may change the designated

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Speaker 1: area of the spotted owl itself or not even defend

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Speaker 1: the lawsuit? Yes, they could there's some danger. Although it's

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Speaker 1: already back to the district court and it's ongoing, they

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Speaker 1: probably will defend that, but they could certainly make a

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Speaker 1: change or attempt to make a change. But it's not

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Speaker 1: so easy once you make one of these critical habitat

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Speaker 1: designations and you lay out all your reasons, you know,

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Speaker 1: if you're gonna make a change, you have to come

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Speaker 1: up with some very cogent reasons for making that change,

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Speaker 1: and that's always subject again to challenge and lawsuits. So

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Speaker 1: but they could certainly attempt to do that. I mean,

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Speaker 1: it would be in keeping with some of the stuff

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Speaker 1: that they've done in the e p A area where

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Speaker 1: they're saying they're going to reconsider and go back and

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Speaker 1: try to redo these regulations, like in the clean power

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Speaker 1: plant situation. So how big a loss is this for

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Speaker 1: environmentalists and for the spotted owl. Well, you know obviously

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Speaker 1: this right now, this case, I wouldn't say it's a

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Speaker 1: big loss because the merits haven't been decided, but it

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Speaker 1: would have been a big win if they had upheld

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Speaker 1: the first judge's standing opinion, and that would have thrown

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Speaker 1: the case out. And it's unlikely that it's spreme Court

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Speaker 1: would have taken it at this point beyond the d

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Speaker 1: C circuit. So it is a loss certainly, and we

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Speaker 1: don't know exactly yet how big a loss it'll be.

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Speaker 1: Because habitat is important for the spot it's owl. You know,

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Speaker 1: this is obviously a big area which they thought you

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Speaker 1: needed to have an effective critical habitat for them, and

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Speaker 1: if you lose some or all of that, that could

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Speaker 1: have a big impact on the spotted owl. But I

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Speaker 1: think once you get to the lower court, the impact

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Speaker 1: on the spotted owl is gonna come into play a

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Speaker 1: lot more, and that's where we can't be sure how

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Speaker 1: it's gonna end up, Chuck. The case of the loggers

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Speaker 1: versus the Northern spotted owl seems to echo other battles

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Speaker 1: where business faces off against the conservation of endangered species.

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Speaker 1: The farm Bureau versus the gray wolf, the solar power

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Speaker 1: industry versus the threatened desert tortoise, and oil and gas

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Speaker 1: drillers versus the sage crouse. How do they weigh these? Well?

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Speaker 1: I think the most important thing weren't you put a

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Speaker 1: species on the endangered or threatened species list? And the

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Speaker 1: question is what's the next move? And the next move

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Speaker 1: gets into the area of designated critical habitat. That's what

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Speaker 1: we have in this case, that's we have in all

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Speaker 1: these other cases that you just talked about, you know,

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Speaker 1: whether it's the gray woolf or the desert tortoise or

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Speaker 1: the sage grouse, etcetera. Right, So, a lot of times though,

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Speaker 1: there are ways to come up with compromises and the

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Speaker 1: question of how much area is designated as critical habitat,

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Speaker 1: and you know, working together with some of the states

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Speaker 1: and other groups, they come up with efforts. Like in

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Speaker 1: the sage gross area, the States have promised they're going

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Speaker 1: to do a lot of work to try to save

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Speaker 1: the sage grouse and stuff like that, and so the

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Speaker 1: FEDS I think I backed off a little in that area.

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Speaker 1: And I think the desert tortoise is actually a very

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Speaker 1: interesting situation because there you have renewable energy projects, right

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Speaker 1: like these solar projects that they take up huge areas

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Speaker 1: and they just srupt the travel path out of the

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Speaker 1: tortoise and that's a big issue. And you know, the

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Speaker 1: question is maybe you can design these systems better that

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Speaker 1: would allow the tortoises to have a way through that

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Speaker 1: would not affect them so much, and I mean, there

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Speaker 1: are ways to deal with these, and I should say

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Speaker 1: that there are a number of members of Congress, particularly

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Speaker 1: in the House, that would like to amend the Endangered

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Speaker 1: Species Act and really render it fairly useless. I don't

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Speaker 1: know that they're going to be successful in that effort,

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Speaker 1: but I think they're going to make a renewed push

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Speaker 1: for that. How effective has the Endangered Species Act been.

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Speaker 1: I think it's been reasonably effective. One of the things

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Speaker 1: you have to look at is that the Endangered Species

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Speaker 1: Act hasn't been invoked as much as it could be

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Speaker 1: because it can have very serious economic consequences. But it's

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Speaker 1: been effective. I think it's helped really relieve the pressure

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Speaker 1: on a lot of threatened species, and I think that

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Speaker 1: people have worked hard to you know, make accommodations and

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Speaker 1: to consider what impacts that it might have on certain

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Speaker 1: businesses and other things. I mean, it's it's a trade off,

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Speaker 1: but I think it's been reasonably effective, and I think

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Speaker 1: part of the efforts to repeal it are that it

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Speaker 1: has been pretty effective, and I think people feel that

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Speaker 1: it's something that ought to be changed because it has

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Speaker 1: caused an impact, or at least they say an impact

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Speaker 1: in a lot of areas and affective businesses. Adversely, However,

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Speaker 1: one thing in the history of environmental protection that has

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Speaker 1: to be looked at is that, in general, businesses have

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Speaker 1: said that you're going to have dire consequences from the

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Speaker 1: Clean Air Act, the Clean Water Act, Endangered Species Act,

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Speaker 1: and for the most part, overwhelmingly it hasn't turned out

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Speaker 1: to be as bad as they've said it's going to be.

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Speaker 1: So I think history is actually on the side of

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Speaker 1: environmental protection, that it does work, and that the impact

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Speaker 1: on business and industry and the economy is not nearly

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Speaker 1: what is predicted by the doomsayers, and the American bald

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Speaker 1: eagle is back in business absolutely. There's a lot of

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Speaker 1: things that was directly related to the banning of d

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Speaker 1: d T, which had such a strong impact on things

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Speaker 1: like the bald eagle and another predator type birds. And

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Speaker 1: when they banned d d T, and as it got

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Speaker 1: more and more out of the environment, you saw these

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Speaker 1: birds making a big comeback. Now after a Trump administration delay,

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Speaker 1: the rusty patch bumblebee was put on the endangered species

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Speaker 1: list on March one. Did a lawsuit filed challenging the

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Speaker 1: delay have anything to do with that, yes, I believe

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Speaker 1: it did. I think that it pressured them to make

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Speaker 1: a decision. And this administration is not always consistent in

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Speaker 1: the way it does things, and I think to some

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Speaker 1: people's surprise, they did go forward with it. And you know,

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Speaker 1: part of the problem is that, you know, once the

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Speaker 1: agency is on its way to designating something, they prepared

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Speaker 1: an extensive record of it. And now if you make

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Speaker 1: a you turn and suddenly say, well, we have the

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Speaker 1: successive record. Now we decided we're not going to do it,

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Speaker 1: And the question is, all right, why did you make

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Speaker 1: that change? And it's often not easy to justify that

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Speaker 1: you turn. That's Charles Warren, a partner at Kramer Levin.

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Speaker 1: That's it for this edition of Bloomberg Law. I'm June

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Speaker 1: Galso this is Bloomberg