1
00:00:03,080 --> 00:00:07,880
Speaker 1: This is Bloomberg Law, with June Brusso from Bloomberg Radio.

2
00:00:09,680 --> 00:00:13,319
Speaker 2: The Board was not heedless of environmental effects here. It

3
00:00:13,440 --> 00:00:17,960
Speaker 2: consulted with dozens of agencies, considered every proximate effect, and

4
00:00:18,160 --> 00:00:22,640
Speaker 2: ordered ninety one mitigation measures. Eighty eight miles of track

5
00:00:22,720 --> 00:00:25,720
Speaker 2: should not require more than thirty six hundred pages of

6
00:00:25,840 --> 00:00:27,160
Speaker 2: environmental analysis.

7
00:00:27,560 --> 00:00:32,440
Speaker 3: Former US Solicitor General Paul Clement argued that federal regulators

8
00:00:32,479 --> 00:00:36,120
Speaker 3: had done enough to consider the environmental impact of a

9
00:00:36,159 --> 00:00:39,760
Speaker 3: proposed eighty eight mile railway in Utah and shouldn't have

10
00:00:39,840 --> 00:00:44,360
Speaker 3: to also consider upstream and downstream impacts that are remote

11
00:00:44,400 --> 00:00:47,560
Speaker 3: in time and space. All parties agree that under the

12
00:00:47,640 --> 00:00:52,080
Speaker 3: National Environmental Policy Act or NEPA, agencies only have to

13
00:00:52,120 --> 00:00:56,640
Speaker 3: consider environmental effects that are reasonably foreseeable. But Justice is

14
00:00:56,680 --> 00:01:01,319
Speaker 3: across the ideological spectrum struggle with how to define that.

15
00:01:01,560 --> 00:01:04,880
Speaker 3: What would be the test here? Justice is Elena Kagan,

16
00:01:05,080 --> 00:01:09,240
Speaker 3: Clarence Thomas, and Chief Justice John Roberts. Here's this eighty

17
00:01:09,280 --> 00:01:13,000
Speaker 3: eight miles of lying and railroads are going to cross

18
00:01:13,040 --> 00:01:17,000
Speaker 3: it and wildfires are going to start as a result.

19
00:01:17,080 --> 00:01:21,800
Speaker 3: Is that within time and space? But how far down

20
00:01:21,920 --> 00:01:25,840
Speaker 3: line or upstream or downstream should you love.

21
00:01:27,360 --> 00:01:29,200
Speaker 4: I have trouble seeing how this is going to work

22
00:01:29,240 --> 00:01:32,880
Speaker 4: out as a practical matter if you're at the agency

23
00:01:33,120 --> 00:01:36,560
Speaker 4: or the council for the private party. I mean, what

24
00:01:36,560 --> 00:01:38,480
Speaker 4: are you going to do. You're going to say, Okay,

25
00:01:38,520 --> 00:01:43,440
Speaker 4: I've identified this possible issue, but I think it's too

26
00:01:43,480 --> 00:01:44,040
Speaker 4: far away.

27
00:01:44,520 --> 00:01:49,080
Speaker 3: Clement did admit that his proposed test wasn't an easy one.

28
00:01:49,120 --> 00:01:51,320
Speaker 2: If I could give you a ten word test that

29
00:01:51,600 --> 00:01:53,920
Speaker 2: took care of every hard case, I mean, you know,

30
00:01:54,000 --> 00:01:55,680
Speaker 2: they give me tenure at Harvard, but.

31
00:01:57,320 --> 00:01:59,560
Speaker 3: I think you know having I'm sure they give you

32
00:01:59,600 --> 00:02:04,000
Speaker 3: that any That last comment coming from Justice Kagan, who

33
00:02:04,080 --> 00:02:06,840
Speaker 3: was once the dean of Harvard Law School. Joining me

34
00:02:06,920 --> 00:02:10,440
Speaker 3: is environmental law expert Pat Parento, a professor at the

35
00:02:10,520 --> 00:02:14,239
Speaker 3: Vermont Law and Graduate School. Pat first tell us about

36
00:02:14,280 --> 00:02:16,520
Speaker 3: the environmental concerns here.

37
00:02:16,960 --> 00:02:23,240
Speaker 1: So this case involves a proposed eighty eight mile rail

38
00:02:23,760 --> 00:02:28,800
Speaker 1: link in the Uinta Basin of Utah, which is huge.

39
00:02:29,120 --> 00:02:32,359
Speaker 1: In fact, it's as big as Maryland, and it's loaded

40
00:02:32,480 --> 00:02:37,480
Speaker 1: with all kinds of fossil fuels, including what's called waxy

41
00:02:37,880 --> 00:02:41,120
Speaker 1: crude oil. I hadn't heard about that term before, but

42
00:02:41,200 --> 00:02:43,240
Speaker 1: that's the product that they want to ship on this

43
00:02:43,440 --> 00:02:47,480
Speaker 1: rail line, and the Surface Transportation Board, which is a

44
00:02:47,520 --> 00:02:51,440
Speaker 1: federal agency within the Department of Transportation, has the authority

45
00:02:51,480 --> 00:02:56,280
Speaker 1: to license or approve construction of this link, which will

46
00:02:56,320 --> 00:03:00,760
Speaker 1: take the oil from the Uina Basin east and connect

47
00:03:00,800 --> 00:03:03,760
Speaker 1: it with the national railroad network and take it all

48
00:03:03,800 --> 00:03:06,040
Speaker 1: the way to the Gulf Coast where it will be

49
00:03:06,120 --> 00:03:10,919
Speaker 1: refined into various products for both domestic and export consumption. Right,

50
00:03:11,200 --> 00:03:16,280
Speaker 1: So the concerns here are the drilling and the extraction

51
00:03:16,680 --> 00:03:19,880
Speaker 1: that's going to occur as a result of providing this

52
00:03:20,360 --> 00:03:24,200
Speaker 1: critical link. Without this railroad, this oil reserve couldn't be exploited.

53
00:03:24,400 --> 00:03:28,480
Speaker 1: So it is a major resource with economic value and

54
00:03:29,200 --> 00:03:33,240
Speaker 1: some jobs undoubtedly and income to Utah and the county.

55
00:03:33,520 --> 00:03:37,120
Speaker 1: The Youth Tribe of Indians is involved in this, and

56
00:03:37,160 --> 00:03:42,240
Speaker 1: they have concerns about the drilling which will potentially impact

57
00:03:42,280 --> 00:03:45,720
Speaker 1: some of their resources. And there's concerns about spills, which

58
00:03:45,720 --> 00:03:49,160
Speaker 1: are inevitable when you're moving oil by rail. There's always

59
00:03:49,240 --> 00:03:54,280
Speaker 1: either chronic low level spills, leakages, or in some cases,

60
00:03:54,280 --> 00:03:56,720
Speaker 1: of course worse than that, derailments, and we've seen that.

61
00:03:56,960 --> 00:04:01,080
Speaker 1: But then of course downstream there's concerns about burning all

62
00:04:01,120 --> 00:04:04,760
Speaker 1: of this spoiled duh and the impacts on climate change,

63
00:04:04,880 --> 00:04:09,160
Speaker 1: but also impacts on the communities around the refineries in

64
00:04:09,200 --> 00:04:13,640
Speaker 1: the Gulf Coast Fort Arthur, Texas being as primary focus

65
00:04:13,680 --> 00:04:18,400
Speaker 1: of this. So a variety of environmental issues typical of

66
00:04:18,440 --> 00:04:20,640
Speaker 1: a major infrastructure project like this.

67
00:04:21,240 --> 00:04:23,520
Speaker 3: So now tell us about the legal issue here.

68
00:04:23,920 --> 00:04:26,960
Speaker 1: So this has to do with the scope of the

69
00:04:27,080 --> 00:04:32,039
Speaker 1: Environmental Impact Statement that the Surface Transportation Board prepared for

70
00:04:32,160 --> 00:04:36,640
Speaker 1: this project. And actually STB, as it's called, did you

71
00:04:36,680 --> 00:04:40,240
Speaker 1: know what you might consider a pretty thorough job. I

72
00:04:40,240 --> 00:04:45,360
Speaker 1: mean it amounts to literally thousands of pages of analysis

73
00:04:45,440 --> 00:04:48,600
Speaker 1: when you look at the whole administrative record. The eis

74
00:04:48,640 --> 00:04:51,719
Speaker 1: itself has many hundreds of pages. I forget it, maybe

75
00:04:51,839 --> 00:04:55,400
Speaker 1: nine hundred, but a very substantial document. And they did

76
00:04:55,480 --> 00:04:59,840
Speaker 1: look at these upstream impacts of drilling and the downstream

77
00:05:00,000 --> 00:05:03,880
Speaker 1: impacts of potential spills and the refinery, but they only

78
00:05:03,920 --> 00:05:07,839
Speaker 1: did so to a certain level. And the DC Circuit,

79
00:05:08,160 --> 00:05:11,279
Speaker 1: when this came to the DC Circuit for review, said,

80
00:05:11,320 --> 00:05:14,800
Speaker 1: you know, STB, you did an okay job, but not

81
00:05:14,880 --> 00:05:18,599
Speaker 1: good enough. You needed to delve more deeply into these

82
00:05:18,760 --> 00:05:22,359
Speaker 1: upstream downstream issues than you did. So what it comes

83
00:05:22,440 --> 00:05:27,279
Speaker 1: down to is how much analysis does NEPA require when

84
00:05:27,320 --> 00:05:31,160
Speaker 1: you have an eighty eight mile project that is approved

85
00:05:31,200 --> 00:05:36,440
Speaker 1: by this agency, the STB, And how far beyond the footprint,

86
00:05:36,680 --> 00:05:39,960
Speaker 1: if you will, of the project does NEPA require you

87
00:05:40,080 --> 00:05:44,400
Speaker 1: to go when you're analyzing these more remote in time

88
00:05:44,480 --> 00:05:47,719
Speaker 1: and distance problems. And that was the focus of the

89
00:05:47,839 --> 00:05:49,600
Speaker 1: argument before the Supreme Court.

90
00:05:49,800 --> 00:05:53,160
Speaker 3: Was there an answer to what kind of test would

91
00:05:53,560 --> 00:05:55,880
Speaker 3: work here? I mean, did anyone have that answer?

92
00:05:56,440 --> 00:05:59,919
Speaker 1: Yes? Paul Clement, who's a former solicitor generally and I

93
00:06:00,120 --> 00:06:03,200
Speaker 1: states for a while, so he's a very accomplished, seasoned

94
00:06:03,320 --> 00:06:07,200
Speaker 1: Supreme Court litigator and frankly did a terrific job representing

95
00:06:07,240 --> 00:06:10,400
Speaker 1: his clients, of course, who want to develop these oil reserves,

96
00:06:10,640 --> 00:06:14,039
Speaker 1: and his tests which he offered and explained over and

97
00:06:14,080 --> 00:06:16,039
Speaker 1: over again to the court. He was up there for

98
00:06:16,080 --> 00:06:19,200
Speaker 1: almost an hour being questioned by almost everybody on the bench,

99
00:06:19,440 --> 00:06:22,479
Speaker 1: and his test was the following. Number one, you do

100
00:06:22,680 --> 00:06:26,800
Speaker 1: take into account how remote in time and space are

101
00:06:26,839 --> 00:06:30,840
Speaker 1: the impacts that you're talking about? Number one? And number two,

102
00:06:31,480 --> 00:06:35,760
Speaker 1: how many of those impacts are actually within the jurisdiction

103
00:06:35,920 --> 00:06:40,159
Speaker 1: and authority of the agency in question, namely STV. His

104
00:06:40,400 --> 00:06:44,120
Speaker 1: answer to both of those was a, the impacts, particularly

105
00:06:44,160 --> 00:06:47,360
Speaker 1: the refinery impacts, which are five hundred miles away or more,

106
00:06:47,600 --> 00:06:51,520
Speaker 1: are way too remote in time and distance and speculative

107
00:06:51,560 --> 00:06:54,159
Speaker 1: in terms of what will actually happen and so forth,

108
00:06:54,240 --> 00:06:58,320
Speaker 1: and they're subject to other agencies jurisdiction, either state agencies

109
00:06:58,440 --> 00:07:02,920
Speaker 1: or federal agencies. Another agency that's involved with rail safety,

110
00:07:03,080 --> 00:07:06,279
Speaker 1: for example, So when you talk about the condition of

111
00:07:06,320 --> 00:07:09,520
Speaker 1: the tracks and whether there's the potential for spills, his

112
00:07:09,720 --> 00:07:13,240
Speaker 1: argument is that's another agency's problem, that's not StB's concern.

113
00:07:13,800 --> 00:07:17,840
Speaker 1: And refinery operations that's again that's subject to Texas state

114
00:07:17,880 --> 00:07:20,600
Speaker 1: regulation for whatever that's worth, as well as you know

115
00:07:20,680 --> 00:07:25,080
Speaker 1: EPA and other agencies. So on his remote in time

116
00:07:25,440 --> 00:07:28,920
Speaker 1: and space argument, he said, these impacts that the DC

117
00:07:29,120 --> 00:07:32,360
Speaker 1: circuit found fault with are not required by NEPA. And

118
00:07:32,480 --> 00:07:35,240
Speaker 1: number two, he said, when you have these other agencies

119
00:07:35,240 --> 00:07:39,280
Speaker 1: with responsibilities and STB does not have any authority to

120
00:07:39,360 --> 00:07:43,880
Speaker 1: control these impacts, then NEPA doesn't require STB to have

121
00:07:43,920 --> 00:07:47,560
Speaker 1: to analyze them. What's the point he said, of analyzing

122
00:07:47,600 --> 00:07:50,040
Speaker 1: all this to the nth degree when they can't do

123
00:07:50,040 --> 00:07:52,280
Speaker 1: anything about it. And so that was his argument.

124
00:07:52,480 --> 00:07:54,040
Speaker 3: Did the challengers have a test.

125
00:07:54,480 --> 00:07:58,840
Speaker 1: Yeah, so the challengers said, well, first of all, NEPA

126
00:07:58,920 --> 00:08:04,320
Speaker 1: has always wired consideration of indirect effects, and these are

127
00:08:04,520 --> 00:08:07,880
Speaker 1: foreseeable indirect effects. And there really wasn't a whole lot

128
00:08:07,880 --> 00:08:13,320
Speaker 1: of argument. Even Clement conceded, these are foreseeable impacts. They

129
00:08:13,320 --> 00:08:18,200
Speaker 1: may be difficult to quantify, although the environmental advocates that

130
00:08:18,360 --> 00:08:21,000
Speaker 1: they weren't difficult to quantify. I mean, you know how

131
00:08:21,080 --> 00:08:24,720
Speaker 1: much oil is going to be extracted, and from that

132
00:08:24,960 --> 00:08:27,239
Speaker 1: you can begin to calculate how much will be refined,

133
00:08:27,400 --> 00:08:29,600
Speaker 1: and what kind of spills might happen and so forth.

134
00:08:29,960 --> 00:08:34,480
Speaker 1: You know, the environmental groups challenging this project where I thought,

135
00:08:34,520 --> 00:08:37,400
Speaker 1: we're able to say, look, what we're asking for here

136
00:08:37,520 --> 00:08:40,640
Speaker 1: is not that unreasonable. It's not that different from what

137
00:08:40,760 --> 00:08:44,040
Speaker 1: courts have required in the past, and it should still

138
00:08:44,040 --> 00:08:46,439
Speaker 1: be the test here that you know, when the agency

139
00:08:46,880 --> 00:08:50,400
Speaker 1: undertakes to do an analysis, it needs to do it right.

140
00:08:50,800 --> 00:08:54,120
Speaker 1: And the response to that, because of course this kept

141
00:08:54,160 --> 00:08:56,400
Speaker 1: going back and forth like a ping pong match, the

142
00:08:56,480 --> 00:09:00,319
Speaker 1: response to that is, well, yeah, but what you're doing

143
00:09:00,480 --> 00:09:05,800
Speaker 1: is punishing the agency STB for agreeing to consider things

144
00:09:05,800 --> 00:09:09,040
Speaker 1: that it really doesn't control, and that can't be right.

145
00:09:09,600 --> 00:09:13,640
Speaker 1: So Clement also suggested that the Court could adopt what's

146
00:09:13,720 --> 00:09:17,600
Speaker 1: known as the harmless error rule. Right. So what he's

147
00:09:17,600 --> 00:09:21,320
Speaker 1: saying is all right, So STB didn't have an initial

148
00:09:21,400 --> 00:09:25,600
Speaker 1: obligation to consider these impacts, but it did so voluntarily,

149
00:09:26,160 --> 00:09:28,599
Speaker 1: and you shouldn't punish them for that, particularly when we

150
00:09:28,679 --> 00:09:31,640
Speaker 1: said when you're flyspecking. That was the term he used

151
00:09:31,880 --> 00:09:36,080
Speaker 1: flyspecking the analysis. So you know, here's what I would

152
00:09:36,120 --> 00:09:39,520
Speaker 1: say as the bottom line. There's no support on the bench,

153
00:09:39,800 --> 00:09:43,880
Speaker 1: either liberals or conservatives, to uphold the DC Circuit. That

154
00:09:44,000 --> 00:09:46,760
Speaker 1: was clear. The liberal wing of the bench asked as

155
00:09:46,800 --> 00:09:50,240
Speaker 1: many difficult questions of the environmental group and the environmental

156
00:09:50,320 --> 00:09:53,400
Speaker 1: advocate as did the conservative justices, in some cases even

157
00:09:53,440 --> 00:09:54,480
Speaker 1: more aggressive.

158
00:09:54,559 --> 00:09:54,719
Speaker 5: Right.

159
00:09:54,840 --> 00:09:57,840
Speaker 1: So they were clearly signaling they were not going to

160
00:09:57,840 --> 00:10:01,480
Speaker 1: be upholding the DC Circuit. And my reading is what

161
00:10:01,600 --> 00:10:04,720
Speaker 1: they were really signaling to the rest of the conservative

162
00:10:04,720 --> 00:10:07,480
Speaker 1: colleagues on the bench was, let's see if we can

163
00:10:07,559 --> 00:10:12,200
Speaker 1: find a basis to overturn the DC Circuit's decision and

164
00:10:12,320 --> 00:10:15,920
Speaker 1: allow this project to proceed that doesn't do any more

165
00:10:16,040 --> 00:10:20,760
Speaker 1: damage to the NEPA process than quote is necessary to

166
00:10:20,800 --> 00:10:23,760
Speaker 1: decide this case. So that's what I'm going to be

167
00:10:23,800 --> 00:10:26,959
Speaker 1: looking for, not what the outcome is. The outcome's clear.

168
00:10:27,240 --> 00:10:29,240
Speaker 1: You know, NEPA has been in front of the Supreme

169
00:10:29,280 --> 00:10:33,880
Speaker 1: Court fifteen different times and has lost every single time.

170
00:10:34,120 --> 00:10:37,400
Speaker 1: This will make the sixteenth time that NPA will have

171
00:10:37,520 --> 00:10:40,959
Speaker 1: lost in the Supreme Court. That seems foreordained to me.

172
00:10:41,360 --> 00:10:44,760
Speaker 1: But the real question is how broadly is the court

173
00:10:44,840 --> 00:10:49,719
Speaker 1: going to go in limiting the scope of NEPA analysis

174
00:10:49,760 --> 00:10:52,800
Speaker 1: In a variety of other cases, this is just you know,

175
00:10:52,960 --> 00:10:57,160
Speaker 1: one eighty eight mile rail line, right, But NEPA applies

176
00:10:57,200 --> 00:11:01,080
Speaker 1: to a huge number of federal actions, of course. So

177
00:11:01,520 --> 00:11:03,240
Speaker 1: that's what I'm going to be looking for. Will they

178
00:11:03,240 --> 00:11:07,640
Speaker 1: write a narrow opinion, overturn the DC circuit, let this

179
00:11:07,760 --> 00:11:10,520
Speaker 1: project be finished, and leave it the rest of it alone.

180
00:11:10,640 --> 00:11:12,840
Speaker 3: Coming up next on the Bloomberg Law Show, I'll continue

181
00:11:12,920 --> 00:11:16,600
Speaker 3: this conversation with Professor Pat Parento of the Vermont Law

182
00:11:16,640 --> 00:11:20,640
Speaker 3: and Graduate School. What happens to environmental reviews under the

183
00:11:20,760 --> 00:11:25,800
Speaker 3: upcoming Trump administration. I'm June Grosso and you're listening to Bloomberg.

184
00:11:26,880 --> 00:11:30,240
Speaker 3: Supreme Court seems almost certain to limit the scope of

185
00:11:30,400 --> 00:11:34,400
Speaker 3: environmental impact studies. The question is how the Court will

186
00:11:34,400 --> 00:11:39,280
Speaker 3: do so. The justices at oral arguments overwhelmingly suggested that

187
00:11:39,320 --> 00:11:42,600
Speaker 3: the US Court of Appeals for the DC Circuit went

188
00:11:42,720 --> 00:11:46,120
Speaker 3: too far when it required federal regulators to look at

189
00:11:46,160 --> 00:11:50,240
Speaker 3: potential effects on communities on the Gulf Coast in considering

190
00:11:50,240 --> 00:11:53,800
Speaker 3: whether to approve an eighty eight mile railway in Utah.

191
00:11:54,080 --> 00:11:56,680
Speaker 3: I've been talking to Professor Pat Parento of the Vermont

192
00:11:56,760 --> 00:11:59,320
Speaker 3: Law and Graduate School. Did it seem like some of

193
00:11:59,360 --> 00:12:02,320
Speaker 3: the justice is thought that they didn't need to adopt

194
00:12:02,360 --> 00:12:06,160
Speaker 3: a new test, that they could clarify the old one instead.

195
00:12:06,760 --> 00:12:09,880
Speaker 3: Justice amy Cony Barrett said maybe the Court should just

196
00:12:09,960 --> 00:12:13,760
Speaker 3: say what we've said before, but maybe put a little

197
00:12:13,800 --> 00:12:15,600
Speaker 3: bit more flesh on the bone.

198
00:12:16,080 --> 00:12:21,040
Speaker 1: Yes. In fact, she and Justice Kavanaugh both stressed that

199
00:12:21,240 --> 00:12:23,800
Speaker 1: when you have a question like this of the scope

200
00:12:24,080 --> 00:12:28,400
Speaker 1: of NIPA analysis and it's tied to the authority of

201
00:12:28,440 --> 00:12:32,640
Speaker 1: the agency in question, right, that you should defer to

202
00:12:32,720 --> 00:12:38,760
Speaker 1: the agency's determination of what's an appropriate scope, and only

203
00:12:38,880 --> 00:12:43,559
Speaker 1: where that determination can be shown to be arbitrary and capricious.

204
00:12:43,720 --> 00:12:47,280
Speaker 1: That's the sort of standard review test under the Administrative

205
00:12:47,280 --> 00:12:50,440
Speaker 1: Procedure active course. Only where you can show that you

206
00:12:50,480 --> 00:12:55,400
Speaker 1: know the agency made basically interrational determination of scope. Should

207
00:12:55,400 --> 00:12:59,680
Speaker 1: the court step in, Kavanaugh said, in light of the

208
00:12:59,760 --> 00:13:03,559
Speaker 1: re sense passage of what's called the Builder Bill by Congress,

209
00:13:03,559 --> 00:13:06,800
Speaker 1: this is the Infrastructure Bill, And in that bill they

210
00:13:06,840 --> 00:13:10,760
Speaker 1: actually amended NEPA in a variety of ways, including putting

211
00:13:10,760 --> 00:13:14,120
Speaker 1: a page limit on environmental impact statements of one hundred

212
00:13:14,160 --> 00:13:17,800
Speaker 1: and fifty pages and putting a time limit on how

213
00:13:17,920 --> 00:13:21,360
Speaker 1: long the NEPA process could take, namely one year for

214
00:13:21,559 --> 00:13:24,480
Speaker 1: certain kinds of important projects. And this kind of a

215
00:13:24,480 --> 00:13:27,960
Speaker 1: project would be included as a critical sort of energy

216
00:13:28,000 --> 00:13:32,400
Speaker 1: infrastructure project. Right, So Kavanaugh referred to that passage of

217
00:13:32,400 --> 00:13:35,520
Speaker 1: that law and said, you know, there's no way agencies

218
00:13:35,600 --> 00:13:39,199
Speaker 1: can do everything that the DC Circuit is requiring them

219
00:13:39,200 --> 00:13:41,640
Speaker 1: to do in one hundred and fifty pages in a

220
00:13:41,720 --> 00:13:45,440
Speaker 1: year's timeframe. So he said the court should be giving

221
00:13:45,760 --> 00:13:50,360
Speaker 1: different squared was the term he used to agency interpretations

222
00:13:50,360 --> 00:13:53,720
Speaker 1: of the scope of their analysis. So, yeah, I think

223
00:13:53,880 --> 00:13:57,480
Speaker 1: if this case, you know, comes out doing minimal damage,

224
00:13:57,559 --> 00:13:59,960
Speaker 1: let's put it that way to NEPA, it will be

225
00:14:00,360 --> 00:14:04,160
Speaker 1: for the Court to refer to this new congressional act,

226
00:14:04,160 --> 00:14:08,560
Speaker 1: the Builder Bill, and emphasized that courts should not be

227
00:14:08,760 --> 00:14:12,840
Speaker 1: second guessing agencies when they determine how far they're going

228
00:14:12,880 --> 00:14:17,440
Speaker 1: to go, and analyzing these indirect effects, taking into account

229
00:14:17,559 --> 00:14:20,360
Speaker 1: time and distance and authority and so forth. So I

230
00:14:20,440 --> 00:14:25,040
Speaker 1: can anticipate seeing a decision that lays out more clearly

231
00:14:25,760 --> 00:14:28,640
Speaker 1: the role of the courts in reviewing cases like this

232
00:14:29,040 --> 00:14:33,080
Speaker 1: and limiting judicial review, but maybe not going so far

233
00:14:33,600 --> 00:14:37,120
Speaker 1: as to adopt Clements tests, which would be a very

234
00:14:37,120 --> 00:14:41,080
Speaker 1: significant narrowing of NIPA analysis, and one in which the

235
00:14:41,080 --> 00:14:44,440
Speaker 1: Biden administration, of course, in their argument because they're the

236
00:14:44,480 --> 00:14:47,640
Speaker 1: defendant the STB is the defendant in the case, did

237
00:14:47,680 --> 00:14:51,400
Speaker 1: not agree with Clement's tests. Edwin Needler, also a former

238
00:14:51,440 --> 00:14:55,400
Speaker 1: Solicitor General, argued the case for the Biden administration and

239
00:14:55,680 --> 00:15:00,560
Speaker 1: tried his best to distinguish his approach and the Biden

240
00:15:00,560 --> 00:15:05,640
Speaker 1: administration's approach from what Clement was proposing. But frankly, that

241
00:15:05,680 --> 00:15:08,240
Speaker 1: doesn't matter, does it. In light of who's coming to

242
00:15:08,320 --> 00:15:11,960
Speaker 1: office in January. The views of the Biden administration will

243
00:15:11,960 --> 00:15:14,000
Speaker 1: have no bearing whatsoever going forward.

244
00:15:14,240 --> 00:15:19,680
Speaker 3: So just back to Kavanaugh and the deference squared, he said,

245
00:15:19,680 --> 00:15:21,800
Speaker 3: it seems to me the difference of the courts has

246
00:15:21,840 --> 00:15:24,520
Speaker 3: to be huge with respect to how the agencies think

247
00:15:24,560 --> 00:15:27,480
Speaker 3: about the scope of what they're going to consider. How

248
00:15:27,520 --> 00:15:31,440
Speaker 3: does that fit in with this court that last term

249
00:15:31,600 --> 00:15:36,160
Speaker 3: throughout the Chevron doctrine, and you know, deference to agencies

250
00:15:36,280 --> 00:15:41,080
Speaker 3: interpretations of ambiguous statutes. Now they're willing to give deference.

251
00:15:42,680 --> 00:15:46,280
Speaker 1: Well, you know, they're all saying consistency is the hob

252
00:15:46,320 --> 00:15:52,920
Speaker 1: goblin of small minds. So yeah, there's a little bit

253
00:15:53,000 --> 00:15:57,520
Speaker 1: of inconsistency there, right, So we will defer to agencies

254
00:15:57,960 --> 00:16:02,960
Speaker 1: when we like what they're doing, but not differ to

255
00:16:03,000 --> 00:16:05,640
Speaker 1: them when we don't. I'm not going to go completely

256
00:16:05,680 --> 00:16:10,440
Speaker 1: cynical on that, although I'm tempted, but certainly there's tension

257
00:16:10,880 --> 00:16:13,440
Speaker 1: here between when you're going to give an agency difference

258
00:16:13,480 --> 00:16:16,640
Speaker 1: and when you're not. So I would say this that

259
00:16:17,080 --> 00:16:19,800
Speaker 1: when it comes to this narrower question of what's the

260
00:16:19,840 --> 00:16:23,880
Speaker 1: scope of analysis with these indirect effects, these are you know,

261
00:16:24,320 --> 00:16:29,520
Speaker 1: admittedly there's some speculation about exactly what these effects are

262
00:16:29,560 --> 00:16:32,280
Speaker 1: going to be and how they're going to be handled

263
00:16:32,280 --> 00:16:35,760
Speaker 1: by a variety of different agencies that have authority. So

264
00:16:36,240 --> 00:16:38,600
Speaker 1: you know, this is a gray area of nep law.

265
00:16:38,640 --> 00:16:42,040
Speaker 1: I have to say, and you know, reasonable people, I

266
00:16:42,120 --> 00:16:45,440
Speaker 1: suppose can disagree about how far you should go. If

267
00:16:45,440 --> 00:16:48,720
Speaker 1: I'm arguing the other side of this, what I'm going

268
00:16:48,800 --> 00:16:52,760
Speaker 1: to say is, look, STD has a very clear binary

269
00:16:52,840 --> 00:16:57,160
Speaker 1: decision here, right, either approve the new rail line or not.

270
00:16:57,520 --> 00:17:00,640
Speaker 1: In the final analysis, It's a yes or no question.

271
00:17:01,400 --> 00:17:05,240
Speaker 1: And to answer that question, you have to balance the benefits,

272
00:17:05,400 --> 00:17:10,520
Speaker 1: economic and otherwise of the proposed rail line and the costs,

273
00:17:10,640 --> 00:17:15,120
Speaker 1: including environmental costs. And I would argue including climates costs. Right,

274
00:17:15,760 --> 00:17:18,960
Speaker 1: So I can make the argument that this is perfectly

275
00:17:19,000 --> 00:17:22,879
Speaker 1: reasonable to require STV to look at lots of things

276
00:17:22,880 --> 00:17:26,160
Speaker 1: that it doesn't control, because the one thing it does

277
00:17:26,280 --> 00:17:29,359
Speaker 1: control is whether to allow this project to be built,

278
00:17:29,600 --> 00:17:33,720
Speaker 1: and that turns on water. It's net and overall benefits

279
00:17:33,800 --> 00:17:36,719
Speaker 1: versus its costs. Right, So you can make an argument,

280
00:17:37,119 --> 00:17:40,399
Speaker 1: I think, And I've made these arguments in my past

281
00:17:40,480 --> 00:17:43,359
Speaker 1: life because I wrote an odd article called small Handles.

282
00:17:43,520 --> 00:17:48,280
Speaker 1: When do federal regulations privatize actions by others? And so

283
00:17:48,440 --> 00:17:51,560
Speaker 1: I've made the arguments that it doesn't really matter what

284
00:17:51,720 --> 00:17:55,480
Speaker 1: the scope of the agency's authority is. The question is

285
00:17:55,560 --> 00:17:59,679
Speaker 1: should they approve this project or not? And that requires

286
00:17:59,720 --> 00:18:04,000
Speaker 1: looking at as many things as you can reasonably consider,

287
00:18:04,080 --> 00:18:08,239
Speaker 1: not looking at things that are purely speculative or you know,

288
00:18:08,400 --> 00:18:11,639
Speaker 1: angels on ahead of a pen kind of calculations. But

289
00:18:12,320 --> 00:18:16,439
Speaker 1: those things that you can reasonably foresee and calculate and

290
00:18:16,600 --> 00:18:20,760
Speaker 1: way in the balance should be weighed. But that's not

291
00:18:20,880 --> 00:18:22,600
Speaker 1: where this case is going to come out. I'm just

292
00:18:22,640 --> 00:18:26,760
Speaker 1: telling you an alternative view of what NIPA might require

293
00:18:26,840 --> 00:18:30,320
Speaker 1: of an agency like this, even though it doesn't control

294
00:18:30,680 --> 00:18:33,440
Speaker 1: everything that happens as a result of its decision.

295
00:18:33,960 --> 00:18:38,040
Speaker 3: So we should mention that Justice Neil Gorsitch recused himself

296
00:18:38,760 --> 00:18:39,520
Speaker 3: just last week.

297
00:18:39,880 --> 00:18:43,000
Speaker 1: Yes, so he did not say why. The speculation is

298
00:18:43,000 --> 00:18:46,080
Speaker 1: that he or his family may have a financial interest

299
00:18:46,119 --> 00:18:48,480
Speaker 1: in one of the parties that would benefit from this

300
00:18:48,640 --> 00:18:52,439
Speaker 1: rail line. That's the speculation. But given credit, he was

301
00:18:52,520 --> 00:18:56,520
Speaker 1: asked to refuse by the respondents who were, you know,

302
00:18:56,680 --> 00:18:59,960
Speaker 1: the environmental concerns here, and he did, so, you know,

303
00:19:00,000 --> 00:19:02,920
Speaker 1: we kudo to Neio Gorsics for that. I would say I.

304
00:19:02,840 --> 00:19:08,040
Speaker 3: Would too, especially considering how many times Justices Alito and

305
00:19:08,080 --> 00:19:10,560
Speaker 3: Thomas have been asked to recuse and they haven't.

306
00:19:11,040 --> 00:19:14,040
Speaker 1: Yeah, at least one has paid attention to the sort

307
00:19:14,080 --> 00:19:16,840
Speaker 1: of concern about ethics on the bench. But there's still

308
00:19:16,920 --> 00:19:20,879
Speaker 1: five there's still five Conservatives, so there's clearly five votes

309
00:19:21,280 --> 00:19:24,320
Speaker 1: to overturn the DC circuit. As I say, the question

310
00:19:24,480 --> 00:19:26,240
Speaker 1: is how are they going to do it and will

311
00:19:26,280 --> 00:19:29,080
Speaker 1: the Liberals have some influence on that? Can they convince

312
00:19:29,440 --> 00:19:33,720
Speaker 1: their colleagues to limit the reach of whatever decision they make?

313
00:19:34,000 --> 00:19:38,600
Speaker 3: So you mentioned the upcoming Trump administration. Do you think

314
00:19:38,680 --> 00:19:42,960
Speaker 3: that they will just ignore any climate action at the

315
00:19:43,000 --> 00:19:46,040
Speaker 3: federal level? I mean, what's the thought about how they

316
00:19:46,119 --> 00:19:47,800
Speaker 3: might approach the environment.

317
00:19:48,520 --> 00:19:50,920
Speaker 1: Well, you know, we might be happy if they did

318
00:19:51,040 --> 00:19:53,199
Speaker 1: just ignore it, but they're not going to just ignore it.

319
00:19:53,680 --> 00:19:55,760
Speaker 1: They're going to turn the clock back. They're going to

320
00:19:55,800 --> 00:19:58,760
Speaker 1: reverse everything Biden did. They're going to try to claw

321
00:19:58,840 --> 00:20:01,639
Speaker 1: back money under the Inflation Reduction Act. They're going to

322
00:20:01,680 --> 00:20:05,560
Speaker 1: repeal the power plant rule, the tail pipe rule, the

323
00:20:05,560 --> 00:20:09,320
Speaker 1: methane rule. They're going to require maximum oil and gas

324
00:20:09,400 --> 00:20:13,240
Speaker 1: leasing both offshore and onshore on public lands right down

325
00:20:13,280 --> 00:20:16,960
Speaker 1: the list. What they're proposing to do, and they're putting

326
00:20:16,960 --> 00:20:19,640
Speaker 1: the people in place to do it, is to turn

327
00:20:19,720 --> 00:20:23,680
Speaker 1: us completely around and go in the absolute wrong direction.

328
00:20:24,280 --> 00:20:28,480
Speaker 1: Instead of facilitating the transition to a clean energy, clean

329
00:20:28,520 --> 00:20:34,120
Speaker 1: transportation economy, which is well underway right instead of facilitating that,

330
00:20:34,400 --> 00:20:37,280
Speaker 1: they're going to throw up roadblocks and try to stop it.

331
00:20:37,280 --> 00:20:41,240
Speaker 1: It's really, frankly, to use a not technical term, insane

332
00:20:41,400 --> 00:20:45,360
Speaker 1: what they're talking about. It doesn't make sense, economically, environmentally,

333
00:20:45,400 --> 00:20:48,720
Speaker 1: public health. None of what they're talking about makes sense.

334
00:20:48,880 --> 00:20:51,480
Speaker 1: Do some of these programs need improvement, of course they

335
00:20:51,520 --> 00:20:55,119
Speaker 1: always do. Should Congress update some of these statutes to

336
00:20:55,200 --> 00:20:58,159
Speaker 1: take account of new ways of dealing with these problems,

337
00:20:58,200 --> 00:21:00,960
Speaker 1: of course they should. Should the federal government put some

338
00:21:01,160 --> 00:21:06,920
Speaker 1: money into helping industry clean up, Yes, and so on.

339
00:21:07,000 --> 00:21:09,160
Speaker 1: But that's not what we're going to see. I'm sure

340
00:21:09,200 --> 00:21:10,120
Speaker 1: we're not going to see that.

341
00:21:10,480 --> 00:21:13,560
Speaker 3: Can they do that in four years if they pay

342
00:21:13,600 --> 00:21:17,800
Speaker 3: attention to the requirements of the law, the Administrative Procedure Act,

343
00:21:17,840 --> 00:21:18,359
Speaker 3: et cetera.

344
00:21:19,280 --> 00:21:21,760
Speaker 1: Well they didn't the last time, and Trump won. Of course,

345
00:21:21,760 --> 00:21:25,000
Speaker 1: they lost most of their cases, almost eighty percent of

346
00:21:25,040 --> 00:21:28,480
Speaker 1: the challenges. That this time around, their trying looks to

347
00:21:28,600 --> 00:21:31,680
Speaker 1: learn from their mistakes, we'll see. You know, the top

348
00:21:31,800 --> 00:21:34,400
Speaker 1: level people they're talking about are not capable. I don't

349
00:21:34,440 --> 00:21:37,600
Speaker 1: think of implementing what Trump is talking about. So the

350
00:21:37,640 --> 00:21:39,920
Speaker 1: real question is going to be who are they bringing

351
00:21:39,960 --> 00:21:44,600
Speaker 1: in in the you know, second and third tiers of EPA,

352
00:21:44,720 --> 00:21:48,040
Speaker 1: Department of Interior, Department of Energy, and so on. That

353
00:21:48,240 --> 00:21:51,840
Speaker 1: level you know of the agencies is where the action is.

354
00:21:52,200 --> 00:21:55,320
Speaker 1: And you know, if they get really capable people who

355
00:21:55,359 --> 00:21:59,280
Speaker 1: have some experience in government with these agencies, then I

356
00:21:59,359 --> 00:22:02,160
Speaker 1: do worry. And if they start, as I think they will,

357
00:22:02,240 --> 00:22:06,080
Speaker 1: start driving out some of the career professionals, particularly for

358
00:22:06,200 --> 00:22:09,760
Speaker 1: my old agency at EPA, people I know and admire greatly.

359
00:22:10,080 --> 00:22:13,720
Speaker 1: If those people have had enough and are second tired

360
00:22:13,720 --> 00:22:17,000
Speaker 1: of being abused and threatened, which they are being threatened,

361
00:22:17,119 --> 00:22:19,359
Speaker 1: they're going to leave. And we're seeing that already. I'm

362
00:22:19,400 --> 00:22:21,919
Speaker 1: seeing it because they're showing up on our doorstep asking

363
00:22:21,960 --> 00:22:25,040
Speaker 1: for jobs at Vermont Law School, right, So that's a

364
00:22:25,040 --> 00:22:28,760
Speaker 1: big concern. If they drive out the real professionals from

365
00:22:28,800 --> 00:22:32,760
Speaker 1: these agencies and replace them with quote Trump loyalists, we're

366
00:22:32,760 --> 00:22:36,879
Speaker 1: in serious trouble. Then we're talking about permanent damage to

367
00:22:37,000 --> 00:22:40,720
Speaker 1: some of these institutions. That does worry me greatly, even

368
00:22:40,800 --> 00:22:42,960
Speaker 1: more than what they're going to try to do with

369
00:22:43,320 --> 00:22:47,040
Speaker 1: regulatory rollbacks, because we do have courts out there still,

370
00:22:47,359 --> 00:22:49,680
Speaker 1: there are still good judges out there who are not

371
00:22:49,720 --> 00:22:52,720
Speaker 1: going to let them run rampant over the rule of

372
00:22:52,840 --> 00:22:55,600
Speaker 1: law and just do whatever they want, regardless of what

373
00:22:55,720 --> 00:22:59,040
Speaker 1: the law and the APA requires. If they try to

374
00:22:59,080 --> 00:23:01,960
Speaker 1: do what they did or they're gonna get stopped, They're

375
00:23:02,000 --> 00:23:05,840
Speaker 1: gonna get slowed down. And in this case, delay is everything.

376
00:23:05,920 --> 00:23:09,439
Speaker 1: The more that you can delay what Trump is trying

377
00:23:09,480 --> 00:23:12,400
Speaker 1: to do, the more he becomes a real lane duck.

378
00:23:12,920 --> 00:23:15,720
Speaker 1: And then that the midterm elections kick in, and then

379
00:23:15,760 --> 00:23:19,760
Speaker 1: we see if maybe there's a turning point that will

380
00:23:19,880 --> 00:23:24,359
Speaker 1: further limit the damage that Trump is threatening against environmental programs.

381
00:23:24,760 --> 00:23:27,800
Speaker 3: President Joe Biden has said nobody can reverse the clean

382
00:23:27,880 --> 00:23:31,640
Speaker 3: energy solutions that are already underway in this country. We'll

383
00:23:31,680 --> 00:23:34,680
Speaker 3: see what happens come January. Thanks so much, Pat. That's

384
00:23:34,680 --> 00:23:38,000
Speaker 3: Professor Pat Parento of the Vermont Law and Graduate School.

385
00:23:38,240 --> 00:23:40,720
Speaker 3: Coming up next on the Bloomberg Law Show. Why is

386
00:23:40,720 --> 00:23:44,160
Speaker 3: there an uptick in divorces after the Holidays? I'm June

387
00:23:44,160 --> 00:23:48,000
Speaker 3: Grosso and you're listening to Bloomberg. 'tis the season, and

388
00:23:48,080 --> 00:23:51,840
Speaker 3: you might notice an uptick in engagements of happy couples,

389
00:23:52,040 --> 00:23:55,640
Speaker 3: But once the tree comes down, it's an uptick in divorces.

390
00:23:55,680 --> 00:23:58,680
Speaker 3: You'll likely see. Joining me is an attorney who handles

391
00:23:58,760 --> 00:24:02,560
Speaker 3: matrimonial and family law matters Lauren Crane. She's a partner

392
00:24:02,560 --> 00:24:05,560
Speaker 3: at Bender and Crane, a female owned boutique law firm

393
00:24:05,600 --> 00:24:08,400
Speaker 3: in New York. So is the holiday season a popular

394
00:24:08,480 --> 00:24:10,320
Speaker 3: time for people to get engaged.

395
00:24:10,560 --> 00:24:13,480
Speaker 5: A lot of people do get engaged in the holiday season.

396
00:24:13,680 --> 00:24:17,879
Speaker 5: And typically people who do get engaged, they look forward

397
00:24:17,920 --> 00:24:22,080
Speaker 5: to getting married and they start to plan forward, and

398
00:24:22,359 --> 00:24:25,800
Speaker 5: it's really a celebratory time. But people who are getting

399
00:24:25,840 --> 00:24:28,800
Speaker 5: engaged think about whether they get engaged on a holiday

400
00:24:28,920 --> 00:24:31,520
Speaker 5: or not. So if you get engaged and you give

401
00:24:31,640 --> 00:24:34,879
Speaker 5: someone an engagement ring on a holiday versus on any

402
00:24:34,920 --> 00:24:39,120
Speaker 5: other day, if you actually don't get married, the ring

403
00:24:39,480 --> 00:24:42,399
Speaker 5: and the purpose of the ring could become subject to

404
00:24:42,760 --> 00:24:46,840
Speaker 5: a hearing. If one person says they were given a

405
00:24:46,880 --> 00:24:50,159
Speaker 5: gift of an engagement ring on Christmas or New Year's

406
00:24:50,880 --> 00:24:53,720
Speaker 5: versus another day, then it would be the person who

407
00:24:53,760 --> 00:24:55,400
Speaker 5: gave the ring it would be their property.

408
00:24:56,280 --> 00:25:00,760
Speaker 3: So after the engagement, the question of a prenup comes up.

409
00:25:01,240 --> 00:25:04,280
Speaker 3: So a young couple starting out, neither of them has

410
00:25:04,400 --> 00:25:07,960
Speaker 3: any substantial assets, do they really need a prenup?

411
00:25:08,520 --> 00:25:12,960
Speaker 5: So it also depends on whether they have multi generational wealth.

412
00:25:13,040 --> 00:25:16,080
Speaker 5: So a lot of times, people who haven't started working

413
00:25:16,160 --> 00:25:19,440
Speaker 5: yet but their parents have money, they set up trusts,

414
00:25:19,600 --> 00:25:22,840
Speaker 5: and those trusts can be the issue of litigation long

415
00:25:22,920 --> 00:25:25,439
Speaker 5: term and a divorce, at least in New York. So

416
00:25:26,040 --> 00:25:29,600
Speaker 5: if you're going to inherit money or you're a beneficiary

417
00:25:29,600 --> 00:25:33,400
Speaker 5: of a trust, then you should look into a prenap. Also,

418
00:25:33,560 --> 00:25:36,359
Speaker 5: if you have interest in a business that hasn't yet

419
00:25:36,400 --> 00:25:39,440
Speaker 5: taken off, but you've been creating this business long before

420
00:25:39,480 --> 00:25:43,720
Speaker 5: you got engaged. That business you've put sweat equity into

421
00:25:44,000 --> 00:25:46,080
Speaker 5: and you may want to protect that in the case

422
00:25:46,080 --> 00:25:46,680
Speaker 5: of a divorce.

423
00:25:47,200 --> 00:25:49,560
Speaker 3: Let's say you have two people who are in graduate

424
00:25:49,600 --> 00:25:53,600
Speaker 3: school or law school. Yeah, no assets, do they need

425
00:25:53,640 --> 00:25:54,200
Speaker 3: a prenup?

426
00:25:54,680 --> 00:25:58,040
Speaker 5: So in that case, again, I don't have so many

427
00:25:58,040 --> 00:26:03,000
Speaker 5: facts about their ass that's outside of being in school.

428
00:26:03,359 --> 00:26:06,520
Speaker 5: But if you already have a case where the parties

429
00:26:06,600 --> 00:26:08,800
Speaker 5: one of them wants to work long term, one of

430
00:26:08,840 --> 00:26:11,040
Speaker 5: them doesn't want to work, you know, there's lots of

431
00:26:11,080 --> 00:26:13,280
Speaker 5: decisions you're going to make through a marriage, and so

432
00:26:13,480 --> 00:26:16,640
Speaker 5: sometimes it's even easier just to set it out before

433
00:26:16,680 --> 00:26:18,720
Speaker 5: you get married and set it out in a prenup.

434
00:26:19,040 --> 00:26:22,000
Speaker 5: We've had that a few times in our office.

435
00:26:22,520 --> 00:26:24,040
Speaker 3: And what does a prenup cover.

436
00:26:24,320 --> 00:26:28,119
Speaker 5: Generally, so, a prenup can cover anything that the couple

437
00:26:28,200 --> 00:26:31,800
Speaker 5: wants as long as it doesn't cover child's support or

438
00:26:31,920 --> 00:26:35,800
Speaker 5: child's custody. So it can cover, at least in New York,

439
00:26:36,240 --> 00:26:40,880
Speaker 5: spousal support, equitable distribution, which is how you would divide

440
00:26:40,880 --> 00:26:45,800
Speaker 5: your assets once you get married. Can cover council fees

441
00:26:46,359 --> 00:26:48,919
Speaker 5: in the event of the divorce, whether one person is

442
00:26:48,960 --> 00:26:52,000
Speaker 5: waiving their right to receive counsel fees in the long term.

443
00:26:52,320 --> 00:26:55,960
Speaker 5: It can also cover state rights upon a person's death,

444
00:26:56,320 --> 00:26:59,240
Speaker 5: so it can cover a array of issues.

445
00:27:00,119 --> 00:27:04,400
Speaker 3: In the movies, prenups cause problems. In real life does

446
00:27:04,440 --> 00:27:05,400
Speaker 3: it cause problems?

447
00:27:05,840 --> 00:27:09,800
Speaker 5: So prenups sometimes do cause problems, but remember these are

448
00:27:09,840 --> 00:27:14,159
Speaker 5: problems that people would face once they get married. People

449
00:27:14,520 --> 00:27:18,000
Speaker 5: go into a marriage or a wedding and they envision

450
00:27:18,040 --> 00:27:20,640
Speaker 5: their wedding day, but they don't envision the next day

451
00:27:20,760 --> 00:27:23,560
Speaker 5: when they have to budget to pay for a house

452
00:27:24,000 --> 00:27:28,800
Speaker 5: or a vacation or any of your ongoing expenses. So

453
00:27:28,880 --> 00:27:31,080
Speaker 5: although you look forward to the wedding, you don't think

454
00:27:31,080 --> 00:27:33,720
Speaker 5: about the next steps that once you're married, and then,

455
00:27:34,320 --> 00:27:37,919
Speaker 5: in the unfortunate stance that you actually do get divorced,

456
00:27:38,280 --> 00:27:42,320
Speaker 5: then they don't think about that. But prenups are conversations

457
00:27:42,320 --> 00:27:44,840
Speaker 5: that couples are going to have in the long term,

458
00:27:44,880 --> 00:27:47,240
Speaker 5: whether they have it before they get married or after

459
00:27:47,280 --> 00:27:47,960
Speaker 5: they get married.

460
00:27:48,400 --> 00:27:51,000
Speaker 3: What about getting a post nup instead of a pre nup?

461
00:27:51,560 --> 00:27:54,600
Speaker 5: So we've done a few post nups in our office,

462
00:27:54,840 --> 00:28:00,919
Speaker 5: and they sometimes are post nups just to sity. You know,

463
00:28:01,000 --> 00:28:04,320
Speaker 5: how you envision certain property that you acquire during the

464
00:28:04,400 --> 00:28:09,399
Speaker 5: marriage would proceed. But there's a lot more documents that

465
00:28:09,480 --> 00:28:12,760
Speaker 5: have to be exchanged because you're already married, versus a

466
00:28:12,800 --> 00:28:15,480
Speaker 5: prenuptial agreement when you haven't yet been married.

467
00:28:15,920 --> 00:28:17,720
Speaker 3: So is there any point in doing a post up

468
00:28:17,840 --> 00:28:19,360
Speaker 3: or just wait for the divorce?

469
00:28:20,080 --> 00:28:23,400
Speaker 5: So in some instances a postnup would work. If someone's

470
00:28:23,440 --> 00:28:27,120
Speaker 5: gifting the money to a child, a parent is gifting

471
00:28:27,160 --> 00:28:29,600
Speaker 5: money to one of the spouses and they want to

472
00:28:29,640 --> 00:28:31,960
Speaker 5: buy a house, and the parents want to ensure that

473
00:28:31,960 --> 00:28:34,520
Speaker 5: that house goes to the person they're gifting in the

474
00:28:34,560 --> 00:28:38,720
Speaker 5: event of a divorce. Or sometimes you know, people have

475
00:28:38,800 --> 00:28:41,960
Speaker 5: resets in their marriage, so they do a ponent agreement,

476
00:28:42,360 --> 00:28:46,200
Speaker 5: but it doesn't automatically lead to a divorce. So it's

477
00:28:46,360 --> 00:28:47,680
Speaker 5: very different than a divorce.

478
00:28:48,200 --> 00:28:53,560
Speaker 3: Do you find that after the holidays people split up more? So?

479
00:28:53,640 --> 00:28:56,720
Speaker 5: I think that sometimes when you go from the Thanksgiving

480
00:28:56,760 --> 00:28:59,440
Speaker 5: holiday to the Christmas holiday, people are spending a lot

481
00:28:59,600 --> 00:29:04,280
Speaker 5: more family time, and so sometimes that can awaken them

482
00:29:04,320 --> 00:29:07,360
Speaker 5: to realize that maybe they do want to get a divorce.

483
00:29:07,600 --> 00:29:11,200
Speaker 5: And before they would get a divorce, you should always

484
00:29:11,240 --> 00:29:14,320
Speaker 5: consult with you know, one or two attorneys and make

485
00:29:14,360 --> 00:29:17,720
Speaker 5: sure you meet an attorney that you like and you

486
00:29:17,840 --> 00:29:21,560
Speaker 5: fit with, and then you can proceed to plan. A

487
00:29:21,640 --> 00:29:25,800
Speaker 5: divorce doesn't happen overnight because remember you're married, so you

488
00:29:25,800 --> 00:29:27,800
Speaker 5: know a lot of people who have kids, they don't

489
00:29:27,840 --> 00:29:31,600
Speaker 5: want to ruin a Christmas holiday or a vacation that

490
00:29:31,640 --> 00:29:34,160
Speaker 5: they have planned during that time. So typically we see

491
00:29:34,160 --> 00:29:38,920
Speaker 5: an uptick of calls to discuss the possibility of having

492
00:29:38,920 --> 00:29:42,800
Speaker 5: a divorce after Thanksgiving, and then people tend to file

493
00:29:42,880 --> 00:29:44,640
Speaker 5: for divorce after Christmas.

494
00:29:45,080 --> 00:29:49,240
Speaker 3: Do more people file for divorce when it's a boom

495
00:29:49,240 --> 00:29:52,959
Speaker 3: economy or more people file in a recession? If you know?

496
00:29:53,880 --> 00:29:58,800
Speaker 5: So in New York it doesn't matter in our particular

497
00:29:58,920 --> 00:30:05,320
Speaker 5: cases because typically people have large wealth in Manhattan. Our

498
00:30:05,360 --> 00:30:10,480
Speaker 5: typical clients, you know, our private school parents who can

499
00:30:10,560 --> 00:30:13,200
Speaker 5: afford the lifestyle in New York, so a boom or

500
00:30:13,240 --> 00:30:16,200
Speaker 5: a bus economy doesn't really affect our business in that way.

501
00:30:16,880 --> 00:30:20,400
Speaker 3: I've heard this term gray divorce boom. What is that?

502
00:30:21,040 --> 00:30:25,000
Speaker 5: So that's the after the kids have left the house,

503
00:30:25,760 --> 00:30:29,360
Speaker 5: when they've graduated and you know, their kids have gotten married.

504
00:30:29,560 --> 00:30:32,360
Speaker 5: Some families are starting more families are starting to get

505
00:30:32,360 --> 00:30:37,440
Speaker 5: divorced later in life. And the reason is is people

506
00:30:37,680 --> 00:30:41,520
Speaker 5: tend to reevaluate their lives later. People I think are

507
00:30:41,600 --> 00:30:44,960
Speaker 5: living longer and they've come to the realization that they

508
00:30:45,480 --> 00:30:48,280
Speaker 5: want to die married to this person, so they want

509
00:30:48,360 --> 00:30:50,480
Speaker 5: to get divorced later in life, even though it may

510
00:30:50,560 --> 00:30:51,600
Speaker 5: be more complicated.

511
00:30:52,120 --> 00:30:54,360
Speaker 3: You think it's more complicated because if the kids are

512
00:30:54,360 --> 00:30:58,320
Speaker 3: out of the house, doesn't that take one big factor,

513
00:30:58,400 --> 00:31:01,280
Speaker 3: you know, one troublesome fact out of the divorce.

514
00:31:01,880 --> 00:31:05,600
Speaker 5: Yes, But then you have a much longer term marriage.

515
00:31:05,680 --> 00:31:08,880
Speaker 5: So then there's an issue of spousal support if one

516
00:31:08,920 --> 00:31:12,360
Speaker 5: person didn't work, and how long they would pay spousal

517
00:31:12,440 --> 00:31:16,720
Speaker 5: support for. And also, as you're married longer, your assets

518
00:31:16,760 --> 00:31:19,680
Speaker 5: become more and more entangled, so it may not be

519
00:31:19,760 --> 00:31:22,959
Speaker 5: so easy to piece apart all of your assets. You know,

520
00:31:23,000 --> 00:31:27,120
Speaker 5: you may have investments in private equity funds that you

521
00:31:27,200 --> 00:31:30,440
Speaker 5: can't easily retrieve. It can't happen a short term marriage,

522
00:31:30,440 --> 00:31:33,240
Speaker 5: but in a longer term marriage, the longer you're married,

523
00:31:33,240 --> 00:31:35,360
Speaker 5: the more entwined your assets are.

524
00:31:35,800 --> 00:31:38,720
Speaker 3: In most divorces, is it the children that are the

525
00:31:39,080 --> 00:31:40,680
Speaker 3: biggest issue or.

526
00:31:40,600 --> 00:31:44,000
Speaker 5: Is it money, So that really depends on the case.

527
00:31:44,320 --> 00:31:47,320
Speaker 5: A lot of times parents are able to come together

528
00:31:47,400 --> 00:31:50,040
Speaker 5: and realize that they're separating, and they try and protect

529
00:31:50,120 --> 00:31:55,560
Speaker 5: their children from the being intricately involved in their divorces,

530
00:31:55,560 --> 00:31:58,600
Speaker 5: such as getting an attorney for the child or testifying

531
00:31:58,640 --> 00:32:01,880
Speaker 5: before a judge and closed chamber. So they choose to

532
00:32:01,920 --> 00:32:05,600
Speaker 5: settle that issue very quickly through either a mediate or

533
00:32:05,600 --> 00:32:09,280
Speaker 5: some use a family therapist, and so that issue can

534
00:32:09,320 --> 00:32:13,320
Speaker 5: be taken off the table. However, in cases of high conflicts,

535
00:32:13,320 --> 00:32:16,920
Speaker 5: where maybe there's abuse or the people never were able

536
00:32:16,960 --> 00:32:21,440
Speaker 5: to communicate very well together, that can make custody much

537
00:32:21,520 --> 00:32:26,200
Speaker 5: more involved and it can last much longer, so it

538
00:32:26,280 --> 00:32:31,240
Speaker 5: can become much more contested. As they say, however, it

539
00:32:31,400 --> 00:32:36,160
Speaker 5: also involves money because children cost money, so at times

540
00:32:36,440 --> 00:32:40,040
Speaker 5: they're intertwined. So if one parent has more money, or

541
00:32:40,080 --> 00:32:43,800
Speaker 5: one parent has less money, or they earn equally, it

542
00:32:43,840 --> 00:32:46,240
Speaker 5: can be how expenses are paid for the kids, so

543
00:32:46,280 --> 00:32:47,880
Speaker 5: it can become more complicated.

544
00:32:49,080 --> 00:32:53,480
Speaker 3: Have you seen any changes in divorce, any patterns that

545
00:32:53,520 --> 00:32:56,520
Speaker 3: are different in the last let's say ten years or so.

546
00:32:56,800 --> 00:32:59,080
Speaker 3: Or is divorce still divorce?

547
00:33:00,880 --> 00:33:05,480
Speaker 5: Divorce is still divorce no matter what time or what date.

548
00:33:06,560 --> 00:33:11,560
Speaker 5: But divorce is still messy. And however, it's really guided

549
00:33:11,680 --> 00:33:15,560
Speaker 5: by the two people who are married, and they should

550
00:33:15,600 --> 00:33:20,000
Speaker 5: try and work together. Cases do tend to linger longer

551
00:33:20,080 --> 00:33:21,240
Speaker 5: in the court system.

552
00:33:21,360 --> 00:33:21,680
Speaker 1: Now.

553
00:33:22,080 --> 00:33:25,120
Speaker 5: The divorces right now in New York can take between

554
00:33:25,160 --> 00:33:29,440
Speaker 5: two and six years to actually finalize. So I would

555
00:33:29,520 --> 00:33:32,320
Speaker 5: say that that is the only biggest changes that now

556
00:33:32,360 --> 00:33:35,560
Speaker 5: it's taking significantly longer. I don't know if it's due

557
00:33:35,640 --> 00:33:39,280
Speaker 5: to more filings or the reason that they do tend

558
00:33:39,280 --> 00:33:40,120
Speaker 5: to take longer.

559
00:33:40,400 --> 00:33:43,040
Speaker 3: That's a long time to wait for a divorce. So

560
00:33:43,120 --> 00:33:45,680
Speaker 3: I also wanted to talk to you about no fault divorce.

561
00:33:46,480 --> 00:33:48,560
Speaker 3: How many states have no fault divorce?

562
00:33:49,600 --> 00:33:52,120
Speaker 5: All fifty states have no fault divorce. New York was

563
00:33:52,160 --> 00:33:54,240
Speaker 5: the last to get no fault divorce and that was

564
00:33:54,280 --> 00:33:55,240
Speaker 5: in twenty ten.

565
00:33:55,640 --> 00:33:59,880
Speaker 3: And are some states moving or thinking about or trying

566
00:34:00,000 --> 00:34:02,880
Speaker 3: in some way to get rid of no fault divorce.

567
00:34:04,000 --> 00:34:06,760
Speaker 5: I hope they're not because no fault divorce would only

568
00:34:06,800 --> 00:34:11,320
Speaker 5: clog court systems more. And also when I was practicing

569
00:34:11,400 --> 00:34:14,720
Speaker 5: before twenty ten, we had one case that was going

570
00:34:14,800 --> 00:34:17,680
Speaker 5: to go to trial over a false divorce. Now, in

571
00:34:17,760 --> 00:34:20,560
Speaker 5: a false divorce, you can have a jury trial, unlike

572
00:34:20,680 --> 00:34:24,440
Speaker 5: just a divorce matter, where a jury could decide whether

573
00:34:24,640 --> 00:34:28,040
Speaker 5: one person can prove that they have the grounds as

574
00:34:28,080 --> 00:34:31,200
Speaker 5: they call it, to get a divorce, such as cruel

575
00:34:31,239 --> 00:34:36,040
Speaker 5: and usual punishment, stuff like that. They can they can

576
00:34:36,160 --> 00:34:39,879
Speaker 5: try and prove that they were abused, and it can

577
00:34:40,280 --> 00:34:43,600
Speaker 5: retrigger the person who has been abused. It's a horrible

578
00:34:43,640 --> 00:34:46,520
Speaker 5: process fault divorce, if you think about it. If a

579
00:34:46,560 --> 00:34:50,040
Speaker 5: person has to prove that the other that their spouse

580
00:34:50,160 --> 00:34:53,400
Speaker 5: was horrible to them during their marriage, and they have children,

581
00:34:53,520 --> 00:34:57,040
Speaker 5: no matter the age of the children, these two people

582
00:34:57,320 --> 00:35:00,719
Speaker 5: are eventually going to sit at their children's and they

583
00:35:00,719 --> 00:35:04,600
Speaker 5: are going to remember everything that was testified at that trial,

584
00:35:04,920 --> 00:35:07,200
Speaker 5: which will have nothing to do with their children, but

585
00:35:07,480 --> 00:35:10,200
Speaker 5: just how they treated each other during their marriage, which

586
00:35:10,200 --> 00:35:13,320
Speaker 5: would prevent them from actually working together for the benefit

587
00:35:13,360 --> 00:35:15,200
Speaker 5: of their kids and their grandkids.

588
00:35:15,440 --> 00:35:17,319
Speaker 3: That's one change in the Law. I guess we can

589
00:35:17,360 --> 00:35:20,280
Speaker 3: applaud thanks so much for coming on the show. Lauren.

590
00:35:20,760 --> 00:35:24,279
Speaker 3: That's Lauren Crane of Benderin Crane. And that's it for

591
00:35:24,280 --> 00:35:27,319
Speaker 3: this edition of the Bloomberg Law Podcast. Remember you can

592
00:35:27,360 --> 00:35:30,280
Speaker 3: always get the latest legal news by subscribing and listening

593
00:35:30,320 --> 00:35:34,040
Speaker 3: to the show on Apple Podcasts, Spotify, and at Bloomberg

594
00:35:34,080 --> 00:35:38,120
Speaker 3: dot com, slash podcast, slash Law. I'm June Grosso and

595
00:35:38,280 --> 00:35:39,520
Speaker 3: this is Bloomberg