WEBVTT - SCOTUS May Narrow Environmental Impact Studies 0:00:03.080 --> 0:00:07.880 This is Bloomberg Law, with June Brusso from Bloomberg Radio. 0:00:09.680 --> 0:00:13.319 The Board was not heedless of environmental effects here. It 0:00:13.440 --> 0:00:17.960 consulted with dozens of agencies, considered every proximate effect, and 0:00:18.160 --> 0:00:22.640 ordered ninety one mitigation measures. Eighty eight miles of track 0:00:22.720 --> 0:00:25.720 should not require more than thirty six hundred pages of 0:00:25.840 --> 0:00:27.160 environmental analysis. 0:00:27.560 --> 0:00:32.440 Former US Solicitor General Paul Clement argued that federal regulators 0:00:32.479 --> 0:00:36.120 had done enough to consider the environmental impact of a 0:00:36.159 --> 0:00:39.760 proposed eighty eight mile railway in Utah and shouldn't have 0:00:39.840 --> 0:00:44.360 to also consider upstream and downstream impacts that are remote 0:00:44.400 --> 0:00:47.560 in time and space. All parties agree that under the 0:00:47.640 --> 0:00:52.080 National Environmental Policy Act or NEPA, agencies only have to 0:00:52.120 --> 0:00:56.640 consider environmental effects that are reasonably foreseeable. But Justice is 0:00:56.680 --> 0:01:01.319 across the ideological spectrum struggle with how to define that. 0:01:01.560 --> 0:01:04.880 What would be the test here? Justice is Elena Kagan, 0:01:05.080 --> 0:01:09.240 Clarence Thomas, and Chief Justice John Roberts. Here's this eighty 0:01:09.280 --> 0:01:13.000 eight miles of lying and railroads are going to cross 0:01:13.040 --> 0:01:17.000 it and wildfires are going to start as a result. 0:01:17.080 --> 0:01:21.800 Is that within time and space? But how far down 0:01:21.920 --> 0:01:25.840 line or upstream or downstream should you love. 0:01:27.360 --> 0:01:29.200 I have trouble seeing how this is going to work 0:01:29.240 --> 0:01:32.880 out as a practical matter if you're at the agency 0:01:33.120 --> 0:01:36.560 or the council for the private party. I mean, what 0:01:36.560 --> 0:01:38.480 are you going to do. You're going to say, Okay, 0:01:38.520 --> 0:01:43.440 I've identified this possible issue, but I think it's too 0:01:43.480 --> 0:01:44.040 far away. 0:01:44.520 --> 0:01:49.080 Clement did admit that his proposed test wasn't an easy one. 0:01:49.120 --> 0:01:51.320 If I could give you a ten word test that 0:01:51.600 --> 0:01:53.920 took care of every hard case, I mean, you know, 0:01:54.000 --> 0:01:55.680 they give me tenure at Harvard, but. 0:01:57.320 --> 0:01:59.560 I think you know having I'm sure they give you 0:01:59.600 --> 0:02:04.000 that any That last comment coming from Justice Kagan, who 0:02:04.080 --> 0:02:06.840 was once the dean of Harvard Law School. Joining me 0:02:06.920 --> 0:02:10.440 is environmental law expert Pat Parento, a professor at the 0:02:10.520 --> 0:02:14.239 Vermont Law and Graduate School. Pat first tell us about 0:02:14.280 --> 0:02:16.520 the environmental concerns here. 0:02:16.960 --> 0:02:23.240 So this case involves a proposed eighty eight mile rail 0:02:23.760 --> 0:02:28.800 link in the Uinta Basin of Utah, which is huge. 0:02:29.120 --> 0:02:32.359 In fact, it's as big as Maryland, and it's loaded 0:02:32.480 --> 0:02:37.480 with all kinds of fossil fuels, including what's called waxy 0:02:37.880 --> 0:02:41.120 crude oil. I hadn't heard about that term before, but 0:02:41.200 --> 0:02:43.240 that's the product that they want to ship on this 0:02:43.440 --> 0:02:47.480 rail line, and the Surface Transportation Board, which is a 0:02:47.520 --> 0:02:51.440 federal agency within the Department of Transportation, has the authority 0:02:51.480 --> 0:02:56.280 to license or approve construction of this link, which will 0:02:56.320 --> 0:03:00.760 take the oil from the Uina Basin east and connect 0:03:00.800 --> 0:03:03.760 it with the national railroad network and take it all 0:03:03.800 --> 0:03:06.040 the way to the Gulf Coast where it will be 0:03:06.120 --> 0:03:10.919 refined into various products for both domestic and export consumption. Right, 0:03:11.200 --> 0:03:16.280 So the concerns here are the drilling and the extraction 0:03:16.680 --> 0:03:19.880 that's going to occur as a result of providing this 0:03:20.360 --> 0:03:24.200 critical link. Without this railroad, this oil reserve couldn't be exploited. 0:03:24.400 --> 0:03:28.480 So it is a major resource with economic value and 0:03:29.200 --> 0:03:33.240 some jobs undoubtedly and income to Utah and the county. 0:03:33.520 --> 0:03:37.120 The Youth Tribe of Indians is involved in this, and 0:03:37.160 --> 0:03:42.240 they have concerns about the drilling which will potentially impact 0:03:42.280 --> 0:03:45.720 some of their resources. And there's concerns about spills, which 0:03:45.720 --> 0:03:49.160 are inevitable when you're moving oil by rail. There's always 0:03:49.240 --> 0:03:54.280 either chronic low level spills, leakages, or in some cases, 0:03:54.280 --> 0:03:56.720 of course worse than that, derailments, and we've seen that. 0:03:56.960 --> 0:04:01.080 But then of course downstream there's concerns about burning all 0:04:01.120 --> 0:04:04.760 of this spoiled duh and the impacts on climate change, 0:04:04.880 --> 0:04:09.160 but also impacts on the communities around the refineries in 0:04:09.200 --> 0:04:13.640 the Gulf Coast Fort Arthur, Texas being as primary focus 0:04:13.680 --> 0:04:18.400 of this. So a variety of environmental issues typical of 0:04:18.440 --> 0:04:20.640 a major infrastructure project like this. 0:04:21.240 --> 0:04:23.520 So now tell us about the legal issue here. 0:04:23.920 --> 0:04:26.960 So this has to do with the scope of the 0:04:27.080 --> 0:04:32.039 Environmental Impact Statement that the Surface Transportation Board prepared for 0:04:32.160 --> 0:04:36.640 this project. And actually STB, as it's called, did you 0:04:36.680 --> 0:04:40.240 know what you might consider a pretty thorough job. I 0:04:40.240 --> 0:04:45.360 mean it amounts to literally thousands of pages of analysis 0:04:45.440 --> 0:04:48.600 when you look at the whole administrative record. The eis 0:04:48.640 --> 0:04:51.719 itself has many hundreds of pages. I forget it, maybe 0:04:51.839 --> 0:04:55.400 nine hundred, but a very substantial document. And they did 0:04:55.480 --> 0:04:59.840 look at these upstream impacts of drilling and the downstream 0:05:00.000 --> 0:05:03.880 impacts of potential spills and the refinery, but they only 0:05:03.920 --> 0:05:07.839 did so to a certain level. And the DC Circuit, 0:05:08.160 --> 0:05:11.279 when this came to the DC Circuit for review, said, 0:05:11.320 --> 0:05:14.800 you know, STB, you did an okay job, but not 0:05:14.880 --> 0:05:18.599 good enough. You needed to delve more deeply into these 0:05:18.760 --> 0:05:22.359 upstream downstream issues than you did. So what it comes 0:05:22.440 --> 0:05:27.279 down to is how much analysis does NEPA require when 0:05:27.320 --> 0:05:31.160 you have an eighty eight mile project that is approved 0:05:31.200 --> 0:05:36.440 by this agency, the STB, And how far beyond the footprint, 0:05:36.680 --> 0:05:39.960 if you will, of the project does NEPA require you 0:05:40.080 --> 0:05:44.400 to go when you're analyzing these more remote in time 0:05:44.480 --> 0:05:47.719 and distance problems. And that was the focus of the 0:05:47.839 --> 0:05:49.600 argument before the Supreme Court. 0:05:49.800 --> 0:05:53.160 Was there an answer to what kind of test would 0:05:53.560 --> 0:05:55.880 work here? I mean, did anyone have that answer? 0:05:56.440 --> 0:05:59.919 Yes? Paul Clement, who's a former solicitor generally and I 0:06:00.120 --> 0:06:03.200 states for a while, so he's a very accomplished, seasoned 0:06:03.320 --> 0:06:07.200 Supreme Court litigator and frankly did a terrific job representing 0:06:07.240 --> 0:06:10.400 his clients, of course, who want to develop these oil reserves, 0:06:10.640 --> 0:06:14.039 and his tests which he offered and explained over and 0:06:14.080 --> 0:06:16.039 over again to the court. He was up there for 0:06:16.080 --> 0:06:19.200 almost an hour being questioned by almost everybody on the bench, 0:06:19.440 --> 0:06:22.479 and his test was the following. Number one, you do 0:06:22.680 --> 0:06:26.800 take into account how remote in time and space are 0:06:26.839 --> 0:06:30.840 the impacts that you're talking about? Number one? And number two, 0:06:31.480 --> 0:06:35.760 how many of those impacts are actually within the jurisdiction 0:06:35.920 --> 0:06:40.159 and authority of the agency in question, namely STV. His 0:06:40.400 --> 0:06:44.120 answer to both of those was a, the impacts, particularly 0:06:44.160 --> 0:06:47.360 the refinery impacts, which are five hundred miles away or more, 0:06:47.600 --> 0:06:51.520 are way too remote in time and distance and speculative 0:06:51.560 --> 0:06:54.159 in terms of what will actually happen and so forth, 0:06:54.240 --> 0:06:58.320 and they're subject to other agencies jurisdiction, either state agencies 0:06:58.440 --> 0:07:02.920 or federal agencies. Another agency that's involved with rail safety, 0:07:03.080 --> 0:07:06.279 for example, So when you talk about the condition of 0:07:06.320 --> 0:07:09.520 the tracks and whether there's the potential for spills, his 0:07:09.720 --> 0:07:13.240 argument is that's another agency's problem, that's not StB's concern. 0:07:13.800 --> 0:07:17.840 And refinery operations that's again that's subject to Texas state 0:07:17.880 --> 0:07:20.600 regulation for whatever that's worth, as well as you know 0:07:20.680 --> 0:07:25.080 EPA and other agencies. So on his remote in time 0:07:25.440 --> 0:07:28.920 and space argument, he said, these impacts that the DC 0:07:29.120 --> 0:07:32.360 circuit found fault with are not required by NEPA. And 0:07:32.480 --> 0:07:35.240 number two, he said, when you have these other agencies 0:07:35.240 --> 0:07:39.280 with responsibilities and STB does not have any authority to 0:07:39.360 --> 0:07:43.880 control these impacts, then NEPA doesn't require STB to have 0:07:43.920 --> 0:07:47.560 to analyze them. What's the point he said, of analyzing 0:07:47.600 --> 0:07:50.040 all this to the nth degree when they can't do 0:07:50.040 --> 0:07:52.280 anything about it. And so that was his argument. 0:07:52.480 --> 0:07:54.040 Did the challengers have a test. 0:07:54.480 --> 0:07:58.840 Yeah, so the challengers said, well, first of all, NEPA 0:07:58.920 --> 0:08:04.320 has always wired consideration of indirect effects, and these are 0:08:04.520 --> 0:08:07.880 foreseeable indirect effects. And there really wasn't a whole lot 0:08:07.880 --> 0:08:13.320 of argument. Even Clement conceded, these are foreseeable impacts. They 0:08:13.320 --> 0:08:18.200 may be difficult to quantify, although the environmental advocates that 0:08:18.360 --> 0:08:21.000 they weren't difficult to quantify. I mean, you know how 0:08:21.080 --> 0:08:24.720 much oil is going to be extracted, and from that 0:08:24.960 --> 0:08:27.239 you can begin to calculate how much will be refined, 0:08:27.400 --> 0:08:29.600 and what kind of spills might happen and so forth. 0:08:29.960 --> 0:08:34.480 You know, the environmental groups challenging this project where I thought, 0:08:34.520 --> 0:08:37.400 we're able to say, look, what we're asking for here 0:08:37.520 --> 0:08:40.640 is not that unreasonable. It's not that different from what 0:08:40.760 --> 0:08:44.040 courts have required in the past, and it should still 0:08:44.040 --> 0:08:46.439 be the test here that you know, when the agency 0:08:46.880 --> 0:08:50.400 undertakes to do an analysis, it needs to do it right. 0:08:50.800 --> 0:08:54.120 And the response to that, because of course this kept 0:08:54.160 --> 0:08:56.400 going back and forth like a ping pong match, the 0:08:56.480 --> 0:09:00.319 response to that is, well, yeah, but what you're doing 0:09:00.480 --> 0:09:05.800 is punishing the agency STB for agreeing to consider things 0:09:05.800 --> 0:09:09.040 that it really doesn't control, and that can't be right. 0:09:09.600 --> 0:09:13.640 So Clement also suggested that the Court could adopt what's 0:09:13.720 --> 0:09:17.600 known as the harmless error rule. Right. So what he's 0:09:17.600 --> 0:09:21.320 saying is all right, So STB didn't have an initial 0:09:21.400 --> 0:09:25.600 obligation to consider these impacts, but it did so voluntarily, 0:09:26.160 --> 0:09:28.599 and you shouldn't punish them for that, particularly when we 0:09:28.679 --> 0:09:31.640 said when you're flyspecking. That was the term he used 0:09:31.880 --> 0:09:36.080 flyspecking the analysis. So you know, here's what I would 0:09:36.120 --> 0:09:39.520 say as the bottom line. There's no support on the bench, 0:09:39.800 --> 0:09:43.880 either liberals or conservatives, to uphold the DC Circuit. That 0:09:44.000 --> 0:09:46.760 was clear. The liberal wing of the bench asked as 0:09:46.800 --> 0:09:50.240 many difficult questions of the environmental group and the environmental 0:09:50.320 --> 0:09:53.400 advocate as did the conservative justices, in some cases even 0:09:53.440 --> 0:09:54.480 more aggressive. 0:09:54.559 --> 0:09:54.719 Right. 0:09:54.840 --> 0:09:57.840 So they were clearly signaling they were not going to 0:09:57.840 --> 0:10:01.480 be upholding the DC Circuit. And my reading is what 0:10:01.600 --> 0:10:04.720 they were really signaling to the rest of the conservative 0:10:04.720 --> 0:10:07.480 colleagues on the bench was, let's see if we can 0:10:07.559 --> 0:10:12.200 find a basis to overturn the DC Circuit's decision and 0:10:12.320 --> 0:10:15.920 allow this project to proceed that doesn't do any more 0:10:16.040 --> 0:10:20.760 damage to the NEPA process than quote is necessary to 0:10:20.800 --> 0:10:23.760 decide this case. So that's what I'm going to be 0:10:23.800 --> 0:10:26.959 looking for, not what the outcome is. The outcome's clear. 0:10:27.240 --> 0:10:29.240 You know, NEPA has been in front of the Supreme 0:10:29.280 --> 0:10:33.880 Court fifteen different times and has lost every single time. 0:10:34.120 --> 0:10:37.400 This will make the sixteenth time that NPA will have 0:10:37.520 --> 0:10:40.959 lost in the Supreme Court. That seems foreordained to me. 0:10:41.360 --> 0:10:44.760 But the real question is how broadly is the court 0:10:44.840 --> 0:10:49.719 going to go in limiting the scope of NEPA analysis 0:10:49.760 --> 0:10:52.800 In a variety of other cases, this is just you know, 0:10:52.960 --> 0:10:57.160 one eighty eight mile rail line, right, But NEPA applies 0:10:57.200 --> 0:11:01.080 to a huge number of federal actions, of course. So 0:11:01.520 --> 0:11:03.240 that's what I'm going to be looking for. Will they 0:11:03.240 --> 0:11:07.640 write a narrow opinion, overturn the DC circuit, let this 0:11:07.760 --> 0:11:10.520 project be finished, and leave it the rest of it alone. 0:11:10.640 --> 0:11:12.840 Coming up next on the Bloomberg Law Show, I'll continue 0:11:12.920 --> 0:11:16.600 this conversation with Professor Pat Parento of the Vermont Law 0:11:16.640 --> 0:11:20.640 and Graduate School. What happens to environmental reviews under the 0:11:20.760 --> 0:11:25.800 upcoming Trump administration. I'm June Grosso and you're listening to Bloomberg. 0:11:26.880 --> 0:11:30.240 Supreme Court seems almost certain to limit the scope of 0:11:30.400 --> 0:11:34.400 environmental impact studies. The question is how the Court will 0:11:34.400 --> 0:11:39.280 do so. The justices at oral arguments overwhelmingly suggested that 0:11:39.320 --> 0:11:42.600 the US Court of Appeals for the DC Circuit went 0:11:42.720 --> 0:11:46.120 too far when it required federal regulators to look at 0:11:46.160 --> 0:11:50.240 potential effects on communities on the Gulf Coast in considering 0:11:50.240 --> 0:11:53.800 whether to approve an eighty eight mile railway in Utah. 0:11:54.080 --> 0:11:56.680 I've been talking to Professor Pat Parento of the Vermont 0:11:56.760 --> 0:11:59.320 Law and Graduate School. Did it seem like some of 0:11:59.360 --> 0:12:02.320 the justice is thought that they didn't need to adopt 0:12:02.360 --> 0:12:06.160 a new test, that they could clarify the old one instead. 0:12:06.760 --> 0:12:09.880 Justice amy Cony Barrett said maybe the Court should just 0:12:09.960 --> 0:12:13.760 say what we've said before, but maybe put a little 0:12:13.800 --> 0:12:15.600 bit more flesh on the bone. 0:12:16.080 --> 0:12:21.040 Yes. In fact, she and Justice Kavanaugh both stressed that 0:12:21.240 --> 0:12:23.800 when you have a question like this of the scope 0:12:24.080 --> 0:12:28.400 of NIPA analysis and it's tied to the authority of 0:12:28.440 --> 0:12:32.640 the agency in question, right, that you should defer to 0:12:32.720 --> 0:12:38.760 the agency's determination of what's an appropriate scope, and only 0:12:38.880 --> 0:12:43.559 where that determination can be shown to be arbitrary and capricious. 0:12:43.720 --> 0:12:47.280 That's the sort of standard review test under the Administrative 0:12:47.280 --> 0:12:50.440 Procedure active course. Only where you can show that you 0:12:50.480 --> 0:12:55.400 know the agency made basically interrational determination of scope. Should 0:12:55.400 --> 0:12:59.680 the court step in, Kavanaugh said, in light of the 0:12:59.760 --> 0:13:03.559 re sense passage of what's called the Builder Bill by Congress, 0:13:03.559 --> 0:13:06.800 this is the Infrastructure Bill, And in that bill they 0:13:06.840 --> 0:13:10.760 actually amended NEPA in a variety of ways, including putting 0:13:10.760 --> 0:13:14.120 a page limit on environmental impact statements of one hundred 0:13:14.160 --> 0:13:17.800 and fifty pages and putting a time limit on how 0:13:17.920 --> 0:13:21.360 long the NEPA process could take, namely one year for 0:13:21.559 --> 0:13:24.480 certain kinds of important projects. And this kind of a 0:13:24.480 --> 0:13:27.960 project would be included as a critical sort of energy 0:13:28.000 --> 0:13:32.400 infrastructure project. Right, So Kavanaugh referred to that passage of 0:13:32.400 --> 0:13:35.520 that law and said, you know, there's no way agencies 0:13:35.600 --> 0:13:39.199 can do everything that the DC Circuit is requiring them 0:13:39.200 --> 0:13:41.640 to do in one hundred and fifty pages in a 0:13:41.720 --> 0:13:45.440 year's timeframe. So he said the court should be giving 0:13:45.760 --> 0:13:50.360 different squared was the term he used to agency interpretations 0:13:50.360 --> 0:13:53.720 of the scope of their analysis. So, yeah, I think 0:13:53.880 --> 0:13:57.480 if this case, you know, comes out doing minimal damage, 0:13:57.559 --> 0:13:59.960 let's put it that way to NEPA, it will be 0:14:00.360 --> 0:14:04.160 for the Court to refer to this new congressional act, 0:14:04.160 --> 0:14:08.560 the Builder Bill, and emphasized that courts should not be 0:14:08.760 --> 0:14:12.840 second guessing agencies when they determine how far they're going 0:14:12.880 --> 0:14:17.440 to go, and analyzing these indirect effects, taking into account 0:14:17.559 --> 0:14:20.360 time and distance and authority and so forth. So I 0:14:20.440 --> 0:14:25.040 can anticipate seeing a decision that lays out more clearly 0:14:25.760 --> 0:14:28.640 the role of the courts in reviewing cases like this 0:14:29.040 --> 0:14:33.080 and limiting judicial review, but maybe not going so far 0:14:33.600 --> 0:14:37.120 as to adopt Clements tests, which would be a very 0:14:37.120 --> 0:14:41.080 significant narrowing of NIPA analysis, and one in which the 0:14:41.080 --> 0:14:44.440 Biden administration, of course, in their argument because they're the 0:14:44.480 --> 0:14:47.640 defendant the STB is the defendant in the case, did 0:14:47.680 --> 0:14:51.400 not agree with Clement's tests. Edwin Needler, also a former 0:14:51.440 --> 0:14:55.400 Solicitor General, argued the case for the Biden administration and 0:14:55.680 --> 0:15:00.560 tried his best to distinguish his approach and the Biden 0:15:00.560 --> 0:15:05.640 administration's approach from what Clement was proposing. But frankly, that 0:15:05.680 --> 0:15:08.240 doesn't matter, does it. In light of who's coming to 0:15:08.320 --> 0:15:11.960 office in January. The views of the Biden administration will 0:15:11.960 --> 0:15:14.000 have no bearing whatsoever going forward. 0:15:14.240 --> 0:15:19.680 So just back to Kavanaugh and the deference squared, he said, 0:15:19.680 --> 0:15:21.800 it seems to me the difference of the courts has 0:15:21.840 --> 0:15:24.520 to be huge with respect to how the agencies think 0:15:24.560 --> 0:15:27.480 about the scope of what they're going to consider. How 0:15:27.520 --> 0:15:31.440 does that fit in with this court that last term 0:15:31.600 --> 0:15:36.160 throughout the Chevron doctrine, and you know, deference to agencies 0:15:36.280 --> 0:15:41.080 interpretations of ambiguous statutes. Now they're willing to give deference. 0:15:42.680 --> 0:15:46.280 Well, you know, they're all saying consistency is the hob 0:15:46.320 --> 0:15:52.920 goblin of small minds. So yeah, there's a little bit 0:15:53.000 --> 0:15:57.520 of inconsistency there, right, So we will defer to agencies 0:15:57.960 --> 0:16:02.960 when we like what they're doing, but not differ to 0:16:03.000 --> 0:16:05.640 them when we don't. I'm not going to go completely 0:16:05.680 --> 0:16:10.440 cynical on that, although I'm tempted, but certainly there's tension 0:16:10.880 --> 0:16:13.440 here between when you're going to give an agency difference 0:16:13.480 --> 0:16:16.640 and when you're not. So I would say this that 0:16:17.080 --> 0:16:19.800 when it comes to this narrower question of what's the 0:16:19.840 --> 0:16:23.880 scope of analysis with these indirect effects, these are you know, 0:16:24.320 --> 0:16:29.520 admittedly there's some speculation about exactly what these effects are 0:16:29.560 --> 0:16:32.280 going to be and how they're going to be handled 0:16:32.280 --> 0:16:35.760 by a variety of different agencies that have authority. So 0:16:36.240 --> 0:16:38.600 you know, this is a gray area of nep law. 0:16:38.640 --> 0:16:42.040 I have to say, and you know, reasonable people, I 0:16:42.120 --> 0:16:45.440 suppose can disagree about how far you should go. If 0:16:45.440 --> 0:16:48.720 I'm arguing the other side of this, what I'm going 0:16:48.800 --> 0:16:52.760 to say is, look, STD has a very clear binary 0:16:52.840 --> 0:16:57.160 decision here, right, either approve the new rail line or not. 0:16:57.520 --> 0:17:00.640 In the final analysis, It's a yes or no question. 0:17:01.400 --> 0:17:05.240 And to answer that question, you have to balance the benefits, 0:17:05.400 --> 0:17:10.520 economic and otherwise of the proposed rail line and the costs, 0:17:10.640 --> 0:17:15.120 including environmental costs. And I would argue including climates costs. Right, 0:17:15.760 --> 0:17:18.960 So I can make the argument that this is perfectly 0:17:19.000 --> 0:17:22.879 reasonable to require STV to look at lots of things 0:17:22.880 --> 0:17:26.160 that it doesn't control, because the one thing it does 0:17:26.280 --> 0:17:29.359 control is whether to allow this project to be built, 0:17:29.600 --> 0:17:33.720 and that turns on water. It's net and overall benefits 0:17:33.800 --> 0:17:36.719 versus its costs. Right, So you can make an argument, 0:17:37.119 --> 0:17:40.399 I think, And I've made these arguments in my past 0:17:40.480 --> 0:17:43.359 life because I wrote an odd article called small Handles. 0:17:43.520 --> 0:17:48.280 When do federal regulations privatize actions by others? And so 0:17:48.440 --> 0:17:51.560 I've made the arguments that it doesn't really matter what 0:17:51.720 --> 0:17:55.480 the scope of the agency's authority is. The question is 0:17:55.560 --> 0:17:59.679 should they approve this project or not? And that requires 0:17:59.720 --> 0:18:04.000 looking at as many things as you can reasonably consider, 0:18:04.080 --> 0:18:08.239 not looking at things that are purely speculative or you know, 0:18:08.400 --> 0:18:11.639 angels on ahead of a pen kind of calculations. But 0:18:12.320 --> 0:18:16.439 those things that you can reasonably foresee and calculate and 0:18:16.600 --> 0:18:20.760 way in the balance should be weighed. But that's not 0:18:20.880 --> 0:18:22.600 where this case is going to come out. I'm just 0:18:22.640 --> 0:18:26.760 telling you an alternative view of what NIPA might require 0:18:26.840 --> 0:18:30.320 of an agency like this, even though it doesn't control 0:18:30.680 --> 0:18:33.440 everything that happens as a result of its decision. 0:18:33.960 --> 0:18:38.040 So we should mention that Justice Neil Gorsitch recused himself 0:18:38.760 --> 0:18:39.520 just last week. 0:18:39.880 --> 0:18:43.000 Yes, so he did not say why. The speculation is 0:18:43.000 --> 0:18:46.080 that he or his family may have a financial interest 0:18:46.119 --> 0:18:48.480 in one of the parties that would benefit from this 0:18:48.640 --> 0:18:52.439 rail line. That's the speculation. But given credit, he was 0:18:52.520 --> 0:18:56.520 asked to refuse by the respondents who were, you know, 0:18:56.680 --> 0:18:59.960 the environmental concerns here, and he did, so, you know, 0:19:00.000 --> 0:19:02.920 we kudo to Neio Gorsics for that. I would say I. 0:19:02.840 --> 0:19:08.040 Would too, especially considering how many times Justices Alito and 0:19:08.080 --> 0:19:10.560 Thomas have been asked to recuse and they haven't. 0:19:11.040 --> 0:19:14.040 Yeah, at least one has paid attention to the sort 0:19:14.080 --> 0:19:16.840 of concern about ethics on the bench. But there's still 0:19:16.920 --> 0:19:20.879 five there's still five Conservatives, so there's clearly five votes 0:19:21.280 --> 0:19:24.320 to overturn the DC circuit. As I say, the question 0:19:24.480 --> 0:19:26.240 is how are they going to do it and will 0:19:26.280 --> 0:19:29.080 the Liberals have some influence on that? Can they convince 0:19:29.440 --> 0:19:33.720 their colleagues to limit the reach of whatever decision they make? 0:19:34.000 --> 0:19:38.600 So you mentioned the upcoming Trump administration. Do you think 0:19:38.680 --> 0:19:42.960 that they will just ignore any climate action at the 0:19:43.000 --> 0:19:46.040 federal level? I mean, what's the thought about how they 0:19:46.119 --> 0:19:47.800 might approach the environment. 0:19:48.520 --> 0:19:50.920 Well, you know, we might be happy if they did 0:19:51.040 --> 0:19:53.199 just ignore it, but they're not going to just ignore it. 0:19:53.680 --> 0:19:55.760 They're going to turn the clock back. They're going to 0:19:55.800 --> 0:19:58.760 reverse everything Biden did. They're going to try to claw 0:19:58.840 --> 0:20:01.639 back money under the Inflation Reduction Act. They're going to 0:20:01.680 --> 0:20:05.560 repeal the power plant rule, the tail pipe rule, the 0:20:05.560 --> 0:20:09.320 methane rule. They're going to require maximum oil and gas 0:20:09.400 --> 0:20:13.240 leasing both offshore and onshore on public lands right down 0:20:13.280 --> 0:20:16.960 the list. What they're proposing to do, and they're putting 0:20:16.960 --> 0:20:19.640 the people in place to do it, is to turn 0:20:19.720 --> 0:20:23.680 us completely around and go in the absolute wrong direction. 0:20:24.280 --> 0:20:28.480 Instead of facilitating the transition to a clean energy, clean 0:20:28.520 --> 0:20:34.120 transportation economy, which is well underway right instead of facilitating that, 0:20:34.400 --> 0:20:37.280 they're going to throw up roadblocks and try to stop it. 0:20:37.280 --> 0:20:41.240 It's really, frankly, to use a not technical term, insane 0:20:41.400 --> 0:20:45.360 what they're talking about. It doesn't make sense, economically, environmentally, 0:20:45.400 --> 0:20:48.720 public health. None of what they're talking about makes sense. 0:20:48.880 --> 0:20:51.480 Do some of these programs need improvement, of course they 0:20:51.520 --> 0:20:55.119 always do. Should Congress update some of these statutes to 0:20:55.200 --> 0:20:58.159 take account of new ways of dealing with these problems, 0:20:58.200 --> 0:21:00.960 of course they should. Should the federal government put some 0:21:01.160 --> 0:21:06.920 money into helping industry clean up, Yes, and so on. 0:21:07.000 --> 0:21:09.160 But that's not what we're going to see. I'm sure 0:21:09.200 --> 0:21:10.120 we're not going to see that. 0:21:10.480 --> 0:21:13.560 Can they do that in four years if they pay 0:21:13.600 --> 0:21:17.800 attention to the requirements of the law, the Administrative Procedure Act, 0:21:17.840 --> 0:21:18.359 et cetera. 0:21:19.280 --> 0:21:21.760 Well they didn't the last time, and Trump won. Of course, 0:21:21.760 --> 0:21:25.000 they lost most of their cases, almost eighty percent of 0:21:25.040 --> 0:21:28.480 the challenges. That this time around, their trying looks to 0:21:28.600 --> 0:21:31.680 learn from their mistakes, we'll see. You know, the top 0:21:31.800 --> 0:21:34.400 level people they're talking about are not capable. I don't 0:21:34.440 --> 0:21:37.600 think of implementing what Trump is talking about. So the 0:21:37.640 --> 0:21:39.920 real question is going to be who are they bringing 0:21:39.960 --> 0:21:44.600 in in the you know, second and third tiers of EPA, 0:21:44.720 --> 0:21:48.040 Department of Interior, Department of Energy, and so on. That 0:21:48.240 --> 0:21:51.840 level you know of the agencies is where the action is. 0:21:52.200 --> 0:21:55.320 And you know, if they get really capable people who 0:21:55.359 --> 0:21:59.280 have some experience in government with these agencies, then I 0:21:59.359 --> 0:22:02.160 do worry. And if they start, as I think they will, 0:22:02.240 --> 0:22:06.080 start driving out some of the career professionals, particularly for 0:22:06.200 --> 0:22:09.760 my old agency at EPA, people I know and admire greatly. 0:22:10.080 --> 0:22:13.720 If those people have had enough and are second tired 0:22:13.720 --> 0:22:17.000 of being abused and threatened, which they are being threatened, 0:22:17.119 --> 0:22:19.359 they're going to leave. And we're seeing that already. I'm 0:22:19.400 --> 0:22:21.919 seeing it because they're showing up on our doorstep asking 0:22:21.960 --> 0:22:25.040 for jobs at Vermont Law School, right, So that's a 0:22:25.040 --> 0:22:28.760 big concern. If they drive out the real professionals from 0:22:28.800 --> 0:22:32.760 these agencies and replace them with quote Trump loyalists, we're 0:22:32.760 --> 0:22:36.879 in serious trouble. Then we're talking about permanent damage to 0:22:37.000 --> 0:22:40.720 some of these institutions. That does worry me greatly, even 0:22:40.800 --> 0:22:42.960 more than what they're going to try to do with 0:22:43.320 --> 0:22:47.040 regulatory rollbacks, because we do have courts out there still, 0:22:47.359 --> 0:22:49.680 there are still good judges out there who are not 0:22:49.720 --> 0:22:52.720 going to let them run rampant over the rule of 0:22:52.840 --> 0:22:55.600 law and just do whatever they want, regardless of what 0:22:55.720 --> 0:22:59.040 the law and the APA requires. If they try to 0:22:59.080 --> 0:23:01.960 do what they did or they're gonna get stopped, They're 0:23:02.000 --> 0:23:05.840 gonna get slowed down. And in this case, delay is everything. 0:23:05.920 --> 0:23:09.439 The more that you can delay what Trump is trying 0:23:09.480 --> 0:23:12.400 to do, the more he becomes a real lane duck. 0:23:12.920 --> 0:23:15.720 And then that the midterm elections kick in, and then 0:23:15.760 --> 0:23:19.760 we see if maybe there's a turning point that will 0:23:19.880 --> 0:23:24.359 further limit the damage that Trump is threatening against environmental programs. 0:23:24.760 --> 0:23:27.800 President Joe Biden has said nobody can reverse the clean 0:23:27.880 --> 0:23:31.640 energy solutions that are already underway in this country. We'll 0:23:31.680 --> 0:23:34.680 see what happens come January. Thanks so much, Pat. That's 0:23:34.680 --> 0:23:38.000 Professor Pat Parento of the Vermont Law and Graduate School. 0:23:38.240 --> 0:23:40.720 Coming up next on the Bloomberg Law Show. Why is 0:23:40.720 --> 0:23:44.160 there an uptick in divorces after the Holidays? I'm June 0:23:44.160 --> 0:23:48.000 Grosso and you're listening to Bloomberg. 'tis the season, and 0:23:48.080 --> 0:23:51.840 you might notice an uptick in engagements of happy couples, 0:23:52.040 --> 0:23:55.640 But once the tree comes down, it's an uptick in divorces. 0:23:55.680 --> 0:23:58.680 You'll likely see. Joining me is an attorney who handles 0:23:58.760 --> 0:24:02.560 matrimonial and family law matters Lauren Crane. She's a partner 0:24:02.560 --> 0:24:05.560 at Bender and Crane, a female owned boutique law firm 0:24:05.600 --> 0:24:08.400 in New York. So is the holiday season a popular 0:24:08.480 --> 0:24:10.320 time for people to get engaged. 0:24:10.560 --> 0:24:13.480 A lot of people do get engaged in the holiday season. 0:24:13.680 --> 0:24:17.879 And typically people who do get engaged, they look forward 0:24:17.920 --> 0:24:22.080 to getting married and they start to plan forward, and 0:24:22.359 --> 0:24:25.800 it's really a celebratory time. But people who are getting 0:24:25.840 --> 0:24:28.800 engaged think about whether they get engaged on a holiday 0:24:28.920 --> 0:24:31.520 or not. So if you get engaged and you give 0:24:31.640 --> 0:24:34.879