1 00:00:10,920 --> 00:00:11,360 Speaker 1: Hello. 2 00:00:11,520 --> 00:00:16,239 Speaker 2: I'm Amy Westervelt and this is a special crossover episode 3 00:00:16,360 --> 00:00:21,800 Speaker 2: of Drilled and Damages. Today I am joined by Sam Sinkar, 4 00:00:22,000 --> 00:00:26,239 Speaker 2: Senior Vice President of Earth Justice, and Kirti dad La, 5 00:00:26,520 --> 00:00:30,920 Speaker 2: director of Strategic Legal Advocacy for Earth Justice, to talk 6 00:00:30,960 --> 00:00:33,960 Speaker 2: a little bit more about what exactly the West Virginia 7 00:00:34,080 --> 00:00:38,080 Speaker 2: versus EPA decision meant and to look ahead at some 8 00:00:38,159 --> 00:00:41,040 Speaker 2: of the big cases for climate folks to be watching 9 00:00:41,120 --> 00:00:44,880 Speaker 2: in the next Supreme Court session coming up this fall. 10 00:00:45,120 --> 00:00:48,920 Speaker 2: There's a lot to get into here, from the continued 11 00:00:48,960 --> 00:00:54,320 Speaker 2: attempt to dismantle the quote unquote administrative State, to the 12 00:00:54,360 --> 00:00:57,640 Speaker 2: way that the Clean Water Act is being targeted in 13 00:00:57,720 --> 00:01:01,840 Speaker 2: a case coming up next session, to how litigation remains 14 00:01:01,880 --> 00:01:06,000 Speaker 2: a very important tool even with the Supreme Court on fire. 15 00:01:06,680 --> 00:01:08,720 Speaker 2: We're going to get into all of that and more 16 00:01:09,240 --> 00:01:11,480 Speaker 2: coming up after this quick break. 17 00:01:20,640 --> 00:01:23,120 Speaker 1: My name is Sam Sankar. I'm the senior vice president 18 00:01:23,240 --> 00:01:29,240 Speaker 1: of Programs ED, which means I lead to our lobbying 19 00:01:29,360 --> 00:01:30,520 Speaker 1: and litigation efforts. 20 00:01:30,880 --> 00:01:35,360 Speaker 3: I'm Karite Doatla, and I'm the director at Strategic Legal 21 00:01:35,400 --> 00:01:39,959 Speaker 3: Advocacy or Justice, which in a nutshell means I kind 22 00:01:39,959 --> 00:01:43,759 Speaker 3: of keep track of the goings on in the federal courts, 23 00:01:44,720 --> 00:01:48,040 Speaker 3: especially the Supreme Court, on issues that kind of crop 24 00:01:48,160 --> 00:01:49,640 Speaker 3: up across all of our cases. 25 00:01:49,920 --> 00:01:52,880 Speaker 2: Okay, so I know that it's been a while since 26 00:01:53,080 --> 00:01:57,800 Speaker 2: the West Virginia versus EPA decision came down with a 27 00:01:57,800 --> 00:02:00,440 Speaker 2: couple of months you know, pasted it. What do you 28 00:02:00,520 --> 00:02:05,840 Speaker 2: think the implications of that decision are or will be? 29 00:02:06,320 --> 00:02:07,040 Speaker 4: Yeah, totally. 30 00:02:07,080 --> 00:02:10,880 Speaker 3: So, you know, I think your listeners are already pretty 31 00:02:10,919 --> 00:02:13,520 Speaker 3: well versed in this case. But just as a reminder, 32 00:02:14,960 --> 00:02:18,240 Speaker 3: you know, the case is ostensibly about this Obama era 33 00:02:18,840 --> 00:02:24,600 Speaker 3: regulation called the Clean Power Plant that addressed embissions from 34 00:02:25,040 --> 00:02:28,600 Speaker 3: fossil fuel fired power plants. But that regulation was sort 35 00:02:28,639 --> 00:02:31,040 Speaker 3: of a zombie regulation that had, because of the Supreme 36 00:02:31,080 --> 00:02:35,400 Speaker 3: Court issuing a stay, never got into effect, and that 37 00:02:35,480 --> 00:02:38,840 Speaker 3: was sort of kind of practically dead for all purposes. 38 00:02:39,000 --> 00:02:40,359 Speaker 4: And the Supreme Court. 39 00:02:40,160 --> 00:02:43,160 Speaker 3: Took a case that was about whether or not that 40 00:02:43,160 --> 00:02:48,600 Speaker 3: that zombie regulation was valid, largely to address something called 41 00:02:48,600 --> 00:02:52,160 Speaker 3: the major Questions doctrine, which had sort of been cobbled 42 00:02:52,200 --> 00:02:54,880 Speaker 3: together out of a couple of sentences here and there 43 00:02:54,919 --> 00:02:58,680 Speaker 3: in the Supreme Court's past cases by folks like West 44 00:02:58,760 --> 00:03:00,760 Speaker 3: Virginia and the Group of States that it was leading 45 00:03:00,760 --> 00:03:03,320 Speaker 3: in this case and the industry groups that were on 46 00:03:03,360 --> 00:03:06,720 Speaker 3: their side, and as they put it to the court, 47 00:03:07,280 --> 00:03:09,960 Speaker 3: you know, the idea is that if an a federal 48 00:03:10,000 --> 00:03:13,760 Speaker 3: agency is going to address something that has big economic 49 00:03:13,800 --> 00:03:17,280 Speaker 3: and political consequences, it needs to be able to identify 50 00:03:17,320 --> 00:03:20,919 Speaker 3: something really clear in the statute that gives it the 51 00:03:20,960 --> 00:03:23,560 Speaker 3: authority to do basically exactly what it tried to do. 52 00:03:24,520 --> 00:03:27,760 Speaker 3: And you know, it's sort of obvious just from describing 53 00:03:28,000 --> 00:03:30,119 Speaker 3: the doctor that they pitched to the court that it 54 00:03:30,160 --> 00:03:34,440 Speaker 3: is inherently deregulatory. You know, it only applies when the 55 00:03:34,480 --> 00:03:38,560 Speaker 3: government wants to do something, and the kind of tests 56 00:03:38,600 --> 00:03:41,840 Speaker 3: that it asks agencies to overcome is one that will 57 00:03:41,840 --> 00:03:46,200 Speaker 3: be hard, if not impossible, to overcome in most cases. So, 58 00:03:46,880 --> 00:03:48,320 Speaker 3: you know, they took the case to the court. The 59 00:03:48,360 --> 00:03:51,320 Speaker 3: court accepted the case, and at the end of its term, 60 00:03:51,360 --> 00:03:53,280 Speaker 3: in the last day of its term, actually issued a 61 00:03:53,320 --> 00:03:55,920 Speaker 3: decision in the case that it kind of accepts the 62 00:03:55,960 --> 00:03:59,800 Speaker 3: general premise of what West Virginia and those on its 63 00:03:59,800 --> 00:04:01,760 Speaker 3: side I'd asked the court to do, but doesn't go 64 00:04:01,840 --> 00:04:04,520 Speaker 3: all the way somewhat thankfully, So the court kind of 65 00:04:04,560 --> 00:04:07,560 Speaker 3: accepts the idea that the major questions doctrine exists. It 66 00:04:07,920 --> 00:04:10,720 Speaker 3: you know, describes it using that name for the first time, 67 00:04:11,480 --> 00:04:15,040 Speaker 3: and it says that in certain you know, unusual cases, 68 00:04:15,320 --> 00:04:19,240 Speaker 3: in certain extraordinary cases, it's going to apply this this 69 00:04:19,279 --> 00:04:23,280 Speaker 3: sort of common sense and also constitutionally based assumption that 70 00:04:23,360 --> 00:04:27,760 Speaker 3: Congress didn't mean to give agencies, you know, broad authority 71 00:04:27,880 --> 00:04:32,479 Speaker 3: to do things like reshape the market or you know, 72 00:04:32,560 --> 00:04:38,400 Speaker 3: impose a really significant regulation. So I say it did 73 00:04:38,920 --> 00:04:41,840 Speaker 3: kind of go all the way because it it does, 74 00:04:42,000 --> 00:04:44,520 Speaker 3: you know, have that limiting language there. Does the Court 75 00:04:44,640 --> 00:04:47,000 Speaker 3: does say, you know, it's not supposed to apply in 76 00:04:47,040 --> 00:04:50,839 Speaker 3: every case, But the decision is also pretty mushy in 77 00:04:50,960 --> 00:04:53,880 Speaker 3: terms of saying what it does apply and the factors 78 00:04:53,920 --> 00:04:57,640 Speaker 3: that it's going to consider. So it's a little hard 79 00:04:57,680 --> 00:04:59,680 Speaker 3: to say what the effect of the decision will be 80 00:04:59,680 --> 00:05:04,000 Speaker 3: because we don't have a lower court decision applying it yet. 81 00:05:04,640 --> 00:05:06,840 Speaker 3: But you know, I think it's safe to say that 82 00:05:07,680 --> 00:05:10,560 Speaker 3: the reason this doctrine was kind of invented and created 83 00:05:10,640 --> 00:05:14,440 Speaker 3: and taken to the Supreme Court was because it's deregulatory. 84 00:05:14,600 --> 00:05:17,720 Speaker 3: It was kind of another tool in the toolbox of 85 00:05:17,800 --> 00:05:23,479 Speaker 3: people who don't like federal regulations. And we know from 86 00:05:23,640 --> 00:05:25,719 Speaker 3: what has happened, you know, in the run up to 87 00:05:25,760 --> 00:05:27,920 Speaker 3: the decision and after it that that's exactly how it's 88 00:05:27,960 --> 00:05:31,039 Speaker 3: being used. So we know that people have kind of 89 00:05:31,040 --> 00:05:34,599 Speaker 3: been making noises, either in their comments to agencies or 90 00:05:34,680 --> 00:05:38,880 Speaker 3: in briefs before federal courts or press statements that they 91 00:05:39,080 --> 00:05:42,280 Speaker 3: think that, you know, a whole host of federal regulations 92 00:05:42,279 --> 00:05:45,120 Speaker 3: should be challenged on this basis, and that ranges from 93 00:05:45,240 --> 00:05:51,280 Speaker 3: things like the Department of Transportations fuel efficiency standards for vehicles, 94 00:05:51,720 --> 00:05:55,799 Speaker 3: the new rule that the SEC is working on related 95 00:05:55,800 --> 00:05:59,080 Speaker 3: to climate disclosures, things going all the way down to 96 00:05:59,240 --> 00:06:03,159 Speaker 3: things that seems pretty odd, major like the PA's rules 97 00:06:03,160 --> 00:06:08,520 Speaker 3: regarding overcoming tampering preventing tampering of cars to get around 98 00:06:08,520 --> 00:06:10,279 Speaker 3: promission standards. 99 00:06:10,040 --> 00:06:12,120 Speaker 4: And then don't have nothing to do with the environment. 100 00:06:12,240 --> 00:06:16,159 Speaker 3: Things like the DACA program, so that's an immigration related law. 101 00:06:16,240 --> 00:06:20,720 Speaker 3: There's childes to viasive programs related to the Major Questions doctrine. 102 00:06:20,839 --> 00:06:23,000 Speaker 4: You know, it's a like I said, it's. 103 00:06:22,839 --> 00:06:25,520 Speaker 3: A tool in the toolbox of people that don't like regulations. 104 00:06:25,720 --> 00:06:29,280 Speaker 3: And those people see, you know, see everything as a 105 00:06:29,360 --> 00:06:30,880 Speaker 3: nail and are taking out. 106 00:06:30,720 --> 00:06:33,480 Speaker 4: This hammer and banging on it. And you know, I 107 00:06:33,520 --> 00:06:34,159 Speaker 4: don't mean. 108 00:06:34,040 --> 00:06:36,400 Speaker 3: To say, I just want to be clear, like the 109 00:06:36,440 --> 00:06:38,120 Speaker 3: fact that people are raising this argument all the time 110 00:06:38,160 --> 00:06:39,920 Speaker 3: doesn't mean it's a good argument. It doesn't mean it's 111 00:06:39,920 --> 00:06:42,320 Speaker 3: going to win, but it does mean that the doctorate 112 00:06:42,360 --> 00:06:44,799 Speaker 3: is serving exactly the purpose it was created to serve, 113 00:06:45,240 --> 00:06:46,080 Speaker 3: right right. 114 00:06:47,080 --> 00:06:51,039 Speaker 2: I'm curious about how all of that fits in with 115 00:06:51,120 --> 00:06:55,640 Speaker 2: the context of the Inflation Reduction Act too. First, I'd 116 00:06:55,640 --> 00:07:00,160 Speaker 2: love to sort of hear from from both of your 117 00:07:00,240 --> 00:07:08,680 Speaker 2: thoughts on gaps in that legislation and where litigation might 118 00:07:08,760 --> 00:07:13,000 Speaker 2: play a role in addressing some of the concerns that 119 00:07:13,040 --> 00:07:16,000 Speaker 2: people have about it. But then I also wonder how 120 00:07:16,040 --> 00:07:21,480 Speaker 2: people are thinking about litigation given what's happening at the 121 00:07:21,520 --> 00:07:25,320 Speaker 2: Supreme Court right now. Kind of kind of broadly. 122 00:07:25,360 --> 00:07:28,120 Speaker 1: Sure, well, why don't I take the first part of 123 00:07:28,160 --> 00:07:34,920 Speaker 1: that question, the you know, the first part of what 124 00:07:34,960 --> 00:07:37,880 Speaker 1: does the IRA do and what's the role of litigation 125 00:07:38,200 --> 00:07:42,960 Speaker 1: in the IRA? And you know, I'll like here to 126 00:07:43,080 --> 00:07:46,640 Speaker 1: talk a little bit more about the impact of just 127 00:07:46,680 --> 00:07:51,560 Speaker 1: the general impact of this Supreme Court on litigation in 128 00:07:51,720 --> 00:07:56,160 Speaker 1: service of environmental and public interests. The IRA is first 129 00:07:56,200 --> 00:08:00,240 Speaker 1: and foremost as a spending bill, So one of the 130 00:08:00,240 --> 00:08:04,520 Speaker 1: the things about it is that it's basically giving money 131 00:08:04,880 --> 00:08:08,680 Speaker 1: to a whole lot of different sectors, including the clean 132 00:08:08,760 --> 00:08:10,920 Speaker 1: energy sector and the oil and gas sector, in the 133 00:08:10,960 --> 00:08:14,560 Speaker 1: form of various tax credits and other direct spending. And 134 00:08:15,080 --> 00:08:18,680 Speaker 1: that kind of policy work is not the sort of 135 00:08:18,800 --> 00:08:21,360 Speaker 1: thing that the Supreme Court is going to have a 136 00:08:21,360 --> 00:08:23,400 Speaker 1: lot to do with or the federal courts in general, 137 00:08:25,440 --> 00:08:30,880 Speaker 1: because it's spending. This isn't regulation, And politically speaking, that's 138 00:08:30,960 --> 00:08:36,559 Speaker 1: actually been the secret to making progress legislatively on climate 139 00:08:36,600 --> 00:08:39,040 Speaker 1: is to say, like, let's spend our way out of 140 00:08:39,040 --> 00:08:42,080 Speaker 1: this problem, let's invest in a clean energy economy. And 141 00:08:42,640 --> 00:08:46,040 Speaker 1: the deal, of course, was that this had to go 142 00:08:46,080 --> 00:08:50,800 Speaker 1: along with a lot of oil and gas and problematic 143 00:08:51,160 --> 00:08:55,559 Speaker 1: spending as well, including in technologies like carbon capture and 144 00:08:55,600 --> 00:09:00,520 Speaker 1: sequestration and blue hydrogen which are at best unproven, at 145 00:09:00,520 --> 00:09:06,559 Speaker 1: worst really just you know, the same old stuff in disguise. 146 00:09:07,280 --> 00:09:10,440 Speaker 1: So on the IRA, some of the problematic elements have 147 00:09:10,559 --> 00:09:14,480 Speaker 1: basically been the parts that are going to make it 148 00:09:14,520 --> 00:09:20,040 Speaker 1: easier and cheaper to expand fossil fuel infrastructure across a 149 00:09:20,080 --> 00:09:22,760 Speaker 1: lot of places in the country that already have a 150 00:09:22,760 --> 00:09:26,880 Speaker 1: lot of that infrastructure, and that as a result involve 151 00:09:26,960 --> 00:09:29,200 Speaker 1: a lot of pollution burdens on the people who live there, 152 00:09:29,880 --> 00:09:34,199 Speaker 1: and so ironically, a lot of those communities are the 153 00:09:34,720 --> 00:09:37,880 Speaker 1: foundation of a movement for climate justice that is very 154 00:09:37,960 --> 00:09:42,960 Speaker 1: much part of the political support for this legislation and 155 00:09:43,040 --> 00:09:47,440 Speaker 1: for President Biden's overall success in the last presidential elections. 156 00:09:47,440 --> 00:09:52,000 Speaker 1: So it's ironic that they're going to in many respects 157 00:09:52,040 --> 00:09:55,520 Speaker 1: see the raw side of this deal. So what role 158 00:09:55,520 --> 00:09:59,559 Speaker 1: does litigation play? Well, nothing in the Inflation Reduction Act, 159 00:09:59,720 --> 00:10:03,640 Speaker 1: Nothing in there limits the role of traditional environmental laws. 160 00:10:04,559 --> 00:10:07,320 Speaker 1: And that means that all of that infrastructure, oil and 161 00:10:07,400 --> 00:10:11,559 Speaker 1: gas and problematic pollution generating infrastructure is going to be 162 00:10:11,600 --> 00:10:14,040 Speaker 1: subject to those laws. And so litigation is going to 163 00:10:14,080 --> 00:10:17,520 Speaker 1: have a substantial role in making sure that any development 164 00:10:17,600 --> 00:10:21,880 Speaker 1: that's supported under this act is going to be is 165 00:10:21,920 --> 00:10:24,160 Speaker 1: going to have to pass through the gauntlet of those laws. 166 00:10:24,240 --> 00:10:27,160 Speaker 1: And organizations like Earth Justice are very much going to 167 00:10:27,160 --> 00:10:29,400 Speaker 1: be helping those communities fight back to make sure that 168 00:10:29,480 --> 00:10:31,559 Speaker 1: the future that they get out of this bill is 169 00:10:31,600 --> 00:10:35,800 Speaker 1: the future that they want. Anyway, we could go into 170 00:10:35,840 --> 00:10:37,400 Speaker 1: that a little bit more, but i'll like Koti talk 171 00:10:37,520 --> 00:10:38,600 Speaker 1: about the Court. 172 00:10:39,600 --> 00:10:41,679 Speaker 4: Yeah, I mean as to the Supreme Court. 173 00:10:42,160 --> 00:10:45,960 Speaker 3: I'll just you know, it's not like the Supreme Court 174 00:10:46,000 --> 00:10:51,400 Speaker 3: has ever been like super environmentally friendly, so. 175 00:10:51,800 --> 00:10:54,520 Speaker 2: The Climate Court, I'm just kidding, yeah, exactly. 176 00:10:54,600 --> 00:10:57,800 Speaker 3: So you know, I think it's important to just like 177 00:10:57,840 --> 00:11:00,360 Speaker 3: set the baseline in the right place. But that said, 178 00:11:01,720 --> 00:11:04,120 Speaker 3: you know, obviously this is a different court. This is 179 00:11:04,120 --> 00:11:07,920 Speaker 3: a more conservative court of courts that's more skeptical of 180 00:11:07,960 --> 00:11:11,319 Speaker 3: a federal authority and a federal agency authority in particular. 181 00:11:12,840 --> 00:11:15,200 Speaker 3: But that doesn't mean that like everybody should pack it 182 00:11:15,280 --> 00:11:18,520 Speaker 3: up and go home. It just means that, you know, 183 00:11:18,600 --> 00:11:21,520 Speaker 3: as with any challenge in litigation, you have to be 184 00:11:21,720 --> 00:11:26,280 Speaker 3: forward thinking and you know, and kind of smart about 185 00:11:26,320 --> 00:11:28,840 Speaker 3: how you approach litigation and think about where the risk 186 00:11:28,960 --> 00:11:31,960 Speaker 3: is and think about where you can make progress despite 187 00:11:32,000 --> 00:11:34,839 Speaker 3: that risk. And as Sam I think kind of previewed, 188 00:11:35,600 --> 00:11:38,280 Speaker 3: you know, there's lots of sort of bread and butter 189 00:11:39,120 --> 00:11:41,839 Speaker 3: environmental litigation that just isn't going to make its way 190 00:11:41,920 --> 00:11:44,360 Speaker 3: up to the Supreme Court because it doesn't implicate the 191 00:11:44,440 --> 00:11:47,760 Speaker 3: kind of big picture issues or principles that the Supreme 192 00:11:47,760 --> 00:11:50,360 Speaker 3: Court is concerned about, and that those. 193 00:11:50,160 --> 00:11:52,400 Speaker 4: Are things like you know, when a. 194 00:11:52,400 --> 00:11:55,720 Speaker 3: Facility gets built, it has to you know, get certain 195 00:11:55,760 --> 00:11:58,480 Speaker 3: permits and then those permits need to be enforced in 196 00:11:58,559 --> 00:12:02,760 Speaker 3: our federal environs, going to laws allow citizens people who 197 00:12:02,840 --> 00:12:05,480 Speaker 3: live you know, across the fence line from these really 198 00:12:05,480 --> 00:12:12,440 Speaker 3: polluting facilities too, to help enforce those permitting conditions, right. 199 00:12:12,480 --> 00:12:14,480 Speaker 3: And so those are the kinds of suits where it's 200 00:12:14,520 --> 00:12:16,960 Speaker 3: it's just about a specific permit and whether or not 201 00:12:17,000 --> 00:12:20,400 Speaker 3: it's being complied with. It's not about some big question 202 00:12:20,520 --> 00:12:21,560 Speaker 3: of federal power. 203 00:12:21,800 --> 00:12:22,040 Speaker 4: Right. 204 00:12:23,120 --> 00:12:25,120 Speaker 3: So, you know, those are the kinds of things where 205 00:12:25,120 --> 00:12:29,240 Speaker 3: if you hold people to their legal obligations, you can 206 00:12:30,160 --> 00:12:33,720 Speaker 3: you know, have an effect in these in these frontline communities, 207 00:12:33,760 --> 00:12:38,880 Speaker 3: on these facilities that you know, unfortunately and you know wrongly, 208 00:12:39,000 --> 00:12:42,719 Speaker 3: are are disproportionately burdening these these people. But that's the 209 00:12:42,760 --> 00:12:46,800 Speaker 3: kind of litigation that's not gonna you know, that doesn't 210 00:12:46,800 --> 00:12:48,520 Speaker 3: really happen in the shadow of the Suprene Court. And 211 00:12:48,559 --> 00:12:52,200 Speaker 3: even in figure cases. You know, we at our Justice 212 00:12:53,480 --> 00:12:56,760 Speaker 3: had a pretty important Clean Water Act case a couple 213 00:12:56,760 --> 00:13:01,280 Speaker 3: of years ago that our litigators what for the Supreme Court. 214 00:13:02,600 --> 00:13:05,720 Speaker 3: And you know, it was the five four version, not 215 00:13:05,760 --> 00:13:10,160 Speaker 3: the sixt three version. But even so, you know, we 216 00:13:10,240 --> 00:13:12,320 Speaker 3: still won that case and would have won it under 217 00:13:12,360 --> 00:13:15,280 Speaker 3: this court. So and that's just a matter of being, 218 00:13:15,440 --> 00:13:18,400 Speaker 3: you know, understanding how this Court looks at statutes, understanding 219 00:13:18,480 --> 00:13:21,040 Speaker 3: the perspective of the Supreme Court, and speaking in the 220 00:13:21,120 --> 00:13:23,840 Speaker 3: language they want to be spoken to. Right, So that's 221 00:13:23,920 --> 00:13:28,440 Speaker 3: just litigating well, and you can still win cases that way. 222 00:13:28,520 --> 00:13:30,880 Speaker 3: So you know, I don't mean to be like rosy 223 00:13:30,880 --> 00:13:34,680 Speaker 3: eyed about everything, but I think there's a certain degree 224 00:13:34,679 --> 00:13:37,440 Speaker 3: of just like, really good glorying will still win cases, 225 00:13:37,480 --> 00:13:40,120 Speaker 3: and really strategic glorying can still make a big difference. 226 00:13:40,640 --> 00:13:43,959 Speaker 2: I'm curious what you both think about some of some 227 00:13:44,040 --> 00:13:48,960 Speaker 2: of the quote unquote side deal that the aspects of 228 00:13:49,000 --> 00:13:53,040 Speaker 2: that related to the IRA, especially in terms of you know, 229 00:13:53,320 --> 00:14:01,120 Speaker 2: permitting and NEPA and the ways that what at least 230 00:14:01,120 --> 00:14:05,280 Speaker 2: has been kind of reported on so far seems to 231 00:14:06,080 --> 00:14:10,079 Speaker 2: be getting around some of our kind of you know, 232 00:14:10,400 --> 00:14:15,120 Speaker 2: environmental laws in favor of permitting things like pipeline. And 233 00:14:15,559 --> 00:14:18,040 Speaker 2: I want to ask you specifically about the Mountain Valley 234 00:14:18,080 --> 00:14:21,080 Speaker 2: pipeline in a minute too, but in general, yeah, I 235 00:14:21,080 --> 00:14:25,200 Speaker 2: guess how is Earth Justice approaching that that conversation and 236 00:14:25,640 --> 00:14:28,560 Speaker 2: what are the things that you're kind of hoping to 237 00:14:29,400 --> 00:14:31,760 Speaker 2: not see in the final version of that. 238 00:14:32,160 --> 00:14:35,000 Speaker 1: Well, you know, this is Friday, August twelfth. It's a 239 00:14:35,000 --> 00:14:40,400 Speaker 1: big day for passing the overall IRA. So you know, 240 00:14:40,480 --> 00:14:43,680 Speaker 1: first and foremost, we're looking forward to passage of the 241 00:14:43,680 --> 00:14:48,280 Speaker 1: bill and we're looking forward to President Biden signing it. 242 00:14:48,280 --> 00:14:51,600 Speaker 1: It's worth noting that, you know, the draft of this 243 00:14:51,720 --> 00:14:55,640 Speaker 1: side deal that we have, which is kind of freakishly 244 00:14:55,840 --> 00:15:00,080 Speaker 1: watermarked as API draft, is from several weeks ago, and 245 00:15:00,120 --> 00:15:05,200 Speaker 1: there's been no indication from Senator Schumer or Senator Mansion's 246 00:15:05,200 --> 00:15:09,280 Speaker 1: office they haven't. We haven't seen a more recent version 247 00:15:09,320 --> 00:15:10,960 Speaker 1: of this side deal. In fact, the version that we 248 00:15:11,040 --> 00:15:14,320 Speaker 1: have seen doesn't even include what it. What we gather 249 00:15:14,480 --> 00:15:16,760 Speaker 1: are some specific deals about the the m v P 250 00:15:16,920 --> 00:15:19,920 Speaker 1: the amount of value pipeline. So so a lot of 251 00:15:19,920 --> 00:15:23,640 Speaker 1: what I'll say here is based on something that may 252 00:15:23,680 --> 00:15:27,200 Speaker 1: not be the current deal. I mean that said that, 253 00:15:27,400 --> 00:15:30,000 Speaker 1: the version that we saw from a few weeks ago 254 00:15:30,320 --> 00:15:35,520 Speaker 1: includes a couple of major provisions that are problematic on 255 00:15:35,800 --> 00:15:40,760 Speaker 1: their own. One is a series of provisions that are 256 00:15:41,200 --> 00:15:45,680 Speaker 1: designed to uh in quotes, streamline the permitting process, and 257 00:15:45,720 --> 00:15:50,520 Speaker 1: what that functionally means is making it harder to well 258 00:15:50,560 --> 00:15:54,800 Speaker 1: making making it easier for agencies to do NEPA analyzes 259 00:15:54,880 --> 00:15:59,600 Speaker 1: by by making those analyzes less thorough or allowing them 260 00:15:59,600 --> 00:16:02,320 Speaker 1: to do less thorough analyzes, and then by making it 261 00:16:02,360 --> 00:16:06,080 Speaker 1: harder for people to comment and seek judicial review on 262 00:16:06,400 --> 00:16:11,080 Speaker 1: those analyzes. You know, for example, the statute of limitations 263 00:16:11,160 --> 00:16:14,960 Speaker 1: for NEPA challenges in most cases of six years, and 264 00:16:15,200 --> 00:16:18,120 Speaker 1: under this, under the draft that we've seen, it would 265 00:16:18,120 --> 00:16:21,040 Speaker 1: be five months in some cases, And that may seem like, well, 266 00:16:21,080 --> 00:16:22,880 Speaker 1: that geez, that five months you should you should be 267 00:16:22,920 --> 00:16:24,560 Speaker 1: able to know if there's a problem with the project, 268 00:16:24,600 --> 00:16:27,440 Speaker 1: But in fact, many of these projects get approved long 269 00:16:27,520 --> 00:16:30,680 Speaker 1: before anyone in a community has any idea that that 270 00:16:30,800 --> 00:16:34,480 Speaker 1: something is up. And so given the way that we 271 00:16:35,040 --> 00:16:38,440 Speaker 1: notify communities about what's going on, five months is often 272 00:16:38,440 --> 00:16:40,720 Speaker 1: a laughably short period of time for them to be 273 00:16:40,800 --> 00:16:43,720 Speaker 1: able to respond in court. There's also a bunch of 274 00:16:43,800 --> 00:16:48,920 Speaker 1: other provisions that essentially require the president to prioritize oil 275 00:16:48,960 --> 00:16:52,440 Speaker 1: and gas large oil and gas development for special attention 276 00:16:52,760 --> 00:16:57,480 Speaker 1: through the permitting process and anyway. And there's also some 277 00:16:57,560 --> 00:17:01,040 Speaker 1: things that affect the Clean Water Act. There's some things 278 00:17:01,080 --> 00:17:07,199 Speaker 1: that that are generally pro electricity infrastructure, but also contains 279 00:17:07,200 --> 00:17:09,200 Speaker 1: some problematic visions. So there's a lot of stuff in there. 280 00:17:09,280 --> 00:17:12,040 Speaker 1: We don't really know what the final deal is going 281 00:17:12,080 --> 00:17:16,320 Speaker 1: to be, but we also know that, unlike the IRA, 282 00:17:16,600 --> 00:17:19,000 Speaker 1: there's going to be a real legislative conversation about this. 283 00:17:19,960 --> 00:17:22,520 Speaker 1: We know that, you know, the House hasn't already hasn't 284 00:17:22,520 --> 00:17:24,480 Speaker 1: passed this. This may be a deal among a couple 285 00:17:24,480 --> 00:17:26,960 Speaker 1: of senators, but that doesn't mean that the House of 286 00:17:27,080 --> 00:17:30,720 Speaker 1: Representative is going to do it. And you know, as 287 00:17:30,760 --> 00:17:33,080 Speaker 1: we hope the IRA is going to be passed and 288 00:17:33,119 --> 00:17:35,480 Speaker 1: this side deal is going to have to pass independently, 289 00:17:36,680 --> 00:17:38,560 Speaker 1: I'll let Kurtate talk a little bit about what the 290 00:17:38,640 --> 00:17:41,080 Speaker 1: rumors of what we've heard about this Mountain Valley pipeline, 291 00:17:41,160 --> 00:17:44,320 Speaker 1: and you know, the side deal also includes this slightly 292 00:17:45,359 --> 00:17:47,640 Speaker 1: odd judicial review provision as well. 293 00:17:47,880 --> 00:17:50,000 Speaker 2: Yeah, Kret, can you talk a little bit about the 294 00:17:50,040 --> 00:17:54,880 Speaker 2: Mountain Valley pipeline and also, like related to that, the 295 00:17:54,400 --> 00:17:57,440 Speaker 2: the way that at least what we've seen and what's 296 00:17:57,480 --> 00:17:59,639 Speaker 2: been you know, kind of shared with the press, the 297 00:17:59,680 --> 00:18:07,520 Speaker 2: way that it would dictate jurisdiction seems really troubling, I think. So, Yeah, 298 00:18:07,560 --> 00:18:10,080 Speaker 2: I'd love to hear you your take on that. 299 00:18:10,400 --> 00:18:15,199 Speaker 3: Yeah, So, as Sam kind of previewed for when it 300 00:18:15,200 --> 00:18:17,880 Speaker 3: comes to Mount Value of Pipeline. We don't even have 301 00:18:18,040 --> 00:18:21,480 Speaker 3: you know, the draft text of the provision. We have 302 00:18:21,560 --> 00:18:26,440 Speaker 3: kind of a rumor that Mount Valley Pipeline and its 303 00:18:26,520 --> 00:18:32,280 Speaker 3: backers want and have I guess secured language that would 304 00:18:32,280 --> 00:18:34,920 Speaker 3: take cases out of the Fourth Circuit, which is where 305 00:18:34,920 --> 00:18:39,040 Speaker 3: they're filed under the default you know, like federal statutes 306 00:18:39,560 --> 00:18:43,160 Speaker 3: and I think potentially put them into the d C Circuit. 307 00:18:43,359 --> 00:18:48,000 Speaker 3: And the reason Mount Value Pipeline wants this. 308 00:18:48,600 --> 00:18:49,960 Speaker 4: Is because. 309 00:18:51,560 --> 00:18:54,960 Speaker 3: Basically, the way that courts of appeals work is, you know, 310 00:18:55,000 --> 00:18:57,639 Speaker 3: most of them have a rule that says, you know, 311 00:18:57,680 --> 00:19:00,960 Speaker 3: when one panel which is three judges, gets assigned to 312 00:19:01,040 --> 00:19:05,000 Speaker 3: a case, if a later case comes up that you know, 313 00:19:05,119 --> 00:19:08,240 Speaker 3: involves the same project or it's you know, a set 314 00:19:08,240 --> 00:19:11,160 Speaker 3: of issues or similar record, you know, it's just more 315 00:19:11,160 --> 00:19:14,520 Speaker 3: efficient to asside those to the same panel because like 316 00:19:14,560 --> 00:19:19,399 Speaker 3: they're already familiar with it. And so Mount Value Pipeline's 317 00:19:19,440 --> 00:19:22,280 Speaker 3: first case got assigned to a panel in the Fourth 318 00:19:22,280 --> 00:19:26,639 Speaker 3: Circuit and most of the later cases related to that 319 00:19:26,720 --> 00:19:30,399 Speaker 3: pipeline have also been assigned to the same panel, and 320 00:19:30,600 --> 00:19:33,560 Speaker 3: Mount Value Pipelines upset that it has lost some of 321 00:19:33,560 --> 00:19:38,560 Speaker 3: these cases and already complaint to the Fourth Circuit itself, 322 00:19:38,760 --> 00:19:41,240 Speaker 3: so you know in some of the decisions that it's lost, 323 00:19:41,320 --> 00:19:43,679 Speaker 3: and I should be clear it hasn't lost all of 324 00:19:43,680 --> 00:19:47,359 Speaker 3: these decisions. When when Mount Value Pipeline is making this claim, 325 00:19:48,119 --> 00:19:52,520 Speaker 3: it excludes from the baseline of the number of decisions 326 00:19:52,520 --> 00:19:55,440 Speaker 3: that it's talking about a bunch of decisions related to condemnation, 327 00:19:55,600 --> 00:19:58,399 Speaker 3: which is its authority to take land for the pipeline. 328 00:19:59,240 --> 00:19:59,840 Speaker 4: Almost all of. 329 00:20:00,240 --> 00:20:03,120 Speaker 3: The same group of judges has upheld so like allowing 330 00:20:03,160 --> 00:20:05,720 Speaker 3: them to take private property and their federal statutes to 331 00:20:05,720 --> 00:20:08,119 Speaker 3: build their pipeline, So it kicks those out of the 332 00:20:08,160 --> 00:20:11,680 Speaker 3: denominator to make the numbers look less favorable to it. 333 00:20:11,760 --> 00:20:14,720 Speaker 3: And then it says, you know, we're losing more of 334 00:20:14,720 --> 00:20:17,199 Speaker 3: these cases than we think we should under like the 335 00:20:17,280 --> 00:20:21,480 Speaker 3: law of averages, I guess, and it's already complained to 336 00:20:21,560 --> 00:20:24,840 Speaker 3: the Fourth Circuit in its petitions. You know, when it 337 00:20:24,880 --> 00:20:27,600 Speaker 3: loses a case, it's petitioned for rehearing on bog which 338 00:20:27,680 --> 00:20:32,120 Speaker 3: just means it's asked full Fourth Circuit to consider these decisions. 339 00:20:32,160 --> 00:20:35,560 Speaker 3: And it's kind of jabbed at the panel in those filings, 340 00:20:35,640 --> 00:20:38,520 Speaker 3: and the Fourth Circuit has been full Fourth Circuit, so 341 00:20:38,560 --> 00:20:41,400 Speaker 3: including other judges right, hasn't. 342 00:20:41,080 --> 00:20:42,720 Speaker 4: Taken the bait. 343 00:20:42,720 --> 00:20:46,119 Speaker 3: It hasn't thought that there was you know, worthwhile merit 344 00:20:46,160 --> 00:20:49,879 Speaker 3: to those claims. And it actually moved to basically disqualified 345 00:20:49,880 --> 00:20:53,119 Speaker 3: the panel recently and asked the Fourth Circuit to assign 346 00:20:53,119 --> 00:20:55,359 Speaker 3: these cases to a different panel, and the Fourth Circuit 347 00:20:55,400 --> 00:21:00,280 Speaker 3: said no. And you know, just to be clear, it's 348 00:21:00,320 --> 00:21:03,680 Speaker 3: not like losing all these cases at all. If you 349 00:21:03,800 --> 00:21:06,919 Speaker 3: read these decisions, you know the panel will accept some 350 00:21:07,040 --> 00:21:09,280 Speaker 3: of the claims, it will reject some of the claims. 351 00:21:09,280 --> 00:21:11,800 Speaker 3: They're like thoroughly recent decisions. It's not like they're like 352 00:21:11,880 --> 00:21:17,639 Speaker 3: knee jerk anti pipeline decisions. They're just holding the federal agencies, 353 00:21:17,680 --> 00:21:20,480 Speaker 3: which you know, have obligations under federal statutes. 354 00:21:20,560 --> 00:21:21,400 Speaker 4: They're burdens. 355 00:21:21,760 --> 00:21:25,400 Speaker 3: And so I guess, having you know, failed to make 356 00:21:25,440 --> 00:21:29,639 Speaker 3: an argument that would win in court, now Value Pipeline 357 00:21:29,720 --> 00:21:36,440 Speaker 3: is now gotten its backers to take these cases away. 358 00:21:36,160 --> 00:21:38,520 Speaker 4: From the Fourth Circuit and put them in the DC Circuit. 359 00:21:38,640 --> 00:21:42,040 Speaker 3: And I have to say, you know, reading these decisions, 360 00:21:42,160 --> 00:21:44,240 Speaker 3: I didn't work out these cases. So all I've got 361 00:21:44,280 --> 00:21:46,240 Speaker 3: is read some of the opinions, but they don't strike 362 00:21:46,320 --> 00:21:47,960 Speaker 3: me as the kind of opinions that would come out 363 00:21:48,000 --> 00:21:50,400 Speaker 3: differently if you put them in front of a different 364 00:21:50,400 --> 00:21:54,840 Speaker 3: set of judges, and that's like psychoanalyzed judges. But I 365 00:21:54,840 --> 00:21:57,080 Speaker 3: can't imagine that the DC Circuit is going to be 366 00:21:57,520 --> 00:22:01,560 Speaker 3: you know, that pleased that you know, this pipeline company 367 00:22:01,680 --> 00:22:04,680 Speaker 3: thinks that, like, you know, they've they looked around the 368 00:22:04,720 --> 00:22:07,680 Speaker 3: country and wanted to pick their judges and decided on. 369 00:22:07,680 --> 00:22:08,560 Speaker 4: The d C Circuit. 370 00:22:08,640 --> 00:22:10,960 Speaker 3: You know, I don't think federal judges in general like 371 00:22:11,000 --> 00:22:15,000 Speaker 3: the idea of judge shopping in that way or implying that, 372 00:22:15,080 --> 00:22:17,200 Speaker 3: you know, the Fourth Circuit is biased. Those are their 373 00:22:17,200 --> 00:22:20,399 Speaker 3: colleagues too, So I'm not really sure it's going to 374 00:22:20,440 --> 00:22:21,040 Speaker 3: work out. 375 00:22:20,880 --> 00:22:23,440 Speaker 4: Any better for them at the end. 376 00:22:23,920 --> 00:22:26,679 Speaker 3: But you know, just am your question kind of hinted 377 00:22:26,680 --> 00:22:29,840 Speaker 3: at it that it just as a bottom line matter, 378 00:22:29,920 --> 00:22:34,960 Speaker 3: it's sort of distressing that that a really powerful industry 379 00:22:35,560 --> 00:22:41,479 Speaker 3: group can pick its judges in its cases. Yeah, in 380 00:22:41,600 --> 00:22:45,160 Speaker 3: order to kind of jerrymander the outcomes that at once 381 00:22:45,880 --> 00:22:49,119 Speaker 3: that that just on its face looks really. 382 00:22:48,880 --> 00:22:51,800 Speaker 2: Bad, seems like a bad precedent to set. 383 00:22:53,840 --> 00:22:57,119 Speaker 1: Yeah, at the same time, it's ironic that that the 384 00:22:57,119 --> 00:22:59,800 Speaker 1: they want to be in the d C circuit because 385 00:23:01,080 --> 00:23:04,400 Speaker 1: you know the d C Circuit is not the Fifth Circuit. 386 00:23:04,800 --> 00:23:09,320 Speaker 1: In fact, as as environmental lawyers, I you know, that's 387 00:23:09,359 --> 00:23:11,720 Speaker 1: not a bad place for us. It tends to be 388 00:23:11,760 --> 00:23:17,920 Speaker 1: a highly technocratic and very you know. It's back when 389 00:23:17,920 --> 00:23:20,120 Speaker 1: I was an active litigator, that was my favorite court 390 00:23:20,200 --> 00:23:22,240 Speaker 1: to litigate in because they dug in and they would 391 00:23:22,280 --> 00:23:25,720 Speaker 1: really get to know the details of the arguments. And 392 00:23:26,359 --> 00:23:28,880 Speaker 1: if I'm not at all sure that if I were 393 00:23:28,880 --> 00:23:31,119 Speaker 1: an industry that that's where I go. Now, certainly, if 394 00:23:31,160 --> 00:23:32,959 Speaker 1: they had said we want to go to the Fifth Circuit, 395 00:23:33,520 --> 00:23:37,720 Speaker 1: I would have number one said, well, I can understand why, 396 00:23:38,400 --> 00:23:40,240 Speaker 1: and number two I would have been all the more 397 00:23:40,280 --> 00:23:45,320 Speaker 1: distressed that that they really were just, you know, forum 398 00:23:45,359 --> 00:23:49,600 Speaker 1: shopping in the most naked way. But you know, so 399 00:23:49,760 --> 00:23:54,200 Speaker 1: anyway that I share Curty's concern that that we're moving 400 00:23:54,240 --> 00:23:57,560 Speaker 1: specific cases around, I do think it's sort of funny 401 00:23:57,560 --> 00:23:59,720 Speaker 1: that they may be out of the frying pan and 402 00:23:59,720 --> 00:24:00,439 Speaker 1: into the fire. 403 00:24:00,800 --> 00:24:02,600 Speaker 2: Yeah, it'll depend on the. 404 00:24:02,520 --> 00:24:04,240 Speaker 1: Panel draw they get in the DC Circuit. 405 00:24:04,440 --> 00:24:07,080 Speaker 2: Yeah, yeah, I know. I thought that was weird too. 406 00:24:07,119 --> 00:24:08,919 Speaker 2: It was like, I don't it's not like that's a 407 00:24:08,920 --> 00:24:12,359 Speaker 2: slim dunk for them. Okay, So looking ahead, at the 408 00:24:12,400 --> 00:24:17,280 Speaker 2: next session of the Supreme Court. Obviously, West Virginia versus 409 00:24:17,280 --> 00:24:20,640 Speaker 2: EPA is not the only you know, environment or climate 410 00:24:20,680 --> 00:24:24,439 Speaker 2: related case that they have taken up. What should we 411 00:24:24,480 --> 00:24:27,879 Speaker 2: be looking out for? What's coming up next? I know, Sam, 412 00:24:27,960 --> 00:24:29,960 Speaker 2: you kind of wrote about this recently. 413 00:24:30,440 --> 00:24:33,720 Speaker 1: Yeah, Well, the blockbuster case of next rum or at 414 00:24:33,760 --> 00:24:40,440 Speaker 1: least so far the likely blockbuster is is the Sacket case, 415 00:24:40,480 --> 00:24:44,399 Speaker 1: which involves the Clean Water Act. And you know, the 416 00:24:44,480 --> 00:24:47,920 Speaker 1: Sackets have been serial litigators on this issue and have 417 00:24:48,000 --> 00:24:51,000 Speaker 1: been to the Supreme Court before, where they won nine 418 00:24:51,000 --> 00:24:53,800 Speaker 1: to zero on a fairly straightforward question about whether or 419 00:24:53,800 --> 00:24:55,919 Speaker 1: not they had a right to be in court at 420 00:24:55,920 --> 00:25:02,560 Speaker 1: all on this They're a couple whose claim is based 421 00:25:02,600 --> 00:25:05,520 Speaker 1: on their desire to get a permit to do some 422 00:25:05,600 --> 00:25:09,080 Speaker 1: development and their belief that they shouldn't even have to 423 00:25:09,080 --> 00:25:11,439 Speaker 1: get a permit. To be clear, if they had applied, 424 00:25:11,440 --> 00:25:13,040 Speaker 1: they almost certainly would have gotten a permit, but they 425 00:25:13,040 --> 00:25:14,640 Speaker 1: don't even feel like they should have to get one. 426 00:25:15,400 --> 00:25:17,239 Speaker 1: And the permit is to is to fill in some 427 00:25:17,280 --> 00:25:22,800 Speaker 1: wetlands on their property. And the real underlying question is 428 00:25:23,000 --> 00:25:26,720 Speaker 1: what does the Clean Water Act protect? And everybody understands 429 00:25:26,840 --> 00:25:30,040 Speaker 1: that the Clean Water Act protects lakes and rivers and 430 00:25:31,520 --> 00:25:35,080 Speaker 1: the ocean, you know, big rivers and the ocean. But 431 00:25:35,200 --> 00:25:39,520 Speaker 1: the fight for some time from the right has been 432 00:25:39,600 --> 00:25:43,399 Speaker 1: to constrict the applicability of the Clean Water Act to 433 00:25:43,600 --> 00:25:46,880 Speaker 1: smaller streams and to wetlands. And of course any scientists 434 00:25:46,920 --> 00:25:48,679 Speaker 1: would tell you that there's no way to protect the 435 00:25:48,720 --> 00:25:52,800 Speaker 1: water quality and downstream rivers and lakes in those bodies 436 00:25:52,840 --> 00:25:57,080 Speaker 1: that nobody nobody contends aren't protected by the Clean Water Act. 437 00:25:57,080 --> 00:25:58,800 Speaker 1: But if you want to protect those water bodies, you 438 00:25:58,840 --> 00:26:01,360 Speaker 1: need to protect the upper parts of the watershed, which 439 00:26:01,400 --> 00:26:04,960 Speaker 1: often involves smaller rivers, uh and streams, and then the 440 00:26:04,960 --> 00:26:10,600 Speaker 1: wetlands that that feed them. So the there's a lot 441 00:26:10,640 --> 00:26:13,600 Speaker 1: of industries that would like to be able to fill 442 00:26:13,600 --> 00:26:19,399 Speaker 1: in wetlands and uh and and frankly pollute areas that 443 00:26:19,400 --> 00:26:24,560 Speaker 1: that currently the Clean Water Act protects. And by arguing 444 00:26:24,560 --> 00:26:26,840 Speaker 1: that the Clean Water Act doesn't protect those things, they're 445 00:26:27,000 --> 00:26:31,000 Speaker 1: essentially an accomplished deregulation. So they're not changing the protections 446 00:26:31,080 --> 00:26:34,480 Speaker 1: of the Clean Water Act, they're changing where they apply. Now, 447 00:26:34,960 --> 00:26:37,840 Speaker 1: the Court has been very interested in this issue for 448 00:26:37,880 --> 00:26:42,080 Speaker 1: a while, and back when Justice Scalia was around, he 449 00:26:42,119 --> 00:26:45,400 Speaker 1: wrote an important opinion that only that only attracted three 450 00:26:45,440 --> 00:26:47,399 Speaker 1: other boats. It was it was only an opinion of 451 00:26:47,440 --> 00:26:51,440 Speaker 1: four justices and therefore wasn't controlling. But it suggested a 452 00:26:51,520 --> 00:26:55,320 Speaker 1: much more constricted understanding of what the Clean Water Act protects. 453 00:26:55,720 --> 00:26:59,080 Speaker 1: And we know that that I you know, I think 454 00:26:59,119 --> 00:27:03,280 Speaker 1: everybody is pred thing that this Court will will try 455 00:27:03,320 --> 00:27:06,680 Speaker 1: to put Justice Scalia's test in charge, which would again 456 00:27:06,760 --> 00:27:09,280 Speaker 1: be a much more restricted understanding of what the Clean 457 00:27:09,320 --> 00:27:12,679 Speaker 1: Water Act protects. That's that's the blockbuster. But there there 458 00:27:12,720 --> 00:27:17,360 Speaker 1: are some other, maybe less less appreciated cases that will 459 00:27:17,400 --> 00:27:18,959 Speaker 1: have a lot to do with environmental law. I mean, 460 00:27:18,960 --> 00:27:21,680 Speaker 1: it's not always environmental law cases that in fact that 461 00:27:21,680 --> 00:27:24,920 Speaker 1: that effect what environmental law does, because administrative law, the 462 00:27:25,000 --> 00:27:28,520 Speaker 1: law of regulations is props up and lots of lots 463 00:27:28,520 --> 00:27:30,840 Speaker 1: of context, not just the environment right right. 464 00:27:31,119 --> 00:27:33,840 Speaker 2: Well, well, I have one follow up on the SACA case. 465 00:27:33,880 --> 00:27:36,800 Speaker 2: Do you have any sense of kind of where that 466 00:27:36,960 --> 00:27:43,800 Speaker 2: case came from in terms of you know, are I mean, 467 00:27:43,520 --> 00:27:46,639 Speaker 2: I'm I'm curious if it's like, is it a RAGA case? 468 00:27:46,920 --> 00:27:49,679 Speaker 2: Is it like how coordinated is well? 469 00:27:49,720 --> 00:27:52,359 Speaker 1: I mean, you know, it's you know, let's put it 470 00:27:52,400 --> 00:27:57,119 Speaker 1: this way. If it is awfully convenient for the many 471 00:27:58,560 --> 00:28:01,960 Speaker 1: organizations that are supporting the Sackets, that the Sackets themselves 472 00:28:02,119 --> 00:28:07,159 Speaker 1: or are a sort of you know, libertarian face of this. 473 00:28:07,160 --> 00:28:10,000 Speaker 1: This with just you know this, this purple you know, 474 00:28:10,040 --> 00:28:12,000 Speaker 1: this couple that you know seems like just a mom 475 00:28:12,040 --> 00:28:15,119 Speaker 1: and pop trying to get something done. But it's it 476 00:28:15,160 --> 00:28:18,159 Speaker 1: should come as no surprise that organizations like the American 477 00:28:18,200 --> 00:28:22,440 Speaker 1: Petroleum Institute are happy to file major amicus briefs and 478 00:28:22,840 --> 00:28:26,840 Speaker 1: the Sackets are being represented by by folks who are 479 00:28:27,480 --> 00:28:30,679 Speaker 1: movement and agenda lawyers. So this is this may not 480 00:28:30,920 --> 00:28:33,000 Speaker 1: have been you know, I'm not sure anybody called them 481 00:28:33,080 --> 00:28:35,200 Speaker 1: up and say, hey, you should try to build something 482 00:28:35,200 --> 00:28:36,520 Speaker 1: and then we'll make a case out of it. But 483 00:28:36,600 --> 00:28:39,720 Speaker 1: certainly when their case popped up, it attracted a lot 484 00:28:39,760 --> 00:28:42,000 Speaker 1: of attention and a lot of support because it was 485 00:28:42,000 --> 00:28:45,360 Speaker 1: a it was a vehicle that a lot of not 486 00:28:45,680 --> 00:28:50,400 Speaker 1: mom and pop operations were interested in seeing succeed. 487 00:28:51,440 --> 00:28:54,760 Speaker 2: Right right, Who's who's representing them. 488 00:28:55,680 --> 00:28:57,600 Speaker 4: It's the Pacific Legal Foundation. 489 00:28:58,280 --> 00:29:02,800 Speaker 2: Oh okay, I mean they're not this is not. 490 00:29:05,000 --> 00:29:07,960 Speaker 1: Look We're we're an organization with a point of view, 491 00:29:08,040 --> 00:29:09,800 Speaker 1: and I'm sure that there are people at the Pacific 492 00:29:09,880 --> 00:29:12,400 Speaker 1: Legal Foundation who would say, oh, well, Earth Justice is 493 00:29:12,440 --> 00:29:14,320 Speaker 1: representing them. The difference is we don't have a whole 494 00:29:14,320 --> 00:29:17,480 Speaker 1: lot of industries who are also feeding us money in 495 00:29:17,600 --> 00:29:22,440 Speaker 1: order to do that. You know, we're we're we are 496 00:29:22,480 --> 00:29:25,560 Speaker 1: not on the side of industry and were don't you know, 497 00:29:26,560 --> 00:29:29,240 Speaker 1: we don't have the American Petroleum Institute filing next to us, 498 00:29:29,960 --> 00:29:31,360 Speaker 1: right right, Yeah. 499 00:29:31,400 --> 00:29:34,560 Speaker 3: And I'll just you know, just to inject a bit 500 00:29:34,600 --> 00:29:38,120 Speaker 3: of you know, I think Sam's laid out just how 501 00:29:38,160 --> 00:29:41,160 Speaker 3: important the Clean Water Act is and how important a 502 00:29:41,240 --> 00:29:45,000 Speaker 3: decision that restricts its scope and what it is capable 503 00:29:45,040 --> 00:29:49,320 Speaker 3: of protecting is to you know, like reel people on the. 504 00:29:49,280 --> 00:29:52,360 Speaker 4: Ground, many of whom are our clients. 505 00:29:52,840 --> 00:29:56,080 Speaker 3: But it's probably also worth like just noting that these 506 00:29:56,120 --> 00:30:00,400 Speaker 3: briefs that Sam mentioned, you know, from people like the 507 00:30:00,520 --> 00:30:04,880 Speaker 3: API Staper Commerce, Americans for Prosperity, you know, a group 508 00:30:04,960 --> 00:30:08,200 Speaker 3: of Red states again led by West Virginia. 509 00:30:08,680 --> 00:30:11,120 Speaker 4: You know these briefs, aren't you know? 510 00:30:11,120 --> 00:30:13,520 Speaker 3: There's something similar to what was happening in West Virginia 511 00:30:13,760 --> 00:30:16,680 Speaker 3: versus EPA going on in these cases. They're not just 512 00:30:16,760 --> 00:30:20,200 Speaker 3: about the Clean Water Act. They're also kind of trying 513 00:30:20,240 --> 00:30:24,920 Speaker 3: to seed these anti regulatory principles in the same way 514 00:30:25,200 --> 00:30:28,560 Speaker 3: as they succeeded in West Virginia. They're asking, you know, 515 00:30:28,560 --> 00:30:33,040 Speaker 3: they're telling the court like things like, you know, well, 516 00:30:33,240 --> 00:30:37,479 Speaker 3: the Clean Water Act is you know, addresses like public 517 00:30:37,520 --> 00:30:40,160 Speaker 3: health and safety, and that's traditionally an area of the 518 00:30:40,200 --> 00:30:43,480 Speaker 3: state's control, not the federal government's control. So there's it's 519 00:30:43,480 --> 00:30:46,480 Speaker 3: got to be really clear when there's a federal statue 520 00:30:46,480 --> 00:30:50,880 Speaker 3: that invades that traditional state authority. You know, all these 521 00:30:50,960 --> 00:30:53,880 Speaker 3: kind of clear statement rules is what they're called in 522 00:30:53,960 --> 00:30:57,240 Speaker 3: the law, that basically act as like thoughts on the 523 00:30:57,280 --> 00:31:01,000 Speaker 3: scale against federal power or agency power or this is 524 00:31:01,120 --> 00:31:04,719 Speaker 3: like two of trying to develop additional tools that can 525 00:31:04,760 --> 00:31:09,760 Speaker 3: be used in later cases and later challenges. So it's 526 00:31:09,800 --> 00:31:12,440 Speaker 3: not just it's about the Clean Water Act. All these 527 00:31:12,440 --> 00:31:16,840 Speaker 3: groups have a very obvious interest in avoiding the application 528 00:31:16,920 --> 00:31:19,840 Speaker 3: of the Queen Water Act, right, but it's also that 529 00:31:19,920 --> 00:31:22,760 Speaker 3: they see this as another opportunity before this court to 530 00:31:22,840 --> 00:31:26,120 Speaker 3: kind of establish broader legal principles that they can then 531 00:31:26,280 --> 00:31:27,360 Speaker 3: use going forward. 532 00:31:28,000 --> 00:31:31,840 Speaker 1: You Know, one thing you notice is Kitty and I 533 00:31:31,880 --> 00:31:36,800 Speaker 1: both both worked at the Supreme Court at very different times, 534 00:31:36,840 --> 00:31:40,840 Speaker 1: and when I was there, the swing boat was Justice O'Connor, 535 00:31:40,840 --> 00:31:43,680 Speaker 1: who I worked for, or in some cases Justice Kennedy 536 00:31:43,960 --> 00:31:49,120 Speaker 1: and each Back then, people didn't push these big legal principles. 537 00:31:49,120 --> 00:31:51,800 Speaker 1: They didn't really you know, in some cases they would 538 00:31:51,800 --> 00:31:54,960 Speaker 1: talk about deregulatory ideas or returning power to the states 539 00:31:55,000 --> 00:31:57,760 Speaker 1: to appeal to Justice Kennedy, but in general, people were 540 00:31:57,880 --> 00:32:00,880 Speaker 1: kind of swinging for singles. They were trying to win 541 00:32:01,760 --> 00:32:04,840 Speaker 1: small and individual cases and build big And what you're 542 00:32:04,920 --> 00:32:09,480 Speaker 1: seeing in cases like Sacket is I think the other 543 00:32:09,600 --> 00:32:11,560 Speaker 1: side on these things is assuming that they're going to 544 00:32:11,600 --> 00:32:14,240 Speaker 1: win the narrow case, they're pretty sure they're going to 545 00:32:14,240 --> 00:32:17,040 Speaker 1: win the Sacket's case, and they're swinging for the fences 546 00:32:17,160 --> 00:32:20,520 Speaker 1: to get broader principles. So in the West Virginia versus 547 00:32:20,520 --> 00:32:24,120 Speaker 1: EPA case, all of us on the outside were saying, 548 00:32:24,160 --> 00:32:26,760 Speaker 1: why would they have taken this case about a regulation 549 00:32:26,840 --> 00:32:29,240 Speaker 1: that doesn't even exist if they were going to say 550 00:32:29,240 --> 00:32:32,640 Speaker 1: that the regulation was fine. So we strongly suspect that 551 00:32:32,680 --> 00:32:35,120 Speaker 1: they're going to try to strike this regulation down. So 552 00:32:35,200 --> 00:32:38,640 Speaker 1: the fight is really about how far do they hit 553 00:32:38,720 --> 00:32:40,880 Speaker 1: that ball into the outfield and do they get a 554 00:32:40,880 --> 00:32:42,520 Speaker 1: home run? So what you see in the briefs on 555 00:32:42,560 --> 00:32:46,320 Speaker 1: the right is just egging the court's conservatives on to 556 00:32:46,360 --> 00:32:48,920 Speaker 1: say as much as possible through the vehicle of the case. 557 00:32:49,360 --> 00:32:52,960 Speaker 2: Yeah, yeah, okay, And then you mentioned some other cases 558 00:32:53,040 --> 00:32:59,280 Speaker 2: that could have a big impact on environmental issues in general, 559 00:32:59,360 --> 00:33:02,600 Speaker 2: but are not as necessarily explicitly environmental cases. Could you 560 00:33:03,280 --> 00:33:06,479 Speaker 2: expand on that, which which cases are you kind of 561 00:33:06,600 --> 00:33:08,600 Speaker 2: keeping an eye on in that regard. 562 00:33:08,960 --> 00:33:13,040 Speaker 3: Yeah, There's there's one case called Ross and it's a 563 00:33:13,080 --> 00:33:16,400 Speaker 3: it's actually a constitutional case, it's not an administrative law case, 564 00:33:16,600 --> 00:33:21,600 Speaker 3: and it's about the what's called the dormant Commerce claus 565 00:33:21,640 --> 00:33:25,120 Speaker 3: which is like a law speak for like an unrid 566 00:33:25,280 --> 00:33:28,320 Speaker 3: principle that is derived from the Commerce Clause of the 567 00:33:28,320 --> 00:33:32,960 Speaker 3: Federal Constitution. But basically, this is a case about a 568 00:33:33,160 --> 00:33:37,640 Speaker 3: balve initiative that was passed in California. It's called Proposition twelve, 569 00:33:38,200 --> 00:33:43,880 Speaker 3: and it's a law that prohibits people from selling pork 570 00:33:44,240 --> 00:33:49,440 Speaker 3: in California that is derived from an animal that was 571 00:33:49,480 --> 00:33:52,480 Speaker 3: confined in a cruel manner, which is, you know, to 572 00:33:52,560 --> 00:33:54,960 Speaker 3: find just things like you know, preventing animals from being 573 00:33:55,000 --> 00:33:57,280 Speaker 3: all lie down or turn around or being in a 574 00:33:57,360 --> 00:34:01,560 Speaker 3: space that's too small. And we're pretty users have challenged 575 00:34:02,040 --> 00:34:07,200 Speaker 3: this law at violating what's known as the Dormant Commerce Clause. 576 00:34:07,440 --> 00:34:10,879 Speaker 4: And you know the basic ideas that the. 577 00:34:10,840 --> 00:34:15,880 Speaker 3: Federal Constitution gives Congress the authority to regulate interstate commerce, 578 00:34:15,880 --> 00:34:19,879 Speaker 3: so commerce between states, and so the kind of back 579 00:34:20,160 --> 00:34:23,880 Speaker 3: like principle that the dormant converse clause enforces is the 580 00:34:23,920 --> 00:34:27,880 Speaker 3: idea that, like, if that's Congress's power, then states can't 581 00:34:27,920 --> 00:34:30,400 Speaker 3: do that. And so when states try and do that, 582 00:34:30,400 --> 00:34:34,399 Speaker 3: that violates the so called dormant Commerce Clause. And there's 583 00:34:34,440 --> 00:34:39,200 Speaker 3: like different ways that the Supreme Courts cases describe how 584 00:34:39,400 --> 00:34:42,719 Speaker 3: this principle can be violated. One it is like when 585 00:34:42,760 --> 00:34:44,880 Speaker 3: a state sort of literally writes a law that says 586 00:34:44,920 --> 00:34:48,160 Speaker 3: like you know, if it's if it's Texas, and they 587 00:34:48,160 --> 00:34:51,160 Speaker 3: write a lot it says like Louisiana products can't be 588 00:34:51,239 --> 00:34:51,800 Speaker 3: sold here. 589 00:34:51,800 --> 00:34:52,600 Speaker 4: Or something like that. 590 00:34:52,680 --> 00:34:55,960 Speaker 3: Right, So one is where it's like obviously discriminating against 591 00:34:57,480 --> 00:35:00,239 Speaker 3: against it our state commerce. Another one is this kind 592 00:35:00,280 --> 00:35:05,239 Speaker 3: of mushier balancing test where if a state passes the 593 00:35:05,320 --> 00:35:08,920 Speaker 3: law that burdens interstate commerce, that the courts can kind 594 00:35:08,920 --> 00:35:12,520 Speaker 3: of balance whether or not that like benefits that the 595 00:35:12,560 --> 00:35:14,960 Speaker 3: state is offering and support of that law outweigh the 596 00:35:15,000 --> 00:35:18,120 Speaker 3: burdens on interstate commerce. And the last one, which is 597 00:35:18,160 --> 00:35:20,560 Speaker 3: kind of the most important for the discussion we're having, 598 00:35:20,640 --> 00:35:24,640 Speaker 3: is this principle called the extra territoriality principle, which is 599 00:35:24,680 --> 00:35:27,200 Speaker 3: the idea that if they're even if a law is 600 00:35:27,239 --> 00:35:31,319 Speaker 3: like written to address in state activity, if it has 601 00:35:31,400 --> 00:35:35,319 Speaker 3: effects outside of the state that can raise concerns that 602 00:35:35,400 --> 00:35:39,560 Speaker 3: would require the application of a constitutional test. And you know, 603 00:35:39,560 --> 00:35:43,279 Speaker 3: obviously this case is important on its own facts, but 604 00:35:43,520 --> 00:35:46,760 Speaker 3: the reason it's important in a broader sense is that 605 00:35:47,280 --> 00:35:51,839 Speaker 3: folks have challenge laws like renewable portfolio standards under this 606 00:35:52,040 --> 00:35:56,000 Speaker 3: extra territoriality principle. You know, the idea being if a 607 00:35:56,040 --> 00:35:59,680 Speaker 3: state says, you know, x percentage of our energy has 608 00:35:59,719 --> 00:36:04,160 Speaker 3: to come for renewable sources. We live on an interconnected grid, 609 00:36:04,239 --> 00:36:08,000 Speaker 3: and so that has effect on the production of energy 610 00:36:08,000 --> 00:36:11,239 Speaker 3: outside of the state. And in a sort of like 611 00:36:11,440 --> 00:36:14,960 Speaker 3: weird moment of potential hope, conservative judges, a lot of 612 00:36:14,960 --> 00:36:16,799 Speaker 3: conservative judges, i should say, not all of them, but 613 00:36:17,400 --> 00:36:22,280 Speaker 3: are kind of unhappy with this extra territoriality idea because 614 00:36:22,320 --> 00:36:25,360 Speaker 3: you know, the whole dormant commerce clause enterprise is not 615 00:36:25,800 --> 00:36:29,160 Speaker 3: really based in the text of the constitution in this 616 00:36:29,239 --> 00:36:33,080 Speaker 3: extra territoriality principle is like kind of the most formalist 617 00:36:33,239 --> 00:36:34,960 Speaker 3: of all that, right, It's like, if there are some 618 00:36:35,040 --> 00:36:39,640 Speaker 3: effects that you question, it's constitutionality. And like almost everything 619 00:36:39,800 --> 00:36:43,360 Speaker 3: has effects. Almost everything in our modern world has effects 620 00:36:43,360 --> 00:36:46,879 Speaker 3: outside of the state. And so just Ascorsage actually wrote 621 00:36:46,880 --> 00:36:49,640 Speaker 3: an opinion when he was on the Tenth Circuit upholding 622 00:36:49,880 --> 00:36:54,719 Speaker 3: Colorado's renewable portfolio standards under this under a challenge based 623 00:36:54,760 --> 00:36:58,200 Speaker 3: on this extra territoriality principle. And so you know, I 624 00:36:58,200 --> 00:37:00,680 Speaker 3: think there's a chance that in this in this case, 625 00:37:00,760 --> 00:37:04,600 Speaker 3: the court maybe goes towards limiting that and then like 626 00:37:04,760 --> 00:37:10,880 Speaker 3: keeping those kinds of RPS laws on safer grounds, not 627 00:37:11,120 --> 00:37:12,879 Speaker 3: you know, in the text of the opinion, but sort 628 00:37:12,880 --> 00:37:15,879 Speaker 3: of as a consequence of the opinion. So that's one 629 00:37:15,960 --> 00:37:19,920 Speaker 3: to watch as well. And then there are just kind 630 00:37:19,920 --> 00:37:22,680 Speaker 3: of like other cases that you know, you might not 631 00:37:22,840 --> 00:37:26,760 Speaker 3: think of as environmental cases, but you know, the court's 632 00:37:26,800 --> 00:37:32,880 Speaker 3: hearing a big affirmative action case next term, and you 633 00:37:32,920 --> 00:37:35,440 Speaker 3: know it'll be important to see what the Court says 634 00:37:35,560 --> 00:37:40,200 Speaker 3: about that for things like you know, environmental justice laws 635 00:37:40,320 --> 00:37:45,040 Speaker 3: or projects or programs, and you know which like try 636 00:37:45,080 --> 00:37:49,239 Speaker 3: to protect overburdened communities, and often there is right up 637 00:37:49,239 --> 00:37:52,520 Speaker 3: corollary with race, and so understanding what the court thinks 638 00:37:52,520 --> 00:37:56,040 Speaker 3: about when you can address those situations is going to. 639 00:37:55,960 --> 00:37:56,760 Speaker 4: Be really important. 640 00:37:57,040 --> 00:38:02,040 Speaker 3: There's an administrative law case the court just took where 641 00:38:02,080 --> 00:38:05,120 Speaker 3: it seems like the Court's going to address a pretty 642 00:38:05,160 --> 00:38:09,200 Speaker 3: important issue about when states have standing to sue and 643 00:38:09,320 --> 00:38:11,840 Speaker 3: potentially make it harder for states to have standing. 644 00:38:11,880 --> 00:38:14,879 Speaker 4: And so in a world where the court's. 645 00:38:14,400 --> 00:38:16,640 Speaker 3: You know, make it harder for individual plaintiffs to sue, 646 00:38:16,800 --> 00:38:19,600 Speaker 3: one sort of right spot has been that, at least 647 00:38:19,640 --> 00:38:22,399 Speaker 3: for the environmental community is that, you know, blue state 648 00:38:22,440 --> 00:38:25,719 Speaker 3: coalitions can still bring suits. Obviously there's the trade off 649 00:38:25,760 --> 00:38:29,000 Speaker 3: with the other group of states being able to break 650 00:38:29,040 --> 00:38:31,399 Speaker 3: suits as well. Right, but like that's that's been one 651 00:38:31,440 --> 00:38:34,080 Speaker 3: way to get to court, and so that's that their 652 00:38:34,080 --> 00:38:37,319 Speaker 3: decisions will be watching to see what the court says 653 00:38:37,320 --> 00:38:40,319 Speaker 3: about state standing. And that's totally you know, it's the 654 00:38:40,360 --> 00:38:44,000 Speaker 3: Court's will be taken like maybe two sittings worth of cases, 655 00:38:44,040 --> 00:38:45,879 Speaker 3: so there'll be more more to come. 656 00:38:46,320 --> 00:38:49,640 Speaker 2: Yeah, yeah, is there any sense I mean, like I 657 00:38:49,680 --> 00:38:55,160 Speaker 2: have especially with oil companies, I don't know, Like I 658 00:38:55,560 --> 00:39:00,000 Speaker 2: I wonder if we'll see US oil companies being sued 659 00:39:00,120 --> 00:39:03,560 Speaker 2: in other countries more even if they start to get 660 00:39:03,560 --> 00:39:04,680 Speaker 2: away with things here. 661 00:39:05,360 --> 00:39:08,239 Speaker 1: Well, it's certainly the case that we, you know, Earth 662 00:39:08,400 --> 00:39:12,880 Speaker 1: Justice does have an international program, and our international program 663 00:39:12,960 --> 00:39:18,040 Speaker 1: primarily supports public interest law organizations in other countries. The 664 00:39:18,160 --> 00:39:23,120 Speaker 1: US has a very developed public interests environmental law program. 665 00:39:23,160 --> 00:39:25,440 Speaker 1: And that's not to say it's very very you know, 666 00:39:25,640 --> 00:39:28,240 Speaker 1: like it's enormous. We have about one hundred and eighty lawyers, 667 00:39:28,239 --> 00:39:32,040 Speaker 1: and that makes us huge and you know, a giant 668 00:39:32,120 --> 00:39:35,120 Speaker 1: law firm in the public interest world, but that's still 669 00:39:35,200 --> 00:39:37,880 Speaker 1: pretty small in the grand scheme of things. In other countries, 670 00:39:37,960 --> 00:39:42,200 Speaker 1: it's an order of magnitude, if not less than that, 671 00:39:42,280 --> 00:39:45,040 Speaker 1: in terms of what the resources are there. Having said that, 672 00:39:45,080 --> 00:39:51,080 Speaker 1: those those organizations and regular old people in other countries 673 00:39:51,120 --> 00:39:55,120 Speaker 1: have been very successful in pushing back on international and 674 00:39:55,400 --> 00:39:58,480 Speaker 1: US oil companies for the local harms that have been 675 00:39:58,680 --> 00:40:02,360 Speaker 1: happening where they have resources to bring those cases. Again, 676 00:40:02,400 --> 00:40:05,719 Speaker 1: the public interest legal community in those in countries like 677 00:40:06,200 --> 00:40:12,680 Speaker 1: you know, South Africa or Australia or Latin America, you know, 678 00:40:12,719 --> 00:40:15,560 Speaker 1: in general, they're just much less well resourced than we 679 00:40:15,600 --> 00:40:19,040 Speaker 1: are in the US, and the structures for public interest 680 00:40:19,120 --> 00:40:22,719 Speaker 1: law are much less developed. But the flip side is 681 00:40:23,560 --> 00:40:26,920 Speaker 1: some of those countries have provisions in their constitution that 682 00:40:27,000 --> 00:40:31,480 Speaker 1: are more directly relevant to those claims. And so we're seeing, 683 00:40:31,520 --> 00:40:35,720 Speaker 1: for example, in places like South Africa, where where planets 684 00:40:35,800 --> 00:40:37,879 Speaker 1: have been able to say, hey, look, you know, we 685 00:40:37,920 --> 00:40:40,680 Speaker 1: have legal protections on these things, and you the courts 686 00:40:40,719 --> 00:40:43,320 Speaker 1: need to figure out ways to make bring those protections 687 00:40:43,360 --> 00:40:43,880 Speaker 1: to life. 688 00:40:43,960 --> 00:40:48,160 Speaker 3: I mean, we the federal constitution. Our federal constitution doesn't 689 00:40:48,200 --> 00:40:53,680 Speaker 3: have you know, those kinds of express provisions, but some 690 00:40:53,760 --> 00:40:55,520 Speaker 3: of the state constitutions do. 691 00:40:57,640 --> 00:41:00,279 Speaker 1: So I don't know if I wanted to with that 692 00:41:00,400 --> 00:41:03,200 Speaker 1: up a little bit sure, I mean, there are direct 693 00:41:03,200 --> 00:41:09,440 Speaker 1: state constitutional protections like Montana. I don't know the precise 694 00:41:09,520 --> 00:41:12,560 Speaker 1: language off the top of my head, but Montana's constitution 695 00:41:12,719 --> 00:41:17,960 Speaker 1: does have protections for people to make sure that they 696 00:41:17,960 --> 00:41:20,680 Speaker 1: have a clean, healthy environment. I forget what the exact 697 00:41:20,760 --> 00:41:23,319 Speaker 1: language is, but what that means is that there's an 698 00:41:23,360 --> 00:41:26,160 Speaker 1: ability for people to go for people in Montana to 699 00:41:26,200 --> 00:41:28,200 Speaker 1: go to court to say, hey, this thing that's happening 700 00:41:28,880 --> 00:41:32,920 Speaker 1: violates the state constitution. And then there are also states 701 00:41:32,960 --> 00:41:36,680 Speaker 1: like Louisiana and Hawaii that have public trust doctrines, and 702 00:41:36,840 --> 00:41:39,000 Speaker 1: those are doctrines that say that the state government that 703 00:41:39,080 --> 00:41:45,200 Speaker 1: state land is that there's an obligation of the government 704 00:41:45,480 --> 00:41:49,080 Speaker 1: to be protecting that in the public interest. And in 705 00:41:49,120 --> 00:41:51,760 Speaker 1: some of those states we've been able to make some headway, 706 00:41:51,760 --> 00:41:53,520 Speaker 1: and other public interests litigans have been able to make 707 00:41:53,560 --> 00:41:56,279 Speaker 1: some headway and saying hey, your state courts need to 708 00:41:56,280 --> 00:41:58,640 Speaker 1: do something with these things. These can't just be written 709 00:41:58,640 --> 00:42:01,880 Speaker 1: on paper. And then finally, there are states like New 710 00:42:01,960 --> 00:42:08,080 Speaker 1: York that are enacting transformative legislation like the CLCPA, the 711 00:42:08,080 --> 00:42:10,799 Speaker 1: Climate Leadership and Community Protection Act in New York, and 712 00:42:10,880 --> 00:42:14,359 Speaker 1: those are super important tools, and I think those are 713 00:42:14,360 --> 00:42:20,640 Speaker 1: increasingly going to be the focus of political climate and 714 00:42:22,520 --> 00:42:25,239 Speaker 1: state level climate action because those laws are going to 715 00:42:25,239 --> 00:42:27,600 Speaker 1: be really important, and we're going to see those being 716 00:42:27,640 --> 00:42:31,879 Speaker 1: done both statutorily by legislators and I think also through 717 00:42:31,920 --> 00:42:36,560 Speaker 1: ballot initiatives that we've seen in places like Washington State 718 00:42:36,560 --> 00:42:41,520 Speaker 1: and elsewhere to bring real legal protections at the state 719 00:42:41,600 --> 00:42:42,600 Speaker 1: level into play. 720 00:42:43,000 --> 00:42:45,719 Speaker 2: That actually totally dovetails with my last question, which is 721 00:42:45,760 --> 00:42:48,200 Speaker 2: we kind of touched on this earlier too. I think 722 00:42:48,239 --> 00:42:54,920 Speaker 2: that there's a certain amount of understandable pessimism about litigation 723 00:42:56,080 --> 00:42:58,760 Speaker 2: because ultimately it will end up in the Supreme Court, 724 00:42:58,800 --> 00:43:01,480 Speaker 2: and then the Supreme Court will rule against anything that's 725 00:43:01,520 --> 00:43:04,080 Speaker 2: good for climate. That's that's like the you know, in 726 00:43:04,320 --> 00:43:06,520 Speaker 2: very broad strokes, the sentiment that I hear a lot. 727 00:43:06,640 --> 00:43:09,600 Speaker 2: So I'm curious what your response is to that. 728 00:43:10,320 --> 00:43:12,840 Speaker 1: Oh, I think the courts are going to remain super 729 00:43:12,880 --> 00:43:16,759 Speaker 1: relevant and if anything more relevant. The old model of 730 00:43:17,480 --> 00:43:21,800 Speaker 1: environmental law was to fight at a purely regulatory level, 731 00:43:21,920 --> 00:43:23,920 Speaker 1: you know, just to sort of go to court and say, 732 00:43:24,200 --> 00:43:26,320 Speaker 1: here's the Clean Air Act. We're going to sue EPA 733 00:43:26,480 --> 00:43:29,239 Speaker 1: for not issuing stricter regulations on this, or if the 734 00:43:29,280 --> 00:43:31,320 Speaker 1: regulations come out and the industry challenges them, to be 735 00:43:31,360 --> 00:43:34,759 Speaker 1: in there to say, hey, wait, these regulations are fine. 736 00:43:34,840 --> 00:43:39,960 Speaker 1: And I do agree that with a highly deregulatory and 737 00:43:40,480 --> 00:43:44,799 Speaker 1: skeptical of agencies Supreme Court, that kind of litigation is 738 00:43:45,160 --> 00:43:47,320 Speaker 1: is going to be harder, and that we're going to 739 00:43:47,400 --> 00:43:49,280 Speaker 1: have to be more thoughtful and cautious in the cases 740 00:43:49,320 --> 00:43:52,279 Speaker 1: that we bring and more aggressive in our defense of 741 00:43:53,120 --> 00:43:55,200 Speaker 1: regulations that around the books and statutes that are on 742 00:43:55,280 --> 00:43:59,200 Speaker 1: the books. On the other hand, you know, the Climate 743 00:43:59,360 --> 00:44:03,279 Speaker 1: Justice and environ Mental justice movements are deeply dovetailed with 744 00:44:04,320 --> 00:44:08,399 Speaker 1: the need for getting systematic change in the way we 745 00:44:08,480 --> 00:44:12,480 Speaker 1: regulate pollution and climate, and a lot of those cases 746 00:44:12,560 --> 00:44:18,080 Speaker 1: are very much local, fact intensive and specific cases about 747 00:44:18,160 --> 00:44:22,680 Speaker 1: specific harms and specific violations of law that are part 748 00:44:22,719 --> 00:44:26,440 Speaker 1: and parcel of a movement for broader change. And those 749 00:44:26,520 --> 00:44:29,879 Speaker 1: kinds of cases brought on behalf of communities where you're 750 00:44:29,920 --> 00:44:33,600 Speaker 1: going into court saying this isn't about some abstract principle 751 00:44:33,719 --> 00:44:36,439 Speaker 1: that's way over there in Washington, DC. This is about 752 00:44:36,480 --> 00:44:41,800 Speaker 1: real people and a pipeline or a mine, or pollution 753 00:44:42,160 --> 00:44:45,680 Speaker 1: that's affecting real lives, whether it's lead in the water 754 00:44:46,440 --> 00:44:49,120 Speaker 1: or a smog in the air. Those cases are going 755 00:44:49,160 --> 00:44:53,200 Speaker 1: to be really important in the years to come, and 756 00:44:53,239 --> 00:44:56,759 Speaker 1: those are cases where what matters is the facts you bring, 757 00:44:57,440 --> 00:45:03,080 Speaker 1: the partners you bring, the the industries that you're you're 758 00:45:03,080 --> 00:45:05,640 Speaker 1: dealing with. Those I think those cases are very live 759 00:45:05,760 --> 00:45:09,000 Speaker 1: and I don't see any way in which those cases 760 00:45:09,080 --> 00:45:13,360 Speaker 1: are going to be, you know, like fundamentally harder, harder 761 00:45:13,400 --> 00:45:15,520 Speaker 1: to bring. You know, there's there's things like standing and 762 00:45:15,560 --> 00:45:18,080 Speaker 1: others that that the that the that the right wing 763 00:45:18,120 --> 00:45:20,960 Speaker 1: courts are trying to these little doctrines that the Court 764 00:45:21,000 --> 00:45:22,520 Speaker 1: is trying to chip away in the side, but I 765 00:45:22,600 --> 00:45:24,920 Speaker 1: fundamentally believe that those cases are going to be both 766 00:45:25,040 --> 00:45:28,080 Speaker 1: increasingly important and that they're going to be continued to 767 00:45:28,120 --> 00:45:30,640 Speaker 1: be very viable and very very powerful. 768 00:45:39,080 --> 00:45:44,520 Speaker 2: Thrilled and Damages are original Critical Frequency productions. This episode 769 00:45:44,600 --> 00:45:47,960 Speaker 2: was reported by me Amy Westervelt and mixed and mastered 770 00:45:48,040 --> 00:45:53,000 Speaker 2: by Bennett Smith. Original music is by Peter duff Our. 771 00:45:53,160 --> 00:45:58,160 Speaker 2: Artwork is done by Matthew Fleming. For ongoing information about 772 00:45:58,200 --> 00:46:01,719 Speaker 2: climate litigation and all sorts of other things, check out 773 00:46:01,719 --> 00:46:05,400 Speaker 2: our website at Drill podcast dot com. You can also 774 00:46:05,440 --> 00:46:09,640 Speaker 2: follow us at We Are Drilled. That's it for this time, 775 00:46:09,840 --> 00:46:21,120 Speaker 2: Thanks for listening, and we'll see you next week.