Speaker 1: Hello.
Speaker 2: I'm Amy Westervelt and this is a special crossover episode
Speaker 2: of Drilled and Damages. Today I am joined by Sam Sinkar,
Speaker 2: Senior Vice President of Earth Justice, and Kirti dad La,
Speaker 2: director of Strategic Legal Advocacy for Earth Justice, to talk
Speaker 2: a little bit more about what exactly the West Virginia
Speaker 2: versus EPA decision meant and to look ahead at some
Speaker 2: of the big cases for climate folks to be watching
Speaker 2: in the next Supreme Court session coming up this fall.
Speaker 2: There's a lot to get into here, from the continued
Speaker 2: attempt to dismantle the quote unquote administrative State, to the
Speaker 2: way that the Clean Water Act is being targeted in
Speaker 2: a case coming up next session, to how litigation remains
Speaker 2: a very important tool even with the Supreme Court on fire.
Speaker 2: We're going to get into all of that and more
Speaker 2: coming up after this quick break.
Speaker 1: My name is Sam Sankar. I'm the senior vice president
Speaker 1: of Programs ED, which means I lead to our lobbying
Speaker 1: and litigation efforts.
Speaker 3: I'm Karite Doatla, and I'm the director at Strategic Legal
Speaker 3: Advocacy or Justice, which in a nutshell means I kind
Speaker 3: of keep track of the goings on in the federal courts,
Speaker 3: especially the Supreme Court, on issues that kind of crop
Speaker 3: up across all of our cases.
Speaker 2: Okay, so I know that it's been a while since
Speaker 2: the West Virginia versus EPA decision came down with a
Speaker 2: couple of months you know, pasted it. What do you
Speaker 2: think the implications of that decision are or will be?
Speaker 4: Yeah, totally.
Speaker 3: So, you know, I think your listeners are already pretty
Speaker 3: well versed in this case. But just as a reminder,
Speaker 3: you know, the case is ostensibly about this Obama era
Speaker 3: regulation called the Clean Power Plant that addressed embissions from
Speaker 3: fossil fuel fired power plants. But that regulation was sort
Speaker 3: of a zombie regulation that had, because of the Supreme
Speaker 3: Court issuing a stay, never got into effect, and that
Speaker 3: was sort of kind of practically dead for all purposes.
Speaker 4: And the Supreme Court.
Speaker 3: Took a case that was about whether or not that
Speaker 3: that zombie regulation was valid, largely to address something called
Speaker 3: the major Questions doctrine, which had sort of been cobbled
Speaker 3: together out of a couple of sentences here and there
Speaker 3: in the Supreme Court's past cases by folks like West
Speaker 3: Virginia and the Group of States that it was leading
Speaker 3: in this case and the industry groups that were on
Speaker 3: their side, and as they put it to the court,
Speaker 3: you know, the idea is that if an a federal
Speaker 3: agency is going to address something that has big economic
Speaker 3: and political consequences, it needs to be able to identify
Speaker 3: something really clear in the statute that gives it the
Speaker 3: authority to do basically exactly what it tried to do.
Speaker 3: And you know, it's sort of obvious just from describing
Speaker 3: the doctor that they pitched to the court that it
Speaker 3: is inherently deregulatory. You know, it only applies when the
Speaker 3: government wants to do something, and the kind of tests
Speaker 3: that it asks agencies to overcome is one that will
Speaker 3: be hard, if not impossible, to overcome in most cases. So,
Speaker 3: you know, they took the case to the court. The
Speaker 3: court accepted the case, and at the end of its term,
Speaker 3: in the last day of its term, actually issued a
Speaker 3: decision in the case that it kind of accepts the
Speaker 3: general premise of what West Virginia and those on its
Speaker 3: side I'd asked the court to do, but doesn't go
Speaker 3: all the way somewhat thankfully, So the court kind of
Speaker 3: accepts the idea that the major questions doctrine exists. It
Speaker 3: you know, describes it using that name for the first time,
Speaker 3: and it says that in certain you know, unusual cases,
Speaker 3: in certain extraordinary cases, it's going to apply this this
Speaker 3: sort of common sense and also constitutionally based assumption that
Speaker 3: Congress didn't mean to give agencies, you know, broad authority
Speaker 3: to do things like reshape the market or you know,
Speaker 3: impose a really significant regulation. So I say it did
Speaker 3: kind of go all the way because it it does,
Speaker 3: you know, have that limiting language there. Does the Court
Speaker 3: does say, you know, it's not supposed to apply in
Speaker 3: every case, But the decision is also pretty mushy in
Speaker 3: terms of saying what it does apply and the factors
Speaker 3: that it's going to consider. So it's a little hard
Speaker 3: to say what the effect of the decision will be
Speaker 3: because we don't have a lower court decision applying it yet.
Speaker 3: But you know, I think it's safe to say that
Speaker 3: the reason this doctrine was kind of invented and created
Speaker 3: and taken to the Supreme Court was because it's deregulatory.
Speaker 3: It was kind of another tool in the toolbox of
Speaker 3: people who don't like federal regulations. And we know from
Speaker 3: what has happened, you know, in the run up to
Speaker 3: the decision and after it that that's exactly how it's
Speaker 3: being used. So we know that people have kind of
Speaker 3: been making noises, either in their comments to agencies or
Speaker 3: in briefs before federal courts or press statements that they
Speaker 3: think that, you know, a whole host of federal regulations
Speaker 3: should be challenged on this basis, and that ranges from
Speaker 3: things like the Department of Transportations fuel efficiency standards for vehicles,
Speaker 3: the new rule that the SEC is working on related
Speaker 3: to climate disclosures, things going all the way down to
Speaker 3: things that seems pretty odd, major like the PA's rules
Speaker 3: regarding overcoming tampering preventing tampering of cars to get around
Speaker 3: promission standards.
Speaker 4: And then don't have nothing to do with the environment.
Speaker 3: Things like the DACA program, so that's an immigration related law.
Speaker 3: There's childes to viasive programs related to the Major Questions doctrine.
Speaker 4: You know, it's a like I said, it's.
Speaker 3: A tool in the toolbox of people that don't like regulations.
Speaker 3: And those people see, you know, see everything as a
Speaker 3: nail and are taking out.
Speaker 4: This hammer and banging on it. And you know, I
Speaker 4: don't mean.
Speaker 3: To say, I just want to be clear, like the
Speaker 3: fact that people are raising this argument all the time
Speaker 3: doesn't mean it's a good argument. It doesn't mean it's
Speaker 3: going to win, but it does mean that the doctorate
Speaker 3: is serving exactly the purpose it was created to serve,
Speaker 3: right right.
Speaker 2: I'm curious about how all of that fits in with
Speaker 2: the context of the Inflation Reduction Act too. First, I'd
Speaker 2: love to sort of hear from from both of your
Speaker 2: thoughts on gaps in that legislation and where litigation might
Speaker 2: play a role in addressing some of the concerns that
Speaker 2: people have about it. But then I also wonder how
Speaker 2: people are thinking about litigation given what's happening at the
Speaker 2: Supreme Court right now. Kind of kind of broadly.
Speaker 1: Sure, well, why don't I take the first part of
Speaker 1: that question, the you know, the first part of what
Speaker 1: does the IRA do and what's the role of litigation
Speaker 1: in the IRA? And you know, I'll like here to
Speaker 1: talk a little bit more about the impact of just
Speaker 1: the general impact of this Supreme Court on litigation in
Speaker 1: service of environmental and public interests. The IRA is first
Speaker 1: and foremost as a spending bill, So one of the
Speaker 1: the things about it is that it's basically giving money
Speaker 1: to a whole lot of different sectors, including the clean
Speaker 1: energy sector and the oil and gas sector, in the
Speaker 1: form of various tax credits and other direct spending. And
Speaker 1: that kind of policy work is not the sort of
Speaker 1: thing that the Supreme Court is going to have a
Speaker 1: lot to do with or the federal courts in general,
Speaker 1: because it's spending. This isn't regulation, And politically speaking, that's
Speaker 1: actually been the secret to making progress legislatively on climate
Speaker 1: is to say, like, let's spend our way out of
Speaker 1: this problem, let's invest in a clean energy economy. And
Speaker 1: the deal, of course, was that this had to go
Speaker 1: along with a lot of oil and gas and problematic
Speaker 1: spending as well, including in technologies like carbon capture and
Speaker 1: sequestration and blue hydrogen which are at best unproven, at
Speaker 1: worst really just you know, the same old stuff in disguise.
Speaker 1: So on the IRA, some of the problematic elements have
Speaker 1: basically been the parts that are going to make it
Speaker 1: easier and cheaper to expand fossil fuel infrastructure across a
Speaker 1: lot of places in the country that already have a
Speaker 1: lot of that infrastructure, and that as a result involve
Speaker 1: a lot of pollution burdens on the people who live there,
Speaker 1: and so ironically, a lot of those communities are the
Speaker 1: foundation of a movement for climate justice that is very
Speaker 1: much part of the political support for this legislation and
Speaker 1: for President Biden's overall success in the last presidential elections.
Speaker 1: So it's ironic that they're going to in many respects
Speaker 1: see the raw side of this deal. So what role
Speaker 1: does litigation play? Well, nothing in the Inflation Reduction Act,
Speaker 1: Nothing in there limits the role of traditional environmental laws.
Speaker 1: And that means that all of that infrastructure, oil and
Speaker 1: gas and problematic pollution generating infrastructure is going to be
Speaker 1: subject to those laws. And so litigation is going to
Speaker 1: have a substantial role in making sure that any development
Speaker 1: that's supported under this act is going to be is
Speaker 1: going to have to pass through the gauntlet of those laws.
Speaker 1: And organizations like Earth Justice are very much going to
Speaker 1: be helping those communities fight back to make sure that
Speaker 1: the future that they get out of this bill is
Speaker 1: the future that they want. Anyway, we could go into
Speaker 1: that a little bit more, but i'll like Koti talk
Speaker 1: about the Court.
Speaker 4: Yeah, I mean as to the Supreme Court.
Speaker 3: I'll just you know, it's not like the Supreme Court
Speaker 3: has ever been like super environmentally friendly, so.
Speaker 2: The Climate Court, I'm just kidding, yeah, exactly.
Speaker 3: So you know, I think it's important to just like
Speaker 3: set the baseline in the right place. But that said,
Speaker 3: you know, obviously this is a different court. This is
Speaker 3: a more conservative court of courts that's more skeptical of
Speaker 3: a federal authority and a federal agency authority in particular.
Speaker 3: But that doesn't mean that like everybody should pack it
Speaker 3: up and go home. It just means that, you know,
Speaker 3: as with any challenge in litigation, you have to be
Speaker 3: forward thinking and you know, and kind of smart about
Speaker 3: how you approach litigation and think about where the risk
Speaker 3: is and think about where you can make progress despite
Speaker 3: that risk. And as Sam I think kind of previewed,
Speaker 3: you know, there's lots of sort of bread and butter
Speaker 3: environmental litigation that just isn't going to make its way
Speaker 3: up to the Supreme Court because it doesn't implicate the
Speaker 3: kind of big picture issues or principles that the Supreme
Speaker 3: Court is concerned about, and that those.
Speaker 4: Are things like you know, when a.
Speaker 3: Facility gets built, it has to you know, get certain
Speaker 3: permits and then those permits need to be enforced in
Speaker 3: our federal environs, going to laws allow citizens people who
Speaker 3: live you know, across the fence line from these really
Speaker 3: polluting facilities too, to help enforce those permitting conditions, right.
Speaker 3: And so those are the kinds of suits where it's
Speaker 3: it's just about a specific permit and whether or not
Speaker 3: it's being complied with. It's not about some big question
Speaker 3: of federal power.
Speaker 4: Right.
Speaker 3: So, you know, those are the kinds of things where
Speaker 3: if you hold people to their legal obligations, you can
Speaker 3: you know, have an effect in these in these frontline communities,
Speaker 3: on these facilities that you know, unfortunately and you know wrongly,
Speaker 3: are are disproportionately burdening these these people. But that's the
Speaker 3: kind of litigation that's not gonna you know, that doesn't
Speaker 3: really happen in the shadow of the Suprene Court. And
Speaker 3: even in figure cases. You know, we at our Justice
Speaker 3: had a pretty important Clean Water Act case a couple
Speaker 3: of years ago that our litigators what for the Supreme Court.
Speaker 3: And you know, it was the five four version, not
Speaker 3: the sixt three version. But even so, you know, we
Speaker 3: still won that case and would have won it under
Speaker 3: this court. So and that's just a matter of being,
Speaker 3: you know, understanding how this Court looks at statutes, understanding
Speaker 3: the perspective of the Supreme Court, and speaking in the
Speaker 3: language they want to be spoken to. Right, So that's
Speaker 3: just litigating well, and you can still win cases that way.
Speaker 3: So you know, I don't mean to be like rosy
Speaker 3: eyed about everything, but I think there's a certain degree
Speaker 3: of just like, really good glorying will still win cases,
Speaker 3: and really strategic glorying can still make a big difference.
Speaker 2: I'm curious what you both think about some of some
Speaker 2: of the quote unquote side deal that the aspects of
Speaker 2: that related to the IRA, especially in terms of you know,
Speaker 2: permitting and NEPA and the ways that what at least
Speaker 2: has been kind of reported on so far seems to
Speaker 2: be getting around some of our kind of you know,
Speaker 2: environmental laws in favor of permitting things like pipeline. And
Speaker 2: I want to ask you specifically about the Mountain Valley
Speaker 2: pipeline in a minute too, but in general, yeah, I
Speaker 2: guess how is Earth Justice approaching that that conversation and
Speaker 2: what are the things that you're kind of hoping to
Speaker 2: not see in the final version of that.
Speaker 1: Well, you know, this is Friday, August twelfth. It's a
Speaker 1: big day for passing the overall IRA. So you know,
Speaker 1: first and foremost, we're looking forward to passage of the
Speaker 1: bill and we're looking forward to President Biden signing it.
Speaker 1: It's worth noting that, you know, the draft of this
Speaker 1: side deal that we have, which is kind of freakishly
Speaker 1: watermarked as API draft, is from several weeks ago, and
Speaker 1: there's been no indication from Senator Schumer or Senator Mansion's
Speaker 1: office they haven't. We haven't seen a more recent version
Speaker 1: of this side deal. In fact, the version that we
Speaker 1: have seen doesn't even include what it. What we gather
Speaker 1: are some specific deals about the the m v P
Speaker 1: the amount of value pipeline. So so a lot of
Speaker 1: what I'll say here is based on something that may
Speaker 1: not be the current deal. I mean that said that,
Speaker 1: the version that we saw from a few weeks ago
Speaker 1: includes a couple of major provisions that are problematic on
Speaker 1: their own. One is a series of provisions that are
Speaker 1: designed to uh in quotes, streamline the permitting process, and
Speaker 1: what that functionally means is making it harder to well
Speaker 1: making making it easier for agencies to do NEPA analyzes
Speaker 1: by by making those analyzes less thorough or allowing them
Speaker 1: to do less thorough analyzes, and then by making it
Speaker 1: harder for people to comment and seek judicial review on
Speaker 1: those analyzes. You know, for example, the statute of limitations
Speaker 1: for NEPA challenges in most cases of six years, and
Speaker 1: under this, under the draft that we've seen, it would
Speaker 1: be five months in some cases, And that may seem like, well,
Speaker 1: that geez, that five months you should you should be
Speaker 1: able to know if there's a problem with the project,
Speaker 1: But in fact, many of these projects get approved long
Speaker 1: before anyone in a community has any idea that that
Speaker 1: something is up. And so given the way that we
Speaker 1: notify communities about what's going on, five months is often
Speaker 1: a laughably short period of time for them to be
Speaker 1: able to respond in court. There's also a bunch of
Speaker 1: other provisions that essentially require the president to prioritize oil
Speaker 1: and gas large oil and gas development for special attention
Speaker 1: through the permitting process and anyway. And there's also some
Speaker 1: things that affect the Clean Water Act. There's some things
Speaker 1: that that are generally pro electricity infrastructure, but also contains
Speaker 1: some problematic visions. So there's a lot of stuff in there.
Speaker 1: We don't really know what the final deal is going
Speaker 1: to be, but we also know that, unlike the IRA,
Speaker 1: there's going to be a real legislative conversation about this.
Speaker 1: We know that, you know, the House hasn't already hasn't
Speaker 1: passed this. This may be a deal among a couple
Speaker 1: of senators, but that doesn't mean that the House of
Speaker 1: Representative is going to do it. And you know, as
Speaker 1: we hope the IRA is going to be passed and
Speaker 1: this side deal is going to have to pass independently,
Speaker 1: I'll let Kurtate talk a little bit about what the
Speaker 1: rumors of what we've heard about this Mountain Valley pipeline,
Speaker 1: and you know, the side deal also includes this slightly
Speaker 1: odd judicial review provision as well.
Speaker 2: Yeah, Kret, can you talk a little bit about the
Speaker 2: Mountain Valley pipeline and also, like related to that, the
Speaker 2: the way that at least what we've seen and what's
Speaker 2: been you know, kind of shared with the press, the
Speaker 2: way that it would dictate jurisdiction seems really troubling, I think. So, Yeah,
Speaker 2: I'd love to hear you your take on that.
Speaker 3: Yeah, So, as Sam kind of previewed for when it
Speaker 3: comes to Mount Value of Pipeline. We don't even have
Speaker 3: you know, the draft text of the provision. We have
Speaker 3: kind of a rumor that Mount Valley Pipeline and its
Speaker 3: backers want and have I guess secured language that would
Speaker 3: take cases out of the Fourth Circuit, which is where
Speaker 3: they're filed under the default you know, like federal statutes
Speaker 3: and I think potentially put them into the d C Circuit.
Speaker 3: And the reason Mount Value Pipeline wants this.
Speaker 4: Is because.
Speaker 3: Basically, the way that courts of appeals work is, you know,
Speaker 3: most of them have a rule that says, you know,
Speaker 3: when one panel which is three judges, gets assigned to
Speaker 3: a case, if a later case comes up that you know,
Speaker 3: involves the same project or it's you know, a set
Speaker 3: of issues or similar record, you know, it's just more
Speaker 3: efficient to asside those to the same panel because like
Speaker 3: they're already familiar with it. And so Mount Value Pipeline's
Speaker 3: first case got assigned to a panel in the Fourth
Speaker 3: Circuit and most of the later cases related to that
Speaker 3: pipeline have also been assigned to the same panel, and
Speaker 3: Mount Value Pipelines upset that it has lost some of
Speaker 3: these cases and already complaint to the Fourth Circuit itself,
Speaker 3: so you know in some of the decisions that it's lost,
Speaker 3: and I should be clear it hasn't lost all of
Speaker 3: these decisions. When when Mount Value Pipeline is making this claim,
Speaker 3: it excludes from the baseline of the number of decisions
Speaker 3: that it's talking about a bunch of decisions related to condemnation,
Speaker 3: which is its authority to take land for the pipeline.
Speaker 4: Almost all of.
Speaker 3: The same group of judges has upheld so like allowing
Speaker 3: them to take private property and their federal statutes to
Speaker 3: build their pipeline, So it kicks those out of the
Speaker 3: denominator to make the numbers look less favorable to it.
Speaker 3: And then it says, you know, we're losing more of
Speaker 3: these cases than we think we should under like the
Speaker 3: law of averages, I guess, and it's already complained to
Speaker 3: the Fourth Circuit in its petitions. You know, when it
Speaker 3: loses a case, it's petitioned for rehearing on bog which
Speaker 3: just means it's asked full Fourth Circuit to consider these decisions.
Speaker 3: And it's kind of jabbed at the panel in those filings,
Speaker 3: and the Fourth Circuit has been full Fourth Circuit, so
Speaker 3: including other judges right, hasn't.
Speaker 4: Taken the bait.
Speaker 3: It hasn't thought that there was you know, worthwhile merit
Speaker 3: to those claims. And it actually moved to basically disqualified
Speaker 3: the panel recently and asked the Fourth Circuit to assign
Speaker 3: these cases to a different panel, and the Fourth Circuit
Speaker 3: said no. And you know, just to be clear, it's
Speaker 3: not like losing all these cases at all. If you
Speaker 3: read these decisions, you know the panel will accept some
Speaker 3: of the claims, it will reject some of the claims.
Speaker 3: They're like thoroughly recent decisions. It's not like they're like
Speaker 3: knee jerk anti pipeline decisions. They're just holding the federal agencies,
Speaker 3: which you know, have obligations under federal statutes.
Speaker 4: They're burdens.
Speaker 3: And so I guess, having you know, failed to make
Speaker 3: an argument that would win in court, now Value Pipeline
Speaker 3: is now gotten its backers to take these cases away.
Speaker 4: From the Fourth Circuit and put them in the DC Circuit.
Speaker 3: And I have to say, you know, reading these decisions,
Speaker 3: I didn't work out these cases. So all I've got
Speaker 3: is read some of the opinions, but they don't strike
Speaker 3: me as the kind of opinions that would come out
Speaker 3: differently if you put them in front of a different
Speaker 3: set of judges, and that's like psychoanalyzed judges. But I
Speaker 3: can't imagine that the DC Circuit is going to be
Speaker 3: you know, that pleased that you know, this pipeline company
Speaker 3: thinks that, like, you know, they've they looked around the
Speaker 3: country and wanted to pick their judges and decided on.
Speaker 4: The d C Circuit.
Speaker 3: You know, I don't think federal judges in general like
Speaker 3: the idea of judge shopping in that way or implying that,
Speaker 3: you know, the Fourth Circuit is biased. Those are their
Speaker 3: colleagues too, So I'm not really sure it's going to
Speaker 3: work out.
Speaker 4: Any better for them at the end.
Speaker 3: But you know, just am your question kind of hinted
Speaker 3: at it that it just as a bottom line matter,
Speaker 3: it's sort of distressing that that a really powerful industry
Speaker 3: group can pick its judges in its cases. Yeah, in
Speaker 3: order to kind of jerrymander the outcomes that at once
Speaker 3: that that just on its face looks really.
Speaker 2: Bad, seems like a bad precedent to set.
Speaker 1: Yeah, at the same time, it's ironic that that the
Speaker 1: they want to be in the d C circuit because
Speaker 1: you know the d C Circuit is not the Fifth Circuit.
Speaker 1: In fact, as as environmental lawyers, I you know, that's
Speaker 1: not a bad place for us. It tends to be
Speaker 1: a highly technocratic and very you know. It's back when
Speaker 1: I was an active litigator, that was my favorite court
Speaker 1: to litigate in because they dug in and they would
Speaker 1: really get to know the details of the arguments. And
Speaker 1: if I'm not at all sure that if I were
Speaker 1: an industry that that's where I go. Now, certainly, if
Speaker 1: they had said we want to go to the Fifth Circuit,
Speaker 1: I would have number one said, well, I can understand why,
Speaker 1: and number two I would have been all the more
Speaker 1: distressed that that they really were just, you know, forum
Speaker 1: shopping in the most naked way. But you know, so
Speaker 1: anyway that I share Curty's concern that that we're moving
Speaker 1: specific cases around, I do think it's sort of funny
Speaker 1: that they may be out of the frying pan and
Speaker 1: into the fire.
Speaker 2: Yeah, it'll depend on the.
Speaker 1: Panel draw they get in the DC Circuit.
Speaker 2: Yeah, yeah, I know. I thought that was weird too.
Speaker 2: It was like, I don't it's not like that's a
Speaker 2: slim dunk for them. Okay, So looking ahead, at the
Speaker 2: next session of the Supreme Court. Obviously, West Virginia versus
Speaker 2: EPA is not the only you know, environment or climate
Speaker 2: related case that they have taken up. What should we
Speaker 2: be looking out for? What's coming up next? I know, Sam,
Speaker 2: you kind of wrote about this recently.
Speaker 1: Yeah, Well, the blockbuster case of next rum or at
Speaker 1: least so far the likely blockbuster is is the Sacket case,
Speaker 1: which involves the Clean Water Act. And you know, the
Speaker 1: Sackets have been serial litigators on this issue and have
Speaker 1: been to the Supreme Court before, where they won nine
Speaker 1: to zero on a fairly straightforward question about whether or
Speaker 1: not they had a right to be in court at
Speaker 1: all on this They're a couple whose claim is based
Speaker 1: on their desire to get a permit to do some
Speaker 1: development and their belief that they shouldn't even have to
Speaker 1: get a permit. To be clear, if they had applied,
Speaker 1: they almost certainly would have gotten a permit, but they
Speaker 1: don't even feel like they should have to get one.
Speaker 1: And the permit is to is to fill in some
Speaker 1: wetlands on their property. And the real underlying question is
Speaker 1: what does the Clean Water Act protect? And everybody understands
Speaker 1: that the Clean Water Act protects lakes and rivers and
Speaker 1: the ocean, you know, big rivers and the ocean. But
Speaker 1: the fight for some time from the right has been
Speaker 1: to constrict the applicability of the Clean Water Act to
Speaker 1: smaller streams and to wetlands. And of course any scientists
Speaker 1: would tell you that there's no way to protect the
Speaker 1: water quality and downstream rivers and lakes in those bodies
Speaker 1: that nobody nobody contends aren't protected by the Clean Water Act.
Speaker 1: But if you want to protect those water bodies, you
Speaker 1: need to protect the upper parts of the watershed, which
Speaker 1: often involves smaller rivers, uh and streams, and then the
Speaker 1: wetlands that that feed them. So the there's a lot
Speaker 1: of industries that would like to be able to fill
Speaker 1: in wetlands and uh and and frankly pollute areas that
Speaker 1: that currently the Clean Water Act protects. And by arguing
Speaker 1: that the Clean Water Act doesn't protect those things, they're
Speaker 1: essentially an accomplished deregulation. So they're not changing the protections
Speaker 1: of the Clean Water Act, they're changing where they apply. Now,
Speaker 1: the Court has been very interested in this issue for
Speaker 1: a while, and back when Justice Scalia was around, he
Speaker 1: wrote an important opinion that only that only attracted three
Speaker 1: other boats. It was it was only an opinion of
Speaker 1: four justices and therefore wasn't controlling. But it suggested a
Speaker 1: much more constricted understanding of what the Clean Water Act protects.
Speaker 1: And we know that that I you know, I think
Speaker 1: everybody is pred thing that this Court will will try
Speaker 1: to put Justice Scalia's test in charge, which would again
Speaker 1: be a much more restricted understanding of what the Clean
Speaker 1: Water Act protects. That's that's the blockbuster. But there there
Speaker 1: are some other, maybe less less appreciated cases that will
Speaker 1: have a lot to do with environmental law. I mean,
Speaker 1: it's not always environmental law cases that in fact that
Speaker 1: that effect what environmental law does, because administrative law, the
Speaker 1: law of regulations is props up and lots of lots
Speaker 1: of context, not just the environment right right.
Speaker 2: Well, well, I have one follow up on the SACA case.
Speaker 2: Do you have any sense of kind of where that
Speaker 2: case came from in terms of you know, are I mean,
Speaker 2: I'm I'm curious if it's like, is it a RAGA case?
Speaker 2: Is it like how coordinated is well?
Speaker 1: I mean, you know, it's you know, let's put it
Speaker 1: this way. If it is awfully convenient for the many
Speaker 1: organizations that are supporting the Sackets, that the Sackets themselves
Speaker 1: or are a sort of you know, libertarian face of this.
Speaker 1: This with just you know this, this purple you know,
Speaker 1: this couple that you know seems like just a mom
Speaker 1: and pop trying to get something done. But it's it
Speaker 1: should come as no surprise that organizations like the American
Speaker 1: Petroleum Institute are happy to file major amicus briefs and
Speaker 1: the Sackets are being represented by by folks who are
Speaker 1: movement and agenda lawyers. So this is this may not
Speaker 1: have been you know, I'm not sure anybody called them
Speaker 1: up and say, hey, you should try to build something
Speaker 1: and then we'll make a case out of it. But
Speaker 1: certainly when their case popped up, it attracted a lot
Speaker 1: of attention and a lot of support because it was
Speaker 1: a it was a vehicle that a lot of not
Speaker 1: mom and pop operations were interested in seeing succeed.
Speaker 2: Right right, Who's who's representing them.
Speaker 4: It's the Pacific Legal Foundation.
Speaker 2: Oh okay, I mean they're not this is not.
Speaker 1: Look We're we're an organization with a point of view,
Speaker 1: and I'm sure that there are people at the Pacific
Speaker 1: Legal Foundation who would say, oh, well, Earth Justice is
Speaker 1: representing them. The difference is we don't have a whole
Speaker 1: lot of industries who are also feeding us money in
Speaker 1: order to do that. You know, we're we're we are
Speaker 1: not on the side of industry and were don't you know,
Speaker 1: we don't have the American Petroleum Institute filing next to us,
Speaker 1: right right, Yeah.
Speaker 3: And I'll just you know, just to inject a bit
Speaker 3: of you know, I think Sam's laid out just how
Speaker 3: important the Clean Water Act is and how important a
Speaker 3: decision that restricts its scope and what it is capable
Speaker 3: of protecting is to you know, like reel people on the.
Speaker 4: Ground, many of whom are our clients.
Speaker 3: But it's probably also worth like just noting that these
Speaker 3: briefs that Sam mentioned, you know, from people like the
Speaker 3: API Staper Commerce, Americans for Prosperity, you know, a group
Speaker 3: of Red states again led by West Virginia.
Speaker 4: You know these briefs, aren't you know?
Speaker 3: There's something similar to what was happening in West Virginia
Speaker 3: versus EPA going on in these cases. They're not just
Speaker 3: about the Clean Water Act. They're also kind of trying
Speaker 3: to seed these anti regulatory principles in the same way
Speaker 3: as they succeeded in West Virginia. They're asking, you know,
Speaker 3: they're telling the court like things like, you know, well,
Speaker 3: the Clean Water Act is you know, addresses like public
Speaker 3: health and safety, and that's traditionally an area of the
Speaker 3: state's control, not the federal government's control. So there's it's
Speaker 3: got to be really clear when there's a federal statue
Speaker 3: that invades that traditional state authority. You know, all these
Speaker 3: kind of clear statement rules is what they're called in
Speaker 3: the law, that basically act as like thoughts on the
Speaker 3: scale against federal power or agency power or this is
Speaker 3: like two of trying to develop additional tools that can
Speaker 3: be used in later cases and later challenges. So it's
Speaker 3: not just it's about the Clean Water Act. All these
Speaker 3: groups have a very obvious interest in avoiding the application
Speaker 3: of the Queen Water Act, right, but it's also that
Speaker 3: they see this as another opportunity before this court to
Speaker 3: kind of establish broader legal principles that they can then
Speaker 3: use going forward.
Speaker 1: You Know, one thing you notice is Kitty and I
Speaker 1: both both worked at the Supreme Court at very different times,
Speaker 1: and when I was there, the swing boat was Justice O'Connor,
Speaker 1: who I worked for, or in some cases Justice Kennedy
Speaker 1: and each Back then, people didn't push these big legal principles.
Speaker 1: They didn't really you know, in some cases they would
Speaker 1: talk about deregulatory ideas or returning power to the states
Speaker 1: to appeal to Justice Kennedy, but in general, people were
Speaker 1: kind of swinging for singles. They were trying to win
Speaker 1: small and individual cases and build big And what you're
Speaker 1: seeing in cases like Sacket is I think the other
Speaker 1: side on these things is assuming that they're going to
Speaker 1: win the narrow case, they're pretty sure they're going to
Speaker 1: win the Sacket's case, and they're swinging for the fences
Speaker 1: to get broader principles. So in the West Virginia versus
Speaker 1: EPA case, all of us on the outside were saying,
Speaker 1: why would they have taken this case about a regulation
Speaker 1: that doesn't even exist if they were going to say
Speaker 1: that the regulation was fine. So we strongly suspect that
Speaker 1: they're going to try to strike this regulation down. So
Speaker 1: the fight is really about how far do they hit
Speaker 1: that ball into the outfield and do they get a
Speaker 1: home run? So what you see in the briefs on
Speaker 1: the right is just egging the court's conservatives on to
Speaker 1: say as much as possible through the vehicle of the case.
Speaker 2: Yeah, yeah, okay, And then you mentioned some other cases
Speaker 2: that could have a big impact on environmental issues in general,
Speaker 2: but are not as necessarily explicitly environmental cases. Could you
Speaker 2: expand on that, which which cases are you kind of
Speaker 2: keeping an eye on in that regard.
Speaker 3: Yeah, There's there's one case called Ross and it's a
Speaker 3: it's actually a constitutional case, it's not an administrative law case,
Speaker 3: and it's about the what's called the dormant Commerce claus
Speaker 3: which is like a law speak for like an unrid
Speaker 3: principle that is derived from the Commerce Clause of the
Speaker 3: Federal Constitution. But basically, this is a case about a
Speaker 3: balve initiative that was passed in California. It's called Proposition twelve,
Speaker 3: and it's a law that prohibits people from selling pork
Speaker 3: in California that is derived from an animal that was
Speaker 3: confined in a cruel manner, which is, you know, to
Speaker 3: find just things like you know, preventing animals from being
Speaker 3: all lie down or turn around or being in a
Speaker 3: space that's too small. And we're pretty users have challenged
Speaker 3: this law at violating what's known as the Dormant Commerce Clause.
Speaker 4: And you know the basic ideas that the.
Speaker 3: Federal Constitution gives Congress the authority to regulate interstate commerce,
Speaker 3: so commerce between states, and so the kind of back
Speaker 3: like principle that the dormant converse clause enforces is the
Speaker 3: idea that, like, if that's Congress's power, then states can't
Speaker 3: do that. And so when states try and do that,
Speaker 3: that violates the so called dormant Commerce Clause. And there's
Speaker 3: like different ways that the Supreme Courts cases describe how
Speaker 3: this principle can be violated. One it is like when
Speaker 3: a state sort of literally writes a law that says
Speaker 3: like you know, if it's if it's Texas, and they
Speaker 3: write a lot it says like Louisiana products can't be
Speaker 3: sold here.
Speaker 4: Or something like that.
Speaker 3: Right, So one is where it's like obviously discriminating against
Speaker 3: against it our state commerce. Another one is this kind
Speaker 3: of mushier balancing test where if a state passes the
Speaker 3: law that burdens interstate commerce, that the courts can kind
Speaker 3: of balance whether or not that like benefits that the
Speaker 3: state is offering and support of that law outweigh the
Speaker 3: burdens on interstate commerce. And the last one, which is
Speaker 3: kind of the most important for the discussion we're having,
Speaker 3: is this principle called the extra territoriality principle, which is
Speaker 3: the idea that if they're even if a law is
Speaker 3: like written to address in state activity, if it has
Speaker 3: effects outside of the state that can raise concerns that
Speaker 3: would require the application of a constitutional test. And you know,
Speaker 3: obviously this case is important on its own facts, but
Speaker 3: the reason it's important in a broader sense is that
Speaker 3: folks have challenge laws like renewable portfolio standards under this
Speaker 3: extra territoriality principle. You know, the idea being if a
Speaker 3: state says, you know, x percentage of our energy has
Speaker 3: to come for renewable sources. We live on an interconnected grid,
Speaker 3: and so that has effect on the production of energy
Speaker 3: outside of the state. And in a sort of like
Speaker 3: weird moment of potential hope, conservative judges, a lot of
Speaker 3: conservative judges, i should say, not all of them, but
Speaker 3: are kind of unhappy with this extra territoriality idea because
Speaker 3: you know, the whole dormant commerce clause enterprise is not
Speaker 3: really based in the text of the constitution in this
Speaker 3: extra territoriality principle is like kind of the most formalist
Speaker 3: of all that, right, It's like, if there are some
Speaker 3: effects that you question, it's constitutionality. And like almost everything
Speaker 3: has effects. Almost everything in our modern world has effects
Speaker 3: outside of the state. And so just Ascorsage actually wrote
Speaker 3: an opinion when he was on the Tenth Circuit upholding
Speaker 3: Colorado's renewable portfolio standards under this under a challenge based
Speaker 3: on this extra territoriality principle. And so you know, I
Speaker 3: think there's a chance that in this in this case,
Speaker 3: the court maybe goes towards limiting that and then like
Speaker 3: keeping those kinds of RPS laws on safer grounds, not
Speaker 3: you know, in the text of the opinion, but sort
Speaker 3: of as a consequence of the opinion. So that's one
Speaker 3: to watch as well. And then there are just kind
Speaker 3: of like other cases that you know, you might not
Speaker 3: think of as environmental cases, but you know, the court's
Speaker 3: hearing a big affirmative action case next term, and you
Speaker 3: know it'll be important to see what the Court says
Speaker 3: about that for things like you know, environmental justice laws
Speaker 3: or projects or programs, and you know which like try
Speaker 3: to protect overburdened communities, and often there is right up
Speaker 3: corollary with race, and so understanding what the court thinks
Speaker 3: about when you can address those situations is going to.
Speaker 4: Be really important.
Speaker 3: There's an administrative law case the court just took where
Speaker 3: it seems like the Court's going to address a pretty
Speaker 3: important issue about when states have standing to sue and
Speaker 3: potentially make it harder for states to have standing.
Speaker 4: And so in a world where the court's.
Speaker 3: You know, make it harder for individual plaintiffs to sue,
Speaker 3: one sort of right spot has been that, at least
Speaker 3: for the environmental community is that, you know, blue state
Speaker 3: coalitions can still bring suits. Obviously there's the trade off
Speaker 3: with the other group of states being able to break
Speaker 3: suits as well. Right, but like that's that's been one
Speaker 3: way to get to court, and so that's that their
Speaker 3: decisions will be watching to see what the court says
Speaker 3: about state standing. And that's totally you know, it's the
Speaker 3: Court's will be taken like maybe two sittings worth of cases,
Speaker 3: so there'll be more more to come.
Speaker 2: Yeah, yeah, is there any sense I mean, like I
Speaker 2: have especially with oil companies, I don't know, Like I
Speaker 2: I wonder if we'll see US oil companies being sued
Speaker 2: in other countries more even if they start to get
Speaker 2: away with things here.
Speaker 1: Well, it's certainly the case that we, you know, Earth
Speaker 1: Justice does have an international program, and our international program
Speaker 1: primarily supports public interest law organizations in other countries. The
Speaker 1: US has a very developed public interests environmental law program.
Speaker 1: And that's not to say it's very very you know,
Speaker 1: like it's enormous. We have about one hundred and eighty lawyers,
Speaker 1: and that makes us huge and you know, a giant
Speaker 1: law firm in the public interest world, but that's still
Speaker 1: pretty small in the grand scheme of things. In other countries,
Speaker 1: it's an order of magnitude, if not less than that,
Speaker 1: in terms of what the resources are there. Having said that,
Speaker 1: those those organizations and regular old people in other countries
Speaker 1: have been very successful in pushing back on international and
Speaker 1: US oil companies for the local harms that have been
Speaker 1: happening where they have resources to bring those cases. Again,
Speaker 1: the public interest legal community in those in countries like
Speaker 1: you know, South Africa or Australia or Latin America, you know,
Speaker 1: in general, they're just much less well resourced than we
Speaker 1: are in the US, and the structures for public interest
Speaker 1: law are much less developed. But the flip side is
Speaker 1: some of those countries have provisions in their constitution that
Speaker 1: are more directly relevant to those claims. And so we're seeing,
Speaker 1: for example, in places like South Africa, where where planets
Speaker 1: have been able to say, hey, look, you know, we
Speaker 1: have legal protections on these things, and you the courts
Speaker 1: need to figure out ways to make bring those protections
Speaker 1: to life.
Speaker 3: I mean, we the federal constitution. Our federal constitution doesn't
Speaker 3: have you know, those kinds of express provisions, but some
Speaker 3: of the state constitutions do.
Speaker 1: So I don't know if I wanted to with that
Speaker 1: up a little bit sure, I mean, there are direct
Speaker 1: state constitutional protections like Montana. I don't know the precise
Speaker 1: language off the top of my head, but Montana's constitution
Speaker 1: does have protections for people to make sure that they
Speaker 1: have a clean, healthy environment. I forget what the exact
Speaker 1: language is, but what that means is that there's an
Speaker 1: ability for people to go for people in Montana to
Speaker 1: go to court to say, hey, this thing that's happening
Speaker 1: violates the state constitution. And then there are also states
Speaker 1: like Louisiana and Hawaii that have public trust doctrines, and
Speaker 1: those are doctrines that say that the state government that
Speaker 1: state land is that there's an obligation of the government
Speaker 1: to be protecting that in the public interest. And in
Speaker 1: some of those states we've been able to make some headway,
Speaker 1: and other public interests litigans have been able to make
Speaker 1: some headway and saying hey, your state courts need to
Speaker 1: do something with these things. These can't just be written
Speaker 1: on paper. And then finally, there are states like New
Speaker 1: York that are enacting transformative legislation like the CLCPA, the
Speaker 1: Climate Leadership and Community Protection Act in New York, and
Speaker 1: those are super important tools, and I think those are
Speaker 1: increasingly going to be the focus of political climate and
Speaker 1: state level climate action because those laws are going to
Speaker 1: be really important, and we're going to see those being
Speaker 1: done both statutorily by legislators and I think also through
Speaker 1: ballot initiatives that we've seen in places like Washington State
Speaker 1: and elsewhere to bring real legal protections at the state
Speaker 1: level into play.
Speaker 2: That actually totally dovetails with my last question, which is
Speaker 2: we kind of touched on this earlier too. I think
Speaker 2: that there's a certain amount of understandable pessimism about litigation
Speaker 2: because ultimately it will end up in the Supreme Court,
Speaker 2: and then the Supreme Court will rule against anything that's
Speaker 2: good for climate. That's that's like the you know, in
Speaker 2: very broad strokes, the sentiment that I hear a lot.
Speaker 2: So I'm curious what your response is to that.
Speaker 1: Oh, I think the courts are going to remain super
Speaker 1: relevant and if anything more relevant. The old model of
Speaker 1: environmental law was to fight at a purely regulatory level,
Speaker 1: you know, just to sort of go to court and say,
Speaker 1: here's the Clean Air Act. We're going to sue EPA
Speaker 1: for not issuing stricter regulations on this, or if the
Speaker 1: regulations come out and the industry challenges them, to be
Speaker 1: in there to say, hey, wait, these regulations are fine.
Speaker 1: And I do agree that with a highly deregulatory and
Speaker 1: skeptical of agencies Supreme Court, that kind of litigation is
Speaker 1: is going to be harder, and that we're going to
Speaker 1: have to be more thoughtful and cautious in the cases
Speaker 1: that we bring and more aggressive in our defense of
Speaker 1: regulations that around the books and statutes that are on
Speaker 1: the books. On the other hand, you know, the Climate
Speaker 1: Justice and environ Mental justice movements are deeply dovetailed with
Speaker 1: the need for getting systematic change in the way we
Speaker 1: regulate pollution and climate, and a lot of those cases
Speaker 1: are very much local, fact intensive and specific cases about
Speaker 1: specific harms and specific violations of law that are part
Speaker 1: and parcel of a movement for broader change. And those
Speaker 1: kinds of cases brought on behalf of communities where you're
Speaker 1: going into court saying this isn't about some abstract principle
Speaker 1: that's way over there in Washington, DC. This is about
Speaker 1: real people and a pipeline or a mine, or pollution
Speaker 1: that's affecting real lives, whether it's lead in the water
Speaker 1: or a smog in the air. Those cases are going
Speaker 1: to be really important in the years to come, and
Speaker 1: those are cases where what matters is the facts you bring,
Speaker 1: the partners you bring, the the industries that you're you're
Speaker 1: dealing with. Those I think those cases are very live
Speaker 1: and I don't see any way in which those cases
Speaker 1: are going to be, you know, like fundamentally harder, harder
Speaker 1: to bring. You know, there's there's things like standing and
Speaker 1: others that that the that the that the right wing
Speaker 1: courts are trying to these little doctrines that the Court
Speaker 1: is trying to chip away in the side, but I
Speaker 1: fundamentally believe that those cases are going to be both
Speaker 1: increasingly important and that they're going to be continued to
Speaker 1: be very viable and very very powerful.
Speaker 2: Thrilled and Damages are original Critical Frequency productions. This episode
Speaker 2: was reported by me Amy Westervelt and mixed and mastered
Speaker 2: by Bennett Smith. Original music is by Peter duff Our.
Speaker 2: Artwork is done by Matthew Fleming. For ongoing information about
Speaker 2: climate litigation and all sorts of other things, check out
Speaker 2: our website at Drill podcast dot com. You can also
Speaker 2: follow us at We Are Drilled. That's it for this time,
Speaker 2: Thanks for listening, and we'll see you next week.