WEBVTT - The Supreme Court's Continued Climate Take 0:00:10.920 --> 0:00:11.360 Hello. 0:00:11.520 --> 0:00:16.239 I'm Amy Westervelt and this is a special crossover episode 0:00:16.360 --> 0:00:21.800 of Drilled and Damages. Today I am joined by Sam Sinkar, 0:00:22.000 --> 0:00:26.239 Senior Vice President of Earth Justice, and Kirti dad La, 0:00:26.520 --> 0:00:30.920 director of Strategic Legal Advocacy for Earth Justice, to talk 0:00:30.960 --> 0:00:33.960 a little bit more about what exactly the West Virginia 0:00:34.080 --> 0:00:38.080 versus EPA decision meant and to look ahead at some 0:00:38.159 --> 0:00:41.040 of the big cases for climate folks to be watching 0:00:41.120 --> 0:00:44.880 in the next Supreme Court session coming up this fall. 0:00:45.120 --> 0:00:48.920 There's a lot to get into here, from the continued 0:00:48.960 --> 0:00:54.320 attempt to dismantle the quote unquote administrative State, to the 0:00:54.360 --> 0:00:57.640 way that the Clean Water Act is being targeted in 0:00:57.720 --> 0:01:01.840 a case coming up next session, to how litigation remains 0:01:01.880 --> 0:01:06.000 a very important tool even with the Supreme Court on fire. 0:01:06.680 --> 0:01:08.720 We're going to get into all of that and more 0:01:09.240 --> 0:01:11.480 coming up after this quick break. 0:01:20.640 --> 0:01:23.120 My name is Sam Sankar. I'm the senior vice president 0:01:23.240 --> 0:01:29.240 of Programs ED, which means I lead to our lobbying 0:01:29.360 --> 0:01:30.520 and litigation efforts. 0:01:30.880 --> 0:01:35.360 I'm Karite Doatla, and I'm the director at Strategic Legal 0:01:35.400 --> 0:01:39.959 Advocacy or Justice, which in a nutshell means I kind 0:01:39.959 --> 0:01:43.759 of keep track of the goings on in the federal courts, 0:01:44.720 --> 0:01:48.040 especially the Supreme Court, on issues that kind of crop 0:01:48.160 --> 0:01:49.640 up across all of our cases. 0:01:49.920 --> 0:01:52.880 Okay, so I know that it's been a while since 0:01:53.080 --> 0:01:57.800 the West Virginia versus EPA decision came down with a 0:01:57.800 --> 0:02:00.440 couple of months you know, pasted it. What do you 0:02:00.520 --> 0:02:05.840 think the implications of that decision are or will be? 0:02:06.320 --> 0:02:07.040 Yeah, totally. 0:02:07.080 --> 0:02:10.880 So, you know, I think your listeners are already pretty 0:02:10.919 --> 0:02:13.520 well versed in this case. But just as a reminder, 0:02:14.960 --> 0:02:18.240 you know, the case is ostensibly about this Obama era 0:02:18.840 --> 0:02:24.600 regulation called the Clean Power Plant that addressed embissions from 0:02:25.040 --> 0:02:28.600 fossil fuel fired power plants. But that regulation was sort 0:02:28.639 --> 0:02:31.040 of a zombie regulation that had, because of the Supreme 0:02:31.080 --> 0:02:35.400 Court issuing a stay, never got into effect, and that 0:02:35.480 --> 0:02:38.840 was sort of kind of practically dead for all purposes. 0:02:39.000 --> 0:02:40.359 And the Supreme Court. 0:02:40.160 --> 0:02:43.160 Took a case that was about whether or not that 0:02:43.160 --> 0:02:48.600 that zombie regulation was valid, largely to address something called 0:02:48.600 --> 0:02:52.160 the major Questions doctrine, which had sort of been cobbled 0:02:52.200 --> 0:02:54.880 together out of a couple of sentences here and there 0:02:54.919 --> 0:02:58.680 in the Supreme Court's past cases by folks like West 0:02:58.760 --> 0:03:00.760 Virginia and the Group of States that it was leading 0:03:00.760 --> 0:03:03.320 in this case and the industry groups that were on 0:03:03.360 --> 0:03:06.720 their side, and as they put it to the court, 0:03:07.280 --> 0:03:09.960 you know, the idea is that if an a federal 0:03:10.000 --> 0:03:13.760 agency is going to address something that has big economic 0:03:13.800 --> 0:03:17.280 and political consequences, it needs to be able to identify 0:03:17.320 --> 0:03:20.919 something really clear in the statute that gives it the 0:03:20.960 --> 0:03:23.560 authority to do basically exactly what it tried to do. 0:03:24.520 --> 0:03:27.760 And you know, it's sort of obvious just from describing 0:03:28.000 --> 0:03:30.119 the doctor that they pitched to the court that it 0:03:30.160 --> 0:03:34.440 is inherently deregulatory. You know, it only applies when the 0:03:34.480 --> 0:03:38.560 government wants to do something, and the kind of tests 0:03:38.600 --> 0:03:41.840 that it asks agencies to overcome is one that will 0:03:41.840 --> 0:03:46.200 be hard, if not impossible, to overcome in most cases. So, 0:03:46.880 --> 0:03:48.320 you know, they took the case to the court. The 0:03:48.360 --> 0:03:51.320 court accepted the case, and at the end of its term, 0:03:51.360 --> 0:03:53.280 in the last day of its term, actually issued a 0:03:53.320 --> 0:03:55.920 decision in the case that it kind of accepts the 0:03:55.960 --> 0:03:59.800 general premise of what West Virginia and those on its 0:03:59.800 --> 0:04:01.760 side I'd asked the court to do, but doesn't go 0:04:01.840 --> 0:04:04.520 all the way somewhat thankfully, So the court kind of 0:04:04.560 --> 0:04:07.560 accepts the idea that the major questions doctrine exists. It 0:04:07.920 --> 0:04:10.720 you know, describes it using that name for the first time, 0:04:11.480 --> 0:04:15.040 and it says that in certain you know, unusual cases, 0:04:15.320 --> 0:04:19.240 in certain extraordinary cases, it's going to apply this this 0:04:19.279 --> 0:04:23.280 sort of common sense and also constitutionally based assumption that 0:04:23.360 --> 0:04:27.760 Congress didn't mean to give agencies, you know, broad authority 0:04:27.880 --> 0:04:32.479 to do things like reshape the market or you know, 0:04:32.560 --> 0:04:38.400 impose a really significant regulation. So I say it did 0:04:38.920 --> 0:04:41.840 kind of go all the way because it it does, 0:04:42.000 --> 0:04:44.520 you know, have that limiting language there. Does the Court 0:04:44.640 --> 0:04:47.000 does say, you know, it's not supposed to apply in 0:04:47.040 --> 0:04:50.839 every case, But the decision is also pretty mushy in 0:04:50.960 --> 0:04:53.880 terms of saying what it does apply and the factors 0:04:53.920 --> 0:04:57.640 that it's going to consider. So it's a little hard 0:04:57.680 --> 0:04:59.680 to say what the effect of the decision will be 0:04:59.680 --> 0:05:04.000 because we don't have a lower court decision applying it yet. 0:05:04.640 --> 0:05:06.840 But you know, I think it's safe to say that 0:05:07.680 --> 0:05:10.560 the reason this doctrine was kind of invented and created 0:05:10.640 --> 0:05:14.440 and taken to the Supreme Court was because it's deregulatory. 0:05:14.600 --> 0:05:17.720 It was kind of another tool in the toolbox of 0:05:17.800 --> 0:05:23.479 people who don't like federal regulations. And we know from 0:05:23.640 --> 0:05:25.719 what has happened, you know, in the run up to 0:05:25.760 --> 0:05:27.920 the decision and after it that that's exactly how it's 0:05:27.960 --> 0:05:31.039 being used. So we know that people have kind of 0:05:31.040 --> 0:05:34.599 been making noises, either in their comments to agencies or 0:05:34.680 --> 0:05:38.880 in briefs before federal courts or press statements that they 0:05:39.080 --> 0:05:42.280 think that, you know, a whole host of federal regulations 0:05:42.279 --> 0:05:45.120 should be challenged on this basis, and that ranges from 0:05:45.240 --> 0:05:51.280 things like the Department of Transportations fuel efficiency standards for vehicles, 0:05:51.720 --> 0:05:55.799 the new rule that the SEC is working on related 0:05:55.800 --> 0:05:59.080 to climate disclosures, things going all the way down to 0:05:59.240 --> 0:06:03.159 things that seems pretty odd, major like the PA's rules 0:06:03.160 --> 0:06:08.520 regarding overcoming tampering preventing tampering of cars to get around 0:06:08.520 --> 0:06:10.279 promission standards. 0:06:10.040 --> 0:06:12.120 And then don't have nothing to do with the environment. 0:06:12.240 --> 0:06:16.159 Things like the DACA program, so that's an immigration related law. 0:06:16.240 --> 0:06:20.720 There's childes to viasive programs related to the Major Questions doctrine. 0:06:20.839 --> 0:06:23.000 You know, it's a like I said, it's. 0:06:22.839 --> 0:06:25.520 A tool in the toolbox of people that don't like regulations. 0:06:25.720 --> 0:06:29.280 And those people see, you know, see everything as a 0:06:29.360 --> 0:06:30.880 nail and are taking out. 0:06:30.720 --> 0:06:33.480 This hammer and banging on it. And you know, I 0:06:33.520 --> 0:06:34.159 don't mean. 0:06:34.040 --> 0:06:36.400 To say, I just want to be clear, like the 0:06:36.440 --> 0:06:38.120 fact that people are raising this argument all the time 0:06:38.160 --> 0:06:39.920 doesn't mean it's a good argument. It doesn't mean it's 0:06:39.920 --> 0:06:42.320 going to win, but it does mean that the doctorate 0:06:42.360 --> 0:06:44.799 is serving exactly the purpose it was created to serve, 0:06:45.240 --> 0:06:46.080 right right. 0:06:47.080 --> 0:06:51.039 I'm curious about how all of that fits in with 0:06:51.120 --> 0:06:55.640 the context of the Inflation Reduction Act too. First, I'd 0:06:55.640 --> 0:07:00.160 love to sort of hear from from both of your 0:07:00.240 --> 0:07:08.680 thoughts on gaps in that legislation and where litigation might 0:07:08.760 --> 0:07:13.000 play a role in addressing some of the concerns that 0:07:13.040 --> 0:07:16.000 people have about it. But then I also wonder how 0:07:16.040 --> 0:07:21.480 people are thinking about litigation given what's happening at the 0:07:21.520 --> 0:07:25.320 Supreme Court right now. Kind of kind of broadly. 0:07:25.360 --> 0:07:28.120 Sure, well, why don't I take the first part of 0:07:28.160 --> 0:07:34.920 that question, the you know, the first part of what 0:07:34.960 --> 0:07:37.880 does the IRA do and what's the role of litigation 0:07:38.200 --> 0:07:42.960 in the IRA? And you know, I'll like here to 0:07:43.080 --> 0:07:46.640 talk a little bit more about the impact of just 0:07:46.680 --> 0:07:51.560 the general impact of this Supreme Court on litigation in 0:07:51.720 --> 0:07:56.160 service of environmental and public interests. The IRA is first 0:07:56.200 --> 0:08:00.240 and foremost as a spending bill, So one of the 0:08:00.240 --> 0:08:04.520 the things about it is that it's basically giving money 0:08:04.880 --> 0:08:08.680 to a whole lot of different sectors, including the clean 0:08:08.760 --> 0:08:10.920 energy sector and the oil and gas sector, in the 0:08:10.960 --> 0:08:14.560 form of various tax credits and other direct spending. And 0:08:15.080 --> 0:08:18.680 that kind of policy work is not the sort of 0:08:18.800 --> 0:08:21.360 thing that the Supreme Court is going to have a 0:08:21.360 --> 0:08:23.400 lot to do with or the federal courts in general, 0:08:25.440 --> 0:08:30.880 because it's spending. This isn't regulation, And politically speaking, that's 0:08:30.960 --> 0:08:36.559 actually been the secret to making progress legislatively on climate 0:08:36.600 --> 0:08:39.040 is to say, like, let's spend our way out of 0:08:39.040 --> 0:08:42.080 this problem, let's invest in a clean energy economy. And 0:08:42.640 --> 0:08:46.040 the deal, of course, was that this had to go 0:08:46.080 --> 0:08:50.800 along with a lot of oil and gas and problematic 0:08:51.160 --> 0:08:55.559 spending as well, including in technologies like carbon capture and 0:08:55.600 --> 0:09:00.520 sequestration and blue hydrogen which are at best unproven, at 0:09:00.520 --> 0:09:06.559 worst really just you know, the same old stuff in disguise. 0:09:07.280 --> 0:09:10.440 So on the IRA, some of the problematic elements have 0:09:10.559 --> 0:09:14.480 basically been the parts that are going to make it 0:09:14.520 --> 0:09:20.040 easier and cheaper to expand fossil fuel infrastructure across a 0:09:20.080 --> 0:09:22.760 lot of places in the country that already have a 0:09:22.760 --> 0:09:26.880 lot of that infrastructure, and that as a result involve 0:09:26.960 --> 0:09:29.200 a lot of pollution burdens on the people who live there, 0:09:29.880 --> 0:09:34.199 and so ironically, a lot of those communities are the 0:09:34.720 --> 0:09:37.880 foundation of a movement for climate justice that is very 0:09:37.960 --> 0:09:42.960 much part of the political support for this legislation and 0:09:43.040 --> 0:09:47.440 for President Biden's overall success in the last presidential elections. 0:09:47.440 --> 0:09:52.000 So it's ironic that they're going to in many respects 0:09:52.040 --> 0:09:55.520 see the raw side of this deal. So what role 0:09:55.520 --> 0:09:59.559 does litigation play? Well, nothing in the Inflation Reduction Act, 0:09:59.720 --> 0:10:03.640 Nothing in there limits the role of traditional environmental laws. 0:10:04.559 --> 0:10:07.320 And that means that all of that infrastructure, oil and 0:10:07.400 --> 0:10:11.559 gas and problematic pollution generating infrastructure is going to be 0:10:11.600 --> 0:10:14.040 subject to those laws. And so litigation is going to 0:10:14.080 --> 0:10:17.520 have a substantial role in making sure that any development 0:10:17.600 --> 0:10:21.880 that's supported under this act is going to be is 0:10:21.920 --> 0:10:24.160 going to have to pass through the gauntlet of those laws. 0:10:24.240 --> 0:10:27.160 And organizations like Earth Justice are very much going to 0:10:27.160 --> 0:10:29.400 be helping those communities fight back to make sure that 0:10:29.480 --> 0:10:31.559 the future that they get out of this bill is 0:10:31.600 --> 0:10:35.800 the future that they want. Anyway, we could go into 0:10:35.840 --> 0:10:37.400 that a little bit more, but i'll like Koti talk 0:10:37.520 --> 0:10:38.600 about the Court. 0:10:39.600 --> 0:10:41.679 Yeah, I mean as to the Supreme Court. 0:10:42.160 --> 0:10:45.960 I'll just you know, it's not like the Supreme Court 0:10:46.000 --> 0:10:51.400 has ever been like super environmentally friendly, so. 0:10:51.800 --> 0:10:54.520 The Climate Court, I'm just kidding, yeah, exactly. 0:10:54.600 --> 0:10:57.800 So you know, I think it's important to just like 0:10:57.840 --> 0:11:00.360 set the baseline in the right place. But that said, 0:11:01.720 --> 0:11:04.120 you know, obviously this is a different court. This is 0:11:04.120 --> 0:11:07.920 a more conservative court of courts that's more skeptical of 0:11:07.960 --> 0:11:11.319 a federal authority and a federal agency authority in particular. 0:11:12.840 --> 0:11:15.200 But that doesn't mean that like everybody should pack it 0:11:15.280 --> 0:11:18.520 up and go home. It just means that, you know, 0:11:18.600 --> 0:11:21.520 as with any challenge in litigation, you have to be 0:11:21.720 --> 0:11:26.280 forward thinking and you know, and kind of smart about 0:11:26.320 --> 0:11:28.840 how you approach litigation and think about where the risk 0:11:28.960 --> 0:11:31.960 is and think about where you can make progress despite 0:11:32.000 --> 0:11:34.839 that risk. And as Sam I think kind of previewed, 0:11:35.600 --> 0:11:38.280 you know, there's lots of sort of bread and butter 0:11:39.120 --> 0:11:41.839 environmental litigation that just isn't going to make its way 0:11:41.920 --> 0:11:44.360 up to the Supreme Court because it doesn't implicate the 0:11:44.440 --> 0:11:47.760 kind of big picture issues or principles that the Supreme 0:11:47.760 --> 0:11:50.360 Court is concerned about, and that those. 0:11:50.160 --> 0:11:52.400 Are things like you know, when a. 0:11:52.400 --> 0:11:55.720 Facility gets built, it has to you know, get certain 0:11:55.760 --> 0:11:58.480 permits and then those permits need to be enforced in 0:11:58.559 --> 0:12:02.760 our federal environs, going to laws allow citizens people who 0:12:02.840 --> 0:12:05.480 live you know, across the fence line from these really 0:12:05.480 --> 0:12:12.440 polluting facilities too, to help enforce those permitting conditions, right. 0:12:12.480 --> 0:12:14.480 And so those are the kinds of suits where it's 0:12:14.520 --> 0:12:16.960 it's just about a specific permit and whether or not 0:12:17.000 --> 0:12:20.400 it's being complied with. It's not about some big question 0:12:20.520 --> 0:12:21.560 of federal power. 0:12:21.800 --> 0:12:22.040 Right. 0:12:23.120 --> 0:12:25.120 So, you know, those are the kinds of things where 0:12:25.120 --> 0:12:29.240 if you hold people to their legal obligations, you can 0:12:30.160 --> 0:12:33.720 you know, have an effect in these in these frontline communities, 0:12:33.760 --> 0:12:38.880 on these facilities that you know, unfortunately and you know wrongly, 0:12:39.000 --> 0:12:42.719 are are disproportionately burdening these these people. But that's the 0:12:42.760 --> 0:12:46.800 kind of litigation that's not gonna you know, that doesn't 0:12:46.800 --> 0:12:48.520 really happen in the shadow of the Suprene Court. And 0:12:48.559 --> 0:12:52.200 even in figure cases. You know, we at our Justice 0:12:53.480 --> 0:12:56.760 had a pretty important Clean Water Act case a couple 0:12:56.760 --> 0:13:01.280 of years ago that our litigators what for the Supreme Court. 0:13:02.600 --> 0:13:05.720 And you know, it was the five four version, not 0:13:05.760 --> 0:13:10.160 the sixt three version. But even so, you know, we 0:13:10.240 --> 0:13:12.320 still won that case and would have won it under 0:13:12.360 --> 0:13:15.280 this court. So and that's just a matter of being, 0:13:15.440 --> 0:13:18.400 you know, understanding how this Court looks at statutes, understanding 0:13:18.480 --> 0:13:21.040 the perspective of the Supreme Court, and speaking in the 0:13:21.120 --> 0:13:23.840 language they want to be spoken to. Right, So that's 0:13:23.920 --> 0:13:28.440 just litigating well, and you can still win cases that way. 0:13:28.520 --> 0:13:30.880 So you know, I don't mean to be like rosy 0:13:30.880 --> 0:13:34.680 eyed about everything, but I think there's a certain degree 0:13:34.679 --> 0:13:37.440 of just like, really good glorying will still win cases, 0:13:37.480 --> 0:13:40.120 and really strategic glorying can still make a big difference. 0:13:40.640 --> 0:13:43.959 I'm curious what you both think about some of some 0:13:44.040 --> 0:13:48.960 of the quote unquote side deal that the aspects of 0:13:49.000 --> 0:13:53.040 that related to the IRA, especially in terms of you know, 0:13:53.320 --> 0:14:01.120 permitting and NEPA and the ways that what at least 0:14:01.120 --> 0:14:05.280 has been kind of reported on so far seems to 0:14:06.080 --> 0:14:10.079 be getting around some of our kind of you know, 0:14:10.400 --> 0:14:15.120 environmental laws in favor of permitting things like pipeline. And 0:14:15.559 --> 0:14:18.040 I want to ask you specifically about the Mountain Valley 0:14:18.080 --> 0:14:21.080 pipeline in a minute too, but in general, yeah, I 0:14:21.080 --> 0:14:25.200 guess how is Earth Justice approaching that that conversation and 0:14:25.640 --> 0:14:28.560 what are the things that you're kind of hoping to 0:14:29.400 --> 0:14:31.760 not see in the final version of that. 0:14:32.160 --> 0:14:35.000 Well, you know, this is Friday, August twelfth. It's a 0:14:35.000 --> 0:14:40.400 big day for passing the overall IRA. So you know, 0:14:40.480 --> 0:14:43.680 first and foremost, we're looking forward to passage of the 0:14:43.680 --> 0:14:48.280 bill and we're looking forward to President Biden signing it. 0:14:48.280 --> 0:14:51.600 It's worth noting that, you know, the draft of this 0:14:51.720 --> 0:14:55.640 side deal that we have, which is kind of freakishly 0:14:55.840 --> 0:15:00.080 watermarked as API draft, is from several weeks ago, and 0:15:00.120 --> 0:15:05.200 there's been no indication from Senator Schumer or Senator Mansion's 0:15:05.200 --> 0:15:09.280 office they haven't. We haven't seen a more recent version 0:15:09.320 --> 0:15:10.960 of this side deal. In fact, the version that we 0:15:11.040 --> 0:15:14.320 have seen doesn't even include what it. What we gather 0:15:14.480 --> 0:15:16.760 are some specific deals about the the m v P 0:15:16.920 --> 0:15:19.920 the amount of value pipeline. So so a lot of 0:15:19.920 --> 0:15:23.640 what I'll say here is based on something that may 0:15:23.680 --> 0:15:27.200 not be the current deal. I mean that said that, 0:15:27.400 --> 0:15:30.000 the version that we saw from a few weeks ago 0:15:30.320 --> 0:15:35.520 includes a couple of major provisions that are problematic on 0:15:35.800 --> 0:15:40.760 their own. One is a series of provisions that are 0:15:41.200 --> 0:15:45.680 designed to uh in quotes, streamline the permitting process, and 0:15:45.720 --> 0:15:50.520 what that functionally means is making it harder to well 0:15:50.560 --> 0:15:54.800 making making it easier for agencies to do NEPA analyzes 0:15:54.880 --> 0:15:59.600 by by making those analyzes less thorough or allowing them 0:15:59.600 --> 0:16:02.320 to do less thorough analyzes, and then by making it 0:16:02.360 --> 0:16:06.080 harder for people to comment and seek judicial review on 0:16:06.400 --> 0:16:11.080 those analyzes. You know, for example, the statute of limitations 0:16:11.160 --> 0:16:14.960 for NEPA challenges in most cases of six years, and 0:16:15.200 --> 0:16:18.120 under this, under the draft that we've seen, it would 0:16:18.120 --> 0:16:21.040 be five months in some cases, And that may seem like, well, 0:16:21.080 --> 0:16:22.880 that geez, that five months you should you should be 0:16:22.920 --> 0:16:24.560 able to know if there's a problem with the project, 0:16:24.600 --> 0:16:27.440 But in fact, many of these projects get approved long 0:16:27.520 --> 0:16:30.680 before anyone in a community has any idea that that 0:16:30.800 --> 0:16:34.480 something is up. And so given the way that we 0:16:35.040 --> 0:16:38.440 notify communities about what's going on, five months is often 0:16:38.440 --> 0:16:40.720 a laughably short period of time for them to be 0:16:40.800 --> 0:16:43.720 able to respond in court. There's also a bunch of 0:16:43.800 --> 0:16:48.920 other provisions that essentially require the president to prioritize oil 0:16:48.960 --> 0:16:52.440 and gas large oil and gas development for special attention 0:16:52.760 --> 0:16:57.480 through the permitting process and anyway. And there's also some 0:16:57.560 --> 0:17:01.040 things that affect the Clean Water Act. There's some things 0:17:01.080 --> 0:17:07.199 that that are generally pro electricity infrastructure, but also contains 0:17:07.200 --> 0:17:09.200 some problematic visions. So there's a lot of stuff in there. 0:17:09.280 --> 0:17:12.040 We don't really know what the final deal is going 0:17:12.080 --> 0:17:16.320 to be, but we also know that, unlike the IRA, 0:17:16.600 --> 0:17:19.000 there's going to be a real legislative conversation about this. 0:17:19.960 --> 0:17:22.520 We know that, you know, the House hasn't already hasn't 0:17:22.520 --> 0:17:24.480 passed this. This may be a deal among a couple 0:17:24.480 --> 0:17:26.960 of senators, but that doesn't mean that the House of 0:17:27.080 --> 0:17:30.720 Representative is going to do it. And you know, as 0:17:30.760 --> 0:17:33.080 we hope the IRA is going to be passed and 0:17:33.119 --> 0:17:35.480 this side deal is going to have to pass independently, 0:17:36.680 --> 0:17:38.560 I'll let Kurtate talk a little bit about what the 0:17:38.640 --> 0:17:41.080 rumors of what we've heard about this Mountain Valley pipeline, 0:17:41.160 --> 0:17:44.320 and you know, the side deal also includes this slightly 0:17:45.359 --> 0:17:47.640 odd judicial review provision as well. 0:17:47.880 --> 0:17:50.000 Yeah, Kret, can you talk a little bit about the 0:17:50.040 --> 0:17:54.880 Mountain Valley pipeline and also, like related to that, the 0:17:54.400 --> 0:17:57.440 the way that at least what we've seen and what's 0:17:57.480 --> 0:17:59.639 been you know, kind of shared with the press, the 0:17:59.680 --> 0:18:07.520 way that it would dictate jurisdiction seems really troubling, I think. So, Yeah, 0:18:07.560 --> 0:18:10.080 I'd love to hear you your take on that. 0:18:10.400 --> 0:18:15.199 Yeah, So, as Sam kind of previewed for when it 0:18:15.200 --> 0:18:17.880 comes to Mount Value of Pipeline. We don't even have 0:18:18.040 --> 0:18:21.480 you know, the draft text of the provision. We have 0:18:21.560 --> 0:18:26.440 kind of a rumor that Mount Valley Pipeline and its 0:18:26.520 --> 0:18:32.280 backers want and have I guess secured language that would 0:18:32.280 --> 0:18:34.920 take cases out of the Fourth Circuit, which is where 0:18:34.920 --> 0:18:39.040 they're filed under the default you know, like federal statutes 0:18:39.560 --> 0:18:43.160 and I think potentially put them into the d C Circuit. 0:18:43.359 --> 0:18:48.000 And the reason Mount Value Pipeline wants this. 0:18:48.600 --> 0:18:49.960 Is because. 0:18:51.560 --> 0:18:54.960 Basically, the way that courts of appeals work is, you know, 0:18:55.000 --> 0:18:57.639 most of them have a rule that says, you know, 0:18:57.680 --> 0:19:00.960 when one panel which is three judges, gets assigned to 0:19:01.040 --> 0:19:05.000 a case, if a later case comes up that you know, 0:19:05.119 --> 0:19:08.240 involves the same project or it's you know, a set 0:19:08.240 --> 0:19:11.160 of issues or similar record, you know, it's just more 0:19:11.160 --> 0:19:14.520 efficient to asside those to the same panel because like 0:19:14.560 --> 0:19:19.399 they're already familiar with it. And so Mount Value Pipeline's 0:19:19.440 --> 0:19:22.280 first case got assigned to a panel in the Fourth 0:19:22.280 --> 0:19:26.639 Circuit and most of the later cases related to that 0:19:26.720 --> 0:19:30.399 pipeline have also been assigned to the same panel, and 0:19:30.600 --> 0:19:33.560 Mount Value Pipelines upset that it has lost some of 0:19:33.560 --> 0:19:38.560 these cases and already complaint to the Fourth Circuit itself, 0:19:38.760 --> 0:19:41.240 so you know in some of the decisions that it's lost, 0:19:41.320 --> 0:19:43.679 and I should be clear it hasn't lost all of 0:19:43.680 --> 0:19:47.359 these decisions. When when Mount Value Pipeline is making this claim, 0:19:48.119 --> 0:19:52.520 it excludes from the baseline of the number of decisions 0:19:52.520 --> 0:19:55.440 that it's talking about a bunch of decisions related to condemnation, 0:19:55.600 --> 0:19:58.399 which is its authority to take land for the pipeline. 0:19:59.240 --> 0:19:59.840 Almost all of. 0:20:00.240 --> 0:20:03.120 The same group of judges has upheld so like allowing 0:20:03.160 --> 0:20:05.720 them to take private property and their federal statutes to 0:20:05.720 --> 0:20:08.119 build their pipeline, So it kicks those out of the 0:20:08.160 --> 0:20:11.680 denominator to make the numbers look less favorable to it. 0:20:11.760 --> 0:20:14.720 And then it says, you know, we're losing more of 0:20:14.720 --> 0:20:17.199 these cases than we think we should under like the 0:20:17.280 --> 0:20:21.480 law of averages, I guess, and it's already complained to 0:20:21.560 --> 0:20:24.840 the Fourth Circuit in its petitions. You know, when it 0:20:24.880 --> 0:20:27.600 loses a case, it's petitioned for rehearing on bog which 0:20:27.680 --> 0:20:32.120 just means it's asked full Fourth Circuit to consider these decisions. 0:20:32.160 --> 0:20:35.560 And it's kind of jabbed at the panel in those filings, 0:20:35.640 --> 0:20:38.520 and the Fourth Circuit has been full Fourth Circuit, so 0:20:38.560 --> 0:20:41.400 including other judges right, hasn't. 0:20:41.080 --> 0:20:42.720 Taken the bait. 0:20:42.720 --> 0:20:46.119 It hasn't thought that there was you know, worthwhile merit 0:20:46.160 --> 0:20:49.879 to those claims. And it actually moved to basically disqualified 0:20:49.880 --> 0:20:53.119 the panel recently and asked the Fourth Circuit to assign 0:20:53.119 --> 0:20:55.359 these cases to a different panel, and the Fourth Circuit 0:20:55.400 --> 0:21:00.280 said no. And you know, just to be clear, it's 0:21:00.320 --> 0:21:03.680 not like losing all these cases at all. If you 0:21:03.800 --> 0:21:06.919 read these decisions, you know the panel will accept some 0:21:07.040 --> 0:21:09.280 of the claims, it will reject some of the claims. 0:21:09.280 --> 0:21:11.800 They're like thoroughly recent decisions. It's not like they're like 0:21:11.880 --> 0:21:17.639 knee jerk anti pipeline decisions. They're just holding the federal agencies, 0:21:17.680 --> 0:21:20.480 which you know, have obligations under federal statutes. 0:21:20.560 --> 0:21:21.400 They're burdens. 0:21:21.760 --> 0:21:25.400 And so I guess, having you know, failed to make 0:21:25.440 --> 0:21:29.639 an argument that would win in court, now Value Pipeline 0:21:29.720 --> 0:21:36.440 is now gotten its backers to take these cases away. 0:21:36.160 --> 0:21:38.520 From the Fourth Circuit and put them in the DC Circuit. 0:21:38.640 --> 0:21:42.040 And I have to say, you know, reading these decisions, 0:21:42.160 --> 0:21:44.240 I didn't work out these cases. So all I've got 0:21:44.280 --> 0:21:46.240 is read some of the opinions, but they don't strike 0:21:46.320 --> 0:21:47.960 me as the kind of opinions that would come out 0:21:48.000 --> 0:21:50.400 differently if you put them in front of a different 0:21:50.400 --> 0:21:54.840 set of judges, and that's like psychoanalyzed judges. But I 0:21:54.840 --> 0:21:57.080 can't imagine that the DC Circuit is going to be 0:21:57.520 --> 0:22:01.560 you know, that pleased that you know, this pipeline company 0:22:01.680 --> 0:22:04.680 thinks that, like, you know, they've they looked around the 0:22:04.720 --> 0:22:07.680 country and wanted to pick their judges and decided on. 0:22:07.680 --> 0:22:08.560 The d C Circuit. 0:22:08.640 --> 0:22:10.960 You know, I don't think federal judges in general like 0:22:11.000 --> 0:22:15.000 the idea of judge shopping in that way or implying that, 0:22:15.080 --> 0:22:17.200 you know, the Fourth Circuit is biased. Those are their 0:22:17.200 --> 0:22:20.399 colleagues too, So I'm not really sure it's going to 0:22:20.440 --> 0:22:21.040 work out. 0:22:20.880 --> 0:22:23.440 Any better for them at the end. 0:22:23.920 --> 0:22:26.679 But you know, just am your question kind of hinted 0:22:26.680 --> 0:22:29.840 at it that it just as a bottom line matter, 0:22:29.920 --> 0:22:34.960 it's sort of distressing that that a really powerful industry 0:22:35.560 --> 0:22:41.479 group can pick its judges in its cases. Yeah, in 0:22:41.600 --> 0:22:45.160 order to kind of jerrymander the outcomes that at once 0:22:45.880 --> 0:22:49.119 that that just on its face looks really. 0:22:48.880 --> 0:22:51.800 Bad, seems like a bad precedent to set. 0:22:53.840 --> 0:22:57.119 Yeah, at the same time, it's ironic that that the 0:22:57.119 --> 0:22:59.800 they want to be in the d C circuit because 0:23:01.080 --> 0:23:04.400 you know the d C Circuit is not the Fifth Circuit. 0:23:04.800 --> 0:23:09.320 In fact, as as environmental lawyers, I you know, that's 0:23:09.359 --> 0:23:11.720 not a bad place for us. It tends to be 0:23:11.760 --> 0:23:17.920 a highly technocratic and very you know. It's back when 0:23:17.920 --> 0:23:20.120 I was an active litigator, that was my favorite court 0:23:20.200 --> 0:23:22.240 to litigate in because they dug in and they would 0:23:22.280 --> 0:23:25.720 really get to know the details of the arguments. And 0:23:26.359 --> 0:23:28.880 if I'm not at all sure that if I were 0:23:28.880 --> 0:23:31.119 an industry that that's where I go. Now, certainly, if 0:23:31.160 --> 0:23:32.959 they had said we want to go to the Fifth Circuit, 0:23:33.520 --> 0:23:37.720 I would have number one said, well, I can understand why, 0:23:38.400 --> 0:23:40.240 and number two I would have been all the more 0:23:40.280 --> 0:23:45.320 distressed that that they really were just, you know, forum 0:23:45.359 --> 0:23:49.600 shopping in the most naked way. But you know, so 0:23:49.760 --> 0:23:54.200 anyway that I share Curty's concern that that we're moving 0:23:54.240 --> 0:23:57.560 specific cases around, I do think it's sort of funny 0:23:57.560 --> 0:23:59.720