WEBVTT - SCOTUS Turns Trump Down & Another EPA Loss 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:08.680 --> 0:00:11.840 President Donald Trump is zero to two at the Supreme 0:00:11.920 --> 0:00:15.720 Court in his second term. The Court rejected his request 0:00:15.800 --> 0:00:19.919 to toss a judge's order that requires the quick disbursement 0:00:20.040 --> 0:00:23.400 of as much as two billion dollars owed to contractors 0:00:23.720 --> 0:00:28.360 for already completed work. The justices were divided five to four, 0:00:28.760 --> 0:00:32.600 with the Chief Justice and Justice Amy Cony Barrett joining 0:00:32.640 --> 0:00:35.720 the three liberals in the majority. And joining me is 0:00:35.760 --> 0:00:39.959 Bloomberg News Supreme Court reporter Greg Store Greg tell us 0:00:39.960 --> 0:00:41.640 about this dispute. 0:00:42.560 --> 0:00:45.360 So this all started with the administration putting a broad 0:00:45.440 --> 0:00:49.559 freeze on foreign aid and a judge putting a temporary 0:00:49.640 --> 0:00:53.319 restraining order on that broad freeze. And where we are 0:00:53.400 --> 0:00:56.560 now is that the judge said, Hey, despite the fact 0:00:56.560 --> 0:00:59.800 that I put that freeze on hold, it's still happening. 0:01:00.120 --> 0:01:03.520 So in a follow up order, this judge, Judge all Lee, said, 0:01:03.960 --> 0:01:07.840 I'm going to require the administration to make payments of 0:01:07.880 --> 0:01:12.080 anything that was owed as of February thirteenth, and you 0:01:12.120 --> 0:01:15.320 have thirty six hours to do it. And so what 0:01:15.360 --> 0:01:19.160 the Supreme Court case was about was the Trump administration saying, hey, 0:01:19.240 --> 0:01:23.319 put that compliance order on hold because we can't actually 0:01:23.319 --> 0:01:26.520 comply that quickly, and the judge overstepped his authority by 0:01:27.040 --> 0:01:28.400 ordering us to make these payments. 0:01:28.920 --> 0:01:31.120 They said they couldn't do it that quickly, But this 0:01:31.280 --> 0:01:34.000 was money that was supposed to be paid before. 0:01:34.200 --> 0:01:34.480 Right. 0:01:34.720 --> 0:01:36.600 Does that make sense that they said they couldn't do 0:01:36.640 --> 0:01:38.920 it that quickly. Don't they have it on hand? 0:01:39.240 --> 0:01:42.280 It's certainly hard to tell, and based on the court record, 0:01:42.400 --> 0:01:44.800 it's not clear what exactly is going on. We know 0:01:44.880 --> 0:01:47.960 that this is happening at the same time that huge 0:01:48.040 --> 0:01:53.440 numbers of USAID, the agency that funds most of this staffers, 0:01:53.480 --> 0:01:57.600 have been laid off or furloughed, and so you know, 0:01:57.680 --> 0:02:00.480 it may be at least in part that they're aren't 0:02:00.560 --> 0:02:02.960 people there who can do this sort of stuff the 0:02:02.960 --> 0:02:05.880 way they used to. But yes, your underlying question is 0:02:06.000 --> 0:02:09.600 aren't these all payments that under the normal course, would 0:02:09.639 --> 0:02:12.240 have been made by now, or at least aren't most 0:02:12.240 --> 0:02:14.959 of them? And the answer is yes. So one might 0:02:15.000 --> 0:02:17.720 have imagined that there was a mechanism for actually paying 0:02:17.760 --> 0:02:18.320 these things. 0:02:19.080 --> 0:02:22.480 So you had two conservatives, the Chief Justice and Justice 0:02:22.520 --> 0:02:26.639 Amy Coney Barrett, joining with the three liberals. What did 0:02:26.680 --> 0:02:27.440 they decide. 0:02:27.840 --> 0:02:31.000 Yeah. So again, this was the Trump administration asking the 0:02:31.000 --> 0:02:34.080 Supreme Court to put this compliance order, this order to 0:02:34.120 --> 0:02:37.120 pay as much as two billion dollars on hold, and 0:02:37.480 --> 0:02:41.520 Chief Justice Roberts, Justice Barrett joined the Court's three liberal 0:02:41.639 --> 0:02:44.080 justices to say, no, we're not going to put that 0:02:44.200 --> 0:02:46.880 order on hold. Now, there's a twist to this, which 0:02:46.919 --> 0:02:50.760 is that the order was originally put in place last week, 0:02:50.880 --> 0:02:55.000 on Tuesday of last week, and Chief Justice Roberts had 0:02:55.240 --> 0:02:59.239 temporarily put it on hold, which means that the deadline 0:02:59.320 --> 0:03:02.840 for actually make these payments has already passed. The original 0:03:02.840 --> 0:03:07.600 deadline was a week ago today, and so it's not 0:03:07.800 --> 0:03:11.919 clear exactly what happens next. Obviously, since that deadline has passed, 0:03:11.919 --> 0:03:15.160 the administration can't meet it. The Supreme Court did suggest 0:03:15.200 --> 0:03:18.639 that the district Judge juj A. Lee should clarify his 0:03:19.120 --> 0:03:23.600 order and take into account the feasibility of meeting deadlines. 0:03:23.880 --> 0:03:26.919 So probably the next step involves him. But the order 0:03:26.919 --> 0:03:30.240 from the court from the Supreme Court today was a 0:03:30.400 --> 0:03:34.120 little bit ambiguous on exactly how this is supposed to work. 0:03:34.560 --> 0:03:40.800 Four Conservatives dissented, Justices Clarence Thomas, Samuel Alito, Neil Gorsich 0:03:40.920 --> 0:03:45.240 and Brett Kavanaugh. Justice Alito said he was stunned by 0:03:45.280 --> 0:03:48.960 the majority's decision, and he wrote an eight page descent 0:03:49.640 --> 0:03:52.240 to the majority's one paragraph order. 0:03:52.920 --> 0:03:55.600 Well, his problem was, he said that the district judge 0:03:55.640 --> 0:03:59.480 way overstepped his authority. He called it. Justice Alito called 0:03:59.480 --> 0:04:02.360 it judicial hubris, and he said the court was now 0:04:02.440 --> 0:04:06.400 allowing that, rewarding that and as Leader put it, quote, 0:04:06.440 --> 0:04:09.920 it imposes a two billion dollar penalty on American taxpayers. 0:04:09.960 --> 0:04:12.760 To say that this was a strongly worded dissent would 0:04:12.800 --> 0:04:17.039 be an understatement. Essentially, he said that he thought the 0:04:17.040 --> 0:04:20.719 administration had a really strong argument that the groups could 0:04:20.720 --> 0:04:23.880 not recoup this money, could not force these payments, at 0:04:23.960 --> 0:04:27.040 least in the context of this lawsuit. He talked about 0:04:27.080 --> 0:04:30.719 sovereign immunity, He talked about the court's jurisdiction, and he 0:04:30.800 --> 0:04:34.400 said that because of that, he would have kept a 0:04:34.640 --> 0:04:38.160 pause on this lower court order and maybe even granted 0:04:38.360 --> 0:04:42.279 review of the administration's arguments, granted cert in the case. 0:04:42.360 --> 0:04:45.240 But he certainly would not have let this lower court 0:04:45.400 --> 0:04:49.000 order be reinstated and essentially forced the administration to make 0:04:49.040 --> 0:04:49.680 these payments. 0:04:50.240 --> 0:04:54.960 Did the administration appeal the judge's order itself, or did 0:04:54.960 --> 0:04:57.920 it appeal the compliance timeline for the order. 0:04:58.560 --> 0:05:02.599 The administration appealed only the compliance timeline. It did not 0:05:02.880 --> 0:05:08.080 challenge the original temporary restraining order that lifted the freeze 0:05:08.080 --> 0:05:10.479 that have been put in place. And part of the 0:05:10.480 --> 0:05:14.200 reason for that is that there are real questions about 0:05:14.240 --> 0:05:17.400 whether a t RO can be appealed at all. Normally, 0:05:17.640 --> 0:05:20.640 the answer is no, it can't be appealed, and the 0:05:20.680 --> 0:05:23.880 administration in another case, has been trying to sort of 0:05:24.080 --> 0:05:28.080 carve out an exception to that general principle for cases 0:05:28.120 --> 0:05:32.520 involving the power of the executive branch. But the administration 0:05:33.040 --> 0:05:35.719 argued that this compliance order is not just a temporary 0:05:35.720 --> 0:05:38.200 restraining order that keeps the status quo in place, but 0:05:38.279 --> 0:05:41.760 it's actually an injunction that forces them to do something, namely, 0:05:42.160 --> 0:05:45.679 pay a lot of money. And so they were arguing 0:05:46.080 --> 0:05:48.640 that is something where the Supreme Court can get involved 0:05:48.720 --> 0:05:50.320 right away, well less than. 0:05:50.360 --> 0:05:54.400 Two months into Trump's second term, and this is the 0:05:54.480 --> 0:05:58.440 second time the administration has gone to the court, and 0:05:58.480 --> 0:06:02.360 not in the ordinary course appealing an appellate court's decision, 0:06:03.040 --> 0:06:05.800 but on an emergency basis. Do you think that was 0:06:05.839 --> 0:06:10.120 part of the reason that those five justices said no. 0:06:10.880 --> 0:06:12.920 You know, it's hard to say too much about the 0:06:12.960 --> 0:06:17.000 motivations of the five because the order itself is only 0:06:17.120 --> 0:06:19.200 a page along and really doesn't have any reasoning. So 0:06:19.480 --> 0:06:23.560 I'm speculating to some degree here. It is certainly unusual 0:06:23.680 --> 0:06:26.720 for the Supreme Court to get involved in any litigation 0:06:27.320 --> 0:06:30.599 this quickly, and that is probably part of the hesitance. 0:06:31.040 --> 0:06:35.560 The other part was very likely that normally a district judge, 0:06:35.640 --> 0:06:38.240 if he or she enters a temporary restraining order or 0:06:38.279 --> 0:06:41.000 any other order, has some power to enforce that if 0:06:41.120 --> 0:06:44.600 a party's not complying with it, And had the Supreme 0:06:44.680 --> 0:06:48.760 Court granted the Trump administration request, it would have done 0:06:48.800 --> 0:06:50.760 a little cutting out of the legs of a federal 0:06:50.839 --> 0:06:55.200 district judges when they see an order not being complied 0:06:55.240 --> 0:06:59.159 with when they conclude that a party, in particularly this administration, 0:06:59.400 --> 0:07:02.719 might not be applying with an order. So I would imagine, 0:07:02.760 --> 0:07:05.000 again I'm speculating a little bit here, but I would 0:07:05.040 --> 0:07:06.680 very much imagine that was in the back of the 0:07:06.720 --> 0:07:09.040 minds of many of the justices in the majority. 0:07:09.440 --> 0:07:12.920 So this is the second time that the Supreme Court 0:07:13.080 --> 0:07:17.640 has turned the Trump administration away less than two weeks ago, 0:07:17.840 --> 0:07:21.160 they refuse to let Trump fire the head of an agency. 0:07:21.560 --> 0:07:23.560 Does this indicate that the court is going to provide 0:07:23.600 --> 0:07:26.280 some guardrails for Trump or is it too soon to tell? 0:07:26.480 --> 0:07:28.880 I would say it's too soon to tell. It gives 0:07:28.920 --> 0:07:31.400 a little suggestion that they might be willing to keeping 0:07:31.400 --> 0:07:33.840 in mind that it's only five of the justices for 0:07:34.000 --> 0:07:37.720 them dissented in very strong terms. The earlier case, which 0:07:37.760 --> 0:07:40.040 is one that almost certainly will be back probably in 0:07:40.080 --> 0:07:43.120 the next to a week or two, involved the President 0:07:43.200 --> 0:07:46.200 trying to fire somebody. This guy who is known as 0:07:46.200 --> 0:07:48.960 the Special Council Hampton Dellinger, is basically the head of 0:07:48.960 --> 0:07:53.560 an office that protects whistleblowers, and the Court essentially kicked 0:07:53.560 --> 0:07:55.920 the can down the road a little bit, which let 0:07:56.080 --> 0:08:00.320 Hampton Dellinger stay in his job for now, but left 0:08:00.320 --> 0:08:03.520 open whether ultimately the administration will be able to fire him. 0:08:03.960 --> 0:08:08.239 Gorsachen Alido also dissented in that case, the Dellinger case. 0:08:08.920 --> 0:08:12.240 Do you think that indicates that they are two pretty 0:08:12.320 --> 0:08:15.680 reliable votes for Donald Trump in every case? 0:08:16.400 --> 0:08:18.640 I don't want to say anything too broad because these 0:08:18.640 --> 0:08:22.320 are individual cases, but certainly, if I'm the Trump administration, 0:08:22.400 --> 0:08:24.840 if I'm Donald Trump. I feel very good about Sam 0:08:24.920 --> 0:08:27.000 Alito and Neil Gorsich in most of the cases that 0:08:27.000 --> 0:08:30.800 are likely to come before the court. Probably also Clarence Thomas, who, 0:08:30.880 --> 0:08:33.560 even though he wasn't part of that original dissent, has 0:08:33.760 --> 0:08:36.760 over the years strongly suggested that he is sympathetic to 0:08:36.920 --> 0:08:39.720 what Donald Trump is trying to do. And then, you know, 0:08:39.800 --> 0:08:42.400 as with so many cases at the Supreme Court, these 0:08:42.559 --> 0:08:45.720 fights are probably going to depend on the sort of 0:08:45.800 --> 0:08:49.760 center right justices of John Roberts, Amy Cony Barrett, and 0:08:49.840 --> 0:08:52.480 Brett Kavanaugh to determine which side ultimately wins. 0:08:53.160 --> 0:08:55.880 Yeah, I didn't know whether to add in Clarence Thomas there, 0:08:55.920 --> 0:08:58.239 because he could have had a lot of different reasons 0:08:58.679 --> 0:09:01.800 for agreeing with the major already on the Dellinger case. So, 0:09:02.360 --> 0:09:04.120 but that did surprise me that he was with the 0:09:04.160 --> 0:09:04.800 majority there. 0:09:05.120 --> 0:09:07.280 I have a theory, but it's just a theory, which 0:09:07.320 --> 0:09:09.800 is that he basically took one for the team. Did 0:09:10.000 --> 0:09:12.679 Roberts a favor because if he had joined the descent 0:09:13.120 --> 0:09:17.319 there would not have been five justices on board for anything, 0:09:17.480 --> 0:09:19.400 you know, this notion of holding it in the bands, 0:09:19.880 --> 0:09:23.160 and so by not dissenting, he or at least not 0:09:23.200 --> 0:09:28.240 dissenting publicly. He you know, let the court issue some 0:09:28.280 --> 0:09:30.880 sort of order. So that's my theory. 0:09:31.360 --> 0:09:34.120 I think it's a good theory, Greg, because there's often 0:09:34.160 --> 0:09:37.760 horse trading going on behind the scenes. Do these two 0:09:37.880 --> 0:09:41.080 Trump appeals to the Supreme Court in less than two 0:09:41.200 --> 0:09:45.000 months tell us that you and the Supreme Court are 0:09:45.040 --> 0:09:47.640 going to be very busy in the next four years. 0:09:48.200 --> 0:09:51.560 I mean, one hundred cases have already been filed over 0:09:51.600 --> 0:09:54.240 his executive orders and the like. 0:09:55.520 --> 0:09:58.680 Absolutely. I think both these two cases we've talked about, 0:09:58.760 --> 0:10:02.320 the foreign aid funding and the Special Council case are 0:10:02.440 --> 0:10:04.760 likely to come back to the Supreme Court pretty quickly. 0:10:04.840 --> 0:10:07.640 And then we have all the one hundred other cases 0:10:07.679 --> 0:10:12.199 involving things like birthright citizenship, the mass firing of employees, 0:10:12.600 --> 0:10:15.720 funding for other parts of the government, and very very 0:10:15.800 --> 0:10:18.600 likely these will get up to the Supreme Court fairly quickly. 0:10:18.960 --> 0:10:23.600 That being said, one possible effect of the Supreme Court's 0:10:23.679 --> 0:10:27.120 ordered today might be that it sends a bit of 0:10:27.160 --> 0:10:30.600 a message to the Trump administration, think carefully before you 0:10:30.640 --> 0:10:32.280 bring stuff to us, because we're not just going to 0:10:32.280 --> 0:10:34.720 be a rubber stamp for you. So it might have 0:10:35.160 --> 0:10:38.760 some effect in terms of reducing the number of applications 0:10:39.000 --> 0:10:41.760 that the Trump administration brings to the Supreme Court. 0:10:41.880 --> 0:10:45.680 I'll bet the justices are hoping that's true. Thanks so much, Greg. 0:10:46.000 --> 0:10:50.000 That's Bloomberg Supreme Court reporter Greg Store coming up next 0:10:50.000 --> 0:10:53.120 on the Bloomberg Law Show. The Supreme Court makes it 0:10:53.240 --> 0:10:57.480 harder for the EPA to police sewage discharges in another 0:10:57.600 --> 0:11:00.839 loss for the agency at the Court, and later in 0:11:00.880 --> 0:11:04.400 the show, the justices confront the question of what to 0:11:04.440 --> 0:11:09.239 do with the growing pile of nuclear waste. Another setback 0:11:09.320 --> 0:11:12.960 for the EPA at the Supreme Court, with the justices 0:11:13.080 --> 0:11:16.680 ruling for San Francisco in a case about the discharge 0:11:16.720 --> 0:11:21.360 of raw sewage that sometimes occurs during heavy rains, a 0:11:21.440 --> 0:11:24.960 ruling that will make it harder for environmental regulators to 0:11:25.120 --> 0:11:28.520 limit water pollution. In a five to four vote, the 0:11:28.559 --> 0:11:33.600 Court's conservative majority ruled that the EPA overstepped its authority 0:11:33.679 --> 0:11:37.320 under the Clean Water Act with water pollution permits that 0:11:37.440 --> 0:11:42.480 contain vague requirements for maintaining water quality. The decision is 0:11:42.520 --> 0:11:46.320 the latest in which the conservative justices have rained in 0:11:46.440 --> 0:11:51.720 pollution control efforts. But one conservative justice, Amy Coney Barrett, 0:11:52.040 --> 0:11:55.240 joined the court's three liberals in descent. My guest is 0:11:55.360 --> 0:11:59.240 environmental law expert Pat Parento, a professor at the Vermont 0:11:59.320 --> 0:12:03.200 Law and Grad you at School. Pat Justice Samuel Alito 0:12:03.320 --> 0:12:07.839 wrote the majority opinion. Why did the five Conservatives rule 0:12:08.040 --> 0:12:10.040 against the EPA? 0:12:10.320 --> 0:12:14.240 So Alito wants to rewrite the Clean Water Act, No surprise, 0:12:14.480 --> 0:12:17.000 he doesn't like the way Congress set it up, and 0:12:17.080 --> 0:12:21.280 so he's instructed EPA that when they're dealing with a 0:12:21.360 --> 0:12:26.560 problem like combined sewer overflows, where you have a mixture 0:12:26.640 --> 0:12:30.839 of pollutants. Right, if you think about this, a CSO 0:12:31.480 --> 0:12:37.320 diverts sewage from the treatment plant directly in this case, 0:12:37.360 --> 0:12:40.280 to the ocean, but it also collects all the storm 0:12:40.320 --> 0:12:46.040 water from the urban surface. So you have this literally 0:12:46.240 --> 0:12:51.719 toxic soup of dozens of different kinds of pollutants. So 0:12:52.120 --> 0:12:55.480 EPA's approach to this kind of a problem is to say, 0:12:56.280 --> 0:13:02.079 we have nine best management practices for you to use 0:13:02.520 --> 0:13:07.760 to limit the number of times you're bypassing your treatment plan. 0:13:08.360 --> 0:13:08.760 Okay. 0:13:09.320 --> 0:13:11.520 Alito doesn't talk about any of this. He makes a 0:13:11.559 --> 0:13:14.640 brief reference to EPA's policy. 0:13:14.360 --> 0:13:16.040 Approach to CSOs. 0:13:16.360 --> 0:13:21.840 What he doesn't say is that Congress codified that policy 0:13:22.320 --> 0:13:25.680 in nineteen eighty two and put it into the Clean 0:13:25.720 --> 0:13:30.680 Water Act. EPA wasn't making this up. EPA was following 0:13:30.720 --> 0:13:33.840 what it's done for a very long time, decades. But 0:13:33.920 --> 0:13:34.960 Alito doesn't like it. 0:13:35.360 --> 0:13:36.560 He says it's too vague. 0:13:36.920 --> 0:13:39.679 He says, what you have to do, EPA is come 0:13:39.760 --> 0:13:44.840 up with specific limits for each and every pollutant that 0:13:45.240 --> 0:13:51.680 the City of San Francisco is responsible for managing. That's 0:13:51.720 --> 0:13:56.680 an enormous undertaking, right Just think about all the science, 0:13:57.200 --> 0:13:59.400 all of the analysis that you'd have to do to 0:13:59.600 --> 0:14:04.040 develop numerical limits for all of these different pollutants. It's 0:14:04.080 --> 0:14:08.160 not workable. It's something EPA would do if it could, 0:14:08.800 --> 0:14:11.720 but it can't. So it does the next best thing. 0:14:11.760 --> 0:14:12.880 It says to San. 0:14:12.760 --> 0:14:16.240 Francisco, here are a whole bunch. There's over one hundred 0:14:16.240 --> 0:14:19.960 pages in this permit, one hundred pages of detail. Here 0:14:20.040 --> 0:14:22.800 are the things that we know we can set technology 0:14:22.840 --> 0:14:27.880 standards for. But you still have to meet water quality standards. 0:14:28.240 --> 0:14:31.680 You still have to protect beneficial uses of water. What 0:14:31.760 --> 0:14:35.320 are those swimming? What happens when you have a cso 0:14:35.440 --> 0:14:40.320 bypass sewage raw sewage? As Justice Barrett said in her 0:14:40.360 --> 0:14:45.120 dissent toilet paper goes into the ocean where people are swimming, 0:14:45.400 --> 0:14:47.880 and you can imagine what's with the toilet paper. So 0:14:48.240 --> 0:14:53.720 that's the situation that EPA has inherited and confronted and 0:14:53.960 --> 0:14:57.960 historically has dealt with. Alito says, no, that's no good 0:14:58.320 --> 0:15:02.040 going forward, EPA. You have to come up with specific 0:15:02.600 --> 0:15:06.480 limits for each and every pollutant and tell cities like 0:15:06.560 --> 0:15:10.600 San Francisco and New York and Boston and even Burlington, 0:15:10.720 --> 0:15:13.680 Vermont as CSOs. Right, you have to tell all of 0:15:13.680 --> 0:15:16.120 these municipalities. 0:15:15.600 --> 0:15:17.680 Exactly what they have to do. 0:15:18.160 --> 0:15:23.080 To comply with water quality standards. It's an impossible burden 0:15:23.320 --> 0:15:28.240 for the EPA, certainly given what Trump is proposing to 0:15:28.360 --> 0:15:32.040 do to EPA, which is to gut it, to hollow 0:15:32.080 --> 0:15:35.360 it out, so it won't have the staff, it won't 0:15:35.400 --> 0:15:38.640 have the budget, it won't be able to do what 0:15:38.720 --> 0:15:40.840 Alito has ordered it to do. 0:15:41.520 --> 0:15:44.600 Pat We've talked before about how unusual it was that 0:15:44.640 --> 0:15:50.320 San Francisco, a liberal city, was fighting the EPA over 0:15:50.440 --> 0:15:54.440 water pollution. Why did San Francisco have such trouble with 0:15:54.560 --> 0:15:55.880 these regulations? 0:15:56.800 --> 0:16:02.800 Cost? The fix for these CSOs is incredibly expensive, billions 0:16:02.840 --> 0:16:07.840 of dollars, literally, billions okay, But you know, if you 0:16:08.160 --> 0:16:11.160 don't want to comply with the law because you can't 0:16:11.280 --> 0:16:14.560 because you're too poor or you can't raise the money 0:16:14.560 --> 0:16:16.480 to do it, you need to go to Congress and 0:16:16.480 --> 0:16:20.080 get an exemption. But you can't just declare it's too 0:16:20.160 --> 0:16:23.480 expensive to comply with the Clean Water Act. But that's 0:16:23.520 --> 0:16:27.960 what's driving San Francisco. It's almost bankrupt. It has enormous 0:16:28.000 --> 0:16:31.600 financial problems. It has a hollowed out downtown. It's a 0:16:31.720 --> 0:16:33.960 very sad thing to see San Francisco one of the 0:16:33.960 --> 0:16:37.320 most beautiful cities on earth when it was vibrant, you know, 0:16:37.360 --> 0:16:41.560 and flourishing, not now. So that's the basic problem. Other 0:16:41.680 --> 0:16:44.960 cities have done this. I was involved in one of 0:16:45.000 --> 0:16:49.400 the earliest cases, suing the city of Portland, Oregon, for 0:16:49.560 --> 0:16:53.160 its CSO problem. It has nine of these massive tunnels 0:16:53.240 --> 0:16:57.800 or pipes that discharge to the Willamette River raw sewage. 0:16:57.960 --> 0:17:01.080 We sued them in the early nineteen ninety We wanted 0:17:01.120 --> 0:17:04.560 a victory in the Ninth Circuit. And what did Portland do? 0:17:04.640 --> 0:17:06.560 It fought us for a while, but what did it do? 0:17:06.680 --> 0:17:08.800 Once the Ninth Circuit said you have to do something 0:17:08.840 --> 0:17:12.080 about this, It decided to build a whole new treatment plant. 0:17:12.119 --> 0:17:14.760 It cost a billion dollars, but they got rid of 0:17:14.800 --> 0:17:19.720 the nine CSO pipes that were contaminating the Willamette River. 0:17:20.320 --> 0:17:23.200 The city of Chicago had the similar problem. What did 0:17:23.240 --> 0:17:27.879 they do They built deep underground tunnels to hold the 0:17:27.960 --> 0:17:32.440 storm water so it didn't overwhelm the treatment plant. Those 0:17:32.480 --> 0:17:36.359 are the kinds of choices that you face. Separate the 0:17:36.720 --> 0:17:40.800 storm water from the sewage water, build more treatment facilities, 0:17:41.760 --> 0:17:46.120 figure out something to do with these CSOs. But one 0:17:46.160 --> 0:17:50.320 thing you can't do is continue to contaminate public water. 0:17:51.080 --> 0:17:52.400 That's what the law requires. 0:17:52.800 --> 0:17:56.280 So, as you mentioned, Justice Amy Coney Barrett, a conservative, 0:17:56.880 --> 0:18:00.840 sided with the courts three liberal justices. I don't want 0:18:00.880 --> 0:18:02.720 to say it was the women against the men, but 0:18:02.760 --> 0:18:05.200 that's what it turned out to be. Tell us about 0:18:05.200 --> 0:18:05.719 her descent. 0:18:06.440 --> 0:18:09.400 Amy Komy Barrett nailed it. I mean, what she did 0:18:09.560 --> 0:18:13.679 was really remarkable. She actually read the statute, you know, 0:18:14.119 --> 0:18:17.040 and she said, no, I'm looking at the statute. And 0:18:17.080 --> 0:18:20.960 the statute authorizes EPA to not only set these technology 0:18:21.000 --> 0:18:25.840 based what are called affluent limitation standards, but Congress deliberately 0:18:25.880 --> 0:18:28.280 thought about, well what if they don't work? What if 0:18:28.320 --> 0:18:31.160 they don't actually accomplish the goal of protecting public water, 0:18:31.440 --> 0:18:37.000 meeting water quality standards, protecting beneficial uses fishing, swimming, drinking water, 0:18:37.080 --> 0:18:39.000 and all the rest of it. So she said, so 0:18:39.040 --> 0:18:43.240 Congress thoughtfully said, well, as a backup, you can include 0:18:43.280 --> 0:18:48.880 in these requirements other limitations necessary to protect water quality. 0:18:48.960 --> 0:18:52.160 And she said, that's exactly what EPA is doing. It's 0:18:52.200 --> 0:18:54.600 like going to a doctor and a doctor says your 0:18:54.600 --> 0:18:57.720 blood pressure's high. The doctor's not going to necessarily tell 0:18:57.760 --> 0:19:00.800 you what you have to eat to your blood pressure. 0:19:00.800 --> 0:19:03.280 Now you might, you might suggest less salt, you know, 0:19:03.600 --> 0:19:06.919 but he's basically going to say, your illness here is 0:19:07.000 --> 0:19:09.520 high blood pressure. Do something about it. It's something I 0:19:09.560 --> 0:19:12.919 happen to know something about, right. So that's what she 0:19:13.119 --> 0:19:17.399 analogized the Clean Water Act to. It was EPA saying 0:19:17.720 --> 0:19:20.359 you must meet these water quality standards. And by the way, 0:19:20.960 --> 0:19:22.360 where do water quality. 0:19:22.040 --> 0:19:22.840 Standards come from? 0:19:22.920 --> 0:19:25.040 They come from the state. They come from the state 0:19:25.080 --> 0:19:29.840 of California. So these are standards that California itself has 0:19:29.880 --> 0:19:33.000 adopted to protect its water and to protect its people 0:19:33.280 --> 0:19:34.920 because these are public health threats. 0:19:34.960 --> 0:19:37.119 And so she said, you know, you've. 0:19:36.880 --> 0:19:40.840 Signed up for protecting these uses of water, now figure 0:19:40.840 --> 0:19:42.720 out how to do it. And she said, and if 0:19:42.760 --> 0:19:46.080 EPA overstepped by requiring you to do something that, if 0:19:46.119 --> 0:19:49.800 she put it as arbitrary or irrational, the remedy for 0:19:49.920 --> 0:19:54.400 that is to go to court and challenge EPA's requirement 0:19:54.760 --> 0:19:59.080 when EPA imposes it. The remedy isn't to wait until 0:19:59.119 --> 0:20:03.320 you violated and then come into court crying and complaining 0:20:03.359 --> 0:20:06.600 about we really can't comply with the permit we signed. 0:20:06.800 --> 0:20:10.199 So that was amy Cony Barrett's approach. This is the 0:20:10.240 --> 0:20:12.959 second time, by the way, she's parted company with her 0:20:13.040 --> 0:20:17.120 right wing male counterparts. So this is a positive sign. 0:20:17.160 --> 0:20:20.040 If there's any silver lining in this case, it's that 0:20:20.400 --> 0:20:24.359 the hard right members of the court are driving amy 0:20:24.400 --> 0:20:29.040 Cony Barrett into the tender embrace of her female colleagues 0:20:29.080 --> 0:20:29.600 on the bench. 0:20:29.840 --> 0:20:31.040 That's what I see happening. 0:20:31.440 --> 0:20:35.160 Alito said, if the EPA does its work, our holding 0:20:35.160 --> 0:20:39.560 should have no adverse effect on water quality. How much 0:20:39.600 --> 0:20:43.280 harder will it be for the EPA to police water 0:20:43.440 --> 0:20:46.160 quality standards after this decision? 0:20:46.840 --> 0:20:47.040 Yeah? 0:20:47.080 --> 0:20:50.439 How many permits has Alito written? I was regional counsel 0:20:50.520 --> 0:20:53.159 to EPA in New England for several years. I know 0:20:53.280 --> 0:20:56.680 what it's like to write these permits and enforce these permits. 0:20:56.720 --> 0:20:59.400 I know what CSOs are all about and how difficult 0:20:59.400 --> 0:21:01.800 they are. And I can tell you this, it's going 0:21:01.880 --> 0:21:05.360 to take double the staff of EPA's Water Quality Division 0:21:05.600 --> 0:21:08.159 to do what Alito is demanding that they do. He 0:21:08.240 --> 0:21:11.320 has no idea how complicated it is to come up 0:21:11.359 --> 0:21:14.280 with a specific limit for every single pollutant that's in 0:21:14.320 --> 0:21:18.000 a wastewater discharge. Particularly where you're talking about cities. 0:21:18.080 --> 0:21:19.120 You know, each. 0:21:18.960 --> 0:21:21.120 City has a different way of managing. 0:21:20.680 --> 0:21:21.800 The waste that comes through. 0:21:22.119 --> 0:21:26.000 I mean, some cities have streets sweeping, right, some cities don't. 0:21:26.160 --> 0:21:28.560 So if something's on the street, think about what's on 0:21:28.600 --> 0:21:31.280 the street of an average American city, right, and it's 0:21:31.320 --> 0:21:35.280 going into the same system it's supposed to be treating sewage, 0:21:35.359 --> 0:21:37.040 and then it's going directly. 0:21:36.640 --> 0:21:37.240 Into the water. 0:21:37.560 --> 0:21:40.080 Are you kidding me? You think that's a simple thing 0:21:40.160 --> 0:21:43.160 to do. If EPA could have done that, it would 0:21:43.160 --> 0:21:46.479 have done that. I can remember sitting in meetings talking 0:21:46.520 --> 0:21:51.119 about the difficulty of enforcing standards that are vague, that 0:21:51.160 --> 0:21:54.959 are imprecise, and how difficult it is, you know, to 0:21:55.040 --> 0:21:58.520 convince a court that somebody's in violation of something when 0:21:58.520 --> 0:22:01.240 they don't know what the something is. So there's all 0:22:01.359 --> 0:22:05.200 kinds of discussion that goes on in the agency about 0:22:05.359 --> 0:22:09.280 how do you write permits so that people will know 0:22:09.359 --> 0:22:12.960 how to comply so we don't have to enforce them. 0:22:13.200 --> 0:22:17.160 We don't have the staff. There are tens of thousands 0:22:17.440 --> 0:22:20.280 of these permits that have to be issued every year. 0:22:20.640 --> 0:22:23.840 There's no way that you can write a permit and 0:22:24.040 --> 0:22:26.600 enforce it unless you have done the very best you 0:22:26.720 --> 0:22:30.439 can to be as specific as you can. So what 0:22:30.600 --> 0:22:33.560 he glibly says, all all EBA has to do is 0:22:33.600 --> 0:22:36.600 to do his job. He doesn't know what he's talking about. 0:22:36.960 --> 0:22:41.760 The Supreme Court has rained in pollution control efforts. What 0:22:41.800 --> 0:22:43.480 does this decision indicate? 0:22:43.960 --> 0:22:48.200 Yeah, it indicates that this court, at least the conservative 0:22:48.760 --> 0:22:54.200 majority of this court, is outright hostile to environmental law 0:22:54.240 --> 0:22:57.440 and regulation. That's the only way I can read what's 0:22:57.480 --> 0:22:59.920 going on. Not only do they not want to defer 0:23:00.920 --> 0:23:06.160 to the agency, they want to become the agency. They 0:23:06.200 --> 0:23:09.840 want to dictate to the agency how to do their job, 0:23:10.200 --> 0:23:13.680 as if they knew how to do that job. It's 0:23:13.680 --> 0:23:17.880 at the Congress to decide how agencies should do their job. 0:23:18.160 --> 0:23:21.520