Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: President Donald Trump is zero to two at the Supreme
Speaker 2: Court in his second term. The Court rejected his request
Speaker 2: to toss a judge's order that requires the quick disbursement
Speaker 2: of as much as two billion dollars owed to contractors
Speaker 2: for already completed work. The justices were divided five to four,
Speaker 2: with the Chief Justice and Justice Amy Cony Barrett joining
Speaker 2: the three liberals in the majority. And joining me is
Speaker 2: Bloomberg News Supreme Court reporter Greg Store Greg tell us
Speaker 2: about this dispute.
Speaker 3: So this all started with the administration putting a broad
Speaker 3: freeze on foreign aid and a judge putting a temporary
Speaker 3: restraining order on that broad freeze. And where we are
Speaker 3: now is that the judge said, Hey, despite the fact
Speaker 3: that I put that freeze on hold, it's still happening.
Speaker 3: So in a follow up order, this judge, Judge all Lee, said,
Speaker 3: I'm going to require the administration to make payments of
Speaker 3: anything that was owed as of February thirteenth, and you
Speaker 3: have thirty six hours to do it. And so what
Speaker 3: the Supreme Court case was about was the Trump administration saying, hey,
Speaker 3: put that compliance order on hold because we can't actually
Speaker 3: comply that quickly, and the judge overstepped his authority by
Speaker 3: ordering us to make these payments.
Speaker 2: They said they couldn't do it that quickly, But this
Speaker 2: was money that was supposed to be paid before.
Speaker 4: Right.
Speaker 2: Does that make sense that they said they couldn't do
Speaker 2: it that quickly. Don't they have it on hand?
Speaker 3: It's certainly hard to tell, and based on the court record,
Speaker 3: it's not clear what exactly is going on. We know
Speaker 3: that this is happening at the same time that huge
Speaker 3: numbers of USAID, the agency that funds most of this staffers,
Speaker 3: have been laid off or furloughed, and so you know,
Speaker 3: it may be at least in part that they're aren't
Speaker 3: people there who can do this sort of stuff the
Speaker 3: way they used to. But yes, your underlying question is
Speaker 3: aren't these all payments that under the normal course, would
Speaker 3: have been made by now, or at least aren't most
Speaker 3: of them? And the answer is yes. So one might
Speaker 3: have imagined that there was a mechanism for actually paying
Speaker 3: these things.
Speaker 2: So you had two conservatives, the Chief Justice and Justice
Speaker 2: Amy Coney Barrett, joining with the three liberals. What did
Speaker 2: they decide.
Speaker 3: Yeah. So again, this was the Trump administration asking the
Speaker 3: Supreme Court to put this compliance order, this order to
Speaker 3: pay as much as two billion dollars on hold, and
Speaker 3: Chief Justice Roberts, Justice Barrett joined the Court's three liberal
Speaker 3: justices to say, no, we're not going to put that
Speaker 3: order on hold. Now, there's a twist to this, which
Speaker 3: is that the order was originally put in place last week,
Speaker 3: on Tuesday of last week, and Chief Justice Roberts had
Speaker 3: temporarily put it on hold, which means that the deadline
Speaker 3: for actually make these payments has already passed. The original
Speaker 3: deadline was a week ago today, and so it's not
Speaker 3: clear exactly what happens next. Obviously, since that deadline has passed,
Speaker 3: the administration can't meet it. The Supreme Court did suggest
Speaker 3: that the district Judge juj A. Lee should clarify his
Speaker 3: order and take into account the feasibility of meeting deadlines.
Speaker 3: So probably the next step involves him. But the order
Speaker 3: from the court from the Supreme Court today was a
Speaker 3: little bit ambiguous on exactly how this is supposed to work.
Speaker 2: Four Conservatives dissented, Justices Clarence Thomas, Samuel Alito, Neil Gorsich
Speaker 2: and Brett Kavanaugh. Justice Alito said he was stunned by
Speaker 2: the majority's decision, and he wrote an eight page descent
Speaker 2: to the majority's one paragraph order.
Speaker 3: Well, his problem was, he said that the district judge
Speaker 3: way overstepped his authority. He called it. Justice Alito called
Speaker 3: it judicial hubris, and he said the court was now
Speaker 3: allowing that, rewarding that and as Leader put it, quote,
Speaker 3: it imposes a two billion dollar penalty on American taxpayers.
Speaker 3: To say that this was a strongly worded dissent would
Speaker 3: be an understatement. Essentially, he said that he thought the
Speaker 3: administration had a really strong argument that the groups could
Speaker 3: not recoup this money, could not force these payments, at
Speaker 3: least in the context of this lawsuit. He talked about
Speaker 3: sovereign immunity, He talked about the court's jurisdiction, and he
Speaker 3: said that because of that, he would have kept a
Speaker 3: pause on this lower court order and maybe even granted
Speaker 3: review of the administration's arguments, granted cert in the case.
Speaker 3: But he certainly would not have let this lower court
Speaker 3: order be reinstated and essentially forced the administration to make
Speaker 3: these payments.
Speaker 2: Did the administration appeal the judge's order itself, or did
Speaker 2: it appeal the compliance timeline for the order.
Speaker 3: The administration appealed only the compliance timeline. It did not
Speaker 3: challenge the original temporary restraining order that lifted the freeze
Speaker 3: that have been put in place. And part of the
Speaker 3: reason for that is that there are real questions about
Speaker 3: whether a t RO can be appealed at all. Normally,
Speaker 3: the answer is no, it can't be appealed, and the
Speaker 3: administration in another case, has been trying to sort of
Speaker 3: carve out an exception to that general principle for cases
Speaker 3: involving the power of the executive branch. But the administration
Speaker 3: argued that this compliance order is not just a temporary
Speaker 3: restraining order that keeps the status quo in place, but
Speaker 3: it's actually an injunction that forces them to do something, namely,
Speaker 3: pay a lot of money. And so they were arguing
Speaker 3: that is something where the Supreme Court can get involved
Speaker 3: right away, well less than.
Speaker 2: Two months into Trump's second term, and this is the
Speaker 2: second time the administration has gone to the court, and
Speaker 2: not in the ordinary course appealing an appellate court's decision,
Speaker 2: but on an emergency basis. Do you think that was
Speaker 2: part of the reason that those five justices said no.
Speaker 3: You know, it's hard to say too much about the
Speaker 3: motivations of the five because the order itself is only
Speaker 3: a page along and really doesn't have any reasoning. So
Speaker 3: I'm speculating to some degree here. It is certainly unusual
Speaker 3: for the Supreme Court to get involved in any litigation
Speaker 3: this quickly, and that is probably part of the hesitance.
Speaker 3: The other part was very likely that normally a district judge,
Speaker 3: if he or she enters a temporary restraining order or
Speaker 3: any other order, has some power to enforce that if
Speaker 3: a party's not complying with it, And had the Supreme
Speaker 3: Court granted the Trump administration request, it would have done
Speaker 3: a little cutting out of the legs of a federal
Speaker 3: district judges when they see an order not being complied
Speaker 3: with when they conclude that a party, in particularly this administration,
Speaker 3: might not be applying with an order. So I would imagine,
Speaker 3: again I'm speculating a little bit here, but I would
Speaker 3: very much imagine that was in the back of the
Speaker 3: minds of many of the justices in the majority.
Speaker 2: So this is the second time that the Supreme Court
Speaker 2: has turned the Trump administration away less than two weeks ago,
Speaker 2: they refuse to let Trump fire the head of an agency.
Speaker 2: Does this indicate that the court is going to provide
Speaker 2: some guardrails for Trump or is it too soon to tell?
Speaker 3: I would say it's too soon to tell. It gives
Speaker 3: a little suggestion that they might be willing to keeping
Speaker 3: in mind that it's only five of the justices for
Speaker 3: them dissented in very strong terms. The earlier case, which
Speaker 3: is one that almost certainly will be back probably in
Speaker 3: the next to a week or two, involved the President
Speaker 3: trying to fire somebody. This guy who is known as
Speaker 3: the Special Council Hampton Dellinger, is basically the head of
Speaker 3: an office that protects whistleblowers, and the Court essentially kicked
Speaker 3: the can down the road a little bit, which let
Speaker 3: Hampton Dellinger stay in his job for now, but left
Speaker 3: open whether ultimately the administration will be able to fire him.
Speaker 2: Gorsachen Alido also dissented in that case, the Dellinger case.
Speaker 2: Do you think that indicates that they are two pretty
Speaker 2: reliable votes for Donald Trump in every case?
Speaker 3: I don't want to say anything too broad because these
Speaker 3: are individual cases, but certainly, if I'm the Trump administration,
Speaker 3: if I'm Donald Trump. I feel very good about Sam
Speaker 3: Alito and Neil Gorsich in most of the cases that
Speaker 3: are likely to come before the court. Probably also Clarence Thomas, who,
Speaker 3: even though he wasn't part of that original dissent, has
Speaker 3: over the years strongly suggested that he is sympathetic to
Speaker 3: what Donald Trump is trying to do. And then, you know,
Speaker 3: as with so many cases at the Supreme Court, these
Speaker 3: fights are probably going to depend on the sort of
Speaker 3: center right justices of John Roberts, Amy Cony Barrett, and
Speaker 3: Brett Kavanaugh to determine which side ultimately wins.
Speaker 2: Yeah, I didn't know whether to add in Clarence Thomas there,
Speaker 2: because he could have had a lot of different reasons
Speaker 2: for agreeing with the major already on the Dellinger case. So,
Speaker 2: but that did surprise me that he was with the
Speaker 2: majority there.
Speaker 3: I have a theory, but it's just a theory, which
Speaker 3: is that he basically took one for the team. Did
Speaker 3: Roberts a favor because if he had joined the descent
Speaker 3: there would not have been five justices on board for anything,
Speaker 3: you know, this notion of holding it in the bands,
Speaker 3: and so by not dissenting, he or at least not
Speaker 3: dissenting publicly. He you know, let the court issue some
Speaker 3: sort of order. So that's my theory.
Speaker 2: I think it's a good theory, Greg, because there's often
Speaker 2: horse trading going on behind the scenes. Do these two
Speaker 2: Trump appeals to the Supreme Court in less than two
Speaker 2: months tell us that you and the Supreme Court are
Speaker 2: going to be very busy in the next four years.
Speaker 2: I mean, one hundred cases have already been filed over
Speaker 2: his executive orders and the like.
Speaker 3: Absolutely. I think both these two cases we've talked about,
Speaker 3: the foreign aid funding and the Special Council case are
Speaker 3: likely to come back to the Supreme Court pretty quickly.
Speaker 3: And then we have all the one hundred other cases
Speaker 3: involving things like birthright citizenship, the mass firing of employees,
Speaker 3: funding for other parts of the government, and very very
Speaker 3: likely these will get up to the Supreme Court fairly quickly.
Speaker 3: That being said, one possible effect of the Supreme Court's
Speaker 3: ordered today might be that it sends a bit of
Speaker 3: a message to the Trump administration, think carefully before you
Speaker 3: bring stuff to us, because we're not just going to
Speaker 3: be a rubber stamp for you. So it might have
Speaker 3: some effect in terms of reducing the number of applications
Speaker 3: that the Trump administration brings to the Supreme Court.
Speaker 2: I'll bet the justices are hoping that's true. Thanks so much, Greg.
Speaker 2: That's Bloomberg Supreme Court reporter Greg Store coming up next
Speaker 2: on the Bloomberg Law Show. The Supreme Court makes it
Speaker 2: harder for the EPA to police sewage discharges in another
Speaker 2: loss for the agency at the Court, and later in
Speaker 2: the show, the justices confront the question of what to
Speaker 2: do with the growing pile of nuclear waste. Another setback
Speaker 2: for the EPA at the Supreme Court, with the justices
Speaker 2: ruling for San Francisco in a case about the discharge
Speaker 2: of raw sewage that sometimes occurs during heavy rains, a
Speaker 2: ruling that will make it harder for environmental regulators to
Speaker 2: limit water pollution. In a five to four vote, the
Speaker 2: Court's conservative majority ruled that the EPA overstepped its authority
Speaker 2: under the Clean Water Act with water pollution permits that
Speaker 2: contain vague requirements for maintaining water quality. The decision is
Speaker 2: the latest in which the conservative justices have rained in
Speaker 2: pollution control efforts. But one conservative justice, Amy Coney Barrett,
Speaker 2: joined the court's three liberals in descent. My guest is
Speaker 2: environmental law expert Pat Parento, a professor at the Vermont
Speaker 2: Law and Grad you at School. Pat Justice Samuel Alito
Speaker 2: wrote the majority opinion. Why did the five Conservatives rule
Speaker 2: against the EPA?
Speaker 1: So Alito wants to rewrite the Clean Water Act, No surprise,
Speaker 1: he doesn't like the way Congress set it up, and
Speaker 1: so he's instructed EPA that when they're dealing with a
Speaker 1: problem like combined sewer overflows, where you have a mixture
Speaker 1: of pollutants. Right, if you think about this, a CSO
Speaker 1: diverts sewage from the treatment plant directly in this case,
Speaker 1: to the ocean, but it also collects all the storm
Speaker 1: water from the urban surface. So you have this literally
Speaker 1: toxic soup of dozens of different kinds of pollutants. So
Speaker 1: EPA's approach to this kind of a problem is to say,
Speaker 1: we have nine best management practices for you to use
Speaker 1: to limit the number of times you're bypassing your treatment plan.
Speaker 4: Okay.
Speaker 1: Alito doesn't talk about any of this. He makes a
Speaker 1: brief reference to EPA's policy.
Speaker 4: Approach to CSOs.
Speaker 1: What he doesn't say is that Congress codified that policy
Speaker 1: in nineteen eighty two and put it into the Clean
Speaker 1: Water Act. EPA wasn't making this up. EPA was following
Speaker 1: what it's done for a very long time, decades. But
Speaker 1: Alito doesn't like it.
Speaker 4: He says it's too vague.
Speaker 1: He says, what you have to do, EPA is come
Speaker 1: up with specific limits for each and every pollutant that
Speaker 1: the City of San Francisco is responsible for managing. That's
Speaker 1: an enormous undertaking, right Just think about all the science,
Speaker 1: all of the analysis that you'd have to do to
Speaker 1: develop numerical limits for all of these different pollutants. It's
Speaker 1: not workable. It's something EPA would do if it could,
Speaker 1: but it can't. So it does the next best thing.
Speaker 4: It says to San.
Speaker 1: Francisco, here are a whole bunch. There's over one hundred
Speaker 1: pages in this permit, one hundred pages of detail. Here
Speaker 1: are the things that we know we can set technology
Speaker 1: standards for. But you still have to meet water quality standards.
Speaker 1: You still have to protect beneficial uses of water. What
Speaker 1: are those swimming? What happens when you have a cso
Speaker 1: bypass sewage raw sewage? As Justice Barrett said in her
Speaker 1: dissent toilet paper goes into the ocean where people are swimming,
Speaker 1: and you can imagine what's with the toilet paper. So
Speaker 1: that's the situation that EPA has inherited and confronted and
Speaker 1: historically has dealt with. Alito says, no, that's no good
Speaker 1: going forward, EPA. You have to come up with specific
Speaker 1: limits for each and every pollutant and tell cities like
Speaker 1: San Francisco and New York and Boston and even Burlington,
Speaker 1: Vermont as CSOs. Right, you have to tell all of
Speaker 1: these municipalities.
Speaker 4: Exactly what they have to do.
Speaker 1: To comply with water quality standards. It's an impossible burden
Speaker 1: for the EPA, certainly given what Trump is proposing to
Speaker 1: do to EPA, which is to gut it, to hollow
Speaker 1: it out, so it won't have the staff, it won't
Speaker 1: have the budget, it won't be able to do what
Speaker 1: Alito has ordered it to do.
Speaker 2: Pat We've talked before about how unusual it was that
Speaker 2: San Francisco, a liberal city, was fighting the EPA over
Speaker 2: water pollution. Why did San Francisco have such trouble with
Speaker 2: these regulations?
Speaker 1: Cost? The fix for these CSOs is incredibly expensive, billions
Speaker 1: of dollars, literally, billions okay, But you know, if you
Speaker 1: don't want to comply with the law because you can't
Speaker 1: because you're too poor or you can't raise the money
Speaker 1: to do it, you need to go to Congress and
Speaker 1: get an exemption. But you can't just declare it's too
Speaker 1: expensive to comply with the Clean Water Act. But that's
Speaker 1: what's driving San Francisco. It's almost bankrupt. It has enormous
Speaker 1: financial problems. It has a hollowed out downtown. It's a
Speaker 1: very sad thing to see San Francisco one of the
Speaker 1: most beautiful cities on earth when it was vibrant, you know,
Speaker 1: and flourishing, not now. So that's the basic problem. Other
Speaker 1: cities have done this. I was involved in one of
Speaker 1: the earliest cases, suing the city of Portland, Oregon, for
Speaker 1: its CSO problem. It has nine of these massive tunnels
Speaker 1: or pipes that discharge to the Willamette River raw sewage.
Speaker 1: We sued them in the early nineteen ninety We wanted
Speaker 1: a victory in the Ninth Circuit. And what did Portland do?
Speaker 1: It fought us for a while, but what did it do?
Speaker 1: Once the Ninth Circuit said you have to do something
Speaker 1: about this, It decided to build a whole new treatment plant.
Speaker 1: It cost a billion dollars, but they got rid of
Speaker 1: the nine CSO pipes that were contaminating the Willamette River.
Speaker 1: The city of Chicago had the similar problem. What did
Speaker 1: they do They built deep underground tunnels to hold the
Speaker 1: storm water so it didn't overwhelm the treatment plant. Those
Speaker 1: are the kinds of choices that you face. Separate the
Speaker 1: storm water from the sewage water, build more treatment facilities,
Speaker 1: figure out something to do with these CSOs. But one
Speaker 1: thing you can't do is continue to contaminate public water.
Speaker 4: That's what the law requires.
Speaker 2: So, as you mentioned, Justice Amy Coney Barrett, a conservative,
Speaker 2: sided with the courts three liberal justices. I don't want
Speaker 2: to say it was the women against the men, but
Speaker 2: that's what it turned out to be. Tell us about
Speaker 2: her descent.
Speaker 1: Amy Komy Barrett nailed it. I mean, what she did
Speaker 1: was really remarkable. She actually read the statute, you know,
Speaker 1: and she said, no, I'm looking at the statute. And
Speaker 1: the statute authorizes EPA to not only set these technology
Speaker 1: based what are called affluent limitation standards, but Congress deliberately
Speaker 1: thought about, well what if they don't work? What if
Speaker 1: they don't actually accomplish the goal of protecting public water,
Speaker 1: meeting water quality standards, protecting beneficial uses fishing, swimming, drinking water,
Speaker 1: and all the rest of it. So she said, so
Speaker 1: Congress thoughtfully said, well, as a backup, you can include
Speaker 1: in these requirements other limitations necessary to protect water quality.
Speaker 1: And she said, that's exactly what EPA is doing. It's
Speaker 1: like going to a doctor and a doctor says your
Speaker 1: blood pressure's high. The doctor's not going to necessarily tell
Speaker 1: you what you have to eat to your blood pressure.
Speaker 1: Now you might, you might suggest less salt, you know,
Speaker 1: but he's basically going to say, your illness here is
Speaker 1: high blood pressure. Do something about it. It's something I
Speaker 1: happen to know something about, right. So that's what she
Speaker 1: analogized the Clean Water Act to. It was EPA saying
Speaker 1: you must meet these water quality standards. And by the way,
Speaker 1: where do water quality.
Speaker 4: Standards come from?
Speaker 1: They come from the state. They come from the state
Speaker 1: of California. So these are standards that California itself has
Speaker 1: adopted to protect its water and to protect its people
Speaker 1: because these are public health threats.
Speaker 4: And so she said, you know, you've.
Speaker 1: Signed up for protecting these uses of water, now figure
Speaker 1: out how to do it. And she said, and if
Speaker 1: EPA overstepped by requiring you to do something that, if
Speaker 1: she put it as arbitrary or irrational, the remedy for
Speaker 1: that is to go to court and challenge EPA's requirement
Speaker 1: when EPA imposes it. The remedy isn't to wait until
Speaker 1: you violated and then come into court crying and complaining
Speaker 1: about we really can't comply with the permit we signed.
Speaker 1: So that was amy Cony Barrett's approach. This is the
Speaker 1: second time, by the way, she's parted company with her
Speaker 1: right wing male counterparts. So this is a positive sign.
Speaker 1: If there's any silver lining in this case, it's that
Speaker 1: the hard right members of the court are driving amy
Speaker 1: Cony Barrett into the tender embrace of her female colleagues
Speaker 1: on the bench.
Speaker 4: That's what I see happening.
Speaker 2: Alito said, if the EPA does its work, our holding
Speaker 2: should have no adverse effect on water quality. How much
Speaker 2: harder will it be for the EPA to police water
Speaker 2: quality standards after this decision?
Speaker 4: Yeah?
Speaker 1: How many permits has Alito written? I was regional counsel
Speaker 1: to EPA in New England for several years. I know
Speaker 1: what it's like to write these permits and enforce these permits.
Speaker 1: I know what CSOs are all about and how difficult
Speaker 1: they are. And I can tell you this, it's going
Speaker 1: to take double the staff of EPA's Water Quality Division
Speaker 1: to do what Alito is demanding that they do. He
Speaker 1: has no idea how complicated it is to come up
Speaker 1: with a specific limit for every single pollutant that's in
Speaker 1: a wastewater discharge. Particularly where you're talking about cities.
Speaker 4: You know, each.
Speaker 1: City has a different way of managing.
Speaker 4: The waste that comes through.
Speaker 1: I mean, some cities have streets sweeping, right, some cities don't.
Speaker 1: So if something's on the street, think about what's on
Speaker 1: the street of an average American city, right, and it's
Speaker 1: going into the same system it's supposed to be treating sewage,
Speaker 1: and then it's going directly.
Speaker 4: Into the water.
Speaker 1: Are you kidding me? You think that's a simple thing
Speaker 1: to do. If EPA could have done that, it would
Speaker 1: have done that. I can remember sitting in meetings talking
Speaker 1: about the difficulty of enforcing standards that are vague, that
Speaker 1: are imprecise, and how difficult it is, you know, to
Speaker 1: convince a court that somebody's in violation of something when
Speaker 1: they don't know what the something is. So there's all
Speaker 1: kinds of discussion that goes on in the agency about
Speaker 1: how do you write permits so that people will know
Speaker 1: how to comply so we don't have to enforce them.
Speaker 1: We don't have the staff. There are tens of thousands
Speaker 1: of these permits that have to be issued every year.
Speaker 1: There's no way that you can write a permit and
Speaker 1: enforce it unless you have done the very best you
Speaker 1: can to be as specific as you can. So what
Speaker 1: he glibly says, all all EBA has to do is
Speaker 1: to do his job. He doesn't know what he's talking about.
Speaker 2: The Supreme Court has rained in pollution control efforts. What
Speaker 2: does this decision indicate?
Speaker 1: Yeah, it indicates that this court, at least the conservative
Speaker 1: majority of this court, is outright hostile to environmental law
Speaker 1: and regulation. That's the only way I can read what's
Speaker 1: going on. Not only do they not want to defer
Speaker 1: to the agency, they want to become the agency. They
Speaker 1: want to dictate to the agency how to do their job,
Speaker 1: as if they knew how to do that job. It's
Speaker 1: at the Congress to decide how agencies should do their job.
Speaker 1: And we know if Congress is unhappy with the way
Speaker 1: EPA or any other agency is doing his job, it
Speaker 1: has plenty of opportunity to step in and correct it
Speaker 1: and punish the agency if it needs, if it feels
Speaker 1: like it needs to do that, or hurt them through
Speaker 1: the budget process, you know, demand that they do things
Speaker 1: a certain way. That's what Congress is there to do.
Speaker 1: It's not up to the Court to decide how EPA
Speaker 1: should do its job.
Speaker 4: That's what's going on here, all right, Stay.
Speaker 2: With me, pat coming up next. Today, the Justice has
Speaker 2: confronted the question of what to do with the growing
Speaker 2: pile of nuclear waste. This is bloomberg at oral arguments. Today,
Speaker 2: the Supreme Court confronted the national headache of what to
Speaker 2: do the growing pile of nuclear waste. The Justice is
Speaker 2: wrestled with whether to restart plans to temporarily store nuclear
Speaker 2: waste at sites in rural Texas and New Mexico. The
Speaker 2: justices appeared divided over whether Texas and companies that own
Speaker 2: land in the oil rich Permium Basin had the right
Speaker 2: to challenge a federal plan to let as much as
Speaker 2: forty thousand tons of highly radioactive waste be temporarily stored
Speaker 2: at a privately owned off site facility. I've been talking
Speaker 2: to environmental law expert Pat Parento, a professor at the
Speaker 2: Vermont Law and Graduate School. Right now, where does the
Speaker 2: US store its nuclear waste?
Speaker 4: It doesn't, is the answer.
Speaker 1: All of the nuclear waste at nuclear power plants. Now
Speaker 1: this is in contrast to, of course, weapons grade nuclear waste.
Speaker 4: That's a different issue.
Speaker 1: But the nuclear waste that's generated by nuclear power plants
Speaker 1: is all sitting at the nuclear power plants all over
Speaker 1: the country. They are stored either in casts, concrete casts,
Speaker 1: or in most cases in underground vessels that have water.
Speaker 1: You better hope it has water, because you know, the
Speaker 1: half life of this nuclear waste is measured in hundreds
Speaker 1: or thousands of years. So you've got to maintain the
Speaker 1: integrity of these containment vessels and keep them cool enough
Speaker 1: because of course, you know, nuclear waste is very hot
Speaker 1: and it likes to get out of confinement. But that's
Speaker 1: the way we are quote managing nuclear waste. It's at
Speaker 1: every individual power plant. The proposal was, of course, to
Speaker 1: build a national repository at Yucca Mountain in Utah, and
Speaker 1: we all know what happened. To that. It's never happened.
Speaker 1: As Gorss put it in the oral argument today, it's
Speaker 1: just a hole in the ground. And so now they're
Speaker 1: talking about building a quote interim story facility, one in
Speaker 1: Texas and one in New Mexico and ship all of
Speaker 1: this waste by rail or perhaps truck, God forbid, across
Speaker 1: the country from all of these nuclear power plants to
Speaker 1: this location in Texas where it's supposed to be temporary.
Speaker 4: Well, we know what will happen if.
Speaker 1: They actually put the waste into this facility. This is
Speaker 1: a private facility, by the way, it's not a governmental entity,
Speaker 1: which what yucka mountain would be. We know that once
Speaker 1: it gets there, it's not leaving. And Alito actually raised
Speaker 1: that point today in the oral argument. So that's the
Speaker 1: nature of this problem. It's a fiendishly complicated problem. It's
Speaker 1: one we haven't been able to solve. It's one that
Speaker 1: you have to wonder whether we'll ever be able to solve.
Speaker 2: There were two questions at issue in the case. One
Speaker 2: was whether the Nuclear Regulatory Commission has the power to
Speaker 2: license such a temporary storage site. And as you mentioned,
Speaker 2: several of the justices were more than dubious that this
Speaker 2: would be temporary. Where do you think that justices stood
Speaker 2: on that question?
Speaker 1: Looked like it was split.
Speaker 4: It's always hard to read.
Speaker 1: But you know, this is one of those weird issues
Speaker 1: where it's not it's not EPA, it's the Nuclear Regulatory Commission.
Speaker 1: You can hardly say that the Nuclear Regulatory Commission is
Speaker 1: hostile to industry. So it's not really one of those
Speaker 1: industry versus the regulatory body so much as it's the
Speaker 1: interests around the location of this proposed facility in Texas, which,
Speaker 1: guess what, it happens to be in the middle of
Speaker 1: the Permian Basin, one of the largest oil and gas
Speaker 1: deposits in the country. So the opposition to this facility
Speaker 1: ain't coming from the environmentalists, although there may be some
Speaker 1: environmental concerns about it. I'm sure there are, But the
Speaker 1: major challenge is coming from the Governor Abbott of Texas.
Speaker 1: Why because industries don't want a nuclear facility in the
Speaker 1: middle of their oil and gas operations it might impen
Speaker 1: on what they're producing.
Speaker 2: I mean, does any state want a nuclear you know,
Speaker 2: storage site in the state.
Speaker 4: That's a hard one. Apparently not.
Speaker 1: Although New Mexico has not been entirely clear about that.
Speaker 1: They're certainly concerned about the nature of the facility that's
Speaker 1: being proposed at Holltech is the name of it, And
Speaker 1: there's a lot of opposition from tribes and from what
Speaker 1: you would call environmental justice communities because they're saying, hey,
Speaker 1: if you think this stuff isn't safe enough where you
Speaker 1: have it, now, why are you bringing it to us?
Speaker 4: Right?
Speaker 1: So, there are some legitimate questions about moving this waste
Speaker 1: around and storing it in quote interiom, facilities which are
Speaker 1: not intended to be permanent. As I say, this is
Speaker 1: talking about perpetual care with this stuff. Perpetual care. As
Speaker 1: one critic put it, it's longer than the Catholic Church
Speaker 1: has been around, right, So you know, it's no wonder
Speaker 1: that people have serious concerns about why did you pick
Speaker 1: us as the place to put all your high level
Speaker 1: radioactive waste, dangerous waste. So that's a problem.
Speaker 2: The second issue was whether Texas and the private plaintiffs
Speaker 2: can seek intervention in the federal courts because they failed
Speaker 2: to intervene at an earlier stage, and the court's liberals
Speaker 2: seemed sympathetic to that argument.
Speaker 1: Yeah, yeah, and Barrett I think would probably be of
Speaker 1: a similar mind to the three quote liberals on the court.
Speaker 1: This is a kind of a catch twenty two. Procedural
Speaker 1: issues often are right. So here's the way this gets
Speaker 1: set up. The challengers, the petitioners in the case before
Speaker 1: the Supreme Court tried to intervene in the NRC licensing
Speaker 1: and were denied intervention, and they didn't challenge that. And
Speaker 1: so now when it comes to going to court to
Speaker 1: challenge the license that NRC issued, there's a.
Speaker 4: Federal statute that says if.
Speaker 1: You didn't object, if you didn't intervene, you can't challenge
Speaker 1: the license. That's where the catch twenty two comes in.
Speaker 4: But it's certainly.
Speaker 1: True that if you didn't intervene, you can't challenge the license,
Speaker 1: and if you were denied intervention, as they were, your
Speaker 1: remedy should have been challenge. The denial of intervention. Seems
Speaker 1: to me that unless the more conservative members of the
Speaker 1: Court feel that somehow the opponents of this facility align
Speaker 1: more with their ideological view of the world, unless they
Speaker 1: see the case that way, I think they're going to
Speaker 1: agree that you're out of luck.
Speaker 4: Challengers.
Speaker 1: You didn't intervene, you weren't able to intervene. You didn't
Speaker 1: challenge that you're sool in this case.
Speaker 2: What's interesting about this case is that the administration is
Speaker 2: staying on the side that the Biden administration took in
Speaker 2: support of the Nuclear Regulatory Commission and against Texas, and
Speaker 2: Texas Governor Greg Abbott is a big ally of Trump's.
Speaker 4: Odd dead fellows for sure.
Speaker 1: This is the dilemma of nuclear power and nuclear waste.
Speaker 4: What to do with it?
Speaker 1: Nobody wants it, but leaving it where it is. Most
Speaker 1: of these plants have been shut down in my home
Speaker 1: state of Vermont. Vermont Yankee has been shut down now
Speaker 1: for almost ten years, Connecticut Yankee shut down, Main Yankee shutdown.
Speaker 1: You know, nuclear power plants have been shutting down left
Speaker 1: and right because natural gas has you know, out competed
Speaker 1: them in terms of the costs. So what are you
Speaker 1: going to do when you don't have a national repository,
Speaker 1: a permanent solution, and you have all of these different
Speaker 1: facilities around the country that have been shut down. I mean,
Speaker 1: it is a bad situation. So that's why Biden sided
Speaker 1: with the NRC in saying, we need a better solution
Speaker 1: than we have Until we find a permanent one. If
Speaker 1: we ever do we need a better way of managing
Speaker 1: this waste than what we're currently doing. That's the best
Speaker 1: way you can understand this situation. There's no good answer
Speaker 1: to this. You know, there were warnings about this. I
Speaker 1: can remember when I first went to George Washington Law
Speaker 1: School to get my LLM and environmental law. I took
Speaker 1: a course from James Ramy, who was chair of the
Speaker 1: Atomic Energy Commission, who told me the nuclear waste.
Speaker 4: Problem was a PR.
Speaker 1: Problem, wasn't a technical problem at all.
Speaker 4: You know.
Speaker 1: That's I hate to say it, but that's now forty
Speaker 1: five years ago. Okay, Well, it isn't a PR problem.
Speaker 1: It's an impracticable problem that we haven't figured out how
Speaker 1: to solve.
Speaker 2: So pat if the court turns them away on this
Speaker 2: procedural ground, is that the end of the question, then
Speaker 2: I'm not sure.
Speaker 4: I'm not sure.
Speaker 1: You know, as Yogi Berra said, it ain't over.
Speaker 4: Until it's over.
Speaker 1: There's probably some other ways of challenging you know, what's
Speaker 1: gonna happen with this facility. There may be ways of challenging,
Speaker 1: how are you going to move this waste across the
Speaker 1: country safely? And when it gets there, how exactly are
Speaker 1: you going to unload and place it safely into containment.
Speaker 1: There's probably going to be other challenges, but I can't
Speaker 1: predict either what they are or how successful they'll be.
Speaker 2: It's probably a long way to go before this facility
Speaker 2: gets authorization. If ever, Thanks so much, Pat. As always,
Speaker 2: that's Professor Pat Parento of the Vermont Law and Graduate School.
Speaker 2: And that's it for this edition of The Bloomberg Law Show.
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