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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: This case has always been about shocking levels of corruption,

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Speaker 2: hundreds of thousands of dollars in bribes in the form

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Speaker 2: of cash, gold bars, a Mercedes Benz. This wasn't politics

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Speaker 2: as usual, this was politics for profit. And now that

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Speaker 2: a jury has convicted Bob Menendez, his years of selling

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Speaker 2: his office of the highest bidder have finally come to

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Speaker 2: an end.

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Speaker 3: Manhattan US Attorney Damian Williams basically summed up the prosecution's

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Speaker 3: case against Senator Bob Menendez after a jury found the

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Speaker 3: once powerful New Jersey Democrat guilty of bribery, extortion, and

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Speaker 3: acting as a foreign agent of Egypt, convicting him on

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Speaker 3: all sixteen counts after a two month trial where prosecutors

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Speaker 3: said he put his power up for sale. Menendez continues

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Speaker 3: to maintain his innocence and says he expects to succeed

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Speaker 3: on a I.

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Speaker 4: Have never violated my public oath. I have never been

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Speaker 4: anything but a patriot of my country and for my country.

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Speaker 4: I have never ever been a foreign agent. And the

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Speaker 4: decision righted by the jury today would put at risk

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Speaker 4: every member of the United States Senate in terms of

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Speaker 4: what they think a foreign agent would be.

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Speaker 3: Joining me is Bloomberg Legal reporter David Voriakiz, who covered

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Speaker 3: the trial. David tell us about the prosecution's case.

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Speaker 1: Senator Bob Menendez was accused in a sweeping corruption case

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Speaker 1: of bribery, extortion, acting as an agent of Egypt, and

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Speaker 1: obstruction of justice. The case centered around some explosive evidence

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Speaker 1: that the FBI sees two years ago at his home

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Speaker 1: in suburban New Jersey, and that was thirteen gold bars,

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Speaker 1: nearly five hundred thousand dollars in cash, and a black

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Speaker 1: Mercedes Benz convertible that prosecutors said was the product of

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Speaker 1: a bribe scheme that Menendez and his wife, Nadine received

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Speaker 1: over the previous five years.

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Speaker 3: The prosecution had a lot of different kinds of evidence

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Speaker 3: against him. You mentioned the gold bars and the five

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Speaker 3: hundred thousand dollars in cash stashed around his house in closets, boots, jackets,

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Speaker 3: a safe, etc. An undercover FBI videotape, a witness who

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Speaker 3: flipped and testified against him. What was the strongest evidence

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Speaker 3: against him?

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Speaker 1: I think the strongest evidence would have to be the

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Speaker 1: cash in the gold bars, both of which prosecutors presented

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Speaker 1: in court so that the jurors could see what they

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Speaker 1: are talking about. There was also three different summary charts

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Speaker 1: that included thousands of lines of texts, emails, calls, meetings.

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Speaker 1: They had very meticulous and detailed chronogies, because this was

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Speaker 1: a subtle and discreete set of interlocking schemes that really

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Speaker 1: could only be understood in their totality, in which jurors

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Speaker 1: saw the timeline of a number of interactions and how

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Speaker 1: they fit together. And so it took time to spell

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Speaker 1: that out and for the picture to come into focus,

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Speaker 1: and that picture, by the end of the trial, the

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Speaker 1: prosecutor said, was an overwhelming case against Menendez and the

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Speaker 1: two businessmen tried with him, Will Hannah and Fred Davies David, Was.

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Speaker 3: There any specific evidence of him saying I'll do this

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Speaker 3: for you if you give me that you know, quid

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Speaker 3: pro quo.

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Speaker 1: There wasn't a great deal of quid pro quo evidence

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Speaker 1: that prosecutors put forward, but I would say there was

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Speaker 1: no specific mission, say on tape or to another witness,

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Speaker 1: in which Menendez said, yes, I know I'm committing the

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Speaker 1: crime of bribery. Essentially, prosecutors built their case through inference

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Speaker 1: in which they showed that right after Menendez, say, met

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Speaker 1: with the Attorney General of New Jersey on behalf of

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Speaker 1: a businessman, he then called that businessman, who then texted

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Speaker 1: someone else who said, I finally found peace. It's that

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Speaker 1: sort of stringing together of a collection of different discrete

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Speaker 1: pieces of evidence that lead to the clear inference that

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Speaker 1: Menendez was engaged in bribery schemes with his wife, Nadine.

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Speaker 3: Menendez blamed his wife, and he had the benefit of

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Speaker 3: being tried separately. She's going to be tried later, so

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Speaker 3: there wasn't an uncomfortable situation of point to the co

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Speaker 3: defendant and wife who's sitting next to you as the culprit.

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Speaker 3: How much evidence was there against his wife.

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Speaker 1: There was a lot of evidence pointing to Nadine as

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Speaker 1: a crucial go between who connected Menendez with the businessmen

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Speaker 1: who were on trial with him and with other people

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Speaker 1: less directly involved in the case. She also set up

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Speaker 1: meetings with Egyptian military people and intelligence officials, and according

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Speaker 1: to the government, collected gold bars and cash from Fred Davies,

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Speaker 1: one of the co defendants, and also had a crucial

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Speaker 1: connection and relationship with Will Hannah, who was the other

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Speaker 1: co defendant, and prosecutors said they were like brother and sister.

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Speaker 1: They were very close. And some of the most damning

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Speaker 1: evidence involved the Mercedes Benz that another business this man,

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Speaker 1: Jose Euribe, gave to her, essentially by handing her a

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Speaker 1: fifteen thousand dollars cash down payment in a diner parking

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Speaker 1: lot in New Jersey and then making monthly payments on

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Speaker 1: the car for two and a half years. There was

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Speaker 1: also evidence that will Hanna, the other defendant in this case,

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Speaker 1: gave her a no show job in which he paid

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Speaker 1: her ten thousand dollars a month for three months, and

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Speaker 1: he paid off her mortgage on her home in New

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Speaker 1: Jersey when she was in a great deal of financial distress.

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Speaker 4: You have to.

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Speaker 3: Tell the story about the bill that prosecutors used to

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Speaker 3: show that Menendez was the one in charge, not his wife.

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Speaker 1: There was a crucial meeting behind the Menendez house in

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Speaker 1: September of twenty nineteen at ten o'clock at night, in

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Speaker 1: which Jose Uibe, the operating businessman who pleaded guilty, said

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Speaker 1: that he came over and spoke to Bob Menendez on

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Speaker 1: the patio behind their house. And this was the night before,

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Speaker 1: Menendez was going to meet with the Attorney General of

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Speaker 1: New Jersey and make the case that state prosecutors should

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Speaker 1: drop their criminal investigation of someone who was close to Eurebe.

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Speaker 1: Jurors heard Eurebe talk about Menendez summoning his wife, Nadine

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Speaker 1: with a bell, and that she came out from inside

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Speaker 1: the house and delivered a piece of paper where Eurebe

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Speaker 1: wrote down the names of the people that he was

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Speaker 1: interested in. The bell became sort of a symbol of

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Speaker 1: whether Menendez really controlled Nadine or not, because the Menendez

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Speaker 1: defense was that Nadine was engaging in a lot of

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Speaker 1: corrupt acts behind Menendez's belt. At the prosecutors tried to

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Speaker 1: puncture that defense and say that he knew everything that

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Speaker 1: Nadine was doing in that at certain times, as in

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Speaker 1: the bell incident, she was sort of under his thumb.

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Speaker 3: Menendez is now the first member of Congress to be

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Speaker 3: convicted of being a public official acting as a foreign agent.

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Speaker 3: Was there any evidence that he compromised the national interests

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Speaker 3: of the United States?

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Speaker 1: There was an incident in which Menendez threw his wife

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Speaker 1: and then will Hannah passed along the number of people

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Speaker 1: working at the US Embassy in Cairo. Prosecutor said that

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Speaker 1: was sensitive information at the time and could have compromised

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Speaker 1: the people who work there and exposed them to potential

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Speaker 1: terrorist attacks. The defense said that that information had already

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Speaker 1: been made public in a government report years earlier, Butters

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Speaker 1: countered by saying that that was old information and the

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Speaker 1: current information was not public. So while they didn't actually

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Speaker 1: charge him with doing harm to US security interests, they

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Speaker 1: certainly suggested that that was a possibility. By Menendez passing

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Speaker 1: along how many people worked at the US Embassy in Cairo.

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Speaker 3: After the Verick, Menendez said the decision would put every

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Speaker 3: member of the Senate at risk in terms of what

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Speaker 3: it means to be a foreign agent. Do you know

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Speaker 3: what he meant by that.

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Speaker 1: Yes. Their argument was during the trial that he was

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Speaker 1: not engaged in being a foreign agent, that he didn't

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Speaker 1: have Egypt's interests at heart, that in fact, he only

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Speaker 1: had the United States interest in heart, and that as

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Speaker 1: chairman of the Senate Foreign Relations Committee, he was engaged

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Speaker 1: in diplomacy, not corruption, so that all of his interactions

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Speaker 1: with Egyptian military and intelligence officials were acts of diplomacy

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Speaker 1: and him exercising his power as chairman of that Foreign

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Speaker 1: Relations Committee. So I think what he's saying is that

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Speaker 1: if you find that what I did was corrupt and

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Speaker 1: acting as an agent of a foreign country, then it's

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Speaker 1: going to be the case for a bunch of other

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Speaker 1: senators as well.

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Speaker 3: He didn't take the stand. So what was his defense

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Speaker 3: against the gold bars and the cash and the Mercedes.

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Speaker 1: Well, the general defense strategy was to attack the witnesses

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Speaker 1: through cross examination, and his lawyers were quite effective at that.

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Speaker 1: I'm sure they knew that he wasn't going to testify,

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Speaker 1: so they put their case on primarily through the prosecution witnesses,

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Speaker 1: although they did call a half dozen witnesses. At the end,

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Speaker 1: he had a number of defenses, but as you say,

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Speaker 1: he had to come up with a story for the

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Speaker 1: cash and the gold bars. As far as the cash went,

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Speaker 1: he said that he had withdrawn cash in the amount

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Speaker 1: of four hundred dollars regularly, say, every two or three weeks,

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Speaker 1: for decades, and that would account for all the cash

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Speaker 1: that was lying around his house that FBI agents received.

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Speaker 1: The gold bars, he said, were gifts to Nadine Arslanian,

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Speaker 1: then his girlfriend and later his wife from her wealthy family.

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Speaker 1: In Lebanon, and the prosecutors countered that by saying that

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Speaker 1: the larger gold bars that they seized bore the serial

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Speaker 1: numbers that matched a list in the possession of Fred Davies,

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Speaker 1: a prominent developer in Edgwater, New Jersey, who was known

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Speaker 1: for his generosity and for collecting gold.

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Speaker 3: In twenty seventeen, Menandez was tried on unrelated federal bribery

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Speaker 3: and corruption charges that ended in a mistrial. Did the

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Speaker 3: evidence here show that that mistrials cparently didn't deter him?

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Speaker 3: These schemes allegedly took place soon after.

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Speaker 1: Yes, that trial ended in the fall of twenty seventeen,

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Speaker 1: and the evidence showed that the bribery plot in this

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Speaker 1: case for which he was convicted began in early twenty eighteen.

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Speaker 1: Of course, this was handled by the federal prosecutors in Manhattan,

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Speaker 1: the Southern District of New York, presumably because they felt

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Speaker 1: there would be a conflict for the prosecutors in New Jersey.

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Speaker 3: So now he is going to be sentenced on October

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Speaker 3: twenty ninth. He faces decades in prison on paper, What

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Speaker 3: do you think a likely sentence might be.

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Speaker 1: On the most serious charges he faces twenty years in prison.

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Speaker 1: It's very rare in a white collar case like this

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Speaker 1: for a first time non violent offender with a long

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Speaker 1: career of public service to get anything like that kind

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Speaker 1: of time. It's hard to know. I mean, we just

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Speaker 1: have the conviction today, so if I had to guess,

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Speaker 1: I would say maybe several years.

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Speaker 3: Thanks so much, David for your reporting all during the trial.

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Speaker 3: That's Bloomberg Legal reporter David Voriakis. Coming up next, the

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Speaker 3: likely demise of the National Youth Climate Case. I'm June

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Speaker 3: Grosso and you're listening to Bloomberg. It's one of the

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Speaker 3: most closely watched climate change cases in recent years, kids

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Speaker 3: taking on the federal government to secure their futures. Twenty

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Speaker 3: one young people sued the federal government in twenty fifteen,

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Speaker 3: asserting that the government violated their constitutional rights by allowing

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Speaker 3: decades worth of greenhouse gas emissions to spew into the atmosphere.

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Speaker 3: There were twists and turns as three presidential administrations fought

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Speaker 3: to delay or dismiss this landmark constitutional climate case. And now,

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Speaker 3: after nine years of litigation that never addressed the merits

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Speaker 3: of their claims, it appears the case is as good

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Speaker 3: as over with no viable path for the young plaintiffs

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Speaker 3: to pursue. Joining me is an expert in environmental law.

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Speaker 3: Pat Parento a professor at the Vermont Law and Graduate School.

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Speaker 3: The Juliana case was filed way back in twenty fifteen.

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Speaker 3: It has spanned three presidential administrations. Tell us the basics

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Speaker 3: of it before we go into this tangled legal history.

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Speaker 5: Yeah, so this case was brought to try to establish

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Speaker 5: a constitutional right under the federal US Constitution, under Article fourteen,

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Speaker 5: sort of fundamental right to a stable climate, or, as

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Speaker 5: Judge Aiken, who was the District court judge and Juliana said,

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Speaker 5: a climate system capable of supporting human life on Earth. Now,

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Speaker 5: some of us might like to think there should be

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Speaker 5: such a constitutional right, but the case was brought to

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Speaker 5: try to establish that in federal court. Almost a decade

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Speaker 5: run in the federal courts, which now seems to have

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Speaker 5: come to an end, although we can talk a little

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Speaker 5: bit about what comes next.

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Speaker 3: And there were two different panels of the Ninth Circuit

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Speaker 3: that heard this case.

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Speaker 5: Yeah, it does have a tortured procedural history. So the

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Speaker 5: original complaint really shot for the moon. It asked for

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Speaker 5: a plan to reduce carbon emissions basically down to zero

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Speaker 5: or net zero by a date certain, with milestones all

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Speaker 5: along the way, for example, phasing out carbon from the

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Speaker 5: electricity sector by twenty thirty and so forth. A very

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Speaker 5: very aggressive demand that federal courts order the federal government,

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Speaker 5: both the President and the Congress, the entire federal government

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Speaker 5: ordered them to come up with a plan to achieve

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Speaker 5: net zero carbon emissions for the US economy. Very aggressive.

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Speaker 5: That complaint went to the first Panel of the Ninth Circuit,

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Speaker 5: and by a two to one decision, that panel decided

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Speaker 5: that kind of broad, comprehensive relief was not available under

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Speaker 5: our jurisprudence in the United States anyway, and so they

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Speaker 5: dismissed the case on standing. They agreed that these youth

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Speaker 5: plaintiffs had shown injury. Some of the injuries were physical.

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Speaker 5: One of the kids had asthma, and we know climate

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Speaker 5: change by heating up the air we breathe triggers asthma attacks.

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Speaker 5: Another one of the youth planeffs said they were in

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Speaker 5: a multi generation ranching family and they were watching their

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Speaker 5: ranch dry up. And so right down the list, the

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Speaker 5: court said, yes, these individual young people have shown particularized

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Speaker 5: injury which is the first step establishing standing, and this

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Speaker 5: was a really important finding. The court agreed that the

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Speaker 5: actions of the federal government, not just in action, but

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Speaker 5: the actions going back far administrations Democrat and Republican, had

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Speaker 5: been making the situation worse by continuing to promote and

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Speaker 5: develop fossil fuels, et cetera. And so therefore the plaintiffs

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Speaker 5: had shown that their injury were being caused or contributed

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Speaker 5: to by the actions that the federal government was persisting

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Speaker 5: in taking. So that was two steps towards proving standing.

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Speaker 5: It was the third step that tripped them up is

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Speaker 5: what we call redressibility, which means, assuming this injury, assuming

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Speaker 5: the actions of the government are making the injury worse,

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Speaker 5: what can the courts do about it? And that's where

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Speaker 5: the first panel of the Ninth Circuit said they tripped

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Speaker 5: their hands. We simply don't have the authority under our

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Speaker 5: constitutional system of government. That's the matter for the legislature

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Speaker 5: and the executive branch to work out. The courts can't

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Speaker 5: simply order it. So that was the first decision. Following

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Speaker 5: that decision, attorneys representing the Youth Planets went back to

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Speaker 5: Judge Aiken and emotion to amend this complaint to only

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Speaker 5: seek declaratory relief. So no injunction, no comprehensive plan, just

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Speaker 5: tell us do we have a constitutional right to a

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Speaker 5: safe climate or not? And if not, of course why not.

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Speaker 5: So Judge Aiken agreed they should be able to amend

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Speaker 5: the complaint. She based her decision on the fact that

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Speaker 5: the original Ninth Circuit decision did not say dismiss the

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Speaker 5: case with prejudice. They didn't use that magic language dismissal

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Speaker 5: with prejudice, So Aiken said, in the absence of directing

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Speaker 5: me to dismiss it with prejudice, I think I have

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Speaker 5: the discretion to allow the amendment. And since all they're

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Speaker 5: seeking now is a declaratory judgment, that basically cures what

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Speaker 5: she saw at least as the defect in the original

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Speaker 5: complaint that the first panel of the Ninth Circuit said

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Speaker 5: was fatal.

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Speaker 3: That first panel of the Ninth Circuit was comprised of

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Speaker 3: three judges appointed by President Obama. The second panel was

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Speaker 3: a different story.

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Speaker 5: So now we come to the second Ninth Circuit decision

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Speaker 5: just recently within the last year, in which now we're

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Speaker 5: talking about free Trump appointees to the Ninth Circuit that

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Speaker 5: comprises the second panel, and they excoriated Judge Aiken. They

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Speaker 5: said it was basically arbitrary, almost outrageous, perhaps for her

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Speaker 5: to not read the original decision of the panel the

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Speaker 5: first panel as a requirement that the whole case be

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Speaker 5: thrown out, lock stock and barrel. So that's what the

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Speaker 5: second panel said, and that was a three zero decision.

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Speaker 5: And then we come to the very last gasp, which

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Speaker 5: is after this second second Ninth Circuit panel throws the

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Speaker 5: case out, the youth plaintiff lawyers asked for the full

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Speaker 5: Ninth Circuit to review the case. And what we call

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Speaker 5: where you have actually not the full Night cert because

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Speaker 5: there are over thirty judges on this full Ninth Circuit,

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Speaker 5: but it would be a much larger panel, typically twelve

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Speaker 5: or thirteen thirteen I think judges sit on that kind

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Speaker 5: of a panel. But it takes at least one judge

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Speaker 5: of the Ninth Circuit to request a vote on whether

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Speaker 5: to take the case up before an un banc panel,

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Speaker 5: and they didn't even get one vote. So that's where

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Speaker 5: we are today. The case has been dismissed. There's no

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Speaker 5: further appeal to the Ninth Circuit. The only remaining avenue

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Speaker 5: for appeal would be to file a petition for cirshararii

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Speaker 5: or review to the US Supreme Court, something that terrifies

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Speaker 5: a lot of us.

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Speaker 3: I mean, it's been at the Supreme Court twice on

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Speaker 3: procedural issues.

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Speaker 5: I think it went up twice on what's called a

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Speaker 5: rid of mandamus, which is an extraordinary remedy. The Supreme

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Speaker 5: Court never granted the petition for mandamus, but they in

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Speaker 5: two different and particularly the last one written by Chief

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Speaker 5: Justice Roberts, they made it crystal clear that this case

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Speaker 5: should be dismissed. Roberts basically was speaking directly to Judge Aiken,

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Speaker 5: and he was saying to her, you need to take

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Speaker 5: another look at whether this case should be certified for

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Speaker 5: reviews by the Ninth Circuit. And the Ninth Circuit should

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Speaker 5: look very hard at whether a case of this magnitude

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Speaker 5: and scope belongs in federal court. So not too subtle

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Speaker 5: message to the lower courts, get rid of it.

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Speaker 3: I guess the Ninth Circuit heard that message. The young

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Speaker 3: plaintiffs asked for a rehearing before a full panel of

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Speaker 3: the Ninth Circuit that would be eleven judges, but no

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Speaker 3: judges requested to vote on whether to open the dismissed

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Speaker 3: case once more and deny their request last week. It

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Speaker 3: appears the only thing the plaintiffs could do now is

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Speaker 3: file a cert petition with the Supreme Court. But is

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Speaker 3: that wise to do with this Supreme Court? Or is

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Speaker 3: it better just to end the case where it is right?

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Speaker 5: There's no way the Supreme Court is going to take

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Speaker 5: this case for any other reason than than to do

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Speaker 5: further damage two cases being brought to try to seek

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Speaker 5: remedies for climate They could even revisit the Massachusetts versus

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Speaker 5: CPA case, which turned on a five to four vote

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Speaker 5: on whether there was standing to challenge EPA's failure to

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Speaker 5: regulate greenhouse gas emissions, and the majority in that case

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Speaker 5: are now gone basically, so it's a totally different court.

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Speaker 5: So the only reason this Supreme Court would take the

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Speaker 5: case would be perhaps to review Massachusetts versus CPA and

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Speaker 5: almost certainly issue a decision that would slam the courthouse

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Speaker 5: doors shut once and for all on plaintiffs seeking remedies

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Speaker 5: for climate change.

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Speaker 3: Every administration, the Obama administration, the Trump administration, the Biden administration,

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Speaker 3: some which we consider friendly to environmental causes. Has been aggressive,

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Speaker 3: so aggressive in preventing this case from going to trial.

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Speaker 5: Why yeah, I've said from the beginning, why not have

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Speaker 5: the trial? My goodness, if they hadn't fought so hard

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Speaker 5: all the way back to Obama, they could have had

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Speaker 5: a trial over with. And Judge Aakin was not saying

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Speaker 5: she was going to find in favor of the Planets.

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Speaker 5: She was saying, you take litigation one step at a time.

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Speaker 5: The first question is their standing. The second question is

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Speaker 5: is their liability. And what she was saying is We'll

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Speaker 5: have a trial and I'll make a decision based on

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Speaker 5: the trial. So at a minimum, I thought, why not

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Speaker 5: let them have a trial? You know, the Department of

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Speaker 5: Justice is hired and paid for by us, the taxpayers,

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Speaker 5: to defend the government in court. That's why we have courts.

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Speaker 5: Courts are supposed to say what the law is, so

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Speaker 5: do it so. I mean, this all could have been

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Speaker 5: avoided in my view if they just had the trial

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Speaker 5: long before now. Either Judge Aiken would have ruled against

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Speaker 5: the planeffs in one form or another, or the case

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Speaker 5: could have gone up on appeal on the basis of

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Speaker 5: a trial record, including all the evidence in support of

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Speaker 5: what the youth plans were arguing and in support of

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Speaker 5: what the government was doing to make the climate crisis worse.

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Speaker 5: And wouldn't that have served some public purpose to have

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Speaker 5: a record like that based on a trial tested by

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Speaker 5: the evidence. I think the answer to that is yes,

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Speaker 5: it would have benefited from that, even if an end

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Speaker 5: result was probably going to be no determination of a

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Speaker 5: constitutional right. I think that's fair to say, even with

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Speaker 5: the Supreme Court we had before the Trump appointees, but

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Speaker 5: certainly now there's no chance that this court would ever

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Speaker 5: recognize such a constitutional right. Hell, they're busy revoking constitutional

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Speaker 5: rights like Row versus Wade. So we weren't going to

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Speaker 5: get a favorable decision out of this Supreme Court no

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Speaker 5: matter what. But at least having a trial for no

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Speaker 5: less than at least historical purposes would have made the

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Speaker 5: case what the dangers were, what we're doing to these

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Speaker 5: young people, and what we're not doing that could avoid

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Speaker 5: some of the worst consequences.

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Speaker 3: So pat is the Juliana case, Dad, Then.

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Speaker 5: I think it's dead. I think it's time to move on.

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Speaker 5: I know my dear friends at our Children's Trust are

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Speaker 5: very reluctant, and I understand why to give up on it.

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Speaker 5: But they've got other avenues, and perhaps we should be

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Speaker 5: talking about some of those. This isn't the end of

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Speaker 5: the story on young plaintiffs asserting constitutional rights. I think

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Speaker 5: it is the end of the road doing so in

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Speaker 5: federal court.

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Speaker 3: Coming up next on the Bloomberg Lawn Show, I'll continue

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Speaker 3: this conversation with Professor Pat Parento and we'll discuss some

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Speaker 3: of the successes in climate change cases brought by young plaintiffs.

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Speaker 3: I'm June Grosso and this is Bloomberg. The historic climate

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Speaker 3: case of Juliana versus the United States appears to be

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Speaker 3: at an end after nine years of litigation that never

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Speaker 3: address the merits of the case, the claims by twenty

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Speaker 3: one young people that the government violated their constitutional rights

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Speaker 3: by allowing decades worth of greenhouse gas emissions to spew

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Speaker 3: into the atmosphere. But that case has inspired other young

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Speaker 3: people to sue over climate change, and some of those

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Speaker 3: cases have been more successful. I've been talking to environmental

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Speaker 3: law expert Pat Parento, a professor at the Vermont Law

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Speaker 3: and Graduate School, so Pat. In Montana, a group of

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Speaker 3: young people sued the state over its failure to consider

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Speaker 3: climate change when approving fossil fuel projects, and that became

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Speaker 3: the first case by young environmental activists to go to trial.

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Speaker 5: That's right, and it's the first ruling this by a

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Speaker 5: lower court in Montana, Judge Seeley issuing the first declaratory

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Speaker 5: judgment in that case. Unlike Juliana, the court said, all

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Speaker 5: I'm going to consider is a request for declaratory judgment.

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Speaker 5: So this judge was smart enough to limit the case

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Speaker 5: right from the get go. But her ruling backed up

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Speaker 5: by a two hundred separate factual findings, the most detailed

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Speaker 5: findings of fact we've ever seen in a climate case

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Speaker 5: on science, on technology, on the physical and mental emotional

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Speaker 5: effects on these young people from the effects of climate change,

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Speaker 5: particularly in Montana, and also challenging Montana's really how can

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Speaker 5: I put this delicately arbitrary, which prohibited state agencies from

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Speaker 5: even considering the climate change effects of licensing, permitting fossil

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Speaker 5: fuel development from pipelines, from coal mines, from coal burning

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Speaker 5: power plants, et cetera. So that's what the use plants.

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Speaker 5: In the Held versus Montana case, we're arguing your energy

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Speaker 5: policies are making the situation worse, and you have a

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Speaker 5: law on the books. That's blinding the agencies to the

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Speaker 5: consequences of what they're doing, not only to Montana's environment,

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Speaker 5: but to us as the future generation that has to

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Speaker 5: live with all of this. So her decision was historic,

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Speaker 5: and that was then taken up on appeal. The Montana

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Speaker 5: Supreme Court has now heard oral arguments on appeal were

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Speaker 5: waiting for a decision from the Montana Supreme Court.

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Speaker 3: The arguments before the Montana Supreme Court were they also

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Speaker 3: procedural based on whether or not the youth plaintiffs had standing.

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Speaker 5: Well, you know, standing is at the heart of that

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Speaker 5: case as well. The state is not challenging the injuries

438
00:28:32,160 --> 00:28:35,440
Speaker 5: that the plaintiffs are claiming, including there was a lot

439
00:28:35,480 --> 00:28:38,000
Speaker 5: of medical testimony in this case. For the first time

440
00:28:38,560 --> 00:28:43,720
Speaker 5: you had psychiatrists taking the stand saying I have conducted

441
00:28:43,920 --> 00:28:47,680
Speaker 5: an extensive interview of these plaintiffs, these young people, and

442
00:28:47,800 --> 00:28:51,080
Speaker 5: made a diagnosis, a medical diagnosis, that they are suffering

443
00:28:51,080 --> 00:28:53,800
Speaker 5: trauma some people have labeled at climate trauma. I mean

444
00:28:53,960 --> 00:28:56,840
Speaker 5: sports teams in the summertime are precluded from playing soccer

445
00:28:56,880 --> 00:28:59,880
Speaker 5: and other sports because of the heat and particularly because

446
00:28:59,880 --> 00:29:03,440
Speaker 5: of the wildfire's blowing toxic smoke. All over the place. So,

447
00:29:03,640 --> 00:29:07,160
Speaker 5: for example, the planets were saying, you know, what's my

448
00:29:07,280 --> 00:29:09,480
Speaker 5: future going to be in a world like this that

449
00:29:09,520 --> 00:29:12,800
Speaker 5: I see happening right before my very eyes. So there

450
00:29:12,840 --> 00:29:16,560
Speaker 5: was no argument about injury. The state focused its argument

451
00:29:16,920 --> 00:29:19,600
Speaker 5: on the fact that while your injuries can't be caused

452
00:29:19,760 --> 00:29:24,600
Speaker 5: by emissions from Montana, because our emissions, compared to global emissions,

453
00:29:24,640 --> 00:29:27,320
Speaker 5: which are about forty billion tons a year, are just

454
00:29:27,360 --> 00:29:31,040
Speaker 5: a drop in the bucket, they're too insignificant to matter.

455
00:29:31,160 --> 00:29:34,760
Speaker 5: That was one of their primary arguments. Their second argument was,

456
00:29:35,320 --> 00:29:39,360
Speaker 5: and by the way, requiring us to consider the climate

457
00:29:39,480 --> 00:29:42,120
Speaker 5: change effects, assuming we could even figure out how to

458
00:29:42,160 --> 00:29:44,840
Speaker 5: do that, won't make any difference. This was really an

459
00:29:44,880 --> 00:29:49,640
Speaker 5: astounding argument because we've never denied a permit for pipelines

460
00:29:49,760 --> 00:29:53,080
Speaker 5: or other coal mines or other fossil fuel development, and

461
00:29:53,160 --> 00:29:56,640
Speaker 5: we won't because we can't because the state law that

462
00:29:56,720 --> 00:30:00,800
Speaker 5: requires this kind of environmental assessment of climate change of facts.

463
00:30:00,800 --> 00:30:04,200
Speaker 5: It's a version of our National Environmental Policy Act called

464
00:30:04,200 --> 00:30:08,680
Speaker 5: the Montana Environmental Policy Actor MIPA. Their argument was, MIPA,

465
00:30:09,280 --> 00:30:13,040
Speaker 5: even if we wrote an extensive environmental impact statement documenting

466
00:30:13,320 --> 00:30:16,760
Speaker 5: all of these impacts, we can't use that to deny

467
00:30:16,960 --> 00:30:21,400
Speaker 5: permit for this development. Therefore, the court can't award any

468
00:30:21,440 --> 00:30:26,520
Speaker 5: meaningful relief. Really astounding arguments that, by the way, I

469
00:30:26,560 --> 00:30:29,160
Speaker 5: don't think the Montana Supreme Court is going to accept.

470
00:30:29,960 --> 00:30:33,000
Speaker 3: And then you have in Hawaii the first time a

471
00:30:33,120 --> 00:30:36,480
Speaker 3: state has settled a lawsuit with a group of young

472
00:30:36,560 --> 00:30:38,920
Speaker 3: people over climate change.

473
00:30:39,560 --> 00:30:43,440
Speaker 5: That's right, that's called the Navahine case. And in that case,

474
00:30:43,480 --> 00:30:46,880
Speaker 5: our Children's Press was representing yet another group of young people,

475
00:30:47,160 --> 00:30:52,360
Speaker 5: and they were challenging Hawaii's transportation system. Of course, Hawaii

476
00:30:52,440 --> 00:30:54,880
Speaker 5: is an archipelago of I don't know how many islands,

477
00:30:54,920 --> 00:30:57,720
Speaker 5: so a very complicated, you know, matter for the state

478
00:30:57,800 --> 00:31:01,000
Speaker 5: to deal with. And so this case was teed up

479
00:31:01,040 --> 00:31:04,680
Speaker 5: for trials starting in last June and just settled. They

480
00:31:04,760 --> 00:31:07,960
Speaker 5: postponed the trial so they could negotiate an agreement, which

481
00:31:08,000 --> 00:31:11,080
Speaker 5: they reached. Now, the difference between Montana and Hawaii is

482
00:31:11,480 --> 00:31:15,080
Speaker 5: night and day. So Montana is a very hard right

483
00:31:15,480 --> 00:31:20,560
Speaker 5: republican state, republican governor, republican ag republican legislature. Hawaii is

484
00:31:20,600 --> 00:31:26,160
Speaker 5: the exact opposite. It's a liberal democratic, progressive government, governor, legislature,

485
00:31:26,320 --> 00:31:29,960
Speaker 5: attorney general. And they were anxious frankly to avoid a

486
00:31:30,000 --> 00:31:34,240
Speaker 5: trial because they agreed with the plaintiffs that climate change

487
00:31:34,280 --> 00:31:36,800
Speaker 5: is a problem getting worse for Hawaii. We saw what

488
00:31:36,880 --> 00:31:41,240
Speaker 5: happened in Maui unfortunately with those wildfires contributed at least

489
00:31:41,280 --> 00:31:44,960
Speaker 5: in some part to what's happening with the weather out there.

490
00:31:45,160 --> 00:31:49,720
Speaker 5: So that's the first settlement agreement where a state has

491
00:31:49,800 --> 00:31:54,560
Speaker 5: agreed to make changes not only to their transportation policies,

492
00:31:54,800 --> 00:31:59,880
Speaker 5: but actually start ramping up significant investments where they can

493
00:32:00,480 --> 00:32:04,560
Speaker 5: in mass transit on the Big Island and Oahu, air

494
00:32:04,600 --> 00:32:07,040
Speaker 5: travel is the biggest problem, So trying to figure out

495
00:32:07,200 --> 00:32:09,640
Speaker 5: how are you going to deal with island hopping through

496
00:32:10,080 --> 00:32:12,280
Speaker 5: airline travel is going to be a real challenge. But

497
00:32:12,560 --> 00:32:15,479
Speaker 5: the point is they reached an agreement, they've got at

498
00:32:15,560 --> 00:32:18,480
Speaker 5: least an initial plan for how to begin to reduce

499
00:32:18,520 --> 00:32:21,760
Speaker 5: emissions from the transportation sector, and then they'll go from there.

500
00:32:22,800 --> 00:32:26,640
Speaker 3: Does it make a difference that in Hawaii the constitution

501
00:32:26,840 --> 00:32:30,920
Speaker 3: guarantees the right to a clean and healthful environment and

502
00:32:31,160 --> 00:32:34,800
Speaker 3: the same in Montana that constitution also guarantees that. So

503
00:32:34,960 --> 00:32:39,120
Speaker 3: does that make these two states different from most others?

504
00:32:39,680 --> 00:32:42,440
Speaker 5: Yes, it does, And you're right, there's a right to

505
00:32:42,480 --> 00:32:46,960
Speaker 5: a Clean and Healthy Environment provision in both Montana and Hawaii.

506
00:32:47,000 --> 00:32:50,840
Speaker 5: Hawaii also has one of the strongest public trust doctrines

507
00:32:50,920 --> 00:32:53,280
Speaker 5: in the United States, and that was a factor in

508
00:32:53,320 --> 00:32:56,480
Speaker 5: the case as well. Other states that have a green amendment,

509
00:32:56,680 --> 00:33:01,240
Speaker 5: New York, Pennsylvania. I would anticipate we're going to see

510
00:33:01,280 --> 00:33:05,720
Speaker 5: lawsuits in those states trying to seek similar judgments from

511
00:33:05,760 --> 00:33:11,080
Speaker 5: the state courts under those constitutional what we call green amendments,

512
00:33:11,640 --> 00:33:14,680
Speaker 5: And frankly, I think there's a reasonable chance of success

513
00:33:14,720 --> 00:33:18,560
Speaker 5: in both New York and Pennsylvania. There are other states

514
00:33:18,680 --> 00:33:21,600
Speaker 5: with these green amendments, believe it or not. Alaska has one,

515
00:33:21,840 --> 00:33:26,920
Speaker 5: Louisiana has one, Florida has one, and Our Children's Trust

516
00:33:27,040 --> 00:33:30,160
Speaker 5: has litigation going on in all three of those states,

517
00:33:30,160 --> 00:33:33,840
Speaker 5: in fact as litigation in every state. So we'll see

518
00:33:33,880 --> 00:33:36,440
Speaker 5: what happens. But I think they're going to win on

519
00:33:36,560 --> 00:33:39,720
Speaker 5: appeal in Montana. I think that's going to set a precedent.

520
00:33:40,080 --> 00:33:42,200
Speaker 5: It's not going to have a lot of immediate practical

521
00:33:42,200 --> 00:33:45,120
Speaker 5: effect in Montana because of the politics, but it is

522
00:33:45,160 --> 00:33:48,040
Speaker 5: going to be a building block for other state courts

523
00:33:48,200 --> 00:33:50,360
Speaker 5: to build on. No court likes to be the first

524
00:33:50,800 --> 00:33:53,200
Speaker 5: to make a decision like this, but many courts are

525
00:33:53,280 --> 00:33:56,440
Speaker 5: prepared to be the second or third to do that.

526
00:33:56,840 --> 00:34:00,560
Speaker 5: The settlement in Hawaii shows that what the plintiffs are

527
00:34:00,600 --> 00:34:05,280
Speaker 5: seeking is not unreasonable, is not undoable, but with the

528
00:34:05,360 --> 00:34:09,719
Speaker 5: right kind of political receptivity, things can be done to

529
00:34:09,800 --> 00:34:14,960
Speaker 5: improve the situation. So it's early days of this form

530
00:34:15,040 --> 00:34:19,799
Speaker 5: of state based climate litigation, but for me, that is

531
00:34:19,840 --> 00:34:23,560
Speaker 5: the future. That's where climate litigation, if it has some

532
00:34:23,760 --> 00:34:26,279
Speaker 5: chance of success, that's where it's going to find it.

533
00:34:27,120 --> 00:34:30,640
Speaker 3: I want to touch on another case not involving young plaintiffs,

534
00:34:31,160 --> 00:34:35,879
Speaker 3: because Junolulu is a plaintiff in a climate case against

535
00:34:36,239 --> 00:34:40,239
Speaker 3: Snoko and other big oil companies, accusing them of misleading

536
00:34:40,280 --> 00:34:44,760
Speaker 3: the public by concealing their understanding of the devastating effects

537
00:34:44,760 --> 00:34:49,040
Speaker 3: of global warming. So now a coalition has appealed that

538
00:34:49,080 --> 00:34:52,040
Speaker 3: decision to the Supreme Court, and the Supreme Court has

539
00:34:52,040 --> 00:34:55,759
Speaker 3: asked the Biden administration for its views. Does that mean

540
00:34:55,840 --> 00:34:59,520
Speaker 3: some of the justices are interested in this and how

541
00:34:59,520 --> 00:35:01,840
Speaker 3: bad would if the Supreme Court took this case?

542
00:35:02,600 --> 00:35:06,600
Speaker 5: Yes, that does mean that some justices are interested in this.

543
00:35:06,680 --> 00:35:10,719
Speaker 5: There was an earlier petition from the Eighth Circuit Court

544
00:35:10,719 --> 00:35:15,279
Speaker 5: of Appeals in a case brought by Minnesota, where the

545
00:35:15,320 --> 00:35:20,040
Speaker 5: Supreme Court declined to take the case, but Justice Kavanaugh

546
00:35:20,800 --> 00:35:24,360
Speaker 5: wrote a short dissense saying, I think some of the

547
00:35:24,440 --> 00:35:28,480
Speaker 5: issues being raised by the oil industry deserve review in

548
00:35:28,520 --> 00:35:33,080
Speaker 5: our court. So he has signaled an interest in these cases,

549
00:35:33,800 --> 00:35:38,080
Speaker 5: and by requesting the views of the Solicitor General, which

550
00:35:38,320 --> 00:35:42,320
Speaker 5: of course this court may simply ignore it has before,

551
00:35:42,840 --> 00:35:46,239
Speaker 5: that does say that there's some interest at least in

552
00:35:46,320 --> 00:35:49,640
Speaker 5: thinking harder about whether now is the time to review

553
00:35:49,680 --> 00:35:52,640
Speaker 5: these cases. This is the case from Honolulu. It hasn't

554
00:35:52,680 --> 00:35:56,040
Speaker 5: gone to trial, so there's no final judgment. I've made

555
00:35:56,400 --> 00:35:59,680
Speaker 5: the argument in writing that I don't think the Supreme

556
00:35:59,680 --> 00:36:03,320
Speaker 5: Court actually has jurisdiction over a case from a state

557
00:36:03,360 --> 00:36:05,799
Speaker 5: court where there's been no judgment. It's what's called an

558
00:36:05,840 --> 00:36:11,640
Speaker 5: interlocutory appeal preliminary case. So what I'm hoping is that

559
00:36:11,719 --> 00:36:14,160
Speaker 5: the court declines to take it, they don't need to

560
00:36:14,200 --> 00:36:17,640
Speaker 5: take it. They probably this court probably is going to

561
00:36:17,680 --> 00:36:22,040
Speaker 5: have the final word on these climate liability cases. There

562
00:36:22,040 --> 00:36:26,439
Speaker 5: are now about thirty four cases pending in state court

563
00:36:26,440 --> 00:36:30,879
Speaker 5: across the country, brought by state cities, counties. I think

564
00:36:30,920 --> 00:36:35,200
Speaker 5: at some point there is likely to be a verdict Frankly,

565
00:36:35,320 --> 00:36:37,200
Speaker 5: I don't know which one. There's going to be wins

566
00:36:37,200 --> 00:36:40,600
Speaker 5: and losses probably along the way, but at some point,

567
00:36:40,960 --> 00:36:43,480
Speaker 5: and maybe Hawaii will be one of those, I think

568
00:36:43,520 --> 00:36:46,120
Speaker 5: there will be a verdict and a final judgment, and

569
00:36:46,160 --> 00:36:49,160
Speaker 5: I think the Supreme Court will at some point take

570
00:36:49,200 --> 00:36:52,880
Speaker 5: the case to determine whether or not as the oil

571
00:36:52,880 --> 00:36:56,839
Speaker 5: industry is arguing, there is no remedy for climate change

572
00:36:56,880 --> 00:37:00,600
Speaker 5: damages period in no court, not federal court, state court.

573
00:37:01,000 --> 00:37:04,120
Speaker 5: That's their ultimate argument, and they're going to argue something

574
00:37:04,160 --> 00:37:09,000
Speaker 5: they call absolute preemption, that courts have no business, no jurisdiction,

575
00:37:09,840 --> 00:37:15,200
Speaker 5: no authority to adjudicate claims for damages against the oil industry,

576
00:37:15,800 --> 00:37:17,920
Speaker 5: and at some point I think that is going to

577
00:37:17,960 --> 00:37:20,560
Speaker 5: have to be settled by the US Supreme Court.

578
00:37:21,040 --> 00:37:24,439
Speaker 3: A lot of climate litigation ahead of us. Thanks so much,

579
00:37:24,480 --> 00:37:29,280
Speaker 3: Pat for helping us understand the landscape of climate litigation.

580
00:37:30,120 --> 00:37:33,960
Speaker 3: That's Professor Pat Parento of the Vermont Law and Graduate School.

581
00:37:34,239 --> 00:37:36,880
Speaker 3: And that's it for this edition of the Bloomberg Law Podcast.

582
00:37:37,239 --> 00:37:39,600
Speaker 3: Remember you can always get the latest legal news by

583
00:37:39,640 --> 00:37:43,480
Speaker 3: subscribing and listening to the show on Apple Podcasts, Spotify,

584
00:37:43,760 --> 00:37:47,600
Speaker 3: and at Bloomberg dot com. Slash Podcast, Slash Law. I'm

585
00:37:47,680 --> 00:37:50,080
Speaker 3: June Grosso and this is Bloomberg