Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 2: This case has always been about shocking levels of corruption,
Speaker 2: hundreds of thousands of dollars in bribes in the form
Speaker 2: of cash, gold bars, a Mercedes Benz. This wasn't politics
Speaker 2: as usual, this was politics for profit. And now that
Speaker 2: a jury has convicted Bob Menendez, his years of selling
Speaker 2: his office of the highest bidder have finally come to
Speaker 2: an end.
Speaker 3: Manhattan US Attorney Damian Williams basically summed up the prosecution's
Speaker 3: case against Senator Bob Menendez after a jury found the
Speaker 3: once powerful New Jersey Democrat guilty of bribery, extortion, and
Speaker 3: acting as a foreign agent of Egypt, convicting him on
Speaker 3: all sixteen counts after a two month trial where prosecutors
Speaker 3: said he put his power up for sale. Menendez continues
Speaker 3: to maintain his innocence and says he expects to succeed
Speaker 3: on a I.
Speaker 4: Have never violated my public oath. I have never been
Speaker 4: anything but a patriot of my country and for my country.
Speaker 4: I have never ever been a foreign agent. And the
Speaker 4: decision righted by the jury today would put at risk
Speaker 4: every member of the United States Senate in terms of
Speaker 4: what they think a foreign agent would be.
Speaker 3: Joining me is Bloomberg Legal reporter David Voriakiz, who covered
Speaker 3: the trial. David tell us about the prosecution's case.
Speaker 1: Senator Bob Menendez was accused in a sweeping corruption case
Speaker 1: of bribery, extortion, acting as an agent of Egypt, and
Speaker 1: obstruction of justice. The case centered around some explosive evidence
Speaker 1: that the FBI sees two years ago at his home
Speaker 1: in suburban New Jersey, and that was thirteen gold bars,
Speaker 1: nearly five hundred thousand dollars in cash, and a black
Speaker 1: Mercedes Benz convertible that prosecutors said was the product of
Speaker 1: a bribe scheme that Menendez and his wife, Nadine received
Speaker 1: over the previous five years.
Speaker 3: The prosecution had a lot of different kinds of evidence
Speaker 3: against him. You mentioned the gold bars and the five
Speaker 3: hundred thousand dollars in cash stashed around his house in closets, boots, jackets,
Speaker 3: a safe, etc. An undercover FBI videotape, a witness who
Speaker 3: flipped and testified against him. What was the strongest evidence
Speaker 3: against him?
Speaker 1: I think the strongest evidence would have to be the
Speaker 1: cash in the gold bars, both of which prosecutors presented
Speaker 1: in court so that the jurors could see what they
Speaker 1: are talking about. There was also three different summary charts
Speaker 1: that included thousands of lines of texts, emails, calls, meetings.
Speaker 1: They had very meticulous and detailed chronogies, because this was
Speaker 1: a subtle and discreete set of interlocking schemes that really
Speaker 1: could only be understood in their totality, in which jurors
Speaker 1: saw the timeline of a number of interactions and how
Speaker 1: they fit together. And so it took time to spell
Speaker 1: that out and for the picture to come into focus,
Speaker 1: and that picture, by the end of the trial, the
Speaker 1: prosecutor said, was an overwhelming case against Menendez and the
Speaker 1: two businessmen tried with him, Will Hannah and Fred Davies David, Was.
Speaker 3: There any specific evidence of him saying I'll do this
Speaker 3: for you if you give me that you know, quid
Speaker 3: pro quo.
Speaker 1: There wasn't a great deal of quid pro quo evidence
Speaker 1: that prosecutors put forward, but I would say there was
Speaker 1: no specific mission, say on tape or to another witness,
Speaker 1: in which Menendez said, yes, I know I'm committing the
Speaker 1: crime of bribery. Essentially, prosecutors built their case through inference
Speaker 1: in which they showed that right after Menendez, say, met
Speaker 1: with the Attorney General of New Jersey on behalf of
Speaker 1: a businessman, he then called that businessman, who then texted
Speaker 1: someone else who said, I finally found peace. It's that
Speaker 1: sort of stringing together of a collection of different discrete
Speaker 1: pieces of evidence that lead to the clear inference that
Speaker 1: Menendez was engaged in bribery schemes with his wife, Nadine.
Speaker 3: Menendez blamed his wife, and he had the benefit of
Speaker 3: being tried separately. She's going to be tried later, so
Speaker 3: there wasn't an uncomfortable situation of point to the co
Speaker 3: defendant and wife who's sitting next to you as the culprit.
Speaker 3: How much evidence was there against his wife.
Speaker 1: There was a lot of evidence pointing to Nadine as
Speaker 1: a crucial go between who connected Menendez with the businessmen
Speaker 1: who were on trial with him and with other people
Speaker 1: less directly involved in the case. She also set up
Speaker 1: meetings with Egyptian military people and intelligence officials, and according
Speaker 1: to the government, collected gold bars and cash from Fred Davies,
Speaker 1: one of the co defendants, and also had a crucial
Speaker 1: connection and relationship with Will Hannah, who was the other
Speaker 1: co defendant, and prosecutors said they were like brother and sister.
Speaker 1: They were very close. And some of the most damning
Speaker 1: evidence involved the Mercedes Benz that another business this man,
Speaker 1: Jose Euribe, gave to her, essentially by handing her a
Speaker 1: fifteen thousand dollars cash down payment in a diner parking
Speaker 1: lot in New Jersey and then making monthly payments on
Speaker 1: the car for two and a half years. There was
Speaker 1: also evidence that will Hanna, the other defendant in this case,
Speaker 1: gave her a no show job in which he paid
Speaker 1: her ten thousand dollars a month for three months, and
Speaker 1: he paid off her mortgage on her home in New
Speaker 1: Jersey when she was in a great deal of financial distress.
Speaker 4: You have to.
Speaker 3: Tell the story about the bill that prosecutors used to
Speaker 3: show that Menendez was the one in charge, not his wife.
Speaker 1: There was a crucial meeting behind the Menendez house in
Speaker 1: September of twenty nineteen at ten o'clock at night, in
Speaker 1: which Jose Uibe, the operating businessman who pleaded guilty, said
Speaker 1: that he came over and spoke to Bob Menendez on
Speaker 1: the patio behind their house. And this was the night before,
Speaker 1: Menendez was going to meet with the Attorney General of
Speaker 1: New Jersey and make the case that state prosecutors should
Speaker 1: drop their criminal investigation of someone who was close to Eurebe.
Speaker 1: Jurors heard Eurebe talk about Menendez summoning his wife, Nadine
Speaker 1: with a bell, and that she came out from inside
Speaker 1: the house and delivered a piece of paper where Eurebe
Speaker 1: wrote down the names of the people that he was
Speaker 1: interested in. The bell became sort of a symbol of
Speaker 1: whether Menendez really controlled Nadine or not, because the Menendez
Speaker 1: defense was that Nadine was engaging in a lot of
Speaker 1: corrupt acts behind Menendez's belt. At the prosecutors tried to
Speaker 1: puncture that defense and say that he knew everything that
Speaker 1: Nadine was doing in that at certain times, as in
Speaker 1: the bell incident, she was sort of under his thumb.
Speaker 3: Menendez is now the first member of Congress to be
Speaker 3: convicted of being a public official acting as a foreign agent.
Speaker 3: Was there any evidence that he compromised the national interests
Speaker 3: of the United States?
Speaker 1: There was an incident in which Menendez threw his wife
Speaker 1: and then will Hannah passed along the number of people
Speaker 1: working at the US Embassy in Cairo. Prosecutor said that
Speaker 1: was sensitive information at the time and could have compromised
Speaker 1: the people who work there and exposed them to potential
Speaker 1: terrorist attacks. The defense said that that information had already
Speaker 1: been made public in a government report years earlier, Butters
Speaker 1: countered by saying that that was old information and the
Speaker 1: current information was not public. So while they didn't actually
Speaker 1: charge him with doing harm to US security interests, they
Speaker 1: certainly suggested that that was a possibility. By Menendez passing
Speaker 1: along how many people worked at the US Embassy in Cairo.
Speaker 3: After the Verick, Menendez said the decision would put every
Speaker 3: member of the Senate at risk in terms of what
Speaker 3: it means to be a foreign agent. Do you know
Speaker 3: what he meant by that.
Speaker 1: Yes. Their argument was during the trial that he was
Speaker 1: not engaged in being a foreign agent, that he didn't
Speaker 1: have Egypt's interests at heart, that in fact, he only
Speaker 1: had the United States interest in heart, and that as
Speaker 1: chairman of the Senate Foreign Relations Committee, he was engaged
Speaker 1: in diplomacy, not corruption, so that all of his interactions
Speaker 1: with Egyptian military and intelligence officials were acts of diplomacy
Speaker 1: and him exercising his power as chairman of that Foreign
Speaker 1: Relations Committee. So I think what he's saying is that
Speaker 1: if you find that what I did was corrupt and
Speaker 1: acting as an agent of a foreign country, then it's
Speaker 1: going to be the case for a bunch of other
Speaker 1: senators as well.
Speaker 3: He didn't take the stand. So what was his defense
Speaker 3: against the gold bars and the cash and the Mercedes.
Speaker 1: Well, the general defense strategy was to attack the witnesses
Speaker 1: through cross examination, and his lawyers were quite effective at that.
Speaker 1: I'm sure they knew that he wasn't going to testify,
Speaker 1: so they put their case on primarily through the prosecution witnesses,
Speaker 1: although they did call a half dozen witnesses. At the end,
Speaker 1: he had a number of defenses, but as you say,
Speaker 1: he had to come up with a story for the
Speaker 1: cash and the gold bars. As far as the cash went,
Speaker 1: he said that he had withdrawn cash in the amount
Speaker 1: of four hundred dollars regularly, say, every two or three weeks,
Speaker 1: for decades, and that would account for all the cash
Speaker 1: that was lying around his house that FBI agents received.
Speaker 1: The gold bars, he said, were gifts to Nadine Arslanian,
Speaker 1: then his girlfriend and later his wife from her wealthy family.
Speaker 1: In Lebanon, and the prosecutors countered that by saying that
Speaker 1: the larger gold bars that they seized bore the serial
Speaker 1: numbers that matched a list in the possession of Fred Davies,
Speaker 1: a prominent developer in Edgwater, New Jersey, who was known
Speaker 1: for his generosity and for collecting gold.
Speaker 3: In twenty seventeen, Menandez was tried on unrelated federal bribery
Speaker 3: and corruption charges that ended in a mistrial. Did the
Speaker 3: evidence here show that that mistrials cparently didn't deter him?
Speaker 3: These schemes allegedly took place soon after.
Speaker 1: Yes, that trial ended in the fall of twenty seventeen,
Speaker 1: and the evidence showed that the bribery plot in this
Speaker 1: case for which he was convicted began in early twenty eighteen.
Speaker 1: Of course, this was handled by the federal prosecutors in Manhattan,
Speaker 1: the Southern District of New York, presumably because they felt
Speaker 1: there would be a conflict for the prosecutors in New Jersey.
Speaker 3: So now he is going to be sentenced on October
Speaker 3: twenty ninth. He faces decades in prison on paper, What
Speaker 3: do you think a likely sentence might be.
Speaker 1: On the most serious charges he faces twenty years in prison.
Speaker 1: It's very rare in a white collar case like this
Speaker 1: for a first time non violent offender with a long
Speaker 1: career of public service to get anything like that kind
Speaker 1: of time. It's hard to know. I mean, we just
Speaker 1: have the conviction today, so if I had to guess,
Speaker 1: I would say maybe several years.
Speaker 3: Thanks so much, David for your reporting all during the trial.
Speaker 3: That's Bloomberg Legal reporter David Voriakis. Coming up next, the
Speaker 3: likely demise of the National Youth Climate Case. I'm June
Speaker 3: Grosso and you're listening to Bloomberg. It's one of the
Speaker 3: most closely watched climate change cases in recent years, kids
Speaker 3: taking on the federal government to secure their futures. Twenty
Speaker 3: one young people sued the federal government in twenty fifteen,
Speaker 3: asserting that the government violated their constitutional rights by allowing
Speaker 3: decades worth of greenhouse gas emissions to spew into the atmosphere.
Speaker 3: There were twists and turns as three presidential administrations fought
Speaker 3: to delay or dismiss this landmark constitutional climate case. And now,
Speaker 3: after nine years of litigation that never addressed the merits
Speaker 3: of their claims, it appears the case is as good
Speaker 3: as over with no viable path for the young plaintiffs
Speaker 3: to pursue. Joining me is an expert in environmental law.
Speaker 3: Pat Parento a professor at the Vermont Law and Graduate School.
Speaker 3: The Juliana case was filed way back in twenty fifteen.
Speaker 3: It has spanned three presidential administrations. Tell us the basics
Speaker 3: of it before we go into this tangled legal history.
Speaker 5: Yeah, so this case was brought to try to establish
Speaker 5: a constitutional right under the federal US Constitution, under Article fourteen,
Speaker 5: sort of fundamental right to a stable climate, or, as
Speaker 5: Judge Aiken, who was the District court judge and Juliana said,
Speaker 5: a climate system capable of supporting human life on Earth. Now,
Speaker 5: some of us might like to think there should be
Speaker 5: such a constitutional right, but the case was brought to
Speaker 5: try to establish that in federal court. Almost a decade
Speaker 5: run in the federal courts, which now seems to have
Speaker 5: come to an end, although we can talk a little
Speaker 5: bit about what comes next.
Speaker 3: And there were two different panels of the Ninth Circuit
Speaker 3: that heard this case.
Speaker 5: Yeah, it does have a tortured procedural history. So the
Speaker 5: original complaint really shot for the moon. It asked for
Speaker 5: a plan to reduce carbon emissions basically down to zero
Speaker 5: or net zero by a date certain, with milestones all
Speaker 5: along the way, for example, phasing out carbon from the
Speaker 5: electricity sector by twenty thirty and so forth. A very
Speaker 5: very aggressive demand that federal courts order the federal government,
Speaker 5: both the President and the Congress, the entire federal government
Speaker 5: ordered them to come up with a plan to achieve
Speaker 5: net zero carbon emissions for the US economy. Very aggressive.
Speaker 5: That complaint went to the first Panel of the Ninth Circuit,
Speaker 5: and by a two to one decision, that panel decided
Speaker 5: that kind of broad, comprehensive relief was not available under
Speaker 5: our jurisprudence in the United States anyway, and so they
Speaker 5: dismissed the case on standing. They agreed that these youth
Speaker 5: plaintiffs had shown injury. Some of the injuries were physical.
Speaker 5: One of the kids had asthma, and we know climate
Speaker 5: change by heating up the air we breathe triggers asthma attacks.
Speaker 5: Another one of the youth planeffs said they were in
Speaker 5: a multi generation ranching family and they were watching their
Speaker 5: ranch dry up. And so right down the list, the
Speaker 5: court said, yes, these individual young people have shown particularized
Speaker 5: injury which is the first step establishing standing, and this
Speaker 5: was a really important finding. The court agreed that the
Speaker 5: actions of the federal government, not just in action, but
Speaker 5: the actions going back far administrations Democrat and Republican, had
Speaker 5: been making the situation worse by continuing to promote and
Speaker 5: develop fossil fuels, et cetera. And so therefore the plaintiffs
Speaker 5: had shown that their injury were being caused or contributed
Speaker 5: to by the actions that the federal government was persisting
Speaker 5: in taking. So that was two steps towards proving standing.
Speaker 5: It was the third step that tripped them up is
Speaker 5: what we call redressibility, which means, assuming this injury, assuming
Speaker 5: the actions of the government are making the injury worse,
Speaker 5: what can the courts do about it? And that's where
Speaker 5: the first panel of the Ninth Circuit said they tripped
Speaker 5: their hands. We simply don't have the authority under our
Speaker 5: constitutional system of government. That's the matter for the legislature
Speaker 5: and the executive branch to work out. The courts can't
Speaker 5: simply order it. So that was the first decision. Following
Speaker 5: that decision, attorneys representing the Youth Planets went back to
Speaker 5: Judge Aiken and emotion to amend this complaint to only
Speaker 5: seek declaratory relief. So no injunction, no comprehensive plan, just
Speaker 5: tell us do we have a constitutional right to a
Speaker 5: safe climate or not? And if not, of course why not.
Speaker 5: So Judge Aiken agreed they should be able to amend
Speaker 5: the complaint. She based her decision on the fact that
Speaker 5: the original Ninth Circuit decision did not say dismiss the
Speaker 5: case with prejudice. They didn't use that magic language dismissal
Speaker 5: with prejudice, So Aiken said, in the absence of directing
Speaker 5: me to dismiss it with prejudice, I think I have
Speaker 5: the discretion to allow the amendment. And since all they're
Speaker 5: seeking now is a declaratory judgment, that basically cures what
Speaker 5: she saw at least as the defect in the original
Speaker 5: complaint that the first panel of the Ninth Circuit said
Speaker 5: was fatal.
Speaker 3: That first panel of the Ninth Circuit was comprised of
Speaker 3: three judges appointed by President Obama. The second panel was
Speaker 3: a different story.
Speaker 5: So now we come to the second Ninth Circuit decision
Speaker 5: just recently within the last year, in which now we're
Speaker 5: talking about free Trump appointees to the Ninth Circuit that
Speaker 5: comprises the second panel, and they excoriated Judge Aiken. They
Speaker 5: said it was basically arbitrary, almost outrageous, perhaps for her
Speaker 5: to not read the original decision of the panel the
Speaker 5: first panel as a requirement that the whole case be
Speaker 5: thrown out, lock stock and barrel. So that's what the
Speaker 5: second panel said, and that was a three zero decision.
Speaker 5: And then we come to the very last gasp, which
Speaker 5: is after this second second Ninth Circuit panel throws the
Speaker 5: case out, the youth plaintiff lawyers asked for the full
Speaker 5: Ninth Circuit to review the case. And what we call
Speaker 5: where you have actually not the full Night cert because
Speaker 5: there are over thirty judges on this full Ninth Circuit,
Speaker 5: but it would be a much larger panel, typically twelve
Speaker 5: or thirteen thirteen I think judges sit on that kind
Speaker 5: of a panel. But it takes at least one judge
Speaker 5: of the Ninth Circuit to request a vote on whether
Speaker 5: to take the case up before an un banc panel,
Speaker 5: and they didn't even get one vote. So that's where
Speaker 5: we are today. The case has been dismissed. There's no
Speaker 5: further appeal to the Ninth Circuit. The only remaining avenue
Speaker 5: for appeal would be to file a petition for cirshararii
Speaker 5: or review to the US Supreme Court, something that terrifies
Speaker 5: a lot of us.
Speaker 3: I mean, it's been at the Supreme Court twice on
Speaker 3: procedural issues.
Speaker 5: I think it went up twice on what's called a
Speaker 5: rid of mandamus, which is an extraordinary remedy. The Supreme
Speaker 5: Court never granted the petition for mandamus, but they in
Speaker 5: two different and particularly the last one written by Chief
Speaker 5: Justice Roberts, they made it crystal clear that this case
Speaker 5: should be dismissed. Roberts basically was speaking directly to Judge Aiken,
Speaker 5: and he was saying to her, you need to take
Speaker 5: another look at whether this case should be certified for
Speaker 5: reviews by the Ninth Circuit. And the Ninth Circuit should
Speaker 5: look very hard at whether a case of this magnitude
Speaker 5: and scope belongs in federal court. So not too subtle
Speaker 5: message to the lower courts, get rid of it.
Speaker 3: I guess the Ninth Circuit heard that message. The young
Speaker 3: plaintiffs asked for a rehearing before a full panel of
Speaker 3: the Ninth Circuit that would be eleven judges, but no
Speaker 3: judges requested to vote on whether to open the dismissed
Speaker 3: case once more and deny their request last week. It
Speaker 3: appears the only thing the plaintiffs could do now is
Speaker 3: file a cert petition with the Supreme Court. But is
Speaker 3: that wise to do with this Supreme Court? Or is
Speaker 3: it better just to end the case where it is right?
Speaker 5: There's no way the Supreme Court is going to take
Speaker 5: this case for any other reason than than to do
Speaker 5: further damage two cases being brought to try to seek
Speaker 5: remedies for climate They could even revisit the Massachusetts versus
Speaker 5: CPA case, which turned on a five to four vote
Speaker 5: on whether there was standing to challenge EPA's failure to
Speaker 5: regulate greenhouse gas emissions, and the majority in that case
Speaker 5: are now gone basically, so it's a totally different court.
Speaker 5: So the only reason this Supreme Court would take the
Speaker 5: case would be perhaps to review Massachusetts versus CPA and
Speaker 5: almost certainly issue a decision that would slam the courthouse
Speaker 5: doors shut once and for all on plaintiffs seeking remedies
Speaker 5: for climate change.
Speaker 3: Every administration, the Obama administration, the Trump administration, the Biden administration,
Speaker 3: some which we consider friendly to environmental causes. Has been aggressive,
Speaker 3: so aggressive in preventing this case from going to trial.
Speaker 5: Why yeah, I've said from the beginning, why not have
Speaker 5: the trial? My goodness, if they hadn't fought so hard
Speaker 5: all the way back to Obama, they could have had
Speaker 5: a trial over with. And Judge Aakin was not saying
Speaker 5: she was going to find in favor of the Planets.
Speaker 5: She was saying, you take litigation one step at a time.
Speaker 5: The first question is their standing. The second question is
Speaker 5: is their liability. And what she was saying is We'll
Speaker 5: have a trial and I'll make a decision based on
Speaker 5: the trial. So at a minimum, I thought, why not
Speaker 5: let them have a trial? You know, the Department of
Speaker 5: Justice is hired and paid for by us, the taxpayers,
Speaker 5: to defend the government in court. That's why we have courts.
Speaker 5: Courts are supposed to say what the law is, so
Speaker 5: do it so. I mean, this all could have been
Speaker 5: avoided in my view if they just had the trial
Speaker 5: long before now. Either Judge Aiken would have ruled against
Speaker 5: the planeffs in one form or another, or the case
Speaker 5: could have gone up on appeal on the basis of
Speaker 5: a trial record, including all the evidence in support of
Speaker 5: what the youth plans were arguing and in support of
Speaker 5: what the government was doing to make the climate crisis worse.
Speaker 5: And wouldn't that have served some public purpose to have
Speaker 5: a record like that based on a trial tested by
Speaker 5: the evidence. I think the answer to that is yes,
Speaker 5: it would have benefited from that, even if an end
Speaker 5: result was probably going to be no determination of a
Speaker 5: constitutional right. I think that's fair to say, even with
Speaker 5: the Supreme Court we had before the Trump appointees, but
Speaker 5: certainly now there's no chance that this court would ever
Speaker 5: recognize such a constitutional right. Hell, they're busy revoking constitutional
Speaker 5: rights like Row versus Wade. So we weren't going to
Speaker 5: get a favorable decision out of this Supreme Court no
Speaker 5: matter what. But at least having a trial for no
Speaker 5: less than at least historical purposes would have made the
Speaker 5: case what the dangers were, what we're doing to these
Speaker 5: young people, and what we're not doing that could avoid
Speaker 5: some of the worst consequences.
Speaker 3: So pat is the Juliana case, Dad, Then.
Speaker 5: I think it's dead. I think it's time to move on.
Speaker 5: I know my dear friends at our Children's Trust are
Speaker 5: very reluctant, and I understand why to give up on it.
Speaker 5: But they've got other avenues, and perhaps we should be
Speaker 5: talking about some of those. This isn't the end of
Speaker 5: the story on young plaintiffs asserting constitutional rights. I think
Speaker 5: it is the end of the road doing so in
Speaker 5: federal court.
Speaker 3: Coming up next on the Bloomberg Lawn Show, I'll continue
Speaker 3: this conversation with Professor Pat Parento and we'll discuss some
Speaker 3: of the successes in climate change cases brought by young plaintiffs.
Speaker 3: I'm June Grosso and this is Bloomberg. The historic climate
Speaker 3: case of Juliana versus the United States appears to be
Speaker 3: at an end after nine years of litigation that never
Speaker 3: address the merits of the case, the claims by twenty
Speaker 3: one young people that the government violated their constitutional rights
Speaker 3: by allowing decades worth of greenhouse gas emissions to spew
Speaker 3: into the atmosphere. But that case has inspired other young
Speaker 3: people to sue over climate change, and some of those
Speaker 3: cases have been more successful. I've been talking to environmental
Speaker 3: law expert Pat Parento, a professor at the Vermont Law
Speaker 3: and Graduate School, so Pat. In Montana, a group of
Speaker 3: young people sued the state over its failure to consider
Speaker 3: climate change when approving fossil fuel projects, and that became
Speaker 3: the first case by young environmental activists to go to trial.
Speaker 5: That's right, and it's the first ruling this by a
Speaker 5: lower court in Montana, Judge Seeley issuing the first declaratory
Speaker 5: judgment in that case. Unlike Juliana, the court said, all
Speaker 5: I'm going to consider is a request for declaratory judgment.
Speaker 5: So this judge was smart enough to limit the case
Speaker 5: right from the get go. But her ruling backed up
Speaker 5: by a two hundred separate factual findings, the most detailed
Speaker 5: findings of fact we've ever seen in a climate case
Speaker 5: on science, on technology, on the physical and mental emotional
Speaker 5: effects on these young people from the effects of climate change,
Speaker 5: particularly in Montana, and also challenging Montana's really how can
Speaker 5: I put this delicately arbitrary, which prohibited state agencies from
Speaker 5: even considering the climate change effects of licensing, permitting fossil
Speaker 5: fuel development from pipelines, from coal mines, from coal burning
Speaker 5: power plants, et cetera. So that's what the use plants.
Speaker 5: In the Held versus Montana case, we're arguing your energy
Speaker 5: policies are making the situation worse, and you have a
Speaker 5: law on the books. That's blinding the agencies to the
Speaker 5: consequences of what they're doing, not only to Montana's environment,
Speaker 5: but to us as the future generation that has to
Speaker 5: live with all of this. So her decision was historic,
Speaker 5: and that was then taken up on appeal. The Montana
Speaker 5: Supreme Court has now heard oral arguments on appeal were
Speaker 5: waiting for a decision from the Montana Supreme Court.
Speaker 3: The arguments before the Montana Supreme Court were they also
Speaker 3: procedural based on whether or not the youth plaintiffs had standing.
Speaker 5: Well, you know, standing is at the heart of that
Speaker 5: case as well. The state is not challenging the injuries
Speaker 5: that the plaintiffs are claiming, including there was a lot
Speaker 5: of medical testimony in this case. For the first time
Speaker 5: you had psychiatrists taking the stand saying I have conducted
Speaker 5: an extensive interview of these plaintiffs, these young people, and
Speaker 5: made a diagnosis, a medical diagnosis, that they are suffering
Speaker 5: trauma some people have labeled at climate trauma. I mean
Speaker 5: sports teams in the summertime are precluded from playing soccer
Speaker 5: and other sports because of the heat and particularly because
Speaker 5: of the wildfire's blowing toxic smoke. All over the place. So,
Speaker 5: for example, the planets were saying, you know, what's my
Speaker 5: future going to be in a world like this that
Speaker 5: I see happening right before my very eyes. So there
Speaker 5: was no argument about injury. The state focused its argument
Speaker 5: on the fact that while your injuries can't be caused
Speaker 5: by emissions from Montana, because our emissions, compared to global emissions,
Speaker 5: which are about forty billion tons a year, are just
Speaker 5: a drop in the bucket, they're too insignificant to matter.
Speaker 5: That was one of their primary arguments. Their second argument was,
Speaker 5: and by the way, requiring us to consider the climate
Speaker 5: change effects, assuming we could even figure out how to
Speaker 5: do that, won't make any difference. This was really an
Speaker 5: astounding argument because we've never denied a permit for pipelines
Speaker 5: or other coal mines or other fossil fuel development, and
Speaker 5: we won't because we can't because the state law that
Speaker 5: requires this kind of environmental assessment of climate change of facts.
Speaker 5: It's a version of our National Environmental Policy Act called
Speaker 5: the Montana Environmental Policy Actor MIPA. Their argument was, MIPA,
Speaker 5: even if we wrote an extensive environmental impact statement documenting
Speaker 5: all of these impacts, we can't use that to deny
Speaker 5: permit for this development. Therefore, the court can't award any
Speaker 5: meaningful relief. Really astounding arguments that, by the way, I
Speaker 5: don't think the Montana Supreme Court is going to accept.
Speaker 3: And then you have in Hawaii the first time a
Speaker 3: state has settled a lawsuit with a group of young
Speaker 3: people over climate change.
Speaker 5: That's right, that's called the Navahine case. And in that case,
Speaker 5: our Children's Press was representing yet another group of young people,
Speaker 5: and they were challenging Hawaii's transportation system. Of course, Hawaii
Speaker 5: is an archipelago of I don't know how many islands,
Speaker 5: so a very complicated, you know, matter for the state
Speaker 5: to deal with. And so this case was teed up
Speaker 5: for trials starting in last June and just settled. They
Speaker 5: postponed the trial so they could negotiate an agreement, which
Speaker 5: they reached. Now, the difference between Montana and Hawaii is
Speaker 5: night and day. So Montana is a very hard right
Speaker 5: republican state, republican governor, republican ag republican legislature. Hawaii is
Speaker 5: the exact opposite. It's a liberal democratic, progressive government, governor, legislature,
Speaker 5: attorney general. And they were anxious frankly to avoid a
Speaker 5: trial because they agreed with the plaintiffs that climate change
Speaker 5: is a problem getting worse for Hawaii. We saw what
Speaker 5: happened in Maui unfortunately with those wildfires contributed at least
Speaker 5: in some part to what's happening with the weather out there.
Speaker 5: So that's the first settlement agreement where a state has
Speaker 5: agreed to make changes not only to their transportation policies,
Speaker 5: but actually start ramping up significant investments where they can
Speaker 5: in mass transit on the Big Island and Oahu, air
Speaker 5: travel is the biggest problem, So trying to figure out
Speaker 5: how are you going to deal with island hopping through
Speaker 5: airline travel is going to be a real challenge. But
Speaker 5: the point is they reached an agreement, they've got at
Speaker 5: least an initial plan for how to begin to reduce
Speaker 5: emissions from the transportation sector, and then they'll go from there.
Speaker 3: Does it make a difference that in Hawaii the constitution
Speaker 3: guarantees the right to a clean and healthful environment and
Speaker 3: the same in Montana that constitution also guarantees that. So
Speaker 3: does that make these two states different from most others?
Speaker 5: Yes, it does, And you're right, there's a right to
Speaker 5: a Clean and Healthy Environment provision in both Montana and Hawaii.
Speaker 5: Hawaii also has one of the strongest public trust doctrines
Speaker 5: in the United States, and that was a factor in
Speaker 5: the case as well. Other states that have a green amendment,
Speaker 5: New York, Pennsylvania. I would anticipate we're going to see
Speaker 5: lawsuits in those states trying to seek similar judgments from
Speaker 5: the state courts under those constitutional what we call green amendments,
Speaker 5: And frankly, I think there's a reasonable chance of success
Speaker 5: in both New York and Pennsylvania. There are other states
Speaker 5: with these green amendments, believe it or not. Alaska has one,
Speaker 5: Louisiana has one, Florida has one, and Our Children's Trust
Speaker 5: has litigation going on in all three of those states,
Speaker 5: in fact as litigation in every state. So we'll see
Speaker 5: what happens. But I think they're going to win on
Speaker 5: appeal in Montana. I think that's going to set a precedent.
Speaker 5: It's not going to have a lot of immediate practical
Speaker 5: effect in Montana because of the politics, but it is
Speaker 5: going to be a building block for other state courts
Speaker 5: to build on. No court likes to be the first
Speaker 5: to make a decision like this, but many courts are
Speaker 5: prepared to be the second or third to do that.
Speaker 5: The settlement in Hawaii shows that what the plintiffs are
Speaker 5: seeking is not unreasonable, is not undoable, but with the
Speaker 5: right kind of political receptivity, things can be done to
Speaker 5: improve the situation. So it's early days of this form
Speaker 5: of state based climate litigation, but for me, that is
Speaker 5: the future. That's where climate litigation, if it has some
Speaker 5: chance of success, that's where it's going to find it.
Speaker 3: I want to touch on another case not involving young plaintiffs,
Speaker 3: because Junolulu is a plaintiff in a climate case against
Speaker 3: Snoko and other big oil companies, accusing them of misleading
Speaker 3: the public by concealing their understanding of the devastating effects
Speaker 3: of global warming. So now a coalition has appealed that
Speaker 3: decision to the Supreme Court, and the Supreme Court has
Speaker 3: asked the Biden administration for its views. Does that mean
Speaker 3: some of the justices are interested in this and how
Speaker 3: bad would if the Supreme Court took this case?
Speaker 5: Yes, that does mean that some justices are interested in this.
Speaker 5: There was an earlier petition from the Eighth Circuit Court
Speaker 5: of Appeals in a case brought by Minnesota, where the
Speaker 5: Supreme Court declined to take the case, but Justice Kavanaugh
Speaker 5: wrote a short dissense saying, I think some of the
Speaker 5: issues being raised by the oil industry deserve review in
Speaker 5: our court. So he has signaled an interest in these cases,
Speaker 5: and by requesting the views of the Solicitor General, which
Speaker 5: of course this court may simply ignore it has before,
Speaker 5: that does say that there's some interest at least in
Speaker 5: thinking harder about whether now is the time to review
Speaker 5: these cases. This is the case from Honolulu. It hasn't
Speaker 5: gone to trial, so there's no final judgment. I've made
Speaker 5: the argument in writing that I don't think the Supreme
Speaker 5: Court actually has jurisdiction over a case from a state
Speaker 5: court where there's been no judgment. It's what's called an
Speaker 5: interlocutory appeal preliminary case. So what I'm hoping is that
Speaker 5: the court declines to take it, they don't need to
Speaker 5: take it. They probably this court probably is going to
Speaker 5: have the final word on these climate liability cases. There
Speaker 5: are now about thirty four cases pending in state court
Speaker 5: across the country, brought by state cities, counties. I think
Speaker 5: at some point there is likely to be a verdict Frankly,
Speaker 5: I don't know which one. There's going to be wins
Speaker 5: and losses probably along the way, but at some point,
Speaker 5: and maybe Hawaii will be one of those, I think
Speaker 5: there will be a verdict and a final judgment, and
Speaker 5: I think the Supreme Court will at some point take
Speaker 5: the case to determine whether or not as the oil
Speaker 5: industry is arguing, there is no remedy for climate change
Speaker 5: damages period in no court, not federal court, state court.
Speaker 5: That's their ultimate argument, and they're going to argue something
Speaker 5: they call absolute preemption, that courts have no business, no jurisdiction,
Speaker 5: no authority to adjudicate claims for damages against the oil industry,
Speaker 5: and at some point I think that is going to
Speaker 5: have to be settled by the US Supreme Court.
Speaker 3: A lot of climate litigation ahead of us. Thanks so much,
Speaker 3: Pat for helping us understand the landscape of climate litigation.
Speaker 3: That's Professor Pat Parento of the Vermont Law and Graduate School.
Speaker 3: And that's it for this edition of the Bloomberg Law Podcast.
Speaker 3: Remember you can always get the latest legal news by
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Speaker 3: and at Bloomberg dot com. Slash Podcast, Slash Law. I'm
Speaker 3: June Grosso and this is Bloomberg