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10 Commandments & Trump Climate Whiplash · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: Louisiana's law requiring the Ten Commandments be displayed in public
0:13
Speaker 2: school classrooms is making its way up to the Supreme Court.
0:17
Speaker 2: The constitutionality of the law is now before the US
0:20
Speaker 2: Court of Appeals for the Fifth Circuit after a federal
0:23
Speaker 2: judge said the requirement violated the First Amendment. The case
0:28
Speaker 2: has implications outside Louisiana, as lawmakers in other state houses
0:33
Speaker 2: have begun to propose similar laws, joining me his First
0:37
Speaker 2: Amendment expert Caroline Malik Corbin, a professor at the University
0:40
Speaker 2: of Miami Law School. Caroline explain why the lower court
0:45
Speaker 2: blocked this Louisiana law.
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Speaker 3: So this all started when Louisiana passed the law mandating
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Speaker 3: that every single public school classroom in Louisiana from kindergarten
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Speaker 3: through high school through college post a King James version
1:02
Speaker 3: of the Ten Commandments. And naturally, this was challenged as
1:06
Speaker 3: violating the Establishment Clause that the clause in the First
1:11
Speaker 3: Amendment of the US Constitution that mandates some degree of
1:15
Speaker 3: separation of church and state and lawsuits start in district court.
1:20
Speaker 3: And in some ways this was a really easy decision
1:23
Speaker 3: for the district court because the US Supreme Court had
1:28
Speaker 3: addressed a very similar statute forty five years ago. Forty
1:33
Speaker 3: five years ago, Kentucky had passed a law that mandated
1:38
Speaker 3: every single public school classroom posts the Ten Commandments, and
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Speaker 3: the US Supreme Court said, this violates the Establishment clause,
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Speaker 3: is completely unconstitutional. There's no secular reason to have ten
1:53
Speaker 3: Commandment texts in public schools, and laws passed by governments
2:00
Speaker 3: has to have a primarily secular reason. Otherwise is it's
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Speaker 3: a primarily religious reason.
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Speaker 1: That's getting a.
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Speaker 3: Bit like a theocracy. And so when the case came
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Speaker 3: before the District Court, it had a precedence from the
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Speaker 3: Supreme Court directly on point that held that laws mandating
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Speaker 3: ten Commandments in public school classrooms violates the Establishment Corse, did.
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Speaker 2: The Supreme Court in nineteen eighty two did they change
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Speaker 2: the test that they had used in that case.
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Speaker 3: So here's what's going on since nineteen eighty when this
2:38
Speaker 3: decision was made. We have a very different Supreme Court
2:42
Speaker 3: and we have very different Supreme Court rules. And that's
2:47
Speaker 3: what Louisiana has binking on because at the time the
2:51
Speaker 3: first case was decided, there was particular doctrine that controlled
2:57
Speaker 3: the test that's known as a Lemon test. Now the
3:00
Speaker 3: current Supreme Court has jettison that test, and it said
3:04
Speaker 3: the way we're going to decide whether something violates separation
3:07
Speaker 3: church and state is we're going to look at history
3:09
Speaker 3: and tradition. And history and tradition is highly manipulable and
3:15
Speaker 3: very contested. But Louisiana is probably banking on the Supreme
3:20
Speaker 3: Court's willingness sort of construct history and uncover traditions that
3:27
Speaker 3: would support Ten Commandments in public schools. So the answer is,
3:32
Speaker 3: the doctrine has changed, court has changed. We currently have
3:36
Speaker 3: a court that is much more receptive to Christianity and
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Speaker 3: public schools, and it's not at all clear what it's
3:43
Speaker 3: going to do when it revisits this case.
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Speaker 2: Louisiana said that the law was passed to teach students
3:50
Speaker 2: about the Ten Commandments' importance to the American legal system.
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Speaker 4: That was one of their arguments.
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Speaker 3: They had many arguments. Yes, So there are lots of
4:00
Speaker 3: different strategies that you could use when accused of violating
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Speaker 3: the Establishment clause, and one of them and I just
4:10
Speaker 3: finished a paper sort of addressing precisely this question. So
4:13
Speaker 3: I delighted that you're having me on to talk about it.
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Speaker 3: So one of these strategies is what I am calling
4:20
Speaker 3: secular washing, and that's when something that is inherently religious,
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Speaker 3: an inherent religious symbol, inherentlygigious text like a giant Latin
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Speaker 3: cross or the Ten Commandments from the Holy Bible, is
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Speaker 3: recharacterized as something that's actually secular. And so one of
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Speaker 3: the things that Louisiana is trying to do is argue
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Speaker 3: that these Ten Commandments, this is not religion, this is history.
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Speaker 3: It's just history, and therefore, you know, it's not really
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Speaker 3: problematic at all under the establishment clause. It's not even
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Speaker 3: about really, so what's all the fuss about the history
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Speaker 3: of our country, the importance of the Ten Commandments to
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Speaker 3: our law, and the importance of the Ten Commandments to
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Speaker 3: our values. This is again the bottom line with secular washing,
5:16
Speaker 3: is trying to recharacterize something that is obviously religious, but
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Speaker 3: to claim that no, it's not really it's actually secular
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Speaker 3: if you truly understood what it was all about.
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Speaker 2: The attorney for the challengers try to stress the religious
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Speaker 2: intent of the law's author, who he quoted as saying,
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Speaker 2: it's so important that our children learn what God says
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Speaker 2: is right and what he says is wrong.
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Speaker 3: Yes, the claim that this is about history is ridiculous.
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Speaker 3: It's clearly about trying to reintroduce Christianity into the public schools.
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Speaker 3: And the sponsors themselves, as you started to cite, are
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Speaker 3: not really hiding the fact. The litigators might be trying
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Speaker 3: to to cover up the religious motivation behind the law,
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Speaker 3: but the sponsors were quite clear it was about making
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Speaker 3: sure children understood God's words.
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Speaker 2: How does Louisiana defend against the fact that there are
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Speaker 2: references to God and the Sabbath in the first four Commandments, the.
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Speaker 3: First five commandment, they're all religious. I am your God,
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Speaker 3: you shall have no other God. You shall not take
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Speaker 3: my name in vain. You should observe the Sabbath. The
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Speaker 3: first five are religious commandments. There's absolutely nothing secular about them,
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Speaker 3: and even the others are not altogether secular. Honor thy
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Speaker 3: Mother and Father, but it's ultimately a religious obligations. Kind
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Speaker 3: of a hard argument to make that this is not religious.
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Speaker 3: I mean, it is from the Holy Bible. But again,
6:52
Speaker 3: what Louisiana is banking on is that the Supreme Court
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Speaker 3: is not going to analyze whether it's religious or not.
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Speaker 3: What instead it's going to do is ask is there
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Speaker 3: a history and traditions of Ten Commandments in public schools?
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Speaker 3: And if there is, then we're going to find it constitutional,
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Speaker 3: because that's the new test the Roberts Court has created
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Speaker 3: for challenges like these. The question is is this a
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Speaker 3: long standing religious practice? If it is, we're going to
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Speaker 3: find it constitutional.
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Speaker 2: Well, I mean, is there a history of having the
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Speaker 2: Ten Commandments in public schools?
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Speaker 3: So the answer is no and definitely no. Another tactic. Again,
7:41
Speaker 3: there are lots of strategies that courts use. Part of
7:45
Speaker 3: the challenge when you're trying to define whether a practice
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Speaker 3: is deeply rooted in our history, whether there's a long
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Speaker 3: standing tradition of a particular practice, is how you define
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Speaker 3: the practice. Defining the practice is really key, and the
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Speaker 3: State of Louisiana is trying to define the practice as
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Speaker 3: any appearance of the Ten Commandments in public schools, although
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Speaker 3: the more accurate is is there a long history? Is
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Speaker 3: there a practice of posting Ten Commandment posters in public schools?
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Speaker 1: And that matters?
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Speaker 3: That matters because the Supreme Court has never completely banned
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Speaker 3: the Bible or the Ten Commandments from public schools. It
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Speaker 3: is entirely constitutional to talk about the Ten Commandments in
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Speaker 3: a secular course of study. So if you're studying literature,
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Speaker 3: for example, absolutely you could study the King James Bible,
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Speaker 3: which is a masterpiece of writing. Or if you're in
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Speaker 3: a world histories class, obviously you can compare and contrast
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Speaker 3: the Holy Commandments of different religions. But the thing you're
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Speaker 3: not supposed to be able to do is to cosletize
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Speaker 3: or priests or try and teach religious tenants as the
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Speaker 3: true word of God. That is what is forbidden in class.
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Speaker 3: So it's neither here nor there.
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Speaker 1: If people have.
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Speaker 3: Studied the Ten Commandments in class in public school before,
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Speaker 3: the question is have they posted Ten Commandments on the
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Speaker 3: walls as a way of bringing children closer to God?
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Speaker 3: That's the real question, And the answer to that question
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Speaker 3: is absolutely not. There is no history of any such thing.
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Speaker 3: One of the things that the district Court did was
9:39
Speaker 3: listen to an expert on this sac subject testify about
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Speaker 3: the history of religion in early common schools up through today,
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Speaker 3: and he said, absolutely, there is no history whatsoever of
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Speaker 3: Ten Commandment displays and public school and Louisiana hasn't offered
10:03
Speaker 3: any evidence either. Again, the test is is there a
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Speaker 3: history and tradition of this particular practice, this particular practice
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Speaker 3: ten Commandments posters. The answer is no, and Louisiana has
10:17
Speaker 3: no evidence.
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Speaker 2: Otherwise, this is expected to go to the Supreme Court.
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Speaker 2: Do you think that this posting of the Ten Commandments
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Speaker 2: goes even too far for this court, which favors religion
10:28
Speaker 2: in almost every case it comes up in.
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Speaker 3: I don't know, I really don't. This court seems to
10:35
Speaker 3: have been welcoming religion into all areas of the government
10:43
Speaker 3: where has previously been unconstitutional. It looks like it's about
10:49
Speaker 3: to remake Establishment Cause doctrine when it comes to funding religion. Again.
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Speaker 3: This is a court that upheld a giant Latin cross
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Speaker 3: a government and cross monument as perfectly constitutional. This is
11:04
Speaker 3: a court that has held that a coach on duty
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Speaker 3: may pray in the middle of football fields immediately after
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Speaker 3: games in front of his students, despite three prior Establishment
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Speaker 3: Clause decisions suggesting that's not constitutional. So I don't know
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Speaker 3: where the Supreme Court draws the line, and I have
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Speaker 3: no confidence that it's going to draw the line here.
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Speaker 1: Now.
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Speaker 3: I sure hope I'm wrong, but I can't confidently say
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Speaker 3: one way or the other.
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Speaker 2: I mean, it seemed like this Fifth Circuit panel, which
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Speaker 2: was one Reagan appointee, one Clinton appointee, and one Obama appointee,
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Speaker 2: seem pretty critical of Louisiana's position.
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Speaker 3: It's blatantly unconstitutional under any test, and certainly under Supreme
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Speaker 3: Court president that has not yet been over ruled. It's
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Speaker 3: obviously unconstitutional. There's no question that it's unconstitutional. And again,
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Speaker 3: to the extent that Louisiana tried to create a history
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Speaker 3: and tradition of Ten Commandments in public schools, its proof
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Speaker 3: was really weak. I mean, part of their proof was
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Speaker 3: a quotation from James Madison that they've just made up.
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Speaker 4: What was that?
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Speaker 3: Here is the quotation in the Legislative History History Records
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Speaker 3: that James Madison, the fourth President of the United States,
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Speaker 3: stated that we have staked the whole future of our
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Speaker 3: new nations upon the capacity of each of ourselves to
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Speaker 3: govern ourselves according to the moral principles of the Ten Commandments.
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Speaker 3: He never said that they have been called on that.
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Speaker 3: And again they have trying to construct a history and
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Speaker 3: tradition for the Supreme Court of Ten Commandments in public schools.
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Speaker 3: The best they can come up with are three different
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Speaker 3: textbooks that included it, So they have no history of
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Speaker 3: actual displays or posters, just textbooks that might have included
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Speaker 3: the Ten Commandments, and that's really the extent of it.
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Speaker 3: And of course one of them existed before the country
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Speaker 3: was formed. That was used for colonies, which is not
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Speaker 3: really very informative, and it was also buriantly anti Catholic, right,
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Speaker 3: the part of their history is relying on Protestant practices
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Speaker 3: that reflect virulent anti Catholicism, which in other contexts the
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Speaker 3: Court has said, we will not find this history dispositive
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Speaker 3: in our constitutional inquiry.
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Speaker 2: Their argument that the controversy, you know, it wasn't ripe
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Speaker 2: and the challenges don't have standing.
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Speaker 3: I mean again, a common tactic for trying to jodge
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Speaker 3: an establishment clause violation, in addition to secular washing, is
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Speaker 3: to claim that the plaintiffs don't have standing. That is,
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Speaker 3: in this case, they say it's too early to bring
14:02
Speaker 3: this claim. It hasn't actually been put into effect yet.
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Speaker 3: So more specifically, they're saying it's brought too early. It's
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Speaker 3: the legal term is unripe. It's not ripe. There's not
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Speaker 3: enough of a record. But Frankly, you don't need any
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Speaker 3: more information than is already present to decide whether it's
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Speaker 3: unconstitutional or not. They're clearly hoping that this will be
14:27
Speaker 3: a vehicle for the Supreme Court to overrule its prior
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Speaker 3: precedents holding you can't bost Christian dogma onto public school students.
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Speaker 3: They're trying to overrule the prior case, and so the
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Speaker 3: question will be will the Robberts Court take this invitation
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Speaker 3: and happily overrule prior precedent and allow religion into the
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Speaker 3: public schools, and not just religion Christianity. These are Christian
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Speaker 3: Ten Commandments.
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Speaker 4: And even Christianity.
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Speaker 2: I mean, that's the Saint James version exactly right.
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Speaker 3: People say, oh, but Jews have the Ten Commandments. Yes,
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Speaker 3: they do, but their ten Commandments are different than the
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Speaker 3: ones posted, and the Catholic Ten Commandments are also different.
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Speaker 3: So not only is the Ten Commandments favoring Christianity, it's
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Speaker 3: favoring one branch of Christianity over others. And if the
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Speaker 3: establishment clause means anything, it's that the government can't favor
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Speaker 3: some religions over others. And that is inevitably what happens
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Speaker 3: when a school posts the Ten commandments in its classrooms.
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Speaker 2: It'll be interesting to see how this fifth Circuit Panel
15:46
Speaker 2: with two Democratic appointees on it rules in this case.
15:50
Speaker 2: Thanks so much, Caroline. That's Professor Caroline Malacorbin of the
15:54
Speaker 2: University of Miami Law School. Coming up next. Trump lays
15:59
Speaker 2: the groundwork for a sweeping anti climate agenda. I'm June
16:03
Speaker 2: gross when you're listening to Bloomberg In the dizzy number
16:07
Speaker 2: of executive orders President Donald Trump signed on day one,
16:11
Speaker 2: where a series of orders laying the groundwork for a
16:15
Speaker 2: sweeping overhaul of US energy policy, putting the weight of
16:19
Speaker 2: the federal government behind fossil fuel production and pulling back
16:24
Speaker 2: from the fight against climate change. Trump insists his drill Baby,
16:28
Speaker 2: drill program will bring down prices and inflation.
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Speaker 1: It just works that way. It just economically works that way.
16:36
Speaker 4: When the oil comes down, its will bring down prices.
16:39
Speaker 2: Then you won't have inflation, and then the interest rates
16:42
Speaker 2: will come down. My guest is an expert in environmental law,
16:45
Speaker 2: Pat Parento, a professor with the Vermont Law and Graduate School.
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Speaker 4: Let's start.
16:50
Speaker 2: Trump declared a national energy emergency on day one. What
16:55
Speaker 2: does that allow him to do?
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Speaker 1: Well? Declaration of a national emergency just generally does quote
17:05
Speaker 1: unlock certain provisions of federal law. But it's a statute
17:10
Speaker 1: by statute kind of thing. The declaration itself doesn't do anything.
17:16
Speaker 1: It's a predicate for what's to come next. So now
17:20
Speaker 1: you have to go through individual statutes. For example, offshore
17:25
Speaker 1: oil and gas leasing that's governed by the Outer Continental
17:29
Speaker 1: Shelf Lands Act. If it's an online oil and gas development,
17:33
Speaker 1: the drill, baby drill, the mantra that's governed by a
17:37
Speaker 1: law known as the Federal Land Policy and Management Act,
17:41
Speaker 1: and so on and so forth. So the orders themselves
17:45
Speaker 1: are a clarion call, right, and a policy announcement clearly
17:50
Speaker 1: and a direction that the administration is going to go.
17:54
Speaker 1: But legally it's going to go statute by statute, and
17:58
Speaker 1: in fact, project by project, whether you're talking about a
18:01
Speaker 1: gas pipeline or an oil pipeline or an LNG terminal
18:06
Speaker 1: or whatever, it's gonna go, you know, project by project,
18:10
Speaker 1: law by law.
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Speaker 2: He also ordered quarterly meetings of a committee of cabinet
18:15
Speaker 2: level officials known as the Gods Squad.
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Speaker 4: What is the God Squad?
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Speaker 2: They've only met a handful of times over the past four.
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Speaker 1: Decades, right, and I've been the only lawyer who has
18:27
Speaker 1: appeared in all four of the god Squad proceeding. So
18:32
Speaker 1: you're talking to you.
18:33
Speaker 4: I don't know if or bad I'm trying to.
18:36
Speaker 1: I don't know. I can tell you this. The Endangered
18:39
Speaker 1: Species Committee is not a standing committee. Okay, it doesn't
18:43
Speaker 1: meet quarterly or regularly at all. In fact, it can
18:48
Speaker 1: only meet as the Endangered Species Committee when there is
18:52
Speaker 1: an application in front of it that meets really specific
18:57
Speaker 1: statutory criteria that I had a hand in drafting, and
19:03
Speaker 1: the most basic one is there can be no exemption
19:06
Speaker 1: process unless there's what's called an irreconcilable conflict between a
19:13
Speaker 1: specific project. Maybe it's a water project, a highway project,
19:18
Speaker 1: timber sale project, but there has to be a really
19:21
Speaker 1: specific project federally authorized or undertaken, and it then has
19:26
Speaker 1: to conflict with the commands under Section seven of the
19:31
Speaker 1: Endangered Species Act, meaning the activity in question has to jeopardize.
19:35
Speaker 1: That's the term the continued survival of a listed species
19:39
Speaker 1: endangered or threatened, right, So we don't have anything like that,
19:43
Speaker 1: As you point out, there hasn't been one since the
19:46
Speaker 1: spotted owl got Squad proceeding. Where I was the owl's lawyer,
19:51
Speaker 1: if you will, because I was the special counsel appointed
19:55
Speaker 1: to the Fish and Wildlife Service to present the case
20:00
Speaker 1: for preserving the owl's habitat to the God Squad. So
20:03
Speaker 1: there hasn't been one since nineteen ninety two, it's my point.
20:07
Speaker 1: And there is nothing on the horizon that would give
20:10
Speaker 1: rise to convening the God Squad.
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Speaker 2: Pat I wish I could say I was once the
20:15
Speaker 2: spotted owl's lawyer. That's so No, No, Really, saving an
20:19
Speaker 2: endangered species is a higher calling in my book. Back
20:23
Speaker 2: to the executive orders now, so Trump is trying to
20:25
Speaker 2: speed up project reviews using emergency consultations under the Endangered
20:31
Speaker 2: Species Act, which is usually reserved for natural disasters. And
20:37
Speaker 2: Noah Greenwald, he's the Endangered Species program director the Center
20:41
Speaker 2: for Biological Diversity, said this executive order is a death
20:45
Speaker 2: warrant for polar bears, lesser prairie chickens, whooping cranes, and
20:50
Speaker 2: so many more species on the brink of extinction.
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Speaker 4: Is he right?
20:55
Speaker 1: Well? I love Noah, but I wouldn't go so far
20:58
Speaker 1: as to say it's a death warrant. Okay, it's a
21:00
Speaker 1: threat from this administration to use the exemption process and
21:06
Speaker 1: the accelerated consultation process to speed up fossil fuel development.
21:11
Speaker 1: But here's the thing again, there's law that has to
21:15
Speaker 1: be followed. You don't just wave your arms and sign
21:17
Speaker 1: a piece of paper calling it an order and then
21:21
Speaker 1: you start building stuff. That's not the way it works.
21:25
Speaker 1: So if, in fact, the Secretary of Interior, the Secretary
21:29
Speaker 1: of the Department of Energy, or some other cabinet official
21:33
Speaker 1: starts authorizing projects that conflict with the Endangered Species Act
21:37
Speaker 1: that don't go through the full formal consultation process, I'm
21:41
Speaker 1: sure that the Centers for Biological Diversity will be the
21:45
Speaker 1: first one to file a lawsuit, and they're going to
21:48
Speaker 1: win because here's the thing. The emergency consultation procedures are
21:53
Speaker 1: triggered by disasters that threaten human life and property. Where
21:58
Speaker 1: is that happening. That's happening in California, for sure, but
22:03
Speaker 1: it's not the result of the Endangered Species Act. Here
22:05
Speaker 1: comes the punchline. It's climate stupid. So that's what's threatening
22:12
Speaker 1: natural disasters right now. It's not water management in California,
22:17
Speaker 1: it's climate change accelerating and exacerbating the wildfire problems in
22:22
Speaker 1: California has always had, So I'm not ready to say
22:24
Speaker 1: that just because Trump issued in order, species are going
22:27
Speaker 1: to go extinct, not without a hell of a fight anyway.
22:30
Speaker 2: Pat is he trying to blame the water crisis in
22:33
Speaker 2: California on that little fish?
22:35
Speaker 1: Yes, he is. Although the delta smelt he's called the
22:38
Speaker 1: delta smelt out. The Delta smelt, by the way, now
22:41
Speaker 1: exists in captivity. It's functionally extinct in the wild. That's
22:46
Speaker 1: happened with other species like the California condor the blackfooted ferret.
22:50
Speaker 1: There's a number of species that have gotten to the
22:53
Speaker 1: point where they had to be taken into captive breeding
22:56
Speaker 1: programs and then reintroduced into the wild. That's the case
23:00
Speaker 1: with the Delta smelt. But here's the other thing. There
23:02
Speaker 1: are five species of fish, including two species of salmon,
23:07
Speaker 1: which are recreationally, commercially valuable and also valuable to the
23:11
Speaker 1: tribes in California. So there are five different species involved
23:15
Speaker 1: in the San Joaquin Delta where the Delta smelt habitat exists.
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Speaker 1: So it isn't one species, it's a whole suite. In fact,
23:22
Speaker 1: it's the whole ecosystem of the San Joaquin Delta that's
23:26
Speaker 1: at risk. Here.
23:28
Speaker 2: One promise he made repeatedly during the campaign was drill,
23:33
Speaker 2: baby drill.
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Speaker 4: That's his policy.
23:35
Speaker 2: And in his inaugural address he said, we will be
23:38
Speaker 2: a rich nation again, and it is that liquid gold
23:42
Speaker 2: under our feet that will help.
23:44
Speaker 4: Right.
23:45
Speaker 1: So here's the facts. That's a fact free statement, right.
23:49
Speaker 1: So the fact is the United States is the largest
23:54
Speaker 1: producer an exporter of oil and gas on the planet.
24:00
Speaker 1: And oil and gas development, contrary to a lot of
24:03
Speaker 1: climate activists, tremendously exponentially expanded under Biden in the last
24:09
Speaker 1: four years. So A, there is no energy emergency. B
24:15
Speaker 1: as to drill, baby drill. Here's the data. Twenty five
24:20
Speaker 1: million acres of federal lands on land oiling gas are
24:24
Speaker 1: under lease already not being developed. Twenty five million acres
24:28
Speaker 1: of public land. Secondly, there are nine thousand drilling permits
24:34
Speaker 1: that have been issued. They're not being developed either. Why
24:38
Speaker 1: not because there's a glut of oiling gas on the market.
24:42
Speaker 1: Why are gasoline prices at the pump the lowest they've
24:44
Speaker 1: been in seventy years? You're that right, seventy years. Go
24:48
Speaker 1: back and look it up. Not since the nineteen fifties
24:51
Speaker 1: have we seen prices this low at the pump. The
24:54
Speaker 1: reason is there is a glut of oil and gas
24:58
Speaker 1: on the market right now that could change course, but
25:01
Speaker 1: as of right now, there's no basis to declare an
25:05
Speaker 1: energy emergency. There certainly is a climate emergency, or if
25:08
Speaker 1: you want to look at it another way, the real
25:11
Speaker 1: energy emergency is the failure to convert and transition away
25:16
Speaker 1: from fossil fuels and to the cleaner sources of energy solar, wind,
25:21
Speaker 1: which of course Trump hates because it interferes with his
25:24
Speaker 1: golf course in Scotland. But beyond that, you know where
25:27
Speaker 1: is most of the renewable energy being developed right now?
25:30
Speaker 1: In Republican states Texas, Oklahoma, Iowa, and so forth. So
25:36
Speaker 1: the real emergency is we need to get on with
25:40
Speaker 1: the business of transitioning to cleaner, more efficient, and actually
25:44
Speaker 1: more profitable sources of energy.
25:47
Speaker 2: So, as you mentioned, he's been vocal about his dislike
25:50
Speaker 2: of wind for years. What is he trying to do
25:54
Speaker 2: with these executive orders and alternative energy like solar and wind.
25:59
Speaker 1: He's put up as he put it on offshore wind
26:04
Speaker 1: projects that are still in the permit process. There are
26:07
Speaker 1: nine of them that have already received their permits, and
26:10
Speaker 1: they aren't caught by the executive order, but there are
26:12
Speaker 1: seven others that are not finished with permitting, and so
26:16
Speaker 1: he's he's put a pause on them, and he's threatened
26:19
Speaker 1: to withdraw major portions of offshore wind areas, particularly in
26:24
Speaker 1: what he calls the Gulf of America, which the rest
26:27
Speaker 1: of the world still calls the Gulf of Mexico. And
26:30
Speaker 1: that's a problem or an issue that's going to have
26:32
Speaker 1: to go to the courts, because once again, the President
26:35
Speaker 1: does have authority to withdraw areas of the ocean from development,
26:39
Speaker 1: including I would acknowledge wind development, but again there's a
26:43
Speaker 1: practice by which you do that, including doing an environmental
26:46
Speaker 1: assessment and changing the leasing programs that already have been
26:51
Speaker 1: approved and so forth, so as to further development offshore,
26:56
Speaker 1: that'll be a subject of litigation as well. Here's the
27:00
Speaker 1: downside to all this is it is going to discourage investment.
27:04
Speaker 1: There's been a lot of interest from European Union nations
27:07
Speaker 1: like Norway and Denmark, which is pioneered a lot of
27:11
Speaker 1: offshore win and they want to invest hundreds of millions
27:14
Speaker 1: of dollars in offshore wind in the United States waters.
27:17
Speaker 1: But of course this particular period of time would probably
27:21
Speaker 1: discourage that kind of investment. So even though the orders
27:25
Speaker 1: may lack some legal foundation, they probably will have the
27:29
Speaker 1: desired effect of discouraging at least rapid development of wind
27:35
Speaker 1: and in some cases, probably stolar as well.
27:38
Speaker 2: City Group analysts have said that Trump's policies won't stop
27:42
Speaker 2: the transition to green energy, citing its economic viability and
27:47
Speaker 2: technological innovation. So in four years, how much damage do
27:51
Speaker 2: you think he can do to the advancement of clean energy.
27:55
Speaker 1: Through these orders and decisions and changes in rules and
27:59
Speaker 1: rollbacks of environmental rules. I think he's going to get
28:02
Speaker 1: tripped up repeatedly in court on those actions, but I
28:07
Speaker 1: do think we're losing an awful lot of momentum and opportunity.
28:10
Speaker 1: I do think there's going to be a discouraging effect
28:13
Speaker 1: on the investment market for the next four years that
28:16
Speaker 1: may take longer than that to rebound, And certainly, as
28:19
Speaker 1: he drives more and more people away from federal service,
28:22
Speaker 1: which he's intent on doing, that's going to have an
28:25
Speaker 1: institutional impact on our ability to recover from these four
28:30
Speaker 1: years and get back into the game of transitioning to
28:34
Speaker 1: renewable energy and cleaner energy sources. Including electric vehicles, all
28:38
Speaker 1: of which the marketplace is pushing. So I would agree
28:42
Speaker 1: with the comment that he can't stop the transition that's underway.
28:46
Speaker 1: He will certainly slow it down.
28:48
Speaker 2: Stay with me, Pat, Coming up next on the Bloomberg
28:50
Speaker 2: Lawn Show, I'll continue this conversation with Professor Pat Parento
28:54
Speaker 2: of the Vermont Law in Graduate School. Well talk about
28:57
Speaker 2: Trump's reversing course on electric vehicles, rescinding environmental justice initiatives,
29:04
Speaker 2: and dropping out of the Paris Accords for the second time.
29:07
Speaker 2: I'm June Grosso. When you're listening to Bloomberg. On day one,
29:11
Speaker 2: President Donald Trump signed a series of executive orders laying
29:15
Speaker 2: the groundwork for a sweeping overhaul of US energy policy,
29:20
Speaker 2: putting the weight of the federal government behind fossil fuel
29:23
Speaker 2: production and pulling it back from the fight against climate change.
29:27
Speaker 2: I've been talking to environmental law expert Pat Parento, a
29:31
Speaker 2: professor at the Vermont Law and Graduate School. You mentioned
29:34
Speaker 2: electric vehicles. He's reversing course on electric vehicles. What were
29:39
Speaker 2: the rules on electric vehicles in the Biden administration?
29:42
Speaker 1: So there are two of them. There's one called the
29:44
Speaker 1: tailpipe rule, which regulates tailpipe pollution from automobiles, primarily under
29:50
Speaker 1: the Clean Air Act. And the other one is the
29:52
Speaker 1: fuel Economy rule that the Department of Transportation, through the
29:56
Speaker 1: National Highway Transportation Safety Administration, or NITSA as it's called, adopts.
30:02
Speaker 1: These are the CAFE, the corporate average fuel economy standards
30:06
Speaker 1: that get promulgated every few years. Right, So, both EPA
30:11
Speaker 1: under Biden and NITSA under Biden adopted strong tailpipe and
30:16
Speaker 1: fuel efficiency rules. They don't quote mandate electric vehicles. They
30:21
Speaker 1: do anticipate that the standards put in place will move
30:25
Speaker 1: more of the automotive fleet in the United States towards
30:29
Speaker 1: electric vehicles and plug in hybrids. And in fact, it's
30:32
Speaker 1: really the plug in hybrid market the one that's the
30:35
Speaker 1: most promising and the most robust right now because a
30:39
Speaker 1: lot of people and myself included, have you know, electric
30:43
Speaker 1: vehicles that have very limited range capacity because there aren't
30:47
Speaker 1: enough charging stations. That was another thing that Biden administration
30:51
Speaker 1: was investing billions in building out charging stations across the country.
30:55
Speaker 1: And I'm sure we're going to see both Trump and
30:58
Speaker 1: probably the Republican Congress cutting back on some of those
31:01
Speaker 1: investments as well, all of which is not good news
31:04
Speaker 1: for a rapid uptake, as they say, of electric vehicles,
31:09
Speaker 1: but it isn't going to stop electric vehicles. Large auto
31:12
Speaker 1: manufacturers like Ford and others have actually supported these really
31:18
Speaker 1: strong measures on tailpipe standards in fuel economy. They see
31:22
Speaker 1: what's happening with the innovative technologies that are being spurred
31:26
Speaker 1: frankly by places like countries like China, which is building
31:30
Speaker 1: electric vehicles left and right. China is also the largest
31:33
Speaker 1: producer of solar panels in the world, so we're feeding
31:36
Speaker 1: economic development to China with these policies and orders that
31:41
Speaker 1: are coming out of the White House. We're not advancing
31:44
Speaker 1: America first. We're not advancing America dominance. We're going in
31:48
Speaker 1: the opposite direction of where the market is going.
31:51
Speaker 2: This is no surprise. He's rescinding environmental justice initiatives. So
31:56
Speaker 2: there are nearly eighty Biden administration initiatives.
32:00
Speaker 4: What kind of damage does this do?
32:02
Speaker 1: This is terrible. This is another part of what we're
32:05
Speaker 1: seeing out of this administration is outright cruelty the people.
32:09
Speaker 1: There's no question but what black, brown, and low income
32:13
Speaker 1: communities across the country have for decades been subject to
32:17
Speaker 1: disproportionate health and environmental impacts. That's where all the really
32:22
Speaker 1: hazardous facilities are cited, whether it's dumping grounds for toxic
32:28
Speaker 1: chemicals and toxic waste, or whether it's oil refineries, whatever
32:33
Speaker 1: it is, Cancer Alley in Louisiana, for example. These are
32:37
Speaker 1: communities that have suffered from disproportionate environmental impacts for decades,
32:41
Speaker 1: and finally we had an administration who took seriously the
32:46
Speaker 1: ethical and the moral obligation to stop that and to
32:51
Speaker 1: bring attention to bear on places where people are getting
32:56
Speaker 1: elevated levels of cancer, dying prematurely, having miscarriages, and all
33:01
Speaker 1: kinds of really serious health and well being impacts. And
33:06
Speaker 1: the truth is that we have not devoted enough time
33:09
Speaker 1: through environmental laws, through permitting and licensing, to avoid burdening
33:14
Speaker 1: these communities with ever more life threatening health threatening activities,
33:20
Speaker 1: and also creating the enforcement capability to target those areas
33:25
Speaker 1: where people are dying and getting sick and bringing enforcement
33:29
Speaker 1: actions through EPA and the Department of Justice to clean
33:33
Speaker 1: it up and to stop it and to protect people.
33:36
Speaker 1: We've also seen last week that Trump has ordered five
33:40
Speaker 1: all five of the Section chiefs in the Department of
33:43
Speaker 1: Justice that are in charge of the environmental enforcement sections
33:47
Speaker 1: of Justice. He's reassigned them to immigration. I don't know
33:51
Speaker 1: exactly what they're going to be doing on immigration. They're
33:53
Speaker 1: environmental lawyers. They're the lawyers that are leading the effort
33:57
Speaker 1: in the United States to keep unity safe, to bring
34:01
Speaker 1: polluters to justice, and he's decimating the capability of these
34:06
Speaker 1: agencies to do that. That's the real harm that we're seeing.
34:09
Speaker 2: His administration has stopped all pending environmental litigation, that includes
34:14
Speaker 2: pending settlements and consent decrees.
34:17
Speaker 4: But aren't they going to need.
34:19
Speaker 2: Environmental lawyers to be fighting all the lawsuits that are
34:22
Speaker 2: going to come down because of these executive orders.
34:25
Speaker 1: Well, that's the irony of what's going on here. By
34:28
Speaker 1: taking out senior career professionals in the federal agencies, it's
34:34
Speaker 1: actually going to make what Trump wants to do even
34:36
Speaker 1: harder to do. It'll mean that instead of carefully following
34:40
Speaker 1: the law, crossing the t's, dotting the eyes and all
34:43
Speaker 1: of that, they're going to keep making the kinds of
34:45
Speaker 1: mistakes they did in the first round in Trump's first administration.
34:50
Speaker 1: In their hurry to do this in the demand or
34:53
Speaker 1: you know, to be loyal to the president, not loyal
34:56
Speaker 1: to the rule of law. They're going to make all
34:58
Speaker 1: kinds of mistakes. But here's the it takes time to
35:02
Speaker 1: chase down all these things. That's another strategy here is,
35:05
Speaker 1: you know, flood the zone, throw so many things out
35:08
Speaker 1: there that people will be dispersed and can't keep up
35:12
Speaker 1: with everything he's doing. Can't get all these cases into
35:15
Speaker 1: court and get them heard, get them reversed. That's what
35:18
Speaker 1: they're counting on, I think is just do so much
35:22
Speaker 1: that some stuff is just going to go through because
35:24
Speaker 1: there isn't enough opposition on the other side, and there
35:27
Speaker 1: isn't enough time to get them all turned around or overturned. Right,
35:31
Speaker 1: So eventually I think you're going to see that happening.
35:35
Speaker 1: It'll be later in the four years. But you know,
35:39
Speaker 1: apparently the strategy is stop us if you can.
35:42
Speaker 2: So he rescinds Biden rules. Do most of the things
35:46
Speaker 2: he wants to do require federal rule making.
35:52
Speaker 1: Yeah, the big things, do you know, the tail Fife rule,
35:54
Speaker 1: the power plant rule, the methane rule, a lot of
35:59
Speaker 1: the rules under the Clean Air Act and Clean Water
36:01
Speaker 1: Act that Biden adopted, and Endangered Species Act and the
36:05
Speaker 1: National Environmental Policy Act. All of those rules that are
36:08
Speaker 1: on the books are going to have to go through
36:10
Speaker 1: notice and comment rule making under the Administrative Procedure Act,
36:13
Speaker 1: and they're all going to be subject to challenge in
36:16
Speaker 1: various courts, sometimes district courts, sometimes courts of appeal. So
36:20
Speaker 1: that's the process that we're now in, and as I say,
36:23
Speaker 1: it's going to take years, and he'll be gone actually
36:26
Speaker 1: before a lot of these cases are resolved. And who
36:29
Speaker 1: knows what's going to happen after he's out of office
36:32
Speaker 1: and who comes in next. That's another big question mark.
36:34
Speaker 2: So in an executive order entitled Putting America First in
36:39
Speaker 2: International Environmental Agreements, he withdrew from the Paris Accord for
36:44
Speaker 2: the second time.
36:45
Speaker 4: What's the impact of that.
36:47
Speaker 1: Well, the impact is to certainly slow down the rate
36:52
Speaker 1: at which countries that are signatory to the Climate Treaty
36:58
Speaker 1: are upping their commitment. You know, Biden made a very
37:02
Speaker 1: strong commitment to cut our missions in half. That's not
37:04
Speaker 1: going to happen now. Of course, by twenty thirty. I
37:07
Speaker 1: wouldn't overstate this because several countries, in response to what
37:13
Speaker 1: Trump has announced, including China, have said, you know what,
37:17
Speaker 1: we are going to stick with the international process under
37:22
Speaker 1: the Paris Treaty of Paris Agreement. In fact, China is
37:25
Speaker 1: saying we're going to up our game, and we see
37:27
Speaker 1: the as said this before, we see the economic advantage
37:30
Speaker 1: of building more clean energy and providing more of the
37:34
Speaker 1: rare earth materials that are required for electric vehicles and
37:38
Speaker 1: other green energy.
37:39
Speaker 2: Right.
37:40
Speaker 1: So it's going to be a mix. I mean, it's
37:42
Speaker 1: not a good thing, but I don't think it's going
37:45
Speaker 1: to mean that all progress is going to come to
37:46
Speaker 1: a screeching halt by any means. The other thing is,
37:49
Speaker 1: once again, as we saw before, we're going to see
37:52
Speaker 1: states and cities and counties stepping up and doing the
37:55
Speaker 1: best they can anyway to fill some of the gaps. California,
37:59
Speaker 1: the fifth large economy in the world, has already announced
38:03
Speaker 1: that it's going to make up for the fact that
38:05
Speaker 1: the Trump administration is going to not be building as
38:08
Speaker 1: much charging stations to support electric vehicles. They are going
38:11
Speaker 1: to be putting very significant money into that. They may
38:15
Speaker 1: expand their cap and trade program. Other states are looking
38:18
Speaker 1: to join that program. The state of Washington has adopted
38:22
Speaker 1: a carbon tax, which has been renewed by a popular
38:26
Speaker 1: referendum in Washington state, so Vermont, my little Vermont, has
38:30
Speaker 1: adopted a climate super fun law to go after the
38:33
Speaker 1: oil companies to get money for adaptation. We're going to
38:36
Speaker 1: see those kinds of efforts picking up, at least over
38:39
Speaker 1: the period of time that Trump's in office. This time.
38:42
Speaker 1: It won't make up for all of the losses of
38:45
Speaker 1: momentum and opportunity that Trump is going to cost us.
38:48
Speaker 1: It won't make up for that, but it'll upset some
38:51
Speaker 1: of it, and it'll at least keep us fighting for
38:54
Speaker 1: trying to get to the point where we really are
38:57
Speaker 1: seriously reducing the emissions that are causing the kinds of
39:00
Speaker 1: health scapes that we're seeing in La County.
39:03
Speaker 2: Right now, I'm waiting for the first lawsuits to be
39:06
Speaker 2: filed over these environmental orders.
39:09
Speaker 4: We shall see. Thanks so much. Pat.
39:12
Speaker 2: That's Professor Pat Parento of the Vermont Law and Graduate School.
39:16
Speaker 2: And that's it for this edition of The Bloomberg Law Show.
39:19
Speaker 2: Remember you can always get the latest legal news on
39:21
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39:26
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39:34
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39:35
Speaker 4: Wall Street Time.
39:37
Speaker 2: I'm June Grosso and you're listening to Bloomberg