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Tariffs Struck Down, Erasing History & Climate Rule Revoked · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
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Speaker 2: The Supreme Court struck down President Donald Trump sweeping global tariffs,
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Speaker 2: under cutting his signature economic policy. In a six to
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Speaker 2: three vote that crossed ideological lines. The justices handed Trump
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Speaker 2: his most significant legal defeat since returning to the White House.
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Speaker 2: The majority, including two Trump appointees, found that the President
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Speaker 2: exceeded his authority by invoking a federal emergency powers law
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Speaker 2: to impose his global tariffs. Trump lashed out at the
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Speaker 2: decision and the justices who ruled against him.
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Speaker 3: The Supreme Court's ruling on tariffs is deeply disappointing, and
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Speaker 3: I'm ashamed of certain members of the Court, absolutely ashamed
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Speaker 3: for not having the courage to do what's right for
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Speaker 3: our country. I'd like to thank and congratulate Justices Thomas, Alito,
1:05
Speaker 3: and Kavanaugh for their strength and wisdom and love of
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Speaker 3: our country.
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Speaker 2: Of course, the three justices congratulated by Trump dissented from
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Speaker 2: the opinion. Joining me is international trade attorney Dave Townsend,
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Speaker 2: a partner at Dorsey and Whitney.
1:22
Speaker 1: Dave.
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Speaker 2: Chief Justice John Roberts wrote the majority opinion, and it
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Speaker 2: was basically a textual analysis finding that the text of IIPA,
1:32
Speaker 2: the International Emergency Economic Powers Act, didn't authorize the president
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Speaker 2: to impose tariffs. He wrote, when Congress grants the power
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Speaker 2: to impose tariffs, it does so clearly and with careful constraints.
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Speaker 4: The Constitution gives Congress the authority to impose taxes and
1:52
Speaker 4: also to regulate commerce with foreign nations, and that constitutional
1:57
Speaker 4: context I think was important. Basically all of the opinions
2:01
Speaker 4: creating a posture that we would expect Congress to speak
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Speaker 4: clearly if they intended to give that power away via AEPA.
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Speaker 4: And the part that you read June relates to, you know,
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Speaker 4: primarily a statutory interpretive question of would Congress have meant
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Speaker 4: AEPA to give terrorf authority to the executive branch? And
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Speaker 4: Court answered no, that was not intended by Congress.
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Speaker 2: The Chief Justice came up with what's been called the
2:31
Speaker 2: Major Questions doctrine about four years ago. It basically says
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Speaker 2: that Congress has to explicitly authorize policies that have a
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Speaker 2: major nationwide impact. How did that doctrine play in this decision?
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Speaker 4: Roberts uses the Major Questions Doctrine in part to resolve
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Speaker 4: the statutory question before the Court, holding AIPA doesn't authorize tariffs.
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Speaker 4: There is a lengthy concurring opinion by Justice Gorsich in
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Speaker 4: which he goes into depth of the Major Questions doctrine,
3:03
Speaker 4: and then also opinions from Justice Barrett talking about some
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Speaker 4: of her differences with how Justice Gorsich applies the Major
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Speaker 4: Questions doctrine. And then the so called liberal justices who say,
3:15
Speaker 4: we think traditional statutory interpretation questions, aside from the Major
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Speaker 4: Questions doctrine allows us to resolve the case. But all
3:22
Speaker 4: the justices discuss that issue. You know, what is the
3:25
Speaker 4: Major Questions doctrine? When is it appropriate to apply and
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Speaker 4: does it apply to the case here?
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Speaker 2: How important is it that two Trump appointees, Justices Amy
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Speaker 2: Cony Barrett and Neil Gorsich, and particularly Justice Gorsich, who's
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Speaker 2: among the most conservative members of the Court and is
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Speaker 2: usually a reliable vote for Trump, How important is it
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Speaker 2: that they sided with the majority here.
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Speaker 4: Justice Roberts has long spoken about the legitimacy of the Court.
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Speaker 4: You know, I would answer that question June just by saying,
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Speaker 4: I think Roberts is very pleased to have justices who
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Speaker 4: are and buy President Trump join him in this landmark opinion.
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Speaker 2: Where did the conservatives who dissented find authority for the
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Speaker 2: president to issue tariffs?
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Speaker 4: So the Descent would have said that the AEPA text
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Speaker 4: itself is intended to encompass the authority to issue tariffs
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Speaker 4: and thus upheld President Trump's emergency tariffs. And the language
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Speaker 4: of AEPA is broad. It uses a lot of authorizing
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Speaker 4: language for the executive to take various actions, including to
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Speaker 4: regulate importation, which is the key phrase that was really
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Speaker 4: at issue here. And you know, I think some of
4:40
Speaker 4: what the Descent is saying, at least in part, is
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Speaker 4: reasoning that, well, the President has blocked imports prohibited commerce
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Speaker 4: under US economic sanctions for decades, citing AEPA, And if
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Speaker 4: that authority allows blocking and prohibiting, why wouldn't the language
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Speaker 4: to regulate importation permit a more calibri in response, which
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Speaker 4: is tariffs, as President Trump chose to use here.
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Speaker 2: President Trump, who was extremely disappointed by the decision, has
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Speaker 2: already announced workarounds for the tariffs.
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Speaker 3: They I will sign in order to impose a ten
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Speaker 3: percent global tariff under Section one twenty two over and
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Speaker 3: above are normal tariffs already being charged.
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Speaker 2: So then will this decision not really make that much
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Speaker 2: difference to the administration and its trade policy.
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Speaker 4: I think as a matter of trade policy, that's probably right.
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Speaker 4: I think that they will and have prepared for this
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Speaker 4: long enough that they see an avenue for them to
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Speaker 4: impose tariffs in a way that doesn't really fundamentally change
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Speaker 4: the map, so to speak, with respect to US trade policy.
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Speaker 2: Why do you think the Court didn't address the extent
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Speaker 2: to which importers are entitled to refunds of the tariffs.
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Speaker 4: That's a tough question and one hundred and seventy page opinion.
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Speaker 4: The dissent points out that the majority says nothing about refunds,
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Speaker 4: and you know, if you go through the opinion, it's
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Speaker 4: all about the statutory interpretation the merits question, not the
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Speaker 4: remedy question. At the US Court of Appeals for the
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Speaker 4: Federal Circuit, it had remanded this case back to the
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Speaker 4: Court of International Trade, which is at the district court level,
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Speaker 4: for this particular case, to examine whether a nationwide remedy
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Speaker 4: was appropriate, and it said that intervening authority of the
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Speaker 4: Supreme Court required the Court of International Trade to look
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Speaker 4: at that issue. Anew that intervening authority is Trump Vicasa,
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Speaker 4: which discussed the appropriateness of a federal judge issuing a
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Speaker 4: nationwide remedy. So I think the effect of the opinion
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Speaker 4: is they affirmed the Federal Circuit opinion. The Federal Circuit
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Speaker 4: opinion had told the Court of International Trade to look
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Speaker 4: at that issue, and that's where we go now with
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Speaker 4: respect to refunds.
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Speaker 2: And so to be litigated at the Court of International Trade.
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Speaker 2: Would refunding be as messy as Justice Kavanaugh says.
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Speaker 4: The messy language comes from what Justice Barrett said during
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Speaker 4: oral argument, and Justice Barrett here sides with the majority
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Speaker 4: to strike down the tariffs, and so Justice Kevnaugh is saying, well,
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Speaker 4: you know, how do we proceed here? It's going to
7:24
Speaker 4: be a mess I mean, I think that it's really
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Speaker 4: unclear what happens next on the refund issue. From my
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Speaker 4: perspective as a trade attorney, I advise importers about tariffs
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Speaker 4: all the time, and it's largely automated in the sense
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Speaker 4: that it's possible for US Customs to look at each
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Speaker 4: individual import on an entry by entry basis and see
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Speaker 4: how much innipa tariffs have been paid. So I'm not
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Speaker 4: convinced it needs to be messy. But it depends on
7:51
Speaker 4: a lot of things. Now, it depends on how the
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Speaker 4: administration reacts, depends on how the Court of International Trade
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Speaker 4: reviews that issue in the first instance, and then potential
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Speaker 4: appeals from there.
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Speaker 2: I want to talk about the significance of this decision
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Speaker 2: outside of tariffs. Do you think we can read more
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Speaker 2: into this decision? For example, is this the start of
8:12
Speaker 2: the Supreme Court restraining Trump and his agenda? Could these
8:17
Speaker 2: principles be used in other circumstances or are they limited
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Speaker 2: to this specific statute.
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Speaker 4: It's significant and broad in the sense that these IPA
8:29
Speaker 4: tariffs have been imposed under a variety of executive orders
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Speaker 4: for a variety of purposes. You had the global reciprocal tariffs,
8:35
Speaker 4: you had the Fentnyl related tariffs, you had the RAN
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Speaker 4: related tariffs imposed with respect to imports from India, and
8:43
Speaker 4: presumably this opinion says all those terrorists are illegals. So
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Speaker 4: it's very broad. It is landmark. It's an enormous decision
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Speaker 4: covering you know, importers who paid between one hundred and
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Speaker 4: thirty and one hundred and fifty billion dollars. Now what
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Speaker 4: it says outside the scope of IEPA. I'm not sure
8:59
Speaker 4: that would get very speculative, and it would be difficult
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Speaker 4: given what the Supreme Court said that it's ultimately a
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Speaker 4: statutory interpretive question that they resolved here to really say
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Speaker 4: that this says anything about the validity of tariffs outside
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Speaker 4: of a EPA.
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Speaker 2: And Dave, as a trade lawyer, what are you going
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Speaker 2: to be looking for after this decision?
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Speaker 4: You know, I think that one issue will be interesting
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Speaker 4: to watch now is the reaction not just from importers
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Speaker 4: and not just from the Administration, but also international trading partners.
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Speaker 4: We have all these trade agreements that are based on
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Speaker 4: and you know, the underlying assumption is that AIPA tariffs
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Speaker 4: apply and that a new agreement has reached between the
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Speaker 4: White House, the USTR and these foreign countries. You know,
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Speaker 4: now that the IPA tariffs have been held unlawful, it'll
9:47
Speaker 4: be interesting to see what happens next. There might not
9:49
Speaker 4: be a significant change, and I think the administration will
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Speaker 4: say nothing has changed with respect to those agreements, and
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Speaker 4: it'll be interesting to see if foreign countries continue basically
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Speaker 4: to say, yeah, we continue to view those agreements as valid.
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Speaker 4: Nothing's changed. We're going to keep going as though those
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Speaker 4: agreements are the bargain under which the US and those
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Speaker 4: trading partners will will do business.
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Speaker 2: And on the Supreme Court side of things, it'll be
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Speaker 2: interesting to see which of the justices show up for
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Speaker 2: President Trump's State of the Union address on Tuesday, considering
10:21
Speaker 2: that he called the justices in the majority unpatriotic and
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Speaker 2: disloyal to the Constitution. Thanks for your insights, Dave. That's
10:30
Speaker 2: Dave Townsend, a partner at Dorsey and Whitney. Coming up
10:34
Speaker 2: next on the Bloomberg Law Show. A coalition of conservation
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Speaker 2: and historical organizations are suing the Trump administration over its
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Speaker 2: efforts to erase history and science at our national parks.
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Speaker 4: You cannot erase our history. Yes it is flawed, Yes
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Speaker 4: it is imperfect.
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Speaker 2: Philadelphia's mayor praised a federal judge ordering the Trump administration
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Speaker 2: to restored displays discussing slavery at a site in the
11:03
Speaker 2: city where George Washington lived as president. Last month, National
11:08
Speaker 2: Park Service workers used hand tools to pry off thirty
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Speaker 2: four panels about nine people enslave by Washington. It's part
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Speaker 2: of the Trump administration's removal of information related to racism
11:21
Speaker 2: and slavery, sexism and LGBTQ rights, Indigenous communities, and climate
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Speaker 2: change from the nation's museums, parks, and landmarks. The National
11:33
Speaker 2: Parks Conservation Association and five other nonprofits are suing the
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Speaker 2: administration to stop what they call a sustained campaign to
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Speaker 2: erase history and undermine science from national sites. Joining me
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Speaker 2: is Alan Spears, Senior director of Cultural Resources for the
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Speaker 2: National Parks Conservation Association, Alan, will you give us the
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Speaker 2: timeline of the Trump administration's effort to remove in from
11:59
Speaker 2: anisation from the National parks?
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Speaker 5: So when this process got started shortly after President Trump
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Speaker 5: was re elected and re entered the White House, and
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Speaker 5: in March of twenty twenty five, he issued an executive
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Speaker 5: Order to Restore Truth and Sanity to American History, and
12:17
Speaker 5: that was followed two months later by a secretarial order
12:19
Speaker 5: issued by Secretary Doug Bergham, Secretary of the Interior, that
12:23
Speaker 5: essentially operationalized the President's executive order for all of the
12:27
Speaker 5: agencies in the Interior Department, including the National Park Service,
12:31
Speaker 5: and so had QR codes placed in national parks so
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Speaker 5: that visitors could tattle on National Park Service employees if
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Speaker 5: they found that the interpretation of the site was a
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Speaker 5: little bit too left leaning or in their view, denigrated Americans,
12:43
Speaker 5: and that was followed by an order for National Park
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Speaker 5: Service staff to assess everything in their interpretive inventories, whether
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Speaker 5: it was related to race or gender, or climate science,
12:54
Speaker 5: anything that might run a foul of the secretarial Order
12:57
Speaker 5: or the President's executive order. They were to put that
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Speaker 5: on a list and submit that list of the Interior Department,
13:03
Speaker 5: and those lists were filled out and then submitted over
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Speaker 5: the course of the end of the summer of twenty
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Speaker 5: twenty five, and then in the fall of twenty twenty
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Speaker 5: five we kind of went into a hiatus where we
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Speaker 5: heard some things were being removed, other things weren't being touched,
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Speaker 5: people were considering what was on the list. And then
13:20
Speaker 5: we got started with a bang in January when we
13:23
Speaker 5: saw the National Park Service take down the displays at
13:26
Speaker 5: the President's House at Independence National Historical Park in Philadelphia.
13:31
Speaker 5: And we have also seen other signs that were taken down,
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Speaker 5: a sign on sea level rise at Fort Sumter, signs
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Speaker 5: about climate change at Acadian National Park, a couple of
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Speaker 5: films videos at Lowell National Historical Park in Massachusetts that
13:44
Speaker 5: talked about the pollution of the industrial era and the
13:48
Speaker 5: challenging work environment for some of those young women who
13:51
Speaker 5: were working in the mills and Lowell during the Industrial
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Speaker 5: Revolution in this country. And we've seen signs about Native
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Speaker 5: history and culture that have been removed from the Grand Canyon.
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Speaker 5: We're hearing stories anecdotal evidence of the fact that there
14:02
Speaker 5: is a large list of sites out there, many of
14:05
Speaker 5: whom have commemorative or interpretive materials that are related to
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Speaker 5: the African American experience, either slavery or civil rights, that
14:12
Speaker 5: are on somebody's list. And we may yet see additional
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Speaker 5: operations coming from the Trump administration, from the Secretary of
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Speaker 5: the Interior, from the National Park Service to remove or erase,
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Speaker 5: or censor or sanitize elements of our shared national narrative
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Speaker 5: as it is interpreted by our National Park Service.
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Speaker 2: Is it any reference to slavery, LGBDQ rights, climate change, etc.
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Speaker 2: How are they deciding what's objectionable?
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Speaker 5: Oh, that's a great question. There is no transparency in
14:42
Speaker 5: this process. And so, as an advocacy organization, the National
14:47
Speaker 5: Parks Conservation Association is engaged in the game of whack
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Speaker 5: a mole where we've got something happening at the Independence
14:53
Speaker 5: Park in one week, and then something happening at the
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Speaker 5: medgrin Early Evers Home potentially the next week, and so
15:00
Speaker 5: so there is no transparency. There doesn't seem to be
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Speaker 5: any process. And sometimes we've got directives coming down from
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Speaker 5: above get rid of this, or we've got people in
15:09
Speaker 5: National Parks who themselves are trying not to get in
15:11
Speaker 5: any kind of trouble, thinking, all right, maybe we ought
15:14
Speaker 5: to take that down, or that program that we were
15:17
Speaker 5: going to have on enslaved people in the underground railroad.
15:19
Speaker 5: Maybe let's postpone that. But the challenge right now is
15:22
Speaker 5: we don't have a clear sense of exactly what's happening,
15:24
Speaker 5: so it makes it really difficult to react to that.
15:27
Speaker 5: What I can tell you is we know now that
15:30
Speaker 5: the word transgender has been scrub from National Park Service interpretation,
15:34
Speaker 5: and we know that it's been scrubbed from the interpretive
15:36
Speaker 5: arrays at the Stonewall Inn in Lower Manhattan that was
15:39
Speaker 5: the site of the LGBTQ Uprising in the summer of
15:42
Speaker 5: nineteen sixty nine that launched the modern LGBTQ civil rights
15:46
Speaker 5: and human rights era, and that protest, that uprising was
15:49
Speaker 5: led by transgender activists, and so they have been excised
15:53
Speaker 5: from the history of an event that they started and
15:55
Speaker 5: helped to organize and lead. And we are seeing also
15:58
Speaker 5: at the President's House and other places. It seems as
16:01
Speaker 5: if there are some folks in the administration who believe
16:05
Speaker 5: that restoring truth and sanity actually means getting rid of
16:08
Speaker 5: any references to anything related to race or gender, or
16:11
Speaker 5: sexual orientation, labor class, women's rights, or climate science. That
16:15
Speaker 5: makes some people feel uncomfortable. So the idea is, you
16:18
Speaker 5: take those things out of the interpretive array, and you
16:21
Speaker 5: can go and have a fine time at any national
16:23
Speaker 5: park that you want to visit, and you will never
16:25
Speaker 5: have to learn anything or think critically about any issue,
16:27
Speaker 5: because we are just going to look at the unfiltered,
16:29
Speaker 5: unalloyed progress of this country from start until the current
16:33
Speaker 5: time right now, when it's been nothing but progress, progress, progress.
16:37
Speaker 5: And I would just round out those comments by saying,
16:39
Speaker 5: this is an amazing country. We have a broad and
16:42
Speaker 5: diverse history. It's complex. I think the complexities are the
16:45
Speaker 5: things that make it interesting. We have joined with allies
16:48
Speaker 5: to defeat fascism. We have brought inspiration, political, scientific, cultural
16:53
Speaker 5: to all parts of the globe we've cured dread disease,
16:56
Speaker 5: and there are times when we have failed to live
16:58
Speaker 5: up to the better angels of our nature. That's us too,
17:01
Speaker 5: And so when it comes to national parks and historic interpretation,
17:04
Speaker 5: we want the full story to be told in our
17:06
Speaker 5: national parks because we can handle the truth and we've
17:09
Speaker 5: got to have that truth.
17:10
Speaker 2: And what are you hoping to accomplish with your lawsuit?
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Speaker 5: The aim of our lawsuit is to just put a
17:15
Speaker 5: stop to history eraser and signage removal. Let's stop it,
17:19
Speaker 5: and then let's see if we can't through other means,
17:21
Speaker 5: perhaps even legal means, reverse that trend and then repair
17:24
Speaker 5: what's been lost. So that's the purpose of the lawsuit.
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Speaker 5: We want to stop any additional signage removal in the
17:29
Speaker 5: name of restoring truth and sanity to American history international parks.
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Speaker 2: I take it you're hoping for more rulings like that
17:36
Speaker 2: from federal judge Cynthia Roof, who ordered the Park Service
17:40
Speaker 2: to restore the panels on slavery. She found the federal
17:44
Speaker 2: government doesn't have the power it claims to dissemble and
17:47
Speaker 2: disassemble historical truths, and she said it echoes Big Brother's domain.
17:52
Speaker 2: In George Orwell's nineteen eighty four.
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Speaker 5: That's exactly correct. Yeah, at this point in time, we
17:58
Speaker 5: have an administration right now that has taken this restoration
18:02
Speaker 5: of truth and sanity issue too far. And I think
18:05
Speaker 5: the judge in the ruling for the preliminary injunction spelled
18:10
Speaker 5: it out that the actions being taken by this administration
18:14
Speaker 5: related to the Philadelphia case are capricious and arbitrary. We
18:17
Speaker 5: certainly feel like that's the case nationwide with some of
18:20
Speaker 5: the things that have been removed. You know, it takes
18:22
Speaker 5: the National Park Service months and sometimes years to develop
18:25
Speaker 5: interpretive arrays and signage that get placed in national parks.
18:29
Speaker 5: They consult with historians and museum collections specialists and ethnographers
18:34
Speaker 5: and archaeologists and community members and dessendate communities and historians
18:39
Speaker 5: from outside the agency to get together and develop really good, accurate,
18:44
Speaker 5: inclusive interpretation that will benefit the public and enlighten the
18:48
Speaker 5: public and enhance public knowledge about our history. What's happening
18:51
Speaker 5: right now is it seems that somebody is in charge
18:53
Speaker 5: of an algorithm that any time it finds anything in
18:55
Speaker 5: a brochure on a National Park Service interpretive sign that
18:57
Speaker 5: mentions the word slavery or the LGBTQ. It gets yanked
19:02
Speaker 5: out or it gets flagged for removal. That's not a
19:05
Speaker 5: rigorous historical academic process. Again, we've got a very complex story.
19:11
Speaker 5: We benefit when we're able to learn about where we've
19:13
Speaker 5: come from and about the breadth and depth of the
19:15
Speaker 5: contributions that people from a variety of backgrounds have made
19:19
Speaker 5: to this country to make us the people that we
19:21
Speaker 5: are today.
19:22
Speaker 2: So you describe this as a game of whack a mole.
19:26
Speaker 2: You don't know where in what National Park some information
19:31
Speaker 2: is going to be taken down. So even if you
19:33
Speaker 2: get a judge's order, how will that be enforced.
19:37
Speaker 5: Well, that's a good question. That is also something for
19:40
Speaker 5: the lawyers and the legal teams to figure out. And
19:43
Speaker 5: once a ruling is made, we would hope that everybody
19:45
Speaker 5: would abide by the law and buy the findings. And
19:48
Speaker 5: the idea is we have, at this point in time
19:52
Speaker 5: a problem that goes well beyond signage. And I think
19:55
Speaker 5: that's the challenge that we've got right now and that
19:57
Speaker 5: we're trying to communicate to the public. So if let's
20:00
Speaker 5: say the installation about enslaved people that came with George Washington,
20:05
Speaker 5: and served his family in Philadelphia when he was president.
20:08
Speaker 5: Let's say those signs are removed and they stay down,
20:11
Speaker 5: we lose an opportunity at that site to have a
20:14
Speaker 5: conversation about the issue of slavery and its place in
20:17
Speaker 5: the founding era of this country. And let me tell you,
20:21
Speaker 5: George Washington as our president deserves a world of credit
20:25
Speaker 5: because he's the guy that helped to establish our democratic traditions.
20:29
Speaker 5: When he got to the end of his second presidential term,
20:31
Speaker 5: he was standing next to some people who were elbowing
20:34
Speaker 5: him and saying, you know, General, you know people with muskets.
20:37
Speaker 5: We know people with muskets. We can keep you in
20:40
Speaker 5: this position for as long as you'd like to be
20:42
Speaker 5: the supreme leader of this nation. In Washington, to his credit,
20:45
Speaker 5: said no, I believe in civilian leadership and peaceful transition.
20:49
Speaker 5: We're gonna have an election. We're going to let the
20:51
Speaker 5: next person come in and take over the presidency. So
20:54
Speaker 5: our democratic traditions extend to George Washington and his ability
20:59
Speaker 5: to be that self off faith. And he was also
21:01
Speaker 5: a guy who owned several enslaved Africans. And I think
21:05
Speaker 5: we need to be at a place where we can walk,
21:07
Speaker 5: chew gum, and think difficult thoughts all at the same time.
21:10
Speaker 5: And so what we hope through this lawsuit is to
21:13
Speaker 5: suggest to the administration and to the people in America
21:17
Speaker 5: that this is an important issue. We don't need to
21:20
Speaker 5: erase our history. We don't need to hide from our history.
21:23
Speaker 5: We benefit all of us by being able to think
21:27
Speaker 5: critically about things that happened in our past that still
21:30
Speaker 5: very much influence us to this day. So in that regard,
21:33
Speaker 5: the lawsuit starts with the notion of stopping history erasure
21:37
Speaker 5: and signage removal, but it goes well beyond that. It's
21:39
Speaker 5: a much more important and challenging issue that we're facing
21:42
Speaker 5: right now.
21:43
Speaker 2: Alan, I'm curious about something. So websites have been scrubbed
21:48
Speaker 2: of information about slavery, sexism, climate change, etc. Is that
21:53
Speaker 2: a raised information stored somewhere so you can restore it
21:57
Speaker 2: right away when you get a judge's order, or do
22:01
Speaker 2: you have to go through some other kind of process
22:04
Speaker 2: to develop the information.
22:06
Speaker 5: Again, it's a little bit like the novel Fahrenheit four
22:09
Speaker 5: or five one where the people wander around in the
22:11
Speaker 5: woods and they've memorized all the poetry and the science
22:13
Speaker 5: and the literature, and they share those oral histories with
22:17
Speaker 5: young people so that at some point in time in
22:19
Speaker 5: the future they can come back and maybe republish all
22:21
Speaker 5: the books that have been burned. We're not quite at
22:24
Speaker 5: that stage at this point in time, but we do
22:26
Speaker 5: have an organization called Save Our Signs, and we do
22:29
Speaker 5: have people who have taken photographs of websites, screen captures
22:33
Speaker 5: of websites, so we do have a sense of before
22:36
Speaker 5: and after, and I think there will be the ability
22:39
Speaker 5: to rebuild and repair. But I would also tell you this,
22:43
Speaker 5: there were some reports or some people who suggested that
22:45
Speaker 5: the National Park Service at the President's home in Philadelphia
22:49
Speaker 5: were ripping down these displays and maybe even tossing them
22:52
Speaker 5: into garbage cans. That's not what happened. They were taken
22:55
Speaker 5: down carefully. They have been put in a place whereby
22:58
Speaker 5: as they have been ordered by a judge. At some
22:59
Speaker 5: point in time, we hope to see them restore to
23:01
Speaker 5: their rightful place at the President's home display on enslaved people,
23:05
Speaker 5: and so we do have ways that we can recover
23:08
Speaker 5: this information, even if it has been sanitized or erased
23:11
Speaker 5: from a website. But the lawsuit that we have initiated
23:14
Speaker 5: is to make sure that we don't lose anything else.
23:16
Speaker 2: It's so important to preserve our history. Thanks so much
23:19
Speaker 2: for joining me, Allan. That's Alan Spears of the National
23:23
Speaker 2: Parks Conservation Association. Coming up next, the legal fight over
23:27
Speaker 2: the EPA scrapping a major climate rule. I'm June Grosso
23:32
Speaker 2: and this is Bloomberg effective immediately.
23:36
Speaker 3: We're repealing the ridiculous Endangerment Finding and terminating all additional
23:40
Speaker 3: green emission standards imposed unnecessarily.
23:45
Speaker 2: It took less than a week for lawsuits to be
23:47
Speaker 2: filed over the EPA's elimination of the bedrock scientific finding
23:53
Speaker 2: that greenhouse gases threaten public health.
23:56
Speaker 3: Don't worry about it because it has nothing to do
23:58
Speaker 3: with public health. That this is all a scam, giant scam.
24:02
Speaker 2: The so called Endangerment Finding forms the basis for regulations
24:07
Speaker 2: to fight climate change, and its revocation could unwind current
24:11
Speaker 2: air and climate rules. So a coalition of conservation and
24:16
Speaker 2: public health groups and a group of youth plaintiffs are
24:19
Speaker 2: challenging the repeal, saying it violates federal law and legal precedent,
24:25
Speaker 2: and more lawsuits are sure to follow on an issue
24:28
Speaker 2: that's likely to reach the Supreme Court. My guest is
24:31
Speaker 2: an expert in environmental law, Pat Parento, a professor at
24:35
Speaker 2: the Vermont Law and Graduate School. Pat, just how critical
24:40
Speaker 2: is this revocation of the endangerment finding.
24:44
Speaker 1: It's huge, and it's ugly, and people do not fully
24:48
Speaker 1: understand just how devastating this action is going to be,
24:52
Speaker 1: not just for climate, but for public health and safety generally.
24:56
Speaker 2: And the endangerment finding came out of a landmark our
25:00
Speaker 2: Supreme Court case in two thousand and seven, right, so.
25:04
Speaker 1: It follows on the heels of course of Massachusetts versus DPA,
25:08
Speaker 1: which is still the law of the land, contrary to
25:11
Speaker 1: what mister Zelden thinks. And in that decision, the Supreme
25:15
Speaker 1: Court not only held that greenhouse gas pollution is regulated
25:21
Speaker 1: under the Clean Air Act, the George W. Bush administration
25:24
Speaker 1: had taken the position it wasn't regulated, and they made
25:27
Speaker 1: many of the same arguments that Trump and Zelden are
25:29
Speaker 1: making now. The Supreme Court rejected those. It was a
25:32
Speaker 1: five to four decision, and frankly, the majority in the
25:37
Speaker 1: Massachusetts case is no longer on the court. So that's
25:40
Speaker 1: what gives Trump some hope here. And then secondly, the
25:43
Speaker 1: Supreme Court said, since you have the authority to regulate
25:47
Speaker 1: greenhouse gas pollution, if you make a finding that such
25:51
Speaker 1: pollution and the emissions that cause it in danger public
25:55
Speaker 1: health and welfare, you must regulate. You don't have any
25:58
Speaker 1: discretion to regulate once you make a finding. And the
26:03
Speaker 1: Supreme Court made it clear that was a scientific finding,
26:07
Speaker 1: wasn't policy, it wasn't even law necessarily, It was a
26:10
Speaker 1: scientific determination that this kind of pollution is endangering people's
26:16
Speaker 1: health and welfare. So the science is absolutely crystal clear,
26:21
Speaker 1: and the danger is absolutely clear. You can repeal the finding,
26:25
Speaker 1: you can't repeal the danger.
26:27
Speaker 2: There are two lawsuits in counting, one by a group
26:31
Speaker 2: of youth plaintiffs and another by a coalition of health
26:34
Speaker 2: and environmental groups. Tell us about their claims that the
26:38
Speaker 2: EPA's actions are illegal.
26:41
Speaker 1: Well, they're first of all saying that Massachusetts versus EPA
26:45
Speaker 1: is the law, and as I said, it states very
26:48
Speaker 1: clearly that EPA has the authority to regulate. So now
26:52
Speaker 1: Zelden is coming along and saying, well, no, We've looked
26:55
Speaker 1: at it again through the lens that we use, and
26:58
Speaker 1: our conclusion is that the best reading of the Clean
27:02
Speaker 1: Air Act is not the reading that the Supreme Court
27:05
Speaker 1: issued in Mas versus CPA, but our reading, which is,
27:09
Speaker 1: we don't have any authority to regulate greenhouse gases. They're
27:12
Speaker 1: using kind of an originalist argument here. They're trying to
27:16
Speaker 1: say that because the Clean Air Act of nineteen seventy
27:19
Speaker 1: was focused on initially localized pollution, the smog that people
27:24
Speaker 1: were breathing and so forth. But it's not true that
27:28
Speaker 1: the Clean Air Act was limited geographically. We have multiple
27:32
Speaker 1: instances where the Clean Air Act has been used to
27:35
Speaker 1: tackle long range pollution, not just acid rain, but ozone pollution,
27:41
Speaker 1: small pollution, fine particulate pollution that floats across the United
27:46
Speaker 1: States from upwind states the downwind states. So this notion
27:51
Speaker 1: that the Cleaner Act was never intended to regulate anything
27:55
Speaker 1: in your immediate area of the area you're breathing is
27:58
Speaker 1: simply flatly wrong. That's never been the law. No case
28:02
Speaker 1: has ever said that, The Supreme Court has never said that.
28:06
Speaker 1: Only Zelden is saying that. So the first argument is
28:10
Speaker 1: there really is no legal basis whatsoever for repealing the
28:16
Speaker 1: endangerment finding. And of course they also repealed immediately what
28:20
Speaker 1: we call the tailpipe standards, the mobile source standards, Cars
28:23
Speaker 1: and trucks and so forth. They are the largest source
28:26
Speaker 1: of this kind of pollution and a lot of other
28:28
Speaker 1: pollution as well. So the notion that this isn't a
28:32
Speaker 1: significant category, that's another requirement of the Clean Air Act.
28:37
Speaker 1: You have to make a finding that there's a danger
28:40
Speaker 1: from these pollutants. But then you have to look at
28:42
Speaker 1: the sources of the pollutants and say those sources contribute
28:47
Speaker 1: to the danger. But if this is the largest source
28:50
Speaker 1: of greenhouse gases and these other pollutants, they surely contribute
28:55
Speaker 1: to the danger. So there's no legal basis, no scientific base,
29:00
Speaker 1: and there are lots of other arguments for why this
29:03
Speaker 1: finding is not based on the.
29:06
Speaker 2: Law, particularly in light of Massachusetts versus EPA. Why do
29:11
Speaker 2: you think the EPA administrator Lee Zelden took this route.
29:16
Speaker 1: Selden is counting on the current composition of the court.
29:20
Speaker 1: As I said, the majority that was in place in
29:23
Speaker 1: Massachusetts versus EPA is no longer there. It's much more conservative.
29:28
Speaker 1: So you have to look at can Selden get the
29:32
Speaker 1: court to take review of this issue and reverse Massachusetts
29:38
Speaker 1: versus CPA. So this requires basically a headcount. Where do
29:42
Speaker 1: you get five votes on this court to overturn Mass
29:47
Speaker 1: versus CPA. You don't have the liberal wing of the court.
29:50
Speaker 1: You don't have Chief Justice Roberts, who wrote the dissent
29:53
Speaker 1: in Massachusetts, because he has stated publicly, even though I dissented,
29:58
Speaker 1: I think Mass versus EPA at this point is settled law.
30:03
Speaker 1: It's been on the books for nineteen years, right, lots
30:06
Speaker 1: of reliance on that decision, lots of regulatory actions based
30:11
Speaker 1: on that decision, lots of industry actions in response to
30:16
Speaker 1: that decision. So you're not going to get Chief Justice
30:19
Speaker 1: Roberts vote. So where do you get the fifth vote.
30:22
Speaker 1: You've got the three or four perhaps ultra conservatives on
30:27
Speaker 1: the court. That would be Justice Thomas, Justice Alito, Justice Corsition,
30:32
Speaker 1: probably Justice Kavanaugh, although even that's not sure. So where
30:36
Speaker 1: does the fifth vote come from? It almost has to
30:39
Speaker 1: be Justice Barrett, And my view is that she's not
30:43
Speaker 1: going to go along with overturning Mass versus CPA because
30:47
Speaker 1: of a doctrine that we call statutory starry decisives. So
30:52
Speaker 1: once the Court has interpreted a statue, as opposed to say,
30:56
Speaker 1: interpreting the Constitution, which can change over time, as we've
31:00
Speaker 1: seen but what comes to interpreting a statue like the
31:04
Speaker 1: Clean Air Act. The doctrine that that kind of precedent
31:08
Speaker 1: should not be overruled or at least lightly overruled, is
31:13
Speaker 1: very very strong, and I think Justice Barrett has the
31:16
Speaker 1: kind of sort of institutional integrity on the Supreme Court
31:20
Speaker 1: to respect that. So I don't see how they get
31:24
Speaker 1: Justice Barrett's vote.
31:26
Speaker 2: Pat The Supreme Court has surprised us many many times.
31:30
Speaker 2: So suppose they do get that fifth vote and Massachusetts
31:34
Speaker 2: versus EPA is overturned, can that be undone by the
31:39
Speaker 2: next president and the next EPA.
31:42
Speaker 1: That would have really devastating consequences because it would mean
31:46
Speaker 1: that a future president could not reinstate the endangerment finding.
31:51
Speaker 1: Once the Court has determined there is no authority to
31:54
Speaker 1: regulate greenhouse gases unless Congress steps in, and that doesn't
31:59
Speaker 1: look very likely. That's the end of the ballgame. That's
32:02
Speaker 1: the end of federal regulation of climate polluting emissions.
32:07
Speaker 2: Devastating, so that it seems like there's a danger in
32:11
Speaker 2: escalating this fight to the Supreme Court.
32:13
Speaker 1: Oh, I think so. I mean, it's the old adage,
32:17
Speaker 1: be careful what you wish for. If Trump is successful
32:20
Speaker 1: in getting the court to agree with them. Then what
32:23
Speaker 1: happens is the Clean Air Act no longer regulates these pollutants.
32:27
Speaker 1: But that means states like California are free to do so,
32:31
Speaker 1: and you can be sure they will. California has already
32:34
Speaker 1: adopted the most stringent tailpipe standards fuel efficiency standards in
32:40
Speaker 1: the country, and thirteen other states have gone along with California.
32:45
Speaker 1: That got overturned by Congress. That's another story, but the
32:49
Speaker 1: point is, once the Clean Air Act is no longer
32:52
Speaker 1: an obstacle to state regulation, it is no longer preempting
32:56
Speaker 1: California and other Blue states from regulating these pollutant not
33:00
Speaker 1: just from cars, but from lots of other you know,
33:03
Speaker 1: sources as well, power plants, oil refineries, et cetera. You know,
33:08
Speaker 1: that creates a patchwork of regulation across the country, chaos
33:12
Speaker 1: because there'll be litigation over that as well. The one
33:15
Speaker 1: thing that industry hates is that kind of chaos, that
33:19
Speaker 1: kind of unpredictability. How do you make investment decisions in
33:22
Speaker 1: a regulatory environment like that? You know, the one thing
33:26
Speaker 1: about federal regulation is once it's in place, that's the baseline.
33:30
Speaker 1: That's what everybody can plan against. And particularly for automakers.
33:35
Speaker 1: So that's number one. If Trump wins, industry loses. Number
33:40
Speaker 1: two is the oil companies also lose. Because the oil
33:44
Speaker 1: companies have been somewhat successful getting state and city and
33:48
Speaker 1: county lawsuits against them for climate damage. These are the
33:52
Speaker 1: so called deception cases, public nuisance cases, more recently climate
33:57
Speaker 1: super fun cases, and so forth, and the oil companies
34:01
Speaker 1: are making the argument the Clean Air Act preempts all
34:04
Speaker 1: these lawsuits for damages. So if Trump wins the repeal
34:09
Speaker 1: of the endangerment finding on the basis that the Clean
34:11
Speaker 1: Air Act doesn't regulate these pollutants, their preemption argument goes
34:16
Speaker 1: out the window. So you know, there are two really
34:19
Speaker 1: bad consequences from upholding what Zelden has done, neither of
34:25
Speaker 1: which benefits industry, doesn't benefit automakers, doesn't benefit utilities. It
34:31
Speaker 1: just creates chaos.
34:33
Speaker 2: I'm wondering if there's a way for the plaintiffs here
34:37
Speaker 2: to slow walk these lawsuits so that they don't reach
34:41
Speaker 2: the Supreme Court during Trump's term.
34:45
Speaker 1: That is the strategy. I think of the environmental groups
34:50
Speaker 1: that have sued and the blue state attorneys general led
34:53
Speaker 1: by California and Massachusetts, which is sure to follow here shortly,
34:58
Speaker 1: I think that's their strategy and slow walk. Yes, there
35:01
Speaker 1: are some ways to do that. Number One, you can,
35:05
Speaker 1: you know, argue for a really long term briefing schedule.
35:08
Speaker 1: Lots of issues here. There were five hundred and seventy
35:12
Speaker 1: thousand comments on this proposed rule. The APA requires EPA
35:16
Speaker 1: to respond to those comments. There's no way EPA has
35:20
Speaker 1: done that in the timeframe that they've been working on that,
35:23
Speaker 1: so you know they're going to be vulnerable on any
35:26
Speaker 1: number of procedural issues. So all of that means the
35:30
Speaker 1: briefing is going to be incredibly detailed. The page limits
35:35
Speaker 1: are going out the window. You know they're going to
35:37
Speaker 1: double or triple the normal briefing that you're talking about,
35:40
Speaker 1: plus the administrative record. You can also be arguing that
35:44
Speaker 1: the records not complete. Short of it is, there are
35:48
Speaker 1: strategies and tactics that lawyers can legitimately use to stretch
35:53
Speaker 1: out the briefing, the argument, and so forth. Whether they
35:57
Speaker 1: can stretch it out for the full almost three that's
36:00
Speaker 1: an open question.
36:02
Speaker 2: So we'll keep watch for the motion practice to begin.
36:05
Speaker 2: Thanks so much, Pat, as always, best Professor Pat Parento
36:09
Speaker 2: of the Vermont Law and graduate School. And that's it
36:13
Speaker 2: for this edition of The Bloomberg Law Show. Remember you
36:15
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36:18
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36:21
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36:30
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36:34
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