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Battle Over Conversion Therapy · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 1: Your parents signs you up for a program to fix you.
0:11
Speaker 2: Welcome to the refuge program.
0:14
Speaker 3: Film.
0:14
Speaker 2: You cannot be born or home sexual This is a lie.
0:17
Speaker 2: It's a choice. Come take it till you make it
0:20
Speaker 2: a come to man.
0:20
Speaker 3: You are not save yourself, Jared. God will not love
0:25
Speaker 3: you the way that you are.
0:27
Speaker 1: Is this what you want?
0:28
Speaker 2: Who's going to strike this demon down?
0:30
Speaker 1: The movie boy Erased is about the gay son of
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Speaker 1: ultra religious parents who sent to conversion therapy to change
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Speaker 1: his sexual identity, which conflicts with his parents Christian beliefs.
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Speaker 1: It's based on the memoir by Garret Conley that exposes
0:47
Speaker 1: the abuses of conversion therapy. Twenty eight states fully or
0:51
Speaker 1: partially banned conversion therapy, which the major medical and mental
0:56
Speaker 1: health organizations in the US have condemned for decades as
1:00
Speaker 1: unscientific and potentially dangerous for teenagers, increasing the risk of depression,
1:06
Speaker 1: substance abuse, and suicide. And now the Supreme Court has
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Speaker 1: decided to take up a First Amendment challenge to Colorado's
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Speaker 1: ban on conversion therapy. A licensed counselor who views her
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Speaker 1: work as an outgrowth of her Christian faith, says the
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Speaker 1: band violates her First Amendment free speech rights. My guest
1:27
Speaker 1: is First Amendment law expert Caroline Malick Corbin, a professor
1:30
Speaker 1: at the University of Miami Law School. Caroline tell us
1:34
Speaker 1: about this case.
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Speaker 3: So, the Supreme Court has granted thirt meaning it will
1:41
Speaker 3: hear a case involving a law that bans what is
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Speaker 3: known as conversion therapy. Its more official designation is sexual
1:51
Speaker 3: orientation change efforts, and this is basically an attempt to
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Speaker 3: make gay kids straight. That's their historical origins. More specifically,
2:05
Speaker 3: the law says that licensed counselors, so it's limited to
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Speaker 3: licensed counselors, cannot practice conversion therapy on minors. So if
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Speaker 3: you want to undergo this so called counseling as an adult,
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Speaker 3: you are allowed to, but practitioners of mental health cannot
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Speaker 3: practice conversion therapy on minors. I also note that there
2:35
Speaker 3: is an exemption for therapists engaged in the practice of
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Speaker 3: religious ministry. So the reason why the law has banned
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Speaker 3: conversion therapy is that it is unscientific, harmful, and futile.
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Speaker 3: So all the reputable medical associations have come out against
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Speaker 3: it for two reasons. One, you can't change someone's sexual orientation,
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Speaker 3: and second, studies show that it actually hurts kids. So,
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Speaker 3: for example, one study found that even holding constant other valuables,
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Speaker 3: the children who have been subjected to this therapy or
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Speaker 3: twice as likely to think about suicide and at least
3:30
Speaker 3: twice as likely to try suicide. So, states who have
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Speaker 3: a long history of regulating the medical profession and ensuring
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Speaker 3: that practices conform with standards of care decided this is
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Speaker 3: not a practice we should allow in our states, and
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Speaker 3: Colorado is one of about twenty states that therefore have
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Speaker 3: forbidden this practice four licensed medical professions as applied kids minors,
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Speaker 3: children under eighteen. So that's the law that's being challenged. Now.
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Speaker 1: This licensed professional counselor, Kaylie Chiles is challenging it, saying
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Speaker 1: it violates her rights to free speech. I mean, she
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Speaker 1: did a free exercise of religion. Lame I think below,
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Speaker 1: But this at the Supreme Court is just about violating
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Speaker 1: her free speech rights.
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Speaker 3: Correct. She brought two claims below. But the only question
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Speaker 3: that is going before the Supreme Court is whether a
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Speaker 3: law banning a particular counseling practice violates the free speech.
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Speaker 1: Clause, how does the counselor say it violates her free
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Speaker 1: speech rights.
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Speaker 3: The legal question turns on whether you think of counseling
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Speaker 3: as a conduct, the practice of medicine, or you think
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Speaker 3: of counseling as pure speech. And this matters because the
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Speaker 3: government has a lot more leeway to regulate the practice
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Speaker 3: of medicine even if it incidentally affects speech, then it
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Speaker 3: does regulating speech. Generally, the presumption is that if the
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Speaker 3: government is regulating speech because of its content or viewpoint,
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Speaker 3: if it's trying to tell people what they are allowed
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Speaker 3: or not allowed to say, that kind of content regulation
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Speaker 3: is presumptively unconstitutional. Generally, we don't want the government deciding
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Speaker 3: what we're allowed to say or what we're allowed to hear.
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Speaker 3: So if this is considered a regulation of speech, then
5:47
Speaker 3: it is problematic under the free speech clause. It's not
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Speaker 3: automatically unconstitutional, it's presumptively unconstitutional. On the other hand, if
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Speaker 3: it is viewed as in regulation of medical practice the
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Speaker 3: regulation of conduct, then the state is going to have
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Speaker 3: a much easier time of showing this is just ensuring
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Speaker 3: that people who are licensed by the state are meeting
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Speaker 3: standards of care. In the medical practice. And this is
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Speaker 3: something the states have always done right regulate what doctors
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Speaker 3: can and can't do, and including folding into that what
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Speaker 3: they can and can't say as part of their practice
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Speaker 3: of medicine.
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Speaker 1: The tense Circuit Court of Appeals, in a divided opinion
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Speaker 1: sided with Colorado, explain what their reasoning was.
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Speaker 3: Okay, here's the thing. This is not the first time
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Speaker 3: court has ever encountered the question of how should we
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Speaker 3: think about regulation of medicine even if it involves speech.
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Speaker 3: And the backdrop to this case is the Supreme Court's
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Speaker 3: ruling about abortion counseling. So this case is about mental
7:04
Speaker 3: health counseling. There is precedence on abortion counseling. By abortion counseling,
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Speaker 3: I mean the laws in many states that require doctors
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Speaker 3: before they provide an abortion to a woman requires the
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Speaker 3: doctors to read, often a state dictated script about the
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Speaker 3: dangers and perils of abortion and about the alternatives to abortion.
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Speaker 3: So just about every state requires that abortion providers say
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Speaker 3: this script or provide this information to women before they
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Speaker 3: are allowed to have an abortion, and doctors challenge those
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Speaker 3: regulations as violating their free speech. They said, you are
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Speaker 3: compelling us to say things that aren't necessarily accurate and
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Speaker 3: certainly not what we would normally say on under our
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Speaker 3: normal practice of medicine. And the Supreme Court upheld the
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Speaker 3: abortion counseling on the grounds that it was not a
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Speaker 3: direct regulation of speech, but a regulation of the medical
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Speaker 3: profession that happened to affect speech. So basically, the precedent
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Speaker 3: that the Tenth Circuit relied on was precedent the Supreme
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Speaker 3: Court had created when ruling about abortion counseling. And so
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Speaker 3: the Tenth Circuit to just said, listen, if the state
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Speaker 3: telling the doctors what they must say to women before
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Speaker 3: they have an abortion, if abortion counseling is merely the
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Speaker 3: regulation of the medical profession, then surely the regulation of
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Speaker 3: a kind of therapy in mental health counseling is also
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Speaker 3: the regulation of medicine that incidentally affects speech. That was
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Speaker 3: the argument that the Tenth Circuit and probably the District
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Speaker 3: Court below made to support their claims that this is
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Speaker 3: not a direct attack on speech, it's a regulation of medicine.
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Speaker 1: In twenty twenty three, the Court refused to take a
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Speaker 1: challenge to a similar ban in Washington State that was
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Speaker 1: over the dessense of three justices Conservatives Clarence Thomas, Samuel Alito,
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Speaker 1: and Brett Cavanaugh. So that means that they've gotten at
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Speaker 1: least one other justice on their side, because they need
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Speaker 1: four votes to take a case.
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Speaker 3: Exactly right. So generally one of the major reasons that
9:46
Speaker 3: the Supreme Court will decide to hear a case is
9:50
Speaker 3: if there's a circuit split. And there is a circuit
9:53
Speaker 3: split on this issue. So the Eleventh Circuit has held
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Speaker 3: that these bans violate free speech claw us, and the
10:01
Speaker 3: ninth and tenth have held no, they are perfectly constitutional,
10:06
Speaker 3: And there was a split even a couple of years ago.
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Speaker 3: But as you explain, the Supreme Court doesn't hear every
10:14
Speaker 3: appeal that goes before it. They only hear an appeal
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Speaker 3: that at least four justices want to hear, and in
10:21
Speaker 3: twenty twenty three there were not four, but this year
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Speaker 3: there are four, so that's enough to hear the case.
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Speaker 3: We don't know who the fourth is because they don't
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Speaker 3: announce who they are. I mean, we can guess that
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Speaker 3: the dissenters are three of them, but we don't know
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Speaker 3: who the fourth is.
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Speaker 1: Now I can't give one hundred percent guarantee on this,
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Speaker 1: but it's most likely that the fourth vote is one
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Speaker 1: of the other Conservative justices. Does the fact that it's
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Speaker 1: the Conservatives that want to take this case up tell
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Speaker 1: you that they're looking to reverse the Tenth Circuit, in
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Speaker 1: other words, strike down the ban on conversion therapy.
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Speaker 3: Personally, I am always nervous when the Supreme Court grants
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Speaker 3: cert in a case involving a Conservative Christian who wants
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Speaker 3: to inflict some kind of harm on a vulnerable community
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Speaker 3: like the LGBT community, because I think the Supreme Court
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Speaker 3: is exceptionally receptive to the claims of conservative Christians, and
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Speaker 3: I think they are especially willing or they really don't
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Speaker 3: show much care about the consequences of the religious practices
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Speaker 3: of conservative Christians and how they harm those in the
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Speaker 3: LGBT community. So I'm worried. On the other hand, at
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Speaker 3: this point, we know there are four votes, but we
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Speaker 3: don't yet know if there are five votes. Though that
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Speaker 3: is not all of that reassuring, but at least it's
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Speaker 3: not a completely foregone conclusion.
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Speaker 1: Coming up the culture war classes at the Supreme Court.
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Speaker 1: This is bloomberg. The Supreme Court has agreed to consider
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Speaker 1: whether scores of state and local governments are violating the
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Speaker 1: Constitution by banning conversion therapy. The Justices we'll hear a
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Speaker 1: challenge to Colorado's ban from a licensed to Christian counselor
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Speaker 1: who says the twenty nineteen law violates her free speech rights.
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Speaker 1: I've been talking to Professor Caroline mal Corbin at the
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Speaker 1: University of Miami Law School. Caroline, the licensed counselor who's
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Speaker 1: challenging the ban is being represented by the Alliance Defending Freedom,
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Speaker 1: which is a conservative Christian law firm and advocacy group
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Speaker 1: that has one case is at the Supreme Court before
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Speaker 1: in Colorado involving the baker who didn't want to bake
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Speaker 1: cakes for gay weddings and the web designer who didn't
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Speaker 1: want to design websites for gay weddings, even though no
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Speaker 1: one had asked her to design a website for gay weddings.
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Speaker 3: Yes, the group that's bringing this is a group that
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Speaker 3: regularly brings challenges to anti discrimination laws on behalf of
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Speaker 3: conservative Christians, and this is yet another one, and they've
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Speaker 3: had incredible success before the Supreme Court. I think they
13:17
Speaker 3: were also the group that challenged California's attempts to require
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Speaker 3: crisis pregnancy centers, which often pretend to be comprehensive medical
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Speaker 3: centers when they're not. They're just anti abortion places that
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Speaker 3: try in lure women into their doors and then they
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Speaker 3: lie to women about the availability of abortion to try
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Speaker 3: and prevent them from having an abortion. Anyhow, California tried
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Speaker 3: to deal with this practice by requiring crisis pregnancy centers
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Speaker 3: to let people know that they were not, in fact
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Speaker 3: a licensed medical provider, even though they often pretended to
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Speaker 3: be one. And the Supreme Court, howd that violated the
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Speaker 3: crisis pregnancy center's pre speech rights as well. And again
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Speaker 3: I think that Alliance Defending Freedom Miner brought that case
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Speaker 3: as well. So there is definitely a pattern of cases
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Speaker 3: brought claiming free speech violations of regulations that are designed
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Speaker 3: to protect from harm and to protect from discrimination, and
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Speaker 3: these are getting struck down in the name of pre speech.
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Speaker 1: The Supreme Court seems to be, you know, with zest
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Speaker 1: picking up these cases involving transgender youth or LGBTQ friendly books.
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Speaker 1: I mean, we already heard the oral arguments over Tennessee's
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Speaker 1: ban on gender affirming treatments for minors, and those arguments
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Speaker 1: suggested that the conservative justices are likely to uphold that ban.
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Speaker 1: And in April we're going to hear apparent challenging LGBTQ
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Speaker 1: friendly books in the classroom. I mean, why is a
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Speaker 1: court that's near the lowest levels of public approval in
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Speaker 1: its history diving into all these culture war issues.
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Speaker 3: I cannot speak for the justices, but it may be
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Speaker 3: that they have the power to remake the law to
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Speaker 3: further their own views, and they're grabbing that power and
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Speaker 3: using it.
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Speaker 1: And how did a case about LGBTQ friendly books in
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Speaker 1: the Maryland school system where a federal appeals court said
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Speaker 1: it wasn't even clear yet how the books would be
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Speaker 1: used in the classroom, how does that get Supreme Court review?
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Speaker 1: By the way, the books include one about a puppy
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Speaker 1: that gets lost at an LGBTQ pride parade and a
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Speaker 1: young child whose gender identity doesn't match his birth assigned sex.
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Speaker 3: So in that case, they're is a parent who objects
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Speaker 3: to their child reading books with lgbt characters, and they
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Speaker 3: make a claim based on parental rights that they have
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Speaker 3: the right to opt their children out of reading books
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Speaker 3: on the set curriculum in the name of religion. So
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Speaker 3: they argument is our religion does not approve of this.
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Speaker 3: It violates our religion if our apparently, if our child
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Speaker 3: knows gay people exist, and therefore our child in public
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Speaker 3: schools doesn't have to read this book, and we have
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Speaker 3: a religious right to take our child who exempt our
16:41
Speaker 3: child from the curriculum. So that is another case before
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Speaker 3: the Supreme Court. Again, when you have a conflict between
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Speaker 3: conservative religion and LGBT rights, generally, with this particular Supreme Court,
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Speaker 3: conservative religion wins. It almost doesn't matter what the doctrine is.
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Speaker 1: I'm still stunned by their ruling in twenty twenty two
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Speaker 1: where they allowed a Christian football coach to pray at
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Speaker 1: the fifty yard line right after games, surrounded by his
17:14
Speaker 1: high school players. And it seems like behind all these
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Speaker 1: cases involving LGBTQ rights, it's really about religion.
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Speaker 3: I do think a lot of this is driven by religion,
17:27
Speaker 3: but often it's easier to make a speech claim rather
17:32
Speaker 3: than a religion claim, although not all of them or
17:35
Speaker 3: speech claims. One we're talking about now is the challenge
17:39
Speaker 3: to the conversion therapy ban is before the court a
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Speaker 3: free speech claim, which again it's sort of speech is
17:47
Speaker 3: being used to attack regulations that people used to never
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Speaker 3: think twice about, and so there is definitely a strand
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Speaker 3: of people exploiting speech. At the same time, speech is
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Speaker 3: crucial in a democracy, but we've always understood there were
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Speaker 3: limits to.
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Speaker 1: It, Caroline. Also coming up in April is the effort
18:11
Speaker 1: to create the country's first religious public charter school. And
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Speaker 1: they're heading in that direction too, aren't they.
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Speaker 3: Yeah, So in that case, the Supreme Court has decided
18:22
Speaker 3: a series of cases where it has held that if
18:27
Speaker 3: a state decides to provide some state funding for private
18:32
Speaker 3: non religious schools, it also has to provide funding to
18:37
Speaker 3: private religious schools. That to refuse to fund religious schools
18:42
Speaker 3: when it's funding secular schools is discrimination against religion. Of course,
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Speaker 3: the problem with these rulings is to completely ignores that
18:51
Speaker 3: they're actually two religion clauses in the First Amendment, one
18:56
Speaker 3: of which is the Establishment Clause, which was long understood
19:01
Speaker 3: to prohibit direct government funding of religion. So that's the backdrop,
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Speaker 3: and the case you're talking about is now there is
19:08
Speaker 3: an argument that not only does it discriminate against religion
19:12
Speaker 3: not to fund private religious schools, but it might discriminate
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Speaker 3: against religion not to fund charter schools which are not
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Speaker 3: entirely private, and so we may yet see a ruling
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Speaker 3: where the Supreme Court says the free exercise clause requires
19:30
Speaker 3: the government to fund a public Christian school, which is
19:36
Speaker 3: again really turning the religion clauses on their head and
19:41
Speaker 3: completely ignoring the establishment clause.
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Speaker 1: What has happened to the principle of separation of church
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Speaker 1: and state. It seems to have vanished.
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Speaker 3: Conservative Christians, particularly the Christian nationalists. They love that the
19:56
Speaker 3: United States is when it comes to in these days,
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Speaker 3: I think what matters more than your particular denomination is
20:06
Speaker 3: whether you're conservative or not conservative. Some people might even
20:10
Speaker 3: argue that the real distinction are those who support Christian
20:13
Speaker 3: nationalism and those who don't. Probably people have heard of
20:17
Speaker 3: this term Christian nationalism. That's the idea. It's sort of
20:21
Speaker 3: the opposite of separation of church and state. It believes
20:25
Speaker 3: that the church and state should be one and that
20:28
Speaker 3: one should be espousing conservative Christian views and values. And
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Speaker 3: I think we're seeing a lot of Supreme Court decisions
20:36
Speaker 3: that really facilitate the growth of Christian nationalism in the
20:40
Speaker 3: United States.
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Speaker 1: The arguments over whether states with public charter schools are
20:46
Speaker 1: constitutionally required to approve and fund religious institutions. Will be
20:51
Speaker 1: heard on the final day of oral Arguments this term
20:54
Speaker 1: the last day of April, and it may be illuminating
20:58
Speaker 1: about the conservative justice is take on the separation between
21:03
Speaker 1: church and state, or maybe not. We shall see. Thanks
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Speaker 1: so much, Caroline. That's Professor Caroline Malacorbin of the University
21:10
Speaker 1: of Miami Law School. Coming up next on the Bloomberg
21:13
Speaker 1: Law Show. The Trump administration clips the wings of the
21:17
Speaker 1: Migratory Bird Treaty Act, one of the nation's oldest environmental laws.
21:23
Speaker 1: I'm June Grosso when you're listening to Bloomberg. The Interior
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Speaker 1: Department has suspended all Biden administration Interior Solicitor's memorandum opinions
21:34
Speaker 1: related to the environment to allow for the Trump administration
21:38
Speaker 1: to review them because they may conflict with Trump's political agenda.
21:43
Speaker 1: The suspensions include interiors interpretation of the Migratory Bird Treaty
21:48
Speaker 1: Act of nineteen eighteen, one of the country's oldest environmental laws,
21:53
Speaker 1: limits on offshore oil and gas leasing, the revocation of
21:58
Speaker 1: mineral leases for proposed coppermine, and Native American rights questions,
22:03
Speaker 1: among other issues. Joining me is Michael Gerard, a professor
22:07
Speaker 1: at Columbia Law School and the founder and faculty director
22:10
Speaker 1: of the Saban Center for Climate Change Law. Can you
22:14
Speaker 1: explain the significance of these memo opinions?
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Speaker 2: Well, they're not legally binding, but they are the directions
22:21
Speaker 2: to the lawyers and personnel of the Interior Department how
22:25
Speaker 2: they should interpret various laws and regulations, So they're very significant.
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Speaker 1: So the Interior Department's acting chief lawyer has suspended every
22:34
Speaker 1: legal opinion issued by his Biden administration predecessor, some twenty
22:41
Speaker 1: legal opinions. He said that this is a routine process.
22:46
Speaker 1: Are blanket suspensions like this a routine process.
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Speaker 2: No, that won't usually revoke them or suspend them all
22:53
Speaker 2: at once. They usually take a more careful, deliberative process
22:56
Speaker 2: to do that. This was sort of a blanket suspension
22:59
Speaker 2: of all of memosk And are they doing.
23:01
Speaker 1: It because the Biden administration policy on environment is so
23:08
Speaker 1: different from the Trump administration's policy.
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Speaker 2: Yes, I think that's a lot of it. That Trump
23:12
Speaker 2: administration has made it clear, as the President has said,
23:16
Speaker 2: drill baby, drill is their objective and they're trying to
23:19
Speaker 2: clear away anything that gets in the way of that.
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Speaker 3: Yeah.
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Speaker 1: I want to talk about some of the suspended opinions.
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Speaker 1: One is the Biden administration's interpretation of the Migratory Bird
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Speaker 1: Treaty Act, which is one of the nation's oldest environmental laws.
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Speaker 2: This was a law that was passed by Congress around
23:38
Speaker 2: nineteen oh eight and it prohibits the killing of migratory
23:44
Speaker 2: birds basically. So traditionally, I mean, for a long time,
23:48
Speaker 2: it was a strict liability law that if you killed
23:51
Speaker 2: a migratory bird, whether you intended to or not, you
23:55
Speaker 2: were liable, potentially criminally liable. But the first Trump administration
24:00
Speaker 2: changed that to intentionally killing. That was struck down in court,
24:04
Speaker 2: that was reversed by Biden, and now the Trump administration
24:07
Speaker 2: is to move it back to say again that you're
24:10
Speaker 2: only liable if you intentionally kill a migratory bird.
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Speaker 1: How much of an impact could that have on the
24:17
Speaker 1: migratory bird population.
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Speaker 2: Well, the oil industry hates the rule because major oil
24:23
Speaker 2: spills kill a lot of birds and lead to a
24:25
Speaker 2: lot of liability. So after the Exxon Valdis disaster in
24:30
Speaker 2: Alaska and after the Deeporter Horizon spill in the Gulf
24:34
Speaker 2: of Mexico, those companies Exxon and BP were assessed fines
24:39
Speaker 2: of millions of dollars, and that industry has been trying
24:42
Speaker 2: to cut this out for a long time, and once
24:45
Speaker 2: again they're succeeding, at least for a while under the
24:48
Speaker 2: Trump administration.
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Speaker 1: What are some of the other legal opinions that were
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Speaker 1: suspended that you think are important.
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Speaker 2: They're trying to revoke some of the limits on offshore
24:59
Speaker 2: oil gas trilling. They're modifying water rights at a Colorado
25:04
Speaker 2: National Park. They're changing various Native American rights questions. So
25:09
Speaker 2: it's a whole host of things. Some of them are
25:11
Speaker 2: fairly technical and innocuous, but others are really designed to
25:14
Speaker 2: make it easier to engage in fossil fuel extraction.
25:17
Speaker 1: With the development of alternative energy sources wind, solar, et cetera.
25:23
Speaker 1: How much can the oil and gas industry increase its output?
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Speaker 2: Well, there are a couple of factors. One is what
25:29
Speaker 2: is the price of oil and gas. Most of the
25:33
Speaker 2: oil and gas extraction we have in the United States
25:35
Speaker 2: today is through fracking, and tracking is only economical if
25:38
Speaker 2: the price is high enough. The President has pledged to
25:42
Speaker 2: slash energy prices. It's not clear how he could do that,
25:45
Speaker 2: but if he did, it would render most fracking uneconomical.
25:50
Speaker 2: But what Trump is doing is to try to discourage
25:54
Speaker 2: renewable energy, especially wind. There's a real irony here because
25:58
Speaker 2: one of the major reas since Trump says that he
26:02
Speaker 2: wants to discourage wind turbance is because they can kill birds.
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Speaker 2: But at the same time they're taking action to make
26:09
Speaker 2: it easier to kill birds through this modification to interpretation
26:13
Speaker 2: of the Migratory Bird Treaty Act.
26:16
Speaker 1: Are the birds killed mostly when there are environmental disasters
26:20
Speaker 1: or is it a daily thing.
26:23
Speaker 2: The worst incidents are when you have environmental disasters, but
26:26
Speaker 2: sometimes you have just an uncovered oil pond or oil
26:30
Speaker 2: tank and they land in it thinking its water and
26:33
Speaker 2: it's not and they die in the oil. So it
26:36
Speaker 2: happens on an ongoing basis, but just a whole lot
26:39
Speaker 2: worse when there's a huge oil spill.
26:41
Speaker 1: What's the goal of the Trump EPA.
26:46
Speaker 2: Well, they're talking about slashing the staff of the EPA,
26:49
Speaker 2: which would make it impossible to implement many of the
26:52
Speaker 2: programs that Congress has told it to implement, and make
26:55
Speaker 2: it impossible to enforce many of the laws that Congress
26:58
Speaker 2: has enacted. Their general view is that regulations are all
27:03
Speaker 2: cost and no benefit. That regulations get in the way
27:06
Speaker 2: of economic growth, and they want to do away with
27:10
Speaker 2: as many of them as possible. That's their view of EPA,
27:13
Speaker 2: and it seems to be their view in lots of
27:15
Speaker 2: different agencies Along those lines.
27:17
Speaker 1: The Trump administration has ended twenty billion dollars in funding
27:22
Speaker 1: for greenhouse gas reduction projects. Advocacy groups are suing because
27:28
Speaker 1: they said that those funds have to be used in
27:31
Speaker 1: the way that Congress set out.
27:33
Speaker 2: Well, just about everything that the Trump administration is doing
27:36
Speaker 2: these days is being challenged in court, and so far
27:40
Speaker 2: many of the federal judges have ruled what they're doing
27:43
Speaker 2: is illegal. I'm sure that the litigation campaign is going
27:47
Speaker 2: to continue during Trump one point zero. The Trump administration
27:52
Speaker 2: one only about thirty one percent of the laws, is
27:55
Speaker 2: challenging its major deregulatory actions. We'll see what happens this time.
28:00
Speaker 1: By the time this suit winds its way through the courts,
28:03
Speaker 1: it could be years.
28:04
Speaker 2: Right, it could be. And the question then is, while
28:07
Speaker 2: the case is winding its way through the courts, is
28:10
Speaker 2: the court directing the money be released or will it
28:14
Speaker 2: continue to be stuck during the litigation? And I think
28:17
Speaker 2: some cases will go one direction, one cases will go
28:20
Speaker 2: the other direction. But one thing that is certain is
28:22
Speaker 2: it's leading to enormous uncertainty. It's impossible to plan, it's
28:27
Speaker 2: impossible to hire people, very difficult to keep people on staff.
28:31
Speaker 2: It's leading all kinds of disruptions, and not just the
28:34
Speaker 2: twenty billion dollars, but lots of programs all throughout the economy.
28:38
Speaker 1: Some courts have said that they have to unfreeze funds, etc.
28:42
Speaker 1: But I don't know if they're really unfreezing the funds
28:45
Speaker 1: that they're supposed to.
28:46
Speaker 2: Well, that's one of the big fights. Even when a
28:49
Speaker 2: court says unfreeze it now, the government is sometimes taking
28:52
Speaker 2: its time, so a lot of action before the court's
28:55
Speaker 2: happening out all of this.
28:56
Speaker 1: As far as environmental justice initiatives, are those all dead
29:02
Speaker 1: under the Trump administration.
29:04
Speaker 2: Yeah. They are systematically closing down anything that has anything
29:08
Speaker 2: to do with environmental justice or with diversity, equity and inclusion.
29:12
Speaker 2: They are striking many of those words from documents. They've
29:17
Speaker 2: made it very clear that they don't want to do
29:19
Speaker 2: anything on either of those subjects. Some of the states
29:23
Speaker 2: still have important environmental justice programs and diversity equity and
29:27
Speaker 2: inclusion programs. Some of the states also have environmental programs
29:30
Speaker 2: that are very important that are continuing, But at a
29:32
Speaker 2: federal level, they're really trying to shut down a broad
29:35
Speaker 2: swath of what has been done under Biden administration, the
29:39
Speaker 2: Obama administration, even then earlier.
29:42
Speaker 1: Are you surprised at how fast they seem to be
29:45
Speaker 1: doing these things?
29:46
Speaker 2: Yes, they're proceeding even more aggressively than people have thought.
29:51
Speaker 2: It's clear that the Project twenty twenty five report, which
29:55
Speaker 2: during the campaign Trump disowned, is really the guidepost, and
29:59
Speaker 2: if you look at what they're do, it's almost entirely
30:02
Speaker 2: consistent with Project twenty twenty five. So when I'm teaching
30:05
Speaker 2: my environmental law classes, I say, Okay, we're going to
30:08
Speaker 2: talk about such and such statute. The first thing to
30:10
Speaker 2: do is look at Project twenty twenty five to see
30:12
Speaker 2: what it says about that. Really, yeah, you know, it's
30:16
Speaker 2: a massive document. The head of the Office of Management
30:19
Speaker 2: and Budget, which really has its finger on every agency,
30:23
Speaker 2: the new head of it, was one of the co
30:25
Speaker 2: authors of Project twenty twenty five. It was designed to
30:28
Speaker 2: be the guidebook, and that's how it's turning out.
30:31
Speaker 1: Going back to the first Trump administration, it seemed like
30:35
Speaker 1: Biden was able to sort of undo what Trump had
30:39
Speaker 1: done in his.
30:39
Speaker 2: Four years, many of the things. Yes now, of course,
30:43
Speaker 2: he was not able to undo the massive amount of
30:46
Speaker 2: greenhouse gases that went into the atmosphere as a result
30:49
Speaker 2: of Trump's actions, and that will stay there for a
30:51
Speaker 2: century or more. But Biden did undo most of the
30:55
Speaker 2: deregulatory actions. So on the day that Trump was first
30:59
Speaker 2: inaugurated in twenty seventeen, the Saving Center which I launched
31:04
Speaker 2: the Climate Deregulation Tracker. On the day that Biden was inaugurated,
31:09
Speaker 2: we rebranded the Climate Reregulation Tracker, And on the day
31:14
Speaker 2: of the second Trump inauguration, we launched the Climate Backtracker.
31:18
Speaker 2: And it's a lot of work to keep it updated.
31:21
Speaker 1: I'll bet it's hard just keeping up with the cases
31:24
Speaker 1: across the country over his executive orders. Let's say that
31:28
Speaker 1: after four more years of Trump, a president is elected
31:32
Speaker 1: who cares about the environment. Can what Trump is doing
31:36
Speaker 1: now be undone easily?
31:38
Speaker 2: Not easily. There's a tremendous brain drain from the federal government,
31:44
Speaker 2: and bright young people graduating from college to graduate school
31:47
Speaker 2: are reluctant to go to work. For the federal government now,
31:50
Speaker 2: so it will be possible to undo the changes to
31:54
Speaker 2: the regulations. Staffing up and resuming the momentum is going
31:59
Speaker 2: to be very tough, So a lot of damage is
32:02
Speaker 2: being done. It's not damage forever, they'll go back to it,
32:06
Speaker 2: but meanwhile we'll be even further away from meeting our
32:09
Speaker 2: climate goals and many other things.
32:11
Speaker 1: I wonder if one advantage to the cutback in federal
32:16
Speaker 1: workers and attorneys leaving the departments is that when the
32:21
Speaker 1: government goes to court now, the lawyers that are representing
32:25
Speaker 1: the government are not as experienced.
32:28
Speaker 2: Yes, there is something to that. And another factor is
32:31
Speaker 2: that if you want to repeal a regulation under the
32:36
Speaker 2: administrative procedure, actually need to write a new regulation, and
32:39
Speaker 2: writing regulations requires staff. An administration can't just reverse itself
32:45
Speaker 2: on lots of things by saying we reverse it. They
32:48
Speaker 2: have to come up with a detailed explanation of why
32:51
Speaker 2: they're changing their policy, and that requires staff. And so
32:56
Speaker 2: if you've lost most of your staff, and if the
32:58
Speaker 2: people who are remaining are demoralized, it's going to be
33:01
Speaker 2: difficult to come up with the explanations for the reversal
33:05
Speaker 2: and policy that will convince federal judges that this was
33:09
Speaker 2: a lawful thing to do.
33:11
Speaker 1: Before you go, tell us what's happening with electric vehicles.
33:15
Speaker 2: So, electric vehicles are the principal threat to the demand
33:18
Speaker 2: for oil, and so the oil industry hates them, and
33:21
Speaker 2: therefore the Trump administration is trying to discourage them as
33:25
Speaker 2: much as possible. So they are cutting back on the
33:28
Speaker 2: programs to build electric vehicle charging stations. They're trying to
33:32
Speaker 2: amend the Inflation Reduction Act to take away the subsidies.
33:37
Speaker 2: They're doing whatever they can to discourage electric vehicles and
33:41
Speaker 2: keep internal combustion engines running as long as possible.
33:45
Speaker 1: Musk is one of Trump's top advisors. Wouldn't that hurt Tesla?
33:50
Speaker 2: Well, Tesla managed to build up a dominant market share
33:53
Speaker 2: without these federal subsidies. What the subsidies are doing are
33:56
Speaker 2: also allowing its the competitors like Ford Generals to build
34:00
Speaker 2: up their market share. So there's a sense that Tesla
34:03
Speaker 2: actually will do fine without the subsidies, and their competitors
34:08
Speaker 2: will do worse.
34:10
Speaker 1: As I said, a lot to keep up with. Thanks
34:12
Speaker 1: so much for being on the show. That's Professor Michael
34:15
Speaker 1: Gerard of Columbia Law School. He's the founder and faculty
34:18
Speaker 1: director of the Sabans Center for Climate Change Law. And
34:22
Speaker 1: that's it for this edition of The Bloomberg Law Show.
34:24
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34:27
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