Latest / Bloomberg Law / Environmental Cases in Supreme Court's New Term

Transcript

Environmental Cases in Supreme Court's New Term · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio.
0:10
Speaker 1: The Supreme Court's new term began today and there are
0:13
Speaker 1: two high profile cases coming up this week, a case
0:17
Speaker 1: involving a challenge to the regulation of ghost guns tomorrow
0:21
Speaker 1: and a death penalty case on Wednesday. Next week, the
0:24
Speaker 1: Court will take up the first of three environmental law
0:28
Speaker 1: cases on the docket so far. Joining me is an
0:31
Speaker 1: expert in environmental law, Pat Parento, a professor at the
0:35
Speaker 1: Vermont Law and Graduate School. Pat, I want to begin
0:39
Speaker 1: with a case the Supreme Court did not take on Friday.
0:43
Speaker 1: It refused to stop Biden administration crackdown on methane emissions.
0:49
Speaker 1: Were you surprised by that?
0:51
Speaker 2: I wasn't really surprised. The course, we're always holding our
0:53
Speaker 2: breath on whether the Court will issue a stay of
0:57
Speaker 2: these rules that have major impacts even before there's been
1:01
Speaker 2: a court ruling. But the methane rule is so grounded
1:04
Speaker 2: in EPA's traditional authority to regulate pollution from the oil
1:09
Speaker 2: and gas industry that I would have been really depressed
1:13
Speaker 2: had they put a stay on that particular rule. But
1:16
Speaker 2: I wasn't surprised that they.
1:17
Speaker 1: Did, and just explain the rule before we move on.
1:19
Speaker 2: So you know, this is a rule that applies to
1:21
Speaker 2: the extraction primarily of gas, which is methane. About seventy
1:27
Speaker 2: plus percent of quote natural gas is actually methane, and
1:31
Speaker 2: in the process of drilling for it and extracting it
1:33
Speaker 2: and transporting it, of course you get a lot of emission.
1:37
Speaker 2: Sometimes the emissions they actually flare, you know, because gas
1:41
Speaker 2: and oil are oftentimes found in the same deposits. The
1:44
Speaker 2: gas off they just burn it off because they don't
1:46
Speaker 2: want it, can't use it. But in any case, this
1:49
Speaker 2: is a regulation that's designed to reduce the amount of
1:53
Speaker 2: emissions that are coming off oil and gas production and
1:57
Speaker 2: transportation through the use of technology to capture the gas
2:01
Speaker 2: and not allow it to escape. So a pretty traditional
2:04
Speaker 2: technological approach to a pollution problem.
2:07
Speaker 1: The Justices did take up another environmental case on Friday
2:12
Speaker 1: involving a nuclear waste storage site in Texas.
2:16
Speaker 2: So this is an enormous problem. What is happening now
2:20
Speaker 2: is spent fuel rods, you know, once they've reached their
2:23
Speaker 2: useful life, are basically stored on site at all of
2:27
Speaker 2: the nuclear power plants all across the country. There's an
2:31
Speaker 2: estimated get this one hundred million tons well of spent
2:38
Speaker 2: nuclear waste sitting. Sometimes they're in casks, concrete casts. Sometimes
2:44
Speaker 2: they're just in containers underground in water to keep them cool. Right,
2:48
Speaker 2: So this is not a good situation, right, So the
2:51
Speaker 2: idea is to try to move all of this stored
2:54
Speaker 2: waste on the site of these nuclear power plants to
2:57
Speaker 2: what NRC Nuclear Regulatory Commission calls temporary storage facilities. But
3:03
Speaker 2: of course we know that once that waste reaches these
3:06
Speaker 2: so called temporary facilities, that's where they're going to stay.
3:10
Speaker 2: And one of these facilities is located in Texas, that's
3:14
Speaker 2: the subject of the case that the Supreme Court has
3:17
Speaker 2: just taken. There's another one proposed across the border in
3:21
Speaker 2: New Mexico, in a very rural, actually minority community in
3:25
Speaker 2: southeastern New Mexico. So there are two of these proposed
3:30
Speaker 2: interim storage facilities that are involved in this case that
3:34
Speaker 2: the Supreme Court has taken. All of this, by the way,
3:37
Speaker 2: relates to the failure of the proposed Yucca Mountain facility
3:41
Speaker 2: that was going to be built in Nevada that was
3:44
Speaker 2: going to hold all of the nation's nuclear waste, right,
3:47
Speaker 2: and of course that never happened as a result of
3:49
Speaker 2: political opposition in Nevada which could never be overcome in Congress.
3:54
Speaker 2: So the situation we have is we have a lot
3:56
Speaker 2: of nuclear waste and no place to put it. And
3:59
Speaker 2: now the Supreme Court has decided to weigh in on
4:01
Speaker 2: the case in Texas.
4:03
Speaker 1: So I can understand why a state wouldn't want to
4:05
Speaker 1: have a nuclear waste facility there. But what is the
4:09
Speaker 1: argument that Texas used.
4:11
Speaker 2: It's a very complicated argument. There are two parts to it,
4:14
Speaker 2: and the Court has taken review at both of them.
4:17
Speaker 2: One has to do with whether Texas can actually challenge
4:22
Speaker 2: the NRC's approval of the waste disposal facility because Texas
4:26
Speaker 2: didn't participate in the very detailed and lengthy administrative proceeding.
4:33
Speaker 2: It's like a trial. It's a formal adjudication, but it's
4:37
Speaker 2: done by an administrative logidge right instead of a court.
4:40
Speaker 2: Texas didn't become a party to that process, and so
4:44
Speaker 2: the government is arguing Texas doesn't have standing, if you
4:47
Speaker 2: want to put it that way. But in any event,
4:50
Speaker 2: they don't have the right to challenge a decision when
4:53
Speaker 2: they didn't participate in the administrative proceeding. Texas's response, Attorney
4:59
Speaker 2: General packs and responses, Yeah, we didn't because it was
5:03
Speaker 2: real complicated and difficult to do. And in any case,
5:07
Speaker 2: you know, NRC never had the authority to approve this
5:11
Speaker 2: facility anyway. It's what we call an ultra bery's decision,
5:16
Speaker 2: a decision on which they have no authority. And there
5:19
Speaker 2: is at least theoretically an exception to the requirement that
5:24
Speaker 2: you participate in these administrative proceedings if the agency never
5:29
Speaker 2: had the authority to do it in the first place. Right,
5:31
Speaker 2: So that's argument number one. It's under what's called the
5:34
Speaker 2: Hobbs Act, and it's an exception to the requirement of
5:38
Speaker 2: participation in that process. So that's argument number one. Can
5:42
Speaker 2: Texas actually bring this challenge? But argument number two is
5:46
Speaker 2: the big one, and that is that NRC does not
5:50
Speaker 2: have the authority at all to approve these so called
5:54
Speaker 2: temporary or interim storage facilities. The only authoritiesas Texas that
6:00
Speaker 2: NRC has is to authorize storage on site at these
6:05
Speaker 2: individual nuclear power plants. They can do whatever they want
6:08
Speaker 2: with regard to how the waste is stored on site
6:11
Speaker 2: or storage at Yucka Mountain, which, as I've just said,
6:15
Speaker 2: has never been approved and is actually not available. Texas's
6:19
Speaker 2: argument is NRC can't create these sort of satellite you know,
6:23
Speaker 2: nuclear waste facilities all over the country, moving this waste
6:27
Speaker 2: thousands of miles, you know, away from the way it's
6:30
Speaker 2: being generated. And that's their big argument. And guess what,
6:34
Speaker 2: no surprise, the Fifth Circuit agreed with Texas. Now, two
6:38
Speaker 2: other circuit courts have considered this question of whether NRC
6:42
Speaker 2: has this authority and reached the opposite conclusion. One of
6:46
Speaker 2: them was the Tenth Circuit in the West, and one
6:48
Speaker 2: of them was the DC Circuit of course, in Washington,
6:51
Speaker 2: d C. And so what you have is a split
6:53
Speaker 2: in the circuits. Another reason, of course, why the court
6:56
Speaker 2: would take a case like this. But what the Fifth
6:59
Speaker 2: Circuit did in agreeing with Texas is it invoked here
7:04
Speaker 2: it comes the major question doctrine. So is relying on
7:10
Speaker 2: the West Virginia versus EPA decision, the very controversial decision
7:15
Speaker 2: which struck down EPA's clean Power plan for greenhouse gas emissions,
7:19
Speaker 2: of course, and so the oil and gas industry in
7:22
Speaker 2: Texas is jumping on board because where this waste disposal
7:26
Speaker 2: facility would be located is in the Peance basin of
7:31
Speaker 2: Texas where all the oil and gas is and they're
7:33
Speaker 2: afraid that if anything were to go wrong. Of course,
7:37
Speaker 2: what could go wrong with a nuclear waste disposal facility,
7:41
Speaker 2: It would screw up their oil and gas development. So
7:44
Speaker 2: this case has all kinds of layers, but at the
7:48
Speaker 2: core of it legally is is the Supreme Court once
7:52
Speaker 2: again going to strike down an agency's authority under this
7:57
Speaker 2: major question doctrine.
7:59
Speaker 1: Pat though that they took this to overturn the Fifth Circuit.
8:04
Speaker 2: I think so, and in fact, on the merits, I
8:07
Speaker 2: think Texas is overreaching here. I think the Court is
8:10
Speaker 2: going to be persuaded that because NRC has been approving
8:15
Speaker 2: these facilities before, there are some factual distinctions between what
8:21
Speaker 2: NRC has done before. But legally NRC has invoked this authority,
8:26
Speaker 2: two other circuits have upheld it. And the truth is
8:30
Speaker 2: that letting all of this waste remain in all of
8:34
Speaker 2: these locations, many of these plants, like the one here
8:37
Speaker 2: in Vermont, the Vermont Yankee Plant has been closed for
8:41
Speaker 2: eight years now, you know, so many of these plants
8:44
Speaker 2: are closed. Just leaving the waste at these plant locations
8:48
Speaker 2: is not a good idea. So actually, I think on
8:51
Speaker 2: the merits, the Supreme Court may be persuaded. The Fifth
8:54
Speaker 2: Circuit has myth applied our major question doctor. Remember Roberts
8:59
Speaker 2: said it was an extraordinary doctor, meaning the once in
9:02
Speaker 2: a blue moon doctrine, not an everyday doctor. So maybe
9:06
Speaker 2: the Supreme Court is going to put some limit on
9:09
Speaker 2: the major question doctrine. Conversely, the Supreme Court might stay
9:13
Speaker 2: at Texas book. When there's an administrative process and you
9:16
Speaker 2: choose not to participate, you're out of court. So I
9:20
Speaker 2: think Texas has a tough case.
9:22
Speaker 1: Coming up next. More about the Supreme Court's environmental dock
9:25
Speaker 1: at this term. This is Bloomberg. The Supreme Court has
9:30
Speaker 1: three environmental cases on the dock at this term so far.
9:34
Speaker 1: I've been talking to environmental law professor Pat Parento of
9:38
Speaker 1: the Vermont Lawn Graduate School. Let's move from Texas to
9:41
Speaker 1: San Francisco. Now, this is surprising because you think of
9:44
Speaker 1: San Francisco in California as being one of the cities
9:49
Speaker 1: and states that are on the cutting edge of environmental regulations.
9:53
Speaker 1: At least that's the way I think of them anyway.
9:56
Speaker 2: So it's one of the most liberal cities in the country.
9:58
Speaker 1: Yeah, So San franci le Go is suing the EPA.
10:02
Speaker 2: So it's a reflection of San Francisco's terrible financial situation
10:07
Speaker 2: because what they're dealing with or what are called combined
10:09
Speaker 2: sewer overflows, and of course these are the combination of
10:13
Speaker 2: sewage and stormwater facilities in a major city like San Francisco,
10:18
Speaker 2: and they were built at a time when they didn't
10:21
Speaker 2: separate the sewage from the storm water, so they were combined.
10:26
Speaker 2: So when it rains really heavily, all of that untreated
10:29
Speaker 2: waste goes into the river or in San Francisco's case,
10:33
Speaker 2: into the ocean. So it's a huge problem. Many different
10:36
Speaker 2: cities have dealt with it in different ways. I was
10:39
Speaker 2: actually involved at one time in a lawsuit against the
10:42
Speaker 2: City of Portland, which didn't have a solution to its
10:45
Speaker 2: combined sewer overflow problems. Now it does, in part, I think,
10:49
Speaker 2: because of our lawsuit. But our lawsuit actually established the
10:53
Speaker 2: precedent that that issue in the San Francisco case, and
10:56
Speaker 2: it has to do with what are called narrative standards
11:00
Speaker 2: that are contained in the wastewater discharge permits under the
11:04
Speaker 2: Clean Water Act. And what it basically says is because
11:08
Speaker 2: combined sewer overflows contain basically a soup of pollutants, a
11:13
Speaker 2: toxic soup of plutiness. If you think about everything on
11:17
Speaker 2: a city's streets, parking lots, if you think about all
11:21
Speaker 2: the industrial sites that might be within an urban boundary,
11:26
Speaker 2: and when it rains really heavily, all of that crap
11:29
Speaker 2: comes off of all of those impervious is that a
11:31
Speaker 2: technical term, that's a technical term, that's legal term, is
11:35
Speaker 2: not defined in the Clean Water Act. But all the
11:39
Speaker 2: junk and crap and yick it comes off a city street,
11:42
Speaker 2: all that goes through these CSOs into the water. Okay,
11:46
Speaker 2: So you can't come up with a single technology, is
11:48
Speaker 2: the point. You can't come up with a numerical standard
11:52
Speaker 2: that says, reduce this pollutant by x part per million
11:56
Speaker 2: or whatever the standard is, right, So what you have
11:58
Speaker 2: to do is say you have to manage that effluent
12:02
Speaker 2: by whatever means you can, best management practices, building detention
12:07
Speaker 2: facilities to hold some of the rain water before it
12:11
Speaker 2: has to be treated so that it doesn't run right
12:14
Speaker 2: off into the ocean and so forth. So you have
12:17
Speaker 2: to come up with a more sophisticated control program, very
12:21
Speaker 2: expensive though you can separate the sewage from the storm water,
12:25
Speaker 2: but that means tearing up the existing system, and that's
12:29
Speaker 2: incredibly disruptive and expensive, and why San Francisco doesn't really
12:33
Speaker 2: want to do it right. But the point is that
12:36
Speaker 2: these narrative standards that you must comply with water quality standards.
12:41
Speaker 2: We can't give you a specific number. We can tell
12:45
Speaker 2: you you're going to have to have a system that
12:47
Speaker 2: maintains and doesn't violate water quality standards, which are based
12:52
Speaker 2: on uses of water, swimming, fishing, drinking fish, and wildlife whatever.
12:58
Speaker 2: There's lots of different beneficial uses of water that we
13:01
Speaker 2: put into these so called water quality standards. Every one
13:06
Speaker 2: of the national permits that are administered by the state,
13:10
Speaker 2: but their EPA derived permits, every one of them has
13:14
Speaker 2: to have a condition requiring compliance with water quality standards.
13:20
Speaker 2: That's what was being enforced by EPA in the San
13:24
Speaker 2: Francisco case. And San Francisco is basically arguing EPA has
13:29
Speaker 2: no authority to require compliance with anything other than numerical
13:35
Speaker 2: standards that are subject to technological controls.
13:40
Speaker 1: Is there Supreme Court precedent in this area?
13:44
Speaker 2: The Supreme Court in two different cases, one of which
13:47
Speaker 2: was written by the late Justice O'Connor in a case
13:51
Speaker 2: in Washington. We call it PUD number one of Jefferson
13:55
Speaker 2: County versus the State of Washington's Environmental Board. And in
14:00
Speaker 2: that case, Justice O'Connor very explicitly said, narrative standards are fine,
14:06
Speaker 2: and you must comply with water quality standards. And that
14:10
Speaker 2: means controlling anything that's going into the water that you
14:14
Speaker 2: can control, whether or not it's through technology or land juice,
14:18
Speaker 2: means whether it means maintaining certain flows of water you
14:23
Speaker 2: know that will dilute some of the pollutants and maintain
14:26
Speaker 2: these uses and so forth. So that was one of
14:29
Speaker 2: the decisions. Then there was a later one, the name
14:31
Speaker 2: of which escaped me at the moment, But there was
14:34
Speaker 2: another case in which the Supreme Court upheld narrative standards
14:39
Speaker 2: under the Clean Water Act. There's a provision in the Act,
14:42
Speaker 2: it's section thirteen eleven that explicitly authorizes EPA to set
14:47
Speaker 2: other limitations, not just technology effluent limitations, but quote other
14:52
Speaker 2: limitations necessary to protect water quality and water quality standards. So, frankly,
14:59
Speaker 2: if the Supreme follows its textualist approach to interpreting the statute,
15:06
Speaker 2: it should uphold the Ninth Circuit. Now, we know the
15:10
Speaker 2: Supreme Court rarely upholds the Ninth Circuit, right, so probably,
15:15
Speaker 2: if you're a betting person, you would have to say
15:17
Speaker 2: EPA is probably going to lose. It seems like EPA,
15:20
Speaker 2: you know, oftentimes loses in this court. So we won't
15:24
Speaker 2: know exactly why or how the Supreme Court might decide
15:29
Speaker 2: this case, but I think it could if it really
15:32
Speaker 2: looks at the language of the statue and the way
15:34
Speaker 2: it's been interpreted by the Court in previous cases, it
15:38
Speaker 2: may in the end uphold the Ninth Circuit.
15:41
Speaker 1: Do you think though, that the Supreme Court's continuing attempt
15:46
Speaker 1: to limit agency power and low or bride, you know,
15:49
Speaker 1: throwing away the Chevron doctrine, do you think that would
15:52
Speaker 1: play in this case?
15:54
Speaker 2: Well, they're not relying in this case. EPA is not
15:57
Speaker 2: relying on Chevron. That would be foolies, wouldn't it. They're
16:02
Speaker 2: basically saying this is the best reading of the statute.
16:04
Speaker 2: In fact, what EBA is arguing is it's the only
16:08
Speaker 2: reading of the statue. Now, if the Supreme Court can
16:11
Speaker 2: find a way around the plain text of the statue,
16:15
Speaker 2: then we know we're in serious trouble, right. But I'm
16:18
Speaker 2: just saying, my course, I have a bias here because
16:21
Speaker 2: I argued this issue many years ago in the Ninth
16:23
Speaker 2: Circuit and won it. But my view is that the
16:26
Speaker 2: text is clear and unmistakable, and the only thing that
16:31
Speaker 2: I thought would be vulnerable is the fact that because
16:35
Speaker 2: these are not specific numerical standards, an argument that we
16:40
Speaker 2: don't know what we have to do to comply might
16:43
Speaker 2: have been a good argument.
16:44
Speaker 3: Right.
16:45
Speaker 2: But according to the briefing that I've just read, the
16:49
Speaker 2: United States the Solicitor General is saying San Francisco abandoned
16:53
Speaker 2: that argument. They didn't make that argument in the Supreme Court.
16:58
Speaker 2: They did make that argument in the Ninth Circuit, but
17:01
Speaker 2: they didn't preserve it and maintain it in the Supreme Court.
17:04
Speaker 2: I'll be very interested to listen to the oral argument
17:06
Speaker 2: on this case and see if the court, the Supreme
17:10
Speaker 2: Court agrees that San Francisco has waived that argument, because
17:15
Speaker 2: to me, that would have been a stronger argument.
17:18
Speaker 1: Okay, let's move on to a case with a sort
17:19
Speaker 1: of strange name. Seven Court Infrastructure Coalition versus Eagle County,
17:25
Speaker 1: Colorado's say.
17:27
Speaker 2: About well this, Unfortunately, I have to say is another
17:32
Speaker 2: NEPA case, National Environmental Policy that case, and we all
17:36
Speaker 2: know what nipa's track record is in the Supreme Court,
17:40
Speaker 2: which is zero and fifteen, zero and fifteen.
17:44
Speaker 1: I knew it was bad, but I didn't know it
17:45
Speaker 1: was that bad.
17:46
Speaker 2: It's that bad. There have been fifteen different cases petitions
17:51
Speaker 2: for a review involving NEPA, and NEPA has never won
17:55
Speaker 2: in the Supreme Court. So they're going in with a turm.
17:58
Speaker 1: We know where the betting money.
18:00
Speaker 2: Yeah, we know where the betting money is on that one.
18:02
Speaker 2: But here's what the issue is. And I also have
18:04
Speaker 2: some history with this thing too. This is the Surface
18:07
Speaker 2: Transportation Board decision. And the STB is the reincarnation of
18:14
Speaker 2: the old Interstate Commerce Commission, and so the law that
18:18
Speaker 2: the STB administers is as old as the ICC, which
18:22
Speaker 2: is the early nineteen hundreds right. Anyway, what the STB
18:26
Speaker 2: does is license new rail line. And the rail line
18:30
Speaker 2: here is I think eighty five miles long in Utah,
18:34
Speaker 2: and it's moving oil, which they call something I'd never
18:37
Speaker 2: heard of before, waxy crude oil. It's oil by any
18:40
Speaker 2: other name from one place to another in the Uinta
18:44
Speaker 2: Basin of Utah. And then from there it gets you know,
18:49
Speaker 2: shipped all over the place. It gets shipped to Louisiana,
18:52
Speaker 2: it gets shipped to Mobile, Alabama, it might even go
18:55
Speaker 2: to the Fugit Sound. It gets into a huge network
18:59
Speaker 2: of rail lines that take oil all over the country
19:02
Speaker 2: to be refined and made into a variety of products,
19:05
Speaker 2: some of which I'm sure would be burned in power plants,
19:08
Speaker 2: some of which burned in homes, whatever, whatever products you
19:12
Speaker 2: make out of this waxy crude oil. This rail line
19:15
Speaker 2: simply puts it into interstate commerce and then it goes
19:19
Speaker 2: wherever it goes. So the question in this case is
19:23
Speaker 2: what responsibility does STB have to consider what we call
19:28
Speaker 2: the upstream effects of this rail line, which means the
19:33
Speaker 2: pumping and extraction of this oil product and all of
19:38
Speaker 2: the intended environmental consequences of that, plus the downstream effects
19:44
Speaker 2: which means where is the oil going, what is it
19:47
Speaker 2: going to be used for? And of course, because oil
19:51
Speaker 2: is a fossil fuel, how much carbon emissions are going
19:55
Speaker 2: to be produced as a result of all of this
19:59
Speaker 2: oil coming out of Utah and so ultimately being burned
20:03
Speaker 2: in one way or another.
20:05
Speaker 1: So where's the law right now on this.
20:07
Speaker 2: The SDB has been subject to earlier lawsuits or refusing
20:13
Speaker 2: to consider these upstream and downstream effects and specifically climate
20:19
Speaker 2: change effects of moving oil, mostly oil, in some cases coal.
20:24
Speaker 2: They also, of course move a hell of a lot
20:26
Speaker 2: of coal by rail, and SDB lost actually a series
20:31
Speaker 2: of cases, one of which I argued years ago, in
20:35
Speaker 2: which you know, the course ruled no, SDB, you do
20:39
Speaker 2: have to consider these upstream downstream effects, and you have
20:43
Speaker 2: to make a reasonable effort to quantify the emissions that
20:47
Speaker 2: would be generated by, you know, the fact that you're
20:50
Speaker 2: allowing this oil to be moved by rail. Here's what's
20:54
Speaker 2: changed in the Fiscal Responsibility Act of twenty twenty three.
21:00
Speaker 2: Congress actually, for the first time since nineteen seventy amended NIFA,
21:05
Speaker 2: and it did so in a way that required that agencies,
21:12
Speaker 2: in trying to consider these sort of i'll call them
21:14
Speaker 2: indirect effects of their agency actions, could only consider reasonably
21:21
Speaker 2: foreseeable consequences. So the case that the Supreme Court has
21:28
Speaker 2: taken ultimately boils down to that question, what are the
21:33
Speaker 2: reasonably foreseeable consequences of StB's approval of this eighty five
21:41
Speaker 2: mile rail line, and has.
21:44
Speaker 1: The Biden administration.
21:46
Speaker 2: Weighed in here here's where things get interesting. So the government,
21:50
Speaker 2: you know, the Justice Department, a solicitor General has weighed
21:54
Speaker 2: in both in support of STB but also in support
21:58
Speaker 2: of the petitioners in the case and against the respondents,
22:02
Speaker 2: against the environmental groups that brought the case, right, And
22:06
Speaker 2: what the Solicitor General's brief is saying is as a
22:10
Speaker 2: consequence in part of the twenty twenty three Amendment of NEPA,
22:16
Speaker 2: but also arguing even more fundamentally that there has to
22:21
Speaker 2: be a limit on an agency's responsibility to consider effects
22:26
Speaker 2: over which it really has no control. That's what this
22:30
Speaker 2: comes down to. I mean STB can't tell whoever's going
22:35
Speaker 2: to get this oil what to do with it or
22:37
Speaker 2: not do with it, right, so their authority really is
22:40
Speaker 2: quite limited to approving or not this rail line. And
22:45
Speaker 2: STB did actually consider some of the upstream and some
22:48
Speaker 2: of the downstream effects. They didn't go into the detail
22:52
Speaker 2: that the challengers wanted or that the DC Circuit, which
22:56
Speaker 2: is the court that heard this case and the petition
22:59
Speaker 2: for review comes from the DC Circuit. The DC Circuit
23:02
Speaker 2: found a lot of fault with the way SDB did
23:05
Speaker 2: it's analysis. It's a six hundred page environmental impact statement,
23:09
Speaker 2: so it's not a small thing, right, And there's another
23:12
Speaker 2: something like several thousand pages of comments that were delivered.
23:16
Speaker 2: So it's a huge record, is my point. It's a
23:19
Speaker 2: huge administrative record. It's not a case where the agency
23:23
Speaker 2: did nothing. It's a case where the DC Circuit said
23:26
Speaker 2: you didn't do enough. So my bet is the Supreme
23:30
Speaker 2: Court is going to overrule the DC Circuit, uphold the STB,
23:35
Speaker 2: and allow this line to be built.
23:37
Speaker 1: And just for a moment, talk about the Supreme Court's
23:42
Speaker 1: relationship with environmental laws over the last let's say ten
23:48
Speaker 1: or fifteen years.
23:49
Speaker 2: Well, it has not been a healthy relationship. Frankly, my
23:54
Speaker 2: dear friend, my mentor, Oliver Howse, professor now retired Emeritus
23:58
Speaker 2: Professor of Law Tulane University, has just written a book
24:04
Speaker 2: that's just out, in fact, called the Most Dangerous Branch
24:08
Speaker 2: of All. He goes through at least a dozen Supreme
24:11
Speaker 2: Court decisions on the environment and just takes them apart
24:16
Speaker 2: and says, as a matter of law, logic, and certainly consequence,
24:22
Speaker 2: they have been terrible decisions for protection of the natural environment,
24:26
Speaker 2: the human environment, public health across the board. So this
24:31
Speaker 2: is I think the most definitive analysis by a very
24:35
Speaker 2: very well respected scholar. I mean, he is in the
24:38
Speaker 2: pantheon of environmental scholarship, and for someone like him to
24:43
Speaker 2: reach a conclusion like that, it's pretty startling.
24:46
Speaker 1: The Roberts Court certainly has not been a friend of
24:50
Speaker 1: environmental laws or the EPA. Thanks so much, Pat for
24:53
Speaker 1: your insights as professor. Pat Parento of the Vermont Law
24:57
Speaker 1: and Graduate School. Broker Christine O'Reilly has sued City Group
25:03
Speaker 1: along with her employer TPIICAP and a UK based supervisor,
25:08
Speaker 1: alleging i CAAP encouraged her to go along with a
25:12
Speaker 1: City trader's advances in order to keep orders flowing. In
25:16
Speaker 1: court filings last week, both defendants denied O'Reilly's allegations and
25:22
Speaker 1: also contended that legal deficiencies would require dismissal of many
25:27
Speaker 1: of her claims. Citygroup denied it knew of any inappropriate
25:31
Speaker 1: conduct and also said it couldn't be held responsible for
25:35
Speaker 1: the alleged harassment, joining me as Bloomberg Legal reporter AVA
25:39
Speaker 1: Benny Morrison AVA tell us about the lawsuit.
25:42
Speaker 3: Sure, so, Christine O'Reilly was a broker at ICAP, and
25:46
Speaker 3: she alleges that she was forced to put up with
25:49
Speaker 3: harassment by a trader at City Group in return for
25:54
Speaker 3: keeping a lot of flow coming into ICAP. She says
25:58
Speaker 3: that I created a hostile work environment and encouraged her
26:03
Speaker 3: to put up with the trader's unwanted sexual advances relentless
26:08
Speaker 3: harassment over many years. And she says that she was
26:13
Speaker 3: forced to do that because City Group was such a
26:16
Speaker 3: big client for IKAT. She's also suing City for failing
26:20
Speaker 3: to essentially protect her from this trader's behavior. And she's
26:25
Speaker 3: also suing a supervisor at ICAP for telling her to
26:31
Speaker 3: go along with it and to play the game.
26:33
Speaker 1: Why is she suing City Group.
26:35
Speaker 3: She's suing City because the trader worked at City and
26:39
Speaker 3: she says that they failed to stop him. And she
26:42
Speaker 3: alleges that she spoke to one of the trader's supervisors
26:46
Speaker 3: and alerted him to the kind of things that the
26:49
Speaker 3: trader was doing and the messages that he was sending
26:51
Speaker 3: her at all hours of the day and night, the
26:54
Speaker 3: constant FaceTime requests, asking for photographs of her, and just
26:58
Speaker 3: essentially making her feel comfortable. We heard from City last week.
27:02
Speaker 3: They filed their response in court and said, you know,
27:05
Speaker 3: they do their best to create a safe and comfortable environment,
27:09
Speaker 3: particularly the women, but they will be asking the judge
27:12
Speaker 3: to dismiss the broker's claims against the bank, saying that
27:16
Speaker 3: they didn't owe a duty to her because she didn't
27:19
Speaker 3: work the city and they had no idea about some
27:22
Speaker 3: of the behavior that the trader engaged in.
27:26
Speaker 1: And how have the other defendants responded.
27:29
Speaker 3: One of the other defendants is a woman named Janie
27:32
Speaker 3: mccathey who was a supervisor at i CAP. We heard
27:35
Speaker 3: from her lawyers last week and they said they would
27:38
Speaker 3: also seek for dismissal of the claims against mccathy for
27:43
Speaker 3: lack of jurisdiction. They said that mccafy was not Irailey's
27:47
Speaker 3: supervisor and didn't even work for the same company. So
27:51
Speaker 3: I think that the latter argument is based on a technicality.
27:55
Speaker 3: You have ie Cap and then the parent company, but
27:57
Speaker 3: then you have consideraries, and Janie McAthey is based in
28:02
Speaker 3: London and the broker, Christine O'Reilly, is based in New York.
28:07
Speaker 3: In i caaps very detailed response to all of the
28:11
Speaker 3: broker's allegations. It denied most of them, but it did
28:15
Speaker 3: admit to some of the allegations that are backed up
28:20
Speaker 3: by documents. So that includes Jennie mccathey using an expletive
28:26
Speaker 3: when she was talking to Christine O'Reilly at work and
28:30
Speaker 3: in front of others, and using internal messages to essentially
28:34
Speaker 3: call her useless, among other things. So we expect to
28:38
Speaker 3: see motions from all three defendants City I, CAP and
28:42
Speaker 3: Jennie mccafey asking the judge too throughout this case.
28:46
Speaker 1: And O'Reilly is not suing the trader who allegedly harassed her.
28:52
Speaker 3: You know, the trader actually alleges subjected her to relentless
28:56
Speaker 3: harassment and unwanted sexual advances is named in her lawsuit,
29:01
Speaker 3: but isn't identified as a defendant. We understand that he
29:05
Speaker 3: no longer works at City but he was a trader
29:08
Speaker 3: on City groups high profile Delta one desk.
29:11
Speaker 1: And this isn't the first time there have been complaints
29:14
Speaker 1: about City Group's Equities Trading division.
29:18
Speaker 3: That's right, This lawsuit and these allegations come at a
29:21
Speaker 3: pretty interesting time for Citygroup. The Equities Trading Division has
29:25
Speaker 3: already been targeted by a series of complaints about the
29:30
Speaker 3: toxic culture there about how women are treated inside that
29:35
Speaker 3: particular division. Last year, there was a lawsuit filed by
29:40
Speaker 3: a woman who was a managing director, and we rarely
29:43
Speaker 3: hear from women who are that senior who are calling
29:47
Speaker 3: out this kind of behavior, and that managing director said
29:50
Speaker 3: that she was coerced into an abusive relationship and threatened
29:55
Speaker 3: by another colleague. So that lawsuit is still ongoing. Bloomberg
29:59
Speaker 3: has also done some reporting talking to other women who
30:04
Speaker 3: spent time in that division and got a bit of
30:06
Speaker 3: an insight into what it's like there, and it seems
30:09
Speaker 3: like it was a pretty tough environment for women to
30:11
Speaker 3: work in. They were leader and raise it on their
30:14
Speaker 3: looks and subject to other kind of gendered harassment. City
30:19
Speaker 3: says that it's trying to get on top of this,
30:21
Speaker 3: but this latest law suit by thecap broker Christine O'Reilly
30:26
Speaker 3: certainly doesn't do anything turk crall concerns around that particular
30:29
Speaker 3: trading division.
30:31
Speaker 1: We'll have to see how the judge rules in those
30:33
Speaker 1: expected motions to dismiss. Thanks so much, Ava. That's Bloomberg
30:37
Speaker 1: Legal reporter Eva Benny Morrison, and that's it for this
30:41
Speaker 1: edition of the Bloomberg Law Podcast. Remember you've can always
30:44
Speaker 1: get the latest legal news by subscribing and listening to
30:47
Speaker 1: the show on Apple Podcasts, Spotify, and at bloomberg dot com,
30:51
Speaker 1: slash podcast, slash Law. I'm June Grasso, and this is
30:55
Speaker 1: Bloomberg