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Trump Sentencing & Ban on Drilling in Federal Waters · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June grosseol from Bloomberg Radio.
• 0:08
  Speaker 2: The US Supreme Court is the only thing standing between
• 0:12
  Speaker 2: Donald Trump and the sentencing tomorrow on his hush money conviction. Today,
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  Speaker 2: New York's highest court refused to block his sentencing. On Wednesday,
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  Speaker 2: Trump had asked the Supreme Court to call off the sentencing,
• 0:25
  Speaker 2: but the justices have yet to respond to that request.
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  Speaker 2: Joining me is constitutional law expert Michael Dorf, a professor
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  Speaker 2: at Cornell Law School. Would it be unprecedented for the
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  Speaker 2: Supreme Court to intervene in a state case before sentencing.
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  Speaker 3: No.
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  Speaker 4: I mean there are extraordinary circumstances in which it's possible
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  Speaker 4: to obtain a stay from the US Supreme Court before
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  Speaker 4: final judgment in the state court proceedings. An example might
• 0:57
  Speaker 4: be if someone is scheduled to be executed and has
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  Speaker 4: a plausible claim that the execution would violate their Eighth
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  Speaker 4: Amendment rights against cruel and usual punishment, for example, And
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  Speaker 4: even if the state courts haven't finally ruled, if the
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  Speaker 4: execution is going to proceed, then the court can intervene.
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  Speaker 4: There's opportunity per something called sorceraria before judgment. This isn't
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  Speaker 4: a full on cert petition, but it is a stay application,
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  Speaker 4: So I don't think it'll be unprecedented to intervene at
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  Speaker 4: this stage. It is an extraordinarily high burden, however, that
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  Speaker 4: an applicant must satisfy in order to get this kind
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  Speaker 4: of relief.
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  Speaker 2: What are Trump's arguments asking the court to intervene to
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  Speaker 2: stop the sentencing.
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  Speaker 4: He basically makes three sorts of arguments. One seems not
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  Speaker 4: really well geared to what he's seeking, and that is
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  Speaker 4: he says that the trial judge improperly admitted evidence that
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  Speaker 4: constitutes official acts in violation of Trump the United States,
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  Speaker 4: which was the immunity ruling. Now in defense of judgement
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  Speaker 4: Sean that ruling hadn't come down yet at the time
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  Speaker 4: of the New York State trial. But that doesn't matter
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  Speaker 4: as long as the judgment isn't final. You're bound by
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  Speaker 4: decisions of the Supreme Court that come out, and so
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  Speaker 4: it's possible that that is a good claim on the merits,
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  Speaker 4: but that doesn't really justify extraordinary relief. Ordinarily, if you
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  Speaker 4: think the trial judge aired, even if they aired only
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  Speaker 4: retroactively because the Supreme Court changed the law on them,
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  Speaker 4: you have the full proceedings in the state court, and
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  Speaker 4: then you go to the Supreme Court. So I don't
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  Speaker 4: quite see why they're making that as a claim justifying
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  Speaker 4: extraordinary relief. The second thing they say is that in
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  Speaker 4: one of these cases where there is a claim of
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  Speaker 4: presidential immunity, there is an entitlement to an automatic stay
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  Speaker 4: tending the resolution of an appeal. The immunity question. That's
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  Speaker 4: a slightly better argument, because there the idea would be
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  Speaker 4: that this is really about whether you have immunity from
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  Speaker 4: criminal trial. If you have an immunity from the trial
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  Speaker 4: at all, then you might say, well, you should get
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  Speaker 4: everything you are entitled to by way of appeal before
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  Speaker 4: the case proceeds any further, because the immunity from trial
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  Speaker 4: is not just an immunity against the sentence or conviction.
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  Speaker 4: It's immunity against the proceedings itself. And so there there's
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  Speaker 4: a kind of logic to it. Although I should say
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  Speaker 4: that the New York response, which was filed earlier today,
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  Speaker 4: makes a fairly good point, which is to say that
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  Speaker 4: this isn't really about immunity. If you'll recall, in the
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  Speaker 4: immunity case in the Supreme Court last term, the Supreme
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  Speaker 4: Court basically had three holdings. Holding number one was that
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  Speaker 4: the president is absolutely immune for core executive functions. Holding
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  Speaker 4: number two is the president is at least presumptively immune
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  Speaker 4: for other official acts. And then holding number three was
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  Speaker 4: that the president is not immune for unofficial acts, but
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  Speaker 4: you can't use official act as evidence to prove unofficial acts. Here,
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  Speaker 4: Trump's argument is that some of the testimony consisted of
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  Speaker 4: official act and therefore shouldn't have been allowed to prove
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  Speaker 4: the unofficial act. And what New York argues in its
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  Speaker 4: response is that that piece of the holding from Trump
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  Speaker 4: against the United States is not about immunity, because it's
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  Speaker 4: a rule of evidence, and rules of evidence are necessarily
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  Speaker 4: going to be implicated in the course of a trial,
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  Speaker 4: not as an immunity to trial in the first place.
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  Speaker 4: That brings me to the third argument that Trump makes,
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  Speaker 4: and this I think is his best, although it's the
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  Speaker 4: most open ended, and he says simply that in the
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  Speaker 4: same way that a sitting president is thought to have
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  Speaker 4: immunity against criminal prosecution while president, that immunity should also
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  Speaker 4: extend to a elect. Now, this is a novel claim,
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  Speaker 4: mostly because a president elect has never been involved defend
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  Speaker 4: it in a criminal case before. But it's not a
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  Speaker 4: crazy argument.
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  Speaker 1: And if it's true, I guess you would.
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  Speaker 4: Say, yeah, criminal proceedings have to stop immediately.
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  Speaker 2: This is largely a symbolic sentencing, so dangers that Trump mentions,
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  Speaker 2: like the burden on him to have this sentencing when
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  Speaker 2: he's preparing for the transition, seem sort of bogus because
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  Speaker 2: Judge Murschan said that he's not going to sentence him
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  Speaker 2: to any time or any kind of penalty at all.
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  Speaker 2: So it seems to me like this is really about
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  Speaker 2: the stigma of Trump being the first felon to be
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  Speaker 2: sworn in as president of the United States. Do his
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  Speaker 2: arguments fail in that respect?
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  Speaker 4: I think so.
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  Speaker 3: Right.
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  Speaker 4: So, the argument for why you would extend presidential immunity
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  Speaker 4: to a president elect is that presidential unity is designed
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  Speaker 4: to enable the president to carry out the very important
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  Speaker 4: work of the executive branch, which has vested just in
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  Speaker 4: the president according to the unitary executive theory and so forth.
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  Speaker 4: And you might say that the presidential transition, which the
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  Speaker 4: president elect supervises, is of an equal stature, and so
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  Speaker 4: it should extend and therefore president shouldn't be subject to
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  Speaker 4: the kind of distractions that a criminal trial poses. But
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  Speaker 4: as you suggest, right, there are no distractions here. If
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  Speaker 4: Judgement Shaan sentences Trump to unconditional release, as he apparently
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  Speaker 4: is planning to do tomorrow, nothing changes. It's not as
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  Speaker 4: though he's going to have to go to Rikers Island
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  Speaker 4: or something and can't oversee the transition. And so Trump's
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  Speaker 4: argument has to be that every president elect is immune
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  Speaker 4: from all criminal proceedings, even if the rationale for that
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  Speaker 4: immunity doesn't seem to apply here. So it's a kind
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  Speaker 4: of argument that says, here's a rule. Well, I realized
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  Speaker 4: that the rule wasn't designed for people like me, but
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  Speaker 4: you should announce the rule anyway, and I should get
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  Speaker 4: the benefit of that rule.
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  Speaker 2: Trump used the Supreme Court's ruling last year on presidential immunity,
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  Speaker 2: and he delayed his sentencing to the point where he's
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  Speaker 2: now eleven days away from inauguration. So should he be
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  Speaker 2: able to take advantage of his own delay tactics and
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  Speaker 2: now say, well, I shouldn't be sentenced at all.
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  Speaker 4: Well, I mean whether he should be is a different
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  Speaker 4: question from whether he will be. I mean, all along,
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  Speaker 4: that has been the strategy in all of the criminal
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  Speaker 4: cases against Trump, which is that he delays as long
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  Speaker 4: as possible. And then you know, at earlier points he
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  Speaker 4: said things like, well, these cases are politically motivated against
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  Speaker 4: me as a candidate for president, even though the only
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  Speaker 4: reason that they were getting rolling during the pendency of
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  Speaker 4: his candidacy was because he delayed them from starting earlier
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  Speaker 4: when he wasn't yet a presidential candidate. So far, the
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  Speaker 4: delaying tactics have worked. He's benefited from the delays that
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  Speaker 4: he has caused. If he gets this stay from the
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  Speaker 4: Supreme Court, then yeah, he will have been able to
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  Speaker 4: benefit from the very delay that he was responsible for.
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  Speaker 4: I should say though, that you know, in response to
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  Speaker 4: your earlier question, it's not entirely clear why anybody cares
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  Speaker 4: about this. If Trump is sentenced, right, nothing's going to
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  Speaker 4: happen to him. And if he prevails ultimately on his
• 8:38
  Speaker 4: claim that the trial was marred by the introduction of
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  Speaker 4: the Official Act, evidence that will result in the reversal
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  Speaker 4: of the conviction. He also has some arguments under New
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  Speaker 4: York law for reversing the conviction. The stigma, in other words,
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  Speaker 4: would seem to be temporary. And on the other hand,
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  Speaker 4: he's already been convicted as a felon, So delaying the
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  Speaker 4: sentencing doesn't mean he is not a felon when he
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  Speaker 4: takes the oath of office, because any reversal of the conviction,
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  Speaker 4: if there is to be one on appeal, is at
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  Speaker 4: least weeks, probably months off.
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  Speaker 2: He's facing a court where there are three justices he appointed.
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  Speaker 2: You talked about that unprecedented immunity decision that saved him
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  Speaker 2: from having to go to trial in the federal criminal
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  Speaker 2: case over the subversion of the twenty twenty election. They
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  Speaker 2: also banned efforts to strike him from the ballot. So
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  Speaker 2: you need five justices to grant to stay. How likely
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  Speaker 2: is it that they would grant to stay at the sentencing?
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  Speaker 4: You know, I don't what's the Yogi bara line. I
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  Speaker 4: don't like to make predictions, especially about the future. I
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  Speaker 4: don't like to make for didictions about this Supreme Court
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  Speaker 4: because it's not really my expertise that you're asking their
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  Speaker 4: a question about psychology as much as anything. I don't
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  Speaker 4: think the grounds for the stay are very strong. But
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  Speaker 4: then I thought the grounds for presidential immunity in which
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  Speaker 4: he won were not very strong, and he got six
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  Speaker 4: votes for that or five and two thirds, depending on
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  Speaker 4: how you count Justice Barrett, who didn't agree with everything
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  Speaker 4: that the majority did. So I think on the merits
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  Speaker 4: this should be denied. But it wouldn't surprise me if
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  Speaker 4: the Court granted the stay, And it would also not
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  Speaker 4: surprise me if they granted the stay without writing much
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  Speaker 4: of an opinion, because they might not want to, you know,
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  Speaker 4: try to give reasons here, theory that they could give
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  Speaker 4: them later and then it doesn't matter.
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  Speaker 2: In some sense, Is this a chest of the Justice's
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  Speaker 2: willingness to accommodate Trump in his second presidency.
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  Speaker 4: I think it'll be perceived that way. But you know,
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  Speaker 4: as I say that, the stakes here are pretty low,
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  Speaker 4: and so you know, the real test of that will
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  Speaker 4: be when one of his substantive policies that has very
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  Speaker 4: serious implications gets up there. So, for example, if he
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  Speaker 4: tries through executive action or frankly, even through a statute
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  Speaker 4: to end birthright citizenship, which is protected by the Fourteenth Amendment,
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  Speaker 4: that'll be a test. I think that's a test the
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  Speaker 4: Supreme Court is likely to pass because it's just so
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  Speaker 4: clear that the Constitution extends birthright citizenship. But some of
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  Speaker 4: the other policies involving detention potentially of undocumented immigrants, involving
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  Speaker 4: other sort of forceful executive actions. Those I think could
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  Speaker 4: be the more important tests.
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  Speaker 2: And he'll have four years to test them. As you know,
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  Speaker 2: Democrats have questioned the objectivity of Justices Clarence Thomas and
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  Speaker 2: Samuel leto and Alda revealed in a statement that he
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  Speaker 2: spoke by phone this week with Trump about a job
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  Speaker 2: candidate for the new administration, but they didn't discuss pending
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  Speaker 2: cases or any other Supreme Court matters involving Trump. Are
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  Speaker 2: there any ethical problems with that?
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  Speaker 4: I have a fairly idiosyncratic view about these questions of
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  Speaker 4: legal ethics. That is, I think that a lot of
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  Speaker 4: the things that Justices Thomas and Alito and maybe some
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  Speaker 4: other justices have done over the last few years, and
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  Speaker 4: that we've learned about from some of the pro publica reporting,
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  Speaker 4: are highly problematic. I don't really think it makes much difference.
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  Speaker 4: That is to say, Justices Thomas and Alito are extremely conservative.
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  Speaker 4: Their views are sort of baked in and by their
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  Speaker 4: ideology more so than by anything that's going to happen
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  Speaker 4: in a conversation, so that it's hard for me to
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  Speaker 4: imagine that a conversation between Trump and Alito is going
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  Speaker 4: to sway Alito's vote one way or the other. But
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  Speaker 4: that's partly because I think that Alito is just inclined
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  Speaker 4: to vote in ways that would make Trump happy. Anyway,
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  Speaker 4: I don't think there is a prohibition on a president
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  Speaker 4: talking to a justice about something that isn't a matter
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  Speaker 4: pending before the court. I mean, you know, a lot
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  Speaker 4: of the justices will attend the State of the Union.
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  Speaker 4: A personnel matter. Strikes me as not especially problematic. I
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  Speaker 4: think if this were someone other than Justice Alito, any
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  Speaker 4: justice other than Alito, or maybe Thomas, and if it
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  Speaker 4: were a different president, I don't think it would be
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  Speaker 4: a big deal at all.
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  Speaker 2: Thanks so much, Mike Best. Professor Michael Dwarf of Cornell
• 13:35
  Speaker 2: Law School. Coming up, Trump's vowed to undo Biden's ban
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  Speaker 2: on offshore drilling in most federal waters. This is bloomberg.
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  Speaker 5: President Biden's actions yesterday on offshore drilling. Banning offshore drilling
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  Speaker 5: will not stand. I will reverse it immediately. It'll be
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  Speaker 5: done immediately, and we will drill, baby drill. We're going
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  Speaker 5: to be drilling in a lot of other locations, and
• 14:01
  Speaker 5: the energy costs are going to come way down. They'll
• 14:04
  Speaker 5: be brought down to a very low level.
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  Speaker 2: But reversing that ban will be difficult, if not impossible.
• 14:12
  Speaker 2: President Biden is racing to shure up his environmental legacy
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  Speaker 2: before Donald Trump takes office. In a last minute effort
• 14:20
  Speaker 2: to thwart Trump's drill baby drill intentions, on Monday, Biden
• 14:25
  Speaker 2: banned all future oil and gas drilling along most of
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  Speaker 2: the US coastline, protecting more than six hundred and twenty
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  Speaker 2: five million acres of federal waters. Biden you section twelve
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  Speaker 2: of the Outer Continental Shelf LANs Act, which gives presidents
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  Speaker 2: broad authority to ban drilling in federal waters and contains
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  Speaker 2: no language giving subsequent presidents the authority to revoke those bands.
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  Speaker 2: Joining me is environmental law expert Pat Parento, a professor
• 14:55
  Speaker 2: at the Vermont Law and Graduate School. Pat Trump wants
• 14:59
  Speaker 2: to reverse Biden's ban on drilling in those federal waters.
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  Speaker 2: Is there authority for him to do that?
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  Speaker 1: So we have one decision on this, and it's a
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  Speaker 1: lower court decision from the district court in the Northern
• 15:12
  Speaker 1: District of California, and this district court ruled that the
• 15:18
  Speaker 1: OCSLI does not provide for a subsequent president to revoke
• 15:24
  Speaker 1: a withdrawal from a prior president. So Trump, under that
• 15:28
  Speaker 1: ruling would not be able to reverse Biden's withdrawal. Only
• 15:32
  Speaker 1: Congress can do that, said this lower court. But again
• 15:36
  Speaker 1: it's a lower court decision, and people disagree, lawyers disagree,
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  Speaker 1: of course, about whether it's binding. Certainly isn't binding beyond
• 15:43
  Speaker 1: you know, the district court in California. The real question is,
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  Speaker 1: you know, is this something that might interest the Supreme
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  Speaker 1: Court because it does involve a very massive withdrawal of
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  Speaker 1: ocean waters for a oil and gas development, and you know,
• 15:58
  Speaker 1: people like Chief Justice Roberts expressed concerns about the scope
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  Speaker 1: of the president's authority under the Antiquities Act, which we
• 16:06
  Speaker 1: discussed before, to establish these large national monuments, which of
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  Speaker 1: course Biden has done as well. So it's possible that
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  Speaker 1: this is the kind of issue that might find its
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  Speaker 1: way to the Supreme Court. Certainly there's going to be
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  Speaker 1: litigation over it. Congress is also considering legislation to revoke
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  Speaker 1: Biden's withdrawal, and of course Congress could do that narrow
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  Speaker 1: margins in both houses, So we have no idea how
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  Speaker 1: that's going to sugar off in the end. But right
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  Speaker 1: now my view is Trump does not have the authority
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  Speaker 1: to revoke that withdrawal.
• 16:45
  Speaker 2: He wants to drill baby drill in the Arctic National
• 16:49
  Speaker 2: Wildlife Refuge, but the Interior Department has tried twice in
• 16:54
  Speaker 2: four years to auction off oil and gas leases there
• 16:58
  Speaker 2: and there hasn't been a single bidder.
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  Speaker 1: Yeah, the market is flooded, is the answer. You know,
• 17:05
  Speaker 1: we are at record levels of production of oil and gas,
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  Speaker 1: so for right now, there's no demand. That could change.
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  Speaker 1: But for right now, this isn't the only sale. There
• 17:16
  Speaker 1: was another one on the Alaska coast where there were
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  Speaker 1: no bidders, and finally the state of Alaska stepped in
• 17:23
  Speaker 1: and put together a kind of a rough coalition of
• 17:26
  Speaker 1: bidders that you know, bid on a smaller portion than
• 17:29
  Speaker 1: was offered. So the market is soft, it's flooded, and
• 17:34
  Speaker 1: I don't anticipate that there's actually going to be much
• 17:36
  Speaker 1: demand in the near future for oil and gas. Contrary
• 17:39
  Speaker 1: to the drill baby drill mandate. You know, you can't
• 17:42
  Speaker 1: order companies to bid on these things.
• 17:45
  Speaker 2: So is it contrary to his climate initiatives that the
• 17:49
  Speaker 2: US has become the largest oil and gas producer in history.
• 17:53
  Speaker 2: During Biden's term, you would.
• 17:55
  Speaker 1: Think that irony wouldn't be lost on at least most
• 17:58
  Speaker 1: people seem to be lost on the Trump crowd and
• 18:02
  Speaker 1: the incoming Secretary of Energy, Governor Bergham, who also thinks
• 18:06
  Speaker 1: that we're going to ramp up oil and gas as
• 18:08
  Speaker 1: well as coal development. I guess, but the same thing
• 18:11
  Speaker 1: is true with coal now. In other parts of the world,
• 18:13
  Speaker 1: coal is booming, but not in the United States. We're
• 18:15
  Speaker 1: not building new coal plants. It's hard enough to keep
• 18:18
  Speaker 1: the ones running in competition with gas and in some
• 18:21
  Speaker 1: parts of the country wind and solar. So I don't
• 18:25
  Speaker 1: know where they think the market is for this drill,
• 18:28
  Speaker 1: baby drill energy dominance agenda, but we'll find out.
• 18:32
  Speaker 2: This week, Biden established two new national monuments in California
• 18:37
  Speaker 2: to honor Native American tribes. Together, they'll protect more than
• 18:42
  Speaker 2: eight hundred and forty eight thousand acres of public land
• 18:45
  Speaker 2: from drilling and mining. He's established ten new national monuments,
• 18:49
  Speaker 2: expanded two existing national monuments, and restored three more, and
• 18:55
  Speaker 2: the White House says his protection of national monuments has
• 18:59
  Speaker 2: safeguarded nearly nine million acres of federal lends and waters.
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  Speaker 2: Can Trump reverse.
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  Speaker 1: Those that's under the Antiquities Act, And the answer so
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  Speaker 1: far is no. There is some president for redrawing the
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  Speaker 1: boundaries of some of these national monuments. Sometimes that's been
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  Speaker 1: done by Congress. Sometimes that actually has been done by
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  Speaker 1: subsequent administrations. But we haven't seen what Trump is proposing
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  Speaker 1: to do, which is either wholesale reduction by you know,
• 19:28
  Speaker 1: up to in the case of the Bearziers Monument in Utah,
• 19:33
  Speaker 1: something like eighty percent reduction, which would essentially destroy, you know,
• 19:38
  Speaker 1: the designation that Biden and his predecessor Obama had issued. Right, So,
• 19:44
  Speaker 1: there's no law that says that a subsequent president, in
• 19:48
  Speaker 1: this case Trump has that kind of authority to reverse
• 19:51
  Speaker 1: what prior presidents have done under the Antiquities Act. But
• 19:54
  Speaker 1: that's one where the Chief Justice Roberts has signaled an
• 19:58
  Speaker 1: interest in at least looking at that question, so, you know,
• 20:02
  Speaker 1: put a pin in it. That's one that could be
• 20:04
  Speaker 1: ticketed for the Supreme Court.
• 20:07
  Speaker 2: So what happened when during his first term Trump shrianked
• 20:11
  Speaker 2: the Bears Years and Grants Escalonta national monuments. Was that litigated?
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  Speaker 1: It was litigated. There was never a decision by the
• 20:20
  Speaker 1: time that it was working its way through the courts,
• 20:24
  Speaker 1: Biden won the twenty twenty election, and you know, quickly
• 20:29
  Speaker 1: reversed the Trump order revoking the earlier designation. So we
• 20:34
  Speaker 1: never got a ruling on that conflict the first round,
• 20:37
  Speaker 1: I would say, of litigation over bears ears in some
• 20:39
  Speaker 1: of the other monuments. This time around, I suppose there's
• 20:43
  Speaker 1: a greater likelihood of getting some kind of judicial decisions.
• 20:47
  Speaker 1: And then the question is, you know, will it be appealed, yes,
• 20:50
  Speaker 1: and will the Supreme Court take it? We don't know.
• 20:52
  Speaker 2: Tell me about Biden's Legacy's he going to go down
• 20:56
  Speaker 2: as you know, the best president for parteiding the environment.
• 21:02
  Speaker 1: Boy, it looked that way, didn't it. I mean, if
• 21:04
  Speaker 1: you look at passage. Of the three big bills were
• 21:07
  Speaker 1: the initial infrastructure, Bipartisan Infrastructure Bill, to some extent, the
• 21:12
  Speaker 1: Chips Bill because that's key to some of the clean
• 21:15
  Speaker 1: air energy sources we need. And of course the big
• 21:18
  Speaker 1: one was the Inflation Reduction Act. And now I see
• 21:21
  Speaker 1: all kinds of commentary about, well, you know, it may
• 21:25
  Speaker 1: be that a lot of what Biden did will be
• 21:28
  Speaker 1: time limited, it won't carry forward into the future. Some
• 21:32
  Speaker 1: of what he did will be undone by this Republican Congress,
• 21:36
  Speaker 1: who's expressed all kinds of opposition to what Biden did.
• 21:40
  Speaker 1: Although when you look at the benefits of the Inflation
• 21:43
  Speaker 1: Reduction Act, eighty percent of the benefits are in Republican districts.
• 21:47
  Speaker 1: So it's kind of hard to really measure what the
• 21:51
  Speaker 1: final impact of what Biden did, my own view is, given,
• 21:58
  Speaker 1: you know, the realities, the political realities of what he
• 22:01
  Speaker 1: was facing. He did an enormous amount. He did do
• 22:05
  Speaker 1: more than any other president. Whether that, you know, turns
• 22:08
  Speaker 1: the tides so to speak, on climate is certainly an
• 22:12
  Speaker 1: open question. And even if everything he did panned out,
• 22:16
  Speaker 1: it isn't enough. We know that, I mean, the problem
• 22:18
  Speaker 1: that we're facing is so monumental, so overwhelming, that even
• 22:23
  Speaker 1: those major accomplishments pale in comparison to what's actually needed,
• 22:28
  Speaker 1: not only in the United States, but of course globally.
• 22:31
  Speaker 2: Explain the Inflation Reduction Act, which I think is not
• 22:36
  Speaker 2: a great name for this law.
• 22:38
  Speaker 3: Yeah, it is clearly the most significant climate legislation at
• 22:42
  Speaker 3: the national level that we've seen. In fact, I would
• 22:44
  Speaker 3: say probably it's one of the most significant in the world.
• 22:47
  Speaker 3: It talks about investing three hundred and sixty billion dollars
• 22:51
  Speaker 3: in renewable energy, wind and solar and electric vehicles and
• 22:55
  Speaker 3: buildings and heat pumps and all kinds of things. A
• 22:58
  Speaker 3: lot of benefits for its primary mechanism is tax credits
• 23:04
  Speaker 3: and other kinds of incentives. So it's not a regulatory
• 23:07
  Speaker 3: program at all. It's quite the contrary. It's using the
• 23:10
  Speaker 3: marketplace and it's designed to leverage even substantially more private capital,
• 23:15
  Speaker 3: and it's doing that. In fact, it's doing it in
• 23:18
  Speaker 3: Republican districts all across the country. It will be interesting
• 23:21
  Speaker 3: to see how the new Congress and the House is
• 23:25
  Speaker 3: going to deal with Trump's promise to freeze all further
• 23:29
  Speaker 3: funding under the Inflation Reduction Act and try to quote
• 23:33
  Speaker 3: claw back some of the money that's already been obligated.
• 23:36
  Speaker 3: This is going to come down to some legal questions
• 23:38
  Speaker 3: about how much of the money is Biden able to
• 23:42
  Speaker 3: actually put under contracts, you know, in other words, lock
• 23:45
  Speaker 3: it up through legal mechanisms before his time runs out.
• 23:49
  Speaker 3: And I know the administration from all the accounts is
• 23:52
  Speaker 3: working feviously, night and day to push as much of
• 23:55
  Speaker 3: that money out the door and get it under legally
• 23:58
  Speaker 3: binding a green that Trump can't easily repeal or revoke.
• 24:03
  Speaker 3: Of course, with the Republicans in control of both the
• 24:07
  Speaker 3: House and the Senate by slim majorities, Even so, I
• 24:10
  Speaker 3: expect to see legislation introduced to try to quote claw
• 24:15
  Speaker 3: back some of the authorization that hasn't been completely obligated,
• 24:19
  Speaker 3: and maybe even some that has been obligated. Whether the
• 24:23
  Speaker 3: Republicans have the muscle to push all that through both
• 24:25
  Speaker 3: houses is an open question because of the close margins.
• 24:29
  Speaker 3: But I think it's fair to say that the promise
• 24:32
  Speaker 3: of the Inflation Reduction Act to really move the needle
• 24:36
  Speaker 3: on transitions to cleaner energy and transportation is going to
• 24:40
  Speaker 3: be stalled, if not thwarted altogether. And we certainly won't
• 24:44
  Speaker 3: meet the commitments we've made under the Paris Agreement, And
• 24:47
  Speaker 3: of course Trump will undoubtedly withdraw its from the Paris
• 24:51
  Speaker 3: Agreement once again.
• 24:52
  Speaker 2: Do you think on this second go round the Trump
• 24:55
  Speaker 2: administration will be more practiced in how to overturn these
• 25:01
  Speaker 2: regulations in the proper way?
• 25:04
  Speaker 1: Yeah. Their track record in court was one of the
• 25:06
  Speaker 1: worst of any administration in history. They lost eighty percent
• 25:11
  Speaker 1: of the cases in which they were challenged. You have
• 25:14
  Speaker 1: to believe they'll do better this time, that they'll hire
• 25:17
  Speaker 1: and bring in to the administration really accomplished lawyers, managers,
• 25:24
  Speaker 1: people who know government, you know, how to get things
• 25:27
  Speaker 1: done in Washington. And that's no small thing. But honestly,
• 25:31
  Speaker 1: given his worst instincts and given his demand that everybody
• 25:35
  Speaker 1: be loyal, do what I want, regardless of whether it's
• 25:38
  Speaker 1: right or wrong, or regardless of what you think about it,
• 25:40
  Speaker 1: you know, my view is they're going to make a
• 25:42
  Speaker 1: lot of big mistakes. Look at what he just said about, Oh,
• 25:45
  Speaker 1: I have the authority on day one to reverse Biden's
• 25:48
  Speaker 1: withdrawal of the ocean waters. He doesn't have that authority.
• 25:52
  Speaker 1: He may think he does, but the course will decide
• 25:55
  Speaker 1: that right. So, if that's what happens, if people are
• 25:58
  Speaker 1: going to have to follow his order right over the cliff,
• 26:01
  Speaker 1: so to speak, then they're going to repeat the mistakes
• 26:04
  Speaker 1: they made the first time. Our laws, and you know,
• 26:07
  Speaker 1: to some extent people who complain about the dense regulatory
• 26:12
  Speaker 1: environment we live with, it's true, it is dense, but
• 26:15
  Speaker 1: it's law. You know, you can't just wave your arms
• 26:18
  Speaker 1: around and make it go away. There are procedures that
• 26:21
  Speaker 1: have to be followed, and yes, there are questions about
• 26:25
  Speaker 1: agency authority under these various statutes. And yes, the Supreme
• 26:29
  Speaker 1: Court has said we will no longer defer to agency's
• 26:32
  Speaker 1: interpretation of their authority when it's unclear will make that decision.
• 26:37
  Speaker 1: But that's the case by case kind of analysis and determination,
• 26:41
  Speaker 1: right that takes time more than four years. Frankly, you know,
• 26:45
  Speaker 1: the average big case anyway, environmental case can easily take
• 26:49
  Speaker 1: four years to work its way through the court system.
• 26:53
  Speaker 1: So this idea that they're going to be able to
• 26:55
  Speaker 1: just turn everything upside down on day one, it's just
• 26:58
  Speaker 1: not going to happen.
• 27:00
  Speaker 2: Next how Mexico's president troll Trump over his promise to
• 27:04
  Speaker 2: change the name of the Gulf of Mexico. This is Bloomberg.
• 27:10
  Speaker 2: President Joe Biden is racing to shure up his environmental
• 27:14
  Speaker 2: legacy before Donald Trump takes office. Just this week, he
• 27:19
  Speaker 2: banned all future oil and gas drilling along most of
• 27:22
  Speaker 2: the US coastline, protecting more than six hundred and twenty
• 27:26
  Speaker 2: five million acres of federal waters, and he established two
• 27:30
  Speaker 2: new national monuments in California to honor Native American tribes.
• 27:35
  Speaker 2: Trump has vowed to undo Biden's ban on offshore drilling.
• 27:40
  Speaker 2: He's also a call for the repeal of the Inflation
• 27:42
  Speaker 2: Reduction Act, Biden's signature climate law, and he wants to
• 27:46
  Speaker 2: get rid of virtually all of the Biden administration's climate
• 27:50
  Speaker 2: change regulations. But those moves will all face litigation, and
• 27:55
  Speaker 2: litigation takes time. I've been talking to Professor Pat Parento
• 27:59
  Speaker 2: of the Vermont Line Law and Graduate School. Pat, how
• 28:02
  Speaker 2: long do these environmental challenges usually take in court? And
• 28:08
  Speaker 2: will the Trump administration be helped by the Supreme Court's
• 28:12
  Speaker 2: rulings cutting back on agency power?
• 28:15
  Speaker 1: You know, to some extent people who complain about the
• 28:19
  Speaker 1: dense regulatory environment we live with, it's true it is dense,
• 28:23
  Speaker 1: but it's law. You know. You can't just wave your
• 28:26
  Speaker 1: arms around and make it go away. There are procedures
• 28:29
  Speaker 1: that have to be followed. And yes, there are questions
• 28:32
  Speaker 1: about agency authority under these various statutes. And yes, the
• 28:36
  Speaker 1: Supreme Court has said we will no longer defer to
• 28:40
  Speaker 1: agency's interpretation of their authority. When it's unclear, we'll make
• 28:44
  Speaker 1: that decision. But that's the case by case kind of
• 28:47
  Speaker 1: analysis and determination, right that takes time more than four years. Frankly,
• 28:53
  Speaker 1: you know, the average big case anyway, environmental case can
• 28:57
  Speaker 1: easily take four years to work its way through the
• 29:00
  Speaker 1: court system. So this idea that they're going to be
• 29:03
  Speaker 1: able to just turn everything upside down on day one,
• 29:06
  Speaker 1: it's just not going to happen.
• 29:08
  Speaker 2: And when the Trump administration wants to undo a Biden rule,
• 29:12
  Speaker 2: will they have to go through the formal notice and
• 29:15
  Speaker 2: comment rulemaking process to repeal and rewrite the Biden regulations.
• 29:22
  Speaker 3: In Trump one, EPA and several other agencies, Interior Department
• 29:27
  Speaker 3: failed to follow the requirement of the Administrative Procedure Act
• 29:32
  Speaker 3: and found that they lost about eighty some percent of
• 29:36
  Speaker 3: the cases in which they were challenged this time around.
• 29:39
  Speaker 3: They may be smarter about that. You'd probably think they
• 29:42
  Speaker 3: would be smarter. But if they're in a hurry, if
• 29:45
  Speaker 3: they're in a rush to show progress on this deregulatory program,
• 29:50
  Speaker 3: they're probably going to be cutting some corners and skipping
• 29:53
  Speaker 3: some steps that are required by law, including notice and comment.
• 29:57
  Speaker 3: And you know, the environmental community is geared and ready
• 30:00
  Speaker 3: to go. They know the playbook, and they're beefing up
• 30:03
  Speaker 3: their staffs. They're hiring more lawyers, they're going to be
• 30:06
  Speaker 3: doing more fundraising. You know, the the Ara Club alone
• 30:09
  Speaker 3: filed over four hundred lawsuits against Trump attempts to roll
• 30:12
  Speaker 3: back rules. When you think about Earth Justice, the Natural
• 30:16
  Speaker 3: Resources Defense Counsel, and many other major environmental groups, they
• 30:21
  Speaker 3: are going to be challenging Trump's and Administrator Zelden's attempts
• 30:25
  Speaker 3: to repeal and revoke these rules. It remains to be
• 30:29
  Speaker 3: seen how that's going to all play out in court.
• 30:32
  Speaker 3: We know there are a lot of Trump judges on
• 30:34
  Speaker 3: the federal bench, but there's still going to be dozens
• 30:38
  Speaker 3: of vacancies on the federal bench and maybe more over
• 30:42
  Speaker 3: the four years of the next Trump administration. So you know,
• 30:46
  Speaker 3: the prospect for how these these attempts to deregulate are
• 30:51
  Speaker 3: going to play out in court, it's an open question
• 30:53
  Speaker 3: right now. Lots of litigation, for sure, wins and losses
• 30:57
  Speaker 3: both ways, for sure, But you know Trump can't do
• 31:01
  Speaker 3: this with the snap of a finger. A lot of
• 31:03
  Speaker 3: it is going to have to go through court before
• 31:06
  Speaker 3: it's resolved.
• 31:07
  Speaker 2: I want to touch on the Endangered Species Act. The
• 31:11
  Speaker 2: Biden administration had restored some protections that the first Trump
• 31:15
  Speaker 2: administration had rolled back, and there's been a flurry of
• 31:19
  Speaker 2: last minute activity on endangered Species by the Biden administration,
• 31:24
  Speaker 2: including keeping the grizzly bear as a threatened species through
• 31:29
  Speaker 2: much of the Western United States. Do you think the
• 31:32
  Speaker 2: second Trump administration will take aim at the Endangered Species
• 31:37
  Speaker 2: Act again?
• 31:38
  Speaker 3: Yeah, I think the Endangered Species factor is in serious trouble.
• 31:42
  Speaker 3: That's the law that I know, have been involved with
• 31:45
  Speaker 3: for literally fifty years, and I litigated some of the
• 31:48
  Speaker 3: early cases under the Act. So both in Congress, you know,
• 31:53
  Speaker 3: and through the administration, I think the Act is in
• 31:56
  Speaker 3: serious trouble. Even though it's highly popular with the public,
• 32:00
  Speaker 3: at least when you pull the public on do they
• 32:02
  Speaker 3: want to see strong protections for endangered species. You know,
• 32:05
  Speaker 3: there's a very high percentage sometimes eighty or even ninety
• 32:08
  Speaker 3: percent public, you know, support for protecting endangered species in
• 32:14
  Speaker 3: their habitat. But you know, anytime that that interferes with
• 32:19
  Speaker 3: other commodity uses, whether it's oil and gas or mining
• 32:23
  Speaker 3: for copper or other valuable minerals, or grazing or any
• 32:28
  Speaker 3: any other major economic interest, you know it's going to
• 32:32
  Speaker 3: lose out. It's one of those laws because it's trying
• 32:36
  Speaker 3: to protect the entire sort of spectrum of species all
• 32:39
  Speaker 3: the way down to plants and insects, And of course,
• 32:42
  Speaker 3: when you think of insects, you think, well, why are
• 32:45
  Speaker 3: we protecting insects? But when you think about pollinators, that's
• 32:49
  Speaker 3: one good reason why we protect insects. There are a
• 32:52
  Speaker 3: keystone species for a lot of food crops, and you
• 32:56
  Speaker 3: can go down the list. There's lots of reasons, economic
• 32:59
  Speaker 3: reasons why protect and species makes sense and why protecting
• 33:03
  Speaker 3: their habitat is really another way of protecting the communities
• 33:06
  Speaker 3: that live within these areas and helping with climate resilience
• 33:11
  Speaker 3: and dealing with floods and storms and droughts and wildfires
• 33:15
  Speaker 3: and all the rest of that. The healthier your ecosystem,
• 33:18
  Speaker 3: the better able you are to withstand some of the
• 33:21
  Speaker 3: impacts from climate change. So all of this now is
• 33:25
  Speaker 3: going to be debated and argued, but it's sure scenes clear.
• 33:29
  Speaker 3: And you know protection for species which has been not
• 33:33
  Speaker 3: working out very well. I mean, we're still losing an
• 33:35
  Speaker 3: awful lot of habitat every year necessary for protecting these species.
• 33:40
  Speaker 3: You know, looks like that trend line is also going
• 33:42
  Speaker 3: to be in the negative as well. States again can
• 33:46
  Speaker 3: step up if they're willing to and do a lot
• 33:49
  Speaker 3: more of this land conservation work, but you know, they're
• 33:52
  Speaker 3: also under a lot of political stress from their constituents
• 33:56
  Speaker 3: to open up public lands for even further extractions and
• 34:00
  Speaker 3: in development. So right now, it's a pretty hazy picture,
• 34:05
  Speaker 3: I would say, for the future of a lot of
• 34:08
  Speaker 3: these species that are really just clinging to existence and
• 34:11
  Speaker 3: rely on government efforts to turn the trend of extinction
• 34:16
  Speaker 3: around into a more positive direction.
• 34:19
  Speaker 2: We talked about how Trump's promise at his press conference
• 34:22
  Speaker 2: on Monday to reverse Biden's sweeping ban on oil and
• 34:27
  Speaker 2: natural gas drilling in US coastal waters immediately won't happen
• 34:33
  Speaker 2: immediately and may not happen at all. Listen to what
• 34:36
  Speaker 2: else he promised at that press conference.
• 34:40
  Speaker 5: A future date pretty soon, we're going to change because
• 34:44
  Speaker 5: we do most of the work there and it's ours,
• 34:47
  Speaker 5: we're going to be changed. You're sort of the opposite
• 34:49
  Speaker 5: of Biden, where he's closing everything up, essentially getting rid
• 34:52
  Speaker 5: of fifty to sixty trillion dollars worth of assets. We're
• 34:56
  Speaker 5: going to be changing the name of the Gulf of Mexico.
• 35:00
  Speaker 5: Go to the Gulf of America, which has a beautiful
• 35:04
  Speaker 5: ring that covers a lot of territory. The Gulf of
• 35:07
  Speaker 5: America what a beautiful name, and it's appropriate. It's appropriate.
• 35:13
  Speaker 3: Well.
• 35:13
  Speaker 2: Mexico's President, Claudia Schenbaum, responded sarcastically to Trump's proposal to
• 35:20
  Speaker 2: change the name of the Gulf of Mexico at her
• 35:23
  Speaker 2: daily press briefing.
• 35:26
  Speaker 6: Mexico is Nai Nazio, suns perro, eltient mammos, America Mexicana, y.
• 35:42
  Speaker 3: So.
• 35:43
  Speaker 2: Standing before a global map, she proposed that North America
• 35:47
  Speaker 2: be renamed America Mexicana or Mexican America because a founding
• 35:54
  Speaker 2: document dating from eighteen fourteen that preceded Mexico's constitution referred
• 36:00
  Speaker 2: to it that way. That sounds nice, no, she added, pat,
• 36:05
  Speaker 2: I have to say that this Trump suggestion bewildered me.
• 36:09
  Speaker 2: It's been called the Gulf of Mexico for at least
• 36:12
  Speaker 2: four hundred years. Who has the power to rename a
• 36:16
  Speaker 2: body of water that touches several countries?
• 36:20
  Speaker 3: Right?
• 36:21
  Speaker 1: There is no central authority for that, not globally or internationally,
• 36:25
  Speaker 1: and not even domestically. There is an Office of Mapping
• 36:28
  Speaker 1: in Cartography in the Department of Interiors, which keeps track
• 36:34
  Speaker 1: of the names of various water bodies all over the world,
• 36:37
  Speaker 1: and there are disputes about, for example, whether it's the
• 36:40
  Speaker 1: Persian Gulf or the Arabian Gulf. And this office actually
• 36:46
  Speaker 1: sometimes maintains dual names of water bodies. But there's no
• 36:50
  Speaker 1: one authority to say, yes, we can change the name
• 36:54
  Speaker 1: of the Gulf of Mexico to the Gulf of America.
• 36:57
  Speaker 1: I mean, you know, maybe Trump will issue some kind
• 37:01
  Speaker 1: of order declaring that will it have any legal authority? No?
• 37:06
  Speaker 1: Will it make any difference? No? Will it reduce the
• 37:10
  Speaker 1: price of eggs? No, it's a waste of time.
• 37:14
  Speaker 2: It may be a waste of time. But Representative Marjorie
• 37:18
  Speaker 2: Taylor Green, Republican of Georgia, said that she plans to
• 37:21
  Speaker 2: introduce legislation to change the name of the Gulf of
• 37:25
  Speaker 2: Mexico through an Act of Congress. She wrote on x
• 37:29
  Speaker 2: I've directed my staff to immediately begin drafting legislation to
• 37:34
  Speaker 2: change the name of the Gulf of Mexico to the
• 37:36
  Speaker 2: Gulf of America. This is important to begin funding the
• 37:39
  Speaker 2: changing of maps for all agencies within the federal government,
• 37:43
  Speaker 2: like the Federal Aviation Administration and the military. So more
• 37:47
  Speaker 2: to come on this. Thanks so much, Pat, It's always
• 37:49
  Speaker 2: a pleasure. That's Professor Pat PARENTO of their mood, law
• 37:52
  Speaker 2: and graduate school. And that's it for this edition of
• 37:55
  Speaker 2: The Bloomberg Law Show. Remember you can always get the
• 37:58
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• 38:01
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• 38:06
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• 38:13
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