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Funding Confusion, Climate Whiplash & Fish Caught in Culture Wars · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: It was the biggest about face in President Donald Trump's
0:12
Speaker 2: first two weeks in office, and it happened with lightning speed.
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Speaker 2: On Monday night, the White House Budget Office issued a
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Speaker 2: memo ordering a freeze on federal funds that caused mass
0:24
Speaker 2: confusion and chaos across the country, with fears of its
0:28
Speaker 2: potential to disrupt a massive segment of federal spending that's
0:32
Speaker 2: relied on by local government, schools, and police departments. On Tuesday,
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Speaker 2: twenty two, Democratic attorneys general, including those from New York
0:42
Speaker 2: and California, sued the Trump administration for what they said
0:46
Speaker 2: was a clearly illegal action.
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Speaker 3: Not only does this administration's new policy but people at risk,
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Speaker 3: but it is plainly unconstitutional. The president does not get
0:57
Speaker 3: to decide which laws to enforce and for whom.
1:01
Speaker 4: He's a president, he has a great deal of authority,
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Speaker 4: but he's not a king. We have a democratic structure
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Speaker 4: with shared authority through different branches between the federal government
1:10
Speaker 4: and the states. He can act within his authority, but
1:12
Speaker 4: not outside of it. He has acted far outside of
1:16
Speaker 4: his authority.
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Speaker 2: Here, a DC federal judge put a temporary block on
1:20
Speaker 2: the funding freeze, and on Wednesday, the White House rescinded
1:25
Speaker 2: the memo ordering the freeze, but said it was not
1:28
Speaker 2: rescinding the federal funding freeze. A Rhode Island federal judge
1:33
Speaker 2: call that a difference without a distinction and said he'll
1:36
Speaker 2: still issue a temporary restraining order blocking the administration from
1:41
Speaker 2: freezing federal funds. Joining me is Alex Hontos, a partner
1:45
Speaker 2: at Dorsey and Whitney and a former Justice Department attorney.
1:49
Speaker 2: Alex how broad was the scope of this order?
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Speaker 5: So the omb order issued on Monday by the administration
1:57
Speaker 5: was exceptionally broad, covering all all forms of federal assistance,
2:02
Speaker 5: with the exception of a few carve outs. So Medicare
2:06
Speaker 5: was carved out, for example, but notably Medicaid was not mentioned.
2:10
Speaker 5: So it covered on its face trillions of dollars of
2:14
Speaker 5: federal spending. That's about as broad as you can get.
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Speaker 2: In his first administration, Trump issued a Muslim travel ban,
2:22
Speaker 2: and it took three tries, three different versions before it
2:26
Speaker 2: got approval from the Supreme Court. Is there a way
2:29
Speaker 2: for him to rewrite this and try again?
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Speaker 5: Well, I certainly expect that this will not be the
2:36
Speaker 5: end of the administration's efforts to root out programs that
2:42
Speaker 5: it believes should not be in federal spending policies, procedures,
2:47
Speaker 5: that kind of thing. So I think they're going to
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Speaker 5: try again. But what is striking about this is instead
2:53
Speaker 5: of targeting specific programs, they did a blanket pause. And
2:59
Speaker 5: you know, you would do a census of specific programs,
3:03
Speaker 5: first identify programs that were perhaps against your policy objectives,
3:09
Speaker 5: and then work those programs, And that's not the angle
3:12
Speaker 5: that they came at this from. They might change that, though,
3:15
Speaker 5: and we might see that next, and in fact that's
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Speaker 5: probably what is coming next, So then.
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Speaker 2: They would actually have to do some work to figure
3:22
Speaker 2: that out.
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Speaker 5: Yes, that's right. So there is going to need to
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Speaker 5: be a census, if you will, within the federal government,
3:29
Speaker 5: kind of a cataloging of the programs. And boy, are
3:33
Speaker 5: there a lot of them out there, thousands of programs
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Speaker 5: and offices and grants and contracts and things of that
3:41
Speaker 5: nature that will need to be assessed, analyzed and then
3:45
Speaker 5: sort of reviewed for whether they're compliant or not compliant
3:50
Speaker 5: with the administration's objectives. So it's a herculean effort.
3:54
Speaker 2: Let's talk about the legal problems with the order that
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Speaker 2: the Democratic Attorney's General and most legal experts have identified.
4:03
Speaker 2: The legislative branch is supposed to be the branch that
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Speaker 2: decides on spending. Is that the basic problem.
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Speaker 5: That's one of the problems that's right. So under the constitution,
4:13
Speaker 5: the power of the purse that is the legislative branch's purview,
4:17
Speaker 5: not the executive branch. The executive branch is supposed to
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Speaker 5: execute the laws. Congress gets to dictate where funds are
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Speaker 5: appropriated and stand up certain programs. So that is one
4:28
Speaker 5: of the fundamental challenges that the administration will have if
4:32
Speaker 5: it's trying to defend this kind of behavior in court.
4:36
Speaker 5: Courts are going to be asking questions about separation of
4:39
Speaker 5: powers and authority. There's also you lawyers in MySpace this
4:44
Speaker 5: week had a dust off the Empowerment Control Act of
4:46
Speaker 5: nineteen seventy four and kind of go back to the
4:49
Speaker 5: Nixon era and look through the lens of whether the
4:54
Speaker 5: president has an authority issue when it comes to spending
4:58
Speaker 5: money that Griss has directed be spent, and certainly the
5:03
Speaker 5: legislative branch. Congress believes that when it says to spend money,
5:07
Speaker 5: the president has to do that, and so there are
5:10
Speaker 5: a whole host constitutional, statutory of potential hurdles that the
5:17
Speaker 5: administration is really going to have to get around to
5:20
Speaker 5: effectuate this policy. And those are not even taking into
5:24
Speaker 5: account the political consequences of some of these actions. And
5:28
Speaker 5: you saw that occur, you know, shortly after the Omb
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Speaker 5: memo was issued, when red state governors, Blue state governors,
5:38
Speaker 5: we're both howling about what this might mean for state budgets.
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Speaker 5: You know, large for profit clients of mine were very
5:45
Speaker 5: concerned about what this might mean for them. Higher education
5:50
Speaker 5: and university clients of mine were equally concerned. So you
5:54
Speaker 5: actually had a broad base of the American economy that
5:59
Speaker 5: really was concerned. So you have multiple challenges if you're
6:02
Speaker 5: the administration. One is a straight legal challenge and that
6:06
Speaker 5: is a fraud area and that will be played out
6:09
Speaker 5: in the courts principally. But the other is a policy
6:13
Speaker 5: and kind of political issue related to this. And I
6:16
Speaker 5: think they bid off more than they can chew here
6:19
Speaker 5: in rolling this out in the way they did, because
6:21
Speaker 5: they certainly galvanized opposition in an incredibly fast way. I'm
6:27
Speaker 5: not so sure that the honeymoon for this administration is over,
6:30
Speaker 5: but it might be and this might be the beginning
6:33
Speaker 5: of the end, at least of the honeymoon for the administration.
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Speaker 2: How much discretion does a president have not to spend
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Speaker 2: the money that's been appropriated by Congress? I mean, is
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Speaker 2: that a settled issue?
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Speaker 5: Yeah, so it depends the lawyer's favorite answer. Right, So,
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Speaker 5: certain programs direct the expenditure of funds. If a statute
6:55
Speaker 5: directs the expenditure of funds, the president's ability to not
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Speaker 5: spend those funds is significantly constrained. You know, there can
7:03
Speaker 5: be some timing issues and that kind of thing where
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Speaker 5: the president might have some flexibility, but if the president
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Speaker 5: is directed to spend, that's weak round for the president
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Speaker 5: to try to defend and say I don't have to
7:15
Speaker 5: spend now. In other types of programs where an appropriation
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Speaker 5: is made, say to an agency the Defense Department, to
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Speaker 5: further some general objective or innovation or something like that,
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Speaker 5: where the Congress has not been crystal clear about who
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Speaker 5: and what and why the expenditures will go out, the
7:38
Speaker 5: executive might claim to have more authority to have discretion
7:42
Speaker 5: to choose who gets those grant awards, for example, or
7:45
Speaker 5: contract awards. But there are still regulatory overlays that would
7:50
Speaker 5: apply even in that context as well. So while there
7:53
Speaker 5: is discretion at some level, it's cabined in many ways
7:58
Speaker 5: by statute of general applicability. So on the government contract side,
8:03
Speaker 5: there's a Competition and Contracting Act, where basically competition for
8:08
Speaker 5: government contract towards is the general rule. Another example is
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Speaker 5: the Administrative Procedures Act, where if the agency is going
8:14
Speaker 5: to do something and it falls within the purview of
8:17
Speaker 5: the APA, it has to do it in a certain way. Right.
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Speaker 5: So you have these general statutes that may confine presidential
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Speaker 5: executive discretion. You have the specific statutes that may develop
8:29
Speaker 5: or create a particular program that would have limitations on
8:33
Speaker 5: presidential discretion. And you have both of those things that
8:37
Speaker 5: will be I think used by certainly adversaries of the
8:41
Speaker 5: administration's attempts, those affected by the administration's attempts to change
8:47
Speaker 5: grants or cancel grants. They will be leveraged, and there
8:51
Speaker 5: will be arguments in court about whether, in a given
8:55
Speaker 5: context or the issuance of a memo, perhaps the president overstepped.
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Speaker 2: Other presidents have tried to get around this very issue before,
9:05
Speaker 2: have any of them been successful?
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Speaker 5: I don't know that any other president has done what
9:10
Speaker 5: the president tried to do this week, and the idea
9:14
Speaker 5: of sort of stopping everything, which is a bit overblown June,
9:19
Speaker 5: but not that much overblown that I can't think of
9:22
Speaker 5: a time when another president has tried.
9:24
Speaker 1: To do that.
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Speaker 5: I do think there's some interesting parallels, and you know,
9:29
Speaker 5: think about a little bit during the Biden administration. The
9:33
Speaker 5: Biden administration somewhat famously tried to use federal contracts as
9:40
Speaker 5: a vehicle for policy objectives. So, you know, very common
9:44
Speaker 5: example is the federal contractor vaccine mandate, where the Biden
9:48
Speaker 5: administration was trying to require that anyone who was a
9:51
Speaker 5: federal contractor had to have a vaccinated workforce. Another example
9:55
Speaker 5: that President Biden tried was the government contractor minimum wage. Now,
10:02
Speaker 5: both of those efforts were attacked in the courts by
10:06
Speaker 5: constituencies affected contractors states that basically said the president lacked
10:12
Speaker 5: the authority to take those steps. And there's a bit
10:16
Speaker 5: of a mixed bag, but by and large, the courts
10:19
Speaker 5: agreed with those challenges and said that President Biden didn't
10:23
Speaker 5: have the authority to use sort of contractual terms with
10:28
Speaker 5: governmental counterparties contractors, for example, to implement those policy objectives
10:33
Speaker 5: that existing law did not allow him to go that far,
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Speaker 5: and so I think you're going to see a lot
10:39
Speaker 5: of that authority that was used against President Biden's initiatives,
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Speaker 5: or at least some of his initiatives, sort to turn
10:46
Speaker 5: back around now as a basis to challenge this and
10:50
Speaker 5: future efforts by the Trump administration to sort of do
10:55
Speaker 5: the same thing, but just to effectuate different policies.
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Speaker 2: During his campaign, vowed to abolish the Empowerment Law altogether.
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Speaker 2: Would that eliminate his problems here or not?
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Speaker 5: It doesn't eliminate his problems. He's got two problems on that.
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Speaker 5: One is the Empowerment Statute itself, so he would have
11:13
Speaker 5: to get that repealed, which would require Congressional action more
11:18
Speaker 5: substantially changed. So that's a big if. But even if
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Speaker 5: that could happen June, you still have constitutional arguments that
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Speaker 5: fundamentally the power of the purse is a core legislative
11:30
Speaker 5: function and the idea that the legislature appropriates funds and
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Speaker 5: decides how much is spent in the United States, that's
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Speaker 5: pretty clear, I think from the text of the Constitution
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Speaker 5: that's what that's about. And if it's possible for a
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Speaker 5: president to accept the appropriation from Congress and just not
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Speaker 5: spend it at all. That seems to significantly erode the
11:54
Speaker 5: constitutional protection afforded by the spending claus.
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Speaker 2: I'm sure this issue is going to come up again.
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Speaker 2: Thanks so much, Alex. That's Alex Hontos of Dorsey and
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Speaker 2: Whitney coming up climate whiplash after Trump's executive orders. I'm
12:08
Speaker 2: June Grosso and this is Bloomberg.
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Speaker 6: We will be a rich nation again, and it is
12:15
Speaker 6: that liquid gold under our feet that will help to
12:19
Speaker 6: do it. With my actions today, we will end the
12:22
Speaker 6: Green New Deal and we will revoke the electric vehicle mandate.
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Speaker 2: In the dizzy number of executive orders President Donald Trump
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Speaker 2: signed on Day one, where a series of orders laying
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Speaker 2: the groundwork for a sweeping overhaul of US energy policy,
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Speaker 2: putting the weight of the federal government behind fossil fuel
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Speaker 2: production and pulling back from the fight against climate change.
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Speaker 2: Trump insists his drill baby, drill policy will bring down
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Speaker 2: prices and inflation.
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Speaker 7: It just works that way.
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Speaker 1: I mean, it just economically works that way.
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Speaker 7: When the oil comes down, it'll bring down prices. Then
12:59
Speaker 7: you won't have and then the interest rates.
13:02
Speaker 8: Will come down.
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Speaker 2: My guest is an expert in environmental law, Pat Parento,
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Speaker 2: a professor the Vermont Law and Graduate School. Let's start.
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Speaker 2: Trump declared a national energy emergency. What does that allow
13:16
Speaker 2: him to do?
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Speaker 1: Well? A declaration of a national emergency just generally does
13:23
Speaker 1: quote unlock certain provisions of federal law. But it's a
13:27
Speaker 1: statute by statute kind of thing. The declaration itself doesn't
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Speaker 1: do anything. It's a predicate for what's to come next.
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Speaker 1: So now you have to go through individual statutes. For example,
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Speaker 1: offshore oil and gas leasing that's governed by the Outer
13:45
Speaker 1: Continental Shelf Lands Act, if it's an online oil and
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Speaker 1: gas development, the drill, baby drill, the mantra that's governed
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Speaker 1: by a law known as the Federal Land Policy and
13:56
Speaker 1: Management Act, and so on. So the order themselves are
14:01
Speaker 1: a clarion call, right, and a policy announcement clearly, and
14:06
Speaker 1: a direction that the administration is going to go. But
14:10
Speaker 1: legally it's going to go statute by statute, and in fact,
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Speaker 1: project by project, whether you're talking about a gas pipeline
14:18
Speaker 1: or an oil pipeline or an LNG terminal or whatever,
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Speaker 1: it's going to go project by project, law by law.
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Speaker 2: He also ordered quarterly meetings of a committee of cabinet
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Speaker 2: level officials known as the gods Squad. What is the
14:34
Speaker 2: god Squad? They've only met a handful of times over
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Speaker 2: the past four.
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Speaker 1: Decades, right, And I've been the only lawyer who has
14:41
Speaker 1: appeared in all four of the God Squad proceeding. So
14:46
Speaker 1: you're talking to me.
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Speaker 2: I don't know if that's good or bad. I'm trying
14:48
Speaker 2: to throw out.
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Speaker 1: I don't know. I can tell you this. The Endangered
14:52
Speaker 1: Species Committee is not a standing committee. Okay, it doesn't
14:57
Speaker 1: meet quarterly or regularly at all. In in fact, it
15:00
Speaker 1: can only meet as the Endangered Species Committee when there
15:05
Speaker 1: is an application in front of it that meets really
15:09
Speaker 1: specific statutory criteria that I had a hand in drafting,
15:15
Speaker 1: And the most basic one is there can be no
15:18
Speaker 1: exemption process unless there's what's called an irreconcilable conflict between
15:25
Speaker 1: a specific project. Maybe it's a water project, a highway project,
15:30
Speaker 1: timber sale projects. But there has to be a really
15:33
Speaker 1: specific project federally authorized or undertaken, and it then has
15:38
Speaker 1: to conflict with the commands of the Endangered Species fact,
15:42
Speaker 1: meaning the activity in question has to jeopardize That's the
15:46
Speaker 1: term the continued survival of a listed species endangered or threatened.
15:51
Speaker 1: So we don't have anything like that. As you point out,
15:53
Speaker 1: there hasn't been one since the spotted owl god Squad
15:57
Speaker 1: proceeding where I was the owl's lawyer, if you will,
16:00
Speaker 1: because I was the special counsel appointed to the Fish
16:04
Speaker 1: and Wildlife Service to present the case for preserving the
16:09
Speaker 1: owl's habitat to the god Squad. So there hasn't been
16:11
Speaker 1: one since nineteen ninety two, is my point. And there
16:14
Speaker 1: is nothing on the horizon that would give rise to
16:17
Speaker 1: convening the god Squad.
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Speaker 2: One promise he made repeatedly during the campaign was drill,
16:24
Speaker 2: baby drill, And in his inaugural address he said, we
16:28
Speaker 2: will be a rich nation again, and it is that
16:31
Speaker 2: liquid gold under our feet that will help.
16:34
Speaker 4: Right.
16:34
Speaker 1: So here's the fact. That's a fact free statement, right.
16:38
Speaker 1: So the fact is the United States is the largest
16:42
Speaker 1: producer and exporter of oil and gas on the planet,
16:47
Speaker 1: and oil and gas development, contrary to a lot of
16:51
Speaker 1: climate activists, tremendously exponentially expanded under Biden in the last
16:56
Speaker 1: four years. So A, there is no energy emergency. B
17:01
Speaker 1: As to drill, baby drill, here's the data, twenty five
17:05
Speaker 1: million acres of federal lands are under lease already not
17:09
Speaker 1: being developed, twenty five million acres of public lands. Secondly,
17:13
Speaker 1: there are nine thousand drilling permits that have been issued.
17:18
Speaker 1: They're not being developed either. Why not because there's a
17:22
Speaker 1: glut of oiling gas on the market. Why are gasoline
17:25
Speaker 1: prices at the pump the lowest they've been in seventy years?
17:28
Speaker 1: You're that right, seventy years. Not since the nineteen fifties
17:32
Speaker 1: have we seen prices this low at the pump. The
17:35
Speaker 1: reason is there is a glut of oiling gas on
17:38
Speaker 1: the market right now. That could change, of course, but
17:41
Speaker 1: as of right now, there's no basis to declare an
17:45
Speaker 1: energy emergency. There certainly is a climate emergency, or, if
17:49
Speaker 1: you want to look at it another way, the real
17:51
Speaker 1: energy emergency is the failure to convert and transition away
17:56
Speaker 1: from fossil fuels and to the cleaner sources of energy
18:00
Speaker 1: solar wind, which of course Trump hates because it interferes
18:03
Speaker 1: with his golf course in Scotland. But beyond that, where
18:07
Speaker 1: is most of the renewable energy being developed right now?
18:10
Speaker 1: In Republican states Texas, Oklahoma, Iowa. So the real emergency
18:16
Speaker 1: is we need to get on with the business of
18:18
Speaker 1: transitioning to cleaner, more efficient, and actually more profitable sources
18:24
Speaker 1: of energy.
18:25
Speaker 2: So, as you mentioned, he's been vocal about his dislike
18:28
Speaker 2: of wind for years. What is he trying to do
18:32
Speaker 2: with these executive orders and alternative energy like solar and wind.
18:37
Speaker 1: He's put a pause, as he put it, on offshore
18:41
Speaker 1: wind projects that are still in the permit process. There
18:44
Speaker 1: are nine of them that have already received their permits
18:47
Speaker 1: and they aren't caught by the executive order, but there
18:49
Speaker 1: are seven others that are not finished with permitting, and
18:53
Speaker 1: so he's put a pause on them. And he's threatened
18:55
Speaker 1: to withdraw major portions of offshore wind areas, particularly in
19:00
Speaker 1: what he calls the Gulf of America, which the rest
19:03
Speaker 1: of the world still calls the Gulf of Mexico. And
19:06
Speaker 1: that's a problem or an issue that's going to have
19:08
Speaker 1: to go to the courts, because once again, the president
19:11
Speaker 1: does have authority to withdraw areas of the ocean from development,
19:15
Speaker 1: including I would acknowledge wind development. But again there's a
19:18
Speaker 1: practice by which you do that, including doing an environmental
19:22
Speaker 1: assessment and changing the leasing programs that already have been
19:26
Speaker 1: approved and so forth. So as to further development offshore,
19:32
Speaker 1: that'll be a subject of litigation as well. Here's the
19:35
Speaker 1: downside to all this is it is going to discourage investment.
19:39
Speaker 1: There's been a lot of interest from European Union nations
19:43
Speaker 1: like Norway and Denmark, which is pioneered a lot of
19:46
Speaker 1: offshore win and they want to invest hundreds of millions
19:49
Speaker 1: of dollars in offshore win in the United States waters.
19:52
Speaker 1: But of course this particular period of time would probably
19:56
Speaker 1: discourage that kind of investment. So even though the order
20:00
Speaker 1: may lack some legal foundation, they probably will have the
20:04
Speaker 1: desired effect of discouraging at least rapid development of wind
20:10
Speaker 1: and in some cases probably stolar as well.
20:13
Speaker 2: City Group analysts have said that Trump's policies won't stop
20:16
Speaker 2: the transition to green energy. So in four years, how
20:20
Speaker 2: much damage do you think he can do to the
20:23
Speaker 2: advancement of clean energy.
20:25
Speaker 1: These orders and decisions and changes in rules and rollbacks
20:29
Speaker 1: of environmental rules. I think he's going to get tripped
20:32
Speaker 1: up repeatedly in court on those actions. But I do
20:36
Speaker 1: think we're losing an awful lot of momentum and opportunity.
20:39
Speaker 1: I do think there's going to be a discouraging effect
20:42
Speaker 1: on the investment market for the next four years. That
20:45
Speaker 1: may take longer than that to rebound, And certainly as
20:48
Speaker 1: he drives more and more people away from federal service,
20:51
Speaker 1: which he's intent on doing, that's going to have an
20:54
Speaker 1: institutional impact on our ability to recover from these four
20:58
Speaker 1: years and get back into the aim of transitioning to
21:02
Speaker 1: renewable energy and cleaner energy sources, including electric vehicles, all
21:06
Speaker 1: of which the marketplace is pushing. So I would agree
21:10
Speaker 1: with the comment that he can't stop the transition that's underway,
21:13
Speaker 1: he will certainly flow it down.
21:16
Speaker 2: This order comes as no surprise. Trump is rescinding environmental
21:21
Speaker 2: justice initiatives, and there were nearly eighty such Biden initiatives.
21:26
Speaker 2: What impact will that have?
21:27
Speaker 1: This is terrible. This is another part of what we're
21:30
Speaker 1: seeing out of this administration is outright cruelty to people.
21:34
Speaker 1: There's no question but what black, brown, and low income
21:37
Speaker 1: communities across the country have for decades been subject to
21:41
Speaker 1: disproportionate health and environmental impacts. That's where all the really
21:46
Speaker 1: hazardous facilities are cited, whether it's dumping grounds for toxic
21:51
Speaker 1: chemicals and toxic waste or whether it's oil refineries, Cancer
21:55
Speaker 1: Alley and Louisiana, for example. These are communities that have
21:58
Speaker 1: suffered from disproportion that environmental impacts are decades. And finally
22:02
Speaker 1: we had an administration who took seriously the ethical and
22:06
Speaker 1: the moral obligation to stop that and to bring attention
22:11
Speaker 1: to bear on places where people are getting elevated levels
22:15
Speaker 1: of cancer, dying prematurely, having miscarriages, and all kinds of
22:20
Speaker 1: really serious health and well being impacts. And the truth
22:24
Speaker 1: is that we have not devoted enough time through environmental laws,
22:28
Speaker 1: through permitting and licensing, to avoid burdening these communities with
22:33
Speaker 1: ever more life threatening health threatening activities and bringing enforcement
22:38
Speaker 1: actions through EPA and the Department of Justice to target
22:42
Speaker 1: those areas where people are dying and getting sick, to
22:46
Speaker 1: clean it up and to protect people. We've also seen
22:49
Speaker 1: last week that Trump has ordered all five of the
22:53
Speaker 1: section chiefs in the Department of Justice that are in
22:56
Speaker 1: charge of the environmental enforcement sections of Justice, He's reassigned
23:01
Speaker 1: them to Immigration. They're environmental lawyers. They're the lawyers that
23:05
Speaker 1: are leading the effort in the United States to keep
23:08
Speaker 1: communities safe, to bring polluters to justice, and he's decimating
23:13
Speaker 1: the capability of these agencies to do that. That's the
23:16
Speaker 1: real harm that we're seeing.
23:18
Speaker 2: His administration has stopped all pending environmental litigation, But are
23:22
Speaker 2: they going to need environmental lawyers to be fighting all
23:26
Speaker 2: the lawsuits that are going to come down because of
23:28
Speaker 2: these executive orders.
23:30
Speaker 1: Well, that's the irony of what's going on here. By
23:33
Speaker 1: taking out senior career professionals in the federal agencies, it's
23:38
Speaker 1: actually going to make what Trump wants to do even
23:41
Speaker 1: harder to do. It'll mean that instead of carefully following
23:45
Speaker 1: the law, crossing the t's dotting the eyes and all
23:48
Speaker 1: of that, they're going to keep making the kinds of
23:50
Speaker 1: mistakes they did in Trump's first administration. In their hurry
23:54
Speaker 1: to do this in the demand or you know, to
23:57
Speaker 1: be loyal to the president, not loyal to the rule
23:59
Speaker 1: of law, they're going to make all kinds of mistakes.
24:02
Speaker 1: But here's the problem. It takes time to chase down
24:05
Speaker 1: all these things. That's another strategy here is, you know,
24:08
Speaker 1: flood the zone, throw so many things out there that
24:11
Speaker 1: people will be dispersed and can't keep up with everything
24:15
Speaker 1: he's doing, can't get all these cases into court. And
24:18
Speaker 1: get them heard, get them reversed. That's what they're counting on.
24:21
Speaker 1: I think is just do so much that some stuff
24:25
Speaker 1: is just going to go through because there isn't enough
24:27
Speaker 1: opposition on the other side, and there isn't enough time
24:30
Speaker 1: to get them all turned around or overturned. So eventually
24:34
Speaker 1: I think you're going to see that happening. It'll be
24:37
Speaker 1: later in the four years, but you know, apparently the
24:40
Speaker 1: strategy is stop us if you can.
24:43
Speaker 2: It's always a pleasure to talk to the spotted Owl's lawyer.
24:46
Speaker 2: Thanks Pat. That's Professor Pat Parento of the Vermont Law
24:50
Speaker 2: and Graduate School. Coming up next, The tiny fish caught
24:54
Speaker 2: in the culture Wars. I'm June Grosso. When you're listening
24:57
Speaker 2: to Bloomberg, they.
24:58
Speaker 7: Talk about the Delta smell, which is a fish that's
25:01
Speaker 7: is big, but it is it is really not doesn't
25:04
Speaker 7: have to be protected because it's in other areas. It's
25:06
Speaker 7: in numerous other areas, so it doesn't have to be protected.
25:10
Speaker 7: The people of California have to be protected.
25:13
Speaker 2: The Delta smelt is a three inch silvery blue fish
25:18
Speaker 2: that has somehow become a scapegoat or perhaps better said,
25:22
Speaker 2: escapefish for legal protections. To save endangered species. Well before
25:28
Speaker 2: you became president, Donald Trump has been blaming California's wildfire
25:33
Speaker 2: problems on the tiny fish, claiming that needed water is
25:37
Speaker 2: being diverted because of the Delta Smelt.
25:40
Speaker 9: The water is cut off upstate, up in the north,
25:43
Speaker 9: you know that, And the water in order to protect
25:46
Speaker 9: a certain little tiny fish called the smelt, they send
25:49
Speaker 9: millions and millions of gallons of water out to the
25:52
Speaker 9: Pacific Ocean Way up north.
25:54
Speaker 2: But Governor Gavin Newsom says TROMP has the facts all wrong,
25:58
Speaker 2: and the state reservoirs are full.
26:01
Speaker 8: I don't know what he's referring to when he talks
26:03
Speaker 8: about the Delta Smelt and reservoirs. The reservoirs are completely full.
26:06
Speaker 8: Of the state reservoirs here in southern California. That missing disinformation.
26:10
Speaker 8: I don't think advantages or aids any.
26:12
Speaker 2: Of us despite those facts. Trump signed in an executive
26:16
Speaker 2: order on day one targeting the Delta Smelt entitled Putting
26:20
Speaker 2: People over Fish Stopping Radical Environmentalism to provide water to
26:25
Speaker 2: Southern California. Joining me is Caleb Scoville, a sociology professor
26:30
Speaker 2: at Tuff's University who's writing a book on the politics
26:34
Speaker 2: of the Delta smelt. So Caleb tell us a little
26:38
Speaker 2: about this little fish.
26:40
Speaker 10: The Delta smelt is a small, translucent fish. You know,
26:45
Speaker 10: it's not two three inches long. It lives in the
26:48
Speaker 10: Sacramento San Joaquin Delta, which is where California's major river
26:53
Speaker 10: systems converge just east of the San Francisco Bay where
26:56
Speaker 10: before the rivers kind of conversion flow out to the bay.
27:00
Speaker 10: Fish that only lives in that area. It's California's largest estuary,
27:04
Speaker 10: and it is also the center of California's water distribution system.
27:08
Speaker 10: So it's where giant pumps were installed in the mid
27:12
Speaker 10: twentieth century to irrigate farmland in the Central Valley San
27:17
Speaker 10: Joaquin Valley, and also provides water to major cities in
27:21
Speaker 10: central and southern California, as well as the Silicon Valley.
27:24
Speaker 10: So the fish is small, but it's a native fish
27:27
Speaker 10: that used to be one of the most abundant species
27:29
Speaker 10: in that ecosystem, and it has declined in recent decades
27:33
Speaker 10: because of the human transformations of its ecosystem.
27:37
Speaker 2: When did it start to become controversial.
27:40
Speaker 10: That's a complicated question. You know, the species became considered
27:43
Speaker 10: for listing under the Endangered Species Act in the late
27:47
Speaker 10: nineteen eighties and early nineteen nineties, and at the time,
27:50
Speaker 10: you know, it was somewhat controversial because regulators and stakeholders,
27:55
Speaker 10: you know, agricultural interest cities, understood that it may complicate
27:59
Speaker 10: the operation California's water infrastructure. So it was controversial even
28:03
Speaker 10: before it was listed under the Endangered Species Act. But
28:06
Speaker 10: this controversy was mostly within the world of California water policy.
28:10
Speaker 10: So in the early nineteen nineties, there were you know,
28:13
Speaker 10: concerns about what the effects of protecting this species would be.
28:16
Speaker 10: When it was listed under the Endangered Species Act, it
28:18
Speaker 10: continued to be controversial, but the listing of this species
28:21
Speaker 10: and also conflict over water quality standards between the federal
28:25
Speaker 10: government and the state government resulted actually in a lot
28:28
Speaker 10: of cooperation to avoid future lawsuits, and so the controversy
28:31
Speaker 10: sort of died down a little bit, and it really
28:34
Speaker 10: wasn't until the mid two thousands that the controversy picked
28:38
Speaker 10: up again. And this was initially precipitated by a legal
28:42
Speaker 10: decision by a judge in California, actually a Republican appointed
28:46
Speaker 10: judge that the regulations protecting this species from those pumps
28:50
Speaker 10: that send water to farms and cities in California. The
28:53
Speaker 10: way that they were running the pump was in violation
28:55
Speaker 10: of these Dangerous Species Acts, and so this resulted in
28:58
Speaker 10: a brief but dramatic shut off of the pump and
29:01
Speaker 10: then in order that new regulations had to be put
29:03
Speaker 10: in place seven two eight that this unfolded.
29:06
Speaker 2: Before that was anything in particular done when it was
29:11
Speaker 2: put on the Endangered Species list to help preserve it.
29:15
Speaker 10: Yeah, So when a species is listed under the Endangered
29:18
Speaker 10: Species Act, so any federal agency that has a project
29:22
Speaker 10: that's going to affect the species and could potentially cause
29:25
Speaker 10: harm to the species has to come up with basically
29:29
Speaker 10: a plan to avoid jeopardizing and the continued existence of
29:33
Speaker 10: that species. So there were regulations that essentially regulated the
29:36
Speaker 10: amount of water that could be pumped at particular times,
29:39
Speaker 10: and then there were a series of other measures, you know,
29:41
Speaker 10: including various ways of managing water that were tried to
29:46
Speaker 10: save the species from extinction. It's complicated. I mean, there
29:49
Speaker 10: were some habitat restoration projects. There was something called the
29:52
Speaker 10: Environmental Water Account, which is essentially like setting aside a
29:55
Speaker 10: certain amount of water that could be used to pump
29:57
Speaker 10: into its habitat at certain periods of time. All of
30:00
Speaker 10: us is basically a way of managing water to try
30:02
Speaker 10: to balance the need of ecosystems and the human interest
30:05
Speaker 10: in extracting water from its habitat. Now, I should mention
30:08
Speaker 10: that the ADULTA smelt is just one species among many
30:11
Speaker 10: that are affected by California's water distribution system. Salmon that
30:15
Speaker 10: our native to that area are also listed on the
30:17
Speaker 10: Dangered Species Act, as our sturgeon, and there's a whole
30:20
Speaker 10: complex ecosystem. So the ADULTA smelt, it's one species, but
30:23
Speaker 10: it's also very sensitive species, so it's often treated as
30:26
Speaker 10: a kind of indicator species for the overall quality and
30:29
Speaker 10: help of the ecosystem. And these initial efforts, it was
30:32
Speaker 10: called the calf Ed program, were intended to sort of
30:35
Speaker 10: balance the needs of the environment and people's interest in water,
30:39
Speaker 10: and it also as a way to provide stability to
30:41
Speaker 10: avoid future lawsuits that might shut down the system because
30:44
Speaker 10: people were really interested in stability.
30:46
Speaker 2: When the judge issued this order, how did it change
30:49
Speaker 2: what California was doing with its water systems or did it?
30:54
Speaker 10: It did require the agencies to rewrite the way that
30:57
Speaker 10: they were regulating the pumps and managing water in dance.
31:02
Speaker 10: I don't think it's fair to say that it completely
31:05
Speaker 10: reorganized the way water was used in the States.
31:07
Speaker 1: It's a very.
31:08
Speaker 10: Complex regulatory process that involves using the best available science
31:12
Speaker 10: to come up with a plan to avoid jeopardizing the
31:15
Speaker 10: continued existence of this species. So there was an initial
31:18
Speaker 10: shutdown of water for just a very short amount of
31:20
Speaker 10: time days, and then there was a new regulatory regime
31:23
Speaker 10: that was put in place, and that was in place
31:25
Speaker 10: for many years. Overall, protections of the Delta Smelt only
31:28
Speaker 10: account for a pretty small, pretty marginal amount of water
31:31
Speaker 10: that could have otherwise been used by people.
31:33
Speaker 1: But it was the dramatic.
31:34
Speaker 10: Shut off that actually created a lot of headlines. And
31:37
Speaker 10: so really the controversy even then was fairly muted, and
31:41
Speaker 10: what made it a national controversy was actually not anything
31:45
Speaker 10: regulatory at all or anything legal. It was when Sean
31:48
Speaker 10: Hannity had an entire episode of his show on the
31:51
Speaker 10: Delta Smelt sort of blaming drought and Great Recession era
31:56
Speaker 10: hardships on the protections of the Delta Smelt. So that
31:59
Speaker 10: was in two thousand, not actually more than a year
32:01
Speaker 10: after the decision that resulted in the brief shut off
32:05
Speaker 10: of the pumps. So Hannity is actually the person who
32:07
Speaker 10: brought the Delta smelt into the national public sphere.
32:11
Speaker 2: And why do you think this caught on as a controversy.
32:14
Speaker 10: First of all, was the context. Barack Obama had just
32:17
Speaker 10: become president of the United States. There was also a
32:20
Speaker 10: recession which was causing a lot of employment right after
32:23
Speaker 10: the financial crisis of two thousand and eight. California also
32:27
Speaker 10: at that time, and it continues to be with Trump
32:30
Speaker 10: just kind of an avatar for everything that is supposedly
32:33
Speaker 10: wrong with liberalism and environmentalism in the United States for
32:37
Speaker 10: a certain subset of conservative commentators. So those aspects sort
32:42
Speaker 10: of align. And then the delta smelt, being a very
32:45
Speaker 10: small and obscure species that is uncharismatic, you know, it's
32:49
Speaker 10: two inches long, it has a funny name, it became
32:51
Speaker 10: a vessel for the implicit message that liberal environmentalists in
32:56
Speaker 10: cities care more about a small, uncharismatic fish that they
33:01
Speaker 10: care about hardworking, honest people like you. So there's a
33:04
Speaker 10: kind of implicit message and sometimes very explicit message that
33:07
Speaker 10: environmentalists simply don't care about their fellow Americans. And you
33:11
Speaker 10: know that could also go for liberals, or could go
33:13
Speaker 10: for Obama, or could go for in this case Skeavin Newsom.
33:17
Speaker 10: And you know, because of the delta smelt is a
33:19
Speaker 10: species that doesn't have obvious use to people. Isn't large
33:24
Speaker 10: or beautiful or charismatic. Right, It's not the bald eagle,
33:26
Speaker 10: it's not even the salmon. It becomes a very useful
33:29
Speaker 10: symbol for everything that's supposed to be wrong with environmentalism
33:32
Speaker 10: in America.
33:33
Speaker 2: You wrote that the frequent usage of descriptors like tiny
33:36
Speaker 2: or little suggests that the delta smelt small size and
33:40
Speaker 2: lack of charisma made it the perfect icon to drum
33:43
Speaker 2: up right wing resentment, allowing you to become a divisive
33:47
Speaker 2: cultural object. Yeah, I mean it's it's a culture wars.
33:51
Speaker 10: Fish now, Yeah, exactly. And so there's a very complex
33:55
Speaker 10: and interesting history of California water that the delta smelt
33:59
Speaker 10: plays a role. And the delta smelt is regulated by
34:02
Speaker 10: the Native Species Act. It has accounted for some amount
34:06
Speaker 10: of water being set aside and not used by people
34:09
Speaker 10: over the years.
34:10
Speaker 1: That's true.
34:10
Speaker 10: However, this is a much smaller proportion than many critics
34:14
Speaker 10: would imagine. And also those regulations that protect the Delta
34:17
Speaker 10: smelt also protect the quality of the water for people
34:20
Speaker 10: to use. Because of where the pumps are, There's only
34:22
Speaker 10: so much you can extract at a particular time, especially,
34:25
Speaker 10: you know, depending on hydrologic conditions, there's only so much
34:27
Speaker 10: you can extract without pulling in seawater right becoming too
34:31
Speaker 10: salty to even use to irrigate crops or drink. So
34:35
Speaker 10: the idea, you know, that you could just stop these
34:37
Speaker 10: regulations and take as much wonder as you want is
34:39
Speaker 10: not true at all. So the culture war thing, you know,
34:42
Speaker 10: in two thousand and nine, I see that as kind
34:44
Speaker 10: of the moment where the delta smelt escaped the world
34:46
Speaker 10: of California water politics. And I've done a systematic media
34:49
Speaker 10: analysis to show that there's no relationship between the hydrologic
34:53
Speaker 10: effects of protecting this species and when the controversy flares up.
34:57
Speaker 10: So really, the Delta smelt as culture war or symbol
35:00
Speaker 10: or culture war object has very little to do with
35:03
Speaker 10: the world of California water.
35:05
Speaker 2: Trump has blamed protections for the Delta smelt for the
35:10
Speaker 2: devastating California wildfires, recently saying it's responsible for the gaps
35:16
Speaker 2: in water access.
35:17
Speaker 10: Yes, he had, and let's be clear, that's completely false.
35:21
Speaker 10: There's zero truth to it.
35:22
Speaker 4: Right.
35:22
Speaker 10: You can see why that connection would pop into his
35:25
Speaker 10: mind because there are regulations of the species that do
35:28
Speaker 10: regulate how much water can be extracted from the sacrament
35:31
Speaker 10: of San jua Quing Delta to California's water project, which
35:35
Speaker 10: are the infrastructure system, So you can understand the connection.
35:38
Speaker 10: But it's very easy to refute what he said by
35:41
Speaker 10: looking at the reservoir levels in California and in Southern
35:45
Speaker 10: California in particular, most of which are at or above
35:48
Speaker 10: average for this time of year. There's plenty of water,
35:50
Speaker 10: so it's not a supply issue. If there was an
35:52
Speaker 10: issue with how much water we could take out of
35:55
Speaker 10: the delta because of endangered Species X protection, it would
35:58
Speaker 10: be reflected in the reservoir life. There were issues at
36:01
Speaker 10: the local level for the system that was designed to
36:04
Speaker 10: handle maybe a house fire, to be able to handle
36:06
Speaker 10: a city fire, right and I'm not qualified to say
36:09
Speaker 10: what should have been done there, But the invocation of
36:12
Speaker 10: the delta smelt is a complete misdirection and it does
36:15
Speaker 10: nothing to help the situation, and in fact, it distracts
36:18
Speaker 10: from the real tragedy and the real problems that we
36:22
Speaker 10: face in a climate change world, and also just in
36:25
Speaker 10: cities that face hazards that we need to manage.
36:27
Speaker 2: So what's the status of the Delta smelt right now?
36:31
Speaker 10: Yeah, the Delta smelt remains listed on the endangered species list,
36:34
Speaker 10: as experts working in the systems a natural scientists working
36:37
Speaker 10: in the system would say, it's arguably functionally extinct. So
36:41
Speaker 10: that doesn't mean that there are no Delta smelt left
36:43
Speaker 10: in the system, but there are very few. It is
36:45
Speaker 10: not what it used to be. There's now actually many
36:48
Speaker 10: more Delta smeuths living in a captive population sort of
36:51
Speaker 10: trying to maintain the species and do some experimental releases
36:55
Speaker 10: to try to potentially propagate it permanently in the delta
36:59
Speaker 10: than there are in the wild. So it's actually kind
37:01
Speaker 10: of a sad example of what we've done to ecosystems.
37:05
Speaker 10: But it's not as much of a factor in California
37:07
Speaker 10: water policy as it might seem given how much we're
37:10
Speaker 10: talking about it, And there are other species protections like salmon.
37:13
Speaker 10: And you'll notice that the folks who will vilify the
37:16
Speaker 10: Delta smelt and regulations for the adulta Belth rarely mentioned
37:19
Speaker 10: Sam because they know that driving salmon into extation is
37:22
Speaker 10: not a very politically popular project. So I think that
37:25
Speaker 10: says something about why the Delta Smelt is such a
37:28
Speaker 10: useful strategic object for people who want to play kind
37:32
Speaker 10: of divisive culture war games against environmentalists.
37:35
Speaker 2: It's really fascinating how this tiny fish got caught in
37:39
Speaker 2: the culture wars. Thanks so much, Caleb. That's tough, University
37:43
Speaker 2: sociology Professor Caleb Schofield. And that's it for this edition
37:47
Speaker 2: of The Bloomberg Law Show. Remember you can always get
37:50
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