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Setbacks for Environment at SCOTUS · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
0:08
Speaker 2: The Supreme Court has not been what you'd call a
0:11
Speaker 2: friend of the environment with its trend of weakening federal protections,
0:16
Speaker 2: and this term was no different, with the Court delivering
0:19
Speaker 2: several setbacks to environmental protections. Joining me is environmental law
0:24
Speaker 2: expert Pat Parento, a professor at the Vermont Law and
0:27
Speaker 2: Graduate School. Pat this last term, how much damage did
0:32
Speaker 2: the Supreme Court do overall to environmental protections? I mean,
0:37
Speaker 2: let's say scale a one to ten.
0:39
Speaker 1: Oh, on a scale of one to ten, I would
0:41
Speaker 1: say it was a seven. There wasn't any really blockbuster,
0:45
Speaker 1: one single blockbuster decision. There were a series of decisions
0:50
Speaker 1: that went against the environment, you could say, certainly went
0:53
Speaker 1: against the parties that were advocating for environmental protection. On
0:58
Speaker 1: the other hand, you know, on climate the Supreme Court
1:02
Speaker 1: actually did the right thing in denying review in the
1:05
Speaker 1: Honolulu case and in two other cases that the Red
1:11
Speaker 1: state attorneys general had brought trying to get the Supreme
1:14
Speaker 1: Court to take what's called original jurisdiction. Over All of
1:19
Speaker 1: these forty plus climate cases filed by the states and
1:22
Speaker 1: cities and so forth. So, you know, I mean it's
1:25
Speaker 1: a mixed bag. It's generally bad for the environment, but
1:28
Speaker 1: there were a few, i guess, small scale victories.
1:32
Speaker 3: So perhaps the biggest environmental decision of the term was
1:36
Speaker 3: one that involved a proposed Utah railway that's going to
1:41
Speaker 3: transport crude oil.
1:43
Speaker 1: Right in the Uinta Basin of Utah. And this is
1:48
Speaker 1: heavy crude. It's a form of crude that has not
1:51
Speaker 1: been actually extracted. And this rail line, approved by the
1:56
Speaker 1: Surface Transportation Board, was about an eighty plus mile rail
2:01
Speaker 1: line totally within Utah, but it was designed to transport
2:05
Speaker 1: this oil east and all the way to the Gulf
2:07
Speaker 1: Coast to be refined and then either exported or burned
2:10
Speaker 1: in the United States. And you know, this kind of
2:14
Speaker 1: heavy crewd is some of the worst climate damaging fuels
2:18
Speaker 1: you could have. And the question was, you know, when
2:21
Speaker 1: the Service Transportation Board is considering the impacts under the
2:25
Speaker 1: National Environmental Policy Actor, they have to look at upstream
2:29
Speaker 1: impacts from the extraction the drilling, and do they also
2:32
Speaker 1: have to look at downstream impacts of burning the oil
2:36
Speaker 1: in the refineries, in the air pollution impacts that that creates.
2:40
Speaker 1: The Service Transportation Board under Biden did look at those things,
2:43
Speaker 1: the upstream downstream effects, but they did so in a
2:46
Speaker 1: way that sort of acknowledged we don't as the Surface
2:49
Speaker 1: Transportation Board, have any control over the extraction the drilling.
2:53
Speaker 1: We don't regulate that, and we don't regulate the refineries.
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Speaker 1: So they did a sort of back of the envelope
3:00
Speaker 1: and of calculation of what the impacts would be. The
3:02
Speaker 1: DC Circuit said, that's not good enough. Under NEVA, you
3:05
Speaker 1: have to take a harder look at these indirect effects.
3:09
Speaker 1: That has been the law generally UNDERNATHA for you know, forever,
3:14
Speaker 1: since NEPA was enacted in nineteen seventy. So there was
3:17
Speaker 1: no big surprise, I think among those of us who
3:19
Speaker 1: follow these cases that the Supreme Court was going to
3:22
Speaker 1: overturn the DC Circuit. But the way it did it,
3:25
Speaker 1: the Kavanaugh opinion, is what's troubling. It basically said, for
3:30
Speaker 1: indirect effects that are remote in space and time and
3:34
Speaker 1: over which the agency does not have regulatory authority, those
3:40
Speaker 1: kinds of impacts don't have to be considered, and the
3:43
Speaker 1: Court should defer to agencies making those kinds of factual
3:48
Speaker 1: determination and also legal determinations on whether they have authority.
3:52
Speaker 1: And then in addition, Kavanaugh said, and oh, by the way,
3:56
Speaker 1: since NEPA is just quote, a procedural statute, which is
3:59
Speaker 1: true an important one. But it's certainly true that it's procedural.
4:03
Speaker 1: It doesn't require a particular decision to be made, but
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Speaker 1: it requires that you disclose what the foreseeable impacts of
4:10
Speaker 1: your decision is. But because it's just a procedural statute,
4:13
Speaker 1: of course, shouldn't be too quick to either enjoin an
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Speaker 1: agency from proceeding even where there have been violations of NEPA,
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Speaker 1: and should not immediately vacate underlying decisions that the agency
4:26
Speaker 1: has made, like issuing a license or a permit, or
4:29
Speaker 1: making a grant for a project. And so you know,
4:32
Speaker 1: that was a gratuitous slap at the law and a
4:35
Speaker 1: signal to the lower courts you don't have to take
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Speaker 1: NEPA all that seriously. Violations of NEPA. You can look
4:41
Speaker 1: at it and decide, well, it's just not that serious.
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Speaker 1: Nothing is really going to be changed when we disclose
4:47
Speaker 1: these impacts, So let it go. That was very troubling,
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Speaker 1: and so.
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Speaker 2: It was eight to zero because Justice course recused himself.
4:58
Speaker 2: I mean, why did the three liberals con occur in.
5:00
Speaker 1: That they concurred in the judgment, but not in Kavanaugh's
5:04
Speaker 1: weeping opinion, both on you know, agencies just don't ever
5:09
Speaker 1: have to consider these indirect effects that are quote remote
5:12
Speaker 1: in time and space. The three liberal justices basically said,
5:18
Speaker 1: you don't have to go that far. You know. The
5:19
Speaker 1: only question is did the dec Circuit court go too far?
5:23
Speaker 1: And the answer to that is yeah, they did. They
5:25
Speaker 1: were demanding too much in this particular case where the
5:28
Speaker 1: agency had done some consideration and they were just demanding
5:32
Speaker 1: more and that was a bridge too far, and certainly
5:35
Speaker 1: not agreeing with Kavanaugh's comment about, you know, don't take
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Speaker 1: NEPA violation seriously. So that's why the three liberals concurred
5:43
Speaker 1: in the judgment, but not in the rationale that Kavanaugh advanced.
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Speaker 2: So does this make clear what the lower courts have
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Speaker 2: to do?
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Speaker 1: No? No, I mean, this is yet another example of
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Speaker 1: the Supreme Court thinking it's clarifying matters. It's not. And
6:00
Speaker 1: you know, it's going to be up to individual judges
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Speaker 1: across the country. There are over seven hundred federal judges
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Speaker 1: and more on the way, more Trump appointees on the way,
6:10
Speaker 1: and you know, Kavanaugh was clear and saying, it's up
6:13
Speaker 1: to the courts that are reviewing these actions. You should
6:17
Speaker 1: defer to an agency's factual determinations that these impacts are
6:22
Speaker 1: remote in time and space. But you don't necessarily have
6:26
Speaker 1: to agree with the agency if there's reason to believe
6:30
Speaker 1: the agency, you know, either has authority to do more
6:34
Speaker 1: about these impacts or that these impacts are really not
6:37
Speaker 1: that remote in time and space. You can imagine, you know,
6:41
Speaker 1: all the different kinds of federal decisions that impact the environment, right.
6:46
Speaker 1: I mean, it's like there are hundreds of agencies of
6:49
Speaker 1: the federal government that have authority to approve or finance
6:54
Speaker 1: or whatever projects that impact the environment. So no, I
6:57
Speaker 1: mean a test like this where you should defer to
7:01
Speaker 1: the agency where it makes sense to defer to the
7:04
Speaker 1: agency that doesn't clarify very much. I think we can
7:07
Speaker 1: say for sure that conservative judges will now have more authority,
7:15
Speaker 1: if you will, and more inclination to approve and agencies,
7:20
Speaker 1: particularly right now under the Trump administration, approve agency determinations
7:25
Speaker 1: that they really can't consider these impacts they're too speculative.
7:30
Speaker 1: So in that sense, it is a signal to the
7:33
Speaker 1: courts to defer to the agencies when they say they
7:36
Speaker 1: can't figure out how to you know, consider these impacts
7:40
Speaker 1: or they don't know what they could do about them
7:42
Speaker 1: if they do consider them. But I still think there's
7:45
Speaker 1: going to be litigation. I know this because the public
7:48
Speaker 1: interest groups aren't just going to throw in the towel.
7:50
Speaker 1: They're going to keep testing, you know, the authority of
7:54
Speaker 1: agencies to disregard impacts that, again, they're foreseeable impacts. The
7:59
Speaker 1: court in the Utah case didn't say these weren't foreseeable.
8:03
Speaker 1: They just said, well, they're just too remote and they're
8:06
Speaker 1: impacts that the agency really can't do much about. So
8:10
Speaker 1: there's going to be arguments about that going forward.
8:12
Speaker 2: Let'ster the EPA. The Court has restricted the power of
8:16
Speaker 2: the EPA in several rulings over the last few years,
8:21
Speaker 2: and it lost again at the Court in a case
8:23
Speaker 2: where San Francisco was suing the agency.
8:27
Speaker 1: Right So, San Francisco sued EPA for requiring San Francisco
8:35
Speaker 1: to comply with water quality standards, which are set by
8:38
Speaker 1: the states but approved by EPA, and they are designed
8:42
Speaker 1: to protect beneficial uses of water fishing, swimming, drinking, boating,
8:48
Speaker 1: et cetera. And you know, San Francisco has combined to
8:53
Speaker 1: or overflows that discharged raw sewage into the Pacific Ocean
8:58
Speaker 1: and they affect beach. I mean, this is eecal coliform,
9:02
Speaker 1: bacteria and viruses. I mean, this is really bad stuff.
9:05
Speaker 1: It's not just unpleasant, right, it threatens public health. And
9:10
Speaker 1: so you know, IPA said, look, San Francisco, you've been
9:13
Speaker 1: working on this problem for years, but you're not getting
9:16
Speaker 1: where you need to go. You need to do more.
9:19
Speaker 1: You either need to separate your system, which is very
9:22
Speaker 1: expensive in the billions of dollars, and separate the storm
9:25
Speaker 1: water from the sewage system and then deal with the
9:28
Speaker 1: treatment problems of each one separately. You either need to
9:31
Speaker 1: do that or you need to come up with some
9:34
Speaker 1: other kinds of mechanisms that, you know, don't expose people
9:38
Speaker 1: that are swimming in the Pacific Ocean to getting disease.
9:41
Speaker 1: But they didn't say specifically, here isn't a blueprint for
9:45
Speaker 1: what you have to do. Alito wrote the opinion for
9:47
Speaker 1: the Supreme Court. He said, that's not good enough. You
9:50
Speaker 1: have to tell permittees like San Francisco and others industry, agriculture,
9:56
Speaker 1: wide variety. You know, of entities that discharge pollutants into
10:00
Speaker 1: the waters of the United States rivers and lakes and
10:03
Speaker 1: so forth. You can't just tell them, well, you have
10:05
Speaker 1: to comply with these so called end results water quality standards.
10:10
Speaker 1: And you know, in dissent, Justice Barrett Hooray for her
10:15
Speaker 1: joining with her sisters, the liberal sisters on the Supreme Court, said,
10:20
Speaker 1: you know, not only is that not what the Clean
10:23
Speaker 1: Water Act said, it's pretty explicit. It says other limitations
10:27
Speaker 1: required to protect water quality. Well, that's exactly what EBA
10:31
Speaker 1: did here, right. You use technology where you have technology,
10:36
Speaker 1: and you use numerical standards for individual pollutants when you
10:40
Speaker 1: can set those. But when you have something like a
10:43
Speaker 1: toxic soup coming out of a city's discharge, you know,
10:47
Speaker 1: those kinds of mechanisms don't work so well. So you're
10:51
Speaker 1: going to have to come up with something more creative
10:53
Speaker 1: than that to protect people and protect the water quality.
10:57
Speaker 1: And in addition, she said, it's not necessarily a great
11:01
Speaker 1: idea to have EPA dictating to cities and states what
11:04
Speaker 1: they have to do to comply with water quality standards.
11:08
Speaker 1: Why doesn't it make sense to say you have to
11:10
Speaker 1: do more to comply with these standards, you're violating them,
11:15
Speaker 1: but to give the states and cities some flexibility in
11:18
Speaker 1: how they would do it. You know, keep the pressure
11:21
Speaker 1: on the cities to comply with the Clean Water Act,
11:24
Speaker 1: but don't necessarily dictate precisely what's needed to do that.
11:29
Speaker 1: So that was the San Francisco case. It's interesting that
11:32
Speaker 1: the Supreme Court also denied review in another case called
11:37
Speaker 1: the Puget Sound sound Keeper case, and.
11:40
Speaker 2: The issue there was similar to the issue in the
11:42
Speaker 2: San Francisco.
11:43
Speaker 1: Case, and that issue was whether or not a state
11:47
Speaker 1: could impose a condition in a wastewater permit that was
11:52
Speaker 1: beyond the scope of the Clean Water Act, and the
11:55
Speaker 1: Ninth Circuit ruled that, well, that's an interesting question. But
11:59
Speaker 1: the point is that in this case, the entity that's
12:03
Speaker 1: required to comply with the law didn't challenge the permit
12:07
Speaker 1: condition when they could have, and so therefore the court
12:11
Speaker 1: applied the doctrine of collateral estoppel and said, you're a
12:15
Speaker 1: stop from complaining about something you could have complained about earlier,
12:20
Speaker 1: and now you can't raise it for the first time
12:22
Speaker 1: in an enforcement action. And the point here is the
12:26
Speaker 1: Supreme Court denied review in the Puget sound Keeper case.
12:30
Speaker 1: I would have bet they would have taken that case
12:33
Speaker 1: because of the exceeding the scope of the Clean Water
12:36
Speaker 1: Act issue, but they didn't. So that raises the question,
12:40
Speaker 1: in the back to the San Francisco case, what about
12:43
Speaker 1: all these permits that have these end result conditions in them?
12:48
Speaker 1: Because most, if not all NPDS permits do have such
12:53
Speaker 1: a condition. Right, that's required by EPA's rules that you
12:57
Speaker 1: have a condition in state issued NPA es permits that
13:01
Speaker 1: have that kind of condition.
13:02
Speaker 3: Right.
13:03
Speaker 1: So, now, with what the Ninth Circuit has said in
13:06
Speaker 1: the Puget Sound case and what the Supreme Court has
13:10
Speaker 1: refused to review, I predict we're going to see people
13:14
Speaker 1: trying to enforce these end result conditions and arguing that
13:20
Speaker 1: your opportunity to challenge those conditions was when the permit
13:24
Speaker 1: was issued. And so you're going to have a collateralist
13:27
Speaker 1: stopple argument, which means more chaos. Even though again Alito
13:34
Speaker 1: thinks by saying you can't impose end result conditions in
13:38
Speaker 1: a permit, that resolves the question, No, it doesn't. It
13:42
Speaker 1: now raises the question of whether these permit conditions that
13:46
Speaker 1: could have been challenged, but we are still in effect.
13:49
Speaker 1: So there you go. More chaos.
13:51
Speaker 2: Well, Alito thought that the Dobbs decision would end the
13:54
Speaker 2: abortion questions, So there you go. Coming up next, how
13:58
Speaker 2: the Supreme Court's decision limiting judges from issuing nationwide injunctions
14:03
Speaker 2: affects environmental litigation. This is Bloomberg. I've been talking to
14:09
Speaker 2: Professor Pat Parento of the Vermont Lawn Graduate School about
14:12
Speaker 2: several cases this term where the Supreme Court delivered setbacks
14:16
Speaker 2: to the environment. There was a case involving standing to
14:21
Speaker 2: sue where the justices, in a seven to two ruling,
14:25
Speaker 2: sided with fuel producers that were suing over California's standards
14:29
Speaker 2: for vehicle emissions and electric cars. First, tell us what
14:34
Speaker 2: are California's standards Right now?
14:37
Speaker 1: Two things have happened. One to Congress. The House and
14:40
Speaker 1: in the Senate used the Congressional Review Act to overrule
14:46
Speaker 1: EPA's approval of California's waiver under the Clean Air Act,
14:50
Speaker 1: which would give California the opportunity to set more stringent
14:54
Speaker 1: tailpipe emission standards. And thirteen other states, including Vermont and
14:58
Speaker 1: New York I, have adopted the cal California standards. But
15:01
Speaker 1: now that Congress has overruled the waiver, those standards are
15:06
Speaker 1: not in effect. California has sued. Attorney General Bonta has sued.
15:10
Speaker 1: The problem is that the Congressional Review Act says the
15:13
Speaker 1: courts don't have authority to review decisions of Congress to
15:17
Speaker 1: overturn these rules. That's a complicated legal question. You know,
15:22
Speaker 1: the waiver is really not a rule. It's a waiver.
15:24
Speaker 1: It's a fact based determination. It's not a rule like
15:28
Speaker 1: you normally see under the Clean Air Actor or other statutes,
15:32
Speaker 1: you know, which are uniform and nationwide and general policy,
15:36
Speaker 1: et cetera. You know, the waiver is specific to California.
15:39
Speaker 1: So the point is, you know, Bonta would ordinarily have
15:43
Speaker 1: a pretty good argument that what Congress did was illegal.
15:46
Speaker 1: But Congress did it, and Congress also said you can't
15:49
Speaker 1: review what we did. So you know, my prediction is
15:53
Speaker 1: Bonta is probably going to lose that case. In addition,
15:56
Speaker 1: the big Ugly Bill that I'm going to call it
15:59
Speaker 1: also contains a provision saying you can't penalize car companies
16:05
Speaker 1: for violating what are called the cafe standards. This is
16:08
Speaker 1: under a different statute, the fuel Economy standards under the
16:11
Speaker 1: Energy Policy and Conservation Act, which was passed during the
16:15
Speaker 1: era of oil embargo, back in Jimmy Carter's time, and
16:19
Speaker 1: you know, NITSA under the Department of Transportation has set
16:22
Speaker 1: these very stringent fuel economy standards and the companies are
16:26
Speaker 1: clearly in violation of those standards, and the big ugly
16:30
Speaker 1: bill has just said, yeah, but you can't penalize them
16:32
Speaker 1: for that. The bill didn't repeal the standards. The companies
16:36
Speaker 1: are still in violation of the standards, but the bill
16:39
Speaker 1: says you can't penalize them for that. So, you know,
16:43
Speaker 1: in two whacks at the largest source of greenhouse gas
16:48
Speaker 1: emissions and many other pollutants, you know, volatile organic compounds
16:52
Speaker 1: and so forth, you know, pollutants that are causing again
16:55
Speaker 1: serious public health problems across the country. But the Congress
16:59
Speaker 1: has in twos taken out two of the federal regulatory
17:04
Speaker 1: provisions that are designed to deal with the mission standards
17:08
Speaker 1: and fuel economy standards, which would improve the performance of
17:12
Speaker 1: the transportation system, not just greenhouse gases, but all these
17:17
Speaker 1: other pollutants as well. So we talked about a bad
17:20
Speaker 1: year for the environment in the Supreme Court. Oh my god,
17:23
Speaker 1: it was even worse in the Congress of the United States,
17:26
Speaker 1: and now.
17:26
Speaker 2: Tell us about the Sevenitude decision written by Justice Brett Kavanaugh.
17:32
Speaker 1: Oh, the decision by Kavanov It grants standing to entities
17:36
Speaker 1: that are not regulated by the California Provision, not directly regulated.
17:42
Speaker 1: It wasn't brought by the car company. It was brought
17:45
Speaker 1: by other entities, energy companies, biofuels companies, companies that want
17:50
Speaker 1: to be able to sell you know, fuels and are
17:54
Speaker 1: angry about the shift to electric vehicles and hybrid vehicles
17:58
Speaker 1: because it's going to impact their sales. They argue with
18:01
Speaker 1: some justification, right, but you know that's not the kind
18:05
Speaker 1: of injury that the Supreme Court would ever countenance. If
18:09
Speaker 1: an environmental organization was making that argument, you'd be thrown
18:14
Speaker 1: out of court on your ear. Trust me, I've been
18:16
Speaker 1: thrown out on my ear for making those kinds of
18:20
Speaker 1: arguments where you're not the direct target of the regulation.
18:24
Speaker 1: But when it comes to industry and corporate interests, you know,
18:28
Speaker 1: the Supreme Court is it's olay. You know, it's your
18:31
Speaker 1: waves into court by virtue of the fact, Well, you're
18:34
Speaker 1: a business interest, you're a serious interest. And even if
18:38
Speaker 1: we might think that some of your claims are exaggerated,
18:42
Speaker 1: and certainly it's hard to tell exactly how and when
18:45
Speaker 1: you're going to be affected by the waiver of the
18:48
Speaker 1: California standard. We're gonna let you into court anyway. So
18:52
Speaker 1: it's just, you know, a case of unfair treatment of
18:55
Speaker 1: environmental groups on the one hand and generous treatment of
18:58
Speaker 1: industry groups on the other.
19:00
Speaker 2: Pat let's talk about the Supreme Court's recent decision curbing
19:04
Speaker 2: federal Court's ability to block policy enforcement through nationwide injunctions
19:10
Speaker 2: and how that affects environmental litigation. What did the court
19:14
Speaker 2: leave open there?
19:16
Speaker 1: Well, you know, the case came to the Supreme Court
19:19
Speaker 1: on a preliminary injunction and you know, sort of by
19:23
Speaker 1: definition that means it was a preliminary decision of the court.
19:28
Speaker 1: So one question is going to be, does the ban,
19:32
Speaker 1: if you will, on universal injunctions or nationwide injunctions as
19:38
Speaker 1: the Court describes it, Does that same rule apply at
19:43
Speaker 1: the permanent injunction stage of the case where the Court
19:47
Speaker 1: has determined on the merits that whatever action you're challenging
19:52
Speaker 1: is illegal. It may have even been void of initio,
19:56
Speaker 1: as we say, right, it was never legal to begin with,
19:59
Speaker 1: So what a cour also be precluded from issuing an
20:03
Speaker 1: injunction that would have nationwide effect at the final stage
20:08
Speaker 1: of the case, as they say, where the court has
20:10
Speaker 1: determined there's there's a violation of law, and now are
20:12
Speaker 1: you really serious that it would be a violation only
20:15
Speaker 1: in the state where the case was brought and not
20:17
Speaker 1: anywhere else. It may be that that is the rule
20:20
Speaker 1: going forward. That's what I think. You know, people that
20:23
Speaker 1: are commenting in the legal academy and practitioners that you
20:27
Speaker 1: know regularly practice environmental law are saying, so maybe that
20:31
Speaker 1: is the result of the case, that district court judges
20:34
Speaker 1: are never going to be able to issue nationwide injunctions.
20:38
Speaker 1: But if you read the decision and it's it's fractured,
20:41
Speaker 1: there's a whole bunch of different opinions in the case.
20:44
Speaker 1: So trying to triangulate where do you have five votes
20:47
Speaker 1: and on what that's still an open question. And certainly
20:51
Speaker 1: as Kavanaugh throughout the option of bringing class actions. You know,
20:57
Speaker 1: so that then introduces the question, well, you know, for
21:00
Speaker 1: birthright citizenship, what's the class it would be all the
21:05
Speaker 1: kids in offspring, I guess you'd say in the country
21:08
Speaker 1: that are the children of undocumented migrants, but they were
21:14
Speaker 1: born in this country, and the fourteenth Amendment says if
21:16
Speaker 1: you're born in this country, you're a citizen. Right. And Alido,
21:20
Speaker 1: in his concurring opinion, saw this as he would expect
21:23
Speaker 1: he would. He saw this as a loophole. He said,
21:26
Speaker 1: if you can declare a national class, then you can
21:29
Speaker 1: just get around the ruling that you can't issue a
21:32
Speaker 1: nationwide injunction. So there you go. Are class actions going
21:37
Speaker 1: to be the way that plaintiff lawyers are going to
21:40
Speaker 1: try to get around the decision in the Casa as
21:44
Speaker 1: it's called case And the answer is yeah, they're going
21:46
Speaker 1: to try to do that. And once again, here we
21:49
Speaker 1: go again. We don't have a clear answer from this
21:53
Speaker 1: decision about when will universal injunctions be allowed and when
21:58
Speaker 1: will they clearly never be allowed. We just don't know.
22:02
Speaker 2: Our class actions are realistic alternative for plaintiffs in environmental litigation.
22:10
Speaker 1: I doubt it, you know, because number one, you know,
22:14
Speaker 1: trying to define the class and the Supreme Court has
22:16
Speaker 1: actually made it very difficult to certify classes. I mean,
22:20
Speaker 1: that's the whole separate process that the courts have to
22:23
Speaker 1: go through to figure out, you know, is this really
22:25
Speaker 1: a case where you can define a class and if so,
22:29
Speaker 1: what is that class. And for environmental violations, you know,
22:33
Speaker 1: if you think about Endangered Species Act and neep of violations,
22:37
Speaker 1: even violations of the Clean Air Act the Clean Water Act,
22:40
Speaker 1: it's pretty difficult to say any particular violation is going
22:44
Speaker 1: to be national in scope. You know, the birthright citizenship
22:48
Speaker 1: is the exception to that. Probably, and maybe some of
22:51
Speaker 1: the other things that the Trump administration is doing with
22:54
Speaker 1: both deportation and maybe even some of the defunding moves
22:58
Speaker 1: that they're making that my have national implications. You know,
23:02
Speaker 1: there are probably some types of violations where a national
23:06
Speaker 1: class could be defined, but probably environment it's going to
23:10
Speaker 1: be difficult if you are able to define a class
23:14
Speaker 1: that's broader than just perhaps within the bounds of a
23:18
Speaker 1: state or even a judicial district that's issuing a decision.
23:23
Speaker 1: Once you do that, once you certify the class. Maybe
23:26
Speaker 1: I've been involved in class actions, maybe you have as well.
23:29
Speaker 1: I'm sure lots of people have. You get a notice, right, congratulations,
23:34
Speaker 1: you've just been named in class acts. But now you
23:37
Speaker 1: have to opt in or opt out of the class.
23:39
Speaker 1: If you opt into the class, you've become a party
23:42
Speaker 1: to litigation you didn't even know about, right, somebody brought
23:45
Speaker 1: a class action lawsuit and all of a sudden, you've
23:47
Speaker 1: been named as a member of that class. You have
23:50
Speaker 1: the option of opting in or not. If you opt in,
23:54
Speaker 1: guess what you can be deposed. Now that doesn't usually
23:57
Speaker 1: happen in these class action lawsuits, like abuse of credit
24:01
Speaker 1: cards or something like that. But you have to be
24:04
Speaker 1: given notice. That costs money. So the bottom line is
24:08
Speaker 1: class actions are expensive, they're complicated. There's all kinds of
24:13
Speaker 1: rules that go with them, all of which means that
24:16
Speaker 1: relying on class actions to bring the kinds of environmental
24:20
Speaker 1: cases that have been brought in the past, and the
24:23
Speaker 1: kinds of cases where environmental groups have succeeded in getting
24:27
Speaker 1: nationwide injunctions, and by the way, opponents of rules and
24:31
Speaker 1: environmental protection have also gained nationwide injunctions. The specific legal
24:36
Speaker 1: foundation is in business to do that very thing in
24:40
Speaker 1: challenging rules under the Clean Water Acts. Think the Sacket case, right,
24:44
Speaker 1: and others like that. So you know, this question of
24:47
Speaker 1: nationwide injunctions as usual cuts both ways. You know, both
24:51
Speaker 1: ends of the political spectrum, the conservative to the liberals
24:55
Speaker 1: try to use that mechanism to get at violations of
25:00
Speaker 1: law that don't require bringing a lawsuit in every single
25:03
Speaker 1: state in the country, and don't require having to go
25:06
Speaker 1: through all the appellate process, through the course of appeals
25:09
Speaker 1: ultimately to the Supreme Court before you get a final resolution.
25:14
Speaker 1: That's what the dissent in the nationwide injunction case was
25:18
Speaker 1: pointing out, and Justice Jackson was ferocious, frankly in her descent.
25:23
Speaker 1: You know, she was saying, you're giving free reign to
25:26
Speaker 1: people to violate federal law, including Trump, and to say
25:30
Speaker 1: that if you do win in one venue, that's the
25:34
Speaker 1: only place you're going to win, and to win more
25:37
Speaker 1: than that, you're going to have to go through this
25:39
Speaker 1: tortuous appeal process. So you know, once again there's arguments
25:44
Speaker 1: pro and con on nationwide injunctions. I would certainly agree
25:48
Speaker 1: with that, and I would certainly agree they can be
25:50
Speaker 1: abused by both conservative judges and liberal judges. Okay, so
25:55
Speaker 1: finding ways to constrain abuses of issuing nationwide and US
26:00
Speaker 1: junctions is a fair thing to do. But just creating
26:03
Speaker 1: a per se rule that isn't really per se, as
26:07
Speaker 1: we've discussed, that's not going to resolve it, I.
26:09
Speaker 2: Don't think, and the lower courts are struggling with it already.
26:13
Speaker 2: Thanks so much, Pat. That's Professor Pat Parento of the
26:17
Speaker 2: Vermont Law and Graduate School. And that's it for this
26:21
Speaker 2: edition of The Bloomberg Law Show. Remember you can always
26:24
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26:27
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