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A Tiny Fish Caught in the Culture Wars · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 1: The Trump administration is asking the Supreme Court to pause
0:12
Speaker 1: four cases so that the federal agencies involved can reassess
0:16
Speaker 1: the government's position in the cases, signaling the new administration
0:20
Speaker 1: will change the positions taken by the Biden administration. The
0:25
Speaker 1: cases involved a Biden regulation granting loan forgiveness for defrauded
0:30
Speaker 1: student borrowers, an EPA waiver to California, and two other
0:34
Speaker 1: cases involving Biden EPA regulations joining me? Is constitutional law
0:40
Speaker 1: expert Harold Krant, a professor at the Chicago Kent College
0:43
Speaker 1: of Law, How is it fairly recent that a new
0:46
Speaker 1: administration comes in and changes the federal government's position before
0:52
Speaker 1: the Supreme Court?
0:53
Speaker 2: It was a long standing practice where the new administration
0:57
Speaker 2: would defend the legal positions of the prior administration. That
1:00
Speaker 2: has been jettisoned by both Democrats and Republicans in more
1:04
Speaker 2: recent years. And I think it makes some sense. Why
1:07
Speaker 2: waste the court's time to go over something when the
1:09
Speaker 2: administration may change position and moved out the whole controversy here?
1:13
Speaker 3: The administration is asking for a pause.
1:16
Speaker 1: Are they really asking for a pause or since they're
1:19
Speaker 1: asking to stop all written briefing deadlines, does that put
1:23
Speaker 1: the cases on indefinite hold?
1:25
Speaker 2: It puts the cases on indefinite hold. They're asking the
1:28
Speaker 2: court for that leeway in order for the agencies involved
1:32
Speaker 2: in this case, mostly the EPA, to reevaluate and change position.
1:37
Speaker 2: And if the EPA does change the position in three
1:39
Speaker 2: of the four cases, that would moot out the current controversies.
1:43
Speaker 2: At their court agreed to accept they.
1:46
Speaker 1: Want to review Biden's regulation granting loan forgiveness for defrauded
1:50
Speaker 1: student borrowers.
1:52
Speaker 2: So in this case, I think it's quite a sound policy,
1:55
Speaker 2: but it's one that the administration can change. The administration
1:59
Speaker 2: has set up certain kinds of regulations that say, if
2:03
Speaker 2: the student can show that he or she was defrauded
2:06
Speaker 2: by the educational institution, then that creates a borrower defense
2:10
Speaker 2: and the student need not pay back student loans. Obviously,
2:14
Speaker 2: this is controversial as controversial because President Trump was a
2:16
Speaker 2: defendant himself in for the Trump University for some of
2:20
Speaker 2: these prior cases. But it's a relatively straightforward Department of
2:24
Speaker 2: Education policy. Nonetheless, the new Department of Education may want
2:29
Speaker 2: to reconsider and to change the regulations and that therefore
2:34
Speaker 2: would again moved out the case and the court need
2:38
Speaker 2: not waste its resources in deciding whether the Biden administration
2:42
Speaker 2: had the authority to create this boro defense, which the
2:46
Speaker 2: Circuit questioned. But certainly this has caused some concern for
2:51
Speaker 2: students who are deciding whether they have to pay back
2:54
Speaker 2: the loans from education that they may not have actually received.
2:57
Speaker 1: Another case centers on the Environmental Protection Agency's decision to
3:03
Speaker 1: grant California permission to set stronger climate.
3:07
Speaker 3: Rules for cars.
3:08
Speaker 1: So this is that sort of infamous California waiver.
3:12
Speaker 2: Yeah, and the Trump administration actually limited that waiver during
3:15
Speaker 2: the Glasgow round, so it's not surprising that the administration
3:19
Speaker 2: will take another look at allowing California to impose these
3:22
Speaker 2: relatively stringent requirements on one bill manufacturers. Ironically, if you will,
3:27
Speaker 2: the case actually has to do with standing question about
3:31
Speaker 2: whether there is kind of addressability for a claim by
3:35
Speaker 2: industry analysis is that this rule will change the kind
3:39
Speaker 2: of composition of cars in terms of electric, hybrid or
3:44
Speaker 2: gas powered that will be marketed across the country. So
3:48
Speaker 2: the case doesn't really relate to this exemption for California
3:52
Speaker 2: at all. It has to do with whether fuel producers
3:54
Speaker 2: can challenge it. But nonetheless, what the Trump administration said was,
3:59
Speaker 2: we're thinking of limiting the waiver the California So the
4:02
Speaker 2: entire challenge, including the adjustibility issue before the court will
4:06
Speaker 2: be mooted out. And just to add, I mean, it
4:08
Speaker 2: may not be technically mooted out, but there's really no
4:11
Speaker 2: pressing need for the Court to continue its analysis. It's
4:14
Speaker 2: probably alive as an Article three matter, but prudentially there's
4:17
Speaker 2: no reason for the court to hear the case.
4:19
Speaker 1: I mean, why even say that they're just considering it.
4:22
Speaker 1: On his first day back in office, Trump said in
4:25
Speaker 1: an executive order that he was seeking the repeal of
4:28
Speaker 1: the new waiver granted to California in December. So it
4:32
Speaker 1: seems obvious where they are. Why are they pretending they're just.
4:35
Speaker 2: Going to look at it, because it hasn't happened yet.
4:37
Speaker 2: You know, once we get some senior administrators at EPA
4:40
Speaker 2: with some authority, I'm sure that the exemption will be,
4:44
Speaker 2: if not eliminated, at least scaled back for California. But
4:47
Speaker 2: that hasn't happened yet. And to allow at least the
4:50
Speaker 2: new officials to get into office, and to make a
4:53
Speaker 2: binding order. It was a sort of a cautious, respectful
4:57
Speaker 2: approach for the administration to take.
4:59
Speaker 1: The Trump administration also ask the Supreme Court to pause
5:02
Speaker 1: two other environmental cases. Tell us about them.
5:06
Speaker 2: Those cases concern in one case, whether there was a
5:09
Speaker 2: denial of an exemption for field companies to not comply
5:13
Speaker 2: with certain kinds of regulations for clean air. And in
5:17
Speaker 2: the other case, it has to do with the good
5:20
Speaker 2: neighbor policy that the EPA has established and a challenge
5:23
Speaker 2: to that. So in these cases it has to do
5:26
Speaker 2: with actually a venue where these cases can be heard.
5:30
Speaker 2: And the administration said, you know, look, as a technical matter,
5:34
Speaker 2: venue issue is alive. It hasn't been resolved. But if
5:37
Speaker 2: we are going to change our EPA policy so radically,
5:41
Speaker 2: then the underlying lawsuits may not have any kind of
5:45
Speaker 2: both left to them. So you may want to save
5:47
Speaker 2: your resources, Supreme Court and not hear the case.
5:51
Speaker 1: In three of the cases at the court, filing show
5:54
Speaker 1: that at least one party is objecting to halting the schedule.
5:59
Speaker 3: How does that lay in?
6:00
Speaker 1: Is the court likely to grant what the administration wants?
6:04
Speaker 2: I think the court is likely to, but in the
6:06
Speaker 2: past it hasn't always done that. There was someone infamous
6:09
Speaker 2: case at the start of the Biden administration dealing with
6:12
Speaker 2: again an EPA matter, where the Court said, yes, it's
6:18
Speaker 2: unlikely that there's a continuing, active controversy, but it may
6:21
Speaker 2: be resumed so it's not dead from an Article three contest,
6:26
Speaker 2: and so it actually hurt the case. So the Court
6:29
Speaker 2: has the capacity to hear these cases, despite what the
6:33
Speaker 2: Trump administration attorneys have requested. I think they're unlikely to
6:38
Speaker 2: because there is not such a need to clarify the
6:42
Speaker 2: underlying rules at this time or to even decide the
6:46
Speaker 2: venue issue that the Court is likely then to be
6:48
Speaker 2: respectful to the Trump position and get rid of these cases.
6:53
Speaker 4: They have the power to.
6:54
Speaker 2: So we'll have to wait to see, and if.
6:55
Speaker 1: The Supreme Court wants the case is to continue, the
6:59
Speaker 1: justices could point a lawyer to argue the Biden administration's position.
7:04
Speaker 4: Yeah.
7:04
Speaker 2: Look, the Court has done that in the past. You've
7:06
Speaker 2: appointed Niki Kuriei to really represent the interests of the
7:10
Speaker 2: former administration because the current administrations are no longer defending
7:14
Speaker 2: the policy, and the Court has done that for generations
7:18
Speaker 2: in a number of cases where they've done it more
7:20
Speaker 2: frequently in recent years, so it could happen. And so,
7:23
Speaker 2: for instance, give you an example, maybe this question of venue,
7:27
Speaker 2: about whether you can sue only in the DC circuit
7:29
Speaker 2: under a statute is complicating individuals' lives in terms of
7:34
Speaker 2: where to sue. It happened before, it may raise its
7:37
Speaker 2: head again in the future, and so the court says, look,
7:39
Speaker 2: we have a case, let's resolve it now. And that
7:41
Speaker 2: would be a good reason why the court might then
7:44
Speaker 2: appoint someone to represent the Biden administration position on the
7:48
Speaker 2: venue question.
7:49
Speaker 1: On Friday, the Justice Department actually reversed Biden administration position
7:54
Speaker 1: in one case over Louisiana's congressional map.
7:58
Speaker 3: But that won't have any effect on.
7:59
Speaker 1: The case itself, right, because it's not the Biden administration
8:03
Speaker 1: that's suing there. No.
8:05
Speaker 2: In that case, it really had to do with an
8:06
Speaker 2: unusual situation where the Republican Louisiana administration was in favor
8:12
Speaker 2: of the new map and yet it was challenged and
8:15
Speaker 2: held to be in violation of the Voting Rights Act.
8:19
Speaker 2: So it was a very unusual political alignment where the
8:22
Speaker 2: political leadership but Republicans, thought that this was a safer
8:25
Speaker 2: way to comply with the Voting Rights Amendment. But obviously
8:29
Speaker 2: we'll have to see what happens.
8:31
Speaker 1: These requests involve cases that haven't been argued yet. There
8:35
Speaker 1: are some argued cases that seem to shout out that
8:39
Speaker 1: the Trump administration would want to change positions, and one
8:43
Speaker 1: is the case over Tennessee's ban on gender affirming medical
8:48
Speaker 1: care for transgender miners.
8:50
Speaker 2: Yeah, the Scrimmtic case is the one that comes to
8:52
Speaker 2: everybody's mind, and whether the court decided to take the
8:56
Speaker 2: petition that was filed by the Biden administration as opposed
8:58
Speaker 2: to private parties is one for the ages. But it
9:01
Speaker 2: looks pretty clear that the Trump administration may well decide
9:05
Speaker 2: to go slow on the gender firming care and not
9:09
Speaker 2: have the Supreme Court hear the challenge right now. But
9:12
Speaker 2: on the other hand, maybe they think they have the
9:14
Speaker 2: votes and they've pledged it they only want to have
9:17
Speaker 2: two sexes on passports, and maybe they decided they don't
9:20
Speaker 2: want to have gender firming care and they may want
9:23
Speaker 2: the Court to continue to hear the case. But that's
9:25
Speaker 2: a great example of where a change of administration may
9:28
Speaker 2: or may not result in the Court jettis in the case.
9:31
Speaker 1: You know, if you go by the oral arguments, it
9:33
Speaker 1: seemed like Tennessee had the upper hand in the ural arguments.
9:37
Speaker 1: So maybe the Trump administration might want to just take
9:40
Speaker 1: a chance on that.
9:42
Speaker 4: They might.
9:42
Speaker 2: They might, and I think that they are in pretty
9:45
Speaker 2: good shape, not legally but with the Supreme Court, and
9:48
Speaker 2: so they may make a calculation that this is actually
9:51
Speaker 2: furthering their mission to try to get the court to
9:55
Speaker 2: come down and say that it's within the States rights
9:57
Speaker 2: to limit gender of firming.
9:59
Speaker 1: Care also arguments over these ghost guns, which are largely
10:04
Speaker 1: untraceable firearms, and that involves the federal regulation.
10:09
Speaker 3: It's been argued, but that might be.
10:10
Speaker 1: A case where the Trump administration changes position.
10:14
Speaker 2: I think that's going to be a close case because
10:15
Speaker 2: the Biden administration had such a overwhelming case on satutory
10:21
Speaker 2: construction that the regulation could be salvaged. And it's just
10:25
Speaker 2: not clear to me that even the Trump administration is
10:28
Speaker 2: in favor of ghost guns. But as you point out,
10:31
Speaker 2: it's within the purview of the new administration to resin
10:35
Speaker 2: the regulation. And so if they do resin the regulation,
10:39
Speaker 2: then people can manufacture and sell ghost guns in their
10:42
Speaker 2: basements without any kind of identification and pass by all
10:46
Speaker 2: sorts of regulatory hurdles. That's an extreme position, but it's
10:50
Speaker 2: one that the Trump administration might take.
10:52
Speaker 3: And Biden did this too.
10:54
Speaker 1: He asked the Justice Department to freeze the battle over
10:58
Speaker 1: the border wall.
11:00
Speaker 2: The Bide administration tried to get with respect to some
11:02
Speaker 2: environmental cases as well. And I think as respectful of
11:05
Speaker 2: the Court to tell the Court that this may no
11:08
Speaker 2: longer be a true controversy and that the Court is
11:12
Speaker 2: better off using its limited resources in another area. So
11:15
Speaker 2: I think both administrations active respectfully and by asking the
11:19
Speaker 2: Court to pause. And we'll just have to see what
11:22
Speaker 2: the positions the comp administration ultimately will take.
11:25
Speaker 1: Yes, especially when the new Solicitor General is appointed. Thanks
11:30
Speaker 1: so much, Hal. That's Professor Harold Krent of the Chicago
11:33
Speaker 1: Kent College of Law, coming up next on the Bloomberg
11:36
Speaker 1: Law Show. It's a tiny endangered fish that's become part
11:40
Speaker 1: of the culture wars. In fact, President Trump has even
11:44
Speaker 1: blamed it for California's wildfires, but Governor Gavin Newsom begs
11:49
Speaker 1: to differ. I'm June Grosso and you're listening to Bloomberg.
11:57
Speaker 3: This is Bloomberg Law with June Grosso from Bloomberg Radio.
12:03
Speaker 1: The Delta smelt is a three in silvery bluefish that
12:07
Speaker 1: has somehow become a scapegoat or perhaps escapefish for legal
12:12
Speaker 1: protections to save endangered species and even stranger. President Tromp
12:17
Speaker 1: blames the tiny fish for the devastating California wildfires, saying
12:22
Speaker 1: protections for the Delta smelt led to gaps in water access.
12:27
Speaker 5: They talk about the Delta smelt, which is a fish
12:29
Speaker 5: that's is big, but it is it is really not
12:32
Speaker 5: doesn't have to be protected because it's in other areas.
12:35
Speaker 5: It's in numerous other areas, so it doesn't have to
12:38
Speaker 5: be protected. The people of California have to be protected.
12:42
Speaker 1: Trump even signed an executive order on day one targeting
12:46
Speaker 1: the Delta smelt entitled Putting People over Fish Stopping Radical
12:52
Speaker 1: Environmentalism to provide water to southern California. But Governor Gavin
12:57
Speaker 1: Newsom says that Tromp has the fact all wrong and
13:01
Speaker 1: that state reservoirs in southern California are completely full.
13:06
Speaker 3: And somehow connecting the Delta smelt to this fire, which
13:09
Speaker 3: is inexcusable because it's inaccurate, also incomprehensible to anyone that
13:16
Speaker 3: understands water policy.
13:17
Speaker 5: In the state.
13:18
Speaker 1: Joining me is Caleb Scoville, a sociology professor at Tuff's
13:22
Speaker 1: University who's writing a book on the politics of the
13:26
Speaker 1: Delta smelt. So Caleb, tell us a little about this
13:30
Speaker 1: little fish.
13:32
Speaker 6: The Delta smelt is a small, translucent fish, you know,
13:36
Speaker 6: it's not two three inches long. It lives in the
13:40
Speaker 6: Sacramento San Joaquin Delta, which is where California's major river
13:45
Speaker 6: systems converge, just east of the San Francisco Bay where
13:48
Speaker 6: before the rivers kind of converge and flow out to
13:51
Speaker 6: the Bay. It's a fish that only lives in that area.
13:54
Speaker 6: It's California's largest estuary and it is also the center
13:58
Speaker 6: of California's water district system. So it's where giant pumps
14:03
Speaker 6: were installed in the mid twentieth century to irrigate farmland
14:08
Speaker 6: in the Central Valley California San Joaquin Valley, and also
14:12
Speaker 6: provides water to major cities in central and southern California,
14:17
Speaker 6: as well as the Silicon Valley. So the fish is small,
14:19
Speaker 6: but it's a native fish that used to be one
14:21
Speaker 6: of the most abundant species in that ecosystem, and it
14:25
Speaker 6: has declined in recent decades because of the human transformations
14:29
Speaker 6: of its ecosystem.
14:31
Speaker 1: When did it start to become controversial.
14:34
Speaker 6: That's a complicated question. You know, the species became considered
14:37
Speaker 6: for listing under the Endangered Species Act in the late
14:41
Speaker 6: nineteen eighties and early nineteen nineties, and at the time,
14:44
Speaker 6: you know, it was somewhat controversial because regulators and stakeholders,
14:49
Speaker 6: you know, agricultural interest cities, understood that it may complicate
14:53
Speaker 6: the operation of California's water infrastructure. So it was controversial
14:57
Speaker 6: even before it was listed under the Endangered Species Act.
15:00
Speaker 6: But this controversy was mostly within the world of California
15:04
Speaker 6: water policy. So in the early nineteen nineties, there were
15:08
Speaker 6: you know, concerns about what the effects of protecting this
15:10
Speaker 6: species would be. When it was listed under the Endangered
15:13
Speaker 6: Species Act, it continued to be controversial, but the listening
15:16
Speaker 6: of this species, and also conflict over water quality standards
15:20
Speaker 6: between the federal government and the state government resulted actually
15:23
Speaker 6: in a lot of cooperation to avoid future lawsuits, and
15:26
Speaker 6: so the controversy sort of died down a little bit,
15:29
Speaker 6: and it really wasn't until the mid two thousands, the
15:33
Speaker 6: mid aus and late aughts that the controversy picked up
15:36
Speaker 6: again and This was initially precipitated by a legal decision
15:41
Speaker 6: by a judge in California, actually a Republican appointed judge
15:45
Speaker 6: that the regulations protecting this species from those pumps that
15:49
Speaker 6: send water to farms and cities in California, the way
15:52
Speaker 6: that they were running the pumps was in violation of
15:54
Speaker 6: the Endangerous Species Act, and so this resulted in a
15:58
Speaker 6: brief but dramatics shut off of the pump, and then
16:01
Speaker 6: in order that new regulations had to be put in place.
16:03
Speaker 6: It was twenty seven two eight that this unfolded.
16:06
Speaker 1: Before that was anything in particular done when it was
16:10
Speaker 1: put on the endangered Species list to help preserve it.
16:14
Speaker 6: Yeah, so when a species is listed under the Endangered
16:17
Speaker 6: Species Act, so any federal agency that has a project
16:22
Speaker 6: that's going to affect the species and could potentially cause
16:26
Speaker 6: harm to the species has to come up with basically
16:30
Speaker 6: a plan to avoid jeopardizing and continued existence of that species.
16:34
Speaker 6: So there were regulations that essentially regulated the amount of
16:37
Speaker 6: water that could be pumped at particular times, and then
16:40
Speaker 6: there were a series of other measures, you know, including
16:43
Speaker 6: various ways of managing water that were tried to save
16:48
Speaker 6: the species from extinction. It's complicated. I mean, there were
16:52
Speaker 6: some habitat restoration projects. There was something called the environmental
16:56
Speaker 6: Water account, which is essentially like setting aside a certain
16:59
Speaker 6: amount of water could be used to pump into its
17:01
Speaker 6: habitat at certain periods of time. All of this is
17:04
Speaker 6: basically a way of managing water to try to balance
17:06
Speaker 6: the needs of ecosystems and the human interest in extracting
17:10
Speaker 6: water from its habitat. Now, I should mention that the
17:12
Speaker 6: ADULTA smelt is just one species among many that are
17:16
Speaker 6: affected by California's water distribution system. Salmon that are native
17:20
Speaker 6: to that area are also listed on the Endangered Species
17:22
Speaker 6: Act as our sturgeon, and there's a whole complex ecosystem.
17:26
Speaker 6: So the ADULTA smelt, it's one species, but it's also
17:29
Speaker 6: very sensitive species, so it's often treated as a kind
17:31
Speaker 6: of indicator species for the overall quality and help of
17:34
Speaker 6: the ecosystem. And these initial efforts, it was called the
17:38
Speaker 6: calf Ed program cl feed program were intended to sort
17:42
Speaker 6: of balance the needs of the environment and people's interest
17:45
Speaker 6: in water, and as also as a way to provide
17:47
Speaker 6: stability to avoid future lawsuits that might shut down the
17:51
Speaker 6: system because people were really interested in stability.
17:53
Speaker 1: When the judge issued this order, how did it change
17:57
Speaker 1: what California was doing with its water systems.
18:00
Speaker 6: Or did it did require the agencies to rewrite the
18:04
Speaker 6: way that they were regulating the pumps and managing water
18:09
Speaker 6: in dams. I don't think it's fair to say that
18:12
Speaker 6: it completely reorganized the way water was used in the States.
18:16
Speaker 6: It's a very complex regulatory process that involves using the
18:20
Speaker 6: best available science to come up with a plan to
18:23
Speaker 6: avoid jeopardizing the continued existence of this species. So there
18:27
Speaker 6: was an initial shutdown of water for just a very
18:29
Speaker 6: short amount of time days, and then there was a
18:31
Speaker 6: new regulatory regime that was put in place, and that
18:35
Speaker 6: was in place for many years. Overall, protections of the
18:37
Speaker 6: Delta Smeuth only account for a pretty small, pretty marginal
18:41
Speaker 6: amount of water that could have otherwise been used by people.
18:44
Speaker 6: But it was the dramatic shut off that actually created
18:46
Speaker 6: a lot of headlines. And so really the controversy even
18:50
Speaker 6: then was fairly muted, and what made it a national
18:53
Speaker 6: controversy was actually not anything regulatory at all or anything legal.
18:58
Speaker 6: It was when Sean Hannity had an entire episode of
19:01
Speaker 6: his show on the Delta Smelt sort of blaming drought
19:05
Speaker 6: and Great Recession era hardships on the protections of the
19:09
Speaker 6: Delta Smelt. So that was in two thousand and nine, actually,
19:12
Speaker 6: more than a year after the decision that resulted in
19:15
Speaker 6: the brief shut off of the pumps. So Hannity is
19:18
Speaker 6: actually the person who brought the Delta Smelt into the
19:21
Speaker 6: national public sphere.
19:23
Speaker 1: And why do you think this caught on as a controversy.
19:26
Speaker 6: First of all, was the contact Barack Obama had just
19:29
Speaker 6: become president of the United States. There was also a
19:32
Speaker 6: recession which was causing a lot of employment right after
19:36
Speaker 6: the financial crisis of two thousand and eight. California also
19:40
Speaker 6: at that time, and it continues to be with Trump
19:42
Speaker 6: just kind of an avatar for everything that is supposedly
19:45
Speaker 6: wrong with liberalism and environmentalism in the United States for
19:50
Speaker 6: a certain subset of conservative commentators. So those aspects sort
19:55
Speaker 6: of align. And then the Delta Smelt, being a very
19:58
Speaker 6: small and obscure species that is uncharismatic. You know, it's
20:02
Speaker 6: two inches long, it has a funny name, it became
20:05
Speaker 6: a vessel for the implicit message that liberal environmentalists in
20:11
Speaker 6: cities care more about a small uncharismatic species of fish
20:15
Speaker 6: than they care about hardworking.
20:16
Speaker 2: Honest people like you.
20:17
Speaker 6: So there's a kind of implicit message and sometimes very
20:20
Speaker 6: explicit message that environmentalists simply don't care about their fellow Americans.
20:25
Speaker 6: And you know that could also go for liberals, or
20:27
Speaker 6: could go for Obama, or could go for in this
20:30
Speaker 6: case Skeavin Newsom. And you know, because of the delta
20:33
Speaker 6: smell is a species that doesn't have obvious use to people.
20:37
Speaker 6: Isn't large or beautiful or charismatic. Right, It's not the
20:40
Speaker 6: bald eagle, it's not even the salmon. It becomes a
20:42
Speaker 6: very useful symbol for everything that's supposed to be wrong
20:46
Speaker 6: with environmentalism in America.
20:48
Speaker 1: You wrote that the frequent usage of descriptors like tiny
20:52
Speaker 1: or little suggests that the delta smelt small size and
20:55
Speaker 1: lack of charisma made it the perfect icon to drum
20:59
Speaker 1: up right wing resentment, allowing you to become a divisive
21:03
Speaker 1: cultural object. Yeah, I mean it's a culture war, is
21:07
Speaker 1: fish now?
21:08
Speaker 4: Yeah?
21:09
Speaker 6: Exactly. And so there's a very complex and interesting history
21:12
Speaker 6: of California water that the delta smelt plays a role in.
21:16
Speaker 6: And the delta smelt is regulated by the Amagive Species Act.
21:19
Speaker 6: It has accounted for some amount of water being set
21:23
Speaker 6: aside and not used by people over the years. That's true, However,
21:27
Speaker 6: this is a much smaller proportion than many critics would imagine.
21:31
Speaker 6: And also those regulations that protect the Delta smelt also
21:35
Speaker 6: protect the quality of the water for people to use.
21:37
Speaker 6: Because of the where the pumps are, There's only so
21:39
Speaker 6: much you can extract at a particular time, especially, you know,
21:42
Speaker 6: depending on hydrologic conditions, there's only so much you can
21:44
Speaker 6: extract without pulling in seawater right becoming too salty to
21:49
Speaker 6: even use to irrigate crops or drink.
21:51
Speaker 4: So the idea, you know, that you.
21:52
Speaker 6: Could just stop these regulations and take as much wonder
21:55
Speaker 6: as you want is not true at all. So the
21:57
Speaker 6: culture war thing, you know, in two thousand and nine,
22:00
Speaker 6: I see that as kind of the moment where the
22:02
Speaker 6: delta smelt escaped the world of California water politics. And
22:05
Speaker 6: I've done a systematic media analysis to show that there's
22:08
Speaker 6: no relationship between the hydrologic effects of protecting this species
22:12
Speaker 6: and when the controversy flares up. So really, the delta
22:15
Speaker 6: smelt as culture war symbol or culture war object has
22:19
Speaker 6: very little to do with the world of California water.
22:22
Speaker 1: President Trump has blame protections for this fish for the
22:29
Speaker 1: devastating Palisades fire, that the gaps in water access were
22:33
Speaker 1: due to this delta smelt.
22:36
Speaker 6: Yes, he has, and let's be clear, that's completely false.
22:39
Speaker 2: There's zero truth to it.
22:40
Speaker 4: Right.
22:41
Speaker 6: You can see why that connection would pop into his
22:43
Speaker 6: mind because there are regulations of the species that do
22:47
Speaker 6: regulate how much water can be extracted from the sacrament
22:50
Speaker 6: of San Juaking Delta to California's water projects, which are
22:54
Speaker 6: the infrastructure systems. So you can understand the connection. But
22:58
Speaker 6: it's very easy to refuse what he said by looking
23:01
Speaker 6: at the reservoir levels in California and in Southern California
23:05
Speaker 6: in particular, most of which are at or above average
23:08
Speaker 6: for this time of year. There's plenty of water, so
23:11
Speaker 6: it's not a supply issue. If there was an issue
23:13
Speaker 6: with how much water we could take out of the
23:15
Speaker 6: delta because of Endangered Species X protection, it would be
23:18
Speaker 6: reflected in the in the reservoir levels. There were issues
23:21
Speaker 6: at the local level for the system that was designed
23:24
Speaker 6: to handle maybe a house fire, to be able to
23:26
Speaker 6: handle a city fire, right and I'm not qualified to
23:30
Speaker 6: say what should have been done there, but the invocation
23:33
Speaker 6: of the delta smelt is a complete misdirection and it
23:37
Speaker 6: does nothing to help the situation, and in fact, it
23:40
Speaker 6: distracts from you know, the real tragedy and the real
23:43
Speaker 6: problems that we face in a you know, climate change
23:46
Speaker 6: world and also just in cities that face hazards that
23:49
Speaker 6: we need to need to manage.
23:51
Speaker 1: So what's the status of the delta smelt right now?
23:55
Speaker 6: Yeah, the delta smelt remains listed on the endangered species list,
23:58
Speaker 6: as experts working in the systems and natural scientists working
24:01
Speaker 6: in the system would say, it's arguably functionally extinct. So
24:05
Speaker 6: that doesn't mean that there are no delta smelt left
24:07
Speaker 6: in the system, but there are very few. It is
24:09
Speaker 6: not what it used to be. There's now actually many
24:12
Speaker 6: more delta smelts living in a captive population sort of
24:15
Speaker 6: trying to maintain the species and do some experimental releases
24:19
Speaker 6: to try to potentially propagate it permanently in the delta
24:23
Speaker 6: than there are in the wild. So it's actually kind
24:26
Speaker 6: of a sad example of what we've done to ecosystems,
24:30
Speaker 6: but it's not as much of a factor in California
24:32
Speaker 6: water policy as it might seem given how much we're
24:35
Speaker 6: talking about it, And there.
24:36
Speaker 1: Are other protected fish in California.
24:40
Speaker 6: There are other species protections like salmon. And you'll notice
24:43
Speaker 6: that the folks who will vilify the Delta smelt and
24:46
Speaker 6: regulations of the Delta melt rarely mentioned Sam because they
24:49
Speaker 6: know that driving salmon to extinction is not a very
24:52
Speaker 6: politically popular project. So I think that says something about
24:55
Speaker 6: why the Delta smelt is such a useful strategic object
25:00
Speaker 6: for people who want to play kind of divisive culture
25:02
Speaker 6: war games against environmentalists or imagined environmentalists. But you know,
25:07
Speaker 6: there's a lot of other species that probably deserve our
25:10
Speaker 6: care just as much.
25:11
Speaker 1: It's really a fascinating evolution of the Delta smelt into
25:15
Speaker 1: a culture wars issue. Thanks so much, Caleb. That's Caleb Scoville,
25:20
Speaker 1: a sociology professor at Tufts University. Coming up next, some
25:24
Speaker 1: unique lawsuits against the federal government.
25:27
Speaker 3: Over ice raids. This is Bloomberg.
25:31
Speaker 1: More arrests in President Trump's cracked down on illegal migrants.
25:36
Speaker 1: I says there were nearly twelve hundred arrests yesterday and today.
25:40
Speaker 1: Federal agents conducted publicized arrests of undocumented migrants in New
25:45
Speaker 1: York City, with the new Homeland Security Secretary Christy Nome
25:49
Speaker 1: on hand to watch. She posted a video saying, quote,
25:53
Speaker 1: dirt bags like this will continue to be removed from
25:57
Speaker 1: our streets. ICE has also touted rests in Chicago, Baltimore, Buffalo, Atlanta,
26:03
Speaker 1: and San Francisco, saying the total of arrests since January
26:07
Speaker 1: twenty third is three thousand, five hundred and fifty two.
26:12
Speaker 1: In the meantime, some novel lawsuits have been filed over
26:15
Speaker 1: the Trump immigration enforcement actions. Chicago. Organizations that advocate for
26:20
Speaker 1: the national Sanctuary City movement have sued the federal government
26:24
Speaker 1: over its decision to conduct mass deportation rates in the city,
26:28
Speaker 1: saying that the policy violates their First Amendment rights, and
26:32
Speaker 1: a group of Quaker congregations from four states has sued
26:36
Speaker 1: the federal government over a recent policy reversal that allows
26:40
Speaker 1: immigration agents to conduct searches and arrests in so called
26:44
Speaker 1: sensitive areas like churches and schools. They say the policy
26:48
Speaker 1: violates their First Amendment rights. Joining me is immigration law
26:51
Speaker 1: expert Leon Fresco, a partner at Holland and Knight. Chicago
26:55
Speaker 1: organizations are suing the federal government over its decision to
27:00
Speaker 1: conduct mass deportation raids in the city. I mean, explain
27:04
Speaker 1: what the violation they claim is.
27:06
Speaker 4: This is quite a creative lawsuit. I am dubious on
27:10
Speaker 4: its chances of success, but basically they are approaching it
27:14
Speaker 4: from this premise. They are saying that these Chicago organizations
27:20
Speaker 4: have a right to advocate for Chicago to be a
27:23
Speaker 4: sanctuary city, and that the Seventh Circuit, which is the
27:28
Speaker 4: Court of Appeals that governs the Chicago area, so that's
27:31
Speaker 4: the court right below the Supreme Court, has ruled that
27:34
Speaker 4: there's nothing that Chicago does that violates anything related to
27:38
Speaker 4: immigration law. And so because these groups have a First
27:43
Speaker 4: Amendment right to advocate that Chicago maintain its sanctuary policies
27:49
Speaker 4: that don't violate immigration law. Because of statements that the
27:55
Speaker 4: Trump administration and Trump administration officials have made against Chicago
28:01
Speaker 4: saying that because they are so boisterous in their sanctuary
28:06
Speaker 4: city policies, they will be retaliated against with immigration enforcement.
28:11
Speaker 4: That this is not legitimate immigration enforcement. This is instead
28:15
Speaker 4: an attempt to thwart free speech, which could lead to
28:19
Speaker 4: the apprehension of perhaps US citizens engaging in free speech
28:24
Speaker 4: or helping immigrants, et cetera. And so their requested relief
28:29
Speaker 4: is no more raids in Chicago. And so that's where
28:33
Speaker 4: I think the case goes a little bit off the rails.
28:36
Speaker 4: Is that seems quite broad to fix this potential violation
28:41
Speaker 4: their claiming might occur.
28:44
Speaker 3: So this is novel.
28:45
Speaker 1: Have you ever heard this kind of an argument being
28:47
Speaker 1: made before.
28:49
Speaker 4: I have seen a similar argument to this with regard
28:54
Speaker 4: to people in immigration detention, where they say I've been
28:58
Speaker 4: retaliated against because I went on a hunger strike or
29:02
Speaker 4: I protested the conditions of my immigration detention, and hence
29:07
Speaker 4: my recourse for this should be that I don't get
29:11
Speaker 4: deported because I need to be able to pursue this
29:13
Speaker 4: claim that my First Amendment rights have been violated. And
29:17
Speaker 4: the courts have been very dubious and skeptical of these
29:21
Speaker 4: on an individual basis, So to think that they'll do
29:24
Speaker 4: it on a city wide basis and just ban, you know,
29:27
Speaker 4: these types of enforcement actions in Chicago on this basis
29:32
Speaker 4: seems very unlikely. And it's also extremely unlikely because the
29:35
Speaker 4: case has been assigned to a judge that was appointed
29:38
Speaker 4: vice President Trump. So if they thought that they were
29:42
Speaker 4: going to have a good chance, maybe because a different
29:44
Speaker 4: type of judge might be appointed. They didn't get the
29:47
Speaker 4: best of luck there, and so from that standpoint, I
29:51
Speaker 4: think a generally unlawful theory. You know, they lead to
29:55
Speaker 4: even more lack of success given where it's been assigned.
29:59
Speaker 3: I mean, I don't.
29:59
Speaker 1: See how a city can stop lawful deportation raids by
30:04
Speaker 1: the federal government.
30:05
Speaker 3: I mean, the federal government has the right to make these.
30:09
Speaker 4: Raids, right, oh, correct. And this isn't even a city.
30:11
Speaker 4: This is organizations within a city saying that they want
30:14
Speaker 4: to continue having their free speech and that these raids
30:18
Speaker 4: harm their free speech because they're being done in retaliation
30:21
Speaker 4: for their free speech. I mean, look, it's worth a shot.
30:25
Speaker 4: It's a creative argument. It's interesting, but I don't think
30:29
Speaker 4: it's likely to be successful at the end of the day.
30:32
Speaker 1: So the Trump administration is targeting, you know, Chicago, also
30:36
Speaker 1: targeting New York, and there were raids, and the Secretary
30:42
Speaker 1: of Homeland Security went on these raates and she posted
30:48
Speaker 1: about the raid.
30:49
Speaker 4: Well, I think, look, they are trying to very much
30:52
Speaker 4: trigger to the public that immigration enforcement is a thing.
30:57
Speaker 4: It's happening. If you are here and legally, you need
30:59
Speaker 4: to be afraid of it, and so they're trying to
31:02
Speaker 4: get as much bang for the buck as they can,
31:05
Speaker 4: knowing that at the end of the day they are
31:09
Speaker 4: running up against very soon a significant push up against
31:13
Speaker 4: what's the current detention capacity, and so very soon, either
31:17
Speaker 4: they're going to have to release the very people they've
31:19
Speaker 4: just been arresting and create the sort of hamster wheel
31:22
Speaker 4: where they arrest people, they put it on TV, but
31:25
Speaker 4: then a couple of weeks later they get released because
31:27
Speaker 4: there's no facilities for them, or they're going to have
31:30
Speaker 4: to get congressional funding quite quickly to start ramping up
31:35
Speaker 4: the detention and removal capacity. But it's not going to
31:39
Speaker 4: be sustainable to do a thousand arrests a day, and
31:44
Speaker 4: then all of a sudden think that that's going to
31:47
Speaker 4: lead to an indefinite ability to do that without more
31:50
Speaker 4: detention space, without more imtegration courts, et cetera.
31:54
Speaker 1: I'm curious because apparently the New York Police Department told
31:59
Speaker 1: officers that it's rules block them because New York is
32:02
Speaker 1: a sanctuary city, it's rules block them from participating in
32:06
Speaker 1: immigration enforcement actions conducted by ICE.
32:10
Speaker 3: But the Mayor Eric Adams.
32:12
Speaker 1: Seemed to imply that this was being done in coordination
32:16
Speaker 1: with the NYPD.
32:18
Speaker 4: Well, I think that what happens is immigration enforcement is
32:22
Speaker 4: in the eye of the beholder. And so if the
32:25
Speaker 4: NYPD is simply there to protect the ICE agents, so
32:30
Speaker 4: to speak, and is not actually interacting in any way
32:35
Speaker 4: with the actual people being apprehended, who are the foreign nationals,
32:40
Speaker 4: then they can try to have it both ways and
32:42
Speaker 4: say they're not in any way, shape or form engaging
32:47
Speaker 4: in immigration enforcement. They're there to protect the ICE agents,
32:52
Speaker 4: and I think that's what you're seeing there.
32:54
Speaker 1: And another novel lawsuit about the raids, a collection of
32:59
Speaker 1: Quaker group is suing the Trump administration over its policy
33:04
Speaker 1: that allows federal agents to arrest undocumented immigrants in houses
33:12
Speaker 1: of worship.
33:13
Speaker 4: Yes, this is an outgrowth of the policy that was
33:17
Speaker 4: called the Sensitive Locations policy, where the Sensitive Locations Policy
33:22
Speaker 4: was actually rescinded and says now that instead of not
33:27
Speaker 4: being able to go into places like schools and churches
33:30
Speaker 4: to create immigration actions, that there now can be ICE
33:35
Speaker 4: going into these churches and schools, et cetera. Now here's
33:39
Speaker 4: the interesting thing about that. I don't think ICE has
33:42
Speaker 4: any intention of doing large scale raids in schools or
33:45
Speaker 4: churches or anywhere else like that in any of those
33:48
Speaker 4: sense of locations. But what they are trying to discourage,
33:51
Speaker 4: because this has happened a lot. I mean, this happened
33:53
Speaker 4: a few times during the Bush administration in two thousand
33:56
Speaker 4: and seven, is that people would run into a church
34:00
Speaker 4: they saw ice was coming. You know, they'd get some
34:03
Speaker 4: notice and they'd see ice coming and they'd run out
34:06
Speaker 4: of the back of their house and into a church.
34:08
Speaker 4: And that these standoffs would happened in these churches where
34:11
Speaker 4: the church would provide sanctuary for the person for months,
34:16
Speaker 4: and you'd see articles about this and you'd say, what
34:19
Speaker 4: is going on here? And so they're trying to avoid
34:21
Speaker 4: them by saying, look, that's not going to happen. We'll
34:23
Speaker 4: go in and we will grab that person if they
34:25
Speaker 4: expect to run into the church to do that. But
34:28
Speaker 4: of course, now you're going to have this lawsuit and
34:31
Speaker 4: we'll see how successful it is. I don't think it's
34:34
Speaker 4: likely to be successful. But the concept will be that
34:38
Speaker 4: they will say that this was a change that is,
34:41
Speaker 4: you know, needed to be done by notice and comment
34:44
Speaker 4: visa the Administrative Procedure Act, and you can't just make
34:48
Speaker 4: such an arbitrary and capricious change. And it's also violating
34:52
Speaker 4: the First Amendment freedom of religion because people now won't
34:55
Speaker 4: be allowed to worship in the way they want to
34:59
Speaker 4: because they're afraid that ice is going to come and
35:01
Speaker 4: get them. And so we'll see. I mean, I will
35:05
Speaker 4: say this, the Supreme Court has been much more tolerant
35:10
Speaker 4: or favorable toward religious based arguments than non religious based arguments.
35:16
Speaker 4: So to the extent that one is making a religious
35:20
Speaker 4: based argument that your freedom of religion is being impinged
35:25
Speaker 4: upon being able to go to church because now you're
35:29
Speaker 4: afraid that church is going to be a place where
35:31
Speaker 4: you're going to get snagged. I mean, it's interesting. I
35:34
Speaker 4: think the question is where does that get narrowly tailored?
35:37
Speaker 4: And also, the courts don't like these sort of facial
35:40
Speaker 4: challenges without facts. I think what they would say is, look,
35:43
Speaker 4: if you come to us with a specific set of
35:47
Speaker 4: violations as applied, we may say, yes, as applied, these
35:51
Speaker 4: are violating the First Amendment and your free exercise of religion.
35:56
Speaker 4: But just telling us that immigration raids in general can
36:00
Speaker 4: happen in churches doesn't seem like this kind of facial
36:04
Speaker 4: challenge that the Supreme Court likes. So you have their
36:07
Speaker 4: aversion to facial challenges, plus you have their favorability toward
36:11
Speaker 4: religious challenges. Plus you have the fact that a lot
36:15
Speaker 4: of people do like immigration enforcement in the Supreme Court,
36:18
Speaker 4: all clashing together. But my imagination would be that the
36:23
Speaker 4: immigration enforcement will prevail there until specific examples are given.
36:28
Speaker 1: It makes more sense to me than the sanctuary Cities case.
36:31
Speaker 1: At least it's got your first amendment in religion, whereas
36:34
Speaker 1: the sanctuary Cities case, the argument seems really attenuated.
36:38
Speaker 4: It's a little bit more of a challenge to win
36:40
Speaker 4: that case.
36:41
Speaker 3: But as you.
36:42
Speaker 1: Said, both are challenging. Thanks so much, Leon. That's Leon Fresco,
36:47
Speaker 1: a partnered hollanden Knight. And In other legal news today,
36:50
Speaker 1: a federal judge in Washington has temporarily blocked the Trump
36:54
Speaker 1: administration from enforcing a new directive to hal payments of
36:58
Speaker 1: federal grants, loans, and other assistants to an array of
37:02
Speaker 1: programs across the country. The order was in response to
37:06
Speaker 1: a lawsuit filed by a coalition of nonprofit organizations challenging
37:11
Speaker 1: the payment freeze. The suit claims that even a temporary
37:14
Speaker 1: halt in funding could immediately deprive people and communities of
37:19
Speaker 1: their life saving services, including healthcare, small business support, and
37:23
Speaker 1: programs for the LGBTQ community. The judge will hold another
37:28
Speaker 1: hearing on February third to consider whether to order a
37:32
Speaker 1: longer term freeze. And that's it for this edition of
37:35
Speaker 1: The Bloomberg Law Show. Remember you can always get the
37:37
Speaker 1: latest legal news on our Bloomberg Law podcasts. You can
37:41
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