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SCOTUS Turns Trump Down & Another EPA Loss · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
0:08
Speaker 2: President Donald Trump is zero to two at the Supreme
0:11
Speaker 2: Court in his second term. The Court rejected his request
0:15
Speaker 2: to toss a judge's order that requires the quick disbursement
0:20
Speaker 2: of as much as two billion dollars owed to contractors
0:23
Speaker 2: for already completed work. The justices were divided five to four,
0:28
Speaker 2: with the Chief Justice and Justice Amy Cony Barrett joining
0:32
Speaker 2: the three liberals in the majority. And joining me is
0:35
Speaker 2: Bloomberg News Supreme Court reporter Greg Store Greg tell us
0:39
Speaker 2: about this dispute.
0:42
Speaker 3: So this all started with the administration putting a broad
0:45
Speaker 3: freeze on foreign aid and a judge putting a temporary
0:49
Speaker 3: restraining order on that broad freeze. And where we are
0:53
Speaker 3: now is that the judge said, Hey, despite the fact
0:56
Speaker 3: that I put that freeze on hold, it's still happening.
1:00
Speaker 3: So in a follow up order, this judge, Judge all Lee, said,
1:03
Speaker 3: I'm going to require the administration to make payments of
1:07
Speaker 3: anything that was owed as of February thirteenth, and you
1:12
Speaker 3: have thirty six hours to do it. And so what
1:15
Speaker 3: the Supreme Court case was about was the Trump administration saying, hey,
1:19
Speaker 3: put that compliance order on hold because we can't actually
1:23
Speaker 3: comply that quickly, and the judge overstepped his authority by
1:27
Speaker 3: ordering us to make these payments.
1:28
Speaker 2: They said they couldn't do it that quickly, But this
1:31
Speaker 2: was money that was supposed to be paid before.
1:34
Speaker 4: Right.
1:34
Speaker 2: Does that make sense that they said they couldn't do
1:36
Speaker 2: it that quickly. Don't they have it on hand?
1:39
Speaker 3: It's certainly hard to tell, and based on the court record,
1:42
Speaker 3: it's not clear what exactly is going on. We know
1:44
Speaker 3: that this is happening at the same time that huge
1:48
Speaker 3: numbers of USAID, the agency that funds most of this staffers,
1:53
Speaker 3: have been laid off or furloughed, and so you know,
1:57
Speaker 3: it may be at least in part that they're aren't
2:00
Speaker 3: people there who can do this sort of stuff the
2:02
Speaker 3: way they used to. But yes, your underlying question is
2:06
Speaker 3: aren't these all payments that under the normal course, would
2:09
Speaker 3: have been made by now, or at least aren't most
2:12
Speaker 3: of them? And the answer is yes. So one might
2:15
Speaker 3: have imagined that there was a mechanism for actually paying
2:17
Speaker 3: these things.
2:19
Speaker 2: So you had two conservatives, the Chief Justice and Justice
2:22
Speaker 2: Amy Coney Barrett, joining with the three liberals. What did
2:26
Speaker 2: they decide.
2:27
Speaker 3: Yeah. So again, this was the Trump administration asking the
2:31
Speaker 3: Supreme Court to put this compliance order, this order to
2:34
Speaker 3: pay as much as two billion dollars on hold, and
2:37
Speaker 3: Chief Justice Roberts, Justice Barrett joined the Court's three liberal
2:41
Speaker 3: justices to say, no, we're not going to put that
2:44
Speaker 3: order on hold. Now, there's a twist to this, which
2:46
Speaker 3: is that the order was originally put in place last week,
2:50
Speaker 3: on Tuesday of last week, and Chief Justice Roberts had
2:55
Speaker 3: temporarily put it on hold, which means that the deadline
2:59
Speaker 3: for actually make these payments has already passed. The original
3:02
Speaker 3: deadline was a week ago today, and so it's not
3:07
Speaker 3: clear exactly what happens next. Obviously, since that deadline has passed,
3:11
Speaker 3: the administration can't meet it. The Supreme Court did suggest
3:15
Speaker 3: that the district Judge juj A. Lee should clarify his
3:19
Speaker 3: order and take into account the feasibility of meeting deadlines.
3:23
Speaker 3: So probably the next step involves him. But the order
3:26
Speaker 3: from the court from the Supreme Court today was a
3:30
Speaker 3: little bit ambiguous on exactly how this is supposed to work.
3:34
Speaker 2: Four Conservatives dissented, Justices Clarence Thomas, Samuel Alito, Neil Gorsich
3:40
Speaker 2: and Brett Kavanaugh. Justice Alito said he was stunned by
3:45
Speaker 2: the majority's decision, and he wrote an eight page descent
3:49
Speaker 2: to the majority's one paragraph order.
3:52
Speaker 3: Well, his problem was, he said that the district judge
3:55
Speaker 3: way overstepped his authority. He called it. Justice Alito called
3:59
Speaker 3: it judicial hubris, and he said the court was now
4:02
Speaker 3: allowing that, rewarding that and as Leader put it, quote,
4:06
Speaker 3: it imposes a two billion dollar penalty on American taxpayers.
4:09
Speaker 3: To say that this was a strongly worded dissent would
4:12
Speaker 3: be an understatement. Essentially, he said that he thought the
4:17
Speaker 3: administration had a really strong argument that the groups could
4:20
Speaker 3: not recoup this money, could not force these payments, at
4:23
Speaker 3: least in the context of this lawsuit. He talked about
4:27
Speaker 3: sovereign immunity, He talked about the court's jurisdiction, and he
4:30
Speaker 3: said that because of that, he would have kept a
4:34
Speaker 3: pause on this lower court order and maybe even granted
4:38
Speaker 3: review of the administration's arguments, granted cert in the case.
4:42
Speaker 3: But he certainly would not have let this lower court
4:45
Speaker 3: order be reinstated and essentially forced the administration to make
4:49
Speaker 3: these payments.
4:50
Speaker 2: Did the administration appeal the judge's order itself, or did
4:54
Speaker 2: it appeal the compliance timeline for the order.
4:58
Speaker 3: The administration appealed only the compliance timeline. It did not
5:02
Speaker 3: challenge the original temporary restraining order that lifted the freeze
5:08
Speaker 3: that have been put in place. And part of the
5:10
Speaker 3: reason for that is that there are real questions about
5:14
Speaker 3: whether a t RO can be appealed at all. Normally,
5:17
Speaker 3: the answer is no, it can't be appealed, and the
5:20
Speaker 3: administration in another case, has been trying to sort of
5:24
Speaker 3: carve out an exception to that general principle for cases
5:28
Speaker 3: involving the power of the executive branch. But the administration
5:33
Speaker 3: argued that this compliance order is not just a temporary
5:35
Speaker 3: restraining order that keeps the status quo in place, but
5:38
Speaker 3: it's actually an injunction that forces them to do something, namely,
5:42
Speaker 3: pay a lot of money. And so they were arguing
5:46
Speaker 3: that is something where the Supreme Court can get involved
5:48
Speaker 3: right away, well less than.
5:50
Speaker 2: Two months into Trump's second term, and this is the
5:54
Speaker 2: second time the administration has gone to the court, and
5:58
Speaker 2: not in the ordinary course appealing an appellate court's decision,
6:03
Speaker 2: but on an emergency basis. Do you think that was
6:05
Speaker 2: part of the reason that those five justices said no.
6:10
Speaker 3: You know, it's hard to say too much about the
6:12
Speaker 3: motivations of the five because the order itself is only
6:17
Speaker 3: a page along and really doesn't have any reasoning. So
6:19
Speaker 3: I'm speculating to some degree here. It is certainly unusual
6:23
Speaker 3: for the Supreme Court to get involved in any litigation
6:27
Speaker 3: this quickly, and that is probably part of the hesitance.
6:31
Speaker 3: The other part was very likely that normally a district judge,
6:35
Speaker 3: if he or she enters a temporary restraining order or
6:38
Speaker 3: any other order, has some power to enforce that if
6:41
Speaker 3: a party's not complying with it, And had the Supreme
6:44
Speaker 3: Court granted the Trump administration request, it would have done
6:48
Speaker 3: a little cutting out of the legs of a federal
6:50
Speaker 3: district judges when they see an order not being complied
6:55
Speaker 3: with when they conclude that a party, in particularly this administration,
6:59
Speaker 3: might not be applying with an order. So I would imagine,
7:02
Speaker 3: again I'm speculating a little bit here, but I would
7:05
Speaker 3: very much imagine that was in the back of the
7:06
Speaker 3: minds of many of the justices in the majority.
7:09
Speaker 2: So this is the second time that the Supreme Court
7:13
Speaker 2: has turned the Trump administration away less than two weeks ago,
7:17
Speaker 2: they refuse to let Trump fire the head of an agency.
7:21
Speaker 2: Does this indicate that the court is going to provide
7:23
Speaker 2: some guardrails for Trump or is it too soon to tell?
7:26
Speaker 3: I would say it's too soon to tell. It gives
7:28
Speaker 3: a little suggestion that they might be willing to keeping
7:31
Speaker 3: in mind that it's only five of the justices for
7:34
Speaker 3: them dissented in very strong terms. The earlier case, which
7:37
Speaker 3: is one that almost certainly will be back probably in
7:40
Speaker 3: the next to a week or two, involved the President
7:43
Speaker 3: trying to fire somebody. This guy who is known as
7:46
Speaker 3: the Special Council Hampton Dellinger, is basically the head of
7:48
Speaker 3: an office that protects whistleblowers, and the Court essentially kicked
7:53
Speaker 3: the can down the road a little bit, which let
7:56
Speaker 3: Hampton Dellinger stay in his job for now, but left
8:00
Speaker 3: open whether ultimately the administration will be able to fire him.
8:03
Speaker 2: Gorsachen Alido also dissented in that case, the Dellinger case.
8:08
Speaker 2: Do you think that indicates that they are two pretty
8:12
Speaker 2: reliable votes for Donald Trump in every case?
8:16
Speaker 3: I don't want to say anything too broad because these
8:18
Speaker 3: are individual cases, but certainly, if I'm the Trump administration,
8:22
Speaker 3: if I'm Donald Trump. I feel very good about Sam
8:24
Speaker 3: Alito and Neil Gorsich in most of the cases that
8:27
Speaker 3: are likely to come before the court. Probably also Clarence Thomas, who,
8:30
Speaker 3: even though he wasn't part of that original dissent, has
8:33
Speaker 3: over the years strongly suggested that he is sympathetic to
8:36
Speaker 3: what Donald Trump is trying to do. And then, you know,
8:39
Speaker 3: as with so many cases at the Supreme Court, these
8:42
Speaker 3: fights are probably going to depend on the sort of
8:45
Speaker 3: center right justices of John Roberts, Amy Cony Barrett, and
8:49
Speaker 3: Brett Kavanaugh to determine which side ultimately wins.
8:53
Speaker 2: Yeah, I didn't know whether to add in Clarence Thomas there,
8:55
Speaker 2: because he could have had a lot of different reasons
8:58
Speaker 2: for agreeing with the major already on the Dellinger case. So,
9:02
Speaker 2: but that did surprise me that he was with the
9:04
Speaker 2: majority there.
9:05
Speaker 3: I have a theory, but it's just a theory, which
9:07
Speaker 3: is that he basically took one for the team. Did
9:10
Speaker 3: Roberts a favor because if he had joined the descent
9:13
Speaker 3: there would not have been five justices on board for anything,
9:17
Speaker 3: you know, this notion of holding it in the bands,
9:19
Speaker 3: and so by not dissenting, he or at least not
9:23
Speaker 3: dissenting publicly. He you know, let the court issue some
9:28
Speaker 3: sort of order. So that's my theory.
9:31
Speaker 2: I think it's a good theory, Greg, because there's often
9:34
Speaker 2: horse trading going on behind the scenes. Do these two
9:37
Speaker 2: Trump appeals to the Supreme Court in less than two
9:41
Speaker 2: months tell us that you and the Supreme Court are
9:45
Speaker 2: going to be very busy in the next four years.
9:48
Speaker 2: I mean, one hundred cases have already been filed over
9:51
Speaker 2: his executive orders and the like.
9:55
Speaker 3: Absolutely. I think both these two cases we've talked about,
9:58
Speaker 3: the foreign aid funding and the Special Council case are
10:02
Speaker 3: likely to come back to the Supreme Court pretty quickly.
10:04
Speaker 3: And then we have all the one hundred other cases
10:07
Speaker 3: involving things like birthright citizenship, the mass firing of employees,
10:12
Speaker 3: funding for other parts of the government, and very very
10:15
Speaker 3: likely these will get up to the Supreme Court fairly quickly.
10:18
Speaker 3: That being said, one possible effect of the Supreme Court's
10:23
Speaker 3: ordered today might be that it sends a bit of
10:27
Speaker 3: a message to the Trump administration, think carefully before you
10:30
Speaker 3: bring stuff to us, because we're not just going to
10:32
Speaker 3: be a rubber stamp for you. So it might have
10:35
Speaker 3: some effect in terms of reducing the number of applications
10:39
Speaker 3: that the Trump administration brings to the Supreme Court.
10:41
Speaker 2: I'll bet the justices are hoping that's true. Thanks so much, Greg.
10:46
Speaker 2: That's Bloomberg Supreme Court reporter Greg Store coming up next
10:50
Speaker 2: on the Bloomberg Law Show. The Supreme Court makes it
10:53
Speaker 2: harder for the EPA to police sewage discharges in another
10:57
Speaker 2: loss for the agency at the Court, and later in
11:00
Speaker 2: the show, the justices confront the question of what to
11:04
Speaker 2: do with the growing pile of nuclear waste. Another setback
11:09
Speaker 2: for the EPA at the Supreme Court, with the justices
11:13
Speaker 2: ruling for San Francisco in a case about the discharge
11:16
Speaker 2: of raw sewage that sometimes occurs during heavy rains, a
11:21
Speaker 2: ruling that will make it harder for environmental regulators to
11:25
Speaker 2: limit water pollution. In a five to four vote, the
11:28
Speaker 2: Court's conservative majority ruled that the EPA overstepped its authority
11:33
Speaker 2: under the Clean Water Act with water pollution permits that
11:37
Speaker 2: contain vague requirements for maintaining water quality. The decision is
11:42
Speaker 2: the latest in which the conservative justices have rained in
11:46
Speaker 2: pollution control efforts. But one conservative justice, Amy Coney Barrett,
11:52
Speaker 2: joined the court's three liberals in descent. My guest is
11:55
Speaker 2: environmental law expert Pat Parento, a professor at the Vermont
11:59
Speaker 2: Law and Grad you at School. Pat Justice Samuel Alito
12:03
Speaker 2: wrote the majority opinion. Why did the five Conservatives rule
12:08
Speaker 2: against the EPA?
12:10
Speaker 1: So Alito wants to rewrite the Clean Water Act, No surprise,
12:14
Speaker 1: he doesn't like the way Congress set it up, and
12:17
Speaker 1: so he's instructed EPA that when they're dealing with a
12:21
Speaker 1: problem like combined sewer overflows, where you have a mixture
12:26
Speaker 1: of pollutants. Right, if you think about this, a CSO
12:31
Speaker 1: diverts sewage from the treatment plant directly in this case,
12:37
Speaker 1: to the ocean, but it also collects all the storm
12:40
Speaker 1: water from the urban surface. So you have this literally
12:46
Speaker 1: toxic soup of dozens of different kinds of pollutants. So
12:52
Speaker 1: EPA's approach to this kind of a problem is to say,
12:56
Speaker 1: we have nine best management practices for you to use
13:02
Speaker 1: to limit the number of times you're bypassing your treatment plan.
13:08
Speaker 4: Okay.
13:09
Speaker 1: Alito doesn't talk about any of this. He makes a
13:11
Speaker 1: brief reference to EPA's policy.
13:14
Speaker 4: Approach to CSOs.
13:16
Speaker 1: What he doesn't say is that Congress codified that policy
13:22
Speaker 1: in nineteen eighty two and put it into the Clean
13:25
Speaker 1: Water Act. EPA wasn't making this up. EPA was following
13:30
Speaker 1: what it's done for a very long time, decades. But
13:33
Speaker 1: Alito doesn't like it.
13:35
Speaker 4: He says it's too vague.
13:36
Speaker 1: He says, what you have to do, EPA is come
13:39
Speaker 1: up with specific limits for each and every pollutant that
13:45
Speaker 1: the City of San Francisco is responsible for managing. That's
13:51
Speaker 1: an enormous undertaking, right Just think about all the science,
13:57
Speaker 1: all of the analysis that you'd have to do to
13:59
Speaker 1: develop numerical limits for all of these different pollutants. It's
14:04
Speaker 1: not workable. It's something EPA would do if it could,
14:08
Speaker 1: but it can't. So it does the next best thing.
14:11
Speaker 4: It says to San.
14:12
Speaker 1: Francisco, here are a whole bunch. There's over one hundred
14:16
Speaker 1: pages in this permit, one hundred pages of detail. Here
14:20
Speaker 1: are the things that we know we can set technology
14:22
Speaker 1: standards for. But you still have to meet water quality standards.
14:28
Speaker 1: You still have to protect beneficial uses of water. What
14:31
Speaker 1: are those swimming? What happens when you have a cso
14:35
Speaker 1: bypass sewage raw sewage? As Justice Barrett said in her
14:40
Speaker 1: dissent toilet paper goes into the ocean where people are swimming,
14:45
Speaker 1: and you can imagine what's with the toilet paper. So
14:48
Speaker 1: that's the situation that EPA has inherited and confronted and
14:53
Speaker 1: historically has dealt with. Alito says, no, that's no good
14:58
Speaker 1: going forward, EPA. You have to come up with specific
15:02
Speaker 1: limits for each and every pollutant and tell cities like
15:06
Speaker 1: San Francisco and New York and Boston and even Burlington,
15:10
Speaker 1: Vermont as CSOs. Right, you have to tell all of
15:13
Speaker 1: these municipalities.
15:15
Speaker 4: Exactly what they have to do.
15:18
Speaker 1: To comply with water quality standards. It's an impossible burden
15:23
Speaker 1: for the EPA, certainly given what Trump is proposing to
15:28
Speaker 1: do to EPA, which is to gut it, to hollow
15:32
Speaker 1: it out, so it won't have the staff, it won't
15:35
Speaker 1: have the budget, it won't be able to do what
15:38
Speaker 1: Alito has ordered it to do.
15:41
Speaker 2: Pat We've talked before about how unusual it was that
15:44
Speaker 2: San Francisco, a liberal city, was fighting the EPA over
15:50
Speaker 2: water pollution. Why did San Francisco have such trouble with
15:54
Speaker 2: these regulations?
15:56
Speaker 1: Cost? The fix for these CSOs is incredibly expensive, billions
16:02
Speaker 1: of dollars, literally, billions okay, But you know, if you
16:08
Speaker 1: don't want to comply with the law because you can't
16:11
Speaker 1: because you're too poor or you can't raise the money
16:14
Speaker 1: to do it, you need to go to Congress and
16:16
Speaker 1: get an exemption. But you can't just declare it's too
16:20
Speaker 1: expensive to comply with the Clean Water Act. But that's
16:23
Speaker 1: what's driving San Francisco. It's almost bankrupt. It has enormous
16:28
Speaker 1: financial problems. It has a hollowed out downtown. It's a
16:31
Speaker 1: very sad thing to see San Francisco one of the
16:33
Speaker 1: most beautiful cities on earth when it was vibrant, you know,
16:37
Speaker 1: and flourishing, not now. So that's the basic problem. Other
16:41
Speaker 1: cities have done this. I was involved in one of
16:45
Speaker 1: the earliest cases, suing the city of Portland, Oregon, for
16:49
Speaker 1: its CSO problem. It has nine of these massive tunnels
16:53
Speaker 1: or pipes that discharge to the Willamette River raw sewage.
16:57
Speaker 1: We sued them in the early nineteen ninety We wanted
17:01
Speaker 1: a victory in the Ninth Circuit. And what did Portland do?
17:04
Speaker 1: It fought us for a while, but what did it do?
17:06
Speaker 1: Once the Ninth Circuit said you have to do something
17:08
Speaker 1: about this, It decided to build a whole new treatment plant.
17:12
Speaker 1: It cost a billion dollars, but they got rid of
17:14
Speaker 1: the nine CSO pipes that were contaminating the Willamette River.
17:20
Speaker 1: The city of Chicago had the similar problem. What did
17:23
Speaker 1: they do They built deep underground tunnels to hold the
17:27
Speaker 1: storm water so it didn't overwhelm the treatment plant. Those
17:32
Speaker 1: are the kinds of choices that you face. Separate the
17:36
Speaker 1: storm water from the sewage water, build more treatment facilities,
17:41
Speaker 1: figure out something to do with these CSOs. But one
17:46
Speaker 1: thing you can't do is continue to contaminate public water.
17:51
Speaker 4: That's what the law requires.
17:52
Speaker 2: So, as you mentioned, Justice Amy Coney Barrett, a conservative,
17:56
Speaker 2: sided with the courts three liberal justices. I don't want
18:00
Speaker 2: to say it was the women against the men, but
18:02
Speaker 2: that's what it turned out to be. Tell us about
18:05
Speaker 2: her descent.
18:06
Speaker 1: Amy Komy Barrett nailed it. I mean, what she did
18:09
Speaker 1: was really remarkable. She actually read the statute, you know,
18:14
Speaker 1: and she said, no, I'm looking at the statute. And
18:17
Speaker 1: the statute authorizes EPA to not only set these technology
18:21
Speaker 1: based what are called affluent limitation standards, but Congress deliberately
18:25
Speaker 1: thought about, well what if they don't work? What if
18:28
Speaker 1: they don't actually accomplish the goal of protecting public water,
18:31
Speaker 1: meeting water quality standards, protecting beneficial uses fishing, swimming, drinking water,
18:37
Speaker 1: and all the rest of it. So she said, so
18:39
Speaker 1: Congress thoughtfully said, well, as a backup, you can include
18:43
Speaker 1: in these requirements other limitations necessary to protect water quality.
18:48
Speaker 1: And she said, that's exactly what EPA is doing. It's
18:52
Speaker 1: like going to a doctor and a doctor says your
18:54
Speaker 1: blood pressure's high. The doctor's not going to necessarily tell
18:57
Speaker 1: you what you have to eat to your blood pressure.
19:00
Speaker 1: Now you might, you might suggest less salt, you know,
19:03
Speaker 1: but he's basically going to say, your illness here is
19:07
Speaker 1: high blood pressure. Do something about it. It's something I
19:09
Speaker 1: happen to know something about, right. So that's what she
19:13
Speaker 1: analogized the Clean Water Act to. It was EPA saying
19:17
Speaker 1: you must meet these water quality standards. And by the way,
19:20
Speaker 1: where do water quality.
19:22
Speaker 4: Standards come from?
19:22
Speaker 1: They come from the state. They come from the state
19:25
Speaker 1: of California. So these are standards that California itself has
19:29
Speaker 1: adopted to protect its water and to protect its people
19:33
Speaker 1: because these are public health threats.
19:34
Speaker 4: And so she said, you know, you've.
19:36
Speaker 1: Signed up for protecting these uses of water, now figure
19:40
Speaker 1: out how to do it. And she said, and if
19:42
Speaker 1: EPA overstepped by requiring you to do something that, if
19:46
Speaker 1: she put it as arbitrary or irrational, the remedy for
19:49
Speaker 1: that is to go to court and challenge EPA's requirement
19:54
Speaker 1: when EPA imposes it. The remedy isn't to wait until
19:59
Speaker 1: you violated and then come into court crying and complaining
20:03
Speaker 1: about we really can't comply with the permit we signed.
20:06
Speaker 1: So that was amy Cony Barrett's approach. This is the
20:10
Speaker 1: second time, by the way, she's parted company with her
20:13
Speaker 1: right wing male counterparts. So this is a positive sign.
20:17
Speaker 1: If there's any silver lining in this case, it's that
20:20
Speaker 1: the hard right members of the court are driving amy
20:24
Speaker 1: Cony Barrett into the tender embrace of her female colleagues
20:29
Speaker 1: on the bench.
20:29
Speaker 4: That's what I see happening.
20:31
Speaker 2: Alito said, if the EPA does its work, our holding
20:35
Speaker 2: should have no adverse effect on water quality. How much
20:39
Speaker 2: harder will it be for the EPA to police water
20:43
Speaker 2: quality standards after this decision?
20:46
Speaker 4: Yeah?
20:47
Speaker 1: How many permits has Alito written? I was regional counsel
20:50
Speaker 1: to EPA in New England for several years. I know
20:53
Speaker 1: what it's like to write these permits and enforce these permits.
20:56
Speaker 1: I know what CSOs are all about and how difficult
20:59
Speaker 1: they are. And I can tell you this, it's going
21:01
Speaker 1: to take double the staff of EPA's Water Quality Division
21:05
Speaker 1: to do what Alito is demanding that they do. He
21:08
Speaker 1: has no idea how complicated it is to come up
21:11
Speaker 1: with a specific limit for every single pollutant that's in
21:14
Speaker 1: a wastewater discharge. Particularly where you're talking about cities.
21:18
Speaker 4: You know, each.
21:18
Speaker 1: City has a different way of managing.
21:20
Speaker 4: The waste that comes through.
21:22
Speaker 1: I mean, some cities have streets sweeping, right, some cities don't.
21:26
Speaker 1: So if something's on the street, think about what's on
21:28
Speaker 1: the street of an average American city, right, and it's
21:31
Speaker 1: going into the same system it's supposed to be treating sewage,
21:35
Speaker 1: and then it's going directly.
21:36
Speaker 4: Into the water.
21:37
Speaker 1: Are you kidding me? You think that's a simple thing
21:40
Speaker 1: to do. If EPA could have done that, it would
21:43
Speaker 1: have done that. I can remember sitting in meetings talking
21:46
Speaker 1: about the difficulty of enforcing standards that are vague, that
21:51
Speaker 1: are imprecise, and how difficult it is, you know, to
21:55
Speaker 1: convince a court that somebody's in violation of something when
21:58
Speaker 1: they don't know what the something is. So there's all
22:01
Speaker 1: kinds of discussion that goes on in the agency about
22:05
Speaker 1: how do you write permits so that people will know
22:09
Speaker 1: how to comply so we don't have to enforce them.
22:13
Speaker 1: We don't have the staff. There are tens of thousands
22:17
Speaker 1: of these permits that have to be issued every year.
22:20
Speaker 1: There's no way that you can write a permit and
22:24
Speaker 1: enforce it unless you have done the very best you
22:26
Speaker 1: can to be as specific as you can. So what
22:30
Speaker 1: he glibly says, all all EBA has to do is
22:33
Speaker 1: to do his job. He doesn't know what he's talking about.
22:36
Speaker 2: The Supreme Court has rained in pollution control efforts. What
22:41
Speaker 2: does this decision indicate?
22:43
Speaker 1: Yeah, it indicates that this court, at least the conservative
22:48
Speaker 1: majority of this court, is outright hostile to environmental law
22:54
Speaker 1: and regulation. That's the only way I can read what's
22:57
Speaker 1: going on. Not only do they not want to defer
23:00
Speaker 1: to the agency, they want to become the agency. They
23:06
Speaker 1: want to dictate to the agency how to do their job,
23:10
Speaker 1: as if they knew how to do that job. It's
23:13
Speaker 1: at the Congress to decide how agencies should do their job.
23:18
Speaker 1: And we know if Congress is unhappy with the way
23:21
Speaker 1: EPA or any other agency is doing his job, it
23:24
Speaker 1: has plenty of opportunity to step in and correct it
23:28
Speaker 1: and punish the agency if it needs, if it feels
23:30
Speaker 1: like it needs to do that, or hurt them through
23:32
Speaker 1: the budget process, you know, demand that they do things
23:36
Speaker 1: a certain way. That's what Congress is there to do.
23:39
Speaker 1: It's not up to the Court to decide how EPA
23:41
Speaker 1: should do its job.
23:42
Speaker 4: That's what's going on here, all right, Stay.
23:44
Speaker 2: With me, pat coming up next. Today, the Justice has
23:47
Speaker 2: confronted the question of what to do with the growing
23:50
Speaker 2: pile of nuclear waste. This is bloomberg at oral arguments. Today,
23:56
Speaker 2: the Supreme Court confronted the national headache of what to
23:59
Speaker 2: do the growing pile of nuclear waste. The Justice is
24:03
Speaker 2: wrestled with whether to restart plans to temporarily store nuclear
24:08
Speaker 2: waste at sites in rural Texas and New Mexico. The
24:12
Speaker 2: justices appeared divided over whether Texas and companies that own
24:16
Speaker 2: land in the oil rich Permium Basin had the right
24:19
Speaker 2: to challenge a federal plan to let as much as
24:22
Speaker 2: forty thousand tons of highly radioactive waste be temporarily stored
24:28
Speaker 2: at a privately owned off site facility. I've been talking
24:32
Speaker 2: to environmental law expert Pat Parento, a professor at the
24:35
Speaker 2: Vermont Law and Graduate School. Right now, where does the
24:41
Speaker 2: US store its nuclear waste?
24:44
Speaker 4: It doesn't, is the answer.
24:47
Speaker 1: All of the nuclear waste at nuclear power plants. Now
24:51
Speaker 1: this is in contrast to, of course, weapons grade nuclear waste.
24:54
Speaker 4: That's a different issue.
24:55
Speaker 1: But the nuclear waste that's generated by nuclear power plants
24:59
Speaker 1: is all sitting at the nuclear power plants all over
25:03
Speaker 1: the country. They are stored either in casts, concrete casts,
25:08
Speaker 1: or in most cases in underground vessels that have water.
25:13
Speaker 1: You better hope it has water, because you know, the
25:16
Speaker 1: half life of this nuclear waste is measured in hundreds
25:19
Speaker 1: or thousands of years. So you've got to maintain the
25:23
Speaker 1: integrity of these containment vessels and keep them cool enough
25:27
Speaker 1: because of course, you know, nuclear waste is very hot
25:31
Speaker 1: and it likes to get out of confinement. But that's
25:35
Speaker 1: the way we are quote managing nuclear waste. It's at
25:38
Speaker 1: every individual power plant. The proposal was, of course, to
25:43
Speaker 1: build a national repository at Yucca Mountain in Utah, and
25:49
Speaker 1: we all know what happened. To that. It's never happened.
25:51
Speaker 1: As Gorss put it in the oral argument today, it's
25:54
Speaker 1: just a hole in the ground. And so now they're
25:57
Speaker 1: talking about building a quote interim story facility, one in
26:01
Speaker 1: Texas and one in New Mexico and ship all of
26:04
Speaker 1: this waste by rail or perhaps truck, God forbid, across
26:09
Speaker 1: the country from all of these nuclear power plants to
26:12
Speaker 1: this location in Texas where it's supposed to be temporary.
26:16
Speaker 4: Well, we know what will happen if.
26:18
Speaker 1: They actually put the waste into this facility. This is
26:21
Speaker 1: a private facility, by the way, it's not a governmental entity,
26:24
Speaker 1: which what yucka mountain would be. We know that once
26:27
Speaker 1: it gets there, it's not leaving. And Alito actually raised
26:29
Speaker 1: that point today in the oral argument. So that's the
26:32
Speaker 1: nature of this problem. It's a fiendishly complicated problem. It's
26:36
Speaker 1: one we haven't been able to solve. It's one that
26:38
Speaker 1: you have to wonder whether we'll ever be able to solve.
26:42
Speaker 2: There were two questions at issue in the case. One
26:46
Speaker 2: was whether the Nuclear Regulatory Commission has the power to
26:50
Speaker 2: license such a temporary storage site. And as you mentioned,
26:54
Speaker 2: several of the justices were more than dubious that this
26:57
Speaker 2: would be temporary. Where do you think that justices stood
27:01
Speaker 2: on that question?
27:03
Speaker 1: Looked like it was split.
27:05
Speaker 4: It's always hard to read.
27:07
Speaker 1: But you know, this is one of those weird issues
27:09
Speaker 1: where it's not it's not EPA, it's the Nuclear Regulatory Commission.
27:13
Speaker 1: You can hardly say that the Nuclear Regulatory Commission is
27:16
Speaker 1: hostile to industry. So it's not really one of those
27:20
Speaker 1: industry versus the regulatory body so much as it's the
27:25
Speaker 1: interests around the location of this proposed facility in Texas, which,
27:31
Speaker 1: guess what, it happens to be in the middle of
27:34
Speaker 1: the Permian Basin, one of the largest oil and gas
27:38
Speaker 1: deposits in the country. So the opposition to this facility
27:42
Speaker 1: ain't coming from the environmentalists, although there may be some
27:45
Speaker 1: environmental concerns about it. I'm sure there are, But the
27:49
Speaker 1: major challenge is coming from the Governor Abbott of Texas.
27:53
Speaker 1: Why because industries don't want a nuclear facility in the
27:56
Speaker 1: middle of their oil and gas operations it might impen
28:00
Speaker 1: on what they're producing.
28:01
Speaker 2: I mean, does any state want a nuclear you know,
28:05
Speaker 2: storage site in the state.
28:07
Speaker 4: That's a hard one. Apparently not.
28:10
Speaker 1: Although New Mexico has not been entirely clear about that.
28:14
Speaker 1: They're certainly concerned about the nature of the facility that's
28:18
Speaker 1: being proposed at Holltech is the name of it, And
28:22
Speaker 1: there's a lot of opposition from tribes and from what
28:26
Speaker 1: you would call environmental justice communities because they're saying, hey,
28:30
Speaker 1: if you think this stuff isn't safe enough where you
28:33
Speaker 1: have it, now, why are you bringing it to us?
28:36
Speaker 4: Right?
28:37
Speaker 1: So, there are some legitimate questions about moving this waste
28:41
Speaker 1: around and storing it in quote interiom, facilities which are
28:45
Speaker 1: not intended to be permanent. As I say, this is
28:48
Speaker 1: talking about perpetual care with this stuff. Perpetual care. As
28:53
Speaker 1: one critic put it, it's longer than the Catholic Church
28:56
Speaker 1: has been around, right, So you know, it's no wonder
29:00
Speaker 1: that people have serious concerns about why did you pick
29:03
Speaker 1: us as the place to put all your high level
29:05
Speaker 1: radioactive waste, dangerous waste. So that's a problem.
29:10
Speaker 2: The second issue was whether Texas and the private plaintiffs
29:15
Speaker 2: can seek intervention in the federal courts because they failed
29:19
Speaker 2: to intervene at an earlier stage, and the court's liberals
29:24
Speaker 2: seemed sympathetic to that argument.
29:27
Speaker 1: Yeah, yeah, and Barrett I think would probably be of
29:31
Speaker 1: a similar mind to the three quote liberals on the court.
29:34
Speaker 1: This is a kind of a catch twenty two. Procedural
29:37
Speaker 1: issues often are right. So here's the way this gets
29:41
Speaker 1: set up. The challengers, the petitioners in the case before
29:45
Speaker 1: the Supreme Court tried to intervene in the NRC licensing
29:51
Speaker 1: and were denied intervention, and they didn't challenge that. And
29:56
Speaker 1: so now when it comes to going to court to
30:00
Speaker 1: challenge the license that NRC issued, there's a.
30:04
Speaker 4: Federal statute that says if.
30:06
Speaker 1: You didn't object, if you didn't intervene, you can't challenge
30:11
Speaker 1: the license. That's where the catch twenty two comes in.
30:14
Speaker 4: But it's certainly.
30:15
Speaker 1: True that if you didn't intervene, you can't challenge the license,
30:21
Speaker 1: and if you were denied intervention, as they were, your
30:24
Speaker 1: remedy should have been challenge. The denial of intervention. Seems
30:29
Speaker 1: to me that unless the more conservative members of the
30:33
Speaker 1: Court feel that somehow the opponents of this facility align
30:39
Speaker 1: more with their ideological view of the world, unless they
30:42
Speaker 1: see the case that way, I think they're going to
30:45
Speaker 1: agree that you're out of luck.
30:47
Speaker 4: Challengers.
30:48
Speaker 1: You didn't intervene, you weren't able to intervene. You didn't
30:52
Speaker 1: challenge that you're sool in this case.
30:56
Speaker 2: What's interesting about this case is that the administration is
31:01
Speaker 2: staying on the side that the Biden administration took in
31:05
Speaker 2: support of the Nuclear Regulatory Commission and against Texas, and
31:10
Speaker 2: Texas Governor Greg Abbott is a big ally of Trump's.
31:14
Speaker 4: Odd dead fellows for sure.
31:16
Speaker 1: This is the dilemma of nuclear power and nuclear waste.
31:21
Speaker 4: What to do with it?
31:22
Speaker 1: Nobody wants it, but leaving it where it is. Most
31:26
Speaker 1: of these plants have been shut down in my home
31:29
Speaker 1: state of Vermont. Vermont Yankee has been shut down now
31:31
Speaker 1: for almost ten years, Connecticut Yankee shut down, Main Yankee shutdown.
31:36
Speaker 1: You know, nuclear power plants have been shutting down left
31:38
Speaker 1: and right because natural gas has you know, out competed
31:42
Speaker 1: them in terms of the costs. So what are you
31:45
Speaker 1: going to do when you don't have a national repository,
31:49
Speaker 1: a permanent solution, and you have all of these different
31:53
Speaker 1: facilities around the country that have been shut down. I mean,
31:57
Speaker 1: it is a bad situation. So that's why Biden sided
32:00
Speaker 1: with the NRC in saying, we need a better solution
32:04
Speaker 1: than we have Until we find a permanent one. If
32:07
Speaker 1: we ever do we need a better way of managing
32:10
Speaker 1: this waste than what we're currently doing. That's the best
32:13
Speaker 1: way you can understand this situation. There's no good answer
32:16
Speaker 1: to this. You know, there were warnings about this. I
32:19
Speaker 1: can remember when I first went to George Washington Law
32:22
Speaker 1: School to get my LLM and environmental law. I took
32:25
Speaker 1: a course from James Ramy, who was chair of the
32:27
Speaker 1: Atomic Energy Commission, who told me the nuclear waste.
32:31
Speaker 4: Problem was a PR.
32:32
Speaker 1: Problem, wasn't a technical problem at all.
32:35
Speaker 4: You know.
32:35
Speaker 1: That's I hate to say it, but that's now forty
32:37
Speaker 1: five years ago. Okay, Well, it isn't a PR problem.
32:40
Speaker 1: It's an impracticable problem that we haven't figured out how
32:43
Speaker 1: to solve.
32:44
Speaker 2: So pat if the court turns them away on this
32:48
Speaker 2: procedural ground, is that the end of the question, then
32:53
Speaker 2: I'm not sure.
32:53
Speaker 4: I'm not sure.
32:54
Speaker 1: You know, as Yogi Berra said, it ain't over.
32:56
Speaker 4: Until it's over.
32:57
Speaker 1: There's probably some other ways of challenging you know, what's
33:02
Speaker 1: gonna happen with this facility. There may be ways of challenging,
33:05
Speaker 1: how are you going to move this waste across the
33:07
Speaker 1: country safely? And when it gets there, how exactly are
33:12
Speaker 1: you going to unload and place it safely into containment.
33:16
Speaker 1: There's probably going to be other challenges, but I can't
33:20
Speaker 1: predict either what they are or how successful they'll be.
33:23
Speaker 2: It's probably a long way to go before this facility
33:26
Speaker 2: gets authorization. If ever, Thanks so much, Pat. As always,
33:30
Speaker 2: that's Professor Pat Parento of the Vermont Law and Graduate School.
33:35
Speaker 2: And that's it for this edition of The Bloomberg Law Show.
33:38
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33:40
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