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San Francisco Takes on the EPA & 2024 Election in Court · Bloomberg Law

0:03
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
0:10
Speaker 2: The liberal city of San Francisco found itself in an
0:14
Speaker 2: unusual position at the Supreme Court this week, taking on
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Speaker 2: the Environmental Protection Agency over sewage discharges into the Pacific
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Speaker 2: Ocean with a ten billion dollar fine on the line.
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Speaker 2: The city's attorney, Tara Steely, argued that the regulations were
0:30
Speaker 2: too vague.
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Speaker 3: They might as well have said, do not violate the
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Speaker 3: Clean Water Act. It doesn't tell us anything.
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Speaker 2: But the liberal justice is pushed back on San Francisco's arguments.
0:41
Speaker 2: Here are Justices Elena Kagan and Sonya So to Mayor.
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Speaker 4: It's prescribing that you have to meet water quality standards, Like,
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Speaker 4: how more clearly could you meet the statutory language than that.
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Speaker 5: What they're asking you is to become responsible for doing
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Speaker 5: what's necessary.
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Speaker 2: The ideological divide was apparent, with conservative justices expressing concerns
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Speaker 2: about the fairness of the city facing billions in fines
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Speaker 2: without knowing what its obligations are under a vague permit.
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Speaker 2: Just as Brett Cavanaugh challenged the EPA's attorney, Frederick lew.
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Speaker 4: You're suing San Francisco separately for a lot of money
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Speaker 4: based on a standard that they had no idea. You know,
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Speaker 4: that's the theory. That's the theory in your position, Your
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Speaker 4: position would allow that.
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Speaker 5: I don't. Yes, I mean the base I complaint is
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Speaker 5: exhibit A for what you said is not going to
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Speaker 5: be true.
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Speaker 2: Joining me is former US Solicitor General Gregory Garr, a
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Speaker 2: partner at Latham and Watkins. Greig tell us about the
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Speaker 2: city's argument here.
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Speaker 6: So, the City of San Francisco is concerned about the
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Speaker 6: lack of fair notice that they have in terms of
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Speaker 6: how to comply with the Clean Water Act as to
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Speaker 6: the sewage discharge that's going into the Pacific Ocean. And
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Speaker 6: their argument is that the Clean Water Act obligates the
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Speaker 6: EPA to set specific effluent limitations on the amount of
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Speaker 6: pollutants coming out of point sources discharges like the pipes
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Speaker 6: going into the ocean, and that instead what the EPA
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Speaker 6: has done here is just issued these vague water quality standards.
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Speaker 6: You have to be sure that the water is a
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Speaker 6: particular color where the sewage is coming out, or you know,
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Speaker 6: it meets other criteria. And the city's argument is that, well,
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Speaker 6: they don't know how to meet those criteria. There's other
2:37
Speaker 6: sources coming in, who's responsible for what? And you know,
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Speaker 6: all this is against the backtop of a suit brought
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Speaker 6: by the EPA in which they're seeking, according to the City,
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Speaker 6: literally ten billion dollars in penalties. So the city feels
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Speaker 6: as though they lacked the fair notice that they were
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Speaker 6: entitled to under the Act up front in terms of
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Speaker 6: what discharges could go into the ocean.
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Speaker 7: Did it seem like.
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Speaker 2: The three liberal justices were pushing back on the city's argument?
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Speaker 6: Definitely. Justice Kagan, Justice Sodamor, and Justice Jackson all leaned
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Speaker 6: in hard against the city on their arguments, and they
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Speaker 6: took a number of different tacks. Most importantly, I think
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Speaker 6: they really wanted to focus the city on the text
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Speaker 6: of the Act and put the city on its heels
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Speaker 6: in terms of identifying a provision of the Act that
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Speaker 6: stripped EPA of the authority to issue these sorts of
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Speaker 6: broader water quality standards. And Justice Jackson in particular went
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Speaker 6: into the language in the Act which says that the
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Speaker 6: EPA could adopt quote any more stringent limitations end quote
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Speaker 6: and argued that, you know, the city was wrong in
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Speaker 6: saying that the limitations were limited to effluent limitations coming out,
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Speaker 6: but justices also had hard questions for the cities about
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Speaker 6: the environmental impact potential environmental impacts of the city's position,
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Speaker 6: which at times got pretty in terms of talking about
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Speaker 6: floating toilet paper and the like. But the city definitely
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Speaker 6: fased a tough crowd from the more liberal end of.
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Speaker 2: The court, and the EPA's attorney faced a tough crowd
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Speaker 2: from the more conservative justices. Tell us about his argument.
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Speaker 6: So his argument was that number one, that the statute
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Speaker 6: did confer this more broader authority on EPA, and that
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Speaker 6: it could be exercise in particular instances, more limited circumstances,
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Speaker 6: and that here he claimed that the problem really was
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Speaker 6: one of San Francisco's own creation, and that he claimed
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Speaker 6: that EPA had asked for specific data from the city
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Speaker 6: about its discharges and the like, and the city never
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Speaker 6: provided it, and so according to the EPA attorney, they
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Speaker 6: had no choice but to issue these more general water
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Speaker 6: quality standards. And you know, really, one of the more
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Speaker 6: interesting dynamics of this oral argument is this was the
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Speaker 6: City of San Francisco, one of the more progressive jurisdictions
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Speaker 6: in the country, facing off again once the Biden administration EPA,
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Speaker 6: and it was clear that there was no love loss
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Speaker 6: between them, at least as to this particular issue.
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Speaker 7: Yeah, well, this is a case where the city's Board
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Speaker 7: of Supervisors voted eight to two last week to urge
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Speaker 7: the city officials to resolve the suit quickly, there being
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Speaker 7: a concern that a Supreme Court ruling in the city's
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Speaker 7: favor could have sweeping implications for curtailing water pollution definitely.
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Speaker 6: And it's unclear how far the court would go even
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Speaker 6: if it ruled for the city in this case. You know,
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Speaker 6: there were justices sort of probing more narrow rulings, and
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Speaker 6: I think even if the Court ruled in favor of
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Speaker 6: the city, it probably would, you know, try to limit
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Speaker 6: the reach of its ruling. But you know, the basic
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Speaker 6: question on the table is whether EPA has the authority
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Speaker 6: to issue these broader water quality standards, which is something
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Speaker 6: that is the Chief Justice pointed out during the oral
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Speaker 6: argument that you know, this is what the prior regime did.
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Speaker 6: It issued these general water quality standards instead of specific
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Speaker 6: discharge limitations. And in his view, and this is what
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Speaker 6: the city argued that the Clean Water Act was actually
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Speaker 6: enacted in part to replace that regime. With one which
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Speaker 6: gave the dischargers more notice upfront in terms of the
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Speaker 6: specific limitations that were permissible.
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Speaker 2: And did it seem just as the liberals were taking
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Speaker 2: issue with the city, that the conservatives were taking issue
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Speaker 2: with the EPA.
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Speaker 6: Well, there was a group of them. There was the
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Speaker 6: Chief Justice, Justice Kavanaugh. Justice Corsich pushed back the hardest,
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Speaker 6: I think, and the main concern that sort of unified
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Speaker 6: them was the lack of fair notice to the city
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Speaker 6: and other dischargers in this situation. Where As I mentioned earlier,
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Speaker 6: you know, potentially these jurisdictions are on the hook for
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Speaker 6: significant penalties in this case, you know, literally billions of
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Speaker 6: dollars according to the city, and they don't know exactly
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Speaker 6: The city argues, and the Conservatives sort of picked up
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Speaker 6: on how to complet why with the Clean Water Act
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Speaker 6: in this instance, particularly where there are multiple discharges going
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Speaker 6: into the same place, who's responsible for what in terms
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Speaker 6: of figuring out whether or not the water quality standard
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Speaker 6: is met. But there was some uncertainty at least in
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Speaker 6: terms of where the other justices were. Justice Barrett, who
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Speaker 6: actually joined the more liberal justices in an environmental case
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Speaker 6: last term, Ohio versus EPA, you know, didn't join the
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Speaker 6: stronger attack by the other conservative justices and seemed to
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Speaker 6: be probing a narrower angle and dealing with these challenges
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Speaker 6: under the arbitrary and capricious doctrine. Justice Solito picked up
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Speaker 6: a little bit on the government's argument that in this case,
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Speaker 6: the problem was that San Francisco hadn't provided adequate data
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Speaker 6: to the EPA, leaving it with the predicament that it
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Speaker 6: had to issue these more general standards, and Thomas definitely
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Speaker 6: had some tough questions for the city, although his position
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Speaker 6: was a little bit less clear. So, you know, San
7:57
Speaker 6: Francisco coming out of the argument, I think should feel
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Speaker 6: good about its position, but it's not over yet.
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Speaker 7: Are other cities in the same position as San Francisco
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Speaker 7: have the same problems?
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Speaker 6: So I think that the use of general Walder quality
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Speaker 6: standards is definitely not the norm. But one thing that
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Speaker 6: came up during the oral argument in response to questioning
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Speaker 6: from Justice Kavanaugh was that there was many anikas briefs
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Speaker 6: filed Friends of the Court, from businesses, municipalities, and the
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Speaker 6: like who had serious concerns and reservations and problems with
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Speaker 6: the EPA's approach here and talked about the dangers and
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Speaker 6: lack of fair notice with this sort of more general
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Speaker 6: water quality standard regime, and that was something that resonated
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Speaker 6: with Justice Kavanaugh at least, and probably some of the
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Speaker 6: other justices as well.
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Speaker 2: This is the first case to grapple with federal agency
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Speaker 2: power since Lowe or Bright was decided last June. That's
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Speaker 2: the case that overturned Chevron deference. You hear much about
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Speaker 2: Chevron defference in these oral arguments.
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Speaker 6: No, not a word. EPA certainly didn't ask for it,
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Speaker 6: and you know, it was clear that this is going
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Speaker 6: to come down to what Congress actually said in the
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Speaker 6: statute and the Court's best interpretation of that, which, of
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Speaker 6: course is the way it works after Loperbright, and really
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Speaker 6: the way has worked at the Supreme Court for many
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Speaker 6: years even before Loperbright.
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Speaker 2: Do you think that we're just not going to hear
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Speaker 2: about Chevron difference in future arguments at all or about
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Speaker 2: that concept.
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Speaker 6: We're definitely not going to hear about Chevron difference. I
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Speaker 6: think the more interesting question is will we hear about
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Speaker 6: other types of difference, so called get more difference? You know,
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Speaker 6: how aggressive will the government be in trying to claim
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Speaker 6: some type of difference in other cases and try to
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Speaker 6: push back a little bit. And I think that that'll
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Speaker 6: be an interesting trend to follow on the court this
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Speaker 6: term and beyond.
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Speaker 2: The EPA has faced a string of losses at the
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Speaker 2: Supreme Court in recent years, for example, with the Court
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Speaker 2: curbing its ability to reduce greenhouse gases and to protect wetlands.
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Speaker 2: Does it seem like in some respect it's going to
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Speaker 2: lose in this case as well, whether it's broad or limited.
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Speaker 6: I don't think that that's a certainty at this point.
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Speaker 6: I mean, one of the other questions that came up
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Speaker 6: during the oral argument was whether or not there were
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Speaker 6: some flaws with this case. And maybe the court's just
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Speaker 6: not decided altogether. But you know, I think you're going
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Speaker 6: to feel better about the oral argument coming out of
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Speaker 6: it if you're San Francisco then EPA and I think
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Speaker 6: you know, EPA and the government more generally has been
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Speaker 6: sort of behind the eight ball and these administrative challenge cases,
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Speaker 6: and you know, EPA sort of finds itself in a
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Speaker 6: particularly difficult position when you combined aggressive enforcement of its
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Speaker 6: environmental priorities with broader statutory provisions, which is the area
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Speaker 6: where the Supreme Court has been particularly adamant in demanding
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Speaker 6: the the agency point to more specific authority in the
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Speaker 6: Statute for what it's doing.
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Speaker 2: Thanks so much for coming on again, Greg and sharing
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Speaker 2: those insights with us. That's former US Solicitor General Gregory
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Speaker 2: garr of Latham and Watkins coming up next on The
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Speaker 2: Bloomberg Lawn Show. More than one hundred and sixty five
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Speaker 2: lawsuits filed across the country are already shaping the contours
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Speaker 2: of the presidential election, and more than half are in
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Speaker 2: the seven states critical for an electoral college victory. I'm
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Speaker 2: June Grosso and you're listening to Bloomberg.
11:37
Speaker 3: Election day is in nineteen days.
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Speaker 2: On Thursday, Vice President Kamala Harris was touting early voting
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Speaker 2: in Wisconsin.
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Speaker 3: Election day is in nineteen days and here in Wisconsin,
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Speaker 3: early voting starts next Tuesday, October twenty.
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Speaker 2: Second, and a record number of voters turned out to
11:56
Speaker 2: vote early on the first day in North Carolina and George,
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Speaker 2: where former President Donald Trump was campaigning on Tuesday.
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Speaker 5: Early mail in voting in your state is now under way,
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Speaker 5: and early in person is under it.
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Speaker 7: But I'll tell you what I'm hearing very good things.
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Speaker 2: As the candidate's battle for votes on a campaign trail,
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Speaker 2: another battle is going on in courtrooms across the country,
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Speaker 2: where judges have already started shaping the contours of the
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Speaker 2: presidential election. They're deciding lawsuits challenging everything from who can
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Speaker 2: vote and how they cast their ballots, to which votes
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Speaker 2: count and how the winner is decided. A Bloomberg analysis
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Speaker 2: has identified at least one hundred and sixty five election
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Speaker 2: lawsuits filed in thirty seven states in the last two years,
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Speaker 2: and more than half of those cases have been filed
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Speaker 2: in a seven states critical for an electoral college victory.
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Speaker 2: Joining me is Bloomberg Senior legal reporter Zoe Tillman, who's
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Speaker 2: crunched the numbers. Zoe, did you look at which side
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Speaker 2: is filing more suits? I know that the Republican National
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Speaker 2: Committee said it had launched an unprecedented legal strategy.
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Speaker 8: We did, and you know, it's interesting. I think the
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Speaker 8: numbers showed that Republicans and Conservatives have been more active
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Speaker 8: in court, you know, more than half, but not overwhelmingly so,
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Speaker 8: and that Democrats and left leaning groups have also been
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Speaker 8: quite active ahead of election day, you know, more typically
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Speaker 8: going in to challenge state laws or practices that they
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Speaker 8: contend are putting up illegal barriers to voting, whereas Republicans
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Speaker 8: and Conservatives have been going into states that they feel
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Speaker 8: a bit too lax on that front.
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Speaker 2: The election is a little over two weeks out and
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Speaker 2: there are new cases still being filed.
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Speaker 8: There are you know, as issues come up on the ground,
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Speaker 8: we're seeing lawyers at the ready to bring litigation.
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Speaker 5: You know.
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Speaker 8: Interestingly, we've seen the Justice Department getting involved. That's sort
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Speaker 8: of the final hour where Alabama and Virginia have announced
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Speaker 8: plans to purge names from their voter wiles based on
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Speaker 8: suspicions that these are not US citizens. And so we've
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Speaker 8: seen not only civil rights groups but the Justice Department
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Speaker 8: filing suit in recent weeks trying to stop that from happening. So,
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Speaker 8: you know, I think the later it gets, judges are
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Speaker 8: going to be wary of making any changes that aren't
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Speaker 8: directly related to a late breaking event. You know, if
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Speaker 8: you're going to court to sue over a lot that's
14:21
Speaker 8: been on the books for two years, I think the
14:22
Speaker 8: odds of getting jugital intervention now are slim, but I
14:27
Speaker 8: think we'll see cases probably being stiled up to the
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Speaker 8: last minute, and then a whole new surge of cases
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Speaker 8: related to what actually happens on election day.
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Speaker 2: In your story, you've divided up the cases into different categories,
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Speaker 2: and nearly a third of the cases focus on who
14:44
Speaker 2: should be allowed to vote.
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Speaker 8: That's where we've seen more of a concentration of activity
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Speaker 8: from Republicans and conservatives. One of the narratives that's emerged
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Speaker 8: this cycle is this idea that states are failing to
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Speaker 8: do enough to purge people from their role who are ineligible,
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Speaker 8: either because they're not US citizens, or they've moved away,
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Speaker 8: or they've passed away. You know, I think it's again
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Speaker 8: worth noting that for things like non US citizen voting,
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Speaker 8: the research has shown that that's rare, very uncommon, but
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Speaker 8: it's sort of a narrative that's cropping up in these cases.
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Speaker 8: And then on the flip side of that, we've seen
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Speaker 8: democrats and left leaning groups going to court to try
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Speaker 8: to defend who is on the roles now or expand eligibility.
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Speaker 8: An example of that would be efforts to re enfranchise
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Speaker 8: people who have convictions on their record. And actually there
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Speaker 8: was a big decision out of the Nebraska Supreme Court
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Speaker 8: ruling that a state law making it possible for people
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Speaker 8: with past felny convictions to vote, that that needs to
15:47
Speaker 8: be enforced.
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Speaker 2: And we should just mention states have different laws about
15:51
Speaker 2: whether people with past felony convictions can vote.
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Speaker 8: That's right, And I think it's sort of a broader
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Speaker 8: theme of this, which is that US elections are dispatchwork
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Speaker 8: of different state rules and laws and practices when it
16:03
Speaker 8: comes to election. So your ability to put your absentee
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Speaker 8: ballot in a drop box in one state might not
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Speaker 8: be the same process as in another. The laws are different,
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Speaker 8: state constitutions are different. So that's always another theme that
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Speaker 8: we see when we look at for this broad landscape
16:20
Speaker 8: of voting location.
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Speaker 2: So now let's go to how Americans vote, and you
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Speaker 2: mentioned ballot drop boxes. Republicans have consistently argued against ballot
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Speaker 2: drop boxes, saying it leads to fraud. I mean, has
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Speaker 2: there been proof that there's fraud from ballot drop boxes?
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Speaker 8: Certainly not in any kind of widespread way. You know,
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Speaker 8: I think instances may crop up of problems in a
16:45
Speaker 8: given place at a given time, but not in the
16:48
Speaker 8: sense that it's like proven to be a source of fraud.
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Speaker 8: And we've heard from bipartisan state election officials that this
16:55
Speaker 8: is a time tested, secure way to vote. But you know,
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Speaker 8: the pandemic resulted in just an explosion of voting by
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Speaker 8: mail and voting absentee and states have tried to respond
17:08
Speaker 8: to that, and I think in the past four years
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Speaker 8: tried to clarify the rules, but there have still been
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Speaker 8: sites over It's not so much can there be drop boxes,
17:17
Speaker 8: but it might be what kind of monitoring does there
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Speaker 8: need to be? Does there need to be a physical
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Speaker 8: a person sitting there watching when people put their ballots in?
17:26
Speaker 8: Can there be cameras? Where can they be placed? They
17:29
Speaker 8: need to be had, an official government building, all sorts
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Speaker 8: of minutia. But that make a difference.
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Speaker 2: Wisconsin, which is of course one of those seven swing states.
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Speaker 2: What's happening there over the ballot drop boxes?
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Speaker 8: Ian Wisconsin was a really fascinating example where a few
17:45
Speaker 8: years ago the state Supreme Court had ruled that drop
17:49
Speaker 8: boxes were not allowed under the state's constitution and state laws,
17:53
Speaker 8: and then there was an election, the ideological balance of
17:57
Speaker 8: the state Supreme Court changed, where it went from sort
18:00
Speaker 8: of more conservatives to the more left leaning majority. Another
18:04
Speaker 8: case came up saying, you know, we think that that
18:06
Speaker 8: earlier decision was wrong, and asking the court to take
18:10
Speaker 8: another look. And the court then reversed itself and said,
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Speaker 8: we agree. We think that the previous majority got it
18:17
Speaker 8: wrong and dropboxes were in fact permitted in the state.
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Speaker 8: So that's now the status quo and Wisconsin heading into
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Speaker 8: the selection cycle.
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Speaker 2: Republicans are often trying to make it harder to vote
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Speaker 2: by pushing things like voter IDs. Tell us about the
18:33
Speaker 2: recent case in North Carolina.
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Speaker 8: The R and C went to court to challenge the
18:39
Speaker 8: ability of students and employees at the University of North
18:42
Speaker 8: Carolina Chapel Hill, who now have digital ID cards on
18:46
Speaker 8: their phones, basically to say that it needs to be
18:49
Speaker 8: a physical hard copy of an ID. A lower court
18:52
Speaker 8: judge disagreed with the rn C and said that the
18:56
Speaker 8: digital ideas would be fine. There was a round of
18:59
Speaker 8: snooz coverage of that headlines saying this would be permitted,
19:02
Speaker 8: and then a week later the Court of Appeal stepped
19:04
Speaker 8: in and said no and reversed. And you know, I
19:07
Speaker 8: think that was a good illustration of how much power
19:10
Speaker 8: courts have not just to decide how people vote and
19:14
Speaker 8: sort of what the rules are, but also how much
19:17
Speaker 8: you know, last minute preparation and changes election officials have
19:21
Speaker 8: to be prepared to contend with as these cases get
19:24
Speaker 8: decided in the final weeks, when election offices have been
19:28
Speaker 8: preparing for months or years for an election to take place.
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Speaker 2: And also how confusing for voters who think they're going
19:33
Speaker 2: to go to the polls with their student ideas and
19:36
Speaker 2: then find that they can't right.
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Speaker 8: And this is always that big concern among judges as
19:40
Speaker 8: they handle cases, especially in the final weeks and months,
19:44
Speaker 8: and the US Supreme Court has urged federal judges in
19:47
Speaker 8: particular to be quite wary of intervening at the last minute.
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Speaker 8: You know, the risk of voter confusion as well as
19:54
Speaker 8: chaos among the people running the elections. But courts have
19:58
Speaker 8: had to grapple with if you know something is illegal
20:01
Speaker 8: or unconstitutional, how do you weigh not acting against the
20:06
Speaker 8: considerations of confusion and chaos.
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Speaker 2: Let's turn out to which ballots count, And of course
20:12
Speaker 2: we know that the vote count is not final on
20:15
Speaker 2: election night, so for example, when voters make mistakes on
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Speaker 2: their absentee ballots. States have different ways of dealing with it.
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Speaker 8: States have the ability to decide, you know, if you
20:29
Speaker 8: send in a ballot that doesn't quite comply with the rules.
20:31
Speaker 8: Do you get noticed, Do you have an opportunity to
20:34
Speaker 8: fix the issue? Can you instead come to the polls
20:37
Speaker 8: on election day to cast a provisional ballot? And that's
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Speaker 8: a fight that we've seen play out this cycle, especially
20:43
Speaker 8: in Pennsylvania, which has laws saying basically, if you send
20:48
Speaker 8: in a mail ballot and you don't put a date
20:50
Speaker 8: on the envelope, or you put a date that is
20:52
Speaker 8: clearly wrong, you know, you write your birthday, that that
20:55
Speaker 8: ballot isn't counted even if it arrives by election day.
20:58
Speaker 8: And there's been a lot of over that, including the
21:01
Speaker 8: federal level, which is still pending. But you know, there
21:04
Speaker 8: was another round of state court litigation. We saw lower
21:07
Speaker 8: court blocking that law from being enforced. But then the
21:10
Speaker 8: state Supreme Court has come in in several cases and
21:13
Speaker 8: tossed those cases out, which means that for this election,
21:15
Speaker 8: at least, the expectation is that those undated or misstated
21:19
Speaker 8: ballots won't count. There's a potential for some very last
21:23
Speaker 8: minute litigation to change that, but as of now, that's
21:26
Speaker 8: the status quo. So I think again, you know, another
21:28
Speaker 8: example of these rules that on paper might seem very
21:32
Speaker 8: technical or in the weeds, but and end up affecting
21:36
Speaker 8: you know, thousands of ballots which can really make the
21:38
Speaker 8: difference in a swing state like Pennsylvania.
21:41
Speaker 2: More than half of all states except at least some
21:43
Speaker 2: absentee ballots that arrive after November fifth. So yes, probably
21:48
Speaker 2: more fights to come on that. Now we'll move to
21:50
Speaker 2: this area. How the election is finalized and certification of
21:54
Speaker 2: the vote, I mean, was never anything that was talked
21:58
Speaker 2: about before the last presidential election.
22:02
Speaker 5: That's right.
22:03
Speaker 8: It's long been considered sort of a ministerial role where
22:07
Speaker 8: you know, as long as the number of ballots that
22:09
Speaker 8: come in match in some reasonable way the number of
22:13
Speaker 8: people who are eligible to vote in that precinct, that
22:16
Speaker 8: they then move on to the next phase of things.
22:19
Speaker 8: And there are ways to challenge ballot counts after the
22:24
Speaker 8: certification process, but that was never really seen as sort
22:27
Speaker 8: of a flashpoint in this process. That changed in twenty
22:30
Speaker 8: twenty when after the election, Donald Trump and his supporters
22:35
Speaker 8: looked for ways to overturn results in states where it
22:39
Speaker 8: appeared he was set to lose, and you know, pressure
22:42
Speaker 8: campaigns on state lawmakers to intervene, and then eventually on
22:45
Speaker 8: Congress to intervene, But it really put new attention on
22:50
Speaker 8: this phase of the certification process at the county and
22:53
Speaker 8: state level as a potential pressure point and a place
22:57
Speaker 8: for supporters of one candidate or another to use their
23:01
Speaker 8: power in a way that it hadn't been used before
23:04
Speaker 8: to intercede if it looked like a preferred candidate is
23:07
Speaker 8: going to lose.
23:08
Speaker 2: And a judge decided one of these cases in Georgia
23:11
Speaker 2: on Tuesday.
23:12
Speaker 8: There's a member of the Fulton County Election Board, Julie Adams,
23:16
Speaker 8: who is Republican Trump supporter and in May had refused
23:22
Speaker 8: to certify the results of a presidential primary on the
23:25
Speaker 8: ground that she hadn't gotten all of the information that
23:28
Speaker 8: she felt she needed to confirm that the results were
23:31
Speaker 8: accurate and that the election went off as it should have,
23:34
Speaker 8: and the board overruled her. She was outvoted. But it
23:37
Speaker 8: raises question of you know what happens if a county
23:41
Speaker 8: board does vote to not certify. So Julie Adams went
23:44
Speaker 8: to court and said, I want a judge to tell
23:46
Speaker 8: me that I do have the power to do this,
23:48
Speaker 8: and this week the judge said, no, you don't, that
23:51
Speaker 8: it's a mandatory duty, and so far Julie Adams lawyers
23:54
Speaker 8: have indicated they're not going to appeal this, that they
23:57
Speaker 8: expect this to continue to be sort of a live
23:59
Speaker 8: issue with Tooey sees what other local officials do when
24:03
Speaker 8: it's time to cast the folks.
24:05
Speaker 2: We'll have to see what other decisions come down in
24:07
Speaker 2: the next few weeks that might prevent problems on election day.
24:12
Speaker 2: Thanks so much, Zoe. That's Bloomberg, Zoe Tillman. Coming up next.
24:16
Speaker 2: A truck driver wants to use the Rico Statute to
24:20
Speaker 2: sue over a failed drug test. I'm June Grosso and
24:23
Speaker 2: you're listening to Bloomberg. The Supreme Court seemed divided this
24:28
Speaker 2: week over whether a truck driver can use a federal
24:31
Speaker 2: racketeering law to sue the maker of a CBD hemp
24:35
Speaker 2: oil he says cost him his job. Rico, the Racketeer
24:39
Speaker 2: Influenced and Corrupt Organizations Act, is a federal law that
24:43
Speaker 2: was designed to fight organized crime. The question before the
24:46
Speaker 2: Court was a narrow one. Did his case satisfy Rico's
24:51
Speaker 2: requirement that his business or property had been injured? Just
24:55
Speaker 2: as Clarence Thomas questioned, the driver's lawyer isha anund.
24:59
Speaker 3: So the here is we were fired. That's the injury
25:02
Speaker 3: to our business. Now, as a measure of compensation for that,
25:06
Speaker 3: the damages we claim are an amount equal to the
25:09
Speaker 3: salary we would have made and the other economic benefits
25:12
Speaker 3: that we would have gotten had we remained employed.
25:14
Speaker 8: But medical marijuana did not fire you.
25:17
Speaker 2: The liberal justices like Elena Kagan, said a plane reading
25:21
Speaker 2: of the law would allow the driver to sue under RICO.
25:25
Speaker 2: If you're harmed when you lose a job, then you've
25:27
Speaker 2: been injured in your business, haven't you. But some of
25:31
Speaker 2: the court's conservatives, including Justice Brett Cavanaugh, expressed concern about
25:36
Speaker 2: opening the floodgates to RICO lawsuits.
25:39
Speaker 4: I think you're saying, yes, the damages from personal injuries
25:42
Speaker 4: can be characterized as injuries to business or property. Therefore
25:45
Speaker 4: you can just bring them under RICO. That would mean
25:48
Speaker 4: that every state toward personal injury suit in which you're
25:52
Speaker 4: seeking lost wages or medical expenses can be now brought
25:56
Speaker 4: under RICO and seek troubled damages.
25:59
Speaker 2: The trial judge dismissed the driver's lawsuit, saying his injury
26:03
Speaker 2: was personal and didn't fit RICO, but the Second Circuit
26:07
Speaker 2: Court of appeals reversed, and why bring a case under rico.
26:11
Speaker 2: If you win, you can get triple damages plus attorney's fees.
26:16
Speaker 2: Joining me is Brian Wolfman, a professor at Georgetown Law,
26:19
Speaker 2: tell us about the truck driver's allegations here.
26:22
Speaker 1: So what mister Horn argues is quite simple that this
26:26
Speaker 1: outfit Medical Marijuana was marketing a product They claimed it
26:30
Speaker 1: had no psychoactive effect and did not contain any THCHC,
26:36
Speaker 1: which is an active ingredient as you may know in marijuana.
26:39
Speaker 1: So mister Horn saw advertisements on the internet for Medical
26:44
Speaker 1: Marijuana's product. He himself was a truck driver who way
26:47
Speaker 1: back in twenty twelve had suffered a serious injury and
26:51
Speaker 1: had continuing back pain that he was never able to tackle.
26:54
Speaker 1: And he was still a truck driver and really wanted
26:57
Speaker 1: to do something to deal with his pain. And he said, well, look,
27:00
Speaker 1: if this has no THC in it, I'm going to
27:02
Speaker 1: give it a try. Now, why was he worried about
27:04
Speaker 1: ingesting something that had the active ingredient in marijuana, Because
27:08
Speaker 1: he's a truck driver and he is periodically screened for
27:12
Speaker 1: the possibility that he might be using unlawful drugs. So
27:16
Speaker 1: he purchases the product based on the representation made by
27:20
Speaker 1: the sellers that it contains no THC. Long behold. Mister
27:24
Speaker 1: Horn argues, apparently it did contain THCHC, and he goes
27:28
Speaker 1: through shortly thereafter a periodic screening by his employer. It
27:32
Speaker 1: detects THC in his body and he is immediately fired,
27:37
Speaker 1: And of course that's very distressing. He suffers great harm,
27:40
Speaker 1: I'm sure, both emotional and obviously financial, because this is
27:44
Speaker 1: his sole means of livelihood and he has now lost
27:48
Speaker 1: his job that can be traced to an alleged fraud
27:52
Speaker 1: committed by this company.
27:54
Speaker 2: Most people think of the Rico Statute as it was
27:58
Speaker 2: enacted in order to combat organized crime. So he sues,
28:03
Speaker 2: why is he suing under RICO.
28:05
Speaker 1: Well, he's suing under RICO because for many years now,
28:08
Speaker 1: and this goes back for decades now. Yes, RICO was
28:12
Speaker 1: an attempt both criminally and civilly to get at organized crime.
28:16
Speaker 1: It's called the Racketeer, Influence and Corrupt Organization Act. But
28:20
Speaker 1: its words, you'll cast its web far more broadly, and
28:24
Speaker 1: I think that was within the intention of Congress. And
28:27
Speaker 1: in any event, its words are much broader, and they
28:30
Speaker 1: encompass civil conspiracies where there is a predicate act, a
28:35
Speaker 1: predicate violation of law that is conducted among numerous people,
28:40
Speaker 1: a conspiracy that imposes intentional harms on individuals, and what
28:47
Speaker 1: it says, And I think I want to point to
28:49
Speaker 1: the part of the statute that said issue in this case,
28:52
Speaker 1: RICO permits any person injured in his business or property
28:57
Speaker 1: by reason of racketeering activity to bring a civil lawsuit
29:02
Speaker 1: for three times the damages he sustained. So let me
29:07
Speaker 1: focus on the keywords, any person injured in his business
29:11
Speaker 1: or property by reason of unlawful activity under this law.
29:15
Speaker 1: And so what mister Horn argues is quite simple that
29:18
Speaker 1: the economic harms resulting from the injuries he sustained are
29:24
Speaker 1: injuries to his business or property by reason of the
29:29
Speaker 1: defendants violations of RICO. And the reason we know that
29:33
Speaker 1: is because his business was his truck driving business. One's
29:38
Speaker 1: employment is one's business. So his argument is very simple.
29:42
Speaker 1: The Second Circuit Court of Appeals, which is headquartered in
29:45
Speaker 1: New York, agreed with him, and the Supreme Court took
29:48
Speaker 1: this case on because it's thought that the courts of
29:51
Speaker 1: appeals around the country had disagreed on this subject tell.
29:55
Speaker 2: Us about the argument of the defendants here medical marijuana.
30:00
Speaker 1: Argument is that this statue doesn't cover harms that have
30:04
Speaker 1: its origins in personal injuries and here because the personal
30:10
Speaker 1: injury or the first in time injury was the ingestion
30:15
Speaker 1: of this product that contained THC. Even if the ultimate
30:19
Speaker 1: harm is in part a harm to one's business or property,
30:24
Speaker 1: in this case, the business of being employed as a
30:26
Speaker 1: truck driver, it doesn't count under RICO because it has
30:31
Speaker 1: its origins and personal injuries and personal injuries arms are
30:34
Speaker 1: not covered by the statue. The problem with that, and
30:37
Speaker 1: I think this is mister Horn's argument. The problem with
30:40
Speaker 1: that is that's not what the statue says. The statue
30:43
Speaker 1: says any person injured in his business or property should
30:47
Speaker 1: recover three times its damages. And the injury here in
30:51
Speaker 1: his business again I'm repeating myself, is the injury in
30:55
Speaker 1: his employment, in fact, losing all his wages because he
30:58
Speaker 1: was fired as soon as it was discovered that he
31:01
Speaker 1: had THC in his system.
31:03
Speaker 2: Several of the Conservative justices seemed to be leaning away
31:08
Speaker 2: from the truck driver's interpretation. Here's the Chief Justice, John
31:13
Speaker 2: Roberts Council.
31:15
Speaker 5: I understood the business or property limitation as having been
31:19
Speaker 5: intended to be a significant limitation on the reach of RICO.
31:25
Speaker 5: Your friend said that your position would make every slip
31:28
Speaker 5: and fall a RICO violation. Why isn't that the case?
31:32
Speaker 2: And Justice Brett Cavanaugh also spent some time talking about
31:37
Speaker 2: the fact that there could be sort of an explosion
31:40
Speaker 2: of cases here.
31:41
Speaker 1: Yes, I mean that was a concern. Let me explain
31:44
Speaker 1: I think the counters to that position that were put
31:47
Speaker 1: forth by mister Horn's council. The first is if that's true,
31:52
Speaker 1: that is that there are more cases that could now
31:56
Speaker 1: be brought under civil rico. One answer is, this is
31:59
Speaker 1: the statute that Congress route, and if Congress wishes to
32:03
Speaker 1: narrow the statute and exclude certain violations that are said
32:08
Speaker 1: to have origins and a personal injury, like the injury
32:12
Speaker 1: from ingesting a drug product, then Congress can do so.
32:15
Speaker 1: But I think also the argument is this is not
32:18
Speaker 1: like any slip and fall, because the slip and fall,
32:21
Speaker 1: say you know, a slip and fall outside of building
32:23
Speaker 1: or at the local supermarket, just involves the negligence, for instance,
32:28
Speaker 1: of a worker at the supermarket not to clean up
32:31
Speaker 1: the floor, so they slipped and they fell. But RICO
32:34
Speaker 1: requires much more. First of all, and it requires intentionality,
32:38
Speaker 1: not just negligence. Second of all, it requires, as I
32:41
Speaker 1: said at the beginning, a predicate violation, So not simply
32:44
Speaker 1: that there was the slip and fall the negligence, but
32:47
Speaker 1: there have to be some predicate wrong. And here the
32:50
Speaker 1: predicate wrong was an alleged mail fraud to perpetrate this wrong,
32:54
Speaker 1: which is a separate federal violation that would not be
32:58
Speaker 1: true in the slip and fall situation. And there are
33:01
Speaker 1: a number others what we're referred to as guardrails on
33:04
Speaker 1: seeing this case as just a slip and fall. Let
33:07
Speaker 1: me give you one other guardrail. It's well understood that
33:10
Speaker 1: an injury in one's business or property does not include
33:14
Speaker 1: emotional harms what are known in the law as non
33:17
Speaker 1: pecuniary harms like emotional harm, pain and suffering, humiliation. All
33:23
Speaker 1: of those things would be recoverable in a typical tort
33:27
Speaker 1: action in a typical slip and fall, and in fact,
33:30
Speaker 1: in modern American tort law, much of the recoveries in
33:35
Speaker 1: a slip and fall or other kinds of personal injury cases,
33:39
Speaker 1: much of the recovery are those kinds of non pecuniary damages.
33:44
Speaker 1: They are not recoverable under Rico, So in some sense
33:49
Speaker 1: we go gives, but in other ways it takes away.
33:51
Speaker 1: So I think all those things should be taken into account.
33:54
Speaker 1: But I want to come back to the first point.
33:56
Speaker 1: If the Court rules here in favor of mister Horne,
33:59
Speaker 1: which it may well, do you know Congress is free
34:01
Speaker 1: to amend the statute to narrow in a way that
34:05
Speaker 1: it views is appropriate, or even that it views as
34:08
Speaker 1: consistent with its original intent.
34:11
Speaker 2: You obviously feel that Horn's argument is the better one here,
34:16
Speaker 2: But after listening to the oral arguments, I mean, do
34:19
Speaker 2: you think that justice is were divided or leaning towards Horn.
34:24
Speaker 1: I don't know the answer to that. It's always difficult
34:27
Speaker 1: to predict for a number of reasons. One reason can
34:31
Speaker 1: be that the judges are just truly looking to answer
34:35
Speaker 1: questions that they're not certain about, and just because they're
34:38
Speaker 1: asking a question from one angle or another doesn't necessarily
34:42
Speaker 1: meet their leaning one way or another. Sometimes a question
34:47
Speaker 1: that looks like it's coming from a place a concern
34:50
Speaker 1: is looking just for a potential way to narrow the ruling,
34:55
Speaker 1: If it doesn't necessarily mean that that Justice is planning
34:59
Speaker 1: to rule it against this party or that party. So
35:02
Speaker 1: I think it's just very hard to tell. And I
35:04
Speaker 1: think that the Court is truly I wouldn't say undecided,
35:09
Speaker 1: but truly looking for a way to fully understand this case.
35:13
Speaker 1: And I did not take anything one way or other
35:17
Speaker 1: from the questioning. And you mentioned the concerns coming from
35:21
Speaker 1: the Chief Justice or Justice Kavanaugh, and I did not
35:24
Speaker 1: take them as necessarily leaning against mister Horn, but expressing
35:29
Speaker 1: some concern over the kind of litigation a ruling in
35:34
Speaker 1: favor of mister Horn might lead to, and wondering whether
35:38
Speaker 1: there are any guard wails that might mitigate to some
35:42
Speaker 1: degree a ruling in favor of mister Horn.
35:46
Speaker 2: An interesting case of statutory interpretation. Thanks so much for
35:49
Speaker 2: being on the show. That's Professor Brian Wolfman of Georgetown Law.
35:54
Speaker 2: In other Supreme Court news this week, the Court has
35:57
Speaker 2: released the calendar for its December arguments, which will feature
36:00
Speaker 2: eight cases over six days. On December fourth, the Court
36:04
Speaker 2: will hear one of the highest profile cases of the
36:07
Speaker 2: term involving transgender rights. The justices will decide whether states
36:12
Speaker 2: can outlaw gender affirming care for minors, taking up what
36:16
Speaker 2: has become a politically polarizing issue across the country. On
36:20
Speaker 2: December second, the Court will hear a case over the
36:23
Speaker 2: Food and Drug Administration's efforts to ban flavored e cigarettes.
36:28
Speaker 2: And that's it for this edition of the Bloomberg Law Podcast.
36:31
Speaker 2: Remember you can always get the latest legal news by
36:33
Speaker 2: subscribing and listening to the show on Apple Podcasts, Spotify,
36:37
Speaker 2: and at Bloomberg dot com, slash podcast, slash Law. I'm
36:41
Speaker 2: June Grosso and this is Bloomberg