# The Supreme Court's Continued Climate Take

An episode of [Drilled](https://invisiblenetwork.ai/podcast/1439735906), 23 Aug 2022, 47 min.

Audio: https://podtrac.com/pts/redirect.mp3/tracking.swap.fm/track/SxlTEPDY7xDg35RXkASs/pdrl.fm/3e5572/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/9a7ab5ee-ce11-48ff-a544-b3ec00ea9b1e/edc14c2a-f222-48c8-b9dd-b3ec00f0cbbd/audio.mp3?utm_source=Podcast&in_playlist=7f82f371-6316-4ea6-a108-b3ec00ea9b2d

West Virginia vs. EPA was just the beginning of climate cases before the Supreme Court this year. From question the SEC's disclosures to major Clean Water challenges, there's more to come. EarthJustice's Sam Sankar and Kirti Datla join to give us a preview of what's coming up. See omnystudio.com/listener for privacy information.

## Transcript

[0:10] Speaker 1: Hello.
[0:11] Speaker 2: I'm Amy Westervelt and this is a special crossover episode
[0:16] Speaker 2: of Drilled and Damages. Today I am joined by Sam Sinkar,
[0:22] Speaker 2: Senior Vice President of Earth Justice, and Kirti dad La,
[0:26] Speaker 2: director of Strategic Legal Advocacy for Earth Justice, to talk
[0:30] Speaker 2: a little bit more about what exactly the West Virginia
[0:34] Speaker 2: versus EPA decision meant and to look ahead at some
[0:38] Speaker 2: of the big cases for climate folks to be watching
[0:41] Speaker 2: in the next Supreme Court session coming up this fall.
[0:45] Speaker 2: There's a lot to get into here, from the continued
[0:48] Speaker 2: attempt to dismantle the quote unquote administrative State, to the
[0:54] Speaker 2: way that the Clean Water Act is being targeted in
[0:57] Speaker 2: a case coming up next session, to how litigation remains
[1:01] Speaker 2: a very important tool even with the Supreme Court on fire.
[1:06] Speaker 2: We're going to get into all of that and more
[1:09] Speaker 2: coming up after this quick break.
[1:20] Speaker 1: My name is Sam Sankar. I'm the senior vice president
[1:23] Speaker 1: of Programs ED, which means I lead to our lobbying
[1:29] Speaker 1: and litigation efforts.
[1:30] Speaker 3: I'm Karite Doatla, and I'm the director at Strategic Legal
[1:35] Speaker 3: Advocacy or Justice, which in a nutshell means I kind
[1:39] Speaker 3: of keep track of the goings on in the federal courts,
[1:44] Speaker 3: especially the Supreme Court, on issues that kind of crop
[1:48] Speaker 3: up across all of our cases.
[1:49] Speaker 2: Okay, so I know that it's been a while since
[1:53] Speaker 2: the West Virginia versus EPA decision came down with a
[1:57] Speaker 2: couple of months you know, pasted it. What do you
[2:00] Speaker 2: think the implications of that decision are or will be?
[2:06] Speaker 4: Yeah, totally.
[2:07] Speaker 3: So, you know, I think your listeners are already pretty
[2:10] Speaker 3: well versed in this case. But just as a reminder,
[2:14] Speaker 3: you know, the case is ostensibly about this Obama era
[2:18] Speaker 3: regulation called the Clean Power Plant that addressed embissions from
[2:25] Speaker 3: fossil fuel fired power plants. But that regulation was sort
[2:28] Speaker 3: of a zombie regulation that had, because of the Supreme
[2:31] Speaker 3: Court issuing a stay, never got into effect, and that
[2:35] Speaker 3: was sort of kind of practically dead for all purposes.
[2:39] Speaker 4: And the Supreme Court.
[2:40] Speaker 3: Took a case that was about whether or not that
[2:43] Speaker 3: that zombie regulation was valid, largely to address something called
[2:48] Speaker 3: the major Questions doctrine, which had sort of been cobbled
[2:52] Speaker 3: together out of a couple of sentences here and there
[2:54] Speaker 3: in the Supreme Court's past cases by folks like West
[2:58] Speaker 3: Virginia and the Group of States that it was leading
[3:00] Speaker 3: in this case and the industry groups that were on
[3:03] Speaker 3: their side, and as they put it to the court,
[3:07] Speaker 3: you know, the idea is that if an a federal
[3:10] Speaker 3: agency is going to address something that has big economic
[3:13] Speaker 3: and political consequences, it needs to be able to identify
[3:17] Speaker 3: something really clear in the statute that gives it the
[3:20] Speaker 3: authority to do basically exactly what it tried to do.
[3:24] Speaker 3: And you know, it's sort of obvious just from describing
[3:28] Speaker 3: the doctor that they pitched to the court that it
[3:30] Speaker 3: is inherently deregulatory. You know, it only applies when the
[3:34] Speaker 3: government wants to do something, and the kind of tests
[3:38] Speaker 3: that it asks agencies to overcome is one that will
[3:41] Speaker 3: be hard, if not impossible, to overcome in most cases. So,
[3:46] Speaker 3: you know, they took the case to the court. The
[3:48] Speaker 3: court accepted the case, and at the end of its term,
[3:51] Speaker 3: in the last day of its term, actually issued a
[3:53] Speaker 3: decision in the case that it kind of accepts the
[3:55] Speaker 3: general premise of what West Virginia and those on its
[3:59] Speaker 3: side I'd asked the court to do, but doesn't go
[4:01] Speaker 3: all the way somewhat thankfully, So the court kind of
[4:04] Speaker 3: accepts the idea that the major questions doctrine exists. It
[4:07] Speaker 3: you know, describes it using that name for the first time,
[4:11] Speaker 3: and it says that in certain you know, unusual cases,
[4:15] Speaker 3: in certain extraordinary cases, it's going to apply this this
[4:19] Speaker 3: sort of common sense and also constitutionally based assumption that
[4:23] Speaker 3: Congress didn't mean to give agencies, you know, broad authority
[4:27] Speaker 3: to do things like reshape the market or you know,
[4:32] Speaker 3: impose a really significant regulation. So I say it did
[4:38] Speaker 3: kind of go all the way because it it does,
[4:42] Speaker 3: you know, have that limiting language there. Does the Court
[4:44] Speaker 3: does say, you know, it's not supposed to apply in
[4:47] Speaker 3: every case, But the decision is also pretty mushy in
[4:50] Speaker 3: terms of saying what it does apply and the factors
[4:53] Speaker 3: that it's going to consider. So it's a little hard
[4:57] Speaker 3: to say what the effect of the decision will be
[4:59] Speaker 3: because we don't have a lower court decision applying it yet.
[5:04] Speaker 3: But you know, I think it's safe to say that
[5:07] Speaker 3: the reason this doctrine was kind of invented and created
[5:10] Speaker 3: and taken to the Supreme Court was because it's deregulatory.
[5:14] Speaker 3: It was kind of another tool in the toolbox of
[5:17] Speaker 3: people who don't like federal regulations. And we know from
[5:23] Speaker 3: what has happened, you know, in the run up to
[5:25] Speaker 3: the decision and after it that that's exactly how it's
[5:27] Speaker 3: being used. So we know that people have kind of
[5:31] Speaker 3: been making noises, either in their comments to agencies or
[5:34] Speaker 3: in briefs before federal courts or press statements that they
[5:39] Speaker 3: think that, you know, a whole host of federal regulations
[5:42] Speaker 3: should be challenged on this basis, and that ranges from
[5:45] Speaker 3: things like the Department of Transportations fuel efficiency standards for vehicles,
[5:51] Speaker 3: the new rule that the SEC is working on related
[5:55] Speaker 3: to climate disclosures, things going all the way down to
[5:59] Speaker 3: things that seems pretty odd, major like the PA's rules
[6:03] Speaker 3: regarding overcoming tampering preventing tampering of cars to get around
[6:08] Speaker 3: promission standards.
[6:10] Speaker 4: And then don't have nothing to do with the environment.
[6:12] Speaker 3: Things like the DACA program, so that's an immigration related law.
[6:16] Speaker 3: There's childes to viasive programs related to the Major Questions doctrine.
[6:20] Speaker 4: You know, it's a like I said, it's.
[6:22] Speaker 3: A tool in the toolbox of people that don't like regulations.
[6:25] Speaker 3: And those people see, you know, see everything as a
[6:29] Speaker 3: nail and are taking out.
[6:30] Speaker 4: This hammer and banging on it. And you know, I
[6:33] Speaker 4: don't mean.
[6:34] Speaker 3: To say, I just want to be clear, like the
[6:36] Speaker 3: fact that people are raising this argument all the time
[6:38] Speaker 3: doesn't mean it's a good argument. It doesn't mean it's
[6:39] Speaker 3: going to win, but it does mean that the doctorate
[6:42] Speaker 3: is serving exactly the purpose it was created to serve,
[6:45] Speaker 3: right right.
[6:47] Speaker 2: I'm curious about how all of that fits in with
[6:51] Speaker 2: the context of the Inflation Reduction Act too. First, I'd
[6:55] Speaker 2: love to sort of hear from from both of your
[7:00] Speaker 2: thoughts on gaps in that legislation and where litigation might
[7:08] Speaker 2: play a role in addressing some of the concerns that
[7:13] Speaker 2: people have about it. But then I also wonder how
[7:16] Speaker 2: people are thinking about litigation given what's happening at the
[7:21] Speaker 2: Supreme Court right now. Kind of kind of broadly.
[7:25] Speaker 1: Sure, well, why don't I take the first part of
[7:28] Speaker 1: that question, the you know, the first part of what
[7:34] Speaker 1: does the IRA do and what's the role of litigation
[7:38] Speaker 1: in the IRA? And you know, I'll like here to
[7:43] Speaker 1: talk a little bit more about the impact of just
[7:46] Speaker 1: the general impact of this Supreme Court on litigation in
[7:51] Speaker 1: service of environmental and public interests. The IRA is first
[7:56] Speaker 1: and foremost as a spending bill, So one of the
[8:00] Speaker 1: the things about it is that it's basically giving money
[8:04] Speaker 1: to a whole lot of different sectors, including the clean
[8:08] Speaker 1: energy sector and the oil and gas sector, in the
[8:10] Speaker 1: form of various tax credits and other direct spending. And
[8:15] Speaker 1: that kind of policy work is not the sort of
[8:18] Speaker 1: thing that the Supreme Court is going to have a
[8:21] Speaker 1: lot to do with or the federal courts in general,
[8:25] Speaker 1: because it's spending. This isn't regulation, And politically speaking, that's
[8:30] Speaker 1: actually been the secret to making progress legislatively on climate
[8:36] Speaker 1: is to say, like, let's spend our way out of
[8:39] Speaker 1: this problem, let's invest in a clean energy economy. And
[8:42] Speaker 1: the deal, of course, was that this had to go
[8:46] Speaker 1: along with a lot of oil and gas and problematic
[8:51] Speaker 1: spending as well, including in technologies like carbon capture and
[8:55] Speaker 1: sequestration and blue hydrogen which are at best unproven, at
[9:00] Speaker 1: worst really just you know, the same old stuff in disguise.
[9:07] Speaker 1: So on the IRA, some of the problematic elements have
[9:10] Speaker 1: basically been the parts that are going to make it
[9:14] Speaker 1: easier and cheaper to expand fossil fuel infrastructure across a
[9:20] Speaker 1: lot of places in the country that already have a
[9:22] Speaker 1: lot of that infrastructure, and that as a result involve
[9:26] Speaker 1: a lot of pollution burdens on the people who live there,
[9:29] Speaker 1: and so ironically, a lot of those communities are the
[9:34] Speaker 1: foundation of a movement for climate justice that is very
[9:37] Speaker 1: much part of the political support for this legislation and
[9:43] Speaker 1: for President Biden's overall success in the last presidential elections.
[9:47] Speaker 1: So it's ironic that they're going to in many respects
[9:52] Speaker 1: see the raw side of this deal. So what role
[9:55] Speaker 1: does litigation play? Well, nothing in the Inflation Reduction Act,
[9:59] Speaker 1: Nothing in there limits the role of traditional environmental laws.
[10:04] Speaker 1: And that means that all of that infrastructure, oil and
[10:07] Speaker 1: gas and problematic pollution generating infrastructure is going to be
[10:11] Speaker 1: subject to those laws. And so litigation is going to
[10:14] Speaker 1: have a substantial role in making sure that any development
[10:17] Speaker 1: that's supported under this act is going to be is
[10:21] Speaker 1: going to have to pass through the gauntlet of those laws.
[10:24] Speaker 1: And organizations like Earth Justice are very much going to
[10:27] Speaker 1: be helping those communities fight back to make sure that
[10:29] Speaker 1: the future that they get out of this bill is
[10:31] Speaker 1: the future that they want. Anyway, we could go into
[10:35] Speaker 1: that a little bit more, but i'll like Koti talk
[10:37] Speaker 1: about the Court.
[10:39] Speaker 4: Yeah, I mean as to the Supreme Court.
[10:42] Speaker 3: I'll just you know, it's not like the Supreme Court
[10:46] Speaker 3: has ever been like super environmentally friendly, so.
[10:51] Speaker 2: The Climate Court, I'm just kidding, yeah, exactly.
[10:54] Speaker 3: So you know, I think it's important to just like
[10:57] Speaker 3: set the baseline in the right place. But that said,
[11:01] Speaker 3: you know, obviously this is a different court. This is
[11:04] Speaker 3: a more conservative court of courts that's more skeptical of
[11:07] Speaker 3: a federal authority and a federal agency authority in particular.
[11:12] Speaker 3: But that doesn't mean that like everybody should pack it
[11:15] Speaker 3: up and go home. It just means that, you know,
[11:18] Speaker 3: as with any challenge in litigation, you have to be
[11:21] Speaker 3: forward thinking and you know, and kind of smart about
[11:26] Speaker 3: how you approach litigation and think about where the risk
[11:28] Speaker 3: is and think about where you can make progress despite
[11:32] Speaker 3: that risk. And as Sam I think kind of previewed,
[11:35] Speaker 3: you know, there's lots of sort of bread and butter
[11:39] Speaker 3: environmental litigation that just isn't going to make its way
[11:41] Speaker 3: up to the Supreme Court because it doesn't implicate the
[11:44] Speaker 3: kind of big picture issues or principles that the Supreme
[11:47] Speaker 3: Court is concerned about, and that those.
[11:50] Speaker 4: Are things like you know, when a.
[11:52] Speaker 3: Facility gets built, it has to you know, get certain
[11:55] Speaker 3: permits and then those permits need to be enforced in
[11:58] Speaker 3: our federal environs, going to laws allow citizens people who
[12:02] Speaker 3: live you know, across the fence line from these really
[12:05] Speaker 3: polluting facilities too, to help enforce those permitting conditions, right.
[12:12] Speaker 3: And so those are the kinds of suits where it's
[12:14] Speaker 3: it's just about a specific permit and whether or not
[12:17] Speaker 3: it's being complied with. It's not about some big question
[12:20] Speaker 3: of federal power.
[12:21] Speaker 4: Right.
[12:23] Speaker 3: So, you know, those are the kinds of things where
[12:25] Speaker 3: if you hold people to their legal obligations, you can
[12:30] Speaker 3: you know, have an effect in these in these frontline communities,
[12:33] Speaker 3: on these facilities that you know, unfortunately and you know wrongly,
[12:39] Speaker 3: are are disproportionately burdening these these people. But that's the
[12:42] Speaker 3: kind of litigation that's not gonna you know, that doesn't
[12:46] Speaker 3: really happen in the shadow of the Suprene Court. And
[12:48] Speaker 3: even in figure cases. You know, we at our Justice
[12:53] Speaker 3: had a pretty important Clean Water Act case a couple
[12:56] Speaker 3: of years ago that our litigators what for the Supreme Court.
[13:02] Speaker 3: And you know, it was the five four version, not
[13:05] Speaker 3: the sixt three version. But even so, you know, we
[13:10] Speaker 3: still won that case and would have won it under
[13:12] Speaker 3: this court. So and that's just a matter of being,
[13:15] Speaker 3: you know, understanding how this Court looks at statutes, understanding
[13:18] Speaker 3: the perspective of the Supreme Court, and speaking in the
[13:21] Speaker 3: language they want to be spoken to. Right, So that's
[13:23] Speaker 3: just litigating well, and you can still win cases that way.
[13:28] Speaker 3: So you know, I don't mean to be like rosy
[13:30] Speaker 3: eyed about everything, but I think there's a certain degree
[13:34] Speaker 3: of just like, really good glorying will still win cases,
[13:37] Speaker 3: and really strategic glorying can still make a big difference.
[13:40] Speaker 2: I'm curious what you both think about some of some
[13:44] Speaker 2: of the quote unquote side deal that the aspects of
[13:49] Speaker 2: that related to the IRA, especially in terms of you know,
[13:53] Speaker 2: permitting and NEPA and the ways that what at least
[14:01] Speaker 2: has been kind of reported on so far seems to
[14:06] Speaker 2: be getting around some of our kind of you know,
[14:10] Speaker 2: environmental laws in favor of permitting things like pipeline. And
[14:15] Speaker 2: I want to ask you specifically about the Mountain Valley
[14:18] Speaker 2: pipeline in a minute too, but in general, yeah, I
[14:21] Speaker 2: guess how is Earth Justice approaching that that conversation and
[14:25] Speaker 2: what are the things that you're kind of hoping to
[14:29] Speaker 2: not see in the final version of that.
[14:32] Speaker 1: Well, you know, this is Friday, August twelfth. It's a
[14:35] Speaker 1: big day for passing the overall IRA. So you know,
[14:40] Speaker 1: first and foremost, we're looking forward to passage of the
[14:43] Speaker 1: bill and we're looking forward to President Biden signing it.
[14:48] Speaker 1: It's worth noting that, you know, the draft of this
[14:51] Speaker 1: side deal that we have, which is kind of freakishly
[14:55] Speaker 1: watermarked as API draft, is from several weeks ago, and
[15:00] Speaker 1: there's been no indication from Senator Schumer or Senator Mansion's
[15:05] Speaker 1: office they haven't. We haven't seen a more recent version
[15:09] Speaker 1: of this side deal. In fact, the version that we
[15:11] Speaker 1: have seen doesn't even include what it. What we gather
[15:14] Speaker 1: are some specific deals about the the m v P
[15:16] Speaker 1: the amount of value pipeline. So so a lot of
[15:19] Speaker 1: what I'll say here is based on something that may
[15:23] Speaker 1: not be the current deal. I mean that said that,
[15:27] Speaker 1: the version that we saw from a few weeks ago
[15:30] Speaker 1: includes a couple of major provisions that are problematic on
[15:35] Speaker 1: their own. One is a series of provisions that are
[15:41] Speaker 1: designed to uh in quotes, streamline the permitting process, and
[15:45] Speaker 1: what that functionally means is making it harder to well
[15:50] Speaker 1: making making it easier for agencies to do NEPA analyzes
[15:54] Speaker 1: by by making those analyzes less thorough or allowing them
[15:59] Speaker 1: to do less thorough analyzes, and then by making it
[16:02] Speaker 1: harder for people to comment and seek judicial review on
[16:06] Speaker 1: those analyzes. You know, for example, the statute of limitations
[16:11] Speaker 1: for NEPA challenges in most cases of six years, and
[16:15] Speaker 1: under this, under the draft that we've seen, it would
[16:18] Speaker 1: be five months in some cases, And that may seem like, well,
[16:21] Speaker 1: that geez, that five months you should you should be
[16:22] Speaker 1: able to know if there's a problem with the project,
[16:24] Speaker 1: But in fact, many of these projects get approved long
[16:27] Speaker 1: before anyone in a community has any idea that that
[16:30] Speaker 1: something is up. And so given the way that we
[16:35] Speaker 1: notify communities about what's going on, five months is often
[16:38] Speaker 1: a laughably short period of time for them to be
[16:40] Speaker 1: able to respond in court. There's also a bunch of
[16:43] Speaker 1: other provisions that essentially require the president to prioritize oil
[16:48] Speaker 1: and gas large oil and gas development for special attention
[16:52] Speaker 1: through the permitting process and anyway. And there's also some
[16:57] Speaker 1: things that affect the Clean Water Act. There's some things
[17:01] Speaker 1: that that are generally pro electricity infrastructure, but also contains
[17:07] Speaker 1: some problematic visions. So there's a lot of stuff in there.
[17:09] Speaker 1: We don't really know what the final deal is going
[17:12] Speaker 1: to be, but we also know that, unlike the IRA,
[17:16] Speaker 1: there's going to be a real legislative conversation about this.
[17:19] Speaker 1: We know that, you know, the House hasn't already hasn't
[17:22] Speaker 1: passed this. This may be a deal among a couple
[17:24] Speaker 1: of senators, but that doesn't mean that the House of
[17:27] Speaker 1: Representative is going to do it. And you know, as
[17:30] Speaker 1: we hope the IRA is going to be passed and
[17:33] Speaker 1: this side deal is going to have to pass independently,
[17:36] Speaker 1: I'll let Kurtate talk a little bit about what the
[17:38] Speaker 1: rumors of what we've heard about this Mountain Valley pipeline,
[17:41] Speaker 1: and you know, the side deal also includes this slightly
[17:45] Speaker 1: odd judicial review provision as well.
[17:47] Speaker 2: Yeah, Kret, can you talk a little bit about the
[17:50] Speaker 2: Mountain Valley pipeline and also, like related to that, the
[17:54] Speaker 2: the way that at least what we've seen and what's
[17:57] Speaker 2: been you know, kind of shared with the press, the
[17:59] Speaker 2: way that it would dictate jurisdiction seems really troubling, I think. So, Yeah,
[18:07] Speaker 2: I'd love to hear you your take on that.
[18:10] Speaker 3: Yeah, So, as Sam kind of previewed for when it
[18:15] Speaker 3: comes to Mount Value of Pipeline. We don't even have
[18:18] Speaker 3: you know, the draft text of the provision. We have
[18:21] Speaker 3: kind of a rumor that Mount Valley Pipeline and its
[18:26] Speaker 3: backers want and have I guess secured language that would
[18:32] Speaker 3: take cases out of the Fourth Circuit, which is where
[18:34] Speaker 3: they're filed under the default you know, like federal statutes
[18:39] Speaker 3: and I think potentially put them into the d C Circuit.
[18:43] Speaker 3: And the reason Mount Value Pipeline wants this.
[18:48] Speaker 4: Is because.
[18:51] Speaker 3: Basically, the way that courts of appeals work is, you know,
[18:55] Speaker 3: most of them have a rule that says, you know,
[18:57] Speaker 3: when one panel which is three judges, gets assigned to
[19:01] Speaker 3: a case, if a later case comes up that you know,
[19:05] Speaker 3: involves the same project or it's you know, a set
[19:08] Speaker 3: of issues or similar record, you know, it's just more
[19:11] Speaker 3: efficient to asside those to the same panel because like
[19:14] Speaker 3: they're already familiar with it. And so Mount Value Pipeline's
[19:19] Speaker 3: first case got assigned to a panel in the Fourth
[19:22] Speaker 3: Circuit and most of the later cases related to that
[19:26] Speaker 3: pipeline have also been assigned to the same panel, and
[19:30] Speaker 3: Mount Value Pipelines upset that it has lost some of
[19:33] Speaker 3: these cases and already complaint to the Fourth Circuit itself,
[19:38] Speaker 3: so you know in some of the decisions that it's lost,
[19:41] Speaker 3: and I should be clear it hasn't lost all of
[19:43] Speaker 3: these decisions. When when Mount Value Pipeline is making this claim,
[19:48] Speaker 3: it excludes from the baseline of the number of decisions
[19:52] Speaker 3: that it's talking about a bunch of decisions related to condemnation,
[19:55] Speaker 3: which is its authority to take land for the pipeline.
[19:59] Speaker 4: Almost all of.
[20:00] Speaker 3: The same group of judges has upheld so like allowing
[20:03] Speaker 3: them to take private property and their federal statutes to
[20:05] Speaker 3: build their pipeline, So it kicks those out of the
[20:08] Speaker 3: denominator to make the numbers look less favorable to it.
[20:11] Speaker 3: And then it says, you know, we're losing more of
[20:14] Speaker 3: these cases than we think we should under like the
[20:17] Speaker 3: law of averages, I guess, and it's already complained to
[20:21] Speaker 3: the Fourth Circuit in its petitions. You know, when it
[20:24] Speaker 3: loses a case, it's petitioned for rehearing on bog which
[20:27] Speaker 3: just means it's asked full Fourth Circuit to consider these decisions.
[20:32] Speaker 3: And it's kind of jabbed at the panel in those filings,
[20:35] Speaker 3: and the Fourth Circuit has been full Fourth Circuit, so
[20:38] Speaker 3: including other judges right, hasn't.
[20:41] Speaker 4: Taken the bait.
[20:42] Speaker 3: It hasn't thought that there was you know, worthwhile merit
[20:46] Speaker 3: to those claims. And it actually moved to basically disqualified
[20:49] Speaker 3: the panel recently and asked the Fourth Circuit to assign
[20:53] Speaker 3: these cases to a different panel, and the Fourth Circuit
[20:55] Speaker 3: said no. And you know, just to be clear, it's
[21:00] Speaker 3: not like losing all these cases at all. If you
[21:03] Speaker 3: read these decisions, you know the panel will accept some
[21:07] Speaker 3: of the claims, it will reject some of the claims.
[21:09] Speaker 3: They're like thoroughly recent decisions. It's not like they're like
[21:11] Speaker 3: knee jerk anti pipeline decisions. They're just holding the federal agencies,
[21:17] Speaker 3: which you know, have obligations under federal statutes.
[21:20] Speaker 4: They're burdens.
[21:21] Speaker 3: And so I guess, having you know, failed to make
[21:25] Speaker 3: an argument that would win in court, now Value Pipeline
[21:29] Speaker 3: is now gotten its backers to take these cases away.
[21:36] Speaker 4: From the Fourth Circuit and put them in the DC Circuit.
[21:38] Speaker 3: And I have to say, you know, reading these decisions,
[21:42] Speaker 3: I didn't work out these cases. So all I've got
[21:44] Speaker 3: is read some of the opinions, but they don't strike
[21:46] Speaker 3: me as the kind of opinions that would come out
[21:48] Speaker 3: differently if you put them in front of a different
[21:50] Speaker 3: set of judges, and that's like psychoanalyzed judges. But I
[21:54] Speaker 3: can't imagine that the DC Circuit is going to be
[21:57] Speaker 3: you know, that pleased that you know, this pipeline company
[22:01] Speaker 3: thinks that, like, you know, they've they looked around the
[22:04] Speaker 3: country and wanted to pick their judges and decided on.
[22:07] Speaker 4: The d C Circuit.
[22:08] Speaker 3: You know, I don't think federal judges in general like
[22:11] Speaker 3: the idea of judge shopping in that way or implying that,
[22:15] Speaker 3: you know, the Fourth Circuit is biased. Those are their
[22:17] Speaker 3: colleagues too, So I'm not really sure it's going to
[22:20] Speaker 3: work out.
[22:20] Speaker 4: Any better for them at the end.
[22:23] Speaker 3: But you know, just am your question kind of hinted
[22:26] Speaker 3: at it that it just as a bottom line matter,
[22:29] Speaker 3: it's sort of distressing that that a really powerful industry
[22:35] Speaker 3: group can pick its judges in its cases. Yeah, in
[22:41] Speaker 3: order to kind of jerrymander the outcomes that at once
[22:45] Speaker 3: that that just on its face looks really.
[22:48] Speaker 2: Bad, seems like a bad precedent to set.
[22:53] Speaker 1: Yeah, at the same time, it's ironic that that the
[22:57] Speaker 1: they want to be in the d C circuit because
[23:01] Speaker 1: you know the d C Circuit is not the Fifth Circuit.
[23:04] Speaker 1: In fact, as as environmental lawyers, I you know, that's
[23:09] Speaker 1: not a bad place for us. It tends to be
[23:11] Speaker 1: a highly technocratic and very you know. It's back when
[23:17] Speaker 1: I was an active litigator, that was my favorite court
[23:20] Speaker 1: to litigate in because they dug in and they would
[23:22] Speaker 1: really get to know the details of the arguments. And
[23:26] Speaker 1: if I'm not at all sure that if I were
[23:28] Speaker 1: an industry that that's where I go. Now, certainly, if
[23:31] Speaker 1: they had said we want to go to the Fifth Circuit,
[23:33] Speaker 1: I would have number one said, well, I can understand why,
[23:38] Speaker 1: and number two I would have been all the more
[23:40] Speaker 1: distressed that that they really were just, you know, forum
[23:45] Speaker 1: shopping in the most naked way. But you know, so
[23:49] Speaker 1: anyway that I share Curty's concern that that we're moving
[23:54] Speaker 1: specific cases around, I do think it's sort of funny
[23:57] Speaker 1: that they may be out of the frying pan and
[23:59] Speaker 1: into the fire.
[24:00] Speaker 2: Yeah, it'll depend on the.
[24:02] Speaker 1: Panel draw they get in the DC Circuit.
[24:04] Speaker 2: Yeah, yeah, I know. I thought that was weird too.
[24:07] Speaker 2: It was like, I don't it's not like that's a
[24:08] Speaker 2: slim dunk for them. Okay, So looking ahead, at the
[24:12] Speaker 2: next session of the Supreme Court. Obviously, West Virginia versus
[24:17] Speaker 2: EPA is not the only you know, environment or climate
[24:20] Speaker 2: related case that they have taken up. What should we
[24:24] Speaker 2: be looking out for? What's coming up next? I know, Sam,
[24:27] Speaker 2: you kind of wrote about this recently.
[24:30] Speaker 1: Yeah, Well, the blockbuster case of next rum or at
[24:33] Speaker 1: least so far the likely blockbuster is is the Sacket case,
[24:40] Speaker 1: which involves the Clean Water Act. And you know, the
[24:44] Speaker 1: Sackets have been serial litigators on this issue and have
[24:48] Speaker 1: been to the Supreme Court before, where they won nine
[24:51] Speaker 1: to zero on a fairly straightforward question about whether or
[24:53] Speaker 1: not they had a right to be in court at
[24:55] Speaker 1: all on this They're a couple whose claim is based
[25:02] Speaker 1: on their desire to get a permit to do some
[25:05] Speaker 1: development and their belief that they shouldn't even have to
[25:09] Speaker 1: get a permit. To be clear, if they had applied,
[25:11] Speaker 1: they almost certainly would have gotten a permit, but they
[25:13] Speaker 1: don't even feel like they should have to get one.
[25:15] Speaker 1: And the permit is to is to fill in some
[25:17] Speaker 1: wetlands on their property. And the real underlying question is
[25:23] Speaker 1: what does the Clean Water Act protect? And everybody understands
[25:26] Speaker 1: that the Clean Water Act protects lakes and rivers and
[25:31] Speaker 1: the ocean, you know, big rivers and the ocean. But
[25:35] Speaker 1: the fight for some time from the right has been
[25:39] Speaker 1: to constrict the applicability of the Clean Water Act to
[25:43] Speaker 1: smaller streams and to wetlands. And of course any scientists
[25:46] Speaker 1: would tell you that there's no way to protect the
[25:48] Speaker 1: water quality and downstream rivers and lakes in those bodies
[25:52] Speaker 1: that nobody nobody contends aren't protected by the Clean Water Act.
[25:57] Speaker 1: But if you want to protect those water bodies, you
[25:58] Speaker 1: need to protect the upper parts of the watershed, which
[26:01] Speaker 1: often involves smaller rivers, uh and streams, and then the
[26:04] Speaker 1: wetlands that that feed them. So the there's a lot
[26:10] Speaker 1: of industries that would like to be able to fill
[26:13] Speaker 1: in wetlands and uh and and frankly pollute areas that
[26:19] Speaker 1: that currently the Clean Water Act protects. And by arguing
[26:24] Speaker 1: that the Clean Water Act doesn't protect those things, they're
[26:27] Speaker 1: essentially an accomplished deregulation. So they're not changing the protections
[26:31] Speaker 1: of the Clean Water Act, they're changing where they apply. Now,
[26:34] Speaker 1: the Court has been very interested in this issue for
[26:37] Speaker 1: a while, and back when Justice Scalia was around, he
[26:42] Speaker 1: wrote an important opinion that only that only attracted three
[26:45] Speaker 1: other boats. It was it was only an opinion of
[26:47] Speaker 1: four justices and therefore wasn't controlling. But it suggested a
[26:51] Speaker 1: much more constricted understanding of what the Clean Water Act protects.
[26:55] Speaker 1: And we know that that I you know, I think
[26:59] Speaker 1: everybody is pred thing that this Court will will try
[27:03] Speaker 1: to put Justice Scalia's test in charge, which would again
[27:06] Speaker 1: be a much more restricted understanding of what the Clean
[27:09] Speaker 1: Water Act protects. That's that's the blockbuster. But there there
[27:12] Speaker 1: are some other, maybe less less appreciated cases that will
[27:17] Speaker 1: have a lot to do with environmental law. I mean,
[27:18] Speaker 1: it's not always environmental law cases that in fact that
[27:21] Speaker 1: that effect what environmental law does, because administrative law, the
[27:25] Speaker 1: law of regulations is props up and lots of lots
[27:28] Speaker 1: of context, not just the environment right right.
[27:31] Speaker 2: Well, well, I have one follow up on the SACA case.
[27:33] Speaker 2: Do you have any sense of kind of where that
[27:36] Speaker 2: case came from in terms of you know, are I mean,
[27:43] Speaker 2: I'm I'm curious if it's like, is it a RAGA case?
[27:46] Speaker 2: Is it like how coordinated is well?
[27:49] Speaker 1: I mean, you know, it's you know, let's put it
[27:52] Speaker 1: this way. If it is awfully convenient for the many
[27:58] Speaker 1: organizations that are supporting the Sackets, that the Sackets themselves
[28:02] Speaker 1: or are a sort of you know, libertarian face of this.
[28:07] Speaker 1: This with just you know this, this purple you know,
[28:10] Speaker 1: this couple that you know seems like just a mom
[28:12] Speaker 1: and pop trying to get something done. But it's it
[28:15] Speaker 1: should come as no surprise that organizations like the American
[28:18] Speaker 1: Petroleum Institute are happy to file major amicus briefs and
[28:22] Speaker 1: the Sackets are being represented by by folks who are
[28:27] Speaker 1: movement and agenda lawyers. So this is this may not
[28:30] Speaker 1: have been you know, I'm not sure anybody called them
[28:33] Speaker 1: up and say, hey, you should try to build something
[28:35] Speaker 1: and then we'll make a case out of it. But
[28:36] Speaker 1: certainly when their case popped up, it attracted a lot
[28:39] Speaker 1: of attention and a lot of support because it was
[28:42] Speaker 1: a it was a vehicle that a lot of not
[28:45] Speaker 1: mom and pop operations were interested in seeing succeed.
[28:51] Speaker 2: Right right, Who's who's representing them.
[28:55] Speaker 4: It's the Pacific Legal Foundation.
[28:58] Speaker 2: Oh okay, I mean they're not this is not.
[29:05] Speaker 1: Look We're we're an organization with a point of view,
[29:08] Speaker 1: and I'm sure that there are people at the Pacific
[29:09] Speaker 1: Legal Foundation who would say, oh, well, Earth Justice is
[29:12] Speaker 1: representing them. The difference is we don't have a whole
[29:14] Speaker 1: lot of industries who are also feeding us money in
[29:17] Speaker 1: order to do that. You know, we're we're we are
[29:22] Speaker 1: not on the side of industry and were don't you know,
[29:26] Speaker 1: we don't have the American Petroleum Institute filing next to us,
[29:29] Speaker 1: right right, Yeah.
[29:31] Speaker 3: And I'll just you know, just to inject a bit
[29:34] Speaker 3: of you know, I think Sam's laid out just how
[29:38] Speaker 3: important the Clean Water Act is and how important a
[29:41] Speaker 3: decision that restricts its scope and what it is capable
[29:45] Speaker 3: of protecting is to you know, like reel people on the.
[29:49] Speaker 4: Ground, many of whom are our clients.
[29:52] Speaker 3: But it's probably also worth like just noting that these
[29:56] Speaker 3: briefs that Sam mentioned, you know, from people like the
[30:00] Speaker 3: API Staper Commerce, Americans for Prosperity, you know, a group
[30:04] Speaker 3: of Red states again led by West Virginia.
[30:08] Speaker 4: You know these briefs, aren't you know?
[30:11] Speaker 3: There's something similar to what was happening in West Virginia
[30:13] Speaker 3: versus EPA going on in these cases. They're not just
[30:16] Speaker 3: about the Clean Water Act. They're also kind of trying
[30:20] Speaker 3: to seed these anti regulatory principles in the same way
[30:25] Speaker 3: as they succeeded in West Virginia. They're asking, you know,
[30:28] Speaker 3: they're telling the court like things like, you know, well,
[30:33] Speaker 3: the Clean Water Act is you know, addresses like public
[30:37] Speaker 3: health and safety, and that's traditionally an area of the
[30:40] Speaker 3: state's control, not the federal government's control. So there's it's
[30:43] Speaker 3: got to be really clear when there's a federal statue
[30:46] Speaker 3: that invades that traditional state authority. You know, all these
[30:50] Speaker 3: kind of clear statement rules is what they're called in
[30:53] Speaker 3: the law, that basically act as like thoughts on the
[30:57] Speaker 3: scale against federal power or agency power or this is
[31:01] Speaker 3: like two of trying to develop additional tools that can
[31:04] Speaker 3: be used in later cases and later challenges. So it's
[31:09] Speaker 3: not just it's about the Clean Water Act. All these
[31:12] Speaker 3: groups have a very obvious interest in avoiding the application
[31:16] Speaker 3: of the Queen Water Act, right, but it's also that
[31:19] Speaker 3: they see this as another opportunity before this court to
[31:22] Speaker 3: kind of establish broader legal principles that they can then
[31:26] Speaker 3: use going forward.
[31:28] Speaker 1: You Know, one thing you notice is Kitty and I
[31:31] Speaker 1: both both worked at the Supreme Court at very different times,
[31:36] Speaker 1: and when I was there, the swing boat was Justice O'Connor,
[31:40] Speaker 1: who I worked for, or in some cases Justice Kennedy
[31:43] Speaker 1: and each Back then, people didn't push these big legal principles.
[31:49] Speaker 1: They didn't really you know, in some cases they would
[31:51] Speaker 1: talk about deregulatory ideas or returning power to the states
[31:55] Speaker 1: to appeal to Justice Kennedy, but in general, people were
[31:57] Speaker 1: kind of swinging for singles. They were trying to win
[32:01] Speaker 1: small and individual cases and build big And what you're
[32:04] Speaker 1: seeing in cases like Sacket is I think the other
[32:09] Speaker 1: side on these things is assuming that they're going to
[32:11] Speaker 1: win the narrow case, they're pretty sure they're going to
[32:14] Speaker 1: win the Sacket's case, and they're swinging for the fences
[32:17] Speaker 1: to get broader principles. So in the West Virginia versus
[32:20] Speaker 1: EPA case, all of us on the outside were saying,
[32:24] Speaker 1: why would they have taken this case about a regulation
[32:26] Speaker 1: that doesn't even exist if they were going to say
[32:29] Speaker 1: that the regulation was fine. So we strongly suspect that
[32:32] Speaker 1: they're going to try to strike this regulation down. So
[32:35] Speaker 1: the fight is really about how far do they hit
[32:38] Speaker 1: that ball into the outfield and do they get a
[32:40] Speaker 1: home run? So what you see in the briefs on
[32:42] Speaker 1: the right is just egging the court's conservatives on to
[32:46] Speaker 1: say as much as possible through the vehicle of the case.
[32:49] Speaker 2: Yeah, yeah, okay, And then you mentioned some other cases
[32:53] Speaker 2: that could have a big impact on environmental issues in general,
[32:59] Speaker 2: but are not as necessarily explicitly environmental cases. Could you
[33:03] Speaker 2: expand on that, which which cases are you kind of
[33:06] Speaker 2: keeping an eye on in that regard.
[33:08] Speaker 3: Yeah, There's there's one case called Ross and it's a
[33:13] Speaker 3: it's actually a constitutional case, it's not an administrative law case,
[33:16] Speaker 3: and it's about the what's called the dormant Commerce claus
[33:21] Speaker 3: which is like a law speak for like an unrid
[33:25] Speaker 3: principle that is derived from the Commerce Clause of the
[33:28] Speaker 3: Federal Constitution. But basically, this is a case about a
[33:33] Speaker 3: balve initiative that was passed in California. It's called Proposition twelve,
[33:38] Speaker 3: and it's a law that prohibits people from selling pork
[33:44] Speaker 3: in California that is derived from an animal that was
[33:49] Speaker 3: confined in a cruel manner, which is, you know, to
[33:52] Speaker 3: find just things like you know, preventing animals from being
[33:55] Speaker 3: all lie down or turn around or being in a
[33:57] Speaker 3: space that's too small. And we're pretty users have challenged
[34:02] Speaker 3: this law at violating what's known as the Dormant Commerce Clause.
[34:07] Speaker 4: And you know the basic ideas that the.
[34:10] Speaker 3: Federal Constitution gives Congress the authority to regulate interstate commerce,
[34:15] Speaker 3: so commerce between states, and so the kind of back
[34:20] Speaker 3: like principle that the dormant converse clause enforces is the
[34:23] Speaker 3: idea that, like, if that's Congress's power, then states can't
[34:27] Speaker 3: do that. And so when states try and do that,
[34:30] Speaker 3: that violates the so called dormant Commerce Clause. And there's
[34:34] Speaker 3: like different ways that the Supreme Courts cases describe how
[34:39] Speaker 3: this principle can be violated. One it is like when
[34:42] Speaker 3: a state sort of literally writes a law that says
[34:44] Speaker 3: like you know, if it's if it's Texas, and they
[34:48] Speaker 3: write a lot it says like Louisiana products can't be
[34:51] Speaker 3: sold here.
[34:51] Speaker 4: Or something like that.
[34:52] Speaker 3: Right, So one is where it's like obviously discriminating against
[34:57] Speaker 3: against it our state commerce. Another one is this kind
[35:00] Speaker 3: of mushier balancing test where if a state passes the
[35:05] Speaker 3: law that burdens interstate commerce, that the courts can kind
[35:08] Speaker 3: of balance whether or not that like benefits that the
[35:12] Speaker 3: state is offering and support of that law outweigh the
[35:15] Speaker 3: burdens on interstate commerce. And the last one, which is
[35:18] Speaker 3: kind of the most important for the discussion we're having,
[35:20] Speaker 3: is this principle called the extra territoriality principle, which is
[35:24] Speaker 3: the idea that if they're even if a law is
[35:27] Speaker 3: like written to address in state activity, if it has
[35:31] Speaker 3: effects outside of the state that can raise concerns that
[35:35] Speaker 3: would require the application of a constitutional test. And you know,
[35:39] Speaker 3: obviously this case is important on its own facts, but
[35:43] Speaker 3: the reason it's important in a broader sense is that
[35:47] Speaker 3: folks have challenge laws like renewable portfolio standards under this
[35:52] Speaker 3: extra territoriality principle. You know, the idea being if a
[35:56] Speaker 3: state says, you know, x percentage of our energy has
[35:59] Speaker 3: to come for renewable sources. We live on an interconnected grid,
[36:04] Speaker 3: and so that has effect on the production of energy
[36:08] Speaker 3: outside of the state. And in a sort of like
[36:11] Speaker 3: weird moment of potential hope, conservative judges, a lot of
[36:14] Speaker 3: conservative judges, i should say, not all of them, but
[36:17] Speaker 3: are kind of unhappy with this extra territoriality idea because
[36:22] Speaker 3: you know, the whole dormant commerce clause enterprise is not
[36:25] Speaker 3: really based in the text of the constitution in this
[36:29] Speaker 3: extra territoriality principle is like kind of the most formalist
[36:33] Speaker 3: of all that, right, It's like, if there are some
[36:35] Speaker 3: effects that you question, it's constitutionality. And like almost everything
[36:39] Speaker 3: has effects. Almost everything in our modern world has effects
[36:43] Speaker 3: outside of the state. And so just Ascorsage actually wrote
[36:46] Speaker 3: an opinion when he was on the Tenth Circuit upholding
[36:49] Speaker 3: Colorado's renewable portfolio standards under this under a challenge based
[36:54] Speaker 3: on this extra territoriality principle. And so you know, I
[36:58] Speaker 3: think there's a chance that in this in this case,
[37:00] Speaker 3: the court maybe goes towards limiting that and then like
[37:04] Speaker 3: keeping those kinds of RPS laws on safer grounds, not
[37:11] Speaker 3: you know, in the text of the opinion, but sort
[37:12] Speaker 3: of as a consequence of the opinion. So that's one
[37:15] Speaker 3: to watch as well. And then there are just kind
[37:19] Speaker 3: of like other cases that you know, you might not
[37:22] Speaker 3: think of as environmental cases, but you know, the court's
[37:26] Speaker 3: hearing a big affirmative action case next term, and you
[37:32] Speaker 3: know it'll be important to see what the Court says
[37:35] Speaker 3: about that for things like you know, environmental justice laws
[37:40] Speaker 3: or projects or programs, and you know which like try
[37:45] Speaker 3: to protect overburdened communities, and often there is right up
[37:49] Speaker 3: corollary with race, and so understanding what the court thinks
[37:52] Speaker 3: about when you can address those situations is going to.
[37:55] Speaker 4: Be really important.
[37:57] Speaker 3: There's an administrative law case the court just took where
[38:02] Speaker 3: it seems like the Court's going to address a pretty
[38:05] Speaker 3: important issue about when states have standing to sue and
[38:09] Speaker 3: potentially make it harder for states to have standing.
[38:11] Speaker 4: And so in a world where the court's.
[38:14] Speaker 3: You know, make it harder for individual plaintiffs to sue,
[38:16] Speaker 3: one sort of right spot has been that, at least
[38:19] Speaker 3: for the environmental community is that, you know, blue state
[38:22] Speaker 3: coalitions can still bring suits. Obviously there's the trade off
[38:25] Speaker 3: with the other group of states being able to break
[38:29] Speaker 3: suits as well. Right, but like that's that's been one
[38:31] Speaker 3: way to get to court, and so that's that their
[38:34] Speaker 3: decisions will be watching to see what the court says
[38:37] Speaker 3: about state standing. And that's totally you know, it's the
[38:40] Speaker 3: Court's will be taken like maybe two sittings worth of cases,
[38:44] Speaker 3: so there'll be more more to come.
[38:46] Speaker 2: Yeah, yeah, is there any sense I mean, like I
[38:49] Speaker 2: have especially with oil companies, I don't know, Like I
[38:55] Speaker 2: I wonder if we'll see US oil companies being sued
[39:00] Speaker 2: in other countries more even if they start to get
[39:03] Speaker 2: away with things here.
[39:05] Speaker 1: Well, it's certainly the case that we, you know, Earth
[39:08] Speaker 1: Justice does have an international program, and our international program
[39:12] Speaker 1: primarily supports public interest law organizations in other countries. The
[39:18] Speaker 1: US has a very developed public interests environmental law program.
[39:23] Speaker 1: And that's not to say it's very very you know,
[39:25] Speaker 1: like it's enormous. We have about one hundred and eighty lawyers,
[39:28] Speaker 1: and that makes us huge and you know, a giant
[39:32] Speaker 1: law firm in the public interest world, but that's still
[39:35] Speaker 1: pretty small in the grand scheme of things. In other countries,
[39:37] Speaker 1: it's an order of magnitude, if not less than that,
[39:42] Speaker 1: in terms of what the resources are there. Having said that,
[39:45] Speaker 1: those those organizations and regular old people in other countries
[39:51] Speaker 1: have been very successful in pushing back on international and
[39:55] Speaker 1: US oil companies for the local harms that have been
[39:58] Speaker 1: happening where they have resources to bring those cases. Again,
[40:02] Speaker 1: the public interest legal community in those in countries like
[40:06] Speaker 1: you know, South Africa or Australia or Latin America, you know,
[40:12] Speaker 1: in general, they're just much less well resourced than we
[40:15] Speaker 1: are in the US, and the structures for public interest
[40:19] Speaker 1: law are much less developed. But the flip side is
[40:23] Speaker 1: some of those countries have provisions in their constitution that
[40:27] Speaker 1: are more directly relevant to those claims. And so we're seeing,
[40:31] Speaker 1: for example, in places like South Africa, where where planets
[40:35] Speaker 1: have been able to say, hey, look, you know, we
[40:37] Speaker 1: have legal protections on these things, and you the courts
[40:40] Speaker 1: need to figure out ways to make bring those protections
[40:43] Speaker 1: to life.
[40:43] Speaker 3: I mean, we the federal constitution. Our federal constitution doesn't
[40:48] Speaker 3: have you know, those kinds of express provisions, but some
[40:53] Speaker 3: of the state constitutions do.
[40:57] Speaker 1: So I don't know if I wanted to with that
[41:00] Speaker 1: up a little bit sure, I mean, there are direct
[41:03] Speaker 1: state constitutional protections like Montana. I don't know the precise
[41:09] Speaker 1: language off the top of my head, but Montana's constitution
[41:12] Speaker 1: does have protections for people to make sure that they
[41:17] Speaker 1: have a clean, healthy environment. I forget what the exact
[41:20] Speaker 1: language is, but what that means is that there's an
[41:23] Speaker 1: ability for people to go for people in Montana to
[41:26] Speaker 1: go to court to say, hey, this thing that's happening
[41:28] Speaker 1: violates the state constitution. And then there are also states
[41:32] Speaker 1: like Louisiana and Hawaii that have public trust doctrines, and
[41:36] Speaker 1: those are doctrines that say that the state government that
[41:39] Speaker 1: state land is that there's an obligation of the government
[41:45] Speaker 1: to be protecting that in the public interest. And in
[41:49] Speaker 1: some of those states we've been able to make some headway,
[41:51] Speaker 1: and other public interests litigans have been able to make
[41:53] Speaker 1: some headway and saying hey, your state courts need to
[41:56] Speaker 1: do something with these things. These can't just be written
[41:58] Speaker 1: on paper. And then finally, there are states like New
[42:01] Speaker 1: York that are enacting transformative legislation like the CLCPA, the
[42:08] Speaker 1: Climate Leadership and Community Protection Act in New York, and
[42:10] Speaker 1: those are super important tools, and I think those are
[42:14] Speaker 1: increasingly going to be the focus of political climate and
[42:22] Speaker 1: state level climate action because those laws are going to
[42:25] Speaker 1: be really important, and we're going to see those being
[42:27] Speaker 1: done both statutorily by legislators and I think also through
[42:31] Speaker 1: ballot initiatives that we've seen in places like Washington State
[42:36] Speaker 1: and elsewhere to bring real legal protections at the state
[42:41] Speaker 1: level into play.
[42:43] Speaker 2: That actually totally dovetails with my last question, which is
[42:45] Speaker 2: we kind of touched on this earlier too. I think
[42:48] Speaker 2: that there's a certain amount of understandable pessimism about litigation
[42:56] Speaker 2: because ultimately it will end up in the Supreme Court,
[42:58] Speaker 2: and then the Supreme Court will rule against anything that's
[43:01] Speaker 2: good for climate. That's that's like the you know, in
[43:04] Speaker 2: very broad strokes, the sentiment that I hear a lot.
[43:06] Speaker 2: So I'm curious what your response is to that.
[43:10] Speaker 1: Oh, I think the courts are going to remain super
[43:12] Speaker 1: relevant and if anything more relevant. The old model of
[43:17] Speaker 1: environmental law was to fight at a purely regulatory level,
[43:21] Speaker 1: you know, just to sort of go to court and say,
[43:24] Speaker 1: here's the Clean Air Act. We're going to sue EPA
[43:26] Speaker 1: for not issuing stricter regulations on this, or if the
[43:29] Speaker 1: regulations come out and the industry challenges them, to be
[43:31] Speaker 1: in there to say, hey, wait, these regulations are fine.
[43:34] Speaker 1: And I do agree that with a highly deregulatory and
[43:40] Speaker 1: skeptical of agencies Supreme Court, that kind of litigation is
[43:45] Speaker 1: is going to be harder, and that we're going to
[43:47] Speaker 1: have to be more thoughtful and cautious in the cases
[43:49] Speaker 1: that we bring and more aggressive in our defense of
[43:53] Speaker 1: regulations that around the books and statutes that are on
[43:55] Speaker 1: the books. On the other hand, you know, the Climate
[43:59] Speaker 1: Justice and environ Mental justice movements are deeply dovetailed with
[44:04] Speaker 1: the need for getting systematic change in the way we
[44:08] Speaker 1: regulate pollution and climate, and a lot of those cases
[44:12] Speaker 1: are very much local, fact intensive and specific cases about
[44:18] Speaker 1: specific harms and specific violations of law that are part
[44:22] Speaker 1: and parcel of a movement for broader change. And those
[44:26] Speaker 1: kinds of cases brought on behalf of communities where you're
[44:29] Speaker 1: going into court saying this isn't about some abstract principle
[44:33] Speaker 1: that's way over there in Washington, DC. This is about
[44:36] Speaker 1: real people and a pipeline or a mine, or pollution
[44:42] Speaker 1: that's affecting real lives, whether it's lead in the water
[44:46] Speaker 1: or a smog in the air. Those cases are going
[44:49] Speaker 1: to be really important in the years to come, and
[44:53] Speaker 1: those are cases where what matters is the facts you bring,
[44:57] Speaker 1: the partners you bring, the the industries that you're you're
[45:03] Speaker 1: dealing with. Those I think those cases are very live
[45:05] Speaker 1: and I don't see any way in which those cases
[45:09] Speaker 1: are going to be, you know, like fundamentally harder, harder
[45:13] Speaker 1: to bring. You know, there's there's things like standing and
[45:15] Speaker 1: others that that the that the that the right wing
[45:18] Speaker 1: courts are trying to these little doctrines that the Court
[45:21] Speaker 1: is trying to chip away in the side, but I
[45:22] Speaker 1: fundamentally believe that those cases are going to be both
[45:25] Speaker 1: increasingly important and that they're going to be continued to
[45:28] Speaker 1: be very viable and very very powerful.
[45:39] Speaker 2: Thrilled and Damages are original Critical Frequency productions. This episode
[45:44] Speaker 2: was reported by me Amy Westervelt and mixed and mastered
[45:48] Speaker 2: by Bennett Smith. Original music is by Peter duff Our.
[45:53] Speaker 2: Artwork is done by Matthew Fleming. For ongoing information about
[45:58] Speaker 2: climate litigation and all sorts of other things, check out
[46:01] Speaker 2: our website at Drill podcast dot com. You can also
[46:05] Speaker 2: follow us at We Are Drilled. That's it for this time,
[46:09] Speaker 2: Thanks for listening, and we'll see you next week.

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