# Tariffs Struck Down, Erasing History & Climate Rule Revoked

An episode of [Bloomberg Law](https://invisiblenetwork.ai/podcast/277975394), 20 Feb 2026, 37 min.

Audio: https://podtrac.com/pts/redirect.mp3/traffic.omny.fm/d/clips/e73c998e-6e60-432f-8610-ae210140c5b1/7c892d84-801f-4c0b-b0e9-ae2b0012ff5f/31f58710-e0bd-4bdf-921c-b3f7017d63a7/audio.mp3?utm_source=Podcast&in_playlist=91224201-26a6-429d-ac3c-ae2b0012ff6d

Dave Townsend, a partner at Dorsey & Whitney, discusses the Supreme Court ruling President Trump’s tariffs are illegal. Then Alan Spears, senior director of cultural resources for the National Parks Conservation Association, discusses the suit by the NPCA and other nonprofits to stop the Trump administration from erasing history and science at national parks. And Pat Parenteau, a professor at the Vermont Law & Graduate School, discusses the first lawsuits over the EPA’s revocation of a major climate finding. June Grasso hosts. See omnystudio.com/listener for privacy information.

## Transcript

[0:02] Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
[0:08] Speaker 2: The Supreme Court struck down President Donald Trump sweeping global tariffs,
[0:14] Speaker 2: under cutting his signature economic policy. In a six to
[0:18] Speaker 2: three vote that crossed ideological lines. The justices handed Trump
[0:23] Speaker 2: his most significant legal defeat since returning to the White House.
[0:27] Speaker 2: The majority, including two Trump appointees, found that the President
[0:32] Speaker 2: exceeded his authority by invoking a federal emergency powers law
[0:37] Speaker 2: to impose his global tariffs. Trump lashed out at the
[0:40] Speaker 2: decision and the justices who ruled against him.
[0:44] Speaker 3: The Supreme Court's ruling on tariffs is deeply disappointing, and
[0:52] Speaker 3: I'm ashamed of certain members of the Court, absolutely ashamed
[0:57] Speaker 3: for not having the courage to do what's right for
[0:59] Speaker 3: our country. I'd like to thank and congratulate Justices Thomas, Alito,
[1:05] Speaker 3: and Kavanaugh for their strength and wisdom and love of
[1:10] Speaker 3: our country.
[1:11] Speaker 2: Of course, the three justices congratulated by Trump dissented from
[1:16] Speaker 2: the opinion. Joining me is international trade attorney Dave Townsend,
[1:20] Speaker 2: a partner at Dorsey and Whitney.
[1:22] Speaker 1: Dave.
[1:23] Speaker 2: Chief Justice John Roberts wrote the majority opinion, and it
[1:26] Speaker 2: was basically a textual analysis finding that the text of IIPA,
[1:32] Speaker 2: the International Emergency Economic Powers Act, didn't authorize the president
[1:38] Speaker 2: to impose tariffs. He wrote, when Congress grants the power
[1:42] Speaker 2: to impose tariffs, it does so clearly and with careful constraints.
[1:47] Speaker 4: The Constitution gives Congress the authority to impose taxes and
[1:52] Speaker 4: also to regulate commerce with foreign nations, and that constitutional
[1:57] Speaker 4: context I think was important. Basically all of the opinions
[2:01] Speaker 4: creating a posture that we would expect Congress to speak
[2:04] Speaker 4: clearly if they intended to give that power away via AEPA.
[2:09] Speaker 4: And the part that you read June relates to, you know,
[2:14] Speaker 4: primarily a statutory interpretive question of would Congress have meant
[2:21] Speaker 4: AEPA to give terrorf authority to the executive branch? And
[2:25] Speaker 4: Court answered no, that was not intended by Congress.
[2:28] Speaker 2: The Chief Justice came up with what's been called the
[2:31] Speaker 2: Major Questions doctrine about four years ago. It basically says
[2:36] Speaker 2: that Congress has to explicitly authorize policies that have a
[2:41] Speaker 2: major nationwide impact. How did that doctrine play in this decision?
[2:47] Speaker 4: Roberts uses the Major Questions Doctrine in part to resolve
[2:51] Speaker 4: the statutory question before the Court, holding AIPA doesn't authorize tariffs.
[2:55] Speaker 4: There is a lengthy concurring opinion by Justice Gorsich in
[2:59] Speaker 4: which he goes into depth of the Major Questions doctrine,
[3:03] Speaker 4: and then also opinions from Justice Barrett talking about some
[3:08] Speaker 4: of her differences with how Justice Gorsich applies the Major
[3:11] Speaker 4: Questions doctrine. And then the so called liberal justices who say,
[3:15] Speaker 4: we think traditional statutory interpretation questions, aside from the Major
[3:19] Speaker 4: Questions doctrine allows us to resolve the case. But all
[3:22] Speaker 4: the justices discuss that issue. You know, what is the
[3:25] Speaker 4: Major Questions doctrine? When is it appropriate to apply and
[3:28] Speaker 4: does it apply to the case here?
[3:30] Speaker 2: How important is it that two Trump appointees, Justices Amy
[3:34] Speaker 2: Cony Barrett and Neil Gorsich, and particularly Justice Gorsich, who's
[3:39] Speaker 2: among the most conservative members of the Court and is
[3:42] Speaker 2: usually a reliable vote for Trump, How important is it
[3:47] Speaker 2: that they sided with the majority here.
[3:50] Speaker 4: Justice Roberts has long spoken about the legitimacy of the Court.
[3:54] Speaker 4: You know, I would answer that question June just by saying,
[3:56] Speaker 4: I think Roberts is very pleased to have justices who
[3:59] Speaker 4: are and buy President Trump join him in this landmark opinion.
[4:04] Speaker 2: Where did the conservatives who dissented find authority for the
[4:09] Speaker 2: president to issue tariffs?
[4:12] Speaker 4: So the Descent would have said that the AEPA text
[4:17] Speaker 4: itself is intended to encompass the authority to issue tariffs
[4:21] Speaker 4: and thus upheld President Trump's emergency tariffs. And the language
[4:26] Speaker 4: of AEPA is broad. It uses a lot of authorizing
[4:30] Speaker 4: language for the executive to take various actions, including to
[4:34] Speaker 4: regulate importation, which is the key phrase that was really
[4:37] Speaker 4: at issue here. And you know, I think some of
[4:40] Speaker 4: what the Descent is saying, at least in part, is
[4:43] Speaker 4: reasoning that, well, the President has blocked imports prohibited commerce
[4:49] Speaker 4: under US economic sanctions for decades, citing AEPA, And if
[4:54] Speaker 4: that authority allows blocking and prohibiting, why wouldn't the language
[4:57] Speaker 4: to regulate importation permit a more calibri in response, which
[5:00] Speaker 4: is tariffs, as President Trump chose to use here.
[5:04] Speaker 2: President Trump, who was extremely disappointed by the decision, has
[5:10] Speaker 2: already announced workarounds for the tariffs.
[5:13] Speaker 3: They I will sign in order to impose a ten
[5:15] Speaker 3: percent global tariff under Section one twenty two over and
[5:19] Speaker 3: above are normal tariffs already being charged.
[5:23] Speaker 2: So then will this decision not really make that much
[5:26] Speaker 2: difference to the administration and its trade policy.
[5:31] Speaker 4: I think as a matter of trade policy, that's probably right.
[5:35] Speaker 4: I think that they will and have prepared for this
[5:39] Speaker 4: long enough that they see an avenue for them to
[5:43] Speaker 4: impose tariffs in a way that doesn't really fundamentally change
[5:47] Speaker 4: the map, so to speak, with respect to US trade policy.
[5:51] Speaker 2: Why do you think the Court didn't address the extent
[5:54] Speaker 2: to which importers are entitled to refunds of the tariffs.
[6:00] Speaker 4: That's a tough question and one hundred and seventy page opinion.
[6:04] Speaker 4: The dissent points out that the majority says nothing about refunds,
[6:10] Speaker 4: and you know, if you go through the opinion, it's
[6:13] Speaker 4: all about the statutory interpretation the merits question, not the
[6:17] Speaker 4: remedy question. At the US Court of Appeals for the
[6:20] Speaker 4: Federal Circuit, it had remanded this case back to the
[6:24] Speaker 4: Court of International Trade, which is at the district court level,
[6:26] Speaker 4: for this particular case, to examine whether a nationwide remedy
[6:31] Speaker 4: was appropriate, and it said that intervening authority of the
[6:35] Speaker 4: Supreme Court required the Court of International Trade to look
[6:38] Speaker 4: at that issue. Anew that intervening authority is Trump Vicasa,
[6:43] Speaker 4: which discussed the appropriateness of a federal judge issuing a
[6:47] Speaker 4: nationwide remedy. So I think the effect of the opinion
[6:52] Speaker 4: is they affirmed the Federal Circuit opinion. The Federal Circuit
[6:54] Speaker 4: opinion had told the Court of International Trade to look
[6:57] Speaker 4: at that issue, and that's where we go now with
[6:59] Speaker 4: respect to refunds.
[7:00] Speaker 2: And so to be litigated at the Court of International Trade.
[7:04] Speaker 2: Would refunding be as messy as Justice Kavanaugh says.
[7:08] Speaker 4: The messy language comes from what Justice Barrett said during
[7:13] Speaker 4: oral argument, and Justice Barrett here sides with the majority
[7:17] Speaker 4: to strike down the tariffs, and so Justice Kevnaugh is saying, well,
[7:22] Speaker 4: you know, how do we proceed here? It's going to
[7:24] Speaker 4: be a mess I mean, I think that it's really
[7:27] Speaker 4: unclear what happens next on the refund issue. From my
[7:30] Speaker 4: perspective as a trade attorney, I advise importers about tariffs
[7:35] Speaker 4: all the time, and it's largely automated in the sense
[7:38] Speaker 4: that it's possible for US Customs to look at each
[7:41] Speaker 4: individual import on an entry by entry basis and see
[7:44] Speaker 4: how much innipa tariffs have been paid. So I'm not
[7:48] Speaker 4: convinced it needs to be messy. But it depends on
[7:51] Speaker 4: a lot of things. Now, it depends on how the
[7:52] Speaker 4: administration reacts, depends on how the Court of International Trade
[7:55] Speaker 4: reviews that issue in the first instance, and then potential
[7:58] Speaker 4: appeals from there.
[8:00] Speaker 2: I want to talk about the significance of this decision
[8:03] Speaker 2: outside of tariffs. Do you think we can read more
[8:08] Speaker 2: into this decision? For example, is this the start of
[8:12] Speaker 2: the Supreme Court restraining Trump and his agenda? Could these
[8:17] Speaker 2: principles be used in other circumstances or are they limited
[8:22] Speaker 2: to this specific statute.
[8:24] Speaker 4: It's significant and broad in the sense that these IPA
[8:29] Speaker 4: tariffs have been imposed under a variety of executive orders
[8:32] Speaker 4: for a variety of purposes. You had the global reciprocal tariffs,
[8:35] Speaker 4: you had the Fentnyl related tariffs, you had the RAN
[8:39] Speaker 4: related tariffs imposed with respect to imports from India, and
[8:43] Speaker 4: presumably this opinion says all those terrorists are illegals. So
[8:46] Speaker 4: it's very broad. It is landmark. It's an enormous decision
[8:49] Speaker 4: covering you know, importers who paid between one hundred and
[8:52] Speaker 4: thirty and one hundred and fifty billion dollars. Now what
[8:55] Speaker 4: it says outside the scope of IEPA. I'm not sure
[8:59] Speaker 4: that would get very speculative, and it would be difficult
[9:01] Speaker 4: given what the Supreme Court said that it's ultimately a
[9:04] Speaker 4: statutory interpretive question that they resolved here to really say
[9:08] Speaker 4: that this says anything about the validity of tariffs outside
[9:11] Speaker 4: of a EPA.
[9:12] Speaker 2: And Dave, as a trade lawyer, what are you going
[9:14] Speaker 2: to be looking for after this decision?
[9:17] Speaker 4: You know, I think that one issue will be interesting
[9:21] Speaker 4: to watch now is the reaction not just from importers
[9:27] Speaker 4: and not just from the Administration, but also international trading partners.
[9:31] Speaker 4: We have all these trade agreements that are based on
[9:34] Speaker 4: and you know, the underlying assumption is that AIPA tariffs
[9:38] Speaker 4: apply and that a new agreement has reached between the
[9:40] Speaker 4: White House, the USTR and these foreign countries. You know,
[9:44] Speaker 4: now that the IPA tariffs have been held unlawful, it'll
[9:47] Speaker 4: be interesting to see what happens next. There might not
[9:49] Speaker 4: be a significant change, and I think the administration will
[9:52] Speaker 4: say nothing has changed with respect to those agreements, and
[9:55] Speaker 4: it'll be interesting to see if foreign countries continue basically
[9:58] Speaker 4: to say, yeah, we continue to view those agreements as valid.
[10:02] Speaker 4: Nothing's changed. We're going to keep going as though those
[10:05] Speaker 4: agreements are the bargain under which the US and those
[10:07] Speaker 4: trading partners will will do business.
[10:10] Speaker 2: And on the Supreme Court side of things, it'll be
[10:13] Speaker 2: interesting to see which of the justices show up for
[10:17] Speaker 2: President Trump's State of the Union address on Tuesday, considering
[10:21] Speaker 2: that he called the justices in the majority unpatriotic and
[10:26] Speaker 2: disloyal to the Constitution. Thanks for your insights, Dave. That's
[10:30] Speaker 2: Dave Townsend, a partner at Dorsey and Whitney. Coming up
[10:34] Speaker 2: next on the Bloomberg Law Show. A coalition of conservation
[10:38] Speaker 2: and historical organizations are suing the Trump administration over its
[10:44] Speaker 2: efforts to erase history and science at our national parks.
[10:49] Speaker 4: You cannot erase our history. Yes it is flawed, Yes
[10:53] Speaker 4: it is imperfect.
[10:54] Speaker 2: Philadelphia's mayor praised a federal judge ordering the Trump administration
[10:59] Speaker 2: to restored displays discussing slavery at a site in the
[11:03] Speaker 2: city where George Washington lived as president. Last month, National
[11:08] Speaker 2: Park Service workers used hand tools to pry off thirty
[11:12] Speaker 2: four panels about nine people enslave by Washington. It's part
[11:17] Speaker 2: of the Trump administration's removal of information related to racism
[11:21] Speaker 2: and slavery, sexism and LGBTQ rights, Indigenous communities, and climate
[11:28] Speaker 2: change from the nation's museums, parks, and landmarks. The National
[11:33] Speaker 2: Parks Conservation Association and five other nonprofits are suing the
[11:38] Speaker 2: administration to stop what they call a sustained campaign to
[11:42] Speaker 2: erase history and undermine science from national sites. Joining me
[11:47] Speaker 2: is Alan Spears, Senior director of Cultural Resources for the
[11:51] Speaker 2: National Parks Conservation Association, Alan, will you give us the
[11:55] Speaker 2: timeline of the Trump administration's effort to remove in from
[11:59] Speaker 2: anisation from the National parks?
[12:02] Speaker 5: So when this process got started shortly after President Trump
[12:06] Speaker 5: was re elected and re entered the White House, and
[12:09] Speaker 5: in March of twenty twenty five, he issued an executive
[12:13] Speaker 5: Order to Restore Truth and Sanity to American History, and
[12:17] Speaker 5: that was followed two months later by a secretarial order
[12:19] Speaker 5: issued by Secretary Doug Bergham, Secretary of the Interior, that
[12:23] Speaker 5: essentially operationalized the President's executive order for all of the
[12:27] Speaker 5: agencies in the Interior Department, including the National Park Service,
[12:31] Speaker 5: and so had QR codes placed in national parks so
[12:34] Speaker 5: that visitors could tattle on National Park Service employees if
[12:38] Speaker 5: they found that the interpretation of the site was a
[12:40] Speaker 5: little bit too left leaning or in their view, denigrated Americans,
[12:43] Speaker 5: and that was followed by an order for National Park
[12:46] Speaker 5: Service staff to assess everything in their interpretive inventories, whether
[12:51] Speaker 5: it was related to race or gender, or climate science,
[12:54] Speaker 5: anything that might run a foul of the secretarial Order
[12:57] Speaker 5: or the President's executive order. They were to put that
[13:00] Speaker 5: on a list and submit that list of the Interior Department,
[13:03] Speaker 5: and those lists were filled out and then submitted over
[13:05] Speaker 5: the course of the end of the summer of twenty
[13:07] Speaker 5: twenty five, and then in the fall of twenty twenty
[13:11] Speaker 5: five we kind of went into a hiatus where we
[13:14] Speaker 5: heard some things were being removed, other things weren't being touched,
[13:17] Speaker 5: people were considering what was on the list. And then
[13:20] Speaker 5: we got started with a bang in January when we
[13:23] Speaker 5: saw the National Park Service take down the displays at
[13:26] Speaker 5: the President's House at Independence National Historical Park in Philadelphia.
[13:31] Speaker 5: And we have also seen other signs that were taken down,
[13:34] Speaker 5: a sign on sea level rise at Fort Sumter, signs
[13:37] Speaker 5: about climate change at Acadian National Park, a couple of
[13:39] Speaker 5: films videos at Lowell National Historical Park in Massachusetts that
[13:44] Speaker 5: talked about the pollution of the industrial era and the
[13:48] Speaker 5: challenging work environment for some of those young women who
[13:51] Speaker 5: were working in the mills and Lowell during the Industrial
[13:53] Speaker 5: Revolution in this country. And we've seen signs about Native
[13:56] Speaker 5: history and culture that have been removed from the Grand Canyon.
[14:00] Speaker 5: We're hearing stories anecdotal evidence of the fact that there
[14:02] Speaker 5: is a large list of sites out there, many of
[14:05] Speaker 5: whom have commemorative or interpretive materials that are related to
[14:09] Speaker 5: the African American experience, either slavery or civil rights, that
[14:12] Speaker 5: are on somebody's list. And we may yet see additional
[14:16] Speaker 5: operations coming from the Trump administration, from the Secretary of
[14:19] Speaker 5: the Interior, from the National Park Service to remove or erase,
[14:23] Speaker 5: or censor or sanitize elements of our shared national narrative
[14:27] Speaker 5: as it is interpreted by our National Park Service.
[14:29] Speaker 2: Is it any reference to slavery, LGBDQ rights, climate change, etc.
[14:36] Speaker 2: How are they deciding what's objectionable?
[14:39] Speaker 5: Oh, that's a great question. There is no transparency in
[14:42] Speaker 5: this process. And so, as an advocacy organization, the National
[14:47] Speaker 5: Parks Conservation Association is engaged in the game of whack
[14:50] Speaker 5: a mole where we've got something happening at the Independence
[14:53] Speaker 5: Park in one week, and then something happening at the
[14:56] Speaker 5: medgrin Early Evers Home potentially the next week, and so
[15:00] Speaker 5: so there is no transparency. There doesn't seem to be
[15:02] Speaker 5: any process. And sometimes we've got directives coming down from
[15:05] Speaker 5: above get rid of this, or we've got people in
[15:09] Speaker 5: National Parks who themselves are trying not to get in
[15:11] Speaker 5: any kind of trouble, thinking, all right, maybe we ought
[15:14] Speaker 5: to take that down, or that program that we were
[15:17] Speaker 5: going to have on enslaved people in the underground railroad.
[15:19] Speaker 5: Maybe let's postpone that. But the challenge right now is
[15:22] Speaker 5: we don't have a clear sense of exactly what's happening,
[15:24] Speaker 5: so it makes it really difficult to react to that.
[15:27] Speaker 5: What I can tell you is we know now that
[15:30] Speaker 5: the word transgender has been scrub from National Park Service interpretation,
[15:34] Speaker 5: and we know that it's been scrubbed from the interpretive
[15:36] Speaker 5: arrays at the Stonewall Inn in Lower Manhattan that was
[15:39] Speaker 5: the site of the LGBTQ Uprising in the summer of
[15:42] Speaker 5: nineteen sixty nine that launched the modern LGBTQ civil rights
[15:46] Speaker 5: and human rights era, and that protest, that uprising was
[15:49] Speaker 5: led by transgender activists, and so they have been excised
[15:53] Speaker 5: from the history of an event that they started and
[15:55] Speaker 5: helped to organize and lead. And we are seeing also
[15:58] Speaker 5: at the President's House and other places. It seems as
[16:01] Speaker 5: if there are some folks in the administration who believe
[16:05] Speaker 5: that restoring truth and sanity actually means getting rid of
[16:08] Speaker 5: any references to anything related to race or gender, or
[16:11] Speaker 5: sexual orientation, labor class, women's rights, or climate science. That
[16:15] Speaker 5: makes some people feel uncomfortable. So the idea is, you
[16:18] Speaker 5: take those things out of the interpretive array, and you
[16:21] Speaker 5: can go and have a fine time at any national
[16:23] Speaker 5: park that you want to visit, and you will never
[16:25] Speaker 5: have to learn anything or think critically about any issue,
[16:27] Speaker 5: because we are just going to look at the unfiltered,
[16:29] Speaker 5: unalloyed progress of this country from start until the current
[16:33] Speaker 5: time right now, when it's been nothing but progress, progress, progress.
[16:37] Speaker 5: And I would just round out those comments by saying,
[16:39] Speaker 5: this is an amazing country. We have a broad and
[16:42] Speaker 5: diverse history. It's complex. I think the complexities are the
[16:45] Speaker 5: things that make it interesting. We have joined with allies
[16:48] Speaker 5: to defeat fascism. We have brought inspiration, political, scientific, cultural
[16:53] Speaker 5: to all parts of the globe we've cured dread disease,
[16:56] Speaker 5: and there are times when we have failed to live
[16:58] Speaker 5: up to the better angels of our nature. That's us too,
[17:01] Speaker 5: And so when it comes to national parks and historic interpretation,
[17:04] Speaker 5: we want the full story to be told in our
[17:06] Speaker 5: national parks because we can handle the truth and we've
[17:09] Speaker 5: got to have that truth.
[17:10] Speaker 2: And what are you hoping to accomplish with your lawsuit?
[17:13] Speaker 5: The aim of our lawsuit is to just put a
[17:15] Speaker 5: stop to history eraser and signage removal. Let's stop it,
[17:19] Speaker 5: and then let's see if we can't through other means,
[17:21] Speaker 5: perhaps even legal means, reverse that trend and then repair
[17:24] Speaker 5: what's been lost. So that's the purpose of the lawsuit.
[17:27] Speaker 5: We want to stop any additional signage removal in the
[17:29] Speaker 5: name of restoring truth and sanity to American history international parks.
[17:33] Speaker 2: I take it you're hoping for more rulings like that
[17:36] Speaker 2: from federal judge Cynthia Roof, who ordered the Park Service
[17:40] Speaker 2: to restore the panels on slavery. She found the federal
[17:44] Speaker 2: government doesn't have the power it claims to dissemble and
[17:47] Speaker 2: disassemble historical truths, and she said it echoes Big Brother's domain.
[17:52] Speaker 2: In George Orwell's nineteen eighty four.
[17:55] Speaker 5: That's exactly correct. Yeah, at this point in time, we
[17:58] Speaker 5: have an administration right now that has taken this restoration
[18:02] Speaker 5: of truth and sanity issue too far. And I think
[18:05] Speaker 5: the judge in the ruling for the preliminary injunction spelled
[18:10] Speaker 5: it out that the actions being taken by this administration
[18:14] Speaker 5: related to the Philadelphia case are capricious and arbitrary. We
[18:17] Speaker 5: certainly feel like that's the case nationwide with some of
[18:20] Speaker 5: the things that have been removed. You know, it takes
[18:22] Speaker 5: the National Park Service months and sometimes years to develop
[18:25] Speaker 5: interpretive arrays and signage that get placed in national parks.
[18:29] Speaker 5: They consult with historians and museum collections specialists and ethnographers
[18:34] Speaker 5: and archaeologists and community members and dessendate communities and historians
[18:39] Speaker 5: from outside the agency to get together and develop really good, accurate,
[18:44] Speaker 5: inclusive interpretation that will benefit the public and enlighten the
[18:48] Speaker 5: public and enhance public knowledge about our history. What's happening
[18:51] Speaker 5: right now is it seems that somebody is in charge
[18:53] Speaker 5: of an algorithm that any time it finds anything in
[18:55] Speaker 5: a brochure on a National Park Service interpretive sign that
[18:57] Speaker 5: mentions the word slavery or the LGBTQ. It gets yanked
[19:02] Speaker 5: out or it gets flagged for removal. That's not a
[19:05] Speaker 5: rigorous historical academic process. Again, we've got a very complex story.
[19:11] Speaker 5: We benefit when we're able to learn about where we've
[19:13] Speaker 5: come from and about the breadth and depth of the
[19:15] Speaker 5: contributions that people from a variety of backgrounds have made
[19:19] Speaker 5: to this country to make us the people that we
[19:21] Speaker 5: are today.
[19:22] Speaker 2: So you describe this as a game of whack a mole.
[19:26] Speaker 2: You don't know where in what National Park some information
[19:31] Speaker 2: is going to be taken down. So even if you
[19:33] Speaker 2: get a judge's order, how will that be enforced.
[19:37] Speaker 5: Well, that's a good question. That is also something for
[19:40] Speaker 5: the lawyers and the legal teams to figure out. And
[19:43] Speaker 5: once a ruling is made, we would hope that everybody
[19:45] Speaker 5: would abide by the law and buy the findings. And
[19:48] Speaker 5: the idea is we have, at this point in time
[19:52] Speaker 5: a problem that goes well beyond signage. And I think
[19:55] Speaker 5: that's the challenge that we've got right now and that
[19:57] Speaker 5: we're trying to communicate to the public. So if let's
[20:00] Speaker 5: say the installation about enslaved people that came with George Washington,
[20:05] Speaker 5: and served his family in Philadelphia when he was president.
[20:08] Speaker 5: Let's say those signs are removed and they stay down,
[20:11] Speaker 5: we lose an opportunity at that site to have a
[20:14] Speaker 5: conversation about the issue of slavery and its place in
[20:17] Speaker 5: the founding era of this country. And let me tell you,
[20:21] Speaker 5: George Washington as our president deserves a world of credit
[20:25] Speaker 5: because he's the guy that helped to establish our democratic traditions.
[20:29] Speaker 5: When he got to the end of his second presidential term,
[20:31] Speaker 5: he was standing next to some people who were elbowing
[20:34] Speaker 5: him and saying, you know, General, you know people with muskets.
[20:37] Speaker 5: We know people with muskets. We can keep you in
[20:40] Speaker 5: this position for as long as you'd like to be
[20:42] Speaker 5: the supreme leader of this nation. In Washington, to his credit,
[20:45] Speaker 5: said no, I believe in civilian leadership and peaceful transition.
[20:49] Speaker 5: We're gonna have an election. We're going to let the
[20:51] Speaker 5: next person come in and take over the presidency. So
[20:54] Speaker 5: our democratic traditions extend to George Washington and his ability
[20:59] Speaker 5: to be that self off faith. And he was also
[21:01] Speaker 5: a guy who owned several enslaved Africans. And I think
[21:05] Speaker 5: we need to be at a place where we can walk,
[21:07] Speaker 5: chew gum, and think difficult thoughts all at the same time.
[21:10] Speaker 5: And so what we hope through this lawsuit is to
[21:13] Speaker 5: suggest to the administration and to the people in America
[21:17] Speaker 5: that this is an important issue. We don't need to
[21:20] Speaker 5: erase our history. We don't need to hide from our history.
[21:23] Speaker 5: We benefit all of us by being able to think
[21:27] Speaker 5: critically about things that happened in our past that still
[21:30] Speaker 5: very much influence us to this day. So in that regard,
[21:33] Speaker 5: the lawsuit starts with the notion of stopping history erasure
[21:37] Speaker 5: and signage removal, but it goes well beyond that. It's
[21:39] Speaker 5: a much more important and challenging issue that we're facing
[21:42] Speaker 5: right now.
[21:43] Speaker 2: Alan, I'm curious about something. So websites have been scrubbed
[21:48] Speaker 2: of information about slavery, sexism, climate change, etc. Is that
[21:53] Speaker 2: a raised information stored somewhere so you can restore it
[21:57] Speaker 2: right away when you get a judge's order, or do
[22:01] Speaker 2: you have to go through some other kind of process
[22:04] Speaker 2: to develop the information.
[22:06] Speaker 5: Again, it's a little bit like the novel Fahrenheit four
[22:09] Speaker 5: or five one where the people wander around in the
[22:11] Speaker 5: woods and they've memorized all the poetry and the science
[22:13] Speaker 5: and the literature, and they share those oral histories with
[22:17] Speaker 5: young people so that at some point in time in
[22:19] Speaker 5: the future they can come back and maybe republish all
[22:21] Speaker 5: the books that have been burned. We're not quite at
[22:24] Speaker 5: that stage at this point in time, but we do
[22:26] Speaker 5: have an organization called Save Our Signs, and we do
[22:29] Speaker 5: have people who have taken photographs of websites, screen captures
[22:33] Speaker 5: of websites, so we do have a sense of before
[22:36] Speaker 5: and after, and I think there will be the ability
[22:39] Speaker 5: to rebuild and repair. But I would also tell you this,
[22:43] Speaker 5: there were some reports or some people who suggested that
[22:45] Speaker 5: the National Park Service at the President's home in Philadelphia
[22:49] Speaker 5: were ripping down these displays and maybe even tossing them
[22:52] Speaker 5: into garbage cans. That's not what happened. They were taken
[22:55] Speaker 5: down carefully. They have been put in a place whereby
[22:58] Speaker 5: as they have been ordered by a judge. At some
[22:59] Speaker 5: point in time, we hope to see them restore to
[23:01] Speaker 5: their rightful place at the President's home display on enslaved people,
[23:05] Speaker 5: and so we do have ways that we can recover
[23:08] Speaker 5: this information, even if it has been sanitized or erased
[23:11] Speaker 5: from a website. But the lawsuit that we have initiated
[23:14] Speaker 5: is to make sure that we don't lose anything else.
[23:16] Speaker 2: It's so important to preserve our history. Thanks so much
[23:19] Speaker 2: for joining me, Allan. That's Alan Spears of the National
[23:23] Speaker 2: Parks Conservation Association. Coming up next, the legal fight over
[23:27] Speaker 2: the EPA scrapping a major climate rule. I'm June Grosso
[23:32] Speaker 2: and this is Bloomberg effective immediately.
[23:36] Speaker 3: We're repealing the ridiculous Endangerment Finding and terminating all additional
[23:40] Speaker 3: green emission standards imposed unnecessarily.
[23:45] Speaker 2: It took less than a week for lawsuits to be
[23:47] Speaker 2: filed over the EPA's elimination of the bedrock scientific finding
[23:53] Speaker 2: that greenhouse gases threaten public health.
[23:56] Speaker 3: Don't worry about it because it has nothing to do
[23:58] Speaker 3: with public health. That this is all a scam, giant scam.
[24:02] Speaker 2: The so called Endangerment Finding forms the basis for regulations
[24:07] Speaker 2: to fight climate change, and its revocation could unwind current
[24:11] Speaker 2: air and climate rules. So a coalition of conservation and
[24:16] Speaker 2: public health groups and a group of youth plaintiffs are
[24:19] Speaker 2: challenging the repeal, saying it violates federal law and legal precedent,
[24:25] Speaker 2: and more lawsuits are sure to follow on an issue
[24:28] Speaker 2: that's likely to reach the Supreme Court. My guest is
[24:31] Speaker 2: an expert in environmental law, Pat Parento, a professor at
[24:35] Speaker 2: the Vermont Law and Graduate School. Pat, just how critical
[24:40] Speaker 2: is this revocation of the endangerment finding.
[24:44] Speaker 1: It's huge, and it's ugly, and people do not fully
[24:48] Speaker 1: understand just how devastating this action is going to be,
[24:52] Speaker 1: not just for climate, but for public health and safety generally.
[24:56] Speaker 2: And the endangerment finding came out of a landmark our
[25:00] Speaker 2: Supreme Court case in two thousand and seven, right, so.
[25:04] Speaker 1: It follows on the heels of course of Massachusetts versus DPA,
[25:08] Speaker 1: which is still the law of the land, contrary to
[25:11] Speaker 1: what mister Zelden thinks. And in that decision, the Supreme
[25:15] Speaker 1: Court not only held that greenhouse gas pollution is regulated
[25:21] Speaker 1: under the Clean Air Act, the George W. Bush administration
[25:24] Speaker 1: had taken the position it wasn't regulated, and they made
[25:27] Speaker 1: many of the same arguments that Trump and Zelden are
[25:29] Speaker 1: making now. The Supreme Court rejected those. It was a
[25:32] Speaker 1: five to four decision, and frankly, the majority in the
[25:37] Speaker 1: Massachusetts case is no longer on the court. So that's
[25:40] Speaker 1: what gives Trump some hope here. And then secondly, the
[25:43] Speaker 1: Supreme Court said, since you have the authority to regulate
[25:47] Speaker 1: greenhouse gas pollution, if you make a finding that such
[25:51] Speaker 1: pollution and the emissions that cause it in danger public
[25:55] Speaker 1: health and welfare, you must regulate. You don't have any
[25:58] Speaker 1: discretion to regulate once you make a finding. And the
[26:03] Speaker 1: Supreme Court made it clear that was a scientific finding,
[26:07] Speaker 1: wasn't policy, it wasn't even law necessarily, It was a
[26:10] Speaker 1: scientific determination that this kind of pollution is endangering people's
[26:16] Speaker 1: health and welfare. So the science is absolutely crystal clear,
[26:21] Speaker 1: and the danger is absolutely clear. You can repeal the finding,
[26:25] Speaker 1: you can't repeal the danger.
[26:27] Speaker 2: There are two lawsuits in counting, one by a group
[26:31] Speaker 2: of youth plaintiffs and another by a coalition of health
[26:34] Speaker 2: and environmental groups. Tell us about their claims that the
[26:38] Speaker 2: EPA's actions are illegal.
[26:41] Speaker 1: Well, they're first of all saying that Massachusetts versus EPA
[26:45] Speaker 1: is the law, and as I said, it states very
[26:48] Speaker 1: clearly that EPA has the authority to regulate. So now
[26:52] Speaker 1: Zelden is coming along and saying, well, no, We've looked
[26:55] Speaker 1: at it again through the lens that we use, and
[26:58] Speaker 1: our conclusion is that the best reading of the Clean
[27:02] Speaker 1: Air Act is not the reading that the Supreme Court
[27:05] Speaker 1: issued in Mas versus CPA, but our reading, which is,
[27:09] Speaker 1: we don't have any authority to regulate greenhouse gases. They're
[27:12] Speaker 1: using kind of an originalist argument here. They're trying to
[27:16] Speaker 1: say that because the Clean Air Act of nineteen seventy
[27:19] Speaker 1: was focused on initially localized pollution, the smog that people
[27:24] Speaker 1: were breathing and so forth. But it's not true that
[27:28] Speaker 1: the Clean Air Act was limited geographically. We have multiple
[27:32] Speaker 1: instances where the Clean Air Act has been used to
[27:35] Speaker 1: tackle long range pollution, not just acid rain, but ozone pollution,
[27:41] Speaker 1: small pollution, fine particulate pollution that floats across the United
[27:46] Speaker 1: States from upwind states the downwind states. So this notion
[27:51] Speaker 1: that the Cleaner Act was never intended to regulate anything
[27:55] Speaker 1: in your immediate area of the area you're breathing is
[27:58] Speaker 1: simply flatly wrong. That's never been the law. No case
[28:02] Speaker 1: has ever said that, The Supreme Court has never said that.
[28:06] Speaker 1: Only Zelden is saying that. So the first argument is
[28:10] Speaker 1: there really is no legal basis whatsoever for repealing the
[28:16] Speaker 1: endangerment finding. And of course they also repealed immediately what
[28:20] Speaker 1: we call the tailpipe standards, the mobile source standards, Cars
[28:23] Speaker 1: and trucks and so forth. They are the largest source
[28:26] Speaker 1: of this kind of pollution and a lot of other
[28:28] Speaker 1: pollution as well. So the notion that this isn't a
[28:32] Speaker 1: significant category, that's another requirement of the Clean Air Act.
[28:37] Speaker 1: You have to make a finding that there's a danger
[28:40] Speaker 1: from these pollutants. But then you have to look at
[28:42] Speaker 1: the sources of the pollutants and say those sources contribute
[28:47] Speaker 1: to the danger. But if this is the largest source
[28:50] Speaker 1: of greenhouse gases and these other pollutants, they surely contribute
[28:55] Speaker 1: to the danger. So there's no legal basis, no scientific base,
[29:00] Speaker 1: and there are lots of other arguments for why this
[29:03] Speaker 1: finding is not based on the.
[29:06] Speaker 2: Law, particularly in light of Massachusetts versus EPA. Why do
[29:11] Speaker 2: you think the EPA administrator Lee Zelden took this route.
[29:16] Speaker 1: Selden is counting on the current composition of the court.
[29:20] Speaker 1: As I said, the majority that was in place in
[29:23] Speaker 1: Massachusetts versus EPA is no longer there. It's much more conservative.
[29:28] Speaker 1: So you have to look at can Selden get the
[29:32] Speaker 1: court to take review of this issue and reverse Massachusetts
[29:38] Speaker 1: versus CPA. So this requires basically a headcount. Where do
[29:42] Speaker 1: you get five votes on this court to overturn Mass
[29:47] Speaker 1: versus CPA. You don't have the liberal wing of the court.
[29:50] Speaker 1: You don't have Chief Justice Roberts, who wrote the dissent
[29:53] Speaker 1: in Massachusetts, because he has stated publicly, even though I dissented,
[29:58] Speaker 1: I think Mass versus EPA at this point is settled law.
[30:03] Speaker 1: It's been on the books for nineteen years, right, lots
[30:06] Speaker 1: of reliance on that decision, lots of regulatory actions based
[30:11] Speaker 1: on that decision, lots of industry actions in response to
[30:16] Speaker 1: that decision. So you're not going to get Chief Justice
[30:19] Speaker 1: Roberts vote. So where do you get the fifth vote.
[30:22] Speaker 1: You've got the three or four perhaps ultra conservatives on
[30:27] Speaker 1: the court. That would be Justice Thomas, Justice Alito, Justice Corsition,
[30:32] Speaker 1: probably Justice Kavanaugh, although even that's not sure. So where
[30:36] Speaker 1: does the fifth vote come from? It almost has to
[30:39] Speaker 1: be Justice Barrett, And my view is that she's not
[30:43] Speaker 1: going to go along with overturning Mass versus CPA because
[30:47] Speaker 1: of a doctrine that we call statutory starry decisives. So
[30:52] Speaker 1: once the Court has interpreted a statue, as opposed to say,
[30:56] Speaker 1: interpreting the Constitution, which can change over time, as we've
[31:00] Speaker 1: seen but what comes to interpreting a statue like the
[31:04] Speaker 1: Clean Air Act. The doctrine that that kind of precedent
[31:08] Speaker 1: should not be overruled or at least lightly overruled, is
[31:13] Speaker 1: very very strong, and I think Justice Barrett has the
[31:16] Speaker 1: kind of sort of institutional integrity on the Supreme Court
[31:20] Speaker 1: to respect that. So I don't see how they get
[31:24] Speaker 1: Justice Barrett's vote.
[31:26] Speaker 2: Pat The Supreme Court has surprised us many many times.
[31:30] Speaker 2: So suppose they do get that fifth vote and Massachusetts
[31:34] Speaker 2: versus EPA is overturned, can that be undone by the
[31:39] Speaker 2: next president and the next EPA.
[31:42] Speaker 1: That would have really devastating consequences because it would mean
[31:46] Speaker 1: that a future president could not reinstate the endangerment finding.
[31:51] Speaker 1: Once the Court has determined there is no authority to
[31:54] Speaker 1: regulate greenhouse gases unless Congress steps in, and that doesn't
[31:59] Speaker 1: look very likely. That's the end of the ballgame. That's
[32:02] Speaker 1: the end of federal regulation of climate polluting emissions.
[32:07] Speaker 2: Devastating, so that it seems like there's a danger in
[32:11] Speaker 2: escalating this fight to the Supreme Court.
[32:13] Speaker 1: Oh, I think so. I mean, it's the old adage,
[32:17] Speaker 1: be careful what you wish for. If Trump is successful
[32:20] Speaker 1: in getting the court to agree with them. Then what
[32:23] Speaker 1: happens is the Clean Air Act no longer regulates these pollutants.
[32:27] Speaker 1: But that means states like California are free to do so,
[32:31] Speaker 1: and you can be sure they will. California has already
[32:34] Speaker 1: adopted the most stringent tailpipe standards fuel efficiency standards in
[32:40] Speaker 1: the country, and thirteen other states have gone along with California.
[32:45] Speaker 1: That got overturned by Congress. That's another story, but the
[32:49] Speaker 1: point is, once the Clean Air Act is no longer
[32:52] Speaker 1: an obstacle to state regulation, it is no longer preempting
[32:56] Speaker 1: California and other Blue states from regulating these pollutant not
[33:00] Speaker 1: just from cars, but from lots of other you know,
[33:03] Speaker 1: sources as well, power plants, oil refineries, et cetera. You know,
[33:08] Speaker 1: that creates a patchwork of regulation across the country, chaos
[33:12] Speaker 1: because there'll be litigation over that as well. The one
[33:15] Speaker 1: thing that industry hates is that kind of chaos, that
[33:19] Speaker 1: kind of unpredictability. How do you make investment decisions in
[33:22] Speaker 1: a regulatory environment like that? You know, the one thing
[33:26] Speaker 1: about federal regulation is once it's in place, that's the baseline.
[33:30] Speaker 1: That's what everybody can plan against. And particularly for automakers.
[33:35] Speaker 1: So that's number one. If Trump wins, industry loses. Number
[33:40] Speaker 1: two is the oil companies also lose. Because the oil
[33:44] Speaker 1: companies have been somewhat successful getting state and city and
[33:48] Speaker 1: county lawsuits against them for climate damage. These are the
[33:52] Speaker 1: so called deception cases, public nuisance cases, more recently climate
[33:57] Speaker 1: super fun cases, and so forth, and the oil companies
[34:01] Speaker 1: are making the argument the Clean Air Act preempts all
[34:04] Speaker 1: these lawsuits for damages. So if Trump wins the repeal
[34:09] Speaker 1: of the endangerment finding on the basis that the Clean
[34:11] Speaker 1: Air Act doesn't regulate these pollutants, their preemption argument goes
[34:16] Speaker 1: out the window. So you know, there are two really
[34:19] Speaker 1: bad consequences from upholding what Zelden has done, neither of
[34:25] Speaker 1: which benefits industry, doesn't benefit automakers, doesn't benefit utilities. It
[34:31] Speaker 1: just creates chaos.
[34:33] Speaker 2: I'm wondering if there's a way for the plaintiffs here
[34:37] Speaker 2: to slow walk these lawsuits so that they don't reach
[34:41] Speaker 2: the Supreme Court during Trump's term.
[34:45] Speaker 1: That is the strategy. I think of the environmental groups
[34:50] Speaker 1: that have sued and the blue state attorneys general led
[34:53] Speaker 1: by California and Massachusetts, which is sure to follow here shortly,
[34:58] Speaker 1: I think that's their strategy and slow walk. Yes, there
[35:01] Speaker 1: are some ways to do that. Number One, you can,
[35:05] Speaker 1: you know, argue for a really long term briefing schedule.
[35:08] Speaker 1: Lots of issues here. There were five hundred and seventy
[35:12] Speaker 1: thousand comments on this proposed rule. The APA requires EPA
[35:16] Speaker 1: to respond to those comments. There's no way EPA has
[35:20] Speaker 1: done that in the timeframe that they've been working on that,
[35:23] Speaker 1: so you know they're going to be vulnerable on any
[35:26] Speaker 1: number of procedural issues. So all of that means the
[35:30] Speaker 1: briefing is going to be incredibly detailed. The page limits
[35:35] Speaker 1: are going out the window. You know they're going to
[35:37] Speaker 1: double or triple the normal briefing that you're talking about,
[35:40] Speaker 1: plus the administrative record. You can also be arguing that
[35:44] Speaker 1: the records not complete. Short of it is, there are
[35:48] Speaker 1: strategies and tactics that lawyers can legitimately use to stretch
[35:53] Speaker 1: out the briefing, the argument, and so forth. Whether they
[35:57] Speaker 1: can stretch it out for the full almost three that's
[36:00] Speaker 1: an open question.
[36:02] Speaker 2: So we'll keep watch for the motion practice to begin.
[36:05] Speaker 2: Thanks so much, Pat, as always, best Professor Pat Parento
[36:09] Speaker 2: of the Vermont Law and graduate School. And that's it
[36:13] Speaker 2: for this edition of The Bloomberg Law Show. Remember you
[36:15] Speaker 2: can always get the latest legal news on our Bloomberg
[36:18] Speaker 2: Law Podcast. You can find them on Apple Podcasts, Spotify,
[36:21] Speaker 2: and at www dot bloomberg dot com, slash podcast Slash Law,
[36:27] Speaker 2: And remember to tune into The Bloomberg Law Show every
[36:30] Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso
[36:34] Speaker 2: and you're listening to Bloomberg

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