Mail Ballots, Open Road Rule & Aftermath of DC Arrest Surge

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1:44Listen to Burden of Proof, Luigi Mangione, wherever you get your podcasts.

1:53This is Bloomberg Law with June Grosso from Bloomberg Radio.

2:02A big win for the Trump administration. The Supreme Court sided with President Trump over his plan to use the Postal Service to impose new restrictions on mail-in voting, at least for now. The court's six conservatives put on hold one of two Boston federal court rulings that have blocked key parts of Trump's executive order from being fully implemented ahead of the November midterms. The three liberals dissented. Joining me is Bloomberg Supreme Court reporter Greg Storr. So, Greg, it's only a 10-page decision. Tell us about it. So it's a temporary decision, and it goes back to this executive order that Donald Trump issued about five months ago.

2:45And this is a challenge to that executive order, and it's important to keep that in mind. The Supreme Court said that executive order, which, among other things, directs the Postal Service to restrict who can get mail ballots, the Supreme Court said that executive order in and of itself doesn't harm anybody. It doesn't harm the states that sued to challenge it. But the Supreme Court said when the government actually issues some rules to implement this, then we'll be happy to reconsider, and then maybe the states will be harmed and they can win their challenge. While the Postal Service has now issued a final rule that would restrict who can get mail ballots, the states are challenging that at a lower court.

3:21So this whole thing may get back up to the Supreme Court very, very quickly. They issued this decision on Monday, but on Friday we had the Postal Service proposing the rules that this decision's about. So that is a final rule that will be formally published on Wednesday. there is lower court litigation about whether that is legal. The states are going to be able to argue in that case that that rule does harm them and they should be able to sue. And then more importantly, they say that rule is well beyond the authority of the federal government, well beyond the authority of the Postal Service. If the district court agrees with that argument, that it's beyond the power of the president, beyond the power of the Postal Service, then we could get a new injunction blocking the rules, and that could very quickly get back up to the Supreme Court again.

4:15So should we look at this decision as a placeholder? It is a placeholder, which doesn't mean that it's not at least a bit of a good sign for Donald Trump. So they accepted some arguments he made. For example, the administration argued that the federal government would be irreparably harmed if the court blocked this executive order. And the Supreme Court agreed with that argument. Doesn't mean to say that he had authority to do it, but it does mean that one key component to how the Supreme Court assesses an emergency application, what's going to be the relative harm on each side, depending on how we rule.

4:53On that point, seemingly six justices in the majority agreed with Donald Trump that he would be hurt if the court blocked this rule. So the opinion says this doesn't mean that any measures that the government takes will necessarily be lawful. Quote, on that score, time will tell. Well, some states are sending out ballots within a couple of weeks. So what's the time the conservatives are waiting for? The timing of this is a real wild card and potentially could be a real problem. So back when the administration filed this application at the Supreme Court, back in late July, they said, we need to implement this executive order by early to mid-August.

5:38We're obviously past that point. And just now the government's going to be able to think about actually implementing that order. The Supreme Court sat on this thing for almost three weeks. It was fully briefed, and the Supreme Court didn't act on it. not at all clear why the Supreme Court waited so long. I mean, they clearly had opinions to write, but by waiting so long, they did sort of create this potential collision coming along where states do need to send out their ballots. The Postal Service rule would require them to put a special barcode on the ballots and the envelopes to designate that these are going to eligible voters.

6:19And that all takes time. And we're getting darn near the point where both the Postal Service and the states are running out of time to do this in an orderly fashion before November. It sounds like this decision is a recipe for confusion and chaos in the midterms. Thanks so much, Greg. That's Bloomberg Supreme Court reporter Greg Storr. This is the Bloomberg Tech Minute brought to you by ChatGPT. Now with ChatGPT work. I'm Carol Masser. Walmart has become a major player in the burgeoning business of quickly fueling electric vehicles, speeding past Costco as well as more established charging companies.

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7:41charging map, and yet it was second only to Tesla among charging networks expanding in the second quarter. That's the Bloomberg Tech Minute brought to you by ChachiPT. Put ChachiPT to work on your most ambitious ideas and projects. Get started at ChachiPT.com today by selecting Work Mode, available on Plus and Pro Plans.

8:06Early morning on a Manhattan sidewalk, a shooting caught on surveillance video. It was an assassination-style killing, and everybody saw it. Now, as Luigi Mangione prepares to stand trial for the murder of UnitedHealthcare CEO Brian Thompson, which he denies, a new podcast series from ABC Audio and 2020 goes inside this captivating case. I'm ABC News legal analyst Brian Buckmeyer. Listen to Burden of Proof, Luigi Mangione, wherever you get your podcasts. It's called the roadless rule. And for the last 25 years, it's prevented the building of roads and commercial logging on 58 million acres of unspoiled national forests.

8:53But now the Trump administration is proposing to repeal the rule in full, a move that will bring litigation from environmental groups like Earth Justice, which has been successfully defending the rule in court for decades. Joining me is environmental law expert Pat Parenteau, a professor at the Vermont Law and Graduate School. Pat, explain what the roadless rule is and what it's accomplished over the last 25 years. So this is a rule that was adopted under the National Forest Management Act in the Clinton administration, right at the very end of the Clinton administration in January 2001. It covers 30 % of the national forests that represents over 58 million acres of literally unspoiled wilderness.

9:46This has been hailed as one of the greatest conservation moves, probably outside of what Teddy Roosevelt did in the early part of this last century. And it is the stronghold for hundreds, literally hundreds, of endangered and threatened species. And you think about the big carnivores, the wolves and bears and pumas and cougars, even jaguars. You know, we do have some jaguars right at the very southern border, and they're in the Coronado National Forest. So incredibly valuable for watershed protection. 25 million Americans get their water supply coming off of these watersheds that don't have to be gone through enormous treatment, expensive treatment and so forth.

10:38So very important to Native Americans, not only in the lower 48, but in Alaska, on the Tongass National Forest, one of the largest intact boreal forests that we have, and so forth. So incredibly valuable natural resources. The rationale for repealing this rule is to fight fires. And one thing we know for sure, when you build roads, you're going to get fires. 90 % of fires are ignited by humans, people throwing their cigarette butts out of the car, not putting out their campfires, etc. So, you know, if you want wildfires, then build more roads, because that's what you're going to get. So there's lots of other problems with what's being proposed.

11:24You know, there are 368 ,000 roads already in national forests. Most of them are unsafe. They're deteriorating. They're prone to landslides. erosion and sedimentation, etc. So, you know, one of the reasons for the roadless rule was to stop spending money on new roads when we can't even take care of the roads we already have. So there you go. Is the real reason behind this from the Trump administration for the executive order, is the real reason that they want more timber? Yeah, he issued an executive order, one of, of course, many early in his term, in which he said, we need to increase timber production on the national forests.

12:07All these environmental laws, endangered species protections, etc., are costing us, you know, loss of revenue and having to rely on, can you believe it, Canada for our timber products, which, and we hate Canada, apparently. Yeah, so, you know, it's all about mining and timber production and so forth. And the answer is the reason that these areas haven't been timbered and haven't been roaded is because they are incredibly remote and expensive as hell. And the timber values outside of maybe the Tongass National Forest, which, you know, admittedly has incredibly valuable timber. But, you know, in the lower 48, the timber revenues probably won't offset the economic costs of building these roads and also the impact on local communities that depend on access to these pristine areas, namely ecotourism.

13:09There are studies that show that loss of revenue will outweigh whatever expected revenue you get from timber sales. So the USDA said in the statement that across the country we've watched preventable conditions, overgrown stands, insect outbreaks and disease turn healthy landscapes into tinderboxes. And it said its repeal would allow individual forest managers to make decisions tailored to the land they're overseeing without mandating road building or timber production. So here comes the inconvenient truth. The roadless rule allows access to thin the forests, to conduct prescribed burns, to take whatever measures the Forest Service people on the ground think are necessary to prevent and control wildfires.

14:04The rule does not do what the Trump administration says it does. Doesn't. You can look at it. You can read it. Those exceptions are there. Pest control, same thing. You build roads, guess what's going to happen? You bring cars and trucks and logging vehicles into those areas, they'll spread invasive species and pests all over the place. That's what the data shows. So no, the rule itself allows what's necessary. It doesn't allow industrial scale logging, which is what the administration wants, but it does allow sensible fire control measures. Revoking this rule is the greatest threat, you know, destroying the beautiful forests, or is it the habitat and endangered species?

14:56I mean, what's the greatest threat? You know, I think the water supply situation is the one to really focus on. And if you're thinking about all the forest lands in the western United States, is water a problem out there right now? It sure is. So this is really the hidden cost of what's being proposed. Because again, when you have intact watersheds, right, that are fully functional ecologically, That means your water supply is more reliable. What are trees, after all? They are enormous straws. They take up water. They release water. They are part of the hydrologic system of the western United States.

15:42So you want to erode these areas, log these areas, spread herbicides and pesticides and firefighting chemicals all over the place into these areas that don't need it right now. And you are going to really impact water supply. So, you know, the impetus for the rule primarily was not water supply and water protection when it was started. I mean, that was part of it, but it wasn't the central part of it. Now, the administration is talking about, well, conditions have changed on the western landscape. Well, hell yes, they've changed. Climate change is driving these catastrophic wildfires and water loss, interruption of snowpack and all the rest.

16:27So, you know, at a time when we desperately need functioning ecosystems, they want to tear them apart. This rule goes to public comment for 30 days. but does the Trump administration ever follow the public comments? No, it's all for show. And by the way, the original rule, the public comment period was 60 days, twice what this one is. And there were over 400 public meetings. And by the way, I argued the roadless rule in the Ninth Circuit. So the reason I get kind of worked up about these issues is because it's personal, You know, so anyway, when we were doing the research on the argument in the Ninth Circuit back in 2002, we found out all these facts.

17:13So there was an enormous amount of public outreach and participation before that rule was finally adopted. This one is being ramrodded through the process. And I predict the courts are going to see that. And, you know, the administration is going to have a very hard time justifying what they're doing. You know, we've had decades of litigation. About a dozen lawsuits have been brought against the roadless rule. The first one was the one I argued back in 2002. But since then, there have been countless arguments. All of these issues have been thrashed out in the courts. And guess what? No court has ever permanently enjoined the roadless rule.

17:58It has survived multiple attacks. I think it's going to survive this one, too. Yeah. Earth Justice Drew Caputo, vice president of litigation, said Earth Justice has successfully defended the Rodolfs rule in court for decades. Nothing will stop us from taking up that fight again. And I, as we say, it'll end up in court because they'll try to push this through. You know, when the Forest Service put out what they call the notice of intent to prepare an environmental impact statement, this was within the last year, they got almost a million comments just on that. And the Forest Service said this in the draft impact statement that they've now issued.

18:41They acknowledged 99 % of the comments oppose repealing the rule. that tells you the battles to come are going to be ferocious. These places have, you know, very, very loyal, intense supporters. And, you know, this will not stand according to the people that love and care about these places. But the governors of Montana, Utah and Wyoming praised the repeal of the rule. Yeah, right. Well, those are MAGA Republicans. So, OK, I'm not surprised by that. I would like to know what the people of Montana feel in terms of what their support for public lands and these areas are. It'll be divided. I understand that there is, you know, high emotions on both sides of this kind of an issue, right?

19:37There are people that want the control over these lands, you know, people who want to exploit them. but also people that just don't like the federal government, period. So those are ideological, cultural arguments. I'm just addressing the legal aspects of the case. And the rule is on absolutely solid legal ground, and the proposal to repeal it is not on solid legal ground. Are they moving faster in the second administration? Are they better prepared this time around? I think they're showing what I would call facile sophistication. Okay. I mean, so the USDA, which oversees the Forest Service, is articulating this policy decision as the president has the power to change policies regarding management of national forests.

20:34That is true. And they're trying to say this is just returning control to the local Forest Service officials, right? So on the surface, it sounds awful rational. But here's the thing. What they're not saying is what has the rule really done to make forest management more difficult? They don't make a strong case, in my view, for that. There are 600 district rangers. So this idea of returning control to those people, that's what they're talking about. These Forest Service district rangers, right? Well, that means there are going to be 600 different decision makers, and that just means you're going to have more conflict, more controversy, more litigation, because you're dispersing the decision making authority across a huge landscape.

21:37And each one of these individual rangers is going to be trying to figure out what am I supposed to be doing without national guidance, without any national guidance. I'm supposed to figure out whether to put a road in here or not. So I don't think the rationale that this is just, you know, returning control where it belongs is going to pass muster. It's going to lead to more chaos, more conflict. During his first administration, how much did he make in ways into, you know, opening up the national forests? Not at all. I mean, this was not a major impetus of his first administration. I mean, there are lots of things that this is all goes back to the Project 2025 textbook or rule book.

22:24And so he's paying heed to the Western constituents that he has been. And there are obviously a lot of very strong Republican states and districts in the West. And they've had a long term, fractious relationship with government, you know, federal agencies that manage public lands. You know, they like the idea of having public lands. They just want to be able to exploit them more than the Forest Service has been allowing, like this rule. So, you know, that's what he's playing to now. It's a shrinking base, but it's still strong enough that it controls his policy making. The Trump administration has taken many steps to reshape and shrink the scope of federal environmental protection.

23:16Each of those steps has been met with a flood of legal challenges from companies, environmental groups and state officials. So far this summer, the Trump administration has been losing more than it's been winning in court. Over the past three months, federal courts nationwide have delivered rulings in several cases centered on attempts by the EPA to terminate billions of dollars in climate grants and roll back Biden-era air policies. And in more than half of those cases, the judges have decided against the agency. Some of those lawsuits remain unresolved, and the EPA is looking to appeal some of the cases it lost.

24:00According to an EPA spokesperson, the Trump EPA is committed to following the law and courts have affirmed our rules and actions in a variety of contexts. These wins rarely get the same attention in the media as short-term losses. I've been talking to environmental law professor Pat Parenteau of the Vermont Law and Graduate School. Pat, do you see any pattern in these losses by the EPA? You know, the cases that have succeeded have all dealt with whether or not there's any merit to what the administration is doing in freezing and canceling funding. By the way, a lot of these funds have actually been deposited in banks, and so they've issued orders against the banks dispersing the money.

24:50They're under contract. You would think that an administration would honor the contracts that the government has entered into. Maybe they wouldn't enter into any more of those kinds of contracts, but having done so, what kind of trust does that build in government decision-making? The cases that have lost, by the way, have lost on jurisdictional grounds. In other words, the judges have said, these kinds of cases don't belong in my court. They belong in what's called the Court of Federal claims, because they should be brought under what's called the Tucker Act, right, which does vest this particular court of claims with exclusive jurisdiction when you're trying to recover money from the federal government.

25:38So there is this thorny sort of jurisdictional question of where do these cases belong? But that doesn't mean that the claims that the government has unlawfully breached these contracts and these agreements, that doesn't mean that they're wrong. It just means you should be going to a different court to lay your case, right? And then, of course, there's Congress coming into the picture and saying, in some instances, yeah, we agree that what the Biden administration did with these grant programs is wrong, and we're going to repeal them going forward. But that's a prospective kind of change. So there you are.

26:22I mean, did the Biden administration follow the rules? They did, as far as I know. Nobody, you know, the Trump administration is not saying, or if they are, I don't think they've got a court to agree that what the Biden administration did was illegal. They're just simply saying we don't agree with it. And we don't want this money being spent on renewables and environmental justice and climate justice. We don't want that kind of DEI woke kind of expenditures being made. And so we're going to stop them. And as usual, they're going to say, if the courts try to stop us, we'll just keep appealing until we run out of the appeals that we can have.

27:04So in these instances, instead of, you know, proposing a new rule and going through a notice and comment and all that, they just try to find a different way How long does it take for the government, the federal government, to put a rule in usually? Like, how much time are we talking about that they're trying to save? Oh, it can easily be a year. Oh, it can. If you really follow all the steps that are required, a year or more, on a big rule, it could be multiple years, right? For these kinds of decisions, though, you know, you could probably do this in six months, but you would have to allow comment.

27:40You know, there's a lot of different steps. There's a Regulatory Flexibility Act that requires an economic analysis when you propose a rule, and you'd have to notice it in the Federal Register and allow comments. So, yeah, I mean, there are steps that this administration doesn't want to take, but if they wanted to do a lot of the things they're doing, if they follow the process, cross the T's and dot the I's, they could probably do a lot more, not as fast as they want to, and maybe not as much, you know, given the fact that they're already two years in to their term almost. They wouldn't be able to accomplish as much, perhaps, but, you know, that's the law.

28:23Now, the EPA has had more success in court with smaller deregulatory moves. And going back to the roadless rule for a moment and the Trump administration's attempt to open up the forests to roads and commercial logging, etc. Are they moving faster in the second administration? Are they better prepared this time around? I think they're showing what I would call facile sophistication. Okay. I mean, so the USDA, which oversees the Forest Service, is articulating this policy decision as the president has the power to change policies regarding management of national forests. That is true. And they're trying to say this is just returning control to the local Forest Service officials, right?

29:20So on the surface, it sounds awful rational. But here's the thing. What they're not saying is, what has the rule really done to make forest management more difficult? They don't make a strong case, in my view, for that. There are 600 district rangers. So this idea of returning control to those people, that's what they're talking about, these Forest Service District Rangers, right? Well, that means there are going to be 600 different decision makers. And that just means you're going to have more conflict, more controversy, more litigation, because you're dispersing the decision making authority across a huge landscape.