Setbacks for Environment at SCOTUS

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1:57The Supreme Court has not been what you'd call a friend of the environment with its trend of weakening federal protections. And this term was no different with the court delivering several setbacks to environmental protections. Joining me is environmental law expert Pat Parenteau, a professor at the Vermont Law and Graduate School. Pat, this last term, how much damage did the Supreme Court do overall to environmental protections? I mean, let's say a scale of 1 to 10. Oh, on a scale of 1 to 10, I would say it was a 7. There wasn't any really blockbuster, one single blockbuster decision. There were a series of decisions that went against the environment, you could say, certainly went against the parties that were advocating for environmental protection.

2:47On the other hand, you know, on climate, the Supreme Court actually did the right thing in denying review in the Honolulu case and in two other cases that the red state attorneys general had brought trying to get the Supreme Court to take what's called original jurisdiction over all of these 40-plus climate cases filed by the states and cities and so forth. So, you know, I mean, it's a mixed bag. It's generally bad. for the environment. But there were a few, I guess, small-scale victories. So perhaps the biggest environmental decision of the term was one that involved a proposed Utah railway that's going to transport crude oil.

3:32Right. In the Uinta Basin of Utah, and this is heavy crude. It's a form of crude that has not been actually extracted. And this rail line approved by the Surface Transportation Board was about an 80 plus mile rail line totally within Utah, but it was designed to transport this oil east and all the way to the Gulf Coast to be refined and then either exported or burned in the United States. And, you know, this kind of heavy crude is some of the worst climate damaging fuels you could have. And the question was, you know, when the Surface Transportation Board is considering the impacts under the National Environmental Policy Act, do they have to look at upstream impacts from the extraction, the drilling?

4:21And do they also have to look at downstream impacts of burning the oil in the refineries and the air pollution impacts that that creates? The Surface Transportation Board under Biden did look at those things, the upstream downstream effects, but they did so in a way that sort of acknowledged we don't, as the Surface Transportation Board, have any control over the extraction, the drilling. We don't regulate that, and we don't regulate the refineries. So they did a sort of back-of-the-envelope kind of calculation of what the impacts would be. The D.C. Circuit said that's not good enough under NEPA.

4:54You have to take a harder look at these indirect effects. That has been the law generally under NEPA for, you know, forever since NEPA was enacted in 1970. So there was no big surprise, I think, among those of us who follow these cases that the Supreme Court was going to overturn the D.C. Circuit. But the way it did it, the Kavanaugh opinion, is what's troubling. It basically said for indirect effects that are remote in space and time and over which the agency does not have regulatory authority, those kinds of impacts don't have to be considered. And the court should defer to agencies making those kinds of factual determinations and also legal determinations on whether they have authority.

5:41And then in addition, Kavanaugh said, and oh, by the way, since NEPA is just, quote, a procedural statute, which is true, an important one, but certainly true that it's procedural, it doesn't require a particular decision to be made, but it requires that you disclose what the foreseeable impact of your decision is. But because it's just a procedural statute, courts shouldn't be too quick to either enjoin an agency from proceeding even where there have been violations of NEPA and should not immediately vacate underlying decisions that the agency has made, like issuing a license or a permit or making a grant for a project.

6:20And so, you know, that was a gratuitous slap at the law and a signal to the lower courts, you don't have to take NEPA all that seriously, violations of NEPA. You can look at it and decide, well, it's just not that serious. Nothing is really going to be changed when we disclose these impacts. So let it go. That was very troubling. And so it was eight to zero because Justice Gorsuch recused himself. I mean, why did the three liberals concur in that? They concurred in the judgment, but not in Kavanaugh's weeping opinion, both on, you know, agencies just don't ever have to consider these indirect effects that are, quote, remote in time and space.

7:03The three liberal justices basically said, you don't have to go that far. You know, the only question is, did the D.C. Circuit Court go too far? And the answer to that is, yeah, they did. They were demanding too much in this particular case where the agency had done some consideration and they were just demanding more. And that was a bridge too far. And certainly not agreeing with Kavanaugh's comment about, you know, don't take NEPA violations seriously. So that's why the three liberals concurred in the judgment, but not in the rationale that Kavanaugh advanced. So does this make clear what the lower courts have to do?

7:41No, no. I mean, this is yet another example of the Supreme Court thinking it's clarifying matters. It's not. And, you know, it's going to be up to individual judges across the country. There are over 700 federal judges and more on the way, more Trump appointees on the way. And, you know, Kavanaugh was clear in saying it's up to the courts that are reviewing these actions. You should defer to an agency's factual determinations that these impacts are remote in time and space, but you don't necessarily have to agree with the agency. If there's reason to believe the agency, you know, either has authority to do more about these impacts or that these impacts are really not that remote in time and space, you can imagine, you know, all the different kinds of federal decisions that impact the environment, right?

8:36I mean, it's like there are hundreds of agencies of the federal government that have authority to approve or finance or whatever projects that impact the environment. So, no, I mean, a test like this where you should defer to the agency, where it makes sense to defer to the agency, that doesn't clarify very much. I think we can say for sure that conservative judges will now have more authority, if you will, and more inclination to approve an agency, particularly right now under the Trump administration, approve agency determinations that they really can't consider these impacts. They're too speculative.

9:19So in that sense, it is a signal to the courts to defer to the agencies when they say they can't figure out how to consider these impacts, or they don't know what they could do about them if they do consider them. But I still think there's going to be litigation. I know this, because the public interest groups aren't just going to throw in the towel. They're going to keep testing the authority of agencies to disregard impacts that, again, they're foreseeable impacts. The court in the Utah case didn't say these weren't foreseeable. They just said, well, they're just too remote, And there are impacts that the agency really can't do much about.

9:59So there's going to be arguments about that going forward. Let's turn to the EPA. The court has restricted the power of the EPA in several rulings over the last few years. And it lost again at the court in a case where San Francisco was suing the agency. Right. So San Francisco sued EPA for requiring San Francisco to comply with water quality standards, which are set by the states but approved by EPA. And they are designed to protect beneficial uses of water, fishing, swimming, drinking, boating, et cetera. And, you know, San Francisco has combined sewer overflows that discharge raw sewage into the Pacific Ocean, and they affect beaches.

10:49I mean, this is fecal coliform bacteria and viruses. I mean, this is really bad stuff. It's not just unpleasant, right? It threatens public health. And so, you know, EPA said, look, San Francisco, you've been working on this problem for years, but you're not getting where you need to go. you need to do more. You either need to separate your system, which is very expensive in the billions of dollars, and separate the stormwater from the sewage system and then deal with the treatment problems of each one separately. You either need to do that or you need to come up with some other kinds of mechanisms that don't expose people that are swimming in the Pacific Ocean to getting disease.

11:30But they didn't say specifically, here isn't a blueprint for what you have to do. Alito wrote the opinion for the Supreme Court. He said, that's not good enough. You have to tell permittees like San Francisco and others, industry, agriculture, wide variety of entities that discharge pollutants into the waters of the United States, rivers and lakes, and so forth. You can't just tell them, well, you have to comply with the so-called end result, water quality standards. And, you know, in dissent, Justice Barrett, hooray for her, joining with her sisters, the liberal sisters on the Supreme Court, said, you know, not only is that not what the Clean Water Act says, it's pretty explicit.

12:14It says other limitations required to protect water quality. Well, that's exactly what EPA did here, right? You use technology where you have technology and you use numerical standards for individual pollutants when you can set those. But when you have something like a toxic soup coming out of a city's discharge, you know, those kinds of mechanisms don't work so well. So you're going to have to come up with something more creative than that to protect people and protect the water quality. And in In addition, she said, it's not necessarily a great idea to have EPA dictating to cities and states what they have to do to comply with water quality standards.

12:57Why doesn't it make sense to say you have to do more to comply with these standards? You're violating them. But to give the states and cities some flexibility in how they would do it, you know, keep the pressure on the cities to comply with the Clean Water Act, but don't necessarily dictate precisely what's needed to do that. So that was the San Francisco case. It's interesting that the Supreme Court also denied review in another case called the Puget Sound Soundkeeper case. And the issue there was similar to the issue in the San Francisco case? And that issue was whether or not a state could impose a condition in a wastewater permit that was beyond the scope of the Clean Water Act.

13:43And the Ninth Circuit ruled that, well, that's an interesting question, but the point is that in this case, the entity that's required to comply with the law didn't challenge the permit condition when they could have. And so, therefore, the court applied the doctrine of collateral estoppel and said, you're estopped from complaining about something you could have complained about earlier, and now you can't raise it for the first time in an enforcement action. And the point here is the Supreme Court denied review in the Puget Soundkeeper case. I would have bet they would have taken that case because of the exceeding the scope of the Clean Water Act issue, but they didn't.

14:27So that raises the question back to the San Francisco case. What about all these permits that have these end result conditions in them? Because most, if not all, NPDES permits do have such a condition, right? That's required by EPA's rules that you have a condition in state-issued NPDES permits that have that kind of condition, right? So now, with what the Ninth Circuit has said in the Puget Sound case and what the Supreme Court has refused to review, I predict we're going to see people trying to enforce these end result conditions and arguing that your opportunity to challenge those conditions was when the permit was issued.

15:14And so you're going to have a collateral estoppel argument, which means more chaos, even though, again, Alito thinks by saying you can't impose end result conditions in a permit, that resolves the question. No, it doesn't. It now raises the question of whether these permit conditions that could have been challenged but weren't are still in effect. So there you go. More chaos. Well, Alito thought that the Dobbs decision would end the abortion question. There you go. Coming up next, how the Supreme Court's decision limiting judges from issuing nationwide injunctions affects environmental litigation.

15:55This is Bloomberg. This is the Bloomberg Tech Minute brought to you by ChatGPT. Now with ChatGPT Work. I'm Carol Masser. Social media posts on sleep outnumber those on exercise by 3 to 1 and those on diet by 5 to 1, according to consumer researcher Ryla Global Consulting. And so it may come as no surprise that there are seemingly no limits to what we will do to get a good night's sleep. People are spending on everything from pricey sleep trackers, AI-powered scent therapy machines, to$3 ,000 body temperature-regulating Manosphere-endorsed mattress covers, and couples outfitting totally separate bedrooms.

16:35As Bloomberg's Dina Shanker reports, it all adds up to a sleep support industry that's a$300 million business, with growth coming from functional beverages and sleep powders, even as some experts warn that these products may not be effective and can even be harmful. Despite the spend, 6 out of 10 American adults still don't get the 7 to 9 hours of sleep the credible science says we need. As for experts, they recommend making lifestyle changes, such as getting sunlight and limiting screen time to improve sleep. That's the Bloomberg Tech Minute brought to you by ChatGPT. Put ChatGPT to work on your most ambitious ideas and projects.

17:13Get started at ChatGPT.com today by selecting Work Mode. Available on Plus and Pro Plans. This message is brought to you by Apple Card. Shave ice by the beach. A trip to the state fair. And a throwback flick at the local drive-in. They're more than just items to check off the summer bucket list. They're also opportunities to earn 2 % daily cash back when you use your Apple Card with Apple Pay. Apply for Apple Card now and use in minutes with Apple Pay. Subject to credit approval, Apple Card is issued by Goldman Sachs Bank USA Salt Lake City branch. Terms and more at AppleCard.com. Let's talk about health care for a second.

17:49It doesn't always work the way people expect it to. If you've ever waited on a prescription refill or had a hard time getting the care you needed, you know the feeling. The system should just work better for everyone. That's exactly what the people at Optum are trying to do every day. They're a health care company linking patient care and pharmacy services and using data and technology to drive the whole system so care is connected, not complicated, for patients and providers. Things like making it easier to get care that looks at the whole person, from primary care doctors to mental health support and even in-home care, and then using technology to make sure they all work together.

18:26Technology designed to help doctors spend less time on busy work and more time with their patients. And those prescriptions? Optum is working to bring costs down, save patients money, and make it easier to get refills. Little by little, Optum is helping make healthcare work as one for everyone. Head to business.optum.com to see how. I've been talking to Professor Pat Parenteau of the Vermont Lawn Graduate School about several cases this term where the Supreme Court delivered setbacks to the environment. There was a case involving standing to sue where the justices in a 7-2 ruling sided with fuel producers that were suing over California standards for vehicle emissions and electric cars.

19:12First, tell us, what are California's standards right now? Two things have happened. One, the Congress, the House, and the Senate used the Congressional Review Act to overrule EPA's approval of California's waiver under the Clean Air Act, which would give California the opportunity to set more stringent tailpipe emission standards. And 13 other states, including Vermont and New York, have adopted the California standards. But now that Congress has overruled the waiver, those standards are not in effect. California has sued. Attorney General Bonta has sued. The problem is that the Congressional Review Act says the courts don't have authority to review decisions of Congress to overturn these rules.

19:59That's a complicated legal question. You know, the waiver is really not a rule. It's a waiver. It's a fact-based determination. It's not a rule like you normally see under the Clean Air Act or other statutes, you know, which are uniform and nationwide and general policy, etc. You know, the waiver is specific to California. So the point is, you know, Bonta would ordinarily have a pretty good argument that what Congress did was illegal, but Congress did it. And Congress also said you can't review what we did. So, you know, my prediction is Bonta is probably going to lose that case. In addition, the big ugly bill that I'm going to call it also contains a provision saying you can't penalize car companies for violating what are called the CAFE standards.

20:48This is under a different statute, the fuel economy standards under the Energy Policy and Conservation Act, which was passed during the Arab oil embargo back in Jimmy Carter's time. And, you know, NHTSA, under the Department of Transportation, has set these very stringent fuel economy standards, and the companies are clearly in violation of those standards. And the big, ugly bill has just said, yeah, but you can't penalize them for that. The bill didn't repeal the standards. The companies are still in violation of the standards, but the bill says you can't penalize them for that. So, you know, in two whacks, the largest source of greenhouse gas emissions and many other pollutants, you know, volatile organic compounds and so forth, you know, pollutants that are causing, again, serious public health problems across the country.

21:38But the Congress has, in two strokes, taken out two of the federal regulatory provisions that are designed to deal with emission standards and fuel economy standards, which would improve the performance of the transportation system, not just greenhouse gases, but all these other pollutants as well. So we talked about a bad year for the environment in the Supreme Court. Oh, my God. It was even worse in the Congress of the United States. And now tell us about the 72 decision written by Justice Brett Kavanaugh.

22:35to electric vehicles and hybrid vehicles because it's going to impact their sales, they argue, with some justification, right? But, you know, that's not the kind of injury that the Supreme Court would ever countenance if an environmental organization was making that argument. You'd be thrown out of court on your ear. Trust me, I've been thrown out on my ear for making those kinds of arguments where you're not the direct target of the regulation. But when it comes to industry and corporate interest, you know, the Supreme Court is, it's ole. You know, you're waived into court by virtue of the fact, well, you're a business interest.

23:15You're a serious interest. And even if we might think that some of your claims are exaggerated, and certainly it's hard to tell exactly how and when you're going to be affected by the waiver of the California standard, we're going to let you into court anyway. So it's just, you know, a case of unfair treatment of environmental groups on the one hand and generous treatment of industry groups on the other. This is the Bloomberg Tech Minute brought to you by ChatGPT. Now with ChatGPT work. I'm Carol Masser. Social media posts on sleep outnumber those on exercise by three to one and those on diet by five to one, according to consumer researcher Rila Global Consulting.

23:59And so it may come as no surprise that there are seemingly no limits to what we will do to get a good night's sleep. People are spending on everything from pricey sleep trackers, AI-powered scent therapy machines, to$3 ,000 body temperature-regulating Manosphere-endorsed mattress covers, and couples outfitting totally separate bedrooms. As Bloomberg's Dina Shanker reports, it all adds up to a sleep support industry that's a$300 million business, with growth coming from functional beverages and sleep powders, even as some experts warn that these products may not be effective and can even be harmful.

24:34Despite the spend, 6 out of 10 American adults still don't get the 7 to 9 hours of sleep the credible science says we need. As for experts, they recommend making lifestyle changes, such as getting sunlight and limiting screen time to improve sleep. That's the Bloomberg Tech Minute brought to you by ChatGPT. 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. Let's talk about healthcare for a second. It doesn't always work the way people expect it to. If you've ever waited on a prescription refill or had a hard time getting the care you needed, you know the feeling.

25:15The system should just work better for everyone. That's exactly what the people at Optum are trying to do every day. They're a healthcare company linking patient care and pharmacy services and using data and technology to drive the whole system so care is connected, not complicated, for patients and providers. Things like making it easier to get care that looks at the whole person, from primary care doctors to mental health support and even in-home care, and then using technology to make sure they all work together. Technology designed to help doctors spend less time on busy work and more time with their patients.

25:49And those prescriptions? Optum is working to bring costs down, save patients money, and make it easier to get refills. Little by little, Optum is helping make healthcare work as one for everyone. Head to business.optum.com to see how. As a restaurant genius, I know the experience starts long before the food hits the table. Genius by Global Payments makes it easy. digital menus and price updates in real time. No reprints, no surprises. The kitchen and floor stayed perfectly in sync, so every dish arrives exactly as it should. From game day crowds to memorable meals, big league reliability for any business.

26:33That's genius. Pat, let's talk about the Supreme Court's recent decision curbing federal court's ability to block policy enforcement through nationwide injunctions and how that affects environmental litigation. What did the court leave open there? Well, you know, the case came to the Supreme Court on a preliminary injunction. And, you know, sort of by definition, that means it was a preliminary decision of the court. So one question is going to be, does the ban, if you will, on universal injunctions or nationwide injunctions, as the court describes it, Does that same rule apply at the permanent injunction stage of a case where the court has determined on the merits that whatever action you're challenging is illegal?

27:27It may have even been void of initio, as we say, right? It was never legal to begin with. So would a court also be precluded from issuing an injunction that would have nationwide effect at the final stage of the case, as I say, where the court has determined there's a violation of law. And are you really serious that it would be a violation only in the state where the case was brought and not anywhere else? It may be that that is the rule going forward. That's what I think, you know, people that are commenting in the legal academy and practitioners that, you know, regularly practice environmental law are saying.

28:05So maybe that is the result of the case, that district court judges are never going to be able to issue nationwide injunctions. But if you read the decision and it's fractured, there's a whole bunch of different opinions in the case. So trying to triangulate where do you have five votes and on what, that's still an open question. And certainly as Kavanaugh threw out the option of bringing class actions, you know, so that then introduces the question, well, you know, for birthright citizenship, what's the class? It would be all the kids and offspring, I guess you'd say, in the country that are the children of undocumented migrants, but they were born in this country.