Biden to Rollback Trump on Environment

we must confront and we will defeat. President Joe Biden was clear about the importance of his environmental agenda in his inaugural speech, and then just hours later, he kick started his ambitious climate goals by rejoining the Paris Climate Accord, resending the construction permit for the Keystone Excel oil pipeline, and directing federal agencies to review the Trump administration's environmental rollbacks of the past four years. Joining me is environmental

law professor Pat Parento of the Vermont Law School. Pat, let's talk about Biden's first steps. How important is rejoining the Paris Accord? And have we missed a lot of time? Yeah? We did miss some time, and we've lost some momentum. And some of the commitments that were made in Paris have really not been realized, and China has not followed

through as aggressively as they had indicated. When Obama negotiated with Shigiping before Paris, so we've lost some momentum in some time, but nothing that we can't recapture if we can move fast enough. Biden now has to come up with what are called the nationally Determined Contributions, which is basically our commitment to reduction in greenhouse gases by so before the end of the year, because the next meeting of the cop parties to the convention is in Glasgow,

Scotland in November. So you know, he's got carry, He's got Jeanne McCarthy, he's got a real strong team. In fact, I've never seen a stronger team focused on climate throughout his entire cabinet. So he's got the people, he's got the ideas. A lot of what he needs to do he can do through executive orders and through rulemaking, but of course rulemaking by E. P A and others will take time. But he's got to come up with this number for how we're going to reduce our carbon and

other greenhouse gas footprints. And he's got to convince the other nations of the world that it's real that he can make it happen, either through his own authority or somehow working with Congress. Now that the Democrats at least have a slim really majority in both houses, there's some ability to get some stuff through Congress, including some investments

that we desperately need and clean energy and transportation. So some kind of combination of executive actions and legislation he can work out with Congress is going to have to happen this year. Maybe not all of it in the first hundred days, but certainly within the first year. I think before the meeting in Glasgow, he's got to convince the world that he has the ability to follow through on his promises and make them happen. That's what we've

got to see. The Trump administration pushed through all kinds of new rules environmental rollbacks in its final days, so much so that California Attorney General Javier Bassara sued the Trump administration nine times on Tuesday to combat those last minute environmental rollbacks. How difficult will it be for the Biden administration to roll back the rollbacks, Well, the last minute rollback that just have happened within the last literally

few weeks. Biden can freeze. In fact, his chief of staff has already announced an executive order freezing all of those rollbacks for now, and then they'll be reevaluated by EPA or whatever other agencies you know. In the Department of Interior as a whole bunch of rules, they've got all those leases, you know, like the oil and gas leases in the Arctic Wildlife Refuge and other places. So there are a lot of sort of immediate things that Biden can put a hold on and then reconsider and

dropped eventually, or change one or the other. The ones that are more difficult, obviously, are the rules that have already taken effect, like the power plant rules. The good news there is this amazing decision from the d C Circuit Court yesterday and eighty five page opinion trashing the Trump power plant rules, throwing them out completely, sending ETA back to square one, which gives the Biden administration a terrific opportunity to redesign what used to be the Clean

power Plan. I think we're going to see something somewhat different, maybe a lot different from the Clean power Plant But this opinion that the d C Circuit handed down is kind of a blueprint for how to design a really strong greenhouse gas rule for power plants to replace the really bad rule that Trump came up with. So each one of these issues and rules and decisions, you know, is going to have a different process for how they have to be fixed, and how Trump's rolled back has

to in itself be rolled back. So it's gonna take time, and it's going to have to be done carefully, but it can be done, and eventually, I do think we're probably gonna see a rollout of some of the strongest, well strongest in relation to what Trump tried to do anyway strongest set of rules, and not just for climate, but across the board. You know, Biden's talking about environmental justice issues all the time and sort of racial justice

issues more broadly. So one of the things I expect to see is increasing protection for these communities of color that have been disproportionately affected by pollution for way too long. And he's not just going to focus on these really high profile rules that we've been talking about, but there's a lot of sort of conventional pollution, air pollution, and water pollution. You know, if you think about the flint situation with lead in people's drinking water, that's a pervasive

problem around the country. So I anticipate that we're going to see a lot of activity in the environmental regulatory space over the next four years. Did he cancel the Keystone XL pipeline or he did he just stop it? Well, he canceled it in the sense that he rejected or revoked Trump's border crossing presidential permit, and without that they can't bring the oil in from Alberta. So in effect

it's been canceled. And I just read that the company hasn't a trans Canada has announced that they're stopping construction, and of course that has the the unfortunate effect of putting some We have a lot of work, right, So so Biden has got some fence mending to do with the unions, but he has canceled the pipeline. It's dead. And also with Canada because it puts Minister Trudeau in a bad situation, and also Alberta. Canada said it's prepared

to use every legal means to get compensation. Yeah, that's what used to be NAFTA. It's got a new name now. But that trade agreement with Canada and Mexico in the US does have some provisions in it that might give a claim to the companies and to Alberta, saying you've closed your market for our you know, oil, and that's the violation of the treaty of the compact. And so we'll see how that goes. Right that that's going to be an interesting question is to where that if it

does get filed, where that gets litigated. We'll have to watch for that. Let's turn to the Supreme Court now, because this week the Justice has appeared open to the oil industry's arguments in a high stakes case that will set the course for climate litigation across the country. It's a procedural disput you that centers on a really technical question. Tell us about that question. Yeah, So the technical issue is when the cities and states that have sued the

oil companies in state court. Um, when they do that, the oil companies then come in and remove those cases from state court to federal court. And then the cities and states go to federal court and say no, no, they belong in state courts. Send them back, which is called reman And now the question is when the federal

courts reman these cases back the state court. Is the review of that decision to reman limited to a single ground for federal jurisdiction, which is called the federal officer doctrine. You don't really need to know too much about that. So why is it so important for environmentalists to be

in state court rather than in federal court. The main reason is that the state courts are going to be more disposed to let the case go to trial, and of course in a state court proceeding the jury in these cases, because these are going to be jury cases. They're seeking large damages in the billions of dollars damages from climate change and for the costs of adaptation, building seawalls,

and so forth. And in state courts, those juries, you know, are going to be drawn from a pool of people that are being affected by these these impacts, and and verdicts in state courts don't require unanimous decisions of the juries, whereas they do require unanimous decisions in federal courts. So that's one big difference. Another one is the oil companies think that federal courts are going to be more disposed to simply dismiss the case and not even let it

get to trial. And they're they're they're thinking is federal courts are going to see these claims which are based on a global pollution problem like climate change as really not being something that the court should even entertain that they should be that that's the kind of problem that

only Congress should deal with. And I don't know if all companies are right about that, by the way, but they think they think they have a better chance of convincing a federal judge to throw these cases out than they do convincing these individual state court judges around the country who are much closer to the communities that are being impacted. So explain just just briefly what the Fourth

Circuit did. The Fourth Circuit said, you came to this court arguing that there was the involvement of the federal government directly in the activity that you were engaged in, not just the production of the oil and gas, but the marketing of it, the promotion of it. And it turns out, not surprisingly, there is no federal involvement in that. That's strictly something that the companies do and are in

charge of. So when the Fourth Circuit looked at the question is there really the involvement of the federal government and concluded there wasn't, the Fourth Circuit sent the case back to the state court, and it didn't consider any other grounds for why the case should belong in in in federal court. And that's what the oil companies are

now arguing to the Supreme Court was wrong. They're saying the Fourth Circuit should have led us make a bunch of other arguments for why the case belongs in federal court. And so that's what that's the narrowest question the Supreme Court has to decide. Are they going to let the oil companies make more arguments for why the cases belong in federal court or not? That's that's all. That's that issue um in the Baltimore case. It doesn't get to the real question is their liability, uh, for what the

oil companies have done. The Supreme Court argument, it was pretty clear that none of the justices we're interested in that in trying to reach the ultimate merits of the cases or even in issuing a sweeping decision that all of the cases belong in federal court. There was no no support for that argument from the oil companies that I could hear. So what did you hear of? What did you hear from the justices as to where they

stand on this? I do think it probably looked there's only eight justices because Alito has recused himself because he owns a bunch of conical oil stock. But I do think there's probably a majority to agree that the Fourth Circuit should have allowed the oil companies to make these other arguments. If that's true, then they'll send the case back to the Fourth Circuit to let the oil companies make these other arguments. It will delay the progress of

these cases for sure. They won't be able to move forward in federal court until this is resolved, but it won't end them. It won't be a ruling on the merits. It'll it'll be a delay. It will be costly. It'll be costly for both, by the way, the oil companies and the cities and states. Maybe the oil companies have more money, you know, to spend on this litigation than anybody. I don't know. But it will be costly and it will take time. But it's not going to be the

end of the cases. For the textuals on the court. For example, Kavanaugh, is it all about the meaning of the word order? Yeah, that's what he That's what the at least Kavanaugh Gorcich. You never can tell. With Thomas and maybe Roberts. Roberts is still I think in play from what I could tell. He asked vic Cher, who was arguing for the City of ball some more. He said, I'm going to give you three minutes to convince me

you're right. So that that says, yeah, that says uninterrupted, he said, So that says that he's uncertain, which is, you know, an opportunity to convince him. So we'll have to see. But yeah, I think it's an interesting issue on the textualists point, because both sides are arguing the

same thing, but both sides are arguing the text is clear. Um, you know, the city's the City of Baltimore is saying, it's clear that the only basis for review is this federal officer question, and it's clear that Congress wanted to limit the review of federal courts to just that basis and not everything that the defendants could think of. Whereas Kavanaugh and Gorsets in particular said, well, this word order.

You know, once there's an order issue to remand the case the state court, then you should be able to argue any reason why that order is flawed, whether or not it involves this this crazy federal officer question or not. You should be able to argue in one court, the court, you know, the Court of Appeals, Um, all the reasons why sending it back to the state court is wrong.

So that's where that's where the case turns. Are you just going to look at the issuance of the order and why it's wrong, or are you going to look at the text of the provision in question and congress is intent, which seems to be to limit the basis

for federal removal to this federal officer question. And what was the opposition to that from the liberal justices or was there there wasn't too much the justice so to Mayor said, what about the fact that Congress in two thousand and eleven UM, when it looked at this very

statutory provision, decided not to change it. And the backdrop to that, as everybody was arguing, was a whole bunch of circuit court decisions that were consistent with what City of Baltimore is now arguing again that review is limited to this single question a federal officer and you can't

bootstrap a whole bunch of other arguments into that. So both Soda Mayor and Kagan, we're you know, asking what I call softball question um to vic share that you know, the Council for the city, um, and they just let Vic you know, roll out his whole argument and after that they said thank you. So they were trying to give, you know, the Council for Baltimore every opportunity to explain why they're reading of the statute was consistent with congress Is intent. That's the way I read it. Thanks for

being on the Bloomberg Laws Show. Pat. That's Pat Parento, a professor of environmental law at the Vermont Law School. A fine dating back two decades finally reached the Supreme Court this week. Should the Federal Communications Commission be allowed to relax the limits the ownership of local broadcast stations and newspapers, even though it could lead to a wave of consolidation. Justice Neil Gorse had said that the rules are outdated. We're stuck with rules from the nineties, seventies

that twenty years ago, twenty five years ago. Kyra said, we're outdated, and when when is the FCC gonna be able to try and experiment? But the Third Circuit Court of Appeals had blocked the changes and ordered the FCC to study the impact easing the rules could have on female and minority ownership in the media industry. One problem seemed to be the lack of evidence of what might happen something Justice Stephen Bryer found frustrating. Why in Heaven's

name did you not are groups that support you? Given the tremendous number of people who I'm happy are interested in this, Why aren't there some studies or something? There are ten thousands law professors and economics professors suit look for studies to do. Why isn't there something joining me? Is match Schettenhelm netigation and government analysts for Bloomberg Intelligence. Matt tell us about these rules that the FCC wants

to relax. So this case involves rules that in some cases have been around since the nineties seventies that limit how many stations both TV and radio stations that a broadcast company can own in a local market, so for example, the New York market or the Chicago market. And for years broadcasters have been pushing the SCC to loosen those rules to make the situation more competitive with media like

the Internet. And so this case is really about the FEC's repeated efforts to ease up those rules and let stations own more stations in a local market and also own multiple forms of media. The SEC rules have long restricted the ownership of both newspapers and broadcast stations, as well as the ownership of radio and TV stay stations

by the same company. Now, the same three judge panel of the Third Circuit Court of Appeals has been preventing the FCC from loosening its ownership restrictions for something like twenty years. Why yeah, That's the remarkable thing about this case is that the same three judge panel has hung onto the case for, as you said, over seventeen years, and it's really been two judges of those three, and

there's always been one of the three dissenting. And the main reason has been that these two judges have said that the FCC hasn't done enough to look at how relaxing its rules would impact diversity of ownership. The FCC has long said that one factor it takes into consideration is how broadcast stations would be owned by emails and minorities, and latching onto that, these two judges have said, since you consider that important, FEC, why aren't you doing more

to sure that there is ownership? And these two judges have effectively said you're not doing enough and until you do more to ensure that sort of ownership, we're not going to let you lack the rules. So what's the FECs argument the Supreme Court. The basic argument is that these two judges have sort of gone beyond their jurisdiction, that this is ultimately a policy call, not for judges but for administrative agencies. And the Federal Communications Commission is

passed with balancing a number of factors. One of those factors is diversity of ownership, which these two judges have focused on, but the FEC says there's a number of other things that it also has to consider, and most importantly for this SEC is considerations of competition and the idea that maybe it's best to facilitate broadcasting as an

industry to ease up on these limits. And so the FEC looked at diversity of ownership, but it's balance that against the number of other factors, and it says, ultimately, we as an agency should get to make this call, not two unelected judges from the Third Circuit. And that's the case that the SEC pushed pretty aggressively to the Supreme Court, who is on the other side of this case.

So the cases is being brought by public interest groups that that really have have long emphasized the importance of diversity of ownership, and so they have had great success in pushing their case at the Third Circuit and they continue to present that fight to the court. Tell me, when you look at media ownership, but is it true

that there isn't enough minority or female owned stations. So that's a great question, and that's one of the things that when the FEC did it's rulemaking on whether it should relax its rules, it asked for data on exactly that question, and it said, tell us what is the act and what is the status of ownership of these stations. And the SEC's response after it it went through all that data, we don't have great answers in terms of it got very little in the record in terms of

the impact of reducing its rules. Arts. I think these public interest groups have made the case, and I think it can be documented that there is very limited ownerships by females and by minority owners of broadcast stations. But the real question in the case has been does easing

the rules have any impact on that? And that's where the SEC after waiting through all the data, so we can't say conclusively that relaxing the rules is going to make this situation worse, and we think it will actually have the potential to make it better by improving the

market position for broadcasters. Generally, during the oral arguments, did you get a feel for what the justices seemed most concerned about, what issue was foremost in their minds, so coming into this case, you know, with the Supreme Court choosing to accept the case at all, that was a very good sign, I think for the FEC and for broadcasters, because if the Court was satisfied with what the Third Circuit has done, it could have just let this case

fit and not take it all. The mere act of taking the case suggest there's concerns, and I think the argument supported that we have a six to three Supreme Court in terms of the nominating party of the president, and it's a more business friendly court here. I think what we saw from the argument was exactly what we expected. There was, generally, I think a focus on maybe this Third Circuit Court has gone too far to be sure.

There was some sympathy from Justices Soto, Mayor and Tagan with the public interest group position here, but it's very difficult to see that position earning five votes on Mr Frames Court, and I saw very little from the conservative side of the Suspreme Court in terms of their questions to suggest that there will be five votes to support the Third Circuit here. So, and in fact, it seems as if Justice Neil Gorstch was pretty direct in saying

that the rules are old. He said, we're stuck with rules from the nineties seventies that twenty years ago, twenty five years ago, Congress said we're outdated. He seems pretty vehement about the point exactly. And I think that position is going to carry a lot of weight with the conservative side of the Court, that it's a very uphill

argument for the public interests group to prevail. I do think there's a possibility of a dissenting opinion from Justice So to my or potential Justice Kagan joining her, maybe Justice Briar, But when you look at the other six justices on the Court, it's difficult to envision any of them jumping on board with that position. So it's not impossible.

In the oral argument doesn't assure anything about the outcome, and sometimes we're surprised, but right now, in terms of likelihood, you would say that the SEC and the broadcasters are in a pretty strong position. So what happens now that Joe Biden is president. I mean President Trump had this focus from day one on deregulation, and Joe Biden has a different kind of focus, So what happens at the FCC. That's exactly right. So the next step will be Joe

Biden will name his own SEC chairman. Trump's SEC chairman, A G. Pie is stepping down now, and it will be a difference in appro from this FCC. I don't think the primary focus will be easing ownership rules. I think it's going to be a focus on the sorts of issues that came up at the Court this week. Encouraging diversity of ownership is going to be a big focus for this SEC. At the same time, I do think there is is sort of a bipartisan agreement that

these rules are really old. They are in some cases, you know, decades old, and they do need some updating. So I think even the Democrats at the SEC, and whether the chairman is Jessica ros and Warsaw or Jeffrey Starts, I do think that there will be some support for easing those caps on how many stations you can own. It's not as good of news for broadcasters as it

might have been under a Trumps FCC. I still think winning this case will create some positive momentum in terms of easing those station limits in the years ahead, just not as aggressively as we would have seen under a Trump SEC. So just clarify, everyone seems to agree with you. The Supreme Court is going to rule for the f SEC. Are rule changes then put into place right away? What happens, So yeah, in part, some rule changes will take effect immediately.

So the Trumps FCC did a couple things, as I said, It got rid of the ban on cross ownership of newspapers and broadcast stations. It also got rid of the ban on owning TV and radio stations, and it loosened the rule on how many TV stations you can own in the market. Those changes which the Third Circuit put on hold, those will immediately take affect. The other part of it is that the SEC has an open rulemaking

to go further and to further relax as rules. The SEC is taking comments on that record, and it's really ready to act, but it's been on pause until this court case is resolved. I think after the court rules. The now Democratic led SEC can finish that rulemaking and in theory proceed with easing the caps even beyond what the Trump SEC was able to do. I think the number one focus is likely to be the radio station limits, where we've seen some sympathy from the Democrats to finish

easing those rules as well. So so it's a mixed bag. Some rule changes take effect immediately based on what the Trump SEC did, but we're also likely to see the SEC move had with further relaxation of the rules, just slowly. So let me ask you this man. It seems that just by the nature of what's going to happen that you're going to be able to own more stations in the market, that that will lead to more consolidation in media.

That's right, and the broadcasters make the case that that that can be a good thing in many cases, and in local markets, a number of broadcasters are struggling, and there can be great efficiencies from one company owning multiple stations in a market in terms of the advertising dollars that they can bring in, in terms of the local staffing that they can do in that market. Efficiencies can

be gained by ownership of multiple stations. Now both of that would say, yeah, but what are you losing in terms of a diversity of voices and a focus on different perspectives in your media. There's a risk of lass on that side. Sure, so that's the balancing that the SEC has long been trying to do. But the broadcasters say, look, it's not quite imbalanced right now. There's been too much preservation of these rules that are a little bit out of date, especially with the rise of new media, which

isn't harnessed with any of these sorts of rules. It's not fair and it's not reasonable to expect broadcasters to succeed as competitors if they're harnessed with these sorts of limitations. Were the stations involved here, the broadcasters involved here? Were they what's considered conservative media? Is this a victory for

conservative media? I don't think I would say that. I think this is all broadcast station, all companies that own broadcast station, So it's it really doesn't divide along political lines. This is the entire industry. The National Association of Broadcasters supported this case, and so this is really a victory

for broadcasting. It's not a victory yet. We need to with the court says, but this would be a victory for the industry as a whole because it it gives the industry more freedom to move ahead with, as you said, consolidation. But what they would emphasize is the efficiencies in delivering their service that they've been unable to provide in recent years under these litigations. Thanks Matt. That's Matt Shettenhelm, litigation and government analysts for Bloomberg Intelligence. And that's it for

the sedition of the Bloomberg Lawn podcast. I'm June Grosso. Thanks so much for listening, and remember you can always get the latest legal news on our Bloomberg laun podcast. You can find them on Apple Podcasts, Spotify, and wherever you get your favorite podcasts. You're listening to Bloomberg