Can Biden Reverse Trump Environmental Damage?

would during any national emergency, and from this crisis. From these crisis, I should say, we need to seize an opportunity to build back and build back better than we were before. But after four years of the Trump administration's climate denials, reversal of climate policies, and rollback of more than one hundred environmental regulations, Biden is starting from behind. Joining me is environmental law professor Pat Parento of the

Vermont Law School. Pat, how would you describe President Trump's environmental legacy? That's easy. This was the worst administration in history. No administration comes close to the kind of attempt at damage that the Trump administration has done to our environmental laws and institutions, not all of which has been successful. And we need to remind ourselves that much of what Trump has attempted to do can be reversed by the

Biden administration, not maybe right away. Some of it's going to take longer than we might like, you know, rulemaking take one to two years on average, But there are as an awful lot of things that Biden can do very quickly, including rejoining the Paris Agreement and probably restoring protections for places like the National Monuments and maybe the

Arctic National Wildlife Refuge in places like that. And then in other cases, a lot of what Trump has put into motion or even concluded in terms of rules and policies have been challenged in court, and as we've talked before, the Trump administration has one of the worst track records in court of any administration, something like their cases they've lost according to the Institute for Policy Integrity, anyway, and so all of those cases that are still pending in court,

the Biden administration can come in and either negotiate a settlement of the cases or simply confess that the decisions that were made by Trump were unlawful and flawed in a number of ways, and therefore the matter should be remanded to the Biden administration for correction. So a lot of the damage that Trump has left us with is

really opportunities lost. You know, we should have been making steady progress on climate change mitigation and air and water quality improvement and a lot of things that we've got backwards on, or at least not made any progress on in the last four years. So that's probably the single

biggest legacy. That plus hollowing out some of the institutions like p A, crippling their scientific capability, stacking the advisory boards that are supposed to be objective scientists with industry representatives for example, demoralizing the staff of e p A so that many of them have left, and a lot of the institutional memory has been lost, at least for now, So rebuilding these institutions is going to take some time.

I remember that in the Reagan years we had some similar setbacks, and I went to work for e p A actually during the Reagan administration when Bill Ruckles House was restored as the administrator of e p A, and I was enlisted to help revitalize the enforcement program at e p A, and it took, you know, several years to do that. So that's what we're looking at now for the next four years is repairing, rebuilding, restoring, and

then hopefully making some serious progress. So is there anything that the Trump administration has done that can't be undone. I don't think so. You know, undoubtedly there is more carbon dioxide in the atmosphere today than there would have been, certainly if Hillary Clinton had been elected. So that's permanent. The amount of emissions that could have been avoided and prevented, we can't get those back. And some of the damage from air pollution and water pollution, at least in the

relatively long term. That is, it's going to take a while to undo some of the pollution that occurred. For example, when Andrew Wheeler, the EPA administrator, declared that because of COVID, industries were no longer going to be required to comply with their permits. If you remember, we went through about

four months of this immunity order that he issued. You know, that pollution that was never monitored and measured, So we don't know actually today how much pollution went into the air and went into the water during that period of rates, if you want to call that that Wheeler gave the industry. So there are some things like that where you can't undo some of the damage. But I don't think those kinds of impacts are as serious as the failure to

really make meaningful progress on transitioning to cleaner energy. If to Clean Power plan that Obama had created had been implemented and the fuel economy rules that Obama put in place had been honored, we would be much further along on the path of clean energy and cleaner transportation systems than we are now. So those kinds of lost opportunities are really hard to recapture. But but that's what we're facing. A President Trump took action to shrink some of our

national monuments. Can that be easily reversed? Yes, we're talking about Bears Ears and Grand Staircase Escalante, which are these two magnificent monuments in Utah on Colorado, and they really are spectacular. I've I've actually visited both of them, and with dev Holland, the first Native American to be nominated to be Secretary of Interior, assuming she's confirmed and she is a member of Congress, so at least she has

that going for her. There's no question, but what the original boundaries that President Obama had established for those two monuments will be reinstated. In fact, bears Ears will probably be the first one because she has a very close connection to that, being a Native American herself. That one can probably be done within the first hundred days. Grand

staircase may take a little longer. It's much bigger, and you know, Biden is going to have to pay attention to the politics as well as his legal authority to restore the monuments. I think he's going to have to reach out to some of the communities in Utah, in Colorado that were supportive of what Trump did and reducing

the boundaries. I don't know exactly what he's going to be able to do to mollify them, but I don't think he can just simply ignore some of the political fallout of reversing Trump policies because they were popular in rural America and they still are. We have to take account of that. You know, Trumpism is still alive. Seventy four million people voted for it. Many of them are in its western rural communities where these monuments are located.

So you know, Biden is going to have to figure out how he can offer those communities some kind of program or assistance of some kind to offset what they think will be taking back something Trump gave them. Let's talk about the team that Biden has put together to handle the environment. What's your take on the team and the new wep administrator in particular. Yeah, the very talented group of people he's bringing into the administration. Of course,

some of them are familiar faces. The new EPA administrator, on the other hand, is not a familiar face. Reagan, who's the head of the North Carolina Environmental Department. I would say it was not really on many people's radar. I mean, he's a black man, so it's pretty obvious that President elect Biden owes his election frankly to the black community largely. I mean, it's brought it than that, but that was that was the impetus, the big vote

turnout for him. So it's not just a matter of paying back, if you will, the groups that put him in in the in office, but it's also looking for talented people in those communities, those environmental justice communities, and I think he's picked a good one was Reagan Um and then of course he brought GENA. McCarthy back as climates are kind of an unfortunate term. Perhaps on the domestic side, and of course John Kerry as the climate

envoy on the international side. That those are two of the strongest I think possible people you could have in your administration on climate issues. UM. And then c e Q. He's brought in another black woman who was formally was to and d P A m and who was with the Sudden Environmental Law Center UH for for many years and and UH so that's another strong edition dev Holland and interior um is the first time UH pick for that position, and so forth. So I think I think

the team has a lot of experience. UM. Some have more Washington, d C. Experience and some have more outside the Beltway experience, and that blend, that combination is is probably a good thing. UM. I think, you know, being in touch with what states have been doing, UM, like North Carolina on environmental justice issues. They have a lot of big problems in North Carolina with these massive factory farms, these hog farms that have caused tremendous pollution in black

communities and so forth. So you know, he's being true to what he campaign and he made environmental justice a major focus and he's following through on that. And of course with Kamala Harris at his side, I think we can be sure that we're going to be seeing even more of that kind of focus. Now we don't know the result to the Georgia elections yet, but if the Democrats don't gain control of the Senate, will Biden have to achieve most of his environmental goals through executive action. Yes,

that's everybody's thinking, and I think that's true. On the other hand, you know, with this recent COVID package which Trump finally signed after dilly dallying and delaying and costing people some money, there were two pieces that the Democrats managed to slip into that bill that we're climate related, and they were important. One is a phase out of what we call these super pollutants hfc's. These are refrigerants primarily and fire fighting chemicals, and there are a combination

of what we call ozone deplets. They're the kinds of chemicals that break down the ozone layer that protects us the multi violent radiation. But they're also very potent global warming pollutants and thousands of times in fact, more potent than c O two. And so that was amazing that they have now committed the United States under what's called the key Gali amendment to the Montreal Protocol to phasing out these very dangerous hfc's and replacing them over a

fairly quick period of time. So that's the big deal in terms of climate. And then in addition, an extension of a lot of the renewable energy tax incentive, the production tax credit for example for solar, that was also included.

So the point is, I think Biden is going to look for those kinds of opportunities with Congress not trying to pass a big cap and trade bill, which Obama tried to do, probably not enough votes for that, but using these big money bills, budget bills, defense bills, you know, these what they call must path bills, using those as vehicles to negotiate improvements energy and transportation systems and so forth.

I think we might be optimistic and thinking that Biden is going to be able to score some fairly significant victories. Not as much as we need. Everybody knows that we need a lot more than we're willing to do right now for climate, but I think he's going to be able to get some legislative victories. But mostly what he's going to be doing, certainly for the first two years, is repairing the damage that Trump has done and reversing the rollbacks as they're called that Trump put in place.

Could the new conservative majority on the Supreme Court make it more difficult for Buying to institute some of his environmental goals. Yes. In short, yeah, we all have to take account now of the fact that the six to three conservative majority on the Supreme Court is the most conservative court that we've seen, certainly in my lifetime. And it's a court now where Chief Justice Roberts is no longer the swing vote. You don't need his vote in

order to reach a very conservative outcome. When it comes to environmental cases, the issues are going to be you know, how far can the Biden administration go in interpreting our existing laws, like the Clean Air Act, in ways to aggressively pursue carbon at greenhouse gas pollution. That is going

to be a real challenge. Again, We're probably not going to be able to go as far as the Obama administration wanted to go in using its Clean Air Act authority, at least as regards to things like power plants, which are integral to the way states produced their electricity, brought their economies, and so trying to use federal laws and regulations to control that vast electricity system in the country is difficult, and the conservative Supreme Court is going to

be skeptical of e p A's power to really sort of reorganize the way electricity is produced and distributed across the country. But where it comes to things like fuel economy standards for mobile sources for cars primarily, but also you know, light trucks and other vehicles, passenger vehicles, you know, that's traditionally a federal responsibility because you don't want to have the fifty states deciding individually what kinds of fuel

economy standards to have. The industry wouldn't be able to cope with a situation where you had fifty different standards, right, So there's a situation where having a single uniform national standard for fuel economy does make some sense, even I

think to some conservative justices. So what that means is Biden is going to have picked targets and he's going to have to decide which kinds of measures can he take to address climate in particular, but other things as well that have the best chance of convincing a conservative court that his administration is not acting outside the bounds of the laws and the authority that they've been given

from Congress. The big thing that the conservative justices are skeptical about is the growth of the administrative state, you know, having these quote unelected bureaucrats making up laws as they go or overreaching the authorities that they've been given. So the conservative justices are going to sort of police the boundaries of administrative authority very rigorously and with sort of

a strict construction as kind of approach to things. So Biden is just going to have to understand that and craft the rules that he adopts with that in mind, and then take his chances, because you know, you never know exactly how these cases are going to come out, because the courts are continually surprising us with decisions that the conventional wisdom has been proven wrong over and over again.

So that's another aspect of using your regulatory authority wisely, but taking some chances and not knowing for sure whether what you're doing is going to pass. Muster with five votes on the Supreme Court, I don't think Biden can administer effectively by worrying that maybe he's gonna lose in the Supreme Court. He's got to take that into account and weigh the risks of that. But in the end he's going to have to take some actions and then just see how it plays out. Thanks Pat. That's Pat

Parento of the Vermont Law School. As the US braces for a new wave of COVID nineteen infections, the government's top infectious disease Dr Anthony Fauci, says the country's vaccination rate is lagging. The government is managing distribution of fiser and madernash with the goal of getting twenty million doses

distributed before early January. Vaccinations in the US began December fourteenths with healthcare workers, and so far only two point thirteen million doses have been administered, according to a nationwide tally from the Centers for Disease Control and Prevention. But even if vaccines are available, there's the question of who

will refuse to get them. Gallipole published last month shows that about four and ten Americans would not take a vaccine approved by the US Food and Drug Administration, suggesting the availability of shots won't guarantee that workers will take them. Joining me as Bloomberg Law reporter robert Ia Fola, who covers labor and employment law, There's been so much talk about when the vaccines will be available to different groups, but a gallop pole shows that a lot of Americans

don't want to get a vaccine. Yeah, there's been a shift that you can see in the public calling from the all to the point that we're at now where the vaccine is being made available to the healthcare workers first before they start being made available to other workers. There was pretty pronounced resistance that was reflected in polls again in the fall. But you're seeing that UM reduced as time goes on. But there is still UM some resistance to me in the population as reflected in the polls.

So can employers require their workers to get vaccinated as a general matter? The answers. Yet, Um, there's nothing particularly new about workplace mandates for vaccines. Let's say in the healthcare industry. Um, you know, some hospitals will require workers to get bactated against things like influenza, UH, meatles, months, rebella, these sort of things. Um. The situation is slightly different here with the COVID nineteen vaccine UM, in part because

of how it was approved. The FDA used its Emergency Use Authorization UM authority to approve this in an expedited fashion um, which creates some uh complications that employment lawyers are pretty divided on whether it would give workers the right to refuse or not. Just for a second, turning to that emergency use authorization in that it states that recipients have a right to refuse the vaccine, the law

is not very clear. The statute um that covers this is not very clear, and this is a an untested area in courts. UM. This is a unique situation here we have UM with a vaccine UM that is been authorized this way. The sources I've spoken to are not aware of another situation like this UM. The rules around this, the FDA indicates that individuals need to be notified they have an option to refuse. Whether that creates a statutory right to refuse that would sort of countermand in employer's

right to mandate the vaccine is very unclear UM. But if we do see widespread mandate, it's something that's very likely to be tested in court. Some of the people that you've spoken to say that the best thing is not for employers to mandate a vaccination, but to encourage a vaccination in different ways. That's correct, That's correct. Even setting aside this sort of unclear legal issue about the

emergency use off there is an action. UM. There are other legal issues and simply part practical issues when it comes to UM creating a rule that says, hey, you have to get vaccinated or you lose your job. Um. There are other exceptions when it comes to vaccines. Generally, UM, exceptions need to be made for people who have health problems. UM you know that if they're, for example, have compromised immune systems and their doctors saying they shouldn't take a vaccine.

There's also uh some legal issues around religious objections to taking vaccines. UM. And again there's some practical implications that come with this sort of thing. You may have a workforce where um, you know, you have workers that are very valuable and that are difficult to replace. And if you have a rule that says you have to take the vaccine, uh, than an employer might be spaced with the situation where that act let go workers. They really

don't want to let go of. UM. So you take all these things into consideration, you add into it's the complication of the emergency use authorization and uh yeah, that leads to attorneys to Council employers to suggest that encouraging and facilitating us in the vaccine is uh just overall the better ideas than mandating it. So even an at will employment situations, can workers raise specific objections to getting

the vaccine, that's correct. The Americans with Disabilities Act provides the right to seek a health related exception, and Title seven of the Civil Rights Act, which Title seven covers workplace discrimination, including discrimination based on religion, that provides for the opportunity for people to seek a religious exception to affect the mandate. And it's notable that the way that the Equal Employment Opportunity Commission defines religion, it's not exclusively

belief enough God or membership and established church. The way they define it is firmly and sincerely held moral or ethical belief. So again that can extend beyond traditional religions. So let's say a worker raises an objection to getting vaccinated. What does an employer have to do at that point? So at that point they need to consider the objection

and they may need to provide an accommodation. But employers do have um some very friendly UM case laws from the U. S. Supreme Court that basically, if they can show that it would be an undue bird to allow a worker out of a vaccine mandate, then they can refuse that objection and the way to the screen court case law defines. It's a very low bar what's called in legal circles that dominimus standards, you know, so it's basically anything more than a trifling burden, uh, that can

be considered an undue burden. So you have a lot of businesses, let's say, restaurants and stores, where there's interaction of the employees with the public. Are legal experts saying that that would be enough to raise an undue burden? These are going to be very case by case situation,

very sack specific situation. It's hard to say exactly. There may be a situation in which, UM, the worker can be shifted to another position, uh, you know, back in the stockroom or something where they're not going to have that UM interaction with the public, and that could be a sort of a reasonable accommodation UM to the employer requirement to take a vaccine. UM. In another situation, it may be that the only job that that worker can do, it's going to be in the public, in contact of

the public. And um that to give an exception, that would be an undue bird. So, like I said, it's always going to be a very case by case and very fact specific. Does it depend on the state that you're in. Is this a state law question or is this federal law question? Show The authority for business, a private business to impose something like a vaccine mandate flows primarily from what's known as the at will employment doctrine UH, and that is what's in effect in every state except

for Montana. And that basically says that an employment relationship is presumed to be at will, which means an employer can fire a worker for any legal reason. So it can't be uh because you know they're of a certain racial group or a certain religion. You can't discriminate against somebody. That's that's not okay under the at will employment doctrine.

But under the at will employment doctrine, you can impose a workplace rule and if a worker violates that rule, as long as you're enforcing that rule in a nondiscriminatory fashion, it can be fired for that. So in this instance, if Hope employer requires workers to take a vaccine and they won't do it, then again, generally speaking, they would have the authority to fire that work. So are legal experts expecting lawsuits over this? I mean, are they already

gearing up for that. Yeah, I've spoken to folks who do expect some of these questions to be tested in court. Um. The soope of how many lawsuits are filed UM will have a lot to do with how many employers end up actually UM imposing vaccine mandates. It's unclear to me at this point how popular these are going to be. There's a few corporations, UM, they's been through those reports.

For example, Chipotle has said that they're not going to impose a workplace vaccine mandates if they end up being If there ends up being a lot of these UH mandates, then there will be you know, a fair amount of litigation. If they mandates end up being a pretty rare thing, UM, then there just won't be the opportunity for that many terminations to be challenged in court. So one of the lawyers you spoke to said, the laws aren't prepared to give complete legal advice on this matter. What what did

he mean? Yes, So at this point, um, as I said, the law is very unclear. Uh, it's a very novel situation. UM, have pandemic to have a vaccine that's been authorized using the FDA's emergency Use authorization process. UM. The laws themselves are not exactly the model of clarity how they're written. UM, so we probably won't get answers until these questions get litigated.

Another complication is because this is a largely a matter of state law about how each state will evaluate if that will employment doctrine, and what they think about the emergency use authorization whether that creates a statutory right to refuse. That could be different in different states. Courts in California could look at the question and say one thing. Courts in Mississippi could look at the question and say the opposite.

This seems to be a unique situation where you have vaccines that are desperately needed by the whole population of the country, and yet the FDA allowing them under this emergency use authorization. I think that's right. UM. The folks that I spoke with, we're not aware of another situation in which the day approved vaccine on this basis and then that vaccine is being in wide circulation. It does warrant mentioning that flu vaccines are a little bit different.

Are often a little bit different each year because there's different strains of the flu going around. Um, to my knowledge, those flu vaccines are not being approved on the emergency use authorization basis, so it is a different legal question. Thanks for being on the Bloomberg Law Show. That's Robert Diafola, Bloomberg Law reporter covering labor and employment law. And that's it for this edition of the Bloomberg Law Show. I'm June Grasso. Thanks so much for listening. Please tune into

the Bloomberg Law Show every week now. Attend them Eastern right here on Bloomberg Radio.