Environmentalists Are Disappointed in Biden

Pat tell us about this landmark decision. It's the first time in history, in fact, that a court has ordered a private corporation to not only comply with reducing their emissions of carbon dioxide, but to a level that's literally going to require Shell to reconsider its its entire business plan. They're not going to be able to realize the exploitation of all of the oil and gas reserves that they have on their books. That's what this decision means. It

means changing your whole modus ARANDAI, and that's really stunning. Now, it is a lower court decision in the Netherlands, it's the Hague District Court, so it will have to go to the Dutch Supreme Court the way the earlier for Agenda case did. But it's it's quite startling in its potential impact. Can Shell accomplish what the courts set out

if it loses the appeal? Very uncertain unclear as to how Shell would do this, because the most striking thing about this decision is that it includes emissions from Shell's customers, You and I, people who pump their gas and drive you know, gas pard vehicles all over the world. Um So Shell has to somehow figure out how two offset all of those emissions. They're called Scope three emissions in the in the jargon um and nobody's ever done that. No,

no corporation. Amazon has ledged to do something like that for the emissions from its supply chain, but but nobody has actually done it. So it's very unclear as to how Show would actually accomplished this reduction in its emissions

by m measured against two thousand nineteen levels. And the allegation was a human rights violation, it was a mixed yes, it was account similar to the Agenda case, which was the decision of the Dead Supreme Court ordering the Dutch government to reduce emissions UM this year last, which the Dutch government did actually um so, so this one um is based on the same kind of European Convention for the Protection of Human Rights that the Dead Supreme Court

used in the Agenda case. It all so is looking at all kinds of international agreements under the Paris Framework UM and common law UM, sort of a sense of you know, what's the duty of a corporation in light of this overwhelming impact and challenge of climate change. It's imposing, said this court, an extra duty of care on the part of not just the government, but on the part of corporations that are, of course, you know, integral to both the problem itself and two solutions to the problem.

So again, you know, just unprecedented UM and and unclear exactly how this is all going to unfold. So this is based on Dutch law. Is there any chance that other courts in Europe will see this the same way? Well, that's an open question. Some of the Dutch scholars that I've been reading say that um, it could have a bearing on how other European courts look at these questions. Another case that bears watching in this frame is the

case from Portugal. The six young people in Portugal who have persuaded the European Court of Human Rights to consider their charge that I think six of the member states of the European Union, most prominently Poland UM, are guilty of exacerbating the climate problem, threatening the well being of these young people and and you know, sort of bankrupting their future kind of argument. And that case is being brief now and will be argued sometime in the next

few months. So a lot of people are looking at that court in that decisions as yet another benchmark, if you will, on climate law and its development. So there's a lot happening. The German Constitutional Court also recognized the rights of future generations are being threatened by climate change and have imposed some additional requirements on the federal government in Germany UH to to come up with plans to

address that. We saw in Australia. Another court in Australia has recognized once again climate change threatening future generations in the context of approving coal mines. Of course, Australia is still producing an enormous amount of coal that it sends to China and India and other places. So yeah, I mean it's hard to keep tracks. There are so many cases now moving through different courts around the world. But in the United States these cases, for example, there is

the kid's climate lawsuit that's be installed. These cases aren't moving in the United States, are they not? Really? The Juliana case, which was the original youth plaintiff case, the plaintiffs in that case have gone back to the Federal District Court in Oregon and asked Judge Akin to reopen

the case. It was dismissed by the Ninth Circuit. But the planets are trying to get Judge Akin to allow them to amend their complaints and narrow the scope of remedies so that, you know, something that courts can actually do. And Judge Akin has ordered the party's into mediation. That means the Justice Department and Our Children's Trust, which represents these plantiffs in the mediation. So you know, that's another

piece of the puzzle. But generally, climate litigation is not going forward in any significant way in the United States. There's a lot of cases that are challenging individual fossil fuel projects, coal mines, oil and gas releases, pipeline you know, we're seeing that all the time. But but we're not seeing any of the kinds of cases that the Shell decision indicates, or this German Constitutional Court decision I mentioned indicate we're not seeing anything on that level. In the

United States. There was an instance of a first time activist shareholder with a tiny steak in Exon scoring a historic win with getting two seats on the board. So is it more from within that we're going to see change than from the courts? Yeah? That was that was remarkable because you know, usually corporations at their annual meeting are able to squash these shareholder petitions. But in this case, these these shareholder activists, You're right, we're able to get

two seats um on the board. Now that doesn't mean they're going to change Xon, but it's certainly is an inroad into what has been a closed shop or a closed board for the activists. And you're also seeing more and more in the financial sector increasing concerns and comments about the financial risks of all this investment in fossil fuels.

We saw that with black Rock, you know, the largest brokerage firm that has over what seven trillion dollars in its portfolio, that the head of black Rock saying they're gonna they're they're shifting their focus to sustainability and investments in you know, newer, cleaner technologies and so forth. So

an awful lot happening on the climate front. So I want to turn to the Biden administration because environmentalists had expected a complete reversal of Trump era legal positions, but they've been disappointed in the first months of the Biden administration. Politics in truths, Reality and truths. Yeah, Biden is facing tensions from both sides. On the left, sort of progressives in the climate activists. You know, they want an end to oil and gas development right now. They want to

stop all the pipelines. They want to stop oil and gas development everywhere. And Biden during the campaign made some promises which he's finding hard to keep. You know, He's shut down the Keystone pipeline and that true, I don't know, several hundred or thousands of workers out of work, and so he took a shot from the unions on that.

And now most recently, the Justice Department has gone into this case in Alaska in the Arctic Petroleum Reserve and defended the decision of the Trump administration to open up the Arctic. The scuttle butt on that is that Biden feels like he owes Lisa Murkowski, you know, one of the few Republicans who ever agrees with anything that the Democrats in the Senate want to do and what Biden would like to do with his infrastructure bill and all

these big investments. So apparently, you know, he's having to cut these deals and balance the left and the right and the way he's executing his climate policy. I will say, overall, Biden is moving in the right direction. He's not moving as aggressively as we'd hoped, but he is moving in the right direction, and he's making climate a centerpiece of his policy, foreign policy, domestic policy, fiscal policy. He is following through on that. But yeah, he's going to break

some hearts along the way on the phrase. Also some of the positions that the Justice Department is taking. For example, in April, government lawyers pushed the court to leave intact a Trump error rule designed to speed up reviews under the National Environmental Policy Act and argue that the Neeper rule didn't harm environmental groups anyway. So are the positions

that they're taking sort of astonishing for this administration. That one really troubles me because it's pretty obvious that those NIPA rules are allowing projects to be approved without the kind of rigorous examination of their impact. Not just on climate, but on environment broadly, wildlife, habitat, air quality, water quality, and so forth. And yeah, I mean the Biden administration went into court and told the court, let's leave these NEIPER rules on the book while we think about how

to change them. And the environmentals were saying, well, no, we need to get these rules off the books. We're not going to end up with these rules, so why leave them in place? Right? So that's a curious one. And we've not heard any explanation from the Council on Environmental Quality, which is, you know, the the entity that actually manages the NIPA process. Haven't heard any explanation for why the administration is taking that position and why frankly,

they're not moving more aggressively to replace those rules. They're doing something similar with the rules under the Clean Water Act, which we know are are really bad rule because according to data that the Core of Engineers has developed, the Trump Rule, which revised the scope of protection under the Clean Water Act, has threatened of the waters in the United States and over fifty of the wetlands. So we

know those rules are no good for the environment. And yet again the Biden administration is telling the courts, don't vacate, don't overturn the Trump rules. We're going to engage in in what Administrator Reagan has called a stakeholder process and try to reach some agreement with the opponents of the Clean Water Act rules that the Obama administration had adopted.

So yeah, I mean, it's just gonna be a situation where the Biden administration is going to be weighing each one of these issues, apparently with an eye towards the politics and eye towards of course they have to do legally to make these changes. But um, they're slowing down, They're slowing down. How much of this is the politics as you talked about the oil leases in Alaska, and how much is it not wanting to overturn what a

prior administration did. Well, some of it is is legally is being you know, thought about in terms of will the courts go along with the rapid and sort of wholesale reversal of the Trump policies. I mean, you have to remember Trump has now I think two hundred and forty of his judicial appointments are on the federal bench, and of course we know three of them are on

the Supreme Court. So there is some legitimacy to the Biden administration and the Department of Justice proceeding with some caution, you know, as they make these changes, but leaving some of these rules in place with no announced deadline by which they're going to be changed. That's that's concerning, I would say, And it may be that as partly due to getting staffed up at these various agencies. I mean, we don't yet have uh, the new head of the

Department of Justice Environmental Section approved this um. This individual named Kim has been nominated, but but you know, with everything else going on in Congress, he hasn't been confirmed yet, So we don't really have one of the key people in the Biden administration that has to oversee all this litigation, you know, that's going to be required to get resolved in order for the Biden rules to finally take effect.

We've talked about the oil leases in Alaska before, and I have to say I was very surprised because I thought that was one of the things the Biden administration would immediately try to get out of. And you know, the thing of it is that that kind of a decision has such a long, uh lead time. I mean that they're going to be developing that oil and gas for a very long time, thirty years maybe, So it's not just a one off deal. It's a major deal, um.

And it has all kinds of environmental justice impact because of the opposition not uniform, but but a lot of opposition from the native villages up there. Oh yeah, that was that was a bad one. So all those oil leasts are going through, or just some of them, just some of them. It's just it's just this one particular. And it's true that this this National Petroleum Reserve was set up, of course to develop the oil and gas. That's the whole point of it. So you know, I

get that. Um. You know, the administration would be you know, they be risking perhaps some legal vulnerability if they were to completely uh you know, prohibited. But but they went in and defended, um, the work that the Trump administration had done under NIAPA under the Endangered Species Act um.

And um, you know, from what I have read anyway, there's a lot of reason why that those environmental assessments are not good and need to be redone and at least that Biden administration could have agreed to do that, but it went in and defended, you know, right down the line everything that had been done by Trump. Thanks so much, Pat. As always, that's Professor Pat Parento of the Vermont Law School. And that's it for this edition of the Bloomberg Law Show. Remember you can always at

the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast, slash Law. I'm June also and you're listening to Bloomberg