This is Bloomberg Law with June Grossel from Bloomberg Radio.
President Donald Trump is zero to two at the Supreme Court in his second term. The Court rejected his request to toss a judge's order that requires the quick disbursement of as much as two billion dollars owed to contractors for already completed work. The justices were divided five to four, with the Chief Justice and Justice Amy Cony Barrett joining the three liberals in the majority. And joining me is Bloomberg News Supreme Court reporter Greg Store Greg tell us about this dispute.
So this all started with the administration putting a broad freeze on foreign aid and a judge putting a temporary restraining order on that broad freeze. And where we are now is that the judge said, Hey, despite the fact that I put that freeze on hold, it's still happening. So in a follow up order, this judge, Judge all Lee, said, I'm going to require the administration to make payments of anything that was owed as of February thirteenth, and you
have thirty six hours to do it. And so what the Supreme Court case was about was the Trump administration saying, hey, put that compliance order on hold because we can't actually comply that quickly, and the judge overstepped his authority by ordering us to make these payments.
They said they couldn't do it that quickly, But this was money that was supposed to be paid before.
Right.
Does that make sense that they said they couldn't do it that quickly. Don't they have it on hand?
It's certainly hard to tell, and based on the court record, it's not clear what exactly is going on. We know that this is happening at the same time that huge numbers of USAID, the agency that funds most of this staffers, have been laid off or furloughed, and so you know, it may be at least in part that they're aren't people there who can do this sort of stuff the
way they used to. But yes, your underlying question is aren't these all payments that under the normal course, would have been made by now, or at least aren't most of them? And the answer is yes. So one might have imagined that there was a mechanism for actually paying these things.
So you had two conservatives, the Chief Justice and Justice Amy Coney Barrett, joining with the three liberals. What did they decide.
Yeah. So again, this was the Trump administration asking the Supreme Court to put this compliance order, this order to pay as much as two billion dollars on hold, and Chief Justice Roberts, Justice Barrett joined the Court's three liberal justices to say, no, we're not going to put that
order on hold. Now, there's a twist to this, which is that the order was originally put in place last week, on Tuesday of last week, and Chief Justice Roberts had temporarily put it on hold, which means that the deadline for actually make these payments has already passed. The original deadline was a week ago today, and so it's not clear exactly what happens next. Obviously, since that deadline has passed,
the administration can't meet it. The Supreme Court did suggest that the district Judge juj A. Lee should clarify his order and take into account the feasibility of meeting deadlines. So probably the next step involves him. But the order from the court from the Supreme Court today was a little bit ambiguous on exactly how this is supposed to work.
Four Conservatives dissented, Justices Clarence Thomas, Samuel Alito, Neil Gorsich and Brett Kavanaugh. Justice Alito said he was stunned by the majority's decision, and he wrote an eight page descent to the majority's one paragraph order.
Well, his problem was, he said that the district judge way overstepped his authority. He called it. Justice Alito called it judicial hubris, and he said the court was now allowing that, rewarding that and as Leader put it, quote, it imposes a two billion dollar penalty on American taxpayers. To say that this was a strongly worded dissent would
be an understatement. Essentially, he said that he thought the administration had a really strong argument that the groups could not recoup this money, could not force these payments, at least in the context of this lawsuit. He talked about sovereign immunity, He talked about the court's jurisdiction, and he said that because of that, he would have kept a pause on this lower court order and maybe even granted review of the administration's arguments, granted cert in the case.
But he certainly would not have let this lower court order be reinstated and essentially forced the administration to make these payments.
Did the administration appeal the judge's order itself, or did it appeal the compliance timeline for the order.
The administration appealed only the compliance timeline. It did not challenge the original temporary restraining order that lifted the freeze that have been put in place. And part of the reason for that is that there are real questions about whether a t RO can be appealed at all. Normally, the answer is no, it can't be appealed, and the administration in another case, has been trying to sort of carve out an exception to that general principle for cases
involving the power of the executive branch. But the administration argued that this compliance order is not just a temporary restraining order that keeps the status quo in place, but it's actually an injunction that forces them to do something, namely, pay a lot of money. And so they were arguing that is something where the Supreme Court can get involved right away, well less than.
Two months into Trump's second term, and this is the second time the administration has gone to the court, and not in the ordinary course appealing an appellate court's decision, but on an emergency basis. Do you think that was part of the reason that those five justices said no.
You know, it's hard to say too much about the motivations of the five because the order itself is only a page along and really doesn't have any reasoning. So I'm speculating to some degree here. It is certainly unusual for the Supreme Court to get involved in any litigation this quickly, and that is probably part of the hesitance.
The other part was very likely that normally a district judge, if he or she enters a temporary restraining order or any other order, has some power to enforce that if a party's not complying with it, And had the Supreme Court granted the Trump administration request, it would have done a little cutting out of the legs of a federal district judges when they see an order not being complied with when they conclude that a party, in particularly this administration,
might not be applying with an order. So I would imagine, again I'm speculating a little bit here, but I would very much imagine that was in the back of the minds of many of the justices in the majority.
So this is the second time that the Supreme Court has turned the Trump administration away less than two weeks ago, they refuse to let Trump fire the head of an agency. Does this indicate that the court is going to provide some guardrails for Trump or is it too soon to tell?
I would say it's too soon to tell. It gives a little suggestion that they might be willing to keeping in mind that it's only five of the justices for them dissented in very strong terms. The earlier case, which is one that almost certainly will be back probably in the next to a week or two, involved the President
trying to fire somebody. This guy who is known as the Special Council Hampton Dellinger, is basically the head of an office that protects whistleblowers, and the Court essentially kicked the can down the road a little bit, which let Hampton Dellinger stay in his job for now, but left open whether ultimately the administration will be able to fire him.
Gorsachen Alido also dissented in that case, the Dellinger case. Do you think that indicates that they are two pretty reliable votes for Donald Trump in every case?
I don't want to say anything too broad because these are individual cases, but certainly, if I'm the Trump administration, if I'm Donald Trump. I feel very good about Sam Alito and Neil Gorsich in most of the cases that are likely to come before the court. Probably also Clarence Thomas, who, even though he wasn't part of that original dissent, has over the years strongly suggested that he is sympathetic to
what Donald Trump is trying to do. And then, you know, as with so many cases at the Supreme Court, these fights are probably going to depend on the sort of center right justices of John Roberts, Amy Cony Barrett, and Brett Kavanaugh to determine which side ultimately wins.
Yeah, I didn't know whether to add in Clarence Thomas there, because he could have had a lot of different reasons for agreeing with the major already on the Dellinger case. So, but that did surprise me that he was with the majority there.
I have a theory, but it's just a theory, which is that he basically took one for the team. Did Roberts a favor because if he had joined the descent there would not have been five justices on board for anything, you know, this notion of holding it in the bands, and so by not dissenting, he or at least not dissenting publicly. He you know, let the court issue some sort of order. So that's my theory.
I think it's a good theory, Greg, because there's often horse trading going on behind the scenes. Do these two Trump appeals to the Supreme Court in less than two months tell us that you and the Supreme Court are going to be very busy in the next four years. I mean, one hundred cases have already been filed over his executive orders and the like.
Absolutely. I think both these two cases we've talked about, the foreign aid funding and the Special Council case are likely to come back to the Supreme Court pretty quickly. And then we have all the one hundred other cases involving things like birthright citizenship, the mass firing of employees, funding for other parts of the government, and very very likely these will get up to the Supreme Court fairly quickly.
That being said, one possible effect of the Supreme Court's ordered today might be that it sends a bit of a message to the Trump administration, think carefully before you bring stuff to us, because we're not just going to be a rubber stamp for you. So it might have some effect in terms of reducing the number of applications that the Trump administration brings to the Supreme Court.
I'll bet the justices are hoping that's true. Thanks so much, Greg. That's Bloomberg Supreme Court reporter Greg Store coming up next on the Bloomberg Law Show. The Supreme Court makes it harder for the EPA to police sewage discharges in another loss for the agency at the Court, and later in the show, the justices confront the question of what to
do with the growing pile of nuclear waste. Another setback for the EPA at the Supreme Court, with the justices ruling for San Francisco in a case about the discharge of raw sewage that sometimes occurs during heavy rains, a ruling that will make it harder for environmental regulators to limit water pollution. In a five to four vote, the Court's conservative majority ruled that the EPA overstepped its authority under the Clean Water Act with water pollution permits that
contain vague requirements for maintaining water quality. The decision is the latest in which the conservative justices have rained in pollution control efforts. But one conservative justice, Amy Coney Barrett, joined the court's three liberals in descent. My guest is environmental law expert Pat Parento, a professor at the Vermont Law and Grad you at School. Pat Justice Samuel Alito wrote the majority opinion. Why did the five Conservatives rule against the EPA?
So Alito wants to rewrite the Clean Water Act, No surprise, he doesn't like the way Congress set it up, and so he's instructed EPA that when they're dealing with a problem like combined sewer overflows, where you have a mixture of pollutants. Right, if you think about this, a CSO diverts sewage from the treatment plant directly in this case, to the ocean, but it also collects all the storm water from the urban surface. So you have this literally
toxic soup of dozens of different kinds of pollutants. So EPA's approach to this kind of a problem is to say, we have nine best management practices for you to use to limit the number of times you're bypassing your treatment plan.
Okay.
Alito doesn't talk about any of this. He makes a brief reference to EPA's policy.
Approach to CSOs.
What he doesn't say is that Congress codified that policy in nineteen eighty two and put it into the Clean Water Act. EPA wasn't making this up. EPA was following what it's done for a very long time, decades. But Alito doesn't like it.
He says it's too vague.
He says, what you have to do, EPA is come up with specific limits for each and every pollutant that the City of San Francisco is responsible for managing. That's an enormous undertaking, right Just think about all the science, all of the analysis that you'd have to do to develop numerical limits for all of these different pollutants. It's not workable. It's something EPA would do if it could, but it can't. So it does the next best thing.
It says to San.
Francisco, here are a whole bunch. There's over one hundred pages in this permit, one hundred pages of detail. Here are the things that we know we can set technology standards for. But you still have to meet water quality standards. You still have to protect beneficial uses of water. What are those swimming? What happens when you have a cso bypass sewage raw sewage? As Justice Barrett said in her dissent toilet paper goes into the ocean where people are swimming,
and you can imagine what's with the toilet paper. So that's the situation that EPA has inherited and confronted and historically has dealt with. Alito says, no, that's no good going forward, EPA. You have to come up with specific limits for each and every pollutant and tell cities like San Francisco and New York and Boston and even Burlington, Vermont as CSOs. Right, you have to tell all of these municipalities.
Exactly what they have to do.
To comply with water quality standards. It's an impossible burden for the EPA, certainly given what Trump is proposing to do to EPA, which is to gut it, to hollow it out, so it won't have the staff, it won't have the budget, it won't be able to do what Alito has ordered it to do.
Pat We've talked before about how unusual it was that San Francisco, a liberal city, was fighting the EPA over water pollution. Why did San Francisco have such trouble with these regulations?
Cost? The fix for these CSOs is incredibly expensive, billions of dollars, literally, billions okay, But you know, if you don't want to comply with the law because you can't because you're too poor or you can't raise the money to do it, you need to go to Congress and get an exemption. But you can't just declare it's too expensive to comply with the Clean Water Act. But that's what's driving San Francisco. It's almost bankrupt. It has enormous
financial problems. It has a hollowed out downtown. It's a very sad thing to see San Francisco one of the most beautiful cities on earth when it was vibrant, you know, and flourishing, not now. So that's the basic problem. Other cities have done this. I was involved in one of the earliest cases, suing the city of Portland, Oregon, for its CSO problem. It has nine of these massive tunnels or pipes that discharge to the Willamette River raw sewage.
We sued them in the early nineteen ninety We wanted a victory in the Ninth Circuit. And what did Portland do? It fought us for a while, but what did it do? Once the Ninth Circuit said you have to do something about this, It decided to build a whole new treatment plant. It cost a billion dollars, but they got rid of the nine CSO pipes that were contaminating the Willamette River. The city of Chicago had the similar problem. What did they do They built deep underground tunnels to hold the
storm water so it didn't overwhelm the treatment plant. Those are the kinds of choices that you face. Separate the storm water from the sewage water, build more treatment facilities, figure out something to do with these CSOs. But one thing you can't do is continue to contaminate public water.
That's what the law requires.
So, as you mentioned, Justice Amy Coney Barrett, a conservative, sided with the courts three liberal justices. I don't want to say it was the women against the men, but that's what it turned out to be. Tell us about her descent.
Amy Komy Barrett nailed it. I mean, what she did was really remarkable. She actually read the statute, you know, and she said, no, I'm looking at the statute. And the statute authorizes EPA to not only set these technology based what are called affluent limitation standards, but Congress deliberately
thought about, well what if they don't work? What if they don't actually accomplish the goal of protecting public water, meeting water quality standards, protecting beneficial uses fishing, swimming, drinking water, and all the rest of it. So she said, so Congress thoughtfully said, well, as a backup, you can include in these requirements other limitations necessary to protect water quality. And she said, that's exactly what EPA is doing. It's like going to a doctor and a doctor says your
blood pressure's high. The doctor's not going to necessarily tell you what you have to eat to your blood pressure. Now you might, you might suggest less salt, you know, but he's basically going to say, your illness here is high blood pressure. Do something about it. It's something I happen to know something about, right. So that's what she analogized the Clean Water Act to. It was EPA saying you must meet these water quality standards. And by the way, where do water quality.
Standards come from?
They come from the state. They come from the state of California. So these are standards that California itself has adopted to protect its water and to protect its people because these are public health threats.
And so she said, you know, you've.
Signed up for protecting these uses of water, now figure out how to do it. And she said, and if EPA overstepped by requiring you to do something that, if she put it as arbitrary or irrational, the remedy for that is to go to court and challenge EPA's requirement when EPA imposes it. The remedy isn't to wait until you violated and then come into court crying and complaining about we really can't comply with the permit we signed.
So that was amy Cony Barrett's approach. This is the second time, by the way, she's parted company with her right wing male counterparts. So this is a positive sign. If there's any silver lining in this case, it's that the hard right members of the court are driving amy Cony Barrett into the tender embrace of her female colleagues on the bench.
That's what I see happening.
Alito said, if the EPA does its work, our holding should have no adverse effect on water quality. How much harder will it be for the EPA to police water quality standards after this decision?
Yeah?
How many permits has Alito written? I was regional counsel to EPA in New England for several years. I know what it's like to write these permits and enforce these permits. I know what CSOs are all about and how difficult they are. And I can tell you this, it's going to take double the staff of EPA's Water Quality Division to do what Alito is demanding that they do. He has no idea how complicated it is to come up with a specific limit for every single pollutant that's in
a wastewater discharge. Particularly where you're talking about cities.
You know, each.
City has a different way of managing.
The waste that comes through.
I mean, some cities have streets sweeping, right, some cities don't. So if something's on the street, think about what's on the street of an average American city, right, and it's going into the same system it's supposed to be treating sewage, and then it's going directly.
Into the water.
Are you kidding me? You think that's a simple thing to do. If EPA could have done that, it would have done that. I can remember sitting in meetings talking about the difficulty of enforcing standards that are vague, that are imprecise, and how difficult it is, you know, to convince a court that somebody's in violation of something when
they don't know what the something is. So there's all kinds of discussion that goes on in the agency about how do you write permits so that people will know how to comply so we don't have to enforce them. We don't have the staff. There are tens of thousands of these permits that have to be issued every year. There's no way that you can write a permit and enforce it unless you have done the very best you can to be as specific as you can. So what he glibly says, all all EBA has to do is
to do his job. He doesn't know what he's talking about.
The Supreme Court has rained in pollution control efforts. What does this decision indicate?
Yeah, it indicates that this court, at least the conservative majority of this court, is outright hostile to environmental law and regulation. That's the only way I can read what's going on. Not only do they not want to defer to the agency, they want to become the agency. They want to dictate to the agency how to do their job, as if they knew how to do that job. It's at the Congress to decide how agencies should do their job.
And we know if Congress is unhappy with the way EPA or any other agency is doing his job, it has plenty of opportunity to step in and correct it and punish the agency if it needs, if it feels like it needs to do that, or hurt them through the budget process, you know, demand that they do things a certain way. That's what Congress is there to do. It's not up to the Court to decide how EPA should do its job.
That's what's going on here, all right, Stay.
With me, pat coming up next. Today, the Justice has confronted the question of what to do with the growing pile of nuclear waste. This is bloomberg at oral arguments. Today, the Supreme Court confronted the national headache of what to do the growing pile of nuclear waste. The Justice is wrestled with whether to restart plans to temporarily store nuclear
waste at sites in rural Texas and New Mexico. The justices appeared divided over whether Texas and companies that own land in the oil rich Permium Basin had the right to challenge a federal plan to let as much as forty thousand tons of highly radioactive waste be temporarily stored at a privately owned off site facility. I've been talking to environmental law expert Pat Parento, a professor at the Vermont Law and Graduate School. Right now, where does the US store its nuclear waste?
It doesn't, is the answer.
All of the nuclear waste at nuclear power plants. Now this is in contrast to, of course, weapons grade nuclear waste.
That's a different issue.
But the nuclear waste that's generated by nuclear power plants is all sitting at the nuclear power plants all over the country. They are stored either in casts, concrete casts, or in most cases in underground vessels that have water. You better hope it has water, because you know, the half life of this nuclear waste is measured in hundreds
or thousands of years. So you've got to maintain the integrity of these containment vessels and keep them cool enough because of course, you know, nuclear waste is very hot and it likes to get out of confinement. But that's the way we are quote managing nuclear waste. It's at every individual power plant. The proposal was, of course, to build a national repository at Yucca Mountain in Utah, and we all know what happened. To that. It's never happened.
As Gorss put it in the oral argument today, it's just a hole in the ground. And so now they're talking about building a quote interim story facility, one in Texas and one in New Mexico and ship all of this waste by rail or perhaps truck, God forbid, across the country from all of these nuclear power plants to this location in Texas where it's supposed to be temporary.
Well, we know what will happen if.
They actually put the waste into this facility. This is a private facility, by the way, it's not a governmental entity, which what yucka mountain would be. We know that once it gets there, it's not leaving. And Alito actually raised that point today in the oral argument. So that's the nature of this problem. It's a fiendishly complicated problem. It's one we haven't been able to solve. It's one that you have to wonder whether we'll ever be able to solve.
There were two questions at issue in the case. One was whether the Nuclear Regulatory Commission has the power to license such a temporary storage site. And as you mentioned, several of the justices were more than dubious that this would be temporary. Where do you think that justices stood on that question?
Looked like it was split.
It's always hard to read.
But you know, this is one of those weird issues where it's not it's not EPA, it's the Nuclear Regulatory Commission. You can hardly say that the Nuclear Regulatory Commission is hostile to industry. So it's not really one of those industry versus the regulatory body so much as it's the interests around the location of this proposed facility in Texas, which, guess what, it happens to be in the middle of the Permian Basin, one of the largest oil and gas
deposits in the country. So the opposition to this facility ain't coming from the environmentalists, although there may be some environmental concerns about it. I'm sure there are, But the major challenge is coming from the Governor Abbott of Texas. Why because industries don't want a nuclear facility in the middle of their oil and gas operations it might impen on what they're producing.
I mean, does any state want a nuclear you know, storage site in the state.
That's a hard one. Apparently not.
Although New Mexico has not been entirely clear about that. They're certainly concerned about the nature of the facility that's being proposed at Holltech is the name of it, And there's a lot of opposition from tribes and from what you would call environmental justice communities because they're saying, hey, if you think this stuff isn't safe enough where you have it, now, why are you bringing it to us?
Right?
So, there are some legitimate questions about moving this waste around and storing it in quote interiom, facilities which are not intended to be permanent. As I say, this is talking about perpetual care with this stuff. Perpetual care. As one critic put it, it's longer than the Catholic Church has been around, right, So you know, it's no wonder that people have serious concerns about why did you pick us as the place to put all your high level
radioactive waste, dangerous waste. So that's a problem.
The second issue was whether Texas and the private plaintiffs can seek intervention in the federal courts because they failed to intervene at an earlier stage, and the court's liberals seemed sympathetic to that argument.
Yeah, yeah, and Barrett I think would probably be of a similar mind to the three quote liberals on the court. This is a kind of a catch twenty two. Procedural issues often are right. So here's the way this gets set up. The challengers, the petitioners in the case before the Supreme Court tried to intervene in the NRC licensing and were denied intervention, and they didn't challenge that. And so now when it comes to going to court to challenge the license that NRC issued, there's a.
Federal statute that says if.
You didn't object, if you didn't intervene, you can't challenge the license. That's where the catch twenty two comes in.
But it's certainly.
True that if you didn't intervene, you can't challenge the license, and if you were denied intervention, as they were, your remedy should have been challenge. The denial of intervention. Seems to me that unless the more conservative members of the Court feel that somehow the opponents of this facility align more with their ideological view of the world, unless they see the case that way, I think they're going to agree that you're out of luck.
Challengers.
You didn't intervene, you weren't able to intervene. You didn't challenge that you're sool in this case.
What's interesting about this case is that the administration is staying on the side that the Biden administration took in support of the Nuclear Regulatory Commission and against Texas, and Texas Governor Greg Abbott is a big ally of Trump's.
Odd dead fellows for sure.
This is the dilemma of nuclear power and nuclear waste.
What to do with it?
Nobody wants it, but leaving it where it is. Most of these plants have been shut down in my home state of Vermont. Vermont Yankee has been shut down now for almost ten years, Connecticut Yankee shut down, Main Yankee shutdown. You know, nuclear power plants have been shutting down left and right because natural gas has you know, out competed them in terms of the costs. So what are you going to do when you don't have a national repository, a permanent solution, and you have all of these different
facilities around the country that have been shut down. I mean, it is a bad situation. So that's why Biden sided with the NRC in saying, we need a better solution than we have Until we find a permanent one. If we ever do we need a better way of managing this waste than what we're currently doing. That's the best way you can understand this situation. There's no good answer to this. You know, there were warnings about this. I can remember when I first went to George Washington Law
School to get my LLM and environmental law. I took a course from James Ramy, who was chair of the Atomic Energy Commission, who told me the nuclear waste.
Problem was a PR.
Problem, wasn't a technical problem at all.
You know.
That's I hate to say it, but that's now forty five years ago. Okay, Well, it isn't a PR problem. It's an impracticable problem that we haven't figured out how to solve.
So pat if the court turns them away on this procedural ground, is that the end of the question, then I'm not sure.
I'm not sure.
You know, as Yogi Berra said, it ain't over.
Until it's over.
There's probably some other ways of challenging you know, what's gonna happen with this facility. There may be ways of challenging, how are you going to move this waste across the country safely? And when it gets there, how exactly are you going to unload and place it safely into containment. There's probably going to be other challenges, but I can't predict either what they are or how successful they'll be.
It's probably a long way to go before this facility gets authorization. If ever, Thanks so much, Pat. As always, that's Professor Pat Parento of the Vermont Law and Graduate School. And that's it for this edition of The Bloomberg Law Show. Remember you can always get 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, and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Wall Street Time. I'm June Grosso, and you're listening to Bloomberg