This is Bloomberg Law with June Grosseo from Bloomberg Radio.
The Supreme Court has not been what you'd call a friend of the environment with its trend of weakening federal protections, and this term was no different, with the Court delivering several setbacks to environmental protections. Joining me is environmental law expert Pat Parento, a professor at the Vermont Law and Graduate School. Pat this last term, how much damage did the Supreme Court do overall to environmental protections? I mean, let's say scale a one to ten.
Oh, on a scale of one to ten, I would say it was a seven. There wasn't any really blockbuster, one single blockbuster decision. There were a series of decisions that went against the environment, you could say, certainly went
against the parties that were advocating for environmental protection. On the other hand, you know, on climate the Supreme Court actually did the right thing in denying review in the Honolulu case and in two other cases that the Red state attorneys general had brought trying to get the Supreme Court to take what's called original jurisdiction. Over All of these forty plus climate cases filed by the states and cities and so forth. So, you know, I mean it's
a mixed bag. It's generally bad for the environment, but there were a few, i guess, small scale victories.
So perhaps the biggest environmental decision of the term was one that involved a proposed Utah railway that's going to transport crude oil.
Right in the Uinta Basin of Utah. And this is heavy crude. It's a form of crude that has not been actually extracted. And this rail line, approved by the Surface Transportation Board, was about an eighty plus mile rail line totally within Utah, but it was designed to transport this oil east and all the way to the Gulf Coast to be refined and then either exported or burned in the United States. And you know, this kind of heavy crewd is some of the worst climate damaging fuels
you could have. And the question was, you know, when the Service Transportation Board is considering the impacts under the National Environmental Policy Actor, they have to look at upstream impacts from the extraction the drilling, and do they also have to look at downstream impacts of burning the oil in the refineries, in the air pollution impacts that that creates.
The Service Transportation Board under Biden did look at those things, the upstream downstream effects, but they did so in a way that sort of acknowledged we don't as the Surface Transportation Board, have any control over the extraction the drilling. We don't regulate that, and we don't regulate the refineries. So they did a sort of back of the envelope and of calculation of what the impacts would be. The
DC Circuit said, that's not good enough. Under NEVA, you have to take a harder look at these indirect effects. That has been the law generally UNDERNATHA for you know, forever, since NEPA was enacted in nineteen seventy. So there was no big surprise, I think among those of us who follow these cases that the Supreme Court was going to overturn the DC Circuit. But the way it did it,
the Kavanaugh opinion, is what's troubling. It basically said, for indirect effects that are remote in space and time and over which the agency does not have regulatory authority, those kinds of impacts don't have to be considered, and the Court should defer to agencies making those kinds of factual determination and also legal determinations on whether they have authority. And then in addition, Kavanaugh said, and oh, by the way, since NEPA is just quote, a procedural statute, which is
true an important one. But it's certainly true that it's procedural. It doesn't require a particular decision to be made, but it requires that you disclose what the foreseeable impacts of your decision is. But because it's just a procedural statute, of course, shouldn't be too quick to either enjoin an agency from proceeding even where there have been violations of NEPA, and should not immediately vacate underlying decisions that the agency has made, like issuing a license or a permit, or
making a grant for a project. And so you know, that was a gratuitous slap at the law and a signal to the lower courts you don't have to take NEPA all that seriously. Violations of NEPA. You can look at it and decide, well, it's just not that serious. Nothing is really going to be changed when we disclose these impacts, So let it go. That was very troubling, and so.
It was eight to zero because Justice course recused himself. I mean, why did the three liberals con occur in.
That they concurred in the judgment, but not in Kavanaugh's weeping opinion, both on you know, agencies just don't ever have to consider these indirect effects that are quote remote in time and space. The three liberal justices basically said, you don't have to go that far. You know. The only question is did the dec Circuit court go too far?
And the answer to that is yeah, they did. They were demanding too much in this particular case where the agency had done some consideration and they were just demanding more and that was a bridge too far, and certainly not agreeing with Kavanaugh's comment about, you know, don't take NEPA violation seriously. So that's why the three liberals concurred in the judgment, but not in the rationale that Kavanaugh advanced.
So does this make clear what the lower courts have to do?
No? No, I mean, this is yet another example of the Supreme Court thinking it's clarifying matters. It's not. And you know, it's going to be up to individual judges across the country. There are over seven hundred federal judges and more on the way, more Trump appointees on the way, and you know, Kavanaugh was clear and saying, it's up to the courts that are reviewing these actions. You should defer to an agency's factual determinations that these impacts are
remote in time and space. But you don't necessarily have to agree with the agency if there's reason to believe the agency, you know, either has authority to do more about these impacts or that these impacts are really not that remote in time and space. You can imagine, you know, all the different kinds of federal decisions that impact the environment, right. I mean, it's like there are hundreds of agencies of the federal government that have authority to approve or finance
or whatever projects that impact the environment. So no, I mean a test like this where you should defer to the agency where it makes sense to defer to the agency that doesn't clarify very much. I think we can say for sure that conservative judges will now have more authority, if you will, and more inclination to approve and agencies, particularly right now under the Trump administration, approve agency determinations that they really can't consider these impacts they're too speculative.
So in that sense, it is a signal to the courts to defer to the agencies when they say they can't figure out how to you know, consider these impacts or they don't know what they could do about them if they do consider them. But I still think there's going to be litigation. I know this because the public interest groups aren't just going to throw in the towel. They're going to keep testing, you know, the authority of
agencies to disregard impacts that, again, they're foreseeable impacts. The court in the Utah case didn't say these weren't foreseeable. They just said, well, they're just too remote and they're impacts that the agency really can't do much about. So there's going to be arguments about that going forward.
Let'ster the EPA. The Court has restricted the power of the EPA in several rulings over the last few years, and it lost again at the Court in a case where San Francisco was suing the agency.
Right So, San Francisco sued EPA for requiring San Francisco to comply with water quality standards, which are set by the states but approved by EPA, and they are designed to protect beneficial uses of water fishing, swimming, drinking, boating, et cetera. And you know, San Francisco has combined to or overflows that discharged raw sewage into the Pacific Ocean and they affect beach. I mean, this is eecal coliform, bacteria and viruses. I mean, this is really bad stuff.
It's not just unpleasant, right, it threatens public health. And so you know, IPA said, look, San Francisco, you've been working on this problem for years, but you're not getting where you need to go. You need to do more. You either need to separate your system, which is very expensive in the billions of dollars, and separate the storm water from the sewage system and then deal with the
treatment problems of each one separately. You either need to do that or you need to come up with some other kinds of mechanisms that, you know, don't expose people that are swimming in the Pacific Ocean to getting disease. But they didn't say specifically, here isn't a blueprint for what you have to do. Alito wrote the opinion for the Supreme Court. He said, that's not good enough. You have to tell permittees like San Francisco and others industry, agriculture,
wide variety. You know, of entities that discharge pollutants into the waters of the United States rivers and lakes and so forth. You can't just tell them, well, you have to comply with these so called end results water quality standards. And you know, in dissent, Justice Barrett Hooray for her joining with her sisters, the liberal sisters on the Supreme Court, said, you know, not only is that not what the Clean Water Act said, it's pretty explicit. It says other limitations
required to protect water quality. Well, that's exactly what EBA did here, right. You use technology where you have technology, and you use numerical standards for individual pollutants when you can set those. But when you have something like a toxic soup coming out of a city's discharge, you know, those kinds of mechanisms don't work so well. So you're going to have to come up with something more creative than that to protect people and protect the water quality.
And in addition, she said, it's not necessarily a great idea to have EPA dictating to cities and states what they have to do to comply with water quality standards. Why doesn't it make sense to say you have to do more to comply with these standards, you're violating them, but to give the states and cities some flexibility in how they would do it. You know, keep the pressure on the cities to comply with the Clean Water Act, but don't necessarily dictate precisely what's needed to do that.
So that was the San Francisco case. It's interesting that the Supreme Court also denied review in another case called the Puget Sound sound Keeper case, and.
The issue there was similar to the issue in the San Francisco.
Case, and that issue was whether or not a state could impose a condition in a wastewater permit that was beyond the scope of the Clean Water Act, and the
Ninth Circuit ruled that, well, that's an interesting question. But the point is that in this case, the entity that's required to comply with the law didn't challenge the permit condition when they could have, and so therefore the court applied the doctrine of collateral estoppel and said, you're a stop from complaining about something you could have complained about earlier, and now you can't raise it for the first time
in an enforcement action. And the point here is the Supreme Court denied review in the Puget sound Keeper case. I would have bet they would have taken that case because of the exceeding the scope of the Clean Water Act issue, but they didn't. So that raises the question, in the back to the San Francisco case, what about all these permits that have these end result conditions in them? Because most, if not all NPDS permits do have such
a condition. Right, that's required by EPA's rules that you have a condition in state issued NPA es permits that have that kind of condition.
Right.
So, now, with what the Ninth Circuit has said in the Puget Sound case and what the Supreme Court has refused to review, I predict we're going to see people trying to enforce these end result conditions and arguing that your opportunity to challenge those conditions was when the permit was issued. And so you're going to have a collateralist stopple argument, which means more chaos. Even though again Alito thinks by saying you can't impose end result conditions in
a permit, that resolves the question, No, it doesn't. It now raises the question of whether these permit conditions that could have been challenged, but we are still in effect. So there you go. More chaos.
Well, Alito thought that the Dobbs decision would end the abortion questions, So there you go. Coming up next, how the Supreme Court's decision limiting judges from issuing nationwide injunctions affects environmental litigation. This is Bloomberg. I've been talking to Professor Pat Parento of the Vermont Lawn Graduate School about several cases this term where the Supreme Court delivered setbacks
to the environment. There was a case involving standing to sue where the justices, in a seven to two ruling, sided with fuel producers that were suing over California's standards for vehicle emissions and electric cars. First, tell us what are California's standards Right now?
Two things have happened. One to Congress. The House and in the Senate used the Congressional Review Act to overrule EPA's approval of California's waiver under the Clean Air Act, which would give California the opportunity to set more stringent tailpipe emission standards. And thirteen other states, including Vermont and New York I, have adopted the cal California standards. But now that Congress has overruled the waiver, those standards are
not in effect. California has sued. Attorney General Bonta has sued. The problem is that the Congressional Review Act says the courts don't have authority to review decisions of Congress to overturn these rules. That's a complicated legal question. You know, the waiver is really not a rule. It's a waiver. It's a fact based determination. It's not a rule like you normally see under the Clean Air Actor or other statutes, you know, which are uniform and nationwide and general policy,
et cetera. You know, the waiver is specific to California. So the point is, you know, Bonta would ordinarily have a pretty good argument that what Congress did was illegal. But Congress did it, and Congress also said you can't review what we did. So you know, my prediction is Bonta is probably going to lose that case. In addition, the big Ugly Bill that I'm going to call it also contains a provision saying you can't penalize car companies
for violating what are called the cafe standards. This is under a different statute, the fuel Economy standards under the Energy Policy and Conservation Act, which was passed during the era of oil embargo, back in Jimmy Carter's time, and you know, NITSA under the Department of Transportation has set these very stringent fuel economy standards and the companies are clearly in violation of those standards, and the big ugly bill has just said, yeah, but you can't penalize them
for that. The bill didn't repeal the standards. The companies are still in violation of the standards, but the bill says you can't penalize them for that. So, you know, in two whacks at the largest source of greenhouse gas emissions and many other pollutants, you know, volatile organic compounds and so forth, you know, pollutants that are causing again
serious public health problems across the country. But the Congress has in twos taken out two of the federal regulatory provisions that are designed to deal with the mission standards and fuel economy standards, which would improve the performance of the transportation system, not just greenhouse gases, but all these other pollutants as well. So we talked about a bad year for the environment in the Supreme Court. Oh my god, it was even worse in the Congress of the United States, and now.
Tell us about the Sevenitude decision written by Justice Brett Kavanaugh.
Oh, the decision by Kavanov It grants standing to entities that are not regulated by the California Provision, not directly regulated. It wasn't brought by the car company. It was brought by other entities, energy companies, biofuels companies, companies that want to be able to sell you know, fuels and are angry about the shift to electric vehicles and hybrid vehicles because it's going to impact their sales. They argue with some justification, right, but you know that's not the kind
of injury that the Supreme Court would ever countenance. If an environmental organization was making that argument, you'd be thrown out of court on your ear. Trust me, I've been thrown out on my ear for making those kinds of arguments where you're not the direct target of the regulation. But when it comes to industry and corporate interests, you know, the Supreme Court is it's olay. You know, it's your waves into court by virtue of the fact, Well, you're
a business interest, you're a serious interest. And even if we might think that some of your claims are exaggerated, and certainly it's hard to tell exactly how and when you're going to be affected by the waiver of the California standard. We're gonna let you into court anyway. So it's just, you know, a case of unfair treatment of environmental groups on the one hand and generous treatment of industry groups on the other.
Pat let's talk about the Supreme Court's recent decision curbing federal Court's ability to block policy enforcement through nationwide injunctions and how that affects environmental litigation. What did the court leave open there?
Well, you know, the case came to the Supreme Court on a preliminary injunction and you know, sort of by definition that means it was a preliminary decision of the court. So one question is going to be, does the ban, if you will, on universal injunctions or nationwide injunctions as the Court describes it, Does that same rule apply at the permanent injunction stage of the case where the Court has determined on the merits that whatever action you're challenging
is illegal. It may have even been void of initio, as we say, right, it was never legal to begin with, So what a cour also be precluded from issuing an injunction that would have nationwide effect at the final stage of the case, as they say, where the court has determined there's there's a violation of law, and now are you really serious that it would be a violation only in the state where the case was brought and not anywhere else. It may be that that is the rule
going forward. That's what I think. You know, people that are commenting in the legal academy and practitioners that you know regularly practice environmental law are saying, so maybe that is the result of the case, that district court judges are never going to be able to issue nationwide injunctions. But if you read the decision and it's it's fractured, there's a whole bunch of different opinions in the case. So trying to triangulate where do you have five votes
and on what that's still an open question. And certainly as Kavanaugh throughout the option of bringing class actions. You know, so that then introduces the question, well, you know, for birthright citizenship, what's the class it would be all the kids in offspring, I guess you'd say in the country that are the children of undocumented migrants, but they were born in this country, and the fourteenth Amendment says if
you're born in this country, you're a citizen. Right. And Alido, in his concurring opinion, saw this as he would expect he would. He saw this as a loophole. He said, if you can declare a national class, then you can just get around the ruling that you can't issue a nationwide injunction. So there you go. Are class actions going to be the way that plaintiff lawyers are going to try to get around the decision in the Casa as it's called case And the answer is yeah, they're going
to try to do that. And once again, here we go again. We don't have a clear answer from this decision about when will universal injunctions be allowed and when will they clearly never be allowed. We just don't know.
Our class actions are realistic alternative for plaintiffs in environmental litigation.
I doubt it, you know, because number one, you know, trying to define the class and the Supreme Court has actually made it very difficult to certify classes. I mean, that's the whole separate process that the courts have to go through to figure out, you know, is this really a case where you can define a class and if so,
what is that class. And for environmental violations, you know, if you think about Endangered Species Act and neep of violations, even violations of the Clean Air Act the Clean Water Act, it's pretty difficult to say any particular violation is going to be national in scope. You know, the birthright citizenship is the exception to that. Probably, and maybe some of the other things that the Trump administration is doing with both deportation and maybe even some of the defunding moves
that they're making that my have national implications. You know, there are probably some types of violations where a national class could be defined, but probably environment it's going to be difficult if you are able to define a class that's broader than just perhaps within the bounds of a state or even a judicial district that's issuing a decision. Once you do that, once you certify the class. Maybe I've been involved in class actions, maybe you have as well.
I'm sure lots of people have. You get a notice, right, congratulations, you've just been named in class acts. But now you have to opt in or opt out of the class. If you opt into the class, you've become a party to litigation you didn't even know about, right, somebody brought a class action lawsuit and all of a sudden, you've been named as a member of that class. You have the option of opting in or not. If you opt in,
guess what you can be deposed. Now that doesn't usually happen in these class action lawsuits, like abuse of credit cards or something like that. But you have to be given notice. That costs money. So the bottom line is
class actions are expensive, they're complicated. There's all kinds of rules that go with them, all of which means that relying on class actions to bring the kinds of environmental cases that have been brought in the past, and the kinds of cases where environmental groups have succeeded in getting nationwide injunctions, and by the way, opponents of rules and environmental protection have also gained nationwide injunctions. The specific legal foundation is in business to do that very thing in
challenging rules under the Clean Water Acts. Think the Sacket case, right, and others like that. So you know, this question of
nationwide injunctions as usual cuts both ways. You know, both ends of the political spectrum, the conservative to the liberals try to use that mechanism to get at violations of law that don't require bringing a lawsuit in every single state in the country, and don't require having to go through all the appellate process, through the course of appeals ultimately to the Supreme Court before you get a final resolution.
That's what the dissent in the nationwide injunction case was pointing out, and Justice Jackson was ferocious, frankly in her descent. You know, she was saying, you're giving free reign to people to violate federal law, including Trump, and to say that if you do win in one venue, that's the only place you're going to win, and to win more than that, you're going to have to go through this tortuous appeal process. So you know, once again there's arguments
pro and con on nationwide injunctions. I would certainly agree with that, and I would certainly agree they can be abused by both conservative judges and liberal judges. Okay, so finding ways to constrain abuses of issuing nationwide and US junctions is a fair thing to do. But just creating a per se rule that isn't really per se, as we've discussed, that's not going to resolve it, I.
Don't think, and the lower courts are struggling with it already. Thanks so much, Pat. 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