Today on Parts Pervilion, we talk about how the Biden administration can make its environmental agenda bulletproof to legal challenges, or actually, more like whether that's even possible. Hello, Welcome back once again to Parts per Billion, the environmental podcast from Bloomberg Law. I'm David Schultz. So every presidential administration gets some of its policy initiatives thrown out in court.
It's just something that's bound to happen. The legal limits on executive power can be kind of vague, especially when it comes to the environment, So sometimes mistakes get made. You know whose job it is to prevent those kind of mistakes. Lawyers. Federal agencies have armies of lawyers who pour over regulatory proposals to determine whether they are or are not allowable under the law and the constitution. Now,
these aren't the most high profile jobs. You're not going to get a push alert on your phone when one of these regulatory attorneys gets hired. It's say the EPA or the Interior Department. But these lawyers can actually make the difference between whether an environmental agency actually accomplishes anything or whether years of hard work gets nullified by the banging of a gavel. Bloomberg Law reporters Allen Gilmer and Stephen Lee have been reporting on exactly how the incoming
Biden administration will be gobbling up environmental lawyers. And I spoke with Ellen about the qualities that these attorneys need and about what can go wrong. Well, with any environmental regulation, you can expect it to be litigated. So that was definitely the case during the Obama administration, and a lot of the really like marquee regulatory moves the Obama administration made on climate and water, they were litigated. Some of
them got held up in court. The biggest climate regulation the Obama administration put together was called the Clean Power Plan, and that affected power plants, and it was never struck down in court, but the Supreme Court put it on pause, so it never took effect, and it was never actually fully litigated. It got argued and never decided with the Obama Strations rule for water jurisdiction, which some fellow policy wonks will lovingly refer to as the Obama wotis rule
Waters of the US. So that was challenged in a bunch of different courts, and some courts put it on hold. In some places it took effect in other places. So long story short, during the Obama administration, you know, a lot of environmental REGs took effect, all of them were litigated, some of them were kind of stumbled during the legal process, and we never really saw them come to fruition. Yeah. I guess every presidential administration has a batting average when
it comes to, you know, environmental REGs. No one's going to hit bat a thousand, of course, but it really did seem like with the Clean Power Plan especially, it must have been a huge disappointment for environmental activists and also people within the Obama administration who were hoping that
would be their signature legacy on the environment. Right. Oh yeah, I mean a lot OFMA officials said like, oh, that was one of our worst days, was the day we found out that the Clean Power Plan was was frozen by the Supreme Court. But at the same time a lot of other regulations did take effect, So I think
calling it a mixed bag is probably correct. So now we have a new president coming into office who happened to be the vice president at that time, and you and Stephen Lee had a really cool story about the attorneys who will be vetting all the things that the Biden administration is going to be doing. Can the Biden administration avoid these setbacks that you know the Obama administration faced or is that even possible because as you said,
everything that they do is going to be litigated. Everything is going to go to courts, right, Yes, everything is going to court. We know that a lot of conservative leaning state attorney generals are going to sue over very environmental regulations during the Biden administration. We know that industry groups will sue some like legal associations and other entities and companies will file suit. So it's going to be a big mess in the courts. Again, that's nothing new.
Like again, that's what we expect to happen in any administration. I wouldn't say that the Obama administration had a particularly
poor record. I think it was pretty average, and the Biden administration, you know, will be going into it kind of with the benefit of having learned the lessons of both the Obama administration and the Trump administration, because all of the Trump administration's environmental rollbacks were also challenged in court, and through the course of that litigation, we got some clarity from different courts on kind of the scope of administrative law or the application of administrative law, and how
certain you know, regulatory moves would be viewed by the court. There's a lot of kind of quick actions that the Trump administration took that tested the limits of what you can do under the Administrative Procedure Act. So the Biden administration actually gets the benefit of seeing how those things played out for Trump and seeing, Okay, so we don't have that tool available, or we do have that tool, and we can try this and that and go from there.
One of the things that I really liked about your story, the story that you and Steven did, is that you talk to a lot of people who held these rules in the past, at the Justice Department, at the Interior Department, ANAPA, of course, people who are general counsels, you know, regulatory attorneys. And one of the things that they said is that it's really important for people in those rules to have good relationships with the other senior leaders who they're going
to be working with. And I kind of read between the lines there a little bit, and you know, it seemed like that's because these attorneys are going to be telling other people no, you know, they're going to be saying, hey, you know, I know you want to sort of put that into this regulation, but we just can't do that. Is that, you know? Is that a fair reading of
those comments? I think so many of the lawyers we talk to said, you know, their job is to push back sometimes to tell other politically appointed officials, hey, this is not going to be legally feasible. This isn't going to stand up in court. But a lot of them actually stressed that, like they don't want to be the no person. They want to be the person who says, not that way, this might work instead, So they're having to be kind of creative. Instead of saying no, they
can say yes but or yes. And I guess to take a turn from the improv comedy community or a lawyer's favorite answer is it depends if we do it that way, if we do it this other way, this might work. We're talking about, you know, who the lawyers are going to be, but let's talk about what they're going to be defending. I mean, it's still way too soon. We haven't even reached inaugurations, so we don't know and we don't even know who the head of the EPA
is going to be or interior. However, you know, what do we know about what the Biden administration is going to try to do with its executive powers on the environment? You know, do we have any indication of what some of the big initiatives are going to be. Well, we know that the Biden campaign has been clear about its priorities on the environment, climate, environmental justice. Those are the two top tier items, so that those two issues touch
a number of different regulations. We're going to see the Biden administration reverse several Trump administration moves, or at least attempt to reverse several Trump era moves, including so you'll see something from the Biden administration to try to reinstate some kind of clean power plan, like limits on greenhouse gas emissions from the power sector. We don't know exactly
what that's going to look like. It'll probably be something different that looks a little different from the Clean Power Plan that's a little more ambitious as far as targets go. We're probably going to see the incoming Biden administration move to reinstate kind of a broader view of the scope of the Clean Water Act and the types of waterways and wetlands that are protected under the Clean Water Act.
That's a big one, we'll see new regulations from the Biden administration that attempt to protect fence line communities, which are the people who live to like big industrial polluters. So we'll see just a lot of action on all of those areas, and we'll see different industries affected in different ways, and it won't be across the board that
industry players are suing over all of these. You know, we've seen some industry support for certain regulations, like if the Biden administration reinstates strict controls on methane emissions from the oil and gas industry, that's something that has some industry support. But we will see lawsuits over a lot of these moves. The lawyers Stephen and I highlighted in our story are people who they're not the face of the agency. It's not the head of EPA, it's not
the head of the Interior Department. But there these other, like very powerful politically appointed Senate confirmed officials who are really steering the ship through the potential legal risks of all of these regulatory moves bid an administration is going
to want to make. And one of the things that I wanted to ask you about is, you know, we had our colleague Dean Scott on the podcast a couple of weeks ago, and he made an interesting point, which is that you know, regardless of what happens on January fifth, when there's a runoff election for the two remaining Senate seats in Georgia, that will of course determine which party
controls the Senate. Regardless of what happens with that, we're going to have a really closely divided Senate in a really closely divided Congress, which means that it's probably not realistic to expect Congress to do a lot on anything, especially the environment. Do you think that that will make it There's going to be more pressure on the EPA and the Interior Department to get things done, and that that could lead those agencies down a potentially risky path
of stretching executive power to its limits. Perhaps it puts a lot of pressure on the agencies and on the White House to do things themselves. They've all seen all all of the people who will be in power in the next administration have seen the legal pitfalls that that might exist. Uh, and they're going to be very careful
about how they do stuff. It is a balance, it's a balance of trying to do something ambitious that makes an impact, while at the same time staying within the letter of the statutes that kind of lay out what power EPA has under the Clean Air Act or what power Interior has under the Mineral Leasing Act. So it's it's a tough balance. It's a big job for all of these agency lawyers, that's for sure, and other decision makers in the agencies, and it could push them to
make some moves. You know, the fact that Congress likely won't be taking the kind of bold actions that some had had hoped for. If there had been a blue wave that does put more pressure on the agencies. It might create you know, some quicker decision making or some some more ambitious moves that might be more legal, legally vulnerable.
But it's just hard to say how they're going to strike the balance because to some extent they're going to have to be kind of listening to all of that outside pressure to take action and then you know, choosing to be a little slower and do you know, listen to their lawyers and do what they need to do
to make sure they can be upheld in court. But you also, you had a great you just made a great point earlier that like they also have the benefit of hindsight, like they've seen what's happened in the last four years during the Trump administration and the eight years before that. So maybe that's one thing they have going for them is that they have a better sense of, you know, what environmental agencies can do and what they
can't do. I think that's right, to be sure. There are a lot of big environmental law questions that still haven't been answered despite years of litigation during both the Trump and Obama administrations. So there's like some big major questions that courts haven't weighed in on in terms of, you know, climate regulations and water jurisdiction and things like that.
But courts have weighed in a lot over the past four years on the Administrative Procedure Act and what you have to do to craft a new regulation to get rid of an old regulation. They've they've issued a ton of opinions on those on those questions, and that is really a guidebook for you know, what the new administration will have to do to get its agenda through. That's it for today's episode of Parts per Billion. If you want more environmental news, check us out on Twitter. We
use a pretty easy to remember handle. It's at Environment. Just that at Environment, I'm at David B. Schultz if you want to send me any holiday greetings. Today's episode of Parts Rebillion was produced by myself and Josh Block. Parts Rebellion was created by Jessica Coomb and Rachel Daegel. The music of today's episode is a Message by Jazar and the Quest by Tom Hillock and Nichols Boskovic. They were used under a Creative Comics license. Thanks everyone for listening.
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