Judges Struggle With Environmental Cases Amid Pandemic

for that. So I don't think it's news to anyone that the global coronavirus pandemic, which as of today March twenty fifth, has infected more than forty two thousand people in the US alone, has changed some things. The federal courts, which is what our focus is today, might be going into hibernation to prevent the spread of the disease, but the environment doesn't sleep. So that means all the environmental litigation that we talk about here so often on Parts

Pervillion is well, who knows you know? Who? Do us? No? Actually, Bloomberg Laws, Allen Gilmer and Ellen is with us today. So Ellen, we went over this before on our sister podcast, Cases and Controversies, which if you're into the Supreme Court. I would definitely recommend checking out. But can you just, you know, sort of talk about really briefly what some of the courts have been doing in response to the

virus and the changes that they've made. Sure, so just broadly speaking, you know, the courts have been doing a lot to respond to the pandemic. A lot of courthouses have closed their doors to the public. The Supreme Court has postponed several oral arguments that were scheduled. The DC Circuit has done the same, and it's holding some other arguments by teleconference by phone. Other circuits are also doing

the same thing. They're either postponing cases or looking at their options for holding them, for holding arguments in sort of a non traditional way, or sometimes deciding cases without oral arguments. So they're just saying, you know, we were going to have an oral argument and now we're not. Let's just not do that. Well, and that's just something

that happens occasionally in appellate courts. I haven't seen that happen yet, but they're looking at that as one of their options for how to deal with all these canceled in person proceedings. And then everything else, I guess it's just done by paper and filings and things like that, so that can just sort of go forth the same way, right exactly, although a lot of attorneys are asking for deadline extensions and stuff because everybody's dealing with sort of

disrupted schedules. Yeah, let's talk about specifically environmental cases that have been affected by this. What cases have been affected and what happened in those cases. So the biggest disruption so far is to a big case at the DC Circuit that has to do with pipelines. We have talked about it on the Parts Pavilion podcast before. It has to do with basically when can pipeline opponent get to court when it's challenging and approval by federal regulators. This

was a big case. We know it was a big case because the DC Circuit was going to hear it on bank, meaning before all the active judges. That doesn't happen very often. It was scheduled to be heard on March thirty first. So far they've just postponed it about a month. So it remains to be seen whether that date in late April is really going to happen or if they're going to do it by teleconference. Which they have done for another recent case, or do something else.

And then there's another pipeline case, but this one gets into a specific pipeline instead of sort of the federal governments pipeline approval process. Can you talk a little bit about that. Yeah, So we had an interesting situation recently where there was a pretty high stakes hearing that was scheduled for the Dakota Access oil pipeline. Dakota Access runs

from North Dakota to Illinois. But it did spawn just huge protests, thousands of people camping out in North Dakota to oppose the project, really driven by tribes and tribal advocates who were opposed to the So there's the Dakota Access pipeline case that's been affected. There's also a case from the Flint water crisis, which by the way, is still being litigated, and that's been affected as well. Yeah,

that's right. The Sixth Circuit, which is the appellate court that's based in Cincinnati, it was scheduled to hear all arguments in one of these appeals that stems from the Flint water crisis just in mid March, and the same court was supposed to hear another yet another pipeline case a pipeline safety case a few days later, and both

of those were canceled. They haven't been rescheduled yet, and so we don't know what's going to happen with those, all right, So we're going to take a quick break now, but when we come back, we're going to get way more into the Dakota pipeline case, and Ellen is going to tell us about a pretty surreal hearing that she

attended earlier this week. Don't go anywhere, all right, we're back and we're talking with Ellen Gilmer about the environmental litigation that's been canceled, postponed, delayed as a result of the coronavirus pandemic. So let's talk specifically about the Dakota pipeline case. You had to go to a hearing in this case recently, but I imagine this was a very

bizarre scenario. Can you set the scene for us here? Sure? So, instead of delaying a big high stakes hearing in the Dakota Access litigation, the District Court in DC decided to go ahead with it. This is a case that's been going on forever at this point, tribes are still trying to shut down this pipeline that is in service now pumping oil from North Dakota to Illinois. So they're still

trying to shut it down. They've challenged the latest federal review for the pipeline, and they had a big hearing scheduled on March eighteen. Instead of delaying the hearing like a lot of courts were doing that week and are still doing, the court decided to do it all by teleconference and he ordered the judge ordered all of the

lawyers to call in by phone. That makes sense. Problem for me, a member of the media is they won't just hand out that conference call number, and they also wouldn't live stream the proceedings or offer any kind of live audio or anything like that. Of course. So yeah, so the courthouse is closed to the public, but it's

still open to the media. So I went to a very weird court hearing in which I sat in a big courtroom with the judge presiding, wearing his robe like usual, presiding like it was normal, but he was presiding over a conference call. So I'm picturing, I'm picturing the podium where the attorneys would talk, and I'm just picturing like a speaker. Is that what it was? No? I mean he just had some sort of you know, your standard

office phone line set up and court staff. There were a couple of court staff members in there, and they were the ones who were actually pressing all the buttons and doing that. And then there were two people in the spectator section, myself and another reporter, and it was just a big empty room and we listened to a phone call. I guess you had to. I imagine you didn't sit next that close to the other reporter. You kept your social distancing right. Oh, yes, we all stayed

very far apart. I came armed with hand sanitizer and wipes. I wiped down my whole seat before I sat out of an abundance of caution. Yeah. So that's that's really strange, and I think it shows how the courts are kind of taking I don't want to say half measures, but I think, are you know, inventing the plan as they implement the plan here where you know, they have the

attorneys on speaker phone. They don't want the attorneys to come in, but they don't make a plan for members of the public or the press, you know, people in our profession, on how to get this information to them as well. That's right. You know, the court had to figure out a plan for this in a short amount of time, just a couple of days. The district Court in d C doesn't usually offer any kind of audio streaming, but the d C Circuit, which is in the exact

same federal courthouse, it does. So we were really hoping, we members of the media were really hoping that the court would be able to offer the audio live streaming for this. But at the end of the day, they weren't.

They didn't provide a reason, but they weren't able to do it, and that meant, you know, these myself and this other reporter were able to be in there, but no other press were in there because presumably they were following work from home orders from their offices, and also members of the public did not have any access to them. The best the court could offer was, well, you can pay for the transcript once it's available, right, which which could be weeks from now possibly. So let's talk about

the case itself. You know, it seems like the judge in this case is really motivated to keep this going. What is the significance here? Why is why did they take these extraordinary measures to have this hearing, and what will happen if they ultimately sort of, you know, wave the white flag and say, all right, we have to

delay this this, We just can't keep doing this like this. Well, at this point, all of the in person proceedings that need to happen have happened, So now it's just on the judge to write an opinion, so he can sit at home or in his office and do that. But you know, there was pressure to keep the case on schedule because the litigation has been going on for so long, because the court a couple of years ago, three years ago, ordered the federal government to do an added level of

environmental review. The government did that, and the tribes said that environmental review it's still insufficient, and so that's what the current you know, dispute is based on. And they've just been fighting it for so long. They really want to shut off the flow of oil. The pipeline runs about a half mile from the Standing Rock Sioux Reservation

in North Dakota. The tribe doesn't think the federal government and the pipeline operator have done enough analysis of various oil spill risks, so they'd like to shut off the flow of oil and that's what they're pushing the court to do. So the longer a decision gets delayed, you know, the longer it goes that they don't have an opportunity to get that relief that they're seeking. Okay, wrapping things up here, though, let's talk big picture. We're talking about

specific cases. You know, we have a handful of cases that have been delayed. But how long can this go on for? I mean, you spoke with John Cruden, who is one of the uh, you know, country's premier environmental attorneys. He was the head of the Department of Justice's Environmental

Division back in the Obama administration. He said that courts can handle a few weeks that they've done this before, you know, after natural disasters or after nine to eleven, but that the courts can't really handle a few months of this. What if what if this is for a few months, what's going to happen? Well, I imagine courts will really speed up their embrace of technology. For one, we all have, right, but there are some priorities that they'll have to I mean, they'll have to make some

decisions and prioritize things. So criminal cases generally have priority. You know, people have a right to a speedy trial and all this and most of most of the environmental cases that we cover are not criminal cases. Correct. Occasionally there are environmental criminal cases, but generally where you are covering civil cases, so those are not going to be

top price already. That doesn't mean they'll be set aside, but it does mean that if the court is struggling to you know, handle its full docket, that that's not going to be the first thing it gets done on its list. And then, you know, urgent motions like if a party is filing a motion for a preliminary injunction or restraining order to block a project in its tracks, those things will still probably get decided quickly. You know. Judges can can handle those just through you know, the

filing of briefs online. Judges can read those briefs and issue their decisions online if they need to hear oral argument. You know, it depends on how much technology they're embracing, but I don't expect that, you know, a technological issue would stop them from deciding a really urgent matter. And then really quickly, let's talk about rule making. You know, the Trump administration is defending a lot of its environmental rules. I'm thinking of a rule that governs power plant emissions,

clean water emissions from automobiles and other motor vehicles. Is this delay good or bad for them? I'm genuinely confused and not really sure if this helps or hurts the administration. So it's generally not thought to be a good thing for the administration. And here's why. Basically, the like you mentioned, the administration has finalized all these environmental regulations. Most of them are either rollbacks or kind of weakened replacements for

Obama era rules. Some go back farther to things that pre date the Obama administration. The Trump administration has an interest in decide or getting these things litigated quickly because if they get an adverse decision from say the DC Circuit, they want to be totally sure. They're the ones who are going to be in office to file a cert petition, file an appeal, to take follow up action once they

get a decision. So, for example, the power plant rule you mentioned, that's the Affordable Clean Energy role from EPA, the Trump administration has said, we want to litigate this quickly. We have an interest in getting this done fast. And when you say done fast, it means They essentially they want to get it to the Supreme Court as soon as possible before the end of the president's term, correct in case there's a change in administration, so they want

to get it. They want a decision from the DC Circuit basically this calendar year, so that if it's if it's a decision that's not in their favor, they have a chance to file a cert petition and the Supreme Court can take it up. Honestly, the timeline for a lot of these cases has already slipped, so it was already looking like the Trump administration wasn't going to be able to get that ideal timeline for the litigation. However, you know, extra even an extra few weeks, it doesn't help.

It shouldn't affected a whole lot. So the Affordable Clean Energy Rule case, that's the power plant case, they just delayed yesterday. They just delayed the timeline by a few weeks for briefs, and the DC Circuit still has to hear all arguments in that case in the fall. So we're probably not looking at a big difference there. I mean, the way the courts typically work, a delay of a few weeks could have happened even without a global pandemic,

you know, totally. Yes, their delays are very common here. Yes, all right, that is it for today's episode of Parts Pervilion Ellen and our other reporters have been doing amazing work during this crazy time, so check out their great work at our website newsdop Bloomberg Environment dot com. That website, once again is newstot Bloomberg environment dot com. Today's episode of Parts Pavilion was produced by myself along with Josh Block and Marissa Horn. Parts Pabillion was created by Jessica

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