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An insightful pre-election dive into what the election might portend for the future of environmental law.
About Law & Nature:
Discussions of Environmental Law & Policy developed by the EarthxLaw Advisory Council
Law & Nature promises lively discussions by environmental thought leaders on legal and policy issues of critical importance to environmental protection. This series is developed by the EarthxLaw Advisory Council, a blue ribbon board of prominent environmental law practitioners brought together by EarthX to assist in developing programs and facilitating dialog on environmental law and policy.
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EarthX is a media company dedicated to inspiring people to care about the planet. We take an omni channel approach to reach audiences of every age through its robust 24/7 linear channel distributed across cable and FAST outlets, along with dynamic, solution oriented short form content on social and digital platforms. EarthX is home to original series, documentaries and snackable content that offer sustainable solutions to environmental challenges. EarthX is the only network that delivers entertaining and inspiring topics that impact and inspire our lives on climate and sustainability.
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An insightful pre-election dive into what the election might portend for the future of environmental law.
About Law & Nature:
Discussions of Environmental Law & Policy developed by the EarthxLaw Advisory Council
Law & Nature promises lively discussions by environmental thought leaders on legal and policy issues of critical importance to environmental protection. This series is developed by the EarthxLaw Advisory Council, a blue ribbon board of prominent environmental law practitioners brought together by EarthX to assist in developing programs and facilitating dialog on environmental law and policy.
EarthX
Love Our Planet.
The Official Network of Earth Day.
About Us:
At EarthX, we believe our planet is a pretty special place. The people, landscapes, and critters are likely unique to the entire universe, so we consider ourselves lucky to be here. We are committed to protecting the environment by inspiring conservation and sustainability, and our programming along with our range of expert hosts support this mission. We’re glad you’re with us.
EarthX is a media company dedicated to inspiring people to care about the planet. We take an omni channel approach to reach audiences of every age through its robust 24/7 linear channel distributed across cable and FAST outlets, along with dynamic, solution oriented short form content on social and digital platforms. EarthX is home to original series, documentaries and snackable content that offer sustainable solutions to environmental challenges. EarthX is the only network that delivers entertaining and inspiring topics that impact and inspire our lives on climate and sustainability.
EarthX Website: https://earthxmedia.com/
Follow Us:
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YouTube: https://www.youtube.com/@EarthXMedia
How to watch:
United States:
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- DIRECTV (267)
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Category
📺
TVTranscript
00:00Hi, my name is Jeff Sivins. I'm senior counsel at Haynes and Boone, and for the past 45 years
00:07I've been an environmental lawyer, and for the past 30 years I've been an adjunct professor at
00:12the University of Texas School of Law. For the past four years I've been privileged to work with
00:19EarthX and Trammell Escrow and his colleague Bruce Fogarty in putting on an EarthX Law and Policy
00:27Symposium, bringing together thought leaders in the environmental community,
00:32representing diverse perspectives to discuss issues critical to environmental protection.
00:38To help us develop these programs, we've assembled a distinguished advisory council
00:43of highly regarded environmental law practitioners from coast to coast. Because of the pandemic,
00:51our last symposium was virtual. In planning the next, we realized there was another opportunity
00:58available to us, EarthX TV, which would allow us to do individual programs on a range of
01:05important topics, and which would also allow us to have a continuing discussion on EarthX's website
01:12at EarthX League. Today is the first in a series of EarthX Law and Policy TV shows,
01:19and we're starting off with an exceptional one. We're excited to present to you today's topic,
01:25a pre-election dive into what the election portends for the future of environmental law.
01:32We have three leading environmental protection practitioners on our panel. We are fortunate
01:38to have as our panel moderator John Cruden, a partner at the law firm of Beverage and Dining.
01:46John's accomplishments are truly remarkable and too numerous to mention all. After graduating from
01:52the United States Military Academy at West Point, John served in airborne, ranger, and special force
01:59forces units in Germany and Vietnam. He then went on to a distinguished law career.
02:06Pertinent to today's discussion, John is the former Senate-confirmed Assistant Attorney General
02:12of the Department of Justice, responsible for environmental matters.
02:16While at Department of Justice, John supervised some of the department's most significant
02:21litigation, including the Exxon Valdez oil spill, Gulf Canal, Deepwater Horizon oil spill,
02:29and Volkswagen emissions scandal. Held in the highest regard by his peers, John is the former
02:36chair of the American Bar Association's section of Energy, Environment, and Resources,
02:42head of the Environmental Law Institute, and president of the American College of Environmental
02:47Lawyers. It's my great pleasure to introduce my friend and one of the giants in our field,
02:53John Cruden, who will in turn introduce our other distinguished panelists. Here's John.
03:01Yes, thank you so much for your kind introduction. It's a real honor for all of us
03:07to be giving the inaugural webinar for EarthX, and Jeff, I want to thank you for your leadership.
03:14You've been leading not only Texas environmental law for a long time, but you've been
03:20the spearheading EarthX educational opportunities, which I think are extraordinary. For you in the
03:28audience, we want this to be a fun event, a relaxed event. I want you to think about,
03:34we're not virtual for a minute, we're sitting around a couch together, and we're having a
03:39conversation about what happens after the election, which occurs just a week from now,
03:46and what is that going to mean for environmental law. We're going to explore that together in a
03:52very conversational way. We have the advantage of two of the finest and brightest environmental
03:59law experts in the United States. Seth Jaffe is a partner in Boston and Foley Hogue, one of the
04:06great thinkers of environmental law. His blog on environmental law is one of the most read
04:11in the United States. He's also the past president of the American College of Environmental Lawyers.
04:17Scott Fulton is the current president of the Environmental Law Institute, but he has a long
04:24history of environmental law at the Environmental Protection Agency, where he was a deputy general
04:29counsel, or excuse me, he was a general counsel and the acting deputy at the beginning of the Obama
04:36administration. He's also had an extensive career in environmental enforcement at the Department
04:42of Justice. But here's what we're going to do. I'm going to ask each of them to give a very short
04:50opening as to what they think are some of the most important issues that will be facing a new
04:56administration. Now, remember, this is not about the campaign right now. This is about either
05:02President Trump having a second term or Vice President Biden winning. That's what we're
05:08looking at. We're looking at the future, which would largely occur in January of next year. So
05:15they're both going to open with which they think are some of the most important issues. And we're
05:19going to start with Scott Fulton. And then we have a series of questions that have been gathered by a
05:25number of people that we're going to ask the panelists, and I'm going to participate. And we
05:30hope in that process, we're going to raise all of the issues that you should be interested in
05:36when you're looking at the consequences of this important, clearly important election on
05:42environmental law. So Scott, let's start with you. What do you think is the most important
05:46things that we should be thinking about? Well, good greetings, everyone. And thank you, John and
05:50Jeff. Great to be part of this exploration at this very important moment in time. You know,
05:58rarely does an election present a starker choice and basic orientation and philosophy than this one
06:04does. There is a foundational divide in how we think about the role of government and solving
06:12society's problems and especially the federal government. There are, of course, fundamental
06:16differences of view about the nature and seriousness of the problems themselves, which
06:22makes the outcome of this election especially impactful. What that outcome will be, of course,
06:28remains to be seen. We need to take care not to prejudge it. But since the changes would likely
06:36be most dramatic if Vice President Biden were to win, it's natural in this kind of brief conversation
06:42to focus a fair amount of the commentary on that possible outcome. I might refer viewers to ELI's
06:51recent report, Environment 2021, What Comes Next, which discusses in greater detail much of what
06:58we'll be talking about here and also looks in a more complete way at the implications of either
07:05electoral outcome in terms of the important environmental questions of the day.
07:11Every new administration comes in with a list of things they want to change straight away.
07:17That's always part of the formula. The Trump administration, of course, came in with a
07:23deregulatory thrust following what it saw as a period of regulatory overreach.
07:32If Vice President Biden wins, we'll have an administration that sees its predecessors having
07:37presided over a period of deregulatory overreach. They may also have some legacy interests in some
07:44of what the Trump administration has dismantled. The net of it is this. If Vice President Biden
07:52prevails, we'll likely see a new administration working through the pages of the same playbook
07:58used by the Trump administration. A key variable on which plays are usable will be what the election
08:05produces in terms of leadership changes in the Congress. If along with a Biden win, the Democrats
08:12also get a majority in the Senate and preserve their control of the House, then other options
08:17come into play. There will be some areas of important substantive focus that will influence
08:26a new administration's approach. For example, climate change will be a major point of focus and
08:32is indeed really the key pivot point when it comes to environment, as the parties really could not
08:39be more diametrically opposed. Racial justice will likely be another point of focus in view of
08:46the recent crisis and the administration's positioning relative to it. For our purposes,
08:53what this means is likely revitalized focus on environmental justice. We could also see a reset
09:01on federal enforcement in view of the apparent accelerating downward trend in that area.
09:10There are some other major substantive areas that I'm sure my colleagues will be flagging.
09:15In terms of the tools that would likely be deployed by a Biden administration,
09:22we would expect they would include the following. First, suspension and reversal of key executive
09:28orders and policies and issuance of new ones. As these instruments do not themselves have the
09:35force of law and therefore generally do not require legal process to be changed,
09:41they are easily taken down or superseded. Second, on day one of a Biden administration, you would
09:49expect to see a freeze or a pullback of all rules pending in the federal register that are not yet
09:56final. This has happened in each of the last three party transitions. It would happen again.
10:04Third, if after the election, the Democrats were to control both chambers of Congress,
10:11along with the presidency, then the Congressional Review Act comes into play.
10:16This 1996 law, which permits Congress to undo new federal rules by simple resolution,
10:24found its first really impactful use during the early days of the Trump administration when it
10:30was used 14 times to undo Obama rules. Its utility to a Biden administration would again depend on a
10:39willing partner in Congress. And there are some questions here about the reachback day for the
10:47CRA, but it's likely that it would reach back to rules completed in the early summer of this year
10:54and thereafter. Fourth, a reset on international arrangements. Just as President Trump promised to
11:05withdraw from the Paris Climate Agreement, candidate Biden has pledged to rejoin. And
11:12being part of the Paris Agreement again would likely influence a Biden regulatory agenda in
11:19various ways. But also bears mention that the resetting of the relationship with China would
11:26probably also have some interesting downstream implications on a range of environmental issues,
11:31including ambition on the level of climate change protection. Fifth, John will have more to say
11:38about this one, I'm sure, but there would be undoubtedly an examination of cases pending in
11:44court involving challenges to Trump-era rules and the filing of motions to stay, to allow a new
11:52administration to evaluate the government's position in court, or initiate superseding rule
11:59making, or choose not to defend the challenge rule. So these are just a few elements of what
12:06to expect and a few points of focus if we were to see a change in administration. So
12:12enough from me for starters, and let me get it back to John.
12:16God, thank you. That's a lot. That's a lot of challenging issues for us to think about. But
12:20Seth, what do you think? What's going to happen?
12:24Thank you, John. It is an honor to be here on EarthX and to be on a panel with both of you.
12:32There's a lot to talk about, and I'll try to be concise in my usual pithy self.
12:38I want to frame the issues I'm going to talk about in two ways. One is important substantive
12:44issues that are going to be teed up, whether continuing the path of the Trump administration
12:51or reversal by a Biden administration. I'll talk about a couple of those. One is WOTUS,
12:57the Waters of the United States rule. The other is air standards under the Clean Air Act,
13:03the National Ambient Air Quality Standards, or NAAQS. And both of those are important because
13:09they reflect an important divide at a higher level, kind of procedural level, how EPA does
13:15its business. Because they both implicate issues about how EPA uses science and the deference that
13:22EPA is going to be given. But first, I'll try to start on a more positive note, an important set
13:28of issues for either administration where there might be room for agreement, and either might
13:34pursue. And that's two related things. One is infrastructure planning, and the other is
13:40renewable energy development, particularly wind, particularly offshore wind, but onshore wind as
13:46well, and solar. Both of those are issues that both parties often claim they're in favor of.
13:54And we've particularly noticed with the Biden administration's plan, it's basically, and there's
13:59a reason why they say Green New Deal, and the green part may not get good press, but the New
14:04Deal part may have some legs. In other words, Biden's pitching this as a jobs program. And
14:11both parties like jobs programs. The Republicans may not want to do things where there's more
14:17money spent. But these are areas where there may well be almost regardless of who wins the Senate,
14:24at least some potential for agreement between the parties to get some work done. And it is clear that
14:31if there is going to be, for example, significant renewable energy development, there's going to
14:36have to be significant infrastructure behind that with transmission lines and the like.
14:40And there's going to have to be cooperation between the parties. So that's that real quick.
14:44The other issues that are more about how EPA operates, but are illustrated by the substantive
14:50issues, are first, the waters of the United States rule, and second, the criteria of pollutant
14:56standards under the Clean Air. LOTUS is a little bit different, because the Trump administration
15:03has said very clearly, essentially, they don't care about the science. Their position is that
15:08the Clean Water Act does not authorize the extensive definition that Obama had done and
15:15that presumably Biden would return to. I think there's actually something to be said for that
15:21on the legal merits. It's certainly an open question. And we'll have to see. If Trump wins,
15:27clearly, they're going to be implementing this rule and defending it in court. And if Biden wins,
15:33they're going to be going back to the Obama rule or something like it.
15:38The Ambient Air Quality Standards begins really to tee up this issue about science.
15:44And I've speculated that this could be an issue that does what Republicans have long said,
15:50they want to end agency deference. The way it would happen, though, is a little bit different.
15:55It's not that Chevron would be overruled. It's just that a court would say, EPA, what are you
15:59doing? We're not giving you deference for your scientific conclusions when mainstream science
16:06says something different. And it will be really interesting in the courts to see what happens
16:11with challenges to Trump administration decisions regarding the NOx and particulate matter
16:20ambient air quality standards. There's an irony here, which I'll get to in a second, but
16:29whether an administration likes deference depends upon whose decision is being challenged.
16:36And it really is an important issue, because for years, the ambient air quality standards basically
16:42stood or fell on one thing. Did, and this is a little bit inside baseball, as both of you know,
16:48did the Clean Air Act Science Advisory Committee support the decision? And if they did, EPA wins.
16:54And if they didn't, EPA loses. But now we have a case act, as it's called, that is not in line
17:01with mainline science. So what gets followed? What gets deference? The broad range of science
17:08on these issues, or the case acquisition, which is traditionally gotten deference? It's going to
17:12be very interesting. And finally, I'll raise one more issue that really ties all this together,
17:18which is NEPA reform, the Environmental Policy Act. Because, as you both know, I've never,
17:26I've spent 33 years in private practice. I've never been in government. I've never been an NGO.
17:31I've always been railing against the unreasonable bureaucrats. And I've always thought that NEPA
17:36needed reform. I didn't think it needed this, the kind of reform that it just got. And here's where
17:44this irony is really, as evident as it could be, because the administration's defense of its
17:50changes to the NEPA regulation relies heavily on Chevron. Well, it's the conservatives who've been
17:56attacking Chevron. And here, the flip side is also true. We're going to have all the greens and the
18:02green states and the NGOs saying, this is inconsistent with the NEPA statute, and you can't
18:10do this, and you can't give deference to EPA's position. Well, it's going to be interesting what
18:15a court does with that. Are they going to use that sort of litigation as something to deal with
18:21Chevron overall? Or are they going to duck the big picture Chevron questions and just deal with
18:27NEPA? I have said very clearly, I think that where you stand on the NEPA reforms depends upon where
18:35you sit. I think these regulations on their own merits are defensible. And they don't mean the
18:40end of serious environmental review. But under a Trump administration, too, they absolutely could
18:46be used to shorten, to circumscribe, whatever verb or adjective you want to use, the nature of
18:52environmental reviews of complicated projects. And I'll just mention one last thing, which is when
18:57you tie this back to something greens really want, which is renewable energy development, and you say,
19:05we're going to need a lot of infrastructure, and it's going to have to get through NEPA quickly
19:09because we need these projects quickly. And then you think about people opposed to renewable energy
19:14development, and can they use NEPA in a kind of nimby way to stop projects? That's where the
19:19rubber's going to hit the road on all these issues. And I'll stop there. I think, Seth, what I like is
19:24you're presenting big macro issues like infrastructure reform, and then the more
19:30micro issues like WOTUS and what happened there, both of which are in play. There's other
19:37issues like that that clearly depend on who's in power. For instance, the whole issue
19:46of California cars. In the past administration, California had been given the authority to have
19:52their own cars. That changed during the Obama administration when we had dual standards with
19:58NHTSA. And now during this administration, that has been challenged. And I expect if President
20:05Trump stays in power for a second term, that'll continue. That litigation would continue. I would
20:11equally expect during a Biden administration that that litigation would happen exactly the
20:18way that Scott projected, and that is the Biden administration would ask to stay that litigation,
20:23come up with different standards or new standards, and then project their own policy at that stage.
20:30So that's one thing that I think would be a difference. Interestingly, what I don't think
20:34there's a difference, and that is in support of nuclear power. Nuclear power, of course, is liked
20:41by many because it's carbon free. On the other hand, we all remember all the issues associated
20:47with nuclear waste and Fremont Island and those sorts of issues that have made it unpopular in
20:53some groups. But interestingly, both the Biden administration supports nuclear power, as does
20:58clearly the Trump administration. So there's an area where I don't think there'd be much of a change
21:02at all. One thing I think we should be looking at, and that is what's going to happen in the
21:10current stimulus plan debate. You raised infrastructure as an issue, which by the way,
21:16the Trump administration has supported too, but never did. Biden administration makes that an
21:21extremely important issue, and it's an issue for jobs, it's an issue for green power, and so forth.
21:27But the stimulus plan is also on the table right now. And we don't know whether or not this will
21:34occur before the election or not. We're in the trillions of dollars. We're not in billions,
21:39we're in trillions of dollars right now. But how that money was used and how that came out
21:47would obviously have an effect on the economy, administration, jobs, and everything. If it does
21:53not occur during the Trump administration, I would expect that to be like the opening issues
21:59of a Biden administration, as it was for the Obama administration. Remember, that's what they did,
22:03big stimulus plan, I would expect that. There's one other area that I think gets overlooked a lot,
22:10and that is public lands. 28% of the United States, which includes most of Alaska,
22:19is a public land. Public land has any number of legal issues associated with it,
22:24mineral development, grazing, oil and gas development. Clearly, during this administration,
22:30the Department of Interior and the Department of Agriculture, who manage the public lands,
22:35have been aggressive in favor of mineral development, oil and gas development. My
22:40expectation is a Biden administration would not be, that they would withdraw some of those
22:48issues. I would see a big swing there as well. With those issues now that everybody's got to
22:56talk about, I want to go through, and we're going to try to get as many of these questions out,
23:00because we have a number of them. Seth teed up very well the impact that courts will have
23:07on the future, and that is a linchpin of environmental law in general. There's so
23:12much of environmental law that has come to us through the court process. That means that every
23:19single federal judge makes a difference. What we're not going to cover today is the nomination
23:26of Justice Barrett, because we have a whole separate panel on the Supreme Court, but I do
23:32want to talk, and Scott, I'm going to ask you about just federal judges in general. President
23:39Trump has been able to get 194 federal judges confirmed, which is about 20% of the total,
23:48and that's a lot. How do you see that happening in the future? What happens if it's a second term of
23:55President Biden comes in? How do those nominations occur? Does it matter then about
24:03who controls Congress? Yeah, it matters greatly. All federal judges have to go through the process
24:11of Senate confirmation, and that's where it matters in terms of political control of the
24:20Senate, and part of the reason for President Trump's success in getting judges confirmed was
24:30Republican control of the Senate. Another reason was some sort of chiseling away of the opposition
24:38levers and mechanisms that were available. It really set up back before the Trump administration,
24:47but this administration has made very good use of, including the loss of the filibuster option
24:54and that sort of thing, which was frequently deployed in these appointment kinds of scenarios.
25:01So it's an extraordinary accomplishment for those inclined to see the positive side of the
25:09equation to have moved this many judicial nominees through the system. It's amazing, actually,
25:16for those who are fearful about what those appointees will bring to the process of
25:25adjudication. I'm sure it's a worrisome phenomenon. I would guess, I haven't seen a generational
25:31analysis of where the court system stands now, but I've just imagined, just by dent of the fact that
25:40a lot of the Trump appointees are on the younger side, that the opportunity space for the Trump
25:48administration will not be as grand or significant. I mean, for a Biden administration would not be as
25:54grand or significant as that realized by the Trump administration. But that said, this clearly,
26:03given the success realized by the Trump administration in moving judicial appointees
26:10through, if the Senate turns and becomes a democratic controlled body, I think we would see
26:19a much greater focus by this particular democratic administration than may have been
26:26in the case in the past and getting its own judicial placements made and secured.
26:34Thank you. Seth, this is for you. Scott teed up one of the major changes that would come with a
26:41Biden administration would be focused on climate change. I was in the Obama administration, I was
26:48defending the President's Clean Power Plan, but in the first two years of the Obama administration,
26:52it did control the House and Senate and could not get through a climate bill. What do you see
26:58happening in another Congress with climate legislation? Do you see any legs for that or not?
27:05You know, I wish I had the ability to predict things like that. I'd be off at the local casino.
27:16And it's interesting because Scott raised the issue about Democrats making judicial
27:21nominations, you know, more of a priority. Well, that's going to be the issue. Okay,
27:26judicial nominations are priority. Immigration is a priority. Obviously, first of anything,
27:31COVID is a priority. Climate is a priority. Any administration is going to have to deal with those
27:37issues. I still remember, you know, well, I almost just got myself in trouble from a partisan
27:45viewpoint. But, you know, there was a moment early in the Obama administration when Senator Graham
27:50was working with Democrats on a variety of issues, including both immigration and climate. And he was
27:56really annoyed that the administration couldn't figure out what it wanted to focus on. I don't
28:01know what the administration is going to want to focus on. There's going to be a lot of pressure
28:04to focus on climate. And I think that's sort of why Biden has made at some level the climate plan
28:14a jobs plan. Because if it's a jobs plan, it's response to COVID. And then it's easier to
28:19prioritize than if it's just climate where he's not sure still people get a buy in. I don't know
28:26the outcome. I think they're going to make a big push. And that's really about, I think,
28:31as much as anybody can say at this point. You know, Scott, you let you talk about legacy issues
28:38that you know, a new Biden administration might want to pick up. So we've talked about
28:42Waters United States, a clean power plan, but there's another one. And it's a one that you
28:46know, well, what about the whole problems with the city of Flint? You know, during the Obama
28:53administration, that was a big deal. And everybody, this administration and certainly
28:59a Biden administration is pretty much said, we don't want any more flints. But how do you see
29:03that playing out? A lot will depend on when and where the next problem emerges. And, you know,
29:15those of us who work in these issues know that what happened at Flint is not particularly
29:24unique to those circumstances. There were some reasons that the lead pipes found their way more
29:33readily into the end of the taps that people were using and that sort of thing. But the basic reality
29:42is that from an infrastructure standpoint, we have lead pipes providing water delivery services
29:48all over this country. And the older the city, the older the development, the more guaranteed
29:56that is. And it would be good if, if the focus and concern about Flint, and the flints of tomorrow
30:07would move the conversation towards how we work this idea more fully into the infrastructure
30:16objective. So in addition to talking about transmission lines and transportation systems
30:26and that sort of thing, or even publicly owned treatment works and how we protect that
30:31infrastructure, we're also doing something about these lead service feeds for water consumers
30:42all over the country. There's a need to replace these old pipes. And there really isn't
30:51a systematic or comprehensive effort underway to make that happen. And until we move in that
30:58direction, we stand continually at risk of another Flint, Michigan.
31:05John, can I jump in here? So I think Scott's hit it on the nose. I would just kind of give a little
31:14inflection to it. Clearly, we're a, we're more likely to get something done about it if it can
31:20get moved into the infrastructure debate. Second, everybody's going to be trying to move everything
31:26into the infrastructure debate. And then the cost of, you know, a stimulus package involving
31:32infrastructure is just going to go up. And then Republicans are going to discover that they
31:36actually care about budget deficits. And so that's really the problem is how much stuff can you load
31:42on there. But that's clearly the right answer is, it's another infrastructure problem. And that's not
31:47just verbiage, it really is a major infrastructure problem. I think I think you're absolutely right.
31:52Although that does give an opportunity to for either administration, either administration can
31:58have it there. I have been given two questions, which I will take myself. The first question is
32:06all about hydraulic fracturing, that the vice president debate there, you know, there was a
32:10whole question went back and forth, what was the respective positions, obviously, the Trump
32:15administration has promoted hydraulic fracturing, which gives us natural gas, natural gas is only
32:21half the carbon issues associated with normal oil and gas production. And I think I can have
32:28handle this one simply because clearly, Trump administration supports the Biden administration
32:35has said we will not ban hydraulic fracturing. However, it appears that they would not allow it
32:40on public land. So I already mentioned to you that public lands is a big issue. That might be one
32:45example of a difference between the two. The other question I have is what about water quantity
32:51issues? I've often said when I'm on the East Coast lecturing, I'm talking about water quality.
32:57When I'm on the West Coast, I'm talking about water quantity. And by that, I mean, there's not
33:02enough, you know, some of our major rivers, Rio Grande, Colorado River, others are not supplying
33:08the water that they used to. This is a function of any number of factors, you know, more needs,
33:14climate change, and whatever. The Supreme Court this term has two different arguments by states
33:22suing other states, New Mexico versus Texas, Florida versus Georgia. And that's all about
33:28dividing up water. My own view of that is, either administration is going to have to deal with that
33:34a Biden administration will have to deal with water quantity shortage. A Trump administration
33:38has to deal with that. And that's hard going. That's hard going when you're trying to allocate
33:42those issues. But I don't think I don't see a significant difference. I just think that's a
33:46challenge for any administration. My response is, and it's a depressing one, but it is nonpartisan
33:54is the way they deal with it is by punting. That's the way they always deal with it. The
33:58book Cadillac Desert was now almost 30 years ago. And it is obvious for those who paid attention,
34:04at least in the West, we actually set out the West in a time that was unusually wet,
34:10even aside from climate change. So now you have this double whammy, we're in a more normal,
34:15or we were in a more normal period for southwestern rainfall, except now we're
34:23abnormal on the other side, because climate change is drying out the southwest. And there
34:29are no good answers. And I know what administrations do when there are no good answers.
34:35They avoid doing it. Yes, Seth, I think it was Mark Twain who made the quote
34:40that liquor is for drinking and water is for fighting.
34:46Right, Seth, I'm going to give you this. Let me show you this is a memorandum from the Office
34:53of Management and Budget, dated August the 11th. It's called implementation of implementation of
34:59section six of the executive order 13924. But what it really is, is a quite a long memo put
35:06out by OMB to all the agencies, which focuses on enforcement. So clearly, if there is another term,
35:14if there's a second term of the Trump administration, this document is going to
35:19have an impact on enforcement in the future. Can you just give a couple of examples, Seth,
35:24where this might have an effect so that our favorite issue, this document has not received
35:30much attention. And I do think since we're talking about second term as well, that it will. So can
35:35you do that? Yep. Thank you for that, because I love this issue. And thank you for publicizing
35:41my blog, because I blogged about the underlying executive order. And I said, this may be the
35:48single most important deregulatory action the Trump administration has taken. And it didn't
35:53get much press. And if he wins the second term, I think we're in agreement. We'll see. I may not
35:59be right with my hyperbole, but I may not be far off. So here's the fundamental issue, which is
36:06basically, there are a bunch of important stuff. I don't think we can get into all the details of
36:11the order or the memorandum, but just one and it kind of highlights it. And I do think it's
36:15the most important is the executive order says, all agencies, and then that's what the memo was
36:22about is how the agencies implement this, shall look into not taking enforcement action against
36:30anybody who's made a good faith effort to comply. And, you know, I don't want to get too much into
36:36the weeds here. But all of us who are good lawyers at some point went to law school, and we learned
36:39about the development of strict liability. And then we learned about, you know, regulations
36:44about corporate strict liability. And we have all these laws on the books now that essentially
36:49provide for strict liability. And the Trump administration is saying, we're not having any of
36:53it. We are not going to enforce against people who try to comply. So here's, you know, the practice
36:58tip I gave all my clients is document everything you were doing, showing that you were trying to
37:03comply, and then keep a copy of this executive order in your back pocket at all times. If the
37:09Trump administration wins, and if they mean it, it's going to be really interesting. And it also
37:15goes back to some of our other discussion about the role of the courts and what do courts do with
37:21an administration approach to enforcement that says, we're not enforcing against people who
37:26try to comply when the statutes provide for strict liability tradition. And the one reason I think
37:32this is so important, and then I'll stop you give you a chance to comment and maybe Scott is
37:38normally you think of that as enforcement discretion, and courts are never going to get
37:41into that. So it's a way that the Trump administration really can narrow enforcement,
37:46because it's hard for a court to say, administration, you wrongly exercise your
37:51enforcement discretion by refusing to prosecute. Now, if they in response to the memorandum from
37:57OMB, come out with a policy that says we will not enforce against people who are making good faith
38:04efforts to comply when the statute says otherwise, that's going to be an interesting issue for
38:09judicial review. Scott, anything? Yeah, I guess on the non reviewability of
38:17enforcement discretion or prosecutorial discretion, there is this thread in the case law
38:23that suggests that if you are abandoning a statutory responsibility, which might include
38:33the effectuation of a statutory cause of action, so outright abandonment, that that can give rise
38:40to judicial review, even though generally, exercises of prosecutorial discretion are not
38:49subject to review in court. But you know, I think that there's a there's another piece to this that
38:57probably bears discussing, which is just the relationship between the executive order,
39:03the guidance from OMB, and what ultimately EPA does in response to that. The executive order
39:13itself, of course, is without legal effect, it's it's a direction to the to the branches of the
39:20executive branch to move forward in this fashion. But the executive order itself, and I think this
39:27OMB guidance also allows a little bit of space for agencies and departments to make a demonstration
39:37that their existing body of guidances and policies are roughly in alignment
39:47with what the administration is trying to accomplish such that dramatic change might not
39:53be necessary. And it's worth remembering that EPA in particular,
40:00is the most scrutinized of all federal agencies in terms of how it uses its various authorities,
40:08including administrative enforcement, how it conducts inspections and that sort of thing.
40:15So EPA has a lot of the existing guidance and direction that are intended to make sure that
40:22it doesn't abuse its authority, that people are treated fairly, that guidance isn't misused
40:30in an enforcement context, and that sort of thing. So I wouldn't be surprised if the agency tries to
40:36make the case that it's largely in compliance. And on this issue of leniency and reserving
40:47enforcement for willful violations, there may be an argument that because the civil
40:53penalty policy allows you to take these things into account, your basic
41:01construct in terms of guiding decisions and what to refer to the Department of Justice allows you
41:06to take good faith into account. You know, maybe there's a case that can be made that
41:12and the sum of all that is kind of directionally consistent. But the bottom line is that the agency
41:19has not yet taken policy action in response to the May executive order, and is trying to
41:30figure out what to do in response to the OMB guidance. So this ends up being, I think,
41:38very election sensitive, what happens with this particular executive order and the agency
41:47follow through. If the Trump administration carries forward, we'll see. And it may be that
41:55this constriction that a lot of people see in the enforcement program through these executive
42:03orders will be realized. In fact, at the end of the day, if Biden administration comes in,
42:11these things aren't likely to go anywhere, or mean that much over the longer haul.
42:18Yeah, I think that's a great closing. In just a second or so, I'm going to ask each of you
42:25to give about 30 seconds. But for the audience, I'm sitting here with another dozen questions that
42:30I could ask. I can ask about emerging chemicals, I can ask about who's going to be the next in the
42:35Biden administration, who would be the next EPA, who would be next Attorney General, there's an
42:40enormous number of questions yet. And I want to whet your appetite, because we're going to come
42:45back. We're going to come back after the election. And then we'll know. And then we can talk more
42:50specifically about things that will happen, because by then we'll know who the next president is. But
42:55now we don't. And now we're trying to tell you both what would happen on either side. So Seth,
43:01you first, and then Scott, 30 seconds, wrap it up for us. I wish it were so easy. So I'll give one
43:10other example, actually, of an issue, because I think it speaks to where we may end up. And that's
43:16plastics. These were known forever, chemicals, PFAS. And the reason I mentioned it is,
43:22there's been a lot of congressional pressure for EPA to take action on these substances,
43:28including pressure from Republicans, because they have incidents in their districts where these
43:34things are a problem, and their constituents really care. At some level, it shows the power
43:39of Superfund as opposed to AIR, where AIR may be what really matters, but it's not as localized,
43:45so it doesn't have the support that Superfund has. I think we're going to have to see what
43:54happens with issues like that. I think we may well see, and this goes to, again, my bigger issue of
44:01how much deference the agencies get and all that. We may see Congress on this issue saying, we're
44:07not giving you any deference. We're going to tell you what the blinking answer is, and you're going
44:11to go do it. And that's really what we're going to be wondering about for the next four years is,
44:17what can Congress get done? How much do they specify versus leaving it to the agencies?
44:22And then how much clear direction do courts want to see from Congress before they're going to
44:27accept what the agency does to implement? Good point, Scott. Your concluding thoughts?
44:34Maybe three quick thoughts. One is in the realm of what's possible. The second is
44:40sort of a wish, and the third is perhaps a pipe dream. In terms of what's possible, I want to go
44:45back to Seth's observation that in the no matter what happens category, something ought to be
44:52possible on the infrastructure point, and the parties should be able to work together on that.
44:59I'll just flag one other environmental item that I think is workable if attention could be brought
45:06to it, and that is RCRA amendment, Amendment of the Resource Conservation Recovery Act.
45:14This is a law that's pretty seriously out of step with modern thinking on materials management that
45:20could be re-examined. We could create new pathways for recycled and renewable materials that don't
45:28currently exist because of the way RCRA operates. It'd be great to see some focus brought to that.
45:33I think it's possible to do something in a bipartisan way around that. On the wish list,
45:39I wish that it would be possible for a national energy policy to emerge that would take climate
45:49change into account and allow us to see what our progression needs to look like to get from where
45:56we are now to where we want to end up, which is in a low carbon future. These practical questions
46:04about how heavily we should rely on natural gas in the near term, whether fracking can be part of
46:11the natural gas contribution ultimately to reducing our carbon footprint in the near term,
46:18only make sense when you examine them in the context of that kind of national energy policy,
46:26energy transmission lines, storage, all those questions. It would be great if we had that all
46:31bundled up so that we could make rational decisions instead of being sort of flip-flopping back and
46:37forth. Final thing, this is a pipe dream. I wish an administration would reach in the direction
46:43of truly durable change, instead of just following the now kind of increasingly traditional
46:51pattern of snapback politics and snapback policies that provide a short-term dividend,
47:01a short-term yield, often a political yield, but don't offer the promise of longer-term
47:08predictability and stability. That's my pipe dream. I want to thank very much our panelists,
47:18and I have one more challenge for our audience. The three of us believe passionately about
47:24democracy in general. Some of you have already voted. Those of you who have not in the next week
47:30do so. That is how you exercise democracy. That's how you do it. I have a young grandson who just
47:38started college. He'll make his first vote. There's a lot of young people on this call. There's a lot
47:43of young people listening. Do it. Be excited about it. Learn these issues. We don't care how you vote.
47:49Just vote. We believe in America. We believe we're in a wonderful country with a bright future,
47:56but it requires people like you to learn about environmental issues and other issues and exercise
48:03what is a privilege as well as a right to vote. Thank you to Jeff. Thank you to EarthX. Thank you
48:09to Trammell Crowe and so many others. Bruce Fogarty has put this together. We look forward
48:14to coming back to you and talking to you again after the election. That's it. We're signing off.