Commandeering for Conservation?

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Welcome to FEDSOC Forums, a Federalist Society podcast. I'm Elizabeth Slattery,
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vice President of Practice Groups. Be sure to subscribe wherever
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you get your podcasts so you won't miss an episode. Now,
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please enjoy today's conversation.
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Good afternoon, everyone, and welcome to FEDSOC Forums.
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My name is Cameron Westbrook.
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I'm a recent graduate at the University of Denver Surm
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College of Law. I also serve as a student liaison
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to the Federalist Society's Energy and Environment Practice Group. As
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a reminder, all opinions express are those of our speakers
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and not of the Federalist Society, as the Federalist Society
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takes no positions. Today's program is titled Commandeering for Conservation
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question Mark. Our moderator is Professor Jonathan Adler Taswell Taylor
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Professor of.
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Law and William H.
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Cabell Research Professor at the William and Mary Law School.
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One note for our audience before we begin, If you
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have any questions start the webinar that pertain to the
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topic at hand. Please submit them through the zoom's Q
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and a feature located at the bottom of your screen,
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not the chat, so that.
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In that sense we'll be able to.
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Access them later in the program.
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With that note, I'll turn things over to our speakers
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to start the conversation. Professor Adler, thank you so much
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for joining us in moderating today's discussion.
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Well, great, it's a pleasure to be here to moderate
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this discussion on whether the application of the Endangered Species
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Act to state and local governments raises commandeering and other
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federalism concerns.
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That we or that the courts should be worried about.
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And I'm joined by two experts who I will introduce
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in a moment just a little bit of background before
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we start, As if you're here on this program, you
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probably know that the Inaged Species Act makes it illegal
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to take an endangered species without an incident take permit.
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Take is defined broadly under the Act to take means
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to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
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or collect or attempt to.
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Engage in any such conduct.
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And Keida's definition is harm, which has been interpreted broadly
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over the years to include habitat modification which actually kills
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or injures wildlife. Clearly, this definition applies to actions taken
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by individuals, corporations, even government lengthies that are directed against
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individual members of listed species, and has been understood and
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applied to include conduct that disturbs nesting and breeding and
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feeding behavior. But a question that has come up repeatedly
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over the last couple decades is the extent to which
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this definition can or should apply to state and local
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governments when they operate regulatory or other programs that may
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allow or facilitate or permit activities that constitute harm or
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contribute to harm to listed species, and if so, whether
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or not constraining state local governments in this way, or
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perhaps forcing them to regulate private activity so as to
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protecting dangered species, violates the anti commandeering principle that was
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articulated in cases like New York versus the United States
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and Prince versus United States.
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This isn't merely a theoretical question.
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Courts have wrestled with this, going back to an opinion
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called Strahan versus Cox in the US Quarter Appeals for
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the First Circuit. Most recently, just this past month, the
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Use Court of Appeals for the Eleventh Circuit herd oral
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argument in a case called Bear Warriors United versus Secretary
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of the Florida Department of Environmental protection. In this case,
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the Bear Warriors Group, a conservation organization, is suing Flora's
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Department of Environment Protection, alleging that it's permitting of septic
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ten and the like a contribute to water pollution that
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in the aggregate degrades habitat for Florida manatees and manatees
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are protected under the Endangered Species Act. A district court
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entered an injunction against the state, prohibiting permitting new septic
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tanks in the watershed and requiring it to implement various
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other conservation programs. And to some this injunction looks like commandeering.
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Looks like the federal government forcing a state to implement
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and administer a federal regulatory program or to administer its
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own regulatory program in line with federal requirements.
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So the other circuit arguments.
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Both that the Endangered Species Act doesn't authorize this sort
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of order, but also that it might violate the anti
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commandeering principle. To help us kind of unpack these questions
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and figure out, I guess, perhaps what the eleventh Circuit
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or other circuits should do. Joined by two Endangered Species
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aide experts, both of whom it participated in amigas briefs
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that were submitted in the bear Warriors case.
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First, we're going to hear from Jonathan Wood, who's.
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Vice president of law and Policy at the Property and
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Environment Research Center in Boze, Montana, and who previously worked
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as an attorney at the Pacific Legal Foundation, litigating on
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behalf of landowners and others affected by a government regulation.
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Then we will turn to Professor WILLIAMS. Snape the third,
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who is director of the Program on Environmental Energy Law
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at the American University of Washington College of Law, and
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he too has been involved in in litigation involving environmental regulation,
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representing various environmental conservation environmental and conservation organizations, including the
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Center for Biological Diversity. So so the way, I'm going
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to first turn to Jonathan Wood to kind of give
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us kind of a brief case about why it is
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one might think that orders like this district court order
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violate the end the commandeering principle.
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Well, thank you, thank you, Jonathan, and thank you to
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the Federal Study for hosting this discussion. I think for
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this part of the session, I might have the easy role.
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Though we turned to policy, I think I'm going to
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get a bit harder. I think then the commandeering principle
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application here is actually pretty straightforward, and if use sold
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to compare it to the most recent Supreme Court case
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on the principle, which is ncaa versus Murphy, where the
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Supreme Court essentially articulated the standard as the Constitution was
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intentionally designed to give the federal government in Congress the
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authority to regulate individuals directly, and it was a conscious
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choice not to allow them to regulate states as such
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that to the extent the Congress is regulating states and
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private parties in the same way. So where a state
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is involved in a commercial market or as a landowner,
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perhaps that would be okay. But where Congress is essentially
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trying to co opt state's sovereign authority to give them
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to regulate in pursuit of federal aims, that is unconstitutional.
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In that case, Congress wanted to outlaw sports gambling everywhere
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except for Nevada for political reasons, and state starts to
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object if we don't want to be in the business
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of outlawing sports gambling, FEDS. If you want to do that,
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do it yourselves, and the Supreme Court said that was right.
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So here the basic argument that bear Warriors has made
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is that there are a lot of owners of septic
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tanks in Florida who are contributing a small amount of
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nitrogen that collectively affects the habitat for amanatees, a species
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that has been improving but still has some habitat quality constraints.
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And another thing going after those individual owners of septic
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tanks who bear were sort of acknowledged you probably couldn't
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show a take on behalf of any one of them
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because their contributions are so small. It assumed the state
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and said that you are responsible, and that under the
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essay it is a violation for the state itself to
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fail to regulate sufficiently to prevent harm to the species.
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What's novel and interesting about this case is that the
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reason why the state is the target is because it's
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doing things to help manatees, not because it's doing nothing.
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Over the last ten to fifteen years, it has been
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actually working to try to improve water quality, including by
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regulating septic tanks, and over that time water quality, they've
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achieved essentially half of their goal for improving water quality.
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But they're essentially being penalized because they've done something but
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not enough. If they had taken a fully hands off approach,
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this sort of theory couldn't have been raised. So there
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are probably three arguments or explanations given for the anticommduring principle.
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I think all of them map on quite well to
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this scenario. The first is structural separation of powers, that
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we want Congress regulating individuals, not states themselves, and just
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in describing the case, you can sort of see how
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that is implicated here. But the two others are also irrelevant.
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One is democratic accountability that we don't want voters and
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regulatdentities to be confused as to the source of regulatory
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penalties that are being imposed on them, and if Congress
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and the federal government are able to channel the regulation
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through the states, it can be harder for the feeling
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the consequences of regulation to know who to hold accountable.
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And we actually see this playing out in Florida itself,
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where they're currently ongoing lawsuits suing both the federal government
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and counties over ESA prohibitions that are even put on
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them because no one can figure out who exactly is
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in the driver's seat there. And the third is fiscal
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accountability that if Congress can impose the enforcement responsibility of
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its policies onto states. It has no incentive to think
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about how to enforce or structure its programs to actually
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be cost effective and efficient. And that's essentially what you
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have here in the small harms problem. Congress might need
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to think creatively about how to deal with those sorts
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of problems and other statutes. It has done that work,
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but it hasn't under the essay, and part of the
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reason might be the expectation that litigants will sue states
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and force them to do it, and they'll have no
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choice to offer different approaches or to be concerned about costs.
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And then the other thing I want to briefly touch
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on that I think is relevant to this legal question
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is whether the preemption preemption doctrine might be an out
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to an otherwise strong anti commandeering problem here in the
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oral argument for the other in circuit Bear Warriors argued
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that commandeering is essentially irrelevant, relying on Straham versus Cox,
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the thirty year case that Jonathan mentioned, and so that
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instead what we have here is a preemption issue that
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states cannot authorize something that federal law prohibits, and so
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if federal law prohibits take states cannot issue any permit
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that would perceivably result in take. Notably, they are not
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align in any statutory tax. For that argument, there is
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a preemption provision in the statue, but it's incredibly narrow
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and there are quite a few savings clauses in the
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statue to reserve state authority to the maximum amount. There's
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also no field preemption argument here. It would be act
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frankly absurd to interpret the essay to preempt all state
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regulation of any activity that might cause take. There's just
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no way for the Fish and wil Life Service to
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regulate farming, home building, septic tank system and pervasively regulate
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all the incredibly broad range of activities that can cause take.
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And finally, there's really no conflict preemption argument here. You know,
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it is quite common for the federal government and the
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states to jointly regulate the same sort of activity for
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different purposes, and we generally don't hold that a state
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in regulating has to assume a regulate dentity will ignore
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or violate federal prohibitions as a part of their own
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permitting strategy. And that's kind of the unstated principle here
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that if the state issues a permit for a septic tank.
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It can't assume that the septank owner will also deal
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with the federal government to ensure ESA compliance. And then
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I guess the bow on this is the remedy the
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court issued here that I think the commanding problem comes
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in the interpretation of the essay, not just in the remedy.
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But it is noteworthy that what the court held here
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when it found that the state had taken manatees. And
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finally the essay was that the court constructed its own
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new state policies. The state was required to ban septic
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tank installation within the watershed that affects the manity, to
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implement various conservation programs for the benefit of manity. And importantly,
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it couldn't change either of those imposed state policies unless
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it got the permission of the federal government first. So
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the state was directed to go get a permit from
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the ficial LiLine Service and get federal approval of any
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alternative state policy the state might prefer. And that again,
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that's straightforward anti common gearing. There's really no way to
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distinguish this case from the NCAA versus Murphy sports gambling case.
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All right, thank you, Jonathan, so we've heard the case
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for why applying the Needed Species Act in this way
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should raise commandeering concerns. Bill, I suspect you disagree. So Bill,
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why don't you take a moment to explain why you
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don't think these commandeering arguments should be persuasive to the courts?
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Sure, thank you so much to both the Jonathans.
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Well, I was going to start with some of the
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issues I agree with Jonathan wood On, and.
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I'll just say briefly what those are.
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I agree, even though we may not agree on the specifics.
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I agree that there are some very interesting and perhaps
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serious Endangered Species Act implementation and enforcement issues that are
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raised by this case, certainly relatively unique from a remedy.
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Point of view, But I'm going to argue.
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That they don't even come close to rising to a
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constitutional issue.
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I know we live in a.
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World today where.
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Favored free market and sort of right leaning principles seem
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to be embraced by the current Supreme Court. I get
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that that is reality, but I don't think this is
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one of them. I think I think even this Court
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could see the difference between their existing Tenth Circuit jurisprudence
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and commandeering decisions versus.
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What is happening here in this manatee case.
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And let's just look at the two cases that the defendants,
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the State of Florida depart environmental protection that they rely upon,
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and they were both mentioned. One of them was mentioned
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by Jonathan Wood just a second ago. First in the
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Murphy versus NCAA case that was an instance where Congress
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banned the states, told the states, told the state legislatures
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that they are not allowed to authorize sportscandal, directly told
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the states they had to stay out of that area,
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and that was held to be, as Jonathan correctly stated,
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a violative of the commandeering prohibition in the interpreted in
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an attempt amendment. The Eleventh Circuit case that Jonathan I
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know knows about. I don't think he mentioned it in
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his opening he did, I missed it, but has been
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briefed and was a big issue at the Eleventh Circuit
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is the Bourbon case. And there again Congress, in the
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context of a federal program, said that the states must
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issue an ID card for citizens and for individuals so
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that the federal government could better implement the program. That
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it was an issue here in both of those instances.
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The eight was being commandeered to either not do something
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that it had the power to do, or to assist
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the federal government in enforcing a federal standard. That is
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not what is happening here with the manatee case. First
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of all, the Endangered Species Act prohibition against take applies
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to all entities, individuals, corporations, local governments, state governments, the
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federal government, federal agencies, state agencies, you name it. You
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can't take an endangered species. That's well established. No one
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is disagree with that. And so here the state was
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found through its actions, to be causing a take of manity.
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And we'll get into.
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The question and answer the vicarious liability and causation. I
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think those are some interesting issues, and I'm certainly writing
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and willing to talk about them. But from a constitution
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a point of view, the state has tons of options,
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lots of options. And in fact, it's funny that we
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keep talking about the sept Tank moratorium, because the court
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was very clear that it was a temporary moratorium, a pause,
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a timeout, very similar in the fifth Amendic context of
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the Lake Tahoe case. If you recall the Lake Tahoe case,
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where that was held not to be a taking where
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the Tahoe Regional Agency stopped and this was a fifth
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Amendment taking case, but I think it's applicable stopped for
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a period of time all new permits so that the
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local agencies could get a grip on water use in
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water quality in the area. I think that analogy holds here,
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and indeed, I find it very interesting that the Eleventh
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Circuit in this case.
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I have no idea how they'll decide.
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Obviously it's pending right now, but they certainly have a
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lot of authority to amend the District Court junction or
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to change it or to modify it. And I think
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that's a legitimate issue that ought to be on the table.
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But that's an Endangered Species Act issue, not a constitutional issue.
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And in fact, I'm not aware of any Supreme Court
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case or Court of Ipial's case that has held that
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in action by the government is commandeering when the federal
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government is seeking simply to enforce its own statute and
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to enforce what is well known to be applicable to
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all parties. That's what's going on here in this case.
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And this is not a new principle. There are cases.
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It's not just the Strahan v. Cox case. There's a
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red wolf case where pilinary injunction was granted against the
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North Carolina Wildlife Resources Commission for enjoining coyote hunting because
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it was interfering with red wolf recovery.
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Similarity, and Center for Biology Diversity v.
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00:19:00.839 --> 00:19:04.680
Little Plants to successfully challenge the statewide host issuance of
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licenses set to wolf snares due to a reasonable likelihood
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that it would ensnare threaten grizzly bears. So this is
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not the first time by any means that states have
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been held not to be able to violate the Endangered
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Species Act. That just because their state government doesn't mean
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they're allowed to take actions that take a listed species
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that's a no know and is not allowed.
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And I guess I'll just.
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Finish maybe a little bit early, because I think the
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question and answer may yield a more interesting discussion. I
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just want to repeat, while Jonathan and I may disagree
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on exactly what that remedy might be, I want to
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repeat that there are ample ways under the Endangered Species Act,
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as a matter of statutory and regulatory law, to craft
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a remedy here that works for all parties. I think
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one of the underlying tensions. Here is and maybe this
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will be my life point is that while the Endangered
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Species Act does have cooperative federalism provisions and it must
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notmly under section six, but Section four there are a
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lot of provisions that mandate and ensure that the states
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have a role in the conservation of federally listed species.
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That cooperative federalism is not like the Clean Water Act
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and Clean Air Act, where the states essentially get permitting
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authority under those statutes. The Federal Endangered Species Act, whether
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you like this fact or not, was passed precisely because
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and has been affirmed by Congress, because the states were
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falling down on their job. They were not protecting species.
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Species were going extinct. In the federal government, through the
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Commerce Clause and the Treaty Clause, federalized the protection of
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those species. I don't believe that's even remotely at issue here,
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and so if that's the case, then the states must,
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like all other parties, comply with the Endangered Species Act.
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And I think here the state, while it did have
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its own remedy, clearly that was not enough. And I think,
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really this is a constitution. This is a really a
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policy issue masquerading as a constitutional issue in my view.
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So I'll end it there and look forward to some
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good Q and A.
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So, what of a Jonathan is this? Is this really
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a policy issue masquerading as a constitutional issue. You've you've
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thought some response, and I guess also, you know.
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Might be worth addressing.
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You know, if you're right, what does that mean for
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how the inager species actually implemented?
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Yeah, so it will surprise no one that I disagree,
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and I think the way I would put it so
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that what the spok Court said is that the purpose
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of the Anti comday in princelye and what it does
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is prohibit Congress from quote seeking to control how states
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regulate private parties. That is absolutely what is happening here.
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The only reason why Florida is accused and has been
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found to violate the essay is that it is not
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regulating private parties enough to prevent take of threatened species.
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It's nothing it's doing directly to cause take. And that's
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why I appreciate the point that Professor State makes that
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Congress can regulate states the same as they regulate private citizens.
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So if a state is acting as a commercial actor,
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as a landowner, or doing things itself, that would violate take.
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So if a state wildlife official goes out in traps
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and endangered species, the ESA can apply to that the
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same way applies private parties. But there is simply no
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private analog to the federal government controlling how states regulate
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activities that can cause harm to endangered species. That is
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commandeering on its face. This they had come up with
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the oral argument, and essentially what the Bear Wars attorney
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argued is that the anti commandeering Doctrine shouldn't be thought
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of as a substan constraint on federal power, but instead
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a drafting convention. That it prohibits Congress from being too
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explicit in trying to control how states exercises sovereign authority.
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But if it does it implicitly or as part of
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a larger, large enough program, it can do the same
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thing without raising the same problems. And that totally underlines
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the purposes behind the anti commandeering doctrine. So I think
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saying that because the statute regulates states and private parties
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it is okay for the commandeer doesn't work. And you know,
385
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I didn't get the sense of the oil arguments the
386
00:23:33.400 --> 00:23:36.480
Eleventh Circuit judges or buying it though as Snape said,
387
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I don't want to make predictions on how that court
388
00:23:38.200 --> 00:23:41.599
will work, but I think it's really hard to square
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with Murphy versus NCA and its articulation with the doctrine
390
00:23:46.680 --> 00:23:48.400
on the policy. I think is actually where I think
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00:23:48.440 --> 00:23:51.079
this case gets a lot harder. As I said earlier,
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00:23:51.119 --> 00:23:53.640
a lot of harms to endangered and threatened species are
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very small and they are difficult to address through a
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traditional policing approach. So broad federal prohibition that requires the
395
00:24:01.039 --> 00:24:05.519
few hundred federal law enforcement officers within Fish Wiley Service
396
00:24:05.559 --> 00:24:08.200
to enforce is going to be really difficult when you're
397
00:24:08.240 --> 00:24:12.519
talking about thousands of septic tanks for one species, not
398
00:24:12.680 --> 00:24:15.960
to mention the millions of farms and home construction all
399
00:24:15.960 --> 00:24:19.599
the other projects affecting the nearly three thousand listed species.
400
00:24:19.880 --> 00:24:22.119
I take that point. I think it's a fair one,
401
00:24:22.640 --> 00:24:26.240
but it's not reason to ignore the constitutional problem. And
402
00:24:26.319 --> 00:24:29.359
it's a federal problem, not a state problem. So the
403
00:24:29.720 --> 00:24:31.559
owners should be on the federal government to find more
404
00:24:31.559 --> 00:24:35.039
effective ways to deal with that problem rather than foising
405
00:24:35.119 --> 00:24:37.960
the costs of solving it onto the state. That's what
406
00:24:38.000 --> 00:24:40.480
the doctrins is for. But I also think there's a
407
00:24:40.599 --> 00:24:44.480
conservation downside to commandeering here. As I said earlier, the
408
00:24:44.519 --> 00:24:48.559
only reason why Florida can plausibly be alleged to violate
409
00:24:49.599 --> 00:24:53.519
the tape prohibition is because it is regulating to improve
410
00:24:53.599 --> 00:24:56.319
water quality. If it took a total hands off approach,
411
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then there would be nothing that bear warriors could assert
412
00:25:00.119 --> 00:25:02.640
the oral argument. And so what you may actually see
413
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if commandeering becomes widely accepted in this arena is states
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putting their hands up and saying, well, if we don't
415
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get to decide our own policy, we're you're just gonna
416
00:25:11.599 --> 00:25:14.880
be dictated to anyway. We're out of the business. Fish
417
00:25:14.880 --> 00:25:18.680
and Wility Service good luck being the comprehensive regulator of
418
00:25:18.720 --> 00:25:21.599
every activity that may affect in endangered threatened species. And
419
00:25:21.640 --> 00:25:24.400
that would be the worst outcome for species because there
420
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is simply no way the Fish Wility Service could take
421
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on all that responsibility. So I'll stop there. I mean,
422
00:25:30.839 --> 00:25:32.920
I think there's some other things we could get into,
423
00:25:32.960 --> 00:25:34.200
but that's the big one for me is that I
424
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think there is a positive conservation policy case here, but
425
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there's also a really big negative downside that I can't
426
00:25:41.680 --> 00:25:43.559
I don't think we can dismiss.
427
00:25:45.119 --> 00:25:46.799
So Billy let me turn to you, and I think
428
00:25:46.839 --> 00:25:49.480
in that last hypothetical Jonathan brought up, I think there's
429
00:25:49.480 --> 00:25:55.319
actually both a legal and a policy question there. One is,
430
00:25:56.240 --> 00:26:00.480
you accept the claim that Florida could avoid this problem
431
00:26:00.559 --> 00:26:03.559
by simply getting out of the business of permitting septic
432
00:26:03.599 --> 00:26:07.880
tanks altogether. And and some we say, we're not going
433
00:26:07.920 --> 00:26:08.839
to regulate them at all.
434
00:26:09.519 --> 00:26:10.359
Do what you're going to do?
435
00:26:11.960 --> 00:26:15.880
Uh, And that would presumably be worse for amnatees, but
436
00:26:17.519 --> 00:26:21.240
would no longer be as strongoma argue, would no longer
437
00:26:21.240 --> 00:26:24.200
be a violation of manager species? Is that true? And
438
00:26:24.440 --> 00:26:27.119
should we be worried about that? Should we be worried
439
00:26:27.200 --> 00:26:33.440
that states as regulators or states may be less over
440
00:26:33.480 --> 00:26:38.039
time less willing to regulate in areas if they're going.
441
00:26:37.880 --> 00:26:38.759
To be.
442
00:26:40.039 --> 00:26:44.839
Directed how how to regulate by either official life service or,
443
00:26:44.920 --> 00:26:50.839
as may may be the case, by courts responses to
444
00:26:50.960 --> 00:26:51.680
citizen suits.
445
00:26:54.160 --> 00:26:55.599
There's a couple of questions in there.
446
00:26:56.640 --> 00:27:00.720
I mean, I guess Florida could decide not to regulate tanks,
447
00:27:00.759 --> 00:27:02.720
but that seems to be a pretty bad idea for
448
00:27:02.799 --> 00:27:04.519
a number of human health reasons.
449
00:27:05.119 --> 00:27:07.359
So I mean, yeah, they could do that, but that.
450
00:27:07.359 --> 00:27:10.759
Seems to be shooting oneself in the foot, and there
451
00:27:10.759 --> 00:27:13.440
would still be liability if the septic tanks were being
452
00:27:13.480 --> 00:27:16.039
operated in a way that HARMSMNATE. So at some point
453
00:27:16.079 --> 00:27:18.960
those septic tanks, if indeed they're causing the harm, are
454
00:27:19.000 --> 00:27:22.720
going to be in the crosshairs of species protection.
455
00:27:23.720 --> 00:27:24.839
But I want to go back.
456
00:27:25.480 --> 00:27:27.599
I feel like we're repeating ourselves a little bit. I
457
00:27:27.599 --> 00:27:30.279
think it's an important point because, as the Chief Justice says,
458
00:27:30.359 --> 00:27:35.480
facts matter, and I think Jonathan Wood keeps reciting the
459
00:27:35.559 --> 00:27:39.920
facts in a slightly disingenuous way, which is unlike NCAA
460
00:27:40.160 --> 00:27:43.079
or Murphy versus UNC double A, and unlike Bourbon.
461
00:27:43.880 --> 00:27:46.640
Here, all the federal government has said.
462
00:27:47.240 --> 00:27:50.000
Is you got to take a time out on septic
463
00:27:50.039 --> 00:27:53.240
tanks until you figure out how'll better protect this species.
464
00:27:53.680 --> 00:27:57.839
The state has massive flexibility on how it goes about
465
00:27:58.039 --> 00:27:58.599
doing that.
466
00:27:58.960 --> 00:28:01.160
There are a lot of different ways in which it
467
00:28:01.200 --> 00:28:01.559
can do.
468
00:28:01.519 --> 00:28:04.319
That, and a lot of ways that likely include authorizing
469
00:28:04.400 --> 00:28:07.440
new septic tanks at some point. So, just as a
470
00:28:07.480 --> 00:28:09.960
matter of fact, this is a temporary moratorium.
471
00:28:10.559 --> 00:28:12.559
All the options for the state are on.
472
00:28:12.400 --> 00:28:15.880
The table, and I just think as a matter of
473
00:28:16.039 --> 00:28:19.160
a fact, that's way different than the commandeering.
474
00:28:18.599 --> 00:28:21.680
Cases that we have had so far.
475
00:28:22.519 --> 00:28:25.759
As it relates to the state of Florida, I mean,
476
00:28:26.519 --> 00:28:27.920
it's a big state, a lot.
477
00:28:27.720 --> 00:28:30.279
Of government officials, you know, I don't want to simplify.
478
00:28:31.200 --> 00:28:35.839
You know, it's got a very complex political and regulatory system.
479
00:28:36.400 --> 00:28:38.799
But this is not a state at this point that
480
00:28:38.960 --> 00:28:41.960
is known and a governor that is known for its
481
00:28:42.400 --> 00:28:44.079
vibrant environmental protection.
482
00:28:44.440 --> 00:28:44.680
Nita.
483
00:28:44.680 --> 00:28:49.200
I remind you about the alligator Alcatraz project, where Florida
484
00:28:49.279 --> 00:28:52.720
insisted for over a year that there was no federal
485
00:28:52.720 --> 00:28:55.359
involvement even though clearly there was, and eventually had the
486
00:28:55.400 --> 00:28:58.400
back off and realized that the whole project had problems.
487
00:28:59.000 --> 00:29:01.680
And so the reason I'm bringing that up is the
488
00:29:01.759 --> 00:29:05.799
Endangered Species Act, especially at the state and local governmental level,
489
00:29:05.880 --> 00:29:08.160
is only as good as the state and local governments
490
00:29:08.200 --> 00:29:10.440
want it to be. That the state and local governments
491
00:29:10.480 --> 00:29:14.039
and red states generally it's not always read, but generally
492
00:29:14.519 --> 00:29:16.960
they want to play hardball, and they want to be obstinate,
493
00:29:17.000 --> 00:29:18.799
and they want to fight the fish. And while a
494
00:29:18.920 --> 00:29:21.640
service tooth and nail at every decision, state and local
495
00:29:21.680 --> 00:29:24.720
governments can do that. But that's precisely why we have
496
00:29:24.799 --> 00:29:28.920
a citizen supervision. Because Congress said and has reaffirmed that
497
00:29:29.000 --> 00:29:33.680
if any person, any entity, any government is taking enlisted species,
498
00:29:34.519 --> 00:29:36.880
private individuals are allowed to sue them in court to
499
00:29:36.880 --> 00:29:37.319
stop it.
500
00:29:38.240 --> 00:29:40.759
So, you know, if you don't agree that.
501
00:29:40.759 --> 00:29:44.920
The septitanks are the proximate cause of the amanatees take,
502
00:29:45.559 --> 00:29:47.599
then you can go argue that and maybe you're right
503
00:29:47.680 --> 00:29:50.319
or maybe you're wrong. But again, that's an Endangered Species
504
00:29:50.359 --> 00:29:53.359
Act issue. There are all sorts of options for the
505
00:29:53.400 --> 00:29:56.440
state to move forward, and they have not been common deer.
506
00:29:56.519 --> 00:29:59.720
They're just being told stop violating a federal statute.
507
00:30:00.799 --> 00:30:02.680
Just to follow up on that, you said at the
508
00:30:02.680 --> 00:30:06.559
beginning that if the Florida backed off and just said
509
00:30:06.799 --> 00:30:08.759
you no longer need a permit for a septic tank,
510
00:30:10.880 --> 00:30:12.440
you know, if you create a nuisance or something, maybe
511
00:30:12.480 --> 00:30:14.519
we'll come after you, but you no longer need a permit.
512
00:30:16.519 --> 00:30:19.720
You agree that would that be a violation of the
513
00:30:19.759 --> 00:30:23.039
Neager Species Act or is that something Florida can do?
514
00:30:23.720 --> 00:30:25.720
And if it would be a violation of the Major's
515
00:30:25.720 --> 00:30:28.519
Species Act, how is it different than Florida never having
516
00:30:28.559 --> 00:30:31.279
a septic tank permitting program in the first place.
517
00:30:32.880 --> 00:30:35.039
If Florida wants to get a good question, if Florida
518
00:30:35.079 --> 00:30:38.440
wants to get rid of its septic tank program, which
519
00:30:38.440 --> 00:30:40.759
of course would have to go through some notice and comment,
520
00:30:40.839 --> 00:30:43.400
would go through a process, and I think you would
521
00:30:43.440 --> 00:30:46.319
think that the process would include a discussion of what
522
00:30:46.359 --> 00:30:48.920
that would mean for compliance with not only the Endangered
523
00:30:48.920 --> 00:30:51.920
Species Act, but Clean Water Act and other federal and
524
00:30:51.960 --> 00:30:55.359
state laws. I think that we would figure out what
525
00:30:55.559 --> 00:30:57.839
we being the big w we'd figure out a way
526
00:30:58.480 --> 00:31:02.559
in which actions that are still harming the manitee could
527
00:31:02.559 --> 00:31:05.720
be challenged. If they were still harming the manatee, if
528
00:31:05.720 --> 00:31:08.160
the state got completely out of the business of approving
529
00:31:08.200 --> 00:31:11.000
septic tanks, maybe the state could get out of that,
530
00:31:11.039 --> 00:31:14.000
but there would be some entities that were continuing to
531
00:31:14.039 --> 00:31:18.119
operate septic tanks, continuing to do actions that harm water quality,
532
00:31:18.119 --> 00:31:21.359
that take amanites, and at some point, as someone who
533
00:31:21.440 --> 00:31:24.680
has watched species conservation efforts over the last forty years,
534
00:31:25.200 --> 00:31:27.079
you know this is the death by a thousand cuts.
535
00:31:28.039 --> 00:31:30.599
That's what the Endangered Species Act is there for, is to.
536
00:31:30.519 --> 00:31:32.880
Provide tools to stop that from happening.
537
00:31:34.559 --> 00:31:37.400
And so whether the state was involved or not, there
538
00:31:37.440 --> 00:31:41.480
would still be legal leverage and legal liability for those
539
00:31:41.640 --> 00:31:46.359
entities that continued to take actions that through proximate proving
540
00:31:46.400 --> 00:31:49.559
approximate cause or harming listed species that doesn't go away
541
00:31:49.640 --> 00:31:51.759
just because the state stops approving septic tanks.
542
00:31:52.039 --> 00:31:57.599
Oh yeah, sure, No, I was just wondering if it
543
00:31:57.640 --> 00:31:59.640
removes the state as a potential depending death.
544
00:32:00.359 --> 00:32:00.640
It might.
545
00:32:00.680 --> 00:32:02.240
I don't know why the state would want to do that,
546
00:32:02.319 --> 00:32:04.400
but if the state really wants to cut off its
547
00:32:04.440 --> 00:32:06.720
nose despite its face and that way, I think the
548
00:32:06.720 --> 00:32:07.799
state could maybe do that.
549
00:32:08.400 --> 00:32:12.160
Yeah, no, I agree with you. This is a practical matter.
550
00:32:13.359 --> 00:32:16.880
Septic tang regulation in Florida is probably not the scenario
551
00:32:16.920 --> 00:32:19.440
where that would happen. I wonder if in some of
552
00:32:19.480 --> 00:32:25.480
the cases that arise, like suits against states that are
553
00:32:25.519 --> 00:32:31.839
allowing certain types of wildlife traps, for example, are those
554
00:32:31.880 --> 00:32:34.799
scenarios where states are more likely to say, you know,
555
00:32:35.000 --> 00:32:39.119
if you're not going to let us regulate trapping the
556
00:32:39.119 --> 00:32:40.640
way we want to, we're just going to get out
557
00:32:40.640 --> 00:32:42.039
of the business altogether.
558
00:32:41.640 --> 00:32:44.319
And as you can take care of it.
559
00:32:44.799 --> 00:32:48.160
Whether that's a more realistic scenario, as Idaho at some
560
00:32:48.160 --> 00:32:50.440
point could be willing to say, you know, if you
561
00:32:50.480 --> 00:32:54.079
don't let us collect these little fees, or we're not
562
00:32:54.079 --> 00:32:56.839
going to be allowed to collect fees for permitting trapping anyway,
563
00:32:57.559 --> 00:32:59.119
we'll just get out of it all together.
564
00:32:59.160 --> 00:33:00.680
And permits are a lot required.
565
00:33:01.279 --> 00:33:01.680
I want to.
566
00:33:01.640 --> 00:33:03.920
Answer that specifically because, at least in the instance of
567
00:33:03.960 --> 00:33:07.759
wildlife control and wildlife services, as you know, the federal
568
00:33:07.799 --> 00:33:10.240
government and the state government have a century long, over
569
00:33:10.319 --> 00:33:12.000
century long program where they've.
570
00:33:11.759 --> 00:33:14.519
Been killing millions of animals.
571
00:33:14.119 --> 00:33:17.839
Every year, coyotes, badgers, raccoons.
572
00:33:17.200 --> 00:33:20.799
You name it, and so hard.
573
00:33:20.519 --> 00:33:24.680
To imagine the states stopping doing that. And in any event,
574
00:33:24.720 --> 00:33:27.279
at some point, if you're going to kill a couple
575
00:33:27.359 --> 00:33:30.400
hundred thousand coyotes or whatever you're killing, you're going to
576
00:33:30.480 --> 00:33:33.920
need some authorization by a governmental agency to do that.
577
00:33:33.960 --> 00:33:36.119
There not only there's any way for you to avoid
578
00:33:36.160 --> 00:33:38.720
that when you're killing that level is that type of
579
00:33:38.799 --> 00:33:41.920
wildlife carnage. So I don't I guess I don't accept
580
00:33:42.000 --> 00:33:46.559
that hypothesis because I just don't think it's realistic or John.
581
00:33:46.640 --> 00:33:49.079
I don't know if you have thoughts on that, But
582
00:33:49.119 --> 00:33:52.200
also I'm curious. You know, you mentioned in your comments's
583
00:33:52.240 --> 00:33:56.000
initial matter that that the antecommody and principle applies to
584
00:33:56.279 --> 00:33:59.920
regulating states as such, and I was going to ask
585
00:34:00.039 --> 00:34:03.240
you to unpack that a little bit, because yeah, state
586
00:34:03.319 --> 00:34:08.079
may regulate water quality by requiring permits for septic systems,
587
00:34:08.480 --> 00:34:12.760
but the state or local governments may actually operate suit
588
00:34:12.840 --> 00:34:17.559
treatment facilities that are themselves emitting. They may manage lands
589
00:34:17.760 --> 00:34:22.239
that you know have listed species on them or that
590
00:34:22.760 --> 00:34:26.400
you know contain species habitat. As part of land management,
591
00:34:26.480 --> 00:34:30.199
they might, especially in the West, perhaps engage in herd
592
00:34:30.280 --> 00:34:34.079
management for particular species. Folks that really know the Major
593
00:34:34.159 --> 00:34:37.840
Species Act might well remember the Plea litigation where the
594
00:34:37.920 --> 00:34:41.719
concern was the State of Hawaii on Hawaii state lands
595
00:34:42.880 --> 00:34:49.840
maintaining a population of if I recall correctly, feral sheep
596
00:34:49.880 --> 00:34:56.960
and goats that fed on plants that were Mamani saplings
597
00:34:57.000 --> 00:34:59.559
that that the Plea levard relied upon.
598
00:35:01.800 --> 00:35:03.679
To what extent do your arguments.
599
00:35:03.239 --> 00:35:08.920
Apply to these contexts where states are doing things that
600
00:35:10.440 --> 00:35:12.639
or films are doing things that state and local governments
601
00:35:12.719 --> 00:35:18.039
often do, but that aren't you know, pure regulating of
602
00:35:18.119 --> 00:35:23.679
private conducts. You know, is that the line or how
603
00:35:23.679 --> 00:35:27.079
do we understand where this where the states as such
604
00:35:27.960 --> 00:35:29.480
concept is doing the work.
605
00:35:30.239 --> 00:35:33.519
Yeah, so I think that's a great question that that
606
00:35:33.719 --> 00:35:36.760
I think helps unpack this that if the Congress is
607
00:35:36.800 --> 00:35:41.440
regulating states in the same way that it regulates private parties.
608
00:35:41.440 --> 00:35:43.880
And there is no commentering problem because you're not if
609
00:35:43.920 --> 00:35:47.519
Congress isn't essentially trying to co opt state's sovereign authority,
610
00:35:47.519 --> 00:35:51.679
they are not acting as sovereigns when they you know, operate,
611
00:35:52.639 --> 00:35:55.639
you know, manage land, manage herds, do all these things
612
00:35:55.639 --> 00:35:58.360
that private actors do every day. And so if I
613
00:35:58.400 --> 00:36:02.519
read the anti commandeering cases, there is no problem there,
614
00:36:02.679 --> 00:36:04.400
at least as far as the Constitution goes. There may
615
00:36:04.440 --> 00:36:08.280
be some unique ESA issues where if say, you know,
616
00:36:08.320 --> 00:36:10.840
there was one case a couple of years ago where
617
00:36:11.000 --> 00:36:14.119
the State of New York owned land on a beach
618
00:36:14.679 --> 00:36:17.880
and someone tried to hold it responsible for the effects
619
00:36:17.880 --> 00:36:19.880
of feral cats on a danger been speach where the
620
00:36:19.880 --> 00:36:22.440
States I wasn't doing anything. It just happened to own
621
00:36:22.480 --> 00:36:24.800
the land where this was happening. And there I think
622
00:36:24.840 --> 00:36:29.199
there is a decent essay question of whether the prohibition
623
00:36:29.320 --> 00:36:33.840
against causing harm implies an injunction to prohibit harm that
624
00:36:33.880 --> 00:36:36.800
you weren't yourself causing. So there could be some interesting
625
00:36:36.840 --> 00:36:39.719
issues in the states as landowners and land managers, but
626
00:36:39.760 --> 00:36:42.000
generally I don't think they will be commandeering, and the
627
00:36:42.039 --> 00:36:44.519
two other brief points I want to touch on from
628
00:36:44.599 --> 00:36:47.880
Professor Snap's comments. So, I think one area where you
629
00:36:47.920 --> 00:36:51.239
could see this concern play out of states choosing not
630
00:36:51.280 --> 00:36:55.079
to regulate to avoid this problem is wetlands. Post sacket
631
00:36:55.440 --> 00:36:59.159
most responsibly for regulating wetlandses fall into the states, and
632
00:36:59.199 --> 00:37:03.079
the state approach is very tremendously Wells also tend to
633
00:37:03.079 --> 00:37:05.800
be habitat for endangered thread species, a lot of them.
634
00:37:06.320 --> 00:37:08.480
I can absolutely see a state saying, well, if our
635
00:37:08.559 --> 00:37:13.679
choice is regulate to an extreme degree to fully satisfy
636
00:37:13.679 --> 00:37:15.840
the purposes of the essay, or stay out of the
637
00:37:15.840 --> 00:37:17.679
business of regulating these kinds of wet ones in the
638
00:37:17.679 --> 00:37:20.599
first place, states would choose the ladder. In fact, currently
639
00:37:20.679 --> 00:37:23.079
a lot of states are already choosing the ladder without
640
00:37:23.119 --> 00:37:25.800
that that threat hanging over them. And then I also
641
00:37:25.840 --> 00:37:29.719
wanted to respond to Professor Snape's sort of flexibility argument
642
00:37:29.719 --> 00:37:34.280
that the commandeering idea only applies when Congress says states
643
00:37:34.360 --> 00:37:39.119
do this thing specifically, as opposed to states implement this policy,
644
00:37:39.440 --> 00:37:42.119
but you may have some choices about how to do that.
645
00:37:43.159 --> 00:37:46.159
I think this is totally irrelevant to the anti commandeering
646
00:37:46.719 --> 00:37:48.920
or not not a valid way out of the anti
647
00:37:49.280 --> 00:37:52.559
commanding problem. If you imagine if you took any existing
648
00:37:52.559 --> 00:37:56.639
commandeering cases and tweak them slightly so that Congress set
649
00:37:56.760 --> 00:38:00.639
up a federal permitting regime for state policy, states could
650
00:38:00.679 --> 00:38:04.280
submit their proposed policies and get federal approval of them.
651
00:38:04.880 --> 00:38:06.800
You still have all of the same problems you have
652
00:38:07.039 --> 00:38:09.519
in Congress just dictating it in the first place. And
653
00:38:09.559 --> 00:38:13.000
that's actually what we have here. I think Professor Dave
654
00:38:13.079 --> 00:38:16.320
was a little wrong to suggest that Florida itself has
655
00:38:16.400 --> 00:38:19.119
lots of flexibility here. It has none. It has the
656
00:38:19.159 --> 00:38:22.039
opportunity to potentially ask the Fish and Wildlife Service for
657
00:38:22.199 --> 00:38:26.480
permission to do something else, but aside from getting out
658
00:38:26.480 --> 00:38:29.840
of the business of regulating this area entirely, it has
659
00:38:29.880 --> 00:38:35.039
no options to get a VSA liability. The entire discretion
660
00:38:35.280 --> 00:38:36.199
is at the federal level.
661
00:38:38.119 --> 00:38:41.079
So a bill one of it is there really flexibility.
662
00:38:41.119 --> 00:38:43.800
And just to sharpen that a little bit, I seem
663
00:38:43.800 --> 00:38:45.960
to recall in New York versus the United States, Justice
664
00:38:46.000 --> 00:38:50.559
O'Connor saying that giving the state a choice of things
665
00:38:51.079 --> 00:38:55.400
that the federal government could not simply mandate doesn't escape
666
00:38:55.440 --> 00:38:58.159
the commandeering problem. Right that if the federal government can't
667
00:38:58.199 --> 00:39:02.639
just simply mandate A or staying to the state do
668
00:39:02.800 --> 00:39:05.880
A or B doesn't solve the problem.
669
00:39:07.239 --> 00:39:09.679
Yeah, and I think what we have here is something
670
00:39:10.000 --> 00:39:12.840
far more complex than that. I agree that that's what
671
00:39:13.039 --> 00:39:16.000
was said in the New York case, but look at
672
00:39:16.000 --> 00:39:18.320
the case, the Reno case in the Supreme Court that
673
00:39:18.440 --> 00:39:22.679
was issued a few years later. There, the Supreme Court
674
00:39:22.960 --> 00:39:27.079
actually distinguished the New York case and the court upheld
675
00:39:27.639 --> 00:39:31.199
the Congress's Drivers Privacy Protection Act of nineteen ninety four,
676
00:39:31.239 --> 00:39:35.599
which required states to obtain individual's consent before selling their
677
00:39:35.679 --> 00:39:40.119
data the private entities. So there the state had to
678
00:39:40.599 --> 00:39:43.840
playpool to comply with the federal statute, but had a
679
00:39:43.840 --> 00:39:46.400
lot of different ways in which it could do that.
680
00:39:46.920 --> 00:39:48.679
And I don't think it's an option A or an
681
00:39:48.679 --> 00:39:49.159
option B.
682
00:39:49.280 --> 00:39:51.719
In fact, if we know anything about endangerous three seis
683
00:39:51.760 --> 00:39:54.039
protection Jonathan Adler, because of you and I have been
684
00:39:54.079 --> 00:39:56.960
doing this a long time, is that very frequently the
685
00:39:57.039 --> 00:40:02.159
solutions to a species conservation issue are what is a
686
00:40:02.199 --> 00:40:05.480
solution that no side had thought of at the particular time.
687
00:40:05.519 --> 00:40:08.440
You know, all sorts of creative solutions arise over time.
688
00:40:08.480 --> 00:40:13.000
And so I think with manates and water equality, and
689
00:40:13.199 --> 00:40:18.440
growth levels in Florida, and coastal protections and boat management
690
00:40:18.480 --> 00:40:21.039
in terms of speeds and things like that. There are
691
00:40:21.119 --> 00:40:24.119
a lot of different levers that the state and local
692
00:40:24.159 --> 00:40:27.280
governments have to make sure that the manatee doesn't slip
693
00:40:27.280 --> 00:40:30.440
into extinction. It just so happened that at this point,
694
00:40:31.159 --> 00:40:34.239
at this point in litigation, the septic tech, the temporary
695
00:40:34.400 --> 00:40:37.760
moratory on septic tanks, seem to make the most sense.
696
00:40:39.039 --> 00:40:42.760
You know, I teach property law, and this is not
697
00:40:42.880 --> 00:40:46.039
a perfect analogy, but I teach the Mount Laurel cases,
698
00:40:46.079 --> 00:40:49.599
which are in most propery law textbooks. And for those
699
00:40:49.639 --> 00:40:52.400
who don't remember the Mount Laurel cases, that's where the
700
00:40:52.440 --> 00:40:56.920
New Jersey Supreme Court said that every locality in New
701
00:40:57.000 --> 00:41:00.320
Jersey needed to have some form of inclusionary zoning. And
702
00:41:00.360 --> 00:41:03.400
the reason I'm bringing that case up with there were
703
00:41:03.480 --> 00:41:05.119
several Supreme Court cases.
704
00:41:04.840 --> 00:41:07.840
In Mount Laurel, and each time they.
705
00:41:07.679 --> 00:41:12.039
Didn't disagree that there was a sort of discriminatory zoning
706
00:41:12.079 --> 00:41:15.039
going on, but they could not agree on the remedy.
707
00:41:15.760 --> 00:41:19.039
Remedies are hard sometimes, and I'm not at all convinced
708
00:41:19.039 --> 00:41:21.800
that the District court here got it right with remedy.
709
00:41:21.840 --> 00:41:25.079
I actually think the Eleventh Circuit at the very least
710
00:41:25.559 --> 00:41:27.400
likely is going to play.
711
00:41:27.119 --> 00:41:28.440
With that remedy.
712
00:41:28.480 --> 00:41:30.639
I mean, I think that's very much an issue, but
713
00:41:30.679 --> 00:41:34.960
that's an Endangered Species Act implementation issue, because.
714
00:41:34.800 --> 00:41:38.719
Nowhere did the states did the statute or Congress.
715
00:41:38.320 --> 00:41:42.559
Say forever and ever state this is how you must
716
00:41:42.599 --> 00:41:45.679
behave all. It's all the agency said here is we're
717
00:41:45.719 --> 00:41:48.440
taking a time out. We need to figure this out,
718
00:41:48.920 --> 00:41:51.199
and until we come up with a better solution, we're
719
00:41:51.239 --> 00:41:53.719
not going to improve more septic tanks until we have
720
00:41:53.800 --> 00:41:54.719
a game plan on how.
721
00:41:54.599 --> 00:41:56.519
To move forward. That's not option A or B.
722
00:41:56.679 --> 00:41:59.360
That's an infinite number of options that the state has
723
00:41:59.679 --> 00:42:02.239
to move forward.
724
00:42:02.559 --> 00:42:05.000
So one version I have for both of you is.
725
00:42:07.559 --> 00:42:09.880
Looking at the najored species that it's itself.
726
00:42:10.280 --> 00:42:13.599
I'm wondering should we make much of a distinction in
727
00:42:13.639 --> 00:42:17.440
this discussion between what Section nine does and what Section
728
00:42:18.159 --> 00:42:22.320
seven does. Section seven, which applies only to the federal government,
729
00:42:22.360 --> 00:42:25.440
and I think was the base or by going to
730
00:42:25.480 --> 00:42:29.079
the federal government, says that not only is the federal
731
00:42:29.119 --> 00:42:32.199
government is it not allowed to take in a dangerous species,
732
00:42:32.559 --> 00:42:38.239
but it's not allowed to fund, authorize, or carry out
733
00:42:38.639 --> 00:42:44.760
activities that are going to jeopardize endangered species or result
734
00:42:44.800 --> 00:42:47.920
in the loss of a listed species critical habitat. Does
735
00:42:47.920 --> 00:42:50.400
the fact that we have that language as applied to
736
00:42:50.440 --> 00:42:55.719
the federal government and we don't have language prohibiting authorizing,
737
00:42:55.840 --> 00:42:59.239
funding or carrying out actions by state and local governments.
738
00:42:58.960 --> 00:43:01.679
Or for that matter, private alaraties mean that we.
739
00:43:01.679 --> 00:43:07.119
Shouldn't interpret Section nine to extend to that. And if
740
00:43:07.119 --> 00:43:12.599
we're unsure, should the specter of commandeering concerns put it
741
00:43:12.679 --> 00:43:17.280
from on the scales towards interpreting the Act in that direction.
742
00:43:17.719 --> 00:43:19.679
Let me answer that first, if you don't mind real quickly,
743
00:43:19.719 --> 00:43:22.199
and I'll let Jonathan get as long a rebuttal as
744
00:43:22.199 --> 00:43:27.360
he wants as you recall, Jonathan, Professor Adler. For many years,
745
00:43:27.559 --> 00:43:30.320
up until what like twenty eleven or twenty twelve, when
746
00:43:30.360 --> 00:43:34.760
the Ninth and tenth Circuit resolved this, it was not
747
00:43:34.840 --> 00:43:38.239
at all clear that when you brought a Section seven
748
00:43:38.280 --> 00:43:41.800
consultation claim as a plaintiff, that you needed to prove
749
00:43:42.079 --> 00:43:45.679
that there had been a take. And now if there's
750
00:43:45.719 --> 00:43:48.199
going to be an incidental take permit issued through the
751
00:43:48.239 --> 00:43:52.639
Section seven process, you must the agency must prove a take,
752
00:43:52.800 --> 00:43:54.960
just like it would in the Section nine process, So
753
00:43:55.119 --> 00:43:59.480
I think to many to that realities. To some extent,
754
00:43:59.519 --> 00:44:02.159
I think I'm not sure what the right verb is,
755
00:44:02.199 --> 00:44:05.679
but it sort of tempers your question because at any level,
756
00:44:06.199 --> 00:44:08.559
to have any governmental action.
757
00:44:08.559 --> 00:44:11.079
On species, you need to be able to prove a take.
758
00:44:11.119 --> 00:44:13.920
And the only difference between Section seven as it relates
759
00:44:13.960 --> 00:44:17.840
to the federal government and Section nine, which applies to
760
00:44:17.880 --> 00:44:22.519
everyone else and not not just the federal government, is
761
00:44:22.559 --> 00:44:25.239
that with Section seven, when it does involve the federal government,
762
00:44:25.280 --> 00:44:29.480
you do get that those added consultation provisions, the biological assessment,
763
00:44:29.519 --> 00:44:33.880
the biological opinion, the communication between the agencies. That doesn't
764
00:44:33.960 --> 00:44:36.000
need to happen with the state agency. But the state
765
00:44:36.039 --> 00:44:40.119
agency still, either through the Section six cooperative agreement process
766
00:44:40.599 --> 00:44:44.000
or through here the Section nine Section ten process, still
767
00:44:44.079 --> 00:44:48.159
has to be alleged that it's violating law and taking
768
00:44:48.159 --> 00:44:52.679
the species. So if that, I think that answers your question.
769
00:44:52.719 --> 00:44:56.559
But there has to be a proven take for a
770
00:44:56.599 --> 00:45:00.760
state government to be on the hook. Otherwise it's very
771
00:45:00.760 --> 00:45:02.800
difficult for a private plan step to prevail these day.
772
00:45:02.800 --> 00:45:03.639
It's very difficult.
773
00:45:05.960 --> 00:45:08.159
I think that answer dodges the point a little bit.
774
00:45:08.199 --> 00:45:10.679
Maybe I should have stressed at the beginning. My argument
775
00:45:10.760 --> 00:45:13.119
is not that the ESA is unconstitutional under the anti
776
00:45:13.119 --> 00:45:16.679
commandeering doctor in our brief firse brief we offered a
777
00:45:16.679 --> 00:45:19.960
constitutional avoidance issue is that the section nine simply doesn't
778
00:45:19.960 --> 00:45:22.960
reach state's exercise of regulatory authority. In the first place,
779
00:45:23.280 --> 00:45:26.360
there's something explicit that says that says that it does.
780
00:45:26.440 --> 00:45:30.239
This is purely an interpretive gloss that a few environmental
781
00:45:30.239 --> 00:45:33.480
nonprofits have tried to impose through litigation, a few courts
782
00:45:33.480 --> 00:45:35.840
have gone along with and I think to that point,
783
00:45:35.880 --> 00:45:39.599
Section seven is really powerful because it is an explicit
784
00:45:39.639 --> 00:45:42.679
control of how federal government, the federal government, federal agencies
785
00:45:42.719 --> 00:45:46.920
exercise their regulatory authority. If the take prohibition reached that
786
00:45:47.039 --> 00:45:48.960
through the reference to any person which applies to the
787
00:45:49.039 --> 00:45:51.559
federal government the same way that does the states, section
788
00:45:51.639 --> 00:45:55.880
seven is unnecessary, It is redundant. The only reason why
789
00:45:55.880 --> 00:45:58.760
you need that is because the general take probition doesn't
790
00:45:58.880 --> 00:46:01.440
reach the exercise of regulatory authority. Needs to need a
791
00:46:01.519 --> 00:46:05.679
separate section for that. And then it's notable Section seven
792
00:46:05.719 --> 00:46:08.840
doesn't apply to the states. Section six, the Federalism Provision,
793
00:46:08.920 --> 00:46:12.920
which does apply the States, is wildly different from Section seven.
794
00:46:13.360 --> 00:46:16.920
It largely imposes obligations on the federal government, not the states,
795
00:46:16.920 --> 00:46:19.039
So it requires the federal government to operate to the
796
00:46:19.039 --> 00:46:22.920
maximus and practical with states. It gives states that design
797
00:46:23.000 --> 00:46:27.000
their own programs to conserve species a unique opportunity to
798
00:46:27.000 --> 00:46:31.199
decide what federal policy should be. So federal provisions on
799
00:46:31.280 --> 00:46:35.119
take don't apply to states in states that take certain
800
00:46:35.159 --> 00:46:38.800
steps under Section six, and none of those provisions work
801
00:46:39.320 --> 00:46:41.320
if you can comment, hear the states under section ten,
802
00:46:41.320 --> 00:46:43.400
because they wouldn't have the opportunity in the first place
803
00:46:44.119 --> 00:46:47.679
to recover species in ways that don't map on to
804
00:46:48.079 --> 00:46:51.079
Section tens take provision. Our section nine is take provision.
805
00:46:51.679 --> 00:46:53.159
But that's not how Section six works.
806
00:46:53.159 --> 00:46:56.880
So Section six, the federal government doesn't have to agree
807
00:46:56.880 --> 00:47:00.320
with those cooperative agreements. They have a threshold to which
808
00:47:00.360 --> 00:47:02.800
they'll sign a cooperative agreement. And the only thing Section
809
00:47:02.880 --> 00:47:06.000
seven does is it just simply holds federal agencies to
810
00:47:06.039 --> 00:47:10.360
a slightly higher standard in terms of adverse modification of
811
00:47:10.440 --> 00:47:12.119
critical habitat and or jeopardy.
812
00:47:12.480 --> 00:47:14.920
And those provisions do not apply to the state government.
813
00:47:15.599 --> 00:47:18.039
I agree if those applied to the state government, if
814
00:47:18.039 --> 00:47:20.360
there was a Section seven that applied to the state government.
815
00:47:20.480 --> 00:47:22.719
That could perhaps be commandeering.
816
00:47:23.679 --> 00:47:26.119
But here where the government, the state government has violated
817
00:47:26.159 --> 00:47:28.239
the law and is being given a menu of options
818
00:47:28.239 --> 00:47:30.519
to comply with it, that's not commandeering.
819
00:47:31.280 --> 00:47:32.760
I mean, we just keep repeating ourselves.
820
00:47:32.800 --> 00:47:35.760
But like these cases are not at all like the
821
00:47:35.840 --> 00:47:39.559
Murphy and eleven circuit cases where the state government had
822
00:47:39.679 --> 00:47:42.760
no choice on how to behave and the Supreme Court
823
00:47:42.840 --> 00:47:45.480
intervened and said, no, you can't do that. Here, the
824
00:47:45.519 --> 00:47:48.440
state government's got lots of options. We even been talking
825
00:47:48.440 --> 00:47:50.639
about them over the last hour. In fact, we've been
826
00:47:50.679 --> 00:47:52.559
talking about them. Well, maybe they'll have less options now
827
00:47:52.559 --> 00:47:54.840
and they won't want to be cooperative and da da da,
828
00:47:54.920 --> 00:47:57.199
da da da, all of which may be true. But
829
00:47:57.320 --> 00:47:59.400
that indicates that the state has a lot of options
830
00:47:59.480 --> 00:48:02.719
right now. Whether they politically choose to implement them, I
831
00:48:02.760 --> 00:48:05.360
can't speak to that, but as a matter of practicality,
832
00:48:05.760 --> 00:48:06.840
everything is on the table.
833
00:48:08.760 --> 00:48:10.760
So I put to remind folks that are that are
834
00:48:10.800 --> 00:48:15.400
on if you have additional questions for our panelists, put.
835
00:48:15.159 --> 00:48:16.920
Them in the Q and A box. I still have
836
00:48:16.960 --> 00:48:17.760
lots of questions.
837
00:48:18.719 --> 00:48:23.840
And so as we know, the the Trump administration has
838
00:48:23.920 --> 00:48:28.960
proposed rescinding the harm definition And as I understand, the
839
00:48:29.000 --> 00:48:34.280
logic behind the proposal is that the only probition really
840
00:48:34.360 --> 00:48:36.320
is that which is in the text of the meanor
841
00:48:36.400 --> 00:48:39.440
species that itself. And I think it's understood that that
842
00:48:39.480 --> 00:48:43.760
the Trump administration's position is that the text of the
843
00:48:43.800 --> 00:48:50.039
act itself should produce an outcome consistent with Justice Scully
844
00:48:50.159 --> 00:48:52.079
is dissent in the sweet Home case.
845
00:48:53.519 --> 00:48:57.239
Uh So, uh if.
846
00:48:57.599 --> 00:49:03.440
The harm definition the current harm regulation is rescinded, does
847
00:49:03.480 --> 00:49:05.519
that make this question go away? That is to say,
848
00:49:05.800 --> 00:49:08.519
does if the term of administration is able to shrink
849
00:49:09.360 --> 00:49:14.119
what is understood is constituting harm under the Native Species Act?
850
00:49:15.400 --> 00:49:18.400
Does this kind of become a moot exercise in terms
851
00:49:18.440 --> 00:49:21.400
of worrying about commandeering because none of these activities would
852
00:49:21.440 --> 00:49:25.599
constitute takes a listed species, or or would state and
853
00:49:25.679 --> 00:49:28.679
local governments still have to be worried about vicarious liability
854
00:49:29.000 --> 00:49:30.760
in some of these sorts of circumstances.
855
00:49:31.079 --> 00:49:33.039
Now, I know you want to re first on that.
856
00:49:33.159 --> 00:49:35.679
Sure, I'm happy to take that first in the answer
857
00:49:35.760 --> 00:49:38.119
is it depends and it would take some time. So
858
00:49:38.159 --> 00:49:41.119
this came up in the oral argument where the court
859
00:49:41.239 --> 00:49:43.519
was concerned, are we going to issue an opinion in
860
00:49:43.599 --> 00:49:45.559
the next day, the rules are going to change and
861
00:49:46.360 --> 00:49:50.239
our opinion won't have any effect. And the attorneys couldn't
862
00:49:50.280 --> 00:49:52.679
and so didn't offer any prediction on when that that
863
00:49:52.800 --> 00:49:55.440
change might finally be finalized, since it's you totally up
864
00:49:55.480 --> 00:49:58.559
to the federal government. But what the plaintiff said is
865
00:49:58.559 --> 00:50:01.119
that if the harm to definitions were scinded so that
866
00:50:01.199 --> 00:50:04.719
there is no explicit regulation extending the tape prohibitionion to
867
00:50:05.639 --> 00:50:09.719
habitat modification that injures wildlife, that they would still argue
868
00:50:09.920 --> 00:50:13.400
that it is compelled by the statutes texts itself. So
869
00:50:13.519 --> 00:50:15.440
they suggested that the case would have to be remanded
870
00:50:15.480 --> 00:50:20.039
for for the litigation. But this unless that argument was rejected,
871
00:50:20.119 --> 00:50:25.960
this commandeering constitutional avoidance problem wouldn't go away. The plaintive
872
00:50:26.000 --> 00:50:28.440
at least felt confident they could make the case based
873
00:50:28.480 --> 00:50:32.480
on the sweet Home decision, which is a Chevron case,
874
00:50:32.559 --> 00:50:35.159
But there's also a lot of language in there suggesting that,
875
00:50:36.079 --> 00:50:38.440
at least for purposes of the five of the justice
876
00:50:38.440 --> 00:50:42.880
from that court, that maybe the text is pretty strong here.
877
00:50:44.559 --> 00:50:47.440
Bill, your thoughts, I agree with Jonathan on that.
878
00:50:48.440 --> 00:50:50.440
I mean, the issue of the habitsat harm was not
879
00:50:50.559 --> 00:50:54.079
briefed in the case that was just argued at this
880
00:50:54.199 --> 00:50:56.119
bare warrior case that was argued at the Eleventh Circuit,
881
00:50:56.159 --> 00:50:57.960
so at the very least it would have to be remanded.
882
00:51:00.119 --> 00:51:04.400
I think there is very strong textual support, and I
883
00:51:04.480 --> 00:51:08.639
think Low or Bright would support the harm. But we'll see,
884
00:51:08.960 --> 00:51:10.719
you know, we'll see where that goes, where the Trump
885
00:51:10.719 --> 00:51:14.000
administration goes on, you know, what actually happens in that litigation.
886
00:51:14.119 --> 00:51:17.280
But at this point, I don't think that proposal, which
887
00:51:17.360 --> 00:51:22.760
is only just that, would have any distinct impact on
888
00:51:22.880 --> 00:51:26.280
this case. It's it's it could in a few years perhaps,
889
00:51:26.360 --> 00:51:28.239
but not now and not for at least the next year.
890
00:51:28.760 --> 00:51:30.360
Well, the one thing I would note is that yes,
891
00:51:30.440 --> 00:51:33.360
it's at the propos stage, but the final is at
892
00:51:33.519 --> 00:51:35.920
the onb for final reviews, so this may happen in
893
00:51:35.960 --> 00:51:38.400
the next few weeks. Like this isn't necessarily something really
894
00:51:38.440 --> 00:51:40.119
far into the future. But I also think there's a
895
00:51:40.199 --> 00:51:45.519
practical problem. If the state has to get federal approval
896
00:51:45.559 --> 00:51:48.280
of whatever its policy is going to be, and the
897
00:51:48.360 --> 00:51:50.679
federal government is saying we won't issue a permit because
898
00:51:50.719 --> 00:51:53.199
we don't think the take permission applies in the first place,
899
00:51:53.679 --> 00:51:56.719
the remedy of the court order becomes much more difficult,
900
00:51:56.760 --> 00:51:58.239
Like the state at that point kind of has no
901
00:51:58.400 --> 00:52:01.400
choice because it has no option at the federal level.
902
00:52:01.400 --> 00:52:03.880
But the Court is said, you have to get their permission.
903
00:52:03.920 --> 00:52:05.840
And that was briefed in the case that that is
904
00:52:05.920 --> 00:52:09.000
one of the unusual puzzles about the way in which
905
00:52:09.079 --> 00:52:13.880
the Court subjected state policy to federal approval, and that
906
00:52:14.079 --> 00:52:15.159
was and that was argued.
907
00:52:15.000 --> 00:52:15.920
At the Eleventh Circuit.
908
00:52:15.960 --> 00:52:18.039
And we both have said, we don't want to predict
909
00:52:18.039 --> 00:52:22.239
what the Eleventh Circuit did, but hard to think that
910
00:52:22.360 --> 00:52:25.440
the Eleventh Circuit won't tinker with that remedy on some level.
911
00:52:25.599 --> 00:52:26.400
But who knows.
912
00:52:27.719 --> 00:52:30.199
So we're getting near to the top of the hour.
913
00:52:30.280 --> 00:52:32.159
So I did have a kind of a final question
914
00:52:32.960 --> 00:52:35.719
for each of you, and that is, if we look
915
00:52:35.719 --> 00:52:38.800
at the Native Species Act, you know, it at one
916
00:52:38.920 --> 00:52:42.000
level does embody a cooperative federalism model in that it
917
00:52:42.079 --> 00:52:45.840
does anticipate state action, But it's a very different cooperative
918
00:52:45.880 --> 00:52:50.079
federalism model than we see, say in the pollution control statutes.
919
00:52:51.760 --> 00:52:56.000
And you know, if the eleven Circuit, or perhaps if
920
00:52:56.000 --> 00:52:58.480
this is one of the Supreme Court and Supreme Court
921
00:52:58.480 --> 00:53:02.880
will decide that this sort of thing commandeering, I'm curious
922
00:53:02.960 --> 00:53:06.519
whether each of you think the federal agencies in a
923
00:53:06.559 --> 00:53:10.320
Fisheral Model Life Service, National MA Reninfishery Service, have the
924
00:53:10.480 --> 00:53:16.360
ability within the existing Endangered Species Act to try and
925
00:53:16.519 --> 00:53:22.039
create incentives or inducements for state cooperation like we see
926
00:53:22.039 --> 00:53:24.519
in the pollution control statutes, or whether or not this
927
00:53:24.679 --> 00:53:26.320
is something that would have to be fixed by Congress
928
00:53:26.360 --> 00:53:29.039
that has to say, if, if, if the court decides
929
00:53:29.119 --> 00:53:35.360
that that these cases like Bear Warriors, put the courts
930
00:53:35.400 --> 00:53:38.760
in position of common during state and local governments. Is
931
00:53:39.039 --> 00:53:41.599
there something that that Fisher Model Life Service can do
932
00:53:41.719 --> 00:53:45.199
with with its existing legal authority to try and induce
933
00:53:45.280 --> 00:53:49.760
greater state cooperation to deal with the many, many little
934
00:53:49.800 --> 00:53:55.159
harms that that in the aggregate may imperil species survival.
935
00:53:55.760 --> 00:53:58.239
Or is this something that's just is this just yet
936
00:53:58.239 --> 00:53:59.760
another question that's gonna.
937
00:54:00.320 --> 00:54:02.599
Have to sit in Congress's lap and lessen until such
938
00:54:02.679 --> 00:54:05.199
time as Congress decides it wants to revisit any of
939
00:54:05.239 --> 00:54:05.840
these statutes.
940
00:54:05.880 --> 00:54:09.599
And whichever one of you wants to grab that one first.
941
00:54:10.360 --> 00:54:12.320
I'm happy to take it first. I think not only
942
00:54:12.599 --> 00:54:15.000
would the fish Line Service have other tools, it's already
943
00:54:15.119 --> 00:54:19.360
using them. So one of the more recent anti commandeering
944
00:54:19.559 --> 00:54:22.679
cases under the ESSA had to do with state water law,
945
00:54:22.719 --> 00:54:26.199
where Texas was sued saying that because it's the regulator
946
00:54:26.440 --> 00:54:30.159
of removing water for river for private use, that it
947
00:54:30.280 --> 00:54:34.079
was responsible for downstream effects. And that's in sharp contrast
948
00:54:34.119 --> 00:54:36.000
with the way the Fish and Wiler Service has implemented
949
00:54:36.039 --> 00:54:39.599
the ESA when it's involved in water disputes. Here in Montana,
950
00:54:40.000 --> 00:54:44.239
not too far from bosmwore I Live Fishline Service worked
951
00:54:44.320 --> 00:54:48.880
with the state to develop a conservation agreement with assurances
952
00:54:49.320 --> 00:54:53.840
where through the state the fish Line Service basically permitted
953
00:54:53.960 --> 00:54:56.360
all of the small harms that you're talking about, where
954
00:54:56.440 --> 00:55:00.239
each individual water user probably doesn't pull out enough water
955
00:55:00.360 --> 00:55:02.719
to effect in that case, the Arctic grailing, but on
956
00:55:02.880 --> 00:55:07.480
net they do, and the state voluntarily softest permit which
957
00:55:07.519 --> 00:55:10.440
would provide a shield to all of the private parties.
958
00:55:10.440 --> 00:55:13.880
And because of that voluntariness, you don't have any commondeering issue.
959
00:55:14.199 --> 00:55:16.480
And there are examples like that across the board. There
960
00:55:16.519 --> 00:55:19.920
are lots of local governments, counties and states that have
961
00:55:20.079 --> 00:55:23.639
been issued ESA permits that they sought for the benefit
962
00:55:23.760 --> 00:55:26.760
of private parties who otherwise it would have been either
963
00:55:26.800 --> 00:55:30.039
really costly for them to get a permit or enforcement
964
00:55:30.079 --> 00:55:32.400
would have been really complicated because of the smallness of
965
00:55:32.440 --> 00:55:34.800
the harms. But the other policy point I would mentioned,
966
00:55:34.800 --> 00:55:36.840
So you're focusing on what your question focused on what
967
00:55:36.920 --> 00:55:39.119
else could the Service do? But I think it's equally
968
00:55:39.119 --> 00:55:42.800
important to ask what else could the states do? Where
969
00:55:42.880 --> 00:55:46.639
you're right that the federalism provision are cooperate. Federalism vision
970
00:55:46.639 --> 00:55:48.440
in the USA are different than the Clean Air Act
971
00:55:48.480 --> 00:55:50.960
and Clean or Houtteract, which limit the states to effectively
972
00:55:51.039 --> 00:55:56.320
issuing federal permits. The ESA provision says that if a
973
00:55:56.360 --> 00:56:00.440
state develops an adequate conservation program for species, the Service
974
00:56:00.800 --> 00:56:04.320
has to issue a proper agreement. It is shells mandatory,
975
00:56:04.960 --> 00:56:07.719
and then federal prohibitions that take only applying in the
976
00:56:07.760 --> 00:56:09.639
state to the extent the state adopts of the zone.
977
00:56:09.679 --> 00:56:12.360
So states really do have this unique opportunity to shape
978
00:56:12.400 --> 00:56:15.320
what federal policy should be, but they can't if they
979
00:56:15.360 --> 00:56:18.519
can be commandeered on the front end. If litigation can
980
00:56:18.639 --> 00:56:21.039
force them to regulate in certain ways, that flexibility is
981
00:56:21.119 --> 00:56:24.320
essentially gone or Bill last.
982
00:56:24.159 --> 00:56:27.559
Words to you, Yeah, well, I finally figured out with
983
00:56:27.679 --> 00:56:30.960
Jonathan Wood's last comment, where maybe the root of our
984
00:56:31.000 --> 00:56:34.320
disagreement lies, which is I mean obviously we disagree on
985
00:56:34.360 --> 00:56:36.239
the law and commandeering, and you know how far the
986
00:56:36.320 --> 00:56:37.199
tenth Amendment should go.
987
00:56:38.159 --> 00:56:42.639
But assumed in his otherwise good.
988
00:56:42.559 --> 00:56:45.039
Recitation is that the Ficial Lilay Service and National Marine
989
00:56:45.079 --> 00:56:48.960
Fishery Service, the two export agencies, are always out there
990
00:56:49.119 --> 00:56:54.000
vigilantly enforcing the Act. That's completely false. If that were true,
991
00:56:54.039 --> 00:56:56.920
there would never be citizen suits. And in fact, ultimately
992
00:56:56.960 --> 00:56:59.119
when you take a step back from the Endangered Species Act,
993
00:56:59.159 --> 00:57:01.159
there's a big bad going on. And I think Congress
994
00:57:01.280 --> 00:57:02.880
knew this was going to be the battle, and we've
995
00:57:02.880 --> 00:57:05.719
been talking about it now for over fifty years, which
996
00:57:05.800 --> 00:57:08.440
is that the Statute on one level says use the
997
00:57:08.519 --> 00:57:13.079
best available science, listing critical habitat, even consultation to a
998
00:57:13.159 --> 00:57:14.599
certain extent, take.
999
00:57:15.079 --> 00:57:16.840
All use the best available science.
1000
00:57:17.480 --> 00:57:20.239
On the same level, though the agencies are subject to
1001
00:57:20.280 --> 00:57:24.519
political pressure, the statute itself allows economic considerations, that the
1002
00:57:24.559 --> 00:57:28.119
critical habitat phase allows other alternatives and options, that the
1003
00:57:28.159 --> 00:57:31.679
consultation phase allows a lot of flexibility to approve a.
1004
00:57:31.719 --> 00:57:32.639
Section send permit.
1005
00:57:33.239 --> 00:57:37.920
And so this battle, this sort of organized battle between
1006
00:57:38.079 --> 00:57:41.079
science and politics, is sort of how the Act is
1007
00:57:41.079 --> 00:57:45.000
supposed to be implemented. In a certain way, and it's
1008
00:57:45.199 --> 00:57:50.679
not commandeering to hold a state agency to a scientific
1009
00:57:50.800 --> 00:57:52.639
standard of species take.
1010
00:57:52.880 --> 00:57:53.840
That's all that's happening here.
1011
00:57:54.119 --> 00:57:58.920
When the agency takes actions that violates that scientific standard,
1012
00:58:00.239 --> 00:58:02.000
gets you out of that, out of at least at
1013
00:58:02.039 --> 00:58:04.639
this point, gets you out of that quandary. That's not commandeering.
1014
00:58:04.719 --> 00:58:08.840
That's enforcing a federal statue to everyone. So that's my
1015
00:58:09.039 --> 00:58:12.760
answer is that species always tend to be on the
1016
00:58:12.800 --> 00:58:15.559
losing end of these battles because money talks and bullshit
1017
00:58:15.679 --> 00:58:18.480
walks a lot of times. And so the fact here
1018
00:58:19.039 --> 00:58:22.000
that a federal judge and a federal agency actually we're
1019
00:58:22.039 --> 00:58:25.320
standing up for the manatee and forcing the state to
1020
00:58:25.480 --> 00:58:27.960
take a harder look at whether what they were doing
1021
00:58:28.119 --> 00:58:31.440
is really working. To me, is a good thing ultimately,
1022
00:58:31.840 --> 00:58:34.360
even though I'm maybe not convinced that the remedy is perfect,
1023
00:58:34.800 --> 00:58:37.800
I like the fact that we're being asked this hard
1024
00:58:37.920 --> 00:58:40.199
question because that's what the Endangered Species ext requests.
1025
00:58:41.000 --> 00:58:42.639
It requires us to ask that question.
1026
00:58:44.400 --> 00:58:46.840
All right, I think that'll be the last word, and Cameron,
1027
00:58:46.960 --> 00:58:47.239
back to you.
1028
00:58:48.320 --> 00:58:49.039
Thank you so much.
1029
00:58:49.360 --> 00:58:52.920
I just wanted to thank both are panelists for sharing
1030
00:58:52.960 --> 00:58:55.800
your expertise and opinions on this important issue, and thank
1031
00:58:55.840 --> 00:58:57.079
you to Professor Adler for.
1032
00:58:57.199 --> 00:58:59.039
Moderating our audience.
1033
00:58:59.159 --> 00:59:02.000
If our audience is interested in learning more about all
1034
00:59:02.199 --> 00:59:07.320
Federal Societies programming, please visit their website at fedsoc dot org.
1035
00:59:07.920 --> 00:59:09.519
And with that, we are adjourned.
1036
00:59:10.159 --> 00:59:13.920
Thanks for listening to FEDSOC Forums, a Federalist Society podcast.
1037
00:59:14.320 --> 00:59:16.800
Be sure to subscribe wherever you get your podcasts so
1038
00:59:16.920 --> 00:59:19.840
you won't miss an episode. To learn more, visit our
1039
00:59:19.880 --> 00:59:21.679
website fedsoc dot org