Courthouse Steps Decision: Seven County Infrastructure Coalition v. Eagle County, Colorado

WEBVTT
1
00:00:02.080 --> 00:00:05.080
Welcome to fedsoc Forums, a podcast of the Federal Society's
2
00:00:05.120 --> 00:00:08.279
practice groups. I'm Ny kas Merrick, Vice President and Director
3
00:00:08.320 --> 00:00:09.039
of Practice.
4
00:00:08.720 --> 00:00:10.039
Groups at the Federal Society.
5
00:00:10.240 --> 00:00:13.800
For exclusive access to live recordings of fedsock Forum programs,
6
00:00:13.919 --> 00:00:17.160
become a Federal Society member today at fedsoc dot org.
7
00:00:18.879 --> 00:00:19.559
Hello and welcome.
8
00:00:19.600 --> 00:00:23.320
It's fedsock Forum webinar call today May thirtieth, twenty twenty five.
9
00:00:23.760 --> 00:00:26.199
We are delighted to host a Courthouse STEP's decision.
10
00:00:25.839 --> 00:00:29.600
Program on seven County Infrastructure Coalition versus Eel County, Colorado,
11
00:00:29.960 --> 00:00:32.719
which is decided yesterday by the court. My name is
12
00:00:32.799 --> 00:00:35.359
Kayla Kleist, and I'm an associate director of Practice Groups
13
00:00:35.399 --> 00:00:36.799
here at the Federalist Society.
14
00:00:37.159 --> 00:00:38.479
I've always please note.
15
00:00:38.320 --> 00:00:40.600
That all expression of opinion are those of the experts
16
00:00:40.600 --> 00:00:43.679
on today's call at the Federalist Society takes no position
17
00:00:43.799 --> 00:00:44.759
on particular.
18
00:00:44.439 --> 00:00:48.000
Legal or public policy issues. I'm needs to time.
19
00:00:48.280 --> 00:00:50.600
We'll keep introductions of our guest day brief, certainly more
20
00:00:50.600 --> 00:00:53.000
brief than the curser desserve, so I highly recommend that
21
00:00:53.000 --> 00:00:55.280
if you're interested, you checked out their oppressives full bios
22
00:00:55.320 --> 00:00:56.600
at fedsoc dot org.
23
00:00:57.359 --> 00:00:58.759
Today we are fortunate job with US.
24
00:00:58.799 --> 00:01:02.240
Mario Loyola your Fellow for Law, Economics, and Technology at
25
00:01:02.240 --> 00:01:06.439
the Heritage Foundation FESS. Loyola formerly served as Associate Director
26
00:01:06.519 --> 00:01:09.680
for Regulatory Reform at the White House Council on Environmental Quality.
27
00:01:10.200 --> 00:01:11.799
In that role, he was one of the principal drafters
28
00:01:11.799 --> 00:01:14.159
of the One Federal Decision policy, which aimed to streamline
29
00:01:14.159 --> 00:01:17.280
the permitting and environmental review of large infrastructure projects.
30
00:01:17.599 --> 00:01:19.680
While at CEQ, he's a member of the US delegation
31
00:01:19.760 --> 00:01:21.200
to the USMCA.
32
00:01:20.719 --> 00:01:23.840
Free Trade negotiations with Mexico and Canada, as well as
33
00:01:23.879 --> 00:01:27.799
the United States Conference on Biodiversity and i See Pessoliola
34
00:01:27.959 --> 00:01:30.200
is a Greek Good contributor at the Wall Street Journal
35
00:01:30.319 --> 00:01:33.239
National Review in the Atlantic, among others. He teaches environmental
36
00:01:33.280 --> 00:01:36.560
administrative law at Florida International University, where he is the
37
00:01:36.560 --> 00:01:39.560
founding director of the Environmental Finance and Risk Management Program
38
00:01:39.719 --> 00:01:43.359
nfiu's Institute of Environment. Also joining us today as our
39
00:01:43.359 --> 00:01:46.959
moderator Today's conversation zas Lapari, who is counselor at Boyden Gray,
40
00:01:47.040 --> 00:01:50.200
the LLC for Joining the Firm Service and advisor to
41
00:01:50.239 --> 00:01:53.200
the Chairman and Commissioner James Danley at the Federal Energy
42
00:01:53.239 --> 00:01:56.319
Regulatory Commission, assisting on critical infrastructure issues under both the
43
00:01:56.319 --> 00:01:59.439
Federal Power Act and National Gath Acts. The party also
44
00:01:59.560 --> 00:02:02.280
formerly served at the Attorney General's Office of Legal Policy,
45
00:02:02.359 --> 00:02:04.719
then the Department of Justice as Senior Counsel and on
46
00:02:04.799 --> 00:02:07.840
policy coordinating committees seeking to advance the implementation of ourgulatory
47
00:02:07.879 --> 00:02:11.360
reforms at protecting the religious liberty and free speech. He's
48
00:02:11.400 --> 00:02:13.639
also held several roles in the Officer of Personal Management's
49
00:02:13.639 --> 00:02:16.479
Office of General Council, including the Deputy General Council, where
50
00:02:16.479 --> 00:02:20.080
he coordinated the review and development of numerous executive orders, regulations,
51
00:02:20.080 --> 00:02:22.439
and other significant policy vehicles.
52
00:02:22.639 --> 00:02:24.159
And I will leave it there well.
53
00:02:24.240 --> 00:02:26.439
Last note throughout the program, if you have any questions,
54
00:02:26.439 --> 00:02:28.479
please do submit those by the question and answer feature
55
00:02:28.759 --> 00:02:30.360
likely find at the Botto Museum screen so the be
56
00:02:30.360 --> 00:02:32.199
access When we get to that portion of today's webinar,
57
00:02:32.639 --> 00:02:34.879
I'll ask that all questions submitted there a pertain to
58
00:02:34.919 --> 00:02:37.800
this discussion and b end of the question mark, but
59
00:02:37.879 --> 00:02:39.639
that the all of the journeys day A mister la Pari,
60
00:02:39.719 --> 00:02:41.759
the floor is yours.
61
00:02:42.680 --> 00:02:43.159
Thank you.
62
00:02:44.840 --> 00:02:49.240
As we get into this neba, as I'm sure most
63
00:02:49.280 --> 00:02:54.039
of our viewers appreciate and has come to be synonymous
64
00:02:54.120 --> 00:03:01.240
with red tape and delay in building developing infrastructure across
65
00:03:01.280 --> 00:03:08.240
the United States. Endless years of environmental review then get
66
00:03:08.240 --> 00:03:13.280
handed on to the jujital brand, where project sponsors project
67
00:03:13.319 --> 00:03:19.000
applicants find themselves at playing roulette as to whether or
68
00:03:19.039 --> 00:03:23.000
not their project will survive. Is a review when it
69
00:03:23.080 --> 00:03:28.560
is rememberable be challenged by a constellation of environmental NGOs.
70
00:03:30.080 --> 00:03:35.039
So yesterday's decision was the first substantive need a decision
71
00:03:35.039 --> 00:03:39.240
out of the Supreme Court in almost twenty years. And
72
00:03:39.680 --> 00:03:42.199
as we will discuss with Mario, it has the potential.
73
00:03:42.719 --> 00:03:45.639
It may have the potential to fundamentally change the need
74
00:03:45.719 --> 00:03:51.919
a landscape, or perhaps not. So we'll discuss how heart
75
00:03:51.960 --> 00:03:56.439
reaching this decision is, what it means for developing infrastructure
76
00:03:56.439 --> 00:03:59.479
in the United States, what it will mean for President
77
00:03:59.479 --> 00:04:01.479
Trump's or dedominant agenda.
78
00:04:01.719 --> 00:04:03.479
And where we'll be going from here.
79
00:04:03.759 --> 00:04:08.280
So to set the stage just a little bit, the
80
00:04:08.520 --> 00:04:12.599
course of decisions that brought this decision to the Supreme
81
00:04:12.639 --> 00:04:16.399
Court really began in twenty seventeen with a decision in
82
00:04:16.439 --> 00:04:20.839
the DC Circuit commonly referred to as Sable Trail. In
83
00:04:20.879 --> 00:04:24.600
that case, FERK had issued a certificate of public covenience
84
00:04:24.600 --> 00:04:28.639
and necessity for a couple of pipelines in Florida that
85
00:04:28.720 --> 00:04:31.680
we're going to be supplying natural gas to natural gas
86
00:04:31.800 --> 00:04:38.560
power plants. The d C circuits reversed and remanded the Commission,
87
00:04:40.759 --> 00:04:45.160
holding that FERK had an obligation adam minimum to quantify
88
00:04:45.560 --> 00:04:50.360
estimate the greenhouse gas emissions that would result when the
89
00:04:50.399 --> 00:04:54.120
gas that those pipelines transport to those power plants is
90
00:04:54.160 --> 00:04:59.040
combusted and then admitted. Over the years since that decision,
91
00:04:59.399 --> 00:05:04.319
the Commission and FIRK has wrestled with the consequences of
92
00:05:04.319 --> 00:05:09.000
that decision and the extent to which that decision directs
93
00:05:09.040 --> 00:05:11.360
and empowers the Commission to serve as a sort of
94
00:05:12.680 --> 00:05:17.079
climate regulator under the Viitenent administration, when the Commission attempted
95
00:05:17.120 --> 00:05:19.800
to on the basis of sable trail and subsequent decisions
96
00:05:20.279 --> 00:05:25.279
impose substance of climate change considerations into its decision making
97
00:05:25.319 --> 00:05:28.040
on whether or not to issue certificates of public convenience
98
00:05:28.120 --> 00:05:33.680
and necessity. While today's decision or yesterday's decision comes from
99
00:05:33.680 --> 00:05:36.959
the Surface Transportation Board, it involves a similar set of
100
00:05:36.959 --> 00:05:39.879
issues or rail line in Utah An eighty eight mile
101
00:05:40.000 --> 00:05:43.839
rail line in Utah was going to transport crude oil
102
00:05:44.600 --> 00:05:47.959
to refineries along the Gulf of Mexico, and the d
103
00:05:48.079 --> 00:05:52.199
C Circuit vacated that decision for failing to consider the
104
00:05:52.199 --> 00:05:56.680
greenhouse gas impact the global warming significance of the induced
105
00:05:56.759 --> 00:05:58.959
oil and gas production, and the U went to Valley
106
00:06:00.519 --> 00:06:05.199
as well as barmental justice considerations and emissions along the
107
00:06:05.240 --> 00:06:09.639
Gulf of Mexico in the refineries to which the crude
108
00:06:09.639 --> 00:06:15.240
oil was ultimately destined. So that set up, Mario, what
109
00:06:15.319 --> 00:06:18.199
did What did the court decide?
110
00:06:18.839 --> 00:06:19.879
Can you give us an overview?
111
00:06:21.519 --> 00:06:25.000
So the main there were two masies for the court's
112
00:06:25.040 --> 00:06:31.600
decision here. The first was that according to Justice Kavanaugh,
113
00:06:31.639 --> 00:06:36.079
who wrote the opinion of the court here and I
114
00:06:36.120 --> 00:06:37.720
say of the court because it was an eight to
115
00:06:38.040 --> 00:06:41.839
it was a unanimous decision eight to zero, with gorstch recusing.
116
00:06:43.120 --> 00:06:48.279
Justice Kavanaugh wrote that the DC Circuit had failed to
117
00:06:49.399 --> 00:06:56.720
offer the deference due to the Surface Transportation Boards, not
118
00:06:56.959 --> 00:07:02.000
just in the things that you would normally expect the
119
00:07:02.160 --> 00:07:08.040
agency to get deference on, but particularly the StB's determination
120
00:07:08.240 --> 00:07:11.560
of what impacts to study, which is a potentially very
121
00:07:11.560 --> 00:07:14.120
big deal. As we can get to here in our discussion,
122
00:07:16.079 --> 00:07:23.959
and the other basis of the court's decision was that
123
00:07:24.399 --> 00:07:27.360
there was no need for the agency to study the
124
00:07:27.399 --> 00:07:32.879
impacts of projects that are removed in time and space
125
00:07:33.680 --> 00:07:39.560
from the project under consideration for the federal action. And
126
00:07:39.600 --> 00:07:46.040
that is also potentially impactful, but you know, opened also
127
00:07:46.120 --> 00:07:48.720
open to questions about how much impact.
128
00:07:48.480 --> 00:07:49.000
It will have.
129
00:07:49.839 --> 00:07:52.879
I'll say that I wrote an amicus brief in this
130
00:07:53.000 --> 00:07:58.079
case with Professor Richard Epstein and Professor James Coleman, and
131
00:07:59.000 --> 00:08:02.839
we pointed out several things that we can get to
132
00:08:02.879 --> 00:08:07.839
here in the discussion about the enforceability of the CEQ
133
00:08:08.040 --> 00:08:12.399
regulation that has a bearing on this case, the limits
134
00:08:12.439 --> 00:08:18.920
that the Administrative Procedure Act itself imposes on what impacts
135
00:08:20.319 --> 00:08:25.240
an agency can be required to study under NIPA. The
136
00:08:25.360 --> 00:08:28.120
Court's decision in this case, as you mentioned, it was
137
00:08:28.160 --> 00:08:33.399
the first consequential NEPA decision, well, the first consequential NEPA
138
00:08:33.399 --> 00:08:35.720
case in twenty years.
139
00:08:36.279 --> 00:08:38.159
Whether or not it will be it will.
140
00:08:38.200 --> 00:08:43.919
Prove to be a consequential NEPA decision depends in large
141
00:08:43.960 --> 00:08:49.200
part on how lower courts interpret this decision and the
142
00:08:49.279 --> 00:08:52.639
language in this decision moving forward. It could turn out
143
00:08:52.720 --> 00:08:55.639
to be a consequential decision, but it might not.
144
00:08:55.559 --> 00:08:57.639
Turn out to be a very consequential decision.
145
00:08:58.120 --> 00:09:03.200
And in that sense, the decision is of a victory,
146
00:09:03.320 --> 00:09:09.840
but not an entirely satisfying victory for those of us
147
00:09:09.879 --> 00:09:14.559
who were you know, filed emic is brief and supportive
148
00:09:14.559 --> 00:09:15.639
petitioner in this case.
149
00:09:18.799 --> 00:09:21.919
Thanks Marion. So, I think.
150
00:09:24.919 --> 00:09:27.600
This case the court came to a unano's decision because
151
00:09:27.600 --> 00:09:30.240
I think it seemed clear to the court that this
152
00:09:30.440 --> 00:09:34.720
rail line, when the Surface Transportation Board is authorizing a
153
00:09:34.799 --> 00:09:41.720
rail line, the effects of uhh, we're finding oil and
154
00:09:41.799 --> 00:09:44.399
gas in the Gulf of Mexico are simply not in
155
00:09:44.440 --> 00:09:47.840
the wheelhouse of what the Surface Transportation Board is supposed
156
00:09:47.879 --> 00:09:52.919
to be doing. It's not the project at hand. Can
157
00:09:52.960 --> 00:09:56.639
you give a little insight on what you think, uh,
158
00:09:57.080 --> 00:10:00.399
courts in the future will do with this project hand
159
00:10:00.480 --> 00:10:07.200
language and the time nearby and time and place language
160
00:10:07.519 --> 00:10:09.799
that's in Justice Kavanaugh's opinion.
161
00:10:10.200 --> 00:10:13.799
Well, let me let me answer the question by starting
162
00:10:14.000 --> 00:10:19.960
with Justice so of my yours concurrence, because Justice sot
163
00:10:19.960 --> 00:10:27.799
of Myer's concurrence focuses on the issue essentially of that
164
00:10:27.879 --> 00:10:29.919
you raise with sable trail.
165
00:10:31.720 --> 00:10:31.840
Uh.
166
00:10:32.399 --> 00:10:38.039
So, let me hang on a second, let me find
167
00:10:38.080 --> 00:10:41.480
the exact because the most important sentence in sort of
168
00:10:41.480 --> 00:10:47.320
my yours uh is a concurrence, is actually in a footnote.
169
00:10:47.360 --> 00:10:48.799
I have no idea why it's in a footnote. It
170
00:10:48.840 --> 00:10:51.799
should be the pull quote of the entire concurrence. But
171
00:10:51.879 --> 00:10:56.279
she basically focused in on the fact that the public
172
00:10:56.399 --> 00:11:00.919
convenience and necessity, which is the stand for granting a
173
00:11:00.960 --> 00:11:05.639
certificate under the Interstate Commerce Act that governs the Surface
174
00:11:05.639 --> 00:11:12.600
Transportation Board's authorization in this case, does not encompass, as
175
00:11:12.639 --> 00:11:17.440
you said, the effects of oil drilling and refining downstream
176
00:11:18.039 --> 00:11:23.360
and does not affect climate impacts because that's not the
177
00:11:23.399 --> 00:11:28.600
purpose of the statute. That's potentially very impactful because, of course,
178
00:11:28.679 --> 00:11:32.080
as you well know sitting at FIRK, the Federal Power
179
00:11:32.120 --> 00:11:36.919
Act and the Natural Gas Act contain similar language about
180
00:11:36.919 --> 00:11:40.720
public convenience and necessity. All these laws date of course
181
00:11:41.480 --> 00:11:44.000
back to the nineteen twenties when this was a favorite
182
00:11:44.000 --> 00:11:50.759
phrase of Congress, empowering these independent commissions. And so now
183
00:11:51.360 --> 00:11:53.919
so now the argument will be for those for those
184
00:11:54.039 --> 00:11:57.120
who want to defend a FERK permit, will be that well,
185
00:11:57.440 --> 00:12:00.320
and for those who say that sable trail has been
186
00:12:00.360 --> 00:12:06.159
in effect reversed by this decision. They will say that convenient,
187
00:12:06.360 --> 00:12:09.960
public convenience and necessity under the Natural Gas Act, which
188
00:12:10.200 --> 00:12:14.440
which is the applicable act for the for firks granting
189
00:12:14.679 --> 00:12:21.759
of authorizations for natural gas pipelines, similarly does not encompass
190
00:12:21.799 --> 00:12:23.840
climate impacts. I mean, that's a question that I would
191
00:12:23.879 --> 00:12:29.039
actually post to you because of under the Natural Gas Act,
192
00:12:29.120 --> 00:12:33.919
I think that public convenience and necessity has been held
193
00:12:34.080 --> 00:12:40.080
to encompass environmental impacts, probably more systematically, I would say,
194
00:12:40.960 --> 00:12:45.200
I mean, it's a question that I have is whether
195
00:12:45.440 --> 00:12:48.840
whether certificate of public convenience and necessity under the Natural
196
00:12:48.840 --> 00:12:53.519
Gas Act hasn't included environmental considerations in a way that
197
00:12:54.480 --> 00:12:57.440
convenience and necessity under the Interstate Commerce Act has not.
198
00:12:59.159 --> 00:13:02.600
But if those are held to be sort of equivalent
199
00:13:02.639 --> 00:13:08.480
phrases with equivalent scope and don't include climate impacts, then
200
00:13:08.639 --> 00:13:12.159
essentially that is going to turn into an important limiting
201
00:13:12.200 --> 00:13:17.240
principle on what impacts can be studied in an eis
202
00:13:18.480 --> 00:13:21.360
in connection with a permit under those laws as well.
203
00:13:23.720 --> 00:13:30.279
So in Sable Trail, the certificated pipelines were directly feeding
204
00:13:30.360 --> 00:13:34.639
natural gas to the power plants that were then burning
205
00:13:34.840 --> 00:13:40.320
the gas of the pipelines transport and because of under
206
00:13:40.799 --> 00:13:48.240
Justice Kavanaws time separate in time and place standard, does
207
00:13:48.320 --> 00:13:55.440
that make Sable trail distinguishable from Eagle County case here
208
00:13:55.720 --> 00:13:59.399
where the eighty eight mile rails for Utah separated by
209
00:14:00.120 --> 00:14:03.919
the main branch line of the Unique Pacific Railway between
210
00:14:04.000 --> 00:14:09.519
there and the Gulf of Mexico's Will that be the
211
00:14:09.559 --> 00:14:11.759
sort of factual question that future cases.
212
00:14:11.519 --> 00:14:12.000
Will turn on.
213
00:14:13.559 --> 00:14:16.120
They may, right, I mean there are two questions here.
214
00:14:16.600 --> 00:14:21.840
Remember that Justice Justice Justice Sodo, myyer's concurrence said, we
215
00:14:21.919 --> 00:14:25.039
don't have to deal with that with that because the
216
00:14:25.080 --> 00:14:28.320
study of these you know, oil and downstream oil and
217
00:14:28.360 --> 00:14:34.720
gas production, oil and gas impacts is beyond the scope
218
00:14:34.840 --> 00:14:38.559
of the agency's authority under the Interstate Commerce Act. So
219
00:14:39.639 --> 00:14:44.279
open and shutcase, and so I just go back to
220
00:14:44.639 --> 00:14:47.039
that will be the threshold question of are we looking
221
00:14:47.080 --> 00:14:49.799
at something that's within the agencies the scope of the
222
00:14:49.799 --> 00:14:54.679
agency's authority. Then I suppose if we are, I mean
223
00:14:54.720 --> 00:15:01.639
a subsidiary question then is are these impacts the impacts
224
00:15:01.679 --> 00:15:05.039
of a project that's separate in time and space. This language,
225
00:15:05.039 --> 00:15:07.639
by the way, about separate in time and space is
226
00:15:07.759 --> 00:15:12.200
relevant because it is from the definition of indirect effects
227
00:15:12.320 --> 00:15:18.519
under the NEPA Regulation of CEQ and a document which
228
00:15:18.759 --> 00:15:22.200
the Court does not mention either in the Court's opinion
229
00:15:22.320 --> 00:15:25.679
or the concurrence, which is interesting in and of itself.
230
00:15:26.240 --> 00:15:29.440
And so what you could this is one respect in
231
00:15:29.480 --> 00:15:32.320
which I mean, the CEQ regulation has now been rescinded.
232
00:15:33.200 --> 00:15:35.840
But this is one respect in which you could say
233
00:15:35.840 --> 00:15:37.919
that if it had, if the CQ regulation had not
234
00:15:37.960 --> 00:15:43.399
been rescinded, this decision would essentially reverse the CEQ regulation
235
00:15:43.519 --> 00:15:46.759
to the extent of the CQ Regulation of NEPA created
236
00:15:46.879 --> 00:15:52.399
or purported to create judicially enforceable requirements to study cumulative impacts,
237
00:15:52.480 --> 00:15:57.519
to study alternatives outside the agency's jurisdiction, and.
238
00:15:57.919 --> 00:15:58.559
Things like that.
239
00:16:00.159 --> 00:16:02.360
But I will say, let me let me let's just
240
00:16:02.399 --> 00:16:07.200
go to the first basis of Kavanaugh's opinion. The first
241
00:16:07.279 --> 00:16:10.360
major thing that he says that was somewhat surprising and
242
00:16:10.519 --> 00:16:13.879
could be potentially maybe the most impactful part of this case,
243
00:16:15.080 --> 00:16:17.559
which is the way that he treats.
244
00:16:17.200 --> 00:16:19.320
The ei S is uh.
245
00:16:20.000 --> 00:16:22.879
As you know, he starts by saying that the ei
246
00:16:23.039 --> 00:16:26.039
S is not separate from the record of decision that
247
00:16:26.080 --> 00:16:30.159
triggers need per review and that's important because that means
248
00:16:30.279 --> 00:16:33.279
that just because an e I S is sufficient, it
249
00:16:33.320 --> 00:16:35.919
is insufficient it has some Let's say the AIS has
250
00:16:35.960 --> 00:16:39.759
some deficiency, it cannot be challenged as an agency action
251
00:16:39.919 --> 00:16:42.440
under the Administrative preced Di Act because.
252
00:16:42.200 --> 00:16:43.120
It is only one.
253
00:16:43.639 --> 00:16:47.679
The deficiency in the EIS is only one part of
254
00:16:47.879 --> 00:16:53.360
the question of the sufficiency of the agency action itself
255
00:16:53.720 --> 00:16:57.200
under the Administrative Preceded Act UH. And then the standard
256
00:16:57.240 --> 00:17:00.720
is going to be is this something that was required
257
00:17:00.840 --> 00:17:06.400
to inform Does the agency's decision have a have a
258
00:17:06.480 --> 00:17:11.400
reasonable explanation such that it can survive arbitrary and capricious.
259
00:17:10.880 --> 00:17:12.680
Review under Section seven or six of.
260
00:17:12.640 --> 00:17:16.519
The APA, And that will entail a question about whether
261
00:17:17.680 --> 00:17:22.400
whether the information was necessary to inform the agency, whether
262
00:17:22.519 --> 00:17:25.759
the agency would have changed its mind absent this information.
263
00:17:26.920 --> 00:17:31.559
And from there he makes another step which is very
264
00:17:31.599 --> 00:17:36.559
consequential potentially, which is to say that the level of
265
00:17:36.720 --> 00:17:41.799
detail in which an impact has to be studied is
266
00:17:41.839 --> 00:17:45.119
a matter left that is left essentially to the agency's
267
00:17:45.160 --> 00:17:48.359
discretion by the Administrative Procedure Act.
268
00:17:49.599 --> 00:17:51.960
And similarly, what.
269
00:17:51.920 --> 00:17:54.839
Impacts need to be studied is something that in the
270
00:17:54.920 --> 00:17:59.960
court should give substantial deference to the agency on. And similarly,
271
00:18:00.160 --> 00:18:03.400
what alternatives need to be studied under the law is
272
00:18:03.440 --> 00:18:07.880
something that that agent that courts should defer to agencies on,
273
00:18:08.480 --> 00:18:11.799
and that is potentially impactful, because of course courts have
274
00:18:11.880 --> 00:18:14.559
spent forty years not deferring to agencies on any of
275
00:18:14.599 --> 00:18:17.720
that right right now, now, that is that is not
276
00:18:17.839 --> 00:18:20.960
a problem necessarily underneath it. That's a problem of the
277
00:18:20.960 --> 00:18:24.200
fact that you know, as Richard Epstein has argued very convincingly,
278
00:18:24.279 --> 00:18:27.000
the administrative procedure, acts of difference doctrines have all been
279
00:18:27.000 --> 00:18:30.960
turned upside down. And so we see many cases an
280
00:18:30.960 --> 00:18:34.200
administrative law in which the court will start by saying,
281
00:18:35.160 --> 00:18:38.000
you know, of course, under arbitrary and capricious review with
282
00:18:38.119 --> 00:18:42.440
respect to an agency's technical or policy judgment, especially on
283
00:18:42.480 --> 00:18:45.920
the frontiers of science within an area of the agency's expertise,
284
00:18:46.200 --> 00:18:48.680
that's where the courts have to be at their most deferential.
285
00:18:49.000 --> 00:18:50.200
And then the next thing they do.
286
00:18:50.200 --> 00:18:52.599
Is like not defer to the agency at all, which
287
00:18:52.640 --> 00:18:54.319
is which is what the DC Circuit did in this
288
00:18:54.759 --> 00:18:56.960
in the case, in the decision below right, it just said,
289
00:18:57.279 --> 00:18:59.799
we're supposed, of course, we defer to the to the STB.
290
00:19:00.599 --> 00:19:03.400
And then it just said you know. The STV says
291
00:19:03.440 --> 00:19:05.200
that there's no fire hazard here.
292
00:19:05.240 --> 00:19:05.799
We disagree.
293
00:19:06.279 --> 00:19:09.480
The STB says that the you know that these impacts
294
00:19:09.559 --> 00:19:11.599
upstream or not not consequential.
295
00:19:11.680 --> 00:19:12.240
We disagree.
296
00:19:12.640 --> 00:19:14.839
Its plactic in a lot of these cases is that
297
00:19:14.880 --> 00:19:18.519
the courts are not supposed to pit affect environmental documents,
298
00:19:18.559 --> 00:19:21.240
but of course the courts. Wherever the courts say that,
299
00:19:21.240 --> 00:19:25.319
they of course then immediately go on to do just that. Now,
300
00:19:26.200 --> 00:19:30.440
this gets to how much of a ce change this decision.
301
00:19:30.039 --> 00:19:32.880
Might wind up being. Much of.
302
00:19:34.599 --> 00:19:38.240
Much current litigation turns on the question of whether or
303
00:19:38.319 --> 00:19:44.599
not specific effects are reasonably foreseeable, and that is that
304
00:19:44.720 --> 00:19:49.200
is what much much of the litigation is attempting to address.
305
00:19:49.240 --> 00:19:52.000
Whether one of the agency left out effects that are
306
00:19:52.480 --> 00:19:56.480
uh uh, that are in fact reasonably foreseeable, but that
307
00:19:56.559 --> 00:20:01.880
the agency did not include reasonable for SeeAbility does not
308
00:20:01.920 --> 00:20:08.119
really come up much at all, and Justice Kavanaugh's opinion, rather,
309
00:20:08.319 --> 00:20:13.279
his his decision focuses on the difference question from the
310
00:20:13.279 --> 00:20:17.039
standard of review right that the bedrock principle of judicial
311
00:20:17.039 --> 00:20:20.119
review and eplications can be stated in a word, deference.
312
00:20:22.160 --> 00:20:24.279
How much of a change do you think that is
313
00:20:24.319 --> 00:20:26.799
going to be? Are litigants still going to be arguing
314
00:20:26.839 --> 00:20:29.359
over whether or not the effects are reasonably foreseeable, or
315
00:20:29.400 --> 00:20:33.920
will they be arguing over the extent to which the
316
00:20:33.960 --> 00:20:37.279
agencies should be continuing to receive this difference.
317
00:20:38.480 --> 00:20:40.200
Well, let me just take a step back, first of
318
00:20:40.200 --> 00:20:46.559
all and talk about the broader pattern and tendency in
319
00:20:46.599 --> 00:20:52.480
the courts jurisprudence unadministrative law generally, and what I think
320
00:20:52.519 --> 00:20:55.640
this what I think that this decision might portend for
321
00:20:56.279 --> 00:21:00.599
that general trend. This is a court that and remember
322
00:21:00.680 --> 00:21:03.559
Justice Kavanaugh k was is sort of like an administrative
323
00:21:03.640 --> 00:21:06.880
law expert. Given his time at Staff Secretary in the
324
00:21:06.920 --> 00:21:09.400
Bush administration and then his time on the d C Circuit,
325
00:21:09.839 --> 00:21:12.559
he has very strong and very well developed opinions on
326
00:21:12.640 --> 00:21:17.319
administrative law, and so it is so it is not
327
00:21:17.359 --> 00:21:20.359
surprising that he's taking the lead on this. But just
328
00:21:21.200 --> 00:21:23.640
to go back to the Lower Bright decision, what we
329
00:21:23.680 --> 00:21:27.319
see is a court that is that is starting to
330
00:21:28.000 --> 00:21:32.319
sort of say, okay, you know, in these areas important
331
00:21:32.359 --> 00:21:35.480
areas of administrative law, our jurisprudence has like gone off
332
00:21:35.519 --> 00:21:39.920
the rails in Low or Bright. Of course, the decision was,
333
00:21:40.200 --> 00:21:44.680
you know, to reverse the Chevron case. Was Chevron the
334
00:21:44.759 --> 00:21:47.480
doctrine was that agencies are the courts are supposed to
335
00:21:47.480 --> 00:21:50.279
defer to agency interpretations of law if there's like some
336
00:21:50.400 --> 00:21:57.559
ambiguity in the statute the delegating rulemaking authority and the court.
337
00:21:57.640 --> 00:21:59.519
You know, that's and that's where after forty years the
338
00:21:59.559 --> 00:22:01.519
Court said, you know what, that's just not right because
339
00:22:01.559 --> 00:22:04.720
the Administrative Procedure Acts says that courts shall determine all
340
00:22:04.799 --> 00:22:08.119
questions relevant questions of law, and that's section seven oh six,
341
00:22:08.559 --> 00:22:11.119
and section seven oh six, you know, has a very
342
00:22:11.160 --> 00:22:17.880
sensible allocation of difference, doct of deference according to the
343
00:22:18.000 --> 00:22:22.480
respective comparative advantage of agencies and courts. It's the it's
344
00:22:22.519 --> 00:22:24.720
the province of courts to say what the law means.
345
00:22:24.759 --> 00:22:28.759
That's why Chevron was wrong, and that's why courts should
346
00:22:28.799 --> 00:22:31.319
not be deferring to agency interpretations of law. On the
347
00:22:31.359 --> 00:22:36.160
other hand, it is the province of agencies to say
348
00:22:36.599 --> 00:22:39.680
it is not the province of courts to say what,
349
00:22:40.240 --> 00:22:43.839
you know, what a technical or fact finding or policy
350
00:22:43.920 --> 00:22:46.839
judgment ought to be under a particular law. That is
351
00:22:46.839 --> 00:22:49.839
the comparative advantage of agencies. And so in a way
352
00:22:49.960 --> 00:22:53.599
you could see this decision as the other side of
353
00:22:53.640 --> 00:22:59.759
the coin of Loperbright and and if that is the case,
354
00:22:59.799 --> 00:23:02.279
then it could be very consequential because if now we
355
00:23:02.319 --> 00:23:06.240
are deferring two agencies, if the courts are going to
356
00:23:06.240 --> 00:23:09.279
be deferring to agencies on what impacts to study, what
357
00:23:09.400 --> 00:23:12.839
alternatives to study, and how much detailed to study them,
358
00:23:12.839 --> 00:23:17.920
in you have you have potentially very significantly reduced the
359
00:23:17.920 --> 00:23:22.000
litigation target area of an environmental impact statement or you know,
360
00:23:22.279 --> 00:23:26.880
other elements of NEPA review. So that is very impactful.
361
00:23:28.880 --> 00:23:30.359
And I would.
362
00:23:30.200 --> 00:23:33.960
Say, what where it is going to you know that
363
00:23:34.039 --> 00:23:40.079
where reasonable foreseeability runs into this is with respect to
364
00:23:40.119 --> 00:23:43.559
the second prong. It seems to me, which is this
365
00:23:43.759 --> 00:23:48.039
idea that if an indirect effect, because the court, you know,
366
00:23:48.119 --> 00:23:50.960
admits that we still have to study indirect effects under NEPA.
367
00:23:51.039 --> 00:23:54.759
And I've even you know, I think that the NEPA
368
00:23:54.799 --> 00:23:58.319
has really turned into like a blob compared to what
369
00:23:58.440 --> 00:24:02.240
it originally. Someone said an oak tree from a from
370
00:24:02.279 --> 00:24:03.759
an acorn.
371
00:24:04.319 --> 00:24:04.440
Uh.
372
00:24:04.799 --> 00:24:08.920
But I mean I I still think that when the
373
00:24:09.000 --> 00:24:12.000
law calls for the study of effects, it provides no
374
00:24:12.119 --> 00:24:15.920
basis for distinguishing between direct effects and indirect effects. So
375
00:24:15.960 --> 00:24:17.960
I still think that underneath it, you have to study
376
00:24:18.000 --> 00:24:21.000
indirect effect effects, regardless of whether they're a direct or indirect.
377
00:24:21.200 --> 00:24:25.039
But here Kavanaugh gives an example of the run off
378
00:24:27.400 --> 00:24:29.759
into a stree as an indirect effect, and even his
379
00:24:29.880 --> 00:24:35.240
opinion as something that is likely properly within the skill Yeah,
380
00:24:35.759 --> 00:24:36.480
agency review.
381
00:24:36.680 --> 00:24:40.039
Now, the weird thing about this opinion is that that
382
00:24:40.079 --> 00:24:43.519
it's that it it has a carve out from indirect
383
00:24:43.559 --> 00:24:47.759
effects that need to be studied for proect other projects
384
00:24:47.759 --> 00:24:50.200
that are removed in time and place from the agency
385
00:24:50.240 --> 00:24:53.400
action or from the project that's under consideration in the
386
00:24:53.440 --> 00:24:55.000
agency action at hand.
387
00:24:55.960 --> 00:24:56.240
Uh.
388
00:24:56.279 --> 00:25:02.279
And that strikes me as strange because as uh, you could,
389
00:25:02.279 --> 00:25:05.720
you can, you can. It's it's easy to imagine downstream
390
00:25:05.799 --> 00:25:12.680
impacts that are exactly as foreseeable or unforeseeable as the
391
00:25:12.880 --> 00:25:16.200
downstream impacts of a project removed in time and place,
392
00:25:17.279 --> 00:25:20.519
except that there's no project. And then, presumably under this
393
00:25:20.599 --> 00:25:23.319
court's opinion, if it's reasonably foreseeable, you would have to
394
00:25:23.480 --> 00:25:26.920
study those impacts. But if there's an intervening project, you wouldn't.
395
00:25:27.480 --> 00:25:29.240
And I think that the I think that maybe the
396
00:25:29.319 --> 00:25:33.400
analogy to torte law proximate causation is doing a little
397
00:25:33.400 --> 00:25:37.079
too much work here because, uh, you know, because in
398
00:25:37.200 --> 00:25:40.680
proximate cause, and when you know, what we say breaks
399
00:25:41.480 --> 00:25:45.039
the chain of causation under torte law is, uh, if
400
00:25:45.240 --> 00:25:47.960
if there was something between my negligent act and the
401
00:25:48.160 --> 00:25:52.039
damage caused by it, where some intervening act or add
402
00:25:52.240 --> 00:25:53.680
negligence of its own.
403
00:25:54.240 --> 00:25:56.920
Then uh, then we're going to say that.
404
00:25:56.799 --> 00:25:59.640
That breaks the even if even if it's still even
405
00:25:59.680 --> 00:26:01.720
if my I think is still a butt four causation,
406
00:26:02.880 --> 00:26:06.119
we're going to say that it's not the legally relevant cause,
407
00:26:06.160 --> 00:26:09.119
it's not proximate. It didn't my action did not proximately
408
00:26:09.240 --> 00:26:14.680
cause the effect. This has been analogized to the NEPA context,
409
00:26:14.720 --> 00:26:18.720
of course, by Justice Thomas's opinion, you know, since Justice
410
00:26:18.759 --> 00:26:22.200
Thomas's opinion in Public Citizen in the last major NEPA case.
411
00:26:23.319 --> 00:26:28.880
And so I just wonder whether that's doing too much
412
00:26:28.920 --> 00:26:32.960
work because the case of projects that are removed in time,
413
00:26:33.119 --> 00:26:36.640
or or.
414
00:26:35.519 --> 00:26:38.799
Would you think that between the.
415
00:26:41.960 --> 00:26:46.279
Let's say, the the the missions from the train that
416
00:26:46.440 --> 00:26:50.319
is operating on the line, which Kavanaugh suggests is within
417
00:26:50.440 --> 00:26:54.039
scope and that's an indirect effect, the air pollution and
418
00:26:54.079 --> 00:26:58.160
the effect that might have on public health, that that
419
00:26:58.359 --> 00:27:04.759
is separate from the downstream effects of the refining of
420
00:27:04.960 --> 00:27:07.880
the oil. That's the butt for I mean, that is
421
00:27:07.920 --> 00:27:12.880
the that is the project at hand versus uh, something.
422
00:27:12.559 --> 00:27:17.559
Else, versus the project versus another project, that project time
423
00:27:17.559 --> 00:27:18.039
and space.
424
00:27:18.640 --> 00:27:24.480
Yeah, now, which he distinguishes from things that will happen
425
00:27:24.599 --> 00:27:28.880
incidental to the project, which I think he considers to
426
00:27:28.920 --> 00:27:32.000
be things like oil and gas production, which is perhaps
427
00:27:32.119 --> 00:27:36.160
more products and more more nearby in time and place
428
00:27:36.200 --> 00:27:39.359
to the rail line. One can imagine these trains are
429
00:27:39.400 --> 00:27:41.519
going to be going pretty close to where the production
430
00:27:41.599 --> 00:27:44.960
fields actually are. But nevertheless, that is not that does
431
00:27:45.000 --> 00:27:48.359
not fall within his definition of nearby and time and place.
432
00:27:49.200 --> 00:27:52.839
He gives a few examples of this. Right, he says,
433
00:27:52.880 --> 00:27:55.839
the agency may draw what is what it reasonably concludes
434
00:27:55.880 --> 00:27:59.039
is a manageable line, one that encompasses the effects of
435
00:27:59.119 --> 00:28:02.200
the project that but not the effects of projects separate
436
00:28:02.240 --> 00:28:03.000
time and place.
437
00:28:03.759 --> 00:28:06.519
True, a new airport may someday.
438
00:28:06.319 --> 00:28:08.680
Lead to a new sort of highway, a new pipeline,
439
00:28:08.680 --> 00:28:11.319
to a new power plant, a new housing development, to
440
00:28:11.400 --> 00:28:13.680
a new subway stop at the environmental effects of the
441
00:28:13.720 --> 00:28:17.519
project at hand, the constitute in nepo's textual.
442
00:28:17.640 --> 00:28:22.160
Focus, So let.
443
00:28:21.960 --> 00:28:26.000
Me This is where I think that it's really hard
444
00:28:26.279 --> 00:28:30.680
to separate the analysis. You know, since it's since its passage,
445
00:28:30.880 --> 00:28:34.200
NEPA has been searching. Courts have been searching for some
446
00:28:34.279 --> 00:28:37.759
limiting principle on what downstream and upstream impacts need to
447
00:28:37.799 --> 00:28:41.759
be studied under NEPA. And one of the arguments that
448
00:28:41.759 --> 00:28:44.319
we make in our brief is that the limiting principle
449
00:28:44.400 --> 00:28:47.400
is not in NEPA. It's in the Administrative Procedure Act, right,
450
00:28:47.480 --> 00:28:50.039
and it's and it is. It is a corollary of
451
00:28:50.079 --> 00:28:53.880
the deference doctrines undersection seven oh six of the Administrative
452
00:28:53.880 --> 00:28:59.799
Procedure Act. And I am I was surprised that the
453
00:29:00.119 --> 00:29:05.000
or did not cite to the Administrative Procedure Act. And
454
00:29:05.039 --> 00:29:07.480
I'm particularly surprised if the court did not cite to
455
00:29:08.240 --> 00:29:11.519
an important piece of dictum in the West Virginia versus EPA,
456
00:29:12.160 --> 00:29:17.079
in which the court says that where the agency has
457
00:29:17.160 --> 00:29:22.279
no particular expertise on an issue, Congress would presumably not
458
00:29:22.400 --> 00:29:25.240
have required them to study it. That's a very important
459
00:29:25.279 --> 00:29:30.319
point because under the Administrative Procedure Act, on the arbitrary
460
00:29:30.359 --> 00:29:33.519
and capricious side, which is where courts are supposed to
461
00:29:33.559 --> 00:29:40.960
defer to agencies determinations of technical and policy matters. The
462
00:29:41.920 --> 00:29:47.400
courts do not defer to an agency that is, that
463
00:29:47.559 --> 00:29:50.160
is talking about things that it doesn't that nobody at
464
00:29:50.160 --> 00:29:53.640
the agency knows anything about. Right, Because if the agency
465
00:29:53.680 --> 00:29:58.079
has no particular expertise, if courts just defer to agencies
466
00:29:58.240 --> 00:30:01.319
within their areas of expertise, because the agencies are the experts,
467
00:30:01.359 --> 00:30:05.519
presumably they do not defer to agencies outside.
468
00:30:05.039 --> 00:30:07.000
Of those areas of expertise, right.
469
00:30:07.319 --> 00:30:10.759
And so then the question is well, so that and
470
00:30:11.039 --> 00:30:13.400
of course the agency's expertise is intimately tied to the
471
00:30:13.440 --> 00:30:17.720
agency's jurisdiction. No one at STV knows anything about climate impacts.
472
00:30:17.720 --> 00:30:19.960
No one at STV has to know anything about climate
473
00:30:20.000 --> 00:30:22.240
impacts because STB doesn't do climate policy.
474
00:30:22.880 --> 00:30:24.920
And so it should be a.
475
00:30:24.960 --> 00:30:30.119
Very straightforward to say that this is where the DC
476
00:30:30.279 --> 00:30:33.359
Circuit got it so wrong. That the DC Circuit is
477
00:30:33.880 --> 00:30:37.519
not only not deferring to the agency within its areas
478
00:30:37.559 --> 00:30:40.440
of jurisdiction and expertise, but then it goes on to
479
00:30:40.480 --> 00:30:42.480
say that the agency should have talked about all this
480
00:30:42.559 --> 00:30:46.519
stuff that is outside of the agency's jurisdiction and expertise
481
00:30:46.559 --> 00:30:50.960
and which the agency presumably would not have and which
482
00:30:50.960 --> 00:30:53.440
the agency presumably wouldn't have gotten any deference on. And
483
00:30:53.480 --> 00:30:57.079
not only that, remember that in State Farm the Court
484
00:30:57.160 --> 00:31:03.640
says that if the one basis for an agency action
485
00:31:03.799 --> 00:31:07.680
being deemed arbitrary and capricious is if the agency considered
486
00:31:07.720 --> 00:31:11.519
factors that Congress did not intended to consider. And so
487
00:31:11.640 --> 00:31:15.319
to me, the question is does NEPA, when it says
488
00:31:15.759 --> 00:31:20.720
study the impacts of this action without any further qualification?
489
00:31:21.039 --> 00:31:24.440
Can you read that as imposing on the agency an
490
00:31:24.480 --> 00:31:30.359
additional scope of review beyond what its jurisdiction and expertise is.
491
00:31:31.000 --> 00:31:33.359
And I think that the answer is that the NEPA
492
00:31:33.440 --> 00:31:36.359
has to be read consistent with the Administrative Procedure Act,
493
00:31:36.359 --> 00:31:40.160
which counsels against so expensive reading these DC.
494
00:31:40.119 --> 00:31:44.039
Circuit decisions stable trail, I think, being the prime example
495
00:31:45.480 --> 00:31:50.319
seemed in my view, in christ Danley's view work an
496
00:31:50.359 --> 00:31:56.200
extension of first substance of authority, that it was the
497
00:31:56.319 --> 00:32:00.920
Court that was reading the regular or authority that the
498
00:32:00.920 --> 00:32:06.119
Commission has as a supposed disposal in an incredibly broad
499
00:32:06.200 --> 00:32:11.960
facts and the end of this brief that my firm
500
00:32:12.039 --> 00:32:16.039
filed on behalf of a group of Republican senators we
501
00:32:16.319 --> 00:32:21.079
argued that the the the DC Circuit was reading Ferks
502
00:32:21.119 --> 00:32:26.880
and the Service Transportation Boards Organic Act so broadly uh
503
00:32:27.160 --> 00:32:33.279
as to raise non delegation of major questions doctrine issues. Now,
504
00:32:35.000 --> 00:32:39.319
I suppose that that scope of the agency's authority, though, becomes,
505
00:32:39.079 --> 00:32:43.160
as you're spading earlier, that's a question of law on
506
00:32:43.200 --> 00:32:47.599
which the agency doesn't necessarily get difference now under lower right,
507
00:32:50.839 --> 00:32:53.519
while at the same time does as Kavanaugh was saying,
508
00:32:53.519 --> 00:32:58.000
that deference should be the touchstone of judicial review under NETHO.
509
00:32:58.440 --> 00:32:59.720
How do you see those two things?
510
00:33:00.079 --> 00:33:04.920
I think, well, he's and actually Keviana says exactly what
511
00:33:04.960 --> 00:33:07.279
you just said, right. Keviana says, of course, it's the
512
00:33:07.279 --> 00:33:09.799
province of courts to say what the agencies, you know,
513
00:33:09.839 --> 00:33:11.480
what the meaning of a statute is, or what the
514
00:33:11.480 --> 00:33:12.759
purpose of the statute is.
515
00:33:13.640 --> 00:33:14.079
Uh.
516
00:33:14.119 --> 00:33:16.559
But I but then he's, you know, he hones in
517
00:33:16.640 --> 00:33:20.319
on this point and says, well, uh, you know, what
518
00:33:20.480 --> 00:33:24.400
level of detail is relevant to the agency decision maker
519
00:33:24.880 --> 00:33:31.960
under NEPA. For what level of detail with respect to
520
00:33:32.000 --> 00:33:34.880
the study of environmental impacts under NEPA is relevant to
521
00:33:34.880 --> 00:33:37.680
the agency decision maker. That's a technical question, it's a
522
00:33:37.720 --> 00:33:40.319
factual question, and it is not the province of courts
523
00:33:40.319 --> 00:33:43.200
to say what that what that is? Uh And so
524
00:33:43.319 --> 00:33:44.880
here again we get to what I think is the
525
00:33:44.920 --> 00:33:48.240
real core of this decision, which is that that you know,
526
00:33:48.319 --> 00:33:51.880
it is certainly the case. I mean, I'm very confident
527
00:33:52.559 --> 00:33:57.000
that that litigants will you know that that that project
528
00:33:57.240 --> 00:34:02.000
sponsors and the US government defending ANIPA, defending an agency
529
00:34:02.079 --> 00:34:05.960
determination under NEPA will now be citing to language in
530
00:34:06.000 --> 00:34:10.320
this case that and making an argument that they really
531
00:34:10.519 --> 00:34:15.840
couldn't make us on us on US firm grounds before
532
00:34:15.880 --> 00:34:20.000
this decision, which is that all of these things, what
533
00:34:20.119 --> 00:34:22.360
level of deep you know, what impacts to study, what
534
00:34:22.440 --> 00:34:25.559
alternatives to study, and how much detail to study them
535
00:34:25.559 --> 00:34:29.159
in is a matter that is left to agency discretion
536
00:34:29.360 --> 00:34:35.000
basically uh uh and therefore not reviewable by not reviewable
537
00:34:35.000 --> 00:34:38.840
by course something substantial difference, something that that courts have
538
00:34:38.880 --> 00:34:41.719
to give substantial difference to the agencies on this was
539
00:34:41.880 --> 00:34:44.599
if I mean, if given the full potential effect of that,
540
00:34:44.719 --> 00:34:49.239
it could really significantly reduce the litigation target area of
541
00:34:49.440 --> 00:34:50.639
a lot of NEPA reviews.
542
00:34:52.599 --> 00:34:54.639
Yea Love's So I.
543
00:34:54.599 --> 00:34:58.239
Remain a little pessimistic that the courts will continue to
544
00:34:59.599 --> 00:35:02.880
read an of these agencies authorities when doing things like
545
00:35:03.400 --> 00:35:07.239
oil and gas leasing latent authorities for the agency to
546
00:35:07.239 --> 00:35:08.519
act as a climate regulator.
547
00:35:09.039 --> 00:35:16.119
But I suppose we shall see Yeah, uh.
548
00:35:17.519 --> 00:35:20.000
Do we should we turn to Q and A perhaps
549
00:35:20.039 --> 00:35:34.880
sounds great. I well, do we have any questions?
550
00:35:35.280 --> 00:35:38.440
I don't believe weave audience questions. If you have any
551
00:35:38.440 --> 00:35:41.079
final thoughts you want to give, please feel free.
552
00:35:41.079 --> 00:35:42.599
Otherwise you can wrap slightly early.
553
00:35:49.239 --> 00:35:52.119
I'm happy to just just jump in with a few
554
00:35:52.280 --> 00:35:55.920
a few final thoughts, you know the the It's very
555
00:35:56.000 --> 00:35:59.639
interesting to read, uh Justice, so do my owers concurrence
556
00:35:59.800 --> 00:36:02.880
in case she seems to think that this is all
557
00:36:02.960 --> 00:36:07.039
very simple and is like definitely not a big deal.
558
00:36:07.800 --> 00:36:11.199
And I mean, I guess if her opinion boils down
559
00:36:11.239 --> 00:36:14.440
to anything, it boils down to you know, this case,
560
00:36:14.440 --> 00:36:17.519
As she says at the outset, this decision follows inevitably
561
00:36:17.559 --> 00:36:22.280
from our prior cases on this, and I just I
562
00:36:22.400 --> 00:36:26.239
wonder if that's true, because what she is saying is
563
00:36:26.239 --> 00:36:32.239
is is is you know the big difference between this
564
00:36:32.400 --> 00:36:36.719
case and the public citizen case. And where I thought
565
00:36:36.760 --> 00:36:41.679
the d C circuit was was on strongest ground was
566
00:36:41.719 --> 00:36:46.039
saying that you know, in the in the public citizen case,
567
00:36:46.800 --> 00:36:51.119
what was that issue? Was a non discretionary was it was?
568
00:36:51.159 --> 00:36:54.559
It was a statute that created a non discretionary obligation
569
00:36:54.599 --> 00:36:56.840
on the part of the agency. So the agency had
570
00:36:56.920 --> 00:37:01.760
literally no discretion whatsoever in granteding uh, you know, in
571
00:37:01.800 --> 00:37:04.519
taking the in taking the action that was required under
572
00:37:04.559 --> 00:37:07.760
the statute. Once the President authorized the entry of trucks
573
00:37:07.840 --> 00:37:12.079
under the under the under NAFTA, UH, the agency had
574
00:37:12.079 --> 00:37:14.880
to issue safety regulations. So therefore there was no point
575
00:37:15.039 --> 00:37:18.519
in studying the environmental impacts because there was no decision.
576
00:37:19.320 --> 00:37:22.440
This language about limited statue where the agency has limited
577
00:37:22.480 --> 00:37:26.519
statutory authority over the impacts really really was put to
578
00:37:26.559 --> 00:37:29.840
the test in this case because a convenience of certificate,
579
00:37:30.440 --> 00:37:33.639
a certificate of convenience and necessity is arguably the other
580
00:37:33.760 --> 00:37:36.400
end of the spectrum from that right, that is, convenience
581
00:37:36.400 --> 00:37:41.159
and necessity is like the broadest possible standard, and agencies
582
00:37:41.320 --> 00:37:45.599
consider all kinds of things and in determining public convenience
583
00:37:45.599 --> 00:37:46.280
and necessity.
584
00:37:46.920 --> 00:37:47.400
Uh.
585
00:37:47.440 --> 00:37:52.760
And so you know, finding precedents, there are Supreme Court
586
00:37:52.800 --> 00:37:55.719
precedents that have said, well, okay, it's convenience and necessity
587
00:37:55.760 --> 00:37:58.079
is broad, but it's not infinite, and it turns on
588
00:37:58.119 --> 00:38:01.000
what the purpose of the statute is. Those are important decisions.
589
00:38:01.000 --> 00:38:06.519
Commissioner Chairman Danley has pointed that out. But but this
590
00:38:06.719 --> 00:38:10.440
is not something that courts have focused on at all.
591
00:38:10.519 --> 00:38:13.519
And so she's acting, you know, sort of my is
592
00:38:13.559 --> 00:38:16.719
writing as if this is clear to everybody, but it's not.
593
00:38:16.840 --> 00:38:19.199
It has not been clear to many, many district and
594
00:38:19.239 --> 00:38:23.119
appeals courts going back forty years. And so that's a
595
00:38:23.159 --> 00:38:27.719
potentially significant change now that focuses on on the scope
596
00:38:27.760 --> 00:38:30.360
of the of the agency's authority under the given the
597
00:38:30.400 --> 00:38:31.960
purpose of the statute.
598
00:38:33.440 --> 00:38:33.639
Uh.
599
00:38:33.679 --> 00:38:36.480
And again, you know, how much for the first part
600
00:38:36.480 --> 00:38:39.760
of the decision, how much effect we're going to give
601
00:38:40.360 --> 00:38:43.880
to the to the to the defference that the court
602
00:38:43.960 --> 00:38:48.199
says is required, how much you know, how much effect
603
00:38:48.480 --> 00:38:51.320
district courts and courts of appeal are going to give
604
00:38:51.360 --> 00:38:53.400
to that I think will be the biggest determinant of
605
00:38:53.400 --> 00:38:55.360
what the long term impact of this decision is.
606
00:38:57.519 --> 00:39:02.159
Right. Well, let's heard too, the Trump administration is doing.
607
00:39:03.239 --> 00:39:08.480
On the first day of President Trump's second term, here
608
00:39:09.119 --> 00:39:14.639
be issued an executive order unleashing American energy, in which
609
00:39:14.639 --> 00:39:20.320
he directed in which he revoked the President Carter's executive
610
00:39:20.400 --> 00:39:28.920
order directing CEQ to establish and create the CEQ MIEPA
611
00:39:29.039 --> 00:39:32.760
reg framework that has provided much of the skeleton for
612
00:39:32.840 --> 00:39:39.320
neeper reviews for the last forty plus years. And now
613
00:39:39.440 --> 00:39:42.360
CEQ is supposed to be leading an effort, coordinating an
614
00:39:42.360 --> 00:39:48.559
effort with the individual agencies to promulgate new rules tailored
615
00:39:48.599 --> 00:39:53.599
to the specific agency statutory authorities, to minimize the scope
616
00:39:53.800 --> 00:39:56.800
of the reviews, and to move the reviews as quickly
617
00:39:56.840 --> 00:40:00.280
as possible. What impact do you think this case going
618
00:40:00.400 --> 00:40:02.840
to add on that on that effort.
619
00:40:04.440 --> 00:40:06.079
Well, let me take a step back first of all
620
00:40:06.119 --> 00:40:08.400
and say this this raises an issue that could have
621
00:40:08.480 --> 00:40:10.960
been the basis of decision but was not even mentioned
622
00:40:10.960 --> 00:40:12.320
in this case. It could have been part of the
623
00:40:12.320 --> 00:40:14.360
basis of decision but was not mentioned in this case,
624
00:40:14.360 --> 00:40:17.559
which is what this legal status of the CQ regulation
625
00:40:17.599 --> 00:40:25.159
of NEPA is. So, if NIPA contains some implicit rule
626
00:40:25.199 --> 00:40:31.280
making authority for CEQ, then the recision of the Carter
627
00:40:31.480 --> 00:40:35.079
era executive order that you mentioned would have had essentially
628
00:40:35.159 --> 00:40:38.280
no no real effect. But if the position, but the
629
00:40:38.280 --> 00:40:44.480
position of the administration here now implicitly is that that
630
00:40:45.239 --> 00:40:48.599
the c that CEQ that NEPA has no rulemaking authority,
631
00:40:48.599 --> 00:40:52.440
which of course it does not. This fact somehow escaped
632
00:40:52.480 --> 00:40:54.280
everybody's attention for forty years.
633
00:40:54.280 --> 00:40:55.039
I don't know how.
634
00:40:55.159 --> 00:40:59.159
But but CEQ has no rule making NEPA has no
635
00:40:59.239 --> 00:41:05.480
explicit rulemaking authority for CEQ, and therefore the only basis
636
00:41:05.599 --> 00:41:09.159
of the CEQ regulation was this Carter era executive order,
637
00:41:09.159 --> 00:41:12.320
which means that the CQ so called regulation is really
638
00:41:12.400 --> 00:41:14.719
just an executive is really just has the same status
639
00:41:14.760 --> 00:41:17.639
as an executive order itself, which means that it's sort
640
00:41:17.679 --> 00:41:22.519
of like a process. It's an internal agency guidance kind
641
00:41:22.519 --> 00:41:24.880
of a document like Executive.
642
00:41:24.519 --> 00:41:26.199
Order twelve eighty sixty six for example.
643
00:41:26.760 --> 00:41:36.400
So when the Carter era executive order was rescinded, CQ
644
00:41:36.800 --> 00:41:40.760
came to a determination that said, okay, well, in that case,
645
00:41:41.000 --> 00:41:44.239
then if there is no explicit rulemaking authority, then even
646
00:41:44.280 --> 00:41:47.039
though the CEQ regulation was adopted on the way in
647
00:41:47.320 --> 00:41:50.679
under Notice in comment rule making under the Administrative Procedure Act,
648
00:41:51.639 --> 00:41:55.159
we know that it doesn't have to go through notice
649
00:41:55.159 --> 00:41:57.599
in comment rule making under the APA on the way out.
650
00:41:57.679 --> 00:42:00.360
So we're just going to we're going to we're going
651
00:42:00.360 --> 00:42:04.039
to rescind the rule under a interim final under an
652
00:42:04.079 --> 00:42:07.679
interim final rule, which they did, and courts in Idaho
653
00:42:07.960 --> 00:42:10.159
and the d C Circuit have you know, in the
654
00:42:10.199 --> 00:42:14.920
meantime said yeah, the CQ regulation is not judicially enforceable.
655
00:42:15.320 --> 00:42:17.920
Therefore it has the status of you know, internal agency
656
00:42:17.920 --> 00:42:22.880
guidance under the APA. I would point out, however, that
657
00:42:22.880 --> 00:42:26.119
that you know, there is people talk about, is the
658
00:42:26.559 --> 00:42:31.760
is the Q regulation binding on agencies? And I would
659
00:42:31.800 --> 00:42:36.000
say that that conflates two different senses of the word binding,
660
00:42:36.960 --> 00:42:41.159
because even though the CQ regulation should not be judicially
661
00:42:41.239 --> 00:42:46.800
enforceable against agencies anymore than twelve eight sixty six regulatory
662
00:42:46.880 --> 00:42:50.760
review is enforceable against agencies by private parties, that does
663
00:42:50.800 --> 00:42:53.400
not mean that it's not binding as a matter of
664
00:42:53.760 --> 00:42:57.760
an inherent executive authority under Article two under the president,
665
00:42:57.760 --> 00:43:00.400
you know, as a matter of presidential administration, if the
666
00:43:00.440 --> 00:43:04.639
President says, or through CEQ says, agencies, you shall do
667
00:43:04.719 --> 00:43:06.679
it this, and you shall do it in this way.
668
00:43:06.760 --> 00:43:11.559
The agencies, executive branch agencies have to obey that, not
669
00:43:11.679 --> 00:43:14.159
fork of course, or an independent agencies for the moment,
670
00:43:14.679 --> 00:43:18.079
but executive branch agencies have to have to obey that So.
671
00:43:18.039 --> 00:43:18.800
Why did that matter?
672
00:43:18.880 --> 00:43:23.320
Because now the part of the unleashing American Energy Executive Order,
673
00:43:23.519 --> 00:43:25.679
the part of the to do list that CQ is
674
00:43:25.719 --> 00:43:29.400
in now is leading a series of interagency working groups
675
00:43:29.480 --> 00:43:37.280
on implementation of NIPA regulations in accordance with the policy
676
00:43:37.280 --> 00:43:38.400
of the Executive Order.
677
00:43:40.599 --> 00:43:44.119
And so to answer, to give a quick answer to
678
00:43:44.159 --> 00:43:45.280
your question, so I.
679
00:43:45.239 --> 00:43:47.960
Would say first of all that CQ will hopefully be
680
00:43:48.039 --> 00:43:52.639
making use of its Presidential directive authority to the extent,
681
00:43:53.039 --> 00:43:56.039
to the maximum extent possible, to be as prescriptive as
682
00:43:56.079 --> 00:44:00.840
possible about how the agencies are supposed to implement NEPA UH.
683
00:44:00.920 --> 00:44:04.280
And in that connection, I hope that CEQ will solve
684
00:44:04.320 --> 00:44:08.000
several problems. One is of the ambiguities and the Fiscal
685
00:44:08.039 --> 00:44:11.360
Responsibility Act amendments to NIPA, which raised questions of their
686
00:44:11.400 --> 00:44:14.079
own that we didn't get to that. I think agencies
687
00:44:14.159 --> 00:44:18.880
need guidance on UH and UH and and and c
688
00:44:19.079 --> 00:44:23.239
Q has an opportunity now UH to make maximum use
689
00:44:23.280 --> 00:44:27.000
of this opinion by saying by saying that agencies shall
690
00:44:27.119 --> 00:44:32.920
treat UH in their regulations, shall incorporate the principle from
691
00:44:32.960 --> 00:44:37.880
this decision that they can expect UH you know, close
692
00:44:37.920 --> 00:44:42.159
to full deference on what alternatives to study, what impacts
693
00:44:42.199 --> 00:44:44.159
to study, and how much detail to study them in.
694
00:44:44.599 --> 00:44:48.480
And therefore CQ is in a position to prescribe what
695
00:44:48.559 --> 00:44:51.360
impacts to study, what alternatives to study, and how much
696
00:44:51.400 --> 00:44:52.519
detail they can study them in.
697
00:44:52.800 --> 00:44:58.960
Well, question one of my old question for you full
698
00:44:58.679 --> 00:45:03.920
we will wrap this up. The net By regulations provided
699
00:45:04.079 --> 00:45:11.920
a vocabulary providing concepts that were the subject of munch
700
00:45:11.960 --> 00:45:17.280
futi for review over the decades, concepts like cumulative impacts,
701
00:45:17.920 --> 00:45:24.000
connected actions, and the like. To what extent do you
702
00:45:24.119 --> 00:45:28.440
think courts will still look to some of those legacy
703
00:45:28.480 --> 00:45:33.559
concepts that we're in the now rescinded regulations as they
704
00:45:33.599 --> 00:45:37.320
review whether or not, even under this highly differential standard,
705
00:45:39.639 --> 00:45:43.360
the agencies are meeting their APA obligations.
706
00:45:43.639 --> 00:45:46.800
Yeah, well, it's it's very easy to imagine, isn't it
707
00:45:46.880 --> 00:45:50.800
that that courts will just that this will be just
708
00:45:50.840 --> 00:45:54.119
a speed bump, and that courts will just say, well,
709
00:45:54.159 --> 00:45:56.960
you know, so what impacts is the agency supposed to
710
00:45:56.960 --> 00:46:01.280
study here? Well, you know, our courts have said, our
711
00:46:01.320 --> 00:46:04.119
decisions have said that they have to study cumulative impacts,
712
00:46:04.119 --> 00:46:07.480
and of course those decisions were saying cumulative impacts because
713
00:46:07.800 --> 00:46:10.079
they when they said cumulative impacts, they were citing to
714
00:46:10.119 --> 00:46:14.079
the now rescindancy cregulation of NEPA. But now they could say, well,
715
00:46:14.119 --> 00:46:16.719
this is part of the rule of decision and it's
716
00:46:16.760 --> 00:46:19.159
part of our jurisprudence. So we're going to just continue
717
00:46:19.199 --> 00:46:25.440
to require cumulative impacts because according to our cases, you know,
718
00:46:25.760 --> 00:46:27.840
that's part of the impacts that need to be studied
719
00:46:27.840 --> 00:46:32.320
by the agency. And there's a version of you know,
720
00:46:32.400 --> 00:46:38.320
this is and there's a related problem which we are
721
00:46:38.360 --> 00:46:42.079
going to encounter also in the case in court interpretations
722
00:46:42.159 --> 00:46:45.840
under Chevron that's referred to as the Chevron donut hole,
723
00:46:45.880 --> 00:46:49.960
which is that when the Supreme Court decided lowber Bright,
724
00:46:51.400 --> 00:46:53.360
or rather, you know, Loberate. Right when the Supreme Court
725
00:46:53.400 --> 00:46:56.840
decided lober Bright, it said, it said, of course, you know,
726
00:46:56.880 --> 00:46:59.880
we're not overturning fifty years of cases decided on the
727
00:47:00.239 --> 00:47:03.239
of Chevron. We're just saying that moving forward, we're not
728
00:47:03.280 --> 00:47:08.119
going to defer to agency interpretations of law. So to
729
00:47:08.159 --> 00:47:11.639
that extent, you know, if the prior precedent is still
730
00:47:11.760 --> 00:47:16.360
valid under a decision like this, then courts will continue
731
00:47:16.519 --> 00:47:19.880
to behave as if these concepts created out of thin
732
00:47:19.960 --> 00:47:22.920
air by the CQ regulation are still I think that's right,
733
00:47:23.320 --> 00:47:26.280
and I will I will just I'll just conclude by
734
00:47:26.280 --> 00:47:31.800
saying that seems very clear whether or not in his opinion,
735
00:47:31.840 --> 00:47:36.320
could have been crisper and clear in some respects Justice Kavanaugh.
736
00:47:36.599 --> 00:47:40.079
Seems like Hugh was emphatic in attempting to convey to
737
00:47:40.119 --> 00:47:44.079
the lower courts that they have been making a real
738
00:47:44.159 --> 00:47:46.880
mess of things, turning this acorn into an out career,
739
00:47:46.920 --> 00:47:52.880
obstructing projects, obstructing any effort to develop things here in
740
00:47:52.920 --> 00:47:56.960
the United States, and that the courts basically the message,
741
00:47:57.320 --> 00:48:00.000
the big picture message is hey.
742
00:48:00.039 --> 00:48:01.679
Lower courts, you need to get out of the way.
743
00:48:04.039 --> 00:48:06.159
It seems that that is the message he is trying
744
00:48:06.199 --> 00:48:11.760
to send. And I think whether or not that ultimately
745
00:48:11.800 --> 00:48:14.360
bears fruits will depend on whether or not It's another
746
00:48:14.400 --> 00:48:17.599
twenty years before we get our next landmark need the case,
747
00:48:18.280 --> 00:48:21.800
so I guess on that we'll have to stay tuned.
748
00:48:23.480 --> 00:48:25.960
Well, I will chime in and just thank you both
749
00:48:26.000 --> 00:48:28.400
for joining us today. We really appreciate you taking the
750
00:48:28.400 --> 00:48:31.039
section of your afternoons and sharing your experiece and insight.
751
00:48:31.440 --> 00:48:34.119
Thanks also to our audience for joining and participating. Welcome
752
00:48:34.119 --> 00:48:37.039
listen their feedback by email at fedsoc forums a fedsoc
753
00:48:37.079 --> 00:48:39.400
dot org and as always, keep an eye on our
754
00:48:39.400 --> 00:48:42.719
website and your emails pronouncements about other upcoming virtual events.
755
00:48:42.960 --> 00:48:44.639
With that we can wrapple a couple of minutes early,
756
00:48:44.719 --> 00:48:46.840
give everyone back a section of their days.
757
00:48:46.599 --> 00:48:50.119
And be a journey. Thanks again, thank.
758
00:48:50.000 --> 00:48:52.400
You for listening to this episode of fed sock forms,
759
00:48:52.519 --> 00:48:55.639
a podcast of the Federal Societies Practice Groups. For more
760
00:48:55.679 --> 00:48:58.880
information about the Federal Society, the practice groups, and to
761
00:48:58.920 --> 00:49:01.800
become a Federal Society member, please visit our website at
762
00:49:01.840 --> 00:49:03.079
fedsoc dot org.
763
00:49:07.360 --> 00:49:07.800
Mm hmm