Michael Livermore 0:11
Welcome to the free range podcast. I’m your host, Mike Livermore. This episode is sponsored by the program on law communities in the environment at the University of Virginia School of Law. With me today is Lisa Heinzerling and environmental law professor at Georgetown and former Associate Administrator of the Environmental Protection Agency’s Office of Policy during the Obama administration. Hi, Lisa, thanks for joining me today.
Lisa Heinzerling 0:33
Hi, thanks for having me.
Michael Livermore 0:35
So as you will know, the Supreme Court has issued some very important and very controversial decisions in the last few years on a wide range of topics, at this point is probably to say that this will be one of the most consequential courts in US history. We just don’t know what the consequences are going to be yet. And, of course, environmental law is one of those areas that the courts been pretty active, in particular, to decisions, I think many folks would cite our West Virginia V EPA, which was, of course, the decision on EPA power to regulate greenhouse gases under the Clean Air Act, or at least one manifestation of that power. And also a separate case, second for EPA, which was on the Clean Water Act and jurisdictional issues related to that statute. And these are huge decisions that are going to have major consequences for us environmental law. And, of course, one of the things that’s very striking about them is they represent a very big shift from a not that far recent past, in particular, when Justice Kennedy was the swing vote on the court, and we got decisions on very similar, or very closely related topics, decisions like Massachusetts v EPA, on the Clean Air Act and greenhouse gas emissions and rapid nose, which of course, was very, very similar on to second on jurisdictional issues under the Clean Water Act. So maybe just to get us started with this conversation, we can we can think back to the to that happier time. You know, again, not that long ago, though, you know, somewhat getting on in years, you of course, played a huge role in the mess the EPA case. So that might be a good starting place. This, again, is obviously as you will know, the decision where the court finds that the Clean Air Act unambiguously grants EPA authority to regulate greenhouse gases. So so just to get us started in the lead up to that decision, and that when that case was being litigated, and in the years, in the years immediately prior to that, you know, what was the state of the law and politics of greenhouse gas regulation, regulation, as you as you recall it, right. This is like the early 2000s. And how did you see the massive EPA case kind of playing into the overall dynamic of the time.
Lisa Heinzerling 2:53
This, of course, was the administration of George W. Bush and the Bush administration came into office with an EPA that I think was prepared to move on climate change, actually, certainly the bulk of the agency, the civil servants, but even the head of the agency at the time, former New Jersey governor, Christine Todd Whitman had made pretty forceful statements about activities on climate change, and that all very quickly got pulled back. And, and among the biggest manifestations of that kind of reversal or change in direction was EPA decision to deny a petition filed by citizen groups bunch, a bunch of different kind of mostly little environmental groups that had in the 1990s actually first petitioned EPA to regulate greenhouse gases under the Clean Air Act. Now, one of the features of modern environmental law is that a lot of what happens that significant in federal environmental hat law happens as a consequence of citizens, either ordinary private citizens, or often public interest groups are represented environmental causes when it comes as a result of petitions to agency to do its job under the environmental statutes. And so these these these entities petitioned the agency and said, Please regulate greenhouse gases from automobiles under the Clean Air Act, we think you have the authority to do it. And indeed, we think that you know that greenhouse gases are endangering public health and welfare, which is the trigger for regulation under most of the Clean Air Act. So the Bush administration, if finally answered that petition and said no, no, it said we don’t have the authority to regulate greenhouse gases under the Clean Air Act. And we want it regulate even if we have the authority because we don’t think it’s a good idea. Yeah, policy wise and said some other things about why they just didn’t like the idea of doing regulation under the Clean Air Act. And so in other words, this was not an easy period, I would say this is in brief, obviously a brief treatment. But this was not an easy period for environmentalists, many environmentalists were horrified by the Environmental record of the Bush administration at the time, although, you know, I found myself during the Trump administration on occasion looking back with nostalgia at that administration, but so that the question then was what to do about that negative finding, because that was that was a decision that said, we’re not going to regulate greenhouse gases. That is we are not going to address climate change under the federal statute that makes the most sense for that purpose, given that greenhouse gases are, are airborne. And so so the petitioners challenge that decision and that made its way to the Supreme Court, and a decision in which is you suggested Mike, the Supreme Court made a five four decision with Justice Kennedy really providing the deciding vote, the court said, EPA, actually, you’re wrong. On each count, you have the authority to regulate under the Clean Air Act. And in fact, the definition of air pollutants under the Clean Air Act is so broad, that it clearly allows and indeed, in appropriate circumstances requires you to regulate greenhouse gases. And secondly, the courts that EPA couldn’t given that it had authority, it couldn’t say, oh, you know, even if we had authority, we wouldn’t regulate anyway, because we really don’t want to, we really have other ideas about what the appropriate policy is. And the court said, you really have to speak the language of the statute. And therefore, because the statute turns on harm to health, and to the public welfare, that is largely the environment, you need to speak, speak in those terms and tell us either that we’re not being endangered by greenhouse gases, or that we are and if we are, you need to regulate. So that’s, uh, that’s it? Oh, really quite enormous decision in terms of just the the breadth and the clarity of the ruling that gave EPA at the time, I think almost everybody thought it gave EPA the authority under the Clean Air Act, to regulate these pollutants that were warming the planet and to regulate them under all the different kinds of provisions of the Act, stationary sources, automobiles and so on down the line. So that’s the sort of moment we’re in we’re in a moment where a an administration that was not favorable to the environment last because it hadn’t been protected enough and lost in the Supreme Court.
Michael Livermore 7:54
Right, within, you know, a Supreme Court that did have was kind of on traditional and attritional understanding had a majority of conservative justices. Right.
Lisa Heinzerling 8:03
Absolutely. It was not a liberal court even then. Right.
Michael Livermore 8:08
One of the interesting features of mass VPA, which, you know, we’ll we’ll probably kind of return to this issue, as we kind of March our way through the last, you know, 1520 years, is his deference. Right, because, as you noted, you know, this was the setup of mass EPA was, was contesting what the agency wanted to do. Right. The agency was saying we don’t want to regulate here, our reasons, and it was, you know, public interest groups and ultimately states that were on the other side. And, and the majority opinion, which was holding kind of in favor of the environment, was not being deferential to the agency’s use, right. This was like the opinion was this is what statute says, right? It says, you know, that greenhouse gases are a pollutant. And, yeah, there’s some discretion and decisions that you have, but that discussion is gonna be pretty constrained by the text of the statute. And, of course, in dissent, Justice Scalia, who was, at least at certain times, a proponent of Chevron deference, he certainly fashioned himself that way, made a big deal about the issue of deference, and the, you know, the, you know, just the the fact that the court wasn’t, you know, that was kind of running against the agency’s discretion. And so, so that’s, that’s an interesting feature of this decision. And one of the questions I just have for you, you know, as we, you know, see, see how things have kind of proceeded. You know, obviously, there was an election and rock Obama was elected shortly after that decision came out. And so Obama was going to regulate greenhouse gases under the Clean Air Act, if if there was discretion, and certainly under massive EPA, so I wonder how important you think it was ultimately that the court decided on statutory grounds versus discretionary grants. And again, this is a bit of a fine point for non lawyers, but it’s going to come up later.
Lisa Heinzerling 9:54
Yeah, yeah. So and just to take one step backwards to bring everybody aboard, on Um, the the court has had long held that if a statute is clear, if the statute clearly, you know, sort of tells the agency what to do in a particular circumstance, then the agency can’t say, well, we want to do otherwise and then get deference for that position. The agency news needs to do what the statute clearly tells it to do. And so that’s the kind of the kind of one two process of so called Chevron deference was to look to see whether the statute was clear if so whatever the statute said, clearly had to govern. If the statute was ambiguous, then the agency got a great deal of deference in those days. And as you say, what’s so interesting about what the Conservatives did in dissent in Massachusetts is they embraced that Chevron principle wholeheartedly. Even though the EPA decision was momentous significance momentous in terms of the environment in terms of economics in terms of the greatest threat to the planet, in environmental terms, that the agency was saying, we’re not going to use the most sort of, obviously relevant statutory tool for regulating this enormous problem. So a hugely important decision. And it’s Justice Scalia scolds the majority for not deferring. And I think this is going to come up in just a few minutes when we talk about the more recent cases.
Michael Livermore 11:29
Right. So it’s just a super interesting, dynamic there. And then. And, you know, so of course, you served in the Obama administration. And, you know, when the aftermath of of massive EPA was was very much structuring the agency’s decision making and structuring people’s broader views about what the agency’s authority was. Yeah, one question I just have is, again, the majority could have voice, you know, the, the decision could have gotten some different ways, right. So obviously, the decision went the way it went, that the agency has the authority. And it’s actually not a question of deference like that. It’s just part of the statutes on ambiguous. Another way that the court could have gone and did not go very emphatically was to say, it’s unambiguous that the agency doesn’t have any authority, I could have reached that decision. And then obviously could have said, well, the agency has discretion, it’s decided that it doesn’t want to regulate now, but it could change his mind later. So just imagine that counterfactual where the you know, there was a kind of let’s just say Justice Kennedy decided to vote for the with the conservatives, but only on the discretionary grounds or something like that. Do you think that would have mattered much for the Obama administration? If they had understood? Okay, the court was clear, we have discretion, and we’re just going to change our minds. Versus we have a statutory obligation to essentially either regulate or explain why we’re not going to?
Lisa Heinzerling 12:54
I think that’s a very interesting question. I think, ultimately, the actions that the agency ended up taking over that at eight year period, I’m not sure they would have differed if the if the command or if the instruction from the Supreme Court was stated in terms of the agency’s discretion to figure out what to do, or stated in terms is that once you find endangerment of public health and welfare, you need to take action. I think what that that difference did and as you say, it is a kind of subtle one, but a really important one is what it did is it allowed the agency, maybe more in a way politically, but but to say, we have to do this, not only, you know, is this something we’re inclined to do anyway, President Obama campaigned in part on taking on climate change. But it also meant that the agency could say, we have to do this.
Michael Livermore 13:50
Right. Absolutely. You know, there’s another interesting counterfactuals since we’re playing, playing that game, historical counterfactuals, which is it may have mattered even more the kind of the way the decision was written if John McCain had become president, United States in 2008. Because he would have faced an enormous amount of pressure within his party to not act on climate change. But he obviously had been quite good on climate issues for a long part of his career. So that’s another kind of it back when the decision came out, no one knew how that election was going to play out.
Lisa Heinzerling 14:21
For sure. Yes, for sure. In the end, the the the idea that the statute speaks clearly and gives the agency instructions to do a particular job matters greatly, depending on which person is in office.
Michael Livermore 14:36
Right? Absolutely. Okay, so maybe the thing to do is to we’ll kind of follow through on the greenhouse gas track time and then we can go back and rewind and talk about the Clean Water Act. So So obviously, you know, if we fast forward on greenhouse gases, we have the Obama administration acting, you know, under this quite clear authority under Massachusetts v. EPA, is regulating greenhouse gas emissions from automobiles. It goes is on. And we don’t have to march through like every decision here. Of course, it’s just would be a lot. But it goes on to regulate greenhouse gas emissions under different statutory authority having to do with certain kinds of stationary sources. And then, of course, we have the really big initiative, the Clean Power Plan to regulate greenhouse gases of stationary sources under, you know, particular statutory provision. And so 111, I think we can go ahead and say it, we’re gonna have to right, so. So then, so that’s, so that’s that. So that so, you know, broadly like, and we can maybe return to the details if we if we want to, but it’s a big regulatory program. So how, let’s see, I’m just trying to think of the timeline, you know, the Clean Power Plan, at least was was initially happening, and maybe quite a bit of development. While you were at the agency? I would, I would think,
Lisa Heinzerling 15:53
yes, yes. The the very beginning of the section 111 rule that became the Clean Power Plan started to be developed. While I was at EPA, there were a suite of possibilities under the Clean Air Act for the EPA to take that on. And I think just about everybody agreed that an appropriate way to kind of stage those those different actions was to look at both the authorities of the agency, obviously, but also the amount of good that could be done through Google. And power plants, of course, are one of the largest sources of greenhouse gasses, and specifically coal fired power plants. And so the agency started to try to develop what is it that we can do with respect to power plants under Section One of the level in the Clean Air Act, which gives EPA the responsibility to regulate stationary sources, again, that that the categories of stationary sources like power plants that endanger public health and welfare, and it tells EPA to set emission limits based on the best system of emissions reduction. And then what is supposed to happen under that section four, with respect to existing sources, like existing power plants, is there’s the states are supposed to actually make sure that those emission limits are met. And so the EPA started developing that rule early on.
Michael Livermore 17:39
Right? Okay, good. And of course, it’s not like the agency snaps his fingers. And suddenly there’s a rule, there’s a huge process. And this was it was very complicated, obviously. You know, there was also legislative action happening at the, you know, during the early portion of the Obama administration, there was some hope that there was going to be, you know, major, potentially sweeping climate legislation agency, obviously, was involved, helping to provide counsel on that. So there was a lot going on in those in those early years during the development of the Clean Power Plan, but eventually, well, there was an election in 2012, the Clean Power Plan comes out. And, of course, there was this very bonkers litigation history, were very unusually, the there was a motion to stay the Clean Power Plan, which is typically not granted on major public health, public welfare types of regulations, because the idea being like, it’s important that we get this stuff on the books, but we litigate it to stay was denied by the DC Circuit, as, of course, you know, all this very well, but just to recount it. And the Supreme Court, takes up on cert, the denial of the stay and, and then grants the state. So the so the regulation does not go in place during the kind of ending of the Obama administration. And of course, there was a 2016 election, and Donald Trump takes over so. So, you know, we just a couple of minutes ago, we were speculating about how the McCain administration would have potentially dealt with Massachusetts v. EPA being kind of rule of law oriented, perhaps one would hope have hoped that they would have been, and having a president who was fairly sympathetic to climate issues. The Trump administration was different. And so, I mean, how much do you think again, just thinking back to a mass V. Pa, like, how would you think it mattered? That you know that this was on statutory that decision was on statutory versus discretionary grounds. When it came time for the Trump administration to decide how they were going to respond to the to the Clean Power Plan to the reality that the agency was very far along on regulating greenhouse gas emissions from power plants. We should also note there were regular just to reiterate, there were all other greenhouse gas regulations on the books already having to do with stationary sources. isn’t having to do with some other programs as well?
Lisa Heinzerling 20:02
Yeah, well, I think that one important intervening event should be noted, which is that the Supreme Court had in in the in the years between had struck down an EPS application of permitting requirement to power plants that emitted are to lots of sources that that emitted greenhouse gases. And the Supreme Court effectively this is my reading. I’m not sure it’s everybody’s reading. But my reading of the case is that what the Supreme Court effectively did was to say, you can’t say that air pollutant in the statute, which is the trigger for just about all regulation, having an air pollutant and having one that endangers public health and welfare, you can’t say that every air pollutant includes every mention of air pollutants includes greenhouse gases, you have to look at the context of the program. And in this case, EPA is rule threatened to usher in permitting for lots and lots of sources that hadn’t been in the program. And so the court rejected that rule. And so that that distinction that you rightly emphasized between statutory authority and discretion, had kind of because of the Supreme Court had become less pronounced, because other than the cars program, which was the subject of Massachusetts, I think we’re already on track to have to prove in every case that a particular program was appropriate for regulation. So by the time the Trump administration came in, they’d already had their, their kind of deregulatory agenda, the the way, the path for that softened a little bit by the Supreme Court.
Michael Livermore 21:51
Right. Yeah. That’s very interesting. That’s that’s a good point. And also, it’s interesting, because that’s that was, you know, essentially the same court that decided mass v. EPA also decided that case you are,
Lisa Heinzerling 22:01
which is so important. So mind boggling if I may say so. Because they’re they said we’re not going to defer because this is a huge question whether to one of the things they said almost in passing is this is a really big question to whether to subject these sources to this permitting program for the first time. And so and so we were not going to defer and in fact started almost said Congress needs to speak more, more clearly effectively said that. So just kind of that to Massachusetts versus EPA, what’s the difference? Massachusetts versus EPA involved an even more enormous decision by the agents who we’re not going to regulate at all under the Clean Air Act. And the conservative justices said, defer, defer the agency nothing about the importance. This other case comes along utility air regulatory group comes along. And the conservative justices say, we’re not going to defer because of this. This question, which is much smaller than the one in Massachusetts versus EPA is so big. And the only difference between those two situations, as far as I can tell, is that in one case, the agency wanted to take on climate change in the other case, it didn’t.
Michael Livermore 23:15
Right, exactly. I mean, to be honest, that’s that is also how I take redact case. But just we should just note for the for the listener, Justice Scalia wrote both of us. He wrote the dissent. And he wrote, so this is like the justices which right, and it’s super interesting. And like, yeah, this huge, was supposedly hugely consequential question in the in the UARK. Decision, ultimately, you know, as you know, for reasons that are really complicated and probably not worth getting into, what ends up happening as a consequence of the court like overturning the agency’s decision is, the agencies could still do the permitting requirement for almost everybody that was initially covered in the in their version of the rule. So something that was supposedly hugely consequential actually turned out to be like a rounding error and what the agency wanted to do, right? Yes. Really something else? So okay, so So the Trump administration, obviously, they go through their efforts to unroll the the Clean Power Plan or wind back the Clean Power Plan. And one of the things that I think is probably under appreciated, or I think it would, it would be good if more folks kind of emphasize this is they didn’t try to rollback the endangerment finding, right. They weren’t trying to say there’s no such thing as climate change. I mean, they might have acted like there was no such thing as climate change. But they weren’t saying that, which I always thought was a kind of an important and big deal.
Lisa Heinzerling 24:33
Yeah, I agree. And notice that the Bush administration didn’t say that either. They didn’t say it’s not happening. And he said, there’s uncertainty and we just don’t have the authority and we don’t want to regulate.
Michael Livermore 24:44
Right, right. So the science even, you know, when when it’s serious, and the decisions are going to be reviewed. You know, the agency recognizes that. It just It would be ridiculous for it to deny the basic facts. So so so so then, you know, this is going to bring us to the to the to the most recent decision, the Trump administration passes its own, or adopts its own version of regulation under 111, that essentially kind of gets rid of the whole program as it was envisioned in the Clean Power Plan. And ultimately, that leads to litigation, unsurprisingly, and that litigation finds its way to the Supreme Court. And the decision in West Virginia, if EPA so, so again, you know, this was much more recently, you know, in comparison, can you are, you know, closely involved in both of these, both these cases? And just, you know, following all of this very closely at both times, how would you compare the political again, the kind of the political, the legislative, the broader dynamic around greenhouse gas regulation in the lead up to West Virginia VPA, compared to in the lead up to Massachusetts for EPA?
Lisa Heinzerling 25:58
Well, I think that the environment included a couple of important features, which is one we had President Donald Trump, who is even, I think, more hostile to environmental regulation than President Bush had been, and was also less, less meticulous, let’s just say about the law. And so that I think there was a much more, it feels like, to me anyway, scattershot kind of approach to deregulate, and it certainly this implied broadly where the environment was concerned.
Michael Livermore 26:34
Yeah, so that’s, so that’s why the Bush administration was much smarter, I’ll just go ahead and says much smarter, and how they deal with these things, which is why the Trump administration lost all the time, it was very ineffective.
Lisa Heinzerling 26:44
The other context, that is obviously of crucial importance is the supreme court changed, right, between these decisions. And so there were three judges, justices appointed by Donald Trump. Kennedy was long gone, and and there’s now such a solid six to three very conservative majority.
Michael Livermore 27:07
Right? It really, really is, it really changes the dynamic. So So there, of course, the decision had to do with the agency’s authority to regulate under the language that you mentioned earlier, what constitutes a best system of emissions reduction, and whether the, essentially the Obama era interpretation was overly broad. And so the courts gonna approach this question, discretion is going to be a big part of how it’s the lens through which is going to answer this question. So So yeah, so what do you think the big takeaways ultimately were from from West Virginia v. EPA?
Lisa Heinzerling 27:40
Well, I think what the court ended up doing is to avoid the kind of intricate statutory questions that we had been accustomed to and and avoided any nod toward the agency because of its expertise and its mild amount of political accountability, and instead, just created a quite powerful presumption against ambitious regulation. And that, of course, is the major questions doctrine, it really hadn’t solidified either the existence or the certainly the meaning of that doctrine until West Virginia. I mean, there were earlier cases, but this case really crystallized that as a as a doctrine. And so if you think about it, what that does is it just, it just puts the thumb on the scales against against environmental regulation, which takes us very far away from Massachusetts versus EPA, where whatever he thought of the Clean Air Act and climate change, Justice Kennedy was willing to say, I think the statute is clear, right, in regulating greenhouse gasses. But now the court has created a real kind of, as I say, presumption against ambitious regulation.
Michael Livermore 28:59
Yeah. And there’s a just as kind of reiterate a point we were talking about earlier is I’m just curious what you kind of how you read this. So so the major question jock doctrine, right. And broad outline says, you know, I guess even when there’s ambiguity in the statute, we’re not going to read that as giving agencies discretion, we’re not going to defer to agencies on these decisions when they are very, very, very consequential when they’re very important when they are major questions, we’re going to assume that Congress wouldn’t want to have essentially delegated that decision to the agency. Okay, so as we were saying, with Massachusetts, EPA, that was a very important decision that the agency was making was deciding not to regulate it when it when it turned when it rejected the petition to regulate greenhouse gases under the Clean Air Act that was extraordinarily consequential. And Justice Scalia, writing for the conservative dissent, you know, makes a big deal about how the court should be deferring to the agency. And in, in this case, So in West Virginia v. EPA, the court, of course, makes a big deal out of how big of a decision this is. But but it’s not any bigger of a decision and the decision that was under under review and Massachusetts v. EPA, it’s just that the decision came out the other way, right? We’re in mass v. EPA, the agency had decided not to regulate, whereas in West Virginia, EPA, the issue that was being litigated was the form of agency’s regulation. So So do you think there’s embedded within, at least as it’s been announced, and applied by this court, like an actual anti regulatory component of the majors? Questions, questions doctrine, because you can imagine a neutral version, which is, if it’s important, we’re not going to different, we could query the wisdom of that kind of doctrine. But that would be one form of the doctrine.
Lisa Heinzerling 30:45
Yeah. Yeah. A couple of things. I do think there is that it’s, it’s impossible to read those cases, without thinking, hmm. Why did these cases come up differently? The only difference I can see is that in one case, the agency got the answer wrong, which is an enacted and ambitious regulatory program. In another it got the answer, right, which is either did something it did nothing or did something very weak. And, and that’s, that is it’s they don’t say it. But that’s the gist. All you do have to do is read the cases, to see that point. And it meant West Virginia itself illustrates this point. Beautifully, even though it’s subtle to see, strangely enough, but in that case, because the court, I won’t even get into justiciability. If it’s too much, it’s too much. But let’s just say that, through a strange series of legal sort of maneuvers, the Supreme Court basically had in front of it, both the Clean Power Plan, and the the Trump replacement for that plan, which was very, very weak, in fact, might have done nothing at all, literally, literally nothing. And, and at the end of the day, the Supreme Court rejected the Clean Power Plan and approved the ACE rule. It takes looking through the judgment sheets and all this, but that that is a fact. So in the very same case, with the very same question present, which is, does the Clean Air Act allow the agency to enact a program that shifts generation from some kinds of sources to others? In each case, the Trump rule the Obama rule, they are answering the same legal question with basically the same administrative record that is the same facts in front of them. In one case, they answered yes. And another case no. In the case where they answered no, the Supreme Court without even elaborating without commenting on it silently blesses that place where they say no, so it’s really this is why I’ve suggested that it shouldn’t be called the major questions doctrine should be called the major answers doctrine. It depends entirely on the answer, the agency gets.
Michael Livermore 33:05
Very interesting. So so just to poke on that a little bit, and exactly what we mean by that. I can actually imagine two different versions one a little bit more principled than the others curious which one you think is happening here? So the give them more principled version first, which would be like a libertarian major questions doctrine, something that was like, where there’s a major exercise, of course of government authority over the economy and over people’s decision making, we’re going to be skeptical that Congress intended to grant the agency that broad discretion to make those decisions. And so we’re going to quit, that’s gonna be major question we’re not going to defer. So it’d be the more principal version, the less principal version would be whenever an agency decides something we don’t like the answer, either pro or con like, because, of course, the conservative justices are not always libertarian in their orientation, they have some very non libertarian elements. Certainly, that’s true within the Republican coalition broadly. And so it’s not really about whether it’s the imposition of government authority or not. It’s just whether it lines up with the preferences of the justices at the time. So yeah, I’m curious which one of these or maybe it’s too early to tell which one of these versions you think more accurately reflects what’s going on?
Lisa Heinzerling 34:18
If I may, I actually think those are the same thing. Given the Justice’s prior beliefs, I think they may well be inclined to doubt government authority, right? Maybe it’s libertarian, but it’s the same thing as not liking a particular outcome. So I guess I guess I’d push back a little bit thinking that one is more principled than the other when they aligned perfectly. The deregulatory perspective. Maybe you could call it libertarian, but it aligns perfectly with the deregulatory agenda of the Republican Party.
Michael Livermore 34:54
I guess. Yeah, that I think that’s fair in broadly what I’m thinking of is like There are certain areas where liberals are more deregulatory than conservatives think immigration or policing or other other domains. So I’m just trying to think outside of the environmental context, where, you know, the deregulatory kind of pro protection thing lines pretty lines up pretty well with partisan preferences or partisan political programs. I think there are other areas where the Republican Party is actually more pro government than they are Pro and Pro government power than the Democratic Party. So yeah, and again, this is yeah,
Lisa Heinzerling 35:36
yeah. So we’ll have to see how that because this has been asserted in all sorts of cases. So you’re right, that we haven’t seen. I mean, we haven’t seen exactly the full sort of lost some of the doctrine, also say if I may also say, I just think that government decisions not to act on climate change are actually pretty darn coarse.
Michael Livermore 36:02
Oh, absolutely. I think this is right. Just to be clear. This is what the very particular version of No, I don’t I get what constitutes and like the difference between action and an act and inaction and right. From from a broad well being perspective, failing to act can be very extraordinarily serious consequences. Yeah.
Lisa Heinzerling 36:24
Especially against the backdrop of lots of actions promoting the use production of fossil fuels.
Michael Livermore 36:31
Absolutely. Exactly. So okay, great. So that’s where we are. Okay. So that’s where we are with, with West Virginia case. And this is all been in a way just to kind of encapsulate really big changes on the court and how the court views questions around things like, you know, broadly deferring to agency judgment, but really, specifically, environmental, environmental law. And, you know, we’re talking about greenhouse gas emissions kind of specifically, but just an enormous space between mass v. EPA, and West Virginia VA in a relatively short amount of time that did you. I mean, this unfolded slowly, we’ve had a little bit of time to to, you know, kind of cognitively deal with it. But it when you compare those two decisions in your mind, yeah, what do you what do you make of how the country’s been going for the last, you know, nearly 20 years or so 15 to 20 years? And where the where the court? Where the court has gone? Like, what’s what’s your general kind of sense of of your takeaway there?
Lisa Heinzerling 37:39
Oh, I am, I’m not happy about it. And what I feel my take away is, to some extent, that there’s this feeling of a failing, so six conservative justices who are really have the bitten their teeth, if you if you want to prove that we really are running with their power. And, and so it becomes quite difficult to look around, especially with something so all purposes, the major questions doctrine that can be used in any kind of a case. And with lower court judges that are more than eager to knock down programs that can be honestly a little dispiriting, given the nature of the problem at hand. And the current tenor of the courts. It’s the road that we’ve traveled is is, I think, pretty, pretty sobering.
Michael Livermore 38:34
Yeah, it is. I mean, I yeah, I tend to agree. Okay, so let’s talk about just another lens on this. That’s actually very different legally in a lot of important respects. But it kind of tells a similar sobering story over over the very similar timeframe. So here, we’re talking about essentially the jurisdiction of the Clean Water Act, in particular, that program that protects wetlands. And there was another kind of statute since there’s some statutory language here, that has been interpreted over really over a long period of time, several decades, really, as long as the Clean Water Act has been around. And it had been controversial the the, the interpretation of this particular provision, we’ll get into it in a second. But the the contrast that we have here is between a decision where Justice Kennedy was, again, the swing vote, this decision rapid Noce, which, you know, kind of allowed for quite broad jurisdiction under the Clean Water Act, wetlands program. And then we’re going to kind of move through to the recent decision and Saket, which was really a huge change. So So when so rapid nose wasn’t that long before you joined the agency either, and I assume the agency was dealing with that as well. So maybe we could just explain quickly what what that decision was about and then and then maybe, you know, how, when, during your time during the Obama administration, how folks were working Talking about that decision.
Lisa Heinzerling 40:01
Yeah. So the Robin was decision on 2006 was a question about how far the Clean Water Act reaches. It’s a really basic question under the statute, what is what are the waters covered by the Clean Water Act? If you’re not a water covered by the Clean Water Act, then the Clean Water Act doesn’t protect you. Right. And so the statute refers to Waters says that it covers navigable waters defined as waters in the United States. And so the court in rapidness was was grappling with the question, how do we think about wetlands under this under this statute, and just to be to be brief about it, the court split badly, just badly for one for four justices led by Justice Scalia would have taken a narrow view of the statute for justices led by Justice Stevens would have taken would have differed to the agency’s broader view under the statute, and Justice Kennedy sat in the middle, really controlling the outcome. And he took what at this point seems like a quaint opinion, sort of position for the Supreme Court, he thought that it mattered whether there that the ecology of it mattered. In other words, he thought that waters wetlands that had a significant nexus to more sort of traditionally navigable waters with rivers and lakes, for example, that they had a significant ecological connection, those were covered. A nexus is what he called it. And so he controlled that, that decision in the way that we sort of treat these things, there was, I think, pretty good argument that the lower courts, and that agency should look to his position for the kind of authoritative view of the court, right, even though there wasn’t a traditionally authoritative view.
Michael Livermore 41:56
Right. Great. So and So everyone’s like, looking to this. It is kind of odd, right? There was no, you know, really, in a way, the decision left the lower court in place. And so it was probably the Justice Stevens opinion that maybe, but in any case, everyone’s looking to Kennedy, and you have the significant Nexus language, which is evocative, and you’re right, it absolutely has this connection to the physical world is so much seem quaint. And but you know, we are talking about environmental law at the same time. And so so yeah. So how was the Obama administration then kind of grappling with how to deal with because again, it’s very complicated. We, it’s good to know what the jurisdiction of the act is, right? People want to know, and the field offices want to know, when they’re writing permits, and landowners have a interest in having some clarity about what is or is not covered?
Lisa Heinzerling 42:48
Absolutely. So at the time, just like what do we do? What do we do? There had been an interim decision, I think, from the Bush administration, the question is, what could the Obama administration do? There’s a big question, a procedural question, can they just do so called guidance? Can they just tell their field offices? Here’s what we want you to look for, when you’re inspecting a property to see whether there’s wetland here are the things you should look for? Or do we need to do a rule in which case there’s a big process the public comments, you have to explain yourself and on down the line? So there’s that initial question. And then the question, what does this decision mean, right. And the Supreme Court had been silent was silent until the Sackett case that we’re about to talk about, about exactly what it meant. And it’s for one for confusion. And so the agency was just trying to grapple with that figure out how to do it procedurally, and then what to say about the wetlands that were covered, given the massive split in the court.
Michael Livermore 43:46
All right, exactly. It’s, it’s a really, it’s a really hard thing for the for the agency. And of course, you know, some folks, perhaps you don’t follow this, you know, very, very closely, you know, it can be hard to sympathize with the agency, or people don’t kind of realize, like the agency is often just in an incredibly difficult position of having to make these difficult decisions. So not getting a lot of guidance from the courts. And there’s just, you know, there’s another really, as you well know, this is very hard problem, which is, the agency has to commit an enormous amount of resources to rulemaking and to collecting comments and processing the comments and working with stakeholders and thinking through things and bringing in the engineers and bringing in the lawyers and he has a huge commitment of resources, and then you like hope and cross your fingers when eventually goes out the door and gets litigated, that that you know, 567, you know, or longer years of effort is going to just not get totally dinged by the court. It’s really quite a it’s a very difficult position that agencies are in often.
Lisa Heinzerling 44:45
Absolutely, absolutely. It takes years, a huge amount of effort, a huge number of resources. It’s the most deliberative process. I’m just going to say it in the United States. goes through so much vetting so many different people have eyes on those Rules. It’s the only agency in GM are the only institution in government, the administrative agency that needs to explain itself and reason terms, when it makes a big decision, the only. And so at the end of the day, when you have a rule, it at least should get a nod, at least it is a significant sort of achievement in a way, that certainly significant decision. And if the agency is afraid that at the end of the day, either the Supreme Court or some district court judge, let’s say, Texas, Louisiana is gonna look at it, sort of eyeball the problem and say, That looks big to me, and strike it down. What does that do to the agency’s mission to its ability to do its job, even the morale among the staff, which I’m sure lots of people don’t really care about, but you should, actually you should. And so that is the disjunction between the incredibly deliberative laborious process of issuing rules and the very back of the envelope quick look, process, so called of the major questions doctrine is just painful.
Michael Livermore 46:12
Yeah, it really isn’t. It’s not like you could check either, you know, it’s like at the beginning of the process, you could say, hey, Cor, you know, is this a major question? Yeah, yeah, exactly. Yeah. Okay, so So the agency issues goes down the rulemaking path, right issues, the waters of the United States rule, you know, that gets litigated. The litigation history of this is even more complicated, Clean Power Plan. There’s it, there’s injunctions, there’s, you know, different appeals courts doing different things. There’s, it goes up to the Supreme Court on various kind of like technical jurisdictional type things. Eventually, any case. The Trump administration comes into power, they issue their own version, all of this gets litigated, gets up to the Supreme Court, and we have the second decision. So we’re essentially revisiting rapid dose I mean, through the second decision was, I mean, is it was there any notable differences that are worth mentioning? Or is it literally just like, hey, let’s get another look at this essentially exactly the same question.
Lisa Heinzerling 47:11
Well, I don’t know if you have anything in mind, but it does strike. It’s the same question. It’s the same question with a very different answer, which is significant Nexus. No, thank you. No, Justice stood up for it. nine justices, right. Rejected significant Nexus. So that is, that is quite stunning. After a period in which that had, as I said, you know, good argument was that that should be should have been the reigning principle. Everybody rejects it.
Michael Livermore 47:41
Right. And so we have a opinion written by Justice Alito, in this case. And, and so what are the so the so as you note, the question, one way I kind of think about this is, you know, there’s a sliding scale, in some sense between water bodies that everybody recognizes are in the jurisdiction of the of the Clean Water Act, and when no one is trying to deny this. And that would be your, you know, is take up a river or lake or something like that. It’s clearly in, and then, you know, you can slide it down to them. And the reality is, water is all interconnected. It’s really we live in a big hydrological system. And so if you’re going to have limits, you know, there could be, you know, it could go very, very far indeed, and to a very small, you know, saturated land or something like that, let’s just say, and then we’re going to draw a line somewhere on where the jurisdiction is going to be. And the significant Nexus, as you noted, is kind of draws on some ecological concepts. And it’s really about like, how substantial is the degree of connection between the wetland in this in this picture and some traditional jurisdictional water body? And so what do and so that’s the significant Nexus and the Obama administration put out the waters, the US rule, which kind of clarified what was in and what was out, there’s all kinds of complicated questions around like seasonally inundated lands, stuff that dries up and so on and so forth. And so there’s all this kind of rulemaking to try to clarify that. And, yes, and then the Trump administration does its own version, dialing that way, way, way, way back. And what is the Supreme Court ultimately decided that they’re interpreting the statute. So they’re saying what the statute ultimately says, and what is what is, what do we get in the second decision?
Lisa Heinzerling 49:20
Well, one, we get the idea that what is the United States, those waters that are that are to be protected under the statute? Are? And I’m quoting here, because it’s so striking relatively permanent bodies of water connected to traditional interstate navigable waters. So in a traditional navigable waters, so there’s a question like, like it, whether it’s navigable has nothing to do whether it’s ecologically significant, nothing to do with that. And note, again, you could say this, the Congress itself threw away navigable when it said the waters So our that we’re talking about are navigable, but we’re going to define them as waters, the United States, which is much, much broader. So they say those are the water bodies of water to be to be protected, but then said, if you have a wetland, it has to be have continuous surface connection to those kinds of waters. So it strikes me and tell me if you think this is unfair, but it just seems like a very cartoonish view, about waters in aged states. It’s like, it’s like the kind of thing that children’s books would show us where rivers and lakes, you know, that we can tell where they end and where they begin, we can tell whether a tributary, right is a river, what is it? Is it a river? Is it what what is it? And, and so the idea that we can just kind of, again, kind of eyeball it is just massively ignorant to me. And also, just to get back to your theme about how far we’ve come in just a few short years. Again, Justice Kennedy’s approach, at least had some ecological connection, he was sensitive to the purpose of the Clean Water Act, which is to keep the waters clean. That’s not true of the Supreme Court.
Michael Livermore 51:27
Yeah, yeah. No, it’s really it really is striking. And so so there’s, and we could get into the quality or lack thereof of the of the legal reasoning that drives the court’s decision. But I think it’s worth pausing and reflecting on, what does this do to the in the real world? Right. So what is what are the consequences of the degree to which the Court has dialed back on the agencies or statutes? I should say this, you know, the what the statute has, you know, claims jurisdiction over like, what is that kind of mean, on the ground for, in particular, we have this very important, very substantial wetlands program that, you know, agencies of both political parties have been in ministering, you know, for decades now. So what is the what is the on the ground significance of this decision?
Lisa Heinzerling 52:12
Yeah, I think, I think we, you know, it’s remains to be seen exactly what it is. But it strikes me, as far as I’ve read, it eliminates a significant portion of the PAs jurisdiction, or at least that’s the, the idea going, you know, in the immediate aftermath of the case, I don’t remember what the number is, or maybe you have them, but they’re, they’re sort of appallingly large, the acreage that seems to be eliminated by the courts approach,
Michael Livermore 52:44
right? And of course, we don’t want to make too dire predictions in a sense, because it could always work out to be a slightly better and we don’t want to argue in favor that there’s only one interpretation of this decision. So we have to be a little circumspect.
Lisa Heinzerling 52:54
Yeah, for sure. That that’s always I think, though delicate balance, right?
Michael Livermore 52:58
Right, because you want to be realistic about what it actually accomplishes, too. And, and I think, just to be again, just super clear, what this means is that, you know, wetlands, everyone agrees are wetlands, that would have been, there would have been a regulatory regime that governs them, that tells you what kinds of activities you can and can’t undertake on these wetlands, which have the purpose of essentially preserving these ecologically important areas are just going to not be regulated, at least at the federal level. So one argument that, you know, folks might think of at this moment would be well, okay, does that mean they’re entirely unregulated? Or can states kind of play a role? Is there some other actor out there that could be engaged in this in this, you know, in, in protecting wetlands, that maybe should give us at least some comfort that there will be someone stepping into the regulatory void?
Lisa Heinzerling 53:52
Yeah, I think states could could step up, I think some states and attend has to step up. But they don’t have to. And the very weird thing to me, one of the weird things about this decision to me is that the Clean Water Act of 1972, which is a basic statute we’re talking about, was written in a self conscious rejection of the state by state approach, right? It was written because it had been in the words of Senator muskie, a failure in every respect. And so the idea that the Supreme Court comes today and cites the preservation of state autonomy as a reason to cut way back on the authority of EPA to protect waters is just deeply problematic, in my opinion, because the Clean Water Act was itself a really, really powerful rejection of that of that kind of approach.
Michael Livermore 54:49
Yeah, so Okay, so now that we’ve got these, these two different timelines coming to fruition when on the, you know, basically dealing with certainly to have If not the two most important environmental statutes, obviously the I don’t want to imply that the Endangered Species Act is an important, right, or NEPA or whatever else, but two very important, two very important statutes, and really huge changes very fundamental. And in the case of the Clean Water Act, we’re talking about the jurisdiction over a huge, you know, huge program. And, and the and the Clean Air Act question is whether the agency can address you know, or how it functionally can address one of the, or if not the single most important environmental issue facing the world. Okay, so that’s, that’s where we’re at. And I guess the question is, what is this kind of mean, going forward? I mean, obviously, the court has become the crypto has been, at least for as long as I’ve been paying attention, quite a controversial institution. Arguably, it is at its most controversial that it’s ever been, or certainly, for many, many, many years. Public opinion of the court is quite dis favorable. But we still have the six three majority, and it doesn’t look like that’s going to change anytime soon. Or, and if it does, it will just go to a five, four majority, there’s it could be a very long time that we’re dealing with some version of this court decades, potentially. And so I guess the question is, what does that mean? What does that mean for executive action? What does it mean for environmental groups as they’re strategizing for folks at the agency is they’re considering what to do? You know, even thinking about Congress, like, what is the how do you how do you feel about the strategic situation? And, and what what are your thoughts about, you know, what it means for the next potentially couple of decades?
Lisa Heinzerling 56:45
Well, I I’ll be honest, I really do worry. I know that it’s sometimes that this portion of the show, it’s very good to have a hopeful idea. But in in this moment, we don’t know what the future holds. Things could change tomorrow, but in this moment, it doesn’t look, it doesn’t look good. Nevertheless, I’ll say this, that that there are people out there just hitting everything they have, right, getting getting out there with arguments and lawsuits and petitions with everything that they have. And and so that it seems to me that at some point that that kind of wall has to break. And but that’s that may be sort of the triumph of hope over experience.
Michael Livermore 57:35
Yeah, I mean, there is a I mean, nothing lasts forever, as you as you said, and 20 years is a long time, but it’s not forever, of course. And and things can change. It’s it is it is very interesting, but it is hard to see what that what that path looks like. I mean, folks are focusing on the states. But the courts seem like let’s just say this, the courts seem like a place that we have to deal with, rather than a place that we could look to for kind of for help, in some sense.
Lisa Heinzerling 58:06
Yeah, that’s what that that is what it feels like. And I guess that’s a good place to be coming to a conclusion in the sense that that also illustrates the long road we’ve traveled. Right? Since since before, when with in Massachusetts versus EPA, we actually look to the court to rescue us from a bad government decision.
Michael Livermore 58:29
Right. And that seems much less on the agenda these days. I think so. Yeah. Well, it’s a bit of a downer of a note but, but that’s just where we find ourselves. Right? And we just need to be honest about that. So I appreciate you taking the time. Lisa, it’s been a super interesting if somewhat dispiriting conversation. And you know, thanks for all of your great scholarship and all the great work that you’ve done in the in the public interest over the years. Thanks for having me. And listeners. If you enjoyed this episode, let us know you can give us a like a rating subscribe to the podcast and follow us on social media. It’d be great to hear from you till next time
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