Future Environmental Law | Part 2 | Law & Nature S1E2

Name: Future Environmental Law | Part 2 | Law & Nature S1E2 | EarthX
Uploaded: 2025-04-01T21:00:12+00:00
Duration: 1 h 9 min 35 s
Channel: EarthX Media

EarthX Media

4/1/2025

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A post-election discussion of the prospects for environmental law and the environment.

About Law & Nature:
Discussions of Environmental Law & Policy developed by the EarthxLaw Advisory Council

Law & Nature promises lively discussions by environmental thought leaders on legal and policy issues of critical importance to environmental protection. This series is developed by the EarthxLaw Advisory Council, a blue ribbon board of prominent environmental law practitioners brought together by EarthX to assist in developing programs and facilitating dialog on environmental law and policy.

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00:00:00Hi, this is Jeff Simmons. I'm senior counsel at Ames & Boone and an adjunct professor at the University of Texas School of Law.

00:00:08I've been privileged to work with Trammell Crowe and her vets in assembling a Blue Ribbon Advisory Council of Environmental Law Practitioners

00:00:17to develop, among other things, a series of TV programs riffing on law and order and law and nature, which we've labeled law and nature.

00:00:28We were heartened by the response to our first program, which is now available on demand.

00:00:33That program presented a dive into what the election portends for the future of environmental law.

00:00:39Although that program remains topical and is worth seeing, we thought that now that we've had an election,

00:00:45it makes sense to have a follow-up program focused on what the Biden administration in particular portends for the future of environmental law.

00:00:54And to bring back our three panelists, joined by another distinguished panelist, who was not available to us before.

00:01:01It's my privilege to again introduce our moderator, John Cruden, partner in the law firm of Edwards & Diamond.

00:01:09Among other things, John was former Assistant Attorney General of the Department of Justice,

00:01:15responsible for some of the highest level, highest profile environmental cases that the department handled,

00:01:22including Exxon Valdez, Love Canal, Deepwater Horizon, and the Volkswagen Emissions Scam.

00:01:29As I mentioned then, John's accomplishments and awards were too numerous to mention.

00:01:34But since that program, John was awarded the American Bar Association Section of Environment, Energy, and Resources,

00:01:43its Lifetime Achievement Award in Environmental Law and Policy.

00:01:49And John is only one of three folks to receive this award.

00:01:52It's my great pleasure to again introduce my friend and one of the giants in our field,

00:01:57John Cruden, who will in turn introduce our other distinguished panelists.

00:02:01Take it away, John.

00:02:03Yeah, thank you for that kind invitation.

00:02:05And on behalf of all of us, to EarthX viewers and to Trammell Crowe and Bruce Fogarty, who put all this together,

00:02:14we thank you for once again listening to us.

00:02:20As Jeff said, we spoke to you before the election about issues that we thought were important in environmental law and policy.

00:02:27And now we're going to focus on what has happened since that election and what that means for our future.

00:02:37The panelists here are just extraordinary.

00:02:40These are the best that we could draw from.

00:02:44Dan Esty is a professor of law at Yale Law School, but he's also the former director of the Connecticut Department of Energy and the Environment.

00:02:52And some of you heard of him speak before at EarthX because he's the author of the book, A Better Planet, 40 Big Ideas for a Sustainable Future.

00:03:05Scott Fulton, who's speaking to us from Rome, Italy, is the president of one of the leading NGOs in the United States, the Environmental Law Institute.

00:03:14But he's also the former general counsel of the Environmental Protection Agency and a former leader at Department of Justice.

00:03:21And then Seth Jaffe, who's a partner in Boston at Foley Hoag.

00:03:25But Seth is also a leading author.

00:03:28He puts out the Law and Environment blog, and he's the past president of the American College of Environmental Lawyers.

00:03:35So as you can see, we have drawn an extraordinary group with various expertise.

00:03:41We want you to be thinking like you are in our living room.

00:03:45And we're going to give you and talk with you as family members about current issues and what that would mean for the future.

00:03:55We all understand we are in extraordinary time.

00:03:58We just completed an amazing election with the highest vote count ever, with the highest number of mail-in votes ever.

00:04:08The first woman elected as a vice president.

00:04:12But at the same time that's happening, the coronavirus continues.

00:04:17The numbers of new sicknesses now sometimes over 100,000 a day.

00:04:23And on behalf of all panel members, every one of you who have had family members or friends ill or passed away, our heart goes out to you.

00:04:33We've heard better news about a possibility of a vaccine.

00:04:38And the Biden administration has already indicated that that's their highest priority and had a task force.

00:04:46And so we know that these are really, really, really difficult times for everyone.

00:04:53But we want to focus on the future.

00:04:56The future is what the Constitution has provided us, this extraordinary process where we go from an election in November, in this case, to a new administration in January.

00:05:06And what happens in between?

00:05:08What happens in that time period?

00:05:10That's the transition period.

00:05:12And then when it finally does happen, what goes on with Congress?

00:05:15What goes on with courts?

00:05:17What does all that mean?

00:05:19And so what we're going to do today is we're going to start with Dan Esty, who's been part of a transition before, and to talk about that extraordinary process.

00:05:28And then I'm going to speak a little bit about some of the themes, environmental and natural resource themes of the Biden platform and the Biden administration.

00:05:38And then we're going to turn it over to Scott Fulton.

00:05:41In order to meet some of those themes that I'm going to announce, Congress plays a significant role.

00:05:47What does that mean?

00:05:48How is that going to occur?

00:05:49And then finally, Seth Jaffe is going to clean it all up.

00:05:52He's going to be putting it together, because Seth is going to talk about what tools does a president have to accomplish the kind of goals that we're going to be talking about?

00:06:00And what about the role of the courts?

00:06:02What about judicial review?

00:06:04So Dan, start us out and talk to us about this amazing process that we're in right now, a transition from one president to another.

00:06:12John, thank you very much.

00:06:14Thank you all who are participating as viewers of this program.

00:06:18Look forward to the dialogue that John has promised you.

00:06:21So I did participate in the transition that brought President Obama into office in 2008, 2009.

00:06:28So I'm going to share with you a perspective from being on the ground.

00:06:33But let's start by saying that there is a federal law that defines the transition process.

00:06:38The Presidential Transition Act of 1963 spells out very specifically that resources are to be made available to the new president-elect.

00:06:47And that includes access for the key participants on that president-to-be's team to national security briefings and, frankly, to access fully all of the agencies of government.

00:07:00It provides funding.

00:07:01It provides office space.

00:07:02The General Services Administration is the particular party that the president-elect's team works with.

00:07:09But there is already in place an agreement between the Biden team and the GSA that expects office space to be provided for 500 people.

00:07:19I don't know whether in our pandemic moment that's going to be fully required.

00:07:22But in the past, that's about how many people would be in the central transition office.

00:07:27It's also important to note that beyond that, there would be specific teams assigned to various departments and agencies.

00:07:34So I was part of a team that went to the EPA, about 20 of us, almost all from the Biden – at that moment, the Obama campaign team.

00:07:44So it was people who had worked with the Obama campaign, and I'm sure what the Biden team will do the same, assign a dozen, 15, maybe 20 people who've been working on the campaign issues related to the environment.

00:07:56To go into the EPA, and there will be a different team going into the Department of Interior, another team at the Energy Department, a further team at the Forest Service.

00:08:05So there are going to be teams fanning out across the federal government, again, authorized by law to go in and get briefings.

00:08:12And here are the kind of things that transition team will be looking for.

00:08:16First, they want to understand what the big issues are in front of each and every agency that the new president will soon have responsibility for.

00:08:24So there will be briefings on issues under consideration.

00:08:28There will be questions around what legislative efforts might be underway, particular focus on what regulatory packages are moving through the agency,

00:08:36and frankly, which ones have just been issued as those are open to particular review.

00:08:41There's also likely to be special briefings about court cases that are underway,

00:08:46because there will be a chance for the new administration to review the position of the United States government in that they will now represent that government,

00:08:54and perhaps to reverse course with regard to defending some of the existing cases that are in place.

00:09:00Specifically, I would think in the case of the many legal challenges that have been brought up against various Trump regulatory rollbacks,

00:09:09you'll see a new team reverse course very quickly.

00:09:12The other thing that the transition team will be trying to do is establish whether there are positions that need to be clarified right out of the box,

00:09:20perhaps in the first week, some maybe in the first day of the new administration by executive order.

00:09:25We already know in the case of the Biden team that they've been very clear that they expect to rejoin the Paris climate change agreement on day one.

00:09:36And there may well be a series of other executive orders emanating out on that first day or in the days that follow.

00:09:42But the transition team is setting up the platform for all of this.

00:09:46They're thinking their way through the issues.

00:09:48They're advising the White House on what might be done, what could be done, what should be done,

00:09:52and really laying the foundation for the four years to follow.

00:09:56So all of that, again, is part of a prescribed process, and I expect we'll see those transition teams named very shortly.

00:10:04So, John, let me pass it back to you.

00:10:06Thank you very much.

00:10:08And so I'm not going to do justice to the entirety of the Biden platform on environment, energy, and natural resources issue,

00:10:16but I do want to highlight some of the major themes that have been promoted during the campaign,

00:10:23and then start with what one of them was what Dan has said, and that is president or elect Biden has said on the very first day I'm in office,

00:10:33I'm going to bring us back into the Paris accord.

00:10:36That shows you that climate is going to be a major environmental theme.

00:10:42He's talked about it.

00:10:43He's talked about it in his recently as that being exceptionally important to him.

00:10:49And if you look at the platform, you'll see that that climate issues actually dominate the environmental goals that he has.

00:10:58He wants us to be at net zero emissions by 2050.

00:11:04He would have, you know, public companies disclose their greenhouse gas emissions and risk issues.

00:11:13One of the more potent climate issues is methane and he would have new methane regulations, new standards, efficiency standards for appliances and buildings, and a huge R&D effort, all looking at things like carbon capture and storage all things to promote climate.

00:11:39So, so, again, a central theme in the environmental area for the new administration would be things all related to greenhouse gas emissions and climate change.

00:11:53A second though is environmental justice.

00:11:59The administration comes in and makes changes into the organizational structure, but one of the proposals of the administration would be to create a new litigating division at the Department of Justice.

00:12:10Right now, the Department of Justice has seven litigating divisions, tax, criminal law, civil law, antitrust and so forth, and then has an environment and natural resources division, which as Jeff told you, I used to head.

00:12:26So one proposal is to create a new division, which would be climate and environmental justice.

00:12:33And I think that's just an indication of how important they consider those two issues to be. In environmental justice, they would, you know, have new White House consuls so that would by itself, put more emphasis on that area.

00:12:51They would look at Title VI of the Civil Rights Act to try to breathe more support, more legal structure for that area.

00:12:59And so environmental justice is more than a simple concept. It is a vocabulary that the administration would use to look at racial injustice, to look at Black Lives Matter, but look at it in an environmental context to make sure I believe that all individuals

00:13:19are treated equally but have an equal opportunity to good air and good land and good water. So another whole area in environmental justice.

00:13:29In energy, which is closely related to the climate issues, again a whole list of goals that the administration would like to move forward with. They promote advanced biofuels.

00:13:43They very much promote zero emission vehicles and say that the government would then be required, the federal government to just at some stage just buy zero emission vehicles. They have a goal of 500,000 charging stations.

00:14:02They put a complete emphasis on alternative energy, particularly wind and solar and they said they would double offshore wind during their time. There are others, there are other issues that, you know, we can talk about when we have questions.

00:14:24They would support more public land that they would do. They certainly support the Arctic National Wildlife Refuge and would ban oil and gas permitting on federal land and hydraulic fracturing on federal land.

00:14:37They would support more enforcement and look at communities and do, in particularly clean air areas, more fence line monitoring. But hold these thoughts, more climate, environmental justice, more energy related issues, looking at public lands.

00:14:57Those are the kind of thematic issues we would expect the new administration to be talking about. So keeping that in mind, I want to turn this over to Scott Fulton and ask Scott, how does all this work with a Congress? Because some of this would require legislation. Will that work?

00:15:18Good question, John. Good to be back together again and to have Dan with us this time. Wow, what an incredible moment we're in. I've been given the task of sizing up what has transpired in the congressional elections, trying to figure out what that means. So let's size it up.

00:15:36The situation in the House of Representatives is settled at this point. Despite some Republican gains, we know that the Democrats will retain control of the House in the next Congress.

00:15:48The Senate is, however, the part of our composite that will remain somewhat inchoate until early January. As things currently stand in the next Congress, the 100-member Senate will include at least 50 elected Republicans.

00:16:06That means that the only path to controlling the Senate for Democrats is to win both of the runoff elections in Georgia, scheduled for January 5th by unseating two Republican incumbents, Senators Perdue and Loeffler.

00:16:21In that case, the Democrats would have 50 seats, the vice president, then becoming the tiebreaker for purposes of determining majority.

00:16:30Based on the first round voting, the prospect of the Democratic challengers winning both of the runoffs may be a tall order.

00:16:41In round one, John Osloff finished behind Senator Perdue by an almost decisive margin.

00:16:48And there are questions about how Raphael Warnock, while prevailing in the first round with less than 40% of a three-way split, will fare in a head-to-head contest with Senator Loeffler.

00:17:01But who's to say? Georgia is suddenly looking a bit purple.

00:17:06There will be a lot of money from Democratic supporters around the country likely pouring into Georgia and the run-up to the runoff.

00:17:14And both of the incumbents have strong ties to President Trump. We'll see how the pluses and minuses of that association shake out in the wake of the president's loss of the presidency.

00:17:27And Georgia's own moment of redefinition.

00:17:31But we, of course, can also expect a lot of Republican money to be pouring into Georgia to help preserve Republican control of the Senate.

00:17:39If the Democrats were able to flip these two seats and, of course, the opportunity space for the Biden administration to work with the Congress on significant legislation becomes huge.

00:17:51But I'm going to reserve the rest of my commentary for the scenario that may be slightly more likely and would produce a considerably more nuanced future.

00:18:03And that is that the blue surge in the Senate may fall slightly short, such that the Republicans retain control of the Senate.

00:18:13So what could we expect if there is Democratic control of the White House and the House of Representatives, but Republican control of the Senate?

00:18:23Let me mention a few things quickly. Environmental legislation.

00:18:28Yes, it's true that from a lawmaking standpoint, the Congress with divided chambers could once again be effectively stalemated.

00:18:37But with the White House not only open to but interested in advancing an environmental agenda, it does open up some possibilities, I think, in terms of some progressive but centrist environmental legislation.

00:18:52John mentioned climate change as a theme. I think there might be some possibilities in that space. Maybe we can talk about that more when we get to our discussion, as well as some other legislative opportunities.

00:19:06I'll note that the viability of environmental legislative initiatives will depend to some extent on where they fall in the administration's legislative queue.

00:19:18It may be reading too much into it, but I noticed that climate change fell fifth in the president-elect's priority list after, most noticeably, health care.

00:19:32That may not have intended to be an order of priority, but that's how it was offered.

00:19:38I'll just observe that the teaching from the last two Democratic administrations is that the pursuit of health care legislation can consume an enormous amount of an administration's available bandwidth.

00:19:52So the queuing on this bears watching.

00:19:56Appropriations. Republican control over the Senate means significant continued Republican influence over the budget process.

00:20:05This will limit the administration's flexibility in plussing up or moving resources to match administration priorities.

00:20:15Appointments. Because the major presidential appointments all require Senate confirmation, Republican control of the Senate will likely be fairly influential in the appointments process.

00:20:28While first-term administrations are usually shown some deference in setting up their team, these are unusual times.

00:20:37Some of this will turn on the contrariness tone that Mitch McConnell sets up for the overall relationship.

00:20:44But on the whole, I think the administration will find itself moving towards more centrist nominees than might have otherwise been the case.

00:20:54Congressional Review Act. Last time we met, we discussed the aggressive use of the CRA in the early days of the Trump administration to undo Obama rules.

00:21:06With Republicans controlling the Senate, the CRA is unlikely to be a factor in dealing with Trump rules.

00:21:13Oversight.

00:21:14While oversight capacity can atrophy when not used, and it hasn't been used very much by the Senate over the last four years,

00:21:22my guess is that the Senate oversight machinery, fairly active four years ago, will pick up speed fairly quickly and will once again be a fly in the administration's ointment.

00:21:36So that's just a quick assessment of some of the things to think about as we anticipate this divided leadership situation in Washington.

00:21:44But let me stop there and get it over to Seth so we can hear from him and get on to our discussion.

00:21:54Thank you, Scott. Pleasure being with all of you.

00:21:58Look forward to the discussion.

00:22:00So, yeah, this is the part where the rubber hits the road and we talk about what can actually get done and how it would get done.

00:22:10So the short version, I think everybody would assume, is, you know, Biden's going to do all of the above.

00:22:19He's going to do orders and guidance and regulations and statutes if he can.

00:22:24And, you know, the short version of that is orders can be undone by orders.

00:22:32Regulations can be undone by regulations.

00:22:35Statutes require new statutes.

00:22:37Simple framework.

00:22:39Important to keep in mind.

00:22:41I think, as some of you have already alluded to, certainly in the first days, there's going to be a significant number of orders and a significant percentage of those actually will deal with energy and environment.

00:22:59I think we need to keep in mind another sort of kind of dichotomy here, which is undoing what Trump did versus having an affirmative agenda of your own.

00:23:12It's going to be a lot easier for Biden to undo much of what Trump did than it's going to be, particularly without control of the Senate, accomplishing an affirmative agenda.

00:23:25That being said, there isn't that much more to say about orders.

00:23:31Things like secret science and, you know, all those sorts of issues where Trump issued a range of executive orders purporting to direct the executive branch to do various things.

00:23:48All those are going to go by the wayside very quickly.

00:23:52The only important thing to note here is executive orders are a little bit different because they are limited to the executive branch.

00:24:01Judicial review of those is different.

00:24:03I still expect this administration to be much more careful than the prior administration.

00:24:11And that's across the board on orders and on regulations.

00:24:16Statutes aren't purely in the administration's hands.

00:24:19So I'll leave those separately. But this administration is going to dot its I's and cross its T's.

00:24:25On the other hand, that's not that hard to do, frankly.

00:24:30And, you know, I'm showing my stripes a little bit, but my sense always was with the Trump administration that it cared much more about the tweets.

00:24:41And I mean this literally. It cared much more about the tweets than about the substance.

00:24:45It was riling up the base. And while I have a view about that, I don't even mean that pejoratively.

00:24:53That's just what the administration's priority was.

00:24:56It was delegitimizing, you know, much of the traditional environmental agenda.

00:25:04And it was doing that via its public relations agenda, I'll call it.

00:25:12So the fact that much of what Trump did was considered shaky and they suffered a lot of judicial defeats,

00:25:24doesn't mean that even with now much more conservative courts,

00:25:31that the sort of basic undoing stuff, as opposed to the doing stuff, is going to be at risk.

00:25:37They can undo much of what Trump did without judicial review being a problem.

00:25:43The affirmative agenda is going to be much more difficult.

00:25:47Let's start with the undoing part and the rules.

00:25:50So to get a little more specific, there are three or four big rules, which if I can squeeze in the time, we'll cover.

00:25:57One is the Clean Power Plan and the Affordable Clean Energy Plan.

00:26:03It's interesting because I tend to ignore oral arguments because it's just speculation and people just like to read tea leaves.

00:26:13But my sense is the Trump plan has faced some serious skepticism before the D.C. circuit recently.

00:26:22I still think you may end up with nothing because I think that a conservative Supreme Court was never going to be in the cards that the Clean Power Plan survived.

00:26:40And in fact, depending upon the authority Biden has, they almost don't care about the Clean Power Plan.

00:26:47They have much more ambitious things that are going to be much more.

00:26:49But I do think the new administration could not simply eliminate the ACE rule and go back to Clean Power Plan because I don't think Clean Power Plan stands much chance of surviving.

00:27:03Whether the ACE rule survives almost doesn't matter because that falls under the heading of things that can be undone.

00:27:10You know, as the Trump administration did in a number of cases, the Biden administration will go in and say, can we stay this litigation?

00:27:19We're relooking at it. We're figuring out what we can do.

00:27:22So that's one. As to what they can actually do, maybe we'll save that for our discussion.

00:27:29But my view is we're not going to fairly shortly, we're not going to have a Clean Power Plan or an ACE rule.

00:27:36WOTUS rule. Here's one where tough to undo regulation by regulation.

00:27:45It's an interesting question whether the Obama WOTUS rule would survive judicial review.

00:27:53I think that's a closer question than the ACE rule.

00:27:58But it's still by no means certain that if the Biden administration simply withdrew the Trump WOTUS rule and tried to go back to the Obama rule, that they could survive on that.

00:28:16There are two issues about review of WOTUS.

00:28:18One is the science is all on the side of the Obama rule and you get into issues about agency discretion and deference and that sort of thing.

00:28:28And I think Obama rule and now the Biden administration adopting that even in front of conservative courts is going to do pretty well.

00:28:37The problem is that the Trump administration didn't really rely on made up science.

00:28:44They relied on the notion that the statutory authority just didn't go far enough.

00:28:48To allow what Obama did to be lawful.

00:28:53And I think that's a close question, at least before this Supreme Court.

00:28:59And there's a decent chance that this Supreme Court would say, no, you don't have authority to go that far.

00:29:05I expect the Biden administration to go back to the Obama rule.

00:29:10It is scientifically defensible.

00:29:12And then we'll see.

00:29:15And given how long these things take, we'll see whether this can get done in four years even.

00:29:20But I expect the WOTUS rules eventually to make it back to the Supreme Court, certainly.

00:29:25California waiver, another big issue.

00:29:28Another issue, but really about undoing.

00:29:31Because all you have to do, you know, all this administration really needs to do is undo the Trump decision to withdraw the waiver.

00:29:41And this is an interesting one teed up for judicial review because there are significant federalism issues here.

00:29:50And I can imagine at least Gorsuch and maybe one or two of the other conservative members saying.

00:29:58This statute grants significant partnership rights essentially to the states.

00:30:04And the Trump administration did not have a basis for withdrawing the waiver here.

00:30:11So I don't know quite where this goes, but I certainly assume that the Biden administration will reverse the Trump waiver decision.

00:30:23And my guess is that decision prevails in the courts.

00:30:29But time will tell.

00:30:31Like many of the rules where Trump withdrew Obama things, even if the Biden administration doesn't defend the Trump rule,

00:30:41you would expect some automakers, not necessarily all, but some automakers, a variety of interested parties to intervene on the side of the Trump rule.

00:30:50And then you get into, well, should any litigation be stayed pending Biden doing a new rule that would reverse what Trump did?

00:31:01Finally, John mentioned the energy department.

00:31:05There are a whole bunch of energy efficiency rules that Obama got.

00:31:12I like O-Biden. We call it the O-Biden administration.

00:31:15That the Obama administration got out the door shortly before it ended that Trump has withdrawn.

00:31:23Certainly, I expect Biden to go back to those rules.

00:31:28Let me talk very quickly, I suspect I've now taken as much time as Dan and Scott, just potential areas of legislation.

00:31:37And I'll hold the discussion, but just flag them.

00:31:39One is, John kind of alluded to, renewable fuel standards might be an area of compromise that would avoid some of the arguments over clean power plan.

00:31:48It might be a way to get some of the greenhouse gas reductions in place.

00:31:53Second, emerging contaminants, we haven't talked at all, but Superfund tends to be a very local issue.

00:31:59Fair number of Republicans want legislation on PFAS because they have problems in their districts.

00:32:04So I think that's a possibility.

00:32:07And infrastructure is one.

00:32:10Some elements of a Green New Deal where parties can agree on infrastructure spending is one piece of that.

00:32:16And the other is a version of NEPA reform that progressives can live with that will facilitate getting all the infrastructure we need in place to build out a clean grid.

00:32:28And I'll stop there.

00:32:30Thank you very much, Seth.

00:32:32And now we're going to start our just conversation about different things.

00:32:37And Dan, I have a question for you, so you have to unmute yourself.

00:32:41But you talked about the transition.

00:32:44We've learned now, I don't think we even knew what a key role that the head of GSA can play in this whole transition process.

00:32:53Can you bring us up to date as what is that role and what is she doing?

00:32:59Well, as of the moment that we're recording today, the head of the GSA has not signed off on there being a presidential election winner, which is the trigger for the funding to flow and the permissions to enter agencies to go forward.

00:33:15So there is, at the current moment, kind of a holding pattern in terms of moving the transition forward.

00:33:22I expect that that will be resolved in the next few days as these elections become more definitively decided.

00:33:30But there is a possibility that this could become a whole separate legal battle if it were to go on for some long period of time without a resolution.

00:33:39My expectation is that there will be a transition process moving forward.

00:33:43And I think in any case, the Biden team is now raising funds and getting organized.

00:33:48And because we're operating in a virtual world anyway, I suspect they're going to announce a transition team very shortly and have those teams begin to meet as we are discussing over Zoom and have the conversations begin.

00:34:02But it will be more complicated if they don't have authorization to go and debrief the officials and all of the agencies and departments across the government.

00:34:10I mean, the only history I can draw from in that is the Florida issue that went to the Supreme Court in the Bush versus Gore decision.

00:34:21And under those circumstances, I don't actually think they certified it until mid-December.

00:34:26So there was a big break between the November election.

00:34:31And I assume that really hurt the transition process.

00:34:33You know, I actually think the transition teams began to get going, even while the election was still pending, because the transition is now quite short.

00:34:42You know, in prior eras, the new president took over in March.

00:34:46So there was a long period of time, I guess, for them to get on their train and make their way to Washington.

00:34:51But we now have a fairly fast turnaround.

00:34:54And it's a lot of stuff that people have to get their arms around in terms of leadership of the new government.

00:34:59And so I am confident that the Biden team is going forward full bore, that they're thinking about the critical issues.

00:35:07They're assembling their day one agenda, what they plan to do with executive orders.

00:35:11They have a 100-day action plan with a whole number of other things that are being set up for processing and being pushed ahead.

00:35:19And I think you're going to see the president hit the ground running on January 20th, the new president, regardless of whether the transition has been somehow foreshortened.

00:35:30Scott, you were as general counsel.

00:35:34You had to go through a confirmation.

00:35:37I certainly had to do it as assistant attorney general there.

00:35:41Let's assume for a second that the Democrats do not take control of the Senate, so Mitch McConnell remains majority leader.

00:35:53How does that Senate process work?

00:35:59You have Republicans viewing a Democratic nominees.

00:36:04How do they even get the vote under those circumstances?

00:36:11It's an interesting process to pass through.

00:36:14I wouldn't be eager to pass through it again.

00:36:17But I think some of this turns on the setup between the administration and Senate leaders before names begin to be surfaced.

00:36:31I think that there are some important early conversations between Mitch McConnell and some of the key committee leaders and the president-elect's team that will be very influential in what the composition of the president's team looks like.

00:36:53If the takeaway from that is that the deference that is ordinarily accorded a first term administration is going to be shown here by the confirmation process, then the administration will have much broader latitude in terms of its nominees.

00:37:13If instead it looks like the confirmation process is going to be a bit of a chokehold and that each nomination is going to be a tussle that might ultimately require a floor vote in order to overcome, then you're dealing with a ticking clock.

00:37:35You can only do so many of those and get your team in place.

00:37:42There are a large number of appointments that need to happen.

00:37:45If that's the dynamic that the administration sees setting up, it will, I think, move towards more centrist nominees.

00:37:54If we look at the playbook from the past for democratic leadership groups, the head of an agency like the Environmental Protection Agency will probably be someone with former government experience.

00:38:09I think all of the administrators within the past 20, 25 years at EPA were former state commissioners, the ones appointed by democratic administrations.

00:38:25That's telling in terms of the experience base that is seen as important for that post.

00:38:32I'll also mention that I imagine somewhere in the minds of Team Biden is the fact that some of these institutions like the Environmental Protection Agency are beleaguered or suffering from very low morale at the moment.

00:38:50The period that they've passed through has been unlike anything since the early years of the Reagan administration.

00:39:00There may be a thought for a solution that looks like the solution to that period, which is a Bill Ruckelshaus type figure who would be immediately seen as not only a champion for external audiences, but also a champion for a beleaguered workforce.

00:39:23I would imagine that's part of the thought, too, is there someone in the suite of possible appointees who would have kind of a rallying effect for civil servants across the government for whom this has been a fairly challenging period.

00:39:43Can I make one comment, John?

00:39:47I just think, and I don't mean to be too negative to Dan or Scott, I think Biden has to prepare for no cooperation at all.

00:39:57He can go forward. I'm not worried so much about the transition, but I could absolutely imagine Mitch McConnell refusing floor votes on anybody.

00:40:09And I think Biden's got to start thinking about what happens if we can't get a floor vote on, you know, then you start working on, you know, if they were to get to a floor vote, they get a number of Republicans who would support it.

00:40:25But it would be like when Scalia died before the 2016 election. Certainly, Garland had enough votes to get confirmed, but he couldn't get a vote. And we remember what McConnell said about, you know, his one goal with the Obama administration was to make sure it failed.

00:40:46Well, now he's got a majority. It's a lot easier to make sure it fails.

00:40:49This is for Dan. So, Dan, what happens in a CES scenario that you really can't get somebody confirmed or it takes longer than you want? What happens to that agency if they don't have a confirmed head or a confirmed deputy or something like that? What goes on?

00:41:08Well, I think you're going to end up with some acting officials stepping in to guide the structure. Although I think, you know, one of the traditions is that people that are being nominated tend not to want to step in and play acting roles.

00:41:23So it's a very complicated story because I think you don't want to in any way alienate the Senate that's going to have to eventually vote on your nomination. So there's generally been a rule that those that would otherwise be taking the senior positions lie low until confirmed.

00:41:38It does mean, and this could be another of the strategies, that you'll end up with a lot of things getting done by executive order without the agencies actually driving the agenda. So it's going to be a stronger White House, perhaps.

00:41:53I also think you might end up with the Biden team working to drive some of the agenda out to the states and working with state leadership to get some of the kind of environmental protection agenda going and the clean energy agenda.

00:42:07So I think it's a very interesting phenomenon if we end up with a deep breakdown. And it is possible. I actually am optimistic that is not going to happen. So I'm going to break with Seth on that point.

00:42:20But I think I don't discount the possibility.

00:42:24I hope you're right.

00:42:25Scott, this is back to you. At the beginning of the Obama administration, I was the acting assistant attorney general, but you were the acting deputy of EPA, and then later you were nominated to be general counsel.

00:42:39What was that like? You're right at the beginning of the administration. It was just being put together. None of the political appointees were in place, and you as a career person were in a political position.

00:42:53It was fascinating. I'll say that it was surprising to me in some ways because I had been in acting political positions before and had been a senior career person for quite some time.

00:43:09So I thought I knew what the White House process looked like and discovered that I understood it much less well than I thought I did, and that there really was a sort of flow to the business of the White House through the White House down to the agencies and departments,

00:43:33some of which is just not altogether visible by the careerists. And even in times when there aren't efforts to conceal that, it's a very significant kind of channeling of information and activity that the senior political team alone is dealing with.

00:43:54But during that time, I'd say that was one of the most interesting years of my career because I was the number two to the administrator. When she wasn't available, I kind of sat in the administrator's chair and spent a lot of time in the White House situation room and visiting with other members of the Cabinet and that sort of thing.

00:44:20So it was really a fantastic experience, fascinating to be involved in the setting up of the Obama machinery in that way. And of course, I had the opportunity to play a pretty significant role in the onboarding of all the political appointees at the Environmental Protection Agency.

00:44:41But on Seth's point, I'm going to go with Dan on this as well. I'm much less fatalistic about how this process is going to work.

00:44:51And I also would just observe that the executive branch has found ways to get its business done, even without the presidentially appointed Senate confirmed personnel in place. It's complicated. It's difficult. Some issues end up getting pushed up.

00:45:11Those are the ones that can't be delegated to other officials, even acting officials. Others will be decided by acting officials. And the construction is set up in a way that there is default authority that is available for acting officials, so a fair amount of the work of an agency or department can be done.

00:45:36This, I think, influences to some degree the obstructionist behaviors of the Senate. I mean, they can't really stop the government from doing its work. They can just make it more difficult. So then that just becomes kind of a cost-benefit equation. How much game really is that in there for them to be that difficult to make it that hard for the new administration?

00:45:59Well, I want to just add a thought, because I think one of the reasons I believe we're going to see some stuff move and there will be some bipartisanship is that the president-elect is a longtime member of the United States Senate. He has personal relationships. He's built a career by moving things through that body and, frankly, was attacked during the primary process as someone who was always engaged in give and take, even with people who he might deeply disagree with.

00:46:29And he was seen as a guy that understood the value of a compromise. I salute that. I think that is absolutely essential to good functioning of our government. And my guess is that we may have the best president in a very long time in terms of the knowledge of how to get things through the Senate.

00:46:45And go further on that. You and I have had discussions about common ground issues, and are there things that Republicans and Democrats could get together on? And I think Seth surfaced some of those issues. What do you think? Are there things out there that, whether or not it requires legislation, just would be more bipartisan? Are those kind of issues available?

00:47:10I think so. I expect, by the way, that the new president in January is going to be very clear on following through on the priorities as identified. So pandemic, number one. Economic recovery, number two. I think the first test of this, John, may well be whether there's some green recovery elements into the economic stimulus program that gets put forward.

00:47:32And by the way, there will be a price for that. There's going to be some give and take. I think, you know, Republicans will be able to ask for things they care about. And there will be a trimming of some of the things that might have otherwise been there had the Democrats controlled the Senate. But I do think you're going to see that. I think there's also evidence of potential bipartisanship on some of the funding for government lands and management. We've already seen that go through.

00:47:56I expect an extension of the 45Q tax credits for carbon capture and storage, perhaps even an extension of what they can cover. So I do think that there are some important opportunities here for cooperative efforts to move the points of common ground forward, at least.

00:48:14Seth, I want to turn to you for a second. This is on judicial review. President Trump is now well known for having put great emphasis on federal courts. I think he, during his four years, he probably has the record of the most district court and court of appeal appointments. And we all know the Supreme Court positions that he's been able to do in a relatively short period of time to have that many Supreme Court appointments.

00:48:42When we're looking out as to what the Biden administration is going to have to face in court, does that make a difference? Does it make a difference that we have that many new judges that are on the district court and court of appeals bench?

00:48:57No doubt. So you have to think about different categories of things. And that's why, you know, you want a democratic Senate, because if you do things by legislation, you know, the realm of judicial review is much narrower than if you do things by regulation.

00:49:21Whether this Supreme Court gets rid of Chevron deference, I don't know. I almost think it doesn't matter because they're going to effectively narrow the deference given to agency regulations, regardless of whether Chevron is, you know, formally overruled or not.

00:49:43But I think there are two related concepts. I think of them as separate, but they started to merge in my head. One is deference, Chevron deference principally, and the other is the non-delegation doctrine.

00:49:59I see this court as really likely to be very skeptical of regulatory programs that are pushing boundaries of a statute in one way or another, even if it's only that they say that it does, because this seems likely to be an outcome determining kind of court.

00:50:24But I see, so WOTUS is one, we talked about that already, where you're not the water and you're not the tributary and you're not the wetland, but you're four times removed. You know, again, I don't mean to downplay the environmental significance. The science is clearly there. The four times removed is still important.

00:50:47But, you know, OK, is it a navigable water? I kind of do get the skepticism. It's hard to wrap your head around at some point the idea that navigable water doesn't mean navigable water. So that's one where the conservative turn of the courts is going to make a big difference.

00:51:07And again, it's this notion of, you know, Scalia and, you know, we're going to be skeptical where an agency asserts an authority that it hasn't asserted in the past. And it seems to push against what Congress said.

00:51:23So I think what I would call, you can call it the Obama approach or the traditional approach to greenhouse gas reduction requirements that are beyond the fence line. I think there's a decent argument that you can't go beyond the fence line under current authority.

00:51:42And if I think it, then, you know, certainly there's a good chance that five or six members of the Supreme Court think it. And that's then where you get into things like Section 115 of the Clean Air Act. And I don't know how much we want to get into weeds, but, you know, can the international air pollution provisions of the Clean Air Act be a basis that somehow the court would support?

00:52:05It's one where you really miss Kennedy. He believed in internationalism. I'm not sure these courts do. And again, then there's the federalism aspect to the judicial review. Areas where you can position the aggressive moves that the Biden administration is going to want to make as pro-federalism.

00:52:29So this gets to Dan's point, you know, pushing stuff down to the states. If you take more aggressive action, but you allow the states to implement it, presumably it stands at least a better chance of surviving review. And I'm sure they'll have that in mind.

00:52:46And John, can I just say one other thing where it really builds on a point Scott made? I think the other big opportunity for the new administration is to rebuild both agencies that have been hollowed out and to bring in new talent, new energy and folks, perhaps even with new skill sets as a way to strengthen the environmental and energy efforts.

00:53:09And building on something Seth was just saying, I think not only will there be some push down of the strategy to have the states do the implementation, I expect there to be some lift up to the international domain. And that what you might see is a new president convening some kind of a conversation with allies on how to strengthen the Paris Accord.

00:53:30How to move together to finance clean energy across not only the developed, but in the developing world. So I think there are levers of power that can be exercised and leadership potential. And again, my view is that President-elect Biden has perhaps the strongest foundation to exercise some of these levers of power and influence. Frankly, I think he may occupy the bully pulpit with more vigor than anyone since Teddy Roosevelt.

00:54:00You know, you raised something that I think is enormously important and oftentimes overlooked. And that is the importance of the career workforce. I mean, I think statistically EPA has lost 20% of its workforce. So to do the kind of things that we're talking about, you're going to need more resources. And as you well know, the EPA appropriations also fund state level issues. So this comes back to Scott.

00:54:25So right now, appropriations matter. I think we run out our appropriations fairly soon. Are we going to face another government shutdown, do you think, during this time period we're in right now?

00:54:41I'm not going to take the invitation to be Dr. Doom.

00:54:45Leave that to me.

00:54:47Yeah, leave that to Seth.

00:54:50You know, it's going to be interesting to watch the emerging behaviors.

00:54:56I would be surprised if the appropriations process that has substantially driven up the national deficit now becomes very concerned about deficit management.

00:55:12That's sort of a play from the traditional play from the Republican playbook as a reason for not building out government programs or rebuilding government programs. And the deficit, which has been remarkably under discussed by the Congress over the past several years, looms large.

00:55:38My guess is it will re-emerge as an animating feature of the conversation about the federal budget.

00:55:46I think somehow, some way, there will not be a government shutdown in the near term.

00:55:55That there will be a cobbling together of continuing resolutions or whatever is necessary to allow the government to continue to function.

00:56:03That's an exciting dance and it's more likely to wait for the second year of an administration, I think.

00:56:12But always a possibility down the way.

00:56:16Dan, I want to go back to you. This is not a transition issue. This is a law. Right now, President Trump is the President of the United States and he stays president until January the 20th, which means he has every bit of legal authority that he had when he started out.

00:56:34Do you see him doing things during this time period that are going to impact the Biden administration?

00:56:43I expect to see a flurry of regulatory packages finalized over the next few weeks.

00:56:50Maybe even over the next few days to try to clear any possibility of coming within the Congressional Review Act.

00:56:57I do think that there's reason to believe that they'll continue to push the agenda right up to the very last moment.

00:57:04It does mean that the new team coming in in January has more undoing to do.

00:57:10That will keep them busy for an even longer period of time.

00:57:14That's my guess, that we will continue to see some degree of not only regulation, but as Seth pointed out, it's sometimes even the layer below that.

00:57:22It's guidance, it's interpretation, it's the kind of signals that get sent about what the regulated community, the business world in particular, needs to pay attention to.

00:57:33I will make one prediction of the first day of the Biden administration, which I think I can make with fair certainty since every other administration that I was in did this on their first day.

00:57:42The president puts out a proclamation or executive order that withdraws any rule that has not been yet published in the Federal Register.

00:57:52Because as most of us know, it's not really final, it might have been signed, but it's not really final until it's been published in the Federal Register.

00:58:01And because every administration I was in, there was a push right at the end to get those last bit of rules out.

00:58:08And a new president comes in and stops anyone because there becomes a long queue in the Federal Register, sometimes takes a couple of weeks to get things published.

00:58:19And I can absolutely predict that that would be one of the things that would occur.

00:58:26But any other thoughts by anybody else or things that this president might do during his time period yet?

00:58:34Looks like he's going to be busy meting out punishment to folks who were insufficiently loyal to him.

00:58:43We saw the Defense Secretary being taken out of play.

00:58:48And then yesterday, the fellow who runs the U.S. Global Climate Change Research Program that puts out the National Climate Assessment, Michael Kupferberg,

00:58:59was removed from his position. In his case, I think he was returned to his permanent slot at the Department of Energy.

00:59:08But it looks like there's a review underway to consider who ought to be reminded about where they stood vis-a-vis this president that will inform judgments over the next month or so.

00:59:26Well, and you left out, I thought, one of the most significant, which is demoting Neil Chatterjee, who is a McConnell guy.

00:59:35You know, which clearly Trump doesn't care about, but it's kind of significant.

00:59:39And I think he may look for other, you know, I don't know who else.

00:59:43That's worth mentioning just because we didn't talk about FERC at all.

00:59:47And a lot of the Biden agenda is going to end up playing out at FERC in one way or another.

00:59:52So it's an important thing that we didn't talk about.

00:59:55Well, Seth, you've also highlighted something which, you know, again, for those who are not familiar, this is the chair of the Federal Energy Regulatory Commission,

01:00:03who I think may have undertaken with a recent FERC order, creating an opportunity for renewable power and for storage batteries and storage to play in capacity markets

01:00:14and to be part of the wholesale market structure of our grid, may have won the prize for the single most positive environment and energy development of the past four years.

01:00:27So while Neil Chatterjee has paid a price and has been demoted out of the chairmanship, I think history vindicates him and we'll see that as an enormously significant step for what, as you pointed out, Seth,

01:00:40is an important role that FERC has to play in advancing any pathway towards a clean energy future, particularly one that's really focused on deep decarbonization with more energy efficiency and the bringing on at scale of wind and solar and other renewable power sources.

01:00:59We've already mentioned, you did and then I did, that, you know, the first day of a Biden administration, he has pledged that we will come back into the Paris Accords.

01:01:14What does that mean? I mean, what will actually happen? I think we're out of them now. I think that now the time has passed.

01:01:23But just because we raise our hand and say we're in, what significance does that have?

01:01:30Well, John, as you know, the way that the Obama team joined the 2015 Paris Agreement was structured as a presidential sign-on, effectively going further and explaining an already existing treaty.

01:01:48So basically they rested their legal case on there being a 1992 Framework Convention on Climate Change that had been ratified.

01:01:56By the way, just to harken back to a different era, we might offer a quiz question to our audience about what the Senate vote was on that 1992 treaty.

01:02:09As I'm sure all good students of social studies recall, the advice and consent requires two-thirds of the Senate.

01:02:16And so we'll pause for a moment while people think about what the vote at that time would have been.

01:02:22In any case, I think what you're going to see is the new president in January doing what President Obama did and then signing on.

01:02:32And by the way, this is a pattern of decision-making for international agreements that every president going back to George Washington has done.

01:02:40So not everything ends up being officially put through as a treaty and getting that two-thirds vote or not even put through as a legislative executive agreement, which requires a majority vote of both House and Senate.

01:02:52And that pathway has been used frequently in recent years as well.

01:02:56But this idea of the presidential sign-on is quite common.

01:02:59I expect that does get us back into the Paris Agreement.

01:03:03And by the way, the world is waiting for the U.S. to be back in.

01:03:07So there is not going to be anyone who says, really? Are we really? Is the United States really with us?

01:03:12They're eager to have us back.

01:03:14So I think what's going to be interesting, frankly, John, in the story beneath this, is the president-elect is committed to a very robust ramp-up of the U.S. action agenda.

01:03:26Committing to a net zero emissions in the United States by 2050.

01:03:32And that requires beginning immediately with deep decarbonization strategies.

01:03:37And so I think the interesting question is, how far can that go?

01:03:41Obviously, planning processes can begin.

01:03:43But this is one of those cases where you really probably need significant legislation in order to put in place the policy levers necessary to change behavior so broadly.

01:03:53Really changing behavior in every sector.

01:03:57We're going to need to have the power sector deeply decarbonized quite quickly.

01:04:01Transportation has to move.

01:04:03A broad electrification of buildings.

01:04:05So there's a lot to be done if this agenda is going to move at the speed and scale that I think the science community is telling us we need.

01:04:13And I believe a policy consensus has emerged around, although outside the United States, with the U.S. not in that discussion in recent years.

01:04:21Scott, my last question, and then I'm going to give everybody a chance to wrap up, is that you were a leader when you were an EPA and now at Environmental Law Institute on environmental justice issues.

01:04:35I already mentioned in my review of the Biden platform that environmental justice was quite important to them.

01:04:42How do you see that rolling out?

01:04:44How do you see the impact of that in the Biden administration?

01:04:48This falls into the category of issues for which a fair amount can be done through executive action just by returning environmental justice to a place as a key priority in terms of how the executive branch does its work.

01:05:07There seems to be an intention to do that.

01:05:10There are limitations on how far the law can be advanced in this space without legislation.

01:05:20I am somewhat doubtful that meaningful legislation on environmental justice will be possible with the arrangement that we've been discussing here.

01:05:33Although I would hope that it would be because I do think it's needed.

01:05:37It's a place where we're not really where we need to be with available tools to deal with a very real and significant issue.

01:05:48In the absence of legislation that makes environmental justice more actionable through litigation,

01:05:57the administration will be left with the tools available to it to advance change, which are primarily discretionary tools in terms of how it implements its authorities.

01:06:11Since I spent most of my life in litigation, I'm going to be the closing judge.

01:06:17You have that moment right at the end of your case where the judge turns over to you.

01:06:22Dan, you're going to go first and say, counsel, you have 30 seconds to summarize your position.

01:06:28Tell me your closing thoughts on a Biden administration, 30 seconds each, Dan.

01:06:34I think we are going to see an interesting moment where there's a choice to be made largely by the Republicans in the Senate about whether they want to work together with the new administration and try to achieve some things on a bipartisan basis or whether we're going to see ongoing breakdown.

01:06:49I don't think the public is in favor of breakdown.

01:06:52I predict we are going to see collaboration.

01:06:55One whole line of activity that we haven't yet talked about is an agenda around innovation, particularly around clean energy innovation.

01:07:02I anticipate we will see funding for ARPA-E, perhaps even the creation of a new technology development group called ARPA-C for climate change action.

01:07:13I see the possibility of getting budgets restored at the DOE, at EPA, again, on a largely bipartisan basis.

01:07:22Scott, 30 seconds.

01:07:26I guess I'm going to aim my closing at our constituency or our listenership who I'm expecting to be environmental practitioners, lawyers, consultants, those who are involved in the environmental cause in various ways.

01:07:39My thought is that this is going to be a period of growth for this body of work.

01:07:47We've just been through a period of deregulation, which has affected the sort of workflow for a lot of folks in this sector.

01:07:58I think this represents a coming out of that and should be a very interesting period of very meaningful work for people who do the kinds of work that we all do.

01:08:11Seth, close us out.

01:08:13So I'm going to throw off the Dr. Gu moniker and just say it's a great day.

01:08:21And I am overall optimistic.

01:08:24I think a lot's going to get done.

01:08:25You know, the challenges are just scary and almost overwhelming.

01:08:32But we have a responsibility to do what we can as we can.

01:08:37And I think that's what the Biden administration is going to do.

01:08:40And I think it's going to get a lot done.

01:08:42So overall, I'm optimistic.

01:08:44On behalf of everyone, I want to thank our wonderful panelists.

01:08:48But also, I want to challenge our listeners.

01:08:49We're on the 50th anniversary of Earth Day, now the largest secular holiday in the world.