 Okay, we're back. We're live here. It is on a given Monday morning. We have Richard Walsgrove but his friends refer to him as professor. He's a professor, professor of law at the William H. Richardson School of Law and UH Minoa. Good morning, Richard. Welcome to the show. Good morning, Jay. Thanks for having me. Nice to have you. Well, let me let me frame this by saying, you know, there are three things in our public world today. One is climate change and environment and that has a lot to do with energy, which is your specialty. And the second thing, of course, is COVID, which, you know, it seems to occupy all of our attention and rightly, rightly so. And the third thing is what I'm going to call it social trouble, such as we've seen over the weekend in the George Floyd protests in this country and in other countries as well. So what we have here is three things that tug tug at the social order, if you will, at the future of the planet. And I would like to explore with you the connection between the three. You know, we started out and I mentioned this to a couple months ago when I saw you. What was it? The HECO Town Hall meeting. I make that Hawaiian Electric Town Hall meeting that there's a connection, an interaction even between climate change and COVID. And the other way is also between COVID and climate change argument. But what's come up since is, you know, we have COVID has stopped economic activity in most places. And lo and behold, we now have less carbon emissions. And I was saying the revelation for me is that this is proof, or at least it's a pretty good argument that carbon emissions and climate change are a function of human experience. If you reduce the human experience, you reduce the carbon. Is it clear or not? Well, I think there may be two ways to look at that. The first would be, is it true that we can correlate economic activity in our modern world with greenhouse gas emissions? And the answer is absolutely yes. We didn't need COVID to know that. We saw it in 2008 and 2009 and we've seen it repeatedly. I guess the question looking forward, which is more interesting to me and I suspect also to you, is does that correlation hold no matter what? Do we need to decrease economic activity in the future? You know, do we need this manmade reduction, economic activity to have a manmade reduction in our greenhouse gas emissions? I'm not so convinced that that necessarily holds. It's really a question of the system we build, the system we build amidst greenhouse gas emissions and how much it emits as a function of economic activity. If something is up to us, we can make that decision. Well, you know, we used to, I'm thinking back to COP 21, we used to have a kind of world focus on this and that has been fragmented during the Trump administration. And now I think it's hard to find world focus on climate change and you know, there's not a lot of things happening that attempt to reduce climate change these days. What's your thought about that? Have we reduced our effort? I mean, not necessarily voluntarily, but just as a human experience, the political experience, the social experience, you know, and this, I'm looking at this as a snapshot before COVID, you know, reduced economic activity. Have we declined in our interest and our action points in the last few years? You know, I think that's a question everybody was hoping we could answer at the upcoming COP that was supposed to be in November in Glasgow. It's now been pushed back by a year. And that was the year where the only thing anybody expected from that particular conference of the party was the whole world would come together and decide, are we are we advancing the ball or not on reducing emissions? My perspective about whether or not it was happening already is as fragmented as the globe that you just described. As I walked around those COP meetings in the past few years and took students there so they could also reflect on it. And I listened to what they had to say. You see a mixture, you see a mixture of the status quo, which is, I think, resistant to making the systemic changes that are needed to reduce emissions. And those pop up in lots of expected and unexpected ways. And then you'd pop in and talk to the next person, you know, you talk to Norway, whose economic basis for generations has been oil or for at least a generation has been oil exploration. And the folks from Norway are talking about how they can transform to a net negative emissions scenario. In other words, that's their new plan, the new target, which is moving, I think, radically from where we were a year ago. Nobody was talking net negative a while back. So whether or not we were acting appropriately or not is something we probably can't know for another decade or two. But I see movement in both directions. It's almost like a horse race. And I just wish I could give you a better answer about whether or not things were looking rosy or not. It depends on whether you call me on a Tuesday or a Thursday. And I'm feeling good about things one day and not so good at things about the other day. And we see that locally, too. We see lots of progress in the local greenhouse gas emissions landscape, the energy landscape. And we also see a disappointing retrenchment in some places. I'm thinking of Build 25, the city council, which could have been a really drastic step in how we are built environment and how we design homes and businesses. And there was a lot of pushback to that idea. So I see the good and the bad, Jay. You tell me which one we should talk about today. Well, you know, back how many years ago, 20 years ago, there was the movie, Al Gore's movie, Inconvenient Truth. And I was with my wife and some friends having dinner. And my friends had just seen the movie that day. And I skipped dessert. I actually left them in the restaurant so I could go see the movie because I realized right at that instant moment that this was critical and that we really had to move with all dispatch. And I've never changed my mind about that. And yet, you know, a query, are we winning this game or is it enveloping us? And are we moving fast? Do people recognize? Do governments recognize? Does the world recognize? I mean, if they put off Glasgow for a year, in many ways, we will have lost a year again. Are we moving fast enough or is this just going to tear at the fabric of our civilization, ultimately, because we haven't done enough? So I can give you a less wishy-washy answer than the last question. And say, no, we're certainly not moving fast enough. You just look at the data. Let's look at the numbers and look at that curve that everybody says we have to bend. That's a great analogy we can use for climate change. We all know what bending the curve or flattening the curve means now. And the curve was not bending as fast as it had to. It's not pre-COVID and probably not post-COVID either. But I don't know if that means we've failed, right? That's the question. Have we already failed? Are we looking? There's almost no question in my mind that climate change just tear at the fabric of society, particularly for the most vulnerable of the global population. And so have we failed avoiding that outcome? I don't think we know that answer yet. And I think things like saying, you know what, net negative emissions, an atmospheric repair program is our agenda. That's a terrific thing to see. Then you've got the White House who calls climate change a hoax. That's a really dangerous thing to see. I really don't know who it is, but communication. You talked about sort of your moment of realization on this topic was a movie. That's a brilliant move, right? There's a medium that people can relate to in ways that they don't relate to going and looking at numbers on a page and seeing bending the curve that way. And I think communication is probably going to be the tool that wins or loses the battle, how we talk about these things and what we say. It's incredibly important and stressful for lawyers. I can tell you that much because we think a lot about how we frame things and how we say things and what we, you know, what we want to focus on. And I feel like I have imperfect information about what the right words are to capture the momentum in the right direction. Well, that actually is a great segue to a core point here. I mean, you're a professor of law and you're, you know, into energy and climate change, which are inextricably intertwined. And so it seems to me that if you want to achieve any meaningful, you know, progress on this, any meaningful achievement, you've got to change the laws or you've got to enforce laws in such a way so that it changes human conduct on a grand scale. You know, a village here and a town there doesn't really help. You've got to change human conduct around the world to deal with a global problem. So what have we got going in terms of the laws? I mean, even COP 21 is so much voluntary. You can opt in, you can opt out. Some countries do, some countries don't. Some countries can afford to implement new rules and some can't. From a legal point of view, how important is changing the law to recognize, you know, a need for alacrity? I think the law does exactly what you described, that it sort of, it sets the norm. It sets what is our baseline expectation. And of course, we don't want, I don't think any of us really want a legal system that dictates every move of every individual. That dooms to failure and probably gets it wrong anyway because we will forecast the wrong action. But we do want law that says, you know, we understand what the baseline expectation is for ourselves as a society. We want to thrive. We want to survive. Pick either one. Either one is relevant to climate change. And so the law, the law's role in setting that norm I think is fantastically important. But you mentioned some frustration or what I interpreted as frustration was the voluntary nature of some of the international laws, the Paris Agreement and voluntary nature. If I think of the law's role as just setting a norm, you know, a voluntary law is actually okay. If we, if we design a global system where 95% of countries or forget that, what if I said 190 countries out of roughly 200 all decide that net negative emissions is necessary. That's okay. The five countries who opted out, they can be wrong. Now, you've got a question about whether or not we should punish those countries. And I think that's also a role for the law, a role of the law to figure out how we internalize some of the externalized costs from decisions. And if the US ultimately doesn't want to, you know, at the federal level, doesn't want to reduce emissions, I would expect a global legal norm that makes the US pay for that decision one way or another. And ultimately, it's probably not the best choice for the US. I don't think we've gotten there yet. We haven't gotten to that question of, you can give it whatever phrase you want. They're all loaded with particular nuances that we're talking about climate liability, or we're just talking about sort of the economic idea of internalizing costs. I think the law has not gotten there at the international level certainly. And I don't think it's gotten there at the local level either here in Hawaii. Although, in some ways, I think Hawaii is doing a great job changing the norms, you know, something like just saying we want to target 100% renewable energy. There's a norm. That's a binding law, but there are a lot of loopholes in that law. I'm not concerned by the loopholes because I've seen the norm change already. Now, there are, I don't know, count them, right? There are 10 million decisions to be made between here and that ultimate endpoint achieving that norm. And what role the law has to play in each of those is a case by case contextual question. It's really hard to answer as a general matter. I go back to communication. If everybody's, no matter what the law says, if everybody's talking about the issue in a way that progresses towards a sort of mutually and socially beneficial outcome, I'm okay with a legal regime that does that. I think we also have to recognize this isn't just energy law. I've been thinking because of your questions and thinking about the ties between COVID and energy and climate. And one of the things that strikes me is that we have a virus that has led to the Supreme Court deciding a religious liberties question in recent days. Nobody would have said that those two are related two months ago. But now we see that actually because climate and energy are so integral to the fabric of our society and our laws, we're seeing a legal decision on something as important to many people as religious liberty. That's so difficult to forecast where those twists and turns go. But if we just stick with the basic understanding that we need to reduce emissions, I think we can trust the law makes the right decision. Well, let me add a thought and be provocative for a minute. You speak of the law as a reflection of how the people in the jurisdiction feel. That's the democratic approach. If nobody in the jurisdiction wants to do anything about climate change, well, you can't expect the government to somehow do climate change, address climate change. And then, of course, it goes back to communication. If everybody buys into the, you know, the Gord movie, then maybe more people be writing their representatives in Congress and demanding action and those people in turn will, you know, take action. And so, you know, what I get is it's a question of degree. If people are very concerned about this, if they think their future, the future of their children is heavily impacted, they're going to be taking more steps. But a lot of people in this country don't care. They don't give a rift about climate change. They ignore it. I mean, and they take the lead from our president. He doesn't care. In fact, he works against it. And they don't care. They work against it, too. So what you have is a very, I want to call it less than active movement in this country. At the same time, and other countries, you know, are across the board also, at the same time, climate change is inevitable. It's happening. It's a matter of physics, science, and we certainly can't keep up that way. So if you make me king, and I would be happy to make you king, too, Richard, I would say, wait a minute, the people can sometimes be wrong. If we are going to save them, you know, despite their ignorance on this and their lack of interest in it, then I'm going to, as king, I'm going to do something. Wouldn't you do that? Wouldn't you change the law? Wouldn't you set aside the democratic process? It's provocative, I know. Nothing like telling this to a law professor. Wouldn't you set aside the democratic process and say, hey, boys and girls, we've got to do something. And if that means we don't care about consensus, we're going to do it anyway. There's a role for that provocative idea, certainly. I can think of one right off the bat, and it's timely. No matter what a mob says, the law should prohibit the killing of an unarmed police suspect. No question, right? And that, I think that there are a lot of things about our federal and state law that are baked in to do that, to sort of protect, that we hear the phrase, the tyranny of the majority, right? Protect the minority in a time when the majority perhaps doesn't agree with some fundamental principle. I'm not sure whether or not that's effective for climate change. You know, let's make this, let's take this and put it in the context. I'll use a provocative context. The tension or not between agriculture for land, for agriculture, and land for renewable energy. That's a real question in individual communities. I think it's a real question as a policy matter as a whole. I have heard from other academics that one of the things that needs to be done, this is the phrasing that's used, needs to be done, is to fast track the environmental review process for renewable energy project. And I can understand that, right? Oh my goodness, renewable energy isn't happening fast enough. There's a crisis on our hands. We just don't have time to wait. But I really question whether or not that openly slows down the process. I can imagine here in Hawaii that the community pushed back to, if you said there's no more public input when we decide where to cite a renewable energy project. Does that really accelerate renewable energy or not? And I have a sense, and it's no more than a sense, that it slows it down. I also have a sense that there are probably other solutions that don't bear the same risk. And so you're, if you were king, I'm sure you'd make many sensible decisions. But whether or not you would be the best king, perhaps is something that we just can't know. And our social experiment with the law, because we're always changing the laws with imperfect information, another lesson from the COVID crisis. As we as we move through this social experiment with imperfect information, I don't think any of us should have the hubris to think that we have the right answer. I certainly don't think that I have all the right answers. But I also agree with your fundamental premise, which is sometimes many people can have a position on an issue, a reasonable position that I can understand, but I can disagree with, and ultimately that I think should be overruled. Sure, I'll bite. You know, in COVID, we have an interesting, you know, you've been touching on science. Science is a factor in all this. I mean, if I tell you that we have a zero sum game on agriculture renewable energy, well, scientific, you know, suggestions may resolve that. Maybe I can do both in the same area of land, you know, you have to refer to the sciences, right? Right there in Minoa, for example, who might be helpful on that. But what we have, though, in Washington now, is an administration that doesn't support renewable energy, that is, that has not mounted a good campaign against COVID. And at the same time, is ineffective. And there's undermining our democracy back from the days of the founders. I mean, I don't, you would have to agree with me as a law professor, that there's a concern about the future of our democracy when Congress isn't working. And the Supreme Court does not have the confidence in the people. And the president has become a sole proprietorship. So, you know, with all of that, it's hard to say that consensus and the expression of the public view in the matter to the exclusion of science is a working model, great experiment, as you put it. I'm not sure the experiments working right now. That's the reality in Washington we read about in the paper every day. So, you know, how can we make important decisions? How can we develop important priorities when our system of making decisions and our system of, you know, allocating the priorities is clearly being undermined and is not as effective as we might have hoped or that the founders might have hoped. This changes the, it changes, it changes the world, doesn't it? Yeah. And it's scary to watch. And I'm probably not the only law professor who watching Supreme Court confirmation processes in recent years or other things happening in Washington DC has lost what used to be a pretty, you know, bedrock faith that the system ultimately can work. I'm not ready to say yet it's failed because I don't know, I've been alive enough to see, you know, things change. So perhaps it can be resurrected. But that federal system, as it stands today, is completely ineffective. And so as an advocate, I would spend almost zero percent of my time working on those federal issues. That's one of the things that the most recent presidential administration has sort of prompted is a shift back to local decision making, state decision making. Interestingly enough, a shift back to federalism that is opposed by those who call themselves federalists. A lot of this just goes back to communication. We know what's happening. There are deeply entrenched, highly moneyed interests with trillions of dollars on the line in the status quo. It shouldn't surprise anybody that people with those sorts of resources would try to sort of corrupt the process at the federal level. Can they corrupt the process at our state level? I think that's a more difficult task. And there are groups who do it. There's Alex, the American legislative exchange council. They go state to state and try to undermine things like renewable standards with not quite as much success, I think, as we've seen at the federal level. I think that we have to get comfortable with the idea that with, you know, hundreds of millions of people in this big social experiment, one person sitting in an office in Washington, D.C. is important, but it's not permanent and it doesn't define the past. I think if any of us were to say, oh, the Trump administration doesn't agree with me on climate change, so the game is over, or so we need to, you know, tear the Constitution apart. That's, again, that about slows things down more than it actually speeds things up. If instead we say, that's not an effective playing field, I'm going to move and I'm going to do my work here. Also, let's not forget the power of the ballot. You know, with respect to executive administrations, the idea is it can change every four years, so that's something that I might spend my time on as an advocate. The Supreme Court turnover is slower, but it changes too. Can it change in time to address the climate crisis? Probably not. That's why creative lawyers are finding ways to make policies and find, you know, liability in ways that don't require us to use those infected systems in Washington, DC. Let's find other ways to do it. It might have read last week that one of the climate change lawsuits in California was sent back to the state court. Well, there you go. There was a lawyer's sort of strategic and tactical move to avoid the problems that you described. Fixing the problems that you described. I don't see any of any root other than the ballot box. Yeah, but the ballot box has its troubles these days and we'll have much greater trouble if the post office is dissembled here coming next month, this month. But let me go to another issue. I mean, before we do that, I just want to tell you a story. Jack Balkan was on our show. He's the Dean of Constitutional Law at Yale and it was during the W term. And I asked him, I said, you know, can we go back to the way it was before W? Because he had done a good job on so many issues. Can we just like spring back to the way it was? And he said, no, you don't understand history, constitutional law. They work together and everything that happens forms the future. Every event whether you like it or don't forms the future. And I think the Republicans and Trump are fully aware of that. They're trying to have a shadow and influence on the future by the appointment of these judges, by changing the way the ballot box works, by trying to perpetuate their view of things even after he's out of office, even after Congress has returned to a better configuration. So it'll be a real struggle to achieve the same things that we had before. We'll have to fight the same battles that we had before. That's just what he said. Anyway, I'd like to cover the next few minutes anyway is the is the reverse and see what your thoughts are about that query. You know, does either factually or legally does COVID have an effect on climate change? That is, or maybe I put it the wrong way. You know, arguably what Trump said at the outset was that in the warmer weather of the summer, don't worry climate change will have an effect on COVID, COVID will go away. We all know that we were kids. The cold season was in the winter. I think that's what he was thinking. And so there's a, you know, we live in a world where all these things intermesh, virus, people and the results legally of people and governments, we're all in the same soup. And the virus is affected by what we do. The virus is affected by the effects or no effects that we have on climate change and the effects of climate change on our ecology. What are your thoughts about that? Is there an interaction between the coronavirus and climate change? On many, many, many, many, many levels. You know, public health experts have been saying for years that the climate trends we're observing lead to increases in things like vector-borne diseases. So at a very, you know, just looking sort of in the most simplistic way is what we're experiencing now, something that we should be afraid we'll see more of in the future of climate change. The experts tell us yes. But I think there are also lots of nuanced ways to think about that, the interplay between our COVID crisis and our climate crisis. Climate energy advocates have talked for years about resilience. And it's sort of a fuzzy concept, what does resilience mean? It means different things to different people at different times and different sectors. I think this COVID crisis has teaching us a little bit about what resilience actually means in our own lives, my own house. I understand what resilience means in a little bit of a better way. And I see the value of resilience. And so can we turn that into a way to advance the ball? I go back to communication again. You know, the way we talk about things, resilience was not a terribly effective thing to say six months ago. I suspect it might be a very effective word from here on out. There's history, you know, it will never go back to the way it was, but that's not necessarily a negative. We can use this to the advantage of the world if we want to. There are just so many other levels. You started on sort of science and listening to experts a little while ago. And there's another lesson that's not hard to see out of a COVID crisis. We know that climate scientists have been rejected by policymakers locally too. That's not just a Trump phenomenon. That's happened here. And we've seen the same thing unquestionably in COVID, whether it's the misinformation spreading around in so many different realms is shocking in a lot of ways. Can we get smarter about that? I bet there are a lot of people who weren't terribly concerned about the misinformation age a few months ago, who now are. And of course, there's probably a large group of people who are equally unconcerned about climate misinformation as they are about COVID misinformation. So that's a sort of a problem still to tackle. But I think there are some silver linings and some things to think about, but some lessons to learn, if you will. This is a painful experience that society is going through. It would be terrible if after this was all over, and I don't know if or when or how it's all over, but let's just do a thought experiment and say at some point in the future it's all over. If we were to say let's just go back to the way things were, that would be a lost opportunity. Opportunity is maybe not the right word there, because I hate to think about these difficult times as an opportunity, but it would be a lost lesson. It would be us basically burying our heads in the sand, and we're smarter than that. Society, I think, we're smarter than that. Even the entrenched interest is smarter than that. I know there's a lot of news lately about large investment firms like BlackRock and their role in the climate crisis. And the news goes both ways, and you see some good and some bad. A decade ago, we didn't see large investment firms talking about climate change, and so there you go. There's a step in the right direction. It's not enough. It's not what the king would do. King Jay would ask for more and sooner, and he's got data to back that up. But nonetheless, there's a lesson. And so again, as advocates, I would talk to my students about how do we capitalize on that? What are the things we do in the business sector that might actually advance the ball on climate change? What are the things that you can do in the business sector that leads to a more prosperous economic society for everybody and also reduces greenhouse gas emissions? Which again, a decade ago, I don't think anybody thought was possible. And now if you were to ask a nerd like me, I think it's almost inevitable. You know, you're talking about the students, and it takes me to my last question to you, Richard. You're teaching the students and you're trying to cultivate what you want to call it. It's a Socratic method, not only of attending class, but of living and finding the right answers and collaborating and doing the best possible human experience. And it's going to be very challenging, hopefully soon at the end of COVID. But they've got to deal with repairing government, if you will, or taking government to the next level. They're going to deal with all the issues we've been talking about, including rebuilding the economy, forming a lot of corporations, doing business. This is very challenging. And my question is, and you deal with them, you rub shoulders with them, you engage them, you understand their way of thinking, are they ready? Are they going to be ready? Are we going to have a generation of, because I think lawyers are extraordinarily influential in our world. Sometimes they don't take advantage of that level of influence. I mean, or at least they don't see themselves as leaders. They see themselves as practitioners and advocates rather than leaders. So my question is, are they ready to lead us or participate in the leadership of the country and more, to the next level, to a better level, when this is over, when they're graduated? I only have two frames of reference to think about that question, Jay. One is my own experience as a law student 12 years ago. And the other is the past few years, when I've been lucky enough to rub shoulders with students at the law school while I'm teaching. And one of the things I remember from almost the very first day of my own orientation was thinking, wow, this is an impressive group of people who think about issues in a way that I never did before. And you know, that's one of the things law school does, is you get to see things from a new perspective, which is incredibly important to solve these sort of unknown, unanswerable questions. You have to look at it from new perspective. And I see that same thing in the students today. I don't see any difference between my classmates and the current crop of students in terms of that ability to look at things in a new perspective. I do see in the modern crop of students, I see, especially in the past year or two, a much bigger focus on their own communities and that being the sort of motivator for why they're interested in learning about new perspectives. And I think that could be incredibly powerful. It could also mean a change in the way things used to work. You know, I think lots of times a lawyer, like you said, might be interested in practice or might be interested in moving to Washington, DC, where the movers and shakers are. And I wonder if a crop of students who say, you know, I'm going to start with my own community and define community however you want. There are lots of different ways to define it. I think they could be incredibly powerful. It'll be a new model. And it's an experiment. I don't know if that will work. I think there's some evidence that it will. I think back to people like Eleanor Ostrom, the Nobel Prize winner in economics, who did some empirical research on the sort of role of communities in changing global sustainability or in terms of changing global policy and management. And she found ways that it worked. And I don't think we had ever envisioned before she found those things. So maybe these students have just sort of cottoned onto what Eleanor Ostrom was saying. On the other hand, I can see a risk. I can see a risk that people who are, I've been accused of this myself actually. I'll just talk about myself. I'm told that, you know, thinking about climate change in Hawaii is a waste of time because Hawaii's emissions are dropping a bucket compared to the globe. I don't believe that, but maybe I'm wrong. Maybe I am wasting my time and I should be focused on, you know, the Permian Basin or something in my own advocacy. I think the students are they're forging their own path and they're going to do it in ways that shock us. And I'm okay with that. I think that's the role of the next generation is to take old stories like us and to shock us a little bit. And I think that's fine. And I see that in our students. And so they give me a lot of hope. I'll go back to the students walking around the cops, the climate meeting, and the questions they ask are not the questions I ask. Does that mean that the wrong questions? Absolutely not. It probably means they're the right questions. Well, Richard, you know, if you look deeply in their eyes, you might see the next president or a president coming soon in your own class. So it's very important work you're doing. Richard Wallsgrove, Professor of Law at UH Manoa. Thank you so much for coming on the show. Thank you, Jay. It's been fun. Can't wait to hear more of the discussion as you talk with other folks. Yeah, well, I'd like to circle back with you. We'll do that soon. Yeah, take care. Take care. Bye-bye.