 Good afternoon. Welcome, everyone, to the 2021 Hot Topics in Environmental Law Summer Lecture Series. I'm Jenny Rushlow, Director of the Environmental Law Center and Associate Dean for Environmental Programs here at Vermont Law School. We're very pleased to welcome you to our presentation today. If you're looking for CLE credit, you can get one credit in Vermont. And so please keep track of which talks you attend for your records if you'd like to claim that credit. We will have time for Q&A after the presentation today and you can type any questions that you have in the chat box at any time during the lecture and we'll get to as many as we can in the remaining time. Today, we are very pleased to welcome Professor Robert Percival. Professor Percival is the Director of the Environmental Law Program and Robert F. Stanton, Professor of Law at the University of Maryland, Francis King Carey School of Law. He served as a law clerk for both the Ninth Circuit and for the Supreme Court Justice Byron White and spent six years as an attorney for the Environmental Defense Fund. Notably, he is the principal author of the most widely used environmental law casebook. He was a Fulbright scholar at the China University of Political Science and Law in Beijing and has worked with China's Supreme People's Court, the National People's Congress, the Chinese Ministry of Environmental Protection, and the China Council on International Cooperation for Environment and Development. We are very lucky that Professor Percival has taught in previous summer session programs here at VLS. Today, Professor Percival will present a talk titled, How Will a Decidedly More Conservative Judiciary Affect the Future of U.S. Environmental Law. Please join me in welcoming Professor Percival. Hi, good afternoon. I wish I was able to do this in person this year, but hopefully next year I'll be able to do that. I just have to, there we go. Do you? I have to share with that. Okay. Here we go. Okay. The topic I'm going to talk about is inspired in part by what's happened in recent years as a much more conservative majority has taken over at the Supreme Court. And I wanted to start by going back a little over five years. At the beginning of 2016, Chief Justice Roberts, who has worked mightily to preserve the court's reputation as a nonpartisan institution, was bemoaning the fact that the confirmation process for justices had become so contentious. He said that we don't work as Democrats or Republicans, and it's very unfortunate if the public gets that impression. However, just a few days later, the court in an unprecedented action in February of 2016 intervened to block the Obama administration's regulations to control greenhouse gas emissions from going into effect, even though they had the legal challenges to them had not been heard in the D.C. Circuit, which had denied the stay. It was a five to four vote with Justice Kennedy, who had been the swing vote on the court at the time, joining the four conservatives to not only block it by saying that it could never go into effect until all appeals had been exhausted at the Supreme Court. That was viewed as very ominous for the future of EPA's regulations. Just four days later, though, Justice Galea died suddenly on February 13th, and that meant that the court was split right down the middle with four justices who were favorable towards environmental regulations, four justices who were skeptical of them, with Justice Kennedy often being the swing vote. It meant that President Obama could tip the balance on the court. Now, the Senate was in Republican hands and some of those senators said, well, Obama's going to appoint a fierce partisan liberal to the court. In fact, Senator Orrin Hatch said, what he really should do is appoint Merrick Garland, who was then on the D.C. Circuit, because that would be a very acceptable moderate choice. Obama did exactly that. But then Senator Mitch McConnell, the Senate majority leader, changed his tune and said that even though it's only March of 2016 and the November election is long time off, we're not even going to meet with Merrick Garland because we don't want to let Obama fill this seat. Now, I really think the Democrats should have pushed back a lot more in the lead up to the 2016 election. McConnell's excuse was that because this was an election year, American voters should decide who will choose the next justice by casting their ballots for president. And the Democrats were pretty confident that Hillary Clinton would be elected. That turned out to be overconfidence. And in fact, after Trump is elected, he quickly nominated Neil Gorsuch, the son of former EPA administrator and Gorsuch Berford, who had resigned in disgrace in the early days of the Reagan administration. Now, to get him confirmed, he still had to deal with the Senate filibuster rule. The Democrats had changed the rule because McConnell had been blocking all confirmations of judges. So they eliminated the filibuster for Court of Appeals judges and lower court judges, but not for Supreme Court justices. The idea was this is such an important position that you should have to get 60 votes in the Senate. But when it became clear that Gorsuch was not acceptable to any of the Democrats, the result was the Republicans eliminated the filibuster for confirmation of Supreme Court justices. And that's the way in which Gorsuch was confirmed. Now, of course, there's a lot of debate today. Should the filibuster be eliminated entirely? It hasn't been, but it has been for confirming Supreme Court justices. Then in 2018, President Trump succeeded in persuading Justice Anthony Kennedy, who had been the swing vote on the court with Gorsuch on the court. Now, if there was any swing vote, it was Chief Justice Roberts, but the balance was a tip six to five, four, five to four in favor of the conservatives. It turned out Kavanaugh had clerked for Kennedy, and Kennedy was very enthusiastic about being replaced by Kavanaugh. So Kennedy agreed to step down and Kavanaugh got the nomination. Now, we know he had very contentious confirmation hearings. I won't get into the details of that. They still have left a legacy where the FBI investigation of his sexual assault allegations against him turns out to have not been as thorough as had been promised. But after Kavanaugh was confirmed and by the barrister majorities, Chief Justice Roberts again emphasized that the court was going to preserve its independence. It turned out President Trump pushed back against that and said, you're wrong. We do have Obama judges on the court who are biased, and Chief Justice Roberts pushed back against that as well. So during the court's 2019 to 2020 term, the court starts its term on the first Monday of October every year, this is what the court looked like. There were five conservatives and four liberals, Justice Sotomayor, Kagan, Ginsburg, and Breyer. So you had five justices, skeptical of environmental regulation, four liberal justices sympathetic towards it. Now in that term the court surprised some people because in a couple of cases, Justice Kavanaugh and Chief Justice Roberts joined together with the liberal majority in avoiding decisions that would have had a huge impact negatively on our environmental laws. One was the county of Maui case where the court was being asked to rule that any discharge of water pollutants that touched groundwater was exempt from all permit requirements. And it was pointed out this would just allow a lot of industrial dischargers to relocate where their discharge pipes were and really gut the clean water act. Instead what the court said in an opinion actually by Justice Breyer by a six to three majority with Kavanaugh and the Chief Justice joining the liberals was that you should look at whether or not the discharge was the functional equivalent of a direct discharge and Kavanaugh explained that he actually was following dicta in the Rapano's case that Justice Scalia had written to reach this fairly moderate result. In another case that was kind of surprising, a major polluter that had created that purchased the former smelter that it wanted to revive the Atlantic Richfield Corporation had created a huge superfund site and residents in the area had sued under Montana state law to get damages for the damage to their property and the Atlantic Richfield Corporation argued that using a very creative interpretation of the superfund statute, the Comprehensive Environmental Response Compensation and Liability Act, all these suits should be barred and what the court did and I think there were two very significant amicus briefs because it showed that even the right-wing legal think tanks were split because this case affected states' rights and property rights. The Washington Legal Foundation filed a brief saying, everything Arco says is right, but the Pacific Legal Foundation filed a brief that said it would be outrageous to preempt the state law that allows victims of pollution to recover for damage to their property. There was concern about whether or not EPA's authority to supervise superfund cleanups would be affected, but the court in a very moderate decision said not only is state law not preempted, but you do have to at least get permission from EPA if you're going to do a major remediation. Again, a moderate decision by the court, Pacific Legal Foundation explained that property rights should also enable landowners to protect themselves from pollution. Now in September of last year, people were stunned to hear that Ruth Bader Ginsburg had died. She had been in the hospital for quite a while, but it looked like it wasn't life going to do her in, but she died less than two months before the presidential election. She had been the justice that was most favorable to environmental interests on the court at the time. I wrote this piece for the November-December Environmental Forum that explained all her great rulings for the environment. And in the height of hypocrisy after the Republicans had said that we have to let voters decide who the next justice should be after Garland was nominated, President Trump immediately nominated Amy Coney Barrett, judge on the U.S. Court of Appeals for the Seventh Circuit, and she was confirmed in record time as this chart shows it only took 30 days for her confirmation. And that solidified a six to three conservative majority with the three most recent judges, Gorsuch Kavanaugh and Barrett, having been nominated by President Trump. Notice that President Obama, who put Sotomayor and Kagan on the court in eight years as president, only got two justices, but Trump, because of the way the Senate was manipulated by Senate Majority Leader Mitch McConnell, got three conservative justices on the court in his one four-year term. And notice these justices were all confirmed, Kavanaugh by 5048, Barrett by 5248 by very slim majorities, ones that would not have been possible, but for elimination of the filibuster. Now, this is the Supreme Court today. This photo actually was just taken a couple of months ago, all last year during the term, the court had the old photo on their website with Justice Ginsburg. Why? Because the court building was entirely shut down due to COVID. The arguments were done remotely. And one good thing about that is we could all watch them on C-SPAN. And the court still hasn't announced whether or not they're going to have in-person oral arguments in the fall. I certainly hope they do. I'm giving this talk just a few blocks away from the court on Capitol Hill, where I've lived for the last several decades. And I like to take field trips to the court with my students. Now, wait a minute. Okay. Anyway, cases the court decided last term. Well, some of these environmental cases are cases that don't invoke any ideological split. First environmental case they decided was a case involving a dispute between Texas and New Mexico over water rights. Ironically, in an area that's beset by great drought, this case involved what happens when there's too much water. A tropical storm had hit and so much water came down that Texas couldn't handle it. So New Mexico agreed to store some of it in the Brantley River reservoir. And the question then was two years later, is New Mexico's obligation to provide water to Texas should also include the water that evaporated during that storage. And the court ruled seven to one with Barrett not participating that that was the case. The other big water case they decided last year and water disputes of course are becoming more significant all over the world was a long-running case involving Florida and Georgia with Florida claiming that Georgia was using too much water and it had really hurt the oyster industry in Florida. The court had surprised a lot of people in June of 2018 by ruling five to four in favor of Florida with Justice Breyer writing an opinion that said there must be a way to give them some relief. Case went back to a new special master. That special master said no actually the oyster industry already was in bad shape without any contribution of overconsumption by Florida and this time the court ruled unanimously in favor of Georgia and that kind of ends that saga. And that opinion was the first was a unanimous opinion authored by Justice Barrett. It wasn't her first opinion. Her first opinion was in Fish and Wildlife Service versus Sierra Club. A Freedom of Information Act case involving whether or not the Sierra Club should be able to see the draft biological opinion that essentially was the final opinion in their consultations with EPA concerning a rule on cooling water intakes and their impact on endangered species. There Justice Barrett authored her first majority opinion for the court. Court ruled seven to two with Justice Breyer and Sotomayor dissenting. One interesting thing I saw in that case was that Justice Kagan seems to be building up quite a friendship with Justice Barrett and she joined Justice Barrett's opinion. Justice Breyer argued that even if it was a draft draft by a lot only if it was a draft draft by a lot even if it were a draft biological opinion the deliberative process exemption should not apply in that the Ninth Circuit was correct. In a case that has potentially major implications for climate change although not in the way the court decided it there a lawsuit that's one of the score of lawsuits that have been brought by cities counties and state governments against the fossil fuel industry for denying climate change and deceiving consumers have been brought in state court in Maryland and then the oil companies removed it to federal district court and the court had no problem saying it belongs in state court because it only was a garden variety state law tort claim. The oil company however BP was the lead party in the case argued that actually because they had contracts with the defense department to sell them oil whatever they did the feds made them do it is what I call their defense which is pretty absurd and the US court of appeals on appeal said that's absurd it should go back to we uphold the remand order but then the oil company found this tiny circuit split about what you could review on appeal and that's the issue that was before the court interpreting the statutes governing review of remand orders in federal court. Now given that the BP realized that there's this conspiracy conservative majority on the court they did something pretty extraordinary in their brief they said even though this issue wasn't briefed or argued below we think you should just reach out and say that because climate change is a global problem it should not be governed at all by state common law it should be governed entirely by federal common law and by the way remember in 2011 you said the clean air act preempted lawsuits under federal common law to ask courts to require reductions in greenhouse gas emissions we think the logic of that means that it should also displace or preempt in other words all state climate actions just wipe out all this climate litigation in one fell swoop at oral argument justice Barrett said that would be awfully aggressive of us to do that Barrett's father actually worked for a shell oil company and the court did not do that they did hold that the remand order all grounds for removal could be considered by the appellate court if anything that will just delay that climate litigation but it's not a significant blow to it for now now I think one of the most fascinating cases last year was Guam versus United States this was a case involving a landfill in Guam where it had originally been created by the US Navy when the Navy had complete control of Guam and during World War II and the Vietnam War they dumped all kinds of hazardous waste there including munitions and yet the when the landfill started leaking and polluting a river EPA came after them for violating the clean water act and they reached a settlement and then when Guam turned around under the Superfund legislation and sued the Navy for contribution the federal government said oh that exceeds the statute of limitations because that should have been triggered by the initial settlement of the clean water act action so the question was are circular statutes of limitations triggered when there's a non-circular settlement because the settlement with EPA had been over the clean water act what was remarkable about this case and I covered it for the SCOTUS blog was that there was this extraordinary amicus brief where 24 states 12 of them red states 12 of them blue states all said that the ruling below and the federal government's position in this case would do great damage to federalism and make it much harder for us to reach settlements and remediate Superfund sites and that was so persuasive it was mentioned by Justice Gorsuch at oral argument the actual opinion for the unanimous court here was written by Justice Thomas the court had a really straightforward ruling that they reached in just four weeks uh defying a lot of expectations of commentators and reversed another case they decided last year involved pipelines the pennies pipeline and New Jersey had argued that because the pipeline uh which was going to go from Pennsylvania to New Jersey was going to go through some state park land that the state owned that the 11th amendment which bars lawsuits against states uh should unless they consent to the lawsuits or Congress waves their sovereign immunity um that that should bar this eminent domain proceeding to take the state land very interesting the way the court split here it was a five to four decision notice two liberals briar and Sotomayor joined Roberts Alito and Kavanaugh in the majority Justice Gorsuch Thomas Kagan and Barrett dissented they said the majority essentially said that when they entered the union and ratified the constitution New Jersey gave up its sovereign immunity against eminent domain lawsuits even if they were brought by private parties because the natural gas act had in fact delegated to private parties building pipelines the authority to use the federal eminent domain power another case that they decided right at the end of their term involved credits for blending renewable fuels ethanol into gasoline the US court of appeals for the 10th circuit had said that because the statute uses the word extension refiners who didn't have a continuous hardship they had made an exemption in the clean air act for small refiners that would have economic hardship but when they no longer had that the 10th circuit said that's it you can't get an extension once it's expired however the court by six to three ruled that that's not what congress meant that the word extension didn't say it had to be a continuous uh you had to continuously have the waiver from the clean air rack blending regulations what's interesting about this case is you had the first all female dissent of this term with justice barrett joining justice justice is soda minor and kagan in saying our interpretation of the statutory language is that once you have this exemption and lose it you can't get it back now a case that wasn't an environmental case but that has a lot of implications for transnational environmental accountability was the messley usa versus doe case it involved the alien tort statue and human rights groups had said that messley and cargill knew that the cocoa beans they were buying from west africa were being harvest by children who had been captured and kidnapped and put into slavery and even though they had vowed to do their best to try to eliminate child slavery uh when it's used in the products they purchased the allegation was they hadn't done enough to do that now what's interesting about this case even though all but alito reeled that it wasn't properly brought under the alien tort statute because it didn't allege enough involvement by nestley in the united states to trigger it the court has previously in the keo bell case said the statute doesn't rebut the presumption against extraterritorial applications of statutes and uh but the the opinion was quite narrow it didn't totally wipe out the alien tort statute as many feared uh justices uh kavina and gorsuch would have been willing to do that along with justice thomas but justices uh barrett and chief justice roberts were unwilling to go that far and it also turned out that five of the justice the majority of the court expressed the view in their opinions that the corporations claim that the law of nations international law can only be violated by a government and not a corporation was simply flatly wrong the plaintiffs in this case believe that when they get more specific evidence of what nestley did in the us they may be able to refile this case so again you see this pattern of the court trying to take a moderate position in a lot of these cases a one put case in which they didn't do that involve property rights a california regulation from the agricultural labor relations board required uh farm workers to be given access to union organizers who wanted to create unions of farm workers and the company cedar point nursery argued that this was a taking of their private property uh despite the fact that it only allowed limited access at certain times uh to talk to the employees when they were on breaks the court in expanding taking doctrine said that it was a per se physical taking of property for which the nursery would have to be compensated this was all six conservatives uh in the majority all three liberals in the dissent one area of law that chief justice roberts has not been moderate in is in taking jurisprudence two years ago they overruled the williamson county precedent that stood for several decades to make it easier to bring takings cases directly in federal court and uh the court uh is now moving in a direction of trying to strengthen property rights by expanding what constitutes a taking and by saying this is a per se physical taking that was quite a stretch now what you see the pattern is uh the term before this the two justices who agreed the most were chief justice roberts and justice kavanaugh and you can see that even in last term they were in the majority more than any other justice with close behind justice barrett so what you see emerging on the the court is the conservative block is kind of splitting into two kavanaugh chief justice roberts and justice barrett are being more moderate gorsuch elito and thomas are kind of being hardline conservatives and then you have the three liberals who uh bryer kagan and so to my or now what cases are on the horizon that could have a significant impact on environmental law well there's only one environmental case the court's granted for next term it's going to be argued the very first day first case of the year on october fourth and it follows this long running dispute between the states of mississippi and tenacy it's an original jurisdiction case the court has original jurisdiction over disputes between states and what mississippi argues is that memphis is pumping so much water from this exquisite aquifer that it has caused the water in the aquifer to shift so that it's moving away from the state of mississippi and over in tenacy and tenacy mississippi says you should have to pay for this this is an extraordinary aquifer that uh has been in existence for thousands of years and has some of the purest water around however the special master in this case has said that uh until there's an equitable appropriation of who owns how much water there's no way to resolve the case mississippi rejects that and says if we can just show the waters moving that should be enough this is the first original jurisdiction case involving groundwater another case that will be very important to watch several cert petitions have been filed on the very last full day of the trump administration the dc circuit by a two-to-one vote struck down trump's epa's withdrawal of the obama clean power plan and its replacement with the affordable clean energy rule essentially what this case did was it upheld the legality of the clean power plan saying that the trump epa was wrong when they said the obama epa had misinterpreted it that were barred from regulating power plant emissions by uh section 211 uh 111 d of the clean air act what's interesting about this case is the dissenter in the case was the newest dc circuit judge justin walker his family had been long-term time friends of uh majority leader mcconnell and in fact mcconnell helped broker a deal where a judge on the dc circuit judge griffin took retirement on september 1st to open up this vacancy because they probably suspected trump was going to lose the election and they quickly confirmed justin walker as the youngest judge he had been on a federal trial court for only a few months and in this case he had a blistering dissent saying not only does the clean air act clearly bar this rejecting the obama epa's administration interpretation and embracing trumps but also that no regulations that affect such broad swaths of the american economy can be adopted by epa because of the major questions doctrine that i'll talk about in a moment so the cert petition now of course the biden epa is not appealing this decision but several interveners two states two call groups have filed petitions for certs urari and the court can always grant that and hear it now one thing trump was very successful in doing cooperating with senator mcconnell they created an assembly line to confirm right-wing justices to the court and in fact trump ended up getting 54 appeals court judges confirmed 174 district court judges noticed that obama had more but he was in office for eight years instead of just four a lot of these judges were confirmed on strictly party line votes by just a voter to in the senate many of them had been deemed unqualified by the american bar association my own view in looking at how some of these judges are ruling is that about half of the trump judges are really in the mainstream and not so bad but the other half are going to be advancing all kinds of new theories to make it more difficult for environmental law and of course statistically you can show that trumps judges more rarely disagree with republican appointees and more frequently disagree with democratic ones when there's a split among the just judges in lower court cases now here's the conservative agenda for future conservative judicial action first they want to restrict environmental standing justice barrett for example twice while she was on the seventh circuit sua sponte without either party raising standing raised it on her own and ultimately ruled even though the parties agreed there was standing that environmental interest did not have standing in one case she dropped a footnote saying we're not ecuador where they have a specific rights of nature provision in their constitution the major questions doctrine could also be used to strike down regulations with broad impact it kind of came out of nowhere there had been uh justice thomas in the american trucking case back 20 years ago had said that epa zambian air quality standards which the court affirmed against the non-delegations to challenge unanimously uh he said but in a future case we might rule that because things like the ambient air quality standards affect the economy broadly that essentially you have to get specific congressional approval to do so sort of like judicial creation of something like the reins act where uh conservatives tried to enact a statute that would essentially repeal all the environmental laws authorizing epa to issue regulations and required that any regulations issued had to be specifically improved in advance by congress something of course that wouldn't happen in this time of leg regulatory gridlock legislative gridlock now of course we've seen conservatives are committed to expanding regulatory taking doctrine and uh they may also try to narrow congressional or executive authority to protect the environment by narrowly interpreting the commerce clause or federal statutes an example of the latter would be the antiquities act this year the massachusetts lobstermen association challenged president obama's creation of a broad national monument uh in the atlantic ocean and well the court in the massachusetts lobstermen case refused to grant cert an extraordinary separate statement chief justice robert said that he was eager to get a case that would argue that the size of a monument national monument created by the president was too large and therefore violated a provision in the statute that requires it to be uh the smallest necessary to accomplish the objectives now of course many people have argued over the last several years that the court should get rid of chevron deference or our deference to decisions by agencies like epa i don't think this is such a biggie because i think chevron deference is already pretty much dead and as it's illustrated by the fact that no one asks for it anymore because they know that a majority of the justices are hostile towards the chevron doctrine for example in the maui case epa even though it had initially cited with the environmental group and later shifted its position didn't even ask for chevron deference for their new position our deference was almost eliminated for the court our deference is where an agency interprets its own regulations chevron deference is where an agency interprets a statutory provision as a practical matter no one asks for these anymore because they know that won't get a good reception from the justices so it's sort of weighing around for does the court try to formally overrule the chevron decision i don't think chief justice roberts wants to do anything that will look dramatic but effectively it's already dead now fortunately uh in the november election president biden was elected president and his new administration has because much of what trump did to rollback regulation was done through executive orders they've been able to repeal a whole lot of that how should environmentalists now deal with the new conservative larger conservative majority in the court one thing i think that would be wise to do is to empathize themes that can appeal to conservative justices they're supposed to like states rights and federalism and property rights as we saw in the arco versus christian case where they didn't preempt state laws for recovering for contaminated property uh those are good themes the stated many states like california are allowed to do things that are pro environment like its own program dealing with greenhouse gases that the trump administration tried to revoke the authority for appealing to to conservative justice interests and federalism or property rights would be a good strategy another thing to do would be to build coalitions across the political divide the amicus brief in the guam case was brilliant in having uh 12 red states and 12 blue state attorney generals sticking up for the impact the decision would have on states rights and then i actually was so i was covering the case for scotus blog i was so surprised by that i contacted the attorney who had organized that brief and i said how did you do that and he said well we had lots of people who work for our firm were doing this pro bono who had good um uh entrees to various attorney generals offices and we convinced them on the merits another thing would be to emphasize the real world consequences of radical new interpretations of environmental law that's what happened i think in the mawai case chief justice roberts did not want to have the court essentially repealing a lot of the permit requirements of the clean water act and when that was brought home he and justice cavanaugh joined with the liberals in a moderate decision that didn't do that another thing that would be wise is for environmentalists not to bring cases to the court that are likely to create bad law for example i don't think there's a prayer the supreme court would have reversed the ninth circuit's decision in the juliana case they might have actually used that as a vehicle to greatly restrict environmental standing uh the city of new york lost some of its climate litigation against the oil companies in a decision by the second circuit in city of new york versus chevron on april first i think they'd be crazy to seek supreme court review of that uh that case involved the second circuit panel that actually went so far as to say state climate litigation should be preempted even though it wasn't necessary to their decision uh if you tee up a climate case to this court i think you're likely to get a ruling that all of these cases should be preempted now this is where we stand today with the court notice the oldest justice is justice briar at the age of 83 he served on the court for 26 years justice thomas is the longest serving 29 years on the court uh but he's only 73 uh there's been a lot of pressure on justice briar to retire now because with the 5050 senate and vice president harris's tie breaking vote they could get a new justice confirmed uh justice briar has resisted this the argument being made here in this billboard that they kept having go by the supreme court before it was all fenced off they've now taken down the fences i'm happy to report uh was that president biden has said he wants to appoint the first black woman to the supreme court one thing that's recently happened is federal district judge katanji brown jackson was nominated to the dc circuit and just last month she was confirmed to replace marik garland on the dc circuit it's widely believed that she would have perhaps an inside track to be the first black woman on supreme court if there is a vacancy now uh charles fread who was solicitor general under president reagan even before the election had written this piece saying what you need to do is not expand the size of the court to take it back whether or not you believe it's true that those last seats were stolen by the republicans and incredible entrancedness by uh the uh senate majority leader mitch mcconnell when he was the majority leader of course we know article three of the constitution does not specify the number of justices so that can be changed by statute and uh so what biden has done is he didn't endorse that but he appointed a panel uh to report to him by next november about what can be done and in their early meetings it looks like uh what's being favored is creating term limits maybe changing lifetime tenure so that spring court justice serve 18-year staggered terms so that each president predictably will get two supreme court appointments that seems to be gathering bipartisan support but the problem is that that's probably could only be done by constitutional amendment and it would be hard to have so much bipartisan support that three quarters of the states would ratify such a thing um this conservative plan to weaponize the federal courts was actually to triple the size of the federal courts when uh president trump was in office now i think it's true that the threat of expanding the court has had an impact and as do confirmation hearings if you recall chief justice roberts about the only blip in his confirmation hearing was his comment about the hapless toad in endangered species act case involving whether the endangered species act is constitutional and he said i wasn't saying it was unconstitutional i was just saying let's get our rationale straight since then the court has not agreed to review any of those cases on the constitutionality of the endangered species act so i think confirmation hearings things like having this commission they're likely to make the court more cautious in the meantime that and some uh strategic thinking by litigants can help keep us where we are but god help us if the six to three conservative majority if alito and thomas and gorsuch uh end up being able to persuade a majority of the justices some very bad things could happen for environmental litigants i sympathize with justice bryer because he's now with ginsburg's death the one to be able to assign opinions when the liberals dissent and he's done a very good job in several cases in trying to build coalitions in order to avoid harsher results so i can understand why he doesn't want to retire especially if he feels like he's optimistic about future presidential and senate elections so i will stop sharing my screen now and since i haven't been able to see any of thing button my slides i hope you're all still there i'm here i hope they're there too it's always a little a little bit of a hope and a prayer that was great thank you so much professor percival um for our listeners we do have time for some questions so if you would like to enter question um if you're watching on our website live stream you just click on the icon at the bottom of the video and that will bring up the chat box where you can log in to add your question or if you're watching on facebook live stream add your question to the comment box below and we'll try to get through as many as we can our first question is some people are looking to balance scotus by expanding the number of seats as you discussed are you aware of any environmental groups lending their weight to this movement um good question i i don't think i'm not aware of any that have specifically endorsed that uh it's certainly something that's being widely discussed justice briar has said that he's not in favor of that um i don't think that's likely to happen however um if for example the court suddenly said environmentalists have no standing to bring citizen suits and just knock them totally out of court on constitutional grounds which of course was justus galia's uh longtime enterprise that justice ginsburg defeated in the laid law case i presume that that would create such a harsh reaction that there would be a lot more political support for it same thing with respect to roe v way the state of mississippi has now explicitly asked the court to overturn roe v way the senators who were crucial to confirming justus barrett said there's no prospect this court will do that if it goes ahead and does that then i think all bets are off but for now i don't think the environmental groups have gotten down in the weeds and taken a position about the number of justices of course you know you could expand the size of the court and then uh biden could lose reelection and then you could see uh all kinds of even more conservative appointments being made to a future larger court that's one of the problems with it is that it can then get into the sort of tit for tat the democrats expanded the court by four justices republicans then say let's expand it by six and it's a constant mess and it undercuts the legitimacy of the court which is not supposed to be a political institution okay thank you um next first of all we have a compliment from your friend professor parento who asks odds the court grants the coal industry cert petition in the american lung association arguing that epa can't regulate greenhouse gas emissions from power plants under 111 d because they're regulated under 112 um well i don't think chief justice roberts is going to be a big fan of that especially since the biden administration has not unveiled what its plan is going to be and it's clear there's going to be regulatory change in this area i think justices elito and thomas would be big fans of granting that uh you'll recall that the massachusetts versus epa decision in 2007 was by a five to four vote and the only justice who was in the majority who's still on the court is justice bryer so many people have said that could be vulnerable if you open up the whole issue of does the clean air act permit any regulation of greenhouse gases now chief justice roberts was in the dissent in that case he has come to accept massachusetts versus epa uh so i don't think i think that's something that would send such a radical signal so i they only need four votes for cert so uh justice barrett could join with elito and thomas and cavanaugh if they wanted to open uh that can of worms um so i it's very rare that the court grants a case where the government lost below and the government's not asking for cert but there was a four circuit decision in edf versus epa where epa had lost and a case involving the new source review provisions of the clean air act and the court did grant and reverse the four circuit so it's not impossible okay thank you you referred to the recent departure from chevron deference uh in the in the u.s supreme court is that something that you're also seeing in the lower federal courts or state courts um good question i uh i really i i i can't give a confident answer because i've been so focused on the supreme court but of course the lower courts follow what they believe to be uh the current state of the law in the supreme court and many many of these trump judges amy coney barrett when she was on the seventh circuit had contempt for both chevron and our deference and so i it certainly has to be trickling down now now of course one positive thing that i didn't mention much is that president biden is now appointing federal judges so while it's true that at the present time one quarter of all federal judges in the u.s were appointed by president trump that is going to start changing as long as the democrats have 50 seats in the senate so uh there will be this will be sort of self-correcting at least in the short run um i don't think yeah i've always thought of chevron deference as kind of a fig leaf that the justices said that a statute was ambiguous when they wanted to rule in favor of the agency and that would trigger chevron deference which would give them a rationale for doing so and even the most ambiguous statutes if they didn't like what the agency had done they'd say no it's crystal clear and rule against the agency so i i'm not all that convinced that this is a be all and end all uh if you whichever way chevron deference goes thank you i think we have time for one more question um when when the democrats failed to get merit garland appointed many viewed that as a kind of a a downfall of the democratic party do you see that and what subsequently happened when um president trump came to office and and did his judicial appointments do you see that as something that was unavoidable for the democrats or was there some was there a death knell in their strategy that caused this to happen well i think um it really brings home the point uh that you can't take anything for granted i think what happened was almost all democrats thought our new president will be hillary clinton she may nominate to the court someone who will be even more liberal than merit garland and we saw how spectacularly that backfired so it shows why you absolutely cannot take anything for granted just like uh justice ginsburg took for granted that she was confident she could live uh beyond the inauguration of a new president uh one reason i think bryer doesn't want to retire now is that he's confident that this is not going to cause a problem he also thinks that it makes the court look more political if resignations are timed so that they coincide with periods like this where one party can get someone confirmed now my old boss justice white uh was appointed by president kennedy he was a good democrat who had campaigned for kennedy in the 1960 election and when right after bill clinton was an operated president uh justice white sent a resignation letter saying i will stay in the court until my successors confirmed setting in motion the process by which he was replaced by justice ginsburg and uh i actually once asked white do you care who replaces you on the supreme court and he said are you kidding i'd like to be able to pick this my successor myself and i i when i uh first time i met justice ginsburg i told her that story and said i'm sure justice white would be uh very pleased with your appointment even though he turned out to be far more conservative uh in some things he was one of the two dissenters in roe v wade he dissented in the famous maranda case involving giving warnings to criminal suspects uh but he was terrific on civil rights and uh felt like i think once clinton was in office he was happy to be have his successor uh appointed by president uh clinton so uh the democrats could have raised holy hell and constantly bombarded the republicans and mcconnell about their unprecedented assault on the advising consent process that they did when they didn't even get garland hearing but there were forces within the party that were overconfident about the 2016 election and i think uh it all backfired spectacularly in their faces and we're now left with for the next few decades a pretty strong conservative majority on the court um so you know hopefully uh if we think strategically uh there won't be that many opportunities for the court to do major damage to the environmental laws but if i was a betting person uh i would say the odds aren't that great on that i like how you tried to make it positive at the end but just couldn't couldn't quite get there it's a kind of silver lining you're younger than me so i have a prospect that uh i may not outlive the conservative court because so many justices are younger than me now but i i'm optimistic for you let's put it that way well maybe some lessons will be learned about you know justice ginsberg's uh overestimation of her ability to make it to the end of the term and and some of the other things you pointed out where uh people took things for granted so maybe we'll see some reactions in that direction that that will help no in any case that works changed when when when i was clerking there you couldn't predict in advance how cases were going to come out there was no clear ideological split the justice uh white would always have two clerks read anything that came from rinquist chambers because he was the conservative ideologue who had just been put on the court but other than that you know it was a very different court than now where you can just basically count the votes in advance in a lot of these cases i'm glad you said that i was thinking about asking that but that's really interesting that that wasn't that long ago that that it was that different it's been a huge huge shift in just part of your lifetime yeah well uh we have some students who need to get to class at one so we we better wrap up um thank you so much professor perspel for that really interesting presentation and your your personal experience with the court and thanks everybody who joined us today we'll have hot topics talks the rest of this week and next week um next next one being this thursday at noon july 29th and we'll hope you'll join us then right here thanks everyone