From Russia Without Love: U.S. Energy Policy, Environmental Goals, Foreign Wars, and the Administrative State

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Guy DeSanctis:  Welcome to The Federalist Society's webinar call. Today, May 18^th, we discuss From Russia Without Love: U.S. Energy Policy, Environmental Goals, Foreign Wars, and the Administrative State. My name is Guy DeSanctis, and I'm an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are fortunate to have with us our moderator Honorable Ryan Nelson, Judge United States Court of Appeals, Ninth Circuit.

 

Throughout the panel if you have any questions, please submit them to the Question & Answer feature so that our speakers will have access to them for when we get to that portion of the webinar.

 

With that, thank you for being with us today. Judge Nelson, the floor is yours.

 

Hon. Ryan Nelson:  Thank you. We have a broad and timely topic to cover over the next hour. Our energy policy has always been hotly debated, but Russia's recent and ongoing war in Ukraine has created a seismic shift in the geopolitical landscape. Virtually every country, including the United States, is reevaluating its energy policy. And we're doing it with a different calculus than just a few months ago.

 

      Certainly policy makers are scrambling. Gas prices are the highest they've ever been. Every state's gas prices are currently above $4.00 per gallon for the first time ever. And on the international front, the world's reliance on fossil fuels has created a major problem. While we're sending billions of dollars in aid to Ukraine to fight the war, Russia has doubled its revenue from oil sales since the war started. So as we increase our funding to Ukraine, Russia is also receiving increased funding as well.

 

      Dealing with the legal and policy questions that U.S. energy policy, environmental goals, and national security concerns raise, especially in a rapidly changing world may be some of the most difficult questions we face today. My goal today is to lean upon the knowledge and expertise of our wonderful panelists to give us a better sense of our current state of affairs and let them tell us where they see us headed. With that, I'd like to introduce our speakers.

First we have Tristan  Abbey. He's the President at Comarus Analytics LLC. He served for more than a decade in senior Republican policy roles related to energy and the environment in the United States Senate and the White House.

 

Eric Grant is a Partner at Hicks Thomas LLP in Sacramento where he focuses on energy and environmental litigation. From 2017 to '21, he served as Deputy Assistant Attorney General in the Environment and Natural Resources Division at the U.S. Department of Justice, a role I'm somewhat familiar with a well. In that role he represented the government in the Juliana litigation, and he served as a law clerk to Chief Justice Warren Burger and Associate Justice Clarence Thomas and argued cases in the United States Supreme Court, the California Supreme Court and numerous other federal and state appellate courts.

 

And Julia Olson is the Founder, Executive Director, and Chief Legal Counsel of Our Children's Trust, a nonprofit public interest law firm that provides strategic, campaign-based legal services to youth from diverse backgrounds to secure their legal rights to a safe climate system. Julia is Co-lead Counsel in the Juliana litigation. And as a result of her human rights and environmental justice work, Julia has won numerous national and international awards, most recently the 2022 Katharine and George Alexander Law Prize given by Santa Clara University. And she was named as one of Bloomberg's Green 30 for 2020.

 

With that, we're going to start with five to seven minutes for opening remarks from each of our panelists, and then we'll allow each panelist to then have about two to three minutes to respond after opening remarks. And we'll go ahead and start with Mr. Abbey.

 

Tristan Abbey:  Thank you, Judge. It's an honor to speak at this webinar, and I look forward to a lively discussion. There is not much I can say about Russia and Ukraine and energy that you probably haven't already heard about on the news or read in the papers. But maybe I can provide a different spin on what you've already heard that may fuel some different lines of thinking and inquiry.

     

      I see basically four major questions that emerge from this war currently underway in Ukraine. We've seen the most widely publicized sanctions regime being imposed on a country by other countries in decades. It really does remind us of the sanctions regimes that were put in place during the Cold War, East versus West, on the embargos that were put in place during the World Wars -- those were actually hot conflicts -- on Napoleon and Britain fighting each other on the high seas and besieging either the island or the continent of Europe.

     

      So I think that this is a historic moment in many respects. I think one huge question that emerges from the sanctions regime that has been imposed is how durable is it for the future. In other words, countries that we may want to impose sanctions on in the future will be looking at this current scenario and learning lessons from it and probably trying to strengthen the resilience of their own economies against similar type sanctions regimes in the future.

     

      It's a question of how do countries adapt to what they're seeing unfold today and whether these very powerful financial authorities that we have will be as successful as they have been either in this case or in the case of North Korea or Iran and in other regimes that we've seen be imposed over the past couple of decades.

 

      The second big question that emerges for me is whether the shift that we've seen in Europe vis-à-vis its own defense proves durable. We have seen several western European countries and of course those in the east and elsewhere in Europe deploy forces. This may be a more robust defense posture than we have seen out of Europe for quite some time, perhaps, depending how you look at it, since Operation Enduring Freedom in Afghanistan after 9/11. This may not be so surprising considering that this is in some respects a defense of their own territory, depending on how you define Europe. But it's certainly far, far, far closer to home for them than Iraq, Afghanistan, Somalia, the Gulf of Aden, and other places where they've been called upon. How durable is this strengthened defense posture? Does it foretell, portend greater defense spending over the next decade, or is this a flash in the pan?

 

      Third question that emerges for me -- out of four, so don't worry about having a long list here -- is the durability of the shift that the judge referenced in respect to energy portfolios and the mix of types of energy sources that countries are willing to use to fuel their own economies. There's obviously been a lot of chatter about reviving nuclear energy in Europe. There's been chatter about buying more natural gas from the United States or Qatar or Australia. There's been chatter about opening up production either here or elsewhere. There's been chatter about diversifying away from Russia. I think the question is does that chatter lead to concrete action. It's a lot easier to say that you want to reduce your reliance on Russian energy down to zero percent than it is to actually do it.

 

This is also seen -- we've also seen, as a result of this scenario, something that I think policy wonks have always known, which is the limits of federal authority over U.S. energy markets. There is no single official in the U.S. government who's able to say, "We will export more LNG to Europe tomorrow." There's nobody who has the power to do that.

 

And then finally, the fourth of four big questions that emerge for me is what effect this has on what some may call the reframe on China in U.S. policy circles. Over the past several years, four or five years, depending how you count, you've seen a number of bills be enacted into law related to the great power competition, as some refer to it as, offering more authorities to the executive branch vis-à-vis financing, investments, overseas deployment of capital, all in an effort to, in some sense, respond to China's rise, the Belt and Road initiative, and other related questions that you can certainly read more about all over white papers and essays published by almost anything you can possibly imagine.

 

The question is does this reframe on China from say mostly trading partner, mostly potential ally or friend, to something more complicated, does that endure in spite of all the attention that has been put on this Russia Ukraine situation. D.C. is not a city that is good at doing more than one thing at the same time. And we will see what that means for the future.

 

So those are my four big questions, and I look forward to a very lively discussion about any, none, or all of them.

 

Hon. Ryan Nelson:  All right. Thank you. Eric, do you want to go ahead?

 

Eric Grant:  Thank you, Judge Nelson, and thank you to The Federalist Society for inviting me. As Judge Nelson mentioned, I spent nearly 4 years in the leadership of the Environment Division of the Justice Department during the Trump administration. And in accord with the policy priorities of our client agencies that leadership team sought, through litigation, to enhance the energy independence of the United States consistent with statutory mandates for clean air, clean water, and clean land. Thus we defended pipelines, electric transmission lines, and other infrastructure permitted by our client agencies while also prosecuting polluters.

 

Prior to 2022, energy independence and infrastructure seemed, to some at least, like partisan, Republican slogans. But Russia's brutal invasion of Ukraine and the awful realization that the United States and its European allies were helping to finance that invasion by buying oil and gas from Russia has perhaps made energy independence something of a bipartisan goal. And the $1.2 trillion Infrastructure Investment and Jobs Act that became law in late 2021 was a Democratic brainchild opposed by Republicans mostly because they judged that too little of the authorized funds would be spent on actual infrastructure.

 

In addition to the rough consensus about energy independence and infrastructure, I observe a rough consensus on the desirability of moving to a low-carbon economy. In popular conception, that move entails electric cars, solar power, and wind power. What do those things entail? Well, electric cars require lithium ion batteries that contain lithium, copper, and other minerals. Solar panels require copper and massive amounts of aluminum. Wind turbines likewise require copper and aluminum plus nickel. And all of these require a reliable electric transmission grid.

 

You may have heard me repeat copper, which is ubiquitous in the high tech, low carbon future. Where will we get all of this copper and other minerals? Sometimes they can be obtained by unconventional methods from unconventional places, for example, evaporitic extraction of lithium from the brines below the vast salt flats of Chile. But mostly, we will get these minerals by digging them out of the ground. In a word, we will mine them.

 

Felicitously, Rosemont Copper Company sought approval from the U.S. Forest Service to dig a large, open pit copper mine on federal land in Arizona, predicting that the mine would produce nearly 6 billion pounds of copper over 25 years. After favorably assessing Rosemont's proposals for a decade that overlapped all the Obama administration, the Forest Service and other federal agencies granted the necessary approvals at the start of the Trump administration.

In the end of the Trump administration, the Bureau of Land Management approved a proposal to mine lithium on 1,100 acres of federal land in Nevada, assertedly the largest lithium mine in the country. And so far, the Biden administration's vigorously defending that approval.

 

That brings me to the cases. Plaintiffs challenged the Rosemont mine under NEPA, the ESA, the Clean Water Act, and the Mining Law of 1872. The district court vacated the project approvals under NEPA, the ESA, and the Mining Law. It did not even need to reach the Clean Water Act. The Ninth Circuit recently affirmed that decision under the Mining Law. It did not even need to reach the environmental statutes. In the Nevada lithium mine litigation, the challenging plaintiffs likewise rely on NEPA among other federal statutes.

 

Let me mention two more cases that concern energy independence and infrastructure. Under the Clean Water Act, the U.S. Army Corps of Engineers has issued Nationwide Permit 12 to authorize dredge and fill activities necessary for the construction and maintenance of utility lines, including oil and gas pipelines. In litigation challenging the Keystone XL pipeline, before it was cancelled by President Biden, a district court vacated the entirety of Nationwide Permit 12 on the basis that it was issued without complying with the ESA. Only an extraordinary stay application to the U.S. Supreme Court forestalled massive interference with construction and maintenance of utility infrastructure throughout the country.

 

Finally, the 1,200 mile long Dakota Access Pipeline has safely operated for five years, now carrying 570,000 barrels of oil per day. Yet, in litigation challenging the Army Corps [audio cuts out 00:16:01] shut down and drained. The D.C. Circuit vacated that injunction, which suggested that the district court could reissue it with a proper finding of irreparable harm which fortunately could not be made.

 

I litigated three of these four cases, but my purpose today is not to relitigate them. My purpose is to suggest that a roadblock stands in the way of energy independence infrastructure and a low-carbon economy. And that roadblock is federal environmental law, principally, NEPA with the ESA in close second.

 

But don't get me wrong. My solution is not to repeal these statutes nor is it to promulgate better implementing regulations. No, my solution is much more modest. Amend these statutes to bring them into the 21^st century. NEPA was enacted in 1970, but it was last amended in relevant part in 1975. The ESA was enacted in 1973, but its major provisions have not been amended since at least 1988. We're all familiar with the Clean Water Act enacted in 1972, but its key jurisdictional definition of navigable waters has never been amended.

 

And doubtless your proposals to amend NEPA and the other statutes will differ from mine, and I don’t propose here to tackle the myriad of difficult issues. But I will hazard one modest proposal. Enough with the notion that every environmental impact statement must duplicate the latest IPCC report on global climate change. And EIS should inform decision makers and the public how many barrels of oil or cubic feet of natural gas will be extracted and stop trying to predict exactly how and when and where those volumes would be translated into so called downstream emissions. The increasingly detailed predictions increasingly mandated by courts like the Ninth and D.C. Circuits provide no useful information. As Judge Nelson pointed out in a recent dissent, NEPA is encouraging courts to address "a global issue better left in the first instance to political branches, not the judicial branch."

 

My bottom line, if we want a 21^st century energy independence, 21^st century infrastructure, and a 21^st century low-carbon economy, we need a 21^st century NEPA and a 21^st century ESA.

 

Hon. Ryan Nelson:  Thank you. And Julia?

 

Julia Olson:  Good afternoon. Thank you, Judge Nelson, for your introduction. And thanks to Adam and everyone at The Federalist Society for coordinating and inviting me to participate today. I appreciate it.

 

      I'll start with a little bit of a different frame and go to the national security threats that we face. Obviously, Russia's invasion of Ukraine that we are watching is an extraordinary effort by a leader of a superpower to commit war crimes and have blatant disregard for the lasting scars that human rights violations to the people of Ukraine will have, especially it's children and then the global, the world itself.

     

      I think the growth of autocracy and threats to democracy that we're seeing are obviously rising globally, and Putin's war represents a complete lack of respect for both international law and sovereign soil. So this is a recognized threat to the United States national security undoubtedly.

 

      At the same time and for decades preceding this war, we have also had another rising threat to national security, and that is worsening everyday as well. The Department of Defense, our military intelligence, and national security communities have been saying for at least two decades that a climate change is one of the most significant threats to national security.

 

      Interestingly, what a lot of people don't know is that some of the earliest scientific research that led to the conclusive findings that burning fossil fuels is destabilizing the earth's climate system and causing catastrophic threats was actually initiated by the U.S. Navy after World War II. So a lot of the science comes from our military, comes from the fossil fuel industry itself, and it comes from eminent scientists both in government and outside of government.

 

And all of these experts from military experts to scientific experts, leading politicians, presidents, since at least the Lydon B. Johnson administration, have recognized that human caused climate change is upon us and projected the security threats that we're seeing today. The uniqueness of this moment is now in the 21^st century we are at a precipice where we're poised across thresholds where we can't undo the harm that's been done nor protect future generations from increasing harm.

 

I'll just refer a couple of Department of Defense reports, the 2014 Defense Quadrennial Review said that the pressures caused by climate change "are a threat multipliers that will aggravate stressors abroad such as poverty, environmental degradation, political instability, and social tensions, conditions that can enable terrorist activity and other forms of violence."

 

In 2019 under the Trump administration, the Department of Defense reported to Congress that the effects of a changing climate are a national security issue with potential impacts to Department of Defense missions, operational plans, and installations. And specifically in that report, the Department said that because of climate-caused recurrent flooding, drought, and wildfires, there was concern and threats to 79 installations, at least identified as of 2019, so military installations threatened by the climate crisis. So abundant support within the national security community to treat climate crisis as an urgent threat and to take action to address it.

 

I come to this story from the perspective of representing young Americans who are already being harmed by the climate crisis here in the United States. And indeed, in addition to the overall threats to our nation and our national security that the crisis poses, it really specifically, in terms of individual health and individual liberties, it's harming pregnant women and their fetuses. It's harming newborn babies. Children whose brains and bodies are still developing but really the most vulnerable groups of people here in the United States.

 

And I'll focus just on one aspect of that, and it's the increasing heat. The direct pollution from burning fossils fuels but also the increasing air pollution from the climate of fire smoke that many people are now living with year round. And what that's causing is increased rates of miscarriages, low birth rates, heat stroke in our children, respiratory illnesses in our children, and then also leading to increase in autoimmune disorders and infectious diseases.

 

So what I've noticed in the about 15 years ago working in this space is that apart from the military and the national security intelligence communities, I think our medical communities and our pediatricians in particular are some of the most concerned members of society calling for this urgent transition.

 

My perspective on both of these national security threats, the war in Ukraine and climate crisis is that it's not a binary choice. There's a real opportunity right now to both support Europe with its urgent needs in this short term situation. There's also an ongoing need domestically and for European countries domestically to really double down on transitioning to those clean energy systems and working through the types of issues that Eric and Tristan have raised to do so.

 

So I don't buy into this notion that it's an either or choice. And in fact, one of the first things that energy experts in their plans that are already developed -- we have the technology. We have the knowhow to do this. What they say is electrifying transportation is the easiest lift. And Eric identified some of the things we need to do to do that. What's interesting about this, -- and it goes to this point about having these 20^th century laws impeding what we're doing today from your perspective -- President Nixon called for electrifying transportation in the early '70s. And we have had the technology to do this for decades and decades. And it hasn't been done because our current laws and the money in our system and our subsidies go to keeping fossil fuels in place.

 

So my question is what do we do right now in this moment, and how to we rise up as a nation for the sake of young people and children who really depend on the right choices being made now to address both of these national security threats. And I look forward to the conversation. Thank you.

 

Hon. Ryan Nelson:  Okay. Well, why don't we take two or three minutes, and we'll start -- Mr. Abbey, you've heard everybody speak. And maybe you could address whatever you were impressed with with what you've heard, but maybe Miss Olson's last question is a good place to start if you want to address that.

 

Tristan Abbey:  Well, I found both opening remarks absolutely impressive. I think that this is actually a great conversation to have right now. Having worked at the National Security Council and on Senate staff, I've certainly heard about the effects of a changing climate in terms of U.S. National security documents, all over the place from Quadrennial Defense Review to DOD budget proposals, hearing testimony. And I think it's always been a challenge for me to differentiate climate change as a national security issue, the effects of climate change as a national security issue, and the ability for any of the policies that we have proposed, either in regulation or in law, to actually reverse those effects.

 

      Often you will hear concerned scientists and policy makers talk about how long term the effects of greenhouse gases will be in the atmosphere, how they last for decades or even centuries, depending on who you talk to. And if that's the case, then it really does seem that nothing that we do right now will have much of an impact in the near future. And if that's the case, then I think that forces us to answer a different set of questions. And it certainly changes our timelines on how we respond to things like Russia invading Ukraine.

 

      I would also like to commend Eric on his excellent exposition of cooper and other minerals that are absolutely critical to U.S. national economic security and the fact that the United States mines almost nothing for so many of them and imports half or more for a lot of them and then imports almost all of some from one particular country, and that is China. So I'm happy to continue the conversation, but I figure that will get the ball rolling.

 

Hon. Ryan Nelson:  Sure. Eric, do you want to take a few minutes?

 

Eric Grant:  Sure. I'll probably sound like Johnny One Note, but my perspective representing the Forest Service for almost four years and talking to foresters is that the fires were not caused by climate change. The fires in my opinion were caused by NEPA. One example, in the 1.6 million acres Santa Fe National Forest, the Forest Service spent more than 10 years trying to get approval to thin, not to clear cut, merely to thin and do some prescribed burning of that small percentage of the forest to prevent these kinds of forest fires that in that case would have destroyed the water supply of the City of Santa Fe. With that I'll yield the floor.

 

Hon. Ryan Nelson:  All right. Miss Olson?

 

Julia Olson:  Good going there, Eric. I think what we need to bring into this conversation if we're going to talk about cause and effect and the role of the courts is when there are Constitutional rights at issue. So individual American citizens are suffering injuries, and there's evidence that shows a real causal chain between conduct of our government and the injuries to someone's health and wellbeing and safety and security in their home. Those are questions that courts can review.

 

And it's great to be able to set the record straight in this forum that we actually have never sought and don't expect one federal judge to take over the energy system or energy policy of the nation. That would be too much to ask of a single judge. What we do ask the judges to do is step in and review the evidence, hear from the scientists, hear from the experts, and make findings of fact and declare that the constitution does require or doesn't require.

 

And when I was preparing for this, one thing I did was go back and look at Youngstown. And Justice Jackson, who dissented in Claremont II, wrote one of the most concurrences in Youngstown, and wrote the majority opinion in Barnette, says that even in a time of war, even when the president had declared war against Korea, and even when Congress didn't support it, but we were actively engaged in war, which we are not currently, the courts could even step in and review whether it was appropriate for the president to basically demand, take over the steel companies and demand that they use their companies for the benefit of the war. And that's done carefully, and there are tests and there are standards so that they were put in place. But it is vital.

 

We can look at the COVID pandemic and how often courts were willing to step in on an issue of health, safety, national security, individual liberties, a global pandemic to step in and review whether and when individual's fundamental rights under the Constitution were being infringed. And in fact, as you know, there's a nationwide order taking over what we do with air travel on that issue.

 

So I think the importance is it's vital that courts hear from judges -- sorry -- that courts hear from experts and really take a careful look at the facts, and then apply federal constitutional law to those facts, particularly here where children are being harmed and where there are viable solutions to move away from fossil fuels. Thanks.

 

Hon. Ryan Nelson:  Okay. Well, let's move into some questions. I've got a couple of questions I can pose, and then it looks like we've got some questions coming in already. I guess one question -- and I don't know who to direct it to. Maybe, Julia, you could take a stab at this. As Eric said, Congress hasn't passed any new environmental laws for decades now. Do you believe that the courts, given that status quo that doesn't seem to be moving, do you believe the courts should interpret environmental laws more liberally than they would other laws? And if so, what is the basis for that position?

 

Julia Olson:  Judge Nelson, it might surprise you to hear this. I actually like a textualist analysis of our statutory laws. I think it's helpful to look at the language. I would then, if there's a lack of clarity, I do think sometimes the history at that moment and the legislative history is important to look at as a whole not piecemeal.

 

      So I don't think this is about interpreting environmental laws more liberally, less liberally. I think the laws we have need to be enforced. They're on the books, and until they're held to be unconstitutional, or they're amended, they are what we have to work with.

 

But I just want to push back on one thing. And this is not just an environmental law issue. This is also an energy law issue. We have abundant laws on the books that are also really dictating what energy policy in the country looks like and the inflexibility of that energy policy in some respects. And we have a lot of subsidies on the books that are still favoring fossil fuels. And so I agree. There's a need for Congress to act. Congress, as we all know, has been stalemated for a long time on these issues of energy transition and passing climate legislation. But there's active conduct happening right now that is really harming our kids. And I think courts have a duty to step in.

 

Hon. Ryan Nelson:  Maybe given Congress's inaction, Mr. Abbey, you've got perhaps the most historical perspective. And maybe you can help us out. Why aren't they? If this is such a pressing matter and needs to be addressed not only for national security but health and welfare, why isn't Congress stepping in to give some direction in these areas?

 

Tristan Abbey:  It's a great question, Judge. I think that the answer -- because it is a question about Congress -- is ultimately a politics based answer. So if you look at many controversial topics that are facing the country right now, it's usually pretty easy to divide right and left, at least in broad strokes. I think when it comes to the energy mix -- and I separate that from energy versus climate or the sort of bigger conversation -- but the more focused question on what exactly types of energy we use in the country, I think you see a very interesting regional breakdown where it's not so much partisan but more regional in terms of the kinds of energy that your state, for example, is best at producing.

 

      And I think it is no coincidence that the renewable fuel standard, which in my opinion is one of the most atrocious policies every put in place in terms of its complexity -- set aside whether it's a good idea or not -- just in terms of the complexity of it, it is a thoroughly impenetrable document as an act and incomprehensible as policy. But it's also heavily geared towards corn production in a region of swing states. And I think that in very similar respects you see interesting regional breakdowns when it comes to things like hydropower where many environmental minded folks are now opposed to hydropower, and you see a lot of states where hydropower is a mainstay of baseload capacity where you see Democrats in support of hydropower, conversely, coal in terms of West Virginia, in particular, oil and gas production in certain parts of the country where again you don't have these neat regional, these neat partisan breakdowns.

 

      I would say that Congress has actually taken a lot of action in trying to support advanced technologies, in particular, advanced nuclear reactors. This has been a bipartisan effort, and we will see if it bears fruit. But it also has a lot of regulatory dimensions to it that make it a bit more complicated to deploy even if we were to succeed in terms of the technology.

 

And then I hate to beat a dead horse, but we get back to that minerals question again. Even if Congress was to decide that all of a sudden all 100 senators and all 435 members of Congress were in favor of energy transition, net zero by 2050, unless you're going to be mining more rocks out of the ground, that is just not going to be possible.

 

Hon. Ryan Nelson:  Eric, you served in the executive branch. And we heard a little bit about the legislative branch what they are doing, what they could be doing, maybe what they should be doing. Where energy policy is so intertwined with military affairs, national security, some of these issues we've been discussing, isn't that an argument for greater authority in the executive branch and through agencies to act to reflect those policy initiatives rather than just Congress and the people? And if so, what do you think executive agencies should be doing to address some of the concerns that we're discussing today?

 

Eric Grant:  Well, I'm not so sure, Judge. I encouraged client agencies to exercise their regulatory authorities. The Waters of the United States rule under the Clean Water Act is a preeminent example, and I helped defend those rule makings in court.

 

But I guess my perspective looking back over my tenure then and then seeing what's happened in the new administration is that's not a durable model for meaningful change. It really is unfortunate and more than unfortunate that -- what are we -- 17 years coming up, 16 years after Rapanos v. United States where the Supreme Court fractured about the meaning of the term waters of the United States.

 

And as we used to joke in the Environment Division, if only there were a branch of government that was authorized to define that term with some particularity. Well, there is a branch. It's the Congress of the United States, and it's the first -- it's in Article 1. It's supposed to be the preeminent branch because it's closest to the people. So yes, agencies should do their best. I thought we did a reasonably good job in the Trump administration in filling the vacuum, but unfortunately, there's a vacuum that should be filled by Congress.

 

Hon. Ryan Nelson:  Julie, where do you come out on these issues? Do you think that the legislative branch or the executive branch bears most of the responsibility on moving things forward?

 

Julia Olson:  My idea is that the executive branch and Congress have gotten us into the climate crisis, and the third branch of government has been pretty silent and allowing the conduct to continue without judicial review. And the U.S. Constitution has been pretty absent from this conversation about protecting our air, our water, our land, our coastlines.

     

And I've done a lot of research on history, and I'm looking at this through the lens of originalism. And when you look at what the founders intended and what they cared deeply about, a lot of it was about the land, the forests, the waterways. It was the national resources of our nation that they built this country on. And they understood the importance even of the climate system. And I think we need to start looking at this issue through a constitutional rights lens again, looking at it in terms of our posterity and really protecting this nation for future generations because there is a real crisis.

 

And the thing I'm enjoying about this and appreciating is that I'm seeing areas of agreement. We're all saying talk is cheap, but action is needed. We need to bring laws into the 21^st century. We're producing energy in a way that it's been produced for 100 years. And Tristan, to your point about nuclear, I know from our experts that the Department of Energy stopped doing R&D on next generation nuclear technology in the '80s and '90s. They forwent it, and they doubled down on hydrofracturing technology and the research and development the industry needed to extract more gas.

 

So there have been these tradeoffs and choices, and at the end of the day, we have about six decades of the government knowing that fossil fuels would lead us to really catastrophic consequences if we kept burning them at accelerating rates. And now we're living that. And the question again is what do we do. And I think this is a conversation that all three branches of government need to be having with one another, including through that constitutional lens that really does protect these fundamental rights to life and health and security that our children are threatened with.

 

So I think it's all three. I don't think it's one or another.

 

Hon. Ryan Nelson:  Let me just ask a follow up question because you mentioned an originalist view of this and the founders. And I would agree with you. I just read Undaunted Courage and was very impressed by just a reminder of how much Thomas Jefferson was very engaged on natural resources even in the founding of the country and how much -- I guess I would agree with you that that was a big focus. But doesn't that seem like a stretch to say that that just because they're interested in that that it requires a judicial branch to step in? And I'd be interested in where and to the extent that you were kind of going this way, where's the originalism basis for saying that the judicial branch should be the ones that are stepping in to protect the environment absent congressional or executive action?

 

Julia Olson:  Well, not absent congressional or executive action. Our work is not about bringing failure to act cases. I don't think there's a mandatory duty written in the Constitution for government to step in and address the climate crisis for which it has no role in perpetuating. But that's not what's happening. And our nation's history shows that our energy system today is a direct result of a lot of government conduct of both by congress and the executive. So where we have affirmative action, then what gives the courts authority to act is Article 3 because there's a case in controversy now between the children of the nation and the executive branch and the departments that are perpetuating these policies.

 

We have a fossil fuel energy policy in our country that dominates. And our system, our electricity systems, our pipeline systems, all of the plants that are authorized in this country, they all operate under federal approval. And many of them operate under federal subsidy. And so the authority is Article 3, but it's really right to life and liberty and interpreted through the posterity clause because life and liberty wasn't just for one generation. It's not just for our generation. It's for generations to come.

 

And I think -- I would hope that there's some synergy and connection between what we're doing on behalf of youth and, Judge Nelson, your perspective and the perspective of folks in The Federalist Society about what's really important and what we're trying to do for the benefit of present and future generations who will inherit this nation. And it does go back to what the founders intended. And Jefferson was an amazing climate -- he had a climate journal. They tracked everything because it was the essence of life was our climate system. And all of human civilization has been built upon that.

 

Hon. Ryan Nelson:  Well, let's turn a little bit to some of the questions that have been posed. Christopher Aquilina seems to be engaged on this. We appreciate you weighing in with questions. And I think I'll take the first question and just boil it down, kind of this idea that a lot needs to be done here. Wouldn't it make sense to cut the red tape, ultimately, is what he gets to, and allow us to utilize our resources instead of saying that we're protecting the environment but are actually selling out our own national security. That could go to any of you. Julia, maybe you could take that in the first instance, and then maybe we can get some other perspectives as well.

 

Julia Olson:  Yeah. Look, before I started Our Children's Trust and began working on behalf of youth, I did environmental law, and I worked under all the statutes that Eric and Tristan have complained about. So I brought those cases. And there is a tremendous amount of red tape. There is inefficiency. There is bureaucracy not just in the agency, the litigation processes that follow that. I had cases where we would win three times in a row, and then the agency would cross a T and dot an I, and a project that was really damaging would go forward.

 

      So I think that there is a lot of inefficiency in the system. And it would be great if Congress would clean up some of these inefficiencies and update these laws to reflect the current state of the environment, the current state of our climate and really bring them more into the 21^st century.

 

That said, the Clean Air Act is an example. Its purpose was to protect air quality and the quality of the atmosphere. And through the Clean Air Act, there's been a lot of air pollution that's been permitted and authorized that has gotten us to where we are today. So I think there's a lot of failure of environmental statutory law with some successes. And I grant you, Eric and Tristan, there is a lot of inefficiency for industries who are burdened by this in ways that hopefully can be addressed going forward.

 

Hon. Ryan Nelson:  Eric, do you want to take -- you've already referenced some issues on the red tape and some of the problems that have come into that. Where's the fine line? How do you protect the environment but also get access in a reasonable way to the resources that we need to solve some of the problems that are facing us?

 

Eric Grant:  Let's go back to the example of so called downstream emissions. I don't think we're protecting the environment. I don't know what we're doing. We had to advise our client agencies, update our advice with every new D.C. Circuit opinion. I referenced your dissent, your honor, in a case called 350 Montana. Now there's more guidance from the Ninth Circuit in that case and a case called BOEM Liberty.

 

      Congress should write into the statute what agencies need to do with respect to emissions that will be caused by, for instance, extraction of oil and gas in Montana. There's a lease. There's going to be certain numbers of barrels and cubic feet extracted. What do the agencies need to reveal to the public and the decision makers about that? They don't know. They should know, and then they should do it. And the public and decision makers will have that information and be able to make intelligent decisions.

 

      So I don't think we're trading off between protecting the environment and some kind of efficiency. We're just doing make-work.

 

Hon. Ryan Nelson:  One of the other questions that came up was standing for children in the courts. And Julie, you've talked about this throughout your comments. And obviously there's taxpayer standing, but this is the question is how it's posed is where taxpayers standing, there's generally not standing for a taxpayer to come in a challenge, get into court, and get standing with a case or controversy. So how do you distinguish children and say well, children should have more standing to come in or their concerns should be put at more paramount than just a normal taxpayer standing such that they should have access to the courts on some of these issues?

 

Julia Olson:  Yeah. Well, just to be fair, these cases aren't taxpayer cases. So I understand this is getting at the generalized agreements doctrine which is not the case here. And it's one thing that the Ninth Circuit did establish in the Juliana case is that these young people had individual, particularized concrete harms. If you can't breathe, you have an injury sufficient for Article 3 standing to come into court as long as you can make the causal chain to the conduct of the defendants. So we're not in that taxpayer class.

But notably, these children aren't taxpayers. These children are the last politically powerless and weld the least political power in the country because they're not -- many of them are not of voting age. And so not only do they not have economic power, they don't have political power. They're the least represented in our government. And the one branch they do have access to and they have a right to be heard is their judiciary.

 

Hon. Ryan Nelson:  One question -- and I don't want to point them all at Julia. Maybe Tristan, you could weigh in on this, and you sort of already have. But one question that was asked was does it really matter at the end of the day what the United States does given that we're just one part of a global group of sovereign nations that are addressing this. And if China and India and some of big -- and Russia -- some of the bigger countries aren't going to take environment controls seriously, why should the United States get into hamstringing ourselves when it might not actually have any impact? Tristan, do you want to take a stab at that one first?

 

Tristan Abbey:  Sure. I think that the answer to that is that in terms of greenhouse gas emissions and all of the scientific modeling and analysis that has gone into the IPCC and other reports and documents, it is true that if major emitters don't reduce their emissions, then according to the models, you will continue to see all the effects of GHGs on the climate, regardless of what the U.S. does or what Europe does.

 

I would caution though that there are other reasons for following environmental laws and regulations than just climate change and that it is important for the U.S. to have clean air and clean water as every president has said since Nixon, but most poignantly Donald Trump. And it is, I think, it is one of our competitive edges that U.S. energy is so relatively clean compared to other countries' energy in terms of U.S. exports in the future.

 

Hon. Ryan Nelson:  Julia, one question. You had taken some criticism even from environmental groups that were very concerned that the Juliana case may not be the best vehicle to vindicate some of these rights. You've gone up to the Ninth Circuit now. The Ninth Circuit held there was no standing. In what ways do you think that the Juliana case has impacted future ability for those who want to challenge climate impacts to bring those cases to federal court?

 

Julia Olson:  First of all, just so that the listeners understand the status of the case, we're back on remand. We filed a motion for leave to amend. We're waiting for a decision from the district court on whether our amended complaint can go forward focusing on declaratory judgement. So I don't think the story of Juliana is done. The next chapter is still going to be written.

 

And in terms of the impact, I would say domestically it has changed the way we look at standing. It's changed the way we look at how children are being affected. This isn't just an environmental issue. This is a human issue. And I think globally there are cases now on behalf of youth and children in over 25 countries. And we're seeing courts around the world allow youth into court, grant them standing, hearing their cases. Many are having rulings in their favor.

 

And so the law is percolating on this issue. And the novel aspect of it is that we haven't had these kinds of constitutional claims around climate, around environmental issues before because we haven't had this kind of threat that we see today. So I think the law is moving and evolving, and I think the Juliana case is still going to continue to move forward, hopefully to a trial because the evidence in these cases is so vital.

 

It's where the disagreement Eric and I are having over whether these wildfires out west that I live and breathe every summer how are made worse by climate change, caused by climate change, or whether they have nothing to do with climate change. That's an issue for experts, and a competent judge can hear from both sides and make a finding of fact as to that issue. So it's why trial is essential before the Ninth Circuit or the Supreme Court or any appellate court really hears these cases. They're worthy of being heard under the Constitution. They're no less worthy than someone going into court because they feel like their life is infringed, their liberty's infringed by having to wear a mask on an airplane. These kids can't breathe. And so they [inaudible 00:57:21], and they should have an opportunity to be heard.

 

Hon. Ryan Nelson:  Okay. Well, thanks. I think we're almost out of time. I'm going to ask one last question and give it to Eric. Congress finally they -- I'm going to give you a hypothetical. They get caught up, and they're like we've got to fix NEPA. We don't know what to do. We're going to turn to Eric. Whatever Eric says, he's got one thing and we're going to put it into law. What would that one thing be, Eric, that could help fix -- let's just focus on NEPA to make it more useful and practical today?

 

Eric Grant:  Well, Judge, you put me on the spot. I'll go back to what I said before in terms of climate change and emissions. We ought to have a specification of what an environmental impact statement needs with respect to downstream emissions and something that can be calculated with reasonable dispatch to provide useful information to decision makers. These reports now run to hundreds, even thousands of pages and, to my mind, don't provide the kind of information that the decision makers or public finds useful.

 

      So Congress should really specify what goes in reports and then agencies will be able to do that, know that they've complied with the law, and let the chips fall where they may.

 

Hon. Ryan Nelson:  Well, thank you. Thank you all for a very thoughtful and helpful discussion on important issues. And we're grateful for the questions that came in. And with that I think we'll conclude this webinar.

 

Guy DeSanctis:  Thank you all. On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. And I want to thank our audience for joining and participating. We also welcome listener feedback by email at [email protected]. As always keep an eye on our website and your emails for announcements about upcoming virtual events. Thank you for joining us today. We are adjourned. 

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.