Transcript [05:23] Good afternoon everyone and welcome to [05:24] today's Feds stock briefing ahead of the [05:26] oral arguments next week in the Suncore [05:28] Energy the Boulder County case. My name [05:30] is Anna Puzzy and I'm vice president of [05:32] communications and external affairs here [05:34] at the Federalist Society. We're joined [05:36] today by an outstanding panel of experts [05:38] including West Virginia Solicitor [05:40] General Michael Williams, OH Skinner, [05:42] executive director of Alliance for [05:44] Consumers, and moderated by Christopher [05:46] Mills, principal at Sparrow Law. A quick [05:48] housekeeping note, if you have any [05:50] questions throughout the webinar, please [05:52] submit them through the Zoom's Q&A [05:53] function located at the bottom of your [05:55] screen and not the chat function so that [05:57] we'll be able to access them later. With [06:00] that note, I will turn things over to [06:01] Chris to begin the discussion and thank [06:03] you all so much for joining us today. [06:07] >> Thanks, Anna. It's uh good good to be [06:10] here. Uh thanks to our panelists for [06:11] joining us. Uh like Anna said, we have [06:14] Michael Williams who was the solicitor [06:15] general who is the solicitor general for [06:17] the state of West Virginia. He co-led an [06:20] amicus brief filed in uh the case we're [06:23] talking about today, Suncor Energy [06:25] versus Boulder County. Michael clerked [06:28] on the District of Maryland and the [06:29] fourth circuit and we're happy to have [06:32] him. Our other panelist is O Skinner um [06:36] with whom I went to law school. Uh O is [06:39] the executive director of the Alliance [06:41] for Consumers and clerked on the 11th [06:44] Circuit. So um I I want to start with [06:48] you, Michael. Could could you just give [06:50] us um some background on this case? you [06:54] know, part of part of the reason this [06:56] case is drawing a lot of attention is [06:57] that there are a lot of other cases like [07:00] this. So, can you just kind of give us a [07:02] sense of what this whole set of cases is [07:04] about and where they came from? [07:07] >> Yeah. So, at bottom, these cases all [07:10] concern the question of whether uh state [07:13] tort plaintiffs can hold energy [07:15] companies accountable for what they [07:17] perceive to be consequences of climate [07:19] change deriving from interstate [07:21] emissions. Um, and for the most part, [07:23] these uh these cases are being brought [07:25] in state courts. There was kind of a [07:26] whole round of litigation a few years [07:28] ago about whether the proper venue was [07:30] federal court or state court. For the [07:32] most part, these state plaintiffs [07:33] prevailed in keeping these lawsuits in [07:35] state court. So now we're getting closer [07:37] to actual decisions on the merits and [07:39] Colorado is one of the many states [07:40] that's tackled these issues. Um there's [07:42] been decisions uh similarly quite sort [07:45] of evaluating uh whether tort suits [07:48] premised on climate change consequences [07:50] can be brought in other states like uh [07:52] Maryland and uh Hawaii but Colorado uh [07:55] has teed these issues up now for the [07:57] Supreme Court. So in short you have uh [08:00] localities in this case Boulder who are [08:02] bringing litigation against uh major [08:05] energy companies and in this case that's [08:06] Suncor and Exxon premised on a variety [08:08] of theories that turn on things like [08:10] nuisance liability sometimes consumer [08:12] protection actions but at bottom just [08:15] suggesting well you as energy companies [08:18] uh created the consequences of climate [08:20] change that we as localities now have to [08:22] pay for. Um, so there's been of course a [08:24] response from the energy companies, um, [08:27] from states, from the federal government [08:28] itself that have suggested that these [08:30] kinds of issues really aren't [08:32] appropriate for determination in state [08:33] courts. And I'm sure we'll get into all [08:35] the many reasons why, but at bottom, uh, [08:37] the argument, I think, is that these [08:39] interstate emissions issues have to be [08:41] dealt with at the national level. So, [08:43] uh, after all the wrangling about venue [08:45] and after some wrangling about whether [08:47] these theories work at all, we finally [08:48] arrived here at the Colorado case making [08:51] its way to the Supreme Court. Um, there [08:53] is a sort of initial preliminary issue [08:55] that I assume we'll also get into a [08:56] little bit uh in a bit. But there's a [08:58] question about whether the particular [09:00] Colorado process by which this case [09:02] arrives at the Supreme Court um affords [09:04] the court a sufficiently final judgment [09:06] to actually give it jurisdiction. So um [09:09] in addition to evaluating whether [09:10] federal law precludes the actual torbas [09:13] based state law based claims against [09:14] these energy companies the court added a [09:16] QP to ask whether or not it actually has [09:19] jurisdiction to consider the question in [09:20] this case at all. So I think those are [09:22] the basics and we'll get into all the [09:24] details uh beyond that. [09:27] >> Yeah. Uh thanks oh. Uh can you can you [09:30] tell us a little more about kind of the [09:31] details of the plaintiff's claims in [09:34] these cases? [09:36] Yeah, I mean at bottom these cases are [09:42] the core of these cases is the public [09:44] nuisance case and the way the public [09:45] nuisance is supposed to work is you [09:48] identify a nuisance and you bring a [09:50] claim and your claim is fundamentally to [09:54] obtain relief to undo the nuisance. So [09:57] if I identify some examples of [09:58] traditional nuisances, it makes it a [10:00] little easier. So, if a tree on a [10:03] farmer's property falls on a like [10:04] traditional like public throughway, [10:07] somebody could bring a claim against the [10:09] farmer and they're not asking for [10:11] damages. They're asking for him to get [10:14] the tree off the road, right? Perhaps [10:17] they get the tree off the road and they [10:18] ask to get the money back. But like [10:20] really what the public nuisance is [10:22] supposed to be is a court ordering him [10:24] that it's his tree, get it off the road, [10:26] right? And if it broke the road or [10:27] something, he's responsible for fixing [10:29] the road. But like that's a normal [10:31] claim. Here in Phoenix, Arizona, we had [10:33] a very very recent example where the [10:36] city of Phoenix was sued by a sandwich [10:38] shop owner right across from the old [10:40] AG's office that they have since leveled [10:42] um where there was a huge homeless [10:44] encampment with like needles and you [10:46] know, really tragic incences had [10:49] occurred there and it basically had [10:51] spread down the street and was covering [10:52] the front of the sandwich shop's gates [10:55] that allowed you to go in. And they all [10:57] they wanted was for the city to be [10:59] ordered to enforce their camping [11:01] ordinances and scrape the homeless [11:02] encampment from the sidewalk. Right? [11:04] They didn't get damages. They just got a [11:06] make this all usable. Again, here what [11:09] you get is a claim that the nuisance is [11:12] global climate change. Right? There are [11:13] other instances where the left is [11:15] pushing this as um as nationwide gun [11:18] violence, right? there there's other [11:21] ills that they would identify and what [11:22] they want is a court order that um [11:25] addresses the ill of global climate [11:28] change which means in order stopping the [11:31] continued contribution to the nuisance [11:33] because it's not enough to pull the tree [11:36] off the road if all they're doing is [11:38] then dropping another tree on the road [11:39] again and again and again and again. And [11:41] then secondarily, um, in some of these [11:45] more modern nuisance claims, they're [11:46] asking for like an abatement fund to [11:49] clean up the effects, right? So imagine [11:51] if it was like a spill or something. Um, [11:54] but fundamentally, you're just supposed [11:55] to identify a nuisance and seek an order [11:58] against certain people that they are [11:59] responsible for the nuisance and that [12:01] they need to fix the nuisance and undo [12:03] the nuisance, right? And so that's what [12:06] these cases are. Now, there's often [12:09] times other claims in these cases, like [12:12] a consumer protection claim or some [12:14] other claim that's that's trying to [12:16] punish somebody for not saying magic [12:18] words about climate change or not saying [12:20] magic words about guns or gun violence. [12:23] But the real crux of this case is if [12:27] you've identified your nuisance as being [12:29] international global climate change and [12:32] the order you're seeking is to stop the [12:35] contributions to and fix the effects of [12:39] global climate change. Is that so [12:44] is that going to ram into the Clean Air [12:47] Act? And then what's also interesting in [12:49] the briefing is is it going to be what [12:52] amounts to a a lawsuit that affects [12:57] basically extr territorial adjudication [13:00] and regulation onto neighboring states [13:03] and and places because when the when [13:05] it's a a tree on a road, you know where [13:08] it came from and you know where it is [13:10] and it's in your jurisdiction, right? [13:11] When it's a homeless encampment in [13:12] Phoenix, everything's in the same place. [13:15] Here the argument is fundamentally that [13:17] if they're burning or extracting fossil [13:19] fuels in Gana it has an effect on the [13:23] people in Boulder. And so the only way [13:26] really to stop the effects of climate [13:28] change in Boulder is to stop producing [13:30] climate change whether it's in Gana, [13:32] whether it's in um Nigeria or whether [13:35] it's in uh South Carolina. And so that [13:38] starts to push on a lot of like [13:41] constitutional questions that have [13:43] become the forefront of this case. [13:46] Yeah. And and is am I right in [13:48] understanding that they sort of seek not [13:51] only kind of equitable relief in the [13:53] sense of stop contributing to climate [13:55] change but also damages? Is is there a [13:58] damages component? [13:59] >> So yeah, I think this is a thing that [14:01] does not get discussed enough and I [14:03] think it's a really important [14:04] distinction. Um there are others uh and [14:08] you know Michael used the phrase tort [14:10] claim and he's not wrong in the sense [14:12] that it's like it's coming out of common [14:14] law but like I don't like using that [14:16] because there's this there's a once the [14:20] case got granted [14:22] all of a sudden it became like a very [14:24] small tort claim in the traditional [14:26] sense of just trying to impose liability [14:28] on people. That's like the new [14:29] normanclature like um uh and on the [14:34] other hand [14:36] you're not really normally allowed to [14:37] get damages from torque claim mean from [14:39] public nuisance claims and they're not [14:41] like a traditional tour claim where [14:42] you're trying to accomplish a uh you're [14:44] identifying a harm and you're trying to [14:46] get money for the harm. Now [14:49] the caveat to that is the lawyers who [14:51] are pushing these cases are very clever. [14:52] So they're not normally seeking damages. [14:55] Instead, they're seeking an abatement [14:57] fund. If the relief you can get from a [15:00] nuisance claim is abatement of the [15:02] nuisance, which is the undoing of the [15:04] effects of the nuisance, one of the [15:07] things they've said is, well, the only [15:08] way to undo the effects of climate [15:09] change. And this is in other cases [15:10] primarily. There's been less clarity [15:12] here about exactly what they want is [15:15] create a multi-billion dollar abatement [15:17] fund that will then pay for retrofitting [15:21] of my government buildings, uh, pay for [15:24] all sorts of things to address the ills [15:26] of global climate change in Boulder. So, [15:28] it's not actually a damages case, but it [15:32] will produce [15:34] potentially multibillion dollar [15:37] extraction of money from the defendants [15:41] to the benefit of the plaintiffs, if [15:43] that makes sense. But it's through this [15:45] like abatement fund model. It's not an [15:48] actual like damages payment. [15:51] >> Okay, that's that's helpful. Um [15:53] >> I mean, I don't know, Michael, I think [15:54] that's a fair approximation, don't you? [15:56] or [15:57] >> it it is I mean on this issue there's a [15:59] little bit of confusion in the courts [16:01] below. Um the Colorado Supreme Court [16:02] actually leaned on the fact that [16:04] plaintiffs weren't expressly seeking [16:06] damages at least according to their [16:07] reading um in finding that it wasn't an [16:09] attempt to regulate interstate [16:10] emissions. But if you actually read uh [16:13] what petitioners were challenging, they [16:14] seek quote monetary relief to compensate [16:17] for quote past and future damages and [16:19] costs to mitigate the effects of climate [16:22] change. So they're using [16:23] >> Michael has hit on this, right? Like [16:25] this is a crucial aspect to this case. [16:26] Like they want money to deal with the [16:29] damages caused by climate change, but [16:32] then they are going to I think rightly [16:34] say, but it's not a damages award. It's [16:38] an abatement fund to undo the effects of [16:41] damages. And I think they're right that [16:43] that's what they're seeking. But it's [16:45] very cute to say they're not seeking [16:48] damages, so it's not regulation. what [16:50] they want is like a $40 billion pool of [16:54] money to pay for their preferred policy [16:57] choices, therefore fixing climate [17:00] change, right? And so I think it's just [17:02] way too cute by half for them to claim [17:04] that they don't want money. But I also [17:06] think it's important to clarify that [17:07] like they want money as part of like a [17:11] policy solution to climate change, [17:13] right? Which then is that's important. [17:16] But the second thing they want is they [17:18] want an equitable order stopping the [17:22] further contributions [17:24] uh of this climate change, right? Like [17:26] it does that is the core of any nuisance [17:29] case. I've never seen a nuisance case [17:32] where you only seek like an abatement [17:35] fund. You need something that stops the [17:38] nuisance from continuing, right? And so [17:42] um Okay. Well, I'm glad that Michael and [17:44] I see this the same way. There's a lot [17:45] of words and like it's but the end [17:48] result is money goes from here to here [17:51] and there's going to be an order of some [17:53] variety saying you can't make climate [17:55] change worse. So it's like step one you [17:57] have to stop making climate change worse [17:59] and then step two give me billions of [18:00] dollars to fix the past damages from [18:02] climate change. [18:06] >> Yeah. So you so someone looking at the [18:08] suit from the outside could see sort of [18:10] immediate obvious you know potential [18:13] defenses there having to do with injury [18:15] and causation and red addressability but [18:18] you know that's not what the court is [18:21] considering. So Michael can you can you [18:23] walk us through kind of the the the [18:25] questions that the court actually [18:26] granted on and maybe touch on also the [18:28] uh um jurisdictional question that's [18:32] that they added. [18:33] >> Sure. Um so in in principal part the [18:36] courts focused on the question of [18:38] preeemption or displacement. It depends [18:40] on how you think of this and I I like to [18:43] think of it as maybe two to three [18:45] independent buckets that also are maybe [18:48] less independent depending on how you [18:49] perceive of the case but um each one of [18:52] these buckets prevent potentially [18:53] provides a body of law that either [18:55] preempts or displaces what Ker is trying [18:56] to do here. So when the case was first [18:59] brought um at at least at the cert stage [19:01] I would say that petitioners were [19:02] focused more on what I'll call the first [19:03] bucket which is federal common law. Um [19:05] and that's a body of law that's existed [19:08] for well over a century that recognizes [19:10] that interstate um pollution matters [19:12] particularly in the water context but [19:14] applied by extension to the air context [19:16] have long been recognized as matters of [19:18] sufficiently federal or national [19:19] interest that they require a federal or [19:21] national answer. So there is there are a [19:23] number of cases in which the court I [19:25] think the the Illinois uh series of [19:27] cases I think is the most off-sighted [19:28] one that say handsoff states when it [19:31] comes to interstate disputes over water [19:32] and air that's really a federal issue. [19:35] Um there's a second body of law though [19:37] that's also uh statutory. It's not just [19:40] federal common law. It's the Clean Air [19:41] Act itself. And um we at least as states [19:45] uh have often argued, I think the [19:46] federal government agrees, that the [19:48] federal Clean Air Act so comprehensively [19:51] regulates this field that there's really [19:52] no space for uh a state to actually [19:55] involve itself in the regulation of [19:57] interstate emissions either because the [19:59] statute has so comprehensively regulated [20:01] or because it sets up sort of an [20:03] inherent conflict between what the [20:05] state's objectives are, which is just [20:06] sort of maximum recovery, maximum [20:09] damages versus the more balanced [20:11] approach that I think at least at least [20:12] the cleaner act aspires to and we can [20:14] talk at length another day about whether [20:15] that works or not. Um but ultimately [20:18] there's this second statutory scheme as [20:20] well. Um but the third angle I think is [20:23] the one that's really kind of taken the [20:25] four when it comes to the actual merits [20:27] briefing and that's uh a structural [20:29] constitutional concern and this really [20:30] derives from the law of nations which [20:32] was baked into our constitution from the [20:35] very beginning and it's the idea that [20:37] nations and by extension states really [20:39] only have the authority to regulate [20:41] conduct within their own borders and and [20:43] targeting activities within their own [20:45] borders and don't then have the ability [20:47] to say reach into Texas or Louisiana or [20:50] West Irginia and say we don't like [20:52] what's going on there. We're going to [20:54] effect effectively regulate or in this [20:55] case ban um what would otherwise be [20:57] lawful activity in those states. Um that [21:00] really I will say wasn't much of a focus [21:03] at some maybe earlier stages of the [21:04] case. It was really perceived of as more [21:06] of a federal common law type angle. But [21:09] I think there's become an increasing [21:10] understanding that this structure of our [21:12] constitution itself um effectively [21:15] displaces or prevents states from [21:17] imposing this sort of extr territorial [21:19] regulation. Um so as as I said I think [21:23] it's it's the the briefs kind of uh [21:25] reflect that change in tone. I think the [21:27] federal common law informs to some [21:28] degree that structural [21:29] constitutionalism. They're kind of [21:31] working hand inand together. One [21:32] reflects the other. Um, but I think that [21:35] structural constitutionalism and that [21:37] kind of federalism belief, what [21:38] federalism really means both in a non [21:40] non-interference perspective as well is [21:42] is ultimately what I suspect's going to [21:44] decide this case. Um, there's a fourth [21:46] bucket that I'll also not forget. I some [21:48] sometimes kind of tend to forget this [21:50] important fourth question, which is [21:52] really whether there's a role for states [21:54] when it comes to this international [21:55] regulation. I mean, Colorado is not just [21:57] targeting conduct that's happening in [21:59] the state of West Virginia. It's also [22:01] targeting conduct that's happening in uh [22:04] Saudi Arabia or uh Russia or all these [22:08] various places from which oil and gas [22:10] and traditional energy is produced. And [22:12] so I think that uh there's also a [22:14] serious problem when it comes to [22:16] international relations and an [22:17] interference on the part of a single [22:19] state with uh the foreign affairs of the [22:21] United States itself. So um the United [22:24] States has actually scored a recent [22:25] victory or two against some similar [22:27] efforts to kind of impose international [22:29] level uh climate change regulation by [22:31] way of statute and uh they they won some [22:34] victories based on that foreign affairs [22:36] doctrine as well. So um I I think that [22:38] that also has the potential to play a [22:40] role as well. So at bottom um all the [22:43] issues center on this has federal law [22:46] effectively pushed aside any role for [22:48] the states? Um the jurisdictional [22:50] question that the court added really [22:52] concerns the the way in which the [22:54] Colorado suit uh I guess was presented [22:57] to the court. Um obviously it was just [22:59] filed in state court as kind of an [23:01] ordinary complaint, but the decision [23:03] that kind of addressed all these [23:05] preeemption displacement issues um [23:07] resulted from an original jurisdiction [23:09] proceeding in the Colorado Supreme [23:10] Court. um they have an sort of a [23:12] proceeding to seek an order to show [23:14] cause to evaluate whether uh the [23:16] proceeding below can proceed or whether [23:18] for various reasons this the Colorado [23:20] Supreme Court should actually intervene [23:22] and uh and stop the proceeding from [23:24] moving forward. Um there's a question [23:26] about whether that uh motion that order [23:29] to show cause proceeding is again a [23:31] sufficiently final and distinct action [23:33] to to give the court um article three [23:36] article three jurisdiction over that um [23:38] final state court action. And I I [23:42] suspect ultimately they are going to [23:43] hold that they do have jurisdiction, but [23:44] there's just that that further [23:46] complication of if they view this as [23:47] part and parcel of the underlying tort [23:49] case itself, then maybe they say, "Well, [23:52] proceedings are obviously not done and [23:53] we don't actually have jurisdiction." [23:57] Okay. Uh before we go on to the next [23:59] question, I should I should note that um [24:00] if any of the attendees have questions, [24:03] you're welcome to leave them in the Q&A [24:05] function or in the chat. we've already [24:06] gotten uh one or two so feel free to do [24:09] those and we will try and come to those [24:11] at the end. Um so Michael kind of walked [24:14] us through the main arguments on the [24:16] petitioner side. Oh, uh if you had to [24:19] give your um you know your best [24:23] channeling of the uh of the other side, [24:26] what what what what is kind of their um [24:30] the main themes of their argument uh [24:33] that the court should you know should [24:34] should let them keep going forward with [24:37] these cases? [24:38] >> Yeah. I mean, so I'll add one simple [24:41] simpleization of what Michael said. [24:43] Michael um Michael does a really good [24:45] job of translating these concepts into [24:47] something that most lawyers can [24:48] understand. But I would basically say [24:50] the preeemption argu the preeemption set [24:52] of questions kind of is is very specific [24:56] to the topic here which is climate [24:58] change and climate regulation. the [25:01] extrterritorial [25:03] horizontal federalism structural [25:05] constitution is more about the nature of [25:08] how they're trying to do it in some [25:10] respects and I think that dynamic is [25:13] like a fascinating dynamic like the [25:15] topic is triggering a very core set of [25:17] preeemption questions but the method is [25:20] triggering a lot of really concerning [25:22] constitutional questions [25:25] um and so I would just flag for people [25:27] that like you can be interested in both [25:29] but it's kind of fascinating because [25:30] they arrive for different reasons, [25:31] right? Um [25:34] I think the most simplistic framing of [25:38] all of this is the preeemption arguments [25:43] are complicated at their core and they [25:46] are hard. I would say that it is hard. [25:50] Uh if I'm the if I'm the plaintiffs, [25:52] they have a lot it it's kind of um a [25:55] friend of mine says that whoever is the [25:57] victim in any sort of policy fight in [25:58] America today wins. and whoever's not [26:01] loses. In this case, on the preeemption [26:03] side, the plaintiffs will focus on the [26:06] idea that this isn't field preeemption, [26:08] that this isn't some sort of like really [26:11] broad and explicit preeemption provision [26:13] in the Clean Air Act. And so in a lot of [26:16] the briefing from the energy companies, [26:18] there's language like the Clean Air Act [26:21] has primacy in this space and these [26:24] lawsuits if allowed to proceed would [26:26] undermine the primacy of the Clean Air [26:27] Act and they would create like a [26:29] conflict with the Clean Air Act because [26:31] of the nature and and I think that they [26:35] can get some roadway for themselves by [26:37] focusing on how there are limits to the [26:41] preemptive language in the Cleaner Act [26:43] and you have to find some [26:44] implications of preeemption or some or [26:47] some practical realities of preeemption [26:49] if that makes sense. So when they focus [26:51] on the gaps in the preemptive situation, [26:56] that's their best framing. And then on [26:59] the counterarguments with respect to [27:02] horizontal federalism, their arguments [27:04] are, well, we're just seeking damages, [27:09] right? Or we're seeking, you know, we're [27:11] seeking um, you know, a simple remedy [27:14] for a harm in a traditional way only [27:16] within our borders. And so they try to [27:19] make their case seem very small. Right? [27:22] The thing that I think is hard for them [27:24] is that when you focus not on the [27:28] preeemption arguments being made by the [27:30] energy companies, but when you focus on [27:32] the preeemption arguments being made by [27:33] Boulder, it starts to really seem like [27:36] way too cute. [27:38] They want an order that basically will [27:41] adjust the behavior of the defendants [27:44] and hold them liable for behavior in [27:48] foreign countries and outside of the [27:50] state of Colorado. And in order to abate [27:53] the nuisance of climate change, they are [27:55] going to seek an order asking Suncor and [27:58] Exxon to change their behavior at sites [28:00] that are regulated by the Clean Air Act [28:02] in another jurisdiction. So it's really [28:05] too cute. like when you start to focus [28:06] on the actual preeemption arguments [28:08] being made by the plaintiffs now we're [28:11] talking and they have huge problems on [28:14] their preeemption side if that makes [28:16] sense right so it's kind of whoever is [28:18] held up the flaws are visible but I [28:21] think it's going to be very hard for the [28:22] plaintiffs to defend their preeemption [28:24] argument as being nothing to see here [28:27] and similarly it's very hard to claim [28:29] that you're just seeking damages in a [28:30] traditional way nothing to see here when [28:32] we know that in other instances like in [28:35] uh Multma County, Oregon, they wanted [28:38] something like $50 billion for one [28:40] summer heatwave. So, at the end of the [28:42] day, if they prevail, they're going to [28:44] try to get something like $150 billion [28:47] or hundred billion dollars or more or an [28:50] ongoing tithe of 10, 20, 40 billion from [28:54] energy companies, you know, and the [28:56] numbers start to add up, you know, to [28:57] quote Tip O'Neal from back in the day, [28:59] like that starts to turn into real money [29:00] and that starts to turn into something [29:02] that looks like an attempt to bankrupt [29:04] the energy industry, [29:06] which starts to make it seem really hard [29:08] that you're trying to claim that you're [29:09] just this small parochial attempt at [29:12] nonregulation if that makes sense. [29:17] >> Sure. And obviously you have you know [29:19] the more technical preeemption arguments [29:22] um tending to divide the court recently [29:25] among you know maybe unexpected lines as [29:27] you have some more conservative justices [29:30] um a little more skeptical of [29:32] preeemption. Um and and so you know [29:35] it'll be interesting to see how that [29:37] plays out at oral argument in terms of [29:39] the narrow focus on preeemption versus [29:41] the the broader structural focus. So I I [29:43] did want to talk about you know what to [29:45] look for at argument and maybe both of [29:47] you could talk about this. You know what [29:49] what should listeners be looking for in [29:53] terms of questions that might indicate [29:55] which way the arguments going? [29:56] Obviously, um there was news this week [29:58] that one of the justices um was not [30:01] going to participate in this case. Uh so [30:03] maybe one of you could touch on that, [30:05] too. [30:06] Michael, you want to lead us off? [30:09] >> Yeah. So, in terms of what to look for, [30:11] I think, uh the language that the [30:13] justices use is really going to be a [30:14] tell here. um if we see them talking [30:17] about federal policies, federal [30:19] preferences, federal interests, that's a [30:22] big flashing red light for uh the energy [30:24] companies and for the United States [30:25] because I think that there are a couple [30:26] or three justices who are um justifiably [30:29] concerned about the notion that sort of [30:31] freeranging, free roaming federal [30:33] interest, federal policies, federal, you [30:35] know, uh preferences are enough to [30:37] preempt state law. Um Justice Gorsuch [30:39] has of course written about this. [30:40] Justice Thomas has as well. Um, so if [30:43] they really if they don't feel like [30:45] there's a good textual or constitutional [30:47] hook and they start kind of phrasing it [30:49] as more of these squishy federal kinds [30:52] of concepts, um, that's a signal that [30:55] not a good day for the energy companies. [30:57] Um, what I suspect is going to happen [30:58] instead though is that the focus is [31:00] going to kind of reflect where the [31:02] merits briefing has headed away from the [31:04] search stage briefing and we're going to [31:06] see more of a discussion about this [31:08] constitutional extr territoriality [31:09] interest. Um I think that's in part [31:11] because it again it appeals more to [31:13] those on the court who are looking for u [31:15] preemption that's sort of rooted in um a [31:18] real uh uh actual like nexus with the [31:22] constitution as opposed to a federal [31:23] interest sort of writ large. Um but it [31:26] also gives them a chance I think to [31:27] address the broader issues that that uh [31:29] oh was talking about earlier instead of [31:30] just making this a case about climate [31:32] change because it fundamentally isn't [31:34] just about climate change. Um, so I if [31:37] you hear those sorts of discussions, if [31:39] you hear the court asking really getting [31:40] into the history for instance of what [31:43] states were allowed to do before and [31:45] after the the the founding and uh sort [31:48] of what rights they might have bargained [31:49] away in entering this uh constitutional [31:51] agreement um and what rights they might [31:53] retain to some degree, but are those [31:55] rights then bound by territorial [31:56] concepts? you know, if that's the [31:58] discussion that's being had, then I [32:00] think it's going to be a big win for the [32:02] energy companies because I think all [32:03] those concepts point in the same [32:05] direction, which is kind of what O has [32:07] been laying out uh for a bit now as [32:08] well. So, um, you know, I I think [32:10] Justice Alo, uh, recusing makes this, [32:14] uh, maybe a more interesting discussion [32:15] because I I think he, uh, was a little [32:18] more comfortable with some of the [32:20] preeemption concepts that were at play, [32:21] particularly when it comes to maybe the [32:23] statutory preeemption angle, um, than [32:25] maybe some of the other justices might [32:26] have been. But I think, uh, at bottom, [32:29] we're still going to see uh, these [32:31] justices finding the principles that [32:33] they need to preempt in the Constitution [32:37] itself. And I think that's that's really [32:38] what's going to decide this case. [32:42] >> Yeah, I think Michael is Michael's very [32:45] good at this. He's right in terms of the [32:47] magic words you want to look for, the [32:48] words are going to matter a ton. Um, and [32:51] the the framing is going to matter a [32:53] ton. If they're talking about regulation [32:55] and when lawsuits become regulation, the [32:57] United States has a great line that says [32:59] that this is a lawsuit, but it's but it [33:03] is no different than extr territorial [33:04] regulation if it's extr territorial. [33:07] He's right in all that. One of the [33:08] things that I think is going to be [33:10] really I would encourage everyone to do [33:12] is look at how Justice Gorsuch [33:14] approaches this. This is somebody who in [33:16] the pork producers case wrote a long and [33:19] detailed piece that expressed a lot of [33:20] concerns with California's extr [33:22] territorial reach, but a lot of doubts [33:25] about some of these soft madeup noncore [33:30] foundational arguments in the dormant [33:33] commerce clause space. What's he what [33:35] are his questions? And are they asking [33:37] the exact questions that Michael asked [33:39] about what was the understanding at the [33:40] founding of what states could do? What [33:42] is the understanding of the structure of [33:43] our constitution? How does that work? [33:46] What did would this have been a kind of [33:48] an acceptable thing under the framer's [33:50] understanding of how states are supposed [33:52] to interact with other states? Right? Um [33:54] separately, I think um I I think the [33:58] thing that I am the most interested in [34:00] is to see how Justice Barrett asks some [34:02] of these questions. Everyone knows that [34:04] she is um she she looks up a lot to [34:08] Justice Scalia. And one of the things [34:10] that um somebody noted on the internet [34:12] the other day was we're going to lose [34:15] Justice Alo at the argument. He is one [34:17] of the most incisive questioners. He [34:20] doesn't talk a lot. is probably one of [34:22] the lowest numbers of words said, but [34:24] his questions are so great and they go [34:26] straight to the core questions and [34:28] they're very uh they put people in boxes [34:32] really quickly. And so somebody said [34:34] it's sad that we're not going to have [34:35] him. They wish that we could have [34:36] Justice Scalia to come back and sit [34:39] here. And the reason is because Justice [34:41] Scalia would give these speeches about [34:42] how the structure of our constitution [34:44] was destiny and how the structure of our [34:46] constitution and government was [34:48] everything. And that if you don't have [34:49] structure, if you don't have structural [34:51] protections, if you don't have [34:52] separation of powers, vertical, [34:54] horizontal, whatever they are, that you [34:56] don't have a government, you would, you [34:57] know, who talk about how every tinpot [34:59] dictator can have a a bill of rights, [35:01] but that if one person has all the [35:03] power, the bill of rights is written on [35:04] a piece of paper that doesn't matter, [35:06] right? I would I just think if you see [35:08] her asking questions that sound [35:11] Scaliaike [35:12] about uh structure structure being [35:16] everything being destiny how do we how [35:19] do we mold this case into these [35:22] structural protections of our governance [35:23] system that's that I think will be [35:27] really interesting because she could [35:28] sound very Scaliaike in her foundational [35:32] core founding era understanding of how [35:34] we set up our government so that each [35:36] state governed itself and gave some [35:38] powers to the federal government, but [35:40] they didn't give more powers to the [35:42] other states, right? That the other [35:44] states only have more power to the [35:47] extent that they gave it up and then the [35:48] federal government uses that power. So, [35:51] those are the two parts of argument that [35:53] I'm just the most interested in. [35:57] >> All right. Um, [35:59] what what happens after the court [36:01] decides? So, u Michael, let's say the [36:03] court, you know, rules in favor of um [36:06] the energy companies. What what happens [36:09] then? [36:12] >> Uh the cases end, which is I mean I I [36:15] think that's it's really that [36:16] straightforward. Um [36:19] this isn't about venue at this point. [36:20] This is about whether the the claims can [36:22] be brought at all. Um, so [36:24] >> and would that be true sort of of this [36:26] whole universe of [36:28] basically [36:30] more or less identical cases? [36:32] >> I I I think that's the case. I mean, I [36:34] obviously plaintiffs lawyers are going [36:36] to be creative and they're going to try [36:37] and um make distinctions that maybe [36:40] aren't there. I think the good news is [36:42] that the Colorado case does include both [36:45] sort of the traditional nuisance actions [36:46] that that O was talking about as well as [36:48] some of the consumer protection uh [36:50] claims that more recently some of these [36:52] plaintiffs have been trying to bring to [36:53] get around some of these concepts. Um so [36:56] I think the decision if it if it really [36:57] holds that all of that is displaced or [36:59] preempted then um there's really not [37:01] going to be a whole lot of room left to [37:02] maneuver. Uh I think what you then might [37:05] see is more action on the part of state [37:07] legislators to try to take some of these [37:09] concepts and apply them in the statutory [37:11] context. I I don't think that's going to [37:12] have any more success to be honest with [37:14] you. Um but I think that what we've seen [37:17] in our own um climate super fund act [37:19] challenges in Vermont and New York is [37:20] states are trying to somehow draw a line [37:23] between uh common law litigation and uh [37:27] their own statutes and saying that these [37:29] these principles somehow play out [37:30] differently. Um, no court's bitten on [37:33] that yet. So again, I think that [37:34] argument is ultimately unsuccessful. But [37:37] if I were a plaintiff, I guess that that [37:38] would or or a climate change advocate, I [37:41] guess that's the the next and only [37:43] available route for me when it comes to [37:44] these kinds of of claims. [37:47] >> So, uh, [37:47] >> yeah, if they if the [37:49] >> I was going to say same question the [37:50] other way. [37:52] >> Okay. Oh, okay. I'm I have to be the bad [37:54] guy here. That's great. Um, I would say [37:56] well, let me let me just let me just [37:58] piggyback off what Michael said. [37:59] >> Yeah, sure. If this is decided in the [38:02] way that I think is most likely, which [38:04] is some justices saying preeemption and [38:06] other justices saying structural [38:08] constitution. [38:10] Um the next question will be how these [38:12] climate super fun cases that Michael's [38:14] litigating are resolved because they've [38:16] had these huge wins on preeemption. Um [38:19] but the the you could see a universe [38:22] where um they become a next statement in [38:25] the structural constitutional aspect and [38:27] then you'll see um and then you'll see [38:30] this spiral where the the advocates try [38:32] to go to the consumer protection claims. [38:34] They try to go to something crazy like [38:36] they have this climate homicide theories [38:38] and we'll go down where they start to go [38:40] to ever more esoteric attempts to reach [38:42] the same conclusion. Okay. But we'll be [38:44] on a downward spiral of like the claims [38:46] becoming ever more esoteric and ever [38:49] more far-fetched. On the other side, if [38:52] there is a loss for the energy [38:53] companies, [38:54] um you will start to see a greater use [38:58] of nuisance, not just in the climate [39:01] context, but in the control of people's [39:03] lives context. How do you get rid of [39:05] plastic straws? You bring a public [39:07] nuisance claim that says that they're [39:08] causing plastic on the beaches in [39:10] California, right? And what do you want? [39:12] you want them to stop making them [39:13] everywhere. They'll they'll pursue [39:15] greater and greater claims against guns. [39:17] They'll pursue greater and greater [39:18] claims against um everybody in the value [39:21] chain of energy. I mean, I think it's [39:22] important for everyone to understand [39:23] that they're going after the energy [39:24] extractors like at that level. Then they [39:28] will go after utilities who are burning [39:30] the wrong kind of fuel for climate [39:32] change, which will drive up your utility [39:33] prices. They will probably go after car [39:35] manufacturers and say that they are [39:37] making the wrong kinds of cars that [39:38] facilitate climate change. So they [39:40] should all be making EVs and it will [39:43] just work all the way down the value [39:44] chain in an effort to sort of [39:46] fundamentally reshape the economy, [39:48] right? And so I think that that's now [39:52] that's if the court somehow says these [39:54] are all great, right? If the court says [39:56] instead there's no jurisdiction here or [39:59] it goes to an equally divided 44 case, I [40:02] think you'll just get this coming back [40:03] to the court again and again. But I [40:05] think the other aspect of this for [40:07] people to realize is in the absence of [40:08] the court saying that these cases are [40:10] just totally fine in every possible [40:12] respect. This issue of extr territorial [40:16] public nuisance litigation is going to [40:19] come back to the court and come back to [40:20] the court because it will become a a [40:22] horse that the left rides for all of [40:25] their preferred topics until the court [40:28] either says they're great and extr [40:30] territorial public nuisance is great or [40:33] the court says uh okay fine enough is [40:36] enough you can't do these right and so I [40:38] think that's really the trajectory here [40:41] uh with respect to the court in these [40:43] cases [40:44] And and if I can amend my answer on the [40:46] on the first part of this about what [40:47] happens if there's a win. Um I think why [40:50] you saw this big wave of cases is in [40:53] part because uh advocates and activists [40:56] perceived the federal government to be [40:58] less of an available forum to them when [41:00] it came to imposing these sorts of [41:02] changes. So they looked to state level [41:03] efforts to to find the money and the [41:06] change that they wanted and they weren't [41:07] getting from let's say EPA. I think if [41:10] you then take the state angle away from [41:12] them, they're going to shift their [41:13] attention right back to EPA again. [41:15] You're going to see them go all in on [41:17] things like fighting the endangerment [41:18] recision finding, uh, the roll back of [41:20] some of the clean power plan concepts. [41:22] That's then going to become the next [41:24] sort of front of hot litigation is going [41:26] to be those those EPA actions. And then [41:29] I think you're also going to see uh the [41:31] legislative front become kind of ever [41:32] more contentious. It's hard to believe [41:34] it can get worse, but I think it really [41:35] could be. Well, I I think we're already [41:37] beginning to see some of that. I mean, [41:39] in the current permitting debate, for [41:40] instance, over the permitting reform [41:41] bill, um there was kind of a big story [41:43] that broke today talking about how some [41:45] of the activists got together to [41:46] basically talk about how to obstruct the [41:48] bill from passing, even though it's got [41:50] some backing from some key kind of left [41:52] side players. And so, I think if if they [41:55] just don't see the the the big money uh [41:57] win in state court available to them [41:59] anymore, I think uh the federal playing [42:01] field is going to become ever more [42:03] important. And from West Virginia's [42:05] perspective, that's a good thing. that's [42:06] where we think the fight should be [42:07] happening. But uh I just don't want [42:09] anyone under a misapprehension that [42:10] these climate debates somehow go away. [42:12] It's just going to kind of change the [42:14] the relevant playing field. [42:16] >> Yeah. This is where Michael and I see [42:17] this the same way. There's a huge [42:19] apparatus that the left has built to [42:20] push these cases. They have like a [42:22] donorbacked law firm. They have a lot of [42:25] nonprofit efforts. They're trying to run [42:27] all sorts of complicated maneuvers and [42:29] put information into all sorts of [42:30] manuals. And I mean, this is a [42:32] multiaceted, multidia, if you want to [42:35] call it that, um, push backed by huge [42:37] amounts of dark money. If they lose the [42:41] ability to do these cases, they that [42:43] energy will go to these climate homicide [42:46] cases, these consumer protection cases, [42:48] they'll go to to federal efforts, right? [42:51] If they win, it will just lead to a [42:53] greater explosion of these exact cases, [42:55] right? So, it's almost like they've got [42:58] water going through a hose and the [43:00] question is where does it go? And so, [43:02] that I think is is a big deal. I also [43:04] flag I think Michael's probably [43:06] underelling. I think Michael and I see [43:08] there's no distinction between a lawsuit [43:09] that seeks to accomplish these goals and [43:11] a state legislature passing a bill that [43:14] applies penalties for extr territorial [43:17] behavior all over the world. But [43:19] somebody that that will have to be [43:23] that will have to be litigated by [43:24] somebody unless the court just drops a [43:26] footnote that matches the SG's brief [43:29] that says it there's no difference. [43:34] >> Yeah. And I it probably goes without [43:36] saying, but it seems like if one of [43:37] these just even this type of suit is [43:40] successful, energy costs for the average [43:43] consumer would presumably skyrocket [43:45] because you know oh when you're talking [43:47] about the creation of a billions upon [43:49] billions abatement fund. Um you know the [43:52] where that money comes from is [43:54] ultimately uh in large part going to be [43:56] consumers paying higher energy prices. [43:58] >> Oh, I think it's really really important [44:01] to emphasize this point. The point of [44:03] these lawsuits, which has been made very [44:06] clear by the advocates and in the [44:08] launching of these cases to begin with, [44:11] is is a coho co coercive [44:14] effort to either to for the most part [44:17] either force a carbon tax through [44:20] Congress or bankrupt the energy [44:24] companies because the thesis is that if [44:27] you're number one thing pushing them [44:29] into bankruptcy is legal claims that the [44:32] cities and counties bringing these [44:34] claims will become the largest creditors [44:36] which means that they will obtain the [44:38] post bankruptcy um equity and then they [44:41] will own the energy companies and be [44:43] able to use them to fulfill their Green [44:46] New Deal dreams. So to be very clear, [44:48] it's not like a secondary effect that [44:50] energy prices will go up because of the [44:52] billions of dollars, Chris. Like I think [44:53] that's right. The point of these [44:56] lawsuits is to force an energy [44:58] transition that is premised on higher [45:01] costs for energy so that people use less [45:04] energy so that they fit within net zero [45:06] guidelines. Right? The only way to get [45:08] to net zero is to make it so that it's [45:10] impossible for people to have air [45:11] conditioning or two cars or all these [45:13] other things. Right? So the point of [45:15] these lawsuits is to fundamentally [45:17] reshape the mix shift of energy in [45:19] America, lift the prices and reach net [45:22] zero. That's not like that's not like a [45:25] knock-on effect. That's the actual deep [45:28] point as said by the advocates. [45:31] >> Yep. Yep. And we've seen how well that [45:33] works in Europe. Um so two two questions [45:37] I've got in the chat actually both [45:39] related to things Michael mentioned [45:41] there at the end. Either of you are [45:42] welcome to take these. The first one is [45:44] uh does rescending the EPA's [45:47] endangerment finding affect the Clean [45:50] Air Act preeemption argument? [45:54] >> No. [45:56] I mean, it really is that [45:57] straightforward. Um there's a few [45:59] reasons why. I I think the simplest [46:01] answer is that the preempt the [46:04] preemptive effect of the Clean Air Act [46:07] comes from the statute itself and not [46:09] from any particular regulatory action [46:10] that EPA may or may not take. So when it [46:13] comes to EPA's choice to um exercise [46:16] regulatory authority or perceive that [46:17] certain requisite findings can't be [46:19] made, that doesn't affect the scope of [46:21] the Clean Air Act. The Cleaner Act is [46:23] still there. Um I think the other aspect [46:26] is though that if if there is let's [46:29] let's say that like you kind of thought [46:30] creatively and you thought the [46:31] endangerment finding reflects some sort [46:33] of gap for instance in the way in which [46:35] carbon is regulated under the clean air [46:37] act congress's deliberate choice to [46:39] regulate or not regulate is equally [46:42] preemptive and a actually kind of makes [46:44] a point of saying you know to the extent [46:46] that there are areas in which EPA has [46:49] chosen not to regulate and Congress in [46:50] turn has chosen not to regulate in this [46:52] space you we think that's a reflection [46:55] of a deliberate judgment that is [46:56] entitled to the same sort of respect. [46:58] And so even if it's the case that you [47:00] view uh the endangerment finding as [47:03] reflecting some uh judgment about the [47:05] particular scope of the of the statute [47:07] in its attendant preeemption, that still [47:10] deserves respect in the same way. It [47:12] still doesn't kind of reopen the game [47:14] when it comes to state action. I I will [47:17] say too that the the question was [47:19] focused mainly on the Clean Air Act. The [47:21] endangerment finding of course has no [47:22] impact at all on the common law stuff [47:25] and maybe more importantly the [47:26] constitutional stuff. So you know the [47:29] example I would give you is that [47:30] Colorado for instance uh pushed aside [47:33] the federal common law angle because [47:35] they thought the Clean Air Act displaced [47:37] all of that so you could just ignore it [47:38] all. Now that's that's itself misguided. [47:40] But if you assume that the Clean Air Act [47:42] kind of moves away then even under the [47:44] Colorado Supreme Court's logic all that [47:46] federal common law then becomes relevant [47:47] again. So you'd still have at least two [47:49] or three different ways in which this [47:50] lawsuit can't go forward. So you'd still [47:52] get to the same ultimate result. [47:55] >> I think I think one thing that's that [47:57] that is also interesting here is is that [48:00] um [48:02] you know Michael's claim this in the [48:05] best possible way. A this the the the [48:08] case has this magical line that says [48:10] that um through the Clean Air Act, [48:12] Congress has basically given to the [48:14] federal government the question of [48:16] whether and how to regulate um GHG with [48:20] respect to climate change, right? [48:22] Because one important thing with respect [48:24] to the endangerment funding, other [48:25] things is like you can still regulate [48:27] greenhouse gases if like you were [48:29] regulating them for direct safety, [48:31] right? Like if if you were worried that [48:33] methane was going to reach such a high [48:34] level in a state that it was literally [48:36] going to kill people in the air where [48:38] they breathe it and they die, right? You [48:40] could still imagine that you could still [48:41] regulate it. The question is whether you [48:42] can regulate it because of climate [48:44] change effects. That's like the real [48:46] question in the endangerment finding. [48:47] Okay. Um and what a says is that [48:51] regulation of GHDs or climate change, [48:53] the question of whether this goes to [48:55] Michael's language and how is given to [48:58] EPA. So like rescending the endangerment [49:00] finding um [49:03] all of that it takes us back to almost [49:06] where we are with a you had the [49:08] endangerment finding which is just a a a [49:11] predicate to actually writing rags but [49:13] there were no rags with respect to like [49:15] stationary sources and GHGs and climate [49:18] change at the time of a court was like [49:21] it has been conclusively given to the [49:22] feds whether and how right so now we're [49:25] going back and and there's no regs with [49:27] respect to stationary sour sources and [49:29] GHGs and climate change and they're [49:31] resending the endangerment finding which [49:33] is itself not a regulation, right? And [49:35] there's a great there's great language [49:36] for anybody who cares in there's a new [49:39] EPA power plant rule that's been [49:41] proposed and in the preamble they've got [49:42] this great it's under 111. There's this [49:44] great stuff that says it like it has a [49:46] really good explanation of why the [49:48] recision of the endangerment finding [49:49] does not remove the preemptive effects [49:51] in these spaces um because the [49:53] re-engagement finding is itself not [49:55] regulation and because of the language [49:58] from a so I just would commend anybody [50:00] to go and look at that because I don't [50:01] think that the recision of the [50:02] endangerment finding did anything to [50:04] change the preeemption analysis here in [50:06] a meaningful way. [50:09] >> Thanks. We've got one other question [50:11] before we wrap up. Um, the questioner is [50:13] looking for any recent examples of state [50:16] courts or legislatores [50:18] responding to these types of consumer [50:20] litigation [50:22] u cases by narrowing the scope or size [50:25] or timing of the claims allowed under [50:28] either, you know, state deceptive [50:30] practices laws or other state law [50:33] theories. So, we talked a little bit [50:34] about states, you know, trying to [50:36] legislatively achieve the same thing the [50:38] plaintiffs here are achieving, but I [50:40] guess we're, you know, are there any [50:42] states trying to fix this problem as a [50:44] legislative matter? [50:46] >> I mean, Kansas last session in their [50:49] legislature passed a bill that basically [50:52] says you can't use public nuisance over [50:54] like licensed, lawful, regulated [50:56] products. Um and if a local government [50:59] wants to bring a claim for nuisance, it [51:01] can only bring such a claim if the uh [51:04] nuisance solely arises within the [51:06] jurisdiction of the government. So they [51:08] would be allowed to bring a claim over a [51:10] tree. They'd be allowed to bring a claim [51:11] over a homeless encampment, but they [51:13] would not be allowed to bring a claim [51:14] over global climate change. And I think [51:17] that that is exactly what you're going [51:19] to start to see a lot of red [51:20] jurisdictions do because you know Chris [51:23] Charleston South Carolina brought one of [51:25] these public nuisance claims, right? It [51:27] wouldn't surprise me if the South [51:28] Carolina legislature decided that like [51:30] we get to make those decisions in [51:31] Charleston, right? Um Kansas basically [51:34] has said the same thing. Local [51:35] governments get to solve local problems. [51:37] They don't get to be international [51:38] regulators. That would turn that would [51:41] turn our constitution upside down and it [51:43] would turn federalism upside down. [51:46] And I I think you you might see this [51:48] coming in stages because I think [51:50] honestly there are um a few places West [51:54] Virginia among them where I think [51:55] legislators have looked to see whether [51:56] the courts are going to give them some [51:58] appropriate limits. Um so in the [51:59] nuisance space for instance there was [52:01] obviously some extensive litigation in [52:03] the opioid context and our court was [52:04] asked whether given the heavy regulation [52:06] of that space a nuisance claim was [52:09] really an appropriate action to bring [52:10] against that highly regulated product. [52:12] Um the court instead punted the [52:14] question. it was a certified question [52:15] from a federal court and just declined [52:16] to answer it. And I think that when uh a [52:19] court does something like that, either [52:20] issues an adverse decision or or just [52:22] refuses to engage with the question at [52:24] all, that's going to be the prompt that [52:26] we're going to need to to kind of kick [52:28] the the red state legislators into gear [52:30] and maybe place some more substantial [52:32] limits on these nuisance actions. [52:36] >> Great. Well, thanks thanks to our [52:37] panelists uh Michael and O and uh hope [52:40] you will all join us in listening to the [52:42] argument uh happening next week. Um and [52:46] uh stay tuned for future Federal Society [52:48] webinars.
