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TOM WHEELER:

Welcome to the Econews Report. I'm your host this week, Tom Wheeler, Executive Director of EPIC. Joining me is my friend and colleague, Matt Simmons of EPIC. And that voice, of course, for longtime Econews listeners, is going to be Scott Greacen of Friends of the Eel River. Welcome to the show.

SCOTT GREACEN:

Well, thanks, Tom! It's great to be back. I'm so excited to address this week's topic.

WHEELER:

Well, we are nearing Trump's 100th day in office, so this has it only been 100. So we're not quite there yet, the big milestones coming up, but we thought it would be an appropriate time to take a look at how the first 100 days has gone and to reflect on some of the crap we've been living with, and to present this as part of a larger narrative, which is Trump is fulfilling some of the long-held wishes of the conservative legal movement, and he is having some success, he's having some failures, and we can talk about some of those. So let's get into this.

GREACEN:

Like, let's be explicit with the audience. We started this as an effort to have a conversation about this flood of executive orders that Trump has issued, and then decided that, actually, we need to talk about that in the context of this other set of changes that are also overwhelming in their own way. So this is gonna be a complicated conversation.

WHEELER:

Well, it's a good thing that our listeners are such smart people. He panders to the audience. So we've got that here is all I can. Yeah. Somebody understands. So, so Matt, you were in law school most recently. And so you have most recently dealt with the Federalist Society and some of the conservative legal movement students. Can you, can you talk about this aims of this conservative legal project when it comes to regulation?

MATT SIMMONS:

Yeah, so the Federalist Society fundamentally believes that ever since the New Deal, the government has been over-regulating corporations and individuals and preventing them from making as much money as they could be making by polluting the planet.

WHEELER:

Or in their view, expressing their liberty as protected by our constitution.

SIMMONS:

That would be their view. They were very frustrated because even when a Republican president was in charge and could appoint a Supreme Court justice or any justice in the judiciary, sometimes they would appoint someone and they would still rule in favor of the environment, even though they were appointed by Ronald Reagan or another conservative justice. And so the Federalist Society was explicitly formed to recruit ideologue conservative lawyers to enter the judiciary and become judges and justices and work their way up the ranks and so that you could guarantee that legal opinions would start having this conservative bent. And so the apex of this is that when Donald Trump ran for office the first time, he was actually handed a list by the Federalist Society of approved judges. And if any Supreme Court justice vacancies opened up, he had a list approved by these people that he could choose from. And he did choose from it. And that's how we got this current batch of new.

WHEELER:

Justices, Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch. Thank you, Scott.

SIMMONS:

We're all now living in the Federalist Society's world in terms of.

GREACEN:

corporate Supreme Court in Atlanta. And that's, of course, not the first time in American history that we've seen concentrated economic power achieve that kind of dominance. There was a time after the Civil War when the Supreme Court was almost entirely dominated by railroad lawyers, and it had really pernicious, deep consequences for the United States for quite a while. It led to that era we've talked about, the Lochner era, that the New Deal was really a response to. So in a lot of ways, it feels like these guys want to take us back to before the 20th century. They want to repeal the last century.

WHEELER:

And so in recent years, we've had a number of decisions that have substantially made great progress for this sort of libertarian pro-business anti-regulation movement. We've had Loper Bright, which overturned Chevron. We've had a whole show or a number of shows on this and we'll link to those in the show notes, which you can also find on the lostcoastoutpost.com.

GREACEN:

Summarize this for us.

SIMMONS:

The really quick and dirty summary is that Chevron required judges to respect the decisions of agencies when they decided how to regulate something, and Loper Bright overturned that. And so it was a power grab by judges away from agencies so that judges decide how clean the air should be or how clean the water should be instead of scientists at these agencies.

GREACEN:

Corner post, meanwhile, the court said your injury determines when you can start challenging an existing regulation. So even if a regulation's been on the books for 40 years, if you claim a new injury because you just started a business and you think this regulation sucks, you can challenge it anew, which seems like an invitation to go after every regulation in the world.

WHEELER:

Oh, we, we have now exposed a significant portion of regulations of rule makings by the federal government to potential challenge, and these cases will be heard by a more conservative judiciary because we've had appointments made by judges approved by a list from the federal society. So that alone should be distressing enough. And now we have a slew of executive orders coming in on top of this remaking of the rules of the game in our article three courts and our judiciary. Yeah.

GREACEN:

Let's talk for a minute about the nature of not only these executive orders, but the flood of executive orders that Trump has issued in the second. Sure. Go for it, Scott. I think the first thing to note is simply that Trump is systematically asserting power that the president does not, in fact, possess under the Constitution. As Jared Huffman said in Fortuna this past Saturday, these are imperial edicts, not executive orders. These are assertions of a power in the White House to make law, and as we all know, Congress makes law. You can't just say this is how it's going to be. For example, in one of the more notoriously, hilariously weird of these executive orders, the shower pressure, the water pressure executive order, Trump actually asserts that the Administrative Procedures Act no longer applies, that there's no notice and comment necessary on this change because I say this is how it's going to be. That's going to be the outcome, so you don't need to do notice and comment.

WHEELER:

Oh, well, so we have a slew of executive orders and the number of executive orders and proclamations and memorandum and other legal opinions coming out of the executive branch is, is huge. And, and there have been many legal scholars had have said that there's a strategy behind this, which is just to overwhelm and to flood the field so that it becomes more difficult for people to react, to file the lawsuit, to go in and challenge them in court, to just, if you take a lot of wild shots, sometimes some will go in and you'll make progress just by playing, playing the odds, playing your numbers that a lot of these things are poorly supported and probably unconstitutional, but it might not matter. That's not really the point. It's trying to operate within the ordinary bounds of the law.

GREACEN:

Though there is a question, I think, outstanding, which is the extent to which the Republican bare majority in Congress will follow up on Trump's orders by passing laws that do actually put in force the changes he's suggested.

WHEELER:

Well, so Scott, I think that that's an astute pointer or a point of observation, which is, why is the Trump administration acting in this way, right? So we have multiple forms of law, in some sense. So Congress is the most clear place where one can have law. Congress gives some authority to the executive branch, and the executive branch can do things consistent with Congress's delegation of authority to issue regulations and whatnot to fulfill congressional purposes in passing these laws. And the executive branch can sometimes invoke its own constitutional authority to do certain things.

GREACEN:

particularly in foreign policy.

WHEELER:

particularly in foreign policy, as we've seen them say, we don't have to listen to Article III judges to return migrants who we've illegally deported because it's an area of diplomacy and this is exclusively reserved for the executive branch.

GREACEN:

just an attempt to extend that strong foreign policy power to a place it doesn't belong, but yeah.

WHEELER:

So my point in talking about this is we're seeing a lot of action from the executive branch in part because this is the way that one can act quickest. If you are a Republican administration, you're not going to have to try to build congressional majorities and try to pass legislation. But two, I think that this is the way that Trump has to act because so many of the things that he is pushing are out of bounds. They would not be able to get through Congress, particularly a Congress that maintains a 60 vote filibuster rule. So we're seeing the executive branch exercising power because to move forward on this conservative ideological agenda, it has to act alone and it has to assert powers that it questionably possesses.

GREACEN:

And I think you're getting at something important there, Tom, that's it's the radical nature of this agenda. It's the extreme nature of the policy changes that makes it necessary to do those changes by executive order. What the first Trump administration showed was that there were a lot of traffic calming elements in the in the American government that slow efforts to make dramatic changes, particularly in agencies and for good reasons. And what this administration is doing is bulldozing all of those impediments where it can find them as quickly as possible in order to accomplish dramatic change, drastic change. And the problem, of course, is that it was not empowered to do that as much as it claims a mandate from a slim popular majority. OK, we heard about the Project 2025 agenda and see our previous radio show with Jared Offman for that, but then Trump disavowed it. And certainly didn't hear that Elon Musk intended to use Trump's authority to fire a quarter of the federal workforce in a demented version of the purge. But that's what's happening. And all of these things play together to reduce those barriers to imposing that imperial will.

WHEELER:

Oh, so there, there's also an interesting conceptual legal strategy here on regulations that is being advanced by the Trump administration. One that is pretty foreign to the United States, which is this idea that presidents have this power to, to set regulations and those regulations will go away unless reasserted that. So one of the things, the principles of the American legal system is that we have a consistency of law, that you have laws that roll over between executive administrations, between Republican presidents and Democratic presidents. We just like to promote clarity and consistency of laws and interpretations.

GREACEN:

To summarize and interpret, President Nixon signed the Endangered Species Act. It didn't go away when President Carter took office.

WHEELER:

And one of the things that high-level conceptual ideas that the Trump administration is pushing is that regulations should always have some sort of an end date, that they should be time-limited and they should have to be renewed.

GREACEN:

that the natural state is no regulation at all, is what you're saying.

WHEELER:

And we've seen Elon Musk say this a number of times, and we've seen executive orders come out of the Trump administration that have demanded this, which is we expect, I forget the exact number, but we expect to see you kill five regulations for every one that remains, or something along those lines. So just inherently, we see an interesting theory of government being advanced through some of these executive orders. And one that questions this long American tradition of how the presidency and executive power works.

SIMMONS:

Can I add one more thing here? Yes, please. All of those previous regulations and prior regulations were passed through the Administrative Procedures Act. And so they had notice and comment. They went through a big public process. I mean, that process doesn't just exist so that us— A challenge to the court. Yeah. They were a challenge to the court. That process doesn't just exist so that us enviros can complain about it. It's also so that the industry understands what's happening to them and can weigh in on what should be done. And so all of this process that we had had to set up this regulatory scheme, Trump has completely thrown all that out the window as he's trying to deregulate it. And so it's not just the idea that the pure state is no regulation. It's also the idea that the president can just wake up one morning and change everything depending on how he's feeling that day. And that creates this real terrifying inconsistency in how everything's going to work.

WHEELER:

You are listening to the Econews Report. And we are talking about the Trump administration's first 100-ish days in office and its impact on the environment. So we wanted to avoid in this show a listicle of the worst excesses of the Trump administration here and just hit 30 seconds per point. Oh, he did this and they did this and they did this. But I want to use perhaps one of these examples, or one of these regulations that he's seeking to rescind as an example of this. So recently the Trump administration put out formal notice that they intend to rescind the definition of harm under the Endangered Species Act. This is why it matters. Since 1975, Republican and Democratic administrations have interpreted this word, harm, to mean that it includes habitat modification that actually injures endangered species. So harming endangered species is prohibited. Destroying their habitat, therefore, is prohibited.

GREACEN:

interrupts their reproduction, other essential life behaviors.

WHEELER:

breeding, feeding, anything like that. Anything that could cause a species to go extinct. If you mess with their habitat, you're messing with the species itself. And I think that that's been a logical and consistent and well-applied rule. It makes sense. It, I believe is baked into the endangered species act itself. And it's been something that industry has relied upon green diamond resources company, as much as I feed with them. They have a habitat conservation plan because they, they impact endangered species habitat through their locking operations, the humble Redwood company has a habitat conservation plan. The humble Bay municipal water district has a habitat conservation plan. We we've had substantial reliance on this consistent definition of harm. And now the Trump administration has said, look, we, we are going to revoke this. We are not going to do NEPA on it. We're not going to do all of this other thing that we usually do when we substantially change the rules. We're just going to delete this definition that has been in place for 50 years. And so I have to admit last week was when this came out, Matt can testify just how despondent I was sitting around in the office.

GREACEN:

It didn't last for 20 minutes.

WHEELER:

Oh, man, no, I made a lot of jokes, real dark, dark, dark jokes. So, so these are the things that the Trump administration is doing. This rescinding of this definition of harm, which might sound innocuous. It might sound like we're flitting around at the edges of.

GREACEN:

Knocking out of the Endangered Species Act is absolutely crippling the Endangered Species Act. And as we keep pointing out, that's one part of a many part assault on those kinds of structures. So it's not just that the ESA would no longer apply in this way. It's also that the Fish and Wildlife Service and National Marine Fisheries Service won't have anybody working for them who's able to go and see the harm and document it in a way that can actually be used to control the problem.

WHEELER:

And, and back to our discussion of the, the sheer number of these things that are coming out, it stretches the capacity of the environmental movement to challenge all of these things, looking, looking forward, we're going to litigate. If they move through and delete the harm definition, we're going to litigate that. But this is just one thing out of hundreds out of thousands of little tiny changes they are making to our laws to all undermine them. And so at some end there, there's just not the legal capacity. Like we don't have enough lawyers. We don't have enough judges to hear the cases.

GREACEN:

Hey, hey, how many goons did you sue today?

WHEELER:

Yeah, yeah. So here's, here's a plea for folks out there. Donate to Friends of the Yale River, donate to Epic, but also donate to Earth Justice and the Western Environmental Law Center and all of our friends who we are reliant upon to bring a lot of our litigation.

GREACEN:

I just wanted to make an observation, riffing on some stuff that Matt was talking about and that you were talking about before you started talking about the Habitat rule, which is this sense on the part of the Trump administration that they are on this kind of holy mission to remake America, and that at the core of it is this thoroughly weird and un-American idea advanced by people like Curtis Yarvin and his tech bro financier, the people who support him. His tech bro patrons. And the basic idea here is that Curtis Yarvin is a modern day monarchist.

WHEELER:

Chris Yervin.

GREACEN:

Curtis Yarvin is a weirdo internet troll who has become semi-famous and celebrated among the likes of Mark Andreessen, Mark Zuckerberg, and Elon Musk. His vision is of a future society dominated by tech elites who have a combination of financial and technical power that allows them to rule the masses. And his basic message to the rich is, you don't have to put up with this democratic nonsense anymore. Lay waste to it, do it quickly, seize control, and make yourselves the rulers of the world. And that is exactly what Elon Musk is trying to do. And it sounds absolutely insane. Like I believe I can totally understand why somebody would look at the radio right now and go, OK, Greacen's lost it. Enough. I'm going to go outside and take a walk. And you should take that walk. But unfortunately, this is not the way I'm crazy. And this is what is real. And it is crazy. It is absolutely crazy. But that's what we're up against, is a vision that does not include a democratic future America, but one that works for the benefit of its new owners. It's a wildly different thing.

WHEELER:

So if there is some bright side here, it's that Congress has heretofore not been that active. As we've said in other parts of the show, they don't have the type of majority needed to enact significant actual lawmaking change, right? The Endangered Species Act continues to exist and will continue to exist.

GREACEN:

Do they have public support for these changes? Yeah.

WHEELER:

Nor could they get away with it. So, so this is all executive branch behavior.

GREACEN:

There's the weakest part of all this is the phenomenal overreach that we're seeing here. And as the Trump administration crashes the national and global economy, and as it brings ruination, not just to the environment, but to many American industries and businesses and cities and towns and states, they are going to lose popularity catastrophically. And I think there's the hope for me, the silver lining here is that the things that Trump is after are the things we really need to protect and reinforce, and that we've needed to protect and reinforce for a long time, our democratic institutions, our capacity for self-rule, our capacity to take care of each other, and the planet. We started to do that in a decent way under Biden, but we didn't have the popular majority in a broad consensus in our society that we need to really move forward with that. I think following this, we might.

WHEELER:

We have elections in 2026, as a reminder.

SIMMONS:

I think none of our orgs are endorsing anyone.

WHEELER:

Nor can we endorse anyone. We are a nonpartisan political. We are not political. We're nonpartisan nonprofit organizations. So something that did not come to pass something that did not come to pass that we were all anticipating was a threat, a rumor that on earth day Trump was going to deem us terrorist environmental organizations and we're going to strip our five one C three nonprofit status. So this, this hasn't happened. Hasn't happened yet. Still time. I, I think that I was unique in environmental leaders in saying, come at me, bro. Because it would clearly be unconstitutional and I would love, I would love to have Epic V Trump. I, I, I have a capacity for pain though that other orgs don't have. But so.

GREACEN:

But the problem here is not that Trump was going to go after EPIC. The problem is that Trump was going to go after the environmental movement's equivalent of Columbia University, which is to say the Natural Resource Defense Council, the League of Conservation Voters, these august established institutions, not so much because of what they've done, but to make an example for the others, to show the world what he's capable of doing to all of us.

WHEELER:

Well, so here's where I can't believe I will ever say something nice about Harvard, but here's where Harvard is. Yeah, I hate to say it, but. Yeah, yeah, they're the catalyst for the resistance that we need, right? Which the Trump administration had gone after a number of law firms who had employees that have worked for the Democratic Party or other sort of causes that Trump found objectionable. And so many of them rolled over on their back and played dead and acquiesced and worked with the Trump administration and begged and kissed the ring. We have had a fear-based response to Trump's world. And then Harvard said, no, we're not going to comply. We're not gonna be like Columbia. We're not gonna agree to your demands. And I think that this is the resistance that we need at this moment, which is the Trump administration is claiming all sorts of powers that they don't have. Tell them no, tell them to see you in court.

GREACEN:

Well, honestly, I kind of wish a buddy would, because I don't know if you guys remember this old movie called Star Wars, where this guy, Obi-Wan Kenobi, like is getting killed by the big villain and it's terrible and like the great hero is going to die. And he says, I will become more powerful than you can imagine. And that, I think, is the scenario we're actually in when Trump threatens to go after civil society, because you turn off the 501c3 status of a bunch of little non-profits, so what? You activate the American people in defense of their fundamental liberties, you're looking at somebody. And I think that's where we're headed with this. People are not happy.

WHEELER:

So what are we likely to continue to see? What have you seen projected or rumored that hasn't come yet that we should anticipate?

GREACEN:

Well, the one I'm really not looking forward to is the broad-scale logging initiative across American public lands, including the Forest Service and Bureau of Land Management lands. That's gonna hit this region and the whole American West hard. We haven't yet seen what the real plan is, but I'm sure we're gonna in the next few months.

WHEELER:

Trump said you need to gin up logging on public lands and directed the Forest Service and the Bureau of Land Management to find all the powers that they can to bypass whatever laws that they can to expedite as much logging as possible.

GREACEN:

That destruction is an end in itself.

WHEELER:

And the forest service have complied to a degree with this. We've yet to see it be implemented. And so I'm waiting for the first timber sale to have the Trump emergencies that bypass the national environmental policy act and environmental impact analysis. So when those come, because we will anticipate that those will come at some time, Epic and other groups will be there, but there's nothing as of yet to challenge because we just have seen these orders come from on high that have yet to be implemented. And it's the implementation that's going to provide the vehicle.

GREACEN:

for the Forest Service is that they've lost thousands of employees and their capacity to actually do much of anything. It's sharply limited at the moment. So there's some senses in which this stuff is at cross-purposes.

SIMMONS:

On the climate front, I just want to call out that the EPA is revisiting the endangerment finding that found that greenhouse gases are actually a threat to public health. And if they were to remove that, it would basically get rid of the ability for the EPA or the Clean Air Act to regulate greenhouse gas pollution at all. Along with that, they're also reducing regulations for coal-fired power plants, exhaust out of every kind of vehicle, all of this progress that we've made over the last 20 years in terms of regulating, particularly carbon pollution, but also just air pollution generally is being rolled back. And I'm sure there will be lots of fights over that.

GREACEN:

I want to add one more recent development that was not in Project 2025 and wasn't in any of the DOJ hit lists, and that's the move by the Trump administration to look into cancelling PG&E's plans to remove the Yale River dams starting in 2028. The new development is basically a move by the Bureau of Reclamation at the direction of the White House to look into reprogramming money that's already been allocated to help develop diversion works that will keep a flow of water going over to the Russian after dam removal. Instead, they want to use that to just buy the existing dams and keep them in place. This is one of the stupidest and most counterproductive ideas I've ever heard of, but it's absolutely par for the course from the Trump administration.

WHEELER:

And thank you so much, Lake County, and all of you idiots that have appealed to Elon Musk. Thanks. Thanks a bunch. Well, I hope that this episode was useful for listeners. We are a bunch of government nerds. We're a bunch of lawyers that really appreciate the Constitution, and the fine workings, and the different branches, and whatever else. I hope that, if nothing else, the Trump years give us a fonder understanding of how our government works, and the kind of different leverage points. Because we have all learned something, I'm sure, in the last 100 days. So it's been about 100 days of Trump. We have, what, like 1,000 left or so in this term? Who can say? Who can say? Who can say?

GREACEN:

The wind can blow so hard sometimes.

WHEELER:

You know 25th amendment. Let's go babe. Let's do it

GREACEN:

I just want to say one more thing, which is that I've always understood, especially our environmental laws, but also our safety laws, our public health laws, this whole structure of the New Deal, as promises that we make to each other and to the future about how we're going to take care of each other. And what I see right now is the Trump administration breaking those promises. And you could hear how that feels.

WHEELER:

Yeah. Yeah. Yeah. It's tough. So I hope you all hang in there and we'll be around to commiserate with you.

GREACEN:

Actually, no, we're gonna make those promises good. Yeah. That's the thing. We are going to pass through this fire and come out stronger, because we have to.

WHEELER:

Like this is a Woody Guthrie song of some sort. All you fascists bound to lose, right? That's it. Yeah. All right. So thank you so much for joining us and join us again next week on this time and channel for more environmental news from the North Coast of California.