UNBIASED - Week in Review: February 13-19, 2023

Episode Date: February 20, 2023

1. Norfolk Southern Train Derails in East Palestine, Ohio. Why Is It Just Now Making Headlines? (1:50)2. Antony Blinken Warns Chinese Foreign Minister The U.S. Is Serious (18:22)3. Biden Heads to Poland to Discuss Ukraine Defense Strategy Among Other Things (19:47)4. Supreme Court to Hear Oral Arguments on $400B Student Debt-Relief Plan (20:27)All sources can be found on www.jordanismylawyer.com.Follow Jordan on TikTok and Instagram for more content @jordanismylawyer. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Please gamble responsibly. Gambling problem? For free assistance, call the Connex Ontario helpline at 1-866-531-2600. BetMGM operates pursuant to an operating agreement with iGaming Ontario. You are listening to the Jordan is My Law podcast. This is your host Jordan and I give

you the legal analysis you've been waiting for. Here's the deal. I don't care about your political views, but I do ask that you listen to the facts, have an open mind and think for yourselves. Deal? Oh, and one last thing. I'm not actually your lawyer. Welcome back to the Jordan is my lawyer podcast, your favorite source of unbiased news and I'm not actually a lawyer. that'll cover like i said the first half of the episode second half of the episode we're going to talk about anthony blinken warning china about that surveillance balloon biden going to poland on monday or today depending on when you're listening to this and the last story will be about student debt relief oral arguments that are happening in front of the supreme court on february 28th so i will obviously cover that story in much more detail once a decision is rendered which we likely won't have until the end of the term in June. But for now, I kind of want to put you guys on notice, give you guys the inside scoop

as to what is actually being argued and kind of like the legal basis for those cases. So we'll finish the episode with that. But before we get into the stories, I just want to give you guys a quick reminder, as I usually do, please leave me a review on whichever platform you listen, whether that's Google Podcasts, Apple Podcasts, Spotify, whatever it is. I really appreciate you guys taking the time to do that. Of course, five stars is preferred if you love my show. So let's get into today's stories. On February 3rd, just before 9 p.m. Eastern Standard Time, a Norfolk Southern train derailed near East Palestine, Ohio. Why are we just now talking about this if it happened on February 3rd? Unfortunately, that's because this is just now really making headlines,

at least in the last week, I should say. On top of that, it's been more than two weeks since the crash, and we haven't really heard much from the White House and or the EPA. So a lot of the residents in the area and people that are not happy about this derailment are kind of calling on the White House and the Biden administration to say something and or go to the site, go visit, whatever it may be. So before we get into the facts of what happened, I just want to quickly touch on Norfolk Southern. It's one of our country's top transportation companies. Its first train began operating on Christmas Day in 1830, but it didn't become Norfolk Southern as we know it until 1982 when Norfolk and Western and Southern consolidated. So that is the deal with Norfolk Southern.

Now, East Palestine, Ohio, is a small town on the Ohio-Pennsylvania border. Its population is only about 4,800 people. It is a very small town. And those residents are being, they're pretty affected by this. I mean, again, we'll get into it later in the story, but they are not in a great place right now. So while the majority of rail cars were carrying things like cement, steel, and even things like frozen vegetables, 20 of the 150 rail cars were carrying hazardous material. Not all 150 rail cars derailed, only about 36 of them actually derailed,

and 11 of those 36 that derailed were carrying these hazardous chemicals. These hazardous chemicals included things like vinyl chloride, ethylene glycol, monobutyl ether, things I can't even pronounce, and I'm actually not even going to try to pronounce, but just know that they are not good, not good things coming out of this train. Okay. So vinyl chloride is a manmade substance. And the reason I'm touching on this chemical the most is because this is actually what was contained in five of the cars and was actually intentionally burned off, which created even more toxic chemicals. So we'll talk about that more, but vinyl chloride is a man-made substance. It is the key ingredient in PVC, so plastics, and at room temperature, vinyl chloride is a sweet smelling colorless gas, but inhaling it

can actually cause things like shortness of breath, headaches, dizziness, chronic exposure has been linked to things like liver damage and cancer. It is a recognized carcinogen by the EPA. So once the cars crashed, a fire ignited, and at one point there was fear that there could have been this catastrophic explosion due to rising temperatures inside one of the rail cars. So the officials made this decision to kind of conduct a controlled release of the vinyl chloride. And what they did is they took these five rail cars, they dumped all the contents into a pit, and they lit it on fire. The unfortunate reality of doing something like that is that

burning vinyl chloride can actually produce other toxic chemicals. So what the officials did is they ordered an evacuation of a one by two mile area around East Palestine on both sides of the state's border. So both the Ohio and Pennsylvania side. And officials were even threatening to arrest the people who didn't evacuate, and they would have been arrested for misconduct in an emergency. So this is definitely a pretty serious situation. On February 6th, which was three days after the derailment,

the five cars containing this vinyl chloride were burned. Well, I should say the contents of these cars were burned in this big trench. This created a huge plume of black smoke in the surrounding areas. And two days after the burn, the fire was extinguished and the evacuation order was lifted. So on February 8th, the residents were told that they could go back. It was safe for them to return. Allegedly, officials from the EPA measured the air quality and deemed it safe. I don't know, because since then, residents have returned and they've been experiencing

all of the neurological symptoms that would be present if someone were breathing in these toxic chemicals. So things like nausea, headaches, dizziness, fainting, some people are even experiencing rashes. So is the air safe? I don't know. It really boils down to whether or not you trust the EPA's measurements and what they're telling the public. Water samples were also taken last week from a creek that runs through the town. And allegedly, again, the water samples are showing very low levels of these chemicals that, you know, may have made their way into the stream. And that is according to the Ohio EPA. Despite those findings, right, these findings that very low levels of these toxins have been found in the water. More than 3,500 fish have died in the nearby waterways following this derailment. Obviously,

that's a good indication that there are some toxins in this waterway. And in addition, the contaminants released in the derailment did in fact reach the Ohio River. This is according to the Ohio EPA director and Vogel. So the Ohio River is very large, and Vogel acknowledged that. And Vogel said that, quote, the Ohio River is very large, and it's a water body able to dilute the pollutants very quickly. Now just keep in mind that the Ohio River spans 981 miles. It travels through Illinois, Kentucky, Ohio, Pennsylvania, and West Virginia. Cincinnati, which is right on the Kentucky-Ohio border, actually just announced on Saturday that they would be shutting down their Ohio River water intakes as a precautionary measure, and they will

also be conducting additional testing within the next week or so. Residents in East Palestine have said that things have seemingly gone back to normal. You know, the weather has been nice. It's been sunny. It's been windy, almost like nothing ever happened, but they are saying that it does feel like they have this metaphorical hazardous cloud looming over their head, not knowing what this is going to do to their futures, how it's going to affect them down the road. So as far as why this train derailed, the investigation isn't complete. The investigation is being done by the National Transportation Safety Board, but early signs are suggesting that a faulty wheel bearing on one of the rail cars may have

caused the derailment. Video footage from a home near the crash site shows what appears to be a wheel bearing in the final stage of overheat failure just before the derailment. So that's where they're getting that information from. Obviously we'll know more once the reports start to come out, but let's get into kind of why people are not so happy with the government and how they're handling the situation. So on Thursday, February 16th was the first time a top Biden administration official went to the scene of the derailment. That's almost a full two weeks after it happened. Now, of course, one can argue the scene is dangerous, it's toxic, etc. Therefore,

this isn't really a big deal. They kind of had to wait till it was safe. But on the other hand, residents were told it was safe to return on or about February 8th. So why not go in then, right? Why are you waiting an additional week to go visit the site? That's not to say that other officials didn't visit the site, like officials from, you know, the transportation department, teams from the EPA, but no legitimate top White House officials. Senator Joe Manchin, he's a Democrat senator from Virginia, said that it was unacceptable that it took nearly two weeks for a senior administration official to show up. Now,

the top official that did visit the scene on Thursday the 16th was Michael Reagan. His title is EPA administrator, and his visit came one day after the mayor of East Palestine asked for help. Basically, the mayor said, I need help. I'm not ready for this. I wasn't built for this. Please help me. So Michael Reagan comes in and at his press conference, he asked the residents of East Palestine to trust the government, saying that the federal government is committed to getting to the bottom of the incident. Specifically, he said, quote, let me be clear. EPA will exercise our oversight and our enforcement authority under the law to be sure we are getting the results that the community deserves. He asked that the residents trust the

EPA and he said, quote, but for those who can't, I'm asking that they trust the government and that's hard. We know there is a lack of trust, which is why the state and the federal government have pledged to be transparent, end quote. Reagan also told reporters on Thursday that the federal government would hold Norfolk Southern accountable, whatever that means. But Pete Buttigieg, the Secretary of Transportation, has yet to visit the site. President Biden has yet to visit the site. Pete Buttigieg actually told Yahoo Finance on Thursday that, quote, There is clearly more that needs to be done because while this horrible situation has gotten a particularly high amount of attention, there are roughly a thousand cases a year of train derailment, end quote. So it kind of seemed like he was downplaying this whole thing,

but who am I to say? So far, at least six class action lawsuits have been filed against Norfolk Southern. For the most part, what these plaintiffs are alleging is that they've lost income due to evacuations, they've been exposed to toxic cancer-causing chemicals, they no longer feel safe in their homes, etc. According to one of the lawsuits, 1.1 million pounds of vinyl chloride were released into the area. That is more than double the amount of vinyl chloride that all industrial emitters release in the U.S. combined over the course of an entire year. Now, remember, that is a recognized carcinogen by the EPA. While Norfolk Southern said that it was, quote, unable to comment directly on litigation, end quote, it did say in a public update on Thursday that in addition to its ongoing cleanup

work, it was going to distribute more than $1.7 million in financial assistance to the affected families and businesses. It would be creating a $1 million fund for the community available immediately. It would be reimbursing the East Palestine Fire Department $220,000, and it would provide more than 100 air purifiers for residents to use in their home. I don't know about you, but 100 does not seem like many. And I know this is not a big city, but still, 100 does not seem like that many air purifiers for the situation. But speaking of Norfolk Southern's public update, as of February 16th, Norfolk Southern said that it completed nearly 500 in-home air tests and that it has not detected substances related to the incident and does not indicate health risks. It has removed 3,150 cubic yards of contaminated soil

from the incident area and removed 942,000 gallons of contaminants and contaminated liquid from the derailment site. The update also said that they have implemented extensive outdoor air monitoring, and they are actively sampling East Palestine's drinking water. Now look, the thing is, is that Union rail workers have been warning that something like this would happen for years. According to More Perfect Union, when rail workers were on the verge of striking last fall, they expressed major concerns that the railroad's new system of running the lines, called precision scheduled railroading, was all about profit maximization at the expense of worker and public safety. Railroad companies have been cutting costs and crushing their workers,

but railroad companies are not hurting for cash. They've been seeing the highest profits in the history of railroading. Norfolk Southern brought in over $12 billion in revenue last year, and they're using their money to lobby against regulations, saying before this disaster in Ohio, Norfolk Southern lobbyists helped kill a federal rule requiring cars carrying toxic flammable materials to have electronic braking systems, end quote. Now, this rule that they are referring to was passed under the Obama administration, and it basically required trains carrying hazardous flammable materials to have electronic brakes. This rule was partially repealed in 2018 by the Department of Transportation under the Trump administration.

But basically, to kind of break it down, most of the world's trains are equipped with high braking systems that use compressed air to stop each train individually. ECP brakes, on the other hand, which stands for electronically controlled pneumatic brakes, uses electronic signals to simultaneously apply and release brakes throughout the length of the train. So they slow and stop trains up to 70% faster than conventional brakes, and it's the most safe advanced braking system in the world, according to John Risch, who is the national legislative director for Sheet Metal Air Rail and Transportation Workers Union. So this is how the legislative history goes in a nutshell. I'm going to make this quick. In 2015, Obama signed the FAST Act.

This signage came following a number of high-profile train derailments in the United States and Canada. And in part, the FAST Act required installing these ECP brakes on trains that carried highly flammable hazardous material, things like crude oil. But it also included a provision that ordered the Government Accountability Office to review the ECP brake rule and analyze the costs, benefits, and effects of the ECP systems to basically see if this was even necessary or worth it. During this analysis by the GAO, the GAO found that the benefits of the ECP breaks

didn't outweigh the costs of implementing them. So it issued a final rule to remove the ECP break rule from the FAST Act in 2018. So the FAST Act was still in place, but this particular rule regarding the ECP brakes was repealed. A few months after this repeal, the Associated Press released a study that found that the Department of Transportation's analysis as to whether the costs outweighed the benefits or the benefits outweigh the costs actually omitted up to $117 million in estimated future damages from train derailments that could be avoided by using

electronic brakes. As a result of this Associated Press study, the Department of Transportation issued a technical correction in January 2019, but still maintained that the costs exceeded the benefits of the rule and therefore was not worth it. Now, although this particular train that derailed in Ohio was not equipped with ECP brakes, it is unclear whether ECP brakes would have even prevented this disaster. Jennifer Homendy, who is the National Transportation Safety Board chair, said that the ECP brake rule would not have prevented the crash because the train that derailed was a mixed freight train that contained only three class three flammable liquid cars. The ECP braking rule would have only applied to highly hazardous flammable trains, which class three is not. So what I'm gathering she's trying to say

is that it's not that the ECP brakes wouldn't have prevented this derailment. She's just saying that this train wouldn't have been required to have ECP brakes under the FAST Act because the FAST Act only applied to highly flammable liquid cars, and this was not that. Now, if all trains were required to have ECP brakes, regardless of whether, you know, you have Class 3 flammable liquid in the cars or highly flammable liquid in the cars, then maybe this would have been a different story or not a story at all. So for now, you know, residents are back in their homes. Things have seemingly gone back to normal. I'm sure more lawsuits are going to come. We may even see some change in legislation, but maybe not.

And, you know, I think this story just goes to show how much distrust the public really has in the federal government. Even the, the, uh, Michael Reagan, he acknowledged it in the press conference. He said, I know you guys don't trust the government. So it'll be interesting to see what comes of this. I don't know. This could be one of those things where it's a catastrophe and kind of just gets swept under the rug because it's not a big enough of a catastrophe. I don't know. So we will see. But with that, let's move on to part two of this episode. Last episode or the episode before that, I covered a story about Antony Blinken canceling his trip to China after the Chinese balloon was shot down. Blinken still has yet to go to China,

but he did get the opportunity to warn China's foreign minister that the U.S. means business and they need to relax with all their shenanigans. In an ABC interview, Blinken said that he had a very direct, very clear conversation about the Chinese surveillance balloon being sent over our territory in violation of our sovereignty, in violation of international law. He says he told Wang Yi that the action was unacceptable and must never happen again. Blinken also voiced his concern that Beijing may be considering providing military aid to Russia to support its ongoing invasion of Ukraine. In that same ABC interview that I just cited to, Blinken said that, quote,

China has been engaged in providing rhetorical, political, diplomatic support to Russia. But we have information that gives us concern that they are considering providing lethal support to Russia in the war against Ukraine. And it was very important for me to share very clearly with Wang Yi that this would be a serious problem, end quote. Obviously, we can't be sure that China cares what we have to say or whether they will heed the warning. But Blinken did say that China offered no apology for the surveillance balloon incident and that China still maintains that it was a harmless unmanned civilian vehicle. That takes us to the next story, which is a very short story, but wanted to put you guys on notice that today, Monday, February 20th, President Biden will head to Poland to meet

with Poland's president and other key NATO leaders. Republican Senator Lindsey Graham is calling this trip, quote, one of the decisive moments of his presidency, saying he's been good about connecting our national interests to the fight between Russia and Ukraine, and it's good for the world for Russia not to be successful, end quote. He will be in Poland discussing a little bit about Ukraine's defense strategy going forward because it is expected that Russia is launching its much telegraphed offensive. And the White House has told Zelensky to prepare for the offensive now. So the last story today is going to be in regards to the oral arguments that the Supreme Court will hear very shortly on February 28th regarding the student debt relief

plan. So obviously we know that President Biden relatively recently announced this $400 billion student debt relief plan. It was met by many challenges. And on February 28th, the Supreme Court will hear oral arguments in two cases. By the time the justices hear the arguments, student loan payments will have been on hold for three years. So there's two different challenges to the debt relief program. The first case is Biden versus Nebraska. It was filed by six states, all with Republican attorney generals. And their argument is basically that the HEROES Act does not give the Secretary of Education the power to implement this debt relief program and that the plan violated the laws governing federal agencies. Now, this case was previously dismissed by a

United States District Court judge for lack of standing. It was then appealed to the United States Court of Appeals, where the dismissal was reversed, and now it is in front of the Supreme Court. Standing is basically one's legal right to sue. So before the central question in a case can be argued, a judge, or in this case, the justices, have to determine if the plaintiff even has a legal right to be there, to be arguing this case. Typically, in federal court, the plaintiff will have standing to sue if the plaintiff would suffer some sort of harm from the defendant's conduct. Now, if a case has multiple plaintiffs, like in this case, just one

plaintiff has to establish standing for the case to proceed. Four of the six states in this case, just one plaintiff has to establish standing for the case to proceed. Four of the six states in this lawsuit claim that their standing arises because the debt relief program would reduce their tax revenues. So those states are Nebraska, Iowa, Kansas, and South Carolina. And what they say is that they calculate taxable income based on taxpayers' federal adjusted gross income, AGI. Although federal AGI normally includes discharged student loans, there's some federal law that excludes these states until 2026, which means that any loans discharged now will not count towards AGI later. So these states are saying, look, we're going to be negatively impacted by this if this debt relief program goes forward. Therefore, we have standing to sue President Biden's administration. The Biden administration's response to this argument is that any injury that the states are going to suffer from their inability to tax the discharges is self-inflicted, and therefore they don't have a right to sue. It was the state's decision to rely on the federal tax code's definition of gross income, and that's their problem. Now, of course, if the court does determine that standing exists, then they will move on to the question of legality, which

essentially boils down to whether the HEROES Act, which was implemented following 9-11, gives the Department of Education the ability to cancel student debt. So I'll be covering this more once a decision is actually made and we'll kind of go over what the arguments were, what the justices rationale was for whatever decision they come to. But I just wanted to give you an idea of what will be presented to the court, you know, in the next couple of weeks. Now, the second case is department of education versus Brown. This case was filed in Texas by two student loan borrowers. Their names are Myra Brown and Alexander Taylor. Brown isn't eligible for relief because her loans are not federal loans.

They're held by commercial lenders. So she doesn't, she's not entitled to this debt cancellation. Taylor is eligible for $10,000 in relief, but he can't get the full $20,000 because he didn't receive a Pell Grant. So that's the basis of their argument. Now, it's interesting because the Biden administration argues that even if Brown and Taylor win their case, they actually won't receive any debt relief at all because this debt relief plan won't go forward. So it's almost like they're doing themselves a disservice, or at least Taylor is because he's already getting $10,000 in relief. He's just filing the suit because he's not getting the full $20,000. So it doesn't really make too much sense. According to SCOTUS blog, what they're

saying is one issue that will almost certainly draw the justices attention is this recent announcement that as of May 11th, the Biden administration will no longer classify COVID-19 as a national emergency. So according to the blog, even before the announcement, states had already questioned the Biden administration's reliance on the pandemic to justify this debt relief program. They were calling it a pretext, suggesting that the real purpose of the program is really just to fulfill Biden's campaign promises. And now that COVID-19 isn't going to be a national emergency anymore, it kind of bolsters the state's arguments.

The White House says that that's not the case. Even without the national emergency, the Department of Education still has the power to cancel student loan debt. So they're standing by their argument. Of course, we'll see what happens. Again, oral arguments are on the 28th of this month. We likely will not see a decision until the end of the term in June.

So you know at that time, I will give you guys the full lowdown on the case. That is today's episode. I hope you enjoyed it. Please don't forget to leave me that review. I will be back on Monday with another episode. And then don't forget that on me that review i will be back on monday with another episode and then don't forget that on the 6th of march i'll be dropping an episode on the history of the death penalty so stay tuned for that and i will talk to you soon