Environmental Professionals Radio (EPR)

Waters of the US, GHG Emissions, and the Supreme Court with Fred Wagner

April 08, 2022 Fred Wagner Episode 61
Environmental Professionals Radio (EPR)
Waters of the US, GHG Emissions, and the Supreme Court with Fred Wagner
Show Notes Transcript Chapter Markers

Welcome back to Environmental Professionals Radio, Connecting the Environmental Professionals Community Through Conversation, with your hosts Laura Thorne and Nic Frederick! 

On today’s episode, we talk with Fred Wager, partner with Venable, LLP about Waters of the US, GHG Emissions, and the Supreme Court.   Read his full bio below.

Special thanks to our sponsor for this episode VENABLE, LLP!   Check them out at https://www.venable.com/

Help us continue to create great content! If you’d like to sponsor a future episode hit the support podcast button or visit www.environmentalprofessionalsradio.com/sponsor-form 

Showtimes: 

2:19  Nic & Laura's talk about Illustrious Theater Careers
7:03  Interview with Fred Wagner Starts
12:55  Supreme Court
18:22  Waters of the U.S.
29:17  GHG Emissions

Please be sure to ✔️subscribe, ⭐rate and ✍review. 

This podcast is produced by the National Association of Environmental Professions (NAEP). Check out all the NAEP has to offer at NAEP.org.

Connect with Fred Wagner at linkedin.com/in/fred-wagner-59043019

Guest Bio:

Fred Wagner focuses his practice on environmental and natural resources issues associated with major infrastructure, mining and energy project development. Fred helps clients manage and then defend in court environmental reviews performed under the National Environmental Policy Act (NEPA) or equivalent state statutes. He works with public agencies and private developers to secure permits and approvals from federal and state regulators under Section 404 of the Clean Water Act (CWA), the Endangered Species Act (ESA), and the National Historic Preservation Act (NHPA). Fred is familiar with the full range of issues surrounding USDOT surface transportation programs, including grant management, procurement, suspension and debarment, and safety regulations. During his career, Fred has handled a wide variety of environmental litigation in federal trial and appellate courts across the country, from citizen suits, to government enforcement actions, to Administration Procedure Act (APA) challenges.

Fred was appointed Chief Counsel of the U.S. Federal Highway Administration (FHWA) during the Obama administration. He managed all legal matters involving the $40 billion Federal-Aid Highway program, including environmental and natural resources issues for highway and multimodal transportation projects. Among other high-profile projects, he oversaw the agency’s defense of the following:  New York's Tappan Zee Bridge, San Francisco's Presidio Parkway, Chicago's Elgin-O'Hare Expressway, Kentucky and Indiana's Ohio River Bridges, North Carolina's Bonner Bridge, Alabama's Birmingham Northern Beltline, Wisconsin's Zoo Interchange, and Washington's State Road 520 Bridge. He represented the FHWA on government-wide Transportation Rapid Response Team, a multi-agency task force focused on improving project delivery and environmental review reforms.

Fred began his career as a trial attorney in the Environment Division of the U.S. Department of Justice. He also served as a Special Assistant U.S. Attorney in the Misdemeanor Trial Section of the U.S. Attorney's Office for the District of Columbia. Prior to joining Venable, he spent more than 20 years in private practice at a national law firm focusing on environmental and natural resources issues.

Music Credits

Intro: G

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[Intro]

Nic 
Hello, and welcome to EPR, your favorite environmental enthusiast Nic and Laura. On today's episode, Laura and I discuss our illustrious theater careers. We talk to Fred Wagner again, it's great to have him back on the show and this time we're focusing on Waters of the United States, greenhouse gases and the Supreme Court's role in all of these things. So it's really really interesting, as always, a really interesting episode really, really engaging conversation. Super happy to have him back. And finally, lasers can get trapped in water. This can happen when the light travels through water and gets slowed by the heavier particles in the water effectively trapping the laser beam in water. So even if you decrease the flow of water, the beam will remain in the jet until it is turned completely off. That seems like mad science, and I don't believe it but I also read it several different places. So it seems to be true.

Laura
But what happens like the laser continues when it's like freed?

Nic
It's just like stuck in the water. It's like the light is just there and doesn't go away until you turn off the water.

Laura
Okay, well, that one is a mind blower, so.

Nic
Yeah, try it at home see if it works. Hit that music

[Shout out & NAEP Event News]

Laura 
Today's episode is sponsored by Venable LLP. Venable is one of the nation's leading law firms. Venable's management reflects a commitment to diversity and inclusion through a broad category of hiring, training and educational activities. The firm's environmental practice group works with clients across the country on major infrastructure development, including NEPA compliance and resource agency permitting. Venable encourages volunteer activities and professional environmental associations as reflected by Fred's membership in the NAEP board of directors.

Don't forget the NAEP conference is coming up may 16 to the 19th. at the Westin Fort Lauderdale. Women in STEM will be hosting a networking hour Wednesday the 18th from six to seven, just after our live EPR session and before Dine Around town, there will be networking games and mentoring opportunities. This event is for women and we encourage BIPOC and members of the LGBTQ community and students from local universities to attend as well check it out at www.naep.org Let's get to our segment.

[Nic & Laura's Segment- Illustrious Theater Careers]
Nic 
And have you ever been in a play by any chance?

Laura 
Have I been in a play? Don't ask me why I have to think about this but I guess the answer is no.

Nic  
She's really like I did? Have I? And  I don't mean like

Laura 
I'm thinking back to like elementary school. Did I ever play a flower. like No, yeah, no. No, I didn't.

Nic 
I mean like Yeah, so like, like an actual production of a show. That's what I mean. So like,

Laura 
No, I went straight from never having done anything to trying to be the host of a TV show. Just go for the gold.

Nic 
That's too funny, and so like my high school growing up was like one of the things they were known for was drama. Like our claim to fame was Connie Britton went to our high school and then,

Laura
Who?

Nic
She's Friday Night Lights, the wife on Friday Night Live, she's American Horror Story, season one or whatever. Yeah. And, you know, there's this big mural of her, in our mural. It's like a little display case of her accomplishments in our high school. So we had a really robust Theatre department we also a famously like my brother was with the blonde woman in two Broke Girls. That's what I'm doing. Yeah, and it was terrible TV show, but she was also in my brother's grade, and neither one of us well, he remembers her but like, I have no recollection of her.

Laura

You don't like Two Broke Girls?

Nic
No, no.

Laura 
It's ok. I have never seen it.

Nic 
Yeah, it was a little too on the nose for me. So they have the theater program, and I just never ever thought about doing it at all. But now senior year they do this big, spectacular.  Where everybody does a play, right. Like, they're just like, they're like they're directing like some of the students are directing. And so I got to be on one. And it was like, the first time I got an entire room full of people to laugh, you know, and it was just awesome. And that

Laura
Is that when a comedian was born?

Nic
You would have thought so but like, I genuinely did a thing where I was like, Well, I love this. This was super fun, the best I've felt in a long time. So I'm just going to ignore it and go to school and try to be an engineer, because that's what people told me that I should do. And I was like, oh, yeah, no, I don't enjoy math. So I'll be a psychologist. And then I was like, oh, I need to go get more degrees. So I'll be a biologist. And then, and then I was like, oh, yeah, I remember that one play I was in. It was super fun. I should do another one. And I did and it was great. And then then a comedy comedian was born. So yeah, the path is never straight.

Laura 
That's where it all starts. Half of my friends were in theater in high school and stuff, but I didn't consider myself a drama person.

Nic 
Oh, yeah.

Laura
 
I mean, I don't like costume parties. I'm not that person who like, wants to try to be someone else.

Nic 
That does not surprise me at all. By the way.

Laura 
I know, right. It's just a little boring. Oh, my God.

Nic  
You're just who you are. Yeah, I'm the opposite. I'm like I want to be everybody but myself. That's, what are we doing.

Laura 
I just gotta be me [singing].

Nic 
Yeah, yeah. But I'll throw on an accent and I'll do whatever, you know. Absolutely.

Laura 
Well, I'm taking this improv class. So I'm excited about doing that.

Nic
That's right.

Laura
If in what it sparks in me at all.

Nic 

So has it started, yet. When does it start?

Laura 
Starting? Very soon. So we'll see how it goes.

Nic 
Oh, man, I'm so excited for you to 'yes, and' your way through this, I just. Yeah, stick with it, by the way, but I think yeah, because like don't get mad that it's boring or lame or something. I don't know. I worry. Like every time somebody

Laura  
I mean the guy, Tanner who owns a Wunderbar, The queer bar here in Syracuse. He's awesome he has He's been teaching improv for 20 years. And he's just, he's amazing. So I'm pretty sure it's gonna be a lot of fun.

Nic 
Yeah, I mean, yeah, as long as you're going with that mindset, you're gonna be fine. Yeah, it's gonna be great. And there'll be people who are terrible at it. And that's the best part of an improv class.

Laura 
It will probably be. But that's ok, that's why I'm here. I'm here to learn.

Nic 
Too funny. Yeah. I love that though. It's gonna be great. I mean, you did like a poetry reading thing or something the other day. So your theater moments are coming.

Laura 

Yeah, that was a storytelling thing. I'm trying to be better for the podcast, and to also be better for the TV show I'm promoting. It's all training.

Nic 
Yeah. And isn't that funny how you can do lots of different things to train for lots of different things. Isn't that neat?

Laura 
It is but you know, one thing I'm never going to train to be is an attorney. So let's get to Fred's interview because the amount of knowledge that man has is mind boggling.

Nic  
It really is. Yeah. Alright, sounds good. Let's do it.

[Interview with Fred Wagner Starts]

Nic
Hello, and welcome back to EPR. Today, we have our rockstar lawyer stopping back by it's so great to see you again, Fred. How you doing?

Fred Wagner 
It's great to be here. It's great to be here when it's spring.

Nic 

Absolutely. We keep joking that nothing is happening in the environmental policy realm because so much of it is you know, and we're gonna dive into as much as we can today. I know we only have a certain amount of time, but we always love starting with some fun because you're such a good storyteller. So I got to know is there is there ever a time where you get to use your experience as a lawyer like outside of your practice?

Fred Wagner 
Yeah, I do. One most recently with one of the most enjoyable so my wife is the director of her high school drama club. So they put on a musical in the fall, and they put on the drama or comedy in the spring. And this spring, they're putting  on a courtroom drama. It's one of those things where the audience tends to be the jury and then they vote on guilty or not guilty. And then the cast has to scurry around and they change the ending of the play depending on how the audience votes. So so it's gonna be a lot of fun. And so she asked me to come and speak to the cast at the beginning of the production, to sort of help them through this whole production and how to think about their roles, their characters, and really most importantly, to compare what they see on TV and the movies. And in this dramatization, of this, you know, a murder trial on stage, and it was great the kids as so many great questions about what the defense lawyer and the prosecutor, what if they really don't like each other. You know, stuff like now, yeah. Can I show that or the judge would say, You know what, the judge would just get so fed up, you know, with the lawyers that you know, he or she shows their emotion, and they were right on point. It's so great to be able to give my experience in the courtroom, my experience dealing with opposing counsel, whether I like them or don't like them. Ask Great Questions about coaching witnesses. Do you know want the witness wants to say? Are you telling them exactly how to say it? Like, cry here. And it was so topical because we pulled up the video if you recall in the winter that Kyle Rittenhouse's trial from Wisconsin and you know, pretty noteworthy portion of the trial when he broke down in tears so he could answer questions in that and stop the proceeding. Get his composure and all that. Well, I played that video to the kids. And I said hey, look you know, the lawyer just asked a general question about what happened next. Look what happened. You know, what do you think? Every kid and just about 30-40 kids who are watching said, he's just making that up. Boy, is that an act? I can't believe he's faking it. And I said, so how do you how do you know that? You just see that it was fascinating just to get their reactions to it and to be able to let them know that yes, in fact, emotion and real life and come into play in the courtroom. It's not just the facts, and it's boring, sometimes it is. But you know, especially when things really matter. You know, there's a lot of emotion to it. So I had a great opportunity to be kind of a assistant director to my wife for a day. Helping the kids figure out how ours really work in the real world. How much is drama, how much is fake, and whether what they see on TV and movies is real or not. So that was great fun, and I'm looking forward to seeing the production to see how they do.

Nic 
That's so cool. I definitely don't need to know the answer to all those questions that they asked. That's so awesome. I'm glad you got to do that. That is really fun.

Laura 

It is awesome. But it's also it's a really fun way to do like parents day so you have kids are they high school age?  Do this drama stuff too?

Fred Wagner 
My daughter are following in our footsteps. So I think we've we've talked about this but I actually met my wife doing theater. Yeah, when I was directing the show and she was in the show it's scandalous, I know. And then she ended up directing the shows after I graduated college. And you know we continue to do that now she's doing the drama program in high school. So my daughter is following in our footsteps. I mean, almost literally, you know, in our footsteps. She went to the same colleges, my wife and me. She joined the same theater troupe that my wife and I were a part of,

Laura
Oh, wow.

Fred Wagner
She acted in, like four different musicals while she was there, which is exactly what we did. So that was great fun to go back and see her on stage and she certainly let all her friends know that her mom and dad met during the show. So look to your left look to your right you don't know what might happen.

Nic 
It's fantastic.

Fred Wagner  
Yeah, it's a great story. So yeah, a little bit all in the family. My son did not get into theater although he has an excellent singing voice, it  just wasn't his thing. But yeah, so that's something that's really important lesson. We're still pretty active.

Laura 
That's a great that's a lot of fun. I was trying to throw you a bone there. Let your kids still be in high school. Um.

Fred Wagner
Well. Not quite. But that's alright.

Nic 
Yeah. yeah.

[Supreme Court]

Laura 
All right. Well, that's awesome. I love learning more stuff about you and your family and things. But let's get moving on the stuff people want to hear about. We're going to talk a lot about Supreme Court decisions today. And I have this feeling that people have perceptions about how the Supreme Court works but may not know exactly how it does and I may or may not fall into that category. How was it similar in different than a general courtroom? So you're just talking about telling these kids you know, maybe they ask you, how's this is this Supreme Court or is this county court? Are there any common things? Are there myths about either one, and uh?

Fred Wagner 
Well, I mean, certainly the most important thing to know about it is that it really is the top of the pyramid of the legal system. And so things don't get to the Supreme Court very, very often. In fact, you have to petition to get a case before the Supreme Court, you don't automatically get to go on the Supreme Court just because you lose all the way up and above the supreme court to review this for me the supreme court has discretion on whether it can take those cases. Those are what's called writs of certiorari, the court gets to decide whether pieces worthy so as a result in the area of environmental law, for example, you know, when a big case hits the supreme court docket, it's extremely noteworthy because it doesn't happen every term and they don't happen every other term. Because the court takes so few cases on every subject matter, not just environmental law. So the thing is that the Supreme Court is that it's a court of its own discretion on the kind of cases it chooses to take and when it does, it's a red letter day. It's a really big deal. And, and the thing that's that's happened in the most recent term of the Supreme Court is, you know, after it's relatively quiet, yeah, there's been some cases that are noteworthy over the last few years. They have just a pretty relative quiet, they jumped into the environmental law pool, big time, they made a huge splash by taking, you know, major cases under both the Clean Water Act and under the Clean Air Act, and their cases that could potentially have a tremendous impact for years in years to come. And it isn't very often that terms like that. Supreme Court terms like that, come up. And now we've got one, not just one, but two really tremendously important cases at the same time.

Laura 
Okay, but how often do they convene? Do they are they seeing cases every day or once a month?

Fred Wagner 
Laura, I don't know if you know, the play, I think there was a play or a movie that first Monday in October, that's when they were in the session. They start their session, then they go through the spring, and they rush to get all their opinions out before the end of June and then take the summer off. So that session if you have to over in June, to hear arguments you have throughout the session, and they release their opinions as they happen, but they finish all their opinions for that session by the end of June every year. So they're starting around and burning the midnight oil so that they're all done and we can finish down. Now they meet once a week to review these petitions Writs of Certiorari, like I said, not to determine whether you're going to take those cases vote yes or no. And every Monday afternoon a long list of cases come out that reveal the disposition of the court and that's when you learn that your case has been taken or whether your case has been denied and it's not going to be heard by the Supreme Court. And they do that frequently. And that every time there's arguments they meet immediately after the arguments are over, basically just sort of take a straw vote on kind of where people are standing on it and just go over any questions they have. And then it's up to the Chief Justice of the Supreme Court, in this case, John Roberts, to based on how the votes coming down to a fine generate the opinion, which is the biggest power and authority of the Chief Justice of the Supreme Court. Right because he or she knows the personalities on the court. They match the case with an individual's feelings and preferences, things that they've written about before things that they're particularly passionate about before. So when he assigns the majority opinion, that's a tremendous decision influences how the opinion gets written. Now, other justices can concur. Obviously, there can be dissents and things like that. But if the vote is 6-3, for example, who writes the opinion for the six is up to the teacher. He makes that assignment to the others. And sometimes depending on the case, he may assign himself because it's something that he feels particularly strong about. So yeah, that's how it works. It's 1000s and 1000s and 1000s of petitions for cases every year and the only grant and it's getting smaller and smaller, the number is getting smaller and smaller. The number of cases the grants Writs of Certiorari for. 40, 50, 60. So ever narrowing docket before the Supreme Court.

Laura 
Okay, awesome. Well, thanks for sharing all that. I have more questions rolling around my brain but I know that we need to get all that Nic take over with that.

[Waters of the U.S. (WOTUS)]

Nic 

Yeah, just means we'll have to have you back and ask more. Because, yeah, I do too. That was really great. Yeah. So you say we have two big cases to get to and I want to talk I'm gonna start with Waters of the US. It's one of those ones that I feel like we've been trying to figure out what on earth Waters of the US even is for the longest time, but it has this really complicated history. So can you kind of tell us a little bit about that history of what is what is the United States and then walk us through what's going on in the court right now?

Fred Wagner 
Yeah, well, certainly walking through the history is kind of like a 10 part miniseries that appear on Lifetime streaming, streaming right now. The history of waters. But the bottom line is that I graduated law school in 1987. And literally from the moment I graduated to now, the litigation over definitions of the Waters of the US has been going on, my career has always been coextensive in some way.  And the matter has gone up and back to the Supreme Court for time. And the agencies the agriculture EPA been trying unsuccessfully to try to come up with a definition regulations that satisfied everybody that's impossible, and it keeps on coming back and back and back. The most recent Supreme Court decision on the topic was Rapanos, or Rapanos, depending on what Mr. And Mrs. Rapanos say.

There it was the infamous four to four to one ruling. They couldn't find a majority there was four Justices,  four Justices and another one. In general and seen that the opinion written by Justice Anthony Kennedy recently retired  the day and the substantial Nexus test for wetlands. But there was a competing decision written by Antonin Scalia and the other four saying you know, this is crazy, you know, the Washington States. The FBI has navigable waters by gum that's what it should be navigable waters and everything else you're trying to do just goes too far and way beyond. That was really unhelpful and I think the one justice recall Justice Roberts also written opinion there where he basically excoriated the agency to do your job. We got to come up with something we've been taking so long, and he was extremely frustrated. Well, if that's been the ruling for and it's been out there, and people have been unhappy. The Obama administration tried coming back you know, with a rule the Trump administration rescinded it, came back over with its own rule, and the Biden administration rescinded it. And so what happened most recently is that another family, the Sacketts, had been involved in WOTUS litigation for a long time. They wanted to improve their property. The Army Corps said they needed a permit. They disagree. They went all the way up to the Supreme Court once already. They've been to the Supreme Court on the question, there wasn't the definition of WOTUS, but the Nic the issue there was whether you could challenge the jurisdictional determination. In other words, they got a JD they said this is words, and they went to challenge it. The [21:22 unintelligible] said no, not final yet. We have to deny your permit before you go to court. And the Sacketts challenge that went all the way up and the Supreme Court said no, we challenge that they make it a jurisdictional determination and then they're gonna say no, you have to wait. That's silly. So yeah, you litigate the JD. So they won. They went to the Supreme Court and they to go back after the trial court. They litigate that challenge whether you're the jurisdictional determination was valid, and they lose. The Courts all the way up to the Ninth Circuit said, Hey, no, it is the Court didn't vote right. Did it all right. Well, they weren't happy with that. And so the appeal that to the Supreme Court Now remember what I just said, Laura, I'm testing you. How often does the court cases?

Laura 
Um, once?

Fred Wagner 
In a blue moon. Good, you passed. Very, very rarely do they take these cases? And the Sacketts had just been there. Remember? Nobody thought that the Supreme Court was gonna grant cert on this follow up case from the Sacketts. They just sort of said well, that we told you, you could challenge it. You did, you lost. You know, you got to deal with it. But no, they took the case. And not only did they take the case, but they took the case specifically with the question of what is the Waters of the United States.

Nic 
My goodness.

Fred Wagner 
Basically inviting revisiting the Rapanos decision the four to four to one decision. So what's different what's changed since Rapanos to now? I won't quiz you because you this one Laura, I'll just tell you.

Laura 

I'm gonna say a lot.

Fred Wagner 

A lot is also good, but to be more specific. Now you have a 6-3 Supreme Court. You have a totally new make up of the Supreme Court, leaning more conservative they ostensibly ostensibly leaning maybe towards the Antonin Scalia vision of WOTUS the back four about a very narrow interpretation of WOTUS is dealing just with navigable waters, although it's not clear whether that is true or not. But there's definitely apparently by the fact that they took the case and appetite to try to weigh in more clearly, more definitively. Because after 30 years, the agencies still haven't come up with something that seems to satisfy enough of the people including courts. And in the interim, as you know, there have been any number of challenges the Obama rules, the Trump rule, there's been injunctions, they've been injunctions that are maybe the nationwide or the injunctions just in certain parts of the country, there have been stays, there have been challenges to the injunctions, it's just a mess. So on the plus side this is an opportunity to perhaps clear some of this stuff up. What's weird, of course, is that the Biden administration is still in the process of writing the rule. Yeah. So what's going to come first. The briefs for this case are due in April, May. There will be arguments in the fall, and the decision likely will be in the winter or spring. But it could be one of the last decisions remember end of June. It could be all the way to the June of 2023. We don't know. So many Republicans in Congress has said to the Army Corps and EPA Stop, stop writing the rules. Don't be silly. We're gonna hear from the Supreme Court, you're gonna have to redo it anyhow. There's not been we haven't heard from the agencies whether they're gonna agree to that or not. But we know there are these parallel tracks the Supreme Court and the agencies trying to move along, but my sense is that the only reason the Supreme Court took the case was because they thought they needed to offer some clarity. And whether folks would be pleased or displeased with that clarity now remains to be seen. But that is a strong supposition and amongst the people who've litigated these, these issues before, whether it's in a trial court or whether it's on appeal that they're gonna come out with a more definitive ruling, more likely leaning more towards the Scalia tasks, the more narrow interpretation of a waters the United States than the broader substantial Nexus system.

Nic 
Interesting, man, so

Laura
It would not be shocking.

Nic
Yeah, no, I it would not does spark a question for me. So I think one of the hardest things for people you know, because what is a water is the United States seems like it should be pretty easy, right? Like if you say it's navigable waters and that's it, but then you think about, well, everything that comes into a navigable waterway, and who's responsible for putting what into the river and that's where it starts getting gray and complicated and crazy. So if that is the decision, say there is a decision that they make, and it's only navigable waterways, is that a final decision? Or is there a time that we're gonna get to? Maybe not now or even in the next, you know, decade or so where they can revisit something they've already answered? And they say, No, we already told you what this is. Do they ever take those back up and say, You know what, maybe we didn't do it. Right.

Fred Wagner 
Well, I'm not getting political here, but but the answer clearly is yes. Look what they're doing in these abortion case. Everybody thought that was done. Decided. And now there's a feeling that whatever reason, whether it's through politics, or whether there's, you know, some basis for saying is new information or change circumstances, the courtroom visiting its final ruling, you know, so yeah, they could do that. I mean, the more likely scenario, let's say that, they come up with something very restrictive and very narrow. And the feeling is that, you know, I'm just making this up, but I don't think this will happen, but you know, it restricts regulation. Well, what is a wetland? If you can't take a boat on it, it's not being regulated. Again, I don't think it's gonna be that extreme. But if they go the extra mile, then guess what the balls directly in Congress's court again, if there becomes a majority and a president that will sign a bill, they can go back and say, you know, maybe we messed up. Maybe we originally when we wrote this we did provide clarity that was necessary, went up to the court several times the court in 2023, issued this ruling that said this, but you know what, we feel bad about that, too. Now, we're going to legislate in a certain way to answer some of those questions. I mean, that in theory could happen. And once the court rules it's rare that the Supreme Court would revisit that in a year or two or five, tends to have to marinate there for quite a while. I mean, obviously, Roe, you're talking about, you know, 50 years now, but even there, there's a strong debate whether the courts adherence to stare decisis it's called its own precedent is whether they're really sort of punting on that principle by just changing it because as I said, no government not making monetary but just because of political reasons and their own personal views. They want to reverse them. They didn't agree with Roe and now they're six instead of four and they can and so they're gonna, how often does that happen? Thankfully, not very often, because the principle of precedent of stare decisis is crucial to the viability of the Supreme Court. So if they narrow it down, it'll be it Nic unless and until Congress says, Oops, no, that was our interpretation, but we didn't mean that we need more protection. So we're gonna do this now instead. So in 2024, Congress passes the Wetlands Protection Act of 2024. Right. All right. That could happen, but the court issued a ruling yesterday. It's really for quite a while now.

[Green House Gas Emissions (GHGs)]

Laura 
Thank you for that explanation. If I didn't have questions before. Well, I have questions now. But speaking of flip flopping, so the Biden administration is also reinstated the social cost of carbon to Obama era levels and then that was immediately met with injunction and then a stay and then removal of that stay. So this kind of like flip flopping back and forth like is this common? versus getting more prevalent? Prolift front, oh my god. This is why I'm not an Attorney.

Nic
 
Prevalent. Prevalent.

Laura
Prevalent. Thank you.

Fred Wagner 
Yeah, we'll edit that one. Absolutely prevalent, yeah, no, it's unfortunately, becoming more normal than that. That's the bottom line, even as a practicing lawyer so you get the bugs out of you know, important vital environmental cases we just discussed the Supreme Court and we'll talk about the greenhouse gas case in a moment. But what's happening more and more, unfortunately, is that something is decided by an agency or some policies and guidance is immediately challenged, and not just challenged by a stakeholder. Somebody's been subjected to a permit requirement, right? For an association that has comments on a rule or something like that. But like the opposing political party Governors get together and they challenge it because they disagree with and they want to put a stop to action in a particular area. That's what happened with the social cost of carbon and it wasn't even a rule. It wasn't even guidance. It was just like, some hint for the agency say here. Here's here's a way you can try to deal with this, you know, when we're trying to grapple with greenhouse gas emissions, and what does this mean for federal policy, groups of Republican governors sued in one court and lost another group or subset of the same group sued in another court, and they got a judge in Louisiana to agree with that and put this injunction in place. And literally just two days ago, the Fifth Circuit, overrule that injunction. And lifted this stay on the application social proof number, so there was a two month period of, you know, complete total chaos about what they could do and not do. And if they're not applying the social cost of carbon, but they're still doing some greenhouse gas analysis in general. Is that the same thing and should they be stopped from doing that? I mean, it was a mess. And the sad reality is that's happening more and more. Yeah, it's hardly a day goes by where you know, any agency can feel like it's doing something. It's making a decision of life and guide, that it doesn't go down the route of litigation. You know, from members of Congress, to governors and so forth, and creates this constant stream of decisions and potential injunctions and back and forth and uncertainty. It's kind of like WOTUS has now infected itself across the entire spectrum of environmental law. And that ain't good. You know, and the old saying, you only deal with clients is a client can take bad news in terms of, you know, how regulation works, as long as they know what the news is. They can deal with something if they have some certainty. Now you are going to have to modify your battery to deal with this pollution issue. Is that okay? At least we know about it. We can plan our investments, we can plan the modifications to our battery, we can do it because at least we know what they hate it as well. You might have to or you might not have to, because this is the rule now, but it's being challenged tomorrow, and there's an injunction on Thursday, but it's listen on a Monday and don't put the order for the equipment in now because you may take it back and of course the equipment is millions of dollars. They hate that. And what we're seeing, sadly, is happening more than more and more anything with that's remotely controversial. Whether it's greenhouse gas, wether its Waters of the United States, whether it's regulation of PFAS, you name it anything that's hot and creates an issue ends up in this cycle. And as a lawyer or counseling clients, it's extremely difficult. And for our environmental professional friends listening, it's equally as difficult because you're responsible for figuring out how to fill in the blank, write the permit application do the audit of the facility, right? The analysis of impacts doing jurisdictional determination, the unknowing habitat or sage grouse is protected or not protected, unless you look into the court digests and understand what the opinions are, you don't know how to do your job. And so, there was always an element of that of course, the case books are replete with environmental cases for forever, but not like this. Not like this, a decision in one circuit but not in the other circuit governors going here but not there. And with some authority, it's um it's not like how I remember growing up in the law, not at all.

Laura 
Well and then for people working on the permitting side they have to deal with people seeking permits and customers who think they know better or think they can wait and change the rule or think you don't know what you're doing because you're in the middle of I don't know what the rules are are doing at the moment and then I'll I've seen them pull their weight around and try to you know, get their way just by saying well, it's going to change or you don't know what you're doing and that is an additional frustration. So appreciate you Fred sharing this info.

Fred Wagner 
What it means to me, I think for both the legal perspective, working with folks in the environment sphere as far as the technical folks, you know, working with clients, the common theme in light of all this is how do we assess risk? How do we assess risk for our clients? You know, if you do it this way, we think that's protective. And will be defensible. But the client comes back says yeah, but if we do it this way, it's going to be so much more expensive. It's going to be very inconvenient for us, right? So we'd rather do it that way. Your response is that's fine. I'm not saying can't do it that way. Because again, as you pointed out, it's either debatable or we're not quite sure how the courts are going to come out. But then we're all in the position lawyers and technical professionals. alike, to help our clients assess the risk, you know, will this pass muster? Will we get approval from the agency? If we get approval from the agency, would it survive, you know, a court challenge and so on and so forth. And in that way, I think that's kind of a common bond that this latest trends that I just described, that's the common bond that I have with you guys, besides the fact that we love our job. You know, but no, but that's the common bond. We just don't do our jobs in  our own disciplines. We are now professional risk assessors to help our clients know what to do.

Laura  
Absolutely. So you mentioned cost of carbon in there a few minutes ago. What is that? Why does it matter where you see that going?

Fred Wagner 

Well, I mean, the important thing for the social cost of carbon is the measurement and assessment of greenhouse gas effects generally. So when I think about it, there's the more narrow factors like the emissions themselves. If you do this can calculate the emissions. And there's any number of tools to help you do that and that's fine. But social cost carbon gets to which is a little bit more than that, which is okay, in light of those. How do we calculate the impacts of that short term longer term? How do we deal with the cost both in terms of the global environment but also the thing that we're doing? So for example, resilience, how are we working resilience to the infrastructure that we're building, so forth? So to me, measuring emissions was one thing but social costs soft cost of carbon goes to, how do we try to quantify even if it's quantitatively, or even qualitatively, what does that mean? If we have X amount of admission, over y period of time? What does that mean in terms of the overall impact on the environment? And that is anything but simple. It's certainly in many ways subjective, depending on who's doing the analysis. But what the government is struggling with and any number of contexts, NEPA being one of them. If we're trying to describe what this is, is it truly helpful to say that we expect X number of tons of carbon from such and such a project? Or is it more helpful to say if we are to see X number of tons of carbon from this project? What does that mean to us? And that's really what it gets to and one way or the other, the federal government's gonna have to grapple with whether they apply the social cost of carbon metric or when they apply some other kind of metric to describe what that really means. That's what we're seeing. And, you know, court after court is coming down with the rulings that say no, no greenhouse gases and impact just like any other impact, and you have to figure out a way how to assess it. And I think the CEQ guidance that we're expecting on how to incorporate GHG analysis into NEPA documents will be crucial. Now how the government now since the injunction's lifted, they can, again give guidance on applying the social cost of carbon all this will contribute to that analysis, how different agencies build in the assessment of those impacts to their actions. And that's what it's all about.

Laura 
Okay, so is this coming up to the Supreme Court level, they're venturing into greenhouse gas,

Fred Wagner 

The social cost of carbon probably won't, because I think the ruling that was just reversed, it was so off the wall. I mean, many, many people felt that he was susceptible to being reversed even in the Fifth Circuit, which is one of the more conservative circuits in the country, that it's unlikely the Supreme Court would venture into that because, again, the Fifth Circuit votes for it that it's probably not going to get to the Supreme Court. What is at the Supreme Court is that EPA is and the government's ability to regulate greenhouse gases generally. And that's in the case the challenge to the Clean Power Plan that was just heard. And it's argued at the end of February, in or at the end of February, and the ruling may come out relatively soon, maybe by the spring, on that topic. And there the whole question is whether EPA or any agency for that matter has the authority under the Clean Air Act to regulate greenhouse gases under what's called the Major Questions Doctrine? Okay, the Major Questions Doctrine. Now you may say, hey, wait a minute I thought the Supreme Court dealt with this and that's right. [40:12 unintelligible] broader. And so the greenhouse gases the determination, I've noticed that since we're reputed was fine. And you will be right.

Laura 

That's exactly what I was thinking.

Fred Wagner
 
But, again, we're in a 6-3I court and part of the six majority are conservative justices who have been itching to find a way to rein in the discretion authority, not just the EPA, but of all federal agencies, under what's called the Chevron doctrine for years and years the case the Chevron doctrine is one that governs how a court would use regulatory actions by an agency. And in general, there's broad discretion and the agencies should be upheld, unless they abuse that discretion. Something bad. Yeah, that's what the chevron doctrine and a lot of conservative judges around the country not just on the Supreme Court are taking issue with that it was almost like there was so few instances they argued, where agency went beyond its discretion that the doctrine was swallowing the whole There was never a case where you have discretion and so this question of the major, the major questions doctrine, so it came about as a more conservative jurisprudence principle, to say, hey, look, is there something that's so fundamental, so huge in terms of its economic impact, and regulatory impact, then unless Congress was bloody clear, we cannot assume that an agency has the authority to take action. That's what the major question doctrine is all about. A lot of people are critical of it, for a lot of reasons. But that was in essence the bottom line for this challenge, and it didn't go through whether we have gas was a pollutant. It went to the basic question, the Clean Air Act didn't mention this thing called greenhouse gases. It did not. And to the extent the agency wants to write regulate them in this case in the context of power plant, unless there's something said, we may agree, or we may disagree, that this is something that we did, you know, regulated as a matter of public health and safety. But it's irrelevant, because Congress didn't say so expressly. And we cannot presume the agency has this authority unless Congress acts. That's what this court may be dealing with. And that's why many people in the environmental community are petrified.

Nic
Yeah,

Fred Wagner 
About what a negative ruling could mean, because if they come out and say no, Congress has to act and we can't take steps to control or regulate greenhouse gases. As we talked about the beginning of the podcast, what are the odds of Congress acting these days?  Very, very small. And so the worst case outcome from the environmental perspective has been, you know, sorry, we may think or that greenhouse gases and climate change is an existential threat, but no one agency without that express written authority from Congress, you really can't do anything. So Congress do your job. And people are really worried about that. Not just for greenhouse gas, but we can think about any number of other scenarios where EPA is addressing PFAS is another example. What about that? We've known about them for a while, but can we regulate them differently under the hazardous waste laws and so forth? And you could just imagine a decision that sends the Congress has to be more expressed, and its direction to the agency, you know, triggering a whole bunch of litigation from opponents of environmental regulation to say, hey, look, I already have this in the statute. I don't see Congress say this. So EPA or Interior or whomever is doing environmental and natural resource regulation. Sorry, you can't do it unless Congress says so. So. There's a there's a whole bunch of people really on edge, depending on what's gonna come out of this Clean Air Act case and your arguments were pretty muddled. And there was not a clear sense that there were five justices ready to jump to the extreme. But nor was it clear that there were five justices ready to say anything, really. That was going to be useful here. So it's one of these cases where until we see the opinion is very hard to predict. You know how this is going to come out. And then once it does, the potential is for an earthquake in the field of environmental law, or maybe just a small tremor depending on you know, how the justices end up writing their ruling. So it's one of these huge wait and see moments, literally a cliffhanger. You know, to go back to my theater analogy. This is a cliffhanger that I don't think many people can predict exactly how it's gonna turn out.

Nic 
I mean, my gosh, and I know maybe I shouldn't ask this question, but I can't help myself here like, so if the Supreme Court is taking on cases that they've already reviewed, and they keep doing this in a way because they have a new court. And they if they keep passing things that overturn what a previous court has said, does that do anything in my mind, that immediately tells me that that's a political thing that they're doing the courts supposed to be apolitical, but these are concrete examples of them genuinely being political, whether they want to admit it or not. And do they weigh that in when they're having these conversations? Is it something they think about?

Fred Wagner 
They do, and if you read some of the dissenting rulings from the case that I talked about earlier? I think Justice Kagan raised this. I think Justice Sotomayer raised this. They said straight out that, that we fear for the future of the court. Yeah, you know, because it's going to give the impression exactly as you portrayed that we are no different than the candidates running for office. Right. We take a political position depending on our personal views or views of the people that appointed us. And you know what, that is not what the Supreme Court is all about. It's just not. And I have to tell you a story. And yes, it's non political statement, but my wife and I have the pleasure of meeting Merrick Garland in the in the middle of the time when his nomination is being held in limbo to the Supreme Court. And my wife, being the government teacher asked the judge, you know my kids always ask this, that you're you just got appointed to the court by Barack Obama. You know, a case comes before you. It's clearly really important to President Obama. Whatever subject matter and now you have to rule on it. Do you really, really, truly rule in a way that doesn't take into account that you got your job because of this guy?  He smiled as he's a very gentle man. Very gentle soul. And he said, Mrs. Wagner, you can tell your kids, that is absolutely true. We do not take into account who appointed us.  We look at every case on facts and make the best decision under the law and you could tell that's in the passion. Voice, how strong he believes in that. And my fear is that these reversal, without strong justification of law as to why the court would do so chips away at that bedrock principle. Right. So it's, it's kind of sad commentary on where we are that folks may not have the same kind of faith that they should have in an institution like the Supreme Court of the United States.

Nic 
And I know it's frustrating like you say, a little scary and we've got cliffhangers everywhere and I would love to say we're getting to segue into something less dramatic. But now that this is a show we have so I don't know one of the things we've been talking to you about since we started was the environmental justice initiatives for the new administration. And you know, there's a Environmental Justice for All Act which would open legal avenues to communities to sue over environmental discrimination, and add programs and regulations to ensure marginalized communities don't suffer from disproportionate environmental harm, but that's all heated arguments in the house. And it is something that I don't know if it's possible to get through, but we know EJ and equity enforcement are coming out from different agencies like EPA and Department, justice and others. So what can we kind of expect to come through on the environmental justice front?

Fred Wagner  
Yeah, don't expect legislation. First of all, I don't I just don't see that getting enough traction. Certainly if one or both of the houses flip after November is the option that you aren't going to see? Literally, I would say dozens of individual actions from agencies around the federal government, dealing with equity issues in any number of different ways. There are gonna be rulings on title six petitions now in front of EPA in front of HUD in front of DOT, where the agencies are going to say yea or nay that there were no violations of title six and the agency did not properly take into account the effects to dispersion that already community's reaction is to see that you're gonna see enforcement action by EPA, where the potential violations are particularly harmful to marginalized communities. There's an absolute emphasis if you have no choice between five different enforcement actions, and you're going to pick the one that EPA that is adjacent to or nearby a minority community. There's just no doubt and there's gonna be a lot of those. You're gonna see permit review. You know, where, you know, low community shots permit reviews, because they claim that the state permitting authorities haven't adequately take into account the cumulative effects of other permitting decisions in and around communities over a period of time. And EPA is going to be coming out soon that with two effects guidance specifically designed to help agencies figure out how to take that off, not NEPA cumulative effects, so I write environmental general effects. PS. I do think they'll have a carryover effect to me, but that's the discussion for another day. You're gonna see that you're gonna see guidance coming out of the CEQ on the justice 40 initiative on how agencies should be calculating the relative benefits of their actions for minority communities again, thinking that the goal of 40% of all expenditures, having those effects to help those communities and that guidance is coming out soon. You're gonna see between now and our predict the end of the year, an inordinate amount of individual action, or guidance or directions to agencies that have been rolling issue and then circling back to our whole discussion, and guess what happens next.

Nic  
It gets to litigation.

Fred Wagner 
Already, we're gonna see litigation from the court discussing the scope of authority under Title six. Scope of authority under of the Civil Rights Act. You know, how much environmental justice can or should be used in the consideration of these decisions? And, you know, we'll be having this discussion a year or more from now about some of those rulings and whether the discretion of the agencies was upheld or not, based on a whole variety of actions. So, don't hold your breath for congressional action. Do hold your breath because you can see an abundance of agency action. And then just imagine that waiting for the other shoe to drop on whether those decisions, the regulatory guidance documents are upheld or not.

Nic 
Yeah, like I say, it's a wild wild time. It's just really is and yeah, so

Laura 

It is. My head is spinning. I don't know how you do this everyday Fred and not just like go bonkers. You must have ways to disconnect and maybe we can talk about that next time to say that

Fred Wagner 

And whose to say that I have not gone bonkers? That's for you and the audience to decide.

Laura 
Well, as we continue to have these conversations with you all will keep an eye out for signs. But we're pretty much out of time. What is there anything else we missed that we should quickly mention before we leave today?

Fred Wagner 
No, I don't think we covered it all, but I think we covered it all the highlights and the things that I think we will be reading  about most of the newspaper put it that way. No, things that make the headlines I think we definitely covered.

Laura
Perfect awesome. Thanks so much.

Nic
And thank you as always for your time for it. It's so great to catch up with you. Hopefully we'll have better news next time but it's still really great to hear what's going on and I genuinely appreciate your thoughts and opinions here. So before you leave, tell the people where they can reach out to you.

Fred Wagner 
Definitely anytime people want to chat about these or other topics reach out to me at Frwagner@venable.com. Venable's a proud sponsor the podcast. We were so happy to do that again this year for you all and you could do that, looking at the Venable website and tag me and email me. I'd love to hear from people.

Nic 
Awesome. Thank you, Fred. Really appreciate it.

[Outro]

Laura 
All right. That's our show. Thank you, Fred so much for joining us again today. Please be sure to check us out each and every Friday. Don't forget to subscribe, rate, and review.

Nic
Thanks, everyone.

Laura

See ya.

Transcribed by https://otter.ai


Nic & Laura's Segment- Illustrious Theater Careers
Interview with Fred Wagner Starts
Supreme Court
Waters of the U.S.
GHG Emissions