Career Development, Offshore Wind, and NEPA with Ted Boling

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 Ted Boling, Partner at Perkins Coie LLP about Career Development, Offshore Wind, and NEPA.   Read his full bio below.

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Showtimes:
1:29  Nic & Laura talk about visiting and living in DC
10:34  Interview with Ted Boling Starts
10:49  Career Path
28:13  Offshore Wind
41:21  NEPA

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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 Ted Boling at https://www.linkedin.com/in/ted-boling-66326811/

Guest Full Bio:
Edward (Ted) Boling served as the country’s top National Environmental Policy Act (NEPA) attorney as an associate director at the Council on Environmental Quality (CEQ) in the Executive Office of the President. Ted served at CEQ, the U.S. Department of the Interior (DOI), and the U.S. Department of Justice (DOJ) in Democratic and Republican administrations. His experience includes deep involvement in federal infrastructure permitting issues and the first comprehensive revision of CEQ’s NEPA regulations in 40 years.

Drawing on over 30 years of high-level public service, Ted currently advises leaders on transportation and energy development projects, agencies that must hire outside counsel, and the environmental professionals that support them on the development of renewable energy, resource development, transportation, and infrastructure. Clients are drawn to working with him because they know that by tapping into his experience, they will be able to prudently manage and effectively defend the choices they make, resources they commit, and risks to which they expose their organizations. 

Ted’s extensive government experience at CEQ included the development of the National Ocean Policy, CEQ’s climate change guidance, and the regulatory response to the Deepwater Horizon disaster. He drafted NEPA guidance on mitigation and monitoring, cumulative impacts analysis, and the development categorical exclusions from detailed NEPA documentation. Ted advised the White House on the establishment of numerous national monuments, including the first marine national monuments in the United States and the largest marine protected areas in the world. He also assisted in briefing three U.S. Supreme Court cases.

At DOI, Ted handled matters involving energy development on the outer continental shelf, including offshore wind power development, and the fast track for solar and wind energy projects on public lands. He has provided legal and policy advice on environmental issues concerning the Federal Columbia River Power System and the California Central Valley Project.

At DOJ, in the first 10 years of his legal career, Ted litigated significant cases involving NEPA, endangered species, marine mammals, wetland protections, and management of public lands. He was involved in litigation concerning the Endangered Species Act, National Forest Management Act, and U.S. Coast Guard and Federal Transit Administra

Transcript

Transcripts are auto-transcribed

[Intro]

Laura 
Hello and welcome to EPR with your favorite environmental nerds Nic and Laura. On today's episode, Nic and I discuss living in DC. We talked to Ted Boling about career development, offshore wind and NEPA. And finally some beetles can survive being eaten by frogs. What? They go in one way and out the other intact, alive and haunted by what they've just been through for the rest of their lives.

Nic 
Is this the grossest thing ever? I don't know.

Laura 
I guess those carapaces are very important

Nic
Yeah, strong enough to survive

Laura
Nevermind.

Nic 
The more you're talking about it the worse it gets.

Laura 
I know right. Let's get out of here. Hit that music.

[NAEP Event News]

Nic 
Congratulations to Carol's Sneed for becoming the next NAEP fellow. NAEP fellows are members who are awarded by the board of directors to members who have made significant and substantial contributions to the growth and development of NAEP. Anyone that knows Carol has nothing but great things to say about her and we couldn't be more thrilled about her receiving this award. Congrats Carol!

Laura
Woohoo!

Nic
We appreciate all of our sponsors and they are keep the show going. If you'd like to sponsor the show, please head on over to www.environmentalprofessionalsradio.com Check out the sponsor form for details. Let's get to our segment.

[Nic & Laura Segment: Living in Washington, DC]

Laura 
Nic Have you been to DC?

Nic 
I used to live there.

Laura 
You lived there? What is living there like?

Nic 
Um, everybody that comes to visit you wants to go to Smithsonian and you're like no. Here's the metro line you need to get there. Good luck. So DC is really unique in a lot of different ways. It's got culture from everywhere, it oozes culture. So there's, you know,

Laura  
What do you mean it oozes culture? Because when I picture DC I picture a bunch of business people running around if that 110 speed with the suits and ties on like that doesn't feel culturally to me.

Nic 
Well, I guess I mean, foodwise right. And to be fair, that is absolutely DC elite. If you talk about Congress, Capitol Hill, all of that there's absolutely, absolutely that, and it's a you know, go go go mentality. It is 125 miles an hour every single day. Yeah, and that's absolutely right. But there's also there's a lot of different cultural aspects to it. You get food from anywhere everywhere, and it's really good. And that's really fun, really cool. But the hustle and bustle part of it is if you're not excited about that, if you don't love being in traffic for two hours, if you don't enjoy just pushing yourself every single day. It's just a really hard place to be. And a lot of people leave because it's it's exhausting. It's an exhausting place to work. Everybody's in a hurry. Every single person there is so
Laura  
Interesting. So do you have a favorite part of living there? How long have you lived there?

Nic  
Three years. I mean,

Laura
did you like any part of living there?

Nic
Of course, of course, there's a sense of importance to the area. It is always in the national news. Whatever is going on there. It makes news that's interesting. There's a I think the commitment to public engagement is very high. And the right to protest the right to be American is very much on display in any number of avenues. One of the most interesting is going to public meetings and having 12 year olds ask you questions about your project because they're they read it they're interested, they're invested. And they want to know what you're going to do. I mean,

Laura
Yeah, that's what Ted said.

Nic
Yeah, you expect that to be the case. And it's not for everybody, but it's a really cool I mean, I really do love it. I have a really odd nostalgia whenever I leave and I come back, it kind of feels like home in a way. It's especially on Virginia side of things. I'm a little biased. I grew up in Virginia.

Laura 
Okay, stop, so what's the difference between the Virginia side and the other side's

Nic 
So DC is right in the middle of between Virginia and Maryland. Right and so the DC proper is one one region one part of it but everything in the surrounding area. Northern Virginia, Southern Maryland and there's a say there's a rivalry there is maybe an understatement but because there's you know the traffic is one of the biggest things that with DC and people have to say that everyone in Virginia says the Maryland drivers are terrible and everyone in Maryland has a Virginia, you know, it's kind of how it goes. And of course the Virginia drivers are correct. As Kara is shaking her head.

Laura 
She's like, I'm Maryland all the way.

Nic 
But I don't know it's it's a really I mean, it can be a really inspiring place and you see a lot of change and a lot of progress has happened and it can be a really frustrating place to be. Yeah. Kara did you live there?

Kara Lubold 
We lived Gosh, in the early 90s. We lived in Silver Spring which is on if DC is on  kind of like a diamond it's on like kind of the one point and so we lived about a couple blocks from the Silver Spring metro station.

Laura 
And did you like living there?

Kara Lubold 
I loved it. Yeah. But I was also much younger. I had a higher, you have to have a high energy level. You know, like that high energy. It might be different if I went back there now. But culturally, there are a lot of diplomats that live there from other countries. A lot of it's a very, I don't know if transient is the term I want to use but people move into the area from everywhere around the world. So yeah, like Nic said, there's the food is incredible. You can get any type of food from anywhere. So and there's lots of culture, sitting in the metro, I used to take the Metro to work. You know, you're just immersed in all kinds of culture. So it's a really fascinating place. It's, I love it.  I used to enjoy going down there.

Nic 
We usually like one of one out of every 10 metro rides is unforgettable for one reason or another.

Kara Lubold 
Yeah, That's about right.

Laura 
All right, well, maybe we'll have to go visit for a third time. For something and hopefully not when it's a million person march again. That was cool to be a part of but not multiple times.

Nic 
You know, everybody wants to come see the coolest, you know, the touristy stuff and you're the if you live there you are as far away from that as possible. It's just how you try to do anywhere. And really, honestly like, the funny thing for me with DC is like I did not realize what it was culturally until I left the mentality there is just that like, I think I told you guys like when I moved to North Carolina, like 5pm on Friday at 4:30 Everybody in my office left and like Where the hell are you going? And then driving on the roads. Like it took me two weeks to realize I'm the only person dodging between cars to get to where I need to go. If you don't do that in DC, you'll die. You'll literally be killed by other drivers. But, you know, in North Carolina, everyone's like, hey man place is gonna still gonna be there no matter when you get there, you know? Yeah, yeah, just different.

Laura 
That was not a North Carolina accent whatever that was supposed to be.

Nic 
Oh, it wasn't supposed to be anything.

Laura 
It kind of sounded like some other kind of accent.

Nic
I did not mean to. It does slip in there sometimes

Laura
I don't know, you slipped in to something, and I don't what it was.

Nic 
Ya know, it's just kind of like, you know, breathe. That was what I was told like you after the first like month I was like you need to breathe.

Laura 
Slow down there city boy.

Nic  
Yeah, pretty much.

Kara Lubold 
Taking the metro. It's like there's a right side and left side of the escalators. And if you want to ride the escalator in one place, you stay on the right. If you want to walk up that walk up because you're in a freakin' hurry. The left side and you are standing in the left side and people are

Nic 
Yeah, they'll tell you to move.

Kara Lubold 
It's like that escalator etiquette.

Laura 
Several cities in Europe are like that, too. Yeah, we'll get bumped out of the way if you're in the middle of it.

Nic 
Is there anything you wanted to say? On your experiences with this D.C.? We didn't ask you.

Laura 
Oh, I mean, I've just been to DC that two times one was the road trip after high school and it was with my boyfriend at the time and his and his friend, our third wheel. And we did just a lot of like sightseeing stuff. And then but they were both two punk rockers with very big Mohawks in DC and I had some really cool photos from it. Back when that was not common, and you know, there's a lot of looks. There was, you know, people probably would have assumed we were from New York City, but we were from Tampa, Florida. And the second like I said the second time was the first women's march and it was March it was very cold but it was really cool to go to that with so many people and it be so peaceful. Like everyone was respectful and

Nic 
like yeah, what was it like you're telling me Tell me more about it.

Laura 
You know, I don't really participate in a lot of protests and stuff just because I'm not an activist. You know, I donate and do things my own way but I don't spend a lot of time out you know, holding signs and doing stuff like that. So it was a different experience for me. Obviously an important one, but my boyfriend's aunt wanted to go so we're like alright, well, we'll just all go. And it just like we parked in Maryland. We parked probably around where you were Kara. We parked here and then took the train in and and it was just like I never so so many people like a giant festival almost. But everyone was just so nice and courteous and you know friendly. It was just you don't get that even you go to a concert. It's you bump into people and you know people are rude and pushing you over and stuff. But there are even parts where it gets to like bottlenecks or corners are really crowded and you have traffic going in both directions. So people are pushing past each other and it was still just so polite. You know, so having that many people who are all there for the same good cause it was really, really neat.

Nic  
Yeah, that's I mean, that's part of the DC culture as well as there's always a level of activism. It's literally present every day. You can always find somewhere some way someone is going to be saying something about somebody or someone something. Just what happens.

Laura  
Yeah, so yeah, I would like to go back.

Nic 
Yeah, well, we have a lot of people that can give you some tips on

Laura  
Including Ted, our next guest, so let's get to his interview.

[Interview with Ted Boling Starts]

Nic 
Hello, and welcome back to EPR. Today we have Ted Boling on the show for a second visit. He's a partner at Perkins Coie, LLP and was the Associate Director for NEPA at the Council on Environmental Quality. Welcome back, Ted.

Ted Boling  
It's great to be back.

[Career Path]

Nic 
So when we had you on last time, we really didn't dive too much into your career path. You started out as a trial lawyer for the Department of Justice and are now an offshore wind history industry after stopping off at CEQ. So how did you navigate your career? And when did you know it was time to kind of move on to new opportunities?

Ted Boling  
Yeah, well, I went to law school to do environmental law. I pretty much decided in order for me to be involved in environmental issues. The right path for me would be to be a lawyer. And so I went to Washington University in St. Louis is where the author of the NEPA treatise, Dan Mandelker was the major professor for the environmental law program. And that's really why I went there and people said, Oh, well, you want to do environmental law, you should go there. But as luck would have it at the same time so I worked with Dan, I also Richie Lazarus, who's now at Harvard, was teaching there at that time, so I had I lucked out to become the editor in chief of the Journal of what was then the urban and contemporary Law Journal. Now it's a law and policy. And so I had Richie Lazarus as my faculty advisor. For the first half of that year. And Dan Mandelker is my faculty advisor to the second half and it just became his great experience from these two giants of environmental law, that in particular, Richie, Lazarus sort of advised me on going to Justice Department like you need to, you need to be an honors attorney at DOJ. It's the only way you can just get right into the practice of environmental law immediately. And so I interviewed twice, I went to Kansas City and then also to Washington DC, used the most of that opportunity. And I'd interviewed with law firms and that sort of fact, and I was planning on going to a law firm, but I told them all. But if DOJ comes through, that's what I'm going to do. And they're like, hey, great, do that. If you get it, we'll see you here in two years or so. And luck turned and lo and behold I managed to to get it I went to the policy section that was attached to the Assistant Attorney General's office and just got immediately into spotted owl litigation and all the land management biodiversity issues. I was in the thick of it right from the start. I argued a case in the Ninth Circuit Court of Appeals when I was just like, I think it was maybe a year and a half out of law school. It was a big flat out case and it's a lot of fun. Although I was just I was hooked, and that did so for 30 years after that I just kind of bounced around the federal government and my career path. I mean, it's kind of interesting, use the word navigate, I would just say it was really more like a pinball in a pinball machine. I bounce into things and people would say hey, would you be interested in doing this? I didn't look for another job, really until about 2018 when I realized, Okay, I'm coming to the the end of the rope here. But I had worked with George Frampton and the Department of the Interior on detail from DOJ worked on Grand Staircase Escalante National Monument and Tongass National Forest stuff. And then when he went over to the Council on Environmental Quality, he said, Hey, would you come over here? And I'm like, Okay, sounds good. spent 10 years at CEQ. And then, you know, in 2010, after we'd written the Deepwater Horizon oil spill report and such like Yeah, I think I want to get him interior and work on renewable energy projects because they were doing smart from the start, as well as also the offshore wind program as well as also fast tracking wind and solar projects in the California desert. Worked on the the programmatic EIS for solar in the six southwestern United States. You know, I was great for about five years, I became Deputy Solicitor for Parks and Wildlife and which was an amazing experience and then you know, 2016 Horst Greczmiel said, hey I am planning on retiring, would you please come back to CEQ and take my job. So, that's kind of how I've always operated. I just like, you know, I've been very lucky I actually got to do what I set out to do, and just kind of keep at it.

Nic 
Yeah. So you mentioned that you know, you want to the environment you need while you're being a lawyer was your path. So what drew you to that? How did you know that? And are there any misconceptions about being a lawyer that you want to dispel on the show? Because I'm sure there are some.

Ted Boling 
Well, I caution anyone against you know, just thinking being a lawyer is an easy career path or you know, that it's just I'm, oftentimes when I hear people saying, well, I'm thinking about going to law school, I'm like really, okay. Why, and what is it about that, for me, is actually a civil rights and civil liberties law class that I had an undergrad where I just kind of clicked with it. And I did pretty well on the law school aptitude test. And so I just kind of knew that that was sort of my my skill set. I do have some lawyers in my background, and my father certainly wasn't one or my mother, but my mother was a really great and she was an editor, sort of like basically an English teacher at heart. I grew up correcting my friends on grammar, and losing friends because of that. But then, you know, I just had this sort of affinity for the tools of the trade. And my dad worked for the government. So I had a very much a sort of a government orientation. They worked for House Appropriations Committee, and then ran the Food Nutrition Service for a while. So

Nic 
Oh wow, yeah, so there you go. Um, yeah. So what was it like when you worked as the Associate Director for CEQ, you know, I imagine being a lawyer in general is just nonstop work all the time. But is it actually as crazy as that and how is it different than what you're doing?

Ted Boling  
Yeah, it was kind of hair raising. I mean, uh, you know, to be at CEQ particularly, you know, in my second tour, you know, I was deputy general counsel and then General Counsel CEQ and, and I was in a council role, but to be actually responsible for it as Associate Director for NEPA, was kind of hair raising. I mean, it's towards the end of the Obama administration of course, our focus was primarily on the greenhouse gas guidance that we issued in August of 2016. That was a real labor of love actually, picking up and finalizing a document that I'd actually started at the end of the Bush administration. And I'll never forget, I started off with, you know,Jim Connaughton and wanted to try to draft something. And so that's where picking up from like, you know, the Mauna Loa observatory data like we ought to have me here, whereas global CO2 levels right now, and I've been tracking that number ever since. And then I left that effort behind when I left CEQ in 2010. So to pick it up again, after we you know, we we've done drafts, we've gotten comments and such. And to bring that to closure was was a lot of fun. Of course, we also had oversight hearings and controversy associated with it. And it was heartbreaking to see that pulled back and make another run at it. And then of course in the Trump administration. There is a heavy focus on updating the CEQ regulations. And so, working on the advanced notice of proposed rulemaking, the rulemaking itself, I never imagined that an endpoint of that would be a rule that got announced a draft from the White House in January of 2020. And then finalized in a big events in July of 2020. That's that. Yeah, it was a it was an experience.

Nic 
I could imagine I could only imagine actually.

Ted Boling  
I mean, we saw the need for an update to the CEQ regulations coming. And certainly I would expect that the Clinton administration the Hillary Clinton administration would have taken that on as well. It's just you're opening Pandora's box, because you've got that great body of case law and I just I'm still a huge fan of what CEQ did in 1978. The CEQ regulations are written in ways that you don't write regulations nowadays. I mean, with these great lyric phrases in there about how you know alternatives are at the heart of the NEPA process. And so to mess with that, it was somewhat heartbreaking. But there were opportunities. I mean, frankly, it was a very, you know, they're written at a different time where we were talking about sort of like, paper based exercises, and so to redefine what do we mean by a cage as 500 words and exclusive of graphics and actually, you know, support, actually readable document in a new native format or make it technology neutral so that you could actually evolve with public involvement as it progresses. Of course, we issued the proposed rule and then all of a sudden, we're in a COVID environment and just you know, the walls came down, just you know, that all of a sudden, we're doing everything by zoom. And, and that was an interesting, interesting exercise on realizing the digital divide and how it became a nationwide digital divide. And especially important, I just, you know, having spelled out the affirmative duty to agencies to reach the public that would be affected by their action, not just you know, sit back and say, Okay, we issued a notice and we didn't get any comments.

Nic  
Right, which you know, it's actually a very good point, because I think, you know, it's easy for many of us to kind of forget that. Yeah. Okay. Well, not everyone has internet access. Not everyone has good internet access. And a lot of times the people that you are trying to reach, don't have big papers they may be how they even get their news can be completely different.

Ted Boling  
Yeah, but um, yeah. And also, you know, it goes back to that lyric phrase in the 1978 regulations about it's not about better documents, but better decisions. And so engaging the public becomes it's a challenge, especially when you're competing against lots of other inputs and things that might get people much more jazzed than but what you're talking to them about actually has an effect on the quality of their environment.

Nic 
Right. Yeah. And what do you have any advice for those that, you know, because sometimes we have clients that don't want us to talk to the public, even though we need to and sometimes we have clients that want us to talk? And that's all they want us to do is go talk to the public. So do you have advise for kind of threading that needle getting good input for everybody.

Ted Boling 
Yeah. I mean, it's all about meaningful engagement. When I was at CEQ, and I was meeting with the offshore wind industry, and we'd have certain developers come in and say well, we had x many meetings, as though the number of meetings right was a measure of success, you know, like, we ought to be able to know that now because we had x many meetings. Okay. And yet we're we're hearing from those communities about a lack of engagement and really, you know, that is engaging with their concerns, whether you think them to be valid concerns or not explaining the limits of technical and economic feasibility on what they'd want to consider or you know, why their pet issue is not an issue here. I mean, it's still important, frankly, I've seen a number of projects where people are very worked up about something and half the battle is explaining Okay, I understand your concern. That's not us. And, you know, or here's how we're going to actually make this better. And that's true with regard to infrastructure projects in particular, there isn't an infrastructure project out there that doesn't involve some degree of trade offs and engaging the public in that sort of decision makings. It's a fun exercise. It's a good challenge.

Nic 
It really is just reminded me of a community meeting we had for a Transmission Line project is an EIS. Yeah, candidates in New York City, you know, and so you can imagine it's six pages long and I think even just saying just having a model of the line, absolutely helped us. Explain that. This is not what you guys think it is. It is not this huge, mega thing. It's going to destroy your backyard and to do all this other stuff. But yeah, just the perception of the project versus the reality of the project. It was our job to get them to see that.

Ted Boling 
And still, it's a great challenge. I mean, you have to use all the tools of the trade to explain the context and such and we were actually my firm. I'm in the midst of litigation on a transmission project that was designed to bring wind power from the High Plains, across the Mississippi and to Wisconsin. And, unfortunately, to get across the Mississippi into Wisconsin, you have to cross through a wildlife refuge and so it's you know, it's a question of alternatives to using an existing right away, which is not the best location, I mean, the existing rights away or right through the woods and through a town and that sort of thing. And so, but explaining the trade offs and explaining also, yes, transmission is necessary. Right. There's you know, you can't just wish upon a star or you know, for new technology, better batteries and distributed generation that you know, there's no replacement for a 345 kV line. But, you know, explaining that to the public, to a judge. Now three judges on the court of appeals, you know, those are those are good challenges.

Nic 
Yeah, absolutely.

Laura 
Yeah, we're feeling all that here in Syracuse, too, with the replacement of the upper Decker I-81. Highway. There's been years long talks of the alternatives and what they can do and, of course, there's trauma within the community. So there's, there's so much to it, because it's not just a matter of trade offs is one things but also lifestyles and undoing past harm and other things. So anybody who wants to get to this kind of work, it's something you have to be passionate about, right?

Ted Boling 
And it's so necessary too. Actually, you know, highways, I mean, it's the other part of my practices is on transportation. And some of these, like the highway to decisions, they're really fun because they're, you know, you're going back revisiting decisions that were made years ago, or you know, and I was just listening to a podcast, I'm a big fan of podcasts about the Embarcadero and in San Francisco and how people fought taking down the Embarcadero elevated highway for years until it basically had to come down because of earthquake. And and now they realize oh, my gosh, this is, this is actually transformed that artists San Francisco and in a really good way.

Laura 
Yeah, I'm really excited. They finally decided on a pathway to move forward and I can't wait to however many years in the future to see it finished. The current overpass or elevated highways not in good condition. So I'm looking forward to just moving forward on anything. But I want to circle back before we move forward on your career path and the pinball machine that you live in. You mentioned that you know you're lucky to have these opportunities in your career but I'm always talking to people about part of being extremely accountable is also being accountable for the good things that you've been, you've done to contribute to your own success. Because that way then you can share them with others. So I would like to know, what do you think are those contributing factors that you did that led to opening doors and getting invited to come serve in different roles? I think that's important for people to know that you weren't just lucky, but you showed up what were your ethics, what for you is self leadership? What drove you to get those opportunities?

Ted Boling 
Wow, that's a really good question. And it's gonna take a few days of self reflection.

Laura 
We'll answer this on the next time around.

Ted Boling 
I think he might refer you to a few friends to see. I think, you know, for me, it's always been kind of focused on the fundamentals. What's the nature of the problem that we're trying to solve here? Really understanding the history behind both problems, as well as also really the law and the law, the regulations, they applicable case law, and, you know, frankly, I just, I kind of live and breathe this stuff. It's really it's a passion. I mean, there's a certain emotional component to it. It's like you know, if you're, if you're bored with your job, you really need that look into well, okay, so what is it that's not motivated me here? Sometimes you have to, you know, take a step back, Stephen Covey says, sharpen the saw, you need to do things so, you know, make yourself more effective, but ultimately, it's really being connected to what motivates you, and what is it that you can contribute?

[Offshore Wind]

Laura 
Awesome. I know it's good for people to hear like that. Okay, now we can move forward to a question that you were ready for. So Perkins Coie recently helped develop an offshore wind report with the Ocean Conservancy? What does the Ocean Conservancy do and how does it tie into your work?

Ted Boling 
Oh, well, Ocean Conservancy is, you know, it's an organization I was very familiar with, from my time at CEQ working on ocean policy and the development of the Obama administration. initiative there and then later on when I came back, working with the Office of Science and Technology Policy, so I, I knew the folks at Ocean Conservancy as really focused on sustainability, particularly sustainable fisheries, reducing ocean pollution. You know, they're doing some great work and Florida for conservation of manatees. They're very effective advocates for funding for the National Oceanic and Atmospheric Administration. So I just had a great familiarity as, you know, former colleagues there, and so it's one of those great surprises of coming into private practice. And I'm, like, wondering, so who's gonna want to, you know, hire me or work with me. And these, you know, former days colleagues said, Hey, we're interested in doing a report on offshore wind would be like a set of recommendations on how to actually develop offshore wind that's consistent with Ocean Conservancy's values of of good ocean planning and ocean stewardship. And it was just immediately attractive to me because it's like, Okay, here's an environmental group that's really interested in actually developing offshore wind in a responsible way. So I said, Okay, let's run with this. We spent a lot of time working on that report. It's a very detailed summary of federal law, as well as also just, you know, ideas that had been percolating around for me because I'd worked on the existing BOEM regulations, the Bureau of Ocean Energy Management regulations back in 2009. As well as also being involved in the Secretary Salazar initiative Smart from the Start. It's I'd seen this for a long time and I just I had these ideas that have been percolating along it
became an opportunity to express that also really learned about Ocean Conservancy's interest in in ocean legislation and improving resources for federal and state agencies to work on these problems. So it became a just a fascinating report. I almost couldn't let it go. But, however, as we were drafting it, this administration is moving out so fast on so many things and we just, you know, every week it was like, they just issued another, you know, recommendation that we only we need to retool that recommendation because they trying to stay ahead of what was coming was it became a real challenge, but it's been a great report. We issued it in May, just prior to Capitol Hill oceans week, which we just concluded, and we've done briefings for senior administration officials and other groups and it's been well received.

Laura 
That's awesome. Is that something that's publicly available?

Ted Boling 
Oh, yeah. Yeah, it's, it's up on? Well, I think there's a link off of my law firms website but certainly prominently on the Ocean Conservancy website and then I pushed it out on LinkedIn and things like that. So and actually, just on Thursday, so we're talking what Thursday that the ninth we published a law Op-ed on the Hill, Amy Trice and I did so, Amy's who was the lead of the effort for the Ocean Conservancy.

Laura 
Okay, so it seems like scaling up offshore wind is a challenge, obviously. And do you think that it's ever going to get to a point of being a dominant source of energy in the US?

Ted Boling  
Oh, I think it has to absolutely I mean, you look at both the energy needs of the nation, the energy potential offshore is just it's huge. And we've seen now we've had some tremendous activity and offshore leasing $4.3 billion of lease sales and the New York bight and then also followed by Carolina Long Bay bringing in for just to lease sales, rent and 15 million is just a lot of lease activity there. So there's a lot of interest, a lot of investment there. The long pole in the tent is transmission, and that is you don't build wind generation without having a plant into the grid. Because the grid is this you know, as you know, from your work of transmission is that it this dynamic load management environment there and they have to plan to incorporate new generation sources. But we're we're in the midst of a national transition from fossil fuel based energy to increasing load of renewables and the offshore wind is that I would expect for certain parts of the country I'm talking New England and the Mid Atlantic and possibly also on the California coast of the Pacific, it could be a dominant source of energy and on California BOEM has just issued a proposed sale notice for leases in Morro Bay and up in Humboldt. So they're they're limited opportunities there, but great potential and different technology. It'd be floating wind technology out there as opposed to the monopiles you see out there. It's an exciting area. We're working with clients it's just been it's been a lot of fun to really be on the you know, the developer side of it all as well. And so I'm sort of foot in both camps because I'm working with you know, like Ocean Conservancy at [unintelligible 33:45], but now I'm also working with developers trying to do it right. And really, you know, in many ways, just at the start of the process,.

Laura
Yeah, it's very cool.

Nic 
I just want to give you an opportunity too to kind of talk through you mentioned lease sales. So how do they work? What is the point of them and why are they so important to the industry?

Ted Boling 
Well, okay, so just basic understanding is that the Outer Continental Shelf is owned by the federal government so that you know, all that all that submerged land, more than three miles out off the Atlantic coast or Pacific coast, from three out to 200 miles is basically under federal jurisdiction. So you don't you don't put something out there without approval of the federal government. And what these lease sales do is unlike an oil and gas lease, which you know, more or less carries with it, the right to go drill, there's some procedural hurdles to go through, but you basically buy in the right to reinvented a lease system for offshore wind where what you get is the right to go investigate the site, and then come back with a construction operation plan, but you really don't, buying lease you just buy an exclusive opportunity. To propose development in that area. But the real the heavy lift, in terms of environmental analysis is on a construction operation plan. There was some thought that well, maybe we should frontloaded is done with oil and gas, but the industry was so you know, it was developing. I mean, and frankly, the technology continues to develop. We're talking to developers who are planning on using turbines that don't exist right now. Because things are progressing to the point where they're getting bigger, they're getting more powerful, that determines how many turbines you're going to have out there. If you, you know, generate 500 megawatts off of a given lease sale. Well, is that five rather, you know, 105 megawatt turbines, you're going to subdivide that by the increasing capacity. Recognizing that is a dynamic environment we had a leasing system was set up, where it allowed for a certain amount of geophysical and geotechnical work, go out and figure out what the benthic resources are, as well as also engage with stakeholders, you know, with the fishing community, with the folks who you know, have cables running through that area. I mean, there's the ocean is if you think of it as being so vast, but there are a lot of users who certainly the Navy, the Coast Guard, I mean, they'll they'll say, Yeah, you think you could just kind of draw a polygon somewhere out there and put the wind power out there, oh, actually, there are a lot of claimants on that. And most of them, you know, they don't operate by right. It's just by tradition and by sort of the laws and physics of navigation. And so finding the right place and figuring out how to deconflict for this new use of the ocean space. It's a complicated matter.

Nic  
So you're telling me there's there are unwritten rules of ocean navigation pretty much.

Ted Boling 
Oh, There are a lot of written rules and tips last week talked, I was given a little sailboat that's a little 30 footer, a 1980 Pearson, a free though I'm doing air quotes for that because it will cease to be free once I put like the fair market value equivalent of money into it, and I'm well on my way there, but I've also sort of reacquainted myself with the rules of navigation and it's a complicated environment. It's not for the faint of heart, but I really do love that.

Nic  
Yeah, it must be What draws you to it. I think it's your MO almost going after.

Ted Boling 
Yeah. Well, I we talked about how I grew up sailing on the Chesapeake Bay and those sort of a goal of mine so I'm looking forward to getting back out soon. Maybe even tomorrow.

Laura 
I have so many like, dumb dumb questions about the logistics of actually building offshore wind, but I'll save that for another time. There are other maybe this is just related to are there other challenges in the offshore wind industry to get to where it needs to be.

Ted Boling 
Oh yeah. We could go through a huge list. I mean, I'd say it's sort of top of the list for me is back on marine conservation. And so on the Atlantic coast, you have a number of threatened or endangered species there, but the bellwether of them all is the North Atlantic Right Whale, which there are about 350 surviving, and they really went through the eye of the extinction needle, if you will, the entire population as I understand, descended from eight females. You can imagine I mean, it's called the Right Whale because it was the right whale to kill. A whale, who doesn't swim very fast tends to you know, hang out near the surface, and it was easy prey for the whaling operations coming out in New Bedford, Nantucket what have you, but now it's under great pressure from particularly these giant container ships that come into New York and all up and down the East Coast, as well as also fishing gear interactions and that sort of thing. So there's a there's a real conservation challenge there. And the real concern with regard to offshore wind is not the operations of offshore wind, but actually just the construction, the amount of noise and because like all whales and they communicate, they can be harassed by construction noise and you're talking about driving pylons into the seafloor there. So working through the regulatory issues and and the timing issues as well as also just how do you really help the conservation effort for the North Atlantic Right? Well, there are opportunities for just passive acoustic monitoring their location, it could really help their conservation.

Laura 
Yeah, I actually do in a helicopter ride in Hawaii and was really surprised at like, we flew over and the helicopter pilot was like, oh, there's a whale and then like it was gone. Like I didn't never occurred to me that like even the sound of a helicopter would affect the location of of a sea mammal, right. So it was crazy.

Ted Boling 
I was I was working on the case that became winter versus Natural Resources Defense Council and the Supreme Court, the Navy sonar case. I spent a lot of time with Submariners, and they told me about just that sonic environment that they live in where they're hearing whales, but they're also hearing you know, construction, and they can hear helicopters overhead within the way they're their biggest concern with whales is the whales like to rub up against the sub. But it's a fascinating environment and actually, you know, fairly noisy, you have lightning strike on the ocean floor. I did have a similar experience in Alaska. I went up in the Fish and Wildlife Service spotter plane out of Juneau over the Tenakee inlet. Again, like looking down into the water column at whales swimming. It looks like they're just flying. Beautiful cars clear water. It's just an amazing I'll never I'll never forget that moment.

Laura 
Oh, that's way better than my trip. It's sounds really awesome.

[NEPA]

Nic 
It's a part of the show where we all get jealous. That's the

Laura
I love it. That's really cool.

Nic
Okay, so yeah, that's all really great stuff. And we can't have you on without asking a couple of NEPA questions. So I know it's I can't help myself there. But you know, it's probably I've been mentoring a few folks on what NEPA is. And you know, listening back to your previous interview had a really great description of it, where you call it democracy with a lowercase d which I don't know why it just stuck with me. So I want you to kind of describe NEPA to somebody who's learning it and what resources would you point them to to learn more?

Ted Boling 
Well, I would describe it as frankly, it's I like the environmental democracy description because it's designed to inform decision makers and inform the public and it's helps educate the public about what the government is going to do to you and what your environment and and you know, what, what they're planning and, you know, that sort of, I bring the government I'm here to help you Well, okay. Let's define help. What do you mean and also being open to public involvement and that's the core of the idea behind environmental impact statements and really NEPA writ large is that it's ultimately a public education statute. Much of Title One of NEPA is geared towards advancing public understanding of the environment. It's ecology and ongoing issues and the issues that Congress was concerned about back in the 1960s are ones that we haven't solved. We've got in some cases they've just grown more critical. And certainly climate change is one of many ways we talk about like the Cuyahoga River fires in the 1960s Well, as an environmental justice issue, you know, we didn't talk about it in those terms, but our understandings get refined, I mean, you know, concerns about the impacts to biological diversity. I mean, it's, you know, now like we've solved that we are in extinction crisis, and understanding the effect of government programs on them or government actions, or both from the standpoint of consequences and opportunities. You probably hear we've got an emergency.

Laura 
I feel like you're talking about environmental crisis and all this background. Are you pushing buttons over there? Like there is a real crisis happening.

Ted Boling  
I'm at the office down at 13th and G Street in Washington, DC and you know, that we have that but in terms of resources to find people to buy, I really think that the CEQ website and NEPA.gov that you know, you know, Ray Clark and then Horst Greczmiel more or less created and then either redesigned, we have the Citizens Guide to NEPA we've just got some great resources out there. And so I encourage people to to use that as a for both practitioners as well as also just, you know, lay people.

Nic 
 Perfect. Yeah. And say I have I have two more questions for you on the NEPA front. You know, some of these are coming from conversations we had at the conference with different people talking about different things and one of them they came up was the technology initiative that the Biden administration has, we want to be using technology in the NEPA process to make it easier and better, more streamlined, all those fun things. So where do you see the industry kind of,  Where is it with technology? Maybe where is it? Where does it need? To go? What are we missing when it comes to technology and using it in the NEPA process?

Ted Boling 
Yeah, I think the the area where I certainly go by the adage that you know, a picture's worth 1000 words, but a really good map. I'm sort of map oriented. But can show interrelationships and show consequences and alternatives and help problem solving much better than any narrative description ever can. And so, having the words backed up by or interacting with the real world, if you will, for me, I'm a big fan of Google Earth and just being able to kind of zoom down on you know, what are we talking about? Where is this? How does this relate to that, the more that we can make environmental review, sort of live and relate to the databases that people years, people are, are mapping their way to and from locations constantly now and they're, you know, they're, they're pummeled with advertisements, you know, hey, you're gonna be stopping by this coffee shop here and we're, you know, that sort of thing. Having information about and, you know, did you know that this road is being studied to be realigned over here, and it would have this consequence and did you know that your combined sewer system here is regularly with the rain that you're experiencing today, exceeding the capacity of yours, your treatment plan, that kind of information? I think the technology initiatives really exciting because it could help better link these environmental documents to live databases to GIS layers that really get people's attention. And also, you know, resonate for decision makers. So that, you know, for me, the best aspect of the NEPA process is when you're actually using it to help involve people in problem solving.

Nic 
Yeah, oh man, it's a great answer. Thank you for that. And yeah, I totally agree. I think it's really interesting, exciting area. I'm really excited to see where we go in the next few years. And my last NEPA question, and I have to put a NEPA nerd alert out elsewhere. It's super nerdy, but it's just a curiosity question I have. So technically you can take an environmental assessment and either it becomes a Fonzi or you can decide to go to an EIS. And I've never seen the second one. I know it's possible, but almost in my mind, almost every time somebody wants to do an EIS or thinks they might have to do an ES they just do the EIS. So, projects that actually start as an environmental assessment, get all the way to the end, and they're like, oh, you know what, this has to be an EIS

Ted Boling 
The reason you you don't see it is because you don't usually doesn't hit the light of day as basically, the environmental assessment is being developed by whoever the proponent is saying, Yeah, we think we can get to a finding of no significant impact and others look at it. not see it, you know, what about this? What about this and, you know, they clearly have a finding of no significant impact in mind. And people just say, no, wait a second. That's not gonna fly. I mean, to have an environmental assessment literally get converted to an environmental impact statement. You'd issue it to the public and you'd have the public say, Wait a second. No, this needs to be me an EISI think I mean, it's a good question as to you know, 10 How many examples can you find where, like the Notice of Intent said yeah, we started this off as an EA but now we're doing it an EIS, I know those examples exist, but whether the NOI actually owns up to actually we tried this as an EIS now we're doing as he is, usually is just sort of like okay, let's bygones be bygones? We're just going out with an NOI. But the 2020 rules changed the role of the NOI as the start of the NEPA process to recognize that there's a whole bunch of scoping that goes into environmental process, an NOI is just the formal stage of it. And it may be that you know, you have greater sort of use of environmental assessments that really sort of, you know, Marshal up here the alternatives. Here's the effects mean, it sort of serves that purpose of an expanded an NOI now, where we have a more fulsome description of the proposed action, alternatives and effects. And what do you think that's a long winded answer as to why you don't have a whole lot of examples of EAs converted into EISs.

Nic 
There we go. All right, Laura, I'm done.

Laura
Did you get your NEPA fill?

Nic
I did. I did.

Laura 
 Okay, awesome. All right. Why do you my outdoor adventure fill so we really enjoyed talking to you last time about your love about shores and national parks and sailing and all those fun things. So what have you been up to since the last time we talked to you?

Ted Boling 
Well, let's see. Alright, so that was April of last year. So I went back to one of my favorite places on earth. Ocracoke Island, Coast of North Carolina. It's, you know, it's got a little village at one end of it, but most of it is just wild National Seashore, and it's wonderful. It's part of Hatteras National Seashore and then just across Ocracoke inlet is Portsmouth Island which is part of Cape Fear National Seashore and it's just amazing resource there. There is a lots of wild beach and to just have that, as you know, it's so accessible by ferry thanks to the North Carolina Department of Transportation. It's a wonderful resource as also on the other side of North Carolina and the Tennessee border. Last around New Years during Christmas in New Year's I was in the area of Great Smoky Mountains National Park and the Appalachian Trail going through Max Patch and just some really pretty country.

Laura
Were you actually hiking?

Ted Boling
Yeah, I stay at a  cabin and do end day hiking Yeah, didn't didn't overnight anywhere. But I did get onto the eastern side of the Great Smoky Mountains where I hadn't been before and saw elk. Oh, it was wonderful experience. Because my kids are like elk, elk. In the Smokies? No And  there are no elk out there. Oh, let me show you.

Nic 
I was saying that in my head just now.

Laura 
Right. That's really awesome.

Ted Boling 
So I really I love I suck at spanning North Carolina a bit. I need that I also I was out at the International Association for Impact Assessment meeting in Vancouver, Canada. And it's awesome friends there including Ken Weiner who was at CEQ in the Carter administration. Just a wonderful guy, and it's just you know, and I think Vancouver is one of the most beautiful cities on earth. It's just it was such a treat, just be out there in the parks and running around. And that was it was a great trip.

Laura
Very cool.

Nic 
Yeah, that's incredible. And like I always love hearing those stories from you. We are almost out of time and I hate it because we could keep talking to you forever. But is there anything else you want to cover before we let you go?

Ted Boling 
One of the questions that we haven't gotten to is about just public involvement changing a project I was looking around for, you know, sort of famous examples of public involvement, Natural Resources Defense Council as they're sort of NEPA success stories and such. But it occurred to me that you know, I deal with public involvement, changing projects on a daily basis. And so you know, so much of it is not just sort of like the big bright line, you know, the agency was going to do this. And the public completely changed it 180 degrees and they realized no, I mean, there are those examples, but most of it is just the sort of refinement and also changes and mitigation. I mean, I've seen this with California high speed rail or it's like, you know, okay, we're going to build the Burbank to LA segment here. We just had a board decision on that recently. But the public involvement really is embedded in project design, as well as also project implementation. And so I mean, I see this time and time again. So I'm no longer looking for that big bright aha moment. But it's really all the many subtle ways in which public involvement gets factored in or anticipated.

Nic  
Yeah, such a Yeah, and it's totally true. And I love that that happens and does on a daily basis, and it's much it's a really neat thing. Last but not least, where can people find you if they want to reach out?

Ted Boling 
Well, that Perkins Coie and Perkins P E R K I N S C O IE is the law firm. We got practitioners on the west coast, the East Coast we're kind of all over. Even in China, although I haven't I haven't worked in China. It's a great law firm with a lot of really seasoned me for practitioners like Bill Malley, who's the managing partner for the firm worldwide. So good bunch.

Nic
All right. Thank you Ted you so much. We really appreciate having you on.

Laura 
Yeah, always good time.

Ted Boling
Thanks. Alright have a good one. Bye.

[Outro]

Laura
That's our show. Thank you, Ted, so much for joining us today. Please be sure to check us out each and every Friday. And don't forget to subscribe, rate and review. Bye.

Nic
See you everybody.

Transcribed by https://otter.ai