Music Theater, Waters of the U.S., and Green House Gas Reporting Disclosures with Fred Wagner

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, our fabulous legal guru, Fred Wagner, Partner with Venable, LLP.,  is back for the 6th time! Tune in to hear our conversation about  Music Theater, Waters of the U.S., and Green House Gas Reporting Disclosures. Read his full bio below.

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

Showtimes:
2:36  Nic & Laura discuss the Expendables movie franchise
7:17  Interview with Fred Wagner starts
7:43  Music Theater
21:07  Waters of the U.S.
38:23   GHG reporting disclosures

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 Full 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 issu

Transcript

Transcripts are auto-transcribed

[Intro]

Nic 
Hello and Welcome to EPR with your favorite environmental enthusiast Nic and Laura. On today's episode, Laura and I discussed the Expendables movie franchise. We talked to Fred Wagner about music theater was the US and greenhouse gas reporting disclosures. As always, it's a wonderful interview really glad to have him back. And finally, case are monsters not wanted to put that out there to the world. They are terrifying, aggressive mean, and they will, they will come after your soul. So that's all I wanted to say. And yeah, it's

Laura
gonna be Friday. Yes, Friday is awesome. It's kind of the resident over here at the local pond.

Nic 
Okay, you during nursing season? Yeah, come talk to me. Friday goes for that. That is like over the head. They know that no, but yeah, it is gonna be nesting season pretty soon. So watch out. For another one you can see but the one you can't that's actually I think that's where the dressing part quote comes from? Is because it goes we'll issue the one you don't see is the one that's coming through your head just saying. All right. Music

[NAEP Event News]

Laura 
Okay, we have some exciting news coming up if you haven't heard already. EPR Nick and I are doing an AMA and asked me anything on Wednesday, April 12 at 8pm on our YouTube channel, which you can find at EPR podcast or www.youtube.com/at symbol APR podcast will be available for you to ask us any questions about career advice, your favorite pizza toppings or anything else to crosses your mind? Any people we've had on the show different kinds of jobs, whatever anything, mark your calendars and we'll see you there. Today's episode is sponsored by Venable LLP. Annabelle is one of the nation's leading law firms. edibles 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, federal encourages volunteer activities and professional environmental associations like this one. As reflected by Fred Wagner's membership on the NA P board of directors. Let's get to our segment.

[Nice & Laura discuss the Expendables franchise]

Nic 
Yeah, cuz I don't know like Fred's, you know, is obviously we talked about court cases and the law. The law speaking

Laura
to me Lagos to breaking the law breaking the law

Nic 
actually went to Judge Dredd. I went to Subash just alone. I said, just like he would and then I was like, You know what I just found out later. Oh, here's another thing. They're making an Expendables for. And I don't I haven't seen any of those movies. are terrible.

Unknown Speaker 
They're awesome. Fantastic. Yeah.

Nic 
I haven't Well, I mean, the new muscle of the dinosaur like, you know, like blowing up and we come on, we'll be talking about

Laura
Expendables is so much fun. They're just like, let's get a group of dudes together who are like the muscle bound Dum Dums over their day and just like, put them into an adventure together and shake it up. It's awesome.

Nic 
Hilarious. All right. Fine. I will watch. Oh, watch The Expendables. I'll find where it is. I watched the first one. See what if any

Laura
of them are listening or not really Dum Dums. Very smart. But

Nic 
they're playing characters who made

Laura
it meatheads? Do I love Mr. Sloane? I love John Claude I love all like they're all just so great and you know Schwarzenegger and just put them all together and just like see what happens and it's it's fantastic. Yeah, and they're I think all three of them are pretty good, too. It's not like, you know, they got worse. I'd

Nic 
rather just kind of good. Yeah, have you seen like this one like John Wick. Have you seen that? I've seen that was quite the same to me. It's just kind of like, I don't know, the acting and the first one was terrible. People were telling me how great it wasn't like the bad guy couldn't take seriously. I don't know Keanu Reeves is great, but

Laura
I don't know that will be just me up a puppy every time. Oh, yeah.

Nic 
What are we doing? Are we gonna stop doing that? Stop killing dogs in movies, please. I don't need that in my life. I think we've talked about that before. It's not Yeah,

Laura
nobody does. Yeah, like I had a friend who like refused to watch it just because of that. Yeah. And I was like, Well, you could just like, fast forward past it.

Nic 
Yeah. I mean, like he does have, there's a lot of vengeance related to segment but yeah.

Laura
I mean, I get it. That's a reason to murder everybody. Yeah, yes, exactly. It'll desert but they didn't need to show it to us.

Nic  
No, that's the thing. That's exactly why is this happening on screen? Like right? Yeah, something exterminator. There's so many times we're just like, oh, there's a dog here. It's gonna die. Great. Awesome. And you're just like a pet or not. There's nothing better happened.

Laura
Right? Like, be like coming. Don't do it. Yeah. Do it. You did it.

Nic 
Yeah. I don't know. Actually, my favorite like ridiculous clip of all time was disaster movie, like the day after tomorrow, or whatever it was. I

Laura
don't remember.

Nic 
Therefore, the actor is Jake Gyllenhaal. Right. And so this is I'm gonna just gonna give you like the first like five scenes. of the movie. This is why they're like, like climate, climate, weather weather climate climate wolves for no reason, climate, climate climate. I remember like they did this scene and like, look at these wolves. They're a pack and you're like, I swear to God, if these walls attack a single person later in this movie, I'm walking out and they did. I did that's probably drag it back to my seat but yeah, I genuinely got dragged back to your seat. Well, yeah, that's a you know you're with somebody and then they

Laura
they would they didn't protest with you.

Nic 
Now now. All right. If

Laurar 
I one man protest fail.

Nic 
Yeah. Yeah. And that was really it was just funny. I was just trying to be hilarious. When anything, was like, I knew this was gonna happen. Like, it's like, why don't you show it, you know, if they weren't gonna do it. So that was pretty funny. But that's what happens. You know? When, you know, there's like a weather event. And then like two days later, all the animals are rabid. Right. You understand that? They're gonna kill everything. They see, let alone people. Okay, I'm not sad. I

Laura
didn't watch this movie. It's bad.

Nic  
It's very bad.

Man. Okay, let's get to our interview.

[Interview with Fred Wagner starts]

Nic
Please. Welcome back to EPR. Today we have Fred Wagner of Venable LLP, our official legal correspondent back on the show. Great to see you again. Fred.

Fred Wagner 
It's great to be here. I'm glad I'm still on the payroll.

[Music Theater]

Nic 
Yeah, you know, it's been a great run, and we're happy to keep it going. But you know, we've got a lot of ground to cover today. I know there's a lot of stuff, you know, talking in court decisions on water, you know, we got greenhouse gases, all kinds of stuff, but we also I want to start with a conversation about musical theater. How has music theater influenced your career? What do you love about it?

Fred Wagner 
Well, I mean, my introduction to Broadway musical theater was not voluntary.

Nic 
Yeah.

Fred Wagner 
I'm not saying that so he forced me to do it. But in fifth grade I was cast as Oliver in this school production of Oliver that's a scene where as love if you remember that so very,

Nic 
yeah.

Fred Wagner 
That Oliver saying, and so I was just going about my business when you're learning the science, stuff like that. I didn't have any particular you know, motivation or connection to it. But for me what clicked was the day of the performance. My mom came during the day, and she brought some of her other girlfriends from the apartment building in Brooklyn, New York, and there's, there's like three or four of them in the front row. So there's my mom and Rhoda and so the I called all my neighbors and so I just, you know, I started my song. I wasn't particularly, you know, motivated. or fearful. It was just, it just needed a song and so, I'm in the middle of a song and where's love doesn't come from skies above. You know, it's friggin LinkedIn. And so I looked at it and I see all four of these women, my mom and her three girlfriends, just bawling their eyes out.

Nic 
Oh, my goodness, yeah.

Fred Wagner 
By continuing to sing the song. And I'm thinking to myself, gee, this is quite a reaction. I didn't even as a fifth grader. So why are these grownups cry? Over this song, and it was at that point in time. That I think you clicked with me if not intellectually, but certainly emotionally. That the whole notion of performance and stage can really, really has an impact on people. It really can, you know, send them to a different place. Yeah. And shortly thereafter, I asked my parents to if we didn't go to Broadway and see shows, and they did and we would wait online if they have Priceline and time squared it to get to the shows. And then I went to sleepaway camp is a preteen and I did the summer theater program there. Yeah, that's pretty good. And there were two people that were huge influences on my life. Shelly caplets was the co director and the director was following Steve's out on the rest of the piece he just passed away. And they really just changed my life. I mean, they they get a big part. I started doing stuff backstage in front of the stage. These really taught me some of the ins and outs of the specifics of performance, and it became a part of my life like, from that point on all the way through college and law school. I met my wife doing musical theater. My daughter went back to college, the same college I went to she was in the same musical theater troupe that I did in college. I mean, so it's been part of my existence forever. And to this day now when I go see shows or listen to music, you know, I think back to that, very, very first saw it and now I'm having those emotional reactions when of course, you know, I see performances and, and here's some of the songs. It's that important to me in terms of my psyche and how I think about life issues and whatnot, just takes me away. It's, it's just fantastic.

Nic 
Yeah, and it's a wonderful thing. And it's like, you know, everybody has different things too. But this has to influence your career too, right? Like how you even go about your practice and how you do your daily job. So how do you kind of connect those two things?

Fred Wagner 
Yes, you're so right. And the thing that I'd say is most obvious, is that because the art of performance is interactive, you're just not performing to the lights in the front of the stage. There's an audience there, you know, and you feed off an audience and you feel it audiences energy and things like that. And what I've learned from my experience in law, whether you're making a presentation to a court, the legislative committee and on the hill or something, or to a client or even making your pitch for work, you know, I've learned how to interact with my audience how to read my audience how to see what your what's flying, what's not to get a sense of the energy and you know, when I have to pick it up when I have to ease off and you know, all this kind of stuff, and it's all because the performance, practice and all the various shows I've been in I've directed shows, I think it's always an encounter that and to me, it served me really, really well. I was the Department of Justice. I convinced my supervisor to hire a consultant to talk at one of our retreats. And the topic was acting for lawyers Cold War and oil boy you should have seen the the objections from some of my colleagues, I can offer consulting you know, we're right. We're not acting you're what's the insinuation that you know, we don't really mean it, you know, we're just pretending after the presentation. I think they came around a little bit and they said Friday, you we understand that right saying that we are acting or actors in that sense, what you're saying is that in order to be persuasive, in one of these do our jobs effectively, we need to understand at least somewhat, the art of performance projecting, you know, emotion, all that all that kind of stuff. So, you know, I'm a strong proponent of it. I think that there's a you know, obviously a happy balance between performance art and legal persuasion but it's pretty evident to me that you can be the most eloquent the most intellectually advanced attorney in the world, but unless there's some semblance of understanding of how to portray and project those arguments in a way that has some element of that performance in it. You're not necessarily doing your job really well. Yeah. And so that it's really carried over to my, my practice quite a bit.

Nic  
Yeah. And so the way I like to think about it sometimes is like, it's not you can't fake emotion, but you can't ignore it either. And so if you do either of those two things, you miss out on people connecting with you, and it's exactly what you're talking about it that's exactly it. And then I love that that's where you get to use that in your day to day we all do. We just don't think about it that often. And I love that. So last time we talked about the differences or the relationships between you know, consultants and lawyers, now they work together. But I had another question. I guess, in a similar vein, when you talk about a project, and you know, it's going to be a contentious product, no matter what, and you know, that no matter what you decide, whether it's, you know, gives it will use a green energy example, whether it's going to be to you know, return on a power plant that had been shut down or to build new wind farms. I'm just using a random example. But no matter what happens, you're going to get sued. So you know, from the start, this is going to be a challenge. You're going to be involved because it's contentious. How do you even begin to navigate a project like that? How do you get to the end result you can't make everybody happy? But you want to make more people happy? Or do you just want to do get the project done? Like how do you kind of even approach it?

Fred Wagner 
The first thing that I do Nick is tell clients that the driving force behind how you continue to navigate your project approvals or your project analysis should not be the fact that you're going to get sued. Even with the reality that you know, you're going to get sued that should not be the driving force. Why? Because if that becomes your input, oh, we have to you know, protect ourselves from this challenge. And that becomes it. Then, the manner in which you go about your more routine business of your technical reviews, analyses and whatnot, becomes too defensive. It becomes too colored by you know what somebody's going to say about it. Now, it doesn't mean you ignore the fact that I'm not saying that you're just gonna go ahead and pretend nothing's out there. That's the reality. But I want you to approach your jobs as if you were going to do it, and explain it in the clearest terms possible to an audience so they understand exactly what you're doing. And that's to me, it's best practice anyhow. Right. So I tell the clients don't get consumed by the fact that there's going to be challenged, we understand that there's things that we can do. The second thing I tell them is because of that because you think there's a new challenge. And again, this is so mundane. If anything, you know what this does, this puts a higher premium on file management and document management is at the end of the day, right? What you're going to be defending is the work that you did and the work you do is reflected on paper. There are no witnesses that are going to testify in a trolley that it's going to be proof of what you did and how you do it. So keep track of those things carefully, you know, important meeting minutes, you know, memoranda summarizing discussions between the applicant and the agency. You when there's disagreements, how are those disagreements resolved and on what basis were they resolved and all that, you know, if you have it organized and thought out that way, then when a potential challenge happens? You're in a position to begin the defense, you know, clearly and logically you don't have to recreate any wheels because as you well know, some of these projects take years to progression. Yeah, sometimes that's sometimes all the time. People leave people move on. So the woman who did your wetlands delineation is off on another job and the man who did your biological assessment is now working for a different company or, you know, whatever I did the luxury of going back and speak to him, you know, thinking when you did this book, if you've done a good job and keeping the paperwork well and organized, it's kind of all there. So number one, don't get consumed by it. Number two, organize your thoughts and your paperwork so that you're ready to defend it. And the last piece of advice thick is, you know, do a little bit of what we just talked about before do a little bit. And the acting in this case is pretend you're the plaintiff. Yeah. Put yourself in the shoes of a plaintiff. What do they think? What are they worried about? What buttons are they going to push and that little bit of role playing if you will? As you go through your work helps you anticipate some of the things that you'll have to defend later on? Yeah, and it doesn't take a lot of creativity doesn't take a lot of, you know, pushing the envelope. But what it does is say, you know, hey, wait a minute, if we think we're absolutely right here, you know, we think we're on all fours. We're doing a great job. But if somebody were going to poke holes in this thing that we're writing, yeah. What do you think it would be? What would somebody else say? Yeah, about that. And if you take just a moment, not be consumed by it, not be driven by it. But if you take a moment at those key junctures in our process and thinking what somebody else think about us, what criticism might we be subjected to? Then you can anticipate even work into your record things to respond to those sorts of things before they become massive problems for your team. So those are some of the things I tell people and then finally I tried to tell portray confidence. Yeah, you know, you know, like Stuart's smiling you're smart enough. You're good enough. And by God, you're good looking. You're good. You're gonna come out of this. All right. Yeah, you know, we're gonna win and have that confidence of purpose. And then, at the end, before litigation happens, you'll be ready to go.

Nic 
Yeah, you know, it's funny, I think I know the answer this question already. But is it better to know you're gonna get sued in the beginning, then at the end? Is it easier for you, or is it kind of just,

Fred Wagner 
it's a little bit easier? I think, you know, because as the lawyer it makes my job just that much easier to help prepare a client for what eventually is going to happen. I I've had it both ways, you know, the phone rings and they weren't expecting a challenge and all sudden they challenged and, you know, they feel jolted by that right and then your loop playing catch up a little bit. Whereas in the other instance, when you know, we're anticipating a challenge from the beginning, you can have that mindset, you can do a lot of preparation and be ready to go. So, look, the short answer is you hope you never get sued, right? Nobody likes it. Nobody likes to go through with it. But if you know and it's gonna be that, you know, that controversial sort of project. Yeah, it's a little bit of an advantage to have us be able to be partnering with you as the lawyers along the way.

[Waters of the U.S.]

Nic  
Yeah, I'm actually great. Now, it makes a lot of sense. So, yeah, thank you again for that. And, you know, I think we can dive into the meat of our discussion today. So we joke we've been joking since you started that there's not that much going on when you know, clearly it's obviously not true. But I mean, my goodness, we've had a very busy you know, few months. So let's start with waters in the US right. So last time you were on we were talking about proposed rules and now we have rules with litigation laminate ruling coming up, kind of keep us up to date on where we are with waters the US and where it's going. To last

Fred Wagner 
we talked we mentioned us the argument the US Supreme Court back in October, Sackett litigation and they had over two hours of oral argument over the meaning of waters, the United States. Very, very first argument of the new term was very exciting. A couple of things became apparent, is that I think there's a great deal of frustration on behalf of the panel like are we here again, again,

Nic  
I know

Fred Wagner 
we really doing this and, you know, are we really talking again about the meaning of the word of Jason? At one point during the argument, I think was Clarence Thomas, say, can we stop talking about adjacent plates? It was really funny. But what came up in that argument deck was the Solicitor General. The last promise the court that the rule is going to be out before the end of the year, because the court has said this in front of us. I understand that this rulemaking process is ongoing. What's up with that United States? And the steps are rules that by the end of the year, Your Honor, right well when did the rule come out? December 30.

Nic 
Yeah, yeah.

Fred Wagner  
You know, so it's nothing like telling the Supreme Court that rules coming up by the end of the year, and you can imagine all the folks of EPA they're gonna go great. You know, and so they they managed to do it. And it came up first on the EPA and four websites and then officially published in the Federal Register just a little bit later, but in the role and the supporting documents is up there massive. Yeah, the rule itself is extremely long and when you click it on the EPA website, you will find at least a dozen supporting documents underlying the rationale on the rule. There's economic analysis, there's the technical analysis, there's the response to comments and then the response to comments is like 10 or 12 chapters, you know, and so all in all, it's, it's well over 1000 pages, maybe well over 1500 pages of analysis, dealing with wars United States, and my impression is that this administration wants to do just the opposite. Of what happened in the Trump administration, which is when the Trump administration reverted back to make it you know, too simple, you know, making the rule closer to the navigability rule that Scalia wanted, you know, in my panelists, if you can float a boat got it, then it's worth and they didn't have in the objective here. They didn't have a lot in the way of a technical support for it. They just basically said, here's what we think. The court says that we opt for this, right? This administration said, we want to do something different. I'll explain what that is in a minute. But we are going to substantiate it out the ones who write and they did yeah. And they did. So you can agree with it. You can disagree. One thing you can't dispute is that there's a rationale for just about everything. And so that's the first thing that I know. The second thing that they tried to do is again, despite it being very lengthy, right, massive, they tried to give the impression that really what we're doing here is reverting back to a paradigm a model of enforcement that's largely been in place for years, as modified slightly by Supreme Court. Review. Yeah. So again, overgeneralizing. The pitch from the agency says, Hey, nothing to see here. Because if you're used to doing your jurisdictional determinations if you're used to the permitting requirements from the late 1980s through the present time you know, with the slight modification of the Rapanos, significant effort Nexus test, right, and you're going to be happy, because pretty much we're doing that. Again, they say that in 1500 pages, right. But I think that's the message that they're trying to send it was clear that they felt that the Trump rule went too far it moves the needle too far away from a waters that they felt deserve protection. And so they wanted to move that needle back but they didn't move the needle back too far the other way beyond the technical assessments for wetlands for tributaries, or streams, etc. From the late 1980s Gotcha. So that's, you know, when you talk to 10 people that have reviewed the rule so far, and they say, you know, we keep on keepin on, wow, you know, which is, you know, not what you're reading in the media.

Nic  
No, no, it's not at all. So the reaction

Fred Wagner 
to it is what you always hear Yeah, it's overreach, and everything's a water a puddle over this. I mean, that that's not the case. I mean, I think objectively, it's not the case. And when you speak to, you know, my technical friends, such as yourself and others who do this work day in and day out, their impression is that if we generally keep to what we've been doing, we're going to be okay, now, this doesn't stop litigation. Of course. The rule was published shortly thereafter, I'm like, but then days, two cases were filed in Texas, challenging the rule one by a bunch of industry coalition's associations led by the farm farming industry, other from the state, challenging the rule on a whole variety of grounds. And then just three days ago, another lawsuit was filed in the great state of North Dakota. This spearheaded by a group of you know, dozen or so state attorneys general, right. Challenging the rule and the basis for challenge and reward are the same sort of things we've heard in the past. The rule is impermissibly vague. You don't know what a WOTUS is and say see there and that's not fair. Especially if there's civil and criminal law enforcement. They are you that to the extent that they've defined it, they've been usurped state authority over control over waters and state boundaries. They have raised the major questions doctrine, which we've talked about in the past. Yeah, I don't think that's going to fly because if, if the framework does nothing, it defines what you should be regulating. In terms of water pollution and things like that. So I think that's a bad. That's gonna be a good argument for folks here this time around, and a variety of other grounds as well. But the most important thing for this discussion, I guess, Nick, is that in Texas, they've already moved for an injunction. Oh, wow. A nationwide injunction to prevent the rule from taking effect, which it would in the middle of March, if nothing else happened. And I think the court has already set a deadline and is going to try and get arguments by by that time to see if they could rule on whether the rules allowed to take effect or whether there'll be a slight delay or what not. The jurisdiction they got in Texas is a court that deemed the rule last time round, seven favorable judge of favorable draw, so the odds are favoring some delay in the effective date of the rule. Even if the judge declined to do a full nationwide injunction, there could be some sort of delay, but at least while the court gets to consider the rule on the merits, that very well could happen. And then the other complication is somewhere in the next month or two months. The Supreme Court solution that ruling and Sackett

Nic 
Yes, that's exactly what I'm going to ask you to

Fred Wagner 
join the fray and they're gonna join right and so what is that going to mean in terms of how far they are gonna go? Are they gonna undermine, you know, entirely come with the agencies are trying to do now or something less and the instinct that I have and my colleagues who follow us closely, is that for the folks who think that there's five or more votes on the Supreme Court, to completely undermine the authority of the EPA and the Army Corps to regulate waters, the United States and wetlands and stuff like that, they're gonna be sadly disappointed. I don't think it's gonna happen. I just don't think it's gonna happen. My sense is it's gonna be much more narrow ruling interest trying to address the specific circumstances that confronted the Sacketts and their property. Have some blowback on on certain aspects of the rule, as any proposed rule does talk about adjacency and you know, the elbow connected to the hip bone which is connected to the bone and you know, that type of thing with respect to waters but my
_____________________

Fred Wagner  
My sense is that the courts gonna issue a much more narrow ruling. Even if they will favor the stock gets and the odds are given the composition of the court, that's probably the case but an overarching ruling tearing apart the authority of the agencies in general. I don't think that's gonna happen. So some effect the rule, I think, but but not so dramatic that litigation in Texas in North Dakota and there'll be others can proceed in a way to determine the weather the agency's rule was adequate and weather will meet the standards of the Administrative Procedure Act. But I would say the odds are strong that the effective date is going to pass and a courts can say let's put this on hold for a little bit. Let's let's wait. Give me a chance to rule on the merits. Let's give everybody a chance to argue this and brief this so I don't have to rush and I don't think they'll be back and up in court either. For the reasons I said earlier, because I think they believe they are regulating waters right now. Pretty much the way they would be regulated and if this rule took effect, and if there are any other challenges out there, they'll be on a case by case basis on a particular permit denial of a permanent or what have you in a particular jurisdiction discrimination. Right. I think agencies are fine with that. You know, if that happens on a one off basis, that's fine. So that's what's going on. Again, people ready for the final definitive word on Mars. It had states so

Nic 
there are not

Fred Wagner 
gonna happen either, but I will they hold prediction, which is, you know, so long as Chief Justice Roberts is around. This is gonna be the last WOTUS matter before the Supreme Court for a long, long time. I don't think they want to see this again. They're gonna give whatever guidance they can. They're gonna leave it to the agencies and they're gonna let the lower courts dispose of individual challenges on specific issues. I don't think they want to dive into this. This would be the fourth case. Yeah, it's already incredible. 30 years what you have to repeat this again. So whatever litigation is going to be on this is going to be done in district courts, appellate courts, I I like to know the Supreme Court again, and not for my natural lifetime.

Nic 
It is an incredible thing because it really has gone back and forth so many different times. And it's just, it has to be at some point like, you know, why keep doing it. We have guidance we have you know, issuance Is there ever going to be a point where we'll be actually able to get you know what, what we have is is good enough and people will always want to push on some certain things, but we have to agree it at some point. I hope that we have at least enough to move forward.

Fred Wagner  
Yeah, it's where's the intersection between policy and politics? Right. Right. When you read the complaints, the business associations states on behalf of landowners and private property owners around the country, they make the argument that hey, you're complying with this laws expensive that stop and if you know there's uncertainty, and we don't know, if something's you know, water or the United States on our property in Orlando, we have to spend the time to pay you Nick. That's expensive. That takes time and that's not fair. It needs to be something that could be that can be workable. Right. And so that's the sort of politics of it. The reality though is how often does that happen? Yeah, often is it really happened where it's truly a shrug your shoulders throw up your hands kind of factual situation where they just don't know. Really, all that much of there are certain things that there are certain realities that create regulatory nightmares for certain industries, and I get it and they want to eliminate that uncertainty. They want to eliminate that cost as much as they can because it just interferes with the regular operation of business. The reality I think, might be that when we get to a point we determine how often is this really resulting in something that people are, you know, at loggerheads over? You know, really, or are we getting to a point where inevitably, like with any regulatory program, you know, there are going to be disputes over the application of the law? Yeah. Can we endure a regime where that happens? Some can avoid it, but not anywhere near for the vast majority of cases. And if we reached that point, then perhaps Perhaps, you know, we can get to the place that you described, which is just good enough. And you know, and I think that remains to be seen. I think that sort of the politics of it. If there are governors and attorneys general who feel that there's still points to be scored, you know, in pursuit of the argument that this is going regulatory overreach and what's the effective role of the government? I think those cases will still be brought. But I think time if this rule is given a chance to be implemented my sense is that time will show that the quantity the sheer quantity of serious disputes and controversies of work really is a bonus. It's gonna get narrower and smaller, and it's going to become livable. And that's when I think people can say, okay, we're never going to get 100% agreement, but at least we get to a place where there's more certainty the expectations are out there. And the range of cases where there's a real dispute, or as small as as they possibly can be. And my sense is, that's kind of where the courts may end up as well, which is they're gonna say, like, 40 years of this expectation, there's gonna be one magic solution. And the last thing you want is, you know, another flip but another administration comes in a different party, they rewrite the rule again, you know, that's, that's gonna make nobody happy. So let's move forward. Let's resolve that if we have individual disputes, we'll resolve them, see if it's more or less, and then take it from there. But yeah, it's been here since I graduated law school, I still think it's gonna take another year or two to get to that point that can really well, Miguel, finalizing the rule and litigating the rule. Hearing from the Supreme Court. Certainly the rest of this year, probably needs a little bit of next year.

Nic 
All right. I mean, I knew I knew it, but you know, it's just there's always a little bit of hope that this is the end. You know, and you also there's, you did a deep dive on the ruling with a webinar with an AP as part of webinars series, and I wanted to give you a chance to talk a little bit about that series as well and what the other two and I will say it's free for NADP members. If you are a member, you can download and watch these rules. And then as part of a package for those who are not where you can purchase all three webinars. So we have to say we already talked about what is what are the other two webinars that you're going to be working on? Yeah, we're

Fred Wagner 
really happy to talking about this. We're really we're really thrilled in any EP to be able to offer this series. The concept is this is that things happen so quick, that there's no one perfect discussion of these issues. But it's best to get out there quickly to get in front of our members, our community and have a you know, open discussion about some of these things. And so we created this three webinar series. The first one was on motors the next one's gonna be on the face to see who rules you know, they're coming out we think pretty soon as early as the end of March, beginning of April. And then obviously also on the stack, and the ideas, we do a quick dive into them. We get you know, takes from experts who know about the rules or about judicial rulings and get it out there toward members as quick as possible. And so far, it's been a big success. We had a great turnout for the WOTUS rule in January. And we all have the same for these other two and then hopefully that'll be a model moving forward for the rest of the year. And so the following year, Nick where we try to anticipate the a little bit of crystal ball readers, try to figure out what's going to be hot, and then commit to the members that will do a quickie discussion of those developments whenever they hit. So that's what we're doing the rest of the year.

[GHG reporting disclosures]

Nic  
Yeah, it's gonna be pretty exciting. I can really if you said like phase two is coming I noticed you rumblings is that is they're reviewing it. So it's really that'd be really cool to see. And I'm really excited. You know, we've talked a lot about what that's going to look like and what's going to be in it so it'll be really cool to do that dive and we'll promote it on the show as well. So more to come on that but you know, with the water quality isn't the only thing going on right now. We also have quite a bit going on with greenhouse gases. And we've been following a lot of those challenges with you as well. So we talked about the SEC proposed rulemaking last time and it dropped almost a month I think after you hopped on the show. So can you walk us through the updated reporting requirements and anything in there surprise you?

Fred Wagner  
Well, there's there was a major developments since that time when another group of federal agencies joined the party. And they issued their own rule on disclosure and reporting. And that's the trio The General Services Administration Department events and NASA. Yeah, and they helped contribute to the Federal Acquisition Regulations. And they made they should oppose rule one, the comment period just recently closed that for all federal contractors, they too, would have to separately disclose greenhouse gas emissions as and and substantiate through review from a third party, their own plans, and this would be incorporated and be part of the Federal Acquisition Regulations. So if you do contract with the federal government, you would have to do this because well, yeah, in some ways, the rule went beyond the SEC Rule by compelling federal contractors to have these certified science based targets.

Nic 
And genuinely we are talking about them internally here, Dawson quite a bit. So what does that mean? Right and yeah, what does it mean exactly right.

Fred Wagner 
The entity that they put in the role is this internationally based third party is the sbti that has some international members, United Nations and things like that. And they are the ones that you get validated. You submit your plans, this entity and they validate the plan, and under the GSA proposal, you would have to show that you've submitted it to the sbti to get validate.

Nic  
Yeah, that's a little bit controversial. Yeah, I can imagine

Fred Wagner 
as you can imagine that no, people like that. Going to a third party and everybody that third party, fairly strong international component to it, to be kind of like a gatekeeper about whether you can get federal contracts or not. So there was another group of agencies that joined in with more proposals on reporting and disclosure requirements. The SEC extended its comment period on its rule. Back in the fall, they closed again and open, reopen and closed again in November. And according to the regulatory agenda that they publish their thinking about their rule coming out in the spring, their final rule. There's been some leaking so far, that's been reported in The Wall Street Journal, with an indication that some of the thresholds in the SEC Rule about when you would have to report these things, you know, maybe modified somewhat, and perhaps even the timing of which, you know, when you have to respect could be modified as rich in part. So we'll see that soon enough. I think the SEC final rule will be the GSA DoD Final Rule. I think it's ahead of that. And then just like lotus, you could probably hold your breath. And by the time you you have to breathe again. There'll be a complaint filed.

Nic 
And so where does that going to end up? How are we going to are we going to get to a place where we will have the reporting and I guess maybe when will we actually start doing that kind of disclosure?

Fred Wagner 
The difference with WOTUS and the ESG rules coming out of the SEC and GSA is that the what's gonna be litigated in the bladder in those other agencies is that the ability and the jurisdiction and the authority of those agencies to do this at all right, right in lotus, we know that there's authority to issue permits. The question is overwhelmed with ESG reporting and can you knew that that is sec is a part of your mission, your GSA, can you make this part of the qualifications for a federal contractor to prove that a contractor is responsible to have a science based story for greenhouse gas emissions? Can you do that even, you know, and so that's what's going to be litigated. So unlike the WOTUS rule, we're not going to know for a while whether the agencies can advance this process until the courts say, Yeah, this is something that is or isn't in your jurisdiction to require these sorts of things. And so there's going to be you know, this this notion of Koba facial challenge under the law facially and he can even get past go and collect $200 Before you do this thing, as opposed to an ad apply and challenge to the rule, which is, you know, somebody submits their reporting, and then the SEC says it's inadequate, right, that's an as applied challenge to dealing with the rule of complying with the rule. What we're talking about is facially can agency. So my prediction is that that's going to take a year if the final SEC Rule comes up the spray, it's going to take a solid year to get past that and through the appeals. So the final rule will have deadlines that will give those dates but I doubt that they will kick in because the litigation will be pending immediately. And it's gonna take a while for the courts to figure out if the whole premise of the reporting and disclosure is within the jurisdiction of these agencies. So I think it's wise for companies to prepare for it. I think in many instances, the company's already doing it. Yeah, yeah. Now they're doing it on their own. They're doing it because it's part of their own compliance program. They're doing it because they they have businesses and operations in Europe or in Asia, where they're doing and they're requiring some of these things already. So it's, it's going to move forward to doing it because maybe even California, would go ahead and pass some federal government and, you know, California by itself was the sixth largest economy in the world. So I think companies will be wise not to sort of put this off indefinitely, because I think it's some form of it is going to be required and you'll continue to be required. But the SEC and GSA rules themselves, probably will take effect for quite a while.

Nic  
Yeah. Which makes sense. And but I like your point to this kind of take companies, it may take a while, but companies should still look into this anyway. I mean, if we get to a point where they're like, Okay, go and we don't get in then. That's not great. I would say I would argue

Fred Wagner 
right and the other thing is we're not seeing praise, and we're kind of private enforcement. Of these issues. You might have read recently there were, you know, shareholder challenges, representations made by companies about their representations about carbon reductions. And their commitments and, you know, claims of greenwashing in their publicity and their representations. And so, you know, it's not just, you know, from the governmental perspective, it's also from the private sector and shareholders, you know, moving to make sure that their companies that they've invested in are doing this work legitimately fairly, honestly, and so forth, and that that's going to happen as well. So ESG is here to stay, I think. And the question is, can we kind of how does it become incorporated into government activity, you know, across the board, and we know that this administration's commitment is, you know, you hear this phrase all the time, they, you know, all of government approach, right? There's certainly an all of government approach to climate and GHG. And so it's not surprising to see disparate agencies like the SEC and the GSA do this. The outcome is what we're still going to say.

Nic 
Yeah. And then, you know, more to come on that for sure. Because it's, again, one of the most interesting times I think, in environmental policy in this country is the past couple of years. It's just been fantastic to see so do you have anything on the horizon for us that we haven't talked about? Litigation standpoint that maybe we'll be looking for the next time you come on?

Fred Wagner  
Oh, yeah, for sure. I think we will continue to see a lot of activity in the section 401 Water Quality Certification. We're on the rulemaking and litigation over it. It is just a classic case of federalism, the role in the States, you know, when they perform their work quality certifications, the authority that they have the time by which they have to act on this and then the sort of relationship between it and federal authority in the Clean Water Act. So there's going to be a lot of activity under Section 401 That also then affects the other work of our members as they prepare the document seeking water quality certifications from states around the country. So that's an area where I think there's gonna be a lot of developments. And then the other area and we've talked about this a lot in our podcast before, but we may in the future, and that is what is EPA going to do with the P FOSS chemicals.

Nic  
Oh, yeah, no, yeah.

Fred Wagner 
How are they going to move forward? You know, there's talk of you know, expanding the list of those chemicals as a talk of including P FOSS. In terms of super fun, cleanups and identification of hazards and Superfund sites and in water and drinking water and water regulation as well. And there's gonna be a lot of movement on that, again, from a technical perspective, you know, how do firms or the country deal with the reports of these chemicals, how they deal with a very sophisticated technical work on gauging what's in drinking water, what's in a hazardous waste site and so forth. I mean, this is really going to be kind of the next generation of regulatory compliance for chemicals and again, it may not matter if EPA issued a final rule because there can be citizen students over this. There could be toxic tort suits, and certainly states individual states can move forward with regulations in this area as well. So to me, that's kind of the next generation of environmental protection above climate obviously, that's the number one but you know, the regulation and the litigation where P FOSS is the next thing that we probably should talk about as much as it's complicated and and frustrating. Uncertainty, but you can't avoid it. You can't avoid the scope of the potential challenges out there, under those chemicals in the various regimes, whether it's for crack, whether it's your Superfund site cleanups, whether it's citizen students over you know, water contamination, it's just going to come up over and over again.

Nic 
Yeah, and there's not the chemicals definitely not going away. We know that by definition. That's exactly

Fred Wagner 
what I want to change my name. I want to be a forever lawyer. There you go. It'll be forever lawyer. That'd be great.

Nic 
Yeah, exactly. Exactly. Yeah. Yeah, now yeah, that's perfect. And it's always such a pleasure, Fred. I know we talked a lot about legal stuff right now. But, you know, I want to end on another lighthearted note here. We talked last time about drive to survive as well and that's coming back on Netflix. By the time this comes out. It will be we'll all be diving into the seasons past and it's great. It's a lot of fun to watch has anything else caught your fancy? Well, Netflix

Fred Wagner 
is trying to get. They've expanded the Tractor Supply model to the PGA Tour. So for golf fans, there's a new series that's dropped, and it's called full swing. Full Swing. Yeah, it tries to see model behind the scenes, insights into the pros, how they prepare their ups, their downs, their travails, and you know, doesn't have the same I don't know international panache, Formula One, you know, the, the international drivers and the different cultures. It doesn't have that feel to it yet. But it certainly does have the same kind of feel about what it takes to be, you know, a professional at the highest level of a sport and the emotional and physical strain it puts on people on episode I watched last night and I think often is you know, I've taught but, you know, one of the best problems of the last decade a guy named Brooks Kafka for major tournaments in 16 and 17, and has been in a terrible slump. Since that time, it has a one and they did this whole episode and he's here and talking crushing his own skills questioning is you know, am I good enough to be out here? Am I good enough to compete and you know, God shell to hear somebody at that level and talking about, you know, how they compete and how they prepare. Well, first of all makes me feel a little bit better. As a mid level handicapper, I know I stink. And maybe I should just resolve that I'm gonna stink forever. When you hear somebody like Kappa, questioning his own, you know, self worth anymore. It's kind of fascinating. So, if you read the drag to survive the DD and a more genteel way, full swing series should be right up your alley.

Nic 
It was fantastic. And yeah, you know, it's funny. I think the you hit it, like, no pun intended, being a professional athlete. So much goes into it. It's so much work. It's so much pain, suffering, both from a physical and mental standpoint. And golf is the most brutally unfair sport. There is. It's just, you're like, I could do this 100 times and I will be the way I want. And one time out of 100 It's going somewhere else. And it's just an incredible thing. It's it's really cool. So I'm excited. To check it out. I haven't seen it yet. But I'm excited to check it out. So

Fred Wagner 
maybe next year, Netflix will start a behind the scenes of pickleball. There we go. Yeah. So I don't know what you would call it up. Yeah. Brian to survive.

Nic 
Yeah, that's great. Yeah, it's coming soon. 2024 Look out for it. Alright, Fred, is there anything else you want to talk about before we let you go?

Fred Wagner 
No, it's great seeing you guys and I hope to see as many listeners out there at the annual symposium, any piece gonna happen, Phoenix may be great fetch up for people and I hope we can do another live session there.

Nic 
Yeah, absolutely. Looking forward to a friend.

Fred Wagner
Alright, bye.

[Outro]

Nic
Alright, that's our show. Thank you, Fred, for joining us today. Please be sure to check us out each and every Friday. Don't forget to subscribe, rate and review. See you everybody.

Laura
Bye.

Transcribed by https://otter.ai