NEPA, the Future of the Supreme Court, and the Cherry Blossom Festival 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, we talk with Fred Wagner, partner with Venable, LLP about NEPA, the Future of the Supreme Court, and the Cherry Blossom Festival.   Read his full bio below.

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

Showtimes:
1:54  Nic & Laura talk about burnout
9:48  Interview starts
10:09  Cherry Blossom Festival
21:35  NEPA
34:11  Future of the Supreme Court

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

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

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

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

Music Credits
Intro: Givin Me Eyes by

Transcript

Nic  
and that MusicNic  
Hello and welcome to EPRs your favorite environmental enthusiast Nick and Laura. On today's episode, Laura and I discuss burnout. We have Fred Wagner back on the show to talk about NEPA, the future the Supreme Court and the cherry blossom festival. And finally, speaking of cherry blossoms, the Yoshino or cherry blossom trees were a gift from Tokyo Mayor Yuko Ozaki in 1912. The Yoshino trees are the most common variety of carry tree however, there are over 430 species of territories. For example, wild cherry blossoms average about 25 to 50 feet night, wild black cherry trees can reach over 80 feet tall which is absolutely wild about that. Wow, that's cool. That music

Laura  
All right, American professionals day is April 15. environmental professionals includes social and environmental scientists, engineers and planners and Public and Environmental Health Specialists among others. We ask that you please show your thanks virtually to our environmental professionals. On this day. Here's some ideas for how you could show appreciation for all that they do. Share this blog on your social media accounts or send this blog to other organizations where environmental professionals work. Share the work of somebody you know on social media and tag them using hashtag environmental professionals day or thank you EPS. Today's episode is sponsored. By Venable LLP Venable is one of the nation's leading law firms. Venables management reflects a commitment to diversity and inclusion through a broad category of hiring, training and educational activities. 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 as reflected by Fred Weiner's membership on the NAACP board of directors. Let's get to our segment

Nic  
burnout it's a it's an interesting thing. I we've talked about it on the show a little bit and there's like it's almost like any kind of relationship that you have with anyone, right? Everything is in flows, right? And some of what you know, can be frustrating and irritating is beyond your control. And some of it is in your control. And so I think there's you know, even the kind of burnout that you have is important to discuss like, is it stuff beyond your control or stuff you can control for both? So I don't know like, that's where I kind of where I start thinking about it. It's like what can I control? What am I able to, you know, minimize, like I have a certain set of hours that I have to work to get paid. And then beyond that is you know, me being a kind and generous person. And do I have to do that. There's like this anxiety and impulse and stress and that feels like you have to, but it doesn't mean that you do and sometimes like I've caught myself being like hey, I need a break. I do not have to work an extra 10 hours this week. I can take the time that I would normally need for myself. And it's hard to do hard to do. But that's one of the things that I can control. So that's what I when I think of burnout, that's one of the things I try to remind myself you know, I'm in control of some of it. Not all of it, but some. So I don't know. What do you think? Well, I

Laura  
mean, how do you distinguish burnout from just everyday stress? Oh, gosh, that's

Nic  
a good question. So I mean, there's lots of different stuff that happens every day, right? Stress is good and bad. Stress is still stressed. It's all your body counts at the same, right? So if you have like events going on, good or bad, you know, marriages, definitely families, whatever they are, those things are going to impact you and what's going on around you. And being aware of that is extremely important. And you might have to might not feel comfortable talking about it with your supervisor. But if you're concerned about your work performance, because you're distracted doesn't mean that I think and you trust your employer and that's something you can do. It's a challenge sometimes because like you kind of like can get used to the stress where you kind of feel like, Oh, this is just how things are, so I'm just gonna have to deal with it. And you don't necessarily, it's not necessarily true, but you're making it true. And thinking that this is the way things are. They don't have to be that way. And I think a lot of times we kind of pretend or we just forget that some of the stress we make on our own and some of it we don't put the stuff we make on our own we can influence

Laura  
I'm putting on spot on purpose. I

Nic  
know. I know. I feel like I rambled. I was like, oh gosh, I'm talking to one. But you know, I think it's a really big challenge I think lots of employers all over the country are dealing with that very specific thing. And you know, I think the are in the workforce at this point in our work life balances. I hear that all the time, in a way that I feel like I didn't when I was starting.

Laura  
I was gonna say something. I don't think that when I was first working then that was a phrase that was thrown around too often.

Nic  
Okay, so Okay, yeah, that was put you on the spot. So all right. Tell me what work life balance means. What are we dealing with when we talk?

Laura  
Oh, my favorite subjects because I think that balance people like to think that means equal or something. Equal work happiness at work and equal happiness at home. But that's not at all a balance is I mean, I always use the example of like a tightrope walker. Yeah, because they're not steady walking across that like there are sometimes tipping to one side and then sometimes to being to another side. If you put a bag of groceries on one hand, they're gonna tip hard to the other side to make sure they don't fall over and put a baby in another hand. You know, and then you put a pile of books into the backpack like you it's a lot harder to balance when you're carrying all these low winds, right? Like, the more things you're trying to juggle, the harder that becomes, but then you also have to think about like this. So this analogy or metaphor, or whatever it is, is for me, it's like what what are your priorities? So what things could you put down to help you balance better? Yeah, what things you're not gonna put the kid down, right? I can maybe put your job down, but maybe you were gonna get a different job that didn't weigh so hard in one direction or the other. So like, for me balance sometimes balance is like tipping real hard on the family side, and sometimes it's tipping real hard on the work side. But it's coming back to a center at some point. If you're never coming back to a center ever, so it's like why weekends are so important for some people because I think that's when they come back to feeling you know, like, Okay, I was tipped over to a worksite so hard all week. Now I'm tipping back the other way. But when you're constantly fighting the gravity from one side of this extreme metaphor, then they're, you know, that's when you burn out, right? Because you're just like, tired of holding and lifting this thing on the one side, so I think finding ways to reshift things around can help LC carry load for a while.

Nic  
Ask for help. Yeah. Yeah.

Laura  
Those things can help with the whole work life balance, avoiding burnout thing. Yeah.

Nic  
I think a lot of times people it's like if you change jobs, or even like even at the same company, if you just do something different, but you still see the same amount of stress, right? And then you have to ask yourself, is it the job? Or is it me? Am I doing this to myself? Am I putting the pressure on school? I have to get this done. Why? Well, someone told me to Okay, but why? So Well, I was What do you mean, why, you know, and it's like, you don't have to do the things that you say we have to do and I don't want to say people shouldn't work. I'm just saying it's one of those things that if you need balance, you know, because your personal life is tipping really hard. You're like, Hey, I've got to take care of some stuff. You know, I've got to deal with some personal things. You got to say what it is just be like, Hey, I got some personal stuff going on. I've got to deal with. I'm gonna be you know for the next month or so I got to be, you know, cut back some of my hours, my extra time. I just don't have the bandwidth for it. And you know, that's a scary thing. You know, because you think, Oh, that means you're not committed. You're not interested.

Laura  
Yeah. I think sometimes the burnout is it's a sign right? It's a wake up call from your brain or your body that's like, hey, something has to give here. So if you're feeling burned out, you've got examined it and figuring out what what that is. Yeah.

Nic  
And you know, I think the you know, we spend a lot of time on examining yourself side of things, but when you have when you do have you know, people that you are working for, like clients who are difficult, right, that's different, you know, and sometimes it's, well, we get a new client, right, or we, you know, we let that client go. If it's really bad, and everyone's experiencing the same kind of thing. Sometimes it's just personality conflicts so you can move people around and have different people work with that person. But if that person is, you know, truly awful, then the change has to come, you know, internally to and that's a really hard decision for a company to make, when it's, you know, if it's a large client, you know, if it's like, if it's somebody who's giving you like, you know, $25 like you're not gonna be like, oh, you know, I and you're a jerk. Yeah, I don't need that. Thanks. But if it's like, you know, your biggest client, it's harder, and it doesn't mean you can't do it. It just means it takes longer.

Laura  
One of my favorite things on this podcast is when you and I are talking because watching reactions,

Nic  
I know I know. That's why I laughed back there and it didn't make any sense. I'm laughing because it was like gonna take us

Laura  
live it'll just be saying like, your watch them.

Nic  
It's too funny. Yeah. Yeah, sounds good. Welcome back to EPR. Today, we have Fred Wagner of Venable LLP and our official environmental Legal Correspondent back on the show a friend. Good to see you. Good

Fred Wagner  
to see you. It's it's a new year a little bit late, but I'm glad to be back on the show.

Nic  
Yeah, absolutely. And it's a fun time in the DC area. So what's going on there? What's new with you? In the DC area?

Fred Wagner  
Well, it this time of year at DC it's all about the cherry blossoms, right? It's all about the cherry blossom starting in about February. The Washington Post starts printing its prediction of when the blossoms are going to hit peak bloom. And you know, they updated like every week depending on the weather in the forecast. And it's important because the blossoms are timed to be in peak during the cherry blossom festival.

Nic  
Right right.

Fred Wagner  
So it isn't just out of curiosity. There's a thing there you want to have the festival when all blues are out if possible. Of course. Of course, what's happening is that between climate change and all the rest, the balloons are coming out earlier and earlier and earlier. And sure enough, that's exactly what happened this year. So starting about two weeks ago, the posting I don't know we're starting to see the buds and there's this very detailed website on the national park service where they go through each of the stages of a cherry blossom bloom. And then they have a chart saying for the past 30 years when each phase of the Bloom has been reached. And then what does that mean for peak bloom? I mean, it's this whole thing. So we have a couple of really nice 70 degree days, you know, and in early March like I never used to have, and the breaking news of the Washington Post was not a Trump trial or Israeli war thing, no better headlines which trust me in terms of Banner headlines, I'd rather have a better headlines like that. Yeah, but all the other stuff, but it was big news. Because he came a full 10 days before they had predicted EEG and a solid week before the festival is even beginning. So everybody was following that and so I said to Mary, my my my wife said let's get down there. So just as this past week at the literally at the crack of dawn, we drove down to beat the crowds and we're there at sunrise for the cherry blossoms. And it was spectacular. It was a great year for the blossoms, but really early so those of you are friends with me on Facebook, you'll go and you'll see I changed my picture to show you know the cherry blossoms picture with me and my wife and we're fully decked out in winter gear because it was pretty cold morning it was pretty cold. But the balloons were just spectacular. And so it's it's a really big deal. People are you know, scoring down today because they expect some wind and rain tomorrow so it's see balloons now or forever hold your balloon peace.

Nic  
Yeah, you know, it's so funny. You say that like my brother's not an environmental person but he lives in Arlington, Virginia. He's really those really close. They just have their very first kid that month old at this point. And he told me the exact same thing you'd like to blooms early this year. It is a big deal. It's

Fred Wagner  
a big deal. And when you go down there like we did at the crack of dawn, it is a remarkable scene so it's not as crowded as like during the middle of the day, but it is already very crowded. Yeah. And in amongst the crowd, our brides and grooms in their full bride and groom regalia, including like their gown and remember it was 38 degrees that way, but they're good, but darn it, they're gonna get out there and they're gonna take photos and they're gonna get the cherry blossoms and then go to the car and warm up I guess. But they were all over the title basin. It was great. And the other big news about the blossoms actually has a big environmental component to it, which is after Delaine for over a decade or more. The National Park Service is finally starting its renovation of the title basin retaining wall area now those who've been to DC know the beautiful tile base and circular water right around the Jefferson Memorial now right adjacent to the Martin Luther King Memorial and the FDR Memorial, but the sidewalk and their table has been needing repair for years and they put it off put it off. Finally they have the money and literally a couple of weeks after the festival is over. They're starting the project. Yeah and what that means is that we're losing that permanently and I'll get to that 150 of the cherry trees.

Nic  
That's like most of them. That's

Fred Wagner  
about half of them. Okay, yeah. Wow. Yeah. And so they have to be taken out for the project.

Nic  
I mean, yeah, yeah.

Fred Wagner  
So just so you know, for the audience, you know, your environmental professionals. We arrived at an AEP board call the other day and I mentioned that and, you know, I thought it'd be a little chitchat before the meeting started and you know, get a little Oh, yeah, that's nice to see the cherry trees. No, it was. It was like detailed information about how to refer the trees come back. They grew in two to three years and they're different geniuses in the tree and their health is fine. And like for five minutes on this phone call there was like, at least half of the people that had specific detailed information about how the trees grow where the trees go, don't worry about the trees read, they'll be back in no time. It's like, I wasn't worried. I just I didn't realize that everybody on this call. So much. That's funny. So another benefit of working in the environmental professional field is that you can have more than cocktail talk about the cherry blossoms.

Nic  
Yeah, sure. That's what we love about NADP. That's a lot of fun. And

Fred Wagner  
then the last thing about the cherry blossoms is that a DC thing? Not only do we know the trees and it's it's a tradition we go down every year but the name some of the trees because they're particularly famous trees. And one of the trees is nicknamed stumpy. stumpy because he's just a stop. He has no branches, but there are blossoms coming out of stumpy. And yeah, and he's like the most famous cherry tree. Unfortunately, stumpy is about to meet his demise as part of this renovation project. But yes, only Washington DC Do you see the cover? The Washington Post, you know, Congress negotiating opening the government, Benjamin Netanyahu and Biden in a dispute? And stumpy, like, front page news is what you see. So it's another cherry blossom piece of trivia for DC aficionados. That's

Nic  
great. Well, I don't allow that he's, we're losing them. But that's yeah, I mean, I can say it really is genuinely a very big deal to a lot of people. So yeah, I love it. Thank you for bringing that up. And you know, it's a little seamless segue into some of what I want to talk about with you today. And actually, you know, you just sparked a question for me. So you talked about the continuing resolution, right? I think this is our third continuing resolution of the year. Last year, we avoided this the year before we did not can you talk to you like is this just what we have to deal with going forward? Is it gonna keep being like this? Because it kind of, you know, for what I do, for example, we're working with the Department of Defense and you know, Homeland Security. It delays a lot of things, and it makes us scrambled at the end of the fiscal year. So is that something that we just have to deal with?

Fred Wagner  
Yeah, I think so for the foreseeable future. I mean, first of all, it's a product of the current congress to where the margins for the majority are the smallest, possibly in history, and so there's, they have a great deal of difficulty doing anything. Nevermind something is as important as passing a budget and a substantial minority of the majority are fiscal hawks, and are more prone to use the negotiations over the budget to push specific policy agendas. And that's becoming more and more common. So the folks now that are big on you know, border security, for example. Put in a lot of writers and additional specific provisions on the budget to deal with that in particular, well, that creates a split like almost immediately and then you know, trying to get a majority to pass you know, when you have a solid you know, fill in the blank 2030 You know, members who are going to be Hardline, right, and suddenly things make it harder and harder to the most recent continuing resolution, I think, just passed today, the Senate should pass it and avoid a shutdown. So I'm sorry, you'll still be employed next week. So you're you won't get vacation next week. But they did it under a special procedural rule where they needed a two thirds majority in the House. So that made it even harder, even with Democratic support because he didn't know how many Republicans were going to be there. It's a totally different day in Washington and maybe used to be you know, you don't have a vote until you knew what the vote was gonna be. Right. Right. You didn't even start it because until you knew and like for this vote, and most recent car, they took the vote and then they literally had to do the math. So the numbers are up on the board you knew voted yes, you voted no. But they didn't know if it passed, because they didn't know how many people voted. And then they had to do the math and see if it was two thirds, and then compare that to the actual vote. They literally didn't know before they voted. So the short answer is yes. It's gonna be that way for a while. My sense is, is that you know if the different scenarios election I know we're talking about that today, there's there's some possibility in certain certain scenarios where this could be avoided in the future. So if the house flips and the White House stays the same, I think there's going to be a very strong push to do a two full two year type budget cycle like they shouldn't be doing all along. But if there's a split and the house, White House are different parties, and the margin continues to be this close, even if the house flips. I think it's gonna continue. It's just the importance of the budget votes. It has been elevated, so much so that any small number of members from either you know, the hard right or the hard left of the Democratic and Republican parties easily can use that process to advance specific policy agendas and gum up the works. And you know, unless there's a major change in the margin becomes 2030 or something like that, for one party or the other. I do think it's going to continue because this becomes the vehicle by which things that otherwise members can't get through ordinary, you know, order regular order, as they say, not through legislation. They try to attack through the budget. So, yeah, you're gonna see more and more and I'm just like you, you know, you get on conference calls. And the guy says, Well, if we're not shut down, you'll have comments by Tuesday. Yeah, right. Right. Yeah, or some or something like that. And I think that's going to be common in your lexicon for a while more. Yeah.

Nic  
and has been for a bit we were almost done. The last year wasn't like that, if that makes any kind of sense. You know, that's yeah, that's just what we expect. It just kind of funny and, you know, you mentioned legislation and stuff like that, like they have an election year coming up and you've been our predictor for a while now. And you've I think, looking back your success rate, I think is almost 100%. If if it's not 100 It's like 99. So, you know, one of the things you predicted is that we'd have the same exact running mates in this election that we had in the last and for better or worse. That's what we've got. So one of the things that there's a lot of implications we have for environmental professionals through either case through either either scenario, but maybe the one thing we can do is kind of walk through both. So if we do have a second Trump term or a second Biden term, you know, the implications of those are pretty, you know, you can kind of guess what they are, but let's actually talk through them. So, we start with, you know, Trump, getting back into office. What changes from an environmental perspective?

Fred Wagner  
Yeah, no, I think it's safe to say that, you know, year in year out, there's always an expectation that environmental practice would demonstrate quite a big shift to defending which party wins. So that's almost a given right, given some of the sort of the natural positions that the parties have taken over the years. But for the most part, it's certainly the beginning of my career. And so recently, those differences could kind of happen on the margins. When you think about it, really. I mean, there were some things that absolutely changed in and out. But for the most part, there was some predictability. And why is that because it's the mantra that you've probably heard your whole career and I've heard is that the one thing that folks who are responsible for compliance with environmental law, hate the most is uncertainty. All they crave they crave. Just tell me what the rules are, and I'll deal with, right, that's what they want. And that carries some weight because, yeah, people are on different sides. of different pieces of legislation or regulation. Of course they are, but at the end of the day, they'd much rather have predictability, then the pendulum swinging back and forth. The difference in this year, and then I'll get to your question about what to expect in a second Trump term is that the notion of working on the margins is history. We're totally in the pendulum swing world. And if there is a second Trump term, again, important for your listeners and important for my firm Ethics Council. This is not a political statement whatsoever. This is just objective truth, that there would be a huge pendulum swing on all things environmental policy, environmental law, environmental regulation, climate, if there's a second Trump term, the dynamics that we talked about over the years neck and now it's been years I was at the beginning of the Trump term. First Trump term was absolutely marked by an effort to rollback regulation, deregulate, provide greater flexibility on any number of things, obviously, the changes in the NEPA regulations, etc. Well, what happened? They didn't do so well. The changes that they tried putting in experience a remarkable failure rate from a legal perspective, so they make these changes. The usual parties on the other side, the Sierra Club's the intricacies of the groups. challenge those changes. And in a remarkable percentage of the cases, the environmental NGOs won, because the administration had not gone through the appropriate steps and process to get all these things through. And I'm not just saying just a little bit more. I'm talking about a remarkable percentage more they last they didn't get get it done. And I think even in terms of some of the personnel I mean, at the beginning of the administration, the folks that you had the helm of some of the key agencies, not superstars in terms of getting things done. Now, ironically, near the end, of the Trump administration, you saw things change, and I think you're more reflective of what you would see in a second term. So for example, the difference between a Scott Pruitt and a wheeler at EPA, you know, between the zenki and Bernhardt, and interior right again, this is not a political commentary. This is just a factual commentary. But the gentleman or they were gentleman bookcases, who took over those roles, from the beginning of the Trump term who took over was near the end of the Trump term, were far more proficient right. In terms of doing their job, they understood the bureaucracy. They understood the standards, they understood the law better, or was a lawyer, you know, and they were able to do more near the end of the administration than they were at the beginning, even though they had all the energy and add the whole Congress at the beginning of the administration. There was again, an objective statement, there was a competence factor. With some of the initial folks that got better over time, in a second Trump term, they're going to be starting with the folks that are closer to the Wheelers and the bird hearts of the world. The people that are not only sympathetic with a particular point of view, of course, you know, that that you expect to be the case, but also much more confident in getting it done. Right. So I think that's going to be a major change, just you know, from day to day of practice, so don't worry, you know, Bill fun for around a while and it will get I think that they understand people understand what the interpretation is of their view of administrative agencies, and what they should or shouldn't be doing and they're going to do it and they're going to do it quickly and aggressively and with a lot of the judicial appointments from the last term, you know, they've got a fighting chance to see it through whereas the last time, the manner in which they did it, the judiciary hadn't really changed as enough for them and they suffered a lot of defeat. So that's one big thing that's kind of out there. The other thing that we could absolutely expect is you know, major shifts, if not 180 degree reversal in anything related to climate and climate policy. And it goes beyond just whether they're in or out of the Paris Accords and stuff like that, you know, you can guarantee that they'll withdraw from that, but it's more specific that there's a whole little AI infrastructure in place for electrification, decarbonization, the funding of these programs, and so on and so forth. So whether you're talking about the licensing and permitting of wind farms, solar farms, whether you're talking about the expenditures for Evie charging, whether you're talking about the Evie charging you know, instead of under the inflation Reduction Act or something, all those things are going to be a play. Now you say wait a minute, Congress passed that they just can't switch it without Congress acting? And the answer to that is No, they can't switch at five with control of the bureaucracy. They can do a lot of things to slow walk those kinds of policies in a way that they feel is more consistent with their worldview. So for example, a project that you're very familiar with the Hudson tunnel project between New York New Jersey, the environmental impact statement for that project, sat in Secretary child's desk for four years. It was done. It was largely done, and it Saturdays for years and they wouldn't sign the final Record of Decision change or administration that was signed and the projects moving forward. You can easily anticipate and when you fill in the blank, windfarm approvals, solar approvals and transit projects, anything that may not be favored by the folks that would populate a Trump administration. There will be efforts to slow walk those things. And again, there's ways to try to prompt action it's very difficult it's difficult to do that. If you know full well of all the administrative obstacles that you have to cross in the best of days or nevermind when somebody's purposely putting, you know, a wheelbarrow in front of you and then a colon and then a hurdle. All those things
___________
Fred Wagner  
In the best of days, nevermind when somebody's purposefully putting, you know, a wheelbarrow in front of you and then a colon and then a hurdle yummy. You do all the things you have to jump through and over and I think that's gonna happen a lot. And then the other thing that's gonna happen and the reason that this is a particularly crazy time in Washington, DC, is that the current administration is racing to put out all its major rulemaking initiatives sometime before I mean, some people are saying April one, so people are saying April 15, but no later than April 15. Why is that? That's because of the sinkhole, the Congressional Review Act, the CRA within 60 days of the end of a Congress 60 legislative days in the hands of Congress, Congress, by simple majority can reverse regulations issued by an agency during that time. At the beginning of the Trump administration, CRA had rarely been used. The Congress under that administration, again was a Republican Congress. If you recall, I think they applied the CRA over 40 times Yeah, that's right. Yeah. Remember that? Yeah, to reverse a whole slew of regulations. And we went over that. That'll happen again. If Congress flips and the Senate is more much more likely to flip them the house but all this is in play. And so the administration currently says, we don't want to screw with that. So let's get all these major initiatives out before, again, what's his legislative day and who's counting the calendar and you know, your guess is as good as mine, because Congress is hardly in session anymore. But in the worst case scenario, they're contemplating April 15 as that date and anything after that would be subject to the CRA. So they're racing to get all these things out. Now. They could be challenged in court NEC, and they are and we'll talk about that too, like the SEC. Greenhouse gas disclosure rule was challenged by 30 different parties and eight different circuit courts around the country. You know, but that'll still happen, but at least it wouldn't be a congressional majority flip. Right. And so, again, a new Trump administration would aggressively look at any of the regulations that came out, like, right in this time period, you know, in the spring of 2024. To see how it could either either stop it, reverse it again, they have to be more careful than they were the first time around, you know, and trying to do that but they will they will try to do it. The ruler came out two days ago Nick on a car efficiencies, you know, the Eevee standards and all the rest, the administration made a concerted effort to, you know, elongated period by which the Compliance would be in effect, making it not as onerous and in fact, some industry folks said thank you. But, you know, we think we can do that, you know, changing the standards to maybe you know, include more hybrids or more plug in hybrids as part of the calculation all that was an answer to industry that said, Wait a minute, it's not just EVs. We've always different ways to find compliance to reduce emissions and administration ensure will give you more time and it will include all those things in the calculations and many people said, Okay, we think we could do that. It may not matter if Congress flips and the administration flips, even that may say, No, we're not going to do that. We interpret that as a mandate. And so we're going to try to change that. The SEC dramatically changed its greenhouse gas reporting rule from the proposed rule that they totally excluded scope three emissions, right. So remember, scope one, what you meant scope to the power, they the emissions from the power that you generate, to do your stuff. scope three, everything else? Yeah. Downstream upstream emissions. That was in the initial rule. That's out of the SEC Final Rule. And a lot of people are saying that's, that's good. We have to worry about that. But matter 28 for parties filed suit a different circuits and a new SEO new sec and new administration will surely And don't call me Shirley will surely withdraw that rule, right. So that's what we're talking about. So when I say we're out of the working on the margins world, and we're the pendulum world, you know, wild swings of the pendulum is what we would see in those examples. And many more. Yeah.

Nic  
Yeah. And you know, it's interesting before I talk about like a Biden administration, and what that would look like next term there. You've mentioned a few of the initiatives that they're pushing out in this by the administration, if we can recap it a bit. What have you seen, it's worth talking and we know, for example, phase two draft rules are out there and we'd hoped they had been finalized. By the end of the year,

Fred Wagner  
which didn't have literally any day. I'm expecting it by April one. Okay,

Nic  
that was wondering, like do that. Does that make it in the initiatives? And then what else in those initiatives do you expect to see?

Fred Wagner  
Yeah, I mean, it'd be a combination of finalizing initiatives and then seeing what the courts are going to do about some of the initiatives that have already been challenged. So you know, the the biggies that we've talked about in the past was the United States. They EPA court issued a very minor clarification role last year after the second decision, the cases that had been pending but stayed until the Supreme Court did its thing all pop back to life. And they're being brief right now. And I suspect that there's gonna be released this summer on the legitimacy of the December 2023 Full rule, in addition to the very small minor clarification rule from last summer. So that's not a regulatory thing anymore, but that's the courts passing on what the administration did in that crucially important area. The SEC Rule is another huge one, that I don't think it'd be resolved right away because I think it's it takes some time to brief it and all that kind of stuff, but it's taken on added importance because of California's actions on its own to demand that kind of reporting. So now you have an inconsistency between the SEC in California and then Nevermind the EU, so that's going to transpire. I think the clean air rules are the sort of the biggest ones that they're trying to rush out. Now. The powerplant rule, the Eevee rule and all that kind of stuff, those are the ones that I think were most important to the CPA, the other areas where you're gonna see a lot of action and our environmental justice. I don't think they're gonna do formal regulations, but in terms of like funding, and advancing certain programs, and answering, you know, petitions on behalf of stakeholders who are claiming that certain states are not running their permit programs appropriately. visa vie, environmental justice and title six, you're gonna see a lot of that out of the Department of the Interior. Now you're starting to see a rush of agreements. And rulings on endangered species and habitat designation. There was a huge one on the famous one the sage grouse just recently, again, that that's going to be they're going to try to rush that out. So at least there's something out there again, it'll be challenged. But you know, all these areas, Nick I think, yeah, there's gonna be this rush, and people are going to catch their breath around mid April, beginning of May and say, Okay, where are we now? I would not expect a whole bunch more rulemaking after that time. But then all the action is going to be with me and my brother. It's all going to be in court. It's going to be in court. And that's the other thing that's just kind of remarkable in terms of what we're seeing now. Almost automatically, you name the issue. Bonus, air THD disclosure, just name any issue. Almost immediately a coalition of red states anger or blue states, depending on the issue, go in together and file litigation, right. The industry folks it's like we used to be the ones you know, my clients so we were the ones that would go out and do stuff right no more because you have these strong coalition's of States led by West Virginia, led by Louisiana, but others Texas, who almost immediately put together challenges to all these different rules. So you're gonna have not only the rules that are pending, but you're gonna have a dozen or more major pieces of litigation that are going to be pending throughout the summer, into the fall beyond the election. And then whoever wins and takes office in January, they're going to have to deal with that. So you say what happens if the Biden administration runs? Well, the Biden administration wins. Hey, we're back. You go back in and you know, so young dust off your desk, maybe there's some new nameplates because people will flip but you say just keep on keepin on. Know why? Because let's say the SEC case went to the Eighth Circuit. They literally do a lottery. Can you believe it? That's how they pick the court. They put balls in a jar and they pick up the court that's going to litigate the case when there's multiple districts that get the case. It's hysterical, but they certainly got the case. Yeah, so the Biden demonstration says, Great, we're going to be doing this the SEC is gonna go for finally and then you could have the Eighth Circuit in the spring of 2025 saying Not so fast, right? You are arbitrary and capricious. So even if because it's a very conservative circuit, very conservative circuit. So even if the Biden ministration wins you're gonna win this this dynamic with okay, we're just gonna keep on keepin on and the courts are gonna say that's a fast, right, potentially. So, again, there's, it's almost like a three dimensional pendulum back, you know, you used to go back and forth. You know, just depending on who's who's in office, but it's even worse than that. Because it's the pendulum about who's in office administratively and layered on top of that the pendulum of which circuit courts which district courts are reviewing these regulations, depending on where the cases were filed. And so it becomes even more difficult to sort of advance these initiatives. So you would think that if the Biden ministration goes into a second term, you know, it'll be even stronger you know, everything they'll be doing well, they'll feel liberated, right? And go on steroids. I don't know if that's true. I think a lot of the dynamic that we saw with these final rules, for example, may actually continue in a second term, which is there's some realization that unless there's some coalition of the wheeling on some of these initiatives, it just guarantees this pushback and guarantees delay because you just don't know what the courts are going to do. But if you have some glimmer of, yeah, we could live with this and we could deal with it. You know, even the courts sense that right. And it'll be a greater opportunity for them to advance some of their their proposals and their policies. But you know, it's just like, buckle up. How do you plan for compliance circa 2025? You dumped unless you want to have like two different plans and then see what happens in the end you chocolate out the window, and I don't know many clients that like to do that. So very difficult period to try to counsel folks on what to anticipate, but I'm telling you, the swing of this particular pendulum will be as wide as I think you've ever seen. Oh, wow.

Nic  
Yeah. Wow. So okay, one of the things that I meant to ask you about earlier and it is a perfect, perfect moment for it like that. So that was I think the Judicial Conference, please help me if I'm wrong here. was like, Okay, we're not going to do you can't just pick your judge anymore. Oh, yeah. Right. So it's changed slightly. I don't know my question to you is, I know it changes slightly, but you still get to go to a conservative district and find nine of the 10 judges are fine. So maybe you get the 10th. Judge, but most of the time, you won't does that actually, how big a change was that? Was it a big deal or not a big deal?

Fred Wagner  
I think it's only a medium deal. I think the Judicial Conference and I think the leaders of the conference, recognize that the legitimate, just like the Supreme Court is struggling that and we'll talk about the Supreme Court in a minute. Just like the Supreme Court is worried about its own legitimacy. Right. You know, we had 50 years of precedent now poof, it's gone because guess what new judges you know, even just Justice Roberts and has spoken very candidly about, you know, I worry about what people think about the court if they just think that it's just a matter who's sitting there and not, you know, a fair your review of the law and how we lose the public support. And that's what's been looking like, well, the Judicial Conference felt the same way about forum shopping. And they were saying, Look, if it's so bloody obvious, that you're not only going to, you know, a district court in Texas, but you're going to that particular judge in Texas to get a ruling and he and there's no necessarily nexus to the whole issue except that guy. People lose faith in judicial system, they just do. And so what they tried to do is say, Look, you know, I'm not saying that, you know, there's venue in Texas, there's venue in Texas, but you shouldn't be so pigeon holing it that only one person didn't get the case. So I think you hit it on the head, which is luck, you know, if you're gonna be filing the Fifth Circuit, or you're filing in Texas, in the district courts or whatever, you know, you have a much better chance of getting, you know, a sympathetic judge if you're a conservative. I mean, that's why the Sierra Club filed, it's challenged the FCC petition in DC, because they found a better chance than in the circuit. So I think it's only a medium deal, because I think they were compelled to do something because it was just so obvious what was happening. And it was, you know, reducing people's faith in the court systems like Oh, of course stretch that's got the king Citrix Jones Scriptcase What do you expect? Well, that's good. If you're a judge. You know, if you're in the Judge Business, and you have a cocktail party, and they say I judge doesn't matter, because we know what's gonna happen because judge Smith has a case. That's bad for the judging. Business, because they are living on you know, trying to make neutral views of the blog based on the facts and but if it becomes so clear what's going to happen and the rulings are tortured, and all that kind of stuff. So it's a medium deal because they didn't eliminate all opportunities for forum shopping, you can still form shop, but they eliminated the so obvious Munzer can only go to one person.

Nic  
So I mean, let's talk about a Supreme Court thing. You can say the court has been, as predicted, done a lot of the things that we said it would do based on who's now sitting there so what is on their list this year? So we still have Chevron dock deference, which we've talked about before, but what else is on their list? What else are we expecting?

Fred Wagner  
Well, what's going on, Nick? And again, it's now become pretty clear that it's not just one issue administrative law. It's the entire sort of spectrum of important legal issues that affect administrative law. So the chevron cases will come out, you know, probably at the end of June, because they're very big. They'll do well, the last couple of decisions that the court issues and based on the arguments there's no doubt in anyone's mind that the principle of Chevron deference will be either eliminated or severely constrained. And what that means is, again, it's a further onus on Congress, to be specific and clear because the Chevron deference said, you know, if there's something ambiguous in the statute, we rely on the expertise of the agency to get anything done. So for example, there's nothing in Tosca that says P Foz. Where's where's the word P. FAS and Tosca and so a big regulation comes out. The challenge goes, Wait a minute, you know, Congress didn't say anything. How can we just assume that's what they meant. And the chevron principle will if it goes away, the notion is that the agencies will be restricted from just saying, well look at it, this makes sense. You know, it's toxic substances. It's brought authority under the law is, you know, a new substance of concern that we know about so it just fits right. And the answer is we not necessarily not necessarily, but it isn't just the chevron principle. It's the chevron principle in conjunction with the major questions doctrine from West Virginia EPA, which says anything that's, you know, kind of really a big deal. You know, we can't just go at Congress has to speak. So those are two sides of the same coin neck on one. It's like, it's it's really bags in a billion dollars of impact in the economy. So Congress, you better step in Chevron. You know, Congress, we know you wrote 1000 Page statute but quite clear enough on everything. So we're gonna have to wait. Same idea, right. What can the agency do or not do without that clear, again, in the minds of certain parties, the clearest of direction, and then there was a third case, it gets less publicity about the statute limitations, to file a challenge. Under the Administrative Procedure Act. So a party who is adversely affected by a particular regulation in 2020. For a case that's under consideration right now by the court, even if that regulation was finalized in 2024 years ago, under the theory before the court right now, that party adversely affected today could still challenge the regulation on its face. That's remarkable. Yeah. Now, when you might say, well, that's kind of unfair, you know, new company gets formed and they have to deal with regulation. That's unfair. They have no recourse. It's terrible. But But then the question we have is, when is the regulation ever final, like, when should we ever rely on this, but but that's in front of the court. So everything related to how an administrative agency works, is in play. Yeah. And it's gonna get harder and harder and harder to regulate. Even in the ordinary course. It's even harder and harder to respond to, in federal emergency kind of, you know, the type of situations you know, like theories on fire, and it's regulated right. Now, it's gonna get harder and harder to deal with that. In the ordinary course. If you're an agency. It just is and the Supreme Court is going to severely change how agencies function all agencies on every topic, not just environmental law in the future. So it's a sea change. It's by far the most important time and administrative law since I graduated law school. And it's going to force a reckoning on how agencies deal with not just rulemaking but how they enforce existing rules.

Nic  
Yeah, yeah. So from a practical standpoint, like how does that change, like the day to day work, because like, you know, I try to wrap my brain around. It's like, what do we do? Just do what we've been doing when we have this pendulum swing? We do things slightly differently. You know, we had cumulative effects for example, a quote unquote, went away then came back, but the course of that was still pretty much the same. You know, advising your client said, yeah, it's gone, but it's not really gone. Is it more like that, or is it more like okay, this is New Order. There's new business, we are no longer going to be able to do what we were doing. We have to do a new thing.

Fred Wagner  
I think it's more of a ladder. And here's why. Because any one particular company or client dealing with any of these regulations, doesn't control the field. Right? So if there's an entity out there, that feels that the same regulation that you and your client say I do, but this is what we talked about earlier, you have some certainty, right? I can do this. I know what to do at least, and I'm going to do it and it's not particularly onerous, perhaps and I can get it done. And I know how it works. Let me just do it. They may feel that way. But there will certainly be members of the same industry, across the country in a small office and you don't know. We're going to object and they're going to sue and they're going to challenge and they're going to use the major questions doctrine, and they're gonna use a revised Chevron principle to say the agency overstepped its bounds. They're going to use the statute limitations there. And remember that regulation that we needed 30 years ago, let's challenge a doubt. Right, you know, and that's gonna happen. And so, it's almost a worst case scenario, I hate to say, which is just like you have with voters right now, we have like 27 states that are under an injunction and 23 that are not so the 2015 rule applies in half the country in the 20s, blah, blah, blah, replies another half of the country. That's gonna happen more and more. And so you're not only gonna have to know okay, I'm gonna look at the CFR and see what's going on in Washington DC, you're gonna have to look up what's going on in my particular district court, my particular circuit, you know, and God forbid, you're a company that operates across state lines and you're this is going to happen more and more and I wish I could be more optimistic and in some ways, as a lawyer, you know, some orders, we'll be clicking their heels, you know, it's like, full employment forever. Forever. Yeah. You know, but that's going to be I fear, that's going to be the trend, which is, even if a substantial majority of our particular industry says look, we can live with this definition, it's workable, we have a sense, let's just move on with certainty. You know, that there's gonna be another percentage of the industry for this small percentage, we don't know who's gonna challenge that even so, and then, you know, put things all up for grabs, you know, once again, and I think that's what's gonna happen, and it's gonna happen on the 30,000 foot level, which is your challenge to a regulatory program and as regulations were applied, it will apply on the 5000 level to a particular enforcement action and particular prosecution or civil fines. You're very specific it'll have them both length. And then it's gonna be up to the your companies and consultants to try to track it and understand it and give clients the best advice they can in a particular place. It's gonna be up to you know, me and my colleagues to try to assess the legal risk. If a company wants to, you know, do something a little bit different or what have you. And it's gonna be harder and harder to keep track of it all. Because it's going to take me gosh, a decade or more for the New World. Post, West Virginia EPA post Chevron deference, you know, a few specializations to shake out to see how it's all gonna play out. Of course, it's not going to happen right away. It's going to be over a generation. And eventually, I think it will shake out a little bit. I think the legislature have been a little bit more adaptive, giving clear directions when they want to do something, you know that that again, that that pendulum will change, whether it be able to do something on Capitol Hill that not that soon, but it will inevitably bill, but

Nic  
it will take time. Yeah, yeah. industry will say hey, you got to do better. And I'm hoping at least that that's what will happen. The industry will push some of that forward. But maybe that's my optimism.

Fred Wagner  
Well, it's it's not just optimism. I think it's your student of history. You know, and things. Shake out that way a little bit. And I think I gave a speech the other day on environmental justice and the impact of the students for fair admissions versus Harvard case. You know, pushing back on everything related to diversity and all that kind of stuff. Yeah, I think my line was every action has a reaction. Every action has a reaction. And now we're living in that world in the Civil Rights diversity world. We're living with the reaction to, you know, admissions policies and diversity policies and dei and all that kind of stuff. And so now we're dealing with all that, and you know, what's going to happen? There's going to be reaction to that. Right, right. And then there's going to it's going to shake out how these things are going to happen. So the same will be true in our field. But I do believe pretty strongly that the import of what we're going to hear from the Supreme Court about how administrative agencies work is going to require a rethinking of a lot, and it's not going to happen right away. Yeah,

Nic  
I think it's very well said and so, like I say, it just means that you will not get to talk more about plenty of things.

Fred Wagner  
There's plenty. And like I say, I hope I stressed that none of these statements are meant to be, you know, one way or the other politically. It's literally as I think you've presented it, which is so what happens regardless what happens, how do we deal with all this? You know, and I hope people take it for what it's, you know, that was the spirit in which all that was intended.

Nic  
Oh, yeah. And I feel the same way too. And I think it's so interesting. Some of some of this is going to happen, regardless of who's in office, and some of the way we have to change is going to happen, no matter what and I think Nevermind the market.

Fred Wagner  
The free market may still rule you know, oh, we're gonna slow down the rollout of Evie chargers, well, maybe not if 50% of the vehicles being sold. Before you know it are like that. Consumers are going to demand regulations be damned.

Nic  
Yeah. And they'll get Bill. Yep. Well, it's a we're close to time.

Fred Wagner  
I learned to put in a pitch if I could, near the end of time that got you know, again, we're still working on to rob our friends at any up here. But you know, I'm going to be at the annual meeting coming up in May in Minnesota. I think you will be too and I hope to see a lot of folks there. But I am it's close. I'm almost done putting together a panel that if you're thinking about coming to the meeting, maybe you should think about signing up because I'm gonna have a panel that's should have the leadership of the federal permitting Council, Council on Environmental Quality and the Advisory Council on Historic Preservation on the stage at the same time, and if they can work out, and again, I'm crossing my fingers and toes, but if it could work out, I think it'd be the first time that any piece ever had that combination of folks up on the stage at the same time. So, you know, it'd be a great candid discussion about permitting, permitting reform, getting projects done project delivery under the new regime of, you know, new laws and regulations, you know, trying to figure out what works, advice for people in the field who are dealing with these issues day in a day out. So, for those of you who were thinking about signing up, haven't quite yet decided, hopefully that will come through on top of all the other excellent programming and presentations that they'll be my our case law update will be there again. So, you know, please I hope people will think about Minnesota and look for announcements on the website, if we confirm that session. And

Nic  
it's gonna be incredible. I can say I'm super excited about that. That was really, really cool to see. And I love that that's happening. So yeah, thank you again, Fred, as always, and we've got to get you at least one wrong prediction out here. So I know the NCAA Tournament is going on and we've got, you know, to

Fred Wagner  
pick Wagner to go the whole way. So already there's a prediction. They weren't one game.

Nic  
Hey, that's great. That's great. He's not perfect, folks. There you go. Thank you so much, Fred. Really enjoyed it. All right. As always, 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 everybody ie

Transcribed by https://otter.ai