Updates on NEPA, the IAIA Conference in Italy, and Cumulative Effects with Ted Boling

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

On today’s episode, we talk with Ted Boling, Partner at Perkins Coie LLP about Updates on NEPA, the IAIA Conference in Italy, and Cumulative Effects.  Read his full bio below.

Special thanks to our sponsor for this episode.  Perkins Coie is a leading global law firm, dedicated to helping the world’s most innovative companies solve the legal and business challenges of tomorrow. Learn more about our work and values at https://perkinscoie.com/

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

Guest Bio:
Ted advises clients on renewable energy and transmission projects, resource development, transportation, and related infrastructure development, building on more than 30 years of high-level public service.

Ted Boling’s experience includes deep involvement in the environmental review and authorization of federal infrastructure projects, environmental mitigation and conservation programs, and leadership of the comprehensive revision of CEQ’s National Environmental Policy Act (NEPA) regulations. He served on the White House Council on Environmental Quality (CEQ), in the U.S. Department of the Interior (DOI), and in the U.S. Department of Justice (DOJ). 

Ted’s work at CEQ included the development of the National Ocean Policy, CEQ’s climate change guidance, and the use of environmental management systems in environmental impact assessment. Ted advised on the establishment of numerous national monuments, including the first marine national monuments in the United States and the largest marine protected areas in the world. He represented CEQ as a member of the Advisory Council on Historic Preservation, the board of directors of the Udall Foundation, and the U.S. delegation to negotiations under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. He also assisted in briefing three cases before the Supreme Court of the United States.

At DOI, Ted served as a deputy solicitor and counselor to the assistant secretaries for land and minerals management and for fish and wildlife and parks. Ted handled matters involving energy development on the outer continental shelf and the fast-track process for solar and wind energy projects on public lands. 

At DOJ, Ted was a senior trial attorney and litigated significant cases involving NEPA, endangered species, marine mammals, wetland protections, and management of public lands. He was involved in litigation concerning the Northwest Forest Plan, National Forest management decisions, and Federal Transit Administration decisions and U.S.

Transcript

Hello and welcome to EPR with your favorite environmental enthusiasts, Nick and Laura. On today's episode, I talk about career pathing. We talked to Ted Bolling to get updates on the NEPA landscape, his trip to Italy for the IAIA conference, and cumulative effects. And finally, Potato chips were invented in 1853 by George Speck in Saratoga, New York. They were originally called crunch potato slices, which I thought was delightful. And weirdly they stopped producing them in during World War II because they were considered non-essential food items, which, as a salt boy, I find deeply offensive. But there you go, that is what we've got for you this week. 

Hit that music. 

NAEP's 2025 annual conference and trading symposium will occur on April 28th through May 1st in Charleston, South Carolina. We're also hosting a free resume building workshop and speed networking session for students and emerging professionals. The resume building workshop will start at 2 p.m. and is designed to guide participants through the essential elements of an impactful resume, focusing on tailoring content to align with career goals and industry standards. At 3:30, we will conduct a speed career event, which is designed to inspire and connect early professionals and students interested in environmental careers. This roundtable style event allows mentees to engage directly with career professionals in environmental fields, gaining valuable insights into these mentors' backgrounds, certifications, and what a typical day in the life looks like. For more information, please check out www.NAEP.org.

Let's get to our segment.

There's lots of different ways to do a career. There's, there's never ever even one like specific route. Like everybody can go in lots of different directions and I don't know, I think I've thought, I don't know if I've talked about this on the show before, tell me, but like the main thing that I always say is like there's the 3 elements to a job, business development, project management, and technical experience and all three of those, depending on what job you're in, kind of flu. And some jobs are more heavier than the other than others in those fields, but ultimately, when you first start your career, the idea is to figure out which of those three things you like the most, which ones are the most interesting to you, where do you kind of gravitate towards? Is it schmoozing with people in lots of different places? Is it looking into having details of a project all sorted out or is it like knowing Specific regulations in a field that, you know, someone asks if we had Ted on, and you know, if we ask him to cite something for us, I'm sure he could do it. And he'd be like, oh, well, that's actually from this thing here and you can get to a point where you're really good at all of those, but that doesn't mean that you have to do that. And it's really hard to be great at all three. It's really, I think it's almost like you can choose two, and that ends up being the balance, right? 

Like, it's hard to be good at all three of those things, and most people don't want to be good at all three of those things. Some of that's just not very fun. And so I love the business development side of things. I like the technical experience side of things and I like the project management side, even less than that. So, That's kind of where, where I am now, and that took a while for me to figure out, but that's kind of the joy of a career. I think a lot of times people are like, I need to immediately be a CEO and it's like, well, if that's really what you want, good luck, you can do that. There's, you can start your own business and do it now, but you don't have to, and it's really not, really not for everybody. So I think a lot of times people, you look at others and say this is what I need to do what they're doing. And I remember I made that same mistake when I started and I was like, oh, my boss is really great at these things. I need to be great at these things too. And that's not true. My first boss was really, really meticulous and he was really sharp, really, really focused, and he could find an error from like a mile away. You know, you know, I feel like eagles can see. Like 20 miles away, I swear he could spot a typo from 20 miles away. He's like, Oh, where's the E in the second E environment? You're like, how did you see that? Like, you know, and just, that was what he was, and I was just not that, I'm not good at that. It's not that I'm bad at it, but he was exceptional. And I, I remember being like, oh man, I'll never be like him. And then, you know, fast forward, you know, a decade. And I know a lot of the regulatory stuff that I was blown away with, with him, right? I knew there was somebody asked me why we had to do something and I was like, oh, based on the Air Force regulations that are here, it tells you that you have to, I'm like, and like I heard myself and I'm like, oh gosh, I'm an expert, how did this happen? And it was wild.

It was kind of like a moment I was like, oh, I am both, you know, I've learned a lot like my old boss, but I'm very different from him, and so we do different things, but we're kind of still in the same universe, you know, and that's kind of cool and there's no real plan for that. You could just kind of have to roll with it. So there are lots of examples of people moving around, there are lots of examples of people saying in one place and it really, really depends on your situation. If you're in a spot that With people that care about you, sometimes that's the most important thing. If you're ambitious, maybe it's not. And so there's no wrong answer. I think at the end of the day, you can end up in a place that you're happy, and that, that ends up being more important than anything else. And you look back on the journey and go, Well, I don't know how I got here, but I liked it. So that's what I would say. That's it. That's the story. 

Let's get to our interview. Hello and welcome back to EPR. 

Today we're excited to have Ted Boling returning on the show today. Ted is a partner at Perkins Coie LLP and formerly served as the associate director for NEPA at the Council on Environmental Quality. Ted, great to have you back. It's great to be back with you, Nick. Thanks for having me. Yeah, of course, you know, we did just talk, but there's a lot going on. As we, we noted, yeah, it's a fast moving environment right now. And so warrants, uh, you know, a bit more update on recent developments and what's coming. Yeah, and I mean, like, let's dive right into it. Let's not even waste time. So we know that there's uh CEQ issued its interim final rule, rescinding a few regulations that Have been pretty long standing. So can you briefly explain what that means and where we are in that process? Yeah. So what CEQ issued, which they described as an interim final rule, was actually a proposal to rescind their, the CEQ NEPA regulations that had been in place since 1978 are really sort of the cornerstone for All NEPA practice. The executive order on unleashing American energy directed CEQ in Section 5 to propose rescinding its regulations, and what CEQ did was sort of overperform in that regard to say our regulations are effectively rescinded, but we've delayed the effective date to April 11th. Um, and 45 days out, and then we are going to take public comment over, you know, 30 days. And so that public comment period just closed yesterday. Um, they received, well, somewhere in the 100,000 comments or so. 

They're still all getting uploaded, categorized, and that sort of thing. I should just be clear, I've, I've worked with folks on, I worked with several entities on their comments. But what I'm gonna say is not representing any client of of Perkins Coy, and uh this is simply my own take on the CEQ action and its implications. And I would just say, you know, just kind of put it all in context, what CEQ. What is done is effectively taking us back to 1977. Um, in the first seven years of NEPA implementation, the Council on Environmental Quality had guidance to agencies. They issued their first guidance like April of 1970, like 4 months after the agency was created, pretty rapid work. Then went through a couple of iterations. and that the definitive guidance was issued in 1973, and it actually looked a fair amount like regulations. I mean it was very detailed, um, here's how you do the NEPA process and helped resolve a number of issues between agencies because you can imagine, you know, the early days of NEPA in a very spare statute. It was a sort of choose your own adventure environment. 

I mean, it sort of federal common law was developing with courts interpreting the statutes and agencies following guidance, but their own, you know, predilections and that sort of thing, and different approaches. And so what the Carter administration came in. directed CEQ to do was as in, you know, part of the president's authority to take care to see that the laws are faithfully executed, directed CEQ, delegated to CEQ, the authority to create one unitary set of regulations. That's what, you know, CEQ did. In what was basically sort of like a regulatory negotiation. It was very, a very open process. The Chamber of Commerce represented industry, and the Natural Resources Defense Council was, was sort of the lead for the environmental community, states involved, unions involved. And that set of procedures stood the test of time was, you know, immediately embraced by the Supreme Court, finding in in Sierra Clubv Andres that the CEQ interpretation of NEPAs as articulated in those regulations was entitled to substantial deference. And so, you know, every circuit in the country, every circuit Court of Appeals, all the courts, basically embraced the CEQ regulations. Some sort of dissenting voices out there, some questioning, starting most significantly in the DC Circuit, Judge Randolph and uh the Alexandria v. Slater decision on the Woodrow Wilson Bridge back in 1999, questioned CEQ's authority. And that was the theme that he carried through for many years. But in 2020, we did the comprehensive update to the CEQ regulations, and that was pursuant to President Trump's executive order 13807 on discipline and accountability and infrastructure development, really making use of CEQ authority, leading that effort. Never questioning CEQ's authority and, and that, that comprehensive update was more or less in place up until the summer of 2024. Um, CEQ's NEA I mean there's some amendments, some clarifications in 2022, but, you know, basically, in 2024, the Biden administration did their own comprehensive update. And then that was challenged by 21 states in a case in North Dakota called Iowa versus Council on Environmental Quality. But the Trump administration came in and on day one of the Trump administration, the unleashing American energy. 

Executive order came out, Section 5 rescinded the Carter administration executive order, directed CEQ to propose rescinding its regulations, and lead an interagency effort to update all the agency and EPA procedures that are out there. Right. And so the state of play as of April 11th, unless CEQ reads those comments and decides to do something different, um, is going to be that we will have no CEQ NEPA procedures. Yeah, and I have, I have a really big question about that because they said there's a lot of past precedent, you know, we talk about that a lot. On the show, so we have all this past precedent. If that goes away, does the president also go away, or does it kind of, is it kind of up to interpretation by the court? Is that something that's going to change over? Yeah, well, what you'll have in the way of the law is a fairly confused landscape. First of all, you've got the statute, right, so NEPA was amended in 2023 in the Fiscal Responsibility Act. To codify aspects of the 2020 NEPA regulations and and some other additions there, but basically, sort of the cornerstones of the NEPA process that, you know, we have been blessed by Congress on many occasions. I mean, cross referenced in over 20 statutes and used by Congress, including in the fiscal course. Responsibility Act or that, I'm sorry, the FAST Act with uh creating the permitting council which referenced the environmental review process and NEPA is the cornerstone of all that, you know, sort of, you've got that statute that's been updated and in some reliance on the CEQ regulations and some codification of it, but not all aspects of it. And then you've got agency NEPA procedures out there, which are themselves sort of a mixed bag. Um, we have, you know, you got like 86 sets of NEPA procedures out there that now need to be updated. And all of those, well, none of them were updated to reflect the 2020 regulations. You know, that was, that was the work that was left for the agencies in the summer of 2020. You know, CEQ updated its procedures, gave the agencies a year to update their procedures, and then the Biden administration came in and said, nope, we're going to extend that deadline because we're gonna go through our own update here. So, since the summer of 2020, we've had this disconnect. 

Between the CEQ and NEPA regulations and the agency procedures that are all based on the old like 1978 procedures. Um, some of those, you know, being incorporated by reference, others basically are just supplementary too. I mean, you're not supposed to duplicate the agency, the CEQ procedures. So they're supplementary too, meaning that when the CEQ procedures go away, you've got this sort of free-standing set of procedures that are by design, just A supplement to something that no longer exists. So we've got all this potential for confusion and frankly, in action while we're waiting for updated deeper procedures. Yeah, so, and I know so agencies I think are again being told they have a year to update their NEPA procedures, but that's a long time. I mean, we've got a lot of that's got to get done. Well, it's a long time and it's not exactly self-executing. First of all, it's, you know, it's a Herculean task. I mean, it's a significant undertaking for each of those agencies to update their procedures. I mean, that's a rulemaking process, or at least it, it should be. And so allusion to potential APA exceptions, which frankly, I would hope CEQ would not run with. So that's a major undertaking because you're basically taking NEPAA and right sizing it to your agency EPA procedures. But imagine that, you know, over 80 times. That's all I got to go through the Office of Information and Regulatory Affairs at OMD. Um, it's got to go, you know, CEQ is going to coordinate it. CEQ guidance indicates they intend to coordinate it by monthly meetings. 

It's a much more significant undertaking than, you know, follow these talking points and let's get together once a month and talk about how it's going. Yeah, it's, it's, um, executive order says do it within a year. Well, we're still early days in the, in the Trump administration and the agency leadership is still coming into place. I mean, we don't have a, as of this conversation, we don't have a director of the Fish and Wildlife Service. We don't have a director of the bureau. Land management, I mean, just kind of run through the list of agencies. We don't even have a deputy secretary at the Department of the Interior or a deputy secretary of the Department of Energy. I mean, it's just, you know, the people who are there to make those key decisions are not in place. So, so there's a lot of, you know, coming together and frankly a fair amount of urgency. So, we've got, we've got a bunch of projects that are hanging fire. I mean, the things that didn't get done in the prior administration, they may be at like a draft EIS stage or, you know, environmental assessment waiting to go out to the public or even just categorical exclusion determinations and, and a fair amount of uncertainty. Yeah, oh yes, for sure, and it's funny, we've been working on one at Dawson. We're kind of like, well, what do we do now? And you know, we actually, it's, it's two different agencies working together. But I mean, you know, it's, it's interesting. I think I actually build on that. I mean, it's two different agencies working together. Well, that's the nature of the exercise is it is an interagency coordination statute, well. Now we're gonna have all these different agencies developing their own version of the NEA procedures without like a very strong coordinating role by CEQ and we're frankly gonna hope for the best, but there could be some tremendous disconnects between federal land managers, you know, regulatory agencies. 

I mean, you could have the Army Corps of Engineers. is going off in one direction and say the Fish and Wildlife Service is going off in a completely different direction. I mean, there, there could be some real problems for implementation that's gonna take some time to sort through. And I guess, you know, one of my questions for that too is, does that mean we'll see fewer cooperating agency documents and more where you'll have two different EAs or two different EIS's. From different agencies. That's a brilliant question. I would say that the Fiscal Responsibility Act, you know, still requires their own sort of, you know, codification of one federal decision. It's, you know, to the extent practicable, if you've got more than one federal agency, lead and cooperating agencies need to evaluate the proposal in a single document. So that's still part of the statute. Um, but the basics of, of lead and cooperating agency relationship is every agency needs to have that, that one document serve their purposes. And so you can have all sorts of controversy about now, you know, well, we're working at cross purposes. There's, there's that potential. There's a I need to work those relationships, not just, you know, in the usual NEA process of, you know, CEQ regulations of scoping and invitation to figuring out who has jurisdiction, special expertise, and that sort of thing, but also just your own procedures. Our comment period starts here and you know, exactly, exactly. I mean, even agency missions can be completely different if you think DOD versus. Fish and Wildlife Service. They just have missions, period. Yeah, I mean, that's, and we as environmental professionals all are familiar with that, and we work through those issues as a scoping process, but we've at least had a fairly unitary framework in the NEPA process for resolving those issues. Now we can have NEPA processes that actually work across purposes to that. 

Yeah, which, oh man, so I mean, I guess that kind of goes to. The comments that you're expecting to, you know, that you've seen coming to CEQ, I mean, am I expecting them to be answered? They said they're going to answer them. I mean, will they change things? I don't know. But, well, I mean, you know, that's the nature of an interim final rulemaking is you say what you're going to do, but you're taking comment on it and you reserve the right to change your mind or do something different based on the comments. Um, the Supreme Court's, it's An exception to the APA normal rulemaking where you, you know, propose something, take comment on it, and you finalize it with response to comments. But, you know, the Supreme Court's made fairly clear that once you, you've responded to comments, you've sort of, you know, cured any defects that might have applied to you or use of a good cause exception to the APA process. OK, yeah, yeah. So, yeah, that makes that makes sense and I. I guess my, you know, to kind of wrap this conversation up, what's your advice for organizations or agencies, you know, in this new NEPA landscape? How do we navigate it? Well, I'd say, I mean, my practice has mostly been fairly robust communication with anyone who's at the agency who can talk with me. We've had, you know, a fair number of changes in personnel there, and a lot of the, the very senior career. Folks that I, I've worked with over my 30-year federal career, they're heading to the exits. And we've got a fairly fluid environment. I've heard from people who are like, well, we don't know, we're still trying to figure this out.

 So I think there's gonna have to be a lot of just, you know, close coordination, including on just, you know, like managing workloads. You know, what's gonna happen when? We're all familiar with, you know, these sort of critical points where you, like, if you It's a survey window because of uncertainty. Well, you're maybe like a year behind that, you know. And frankly, that's the operating environment that people are, are dealing with. We've got, you know, it's just absolutely critical projects that need to move forward. We have to find the ways that work. Right. So do you see CEQ's role evolving? Are they going to still be, because it seems to me that they're still going to be offering some guidance even if they don't have their own. Regulatory framework. How are they gonna be? The CEQ guidance is fairly general, um, and at some points, it's rather inscrutable. I mean, frankly, you know, there's a lot of just sort of, you know, look at the 2020 regulations, which is logical, and that's the comprehensive framework. The 2024 regulations were set aside by the district court in North Dakota. Then, and it made very clear that we go back to the status quo, um. Which was June of 2024. The regulations that were applied then were basically the 2020 regulations with a couple of tweaks by the in 2022 on purpose and need, and also the definition of effects. Basically, you, you can look to that, but it doesn't have that sort of rigor and specificity there. 

And, and frankly, we don't have a nominee for a chair of CEQ. The executive order indicates we will, but it's an open question of, you know, whether we're going to see like a strong like issue resolving guidance administering agency there at the. inequality, or whether we're gonna be sort of in this mode of, well, come, let's get together once a month and, and talk about how things are going, which doesn't really, it doesn't meet the need. I mean, ultimately, what you need in, in my years of working with and for CEQ. We were problem solving. We would get the parties together and we were not afraid to dig in on a particular matter. And it's just, here's the issue. How do we bring people together and actually get to resolution? Right, and then we've got the permitting council too. It's, you know, we don't, we don't have a nominee for executive director, but that's, that's a very close relationship between CEQ OMB, and the permitting council is in, in many ways how major infrastructure projects get done, or at least that's the framework that Congress has created and embraced. We may be in a whole new world, but that's what can and should work. Right, got you. So do you see that as like, you know, certain industries like if we're talking about renewable energy or transportation or other infrastructure projects having maybe I guess larger impacts on this versus other smaller agencies or just smaller projects? Well, I think it cuts across the board. I mean, conventional energy. Projects, renewable energy projects, and all manner of transportation projects, and it really, it's a shared burden, and particularly in the transportation space where you have state agencies that are operating under, you know, MOUs and delegated authorities. The state agencies are, are bearing the brunt of these questions as well. Um, what their, their MOUs, they pledged to follow all the federal direction, including this executive order on unleashing American energy. Now they're, they're not updating the federal highway need for procedures, but they're, they're bound to follow them. Right, right, yeah, exactly. And my, my goodness, I know, I really feel like I could keep asking you a million questions about it, but Yeah, we could probably come up with new angles on it too. One that one that just came to me a little while ago or a few days ago is just about, what about, you know, CEQ's authority to do emergency alternative arrangements. I mean, for environmental impact statements, that authority doesn't reside anywhere but in the CEQ regulations.

If there is a significant emergency, like, you know, what we had with Tilton Air Force Base, and they needed to move, you know, fighter planes over to Eglin Air Force Base, and we had, it would ordinarily be an EIS level exercise, and we had to do alternative arrangements. I mean, there's, you don't have CEQ with authority to do that at this point. So what do you do? I think the Air Force or, you know, whoever is gonna have to basically use their best judgment, but you also have this. Potential for really complicated judicial review, cause you're literally you're flying by the seat of your pants there, saying, well, this is an effective means of implementing NEPA, and, you know, the court could disagree. Yeah, I mean, and we've had, we've had litigation over emergency alternative arrangements. I mean is that in uh Coleman v. Young in the Carter administration in, well, the mobilization for Operation Desert Storm, the Westover Air Force Base case in Massachusetts was a matter of litigation and very time sensitive litigation. Oh yeah. And also, you know, winter versus NRDC, the Navy sonar case. I mean that. My involvement in that started in the Situation Room in January of 2008. I was like my second week as general counsel of, of CEQ after I've been, I've been deputy general counsel for seven years, but, you know, in late December, my predecessor Dina Baer said, Ted, I'm, I'm sorry, I've not been able to resolve the Navy sonar, you know, whales controversy. And, you know, and then wham, we got a district court order and we were We were there talking about the implications for, you know, deploying a carrier group to the East China Sea, uh, which you, you can't do unless you've got properly trained sonar operators. 

Yeah, so talk me through that because that's a, that's a fascinating case in general. So I, I understand the basics, right? We're like, you know, the navy sonar can be damaging to whales, this that and the other. I think that's the, the core of the challenge, right, with that we're doing harm to whales that are protected. So, when you get that case, and you know, I, I think you told us like what you're, you're called in on a Sunday to the White House, you're like, OK, this is a big deal. How do you, how do you process all that and where do you start deciding what to do? Well, fortunately, I mean, we I had a little bit of warning and we're fairly familiar with the situation and, and particularly, I mean, submarine sound is a very complicated area. Frankly, it's hard to explain to a district court judge, I mean, it's it what the true effects, what the likely effects of on whales are, and the difference between mid-frequency active sonar versus low frequency sonar. Different whales use different sound at different levels. So you, the large baleen whales operate at a lower. Frequency, you have the, you know, mid frequencies sonar has some effect on on smaller beaked whales, like the Cuvier's beak whale, which was the primary issue there. And, you know, these projections of, you know, just with great scientific uncertainty about the potential for what they call under the Marine Mammal Protection Act, Level A harassment. Which is actually doing injury versus level B harassment, which is just, it's gonna modify the, the animal's behavior in some way. 

A lot of really complicated issues. And frankly, we were called in to help with alternative arrangements. They got a district court order that they just could not comply with, and they proposed a new action. And then we also had to do that in conjunction with under the MMPA, the Department of Commerce, who's exercising its authority to waive requirements. Um, and in the alternative arrangements I've been involved in, every one of them is the sui generis. They're all their own special set of laws and facts and time frames and urgency, and that's why you really need to be able to craft a solution. Um, NEPA doesn't have an emergency exception in it. You're not operating in terms of an exception. You're talking about a way to make NEPA work, given the exigencies of that particular action. So we did some alternative arrangements for the Navy. Ultimately, the court disagreed, questioned them. Ultimately, the Supreme Court. I mean, that case went up as through the court system about as rapidly as you could go. I mean, to my name. On the SG's brief in that case, before we knew it, we're, you know, it was November and we had a ruling. Um, and, and, you know, you had Justice Breyer sort of questioning, why are we even here? In other words, why didn't this get resolved? You're like. Yeah, honestly, we tried, we tried and tried to avoid that. But that's the real world. I mean is the real live situations involving complex environmental issues, operational issues. How do we make this all work together is, is not an easy feat, and it frankly takes a good deal of teamwork and collaboration amongst agencies. 

Yeah, it's, it's interesting because I feel like it's almost like, you know, CEQ had given us a foundation for agencies to work off of, and now we're in a space where it's like, well, ignore the foundation and make your own foundation, and I guess if that were the case were to come up now, and you know, you're getting pulled into council as well, and you're like, well, There's lots of ways we can try to do this, and this is the foundation that we're going to lay. Is that kind of where we are? Is that what you'd expect to see happen for something like that? Well, you know, if I were back at CEQ, I would be doing my level best to construct a reasonable interpretation of the statute, something that's entitled to be, to get what we call Skidmore deference. I mean, it's just sort of, you know, by virtue of its own logic and authority, um, using CEQ authority as it exists in Title II of NEPA, and frankly, making sure that it's well grounded, both in, in law and fact, and, and particularly science. What we say about the effects analysis has got good record support. I frankly, that's what I think the general counsel of CEQ would have to do. And, basically, I think at this point, if we have an emergency during this interregnum, and this, this is an open question, it basically be called upon to put together some sort of record, you know, it might take the form of like a letter from whoever is in charge at CEQ to the agency head saying, here is our best interpretation of the statute and what we recommend you do. Yeah, very interesting. Wow, yeah, OK, so I promised that we would talk about other things too, um, and one of them that I thought was quite fun and we've had, we've talked a little bit about IAIA on the show. International Association for Impact Assessment. The international analog to the NAEP. Exactly. 

So I know you've been very, very great participant in NAEP, but you're also involved with IAIA, and this year I think it's in Italy, yeah, it's in Bologna. It actually follows. Right on the heels of, I mean sort of overlapping with the NAP meeting. So, uh, my plan is to on April 30th, I'll be doing the plenary at NAEP along with Eric Ble, Tommy Boudreau, and, uh, horsescratch meal. Yeah, coming back. Um, I'm very happy about that. Um, and then I'm gonna run to the airport and hope to make my flight to Italy, uh, because Michael Smith and Pam, everyone knows her as Pam Hudson, but she's remarried now. But Pam and Michael and I are going to, um, have to explain what's going on in the United States. Um, to an international audience, and, and we'll be, you know, we'll be talking with the Canadians, we'll talk with the Europeans, we'll talk, folks all over. You know, Pam Danko wasn't able to make it to Dublin, so it was just Michael Smith and me, but in some ways this is a reprise of something we did at the Vancouver meeting. Uh, there was also one in Malaysia, which only Michael Smith went to. Uh, I just couldn't. I couldn't go all the way to Malaysia for that. But it's fun. We're just, you know, we get to update the world on, in some ways, here we are speaking the mother tongue. It's, you know, NEPA got started in the United States. It's like, you know, if the national parks were the, you know, America's greatest idea, as they say NEPA is the second greatest, but, um, you know, you've got all sorts of different iterations of it around the world, but they generally follow the. framework. So I think there will be a lot of interest in what is CEQ evolving to, what are the NEPA procedures evolving to, what's going on in permitting reform, and we haven't even talked about what's being discussed on the hill. We've got a lot to talk about. 

Yeah, and I mean, I always find it quite fascinating. I think, again, it's, it's almost like a just a similar kind of NEPA like you're talking about. But when you go to those meetings, I'm assuming there's running both ways, right? So you see something in the international community that would work here as well. Um, absolutely. I'm, I'm, I'm vitally interested in what works in, you know, the analogous industrial democracies. Um, how is it that Germany or Canada can be or. it can be so much more efficient and particularly infrastructure development and infrastructure delivery. And how do we, how do we make this work? I look around the Italian landscape and it's like, my gosh, everything is historic here. I didn't build anything here. I mean, it's so true. What is it like? Yeah, but then again, I mean, I should look around the American landscape and say everything's historic here too. I know, right? Well, it is funny though, because I would say like they've got benches older than our whole country in Europe, and it's. But yeah, at a point very well taken. So it's very cool. Um, like I say, it'd be really fun to hear more about that trip at some point. But yeah, so, I mean, can you think of maybe like one thing that you see on the international stage that would work here? That we aren't doing? Well, I, you know, I think there are things that are done on the international stage that we could do better. Chiefly collaboration, that in many countries, I've certainly seen this with regard to, and it's described in terms of, in a, you know, like transit projects in Austria where people are just like take a real pride in their new station for light rail because they participated in the design of it. 

And it's not a heckler's veto kind of stemming process, it actually moves along as people understand, we're here to make decisions, we're gonna get substantive input. We try to arrive at good substantive decisions. I find that refreshing, um, and I think, I think we could probably do. Better in terms of collaborative data processes. And CEQ's issued guidance on that many years ago. I'm expecting it need to be refreshed. Yeah, so, but I'm looking forward to learning more. I mean, it's all sorts of different models out there, and I'm, I don't know what I don't know as it stands right. Right. Yeah, very well said. And you know, it's funny, I, I, I'd be remiss if I didn't say that at the NAP summit in Charleston, you'll be doing the uh advanced NEPA course too. So for those of you that haven't signed up for it, you should. It's, it's always a great and wonderful time. It it'll be the friend and Ted show Fred and I. Exactly. I saw it happen a month ago in Tampa for Florida, the Florida AEP, but funny from that that meeting, one of the things I really want to ask you about is your thoughts on cumulative impacts, because I know it's something that's very important to you. So what do you think about it? How do you feel when you see a cumulative impact section in an EIS? Oh, I hate that. I mean, you know, I, I really, I actually like the, I mean, the, the current, you know, current definition of effects, where you have sort of a clear continuum of effects, you know, indirect effects, direct effects to interactive. Cumulative effects being a species of effects that it is an aspect of effects analysis. The CEQ guidance on uh came out with the interim final rule, talks about how, well, the word cumulative doesn't appear in the statute. 

Well, there are a lot of words that don't appear in the statute. But really, you look at the history, the reason for NEPA. If you look at, you know, Cleppe versus Sierra Club in 1976 Supreme Court cases, they're like cumulative effects of why we do this. I mean, it's, and it's up to the special competence of the agencies to figure out, you know, how far out do we trace the effects analysis. And we're gonna, we'll probably have an opportunity to talk about. The Supreme Court decision in the seven County Infrastructure Coalition case. I hopefully it'll, it'll actually be out by then and help clarify that. But that's to say cumulative effects is not part of NEPA analysis. It's just, it just strikes me as fundamentally wrong or, or just a mistake, a category mistake, because it's, there are effects that are by their nature cumulative. Yes. Or accumulate. And, you know, why do we care about this? It's not insofar as well, because we're gonna have this, this direct effect, but it's because of the past, present, reasonably foreseeable, you know, we're, we're looking at the trend line. And I thought Fred put it very well. It's like, ultimately what we're talking about here is the context. Why do we care about these effects? Well, here's the context. Um, be it there's been this development in this community before, and this is another straw on the back of the environmental camel, and I'm referring to a second circuit case in 1972, Hanley B. Kleindes, which talked about what was basically a cumulative effects problem in an urban environment. It's kind of intuitive. And, and frankly, for those who, you know, with all due respect to those who are just like, get rid of cumulative effects. I said, what are you talking about? They say, oh, it's too complicated. 

It's like, No, you can make it too complicated. I mean, it's kind of like what Paul Clement said to the Supreme Court about the Sable Trail case. It's like, I don't object to the decision. It's just what it's become. It's sort of like, to your example, a separate cumulative effects section, for me, that's just a warning light going off. Like, OK, you know, we'll look through and why do you, why are you repeating your effects analysis with a couple of slant. On it. That doesn't make any sense. It's not efficient. Are you really looking at cumulative effects? I mean, oftentimes it's the last section, you know, as we see these drafts in process and you're like, well, we'll get to the cumulative effects. You're like, well, wait a second. You've already done the effects analysis. What, what aspect of that is cumulative? You know, and I worry that people are just using cumulative as a sort of meaningless adjective without really looking at what about it is actually cumulative. Yeah, I mean, it's a great point, and I I always look to like, you know, there's a, you know, city infrastructure, if you think about it. If one person builds something, then someone else builds something and then someone else builds and then before long, every time it rains, your sewer treatment plant overflows into the Potomac River, for example, don't know where I'm coming from. That becomes a cumulative effect, right? That wouldn't happen except everything that was keeping that water in is gone. And so now you have, you have a new effect and it's kind of like the status quo is the Potomac River and the Anacostia are full of fecal coliform. That is the effect of a lot of different projects. 

So yeah, I think a lot of times people almost they over and underthink it at the same time, where it's like, OK, well, it's got to be its own thing because it's very special, and let's just copy what we did earlier and paste it because it's the same. Yeah, yeah, I, I think that that back of the environmental camel analogy has actually done us a disservice because, you know, frankly, we're not looking for like this specific tipping point. At some point in the future, you know, often there are, you know, like cascading effects that you can sometimes foresee them, sometimes you find them in retrospect is say, OK, here's where things really started to plummet, or, you know, where like a species got to a population level where they began to swirl in the extinction vortex. Um, but more often than not, it's really just, hey, take a step back and look at all that we've lost and all that we're losing, and the trend line here. And, and that's what NEPA ultimately is, is designed to do. I mean you had senators like Scoop Jackson who really honestly cared, tell me, you know, in one concise document, what's significant here, and they're looking at an environment in 19. 68, 1969, where it was radically changed from the environment that they knew when they were children. Right. And like, how did we get here? Where are we going? And that's, those are basic problems. I mean, I can, I can see that over the course of my life where it's like, you know, you look at Fairfax County, Virginia when I was growing up in Reston in the 1970s versus, you know, what it's like now. And like, Oh my gosh, I can't even imagine. To me, it's funny because Reston to me is kind of like the heart of, not necessarily, but, you know, Northern Virginia. It's, it's pretty, pretty in there. And when I, when I first moved there was miles of cornfields between Reston and Tyson's Corner. That is wild.

 I can't even imagine that. Oh man, yeah, for me, I guess it was Manassas. It was kind of like it was the boonies, and I guess technically it still is, but it's filled in. Oh boy. So we have the Manassas battlefield, and fortunately they were able to, you know, acquire a fair amount of it such that you now have a good historical experience. You can understand how, you know, the 1st and 2nd Manassas or the battle Bull Run, whatever you, you know, how those worked and, you know, the history there, how the Civil War started in Mr. McLean's front yard and then ended in his parlor because he, he moved to Appomattox to get away from the fighting. That's very funny. Yeah, it's very true, you know, it's, I grew up about an hour from mathematics, so I was always, always pretty close to, uh, our hearts in school. So yeah, it's funny you bring it up. So, with apologies to others for us digressing into Virginia history here. Yeah, right, right, right, I know. Yeah. What old is new again? Right, exactly. So I know we're getting close to the end here, but is there, is there anything that we haven't brought up that you'd like to talk about before we close? I'm just interested, and Nick, you've been doing these interviews for a long time. I'm, I'm interested in your thoughts on just sort of, you know, the state of the practice and, and where we're going. Oh man, yeah, well, honestly, I think doing these interviews, talking with you, talking with Fred. It gives me a lot of perspective that I wouldn't have. I think even the last time we talked it with you, you, you said, you know, we've been here before. This seems new and it seems scary, and it seems unreal, but this is what we were doing prior to CEQ regulations being there. And, you know, NEPA didn't used to be a thing, and it still is a thing. And so I find that doing the show is keeps me optimistic and I think one of the things that We talked about the advanced NEPA training has really stuck with me, you know, it's. This too shall pass was the end result of that, uh, conversation, but it's just, we talk about like, wow, there's always change, but there's always change. 

We, we adapt to it and we move on and, you know, I think, you know, it's sort of keeping with that theme. I mean, I, I think, you know, sort of like take a long view of how, you know, the needs, the need for NEPA, the need for environmental for basically informed public decision making. He's going to remain. And frankly, the more we have just sort of this information overload and disinformation and, and hysteria and such, it's recognized by serious professionals and decision makers. We need this information. So I think we should keep faith, keep on the sunny side. Yeah. Yeah. And yeah, that's a great and wonderful advice. I really appreciate that. And, uh, before we let you go. American people get in touch with you if they'd like to reach out. Ted Bolling at Perkins Coy.com. I'm uh always available in that way and uh you know, it's uh tedbolingperkinscoie. com. So there's two opportunities for mis uh misspelling there and I'm not Ted Boiling. I was gonna say like, we really could have a whole show about how people misspell my name too. I totally, yeah. Thank you, Ted. I appreciate it. Hey, really, this is wonderful. Yeah, Glad to continue with you. And that's our show. Thank you so much, Ted, 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. Bye.