EPR Live from Charleston with Fred Wagner, Rod Smolla, and Siobhan Gordon

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 Fred Wagner, Principal Environmental Advisor at Jacobs, Rod Smolla, President of Vermont Law and Graduate School and Siobhan Gordon, Senior Environmental Planner at Mead and Hunt about the future of environmental policy both in South Carolina and at the national level.   

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Music Credits
Intro: Givin Me Eyes by Grace Mesa
Outro: Never Ending Soul Groove by Mattijs Muller

Transcript

Thank you, guys, for being here. This is EPR Live. 

I'm Nick Frederick and I'm joined as, of course, with Laura Thorn, as you can see. Um, so, before we get started, I wanna give a big shout out to Aldoa, all in one platform transforming how environmental consultants manage projects. Instead of juggling projects, financials, info, and field reports across different systems, dealing with all the delays and errors that come with it, Aldoa brings everything together in one intuitive solution. It's modern project management, financial tracking, and field operations all in one place help teams stay on schedule, control costs, and ditch the admin headaches. Check them out. And book a demo at www.aldoa.com. 

That's my radio voice, in case you guys are wondering. So yeah, we're just gonna sit up here and talk and have a good time, and there's nothing really crazy going on. So I guess we'll talk about the weather or the flooding maybe that we had, uh, the other day. But yeah, Mike, do you have anything for us as past president? Well, you're really rushing me out of the office, aren't you? You got like another day. Do you really? Well, whatever. Anyway, uh. No, I'm just excited to be here as always. I'm glad I made the cut to be able to sit next to you and and do this so exciting to, uh, talk about what we're gonna talk about today in the panel. All right. And we do have a great panel for folks today. We have, uh, Siobhan Gordon, who is a senior environmental planner at Meath and Hunts. We've got Fred Wagner, whom none of you know, I'm sure. Now of Jacobs, and uh very excited to have him on as well as Rod Smolla, the president of Vermont Law. So it's a, a crew of really great and smart people. We're in South Carolina, so I thought it'd be great to start with South Carolina. So Siobhan, tell us a little bit about your background. You started in SEDUT and where you are now. Certainly. Yeah, so I started my career with SCDOT. I went to College of Charleston, the, you know, this beautiful city. I had to go to go to college here. And I majored in biology. I figured I'd be working for the state or the federal government, but I was thinking more DNR, Fisher. Wildlife Service, something along those lines. And I learned about an opportunity at DOT for biologists, and I know a lot of folks here understand what biologists do in transportation industry, but as a young professional, I was like, they pay votes. What, why do they need me? And so, that's how my career started with EOT. I was a field personnel, then I transitioned into the permitting realm, which I, everybody thinks I'm crazy, but I'm very passionate about permitting love, working with the Army Corps of Engineers, and was with EOT for 14 years and decided that I needed some growth opportunity with my career path and decided to Go to the private sector.

I'm with Maiden Hunt now. Cool. So you're also part of the SCAEP, right? And I want to give a big shout out to them. It's NAEP dash S. Oh yeah, that's right. That's right. See, that's why you're here. That's why you're here. Let's give them a shameless plug before we ask Fred and Rod what they're doing. Absolutely, absolutely. So we are a very new chapter and I honestly did not. Realize how new we were until Alaska said that they'd had a chapter for 30 years. Um, that was shocking to me. Our chapter started, and I think Ward touched on this a little bit yesterday, but our chapter started right at the end of 2019, early 2020, right before the pandemic. So we're just at 5 years. I've been a member for 3 years. This is my 2nd year on the board. And we have almost 200 members, which is awesome. We are going to be giving out $12,000 in scholarships this year, and we do a ton of events. We've had a lot of lunch and learns. Um, last year we had an environmental law 101 workshop. We started doing some volunteer efforts last year. We did this squire oyster wreath build, so some of you guys participated in that on Monday. That was our first volunteer event last year. We've done some stream cleanups. And we really have an amazing group of folks that not only started the chapter, the inaugural folks, but as it's grown, it's just an amazing group of folks and the South Carolina environmental professionals were already a close-knit group and it's just pulled everybody even closer and brought in other people that we've been able to grab. Yeah, it's been really cool when we first heard about the numbers that the folks that you had, we're kind of, whoa, it was really cool to see. So I'm it's been awesome and you know, we're getting the agency. He's involved, a lot of our lunch and learns are with the state and federal agencies, you know, starting to get some agency membership, but, you know, it's a little bit difficult sometimes with government, but they, they are engaged, which is very important. Well, it's not difficult at all right now. It's the easiest time for the government to be in. No, I actually think so one of the things that we saw in Minnesota when we hosted last year, because we're also fairly new as a chapter, but one of the benefits of hosting an event in your area is you've seen an influx of new members. They didn't know you existed. And so it's a great opportunity to not only get the word out about any EP but also get the word out about the the chapter as well. So I'm excited to see what happens after the conference in terms of your membership as well. I am too. Yeah, very cool. So we have two other folks up here with us, so we'll go ahead. Fred Wagner, illustrious career at Venable, a new shift to Jacobs. I think we're month 210, perfect. You have the 7-county case. We'll talk a little bit more about that, but just give us your, your background. Tell us a little bit more about you and What you're excited to talk about today. Well, after, after 40 years of a lawyer, as being a lawyer, I got to the Supreme Court and I said, mic dropped, I'm out. Um, it's been a great career as a lawyer, Justice Department, law firms, USDOT general counsel at FHWA, but I woke up one day last fall, and I said, do I want to be billing 150, 1600 hours a year at a law firm, and all the things that you have to do to do that at a law firm? And I rolled over and I woke up and I said, no. And I said, no, that's not what I want to do. And so I thought, but I do want to do the things that make me passionate about it, and litigating the seven-county case is exactly what I love doing, not the litigation per se. It was the project, right? You know, people forget, it's so it's, they want to talk about the case, you know, but they forget there's a project underlying a case, and there's a reason for a project, and people who benefit from a project, that's why people are doing it, and that's what really got me up. And so finding a a home where I can still do that kind of work is great. I'm not turning off my legal mind, you know, I, I still have that discipline, but that's, it's a really big change after 40 years. Yeah. 

And we also have Rod Smolla on. You're the president of Vermont Law and graduate school. You graduated from Yale and Duke, top of your class at Duke. William and Mary, professor, argued in front of the Supreme Court. You've written books, you have a Wikipedia page. So my first question for you is, have you ever been embarrassed? Because I need something. Yeah, by my Wikipedia page. So yeah, I've been embarrassed. I don't know how many of you know the uh great holiday movie Christmas Story with little Ralphy who's Ambition is to get a BB gun. And there's this moment where he hands in a paper to a school teacher, and he's got this beautiful look on his face, like he's so proud and he's, he's fantasizing about the BB gun, and his face is just frozen with his beatific look on his face, and the teacher has to snap him out of it and say, Oh, OK, Ralph, I've got your paper. So I had a Ralphy moment. In the Supreme Court of the United States. Oh, so here's how it went. There's a ritual you can do when you get sworn into the bar of the Supreme Court in which your law school dean of wherever you graduated from, will bring you there like on a field trip, and the dean's job is to read everybody's name. And then to say, may it please the court, on behalf of all of these fine graduates of this happened to be Washington and Lee Law School, and as a member of the bar of this Court, I respectfully move their admission. So, we had one of these field trips, so everybody arrives in DC the night before, and we have a nice dinner, and I give this fancy talk on the Supreme Court, like I'm the big Supreme Court expert. To impress, you know, the alumni who we want to have us give us, you know, money and do that next morning comes, it's time to move their admission. And I had a long list because I had to have, I wouldn't remember everybody's names, like 1314 people. And I had the list in front of me, the cry sheets. I'm at the podium of the Supreme Court, and I had practiced the pronunciation of the names, you know, I had it all down, you know, and go through the entire list, and then I had the Ralphy beaming look on my face. I'm just looking at the, you know, and there's absolute silence. You forgot the magic words. I did. And Chief Justice John Roberts looks at me and he says, Mr. Smolla, is there something you'd like the court to do with regard to those? No. And I, oh yeah, yes, Your Honor, I moved their admission on it, you know, so that was embarrassing enough, but that would have been the first time in the history of the Supreme Court that a motion to admit was denied. They didn't make the motion. Oh, that's amazing. Rule number 1, show up. Rule number 2, make the motion. Right, right. That's great. OK, now I feel better now. Thank you. Um, no, uh, like I said, we have a lot of experts up here and I want to start in South Carolina again because that's where we are. We were just talking about federal highways and you smile because you know where this is going, right? What is your typical process with SCDOT with federal highways and how is that changing? So, typically, when I was with DOT, we could just pick up the phone and call federal highways, tell them about the project, this is what we're looking at, how do you think we should proceed at DOT we would have what we call ACE meetings, their agency coordination efforts, we would bring all the different agencies. 

That would be involved in the project together to talk about the project. This is where we are, are we on the right path? And so Fed Highways was very much within reach. As of 1 week and a half ago, 2 weeks ago, there's no longer a Columbia Federal Highways. Office. And so I'm not sure what that looks like now, you know, I don't know what that process is going to be. So typically, like, what would you typically do and what can you not do now? So you're calling them, you're saying, hey, this is what we're going to do, and they're saying, cool. I wouldn't, I don't even know who they're going to be calling and talking with North Carolina DOT, it sounds like their office has been whittled down, they still have some folks, but it's my understanding that the couple of folks that are there will also be over South Carolina, so. This is assumptions. I still don't know what's going on exactly, but hopefully that relationship will get established between SCDOT and the Fed highways in North Carolina, but You know, are you telling me North and South Carolina are gonna get along? That's what you're telling me. I don't know. That would be the hope, but, but yeah, it's, there's a lot of unknown. The EA practitioner that was at the Columbia Fed Highway's office, you know, he's got over 20 years' experience. He's been doing this a long time, and it's, it makes The process go much smoother when you can just pick up that phone and have that expertise. So we'll see what happens. Yeah. And are you calling the people that are no longer there? Is it kind of like, well, you're not there anymore, but I still know you know this? Yeah, I haven't had the need to call just yet. I mean, like I said, this is very new, very new. I'm not sure. 

Yeah, well, I mean, the thing to remember is that the uh FHWA division offices are not all very big. So to the extent staff is being whittled down, you're sometimes talking about offices that were maybe 7 or 8 people and going down to maybe less, right? And so if you're losing the expertise in some of the division offices, they're called division offices at FHWA, that's a really big. And of course, the irony of all ironies is that if the goal was to, we got to move the federal government out of Washington, right? That was, that was the thing, we had too much in Washington. Well, FHWA, the vast majority of their employees were in the division offices in the states. They were mostly out of Washington. And so if you're willing down those states and you seem to be defeating two purposes. One is Getting the government closer to the people and then also, you know, losing the expertise you need to run the program. So it's a pretty big deal. Yeah. Well, and the efficiency too, you know, I mean, everybody wants efficiency with the environmental process and the environmental approvals. And when you have less people to answer the questions, review the documents, it's going to take longer. Yeah, and I mean, Rod, is this something that we're gonna have to get used to seeing? Is it the new normal? Is there a pushback? I mean, one of the questions I have really for all of you is there's a lot of lawsuits. There's one on Monday talking about how unconstitutional some of what's going on is happening, but is this our new normal? Are we just going to be expected to do things completely differently than we have? Well, I'd say for between 2 and 4 years, yes. So how do we adjust? What do we do to kind of mitigate some of those changes? Because it's a lot of changes and it's a lot of really big, big swings from the administration, and we're kind of reacting. How can we be proactive? Well, when I first pitched doing a talk here at this conference, I was thinking about the Supreme Court again, and the uh series of decisions over the last 3 or 4 years. That had as the agenda, the dismantling to a large degree of the modern administrative state, which obviously has huge implications for environmental practices across many, many federal agencies. And now that seems like an obsolete pitch because the events of the last three months have, you know, been a tsunami that have overshadowed everything else going on in our society, including So many things that affect folks in this room, not only substantively, a substantive policies and law change, but the assault on science, the assault on Civilized discourse, the assault on academic freedom, all of those things, it's extraordinary. I'm sure we'll get into some of the merits. Soon, I think it was maybe 6 weeks ago, the New York Times counted 132 lawsuits challenging the bevy of executive orders. That's an obsolete number now.

 I suspect it's over 200. The Venable law firm represents our school as a consortium of independent law schools, for example, to try to navigate it. So it is a sort of fasten your seat belt and we'll see, I'm sure we'll get into this much more later. I do think there'll be some judicial spying and independence and push back as these suits go along, but it will be a, it'll be a roller coaster for the next several years. Yeah, and I think it's honest, that, that's a really, it's what's going to happen. I agree with you. And we talked about the Supreme Court and I do want to give Fred a shout out for a seven county case, and can you give us an update on where that's gonna be right after this? Yeah, I, I actually can. So, the session on Seven County that we were gonna do today was reschedule to tomorrow. You'll see a sign. It was rescheduled because my partner Jay Johnson from Venable, my former partner, was called to an emergency hearing at the DC Circuit on the greenhouse gas reduction litigation against the EPA had to be there. So, so, so he had to change that. The Supreme Court, the way it works is they don't tell you in advance when they're going to issue rulings on your case. What they do is announce what they call decision days, decision days. So any day that the Supreme Court has oral argument, there also may be a decision day. And yesterday they had a decision day, and at the end of the day, they announced a decision day for today. And so at 100 a.m. they take the bench, and surprise, surprise, you don't know which one, they announced the ruling. But there's a little way that you can track how they do it. So, there's a calendar, they have decided all the cases from November that were argued. 

They've decided all the cases in December that have been argued except 4, and 7 County is one of them. Of the cases from December that were decided, all the liberal justices have already written. As has Alito and one other. So, there's only 3 judges that could write, justices that could write our opinion. So we know, we think who's gonna write it, and we have a 1 in 4 chance of the decision being announced at 10 a.m. today. So for those of you who are interested, tomorrow's session could be very interesting. Because we actually may have a ruling to think about or not, we just don't know. It's a surprise, but, uh, as a Supreme Court nerd, there's this blog called SCOTUSblog, SCOTUS Supreme Court, and I say SCOTUSblog, and people log on starting at 9:45. And it, it's this SCOTUSblog fan club, and they start chatter chattering about, oh, what's it gonna be? What's the decision? Who do you think's gonna write it? And people log in from all over the place. And then the funniest part about it all is the reporter, Amy, her name is, everyone just calls her Amy. Hey, Amy, how are you? It's like they're friends. The Supreme Court brings in boxes to the courtroom. When they announce a ruling, it's copies of the decision, and depending if there's a majority decision, a concurring decision, a dissenting decision, that's more paper. The box could be one box, it could be two boxes. It could be one decision or two decisions. So, starting at about 9:58. Everyone says, how many boxes, Amy? How many boxes? And she'll say, oh, it's 2 boxes, and everyone goes, Wow, it's gonna be two decisions we can't wait, we can't wait. So little insight for Supreme Court nerds. So, uh, yeah, after I get off the stage, I'm gonna be finding a quiet place with Wi Fi, and I'm gonna be refresh, refresh, SOTUSblog, because 10 a.m. there's a possibility I may have news. Yeah, that's kind of fun. That's right and, yeah, kind of like Christmas except. Yeah, nerve-wracking but yeah, much more terrifying. Yeah. I, I couldn't help but notice you smiling while Fred was talking about that. Yeah, because, so one of my favorite writers for many, many years was a writer named Calvin Trillin, who wrote for The New Yorker. He was a food guy, but he was also a really great essayist, but he was also the New Yorker's deadline poet. So the editor of The New Yorker would say, I was supposed to get a poem in. I didn't get the poem. I need a poem by tomorrow at, you know, at 7 a.m. we gotta go to press, and he would have to write a poem. So sometimes I'm a deadline pundit. We will know that there's a case coming down at 10. And some paper or broadcast outlet will say, I need a comment from you by 10:15. And of course, the problem you got to do is you got to speed read, you know, 80 pages and reduce it to a sound bite that makes you sound smart and try not to get it wrong, you know. 

Anyway, that's why I smile. Yeah. How do you do that? I mean, is it like just practice the first time you do it? How nervous are you? Like what? Well, I, I mean, I mean, it's like Harry Potter, you know, is Voldemort dead? How do you do it? You go to the last page, you know, Harry's still there. OK, the, the, the, yeah, the tricky thing is that today's Supreme Court will often Have very splintered opinions. And so there may be an opinion that seems like it's the the ruling, but then, then for the people right and you got to put together that and do the math and figure out what exactly happened here, and that's where you can mess. Well, well, our case is even more complicated because we're down to 8 justices. Uh, Neil Gorsuch recused himself. Which is really unusual in today's Supreme Court. He had been general counsel to a company that wrote an amicus brief, and he decided to recuse himself, which is, you know, again, hasn't happened very much. I mean, you know, Justice Thomas gets RVs from people and he doesn't recuse himself. So he recused himself. Amy Coney Barrett recused herself from a case this morning, just this morning. There's a case about, uh, religious schools getting funding. And she announced that she was recusing herself because her kids all went to religious school. So maybe there's some ethics also returning to the Supreme Court. Did I say that? Um, maybe, um, I, I'm no longer a lawyer. I could say that. I can say it. But no, I am a lawyer, so my license. But so the complicating thing is we got 8. So 44, we lose. Oh wow, OK, yeah. 44 is no good. 

Ty goes to the runner, in this case, Ty goes to the lower court. So we need, we need 5 out of the 8. And it was really weird at the argument because some of the liberal justices were actually very sympathetic to some of the arguments that the 7 County Infrastructure Coalition was making. Very sympathetic, and it was really kind of peculiar, including Justice Jackson, you know, including Justice Kagan. Now, I don't think they would necessarily sign on to something that Justice Thomas would write. Right. That would still be a, a step for, for them, but you have to remember that Public Citizen, which was the case that talked about the scope of NEA review from 2004, was a Justice Thomas ruling, and it was 9-0. So, I mean, stranger things have happened and the dynamic at the Supreme Court was such that we don't know how it's gonna come out. The other crazy thing I tell you and the lawyer that stood up for us was Paul Clement. I don't know if you know Paul Clement, the former Solicitor General, one of the preeminent, if not the preeminent Supreme Court practitioners in the country, extremely conservative. He was rumored to be a Supreme Court nominee himself. So he was our colleague, he, he ended up arguing for us. Which was a big honor to have someone like Paul Clement argue. But, you know, I'm talking to Paul and he's reinforcing his conservative credentials with me, and I'm not, uh, but we got on very well, good friends. Well, you know who's representing the Wisconsin judge that got arrested the other day? Paul Clement. Oh wow. Do you know who's representing, you know, one of the universities? Paul Clement. Stranger things have happened, you know, politically and philosophically, Nick, and if a guy like Paul Clement could stand up to the administration and represent some of these people who are being targeted by some of these executive orders and rules. You never know, is my point. I've been in some matters with him and, and against him. He was on the opposing side of a big case I had when I represented Dominion voting against Fox News and he was one of Fox's lawyers. But another interesting story, he's got an incredible integrity. He worked for a big Atlanta firm, King and Spalding, and then resigned because King and Spalding represents Coca-Cola, and he was representing the United States House of Representatives. On a side I was opposed to, the house was defending a law at the time that was anti-LGBTQ plus, and Coca-Cola didn't like King and Spalding having a lawyer. That was taking the politically incorrect side of battle over gender identity and sexual orientation and pressured the firm to drop the case, your client here, the United States House of Representatives at that time, the Republican House, and Paul Clement left the big shot law firm. And he's doing fine, he's doing fine. 

But uh, but it was an interesting kind of sort of feedback loop on our ideological culture wars and, and the role of a lawyer in that situation. And Mike, I get your impression on this too, Mike, but I mean, I think the answer to a lot of the concerns about, you know, what's gonna happen. In the legal profession, what's gonna happen to institutions of higher education, you know, what's gonna happen with our profession and so forth. I mean, I think there's a simple one word answer to all of it. It's integrity. Paul represents integrity. You know, Harvard finally stood up and they, you know, represented integrity, and sometimes integrity is tough, but we have this tradition going back over 200 years. In the legal profession, going back to John Adams, standing up for a very unpopular defendant in the colonies and saying it's my job to represent the law, the principles of the law, and it seems to me the same is true in our profession. I think that there is a simple answer, and there may be a cost to it. I'm not saying it's not costless, but it seems to me that's the simple approach. Yeah, I, I, I totally agree with that. When questions come up about, well, you know, The regulations are being rescinded, policies are changing. What do we do? How do we do our job? I just take a deep breath and say, we have like 50 years of best practices. Right? We can make our documents defensible. We know what's gonna be indefensible, right? APA is still there. We know arbitrary and capricious means. We know how to do our jobs to get these products such that they are defensible and they can last, right? And so, yeah, there's a lot of stuff going on in terms of regulation changing, redefining terms, right? But if we can at least can maintain our integrity. And develop based on our best professional practices that we've all developed over the years, then we'll come out of it at the end, when things shift the other way, and we'll still be doing the best thing we can on the environmental profession, in my mind. You know, when I, when I said, the need for training. 

On Monday, I said, you know, the world has this strange habit of like, keep spinning. It doesn't stop, and we could be here at a conference in 2029, just as easily talking about the pendulum swinging the other way under the Ocasio-Cortez administration. I mean, we could be. I mean, it's, it's the who's not to say, but the constant through the political wranglings that go back and forth, are values and principles, and you teach them at the law school, you know, we teach them as part of our profession, when the board members stood up and they, they swore an oath. You swear an oath for a reason, and we swear an o of integrity for a reason because like the Hebrew National commercial, you know, we answer to a higher authority, you know, and if we keep that in mind, that through line will survive even as the political curve goes up and down. And I think was it, integrity is a lifelong pursuit, right? It doesn't start and end at any one point. You can lose it at any time and it's hard to get back. It truly is. In the conversations I've had for folks, and this is for all of you really, but like, you know, it's when we see this ebb and flow, sometimes it's like, I'm a very present person, I, I'm like very, very present and I love people who are historians and other people who are futurists, and I'm kind of like, But right now, everything looks like it's on fire, and so I, I need perspective, right? And so I want to hear, you know, like, this is the first time for me, I've seen something like this. It doesn't mean it hasn't happened before, or it hasn't been, you know, strange or odd or different. So like perspective, that's what I'm asking for. What do we have right now? We have a ton of lawsuits, a lot of things are changing. What's your perspective? Is this unprecedented? Should we be freaking out? If so, what do we do about it? And Rod, I'll start with you. Well, so what I have said to um students is that this is not the first generation to go through extraordinary events. It's been the history of this country. We're only a couple miles from where the Civil War started at Fort Sumter. 

Uh, my parents went through the Great Depression and my dad fought in World War II in Korea, and I grew up as a college student at the height of the civil rights movement and the Vietnam War, and the nation went through 9/11. Every generation has challenges, and there's a lot for the current younger generation of students and young professionals to learn from that history, to learn that resiliency. I know we'll get into it eventually. I think for me, one of the interesting things right now about where we are right now, from a constitutional law perspective, which is my world, is that a lot of the battles that are going on right now involve legal issues in which both sides have really good arguments, and the law is very fluid and very unsettled. So the questions about the power of the president to fire any federal official that the president wants to fire, including commissioners of independent agencies, has been A contested issue for 70 years. It's the law has been settled for a long time, it could easily change in the next few months. The power of the president to take away grants that have been granted already to impound money is a debate that's been going on for 200 years. It's as old as the very early administrations in the United States, and we will see where that leads. The law is not entirely clear. And then particularly important to me are the questions surrounding the fundamental issue. If we give you money. If we fund Harvard with $2 billion or Any nonprofit, any university, we give business to a law firm, you know, enable law firm, you want to work for the federal government, you better. Not mention environmental justice, because that's no longer in favor. You better not mention diversity, equity and inclusion, because that's taboo, and the First Amendment issues governing the ability of the government to say, you want the money, toe the line, are complex. Maybe you want to hear it, maybe you don't, maybe let some other folks talk and then I'll get back. But it's up for grabs as to how that comes out, and that will really be an extraordinary matter as that plays out over the next year. That's how long it'll take. Right, the thoughts on that, yeah. Some of it is not complex. I'm sorry. 

You know, for the government to say, you're the beneficiary of our larges, and you cannot utter a word, is not freaking complex. I'm sorry, the right and power of the government to control your speech and the way you run your business should not be a difficult question. It's complex because there is an ecosystem of professionals and legal scholars on the right. that have matured an argument that looks rational, that looks colorable, and they've got money to fund it, and they could write fancy briefs and make it look good. There are certain things that are close, the firing of independent commission folks, I think that's close. The supervision of grants, sort of close, because we know that the federal government can slow walk spending money that's been, you know, authorized by Congress. They've done that forever, but preventing the expenditure, preventing a company from having or diversity program, because they, they get a few dollars. I mean, look how irrational that is. They're trying to say that NEPA doesn't apply because the federal government's hook into a project is small because there's not enough money, so therefore you don't have to do a NEPA analysis. But in the same breath, they're saying, we give you a small grant and therefore you can't say a word because we don't like it. And so, I don't think it's particularly close. And so, I think the only thing that's changed is that there's a lot of money and people that have the opportunity to write fancy. Briefs and to get to the Supreme Court and force 9 people to tell us what's what. So, let me fuss and tell you why I think it is a hard, a hard question. If that's all right. No, please, please. So, here's the legal doctrine. And the legal doctrine involves two opposing planets, two different rules that are in opposition. One rule is that the government can make a decision as to what programs it chooses to subsidize. And what programs it chooses not to subsidize. And it can attach conditions to its largesse, and you have the right to either accept the money. And follow the conditions or not. Now, that is an existing constitutional doctrine, and the famous case that decided that is a case called Rust versus Sullivan, and it's a very simple fact pattern. Congress created a program to provide medical care to the indigent. Including to women who are pregnant. And Congress had a caveat that said, if you are a doctor receiving the federal money on behalf of these indigent pregnant women, you are forbidden. To counsel them on abortion as an option. 

You can only give medical counsel to carry the child to term. Now, I think that's a terrible decision by Congress, but the Supreme Court upheld it. And it upheld it saying, Congress has the right to decide what it will subsidize and what it will not, and it can choose to subsidize carrying a child to term and not Abortion That case is in opposition to its polar opposite, the Valasques case, which involved lawyers, not doctors. Similar fact pattern. Congress created a program to help fund legal services to the poor, the legal services corporation, and it said to the legal aid lawyers, we want you giving routine legal services to poor people. But we don't want you bringing a lot of big shot challenges to the system. You wanna do that, do that somewhere else. You can't use our money to make systemic challenges to the welfare system, for example. Sounds a lot like the doctor case. The Supreme Court ruled the opposite way. And said, you can't use the leverage of funding to manipulate the positions that the lawyers would take. Now, those are two opposing legal concepts. John Roberts, the same guy that helped me when I couldn't remember what to say, tried to harmonize these. And here's the rule that he stated. It is Exactly what I've just said. And he said The problem is you can take any program and characterize it either way. You could either characterize it as we choose to subsidize this or not subsidize that, or you could characterize it as an impermissible condition attached to manipulate the marketplace of ideas. I'm actually agreeing with you on this. Here's how it should come out. 

All of the federal grants that were issued directly to advance programs that are now in disfavor, the government will win. So, grants, let's say, that were there to create environmental justice. That was the point. Or grants there to advance DEI, that was the point. That will fall on the doctor's side, that will fall on the Russ v. Sullivan side. The government will win those, because the court will say, we choose not to fund that stuff anymore, right? But where the government should lose, and this is really what you were alluding to. It's when they fund something completely unrelated to DEI, completely unrelated to environmental justice. We're funding submarine research or cancer research or, you know, they're cutting that too, and yeah, I get it. And oh by the way, if you're Stanford and we're giving you a billion dollars to do research on this stealth technology, but you happen to have it on the university somewhere, a provost's office that advances DEI, guess what? You better fire them and no longer teach, you know, critical race theory or you lose all the money. That's where It shouldn't be complicated. That's where if this court is conscientious and follows that doctrine that I've described, the government will lose. My first question is for you, are you like really sad you're sitting between two lawyers right here? Yeah. I'm not sad at all. No, I'm fascinated. You're fascinated because I am no lawyer. That is not my expertise at all. I'm fascinated because you're now about to see why I was the law student in history because I was, I was terrible last thing because I'm going to challenge the professor. I did that all the time. It never served me well. 

There's nothing wrong with challenging authority in a respectful manner. He is respectful, but here's where the things that you talked about those other cases, professor, were cases where Congress had spoken. In instances that I'm concerned about, Congress has not spoken. The orange guy has spoken, and that's a big difference in my mind. And the big difference is, if one person says, I'm not gonna do this because this is not my policy and the government's policy. Good for you to say that. Let me hear from Congress. And if, and if, and if, if Speaker Johnson and if the Senate, if the new Senate President can get together the votes and rescind that money and to come in direction, I think they're gonna win. But right now we're not doing that. We're hearing one guy saying don't do that, and Congress is standing moot. The separation of powers isn't working. And listen, I'm on your side on this. But let, but let me tell you something that already existed in almost all federal grants. If you actually read the fine print, like I had to read the fine print of the grants our school receives, there's a sentence that says, we can take this money away. If it no longer meets the priorities of the agency. So the State Department defunded a number of our programs because the environmental things we were doing in foreign countries no longer aligned with the priorities of the State Department. And that is also in the code of federal regulations. 

Listen, I hope these arguments lose, but it's not a slam dunk that there will be very conscientious, independent federal judges who will say, you know, It's always what's the case that the agency could change its mind, and if it changes its mind, you're out of luck. I hope that's not the way it comes out, but I'm, I'm saying I don't think it's gonna be a 9-0 run if you know there's two, you know, it's the it's in this court, yeah, and, and so one other quick thing I do want to say is don't make the mistake of assuming as some of these issues reach the Supreme Court. That they will divide on the political ideological lines that you would be thinking. So those of you that have, you know, sports book, you know, betting where you can bet on things and you want to bet on the Supreme Court, you know, don't just assume. That the 6 conservative justices are going to back the president, because what I was gonna talk about a year ago when I first pitched this, now it's obsolete, was that the conservatives have been leading a charge very skeptical of executive power. That was the overruling of the Chevron doctrine that you defer to federal agencies. That was the EPA versus West Virginia case that used a kind of version of, of the non-delegation doctrine that Congress can't delegate too much to federal agencies. It got a new name there, the major question doctrine. If the issue's a big deal, you gotta get Congress to do it. You can't just do it, EPA on your own. Those conservative ideas would restrain the current administration. If they play it straight, and I kind of think they will. I have, I have that naive faith that they will. I don't know exactly how the votes will play out, but I can easily see a number of the conservative justices saying, we didn't let President Biden do this. 

We didn't let him cancel $460 billion in student debt, all right? And we ain't gonna let you do it either. I want to follow up a little bit on that cause I think fundamental things that I see is, right, it's this Question of separation of powers, right? And one branch really not defending their power at all, right? And the other one, in my mind, overreaching, right? How does that kind of go the other way? How does Congress, you know, decide that they're gonna grow a spine and say, no, actually we have some power here and you're overstepping. Are we gonna see that? or is it gonna wait two years to see if there's a turn? I think it's the latter. I think Speaker Johnson has made it clear, and even Senator Foon, whose predilections oftentimes were more moderate, and made it clear they're not gonna do that. 

So it is gonna have to wait a couple of years to get that pushback, I'm afraid, and then it's gonna be, you know, the awful scenario that people are most worried about is that the judicial branch steps in, and consistent with what you just heard, you know, there may be decisions to say, wait a minute, what's good for the goose, good for the gander, we pull back on Biden's authority, we're also gonna pull back on Trump's. And a decision that could be written by a conservative judge or a liberal judge doesn't matter. And then the executive branch says, you know, thanks for that advice, but we're doing something different. So I, I think that's the nightmare scenario, Mike. I think the ballot box is the only way to, to grow a spine, and we're seeing, you know, some of that already out in the streets. Like I said, I've never See a situation where 50,000 people showed up, like March after an election to hear Bernie Sanders. 50,000 people. That's crazy to think that they're doing it. People in my hometown in Rockville, Maryland, you know, 100 to 150 people protesting outside the Tesla dealership every Saturday. It's like I'm coming home from services in my synagogue, and there they are every day. I'm going to services, they're going to Tesla, you know, I mean, it, it's a different type of dynamic, so, no, I think to count on Speaker Johnson and Senator Thune, you should definitely go to the sports book and do something else. Uh, but no, it's gonna take the, the midterms to at least start that. Yeah, just kind of to follow up on that. So, cause it's the goose and gander kind of discussion, you just mentioned or statement you just made. So, You know, practical, we see a proposed rule, right? Not a proposed rulemaking to redefine harm under the Endangered Species Act again, right? 

The Babbitt versus Sweet Home case decided by the Supreme Court, and that was a Chevron deference to the secretary on the definition of harm, right? We see the administration wanting to use the dissent's opinion in that case, right, as this is how we should define harm. How do we reconcile that with the fact that They need a deference to begin with. And so if that's what their approach is, are they gonna be able to get it? Because it seems like Goose and Gander saying, well, you know, we're not giving agency deference the first time, or we're going to get it the second time. And they use the same argument for the Mike Draper Treaty Act stuff as well, right, but harm and using Scalia's dissent. And so I'm just kind of curious as to your thoughts on deference as it relates to, you know, going from a majority to the dissent and, OK, now we're gonna go this way, right? You know, we're trying to get the, we're trying to get the whole panel here. I hear you. So just the 2 seconds of this really quick and then you should go back. The 2 2nd answer is that the Chevron case was deference to deregulation, and now all of a sudden you have Loper Bright, where it's, you know, we're not doing that anymore, and the worm has turned, where, you know, the conservative movement and said we're anti-regulation. Well, that's how the case started. It was deference to anti-regulation. The Sweet home case is interesting, Mike, because the majority wasn't just talking about deference to the agency, it was talking about the breadth and scope of the ESA and congressional intent to have as broad a definition of possible to include habitat degradation, in addition to taking a species by the neck and, right? That's what they were saying. It's a very broad statute. 

So, I think there's a couple of things at play there. One, the conservatives are gonna be burned by Lore bright, cause there's gonna be less. Deference to deregulation now because they have to come up with a rationale for it. A and B, I think in the ASA world, the statute is still extremely broad and the congressional intent is still very broad. No more laws, sorry. No, no, no, no, you're totally fine. I need to do it too, but Rod, anything additional? No, I'm good. Oh wow, OK, perfect. So how about those, uh, those tides, right? Charleston be flooding sometimes. No, it's, it's really funny. We have 3 lawyers up here, really, and so. Siobhan and I are just kind of like, so you wanna get coffee or you know like yeah, yeah, cheers, yeah. No, but I mean to tie in not only what's being discussed here with tides, uh, you know, I mean, one thing that was said earlier was about resiliency and I think that that is something that stands true for what's going on not only in our profession, what's going on in the government, what's going on in the environment, the tides, everybody's trying to be resilient and they design of engineering things and, you know, in our jobs, we're just trying to all work through this together and hopefully we come out better in the end. Yeah, yeah. Well, I mean, fundamentally, right, like Charleston is a great example, right? There is a flooding problem. 

There is a challenge to that. We can have all the cases and all the law changing all of everybody wants something to be different and Charleston will still flood. So, In light of all that, there's a lot of regulations coming out, there's a lot of stuff that's before the courts, and Charleston still flooding. So, how do we handle, like, you have projects to mitigate that flooding. They need to be there because if you don't do them, the city will flood. So how do we kind of navigate that landscape? Do you see any changes to the way you guys are doing things at in South Carolina about how are we handling the, was it changing climate? For those of you here yesterday, to adapt to that. We have to do it, so. Well, I think Tom spoke on that quite a bit yesterday, and you're not going to stop the flooding in Charleston. It was built below sea level. It's sinking. Sea level is rising. You're not going to stop the flooding in Charleston. I know years ago, the DOT had a project to try and capture some of the flooding underground storage for some of the flooding, which has helped, but you're not going to get rid of it completely. But, you know, having that balance of what Tom's talking about to have all this preserved land. And having the undisturbed forest to absorb the water that's coming from upstream. We can't fully control what's coming from the sea, you know, that the sea levels are rising, but trying to address those micro manifestations that we can within our state and designing for resiliency as much as we can, can help, but you're not getting rid of it. Yeah, so it's going to be harder to do that. I think for the next at least couple of years, is that something, are you stressed out about it? Is it like, do you like, there are days where like I have read the news and I just go to bed and my eyes are open, and you know, I just like, you know, same kind of thing, or you, or do you have some positivity or some hope in some area? I always have positivity. I always have positivity. One thing that I read recently that really stuck with me is that before modern society, you only had to deal with the chaos within your own village. 

And I tend to not get engrossed in all of the news because I can't deal with the global. You know, chaos. I have to deal with what's going on in my village, within my control and my reach. So, that's just the approach that I take personally. And one other footnote, Charleston is famous for its tides, of course. Pat Conroy, the great novelist, wrote the great book, The Prince of Tides, but it's also famous for its ties. And I got this in downtown Charleston beautiful. That's, that's great. So, so I should just stop reading is what you're telling me to do. That's what I heard. That's a great book if you haven't read it, you need to read it. No, I meant the news. I mean the news, yeah, yeah, yeah, I definitely stop reading the news. Yeah, yeah. All right, so we do have, we have about 15 more minutes, and Rod, I wanna kind of defer to you here on where we want to wrap this up. There's a lot going on. We have a lot, like I say, there, there's a lot of constitutional law, where we had some discussion about that already. Like, as you look at the landscape, where do you see us like if we're here next year, right? What are we talking about? And what should we be focusing on and how do we navigate through this real quick, we will be here next year. It's not an if. Oh, did I say that Alaska, not here. Well, yeah, we have the organization talking. We will be here next year. Where do we focus? What should we be paying attention to and I'll defer to the others on that. All right, Fred, you first. I think what will be most predictive of where we'll be next year is uh whether we see the current movement of protest, resistance, mature and sustained. If it does, I think we're gonna be in a very different place. 

OK, we're gonna be a very different place. So, I think it's more of a political issue to me than it is a professional one. I think, as a profession, we continue to monitor, we continue to understand, and we continue to adapt, but my sense is, is that the principles and values will Supersede efforts to try to change the undercurrents of rules. Yeah, we're going to change the definition of harm, so it doesn't, you know, include habitat degradation anymore. But if you're degrading the habitat and species are being harmed, that will prevail. We'll understand the reality of that. But if All that is happening, and the public and the world around us has decided to shrug its shoulders, or the world around us has decided that it's just too hard to show up at Tesla every Saturday, and we go back to our normal stuff, then we're in a heap of trouble. So, my sense is that if we look around us and in our country, and the citizens decide that they're gonna continue to Be vigorous and vigilant, and they're gonna go out there. I'm not talking about a political outcome. I'm just talking about the sense of the country. If the sense of this country is what we're seeing now, I think we'll be in a very different place. If the sense of the country is we tried, we gave it our best shot, and now we're just tired, heap of trouble. Right. Ron, any thoughts? Well, I think one of the real problems we have as a country right now is the inability to come together with any common set of facts or truth or perception of reality. The famous line by Senator Daniel Patrick Moynihan, which is everybody's entitled to. 

Opinion, but they're not entitled to their own facts. When I was involved in the Dominion voting case against Fox News, one of the striking things was how deeply, almost with religious fervor, half the country really believed that Donald Trump won that election and that it was stolen. By these voting machines. They really, really, that was their fact, their truth, truth. And almost using the word truth in the way that a devout person would use truth as a kind of article of faith, as opposed to a scientific truth or something, you know, you could verify by counting ballots, and then half the country on the other side. And to me, the discouraging thing, I know I'm generally an optimist, is I don't see that improving. Right. And I don't know what we do as a country to get it to improve. One other real quick thing I mentioned before growing up at the civil rights movement in, in Vietnam, it was a much simpler landscape of discourse then. Most folks were in a town that had one or two newspapers. My own sweet home, Chicago, there was the Tribune and the Sun Times, you know, more liberal paper, more conservative paper. And there were 3 or 4 television networks. Everybody either watched Walter Cronkite or you watched, you know, Peter Jennings. There was a shared sort of reality. And that has completely disintegrated, and people go to their own outlets where they're reinforced in their own views, and that's tough in a democracy. And that actually opens the door for someone like the current president. To just by sheer dint of repetition, say whatever he wants, and it becomes the reality for so many folks just by it being endlessly repeated. And I'm not trying to be partisan particularly, but I'm, I'm sort of That piece of it discourages me, to be honest. 

So don't read the news. That's what. Well, I mean, I think what you're saying, you know, back in the day, there was just your community and what, you know, what was going on directly around you. And I think that we're gonna have to get back to that somehow. And not just having these debates on the internet with strangers and trolls, getting back to that community, getting back to the, maybe not back to you, but getting states to take action and step up to protect what they have, so that it's not discourse. Yeah, and, and I'll say, like I say, we're close to time and I want to give everybody a chance to say something before we wrap up, but I'm also an eternal optimist. I wake up every single day thinking it's going to be a good day. And I thought you said then you go to bed with your eyes and then I go to bed. That's true. That's 100% true. The day ruins it, but I start every day. Very positively, um. And so I want to end this very, very positively. Look, I think my concluding remark would be this in response to, you know, Ron's excellent comment, which is this in the 60s, the phrase of the resistance movement of protest was question authority. That's what people always say question authority. And the other thing you heard people says, you know, challenge of the man. I'm challenging the man, right? So authority, the man, who is authority? Who is the man? 

Oftentimes it was like the government. You know, the corporate honcho. It there was, there's a pretty focused thing, and I think what Rob pointed out, and what the, what we have to sort of chain ourselves now, is that when we say question authority, the authority Could be Joe Rogan. The authority, you know, could be Joe Rogan just as much as it is the government. And so, you know, one of the things that we may see is if we reinvigorate the notion of questioning authority like it was in the 60s, perhaps the optimistic view of what Ron said is that people will wake up and say, I'm gonna question everything, not just what I hear, but I'm gonna question everything. And when people get burned. When people get burned and say, you know, what's up is up, and you know it's down, you know, the president says the other day, oh interest rates are coming down. That's what he said. They are not coming down. So when people get burned by this too often, I think the notion of question authority will extend even to this unbelievably diverse ecosystem of words and noise that we hear. And I think that is a possibility, because I think people just don't like being told what to do too much in America. And I think that's my concluding thought, that I think if we all question authority, even on Either sides of the camp, there could be more coalescing to the middle. Very cool. I don't know how to follow that. 

Too bad. I think that questioning of authority, it can be divisive, but it, it is, but trying to find common ground and where people stand on things, when you look at the, the actual details, not just like, which side of the voting ballot did you stand on when you look at the actual details and have those discussions versus just spouting off information that that's where the collaboration can occur. And it has to happen at a smaller scale. It's not gonna happen, you know, half the nation is not going to communicate with the other half of the nation to fix the problems. It's got to happen on a smaller scale. And your neighbor, you're like, hey, this floating is crazy, right? We should do something about it like that. Yeah. Yeah, so I think there's a John Cougar Mellon Cap lyric that goes, I question authority and authority always wins, but you know, put that song out of your head. So, uh, sort of on the optimistic side, I was a football player growing up in Chicago and our after we would lose a game, and we didn't lose much, we had a good team, but after we lose the game, a coach would say, uh, boys, don't get your daubers down. Now we didn't actually know what a Dauber was, but we got the we got the general idea. I wonder if there's room for optimism in just localism. 

So think about Charleston. You can eat great food in this city. Yeah. And it's one of the places where the kind of farm to table thing really took off and, and authentic low country cuisine and restaurants didn't turn their back on that. They embraced it. And that's a beautiful thing. And maybe, you know, things like flooding in Charleston or flooding in Vermont. My wife's here, our house flooded in a place we never dreamed, we didn't even know there was water there. Maybe that kind of returning to the village is a place where good things can happen. There we go. I love it. So I say I wanted to get another shout out for Aldoa. Thank you to our panelists here for doing all this. Thank you. Thank you, panelists. Again, it was wonderful discourse today. Yeah, yeah, thank you. Thank you.