The Endangerments Clause, Updates to ESA, and the Future of WOTUS with Fred Wagner

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

On today’s episode, we talk with Fred Wager, Principal Environmental Regulatory Advisor with Jacobs about The Endangerments Clause, Updates to ESA, and the Future of WOTUS.   Read his full bio below.

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Showtimes: 
0:29 - Cute animal facts!
1:28 - Navigating travel chaos
10:39 - Interview with Fred Wagner starts
16:15 - Unpacking the Endangerment Clause and Major Questions Doctrine 
27:47 - The future of WOTUS and endangered species act interpretations
37:44 - Examining Section 106 and historic preservation challenges
40:53 - Optimism, regulatory resilience, and concluding thoughts

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This podcast is produced by the National Association of Environmental Professions (NAEP). Check out all the NAEP has to offer at NAEP.org.

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

Guest Bio:

Fred Wagner focuses on environmental and natural resources issues concerning major infrastructure, including surface transportation, energy, mining, and commercial project development. Fred advises clients on environmental reviews under the National Environmental Policy Act or equivalent state statutes. He also helps secure permits and approvals from regulators under a variety of federal programs, including Section 404 of the Clean Water Act, the Endangered Species Act, the Clean Air Act, and the National Historic Preservation Act. Fred provides strategic counseling regarding implementation of the full spectrum of federal environmental programs, as well as U.S. Department of Transportation (USDOT) surface transportation grant management and safety regulations. 

Prior to joining Jacobs, Fred represented a wide variety of developers, public entities, and businesses in environmental, land use, and natural resources litigation in federal trial and appellate courts across the country, from citizen suits to government enforcement actions and Administration Procedure Act (APA) challenges. Most recently, Fred was counsel of record in the Seven County Infrastructure Coalition NEPA case before the U.S. Supreme Court.

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

Transcript

Hello, and welcome to ER with your favorite environmental nerds, Nic and Laura. On today's episode, Nic and I talk about flight delays. We interview Fred Wagner about the endangerment clause, updates to ESA and the future of waters. 

And finally, we haven't had any fun facts about cute animals in such a long time. So here are a couple of facts on the cactus Ferruginous. Uh, they're doing this to me again. Pigmy owl. Ferruginous. Yeah. Somebody can mail in to us how we say this. It's a tiny, roughly 6.5 inch tall, reddish brown raptor found in southern Arizona, Texas, and Mexico. They were listed as threatened in the US in August 2023 due to habitat loss. These non-migratory owls inhabit  Sonoran Desert scrub nesting in saguaro or tree cavities. I'm just going crazy on this one. These are non-migratory owls that inhabit Sonoran Desert scrub nesting in saguaro or tree cavities. They are active at dusk and dawn. They eat insects, birds, and reptiles. Go look them up because they are adorbs. Yeah! 

Hit that music. 

This year, NAEP is hosting their annual conference and training symposium in Anchorage, Alaska from Monday, May 11th through Thursday, May 14th. The conference is a great opportunity to learn about new projects, share technical knowledge, network with other industry professionals, and engage with environmental leaders. Not a member yet? Join NAEP with special discount code EPR for $25 off your membership. Register now at www.NAEP.org.

Let's get to our segment. 

Yeah, so some of my teammates just went to the airport and they're a little younger, who haven't experienced a whole lot of things in life on their own. And they texted to say, oh, our flight was delayed, and then calls me in a panic about 20 minutes later, like, well, they're going to be overlapping each other and we're going to, we're going to miss the next flight. And, you know, can you, can you look up what options are for the next day? And I'm like, well, I can't tell you what options they are available for you, right? Like, I can see what flights are going, but I can't see what you can go on. So you have to talk to them. And then I hung up and I texted them and I said, you know, they're supposed to put you up somewhere. So ask for a voucher, ask for the voucher to the place, because if you don't ask, they won't give it to you. You know, so she, they just replied now and said, you know, we got our, we got our flights changed, all excited. They're still going to get home today. Um, so it's not the crisis that they thought at first, but it's just like, awesome, good for you, pat on the back, life lesson achieved. I'm proud of you.

Right, and it's, oh man, I, there's so many stories about flying, and this is maybe this is like a, a fun place to start because it's like, I remember you just reminded me of two fun stories of things going spectacularly wrong because I'm type A, right? Like it, there's, I remember there's a flight and I'm like, I'm gonna change my. Flight, no, your, your flight's canceled. Uh, you're gonna get put on a new flight. I'm like, well, I'm not gonna wait. I'm gonna check this is in New York in JFK. I'm gonna check the next flight and I'm gonna get on that flight. And that's exactly what I did. I'm like really proud of myself. I'm like, that's right. All, everyone else is gonna have to wait behind me, and they're gonna be so sad when their flight's not, you know, changed or whatever. And then they were like, hey, we're actually canceling that other flight. And so you're gonna be put back on your own flight so long as you didn't make any changes to your original reservation. So I went from having a flight to not having one to getting one to losing it, and I ended up having to drive back to DC. Like that was, I was so, it was just like, I could have waited. I could have waited like another, it would have been like another 30 minutes. I could have just waited, but I couldn't, I couldn't do that. I didn't, I wanted to know what I was doing.

And um I've seen those people in the airport when that happens. I've seen like, when you get the announcement, they just lose it immediately and they're like, canceling flights, making changes, and they're like, OK, sorry, we're actually going to go as planned. And you're like, all those people have like, scrambled for their next, like, what am I going to do? Almost like a trick. It's like they got, yeah, like now you have to rent a car from us. And uh they're like, we wanted some people off of this flight, so here's a clever way to do this. Yeah, and that was tough, but I, I wanna share the other one because this did not go as planned, and honestly, like, I didn't, this wasn't a really Taipei moment. It was just kind of like, I had a flight that was supposed to land at 4:30, and it got delayed for hours, and like the other flight I could have gotten on was at 7, it would have landed at 7:30, and I, I was like, they say it's gonna get fixed. I am not going to do this. I am just gonna wait and I will get back before this, whatever, right? And of course, the 7:30 flight landed a half an hour earlier than the 4:30 flight that I was on, and it's just the way it worked out.

But my main memory of that story is just someone from, I think it was actually Ethiopia, who just happened to sit next across from each other, and he was learning English and was trying to to teach people the English he's learned. That's, that's kind of what he did. He, he learned it. He was teaching other people, and we were talking, and it was just like a delightful conversation. We talked for like, I don't know, 3 hours, just somebody I'd never see again. But it was the nicest, most polite, what is the right word, um, it was just like a great convers sometimes you just have really great conversations, and it came out of like frustration. I was annoyed, I was like disappointed, and then as I, I just forgot that there is even another flight, you know. So, yeah, it could have been way worse. So I was kind of happy that that happened in, in some weird way.

Yeah, I mean, it does. This is one of those times that you could say there are two types of people in the world. There's the type that will say, OK, well, this sucks. But maybe it means I don't die in a fiery plane crash today. And then there are other people who are like, Oh my God, this is so inconvenient for me. And then just go off the rails. And I'm sure there's millions of steps, of types of people in between those two, but I've done both. We probably all have if we're honest with ourselves, you know, but it depends on, you know, what state of mind that you're in at the time and, of course, and all of that. But if you can be the type of person that just says like, well, this wasn't meant to be, at the same time, taking some sort of control of it, because like I said, if you don't ask for a different flight or the vouchers, they're not going to give them to you.

Yeah, yeah, that's true. That's true. And see, you, you're sparking all kinds of stories. I also remember one time there was a storm. They canceled every flight but mine, and it's 10:30 at night when this starts, 12:30, we're still supposed to fly. The crew shows up looking like they're dead, like literal zombies, and I remember being like, I don't know if I want to get on this plane. Cause it looks like I'm better at flying it than they are right now. We get on, we sit there for an hour and a half, and this is like right after they had like, you can only sit on a plane for 30 minutes or else mandate. So we immediately that immediately was off. Then they told us to get off the plane and gone. There was like, there's no hotels cause every other flight was canceled. There's nothing for us to do other than wait for the next flight in the morning. And it was just, it was ice cold. It was like it was the coldest the company's ever treated me, actually. It was pretty, pretty intense. I was like, wow, I can't believe that actually happened.

But, yeah, yeah. Sometimes they're good about it and sometimes they're like, well, you're screwed.

Yeah, and there was no one to even, there's no vouchers to get. They were like, they were like ghost poof, you know, out in the wind. But, you know, I actually kind of felt OK. I was like, I'd rather sleep in this airport than get on a plane with pilots that can't fly because they're sleeping themselves. Right?

Yeah, I mean, it's just that has to be like the attitude to take if you can get yourself there because it's out of your control for one thing. And the other thing is, is it just. This could be the universe moving things around. So this isn't your last flight.

Yeah, yeah, no kidding. No kidding. Have you ever had any come on?

Oh, tons. I mean, I actually do feel pretty lucky from some of the, some people are just like, every time I fly, this happens or whatever. And it's like, OK, does it or you just make things up. But if every minor. Inconvenience is going to be a big giant problem. And of course, it happens every time you fly. But I feel like I haven't had a lot of those major issues. There was one time I was flying to Boston in the winter, and you know, when flights crossed over, and I made it there, but my bags didn't. And I knew they weren't going to. And they were like, Oh, yeah, they'll be there. And I was like, no, they're not. And I'm freaking out because I'm like, they're not going to be there. This is impossible. And of course, they weren't. And then there was probably like the most pleasant one was in Iceland. And we ended up getting delayed something, but they were just like, here's the vouchers. Here's the, you know, spend time in our hotels, we want you to stay, you know. And it was wonderful. And we actually got to witness a, I don't know what happened exactly, but I remember there were people searching for someone with guns outside of the hotel. So it was kind of like dinner and a show.

Yeah, yeah, not, not a show you're expecting, but a show nonetheless.

Yeah, I guess because the area that we're in, you know, it's Iceland is very safe. This stuff never happens. So it was like a thing happened and we got to witness it.

Wow, that's wild. Yeah, golly, I don't even think I told you this before. Like the most recent bag fiasco I had was like, it's like your bags, uh, have landed with you in Minneapolis. I'm like, that's great. I'm in Seattle. Uh, so I don't know what that's about. And then they're like, OK, don't worry, we'll send them to you. And they sent one bag first, right? And then, and then the others, and I was like, OK, we're gonna keep the one bag until the other two get here. I'm like, No, you're not. You're gonna give me my bag. That's what you're gonna do. You lost it. That's not my fault. This is not my fault. And like that's what they were gonna do, but I'm like, I need a bag. I need that bag. This is like this is important. I actually like. Equipment that I need to use this stuff for and it's like I don't, right, yeah, no, that's, that's very interesting logic, yeah, and it's like, oh yeah, so it was cheaper for them if they had, would they wait for all three, but it took 2 more days for it to get there and I'm like, yeah, yeah, yeah, I needed that bag. Yeah, it's got, it's actually had my toiletries in it. That was the main thing. Could I go buy some more? Yes, but I mean, come on, like just give me the bag.

Yeah, it's sometimes endlessly frustrating, but, but let's not frustrate people with an endlessly long conversation. There we go. Let's get to our interview.

Perfect. Welcome back to EPR. Today we have Fred Wagner, principal environmental advisor of environmental solutions for Jacobs. He's back with us again to break down what environmental professionals need to understand in the current regulatory landscape, which I'm sure is nothing, right? As we always say, there's nothing going on and I just made it through the ice floes that are finally melting here in DC. So, uh, there's some. Good news.

Yeah, it is funny that you say that because the snow is supposed to melt. OK, like what's supposed to happen is it snows and it's really fun and then it goes away. But we had 3 straight weeks of it being under freezing, which does not happen here, and it was kind of like, and people didn't dig their cars out. There wasn't a, it was just, we just stayed home for 3 weeks. The schools at home in Montgomery County. They're already over the number of days that they have set into their calendar. And so they're trying to get dispensation from the governor so the kids don't have to be in school on July 4th. Yeah, so hopefully I, I hear there's a rumor of a possibility of warmth coming in. So, in theory, yeah, in theory, hopefully we did have one other snow that did do what it was supposed to do. It did, it did melt. It melted the next day. That's, that's how we do it. Good, good snow.

Oh man, how are you, Fred? How are you doing?

I, I am good and I have been pondering this whole fallacy of work-life balance. And I say that not because I don't have it, because I do. I'm pondering it because sometimes, you know, the life part of work. Life intercedes in your consciousness and your brain in a way that's, you know, unexpected, but sometimes lovely. So for the first time in many years, both of my adult children are in, you know, pretty serious relationships with people that I love and it looks great. But just wrapping my head around that as as the dad, you know, is, it's almost kind of like a full-time job. That's what I'm saying. This whole phase of work-life balance doesn't make any sense because I'm thinking about it all the time, you know, in a good way and it's making me happy and all the rest. But, you know, just getting into that phase of parenting and what that may mean for the future and all that kind of stuff is just, it's kind of an all consuming type of thing. So I am thinking about my job, you know. I, I am concentrating, I promise, uh, but I'm equally concentrating on all this stuff, all this good stuff happening with my kids, so it's a. It's a funny thing because I, I think when people strive to come up with that balance, it's, it's something where you can't come up with a formula. You can't come up with a proportion that's good or bad, and sometimes your mind just focuses on some of those things in a way that may seem distracting, but is not. It's a distraction. It's a good, it's a good distraction.

So I'm really pleased that, you know, the complicating factors, you know, one of my kids' relationships is halfway around the world. In Australia. And so that that has, you know, things with it. Um, so I'm, you know, of course was researching, you know, my new company's offices and yes, we have, we have an office in Sydney, Australia. So there you go. There's possibilities.

Yeah, so it's it's a great thing. You never know when stuff is going to happen, obviously. The old joke, man plans, God laughs.

Yes, indeed. Truly. I feel that way sometimes, but yeah, so I'm trying to fit that in with everything else that's going on on our, on our professional front that we're going to talk to. But it's a great time and, you know, my wife and I are pretty happy about it and just looking forward to what comes next.

I know, you know, I love that you said that phrase too, because it reminds me of like, I remember going into grad school and I'm going to get my master's degree in biology. Everyone's telling me there's going to be a million environmental jobs. This is, this is like the way things are going. It's going to be super great. And that was in 2007 and so I left in 2009, right in the middle of the Great Recession. So all of that promise and goodwill and great planning on my part, gone, but it is how I ended up working on policy and having the career that I do have. So it wasn't what I wanted to do. It wasn't what I planned to do, but it worked out great.

So I mean that's kind of. The story of my first job was something similar. I'd applied to the Justice Department honors program and they literally lost my application. And so back then, when you don't hear, you just don't hear. There's no internet to sort of check on the status of your application. They just lost it and I got a call like way late in the recruitment process saying we want to interview you. And I said, well, that's great, but like I already accepted another job. And they said, yeah, but we lost your application. We really want to interview. And I had to go to that other employer and say, you know, would it make you really angry if I had this interview? And to that person's credit, that company's credit, they said, no, I, we would never stand in the way of you looking into the opportunity working at the Justice Department at that time. And so that was complete serendipity if. But he hadn't stumbled across my application and done that. Who knows?

So yeah, all the best plans kind of go up in smoke sometimes and work out.

Yeah. And so what a seamless segue to, OK, we have plans and then there's what happens. That's where we are right now. A lot is happening. I'm not even sure where to completely start, but I want to give you a shout out for doing something you're calling regulatory rundowns at Jacobs. I think it's actually pretty cool. You're just taking, you know, 3 to 6 minute snippets of what's happening. And the most recent one you did was the endangerment finding, so we might as well start there. What is that? Why is that important, and what do we do next with it?

Yeah, for folks listening, the endangerment finding is the phrase coming out of the Clean Air Act that allows the agency to issue rules for pollution for air pollution that endangers public health and safety. That's the endangerment finding. And the endangerment finding in particular that we're talking about is that associated with greenhouse gas emissions. And so early in the early 0s, people were urging EPA to do that with respect to greenhouse gas emissions. And at the time, EPA was not anxious to do that. And so there was a movement to force the agency to do that, a petition to declare the endangerment finding. And uh that controversy made it all the way to the Supreme Court in 2007 in a very famous case, Massachusetts versus EPA. And the result of the case was a 5-4 ruling, the narrowest of margins that said, EPA, you did have that authority. To issue the endangerment finding. And then a couple of years later, under the Obama administration, that's what they did. And then subsequently that led to a whole variety of regulations to automobile emissions, the power plant rule, and all the rest.

Well, fast forward to now, and the current administration is taking an opposite view of the endangerment finding and issued a rule basically repealing it. And the the whole purpose of the rule besides The outcome is to tee up the very same legal controversy that happened back in 2007 in the Supreme Court. The importance of that, of course, in that 5-4 ruling, none of the five who were in that majority are on the Supreme Court now. Zero.

That's wild. Oh my gosh.

It's been 20 years almost, if you think about it.

No, don't tell me that. I don't want to know.

Yeah, you're right. You're right. It's true. And so the question is, you know, what would happen? If that gets back to the Supreme Court. And that was the goal of the administration. It wasn't just repealing it. It was like repealing it in a way where they could potentially get the opposite legal conclusion, saying, no, you don't have the authority to regulate greenhouse gasses. And in a very bizarre type of way, the court's ruling just recently on tariffs. Yes, on tariffs may have strong implications for what may happen in the future for the endangerment finding.

Interesting.

Well, the principal basis for the ruling on tariffs was that the statute upon which which the administration was basing its proposals to tariffs, implement tariffs was not expressly clear enough to take such important, momentous type action that will affect the economy, not just the local economy, but the international economy. And there's a principle that the Supreme Court has instituted recently called the Major questions doctrine.

And Justice Gorsuch, who, who wrote a very long opinion concurring in the 6-3 ruling, striking down the tariffs, said, you know, I'm sorry, when we have something that's so important, so fundamental, so foundational to the government's functioning, if it's not abundantly clear that Congress intended it to be that way. An agency, a White House can't do it on its own. The Congress has to. And if you're sad about that, oh, it takes Congress so long to act and it may never happen. I'm so sorry. That's how the process is supposed to work. And so that's the major questions doctrine. And so a lot of people are thinking, and I'm one of them. That this whole principle of major questions may also come back in the context of the regulation of greenhouse gasses. The Clean Air Act doesn't expressly identify GHGs. It doesn't. It just talks about pollutants. That's fine, but To implement rules that have such broad application across the entire economy. Again, automobiles, transport, uh, you know, power plants, etc. is the principle the same that for before an EPA can interpret its authority under the Clean Air Act, should Congress be something, could Congress be so express, so explicit before that could happen? That's the major questions doctrine. And so while it seems strange to sort of tie the two together, there is a through line and there's there's other legal theories that the administration is advancing to try to defend its proposal. But this major questions doctrine could really be it. And it's going to take a couple of years to percolate through the legal system, but I preview it now because if we have this conversation in 2, 2.5 years, we very well may see that type of results from the Supreme Court.

Interesting. And so it's really not really about science. I've heard people talk about. Well, you know, there's science backing up this. That's not what they're trying to go after either, right? It is legal. We're going after the legal process, how it's written and how that's interpreted more than the science behind it.

Correct. And I think that's was deliberate, right? So that for those of you who may be familiar with the initial EPA proposal on the endangerment finding, there was A solid like 30, 35 pages on the science. And it was based on a very controversial report that was written by the Department of Energy. And it said pretty interesting things. Again, I'm trying to be as objective as possible. Things like, you know, They really haven't sort of calculated the benefits of climate change, like greater growing seasons and things like that. And they also questioned some of the conclusions about how quickly climate was changing, temperatures going up, sea level was rising, etc. They questioned the foundations of some of the things that have been out there for many, many years. That was part of the draft rule. It was excised from the final rule. So in other words, we may believe in our heart of hearts, we, the administration, that this is the truth of the matter, but we're not basing our proposal on that. It's literally just on what authority do we have under the law. And that was again a very purposeful strategy decision to tee up the case and the proposed rule was out like a matter of 18 minutes and there's already a petition challenging it, filed by, I want to say a coalition of like 12. Uh, different major organizations, a lot of whom were involved in Massachusetts versus EPA 20 years ago. Some of the same people. I, I'm, I'm, I'm certain that's, you know, and, and so that's gonna be, be teed up at the appellate court. That's called the DC Circuit Court of Appeals, and they'll be briefed and argued and a ruling sometime next year. And then whatever happens, whoever wins or loses, whether the administration wins or the challengers win, that'll then be appealed to the Supreme Court. And it's highly likely, I won't guarantee anything, but highly likely that the Supreme Court will say, OK, in light of all this and everything we've read, let's revisit this in the context of what we said in Mass versus EPA 20 years ago.

Yeah, I mean, I, I think it's a great place to kind of wrap that piece up, but it's kind of interesting, you know, we have quite a few cases come through, quite a few things that are probably going to make their way back to the Supreme Court. Can we take a second and just kind of remind folks like what, like the Supreme Court has a bunch of different cases it's gonna have on its, uh, docket. How are they gonna decide? Is it, is it literally these major cases we have for the environment, are all of those going to go back in front of the Supreme Court? Like which ones do you see maybe, maybe not going in front of them?

Yeah, I mean, what we're seeing now, Nic, is what I'm calling kind of like the next phase of the administration's approach to environmental regulation, deregulation, if you will, that was moving at breakneck speed in the first year of the administration, right? So it takes some time even for an administration like this one that hit the ground running. It takes some time to put proposed rules out, whether it's revocation of rules, amendments of rules, different rules, just takes time. And then it takes time for parties to figure out what they wanted to do about it and they file challenges. And those challenges take time to percolate through the court system up through in some cases, trial courts, in some cases the appellate court, and then all the way to the Supreme Court. You see what I'm saying? So, You know, certain rules will survive and the litigants have to decide whether they want to appeal it up. Other rules may be stricken and then the administration has to decide whether it wants to appeal. I don't think the Supreme Court is going to take every matter, no matter how important it may be to, to our community. I think the, the history of the court is that, you know, to the extent that the, the lower courts have disposed of a matter and it's not something that they feel they need to fix, and what do they need to fix? Splits. There's a split in the circuits around the country, right? If they don't have to fix that. And so I'll give you an example. There's a challenge right now to the executive orders on emergency declarations. That's been pending for a long time. If that gets stricken, the administration would likely appeal that because a lot of their administrative steps are based on the premise of declarations of emergencies, and energy emergency, for instance. If they don't have that authority or if they find that authority has been granted, you know, that they they've used that authority improperly. They would have every incentive to appeal. But the Supreme Court may say, no, kind of think the appellate court got it right. So we're we're not going to take up that matter. And just like you saw in the tariff case, where the Supreme Court said, no, under the statute that you were using, you don't have the authority to do it. What did the administration do? Almost immediately said, well, OK, if we don't have that authority, we'll try something else. We'll try something else. And so, you know, that may happen in in many instances where they'll say, OK, you know, let's say you don't agree with us that we don't have the authority to declare an emergency and change all these procedures under emergency rules. We just want to change the procedures and we have other justifications to do that as well. And so that's why I'm talking about this next phase of all this work. We're going to start to see these court rulings roll out. Between now and this time next year. And then how the administration deals with it, whether they continue to pursue it all the way up or not. And then how they implemented at the agency. So I, I'd say, you know, the first year was, let's roll out these proposals. Endangered species, you know, Clean Water Act, Clean Air Act, hazardous materials laws, you know, the most recent one is the Advisory Council on Historic Preservation announced that they're going to look at their rules. We're going to roll this all out. And it was and, and people sort of caught their breath and tried to figure out what that meant. Now we're in the next phase. All right, it's out. People have issued challenges. Courts are going to review whether the administration got it right or wrong or in part or in whole, and then we'll see what they say then. And that's going to take yet another, you know, a year. So that's what I'm saying this next phase is all about testing. The scope of what the administration did and whether they went too far or whether the courts think they acted within their authority.

Yeah, and maybe that's a, that's a great segue to, you know, what does the United States, right? That's actually Already had a very long history with the Supreme Court, right? It's almost comical how often it's come up. So we did get another case, another ruling. I'm afraid to say that I don't want to say this is this is this it? Are we done? Is it this is the path forward for Waters in perpetuity considering how often it's come up, I'm afraid to say that, but is what's happening with the waters of the US a precursor for what we're going to see other, other things come to?

Well, well, let me ask you a question. Do you, do you want it to be the end? I mean. Not really. Because it's not going to be, because it's not going to be. So the final rule on wars in the United States will come out sometime this late spring, summer is what the expectation is. And the same way that the parties immediately ran to court on the engagement finding, they will run to court challenging the final rule. I think there is slightly less of a chance that it'll get to the Supreme Court just because of Wotus fatigue from the court. You just dealt with this with Sackett a few years ago I'm saying. I remember that they're even in Sackett, they're kind of like, can we not do this anymore, please? I, I, I think there's an incentive for them not to do it and just to see how the program gets implemented on sort of more project by project, policy by policy basis as opposed to revisiting it again. But you know, we know that the challenge is going to come out because the way the final rule was proposed, Nic, there was still. Interpretation on the relative permanence of waters. The administration is hinting at making a final rule on consideration of what the definition of the wet season is all about. So, OK, maybe you won't be doing it, you know, delineation based on significant nexus, but now you may have to be doing other scientific and technical analyses based on what is the definition of the wet season. In different areas of the country, it's going to be different. So my sense is the court isn't going to want to get into the Supreme Court, that is, isn't going to want to get into trying to litigate the difference between the wet season in Arizona versus the wet season, you know, in New Mexico or wherever. And I think they're going to wait and see how the administration deals with it. So you may say. Individual parties, whether it's on the environmental side or whether it's on the developer side dealing with case-specific issues. And those are going to be litigated and challenged up and down, and it's going to take several years. And if I think what the Supreme Court would hope is that it would sort of eventually kind of balance itself out. So that there was some reasonable expectations and interpretations of these new standards that they established in Sackett. So much so that they could say, look, you may agree or disagree in any one given case, but we don't have to step in again. Right, right. Yeah, we said we said our piece. Administration, whoever's in charge, you got to do your thing. And if one or the, you know, one way or the other, again exceeds, you know, the your authority under the Clean Water Act, maybe we'll step in. But gosh, I just don't see them wanting to do it again. Uh, so you, you may see case by case, location by location, geographic type disputes on WTU, but again, that's going to take time. The final rule will be challenged, you know, this summer, that'll be litigated, that'll take a year, and so we'll see probably by, you know, the end of 27, early 28. You know, how this is shaking out across the country, but it's the gift that keeps giving, you know, you know, but it's not the only one. You know, there's tremendously significant, you know, rules and changes under the Endangered Species Act. The 401 water quality certification rule came out. There's already been a comment period that has revealed tremendous upset with the way that's been laid out. And, and again, the, Preservation community is on pins and needles on 106 for what may come of that exacerbated by some of the activity here in Washington DC, you know, you know, lately. So, you know, something that might have been a sleepy thing, you know, only for the people in the know, people care about it, isn't so sleepy anymore because, you know, it's, it's in your face with you and I, you know, we work. We're in DC. We walk by and we see the crane hanging over the White House every day. And so this whole question of whether, you know, this is, this is going to capture the public's attention has been answered because now it now it is. And so it isn't just going to be some technical regulatory proposal that people contemplate just because they're specialists in that area. It's going to hit home for a lot of people who Wonder about that.

Yes, and it's interesting. It's like endangered species always going to have a soft spot in my heart. I remember being a kid getting like little, uh, dating myself, getting like little flip books of, of animals and learning about them and all these kinds of things, and it's always going to be a linchpin for me, but like, like you said, it's kind of maybe talk to me through like there is the law, right? The law is not necessarily what we're changing, we're interpreting it differently. There isn't an appetite to change that law, to update law. Laws in a way that I'm, you kind of think, oh, the laws were made, they were put out there, they can be amended and updated, but we're not doing that, we're reinterpreting the laws. Is that because it's easier? Is that the simplest answer or is it just the way that we do things now?

I think like most things, sometimes simple concepts in law, once it hits. Real world reality reveal themselves not to be so simple. So in the endangered species context, the question of, you know, what's the definition of a take of a species. And that basic principle, you know, worked its way all the way up to the Supreme Court as well. A funny story about that, former law partner of mine. Who was a white-collar criminal lawyer. So I had no environmental experience whatsoever. Started practicing in the environmental law field because at the time, There was a lot more criminal prosecutions under environmental laws. So it was important to get somebody who's used to doing criminal defense on our team, but he was not by any means an environmental specialist. So he had a client in a matter under the Endangered Species Act, and it was the question of whether there was a take, an authorized take of a species. And so he tells the story, how he went to the meeting and he's taking notes and You know, the people from the Fish and Wildlife Service on the other side of the Department of Justice who's client by him, kept on saying it over and over again, you know, but your client takes, there's, there's this, there was a take, there was a take. And, you know, with a very straight face, apparently he lifted up his head, and he turned to the Justice Department and says, can't they just give it back?

Oh no.

So he, he was sincere, at least I'll give him that. But that story proves the point about, is it because it's easy? No, it's because you set up a definition and then what does it mean? And so where we are now is whether. The question of harm to habitat can equate to a take. And prior policies have been that if a certain project or federal action would result in a take of certain habitat, that could precipitate a decline in the species, which could precipitate a take. Therefore, it fits in the definition. The administration now is trying to narrow the definition of a take where It isn't necessarily so that even a reduction in habitat would equate to a take. That's fundamental change. That's that's a huge change in practice. The law has not changed one bit. The law hasn't changed, but the interpretation of the law has, well, I said it made all the way in the Sweet Home versus Babbitt case, that question went all the way to the Supreme Court. And just like with Mass v. EPA, the current administration's reinterpretation of that. is trying to relitigate some of the arguments that were rejected in Sweet Home, and that was even further than that was even longer ago than massive EPA, you know, in the context of new regulatory proposals. And you know, it's part of the organic nature of law and policy. Right now we're we're stressing. Uh, project development and accelerating approvals and not wanting to see delays as a result of different regulatory programs. So that has precipitated new policies and new interpretations of regulations under the same law, under the same law. And again, get a little bit full circle here, going back to the major questions doctrine, what I think Professor Gorsuch, because it sounded like he was a civics professor, not a judge if you read his ruling. What, you know, what he was saying was like, look, the separation of powers. Commands, compels the legislature to do its job. And even if that's difficult, and even if it takes time to leave it to administrations that come and go and change policies and they go up and down and right and left, that's like the worst outcome under our separation of powers, he would argue. And even if it takes more time and even if it would be, you know, we have a pressing problem, we have to do something. Well, Congress was set up under the genius of our framers. To take its time in a little de-democratic process. And so, you know, that's what we're seeing is that and why some of these cases are going to, some of the cases may eventually get to the Supreme Court because they, they run headlong between the principles of separation of powers and the roles of the three branches versus in this case, a branch of government, the executive branch that's wanting to go, go, go. And want to say, we have the authority to do this. This is the direction we're going to go. Stop us. Right? And so that's why, you know, whether it's environmental law, whether it's immigration law, whether it's the law interpreting, you know, the authority over powers of the purse, that's why we're seeing all these come to a head because it's just so foundational to how our government works.

Right, right. So, you know, like I said, we have a couple of other things we can talk about. I mean, like you mentioned Section 106. I know that's important to a lot of people that listen to this show. What's going on there? How does that fit into what we're talking about right now?

You know, and, and that's even more challenging to a certain extent because those of us who work in that area a lot would testify that years ago, we've kind of anticipated this concern about time and speed and process and the regulations were revised 20 plus years ago to do just that. They imposed strict deadlines on shippos and consulting parties. You know, if a consulting party doesn't want to sign on to a final, you know, memorandum, that's OK. The government can move forward. All those types of reforms were built in so that it couldn't sort of tie up the process. And so in some ways, there's a little bit more of a challenge to figure out, you know, how much more can we do based on the things that have already been instituted. It was pretty interesting, but a couple of months ago, there was a hearing on Capitol Hill on 106. And we were expecting a lot of debate and dialogue in the committee about everything should change. And I challenge you to go back and read the transcript. It ended up being more of like a love affair about Section 106. Which is, I don't know if the congressional committee thought that's what was going to happen. And there was a lot of testimony about how the process is actually kind of working. Now, that's not to say it can be complicated, it could take some time and whatnot. So the question is going to be, you know, how can they further narrow some of the principles and the timing and the deadlines and the responsibilities along the lines of what they've been trying to do under NEPA and so forth. Everything could be on the table, from how you define an area of potential effects to the definition of an adverse effect. To, you know, how resources get eligible for the register and the categories for which they get eligible. So I'll give you one example that I think may be in play. We've been involved in projects for many years where, you know, we're working along and in the middle of the project, the fifty-year clock ticks. And all of a sudden that building. Potentially has to be considered. I know that that ticks off a lot of people. You know, and that is an issue. So the question is, is it reasonable to presume that just over the passage of time, a structure that may or may not be otherwise remarkable or whatnot. Should be considered for those types of protections. Something like that, I think could be absolutely in play. Um, it doesn't change the foundations of the law and the interpretation necessarily, but it could fix a common complaint that we've heard that moving targets, things that get added in without not necessarily obvious reasons why it should be and things of that nature. So, Yeah, that could be in play.

Interesting. So I don't want this to sound all doom and gloom, and I honestly don't think we've done that here, which is kind of great. Sometimes I think change is scary. Change is, it's inevitable, but if you look even back over history, the laws have changed. A lot, a lot from when they even first implemented or when when they weren't even long. Looking forward, are we gonna see more cases come through? Are we seeing if, if we kind of hit the limit on where the administration can go? I mean we're, we're coming up on a year and a half now, so only so much is gonna be, well, I guess it's a different year, but like, are we gonna see more of that breakneck pace or is it kind of we did what we need to do now we're going. And we're done.

Yeah, I mean, it's hard to pick one or the other, the way you frame it, but I think there's a couple of realities that are upon us. You know, we are going to, we are in a political season. And if there is a change on Capitol Hill and there's a split in Congress or if Congress changes completely, the principle of oversight, you know, with Democrats having oversight authority and the gavels will change things dramatically. So that's a, that's a practical thing. The other thing that's practical is that with cutbacks in the government, there's only so many things that could fit through the pipeline, you know, through the administration of things that that can change. I would say, in general, the big picture things that I think the administration wanted to tee up, endangerment, WTU 401, ESA, NEPA, those are out there now. So now I think we're going to go into the phase of how do these challenges play out and how do these work, you know, implement. Now, I agree with you 100%. It isn't all necessarily doom and gloom. You know, I wrote an essay sort of to myself, but I, but I shared it with folks, you know, internally, and the essay was called What If. It was folks on Nipah, that one, but I said like, what if? You didn't have rules to say that the way you do an analysis or write a document should be exactly this way. What if you were just writing it from fresh in a way that you wanted to convey it, that would be most effective for your decision maker? And most effective for public participation. Would you necessarily write the documents the way we've been writing them for the last 40 to 50 years? And I felt the answer to that was no. And so the rules are revoked and new guidance documents have been written and they're non-binding guidance for the most part. To a certain extent. And again, I don't want to be, you know, overexaggerate here. To a certain extent, the answer can be, so what? You can still write a perfectly excellent, compliant document that covers everything you need to do to make a good decision that looks nothing like the way we've written it for years and years. And that's why I call the essay kind of what if. And you know, I truly believe that, you know, if we embrace some of these changes, we can get to better places. As an example, a lot of concern over proposals and some of the new guidance that makes the publication of a draft EIS optional. And that's been foundational for years. You know, right and right, right, draft DIS public hearing comments, finally IS use my what if mentality. What if? The public comment period and the hearing isn't necessarily the best way to do engagement. What if you do engagement all throughout the scoping process, all throughout pre-NEPA in different ways and allow input and consideration of this in a more robust way that isn't necessarily focused on just that comment period. It could be better. It might be better. And I'm not, I'm not saying that it's better in all cases. What I'm saying is there are opportunities to rethink these things in a way that we can get to good results consistent with the mandate of what the statute provides. And so I agree with you, it's not necessarily, you know, doom and gloom. We can still implement best practices. We can still honor the principles of the of the statute in a way that Reaches good environmental outcomes, but we have to do it. Right? We just, we just can't assume that it's going to happen. And I think one of the things that we're going to see over the next year, Nic, I truly believe this, is I think we're gonna see federal agencies, project proponents, you know. be more confident in trying to say, here's what we're going to try to do with these new procedures. We think they're OK and trust that they'll get through the process, even survive legal challenges, and provide a new foundation for how they're done in the future. I truly believe that's going to happen. And it takes a combination of courage, chutzpah. It takes some of that because nobody wants to be first out of the, out of the box, but it takes a combination of that. But I think we have now the, you know, the legal authority and for, you know, the regulatory authority to take these measures and see what happens. So, I do think that this, I keep on calling it the next phase of environmental regulatory, deregulatory action is going to be dependent on how the Infrastructure community, how the regulated community deals with all these, these rules. If there's a movement afoot to say, hey, great, you know, we're kids in Kasha, we do whatever we want, that's going to reach one outcome. If we go to, OK, here's some of these tools we have now, let's figure out how we work in that framework to reach better results, I think I'll have a whole another set. Of outcomes. And what we are, you know, promoting and and I know people in the profession are promoting are ways to make all this more durable, make it more durable, and, you know, we coined a phrase internally called regulatory resilience. And that's all to say, no matter what happens, no matter who's in, no matter who's out, how do we come up with a process that that can survive and be useful and consistent with our obligations over time. And you know, I'm an optimist. I think, I think we can get to that point.

I think we both are actually. That's one of the things that, that we share, you know, I've been asked a lot of times like, so what happens? What do I do? What is my job? Is that safe? Am I, are we still going to do environmental things? And I think back to a conversation that, that we've had before and this may be a good place for us to kind of wrap up. It's like things still need to get done, things still need to happen. Building things well is a good idea. Building them in safe places is a good idea. Building them safely also a good idea. Those are just fundamentally true. We talked about community and how the community is going to be engaged whether you tell them about something or not. They will find out about something. They will find out what's going on. That's the uh American way, so to speak. We're engaged, we care about what's going on in our communities, so maybe I don't know if you. You can just bounce off that like people that are nervous about, OK, what does this mean for environmental jobs in general? What are we looking at instead of, I think, do I have one, it's more more like what's going to change with mine. That's how I see it. It's like, how do we, how do we navigate that?

You know, in an odd kind of way, that question relates to what we're hearing so much with the advent of AI and the increase of AI in our world. The best case scenario for AI. is that it allows us to do more routine things in a more efficient way and allows us as humans to concentrate on the hard stuff and to be creative and to be innovative. That's the best case scenario for it. The worst case scenario is we get lazy. We let things happen and so be it. I raised that because I think it's a similar answer to your question. You know, we could take some of these changes and say that we're trying to recalibrate the way we build, the way we get infrastructure planned and built in this country so that we could all benefit from it economically, socially, every other way and not have to. You know, paying ourselves for 2030 years on, on things that we know we need. And we can get there and we can do that in the old manner of the 1940s and 1950s and 1960s and just, just do it. And that would not be good. Or we could do it in a way that restores some of that, that balance and that's going to be our test. So, I don't think it's a, it's a matter of, you know, will there still be environmental jobs. The question is, you know, what are the better processes to reach the. Best outcomes. And, and how do we find that? And the hope, the nirvana is that this ends up being less political over time and more practical. Will it happen? Don't know. But you know, that, that's the point. One of the groups I've signed up for as a person personally, is this group called the Builders. You should look it up. And they're, they're on their website and their mission is specifically to take some of the Sort of partisanship out of stuff, all stuff. And they came up with a great name and I love the fact that it's named the Builders, because it does give the impression of, you know, we are trying to grow, we are trying to develop and we're not into tearing things down, we're able to building things up. And I think that's the mindset that I'd love to bring to our discipline because at the end of the day, we are builders. We're building things, we're building a society, we're building a country, we're building opportunity, we're building mobility. Everything is building. And so we could be, you know, like the best part of AI which is, OK, you know, we're not going to sweat. The routine stuff, you know, we're going to concentrate on things that matter. We're going to reach those better outcomes. That could be the best, or, or we can do the other way, which is saying, uh, we're just going to let everything slide and go and, and then hope for the best. I know our profession doesn't want that, um, for all the pressures there are to do things better and, you know, for, for do things more quickly, but I do believe in that. mentality that there's a way to find that balance to get things done in an appropriate way and time will tell. We're we're in a pretty crucial period. You know, for the next 11, 2 years, we'll see some of the projects that come out. We'll see some of the analyses that come out. We'll see some of the outcomes. It'll be a pretty big test to see if you and I are right to be optimistic.

I mean, in a way, it's kind of one of the most thrilling parts about careers in general. I think it's a great place to be a little cautiously optimistic is never bad, uh. But that's it, we're out of time, which is always like, I love how fast these go. It just always feels like we're just hanging out. But before we let you go, if anyone does want to get in touch with you, what's the best way for them to do that?

Yeah, by all means, Fred.Wagner@jacobs.com is, is my email. LinkedIn is often great. I'm pretty present on that. And, uh, believe it or not, I'm still of the generation that when I get messages, I respond to them like, like right away. I don't know what you're talking about. I've never. Thank you, Fred. Appreciate it.

All right, nice seeing you, buddy. Yeah.

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