Practicing Law, Policy Updates, and Infrastructure 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 bring back Fred Wager, partner with Venable, LLP to talk about Practicing Law, Policy Updates, and Infrastructure.  Read his full bio below.

Thank you to Venable, LLP. for sponsoring this episode! Check out Venable at www.venable.com

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

Showtimes:
0:00  Intro

1:35  Shout outs

2:48  Nic and Laura's talk about phobias

10:17  Interview with Fred Wagner starts

15:12  Fred talks about practicing law

25:33  Fred delves into the history of environmental law

32:28  Infrastructure Bill

38:01  NEPA policy updates

46:35  Fred provides a summary of environmental justice updates

50:18  Outro

Please be sure to ✔️subscribe, ⭐rate and ✍review. 

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

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

Guest Full Bio:

Fred began his career as a trial attorney in the Environment Division of the U.S. Department of Justice. He also served as a Special Assistant U.S. Attorney in the Misdemeanor Trial Section of the U.S. Attorney's Office for the District of Columbia. Prior to joining Venable, he spent more than 20 years in private practice at a national law firm focusing on environmental and natural resources issues.  During his career, Fred has handled a wide variety of environmental litigation in federal trial and appellate courts across the country, from citizen suits, to government enforcement actions, to Administration Procedure Act (APA) challenges.

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

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Transcript

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[Intro]

Nic 
Hello and Welcome to EPR with your favorite environmental enthusiast Nick and Laura. On today's episode, we give our shout outs, Laura and I discuss phobias, well, specifically, other people's phobias because apparently we are both fearless. So, we also invite Fred Wagner back to the show to talk about working as a lawyer, the history of environmental policy and updates to Biden's infrastructure bill, it's a great listen as always, just such a good job of breaking down complex items into like little digestible chunks which is a little bit of a foreshadowing, so it's a great interview, please do check it out it's a lot of fun. And then finally, scallops can have over 200 eyes, and I'm telling you, the images of this are haunting. So if you are looking for nightmare fuel, there it is.  Yeah, yeah, look it up, look up scallop eyes.

Laura 
Really. I thought they were pretty, I don't know we're gonna have to look at this,

Nic  
There's like one picture where it looks like it was big. It would scare people. It's like yeah, like it was his mouth is open too and it's got like whatever the heck is in front and it's just 150 eyes looking at you. And it's like this is your death, you know, like that's where, for me it was like okay, all right. Please be sure to subscribe, rate and review. Hit that music.

[Shout outs]

Laura 
Alright, or shout out for today goes to Lyle Hagedorn. He has been one of my best friends for almost 30 years. He's not an environmental professional but he still listens to every single episode, so thanks Lyle.  We appreciate you.

Nic 
Yeah, that's great. That's great, thanks. Keep listening.

Laura 
Also be sure to check out NAEP's leadership blog run by our very own Ron Deverman, you can find it by going to naep.org and clicking on the leadership blog quick link on the homepage, Ron does a really great job pulling it together and writing some articles himself so it's a great read, head on over it's totally worth it.

Nic 
Today's episode is sponsored by Venable LLP, which is one of the nation's leading law firms Venable's management reflects our commitment to diversity and inclusion to a broad category of hiring, training and educational activities. The firm's environmental practice group works with clients across the country in major infrastructure development, including NEPA compliance and resource agency permitting Venable encourages volunteer activities in professional environmental associations, as reflected by Fred Wagner's membership on the NAEP board of directors,

Laura 
Nic and I love doing this show, if you love it too and would like to see us keep doing it. We need your help. We can't do it without our awesome sponsors. So if you're interested in sponsoring please head over to www.environmentalprofessionalsradio.com and check out the sponsor forum for more details. Let's get to our segment.

Nic
Cool.

[Nic and Laura's segment]

Laura
Ah,Do I have any phobias.

Nic
Yeah.

Laura
I don't think I have any that are, you know like people's outrageous, Whatever, or like debilitating phobias are anything. You're not that heights I have normal phobias like jump in the water there I'm afraid there might be sharks but not even crazy way

Nic  
like you still go in the water.

Laura
Yeah, why do you,

Nic
No. Same way, same exactly, but my wife does just like deathly afraid of spiders, and she works with tigers every day it is the funniest thing to me in the world. She's like, there's like a like a sound I hear in my house like, it's like her saying my name so fast that only the N gets out. And I know that means I have to like you know, kill the spider, which so frustrated or take it outside right outside. I've been given the option now, because I told her I was like, you realize if I kill these spiders. I'm the one that's going to Spider hell when I die right it's gonna be me, being tortured by spiders like that's what happens. So yeah, So now I do. I am allowed to put them outside, ya know, hers is wild. My brother has a vague. He is a healthy fear of the ocean. I would say that Jaws movie, really, really spoke spoke to him. So yeah, it's not that he won't go in the water, but he won't go in the water.

Laura  
Yeah, I don't have like a phobia of slipping and falling down a mountainside, but I do. I have the thing where I picture like the headline, like woman drowns from being too close to a waterfall or Yeah, for sure, or woman visits the Grand Canyon and is one of the idiots who falls of the edge. I don't get close to the edges of stuff but I'm not like afraid of heights, you know I will. If it seems safe and safe enough I guess I will go up like a fire tower and all those things but I try not to get towards edges with no rails too close just because I'm clumsy, so it's not like a phobia of just overly cautious maybe,

Nic 
No. It's not just like, you know, just being, you know, a responsible adult. I think that's what that is.

Laura  
We've had the flooding and stuff here in Syracuse, we've had a few people drown, like getting too close to the waterfalls and somebody drowned trying to rescue his dog from Erie Canal, just like

Nic 
That's so sad.

Laura 
Those things run through my mind and I stay away from the edges.

Nic 
Yeah, and I mean like, Well, you say, I don't know that tell you about the guy that I'll just tell you the story and he told me if you have told you already, but so I went to the Galapagos. A few years ago, one of the highlights of my entire life. It was incredible. And we went to the one spot, and, you know, every islands different which is really cool about the Galapagos one of my favorite things about it is like, there's just so many unique experiences there, but so we're on one of the islands where the albatross are, and so it's a very rocky very very sheer cliff area. And so they have these terns that are nesting on the side and we're looking at those. And there's this German family with us with a 14/15 year old son, and he is just being a typical teenager just making fun of every old person, but my wife and I are looking at him like you are such, you're such, you're such a teenager thing but you're being such a jerk, and he's making fun of everybody at the edge of a cliff, just at the edge of a cliff, right, and like two minutes earlier we had seen the biggest tiger shark. I didn't know that could get that big, we'd looked down, like 100 feet, and it's monstrous. So it's huge. And we're I'd say 150 feet up, and he slips and I mean like, his feet kick out, and he grabs on to the rock in front of him. And that's the only thing that saves his life. Oh my god like he literally almost fell to his death, making fun of other people, like crazy, his parents didn't see it Lauren and I were the only ones that did. And he climbs himself back up because we're like oh my god we have to go pull this kid up finally, he is able to climb up up doesn't say a word the rest of the time you're like yeah okay so now he's afraid of heights.

Laura
Oh, he's been smoked

Nic
Like I'm glad he's okay, because at the time we're like that yeah see you're being a jerk not paying attention to anybody. And like we thought we really thought for like half a second he was gonna die. I was like, because there's, he's gonna die from the fall and that sharks gonna eat him, like there's just, it was, it was really scary, really, really scary, but yeah, healthy fear of ledges is a good thing.

Laura
I will be keeping that in mind.

Nic
What a cool experience otherwise though, it was really neat. Otherwise, not him falling in the Galapagos

Laura  
right so if you see the big tortoises.

Nic 
Oh yeah, of course, yeah, yeah, I'm definitely

Laura
Do they have a name, I shouldn't be calling them the big tortoises.

Nic
Galapagos tortoises and there's several species of them based on the island that they're on. So every island is that different, or they're just species are unique. There's actually two main body types. There are, if you look at their shells, there's like the fold down. And there's like a half dome. And so it's not really Half Dome, it's more like the the back of the neck is lifted up. So basically the turtles can lift their necks and grab, so that brand of turtles is, is eating, you know, shrubs and everything, the other is eating grass, so there's actually two main types on the Galapagos Islands, which is really cool,

Laura 
interesting yeah I got to get out there.

Nic  
It's fun. It's really fun, and every season is different, so we went during like the calm season, but like they have whale sharks that show up in winter and penguins there they are some your some part of the year and we weren't there for those. And I would say that you should you should go for eight days, at least because I think I was there for the first four days we were kind of like, I mean there's some cool birds but what else do you guys got here, you know, and the next four days were just some of the most incredible wildlife we've ever seen I mean like you get that they are not afraid of people. Which is weird, but they you get like, just right up to them like within, you know you're supposed to do that, basically the same thing with COVID, six feet. But we have just incredible photos of wildlife as a result, and, yeah, it was such a good experience.

Laura
Where did you stay?

Nic
So there's two options. There are three populated islands out there and you could stay on one of those in a hotel, and then go out to different islands. Not what we did because you can't see or as much, you're limited really more what you do. So we did a cruise, and we just have to do a cruise where they got a big boat, and they were renovating the boat, so we had half the people that we would normally have on said, nice and it was great. Yeah, yeah, I don't know how you do it with more people. It was just jam packed, but you know, the more you pay, the smaller the boat and the more intimate the experience but, yeah, we're like, oh, this is all the money we have please let's go do this and so it's different for us. So, but yeah it was it was really cool. Eight days

Laura 
I have more states but I don't have a Galapagos so

Nic  
that's pretty there we go yeah. I got one. I got one on you. Yeah, it's a really, I mean, so there's like 11 different currents that hit those islands, that's where they get all that uniqueness from. So there's some dry islands or some very wet islands, and there's something I don't know there's one of those like a fairy tale. It's really weird, it's like, is there a witch in this forest because I feel like that's awesome. Yeah, it's really really cool.

Laura 
I think that my only phobia is not getting to visit all these places before I die.

Nic 
Yeah, there we go. I agree. That's it. Well said. So yeah, let's get to our interview, okay.

[Interview with Fred Wagner starts]

Nic
Hello Hello and welcome back to EPR today we are happy to have our legal expert Fred Wagner of Venable LLP, on the show. Thanks for stopping by Fred.

Fred Wagner
It's great to be back.

Nic
Now, despite having you on twice already, we haven't actually touched on what you do on a day to day basis like your day to day responsibilities at Venable, can you kind of talk through a typical workday for you, or, you know who your typical clients are.

Fred Wagner 
I thought you'd avoided that on purpose because he thought it would be just unbelievably boring for the audience. I thought you made a conscious decision on your part. You really want to know what a lawyer does.

NIc
We really want to know, yeah, yeah,

Fred Wagner
I mean, look, I've been doing development and project work for most of my life, and a lot of it is in the planning and execution phase, and a lot of it's in the defense space. And so, I'd say you know about two thirds of my time is working with my clients and working with good people like you, trying to satisfy all the requirements of federal and state agencies to get permits and approvals for projects, large, small and in between. And then if you're successful in getting those approvals and getting those entitlements, you defend them from attack in court, and I've been doing that since I started my career at the US Department of Justice, defending NEPA litigation literally across all 50 states including Hawaii, and continue that in private practice as well and today is, is actually a very typical, you know I have call dealing with a client trying to react to comments it's received on draft environmental document from its federal partners and trying to figure out how to satisfy all their concerns and questions and yet at the same time try to keep to a schedule and get the project delivered, dealing with another client who is facing legal challenges based on completed environmental review and permitting and they're trying to respond to those challenges both on an administrative level and in federal court, and then later in the day I'm dealing with another client who's trying to plan in advance, based on what may be happening coming out of Congress in the infrastructure bill with respect to some of these environmental provisions, I mean it's today you hit me on a really good day, Nic. It's a typical days you get, and, you know, that's really what I've been doing for a large part of my career.

Laura 
I love this stuff. So it's not boring to me. Right, Yeah. Do you have a team Fred?  Or is it just do you work on what you work on other people work on what they work on

Fred Wagner 
Team, we'll definitely have a team and you know at the firm I'm really lucky to have a group of young associates who are you know working with me on any number of different projects and, you know, they really love these kinds of projects as well because they can dive right in and they get a lot of responsibility. I've a bunch of partners in the environmental practice group at Venable who are doing major project development around the country in different forms of infrastructure, some partners who specialize in mining in the mining sector, others who have been doing a whole bunch of work in the freight rail and high speed rail area, and even partners who are dealing with space exploration, and the environmental aspects and permitting of space exploration. So, you name it. Yeah, it's really cool, you name it, we do it, but they all have a common theme, Laura, it's a common theme which is, you know, how do you get from your, I call it the light bulb moment, how do you get from the light bulb moment where you have an idea, a concept of project, you know, to getting approved to do it to actually building it. And that's our goal to try to assist folks to get through that as quickly as possible and then once they do try to convince a man or a woman in a robe, or three men or women in a row, or nine men and women in robes that we actually did it right, you know, and again, you fit me in a great week and this week is a great example we are in the past to talk about my work on the Obama Presidential Center in Chicago. Yeah, you know, just this week we were fortunate we received a positive decision from the federal district court judge in Chicago, we received a positive decision from the Seventh Circuit denying the plaintiffs motion for a stay, ending the appeal. And believe it or not, the plaintiff has appealed to the Supreme Court seeking emergency stay, preventing construction we're waiting to hear from the Supreme Court about that. So, I mean, literally, it's a perfect week to describe my work in my practice because you know I'm doing the planning I'm doing the thinking of doing the defending. At least so far this week it's been a good week because my clients have come out on the positive end.

Nic 
it's always good.

Laura
Nice. Well, you sound super excited about the work and all that seems really high pressure. I'd imagine this kind of work is not for everyone.

Fred Wagner 
It is high pressure, and I recall. You're from an early stage of my career Laura, I had a  story where I was the young associate I wasn't the partner I was associate working with another partner on a project here in town, and consultants, you or Nic called me up because they couldn't reach the partner the partner was out of the office. And so they called me and they said, Okay, here's the bottom line. This is the challenge we received from the agency. Our deadline is today. Are you telling me that we have to stop the presses, not go forward we're publishing our environmental document and handle this comment before we go forward and if we do it'll take two weeks to conclusion. What's your answer. You know and yeah I was at the firm for like a year or so at that point in time I was really young, I meant some experience in that process for sure. But the question was just the, what do you say the question. You tell me yes or no. Do we go forward. I don't know. At that time, whether it was do we press then but you're doing, go to the printer printer can we get to putting all this stuff, or are we gonna wait and then are you going to be the one to explain to the client why we're delayed for two weeks, you know, it is it is pressure, and you'll hopefully all the steps before that point we need you to the correct answer. But the bottom line still is Laura, time is money. These projects, you know do don't get, they don't get cheaper over time to build, they only get more expensive to build and so sticking to schedules but doing so in a reasonable fashion is a constant balancing act and yes there is pressure to identify for your clients from a legal perspective right, you're doing the stuff from the technical perspective, but from a legal perspective the differences, I'm identifying for them, what's the risk. For example, in a case where the guy saying you know yes or no to be delayed or not. I had to talk to what what's the risk associated with that if you leave this comment hanging, and it's not responded to in a way that we can explain, you know well in our record. This is the risk if you think that we have enough in the record already that's the risk, and ultimately that's the clients call, and if I'm doing my job well. And I'm identifying those risks properly, you know, I've got an educated client. And, you know like the old Simm's clothing commercial from when I was growing up in New York City you know their logo was an educated consumer is our is our best client. Same with me. If I have an educated client and then making good decisions. I really done my job, you know, so, ultimately, it isn't the lawyer said to do this, resilience, your decision to do it based on your assessment of risk.

Nic 
Gotcha. So did you stop the presses.

Fred Wagner  
I did not stop the presses that particular day. And they went forward and and happily. That project got built and I'll disclose it since it's in the public domain that's the Capital One Arena in downtown DC. There was a big, big EIS done for that project because they was under the jurisdiction of the National Capital Planning Commission It was immediately across the street from the Portrait Gallery and other protected resources, and the NCPC did an EIS for that project. And you know I was one of the lawyers, going through the section 106 and NEPA process for the Capital One arena and it got built and not only did get built but arguably it's transformed in DC, forever. In a good way.

Nic 
Yeah, absolutely, that's cool,  Fred, that's super cool.

Laura
It sounds like it's a lot of pressure but sounds like it's worth it.  So that's really neat.

Fred Wagner 
It is and I think you'll agree that as one of my friends has said in the past, you know, nothing big, you're doing something big is never easy, and it's going to take a lot of effort and there's going to be twists and turns in the road and it's not all going to be linear in one direction but at the end, doing something like that is positive and beneficial and it's worth taking the time to do it.

Nic 
And then every time you drive by there you get to see and say hey I was a part of it. That's pretty cool.

Fred Wagner 
Well that's right and that is the coolest part of my job, you know I've been involved in any number of projects where you get to see the fruits of your small part of it, the legal part, but you see the fruits of your labor and more importantly you try to see if what you've been saying is true, you know whether expected benefits have been realized. What about the harms Have you mitigated those harms and you hope that you've done a good job and you've looked at all that accurately and none of us are soothsayers, none of us you don't know the future perfectly, but if you done your job right, You've been able to balance all those concerns. Right.

Nic
Exactly.

Laura  
That's great. I think I'm ready to get my Erin Brockovich on. So, if I wanted to go back to school, and if I was younger so, you know, considering your younger professional self and these interns and students you talk about working with up and coming, environmental, attorneys, what kind of advice or what do you see with them that you would say to them to help them progress in their early careers.

Fred Wagner  
Yeah, I mean, the thing that I tell a lot of students who are thinking about going to law school and, and want to enter into the environmental law profession is, you have to keep in mind what the practice is, day in and day out. In other words, environmental law isn't all about going out and saving the world in that sort of sense some of it is very procedural so I tell students, you really need to take administrative law at law school, and think about administrative processes even more than the environmental statutes themselves, you'll be able to read them, you'll be able to understand them, you'll be able to apply you know your legal thinking and reasoning to understand the statutes and regulations, but unless you really understand how a law goes from Congress to the agencies agencies implement those laws through regulation, how those regulations are enforced, then you're not really understanding environmental law it truly is an administrative practice. And so as a result you have to be very patient because of all the things we just talked about, sometimes the administrated process is interminable. It takes forever to get from point A to point B and sometimes you don't see that endpoint, very clearly, but you need to understand how to do it and how to do it well. And then ultimately, your work is going to hopefully in order to the benefit to the environment. The other thing I tell students coming up in law is that you also have to really appreciate the differences in the shades of grey in the field, because it just from the outside it seems so clear, it seems so black and white and it's obviously not. And you know that having been in profession and I know that haven't practiced law for over 30 years but until you actually start interacting with clients and you start interacting with problems. You just don't appreciate it so I've been asked a lot, you know, how do you work in a private firm after working in the federal government. Do you feel bad, representing your industry or whatever. And the answer is absolutely not I've never felt bad, doing that because the folks that I work with are trying to do the right thing. Yeah, they have problems or they have sincere disputes over the interpretation of a regulation doesn't mean they're trying to get around it, doesn't mean they're trying to pollute it means they're trying to figure out the best way to comply, advance their company's agenda but at the same time comply with the law. In those problems sometimes they're hard. And then the other thing I tell people Laura about, you know, practicing law is that you have to understand that if folks are coming to you as an environmental lawyer, they're not coming to you because they've got an easy problem. If it was something that was easy they wouldn't be picking up the phone right and consulting you. They're coming to you because something's hard, you know, either there's a real difficult business call a political decision where there's a tremendous challenge to the company or to a project. And by definition, then it's gonna be subtle, it's not going to be so easy. And I think you have to appreciate that as well you know that the motivation for people to pick up the phone and get lawyers involved is only when there's been many efforts to get things right, or there's a true concern that can't be resolved or your parties are at loggerheads for whatever reason. And that's why you're getting involved. So, by definition, it's going to be the challenging kind of problems. So those are the sorts of things I tell people to maybe give them a more sober outlook about what practicing environmental law could be and finally the last thing is just remember that it's a long career. Hopefully if you enter the career and you love it, like I do, you're going to be representing folks at, you know, maybe in the private sector like I am now. You may be in government, like I have been, you may work with public interest groups. Over the course of your career and NGOs, you probably will do it all over the course of, you know, happy in long legal career so understand all the different sides of the table, and hopefully you'll get a chance to represent those different sides of the table over the course of a career that's only going to make you a better lawyer.

Laura
Right. Great. That's really good advice.

Nic  
Absolutely. And then

Laura
Nic, why don't you take over with the hard hitting questions you've been waiting for.

Nic
Yeah, but you know I think though, you know, just to wrap that up, what I'm hearing too is if you dedicate yourself to doing this eventually you'll be, maybe you'll find your way onto  this podcast that's all I'm saying, which is the highest level of your career, I think, I think that's fair.

Fred Wagner  
I think that's the definition of 21st century career advancement. You're interesting enough that some podcast somewhere wants you.

Nic 
 Right, exactly. So yeah, you know, I definitely want to talk infrastructure plan with you. But before we dive into that, I don't know what it is we know I just I've been reading a lot more about the history of environmental policy in the US recently, and I know that you've seen it change over the years, and we touched on this a little bit before with you but I really would like to hear a little bit more about like what led up to the passing of NEPA in the first place. What were we doing before that, you know, and, you know, how has it changed over the years.

Fred Wagner 
Yeah, it's a great question and there's, there's a couple of one of my former law partners, and a good colleague, John Cannon, who just recently retired as a law professor at the University of Virginia law school where I went to law school He's written a great book about that very question about the history of environmental law and sort of the progress that it's made so I commend that to the audience as well for that by John Cannon's book, but my sense is if I could overgeneralize it, it's very much like when you go on a diet. And you want to lose 20 pounds. Sometimes when you start, and right away you know you start eating the right thing, and you start exercising and whatnot. The first 10 or 12 pounds, sometimes it's not that hard, right, because you made this change you've addressed some of the obvious things that you should be doing so you've cut out the junk food, or this or that. A couple less beers or whatever and you see some progress. And it happens sometimes pretty quick, right when you start, but then the hard part. Isn't that the hard part is maintaining it, and then the really hard part is the last two or three pounds, where we're trying to get to that goal. And I think in some peculiar way I think the history of environmental law including NEPA follows that trend. So in the 1960s, there was some clear and obvious problems that were affecting the country's environment movement was born. And you had an era of major environmental statutes being passed, not just NEPA the grandfather environmental law. Clean air laws, sea water laws, hazardous waste laws, you name it, you know, from the 60s Up until, through the passage of super fund, and then ultimately the Clean Air Act amendments, major statutory endeavors to try to address these issues that everybody saw. And so, and there was major progress, accomplished right away as a result of the statutes and I don't think anybody would disagree with the general proposition that our country has benefited that way in our environment, our air and water was better and cleaner. But what we're seeing from the 19 mid 1980s and beyond. We're trying to get to the last three to five pounds. And that is so much harder and not only we try to get to the last three to five pounds, but we're now realizing that some of the things that we've been eating all the time, even though we haven't gained a lot of weight may not necessarily be the best things for us. Right, right, so now we're trying to make even more subtle changes, not just to, you know, exercise and this or that but we're trying to maybe change the content of what we're putting in our bodies in a way that's different than we may not have expected before because gosh, we thought these things were fine for us and now we're seeing, you know, different sorts of your priors, and the same thing is true with environmental law. We're dealing with different chemicals that had been approved, but now we're seeing or creating long persistent issues in the environment, you know, we're dealing with infrastructure development in a way that's trying to address head on environmental justice and equity issues that we saw happening around us. But now we're trying to figure out what's the best way to deal with that moving forward, and these last three to five pounds get really hard, really hard to implement and they get really hard in terms of policy calls and really hard in terms of decision making for public entities as well as you know, private actors. And I think that's what we're seeing. Think about NEPA how simple the premises are think about your actions before you take them. Yeah, that's it. That's it. Yeah, Think about your actions before you take them and involve the public so they're aware of what's going on. That's what the law is all about how simple a proposition but it wasn't federal law until 1969 Yeah. But now we're dealing with something that's much more subtle than that, you know, not just Okay, think about your, Your actions before you take them but, you know, what are the best actions to take, and are there different sorts of ways to get there that affect disadvantaged communities in a way that we may not have contemplated before these get more difficult these get more challenging. And I think this is not just for NEPA, I think it's true for all media, you know, air, water hazard, hazardous materials I think we're seeing that question and these questions get harder as we try to fight for the last, you know, three to five pounds of these goals and and the scales or goalposts are always going to move right I think we're always gonna try to find another five pounds, you'll go to your doctor's office and say hey, look at me I'm doing great. And then he shows you the BMI scales as well. And you get all pissed off at your doctor but the goalpost will always move a little bit. Can we can we do better. Can we do better still. And so that's sort of the way I describe it, it's not very legal but I think it's a good analogy.

Laura 
I love that. I'm thinking about how I had a bowl of cereal this morning and weighed myself after I had the cereal, I was thinking this is not the right answer the right weight but I'm not losing weight. I also know that you just said that I'm like, I also chose a cereal that's not locally sourced or the healthiest kind or like more options for cereal, than there used to be so I love that analogy. It's great.

Fred Wagner 
I think it's a really interesting way to look at the world and I think it's totally applicable to the way environmental laws develop, you know we are absolutely making these more subtle, more difficult decisions. And we were evaluating the cost. So again let's play this analogy out right. Okay, I want to get a different cereal, am I going to spend two more dollars a box to get it right, am I going. Am I going to go across town to the store to find it because it may not be in the store that I normally shop what level of effort, are you willing to take to do that exactly the same thing for environmental law, what else are we prepared to do, and the cost to do it, to obtain those benefits and how do we make those decisions. That's the challenge is environmental law in the 21st century.

Laura 
And you're exactly right, it was all about level of effort, I'm like, I got this podcast in a couple of minutes, and I'm hungry. Yeah. So here we go.

Nic  
But it's a great transition, I think, you know like, to the infrastructure bill in the Senate has passed, you know, that's where we are now, and for those unfamiliar, it's a trillion dollar bill that would bring new construction projects throughout the US, to expand refurbish roads, highways, bridges, airports, etc, and it's a huge bill, you know But right off the bat, there's, there's an instant NEPA connection that you saw and so you know, again, this is our analogy, this is us getting down to those last few pounds, tell us a little bit about that,

Fred Wagner 
Yeah no, the Senate in a  really bipartisan vote I mean, they got 69 votes for this infrastructure package passed a truly transformational transfer bill that would add $550 billion over current expenditures, not just for transportation infrastructure but for broadband, there's additional for water infrastructure, there's a different money for cleanups hazardous waste cleanups and so forth. A lot is in this bill, but the thing that is now going to become a challenge with respect to the NEPA process is that the legislation included some permitting reform and permanent streamline measures that I think some progressive did not expect to be in that bill. In particular, a couple of provisions codify the Trump administration, one federal decision Executive Order, dealing with the timing and content of NEPA analysis. As you know the Biden ministration rescinded that executive order like one of the first things he did they rescinded that executive order like the first week they were in office, right, and now here we are it's back in the legislation and yet the legislation has the support of the Biden administration. So what, so what gives is the question. Exactly and my theory is that there's a reason it got to 69 vote, Nic, right, and this is one of the reasons I mean I think for years, the Republicans have said that they're all for more infrastructure they love infrastructure as much as Democrat, they love going to ribbon cuttings just as much as Democrats right, but they always had a hook and the hook was but we get really ticked off at how long it takes to build projects in the United States of America we look up to see you know China and building new rail and highways and hospitals, it seems in the blink of an eye, that we struggle and struggle and struggle so they've always been on the bandwagon of reforming NEPA and NEPA streamlining etc. And the MAP 21 the FAST Act had a lot of those provisions, and everything that I'd heard was that the Democrats had said, you know, we've reached our limit. You know we've given and given and given so far we haven't seen any real negative implications for NEPA based on those, but we're kind of done with that, you know, here's the money. Let's do it, and let's move forward as Republicans back and say well you may be done here, but we're not, we're not, we still see some problems out there that we want to address and we want to make them not just best practice we want to make them law. And so you have 250 pages of the 2700 page bill address permanent streamlining now some of them are not very controversial. I don't want to give the impression that every sentence and paragraph is going to draw the ire of liberals but some of them are pretty basic like the federal permanent council was about ready to sunset. After the FAST Act. This bill would extend that. And I think there's a large agreement that the Permitting Council has a role to play and that's not very controversial, it's a good thing overall and people like the dashboard people like accountability and the role of the Permitting council to help resolve disputes between agencies and that's controversial, but when you have a provision that says for example that the alternative section of the EIS should be no longer than, you know, X number of pages which is in the bill.

Nic 
Yeah, that's crazy. That's crazy.

Fred Wagner  
 That gets people upset that people who didn't like time limitations who didn't like page limitations, etc. So that's in there and I've already read that the, you know progressives in the house are seeking to change the bill and one of the things that they're seeking to change is going to be that stuff. So, what's that going to mean is that going to, you know, threaten some of that consensus in the Senate. Or will Nancy Pelosi and the President's people be able to convince those folks that you know, to stand down. And so, you know, see some of the benefits of the bill but you're gonna have to deal with some of this compromise. I don't know. Right. I don't know, but it's in there, and I can tell you it was a bit of a surprise. Again I've spoken to people about it, and I asked folks, I thought that you and the administration didn't want this stuff, and they'll say yes in there but it's not that big a deal we know it's all right, and you speak to other ends of the spectrum you say Hey, how'd you get in there, they all know there's a really big deal. Glad we got it in there so as with everything in Washington the truth, the truth is probably somewhere in the middle, where there's some things that you know, probably are pretty routine on things that are gonna change things a bit. But if this thing is gonna pass, ultimately to the house. Nevermind the reconciliation process, you know the complication of that but just purely on the matter of the infrastructure bill, if this is gonna pass. I do think you're still gonna see some of those provisions stay in there because it's that important to the conservatives who signed on.

Nic 
Yeah, yeah, I mean, he said it's very well said and I guess I always love to hear your perspective on and I love that there's more than one, because there always is right, it's kind of how this thing's where these things work. Right. Do you think that seeing this in there like, you know, does that give us a hint about where the Biden administration wants to take NEPA legislation or is it just for this bill.

Fred Wagner 
It's just for this Bill I think. I do believe that, you know, the long awaited, you know revisions to the CEQ regs that the Administration promised are going to be more aligned with the more progressive views of NEPA, NEPA review, I believe, than the infrastructure bill, as you know, the administration already told all the federal agencies, you didn't have to rush out new NEPA regulations they extended the by two years, the deadlines from the 2020 revisions, and they announced through the regulatory agenda document with the Office of Management Budget. A two phased approach to the new NEPA regulations. Phase one could happen any minute. Allegedly. The first phase is sitting you know and being trying to get approval for release.  Agency lawyers on the government, you know, are looking at it, then that first phase is going to deal with some of the big ticket items, most important to the administration, it's gonna deal with a greenhouse gas analysis. It's going to deal with environmental justice and what should be part of environmental justice reviews, it's going to deal with the highest priorities of the administration. And then I think phase two later on will be more of the nitty gritty stuff. In terms of NEPA review in the regulations and remember, you know, this administration didn't oppose everything that was in the new regs right it wasn't you know, lock, stock and barrel there's some things that they like, and those are the some of the more subtle distinctions maybe at that point dealing with, you know, how to deal with cumulative effects analyses and stuff like that. But, you know, tick, tick, tick, I mean it's time. Yeah, time for the Administration to put its cards on the table I think and and let folks know that litigation that we were following, you know, first two podcasts in the Western District of Virginia, ended up being a giant dud. Because the federal district judge basically said that the organization's challenge to the 2020 NEPA regs is not right, because they needed to do so in the context of specific projects and we didn't know how the regulations were being implemented. I'm not exactly sure I agreed with that ruling because there's certain things in the regulations that you know are being done right now, that could affect folks rights. But that's how the court ruled and so September 2020 regs they're there in force until the administration does something new until they change them, issued the notice of proposed rulemaking to get the rules changed so really the burden is on them to move this along, and as we know from the past, you know efforts to change the regulations, I predict quite confidently that we're going to be talking about them racing to finalize NEPA regulations somewhere between August and December of 2024. It' s going to take that long, the comment period, the legal challenges you name it, they're gonna try to push it along, but this is gonna take that long. And so not only for all the projects that have started since September 2020. And that are you know on the books and people are initiating NEPA reviews now, but for the ones over the course the next three years, it's really incumbent upon the administration to put something in writing and see where it goes. But I think we'll see phase one, again I hate predicting but, you know, I'm thinking, I think around Labor Day or something like that we'll finally see it.

Nic  
Yeah and, man, I was really hoping you'd say 2021 And I knew you weren't gonna. So, I don't know maybe it's don't look millennial when me I just want everything now, you know,

Fred Wagner  
I'm a little bit surprised myself Nic because I thought that they'd had a pretty good idea of what they wanted to do and, and maybe they wanted to see the litigation resolve itself first or and maybe there was some delay because the CEQ leadership took a while to get in place, I don't know but we're hoping to see something soon.

Nic 
Okay, great. And just to kind of wrap up on the infrastructure bill, this is probably an unfair question for you, but is there anything else. One other thing that stood out to you in the bill that says, pass the Senate,

Fred Wagner 
well I mean I do think that there was a recognition that the definition of infrastructure ain't what it used to be, and the inclusion of broadband, the inclusion of you know, water facilities and so forth. I think there is a little bit more consensus that, you know, things that people rely on day in and day out to make their lives better in terms of infrastructure has a lot more than just roads, bridges and transit, and I think I'm glad that that makes sense because people know about it. In that way, and yeah and the reconciliation zones are, what the administration is called human infrastructure, You know, health care, education, childcare, etc. You know, that's obviously, that there's still a political debate over all that, but I believe that the date has advanced than this bill reflects that that you know the kinds of things that people rely on for government to do related to infrastructure, you know that definition has been expanded. And I think there's an acceptance of that and, you know, I think , Secretary Buttigieg put it best when he said, you know, people only care about infrastructure when it doesn't work right. If everything, if everything is working fine, you just you know you just, You get to work or you pick up the phone and there's a dial tone or you turn on your faucet and there's water or your garbage and it's taken away or you hook on to the internet and you have a good connection and that's about it. But if it's not work and you really care about it. That's infrastructure, it's the stuff that you count on rely on every day, but if it isn't there, the quality of your life is measurably affected. And I think there's some understanding I don't know if we'll go as far as, you know, healthcare and childcare and so forth, as a political matter, but I think there's some understanding that those obligations of government and the public sector to provide for its citizens is, it's a lot broader than just the typical definition so that's the other thing that struck me in this bill. I think the needle moved a little bit, you know, it didn't move as far as some people wanted, but it's certainly moving a little bit.

Nic 
And so really well said to Fred's good at this, Laura, I don't know if you know this.

Laura
I learned so much.

Nic
Yeah, great, great, great,

Laura
He's always talking on these terms I can understand.

Nic
Yeah, I can totally understand, which is always the best part. That's why we like having you on.

Fred Wagner  
Yeah,  I've been I've been told that I'll try to prevent that in the future. I'll talk more like a lawyer on future podcasts.

Nic  
No, no. But, you know, you know, just because you had this this expertise, it's another reason I want to ask this next question you know like, so what happens next with this bill? You know it passed in the Senate. And so, yeah, but we're not even close to good to go. Right.

Fred Wagner 
No, we're not.  You know this is tied up in two parts you know the promise that the Democrats said that they will be partnered with the reconciliation budget bill, and we know that final reconciliation goes back could be the three and a half trillion version that passed the Senate, we know there's gonna be a lot of give and take there already, the two senators in the moderate democratic wing Manchin and Sinema, have already said that they expect some changes in that, in other words Schumer won't even get 50 votes in the in the Senate. So we know that has to happen. And then again some of these other push back on the infrastructure bill itself, it's going to be down to the wire. This fall, and, you know, the Senate doesn't even back until the second week of September. So, it's gonna take the majority of the fall to work this all out, and to see if Schumer 50 votes can hold and if Nancy Pelosi is majority in the House, because she only has four or five seat margin. So it's gonna be a razor's edge to get this done, but, you know, at least for the first half of the deal the infrastructure, part of the deal there There appears to be a general consensus, it's just a matter of how hard the pushback will be of the reconciliation bill, to see if folks are willing to maintain that consensus or whether it's just a bridge too far for them to say you know you still have my vote, and it's going to be close. It's going to be close.

Nic  
And I think no matter what happens, we'll have to have you back on and talk through it because it's, like I say this this world we live in now, it is just so much going on, and yeah, we'd have to hear from you. We have to.

Fred Wagner 
Well I'm glad to do it, and it's it's always my pleasure.

Laura 
Awesome, thanks for sharing on the bill today, we are running out of time but there's one more topic we want to talk about because it is important to us and we're going to keep talking about it. And that's environmental justice, so we're wondering if you had any updates for us on Biden's environmental justice agenda. Then, how's it going after the first date, month.

Fred Wagner 
Well, I mean, it is changing every day it's advancing every day. Just this week, for example, the Army Corps of Engineers announced that it was going to be going back and redoing an environmental impact statement for a major facility in Louisiana, with significant environmental justice concerns to the community, both in terms of pollution but also in terms of historical and cultural issues, the likelihood of the presence of burial sites of a certain communities in that area, and that had been litigation for two years and there's a new EIS it's going to be done there, since we talked last the EPA has issued two more memoranda, talking about strengthening, enforcement, specifically to take environmental justice into account to oversimplify it the Laura just means that if you, if the agency is faced with, you know five possible areas where you can enforce laws, and three of them are in places that impact disadvantaged or minority communities, it's likely going to be dealing with the enforcement there as opposed to the to other areas that may not. And so, they are absolutely going in that direction. Since we last talked that White House Environmental Justice Council issued its justice 40 initial recommendations, where not only are we trying to promote environmental justice concerns in general, but the definition of what they want to do means that their goal is that 40% That's what the justice 40 initiative is about 40% of federal expenditures should be to that benefit of disadvantaged minority community. So not only trying to prevent problems, but try to spend money where there's an affirmative benefit that's being identified that of course, affects our NEPA world because agencies now may be asking, Okay, just, just don't tell me about disproportionately adverse effects, but can you also maybe think about defining for us, beneficial effects to these communities so that we can get quote credit for it and quote, in terms of this justice 40 initiative so that is being advanced, and then I think very soon, you're going to see proposal to amend the Clinton era executive order environmental justice that's going to be amended and changed, and I think you're gonna see improvements to some of the tools available to professionals out there dealing with environmental justice impacts, I think, EPA is going to modify tremendously its EJ screen tool that's available right now I think they're going to be amending that in the very near future. I mean, in short, things are happening every day and the next big shoe to drop is the one that we talked about earlier which is how the CEQ is gonna say environmental justice concerns should be incorporated to NEPA reviews and that's definitely going to be part of that phase one proposal as soon as it comes out. So it's literally you have to check your mailbox every day Laura to see what's going on from the different agencies in the administration as far as EJ concerned.

Laura  
Great. It's good to see it moving forward in a positive direction. We're seeing it play out here with the decision to take down Highway 81 that runs through Syracuse and there's been some protests and talks, that's been a lot of the holdup and trying to figure out what to do with it so it's good timing for that, I think. So that's the end of our time Fred goes by so quick, anything else you want to touch on before you go.

Fred Wagner 
I know, I just as always want to speak to stay healthy, stay safe out there and I look forward to our next session.

Laura
Awesome, thanks for being here.

[Outro]

Nic  
Thanks, Fred. And that's our show. Thank you Fred so much for joining us today. It's always fun to hear from you and, you know,

Laura
And educational.

Nic
yes, yes, we always learn so much and it's really digestible, I love that, you know, which is a play on the diet thing we did so,

Laura
Yeah, no cereal for the next week.

Nic
Yeah, for either one of us Yeah. As always, please be sure to check us out each and every Friday, and don't forget to subscribe, rate and review. see everybody.

Laura
Bye.

Transcribed by https://otter.ai