Courts Reshaping Agency Power, Uncertainty Over NEPA Rules, and Sticking to Core Environmental Values with Fred Wagner

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

On today’s episode, we talk with Fred Wagner, principal environmental advisor at Jacobs about the courts reshaping policy, NEPA uncertainty, and sticking to core environmental Values.  Read his full bio below.

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Showtimes: 
1:42 - Do you know your NEPA terms?
8:09 - Interview with Fred Wagner Starts
24:17 - Alligator Alcatraz  
31:24 - What are defensible exclusions now
46:29 - How do we balances changes with our values

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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.

Guest  Bio:

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

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

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

Music Credits
Intro: Givin Me Eyes by Grace Mesa
Outro: Never Ending

Transcript

Hello and welcome to EPR with your favorite environmental enthusiasts, Nic and Laura. On today's episode, Laura quizzes me on NEPA terms. We interview Fred Wagner about the court's reshaping agency power, uncertainty over NEPA rules, and sticking to core environmental values. And finally, here are some random fun facts about capybaras, the world's largest rodent. Despite their pig-like proportions, capybaras are semi-aquatic and love hanging out in the water. They're highly social. They tend to live in groups of 10 to 20 individuals, and they tend to live around 12 years in captivity, which is almost double their lifespan in the wild. I'll just add that they're also kind of like adorable and seem to have no mean temperament at all in their, their vibe, so that's pretty cool. 

Hit that music. 

ACRA's 31st annual conference will be held in Raleigh, North Carolina from September 11th through the 14th at the Sheridan Raleigh Hotel. This year's conference theme is Policy and Protecting cultural Resources, and it is intended to explore how policy intersects with the protection of cultural resources. This includes federal policy, state policies, and the involvement of communities and other stakeholders. Register now at www. ACRA-CRM.org. Let's get to our segment. 

All right, so, OK, today's segment. 

Yeah, we talked to Fred. We did talk to Fred and I have, I would like to do a speed round of questions for you. Oh no. Related to policy definitions. OK, cool. Ready? No, speed round just means like, give me your fastest response of what it is as quickly as you can. Right, because then, you know, some of our listeners who might not know what these terms are, might have a little bit of context before we roll. Very fair, very good. Now I know what you were doing, yeah, OK, all right, cool. Here we go. Ready? Let's start easy. Yeah, yes. Environmental impact statement. The big document that we write for big projects. OK, what's the trigger? The trigger, like, it would be like what causes it to actually get to a certain level. So there's a trigger for it being an environmental assessment, trigger for it to be an environmental impact statement. It's like the, what is the federal trigger is basically like, what is it? Is it a federal project? Is it a major federal action? That's what it means. OK. And then the other one I'm already actually forgetting, uh EAS. So there's an EIS EA and CEA, the next one. So, EAs are environmental assessments. CEs are categorical exclusions. You can also hear them, those are called CAT X's and it's actually quite adorable that we have multiple abbreviations for the shortest, uh. NEA, the document that always tickles me actually. 

But so they're just the three levels of NEPA. So there's categorical exclusions are the simplest and easiest, usually take about a month. EAs are kind of a mid-tier one. They usually take about a year, and then EISs are supposed to take 2, but often take 5. So, OK, hence when we get to the interview, your prize at a 20 day EIS. Yeah, yeah, usually, yeah, the standard for EIS is 2 years, so doing it in 28 days doesn't make any sense. Right. OK. Now, let's back this up. NEPA, NEPA, ah, National Environmental Policy Act, that is the main way that federal agencies comply with natural environmental law just in the country. So that that's kind of like an umbrella statute that everybody gets to kind of put everything in one place, so you don't have to go looking for the Fish and Wildlife Service for um the Environmental Endangered Species Act or Clean Air Act, the Clean Water Act. It's all in one place. We're all talking about these actions in one place. OK, OK. And up next, we have one that is mitigation Fonzie. Mitigated Fonzie is, OK, so imagine you have a project that if you do nothing to it, right, if you just build it the way it's supposed to be built, it should be, be an EIF, right? So maybe it's in critical habitat. We'll say that. So it's, it's gonna impact an endangered species. But if you build new habitat for the species to offset the old habitat, You are mitigating the issue away, so it's no longer an issue. You've now mitigated it from an EIS to an EA, so you've reduced the impact to it, and that's not usually how they work, honestly, because changing critical habitats doesn't really work, but that's the idea anyway. OK, what's the Fonzie part? Oh wow, great, great, I don't even think about this. I don't even think about it. I, everyone knows what a Fonzie is. What are you talking about? And I'm like, everyone knows it's a medication. 

What's the Fonzie? Fonzie is a finding of no significant impact. When you get a Fonzie, right, which is something that an EIS doesn't have, actually, it's only for EAs and only for environmental assessments. A Fonzie finding of no significant impact is actually saying. We did the analysis. Nothing significant is happening. Therefore, the project, you know, you can make the decision, and our decision is XYZ based on the action. So that's something that shows up for EA's. So EIS's will have something called a rod, which is a record of decision that shows this is where we have significant impacts, and this is how we're going to manage or mitigate them, but there will still be significant impacts, and here they are. OK. And That one always cracks me up when Fred says it because to me Fred is like the Fonzie of attorneys. He's like so cool he's a New Yorker, yeah, yeah, yeah. Oh man, I love that. All right. Last one, I think, and I'm probably say this wrong too. Chevron deference. Yeah, so Chevron deference was a case years ago and it was like Chevron as in The actual oil company Chevron, what you're thinking of. So they just called it Chevron deference, like, you know how something just gets a name, but it's basically like Chevron deference going away, what that means basically is that the agencies no longer have the ability to just tell others like, hey, we are the decision makers, we are the experts, you have to listen to us. And that Chevron case initially, that's what was said. It's like, the experts are telling you. This is what's supposed to happen, so you have to do what the experts are telling you. Now, Chevron deference is saying. is gone, that means that the Congress is actually going to be deciding what the agencies are telling other people what to do. 

So when I was saying earlier, it's like the removal of Chevron versus the seven county case, right? So, seven County gave agencies deference. Chevron took it away and it's really confusing for lots of people, but like for me, it's, it's basically the agencies are now able to tell themselves what to do and they can follow that, but they don't necessarily have the ability to tell others what to do without Congress's approval. And that's the difference. It's, it's, it's silly, but yeah, that's where we are. Fascinating. Those are the ones I wanted to cover, so when people listen to this interview, they kind of can be engaged and follow along. And uh yeah, and if you want to learn more, you know, NAEP has NEA training workshops all the time. That's true. And actually, um, at the conference, as Fred mentions in the interview, him, Pam, who were the other two, Michael, Michael, they always get together and review cases as well. Yeah, case law update, always very fascinating. There's another one coming up as well. They do like a virtual one as well, so worth checking out on NAEP.org. Yeah, all right, let's get to that interview. Good deal. 

Welcome back to EPR. Today we have Fred Wagner, principal environmental advisor of Environmental Solutions for Jacobs, and he's also our go to legal correspondent here to help us make sense of the whirlwind of regulatory changes coming out of the district. Great to see you again, Fred. It's great to see you both. Yeah, Laura. Hi. You know, like, Fred, I'm gonna start there. There's so much going on sometimes I feel like it's hard to keep track of it all, right? I have a theory I'm going to pose to you at some point, but I want to know like what else am I missing? What is the new stuff since the last time we talked? Honestly, we haven't talked since 7 County, so that case has been decided, right? We know the outcome of that. Maybe we start there and then we work on everything that's come out since. Yeah, you know I know the outcome? Yeah, you don't know the outcome? Everyone knows I had come. 

No, that I, everyone that I know knows yeah yeah yeah. So Fred, like, you know, it's been a while since we've had you on, like, uh, the seven county case was decided. Honestly, I know there's a lot going on, there's been a lot of things going on. I could start there, I could start with. Union Station and what's happening in DC. Yeah, why don't we start there? I mean, it's just, you know, for, you know, for people listening around the country, just see what's going on. On the televisions. Yeah, it, it is a bizarre way to live and work in the city now. You know, I, I, Union Station is my station of choice. So when I work downtown at, uh, the Jacob's offices there and You know, two big Humvees and National Guardsmen sitting right outside the metro station as I walk by every morning. And what's the strangest thing, of course, is that, but for their presence, everything is exactly the same. I, I, I see the same people when I'm fucking out of the metro, the same. Folks who cost me in the station or at the sad for the most part are there. Uh, the cabs are still there. But yet, there are these huge vehicles and, and people in uniform right near the station. And, and that's been the case, you know, near a lot of the sort of public tourist areas around town. So it's really bizarre and sad. What we're seeing is a real reduction. In the number of people coming downtown. It's an impediment for people who to do that. Maybe less so for the tourists, perhaps, but certainly for the folks in and around the DMV who like to go to the district for dinner or for shows or whatnot, we, we don't wanna. Yeah, I mean, gosh. Yeah, I, I literally canceled a night in the city just because I didn't feel like dealing with. The possibility of going through all that because it's just exactly. 

So what's the possibility? Are they harassing people or stopping people or they're just there? Well, that's a, that's the thing. I mean, in 97% of the time, they're just standing there. Yeah. And, you know, the 3%, when they're looking for something to do, they're doing non-police stuff. There's stories of them picking up trash around town, which again, I'm grateful for, you know, keep picking up trash. I don't know if we need them for that. Um, they are clearing out homeless encampments, you know, they're, they're doing that. And then there are certain places, certain places where they are enforcing laws in concert with the local police, but those are the exceptions to the rule, and there hasn't been a marked increase in arrests or things like that in the city since they've been around. But, you know, right now they're not going anywhere. So it's, it's been a real bizarre time to be there, I gotta tell you, as someone who's worked in the city now for nearly 40 years and have gone through so many different phases and stages of, you know, the district. You know, neighborhoods come and go. They rise and fall. The Capital One Arena gets built. The Nats Park gets built. The neighborhood behind Union Station gets built, and you know, other places, you know, rise and fall, convention centers torn down, and new ones built, and you see these rhythms in the city, but you certainly. I have never felt it like it is now. Uh, so it's a strange thing. Even going past the Supreme Court, we're gonna talk about that in a minute. Yeah, you know, you, you walk by, you see people outside the Supreme Court. They'll be, uh, they'll be back out there in October when the Supreme Court comes back in session for sure, as, you know, patrolling. So it's a sad thing, and yeah, I just, you know, pray it doesn't spread to too many other cities because I think the people who live there are, they're not supportive of it, and it doesn't necessarily make life better for folks. It's, you know, I, I mean, if it's being candid, like going through a checkpoint on 295 in the morning, it's not great. That's not great for traffic, just by itself, which already stinks here. Exactly. That's the one that really, really got to me. I'm just like, OK, you gotta be kidding me, that we have to go through this right now. So yeah, it's not great. I don't love it. But we'll persevere, we'll persevere, we'll get through it. So to happier times, well, for me at least. Because I won. 

Yeah, the, the decision came out, the decision came out at the beginning of the summer, Nic, and it was an 8-zip, you know, victory. And, you know, we got everyone on the court, except for Gorsuch, who recused himself and was cheering on from the sidelines. Um, but, you know, we got the liberals to join the majority opinion. And the seven county, the thrust of the seven county ruling was what Justice Kavanaugh called the Need for a course correction in the way NEPA is handled in the courts following agency action. And that's just a fundamentally important and meaningful statement. The opinion reads a lot like a policy statement, more than a legal opinion in many instances, because that's what it is, because it is. I, I mean, it, it reflected the majority, the, the whole courts, but, you know, Kavanaugh's view that the process had become too much, too involved, too long, too complicated, and courts weren't giving the appropriate deference to agencies when they went through all that. So as long as the agencies did a reasonable effort at looking at alternatives, looking at impacts, the Supreme Court said was that should be enough. That should be fine. And also, uh, agencies shouldn't have to look at an overly expansive scope of effects beyond the project itself. If you recall Seven County, we were dinged by the DC Circuit for not looking at air emissions from refineries in Louisiana, and our railroad was proposed for rural Utah. And the and the Supreme Court, very common sense said that doesn't seem right. And even the liberals on the court, in the concurring opinion, the liberals said, you know what, even if you had all that information and you could assess it in a way that was reasonable, it doesn't contribute to the agency's decision. The Service Transportation Board doesn't have jurisdiction over any of that. So how would that information educate the decision maker, even the liberals said, You know, so it was a slam dunk victory, and so then the question immediately became, Now what? Yeah, now what? And over the last couple of months, we've seen it. Yeah, and we've seen the now what in, I'd say 3 major ways. First, we're seeing court rulings coming down citing seven county. With amazing amounts of deference to the agencies. They're listening. 

They're listening to the Supreme Court, and, you know, they're reviewing it. They're taking what they call the hard look still, but they're not second guessing. They're not nitpicking, and they've taken the Supreme Court ruling too hard. And it isn't just one, Nic and Laura. There are, right now, at least 8 or 9 rulings out there. Where federal courts have said, you know, we've seen these arguments, the people challenging the NEPA review say it wasn't done enough, but you know what? It's not our job to second guess. And that's been that. So there's been a, a very strong, strong trend. To accepting the Supreme Court's caution about deference in a real way. Second major thing that's happened is, you know, at least a dozen different federal agencies have now issued their own NEPA procedures. Yes, yes. And what they did was they relied heavily on the messaging of seven County. Yeah. Now, you know, there's gonna be arguments about whether the administration's procedures take 7 county and extend it too far, possibly, but there's no question that they relied on it, because all you have to do is read the procedures and they quote the case. Yeah. They quote the case in their new procedures. So, you know, there's so far, I've only seen one agency that has retained their NEPA regulations, and that was the Federal Highway Administration. Federal Transit Administration, Federal Railroad Administration under USDOT. All the other agencies that have issued interim final rules in the Federal Register were withdrawing existing EPA regulations and relying only on procedures and guidance. Right. And those procedures and guidance, in turn, relied very, very heavily on seven County. Wouldn't they say like they they're kind of, I don't wanna say they're identical, but they're all really, really similar to each other. And that's a great point. 

So when folks said, hey, wait a minute, how are we gonna follow everything that's coming out cause there's, you know, dozens of different agencies and sub agencies, how are we gonna follow all these rules? When you take a moment and you do a, you know, an overlay of one agency versus the other, you see the common themes coming up over and over and over again. There are some differences, right? And I think the option that the administration chose to allow agencies to write their own procedures was to grant them the maximum amount of flexibility. Yeah. The maximum flexibility, so that if there is a difference in the programs to one agency, you know, they could take a different tack. The best example of that is the Department of the Interior. Department of the Interior, because they are, you know, the tip of the spear for the administration's energy policies have Instituted new policies to do EA's in 14 days. EIS is in 28 days for certain projects that they favor, and they can do that because as a guidance, not as a procedure, but not as a regulation, they have that flexibility to apply these new rules on a potentially a one-off basis. And we've seen some of these NEPA documents being done that quickly for certain types of projects. 

So the second major way was all these new rules, guidance, and procedure that's coming out from the agencies, and there's more to come. You know, we saw the first tranche of them at the end of June, early July, and there's gonna be another batch of them because they have to be finished by next year. Right? You know, I, I arguably, many of the important agencies have done their work already, but there's a lot more to come. There's a lot more to come. And, you know, I think the third way it's had a major impact is on Congress, is on the legislative branch. And we're already seeing proposals that Congress is, uh, I know we're recording today, at the end of August, Congress comes back next week. And the new legislative session starts, and already we've seen some legislative proposals dropped for more NEPAA reform, more permit reform. And if you read some of the language that's been dropped, lo and behold, it almost quotes the seven-county opinion verbatim. So that when I said last year that the potential impact of this case, I couldn't understate it, again, I was right. I, I. I'm not right all the time, but I seem to be right about this stuff a lot. And, but it's, it's a huge impact, and it's gonna continue to have a huge impact, you know, going forward as we see some more of the regulations come out and some more of the legislative proposals come out. Now, the one caveat is we have not yet seen new NEPA cases. By that, I mean, NEPA documents performed, completed under these new procedures. And then challenged in court under the new framework of seven County. Do you see what I'm saying? So a lot of the decisions I've seen so far, decisions that have said, hey, this has already been done. The case was litigated, we had all the briefs, we had oral argument. We were just waiting to see what the Supreme Court told us to do. 

Hey, they told us what to do, we're done here. That's fine. I mean, that's important. But what's really gonna be important is when we have a brand-new EA EIS, and, and there's another point I'm gonna make in a minute. And then the course is, OK, we have these new procedures, these new guidelines, we have the Supreme Court's, you know, instructions to us on how we should review this, and voila, this is how we're gonna do it. We don't, we haven't seen those yet. We've seen 11 so far as of the date of this recording, and it's a fascinating one, and it goes to my other point that everybody's got to be aware of. One of the common themes in all the procedures and guidance, and again, that the little bit of regulation that came out, that you point out, Nic, and I'm sure you, you've spotted this, is a concentration of the agencies on whether Nipah is triggered at all. Yeah. In other words, many of the procedures say, hey, we're gonna look carefully at whether there's a major federal action. That phrase, major federal action. Now, for years, and I'm talking years, like 40 years. We haven't been looking at that. It was just assumed if there's federal approval. If there's federal money, that's it. That's the hook. 

It was like the principal sold small handles. There were small handles under NEPA. If either of those things happened, you were doing NEPA. And that's because early on, after NEPA was passed in the early 70s, the agencies were being kind of stubborn about complying. Can you imagine? Can you imagine? I don't, we don't want to do that. Why should we do that? And so they litigated. They litigated. Well, it isn't major. And then they said, Well, even if it's major, it's really not federal, you know. But if it's major and it's federal, well, maybe it's not really an action. I mean, they were literally parsing every word, just to try to get out of it. And eventually, the court said, just stop. Just stop. And they did, because they said, look, it's obvious what Congress had intended here. They want the federal government to look before it leaps. That means whenever it leaps, it should look. And here are the handles, and their approval handles, and there's money handles. That's it. Go away. Well, here we are, like 40 years later, and the administration has said, no, we're going to parse that phrase again. We're gonna parse it, and if it's not major, we don't think NEA might be triggered at all. And so what does that mean? Well, what if it's just a little bit of federal funding? 

It's a million-dollar project and the feds are only given $50,000 like a, a seed grant. I'm just making this up. Right, right. Well, I anticipate arguments from agencies. To say that's not a major federal action. No NEA. Or what if it's just a loan? We're just loaning money. That's all. And, and all our interest is in getting money back for our loan, we don't really need anything else to do with the project. Or what if we're just doing, you know, giving money for, for planning, but we have nothing. To do with the implementation, the construction, the ongoing operation of the thing that's being built. Well, that's a very small federal role. There's gonna be plenty of instances here where the administration's gonna say, look, we don't take applies. And I said, we had one, and there's already been a ruling on it that will be appealed, and by the time this is heard, I'm sure an appeal will be noted. And that's the ice facility in the Everglades. Yeah, yeah, I had it written down. I had it written down. I was like that's the first one right there. Yeah, that is number one. And so what happened for ours, that's alligator Alcatraz is what we're talking about, not something else. I'm not, yeah, that's the phrase I don't want to use it. I know, but that's what people know it as, so we just want to make sure they're not going. Is that a different? No, same thing. No, that's the same. Well, fair enough, fair enough, Laura. I was, I was trying to please omitted from here on out. Just wanted to make politically neutral generic. I mean, it's, it, it is just what happened. That's what happened. It is what happened. So they built the thing and they did 0 NEPA. They didn't do an EA, they didn't do an EIS. They didn't declare a categorical exclusion. They didn't do any level of NEPA at all. And people sued, and they sued in part. You know, building in the Everglades is pretty bad. It is a very sensitive ecological area, and you ignored all that. And the district court judge last week said, you know, you're right, they did, and they shouldn't have. And there's a bunch of other stuff in the ruling. It's 80 pages, but there's about 10 or 15 pages where the court goes into detail, explaining why, I think it was that she rejected. The federal government's argument that it was not federalized.

They tried to argue that the facility is really being built and operated by the state of Florida. Therefore, it's really not a nice facility and so no NEPA. That sounds familiar because that's consistent with that guidance I just described to you. But the district court judge said no. And she went on for like 10 or 15 pages about, I can tell you about all the different ways that ICE is involved in the management operation of this facility. Of course, it's federal. Right. And so she ordered it, she issued an injunction, I think ordered it deconstructed within 60 days. Now the federal government's gonna appeal before that time. There's no doubt. But my point is, that is the very, very first case that came out testing this theory of major federal action. And it just happened to be in a very highly publicized and controversial, you know, project, and who would have known that NEA would rear its head in the immigration debate. Yeah, I was shocked too. Literally, you know, for myself who doesn't not watch news, no surprise to anybody. When I heard it, someone mentioned it actually on the podcast, I had to run and go, wait, what? I didn't know that. Then then I'm looking at it and I'm, I'm thinking. It's being underdone because of human rights issues. And I was actually surprised it was environmental. Yeah, it was an environmental case, crazy. I mean, with everything else that's going on. So we're gonna see more of this. The problem, of course, is how does a community know that Nipah hasn't been triggered? I know that's actually I was literally about to ask you that. I think you're just flattering me. You're just telling me everything you're gonna say. It's not true. I mean, I literally have alligator Alcatraz written right here. 

All right, OK, OK. I, I'll give you credit for that. But yeah, so the question, it's like I've been telling people at speeches, it's the old Sherlock Holmes story, you know, when, when Holmes solved the mystery because the dog didn't bark. I, I don't know, I, I don't know if you remember that story. But yeah, the, you know, somebody's sneaking in and the dog didn't bark, and he and he solved it because that meant obviously the dog knew the person that was coming in to do the crime and the dog didn't bark. Well, how do we know in these instances if the dog doesn't bark? Right. Now, now with the ice facility, the alligator Alcatraz, uh, they built it. Yeah. So we know. But, you know, for other instances where an agency decides that their financial obligation is too small or they make a decision that there's not a big federal role in the, in the project moving forward, they're not gonna document that. They're not gonna put something in the Federal register. Hey, just letting everybody know this project out there, we're not doing NEPA. Yeah, yeah. That's not gonna happen. And there's gonna be like 2 or more, but at least 2 major threads of litigation that's gonna happen now through the fall and into next year. First thread is that, this major federal action thread, you know, how many instances where You know, the agency is gonna take that position and then folks find out about it, then they have to run to court, right? So that's, and they're gonna test it. Does that work under the rubric of, you know, the existing statute? And some county didn't touch that. 7 County didn't touch major federal action. This is the administration's own making, as is their, you know, it's their right to do so under the procedures, but that's gonna be tested. Second major thread, and again, I'm sure you noticed this in all the procedures, it's just a huge emphasis on categorical exclusions. Yeah. They're gonna be trying to fit as many actions into category CEs as humanly possible. And you know that, because the procedures have this hierarchy of steps that each agency has to do whenever there is a major federal action, then they're not gonna make that argument. Is there a CE? Step one, if there's not a CE, can you amend an existing CE? If you can't amend an existing CE, can you borrow a CE from another agency?

 If you can't amend one and you can't borrow one, should you write a new CE, right? In every set of procedures from all the agencies, there's this whole new thing, so the, the message is bloody clear. You should be using CEs as much as humanly possible. And if there's ever been a doubt that at least in the short term, The number of full EISs and even environmental assessments that are being prepared by the agencies is going to drop precipitously. And so whereas in years past, at the annual meeting, you know, with my buddies Pam and, and Michael, and Melanie, you know, when we talk about all our cases, you know, we had a very few cases on categorical exclusions. Now we're gonna have more. Right. Now we're gonna have more cause there's, it's just gonna be used more. And just this whole dynamic of, you know, how can the agency legitimately, how can an agency legitimately take a project out of an EIS world and into an EA? How can they legitimately take it from an EA to a CE? All that's gonna be happening more and more because the procedures send it. A clear message to all decision makers at every agency that the level of review is gonna be the lowest level possible, defensible, and that's the direction they're gonna be going. So, oh man, OK, I gotta ask then, when we talk about defensible, because I think that's a lot of times where like people are wondering cause some of what's happened and some of what's changed, it's like, OK, but if we think this is gonna get sued. We still are gonna do our EI or EIS because we think that this is gonna lose as a categorical exclusion. Like, I'm sure that'll still happen, but how are agencies gonna be able to determine like what is actually defensible? Like we kind of are, I almost feel like we're in a blind spot for, like, what the courts are going to decide. We don't really know. So what I've seen is agencies be cautious still, and maybe there's gonna be some cases that come down to change that, but What counts as defensible? Can you, I mean, like there's obvious ones where it's like, OK, this is very clearly in critical habitat, so you can't say that this is the CE because of X, Y, Z, but maybe there are others that are grayer where they could. 

Yeah. Yeah, and this is where Seven County comes back in, because the message of Seven County and as we've seen from some of the cases that have been Handed down so far is, you know, this greater deference. And so the question is, are courts going to apply the deference to those types of decisions, Nic, in addition to the more traditional decisions about was there a reasonable range of alternatives, and did you look at the effects enough? Those, it's pretty clear. But what about these fundamental decisions, like, oh, You know, we've mitigated enough, so there are no significant effects because we put in mitigation. So this is a mitigated Fonzie. They can be doing that more. Or, oh, you know, this may not fit precisely into this CE but we're going to amend it slightly to do so. And is that kind of procedural step legitimate? I mean, those are the types of things where seven County may not answer, but I'm telling you, what, where you've seen some caution, I've seen the opposite. OK. I've seen agencies saying, look, You know, we have greater freedom, greater liberty to do things here now that may not have been defensible in the in the past under the rubric of some courts taking, you know, the second guess approach. But now, Supreme Court has said not to do that, so it's gonna be worth a chance. And I'm not a betting man, but if I were, I would say that this Department of Justice would be more willing to take those chances and let somebody challenge it. And see what happens in court, given the new standard. Again, that's what I said. Remember this, I said, the new generation of cases may be different from the ones that have been pending. That's part of it. And I've been counseling clients to say, look, all things being equal, there's only 2 choices in this world, and they're not. But there's only 2 choices in this world. 

You know, being more aggressive or being more cautious. Right. Your compliance strategy now should lean towards more aggressive, right? And those are the only two choices. Now I know it's not, yeah, yeah. I have seen some of the other two. It's not like I've only seen caution, so it's not, it's one of the reasons I wanted to ask cause like, uh, you know, sometimes we get in our, our perspectives and Some clients, it doesn't matter and some clients are like, well, we're still gonna do what we do until we see that thing change. So that's interesting to see. But the other factor I add, Nic, the other factor is that there's just where we started the conversation, there's just so much coming out every day, affecting every aspect of environmental practice. That the other reality is that are the usual suspect opponents of projects or project development. There's so many things that they have to cover, so many things that are going on. The other reality is some things that they might otherwise choose to challenge in court, they may not. Because of limited resources and choices they have to make about what they're going to pursue. So, again, all things being equal, I'm gonna give a false choice again. If you are an advocacy group, an NGO and you want to save your shekels to file a challenge against the revocation of the endangerment finding under the Clean Air Act, or To file an APA litigation over a decision that a particular highway isn't gonna trigger an EIS because federal funding isn't enough, where are you gonna put your money? I'm betting it's on the endangerment funding. Yeah, or, you know, the interpretation of what is that's gonna come out in the next month. Which we know is going to be very narrow. And so, you know, these are fundamental things that have broad implications across the country that may garner their money and attention and legal resources more than even individual projects that on any other given day, that same organization might say, you know, this is ridiculous. We're gonna, you know, see you in court. They may not have the wherewithal to do it just because there's so much out there. Oh my gosh. 

So you're telling me that these organizations have to decide which lawsuit they would like to deliver and spend their time on? Yeah. I mean, they, they, they have to raise money. They have to raise money. And there's only so much out there. And so, again, I don't, I don't work with those organizations, but it, it's common sense. To think that they're looking at each other around their rooms and saying, this is what we got in our coffers. These are the 1314, 1520 things that we have to address. Where are we going to devote our time and energy? Yeah, I can see, Laura, yeah, I could just see it. I can see the concern on your face. I can just see it. Well, it's, you know, like we all know, is one issue just snowballs into 1000 other ones. And the bigger issues, like you said, this is just still the beginning. Yeah, right now, on the one hand, You know, there's that reality, as they, I think the Republicans have used the phrase flooding the zone, they're flooding the zone with everything, and certainly they're doing that in the environmental sphere, in addition to everything else that's going on. But the next phase of all this will be when courts finally start providing feedback and then Challenges go up to the appellate court, and then they can't all go to the Supreme Court. Supreme Court's not gonna hear everything, trust me. Right. Yeah, they can. It's hard enough to get my, it's hard enough to get my case. You're environmental case. But that's gonna be sort of the next phase. So things like reliance on the emergency declaration for the energy executive orders, that ruling hasn't come out. And other rulings where there's a reliance on the Emergency declarations that that's going to affect a lot of this. You know, the interpretation of the statutes from the agencies under the Clean Air Act for the endangerment finding falls squarely under, you know, the Loper Bright decision and the revocation of the Chevron deference principle. 

That's gonna be a major decision that comes out that's gonna have, you know, implications for many of these regulations, not just one of them. And then there's gonna be the other types of challenges where if the federal government isn't pursuing enforcement in certain of these uh disciplines, air, water hazards, then those statutes that allow for citizen suits, you're gonna see citizen suits filling that gap, or you're gonna see states. Fill the gap on enforcement in the states that, you know, he in that direction. And so, the first phase is keeping track of everything, filing challenges to the fundamental things that environmental groups and others want to challenge just to see if they could stop it for at least a short period of time. And then the next phase is gonna be, well, where else is this enforcement gonna happen? How else is this gonna happen? And I'm predicting a lot of activity on the citizens who side. I'm predicting a lot of activity on the state side, and the federal government doesn't control that. The federal government doesn't control that. And so, you know, that dynamic is gonna make things. I think more complicated still, because whereas we used to have our focus on, you know, the federal family and we sort of use that as the bellwether for all things related to litigation in the environmental world. And yeah, there was state stuff going on for sure, but we really looked to EPA. 

We really looked to the Federal, Interior and the Army Corps. Who knows where it's gonna come from now. It can come from multiple directions. And so federal litigation may become more challenging for the environmental NGOs because of seven county principles, because of local bright, you know, lack of local right deference. There could be a whole bunch of things that make it difficult. But where it makes it complicated and difficult for developers and for industry is the sort of diversity of challenges and directions where these challenges will come from. Yeah. And so, you know, you're gonna have to be looking left and right and behind you because you don't know exactly where all this is gonna happen. So, hey, Mazel tov, they overturned the PFASS Superfund standards. So we're not gonna have PFAS covered as hazardous substances for cleanups under the Superfund statute. Hey, great. That's great. Well, the state's gonna turn around and do something, or there's gonna be a. Community group that's going to file a toxic tort case. Exactly. Yeah, you know, so it's gonna come at you from lots of different directions. So, so Laura, when you made your port earlier about, you mean they really have to choose? I mean, yes and no, they do have to choose, but there's going to be more players doing more things in different ways to sort of engage this whole issue is my prediction. And that makes it more complicated, but I think that's what's gonna happen. OK, so, oh gosh, man, I almost want to go back to. You want to go back to why I stopped being a lawyer because no, I got it. I can be busy until I'm 120. I know you'll never stop working. 

Oh my gosh. Well, let's so like, and this is kind of like, I don't know, maybe, maybe I'm not this isn't even the right question to ask you right now, but there's just a lot of stuff going through ping ponging through my head. And when I hear like a 28-day EIS, like to me, I feel like, and tell me if I'm wrong about this, but it feels like to me. 7 County was kind of like, OK, well, like, the Chevron deference, that going away was basically like agencies can't tell other people what to do without approval. And Seven County was kind of like; they can't tell themselves what to do. And when we have like something like a 28 day EIS that kind of for me stress, first of all, believability anyway, like you still, if it's an EIS and you still need to have reports and filings, how does a 28 day EIS work when you have a biological opinion for that EIS that's gonna require 135 days for the Fish and Wildlife Service to even look and review it before it goes back to you. So, there's other laws that they're gonna have to hit, no matter how fast, quote unquote, you want to do an EIS. So it breaks my brain, like help me sort that out. Yeah, so look, the Department of the Interior is not gonna be using that flexibility for a brand-new proposal that has never been studied before, that needs compliance with these other statutes and so forth. I mean, if they do that that would be reckless, but they're not. What they're gonna do is gonna say, hey, look, there's an action that is a follow on from a coastal management plan, a range management plan, a coal lease plan. An oil and gas leasing plan, whatever. 

And so, there's already been a whole bunch of NEPA analysis and NEA review on this general principle and looking at this general area. What this is, they would argue, I, predict, is a follow-on action that builds on that analysis already. So all we have to do is update it with particularity for this place, this location, and if there's, you know, nothing tremendously different that, you know, they'll say. We're incorporating by reference the prior analysis. We're updating it with information specific to this place. There's no new need for a major public comment period or otherwise, cause we've already approved the leasing plan. We've already approved the range management plan. So why would a particular permit or authorization tearing off of the broad scale planning document need more than 28 days? Yeah. I think that's how it's gonna happen, Nic. Now, again, even for that, there's limitations, and I would agree with you that Yeah, it does boggle the mind a little bit how you how you do that. But what we've seen already is the direction that public participation and public comment now is optional in certain agencies for certain EISs, right? So that's not necessarily gonna be an impediment. So I think they're gonna be selective, right? They have to be. But the history of the interiors program, at least, is one that had, you know, these massive EIS's that that went on for years and years dealing with a particular area, did look in pretty great detail about potential effects of, you know, mixed use of public lands and all that kind of thing. But now they're gonna say, OK, these add-on. Authorizations and permit approvals, where it's triggered by the initial broad scale analysis, and now there's sites specific analysis building on one on top of another, that's where we can do quicker reviews. I think that's where they're headed. 

OK, well, that's, yeah, that's good to know. I I appreciate that cause like it just it really does break my brain to hear. Nobody's told me that. Yeah, I, I haven't had Secretary over in my house for coffee, so I, I don't, I don't know that. It sounds like you're expecting there'll be a tiny bit of common sense in there, the sprinkle. Well, I, I mean, look, the flexibility and aggressive policy is only good to the extent that it can be sustained. Right. Otherwise, you're just using words. So they, they, they, they want to apply these in places where they have, you know, at least a, a fighting chance to have their actions sustained. So that's why I say there's gonna be, you know, you call it common sense. I think there's gonna be some discernment, you know, in, in, in what they do, and, and when they do it. But yeah, I think that's how it's gonna happen. And similarly, when they borrow CEs or they're amending CE's, you know, that's gonna be done in areas where, you know, it's not gonna be the close calls where they do it. I think they're gonna try to do it for the places where their attitude, I mean, not to be too colloquial is, hey, you wanna challenge us? Bring it on. Yeah, bring it on. It feels like a game of Monopoly where there's like the written rules and then there's like the house rules and whose rules are we playing with Monopoly today? I don't know. 

And then you get to like, I have this and I have this much money, let me just make you a deal. Well, well, now you're getting to a place where I'm going not to comment. You, you, you, you may comment as host and podcast extraordinaire, uh, but I, as your humble legal expert, will politely acknowledge and move on. Well played, sir. Yeah, I mean, gosh, it's we're already out of time because it's just, there's so much going on here and I don't know, Fred, if there's something other bit of advice, other bit of policy that you're seeing. Like, what do our listeners need to know about all these changes? What else have we not touched on that, yeah, I, I mean, let me narrow it down to a different question if I can, which is, which is really like kind of the, the hardest question of all. And I got this at an internal presentation I made in the company, you know, and somebody asked, you know, perfectly generally, like, how do we balance all this with environmental values? How do we do that? We have that as a principle as professionals. We have those as you do in your company, you know, as principals as a company. Our clients have that as core principles for their work. So like, what do we do? Because on the one hand, it would be almost per se negligence, not like legal negligence, but, you know, professional negligence. Not to tell your client, hey, this might be a CE now. Or, hey, if we do this or that, you know, we may not have to do a full EIS or even, hey, I don't know if there's a major federal action in the current framework. How can you not say that? 

Right? You almost have to put it out there on the table. But my answer to the very difficult question was, there are still fundamental principles behind this work. That don't change, which is we're trying to reach better decisions by engaging stakeholders and reaching better environmental outcomes. If you're working with a project developer, they still have the hands on the wheel in terms of the project, its features, its elements, it's engineering. They still have their hands on the wheel in terms of outreach to their neighbors. And the stakeholders. They still have their hands on the wheel, even in in terms of what they present to the federal government. Now, are they gonna be able to use the words climate change and an EAS? Not, not in the short term, we know that. Right. But are they gonna be able to do a deep dive into the things that they think are important to them? Yeah. They totally can. And they can fit it into 75 pages for an EA, 150 pages, or 300 for you. They can do that. So my point to the folks who asked the very difficult question was, we will find that balance as professionals, to say, look, here's advice that I must tell you because it may be in your best interest, and the project's best interests, your financial interests to do this, that, the other thing. 

But I'm also here as your ongoing partner, to say that I agree with you. How are we gonna reach a better environmental outcome. If these are truly the resources of concern that we think there's, you know, effects on here, how can we work with you to avoid, minimize, mitigate? How do we do that? If there's a community that's really concerned, and they've asked legitimate questions, how can I work with you to answer those questions, that principle doesn't go away. Right. So even while all this is happening, you know, those principles, I think, are durable, and any professional worth their salt is going to pursue both. And then the last thing I told people is that, yeah, this is gonna be a rocky 3 years to try to figure this all out. And with all the legal challenges that we described and the procedures that are changing and flexibility and all that kind of stuff, it's gonna be rocky. Just try to figure this all out. But just as day turns into night, there's gonna be a new administration one day, and policies could change again. And our job is to try to create something that's sustainable and durable, that can tide, that stem the tide, that can endure. In this administration, or in a subsequent administration, or one after that. And that's not gonna be apparent today or tomorrow. Yeah. But if we do that work and we adhere to our values and our principles, we will create something that's durable. We can, even in this very difficult period. So, it wasn't a great answer, but it was the only answer I had at the time. And I trust that everybody listening is sort of, you know, going through that in their own heads about how they will approach their jobs and their relationships with their clients and their obligations as professionals. And I encourage everybody listening to sort of write me and speak to me, say, this here's how I'm doing it. And I think together, and through NAEP and organizations like that, I think that's our challenge. 

Our challenge is to find something that endures through one administration and even into, you know, January 2029. Right. Yeah, and I mean, it's a great message and I think it's realistic and optimistic, which is hard to do. So, there you go. That's why we have the uh tennis claps right now, right, right. Oh, you mean like the ones on the emojis, is that what that is if we were using the um the sound animations that Nic had purchased at one point and we never actually engaged. Oh gosh, uh. There we go. Is that it? We got that through. I know. No, that just changed your voice for some reason. That was it really? That's funny, yeah. I'm all for sound effects, you know, mostly wild cheers and applause, but that's good. Sound effects are the word I was going for. It's like I was like she's drowning. I'll let her do it. I don't sound animations, I think I said same difference. Well, uh Fred, it's always a pleasure. Like I say, it always goes by so fast. I can't believe we talked this long already but thank you as always for being part of the show. Well, thank you, and I'll continue to keep track of everything, and I look forward to being on the show again uh soon enough. Here we go. Thanks, Fred. Right, bye. And that's our show. Thank you, Fred, for joining us today. Please be sure to check us out each and every Friday. 

Don't forget to subscribe, rate and review. See you, everybody. Bye