1 00:00:07,120 --> 00:00:09,359 Welcome to the landscape, your show about America's 2 00:00:09,359 --> 00:00:12,660 parks and public lands and the Trump administration's 3 00:00:12,960 --> 00:00:15,664 ongoing attacks on them. I'm Erin Weiss with 4 00:00:15,664 --> 00:00:18,004 the Center for Western Priorities in Denver. 5 00:00:18,464 --> 00:00:20,885 And I'm Kate Graetzinger in Salt Lake City. 6 00:00:21,265 --> 00:00:23,105 Today on the show, we're getting nerdy with 7 00:00:23,105 --> 00:00:25,824 John Ruppel, public lands professor at the University 8 00:00:25,824 --> 00:00:27,984 of Utah and a former member of the 9 00:00:27,984 --> 00:00:31,420 White House Council on Environmental Quality, otherwise known 10 00:00:31,420 --> 00:00:32,240 as CEQ. 11 00:00:33,260 --> 00:00:35,500 He's gonna walk us through recent changes to 12 00:00:35,500 --> 00:00:38,320 how the National Environmental Policy Act or NEPA 13 00:00:38,539 --> 00:00:41,579 is being implemented across federal agencies like the 14 00:00:41,579 --> 00:00:43,920 Bureau of Land Management and the Forest Service. 15 00:00:44,365 --> 00:00:46,145 But before we do that, the news. 16 00:00:46,765 --> 00:00:48,704 Well, where do we even start? 17 00:00:49,244 --> 00:00:50,225 A complete 18 00:00:50,604 --> 00:00:52,765 barrage of news coming out of the White 19 00:00:52,765 --> 00:00:55,804 House and Congress since our last episode. So 20 00:00:55,804 --> 00:00:57,984 we're gonna highlight a few of the things 21 00:00:58,045 --> 00:00:59,344 we're tracking here. 22 00:00:59,660 --> 00:01:02,219 First off, president Trump is trying to make 23 00:01:02,219 --> 00:01:04,939 coal great again. Good luck with that. He 24 00:01:04,939 --> 00:01:07,579 signed a handful of executive orders aimed at 25 00:01:07,579 --> 00:01:11,099 increasing coal production on public lands. Those orders 26 00:01:11,099 --> 00:01:14,140 direct the interior department to identify public lands 27 00:01:14,140 --> 00:01:16,895 that contain coal and make it easier for 28 00:01:16,895 --> 00:01:19,135 companies to mine it. We're gonna have to 29 00:01:19,135 --> 00:01:20,974 wait and see exactly how they do that 30 00:01:20,974 --> 00:01:23,375 since the free market has already pretty much 31 00:01:23,375 --> 00:01:26,575 made it clear they're not interested because coal 32 00:01:26,575 --> 00:01:28,275 is just more expensive 33 00:01:28,829 --> 00:01:31,729 than renewables and methane for energy. 34 00:01:32,590 --> 00:01:36,289 Next up, the Trump administration has removed protections 35 00:01:36,509 --> 00:01:37,409 over half 36 00:01:37,789 --> 00:01:39,489 of the national forest system. 37 00:01:39,950 --> 00:01:41,090 Agriculture secretary 38 00:01:41,549 --> 00:01:44,665 Brooke Rollins issued an emergency order related to 39 00:01:44,665 --> 00:01:45,165 wildfire 40 00:01:45,465 --> 00:01:48,665 risk that essentially cuts out the environmental review 41 00:01:48,665 --> 00:01:50,364 process for logging projects 42 00:01:50,745 --> 00:01:53,784 and allows companies free reign over more than 43 00:01:53,784 --> 00:01:55,885 110,000,000 44 00:01:56,185 --> 00:01:58,319 acres of National Forest land. 45 00:01:58,959 --> 00:01:59,780 The justification 46 00:02:00,159 --> 00:02:02,879 for more logging, of course, is reducing fire 47 00:02:02,879 --> 00:02:05,200 risk, but the memo comes on the heels 48 00:02:05,200 --> 00:02:07,859 of an executive order calling on the agriculture 49 00:02:08,000 --> 00:02:11,620 department to expand timber production across the country 50 00:02:11,919 --> 00:02:13,379 by 25%. 51 00:02:13,944 --> 00:02:16,105 And as we've talked about many times on 52 00:02:16,105 --> 00:02:16,844 this podcast, 53 00:02:17,465 --> 00:02:19,784 you cannot log your way out of the 54 00:02:19,784 --> 00:02:20,844 wildfire crisis. 55 00:02:21,385 --> 00:02:24,444 The only way through is with more fire, 56 00:02:24,824 --> 00:02:27,564 especially prescribed burns and natural 57 00:02:27,865 --> 00:02:29,004 low level fire. 58 00:02:29,400 --> 00:02:30,460 But the Trump administration 59 00:02:30,760 --> 00:02:32,540 is moving backwards there. 60 00:02:33,000 --> 00:02:35,740 Politico obtained a draft order under consideration 61 00:02:36,040 --> 00:02:38,860 at the White House that would require wildfire 62 00:02:39,159 --> 00:02:42,620 response times of thirty minutes in some areas. 63 00:02:43,394 --> 00:02:46,055 That hearkens back to the Forest Service's disastrous 64 00:02:46,354 --> 00:02:49,254 10AM rule dating back to 1935 65 00:02:49,474 --> 00:02:51,394 that created so much of the mess that 66 00:02:51,394 --> 00:02:52,614 we're in right now. 67 00:02:52,914 --> 00:02:55,014 That aim to put out all wildfires 68 00:02:55,474 --> 00:02:58,770 even naturally caused ones by 10AM 69 00:02:58,770 --> 00:02:59,590 every morning. 70 00:03:00,930 --> 00:03:03,650 And finally, to wrap us up, oil industry 71 00:03:03,650 --> 00:03:07,490 advocate Kathleen Seguema withdrew herself from consideration to 72 00:03:07,490 --> 00:03:09,189 run the Bureau of Land Management 73 00:03:09,650 --> 00:03:11,750 after a letter she wrote regarding the January 74 00:03:11,810 --> 00:03:12,764 sixth insurrection 75 00:03:13,064 --> 00:03:15,084 resurfaced on Twitter or x. 76 00:03:15,625 --> 00:03:18,264 Sagama, who heads the Western Energy Alliance, wrote 77 00:03:18,264 --> 00:03:20,824 the letter to the group's members in 2021 78 00:03:20,824 --> 00:03:23,224 blaming the insurrection on Trump's lies about the 79 00:03:23,224 --> 00:03:23,724 election. 80 00:03:24,104 --> 00:03:26,360 Now, of course, she wasn't wrong about that, 81 00:03:26,759 --> 00:03:29,239 but she also faced severe ethics concerns due 82 00:03:29,239 --> 00:03:31,099 to the fact that she has four years 83 00:03:31,239 --> 00:03:33,719 refused to release the list of Western Energy 84 00:03:33,719 --> 00:03:36,280 Alliance members and did not disclose the group's 85 00:03:36,280 --> 00:03:38,459 members in her conflict of interest disclosures. 86 00:03:39,165 --> 00:03:41,165 So Sagam is out, and there's no word 87 00:03:41,165 --> 00:03:42,764 yet on who might replace her, but you 88 00:03:42,764 --> 00:03:44,444 know that we will update you as soon 89 00:03:44,444 --> 00:03:45,425 as we hear something. 90 00:03:46,044 --> 00:03:48,205 And I'm gonna keep dead naming Twitter. Elon's 91 00:03:48,205 --> 00:03:49,324 gonna have to live with the name it 92 00:03:49,324 --> 00:03:51,264 was assigned at birth. Fair enough. 93 00:03:55,979 --> 00:03:58,300 Our guest today is John Ruppel. He's a 94 00:03:58,300 --> 00:04:00,539 law professor at the University of Utah and 95 00:04:00,539 --> 00:04:02,539 a former member of the White House Council 96 00:04:02,539 --> 00:04:05,280 on Environmental Quality under president Biden. 97 00:04:05,580 --> 00:04:07,740 Professor Ruppel, thank you very much for joining 98 00:04:07,740 --> 00:04:08,479 us today. 99 00:04:08,825 --> 00:04:10,985 Thanks, Aaron. Thanks, Kate. It's my pleasure. It's 100 00:04:10,985 --> 00:04:12,905 really I'm excited to join you and talk 101 00:04:12,905 --> 00:04:14,284 about NEPA and public lands. 102 00:04:14,825 --> 00:04:16,504 Alright. So let's start off with the basics 103 00:04:16,504 --> 00:04:18,425 because this is gonna turn into an alphabet 104 00:04:18,425 --> 00:04:22,045 soup. First, we have NEPA, the National Environmental 105 00:04:22,345 --> 00:04:24,949 Policy Act that was signed into law in 106 00:04:24,949 --> 00:04:25,850 1970. 107 00:04:26,389 --> 00:04:28,949 It's one of the bedrock environmental laws. It 108 00:04:28,949 --> 00:04:33,209 requires federal agencies to just think about and 109 00:04:33,269 --> 00:04:37,050 consider the environmental impacts of their proposed actions 110 00:04:37,384 --> 00:04:39,625 through a whole review process that involves a 111 00:04:39,625 --> 00:04:41,865 public comment period in science and other stuff. 112 00:04:41,865 --> 00:04:42,365 Alright. 113 00:04:42,985 --> 00:04:45,084 Now let's move on to CEQ, 114 00:04:45,704 --> 00:04:46,204 the 115 00:04:46,504 --> 00:04:49,464 council on environmental quality where you worked. What 116 00:04:49,464 --> 00:04:51,785 is CEQ, and what does that have to 117 00:04:51,785 --> 00:04:52,685 do with NEPA? 118 00:04:53,979 --> 00:04:57,360 Great question. So the National Environmental Policy Act, 119 00:04:57,740 --> 00:05:00,779 in addition to kind of setting forth this 120 00:05:00,779 --> 00:05:02,959 national charter about environmental policy, 121 00:05:03,899 --> 00:05:06,875 and setting up these procedural requirements for agencies 122 00:05:07,014 --> 00:05:09,335 to look before they leave. It also set 123 00:05:09,335 --> 00:05:12,055 up the council environment of pardon me, the 124 00:05:12,055 --> 00:05:15,254 council on environmental quality. So that's housed within 125 00:05:15,254 --> 00:05:16,955 the executive office of the president. 126 00:05:17,574 --> 00:05:20,775 And, basically, it has three jobs. One, it's 127 00:05:20,775 --> 00:05:21,835 to help the president, 128 00:05:22,909 --> 00:05:25,409 develop an understanding of environmental matters. 129 00:05:25,870 --> 00:05:29,089 Second, it's to help the president develop environmental 130 00:05:29,310 --> 00:05:32,110 policies. And then third, to help them implement 131 00:05:32,110 --> 00:05:34,769 those policies and programs, including NEPA. 132 00:05:35,084 --> 00:05:36,704 So if we go back to 133 00:05:37,084 --> 00:05:38,464 1970, 134 00:05:38,925 --> 00:05:41,485 we've got the National Environmental Policy Act. The 135 00:05:41,485 --> 00:05:44,545 next year, president Nixon signed an executive order, 136 00:05:44,605 --> 00:05:47,024 and it directed CEQ to issue 137 00:05:47,509 --> 00:05:49,990 guidelines to all of the federal agencies out 138 00:05:49,990 --> 00:05:50,490 there 139 00:05:50,790 --> 00:05:53,430 about how to comply with with NEPA statutory 140 00:05:53,430 --> 00:05:55,269 mandate. The idea is we wanted to create 141 00:05:55,269 --> 00:05:57,769 a common floor, a common set of practice 142 00:05:58,310 --> 00:06:00,330 across all of these federal agencies. 143 00:06:01,044 --> 00:06:03,524 Those guidelines didn't work out quite as well 144 00:06:03,524 --> 00:06:06,664 as intended because it wasn't clear to agencies 145 00:06:06,805 --> 00:06:09,204 or to courts whether they were intended to 146 00:06:09,204 --> 00:06:09,704 be, 147 00:06:11,365 --> 00:06:14,879 advisory or binding in nature. So a couple 148 00:06:14,879 --> 00:06:16,560 years later, in 1977, 149 00:06:16,560 --> 00:06:19,600 President Carter's in office. He issued another executive 150 00:06:19,600 --> 00:06:23,279 order that directed CEQ to promulgate its own 151 00:06:23,279 --> 00:06:23,779 regulations. 152 00:06:24,160 --> 00:06:24,979 Those regulations, 153 00:06:25,919 --> 00:06:27,919 were intended to apply across all of the 154 00:06:27,919 --> 00:06:30,375 federal government, and President Carter directed 155 00:06:31,574 --> 00:06:34,454 all federal agencies to comply with those. So 156 00:06:34,454 --> 00:06:36,074 it created a mandatory floor. In effect, it 157 00:06:36,074 --> 00:06:36,955 created, you 158 00:06:37,495 --> 00:06:40,321 know, a uniform floor across all federal agencies, 159 00:06:40,321 --> 00:06:41,675 but then those 160 00:06:41,975 --> 00:06:44,555 other agencies could adopt their own processes 161 00:06:44,935 --> 00:06:47,310 as necessary. Right? You know, you think about 162 00:06:47,310 --> 00:06:48,370 the forest service. 163 00:06:48,830 --> 00:06:51,230 They're dealing with projects that are very different 164 00:06:51,230 --> 00:06:54,110 than, say, the nuclear regulatory commission. So they 165 00:06:54,110 --> 00:06:57,149 needed some ability to adapt to their their 166 00:06:57,149 --> 00:06:57,649 missions, 167 00:06:58,029 --> 00:07:00,110 but they wanted to start from a common 168 00:07:00,110 --> 00:07:01,069 floor. So 169 00:07:02,214 --> 00:07:03,735 yeah, I mean, it's basic it's it's a 170 00:07:03,735 --> 00:07:05,675 basic structure. It's the foundation. 171 00:07:06,134 --> 00:07:09,414 And agencies, courts, developers, everybody, the public, they've 172 00:07:09,414 --> 00:07:11,334 been relying on that common floor for the 173 00:07:11,334 --> 00:07:12,634 last forty seven years. 174 00:07:13,334 --> 00:07:13,834 So 175 00:07:14,290 --> 00:07:18,129 on February 25, the CEQ under president Trump 176 00:07:18,129 --> 00:07:21,730 issued an interim final rule rescinding its own 177 00:07:21,730 --> 00:07:24,389 regulations regarding the implementation of NEPA. 178 00:07:24,770 --> 00:07:26,930 First of all, did I explain that correctly? 179 00:07:26,930 --> 00:07:29,350 And second of all, what does that mean? 180 00:07:29,954 --> 00:07:32,355 Yeah. That's that's pretty much it, Kate. On 181 00:07:32,355 --> 00:07:35,074 his first day in office, president Trump issued 182 00:07:35,074 --> 00:07:37,654 an executive order entitled unleashing 183 00:07:38,115 --> 00:07:39,175 American energy. 184 00:07:39,634 --> 00:07:42,514 Now this was one of a 24 185 00:07:42,514 --> 00:07:45,629 executive orders that he's issued as of today. 186 00:07:46,569 --> 00:07:49,069 But this EO, it did something really important. 187 00:07:49,209 --> 00:07:50,029 It repealed 188 00:07:50,889 --> 00:07:51,389 President 189 00:07:51,850 --> 00:07:55,709 Carter's nineteen seventy seven order authorizing 190 00:07:56,089 --> 00:07:57,629 CEQ to issue regulations. 191 00:07:58,490 --> 00:08:00,430 And it also directed CEQ 192 00:08:00,904 --> 00:08:01,564 to repeal 193 00:08:01,944 --> 00:08:04,665 the regulations that are currently in effect. So 194 00:08:04,665 --> 00:08:05,165 basically, 195 00:08:05,785 --> 00:08:09,004 he forced CEQ to repeal the regulations 196 00:08:09,305 --> 00:08:11,944 that have been guiding all four forty one 197 00:08:11,944 --> 00:08:13,004 federal agencies 198 00:08:13,865 --> 00:08:16,199 as they implement NEPA. Now I wouldn't go 199 00:08:16,199 --> 00:08:17,720 so far as to say it torp the 200 00:08:17,720 --> 00:08:20,040 rules of the game because NEPA as a 201 00:08:20,040 --> 00:08:21,660 statute still applies, 202 00:08:22,199 --> 00:08:25,020 but he injected this massive amount of uncertainty 203 00:08:25,160 --> 00:08:27,319 in federal decision making. And kind of the 204 00:08:27,319 --> 00:08:28,860 way I think about it is 205 00:08:29,214 --> 00:08:31,854 you can think of CEQ's NEPA regulations as 206 00:08:31,854 --> 00:08:34,014 something like a traffic signal at a very 207 00:08:34,014 --> 00:08:34,914 busy intersection. 208 00:08:35,615 --> 00:08:37,534 You can turn off the traffic lights to 209 00:08:37,534 --> 00:08:38,355 save electricity, 210 00:08:38,894 --> 00:08:41,294 but the traffic laws are still there. They 211 00:08:41,294 --> 00:08:43,589 still apply, and now everybody needs to treat 212 00:08:43,589 --> 00:08:45,929 that intersection as a four way stop. 213 00:08:46,389 --> 00:08:48,389 Yeah. We we save some money along the 214 00:08:48,389 --> 00:08:48,889 way, 215 00:08:49,509 --> 00:08:52,149 but at a significant cost in terms of 216 00:08:52,149 --> 00:08:53,610 efficiency and safety. 217 00:08:54,069 --> 00:08:55,990 So from where I sit, it's a it's 218 00:08:55,990 --> 00:08:57,289 not a good trade off. 219 00:08:57,615 --> 00:08:58,975 And and as a quick aside, you know, 220 00:08:58,975 --> 00:09:00,575 I said there have been a 24 221 00:09:00,575 --> 00:09:02,595 EOs so far from the Trump administration. 222 00:09:03,375 --> 00:09:04,754 To put that in context, 223 00:09:05,375 --> 00:09:07,695 in the whole four years of the Biden 224 00:09:07,695 --> 00:09:08,195 administration, 225 00:09:08,735 --> 00:09:11,235 we saw a 62. 226 00:09:11,855 --> 00:09:12,355 So 227 00:09:13,240 --> 00:09:14,379 in eighty days, 228 00:09:14,919 --> 00:09:16,299 we're seeing, you know, 229 00:09:16,759 --> 00:09:18,360 a push to catch up with what the 230 00:09:18,360 --> 00:09:20,379 Biden administration did in four years. 231 00:09:21,079 --> 00:09:22,059 Alright. So 232 00:09:23,000 --> 00:09:24,839 how did we get here? I mean, where 233 00:09:24,839 --> 00:09:26,924 where does this idea come from that 234 00:09:27,245 --> 00:09:30,144 CEQ wouldn't have the authority to issue 235 00:09:30,445 --> 00:09:32,605 NEPA regulations? I mean, this is something that, 236 00:09:32,605 --> 00:09:33,904 as you pointed out, was 237 00:09:34,205 --> 00:09:35,424 in effect through 238 00:09:36,125 --> 00:09:39,985 Carter, Reagan, Bush, Clinton, Bush, Obama, 239 00:09:41,084 --> 00:09:41,584 Trump, 240 00:09:42,330 --> 00:09:44,649 and Biden, and now all of a sudden, 241 00:09:44,649 --> 00:09:47,230 no, you know, forty seven years later, whoopsies? 242 00:09:48,410 --> 00:09:50,490 It it's a great question because for a 243 00:09:50,490 --> 00:09:52,910 very long time, people have been treating CEQ's 244 00:09:53,769 --> 00:09:54,269 regulations 245 00:09:54,809 --> 00:09:55,629 as binding. 246 00:09:56,574 --> 00:09:58,615 You know, there's a complicated legal path that 247 00:09:58,615 --> 00:10:01,575 involves litigation in both Washington DC and North 248 00:10:01,575 --> 00:10:03,914 Dakota, but I'll I'll save you all that. 249 00:10:04,615 --> 00:10:06,455 Basically, we had a court decision out of 250 00:10:06,455 --> 00:10:08,855 the federal district court in North Dakota in 251 00:10:08,855 --> 00:10:09,870 February of this year. 252 00:10:10,669 --> 00:10:12,529 And they reasoned that NEPA, 253 00:10:13,629 --> 00:10:16,669 as enacted by Congress and signed into law 254 00:10:16,669 --> 00:10:17,570 by the president, 255 00:10:18,509 --> 00:10:19,970 did not specifically 256 00:10:20,429 --> 00:10:20,929 authorize 257 00:10:21,309 --> 00:10:23,089 CEQ to issue regulations. 258 00:10:23,870 --> 00:10:25,649 And they went on to say, well, 259 00:10:26,345 --> 00:10:28,584 it's not clear to us. We don't or 260 00:10:28,584 --> 00:10:31,384 the court didn't believe that the president could 261 00:10:31,384 --> 00:10:32,204 then delegate 262 00:10:33,225 --> 00:10:35,964 authority to CEQ to issue these regulations. 263 00:10:37,144 --> 00:10:37,644 So 264 00:10:38,279 --> 00:10:40,699 the court then concluded that absent 265 00:10:41,000 --> 00:10:43,799 authority to issue the regulations in the first 266 00:10:43,799 --> 00:10:44,299 place, 267 00:10:45,639 --> 00:10:46,539 those regulations 268 00:10:47,000 --> 00:10:47,820 were without 269 00:10:48,199 --> 00:10:49,980 legal force and effect. 270 00:10:50,475 --> 00:10:52,714 Now I'm not sure that's the correct legal 271 00:10:52,714 --> 00:10:54,654 answer, but it's a binding 272 00:10:55,034 --> 00:10:55,934 court decision 273 00:10:56,554 --> 00:10:59,115 and the federal government did not appeal it. 274 00:10:59,115 --> 00:11:01,115 So that's the rule of the case as 275 00:11:01,115 --> 00:11:02,334 we sit here today. 276 00:11:02,794 --> 00:11:05,615 The North Dakota court then declared 277 00:11:06,659 --> 00:11:09,000 the twenty twenty four versions of the CEQ 278 00:11:09,139 --> 00:11:09,639 regulations 279 00:11:10,820 --> 00:11:11,320 invalid. 280 00:11:11,700 --> 00:11:13,559 So those are the most recent version. 281 00:11:14,339 --> 00:11:14,839 Interestingly 282 00:11:15,139 --> 00:11:17,220 enough, the court said, well, those are the 283 00:11:17,220 --> 00:11:18,679 only ones that are challenged, 284 00:11:19,139 --> 00:11:21,399 so we are going to leave in place 285 00:11:22,125 --> 00:11:22,625 the 286 00:11:23,004 --> 00:11:25,965 prior CEQ regulations. Even though they were issued 287 00:11:25,965 --> 00:11:28,865 under the same authority, on the same statutory 288 00:11:29,004 --> 00:11:30,384 base or legal basis, 289 00:11:30,845 --> 00:11:33,004 we're gonna leave those in place. And that 290 00:11:33,004 --> 00:11:35,264 created some confusion, obviously, understandably. 291 00:11:36,445 --> 00:11:36,945 Anyway, 292 00:11:37,480 --> 00:11:39,019 all of that was overshadowed, 293 00:11:40,600 --> 00:11:41,100 in 294 00:11:41,639 --> 00:11:45,340 later when president Trump issued his executive order, 295 00:11:46,279 --> 00:11:49,240 repealing CEQ's authority and directing them to repeal 296 00:11:49,240 --> 00:11:49,899 their regulations. 297 00:11:51,785 --> 00:11:52,904 So that's all, 298 00:11:53,625 --> 00:11:56,504 pretty abstract. Let's bring this down to public 299 00:11:56,504 --> 00:11:58,665 lands where the rubber meets the road, at 300 00:11:58,665 --> 00:12:00,764 least for where our listeners are concerned. 301 00:12:01,304 --> 00:12:04,024 Basically, everything that occurs on federal land, goes 302 00:12:04,024 --> 00:12:05,245 through the NEPA process. 303 00:12:05,589 --> 00:12:08,789 What will this change mean for how NEPA 304 00:12:08,789 --> 00:12:11,269 is applied by the BLM, for example, or 305 00:12:11,269 --> 00:12:14,250 the forest service, to, like, proposed logging, 306 00:12:14,870 --> 00:12:16,649 proposed drilling, things like that? 307 00:12:17,269 --> 00:12:19,029 That's a it's a really good question, and 308 00:12:19,029 --> 00:12:21,485 I think we're still working through that. I 309 00:12:21,485 --> 00:12:23,105 think first of all, 310 00:12:25,325 --> 00:12:28,524 the way CEQ's regulations were written, they provided 311 00:12:28,524 --> 00:12:29,264 the floor 312 00:12:29,644 --> 00:12:33,165 and they specifically said other agencies, you can 313 00:12:33,165 --> 00:12:34,305 supplement these, 314 00:12:34,685 --> 00:12:35,504 but don't 315 00:12:36,350 --> 00:12:39,490 don't be redundant. Don't just copy and paste. 316 00:12:39,709 --> 00:12:40,690 Add to it. 317 00:12:41,309 --> 00:12:44,110 So all of those other agencies, some of 318 00:12:44,110 --> 00:12:46,289 them, I think there's something like 86 319 00:12:46,350 --> 00:12:48,850 that have issued their own regulations thus far. 320 00:12:49,424 --> 00:12:52,085 They're gonna have something to fall back on. 321 00:12:52,705 --> 00:12:55,345 Whether it's gonna have as much detail in 322 00:12:55,345 --> 00:12:57,845 it as the prior CEQ regulations, 323 00:12:58,384 --> 00:13:00,804 we'll have to see. Whether those regulations, 324 00:13:01,569 --> 00:13:03,970 you know, that are in place from the 325 00:13:03,970 --> 00:13:05,970 BLM and the Forest Service and the Corps 326 00:13:05,970 --> 00:13:08,209 of Engineers and everybody else are consistent, that's 327 00:13:08,209 --> 00:13:09,509 gonna be another question. 328 00:13:09,970 --> 00:13:11,829 The extent to which they incorporate 329 00:13:12,289 --> 00:13:14,549 CEQ's prior rules by reference 330 00:13:15,284 --> 00:13:17,924 and in doing so, make them part of 331 00:13:17,924 --> 00:13:20,884 their their own regulations and and allow them 332 00:13:20,884 --> 00:13:23,524 to live on past this repeal, we're gonna 333 00:13:23,524 --> 00:13:25,464 have to figure that out as well. 334 00:13:26,164 --> 00:13:28,485 So all of those things create confusion. They 335 00:13:28,485 --> 00:13:29,304 create uncertainty 336 00:13:29,764 --> 00:13:30,264 for 337 00:13:30,610 --> 00:13:33,269 the agency. So to take your example, 338 00:13:33,649 --> 00:13:35,809 if you have an oil and gas company 339 00:13:35,809 --> 00:13:37,830 that's trying to get permits to drill 340 00:13:38,210 --> 00:13:41,190 on, you know, Forest Service or BLM land, 341 00:13:41,730 --> 00:13:43,169 they're still gonna have to go through the 342 00:13:43,169 --> 00:13:46,514 NEPA process, but the rules are less certain. 343 00:13:47,134 --> 00:13:49,714 The potential to have a conflict between, 344 00:13:50,815 --> 00:13:52,034 between agencies 345 00:13:52,654 --> 00:13:53,154 increases. 346 00:13:54,014 --> 00:13:56,735 The time I think agencies are gonna spend 347 00:13:56,735 --> 00:13:58,735 on this process will increase because they're gonna 348 00:13:58,735 --> 00:14:00,659 have to try and figure out how to 349 00:14:00,659 --> 00:14:03,799 move forward in this atmosphere of increased uncertainty. 350 00:14:04,740 --> 00:14:06,200 There's a risk that 351 00:14:06,899 --> 00:14:09,320 a risk from the perspective of that permit 352 00:14:09,460 --> 00:14:09,960 applicant 353 00:14:10,740 --> 00:14:11,240 that 354 00:14:12,019 --> 00:14:14,845 the public may be more likely to sue 355 00:14:14,845 --> 00:14:17,485 and challenge it because, again, we have questions 356 00:14:17,485 --> 00:14:19,884 of what the rules truly are, what they 357 00:14:19,884 --> 00:14:21,745 require, what rules apply. 358 00:14:22,125 --> 00:14:24,365 So all of those things, I think, are 359 00:14:24,365 --> 00:14:25,164 bad. And I 360 00:14:25,804 --> 00:14:26,625 bad for 361 00:14:27,250 --> 00:14:29,809 the agency that's trying to navigate this process, 362 00:14:29,809 --> 00:14:31,410 and they're trying to do it now at 363 00:14:31,410 --> 00:14:33,430 a time with fewer staff, 364 00:14:33,970 --> 00:14:37,170 fewer resources. So we made their job much, 365 00:14:37,170 --> 00:14:38,309 much more difficult. 366 00:14:38,610 --> 00:14:41,009 It's gonna be bad for industry or the 367 00:14:41,170 --> 00:14:43,475 I should say, applicants. So this could be, 368 00:14:43,615 --> 00:14:45,475 you know, our oil and gas company. 369 00:14:46,014 --> 00:14:49,455 Maybe it is a a transmission company that's 370 00:14:49,455 --> 00:14:50,434 trying to get, 371 00:14:50,894 --> 00:14:52,115 an electric line, 372 00:14:52,735 --> 00:14:55,695 crossing over forest service and BLM lands to 373 00:14:55,695 --> 00:14:56,195 bring 374 00:14:56,500 --> 00:14:59,220 energy to a a local community. Maybe it's, 375 00:14:59,540 --> 00:15:01,779 a community that's trying to update or trying 376 00:15:01,779 --> 00:15:04,259 to replace a water line that crosses federal 377 00:15:04,259 --> 00:15:06,740 land. This is going to impact a lot 378 00:15:06,740 --> 00:15:09,000 of people in ways that I think, 379 00:15:09,944 --> 00:15:12,504 really aren't good if we're thinking in terms 380 00:15:12,504 --> 00:15:13,404 of efficiency, 381 00:15:14,424 --> 00:15:17,485 if we're thinking in terms of environmental stewardship, 382 00:15:17,544 --> 00:15:19,625 or we're thinking about just getting a a 383 00:15:19,625 --> 00:15:20,845 faster, better decision. 384 00:15:21,440 --> 00:15:23,759 Alright. So the short version of this is 385 00:15:23,759 --> 00:15:24,820 this is DOGE 386 00:15:25,440 --> 00:15:26,500 creating chaos, 387 00:15:27,440 --> 00:15:29,620 or the Trump administration creating chaos. 388 00:15:30,959 --> 00:15:32,879 Take us then up to the 30,000 foot 389 00:15:32,879 --> 00:15:34,159 level. At at the end of the last 390 00:15:34,159 --> 00:15:36,820 congress, we heard some serious talk of 391 00:15:37,285 --> 00:15:40,404 NEPA and permitting reform, and maybe there is 392 00:15:40,404 --> 00:15:42,165 gonna be something that got passed on a 393 00:15:42,165 --> 00:15:44,904 bipartisan basis during lame duck. 394 00:15:45,445 --> 00:15:46,665 Do you think this changes 395 00:15:47,605 --> 00:15:50,585 the the dynamic in Washington and the possibility 396 00:15:50,725 --> 00:15:51,465 that congress 397 00:15:51,870 --> 00:15:54,110 might decide to step in if the White 398 00:15:54,110 --> 00:15:55,330 House is just creating 399 00:15:55,870 --> 00:15:58,049 uncertainty and chaos for the industries 400 00:15:58,590 --> 00:16:01,549 that president Trump keeps keeps claiming he's trying 401 00:16:01,549 --> 00:16:02,370 to help promote? 402 00:16:03,389 --> 00:16:04,850 I think that's one possibility. 403 00:16:05,149 --> 00:16:08,424 I think the short, easy answer here is 404 00:16:08,424 --> 00:16:08,924 that 405 00:16:09,704 --> 00:16:12,985 I think the president had authority to president 406 00:16:12,985 --> 00:16:15,544 Carter had the authority back in 1977 407 00:16:15,544 --> 00:16:17,725 to direct CEQ to issue regulations. 408 00:16:18,264 --> 00:16:19,004 I think, 409 00:16:19,750 --> 00:16:22,070 President Trump has that authority again today. He 410 00:16:22,070 --> 00:16:24,470 can withdraw his order. He can allow CEQ 411 00:16:24,470 --> 00:16:26,329 to promulgate rules. We can 412 00:16:26,709 --> 00:16:27,209 recreate 413 00:16:27,829 --> 00:16:31,029 that common floor. That's the fastest and easiest 414 00:16:31,029 --> 00:16:31,725 way forward. 415 00:16:32,204 --> 00:16:34,204 I think Congress could step in here and 416 00:16:34,204 --> 00:16:36,924 provide some very useful guidance. They could say, 417 00:16:36,924 --> 00:16:37,824 look, CEQ, 418 00:16:38,365 --> 00:16:40,605 you have the authority to issue regulations. In 419 00:16:40,605 --> 00:16:42,704 fact, we're going to recognize the ones, 420 00:16:43,164 --> 00:16:45,179 that you already had in place as of 421 00:16:45,179 --> 00:16:46,620 you know, 2024. 422 00:16:46,620 --> 00:16:48,379 We're going to take that as a starting 423 00:16:48,379 --> 00:16:51,100 point. And if if the administration or others 424 00:16:51,100 --> 00:16:53,580 wanna go back and revise those to make 425 00:16:53,580 --> 00:16:56,220 them better reflect their policy priorities, fine. But 426 00:16:56,220 --> 00:16:57,440 at least we can create, 427 00:16:58,214 --> 00:17:00,294 a shared floor. And I think in some 428 00:17:00,294 --> 00:17:02,375 ways, the irony here is if we go 429 00:17:02,375 --> 00:17:04,055 back and we look at what Congress has 430 00:17:04,055 --> 00:17:05,115 been trying to do, 431 00:17:05,575 --> 00:17:07,654 in terms of NEPA and permitting writ large 432 00:17:07,654 --> 00:17:09,275 over the last couple of decades, 433 00:17:09,750 --> 00:17:11,369 it's been largely focused 434 00:17:11,910 --> 00:17:12,730 on efficiency. 435 00:17:13,029 --> 00:17:14,329 I think there's been a recognition 436 00:17:14,630 --> 00:17:17,349 that we can make permitting, particularly around public 437 00:17:17,349 --> 00:17:17,849 lands, 438 00:17:18,150 --> 00:17:20,869 work better. And by better, I mean, we 439 00:17:20,869 --> 00:17:23,775 can make it faster, more efficient, less expensive, 440 00:17:23,775 --> 00:17:24,515 more predictable 441 00:17:26,414 --> 00:17:28,975 without undermining protections for the quality of the 442 00:17:28,975 --> 00:17:31,295 air we breathe, the water we drink. We 443 00:17:31,295 --> 00:17:34,035 can also make the process work better without 444 00:17:34,894 --> 00:17:35,394 disenfranchising 445 00:17:36,335 --> 00:17:36,835 communities 446 00:17:37,359 --> 00:17:40,319 that are impacted by these decisions and ensuring 447 00:17:40,319 --> 00:17:42,980 that the decisions are made in a clear, 448 00:17:43,119 --> 00:17:45,599 transparent way. So I think there's room to 449 00:17:45,599 --> 00:17:47,599 do better, and that's what congress has been 450 00:17:47,599 --> 00:17:49,359 trying to do over the last at least 451 00:17:49,359 --> 00:17:49,859 decade. 452 00:17:50,234 --> 00:17:51,835 You know, we had, you know, not to 453 00:17:51,835 --> 00:17:53,755 get too far into nerdy, dumb hair, but 454 00:17:53,755 --> 00:17:56,095 we have something called Fast 41, 455 00:17:56,474 --> 00:17:59,275 which is named after title one of Fixing 456 00:17:59,275 --> 00:18:02,670 America's Surface Transportation Act. It was basically this 457 00:18:03,470 --> 00:18:05,710 this pilot project that said we're going to 458 00:18:05,710 --> 00:18:09,390 take the biggest, most difficult, most thorny projects 459 00:18:09,390 --> 00:18:11,090 that require federal authorization. 460 00:18:11,789 --> 00:18:14,269 You know, they need to be $200,000,000 461 00:18:14,269 --> 00:18:15,170 or bigger. 462 00:18:15,474 --> 00:18:17,394 And we're going to move those onto a 463 00:18:17,394 --> 00:18:17,894 dashboard 464 00:18:18,194 --> 00:18:20,134 to make sure that all of the agencies 465 00:18:20,194 --> 00:18:22,674 that are involved, whether it's the EPA, the 466 00:18:22,674 --> 00:18:26,134 Federal Energy Regulatory Commission, Department of Energy, whoever 467 00:18:26,274 --> 00:18:29,234 it is, that they're all working together. They're 468 00:18:29,234 --> 00:18:29,734 coordinating 469 00:18:30,319 --> 00:18:31,220 and we're moving 470 00:18:32,079 --> 00:18:32,579 concurrently 471 00:18:33,200 --> 00:18:34,500 rather than sequentially. 472 00:18:35,759 --> 00:18:38,900 It was a huge win. It's carving years 473 00:18:38,960 --> 00:18:40,019 off of the permitting 474 00:18:40,960 --> 00:18:41,460 process. 475 00:18:44,054 --> 00:18:47,595 But that's not what the executive order does. 476 00:18:47,654 --> 00:18:49,115 It now fragments 477 00:18:49,974 --> 00:18:50,794 at a time 478 00:18:51,095 --> 00:18:54,054 when we have been trying to coordinate and 479 00:18:54,054 --> 00:18:57,130 make things more efficient to make sure that 480 00:18:57,130 --> 00:18:59,529 if you think about the wildlife analysis that 481 00:18:59,529 --> 00:19:01,470 has to be done for a large project, 482 00:19:02,009 --> 00:19:03,210 you know, we want to make sure that 483 00:19:03,210 --> 00:19:05,529 the Forest Services needs are met, that the 484 00:19:05,529 --> 00:19:07,929 Fish and Wildlife Services needs are met, that 485 00:19:07,929 --> 00:19:09,549 the state wildlife managers, 486 00:19:10,154 --> 00:19:13,035 that their need, their analytical needs, whatever they 487 00:19:13,035 --> 00:19:15,035 need in order to support their permitting decision, 488 00:19:15,035 --> 00:19:17,295 that's all done at once. We don't need 489 00:19:17,355 --> 00:19:18,335 three separate 490 00:19:19,515 --> 00:19:20,015 analyses, 491 00:19:20,315 --> 00:19:22,795 three separate sets of studies that go to 492 00:19:22,795 --> 00:19:25,299 essentially the same question. That's just a bad 493 00:19:25,299 --> 00:19:26,600 use of time and resources. 494 00:19:27,299 --> 00:19:29,160 So let me make sure I've got this 495 00:19:29,220 --> 00:19:32,420 straight. Does Fast 41 go away now? Was 496 00:19:32,420 --> 00:19:33,400 that a CEQ 497 00:19:34,180 --> 00:19:34,680 creation? 498 00:19:35,539 --> 00:19:36,359 Like, does 499 00:19:36,900 --> 00:19:37,960 is this basically 500 00:19:38,375 --> 00:19:41,515 a step in the opposite direction of efficiency 501 00:19:41,575 --> 00:19:42,315 and collaboration? 502 00:19:43,734 --> 00:19:45,575 No. I didn't mean to imply that. That 503 00:19:45,575 --> 00:19:47,515 that was I was unclear. 504 00:19:47,975 --> 00:19:49,734 FAST 41 is still in place, but I 505 00:19:49,734 --> 00:19:51,654 think it's an example of the kind of 506 00:19:51,654 --> 00:19:53,654 reforms that we were already seeing to make 507 00:19:53,654 --> 00:19:54,570 the permitting 508 00:19:55,109 --> 00:19:57,289 process more effective, more efficient 509 00:19:57,590 --> 00:19:58,090 without 510 00:19:58,869 --> 00:20:01,910 undermining our environmental protection. So I think but 511 00:20:01,910 --> 00:20:04,070 I mean, maybe to your point, though, FAST 512 00:20:04,070 --> 00:20:05,130 41 compliance 513 00:20:06,404 --> 00:20:09,525 now does become more difficult because you're going 514 00:20:09,525 --> 00:20:12,325 through the NEPA process as part of FAST 515 00:20:12,325 --> 00:20:13,225 41. 516 00:20:14,005 --> 00:20:14,505 And 517 00:20:15,285 --> 00:20:17,205 the rules now are less clear. I think 518 00:20:17,205 --> 00:20:18,585 that's gonna cause a problem. 519 00:20:19,059 --> 00:20:21,539 So you, along with a bunch of other 520 00:20:21,539 --> 00:20:24,019 law professors, filed a comment to the federal 521 00:20:24,019 --> 00:20:25,799 government arguing that this 522 00:20:26,259 --> 00:20:27,480 rescission of, 523 00:20:27,859 --> 00:20:31,160 the CEQ authority will create issues for permitting, 524 00:20:31,220 --> 00:20:33,535 which you sort of just talked about. Another 525 00:20:33,535 --> 00:20:36,195 group of law professors filed a comment objecting 526 00:20:36,494 --> 00:20:40,195 to CEQ issue issuing this interim final rule 527 00:20:40,335 --> 00:20:42,414 change instead of going through a notice and 528 00:20:42,414 --> 00:20:45,295 comment process. Can you explain the importance of 529 00:20:45,295 --> 00:20:47,555 that? Why is it why would that 530 00:20:48,015 --> 00:20:49,920 be a better way to do this? 531 00:20:50,779 --> 00:20:51,259 Wow. 532 00:20:51,820 --> 00:20:53,440 You guys really did your homework. 533 00:20:53,900 --> 00:20:55,420 This is this is kind of a deep 534 00:20:55,420 --> 00:20:55,920 dive. 535 00:20:57,660 --> 00:20:59,279 Yes. There are two letters. 536 00:21:00,299 --> 00:21:02,299 The one I signed on to, I think 537 00:21:02,299 --> 00:21:05,394 there were 28 law professors that expressed concerns 538 00:21:05,394 --> 00:21:07,335 about the IFR. There's a separate, 539 00:21:08,434 --> 00:21:10,434 separate letter that was written by another group 540 00:21:10,434 --> 00:21:11,894 of environmental law professors. 541 00:21:12,755 --> 00:21:13,255 And 542 00:21:13,795 --> 00:21:15,634 kind of to understand the difference here, we 543 00:21:15,634 --> 00:21:17,394 have to talk a little bit about federal 544 00:21:17,394 --> 00:21:17,894 rulemaking. 545 00:21:18,549 --> 00:21:21,210 Rulemaking is governed by something called the Administrative 546 00:21:21,430 --> 00:21:23,369 Procedures Act or the APA. 547 00:21:23,990 --> 00:21:26,230 And most of the time you have a 548 00:21:26,230 --> 00:21:26,730 situation 549 00:21:27,029 --> 00:21:28,009 where Congress 550 00:21:28,549 --> 00:21:29,769 says to an agency, 551 00:21:30,309 --> 00:21:32,570 we want you to go out and issue 552 00:21:32,789 --> 00:21:34,525 a rule or a regulation of the same. 553 00:21:35,484 --> 00:21:37,404 And that rule kind of fills in the 554 00:21:37,404 --> 00:21:38,865 blanks, provides details 555 00:21:39,484 --> 00:21:40,365 around a particular 556 00:21:40,924 --> 00:21:43,484 how to implement a particular law. And most 557 00:21:43,484 --> 00:21:45,484 of that rule making goes through what's called 558 00:21:45,484 --> 00:21:47,424 a notice and comment process 559 00:21:47,789 --> 00:21:50,190 where the public is told about the proposed 560 00:21:50,190 --> 00:21:51,809 rule. They're given a chance, 561 00:21:52,509 --> 00:21:54,930 to read it, an opportunity to comment. 562 00:21:55,390 --> 00:21:58,529 The agencies then have to read those comments, 563 00:21:58,590 --> 00:21:59,650 consider them, 564 00:22:00,244 --> 00:22:03,205 respond to them, and change the draft rule 565 00:22:03,205 --> 00:22:04,025 as necessary 566 00:22:04,485 --> 00:22:06,644 all before they can issue a final rule. 567 00:22:06,644 --> 00:22:09,445 So the idea is that, again, we're we're 568 00:22:09,445 --> 00:22:11,225 going through a transparent process 569 00:22:11,845 --> 00:22:13,065 that is predictable. 570 00:22:14,289 --> 00:22:17,250 What happens and now there's an exception to 571 00:22:17,250 --> 00:22:20,309 that normal APA process, the notice and comment 572 00:22:20,369 --> 00:22:20,869 process, 573 00:22:21,330 --> 00:22:24,930 that allows agencies to forego notice and comment 574 00:22:24,930 --> 00:22:27,304 if they can show what's called good 575 00:22:27,605 --> 00:22:30,085 cause. And under the APA, there are three 576 00:22:30,085 --> 00:22:32,184 reasons for the good cause exemption. 577 00:22:32,884 --> 00:22:35,464 One is that the rulemaking would be impracticable. 578 00:22:36,484 --> 00:22:38,105 One is that it would be unnecessary. 579 00:22:38,929 --> 00:22:41,089 And the third is that rulemaking, you know, 580 00:22:41,089 --> 00:22:43,490 that that process would be contrary to the 581 00:22:43,490 --> 00:22:44,470 public interest. 582 00:22:45,169 --> 00:22:49,349 And here, the interim final rule repealing CEQ's 583 00:22:49,569 --> 00:22:50,069 regulations, 584 00:22:51,105 --> 00:22:54,724 it relies on that good cause exemption. 585 00:22:56,944 --> 00:22:57,444 The 586 00:22:57,744 --> 00:23:01,744 other letter goes into great detail about that 587 00:23:01,744 --> 00:23:04,565 exemption and explaining why public comments 588 00:23:05,359 --> 00:23:06,740 were not impracticable. 589 00:23:07,200 --> 00:23:08,980 There was nothing that made it impossible. 590 00:23:09,519 --> 00:23:10,580 They weren't unnecessary 591 00:23:11,279 --> 00:23:13,759 and they certainly weren't contrary to the public 592 00:23:13,759 --> 00:23:14,259 interest. 593 00:23:14,799 --> 00:23:16,400 And if that letter is correct, and I 594 00:23:16,400 --> 00:23:18,480 think they make a very, very strong legal 595 00:23:18,480 --> 00:23:18,980 argument, 596 00:23:19,664 --> 00:23:23,125 then CEQ would need to go back, reissue 597 00:23:23,184 --> 00:23:26,164 their repeal rule in a draft form 598 00:23:27,025 --> 00:23:29,765 and then follow the notice and comment process. 599 00:23:30,225 --> 00:23:30,725 Otherwise, 600 00:23:31,440 --> 00:23:34,559 those valid CEQ regulation, to the extent they're 601 00:23:34,559 --> 00:23:36,579 valid following a North Dakota decision, 602 00:23:37,119 --> 00:23:38,659 would remain in place 603 00:23:39,119 --> 00:23:39,619 until 604 00:23:40,159 --> 00:23:41,299 that rule making 605 00:23:41,599 --> 00:23:44,339 process is concluded. So that's kind of messy. 606 00:23:45,794 --> 00:23:48,115 And the bottom line is we had you 607 00:23:48,115 --> 00:23:51,174 had two groups of law professors debating about 608 00:23:51,394 --> 00:23:52,694 what was the 609 00:23:53,554 --> 00:23:54,454 how to proceed. 610 00:23:55,075 --> 00:23:55,575 And 611 00:23:56,194 --> 00:23:58,855 we chose to focus on the president's authority 612 00:23:58,994 --> 00:23:59,494 to 613 00:23:59,839 --> 00:24:02,480 authorize CEQ to issue rules, to focus on 614 00:24:02,480 --> 00:24:05,279 the consequences of the repeal, and to focus 615 00:24:05,279 --> 00:24:08,900 on why the interim final rule is inconsistent 616 00:24:08,960 --> 00:24:11,700 with these broader efforts to make permitting efficient. 617 00:24:11,954 --> 00:24:13,714 You know, it's just a it's a the 618 00:24:13,714 --> 00:24:16,515 difference of approach reflects where we chose to 619 00:24:16,515 --> 00:24:18,615 focus our limited time and resources, 620 00:24:19,075 --> 00:24:20,214 and it doesn't necessarily 621 00:24:20,755 --> 00:24:21,815 reflect a disagreement 622 00:24:22,115 --> 00:24:24,835 about the law. Many law professors signed both 623 00:24:24,835 --> 00:24:25,335 letters. 624 00:24:27,179 --> 00:24:29,019 Alright. I'm glad we started talking about the 625 00:24:29,019 --> 00:24:31,740 Administrative Procedures Act because, boy, we're about to 626 00:24:31,740 --> 00:24:34,319 get wonky with what happened this week. 627 00:24:35,099 --> 00:24:37,759 We're taping this on Thursday. Late Wednesday, 628 00:24:38,545 --> 00:24:41,605 president Trump signed yet another executive order. 629 00:24:42,144 --> 00:24:42,644 It's 630 00:24:43,585 --> 00:24:44,085 confusingly 631 00:24:44,384 --> 00:24:47,105 written. It's kinda all over the place. Everyone 632 00:24:47,105 --> 00:24:50,224 seems to not be entirely sure even what 633 00:24:50,224 --> 00:24:52,625 this will mean because it is so far 634 00:24:52,625 --> 00:24:53,365 out there. 635 00:24:53,899 --> 00:24:56,380 The very short version is that it appears 636 00:24:56,380 --> 00:24:57,679 that he is trying 637 00:24:58,380 --> 00:24:59,359 to make 638 00:25:00,460 --> 00:25:03,579 a whole bunch of agencies, including interior and 639 00:25:03,579 --> 00:25:04,079 EPA, 640 00:25:04,859 --> 00:25:08,559 add a one year sunset clause to essentially 641 00:25:09,355 --> 00:25:10,335 every existing 642 00:25:10,714 --> 00:25:11,934 environmental regulation, 643 00:25:13,115 --> 00:25:13,855 on everything 644 00:25:14,315 --> 00:25:15,434 from the, 645 00:25:16,154 --> 00:25:18,875 the Endangered Species Act, to Migratory Bird Treaty 646 00:25:18,875 --> 00:25:20,714 Act, the 1872 647 00:25:20,714 --> 00:25:23,054 Mining Law. It is a very long list 648 00:25:23,359 --> 00:25:25,920 just as far as interior is concerned, and 649 00:25:25,920 --> 00:25:27,920 it looks like they're trying to make every 650 00:25:27,920 --> 00:25:29,059 environmental regulation 651 00:25:29,759 --> 00:25:31,940 expire in the next year 652 00:25:32,320 --> 00:25:33,140 or so. 653 00:25:34,320 --> 00:25:36,580 How out there is this idea? 654 00:25:36,904 --> 00:25:39,304 Are there any examples of this kind of 655 00:25:39,304 --> 00:25:42,744 sunset thing happening even on a temporary basis, 656 00:25:42,744 --> 00:25:46,044 much less across every rule coming out of 657 00:25:46,105 --> 00:25:47,484 entire government agencies? 658 00:25:50,119 --> 00:25:52,759 Aaron, where to where to begin on this 659 00:25:52,759 --> 00:25:54,679 order? I mean, I guess, first, I wanna 660 00:25:54,679 --> 00:25:56,759 go back and say, again, this is the 661 00:25:56,759 --> 00:25:59,559 hundred and twenty fourth executive order we've seen 662 00:25:59,559 --> 00:26:02,679 in eighty one days or something. We're breathing 663 00:26:02,679 --> 00:26:03,899 from the fire hose 664 00:26:04,424 --> 00:26:04,924 and 665 00:26:05,224 --> 00:26:07,544 still trying to make sense of not just 666 00:26:07,544 --> 00:26:09,085 these individual orders, 667 00:26:09,544 --> 00:26:11,325 but how they fit together, 668 00:26:11,944 --> 00:26:14,365 how they fit under our constitution, 669 00:26:15,304 --> 00:26:17,304 how they fit under the laws we have 670 00:26:17,304 --> 00:26:20,149 in place. So this is a huge project. 671 00:26:20,369 --> 00:26:20,869 And 672 00:26:21,569 --> 00:26:23,329 as you say, we're still trying to make 673 00:26:23,329 --> 00:26:24,390 sense of what 674 00:26:25,649 --> 00:26:26,869 what is a really 675 00:26:28,049 --> 00:26:28,549 radical 676 00:26:28,849 --> 00:26:29,349 order. 677 00:26:31,664 --> 00:26:34,725 Yes. There are examples of laws that include 678 00:26:34,785 --> 00:26:38,644 sunset provisions or regulations that include sunset provisions. 679 00:26:38,705 --> 00:26:39,525 You know, after 680 00:26:39,904 --> 00:26:41,985 a period of time, maybe three, five years, 681 00:26:41,985 --> 00:26:44,085 you know, something goes away. 682 00:26:45,664 --> 00:26:46,404 I am 683 00:26:47,549 --> 00:26:48,929 I can't see 684 00:26:49,230 --> 00:26:50,369 how a president 685 00:26:50,750 --> 00:26:51,809 through an executive 686 00:26:52,349 --> 00:26:52,849 order 687 00:26:54,190 --> 00:26:54,690 could 688 00:26:54,990 --> 00:26:55,490 modify 689 00:26:56,750 --> 00:26:58,450 multiple existing regulations 690 00:26:58,909 --> 00:26:59,730 to insert 691 00:27:00,445 --> 00:27:02,924 a sunset provision into those existing rules. That 692 00:27:02,924 --> 00:27:06,384 just doesn't work. The Administrative Procedures Act requires 693 00:27:06,445 --> 00:27:07,265 a process. 694 00:27:07,805 --> 00:27:08,545 It requires 695 00:27:09,085 --> 00:27:09,585 transparency 696 00:27:09,965 --> 00:27:12,365 and engagement. I can't see how you would 697 00:27:12,365 --> 00:27:14,705 be able to avoid notice and comment rulemaking 698 00:27:15,670 --> 00:27:18,330 on these, and that's going to take time. 699 00:27:20,390 --> 00:27:22,789 And in doing that, the agencies are going 700 00:27:22,789 --> 00:27:23,930 to have to explain 701 00:27:24,630 --> 00:27:26,710 why they're making these changes. In here, that's 702 00:27:26,710 --> 00:27:28,710 gonna be clear because the president told them 703 00:27:28,710 --> 00:27:30,744 to. But Is that enough under the law? 704 00:27:30,744 --> 00:27:32,445 Right. Is that a justification? 705 00:27:33,384 --> 00:27:34,285 We'll see. 706 00:27:36,505 --> 00:27:38,525 And this is a really confusing 707 00:27:38,904 --> 00:27:40,845 order. It talks about, 708 00:27:42,184 --> 00:27:42,845 the the purpose 709 00:27:43,720 --> 00:27:45,900 of the order applying to 710 00:27:46,320 --> 00:27:46,820 regulations 711 00:27:47,240 --> 00:27:48,779 governing energy production, 712 00:27:49,160 --> 00:27:50,940 but it doesn't define that. 713 00:27:51,480 --> 00:27:52,539 What does governing 714 00:27:52,840 --> 00:27:55,880 energy production mean? Are we talking about mining 715 00:27:55,880 --> 00:27:58,279 for uranium that may or may not be 716 00:27:58,279 --> 00:27:58,755 used 717 00:27:59,154 --> 00:28:00,454 for power generation? 718 00:28:00,835 --> 00:28:02,694 Are we talking about, 719 00:28:04,275 --> 00:28:06,295 you know, power plant operation? 720 00:28:06,674 --> 00:28:08,835 What what is this? What does it mean? 721 00:28:08,835 --> 00:28:11,654 I think those are all really, really difficult 722 00:28:11,875 --> 00:28:12,375 questions. 723 00:28:14,000 --> 00:28:15,680 And then if you read further into the 724 00:28:15,680 --> 00:28:18,799 order, it talks section five c exempts what 725 00:28:18,799 --> 00:28:19,539 they call 726 00:28:20,000 --> 00:28:20,500 regulatory 727 00:28:21,279 --> 00:28:22,340 permitting regimes 728 00:28:22,880 --> 00:28:23,380 authorized 729 00:28:23,759 --> 00:28:24,580 by statute. 730 00:28:25,119 --> 00:28:27,460 I don't know what that means. My colleagues 731 00:28:27,519 --> 00:28:28,980 don't know what that means. 732 00:28:29,994 --> 00:28:33,194 And it seems like just about everything they're 733 00:28:33,194 --> 00:28:35,855 talking about here in the context of 734 00:28:36,554 --> 00:28:38,335 rulemaking and sunset provisions 735 00:28:39,194 --> 00:28:40,095 is a regulatory 736 00:28:40,474 --> 00:28:40,974 permitting 737 00:28:41,779 --> 00:28:42,279 regime. 738 00:28:43,380 --> 00:28:44,980 So we're still trying to figure this one 739 00:28:44,980 --> 00:28:47,940 out. It may contradict itself. No one knows 740 00:28:47,940 --> 00:28:48,839 anything because 741 00:28:49,460 --> 00:28:51,700 these are is it fair to say not 742 00:28:51,700 --> 00:28:52,200 the 743 00:28:52,899 --> 00:28:55,940 best and brightest in terms of regulatory lawyers 744 00:28:55,940 --> 00:28:58,214 who are drafting these things to begin with? 745 00:28:58,515 --> 00:28:59,575 I wouldn't go there. 746 00:29:00,595 --> 00:29:03,255 There are some very, very bright attorneys 747 00:29:03,954 --> 00:29:05,494 working in the federal government. 748 00:29:06,115 --> 00:29:09,089 The attorneys in the Department of Justice, the 749 00:29:09,409 --> 00:29:11,750 attorney this the career attorneys 750 00:29:12,130 --> 00:29:12,630 in 751 00:29:13,009 --> 00:29:15,089 the office of White House counsel, those are 752 00:29:15,089 --> 00:29:17,190 the best of the best. Their career attorneys 753 00:29:17,250 --> 00:29:18,390 are really good. 754 00:29:19,890 --> 00:29:22,309 I wonder personally, and this is, you know, 755 00:29:22,529 --> 00:29:25,055 a personal question, is who is in the 756 00:29:25,055 --> 00:29:27,295 room who is working on some of these 757 00:29:27,295 --> 00:29:27,795 orders? 758 00:29:28,894 --> 00:29:31,315 Are those career folks that have 759 00:29:31,934 --> 00:29:35,234 that have experience, that have expertise, that understand 760 00:29:35,375 --> 00:29:38,549 how the regulatory and permitting system works, Are 761 00:29:38,549 --> 00:29:41,370 they in the room? Are they fully engaged? 762 00:29:41,509 --> 00:29:44,170 Is their input being being considered? 763 00:29:45,190 --> 00:29:45,690 But 764 00:29:46,070 --> 00:29:48,090 that's an open question. I wouldn't 765 00:29:48,789 --> 00:29:48,950 I 766 00:29:50,150 --> 00:29:52,490 they're very, very smart people, 767 00:29:53,154 --> 00:29:53,654 available 768 00:29:54,835 --> 00:29:56,914 and I'm sure there's some very, very smart 769 00:29:56,914 --> 00:29:59,394 people working on these orders and they may 770 00:29:59,394 --> 00:30:02,035 be thinking about them in ways that, that 771 00:30:02,035 --> 00:30:04,115 I am not in terms of slightly different 772 00:30:04,115 --> 00:30:04,615 objectives 773 00:30:04,914 --> 00:30:05,414 or 774 00:30:06,049 --> 00:30:08,849 you know, how they will all come together 775 00:30:08,849 --> 00:30:09,990 at some later date. 776 00:30:10,769 --> 00:30:13,349 So since we're talking big picture about 777 00:30:13,730 --> 00:30:15,589 all of these executive orders, 778 00:30:17,009 --> 00:30:19,009 I'm curious. Do you do you see this 779 00:30:19,009 --> 00:30:20,470 all as part of a 780 00:30:20,825 --> 00:30:23,625 concerted effort to roll back regulation across the 781 00:30:23,625 --> 00:30:24,525 federal government? 782 00:30:26,105 --> 00:30:27,484 And if so, 783 00:30:28,265 --> 00:30:30,184 do you think how far do you think 784 00:30:30,184 --> 00:30:32,025 they'll get? I mean, I feel like when 785 00:30:32,025 --> 00:30:34,519 we talk about these EOs where it's always 786 00:30:34,519 --> 00:30:36,680 like, oh, well, we've got the backstop of 787 00:30:36,680 --> 00:30:38,839 the court. Someone will sue. It won't actually 788 00:30:38,839 --> 00:30:40,920 go into place. It's actually a press a 789 00:30:40,920 --> 00:30:43,880 glorified press release more than anything. Like, these 790 00:30:43,880 --> 00:30:46,759 EOs oftentimes don't they're not legally binding. They 791 00:30:46,759 --> 00:30:49,054 don't change the law. But how 792 00:30:49,914 --> 00:30:51,835 you know, just given what we've seen over 793 00:30:51,835 --> 00:30:53,835 the past month and a half or two 794 00:30:53,835 --> 00:30:54,335 months, 795 00:30:55,115 --> 00:30:57,034 how far do you think they'll get in 796 00:30:57,034 --> 00:30:58,095 terms of deregulating, 797 00:30:59,595 --> 00:31:01,934 you know, across the federal government, especially 798 00:31:02,234 --> 00:31:03,869 as it relates to public lands? 799 00:31:05,150 --> 00:31:06,529 It's a great question. 800 00:31:06,910 --> 00:31:07,410 And, 801 00:31:09,390 --> 00:31:11,170 it was actually before we 802 00:31:11,710 --> 00:31:13,089 we got on this call, 803 00:31:13,630 --> 00:31:15,789 I was doing some research in preparation for 804 00:31:15,789 --> 00:31:17,630 a a presentation I have to give on 805 00:31:17,630 --> 00:31:18,130 Monday. 806 00:31:18,454 --> 00:31:20,295 And I was looking at the amount the 807 00:31:20,295 --> 00:31:23,015 number of proposed rules under the, you know, 808 00:31:23,015 --> 00:31:25,414 the beginning of the Biden administration versus the 809 00:31:25,414 --> 00:31:26,714 beginning of the Trump administration. 810 00:31:27,414 --> 00:31:29,335 And it surprised me a little bit because 811 00:31:29,335 --> 00:31:30,315 the Trump administration 812 00:31:30,775 --> 00:31:33,380 has has issued something like a third, a 813 00:31:33,380 --> 00:31:35,320 little more of a third as many 814 00:31:35,860 --> 00:31:38,600 draft or proposed rules as the Biden administration. 815 00:31:39,059 --> 00:31:40,820 The Biden administration came in and did a 816 00:31:40,820 --> 00:31:42,759 lot of rulemaking at the very beginning. 817 00:31:43,940 --> 00:31:45,860 But what I think is different is we're 818 00:31:45,860 --> 00:31:47,085 seeing just this 819 00:31:47,724 --> 00:31:50,065 tsunami of executive orders, 820 00:31:50,684 --> 00:31:53,184 many of which direct agencies 821 00:31:53,484 --> 00:31:55,184 to go through rulemaking processes 822 00:31:55,964 --> 00:31:58,704 with a very specific deregulatory 823 00:31:59,085 --> 00:31:59,585 focus, 824 00:32:01,740 --> 00:32:04,059 where I think the Biden administration said, alright, 825 00:32:04,059 --> 00:32:05,740 we have this idea of how to make 826 00:32:05,740 --> 00:32:07,519 things work a little different, 827 00:32:08,059 --> 00:32:08,960 how to make 828 00:32:09,500 --> 00:32:11,039 rules work within 829 00:32:11,740 --> 00:32:12,640 our priorities 830 00:32:13,019 --> 00:32:15,099 and within the structure of law. We're seeing 831 00:32:15,099 --> 00:32:16,634 a much more focused direction 832 00:32:17,674 --> 00:32:19,674 from the Trump administration. So I think we're 833 00:32:19,674 --> 00:32:21,214 going to see a lot of rulemaking, 834 00:32:22,315 --> 00:32:23,055 to come. 835 00:32:23,914 --> 00:32:26,154 How that will fare in the courts. It's 836 00:32:26,154 --> 00:32:28,575 hard to say. The first Trump administration 837 00:32:29,035 --> 00:32:31,055 had a terrible record 838 00:32:31,570 --> 00:32:33,190 in terms of getting things 839 00:32:33,650 --> 00:32:34,630 through the courts. 840 00:32:35,490 --> 00:32:37,009 And I think in some ways it's going 841 00:32:37,009 --> 00:32:38,930 to become more difficult. You know, there's all 842 00:32:38,930 --> 00:32:40,070 this talk about 843 00:32:40,529 --> 00:32:43,109 the death of Chevron and Loper, bright 844 00:32:43,615 --> 00:32:44,835 Kind of the the TLDR 845 00:32:45,134 --> 00:32:46,835 there is that 846 00:32:47,294 --> 00:32:48,835 before we used to give 847 00:32:49,375 --> 00:32:49,875 deference 848 00:32:50,734 --> 00:32:53,934 to agencies on a lot of questions that 849 00:32:53,934 --> 00:32:55,234 come up in rule making. 850 00:32:55,774 --> 00:32:58,194 Now under the Loper Bright decision, 851 00:32:59,429 --> 00:33:02,889 agencies have to put forth the best explanation 852 00:33:03,190 --> 00:33:04,009 for the rules. 853 00:33:04,710 --> 00:33:07,349 So I think the bar got high The 854 00:33:07,349 --> 00:33:09,929 bar is higher now for the trump administration 855 00:33:10,230 --> 00:33:11,369 than it was before. 856 00:33:12,245 --> 00:33:14,565 And we're gonna see how this this wave 857 00:33:14,565 --> 00:33:16,745 of rule making fares as we move forward. 858 00:33:17,045 --> 00:33:18,805 A a bit of be careful what you 859 00:33:18,805 --> 00:33:20,424 wish for or the 860 00:33:20,725 --> 00:33:23,144 the dog that finally caught the car 861 00:33:23,445 --> 00:33:23,945 here 862 00:33:24,400 --> 00:33:26,559 because it's now the Trump administration that has 863 00:33:26,559 --> 00:33:28,259 to deal with the fallout 864 00:33:29,119 --> 00:33:31,700 from Loper Bright and these and Chevron decisions. 865 00:33:32,000 --> 00:33:34,079 And it should be noted doing all of 866 00:33:34,079 --> 00:33:34,579 that 867 00:33:35,279 --> 00:33:36,099 with a 868 00:33:36,714 --> 00:33:39,754 drastically reduced staff in the justice department. It's 869 00:33:39,754 --> 00:33:41,994 not interior department lawyers that go to court, 870 00:33:41,994 --> 00:33:43,934 right, for this. It's DOJ. 871 00:33:44,954 --> 00:33:47,434 That that's right. It's DOJ that's gonna be 872 00:33:47,434 --> 00:33:49,619 in court, but it's gonna be the Department 873 00:33:49,619 --> 00:33:51,640 of Interior and the Department of Agriculture 874 00:33:51,940 --> 00:33:55,700 and EPA's lawyers that are helping craft these 875 00:33:55,700 --> 00:33:56,440 new rules, 876 00:33:57,460 --> 00:33:59,619 that are helping to shepherd them through the 877 00:33:59,619 --> 00:34:01,539 process. It's gonna have to go through the 878 00:34:01,539 --> 00:34:03,980 Office of Management and Budget. It's gonna have 879 00:34:03,980 --> 00:34:05,664 to go through the Office of Federal Register. 880 00:34:05,664 --> 00:34:07,424 There's a, there's a process here to make 881 00:34:07,424 --> 00:34:07,924 things, 882 00:34:08,385 --> 00:34:11,045 make sure that things are clear and transparent 883 00:34:11,184 --> 00:34:12,005 and accessible. 884 00:34:12,625 --> 00:34:15,125 And, and we've thrown sand into gears 885 00:34:16,304 --> 00:34:16,800 by 886 00:34:17,119 --> 00:34:17,619 cutting 887 00:34:17,920 --> 00:34:20,340 agency staff and personnel. 888 00:34:22,400 --> 00:34:23,219 These agencies 889 00:34:23,599 --> 00:34:26,579 were already working at max capacity. 890 00:34:27,519 --> 00:34:29,760 People were working their butts off to try 891 00:34:29,760 --> 00:34:31,219 and get stuff done. 892 00:34:31,925 --> 00:34:33,864 And then you you reduce capacity, 893 00:34:34,565 --> 00:34:36,985 you reduce staff, you limit resources, 894 00:34:38,005 --> 00:34:40,824 and you put more work on the plate. 895 00:34:41,284 --> 00:34:42,505 It's it's just 896 00:34:43,364 --> 00:34:45,144 it's not going to 897 00:34:45,860 --> 00:34:46,519 give us 898 00:34:47,219 --> 00:34:48,519 the intended result, 899 00:34:49,539 --> 00:34:52,260 assuming that the result was to get you 900 00:34:52,260 --> 00:34:54,980 know, to move through the rulemaking process in 901 00:34:54,980 --> 00:34:57,160 a a faster, more predictable way. 902 00:34:58,344 --> 00:34:59,965 Alright. Thank you for 903 00:35:00,505 --> 00:35:02,744 this insight and for this road map for 904 00:35:02,744 --> 00:35:04,344 what's to come. I realize this has been 905 00:35:04,344 --> 00:35:06,125 a wonky episode, but I really 906 00:35:06,585 --> 00:35:08,364 appreciate you walking us 907 00:35:08,664 --> 00:35:10,824 through what's gonna happen because we're gonna have 908 00:35:10,824 --> 00:35:13,224 to follow this closely over the next several 909 00:35:13,224 --> 00:35:13,724 years. 910 00:35:14,059 --> 00:35:16,860 John Ruppel, law professor at the University of 911 00:35:16,860 --> 00:35:19,019 Utah and an alumnus of the White House 912 00:35:19,019 --> 00:35:21,900 Council on Environmental Quality. Thank you so much, 913 00:35:22,300 --> 00:35:23,599 for your insight today. 914 00:35:23,980 --> 00:35:25,440 Thanks, Kate. Thanks, Aaron. 915 00:35:30,005 --> 00:35:31,844 Here's a little good news to close out 916 00:35:31,844 --> 00:35:32,505 this episode. 917 00:35:32,885 --> 00:35:35,545 A federal judge recently ruled that federal agencies 918 00:35:35,765 --> 00:35:39,224 unlawfully froze funds awarded under the bipartisan infrastructure 919 00:35:39,445 --> 00:35:42,480 law and the inflation reduction act. The agencies 920 00:35:42,480 --> 00:35:46,019 include the agriculture, energy, interior, and housing departments. 921 00:35:46,400 --> 00:35:48,719 In her ruling, the judge who was appointed 922 00:35:48,719 --> 00:35:51,360 by Trump stated that agencies do not have 923 00:35:51,360 --> 00:35:54,554 unlimited authority to further a president's agenda, nor 924 00:35:54,554 --> 00:35:57,114 do they have unfettered power to hamstring statutes 925 00:35:57,114 --> 00:35:58,175 passed by Congress, 926 00:35:58,714 --> 00:36:01,914 AKA laws. She commanded the agencies to immediately 927 00:36:01,914 --> 00:36:04,494 release the funding, which includes payments to nonprofits 928 00:36:04,635 --> 00:36:07,275 working on everything from urban forestry to lead 929 00:36:07,275 --> 00:36:08,014 pipe remediation. 930 00:36:17,929 --> 00:36:20,750 Of course, we will see whether the administration 931 00:36:21,130 --> 00:36:23,849 follows that court order. That's gonna come in 932 00:36:23,849 --> 00:36:25,574 future episodes. You You know they're trying to 933 00:36:25,574 --> 00:36:27,034 make lead pipes great again. 934 00:36:27,655 --> 00:36:28,954 Right along with coal. 935 00:36:29,734 --> 00:36:31,414 That's gonna do it for us today, folks. 936 00:36:31,414 --> 00:36:34,934 You can always reach us at podcast@westernpriorities. 937 00:36:35,094 --> 00:36:36,855 Or don't be shy. We love to hear 938 00:36:36,855 --> 00:36:39,299 from you. If you are a journalist and 939 00:36:39,299 --> 00:36:41,719 gonna be at the Society of Environmental Journalists 940 00:36:41,779 --> 00:36:43,400 Conference next week in Phoenix, 941 00:36:43,779 --> 00:36:45,619 please drop us a line. Kate and I 942 00:36:45,619 --> 00:36:48,179 are gonna be hanging out there. And even 943 00:36:48,179 --> 00:36:49,940 if you're not gonna be at SEJ, go 944 00:36:49,940 --> 00:36:52,454 sign up for our daily newsletter, Look West, 945 00:36:52,454 --> 00:36:54,695 if you wanna keep up with the barrage 946 00:36:54,695 --> 00:36:56,875 of tax on our public lands. 947 00:36:57,414 --> 00:36:59,735 Thanks again to professor Ruppel for joining us 948 00:36:59,735 --> 00:37:02,055 today, and thank you for listening to the 949 00:37:02,055 --> 00:37:02,555 landscape.