Fred Wagner is an environmental and development attorney at Beveridge & Diamond. In 2010 he was appointed by President Obama as Chief Counsel of the Federal Highway Administration where he assisted Department of Transportation leadership on the highest priority legislative and regulatory issues.
You have a lot of experience in the private sector and in the public sector. What advice do you have for aspiring lawyers who don’t know which track to start in?
Every legal career, in my opinion, should include work in both the public and private sector. Period. You gain so much from working the different perspectives. I was lucky enough to be accepted into the US DOJ out of law school, and everyone I spoke to said, and it ended up being true, that the amount of hands on experience you get and the practical experience you get when you start as a new lawyer at the DOJ is unparalleled. I was litigating my first year cases against lawyers who had 20-25 years of experience. It was really intimidating but it made me a much better lawyer. When I finished my tenure at DOJ and that experience, I felt like I could do just about anything. I was battle tested, I did a lot of things that lawyers at big law firms may not get to do for years, and I was doing it right away. Anybody who asks me, and they say that they have an opportunity to start a career in the public sector, I say “if you can do it economically, and you have the opportunity, you should, because it lays the foundation for a legal career almost in the best way possible.”
What do you think you then gained from the private sector especially, that you didn’t get as much in the public sector?
You know, one thing that the law schools don’t really teach you anything about is the business aspects of law. When you’re in the public sector of course, you don’t have to worry about who your clients are, because you’re married to your clients. At the DOJ, if the agencies need a litigator, they can’t shop and pick somebody. The DOJ works with the agencies. When you go into the private sector you realize that there are hundreds and hundreds of choices for any particular company, you start to really appreciate the business side of law, for a lot of reasons. One is making a match between your experience and what people actually need. What opportunities are out there where I can help people promote their business? That’s one thing. The other thing that people don’t appreciate as much until they work in the private sector is the whole notion is that no matter what you say about law it is a service industry. We are providing a service for people who need us whether it is for dispute resolution or to figure out complicated areas of regulation, or whatever it might be. And you have to be good at client service. If you’re not, they can go down the street, and they do very often. Really appreciating the service aspect of being a good lawyer and the business aspect of making a match between skills and the people who need those skills is a great experience in the private sector.
How do you think your experience with the FWHA will or has affected you as a litigator in the private sector?
It’s going to affect me a lot for the rest of my career. The biggest thing that I think I took away from FHWA was the process by which an agency considers and writes rules that affect the industry sector that it regulates. The library shelves were filled with huge volumes of regulations for every different sector imaginable. They aren’t black and white—how did they get there? How did they decide that, in regulating a particular industry, this would be a better rule than that, or that this rule might be expensive but worth it, or that this rule is too much of a burden on the people we are regulating so we have to go into a different direction? So what I got at FHWA that I never had before is an up front and close seat at the table when all the regulations were being considered and written.
The best example for you is in 2012 Congress passed the law called MAP-21 It’s called Moving ahead for Progress in the 21st century. It was the reauthorization statute for surface transportation. In the law Congress said that FHWA and the federal transit administration had to write regulations instituting a program of what they called performance management. And what performance management is, its’ really pretty simple, before you invest and spend a lot of money in transportation infrastructure, you have to understand what you’re trying to address, what problem, and whether the thing you’re going to build will address the problem. For example, if you’re in an area with terrible congestion, you need to do something to figure that out. It doesn’t make any sense to build a project that will address a different problem, you want to devote your resources to where the problems really are. So we had to figure out a way to write regulations that the transportation agencies around the country in each of the states could use to track the data about what their systems were all about. Make that data available to the voters, to the public, and then figure out how they can use that data to decide what to build and where the priorities in their budget should be employed to address those resources. It’s a pretty simple concept but once you start to write a regulation to implement that idea, it’s really hard.
Every step along the way, there were really tricky and very problematic decisions that affected whether the regulation we were writing was actually going to implement the intent of Congress. Everybody had a different opinion, the state, safety advocates, citizens who promote transit interests, and obviously congress had an opinion. And trying to figure all that out in a regulation that was fair, easily understood, and could be implemented, is really hard. I had never done anything like that and I complained about regulations my whole life—now I got to see how they’re made. I have a much greater appreciation for how hard that is.
In the court, what do you find the breaking points between improving infrastructure and protecting the environment to be? How does that break down, and is it different depending on the community?
That’s a great question. There’s hardly any single infrastructure project that I’ve been involved in or that I will be involved in that doesn’t have about 4-5 different opinions about how it should be done, why and where it should be done. So by definition there are going to be tradeoffs between the impacts of the thing that you’re building and the benefits that you’re going to build. Where that line is drawn in the courts depends upon mostly whether the judge feels that everybody involved in the process got a fair shake—so that even if you’re side loses the court is going to be satisfied if the government has gotten a handle on the costs and the benefits associated with that decision– whether its reached out to affected communities, whether in fact the project itself has been modified to address some of those concerns at least in some way. The successful projects are ones that have had an organic procedure– whether they started out on point A and they end up on point B and point B reflects the input they got from all the different stakeholders. So that even if you can’t satisfy everybody 100%, they feel at least that some of their imprint or influence is on the final decision. There’s a path that the government took, say “we’d like to do this, but we ended up doing THAT” and that sort of indicates some recognition of all the different interests involved. If you do that and it’s been open and transparent, 90% of the time, you should win. There’s a 10% wild-card judge proviso. Not only do you win 90% of the time, but it’s good government policy. It’s good policy for the government to take everyone’s interest into account.
10% wild card proviso – is this the case across the board?
So no matter what your strategy, or how things are implemented, there’s always the chance that –
A judge is A PERSON, up on the bench. What’s going to trigger something in that person’s mind to really worry that person? You never know what’s going to be in those circumstances. You hope, and 90% of the time it’s true, you get people that put that aside and look at the record of what a government did: was it open, fair, reasoned, and say “hey I might agree or disagree, but I can’t dispute the process.” Every now and then you get a wild card and the person fixates on something they’re worried about and it really ruins your day.
You wrote a post in your blog “EnviroStructure” about natural disasters. You discussed the tradeoffs between rebuilding infrastructure as good as it was before and building it better than it was before so it could be more resilient. Will you talk a little bit about that?
If you think the potential for a disaster is 5% one year and then it will rise to 15 or 20% because of global warming—we have to think, is this the place we should be building? How many times should we pay, from an insurance perspective, to rebuild certain areas, again and again? The point I’m trying to make is that you can adapt, but there’s a cost to that. You can also make wiser decisions as to where you build and how you build. They get tricky because the thing you’re protecting against is not an everyday event, it is a “what if” event. Politicians are bad at that because it’s not real. They think that everything is fine today. As a country we’re going to have to come to terms with that because as we fail to address carbon emissions and the climate from a prevention sense, it’s just not happening fast enough. Invariably we’re going to have to deal with adaptation and resilience.
What do you think the most interesting case you’ve worked on has been?
The case that helped me get my job at the FHWA. A big highway project called the Intercounty Connector in Maryland. It had been proposed 40 years ago but could never get past go—community opposition, dispute over whether it was necessary. I finally represented the state of Maryland when they said they really wanted to get the road built, and they hired me to do that, and eventually we did. We got through the environmental clearance process and we actually got the road build. It was a rewarding case. I’m biased, I think it has added a lot to the community and the bad stuff hasn’t really happened. It was a great case for trying to bring together completely disparate points of view—both in private and public sector—and try to get something down. And like usual, the world kept turning, it wasn’t some big disaster like some thought it would be or some panacea like others thought—just a good solid project that is helping the community every day of the week. It was a great case.
I’ve now built a whole career on infrastructure and building major public facilities, and looking back—it’s a great job.
Is there anything else you want to say?
How I got the job—The person who recommended me to the administration for my job was my opposing counsel in the Intercounty Connector case. So even though we were working really hard on opposite sides and fighting vigorously, when it came time for him to make a recommendation to the president’s team , he recommended me. Really good lesson. No matter who you are fighting, who’s on the opposite side of the table, in the legal world, you treat him with respect, like you want to be treated. Fight hard but always be willing to shake hands at the end of the case, you never know what will happen.