and gentlemen as you can see judge world law is appearing by video from pasadena yes good morning morning good morning and i want to thank all of you for traveling here i know that these are difficult times and  thank you chief judge thomas smith please the court i'm thomas byron from the justice department here on behalf of the federal government defendants many of the issues in the arguments presented here overlap with those that this court has considered in the earlier appeal from the challenge the article three standing of any of the plaintiffs here or raise any other threshold objections other than and the zone of interests arguments that you paid to reaching the merits in this case no  collins we've not challenge the article three standing we have as you noted raise the threshold concern about the zone of interest requirement but that the district court express did address the article three standing question in the decision below and  provided extensive expansive discretion for the secretary of defense in times of war or national emergency requiring use of the armed forces to reprice ora ties the funds previously appropriated by congress for your arguments in the st part of the case what actually happens is there a transfer and a reprogramming of money from one account to another account and then an expenditure differently how does the money move in this no your honor there is not a transfer or a reprogramming of any kind all of the funds that were appropriated that are at issue in this case were originally appropriated for military construction projects they're merely being used for other military construction projects than those initially identified by congress and the secretary of defense in the budget process to in order to be expended here they don't need to be moved from one account to another account st as was true in the in the st part of the case that's right just collins and in fact i think it's it's worth emphasizing that the decision by the secretary of defense that issue here to defer military construction projects in order to make available the funds that would otherwise been used for those projects is not a decision to deny or defund those projects as it's been characterized incorrectly by the plaintiffs in the district court here it's merely decision not to undertake them at this time they remain on the list of military construction projects and can be undertaken in the future when funds become available so turning back to the purpose your honor there's nothing in the terms or the context of this statute that would suggest that congress intended to constrain the authority of the secretary of defense in that time of war or national emergency in the ways that the district court here suggested so st of all the district court thought that the definition of military construction which in turn refers to the definition of military installation was somehow restrictive that's not so military construction includes any construction with regard to entre with respect to a military installation in a military installation common sense and well understood definition of military installation is synonymous with military jurisdiction other activity and that's what is at issue here there is no there can be no dispute that the project sites here are is what the supreme court referred to in the case and that is that it is synonymous with the exercise of military jurisdiction in other words other activity is not meant to be a limiting principle but in fact an expansive principle and that definition is not intended to be anything less than the definition of military jurisdiction that doesn't mean it down last year on or there there are procedures and legal requirements that the department of defense has followed here that govern how the military acquires and exercises jurisdiction and in that sense the exercise of military jurisdiction is itself a limiting principle and a meaningful one if i made turned to the district court's reasoning in the plaintiff's arguments about what they view as a limiting interpretation of military installation and therefore military construction the it meaningful that the site that the sites for nine of the projects at issue here there's no dispute after all for two that are on the goldwater range which is a bombing facility but for nine others the military acquired jurisdiction for  for seven of them i should say military and from other federal agencies and assigned them administrative lee those sites to fort bliss but it could equally have assigned them to a new installation called it anything it wanted or even to seven new installations in any of those instances they all would equally have ben exercises of military justice and therefore military installations within the meaning of section twenty one  district court also thought it significant that these sites had not previously been used by the military but that's often going to be the case in time of national emergency with the military acquire side subjects them to military jurisdiction because of the very need to support the use of the armed forces in connection with that national emergency that can't be the limiting principle which would prevent most uses of section two thousand eight hundred and eight in event of national for such use of the armed forces the secretary of defense here in consultation with the chairman of the joint chiefs of staff has made the determination that these are necessary projects that the military construction here is necessary to support such use of the armed forces because they serve as force multipliers they permit the redeployment and the more efficient and effective use of military personnel and other resources including for example the operation of mobile surveillance cameras aerial surveillance operations aerial transport operations which will then be able to focus more efficiently on areas where an more limited number of necessary was intending to limit the authority of the secretary of defense but that's not consistent with the purpose here it's also not consistent with the ordinary principles of deference indeed preclusion that prong of this concept where it seems to read that the national emergency must require the use of the armed forces yesterday or last so the president in his declaration of a national emergency determined that the particular national emergency here is one that requires use of the armed force none of the plaintiffs go back to what the president said to to meet that requirement so the president determined that going back to the original to an earlier declaration proclamation i believe it was that he had directed and the secretary of defense had deployed  troops and other resources to the southern border to assist the department of homeland security with securing operational control of the border and in light of the crossing of  illegal narcotics other smuggling and illegal crossings that demand that require that was overwhelming the available resources of the h s runner and that in light of that and the declaration of the national emergency the president determined that this was therefore in a national emergency requiring use of the armed forces none of the plaintiffs in this case of challenge that the district court here correctly recognized that it is beyond judicial review and  think that obviously was correct turning then to the mean and the meaning of the statute where the president has made that determination the statutes predicate is satisfied there has been a declaration by the president of a national emergency that requires use of the armed forces there's nothing further for the secretary of defense to do when that when that predicate has been satisfied there's nothing for a court to do when that predicate has been satisfied and therefore the proper focus as the district court recognized is on what it means when congress later in the statute statutory provisions said that military construction projects may be undertaken that are necessary to support such use of the armed forces that is the use of the armed forces in connection with a national emergency here that use of the armed forces is to support the h s and securing operational control of the border and that support takes place in several ways there's logistical and administrative support there is as i explained a moment ago the operation of surveillance cameras surveillance by aerial operations aerial transport operations and the like all of those can be done more efficiently those troops and resources can be deployed to other locations along the border and that is essentially the kind of military judgment that the secretary of defense is charged with making and here did make in consultation with the chairman of the  finally i'd like to address the balance of harms and the public interest we've explained in our brief that in this appeal as in the earlier appeal the balance of equities does not support the entry of an injunction or a declarator release and in this case the district court properly intrastate pending appeal in light of the supreme court's entry of a stay pending appeal in the earlier appeal it would do then be no remedy if we were to find that there was a cause of action and that it was not within the parameters of twenty eight dollars oh wait and that it was on authorize we should just do nothing and and let it go forward  i think the answer to that is yes and let me explain why so the availability of an injunction is not a matter of course when a court finds that there's been a violation of law and the supreme court in this court effect knows that repeatedly death clara turi judgment by clause is an exercise of the same equitable powers of as its injunctive authority and for those reasons we believe that the balance of harms in this case as in the earlier appeal does not support either injunctive or declaratory release now that doesn't mean of course that the court can't reach its legal conclusions if it finds that there is that these are proper plaintiffs to bring these claims concerning these projects in forcing the statutory provisions all that it means is that the exercise of equitable authority requires an additional analysis beyond that legal determination if there no further questions i'd like to reserve the remainder of my time for i'll just go on can you tell us what the status of the construction is right now your honor i believe that the status in several sites and i don't recall how many has begun i don't believe it's been completed on any of the sites the last time i checked with d o t are going to thank you morning your honor if that's all right i'd like to briefly just address the review ability question not looking to duplicate what we did here before and then turn to the other questions i want to emphasize that not only have defendants asked you to disregard entirely the previous panel's persuasive decision but in addition they are asking you to create a circuit split with the d c circuit when they say as to both parts of this appeal that there is no review of u s actions without meeting a soon of interest requirement as we pointed out that clashes both with haitian refugee center as well as chamber of commerce both of which are cited in our brief here as well as a dissociation for lutherans st us postal service which is cited in our previous brief that said section two thousand eight hundred and eight really has to be met or has to be contended with in this case regardless of what this court finds as with respect to section eight thousand and five and that's both because as we've explained the supreme court input chalk made abundantly clear that when land use is even arguably within a statute then interests relating to land use whether they be static or environmental are within the zone of interests but it's also because and judge thomas this goes to the question you asked last time we were here about ultra veer is  defenses and whether there was a zone of interest that applied to a defense it's because in this appeal we also have and this is at thirty seven dollars of the district court's decision a claim under the national environmental policy act and there's no argument that the findings have made in this case except that section two thousand eight hundred and eight dollars provides them with authority to disregard the requirements of the national environmental policy defendants i assume would agree with us here within the zone of interests of ne i think it's pretty clear that the district court was correct in that defendants are advocating for an unlimited principle in which the department of defense under section two thousand eight hundred and eight dollars is free to fund whatever projects whatever civilian projects congress rejects we're not writing on a blank slate here in terms of who is responsible for border security congress set up a comprehensive system and that pages forty seven to forty nine of our brief we lay those out  not only set up a system in which it is clear that civilian law enforcement is charged with protecting the border and conducting immigration foresman it even provided specifically an eight u s c section eleven of three for what to do if there is quote an actual imminent influx of aliens near a land border that presents urgent circumstances so this is not a situation in which congress is silent and we're trying to puzzle out what can the department of defense do what is its responsibility within our system congress has told us and that's i think it's sixteen they themselves point out that among the department of defense resources that they've allocated as part of this border surge is military lawyers who are you know conducting immigration prosecutions and u s federal courthouses along the border presumably if they want to build office space for immigration attorneys they would not be able to do so under military construction merely because they've sent lawyers the border similarly congress has been considering both the border wall but also other immigration enforcement related issues like how many prisons should be built to hold arriving immigrants should there be prison space provided for immigrant families and children these a consequential policy questions that congress has considered and legislated under defendant's view because the emergency proclamation declares that the entry of unarmed family units requires the use of the armed forces that ends this court's inquiry and that ends congress role should congress decide that it does not want to provide spaces for family detention immigration detention then the department of defense can say well holding holding unarmed immigrants is a force multiplier allow us to redeploy those troops who are currently charged with doing well in this checks and warming up meals again all of which are things that the defendants have said they're they're providing to the h s that is such a radical departure from both how congress set up our immigration system and how section two thousand eight hundred and eight has historically been deployed that it's i mean it it would require i think a very persuasive who is in charge of immigration enforcement in our system i also want to say i think i heard the defendant say that none of the challenge that this emergency requires the use of the armed forces we certainly did your honor and we make that argument here as well as forty six to fifty three of our brief  finally turning to to the equities again this isn't a new context in which the executive branch is saying national necessity military necessity requires that we take an action and if we're already of the balance of the equities which is to say you've already found us the district court did that section two thousand eight hundred and eight does not authorize this conduct then although the defendants say you should just let it happen anyway there is no case that stands for that principle instead we're firmly in youngstown territory and there you have a series of decisions all of which say the court doesn't turn a blind eye to it so you have judge frank just as frankfurter saying you  more than that you'd also be looking at a situation in which in youngstown when the court upheld the injunction when the when the supreme court said although this is a case in which the greatest military necessity has been invoked the commander in chief is saying we need steel production for the war effort there were at that point where years into the korean war there were one hundred and eight thousand american casualties already fallen and nonetheless the supreme court said when they have no authority to step beyond what congress provided the quote it's not the court's role to give them that authority instead it's the court's role to enforce a core separation of powers distinction terms and then it says or other activity under the jurisdiction why it is in that position as a marker to bring this within twenty eight well i think your honor that if or other activity under the jurisdiction meant literally all activity is under the jurisdiction of the secretary of defense then there would have been no need to use all those other terms so this is what the supreme court told us for example in gates of united states when it when it when there's a list of documents and then it says or other tangible object you don't interpret other tangible object to include virtually anything that's also include stuff son and there are many cases the district court cited in general we don't use a list of terms with a residual clause to say the residual class extends far beyond every other one of those terms what's unusual about it is each of those things is a place a basic camp opposed to station a yard or center and you would expect or other location or facility and instead this is activity doesn't that she defect that the term is different from the things that proceeded does and that provided textural clue that it goes beyond merely the types of terms that proceed i think that's quite possibly on the district court did say you know the other activity doesn't mean only base post camp it is trying to capture of some other type of action that the department of defen engages in but it doesn't it shouldn't be read to literally swallow all of those other items in the list and render them superfluous because what they're saying is not other activity they're saying literally any land under the jurisdiction and of course here there is no activity that  is going to be conducting at these sites their entire theory of force multiplier is that you will take those soldiers who are currently stationed at these border sites that they've announced our military installations and move them immediately to new sites which are not military installations which remain under control and so there's no way in which is conducting any kind of activity here and this case doesn't call upon you i think to take out the outer limits of that term it just says that there are limitless version of it argue that the goldwater range is not a military installation so fur nine of the eleven projects we say they're not a military installation for the cold water range we're in agreement with the defendants that the goldwater range is a military installation as to those two projects though they still haven't satisfied the other section twenty eight dollars progress in that border security to prevent immigration which is what that which is entirely what the administrative record says about the goldwater range so there's as much as there is i'm a little bit over but in their brief they contend that there was a military judgment made about the incursion of drugs or whatever onto the range affecting military activities and as we point out the administrative record is very clear the only military interest in the goldwater range barrier is to reduce the burden on v h s which conducts border security on the range against an authorized entry so we don't argue in any way that goldwater range projects are not on a military well the authority has cabins some of the department defense to construct walls on its own property well again your honor we're not saying that you mean i think your argument is they said it was for one reason but it's really not but that's true of i think that goes to this section two thousand eight hundred and eight dollars specifically so of course if the department of defense believed that a wall was necessary on the goldwater range what they would do is they would go to congress and they would say we need a wall in the cold war that's how congress exercises its control over the budget over activities and all of the military construction activities they are on or at was asking about the were there were deferred or defunded or however the government's got what happens the department of defense presents to congress and it says we need this capability section twenty two outside of that section twenty two it says if you have have an emergency and it requires the armed forces then you could build a border wall you know maybe if it if it was to repel a military invasion if that was something that there was an emergency need for on the goldwater range or anything else then you know perhaps section twenty eight dollars would be satisfied but that's not the case here and so it's not about deities ability to construct walls you can construct any kind of facility on the water range but what it does is it asks congress to fund it it my name is heather leslie and i'm appearing today on behalf of i'd like to take a step back and discuss something that while we did discuss last time it's still very relevant here those are three separate constitutional claim and it's important to understand that each of these are separate independent claims which can provide the basis for ruling in the state's favor and they are the same as they were when we were here last time the previous motion and that's because the defendant's actions are essentially the same so what happened under the separation of powers is that congress made its expressed well very clear it said you get one billion three hundred and seventy five million dollars for a border barrier in southeastern texas and what they're defended stead is say no we would like more money to build additional barriers in additional locations when it's appropriate t repeal the authority and twenty eight dollars oh wait no your honor it's not an express appeal but then how do we have a judgment that no other authority may be used well this goes to the appropriations cla which says that use all uses of appropriated funds must be affirmatively approved by congress the mere absence of a prohibition is not sufficient was two hundred and eighty way mentions appropriations and says the extent of the appropriations that specific appropriation from dio to d h s if the appropriations calls prevents congress from authorizing spending in that way with the general stature to one agency in a specific to another i'm not seeing in emergencies or health crises or something like that but what cannot be done is where congress has given a specific limit very same day that the president signs that into law he can't modify it and add to it with an additional billions of dollars and new locations so that's what's at issue here it's that there is a specific congressional intent on the record very clear abundant we had a record breaking a partial government shutdown over th and so in comparison when you look at those facts that's why we have these key constitutional claims here it's because of the record of what happened in this case in particular so there certainly could be uses of section two thousand eight hundred and eight that comply with the constitution but as applied here the use of section two thousand eight hundred and eight is unconstitutional given that i would like to turn to what newly before this court importantly from the states perspective  unique financial harms so we have we are suffering thirty six million dollars in lost tax revenue as a result of the deferred projects that you heard the defendant speak about and i want to be clear though the defendants said that they are not canceled there's no money for them to go forward right now and many of these projects were scheduled to have already gone forward so if you look on page  a very helpful chart that says the award dates that were for each military construction project that's been deferred and so for example there were supposed to be a child development center in maryland it was going to cost thirteen million dollars the award date for that contract was january two thousand and twenty so we've already passed that so we're already suffering a heart into the deli that's next door to that childcare center do they have a claim to because their business will go down because the childcare center  city declarant explaining that the loss of tax revenue from decreased sorry increased traffic in air pollution downtown as a result of a federal project would decrease the tax revenue of the business center of the city and there the th circuit said that was sufficient and we certainly have that here we have unrebutted evidence from an economic expert who took these particular projects and put them on a widely used economic model and determine the amount that the states would lose from that so we don't have the traceability issues that kate cases like iowa vs block and arias for says diane court raise in that defendant cite where there it was looking at things like general budgetary deficits and comparing and trying to look backwards and say what cost here we have unrebutted evidence that starts with the projects that have been defunded and goes forward from that so we don't have the same traceability issue that to focus on the cases they cite so so it would be a question as to whether or not someone could prove it in that sense but i think internal transfer provision but not a transfer provision but something that is used to change the balance of priorities for different budgetary appropriations so prioritizing one military construction project over another and that's precisely what the states are injured by here by prioritizing border barriers over the military construction projects that were set to go forward in our states the states are being harmed by defendant's actions and given that the zone of interest test isn't about showing that congress intended to include the plaintiffs in that zone but rather showing that the plaintiffs are sufficiently can brew it with congress interest when in fact at that haven't discussed yet today a defendant explained when describing how this monetary process works that this is not a reprogramming or transfer provision and they certainly didn't say that it was one in  this which was twenty one thousand consolidated appropriations act or another appropriations act and so it's clear from the language of section seven hundred and thirty nine that congress did include a prohibition on exactly what defendants are doing here supplanting their budgetary authority and their budgetary decisions with billions more dollars for the same item that they've already taken issue with and so because of that we have an additional statutory claim an additional evidence of congress's intent in this particular case turning to the balance of the equity is before you leave seven hundred and thirty nine which your response to their argument that program project or activity is a budgetary term of art as is reprogramming or transfer and given that this doesn't involve the shifting of funds from one account to another that seven hundred and thirty nine doesn't apply at all act or another appropriations act and so that's about congress going back and considering funding and deciding where to give more money to and here we simply don't have that we have a more general storage that clause that is attached to reprogram reprogramming or transfers so there's theory is that because its program project or activity it's talking about moving funds and the access as you can't do that unless such changes may pursue into or reprogramming or transfer provisions of this or any other appropriations act it still has to be a reprogramming or transfer they were given is that it's because there's no reprogramming or transfer of that seven hundred and thirty nine doesn't apply what is your response to that even if perhaps section seven hundred and thirty nine doesn't apply but we don't think that's correct that what they're doing here is transferring funds from one military construction project to another and they've pointed to nothing to suggest that it's different in this scenario simply because it doesn't i see that my time is up so i would like to reinstate request an injunction on behalf of the states in particular and thank you very much  good morning your honor josephine morris for the u s house of representatives and st we wanted to thank the court again for extending us the courtesy to allow us to continue to participate in this very important litigation given the ongoing appropriations clause violation that's happening here and its direct effect on congress if i might i would like to make a few brief points about the statute that the administration is raising its as it defense here st with respect to military installation and the definition in the statute i think it's important to understand that what is actually happening here is we have individual parcels of land one mile here two miles there you know twenty miles in and in another area that are all being stitched together and called a military installation so i do think that we have a real situation where you know using the catch all phrase to address judge collins question really does allow for a limited list definition and interpretation of the statute that goes against congress isn't tent you know and i think it bears emphasis and repeating what the history of this statute and sort of the intent of these kinds of emergency authorities are you know this is a statute that's intended to be used in a time of national emergency where there's been a declaration of war in there or a declaration of war in the past this is been used eighteen times from two thousand one to two thousand and fourteen for a fraction of the amount of money the three billion six hundred million at issue here less than half of that in a true military situations that no one would dispute security for weapons of mass destruction building airport hangars you know helping you know purify the water supply in afghanistan in iraq in military locations and you know i understand the question about other activity but it is given meaning by by being in that list of terms that proceeded and it doesn't mean just sort of disparate parcels of land brought together for a purpose that is divorced from a military purpose moving on i want to also address another the other probably the statue necessary to support the use of the armed forces you know i think that the record here is clear and i think my colleague from the department said as much that what's going on here is support of v h s and c not support of the armed forces and certainly with respect to the statutory term use what's in visioned here is actually going to at the end obviate the need to use the armed forces because they will be allowed to move on to do other activities so really you know looking at the record that entity being supported here are d h s s in c b p not the military and that again goes against both the play in terms of this statute does not meet the military necessity stand and really goes against congress is intent in passing these kind of emergency authorities that allow in through emergencies for funds to be moved from one set of military construction projects to another  gather the house agrees that the states are suitable challengers to raise an appropriations cause some related causes of action so we have not independently in our images brief in this case brief the threshold issues we have in our past briefs in this ongoing litigation addressed those issues and we stand by what we've said in our prior briefs that there is an appropriations clause violation going on here a quite serious one and that there are you know injured parties who are supporting here yes i am my precise question really want to sort of as a lot of interest issues the question is whether the states  suitable representatives of the house and i gather the house's position is that they are or or maybe not so you know what we've said in the past and what mr letter said when he was arguing before you in the fall was you know that we think this unadventurous analysis in the d c circuit opinion haitian refugees really controls here when you're talking about an executive branch action that is happening ultra varies outside of any statutory authority we don't think it makes sense to impose you know a zone of eliminating zone of interests analysis because then you would have injured parties who were never even envisioned to be within the four corners of a statute who may not be able to get relief so that is the you know that is th analysis that we think applies here the analysis that the d c circuit applied can i ask you which your position on the section seven hundred and thirty nine issue we have we have not taken a position on that in our brief in our brief in in this litigation in another litigation we've addressed the twenty we've addressed the appropriations clause violation and we've addressed section twenty eight away or do you have a position i can't get out in front of anyone and i'm only allowed to discuss what we've briefed here there's a process on our end and i'm really sorry your honor is that i'm not able to do that today and i think for just one for just one further point about the statute to make clear that you know there are three factors in this statute there's of course required to do no emergency requiring the use the armed forces necessity problem and the military construction pronk all only one of the you know the administration only has to have been found not to have met one of those  for their claim to their defense to fail under twenty eight ok so thank you very much for your time of course thank you that's an extraordinary claim in light of the purpose of section two thousand eight hundred and eight as we discussed earlier that purpose being in the instance of a declaration of war or national emergency requiring use of the armed forces to give expansive discretionary authority to the secretary of defense nothing in the appropriations statutes that they sayit or the immigration statutes that the point of cited today suggests that congress intended to limit or repeal that authority secondly i want to be clear about the argument that we were discussing earlier and that the sierra club plaintiff plaintiffs addressed today about the nature of the argument about whether this is a national emergency requiring use of the armed forces at page fifty of this you're a cut plaintiff's brief they make clear that they are not challenging as i read the president's determination this is such an emergency instead they appear to be arguing as i think they have again today that this court should undertake an independent determination under section twenty eight a way of whether this is such an emergency  not appropriate now i ask you a question since they raise some issues about the zone of interest test i want to make sure i understand the statute here in the in the prior case there was kind of a three step process whereby st there was a transfer there was a transfer and then there would ultimately be an authorization to waive the environmental excuses compliance with any but if that's true so if if you meet the criteria of two hundred and eighty weight and then that flips the switch and in one shot as opposed to multiple steps the environmental laws get waived then you know why doesn't that bring for example the states concerns about their environmental laws into the zone of interest because now we're talking about a statute that sets criteria for what will be a waiver of environmental laws why doesn't that bring them into without regard to other laws not just environmental laws after all but but but a wide range of other laws and that is for the purpose of ensuring that expansive discretionary power that we discussed earlier there is no indication that congress intended to allow litigants raising environmental interests to challenge the kinds of limitations that these plaintiffs have sought to invoke that is to say military necessity or the definition of a military installation they are not they are not proper plaintiffs they're not what the supreme court and patrick said were ordinary or expected litigants to raise those limitations and i want to go back to patrick for a minute if i may your honor because the sierra club plaintiffs in their argument made the extraordinary claim that patch act would authorize any land any interest related to land whenever a  statute refers in any way to land use that's not at all but patch access in fact it's very clear that it ought that it suggests the supreme court there analyzed very carefully the particular statute it issued there and the the reasoning was that where the acquisition of land was expected to be based on the possibility of conflict with neighboring landowners those neighboring landowners were expected to be ordinary  igants to enforce those provisions not so here very different interests at stake looking at this court's decision in northwest requirement utilities the plaintiffs arguments here are is the court said a here in fact directly contradictory to the call to the interests and purpose of the statute congress and acted i do want to address briefly if i may the appropriations cause claims which i think are somewhat confusing and  i want to go back to the argument raised by the states that somehow the constitution would prohibit congress from both imposing as they as they view it some limitation on appropriations for  authority in that way in fact lincoln against vidual makes clear that congress can enact a lump sum appropriation for the department and impose no limitations at all and when that's the case of course it can do what it did here which is carve out a very specific authority in the event of a national emergency or declaration of war and finally ron i'd like to address the state's claims about indirect tax revenue reduction judge collins you asked earlier if we were challenging the article three standing of any of the plaintiffs here and we're not because some of the states have all that standing california new mexico in particular with respect to the particular project areas and so we didn't challenge any of the state's standing in that case but it is clear as well as we make clear in our response reply brief that the kind of indirect tax revenue changes that are ordinary and expected with regard to federal policies they affect the the economies of states all the time your honor those are not sufficient even for article three standing if they had sought to litigate those injuries alone and off for story they're not sufficient for of interest or the balance of harms analyses in this case what's the point of the state's standing that you don't challenge so your honor the the states of california and new mexico have asserted environmental interests and we think that those are insufficient in the balance of harms as we find in our reply brief response reply brief but we don't dispute that there are sufficient for standing purposes and you challenge the standing of the other however many states are in this case we would have your honor if those states had sued alone to challenge solely the indirect economic effects on their taxes however because the standing of a single plaintiff in a case of sufficient to allow the case to proceed we've not challenged independently or separately and i ask another question about the logistics here when the construction it issue here is completed will question directly the plaintiffs have argued that that deal do you would abandon these projects sites but i don't think that supported by the record in this case i'd want to double check that if if difficult circumstances and for participating or allowing us to change the time at the last minute which is always disconcerting when you're arguing and you're counting on some certain prep time before your argument so i hope it we're going to make some adjustments on our upcoming panels that will affect some of the people who are going to be on a case by case basis but we're going to try to accommodate attorneys who wish to appear remotely in light of the ongoing corona virus situation if you want to check with our clerk of court we won't have any for firm answers for you today but since you're here you may want to check with molly dwyer and just establish a line of communication and on how to