good morning your honour's and may it please the court i'm david becker on behalf of petitioners friends of the columbia gorge and save our scenic area with me at counsel table is nathan baker staff attorney for friends of the columbia gorge i'm going to reserve five minutes of my time for rebuttal this quote is recognized to that renewable energy projects can have serious environmental impacts and nowhere is this more true than in the columbia river gorge where the turbans of the whistling ridge wind project would tower above the ridge lines in the heart of this unique federally protected national scenic area and be the first industrial scale wind facility in a forested habitat anywhere in the pacific northwest i'd like to focus on two ways in which the monocle power administrat analysis precluded informed public participation and informed decision making by not evaluating a reasonable range of alternatives let's stop for a second because i think the primary issue in this case for me the primary question is whether or not this is a federal action at least a seminal question because we don't get to the knee pain alice is if it's not and the power authority determined that it was not a federal action and therefore didn't need compliance how do we review that determination i think the looking at the itself the bonneville power administration is the lead federal agency and it defined the proposed action the turbans the federal substation the well i don't think he has solved this for us the e i a s is pretty clearly there is a federal action here after all they think the federal actually is the interconnection not the entire project and they any i a s with respect to that and the state component doesn't the i r s with respect to what they're doing so my question is when the bonneville power authority says we don't think the entire project is in the i ass is a is a federal that's true your honor and so now now the question is you're attempting to say it's a federal action because these two things are are interconnected is the wrong word tempting to say the whole project is a federal action as opposed to simply the interconnection done by b p a their primary argument may be wrong but i want to hear why is that is that no all we have to file an e i has floor is the inner connection not work whatever damage may occur to the environment from did then arbitrary and capricious not to do what yours is just arbitrary capricious or not otherwise in accordance with law and there are regulatory requirements here that make this a that make the federal and private portions of this a single action the the question boils down to what your honor addressed in the imperial county air pollution control case whether there is independent utility of the wind turbans and the federal substation and whether that's that's one of the factors but here we have to sort of walk through it to state the state side of it if you will the wind farm there's no federal funding that's right no grants no federal supervision that's right you agree but if it weren't in the connecting to the b p a power grid it would not have a requirement to file a federal gas yes there but that's not at four seventy seven this court case from one nine hundred seventy nine and in that case the court held that b p a had to prepare any i a s for a private aluminum plant because e p a had contracted to provide the transmission for that plant and this court said that b p a shares the responsibility for the environmental effects of the private development and so that case that r fifteen zero eight point two five that say that when you have a a project where the actions cannot proceed without each other or are interdependent parts of a larger action they must be considered in the same e i a s so it's it's a matter of and of course the the once once once a project is connected like that as the when turbans and the federal substation federal inner connection are in this case and where the e i a s itself defined this is all part of a single proposed action once once that is required and this happens all the time it happened in the case of the oregon natural desert association v jewel that judge fisher was familiar with where the private land turban site had to be evaluated in the context of the federal transmission line that was being that was being set up there and once there is this obligation and that the courts review is of what the agency actually did in the e i a s and they purported to evaluate the trade the turbans and the transmission line you know now you're back to the adequa gas and you know i'm going to say on that part of the case if there if one is required i want to hear from your opponents but i think you've got a fairly strong argument that the i r s doesn't completely comply with  question if if it's one project i don't think there's any doubt here if the i r s merely deals with the environmental effects of the interconnection taken alone it's perfectly adequate and so mike i'm still still struggling with this notion that it becomes whenever you hook up to a federal utility line the whole project becomes federal so tell me again and anyone walk me through what there is here other than the mere fact that other than the fact that the project would be more difficult for the project to operate if they couldn't get bonneville xgrid they have to get somebody else's what is their that makes this a federal action other than that let me first say there is no way that the this project would happen it's been six years since the sites but it's it's happened so let's assume for example today we enjoyed bonneville from providing power to providing an air connection to this project are you saying that it is inconceivable that the state might find some other way to provide a connection to this project on the phone on the record in this case your honor yes because it's been six years since the site certificate was was issued and there hasn't been any activity whatsoever on this project there's been there's been no further action connection then we never build the project it may turn out to be a white elephant or whatever the correct red herring or whatever the correct correct animal appellation is here the question is is the project so dependent on b a that it could not possibly be done and yes your honor and the and in the in the further excerpts of record at page twenty nine the only local public utility district does not have the ability to interconnect this project and doesn't have the capacity to transmit seventy watts seventy megawatts of energy so and at the at at the moment but my question is my question is if if we said b p a was not available w does that mean the project simply could not go oh yes and that is that is the that's the facts also something that to be the case is that enough to make the project a federal project in other words if if the only practical way for you to proceed is to hook up to b p a does that mean that your project is a federal project because that's really i don't think the question i see here in terms of the in terms of making it federal doesn't have any federal money no federal planning with your state planning and b p s only role is to hook up to the grid and so the question is is is that enough to make the whole project federal simply because it couldn't proceed unless b p a look them up to  involves a army corps of engineers permit and in that case the corps admitted that without the permit it the project couldn't go forward it would have to be one one one three at one one one eight case from two thousand and five held that where the court had acknowledged the project wouldn't proceed if the court denied the pundit it had to evaluate the entire project as a laid out sort of five factors that might might make it interconnected project a federal one and to be sure this is one of them but i don't think it was the only one in this ng or in desert case was i do i think there were other factors as well and ok practicality of going forward without the federal component was sufficient to make the project it may not be we may be an organ natural associate doesn't the jewel case is directly on point here because in that case the turbans were on private land and the only way that the power could be sent from the turban site to the power grid was through a transmission line on federal land administered by the bureau of land management and in that case the fact that the turban site would not have been able to as a practical matter operate didn't mean that the turban site even though it's private and the federal transmission line had to be evaluated in a single us and that that is enough and the fact that both in that case and in this case federal interconnection this project will not go forward so b p itself up stop for me on organ national desert was the federal nature of the project at issue in oregon national debt or the issue wasn't litigated no but again ok good so yes i said help me help me with a case where that issue was litigated is there or is there a case that we're with the federal nature of the project was litigated where we're nearly the i look at weapons and i think it goes the opposite way for your argument except in that case your honor at two twenty two if third at one one one seven and one one one one one six through one one one eight so if you look at in the middle there at one one one seven the there is a specific holding that not only could the private part of the project go forward but in fact it was the corps hadn't issued the permit yet and yet the other part the private part had was already proceeding that's not the fact here but it seems to me that in wet limbs we noted the district court's determination and now i'm reading that the project would not be able to proceed as planned without the federal permit bob was correct and reversed the conclusion and said this does not render the otherwise independent state action a federal action and the difference there is that the court also added the glossy to me to be the same thing you're arguing here no it isn't your hon i bring it up because because in that case the court added the gloss that the type of interconnectedness there was not the type that means that the private action cannot proceed without the fed with without without the  the federal army corps permit they said the minute their language is pretty big although there may be no reason to build the interconnection if the rest of the project is not to be built federal jurisdiction over this small segment of the project is not control and responsibility or over the rest of the project sufficient to federalize the entire project and again if one if you continue on this gets to the issue of independent utility in that case the private project was already proceeding without the corps permit and the court said that that there's always going to be this kind of interconnectedness in this kind in that particular kind of development project where there are a few wetlands in one place and then a larger project somewhere else that's not the case here here there is an absolute inability of this private project to proceed as as the not in accordance with forty c f r fifteen zero eight point two five which says that connected actions have to be addressed in the same e i a s if they cannot or will not proceed unless other actions are taken simultaneously or interdependent parts of a larger action that is the law that applies here that makes it obligate the obligatory to the b l m to it to consider the turbans and the inner connection as part of a single action and to do so in a single yes and that's what they did i'd like to reserve the rest of my time if i can thank you washington went through an extensive state process it was litigated up to the washington highest court barnacles role here was exceedingly small and limited simply it's not exceedingly small i mean the project record does don't think anybody is attacking the sufficiency of the i a s in so far as it as it as it involves the environmental consequences that will come simply from the interconnection the question is whether or not that interconnection makes this a federal project on which eddie i asked must be filed with respect to the whole project now understand your position is that the ice is ok with respect to whole project but let's let's if we don't get the profit and i will agree so well how do you get past support of historia i think part of a story is a distinguishable on a on a basis of the fact that in that case actually the court didn't just look at a simple but for type analysis it actually did consider whether or not bonneville was supplying power to this proposal lumen implant i believe that was the facts in that case we were i believe bonneville was actually building a transmission line to that facility so going back to the exceedingly small role in this case where we're just literally plugging them in basically by building some little facilities with long and existing transmission and you know since i was a contractor supply power rather than a contractor transmit power does that make a difference i think it does your honor and the fact that we're not purchasing the power hypothetically if we were potentially purchasing the power from this when facility maybe that would be a factor to consider but i think that also brings up the broader scope of the analysis that your owners are recognizing in the when action network case where you look at you can can look at this independent independent guilty component but well an action network went beyond that and consider whether or not there was federal involvement whether you had jurisdiction over the site whether it was federal funding involved none of which are at play here but if i understand your colleague's argument correctly i think he's not contesting that there's no federal involvement in the construction and development of the wind farm he's saying that the mere fact i may be putting words in his mouth but let me do it that the mere fact that the that the wind farm couldn't exist in the absence of the ability to interconnect to the b p a grid is what makes this a federal project and so tell me why he's wrong i think because of the when action network case analyzes more than just that factor in looking at whether a otherwise between the federal and nonfederal components of the project that was additionally there and yet the court found that is at play in most places where you have some kind of federal involvement in a non federal activity of course or coming to seek a permit so there is something  is going to do that is probably important to that non federal project we've identified a number of factors to consider and assuming that this interdependency is the only one is there are there cases in which the inner dependency is so large that it's federal even though none of the other factors are involved certainly it seems to me point of a story and might be one of them isn't it could be when you have but that wasn't only on just interdependency it was actually enablement of one of the federal action there was selling the power and building a transmission right and so so that the question is what were the environmental consequences of selling the power gilding not just building the line but of selling the power transmitting the power we're not talking about the we're not talking about what's called what happens on the wind farm right if in a story we're talking about the environmental consequences of selling the power that it seems to me a direct environmental consequence of that is what happens at the aluminum plant so if i'm following your honor that's why i think the cases are different and i actually think they are and if you do want to look at the transmitting the power and impact of that it's over existing lines so there is no impact so i don't think anybody see i don't think anybody's arguing that for a transmission of the power causes any additional impact the question is whether the fact that you're agreeing to transmit the power in effect makes you responsible for the project and i think that brings us back to wh action network an innocent martian cases that really are dealing with a discrete federal action that has a non federal private state or local cited activity associated with it and how much responsibility  federal government need to take for that non federal portion doesn't matter and this is i think again i'm trying to ask you to respond to an argument that we may have cut off your colleague on i mean really it looks like it's impossible for know i don't i don't believe it is i think the fact that we did the jointly i asked the state of washington has a many need to process the state environmental policy act they have a similar type requirement as we do to analyze environmental impacts of its proposed action uses the same terminology so it made perfect sense for us and the state to work together and define a proposed action but throughout the process from the notice of intent through the i r s is through the record of decision we were very clear on the distinct and separate actions being taken in this case one by the state of washington for citing the when facility the other for us to granting this request for interfere nexen and in addition we why no action alternative  let me ask you a question about that because i'm i'm sympathetic to his argument on that point before you do if i get interrupted him and the reason i think this question is about to ask is never good is that it seems to me that they do not identify any nepa defects or environmental defects in the interconnection itself correct correct that's our understand they don't allege any defect in the analysis of indirect or cumulative effects associated with this limited interconnection i believe so the only thing that we're really about we're going to to go is the wind project outside of the interconnection correct those are the therefore i think judge judge her what's a question is important to me as well because it seems to me if you have to defend this even if it's only talking about the interconnection but i don't think so so my question is this if you really are responsible for the i asked for the entire project how can it be i asked it's simply evaluates the current situation and no no other activity going on and we were citing this wind project which we have no statutory authority to do you could i would concede we could look at alternatives that simply are not the facts here we are in reviewing this we need to look at it under the rule reason and it was reasonable in this case for the federal agency bonneville to work with the state in reviewing these alternatives and i don't i don't i don't think the fact that you filed a joint project and worked you know in ok th asking a different question i'm asking let's assume that you're responsible for filing a class for the whole project it really doesn't do anything except say well the only alternative is to do nothing and that's no good and therefore we have to go forward with this one that's that's not normally what we see in the high asses it can be and in in your honour's opinion in the california x well imperial county case the point was made well may that there's no numerical floor on the number of alternatives that need to be considered it's what's reasonable in a pragmatic sense given the circumstances of the case so i think it brings it back to the granted it you know i don't want to spend time on the joint i asked process too much but the fact that the site the state was  why there eliminated and we concur with that i think we should be mindful of that and respectful of that as well so again i think in this case it is reasonable and there are such as the california attorney mitigation  did you did you discuss any mitigation measures other than saying mitigation is going to be done to the extent feasible we in the past we have specifics on oil on a number that the mitigation identified in there i don't have specific sites to those if you're looking for those right now but can we say that just listing mitigation measures isn't enough i believe absolutely listing is not enough and we did the agency did much more than that there's over one hundred mitigation measures identified some of them most of them rely as not surprisingly on state or local processes which methyl valley of the robinson methyl methyl valley recognize that there's only so far you have to go and in flushing out those alternatives as a federal agency what are the let me ask the question differently let's assume this was a entirely a b p a project or do you think there's insufficient assessment of the effect on birds if this were  i'm following you so you know if this were an entirely federal project and the discussion of the possible effect on bird populations was the one in this ng i asked i have a hard time thinking you took a hard look at  it tell me why i'm wrong about that so i will i can definitely tell you i think that there was extensive survey work done there's not only one method that needs to be done to collect bird data the survey work was done on site which distinguish from some other cases that have come before this court there were specific data collected on these birds that allowed for a reasonable analysis of potential impacts so in my mind yes this was indeed there multiple years of surveys actually spread throughout the year that covered the species that were addressed in had the potential to occur at the site the i guess documented that included for specialist reports as appendices describing the surveys the methodology the reasonable conclusions that were drawn so yes and there is as mitigation plans for advisory committee to evaluate them in the reality is often you can only do so much in advance to to describe what potential impacts for the core occur and then you can get some of these happen and then you can and as we was recently done here in adaptive management type approach to mitigate if necessary if i understand this you had three arguments one is this is in the federal project and if it is the  light or developed subsequent to the final in two thousand and eleven once petitioners here brought suit against the state of washington and the citing process there was a gap here and while that litigation resolved itself and then b p then i see your argument is that if this was a federal action nothing occurred between the time you filed the yass and the and the action to to require  to us by petitioners to answer and address and make sure that did not trigger the need to do a supplemental yes ok that's ok now if i could i'd like to go back to mitigation absolutely it seemed to me that what you really said in your briefs was that you're conceding that the f b i s doesn't address the effectiveness of the medication do you agree you know i i don't agree with that your honor so i thought that's exactly what you said mediation effectiveness in the f b i s implicitly and that's what i was you did get to is so i would say there's more than one way to skin a cat you can prove effectiveness and even if you are to agree that  identified and then for each section for all the resources there is a discussion of unavoidable impacts after mitigation that that approach can understand your argument because it seems to me what you're saying is the project yet to be built and the third parties have some responsibility for carrying out that mitigation correct but i guess i don't know how that agrees with our case which is south or bond council  shoshone the shoni case right correct which says and he sent component of a reasonably complete mitigation discussion is an assessment of whether the mitigation measures can effective so yes i think there's a potentially conflicting decisions in the circuit to be honest you are looking at again that's all valley and what it required and what this court followed subsequently as well as in let me get open again highly in alliance b williams which recognize that a decision by this court had been overturned by the supreme court requiring a showing of effectiveness but nonetheless case decade plus later that comes up so i think our position is there is a logical and reasonable basis for saying mitigation effectiveness doesn't know you're saying o curiam decision in two thousand and nine is somehow on done i would not say and on your honor i would say there is some prior precedent which seems to me like with it every time if somebody tells me but i can quote this prior president i it's the last case out why you didn't do it and i fully understand your point your honor and i think again we're raising that point that the supreme court has made that statement not affecting this but nonetheless the structure of the i r s does provide for that evaluation of affecting this of mitigation by identifying what's and what unavoidable and that was exactly the approach taken in laguna greenbelt cited in our briefs as well where the court looked to that knowledge meant that there would be unavoidable impacts even after mitigation to as as a form of showing an evaluation of the effect in this of mitigation so it's enough to say the impacts will be unavoidable to excuse you from discussing ways to mitigate the impacts no your honor i think the the point is is that yes identifies impacts identifies then identifies mitigation and then basically is talking about residual unavoidable impacts not saying everything's unavoidable but it specifically identifies certain impacts that would be remaining even if you do the mitigation which effectively is describing effectiveness and again upheld by this coincidence if you want what you're saying is by identifying what you can't fix your every you've demonstrated the effectiveness of what you can fix correct again we're going to get a green dot i say point you to that case of upholding a similar type structure i say i'm almost out of time you were saying i'm not sure i understand i see i am out of time if there's any further questions judge fisher do you have any questions i'd like to cite two cases that i think maybe make the point better even then the port of the story of the hotel case the earlier case cited in that case sierra club the hotel involved another private plant and the court in that case b p a had contracted to provide power but without which the plant couldn't operate and by doing so by agreeing to supply the the the transmission it's so federalized the and tire project that it became major federal action never do that's why i asked before and and so i think it's important like to hear your response to this it seems to me that one when a federal agency provides power to a private  one of the environmental effects of providing the environmental effect of providing that power needs to be considered by the federal agency and that's part of a story and that's the previous case the point of the stories cites is is that same thing through when the federal agency agrees to transmit power from a private entity it would so i don't think any of us think there's a there's an environmental effect from the transmission so is it is the federal agency also responsible for the environmental effects of the evaluating connected actions or act actions that are all part of a single action as they are here in a single e i ask the federal the federal government becomes responsible for evaluating the impacts of those private of those private activities when they when they cannot exist independent of the others the laguna green belt case is another good one where there was only a federal exchange interchange off of i five but the entire project even though the the  most of the roadway was private had to be considered in the same yes and i see the amount of time thank you thank you we appreciate both arguments the case will now be submitted one five seven seven eight and we will be heard to the last case would you like a break with your weekend and we will take a short break thank you very much