good morning your honors nathan matthews on behalf of petitioners i'll try not to repeat the background of this case that was covered in the prior argument but i would like to reiterate that the mountain valley pipeline will be the largest pipeline of  are vulnerable at forest edges or out in the open and these species do best when provided with thousands of acres of contiguous deep dark forest habitat the jefferson national forest plan the forest service is twenty twelve planning most obviously cutting trees in the pipeline right away will impact that habitat but the record also clearly establishes the mechanisms for two additional kinds of impacts first the creation of edge of facts where the forest on either side of the edge despite recognising that mechanism the environmental impact statement here provides no one to us whatsoever of the extent to which that impact could be reduced by co locating the pipeline with existing disturbance so basically putting it where there are already factors for the us to recognize that twenty two thousand acres of new edge are going to be created by the pipeline and many times the amount of acreage directly impacted but then to provide no analysis of the extent to which that it that he impact us also recognizes that because the clearing for the right of way and the newly created forest edge on either side of the pipeline are not interior forest that these regions can act as a barrier to migration of it forest interior species  actually be how big of a reduction in high quality interior forest habitat are you going to see because of this pipeline and you get to recognize that an important effect is important in that one of the functions of the jeffers the national forest is to provide  kind of large block of habitat and then to say nothing about the actual effects of the project as you hear on that resource falls short of a hard look at need to requires  location avoids those impacts on surrounding forests here we argue that the bureau of land management violated both the forest plan provisions of the fourth time that are not amended here and the mineral easing act by entirely ignoring the commands to co locate where practical and of the record does not demonstrate that co location would be impractical here d environmental impact statement demonstrates forest service this decision was arbitrary because it relied on a number that by the forest service is own image mission was wrong the forest service submitted comments on the sedimentation analysis criticizing the estimate of how well mitigation would work for service said that maybe what you can do is determine in a test what ideal circumstances but in practice we have seen that implementation is imperfect and it imperfect implementation really matters and the forest service recommended a much lower range of  r services when bringing its own expertise to bear concluded that it was essential that the analysis of aquatic impacts and of impacts the soil consider the role of imperfect implementation in practice there is no explanation in the record for the implicit about face where this analysis of the forest service had criticized as is wrong was then incorporated into the final environmental impact  analysis we said when considering sedimentation you will have to consider implementation a practice failure to consider as you would all rendered the four services conclusions regarding sediment arbitrary although that respondents argue that effectiveness there is no indication on the record that the agencies actually considered those materials and those if insofar as a court does consider those materials there's nothing in there that fundamentally changes the arc and there's no analysis in those extra materials about effectiveness in practice it's just some additional data regarding arguments that have already been made and found wanting by the forest service in that time i have remaining i'll switch to to about the four services compliance with the twelve forest planning rule the planning rule requires consideration of whether amendments to a forest plan are directly related to substantive  requirements of that planning role and direct relation is not just a question of whether there's going to be an adverse effect on resources but also just whether the purpose of the amendment relates to the purpose of the protective a purpose that overlaps with the purpose of the final provisions regarding soils in aquatic resources that for services interpretation is contrary to the plain language of the statute and were numerous examples of what would constitute a direct relationship and that interpretation offered contemporaneous with the rule after notice and comment is the interpretation that should control that there is no ground for the court or the forest service to retreat from that providing additional measures to ensure that restoration is the paint and here there is no analysis anywhere in the record of whether soils and aquatic habitat in the region of the mountain valley pipeline in the jefferson national forest are degraded in a way that wants restoration  nor is there any discussion of whether the matabele pipeline would be consistent with or would preclude future restoration if if that's necessary i guess i'll last to touch on the argument about remedy in this the morning kevin mccardell for the federal response and made pleas court i'll start first with the question of interior forest impacts the main statute at issue for that for that claim is the national environmental policy act so the question the courts faced with is what did the agency have to do to comply with the need and the deferential arbitrary and capricious standard of review with respect to interior forest impacts what they had to do was disclose sufficient information about the impacts of their specific actions to allow from an informed decision making that's it and there's no question that the agencies did that in this case it's important to keep in mind the scale of the action that's at issue mr matthews began by talking about the mountain valley pipeline as a whole but this case isn't about the mountain valley pipeline as a whole ferk as you've heard earlier today authorized mountain valley pipeline its decision is being challenged in the d c circuit including underneath the actions  at issue here represent an important but small part of the whole pipeline b l m under the mineral releasing act was charged with deciding whether to grant a three point six mile right of way for the pipeline over the jefferson national forest the forest service was charged with deciding under the national forest management act whether to amend its plan to accommodate the right of way comedy the pipeline and the right away itself is requires clearing a total of eighty three acres of forest within the seven hundred twenty three thousand acre jefferson national forest that's one one hundredth of one percent fifty acres are for clearing the pipeline and thirty acres are for expanding existing roads there's no new roads no above ground facilities the pipeline after it's installed and buried the construction card will be rehabilitated and most of the corridor will regenerate to forest over time so underneath the agencies had to disclose sufficient information to allow for informed decision making about the consequences of clearing one one hundredth of a percent of the national forest and they met that standard easily disclosed that the right of way would transect three core forest areas in virginia and what will happen as a result the e i a s addresses that a well as well it says interior blocks of forest will be fragmented and that three hundred feet on each side of the car will be converted to edge habitat the e i a s goes a step further and addresses what are the environmental consequences of that fragmentation and conversion to edge and it explains the consequences for vegetation and for wildlife it explains for example that some species may benefit by having movement carders in the forest while other species may be harmed because they depend on large blocks of contiguous for habitat and the interesting thing to note is that petitioners in their briefs they never identify a specific environmental consequence of fragmentation and edge of facts on wildlife or vegetation that the agencies fail to consider in fact their brief sites primarily to the e i a s to explain what happens as a result of fragmentation and conversion to edge demonstrating that the agencies appropriately consider the issue the one argument they try to hang their h acres within the jefferson national forest would be cleared and it would result in a conversion of three hundred thirty six acres of adjacent interior far as habitat to edge e i a s also incorporated by reference mountain valley pipelines migratory bird conservation land not as a substitute for analysis that allegedly was missing from the past but as a supplement to that analysis the migratory bird conservation plan provides quantitative data that shows that even after construction the three core areas transected by the right of way will still provide large quantities of continuous habitat that would serve even the most sensitive interior forest wildlife so with or without  migratory bird conservation plan the has provided sufficient information for the forest service and the public to understand the consequences on interior forests of clearing one one hundredth of a percent of the whole forest area the other aspect of interior far is that the plaintiff's challenge is the alternatives analysis where plaintiffs claim that petitioners claim that the i r s provided no information but that's just not true the last provided at least two important points of comparison they explained that the alternative national forest crossings that were evaluated would cross the forest or a portion of it along existing rights of way they explain what that meant for interior forest it means you have to expand the existing carter and shift the existing forest edge to facilitate the installation of the pipeline but you avoid converting new you avoid new fragmentation and the creation of new edge that's a commonsense principle that was clearly explained in the past and it allows for a meaningful comparison of alternatives which is all that he requires as to the alternatives more broadly the the e s provided the amount of interior forest acreage that would be crossed for nearly all the target alternatives i say nearly because for one it didn't provide that figure hybrid want to pay but that alternative was simply a combination of the proposed action and alternative one and so the reader could understand the reader the past that hybrid want to have provided impacted less interior forests of an alternative one which maximize but i'm sorry more than alternative one and less than the proposed action now the petition was will come back and say but that's that's just addresses direct effects on interior farce but elsewhere the e o s explained that indirect effects are proportional to the direct effects for instance i mentioned earlier that when you build a carter through interior forest you will be also not only will you be clearing the forest for the corridor but you'll be converting three hundred feet on either side to edge so the agency decision makers and the public could understand from the figure in the past about the total interior forest acreage crossed you know what the overall impacts would be and that the indirect effects on interior forests would be proportional to the direct x so that facilitates a meaningful comparison and inform decision making which is all that need to requires don't require to explain why it was rejected a comparison of alternatives and concluded that none of the alternative routes provide a significant environmental advantage over the proposed route and they explained their reasoning for doing that the the petitioners say that and by the way each of the petitioners suggests that we the agencies ignored the presumption in the mineral leasing act that co location reduces impacts including impacts on forest but that's not correct the agencies recognize that presumption right up front at the beginning of their analysis and they and they also recognize that impacts on interior forests were a key criteria in the comparison that your honor just mentioned the comparison of alternatives but there are other key considerations one of which was the amount of slope terrain that we would be cross the agencies explained look when you're crossing slope terrain you are creating difficulties obstacles to safe construction and you're increasing the risk of erosion and debris flows so for those reasons we're going to give the construction along sloped areas equal consideration to forest impacts and then they went through all the pros and cons of the different alternatives and ultimately exercised the judgment that none for bided a significant environmental advantage and the of the plaintiffs want the court to second guess the petitions want the court to second guess that judgment but it's a judgment that belongs to the agencies to make and it can't be reduced to some sort of mathematical comparison you know you can't reduce impacts on land owners impacts on forests impacts on sloped areas you know with right i think the basic flaw in plan of argument on that is that it's based entirely on the forest services initial comments on the draft hydrological analysis but ignores  would be seventy nine percent effective at containing soils and the forest service suggests that that seems a little optimistic and it's based on laboratory tests you know you should take more of a worst case approach rather than a best case which is what you appear to be taking and they also raised a concern about implementation they said the success of mitigation measures to depends on the proper implementation and you need to address that so p responded they sent a letter to the forest service with a revised analysis additional information and they said seventy nine percent that we're using is not a best case scenario it represents the median the average a range of tests documented in a study the relevant study is not strictly speaking a laboratory study it's a field scale study designed to simulate real world conditions and they reminded the forest service that the the the project is subject to strict monitoring by both federal and state agencies which would ensure a successful implementation of the control measures and they also mentioned that the test that they were relying on for the seventy nine percent figure focus exclusively on one sediment control measure at a time whereas m v p would be improvement implementing a suite of control measures so there was a statement made that well that information was provided shortly before two days before the forest service issued its decision and that might not be a direct quote but in fact it was provided months for the forest service made its decision it was sent in june two thousand and seventeen directly to the forest service several months before the forest service made its final decision to adopt the eos as its need to document so that materials properly before the court part of the administrative record  service position is that the purpose element doesn't apply here because the purpose the purpose pran of the test for directly related illness is implicated only when the forest service is changing plan direction for resource management so for instance one of those standards that is at issue here required eighty five percent of soils to be maintained over that the project area now suppose for example that requirement for soils in the two thousand and two playing role i say i'm running out of time so i continue so i thank you but here we have the forest service wasn't changing plan direction plan direction remained as it was they were accepting one small project from existing plan direction and so in that scenario the forest service properly applied the effects test of the directly relate relatedness inquiry and also i would add this issue ultimately doesn't matter because even if the subset of requirements in the two thousand and twelve rule for soils and water resources did apply the amendment complied with those requirements because all that they require is that the amendment include components to maintain or restore there were changes made that one position in june different position in december and the reports can you explain why there was a change is your honor referring to the sedimentation or into the forest service june fifth two thousand and that the amendments were directly related to the regulation that in december they change their mind and say no they're not so what is the explanation well that was a draft notice and designed to solicit comments on the issue and then the forest service completed it analysis and documented in the final decision why the amendments would not have a substantial adverse effect on or substantial lessening of protections for so oil and water resources so that explanation of the the amendments aren't directly related documents the reasons for the apparent change of position although that was only a preliminary document the one the forest service relied on the housing logical study done mountain valley right correct develop that mountain valley darrelle developed in conjunction with the forest service and b l m what is the forest service obligation to protect the citizens of we manage things in terms of is is is forest and natural resources correct correct but your honor i would submit that this back and forth between the agencies and the p document in the record shows that the forest service just didn't blindly accept what m v p revised and provided they scrutinize the figures and only accepted the figures after m v p provided additional information so that's exactly the type of back and forth that  a s included a draft an earlier draft of the hydrologic analysis but it included the same two estimates was that a mistake i think the forest service should have referenced the most up to date version but the same estimates are in both versions the only piece of the seventy nine percent estimate that we've been discussing and the ten percent of impact threshold which is the other one both of those were in the draft and like i said that that process that back and forth shows that the forest service scrutinized and the piece numbers didn't just accept all right thank you  the morning and may please the court tray simply for the intervenor mountain valley pipeline i'd like to start by making just an observation about the some law that governs the bulk of the  claims each of the petitioners claims here are governed by a right not each of them most of the claims arise under the national environmental policy act and the concern the depth of the analysis about impacts the environment the evaluation of alternatives and this court in the impacts the depth of the agency's analysis is ultimately governed by a rule of reason that gives the agency's substantial discretion to determine the usefulness of additional information that's from the supreme court in the public citizen case this court has referred to the process as a delicate balancing act and it's webster decision there's always the ability to provide an additional analysis and additional calculation where to draw the line is ultimately a matter that's left to the agency's discretion and that's not just this court that's the the view of the d c circuit in the coalition on sensible transportation case and the second principle that is reflected in the case law certainly in this court's decision  webster and in the court's decision in american white water is that the court's job in reviewing an environmental impact statement is not to flyspeck it instead the court is to take a holistic view of what the agency has done to assess environmental impact and examine the various components of the agency's environmental analysis to determine on the whole whether the agency has conducted the required or look and finally the court should be most deferential when evaluating matters that are within the agency's area of scientific and technical expertise now with respect to the hydrologic analysis which was the focus of questions to mr mcardle just now it's quite clear that the forest service did take a look at the sedimentation effects it did not accept blindly what my client had provided on that it asked the hard questions it demanded the difficult answers that i have a question in your client met with the fourth nervous about this this report  and that they were quote concerned that lowering the containment value from seventy nine percent to forty eight percent as was recommended in the forest service comment on the sentiment analysis would have ramifications for the entire brief they were discussing basically that the the competing view about the efficacy of sedimentation and some of the problems with accepting the lower figure as of the correct one and provide with the ramifications to the entire project  question because based on the information provided by mountain valley pipeline it was demonstrated that that lower figure was not the correct one that instead the higher figure was instead of a much more accurate depiction of real world heart alternatives and it should be noted that incorrect and so then what would the ramifications well if it undermine the ramifications as they were explaining it would be to challenge basic practice for dealing with construction related impacts very similar to the ones that we were discussing in the previous case with respect to virginia it's worth noting as well that as this process is unfolding with the forest service as mr mcardle has noted the these very very questions about the efficacy of sedimentation and erosion controls are going through analysis at the state level and at the end of that process as reflected in the record in that case though those measures that were imposed were better than best they they went beyond what had been done previously and address the very concerns here hydrologic analysis what we don't have here is an about face we have instead an agency asking the hard question getting the answer and making a fully informed decision at the end of the process so we don't we're not in the be a fair that's that's a fair position to judge gregory but this is part of the robust back and forth where the agency is asking the hard questions you're going to have an analysis here and ultimately the agency reaches the decision that's wrong and that's and that's i'm sorry i'm missing the question has really not explained even you know what it is well your honor i think that you're asking there for the agency to do one year you're this that would be a challenge to the agencies methodology and evaluating environmental impacts and this court has noted that the agency did that it was not ok evaluated that they received the additional information and realized that their original predilection was incorrect and that's what agencies do when they're asked when they're asking the challenging questions and that's exactly what happened here and that's exactly why the agencies interpretation of its own regulations under our and so and that's what they what they've done here and what they've provided that interpretation within the regulations itself should also read the regulations as a whole specifically the  provision that talks about purpose and that's what really the petitioners here hang their hat on when it comes to the that the trigger for the forest planning rule amendments twenty twelve rule they focus on the purpose trigger and their definition of purpose is way too broad and you don't have to take my word for it you can look at the regulations themselves section two nineteen b one point thirteen b one talks about for projects specific amendments like what we have here how you go lessening or lessening of protections and in light of all of the mitigation measures that were and place by december when the plan of direction a plan a development was was issued and finalized and the and the  was issued in light of all of those protections they concluded there were not be a substantial adverse of environmental effect or a lessening of protections and therefore the rule was not triggered and let's not lose sight of the key point here with respect to the twenty twelve planning rule and that is that even if it respect to mountain valley pipeline itself there are the mitigation measures that are reflected and in the plan of development i've gone way over my time there further questions no thank you so much matthews you have some time between representatives amount valley in the forest service prior to submission of the june twenty first new materials i believe but but as you alluded to the mit minutes of those meetings reflect nothing but skepticism from the forest service employees and staff at every time about whether or not the higher number was in fact appropriate there's no indication in those meeting minutes whether the ones that we cited in our brief or the additional meeting minutes can be found in the the full record  there's no such discussion of forest service staff ever agreeing to or explaining that they've had their minds changed there is nothing in the record from the forest service discussing a reason for adopting the seventy nine percent figure rather than the forty eight percent figure and i'd like to clarify that in the comments the forest service submitted about the earlier draft of the hydrologic analysis for service recommended forty eight percent as an upper bound force or as was not saying that that was the most sediment is going to be delivered to the waterways and so if you reduce the estimate of mitigation effectiveness resulting in say two or three times as much sediment reaching the waterway then your analysis of whether or not the sediment load is going to impact those species is called into question has to be redone to see whether tripling the sediment load is going to impact those species so there are many different parts of the analysis of environmental impacts of the project both underneath and under other substantive limits such as the never had an opportunity to comment on that material as well which is just a further reason why the agencies are precluded from relying on that material turning to the question about the choice of alternatives in the agency's obligation to explain why it picked one alternative over another those alternatives requires a discussion of the extent of the types of impacts that you can't say the purely qualitative discussion of impacts the entire forest and impacts the karst whether they're going to cancel each other out without saying how big of an impact they're going to be into  and how big would the impact to say cars resources be from any one of these alternatives and so the rule of reason requires analysis commensurate with the importance of the issue to the agency decision making and here where the agency's rejection of these alternatives was essentially predicated on the view that benefits the alternatives would have to reducing interior force impacts were not big enough to outweigh any drawbacks of these alternatives you needed to say how big those impacts were before you twenty sixth amendment about deciding whether or not an amendment is or is not directly related the only way that those amendments and provisions of two nine hundred thirteen refer to the weather in a minute is pro or not have to do with with what you do once you determine that an amendment is directly related whether an amendment is products specific or not doesn't come into play at the threshold inquiry of whether it is directly related to a substantive provision or not  and the agency records of decision that came afterwards did not explicitly discuss the issue that we've identified here all of the arguments that we've seen from respondents are saying well we sort of implicitly got it this way or this other material that may or may not have been cited in the e i a s spoke to that concern and those arguments about other material in the record and implicit consideration are inappropriate in a case like this where the issue is the  to inform the public and to demonstrate that the decision makers themselves seriously grappled with the environmental impacts of what is going to the largest pipeline to ever cross the jefferson national forest i believe any national forest and it there especially going to implicit consideration are especially inappropriate here where the impacts really speak to the core values protected by the national forest the core values protected by the forest plan you know these are not fly specks about some sort of ancillary issue which is tangential to the co