good morning your honors if it please the court the best way to introduce this case is to tell you that it's a city of phoenix v a where on steroids this case involves eighteen thousand square miles twenty one airports and countless millions of people in phoenix to hear word of this court found a common sense didn't allow a finding of no significant environmental impact when it involved what one airport and at six hundred ninety three percent increase and i'm sorry out of three hundred percent no increase in noise complaints here at six hundred ninety three percent huge project why is this important actually i'm not sure about that statistic i want to ask you  r we're told that there's this seven fold increase in complaints received by the city so you've los angeles yes but it's not also the case that in the order the f a a said by the way if you have any complaints don't send them to us send them to the city thousand nine hundred thirty six approximately complaints about noise and during that second before that period had received two thousand one hundred thirty six during that one year period twenty complaints for reasons that i as yet unexplained in any event why that is important is because this project was treated by the f a a as if it were a one airport fact that it was a major project that was treated as a one airport problem is that the strongest in other words if you want us to look at your most powerful argument is this one the failure of the f a a to use the proper model for a project of beef i want to hear your argument about that i really do but what do you do with the agencies argument that they did both tests and the results were basically say because when they did it it was twenty seventeen and if you will note there is no reference to the record where the public or decision makers for the public could make any assessment of the integrity of that twenty seven hundred studies have you pointed out in your brief any defects  and i take your point about that but it do you see any problems with what they did with what i'm sorry your honor with the use of the you you said what the public had had an opportunity to comment on the agency's conclusion that the use of the second be a technique yet that it that they that they both showed especially the same results no significant impact i would and i think your point that the public didn't have an opportunity coming i just ask whether you see any defects in it whether you've identified any defects in what the agency did there isn't you didn't provide that we don't know if there are defect or no defects that's the problem the whole thing is extra record that particular study is yes and so we had no opportunity to analyze it and find if there were any defects or if their conclusions were in fact correct but in any event even if we had been given that study in twenty seventeen it would have been to late because the project was already implemented by that time ok so their answer as i recall his the timing was such that nurse was appropriate that that march twelfth cutoff date for switching for instance certain aircraft which can be modeled within the confines of ours so they can use substitute and the f a a said ok go forward with nurse using those substitutes well that's right that's the fox guarding the henhouse isn't it because here's here's why that doesn't work number one they need a tie with their own government that is the fox invoking the exemption for water for approvals that are given well that's a little different those are two separate argument the exemptions which were supposedly done in advance were in fact done in twenty fifteen and twenty sixteen which was far along in the process by the time that they had already used nurse for three years when they should have been using a d t so those didn't say wait a minute you should have been to the office you should have been using a d j they should have said that because they didn't get the f a a tests that they got the approvals in advance in advance with inappropriate for a project of this scope the model itself was inappropriate but here is the reason all of us the lawyers who've been to law school learned in the first year what the essence of legal analysis is it's iraq issue rule analysis conclusion in order for there to be a real analysis there has to be a role and there has to be evidence correct to apply the rule here in technical analysis there has to be a model i either rule and data i see the evidence according to the f a a that data was not collected and input into the model ins use presumably not but frankly i'm not the technician on this case so i can't answer that question with specificity i can only say that when you start calibrating a model is when analysis begins under our own our own model of analysis of legal issues it's the same thing intriguing it's it starts on page forty five it's untitled deference to f a a technical determinations contravenes most basic policies and separation of powers you know that section o talking about that that was a section that that was drafted by by ms listen oh so do you not want me to ask you questions that i don't know ask you the question and then if you can't answer it we can to address is the fact that apart from the federal law requires that the f a a to protect people on the ground on if from the effects of the noise and emissions pollution the century of aviation act of two thousand and three otherwise known as vision one hundred specifically requires the f a a to consider to the greatest extent practicable the design of airport approach and departure flight paths that reduce exposure completed their their new publications and created no significant increase in noise but they haven't looked at the possibility that they could design approach and departure  flight routes that would reduce noise and what's your best authority for the proposition that when the f a a undertakes a project designed to improve aircraft efficiency which is what this was right that the best argument this was what's the best authority for the proposition that in doing that it has to in addition to making sure it doesn't increase noise it has to find ways to reduce noise the best rough assessed of your lies with the statute of the vision one hundred statute which because obviously the supreme court in in lockheed terminal case of the of burbank vs locking terminal said that that the f a a has to balance safety and efficiency with the protection of people on the ground from from the aviation noise and this so the consideration is is obviously matched have to be a balance with a with safety and efficiency certainly there will be cases where where the mile or something specifically in order to reduce the increase correct i believe that that that was what they said in the reply brief was that there would still be no significant increase in noise but there was no there was noise they they stated that they've looked at noise that they considered noise but they didn't look at the reduction of noise and that's it that's an important distinction because what congress mandated was that they they look at the reduction of ice and the this goes goes back to the the as i said the the lucky terminal case where there is there there must be a balance  between the protection of people on the ground and and the the safety and efficiency while the southern california metroplex project may comply with with need federal law goes beyond and requires that the f a a to at the very very least consider designing flight routes they're reducing aviation noise in the missions in order to protect the people on the ground because that the f a a has failed and this is an instance to do with federal law is it your position that even if there had been even if the f a a found there would be literally no increase in the ways or emotions that they would still have failed in their obligation to consider sort of looking for reductions put that way yes it would be the the the the important thing here is that they consider the reduction in noise that made they use some kind of metric out of which which they had available to them to show to show that that that there would be that that they considered that they looked at it it wasn't cracked well they did the balancing pursue this for just a second so i want to ask you about the statute so that the next gen program has the seven goals right that that that's in that the congress adopted for the crate and one of them as you point out is good morning your honors and may please the court my name is lanie fattened represent the federal aviation administration in the federal response i'd like to begin with vision one hundred and congress's requirement that the agency consider to the extent practical effects of noise impacts on people and design new flight routes this project always did have that in mind so the team report explains that at the very beginning that was considered a major constraint on the design of the project i can see that it j ninety eight ninety nine the f a a could have radically reimagined the airspace in southern california signing only the most direct routes possible without consideration of existing land uses that's not at all as project was project kept flights in historic flight corridors and rewrote the procedures to take advantage of automated flight systems s technology and all of the modern advancements in the way the procedures can be designed and flung not working at ninety eight ninety nine can you point to your so tertian s run at ninety eight this is the study team's report about how they developed the original iterations of this project in the middle of the page section three point three sumptuous industry explains that it was always important when designing possible procedures to look at for introduction into a project to avoid any that would have significant environmental impacts which were noise and air pollution and then on the next page they explained that the way to do it you're you're you're missing the argument here which is not that you didn't try to avoid to to alternative ways to increase operational efficiency one of which would actually reduce emissions noise or pollutants and the other which would not would you not be obliged to take the wee one that reduces emissions soon again assuming operational efficiency is unchanged if they were otherwise identical i think you would yes because it would be profitable t ok so now when they're not exactly the same what we have is you have alternatives and you look for the one that that increased emissions the least but you didn't ask whether there were things you could do to reduce emissions below the status quo right i still think that's that's consistent with the statute i mean there is a difference between asking whether we can do things that would use noise and environmental impacts and then proposing  not stated that explicitly in the reported decision we cited in our brief the records of the study team as they were considering various proposals where the agency had rejected certain proposals because they wouldn't they wouldn't meet the safety and efficiency requirements and the white paper that accompanies the final environmental assessment addresses specific comments that asked for specific changes to affect the community noise and some of those could be adopted and some of them couldn't and so there are there is a discussion in that paper about why it is that some moves noise or would have shifted more likely the noise to another community was unsafe for one reason or another it would mix with traffic from another airport it would be in a different classification airspace there are various reasons why it couldn't be done but had it been done would have actually reduced i think there were some proposals that were thought to have actually reduced noise yes then we're fine but i'm afraid i don't have the record citation for me it's mentioned in our brief as the white paper that accompanies the final environmental assessment is discussed in complex to allow the number of operations that come in and out of there's millions a year to continue and also to do so in a way that really that completely reduces noise impacts into oakley reduces though that's something well i  mean i mean i understand there are even any reduction was or is the goal i mean there are areas where there were reductions and there are areas where there were increases and i understand the argument to be that the agency has to totally has to result in a in a net decrease in noise overall well consider whether it can consider whether panels that's the house i think the record amply demonstrates that it was the practicability if that was considered and if the agency did what it what it could to accommodate those concerns and that's all the statutor i turning i suppose to the new book and your friends on the other side so i'll start and notify your friends on the other side as well yes of course course ok turning to the use of the noise integrated routing system  honour's correctly pointed out that was something provided for in the guidance memo starting in march two thousand and twelve except for into situations one is where you've already begun his analysis which is project hat and the other is where you receive advance written approval from the office of environment and energy which i eventually the f a a did get before its decision was made which is what the timing is necessary comply with that the overarching all of this is that repeatedly today was described as a regulatory requirement which is an accurate this is an internal a guidance and in the asking its own internal components to use the it a t t going forward from a certain date for certain projects but there wasn't any legal violation at issue here and as you owners pointed out nor was there any prejudicial harm accompanying it at the three hundred forty two thousand individual grid points where noise was individually measured three of them turned out to be different when this project was says except for advance written approval has been granted to use an equipment methodology computer model and doesn't specify the time so using the methodology that's what has to be in advance of using the methodology that there is one reading yes thousand and eleven to screen these proposed procedures to see if they would comply with the constraints of the project one of which was to always avoid the possibility of significant environmental impacts and that's a clearly defined threshold established by federal regulation that's screen is overly simplistic but the record explains you see this at j sixty six that is simplistic in the sense that it always tries to capture the worst case scenario noise screen is a rough way to measure noise it assumes the worst so you're never going to accidently miss a potentially significant impact and then if you get to that point then you can do a more detailed analysis and learn more about it but the noise screen is a form of noise analysis it does if it uses a computer model to tell you what the noise is going to be that's what the point of all of th efforts are and those indicated the proposal turn a default would not cause a significant noise increase which was borne out to be true re i suppose that's that's right yes i mean it hadn't been argued that it is specifically but that is a statute that is directed at the f a a and so if you think that term is terms ambiguous i suppose chevron deference might apply in that circumstance mitigated i suppose by practicability we haven't had we haven't argued that there is any ambiguity that requires it's a difference in that context and there is one in this it i misunderstood your point is it your argument then that the agency did take  into account to the extent practical yes ok yes you're going to give us that site right but yes your honor i mean i think in addition i mean i think that the page study team report i cited that day ninety eight ninety nine i think does indicate that that one of the guiding principles at the very beginning of the process was avoiding significant noise impacts which means that you're thinking about well no that's that's avoiding increasing noise their argument is you have an affirmative duty to reduce its the us it is that that the obligation is different i mean i think the obligation to consider noise to the extent practical is different then the obligation to improve safety which is mandatory there phrase in different ways and so  less because that the way that the requirement is phrased requires consideration and doesn't mandate a reduction in the way the missions have suggested i'm simply asking therefore you have to point to something in the record where the agency three yes it's one of the end but they're not the only one described in that document there are other proposals considered in that document as well and some were accepted and some could not be accepted and all of them were proposals designed to reduce noise impacts on a specific community  and some of them were inconsistent with design criteria and safety goals and some of them were implemented as an example of the agency taking the public comment process quite seriously and adjusting its procedures in response to those comments and concerns a and then you couldn't use the c and the l therefore to do a term of that but that struck me like so it is something like saying well the standards are all in english units so we couldn't use meters we had to use yards but of course you could use meters and then translate them into yards but sure i think i think it could have been possible to express things in terms of both metrics but since you would ultimately have to do the conversion back to d n l in any event it didn't seem necessary to use the part one fifty so you we wouldn't convert them directly you'd have to produce two different values to say here is the d l value here is the c n d of value right then everyone would just be confused as to which one they should look at and what they should know about the fact that there are different kinds of use yards and readers for a moment that it's going to drain you translate it back into yards one hundred yards becomes one hundred ten years but you're still measuring the overall linear value of the object is as long as it is and you can express that in different now doesn't know because there's a fictitious length added to it when you see on the right there's an arbitrary five or ten point to do shit right exactly in that model but it's added to a a twenty four hour average it's not added to the like absolute value of then on you know you add to whichever ones of those events occur during certain hours of the evening and then you average the total and also these values are because they're decimals they're logarithmic which has some complication in the math and so i i don't believe the document is in the joint appendix but the the relevant citation is in our briefing page thirty six of the top and the airports desk reference produced by f a a is the order fifty fifty point four b which was the one in effect at the time page thirty six yes your hon that for state funded projects or state involved projects quote f a a accepts the see any l when a state requires that metric to assess noise effects we're in the page where you think this is the top the top two lines power really in california it's because of the sky well it's the it's not a might be that i don't know the answer that question i'm not authorized to answer it but i will say this nothing about this project required the participation of the government of california or compliance with this own state laws and regulations i the location there here's what's s for example in the context of noise and earth planes and helicopters noise sensitive areas include such areas within the d n l sixty five nice contour program in california  was ninety three ok before i let me just tell you what i do know about it i don't i don't want to to speculate about that it was never proposed that the noise conjurers used for this project should have been revised from what are provided in part one fifty based for the agency's new purposes and also for many other purposes for federal funding for noise negation projects and cetera and so to the extent that the agency might consider see any at all in california and they can't be can't modify that regulatory requirement but it certainly could take those into consideration you could measure the noise in different ways to determine what it was sensitive areas might lie but there's what's missing from this case even accepting your honor's interpretation of  a cumulative impact analysis in california you have to in some way compare apples and oranges see any l is not the same as d n o therefore we're not getting an accurate cumulative impact if there were any cumulative impact analysis in this document for no is he would have to you see any out water to properly analyze commutative impact that being said one last thing a noise analysis the answer is in the record the f a a has taken the position that that screening tool is a quote dramatic simplification of what a full and detailed noise analysis would require that's a j a sixty six yes but i thought if i understood also for the government it's crude but it's it's meant to be over inclusive so that you don't so that doesn't miss  things didn't turn i think missing things and analyzing things in a correct way are two entirely different matter question is whether yes i'm saying is the screening i thought was used to see whether where analysis is needed correct and so it's meant to be over and because of that i can't say your honor i can only say it's not analysis from the only exception in the rules is for analysis beginning before twenty twel and what if i did not what would i think your response on when you were when we were discussing this earlier mr mcfadden alludes with was that ratification isn't enough ratification is not enough that is respect to f a a actions that are inconsistent with the statute and with its own interpretation of the i'm going to attach what about the case law in our circuit which says we are a great deal of deference to the of ambiguous statutory provisions in this case the f a a interpreted as established a regulation requiring the use of the a d t model it used nurse instead that was an action inconsistent with its own interpretation of the law and its requirements they're for just as the judge course it just dissent covers the essays action in this case therefore that the action was was ok by the by the f a standers the other point that i'd like to raise is that fear of the goals that we're talking about that we find in vision one hundred seven goals refer to the gen air transportation system and and it refers to the the system in general rather than specifically the development of flight paths of number seven the one that we're talking about about reduction of understanding ok thank you thank you all the cases submit