in caroline county this location was selected specifically because it's already home to numerous other adding chicken operations though it's adjacent you high quality watts creek and the local chop take river and the downstream chesapeake bay are been in place now for several years you know the farm is an ongoing concern how do we even know that you know is there any evidence in the record that the bank that the lender would see in addition like another itself if the guarantee is vacated the lender has a strong financial interest you restoring the protection of the federal guarantee for the remaining majority of the loans to ration at the time of the complaint you were just two years into a fifteen year loan guarantee has a strong indication that is there any evidence that that the calculation for the bank is the same two years into the loan as at the outset when there is no no pharma no no ongoing business well your honor the lenders misses the point the question what the evidence said that can be considered at the complaint stage as is your allegations but when you get to the summary judgment luan holds but you have to prove the allegations standing and so to that doesn't answer the question the judge threw out rays which is where is the evidence as summary judgment that any of these scenarios that you're putting forward would possibly or probably come true well your honor we did not seek discovery in this case after early in the case chief judge how found that we had demonstrated redress ability based on the information in the on the basis of the allegations in the complaint but what about it's only just well your honor in this case we didn't think that discovery was necessary because the information in the record at the time  to rd parties past actions and their financial incentives in looking to when we would be likely to act in response to a government action and in this case under the circuits he's actually be enough here there are clear financial incentives  arguments and it has not provided any evidence to meet its burden of the cases and the court cannot grant any actual relief for mr hyde miss miss hines and i i will i will ask the department this as well but i guess i have a concern that this case might be moot under the recently enacted regulations right i mean those provide that loan guarantee is and specifically mention f s a loan guarantees as not being major guarantee and start a new nepa process that would not be an ongoing activity i think under the meeting of the new revised regulations or i guess what's your account of why it would be y and so those rules are whatever they are they're they're interesting but they're not binding on and on any particular agency and we recognize that that problem was c e q a long time ago  individual e minor actions here in the farm service agency did not conduct any meaningful cumulative impact review overlooking the existing concentration and expected future exemption of the areas just an industry and providing no actual analysis of the facilities incremental impact against this background regarding past and present actions the assessment makes clear that this entire project is premised on fostering chicken industry consolidation and the agency is trying to have it both ways by expressly relying on an hearing's existing concentration to define the project isn't needed and to reject alternatives such as other locations while ignoring the cumulative impacts of doing so  viewing load will ensure no significant impact but this court has established that assuming other agencies permanents will ensure no cumulative impact with no independent partner is arbitrary and capricious because relying wholly other agency standards would render its procedures superfluous court for the recently on the existence of permit requirements overseen by other yet another federal agency or state commenting authority cannot substitute for a proper arbitrary and reaches for an agency to rely on mitigation measures its reliance must be reasonable and that means that there must be some evidence and some analysis establishing that the measures will be effective in preventing significant impact in agencies on regulations further require that mitigation be practical and forcible and tailored to fit the specific needs of the action nonetheless the agency here relied on draft mitigation measures that were not well enough developed to determine they would practices that will be outlined in a nutrient management plan and conservation plan this new dream management plan in turn can include such open ended practices as identifying sites specific conservation practices so in effect this we agree that before she obtained a loan the farmer had an incentive to support the lenders application for a loan guarantee and without that guarantee she approved probably would not have gotten the loan and then might not have been  would nevertheless be likely to agree to new and for the farmer potentially costly mitigation measures things are of the guarantee itself doesn't get plant what it wants being it would change the risk allocation between the government and the lender but it wouldn't affect the validity of the loan unless one of two things were the case the st is that there's some kind of contract provision that the farmers reach to that would put something like that in effect and the other is if the agency itself has the legal authority to applications is just through out pointed out why would they why would the parties here are not a party and on parties the farmer and the lender agreed to start that process again especially for the farmer she has no incentive to do so since  there's only a downside that's in the offing for her because it's there's a likelihood that she would have to comply with new and potentially costly mitigation measures but she wouldn't get anything in her turn she already has the loan so there's no it's an executive order that jimmy carter president carter issued setting them up yes i i do recognize that like i said there is a it dispute about whether the new nie the regulations require f s a immediately to implement those restrictions about a loan guarantees or whether the agency is bound to know the ancient past that the government's position was that they were not going to so ultimately i think that that point is is not relevant here this is not a procedural injury standing argument in the sense that there are rd parties whose independent conduct is really where the focus is we've for the for the purpose of of them standing when it comes to getting what they it's not in conflict with the new need for them to do you know i have to interject that i recognize in talking about the validity of the c e q regulation of the binding effect that that there's some language in  supreme court case or case are cases saying that they're binding or they're mandatory or whatever but you know i kind of view that in the same way as if the court takes jurisdiction without considering the underlying problems with asserting jurisdiction point they just don't have the evidence it is a straight friend of pointed out there burn them for it with something showing why they could get redress and they haven't done that and we certainly agree that the relevant point time for that is when when they filed suit and or brief says exactly that and they've only selectively quoted it in their brief to suggest otherwise we've said all along that from the time they filed suit through today they don't have what it takes to well they're bound together in one sense but not in the sense that they all went through the loan guarantee process the st time that there's an executed loan guarantee and there's an execute on agreement that they're not bound in some sort of future sense they're not required to go forward and engage again in some renewed process here that process is hardly voluntary this is not as a district court i think thought it case where there's some sort of regulation in place this is simply a upon terry thing anything that happens in those  discussions that we've student agreement that what's binding on that on the parties is as a result of a contract not a regulation through turning to the merits i think there's a lot that's going on in the brief but there's really i think only one thing that you need to know and i just want to go back to a little bit about the redress ability question posed suppose the district court issued an order staying the effect holding that the that the loan guarantee was void but staying the effect of that until the parties until the environmental assessment was redone problem here is that there is nothing to suggest certainly nothing client is going to do the farmer would have any incentive to agree to find itself to potentially costly new mitigation measures when he gets nothing in return but they say they're for that and that assumes that there's going to be more costly mitigation methods well that's what i'm assuming that because i'm a procedural injury case  that the way to look at what the agency does is to just assume that the plaintiff gets kind of the best case result we suppose the best case to result in in an environmental impact or even assessment case is informational that the the agency namely the farm service agency will get more information before it again makes its decision i think  looking for information they have or what's an informational entry here they their point is that we either shut down the farm by bringing the suit or we at least get some kind of mitigation measures that's the redress that they're seeking they're not seeking additional information but even if even if the the assessment turned out to show that there's going to be massive pollution in the chesapeake bay as a result of this form that farm service agenc can still go forward it certainly can still go forward your honor the regulations that were in place at the time did encourage the agency to consider mitigation measures and so that's why and sort of putting our argument into finding out how exactly the agency might be able to resolve things and what the scope of that would be that the clearer point here is that there's just there's just nothing that that's in the record that shows that the farmer would have any incentive to do anything and that that's really all you need to now it all those other points are true and worth considering i think the easiest point here is just that last one and my in my opinion at least i've only got a couple minutes left so i want to quickly hit on the merits if that's alright with you sure i think the crucial point here is plaintiff is not renewed their hard look objection and so if the incremental impact if there is no incremental impact from the farm and in any of the areas that they're concerned about that puts an end to the inquiry and now i grant of course that  the agency didn't say that there would be zero impact and some kind of metaphysical certainty but i point the court to mina sink which said that when the project itself is expected to have minimal impacts no significant cumulative impact honor and i would say that there's two parts to the geographic analysis one is looking at the scope and looking for what kind of facts effects might be out there and the nd is actually determining where the effects are going to fall so when you play if there is complete these two points i think but when you think about it the consideration of all the stuff more probably was just a part of the agency's determination that in fact this farm  loan and then state that so that it would be protections in place for the waterway would you would you define for me what you are claiming is the harm to the members of your organization injuries environmental impact statements and environmental assessments that that they that the ultimate decision of the agency is is not up to an environmental impact statement and it's not up to an environmental assessment although they're designed to do is provide information to the agency on which to make its decision so they get the injury that you're defining doesn't seem to me to to to be connected to the purpose of an environmental impact statement the purpose is to give information to the s s a and and you as members your members interest seems to me would be that the agency want to have made a decision without having sufficient information well your hon