requiring the texas department of criminal justice to supply alternate water to the inmates at the pac unit specifically the district court erred by holding that a risk that in itself defined as minute and slight could be considered substantial risk within the meaning of the eighth amendment and further erred by holding that prison officials could be deliberately indifferent despite the fact that they have consulted with and follow the advice from the experts at the empowered environmental regulatory agency in their state these two notions are fundamentally incompatible with this court's at the moment president and a request that this court reverse before i delve into the merits of the eighth amendment issue i'd first like to address the jurisdictional issue that has come about due to the plaintiff's conscious decision in this case not to extend the preliminary injunction even though the very conditions that they complained of are still present on the unit conditions that they complained created a life threatening emergency the defendants in this t t c j in this case can sense that this case is capable of repetition yet evading review and that is an appropriate exception to the movement's doctrine that warrants this court deciding this issue on the merits and that's because  operates one hundred prisons over one hundred prisons across the state of texas each with their own different water supply and water system and there are issues that are reasonably likely and virtually certain to occur in the future in any one of those systems capable of repetition in riveting review standard what's your best character well i would cite two catholic leadership coalition of texas versus race men in which this court held that there are no didn't have to be a certainty that the issue's going to arise again there has to be a reasonable likelihood and we do see that in actually the record in this case after the district court entered its preliminary injunction inmates at another prison that's even outside the jurisdiction of the southern district rode into the judge in this case and said we should be entitled to bottled water as well but actually the documents they submitted to the district court confirm exactly what happened there which was in two thousand and fifteen there was a temporary collar form sample that was resolved in a matter of weeks and never reached acute levels and it resolved quickly the question of whether prison officials have a duty under the eighth amendment to supply alternate water even where the regulatory agencies tell them they don't need to would have arisen in that case just as it's arisen here and it would escape review for any one of three reasons first that issue might resolve itself or it might be resolved very quickly just as it was in the instance that we see in the record or it could be because if there is rule of law is somehow cabined into the summer months then we see a situation where the summer months are going to expire the injunction will escape review just as it's doing here a t the ninety day provision to the limit on injunctions in the p l r a is also another factor that can leave these issues to arise and dissolve quickly before it could escape review and the notion that prison officials can be held a liberally indifferent even when they're following the advice of the texas commission on environmental quality which is specifically said you do not need to seek an alternate water source this is not an emergency is so completely foreign to this court's precedent i think every prison official in the fifth circuit would have believed they're doing their duty if they're following the advice of the regulators in their area it's for that reason had similar reasons that this case also applies for the collateral consequences exception and under that exception if there is a substantial question about the rights of the parties moving forward even if the the actual issues been mooted the court can have jurisdiction to go ahead and decide that when it's worthwhile to do so to two for the parties to gain clarity of their and so the rule of law that's created by the district court even if it's limited to the pack unit will provide that same level of uncertainty in and clarity between inmates in general and the prison system in general i'm goes i'm sure you can find different kinds of different levels of different minerals in a number of the different units absolutely around and there's a huge number of elements that are regulated by the e p a and just the fact that the water system is out of compliance with one would under the district court's holding trigger a duty to provide alternate water even though the regulatory officials aren't advising that it's necessary and so in that in that way it is that uncertainty that's in the law that's been created by the district court's opinion is a collateral consequence and that would justify this court hearing the case but in the alternative to those two tedious objection tunes that it would be entitled to a vacate or here due to the fact that the injunction expiring or the mootness that's arisen here is not due to their own making and that stems from the supreme court's holding in months where that was affirmed by the supreme court in u s bancorp v bottom up partnership in which the supreme court held that if  the by the eff by the actions on the other side and that's what we see in this case whether it's due to the affirmative action by the plaintiffs or whether it's due to i mean that's what's so crazy about this case is your new system is going into effect in february that yes that's what and if the new system were not going into effect you would still be in compliance with e p a rules or at least no danger but they have had to extend the injunction they're just they're willing to subject their plaintiffs to a risk for the next four months because they know that relief is in sight well i don't think it could be overlooked that the plaintiffs have a motion for one point four million dollars in attorney's fees pending in the district court base pacifically on grand and the grant of this injunction and saw i'll leave it to my colleagues on the other side to answer as to why they were not want to seek to injure and sting the injunction even where they've claimed the water is literally poisoning them but the collateral i'm sorry under the vacate a rule t v c j would be entitled to a vacate or because it is not their actions that have mooted this case whether it's due to the passage of time and circumstances j undertook to fix this problem long before this case was even contemplated so there is actually evidence on the record that removing these types of low levels of arsenic is a very difficult matter from an engineering perspective and to try to number of things over the years to get the system to be in compliance that haven't quite gotten us there but the ultimate solution will come in this filtration system and it was the start of the system put in in two thousand and seven right yes you're out of there was in under modification  and just when ever since they attempted to troubleshoot it they tried to tweak it in different ways one that couldn't get that it got the water just above ten they considered other options like drilling new wells like tapping into the city and that was so water which the city denied so t c g has been working to fix this problem but turning to the eighth amendment analysis the supreme court's holding and helen vs mckenney defines what the inquiry is in cases dealing with an environmental contaminant in the context of the eighth amendment and what the supreme court held in helling was that there has to be three showings to show an eighth amendment first there has to be a scientific and statistical inquiry into the harm and the likelihood that it will occur there has to be a showing that that risk it's defined in the first part of the inquiry is one that our society considers so grave that it would not prohibit exposing to anyone willingly and their house has to be a showing that the prison officials ha been deliberately indifferent and we see that the evidence here negates all three of those factors in terms of the scientific and statistical inquiry the district court here at dr the risk assessment of the defense expert dr heidi boyce and  clarity she's actually not with the texas commission on environmental quality she's with a different state agency the department of state all services and she calculated the possible risk due to the arsenic levels that are present at the packet and what she determined was even assuming a number of worst case possible scenarios over a two year exposure period she calculated that it could theoretically cause three point four cases of cancer in a population of one hundred thousand people to numerically differently that's all i want to just just under a one in thirty thousand chance and in terms of the scientific and statistical inquiry that the supreme court prescribed hellene there is no authority that i've been able to identify or that the pla identified that such a low level of risk requires action under the eighth amendment to abate that risk it's simply too remote and a good reference point for that comes in the environmental tobacco smoke cases where we see routinely what side it is a surgeon general's warning and a study that showed in environmental tobacco smoke you have a twenty to thirty percent increase in getting cancer a one in thirty thousand chance translates into point zero zero three four so in context we see this that level of risk is below anything this this court has ever sustained in addition the contemporary standards of decency here do not call for alternate water and that's because there are hundreds of water systems across the country that are still above the e p a standard of ten parts per billion yet no regulatory agency and no court has ever ordered any of those systems to provide bottled water and that's why the district court's order here stands is such a complete outlier to what any other entity has held there's another fact that's relevant in terms of the contemporary standards of decency and that's when the e p a first announced it was changing the standard from fifty parts per billion to ten parts per billion it also announced that it would be providing up to fourteen years of extensions for systems to come into compliance with that standard and that reflects the judgment the expert judgment of the p p a that that kind of time period for drinking water above ten parts per billion is not a risk and it's not an emergency and it's never been higher than about twenty nine hundred billion in this unit  know there have been periodic measurements that were i think as high as forty over this ten year period but the ten year average is i believe twenty six parts per billion and actually the current level which i think is the most relevant number as the  injunctions moving forward it's nineteen parts per billion so what we see here is a risk that the experts themselves have identified as so minimal as to not require this alternate this alternate water that the district required of the no your honor it has not and in fact the expert from the texas commission on environmental quality couldn't identify any instance in which it ever has anywhere across the country but you don't actually just have to take the state of texas word for this and that's why we've cited to the cases involving the current valley state prison in california where the eastern district california consider claims nearly identical to what's been argued here and experts from california offered the very same advice that the experts have offered here that this is not a risk in the short term or even medium term this is a hypothetical risk in terms of you know long term lifetime exposure and that even scientific studies are showing that this risk is manifesting itself and in certain communities i'd also like to touch upon the elements necessary well for i move away from the eighth amendment there's also the problem a subjective part of the inquiry and it's just entirely foreign to this court's precedent that officials could be following the advice of the experts from the regulatory agency in their state the district court really didn't explain the stansell the deliberate indifference finding didn't know i couldn't find that in the opinion and i think that's because it's just so inconsistent with that notion of how a prison official could not be doing their job when they're following that advice but in also in terms of the fundamental legal error the district court made we see that is separate and apart from the eighth amendment in the in the standards necessary to obtain a preliminary injunction the supreme court held in winter v natural resources defense council that the shock of irreparable harm isn't just that it's possible it has to be likely to occur the supreme court committed a i'm sorry that the district court committed a likely and i see that my time has expired if there's no more questions all reserve the remainder of my time  evidence and on june twenty first issued an order that went into effect on july sixth he issued a seventy eight day injunction for the better part for the entirety of the summer will you know as well as i do than in texas the high temperatures produces basically through october absent unusually unusual circumstances and if your clients are subjected to such a horrible risk it was in their best interest for you to see continuation which i'm sure he would have granted immediately right well i'm not sure they would have granted it immediately because the evidence does not show that the prolonged exposure which is fundamental to this ruling is going to continue in fact of texas the high yesterday was in the low eighty's i think it might have been seventy seven degrees and i'd ask you to take judicial notice of that of that effect i'm not disputing that it doesn't get hot in october but the case that we brought was that there are dangerous temperatures during the summer months and because there are dangerous temperatures during the summer months and because the texas department of criminal justice is key principle in chief measure is the over consumption of water two gallons a day then that water must be safe and so the issue of whether or not that it injunction was our fault that it lapsed judge ellison did not issu ninety day injunction going into october he issued a specific injunction that ended in the summer i'm sorry well why is not capable of repetition why doesn't this fallen to the exceptions capable of repartition or collateral consequences given that once you once you establish this precedent at the court of appeals level well no at the district court but it's mooted out first case in the entire country whole state of texas is hot hundred prison units that becomes irrelevant precedent as the t c t c j i'm sorry but i did not capable of repetition yet debating review it's not capable of repetition yet of aiding review in this case because t v c j has affirmatively stated they are going to put in a filtration system which will eliminate them but any issue with arsenic eliminated all you have to do is go around and test the water at all the other hundred units and you may find none to solve for in south texas or you may find an elevated level of iron or an elevated level of mercury or something like that  then you'll soon everywhere know we won't but you may it mean i'm not going to dispute that there may be other chemicals in water but the put in order for the movement's doctrine in order for the capable of repetition evading review doctrine to be in place it has to be the same ports here the plaintiffs brought a cares where is your where's your evidence of that that it has to be the same or you could look at the saw some in case you look at the staley case well i mean it may be implicit but i don't see  calling and it is the same defendant and it is prisoners change they even go in and out of the pack unit so your have a class action on behalf of an unnamed in pacific group a plane is the facts and circumstances change each of the prisons the temperatures may be different the the remedial measures may be different but again this case at its core is a combination case it is a case about dangerous temperatures which requires a constitutional mandate there to be remedial measures in place which adequately protect the inmates the measures that here they've chosen are to provide a dangerous level of water and because it has elevated levels of change or is because it increases the risk of cancer excuse me sir until two thousand and one the standard was fifty parts per billion does that mean that the a was deliberately exposing the entire american public to elevated risk of cancer it doesn't mean that they were deliberately exposing will they were according you know this is a risk has been because the average level is now half that in this prison system well i think the key is that as as science progresses and as the studies confirm that there is a risk of cancer regulatory bodies make changes the e p a in this particular instance decided that the safe level or the safe level in light of in light of the cost benefit analysis because there really is no safe level of arsenic was ten parts per billion when you go above that in this particular case the evidence in this record shows that no there is only generic evidence in this record there's no specific generic evidence being the only thing that the judge focuses on in his opinion is dr bo boy's testimony which the judge himself characterizes as minute and slight and he uses some other diminutive which does not rise to the level of a substantial risk  and b he has no factual support in his opinion as best i can tell for the finding of deliberate indifference well i think i think that the court ought to take a look at the finding that pertain to the heat which are completely unchallenged by the t t c gensis not say he case here he cases may not even have been tried yet for all that i know but that's certainly not part of this appeal this appeal is reduce the risk of arsenic causing cancer to these inmates and the judge just said they're deliberate he said in one sentence or deliberately indifferent but we know that they're changing out the water system right now that they put a new water system in in two thousand and seven that they've never that they've been repeatedly given a vice by e p a in t c q and never found to be in noncompliance or in any kind of emergency room a deal situation well your honor isn't that all true no it's not you're on of the records true but you have something that you would opposed to that well you just said that they've never been found to be in noncompliance by the a and that is flatly false for forty different quarters in the better part of ten years they've been found to be in noncompliance with the e p a and because excuse me because because they get a form letter from the t c q which says this is not an emergency but is not analysis or consultation with a regulatory body and what's significant about that is while the e p a the t c q may have authority to set a standard and may have a mandate to talk about water quality what they do not have a mandate for is to determine the safety and the constitutional conditions in prisons and here you cannot separate the heat arsenic in our case we did not bring a clean water act case you cannot isolate the arsenic and pretend that he doesn't matter because it is the heat of jealous and did no we didn't notice or he did because his his case cancer a point zero zero three bore i mean how is that a substantial risk well you have to evaluate the term substantial risk in terms of the magnitude of the injury along with the probability of injury because the risk is an elevated risk of cancer that alone would be substantial but again the problem here is the risk of heat stroke and cancer because what they've set up here is a dangerous catch twenty two for the inmates  inmates to drink two gallons of water that have elevated levels of arsenic which in they know will cause an increased risk of cancer they know that so that even given that the experts said it was  zero three four really is the experts are going to leave he assumed all the worst case scenario she didn't assume the worst case well we can we can debate what scenarios that she that she did to pay  inmates have been in that prison system for ten years mr brandon one of the inmates that's brought this well and unfortunately i mean you know fortunately you can't prove a single incident to be been plausible illness whereas with secondhand smoke at the very least you can get bronchitis and that sort of thing ago if the court chooses to wish to ignore the evidence relating to the substantial risk of harm from heat and it should not do that because that is that is the key to this case it is premised it's a combination of these factors are mutually reinforcing you have high levels of heat you choose to remedy that with unsafe water even in leblanc even gates there was a requirement that water be provided to the inmates implicit in that requirement is that the water be safe here the water is not safe and what's worse is they're forcing inmates to make a choice don't drink it or buy bottled water at the commissary i think judge ellison handled that very respectfully what did he say about that he said that there was on the realistic to expect an impoverished class of it to do what t v c j ought to do on its own when order to protect the health and safety of the i don't think that i don't think that's a completely you know it's obviously not a dispositive a human they do have a footnote that say it was well within the means of several of these plaintiffs to buy and buy an occasional bottle of water and therefore significantly reduce their risk well and it may be within the means of an occasional inmate to buy a blanket when the temperatures twenty degrees in wisconsin but we don't force that upon inmates what we do when we imprison and take away the liberty of people is we take on some responsibilities one of the responsibilities we take on our good to cheney and other all of the cases is the responsibility to take care of and protect the well being of the inmates and here it is simply not true that for ten years they have been actively involved with an agency to remedy this problem what they've done is for ten years intentionally expose inmates to a known risk of cancer where is the deliberate indifference they are aware that the water they are providing increases the risk of cancer we would no more serve blankets that are laden with the spastics than we should be exposing inmates i mean just going back to deliberate indifference this knowing exposure for ten years after they put in a new filtration system which they knew didn't work and e p a said when it brought in the ten parts per billion it could take up to fourteen years for these problems to be remediated now fifteenth but that being said the e p a has a mandate to deal with water issues but it is but excuse me that that's they're supposed to be taking public safety into account and if i get my water bill  every twice a year from the water authority that serves our area and they say here's the mineral risk and you know some of this may be a little elevated but it's not an emergency or it's not unsafe or whatever the same  the report for this prison system according to e p a s guidance is that not correct yes in the report would also say that this can cause cancer and you should consult your doctor and did t v c j tell that to the no they did not did t v c j tell the doctor that was treating the inmates about the increased level of arsenic no we did not that is not the act of a responsible agency caring for inmates but we go back to the to the beginning digit did judge ellis and find that there was a substantial risk of harm from the heat at these temperatures in this prison system not in some other prison system in this prison system only any did he just found that measures in place the prison the prison which which included the arsenic laden want to see it wasn't just the prison doesn't deny that he poses risks the prison system doesn't denied that you have to take understood all that and then judge ellison put it simply he thought that given that there is a requirement to provide water that it ought to be safe water and it ought to be water that meets e p a guidelines and that this is not a situation like the cases cited by defendant's counsel in california where we're talking about a two year period this is over ten years and you have to evaluate when you talk about deliberate indifference the time in which they knowingly expose inmates to this matters the awareness of the risk matters and since two thousand and six this notice that they claim is so key to this case has explained that this may cause cancer that there is a cancer is that you have to consult with your doctor and they haven't done that they didn't even tell the  doctor what makes this all the worse is that the packet in it judge davis unlike some of the other ninety hundred other units is a geriatric prison full of the sickest old people in the texas prison system what the law says is when you have mutually enforcing prison mutually enforcing conditions of confinement and here they do mutually enforce one another you have the dangerous heat which forces inmates into the conundrum or the catch twenty two of what do i do do i drink water that can increase the risk that i develop cancer when done over extended periods of time and the numbers are higher you're on us when you evaluate over a nine year period they know there's an elevated risk of cancer but they're purposely subjecting them when the burden to fix the problem is minimal well you know wait a minute you've got these reports in january two thousand and fifteen that you we first found we first took the deposition of the expert who confirmed that there was an increased rate of cancer i believe in late january of two thousand and sixteen it might have been february let's say january two thousand and sixteen if the court wants to criticize us for not moving for an injunction sooner than may by all means but the fact of the matter is it is unconscionable to serve water that you know increases the risk of cancer in order to compensate for a dangerous condition that the court did fight caused a substantial risk of harm and that this court has held repeatedly since gates the lack of a ball that these temperatures do cos real risk and real harm a substantial risk of har because the risk is potential heat stroke or potential heat injury and as wilson beside her makes clear or it is it was well argued in that the magnitude of the risk must be considered with the frequency or the probability of the risk we are not talking about colds the attorney's fees be considered in frequency of the probability of the risk the attorney to be should be considered if the court considers us a prevailing party we went into court to seek an injunction to protect inmates from the dangerous summer hate the court determines that at bare minimum the inmates deserve to have safe drinking water that that we're arguing that that water shouldn't be say is frankly difficult for me to believe but that's what the court found and so we sought an injunction for the summer of two thousand and sixteen and we obtained that so to the extent this court or judge ellison determines that were a prevailing party we would seek our attorneys fees i really think that it's a red herring in a side issue but as to the notion that the a made some decisions they are they do not have a constitutional mandate consider housing conditions in the texas prison system and they did not pass that advice legally along prisoners would be entitled to better water than i get of districts that have that have water above ten parts per billion then you too would be subjected to a risk however what differentiates that example from the example facing the inmates is that you do not live in ninety five to one hundred degree temperatures for forty three percent of your hours in the summer you do not face the ever present all encompassing risk of heat stroke thank you i first like to address a couple points to my colleague on the other side made and i first like to address this issue of the interaction between heat and water but water does not affect the temperatures and think you need to drill these so with that we understand that very well thank you the only thing that i'll add is there's no evidence in the record that whatever increase in consumption happens in the summer changes the risk level from one that was constitutional in the non summer months to one that's unconstitutional in the summer months there's no evidence of that no basis to hold that the record what i'd also like to point out is that this this issue of the e p a s determination of a safe level and that this is just some kind of form letter or some kind of casual suggestion there is ample evidence on the record that t c g has worked hand in hand with t c q throughout this process so it's not just a matter of what's in the public notice even though that is a substantial part of what informs t v c j but it's also the regulatory process that's taken place over the last several years and in that correspondence about the compliance issues in the systems there's no evidence that t c ever offered different advice that this is not an emergency and that they don't need alternate water  i'd also like to point out that ms my colleague on the other side said they did not bring a clean water act case and i think that's notable because there are remedies under the safe water drinking act under forty two u s c three hundred j dash seven but the review in those cases is a review of arbitrary and capricious of the agency's determinations in terms of timelines or risk abatement and that reflects the judgment of congress the judgment of the courts that  this that courts defer to the judgments of the regulatory experts and that's exactly what t v c j did hear mr edwards as over and over said the water is unsafe but that's based on his subjective definition t c jay is entitled to rely on the definition of the regulatory authorities that control in their state which are telling them that the water is safe and it might my colleague on the other side also suggested that somehow cancer alone means that there is some kind of u in or not need to show a substantial risk and that's simply not supported in the case law there has to be both a substantial risk and serious harm and we're not arguing that cancer isn't a serious harm we're arguing that the likelihood that that of the curve is so low in this case that it's not congress able under the eighth amendment and there is no precedent to support that i'd also like to clean up one little fact about the timeline that my colleague offered which is had to do with you know the two thousand and one to two thousand and fifteen the water was actually tested at the packing it in two thousand and three and it tested it seven parts per billion which is within the regulatory standard it wasn't until late in two thousand and six that the first test showed  elevated level above twenty two thousand and six correct and how long is the case i mean so when did they file a motion here just just this last summer and i'd also like to point out a couple of alan did they know about they el the inmates themselves five first filed a grievance about this in two thousand and eleven the plaintiffs councils were asking questions about arsenic in depositions virtually from the start of this case so the notion that either they are not informed or they just learned t at the last minute i don't think that's supported in the record and their own expert gave an opinion and i believe october which of two thousand and fifteen which which address this arsenic issue so the idea that there was some new surprise i don't think can be supported in the record but what i think is happened here is the same problem that judge joey identified in his dissent in the mall an exorcist luna case and that's where the with respect to his colleagues they had determined a subjective outcome and then we tried to work backwards to fit the law to to meet that subjective outcome and i think that's what's happened here because fundamentally a risk that can only be defined as minute and slight is fundamentally incompatible with the that the opinion should not be bay catered because the injunction was closely tailored to the period in which inmates would be drinking more water well first i think that would be an excellent argument for why it's going to escape or appellate review in the is that also when that the an injunction expires due to you know the passage of time or just a change in circumstance that's not on the fault of the party that's seeking appellate review they are entitled to have a caterer and i would point to the eleventh circuit is decision in the united states versus the secretary for the department of corrections for the state of florida in two thousand and fifteen when the eleventh circuit held where there was appeal are a injunction it was allowed to lapse under the ninety day provisions and the court held that of a cane or was proper in that instance because it