the district court misapplied the law ignored a critical factor under the law the low risk of an oil spill and apply the wrong standard you said it should be reversed because the course environmental assessment is rational and supported by the record thirty should be are requires agencies to weigh both the risks and consequences of their actions so an agency can rationally conclude that the effects of its action are not significant if the combination of risk and consequences small enough did your honor yes and is it and let me just ask you the nd half of my question yes or is it the question whether it did or did not resolve the controversy not whether it rationally concluded that by the district court in the memorandum for record court repair which of course meticulously walk through all of the criticism submitted by the tribes and respondent to them and explain to each case why the the trius criticisms haven't raised how to cast substantial doubt i'm the course in data its methods or it's huge so that's where the core rationally conclude that there isn't a significant there is not a highly controversial  have described what the course to do in the context of a peer review you know i'm aware that that's the language we've used to describe it i'm asking you but bad means how that effects the nade sure what the government the government has to show here require more than simply a rational decision in light of the tribes criticisms but in any event if there is a higher standard if there is a standard for a convincing case i believe the who are his need here through its lazy analysis of the tribes criticisms a convincing showing of this controversy doesn't taint the type of study that it would provide and we're only trying to figure out here whether there should be an environmental impact study not whether you can do what you want to do anything i got of course not is just whether there should be an environmental impact studies so it seems to me the nature of the show and the resolution of the controversy has me one do we need an environmental impact study to probe further on this dispute that's or have you cleared up have you made a sufficient showing a convincing showing that we don't need an environmental impact study to resolve this dispute that's all it means i think yes after you know two point zero nine re it's not entirely clear t analysis of the specific structuring systems of this pipeline and they confirmed by its analysis of the historical record of pipeline spills and incidence in contrast the trucks criticisms are generally based on the argument that the portion of assume that i don't have to push one he had them call assume these are indicating that it is in the process of calling you and that the call has only the good let's just let's just keep going i'm sorry about all this let's just keep going i'm sorry right and that analysis was the basis for its decision so and there's a controversy over that isn't there so there's two aspects one so the worst case destruct which i don't agree is a worst case specific use by the pipeline by fitness of to analyze to create a number that's appropriate for oil spill response plans it doesn't necessarily assume for example that it's the absolute worst accident i've ever heard is that analysis where does case scenario so we don't assume everything goes haywire but as a sense of a term of art under the regulations for the pipeline as i was calling it can you tell me definitely a leak out more oil is being pumped in all the time so you've got to shut the post down and then close the garmsir shut down time now for example this is one of the crosses that the tribes were shut down time to put it the since regulations require either the maximum historical time that's taking to shut that specific type wind down and in this case that number didn't exist because the pipeline about started operation yet or the operators best estimate says regulations don't require that when you generate this worst case just charge estimate you then compound this into a worst case scenario by assuming the longest conceivable shutdown time because what happens if you do that is you quickly end up w so that you can find i mean this so that there was it's based on the operators the s s with as since it required regulations require it's based on the fact that the pipeline has the pressure sensors that can detect the that's my question is how did you get from one to three well we'll just go with one in a worst case discharge analysis well so i think as the course of there's two things to say st of course that's not doesn't include some padding right cleats for example it takes only about thirty seconds to actually close the valves and of course of course knew that i would take command where i'm talking about the detection time because you can't close the valves until you tackle that so how did the core film i don't think so your honor because even if it were three minutes instead and assuming that that would extend the time to fourteen nine minutes you're talking about an additional eight hundred and twenty three dollars barrels of oil which is about a six percent additional increase in the catastrophic spill and what the trying to show here is not just that there is any possible disagreement about these numbers but that there is a substantial dispute that calls the course ultimate if you have a pinhole leak that went on and on and on and on because it wasn't detected then why isn't that something that should have been analyzed in the way oh we got all we got unless you can tell me what else to have is that well and balance will develop over a period of time and will hat system but the c p m systems are a computer program that lays on top of the scatter scout also monitors how much oil is moving through the pipeline which as i understand it a complex issue because you know the volume of oil depends on the pressure and fluid mechanics questions that are beyond my skills and that's the system that well eventually them the part that pipeline company needs to know how much oil is go into the pipeline and how much is coming out and eventually those two numbers are not that i don't know  limited and then you conclude that the risks of these pills are very low now the risk of dr still is very low for this pipeline because it's specifically been built to prevent the kind of corrosion that causes those pinhole if if the equipment doesn't work or doesn't work for a couple weeks and because a saying is so far underground it's not going to be detected and they shortly i anything went in the only way you would detect it at that point if they scan equipment isn't reliable is when it eventually comes through either in water comes up through to the ground or opera st into some other water or up to the surface these electronically detection systems or they had it and they were north and for whatever reason and the operator here assures us that they've taken procedural steps to ensure that doesn't happen on this pipeline so the court did d look at these issues there's no dispute there's it's not controversial that a pinhole leak will take much longer things in back says i'm trying to figure out why it all together doesn't why those two don't intersect so that the tribes didn't show that this operator has a significantly worse record than any other operator it's reported more incidents but it also operates more three so the court did look at overall safety records for pipeline incidents but that was a core element of its analysis which necessarily includes this operator along with all i know  say this in the course says it said that the operators that the operators still promote the record are in line with industry standards but let me titles question that someone else is going to tell you about their safety record we need to know what the core determine about their safety record in this record and in its disposal i think the court did not need as far as i'm aware your honor it's a fine specific findings that you record is comparable to these national averages i don't believe that findings in the record if that's a critical issue i think the answer that is not to compel the preparation of environmental impact statement but t s i believe there are such cases or i don't want to simply romance for further proceedings consistent with this order which would allow the agency to make its own determination about in light of the court's reasoning whether or not i'm sorry you just you just broke up could how many months i'm sorry you just broke up and i'm sorry on how many months thirteen months is about thirty minutes but yesterday the coroner or the district court but it may take somewhat longer than that recently and the including elimination of the highly controversial factor for deciding whether you need any i ass and i found the language when that was new regulations applied to me rather vague if we were to remain and for the agency decide whether  with a new regulation upon address the concerns raised by the court hypothetically if it were or you decide that you know we need to do environmental impacts now i'm trying to understand why your next position wouldn't be under this so i think the corps goal is to reach a decision not whether to require removal or out grants of such a new easement to make that decision at the same time that completes any further this further environmental to the rational mind that applies the arbitrary and capricious tender i don't think it is an enhanced stand gird about what the a p a actually actually requires but i think ultimately you know the question is whether the issue that has been against how bad things could be doesn't change require environmental analysis well and two points number one there's a requirement of their plan to answer it and because you know the plan keys are something that conceivably could happen that is much worse someplace else in north dakota are the you know resources that are allocated to dealing with a potential emergency are six times one that might occur in a large storage tank elsewhere in north dakota and because that is conceivably hypothetically somebody warps the resources that are available to deal with anything that might happen  planet are six times what the army thought was the worst case that could happen at least we trust separately computed using the pencil form that's that's part of what i'm trying to convey where nobody goes and only only the house see the little sprinkle and think oh by the end you know barrels and barrels are leaked and the agency says well this is your paradigm and those are the cases that you're cited and they said some period of time in their language has gone by is there any and let's say it's a slow link at the level it's below what the scatters going to tact is there any pass anything in the record that talks about how that will be detected before it's coming out of the war holes yes i believe i mean i have to go back to the to the texan from the me from  in not only their expertise but in what seems to be a perfectly commonsensical way to say that if you have tons of you know materials on it in whole leak this is on likely to happen in the way that the plant this model actually  able to justify its approval of the easement right so we should correct but let is correct question before us the course decision not to prepare an environmental impact statement that's the failed to go through notice and comment as part of the room and and that was the issue before us we wouldn't ask in fashion a remedy that is in considering whether to order the agency to do notice and comment rule make wouldn't say well we don't need to because we think the agency can automatically justify the regulation seems to me this is exactly the objections that are usually raised in cases like this including people deciding on the ide line and other d alternatives and so i think based on the work already done by the district court you can be reasonably confident that this is a case in which the failings identified data whether or not it's in line with industry standards he said you couldn't answer that question yeah you know my st answer is that you're asking a question that they never ration the remained the figure that you raised if no explained that this company had an unusually troubled safety record that was never taken into consideration documented and who were reviewing what the court reviewed that is to say the review of the y the difference here is that the district court gave the army corps an opportunity to get it right it gave the court a remained in a roadmap on how to come into compliance and the agency was not probability as well as the consequences you know in talking about here in our discussions whether the safety record is any better or any worse than anybody else's is is a recognition that oil test and was extensive and detail that evidence that effects more significant more disputed more controversial court ever knowledge so i think it's important to ground ourselves in the and direct effects so anywhere where in or else belong that pipeline could affect the lake used to be part of the need for you and in fact that's what the show even a oil spill that was company as this court recognized in seven night these kinds of decisions are within the special expertise district court to assess and the district court did not act hastily it held another round of briefing again didn't say of course likely to succeed on its argument they say whoa it just says flat out they didn't do it the district or didn't do it it seems to me that that's a lot of case for us there's an important question for this court right now there's still the question of what what is the meaning of a kitchen and right now because of that order they control means nothing it means that the pipeline can continue operating and it means that i think you made that argument you i mean i don't know what to tell you that you know we think that there is a major unanswered question that hasn't been solved and so i hope to at least have the opportunity to take my best shot why i think the notion that because this is near there they are regulating the operation of the pipeline underneath lake a lot i don't think that's been i don't think regulation extends to you know where acts and under the rivers and harbors rivers and harbors th and that's true but it highlights the fact that the court is operating in a regulatory capacity and there's nothing in their engines those are permits issue violated the law and the outcome they are promoting here is specifically precluded by monsanto question that chase also involves questions of remedy for an agency that there on that issue of the worst case discharge question is whether there was a i think the question for this court is whether there was a standstill controversy around whether they estimated at  correctly a significant component of that was time to check to spell out what the district court found was that the or its estimate included literally zero time and we got into a discussion about whether there was a that was exactly your point things happen people there's this human error systems fail they built a system around everything working perfectly well that the question was you know we have  record didn't support that fin that there was there is no back up power in this extremely remote part of the country and they were relying on the annual closure whereas i plan would drain empty tens of thousands of breaking a pipeline that happens during the winter and then also the valves fail and then they can't get to it in time so you have to assume a whole series of worst case scenarios to get to that trip implicated when they raised them we talked about they bring some expertise and you know the comparison between this case and so on where the ord describes literally the mood of the remitting criticism by expert agencies that have been designated by congress nobody i understand the point and the point i'm making is different which is that like it or not there is a distinction between identifying people who have created a controversy at that is based on municipalities which may be entitled to respect in other contexts it's nothing from them to acknowledge that but it does you know wired to you know but seventy does all of us to recognize that they're also they're not going my back the