may please the court scott's loss or behalf of the carolina department of transportation and secretary tennyson this case is moot as a result of actions that happened after the district court's opinion we asked the court to vacate the dish of course decision and rema correct under every evaluation there would be that would be the standard and and currently if if one hundred million dollars appeared the agencies would have to do every evaluation regardless of what happened here today correct but w also the agencies would have to determine whether or not there need to be a supplemental p i a s based on whether there's a change in the project and new information and so forth  information whether is the the minutes methodology in the us still valid is there new information because the m p o updates their socio economic data area or continuously it's a continuous process they have to update it every five years and so there's a new set of social economic data that exists right now that was not in the us so they would have to look at that in that new information we declare the case moot but refused to vacate the district court decision what i would that that the project would have to come back to life for the agencies to even consider doing looking at a new need for a process so they m p o that would have to put it back in their plan money would have to be found to have to do all of things which i think is very highly unlikely at this stage assuming all of those things happen agencies would say it would have to determine whether or not they do a supplemental yes whether they'd do a new entirely new nepa document and that's it something that the action the record of decision is a final agency decision of a federal action this is not a federal action anymore so the ride is really a nullity there is no there's there's nothing for a decision to be made on because there is no authority for this project to move forward so it's it's it's a i understand the concern but i think the practical effect of what is going on  confirms that this project is defunct it's it's no longer moving forward so there is no concern in reality that if the right is vacated and we would agree that the o t would agree if for some reason they get your revive the rod but the rod should be rescinded at that point we agree with that to ultimately is a decision of the federal highway administration but again the broad it would be an elegy there is no project to clue i would argue this certainly is a case of happenstance the north carolina department of transportation did not make the laws that that took away the funding they didn't make the news anything you're totally just to see but it's a different branch of government right in the o t is under the executive branch they are only authorized to do what the legislature authorizes them to do they don't make the laws and so it is like as if i don't believe that the that the stiff but it incorporates the empty ip without change into the stip so the o t doesn't have discretion to put in or take out this project that's it that's the decision of the m p o it has the it has to approve that process without change so the fact that the m p o took it out of their plan takes it out of the state plan and without the project being in either of those documents there is no federal authority  to move forward with this project it is no longer a federal action but upon upon a decision the merits we believe that the district court invalidated an established methodology of starting with the m p o data and using a gravity model to quantify possible induced gro o those are the experts in local transportation planning and they're the experts who project future scenarios look out twenty years into the future try to project socio economic conditions and so forth and then plan transportation projects to meet those needs so they are federally mandated to use current assumptions current projections in creating transportation plans the agencies did in this case feeds off of that process they feed off of the work that the m p o does and that's that's what happened in this case so the m p o data represented it was determined to represent a build scenario agencies went to the m p o the local experts who created this data it was determine from the local experts that it does create that it is they build scenario that the o t asked those same local experts who created this data is it reasonable to use a gravity model to remove the influence of the project to determine a no build scenario and these local experts all agreed that yes it was reasonable to use a gravity model so what better validation is there to ask the local experts who create the data whether or not it's reasonable to use a gravity model to manipulate their data or remove the project to come up with a nobel scenario so to be clear in the ice in the interacting humans of study agencies came up with two sets of socio economic data they had to build which they started with and they determined no builds an area the comparison was only within the i c e study area only and so it was not within the region and i think that's the kind of the fundamental in the district court's reasoning that the district court focused on the regions of the geographical area of the region where and in fact the i c study area only included six percent of that region it was determined that way because that was the area that the project would increase excess ability and so that was the area where this project could induce gro of the project is to increase connectivity between gaston county and mecklenburg county so it wasn't too it was not for economic growth it was not to induce growth in the region it was to provide a connectivity within that those two counties and so that the project that the agency looked at well what what how does a project influence growth will it makes it easier to travel from point a to point b it doesn't change though nina doesn't change schools it doesn't change whether land is cheap or doesn't change that you might be able to be close to lake wylie it creates a better accessibility and so looking at that factor that is how the agencies determine or try to calculate how much additional growth would be in this localized area the gravity model it they started with the building so there is a gravity miles a series of mathematical formulas and they determine accessibility and they put a put that into a formula and determine that based on travel time savings  looking at the areas that the project would provide travel time savings that would be the i c e study area and so it was able to quantify i guess the accessibility and able to use that quantification and remove the influence of the project by removing the socio economic projections so if you look at households to begin with they did the formula came up with a way to quantify and basically remove people from the project because remove people from the study area because the influence of the project was no longer there and in doing so then they creates two sets of so then you have a new set of socio economic data that can be compared with the original build scenario and that's how they quantify the two point nine percent induced growth that world would you start with the build if you and then have to work to remove me that it's just it just seems so illogical it's counterintuitive but it goes to the heart of this case the federal regulations say start use the m p o data well the the travel to be a model is a i guess it think of it as is it is the tool that was able to generate traffic forecasts travel time savings as a component is a factor in that tool belt time savings along with other lots of other factors come out the help generate traffic forecasts so they took a piece of that model because that's they that existed there in the model and they were able to use the travel time savings to determine what area will this project help influence most environmentally destructive transportation projects ever to be conceived in north carolina the district court twice has helped that that analysis was illegal and the federal defendants in this case have court works in vacate the district court's opinion and the would go out in the world as the baseline need but document defendants than would have to do a reevaluation which is not public process and enter into a process and determine what changes have there been since that last need for a document were published they would then decide have there been sufficient changes so that we need to publish a supplemental  that supplemental if i asked would focus on those changes and if my clients for example wanted to challenge that supplemental and i asked if it would be limited to only the changes that had occurred since the last would i don't believe so you're on of the statute of limitations is very has been very much narrative for the past five years by the united states congress to one hundred fifty days such that there is only one hundred fifty days to challenge that initial document and i don't know that there would be any ability for our clients to challenge that a national analysis and not the the change in the the supplemental other than right now for for many years because the writing was on the wall that this defunding was going to happen and i would just point to join appendix page three zero nine which is where the state defendants briefed the ripeness before the district court and took an entirely contrary position to what they're taking today saying that underneath the issuance of a broad is not contingent upon available fun does not require as a project to be it does not require a project to be constructed within a certain period of time so it's certainly before the district court and until they lost the defendants in this case have been saying that this  litigation and need for a process is entirely separate from the political funding process that comes next and that necessarily comes next because need is a democratic decision making tool that informs by that i don't believe my clients would be compromised i do you think it would be setting a tricky president underneath if i case could be made it out because of funding concerns because there is that very narrow statute of limitations i think it would allow departments of transportation to let that clock run out before the project was funded and claim  rightness up until that time out of problem you're on no no your honor and i believe that if so long as this record of decision is no longer legally valid that's all that my clients have been fighting for for four years turning to the merits this case is really about baselines and is very similar to the two thousand and twelve cases this court decided north carolina wildlife federation and back bay and defendants fed out these arbitrary baselines into different parts of their analysis but when they started the very first place they started way that was the traffic forecasts and for that traffic forecasts the very first thing they did was use janet call forecasts of socio economic growth to create both a bale of traffic forecast and that no build baseline traffic forecast that everything is compared with and defendants at met and the record that no bill of traffic forecast was based on data that assumed that this road would be built and so from the very outset of this need for a process you have a completely arbitrary base fine just as you did and the north carolina wildlife federation case and it's not surprising that the case is th so similar both of those roads were being analyzed by the exact same people at the exact same time under the north carolina turnpike authority of the un so those says that the reason they did that is the time when they first put out those traffic forecasts for starting point in two thousand and seven no reasoned determination had been made there's nothing to point to in the record that it had been i believe one defendants make that point they say that after they had been through all this other analysis and the gravity model and which i can talk about in more depth in a minute then in two thousand and ten they went back and sort of in a post  that was fine what we did at the start of the process and the reason they they make that assessment is that through their gravity model they assess they found very little difference nobel projections and so they said well it was their k to base our traffic forecasts on the same data but that assumes that the gravity model was correct and it also overlooks the really important part i l no your honor i was answering your question about traffic forecast roads and they used their separate analysis of the gravity model to justify their traffic forecasts and we believe that gravity model process economic data which we tweak into the baseline in the build alternative that's that's right you're on it and then the problem with that is it's not just the level of growth it's the distribution f where people are living all of that underlying data was based on the sunshine and that the road would be built and i believe the consultant who made that data thought that it would affect growth somewhere around fifteen percent and so you've got all this growth that's come from the road being built and then the only thing you do for the the no build forecast is he out the road and suddenly about all these cars having to fit on existing highways and so of course can just suddenly looks a lot more serious than if you created a no build scenario that actually didn't include roads influence and this is a type of error legal a number of district courts have found throughout the country at that department of transportation have used to justify construction of major highways like this one meaning to tear the gravity model again i as i believe you noted with mr slawson the starting point there again it was that the road would be built so you've got all this growth from the road and your build scenario for the no build scenario all that was done was to move it around a little bit based on accessibility miss just mentioned that they remove the employment of the road but there's there's no evidence that that was done all that was done was to remove the influence of accessibility and mr slawson mentioned while this road this billion dollar highway was not going to be constructed for economic growth but that is not what defendants said and their application for federal loan funding in fact they explicitly sa we would like the federal government to give us a low interest loan because we want to build a billion dollar highway that will bring growth and jobs and economic development to gaston county it's the same story that defendants were  those local municipalities wanted this road to be constructed because it was going to build bring growth and development and jobs to the region and so it seems road precisely for those for purposes also mentioned that federal regulations say that you are required to use m p o data and so that's why they started with this bill data and it's true that the federal regulations say that you can use m p o data and that might be a good place to start but the regulations also clear that you've got to use it for an appropriate purpose and federal highways regulations make very clear that the first thing you look at when you've got that m p o data is does this assume that the road is going to be built or not and if it does then you know do you need to separately forecast how the road will look like if the area will look like if the road is not going to be bill so we did we gave an escape clause didn't your analysis yes you're honest that that is they pause was based on their like you know a highway ninth circuit case and that's a case where ninety eight point five percent of the land area had already been developed or was slated for development and in that case the court said well it's really not going to matter whether we include or its influence on not because the area is just fully saturated well laguna beach gaston county as a very rural area currently there is plenty of land to be developed it's certainly not developed or slated for development and this road is as defendants themselves say in the past creating these two major crossings of the khatab or river that would open up all that land for development so you really couldn't find a more different situation in fact exactly and that's what this court found in when it looked at the case and union county also very  rely on the kind of the sobriety idea that no highways ever bring growth to an area so it's fine for us to assume that in our in our baseline one there's not record support for that assumption and two defendants themselves prioritize road based on how they are going to bring economic growth to a region that's a lot of reason why they build roads in the first place and here you've got a situation where there's a major international airport a new and a model terminal you've got two major new river crossings opening up all these areas of land to development and for defendants to just rust on so unless you have any other questions or to affirm the ruling of the district  created a erroneous basis to invalidate future environmental impact statements on future highway projects let's see if that's a really good to go to the m p o and see what data they have and try to use that data and make it specific and continue that process with the nepa process it's it's something that that has happened happens in north carolina happens across the country and federal highway project just what the regulations say is that's the way the transportation works is it starts with the m p o and it works its way through and then you get the construction and so for the agencies not to be able to rely on the infield work that are that they have already done there are the experts for duty to come in and push them aside and said we're coming from raleigh we know what's best for your your you know we know how your area is going to grow that's not what the regulations  numbers could be contained within the region they could disappear in the in the thin air they're not studied they're not considered it's only that they only compare the difference between the build and no built in the i c e study area only can you understand why i  i have some skepticism that a billion dollar connected say between riley and dome would be looked at just within the local area around the connector bill alternative and that's what i understand in that initially because the the build such an iconic data is what the agencies had that is what is in the travel demand model so that's what they used initially for traffic foreca when they completed the i c e study they had a new set of socio economic data that was a no bill so they started with a bill now they have new information which is a no bill agency's took that information went back to the traffic forecast to say is this significant well these new social economic data is change the conclusions in the purpose of the traffic forecasts and they as experts determine that it was not a two point nine percent change in socio economic data is not going to change the purpose of the traffic still going to be a four lane road is still going to you know that the footprint is still going to be the same it's still going to impact the same amount of wetlands streams and so forth and so the traffic forecast is a is a blunt tool but it's not a to reopen that process give the plaintiff's assurance that they can refile if this existing e i a s is used for a decision in the future i don't believe that such a limitations would be implicated so a dismissal without prejudice it would i think it would leave the plaintiff's ability to read to refile this complaint to challenge this  the authority not directly and that i guess the authority is is just the that the this court certainly has the ability to do for require further proceedings as maybe just in those circumstances also under rule forty one