morning in may have please the court my name is holly harris here this morning on behalf of the appellant's and i would like to reserve five minutes for a reply all right the thrust of this morning's case addresses the unique and demanding obligation the clean water act imposes on this agency when it authorizes a private companies spill prevention and response effort this is agency alone is the only time the federal government makes pacific site specific choices about whether a private company has enough boats oil spill response boom people containment skimmers to not only clean up the oil but as congress made clear in the statute at thirteen twenty one eighty eight to do what is necessary to protect public health fish wildlife shorelines and beaches to the maximum extent practicable as the federal government's own spill plans admit in this instance the bureau is approving quote the primary guidance document for the spill response effort s e r three one nine those plans also admit the quote show must direct its own contained control and cleanup effort the i don't want to say sure we have limited time are you still making the claim that shell said it would clean up ninety percent of the oil yes we all seem to continue to make this claim and i found in the record it's hard to find that shell ever made that claim oh i'll point you to the language of the still plans your honor and now i'm quoting from shell zone beaufort's bill plant quote due to the scale of the initial response to the oil farther off shore relatively small quantities of oil are expected to reach the beaches that's it e r nine zero nine b but that doesn't say that they claim to clean it all up the plan say that shell assumes it will recover the impossible so what difference does it really make it makes a fundamental difference in this instance your honor the federal government admits that shell has an overwhelming bias in this instance in terms of its offshore readiness as compared to the resources that will protect alaska's shorelines i point you to the federal brief in twenty four making that acknowledgement of the oil pollution act doesn't require shell to estimate its recovery rate is it no your honor it imposes fundamental obligation on this agency to ensure that this private company is prepared to the maximum extent practicable to clean up and protect the environment and wildlife but they never claim them is possible that we cover ninety percent of the oil i i i like it when i don't see what difference is face it makes the difference because here the agency aired for two reasons the agency never consider what happens if more oil hits the shoreline how many more resources w shell need if more than five or ten percent of the oil hits shore there's no dispute in this case the agency failed to conduct that analysis that alone renders the decision arbitrary for the agency failing to eat to address a critical aspect  of this case i'll point the court as well to e r two eight three in which shell is explaining that based on those efficiencies quote the total volume of oil that would be released as skate containment and recovery and spread on the water surface and quote is less than ten percent the fact is the plans mean what they say the story started changing after the public comment process after the interagency review process it began and  underway i will remind your honor that this is not an instance in which shell was basing this on some assumption about how much oil was going to particular trajectory suggested how much oil would go ashore that's not what the spill plans say at nine o seven nine zero nine b that's not what shell said it you are to eighty three and in fact shell relied on the exact same planning assumptions in the old beaufort's bill plan at  ninety seven and sixty nine when the spill trajectory had the oil coming ashore within a number of hours let me have you address the consultation requirements and whether the bureau's approval constitute agency action certainly your honor the question that this court will address is that this agency alone decides what shell brings to the arctic ocean what resources what personnel where are those resources staged how many boats how many how many how many feet of boom where should that be stored the clean water act to require shell to implement these plans that's a thirteen twenty one c three b and j five f the bureau's own regulations and i'm quoting show must immediately carry out the provisions of these plans that's at two fifty four point five paragraph eight eight shell in fact can't even deviate from these plans unless it's directed to do so the culmination of those events as reflected in the federal government's own spill plans which require shell to begin cleanup immediately it doesn't sit by and has to comply with the plan but this that mean the reverse that approval of the tampa and authorizes the handling and transport and storage of much i followed the logic of that shell admits in its own spill plans that it is authorized and does have responsibility to begin cleanup immediately e r one one one nine and e r one one one three but the agency's own regulations reflect that immediacy shell must immediately carry out the provisions of these spill plans again to fifty four point four a but the federal government's plans here are a luster tip of the same point the federal government in the arctic ocean doesn't have slowed down for a second i'm not sure i follow that shell has to comply with the plan right but does that mean that the agency approval is constitutes the authorization yes your that's your argument this is the only agency that makes those decisions there might come a time in the future where another agency will step in if shell isn't doing a good job if shell is ignoring an important area or if there's something more that needs to be done but according to the federal government's own spill plans this is the primary spill response document this document describes how shell will protect environmentally important areas fundamental questions do we have enough boat to protect places like lead yard but do we have enough people do we have them in the right locations those questions are never answered it any other stage of spill planning the council that he has he this is your position that the regulations do not define the oil pollution  some extent practicable standard at all or that they provide only a partial definition no your honor the regulations clearly define maximum extent practicable and it is a demanding  a demanding standard pardon me at two fifty four point i am defining maximum extent practicable this agency said it is within the limits of available technology within the physical limitations of personnel so we're not talking about impossibilit but it is a demanding and weighty obligation after the exxon valdez congress didn't want oil companies sitting idly by and watching our shorelines contaminated with oil congress wanted action immediate action at the hands of the responsible party and here that shell not the government shell doesn't sit by and wait for the government come in and make these decisions so that demanding standard is reflected in the regulations and i think it's important here that the regulations are  fully consistent with this obligation the regulations explain how the company prepares a spill plan that's a two fifty four point twenty those regulations do not decide to determine what an agency will deem sufficient in those regulations describe how you format a plan that's at two fifty four point twenty one but there is a second step in this inquiry the agency must decide is that adequate is it good enough to reach this demanding maximum extent practicable again this is the only time in the entire scheme of federal spill response plan which congress imposed that standard so you rely on that language to the maximum extent practical to say well look the agency has discretion in the term and what's enough what what is proposed by shell and whether that's sufficient technologically sufficient and feasible but the government's response as i understand it  deference come in let me answer that in two ways your honor first the language of the statute is clear as your honor has pointed out there is an obligation on this agency to ensure this company is ready to clean up an oil spill and protect the environment and wildlife to the maximum extent practicable there is no dispute there there is no ambiguity that must be enforced but even if you if you conclude the statute is ambiguous for some reason the agency has never promulgated its purported interpretation these regulations do not govern approval they govern what the agency a looks at and considers and it's important to recognize that the eight understand that is not my question isn't really focusing on any ambiguity in the language of to the maximum extent practicable and my point really is that the government is relying on a different portion of the statute that says there are six specific requirements listed if the response plan needs those requirement we grant approval and so there's there's two different portions a statue here you're lying on to the maximum it's a practical there are like hundred different portions of the statute and so where there's two different reading don't we have to apply sh deference to say well the government's reading is such that we have to defer that there actually is no conflict here your honor there is the obligation if the agency concludes its maximum extent practicable it must  and yet the government and shell both knowledge that other spill plans provisions in the clean water act section thirteen twenty one that include shall and shall approve formulations do trigger e s a consultation and yet they've never distinguished why is it would apply for example to the federal government's area contingency plan with shell and shall approve requirements establishing the requirements akin to what you've just described and why it doesn't trigger those same obligations here it's important to remember here the agency acted with discretion in the very record before us today the deputy secretary of the interior said how soon after an uncontrolled event are we requiring shell to install a capping stack and include deploy its containment equipment there are no regulations that require that equipment this agency required i point you to f e r sixty four to ninety three but this agency went farther it required changes that originated with other agencies as a reminder of the to the court this took months of review a presidential appoint a task force and part of that review solicited input from those other agencies and that's now reflected in these ultimate plans that's it sixty to sixty a pardon me effi are sixty to sixty four and seventy four and seventy five but over my own accord as well that an agency was quoted as saying you don't want to remove your discretion to approve or disapprove the plan based on it as a whole piece this agency not only has discretion it has the obligation congress changed the statute specifically to require an independent and serious examination what the federal government and shell have distilled that to is a ministerial act it's a simple yes no inquiry there's nothing simple about cleaning up an  the arctic ocean these are complex fundamental and very challenging questions and this spill plan these plans are the only time those questions require government to have a plan this well and the plan does it seems to me require to me let me answer that in two ways you're on first it's not duplicative because consultation any peer review in this instance would answer fundamentally different questions we're not asking questions this time about where to drill in the arctic ocean or where to lease in the arctic ocean this is do you have enough equipment is it in the right location are you prepared to protect endangered species floating on the surface of lead yard bait do you have enough boom to be able to do that  of importance to polar bears in the open sea for example but turning to the area contingency plans i think it's important to understand the relationship between these plants your honor is correct that the federal government identifies those areas its plan but it's only shell that explains how it's prepared to protect those areas i point your attention to s c r three three one and three three two the first spill plans at issue in this case dictate how shell expects to protect those resources and this is the only plan that does that and without all reserve the remainder right all right thank you very much good morning may it please the court i now use mic here representing the united states i'd like to reserve seven minutes of my time for counsel on which seven minutes all right the intervenor defendant here the statute and the regulations set forth a scheme in which facility operators must submit oil spill response plans that contain particular elements those elements are further refined by the regulations that tell facility  operators what specifically they must do in order to meet the requirements of the statute here bessy the bureau of safety and environmental and force them and must ensure that such plans contain those particular element also good just as a delivery question you talk about chevron deference in your bruce why is chevron differs from warranted in this case where does the regulations even purport to interpreted to to lay out the extent of the obligation of facility operators in terms of what they have to provide so the question is indeed more one of our  e and in an agency is entitled to say what it is that its regulations mean unless those right unless that interpretation is plainly erroneous here bessy has never required any submitted submission that goes beyond the requirements of the regulations it's very it is very true and it is certainly the case here that bessie has an obligation to ensure that the requirements of the regulations are has no further authority to order additional changes or add elements that go beyond the statutory requirements and that's really what's at issue here the the pla something technologically more advanced out there that's that's available that that's not included in the show to answer your question about  technological advances the regular regulations require and a description of the equipment that can that is going to be used in the event of a spell so if shell has for example a capital team a system outlined in its exploration plan which is what happened here it's required under the regulations to supply a description of that equipment and how it will be used and that's you know that is what the regulations require require and that you described this but we're really not satisfied because we learned in consultation with some other companies plan that there's something better out there so we think that what you've submitted is not  technologically advanced enough to meet the maximum maximum extent practicable standard under the statute that's he doesn't do that doesn't have to discretion to  that regulations talk about the equipment that's going to be used that's going to meet a particular standard and not the effective daily recovery rate so shell has options in determining how it is going to meet that you know performance standards that are that requirement if it has more efficient it could be more efficient equipment it can use that if it has if it you know has more both that's also an option and and bessie itself doesn't have and extensive very fine proofing i've got to ask a question about consultation under the endangered species there is a sad why should the bureau be given the authority requirement simply doesn't attach to this type of approval what's really what is really critical here however is that it is the area contingency plan that sets forth the federal government discretionary decision making on oil spill response strategies protection of fish and wildlife prioritization of special special areas dispersant use in cd burning all of these issues  that where the federal government has to pass to make important choices about how these things are going to be addressed and it is for that reason because it is at that level that the federal government is exercising its discretion that consultation to the extent that consultation is required on these issues needs to be done at their area contingency plan level now if for whatever reason some but it was a question as to whether or not that consultation was sufficient and that's that's an issue for a separate case that's not an issue that's presented in this case you know and in this case that consultation is moving forward and there is there it that that the bureau concluded that it did not have the requisite discretion or authority to trigger the requirements of section seven of the endangered species act and that determination was proper given the limitations on bessie's authority and the the statutes the way that that statute works putting that type of discretionary decision making and authority in the federal government at their a contingency plan level and require any this is something that i think can is a really important point that consistency with the area contingency plan is the first the number one thing that oil spill response plans are required to have in that the statute requires spill response plans to have and it to be it's also written put throughout the throughout bessie's regulations that consistency with the area continues the contingency plan is the touchstone that's that where that is an absolute requirement for all of these facility is a facility response plans and the regulations in fact have i think a useful diagram at forty c f r three hundred dash point one two ten it's a twenty four of our supplement that shows the national national oil spill response system and it puts that b c p at the center of all of the potential response conducted might be put forward by a private entities by vessel owners by state and local governments and by individual fed federal agencies all of them need to be integrated with and that's why it's at that level diet that the federal government is exercising its discretion and making these important decisions but at this level your position is that there's no discretionary each scene action that's right this case is very similar to the situation that was considered by the supreme court in homebuilders where there is a list of statutory factors and the agency has a duty to ensure that each factor is is met and indeed does have to exercise its discretion in determining whether or not the fed the factor itself has been met but has no authority to go outside that numerated list supplied by congress and add additional additional factors that congress did not intend for it to consider and again in this case one of those enumerated factors is in fact consistency with their area contingency plan and it's through sixty one when it goes through the regulatory requirements it is checking each one to make sure that there is consistency with the airy contingency plan lays people this is discretion making that decision about each factor bessie does have to exercise its discretion to determine whether or not the requirements of the factor are are met and that precisely the situation that the supreme court encountered in home builders and it it but that alone is not sufficient to trigger an independent round of endangered species act consultation and here i think it's a very important question as to what exactly would be accomplished by by imposing this additional round of consultation where these issues have been thoroughly examined and vetted by the appropriate wildlife agencies they've looked at these issues at numerous different stages  many different levels i think that is something that truly distinguishes this case from a lot of the other cases that are in the briefing or the question there was whether or not environmental analysis would occur at all here we're simply talking about what level  reference the area to contingency plans on those topics it's very clear that those use of those types of methods have to go through an extensive either pre authorization process through the in a c p which is subject to to this particular case that they're asking for really answer different questions how do you respond to that i mean first of all it's not clear that whether you know where shell is sites boats is necessarily a action that may affect the listed species provided that that those boats are capable of responding to words he's just charging that that's a separate question but with respect to what discretion bassy has that again is bounded by the regulations which tell bessie to look at the trajectory analysis to see where the oil were go and then to ensure that shell has the appropriate amount of equipment as defined by the regulations to respond to  and i see that my time is up are there any any further questions from the panel thank you thank you your honors kathleen sullivan for the shell intervenors i'd like to begin by agreeing with the court that there is no basis in the record to suppose that shell claimed a ninety percent recovery rate and so that is not a basis for finding bessie's approval of the plan improper here shell claimed the recovery capacity as it was required to by the regulation we have room for this many barrels a day in relation to this many possible discharge barrels a day that was what shell reported and what shell said about the shoreline was to conform with an alaska consistency require that asked you to talk about the shoreline and all shell did is say if ten percent reaches the shore here's how we'll deal with it it didn't suggest it would recover the other ninety percent the other ninety percent would simply not reach the shore as your honour's pointed out there's no question that the record says that shell did not claim it was a recovery rate that's at s c r seven twenty in response to comments shell says shells plan does not present a ninety five percent recovery rate it does not assert any recovery rate honour's pointed out bessie didn't think it was a recovery rate that's clear from as he r seven thirty seven in which bessie said in accordance with state of alaska regulations shell assumes ninety percent of the oil will remain offshore doesn't mean it will recover it nowhere does shell claim that they would be able to collect ninety percent of the oil released in the blowout so sheltered to certain ninety five ninety or ninety five percent recovery rate bessie didn't rely on it and that is not a ground for rejection of bessie's reason determination here so that's point one i think it's dispositive uneasy let's turn to the core of your honor's questions about whether bessie had a non discretionary obligation to approve the plan if the regulatory requirements were met because if that obligation was nondiscretionary that decides both the e s a challenge and the need to challenge and i'd just like to refer back to your honor's to the statute and why we believe in agreement with the government that the statute is quite clear the authorizing statute is quite clear that if the response plan contains factors in the checklist and if the gauge in c has determined in its exercise of discretion that the factors in the checklist are submitted in the plan then bessie shall approve any plan that meets the requirements the o s r p approval is just one small part of a multi step process and your honour's in answers to your concern that well when do the e s a consultations take place about effects on endangered species they take place elsewhere in the process and then answer the question when does the new analysis take place it takes place elsewhere in the process but what the n g o s are asking you to do is quite extraordinary it's to impose a for the first time a new duplicative layer of e s a consultation and need to review on a checklist statute a statute that's just about making sure that shell has adequately told the government here's what we have in our tool kit to clean up a spill we've checked every box we've shown you what we've had that is not a point where consultation should take place it would be duplicative that is not a place where require the bureau to perform an analysis your honor nepa does not require the bureau to perform that analysis in answer to your first question your honor no the agency does not have discretion to decide among alternatives for oil respon plan at this stage and the reason is the mandatory language of the statute the president or in this case i shall approve any plan that meets the requirements of this paragraph that is that reports the capacity to clean up a worst case discharge as in the six factors in section d so there is no discretion at this point to decide among alternatives and your discretion is just side whether it meets the standards yes absolutely or no not meets the standard whether the factors required to be reported in the plan have been met there's discretion to decide whether shell has answered the questions it's required to answer is there any discretion deciding whether shell has responded appropriately if there's discretion to decide if shell has answered appropriately as to the factors and there is discretion to decide as the government just said we're in agreement there's discretion to decide whether the factors one through six in section d as interpreted in the regulations and thirty c f r two fifty four point two six for example with respect to worst case discharges discretion to decide if the factors of the met but there are not there is not discretion at this stage to engage in other forms of analysis and if you have any doubt on that then you should give at least hour if not chevron deference to the government's own unnecessary burden some layer of consultation it would be because that consultation takes place on wildlife with the wildlife agencies not only in the area contingency plan as my colleague from the government has ably pointed out to you it also took back your out took place runners back at the lease sale or wonders when was the consideration of oil spill cleanup consideration of the effects of oil spill cleanup on endangered species was that ever considered in consultation with the wildlife agencies yes  honor it was considered in the biological opinions at the least cell stage they considered not only the effects of the spill but the effects of the cleanup of the spill and if i could refer your honour's because this is important this is a place in the record where this consultation did take place it's twelve forty one to fifty five twelve sixty seven to thirteen zero one and s e r five thirty seven to eighty seven so your honor we're not saying consultation should never take place we're saying it's a many tiered process many step process it shouldn't take place here same thing that consultation sorry the analysis also took place at a prior stage and you can find that very easily if you look at s c r seven six nine to seven seven to an s c r thirteen forty six to thirteen forty nine those are the so called documentation of nepa adequacy reports where the agency said well we did our need analysis back in connection with the lease sale and back in connection with the exploration plans and so we're looking back to that prior nepa analysis we're not going to repeat it here let me address a couple of quick points briefly first with regard to deference to the regulations and the agency's interpretation there is no regulation here that governs the agency's approval remember there is a two step process shell proposes a cleanup response prevention plan and the agency says is this good enough is it good enough for a particular facility this is for a particular operator and so the agency's decision here isn't just yes that the checklist suggestion there are words on the page this isn't about words on the page do those words represent the substantive mandate and fulfill the mandate that this agency has under the clean water act the regulations do not address that issue and as a result there would be no difference old but it's also inconsistent with the agency's own actions in this case of course this is a case of adequacy is this good enough there's nothing object of about how many boats or how many needs not just the regulations as the government now and shall pointed out it's really statutory because thirteen twenty one j five d says that the plan shall meet the six obligation and yet they suggest consultation attaches to that decision but let me point to home builders and why it's different than home builders the section of the clean water act at issue in homebuilders prohibited the agency from considering impacts on the environment or on listed species congress sought to delegate and the and the entire policy behind the permitting process was to delegate that authority to a state agency here which are being asked by the government and shell is when the agency decides whether a company's prepared to do everything possible to protect the environment to protect wildlife to the maximum extent practicable it doesn't consider the environment it doesn't have to consider impacts to the suggestion is nonsensical with regard to two quick points and this is the importance of the area contingency plans the obligation to be consistent is is is not really the driver behind these plans certainly they must be these plans can't be operating inconsistent with the government but the standard unique to these plans is the maximum extent practicable standard and after exxon valdez congress imposed that solely on these plants and this agency alone decides whether that standard has been met these plans are unique in that regard but point to the federal government's own spill plans those spill plans at mit that in the arctic ocean shell provides all of the spill response equipment there are no federal resources available the coast guard's roughly a thousand miles away i point to e r five one seven b the major port a more than a thousand miles roughly thirteen hundred miles away if shell doesn't have it it will take weeks if not months to get those resources on site the suggestion that these choices can affect endangered species or the environment generally is also unsupported by the record here this agency has allowed shell to keep it near shore response assets hundreds of miles away not even in the same sea it's in a completely different see that this record has demonstrated could be prohibited from mobilizing between the two seas because of adverse weather conditions in  ocean but let me point very briefly to the issue of skimming capacity what you what you'll hear referred to as effective daily recovery capacity your honor that is one piece of the equation as the plain language of the regulations makes clear i point you to two fifty four twenty six d the effective daily recovery capacity addresses only skimmers how much oil can move through that skimmer it doesn't address people or both or boom or what areas to prioritize over others it is one piece of the puzzle and as we learned after the deepwater horizon it's all too easy for oil companies like shell to claim and inflated as the national oil  commission noted and inflated but utterly unrealistic expectation as to skimming especially in a record that demonstrates that adverse weather conditions in the arctic ocean will render spill response impossible for a vast majority of the summer even in the warm water or the warm season pardon me and impossible of course the rest of the year as the arctic ocean freezes over your honor we ask that you give your honour's we ask that you give this section of the clean water act the fundamental and paramount importance congress intended these plans are unique these choices are important and they affect the environment and they affect the people on the north slope of alaska thank you very much how some thank you talk out to be a very helpful argument in this case of the matter stance of bennett for decision by the court will be in recess for five minutes thank you