good morning your honor sir please the court my name is christopher winter and i represent the petitioner alaska eskimo whaling commission and i'd like to reserve five minutes for a bottle this morning if i could your orders were here today because the discharge of up to one point six billion gallons of industrial and human waste allowed under e p a s general permit could disrupt traditional subsistence uses in the beaufort sea that have been taking place for the last two thousand years a w c s interest here is to find ways that oil and gas activities can move forward in the beaufort sea while ensuring protection for the subsistence activities the most fundamental problem with the peace decision here your honour's is that its conclusion on under reasonable degradation is not based on the appropriate statutory criteria in section four three of the clean water act and the permit incision this contains three central areas that i'd like to discuss this morning the first error is that he provided no detail findings on impacts from the specific this charges on preexisting subsistence uses of the beaufort sea the second fundamental error is that e p a then failed to balance those impacts against the benefits of discharge as required by its regulation and the thought that conduct an analysis of the alternatives to discharge and instead relied on monitoring the collection of future information and the ability to reopen the permit on the first point  the record contains extensive input from the local communities based on their traditional knowledge and direct experience in the pristine arctic that this level of discharge and particular eighty four million gallons of non contact cooling water in the subsistence hunting areas is likely to deflect bowhead whales and that traditional knowledge is based on previous experiences with other drilling operations that occurred in the same areas in the eighty's and ninety's there is no other available information could point to in the record in support of a conclusion that the flexion will not occur and i think this gets to the notice of error that the agency submitted with the court yesterday morning in which it admitted that the only modeling result you could point to at the time of this decision in fact don't address non contact cooling water at all more clued in if i understood a letter they included that in that for what i thought they were correcting i maybe i have it wrong but you can like me yes judge can be thank you for that question and i think e p a and it's notice implied in that document that was filed yesterday that table six that was attached provides a different basis for e p a s decision and conclusion on the impacts of non contact cooling water so we have two responses to that to that issue the first is of course it's not up to agencies council now in nine months after the close of briefing on the eve of war the argument to try to rehabilitate the agency's decision we need to see itself now has admitted that its original this decision documents was wrong as a matter of fact and so we this is a classic example of a post hoc rationalization where agencies council says something that the agency itself never at any point said in the record th table six discusses or provides any information on the impacts of non contact cooling water so frankly that's why we did not attach it to our further excerpts the agency had never mentioned at all at any point during this decision making process as providing a basis for it we frankly don't believe that that's relevant based on the appropriate standard of review but getting to the substance of table six your honour's with that information provides is a list of three hundred dilution factors three hundred dilution factors that range in values from less than one to more than three million the agency never explained which one of those three hundred dilution factors would apply to these particular discharges the agency never explains in the record how hot the non contact cooling water is when it comes out of the drill agency never explains or replies that dilution factor and then never tells us what the impact on the temperature in the receiving water is and so those dilution factors alone cannot provide any information for us sitting here today to understand and identify how the agency would have used that to reach its conclusion you cannot tell me if i'm wrong in understanding the the basis for the agency's original decision i think i remember this from the briefing rather than from the underlying documents right and so they suggested the boy that's not going to have any impact on the whales coming and going so i assume from there or submission of these tables to us in this letter that somehow all of these numbers support of that proposition i couldn't for the life of me figure out how that would be true so i just interested i'll ask them but i mean she doesn't mean what you have to say about that judge wofford the first point i would make is that in the record in the decision documents themselves and so the most important decision document is the deflection may occur as a result of the discharges and so that some clearly set forth in the o t c in determination to conclusions but then in the response to comments which was a separate document e p a said well we looked at this through the modeling results and said it'll be six hundred to one dilution at one hundred meters from the drill ship and that's what they also provided in their response brief they provided that same explanation so then in our reply brief in preparation for i will reply brief we went back and looked at those modeling results and tried to go through the same exercise i think you referred to earlier of looking at those modeling results and trying to understand how the agency got to that conclusion and then when we brought it to the court's attention that in fact those results don't address non contact cooling water at all  they address drilling related cuttings and drilling fluids and so now the agency in its notice yesterday didn't state either way how table six the new information provided would reflect or inform its ultimate conclusion it simply said here's some more numbers but there was no other articulation of what those numbers mean and that's also not in the record of course that's the standard of review that the agency provide that analysis on the record before its decision and so i think this is the situation i think you are your honour's begs for a real man to the agency to clarify the record and so the second point that i would really like to make about this issue is that i think it's important if this panel in court does intend to remain and for clarification of this issue that it also provides some guidance to the agency on the political criteria to be applied under section four three and the findings that need to be made and i ask that because if that the court provide to the agency and they are consistent with the three points i raised earlier i think the first and most fundamental instruction is that in section four hundred three of the clean water act congress articulated a criteria distinct from each other so there is response that is that what he did here is that it conflated the analysis of alternate uses impacts alternate uses with its analysis of human health risk and ecological risk and so if you look in the ocean discharge criteria evaluation again and the excerpt of record at page three fifty seven this is the key point in the record where this takes place and what he did here is it discussed impacts ecosystem diversity productivity instability so that ecological risk threats to human health through direct physical exposure to the discharge pollutants or indirectly through consumption of exposed aquatic organisms so that's human health risk but there is no separate and distinct analysis of impacts agency did directly against the stature because the statute requires them to public regulations and it the regulations are what what kind of need to be followed in this case  is there anything as i look at the regulations i thought that they seemed to cover the things that you wanted covered from the statute and what is it in the regulat what is it in the regulations that doesn't cover something in this stack you and is that an attack on the regulation which maybe unkindly just can be as we discussed in a reply brief this case most certainly is not an attack on the regulations  the first thing that i would ask the court to look at is the statement that he painted in the preamble to the regulations and this is that page eight of the preamble attached to our opening brief and their e p a stated explicitly the time it issued regulations that the statutory anything about chevron there that your honor i think that the statement from e p a in the preamble has to be read in the context of the regulations themselves to understand why it's a meaningful statement for u p a in the preamble to say that the statutory criteria apply directly to decisions that are made under the permit and that language is is frankly i think fundamentally consistent with the position that the agency is taking here which is that the court should simply ignore the statute a little bit the part you read said that they have to buy this tank you directly can the action from sorry i thought when you read the preamble i didn't hear the language that you just characterize it as having that you have to apply the staff you direct know judge can be the other thing that would ask the court to look at is the actual plain language of the regulation itself and so the regulation is section one twenty five point one two two and there there is a list of nine criteria that were developed by the agency the ninth criteria is such other factors relating to the effects of the discharge as may be appropriate ok the catchall what did they do it yes your honor so that's a catch also i think that renders the statutory criteria relevant for the court's analysis and for the agency's analysis and here your honor that the agency never determined whether these just charges one point six billion gallons of discharge will cause these isolated communities to change their subsistence practices to forego collecting future in the subsistence use areas they see never issued any detailed findings as to whether these discharges with the flex but it will some subsistence hunting grounds and subject my clients to great risk having to travel long distances in  i'm just reaching for the extra because i want to be able to read a quote directly from the ocean discharge criteria evaluation for you your honor and it's a page your three sixty two to three sixty three from traditional migratory paths might result in adverse effects on subsistence communities might if subsistence related marine resources move farther away there is the potential for increased risk one hundred safety farther distances and the deflection could reduce subsistence harvest and then and that's it and then the agency says to address these concerns on an ongoing basis they just never said it's unlikely to occur they don't she simply said to address these concerns on an ongoing basis and and that in the that's right but again there's no there's there's no comment from e p a conclusion that deflection is unlikely to occur if you read that paragraph your honor and i think that also then begs the question what modeling was e p a relying on and it seems to concluded we don't think it's going to but that's why we're going to monitor this and if something changes then we'll we'll revisit this so your honor i believe there is in fact hard information in the record that deflection will occur and that is in the form of traditional knowledge from my clients and that's based on drilling or is based on something else that's based on the effects of past drilling operations in these exact same areas of the blue for sea from the eighty's and ninety's in which communities there are other other restrictions here are those the same restrictions that were in place in the eighty's the ninety's or is this something different going on your honor in the eighty's and ninety's i can't speak to what the precise mitigation measures were that were in place we know that th activities in the ships ships were on site through the fall hunt and that is the same activities that could possibly take place here which is the drilling ships remaining on site in the same locations the same locations the same prospects on through the fall hunt and so we don't believe there's a material difference based on the terms and conditions of this permit and that's the fundamental problem here your honor is that the discharge of all this non contact cooling water in the middle of the hunting activities is the same type of impact that would have resulted  good morning my name is dan pink cinnamon attorney with the u s department of justice and i'm representing responded e p a in this case one of the first things i'd like to bring to the court's attention is the degree of  efforts to understand what the north slope communities were concerned about in the granting of this permit e p a under took extra extensive efforts to try to figure out what the traditional knowledge is what their concerns were involved quarterly presentations of the last eskimo whaling commission they went to the north slope they contacted the north slope borough other boroughs they held meeting community meetings among other things they conducted twenty traditional knowledge workshops which included seventy three individual interviews and i guess i'm left wondering why you the agency even bother doing that because it basically gave no weight whatsoever it seems to me to the information that was disclosed to us well i have to disagree with your honor's mehta factor a number of things that came out of a decision or out of the information we received there were changes in the permit for example in the proposed permit for example now there is a complete prohibition on the discharge of drilling fluids and cuttings during the fall head hunting season in the prior of the permit that was proposed there was a process by which the driller could come in and try to make a case that they should be able to to discharge those fluids and so forth so we did listen to what they had to say i guess i'm thinking in particular of course of the no evidence statement that has been challenged here so maybe you can address that because i even looking at the statement in context it seemed to me you did have it or not you but the agency did have evidence in the form of traditional knowledge and yet the agency said no we have no evidence that bowhead whales will be diverted at all well first of all i'm not sure that there's any scientific evidence for us as the petitioners put western science evidence and there is some anecdotal reports that we reported in the traditional knowledge workshops but there are a number of factors that le basically temperatures will be back to normal within some very small distance well your honor you see that we submitted a letter and the reason we submitted a letter is because as we were preparing we understood that while the referee there was a reference to a case thirty three was mistakenly we mistakenly said that that modeling result which actually dealt with drilling fluids was applicable to other non drilling fluid discharges but in fact so we felt that we needed to inform the core of that there's also states in the record of various places that this case thirty three of the six hundred to one dilution show that there would be no a factor of little effect of the non drilling flu discharges but when we went back and looked at the technical memorandum is why reattached table six we looked at the technical memorandum that was done in preparation for issuing the general permit we found that actually there had been modeling of produced water save me of cooling water which is among the non drilling fluid discharges and table six it does show in a number of cases of one hundred cases something like and no it's only to take a moment and it's easy the information we obtained from industry was that the average temperature difference between the ambient se the discharge cooling water is one point five degrees celsius now that can have you know that can be very according to the size of the outfall and how much the volume and so forth but basically that's the starting point as a one point five degree difference so then they took these various inputs and if you look at the table six effect of water depth ok how deep is the discharge and where is the outfall coming out the current speed well they look to different cases how fast the hundred thirteen thousand barrels a day as a case and if you move over you see a dilution factor and we did it ten meters from the discharge one hundred meters and a thousand meters and the way you figure it what this how this works is you take the dilution factor well first you take one point five degrees divided by this numerical dilution factor and the end result tells you how much temperature increase is still there at ten met one hundred meters at a thousand years and in almost every case it turns out that we would be meeting or the industry would be meeting state water quality standards which say that in this these state water quality standards not just to the drilling in the state waters but also in federal waters and they're actually more stringent than the federal water quality criteria but here's the thing you can't increase the temperature in the ocean more than one degree celsius on a weekly average basis and you can't increase it more than half a degree in an hour if you must if you go through this it shows that the water quality standards are being met in almost every case and i should also say that this modeling is actually conservative because it doesn't include we talked about this in the technical memorandum that's before the court now i conservative because it doesn't include the effect the jetting effect which is if you're shooting the water out faster it dissipates faster so we took a very conservative approach here and what this shows is that in essence it's not no effect in every case one hundred meters it may not be six hundred to one it may be higher than six hundred to one but the bottom line is that with this cooling water you have  dissipate of the temperature very quickly now it wasn't simply just the modeling of the six hundred to one that we relied on and saying well there's no unreasonable depredation and that we don't think that bowhead whales migration be a problem there are other factors here too one is that the general permit only allows five drilling sites per lease area which is three miles by three miles only expecting somewhere i can read the precise figure but it's like eighteen to thirty four exploration wells in the whole beaufort sea and as a matter of fact as to now there haven't been any and there's not expected to be any in two thousand and fifteen  shell council here it can use here and i've yielded five minutes to them and i can explain i don't know they were in charge of the permanent than that though generally no no no it has to stand or fall on whether or not we met the regulatory criteria the guidelines and we went through those guidelines in great detail and just as an aside i think it's straight plain statutory interpretation for a three does for a three says e p a you go regulate this and here's some things you need to think about when you regulate it but the actual what the agency has to comply with are the regulatory guidelines not the specific statutory  factors that are listed in in four zero three e p a did its job it looked at the statutory factors and coming up with a wide lines let me ask you this do the agency ever actually quantify the benefit of the discharge is subject to the restrictions of the petition or want to hear what the agency did was in going through all of the factors that looked at the it looked at the likely effects of the discharge or at least the possible effects ok i'm not talking about the negative effects on that site i'm talking about the benefits because it just under one twenty one twenty point one two one ether you have to do the balancing right and you've got to determine that we make sure if the wind was right here the last of us that it recreational scientific or economic values which is unreasonable in relation to the benefit derived from the discharge and i guess i never saw anything in any of these documents were the agency actually calculated what's the benefit of the discharge subject to the conditions because what if it was minuscule what if the cost to shell was one hundred dollars per well of imposing all of the restrictions that the petitioners asked for then it would seem to me that when you're doing the bouncing boy if there was even a little bit of harm on the other side if you just have to say that it was unreasonable in relation to the benefit derived will only come around to that a little bit differently and that is the the three factors in the definition of unreasonable discharge are incorporated into the guidelines so that i stand there is that provision and i don't i'm not aware of any place in the record where e p a said well there may be five billion barrels of oil here and it's going to cost shell this amount of money to look at it or look for it and i'm we're going to balance that against there could conceivably be deflection of bowhead whale migration no we didn't do that and i think we needed to do it well but it's not even that i'm not even talking about there might be five billion barrels of oil under there the plant the petitioners aren't actually trying to stop the extraction of that oil altogether right they're just saying when you drill these exploratory wells can you please impose these additional conditions and it seems to me it was incumbent upon the agency to figure out ok well what would the cost be to the operator no no no but your honor it's not incumbent on the agency to make the economic decision whether or not it makes sense for shell to go out and look for oil there the clean water act is set up in such a way that if you need to conditions in the ocean discharge criteria evaluation other documents was to try to figure out what could go wrong here what could be the problem and e p a did that at great length and the record includes biological evaluation of how it will affect threaten their endangered species involves a technical memorandum all the modeling it involves the ocean discharge criteria evaluation it involves an equal environmental justice report which we went to a great light a candle just i'm sorry to put you back to it because i still just want to i don't have a feel for what your answer is it says that your regulation agency regulations that you have to balance the loss against the benefit to arrive and i'm just saying how can you do a balancing if you don't know what's on one side of the equation and you're you're basically admitting now we never tried to figure out what the actual benefit side was so how can you measure that can you balance that against a loss and come up with any rational out to some extent though the  benefit here it would be and i'm not out it's not a record obviously that can't be the basis for the agency decision some sense but we're all aware of the importance of oil and gas exploration ultimate production and the ocean discharge criteria are an attempt to in a sense allow these kinds of activities to go forward but while maintaining the environmental protections that are required i don't think that i think it's too narrow reading to say that if there isn't some economic evaluation of whether or not it makes sense for shell to do this without us knowing what i'm talking about i guess you keep coming back to that and i'm not saying that's the agency's job that shell's job right they're the ones up the vessel accountable i'm saying that your job your agency's job is to balance the loss the potential loss against the benefit and it seems to me the benefit has to be measured by ok they're still going to be able to do this right nobody's talking about shutting down while export exploration altogether it's just there's going to be some added cost presumably right which is why i assume shell is you're resisting this and don't you have to at least figure out what that cost is to then measure it against the laws i don't think so your honor i think that if we go through and i understand what you're saying i think if you go through these guidelines and what e p a really did here was to figure out what could be the problems what is the what is reasonable or unreasonable degradation of the ocean environment and it's important to remember this doesn't directly respond or question but it's important to remember that the standard is not no degradation the standard is unreasonable decoration and e p a proceeded under the portion of the regulations of says we have enough to know that there won't be an reasonable degradation here if we don't need the monitoring to do that if it makes sense to do it it could possibly during the course of you know if there is ever any drilling up there it could inform the agency in such a way th problem is molly's not working whatever that could could have an effect but we knew enough through all the work that was done to realize that it was not an unreasonable degradation and it's not just because of the toxicity of the discharges because we're talking about discharges in a small area and in it's these the animals that they're particularly concerned with bowhead whales are migrat they may pass through they may or may not ever encounter one of these drilling rigs we don't know really i mean despite what's been said we don't really know whether there's any deflection as a result of  cooling water from a drill rig ten miles away that's not known did you have to figure that out before you can issue this permit no i don't think you have to figure that out because the standard is reasonable this is not there is nothing in the in the  clean water act that says if a whale migration might be deflected you can't go forward with the permit and there in line to the e p a did an elaborate biological evaluation of the effect on endangered species including good morning when in skull park i'm here today on behalf of show i think just want to touch on one thing specifically in regard to why we're here we're not here because we are unhappy about the general permit itself and think the general permit as it's been developed and implemented by the agency is perfectly appropriate for regulating just charges and in the broad beaufort sea it's an area of several hundred thousand square miles our position here is that the restrictions the additional restrictions that the petitioners here would like to impose on the agency through the permit are not appropriate the permit is specifically designed to provide the agency with flexibility to address issues that specific locations that a company might step forward and propose operations and i think with the agencies done here with it option of this general permit is appropriate they adopt they've adopted they've done a proper analysis to determine there's no one reasonable degradation which gets the nod of the step of having to do the balancing in the additional alternatives and also it doesn't because that's the right the portion the regulation i just quoted from is the definition of what a reasonable degradation is so in less you've done the balancing at least as to that third factor you can't make the conclusion that there is no a reasonable degree question let me address one issue that came up earlier in the argument your honor and that was this question about record evidence in fact we've got thirty five years of activities industry activities in the beaufort sea those thirty five years of activity of informing you can see in the development of this journal permit we have multiple general permits that have been in place prior to this that have been litigated prior to this and what you have before you now is largely informed by all that prior work the private again and in the permits been greatly refined to reflect kind of the current current best practices for operations in the arctic and as for the evidence record evidence as to what's out there and what impacts are out there there is tremendous amount of evidence about the industry activities discharges associated with those activities in the fact that there is no no significant no impact to the species that are in the area well that is not the what the traditional knowledge reflexive all the traditional knowledge is out there is well your honor but but there's also the evidence of all the other activities that are out there that it's got to be taken into account as well in the context of developing the permit why it why shouldn't we i mean i guess it seems a little bit odd to me that your client has been willing at least for one season to agree to the different restriction so it seems like should we infer from that it is feasible for your client to continue these activities subject to these restrictions and to my point and just as i started my presentation on to the general permit provides the agency with broad flexibility to address specific  significant amount of subsistence activity we need the decision shall make the decision to work with the e c and come up with an approach that would that would correctly address the issues and circumstances presented by our planned activities that could be completely different if we propose activity somewhere else in the beaufort sea where there is no subsistence activities where there is no evidence of whale migrations and so what what is appropriate for the location that had been proposed in cannes and they might be something completely different for a location proposed several hundred miles away and here since they are snow day with the activities are different the physical environment is different and so the agency we think that the the general permit approach here and what the agency's done the adoption of this general permit is is allows for the flexibility to address the specific issues that that the agencies the companies and the local  communities are going to have to deal with ok but this is just a cost issue right at the end of the day you don't want to have to eat i mean you voluntarily agreed in this one instance to comply with these additional restrictions you don't want those imposed upon you as a matter of law by the e p a because it's going to cost more i assume to engage in exploratory activities well it's not necessarily just a cost issue it there are also risks associated with with me teenie these materials that are that are collected and  held on these rigs then and there's also practicality issue when we're looking at things like non contact cooling water that's the relatively a large volume of of discharges and that's not something that's easily maintained in held on a drilling platform they're not asking you do that as i understand they want not know discharges of certain pollutants if we're going to call them that but they're not i don't think they're saying you have to capture all the non  water again it's the permit provides for a real a d m a nation of the specific program what all the discharges associated with that program will be until uring of the tailoring of the discharges or what you were not going to be allowed to discharge based on specific factors that's present how about just not doing this stuff in the fall during the fall hunt season i mean that that to me seems to have nothing to do with any additional risk or any whether it's feasible to engage in activity if you could agree to that condition in one location why would you be able to agree to an all of that well again the general permit covers a broad area in several hundred thousand square miles in the arctic are operating season is very limited based on weather conditions and ice conditions and so the fact is that the open water season the time within which we can operate happens to overlap with the fall subsistence whale and again the subsistence whale hunt that's of well known quarter or where the activities are happening along along the north slope of alaska in beaufort sea and the company's work with the work with the v c and we've worked i think cooperate fully with them to come up with appropriate modifications to our programs to address the specific issues that are encountered at these various locations but that again is the beauty of the general permit the general permit again cover such a broad area that you can't come in and say ok one size fits all for every operation across this broad area this is this is what you're going to have to do with many of these different discharges you can modify what you're going to be allowed to discharge which are going to have to hold on the vessel based on the specific facts that mr parker referenced the previous wells that have been drilled in the arctic insist that there was some body of evidence or data that the agency could rely upon in fact there's been thirty one exploratory wells drilled in the beaufort sea this is an excerpt of record page three thirty three  also the record reflects the e p a lost the data that resulted from those drilling operations and so that also is reflected in your three thirty three also to your five fifty five and e r seven forty five and so the agency did not retain the data from those previous drilling operations your honour's with respect to judge was first question as to the seasonal restriction and whether that could be incorporated into the general permit absolutely a seasonal restriction can be incorporated into the been easy for e p a to design a seasonal restriction that had geographic limitations based on the input from our clients as to precisely where their subsistence activities take place and there is no provision later in the permian process when a notice of intent is filed for to come back in and impose those kinds of restrictions and so this is the only time the agency has the chance to do that and finally your honour's with the few seconds i have remaining mr pinkston attempted to provide an explanation of how to interpret these three hundred dilution factors suggested that there was some starting point of difference in ambient temperature between the discharge of the receiving waters at one point five degrees celsius and if the court should take it upon itself to then run those calculations to try to understand where the agency was going mr pinkston did not provide any of us any citations in the record for any of that information frankly apart from this discussion there's nowhere we can go in the record to understand where the one point five degree figure comes from how those