you there is a judgment in that in fact if you look for it to be right so i think that's a great argument but let me move you back because i'm just trying to get an answer and i maybe you don't have it like imagine writing me opinion how do you draw a or your twiddling about resources personnel it satirizes your argument well there's some discretion or judgement in there but it's not related to the environment in other words there might be some discretion there might be or some judgement to be made here but not about environmental or species concerns is that your argument larry sorry no i'm sorry you mean that gives the employer if you can what is that example circumstance i haven't seen a case that raises the situation but you could imagine a situation to protect a species that's simply not among the six criteria d in our case it was not among the criteria in the d d in the homeless case and that's why the essay d did not apply there does not apply here mr come on thank you oh yes i'd like to make the point that these firearms only apply until e p a and the coast d guard which are the primary agencies designed to that with the responsibility to address releases until they d get on the scene once they're on the scene these plans do not apply so again not only is the discretion limited but some say has no role once a release occurs in consulting with  wildlife or addressing issues and rather environmental d issues they have no role at the time of the release they have no role at the time of the consideration of whether d a plan should be approved ok thank you m was writing a remedial ma it was responding to not only a terrible oil spill but it herbal oil spill response in the case of the exxon bell these and one of the most important aspects of that law was that we get all of this figured out in area and the primary responsible and the very st one to be implemented which is the private oil spill response the other government agencies don't begin until there is an issue or they have the help and resources you if you look at that even if you look at the regulations clearly what congress has in mind here is protection not only by the way of species i mean byron i mean we're also very concerned about private property and property beaches and shorelines know my reading of the supreme court opinion there is that they did not find any room for discretion in any of the nine criteria what they said was those nine criteria were mere triggering events it was it's a very kind of object criterion from the endangered species act which came which came later and there were obviously concerns about repeal by implication cetera so i actually admire in my reading of homebuilders you really can't find any bit interesting we just didn't they draw a line between judgment and discretion and your honor i don't i don't think they did but to the extent that they did this is the way that i understand to function  discretion is really just does the agency have the ability to shape the end product and in a way that benefits the environment and species that even if he has no ability to shape an end product then there's no exercise ok i think so when you when you draw a line between judgment and especially don't think the court didn't handle i don't i don't think they did your honor i think ultimately when we think judgment what we mean is sort of technical and environmental judgment so for us that we use the term judgment i think what we're saying is technical and environmental and expert judgment that you need after the statute after the law has had complaints language that provides the question to shape the plan and in other words discretion refers to whether the stance you allow the agency to shape his plans judgment is required in the actual shaping up so one final question i'm sorry say your argument is if there two things one i agree that if you have multiple factors or standards some of them are mechanical and objective one of them requires discretion that that is enough now by definition that means that the scope of any ne from ultimate and the charge of oil if you look at those factors they couldn't be any more different than the factories in homebuilders and in public service and for volleying reasons st of all these factors of course come after builders about something being and in itself these factors have species and environmental protections as ends in themselves that's what is jay bybee criteria are all about we're not trying to could happen there are a lot of different ways to deal with oil in water in some ways you want to remove it from the surface as quickly as possible to prevent perhaps burning that would cause air pollution but it would remove it from the surface quite quickly you have some would st of all have not only the agency itself but the public commenting on whether birding or allowing it to fall into the stream bed would be a better idea depending on where you are in the water body it could be that there are  very close by to any area that they might want to burn and they decide you know what this is not a good area in the water to bring the oil because it's going to cost pollution and they get into those nests let's let the oil fall to the bottom we can live with th and it's not them jane and endangered species but the question i still have is at the end of the day the district court found that all the criteria were met right and so at the end of the day if all the criteria are met and the planned to meet the question for standards and also that there wasn't sufficient explanation maybe now the court found in our favor an explanation and the court said that we simply didn't supply enough information about what was lacking in the plan for the court to be to to decide in our favor and to decide that there was something wrong with the contents of the car it was never faced with specific arguments from us about what was wrong with the i m s number one number two  said you know what that no matter what is there they're still going to have to approve but the point is that films are can require amendments to plans the statute says that expressly that if the special jury factors are not met they can require amendments so court found that there was this russian now if you look at the statute in that case spencer it requires the federal energy regulatory commission to approve a license if among other factors it's found that it's in the public convenience and  discretion matters is in that is in that initial evaluating one whether the criteria are met to how to shape the plan or the lessons for the permit to make sure the criteria are met in other words altering the proposed plan or ways to make sure that those criteria are satisfied that's where discretion lies it doesn't lie after you determine criteria are met and then you're going to add something on and i think if you look at home builders and public citizen they're very clear about that they would have been in homebuilt there's i think they would have been happy to allow or a review had one of the criteria require that kind of discretion but instead persuasiveness when you have a stance you criteria are clear on their face that they're about the environment and allow the agency to alter the plan that improve the environment  thing for us to worry about in our use of language when we write this opinion however it comes out because one thing that occurs to me is that if if we hear some sort of better or if there's any problems with going forward as it could be potentially that we're doing this a little more often in the near future at the very early and so we would love your back and finally i want to thank you for the excellent arguments