not the time of the year and that's part of the reason they want to do the project you know i'm asking with their evidence of this with their habitat in this area where the right of life is on sex and the prize that yes you're on it it's not i mean you don't know exactly where that understand exactly what argument you're pressing in this emergency motion in the district court he considered three arguments segmentation cumulative impact and then this issue of whether one of the projects that the agencies did not have to follow the c e o regulations in particular fifteen zero two point four and fifteen zero point two five a you tube you know you're saying we shouldn't consider the c e q when doing the segmentation i'm saying that under the law all the the agencies have had to consider that they didn't they don't because they don't argue otherwise and the district court said they don't have to consider it because under his analysis  the a rigs supplanted those rigs and they were applicable here to me this whole segmentation question is i mean it's we have to follow the law but it's all sort of beside the point at the end of the day because as the  and you do follow the c e q regulations in determining cumulative impacts and they require you to look at reasonably forseeable future and so why aren't you focusing on that because it doesn't seem to me that they did actually whether it was improperly segmented or not they did not actually consider the cumulative effect of all that is our argument your honor this idea of segmentation segmentation was one of our arguments but what we're saying is they had to consider the cumulative actions these three sets of actions the environmental impact of the i'm under fifty a fifteen point two five eight two which speaks of actions and having to look at the environmental impacts of those in advent that is our argument we are  technical me well we focus on the fact that they didn't do a cumulative actions analysis under fifteen zero eight point two five your honor mentioned the technical memorandum that is in the record i'm going to pick it up just a second he only addressed that under the cumulative impacts analysis done in the intersections project finding no significant impact if you look at that and then you that's what i'm saying that if you intersections and some room up some things connected directly to intersections like lips her development in the area but that is devoid i mean it doesn't even mention those are two projects so that is not a substitute for following fifteen point two five two in particular which talks about gee what the banks and and they didn't look in the intersection project there is no look much less like lansing much less a hard look at the cumulative actions of these three projects which are all going on in essentially the same time they all started the analysis of all of them started in the spring and early summer of twenty thirty one in april one in may and one in jean they already had separated them and decided not to address them as one for the actions and department impact of those cumulative actions they decided that early on and they never came back together and put them  together but these three actions are all being looked at at the same time and evaluated the same time planned at the same time they're going to be constructed at essentially the same time and that is exactly what the cumulative actions required to fifteen zero eight point two five eight two say three pieces to be of one piece and that can be found it's best say it in the in the traffic impact analysis in the traffic impact analysis they looked at all three pieces and i just want to read this is not in the record excerpts but it's in the divots in the trial as your honor understands we were going pretty fast here but in the exhibits in the trial it's our exhibit one at page twenty four and twenty five they say in response to public comments in the intersections administrative record the pieces they cite they looked at the traffic impact as one piece they considered all three of the em to get then the next twenty five of adding exhibit one to our application for mirroring junction the next page they say in a court this is they take the other tact with the environment in accordance with tech stocks policy this project was not analyzed in light of other past present and reasonably foreseeable future actions such as sh forty five southwest  regulation highly i can't speak directly to a highway case but i don't think it makes a difference here's where we're at and we're at a point to run there i think for cases i can talk about that come to mind qui distinguished other cases from the situation in front of it then when it found not improper segmentation and it turned around and said unlike here those case which required a broader analysis those cases involve a continuous course of action which is not present here if the segmentation rules supplanted the requirements for g motive actions analysis the court would not that the district court decided segmentation rules were it was ok to segment this way the court said that look the intersection project by itself has independent utility we have questions about that but put that aside for a second the court did not look at any connection between sh forty five southwest and the express lanes and intersections it looked at no connection there so if the segmentation will stro own the other side said well that was a segmentation but the court specifically says we quoted it it's a page thirteen fifteen of the river keepers decision they start off saying instead ferk which was the agency the distinguishes the highway cases as we've been quoted the agency specific regulations that govern in the context of a federal highway project then they they do rely on the regulation you're siding with they say here that means we have to apply that regulation distinguishing it from the highway well ok it just seems as if your discussions already revealed how complicated this area the law is why should we have to test it just it just seems to really complicate i agree united we we have to ourselves have knew about this you months and you have to test because of what i said earlier if you do the segmentation analysis and it's done for instance in the independent utility context that the district court for the intersections project you factor is there is no real harm to the agencies from what we're the injunction we are asking for again him it's in our record excerpt at page eighty seven it's from the intersections administrative record the agency specifically tell the public construction should begin on the sh forty five south west at around the same time as the intersections they're talking in they say however the desire is to open the mopac main ones extending under slaughter lane and under lacrosse avenue before sh mortie five southwest is open to traffic so they have things backwards and there but they're rushing this because well i believe policy reasons but i understand your honour's can't get into there but the reason they're giving for rushing it is the reason we think there is harm that is they know or plain that they'd have to do it while the birds are gone because otherwise they will disturb the birds which are endangered but the problem with that is habitat is critical piece as bad vs sweet home hailed in the supreme court it is a take to destroy habitat where they u regulations it is the take to destroy habitat so what they're saying is let us destroy habitat which is endangered species act violation let us destroy habitat so we can hurry and get this done they aren't even proposing to build it us they're proposing intersection which i should go first doesn't even go under their status report last night this report would even start up until my first twenty seventy there is plenty of time for us that you do have a final preliminary injunction appeal could if i could give a slightly qualified answer yes but and the reason i cite the but part it is not and wise exercise of judicial economy it seems to me to to rush that through on the preliminary injunction because i believe what's likely to happen is we're at the tail end of trying to tie up what the administrative records are we have some loose ends we'll probably have to go back to the district court to tie those down but once we do that we have injunction appeal briefed and argued here expedited we also could finish the trial and you could have the full record the final decision from the district judge and make that decision and there is no harm to the agency in the meantime they speak they speak of the contract but if you read it carefully they don't even mention that they signed the contract as of october twenty sixth they say they haven't yet in their filing with this court so they don't even have a contract yet and they haven't even shown the public the contract nobody knows what it says on nobody knows whether they're right that there's going to be harm to the him if the contract is interfered with so i see no harm to them the only harm is  have to confront the full environmental consequences of what they're doing before they destroy that habitat that's the only consequence to them and isn't that countability statute that's all it is the only rights we have or procedural rights we have no substantive right it's only procedural in the courts it seems to me for this most important environmental statute should say you have to follow the procedure is supposed to take a hard look in advance we got a week in an office that's all we've got and we want to hard look and we can't even ask for anything more that's all we can ask for and that's what the statute requires i tha that we can have this important question of an injunction pending appeal resolved quickly timely in order to allow the long planned construction activities to commence on on november eighth as has been scheduled for four months and months and we urge the court to deny the preliminary injunction because judge it all got it exactly right he used exactly the right yardstick to analyze the plaintiff's segmentation claim and judge cost and you asked questions from earlier that that indicate you you see the distinction yes nepa is complicated and the interplay of the various concepts can be very complex and you correctly articulated that judge ecl addressed and addressed three issues first segmentation second cumulative impact and third is highway forty five a state project or a major federal action not subject to me but as a as a threshold matter but i think it's very important and you recognize that where the horse is buried in this  injunction pending appeal dispute is the segmentation analysis and did judge eckels use the correct yardstick but i think it's very important to take a step back a little bit and make sure that in analyzing the impact of the intersections project and that is an analysis within the intersections environmental analysis underneath and the statute see e q regs applied to that because there is no corollary for highway projects those cumulative impacts analysis apply to any sort of project and they don't the cumulative impact analysis within an environmental assessment is not a full stem to stern scope of the e p a it's rather focused on what may be the impacts of the o'reilly case is a good illustration in that case the court the cumulative impacts analysis and compass seventy two different projects past present future where as the segmentation analysis looked at three so forty five the wildflower center the oak hill parkway all kinds of things past present and future made properly be part of a team with of impact but that is nothing to do while i pretended i was oppressing in the motion here but but since you were here where in the technical memorandum or anywhere else where the cumulative impacts of all three of these projects address  was in our book those are analyze within the intersections environmental assessment and those are addressed in not in the briefing for this court but in the briefing in the in the district court  at the at the preliminary injunction stage actually the cumulative impacts the substantive scope of the cumulative impact portion of the intersections is not included in our briefing because that is not a challenge that the plaintiffs raised in their application form for a preliminary injunction or in their memorandum that is an issue that came up for the first time and there were ply briefs and it was extensively discussed that argument but we did not supply any briefing on that because it had not been raised and most important your honor here today it is not part of the injunction pending appeal only the segmentation analysis the question of did judge echo use the correct yardstick in analyzing whether the intersections and wasn't actually address your honor it's address it was not addressed in the briefing but is addressed in the intersections administrative record the administrative record includes a cumulative impact technical memorandum  that is attached and i apologize to the court that i do not have the the citation to that in the administrative record but that but a citation to it is included in our brief to the court  compassed past present future and there may be a whole bunch of different things that need to be included in but most important for this court purposes today a deficiency in the cumulative impacts analysis of the intersection cannot be a basis for enjoining forty five and here is why cumulative impact analysis only looks only and it analyzes other projects but only within the scope of is it can intersections go forward or not whether you improperly failed to analyze some past present or future project as at the component part within the intersection is not a basis to enjoying that other project and we know that for from the text of the regulation and from the case law can string in the text of the regulation of the cumulative impacts requirement refers to past present and future so things that you might be required to consider a past project it's error not to include it in there if it was going to be part of the of the of a cumulative impact but you can't enjoin it's not part of that link where is the memorandum within the intersections administrative record whether forty five is in there or not is not a basis potential bases to enjoin construction of twenty five going forward are let me ask let me ask you that punitive impact amount no it did have one but it doesn't have to and here's why you're wrong it is a state project state highway forty five is a wholly state project it's one hundred percent state funded it is not subject to the responsibility or control of any federal aid it is not subject to need period full stop the only way that neat but can be a political to forty five is through segmentation analysis the only way need but can reach out and grab it is if under a segmentation analysis a court determines that it was improperly lopped off so should the actions if there is a defect in the cumulative impact analysis in the intersections for in joining forty five and that's the only issue that presented to the court here on injunction because mr hicks said intersections isn't going to commence until may so the only issue right now is whether it is appropriate to enjoin construction of forty five and the cumulative impacts analysis in the intersections project cannot provide a basis for that and judge michael the fact that he analyzed the two separately handle on analyzed segmentation under the save barton creek four factor test that's derived from the highway specific governing regulations and analyzed separately humility of impacts shows that he didn't just reflectively sort of need jerk reject application of the c e q rex because i don't address human impacts so therefore we look to that and the riverkeeper case really very clearly expresses that the distinction that when making a segmentation analysis it's appropriate to look at the governing regulations is the phrase the court uses now the project at issue in the riverkeeper case was a pipeline not a highway and so the c e q regulations were the appropriate regulations so when analyzing the segmentation challenge to the pipeline project in the riverkeeper case the court appropriately looked at the c e q regs but in that discussion discussing the don't the sensible coalition dole case said that that's a highway case so they they were right to look at the f h w a regs and not the c q regs but we're going to look at the c e q regs because those are the governing regulations for our project and it's significant your honour's that sixty more than sixty different federal agencies have adopted regulations implementing the c e q regs for need for compliance under plaintiff's construct those are not the appropriate framework for any of those agencies to analyze their projects now these projects are so you have to do both and one about the regulation does the f h w a supplement to see you regulations as we together these regulations set forth all f h w a requirements under nepa so i wouldn't read in that regulation support their view that you do look at both sets of regulations well i think a couple of things are wrong or one is the regulations are not the federal courts including this court have been construing those regulations as they apply in need to cases for decades and the uniform mr hicks was unable to cite to this court a single case where the c e q regulations there was a violation found of the c e q regulations where there was not improper segmentation found of the f h w a he was not even able to to identify for the court a single highway case where the court analyzed the c e q regulations only and not the f h w a and not a single federal court has ever found compliance with the  regulations in the whole supplement the c e q regulations but where you have what the federal courts have done with this court didn't say barton creek and what many many other circuits have done is looked to  the dotted line from the sea e q regulation regarding segmentation to the f h w a one and said this is the implementation of that and in it did not trump the f h w a but it's a look at it did look at about one case there is one you are absolutely looking at but yes your honor that is one case absolutely looking at both this circuit has emphatically not any other state agency operating in the shoes of the f h w a pursuant to contract hey f to f h w a i know y'all have all been analyzing and doing lengthy and expensive environmental reviews of highway projects all around the country and analyzing the necessary scope of your environmental assessments pursuant to these factors in the  a regulations as implemented consistently by the court the federal courts for decades i know y'all have been doing that but too bad that's not good enough and we're going to up and that and that is inappropriate for court to change the yardstick that an agency has been operating under rightly so this court has never forbid in it but this court has consistently this court and every other court that that has addr which do you do has done like the delaware river keeper and said nope you look at the governing regulations every time someone has thought about it they say we take the dotted line and we do the governing regulations so from a policy standpoint this the there's a case cited in this a part increased case called mack versus skinner and it is a case out of the district of columbia district court was affirmed by the d c circuit and it's a highway case and  the court had this to say in the back vs skinner case that once a legal principle is established it is permit simple for an actor to plan in accordance with the rule and it is desirable for him to be able to rely on the rule in planning his conduct and that is what we have here the texas department of transportation had for the purposes of the intersections project stepped into the shoes of the f h w a and it analyzing the appropriate scope of the intersections environmental assessment for need for compliance it analyzed in terms of the f h w a regulations as articulated in the four factor test from say barton creek and it determined that under that four factor test having an environmental assessment of the intersections project alone is the appropriate is the appropriate course and nothing in the federal jurisprudence has ever told them that that is not appropriate this court would have to up and that administrative record regarding the golden sheep war work and whether they were there and when they were small jim was that they were not there if there's evidence that they're not in the driveway do you concede today that they're in the right away i do not concede that they are in the right of way your honor  the area in question is potential habitat and i just want to make a side note mr hicks argued that cutting down habitat isn't and is a violation of the endangered species act habitat is a ta there is no claim by anybody anywhere under the endangered species act if the issue in this litigation was that we were going to violate the endangered species act by taking a habitat than the appropriate there is bailable and appropriate federal mechanism that endangered species act and they have never made any claim under that and but from a you what you asked about the other points the other factors and we encourage the court to deny the preliminary injunction not only because judge ical got it exactly right in applying to say barton creek four factor test and the f h w a regs but the other factors do not weigh in favor of an injunction the administrative record state how we forty five is filled in starting at page thirty four of our response in the district court tab seven there's extensive discussion of the full studies environmental studies by reputable explains the timing considerations that if we don't start in november eighth there's a year delay with some cost to the agencies because the demobilizing but perhaps most important there is and i want to finish on this because i think that this is an issue that is  overlooked in the in the plaintiff's claims in attempts to delay this and that is the public interest in having this important infrastructure go forward there is there was substantial evidence in the record that  strong public support of the tremendous need for this project of strong safety issues there are lots and lots of collisions there substantia well delay the people in southern travis county and northern hayes county need this interest in going forward on infrastructure projects as against the need claims plaintiffs interest in additional meet the process is outweighed by the countervailing costs of delaying the project and prolonging the severe congestion at the interchange which poses a threat to public safety reduces the quality of life for the thousands of people who use the interchange every day and creates thousands of hours of traffic delays each month the same factors at this point i think the the that is moot to some extent because the court has come here today if this court denies the preliminary injunction pending appeal as part of this proceeding then our need for expediting in order to have the whole appeal resolved to let us go forward on tuesday is moot so if the court denies an injunction and lets us go forward on tuesday then expediting or not indulgence on the timing and respectfully pray that the court let us know yea or nay as soon as possible so that the administrative steps necessary to let the construction commence on tuesday can can proce there is no need exception or c e q exception regulation exception for highway projects to treat them differently than you treat other projects all federal agencies are bound by all of the  regulations in the case that i think best illustrates our point there is no case directly on point and i agree with judge cost and that the law of the analysis in the nepa cases historically is frankly a little mu analysis of all three pieces and so to keep going to saying they're the same thing is wrong say barton creek association did not cite fifteen zero eight point two five or fifteen zero two point four five four  sorry it inside it but if effectively said it's different because there was no reason for the core inside creek which it said segmentation analysis is ok independent utility is made here ok in those that situation back to in the some of the same area here but it's it would have no reason to say unlike here those other cases did not involve simultaneous or continuous construction well this one five i agree but that's it if you look it's the language about continuous construction is mere words exactly nearly exactly fifteen zero two point four a including statement about one  continuous course of action that's the reason they said it and this case is the one they were pointing to to make it different you were saying the c e q theirs and it applies to highways you know highway exceptions regulations but it's a pretty common principle that the specific governs over the general and i read some of these cases in particular that riverkeeper case as saying sure there's these general c e q regulations but then a lot of agencies have gone out there don't think anything in the c q rick says you let the specific govern the general in otherwise you face a situation like in the grand canyon trust case out of the d c circuit two thousand and two where they said we know no deference to agencies eleven one f and then it say it but even if the analysis were closely the point remains the agency's determination of the proper scope of its environmental review must train on the governing regulations which here means forty c have for section a statement of the common law if you want to call it that of segmentation analysis it's the same as it's it mirrors that exactly what's what's the statutory sick time i'm not sure where it came from you wrong it was a way first of all we have to recall the general rule s b a c s b c i says it's the general rule is you look at highway projects of a peet's you don't say that's what s p c i says people overlook them we folk talk so much about segmentation if they just develop i think it is you know we have to decide how to divide projects and how big the scope is of what we look at so we're going to begin to and analyze it and what they were trying to do was to situation has not been developed that's why i can't speak to litigating strategies for other people and so i don't they didn't reject this on and i don't understand because it's a plain argument that says these will supplement they d let me just briefly mention the arms argument in the harm if i understood right they're saying there are no warblers here in this area even endure during the time they would normally be in the us then they turn around and say could have to let us go forward because we have to do this while the birds are gone you can't put those two beats to gather and make them like since right you just can't do that the only reason they're asking this court that to allow them to hurry is because of their understanding that there are endangered species nesting in the trees that they're going to tear down in the fifty eight acre area that they're going to tear down if there are no birds there then there's no harm delay if i go back to the point there is no delay in this construction projects going forward in what we're asking for because they say in the ministry record hey we understand that intersections needs to be built first in if your hon traffic patterns here if you if you build and put in place it's eight forty five south west before you fix the intersections project you have the most horrendous traffic problem for three or four years that you can imagine because you're dumping them into a situation where there are traffic lights you're putting more and more tens of thousands more cars in an already overpacked highway so it makes no sense at all to do sh forty five south west first and they basically say straight record for the intersection project when they're answering the back the thing i quoted earlier from the administrative record on the power point i thought they were saying that they don't think there's herds in the trees are going to cut down but the construction might affect point two five eight two cannot be a bad thing and is not segmentation it is safe work great association sit one continue this is a continuous course of action for three projects that they need started at the same time and they want allow them to get out from under playing for requirements and the accountability the basic environmental accountability principle which is all we have we have nothing else in this case we can't stop them from building this ultimately they can say this is a terrible idea environmental effect do the study they can say it's a terrible idea they get to go ahead and he doesn't stop we're just saying make them look and make them stand up to the people  here or the environment consequence and we're going to do we plan to do this and at least they're accountable and that since nine hundred seventy has been the rule of the land in the leading environmental statute in this country and then we think it should be enforced here there is no harm no harm to the stuff from doing what we asked you to do and we can get a final case up here from the district where i believe fairly quickly with cooperation from the other side i know that the district judge is quite helpful in moving the case for so