all united states court of appeals for the st circuit is now in session all persons having any business before this honorable court may give their attendance and they shall be heard god save the united states of america and this honorable court court is in session today's case will be called as previously announced and the times will be as a lot of the council the case today is sierra club at all versus us department of the army corps of engineers at all appeal number twenty dash two thousand one hundred and ninety five attorney cassi please introduce yourself to the record and proceed with your argument good morning your honour's kevin cassidy on behalf of appellant sierra club national research council of native and appalachian mountain club in with the court's permission i would like to reserve two minutes of my time for a bottle yes sir and i thank you your honor may please the court this court should reverse the district court's denial of the clean air injunction because syria club has shown a likelihood of success on the merits  for several of its claims but even if we have it at a minimum we have shown serious questions going to the merits that worn an injunction when balanced on a sliding scale most notably the army corps this decision to limit the scope of its  arbitrary capricious directly contrary to its only be regulations and to the clean water act permitted ultimately issued to central maine power grid balancing did not take place because the district court erred in not analyzing sciri club certain on the ground  rable harm as our witness testified the new fifty three mile transmission corridor will be a scar on the landscape but globally significant and ecological ecologically significant region that will cause e p a s words substantial aquatic impacts and fragmentation of forest d resources that harm will be permanent in segment one the project will early destroy the status quo and we know it was certain to occur because the construction activities had in fact begun hours prior to this court's injunction surety to the merits your honour's this court held in the united states versus coalition for buzzards bay where it rejected a an agency's interpretation of its own regulations and our difference cannot be wielded to read a provision in a way that utterly destroys the plain language that is exactly what the army corps did here in limiting the scope of its need analysis and so i want to start with the plain language of the regulation that the army cor impacts for the entire project the st factor i'll call the merely a week factor and that's that's the only factor that specifically calls out quarter type projects like we have here now nearly a week can be plainly understood and the army corps it provides an example for us in this regulations as to what it thinks it needs and that example is of a fifty mile transmission cord or that crosses one river by a single jurisdictional water that's obviously not the facts of our case we have the army corps reading of its regulation we term nearly a week into merely hundreds of weeks or that actually if we set aside those water bodies that the transmission line crosses that don't cause and the disturbance with the water that would trigger a need for a c w a permit how many waters are crossed or affected that are actually trigger some action from the core is you understand what i'm asking i think so your honor and st of all i would point out that that crop crossing is not a word that we it's a word in the regulations so the corps in its own regulation either simply just mistrust my question  actually your honor i don't think the corps ever made that determination because it was looking at all the crossings so they have to put it is did you put a thing in the record that would give me a sense of how many actual way if if the only thing that happened was that the transmission line crossed the waters in the sense that it went over them you would not need a permit of the c w a correct it yes your honor you  even if we exclude all waters that are like that how many waters are left in which there is dredging filling or something like that that triggers the need for c w a permit well there you may be talking about impacts your honor and merely aleck you're saying it's more than one i assume you think it's more than two i know it's less them all wetlands under which under the transmission lines so it's more than one a percentage council yes the corps argues that approximately one point nine percent of the total project co or has to do with water effect such that it needs a permit they then go on to specify that there are with the end segment on separate out the power poles and say there are ninety three dollars of them out of one thousand four hundred and thirty dollars and they use that to support the one nine percent the district court found that the one nine percent figure was not at all arbitrary the extent to which the entire project will be within the i'm sorry but i'm looking at the army's appendix b analysis under its own rules under the st merrily lank and that is where they are making these points your honor and i think that's the wrong factor to look trying to figure out how much is impacted because if we if we start from the premise that judge baron keeps pressing that merely aerial crossing isn't impactful we're trying to figure out your honor they open up the rivers to they take the tree canopy out the open up these are small water vyvian so this lets you know but there is no federal action unless the whole transmission line is federal just by the cross in the federal action is the permit thing by the corps pursuant to the c w a and there's no permit thing with respect to just the fact that it crosses over them so the question that we keep asking with respect to merely a link is if it's one crossing the appendix b is clear that does not suffice as a factor that supports concluding that the whole project is a federal action and that would mean that those over land crossings would not be themselves federal actions correct your honor i guess i would go back i want to answer your question directly but i would go back to the regulation because the regulation says cross it doesn't say that it's in here  direct your honor and he and that regulated activity is what triggers its jurisdiction over the clean water act but its obligations or leave are to look at the impacts related to that if  that the limitation in scope was arbitrary and precious under the a p a you said it violated their own regs to and and that's what we have been discussing which is the linkage st test under their regs or chord or projects you then listed separately the cli in water  at my hearing you now say that this argument you're making is not under appendix b but is under the clear clean water wrapped no your honor the clean water has conditions in its permit that aren't forcible by the army corps d through its clean water act permit it goes beyond just aquatic in tax ok so this your represents to the clean water act is  hands of your argument under appendix b that if you put it all together at this constitutes sufficient federal control over the project to have t only the impacts that you're referring to the one point nine percent however when it is you did permit and there was other federal agencies involved in the process of it's the cumulative federal involvement of the corps and other  federal agencies but how for instance is the the presidential order which is simply dealing with crossing the border may have had a set connect to the environmental impact are there are the firk regulations which go to rate it seems like very very distinct federal interest from each of these agencies well i'll just say your honor for the department of energy the last three border  upon the outcome they had that they really weren't needed and to be more circumspect in and on this project well it is your question your honor we know that the department of energy has done an environmental analysis for the entire for the entire project here that was through the motion for reconsideration that syrian people on the injunction this court issued they brought that up and we now have it because because the army of energy issue dad on descent on january th the day before this court's injunction so they have done it environmental analysis of the whole of the whole project it's there's no rational reason why two different agencies have done two separate environmental analyses of regulation that says agencies can't you're not supposed to have this disconnected actions in other words they if it agencies are going to look at one project they're supposed to do it together and that's our connected actions cla is connected action claim between the that you just referenced which is not what i thought you were arguing to us which is the claim that there's a connection between the permit and the deal in the court action in permit in the various activities with respect to the wetlands that's not a claim necessarily parole project review i thought you were making an appendix b argument for a whole project review which is under the factors of appendix b that's not the connected action the regulation of c e q so with respect to appendix b so it's thompson's question which i also have is how does the existence of the d o e permit which relates to the crossing of the border provide a basis for saying that there is sufficient parental involvement control over the entire private transmission line such that we treat that whole line as a federal action your honor  description of the deal we only relating to the border crossing it's be allowed by their their own review their own interpretation of what they need to look at is from the border crossing to the st point of interconnection that's in lewist with the grid so that's why they looked at the entire line and did environmental analysis on the entire line so that that's how those two things will is your argument that the deal we permit itself then makes the whole thing a federal project you had made that argument to us we have in your honor because the deal we permit had issued no are you making that now i'm not making that argument now your honor get well then if you're thinking that doesn't if the deal we permit does not itself make it all a federal action thompson's question is what is the connection or reason to think that the existence of the deal you permit transforms the permeating activity by the core of the seat of usa from just individual regulated activities by the core into the whole private line being itself a federal action your honor it is if you go to the cumulative federal control over the project it's one piece of it i'm not stressing that here today the more important piece is the endangered species act consultation with the fish and wildlife service that resulted in the conditions that are in the army corps permit that the army corps put in force that go beyond just their jurisdictional waters ok well if here you lot are a bottle of thank your honor attorney cassie if you could please mute your device and at this time if attorney hall would please introduce yourself on the record please the court and jeffery hall on behalf of federal defendants this appeal concerns whether the construction of a power transmission line through new england bringing renewable energy to new england should be enjoin believe me we know what the cases about so i have a question for you we apparently would be the st court to be reviewing a  it's designed to make sure that just because a project passes through a federally regulated territory or a way under a new department something like a discharge from here that doesn't convert the entire project into a federal project  that that's certainly a frequent case that any large scale transmission reporter type project any pipeline is going to need probably crossed some type of wetland or water of the united states or other jurisdiction merely a link because the the very limited area is what's most important about that so it functionally the discharge here is very very small portion of the quarter type projects and in general river and so just because you have sort of that split into smaller segments and more jurisdictional crossings that are smaller and result in the same area doesn't mean a different result why would that necessarily be the case because the concern is if you had let's say every mile a th of the mile had some water affected through the whole thing you can start to see that it seems a little odd to call that the big great activity merely a link each time even if you had four hundred dollars of the five hundred dollars of them whereas it's different if you have one river you know it's a relatively large river that's the only activity so you know why would you look at the whole project you would look at just that area when it each area all the way through you would start to think that well maybe we should be looking at the effect of all this permitting on the entire project given how it's pervasive through the whole area and as i read the reg it just doesn't address that issue one way or the other it's just not what they were thinking about in fact as you one of which is all that substantial and the sum total of which itself is no more than one point one percent that seems to me to fit perfectly into the rd factor but as i understand the e a a it also relied on the st factor and i just did was it went through each factor and asked the question that the regs require you ask does this convert it into federal action and so under the st part whether it's merely a link yes they thought it was you know it sort of fit within the notion of a merely link because of the small area even if you disagree with that as you said that the rd factor that's where it falls in but certainly the st factor doesn't require that and that this be a federal action and later on not only are there examples but there's also the description of the fact that what it's really getting to here is does the perm on the origin and the destination and the entire length of the project where it's being cited and that's just not the case here and it's not the case in terms of what was implemented but it's also certainly number for the ones that are temporarily impacted or protect conversion i think equal or went primarily with acreage there because that was an easier way to representative is it fair to say that those eighty two dollars plus four are distributed throughout the length single permit issued by the court with respect to all of the wetlands is that right yes your honor that's correct so why is that how it normally would work in other words if you have permit that's all it is i just don't understand how how that decision gets made iran i i can't necessarily speak to how that's made never case but here i think because they are small there are a within one project easy yet in this case makes that clear as a matter of sort of discretion it has in the past and i i don't know if i have a clear answer for exactly why although i think it just depends upon administration anything to in the course analysis on whether that requires the corps than to take a look at the entire line under its own regulations and under public citizen the notion of what's recently because there's a projects roads your honor would be another example i believe of a court order type project so there are a number of examples of court cases involving causeways or or other things and in fact in the examples it provides in the core regulations it us is of the project how how is it supposed to work when there's multiple agencies as the core regulation contemplates that there could be multiple agencies involved all themselves taking some federal action on their own and the court regulation contemplates that the sum total of those discrete federal actions in certain instances can transform the whole project into a federal action would that mean that each federal agency that did a federal action on its own in a situation in which the cumulative effect of all those actions was to make the whole project a federal action that each one of those agencies would have to perform its own whole project yes that's that's not my understanding of the regulations your honor and forgive me if it because it wasn't briefed or discussed extensively here but my understanding is that  indorsing that has dio we walked away from that yes in other words i just don't fully understand what this disputes about given that there is a whole project yes is the idea that the corps has to perform a separate one if you're telling me under the regs there's no obligation for the court provide a separate one anyway then is the idea here that you're disavowing that yes that is out there or is there some reason the core is not simply saying there isn't any i guess so what what needs asking for they haven't made any argument us that the corps has to provide now a separate independent parallel yes because that would seem odd if two agencies have to have their own independent yes for the same i don't is the plaintiffs arguing that in the in the presence of a couple of currently full court is is the lead agency why would you take a look at it are you still the lead agency you're going to have to go back and look at the end to see i don't know if the jurisdiction where there isn't where it doesn't sort of overlap with these other agencies and what they're looking at it doesn't need to incorporate that into its analysis so i do think this determined by  is there any reason to think because this is just one possibility is maybe everyone could agree on this question then this case goes away is there any court just taking the position that it can do nor d o easy yes in going forward with the project were is the course saying we've looked at the e i a s and everything we're doing is in a court with that or what it is don't really understand we've got one arm of the government within the us and another arm of the government without one and that one seems to be doing it's permanent without looking at the other and you've got somebody court saying there needs to be in the us it's a little confusing you know the  the department of energy's analysis came to the same conclusion so i don't think there's any contradiction would we in the two that there's not a significant impact  within the meaning of nita so i just think is the court done any analysis of the test where you just look at the deal we represent to the court that it concludes that that's consistent with that's fine city and therefore it's made that the when i looked at you now says it performed what it appeared is that it did it their own analysis including things that you know involving water if i recall correctly but it  be deciding whether something is a the whether the whole project even though it's privately built and even the chunks of it are not subject to any regulated activity by any federal actor nonetheless the whole project can be deemed a federal action correct yes run of it and and then what's mostly supposed to happen i guess is the corps is then responsible for doing a scope analysis of all the different possible environmental impacts of the whole project apart from what the corps is responsible for not just water but any possible environmental impact and that's the way the appendix b works so well i think it interacts with the yes regulations generally and for the poor and so my understanding of it would be that it would depend the court were the primary agency it would be charged with looking at the environmental impacts of those aspects of the project that don't affect what limbs even if those impacts have nothing to do with anything within the corps jurisdiction that reason went out of the whole project there's no reason to think it would do any different analysis then the court some would do of the whole project because each of them is way outside their expertise in looking at all the impacts of the whole project conclusion at that point the core analysis was already out there crack and is there any reason to think that the department of energy did way in which the government can just say well actually this is just you know our view the government of united states has done and yes for the whole project factoring in the relevant things it's there and therefore if the objection is there is no  saying the court doesn't have to even though there is a full e i a s i just don't understand what the point of this is yes so i think on the yes point you're right that a unions motion to reconsider the even point of sort of agreed that if the g o p analysis came along and was sufficient then perhaps the core didn't need to do when and i think that's right especially if there isn't a corporation by the poor might the issue is just i do not represent the department of energy in this case and we have not you know done a full analysis of that and so i'm not prepared to that i can make that representation today i don't know how is it possible that there's not agency communication this sounds crazy this is not agency communication over us something that we're talking about an entire that there there's any fault there in terms of what the what it says in terms of looking at and incorporating the corps analysis and it's the best evidence of what kind of consultation occurred between the corps and the department of energy when the corps was creating its analysis it notes that it talked with the department of energy in terms of status but it can because those that there are specific focuses are different it doesn't need to incorporate the department energy's analysis on the border crossing into its analysis of the effects of the discharge into weapons and that's it performed in a assuming that the scope of it is correct then that was sufficient on the course we have and if there's some problem with what the department of energy did again that's it's not well presented so far we're going to hear next from counsel from c m t who can seriously advise us on the status of that do challenge which has been reported in the press  are there further questions now thank you mr hall if we have heard their questions later we'll let you out thank you thank you mr analysis but there did the deal we in doing sprouter scope for its proceed on the understanding that the whole project was a federal action potential impact to the area but if you seriously there's i guess there's as i understand there's two different possible if you can correct me one possibility is you look if there's a particular regulated activity and there's a particular action by the government with respect to that activity that's a federal action and then there's a question of what is the scope of the impact of that particular federal action brecht it's possible that the scope of the impact india easy view of its particular federal action was brought in included the whole project but all of that was with respect to the impact of its particular action the border permit that would be different than perhaps the core looking at its actions with respect to regulate activity and making an assessment about what the draft of the impact of those would be and each of those could be different than what i b to be getting at which is that regardless of the nature of the particular actions by any given agency the whole project becomes a federal action that seems to be what appendix b is getting at and when that happens somebody then has to do a scope analysis of all of it is if the whole thing was basically being done by the federal and that might be they're also relying on the cumulative impact of the other federal agencies as well well they're they're they're asking whether or not it is been federalized by not only their own but also whether or not there is such involvement by the  correct you said that they've been narrow the scope of their release so all that that focus segment was yes so presumably what they would then be now objecting to is that somehow with respect to segment one impact with innit beyond those that who are looked at were not considered that they are the segment one yes ok so from your perspective what are we to do with the fact that we have a lawsuit against a federal agency seeking an e a that would be broader in scope with respect to conducted by another agency especially when you overlay that with the fact that this bag while it defines the scope of it analysis to be the court's jurisdiction well it will be all of them discussed further  what i understand is that the injunction is to stop the action and kill the court has given some consideration to that property not just produce that never look at it so it is out th of half heartedly insert here and then you go on the basis of the connected actions regulation that only applies to yes it is not and moreover they are trying to use that in order to sweep in private  should factor in significantly to this analysis other than to say that the plaintiffs came in at the outset thinking of their injunction because no federal entity had considered all the potential  isn't going back to just parents question it's an existence now how is how can we make a harmless error if we don't have a representation but you've got to look at it my my final step at this i understand that both you and the corps and maybe dio we all know maybe of the view that there was no obligation to do an e t a as broad as  not understand the reason to preserve that point there's a separate question though whether the corps has any problem with the substance of the e a did if it did not and it represented to us that it did not because it's after all the same government then the particular dispute that we have in this action would seem to me potentially to be mo it wouldn't obviate the question about whether dio he was still had a defense that if they didn't like the e a a it wasn't obligated to do any at that scope anyway all of that would still remain but the particular claim we've got here is that the court never did the proper scope e s a and it's just odd that we've got that dispute running at a time when the different agency has an e t a of that scope and the core is of the same government as the agency to produce that so if it has no problem with it i don't really see why this particular tissue is live and yet we could be sought by the deal we simply course simply telling us we have no problem with  it's fine it may be no obligation to have done it but there's nothing in it that's wrong a certain sense for the koran that your honor i would suggest because they both came to because the injunction is outstanding and some action needs to be taken on that and you suggest that instead of making the core goes through the process of reviewing a sister agency determination that was not complete until long after the court determination after the choir has said that it consulted with d l eek that there can be no disagreement and indeed there is no point and the asking one branch of the federal government to express a disagreement with another branch of the federal government that is up to the plaintiffs to do if they wish to do don't suppose we disagreed with you on your reading of appendix b and so we were going to continue the injunction because we thought the court had the issue in each of the scope request a fonzie is any more appropriate or who are properly scoped and corsi in fonzie and that's why you know we're challenging that what's wrong with the scope of the dio we they didn't they did not take a hard look at a lot of the impacts as well they they looked at the you know the project but they didn't say that d n a is deficient and not on the ground is it deficient on the ground that you're you're objecting to the scope in a particular way in this particular lawsuit and you have limited it to section one we live it is a section one for this for the purposes of the injunction not for the purpose of the entire case and that's all obligations underneath so there will be a situation where you have a clean water permit that triggers need and you have to look beyond just the clean water act or stiction all peace it's the other impacts and i want to mention the from the department of energy affectively given you the relief you are seeking in this lawsuit against the army corps are you answered no but i would like a further explanation about why you answered no yes your honor because we think that this project should have had an environmental  that this questions earlier were i think it really has done an environmental impact statement why do we need to do this we know i understand i understand that question whether an e s a is sufficient there is a threshold question before appendix b just in tells you to a product scope analysis and as i understand your briefing to us the only the main thing you are focused on is an appendix b error and that your e i a s argument piggybacked on that appendix b error so with respect to the appendix b issue as to scope setting aside intensity questions but just as a scope is there any respect court does and fact look at forest fragmentation and it looks at the possible effects of restrictions imposed by the state  environmental agency as to overhanging branches and debris from cutting trees getting and to the waterways isn't that correct you may think that confusing me the reason we started asking about why the dio we didn't move the issue is because you told us i thought one of the reasons why it was problematic the corps didn't do a broader scope is that dio we had done it but now you're telling us dio he didn't do it no your i never said to you we did a broader scope i said they did an analysis and the then the i miss of this procedure is typically how this works and how this works in the private prior transmission line cases is there's a lead agency and that mean agency has cooperating agencies here the lead agency was the corps deal we what the operating agency the court took the lead they issued their you fine city without putting it out for public comment and then d o we all the meanwhile was saying we're going to put our v a out for public comment they made back in it and then it decided it wasn't going to do that  it issued a separate a entirely separate v a entirely separate analysis of the same project that is not the way it works and that's what sets up this procedural you know back and forth where one agency can point to the other agencies e a a and say that you know look at their impacts and the other agency can point to the you know the fact that the one it just came and so there's no coordination there's no rational reason why two federal agencies like this would do to separate public participation argument and your briefs do you have anything alice to say as a rebuttal argument thank you that concludes arguments for today the session of the honorable united states court of appeals is now recess until the next session of the court god save the united states of america and this honorable court counsel you may disconnect from the hearing