the properly focused on locally preferred alternative and the no action alternatives and second whether f d a adequately analyze the purple watch potential growth and use at the outset however i think it's important to emphasize that this is a need for case and need to have one overarching central objective and that's to ensure that the agency considers the environmental consequences of its decision with the benefit of meaningful public p think about the district courts perspective on this case just assume for the moment the purple line is the stool and there are three legs to the stool and one of those is the connection with that tro and s questions have arisen about that leg in a very dramatic way in recent times what your response in that looking at it from that perspective as to why your view the district court abused its discretion we wrote i think the march decision from the supreme court makes clear that the standard for determining whether an s g i us is required is the same as the standard for determining whether but if under this concept that i suggested in my question the nature of some of the footprint remains the same but not necessarily the entire great d well the environmental footprint doesn't change at all and that's actually undisputed there's no contention on appeal or even in the district court that metro's troubles will change the purple minds environmental impact well if metro disappears statute but if there's no change in environmental impacts and there's no basis for ordering a new environmental impact state and the changes that have been identified is it the federal government's position then that those are just detailed analysis illustrated that with or without green track project would result in a net improvement in storm water treatment as are under your own regulations that issue has been thoroughly addressed already correct is that very few people are not going to travel east to west for whatever reason because of metro or whatever persist new evidence that very few people are going to travel east to west it is true as you say that all of the buil alternatives have the same footprint but the bus alternative doesn't have the same footprint one of the reasons for rejecting the bus alternative was roads are too congested cetera et cetera but if very few people are now going to travel east to west on the bus again please don't fight the oath of fight the hypothetical here in other words what i'm asking is it's possible that the number of travelers could change in the way that effect the environmental consequences of a choice between alternatives you agree with that i know you don't think that happened in this case but in some places in your brief you seem to be arguing that it's all about the environment and no changes in the numbers or economic consequences can ever be considered for purposes of deciding whether to have an c i s and i'm imagining a circumstance where the economic change demographic change whatever is such that it makes a difference between two different alternatives one of which has a lower environmental impact than another but your hypothetical doesn't change the environmental impacts it does between in the way i'm asking you doesn't it change it between two alternatives between any of the bill lives and the bus alter it changes the wisdom of the agencies to proceed with light rail well let me just as let me just perceive this because maybe i am understanding your legal point correctly in which case i think you have serious problems so maybe think about this very carefully ok so the build alternatives has environmental impacts for the trail there's just no doubt about that right the if there were all no other alternative which only required five more buses a day or something like that had no significant new environmental impact if you chose the build alternative you would have a big environmental impact if you chose the bus alternative you would have a small environmental impact is that not the kind of change in environmental impact that meep of requires you to add lives but not just which you prefer but you would need to examine whether was reasonable or not to pick the obviously lower environmental impact rather than the obviously higher environmental impact but suppose your honor that the environmental impacts of the bus service the bus that you described were thoroughly discussed in the u and they haven't changed at all no i understand that and in the end you choose which alternative you want but i'm asking about a change of information in your original information was that there wasn't going to be any difference you had enough east west traffic that a bus alternative was not possible because of the congestion etc now i'm offering you a kind of new information which makes that alternative possible again doesn't it have to be can be considered under those circumstances it sounds your honor to meet this new information bears on the wisdom of that choice and the appropriate remedy if there were one it would be to challenge the agency subset of decision on the grounds that the basis for the substantive choice of change but if there is since new book focuses on the argument of the new alternative i'm proposing would have an effect not which one you like better but on the environmental consequences of each well you're suggesting that there's been a change so fundamental that a brand new alternative that they haven't studied well now that you did study but you studied under an assumption of the number of riders that is no longer good the supreme court more to be sure that we're clear about this but i think i'm now clear on what your position s in other words if only three turns out that you would assume there are one hundred thousand riders and therefore your choice between the boss and i build was in favor of the bus because the bill build because the bus would also cause environmental problems and wouldn't work now turns out there's going to be true riders ok and you're going to you're now have a choice about building a  on the track in a way that hurts the environment or just putting five more riders on one bus you don't think you have to re evaluate whether you've made the right decision to not use the bus i think i taking i think it my position would be slightly more nuanced in the sense that if there is a change in circumstances that undercuts the fundamental purpose the need for a project i think that needs to be looked at but even underneath underneath  but my in my it practically speaking my guess is that if those that hypothetical wasn't was was real project sponsor would look at this and say what am i doing i'm not i'm not i'm not doing this project and and hold out well be careful here because i thought the whole premise of your position and federal government was essentially everything's been studied to death here  what is being brought to the district court's attention now is something that was known that was studied was evaluated and further maryland did this ridership scenario to respond to concerns about ridership and it took the position that the purple line is  begins and i thought the position that you were taking was we have studied everything there's nothing new here people continue to disagree about the wisdom of this project but in terms of the need issues it's stunning there may be other statutes that come into play at the next phase that would require some further study but not of the need and i'm just that was my three stool analysis you know one of the purposes falls out what happened no need or is that just a policy question well you're on your honor i think jumping out of the hypothetical that arise out of a decrease in ridership it looked at whether or not the purple line as proposed and as the the locally preferred alternative would meet continue to meet the purpose in  reevaluation document that's in the record that proposed five different scenarios of levels of ridership of metro from you know various levels of reduction all the way down to zero and  looking at the height of the extremely hypothetical and not reasonably forseeable zero scenario the the analysis concludes an m t a concurred that even if there are no passengers going back and forth from five to six hundred thousand people a day yes there are knowledge problems with metro but that's those are problems at three to three different jurisdictions are working together trying to work together to resolve the state has looked at the need for a east west corridor transit line in the that connects but that's between apparel ten and has decided that under given the conditions that are there it makes sense and is desirable to build a transit light rail transit line that connects those two to end points but also connects in between communities that are woefully under served by transit to allow those people to get to the  but doesn't require agencies to engage in endless speculation they require agencies to look at impacts that are reasonably forseeable and look at things you know the potential impacts potential  circumstances that are reasonably foreseeable and the notion that metro ceases to exist or the five hundred thousand people were currently or six hundred thousand people currently writing on metro every day are finding some other way to get to to and from their jobs or to new jobs is not reasonably forseeable there's no there's no rule of reason that can that allows you to reach that type of conclusion and to examine that type of endpoints connecting these various communities that much more valuable that is part of the analysis that was looked at and it was determined that even in an extreme scenario the purple line that connects these points on metro and these points on metro aren't just metro stops there mark commuter train stops their bus transit stops at their transit facilities or the focal point for bus routes so the project itself even under extreme reduction this court is the government's position which is pure in their own decision document that the only thing they looked at and will look at in a scenario like this is whether the environmental impacts of the particular option it's been selected have increased but they do not look at whether the justification for the project has been in any way lessen they do not look at whether other less environmentally destructive alternatives might come to the fore that have previously been rejected in light of new developments and i respectfully submit to the court that's all as far as you need to go to resolve this case because that position makes no sense at all and was very least it warrants to remain and for the agency to explain why that approach makes any sense either in the abstract or i could also run the court through why it makes a difference in this particular case in light of the specific information that has that in fact has been brought to bear in terms of the ridership have raised an argument that the actual finally gaius itself did not have an adequate comparison of alternatives in two basic ways one your honor it only compared the final yes only compared there maril preferred choice to taking no action whatsoever which we submitted say almost on sensible comparison from media standpoint day but i think to focus your argument really because i understand you can take the extreme positions but i think we're more in the center trying to understand what the district court was concerned about in terms of the arguments you presented and you heard me saying to counsel marilyn that i thought their position was we have studied everything essentially over these years and what's coming to us now basically he's asking us to reconsider some of the wisdom of what's happened not significant new matter that hasn't been examined before and i wonder if you could just focus on that aspect you sure are i will because i think that's a mischaracterization both of what their argument has been as well as what the  with the district court held is that from a need a standpoint when you have a new development that calls into question in a serious way at least one is your honour's own question positive and one of the three rationales for the project that is the  nineteen i which is maryland's choice of alternatives was heavily dependent upon not only several of the rationals have been positive here today but also upon the ability to meet ridership projections beyond twenty forty and was explicitly based upon the ability to meet a certain capacity now this gets to what are your other questions that we have brought up which has not been addressed at this point which i think is very important which is that we have experts submitted more than twenty five pages of detailed critiques new critiques are under it in light of the writer ship information in the metro rail problems explaining why alternatives previously rejected including on the basis that the twenty forty and beyond horizon was no longer order if you look at it joint appendix page twenty three zero six zero seven which is dr lycee explaining among other things that one of the critical assumptions that was made when an s u s was not being prepared was that twenty seven percent of the ridership would be drawn from his so that's not a that's not new information that's his claim about what was already in it where's his statistical got that part but but we're talking about new information about ridership where's his number as to what the new ridership is likely to be and where is it supported when he doesn't himself come up with a his own analysis but i would what i would also refer to what is a beginning the death sentence in his i'm why i'm having trouble finding here what the new evidence is yes everybody knows that metrorail is gone down the question is what will it be like the you know five years from now ten years from now i don't see any analysis in his affidavit of work what it will be your honor these declarations were  can't or maybe you think it is on now at i'll ask you the hypothetical in your view if someone who is an expert amounts that is your numbers are wrong and other numbers exist but i'm not going to tell you what they are i'm not going to my do any kind of  sadistical analysis i'm not going to do any kind of protection that can be evaluated on telling us i'm an expert and i think your numbers are wrong is that enough to require in a c i s i think it's enough to require the agency to respond to the critique ok likely numbers are going to be i think it's enough to establish if the critique are sufficiently strong that there is in the language of the c q regulation significant new information it bears upon whether the project should go forward in that explain why the forty three percent figure is very important because it was not relied upon in the agency's own decision document even and they never explained why the forty three percent metro rail related ridership was not the correct figure so it's  the agency's obligation to explain its decision but what they've said i mean i do want to see that see that projection but what their explanation is is even if it were in that number it wouldn't make a difference to us and they elaine why now i  agree with their explanation but they do say that any of a number of productions from their original figure not enough to make a difference in the environmental consequences but it is if you have another place where there's an actual w there's another place where f d a itself used a different figure your honor and that is referred to in the declaration from mr allen who has been doing transportation modeling and this is a page twenty three twenty of the joint appendix where he sigur and they in fact use a number which is substantially higher than that in their analysis which is almost seventy thousand daily ridership and mr allen said if you use the stas own two thousand and fifteen figure which post dates the i r s then even as a baseline matter in terms of looking at metro rail decline you would have a much different number potentially now that again is a additional raised by an expert with undisputed expertise never addressed in the f t a's decision document actually i mean you keep saying these things and i just have to say that's not the way the document reads and you know all fairness they did address decline in ridership and you know specifically incorporated by reference to these types of analyses and that's why i thought the chief judge was focusing you on same declarations and then some new declarations so they've been before maryland and the t s a what's new well then the declaration was emitted but they didn't say paper saying here is our ultimate decision but if you look at for example page day twenty four twenty two i think this answers your question specifically i hope answers judge chief of girls question where they were fir to the baseline that they're using for the scenarios of sixty nine thousand and mr allen said your own more recent documentation shows that you should be using a much lower baseline figure that was never responded to and in fact the government in its  well if you look at the declaration that we said we submitted before the decision was made by an f d a official she purports to explain that discrepancy on the grounds that the night included special trips university of maryland trips and appendix page twelve seventy one through seventy two in fact that number did include special trips if you look at maryland's own analysis which is drawing appendix twenty three fifty three they had knowledge the sixty nine thousand included special trips so you have a flagrant inconsistency between the post hoc declaration that there were lying upon and the documents themselves including maryland's own analysis and i say this not to convince the court that there's no possible answer to these points i say it to convince the court to go to this court's most basic standards of administrative review not to not answering any of these concerns or answering any of these objections we believe is an a  were especially submitted on to the public employees really from this court there has to be song i have knowledge of it of these experts views and some response on some of these discrepancies they came up with why hasn't it seems to the nature of their response is a series of scenarios in which there are a number of east west strips that come off from metro of reducing africa even even down to almost zero and their position is we're building this for three different reasons back to judge rogers reed legged stool and that even if the number is reduced and no one seriously including your experts say it's going to go to zero even if it's produce there's still the state still has an interest in helping people gap from places where they live to places where they are where there are jobs from east to west and helping people between those two locations to get into either of the of the other two locations for those purposes don't change the other purposes maybe slightly less valuable but it's still there and under those circumstances there is no environmental difference why his and that a good enough for sponsors rather than having to engage directly with the numbers question as long as their position is  barrels position to the question is for the federal agency which is being asked to give have nearly a billion dollars in money the question of whether less environmentally destruction alternatives and just to be clear about this because i haven't had a chance to sort of emphasize this this is environmentally destructive project it's going on right now the trees in fars are being destroyed in places of great importance to members of the local communities that will destroy more than five thousand acres of streams and other wetlands will impair his issue that i think is adequately addressed in the briefs and happy to discuss further that their analysis of indirect effects was completely lacking in our view especially under the court's recent sierra club ruling which says you actually have to engage in a serious analysis of indirect a significant way without incurring as many perhaps most of these impacts that's precisely what the point of need when alice this is all about the point of need is to inform agency decision they are right but in the final environmental statement the federal government incorporated by reference the analysis of the several alternatives beyond the no buil have to do a nother environmental analysis because as i understand it in your view they didn't adequately consider the alternatives but had new developments which bear upon an aspect of the proper purpose of the project which calls into question exactly as we've been discussing whether less environmentally destructive and in his view of also importance less financially impactful alternatives should be considered and let me also answer your honor this way because i do i want to make sure i get this out before i sit down there was an additional impact that has been raised by dr alyse which i did not refer to before and that is the potential impact on what he refers to as the of the ridership from the existing transportation systems and so even i think we are on sound ground in saying but if he doesn't buy that what isn't it what does that mean yeah well that means that if you look at their own rationale for the project it will take ridership away from the existing resource impoverish the released resource strapped system because one of the extensible rationale for the project is that people who travel between metro rail if you for example consider bethesda and so over spring will now take the purple line instead of travelling and then the my personal impact of that wall it to the extent that looking at the entire community in terms of how it's using the transportation system nobody has disagreed that that is a part of an environmental analysis because ridership has an impact on other aspects including development etc but even the i don't see that you think people should be made to go all the way through the entire loop while some of that environmental repercussions of having people take a direct route across the you rather than taking an indirect route all the way through the it has to be an environmental impact but some kind  celebrates the demise of the metro rail system that has an enormous impact on the entire community including socio economic impacts which are the seat he regulations do have to be addressed in fact what they did evaluate i mean i thought maybe the strongest argument think they meant about the environmental justice question is that on allows people from the east to work in the west otherwise their ability to work is very difficult and they locate the environmental justice communities as being in prince george's county and one of the purposes as i understand and reading media as is to enable people to actually get to work without taking you know an hour or more to get to work well and i don't know how  balance these off well i don't think it's this is sara lee i doubt that is ultimately the agency's decision to balance or arguing again is a narrow debo point in that they have to at least adequately look at both the good and the bad and that is what  not look at potentially adverse effects and it was fun to see runners question more pointedly there are two elements to that one is if it actually accelerates the decline of the metro rail system that will have enormously negative impacts especially when nobody knows where where the money to operate metro is going to come from and the second point in terms of those environmental justice effects when appreciate right of bringing that up one of the indirect effects issues it was not addressed is what's going to happen to environmental justice communities that of that impact so i don't disagree with your honor that there may be benefits nobody's ever disagreed that there may be some benefits but the need the question is have all the benefits and the costs been adequately considered both underlie the analysis and as a supplement to matter we were specialist smith you're on since you came up with mr griffin seems presentation i'd like to just revisit your hypothetical to make sure there's no disconnect you know one of the key objectives of this project is to facilitate east west transit in the corridor and if that objective goes away then and the objectives of the project change then we agreed that a new b o s could be required because the objectives of the project dictate the range a reasonable range of alternatives so if you change your objectives then at least in some instances you say you have to analyze a new range of alternatives that might achieve those jack so that is but in that situation we be talking about starting over honestly i think we're on the same page trying to stamp out let me just ask you in response to a question i asked of your opponent which was what part of the affidavit was most significant and he pointed out that the expert says that your side's analysis on the baseline is incorrect and not only incorrect but inconsistent with subsequent data from metrorail and that that although you positive scenarios that go down from a baseline you haven't positive ones that go down from the accurate baseline and least as stated by the and in response to that very affidavit we submitted a rebuttal affidavit explaining that the plaintiff's declare was totally wrong because the two figures he was referring to were based on different metrics so that was a litigation issue raises a litigation issue that we  and also much of the affidavits go to this issue of whether the initial ridership estimates were valid and that was an issue a summary judgment that the court specifically reserved ruling on what he wanted us to address whether a part so that was not something we had to look at during every man that was a separate issue on which you reserve judgment and ultimately who gets the plainest that plane is elected not to appeal what do you think you were directed to look in on me about to see how a change in metro ridership would affect our projections which is exactly what we did but not of not the specific change that their experts were talking about not the reduction in the base well that it was that that we dress that in the litigation when the affidavit was first and also i'd like to address a comment that was made that well all we looked at was whether and se whether there'd be new environmental impacts and that's totally incorrect we also addressed whether the whether the product would still meet the purpose  in the event of a significant decline in metro and we demonstrated that it would the need for reliable east west transit in the corridor hasn't changed purple i will continue to drive to address it and the purple i will continue to facilitate connection connections to metro under any scenario in which the system exists and we also critically maryland and if ca maryland in particular explained why a decline in metro rail ridership doesn't change the comparative value of alternatives at all and it doesn't enhance that marilyn selected the light rail in order to accommodate increased ridership levels well that's true it's absolutely true but it wasn't increased ridership levels that were going to be on metro it's increased ridership levels that are based upon the fact that population numbers are expected to rise over the course of the thirty forty fifty sixty years that this project will remain in place that some of that some of that direct transfers between bethesda and new carrollton must be as a consequence of more riders on metro absolutely they are more riders on metro he has a point where he has a point only but to an extent your honor because it's that just discounts the fact that ridership is come there are twenty one stations on this line and ridership is coming from all twenty one stations and as the population level increases the need for this