good morning may please the court brendan cummings on behalf of plaintiffs appellant center for biological diversity at all in this appeal the court must decide whether a u s federal agencies decision to fund to commit nearly five billion dollars to two massive fossil fuel projects in the great barrier reef world heritage area without complying with political u s environmental law is ultimately reviewable by the courts is important to note that the two statutes at issue listed species in the world heritage area and for purposes of standing harm to plaintiffs and their members is uncontested so the three prongs of standing injury causation redress ability the first is not disputed it is also undisputed that this case involved procedural injuries and the ninth circuit has repeatedly affirmed that procedural injuries are different for example in two thousand and fifteen in the case wildlife service the court stated quote a showing a procedural injury lessens a plaintiff's burden on the last two prongs of article three standing inquiry causation and redress ability thus because asserting a procedural injury it must show only that it has a procedural right that if exercised could protect its concrete interests the court goes on to say plaintiffs alleging procedural injury can often establish redress ability with little difficulty because they needed to show only that the release requested that the agency follow the correct procedures may influence the agency's ultimate decision it seems here we have a unique situation for us in the ninth circuit  in that we have procedural violations that are been alleged here but we have third parties yes and so help us understand what's your best argument on how to proceed when you have procedural violations and this relaxed standard but third parties where the supreme court and lou has given us some guidance that first off c b the fish and wildlife service itself was a third party case in that case the action consulted over a challenge it was a memorandum of understanding with nonfederal actors over water pumping that would harm an endangered court found that those injuries any threat quote any threat to the fish's survival is caused exclusively kwai those third parties yet still found standing though more agency control in that case over not in that case particularly because the agents it was an issue of water pumping by senior water rights holders who were non federal and the federal agency which yes it seems though the contractor there i mean this is really interesting to me because they were entering into contracts right and you have a contract here i guess are a long time but you know a loan is a contract ok and i think it was highlighted there renegotiation could be a benefit of that loan and i think you kind of sort of put forward that argument here but scene just that that's all we have here in this case is that enough to put that on par with that situation in the water case  s and before going direct to that i want to highlight the third party issue from couple other sources because the ninth circuit has teased this out pretty explicitly in the public citizens case where there it involved a third party the president who was not before the court who had to act before there was harm and the court went through all the language and luan in other cases about third parties not before the court and it acknowledged that the government's position had a certain appeal but ultimately it found standing and i quote from this case nevertheless we find dispositive the lower threshold for causation in procedural injury cases which often involve third parties whose independent actions are necessary for constitutional injury to occur so the standard in this circuit doesn't directly third party factor is essentially irrelevant pool if i could just interject how could we say the ninth circuit precedent makes the third party factor irrelevant when the supreme court its decision luan itself if you look at footnote seven which carves out the procedural standring inquiry there's one sentence of it that's quoted in all the cases about a person living close to where a federally licensed project occurred need not show all the standard imminence of harm because they had no indication that it would actually occur that's the basis that the standing but the court then says in the very next sentence in apparent pedicle that is why we do not rely in the present case upon the government's argument that even if other agencies were to consult with the secretary when one might not have followed his advice loop on itself well it sets up the whole standard of standing the courts have built upon in the some many ways the most important case because that arose out of an appeal of d c circuit stand decision relying on d c circuit standing law which is more constrained in the ninth circuit and the court reversed and found standing using this some possibilities to test which is very similar to the ninth circuit could have an impact test and what chesapeake i mean chesapeake the d c circuit in that case basically when there's a third party at least my understanding it heightened the when when there's a third party it raised it back to likely instead of could in terms of what the standard should be when evaluating the the injury yet chesapeake is that just a court opinion out of the d c circuit that i believe would not apply in the ninth circuit circuit we are bound to follow the law of the ninth circuit that's what's binding here and i understand that i'm saying we have a unique situation here from i mean what's your what you say is our best ninth circuit authority and we don't have a case quite like this we not specifically unfunded but what we do have in the definition of action under the endangered species act in the definition of undertaking under the n h p a funding in whole  it a federal action or undertaking subject to the processes that we're challenging and so that that very act makes it a federal actions process to which we have a right and it's sports council judge will i agree with that theoretical point so as a practical matter please give me your view to explain why if the funding here im bank was going to be about ten percent of the total funding why we should expect that these developers will you know with all the other  percent we believe it's thirty percent because these projects had both an upstream and downstream component the government documents clearly indicate they were only funding the downstream component which is the export facility and the over to see shipping interestingly in the argument over the reach of the e s a to their high seas activities the government very clearly argued it's only the downstream component only the facility itself you should look at in their argument over  the influence they had on the project they say let's look at the whole multi multi multi billion dollar thing where we only were ten percent of it they were thirty percent but even if that's the case i think the court in while they're thirty and in twenty fifteen with a similar issue where defendants argued there was no standing because of the federal action were taken away the stat state would step in and fill the void that independent third party would fill the void in the court said the speculation does not defeat standing at the time that these bank loans were approved and this is covered in our opening brief and page forty one the the loan applications stated the need for the projects that there was lack of capacity in capital markets that the projects had quote significate debt financing need and the global financial crisis made funding difficult but all we have to show is that we could have influenced it we don't have to show im bank had consulted that these projects and decided to not fund the projects the projects would never occur it's a lower burden but it's still not a free pass you still have to have something in the record that shows us that it could have happened exactly just records that all of this is conjectural and the converse of that is there's nothing in the record that tells me it could happen so what is in the record that tells us it could happen well we cited to various parts  in the record where ex im bank through its own environmental policies did attach certain requirements to the funding there were commitments for environmental monitoring and mitigation that would extend throughout the life of the project didn't they just accept australia had done ok what is it that they did that was more stringent what australia had already done it's well it's unclear because the actual contracts have been wholly redacted and not made available in the record but what they stated in the record is that their negotiations have been very productive and they've explained their environmental needs to the loan applicants and ultimately they signed contracts that the ex im bank claimed met their environmental policies we obviously argued that those were not sufficient but you know we are talking about three billion dollars of financing the second largest loan in the bank's history to one of these projects  substantial influence to add some environmental terms but does it when it's this big of a project and it's ten twenty five this even thirty percent of the financing i mean and that's being generous i think that i mean that's the whole question how much does this bank loan and are this bank can they employ once the project and from going forward right and our read of supreme court l ninth circuit law is that there has to be some possibility that's language unmask b p e p a or it could as the court said as long as contract revision could add additional benefits that reduce harms that's sufficient understanding i guess just real quick before your total time elapses here i mean what are are the sources for the black banks obligation you make a reference that the bank  statute is it allows them to consider environmental harm and allows them to make decisions based upon environmental harm and then they have a guidance document for their loans that tells them when and how they can add conditions to minimize environmental harm but the ultimate obligation under the claims we brought in this case are those contained in the endangered species act and the national historic preservation act because this is an undertaking that affects a world heritage area they had a duty to avoid and mitigate harms to that world heritage area by going through that process and if they comply with that process some of those harms may be mitigated bank make these kinds of loans i assume it's to encourage exports from the u s for some part of the project and if that's right then is it to be expected that if the ex im bank withdrew and would make the loans as some other countries countries bank would step in and do the same thing yes that my understanding of the purpose of the bank is that it's to foster the use of us things so for an elegy facility it's maybe a turbine manufactured in wisconsin or something will be used in building of it and there is some competition among various export banks but there are also the e u its export banks also have environmental provisions so it's we're not stating that if if for some reason ex im bank stepped away entirely that all environmental review would go away and again this is similar to the guardian's case where we can speculate that if they pulled out who might come in and step in but that shouldn't defeat standing a little bit of time to respond morning your honour's eric grant us department of justice for the federal defendants i'll turn in a minute to the very interesting questions about this so called relaxed standard for addressability but first i'd like to suggest that this case is moot as we documented in the rule twenty eight a letter that we filed last week both of these loans are fully funded that is all of the money that the  bank ever paid out has already been paid out and in fact one of these two loans the q c l n g project was fully repay back to the bank three months ago so we're faced with a situation now where the bank no longer has any power or influence to impose the kinds of conditions that the plant is that is that true i mean i guess these contracts can't be reneged on their loans can't be read negotiated or refinance now you're only paid out the money to the negotiations were done in the contracts were executed literally five years ago both loans in two thousand and twelve and so the bank doesn't have any kind of relationship with the project proponents here the only relationship is we we want our money back and we're due to get it back for one of these projects in the year by the year two thousand and twenty nine but for the second project we have no relationship whatsoever because the loan has already been paid back on july seventeenth of this year when was it in july been paid out been paid from the bank to the borrower and did that happen in july of this year no your honor that happened as we put in our declaration it was fully funded in march march thirtieth of this year we had predicted in a filing last december that it would be in may it happen a couple months early in march march thirtieth of twenty seventeen so really the bank has no more influence over these projects no ability to say if you don't do what we want you to do we're going to hold back some money well is that a moot question or is that a third party proof problem respect to standing but i think it's a moot miss issue your honor because it's developed during the course of this litigation and so our position is that if there ever were standing and i'll get i'll get to those issues in a second was one loan fully three years between the time the loan was authorized and the time the funds were paid out for the other loan it was fully five years between those times so those those are not the very short time periods that this court and other courts have held qualify for the or the very narrow exception to the movement's doctrine and of course even in those kinds of situations plaintiffs have traditional tools like motions for preliminary injunction or motions for injunction and ng appeal so are our submission is this case is moo and the district court's judgment should be affirmed on that basis but our main point of course is that the plaintiffs never had standing because they never satisfied the redress ability requirement and what's in your view the best are the most proper way to frame the redress ability here under the particular facts of this case and i guess considering the relaxed standard in the role plus the role of third parties first of all your honor i'd like to address that standard and where in particular it applies and there was a colloquy about the d c circuits law on this point and we cited a case on page twenty nine of the answering brief and this is from the d c circuit itself called national parks conservation association versus manson and the governments of myths that this provides the correct standard the court says quote the relaxation of procedural standing requirements would excuse plaintiffs from having to prove the causal relationship regarding the agency action but its burden regarding the action of the third party would not change so i think what it's important to distinguish between the two parts here we the government agrees that the standard is relaxed for what the agency would do because this is a procedural plaintiffs are allowed to quite frankly speculate about what the agency might do and are allowed to to put the best spin on what would happen if the agency had gone through the process so that that it's back you lation or spin for the plaintiffs is the agency might have denied these loans or the agency might  attached additional conditions to these loans so that's a could have standard the agency could have done one or both of those things and that's what's relaxed but there's no warrant in the supreme court's jurisprudence or in this court's cases for then relaxing the causal requirement of the third parties and what what traditional standing law  addressability requires there is that the plan is proved by non speculative evidence that those things that the agency could have done would in fact make a difference in the real world would in fact alleviate or mitigate the alleged injuries that plaintiffs identify and of course the district court considering all the evidence ruled and i want to quote the projects very likely will continue and impeded even if plaintiffs obtain the relief saw and that said on page twelve of volume one of the excerpts of record and the court considered  several pieces of evidence submitted by the defendants one of which was a small percentage of the total project value that these loans constitute ten point five percent and nine percent respectively but that was only one factor in addition was the fact that these are multinational corporations including royal dutch shell that have tens of billions of dollars of assets in annual revenues and are committed to these projects can i can i ask you because the plaintiffs referred to some you know environmental minigame requirements  or may have included in the financing of the of the loan and i'm sure there's very little record evidence on this and so i'm just trying to figure out was there a duty by the bank to and void environmental harm or at least to monitor turn environmental compliance and does the bank at one time or even now have any employments over the project components in that regard your honor the ease alleged by the plaintiffs here arise from the endangered species act and that first  duty to consult with federal wildlife agencies and the second duty that plaintiffs allege arises from the national historic preservation act and that's the duty to take into account environmental issues in a project like this and while we have not reached the merits we submit that the bank did satisfy both of those requirements and i would direct the court  to the supplemental excerpts of record that's docket entry twenty one pages thirty seven through fifty seven are the very detailed environmental conditions imposed by the queensland australia government and those include specific provisions for the protection of the due gongs green turtles and longer head turtles and i'd also refer the court to supplemental excerpts of records seventy six through ninety one for the other projects so there were numerous conditions imposed as a correct that the bank adopted those conditions and did not suggest further conditions that is correct your honor and one of our points is that plaintiffs have never suggested particular additional conditions that would have made a difference without causing the the borrowers to refuse the funding and continue the project without export credit agency without export import bank funding and why aren't the financing agreements between the brain bank and the project proponents in the record quite frankly i don't know your honor it i do know that if it were it was the burden to produce them in general in an administrative record case like this the the defendants do  but whether there was a defendant's that's you all right so direct your honor but but whether there was a problem with that what i do know is the plaintiffs did not make an objection district court or certainly did not  ruling one way or another and bring it to this court's attention if there were a problem even if you're obligated they would have needed to object i believe so your honor so i wanted to get back to the very last and i think important point about why these projects would have gone forward even if the bank had done the draconian take in the draconian step of denying funding and that was that funding was available from competing export credit agenc let's talk about that because i am curious i mean this was four point eight billion dollars that the export import bank gave and it's i think the second largest loan that it given in its history  how is how can they not influence the project proponents what that amount of money seems rather presidential for the export bank this project your honor certainly that's conceivable but it's a question of fact like these standing issues are that's determined on the evidence in the record before the district court and i i i did how many other finance  two page thirty six his detailed declaration based on his thirty three years in international banking that if if the export import bank of the united states did not provide funding it was likely that china speculation they had declarations in which their member said i believe this would happen or i hope and expect this would happen but really there wasn't any competing evidence on the other side and the district court reasonably found as i quoted before that very likely these projects would go forward so to get back to the to the relax standard we can we can assume in plaintiff's favor that the agencies might have wanted to deny the loans tried to deny the loans but as a matter of fact that decision would have made no difference so a court order for the agencies to go through the process sees that the plaintiffs allege that needed to be done would not have redress their their injuries which of course were limited to the allegedly harmful effects of dredging and shipping off the coast of queensland australia so again i think this case is moot the court should affirm the judgement on that ground but even if it's not moot plaintiffs never had standing because of their failure to satisfy the redress ability prong even so i mean do you disagree with revenue raisers do we have no basis to disagree with the the money has been given to the to the project proponent and it's undisputed that for one of the projects money will not be repaid for another dozen years for the other project their declarations a little unclear it states the loan has been fully prepaid presumably that's a typo and it should have said repaid but we didn't it is what it is but  mootness you know there's multiple exceptions to this and this court has held that you know in cases even after construction occurs because mitigation is possible after the fact it's not cited those in our brief neighbors of the mountain is one control the city of long beach i would know if you do find this case moot you know we believe that the district court summary judgment and motion to dismiss opinion should be vacated so they don't have since unappealable orders and be precluded of one thing i did want to point out is on on the question of did ex im bank have any influence beyond what it was already in the australian environmental documents on page forty three of our opening brief we cite to portions of the administrative record where ex im bank states that quote australia pacific has been very cooperative in response to comments in the preparation of environmental mitigation plans quote compliance gaps identified by the ex im bank would be addressed in the forthcoming action plan and there's a similar record site to the queensland curtis project so there was im bank did try to influence things it had some influence and lastly on the key issue of third party standing in a substantive versus a procedural case i would point the court back to looking at salmon spawning because there you had both kinds of claims dealt with simultaneously you had a procedure a substantive claim where the court said you have to meet the likely threshold because the third party candidate is not before the court and you can't meet that but your procedural claim is different it's a lower standard and even though that involved the same third party not before the court the court simply said as long as the process could result in the federal agency considering more mitigation measures that sufficient for standing that is the law of the circuit and that's why we believe that we have standing in this case and it should proceed to the merits thank you very much  today we are very grateful for your presentations to the challenging case and that case is now submitted and that concludes our docket for this morning we will be