next case of the morning also a matter of great public interest number seventeen five zero sixty three should be for fate for fire versus texas department of transportation and we'll hear from mr bunch govern the agency's actions or do they in fact not apply and you apply the old common law for factor segmentation test from the say barton creek case and the earlier concern about humanity because if there is no connection there can be and then similar to suggest synergistic relationship between object and object case and as the rule the kima back to his rule the single course of action rule by c q lays out there are three separate standards there's cumulative actions connected actions and similar actions that's where you have projects that i'm connected to each other but they're in the same area and they're pending at the same time with cumulative impacts on a defined events are not part connected te needs to be one and that in particular with my pike intersections the way i would look if they decide it's unconnected they don't have to go any further not that may be wrong and that thing it was on and that it would be important right that's why they don't have to follow sometimes they do absolutely connected actions would have communal cumulative impacts but unconnected actions multiple minds that have to be permitted by somebody are in the same area the same watershed highways are in the same watershed but they're not connected to each other but they have cumulative impacts because of this defined area that they're taking place in and what the supreme court of clippy said is if they're pending before the same agency at the same time with cumulative impacts you have to study them when they were making first the decision to look at say twenty five southwest phase one by itself which is only funded by state money as as they divided it up your honor that is correct it was pending at the same time as the other two before the same agency with cumulative impacts and the case law and the rules talk about if there's cumulative impacts it doesn't matter if it's the federal or non federal actor ok so you have to study those together right what is the limiting principle here in terms of your agreeing that it's not the exact same connection like i drive down louisiana street in turn on dallas street to get dismissed straight on if i just said that quickly for houston or not but anyway it's not that connection it's so what is it in other words if they're building a road in austin we don't care in dallas so obviously at some point even if they are temporarily connected they're not sufficiently geographically connected to matter what is the limiting principle there barton creek because as the court correctly observed and repeated over and over as a critical factor though the the pieces of that proposed outer loop were not pending at the same time it says most of them virtually all of them were somewhere off in the future merely speculative or contemplated the facts are the opposite but they are absolutely pending at the same time say barton creek however refer has a big section on segmentation and applies seven seventy one point one eleven f and the rules there are whether it's two to ensure meaningful evaluation  o let's see the action in each fine fonzie shall connect logical term many and be of sufficient length to address environmental matters have independent utility and not restrict consideration of alternatives now that's exactly what the district court applied in this case your honor we disagree completely again well he says certainly articulated every one of those and then applied those criteria to the intersections and to the connecting you know with four fifty five that doubling whatever a wonderful aspect of this case is that it gives the court a great opportunity to clarify a great deal of confusion that has emerged in the case law as a result of say bargain creek case it was funny because as the briefs expressed it and i minutely we didn't look at every case but as the briefs expressed that it is your side that has created the confusion because other circuits of all lined up with say barton creek what what what i disagree with that there's case after case missed in the case law it was not an administrative procedures act review on the record it was a trial and so the court made some of its own findings based on the evidence presented and so then you see courts follow that pattern and rather than apply administrative procedures review to look at the record look at how did the agency justify the decisions that it made do it under state farm motor vehicle manufacturers did it consider the proper factors or did it consider improper factors and apply the actual rule so it was a trial on the merits it wouldn't a p a review the second thing that everyone misses are a lot of people missing say barton creek is if you read it footnote fifteen it recites the the relatively new rule at the time but then says we don't follow the rules because you have to have some piece of what you're looking at be federal on which to then decide if that federal scope is bigger than it was drawn and there they said there's absolutely no federal piece yet all the federal pieces are somewhere off in the future so they said so we're going to fall back on the common law case law pretty rule where the courts had recognize that sometimes agencies would front run a project with a piece that's just state and then come back with the federal money later so say barton creek does not apply the federal highway administration segmentation rule it applies a common law rule so then we say for example in o'reilly and other cases a simple question how does this map help you it shows the two pieces that are federal the one state and then that there book in did with federal projects that are also being pursued in a continuous fashion at the same time so whereas in say barton creek there was a state case and there might have been federal things later here it's exact opposite there was federal all over the place except for this one part in and we believe the record a screw so clear they didn't even look at either the federal exact same time on this incredibly vulnerable recharge zone shown in blue on the mount that the agency itself on the traffic issues traffic impacts that element impacts they only look at the cumulative impacts because they all of the traffic studies look at all three together they never even imagine that these three pieces are all going to be built at the same time had they even imagined that then they would have looked at the direct traffic impact of each piece they never even did that jumping over to all of the other environmental impacts they did the exact opposite they never looked at cumulative impacts and they only put on their blinders may please the court i'm jane weber for the central texas regional mobility authority i'll be arguing on behalf of all the apple lease on this issue of the appropriate framework issues one and two and then matthew both flop representing texas department of transportation will argue point number three which is the substantive question of the seven day of challenge to the intersections and regarding the you asked what is the what is the framework what is the precise issue presented here and what happened in the district court review the intersection c a a using the framework that this court articulated in the save martin creek case and determined that the project was properly reviewed in its own way and this court should affirm that decision in exactly the same way that another panel of this court affirmed that same decision on the preliminary injunction stage for four reasons first save barton creek is the binding controlling precedent in this circuit and the precise question before the district court with the precise question before this court is whether the district court erred in using the save barton creek framework when evaluating whether the agency properly scoped its need to review that's the inquiry how do the courts in an a p a appeal evaluate whether the agency complied with nepa for purposes of scoping highway projects and in this circuit the bonding authority is saved barton creek the and it's not just in the circuit judge multiple highway projects must be is their relation sufficient that multiple highway projects have to be evaluated together in a single need to review because that's really the question at the end of the day alone it's holding is that to determine the proper scope of a need to review the courts the agencies and therefore the courts reviewing on an arbitrary and capricious standard of review consider for factors do the projects and the project that we're reviewing does it have a logical termini does it have independent utility does it for close up future alternatives and does it irrevocably commit federal funds those factors and those factors are taken from the f h w way from the f h w a regulation that is that implements the c e q regulations for purposes of high way of determining meet the scope for highway projects and that leads me to my second point not only is save barton creek the binding precedent in this case but it was right the court got it exactly right and saved barton creek because what's said issue in the highway in scoping for the purposes highways have transportation issues mobility issues issues that are unique to transportations and highways and what the f h w a regs do is take the concepts of the that where does it say that well that's what they the the delaware river keeper case talks about that about the use of the agency specific regulations and that's what the say barton creek but only provide cumulative effect that is not within the regulations really what the courts have actually done your honor across the board is in analyzing scoping what they've done is it is used to save bart and create test either articulating the precise verbiage of the a rag or the precise verbiage of the same part and creek which are different words but the same the same substantive yardstick and then they have applied that's what if the courts actually done really is the question of what the courts have actually done and what the district court did here it's because you know backing up what is judge eckels supposed to do he's honor that's that's exactly what i'm saying that because that is exactly what the federal courts have done they have they have uniformly implemented the say bargain create test the f h w a regulations when determining the scope in general at each step way regs in particular the fifth circuit in say barton creek and a prior panel of this court in a preliminary injunction in this case this is the appropriate yardstick and what is what tells us that that's the right thing to do is the complaint in say barton creek which is in the record here it appears in the record starting it our way one thirty two and if you look at our way when it actually starts at one o seven but if you look at one thirty two and one eleven the complaint in say barton creek uses the phrases that mr bunch says ought to control the analysis well i'm rosario but you know  a complaint goes by the board to after the case is tried and decided on the merits absolutely your honor but i just wanted to make the point that they say part and create complaint says these projects have environmental synergy they have synergistic environmental impacts well let me your but you know the court i mean to be quite blunt about it the court in say barton creek is supplying only the segmentation analysis because there was nothing to accumulate with well the question no because they found that all the other projects they applied to segmentation under seven seventy one one eleven f but they concluded that all these other projects were on the drawing boards not even you know no shovel of dirt have been turned yet and that so cumulative was irrelevant to the analysis your honor i disagree at in the say barton creek opinion at nine fifty fed second at eleven thirty one they explained that while the austin outer loop as a whole was still a twinkle in some engineers eye and had not know shovel of earth had been turned this specific segment three wheel which is the other party forty five was under construction the two projects the state project and the federal project were both partially constructed at the same time and they physically actually connected to each other and the complaint said that's environmental synergy and what did the fifth circuit do they applied the f h w a regs and articulated the test  honor i don't believe that's correct i believe there's a well first of all you don't need to worry with that because they connected and cumulative c e q concepts are not a political under the say barton construct but but those two terms they were not well what we found that they had independent utility we found that the district the agency and then the district court approved  provides exactly the sort of yardstick that is appropriate when analyzing highway projects what are the termini what is the utility does it get you from a to b standards lie do these two roads have environmental synergy correct is that so how does this map help you that that map just shows you where they are it doesn't help or hurt anybody it just shows where the project what would you have me learn from this map because it looks like everything's all over the same general aquifer which is the point that your council i was at wants me to get out of it what would you like me to get out of it that that that's where they li in austin texas the they say barton creek test and the courts uniformly nationwide look at the independent utility the logical termini objective criteria that you can describing i mean those are all common sense terms what do you do about fitty off some frithiof sun which talks about a cumulative impact yes and if this were not a highway project governed by the  judge jones you noted it state highway forty five is a state project only state money was used is being used to fund it and i also as of the fifteenth of may fifty million dollars of state funding to have already been spent on state how we forty five which is two thirds of the total budget and it's going to be ready for cars to drive on probably about a year from now so the the the actual construction is very far along but even if going back to the issues of forty five is a state project and what that means is that there is no way for it to be subject to need to review except for a segmentation analysis only if it was improperly segmented under the state barton creek framework can the bottom line in your argument is if the segmentation was properly done we're done exactly how long exactly and forth that lease my fourth point if this the action rule on top of it all those people were just too dumb to know that we were supposed to bring this concept in if you do that it will up and what is a a very well settled body of law and it will undo really countless agency decision to better argument from your standpoint and i'll be interested to hear the other side to sponsor but isn't it a better argument to rely on what you did in your brief that if none of the neither one because i'm only going to focus on the express and the intersections project neither one of those two that have actual federal involvement has a finding of  significant impact they're both they both have fun right then you don't have to consider cumulative well run or that's exactly what mr post logs a lot is going to talk about the and  particular project the segmented intersections project for instance has no significant impact then it is not legally necessary to consider cumulative impact with other projects and circumstances well your honor i wrong no you are correct but but the and here's where sometimes there's some confusion is in the in the nepa verbiage there are two there cumulative actions and cumulative impacts and sometimes those get get conflated cumulative actions is what we've been is the save part and create question actions or project and so this is a segue into your colleague who's going to talk ways and tributaries and all of that and not think there's going to be some impact right your honor well the recharge zone of that we're talking for lives directly in the center of austin texas so it's a highly urbanized setting already the project intersections project is at the location of an existing highway already and had very limited in scope all it's doing is changing the existing intersections of two roadways and reconfiguring them the problem to actually make the environment better because you don't have your body stalled out on the roadways like they always are in austin absolutely and in addition to that the project is putting in place updated best management practices and updated design design criteria the scientific findings in the environment so you are you saying there's already a messed up region here in the middle of austin and you're kind of making it a little less messy and so that's why there's no impact think like a walk into the everglades and building a highway absolutely not your honor the the administrative record included detailed findings over the last decades of water quality collected by the city of austin and barton springs and these decades of scientific analysis show that in many cases declining trend in contamination that is associated with roadways and so basically what the so we should have more roadways it's good for the environment well  some compared to other factors that contribute to water quality and updating roadways is a good thing because it puts in place new new design requirements new detention ponds that help the water quality that was exactly what the scientists who researched this  this quarter and the deference to in those find of the mitigation techniques are what make the total impact nothing that's part of it is it is well the benefit to when a car drives through more quickly you don't have all the problems of car sitting there idling on the roadway right your honor this guy's correct those are those some aspects of the and again this is an urban and highly urban setting and there's already a roadway in existing there the in addition the truth is they know you are because the city of austin is an attainment area and so there is no requirement to do an air quality analysis and opposing counsel doesn't argue otherwise and each of these was outlined in a cumulative impacts analysis which in turn refers to other technical miranda and the environmental assessment biological memos water memos geologic memos all of these found there to be no direct impact  asking the parties to do is a pointless task that will not inform the analysis here and they cite no authority to the contrary they rely on for dobson but in the three decades since that case was decided they don't point to a single case and which any court has required the mechanical application of to that case and the fat especially not in the facts of this case where there are no direct or indirect impacts the text of follow guidance from the office of  issue and have essentially bless the exact process the tech sought as in this case in addition as opposing counsel alluded to the traffic analysis in the noise analysis did in cooper incorporate as baseline  data the existence of other projects projects that were planned for the future including forty five southwest and the study of the water quality in i c u on time was up and i finished my statement and the study of water quality  honor that's a great question tech stocks one of the first states that has been received full delegation of the federal highway administration powers and so it's standing in the shoes of exactly the federal highway administration in this case impact versus will a course there is impact we would give some deference to the conclusion of no impact you would if if they had followed the correct methodology and this is what the hole ative impact of the other projects not just the ones pending but also reasonably forseeable but they did not do them i have is if we begin at number forty two and we add zero we're still at forty two so if the number is zero i don't really understand why it has to be added to another number because i'm not very good at math but i know when you add zero to some other number it doesn't make that number bigger we would respectfully submit as you observed you can't build a highway and we believe  was misrepresented there not just fixing intersections there adding just the two mile stretch three new highway lanes with each way six new paved lanes there adding a tremendous amount of pavement but if the end brief in twenty thirteen u s fish and wildlife service a list of the awesome blown salamander as endangered and specifically pointed to urbanization highways and highway pollution as a major threat to the survival of the exact area and their analysis was all about cumulative impacts and pavement as you add pavement you add pollution and ok rows going over the water that hard it's not tell me how the highway relates to the water how far above it is it it's the first just another you know straight down and caves and sink holes directly they're building one hundred feet down to the water table and the water flows to barton springs in less than two days from this area ok i'm ok so why do we assume though that people driving on a highway that now will be able to go faster or not have as much time to throw litter out the window and all this kind are going to it's going to make it worse i mean i understand the road on a lot of pavement but that seems like a sort of generic concept that you're saying has to be accepted whereas they're arguing that this makes things better this is already a i think most of us have been on this part of mopac at some point and it's not as if nature is on either side of the highway there even though it's technically the recharge there is that one part that he set aside area for the gold she were buller if i recall correctly but there are houses and there are strip malls and there are gas stations along every inch of this area and what you're talking about is two overpasses and and taking out pavement that already exists because you're condemning the models on either side and expanding the amount of concrete right under their highway lanes or turning adding highway letting the whole southern part of that highway is widely rural the three and a half mile piece is entirely new highway across recharges on through preserves the green spice if i could jump back to say bart apply those state farm tests to see if the proper factors were followed and the improper the factors were not considered when the decisions to split up happened opposing counsel misstated that one of those two projects and s was federal they were not they were both state the federal was all out into the future which is why in footnote fifteen the court said very clearly we're not applying the federal highway rule well  they did but the rule says all dicta no but the rule is more specific and has two parts on independent utility that influence have to make sense and it has to be of sufficient length to evaluate impacts on a broad scope that does not exist in the four factor test and because that is fundamentally different and they didn't apply the rule they violate the state farm arbitrary and capricious test and similarly on the independent utility test there is economic impact component which was not applied thank you ok thank you very much