tax bronchitis permanently reduce lung function cancer and other health hazards federal highway administration has chosen commuter convenience over public health without ever considering the health risks posed by the most dangerous highway air pollutants and framework governing uncertainty in the analysis of environmental effects federal highway administration disregarded rules that require the agency to invest resources to address uncertain impacts finally contrary to the district court's holding nine both govern individual highway projects that may have adverse environmental effects including harmful effects from air pollution both statutes require consideration and disclosure of adverse effects of highway projects and would have to do with interpretation of the statute yes and that's another thank you your honor because with regard to section one zero nine it is an abuse of discretion for the agency to not consider any of the relevant  has all right i know you want to spend time on your first three challenges but i i'm going to you can go ahead and do that but i want to talk about the last one to sell ok i'll try to be  highways had ample evidence of these dangers when it approved the project without this information federal highways could not determine appropriate mitigation measures ascertain the cost of these measures or make a final decision in the best overall public interest the district court said that the agency determined that both the agency but that's actually inconsistent with both the desultory requirements and the agency's position requirements both section one hundred nine and need are that the agency must gather and evaluate information it can't rely on existing information can't rely on the current status information must do the work and invest the resources necessary further collection of data or collection of data may prevent speculation all right in making that determination where does the agency expertise come in here the agency could have decided that it was not possible to resolve the uncertainty but it didn't do that here it just said that the current understood that it did not currently have adequate information  significance of doing that and environmental impacts statement is that rather than just the agency's own interpretation it will serve the purposes of need because it will allow public inputs and it will allow the that is clearly significant and under marsh and national parks requires a supplemental yes the under certain she is related rather intensity or extent of the impact now to requires a supplemental yes because the new information documents that we're talking about that said how the agency came to this didn't reference that they have some internal memo or something how they came to set up these open meetings are well it's a complicated process  transcript whatsoever from the agency and it is a trend these are public these are statements made by members of the public but they're not made in public it's not a public hearing in that respect they are made in private to is do not refer and the only public hearing part of this is there is there is not there's the transcript doesn't even include any of the agency presentation and the it is only there's these private conversations with it's not good for the individual do you have an opportunity to meet with officials from the agency but none of those are public in the sense that they're on the transcript recorded their private conversations in a room with other people where other people can overhear them but  alternative claim because the traffic lights levels on the freeway are our issue and in fact your honor as a factual matter the newspapers reported and you can and we even we have the documents i submit to the court that's part of the regional transportation plan for las vegas area and they asked shows that the traffic levels will be dramatically higher than they were predicted to be in the environmental impact statement there now as a few thousand and five  are no problems with it  standards now that just goes to what kind of effect this has but there's also been studies that show that this sort of correlated subsequent studies can remedy earlier defects if this court considers that a defect at if we had been arguing you know say if they got something positive from their standpoint and they were arguing the court to consider would you say we could consider it i think what i would argue is that that would be an addition that would be a later consideration because what we're looking at is the record at the time to challenge me in terms of the slater determination of the taint that goes more courts like remedies but in terms of kind of challenge was the only thing the agency can saying is they considered them that they didn't find them persuasive and they're entitled to some deference for their agency expertise is that your argument on that yes your honor in fact as a general matter what  hear that in the argument they're saying they're saying gather information as if highways has to perform individual scientific studies but gather information is a term that involves both you know talking to other agencies finding out what not the case that all if you look at the records what highways are describing is a pattern of research that needs to be done nothing to the extent of let's do this measurement looks let's do this measurement and we can point out the answer you know these are requirements here because what well this is not and this is not this information is not in this the environmental impact right and this is about the request for a supplemental and primal impact statement and in terms of the request  what highways has to do as an initial matter is determine whether or not that kind of new information that the color new information is even applicable to the las vegas area and highways did that harley's looked at that information and determine that it's not just matter this regulation doesn't apply it doesn't apply to the determination of whether or not to produce supplemental environmental  impact statement requires just let yourself go thirty and me right right they have two different challenges they have that challenge the requirement to produce a supplemental an environmental impact s you have to look at these two separate challenges going to what sierra club characterizes as uncertainty highways found that basically there's the state of the science isn't such that any kind of information useful to decision maker could be provided  which as the supreme court recently recognized in public citizen and you know isn't required when the information provided would serve no purpose to decision maker here that's the case what your club characterize commission so what you're saying is there were two viewpoints there they looked at both of them and they picked the one that was contrary to what c r wanted and so that therefore that alternatives study began characterizing this as sort of an immediate rejection of any kind of mass transit proposal that's not the case your honor if you look at the alternatives that are studied even the one that was adopted includes mass this entire alternatives review was part of a large distance of improvements coordinated with the state of nevada it integrates other state projects and that's the major investment study process  with both state land use plans state other like other transportation projects of the state and although you know recall the chance to say well you can't rely on these environmental quote unquote environmental studies of the state that's not what highways was doing there highways was relying on these determinations of whether or not these six guys you don't have to consider every alternative correct yes your honor you only need to consider what has has highways adopted a public position on whether the open house committees comply with the section it hasn't adopted a position on a rule making your honor  position that actually these open house hearings would enhance the purposes of one twenty eight well what happened transcript is made in an open house meeting and doesn't fully reflect what went on it that actually occurred in which the highways officials present the purpose of the project right if we didn't feel that this open house meets the requirements of one twenty eight what's the practical effect of that on this project i think that the practical effect on this project if we finally didn't comply with one twenty eight if you didn't comply with one twenty eight i think there is a lot of good will discretion actually within the court to determine what kind of this act this has i mean is this court found that error here i mean if you're essentially saying turn equitable discretion that you're saying well we're saying that open houses don't comply with one twenty eight but but what you're saying is that here it was harmless because in th written that will go that will go right but other people there won't hear what that person what the written statement was write that the technical talk the practical effect is that people have heard you can tell from the types of comments transcribed people are responding to other people's comments so it isn't usually whether these open house procedures comply with one twenty eight yes your honor right and then if you make a statement the way that this is set up if i want to go on i want to make a statement my statement down but other people that are there aren't listening to it correct yes they are but there's nothing in one twenty eight that talks about people having to hear other people one twenty eight talks about  i don't think this is the public hearing that's not really going to do him any good there they have to wait till it gets this posture in the case to challenge it or they can also provide that comment in you know there's been no comments made that they don't think th able to provide these comments not only talking to you but also writing it down there's been absolutely no objection made in this record about that and not only that but in terms of wolf we don't really have a study or a comment period on the rule to say whether that would work right right so would you agree that i mean if if there are different kinds of chevron deference if you had a traffic both without the highway and with it and they determined that arrow daschle be less vehicle miles traveled using the u s ninety five project than without it mostly because is some kind of a partial injunction pending appeal in effect right now all right yes your honor what's the status of the project and if that partial injunction all of  fact harm the environment in a way that is both definite and knowable should highways need to engage in the types of review by sierra club which requires development of very basic science halted construction at the time will lead to higher congestion and stop and go traffic which will in turn we displace the problems and actually more emissions the temporary traffic control measures that are in place right now are not good for safety either there are also costs to individuals due to the excess time spent in the car again because of the congestion and also more emissions in taken by people as the congestion few a few points that have been raised one is that the attainment standard for trying particles is not really relevant to this case it's based on two thousand data it's not based on future obligation to require to analyze feasible alternatives well i wouldn't ration can use data from that major investment study it