impacts including on the view shut in the area wetlands historic properties farmland and other attributes and is vigorously opposed by many members of the community where the project is being built the highway administration did not prepare and environmental impact statement in connection with the project nor did he even prepare what is referred to in the implementing regulations as an environmental assessment which is ordinarily the document that is used to evaluate whether the impacts are sufficient to require any i x instead this project was subject to what is referred to as a of as an environmental assessment and your contention is that the document is not enough indeed to to put we're lask your contention only slightly your contention news the only way to see whether you needed to prepare an environmental impact statement wa as i indicated on the statutory framework actually an environmental assessment is ordinarily the document that is used in this court made that clear in the road case as well as a number of other cases and in terms of the length of the environmental assessment i have it legal answer and then what i think will be be a more important answer in this case which is i think what your honor is getting at what is the difference why does it matter that they prepared this environment to report rather impacts to warrant the purview was a bit like the math professor who fills up an entire blackboard and then announces you see it simple but without being overly flippant about it let me get to the heart of your honor's question which is why does it matter what's the difference no i didn't ask why it matters well i think that i ask what sense it can make to have a provision for an exception if you can never take advantage of the exception and that's your argument and that let me reply basically an indirect attack on the very idea of an exception and let me respond to that your honor because i disagree with that respectfully this particular kind of exception is different from other exceptions and as we set forth from the briefs it's referred it was a d list exception the federal highway administration set forth a number of exceptions in what is referred to as the c list exception which on their face if you invoke one of those exceptions it almost invariably leads to the answer why that isn't enough if collaboration it is allowed and it appears that the regulations allow federal collaboration then then then why bottom line was this process inadequate whatever you want to call it let me directly answer that your honor with regard to i think a critical example and that's the cumulative impacts issue many commenters specifically pointed to the potential for projects like this one to have cumulative effects along with other projects that also impact the kinds of resources affected here but they concede that in this case both the federal government and  ways to analyze cumulative effects rises as the factorial of all possible effects and you say consider the cumulative effects from all other projects well assume there are ten other projects ten factorial it's a number it's not clear whether it could be analyzed in the age of the universe and if this doesn't seem to be a plausible understanding of the way to apply a categorical exclusion indeed it seems to be an argument that no analysis can ever suffice because there are always more cumulative effects to study and again your honor i think the critical distinction here is between was for was a c list exclusion and this is really what i asked the court to really focus on and i think it's a way of delineating the boundaries of our argument in a way that i think should help resolve that concern because again with the c list exclusion which are definition only de minimus it impact so to and that's just a challenge indirect challenge to be sure to the very idea of any exclusion or exception well i don't think that we want a full environmental analysis to see one of necessary what we want is at the very least what the deeper regulations require which is an environmental assessment prepared by the federal highway administration and again i think the scale of impacts issue is a critical one because again if you take one of these c list exclusions which are for example nearly paving over a preexisting area which will most definitely will have to minimize impacts and therefore something which is zero or close to zero plus zero will always equal zero that's not what they applied in this case in this case they applied this de on its face requires documentation so i think this goes directly to the heart of your honor's question documentation that significant environmental fix will not result and they admit that they did not analyze cumulative effects at all period you to take an example they can see that this project will result in twenty acres of farmland destruction which on its face we submit is potentially a significant impact but even if you accept that is not in of itself significant in the ordinary case one would at least look at whether or not there are other highway projects in the area that are also resulting in highway law and excuse me farm land loss and is that result in a significant impact here in eight admit categorically if i can use the word that they did not look at cumulative effects at all to take another example in this case the environmental report concedes that there would be quote a quote substantial loss of troops forests in the area many of which the local community members said were extraordinarily important to them and to the character of the area now even if you accept it substantial does not equal significance which i submit that it does in the government's response was well that's the mantic i mean this court skills you know arguable semantic issues and usually applies plain language analysis to statutes and regulations we asked the same be applied here but even if you accept that substantial there's not enough itself equal a significant impact what they did not look at a this was are there other highway projects are there other construction activities in the area that are resulting in any additional substantial loss of forests and so although zero plus zero plus zero or close to zero plus will always equal the minimus or very little that is not true when you're talking about substantial forest loss it's not true when you're talking about more than twenty acres of farmland impact it's not true when you're talking about more than one and a half acres of wetlands loss it's not true when you're talking about impacts on several state listed species it's not true when you're talking about cutting down several the hills that there are in the area that in turn will affect the aesthetic quality of the area so again this argument is a very basic one based upon the regulation and the plain terms of the regulation and their refusal to consider cumulative impacts at all which we think is required both by section seventy seventy one zero one one seven in significant they don't even look at the cumulative significant part and you run or go back to your question for the moment about how do you do that kind of analysis i would submit that would be a hard question a case where the agency endeavored to do it it came in and said well we did look at some of the highway impacts that are in the existing area we looked at other impacts on top of these and we came to the following conclusion that we could really do a more extensive in depth analysis but that didn't happen here in this case they've taken the s with within a category call an exemption because what you have here is i mean they're they're not turning into that road into a four lane road  they're modernizing a two lane road and i don't want to seem the least bit insensitive about you know the twenty acres or you know all the other ramifications but i've been wondering if this private well our word what really cares to this thread can be made i mean have you thought about that issue or honor and i appreciate that question my clients have done opposed to any repairs they were they were pows repairs or reconstruction it's referred to that actually take up almost the entirety of what was previously considered a four lane highway so in terms of the footprint it's basically identical but in addition to that your honor what my clients have proposed which would not only be less environmentally impactful but cost a fraction of the amount with my clients who actually would push it what we were  fiscal standpoint is the woodwind solution which is to have far less consequential impacts than a twenty million dollars project which on its face seems to be a major federal project but would also cost a fraction which was have far less extensive repairs don't flatten as many hills don't take as much of the footprint but a forty five mile per hour speed limit and your honor when a forty five mile per hour speed limit was put into this very stretch of road as we point out in our  it actually lowered the incidence of accidents substantially and the government's response to that in the environment the report is well we didn't have that in place long enough to find out whether or not that would actually solve the problem well the obvious answer to that was during all these years why did they not institute a forty five mile per hour speed limit for a length of time to find out whether that would solve most or all of the problem and i submit that may be a reasonable question for the other side but it also highlights to go back to the original question which was what do we get at least my take on the original question apart was what do we get out of at it or at the very least an environmental assessment and that would be a mor pacifically for the wisconsinite police at issue in this case is a routine but but important project to rehabilitate and resurface seven and a half miles of state highway in wisconsin where the crash rate is sixty three  percent higher than the state average and the rate of crashes that result in injury is forty five percent higher than the state average the project fits squarely within an existing categorical exclusion the highway modernization categor for which the federal highway administration determined through rulemaking that no significant environmental impacts will result and importantly citizens group doesn't challenge that rule here rather their argument is that the circumstances of this particular project are so unusual that it was arbitrary and capricious for the federal highway administration not to conduct additional new review in this case this panel should affirmed the decision of the district court but that isn't the case because one f h w a and the wisconsin agencies collaborated over four years in a one hundred forty page environmental report and to the resulting finding that this project does not present unusual circumstances making to determine the fewest types of projects don't have significant environmental significant environmental effects all that's left at that point under the c e q regulations is to determine if this project present extraordinary circumstances that's the c e q regulatory language n f h w a's new regulations do that in two ways the first way is that they require appropriate environmental studies with the state if the project could involve unusual circumstances such as a substantial disagreement on environmental grounds and a second way for quote to us a categorical exclusions like that in vote here is documentation showing that no significant environmental impacts will result i understand that that at that age a so you added the report to make certain suggestions but where where is the evidence that  federal agency independently reviewed this report and its conclusions are your honor the first place to look for that evidence is the very first page of the appe dis appeal which is the page on which the f h w a officials adopted the findings of the report and signed a statement indicating that they had reviewed the report that a categorical exclusion was appropriate and that they had addressed public concerns so that first page where they adopted the findings of the report and attested to that fact through signature is the first place to  would like to know a way or in this record the independent review exists as the district court found the record is replete with emails back and forth meetings meeting  notices very importantly a letter from the f h w a ahead agency official in the region to the wisconsin department of transportation explaining in the draft environmental report some of the problems that  actually look at on a pain or pain tools that is entitled independent review is there such a thing or no your honor there is no such thing in this case i think the thing that most closely speaks to that is as i mentioned before the very first page of the appellant's appendix but i would note and citizens group argues that some sort of a separate document was required not only does need to not require a second document but producing a second set of evaluation to indicate that f h w a had done separate evaluation would have contravened nepa is charged to produce a single environmental document with the state agency w and the see each year regulations charged to produce joint environmental review and throughout this deceit you write regulations are littered with references to the need to conserve resources and not be duplicative so this is  this sort of review your honor is typical in these sorts of cases where the federal highway administration is acting as a funding agency the agency that's closest to the ground  understands the at the best understands the actions that are going to be taken is the state agency so they initially prepared the environmental review in fact i'm i'm i'm aware of that and of course i'm of the very first page of that appendix submitted by the appellants demonstrates that the average w a adopted the findings of the state agency and attested to that through signature and second f h w a's questions on various aspects of the project its the project team of the wisconsin f h w a project team that reviewed this over multiple years and they're really back and forth with the state agency so i think those are the two best places to look at the record ok now now let me just go a little further it seems to me that we're supposed to review the work of the federal agency and the document that is under review was written by the state and then signed on the called for by the program agency to me to be perfectly honest and frank and math test and saying the answer is twelve without showing any for work on how you got to the answer so yes well with respect you're on foot and when i do i need to really understand the level of participation in the process and what we're supposed to review and to me it sounds like you're saying review the first page of the appellant's appendix well no your honor what this court should review is the decision of the federal agency that this project didn't present any extraordinary circumstances that decision which is documented in the first page of that appendix is based off of that one hundred forty page environmental report so what's being reviewed is the decision the basis for the decision is this extensive environmental review which was which was put together in the first instance by the state agency but reviewed collaborated on and guided by the federal agency and not said t you give us an estimate of the number of person hours of work that went into the report that concluded there was no significant impact your honor i'm not sure i do know that there were for over four years you had a team at f h w a reviewing this report and you also had a good team that was constant there was constant attorney may be able to better speak to the wisconsin person hours that went into this but it was  lots and lots of work over seven and a half mile and on his ocean program that's right you're a good loser there's a two lane road yes at the the lanes are being expanded by a foot each and bring it up to standards for speed limit reduction they ran studies with the university of wisconsin traffic operations and safety lab and looked at research from the transportation research board and what they found was that reduced the end wisconsin traffic operation safety lab actually posted a forty five mile an hour speed limit on this road for a period of time to study the effects and what they found was that reducing the posted speed limit below what the highway is designed to accommodate increases the variance  vehicle speeds and actually creates unsafe driving conditions but in addition the project goals here were to address or pavement conditions and safety concerns and even if all the cars had complied with that lower speed limit in highway up to federal and state standards to accommodate the vehicles that were that were us with the state and federal agencies on their conclusion but they don't point to anything the agencies i didn't consider they don't point to any to me a lot of impacts the anything that f h w a missed with respect to cumulative impacts and again and only because appellant's did hammer home this point on the impacts that if you see each year regulations say that when you're conducting a categorical exclusion when you decide that a mpact analysis and that analysis would take into it fact this project so that's where some of these effects would get taken into account now if all they're doing is these highway modernization projects at the agency found that this project should not have been in effect categorically excluded if you look at pages one eighteen through one twenty of the appendix filed by the federal government the federal government specifically said controversial therefore there can't be a categorical exclusion that can't be right can it or that our position is that where the environment report itself affectively concedes significant impacts by saying a substantial number of trees will be destroyed twenty acres of farmland prime farmland wetlands with no identified mitigation we're not just talking about opposition in the abstract cumulative effects from other highway projects this is exactly the kind of controversy that the regulation and the