clerk i would like to reserve five minutes for rebuttal i guess first i'd like to just point out one thing which is doesn't appear to be disputed by any party which is that plaintiffs larry klein has not the issue before the court on the issue before the court i'm just asking you the question whatever the issue is before the court whether you think that the project here or grant your project the growth of the forest regrowth of the forest preserves a sustainable program it's certainly an ecologically sustainable in that when you cut down a tree replant a tree a tree will grow back likely however that does not answer the question underneath the national environmental policy act which is did the government adequately disclose the environmental impacts of cutting down that volume of would bring in you know in history an ability is not an issue with you know i think sustainability is kind of a buzz word that used a lot these days by syria club and other entities and the media it has meaning has a good purpose mandate any environmental outcome despite its grand name which is the national environmental policy act all it requires is disclosure of impacts analysis of those impacts and then taking public comment including comments from scientists often and then a decision is made by the government they can pick the environmentally worst decision and there's no claim underneath it allows only procedural claims for failure to adequately disclose the environmental impacts of the project here we're in the odd position where somewhat odd position at least in my experience of where the main issue before this court is standing for the plaintiffs to even raise these claims which we've we have set by case law is that the range of alternatives that address is addressed is inadequate the need case law and the need to statute itself explain that the alternatives analysis is the heart of the environmental analysis when congress and acting even one hundred seventy six they came up with this concept of requiring the government to address a wide range of alternatives to the proposed action then compa alternatives disclose that to the public and take meaningful comment here the only two alternatives are the proposed action and no action the no actual tentative is required in any penalises so there's no range of alternatives here came and solicited meskimen frontier for this particular grant did not look at a range of alternatives for reaching the goals the congress had set did not look at what you mean by that right there when you mean well range of alternatives in terms of another type of plan or yes your honor there's a couple of different issues congress mandated cellulosic ethanol but when they did so they explicitly said including switchgrass that's on the ground i mean there's various ways of making cellulosic ethanol not just cutting down live hardwood trees much less two thirds of the net annual growth after removals in the upper peninsula of michigan  congress didn't say look at what you're saying years later proposed the department of energy should have proposed the alternative of my having woodchips but some other  food store stock yes that's one of the alternatives even though they made up their minds they want to do it with wood chips and in your organization zero approves of that the creator of the chemicals that are used in this particular type of plant they're the ones that wanted to do this type of plant not the department of energy so number one isn't it possible that this program would not allow for a wood chip plant i mean i get the idea there are other ways to do this but i'm just really puzzled by the side of it as i hear you're saying that through this process they should have said what ship plants are out we're going to do switch back grass we're going to do that really option is your view no absolutely not i'm not saying that i'm not an option again i must in some kind of need is to address a range of reasonable options including a smaller plant a plant that isn't going to require so much air pollution so much trucks and trains in and out of the plant that won't require cutting down the plant issue diminish now that there's not this partnership with full aero and so i don't know that and ability on this page to page i d eight sixty five the court said the plaintiffs fail to explain how they're used to forests which are already used to generate hardwood pulpwood will be affected by the project's use of these those forests for the same purpose plaintiffs are unable to demonstrate because ation and then he went on to address redress ability the court said this is page eighty eight sixty seven the plaintiffs fail to demonstrate the existence of a genuine issue of material fact with regard to whether the project then second whether underneath which has it because it's procedural the redress ability test is whether federal now says could make a difference in the government's decision but what about the evidence that of put that on and then you're allowed to come back and say could not enough and let's get some more evidence and i just felt like you didn't do anything in response to that or we're playing the wrong test when we go down that road because the test is and this is in our brief at page twenty seven the plaintiffs who show inadequacy of the environmental analysis by the government need not show that further analysis would result in a different conclusion it's the faces that the government decision could be in government's decision not whether the plant goes forward whether the government funds from getting the point if hypothetically the evidence in this case it said we the manufactor we the people that want to put this plan together do not need this money we are going forward regardless of whether d o a deal he gives us money your view is there's still standing to challenge it no they did not say that they don't know but i've don't cha i'm asking you a club would still have standing answer and that's because of water how does that work government is still making a decision as to what to do with the government's the public's money and the public has the right to require nepa analysis for that that there is a case from oregon which i cited and i believe on page somewhere in the twenty's maybe twenty eight in the case involving standing goes to challenge in the use of this taxpayer money i take it that's the idea it's not taxpayer standing per se it's not general most of the case even if the proponent the applicant insists that they will go forward with or without federal funding most courts have said that's we still have standing however that's not the issue before this court because the only evidence in the record is that mass coma said we could go forward thank you anderson otherwise otherwise the danger is everybody says come to the government and give me a whole lot of money but if you don't then i'm going to do it on my own anyway and that would be standing your free time to react the conception that's the problem and there are there are a couple of courts that have gone that way in the the in the district at the district level i'm not good morning david gunter from the department of justice on behalf to eat with me a counsel table is janet masters from deal the office of general counsel and dan and injure who's representing frontier the key point that i'd like to make this morning is that this is not  government project frontier is participating in a deal we program a broader deal we program to encourage the development of alternative fuels and reduce greenhouse gas emissions but do you know his decision here doesn't authorize the cutting of any trees it doesn't authorize any construction it doesn't permit any emissions or fill any wetlands it is just right at the moment deal he has committed to provide a million dollars if friends here constructs the program the project as outlined in the thing and it could go up to one hundred million but he has not decided yet on that last twenty million has not committed that last twenty million yet so yes there's a lot of money at issue here but it's still a frontier project planners haven't shown that frontier would abandon the project without that money mannix i mean it's both the government and the it's a private enterprise government me ask you this in this particular area where the trees are going to be cut for the private and it's of sat large area but how many acres is eighty three it's i think it's eight point three million acres in the one hundred fifty miles around and ok i'm sorry not one hundred fifty square miles one hundred fifty mile radius right now are there going to be other groups that are going to be cutting trees within that same precise area or do you predict that well the only people that will be cutting trees in that area will be the private suppliers of timber and wood products in this area french here india we will not be cutting any trees but frontier india we will be buying feedstock from the suppliers who are cutting trees in that area and their credit they would be cutting trees not only for frontier but also for dozens of would consumers that's in the area have will increase the demand so presumably they'll be more trees cut it will increase the demand but the e p a and the analysis in the e p a shows that not necessarily will more trees be cut the there are a number of factors that go into how much wood is harvested including timber management practices in the area what the price of wood is how many other consumers are there so the timber supply outlook that frontier provided to dia we indicated that price the prices of wood goes in a cycle over several years and at the end of this particular study period two thousand and six to two thousand and eight prices were a bit down because of the departure of two major would consumers in the area deal we found that the frontier feedstock could be taken entirely from the wood that would no longer be used by those facilities but that doesn't necessarily mean that you respond to miss do point seem to be a maybe your principal argument on the merits which is the alternatives that you know you seem to be looking at this through the lens of whether t or not and case law in the regulations seems to require a more wide ranging and corey sure let me let me first put this in context actually judge merritt said the semantic difference between a government program or frontier project and i don't see it that way at all there is a broader deal we program for which congress appropriated seven hundred seventy eight million dollars to encourage the development of cellulosic ethanol that's what i would describe as the dealey program and for that deal we solicited dozens of proposals and review them and chose about ten frontiers was one of them but those ten proposals do cover a broader range of types of feedstock types of plant etc but the question of where do we for many of the ten were which ip based don't know that ok but at any rate the question that's before the court today and the decision that deal we had to make in this environmental analysis was whether to fund this particular project and it saw that as a yes or no question now that doesn't mean that deal we didn't consider any other alternatives in save our cumberland mountains the court said that an agency can't can't treat the question of alternatives as strict yes or no but it also upheld in that case oh a sense decision to have only two principal sustainability be assured through some mechanism if they're going to be a lot of people cut down trees and one of which will be the front of your project but you don't know how many other people are also happy new there for sure in the sustainability of the forest for the purposes of the cellulose would project a few different responses so that in first it's important note that frontier is not cutting any trees it can only control its own procurement process but delia required frontier to have a sustainable forest initiative procurement process we would if required one of the mitigation measures in the  they don't get the money so i'm struggling a little bit with with conceptual basis that that needs those conceptual basis of nato because the goal is for the government just to go out and collect the information i'm anderson and you know i think we all recognise the point that it's not to say yes or no you must take this kind of project or not that kind of project the  collect promotion and then to share that information with the public and so i guess i'm i'm looking at the forest resources sustainability and i want to make sure i've not missed something in the report because it seems to me there's there's a piece of meat promotion that's missing even though it's requested even though the environmental assessment talks about the need for it overall and six thirty four of your environmental assessment and it's under your category of forest resources and what i'm saying is that you went back to two thousand to two thousand and ten and you said let's look at plants that used to use wood that aren't anymore but as a very fair idea this is just substitute use of property and and to the end on table thirty five you gave us all of those all the middle closures in the can ross area and then the next page to the six thirty four you give us the new or play and would using facilities and you say at the end of your introduction in total these new and proposed facilities will require significant amounts of wood quantifying wood requirements for these facilities will be necessary to assess the sustainability of wood flows from michigan's forest and then you have a table thirty six with in two thousand and we're going to consider all the places that closed because now that substitute usage won't take any more trees and then you tell me i've got nine more projects a number of which i looked at in there built and underway and you said to us we've got to assess the sustainability of wood flows for these projects but i can't find for you tell me how that impacted the decision i don't think that the e a a actually known projects when you decide whether it remains a thousand of only a few thoughts on that one is that the last demand from plants that have closed is certain and the potential future plants are uncertain what other one is that the french here plant could use all of the wood that is no longer demanded by the closed plants and still have some left over for other projects and finally a more general point because i don't think that this issue is quantified in the record outlook both states that the demand for wood and wood products in this area is cyclical it goes down sometimes it goes up sometimes and the end of the study period two thousand and six two thousand and eight was a down period we can certainly expect that it will go up all of the participants in this industry including the state of michigan want additional market entrants now to satisfy the excess capacity that is available with the closure of these plants so i don't think that it's necessary to say that no matter who else opens all of the wood that frontier and all of the other users need will be satisfied out of existing removals i think instead it's important to look at the context of a cyclical market questions there could you come back and i got a few in your sign report and you've got the chippewa can only a are quality and when you go to your cable three nine you've got the ceilings on what can be what can make it non compliant anymore and with the frontier project here it thirty three point two you know the particulate matter so that this is your expertise not mine so but the ceiling is thirty five be in the same sort of question in my mind about these other projects that are already in existence and being not being calculated at and to is that the air quality impacts are one of the things that gives the individual points of mr klein injury sufficient to show standing it has nothing to do with the amount of impacts but the other point about that and the potential for entrance into the market that may reduce that margin between existing and the cap is the point of the e a a is that the air quality impacts will be not significant here because that entire process be managed by the state of michigan in its air permit and that air permit inc can't allow overall emissions in the area to exceed the national indian air quality standards or to exceed michigan's limits for toxic air contaminants will be up to the michigan department of air quality that may not be its proper name but to those regulators to ensure that air quality stays below the caps that michigan has set and if it does the it finds that there will be a significant impact i do want to get to standing but i also want to go to judge merit first and abilities you know that is to say that the go or one of the major goal how are you going to ensure that it occurred and should not the method by which you do that least being set out or described in some way in the environmental assessment or if not there then go forward with the environmental impact statement that would set that  out the method is to enforce the sustainable forestry initiative requirement on frontier as i said before frontier can't manage overall sustainability in the area it can only manage its own procurement process but deal he has attached a string to the that most of the suppliers will be most of the suppliers in the area already use methods for harvesting timber that comply with the sustainable forestry initiative so frontier would only buy from that short answer you lean on the state of michigan to enforce that but i thought the answer was that frontier was only allowed to buy from such suppliers that is the case and so certainly for purposes of frontier that's the answer i understand judge me to be asking more broadly how all of the suppliers in the area maintain a sustainable level of harvest and i think that's a broader and other one and you also have your contract we all yes you have the contractual provision with frontier and you can  you don't buy it unless it's the kind of oil that's right and i would also add that half of the land in the study area is owned by how they're going to know whether it's i mean nothing is set out that i can say in the environmental assessment about how this is going to be done except you're going to rely on the state of michigan to enforce a sustainability growth plan is that correct yes but there's also that's the only enforceable mechanism there's also analysis and analysis in the way to suggest that that will happen that our projections are that removals will continue to be sustainable and as mr goulden said there is room even if even if frontier project what all new harvest it would not to the amount of timber stock in michigan would still be increasing on now to make sure i understood your answer what i said before i thought i said i thought you said before that a way in which to answer judgments question is that the contract requires frontier only to buy from timber producers that are complying with the sustainability rules yes that's my that has nothing to do with just relying on the state of michigan because it's saying if the frontier is going to do this they can only buy from these types of producers yes that's my understanding and i would also add that half of the land in the study area is either state or federal land all of which would require additional environmental analysis and review  end to be a way to get that information together and then you use that term to make an appropriate environmental decision and the way d o a is him volved is after collecting answer to that yes that is the essence of the injury the injury is procedural right but what we're asking the court to focus on here is not the injury it's the redress ability if the court ordered to go back and make a different decision then we could decide not to give frontier this money at all but the question then is what happens plaintiffs haven't shown that frontier as a result would abandon the project it's entirely possible the project we've got built that is one part of the case that's strikes me as tricky and maybe unfortunate terms of the fact there could have been more discovery but the best evidence on this point for your side is that it says it could go forward without g o p money it doesn't say in the board of directors has said we're going forward this no matter what so how do we deal with that first setting would be a lot easier it seems to me for the argument you're now making but that's not the facts the facts are could that's true if it were the defendant's burden to establish facts supporting standing but the supreme court has made clear in lieu haan that is the plaintiff's burden and its summary judgment undersell a tax is the plainest burden to develop evidence to suggest that there is a genuine issue of material fact about this so when the d c circuit and the district of d c considered this question st john's united church of christ and sierra club versus dealey both of those courts said it's the plaintiff's burden and the plaintiffs haven't met their burden so regardless of what the injury may be there's no redress ability what we're asking the court to do here is simply adopt the same appears to me to be the law underneath is that there is redress ability if you collect the appropriate amount of information which is the job and provide that because the indio a is in the position of doing sustainable forestry that redress and in our view that should redress plaintiff harm the trouble is they disagree and they've asked the court to resolve the question and so the question is indeed whether the court can do something it's redress ability so if you can redress it then correct no i'm sorry just change i just disagree with you that it matters whether deal we can address it to me it matters whether the court can redress the court certainly could order dealy to go back and redo its need but analysis could even vacate delia's funding decision and deal we could reach an entirely different decision on the funding it could say no money for frontier but the question about whether the court can redress plaintiff's injury plaintiff's injury comes from frontier's construction of the project just like the injury in st john's came from the construction of the runway her theory comes from how the project in entered not that the project i know if that's your concern then i would recommend the supreme court's decision in summers which says that underneath it it's not enough to have a procedural injury in vacuo the plaintiffs can't sue just on the air and procedure they also have to connect that to some kind of concrete interests they have and in this case the concrete interest is in trying to prevent the plant from being built so the question for the clearer but didn't you say just that's not what she thought but the thing the point judge branch is making is you know if you look at the way it works now and this is why it really wasn't a yes or no option because it was yes contingent on these things and so some of these met mitigation met measures they may still be challenging yes that's true there is this point that some of these mitigation man measures are redressing some injury they may not be redress enough for them to say ok fine we're not going to litigate any more but i think that's the point she's making which i don't add complication i don't think so because again you're talking about whether dia we through its action is able to redress plaintiff's injury delia's trying to redress all injuries that are resulting from the environmental impacts by for example imposing mitigation conditions but once deal we has decided its entire slate of mitigation measures then it has to make the decision well i see your point your point that they're not filing this lawsuit to ensure that what's been redress stays or that's where filing this lawsuit to get rid of the whole thing so i get that i'm now that makes sense to me i get it that's right they don't agree the deal is action redress is their injury they still say even with the project as it's described in the n b a they're still injured we have question is do we need to have want to reach underneath but they're concrete injury the type that the supreme court described in summers of the type that if you have a standing affidavit it's like i go out and i enjoy the trees and i don't want them to be cut down that is a concrete injury independent of the procedural injury and the supreme court says even in a procedur case you have to have some kind of concrete injury like that error that's looking at frontier is planned it's not with deal he's done that's right there concrete injury comes from the construction of this plant and from the cutting down of trees to uses the feedstock and so apart from the  issue they have to be able to show that injury would be redressed if this court vacated delia's funding decision they have the burden to do that they didn't seek discovery they didn't introduce evidence they didn't create a genuine issue of material fact all right well thank you very much for your argument process we look at standing through a different lens not that i'm aware of and you know it was occurring to me as i was sitting there that i've actually never had to address that particular argument i think it's an interesting one and i suppose somebody could make an argument for a pretty strong view is it would be utterly is a bizarre that the a p a could dictate to a federal district court what the rules twenty six to thirty seven mean in the context of a debate about article three standing just to make any sense to me if it's true that you can get discovery about standing in a federal district court is that and that's because it's a problem i'm going to say to a well i've never seen i've done this for twenty years and i've never ever seen discover just giv don't you have to connect with dress ability to that injury and well the case for always played on page twenty seven and twenty three twenty nine of our brief makes clear that the the issue is not whether the project will not go forward but whether the government's analysis could end up with a different government decision i know it's a little odd to think of this as in the abstract but it's because it's me but and not the by better nepa and i would also like to point out that the department of justice admitted in their answer at paragraph three that this is a cooperative agreement between the federal government and mask oma frontier this is not this this is the government  range and said here's the projects were selecting here's where they meet the purpose and need the the act as written by congress in on page nine of our brief i laid out all of the ways in which the government is actually a partner in this they're not just writing a check they're showing up at meetings they're providing we have an independent engineering firm to review the project as it goes on they're doing site visits they're providing technical assistance they're doing risk he does flow from the failure to evaluate impacts summers did not change that the supreme court he said summers summers was about whether there was sufficient likelihood of injury to that particular party and here we have undisputed injury in fact to mr kline i'd also like to point out that the government the department of justice has not challenged that this project is federalized it's sufficiently federalized although  stated that there's two alternative tests for federalization then one is when a nonfederal project restricts or limits the statutorily prescribe decision makers choice of reasonable alternatives so here congress said go find some renewable energy