base number fifteen two four five seven sierra club versus united states forced service and in bridge energy limited partnership arguments not to exceed fifteen minutes for the plaintiff and fifteen know this is a federally approved project it's a permit for a major oil pipeline that goes across federal the public's forest service land in michigan as well as other areas of the  country it was first approved and installed sixty three years ago forty six years ago the national environmental policy act was signed into law by president nixon after congress enacted it in part in response to the santa barbara oil spills so this is the types of impacts we're concerned about are the very reason that congress even started thinking about the national environmental policy act despite the lack of disclosure by the federal government as to the  potential impacts of this pipeline being on public land the plaintiffs have researched this and enbridge has given some disclosure in the public in the public eye we know the flow has increased  we don't know the exact amount but we do know that it low is regulated by a different agency than the forest service right that's correct your honor so we're not arguing that the flow itself is what has been approved but what has been approved is the ongoing  use of a pipeline across forest service land and the impacts of the scope and intensity of that use have increased dramatically and if you could i'm sure you're going to get to this but could you just talk  issued a series of categorical exclusions from nepa which are to be narrowly interpreted because they are an exception to the broad purpose of disclosure to the public and the c's categor use permit public land where the only changes are administrative there's no changes to the facilities or increase in scope or intensity here and so we could see  that building contained just office furniture and then they started putting in toxic materials for example obviously there's a change in the scope and intensity of the use as it with regards to the potential environmental impact here we know there's always been oil going through the pipeline so that's that's not the material that's different but the volume is is massive at this point it is giving us other agency that regulates that what's unfair about saying scope and use with pipelines only going to be affected when there's enough volume that you've got to increase the size of the pipe in other words if you're not changing the structure of the pipe why would people cover to supposed to  other agency well first of all the other agency is not looking at impacts on this forest service land at any point there is no need to analyse this by any agency no national environmental policy act analysis of the impacts of this project running through the public's forest service land at this site but that in part because of essentially what's a grandfather provision that this pipeline was built before new but was an to apply to this kind of situation congress would have put that in the statute wouldn't the congress i did not address grandfathering at least at this at this type of grandfathering when it wrote me but what said what so then there's the know as we're looking at it that it has increased you know dramatically over time should not be relevant to your analysis what's relevant is the change in the potential environmental impacts  enbridge who now owns the pipeline has had over five hundred oil spills i'm sorry eight hundred oil spills between one nine hundred ninety nine and twenty ten that's all within a ten year period this involving this pipeline no but neighbor requires looking at the reasonable reasonably forseeable impacts and the fact that there hasn't been a spill yet thank goodness on this particular piece of the public's land should not allow the company in the government to escape from disclosing the potential impacts the government has acknowledged that the new permit does not address the increased flow in any  way they have estimated that the only acknowledge that though but they've said it isn't their business that it's the business of the department of transportation and this acronym of something having to do with hazardous materials that's not exactly correct they have said that they have said that that agency is looking at the impacts but what they have said is because of this categorical exclusion they won't they don't have to look at the impact it's very common for two agencies to look at impacts from a project it happens all the time if this were a new pipeline through forest service land the special use permit would require a review of the impact even though other agencies are reviewing the impacts  that there has been burst that i don't know the answer this question but does need apply to this other agency well that information is not in the record we have not been shown any sort of environmental analysis request the issue is whether nepa applies to that request and you handle it that way if it does apply add at other levels but there is not any site specific evaluation of the impacts on this piece of forest service land  the the the network of pipelines is enormous it goes all through canada and over the great lakes under the great lakes throughout many states and so i guess i'm just wondering whether you're barking up the right tree wh and working with that agency i mean the bigger the network the more it seems to me you ought to be very careful about complying with people like my clients are working at every level to to scrutinize what's going to argue what you are doing that not me but my client yes yes absolutely but it's similar if your honor to it a situation where the forest service writes their ten year forest plan for an enormous forest the superior national forest for example and they say over the next ten years we expect to log x number of acres and you know we're going to take care of these areas for species and so on they still have to and they do need for that then when they do a specific timber sale they have to also do need for that site here the pipeline because it was built before nepa that site specific analysis was never done and that would be legal under the categor we've been talking about the potential environmental impact but my understanding from the record is that the focus of the environmental impact was on a specific bird the curtains warbler is there any other environmental impact that you want to point us to that we should be aware of the current ones who are burying more bull or if she was the specific issue because it is an endangered species and so that's a special category within the but however there obviously other impacts when there's oil that spills into the public's land and water the fact that there was no need for means we don't we haven't had an analysis of what these impacts are but certainly most americans know that that when oil goes into the water there's they're going to be impacts i see that i'm out of time thank you thank you court my name's les mcfadden i represent the united states department of agriculture for service with me a council table is mr david coburn on behalf of enbridge energy limited partnership l l c and he'll be using five minutes of our combined argument time the categorical exclusion that the force of resupplied which is founded thirty six c f r two twenty point six if teen applies unless there is a change to the scope or intensity of authorized activities and that really is the phrase that governs whether this categorical exclusion applied to this decision it did because the force or is didn't change what ambridge is authorised by the forest service to do on its right of way or where it's authorized to do it or you claim that th would be a change and in the right i think that the dispute here is is just it's a change in the scope or intensity of perhaps i don't use or amount of oil it's a physical change it's not a change in the authorized activities which is the language of the categorical exclusion itself for services this court recognized doesn't regulate the flow or a quantity of oil inside the pipeline which the sierra club conceded here today that's rist risks go up  more oil is going through the pipeline the pressure goes up and if there's a leak the consequences of the leak go up so i'm just interested in making sure that someone gets regulated and if you don't get regulate on this fine but can you admit on behalf of the government me walk through that to be sure i'm very clear about my answer to that yes if any time the pressure or flow in the pipe increases they have to go to this subject see the department transportation for approval and prior to getting that approval they have to test the pipeline to conduct pressure test which is explained in regulations which they had done just months before asking the forest service to renew the authorization for this pipeline when they go to pimm's and they have to get a new analysis or is there some all that is subject to very specific regulatory requirements as it applies but the question of how much new analysis has to be done is one that i can't answer definitively depends just as with every other agency action and whether it's likely to significantly affect the hum n can you answer it this way that this circuit could do the exact same thing they're doing with what you did and they just come in it's the same rules and they ask for whatever they can get in if the agencies allowed to say well we don't need it because we've already checked but the point is the same process would apply to that decision as it applied to your decision they're welcome to bring an a p a suit against him for any approval that hymns the issues to him bridge for the increasing pressure flow and if oil and it pipeline or the way that it approves emerges compliance with ongoing regulations that has any will and more well that's it it has a number of requirements it has to meet at repeated intervals to inspect the integrity pipeline to demonstrate through testing that it's still safe and i also want to point out the administrative record here does reflect that the forest service did go to films because they were getting comments from the sierra club and from other concerned energies about whether th pipeline was still safe has been on the ground for a while for service asked the department transportation agency whether there was any concern in the answer was no that had been never an indication of a violation along this pipeline films a did say that they don't issue you're doing a good job letters so there's nothing in the minister of record to suggest that you know there's no documentation that they're doing a good job what you have is an absence of documentation they're not they're not doing well there wasn't a enforcement action no concern from the agency who writes the regulations between four service employees and employees of i don't have the record cites here but they are in our brief that discuss this very thing and they were provided to the commenters including the sierra club because that we asked because they had asked it of us and the force of us quite correctly said that's outside the scope of our regulatory authority and our expertise but the letter sent back to the commenter said if you have further concerns about this particular issue here's the contact information for films and that is the agency to whom you should are remote there are sort of remote control shutoff valves at either end of the stretch of the pipeline that's on the forest service land so that if there ever is indication of an incident and bridge can shut it off remotely which they can do much more quickly than having to actually drive out there those were amendments to one of the permits that was issued by the fourth that's right and the last time the permit was issued was what year the permit itself was issued in one nine hundred ninety two then there was an administrative change reflect the name change in two thousand good morning ron is david coburn for and bridge energy limited partnership of the sierra club in this case is endeavoring to state a case that's simply not supported by the facts of the laws i think your questions illustrate it's goal appears to be to expand the boundaries of intensive  type environmental review to a setting where it simply would serve no purpose but isn't it troubling that there never was the type analysis because it was inactive after the pipeline was built i don't think it should be troubling to this court your honor there are hundreds if not thousands i'm sure it's in fact it's thousands of miles of pipelines in this country there are highways in this country there are bridges and tunnels that were constructed before need to was and acted and they've never undergone nepa review because the law simply doesn't require it if there's a significant change if we were rerouting the pipeline if we were installing a pipeline with a larger diameter then in this case the forest service would probably have to have extensive regulations that are designed to prevent spills inhibit spills and bridge follows those regulations it is subject to those intense regulations it put in the the emergency remote controlled well just around the river in the in this forest in order to make sure that if there were a spill that would not affect the river it takes dozens of other actions routinely to make sure the pipelines do agency's action so here the forest service was simply renewing a permit for a pipeline that was in the ground for thirty years it no this agency knows from experience and therefore it adopted this categorical exclusion that renewal pipeline company increases the volume of flow changing the volume of flow is something that happens with respect to many pipelines all the time sometimes the volume is reduced sometimes the volume is encrypted longs from my perspective a little more precise i don't much care whether they do any i a s sometimes never always what i care about is whether need applies to those decisions and it does apply there it's just a question of how it applies and what they do is right i write about nepa applies to everybody applies to decisions other than certain categories of decisions that are administrative in nature in this case it is fems as viewpoint and this is being challenged by the way in a case recently filed in michigan and in the federal district court in michigan but need to takes the position that when it approves an emergency response plan that action does not require it to undertake any kind of extensive whether it does any kind of any preview i'm not sure that's fems that's fems but thing is being with a gated another case that's being litigated another case there are some decisions out there  nbridge is not the entity that got the initial permit it was a different it was known by a different name but it's the same company it is simply a name change as opposed to any other is just a change in name in fact this group of pipelines that traverses their michigan is still known as the lake hit pipelines but they are operated by a company now named to bridge energy limited partnership which is my client along to these pipelines l the cost of maintaining the pipeline through digging out sections that need replacement exceeds the cost of that digging them the entire pipeline is replaced that does happen but i can't give you a finite period within which we know that this pipeline will require replacement segments of it have been replaced with this pipeline underground through the whole forest point it is underground its entire length from  northern michigan through over to canada i'd like to point the court to page twenty seven of our opening brief which does have a citation to the record case idea levon twenty seven to twenty eight where the forest service conveyed responses from the department of transportation to the public's concerns the question one question was if the cracks and there's an automatic shut off a considerable amount of oil will spill how much spill is likely the answer was this will depend on how much oil is in the pipe at the time and how big the hole slash crack is period that's the end of that that answer another answer to another question was the comment from d o t was there is no set number of years for replacement it depends on the materials used in construction of the pipe it could last five years it could last much longer they don't know when or if they need to replace it it could be many years this is the type of analysis that is being done we don't know it will be at some point  nothing else there are going to be impacts from construction when they replace the segments none of that has been and analyzed and suppose they were going to be replaced the pike would that be something that would be covered by the categorical exclusion or would that be something that could trigger an e t a or in the us as i understand it from the record there is no trigger for any further analysis the permit allows an bridge to not only have its pipe on the public's land but to maintain it so to replace segments of it to put in shutoff valves and so on and none of that is analyzed at any point except at the time the permit is issued ok but but the particular environmental impact that your group has alleged is this impact on the curtains warbler in my understanding is that there was a particular arrangement that was made which was that there wouldn't be any digging or fooling around with the pipeline during the special season when the curtains warbler was in this for us so so hasn't there been the kind of  protection you need the curtains are warbler is only one of the impacts that i have my clients have expressed concern about the concern has been primarily about the potential for spills since there have actually been eight hundred four spills in ten years in a ten year period on end bridges lines alone and the spill would impact fish and would impact the the soils and the you know what's underground and on our land trees there's all kinds of impacts that happen from spills judge that you were concerned about about whether at some point this is regulated and it's important to to to i wanted to make the distinction that need but it's not about regulation disclosure to the public and the decision maker about the site specific impacts and again it's very analogous to it to a timber sale within a larger forest plan the averages attorney said there could be we were asking for intensive i asked type review but i wanted to also know that there is a second step between an intermediary step between a categorical exclusion and a full environmental impact statement which is an environmental analysis and that is done to an environmental assessment excuse me to determine whether there may be significant impacts and not even that brief analysis has been done here only a categor exclusion also there is an exception even where a categorical exclusion clearly applies and we don't concede it applies here even applies here because there's a change in scope and intensity even if it did apply the government is not allowed to use a categorical exclusion if there may be extraordinary impacts are extraordinary circumstances and we submit your honour's that the fact that enbridge is running this pipeline and has under its watch had the largest inland oil spill in history over a million gallons spilled into the kalamazoo river that we're now learning that there are extraordinary circumstances when there is a pipeline running underground this pipeline also goes through the makah neck channel which is separates the upper and lower peninsula of michigan and over under the great lakes so there are just not in front of us because this is only involv the forest service and the segments correct your honor and so and at this site that we're talking about there is the river which is a very well known fly fishing spot so there every area where this pipeline goes through needs to be an els analyzed as to the impacts now where it goes to private land there's no requirement of nepa analysis but where they're getting a permit to go on the public's federal land