in the record of decision i will also argue that the e d s failed to discuss the inconsistency between the project the proposed action and the noise standards of vermont's landmark those damn lousy noisy planes in burlington i understand that but what happens in there what happens next roger would be that this would be remanded to the district court and we would be given a reason a period of time to file a motion for an injunction and then the remedy you'd be looking for another way i mean i sound like a big huge but i really want to have something that is exactly thank you for asking that is exactly the point i was going to focus on in my prepared arguments because what i was supposed to say was before i reached those two points i want to address the question of harmless error underneath so i think is what your question really gets in the way you need is and i'm relying on  bases must be touched and if i can use an analogy if the us doesn't touch first space or doesn't touch second base even though the rest of the us hits the ball out of the park the agency can't touch home plate that an order telling the agency it had to touch all the bases would lead to a different decision and this is what chief judge friendly wrote he said to permit an agency to ignore its duties underneath with impunity because we have serious doubts that its all time a decision will be affected by compliance with subvert the very purpose of the act and that's city of new york versus usa three thirty seven f sup one fifty one fifty nine thirty years later chief from our u s district judge sessions made this point in send bill versus peter's in two thousand and nine i'm sorry two thousand and four he wrote to require compliance with the strictures procedures is not a pedophile need essentially is a law of procedure that congress in the end of quote the congress intended that public disclosure followed by a non judicial democratic outcry by the public would prevent federal agencies from adopting environmentally harmful alternatives this is the retirement of sixteen's in vermont as opposed to the other two bases does it have an impact other than on cost of any kind of you know environmental impact to retire the aircraft rather than build new hangars and let them stay there with you have three  the record does not provide an answer to that question your honor because the entire concept of fleet wide retirement is not in the us so i can't i can't say in answer your question loosely or very anything other than the reduced cost of retiring those planes in other words is there an environmental impact from retiring of planes as opposed to letting them stay there with the f thirty five there well could be like now well the record doesn't address that so i'm i'm just speculating but if the entire fleet is retired that's noise for one thing yes if the entire fleet this gets to one of the issues we did not raise on appeal frankly you but i would be happy to answer your question this was under count five of the complaint we argued that the fleet wide retirement plan had been in the works all along and wasn't disclosed in the us and precisely the point you're making is the one we try to make one which was if there are no military aircraft at the from our air guard station if they're doing pro drones for example which many air guard bases are where they're doing cyber security there are many alternative roles for an air guard that would have drastic because the circus precedents tell us over and over as in callaway the reasons for choosing one alternative over the others must be disclosed and the c e q regulation fifteen zero two point two three says the last sentence in any event and environmental impact statement should at least indicate those considerations including factors not related to environmental quality which are likely to be relevant and important to the decision the government's if i may the governor's basic point is the point of the question your honor just asked it's not an environmental impact so on the metropole medicine why did have to be in there and i would answer that metropole medicine dealt with the proximate cause issue of attenuated environmental impacts and that case people are afraid that they would suffer psychological harm a three mile island opened and the court said that's what that doesn't meet the proximate c test this is not an impact we're not talking about environmental impact or any other kind of impact this is a factor relied on in the decision it is not an impact and calloway and siegler and chelsea they all say and starting with town of huntington versus marsh if this process is going to work the reasons the agency relied on in choosing one alternative as opposed to the environmentally preferable alternative has to be shared with the public so what's the environment like preferable alternative it could be either jacksonville or mcintyre in one example there would be zero environmental impacts in the other case there would be market reduction in noise what about on jacksonville and mcintyre if the plans are based in jacksonville or mcintyre they would be said there would be no negative noise impacts at all those a rural basis they already have noisy aircraft and the flight patterns of the f thirty five would either maintain the noise impacts the same way they are now or would actually improve upon the present situation so vermont burlington was the only of the three alternatives that would have negative impacts and they were a grievous so the basic point i would make your honor is that if there is any case we're going to insist on touching first base and second base before you reach home plate it should be a case like this one where the alternatives have zero harmful impacts and the chosen alternative really is that we just look at this in the say all these other factors should be considered but they must be a proximate cause of the decision right so in other words you're remember policy as they will cost if it's a proxy if it's part of the proximate cause should be evaluated how do you read metropolitan notice and the way i read it and he read it after i read the government's brief and it just it's it's apples and oranges frankly because we're not talking about an impact that will flow from the decision that's what impact analysis addresses whether it's an increase in taxes increase and a loss of jobs traffic congestion that ruins a neighborhood this is not in that category this is a factor the agency is relying on in choosing among the alternatives in much upon us and has nothing to do with that f a couple more minutes if you'd like and obviously will do sure well i would like to talk briefly about the fifteen zero six point two fifteen a six point two requires disclosure of inconsistency with state law or or local law and judge crawford wrote quote the notion of a conflict with local measures that are preempted takes us into the realm of theory and we humbly submit that judge leventhal was correct in that analysis is like saying and yes that says federal vehicles will go sixty miles an hour on a certain road without disclosing that the preempted state law speed limit is twenty five miles an hour doesn't satisfy the regulation judge leventhal zz analysis or the purpose of the statute so every final project in vermont house to have as a part of it that needs it the i a s has to have as a part of it actually looked at the local laws and they said this is how this is what the inconsistency is i think if i may it's all them i have and i'm going to tell you why it is just in a store called juan and i don't know how we address it but obviously we're wrestling with that is that the system just is so cumbersome that it becomes this brake on anything moving forward and you weren't around but i was and mr dumont and i go back many years when he was clerking for the judges that i was appearing in front of and we probably practiced opposite each other but anyway the whole route seven coming up though western side of the state which is had a huge the e had the fact that it had to have an e i asons had a huge negative economic impact on the western side of the state and you might not agree with us and council mr carter who the federal highway administration to delegate its need to responsible east at vermont agency of transportation he won the case but lost the war because the congress in response to changed they changed the statute  to say it is now legal to delegate to state agencies and here we have c q which by congress has been mandated to provide the procedures the procedures are on the books if they turn out as your honor says to be too cumbersome easy there's an obvious remedy so i would my conclusion if i may was that c q regulation fifteen hundred point one which has been quoted by the circuit many times says that public scrutiny is essential to implementing nepa that public scrutiny quote in fifteen hundred point one is taken for begum from the congressional record because that's what senator jackson said on the floor of the senate senator jackson said we were  relying on public scrutiny to keep the government from selecting the most environment environmentally harmful alternative that public outcry is part of what senator jackson told us the senate is why we're passing this law in this case the public scrutiny of the overall cost factor and of the inconsistency with state law was impossible because neither the overall cost factor nor the inconsistency were mentioned in the thank you thank you  of the secretary of the air force as to where to base some of the nation's f thirty five aircraft a nation's premier strike fighter aircraft and the extraordinary part of that is that they ask this court what is the status of the f thirty five is it in service and if so how long has it been in service so i can speak to burlington in particular this is not record information no i was just just actually on the generally so these are that this decision and there was one decided the same time  base active combat active combat command aircraft at hill air force base in utah they were the first to basing decisions for active operational aircraft the aircraft have been in use for testing and experimentation and that sort of thing but it is now  service that is the active operational it will be imminently if it's not already right here yes and so the extraordinary part of what the plan of ask is here is that they're invoking nepa which is a purely procedural environmental statute that requires agencies to take a hard look at environmental impacts but yet they ask this court not to invalidate the e i a s based on the failed consideration of environmental impacts but on the sector the air force is judgment based on non environmental considerations such as whether this base location will at a fit best fulfill the mission of the air force among other factors cost was also a factor in the secretary's decision but those those factors are within the purview of an agency to balance and to consider without being affected by anybody but mr beazley can speak for himself but as i understand the appellant's argument the the problem that they have with the argue the making is that that may be well and good but all the factors work set out so that the public can also an ally analyze them or at least be aware of them well you want to address the responses to that regulation that they're  fifteen point twenty three says it talks about cost benefit analysis and it says where such an analysis is prepared all these requirements apply they haven't point to anything that resembles a cost benefit analysis but assuming that they did it's this table on page forty four the appendix that they reproduced in their brief assuming that triggers the the regulation the last sentence merely says it says that the agency should at least indicate in the factors that are reasonably likely to be important to the decision now there are a few different words in that phrasing that provide the secretary a good bit of discretion at what to include in the us should it not shall it's recommended indicate under the rule of reason it's a level of treatment that is not this particular arised assessment that they're asking for the e s a that the burlington f sixteen s would be retired it said with respect to all bases they were considering resigning or retiring the aircraft three you know first full paragraph under the table second to the last line of that first full paragraph that says at sixteen an f fifteen fighter act aircraft would be either really reassigned or retired by the air force and replaced by f thirty five days before the two other bases they would be retired well that was later disclosed that was later determined so was it was a disclosed and i asked that it wouldn't be that the aircraft wouldn't be retired at these other bases y to know your question is and i was with was it clear of their words they were apples and apples or apples and oranges in the us about what's going to happen to the of sixteen's in the three bases well they didn't make clear that they would be retired only at burlington that was the ultimate decision but it was in compass in the range of alternatives that were being considered here and that's enough and and i'd like to make the distinction between the e i a s and the record of decision you know the the eos is what supposed to include the analysis of significant environmental impacts and it's supposed to focus on the impacts that are most significant so the most detailed treatment of effects in the past was of noise that was what everybody was complaining about spent pages and pages on noise on housing all sorts of things that planets are chiefly concerned about here but yet they don't challenge as a legal matter i asked did its job it took a hard look at those environmental consequences that were the most significant concerns raised by the public this issue  peripheral and it was mentioned in the past but it wasn't given the level of particularized treatment that the plaintiffs now in hindsight would like now the record of decision came a couple months later that's where the secretary actually made her decision about thirty five now it wasn't a decision about what to do with these f sixteen s it says you know they will likely be retired they will be retired ok that's based on the number of flight hours that are on the aircraft that they will likely approach the point where it's more sensible to retire them by the time the f thirty five star arriving at the base but that decision those decisions about what to do with those aircraft have not in fact been made and they will be made in the future and they will be subject to need at that time so there will be you know there is an additional opportunity for the secretary to consider whether there are environmental effects of reassigning aircraft versus retire retiring them certainly the plaintiffs haven't identified any environmental effects that they're complaining about here of environmental effects from scrapping the planes had a license facility established facility that does that sort of work but if they were to reassign the aircraft to some other location you can imagine there might be noise created that new location and so that would have to be taken into consideration if not in any i asked them through an environmental assessment or through some other way of complying with need but that decision in the future would be subject to need and i would like to go back for a minute to this notion of the environmentally preferable alternative the c q regulations do require that you identify that it did here as mcentire air force base but there is no requirement underneath the agency has to provide some substantial justification for not selecting that alternative the obligation under supreme court precedent is for the agency to take a hard look at the environmental consequences and once it does so the courts review underneath and then now this is not a suit where the plaintiffs are challenging the sufficiency of the evidence to support the secretary's consideration of cost as part of the decision they fully acknowledge that there is evidence in the administrative record supporting  the the lower costs of burlington they just contend that it's not in the right place in the administrative record that it had to be included in the environmental impact statement but as judge johnny suggested metropolitan edison the focus of the environmental review is upon environmental impacts not upon other other types of impact you said that was an approximate cause decision that was limited to environmental concerns decision i mean it relates to proximate cause well but you know the supreme court is only decided about seventeen cases in the in the entire history of the statute so you have to take it's just as decisions sort of in broad strokes here and understand what what they consider means and so for this you know this court takes up the plaintiff's argument that these economic impacts had to be given a particular arised treatment in the us would be something highly unusual underneath and i just ask you distinguish them as the a missions they found in the asses in all those cases were based on environmental considerations there's not not i'm thinking of the chelsea decision the n r d c against callaway decision  the town of huntington decision they all related to a failure to analyze environmental effects i think in chelsea and i to ninety one why the facts were noise and air pollution in energy c against callaway and town of huntington against marsh it related to placement of dredge material in long island sound and that the question was whether that material would disperse into the ocean and cause environmental effects not one of those cases says that a failure to include a detailed analysis of economic costs of the agency decision not you know not of economic cost to the community but economic cost to the agency and only indirectly to the public through the taxpayer use of taxpayer money that is nationwide  says well yeah so i have none of those cases stand for the proposition that those types of costs have to be considered i think what the early cases talk about is a way to review nepa claims by examining whether the agency balance the costs and benefits of the decision kind of generally but since that time i mean the supreme court has clarified that the way to review nepa claims is to determine whether the agency took a hard look at environmental minimizing the importance of environmental factors that should be scrutinized but lightly so that's not the argument they're making here they disavow that argument in their reply brief and they say there's no misleading data in the that they're pointing to that bias consideration of alternatives so i'm struggling to to really understand what their claim is at the end of the day given the the many concessions they make in their reply brief about what they're not arguing they're not arguing that the cost savings was an economic effect was an effect of the decision that had to be analyzed in the us and then they say well if it doesn't need to be analyzed and because the data wasn't available at the time but you have to prepare a supplemental yes that appears for the first time in the brief and it's forfeited but in any event the supplemental environmental impact statement has its own regulation and we didn't get to site this in our answer brief because it only came up in the reply but forty c f r fifty no two point nine  one provides the standard for supplements to the environmental impact statement and a supplement is only required where new information or changes to the action bear on environmental consequences it's not required for every piece of new information that comes up and that's essentially their argument here is that there was new information on costs that you were considering ended up as a factor in the record of decision and so you needed to prepare a supplement in addition to being forfeited that argument is wrong with with what and given what you told us about when costs have to be under the jurisprudence have to be consider what would be an example of how purely hypothetical here but how costs would have to be considered so the best examples i can think of in a hypothetical case would relate to an agency like the corps army corps of engineers that actually it's own subsidies regulations required to do a public interest analysis that includes a cost benefit determination so when it decides whether to grant a permit for allowing placement of dredge to feel like you probably saw in the callaway case they have to determine that the  benefits to that outweigh the costs and if for some reason they have inflated the benefits even noneconomic and non environmental ones that might bias their selection of the alternative as a substantive matter and so agencies under the fifth circuit i think a couple of the cases relate to the corps of engineers have focused on on an economic costs when they've been weighed in that manner by the agency but that's different than what we're talking about here right now i mean i'm trying to put it in the context of more specifically the bringing in the new jets to burlington it's hard to make up a claim for them that would require consideration of economic costs but you know if they were to focus on environmental costs of moving the planes to a new location that might be a different argument altogether and i'd finally on that i'll move on briefly in my remaining time to the  disclosure of state and local requirements but i just wanted to mention finally there are a number of non environmental rationales in the decision other than costs the most important of the on this district court recognized was a fulfillment of the air force mission and when the air force talks about consideration of overall costs you can look at the supplemental appendix on pages i think it's eighty two and eighty three they they talk about the costs of basing the aircraft to jacksonville or mcintyre to the missions at those air force bases and that those missions would have to be resourced to other parts of the air force and that incurs a cost and it impacts the mission of the air force as well so it's not just that the economic cost savings was the sole factor in the agency's decision there were a number of other ones none of which are attacked here so that's a local issue one right that's closer to canada with the joint missions with you that's correct when you're talking about that's correct so it's all over move briefly to the consistency with state and local requirements in the act two fifty eight the vermont supreme court has decided not just that the act is preempted but that doesn't apply to th action in a case involving some the very same plan of the court decided that the act and that the basing action here by the secretary was not development within the meaning of the act and so the act wasn't triggered there was one of the several claims that was at issue in that case did deal with the court addressed it through a preemption analysis but the court said well it started off by saying we'll basically accept as true plaintiffs allegations that increase in noise which is a material change in the permit so it wasn't jurisdiction they're not necessary for each other they are truly independent and one of the independent grounds is a material change the only reason the supreme court ruled against us change was that that field was completely preempted as to the citation and the explanation by fellow counsel of the i two ninety one decision i think you misunderstand the case the u s district court for the district of connecticut in the two ninety one white case found that the u s had been inadequate because one of the factors in that decision had been cost but no data had been produced in the a s to support the agency's ultimate conclusion the air as here that the project alternatives were too costly the court stated that detailed statement and the description of alternatives serves quote serious we write a short per curiam usually a for adopting the opinion of the district court that we want to be it has been actually the point it's making is the same point that the full court made in callaway which is the reasons for choosing one alternative or the other need to be in the e r yes now i quite agree that the record we have suggests that the government did not produce that to be able showing that twenty two million dollars here  the twenty million dollars there until november of two thousand and thirteen the house was done in september in september but the factor the overall cost factor was part of the decision so if we're going to say if we're going to use the first sentence of fifteen zero to twenty three saying if there's cost benefit analysis that's available in needed to be referenced that would apply in november when for looking at the apply to what i did if if the first sentence of fifteen zero to twenty three is going to apply to this case we know that the data did exist by november two months after the us and so we don't know it didn't exist earlier but the first it appears in mr record that we found was in november but the factory itself of getting rid of all of the f sixteen s in burlington and leaving burlington without a military plane so would be doing drones would be doing cyprus security and therefore there would be no noise whatsoever that appears in mr record years earlier and that's why that factor had to be part of the us and is as is your honor noted if you look at a fifty two if three it repeatedly says that the replacement retirement plan is in common it's a common scheme for all three alternative sites thank you thank you thank you both very helpful arguments we will reserve decision