your ruling in this case and others for peace the planet contended that the nuclear regulatory commission had failed to assess the potential for and to address the potential for a terrorist attack and the potential impact of a terrorist attack and or see raised for defenses against the plaintiffs contention in that case this court rejected each of them its ruling rejecting those defenses the court held that the government's arguments that the impact or likelihood argued that it was difficult to quantify the likelihood of such an adverse impact in in the mother's for peace case again this court rejected the excuse on the grounds that neatly does not require a specific qualification of the likelihood of a specific impact that rather calls for the application of a rule of reason that where as here the government concedes that there is a possibility of such an attack that the government was then explain in its environment review the general parameters governing the likelihood of end of attack and the potential consequences of an attack on one i have not read the underlying document in that other case but only the case itself but my impression was eight of the environmental assessment there is a discussion of what would happen in the event of a catastrophe an accident an accidental release because of earthquake or other causes and i guess i wonder whether it matters what that cause is so long as the analysis occurs of what if there is a big problem of some sort and there is a release and then what and it seemed to me that there was appendix c page twelve that quote the potential results of terrorist attacks are not currently included in the defendant's analyses because terrorist events are not reasonably forseeable accident events in the sense that a probability of occurrence could be determined for a new analysis that excuse drawn or tracks pretty closely the excuse proffered by in our city in the mother's peace case so if i understand the part that i'm reading your saying wouldn't necessarily be the same analysis on the merits of it if they were to look at sabotage or something like that it might be might be actual different physical phenomena and they just haven't looked at it is that that's correct your honor and perhaps i could assist the court by giving an example of the of the very significant difference between the two analytical pathways where the government conducts an assessment of the likelihood and potential effect of a terrorist attack it would have to consider for example the use of a plane as in nine eleven or a truck as in the oklahoma city bombing those scenarios were not addressed at all in this case instead the department of energy employed a one size fits all maximum credible event scenario borrowed from another agency the m incredible event scenario was not intended to address the impact or likelihood of a terrorist attack or sabotage instead it assessed merely the impact of a laboratory technicians to screw tightly six centrifuge tubes releasing releasing into the confined laboratory environment but the killer here your honor is that the analysis employed by the government assumed that one hundred percent of the tiny minute quantity that was  have to pass through to heat the filters before escaping to the outside which of course would not be true with a plane last of the whole thing apart is your point exactly right and a number of scenarios can be readily brought to mind your honor that would result in a breach of containment without any need to speculate wildly for example the government's own documents in this case establish that an average of four percent or three point something percent of people filters examined at the lawrence livermore lab were faulty and were not withholding or containing pathogens that they were intended to contain after the one nine hundred eighty quake on the nearby green field fault fully eight percent of the heat the filters at the facility were not  the government failed to exam an alternate locations for this proposed facility and only mentioned the los alamos national laboratory in passing so there was a complete failure to consider alternative sites public was at least a half mile from the facility ignoring of course the fact that ten thousand workers are employed every day at lawrence livermore and would be in the direct pathway of any released third year on  does not address the likelihood of ground shaking at just the syllabi that would exceed the design nor does it consider the possibility that there would be surface displacement of the possibility it states incorrectly that there are no active fault in proximity to the silly but in fact the last proceed to fall is immediately adjacent to the facility and the greenville of mobile structures from the foundations of falling snelling tiles broken gas and water mains and so forth so that we don't have an honest evaluation well that goes to the graphs i'm still trying to hostile airplanes these considerations which seem pretty obvious you know post nine eleven world were never addressed by the agency so we have a fundamental failure on the part of the agency to address the  core of a need this command which is where the public's health and safety is that risk the government must come clean it must conduct and just passion and thorough analysis of the potential risk and tell the public what they are and moreover propose alternative means of addressing the risks so that public and engage in informed decision making process that would hopefully result in the best decision possible here to the contrary we have a relatively flimsy mobile structure to be transported to the center of the lawrence livermore lab to conduct experiments with highly deadly pathogens the pathogens are not disclosed specifically there is no consideration to a host of forseeable events that could cause a breach in security or a breach in the physical containment of those pathogens if i might continue on or the this court in the mother's for peace case also rejected the other two grounds advanced by the government to on the storage casts at the facility the court rejected the argument that nepa doesn't require a worst case scenario the court explained that the c q guidelines have been revised  specifically require that the government in gauge in a reasoned analysis based on credible scientific evidence assessing the potential for such an untoward event and to a pri public of that further your honor the court rejected the suggestion that because of the great security risks posed that the government was under no obligation to disclose to the public what those risks were this court held that there is no quote security risk close quote except geneva death appropriate response is for the agency to engage reserve from public view those specific aspects of a security analysis that obviously would hold a potential to expose the public to risk for example specific screening procedures where personnel were going in or out of the facility and so forth and we agree with that analysis your honor it's exactly the way the the course of a reasoned analysis rule of reason that would achieve the appropriate result here your honor if  i might reserve my last four minutes thank to be honest he's blatantly misrepresenting the record here the court that the department of energy specifically discusses many of the situations that he posits such as specifically an airplane crash deal we said look these are pathogens that can be quite harmful in certain context but exposed to the environment where they can be dispersed where they are their temperature impact and they are impacted by sunlight most of these substances become quite innocuous when you have something like an airplane crash or a fire or an explosion at a facility like this it would be less detrimental than the catastrophic release an aria that that they quantified because the heat effect and  it's not included i didn't have to have that with me to you actually he's misread what the record says and he's it's been somewhat selective what well there was comments that said you didn't look enough at terrorism and the agencies response was twofold and he's only discussed the first of those the first thing that the agency said was look we can't go into very specific terrorism sonars comparing this terrorism center to that terms terrorism scenario that's not the type of analysis that becomes inherently speculative so we can't go in quantified different specific terrorism scenarios but what we can do and this is the second response which mr volcker has ignored what we can do is look at a catastrophic release an aureole and the catastrophic release tomorrow that we l fifty one to fifty four of the day the discussion of the other scenarios that wouldn't result in such a release is more on if you look on page forty nine or fifty of it yeah that's where on page forty nine it specifically says addresses the fire explosion or airplane crashes scenario so this is not a case at all like mothers for peace mothers for peace was a situation where the agency said nice but doesn't involve terrorism that's not what the agency did here the court was very careful in the in the n r c case in the to the mothers for peace case to say what we are faulting agency for here is it's categorical decision not to look at the impact of terrorism if there's anything that you could that we can all we should all be able to agree about this morning it's that if you look at this record and the specific mention in response to comments about terrorism scenarios this is not a case where an agency categorically refused to look at the impact of terrorism this is really a of the record on page forty eight of the day do you we said we have designed this facility to withstand a freak air an earthquake that would not occur more than once in a thousand years  found someone that filed an extra dr record declaration that says actually i think that i'm not sure maybe a big earthquake could happen but that's just a battle of experts us not a failure of the agency to look at the earthquake issue that's just a disagreement between be the most troublesome thing here which is that this is being built in a very highly populated area you know i think california and mexico is much less be there and i don't see that addressed and i think that the way that the agency addressed that was at its stead we understand that there are the here is the population that's around the area we're going to take that into account in our catastrophic release analysis what the catastrophic arrhenius release analysis shows is that because of the disrupted dispersal of any relief from the facility is that no it is that by the time it reaches a place where any people members of the public would be if not add it's at such a low concentration that it's not going to impact anyone so it doesn't matter if it's one million five million or seven million people that are in the surrounding public that dispersal of such that it's not going to negatively impact them and now i think that that it's important to look at that the catastrophic release scenario that that that they looked at was a very very conservative analysis so it picked the most dangerous pathogen that they possibly could and most of the pathogens you have to really look at the record here and what the agency actually did because dr ali is simply not correctly representing the extent of the agency's analysis here to the extent the court is considering  valley's arguments i think that the first thing it should look at is the extent to which those arguments are relying on after record declarations dr ali has committed at least twenty nine different extra record declarations in its in this litigation and it relies almost entirely on those declarations to make its arguments now in our brief we directly posed the challenge of that tribe valley has never explained why it shouldn't have submitted this information to the agency as part of the administrative record would be appropriate basis for arbitrary and capricious review and dr ali has not responded that was that it was a forty five day comment period here and try valley's to mid comments but it wasn't until after the agency had made it make any attempt to limit its appellate arguments to those declarations that were actually led in by the district court i think it's important because that issue is important because record review really goes hand in hand with arbitrary and capricious review has this invitation to go outside the administrative record as i've said i've always criticisms here again and again it's not a matter of the agency not engaging not looking at the issue they looked at the earthquake issue they looked at the issue of airplane crashes into the facility they looked at the issue of explosions they looked at the issue of other possible releases or differences of opinion that try valley has with agent and differences of opinion in the supreme court's governing case law an ample precedent from this made an assumption dewey has assumed that an earthquake wouldn't wouldn't damage the facility and again i say the court just have to go back and look at what do you we actually did do we made a series of reason judgments that are substantiated in the record and it's reasoning as explained in the record it did not assume that an earthquake wouldn't damage the facility it designed the facility so that it was withstand an earthquake of the magnitude expected only once in a thousand years these were not assumptions made by the agency on any of these issues the agency went through an analyzed them privately disagrees with that analysis but it's not an absence of analysis it's just a disagreement among the parties that support has any further questions such analysis appears within and anywhere the page to which reference was made page forty nine is quite to the contrary it talks about accident scenarios normally reviewed india we analysis and then it says that those analyses aren't necessary here and won't be done here because it assumed that anything untoward accident or deliberate sabotage would not result in a release of pathogens to the outside world with respect to fire there was a blanket assumption bereft of any supporting analysis that any fire would be sufficiently severe to consume the pathogens it doesn't take a great imagination to realize that there are a number of scenarios where a fire could result in the release of pathogens it is admitted in this case that the heat the filters become unworkable when they become wet which would happen if if a fire triggered the sprinkler system in this facility they hit the folders could not work if a terrorist attack the facility the terrorist would not be assuring that a release of health agencies would pass through to heat the filters in succession to the contrary presumably the purpose would release of any pathogen would not pass through to heat the filters with respect to the question whether or not plaintiffs had to raise each and every one of information to the public to alert it to some of the grave hazards posed for example with respect to earthquakes the i said that there were no active faults in proximity would you point us to probably club versus u s forest service eight forty three f third i don't recall the page decision handed down by this court in about one nine hundred eighty eight and that asked would be required we believe there is sufficient evidence in this record already to compel this court to request that the agency prepare and yachts and i believe that the significant potential for a significant effect on the environment the test onder foundation for north american while she then and the i r s should be ordered if the other hand this court feels that a more adequately a which apparently was the remedy in mother's for peace i'm not sure because the court's ruling is not specific but in that case the court found that the e a a was inadequate i believe this for the same reason that this court found that a to be inadequate the court this