of the district court's decision that the corps of engineers was not required by need to report and analyze the ips mitigation bank credits as part of the compensatory mitigation on their news article rich project now the traditional media injunction case is going to be something more along the lines of your club birdwatcher hunter or a property owner who has property interests or some interesting effect to buy a rail line pipeline or something like that that does damage to their property or or some other damage this is a little bit different is not your traditional neighborhood damage case but it still won a bit of a type that his record been recognized by this court and i know the district court sided the sabian river authority case as a means to rule against the ip but we actually think that that is a very good case  in this case and i'll tell you why in that case the plaintiffs were basically water conservation authorities and they had wanted to condemn the property to build a dam for a reservoir to deal with water conservation for the next forty years well the thing that got in their way was that a non development easement was granted to the department of the interior and they cannot condemn the property anymore so the district that case found that there's water conservation entities did not have standing either article three standing orders or of interest standing and this court reversed and found both found that it had article three standing and zone of interest ending and the similarities in that case the court that case has a lot of similarities to this one you know one it found that there was there was water conservation authorities had zone of interests or  we've heard from the defendants or the appellant these are the side words hey we're we're building a our own compensatory mitigation or what who's going to be against restoring the wetlands well in that case it was a non development easement and you could say that that's not harming the environment either but the court said no that is article three harm it is of interest harm to these plaintiffs because they don't they can't go forward with their environmental interests or do you believe that you have actually articulate it and environmental harm we believe we do have ever to cure later environmental harm judge and again that is part of article three standing of course you have to have some concrete didn't consider these mitigation bad credits and under for example morkel interests another fifth circuit case that the district court sided against us the court found that article in that case basis look you were lost your claim for lost property value and your claim for inability to develop your property although economic is still in article three injury in fact get into the the mitigation bank credit and in the in a bill in the failure to even consider that is an article three injury in fact but getting to your point of the environmental interest there is what's called the temporal gap or the temporal loss so the corps of engineers already did damage to the environment in this case did damage to brackish marsh impacts when it did its histories project  history project there is damage to the environment now that has not been offset until unless the mitigation efforts are complete the corps has chosen they could have chosen mitigation bank credits which would automatically those that environmental damage in this case they've chosen to do their own permitting a responsible mitigation recork constructed mitigation and until that is complete there is damage to the environment right now suffered by everyone within the l because of the failure to prepare and eat i ask creates a risk that environmental impacts will be overlooked and quote is itself a sufficient injury in fact to support standing so we have those various harms including environmental harm suffered by the ip in this case getting back to the similarities were saving in that case they they said would be someone who was working on the dam and somehow lost out on this building opportunity to build the day they said look the water conservation have authorities here authorities have the environmental interests here but this guy that's going to build the dam he's just there to build a dam he doesn't necessarily have environmental interest in our case e i page has the mitigation banker has the environmental interest it is part of the regulatory and statutory scheme permitted for environmental mitigation now if you have a dirt river out there who's doing part of the fill up some environmental home though you think environment in and correcting that but in order to have the statutory standing you've got to show some environment the his dress brackish impact images the core had a statutory and regulatory obligation to consider these mitigation bank credits as the preferred source of mitigation bank credits yet did not do mental harm so when you set the steamroller of the bureaucratic process him play you you have a hard time whining that there is the environmental harm that is what you're supposed that is what we are protecting against when you are supposed to report the environmental harm number one again as i said is the temporal gap there is damage created by his dress right now that is not offset until mitigation is completed number two there is environmental harm because there is now an increased risk of harm to the environment that was done when there was a failure to comply is harm because there is an increased risk of harm so you're telling me the risk of harm equals home is that what you think it's exactly what the course of so there's a risk of harm that under the positive for the environment it make it that's what it was in saving the maximum positive in the shortest period of time but it's a positive so how can it be a negative exactly what it was in saving your honor it was a a non development easement was granted and so you say how was that harmed we're setting aside land that no one can develop and can be preserved and in this case it's the same thing they're doing a project of thirteen million dollars that will not have again here's the whole reason why mitigation bank credits are preferred there it undergoes substantial monitoring by the corps the corps is the one who actually certifies whether credit should be issued twenty five percent of the credits are issued when the project is complete twenty five percent more don't get issued until a year out twenty five percent more don't get issued until three years out that you're still satisfying that everything in twenty five percent work five years out so again it doesn't require them to do what you want it they didn't consider it from the very start they knew that we had a mitigation bank in play we we bought this particular litigation back in two thousand and thirteen when this project was going on it get they certify credits in twenty fifteen so again part of what should have been done in the to come on line that is what they have to do underneath it and didn't do the particularly when the credits got certified in october excuse me april twenty fifty and they issue a nother report in october twenty fifty there still is zero mention of mitigation bank credits they have to analyze that underneath again the statute requires thirty three twenty three former thirty three u s c twenty three seventeen b thirty three u s c twenty two eighty your client harmed by the temporal delay and not by you taking your credits instead pursuing this other ups how is your client environmentally harmed not economically arms followed in this regard there is environmental harm that needs to be addressed it looks like everyone at a time on just that one issue so i'll reserve the rest of my five minutes for about oh thank you thank  firmed on any of three grounds supported by the record first and foremost he has not established an injury in fact necessary for article three standing i agree with a the supreme court has reiterated many times that a procedural right in vacuo is insufficient for article three you know and perhaps you know the foundational the best place to  start for article three is a little high on itself where the supreme court explained that a plaintiff asserting a procedural injury which is what he ip asserts does not have standing absent a showing that the quote procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing so neighbors procedures are not designed to protect these interest in selling its mitigation credits there must be an allegation of an increased risk of environmental harm that threatens the plaintiffs concrete interests and the concrete interest requirement has been interpreted in this contest context to require a sufficient geographical nexus between the plaintiff and the proposed project site such that they can be expected to suffer those consequences so he ip has patently failed to demonstrate article three standing it has not alleged or otherwise demonstrated any increased risk of environmental harm much less that it will suffer the consequences of such harm due to its geographical nexus to the site i think sabine river is readily distinguishable and actually quite instructive in that case as is my opposing counsel mentioned you had a water conservation you had an environmental group and you also had a water authority and in those cases they alleged and this cart began with the procedural injury implicit in the agency's failure to follow his prescribed procedures is that serious event or mental consequences will be overlooked and they allege that the action that they were challenging would have adverse environmental harm in the sense of  detrimental in backs to water quality and quantity and there was an economic impact and there can be for article three but ultimately the court concluded the injuries that these parties allege relate to the adverse environmental effects that they will experience as a result of the fish and wildlife services acquisition of the little sandy easement no such adverse effects are alleged here by by plaintiff and again you know a very basic but important point here is that standing must appear affirmatively from the record much of what counsel has said today they have put in briefs it is completely absent from their complaint  submit any declarations to support their standing so based on what is before the court and in the record the in article three injury in fact simply has not been established and i think you know again this case is readily distinguishable from the river where you did have an allegation of an increased risk of environmental harm that the plaintiffs connected to their interests due to their  proximity you know and another another way of thinking about the article three issue is that there is not a sufficiently a legally sufficient link between the assert the interests that plaintiffs are asserting which is an interest in selling their credits to the core  disqualify a plaintiff from being within the interests so long as they have an environmental interest and of course that was the case in sabine river the water conservation association and the water  environmental interests they also had economic lines the problem here is that ip has only an economic interest and again it does not matter what the ip says that oral argument or what they have written in their brief what matters is what in the in the record and there is no environmental interest there of any kind in this case these are normally not significant hurdles for playing this is that rare case this isn't meet the case in which there is actually no allegation at all that the agency's project will result in an increased risk of environmental harm that's fatal to the case it's absolutely  and so there are numerous cases in which plaintiffs with economic interests also had environmental interests and that is sufficient for me here however the only out the only interests that i and i think this was made clear in counsel's argument is that the corps overlooked its mitigation bank it wanted to sell its credits to the poor the corps did not buy them that is not an environmental interest it is not an interest that congress to protect and therefore if it's not within the zone of interest because you understand their argument is what they're saying wow but if you don't allow us to turn these things in actually use first of all i got that right if you know allow there then the then the major purpose of the whole statute is somehow under is that the point that i that may be their point that it's not entirely clear to me but i disagree with the premise and the point if it is you know we've explained in our brief that mitigation credits will often be the appropriate choice for permanent projects and the corps permits many many projects under section four zero for another set and other provisions and in those cases purchase of mitigation credits is often the appropriate choice because for multiple reasons which are spelled out in the regs but you know wanting to one reason is that it is often lacked the scientific expertise to plan mitigation projects the corps doesn't lack that the core how's that expertise of course so we disagree with that there's many you know and they still have their they still have their medication credits so you know another point here is even if you didn't have even if an environmental injury wasn't required which it is there's not even economic injury because the economic harm that they are complaining about is one hundred percent speculative nothing gives them the right it's not a legally protected right in any sense not to cognize simple interest they have no right to sell their credits to the core and they're just fundamentally wrong about that point  so it any way you look at this case there's a lack of standing there's a lack of interest and also a lack of a failure to meet of interest requirement you know i think there's no an allegation of a violation is does not establish harm that's one hundred percent clear i won't belabor that point you know i think i can if there are no further questions on the first two point i can briefly turn to the third which is even assuming they overcame the hurdles of article three standing in front of interest which they haven't there's no no violation of me but it's discernible from their complaint because by the allegations in their own complaint they did not have sufficient credits to meet the course need when the corps evaluated its options underneath and it's clear that agencies are not required to consider speculative alternatives and they were not required to supplement because the fact that you ip attained additional credits has no bearing on the impacts the environmental impacts of the action so again there's no allegation of any impact and it's fatal fatal on multiple levels if there are no further questions i think i've covered the points that we wanted to cover tha maybe be harmful that's not satisfactory the case will also they can use the guise of called quote environmental harm to really what they are disguising their real economic interest here they have to establish injury in fact they must establish environmental consequences or harm too weak to be expected but they have no with allegations of actual use they have no allegations of environmental harm to the mitigation bank shipments or they have no allegations environmental harm to news article rich in fact the work into that a courageous is to benefit the environment to mitigate and what's puzzling here is really puzzling they're seeking an injunction and joining the innocent that this court does not protect those type of economic interests no matter what they say about quote unquote harms the environment  not a reversal of the district court in this case you're basically saying that whenever the core blatantly violates in the by not reporting on compensatory mitigation alternatives instead sides just proceed with  and that the corps doing something that is hopefully environmentally beneficial that there is no recourse by anyone to that and that's not the way the a p a and environmental harm that article three harm harm let me just address the you know we spent a lot of time on the first issue like to spend time some time on the second issue which they dress as well and the need to statute thirty three u s c forty three thirty two says you have to report all to alternatives they didn't report any alternatives in this case in any of the reports it has or allegation forty c f r fifteen point zero two nine says that you need a supplemental e i a s whenever there are significant new circumstances or information relevant to the environment concerns and bearing on the proposed action it's exactly what we had here you suddenly have sufficient number of mitigation band credits that could totally obviate the need for this entire permit any responsible litigation project and there's zero reporting on it a met there has to be a remedy in this case we do have article three harm the course of said that is not a hard hurdle to meet we do have that zone of interest home the court the courts have said that is not a high hurdle to meet we've met that in this case  judge king i found one of the decision that you were part of it was called sierra club versus federal highway administration for twenty eleven for thirty five federal pen dix three thirty six and again it goes to the fact that  listing of the mitigation measures is insufficient to qualify as the reasoned discussion that is required by nikko there is no question that there was a need for violation in this case and  right that is the environmental harm  who had sufficient credits to cover this project the credits were not considered by the court the corps instead did not report on those mitigation measures that is sufficient allegations to show that there is environmental interest because again a mitigation banker is defined in the regs it has an environmental interest it's part of the regulatory scheme in benefiting the environment that there was need for damage involved that the cause of action mitigation banks work they knew there was a medication bank in existence that had three credits that was in the process of being certified for more and at the very least they need again you can't just wave it off and not report it at all which is what they did they should've said there's a bank it's got three credits it's working we're about we you know they ultimately did certify on of credits within the year after that you know ten months away from there the core is the one who certif crystal they know what's going on they can't say i don't i don't know about this potential alternative so they at least had a report on that and they may say at the end of it well but we don't have three now we don't have to buy it but they did violate nepa by not reporting on the situation of the litigation bank at that point they definitely violated nepa in not reporting when critics came online certified by the corps themselves in april twenty fifth he did not report about it in october twenty