Legal Case Summary

Case number 14-5205. Sierra Club, appellant versus United States Army Corps of Engineers at L. Mr. Hayes for the appellant, Mr. Gray for the Appalise. Good morning, and may I please the court. My name is Douglas Hayes. On behalf of Sierra Club and the Appaliance and this matter, I'd like to reserve two minutes of my time for a battle. As you know, this case involves the Ambridge, Flanagan South, Crude Oil Pipeline, which was constructed between four states, following the approval of various federal agencies. Now, the actions in this case include 33 easements across federal properties, four decisions by the Army Corps of Engineers to approve water crossings, to almost 2,000 water crossings across four states, and decision by the Fish and Wildlife Service to allow the take of two endangered species in the species habitat, which was implemented by the Florida. The preliminary question, because Imbridge says this whole thing is moot. The pipeline is finished, it's already operational, so why isn't it moved? Thank you. First of all, it's important to note that the government does not also make that argument. The test in this circuit and other circuits is whether, even if Anita project is complete, whether the agencies retain the authority to impose additional mitigation measures and at least provide, partial relief, and that's true in this case, the government hasn't disputed that it has that authority to impose additional mitigation measures in. What kind of mitigation measures might it impose under what authority? Under the authority, under the Clean Water Act, under the easement granting statues. So because the verifications are conditioned on continuing, serving of the public interest in all the various conditions therein, or are you talking about the separate permitting of the BIA lands and that. That's correct

. The Corps Statue, or excuse me, the Clean Water Act Statue and regulations allow the Corps to impose mitigation measures throughout the life of the project. And just to give you an example of the type of mitigation measures we're talking about, the environmental protection agency in this case is worried about oil spills. They're worried not just the catastrophic oil spills like we saw in the average pipeline in Michigan, but the EPA was referring to up to 2% of a pipeline's volume could go undetected by the spill response system. And that's with the pipeline of this size. That's up to 500,000 gallons a day that could go undetected. So EPA suggested several additional mitigation measures, including monitoring wells, insensitive areas, different shutoff valves, spill response equipment. All of these were mitigation measures that EPA was urging the Corps to take, but were never considered in the NEP analysis. Those were not considered in the national permit because no probably raised them, is that right? So to what extent is that preserved? That's true. The oil spills were never considered in the national nationwide permit itself. And in fact, that document was limited to just looking at half acre fills of wetlands for these waterways. And in fact, that document said in our appendix at page 316 that document even says, NEPA requires more than this. You can't just look at the impacts of fill to waterways. And it says all additional impacts would be analyzed for certain projects at the project level. So even nationwide permit 12 itself anticipated additional impacts to be analyzed at the project level. That was never done here. Now, meaning the verification? The verifications

. And in this case, we're looking at the verifications, the Fish and Wildlife Service Action, but also the easements that there were 33 easements that were analyzed in three separate areas. Now, those, the connected action regulations in this case underneath any. I think it's a connected action just for a moment. Was the risk of oil spills considered in those environmental assessments? It was, but it was limited to those actual easements. That's correct. And the measures required or not? No. Not the mitigation measures, is the EPA was asking for exactly. So in, for example, EPA was specifically concerned, even with those areas was considered, was, excuse me, was concerned about sensitive areas like the upper Mississippi River watershed. Those mitigation measures to protect those areas were not implemented in this case. So, but it's important to, to the government and the average go to great lengths to talk about how oil pipelines as a whole are not major federal actions per se. But in this case, we, the, there's no question that there has been major federal action in the NEPA regulations apply. The easements were major federal action, the district court acknowledged that. Therefore, the connected action regulations apply and, and there the government and, and average, neither, neither party disputes that none of these various federal actions would have independent utility. So based on the Delaware River Keeper case in this court, and decades of segmentation connected action case law in this circuit, at least those federal actions had to be analyzed in the same way. It seems like Mr. River Keeper is a case that involves FERP and FERP has authority over the whole of the pipeline project, and that seems to me different than a case where the action agencies have a very minimal role to play here

. Something like between two and four percent of this whole pipeline and the rest of it's on private land, which is in that two percent, two to four percent is not in one. The only one discrete area it separated across the entire pipeline. But I think to answer your question, it's important to break that into two parts. Delaware River Keeper holds that various federal actions taking to approve a single project need to have independent utility if 30 be looked at separately. So, for at least the federal actions in this case, the easements, the other areas within federal jurisdiction, those are connected. What I think you're asking. I'm sorry, I didn't want to go ahead. I think the second part is whether the non-federal or areas outside of the federal jurisdiction should be included in that analysis. And the answer to that is yes, as well, but just as an initial matter, at least the federal actions that were analyzed here, the areas within federal jurisdiction, the connected action regulations in Delaware River Keeper and Hammond, being in order to all require that these federal actions be analyzed together. There's some appeal to that, but I'm not sure that I see that as something that you were pressing in the district court. You know, you sort of have these concentric claims. One is at least group all the neat evaluations that were going on with respect to the federally controlled or permitted or supervised lands together in one package. And then you have the broader claim about covering the private scope, and I guess we'll get onto that with the biological opinion. But the smaller claim is, is that something you pressed in the district court? It is. It was in our complaint. We alleged that each of these federal actions individually triggered NEPA, but also that the, that all of the federal actions and the non-federal parts of the pipeline should have been analyzed together

. And I think, right. And the non-federal, but the sort of lesser included claim that just if we only can see that we're going to look at the federal parts, those should be done together. That's a claim that I feel, I perceive as someone new. So, I think the district court's opinion sort of mischaracterizes what are claimed and does just talk about whether the whole federal pipeline, the excuse me, whether the whole pipeline is a measure of better action, whether the whole analysis, whether the whole pipeline should have been considered together. But are our complaint alleges that each of these, each of these actions, federal actions should have been analyzed together? Isn't your approach to this nullify all the benefits of the general permit authority? I mean, because my understanding of that is that NEPA is considered when that's done in the first instance, and it sounds like you're saying, then you have to go back and do it all again. No, Your Honor, I don't think it does not nullify the benefits. I mean, the nationwide permit 12 was intended, was never intended for projects of this magnitude. Now, when you have 2,000 water crossings being lumped together and you have the core implementing and the Endangered Species Act take, and then you have connected to that 33 easements, at least in this situation, and all these federal actions should have been analyzed together. This is not a situation where you simply were asking for a handful of water crossings to be looked at together. Let me ask you with respect to the, really, I guess the incidental take statement, but all of them, I mean, there's something a little perverse about saying, well, the incidental take statement is with respect to the entire pipeline, public and private, and we know that the Ninth Circuit has viewed its own take statements as triggering NEPA review. So there's some authority out there. But then when you think about this on the ground, what is the review that that action should trigger? So the action is, let's protect species along the pipeline. If that's a federal action triggering environmental review, what about that conduct that is, you know, safe harbored by the ITS needs to be analyzed for environmental impact? It itself is an environmental protection measure. The, the, the, fish and wildlife service consultation and the incidental take statement is, is looking at whether or not this will jeopardize the, the existence of a species. That's an entirely different question as to what, what the impacts are on these species and whether in light of that, whether or not the project should go forward. So, of course, the, the fish and wildlife service has discretion that would be informed by NEPA to impose certain reasonable, improved measures to minimize those impacts

. But then the core, they're also- That's done so. That's correct, but those were not part of any NEPA process. But then it's the, it's up to the core in this case to decide in light of that, whether to go forward with the project. And even within, even when the core is verifying projects under Nationwide Permit 12, the district engineers are required to look at the entire project and decide whether they'll have more than a minimal impact on the environment. In this case, that included the impacts in dangerous species. So, it's not the monitoring that's been put in place, pursuant to the ITS, that your worry is going to cause environmental impact. It's, it's that, or is it? Well, that's a, that's one thing that would be informed by a NEPA now. Since the monitoring, of course, is not monitoring just, just for the sake of monitoring, it's because there are ongoing environmental impacts from the operation of the pipeline from the, the permanent maintenance of a, of a right of a way through everything in its path. For 600 miles, none of these, none of these impacts were ever analyzed by, by any agency. What do they do to monitor? They track trucks along, they do helicopters, they motorbike up and down. I believe there are over, and some of the, the core areas talk about monitoring from the air. There's also on the ground monitoring. There's monitoring for, you know, re-vegetation of parts of the right of way and so forth. So there's, I mean, they're not checking on beetles from the helicopters, are they? I, I don't believe so, on the ground. So they're actually going on, say, presumably? Presumably, yes, yes. Along the entire route of the pipeline, not just in the, in the jurisdictional areas

. And it looks like my time's up in this. I could, I'm trying to understand your argument, or the best authority you have for your argument that, under the connected action analysis, you look at the non-federal actions as well. The, the, CEQ, the NEPA regulations at 40 CFR, 508.25, talk about not only connected actions, but cumulative actions. 1508, 40 CFR, 508.7, specifically states that that includes the cumulative effects of federal and non-federal actions. There are the core's own NEPA scoping regulations talk about when their control on responsibility has to be extended to upwind areas. The public citizen case, sites the, the 1508.7 regulation talking about. So all of these, and of course the Delaware Riverkeeper case in this circuit talked about, use that, that regulation to, to say, all of the cumulative, even if the connected action regulation didn't apply, these are all cumulative actions that should have been analyzed together. So, so those are all, again, that's sort of the second question. First is these, the federal actions should have been analyzed together, but then the, clearly, this is all part of one interdependent project. And all of these NEPA regulations together are intended to prevent an agency from breaking it up into thousands of pieces and to look at the entire project. Can you address Ramsey and Sennelies and explain how you think the logic of those cases most governs your case? This is the Sennelies case. Sure. So this, the question is to whether or not, first of all, the question is to whether or not the Fish and Wildlife Service action itself, standing alone with of Trigger NEPA is, is, you know, in this case we, again, we know that there is NEPA that was triggered and by the easements, and that should bring in the federal

. Well, with respect to a very limited geographic parts of the pipeline, the only action that is with respect to the entire pipeline, public and private, is the incidental take statement that I'm aware of. The biological opinion that gets the whole thing public, private, that's partly why I'm interested in that and whether that is a federal action, triggered a federal action itself brings on NEPA review. So Ramsey said that if the under the, the very broad definition of major federal action, it includes any sort of fate. So, I think that's a very important subject to go forward. Now, Ramsey said in this case it's functionally equivalent to a permit, but the reasoning was because the project would essentially be prohibited if not for that action. Because there it was taking the fish. Was that the fish case? Yes, it was the fish case. It was a state run fish program that would have taken other, taken species. We're here that's not really true. I mean, if, if Amber did want to go ahead and the agencies wanted to go ahead at their parallel, they could have. There's no sort of actual prohibition. Not at opinion, we, you know, to safe harbor, they'd rather have that, that protection, but they could have gone forward in light of the issue. They could have gone through 600 acres of Indian abat habitat as the project was proposed. They could have have taken the member species of bath and beetles. They were a rival for it, but they could have gone ahead. Once, once consultation is implemented in this, as it was in this case, the core is prevented by its own regulations from ish from verifying the project until that's complete

. This is not a case where it's an entirely private actor that is trying to get a section 10 permit under the Indian Species Act, for example. This is a case where they needed federal actions before the project could be built. And in fact, they, that was what triggered consultation. And those federal actions could not go forward until the consultation was complete in this case. So. This has a fairly, there's a fairly small amount of this project that is under federal jurisdiction. And I'm wondering, do you think there's any limit to this? In other words, if there is a need for federal easements at all in a project, crossing of public water, so forth, would that always in your view constitute major federal action and mean that all of these deeper provisions have to be taken into account? In other words, where is the, is there any line where it's so private, there's so little federal involvement that you would not argue that? Sure. And there are several cases that talk about what I think you're, is commonly called the small handle problem where you have a, for example, the Winnebago case involved a core, a utility line that crossed a single waterway, and the court there said you don't have to look at everything outside of that. Well, in this case, we're not talking about one aspect of federal involvement. We're talking about 35 easements spread through, you know, approved by various agencies talking about over 2000 waterways spread along the entire project's length. And then, of course, the, the endangered species impacts. So, I don't think, I don't think this court needs to, to worry about a bright line rule. I think in this case, there's enough federal involvement, not a single mile of this pipeline could be constructed without federal involvement. We do worry about what the rule is, though, and we really, you know, are very conscious of the, you know, I know you want to, in the case for your clients, but it does feel like you're saying, well, at least in this situation where there's ABCD&E, there should be need, but, and we're really trying to get a handle on how do we articulate something that's useful for, you know, all these different actors going forward. And be helpful if you had any guidance on what, what sort of is the tipping point or what is the line as, as Mr. Brown was asking? Sure

. Well, I think the, again, I don't mean to repeat myself, but again, at least all of the federal actions in this case should have been analyzed together. So that's a starting point. And then from there, the question is whether or not the rest of the pipeline should be, should be analyzed. And I think there are, again, the core regulations, one of the factors to determine whether it needs to go outside of the boundaries is to the extent of whether there's cumulative federal involvement. The government never responds to that regulation. Isn't it more collective? I thought cumulative is kind of over time. And when they talk about the need with public action that's cumulative on top of private, like background, private ambient noise. And then when something that's subject to regulation is added on top of that sort of sequentially, is this really a situation of cumulative or is it just collective? It's both. There's, there's, you know, of course, the cum, one of the cumulative impacts of these thousands of individual pieces of the project is the larger project. Now, there, and then there's also, if you look at it in terms of the cumulative impacts of all those, I mean, one way of looking at it is the, it can be looked at like a game of Russian roulette. If you look at the oil spills across one federal property and analyze the risks and say the risks there will be minimal over X amount of years. Well, that's a very different calculation. If you, if you add that up, you know, almost 2000 times now. And then if we're talking about other impacts to cumulative impacts to not just listed species, but, but wildlife in general, habitat, fragmentation. So all of these impacts are, she came to you looked at or should be looked at under the cumulative effects regulation. Let me ask you just one more thing about the biological opinion

. Can we think of a biological opinion, something that's available and required to be obtained by the agencies in their various disparate functions, but also something that's available. Like if there were no agency involvement at all, average presumably could come to the Fish and Wildlife Service and say we want, you know, we want some upfront analysis of a nature species act. They could have done that, right? That's a different process that set up under that section 10 process where there's no federal action where private actor is trying to get it. But here we can kind of see that as both layers operating at once because Enbridge in fact initiated this and was participating in the consultation and came away with something that similar to what it would have done had the federal agencies not been involved. Exactly. And in the record shows that there was some back and forth on that actually the average the Fish and Wildlife Service was going to limit the scope of the of their incidental take. Statement to the jurisdictional waterways, but that would have required emberage to also go out and get a section 10 permit for the non federal parts and that would have caused the delay. So after some back and forth, the Fish and Wildlife specifically decided to apply the incidental take statement in this case to the entire pipeline, including the non federal areas. Because otherwise Enbridge would have been liable for any take. And if this were 100% private, we're all on private land. And Enbridge had common gotten biological opinion or this and it'll take statement under section 10. Would that be federal action requiring NEPA for the whole pipeline? It may be I'm not sure exactly how the section 10 works with respect to NEPA. I would think that if that is an action that a federal action that allows the project to go forward. Yes, I would think that the Fish and Wildlife Service or the whatever agency is issuing that would have to analyze the impacts of the whole project. Just to make it a little harder, what if it isn't something that formally legally is required, but functionally Enbridge doesn't want to go at its peril. I mean, here, didn't they not proceed and put to say we're spending millions a day by delaying this project, we're waiting for Fish and Wildlife. So I mean, as I understand, it's not legally required. I'm 100% private. You can proceed at your peril, build away, face major liability for taking Enbridge species or you can get this. Well, I mean, I think it's important to this is not in this case the project as proposed crosses hundreds of acres of endangered species habitat. So there's no question that that would violate the endangered species act. They could not build and operate this pipeline without arming endangered species. And so even if that was entirely on private land, the same would be true there. They could certainly build it at their peril, but they would certainly be breaking the law in this case by taking endangered species and then protected habitat. So I unless the court has any other questions, I thank you. Thank you. I may at least support my name is Michael Gray. I'm here on behalf of the federal defense and with me, council table is David Coburn, his council for the interveners. I have a lot to cover. So I think maybe I'll start with the connected actions argument. And I do think that the focus of that argument in the district court and even in the complaint where it's alleged in a single sentence is that the federal actions add up to make the federal government responsible for non federal actions. And I don't think that sort of Gestalt type theory works here where you have an equal compliance for each of the federal actions and the connected actions doctrine doesn't expand the federal responsibility to non federal actions

. So I mean, as I understand, it's not legally required. I'm 100% private. You can proceed at your peril, build away, face major liability for taking Enbridge species or you can get this. Well, I mean, I think it's important to this is not in this case the project as proposed crosses hundreds of acres of endangered species habitat. So there's no question that that would violate the endangered species act. They could not build and operate this pipeline without arming endangered species. And so even if that was entirely on private land, the same would be true there. They could certainly build it at their peril, but they would certainly be breaking the law in this case by taking endangered species and then protected habitat. So I unless the court has any other questions, I thank you. Thank you. I may at least support my name is Michael Gray. I'm here on behalf of the federal defense and with me, council table is David Coburn, his council for the interveners. I have a lot to cover. So I think maybe I'll start with the connected actions argument. And I do think that the focus of that argument in the district court and even in the complaint where it's alleged in a single sentence is that the federal actions add up to make the federal government responsible for non federal actions. And I don't think that sort of Gestalt type theory works here where you have an equal compliance for each of the federal actions and the connected actions doctrine doesn't expand the federal responsibility to non federal actions. And individually you talk about the verifications that I don't think even the lesser argument that the federal actions had to be analyzed together works. Which I don't think that was asserted fully, but I don't even think that works because you need some connected actions and the verifications, the NEPA is done for that at the generic stage. And it's clear here that nationwide permit 12 was designed for exactly this situation. Was it, Mr. Gray? I'm really curious how common is this? Are there a lot of pipelines out there that are passing over substantially private land that don't have a whole pipeline NEPA analysis? It's very common. It's one of the most commonly used nationwide permits out there. I think we looked at for this version of it. And they're not all this big, but there's something like 180 different, and that's just the whole oil pipelines. And those are pipelines for which I understand you're saying for which national permits are useful. But the bottom line of my question was, and which never had under any other authority a national, a full pipeline NEPA analysis. And which are never challenged. I think the unusual thing here is that there's a challenge here alleging that because you have a number of single and complete projects that there's some, it transforms into some obligation to consider the full pipeline. The core is regulatory responsibility is focused on wetlands. And this is exactly the kind of project that the nationwide permit. If you look at the EA for the nationwide permit, it anticipates 7,900 of these crossings per year, almost 40,000 over the life of the permit. And so you look at each crossing as a separate indistan

. And individually you talk about the verifications that I don't think even the lesser argument that the federal actions had to be analyzed together works. Which I don't think that was asserted fully, but I don't even think that works because you need some connected actions and the verifications, the NEPA is done for that at the generic stage. And it's clear here that nationwide permit 12 was designed for exactly this situation. Was it, Mr. Gray? I'm really curious how common is this? Are there a lot of pipelines out there that are passing over substantially private land that don't have a whole pipeline NEPA analysis? It's very common. It's one of the most commonly used nationwide permits out there. I think we looked at for this version of it. And they're not all this big, but there's something like 180 different, and that's just the whole oil pipelines. And those are pipelines for which I understand you're saying for which national permits are useful. But the bottom line of my question was, and which never had under any other authority a national, a full pipeline NEPA analysis. And which are never challenged. I think the unusual thing here is that there's a challenge here alleging that because you have a number of single and complete projects that there's some, it transforms into some obligation to consider the full pipeline. The core is regulatory responsibility is focused on wetlands. And this is exactly the kind of project that the nationwide permit. If you look at the EA for the nationwide permit, it anticipates 7,900 of these crossings per year, almost 40,000 over the life of the permit. And so you look at each crossing as a separate indistan. It's a single and complete project and it falls within the terms of the permit it works. And it's important here to keep in mind that the actual impacts are all temporary, except for the conversion of some forested wetlands into emerging wetlands, all of which is more than double offset with mitigation. And so the idea that just because there's a lot, there's a big impact here. I think is wrong. What they really want is to expand that and make the federal government responsible for the pipeline itself. Well, they're worried. I mean, they're very candid about what they're worried about. They're worried about spills. And your position is these things are so safe that even when we assume tens of thousands of these crossings, we don't even analyze the risk of oil spills. We just don't even analyze it because they're really so safe. Well, there's a separate agency, the pipeline and heaven. But I mean in the NEPA analysis under for national planning, you know, the clean water. I mean, the the core regulatory responsibility is directed at impacts on food and material on the water. And oil spills are the within the province of a different regulatory agency that has a regulatory approach where they have set the standards and the pipeline companies come in and say, here's our plan. We meet the standards. But they don't have any NEPA responsibilities

. It's a single and complete project and it falls within the terms of the permit it works. And it's important here to keep in mind that the actual impacts are all temporary, except for the conversion of some forested wetlands into emerging wetlands, all of which is more than double offset with mitigation. And so the idea that just because there's a lot, there's a big impact here. I think is wrong. What they really want is to expand that and make the federal government responsible for the pipeline itself. Well, they're worried. I mean, they're very candid about what they're worried about. They're worried about spills. And your position is these things are so safe that even when we assume tens of thousands of these crossings, we don't even analyze the risk of oil spills. We just don't even analyze it because they're really so safe. Well, there's a separate agency, the pipeline and heaven. But I mean in the NEPA analysis under for national planning, you know, the clean water. I mean, the the core regulatory responsibility is directed at impacts on food and material on the water. And oil spills are the within the province of a different regulatory agency that has a regulatory approach where they have set the standards and the pipeline companies come in and say, here's our plan. We meet the standards. But they don't have any NEPA responsibilities. So so when you're doing a national permit, you're not looking at oil spills in part because the only oil spills you would be concerned about would be those that would pollute waterways. And so if there's like a pipeline going over 100 miles of desert, that would be a zero for you because it's just not your sticktionally relevant when you're doing a NEPA analysis from the perspective of the Clean Water Act. Right. I think that's right. Is that right? Yeah. The focus is what are the impacts of the fill materials on the water. I mean here, you're talking about mostly intermittent and ephemeral streams where essentially they dig in the water. So if you go to the trench, they lay the pipeline and then they fill the trench back in. And so the impacts are entirely temporary. I had actually misunderstood. I had thought that when any entity of the government doesn't even analysis, they do a kind of multi topic. They look at all different environmental risks. They don't just look at the environmental risks that are relevant to their agency. But it sounds like when you're describing at least the nationwide permitting of the Clean Water Act that the NEPA, the sort of ex ante-NEPA analysis, is in sort of multi factor like that. Well, there is a public interest review component where they consider impacts under different statutory regimes. But it's not the, it's certainly not the focus and it's not the primary responsibility of the core, particularly where you have another agency

. So so when you're doing a national permit, you're not looking at oil spills in part because the only oil spills you would be concerned about would be those that would pollute waterways. And so if there's like a pipeline going over 100 miles of desert, that would be a zero for you because it's just not your sticktionally relevant when you're doing a NEPA analysis from the perspective of the Clean Water Act. Right. I think that's right. Is that right? Yeah. The focus is what are the impacts of the fill materials on the water. I mean here, you're talking about mostly intermittent and ephemeral streams where essentially they dig in the water. So if you go to the trench, they lay the pipeline and then they fill the trench back in. And so the impacts are entirely temporary. I had actually misunderstood. I had thought that when any entity of the government doesn't even analysis, they do a kind of multi topic. They look at all different environmental risks. They don't just look at the environmental risks that are relevant to their agency. But it sounds like when you're describing at least the nationwide permitting of the Clean Water Act that the NEPA, the sort of ex ante-NEPA analysis, is in sort of multi factor like that. Well, there is a public interest review component where they consider impacts under different statutory regimes. But it's not the, it's certainly not the focus and it's not the primary responsibility of the core, particularly where you have another agency. Many, you have like the, in the, the air come a co case from the fourth circuit, which is a coal mining case where the core limits the consideration of its impacts to the fill in the water in the coal mine itself. And all the upland impacts outside of the waters aren't the core responsibility because they're regulated by the state. And here Congress has chosen not to regulate the location and construction of these pipelines. And so the core does have any cause to expand its regulatory responsibility. So it won't look at like the cultural and historic. And if you go right by, you know, Tams and Donners house and that's not in the NEPA analysis when you're putting setting up the national permit. Well, I mean the national permit is so broad. That's one of the things that could be considered by the district engineer in verify that this, and if it, if it came so close that it might require an individual permit, and the district engineer could say, you know, this is not a situation where we're going to verify that this falls within the nationwide permit because of impacts to cultural resources. And so we think you need an individual permit. But here there's no obligation that any of these 2000 water crossings wasn't within the terms of the permit. So if somebody had raised in the ex-Anti-NEPA analysis for the national permit, the risk of oil spills, if you know, Sir, Sir, a club had come in and said, look, Russian roulette, you know, you had these, these separate pieces and you're going to get a serious risk of oil spills. Is that something that the core would then have considered? I think it would have had to respond to the, to the comment. I'm not, I'm not sure how it would have, I don't think it would have been under any obligation to expand its NEPA analysis to consider that. And it, you know, it wasn't raised here. I should probably talk a little bit about the biological opinion and incidental take statement. And I do think that this is much closer situation to the, to the San Luis case than it is to Ramsey

. Many, you have like the, in the, the air come a co case from the fourth circuit, which is a coal mining case where the core limits the consideration of its impacts to the fill in the water in the coal mine itself. And all the upland impacts outside of the waters aren't the core responsibility because they're regulated by the state. And here Congress has chosen not to regulate the location and construction of these pipelines. And so the core does have any cause to expand its regulatory responsibility. So it won't look at like the cultural and historic. And if you go right by, you know, Tams and Donners house and that's not in the NEPA analysis when you're putting setting up the national permit. Well, I mean the national permit is so broad. That's one of the things that could be considered by the district engineer in verify that this, and if it, if it came so close that it might require an individual permit, and the district engineer could say, you know, this is not a situation where we're going to verify that this falls within the nationwide permit because of impacts to cultural resources. And so we think you need an individual permit. But here there's no obligation that any of these 2000 water crossings wasn't within the terms of the permit. So if somebody had raised in the ex-Anti-NEPA analysis for the national permit, the risk of oil spills, if you know, Sir, Sir, a club had come in and said, look, Russian roulette, you know, you had these, these separate pieces and you're going to get a serious risk of oil spills. Is that something that the core would then have considered? I think it would have had to respond to the, to the comment. I'm not, I'm not sure how it would have, I don't think it would have been under any obligation to expand its NEPA analysis to consider that. And it, you know, it wasn't raised here. I should probably talk a little bit about the biological opinion and incidental take statement. And I do think that this is much closer situation to the, to the San Luis case than it is to Ramsey. Ramsey is a very extraordinary case where you have a non-federal actor, a non-federal applicant that's engaging in an activity that bites nature is designed for the direct take of the species, fishing. And in that situation, the court said it's a functional equivalent of a permit, but even the Ninth Circuit has sort of limited that to its facts in the San Luis case. And so, as a general matter, these agencies aren't the, the Fish and Wildlife Service and the National Marine Fisheries Service aren't engaging in action that requires NEPA. I actually read the San Luis case a little bit differently saying that the entity, the Fish and Wildlife Service, when it issues the biological opinion is not engaging in federal action because the federal action is occurring downstream at the next stage when the agency implements that. And it was only because it was implementing agency in Ramsey that that's, that's where the responsibility fell. But it's saying that, you know, for example, here you have an incidental take statement that is dealing with the whole pipeline and then whoever is implementing that, for example, in the verification process it's becoming part of the, of the verifications. There would be under San Luis. And that's where the NEPA compliance happened through the verification process. But there's a kind of a, of a, of a circularity there because you have X-Anti-Nepanel, this for the National Permit, and then you have the verification and in between you have this, ITS that's happened. And so, is there an obligation triggered? I mean, are you will understand, Luis, there's an obligation triggered there because of the interdependent action. I think you have to look at what, under that you have to look at what the underlying action is. And so in San Luis reclamation was, was engaging in a major federal action that required in the I.S. and here the core isn't. So, you know, it's only said where they're engaging in a major federal action is the action agency's responsibility to comply with NEPA. Well, if there's no NEPA responsibility on the action agency because it's already taken care of, then the ITS isn't transformed into an expanded and required more NEPA analysis at that stage

. Ramsey is a very extraordinary case where you have a non-federal actor, a non-federal applicant that's engaging in an activity that bites nature is designed for the direct take of the species, fishing. And in that situation, the court said it's a functional equivalent of a permit, but even the Ninth Circuit has sort of limited that to its facts in the San Luis case. And so, as a general matter, these agencies aren't the, the Fish and Wildlife Service and the National Marine Fisheries Service aren't engaging in action that requires NEPA. I actually read the San Luis case a little bit differently saying that the entity, the Fish and Wildlife Service, when it issues the biological opinion is not engaging in federal action because the federal action is occurring downstream at the next stage when the agency implements that. And it was only because it was implementing agency in Ramsey that that's, that's where the responsibility fell. But it's saying that, you know, for example, here you have an incidental take statement that is dealing with the whole pipeline and then whoever is implementing that, for example, in the verification process it's becoming part of the, of the verifications. There would be under San Luis. And that's where the NEPA compliance happened through the verification process. But there's a kind of a, of a, of a circularity there because you have X-Anti-Nepanel, this for the National Permit, and then you have the verification and in between you have this, ITS that's happened. And so, is there an obligation triggered? I mean, are you will understand, Luis, there's an obligation triggered there because of the interdependent action. I think you have to look at what, under that you have to look at what the underlying action is. And so in San Luis reclamation was, was engaging in a major federal action that required in the I.S. and here the core isn't. So, you know, it's only said where they're engaging in a major federal action is the action agency's responsibility to comply with NEPA. Well, if there's no NEPA responsibility on the action agency because it's already taken care of, then the ITS isn't transformed into an expanded and required more NEPA analysis at that stage. So, let's say that the, in our case that the ITS did require more, you know, in order to get in and look at the pipeline to check out the status of the Beatles and the Bats, you have to build, you know, 100 little extra dirt roads to access it and road along, you know, what didn't use to have one. That would be a federal action that would require more than just the mere verification. I think it's certainly possible that if the action agency accepted, what, let's just stipulate that that would be a major federal action. And yeah, I'm not, I don't know if it would, but let's just say it would. If the action agency accepted that and said, yes, okay, we're going to change the nature of our proposed action such that we're going to do these things that are now major federal actions, then yes, I think at that point, then the NEPA obligation attaches. And that's the, you know, the consolidated salmon case, I think is the name of it that that's what happened in that case, but that's not what happened here. I mean, the, the, the idea is required some monitoring it on the part of the core. And so I didn't do anything to expand the NEPA obligations. So I think ultimately, but we're dealing here with as a private undertaking, 96% of which is on private land. And with federal actions that essentially have no permanent impacts that aren't offset by some mitigation. And the district court correctly concluded that in that situation, the NEPA does not require the government to study the impacts of the full pipeline. And the district should therefore be affirmed. Thank you. Thank you. Okay. Mr

. So, let's say that the, in our case that the ITS did require more, you know, in order to get in and look at the pipeline to check out the status of the Beatles and the Bats, you have to build, you know, 100 little extra dirt roads to access it and road along, you know, what didn't use to have one. That would be a federal action that would require more than just the mere verification. I think it's certainly possible that if the action agency accepted, what, let's just stipulate that that would be a major federal action. And yeah, I'm not, I don't know if it would, but let's just say it would. If the action agency accepted that and said, yes, okay, we're going to change the nature of our proposed action such that we're going to do these things that are now major federal actions, then yes, I think at that point, then the NEPA obligation attaches. And that's the, you know, the consolidated salmon case, I think is the name of it that that's what happened in that case, but that's not what happened here. I mean, the, the, the idea is required some monitoring it on the part of the core. And so I didn't do anything to expand the NEPA obligations. So I think ultimately, but we're dealing here with as a private undertaking, 96% of which is on private land. And with federal actions that essentially have no permanent impacts that aren't offset by some mitigation. And the district court correctly concluded that in that situation, the NEPA does not require the government to study the impacts of the full pipeline. And the district should therefore be affirmed. Thank you. Thank you. Okay. Mr. Hayes, you have no time remaining. We'll give you two minutes if you need it. Thank you. I'll be very brief. One issue that I think there was some discussion about whether the, this idea of all the federal connected actions is something that we raised below our, this is a new argument. And again, it's, we did argue that below. It's in our complaint. And, and, but I think one thing that is important to note is that, that once what the district court here did was rule that any claims related to the easements at the preliminary junction stage, the district court rule that those claims weren't right, the district court needed to look at the easements before it could apply NEPA. Once those became right, the district court essentially held that it doesn't need to look at the actual easements and that they comply with, with NEPA regardless. So there are, there are several issues with respect to those easements themselves that Sierra Club was never afford the opportunity to raise in the district court. The scoping issues we did raise, that was an issue from the outside of this case, the district court rule on that. And, and I think that's an error of law that we're asking the court to reverse. But there are also a lot of issues with respect to the sufficiency of the environmental assessments. The, the sufficiency of the analysis with respect to cumulative impacts, greenhouse gas emissions, the direct indirect and cumulative impacts contained in those yeas that we never had an opportunity to raise. And I think those, you would not be precluded from, I mean, I don't think the government would be precluded from bringing a separate case on the content of the environmental analyses. I think that, but the district court said was, yeah, I assumed the scope of those and I took them into account

. Hayes, you have no time remaining. We'll give you two minutes if you need it. Thank you. I'll be very brief. One issue that I think there was some discussion about whether the, this idea of all the federal connected actions is something that we raised below our, this is a new argument. And again, it's, we did argue that below. It's in our complaint. And, and, but I think one thing that is important to note is that, that once what the district court here did was rule that any claims related to the easements at the preliminary junction stage, the district court rule that those claims weren't right, the district court needed to look at the easements before it could apply NEPA. Once those became right, the district court essentially held that it doesn't need to look at the actual easements and that they comply with, with NEPA regardless. So there are, there are several issues with respect to those easements themselves that Sierra Club was never afford the opportunity to raise in the district court. The scoping issues we did raise, that was an issue from the outside of this case, the district court rule on that. And, and I think that's an error of law that we're asking the court to reverse. But there are also a lot of issues with respect to the sufficiency of the environmental assessments. The, the sufficiency of the analysis with respect to cumulative impacts, greenhouse gas emissions, the direct indirect and cumulative impacts contained in those yeas that we never had an opportunity to raise. And I think those, you would not be precluded from, I mean, I don't think the government would be precluded from bringing a separate case on the content of the environmental analyses. I think that, but the district court said was, yeah, I assumed the scope of those and I took them into account. And, you know, the depth of them or the actual substance of them was the thing I didn't need to know, she says in her final opinion. And so I think that, you know, you're basically making a discretionary decision to extend. You want to challenge those on their substance, do it, do it in a different case. Well, but, you're on a once we filed a motion to supplement the complaint with those claims. And the district court essentially ruled that, are, that these environmental assessments comply with NEPA. Did she rule that? Well, the, the, she ruled on, she said that the, the, and now regardless of what the content of the, now we asserted those claims in our supplemental complaint, additional claims, and the district court ruled against that and dismissed our, excuse me, issued some regurgiment against this ruling that these environmental assessments need not be analyzed together with the other federal actions. And, but essentially that they comply with NEPA. So it would give us a pause to file a new complaint to assert all of these additional claims after the district court made such a finding. So, and I just want one other, the only other point that I want to make is that the, the question of whether the Army Court of Engineers has to look at anything beyond simply the fill of wetlands, the ocean advocates and singular cases that we cite in our briefs. They talk about the Army Court of Engineers has to look at not just the, the, the 404 fill actions, but also the operation of the project and that includes the risk of oil spills. So, for those reasons, we're asking the court to reverse the district court and require NEPA analysis of all the federal actions. Thank you. Thank you. The case will be submitted.

Case number 14-5205. Sierra Club, appellant versus United States Army Corps of Engineers at L. Mr. Hayes for the appellant, Mr. Gray for the Appalise. Good morning, and may I please the court. My name is Douglas Hayes. On behalf of Sierra Club and the Appaliance and this matter, I'd like to reserve two minutes of my time for a battle. As you know, this case involves the Ambridge, Flanagan South, Crude Oil Pipeline, which was constructed between four states, following the approval of various federal agencies. Now, the actions in this case include 33 easements across federal properties, four decisions by the Army Corps of Engineers to approve water crossings, to almost 2,000 water crossings across four states, and decision by the Fish and Wildlife Service to allow the take of two endangered species in the species habitat, which was implemented by the Florida. The preliminary question, because Imbridge says this whole thing is moot. The pipeline is finished, it's already operational, so why isn't it moved? Thank you. First of all, it's important to note that the government does not also make that argument. The test in this circuit and other circuits is whether, even if Anita project is complete, whether the agencies retain the authority to impose additional mitigation measures and at least provide, partial relief, and that's true in this case, the government hasn't disputed that it has that authority to impose additional mitigation measures in. What kind of mitigation measures might it impose under what authority? Under the authority, under the Clean Water Act, under the easement granting statues. So because the verifications are conditioned on continuing, serving of the public interest in all the various conditions therein, or are you talking about the separate permitting of the BIA lands and that. That's correct. The Corps Statue, or excuse me, the Clean Water Act Statue and regulations allow the Corps to impose mitigation measures throughout the life of the project. And just to give you an example of the type of mitigation measures we're talking about, the environmental protection agency in this case is worried about oil spills. They're worried not just the catastrophic oil spills like we saw in the average pipeline in Michigan, but the EPA was referring to up to 2% of a pipeline's volume could go undetected by the spill response system. And that's with the pipeline of this size. That's up to 500,000 gallons a day that could go undetected. So EPA suggested several additional mitigation measures, including monitoring wells, insensitive areas, different shutoff valves, spill response equipment. All of these were mitigation measures that EPA was urging the Corps to take, but were never considered in the NEP analysis. Those were not considered in the national permit because no probably raised them, is that right? So to what extent is that preserved? That's true. The oil spills were never considered in the national nationwide permit itself. And in fact, that document was limited to just looking at half acre fills of wetlands for these waterways. And in fact, that document said in our appendix at page 316 that document even says, NEPA requires more than this. You can't just look at the impacts of fill to waterways. And it says all additional impacts would be analyzed for certain projects at the project level. So even nationwide permit 12 itself anticipated additional impacts to be analyzed at the project level. That was never done here. Now, meaning the verification? The verifications. And in this case, we're looking at the verifications, the Fish and Wildlife Service Action, but also the easements that there were 33 easements that were analyzed in three separate areas. Now, those, the connected action regulations in this case underneath any. I think it's a connected action just for a moment. Was the risk of oil spills considered in those environmental assessments? It was, but it was limited to those actual easements. That's correct. And the measures required or not? No. Not the mitigation measures, is the EPA was asking for exactly. So in, for example, EPA was specifically concerned, even with those areas was considered, was, excuse me, was concerned about sensitive areas like the upper Mississippi River watershed. Those mitigation measures to protect those areas were not implemented in this case. So, but it's important to, to the government and the average go to great lengths to talk about how oil pipelines as a whole are not major federal actions per se. But in this case, we, the, there's no question that there has been major federal action in the NEPA regulations apply. The easements were major federal action, the district court acknowledged that. Therefore, the connected action regulations apply and, and there the government and, and average, neither, neither party disputes that none of these various federal actions would have independent utility. So based on the Delaware River Keeper case in this court, and decades of segmentation connected action case law in this circuit, at least those federal actions had to be analyzed in the same way. It seems like Mr. River Keeper is a case that involves FERP and FERP has authority over the whole of the pipeline project, and that seems to me different than a case where the action agencies have a very minimal role to play here. Something like between two and four percent of this whole pipeline and the rest of it's on private land, which is in that two percent, two to four percent is not in one. The only one discrete area it separated across the entire pipeline. But I think to answer your question, it's important to break that into two parts. Delaware River Keeper holds that various federal actions taking to approve a single project need to have independent utility if 30 be looked at separately. So, for at least the federal actions in this case, the easements, the other areas within federal jurisdiction, those are connected. What I think you're asking. I'm sorry, I didn't want to go ahead. I think the second part is whether the non-federal or areas outside of the federal jurisdiction should be included in that analysis. And the answer to that is yes, as well, but just as an initial matter, at least the federal actions that were analyzed here, the areas within federal jurisdiction, the connected action regulations in Delaware River Keeper and Hammond, being in order to all require that these federal actions be analyzed together. There's some appeal to that, but I'm not sure that I see that as something that you were pressing in the district court. You know, you sort of have these concentric claims. One is at least group all the neat evaluations that were going on with respect to the federally controlled or permitted or supervised lands together in one package. And then you have the broader claim about covering the private scope, and I guess we'll get onto that with the biological opinion. But the smaller claim is, is that something you pressed in the district court? It is. It was in our complaint. We alleged that each of these federal actions individually triggered NEPA, but also that the, that all of the federal actions and the non-federal parts of the pipeline should have been analyzed together. And I think, right. And the non-federal, but the sort of lesser included claim that just if we only can see that we're going to look at the federal parts, those should be done together. That's a claim that I feel, I perceive as someone new. So, I think the district court's opinion sort of mischaracterizes what are claimed and does just talk about whether the whole federal pipeline, the excuse me, whether the whole pipeline is a measure of better action, whether the whole analysis, whether the whole pipeline should have been considered together. But are our complaint alleges that each of these, each of these actions, federal actions should have been analyzed together? Isn't your approach to this nullify all the benefits of the general permit authority? I mean, because my understanding of that is that NEPA is considered when that's done in the first instance, and it sounds like you're saying, then you have to go back and do it all again. No, Your Honor, I don't think it does not nullify the benefits. I mean, the nationwide permit 12 was intended, was never intended for projects of this magnitude. Now, when you have 2,000 water crossings being lumped together and you have the core implementing and the Endangered Species Act take, and then you have connected to that 33 easements, at least in this situation, and all these federal actions should have been analyzed together. This is not a situation where you simply were asking for a handful of water crossings to be looked at together. Let me ask you with respect to the, really, I guess the incidental take statement, but all of them, I mean, there's something a little perverse about saying, well, the incidental take statement is with respect to the entire pipeline, public and private, and we know that the Ninth Circuit has viewed its own take statements as triggering NEPA review. So there's some authority out there. But then when you think about this on the ground, what is the review that that action should trigger? So the action is, let's protect species along the pipeline. If that's a federal action triggering environmental review, what about that conduct that is, you know, safe harbored by the ITS needs to be analyzed for environmental impact? It itself is an environmental protection measure. The, the, the, fish and wildlife service consultation and the incidental take statement is, is looking at whether or not this will jeopardize the, the existence of a species. That's an entirely different question as to what, what the impacts are on these species and whether in light of that, whether or not the project should go forward. So, of course, the, the fish and wildlife service has discretion that would be informed by NEPA to impose certain reasonable, improved measures to minimize those impacts. But then the core, they're also- That's done so. That's correct, but those were not part of any NEPA process. But then it's the, it's up to the core in this case to decide in light of that, whether to go forward with the project. And even within, even when the core is verifying projects under Nationwide Permit 12, the district engineers are required to look at the entire project and decide whether they'll have more than a minimal impact on the environment. In this case, that included the impacts in dangerous species. So, it's not the monitoring that's been put in place, pursuant to the ITS, that your worry is going to cause environmental impact. It's, it's that, or is it? Well, that's a, that's one thing that would be informed by a NEPA now. Since the monitoring, of course, is not monitoring just, just for the sake of monitoring, it's because there are ongoing environmental impacts from the operation of the pipeline from the, the permanent maintenance of a, of a right of a way through everything in its path. For 600 miles, none of these, none of these impacts were ever analyzed by, by any agency. What do they do to monitor? They track trucks along, they do helicopters, they motorbike up and down. I believe there are over, and some of the, the core areas talk about monitoring from the air. There's also on the ground monitoring. There's monitoring for, you know, re-vegetation of parts of the right of way and so forth. So there's, I mean, they're not checking on beetles from the helicopters, are they? I, I don't believe so, on the ground. So they're actually going on, say, presumably? Presumably, yes, yes. Along the entire route of the pipeline, not just in the, in the jurisdictional areas. And it looks like my time's up in this. I could, I'm trying to understand your argument, or the best authority you have for your argument that, under the connected action analysis, you look at the non-federal actions as well. The, the, CEQ, the NEPA regulations at 40 CFR, 508.25, talk about not only connected actions, but cumulative actions. 1508, 40 CFR, 508.7, specifically states that that includes the cumulative effects of federal and non-federal actions. There are the core's own NEPA scoping regulations talk about when their control on responsibility has to be extended to upwind areas. The public citizen case, sites the, the 1508.7 regulation talking about. So all of these, and of course the Delaware Riverkeeper case in this circuit talked about, use that, that regulation to, to say, all of the cumulative, even if the connected action regulation didn't apply, these are all cumulative actions that should have been analyzed together. So, so those are all, again, that's sort of the second question. First is these, the federal actions should have been analyzed together, but then the, clearly, this is all part of one interdependent project. And all of these NEPA regulations together are intended to prevent an agency from breaking it up into thousands of pieces and to look at the entire project. Can you address Ramsey and Sennelies and explain how you think the logic of those cases most governs your case? This is the Sennelies case. Sure. So this, the question is to whether or not, first of all, the question is to whether or not the Fish and Wildlife Service action itself, standing alone with of Trigger NEPA is, is, you know, in this case we, again, we know that there is NEPA that was triggered and by the easements, and that should bring in the federal. Well, with respect to a very limited geographic parts of the pipeline, the only action that is with respect to the entire pipeline, public and private, is the incidental take statement that I'm aware of. The biological opinion that gets the whole thing public, private, that's partly why I'm interested in that and whether that is a federal action, triggered a federal action itself brings on NEPA review. So Ramsey said that if the under the, the very broad definition of major federal action, it includes any sort of fate. So, I think that's a very important subject to go forward. Now, Ramsey said in this case it's functionally equivalent to a permit, but the reasoning was because the project would essentially be prohibited if not for that action. Because there it was taking the fish. Was that the fish case? Yes, it was the fish case. It was a state run fish program that would have taken other, taken species. We're here that's not really true. I mean, if, if Amber did want to go ahead and the agencies wanted to go ahead at their parallel, they could have. There's no sort of actual prohibition. Not at opinion, we, you know, to safe harbor, they'd rather have that, that protection, but they could have gone forward in light of the issue. They could have gone through 600 acres of Indian abat habitat as the project was proposed. They could have have taken the member species of bath and beetles. They were a rival for it, but they could have gone ahead. Once, once consultation is implemented in this, as it was in this case, the core is prevented by its own regulations from ish from verifying the project until that's complete. This is not a case where it's an entirely private actor that is trying to get a section 10 permit under the Indian Species Act, for example. This is a case where they needed federal actions before the project could be built. And in fact, they, that was what triggered consultation. And those federal actions could not go forward until the consultation was complete in this case. So. This has a fairly, there's a fairly small amount of this project that is under federal jurisdiction. And I'm wondering, do you think there's any limit to this? In other words, if there is a need for federal easements at all in a project, crossing of public water, so forth, would that always in your view constitute major federal action and mean that all of these deeper provisions have to be taken into account? In other words, where is the, is there any line where it's so private, there's so little federal involvement that you would not argue that? Sure. And there are several cases that talk about what I think you're, is commonly called the small handle problem where you have a, for example, the Winnebago case involved a core, a utility line that crossed a single waterway, and the court there said you don't have to look at everything outside of that. Well, in this case, we're not talking about one aspect of federal involvement. We're talking about 35 easements spread through, you know, approved by various agencies talking about over 2000 waterways spread along the entire project's length. And then, of course, the, the endangered species impacts. So, I don't think, I don't think this court needs to, to worry about a bright line rule. I think in this case, there's enough federal involvement, not a single mile of this pipeline could be constructed without federal involvement. We do worry about what the rule is, though, and we really, you know, are very conscious of the, you know, I know you want to, in the case for your clients, but it does feel like you're saying, well, at least in this situation where there's ABCD&E, there should be need, but, and we're really trying to get a handle on how do we articulate something that's useful for, you know, all these different actors going forward. And be helpful if you had any guidance on what, what sort of is the tipping point or what is the line as, as Mr. Brown was asking? Sure. Well, I think the, again, I don't mean to repeat myself, but again, at least all of the federal actions in this case should have been analyzed together. So that's a starting point. And then from there, the question is whether or not the rest of the pipeline should be, should be analyzed. And I think there are, again, the core regulations, one of the factors to determine whether it needs to go outside of the boundaries is to the extent of whether there's cumulative federal involvement. The government never responds to that regulation. Isn't it more collective? I thought cumulative is kind of over time. And when they talk about the need with public action that's cumulative on top of private, like background, private ambient noise. And then when something that's subject to regulation is added on top of that sort of sequentially, is this really a situation of cumulative or is it just collective? It's both. There's, there's, you know, of course, the cum, one of the cumulative impacts of these thousands of individual pieces of the project is the larger project. Now, there, and then there's also, if you look at it in terms of the cumulative impacts of all those, I mean, one way of looking at it is the, it can be looked at like a game of Russian roulette. If you look at the oil spills across one federal property and analyze the risks and say the risks there will be minimal over X amount of years. Well, that's a very different calculation. If you, if you add that up, you know, almost 2000 times now. And then if we're talking about other impacts to cumulative impacts to not just listed species, but, but wildlife in general, habitat, fragmentation. So all of these impacts are, she came to you looked at or should be looked at under the cumulative effects regulation. Let me ask you just one more thing about the biological opinion. Can we think of a biological opinion, something that's available and required to be obtained by the agencies in their various disparate functions, but also something that's available. Like if there were no agency involvement at all, average presumably could come to the Fish and Wildlife Service and say we want, you know, we want some upfront analysis of a nature species act. They could have done that, right? That's a different process that set up under that section 10 process where there's no federal action where private actor is trying to get it. But here we can kind of see that as both layers operating at once because Enbridge in fact initiated this and was participating in the consultation and came away with something that similar to what it would have done had the federal agencies not been involved. Exactly. And in the record shows that there was some back and forth on that actually the average the Fish and Wildlife Service was going to limit the scope of the of their incidental take. Statement to the jurisdictional waterways, but that would have required emberage to also go out and get a section 10 permit for the non federal parts and that would have caused the delay. So after some back and forth, the Fish and Wildlife specifically decided to apply the incidental take statement in this case to the entire pipeline, including the non federal areas. Because otherwise Enbridge would have been liable for any take. And if this were 100% private, we're all on private land. And Enbridge had common gotten biological opinion or this and it'll take statement under section 10. Would that be federal action requiring NEPA for the whole pipeline? It may be I'm not sure exactly how the section 10 works with respect to NEPA. I would think that if that is an action that a federal action that allows the project to go forward. Yes, I would think that the Fish and Wildlife Service or the whatever agency is issuing that would have to analyze the impacts of the whole project. Just to make it a little harder, what if it isn't something that formally legally is required, but functionally Enbridge doesn't want to go at its peril. I mean, here, didn't they not proceed and put to say we're spending millions a day by delaying this project, we're waiting for Fish and Wildlife. So I mean, as I understand, it's not legally required. I'm 100% private. You can proceed at your peril, build away, face major liability for taking Enbridge species or you can get this. Well, I mean, I think it's important to this is not in this case the project as proposed crosses hundreds of acres of endangered species habitat. So there's no question that that would violate the endangered species act. They could not build and operate this pipeline without arming endangered species. And so even if that was entirely on private land, the same would be true there. They could certainly build it at their peril, but they would certainly be breaking the law in this case by taking endangered species and then protected habitat. So I unless the court has any other questions, I thank you. Thank you. I may at least support my name is Michael Gray. I'm here on behalf of the federal defense and with me, council table is David Coburn, his council for the interveners. I have a lot to cover. So I think maybe I'll start with the connected actions argument. And I do think that the focus of that argument in the district court and even in the complaint where it's alleged in a single sentence is that the federal actions add up to make the federal government responsible for non federal actions. And I don't think that sort of Gestalt type theory works here where you have an equal compliance for each of the federal actions and the connected actions doctrine doesn't expand the federal responsibility to non federal actions. And individually you talk about the verifications that I don't think even the lesser argument that the federal actions had to be analyzed together works. Which I don't think that was asserted fully, but I don't even think that works because you need some connected actions and the verifications, the NEPA is done for that at the generic stage. And it's clear here that nationwide permit 12 was designed for exactly this situation. Was it, Mr. Gray? I'm really curious how common is this? Are there a lot of pipelines out there that are passing over substantially private land that don't have a whole pipeline NEPA analysis? It's very common. It's one of the most commonly used nationwide permits out there. I think we looked at for this version of it. And they're not all this big, but there's something like 180 different, and that's just the whole oil pipelines. And those are pipelines for which I understand you're saying for which national permits are useful. But the bottom line of my question was, and which never had under any other authority a national, a full pipeline NEPA analysis. And which are never challenged. I think the unusual thing here is that there's a challenge here alleging that because you have a number of single and complete projects that there's some, it transforms into some obligation to consider the full pipeline. The core is regulatory responsibility is focused on wetlands. And this is exactly the kind of project that the nationwide permit. If you look at the EA for the nationwide permit, it anticipates 7,900 of these crossings per year, almost 40,000 over the life of the permit. And so you look at each crossing as a separate indistan. It's a single and complete project and it falls within the terms of the permit it works. And it's important here to keep in mind that the actual impacts are all temporary, except for the conversion of some forested wetlands into emerging wetlands, all of which is more than double offset with mitigation. And so the idea that just because there's a lot, there's a big impact here. I think is wrong. What they really want is to expand that and make the federal government responsible for the pipeline itself. Well, they're worried. I mean, they're very candid about what they're worried about. They're worried about spills. And your position is these things are so safe that even when we assume tens of thousands of these crossings, we don't even analyze the risk of oil spills. We just don't even analyze it because they're really so safe. Well, there's a separate agency, the pipeline and heaven. But I mean in the NEPA analysis under for national planning, you know, the clean water. I mean, the the core regulatory responsibility is directed at impacts on food and material on the water. And oil spills are the within the province of a different regulatory agency that has a regulatory approach where they have set the standards and the pipeline companies come in and say, here's our plan. We meet the standards. But they don't have any NEPA responsibilities. So so when you're doing a national permit, you're not looking at oil spills in part because the only oil spills you would be concerned about would be those that would pollute waterways. And so if there's like a pipeline going over 100 miles of desert, that would be a zero for you because it's just not your sticktionally relevant when you're doing a NEPA analysis from the perspective of the Clean Water Act. Right. I think that's right. Is that right? Yeah. The focus is what are the impacts of the fill materials on the water. I mean here, you're talking about mostly intermittent and ephemeral streams where essentially they dig in the water. So if you go to the trench, they lay the pipeline and then they fill the trench back in. And so the impacts are entirely temporary. I had actually misunderstood. I had thought that when any entity of the government doesn't even analysis, they do a kind of multi topic. They look at all different environmental risks. They don't just look at the environmental risks that are relevant to their agency. But it sounds like when you're describing at least the nationwide permitting of the Clean Water Act that the NEPA, the sort of ex ante-NEPA analysis, is in sort of multi factor like that. Well, there is a public interest review component where they consider impacts under different statutory regimes. But it's not the, it's certainly not the focus and it's not the primary responsibility of the core, particularly where you have another agency. Many, you have like the, in the, the air come a co case from the fourth circuit, which is a coal mining case where the core limits the consideration of its impacts to the fill in the water in the coal mine itself. And all the upland impacts outside of the waters aren't the core responsibility because they're regulated by the state. And here Congress has chosen not to regulate the location and construction of these pipelines. And so the core does have any cause to expand its regulatory responsibility. So it won't look at like the cultural and historic. And if you go right by, you know, Tams and Donners house and that's not in the NEPA analysis when you're putting setting up the national permit. Well, I mean the national permit is so broad. That's one of the things that could be considered by the district engineer in verify that this, and if it, if it came so close that it might require an individual permit, and the district engineer could say, you know, this is not a situation where we're going to verify that this falls within the nationwide permit because of impacts to cultural resources. And so we think you need an individual permit. But here there's no obligation that any of these 2000 water crossings wasn't within the terms of the permit. So if somebody had raised in the ex-Anti-NEPA analysis for the national permit, the risk of oil spills, if you know, Sir, Sir, a club had come in and said, look, Russian roulette, you know, you had these, these separate pieces and you're going to get a serious risk of oil spills. Is that something that the core would then have considered? I think it would have had to respond to the, to the comment. I'm not, I'm not sure how it would have, I don't think it would have been under any obligation to expand its NEPA analysis to consider that. And it, you know, it wasn't raised here. I should probably talk a little bit about the biological opinion and incidental take statement. And I do think that this is much closer situation to the, to the San Luis case than it is to Ramsey. Ramsey is a very extraordinary case where you have a non-federal actor, a non-federal applicant that's engaging in an activity that bites nature is designed for the direct take of the species, fishing. And in that situation, the court said it's a functional equivalent of a permit, but even the Ninth Circuit has sort of limited that to its facts in the San Luis case. And so, as a general matter, these agencies aren't the, the Fish and Wildlife Service and the National Marine Fisheries Service aren't engaging in action that requires NEPA. I actually read the San Luis case a little bit differently saying that the entity, the Fish and Wildlife Service, when it issues the biological opinion is not engaging in federal action because the federal action is occurring downstream at the next stage when the agency implements that. And it was only because it was implementing agency in Ramsey that that's, that's where the responsibility fell. But it's saying that, you know, for example, here you have an incidental take statement that is dealing with the whole pipeline and then whoever is implementing that, for example, in the verification process it's becoming part of the, of the verifications. There would be under San Luis. And that's where the NEPA compliance happened through the verification process. But there's a kind of a, of a, of a circularity there because you have X-Anti-Nepanel, this for the National Permit, and then you have the verification and in between you have this, ITS that's happened. And so, is there an obligation triggered? I mean, are you will understand, Luis, there's an obligation triggered there because of the interdependent action. I think you have to look at what, under that you have to look at what the underlying action is. And so in San Luis reclamation was, was engaging in a major federal action that required in the I.S. and here the core isn't. So, you know, it's only said where they're engaging in a major federal action is the action agency's responsibility to comply with NEPA. Well, if there's no NEPA responsibility on the action agency because it's already taken care of, then the ITS isn't transformed into an expanded and required more NEPA analysis at that stage. So, let's say that the, in our case that the ITS did require more, you know, in order to get in and look at the pipeline to check out the status of the Beatles and the Bats, you have to build, you know, 100 little extra dirt roads to access it and road along, you know, what didn't use to have one. That would be a federal action that would require more than just the mere verification. I think it's certainly possible that if the action agency accepted, what, let's just stipulate that that would be a major federal action. And yeah, I'm not, I don't know if it would, but let's just say it would. If the action agency accepted that and said, yes, okay, we're going to change the nature of our proposed action such that we're going to do these things that are now major federal actions, then yes, I think at that point, then the NEPA obligation attaches. And that's the, you know, the consolidated salmon case, I think is the name of it that that's what happened in that case, but that's not what happened here. I mean, the, the, the idea is required some monitoring it on the part of the core. And so I didn't do anything to expand the NEPA obligations. So I think ultimately, but we're dealing here with as a private undertaking, 96% of which is on private land. And with federal actions that essentially have no permanent impacts that aren't offset by some mitigation. And the district court correctly concluded that in that situation, the NEPA does not require the government to study the impacts of the full pipeline. And the district should therefore be affirmed. Thank you. Thank you. Okay. Mr. Hayes, you have no time remaining. We'll give you two minutes if you need it. Thank you. I'll be very brief. One issue that I think there was some discussion about whether the, this idea of all the federal connected actions is something that we raised below our, this is a new argument. And again, it's, we did argue that below. It's in our complaint. And, and, but I think one thing that is important to note is that, that once what the district court here did was rule that any claims related to the easements at the preliminary junction stage, the district court rule that those claims weren't right, the district court needed to look at the easements before it could apply NEPA. Once those became right, the district court essentially held that it doesn't need to look at the actual easements and that they comply with, with NEPA regardless. So there are, there are several issues with respect to those easements themselves that Sierra Club was never afford the opportunity to raise in the district court. The scoping issues we did raise, that was an issue from the outside of this case, the district court rule on that. And, and I think that's an error of law that we're asking the court to reverse. But there are also a lot of issues with respect to the sufficiency of the environmental assessments. The, the sufficiency of the analysis with respect to cumulative impacts, greenhouse gas emissions, the direct indirect and cumulative impacts contained in those yeas that we never had an opportunity to raise. And I think those, you would not be precluded from, I mean, I don't think the government would be precluded from bringing a separate case on the content of the environmental analyses. I think that, but the district court said was, yeah, I assumed the scope of those and I took them into account. And, you know, the depth of them or the actual substance of them was the thing I didn't need to know, she says in her final opinion. And so I think that, you know, you're basically making a discretionary decision to extend. You want to challenge those on their substance, do it, do it in a different case. Well, but, you're on a once we filed a motion to supplement the complaint with those claims. And the district court essentially ruled that, are, that these environmental assessments comply with NEPA. Did she rule that? Well, the, the, she ruled on, she said that the, the, and now regardless of what the content of the, now we asserted those claims in our supplemental complaint, additional claims, and the district court ruled against that and dismissed our, excuse me, issued some regurgiment against this ruling that these environmental assessments need not be analyzed together with the other federal actions. And, but essentially that they comply with NEPA. So it would give us a pause to file a new complaint to assert all of these additional claims after the district court made such a finding. So, and I just want one other, the only other point that I want to make is that the, the question of whether the Army Court of Engineers has to look at anything beyond simply the fill of wetlands, the ocean advocates and singular cases that we cite in our briefs. They talk about the Army Court of Engineers has to look at not just the, the, the 404 fill actions, but also the operation of the project and that includes the risk of oil spills. So, for those reasons, we're asking the court to reverse the district court and require NEPA analysis of all the federal actions. Thank you. Thank you. The case will be submitted