[00:00:03] Speaker 00: Case number 15-5147, Union Neighbors United Inc. [00:00:07] Speaker 00: Appellant v. Sally Jewell and her official capacity as Secretary of the United States Department of the Interior at Elle. [00:00:13] Speaker 00: Mr. Weeks for the Appellant. [00:00:15] Speaker 00: Mr. Stockman for Appellee Sally Jewell. [00:00:17] Speaker 00: Mr. Whiteland for Appellee Buckeye Wind LLC. [00:00:53] Speaker 05: Mr. Weeks. [00:00:55] Speaker 03: Your Honor, may it please the Court I represent Union Neighbors United in this matter and would like to reserve two minutes for rebuttal. [00:01:02] Speaker 03: We seek a remand to the Fish and Wildlife Service with instructions to reconsider the incidental take permit under a proper legal interpretation of Section 10 of the Endangered Species Act and to consider a reasonable range of alternatives in its environmental impact statement. [00:01:16] Speaker 03: in support, we submit that the Department of Energy predicts that in 15 years, the nation's wind energy will supply about four times as much energy as it does today. [00:01:28] Speaker 03: That means we're going to put up a lot of new wind turbines. [00:01:31] Speaker 03: Wind turbines kill a lot of birds and bats. [00:01:34] Speaker 03: For example, in the Midwest alone, in the next 20 years, with reduction measures, the Fish and Wildlife Service estimates that wind turbines will kill almost 3 million bats. [00:01:44] Speaker 03: Some of these are endangered. [00:01:46] Speaker 03: As currently permitted, with operating measures to reduce its impact on wildlife, the Ohio Wind Project in this case will still kill 130 endangered Indiana bats. [00:01:56] Speaker 03: A Fish and Wildlife employee commented at Joint Appendix 107, that's beyond any take we have ever authorized. [00:02:04] Speaker 03: Everybody involved in this case, however, is benefited by a fortunate coincidence, including the bats. [00:02:09] Speaker 03: Bats don't like to fly in high winds. [00:02:12] Speaker 03: Wind turbines produce very little power at low wind speeds. [00:02:16] Speaker 03: and only begin to be efficient when winds are pretty brisk. [00:02:19] Speaker 03: So if we prevent the wind turbines from turning when they produce the least power at low wind speeds, we kill a lot fewer bats without losing too much power-generating capacity. [00:02:29] Speaker 02: I'd like to ask you a question about your NEPA claim. [00:02:32] Speaker 02: Yes. [00:02:35] Speaker 02: Let's suppose an agency [00:02:38] Speaker 02: evaluates three alternatives A, B, and C and at the basically as it's completing the final environmental impact statement concludes that alternative C [00:02:54] Speaker 02: is neither technologically nor economically feasible. [00:03:02] Speaker 02: It didn't know that or maybe it thought that it was going into the process, but by the time they're finishing the environmental impact statement. [00:03:11] Speaker 02: they conclude that it's not feasible. [00:03:13] Speaker 02: Yes. [00:03:14] Speaker 02: Is there authority that says at that point that they have to stop and not issue the final EIS but come up with another alternative? [00:03:26] Speaker 03: Well, in your case, given the fact that you've given me, they didn't know whether the third alternative they meant. [00:03:33] Speaker 03: It sounds like your hypotheticals meant that they meant to have a reasonable range of alternatives. [00:03:39] Speaker 03: But in this case... Answer my question about that. [00:03:43] Speaker 03: As far as I know, that would meet the requirements of having a reasonable range of alternatives. [00:03:47] Speaker 07: It would or would not? [00:03:48] Speaker 03: It would meet. [00:03:50] Speaker 07: Even though, in fact, they didn't have a reasonable range because the third range is not viable? [00:03:54] Speaker 03: Well, they learned that it was not viable upon doing the analysis of that case, upon considering it in the environmental impact statement. [00:04:01] Speaker 03: In the process of considering the alternatives, they say, we're going to examine this alternative. [00:04:06] Speaker 03: It appeared to us to be viable, but on closer examination, it doesn't appear to be viable. [00:04:10] Speaker 03: That isn't the case in this one. [00:04:12] Speaker 03: In this case, by 2010, the Fish and Wildlife Service's employees and consultants were telling it that the alternative that it reported to create a reasonable range, the alternative that we call the shutdown alternative, was not economically viable. [00:04:28] Speaker 03: And yet they continued through the process and purport to have a reasonable range of alternatives, including an alternative that they had known since far before the first draft environmental impact statement was unlikely to be viable. [00:04:40] Speaker 05: When you said the consultants said that, what are you pointing to? [00:04:47] Speaker 03: This is consultant Tim, and I will get you the site from the record. [00:04:54] Speaker 03: She actually tells the Fish and Water Service to do one of two things. [00:04:56] Speaker 03: I think either drop it because it's not economically viable or consider it or bring it forward and consider it in some respect. [00:05:07] Speaker 03: It's an interesting thing, though. [00:05:09] Speaker 03: Let's continue with the National Environmental Policy Act claim, because I think it's interesting to know why we didn't end up with a reasonable range of alternatives. [00:05:17] Speaker 03: I want to highlight the manner in which the service went from favoring a reasonable range to disavowing it, because it's relevant to both the NEPA and the Endangered Species Act claims. [00:05:27] Speaker 03: Back in 2010, in early discussion of a draft environmental impact statement, the service at Joint Appendix 96 thought it would add a six and a half meter per second cut in speed to the alternatives that considered in the impact statement. [00:05:40] Speaker 03: But that alternative was never added. [00:05:42] Speaker 03: It was never considered. [00:05:44] Speaker 03: The Joint Appendix at 112 through 117 to me illustrates why. [00:05:53] Speaker 03: The Fish and Wildlife Service had an employee that said, are we going to implement the requirement that we minimize the impacts of the tape to the maximum extent practicable? [00:06:05] Speaker 03: And if so, how? [00:06:07] Speaker 03: the Fish and Wildlife Service Regional Office answers that as long as the Jeopardy standard is met, we have met to minimize the impacts that it takes to the maximum extent practical. [00:06:19] Speaker 05: I'm sorry to go back on something, but I think what you were referring to was for Tim's to see more. [00:06:26] Speaker 05: Yes. [00:06:28] Speaker 05: But what does that tell us about what FWS itself thought? [00:06:32] Speaker 05: Well, because it can often be the case, including in Judge Wilkins' hypothetical, excuse me, that the agency might get input to the effect that something's infeasible, but that doesn't tell you that the agency itself has concluded that the alternative is infeasible. [00:06:50] Speaker 03: If the agency actually felt that there was a question about whether it was feasible or not, they might actually have studied it, as they said they had retained it to do. [00:07:00] Speaker 03: But there's no evidence that they actually took a look at it. [00:07:02] Speaker 07: And frankly, it was an... I thought JA92 was where the Fish and Wildlife Service people said that it's not economically viable. [00:07:09] Speaker 07: I thought that was your answer. [00:07:11] Speaker 03: Exactly. [00:07:12] Speaker 03: I mean, that's further evidence that they didn't think it was economically viable. [00:07:15] Speaker 05: I mean, then it seems to me that… Well, you'd have to conclude that JA-92 is the agency itself saying it as opposed to the agency characterizing what the consultant said. [00:07:24] Speaker ?: Right. [00:07:24] Speaker 03: That's certainly possible. [00:07:27] Speaker 03: But listen, we're talking about an alternative that's taking the wind turbines and shutting them down for about a quarter of the year. [00:07:34] Speaker 03: The likelihood that that was going to be a viable alternative that represented reduced impacts to compare it to Buckeye's preferred alternative was extremely unlikely. [00:07:46] Speaker 03: And yet the Fish and Wildlife Service did know [00:07:48] Speaker 03: of an alternative that was likely to be competitive. [00:07:51] Speaker 03: And in fact, they decided they didn't need to consider it because the standard that they were trying to satisfy under the Endangered Species Act minimized the impacts of the take to the maximum extent practical. [00:08:01] Speaker 03: They said the standard was a jeopardy standard. [00:08:04] Speaker 03: But that standard cannot have been the standard that they needed to satisfy. [00:08:08] Speaker 03: The jeopardy standard was already in the permitting requirements, in the fourth of the permitting requirements under section 10, a standard which basically repeats the jeopardy standard. [00:08:19] Speaker 03: The second of those standards then must mean something else. [00:08:22] Speaker 03: And what it means is that because the species is endangered, because the population is already compromised, in order to get permission to kill any of them, [00:08:32] Speaker 03: We're going to make sure that we kill as few as we practically can. [00:08:38] Speaker 07: Can I just ask you a quick question? [00:08:39] Speaker 07: What is the status of this project right now? [00:08:43] Speaker 03: As far as I know, it's still waiting for the results of this case, but I really can't tell you what's going on on the ground. [00:08:50] Speaker 07: Is it all constructed and waiting to hit the on switch? [00:08:53] Speaker 03: Ma'am? [00:08:53] Speaker 07: Is it all constructed and waiting to hit the on switch? [00:08:56] Speaker 03: Not to my knowledge. [00:08:57] Speaker 07: It's still being constructed? [00:08:58] Speaker 03: I think so. [00:09:00] Speaker 03: We have Buckeyes representatives here that you can ask a question. [00:09:05] Speaker 03: So as I said, the Fish and Wildlife Service applying the Jeopardy standard rather than Section 2. [00:09:15] Speaker 03: And this is an important point because what that represents is an ad hoc interpretation of Section 10 of the Endangered Species Act in the midst of a permit negotiation, in effect an informal adjudication. [00:09:29] Speaker 03: And it doesn't even merit a Chevron analysis. [00:09:32] Speaker 03: Why doesn't it? [00:09:33] Speaker 07: The handbook, at least from my understanding, is the handbook went through notice and comment proceedings. [00:09:39] Speaker 07: Is that correct? [00:09:40] Speaker 03: The handbook certainly, the 96 handbook did go through notice and comment. [00:09:43] Speaker 03: But if you look at the record in this case carefully, you will see very, very little evidence that the 96 handbook answered any questions. [00:09:51] Speaker 03: In fact, the fact that the visualizers. [00:09:52] Speaker 07: Well, we're just trying to figure out now what this statute means. [00:09:55] Speaker 07: And the agency has a handbook that went through notice and comment that gives it one reading. [00:10:02] Speaker 07: Does that, what level of deference is it entitled to? [00:10:05] Speaker 03: Well, in fact, we don't believe that the 96 Handbook is, the question of deference as to the 96 Handbook is even relevant in this case because it isn't the interpretation that the Fish and Wildlife Service used. [00:10:17] Speaker 03: They used this ad hoc interpretation in answer to their questions. [00:10:21] Speaker 03: And then as they proceeded to go through their findings, they applied a different set of guidelines, the 2011 IBAT guidance. [00:10:28] Speaker 03: But let me answer your question very specifically, even though we don't believe the 96 Handbook is the interpretation that was applied in this case. [00:10:35] Speaker 03: The 96 Handbook, the Ninth Circuit has said in the Riverwatch case, [00:10:41] Speaker 03: doesn't deserve deference. [00:10:43] Speaker 03: It doesn't deserve deference because it isn't applied to have the force of law. [00:10:47] Speaker 03: And in a number of instances, the agency itself doesn't follow it. [00:10:50] Speaker 03: In the National Law Federation case versus Babbitt 2000 in California, the official law officers argued that it wasn't bound by the 96 Handbook. [00:11:00] Speaker 03: In 1998 in Alabama, Sierra Club versus Babbitt, the court said it could find no evidence that the service followed. [00:11:06] Speaker 07: Was it bound by this particular interpretive provision within the handbook? [00:11:09] Speaker 03: Ma'am? [00:11:10] Speaker 07: Was it bound by this particular interpretive provision within the handbook? [00:11:14] Speaker 03: Was it following? [00:11:15] Speaker 07: In the cases you're talking about when they said they weren't bound by it, was it? [00:11:18] Speaker 03: No. [00:11:19] Speaker 03: In fact, they wanted to go a different direction. [00:11:22] Speaker 07: On this minimized mitigate? [00:11:25] Speaker 03: On minimized mitigate or some other aspect of the handbook? [00:11:28] Speaker 03: I can't answer that question clearly. [00:11:32] Speaker 03: But in fact, let's talk about minimize and mitigate as the 96 Handbook sets forth. [00:11:39] Speaker 03: It doesn't give any guidance as to what to do in this case. [00:11:42] Speaker 03: And one of the reasons is this case is an unusual one. [00:11:46] Speaker 03: Most of the cases under the Endangered Species Act deal with the question of impact of habitat destruction or harm. [00:11:54] Speaker 03: It's a rather unusual matter where we're talking about directly killing endangered species. [00:12:00] Speaker 03: And because we're talking about directly killing endangered species, the meaning of the statute as it applies to minimizing the take to the maximum extent practicable becomes really important. [00:12:11] Speaker 03: And that's why we think the Gerber case that this court decided in 2002 is so vital. [00:12:18] Speaker 03: It does two really important things. [00:12:20] Speaker 03: The first of them is that at page 184, the court says that it's plain on the face of the statute that the service must make a finding. [00:12:31] Speaker 03: And the finding that the service must make is that the minimization that the applicant has minimized to the maximum extent practical. [00:12:38] Speaker 03: That means that the Gerber court, which had an extended discussion of mitigation, separately said that when you come to minimization, you've got to make a separate finding. [00:12:47] Speaker 07: Do you dispute that to the extent practicable, practicable includes things like cost benefit analysis as a component? [00:12:55] Speaker 03: Practicable includes. [00:12:57] Speaker 07: Cost-benefit analysis? [00:12:58] Speaker 03: Cost-benefit analysis. [00:13:00] Speaker 03: Well, what practical means, we believe, has been determined in some respects by precedence of this court in the Ashton case, which happens to be a lead poisoning prevention case, the court construing similar language, so that it means feasible. [00:13:15] Speaker 03: And feasible begins with... Is cost-benefit a factor in that? [00:13:21] Speaker 03: Cost is a factor, but in section... Whether it's worth the candle, is that part of it? [00:13:27] Speaker 07: Not just cost, but whether the benefit you're going to get is worth the cost that you're going to incur in the process. [00:13:32] Speaker 03: Our view is that section, the second of the permitting requirements does not say that you balance in some outside way the issue of benefit versus cost, because Congress has set a different standard. [00:13:46] Speaker 03: Congress says it's so important [00:13:48] Speaker 03: that we reduce the, that we minimize the take to the maximum extent practical, that we're not going to say we're going to balance costs and benefits. [00:13:57] Speaker 02: That's not the language of Congress used. [00:13:58] Speaker 02: The statute said minimize the impact of the take. [00:14:03] Speaker 02: Exactly. [00:14:05] Speaker 02: So when Congress wants to speak directly about the take, it knows how to because in the previous subsection, it says it describes, you know, an incidental take. [00:14:15] Speaker 03: Yes. [00:14:17] Speaker 02: So Congress didn't say you have to minimize the actual taking. [00:14:21] Speaker 02: No. [00:14:22] Speaker 02: It said you have to minimize the impact of the taking. [00:14:25] Speaker 02: That's certainly correct. [00:14:26] Speaker 02: They're doing very different things. [00:14:27] Speaker 03: They can be very different. [00:14:29] Speaker 03: They can be very different. [00:14:30] Speaker 03: And if we're talking, for example, about habitat destruction, we could say, you know how you can minimize the take of habitat destruction? [00:14:38] Speaker 03: Instead of putting your project here in the highest quality habitat, put it over here in the lowest quality habitat, if it's practicable to do so. [00:14:45] Speaker 03: But when we're talking about the taking of a group of individuals, [00:14:49] Speaker 03: then the most sensible, the most obvious, the clearest way to reduce the impact of that take of a group of individuals is to reduce the number taken. [00:14:58] Speaker 03: That's how you reduce the impact of the take of a number of individuals. [00:15:02] Speaker 03: We don't see a lot of cases about that because there aren't a lot. [00:15:04] Speaker 07: Normally people are killing indirectly. [00:15:06] Speaker 07: Maybe you could do all these extra efforts and save two bats over here, or you could take mitigation measures over here, which would actually create a very important [00:15:15] Speaker 07: breeding ground that would actually increase the number of bats by 50. [00:15:19] Speaker 07: And so the net, under their theory, would be 48. [00:15:24] Speaker 07: Under yours, it would be saving two. [00:15:25] Speaker 07: Why isn't that a reasonable construction of the statute to say, look, we're going to look at the whole picture of what's being accomplished here and its impact on the species? [00:15:33] Speaker 03: Well, we do indeed have to look at the whole picture. [00:15:35] Speaker 03: And Congress said do both. [00:15:37] Speaker 03: It said minimize, and it said mitigate. [00:15:40] Speaker 03: Both of those words are presumed to have meaning. [00:15:44] Speaker 03: What happens if you do what the Fish and Wildlife Service did in this case, and that is you do a little bit of minimization, which I will call reduction, not minimization, because minimize means reduce to the minimum. [00:15:55] Speaker 03: If you do a little bit of minimization, and then you switch over and say, hey, [00:15:59] Speaker 03: We can do some mitigation, too. [00:16:01] Speaker 03: And you do some mitigation and say, with this mitigation, we've netted out the number of individuals that we say that we brought our minimization down and are going to lose. [00:16:10] Speaker 03: What the effect of that is, is that you never do what Congress told you to do. [00:16:15] Speaker 03: Congress said minimize, and what you have done instead is simply reduce. [00:16:19] Speaker 03: You didn't minimize to the maximum extent practical, you simply reduced. [00:16:27] Speaker 03: I deserve to remain there my time for your vote. [00:16:29] Speaker 03: Thanks. [00:16:36] Speaker 05: Mr Stockman. [00:16:37] Speaker 06: Thank you. [00:16:38] Speaker 06: May it please the court my name [00:16:41] Speaker 06: is Robert Stockman here on behalf of the U.S. [00:16:43] Speaker 06: Fish and Wildlife Service. [00:16:44] Speaker 06: With me at Council's table is Paul Weiland for Buckeye. [00:16:47] Speaker 06: He will talk more about where the facility is, but short answer is it's not yet been built, and it's also being held up by petitions before the Ohio Siding Board by, among others, plaintiffs. [00:16:58] Speaker 06: But we asked this court to affirm the district court's decision and uphold the ITP. [00:17:03] Speaker 06: I'd like to start with the ESA claim, laying out our affirmative case, and then quickly discuss some of the biggest problems with their case. [00:17:11] Speaker 06: First, hear the service reasonably found. [00:17:13] Speaker 06: based its analysis primarily on a biological analysis. [00:17:16] Speaker 06: It's a wildlife agency. [00:17:17] Speaker 07: Can you just help me up front with this statutory construction question of how to read, minimize, and mitigate to the maximum extent possible, practicable? [00:17:25] Speaker 07: And in particular, I didn't read your brief as claiming Chevron deference to a handbook position that looks at the two together. [00:17:38] Speaker 06: Oh, well, I meant to claim. [00:17:41] Speaker 06: I mean, we did cite Chevron and discuss how. [00:17:43] Speaker 08: You did cite Chevron. [00:17:44] Speaker 06: You didn't argue for Chevron. [00:17:46] Speaker 06: It's a notice and comment document. [00:17:48] Speaker 06: I would note that they didn't cite the, they're saying now that we've backed away from that in other cases. [00:17:53] Speaker 06: They didn't cite any of those in either their reply or opening brief. [00:17:56] Speaker 07: Well, how about your 2011, I mean, that's a 96 handbook. [00:17:59] Speaker 07: In 2011, you have the Indiana bat. [00:18:02] Speaker 07: That's handbook guidance or whatever it's called. [00:18:04] Speaker 07: And that seems to say the opposite. [00:18:08] Speaker 07: And your environmental impact statement here also seemed to prescribe the opposite approach to doing it in stages, minimize first and then mitigate the leftovers. [00:18:18] Speaker 07: So there's twice in the agency with respect to this specific context, use the opposite test in articulating the rules. [00:18:24] Speaker 07: So what am I supposed to do? [00:18:26] Speaker 06: The ultimate test is the one that's laid out in the handbook, which is the 1996 document. [00:18:33] Speaker 06: But there's discretion about how to process applications. [00:18:37] Speaker 06: And the Indiana BAT guidance makes it clear that because there's a lot of uncertainties about Indiana BATs, about mitigation, about wind power, [00:18:45] Speaker 06: we will focus on minimizing first before we get to mitigation. [00:18:49] Speaker 06: But that isn't to say that we've changed the fundamental standard. [00:18:52] Speaker 06: And one thing I would say about the handbook, and this is at the Joint Appendix at 1293, is it emphasizes that it sees, quote, each HCP would be unique to its own factual setting, unquote. [00:19:04] Speaker 06: And it lays out that this isn't [00:19:05] Speaker 06: You know, each species is different. [00:19:07] Speaker 06: Each project is different. [00:19:08] Speaker 06: Each thing is going to need to be processed in its own way. [00:19:11] Speaker 06: So we haven't come up with some kind of cookbook of exactly how to process each and every thing. [00:19:15] Speaker 06: And the handbook says that. [00:19:17] Speaker 06: But the ultimate question is a two factor question. [00:19:20] Speaker 06: First, the biological impact of the species. [00:19:22] Speaker 06: And then only after that do we get to practicability. [00:19:25] Speaker 06: When it comes to wind power, it is true. [00:19:27] Speaker 06: We emphasize minimizing first, because we just have enough uncertainty about this particular species and these particular projects that we think minimizing is really important. [00:19:38] Speaker 06: So that's how we process them internally to the agency. [00:19:41] Speaker 06: But we don't think that that wasn't. [00:19:43] Speaker 07: So you thought minimizing was really important. [00:19:45] Speaker 07: Why didn't you include some viable alternative in your NEPA analysis that actually minimized them and was viable? [00:19:52] Speaker 06: Oh, first, the proposed alternative does an amazing amount to minimize. [00:19:55] Speaker 06: And they've done a good job of exaggerating. [00:19:57] Speaker 07: They've done it very well. [00:19:59] Speaker 07: But there's another economically viable option that would have minimized even more. [00:20:03] Speaker 06: So you're always going to be able to go just a little bit further. [00:20:07] Speaker 06: Here you have an option, right? [00:20:08] Speaker 06: The proposal has a maximum cut in speed in fall of 6 meters per second, then 5.75. [00:20:14] Speaker 06: They're saying, oh, you should have looked at 6.5 throughout the year. [00:20:18] Speaker 06: That's marginally different than 6. [00:20:21] Speaker 06: And the science just doesn't show definitively whether there's an added benefit there. [00:20:26] Speaker 06: And if it is, it's probably pretty small, whereas it's much more costly. [00:20:30] Speaker 06: Now, one thing to keep in mind is their proposal is, on its face, more unreasonable than the maximally restricted alternative. [00:20:36] Speaker 07: Where did you explain all this in your NEPA analysis? [00:20:40] Speaker 06: Well, I think that in the response to comments at page 567 through 68, there's where we said, to the extent they need to show that this is, to the maximum extent, practicable, we've done that. [00:20:54] Speaker 06: Earlier, and the page is immediately preceding that, we discussed, we've looked at all the studies, [00:20:59] Speaker 06: And there could be benefits. [00:21:01] Speaker 07: The Fowler-Ridge study showed a statistical difference. [00:21:04] Speaker 06: Yes, but the Arnett study showed no statistical difference. [00:21:08] Speaker 06: And the Arnett study, and this is in the record. [00:21:10] Speaker 07: Maybe you should have done the study to figure out. [00:21:13] Speaker 06: Well, I mean, actually, that's the great thing about this project is we're using adaptive management to figure out what works for this facility. [00:21:20] Speaker 06: Because if there's one thing that has been shown through all the studies is different facilities are different. [00:21:25] Speaker 06: And here we start with the proposal. [00:21:28] Speaker 06: But if we get more take than we're expecting, there are a number of trigger points. [00:21:32] Speaker 06: They're actually quite low. [00:21:33] Speaker 06: then they have to increase speeds, always. [00:21:36] Speaker 07: Including 6.5, which shows that 6.5 is a viable option, and there's scientific evidence that you're aware of that it reduced the amount of takes. [00:21:45] Speaker 07: So why wouldn't that be the obvious thing to consider in your NEPA analysis, as opposed to the shutdown alternative that was never viable to begin with? [00:21:55] Speaker 06: Well, I think, first, the shutdown alternative is easy now to say it wasn't viable. [00:21:59] Speaker 07: Who said it wasn't viable in 2010? [00:22:01] Speaker 06: One person expressed that viewpoint, and you're looking at emails that have no basis. [00:22:06] Speaker 06: Now we have an actual. [00:22:07] Speaker 07: I got Mary and Megan both saying, one says it's not economically viable, and the other one says it's not really an alternative. [00:22:12] Speaker 06: And then you have the benefit to taking a prop prep. [00:22:16] Speaker 06: First, if we hadn't done it, we would definitely face a challenge today for not considering an alternative that had tried to minimize, to avoid all impact. [00:22:25] Speaker 06: Second, no. [00:22:26] Speaker 07: Well, you're not limited to three. [00:22:27] Speaker 07: You could have done four. [00:22:28] Speaker 07: I mean, there's been, I don't know why you think that you could only do one or the other, given that there were serious questions at a bare minimum about whether the shutdown alternative was ever going to be viable. [00:22:41] Speaker 07: And in fact, you said, we know that. [00:22:42] Speaker 07: We just wanted there for a comparison point, as I read your explanation. [00:22:45] Speaker 06: It was a valuable comparison point. [00:22:46] Speaker 07: Maybe a valuable comparison point. [00:22:48] Speaker 07: It doesn't mean it's also, that it is the limit of the reasonable range of options, does it? [00:22:52] Speaker 06: No, so if we're talking about the NEPA claim, it's crucial here to look at, first, their alternative, the one they put all their eggs in the basket now, is 6.5 meters per second year round. [00:23:04] Speaker 06: That makes no sense, because the Indiana bat is in the ground for five months out of the year. [00:23:08] Speaker 06: So the very option they're proposing doesn't make any sense. [00:23:12] Speaker 07: OK, what about the Buckeye alternative, but summon 6.5 instead of 6? [00:23:18] Speaker 06: And so we take Buckeye's application. [00:23:19] Speaker 07: That seems exactly what NEPA would be. [00:23:23] Speaker 07: You'd want to test under NEPA. [00:23:24] Speaker 07: You're not tied so rigidly to what they propose. [00:23:27] Speaker 07: But you've got a number here. [00:23:28] Speaker 07: Studies have found that it makes a big difference. [00:23:30] Speaker 07: That's your goal. [00:23:31] Speaker 06: Studies have not shown that, Your Honor. [00:23:33] Speaker 07: Well, you said that your comments said the Fowler ones found a statistical difference. [00:23:38] Speaker 06: A statistically significant difference is not a big difference per se. [00:23:42] Speaker 07: A relevant difference, a material difference. [00:23:44] Speaker 06: A difference between 68% reduction and others. [00:23:47] Speaker 06: The later Fowler study showed that with 5.5 meters per second, you're up to 73% reduction. [00:23:53] Speaker 06: And then the Fowler study we're referring to gets to 80%. [00:23:55] Speaker 06: So you're talking about the difference between 73% and 80% when you've already reduced the number of bats taken per year to five. [00:24:03] Speaker 06: out of a population of 305,000. [00:24:05] Speaker 06: That's the Midwest Recovery Unit alone. [00:24:07] Speaker 07: Well, I said you're hoping it's five. [00:24:09] Speaker 06: We're hoping it's five. [00:24:10] Speaker 06: And if it's not, they have to raise the speeds. [00:24:13] Speaker 05: I mean, this is a, I mean, if this is not- Can I ask one technical question about this? [00:24:17] Speaker 05: So the delta is between 68% and some higher figure 70. [00:24:23] Speaker 05: 378 or 88. [00:24:23] Speaker 05: I don't know which exactly one we're looking at. [00:24:27] Speaker 05: But even with respect to those, do we know that it's 68% to 78% or is there confidence intervals that kick in and tell us that there's some degree of possibility or likelihood wherever you're on the spectrum that you could have that difference? [00:24:41] Speaker 06: There are confidence intervals, but there's also, there are studies that show with five meters per second, you get up to 82%. [00:24:46] Speaker 06: They present it as though it's always the case that the study shows 6.5 is better, but that is definitely not the case. [00:24:54] Speaker 06: There are numerous studies that find no difference, and some studies find that with five meters per second, you get all the way up to 80% reduction. [00:25:01] Speaker 06: So, I mean, to say that the agency- Were there studies that you credited? [00:25:05] Speaker 07: Sorry? [00:25:06] Speaker 07: Were there studies that you credited? [00:25:07] Speaker 06: Yes, I mean, they say that we didn't credit it because we acknowledge one potential weakness in the study. [00:25:14] Speaker 06: But yes, we did credit it. [00:25:15] Speaker 06: It's in the EIS. [00:25:16] Speaker 06: And we don't think that it doesn't prove [00:25:20] Speaker 06: that five is always as good as 6.5. [00:25:23] Speaker 06: But in just the same way, the other studies don't prove that 6.5 is always better than five. [00:25:27] Speaker 06: Does that make sense? [00:25:29] Speaker 06: This is an area of scientific uncertainty. [00:25:31] Speaker 06: And the whole point of the adaptive management plan is to address that uncertainty. [00:25:35] Speaker 06: And I think it's really a mistake to look at this and get down to, well, you could have done marginally this and overlook all the various efforts that went into minimization going in. [00:25:44] Speaker 05: So I think one question is that what you've articulated now [00:25:49] Speaker 05: perhaps sounds plausible if it were the agency determination that we were reviewing. [00:25:56] Speaker 05: So if the analysis itself had proceeded along this way and said, you know, one might think that we ought to consider a 6.5 instead, but here's the problems with considering a 6.5. [00:26:05] Speaker 05: If you look at it, actually not even clear that it's better, and even if you look at it, the studies that say that it's better, it's not clear that it's actually that much better, that makes any sense, but that's not in the [00:26:13] Speaker 06: Oh, it's in the response to comments. [00:26:15] Speaker 06: I mean, not in the layman's term. [00:26:17] Speaker 06: I mean, one thing is these things are written by biologists. [00:26:20] Speaker 06: But if you look at the response to comments, the response to comments say, you know, some studies have shown better, some have shown not. [00:26:25] Speaker 06: When they say it could have benefits, that is a very, could is a very well-chosen word, right? [00:26:31] Speaker 06: It could. [00:26:32] Speaker 06: Not at all, for example, like this case in Gerber, where you have an applicant that says, this would greatly reduce take. [00:26:38] Speaker 06: There was no disagreement that this would reduce take, that that would reduce take. [00:26:42] Speaker 06: Here, the most, the agency scientists who are, if anything, tend to be very favorable to the species, right, tend to be very invested in the species, which is a good thing. [00:26:50] Speaker 06: The most they can say is, this could have benefits, but we've already reduced it to the point where there's no impact at any population level, the maternity colony level, the local maternity colony level, the wintering population level. [00:27:02] Speaker 06: So at that point, does it make sense to force them to do something that is at least three times as expensive? [00:27:07] Speaker 06: That was confirmed by the Arnett study. [00:27:09] Speaker 06: The Arnett study gives an example of that. [00:27:12] Speaker 06: And where they've proven it's much more expensive, is that a sound enough basis to say, we reject your application? [00:27:17] Speaker 02: Wait, just so I understand, what are you saying that the Arnett study proved? [00:27:22] Speaker 06: One thing the Arnett study proved, and this is in the Joint Appendix at 11113. [00:27:30] Speaker 06: It said, changing from 5 meters per second to 6.5 meters per second loses you power at three times, you lose three times as much power. [00:27:40] Speaker 06: And we don't find a statistically significant difference in bats. [00:27:43] Speaker 06: that there is a difference. [00:27:51] Speaker 06: That's the statistical problem is that there aren't that many windy nights between five and 6.5. [00:27:56] Speaker 06: We don't control the weather. [00:27:57] Speaker 06: But even then, we could find that there was three times as much cost. [00:28:01] Speaker 06: power loss by doing that. [00:28:03] Speaker 06: Now, I don't want to suggest that one facility can be taken and just put on this facility. [00:28:08] Speaker 06: I mean, you can't do that. [00:28:10] Speaker 06: They're all different. [00:28:11] Speaker 06: They're all in different locations. [00:28:12] Speaker 06: The bats act differently. [00:28:15] Speaker 06: But there's no question that the 6.5 would be significantly more expensive. [00:28:21] Speaker 06: And there's significant doubt about how much advantage it has. [00:28:24] Speaker 06: And so the question for the agency was, would it be reasonable to reject this application? [00:28:28] Speaker 06: that has done a lot to minimize and mitigate to the maximum extent practicable. [00:28:33] Speaker 06: And then the question for this court is, was the agency's finding that they had met their burden arbitrary and capricious? [00:28:37] Speaker 05: Where's the best place that the agency talked about the significant doubt about the benefits afforded by 6.5? [00:28:43] Speaker 06: I think the response to comments, and that is, and I apologize for not having the site. [00:28:48] Speaker 05: Is that the 1050s? [00:28:52] Speaker 06: That's some of it, and then a little bit right before 567. [00:28:55] Speaker 06: So there's two different responses to comments, both in the EIS and to the record of decision. [00:29:01] Speaker 06: And there the agency did. [00:29:02] Speaker 06: I mean, at the same time, we don't want to suggest we don't value [00:29:07] Speaker 06: I mean, the agency was making a judgment call based on the best science it could, and it just didn't know precisely what the advantage of this was. [00:29:16] Speaker 06: And you've already reduced it to no significant effect at any population level. [00:29:22] Speaker 06: This wind power project came in and made serious efforts to do the best possible job to protect the species. [00:29:29] Speaker 06: And if this isn't going to be enough, there's a real concern. [00:29:32] Speaker 06: I mean, how hard is it going to be for, no matter how much a wind power project is willing to do to preserve a species? [00:29:39] Speaker 02: Are you saying that under NEPA, if an agency believes that the impact is not significant, [00:29:50] Speaker 02: then it has no obligation to study a reasonable alternative that would potentially minimize the impact. [00:30:01] Speaker 06: I wouldn't say that precisely, Your Honor. [00:30:04] Speaker 06: What I would say is that alternatives that are sufficiently similar, you don't have to analyze each one. [00:30:10] Speaker 06: And if you take this issue, the 6.5 versus 6 versus 5.5, out of just the con... First, we've already reviewed all the mortality data. [00:30:18] Speaker 06: Aside from mortality, they are basically the same. [00:30:22] Speaker 06: And one benefit to the maximally restricted is you see how similar everything is in every other respect. [00:30:29] Speaker 06: There's not an added advantage if it's significantly similar. [00:30:34] Speaker 06: And in the agency's view, these are pretty significantly similar. [00:30:37] Speaker 06: I mean, sure, you can always go in and say, well, this is really different. [00:30:41] Speaker 06: solid mortality data, we reviewed it all already on that difference, on the 5.756 versus 6.5, and then in every other respect they're the same, then you don't have to do another alternative. [00:30:53] Speaker 06: That's Westlands, which is really crucial because there are a lot of projects where there literally are an infinite number of combinations. [00:30:58] Speaker 07: Where in the record does it say these are all significantly similar? [00:31:02] Speaker 06: So what it is, Your Honor, is if you read through the EIS, which I would recommend, it's great, the maximally restricted alternative and you compare it to the proposed alternative? [00:31:14] Speaker 07: Well, if we're asking what the upfront question is of what you should have compared in the EIS, telling me the after the fact EIS sounds really good just begs the question of whether [00:31:24] Speaker 07: a materially different outcome would have resulted had you added a fourth option to your environmental impact statement. [00:31:31] Speaker 07: Maybe I'm assertive, I thought you were saying we decided not to put that fourth option in because we decided between 5.756 and 6.5, no significant difference or significant similarities in fatalities. [00:31:46] Speaker 06: So that's the ESA issue. [00:31:48] Speaker 06: For the NEPA issue, what I mean is if your concern is are these really different, one benefit is if you look at the impacts of maximally restricted and the proposed, and those are about this far apart in terms of cutting speed, what we're talking about now is right around here. [00:32:05] Speaker 06: These are on most environmental resources. [00:32:07] Speaker 07: Well, I think that's a problem. [00:32:08] Speaker 07: For your NEPA analysis, you're not supposed to sort of go to the two extremes and then throw the companies in the middle and say we've done a reasoned analysis. [00:32:16] Speaker 06: I think that often you do want to have extremes in there. [00:32:19] Speaker 07: You may want to have the extremes, but shouldn't you have a reasonable range of alternatives, something other than total extremes, neither of which anyone goes in thinking are really going to be viable at the end of the day? [00:32:29] Speaker 06: I think that there's no minimum number of alternatives, and you can always layer in extras. [00:32:35] Speaker 06: The question under NEPA is did you- You can make very well. [00:32:38] Speaker 07: The question is whether it's a reasonable range to include the two extremes and the companies and nothing else. [00:32:44] Speaker 06: Did it let you take a hard look at the environmental consequences of your action? [00:32:49] Speaker 07: Exactly. [00:32:49] Speaker 06: And yes, this did. [00:32:50] Speaker 06: And there is no difference between theirs. [00:32:53] Speaker 06: If you look at the various consequences, you can't find a place where the slight difference they're talking about would have had different environmental consequences if you compare the maximally restricted and the proposal. [00:33:04] Speaker 06: And they're almost always the same. [00:33:06] Speaker 06: This extra alternative would have been basic, with respect to everything but bad mortality. [00:33:12] Speaker 06: Neep is about looking at everything. [00:33:13] Speaker 07: Everything but bad mortality, my goodness. [00:33:16] Speaker 07: That's what this is about. [00:33:17] Speaker 06: The other thing is that the study, the service was very clear that it did not think, it could say, this is the amount of reduction you get with 6.5. [00:33:27] Speaker 06: This is the amount you get with 5.75. [00:33:29] Speaker 06: The science just isn't there yet. [00:33:31] Speaker 06: It just isn't. [00:33:32] Speaker 07: For purposes of NEPA, you couldn't do a NEPA analysis. [00:33:36] Speaker 07: Because you had a lot of people in the agency saying concerns about how very minimal this EIS was going to be with only these three options. [00:33:46] Speaker 07: And talking about 6.5 and proposing 6.5 and saying the no action one. [00:33:52] Speaker 06: Sorry, but it counts. [00:33:55] Speaker 07: Not for my purposes, on the reasonable range of alternatives. [00:33:57] Speaker 07: I know you have to put that in there, that's fine. [00:33:59] Speaker 07: For this reasonable range of alternatives, if it's not really an alternative. [00:34:04] Speaker 06: I think that it's very, I guess I just don't think that the restricted use alternative was not really one. [00:34:12] Speaker 06: We did the analysis and discovered that it was massively more expensive. [00:34:16] Speaker 06: If we hadn't done that analysis, they would have said, well, how do you know it's massively more expensive? [00:34:21] Speaker 06: We got numbers, $241 million in lost revenue. [00:34:24] Speaker 07: Agency people. [00:34:26] Speaker 07: You had the advisor, and then you had agency people saying it's not economically viable in 2010. [00:34:32] Speaker 07: Doesn't that mean maybe someone else disagreed? [00:34:35] Speaker 07: I'm asking you to show me that. [00:34:36] Speaker 07: But doesn't that mean you maybe need to throw in another option? [00:34:41] Speaker 06: I'm not aware of any precedent that supports the position that you have to throw in yet another. [00:34:46] Speaker 07: Is there any precedent that says picking things at the extreme? [00:34:49] Speaker 07: maximally and minimally, and then the company's option is sufficient, what case says that? [00:34:56] Speaker 07: As a reasonable range. [00:34:57] Speaker 06: There's a lot of cases that say that when you get an application, you're allowed to give a lot of weight to the applicant's desire. [00:35:03] Speaker 07: I'm not disputing that. [00:35:04] Speaker 07: That definitely needs to be in there as one of the options. [00:35:06] Speaker 07: And boy, you sure make it look good if you go to the extremes, and those are the only other options you consider are the most extreme ones on the other end, apart from no action. [00:35:15] Speaker 06: But also just remember, right, the difference in bat impact between the extreme is zero to this, which is five, to minimal is 12. [00:35:23] Speaker 06: These aren't huge differences, even at these extremes. [00:35:26] Speaker 07: Well, if you're talking about an endangered species. [00:35:29] Speaker 06: I mean, but of 305. [00:35:29] Speaker 07: Endangered species, you're talking year by year and year after year. [00:35:34] Speaker 07: That's a problem. [00:35:35] Speaker 07: And as you both know, as you well know going in, these are guesses. [00:35:38] Speaker 07: That's why you have the whole adaptive management there as a backup, which certainly indicates that 6.5 is completely economically viable. [00:35:46] Speaker 07: The adaptive management plan says you're going to have to go to 6.5 if you're killing more than five bats a year, correct? [00:35:53] Speaker 06: It does say that. [00:35:53] Speaker 07: So it's certainly an economically viable option. [00:35:55] Speaker 06: Well, not year round. [00:35:56] Speaker 06: I mean, their option was not economically viable. [00:35:59] Speaker 06: Their option is not. [00:36:00] Speaker 06: I mean, their option, this is part of what's weird. [00:36:03] Speaker 06: The option they're saying we should have considered was clearly not well designed because it involves doing. [00:36:07] Speaker 07: What about the Fish and Wildlife Service option on J96 where someone in Fish and Wildlife Service is recommending 6.5? [00:36:16] Speaker 06: I mean, sometimes we could have done 6.5. [00:36:20] Speaker 06: I just don't think you have to do each marginal improvement. [00:36:24] Speaker 07: That may very well be. [00:36:25] Speaker 07: The question is whether you need to test the company's proposal with something other than the extremes at either end, which you have labeled maximally and minimally. [00:36:35] Speaker 06: I guess the downside, Your Honor, and I apologize for going so far over, is that I think that you can always say if you just a little increment more, it's going to be fine. [00:36:46] Speaker 06: A little increment more, it's going to be fine. [00:36:48] Speaker 06: And they also submitted a proposal saying, do 7 meters per second. [00:36:51] Speaker 06: Do 6.7 meters per second. [00:36:53] Speaker 06: Do 6.5 during these seasons and not these seasons. [00:36:57] Speaker 07: I don't know, but you would be able to say, look, we tried some. [00:37:00] Speaker 07: We got the bookends here with maximal, minimal statute of requirement of no action. [00:37:07] Speaker 07: And then we tested it against another viable alternative. [00:37:09] Speaker 07: We don't have to do it against every other viable alternative, but we actually tested it against another viable alternative that had been proposed. [00:37:16] Speaker 07: And here is our conclusion. [00:37:17] Speaker 07: But without that, you're really missing [00:37:21] Speaker 07: I think any real heart to the analysis really pushing and analyzing the consequences of the line the company's proposed. [00:37:28] Speaker 06: I guess the reason I don't see a problem is I don't see any way in which we fail to take a hard look at the environmental consequences. [00:37:34] Speaker 06: All of them are laid out in the EIS. [00:37:36] Speaker 06: They're all depicted for the public. [00:37:37] Speaker 02: But we held, or I don't know if it's correct to say it's a holding, but it's correct to say that we said it very clearly in the Theodore Roosevelt case [00:37:51] Speaker 02: quoting the CFR that the range of reasonable alternatives must include technically and economically practical or feasible alternatives in describing what the NEPA obligations are. [00:38:07] Speaker 02: That language is in the appellant's brief. [00:38:10] Speaker 02: I notice that it's absent in your brief anywhere, because you just want us to say, was there a hard look [00:38:21] Speaker 02: and conclude that there was a hard look and just kind of ignore this apparently. [00:38:28] Speaker 02: I mean, what am I to do with Theodore Roosevelt in this regulation? [00:38:33] Speaker 06: I think that it is true. [00:38:35] Speaker 06: So we often, I have never heard of a court saying you should get in trouble for looking at something that turned out not to work out. [00:38:43] Speaker 06: And that would put the agency in an impossible bind. [00:38:47] Speaker 06: We are regularly being chastised for not looking at things [00:38:50] Speaker 06: which turn out, you know, because we think they won't work. [00:38:55] Speaker 07: With respect, I don't think that's the question. [00:38:57] Speaker 07: No one's saying you couldn't have included the extremes in there. [00:39:00] Speaker 06: I understand that, but to the extent that, but one thing is you knock off this to try to be like, oh, well, this whole part of the analysis doesn't count. [00:39:07] Speaker 06: And that's just strange to me because it's all still depicted for the public. [00:39:11] Speaker 06: It's all still analyzed. [00:39:13] Speaker 06: And so I guess this is turning NEPA into getting away from the whole point of NEPA, which is to look at the environmental consequences, not to look at every single possible option. [00:39:24] Speaker 06: My understanding of NEPA is it's about looking at what the environmental consequences are. [00:39:30] Speaker 06: It's not so much about every single possible option needs to be depicted. [00:39:35] Speaker 02: I didn't say that. [00:39:36] Speaker 02: I read to you a regulation promulgated by the government that you're representing. [00:39:43] Speaker 02: that says the range of reasonable alternatives must include technically and economically practical or feasible alternatives. [00:39:53] Speaker 02: That's what we said, this court said, that we're all bound by, and it's quoting in part a regulation that describes how NEPA is supposed to work. [00:40:06] Speaker 02: So how am I supposed to apply that language and that regulation to this case? [00:40:11] Speaker 06: I would submit that we looked at alternatives that met those requirements. [00:40:18] Speaker 06: That regulation has been interpreted by CEQ to acknowledge that you can't look at every, like all the alternatives that possibly meet it. [00:40:25] Speaker 06: And the general rule is if alternatives are sufficiently similar, you don't have to break them out because you can always do it infinitely far. [00:40:34] Speaker 06: And that is, I mean, what's wild here is how not different their proposal is from the proposed alternative, except for it's not nuanced and it's not careful, and it includes the winter. [00:40:45] Speaker 06: And it's just wild to say, well, you had to look at that too. [00:40:50] Speaker 06: In all other respects, it's the same. [00:40:52] Speaker 06: All other respects, it is the same as the alternative you looked at. [00:40:56] Speaker 02: You're setting up the straw man, it seems to me, in that you're saying that [00:41:02] Speaker 02: What we're supposed to do is to see whether it was reasonable for the agency or whether the agency should have studied the alternative that one commenter, these particular plaintiffs, put forth. [00:41:20] Speaker 02: That's not the standard. [00:41:22] Speaker 06: That's true, Your Honor. [00:41:23] Speaker 02: I think the other dilemma here... So why, why, why isn't it, why, why wouldn't [00:41:32] Speaker 02: to say, well, to the extent that, you know, during the seasons where the bats are active, the cut-in rate, what would the difference be? [00:41:44] Speaker 02: And let's let the public know and let's let Congress know and let's look at ourselves [00:41:49] Speaker 02: what the difference would be if the cut-in rate, the maximum cut-in rate was 6.5 or 7 or 6.75 or pick a number. [00:41:59] Speaker 06: So why not just one more slightly more rigorous alternative than the applicants? [00:42:04] Speaker 06: Yes. [00:42:06] Speaker 07: How about one more viable alternative than the applicants? [00:42:12] Speaker 06: I mean, I think that [00:42:15] Speaker 06: I mean, we're just in disagreement about the value of looking at other things and looking at the full scope. [00:42:21] Speaker 06: I mean, if I were in here defending without the extremes, I would be in a lot more trouble because there would actually be precedent on the other side. [00:42:29] Speaker 06: But I do think that [00:42:31] Speaker 06: I do think the problem is you just keep getting marginally a little further. [00:42:36] Speaker 07: I know, just to be clear, as you said, you're happy to have the extremes here, because if you had no action and just theirs, you'd be in trouble. [00:42:43] Speaker 07: But to be clear, you're agreeing, those are the extremes. [00:42:46] Speaker 07: And other than the extremes, you didn't have anything other than the proposal from the company. [00:42:51] Speaker 06: I mean, we had four alternatives. [00:42:54] Speaker 07: You're not suggesting that no action was your other viable alternative, right? [00:42:59] Speaker 06: Sorry, it's part of, I'm, we have to. [00:43:02] Speaker 07: I was including that in the extremes, I'm sorry. [00:43:04] Speaker 06: Sorry, three, three. [00:43:05] Speaker 06: With three options, we didn't break out, I mean, if project designs had to be this specific and each and every one of them carried through the action alternative where you're breaking out just marginal differences, I think the sizes of EISs would get massive. [00:43:22] Speaker 06: The differences would be completely swamped. [00:43:24] Speaker 06: There is no difference that we can say scientifically between these two. [00:43:29] Speaker 06: So we have yet another alternative that we'd say, we don't know if it's any different. [00:43:32] Speaker 06: And in all other respects, it's the same. [00:43:34] Speaker 06: I don't think that is helpful for the purpose of NEPA, which is to clearly define the issues and help make an informed choice and look at the hard impacts. [00:43:43] Speaker 06: But I've exceeded my time, so I apologize. [00:43:46] Speaker 06: Thank you. [00:43:58] Speaker 01: May it please the court, Paul Weiland for the intervener appellee, Buckeye Wind. [00:44:03] Speaker 01: I'd like to just take a little bit of a step back and start with the fact that my client is absolutely committed to responsible development of clean energy, and this is a pressing issue for this country and humanity. [00:44:16] Speaker 01: Buckeye has spent years, over a decade in fact, and millions of dollars analyzing the potential impact of this project, securing permits for the project in order to construct and operate it. [00:44:30] Speaker 01: Also, federal appellees point out in their brief that there are acoustic studies in the record that demonstrate that 99.9% of Indiana bats never fly to the height of the turbines. [00:44:41] Speaker 01: So with respect to minimization, we're starting with an automatic minimization measure there because of the technology that's being employed. [00:44:50] Speaker 01: In addition, siting decisions and other steps were taken in order to minimize the effects on a species. [00:44:58] Speaker 01: As a consequence, the potential for bat collisions is very low. [00:45:03] Speaker 01: To further reduce this, we've used a combination of feathering, cutting speeds, and the adaptive management program that my co-counsel mentioned, which we believe go to great lengths in order to protect the bat. [00:45:17] Speaker 01: There's extensive discussion here about the potential for reductions as a consequence of increasing the cut in speed marginally more. [00:45:26] Speaker 01: But when we're talking about five bats a year and a population that in fact actually of the species well exceeds 400,000, we're talking about maybe a bat a year. [00:45:37] Speaker 01: And there is, as you have heard, uncertainty about the statistics. [00:45:41] Speaker 01: I'm sorry. [00:45:42] Speaker 07: I didn't understand what you said. [00:45:42] Speaker 07: I thought it was five bats a year, and now you're saying it's one bat a year? [00:45:46] Speaker 01: Did I misunderstand what you said? [00:45:48] Speaker 01: The incremental difference is very small. [00:45:50] Speaker 01: I'm sorry. [00:45:50] Speaker 01: Go ahead. [00:45:53] Speaker 01: So from my perspective, this could really only be regarded as negligible. [00:45:59] Speaker 01: I'd like to just mention two other things with respect to the NEPA and ESA claims. [00:46:04] Speaker 01: First, I'll start with the ESA claim. [00:46:06] Speaker 01: I think you've got to start with the text of the statute. [00:46:10] Speaker 01: And to an extent, the sequencing issue, my co-counsel, the opposing council mentioned, as they have done in their brief, they focused on minimization. [00:46:20] Speaker 01: The idea that minimization and mitigation are separate [00:46:24] Speaker 01: is not the way the text of the statute reads. [00:46:26] Speaker 01: And that's for good reason. [00:46:28] Speaker 01: First of all, it's what Congress said. [00:46:30] Speaker 01: And so that should really be the end of the matter. [00:46:32] Speaker 01: But the point made by Judge Millett actually makes the point very well. [00:46:36] Speaker 01: There are circumstances where mitigation may be superior to minimization. [00:46:41] Speaker 01: Congress wrote something that is biologically intelligent almost five decades ago, four decades ago. [00:46:48] Speaker 01: So I think both the text and the science support that interpretation of the act. [00:46:54] Speaker 01: With regard to the NEPA issue, I would say one advantage of using alternatives that are bookends that are at either side of the spectrum is that that then allows the agency, and the agencies have done this before in many, many cases, to pick anything between those alternatives. [00:47:15] Speaker 01: The agency isn't [00:47:16] Speaker 01: limited to just those three alternatives. [00:47:19] Speaker 01: If it decides on the basis of review of those that it wants to pick something in between, the agency can and does do so. [00:47:26] Speaker 01: And I would also say with respect to the issue of viability, that I think that a full review of the record will show that my client was saying from the beginning that this was not viable, but that the service was testing this. [00:47:40] Speaker 01: The fact that there are emails where shorthand was used about viability, followed by another email or handwritten note where it's made into a question, just shows that [00:47:50] Speaker 01: Yes, my client has maintained this all along, and it was borne out at the end. [00:47:55] Speaker 01: But it also shows that the service decided to test the issue. [00:47:58] Speaker 01: And if the service didn't, it would be irresponsible. [00:48:01] Speaker 01: My client could well have maintained that 6.5 or 6.0 was non-viable, too. [00:48:06] Speaker 01: And if the solution to that is we don't study it, that would be improper from my perspective. [00:48:12] Speaker 01: With that, I'll thank the board. [00:48:14] Speaker 01: Thank you. [00:48:15] Speaker 07: Do you agree with his description as to the status of the project? [00:48:18] Speaker 01: Yes, the project, there's no on the ground activity going on right now. [00:48:23] Speaker 01: The hope is to resolve this issue and an issue pending in the state as well and then to move forward. [00:48:31] Speaker 01: Thank you. [00:48:33] Speaker 05: Mr. Weeks, I think you're out of time. [00:48:34] Speaker 05: We'll give you three minutes to start with. [00:48:38] Speaker 03: First, with respect to the issues of significance of difference, there are several cases. [00:48:47] Speaker 03: of this district court in [00:48:50] Speaker 03: 1991, Sierra Club versus Evans, the court indicated that in response to an argument that the risk wasn't significantly different, the court said a little impact doesn't equal no impact. [00:49:00] Speaker 03: Similarly, in southern Utah Wilderness versus Norton, this district court in this circuit said the fact that a preferred plan reduces impact to insignificance does not mean that less harmful alternatives need not be considered with respect to your point. [00:49:15] Speaker 03: And on yours, Judge Berlett. [00:49:16] Speaker 07: Are you agreeing that it's an insignificant difference between the two? [00:49:21] Speaker 03: Well, that is exactly the next point that I want to make. [00:49:25] Speaker 03: Let's talk about the Gerber case for a second. [00:49:27] Speaker 03: The briefs in the Gerber case. [00:49:28] Speaker 07: Would you rather just talk about the record in this case? [00:49:32] Speaker 03: Well, let me then start there. [00:49:36] Speaker 03: What we're talking about in terms of difference, if our math is correct, by the way, let me do away with the proposition that we're saying 6.5 year round. [00:49:44] Speaker 03: Of course we're not saying 6.5 year round. [00:49:46] Speaker 03: We know the bats hibernate during the winter. [00:49:48] Speaker 03: There'd be no point in setting 6.5 cut into. [00:49:51] Speaker 03: we were talking about is restricting cutting speed during the summer. [00:50:00] Speaker 03: But if our calculations are right, the difference between the 6.5 predicted performance at 80% or 79.7% is the difference between the 6.5 predicted performance at 80% or 79.7%. [00:50:08] Speaker 03: 79 point something percent reduction in speed. [00:50:11] Speaker 03: And the chosen alternative is 50 bats over the course of this project. [00:50:16] Speaker 03: So the government is in the position of saying, it doesn't matter that we kill 50. [00:50:20] Speaker 03: It doesn't matter that there's an alternative that's going to kill 50 less bats, endangered bats, over the course of this proceeding. [00:50:27] Speaker 03: In the Gerber case, we're talking about one fox squirrel every three years with the alternative that they chose. [00:50:34] Speaker 03: And the court said no, if there's an alternative that would result in a reduced impact. [00:50:40] Speaker 03: lower than one fox squirrel every three years, you must consider its practicability. [00:50:45] Speaker 04: Can I just, the 50 bats, just walk me through how you got to 50 per year? [00:50:51] Speaker 03: Applying the 80% reduction to the 400 bats that would be considered with no measures and the 68% reduction to that same overall figure. [00:51:04] Speaker 05: So the delta between 68% and the other percent over the life of the project. [00:51:08] Speaker 03: Right. [00:51:09] Speaker 03: Over the life of the project. [00:51:10] Speaker 03: And to us, that's not a matter of insecurity. [00:51:13] Speaker 02: So are you saying that under NEPA, [00:51:16] Speaker 02: not endangered bats are irrelevant? [00:51:20] Speaker 03: Not at all. [00:51:21] Speaker 03: In fact, that's one of the reasons that this alternative needed to be considered quite apart from the requirements of the Endangered Species Act, which are clear in terms of minimization. [00:51:31] Speaker 03: And in fact, the Fish and Wildlife Service in the 2011 bat guidance came to the same conclusion, minimize first. [00:51:37] Speaker 03: wildlife as an impact under the National Environmental Policy Act counts separate from endangered species. [00:51:42] Speaker 03: And we're talking about 32,000 bats over the course of the life of this project that are likely to be killed with the current measure and many, many thousands fewer with a reduced impact. [00:51:54] Speaker 07: And what is the difference between 32,000 under theirs and how many under yours? [00:51:59] Speaker 03: I didn't do the math. [00:52:02] Speaker 03: I'm sorry. [00:52:06] Speaker 05: Thank you.