[00:00:04] Speaker 00:
Western Organization of Resource Councils at ELL Appellates versus Ryan Zinke and his capacity as Secretary of the Interior at ELL.

[00:00:14] Speaker 00:
Mr. Citrin for the Appellates, Mr. Gray for the Appellees, and Mr. Robinson for the Intervener.

[00:00:29] Speaker 01:
May please the court.

[00:00:31] Speaker 01:
NEPA makes clear that at some point the BLM must account for the cumulative contributions of the entire federal coal management program to global warming and consider programmatic alternatives as part of that accounting.

[00:00:43] Speaker 01:
But to date, BLM has dodged that duty with a shell game

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that waffles between two contradictory positions.

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When plaintiffs challenge individual lease EISs, as in Wild Earth Guardians, BLM argues successfully in this court that it does not have to consider programmatic alternatives as part of that challenge, because the no action alternative is just canceling that one lease and there's no way to connect just one small lease to a phenomenon like climate change.

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But when we challenge the failure to update the program EIS, where the agency called for climate change research in 1979,

[00:01:15] Speaker 01:
and promised an update, the agency says we should be challenging an individual lease.

[00:01:20] Speaker 01:
The court should ensure that BLM's NEPA obligations are not in this way indefinitely deferred.

[00:01:26] Speaker 02:
Now on the first half of that proposition, so that's the Wild Earth decision you're relying on?

[00:01:31] Speaker 02:
That's right.

[00:01:31] Speaker 02:
But in your reply brief, you went to some length to explain why Wild Earth didn't foreclose a programmatic challenge.

[00:01:39] Speaker 01:
I don't think that the court in Wild Earth Guardians held that a programmatic challenge wouldn't prevail, but I will say BLM took the position in Wild Earth Guardians that it has no obligation in individual leases to account for program level

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alternatives, program level effects, cumulative effects, particularly on this analysis of alternatives because they say the baseline position is all the emissions that would happen anyway and then just analyze the contribution of this lease.

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And I'll just point the court to where in their brief they took this position.

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And that was in the brief before us or in the brief?

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Yes, that's right.

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The brief before this Court says, page 28, the status quo here for purposes of climate change is the total coal production and coal demand projected in the absence of this West Antelope II lease.

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That's the baseline BLM used in its ROD.

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And it's therefore unnecessary for BLM to calculate the precise greenhouse gas emissions that would result from burning West Antelope coal or to estimate specific climatological effects because the record indicated that its leasing decision would have little influence on those environmental impacts.

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So the agency's position on what it does in the individual lease EISs

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It's perfectly clear and it is not what we are asking for here and what NEPA requires, which is some program level consideration of the cumulative impacts from the entire coal management program.

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And I think most importantly, some consideration of program level alternatives.

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of the kind that the agency itself proposed to study when Secretary Jewell issued her moratorium and began the process of undertaking a PEIS.

[00:03:14] Speaker 02:
So that language might be open to some interpretation, but let's just assume that it's properly interpreted in the way that you do, the language in the brief.

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But I take it that you don't take the position that Wild Earth treated with that aspect of the arguments put forward by BLM and foreclosed

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somebody from arguing in a future case involving a site-specific application and approval that the kind of analysis that you think needs to be conducted now as a kind of omnibus global challenge is better raised in connection with a site-specific one?

[00:03:48] Speaker 01:
I think my frank answer is that it's a little bit unclear.

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What happened is in the opening brief in Wild Earth Guardians, the issue was only standing because that was the way that that issue was disposed of.

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The government came back and took this position

[00:04:00] Speaker 01:
The reply brief is a little bit unclear as to what kind of cumulative effects analysis they seem to be arguing for.

[00:04:08] Speaker 01:
And then the court's holding seems to accept the government's argument, but isn't clear about, you know, if your cumulative effects argument was that you had to account for the entire program, that you couldn't do that in the context of an individual EIS.

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I do think that agency's position on that is clear, which is that it's not going to do this.

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in the context of individual leases because it can't be done in the context of individual leases.

[00:04:34] Speaker 01:
We don't think that we had to petition for rulemaking.

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And if we did ask for a particular rule, I think the agency probably would have denied it and then fonzied our request that has found no significant impact because they weren't going to make any changes.

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And it's not like the agency has, in the context of every rule change, seen that there was some triggering obligation to update the program EIS at that point.

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Last, shortly before the administration changed on or had gotten

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honors the Office of Natural Resource, something, recovery, revenue recovery, something like that.

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And it had a rule that was changing the fair market valuation criteria for these leases.

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They did not propose to do an update to the program EIS as part of that rulemaking.

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And in fact, they categorically excluded those kinds of rulemakings from NEPA obligations.

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And so the agency has not taken the position, in fact,

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that making some effort to change the regulations is going to trigger their obligation to update the PEIS.

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Are you saying that in your view the agency takes the position that what you're seeking to get cannot be affected in a rulemaking?

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My understanding is that the agency is not going to update the PEIS to account for climate change, because its view is that it doesn't have the ability to do that.

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But if you put tissue for rulemaking, you prevail on the merits, you could achieve that result.

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I don't think that's right.

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I think what would have to happen is that the agency would have to be considering making a change and then it would determine for purposes of NEPA whether that change had any significant environmental impact.

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And if it's not going to make the change we asked for, it's not going to do a NEPA analysis.

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I don't think we have a gateway where we say, please make this rule change, essentially a random rule change, or please change the rules to prohibit all federal coal leasing.

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And then they would have an obligation to do a fresh NEPA.

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Would the rule request be to effect a change in the existing program?

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We could make such a request, but I don't think that they would have a triggering NEPA obligation.

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I realize this is a question as to whether the agency is going to respond in the way you wish, but at least you'd have a review of their response.

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It's deferential, but you're saying powerfully that climate change is a significant issue.

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They've never accounted for it.

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And the request for rulemaking would be, you've got to account for this in your existing program.

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I don't know how an answer could possibly be, well, we're not considering an individual license at this time, so we're not going to consider.

[00:07:06] Speaker 04:
That's not an answer.

[00:07:08] Speaker 01:
I think I understand your question.

[00:07:11] Speaker 01:
Let me break it into two possibilities so that I make sure I cover your question.

[00:07:14] Speaker 01:
We could have asked the agency, please do this update, essentially filed a petition just to do the update.

[00:07:21] Speaker 01:
That's an exhaustion requirement.

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The agency has an argued exhaustion.

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So we don't have an exhaustion problem here.

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And there's no question about that.

[00:07:29] Speaker 02:
Well, I don't think the question is one of whether this challenge is properly perfected.

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The question is whether you could – and it doesn't even have to be you – whether one could raise a different type of challenge which goes to the agency and says, we think you need to change your program.

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We're petitioning for a rulemaking to change your program.

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And then one of your responses it sounds like to Judge Edwards was, well, the agency is just going to say no.

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And yeah, that may be true, but then that doesn't mean that they're right to say no.

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That gets judicial review.

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And on review, the court would have to make the determination whether it was appropriate to deny the petition for programmatic change that, by hypothesis, has been brought.

[00:08:08] Speaker 01:
Oh, that's for sure right.

[00:08:10] Speaker 01:
You could ask for changes on the merits to the program policy, and you could obtain APA review of the reasonableness of the decision.

[00:08:17] Speaker 01:
What we're not going to get, though, is what we're actually seeking, which is the NEPA analysis.

[00:08:22] Speaker 01:
Because if they don't make a change, if they don't propose to make a change in response to the rulemaking, they will say there's no significant environmental impact.

[00:08:29] Speaker 02:
Sure, but if they were wrong to not make the change, then the change would have to come about, and a necessary adjunct to the change is the NEPA analysis that you're asking for.

[00:08:38] Speaker 01:
Yeah, I think the problem there is that it's going to put the cart before the horse for our purposes.

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I don't think we need to justify or obtain a successful APA review of the failure to make a change before the agency's obligation to do the NEPA analysis is triggered.

[00:08:55] Speaker 02:
That's true if you win in this case.

[00:08:57] Speaker 02:
I think that is your argument in this case with the NEPA analysis, that the program itself is an ongoing one as to which

[00:09:04] Speaker 02:
there has been sufficient new information that would require a new NEPA analysis.

[00:09:08] Speaker 02:
That's your argument in this case, and that's understood.

[00:09:12] Speaker 02:
I thought what Judge Edwards was asking was, it's not as if that argument, by hypothesis, were to be rejected, that there would be no practical resolution at the end of the day, because there's still the practical possibility that a challenge is brought on the merits, and that says, as a programmatic matter, we're petitioning for a change in the program.

[00:09:33] Speaker 02:
and then that would get judicial review.

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The hypothetical denial of that would be get judicial review.

[00:09:38] Speaker 01:
So I think we're all in agreement, but I'm just going to try again to make sure.

[00:09:43] Speaker 01:
I do think that would be susceptible to judicial review, but it wouldn't necessarily create any pathway for a NEPA challenge because the premise question is going to be whether they had some obligation to make a change to the program.

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And absent that, I think they'd have a successful argument that there was no environmental impact from their denial of making a change.

[00:10:06] Speaker 01:
So there was no NEPA obligation.

[00:10:09] Speaker 01:
I think what we're concerned with is the pre-existing obligation under NEPA to account in the course of making decisions like that, whether to institute rulemaking, whether to update the program.

[00:10:20] Speaker 01:
I was reviewing their 2019 budget justifications.

[00:10:23] Speaker 01:
They asked to double the budget for the coal management program to expedite leasing activity.

[00:10:29] Speaker 01:
In the course of making decisions like that, there is the need to

[00:10:32] Speaker 01:
in implementing the program to update the STAIL PEIS analysis so that it can be informed by environmental considerations and programmatic alternatives.

[00:10:42] Speaker 01:
That's what's going to be absent.

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And while we could certainly get a sort of merits challenge,

[00:10:47] Speaker 01:
That's another step removed from where we are right now.

[00:10:51] Speaker 01:
We're just trying to get the agency to account for us, what it thinks the programmatic effects of our coal leasing.

[00:10:57] Speaker 02:
Now, with respect to the channels that you have brought, as opposed to one that you or somebody else might bring, so what's the submission that you have on distinguishing Southern Utah?

[00:11:09] Speaker 02:
In particular, one way to think about it conceptually is that that involved a plan

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A plan sets forth a framework under which implementation is going to occur and subsequent actions are going to occur.

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And this involves a program, and a program establishes a framework under which subsequent actions are going to occur.

[00:11:24] Speaker 02:
Just as adoption of the plan was deemed to be the relevant federal action in southern Utah or SUO, whatever you all in the know call it, in this case, the same thing, adoption of the program is the relevant action.

[00:11:39] Speaker 01:
SUA is not very clear about exactly why it makes this decision, but I think on the one criteria that it does point to, this case is actually its opposite.

[00:11:47] Speaker 01:
The court seemed to be very concerned with the fact that there was a regulation in that case defining the land use plan as the sole major federal action, and so expecting that NEPA review would happen at the time that the plan was issued.

[00:12:00] Speaker 01:
Here the agency told us, in fact, the opposite, that there was going to be an ongoing program

[00:12:05] Speaker 01:
subject to an update requirement for the PEIS that it was issuing when it undertook to issue the regulations in the first instance.

[00:12:13] Speaker 01:
There's a practical reason that that makes sense, which is that land use plans under the forest program and really under almost all other programs are periodically updated.

[00:12:25] Speaker 01:
So you get a land use plan every 10 years or you get a

[00:12:28] Speaker 01:
oil and gas management plan every five years for like the Gulf of Mexico.

[00:12:32] Speaker 01:
And so that creates this punctuated moment at which you'll get a plan level review and then you have individual decisions underneath it.

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It's sort of what like happened in Mayo with the hunting, the 15-year plan.

[00:12:45] Speaker 01:
It's a discrete plan of a certain length

[00:12:48] Speaker 02:
That's by nature true of plans?

[00:12:49] Speaker 02:
Is it finite in duration?

[00:12:51] Speaker 01:
In most circumstances, that is by nature true of the plans.

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It's just set in motion in 1979.

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The agency identifies and acknowledges an obligation to update its program level EIS as conditions change.

[00:13:05] Speaker 02:
Is there just no such thing as a plan that continues in perpetuity until amended in the way that this program does?

[00:13:10] Speaker 01:
Think there might be examples of it.

[00:13:13] Speaker 01:
They're just not familiar Which is why I don't think you see cases like this most cases like it like sua involve these plans with natural punctuated But do you think that if su if another case comes along that involves a plan?

[00:13:24] Speaker 02:
That's more like this program at least with respect to its duration that sua wouldn't apply I think it wouldn't apply in so far as there was continuing action, and I just want to make

[00:13:34] Speaker 01:
One point in that regard, which is that there is a definition of action in the CEQ regulations, and it says, actions include new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, or regulated by federal agencies.

[00:13:52] Speaker 01:
That definition just captures this example.

[00:13:55] Speaker 01:
by its terms.

[00:13:56] Speaker 01:
So you have the opposite situation again from SUA where there was a regulatory definition of the major federal action that was limited to the promulgation of the land use plan.

[00:14:06] Speaker 01:
If I can, I'll reserve the balance of my time for rebuttal.

[00:14:09] Speaker 02:
Sure.

[00:14:10] Speaker 02:
Thank you.

[00:14:24] Speaker 05:
May it please the court.

[00:14:25] Speaker 05:
My name is Michael Gray.

[00:14:26] Speaker 05:
I'm here on behalf of the Department of the Interior.

[00:14:29] Speaker 05:
As a threshold matter, there's a failure here by the plaintiffs to challenge any final agency action.

[00:14:37] Speaker 05:
The claim that they bring is a freestanding NEPA claim where they contend that there's a failure to act that's reviewable under the Administrative Procedure Act because Interior has failed to supplement an EIS that was prepared in 1979, but they do not allege

[00:14:57] Speaker 05:
any substantive challenge to the regulations that that EIS was prepared for?

[00:15:02] Speaker 02:
I have a little trouble understanding why that argument just doesn't collapse into the merits question because

[00:15:08] Speaker 02:
Their argument is that this is a March case, and therefore the action is continuing.

[00:15:13] Speaker 02:
And if the action is continuing, then there is review.

[00:15:16] Speaker 02:
Your argument is that it's not.

[00:15:19] Speaker 02:
But it seems like before we answer the question that you started with, you have to ask, what's the nature of the underlying federal action at issue?

[00:15:28] Speaker 02:
And then that's going to tell us whether it's something that we should review.

[00:15:32] Speaker 05:
I don't think that's particularly right because the complaint, and that might be correct if the complaint here had challenged substantively

[00:15:41] Speaker 05:
the program and said the program ongoing actions are in the program, but the complaint doesn't do that.

[00:15:47] Speaker 05:
The complaint doesn't identify any substantive action that is challenging.

[00:15:52] Speaker 05:
In fact, in the reply brief they were very clear that what they're seeking is to compel the supplemental EIS only without challenging any action in March, of course.

[00:16:02] Speaker 05:
The damage issue was construction had begun and construction was ongoing, but

[00:16:09] Speaker 05:
March, the complaint identified the record of decision for the dam as what it was challenging and said that the dam is no longer is an arbitrary capricious to keep forward with the dam because you need to supplement to take into account the new information.

[00:16:27] Speaker 05:
What's missing here is any challenge

[00:16:29] Speaker 05:
to the regulation or any aspect of the program.

[00:16:32] Speaker 05:
And so they run headlong into this court's cases, like Public Citizen and the Foundation on Economic Trends, which say that standing alone, the failure to prepare an EIS is not reviewable agency action under the APA.

[00:16:49] Speaker 02:
Aren't they necessarily just challenging the program as the action in the same way that the

[00:16:55] Speaker 02:
that the dam project was the challenge in March.

[00:16:58] Speaker 02:
And then there's a question of whether they win on that, because there's a question of whether that action that's being challenged is an ongoing one.

[00:17:07] Speaker 05:
No, I don't think that's correct, because the court would not issue a decision here saying that the program was arbitrary and capricious, because it was not subject to the challenge.

[00:17:19] Speaker 05:
So the court in March, if it had concluded

[00:17:22] Speaker 05:
that a supplemental environmental impact statement was necessary would issue a decision saying that the decision to go forward with the dam is arbitrary and capricious until you prepare a supplemental environmental impact statement to support it.

[00:17:36] Speaker 04:
You seem to be assuming incorrectly that under the APA, a failure to act is not a viable action.

[00:17:43] Speaker 05:
That's wrong.

[00:17:44] Speaker 05:
No, I'm not assuming that at all.

[00:17:45] Speaker 04:
They're saying that under the circumstances here, given the program and the nature of the program and the promises that have been made

[00:17:52] Speaker 04:
In the program and the regulations, there's a requirement that you act when there are new circumstances of the sort that they're presenting.

[00:18:01] Speaker 04:
They don't have to show that you did something which they are now challenging.

[00:18:05] Speaker 04:
They're saying that you failed to do something which they're challenging, and that is absolutely vile.

[00:18:09] Speaker 04:
The question is whether they're right on the merits here.

[00:18:12] Speaker 05:
I don't think that's correct.

[00:18:14] Speaker 05:
What's not correct?

[00:18:17] Speaker 05:
I agree with you, but I don't think that's what this case is.

[00:18:21] Speaker 05:
I agree with you that a failure to act is certainly an action that you can bring under the APA.

[00:18:28] Speaker 05:
But the failure to act has to be a discreet action that would be a reviewable final agency action if it were taken.

[00:18:37] Speaker 05:
And what they're alleging here is a failure.

[00:18:39] Speaker 04:
Your notion of finality, respectfully, is completely off.

[00:18:44] Speaker 04:
Connecting this to 704 makes no sense.

[00:18:47] Speaker 04:
So your argument there, I would tell you to put it in the wastebasket because it's not useful and it completely misses the point.

[00:18:56] Speaker 04:
The point here is, is a claim of failure to act.

[00:18:59] Speaker 04:
It's not about a finality notion.

[00:19:02] Speaker 04:
It's a 7061 notion, failure to act.

[00:19:05] Speaker 04:
They had different causes of action under the APA.

[00:19:08] Speaker 04:
You got it wrong to suggest this has to be tied to

[00:19:11] Speaker 04:
704.

[00:19:12] Speaker 04:
That's simply wrong.

[00:19:13] Speaker 04:
The cases don't support that.

[00:19:15] Speaker 04:
I would respectfully disagree, and this was the position that we... I'm trying to help you to make a clearer argument that gets rid of the 704 argument.

[00:19:23] Speaker 04:
The 704 argument's not going to win.

[00:19:26] Speaker 05:
I'm going to leave it alone for now, but I will say that this is the argument that we made, we also made in the Southern Utah Wilderness Alliance case, which the Supreme Court didn't reach, but noted that it didn't need to and reached the other argument.

[00:19:39] Speaker 05:
So I will move

[00:19:40] Speaker 05:
on to the argument under the regulations here that no supplement is required.

[00:19:49] Speaker 05:
I hope the court will re-examine our submission on that point.

[00:19:55] Speaker 05:
Don't hold your breath on it.

[00:19:58] Speaker 05:
I understand.

[00:19:59] Speaker 05:
Of course, the regulations, under the regulations, there has to be a proposed action before there is a supplement required.

[00:20:10] Speaker 05:
The action here was the promulgation of the regulations in 1979, unlike in Marsh where you have a project.

[00:20:18] Speaker 05:
The typical supplemental environmental impact statement is going to be required where there's an ongoing project.

[00:20:23] Speaker 05:
In Marsh, there

[00:20:25] Speaker 05:
physically building a dam.

[00:20:27] Speaker 05:
The passage of a regulation, on the other hand, concludes the agency's action with respect to the regulation just as in the Zua case.

[00:20:37] Speaker 02:
The difficulty I'm having with this argument, and I don't know that it's actually limited to either side, is that you're definitely right if the action is the promulgation of the regulation.

[00:20:47] Speaker 02:
then it follows, as the night follows the day, that that action is done.

[00:20:52] Speaker 02:
But that's just a conclusion it seems like.

[00:20:54] Speaker 02:
If the action is the promulgation and operation of a program,

[00:20:59] Speaker 02:
that program continues to exist.

[00:21:02] Speaker 02:
So the question for us is which descriptive framework is the correct one?

[00:21:08] Speaker 05:
And I think regulations are more like the land use management plan that was at issue in SUA.

[00:21:19] Speaker 05:
because they're really the prototypical agency action.

[00:21:23] Speaker 05:
That's what you're studying, the passage of the regulations, and then when you pass it, it's done.

[00:21:27] Speaker 05:
And, of course, here, the regulations themselves then provide for additional NEPA review at each stage of the process.

[00:21:37] Speaker 05:
So you'll have NEPA review at the land use management plan stage under the flip line, and then you'll have NEPA review at each individual stage.

[00:21:49] Speaker 05:
the obligation was for the regulations, otherwise you would have a continuing duty to supplement for any regulatory regime any time there's new environmental information, which I think would be unworkable.

[00:22:01] Speaker 02:
So let me ask you this question that borrows from the way that you've characterized it.

[00:22:05] Speaker 02:
So if it's true that the relevant action is promulgation of the regulations, which establishes a framework that's then implemented on an ongoing basis?

[00:22:13] Speaker 02:
if we conceive of the action in the way that you want us to conceive of it, and I'm not saying we would, I'm just saying as a matter of argument, suppose we do, then it seems like you have to take the bitter with the sweet, which is that if the only thing at issue is the establishment of the framework, and then that framework is visited on an ongoing basis in the form of projects that are approved, then the assumptions that underlay that framework are incorporated into every act of implementation.

[00:22:43] Speaker 02:
And so then it can't be that there was an obligation to do a programmatic EIS at the beginning in connection with the establishment of the framework, but then that's done.

[00:22:51] Speaker 02:
And then every time it's implemented, you don't ever have to look at the programmatic implications that were at issue with respect to the establishment of the framework, because whatever environmental impacts are associated with the establishment of the framework are practically implemented on an ongoing basis, so that on a site-specific application, those kind of global national impacts are something that should be taken into account.

[00:23:15] Speaker 02:
You see what I'm saying.

[00:23:16] Speaker 05:
No, I understand.

[00:23:17] Speaker 05:
I understand what you're saying.

[00:23:18] Speaker 05:
And I think I don't think I disagree with it.

[00:23:20] Speaker 05:
I'm trying to, you know, yes, you if when you have a programmatic environmental impact statement like Kerman, of course, NEPA's aims are to inform the agency and to inform the public of the impacts procedurally so they can make an informed decision.

[00:23:33] Speaker 05:
So when you have

[00:23:34] Speaker 05:
a situation like this where you have a programmatic environmental impact statement for a regulatory regime, and then projects that go forward individually under it that have their own environmental impact statements or environmental assessments, then the question is, you know, for each of those, they can rely to some extent, to no extent, on the programmatic statement depending on what impacts are at issue in those statements.

[00:24:01] Speaker 05:
But under no circumstance do they have – does that –

[00:24:04] Speaker 05:
If there's a deficiency in the programmatic on a particular point, it's within the agency's discretion, just as it always is whether to prepare a programmatic environmental impact statement at all to begin with, whether to address that deficiency through a supplement to the programmatic or through the individual.

[00:24:19] Speaker 04:
The question is whether there's an obligation to do it.

[00:24:21] Speaker 04:
I mean, it seems to me the government, both in 79 and 82, made it clear you understood there was an obligation, even in 82.

[00:24:29] Speaker 04:
When you took the language out, you said the department must revise or update the program EIS when its assumption, analyses, and conclusions are no longer valid.

[00:24:40] Speaker 04:
That's what this is about.

[00:24:41] Speaker 04:
And the question is, is that enough for them to be able to bring the claimant there any year now and not be limited to the individual licensing situation where it's clear you're not going to do anything?

[00:24:55] Speaker 04:
You've made that clear.

[00:24:56] Speaker 04:
You're not going to look at the larger

[00:24:59] Speaker 04:
environmental concerns, climate change that they're talking about, and you're not disagreeing with them that there have been major climate change.

[00:25:07] Speaker 05:
I don't think that that statement from 1982 is enough because it did come in the context of repealing the regulation governing when an agency would update

[00:25:20] Speaker 05:
the programmatic EIS, and it's coupled with a statement that essentially the agency will do what NEPA requires when it requires it.

[00:25:28] Speaker 05:
So it just collapses down into the question.

[00:25:30] Speaker 04:
Well, if you agree with their starting premise that there's major climate change, and you have said that you understand, in 82, you say you don't even need the language.

[00:25:38] Speaker 04:
We understand we must revise or update the program EIS.

[00:25:43] Speaker 04:
when the assumption, analysis, and inclusion is no longer valid.

[00:25:47] Speaker 05:
I would say two things about that.

[00:25:50] Speaker 05:
One, that statement was made, of course, before most of the major NEPA cases, including Southern Utah Wilderness Alliance, and I don't think it can bind the agency's view of NEPA there, can bind it now in light of

[00:26:03] Speaker 05:
the understanding of NEPA from those cases, but also as a practical matter, that regulation and that statement was, of course, pertained to the regional leasing system, which has now been abandoned.

[00:26:19] Speaker 05:
And under the regulations for the leasing by application system, which is how the agency does it now, contemplates individual environmental impact statements.

[00:26:27] Speaker 04:
So you're saying the guidance position is there is no obligation to revise or update a program EIS

[00:26:33] Speaker 04:
when everyone could see that the underlying assumptions are wrong.

[00:26:38] Speaker 04:
Just take it the way I've given it to you, please.

[00:26:43] Speaker 04:
Everyone in the room would agree that the underlying assumptions are wrong.

[00:26:47] Speaker 04:
It's the government's position that nonetheless, we do not have an obligation to review an existing program that's resting on incorrect assumptions.

[00:26:57] Speaker 05:
I will say yes with the caveat that the obligation to examine environmental impacts of actions taken under the program arises with respect to individual actions taken under the program.

[00:27:13] Speaker 04:
Are those individual actions governed, guided by, affected by the program statement?

[00:27:20] Speaker 05:
At this point, the individual actions, the environmental impacts... Please, if you just answer my question, then I would understand your position better.

[00:27:30] Speaker 04:
Are the individual actions governed by, guided by, influenced by the program that is still on the books?

[00:27:39] Speaker 04:
Yes or no?

[00:27:40] Speaker 05:
They are guided by the regulations.

[00:27:42] Speaker 05:
They are not guided by the impact statement.

[00:27:44] Speaker 04:
Please do me a favor, since I'm the one, one of the ones who has to go back and think about it afterwards.

[00:27:50] Speaker 04:
Just answer my question, then you can amplify.

[00:27:53] Speaker 04:
Are they governed by, regulated, affected by the program statement that is still on the books?

[00:28:00] Speaker 05:
Not the program statement, generally.

[00:28:03] Speaker 05:
What the EISs do, the individual EISs do, is they generally recite that the program statement exists, but the agency is not tiering to that for any purpose, climate change or any other purpose, generally, in its individual statements now.

[00:28:17] Speaker 05:
The individual statements stand or fall on their own.

[00:28:19] Speaker 04:
And this Court has said it could... So the program EISs of no consequence is what you're saying?

[00:28:24] Speaker 05:
The program EIS was for the 1979 regulations, which were promulgated in 1979 and completed then.

[00:28:32] Speaker 02:
But every action on a going forward basis is necessary.

[00:28:39] Speaker 02:
It just seems to me you're not taking the better with the sweet.

[00:28:44] Speaker 02:
Because if you establish a framework and you view the action as just the establishment of that framework,

[00:28:52] Speaker 02:
you might be okay.

[00:28:53] Speaker 02:
But if that framework governs ongoing action, then every time there's an implementation of that action, it's necessarily under the auspices of that framework.

[00:29:01] Speaker 02:
And so it seems anomalous to say that establishment of the framework is done and over with.

[00:29:08] Speaker 02:
And every implementation decision, we're going to treat it as if it's this hermetically sealed application that has nothing to do with the overarching framework.

[00:29:17] Speaker 02:
Not that it has nothing to do with it.

[00:29:20] Speaker 02:
That framework, it does inform and guide every implementation.

[00:29:24] Speaker 05:
Perhaps I'm not being clear.

[00:29:25] Speaker 05:
The regulations clearly inform and guide.

[00:29:27] Speaker 05:
The impact statement was prepared for those regulations.

[00:29:32] Speaker 05:
But when you're dealing with environmental impacts and informing, making an individual decision, you have to look at the environmental impacts, including cumulative impacts.

[00:29:41] Speaker 05:
And so if they want to challenge an individual decision and say that the cumulative impacts have not been sufficiently considered in that decision because the agency's programmatic EIS is out of date and needs to be updated, they can bring that challenge, but that is not this case.

[00:29:56] Speaker 02:
But before you stop that, so that's a critical point because I think the submission that's being made on the other side is if somebody were to bring that kind of challenge in connection with the site-specific one, the answer from the agency would be,

[00:30:10] Speaker 02:
No, you can't bring that type of challenge here because the programmatic EIS has done it over with.

[00:30:16] Speaker 02:
All we're talking about is site-specific impacts at this point.

[00:30:18] Speaker 02:
Everything that's encompassed by the programmatic impacts, i.e.

[00:30:21] Speaker 02:
nationwide impacts,

[00:30:23] Speaker 02:
That's on the back burner.

[00:30:25] Speaker 02:
That's just not an issue in a site-specific application.

[00:30:27] Speaker 02:
It sounds to me like what you're saying is, no, they're free to bring that type of claim, and that would have to be treated with, right?

[00:30:35] Speaker 05:
The courts would have to decide it, and we would have to respond to it, and we would have, I'm certain we would have defenses to it that we would assert.

[00:30:41] Speaker 04:
No, no, no, no, wait.

[00:30:42] Speaker 04:
No, no, you're going all over the place.

[00:30:45] Speaker 04:
You either have an obligation or not.

[00:30:47] Speaker 04:
Judge Frontovastin said you seem to just say, in the individual licensing, that is when

[00:30:53] Speaker 04:
Their claims about consideration of the programmatic impact statement and larger issues of climate change, that's when you have to raise it.

[00:31:01] Speaker 04:
And they can raise it then.

[00:31:02] Speaker 04:
And if they raise a legitimate claim, we have to address it.

[00:31:05] Speaker 04:
And if we fail to do so, the court will reverse you.

[00:31:08] Speaker 04:
Right?

[00:31:08] Speaker 04:
Is that what you just said?

[00:31:09] Speaker 05:
If they raise it, and it's a legitimate claim, yeah, that's all correct.

[00:31:15] Speaker 05:
But I also do not want to concede that they would necessarily win that suit.

[00:31:20] Speaker 05:
I'm sure we certainly would have defenses to it.

[00:31:22] Speaker 02:
In what way would they lose?

[00:31:24] Speaker 02:
Here's my question.

[00:31:25] Speaker 02:
It may well be that somebody who brings that type of challenge loses, because anybody can lose any case if the particular arguments in that case are wrong.

[00:31:33] Speaker 02:
And so obviously, you can't take the position of the government that somebody's going to win.

[00:31:37] Speaker 02:
I guess my question is, if they make this type of argument that says, suppose we rule in this case the way you want us to rule.

[00:31:45] Speaker 02:
Just suppose it.

[00:31:47] Speaker 02:
And then the site-specific application comes along later.

[00:31:50] Speaker 02:
And what the challenger basically does is to say,

[00:31:53] Speaker 02:
Yeah, that case that the DC Circuit decided only resolved that the regulations, the promulgation of the regulations was the relevant action.

[00:32:05] Speaker 02:
In this case, what we're saying is that framework that was established is being applied here.

[00:32:10] Speaker 02:
That framework needs to be rethought because there's a bunch of information that underlay the establishment of that framework that's just no longer good in light of current knowledge.

[00:32:18] Speaker 02:
Would the government respond and say, that's not an argument that we have to deal with in a site-specific one.

[00:32:25] Speaker 02:
That's all we have to deal with in this case is site-specific impacts.

[00:32:29] Speaker 02:
This kind of global nationwide impact is just off the books, it's done and over with.

[00:32:33] Speaker 02:
Or would the government say, no, you can make that kind of argument and we'd have to defend it by saying that what we have on the books now is good enough.

[00:32:42] Speaker 05:
I'm not sure I'm comfortable making a representation about the specific defenses that the government would make in that kind of suit.

[00:32:51] Speaker 05:
I do think that procedurally, that's the proper way to bring the suit.

[00:32:55] Speaker 05:
And I think that here, where they're not challenging any particular substantive action, where the agency hasn't proposed to take any new action or regulation, what this really amounts to is an attempt to get at the program

[00:33:12] Speaker 05:
through the procedure of NEPA when we know from cases like Lujan and from SUA that you can't get substantively at the program as a whole by bringing a substantive challenge.

[00:33:27] Speaker 05:
And so what this really amounts to is an attempt to get at that sort of programmatic improvement, overall improvement of the program through NEPA.

[00:33:37] Speaker 04:
They can get at it if there's an obligation

[00:33:40] Speaker 04:
If they're correct and their claims with respect to obligations that can be found, you just disagree on that.

[00:33:49] Speaker 04:
That's all.

[00:33:50] Speaker 04:
Don't say it's not possible.

[00:33:51] Speaker 04:
It is possible.

[00:33:53] Speaker 05:
Well, that's the source of our disagreement, yes, that there's no obligation here.

[00:33:59] Speaker 05:
But that's, I mean, let's be clear about that.

[00:34:01] Speaker 05:
That's what, this is of a piece of Sua, Luhan, those sorts of cases where plaintiffs come in and seek programmatic improvements.

[00:34:13] Speaker 05:
And the courts, the Supreme Court, this court have said over and over again, you can't seek those sorts of programmatic improvements.

[00:34:22] Speaker 05:
through litigation.

[00:34:23] Speaker 05:
You must, through a student against a program, you must proceed in a case-by-case basis even though it's not necessarily preferred by plaintiffs.

[00:34:33] Speaker 02:
So if that's the route, then I take it that if your response to this suit is you can't bring this type of programmatic challenge in this case because there's a bunch of cases that establish that proposition.

[00:34:44] Speaker 02:
The correct vehicle is to wait for an as-applied, let's just call it as-applied, like a site-specific application.

[00:34:50] Speaker 02:
then when the site-specific application occurs, then you wouldn't be able to say, those same cases also say you can't bring that type of challenge in a site-specific channel, in a site-specific application.

[00:35:00] Speaker 02:
That wouldn't be the answer.

[00:35:02] Speaker 05:
I think that probably wouldn't be the answer, but I'm sure there are other answers that we would have to that suit.

[00:35:08] Speaker 02:
I wouldn't expect you to concede defeat in a suit that's yet to happen, but in terms of the position that you would take, it would have to be a different response.

[00:35:20] Speaker 02:
That type of programmatic challenge is just not cognizable in this kind of action.

[00:35:27] Speaker 05:
I think that's probably right, but I think what we would say is it clearly fails on the merits because of the nature of individual EISs and whatever we did there.

[00:35:39] Speaker 02:
What do you mean by that?

[00:35:41] Speaker 02:
That seems important.

[00:35:41] Speaker 02:
What do you mean by that?

[00:35:42] Speaker 02:
That it would necessarily fail?

[00:35:45] Speaker 02:
How can it be the case that

[00:35:47] Speaker 02:
On one hand, you're saying now you have to go through an individualized action, and then the answer to the individualized action is it necessarily fails in an individualized action.

[00:35:56] Speaker 05:
I think the fact that they would lose both cases doesn't mean that they get to bring this one.

[00:36:02] Speaker 05:
That's all I'm trying to get at here.

[00:36:06] Speaker 02:
So you're not saying that the government's position is not that this type of programmatic challenge can't be brought in this type of action.

[00:36:14] Speaker 02:
The proper way to bring it is an individualized action.

[00:36:16] Speaker 05:
And then the answer to the individualized action is you can't bring that kind of programmatic action in an individualized case.

[00:36:26] Speaker 05:
That case is similar, right, and the court there said you don't challenge at this level, you, you know, that was right in this, but you wait, and then you can get at the plan through the individual action if there's a deficiency in the, I think there's a forest plan there, right?

[00:36:41] Speaker 05:
If there's a deficiency in the forest plan that informs the individual action, you can get at it through the suit when there's an individual action.

[00:36:46] Speaker 04:
So if there's a deficiency in the program, you can get at it in the individual action.

[00:36:51] Speaker 05:
I think that's the forum to bring it.

[00:36:52] Speaker 05:
It's not here through a freestanding NEPA claim where there's no action challenged and they're going after the program as a whole and the agency hasn't proposed to take any action.

[00:37:05] Speaker 05:
which, of course, is a supplement.

[00:37:07] Speaker 05:
The question when you're doing a supplement is, what are the alternatives?

[00:37:11] Speaker 05:
What should the agency do?

[00:37:12] Speaker 05:
Well, if the agency hasn't done anything, you don't do a supplemental EIS to possibly inform some potential future action.

[00:37:19] Speaker 05:
They want us to change the program.

[00:37:21] Speaker 05:
Well, how?

[00:37:22] Speaker 05:
Bring a petition.

[00:37:24] Speaker 05:
Tell us how you want us to change it.

[00:37:25] Speaker 05:
Then we can study the alternatives to changing it.

[00:37:28] Speaker 05:
Well, the impacts are not known, so now we have to go update all of the impacts and then maybe you'll change the program in some way.

[00:37:38] Speaker 04:
Just bring a petition.

[00:37:40] Speaker 05:
In the way that this court was suggesting earlier, you bring a petition for rulemaking.

[00:37:45] Speaker 02:
Let's suppose that the question is, what alternatives are there to raise this sort of issue with the agency?

[00:37:57] Speaker 02:
It seems to me there's two potential ones on the table.

[00:38:00] Speaker 02:
you bring a petition in terms of asking for agency action to adjust the underlying program.

[00:38:06] Speaker 02:
Sure.

[00:38:06] Speaker 02:
We did talk about that.

[00:38:07] Speaker 02:
But another is that you bring this form of challenge as in part as a challenge to the approval of a site-specific project.

[00:38:15] Speaker 02:
I agree, and this is neither one of those.

[00:38:17] Speaker 02:
Yeah, this is one of them, but you're not, are you are you suggesting that the only way to do it is

[00:38:22] Speaker 02:
is through a petition for agency action, or are you saying?

[00:38:26] Speaker 05:
I'm saying that either of those two alternatives would be available to the plaintiffs here to get a judicial review of inadequacies in the national.

[00:38:39] Speaker 02:
Can I ask you a somewhat technical question maybe that maybe I can get your help on, which is

[00:38:44] Speaker 02:
the way that tiering intersects with the issues in this case.

[00:38:48] Speaker 02:
So that's only the second type of challenge, the site-specific application.

[00:38:52] Speaker 02:
So with respect to that, if the programmatic EIS were tiered in the agency's response to a specific lease application,

[00:39:04] Speaker 02:
Then, as I understand it, tiering basically means incorporate by reference, essentially, is that we're taking everything that underlies the thing that we're tiering and we're depositing it into this.

[00:39:14] Speaker 02:
Is that at a high level of generality what's going on?

[00:39:18] Speaker 02:
So if that's true, then the programmatic EIS, when it's tiered, essentially becomes at least part of the EIS.

[00:39:26] Speaker 02:
And in that situation, a challenger could just say, well, look, the programmatic EIS is just before.

[00:39:31] Speaker 02:
us with respect to this site-specific application.

[00:39:33] Speaker 02:
How do we know?

[00:39:33] Speaker 02:
Because it's tiered.

[00:39:34] Speaker 02:
And so it's here.

[00:39:36] Speaker 02:
It sounds like, on the ground, that tiering is not happening.

[00:39:41] Speaker 02:
And then if that's true, then would the government take the position that basically we get the choice not to bring the programmatic EIS into play because we're not tiering.

[00:39:51] Speaker 02:
And then because we're not tiering, you can't bring a challenge that affects the programmatic EIS

[00:39:57] Speaker 05:
I think that's probably right, but in that circumstance, then the individual EIS has to stand on its own.

[00:40:06] Speaker 05:
You don't get the benefit of the tiering.

[00:40:08] Speaker 05:
So if they then challenge the individualized EIS and say, well, you haven't considered programmatic impacts, we wouldn't be able to rely if we haven't

[00:40:18] Speaker 05:
you know, tiered formally to that document on that document to provide the programmatic impacts.

[00:40:23] Speaker 05:
And then the question would be whether they could prevail on a suit saying that you had to do the programmatic impacts, you know, at the individual stage.

[00:40:32] Speaker 05:
And that's where that question should be answered, not here.

[00:40:37] Speaker 02:
simply by virtue of the fact that we're not tiering, that challenge is foreclosed.

[00:40:41] Speaker 02:
The answer could still be, no, you know, we can't get out of an obligation we have by not tiering.

[00:40:47] Speaker 05:
To the extent the obligation exists, yeah, you cannot get out of it by not tiering, but we may contend in that suit that the obligation didn't exist, or I don't want to foreclose any, you know, arguments the urban might make in at some future suit here, but that should be resolved in that suit.

[00:41:05] Speaker 05:
Thank you.

[00:41:06] Speaker 03:
Thank you.

[00:41:17] Speaker 03:
Please quiet.

[00:41:19] Speaker 03:
I'm Michael Robinson.

[00:41:19] Speaker 03:
I represent the intervener, State of Wyoming.

[00:41:24] Speaker 03:
We approached this in a slightly different manner by looking at what the plaintiffs were asking for.

[00:41:30] Speaker 03:
They were asking for a supplement of the 1975 environmental impact statement.

[00:41:37] Speaker 03:
That statement considered a national coal program.

[00:41:43] Speaker 03:
If you go back and actually look at what that statement evaluated was what eventually became the regional coal production process.

[00:41:53] Speaker 03:
There's no discussion of the individual, at least by application, other than to know that it was a possible alternative.

[00:42:01] Speaker 03:
but all the environmental evaluations and impacts related to that national program.

[00:42:09] Speaker 03:
That program was initially implemented through the 1979 regulations and it lasted barely a decade because it was completely ineffective.

[00:42:19] Speaker 03:
All those coal regions have been decertified.

[00:42:28] Speaker 03:
So the program, the 1979 EIS looked at, no longer exists.

[00:42:33] Speaker 03:
That framework is gone.

[00:42:35] Speaker 03:
Now, they still exist on the rules and... The 85 program doesn't exist.

[00:42:41] Speaker 03:
Yes, the 1979 program was established by that environmental impact statement no longer... Leading to the 85.

[00:42:50] Speaker 03:
And supplemented by the 85, yes.

[00:42:52] Speaker 04:
When you say they don't exist, what does that mean?

[00:42:54] Speaker 03:
It means that they are no longer used.

[00:42:57] Speaker 03:
The coal, the process of...

[00:43:01] Speaker 03:
setting coal leases through designated regions based upon national production goals that no longer exist.

[00:43:10] Speaker 04:
So you're saying in the individual licensing action your view is that those programs have no impact whatsoever.

[00:43:18] Speaker 04:
Is that your view?

[00:43:19] Speaker 03:
Uh, no, not necessarily.

[00:43:21] Speaker 03:
I'm not sure I'm following.

[00:43:23] Speaker 04:
Well, I'm not sure what you're saying when you say the program doesn't exist anymore.

[00:43:26] Speaker 04:
It's either a framework or it's not.

[00:43:30] Speaker 03:
Right.

[00:43:30] Speaker 03:
See, in 1979, the Environmental Impact Statement evaluated a program whereby regions were established, basically like little councils, there'd be a national production goal, and they would set sales and leasing goals.

[00:43:45] Speaker 03:
Right.

[00:43:47] Speaker 03:
All those regions have been decertified.

[00:43:52] Speaker 03:
The only thing left is the individual lease by application.

[00:43:59] Speaker 03:
That now covers all coal leasing on federal lands.

[00:44:03] Speaker 04:
But is there something in the program that has an impact on the individual licensing requests?

[00:44:11] Speaker 03:
Not that I'm aware of, because each individual one has its own environmental impact statement.

[00:44:16] Speaker 02:
I guess what I'm not understanding just conceptually about your argument is you'd be right if the only thing that was established in 1979, 82, or 85, whatever we're talking about, that complex of years, was the regional part of it.

[00:44:31] Speaker 02:
But there's a least by application part of it that was also

[00:44:35] Speaker 02:
established then, and that continues to exist.

[00:44:38] Speaker 02:
It sounds to me like you're agreeing that that continues to exist because leases are happening and they're being considered.

[00:44:45] Speaker 03:
Right.

[00:44:46] Speaker 03:
What the 1979 environmental impact statement said was, here's the program, and then there may be some other alternative ways to supplement that program, but we're not going to evaluate them.

[00:45:03] Speaker 02:
So you just understand the programmatic EIS only if you're dealing with the regional aspect of... Yes.

[00:45:09] Speaker 02:
In your view, it has nothing to do with lease by application.

[00:45:12] Speaker 04:
Nothing to do with lease by application.

[00:45:14] Speaker 03:
Nothing to do with them other than establishing the fact that they exist.

[00:45:18] Speaker 02:
Other than saying it seems like a pretty big well.

[00:45:23] Speaker 02:
Yes.

[00:45:23] Speaker 02:
I mean, if that's what if that's what establishes they exist and that's the EIS did right.

[00:45:28] Speaker 03:
Well, they were established through the 1979 regulations, which first set out the regions.

[00:45:34] Speaker 03:
coal producing regions and then said, okay, for anything that's not in a coal producing region, you can do this lease by application.

[00:45:43] Speaker 03:
With one slight exception, if there was an emergency in a region, you could use that.

[00:45:48] Speaker 03:
To my knowledge, that was never used.

[00:45:51] Speaker 03:
Once all the regions were decertified, by definition, you could use the lease by application anywhere.

[00:46:04] Speaker 02:
Thank you.

[00:46:07] Speaker 02:
And was there any time left for?

[00:46:11] Speaker 02:
We'll give you three minutes.

[00:46:15] Speaker 01:
Thank you.

[00:46:16] Speaker 01:
Just a couple of quick things.

[00:46:18] Speaker 01:
We agree that the case does boil down to whether or not this is a Marsh type situation.

[00:46:23] Speaker 01:
And just note that the distinction that was offered between this case and Marsh is just not correct.

[00:46:28] Speaker 01:
The plaintiffs in Marsh were seeking from the court an injunction

[00:46:32] Speaker 01:
against the continued building of the dam from the court until the NEPA analysis was done.

[00:46:37] Speaker 01:
They weren't saying substantively you can't build this dam.

[00:46:40] Speaker 01:
It's arbitrary and capricious to build it, period.

[00:46:42] Speaker 01:
They were saying until you do the NEPA analysis, you can't build it.

[00:46:46] Speaker 01:
That's the exact thing that we are asking for here.

[00:46:48] Speaker 01:
If you look at paragraph C of our relief provision in our complaint, it's a JA85.

[00:46:54] Speaker 01:
You'll see we're asking for an injunction.

[00:46:55] Speaker 01:
against the continued management of the program until the NEPA analysis is done.

[00:47:00] Speaker 04:
I mean the problem for you or the question for you is whether the Marsh situation appears here that is an ongoing obligation that was pretty clear from the program that we're talking about there and whether you have that here.

[00:47:14] Speaker 01:
Yes, I agree that's right.

[00:47:15] Speaker 04:
There's no question that if you have the right circumstances you can bring a claim.

[00:47:21] Speaker 04:
for failure to act.

[00:47:22] Speaker 04:
I mean, not there in any doubt about that, but the question is whether you were in the Marsh frame or whether you were in the Titan-Orton frame.

[00:47:30] Speaker 04:
We can't show it.

[00:47:32] Speaker 01:
I agree with that.

[00:47:33] Speaker 01:
I was just addressing the only distinction that I heard the other side offer.

[00:47:36] Speaker 01:
I will say, from our view, the way to resolve the question of whether this is an ongoing program of the Marsh form is, first and foremost, the definition of action that appears in the CEQ regulations.

[00:47:47] Speaker 01:
I think that's at 40 CFR 1508A.

[00:47:50] Speaker 01:
That's actions include new and continuing activities, including projects and programs.

[00:47:57] Speaker 01:
entirely or partly financed, assisted, conducted, or regulated by a federal agency.

[00:48:02] Speaker 01:
And in this regard, there are two important aspects of the 1982 statement that you were pointing to, Judge Edwards.

[00:48:08] Speaker 01:
One of them is our freestanding APA claim that when you make a statement like that in a record of decision, you are bound by it.

[00:48:15] Speaker 01:
The other is, if this was, as the agency now submits, just the issuance of the regulations and it was concluded in 1979,

[00:48:23] Speaker 01:
there would have been no reason to suggest that the PEIS would ever be updated for any reason, because the agency's position is that these are the regulations they've been issued, the final agency action is over.

[00:48:36] Speaker 02:
Well, I mean, it could be that they just, that that was before SUA, and what they were saying was, we understand this to be what's required by

[00:48:46] Speaker 02:
law in terms of when NEPA requires supplementation.

[00:48:50] Speaker 02:
And that was just, it turns out to be an intuitively, gratuitously expansive understanding of NEPA obligations, and the Supreme Court corrected that later, and now their position is, whatever we might have said about what we thought was required by NEPA before, we now stand corrected.

[00:49:05] Speaker 01:
I mean, it's before NEPA and before SUA and MARCH, and it's not like SUA takes the position that it's never necessary to update a program EIS or an EIS of any kind.

[00:49:17] Speaker 01:
In fact, it reaffirms MARCH's standard that there is, in fact, an obligation to update it at certain periods.

[00:49:23] Speaker 01:
And what they're saying is, this is not a closed program.

[00:49:27] Speaker 01:
This is not over.

[00:49:29] Speaker 01:
That's all that Martians who are adding.

[00:49:34] Speaker 01:
If it is over, then you don't have to update it.

[00:49:36] Speaker 01:
If it's not over, then you do.

[00:49:38] Speaker 02:
Well, I think what they would say is,

[00:49:42] Speaker 02:
Before SUA, we would have thought that just like plans set forth frameworks, programs set forth frameworks, and we thought that there was a NEPA obligation to continue to supplement with respect to a plan no less than a program.

[00:49:56] Speaker 02:
Now we realize that with respect to a plan, actually the NEPA obligation to supplement ends at the moment that the plan's adopted.

[00:50:03] Speaker 02:
By virtue of the same reasoning, we now get that the supposed NEPA obligation to update ends at the time that the program's adopted.

[00:50:12] Speaker 01:
I suppose that if that's the way you want to, you would read it, and I agree it was an old statement so it's maybe less probative.

[00:50:18] Speaker 01:
I would focus on the contemporary, the current regulation.

[00:50:22] Speaker 02:
So can I just ask you about this?

[00:50:23] Speaker 02:
I just want to make sure I understand the argument on the regulation.

[00:50:25] Speaker 02:
So the regulation does say actions include new and continuing activities including projects and programs, and then et cetera, et cetera.

[00:50:34] Speaker 02:
Why does that dictate that your conception of this program is the right one?

[00:50:40] Speaker 02:
Why does that language, it includes new and continuing activities including projects and programs, but I think I'm missing something on.

[00:50:47] Speaker 01:
I just think it makes the point that it's not limited to individual projects in the marsh style way.

[00:50:53] Speaker 01:
You don't have to say, you know, you just have this individual site-specific project that hasn't been concluded yet.

[00:50:59] Speaker 01:
Actions can include continuing activities like a program.

[00:51:02] Speaker 01:
And I frankly don't even think there is a dispute that this is an ongoing program.

[00:51:06] Speaker 01:
They asked to increase the budget

[00:51:08] Speaker 01:
for the coal management program by doubling it in order to do more work under the program.

[00:51:13] Speaker 01:
Secretary Zinke, when he lifted the pause, called it the federal coal management program.

[00:51:18] Speaker 01:
There's a program here.

[00:51:19] Speaker 01:
It does a ton of work.

[00:51:20] Speaker 01:
It has 25 pending lease applications.

[00:51:22] Speaker 02:
So let's just assume that that's right.

[00:51:23] Speaker 02:
Then the question becomes whether the relevant action is the ongoing continuation of that program or was the establishment of the program at the outset.

[00:51:33] Speaker 02:
Because in the same way, a plan continues to have repercussions after the plan is adopted, too.

[00:51:39] Speaker 02:
But the way the Supreme Court construed it in SUA was the relevant action was the adoption of that plan.

[00:51:45] Speaker 02:
Even though the whole nature of a plan is that it's how

[00:51:50] Speaker 02:
the priorities and principles set forth in the plan are going to be applied on an ongoing basis.

[00:51:55] Speaker 01:
That's right.

[00:51:56] Speaker 01:
But I don't think it's either or.

[00:51:58] Speaker 01:
I think it can be both.

[00:51:59] Speaker 01:
The adoption of the program can be itself an action for major federal action, and the continued operation of the program can be in some circumstances.

[00:52:07] Speaker 01:
And that's also true of a plan, right?

[00:52:09] Speaker 01:
What the circumstances.

[00:52:10] Speaker 01:
I agree.

[00:52:11] Speaker 01:
That's right.

[00:52:11] Speaker 01:
That's also true of a plan.

[00:52:12] Speaker 01:
I think a huge distinction is a land use plan doesn't have

[00:52:16] Speaker 01:
a huge amount of staff and budget and ongoing operations, the way that the Federal Coal Management Program does.

[00:52:22] Speaker 01:
This is an ongoing program of the BLM.

[00:52:25] Speaker 01:
It is continuous and is in operation, which is why I don't think you see the government arguing this is not an ongoing program.

[00:52:31] Speaker 01:
They just say this program is over, essentially, or, you know, the action for the purposes of NEPA is over.

[00:52:38] Speaker 04:
I'm not sure they say the program is over.

[00:52:40] Speaker 04:
Ongoing doesn't necessarily give us an answer.

[00:52:45] Speaker 04:
fact that something is ongoing, all these things are ongoing.

[00:52:48] Speaker 04:
The question is whether there's a responsibility to update.

[00:52:52] Speaker 04:
And that's a different question.

[00:52:53] Speaker 04:
And that's really where the Norton question comes in.

[00:52:56] Speaker 04:
All these programs are ongoing of a sort.

[00:52:59] Speaker 01:
I think that's right.

[00:53:00] Speaker 04:
And that's why Norton, that's where the hammer of Norton is big.

[00:53:03] Speaker 04:
I mean, Norton says, no, no, you've got to find a discrete obligation.

[00:53:07] Speaker 04:
You're trying to get

[00:53:08] Speaker 04:
of an agency to take action that you say is improperly withheld.

[00:53:12] Speaker 04:
That's right in the Norton, and Norton gives fairly strong words about what you've got to be able to show.

[00:53:18] Speaker 04:
And you've got to show that they have an obligation somewhere to be found.

[00:53:23] Speaker 04:
The mere fact that a program is ongoing doesn't mean that anyone has promised that it's going to be updated, at least

[00:53:29] Speaker 04:
the way you want to get to it.

[00:53:30] Speaker 04:
Now, there'd be other ways to get to it, but maybe not the way you want to get to it.

[00:53:34] Speaker 01:
I agree that that's right, and I think that the reason that the regulation refers to continuing activities and the reason that SUA and Marsh both talk about major federal action remaining is to point to the question whether there's still anything the agency can do about it once it does the NEPA analysis.

[00:53:51] Speaker 01:
Does there a point to this, or is this a program that has more or less been set in motion and not going to be governed by and on during NEPA?

[00:53:59] Speaker 04:
more or less suggested that your attack line, apart from a request for rulemaking, is in the individual site-specific claims.

[00:54:12] Speaker 04:
I seem to hear them saying that you can raise the larger concern there.

[00:54:20] Speaker 01:
I'll just say that I also seem to be hearing them say that here, although I, you know, seem to hear them say the opposite in the Wild Earth Guardians case.

[00:54:29] Speaker 01:
The other thing I just want to point out is from the intervener's brief.

[00:54:33] Speaker 01:
This is a quote to the 1979 regulate PEIS, and it's further to your point about taking the bitter with the sweet.

[00:54:39] Speaker 01:
They say that the way that the PEIS was set up was one tier to consider

[00:54:43] Speaker 01:
interregional and national impacts and want to consider site-specific and cumulative intra-regional impacts.

[00:54:51] Speaker 01:
And that's exactly the way that the program is in fact carried out.

[00:54:54] Speaker 01:
When you look for those cumulative impact analyses in the site-specific EISs, they accumulate the amount of carbon dioxide that's being released from the Powder River Basin.

[00:55:03] Speaker 01:
They don't ever analyze the entire national program.

[00:55:06] Speaker 02:
And then the question would be whether that's right.

[00:55:09] Speaker 02:
They might be doing that as a matter of

[00:55:11] Speaker 02:
reality.

[00:55:12] Speaker 02:
But then the question would be if somebody brought a challenge.

[00:55:14] Speaker 02:
The question is whether that can be challenged, right?

[00:55:16] Speaker 01:
Oh, right.

[00:55:16] Speaker 01:
All I'm saying is that what they said in place was, in fact, a program in which the PEIS is doing the national impacts work.

[00:55:24] Speaker 01:
It continues to do that, and we think that we can challenge that here.

[00:55:28] Speaker 02:
And I don't want to believe it is too long, but I do want to follow up on the marsh, because the key to this case is

[00:55:35] Speaker 02:
Who's right on which box it falls into?

[00:55:38] Speaker 02:
Is it a Marsh case or is it a SUA slash Norton slash Southern Utah case?

[00:55:42] Speaker 02:
So on that, on the Marsh piece of it, nobody would suggest that the obligation to supplement continues to exist after the construction of the dam was completed, I think, even though

[00:55:56] Speaker 02:
The EIS that antedated the construction of the dam talked about the environmental consequences of the operation of the dam going forward for a long time after construction.

[00:56:06] Speaker 02:
So there's a finite endpoint there, even though that finite endpoint hadn't been reached.

[00:56:12] Speaker 02:
In SUA, there also was a finite endpoint.

[00:56:14] Speaker 02:
It was beforehand.

[00:56:15] Speaker 02:
It was just the adoption of the plan, even though the plan, the whole point of a plan is that it has continuing consequences into the future.

[00:56:24] Speaker 02:
With your assessment of the program, is there ever a finite endpoint?

[00:56:29] Speaker 02:
Or is it just that as long as the program exists, it's always subject to the potential possibility of needing to be supplemented in light of new information?

[00:56:39] Speaker 01:
If the program doesn't conclude, if it is an ongoing activity, it's not going to have a finite endpoint as such.

[00:56:46] Speaker 01:
There is still an obvious limiting principle in the requirement that the change circumstances be significant, which is exactly what motivated Judge Edwards' opinion in Mayo.

[00:56:54] Speaker 02:
Right.

[00:56:55] Speaker 02:
So there's a filter.

[00:56:55] Speaker 02:
I get that.

[00:56:58] Speaker 02:
I guess you want to be in the Marsh part of it, and I guess my point is simply, my observation is simply that even in Marsh there's an end point.

[00:57:05] Speaker 04:
Even in Marsh there's an end point, right.

[00:57:07] Speaker 02:
Whereas the argument here would be that there's just not an end point because, and you may or may not be right, it may be that the nature of a program of this variety, the way it interrelates with NEPA, is just that there is no end point.

[00:57:19] Speaker 02:
There's always a potential duty to supplement as long as it's a significant.

[00:57:22] Speaker 01:
I think that's inherent in the design of NEPA.

[00:57:24] Speaker 01:
They wanted ongoing activities of the government to be conducted in light of information about the environmental consequences so long as there was something the government could do about it.

[00:57:35] Speaker 01:
The point is, once you're done building the dam, you can't do anything about it.

[00:57:39] Speaker 01:
The dam is there.

[00:57:39] Speaker 01:
You're not going to destroy it.

[00:57:41] Speaker 02:
That's true of the practical matter.

[00:57:43] Speaker 02:
You may not destroy the dam.

[00:57:44] Speaker 02:
But is it true that the government is no longer involved in the operation of the dam

[00:57:51] Speaker 02:
I just don't know enough about how these projects work.

[00:57:54] Speaker 01:
So for purposes of March, I think you'd have a very different case if the person's complaint was actually there's still major federal action to be involved in how this dam is run.

[00:58:02] Speaker 01:
If you ran it differently, it would have different environmental consequences.

[00:58:06] Speaker 01:
Please analyze those environmental alternatives.

[00:58:10] Speaker 01:
It's just they were attacking the buildings.

[00:58:13] Speaker 02:
It turns out the EIS that attended

[00:58:16] Speaker 02:
The construction of the dam hypothesized that fish would survive because of the following assumptions.

[00:58:20] Speaker 02:
It turns out those assumptions are completely wrong.

[00:58:22] Speaker 02:
No fish are surviving.

[00:58:23] Speaker 04:
You can't get to it.

[00:58:26] Speaker 01:
Right, but I think the decision that was to be taken was whether to build the dam or not.

[00:58:31] Speaker 01:
And so that decision being concluded, there would be no reason to update that.

[00:58:35] Speaker 02:
Yeah, it just seems like it just becomes as question-begging as everything, because that's true.

[00:58:42] Speaker 02:
If it was building the dam, then you're right.

[00:58:44] Speaker 02:
Just like if it was just promulgating the regulations or establishing the program, then you'd be wrong here.

[00:58:51] Speaker 01:
Yeah, I guess I don't think in most is any discussion of a potential major decision for the government to stop operating the dam, even though it's being constructed.

[00:59:00] Speaker 01:
I think they're taking the case as it comes to them and that all they're trying to suggest is if there isn't discretion left that there isn't major agency action.

[00:59:09] Speaker 01:
major federal action to be undertaken, it's too late to update.

[00:59:13] Speaker 01:
And we are not, manifestly not in that situation here.

[00:59:16] Speaker 01:
There are a lot of decisions left to be made, like the Secretary's decision whether to run the program at all or not.

[00:59:22] Speaker 01:
Thanks very much.

[00:59:23] Speaker 02:
Okay.

[00:59:23] Speaker 02:
Thank you, Council and Council.

[00:59:25] Speaker 02:
The case is submitted.