[00:00:00] Speaker 00:
Case number 20-1594, Fisheries Survival Fund et al., a balance, Garden State Seafood Association, versus Scott de la Vega, Acting Secretary of the Interior et al., Mr. Frula for the balance, Mr. Smeltzer for the EPLES, Secretary of the Interior and Bureau of Ocean Energy Management, Mr. Super for the EPLES Equinor Wind US LLC.

[00:00:34] Speaker 02:
Good morning, Your Honor, and may it please the Court.

[00:00:40] Speaker 02:
I'd like to reserve two minutes for rebuttal.

[00:00:43] Speaker 02:
I think I had 10 altogether.

[00:00:47] Speaker 02:
We represent the fishing communities, associations, and businesses whose interests were immediately adversely affected by the lease of an area offshore in New York for offshore wind development.

[00:00:59] Speaker 02:
twice the size of the District of Columbia.

[00:01:01] Speaker 02:
The lease was made by the appellee secretary to the appellant appellee intervener, Equinor.

[00:01:08] Speaker 02:
On December 8th, 2016, we filed suit to enjoin the lease auction for this wind farm under NEPA and the Outer Continental Shelf Lands Act.

[00:01:20] Speaker 02:
The final sale notice had been published on October 31st.

[00:01:23] Speaker 02:
and the lease sale had been set 45 days later.

[00:01:27] Speaker 02:
The government and the interveners have argued, and the district court below concluded, that the lease and the lease auction were, legally speaking, a non-event.

[00:01:36] Speaker 02:
And on that basis, disposed of our NEPA claims on rightness and our OXLA claims on failure to provide 60-day notice.

[00:01:44] Speaker 02:
the district court aired on both counts.

[00:01:46] Speaker 02:
It's simply not the case under OXLA on our counts four and five that the lease is a non-event.

[00:01:53] Speaker 02:
It's clearly an event.

[00:01:54] Speaker 02:
The lease program is the main purpose of 43 USC 1337 P1, the Energy Policy Act amendments of 2005 specifically set up leasing as the signal element of

[00:02:11] Speaker 02:
the new program to provide authority for BOEM to conduct offshore leasing.

[00:02:18] Speaker 02:
And subsection 1337 P4, which provides for consideration of impacts on other users, specifically applies to any activity and certainly leases any activity.

[00:02:33] Speaker 02:
The court found we had standing

[00:02:34] Speaker 02:
but barred the claim for failure to provide 60 days notice.

[00:02:40] Speaker 02:
And the fundamental issue here is that

[00:02:43] Speaker 02:
BOEM pushed the lease sale through during a presidential transition.

[00:02:47] Speaker 02:
There was only 45 days between the final sale notice and the lease auction.

[00:02:52] Speaker 02:
Generally, yes, claims under the OXLA are supposed to be provided 60 days in advance, but there's an exception set forth at 43 USC 1349A3 for a legal interest immediately affected.

[00:03:06] Speaker 02:
Under OXLA, the appellants have a legal interest and their residents have legal interests in fishing and navigation that's expressly set forth in the state.

[00:03:15] Speaker 01:
The problem for you is the rightness disposition on the first part of the case really is damaging to you on the argument that you're making now.

[00:03:24] Speaker 01:
Nothing has been done to affect what you're complaining about, which is the possibility of wind farms.

[00:03:31] Speaker 01:
That has not been granted.

[00:03:32] Speaker 01:
This is a right to first refusal, as has been said.

[00:03:36] Speaker 01:
It seems to me the record is absolutely clear on that.

[00:03:41] Speaker 01:
They have not been granted permission to do what it is that you complained about.

[00:03:47] Speaker 01:
They have not.

[00:03:51] Speaker 05:
Another way to put Judge Edward's question is, why isn't this case totally controlled by Peterson?

[00:04:00] Speaker 05:
That's what he's asking you, basically.

[00:04:02] Speaker 05:
This is exactly like Peterson.

[00:04:05] Speaker 05:
Well, Peterson needs to be... They said there, you know, the question there was, the question in that case was the energy lease.

[00:04:12] Speaker 05:
It's different here.

[00:04:13] Speaker 05:
But they said, our court said that they didn't mature.

[00:04:18] Speaker 05:
They weren't triggered.

[00:04:22] Speaker 05:
If the lease, I'm quoting from Peterson, if the lease reserved to the government, both the authority to preclude all activities,

[00:04:30] Speaker 05:
ending submission of site-specific proposals and the authority to prevent proposed activities if the environmental consequences were serious.

[00:04:38] Speaker 05:
That's this case.

[00:04:40] Speaker 02:
Right.

[00:04:41] Speaker 05:
That's exactly the case under the lease.

[00:04:43] Speaker 02:
And that makes perfect sense as applied in the oil and gas leasing case.

[00:04:48] Speaker 05:
But we have How could it be different for this kind of lease?

[00:04:54] Speaker 02:
Because in the offshore wind I'm sorry?

[00:04:59] Speaker 05:
I mean, that's like saying the name of the case is different.

[00:05:01] Speaker 02:
There are three principle differences, though.

[00:05:05] Speaker 02:
The first is the difference in the investments that go in before any decision is made on the construction.

[00:05:17] Speaker 05:
Constitutional principles here.

[00:05:19] Speaker 05:
That's what we're talking about.

[00:05:20] Speaker 05:
We're talking about rightness.

[00:05:21] Speaker 05:
It doesn't turn on the amount of money that's invested.

[00:05:24] Speaker 05:
It turns on whether or not there's any injury of this.

[00:05:27] Speaker 05:
Whether or not there's any obligations that have been triggered?

[00:05:31] Speaker 02:
Well, the court, under ripeness principles, also can consider hardship.

[00:05:35] Speaker 02:
It needs to look at the actual facts that BOEM was confronting.

[00:05:42] Speaker 02:
In this instance, hundreds of millions of dollars are going to have been spent on leases, on site assessment, on construction and operations plans.

[00:05:53] Speaker 05:
I'm sorry.

[00:05:54] Speaker 05:
I thought you said in your brief it was $42 million.

[00:05:56] Speaker 02:
It's $42 million plus the costs for site assessment and construction and operations plans.

[00:06:02] Speaker 02:
That's all the costs that will be incurred before BOEM makes any decision whatsoever under NEPA beyond simply a decision on the site assessment plan that we've already seen with an EA.

[00:06:17] Speaker 02:
And what we're saying is that it defies reality to think that after you have gone and spent all that money, made all those years of investments,

[00:06:26] Speaker 02:
that Boehm is going to turn around and say at that point, wow, we really put this lease in the wrong place all along.

[00:06:33] Speaker 02:
That defies reality.

[00:06:34] Speaker 02:
And that's the tension here.

[00:06:36] Speaker 02:
I can understand that Boehm did not want to have what happened to Cape Wind happen again, where they ended up in years of litigation.

[00:06:44] Speaker 02:
They restructured their processes.

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They restructured their lease forms.

[00:06:48] Speaker 02:
But the court can't and shouldn't look at this and not acknowledge reality.

[00:06:54] Speaker 02:
And the other point that

[00:06:55] Speaker 02:
the appellees are making is that this is simply a right of first refusal, as you said, an exclusivity point.

[00:07:06] Speaker 02:
But exclusivity alone doesn't solve the issue.

[00:07:11] Speaker 02:
I could say to you, Your Honor, you would like to buy one Powerball ticket, and you're the only person in the country that's going to buy that Powerball ticket.

[00:07:22] Speaker 02:
You're not going to do it because you spend $43 million to buy it.

[00:07:26] Speaker 02:
You're still not going to buy it because you need to get all six numbers right.

[00:07:29] Speaker 02:
There's an exclusivity needs that comes with expectations.

[00:07:34] Speaker 05:
How is that different from Peterson?

[00:07:45] Speaker 02:
There are hundreds of oil and gas leases that are issued at the same time.

[00:07:50] Speaker 02:
The costs upfront are fundamentally different.

[00:07:54] Speaker 02:
It's just a fundamentally different set of leasing criteria and leasing standards.

[00:08:02] Speaker 02:
You're not spending hundreds of tens and hundreds of millions of dollars upfront.

[00:08:07] Speaker 02:
And those practical realities have to find

[00:08:10] Speaker 02:
have to find the way into the court's analysis at some point because what we're saying fundamentally is the most important issue to the stakeholders in the fishing community, the most important issue is the location of the lease.

[00:08:25] Speaker 02:
And the location of the lease is not going to be considered in any sort of detailed way until the construction and operations planning.

[00:08:36] Speaker 02:
And what we're saying is that if you do that,

[00:08:39] Speaker 02:
You're never going to get a fair shake.

[00:08:41] Speaker 02:
You're never going to get fair consideration of the location.

[00:08:45] Speaker 02:
And this location was decided back in 2011 when.

[00:08:50] Speaker 01:
Why?

[00:08:51] Speaker 01:
Because you think the government agency wouldn't have the guts to back away when at the next stage they were convinced that this cannot be justified.

[00:09:01] Speaker 01:
I mean, that's the heart of your argument.

[00:09:02] Speaker 01:
Absolutely.

[00:09:03] Speaker 01:
We can't trust the government.

[00:09:05] Speaker 01:
Is there any case that says that we can't trust the government?

[00:09:08] Speaker 02:
No, there's no case that says that exactly.

[00:09:11] Speaker 02:
But you also haven't had a situation where, again, the leasing process has been, BOEM went, and it looks to me like they went and they read Peterson and said, let's set this up this way so that we can fall under Peterson.

[00:09:27] Speaker 02:
That's great.

[00:09:28] Speaker 02:
But what they've done is they've turned the oil and gas leasing process on its head.

[00:09:32] Speaker 02:
Because normally, in the unsolicited,

[00:09:38] Speaker 02:
Gas context, EISs are conducted at the lease phase for non-nonsurface occupancy leases, where the presumption is that there's generally going to be an EIS.

[00:09:59] Speaker 02:
And the same thing should hold here is that you can't just say that everything is an exception to the general rule that with leases,

[00:10:09] Speaker 02:
there should be a fulsome consideration of the location upfront.

[00:10:19] Speaker 06:
Are your clients currently still fishing in their fishing areas?

[00:10:23] Speaker 06:
Has that been disrupted?

[00:10:23] Speaker 02:
They're currently still fishing in those fishing areas, yes.

[00:10:26] Speaker 06:
It hasn't been disrupted yet.

[00:10:27] Speaker 02:
It hasn't been disrupted yet.

[00:10:29] Speaker 02:
OK.

[00:10:29] Speaker 02:
What we're saying is that these matters need to be dealt with upfront.

[00:10:36] Speaker 02:
It's just fundamentally different.

[00:10:40] Speaker 06:
Right.

[00:10:43] Speaker 06:
And so when, so your position seems to be that as a practical matter, at some point before, assuming there is an approval of the construction and operation plan, at some point before that, the agency will have made a firm decision to allow some amount of service disturbance or

[00:11:06] Speaker 06:
least enough construction disturbance that's going to actually impair these fisheries, right?

[00:11:11] Speaker 02:
No, we're not making the argument about the site assessment plans.

[00:11:18] Speaker 06:
What we're saying is... I'm not talking about site assessment, I'm talking about... I thought your argument was, come on, we all know

[00:11:27] Speaker 06:
forward momentum isn't going to be stopped at this point, at least in the way that you want, which is a wholesale ban on, I think, I take it you guys want a wholesale ban on fishing in this entire area.

[00:11:38] Speaker 02:
What we want is a fair, full and fair environmental consideration of fishing there.

[00:11:49] Speaker 02:
We never said we wanted a ban.

[00:11:51] Speaker 02:
What we said was we wanted the analyses to be conducted.

[00:11:55] Speaker 02:
We think if the analyses are conducted in a fair way, that BOEM will look someplace else to lease.

[00:12:03] Speaker 06:
All right, so just to clarify then, so your position is that

[00:12:08] Speaker 06:
if a full environmental assessment is done, it's not that they could adjust something about the construction to sort of balance where they put the wind turbines, but that in fact, there's no way to adjust the construction plan or to modify a construction plan that wouldn't have overwhelmingly deleterious effects on

[00:12:38] Speaker 06:
the fisheries?

[00:12:41] Speaker 02:
We're saying that there's no record basis to show that it won't.

[00:12:45] Speaker 06:
But I'm asking a predicate question, and that is because this makes for me at least it's relevant.

[00:12:51] Speaker 06:
And that is, if the question here is, look, once they they've got to do this comprehensive study.

[00:12:59] Speaker 06:
And once they do, they'll be able to tailor this project in a way that will balance

[00:13:05] Speaker 06:
the power interests and our fishing interests.

[00:13:08] Speaker 06:
That's one approach.

[00:13:09] Speaker 06:
Another one is they need to do this comprehensive study because once they do, it's gonna reveal no balancing in the construction and operation process is gonna work.

[00:13:19] Speaker 06:
Having a wind-filled mill farm here at all is going to irrevocably and quite seriously damage our fishing.

[00:13:32] Speaker 06:
Which of those is it?

[00:13:34] Speaker 02:
It could be either.

[00:13:35] Speaker 02:
It could be either.

[00:13:41] Speaker 02:
It could be that you could set it up someplace else, partially or more fully.

[00:13:48] Speaker 02:
But that was never analyzed in any.

[00:13:52] Speaker 01:
You're saying you understand you can lose it, but you feel like it is so important that it must be done.

[00:13:58] Speaker 01:
And if it's done, honestly, we'll see what happens.

[00:14:00] Speaker 01:
That's what your argument is.

[00:14:01] Speaker 02:
That's what our argument is.

[00:14:02] Speaker 02:
OK.

[00:14:04] Speaker 02:
Well, I don't say, again, I'm not making honesty allegations.

[00:14:09] Speaker 01:
No, no.

[00:14:10] Speaker 01:
That was just.

[00:14:12] Speaker 01:
No, I just want to make sure.

[00:14:13] Speaker 01:
Don't over read that word.

[00:14:15] Speaker 01:
You're saying you're entitled to an honest process.

[00:14:19] Speaker 02:
We're entitled to a process where the dice aren't loaded against us.

[00:14:23] Speaker 02:
That's exactly.

[00:14:23] Speaker 02:
I understand.

[00:14:24] Speaker 02:
OK.

[00:14:26] Speaker 05:
OK.

[00:14:27] Speaker 05:
Anything else?

[00:14:28] Speaker 02:
No, thank you.

[00:14:29] Speaker 05:
Thank you.

[00:14:30] Speaker 05:
We're here for the government.

[00:14:36] Speaker 03:
Good morning, Your Honors.

[00:14:36] Speaker 03:
May it please the court, John Smeltzer for the Bureau of Ocean Energy Management.

[00:14:40] Speaker 03:
Your Honors, we believe the district court's judgment should be affirmed because the plaintiff's claims are not right and because plaintiffs failed to comply with Oxlis' 60-day notice requirement.

[00:14:50] Speaker 03:
With respect to NEPA rightness, I think the court understands our argument.

[00:14:55] Speaker 03:
It is based on Peterson, and the argument is that Peterson controls.

[00:15:00] Speaker 03:
And Peterson controls because the lease in this case does both things

[00:15:06] Speaker 03:
that Peterson identified as necessary to do in order to delay or defer NEPA analysis.

[00:15:14] Speaker 03:
And when both those things occur, then there has not been an irreversible and irretrievable.

[00:15:21] Speaker 05:
What about Council's argument that when we look at rightness, we also look at hardship, and the hardship situation here is just dramatically different than in the oil lease situation.

[00:15:32] Speaker 03:
Well, there is no hardship until the construction and operations plan is approved, of course.

[00:15:40] Speaker 01:
No, that's not 42 million dollars.

[00:15:43] Speaker 05:
Right.

[00:15:45] Speaker 01:
Well, like he's making a perfectly plausible argument, the likelihood that are getting what the law in their view requires that is a fair assessment of the project, full and fair assessment.

[00:16:02] Speaker 01:
is dramatically reduced when this much money is being put into it at the front end.

[00:16:07] Speaker 01:
And that is a perfectly plausible argument.

[00:16:10] Speaker 01:
This is millions and millions of dollars.

[00:16:12] Speaker 01:
I'm sure the three of us preparing this case separately scratched our heads and saying, write a first refusal for that many millions of dollars and you may just go down the tube.

[00:16:22] Speaker 01:
They're saying, no, they're not likely to go down the tubes.

[00:16:25] Speaker 01:
And that's exactly our concern that we are entitled to a fair process now.

[00:16:31] Speaker 03:
Sure, your honor, but this process was transparent from the beginning.

[00:16:35] Speaker 03:
The terms of the lease were known.

[00:16:37] Speaker 01:
But they're saying it's no, they're saying it's transparently unfair because you were allowing someone who was investing millions and millions of dollars to get a foot in the door.

[00:16:48] Speaker 01:
And this further right.

[00:16:49] Speaker 01:
First, they claim the first right of first refusal is a joke in their view, because the likelihood of their prevailing now having invested so much is really great.

[00:17:00] Speaker 03:
Well, Your Honor, as I think the Court mentioned, there is no law that says that you pay more for the lease and therefore you need to do it in EIS if the lease meets the Peterson factors.

[00:17:14] Speaker 03:
And what I was trying to say is that there is a presumption of regularity, of course, with how the government operates.

[00:17:20] Speaker 03:
And the government was, in Boehm here, was perfectly transparent in the terms of the lease and in identifying the risks throughout the stage

[00:17:27] Speaker 03:
throughout the process, you know, prior to the lease and identifying to the potential bidders, the risks that existed with respect to potential impacts to fisheries that was transparent identified throughout.

[00:17:39] Speaker 03:
If there had been a guarantee in the lease, your honors, the price of the cost of the lease probably would have been well above the amount that was bid on this lease.

[00:17:50] Speaker 03:
The lease does not have a guarantee.

[00:17:51] Speaker 03:
There is, of course, a sense on the side of the

[00:17:57] Speaker 03:
folks that bid that there is a true prospect here and they are bullish on the opportunities.

[00:18:02] Speaker 03:
But Boehm did not guarantee anything.

[00:18:05] Speaker 03:
The lease language is perfectly transparent that if there are conflicts under the OXLA provisions under section 1337 P4, and if the Boehm determines that there are unacceptable levels of environmental consequences in that context, that a development plan will not be allowed.

[00:18:26] Speaker 06:
Go ahead, finish your sentence.

[00:18:30] Speaker 06:
I'm sorry you hit a button.

[00:18:31] Speaker 03:
I was just going to say there is the ability to examine different alternatives on this leasehold and to mitigate impacts.

[00:18:39] Speaker 03:
And one of the things BOEM determined when they identified this area and decided to go forward with the entire area and not cutting off particular areas from the beginning was that this would not necessarily cut off all access to all fishing, right?

[00:18:54] Speaker 03:
There are ways to mitigate impacts

[00:18:56] Speaker 03:
and do different things.

[00:18:57] Speaker 03:
And what Baum said is we need to study those first in an environmental impact statement.

[00:19:02] Speaker 03:
And that's why we're going forward with this area.

[00:19:05] Speaker 06:
It seems to me.

[00:19:06] Speaker 06:
So one of the arguments, though, is that it's not going to work.

[00:19:10] Speaker 06:
You just can't do it in this area.

[00:19:11] Speaker 06:
These things are too big.

[00:19:12] Speaker 06:
You're not going to be able to tweak it and adjust it here and there.

[00:19:14] Speaker 06:
These things are too massive.

[00:19:17] Speaker 06:
And you haven't seriously considered just doing it somewhere else completely.

[00:19:23] Speaker 06:
I get that you're saying that we can do our environmental study and we can maybe rejigger things and adjust things and ban it a little bit here and make the pylon go over there.

[00:19:34] Speaker 06:
But I want to ask you as to the foundational question of whether a wind farm should be built in this 127-mile square area, period.

[00:19:45] Speaker 06:
Is that part of what will be reconsidered at the construction and operations study stage?

[00:19:50] Speaker 03:
Absolutely.

[00:19:50] Speaker 03:
And that's part of the two parts of the Peterson test.

[00:19:53] Speaker 03:
It's preserving not only the ability to pre-approve or to approve any site-specific plan or any groundbreaking activity.

[00:20:03] Speaker 03:
All oil and gas leases, all federal leases in this area generally have that provision.

[00:20:08] Speaker 03:
The government, the lease itself doesn't allow the groundbreaking activity

[00:20:12] Speaker 03:
The government has the opportunity, the agency has the opportunity.

[00:20:16] Speaker 03:
But in this lease, well, I'm sorry, I don't mean to talk about you, but this lease has the second part, right, where it has the second provision that specifically matches what is said in Peterson.

[00:20:26] Speaker 03:
In addition to reserving that pre-approval,

[00:20:29] Speaker 03:
BOEM here has reserved all of its authority, all of its authority under OXLA, all of its authority generally, to say no to the project if it will have unacceptable environmental consequences.

[00:20:42] Speaker 03:
And that's the difference between this lease.

[00:20:44] Speaker 06:
Okay, that's important.

[00:20:45] Speaker 06:
But my question to you is, what if the Bureau says go forward

[00:20:51] Speaker 06:
And then a court upon reviewing the environmental impact statement says, you've committed very serious error and not considering doing it somewhere else completely.

[00:21:06] Speaker 06:
And all this money has gone into it.

[00:21:08] Speaker 06:
Maybe construction has even gone forward at that point.

[00:21:12] Speaker 06:
It's a very separate question of not just whether the Bureau could decide, but what's the Bureau going to say when a court says vacated?

[00:21:19] Speaker 06:
and all that money and effort has gone in.

[00:21:22] Speaker 06:
Is the government gonna agree?

[00:21:23] Speaker 06:
That's perfectly legitimate thing for the court to do because we had no commitment and this company can't depend on there being a commitment.

[00:21:34] Speaker 03:
This is a right in this case.

[00:21:35] Speaker 03:
And so, yes, that's the position we're taking.

[00:21:37] Speaker 03:
We're taking the position that- We've had this before.

[00:21:39] Speaker 06:
I mean, Judge Edward asked for a case.

[00:21:41] Speaker 06:
I've been on a case with Judge Tatel before where the government came in and said, don't say anything.

[00:21:48] Speaker 06:
Don't say anything.

[00:21:49] Speaker 06:
We promise that if you find serious enough flaws in our environmental impact study toward vacature, we'll be able to undo everything then.

[00:21:59] Speaker 06:
And then when we found very serious flaws in the environmental impact study that warranted vacature, the government and the company came screaming in, don't vacate, don't vacate, look how much has already invested here.

[00:22:13] Speaker 06:
And how do we know that's not what's gonna happen as a practical matter

[00:22:18] Speaker 06:
under these types of leases, the way this is arranged.

[00:22:20] Speaker 06:
That is my real concern.

[00:22:22] Speaker 03:
Right.

[00:22:22] Speaker 03:
Well, first of all, there will be no construction and operations activities until there is the full NEPA EIS process done on that.

[00:22:32] Speaker 06:
Is that good, full judicial?

[00:22:34] Speaker 06:
I get that you might come back and say, don't do it.

[00:22:37] Speaker 06:
I'm concerned about what this process is going to allow is that our ability to do anything other than go along

[00:22:47] Speaker 06:
with an EIS or say remand, but we're not going to vacate because so much literally water here is under the bridge.

[00:22:54] Speaker 06:
or under the turbines, whatever you want to call it, so much water is, so much has already been done, it's just, it's too much for us to give them the relief that, not to put words in their mouths, but if their argument is you can't do it here at all, that decision's no longer on the table.

[00:23:11] Speaker 06:
So what I want to hear from you is not that you're not going to make the decision until you think you've done a sufficient environmental impact study.

[00:23:18] Speaker 06:
What I want to know

[00:23:19] Speaker 06:
is what's the government gonna say if the court, and it may never happen to be clear, but if the court disagrees and it's the type of error that warrants vacature, isn't the reality gonna be that you're gonna oppose vacature just like you did last time on the grounds that too much has already been invested?

[00:23:38] Speaker 03:
Well, I guess the point I was trying to make, Your Honor, is right at the moment that the environmental impact statement is completed and Boehm makes a decision to approve or disapprove

[00:23:48] Speaker 03:
the construction and operations brand.

[00:23:50] Speaker 03:
It is at that point that if there are serious flaws, Mr. Frohlet can come into court at that point and bring a new case.

[00:23:58] Speaker 06:
And it's bad case.

[00:24:00] Speaker 05:
Let me just pick up there, because I have the same concern, Judge, but I've actually taken a different lesson from the James River case that she's mentioning.

[00:24:11] Speaker 05:
And we just had another one last summer with Standing Rock.

[00:24:15] Speaker 05:
pipeline that oil pipeline that goes from Idaho to the Midwest.

[00:24:20] Speaker 05:
In both those cases, we had defective environmental impact statements, yet the construction was proceeding.

[00:24:27] Speaker 05:
The lesson I take from those two cases is that this court ought to be entering injunctions.

[00:24:34] Speaker 05:
Whenever anybody makes a serious challenge to an environmental impact statement, we ought to be enjoining the construction.

[00:24:41] Speaker 05:
And when we do that,

[00:24:42] Speaker 05:
The government agencies are going to scream bloody murder, right?

[00:24:45] Speaker 05:
They're going to say, oh, no, no, don't enjoin the construction of the project.

[00:24:50] Speaker 05:
We can fix the defects.

[00:24:52] Speaker 05:
That's what's going to happen.

[00:24:54] Speaker 03:
Just channel.

[00:24:54] Speaker 03:
That's the question for the next case.

[00:24:56] Speaker 03:
There's no way for me to stand here and tell you what the defects and the environmental effects are going to be.

[00:25:02] Speaker 05:
You're talking to a court that's had some serious experience with this problem in the past few years.

[00:25:07] Speaker 05:
And the lesson I've taken away from this is that we ought to be very serious

[00:25:12] Speaker 05:
about enjoying the construction of these projects when someone makes a serious claim about the adequacy of the environmental impact statement.

[00:25:19] Speaker 05:
That's the point to prevent any future, the kinds of things we face in the James River and the Sammy Rock.

[00:25:26] Speaker 03:
I might disagree with that as an across the boards determination, but again, it's a determination for the next case.

[00:25:34] Speaker 05:
I'm just letting you know of my reaction as well.

[00:25:39] Speaker 03:
I mean, understood and understood, your honor.

[00:25:42] Speaker 03:
It's the difficulty here is, of course, we don't have the record before.

[00:25:47] Speaker 03:
So what are the impacts on these fisheries?

[00:25:49] Speaker 03:
What kind of limitations on access will there be?

[00:25:53] Speaker 03:
What kind of impacts on, you know, their return on on their fishing license and their their ability to fish?

[00:26:00] Speaker 03:
Will there be, you know, what kind of mitigation can there be until all of that is sorted out through a robust environmental analysis, which bone still has to do?

[00:26:10] Speaker 03:
It's very difficult to talk about, you know, should there be an injunction or not?

[00:26:13] Speaker 03:
And of course, I'm not going to agree on behalf of the government that all projects should be enjoying.

[00:26:19] Speaker 05:
I wasn't asking you for that.

[00:26:21] Speaker 05:
Come on.

[00:26:22] Speaker 05:
That's not the point of my question.

[00:26:25] Speaker 05:
The point of my question was to try to explain to you why at least two members of this panel who have just had these cases are concerned about the implications of these things.

[00:26:34] Speaker 03:
That's all.

[00:26:35] Speaker 03:
And I take your point.

[00:26:38] Speaker 03:
My client will understand your point in terms of the analysis to come.

[00:26:44] Speaker 03:
This case ultimately, though, is a case about rightness.

[00:26:47] Speaker 03:
And it's a question about whether a NEPA claim should be heard by this court right now before the fulsome analysis is done.

[00:26:56] Speaker 03:
And the Peterson precedent is clear.

[00:26:58] Speaker 03:
It controls.

[00:26:59] Speaker 06:
I'm going to come back up then.

[00:27:00] Speaker 06:
So my understanding is,

[00:27:02] Speaker 06:
this thing, this case has progressed while the litigation has gone on, which has been the problem in the past as well.

[00:27:08] Speaker 06:
And that you're already at the construct review and a construction and operation plan.

[00:27:12] Speaker 06:
Is that correct?

[00:27:13] Speaker 03:
As my understanding is there is a plan that was submitted.

[00:27:17] Speaker 03:
Mr. Super may have already submitted today.

[00:27:22] Speaker 03:
There has not been

[00:27:24] Speaker 03:
a release of an environmental impact statement.

[00:27:27] Speaker 06:
But the government is actually going to do an environmental impact statement, a full EIS for that.

[00:27:31] Speaker 03:
That's my understanding.

[00:27:32] Speaker 06:
Yes, Your Honor.

[00:27:36] Speaker 05:
OK.

[00:27:36] Speaker 06:
Anything else?

[00:27:37] Speaker 06:
Does the government agree?

[00:27:39] Speaker 06:
Would the government agree?

[00:27:41] Speaker 06:
Because the difficulty here is this litigation, sorry, if I'm correct,

[00:27:48] Speaker 06:
uh has to go through a district court and this up to this field this court too and so that means there's a lot of time and a lot of construction that can happen again before they're ever going to get that that's fundamental question that i take to be the heart of their objection is that it shouldn't be in this area at all is going to get resolved to go forward while there are challenges to the eis and and bomb has not

[00:28:17] Speaker 03:
made a decision that construction can go forward.

[00:28:20] Speaker 03:
So that's the fundamental point about this case and why it's not right.

[00:28:25] Speaker 03:
If BOEM does make a decision, the government and its challenge, then it will depend on the nature of the challenge and the merits of the challenge.

[00:28:35] Speaker 03:
And we'll just have to assess it at that point.

[00:28:39] Speaker 06:
Well, let me put it this way.

[00:28:42] Speaker 06:
Assuming, obviously assuming they comply with all your regulatory legal requirements.

[00:28:46] Speaker 06:
It's easy if they don't, but assuming they meet, they comply with all those, their plan complies with all of those.

[00:28:54] Speaker 06:
If it does, is it at least predictable that a wind farm will be built in this area?

[00:29:00] Speaker 06:
We don't know the precise contours, but if at least they comply with regulatory requirements, is it predictable the wind farm will be built in this area?

[00:29:09] Speaker 03:
Well, Your Honor, I'm not going to handicap the likelihood of construction.

[00:29:15] Speaker 03:
Ohm hasn't decided.

[00:29:16] Speaker 06:
And I'm also not going to say that it's not predictable, even if they comply with all the regulatory requirements.

[00:29:22] Speaker 03:
But when you say when you say whether they comply, I mean, there's compliance in the in the form of providing all the relevant information to assess the impacts.

[00:29:31] Speaker 03:
But when you're talking about the statutory factors under Section 1337 P4,

[00:29:36] Speaker 03:
you know, in terms of balancing impacts on fisheries versus the, you know, the benefits from the wind farm and, you know, other uses of the area and all those sorts of things.

[00:29:45] Speaker 03:
It's not a mechanistic, you know, checking box.

[00:29:48] Speaker 06:
I'm just asking, is it predictable that that could be the outcome?

[00:29:51] Speaker 06:
I'm not certain.

[00:29:53] Speaker 06:
No, you're not agreeing.

[00:29:54] Speaker 06:
You're not, of course you're not signing off on anything.

[00:29:57] Speaker 03:
Look, BOM would not have leased

[00:30:00] Speaker 03:
this area, right, would not have chosen this area to offer for a lease and to give Equinor an exclusive right to present a construction and operation plan if Boehm didn't think there was a decent possibility that the project would go forward.

[00:30:13] Speaker 03:
It wouldn't be in good faith to do so.

[00:30:14] Speaker 03:
So for sure, the industry is bullish on the possibility and Boehm leased this area in the view that there was a good chance that they could find a way of making this work.

[00:30:28] Speaker 03:
I feel like you're trying to walk me into providing some sort of guarantee.

[00:30:34] Speaker 06:
And that's exactly what I'm trying to do.

[00:30:38] Speaker 06:
I'm just asking about, is it predictable?

[00:30:42] Speaker 06:
And I asked that and I thought it sounds like it is.

[00:30:44] Speaker 06:
You're not signed off, you're not guaranteed.

[00:30:46] Speaker 06:
There's gotta be some sort of serious reasonable possibility that this is gonna work here.

[00:30:51] Speaker 06:
No guarantee.

[00:30:52] Speaker 03:
Yeah, sure.

[00:30:54] Speaker 03:
Bo wouldn't have not put the area out for lease

[00:30:58] Speaker 03:
without doing the threshold review determined.

[00:31:02] Speaker 03:
And that's the point I was making earlier.

[00:31:05] Speaker 03:
It's in the record that there's potential fisheries impacts.

[00:31:09] Speaker 03:
And the extent of those potential impacts is in the record.

[00:31:11] Speaker 03:
The request of Mr. Fuller's group to isolate and to set apart particular areas of the lease because of particular impacts on scallop and squid fisheries has been identified in the record.

[00:31:24] Speaker 03:
So those risks are out there.

[00:31:25] Speaker 03:
The potential risks are out there.

[00:31:27] Speaker 03:
BOEM looked at it all and determined at the leasing stage that they didn't preclude putting out a lease on this area because there were potential ways to mitigate those impacts and because in the end it could be determined that this could be the right place for a wind farm.

[00:31:43] Speaker 03:
But reserving all the judgment under the statute and under NEPA to do the analysis.

[00:31:49] Speaker 05:
Let me just ask you a quick, maybe I missed this point earlier, but

[00:31:55] Speaker 05:
Is the next step a site assessment plan?

[00:31:59] Speaker 03:
That has been done, Your Honor.

[00:32:00] Speaker 05:
Is a site assessment plan, why isn't that an irreversible and irretrievable commitment?

[00:32:09] Speaker 05:
That's not?

[00:32:10] Speaker 03:
It could be if Mr. Frilla's group had challenged the impacts of the site assessment.

[00:32:19] Speaker 03:
The site assessment was essentially, you know,

[00:32:22] Speaker 03:
Setting up a weather buoy and some limited equipment and there was never any challenge as to the I mean so sure the impacts of putting out that that equipment to do site assessment.

[00:32:33] Speaker 03:
Have you know have happened those those were done, but those weren't those that was and it's the final point the lease and the regulations treat side assessment, the same way as construction and operations, that is, you need the approval and if.

[00:32:49] Speaker 03:
at the point a site assessment plan is presented, there's no way of proceeding without having unacceptable consequences.

[00:32:56] Speaker 03:
You know, Bones reserved that authority as well, but we have gone past that stage.

[00:33:00] Speaker 05:
I take your point.

[00:33:02] Speaker 05:
Judge Mulatter, Judge Edwards, do you have any questions?

[00:33:04] Speaker 03:
No.

[00:33:05] Speaker 05:
Okay, we'll hear from the intervener.

[00:33:07] Speaker 03:
Thank you, Your Honor.

[00:33:09] Speaker 05:
Equinor, three minutes.

[00:33:12] Speaker 04:
May I please at the court, David Super on behalf of Equinor Wind.

[00:33:15] Speaker 04:
Judge Edwards, I think you hit the nail on the head when you referred to Pellin's argument as effectively being you can't trust the government because I think that's what they're saying.

[00:33:25] Speaker 04:
There's no question that BOEM has the full authority under the lease to reject any activity in the lease interest in terms of constructing a wind farm and that BOEM will conduct a full and complete NEPA analysis at the construction and operation plan stage

[00:33:46] Speaker 04:
And frankly, there will be zero harm ship because all of the stakeholders, including the appellants will have a full opportunity to participate in that process.

[00:33:54] Speaker 04:
So the assumption that the agency will not go through that process, I think is the exact incorrect assumption.

[00:34:01] Speaker 04:
We should assume that that bone will comply with its default obligations.

[00:34:06] Speaker 04:
And I think I'd like to address this notion that

[00:34:11] Speaker 04:
Equinor obtaining approval to actually build a wind farm in the lease area is somehow a foregone conclusion because Equinor has invested resources in the lease.

[00:34:24] Speaker 06:
I don't think anyone says foregone conclusion.

[00:34:26] Speaker 06:
I can't speak for my colleagues, but as I understood their questions and my comments, no one says foregone conclusion.

[00:34:32] Speaker 06:
I do think that is a balance.

[00:34:36] Speaker 06:
for our purposes, at least for now, is it at least a reasonably predictable consequence?

[00:34:42] Speaker 06:
I've got to assume you wouldn't have done this if it wasn't reasonably predictable that this could all work.

[00:34:48] Speaker 06:
You've got to dot your I's and cross your T's and get all your ducks in a row, which I'm assuming your construction operation plan did.

[00:34:55] Speaker 04:
Your Honor, what I can tell you in utmost sincerity is that my client recognizes the risk involved in this project because

[00:35:05] Speaker 04:
BOEM does retain the authority to preclude any construction activities based on- My question is different.

[00:35:12] Speaker 06:
It's not that there's zero risk.

[00:35:14] Speaker 06:
How high is that risk?

[00:35:17] Speaker 06:
How reasonably predictable is it that- I assume you submitted a construction and operation plan that, in your view, fully complies with all statutory regulatory requirements.

[00:35:27] Speaker 04:
We did.

[00:35:28] Speaker 04:
We did.

[00:35:28] Speaker 04:
Because of the risk, actually, BOEM, Ecuador, has spent years developing

[00:35:33] Speaker 04:
a construction and operation plan for submission to BOEM.

[00:35:37] Speaker 04:
And when that plan is subject to review, BOEM, other agencies, the public, really all stakeholders, including the appellants here, can assess the impacts of that construction plan.

[00:35:49] Speaker 04:
And BOEM can decide based on the OXLA factors and based on a full NEPA analysis, whether it's going to let that plan go forward or not.

[00:35:57] Speaker 04:
Yes, Ecuador,

[00:35:59] Speaker 04:
has confidence in the plan, of course, it invested money in it, but that is not to say that it does not recognize the substantial risks that this project may not go forward.

[00:36:08] Speaker 04:
And I think it's important to keep in mind that all of the commitments, financial commitments that have been made toward this project do not include BOEM.

[00:36:18] Speaker 04:
I mean, BOEM has retained under the lease and under its regulations, full authority to review the construction and operation plan

[00:36:26] Speaker 04:
assess it under NEPA, assess it under the OXFLA factors, and decide whether that plan should be allowed to go forward.

[00:36:34] Speaker 04:
So these commitments are commercial commitments made by Equinor, made by the state of New York, but they all recognize that it's up to BOEM to decide whether this project could go forward.

[00:36:46] Speaker 04:
And those commitments have not been made by BOEM.

[00:36:49] Speaker 04:
I think the place to look for the commitments made by BOEM is the plain language of the lease.

[00:36:54] Speaker 04:
And I agree with the court that

[00:36:55] Speaker 04:
Peterson really is on all fours with this case, and it is controlling here.

[00:37:00] Speaker 04:
I see my time is up.

[00:37:02] Speaker 06:
I want to just mention- It's an odd lease, because it has that language, but it also has a 25-year operating term.

[00:37:09] Speaker 04:
Well, the- What's up with that?

[00:37:12] Speaker 04:
Well, what's up with that, Your Honor, is if the plan is never approved by BOEM, then that operating term, that term will be rendered fairly meaningless.

[00:37:25] Speaker 06:
It seems a lot for this lease.

[00:37:29] Speaker 06:
It has a preliminary term, a site assessment term, and then an operations term, and it goes in great detail about operations and payments and more mathematical formula than I can understand.

[00:37:40] Speaker 06:
Certainly.

[00:37:42] Speaker 06:
That seems an awful lot of work to put into a lease that isn't making any decisions.

[00:37:47] Speaker 04:
Well, it's making a decision to grant to Equinor a right of first proposal.

[00:37:52] Speaker 04:
Equinor has the exclusive right to submit

[00:37:55] Speaker 04:
to do site characterization, which it did, to submit a site assessment plan, to submit a construction and operation plan.

[00:38:02] Speaker 04:
The lease provides for a term if that plan is approved, but crucially, the lease reserves to BOEM the full authority to prevent any construction in the lease area.

[00:38:15] Speaker 04:
And if I may, on the OXLA ripeness point, I think it's really important to recognize an answer to your question, Judge Malott,

[00:38:25] Speaker 04:
Appellants are still fishing in the lease area.

[00:38:27] Speaker 04:
The only immediate effect they alleged due to the lease auction was being precluded from entering the lease area and fishing there.

[00:38:38] Speaker 04:
And of course that hasn't happened because at this point with no construction operation plan approved, Ecuador has no right to exclude fisheries from entering the lease area.

[00:38:49] Speaker 04:
They just don't.

[00:38:50] Speaker 04:
So there has been no immediate effect whatsoever as a result of the lease auction.

[00:38:55] Speaker 04:
So, Judge Chuckin was absolutely correct in her analysis on the Oxfam.

[00:39:02] Speaker 05:
Are there any other questions?

[00:39:04] Speaker 05:
Because we're well over time.

[00:39:05] Speaker 05:
Okay.

[00:39:05] Speaker 05:
Thank you.

[00:39:06] Speaker 05:
Thank you.

[00:39:08] Speaker 05:
Mr. Frill, you are out of time, but you can take two minutes.

[00:39:12] Speaker 02:
Thank you.

[00:39:12] Speaker 02:
Thank you, Judge Tatel.

[00:39:14] Speaker 05:
Two minutes.

[00:39:15] Speaker 05:
Right.

[00:39:15] Speaker 02:
Yes.

[00:39:16] Speaker 02:
The first point I'd note is that

[00:39:20] Speaker 02:
OXLA is not controlled by Peterson.

[00:39:22] Speaker 02:
The Massachusetts v. Andrus case looked at OXLA considerations at a point of considering offshore astroling under a similar provision.

[00:39:34] Speaker 02:
So I believe you can, those two claims don't rise or fall together.

[00:39:43] Speaker 02:
A property right is granted at the time a lease is issued.

[00:39:47] Speaker 05:
You have another problem with your aqua, which is the timing.

[00:39:54] Speaker 02:
The timing, we made the decision to file within 60 days because at the point of the lease sale, that's when rights started to accrue.

[00:40:08] Speaker 05:
Do you have anything more you want to say about Peterson?

[00:40:13] Speaker 05:
or the rightness issues for the... A couple of points.

[00:40:22] Speaker 02:
The first is that the poem has only looked within the footprint of the lease.

[00:40:32] Speaker 02:
Any analysis conducted since the unsolicited bid was accepted back in 2011 has looked within the footprint of the lease.

[00:40:42] Speaker 02:
The second point is expectations and reality matter.

[00:40:45] Speaker 02:
The court decided Peterson, but the court

[00:40:48] Speaker 02:
Also, you're an appellate court, and you have the right to look at Peterson and consider it under the facts and circumstances of these cases.

[00:40:56] Speaker 02:
And in terms of impacts and expectations, expectations and reality matter.

[00:41:01] Speaker 02:
New York State has contracted to buy power out of this area already.

[00:41:06] Speaker 02:
So there's a hardship.

[00:41:10] Speaker 02:
It's not a fair consideration.

[00:41:13] Speaker 05:
OK.

[00:41:14] Speaker 05:
All right.

[00:41:15] Speaker 05:
Anything else, Judge Edwards, Judge Martin?

[00:41:17] Speaker 02:
No, thank you.

[00:41:18] Speaker 05:
Okay, thank you.

[00:41:19] Speaker 05:
The case is submitted.