[00:00:01] Speaker 02:
Case number 20-5100, Food and Water Watch, a non-profit corporation, a balance versus United States Department of Agriculture, an agency of the United States government at all.

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Ms.

[00:00:14] Speaker 02:
Heinzen for the appellant, Mr. Buschbacher for the appellees.

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Ms.

[00:00:19] Speaker 05:
Heinzen, good morning.

[00:00:21] Speaker 05:
Good morning.

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May it please the court, Tara Heinzen for Appellant Food and Water Watch.

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The U.S.

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Department of Agriculture's Farm Service Agency guarantees farm loans of last resort.

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loans to farms that could not obtain financing without the government's backing.

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In this case, the agency has guaranteed a more than $1.2 million loan for a large contract chicken operation that raises more than 1 million birds each year for vertically integrated meat company Alan Harim in Caroline County, Maryland.

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This location was selected specifically because it's already home to numerous other Alan Harim chicken operations.

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Though it's adjacent to high quality Watts Creek,

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and both the local Choptank River and the downstream Chesapeake Bay are significantly polluted by agricultural runoff.

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The loan guarantees NEPA environmental assessment, short-changed analysis of the facility's environmental impacts in several ways.

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But first, I'd like to briefly address standing.

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Chief Judge Howell got it right when she found that Food and Water Watch's injury here is redressable because there's no real doubt what the third-party lender and borrower would do in response to the court granting the relief requested.

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which is to vacate the environmental assessment and the loan guarantee.

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In this circuit, a plaintiff need not show to a certainty that a favorable decision will redress its injury.

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A significant increase in likelihood of relief is enough.

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Appellant meets this standard because this is not a case where truly independent third parties are making unfettered choices, as in Lujan.

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leaving the court to speculate that they would agree to conditions included in a new loan guarantee following additional NEPA analysis ordered by the court.

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Ms.

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Hindson, how do we know that a loan guarantee would even be sought again?

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So now this loan's been in place now for several years.

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You know, the farm is an ongoing concern.

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How do we even know that?

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You know, is there any evidence in the record that the bank that the lender would see an addition like another loan guarantee in the current circumstances?

[00:02:18] Speaker 05:
Absolutely, Your Honor.

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First, standing is, of course, judged at the time of the complaint, not under current circumstances.

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And here the agency, the lender and the borrower are all bound up together through the loan guarantee and the loan itself.

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If the guarantee is vacated, the lender has a strong financial interest.

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in restoring the protection of a federal guarantee for the remaining majority of the loans duration.

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At the time of the complaint, they were just two years into a 15 year loan guarantee with more than a million dollars still owed.

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So from the lender's perspective, the interest in a guarantee for a million dollar loan is essentially the same as for a $1.2 million loan.

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and there is a strong indication that their same incentives will apply.

[00:03:00] Speaker 04:
But you say a strong indication, but is there any evidence that the calculation for the bank is the same two years into the loan as at the outset when there's no farm and no ongoing business?

[00:03:14] Speaker 05:
Well, Your Honor, the lender's perspective is not represented in the record directly, but the borrower's incentives at the time of the complaint were even stronger than at the time of the loan.

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Again, we're just two years into a loan of last resort.

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And this borrower had put a lot on the line for this financing, including others' property as collateral.

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So she has the incentive to maintain her home, her collateral, and her business.

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And there's no serious doubt as a result that both the operator and the lender would comply with conditions on a new guarantee to protect these financial relationships.

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The lender's interest here is very much like in Bennett v. Donovan, where the court looked to the lender's financial interests

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allowing the agency, which in that case was HUD, to take over a reverse mortgage.

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In that case, the court found it was reasonable to see that there was a path to redressability because the agency could choose to offer to the bank to take over the loan and that the lender would likely agree to do that.

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Here, the lender's financial incentives are even stronger.

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Was this case decided on summary judgment?

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This case before us today?

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Yes, Your Honor.

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You say standing has to be assessed at the time of the complaint.

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That's true, but misses the point.

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The evidence that can be considered at the complaint stage is your allegations.

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But when you get to the summary judgment, Lujan holds that you have to prove the allegations that establish your standing.

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That doesn't answer the question that Judge Rao raised, which is where is the evidence at summary judgment that any of these scenarios that you're putting forth would possibly or probably come true.

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Well, Your Honor, we did not seek discovery in this case after early in the case.

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Chief Judge Howell found that we had demonstrated redressability based on the information in the record.

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On the basis of the allegations in the complaint, but what about its summary judgment?

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Well, Your Honor, in this case, we didn't think that discovery was necessary because the information in the record at the time of the complaint demonstrates the financial incentives are very strong.

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And the standard for redressability here is that it is likely that the third parties would take this action

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We don't have to demonstrate that to a certainty.

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And this court has repeatedly looked to third parties past actions and their financial incentives in looking to whether they would be likely to act in response to a government action.

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And in this case, under the circuits case law, that should be enough.

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Here there are clear financial incentives in play.

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The agency has essentially tried to make this about the situation today.

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It has speculated that the borrower's finances may have changed dramatically during the pendency of the litigation, but the agency is here trying to reprise its failed mootness argument, and it has not provided any evidence to meet its burden of the case's moot.

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and that the court cannot grant any effectual relief, whatever.

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Ms.

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Hindson, I will ask the department this as well, but I guess I have a concern that this case might be moot under the recently enacted NEPA regulations, right?

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I mean, those provide that loan guarantees and specifically mention FSA loan guarantees as not being major actions

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within NEPA.

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So even if we were to grant the relief that you seek, vacate the loan guarantee and the environmental assessment, why would USDA have to even do another environmental assessment, even assuming that the lender sought a loan guarantee?

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Yes, Your Honor.

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Well, as the agency points out in footnote one of their brief on pages six and seven,

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The Farm Service Agency has stated that it intends to proceed under its status quo of its own agency NEPA regulations.

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I'm aware of that, but the NEPA regulation itself says, let me see, hold on.

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It says that the regulations in the sub-chapter apply to any NEPA process begun after September 14th, 2020.

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Yes, right.

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So a NEPA process, you know, so if they were to issue a new loan guarantee and start a new NEPA process, that would not be an ongoing activity, I think, under the meaning of the new revised NEPA regulations.

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Or I guess, what's your account of why it would be?

[00:07:59] Speaker 05:
Well, Your Honor, the agency's own specific NEPA regulations are still in effect.

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and they still do require an environmental assessment for a facility of this size.

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And so as long as those regulations are still in effect, and of course, the Council on Environmental Quality Regulations are currently in litigation, the agency- Actually, you have a better answer.

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And the answer is that the CEQ, which is a part of the executive office of the president, has no rulemaking authority.

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And so those rules or whatever they are, they're interesting

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but they're not binding on any particular agency.

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And we recognize that problem with CEQ a long time ago in a footnote, an opinion dealing with the building of the bridge south of Washington where an environmental impact statement was required.

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So I don't know that you can, I don't know

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that you even have to distinguish the new NEPA CEQ regulation.

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Thank you, Your Honor.

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If there are no additional questions on standing, I'd like to turn to the merits.

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The agency here failed to take a hard look at the facility's cumulative impacts.

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Here, the circuit case law requires environmental assessments such as this one

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to have a cumulative impacts analysis that considers past, present, and reasonably foreseeable future actions to determine the overall impact that can be expected if individual impacts are allowed to accumulate.

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By definition, cumulative impacts can result from individually minor actions.

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Here, the Farm Service Agency did not conduct any meaningful cumulative impacts review, overlooking the existing concentration and expected future expansion of the areas chicken industry.

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and providing no actual analysis of the facility's incremental impact against this background.

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Regarding past and present actions, the assessment makes clear that this entire project is premised on fostering chicken industry consolidation and the agency is trying to have it both ways by expressly relying on Alan Harim's existing concentration to define this project's purpose and need and to reject alternatives such as other locations while ignoring the cumulative impacts of doing so.

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The assessment does acknowledge that the upper Choptank River and the Chesapeake Bay are impaired by pollution and subject to a Clean Water Act cleanup plan known as the total maximum daily load.

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But this is not enough to salvage the conclusory cumulative impacts analysis here for two main reasons.

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First, assuming that this cleanup plan will account for cumulative impacts overlooks impacts to high quality Watts Creek.

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The total maximum daily load is meant to attain certain water quality standards in the Choptank River and the Chesapeake Bay.

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but it is not intended to ensure that Watts Creek maintains its high water quality.

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Watts Creek is immediately adjacent to the facility and is a waterway one of Food and Water Watch's declarants relies on for fishing every year.

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Second, even if the Bay cleanup plan were an acceptable baseline to look at this project's impacts, establishing the baseline is only the first step.

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This court recently confirmed that the cumulative impacts review requires substantive analysis of how the present impacts of past actions

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would combine and interact with the added impacts of the decision.

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But here, the only place that the assessment discusses the project's pollution in the context of baseline conditions is in stating that surface water quality measures will be implemented in accordance with various permits and the requirements of the total maximum daily loan.

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This simply provides no analysis of impacts at all.

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And this court has repeatedly rejected such simple conclusory statements of no impact.

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This lack of analysis is largely due to the agencies impermissibly substituting other agencies standards and permits for any independent analysis of the farm's cumulative impacts.

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The agency here simply assumes that Maryland agencies permits and the total maximum daily load will ensure no significant impact.

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But this court has established that assuming other agencies permits will ensure no cumulative impact with no independent hard look is arbitrary and capricious

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because relying wholly on other agency standards would render NEPA's procedures superfluous.

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The court further recently held that the existence of permit requirements overseen by another federal agency or state permitting authority cannot substitute.

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for a proper analysis.

[00:12:42] Speaker 04:
Can I just, can you just let me just ask the courtroom deputy have we lost judge Randolph's just a video or also, is he here with us.

[00:12:56] Speaker 03:
That's fine.

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I just didn't want him to miss the argument.

[00:13:02] Speaker 05:
Thank you, Jan.

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This independent analysis by the Farm Service Agency is critical here because the record shows that such chicken confinements do contribute pollution and that the permits at issue here are not meant to result in zero pollution.

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In other words, total maximum daily load or not, this agency decision allows a new source of pollution into several waterways.

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The agency further erred in failing to consider foreseeable future actions.

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The agency itself here plays a role in determining where these chicken operations will locate through its loan guarantees, but it claims that all future impacts are simply too incoherent to evaluate.

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The record contradicts this claim.

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The farm service agency loan officer for this project stated in an email to concerned citizens that there is a land war going on with people buying property to build chicken houses.

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This court held in Delaware Riverkeeper Network v. Perk that an agency need not foresee the unforeseeable, but reasonable forecasting and speculation is implicit in EPA and the court should require that here.

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Similarly, the agency's reliance on draft and generic mitigation plans was arbitrary reaches.

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For an agency to rely on mitigation measures,

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Its reliance must be reasonable, and that means that there must be some evidence and some analysis establishing that the measures will be effective in preventing significant impacts.

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Here, the agency's own regulations further require that mitigation be practical, enforceable, and tailored to fit the specific needs of the action.

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Nonetheless, the agency here relied on draft mitigation measures that were not well enough developed to determine they would be effective,

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and again, failed to ensure that they would be tailored to the project or independently analyze their effectiveness.

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The most stark example is the nutrient management plan.

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The assessment says surface water impacts will be managed by best management practices that will be outlined in a nutrient management plan and conservation plan.

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This nutrient management plan, in turn, can include such open-ended practices as identifying site-specific conservation practices.

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So in effect, this is nothing more than a plan to make a plan.

[00:15:15] Speaker 05:
The court recently rejected just such incomplete mitigation in American River Spiefer and should do so again here.

[00:15:23] Speaker 04:
Ms.

[00:15:24] Speaker 04:
Heisen, I see you are out of time.

[00:15:26] Speaker 04:
If Judge Randolph, do you have any further questions?

[00:15:30] Speaker 00:
No.

[00:15:30] Speaker 04:
OK.

[00:15:31] Speaker 04:
Thank you.

[00:15:32] Speaker 04:
Thank you.

[00:15:34] Speaker 04:
Now here from the government.

[00:15:36] Speaker 01:
Thank you, Your Honor.

[00:15:37] Speaker 01:
May it please the court, my name is Michael Buschbacher from the Justice Department

[00:15:41] Speaker 01:
representing defendant's appellees.

[00:15:43] Speaker 01:
I'd like to begin with standing before turning to the merits.

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Plaintiff hasn't shown how a victory here could lead to redress of any of its alleged injuries.

[00:15:52] Speaker 01:
Now, I wanna focus on one important point that plaintiff didn't talk about, which is the farmer.

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We agree that before she obtained the loan, the farmer had an incentive to support the lender's application for a loan guarantee.

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Without that guarantee,

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she probably would not have gotten the loan and then might not have been able to start the farm.

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But that incentive evaporated once she received the loan more than five years ago.

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Under Lujan, the burden is now on plaintiff to present affirmative evidence showing why the farmer and the lender, after having executed that loan agreement, would nevertheless be likely to agree to new and for the farmer potentially costly mitigation measures.

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Vagantor of the guarantee itself doesn't get plaintiff what it wants.

[00:16:37] Speaker 01:
Vegator would change the risk allocation between the government and the lender, but it wouldn't affect the validity of the loan unless one of two things were the case.

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The first is that there's some kind of contract provision that the farmer agreed to that would put something like that in effect.

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And the other is if the agency itself had the legal authority to impose new conditions on the loan.

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Plaintiff hasn't made any contract arguments here.

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So option one's not at issue.

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And as for option two,

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Plaintiff is just incorrect in its brief where it talks about the regulations that Farm Service Agency had in place at the time, 7 CFR section 1940.318G and M. Neither of those subsections authorizes the agency to impose new requirements on a loan agreement.

[00:17:22] Speaker 01:
Subsection G, that applies only to ongoing applications.

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As Judge Rao pointed out, why would the parties here, or not the parties, the non-parties,

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the farmer and the lender agreed to start that process again, especially for the farmer.

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She has no incentive to do so since there's only a downside that's in the offing for her because there's a likelihood that she would have to comply with new and potentially costly mitigation measures, but she wouldn't get anything in return.

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She already has the loan.

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So there's no evidence that they've pointed to that would show that there is some reason why the parties would

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to that agreement would again seek a new loan guarantee.

[00:18:07] Speaker 01:
As for subsection M, I think that's where plaintiff put the most emphasis in its brief, but that also doesn't allow for changing executed contracts, certainly not contracts like the loan agreement, which are between the lender and the farmer in which the agency is not a party to.

[00:18:28] Speaker 01:
That provision just says that the approving official should consider comments and other information that's received after an approval has been issued.

[00:18:36] Speaker 00:
Did the Farm Service Agency or Agriculture adopt the new amendment by CEQ to their regulations?

[00:18:51] Speaker 01:
So the new CEQ regulations do purport to be binding on all federal agencies, including Farm Service Agency.

[00:19:01] Speaker 01:
It's currently actually a case before the District Court of DC about the scope of how that interacts with the agency's own regulations.

[00:19:13] Speaker 01:
The United States's position there is that the Farm Service Agency's current regulations continue to govern.

[00:19:22] Speaker 01:
To Judge Rao's point earlier about- What is the basis for the- I'm sorry.

[00:19:30] Speaker 00:
You recognize that CEQ traces its authority, even in the most recent iteration of the regulations, to no federal statute.

[00:19:39] Speaker 00:
It's an executive order that Jimmy Carter, President Carter issued setting them up.

[00:19:48] Speaker 01:
Yes.

[00:19:50] Speaker 01:
I do recognize that.

[00:19:51] Speaker 01:
Like I said, there is a dispute about whether the new NEPA regulations require FSA immediately to implement those restrictions about loan guarantees or whether the agency can bind itself by issuing new regs.

[00:20:13] Speaker 01:
And at that point, the change happens.

[00:20:15] Speaker 01:
I don't know if that makes sense, but the dispute is about

[00:20:18] Speaker 01:
That case is about ripeness and whether the CEQ regulations are sufficient to make a right dispute.

[00:20:26] Speaker 04:
Is that the government's position that the CEQ regulations are binding on other agencies or not binding?

[00:20:35] Speaker 01:
Yes, they are binding.

[00:20:38] Speaker 04:
That is the government's position.

[00:20:39] Speaker 01:
That is the government's position.

[00:20:43] Speaker 00:
The question here is- That's a new position, a relatively new position.

[00:20:49] Speaker 00:
I can tell you from personal experience back in the ancient past, the government's position was that they were not binding.

[00:21:00] Speaker 01:
Ultimately, I think that that point is not relevant here.

[00:21:06] Speaker 01:
This is not a procedural injury standing argument.

[00:21:11] Speaker 01:
in the sense that there are third parties whose independent conduct is really where the focus is.

[00:21:18] Speaker 01:
For the purpose of standing, when it comes to getting what they want from the agency, we're not contesting that they could get a different result.

[00:21:31] Speaker 01:
That's been our position in this lawsuit.

[00:21:33] Speaker 01:
And certainly that was the case at the time.

[00:21:37] Speaker 04:
Is relevant for us, I mean, in terms of mootness, though, because if the CEQ regulations are binding, then I think there's a live question of mootness.

[00:21:47] Speaker 04:
I mean, they may not be binding for the reasons that Judge Randolph gives, but if they were binding, then would this case be moot?

[00:21:59] Speaker 01:
I think so, Your Honor.

[00:22:00] Speaker 01:
I think that it would be mooted if it's binding and the agency doesn't have discretion to wait to implement it pending its further regulations.

[00:22:13] Speaker 01:
So I think that second point's crucial.

[00:22:15] Speaker 04:
And what's your argument on the second point?

[00:22:20] Speaker 01:
On the second point of

[00:22:22] Speaker 01:
Of what?

[00:22:23] Speaker 01:
I'm sorry.

[00:22:23] Speaker 04:
About whether the agency has, whether the agency must follow the new regulations now before complicating its own regulations.

[00:22:32] Speaker 01:
We certainly believe that the agency has an obligation to follow NEPA and the new regulations.

[00:22:39] Speaker 01:
Our position is that the, I'm sorry, it's been a while since I've looked at the briefing in that other case.

[00:22:44] Speaker 01:
Our position is that those farm service agency regs that they are

[00:22:50] Speaker 01:
working on and will promulgate that it's not in conflict with the new NEPA for them to do that.

[00:22:57] Speaker 00:
Yeah.

[00:22:57] Speaker 00:
I have to interject that I recognize in talking about the validity of a CEQ regulation or the binding effect that there's some language in a Supreme Court case or our cases saying that they're binding or they're mandatory or whatever, but I kind of view that in the same way as if the court takes jurisdiction without

[00:23:18] Speaker 00:
considering the underlying problems with asserting jurisdiction.

[00:23:24] Speaker 00:
So I don't know that those cases are necessarily conclusive in race judicata or whatever collateral estoppel cases.

[00:23:32] Speaker 01:
So.

[00:23:36] Speaker 01:
Your honor, I would just say that because you can consider questions of mootness and standing in any order that you want,

[00:23:45] Speaker 01:
we would ask you to look at our standing argument first before considering any mootness arguments to respond to.

[00:23:51] Speaker 01:
And on the standing point, they just don't have the evidence.

[00:23:56] Speaker 01:
It is, as Judge Randolph pointed out, their burden to come forward with something showing why they could get redress.

[00:24:04] Speaker 01:
And they haven't done that.

[00:24:06] Speaker 01:
And we certainly agree that the relevant point in time for that is when they filed suit.

[00:24:11] Speaker 01:
And our brief says exactly that, and they've

[00:24:14] Speaker 01:
only selectively quoted it in their brief to suggest otherwise.

[00:24:18] Speaker 01:
We've said all along that from the time they filed suit through today, they don't have what it takes to demonstrate standing.

[00:24:25] Speaker 01:
And before turning the merits, I just want to respond quickly to that idea that the parties, the FSA and the farmer and the lender are all bound together.

[00:24:38] Speaker 01:
Well, they're bound together in one sense, but not in the sense that they all went through the loan guarantee process the first time.

[00:24:44] Speaker 01:
And that there's an executed loan guarantee, and there's an executed loan agreement.

[00:24:48] Speaker 01:
But they're not bound in some sort of future sense.

[00:24:50] Speaker 01:
They're not required to go forward and engage again in some renewed process here.

[00:24:55] Speaker 01:
That process is entirely voluntary.

[00:24:58] Speaker 01:
This is not, as the district court I think thought, a case where there's some sort of regulation in place.

[00:25:03] Speaker 01:
This is simply a voluntary thing.

[00:25:05] Speaker 01:
Anything that happens in those discussions that leads to an agreement,

[00:25:11] Speaker 01:
what's binding on the parties is a result of a contract, not a regulation.

[00:25:17] Speaker 01:
So turning to the merits, I think there's a lot that's going on in the brief, but there's really, I think, only one thing that you need to know.

[00:25:25] Speaker 00:
I just want to go back to a little bit about the redressability question.

[00:25:29] Speaker 00:
Yes, Your Honor.

[00:25:31] Speaker 00:
Suppose the district court issued an order staying the effect, holding that the loan guarantee

[00:25:42] Speaker 00:
was void, but staying the effect of that until the parties or until the environmental assessment was redone.

[00:25:53] Speaker 00:
Would the case be, would there be a standing problem then?

[00:25:57] Speaker 01:
The standing problem here doesn't stem from anything that would happen before the agency.

[00:26:03] Speaker 01:
The standing problem here in terms of reconsidering the EA, the standing problem here is that there is nothing to suggest

[00:26:12] Speaker 01:
certainly nothing plaintiff is pointed to, that the farmer would have any incentive to agree to bind itself to potentially costly new mitigation measures when it gets nothing in return.

[00:26:24] Speaker 00:
That assumes that there's going to be more costly mitigation methods.

[00:26:31] Speaker 01:
Well, that's what I'm assuming that because on a procedural injury case, the way to look at what the agency does is to just assume that

[00:26:42] Speaker 01:
the plaintiff gets kind of the best case result.

[00:26:46] Speaker 00:
The best case result in an environmental impact or even assessment case is informational.

[00:26:56] Speaker 00:
That the agency, namely the Farm Service Agency, will get more information before it again makes its decision.

[00:27:06] Speaker 01:
I think plaintiffs not looking for information.

[00:27:08] Speaker 01:
They haven't alleged an informational injury here.

[00:27:11] Speaker 01:
Their point is that we either shut down the farm by bringing the suit, or we at least get some kind of mitigation measures.

[00:27:19] Speaker 01:
That's the redress that they're seeking.

[00:27:21] Speaker 01:
They're not seeking additional information.

[00:27:24] Speaker 00:
But even if the assessment turned out to show that there's going to be massive pollution in the Chesapeake Bay as a result of this farm, the Farm Service Agency can still go forward.

[00:27:39] Speaker 01:
It certainly can still go forward, Your Honor.

[00:27:43] Speaker 01:
The regulations that were in place at the time did encourage the agency to consider mitigation measures.

[00:27:49] Speaker 01:
And so that's why, instead of putting our argument into fighting how exactly the agency might be able to resolve things and what the scope of that would be, the clearer point here is that there's just nothing that's in the record that shows that the farmer would

[00:28:07] Speaker 01:
have any incentive to do anything.

[00:28:08] Speaker 01:
And that's really all you need to know.

[00:28:10] Speaker 01:
All those other points are true and worth considering, I think.

[00:28:14] Speaker 01:
But the easiest point here is just that last one, in my opinion, at least.

[00:28:21] Speaker 01:
I've only got a couple of minutes left, so I want to quickly hit on the merits, if that's all right with you.

[00:28:27] Speaker 01:
I think the crucial point here is plaintiff has not renewed their hard look objection.

[00:28:35] Speaker 01:
So if the agency reasonably determined that the design features of the farm made it likely that it would have only minimal and localized negative effects, you can find that determination on joint appendix page 669 through 70.

[00:28:50] Speaker 01:
If that's correct and plaintiff hasn't appealed the district court's decision on that point, if that's the case, then the cumulative impacts analysis is quite simple simply because

[00:29:04] Speaker 01:
cumulative impacts looks at incremental impact.

[00:29:08] Speaker 01:
If there's no incremental impact from the farm and in any of the areas that they're concerned about, that puts an end to the inquiry.

[00:29:19] Speaker 01:
And now I grant, of course, that the agency didn't say that there would be zero impact and some kind of metaphysical certainty, but I point the court to

[00:29:30] Speaker 01:
which said that when the project itself is expected to have minimal impacts, no significant cumulative impacts from related actions need to be considered.

[00:29:39] Speaker 01:
And I think the agency did look at a lot of other things, including the TMDL in Caroline County more generally in the upper Choctang.

[00:29:46] Speaker 01:
But the point here that's most crucial is that if you have only minimal impacts, there's nothing to add to those that makes it significant.

[00:29:56] Speaker 00:
And that- And Kleppe versus Sierra Club held

[00:29:59] Speaker 00:
that the determination of the geographic scope and cumulative impact is up to the agency to decide?

[00:30:05] Speaker 01:
That's correct, Your Honor.

[00:30:06] Speaker 01:
And I would say that there's two parts to the geographic analysis.

[00:30:12] Speaker 01:
One is looking at the scope and looking for what kind of effects might be out there.

[00:30:17] Speaker 01:
And the second is actually determining where the effects are going to fall.

[00:30:21] Speaker 01:
So when the plaintiff tries to conflict these two points, I think,

[00:30:25] Speaker 01:
But when you think about it, the consideration of all the stuff more broadly was just a part of the agency's determination that, in fact, this farm has only minimal and localized impacts.

[00:30:38] Speaker 01:
And that's disposite.

[00:30:39] Speaker 01:
I see my time has run out.

[00:30:43] Speaker 01:
If there are any other questions, I'd be happy to answer them.

[00:30:45] Speaker 01:
Otherwise, I guess I'm already sitting down.

[00:30:48] Speaker 01:
But I'll sit down.

[00:30:51] Speaker 04:
Judge Randolph?

[00:30:52] Speaker 04:
No.

[00:30:53] Speaker 04:
Thank you, Mr. Buschbacher.

[00:30:54] Speaker 01:
Thank you, Your Honor.

[00:31:03] Speaker 04:
Johnson, we'll give you two minutes for rebuttal.

[00:31:06] Speaker 05:
Thank you, Your Honor.

[00:31:06] Speaker 05:
On the cumulative impacts point, finding that a facility will not have significant impacts on its own does not mean that it cannot have cumulatively significant impacts.

[00:31:16] Speaker 05:
And the district court got this point wrong.

[00:31:18] Speaker 05:
In the Mini Sync case, this circuit found that a facility would not have individually significant impacts.

[00:31:25] Speaker 05:
And it also found that it would not have cumulatively significant impacts.

[00:31:28] Speaker 05:
But that case was

[00:31:30] Speaker 05:
in large part determined because the impacts of concern had to do with construction and the timing of the different projects were different.

[00:31:37] Speaker 05:
So the impacts did not aggregate.

[00:31:40] Speaker 05:
The district court aired as a matter of law in finding that a facility without significant impacts on its own could not have cumulatively significant impacts and permits that purport to minimize impacts don't change that analysis.

[00:31:52] Speaker 05:
This is the entire point of the cumulative impacts review.

[00:31:57] Speaker 05:
On the question of whether staying in order to vacate the guarantee would cause a standing problem.

[00:32:03] Speaker 05:
I believe it would not because standing is evaluated, assuming that the plaintiff will get the relief requested.

[00:32:10] Speaker 05:
The court did the same thing in Friends of the Earth VEPA where it vacated a total maximum daily load.

[00:32:18] Speaker 05:
and then stayed that so that there would be protections in place for the waterway.

[00:32:22] Speaker 00:
Would you define for me what you are claiming is the harm to the members of your organization?

[00:32:31] Speaker 05:
The injuries here.

[00:32:32] Speaker 00:
From the failure to properly prepare an environmental assessment.

[00:32:37] Speaker 05:
Yes, your honor.

[00:32:38] Speaker 05:
So this is a procedural injury from the agency, but the injury in fact experienced by our members.

[00:32:44] Speaker 05:
Mary Lou Miller lives next door to this facility and in her declaration, she has suffered injuries related to odor and flies and noise and bright lights.

[00:32:55] Speaker 05:
impacted on a day-to-day basis, her quality of life has suffered.

[00:32:59] Speaker 00:
Our other member declared- But I thought in environmental impact statements and environmental assessments that the ultimate decision of the agency is not up to an environmental impact statement and it's not up to an environmental assessment.

[00:33:15] Speaker 00:
All they're designed to do is provide information to the agency on which to make its decision.

[00:33:22] Speaker 00:
So the injury that you're defining, it doesn't seem to me to be connected to the purpose of an environmental impact statement.

[00:33:32] Speaker 00:
The purpose is to give information to the agency.

[00:33:35] Speaker 00:
And you as, or members, your members' injury, it seems to me, would be that the agency went ahead and made a decision without having sufficient information.

[00:33:46] Speaker 05:
Well, Your Honor, we meet the relaxed redressability standard

[00:33:51] Speaker 05:
under NEPA for the agency's action here.

[00:33:53] Speaker 05:
But we have to satisfy the normal regressibility standard to show that if the agency were to impose additional guarantee conditions following NEPA analysis, we don't have to show that they would.

[00:34:05] Speaker 05:
But if they do, we do have to show that it's likely that the third parties here would agree to those conditions.

[00:34:10] Speaker 05:
And we believe we've done so in this case.

[00:34:12] Speaker 05:
And I see that I'm out of time.

[00:34:14] Speaker 00:
OK.

[00:34:15] Speaker 05:
Thank you.

[00:34:16] Speaker 00:
Thank you.

[00:34:16] Speaker 04:
Case is submitted.