[00:00:00] Speaker 03:
states number 20-19-EDALT, Eagle County, Colorado, City Center, versus Surface Transportation Board and United States of America.

[00:00:10] Speaker 03:
Mr. Hunt for City Center, Eagle County, Colorado, Ms.

[00:00:14] Speaker 03:
Hart for City Center Center for Biological Diversity EDALT, Ms.

[00:00:18] Speaker 03:
Miller for the Respondent Surface Transportation Board, Mr. Heminger for the Respondent Station Wildlife Services, Mr. Johnson for the Respondent Interveners, Seven County Infrastructure Coalition EDALT.

[00:00:36] Speaker 02:
Good morning, Your Honors.

[00:00:38] Speaker 02:
On behalf of Petitioner Eagle County, Colorado, I'm Nate Hunt.

[00:00:44] Speaker 02:
350,000 barrels crude oil will be transported in 18 miles of trains each day across Colorado and the West under the Uinta Basin Railway Project.

[00:01:02] Speaker 02:
With that in perspective, 350,000 barrels a day equals 14.7 million gallons of oil that we transfer every day of the year onto the project.

[00:01:14] Speaker 02:
In approving the project, the Surface Transportation Board failed to evaluate the downline environmental impacts caused by that rail traffic and the cargo it carries.

[00:01:27] Speaker 02:
Most notably, the board failed to evaluate the impacts to water resources along the existing Union Pacific line, including the Colorado River, which runs right next to the Union Pacific line for over 200 miles of the downline segment.

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Substantial evidence in the record demanded that the board take a hard look at the impacts of the Colorado River, other water resources downline, as well as biological resources.

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The board's own Office of the Environmental Analysis determined that the railway, under the railway, it will double the accidents on the existing Union Pacific line.

[00:02:07] Speaker 02:
And if the project moves forward, the railway will cause three times more accidents on the Union Pacific line than on the proposed Utah line in the Utah study area.

[00:02:24] Speaker 02:
And yet the board limited its analysis to water resources to only the new proposed line in the Utah study area.

[00:02:32] Speaker 02:
That was arbitrary, particularly when the board and the Office of Environmental Analysis was on notice that there could be potential significant impacts to the Call River and other downline resources.

[00:02:47] Speaker 02:
Colorado's Department of Public Health and the Environment, the state's top environmental agency, warned the board, the Colorado River, you need to take a hard look at the environmental impacts of this rail traffic on the Colorado River because of its sensitivity, because of its ecosystem, because the state and the West relies on the tourism and recreation on the Colorado River.

[00:03:11] Speaker 09:
I'd like you to address jurisdiction, particularly whether

[00:03:18] Speaker 09:
Your client is a party aggrieved under the Hobbs Act.

[00:03:22] Speaker 09:
I get the aggrieved part, but are you a party within the statutory definition of that term as interpreted by our precedent?

[00:03:35] Speaker 09:
And I guess I'll just cut to the chase.

[00:03:38] Speaker 09:
I think it's the board's brief at page 76 points out

[00:03:45] Speaker 09:
that the county did not submit a reply to the exemption petition.

[00:03:51] Speaker 09:
The center did, but the county did not.

[00:03:57] Speaker 09:
And given that, should we conclude that the county is not a party agree because it didn't

[00:04:08] Speaker 09:
engage as a party in the exemption proceeding?

[00:04:13] Speaker 02:
The party engaged in filing a petition for reconsideration of the board's initial preliminary decision.

[00:04:21] Speaker 02:
So it did participate as a party when it filed a petition for reconsideration.

[00:04:27] Speaker 02:
But along those lines, although this court, I'm not aware of a decision that this court has addressed this, but the Alaska Survival Ninth Circuit case

[00:04:37] Speaker 02:
said that you do not, that a party does not need to participate necessarily in the proceedings for an exemption under the Act simply because of the informal nature of an exemption proceeding.

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And another related point is that the board in, at Joint Pegasus page 4 in its preliminary decision in Joint Appendix page 26

[00:05:02] Speaker 02:
The board acknowledged that Eagle County as a party implicitly by stating that all comments submitted on the exemption proceeding, as well as on the final EIS and draft EIS under NEPA, those are compiled and considered as part of the board's record.

[00:05:23] Speaker 06:
You participated in the EIS process?

[00:05:26] Speaker 02:
Absolutely.

[00:05:34] Speaker 06:
Can I ask you?

[00:05:36] Speaker 06:
You argue in your brief about the standard for the preliminary exemption or conditional exemption decision wasn't met.

[00:05:55] Speaker 06:
I'm having trouble understanding at this point where we are now

[00:06:01] Speaker 06:
why that matters because we have a final exemption decision which would sort of carry with it everything that went before.

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And it's not even clear to me what you get from a conditional exemption.

[00:06:19] Speaker 06:
They can't start building anything.

[00:06:22] Speaker 06:
So I'm just not sure what the harm is from the conditional exemption that you're trying to remedy.

[00:06:30] Speaker 06:
And if not, then why do we need to decide whether they appropriately issued a conditional exemption since

[00:06:40] Speaker 06:
everything done.

[00:06:42] Speaker 06:
You can talk about the merits of whether they appropriately reconsider things or analyze things properly at that stage, but what does it matter?

[00:06:49] Speaker 02:
It matters in terms of the preliminary decision was incorporated in the final decision.

[00:06:55] Speaker 02:
The reason why the Surface Transportation Board instituted a policy in 2007 in the Alaska Railroad case

[00:07:04] Speaker 02:
is because it was trying to prevent putting the thumb on the transportation merits.

[00:07:13] Speaker 02:
In other words, prejudging the merits of a project.

[00:07:17] Speaker 02:
This is precisely the reason why that policy was enacted because

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you don't, the board was prevented from conducting a transportation policy analysis based on the entire record.

[00:07:36] Speaker 06:
It was prevented or just?

[00:07:38] Speaker 02:
It was.

[00:07:39] Speaker 02:
The board did not.

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The board failed to conduct.

[00:07:42] Speaker 06:
That's a different argument.

[00:07:42] Speaker 06:
That's when you make about the final exemption decision.

[00:07:48] Speaker 06:
You can say they did or didn't do a good enough

[00:07:50] Speaker 02:
Well, it goes to the merits of the final decision.

[00:07:55] Speaker 06:
Even if they hadn't done the conditional exemption, plenty of people will look at an exemption decision and people will disagree one way or the other and say you didn't analyze X or Y well enough and nothing about the conditional exemption affects your ability to argue after the board made that final exemption decision that you didn't analyze this as the law required.

[00:08:16] Speaker 06:
And whether they did it because they done a preliminary one or they just didn't do the job right or I'm not saying they did it for argument purposes.

[00:08:23] Speaker 02:
To be clear, we're challenging the final decision.

[00:08:25] Speaker 06:
Right.

[00:08:25] Speaker 02:
It just incorporated the preliminary decision.

[00:08:28] Speaker 02:
And in the final decision, the board said the board did not revisit the transportation merit policies.

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did not revisit the merits of those and did not compare those policies with the environmental relevant policies in an even balanced way.

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And that's one of the flaws in the final decision.

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And that was the reason why the board enacted the policy against conditionally granting approval because the risk of clouding the

[00:09:02] Speaker 02:
a final decision outweigh any benefits of conditionally granting approval to a project that cannot proceed without a final decision.

[00:09:16] Speaker 06:
Just ask it this way.

[00:09:18] Speaker 06:
If we were to decide you were right that they had done improperly done a conditional exemption, but you were wrong about

[00:09:30] Speaker 06:
the merits of their final exemption decision.

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Just assume for these purposes of this question.

[00:09:37] Speaker 06:
We thought they had done the right transportation merits analysis and the right balancing.

[00:09:42] Speaker 06:
Is there any relief we could afford for them having done at this stage for them having done the conditional exemption?

[00:09:52] Speaker 02:
No.

[00:09:53] Speaker 02:
We raised that issue because under the Administrative Procedure Act, when an agency goes against its policy, its practices, it needs to provide an adequate explanation.

[00:10:08] Speaker 02:
That's just one of the, and so we raised that.

[00:10:10] Speaker 06:
You just said there's no remedy we could give for an improper conditional exemption at this point.

[00:10:15] Speaker 02:
Right, but you could still consider it as an arbitrary measure as part of the overall final decision.

[00:10:21] Speaker 07:
So the interrelationship between NEPA claims, ESA claims, and the RAIL Act claims is a little bit unclear to me.

[00:10:35] Speaker 07:
So you argue that the NEPA analysis was inadequate for failure to consider the water effects and the fish effects along the Colorado River downstream.

[00:10:48] Speaker 07:
of the project, right?

[00:10:50] Speaker 07:
Correct.

[00:10:50] Speaker 07:
And I take it you've also argued that the failure, the deferral of consideration of the geological hazards violates NEPA.

[00:11:00] Speaker 07:
Is that right?

[00:11:01] Speaker 02:
Yes, that's a co-petitioner's argument.

[00:11:03] Speaker 02:
OK.

[00:11:03] Speaker 07:
Yes.

[00:11:05] Speaker 07:
But I also take you to see the various things like the greenhouse gas emissions, which were identified in the environmental analysis

[00:11:17] Speaker 07:
but then not weighed in the rail policy.

[00:11:22] Speaker 07:
So is the claim that even if something's adequately surfaced in the NEPA

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analysis that the fact that it may be adequate for NEPA purposes doesn't mean that it's been adequately considered in the decision under review.

[00:11:37] Speaker 07:
Is that part of the nature of your claim?

[00:11:40] Speaker 02:
Yes, exactly.

[00:11:41] Speaker 02:
There are two different statutes with two different processes.

[00:11:48] Speaker 02:
NEPA is a procedural statute.

[00:11:50] Speaker 02:
Here, the board found significant impacts, significant impacts to water resources and other things.

[00:12:00] Speaker 02:
It's our position that they didn't meet the standards for NEPA, but that is a separate decision in the substantive analysis that's required by

[00:12:11] Speaker 02:
the Interstate Commerce Commission Termination Act, which is that you must, that the board must conduct a substantive analysis of the relevant rail policies.

[00:12:22] Speaker 02:
And as part of that analysis, weighing the transportation merits versus the environmental harms.

[00:12:29] Speaker 07:
There's this whole argument about cumulative versus indirect effects and the respondents say, you know, they were considered, they were considered in the same way.

[00:12:41] Speaker 07:
It's not entirely clear to me what the argument is about the impropriety of cumulative.

[00:12:48] Speaker 07:
I take it that one way of understanding what they did was they said, yeah, we're recognizing these other effects, but only as raising the baseline against which project effects are then evaluated as an additional increment.

[00:13:06] Speaker 07:
That would be a very different consideration, but they're also talking about the effects as effects of the project.

[00:13:13] Speaker 07:
And so could you just help me understand what's at stake and where it's reflected in the record that they under weighed the effects, for example, climate effects by treating them as cumulative rather than indirect.

[00:13:32] Speaker 02:
I will, to the extent I acknowledge that that's a claim that co-petitioners are, I'm sure, going to want to address.

[00:13:39] Speaker 02:
But you also raise that claim.

[00:13:41] Speaker 02:
No, we have not.

[00:13:42] Speaker 02:
I'm sorry.

[00:13:43] Speaker 02:
But I'm happy to discuss it.

[00:13:44] Speaker 07:
I'm sorry.

[00:13:45] Speaker 07:
I'll ask co-petitioners.

[00:13:47] Speaker 02:
That our claims have to do with indirect effects, not how they're categorized.

[00:13:54] Speaker 07:
Not also the improper characterization of effects.

[00:13:58] Speaker 02:
Correct.

[00:13:59] Speaker 02:
Correct.

[00:13:59] Speaker 02:
Our claims focus on water resources.

[00:14:02] Speaker 02:
They focus on biological resources.

[00:14:04] Speaker 02:
They focus on downline impacts to land use and recreation.

[00:14:09] Speaker 02:
And so our claims do not touch upon the distinction between indirect and cumulative.

[00:14:16] Speaker 07:
Focusing on the Interstate Commerce Commission, on the RAIL Act, the policies that you say that they didn't consider, you're focusing on health and safety?

[00:14:31] Speaker 02:
They based the decision on six rail policy factors.

[00:14:41] Speaker 02:
Our position is that their analysis of rail policy factor dealing with enhancement of competition, the rail policy dealing with the improvement or enhancement of economic conditions in rail were woefully inadequate.

[00:15:01] Speaker 02:
The two environmental-related rail policy issues that we have claimed they did not adequately consider, especially in the top context of all the rail policies, are the public health and safety rail policy and worker safety.

[00:15:22] Speaker 02:
And the board takes a very broad approach to those.

[00:15:28] Speaker 02:
Here the board considered the environmental effects down lines such as wildfires and rail safety under those.

[00:15:40] Speaker 02:
But those are the two environmental related rail policies that the board did not address in its preliminary decision.

[00:15:48] Speaker 02:
It pointed those to the final decision.

[00:15:52] Speaker 07:
And how are they inadequately assessed in the final decision.

[00:15:58] Speaker 02:
Which one are you.

[00:16:00] Speaker 07:
You just mentioned wildfires.

[00:16:02] Speaker 07:
You mentioned two, wildfires and accidents.

[00:16:05] Speaker 02:
I'd also like to address the first two as well.

[00:16:10] Speaker 07:
Address them all.

[00:16:11] Speaker 02:
Yes.

[00:16:11] Speaker 02:
Well, I'll address the first one, which is enhancement of competition in rail between conventional rail and other modes of transportation.

[00:16:26] Speaker 02:
Board found the preliminary decision.

[00:16:28] Speaker 02:
This is going to enhance competition in the region.

[00:16:37] Speaker 02:
Page 27, the Joint Appendix, final decision.

[00:16:39] Speaker 02:
Board goes so far as to say nothing in the environmental record makes us question our determination in the initial decision that competition is going to be enhanced.

[00:16:50] Speaker 02:
Well, that's flat out rejected by the Office of Environmental Analysis conclusions on what was going to occur if the project is approved.

[00:17:04] Speaker 02:
The Uinta Basin is capped at 90,000 barrels of oil right now.

[00:17:11] Speaker 02:
The refineries in Salt Lake City cannot handle any more of the oil.

[00:17:16] Speaker 02:
They need another way to be able to get the oil out of the basin.

[00:17:22] Speaker 02:
Overall trucking, if this project is approved, overall trucking is not going to change.

[00:17:26] Speaker 02:
So there's no competition between rail, as the board found, and as the coalition argues, there's no competition that's going to be stimulated by this project.

[00:17:37] Speaker 07:
Wouldn't there be price competition?

[00:17:39] Speaker 07:
No.

[00:17:40] Speaker 02:
Yeah, exactly.

[00:17:41] Speaker 02:
The board doesn't go into detail on what really the details about competition.

[00:17:46] Speaker 07:
So right, I read the record that way too where they're saying the workers that are in trucking, the capacity in trucking is apart from and would remain, you know, and then the capacity that would be facilitated by the rail is over and above that.

[00:18:02] Speaker 07:
But you're saying that their reference, we can't reasonably understand their reference to competition to be the kind of price competition that people will no longer

[00:18:12] Speaker 07:
be using those trucks if they can't, if they could deal more cheaply over the rail?

[00:18:17] Speaker 02:
Exactly.

[00:18:17] Speaker 02:
And I'm not just saying that.

[00:18:19] Speaker 02:
The Office of Environmental Analysis said overall trucking is not going to be reduced.

[00:18:24] Speaker 02:
That's joint dependent.

[00:18:24] Speaker 07:
Amount of trucking, but would the price for it go down?

[00:18:29] Speaker 02:
They didn't get the board did not dive into those details details that you would you would think that you would dive into that are conventional that are related to what competition.

[00:18:39] Speaker 06:
Isn't it self evident if suddenly the well owners have a choice about where which way to transport the prices will right now you have to have a monopoly on transportation.

[00:18:53] Speaker 06:
I don't mean it in any pejorative sense against the owners of the trucks, but just a sort of world reality monopoly because they're just the road in and out.

[00:19:03] Speaker 06:
And now the point is, I think the board's point is that now there'll be two ways in and out with two different resources to be used for transportation, which just inherently

[00:19:14] Speaker 02:
Increases choice that increases competition that kind of that that hits precisely the flaw in the competition assumption that the board made if the office of environmental analysis

[00:19:28] Speaker 02:
determined that only 10,000 barrels that are currently being trucked out of the basin are going to be displaced throughout the rail, that are going to go to the rail.

[00:19:37] Speaker 02:
So that's 10,000 out of 90,000 barrels.

[00:19:41] Speaker 02:
So when you think about that, it's projected that 350,000 barrels of oil will be transported across the Rocky Mountains.

[00:19:51] Speaker 02:
10,000 of that is going to be replete.

[00:19:53] Speaker 02:
It's going to be oil that is now being trucked.

[00:19:57] Speaker 02:
So that's the competition.

[00:19:58] Speaker 06:
It's 3% of what the... If there's 300, I think trucks can only do 90,000 and there's going to be 350,000, then the train is doing

[00:20:06] Speaker 06:
The 140,000, is that right?

[00:20:11] Speaker 02:
The low oil production is projected 130,000 barrels a day.

[00:20:18] Speaker 02:
High oil production is projected 350,000 barrels a day.

[00:20:24] Speaker 06:
Did you want to talk some about the wildfire risk and the accident risks as well?

[00:20:32] Speaker 06:
I thought you said those were two of your arguments as well.

[00:20:35] Speaker 06:
Am I misdirecting you?

[00:20:36] Speaker 07:
For competition, wildfire accidents, and what was the fourth?

[00:20:41] Speaker 02:
There's a rail policy that the board needs to determine whether the project is going to enhance sound or is going to promote sound economic conditions in rail.

[00:20:53] Speaker 07:
And your position on that?

[00:20:56] Speaker 02:
It's baseless.

[00:20:58] Speaker 02:
I mean there's nothing in the record that suggests that this is going to enhance sound economic conditions.

[00:21:06] Speaker 02:
There's nothing in the record that they can make a decision on.

[00:21:09] Speaker 07:
It's hard to tell in the context of this case what that even means.

[00:21:14] Speaker 07:
I mean, they say no need to examine the financing or not because that's something the market will take care of.

[00:21:22] Speaker 07:
Even though Utah says this is not a market project, this is a public infrastructure development project.

[00:21:31] Speaker 07:
So presumably the taxpayers are going to pay for it.

[00:21:34] Speaker 07:
So what is the theory, as far as you, Kingelene, having been involved with this longer than we have, what promoting sound economic conditions for rail even means in this context?

[00:21:48] Speaker 02:
To be honest, I don't know.

[00:21:50] Speaker 02:
I mean, that's one of the flaws in this decision-making process.

[00:21:54] Speaker 02:
We heard sound bites.

[00:21:56] Speaker 02:
We never heard factual evidence.

[00:21:58] Speaker 02:
What we do know is that the one piece of factual information that goes to whether this is financially feasible or viable is the consultant study

[00:22:13] Speaker 02:
in 2018, R.L.

[00:22:14] Speaker 02:
Banks, which evaluated the feasibility of this project.

[00:22:19] Speaker 02:
Now that was not submitted to the board by the applicant.

[00:22:23] Speaker 02:
That was submitted to the board by the co-petitioners and is heavily redacted

[00:22:28] Speaker 07:
What about, I mean, Alaska Survival, which I recognize is not binding precedent of this court, seems to say, no, whether it's a good idea, whether it's going to be too expensive or the like, it's just, it's not, that's not part of the service transportation board's decision making.

[00:22:48] Speaker 07:
That's for the policy makers in the market and whoever is going to be on the hook.

[00:22:53] Speaker 07:
Why shouldn't we, even though it's not binding, follow that same approach here?

[00:23:00] Speaker 02:
That is the default position of the board, that we're going to leave it to the market, right?

[00:23:07] Speaker 07:
Or the state policymakers.

[00:23:10] Speaker 02:
Right, but whereas here, where there is significant questions about the financial feasibility of the project, which were raised by many, many commoners, where there is a significant public interest,

[00:23:24] Speaker 02:
where there are going to be landowners who are going to have their homes condemned or who are going to be affected by the actual construction of the railway in Utah.

[00:23:36] Speaker 06:
They're not before this court.

[00:23:39] Speaker 06:
You don't represent any of the people in Utah.

[00:23:41] Speaker 02:
No, I'm going over rationale that the board has provided in the Texas Railroad case.

[00:23:48] Speaker 02:
where it justified going away from the default rule that the market will let the market handle it.

[00:23:55] Speaker 02:
Where there's significant public opposition, where there's significant questions about the financial feasibility,

[00:24:02] Speaker 02:
The board in Texas Railways said, no, there's too many questions.

[00:24:07] Speaker 02:
Those questions should be answered in a formal application process where the board is required and Chairman Overman, who descended, really explains this at page 12 of the Joint Appendix.

[00:24:20] Speaker 02:
The board is required to consider the financial viability of the project, the public need for the project, and the public interest.

[00:24:29] Speaker 02:
And the reason that the board took that position, Texas Railroad, which we've explained in our brief, is that the board doesn't want to authorize a speculative project, have it be constructed, and have significant environmental impacts, only to have

[00:24:48] Speaker 02:
a railway that is not used because it's not profitable or because the demand is not there.

[00:24:54] Speaker 02:
And as Chairman Orban and his dissent and both dissents highlighted,

[00:25:01] Speaker 02:
The applicant, the coalition's own consultant, concluded that they don't know how much oil reserves are in the basin, and they don't know what the demand is for this particular type of oil, waxy crude oil.

[00:25:19] Speaker 02:
So that right there demonstrates some speculative nature.

[00:25:23] Speaker 06:
I think your clients would be nothing but happy if

[00:25:28] Speaker 06:
the railway didn't operate, because then it wouldn't be coming into Colorado.

[00:25:32] Speaker 06:
This feels like an argument that I would expect someone from Utah to be making, but no one is here.

[00:25:38] Speaker 06:
As far as your interests are concerned, if they build something and it never

[00:25:45] Speaker 06:
leaves the station That's not good for your clients.

[00:25:50] Speaker 02:
That's a public interest.

[00:25:51] Speaker 02:
I mean factor.

[00:25:52] Speaker 02:
I mean that that's a public interest No, I think it's safe to say that the general the general public doesn't want the federal government to to authorize

[00:26:08] Speaker 02:
billion-dollar projects that have tremendous environmental impacts.

[00:26:12] Speaker 06:
But those construction impacts are all going to be in Utah.

[00:26:15] Speaker 06:
Am I correct?

[00:26:17] Speaker 06:
Yeah, that's not... Well, then you and your clients wouldn't have standing to... I mean, the general public might very well care about this, but you wouldn't have standing to argue about those environmental impacts or the consequences of a train that's built to run over.

[00:26:32] Speaker 02:
Right, right.

[00:26:33] Speaker 02:
And I'm not... That's not one of our arguments.

[00:26:35] Speaker 02:
I'm trying to demonstrate.

[00:26:37] Speaker 02:
the board's reasoning to to deviate from its default policy of relying on market factors.

[00:26:44] Speaker 02:
And our argument here is that that Texas Railroad is very relevant and the board should, given the record before the board, the board should require a full application process.

[00:26:55] Speaker 06:
Is the financial concern just construction or also operation which then could affect sort of safety factors coming into Colorado?

[00:27:05] Speaker 02:
That's not on the record, but I can tell you, as we're all aware, operations, if a company doesn't have sufficient resources to operate any time, then there's more likelihood of shortcuts.

[00:27:23] Speaker 07:
There's this issue in the case with respect to your client's interests about the capacity of the project and the STB in approving this project to include any mitigation down line.

[00:27:39] Speaker 07:
If there are jurisdictions over the project itself, they say we

[00:27:46] Speaker 07:
we couldn't include mitigation downline.

[00:27:49] Speaker 07:
Is there some other transaction or regulatory action that would?

[00:27:54] Speaker 07:
I mean, I'm assuming if I'm the owner of the Union Pacific Line, before I allow nine or 10 hundred car long oil trains to go on my track, I would charge them for track upgrades, for the wear and tear.

[00:28:14] Speaker 07:
Is there anything else that I'm unaware of that would be a mechanism if the board is correct that there's no ability to attach downline mitigation in this case?

[00:28:30] Speaker 02:
That's outside the record.

[00:28:32] Speaker 02:
It's not really addressed.

[00:28:33] Speaker 02:
I think that a railway operator could make those types of requirements.

[00:28:39] Speaker 02:
I think that the point of the mitigation factor is that the board only required mitigation of the proposed railway.

[00:28:54] Speaker 02:
And in evaluating the weighing the harms

[00:28:58] Speaker 02:
of the project versus the transportation merits.

[00:29:01] Speaker 02:
The board repeatedly said, these are significant, but our mitigation measures are going to address that.

[00:29:08] Speaker 02:
And this flaw in that is that any of the downline environmental impacts are not being mitigated.

[00:29:15] Speaker 02:
And this is not an argument that was made in comments.

[00:29:23] Speaker 02:
I'm not aware of why, and this is a question for the board, why the board can't engage in some mitigation measures down the line.

[00:29:34] Speaker 02:
For example, the board relies heavily on emergency response mitigation measures to address wildfires.

[00:29:44] Speaker 02:
There's nothing, I'm not aware of anything, of any law under the ICCTA or NEPA, the relevant laws here, that prevent the board from saying this is gonna, we've determined that this is gonna have significant environmental impacts down the line, including wildfires in Colorado.

[00:30:02] Speaker 02:
You're required to coordinate with Eagle County and the other affected communities down the line to make sure that they have sufficient emergency response measures for wildfires or for oil spills.

[00:30:17] Speaker 02:
Nothing prevents the board from doing that.

[00:30:20] Speaker 06:
So they're supposed to ask you to have more emergency response measures and Eagle County says or some county has says no we don't have the budget.

[00:30:32] Speaker 06:
Have you noticed it's a tough economy and it's also hard to hire people.

[00:30:35] Speaker 06:
We have no budget to increase our emergency response.

[00:30:40] Speaker 06:
Then what happens.

[00:30:42] Speaker 02:
Under any environmental law, NEPA, Clean Water Act, there's wide discretion in what you require for mitigation measures.

[00:30:53] Speaker 06:
And that's including... I'm trying to follow up more concretely on whether they're right, that there's really nothing they can do about downline

[00:31:02] Speaker 06:
mitigation, because it's an existing rail line.

[00:31:07] Speaker 06:
And some of the mitigation is going to involve governmental entities that it has no authority to impose orders onto.

[00:31:14] Speaker 06:
Does that mean could it order you to increase your, could the board order Eagle County to increase its emergency response?

[00:31:20] Speaker 02:
Not that I'm aware of, but it could order the railway applicant to provide funding for mitigation measures.

[00:31:27] Speaker 06:
But again, we're- To fund Eagle County's fire response?

[00:31:32] Speaker 02:
Yes.

[00:31:33] Speaker 02:
I can do that.

[00:31:36] Speaker 02:
I'm not aware of anything that prevents them.

[00:31:38] Speaker 02:
But this is where we're getting away from.

[00:31:40] Speaker 02:
A private entity can do that.

[00:31:41] Speaker 06:
We're not challenging.

[00:31:42] Speaker 06:
No, we're not getting away.

[00:31:42] Speaker 06:
I'm really trying to understand you objecting to their argument about their ability to mitigate down line.

[00:31:47] Speaker 06:
I'm really trying to understand it.

[00:31:49] Speaker 06:
So a private entity can help fund public services.

[00:31:51] Speaker 02:
That's not one of our claims.

[00:31:53] Speaker 02:
We're not saying that you fail to mitigate down line.

[00:31:57] Speaker 02:
We're saying that when you evaluated the environmental harms of this project,

[00:32:01] Speaker 02:
You relied heavily on the 150 or so mitigation measures that the board is requiring.

[00:32:08] Speaker 02:
Board, none of those measures pertain to downline environmental impacts.

[00:32:13] Speaker 02:
And that is a significant flaw in your environmental analysis.

[00:32:16] Speaker 06:
So is your argument, I know, but that argument sounds to me like you should have addressed mitigation efforts downline.

[00:32:25] Speaker 06:
That's one argument.

[00:32:26] Speaker 06:
If what you're trying to tell me is your argument instead is,

[00:32:30] Speaker 06:
You can't mitigate down line.

[00:32:33] Speaker 06:
And so you should have taken that harm into sort of more urgent account when you were making your decision.

[00:32:43] Speaker 06:
Is it?

[00:32:44] Speaker 02:
It's the latter.

[00:32:44] Speaker 02:
The board did not consider the fact that none of the mitigation measures, which they relied on so heavily to address the significant environmental impacts of the project, none of those are going to pertain to significant environmental impacts down line.

[00:33:01] Speaker 03:
Okay.

[00:33:03] Speaker 06:
Can you ask me one practical question that, again, I wasn't clear from the briefing?

[00:33:08] Speaker 06:
What is the difference between, substantively, what is the difference between going through the exemption process and the 10901 formal process?

[00:33:18] Speaker 06:
You said, well, they would consider financial liability, but is it, how is it different?

[00:33:26] Speaker 06:
How are the two different?

[00:33:27] Speaker 06:
What else would come into the record through a 10901 process?

[00:33:30] Speaker 06:
Or what would the board do differently through a 10901?

[00:33:32] Speaker 02:
I don't have the regulations before me, but they require just a lot more detailed information on the economics of the project, including... That's the only difference?

[00:33:44] Speaker 02:
Yes, and also it requires a public notice.

[00:33:48] Speaker 02:
but also the standard that the word is required.

[00:33:52] Speaker 02:
The board cannot set the financial feasibility of the site.

[00:33:57] Speaker 02:
It's required to consider that.

[00:33:59] Speaker 02:
The board's also required to consider the public need and the demand for the project, as well as the public interest.

[00:34:10] Speaker 02:
Those are requirements that the board must consider in the application process.

[00:34:14] Speaker 06:
If it says we did public need and public interest, you may object to it.

[00:34:18] Speaker 06:
But we did that in this decision.

[00:34:21] Speaker 06:
And the only delta between the 10901 and the exemption process is

[00:34:27] Speaker 06:
sort of a better, more thorough analysis of financial viability.

[00:34:32] Speaker 06:
Does one take longer?

[00:34:35] Speaker 06:
Do they take the same amount of time?

[00:34:37] Speaker 06:
Do they take the same amount of time in the 109-01 process?

[00:34:40] Speaker 02:
Not aware of the timelines for them.

[00:34:48] Speaker 07:
Any other questions?

[00:34:50] Speaker 07:
So just to be clear about the scope of your

[00:34:56] Speaker 07:
claim as, in contrasting to your fellow petitioners, you're challenging the failure to consider wildfires an accident likelihood, and with respect to the accidents also effect on water.

[00:35:20] Speaker 05:
Yes.

[00:35:20] Speaker 07:
Yes.

[00:35:22] Speaker 07:
the consideration as such of competition and sound economic conditions for rail?

[00:35:30] Speaker 07:
This is basically the four points that you wanted to highlight?

[00:35:34] Speaker 02:
Correct.

[00:35:34] Speaker 02:
And the other rail policies, public health and safety, that are environmentally related,

[00:35:45] Speaker 07:
And that's where you get the wildfires and accidents in through public health and safety.

[00:35:49] Speaker 02:
And the board failed to conduct an adequate or even analysis of those considerations.

[00:35:55] Speaker 07:
So climate is not an issue that you're pressing?

[00:35:59] Speaker 02:
Climate's definitely an issue.

[00:36:00] Speaker 02:
I thought it was, but I hadn't heard you say anything about it.

[00:36:02] Speaker 02:
But the Eagle County is not.

[00:36:03] Speaker 02:
That's not one of our claims.

[00:36:04] Speaker 02:
OK.

[00:36:08] Speaker 02:
There is one other real policy, though.

[00:36:10] Speaker 02:
that that's related to climate, and that is the board's failure to consider the rail policy of promoting energy conservation.

[00:36:20] Speaker 07:
That wasn't raised before the board, was it?

[00:36:22] Speaker 02:
It was raised before the board.

[00:36:23] Speaker 07:
It was?

[00:36:24] Speaker 07:
By you?

[00:36:25] Speaker 02:
by by your comments in the draft draft.

[00:36:30] Speaker 02:
The board has said has argued that somehow the timing of our comments precludes Eagle County from making that that claim.

[00:36:43] Speaker 02:
That lacks merit.

[00:36:45] Speaker 02:
The board, again, on Joint Appendix, page 26, in its final decision, says- 1226?

[00:36:52] Speaker 07:
No, 2012-226.

[00:36:54] Speaker 02:
Just page 26 of the Joint Appendix.

[00:36:57] Speaker 02:
Board says all comments, all comments on the plenary decision, on the final BIS, they're all incorporated.

[00:37:08] Speaker 02:
They're all part of our record.

[00:37:09] Speaker 07:
And where should we look for your energy efficiency comment?

[00:37:13] Speaker 02:
I, it's in our comments on the draft environmental impact statement.

[00:37:18] Speaker 02:
And that is, I don't have the precise, it's, it's around 740 of the, of doing things.

[00:37:32] Speaker 06:
All right.

[00:37:32] Speaker 06:
Thank you very much.

[00:37:33] Speaker 02:
Thank you.

[00:37:36] Speaker 06:
Ms.

[00:37:37] Speaker 06:
Park?

[00:37:52] Speaker 04:
Good morning, Your Honors.

[00:37:54] Speaker 04:
May it please the Court, I'm Wendy Park, representing Petitioner Conservation Groups in our challenge to the Board's authorization of the Uinta Basin Railway.

[00:38:03] Speaker 04:
This 88-mile-long railway will cut across the Uinta Basin's rugged and mountainous terrain, sending thousands of oil trains to the National Rail Network annually.

[00:38:14] Speaker 04:
Those two-mile-long oil trains will haul billions of gallons of oil annually along the Colorado River on their way to Gulf Coast refineries.

[00:38:24] Speaker 04:
And with this new railway, the winter basin drillers will ship, drill, and sell more oil by more than 350,000 barrels per day.

[00:38:35] Speaker 04:
And so I'd like to address in my argument today two issues.

[00:38:40] Speaker 04:
One would be the indirect effects of the project.

[00:38:43] Speaker 04:
board's failure to consider in the EIS the upstream and downstream oil production harms as indirect effects of the project and why this was a prejudicial error going to Judge Pillard's question regarding both under NEPA and under the ICCTA.

[00:39:02] Speaker 04:
And I'd like to also address the biological opinions failure to consider the effects of oil spills and leaks on the four Colorado River endangered fish.

[00:39:12] Speaker 04:
So turning first to our claim regarding the indirect effects of the project.

[00:39:17] Speaker 04:
First I'll just provide a little bit of context on what this project is about to eventually get to Judge Pillard's question from earlier.

[00:39:25] Speaker 04:
The singular driving purpose of this railway is to ramp up oil production in the Uinta Basin.

[00:39:34] Speaker 04:
And the EIS's total failure to acknowledge that

[00:39:38] Speaker 04:
that driving purpose and the intended effect of this project was a fundamental flaw in the NEPA analysis.

[00:39:50] Speaker 04:
So as Mr. Hunt alluded to in his argument, this project is about opening up access to the national rail network so that oil drillers can

[00:40:02] Speaker 04:
move out of the basin hundreds of thousands of barrels of oil per day.

[00:40:07] Speaker 04:
And it's only with that access that these drillers will be able to ship oil to

[00:40:15] Speaker 04:
in massive quantities to the national or to other refineries outside the state.

[00:40:22] Speaker 04:
And in fact, the only products that will be shipped on the line is oil and fracking sand, which is required for greater, to expand oil production in the basin.

[00:40:33] Speaker 07:
And isn't there some tiny little, on those same trains there might be a car with some merchandise or agricultural

[00:40:42] Speaker 04:
The EIS does allude to possibly that happening in the future, but there are no foreseeable plans to ship any other goods along the line except for oil and fracking sand.

[00:40:55] Speaker 04:
So it's all oil-related shipping.

[00:41:02] Speaker 06:
Is this oil removed through fracking?

[00:41:04] Speaker 06:
I'm sorry?

[00:41:05] Speaker 06:
Is this oil removed from the winter basin through fracking?

[00:41:08] Speaker 04:
Yes, that's what the fracking sand is for.

[00:41:10] Speaker 04:
Yes.

[00:41:11] Speaker 04:
So every barrel, the EIS actually acknowledged that every barrel of oil that's shipped on the line, again up to 350,000 barrels per day, would come from entirely new oil production.

[00:41:24] Speaker 04:
And that would mean that Uinta Basin oil production would have to increase by almost five times current levels for those volumes to be shipped.

[00:41:34] Speaker 04:
But the problem is that the EIS failed to connect the dots and disclosed that the railway would induce this quintupling of oil production and cause serious environmental consequences for upstream communities in the Uinta Basin and downstream communities in the Gulf Coast.

[00:41:52] Speaker 04:
So, for example, the EIS failed to disclose that the project will spur the drilling of thousands of new oil wells and as a result worsen oil pollution in the already smog-choked Uinta Basin and destroy the great habitat for sensitive, rare desert plants.

[00:42:10] Speaker 04:
It failed to disclose that it will unleash more than 56 million tons of greenhouse gas emissions from both upstream drilling and downstream refining and combustion of oil on the line, or nearly 1% of U.S.

[00:42:25] Speaker 04:
emissions.

[00:42:26] Speaker 07:
Doesn't it disclose that?

[00:42:28] Speaker 07:
I mean, it's in the record.

[00:42:32] Speaker 07:
I mean, I'm trying to understand that SEDEPA is a procedural statute.

[00:42:36] Speaker 07:
It requires acknowledgement of various effects.

[00:42:40] Speaker 07:
I thought the figures that you're referring to about the low or the high estimates are actually figures that came out through the environmental analysis.

[00:42:48] Speaker 07:
Is that wrong?

[00:42:50] Speaker 04:
No, that's not wrong.

[00:42:51] Speaker 04:
Those figures did come out through the environmental analysis, but the problem is that those increased emissions, those thousands of new oil wells were attributed as effects of oil drilling projects and not as effects of the railway.

[00:43:16] Speaker 07:
If they're identified, does the attribution matter only for purposes of the RAIL Act or also for purposes of NEPA because they're basically saying these are things that are going to be approximately caused by

[00:43:36] Speaker 07:
by this expansion of, by making the line, the Uinta Basin connect to the Pacific line and be able to bring this oil to the coast.

[00:43:52] Speaker 04:
I absolutely disagree that the EIS says that

[00:43:56] Speaker 04:
These oil production harms are approximately caused by the railway.

[00:44:03] Speaker 04:
There is nowhere in the EIS that they admit to these effects being caused by the railway.

[00:44:13] Speaker 04:
To get to the other part of your question, Judge Pillard, it matters for purposes of NEPA, not just for purposes of the ICC Termination Act.

[00:44:23] Speaker 04:
The whole point of NEPA is to inform decision makers and the public of the environmental consequences of the proposed action.

[00:44:32] Speaker 04:
But by masking oil production harms as the effects of other projects in the board's cumulative impacts analysis, the board obscured

[00:44:44] Speaker 04:
the railway's causal role in creating those effects.

[00:44:47] Speaker 04:
And that is contrary to NEPA's demand for forthright disclosure and analysis.

[00:44:52] Speaker 06:
Except they said we would reach the same decision, even treating them as indirect effects.

[00:44:57] Speaker 06:
So they sort of processed it both ways.

[00:45:00] Speaker 06:
And so they told the public, even if these are indirect effects that is caused by the railway, our outcome is the same.

[00:45:11] Speaker 06:
So what do we do with that?

[00:45:12] Speaker 04:
Your Honor, I disagree that they said that they would reach the same decision.

[00:45:17] Speaker 04:
So they assert that post hoc in their briefing that they would have reached the same decision.

[00:45:24] Speaker 04:
It's a post hoc rationalization and it has absolutely no support in their decision or in the record.

[00:45:31] Speaker 04:
And so it's Fifth Note 15 of the decision, which is that JA 40

[00:45:37] Speaker 04:
that I think you're referring to.

[00:45:39] Speaker 04:
And it says, furthermore, regardless of whether the EIS labeled the impacts from oil and gas development in the basin as indirect or cumulative impacts, OEA conducted a full analysis of those effects.

[00:45:56] Speaker 04:
The impacts and the analysis of those impacts would be the same no matter which label is used.

[00:46:02] Speaker 04:
And so that does not say that the decision would have been the same.

[00:46:07] Speaker 04:
What that says is that their NEPA analysis would have been the same regardless of this so-called, what they call a mislabeling error.

[00:46:17] Speaker 06:
But if the impacts are the same, on what basis would we think it would change the

[00:46:22] Speaker 06:
So your argument is that it would change the ICCTA decision?

[00:46:27] Speaker 06:
How do we do that if we say the impacts are the same?

[00:46:30] Speaker 06:
It's all analyzed and the impacts are the same.

[00:46:31] Speaker 04:
How could we possibly think that it would make a difference under either one?

[00:46:43] Speaker 04:
So the reason why it makes a difference is for purposes of the of the weighing analysis, which entirely the weighing analysis between the transportation benefits and the environmental harms of the project.

[00:46:59] Speaker 04:
The board entirely rely on the EIS.

[00:47:03] Speaker 04:
for its accounting of harms.

[00:47:05] Speaker 07:
Is there another EIS process required, for example, if new wells are authorized in the basin?

[00:47:19] Speaker 04:
There possibly could be for new federal oil wells.

[00:47:23] Speaker 04:
But the point under Sable Trail, that doesn't matter because here the board had the ability to deny the project on the grounds that the project was too harmful for the environment.

[00:47:35] Speaker 04:
And so all of those new oil wells, it doesn't matter if there are other approvals that are further down the line because the board had the ability to deny the project

[00:47:47] Speaker 04:
on the basis that all of those new oil wells could be too harmful for the environment, then it had to consider the effects of those oil wells in its indirect effects analysis.

[00:47:58] Speaker 04:
It couldn't simply ignore them.

[00:48:00] Speaker 04:
And I think that the problem that's

[00:48:07] Speaker 04:
that's an issue here is that you know on the one hand the board says that they didn't consider, they couldn't consider these effects because it wouldn't be useful to their decision making because under public citizen they wouldn't have the authority to do anything about these oil production harms so that's what they say on the one hand but then on the other hand they say well

[00:48:33] Speaker 04:
actually we did consider them in our cumulative impacts analysis, but then how could they have actually considered them in their final weighing analysis between the environmental harms versus the transportation benefits if they said in the first place that they were not allowed to consider them.

[00:48:50] Speaker 04:
So those effects were never weighed as harms of the project.

[00:48:54] Speaker 07:
I do have a little trouble figuring out what people are referring to as cumulative.

[00:48:59] Speaker 07:
Is it your understanding that they're saying, well, we're assuming that those things would happen as a result of separate and independent decisions of oil companies, let's say, and we are analyzing the effect of this rail construction and the use of this line

[00:49:20] Speaker 07:
against that higher baseline.

[00:49:22] Speaker 07:
Is that the analysis that you understand them to be referring to when they refer to a cumulative, correctly cumulative approach?

[00:49:32] Speaker 07:
I mean, I thought cumulative would be, you know, okay, you add, you know, let's say the greenhouse gas effects of the actual construction of this line and the running of the train on the line.

[00:49:45] Speaker 07:
And then you add on top of that other effects, the running of the trains along the Union Pacific, the running of refineries, and the ultimate combustion of the fuel, and those things all accumulate to make a big effect.

[00:50:04] Speaker 07:
And whether you treat that as cumulative or indirect doesn't matter as long as you see it all as flowing from the project.

[00:50:10] Speaker 07:
That's one way of understanding in which seems to support the notion

[00:50:14] Speaker 07:
Why does it matter?

[00:50:15] Speaker 07:
We looked at it.

[00:50:16] Speaker 07:
But I'm trying to understand what the different treatment is that you're accusing them of having engaged in that doesn't fully count.

[00:50:27] Speaker 04:
Well, because in a cumulative impacts analysis, the reason why the board is considering the effects of other projects, it's not to assess the significance of those other projects.

[00:50:39] Speaker 04:
It's not to assess the significance of the effects of other projects.

[00:50:44] Speaker 04:
It's to assess the significance of the

[00:50:49] Speaker 04:
agencies actions effects in context with all of the other types of stressors or burdens that could be acting on the same resource.

[00:51:00] Speaker 04:
So the point is for the board to have or the agency to have a realistic picture of the environmental impacts of the project and not just simply look at them in a vacuum.

[00:51:13] Speaker 07:
So packed into that label cumulative in your view,

[00:51:17] Speaker 07:
is that they're saying those are not effects caused by this project.

[00:51:22] Speaker 07:
They're just part of the context that this project comes to.

[00:51:26] Speaker 06:
Where do they say, and therefore those effects will not be factored into our weighing analysis under the ICC?

[00:51:38] Speaker 06:
Where do they say that?

[00:51:39] Speaker 04:
Well, they say that they couldn't consider them because it wouldn't have been helpful to their decision making because they didn't have the authority to prevent those effects.

[00:51:49] Speaker 04:
They essentially rely... But that would be true either way.

[00:51:52] Speaker 06:
Whether they call them indirect or not, they say, this category of effects, there's nothing we can do about it.

[00:51:57] Speaker 06:
We can't mitigate.

[00:51:59] Speaker 04:
But what they're essentially saying is that they didn't have to consider them... Where did they say that?

[00:52:04] Speaker 04:
Do you have a JA site where they said that?

[00:52:07] Speaker 04:
Well, I mean, they're essentially arguing it in, okay, so I would point the court to, I believe it's in the EIS, the final EIS, and JA 1238.

[00:52:40] Speaker 04:
that paragraph, the first full paragraph.

[00:53:04] Speaker 04:
Okay, well, excuse me.

[00:53:05] Speaker 04:
Going further up, actually, the first paragraph at the top of the page.

[00:53:15] Speaker 04:
So, they say that the coalition's proposed rail line is not an approximate cause of oil and gas development in the basin because such development may occur and is already taking place without the proposed rail line.

[00:53:31] Speaker 06:
They're just talking here about NEPA.

[00:53:33] Speaker 06:
When I was asking you, and if I misunderstood your answer to Judge Piller, tell me, I understand your argument to be the reason proper characterization under NEPA matters is not so much for NEPA.

[00:53:46] Speaker 06:
They've laid everything out.

[00:53:49] Speaker 06:
That's really what NEPA's about.

[00:53:50] Speaker 06:
It matters because then when they get to weighing transportation merits against environmental harms under the ICCTA, that's when they discount

[00:54:02] Speaker 06:
cumulative effects from that way.

[00:54:04] Speaker 06:
I thought that's what you said.

[00:54:05] Speaker 06:
Did I misunderstand you?

[00:54:07] Speaker 04:
Well, for purposes of NEPA, I don't believe that they fully disclose the harms as the project's effects.

[00:54:13] Speaker 04:
They only disclose those oil production harms as the effects of other projects.

[00:54:20] Speaker 06:
Why does that matter for NEPA?

[00:54:21] Speaker 06:
As long as it's fully disclosed to the public, if they got the label wrong, they disclose the relevant environmental information and consequences.

[00:54:30] Speaker 06:
It matters.

[00:54:32] Speaker 04:
It matters for purposes of NEPA because, first of all, they significantly underestimated the project's effects.

[00:54:39] Speaker 04:
If they are not.

[00:54:40] Speaker 06:
Okay, but that's just a separate objection.

[00:54:41] Speaker 06:
They just didn't do the analysis right.

[00:54:43] Speaker 06:
That's a separate, it doesn't apply to how they characterize it.

[00:54:47] Speaker 04:
Oh, I believe it does because if they're saying that they don't have to consider all of the truck trips from all of the traffic generated by the railway between

[00:54:58] Speaker 04:
the oil fields and the rail terminals, then they're not counting those truck trips as having been generated by the project.

[00:55:06] Speaker 04:
They're counting them as truck trips that were generated by oil and gas drilling.

[00:55:12] Speaker 04:
And so they're not being forthright about the amount of traffic that this project could generate.

[00:55:20] Speaker 04:
And they're underestimating the total impacts.

[00:55:25] Speaker 04:
Yes, they did acknowledge it in their cumulative impacts analysis, but that's a separate, the cumulative impacts analysis.

[00:55:34] Speaker 06:
Does the cumulative impacts analysis affect

[00:55:37] Speaker 06:
the subsequent weighing, you do the EIS, that's one thing, and then they're supposed to take these environmental consequences and go weigh them against transportation merits.

[00:55:49] Speaker 06:
That's what they're supposed to do in their final decision.

[00:55:51] Speaker 06:
Does whether they called it in the EIS cumulative or indirect have any effect down when they get to that balancing

[00:56:02] Speaker 06:
on how they do the balancing.

[00:56:03] Speaker 06:
That's what I thought you were talking about.

[00:56:05] Speaker 04:
Yes, I'm sorry that I didn't directly answer that before.

[00:56:09] Speaker 04:
So, I mean, one thing that they say in their briefing is that they could not have considered oil production harms as a factor to weigh against the approval of a project because their duty to

[00:56:23] Speaker 04:
And force the common carrier obligation briefing.

[00:56:27] Speaker 06:
But where did the board say that's we don't we don't we don't review briefly review the board's decision.

[00:56:33] Speaker 06:
So the board say we're therefore not including that in our weighing analysis.

[00:56:39] Speaker 04:
Well, so

[00:56:43] Speaker 04:
I believe it's implicit in the decision because the decision entirely relies on the EIS for the accounting of harms and the harms of the project.

[00:56:54] Speaker 04:
And the harms of the project are only the indirect effects of the project.

[00:56:57] Speaker 04:
They can't be the harms of other projects.

[00:57:01] Speaker 06:
They said even if we treat them as indirect effects.

[00:57:03] Speaker 06:
This is the board now said our decision is the same even treating them as indirect effects.

[00:57:09] Speaker 04:
So if that's the case, if that's what they said, but we don't agree that they actually said that they would have made the same decision, but if that's how the court would interpret that, there's absolutely no reasoning supplied as to why they would have reached the same decision, as to how they would have gotten to that place, because they don't actually weigh the impacts of oil and gas development in addition to the impacts of

[00:57:38] Speaker 04:
the construction and the operations of the railway.

[00:57:42] Speaker 04:
So how do they even, how do they even justify that?

[00:57:45] Speaker 04:
That's totally absent from the record.

[00:57:49] Speaker 07:
So what do we, do you have a position on how, whether we have a jurisdiction to review or what the nature is of our review of the financing or not of the project?

[00:58:04] Speaker 04:
Honestly, it's not something that we focused on in our briefing, but I would agree with Eagle County's Council that under Alaska Survival, for informal proceedings,

[00:58:19] Speaker 04:
It's good enough for Eagle County petitioners to weigh in at the draft EIS stage to object to the financial feasibility of the project.

[00:58:35] Speaker 04:
And those issues were raised by us, by the conservation groups in our reply on the petition.

[00:58:42] Speaker 07:
So on the substance of the environmental issues, did you want to

[00:58:48] Speaker 07:
Just briefly emphasize the errors that you think are principle problems.

[00:58:58] Speaker 07:
Sure, so.

[00:59:03] Speaker 07:
The fish, is it the fish principally?

[00:59:09] Speaker 04:
Yes, there's the fish, but I guess

[00:59:16] Speaker 04:
I guess one other thing I'd just like to address before we head to that claim is that the reason why this was also prejudicial under NEPA, this mislabeling error was prejudicial under NEPA is because the board lost an opportunity to consider mitigation.

[00:59:40] Speaker 04:
for indirect effects of the project or for these oil production harms by considering them the effects of other projects instead of this project.

[00:59:53] Speaker 04:
Say more.

[00:59:54] Speaker 04:
Can you be more concrete?

[00:59:55] Speaker 04:
Sure.

[00:59:56] Speaker 04:
So with respect again to the massive increase in truck traffic that would arise due to the additional drilling generated by the railway,

[01:00:10] Speaker 04:
The board could have considered mitigation like requiring the seven county coalition to.

[01:00:18] Speaker 04:
You mean the massive increase in rail traffic.

[01:00:21] Speaker 04:
You said not traffic.

[01:00:22] Speaker 04:
No, I'm talking about truck traffic that results from.

[01:00:27] Speaker 04:
the massive increase in oil production, the trucks that would go between the oil fields and the rail terminals to bring oil over to the railway, all of that they considered as the effects of other projects instead of this project.

[01:00:43] Speaker 04:
And so they did not consider any mitigation for that truck traffic, even though without this project

[01:00:50] Speaker 04:
there wouldn't be any truck traffic going between the railway and the oil fields.

[01:00:57] Speaker 04:
Because there would be no induced additional oil production.

[01:01:00] Speaker 07:
Exactly.

[01:01:00] Speaker 07:
And is there, I think I just asked Mr. Hunt, is there a separate permitting required for creating new oil wells?

[01:01:12] Speaker 04:
Yes, there would be state permits required for oil wells.

[01:01:18] Speaker 04:
But again, it doesn't... And ANEPA?

[01:01:20] Speaker 07:
ANEPA analysis?

[01:01:20] Speaker 07:
Or no?

[01:01:23] Speaker 04:
If it were a federal project, perhaps, but not for a project on state or federal land.

[01:01:29] Speaker 04:
But again, going back to Sable Trail, it doesn't matter that there are other approvals down the line because the board is required to consider all

[01:01:42] Speaker 04:
indirect effects of the project based on its duty to

[01:01:49] Speaker 04:
to consider the public health and safety under the rail transportation policy and because it could deny the project on the grounds that the project would be too harmful for the environment.

[01:02:01] Speaker 06:
So if it has the... Is there a... You keep saying cumulative effects, that's not part of this project, but the whole point of NEPA is that cumulative effects are a consequence of a project.

[01:02:12] Speaker 06:
That's why you have to discuss them.

[01:02:14] Speaker 06:
in analyzing the environmental consequences of the project.

[01:02:17] Speaker 06:
So is there something in NEPA regulation case law that says the action agency is unable to do anything to mitigate cumulative impacts triggered or contributed to by the project?

[01:02:36] Speaker 04:
I don't believe it's

[01:02:40] Speaker 04:
that they're not able to do anything about the incremental impact of the action.

[01:02:45] Speaker 04:
I mean, that's really the focus of the cumulative impacts analysis is the incremental impact of the action.

[01:02:50] Speaker 04:
Right.

[01:02:50] Speaker 04:
There's going to be more trucks.

[01:02:51] Speaker 06:
It's going to be incrementally more trucks.

[01:02:53] Speaker 06:
And so there's nothing they can do to mitigate that.

[01:02:55] Speaker 06:
That seemed to be your argument that they can't mitigate it because they're not calling it an indirect effect.

[01:02:58] Speaker 04:
They can't mitigate for, if they're considering the effects as the effects of other projects,

[01:03:07] Speaker 06:
Then cumulative effects are effects of this project added on top of other things going on.

[01:03:14] Speaker 06:
That's what cumulative effects are, right?

[01:03:17] Speaker 06:
You're adding things of this on top of, maybe it's not by itself, but when mixed together with other things, like decisions about developing oil wells, then this is going to, it's the two coming together.

[01:03:29] Speaker 06:
The oil well decision is gonna create more oil, and our decision about the rail line is going together, those are going to create a need for trucks to take the oil from the well to the train.

[01:03:41] Speaker 06:
And so it is not as though that has nothing to do with this project when it's a cumulative effect.

[01:03:48] Speaker 06:
NEPA says that counts as a type of effect of this project.

[01:03:52] Speaker 06:
And I understood your argument, and tell me if I'm wrong.

[01:03:55] Speaker 06:
I can very well be misunderstanding this, that the problem is when it's called a cumulative effect, they can't mitigate.

[01:04:03] Speaker 06:
For example, they couldn't do something to mitigate the truck traffic or truck pollution

[01:04:11] Speaker 06:
between the wells and the railroad.

[01:04:13] Speaker 06:
Right, they didn't consider any mitigation.

[01:04:15] Speaker 06:
They didn't consider it as a different argument.

[01:04:18] Speaker 06:
That may be a substantive attack on their consideration, but they could have considered mitigation effects for those cumulative effects as well, correct?

[01:04:31] Speaker 04:
I suppose there could be a way that they, I mean, I think the point is that mitigation goes to the effects caused by the project.

[01:04:39] Speaker 07:
It seems like there's a separate variable, which is even if you accept that the additional trains on the Pacific line would be caused by the project, they're saying, you know, that's in another state.

[01:04:50] Speaker 07:
We don't have control over, you know, anything from fire response to maintenance on the tracks to,

[01:04:58] Speaker 07:
speed that the trains travel is just beyond our bailiwick.

[01:05:04] Speaker 07:
So whether it's indirect or cumulative or otherwise.

[01:05:12] Speaker 07:
And that seems like that's independent objection that maybe bolstered slightly by considering it cumulative because cumulative seems to distance, conceptually distance those effects.

[01:05:25] Speaker 07:
But it seems like it's a distinct objection that they're raising.

[01:05:31] Speaker 07:
But we can also ask them about authority to mitigate.

[01:05:35] Speaker 07:
Maybe they could do more to mitigate the trucking because it's right there in Utah, it's right there in the counties, it's right at the project rail line.

[01:05:45] Speaker 04:
Great.

[01:05:47] Speaker 04:
Yeah, I mean, I think that the problem here though is that because they essentially said that they had no control over these effects, that they didn't have a duty to consider them as the effects of this project.

[01:06:05] Speaker 04:
And then they not only didn't consider mitigation for those effects, but they also didn't weigh them in their

[01:06:14] Speaker 04:
weighing analysis of the harms versus the transportation benefits.

[01:06:19] Speaker 04:
And that's the problem here is that their whole decision boiled down to are the harms of the project, are those heftier than the transportation merits, and if they considered oil and gas harms, oil and gas harms

[01:06:41] Speaker 04:
not the incremental impact of the project on top of oil and gas harms, but just the oil and gas harms as the effects of other projects, how could they have considered those as

[01:06:53] Speaker 04:
effects of the project, or in their weighing analysis.

[01:06:56] Speaker 04:
It just doesn't make sense.

[01:06:59] Speaker 04:
And so I just want to make sure that have I... I think so, but can I ask you something, Grace?

[01:07:09] Speaker 06:
I wrote there is... Do you know

[01:07:13] Speaker 06:
This goes to the environmental justice community's argument.

[01:07:19] Speaker 06:
I never knew there was such a thing as waxy crude oil until this case, to be clear.

[01:07:24] Speaker 06:
Is there something in the record that talks about does the refining of waxy crude oil, is it done in a different way, involve different chemicals or discharges than non-waxy crude oil, or is the environmental justice concerned simply that it will increase the amount of refining done in these communities?

[01:07:43] Speaker 04:
It's simply that the refining would increase in those downstream communities.

[01:07:48] Speaker 06:
There's nothing different about refining Waxy Crudo.

[01:07:52] Speaker 06:
I just got this vision of Wax Light clogging up the machine, but maybe not.

[01:07:57] Speaker 06:
You've got to get the wax out, right?

[01:07:59] Speaker 06:
I'm sorry?

[01:07:59] Speaker 06:
You have to get the wax out, I would assume, right?

[01:08:01] Speaker 04:
They would have to heat the tank cars to get the wax out, yes.

[01:08:08] Speaker 06:
Okay, but that doesn't cause an emissions that's part of your environmental justice community's argument.

[01:08:14] Speaker 04:
Yeah, I guess the way I...

[01:08:17] Speaker 04:
The record just doesn't speak to what the difference between refining waxy crude is and refining other.

[01:08:26] Speaker 04:
But that's the entire problem here is that they just never took a look at how downstream communities would be impacted by increased refining

[01:08:37] Speaker 04:
they just completely ignored it and they had plenty of information to at least forecast that increased refining could harm air quality throughout the Uinta Basin.

[01:08:49] Speaker 04:
The Houston non-attainment ozone area, for example, is

[01:08:55] Speaker 04:
in severe non-attainment status and it has to meet Clean Air Act deadlines by certain federal deadlines and adding all of this oil downstream to refineries will only make that problem worse and hinder progress in achieving those Clean Air Act standards.

[01:09:19] Speaker 04:
So this was a major problem that's throughout the entire

[01:09:25] Speaker 04:
EIS is that they never acknowledged that the project's purpose is to increase production and these are the effects from the project itself.

[01:09:38] Speaker 04:
So I guess just to then turn to our endangered species act claim as you were asking about Judge Pillard.

[01:09:51] Speaker 04:
So with respect to that claim,

[01:09:56] Speaker 04:
The biological opinion here entirely failed to address the potential for oil spills and train pollution leaks.

[01:10:06] Speaker 04:
to harm the Colorado River endangered fish.

[01:10:09] Speaker 04:
And those are the Colorado pike minnow, the razorback sucker and humpback chub and bony tail.

[01:10:16] Speaker 04:
But the service had plenty of information before it from the EIS showing a strong likelihood of harm from spills and leaks.

[01:10:25] Speaker 04:
So with respect to leaks from oil trains, the record reveals that over 3,400 oil trains would make the trip annually.

[01:10:33] Speaker 04:
between the Uinta Basin and Gulf Coast refineries or further east and travel along the Colorado River corridor right next to it.

[01:10:44] Speaker 04:
That means that every year more than 377,000 rail cars and over 27,000 locomotives could leak diesel, lubricants, grease, and other toxic fuels into the Colorado River or alongside it and run off into those waters.

[01:11:01] Speaker 04:
The EIS also predicts that, with respect to spills, they occur once every four years along the Union Pacific Line between Kai and Utah and Denver.

[01:11:11] Speaker 04:
And over half of that length of the Union Pacific Line runs right against the Colorado River.

[01:11:19] Speaker 04:
Nearly three quarters of those spills would likely release 30,000 gallons or more, which is an entire tanker full of oil.

[01:11:27] Speaker 04:
I think you want to just take one minute and wrap up.

[01:11:29] Speaker 04:
Okay, sure.

[01:11:30] Speaker 04:
We don't have your time here and we have other people.

[01:11:32] Speaker 04:
Yes, I'm sorry.

[01:11:34] Speaker 04:
Okay.

[01:11:34] Speaker 04:
So I guess what I'd like to say finally about that is that the Fish and Wildlife Service here tried to rely on the EIS's explanation

[01:11:44] Speaker 04:
for not addressing these effects in the EIS, but the biological opinion has to stand on its own as a final agency action.

[01:11:54] Speaker 04:
It had the ability to

[01:11:57] Speaker 04:
shape the board's decision regarding oil spills and leaks.

[01:12:04] Speaker 04:
And because the Fish and Wildlife Service didn't consider spills and leaks in their biological opinion,

[01:12:17] Speaker 04:
it could have found actually if it had considered those effects that the project should require minimization measures for those harms or should include terms and conditions for the implementation of those measures.

[01:12:32] Speaker 04:
But that opportunity was lost because it didn't consider those effects in the biological opinion.

[01:12:39] Speaker 04:
So it was very crucial for the Fish and Wildlife Service Agency to actually address them

[01:12:45] Speaker 04:
And even if the service could rely on the EIS's conclusions regarding those effects, the EIS just does not add up in its reasoning.

[01:12:57] Speaker 04:
I mean, the EIS is clear that these spills will occur, that leaks will occur, and so that harm should have been considered.

[01:13:05] Speaker 04:
Thank you.

[01:13:08] Speaker 04:
Thank you very much.

[01:13:08] Speaker 04:
Okay.

[01:13:09] Speaker 04:
Thank you, Your Honor.

[01:13:37] Speaker 08:
May it please the court, my name is Barbara Miller and I am here on behalf of Respondent, the Circus Transportation Board.

[01:13:46] Speaker 08:
I will start by addressing the environmental impacts in the EIS since that was a prominent focus of the board's attention earlier.

[01:13:54] Speaker 08:
And I think that the starting point for the discussion on that is that the board conducted a full and rigorous environmental review

[01:14:05] Speaker 08:
including a complete analysis of both upstream and downstream greenhouse gas emissions.

[01:14:13] Speaker 08:
There is nothing that the board could have done with respect to that analysis that it did not do.

[01:14:20] Speaker 06:
What about address the impact on environmental justice communities of the refining of the soil?

[01:14:26] Speaker 08:
where they do well yet the the analysis itself as to what the the emissions would be was complete as complete as it could be in the assessment of impacts of environmental justice on the potential environmental justice communities

[01:14:41] Speaker 08:
was something that we simply did not have the information.

[01:14:45] Speaker 06:
You had the information about at least what region this was going to be going to.

[01:14:49] Speaker 06:
You didn't know which refinery in particular, but you knew what regions it was most likely to go to, which is good enough for these purposes.

[01:14:56] Speaker 06:
We don't require proof beyond a reasonable doubt.

[01:14:58] Speaker 06:
And those regions were areas where there were environmental justice communities already suffering ill effects from the refining process, and now there's going to be

[01:15:10] Speaker 06:
So if you told me they considered everything absolutely that could be considered, so where did they do that?

[01:15:18] Speaker 08:
as this court found in Burkhead and Food and Water Watch in Delaware, impacts when you are not able to identify end use and you are only able to identify general reasons for destinations are not reasonably foreseeable.

[01:15:36] Speaker 08:
And therefore, by definition, those environmental justice impacts are not reasonably foreseeable.

[01:15:41] Speaker 06:
This is what confused me about the decision, because it seems like things were foreseeable

[01:15:45] Speaker 06:
for some parts of the decision and not for others.

[01:15:48] Speaker 06:
Where this is going, there was no question that it was going to hook up with the Union rail line and go through Colorado and go to these certain refineries.

[01:16:02] Speaker 06:
No one thinks it's going to New York.

[01:16:04] Speaker 06:
No one thinks it's going to California.

[01:16:06] Speaker 06:
It was Texas or Louisiana refineries, if I have that right.

[01:16:10] Speaker 06:
It was going to this region.

[01:16:12] Speaker 06:
We don't know which refineries, we don't have contracts for that, but we know with some comfort level of knowledge that it is going to a particular, that refineries in a region.

[01:16:26] Speaker 06:
They said that, correct?

[01:16:27] Speaker 06:
The board said that.

[01:16:29] Speaker 06:
Okay, so they found that it's going to a region.

[01:16:31] Speaker 06:
And that region,

[01:16:34] Speaker 06:
where the refineries are no one's arguing they're going to build a new refinery.

[01:16:38] Speaker 06:
So where all the refineries are in that region there are environmental justice communities correct?

[01:16:44] Speaker 08:
Correct?

[01:16:45] Speaker 08:
It depends.

[01:16:46] Speaker 08:
There are 31, it's not that the

[01:16:50] Speaker 08:
The refineries in these regions are all on one street, and therefore they all affect one potential environmental justice community.

[01:16:58] Speaker 06:
It may be more than one community, but the impact, there's going to be, are the refineries in this region that are not surrounded by environmental justice communities?

[01:17:09] Speaker 08:
The air quality

[01:17:12] Speaker 08:
status within the state, for example, the Houston-Port Arthur region are not the same without it, and therefore you cannot... They're not the same what?

[01:17:22] Speaker 08:
They're not the same.

[01:17:23] Speaker 08:
If you look at the attainment levels for each of those areas, what is in Houston is different than what is in Port Arthur, and we are talking about

[01:17:36] Speaker 08:
in the Houston area, there are 15 different refineries, and Houston and part of Arthur are almost 100 miles apart, so we are not talking about a single community.

[01:17:45] Speaker 06:
No, I'm not saying it's a single community.

[01:17:47] Speaker 06:
All I'm saying is around the Houston refineries, are there environmental justice communities that would be effective if it's refined there?

[01:17:55] Speaker 08:
Again, because we are talking general regions, I do not

[01:18:01] Speaker 08:
I do not think that those are the impacts on those environmental justice communities are reasonably foreseeable.

[01:18:08] Speaker 08:
The board went over and above.

[01:18:10] Speaker 06:
I'm just asking a fact question.

[01:18:12] Speaker 06:
I'm just asking a fact question.

[01:18:14] Speaker 06:
And that is, are the Houston refiner, are there environmental justice communities around the Houston refineries?

[01:18:23] Speaker 06:
There is no information in the record on that.

[01:18:24] Speaker 06:
There's no information in the record on that?

[01:18:26] Speaker 06:
Not that I'm aware of, Your Honor.

[01:18:28] Speaker 06:
And Port Arthur refineries aren't surrounded by environmental justice communities either.

[01:18:32] Speaker 06:
Again, there is no information in the record on that.

[01:18:34] Speaker 08:
However, I will say that the air quality levels are substantially different in those two areas.

[01:18:40] Speaker 08:
So there is not one simple, we could say, if it's going to this region, here are the impacts.

[01:18:45] Speaker 06:
It may not be one simple, but they could say if it goes here, it's a consequence.

[01:18:47] Speaker 06:
And if it goes to, we think these are the two most likely areas, or three, or four.

[01:18:52] Speaker 06:
And if it goes here, here's the impact.

[01:18:54] Speaker 06:
And if it goes there, there's the impact.

[01:18:56] Speaker 06:
But we've narrowed it down

[01:18:58] Speaker 06:
you know, geographically as they have here.

[01:19:00] Speaker 06:
We're not sort of going, we have no idea where in the United States this is going.

[01:19:03] Speaker 08:
First, this is an estimate and a prediction based on multiple factors that are subject to change and multiple factors that are outside

[01:19:15] Speaker 08:
outside of our control or prediction for when you're talking as far down the timeline that we're talking that oil is actually going to be at the point where it will be refined.

[01:19:26] Speaker 07:
But Ms.

[01:19:26] Speaker 07:
Miller, there's something very striking about the decision in this case, which is that all of the rationale for the project is to enable the exploitation of

[01:19:45] Speaker 07:
the oil resources in the Uinta Basin.

[01:19:48] Speaker 07:
And it's saying, look, we've got this valuable resource here.

[01:19:51] Speaker 07:
It's kind of locked in there.

[01:19:53] Speaker 07:
The isolated empire, as Utah puts it, limited capacity to refine in Salt Lake.

[01:20:01] Speaker 07:
Let's build this train line, put it onto the Union Pacific, and then it can be put into the economy and sold and used.

[01:20:12] Speaker 07:
Now, there's no

[01:20:15] Speaker 07:
There's no scenario before the board that would involve only using this in ways that had to do with lubrication and didn't have to do with burning.

[01:20:26] Speaker 07:
That's just not this case.

[01:20:29] Speaker 07:
The case is,

[01:20:30] Speaker 07:
let's get this stuff out of the ground and get it to the world market so it can be combusted and used as fuel.

[01:20:36] Speaker 07:
And then, so that's the sort of the development, the financial case, this is a public works, this is allowing Utah to, you know, get at and get

[01:20:47] Speaker 07:
tax revenues and royalties from the exploitation of this valuable resource.

[01:20:51] Speaker 07:
So that's the transportation equities, right?

[01:20:54] Speaker 07:
And then on the other side, it's like, but we have no idea what's gonna happen with this.

[01:21:00] Speaker 07:
I mean, maybe it's just gonna be used to send alfalfa to cattle in Colorado.

[01:21:05] Speaker 07:
No, right?

[01:21:06] Speaker 07:
That's not the case here.

[01:21:10] Speaker 07:
And so it just begs,

[01:21:12] Speaker 07:
It's just hard to understand the logic at a really, really basic level of the service transportation board saying the productivity that's going to be spurred by this project is something that we're relying on.

[01:21:30] Speaker 07:
But the environmental effect of that very productivity is unforeseeable.

[01:21:37] Speaker 08:
We didn't say it was unforeseeable.

[01:21:43] Speaker 08:
We considered those impacts.

[01:21:47] Speaker 08:
We did not close our eyes and pretend that no oil was going to be transported on this line, despite the fact that while that may be the coalition's purpose, what we were being asked to approve, which is all we can approve, is a common carrier line to provide service to the basin.

[01:22:06] Speaker 08:
And we openly and repeatedly acknowledged that the primary canality on this line was going to be

[01:22:12] Speaker 08:
And so we absolutely addressed that thoroughly and completely and looked at every aspect.

[01:22:21] Speaker 08:
If you look at the upstream development analysis, we looked at everything that could possibly create greenhouse gas emissions and calculated what those would be using the very limited information that we had

[01:22:40] Speaker 08:
because none of these projects are even in the planning stages yet for this upstream development.

[01:22:49] Speaker 08:
The coalition is going to have no involvement with those, and that was not part of the project that was in front of us.

[01:22:55] Speaker 08:
So the idea that we did not acknowledge that the primary commodity, particularly initially, was going to be oil is just not supported by the record.

[01:23:08] Speaker 07:
We looked at it.

[01:23:10] Speaker 07:
Well, you say it's going to be used, but you're not attributing it to the project.

[01:23:15] Speaker 07:
And I guess, right?

[01:23:17] Speaker 07:
Is that right?

[01:23:17] Speaker 07:
You're not attributing it to the project?

[01:23:19] Speaker 08:
Well, I think, as the court noted earlier, cumulative impacts are impacts from the project.

[01:23:27] Speaker 07:
But am I right in reading the board as having said, in effect,

[01:23:35] Speaker 07:
that we treat those things as happening, going to happen in the future.

[01:23:40] Speaker 07:
We look at a future scenario in which there are a lot more oil wells and there are a lot of oil trains shipping along the Pacific line.

[01:23:51] Speaker 07:
We treat that as the state of affairs and then we're assessing the incremental contribution to

[01:23:58] Speaker 07:
you know, the cacti and the fishes and the greenhouse gases of the construction and operation of the project line.

[01:24:06] Speaker 07:
Is that a correct analysis of what the cumulative effect treatment was?

[01:24:11] Speaker 08:
No.

[01:24:12] Speaker 08:
What we did here was we fully analyzed greenhouse gas emissions from construction and operation of the line, and then under the cumulative impacts,

[01:24:22] Speaker 08:
We looked at all of the greenhouse gas emissions that could conceivably result from upstream oil well development in the basin.

[01:24:33] Speaker 08:
We estimated the number of wells that would be needed to

[01:24:37] Speaker 08:
to produce the oil to meet the low and high production scenarios.

[01:24:42] Speaker 08:
We looked at the likely types of wells that would be done and we looked at what emissions could be caused by both the construction and operation of those wells.

[01:24:52] Speaker 08:
We looked at what other facilities such as terminals and other ancillary facilities that would likely be built in connection with that oil development and we examined the greenhouse gas emissions

[01:25:04] Speaker 08:
from both the construction and operation of those facilities.

[01:25:08] Speaker 08:
We looked at the effect of increased truck traffic in the basin, carrying oil from the ancillary facilities and the wells to the rail terminals.

[01:25:19] Speaker 08:
There is no source of greenhouse gas emissions with respect to that upstream oil development that we did not look at.

[01:25:28] Speaker 08:
And in fact, the petition- And downstream.

[01:25:31] Speaker 07:
Again, we don't have any information on downstream.

[01:25:33] Speaker 07:
Well, there was the rough, there was the high and the low production.

[01:25:36] Speaker 08:
And so we did a full burn analysis, which is the most conservative estimation we could have done, because as we noted, it is very unlikely that none of this oil will displace existing oil, and that all of this oil will be refined.

[01:25:54] Speaker 08:
So we looked at the upper limit

[01:25:56] Speaker 08:
of what greenhouse gas emissions would be.

[01:26:00] Speaker 07:
I don't think that the petitioners are disputing that.

[01:26:03] Speaker 07:
But what the question was, was not whether you identified it, but how you characterized it.

[01:26:09] Speaker 07:
You said we looked at the cumulative effect, the construction and operation of the line.

[01:26:17] Speaker 07:
And then you said you looked at all that can conceivably result from upstream activities, downstream activities.

[01:26:22] Speaker 07:
I take it that the paragraph break between those two, that when you talk about all that could conceivably result from upstream and downstream activities, you're treating those not as

[01:26:32] Speaker 07:
effects of this project.

[01:26:33] Speaker 07:
Is that correct?

[01:26:35] Speaker 05:
No.

[01:26:35] Speaker 07:
It's not correct.

[01:26:36] Speaker 08:
Cumulative impacts are impacts from the project.

[01:26:41] Speaker 08:
They are simply, as the regulation states, they are impacts in which third parties are involved, in which there may be intervening actions, or they are not regionally close to the project, but they are impacts, and there is nothing in the regulation.

[01:26:58] Speaker 08:
Nor I will point out in the board's decision that says because these are cumulative impacts, we are treating them any differently than indirect impacts.

[01:27:07] Speaker 08:
These were all considered.

[01:27:09] Speaker 07:
How could, what was the question the board was trying to answer in approving this project?

[01:27:23] Speaker 07:
It wasn't looking at whether it was financially viable.

[01:27:27] Speaker 07:
It's clear about that, right?

[01:27:29] Speaker 07:
It wasn't looking at whether it was, as an engineering matter, feasible, because it kicked the can down the road on geologic effects.

[01:27:42] Speaker 07:
It wasn't looking at whether it was good environmental policy to enable the extraction and exploitation of

[01:27:55] Speaker 07:
oil at a time to contribute potentially large amounts of greenhouse gases.

[01:28:04] Speaker 07:
So what was the checkbox saying, like, this is a great idea, or this is an acceptable idea, or this is permissible under what our remit is looking at?

[01:28:19] Speaker 08:
Well, I think that's an important question.

[01:28:21] Speaker 08:
We are a transportation agency.

[01:28:23] Speaker 08:
And if you look at the construction statute 10901, there is an affirmative presumption that we shall approve construction applications or exemptions unless it is inconsistent with the public convenience and necessity.

[01:28:41] Speaker 08:
And I see I'm out of time.

[01:28:42] Speaker 07:
You should go on.

[01:28:43] Speaker 08:
OK.

[01:28:45] Speaker 08:
And so it is in determining

[01:28:49] Speaker 08:
So there's the affirmative presumption that we should be approving.

[01:28:54] Speaker 08:
And that is our starting point and that is

[01:28:58] Speaker 08:
The first question before the agency.

[01:29:00] Speaker 08:
Yeah, keep going.

[01:29:01] Speaker 08:
And so when you look at the exemption process, then you look at the RTP factors, those rail transportation policy factors, and you weigh those that are relevant.

[01:29:12] Speaker 08:
And that encompasses all of those policies, whether they be competition, whether they be

[01:29:21] Speaker 08:
whether they be the sound economic policy or transportation policy.

[01:29:28] Speaker 07:
In what respect is this sound economic policy?

[01:29:30] Speaker 07:
I just found myself really unable to understand that.

[01:29:34] Speaker 07:
If you're bracketing the notion that it's going to be financially feasible, that's the problem of the counties, right?

[01:29:47] Speaker 07:
if it's out of their pocket.

[01:29:49] Speaker 07:
I guess the dissenting commission recognized that the market is very soft for this commodity, so there's no private oil company jumping in to try to pay for this rail line.

[01:30:03] Speaker 07:
When you look at the economics of it, from the STB perspective, what are they?

[01:30:08] Speaker 08:
What are you assessing?

[01:30:10] Speaker 08:
The board does not assess the financial viability of a project.

[01:30:15] Speaker 08:
We look at the transportation merits in the context of our statutory mandate is to promote rail transportation.

[01:30:26] Speaker 08:
And so we have repeatedly said the financial viability of the project is something that we don't look at and is something that will be determined by the markets.

[01:30:36] Speaker 08:
our grant of authority is permissive.

[01:30:40] Speaker 07:
Right, I understand that, but you were referring to, and I'm just looking for the statute so I have it right in front of me, one of the rail transportation policies is economic conditions in transportation.

[01:31:01] Speaker 07:
What does that mean?

[01:31:04] Speaker 08:
I think that that is a very broad policy type factor as to whether this fosters development of the rail transportation network.

[01:31:15] Speaker 08:
Always.

[01:31:16] Speaker 07:
Building new rails, always.

[01:31:17] Speaker 07:
It feels tautological.

[01:31:19] Speaker 08:
Is it more than tautological?

[01:31:22] Speaker 08:
In most cases, that does support granting it.

[01:31:26] Speaker 08:
But again, it is one of 15 factors.

[01:31:29] Speaker 08:
And yes, our statutory mandate is to foster development and maintenance and health of the rail transportation network.

[01:31:36] Speaker 07:
And then the one to reduce regulatory barriers to entry.

[01:31:39] Speaker 07:
Correct.

[01:31:40] Speaker 07:
Approving a rail line with very little scrutiny is, again, it feels tautological.

[01:31:47] Speaker 07:
But let's not regulate.

[01:31:48] Speaker 07:
Come on in.

[01:31:50] Speaker 07:
What was the scrutiny on that factor?

[01:31:52] Speaker 08:
So the question is not let's reduce regulatory barriers regardless.

[01:32:00] Speaker 08:
It is that that is one of the factors that we need to consider.

[01:32:05] Speaker 08:
And if you look at 105.02, again, there is the shall language.

[01:32:09] Speaker 07:
No, I know.

[01:32:10] Speaker 07:
I understand that.

[01:32:11] Speaker 07:
I understand.

[01:32:12] Speaker 07:
I'm trying to understand the factors and kind of because the order

[01:32:18] Speaker 07:
is pretty general and somewhat totalitarian.

[01:32:21] Speaker 07:
I mean I love trains and I appreciate that you have a narrow remit and that we're not doing de novo review by any means.

[01:32:28] Speaker 07:
So I'm just trying to get a better appreciation

[01:32:31] Speaker 07:
of what you are actually scrutinizing for and what would be a red flag and make you say, no, if it's a new rail line, it's not, there's not a problem of, you know, market power, there's, there is, I mean, competition, not really on this record, but, you know, what are you really trying to sniff out?

[01:32:58] Speaker 08:
it is a weighing of a combination of factors, both the transportation type factors, such as does this foster competition and reducing barriers.

[01:33:11] Speaker 08:
And again, the reducing barriers is a mandate that we have received as something we need to consider.

[01:33:17] Speaker 07:
I appreciate that.

[01:33:18] Speaker 07:
Yeah.

[01:33:19] Speaker 07:
But it's just what would be a

[01:33:24] Speaker 07:
project where expedited consideration wouldn't reduce barriers or where you're saying go ahead without more scrutiny wouldn't reduce barriers.

[01:33:33] Speaker 08:
What it is is that it's not necessary that this is not a case in which

[01:33:39] Speaker 08:
It's a matter of unnecessary regulatory barriers.

[01:33:43] Speaker 08:
So are we going to make them jump through additional hoops that are not going to and file additional papers and answer additional questions that ultimately don't serve a rail transportation policy purpose?

[01:33:59] Speaker 06:
I'll give you an example.

[01:33:59] Speaker 06:
How about Texas Central when you all said there are so many questions about the financial

[01:34:04] Speaker 06:
viability of this project that we're denying an exemption and they're going to have to go through the full 10901 process and then comply with your regulations which require disclosure.

[01:34:13] Speaker 06:
Your 1150.6 requires extensive financial information disclosure.

[01:34:22] Speaker 06:
How is that reconciled with the board statement here that we don't care about the finances?

[01:34:27] Speaker 08:
In that case, it wasn't a matter of, you need to tell us where the financing has come from.

[01:34:33] Speaker 08:
That was a case where the estimates as to costs changed over the course of different filings, where there was insufficient explanation, it was contradictory information.

[01:34:46] Speaker 06:
Why does it matter if you don't look at finances?

[01:34:48] Speaker 06:
All you're doing is figuring out, should we have a real line here or not?

[01:34:50] Speaker 06:
And if we say yes and they never build it, oh well.

[01:34:53] Speaker 08:
It's not mandatory, it's permissive.

[01:34:55] Speaker 08:
And I think that in Texas rail, enough of an issue was raised that frankly, we couldn't sort out what some of the important aspects of the project again, because- What does it take for enough of a financial issue to be raised?

[01:35:10] Speaker 06:
Because there's plenty of question marks here.

[01:35:14] Speaker 06:
that have been raised and the board noted some of those arguments and then just said, but it doesn't matter to us at all.

[01:35:22] Speaker 06:
I mean, when you get this heavily redacted document about financing and then, you know, just be questionable, we're going to try this, we're going to try that, nothing's pinned down and, you know, the market for waxy crude oil, shall we say, is not piping hot.

[01:35:42] Speaker 06:
I don't understand why that's not enough.

[01:35:45] Speaker 06:
I didn't see the board explain to us why this was different, materially different so that we didn't need to go through that process.

[01:36:00] Speaker 08:
at the cases we cite to, we do know Texas Central and we do know why that was different.

[01:36:08] Speaker 06:
Tell me where the board tells me why that was more.

[01:36:12] Speaker 06:
The board says that was so different.

[01:36:18] Speaker 08:
And there are notations in, and I will look for it while I continue.

[01:36:23] Speaker 06:
Sorry, it's hard to argue at the same time.

[01:36:26] Speaker 08:
Because I do not recall whether it was in the preliminary decision.

[01:36:30] Speaker 08:
I believe that was in the preliminary decision and not the final decision, but the preliminary.

[01:36:35] Speaker 08:
They don't have to reconsider that as part of transportation merits of the final decision?

[01:36:39] Speaker 08:
The information.

[01:36:40] Speaker 08:
did not change between the, so there was no reason to read.

[01:36:46] Speaker 06:
So finances didn't get any better?

[01:36:47] Speaker 08:
There was no additional information that would have caused us to further to question and need to reevaluate that.

[01:36:55] Speaker 08:
And again, the financial viability is not specifically one of the RTP factors, which is why we generally leave it to the markets.

[01:37:04] Speaker 06:
I was a little confused because I wasn't sure which factor it was, but then you've got these cases that go hang on, hang on.

[01:37:09] Speaker 06:
If we have big question marks, we are not going to give you an exemption.

[01:37:12] Speaker 06:
So it sounds like it might be baked into one of these economic factors.

[01:37:17] Speaker 08:
You know, without knowing the specific cases, again, I think that the Texas Central is one of the few, if not

[01:37:30] Speaker 08:
of one of only two cases I'm aware of where the financial viability was a serious enough issue that we felt it went to, that more information was needed or simply that the application would be denied.

[01:37:44] Speaker 08:
And in the majority of cases when it's simply a question of will this party get enough financing, that's not something we look at, that's something we leave to the markets and that's a long established practice and position of the board.

[01:38:02] Speaker 06:
It's, I think it's J-7-8 that you might want, but I don't know.

[01:38:05] Speaker 08:
Yes, I believe you are correct, and that's where we discuss those cases in the financial and the fact that we leave the financial issues to the market.

[01:38:15] Speaker 06:
And I think it doesn't include inconsistent statements from petitioners to projects costs.

[01:38:20] Speaker 06:
It just includes no explanation except a heavily redacted argument document that we can't see.

[01:38:25] Speaker 06:
And so that's the material difference.

[01:38:29] Speaker 08:
I'm sorry, I'm not.

[01:38:30] Speaker 06:
They say, unlike Texas, there weren't inconsistent statements.

[01:38:34] Speaker 06:
Instead, we have Stephanie in silence about how they're gonna get from the, what do they have, the 27 million to the enormous amount of money they're gonna need to build this thing and operate it.

[01:38:46] Speaker 06:
So silence.

[01:38:47] Speaker 08:
I'm not, I don't believe that the estimates for the cost of the rail line were inconsistent.

[01:38:54] Speaker 06:
So inconsistency is the only thing.

[01:38:57] Speaker 08:
It's not the only thing, but it was one of the primary factors in Texas Central.

[01:39:01] Speaker 06:
It was there.

[01:39:02] Speaker 06:
I'm just trying to say, is it a reasoned decision to say, well, they haven't been inconsistent because they haven't told us anything.

[01:39:08] Speaker 06:
Is that a reasoned distinction?

[01:39:10] Speaker 08:
And again, I don't think they told us nothing.

[01:39:12] Speaker 08:
There was information about financing, and that

[01:39:17] Speaker 08:
R&L Bank's report I don't believe is the only source of financing information in the entire record.

[01:39:23] Speaker 06:
There's some uncertainty as to financing beyond the $27.9 million.

[01:39:28] Speaker 08:
And that means that they have not actually teamed the bankers or the investors to fund this, not that they are not, don't even know how much the rail line is going to cost, which was a significant part of the problem in Texas.

[01:39:42] Speaker 07:
And the costs here are, this is totally off the top of my head, we have a lot of other facts and figures from other cases, it's like one and a half to two and a half billion?

[01:39:53] Speaker 08:
going based on my memory, your honor.

[01:39:57] Speaker 08:
Yes, I believe that's accurate.

[01:39:59] Speaker 08:
And if you look at it, that should be in the purpose and need chapter of the EIS discusses the cost.

[01:40:13] Speaker 07:
And I should know this, and it may be in the briefing, that the reason why the STB's environmental arm does the

[01:40:23] Speaker 07:
environmental impact statement here is, that's just always the case?

[01:40:29] Speaker 08:
Yes, that is an integral part of the board and they do the environmental reviews on behalf of and for the board's use.

[01:40:39] Speaker 07:
And do they work with EPA or?

[01:40:41] Speaker 07:
Do they work with?

[01:40:42] Speaker 07:
The Environmental Protection Agency?

[01:40:44] Speaker 07:
Do they work with who?

[01:40:45] Speaker 07:
The board?

[01:40:46] Speaker 07:
Does the OAS work with the Environmental Protection Agency or not?

[01:40:54] Speaker 08:
They work with every agency for which they should consult under NEPA.

[01:41:00] Speaker 08:
And so in this case they are acting as the board in the EIS process and as the board in this application was the lead agency.

[01:41:10] Speaker 08:
They consulted with multiple other federal agencies

[01:41:14] Speaker 08:
including BLM, Fish and Wildlife, Forest Service, etc.

[01:41:21] Speaker 09:
Can you say anything about the challenges, inadequate consideration of landslide risk and lack of appropriate geological mapping, that challenge?

[01:41:39] Speaker 08:
argument with respect to the geological mapping misrepresents what the board did and what the board looked at.

[01:41:45] Speaker 08:
If you look at the record, there is a list of data, multiple data sources that the board used to assess seismic and geological risks, including for mass movement.

[01:41:57] Speaker 08:
The incomplete mapping was of one single formation.

[01:42:03] Speaker 08:
We acknowledged that the mapping for that particular

[01:42:08] Speaker 08:
Formation was incomplete.

[01:42:10] Speaker 08:
We pointed to the other information that we had to assess geological conditions, and we made an affirmative statement that finding that it did not affect our ability to compare the alternatives.

[01:42:22] Speaker 07:
Thank you.

[01:42:25] Speaker 07:
So what on the geological, would it be within the board's power to sort of hold the petitions subject to

[01:42:38] Speaker 07:
engineering review that says this there's not going to be an excess landslide risk.

[01:42:44] Speaker 08:
So again the board was confident in the EIS and made the affirmative finding that it could make a reasonable determination of landslide risks and that the imposition of the mitigation on remedies for that for when the actual construction occurred would be adequate to address that risk.

[01:43:05] Speaker 08:
And again so this is

[01:43:08] Speaker 08:
It is equally in the coalition's interest to build this line in an area where there is not going to be a landslide that's going to destroy their railroad.

[01:43:19] Speaker 08:
So it's not as if there would be some economic advantage to the shortcut here.

[01:43:24] Speaker 08:
And I think if you imposed the requirement that it seems that petitioner CBD wants,

[01:43:32] Speaker 08:
that we could not approve the project until we had a single, until we had done field surveys and geological engineering for every inch of where these hundred mile lines were gonna be, then we would never approve a line.

[01:43:50] Speaker 07:
And there hasn't been any stay or anything?

[01:43:52] Speaker 07:
They could go ahead with the building while this is on appeal to us?

[01:43:58] Speaker 08:
They have, as far as I know,

[01:44:02] Speaker 08:
Theoretically, they could go forward, but certainly this project, I don't think, and perhaps my co-counsel will be in a better position.

[01:44:14] Speaker 08:
I don't think it's near to breaking ground on anything because there is much work, preliminary work to be done from acquiring property rights, et cetera, and that type of thing.

[01:44:25] Speaker 08:
But as this court held in several cases,

[01:44:30] Speaker 08:
including public utility commissions of California.

[01:44:33] Speaker 08:
It is appropriate to have adaptive mitigation and requirements as to

[01:44:40] Speaker 08:
what the applicant must do and have those implemented when the exact right of way is determined and it has not been determined yet.

[01:44:51] Speaker 08:
It may shift by a few feet here in places because of engineering challenges.

[01:44:58] Speaker 08:
And again, we looked at, the board looked at the types of

[01:45:05] Speaker 08:
engineering solutions, there would be two landslide risks.

[01:45:10] Speaker 08:
And it felt that there was no risk here that could not be mitigated by engineering and design on these three alternatives that we examined, and certainly on the one that we authorized for construction.

[01:45:24] Speaker 06:
Do your mitigation risks say that if the landslide risk reaches a certain level?

[01:45:31] Speaker 06:
50%.

[01:45:31] Speaker 06:
They should not build there, or it's just do a survey so you know what the risk is before you build.

[01:45:39] Speaker 08:
It is that they are required to mitigate the risk.

[01:45:42] Speaker 08:
They have tried to assess and mitigate, and they are required to report back to us that they have done so.

[01:45:49] Speaker 06:
But what does mitigate how much?

[01:45:52] Speaker 06:
I'm not sure what that means, a report to you that they've done so.

[01:45:55] Speaker 06:
Fine, we discovered that there's a 90% chance of a landslide here.

[01:46:01] Speaker 06:
We've got it down to 85, just letting you know.

[01:46:03] Speaker 08:
I don't believe the EIS or the mitigation assigns a percentage to it, but again,

[01:46:09] Speaker 08:
If there is a significant landslide risk, then there's no point in constructing the rail line.

[01:46:17] Speaker 08:
Because the landslide will take out the rail line.

[01:46:20] Speaker 06:
If the risk comes from where they're building a well, then wells aren't going to have to be right next to the rail line.

[01:46:26] Speaker 06:
They build more wells because of this, and that's where you get landslide risk as well, correct?

[01:46:34] Speaker 08:
Well, I thought we were still talking about the right-of-way.

[01:46:37] Speaker 08:
If we're talking about landslide risk from wells, we can't assess that risk without knowing where the wells are going to be.

[01:46:43] Speaker 06:
No, but you could impose mitigation measures just like this.

[01:46:46] Speaker 08:
any jurisdiction or authority over the development of these wells.

[01:46:50] Speaker 06:
The railway shall not transport any oil that is not produced through a process that engages in mitigation of landslide risks.

[01:46:58] Speaker 06:
No oil that isn't produced through a mitigation process and analysis shall be transported on that railway.

[01:47:04] Speaker 06:
You could do that, couldn't you?

[01:47:06] Speaker 08:
I think that that would make us a policeman for commodities.

[01:47:11] Speaker 06:
So you're disavowing your authority to do that?

[01:47:15] Speaker 08:
I don't believe we have the jurisdiction to police commodities in that way.

[01:47:21] Speaker 08:
We are a transportation agency.

[01:47:23] Speaker 08:
There is a long-standing, unchallenged principle that

[01:47:32] Speaker 08:
rail service, reasonable requests for rail service will be provided regardless of the commodity.

[01:47:39] Speaker 08:
And if you get us into the business of policing the types of commodities that can be carried, that's inconsistent with that.

[01:47:48] Speaker 08:
And it makes a transportation agency the arbiter of

[01:47:53] Speaker 08:
what products come to market.

[01:47:55] Speaker 08:
And that's not, clearly not part of our, the scope of our statutory authority is beyond what Congress has envisioned for us looking at our statutes and even looking at the amendments.

[01:48:07] Speaker 06:
So the board has never put conditions on, conditions for safety and health, public safety and health on what products can go in.

[01:48:16] Speaker 08:
On the commodities.

[01:48:18] Speaker 08:
not before they are on the train.

[01:48:21] Speaker 08:
And it's FRA and PINSA.

[01:48:23] Speaker 08:
No, no, just conditioning what can come on the trains.

[01:48:26] Speaker 08:
Again, that is beyond the scope of our authority.

[01:48:29] Speaker 08:
We are not the arbiter of the commodities that are carried.

[01:48:32] Speaker 08:
That is, if you look at our statutes, that is well beyond what Congress gave us the authority to do.

[01:48:43] Speaker 08:
We are a rail transportation agency, and so we can impose

[01:48:48] Speaker 08:
We can impose requirements on the rail carriers and the rail lines, but once we start

[01:48:56] Speaker 08:
issuing edicts about what rail lines are allowed to carry and what they are not.

[01:49:01] Speaker 07:
We have now violated the underlying, and that is inconsistent with the underlying principle of... But don't you always, when you're looking at public convenience and necessity and something going off into Alaska that's going to open up, you know, communities for tourism, for people who live there, to allow people to commute to work, I mean, you're always looking at that.

[01:49:23] Speaker 07:
I think that.

[01:49:24] Speaker 08:
Is it trade, is it commuter, is it both?

[01:49:30] Speaker 08:
If I'm understanding your honor's question, I think that, I think it's an open question whether the board could ever

[01:49:39] Speaker 08:
whether the environmental impacts of the commodities being carried could ever overcome the presumption that we grant construction petitions.

[01:49:51] Speaker 06:
Clearly in this case, the board did not think that they... Sorry, just because you just said while the statute requires this balancing, you can't imagine a situation where the environmental consequences would ever outweigh

[01:50:09] Speaker 06:
the presumption in favor of building.

[01:50:18] Speaker 08:
What I said or meant to say if I misspoke and I apologize was that it is an open question that the board has not addressed whether those impacts could be great enough to overcome that presumption.

[01:50:33] Speaker 08:
I think that

[01:50:35] Speaker 08:
And again, the board hasn't answered that question.

[01:50:38] Speaker 08:
I think that theoretically there could be an instance in which it could, but it did not hear.

[01:50:44] Speaker 08:
And I think there's two questions here.

[01:50:46] Speaker 08:
One, could the environmental impacts overcome that presumption, which they didn't hear because the board clearly weighed those impacts.

[01:50:55] Speaker 08:
And two,

[01:50:57] Speaker 08:
even if they were more significant, there's the open question of whether that puts us in the business of regulating commodities and whether we could do that.

[01:51:06] Speaker 06:
And I... Well, you pretty clearly, your thought about the broader economy consequences for this region as part of your transportation merits.

[01:51:18] Speaker 06:
The board clearly did that.

[01:51:20] Speaker 08:
We looked at it certainly as part of the EIS.

[01:51:24] Speaker 06:
Even part of the preliminary decision of transportation merits, why this is going to allow economic, it doesn't sound like transportation or trains to me, it's going to allow economic development, diversification of the economy, it's going to allow, you know, that's going to enrich the lives of the people who live here who will now have more ability to grow more things and do more things and move things in and out.

[01:51:42] Speaker 06:
But you can't, so you can consider that on the transportation merit side, but you cannot consider

[01:51:48] Speaker 06:
The cost of doing this is landslides in people's backyards.

[01:51:56] Speaker 08:
We looked at landslides from the rail line and I will say without... Not from the rail line, from the oil wells.

[01:52:04] Speaker 08:
And we looked at the geological risks related to wells.

[01:52:08] Speaker 08:
We gave our

[01:52:11] Speaker 08:
We gave our assessment of the impact to the extent that we could without specific well location.

[01:52:17] Speaker 06:
But you just said it's out of your wheelhouse to factor that in.

[01:52:19] Speaker 06:
I'm sorry?

[01:52:21] Speaker 06:
You just said it's out of your wheelhouse to factor that in, because there's nothing you can do to mitigate it.

[01:52:26] Speaker 06:
So there's nothing we can do about that risk, the oil well landslide risk.

[01:52:30] Speaker 08:
Whether we can mitigate something is different from whether we consider it as an impact.

[01:52:35] Speaker 08:
So the ability to mitigate that is outside of our wheelhouse

[01:52:41] Speaker 06:
Because the ability to promote things is in your wheelhouse, but the ability to mitigate things is not.

[01:52:46] Speaker 08:
I'm not sure that's a fair characterization of what we did.

[01:52:49] Speaker 06:
You're promoting economic development.

[01:52:52] Speaker 06:
diversity of transportation options.

[01:52:55] Speaker 06:
That's promoting things that are not transportation.

[01:52:58] Speaker 08:
But promoting them is different from imposing mitigation.

[01:53:03] Speaker 06:
I just said exactly that.

[01:53:05] Speaker 06:
You can promote, but you can't mitigate.

[01:53:07] Speaker 06:
You resisted, but it sounds like that is your position.

[01:53:09] Speaker 08:
We can acknowledge both the benefits and adverse impacts from our decision, which is what we did both with respect to diversification and

[01:53:22] Speaker 08:
economic development in the basin, as well as impacts for geological risks, which were in fact addressed with respect to upstream oil development to the extent they could be expressly addressed without knowing the exact location of where these wells were going to be, because we have no information about that.

[01:53:44] Speaker 06:
Do we have any more questions?

[01:53:47] Speaker 06:
Great.

[01:53:47] Speaker 06:
Thank you very much.

[01:53:54] Speaker 06:
Mr. Hemminger.

[01:54:13] Speaker 00:
I'd like to wish you good afternoon.

[01:54:15] Speaker 00:
May it please the court, Justin Heminger, for the U.S.

[01:54:18] Speaker 00:
Fish and Wildlife Service.

[01:54:20] Speaker 00:
I know we've been here a while, so I'll try to keep this brief.

[01:54:24] Speaker 00:
I have two points to make.

[01:54:25] Speaker 00:
The first is on standing, and then I'd like to address the merits of the challenge to the U.S.

[01:54:30] Speaker 00:
Fish and Wildlife Service's biological opinion.

[01:54:33] Speaker 00:
So first the petitioners lack standing because they don't face an injury or their members don't face an injury that would be caused by this biological opinion.

[01:54:44] Speaker 00:
And I'll just try to boil it down to what I think is the basics here.

[01:54:49] Speaker 00:
The petitioners in their reply brief assert that they face a risk of injury, that their members face a risk of injury.

[01:54:56] Speaker 00:
And that risk to them comes from, they assert comes from

[01:55:01] Speaker 00:
the risk of an accident happening not on this new railroad, but on the existing Union Pacific line.

[01:55:09] Speaker 07:
But if they're right, I mean, we tend to address standing, even in a case in which we're disposed against the plaintiffs on the merits, we tend to address standing by assuming that their claim would prevail and looking at whether it would redress the harms they assert.

[01:55:27] Speaker 07:
And here, they're saying,

[01:55:29] Speaker 07:
you should have treated the risks on the Union Pacific Line as caused by the project and addressed them differently.

[01:55:38] Speaker 07:
And if they get relief, then wouldn't that redress their climate injuries?

[01:55:47] Speaker 00:
So there is a little bit of overlap here between the merits and the standing inquiry, but our position is that even though standing is a much lower bar, that they haven't even met that standard.

[01:56:01] Speaker 06:
They had people who liked to go on the water and see these fish.

[01:56:05] Speaker 00:
So we don't, we certainly agree, so they submitted declarations, and the declarations say we use the river, we like the fish, and we don't, we don't.

[01:56:13] Speaker 06:
And they're not, those fish aren't going to be there, or they're going to be a lot less of them, or they're going to be covered with waxy globules if you build this thing.

[01:56:20] Speaker 06:
Why isn't that sufficient?

[01:56:22] Speaker 00:
Because it's, because there's a lack of evidence that that's going to happen.

[01:56:29] Speaker 00:
So we're talking about whether there's a substantial probability.

[01:56:33] Speaker 06:
A substantial probability.

[01:56:36] Speaker 06:
That really is completely collapsing the merits then.

[01:56:39] Speaker 00:
The court's decision in public citizen, Vinitza, says that if you're looking at injury caused by future risk of harm, and here we're talking about assets.

[01:56:49] Speaker 06:
These trains are going right by, this increase in trains is 100% attributable to building this new line.

[01:56:58] Speaker 06:
Those extra nine trains a day would not be there but for that line, for standing purposes now.

[01:57:04] Speaker 06:
And they're going right by the Colorado River.

[01:57:07] Speaker 06:
And all you gotta do is pick up a newspaper to realize that trains tip over sometimes, right?

[01:57:14] Speaker 06:
And the more trains go on, statistically, the chances of more trains tipping over, the greater, especially when they're great big, long, very long, very heavy trains filled with very flammable and leakable and leachable substances.

[01:57:30] Speaker 06:
So I don't know what more they have to show.

[01:57:33] Speaker 00:
I'm happy to turn to the merits if the court.

[01:57:38] Speaker 00:
So I would break it down into three steps here to sort of think about the risk, the potential risk.

[01:57:44] Speaker 00:
The first step would be to look at the risk of an accident.

[01:57:46] Speaker 00:
The second step would be to look at the risk that the accident results in a spill.

[01:57:50] Speaker 00:
and the size of that spill.

[01:57:52] Speaker 00:
And then the third step would be to think about this Union Pacific line is about 450 miles long.

[01:57:57] Speaker 00:
Not all of it is next to the Colorado River.

[01:58:01] Speaker 00:
Only about half of it is along the river.

[01:58:03] Speaker 00:
Only about half of that is actually critical habitat of the fishes.

[01:58:06] Speaker 00:
So, starting with the first step, the risk of an accident is between .31 and .89 trains a year.

[01:58:16] Speaker 00:
That's the loaded trains.

[01:58:17] Speaker 00:
That's the train that could result in a spill.

[01:58:19] Speaker 06:
Is that based on the national statistics?

[01:58:22] Speaker 00:
Probably.

[01:58:23] Speaker 00:
It's the evidence that's in the record.

[01:58:25] Speaker 06:
It's the evidence that... Well, there's also evidence in the record that actually the accident risk goes up when you have very long, very heavy trains.

[01:58:32] Speaker 00:
The petitioners didn't point to that evidence.

[01:58:33] Speaker 00:
It's their burden.

[01:58:34] Speaker 00:
This is their reply brief that they raised.

[01:58:37] Speaker 06:
I saw it.

[01:58:37] Speaker 06:
They must have pointed to it.

[01:58:39] Speaker 06:
OK.

[01:58:39] Speaker 00:
Well, they may have pointed.

[01:58:40] Speaker 00:
I'm sorry.

[01:58:40] Speaker 00:
They may have pointed to it in relation to a different argument.

[01:58:44] Speaker 00:
I'm talking about the environmental petitioners case for standing here.

[01:58:49] Speaker 00:
So they're saying there's an accident.

[01:58:52] Speaker 00:
And the risk is, in the low case, the low oil production scenario is 0.31.

[01:58:57] Speaker 00:
In the high, it's 0.89 trains.

[01:58:59] Speaker 00:
Then you're going to multiply that by the risk of a spill.

[01:59:01] Speaker 00:
And here I just want to point out, in the petitioner's reply brief, they say 73% of those spills are going to result in 30,000 gallons or more of a spill of 30,000 gallons or more.

[01:59:16] Speaker 00:
And they're citing the J.A.

[01:59:17] Speaker 00:
1201.

[01:59:20] Speaker 00:
We disagree with their interpretation of that.

[01:59:22] Speaker 00:
We think it's inaccurate.

[01:59:24] Speaker 00:
The risk of a spill of more than 30,000 gallons is closer to 2% of all accidents that would happen.

[01:59:32] Speaker 00:
So if you're looking at a train accident every four years.

[01:59:38] Speaker 06:
I think the fish will be unhappy even if it's less than 30,000 gallons.

[01:59:42] Speaker 06:
And then there's the perpetual sort of leaking oil stuff that comes off of trains that there's at risk going on, right?

[01:59:48] Speaker 06:
There's the vibration risks going on.

[01:59:53] Speaker 06:
So there's...

[01:59:55] Speaker 00:
But I fail to see how that shows the substantial probability of injury to these plaintiffs.

[02:00:02] Speaker 00:
And that's my only point.

[02:00:04] Speaker 00:
But to turn to the merits, I think it's a fairly simple issue here on the merits.

[02:00:08] Speaker 00:
And that is the petitioner's argument came up in the NEPA process before the board.

[02:00:18] Speaker 00:
And before the board, they said the Union Pacific line is going to

[02:00:23] Speaker 00:
cause leaks and spills that would happen on the Union Pacific line, and those will affect the fishes.

[02:00:30] Speaker 00:
The board responded to that argument and said, no, that's not a risk to the fish.

[02:00:37] Speaker 00:
That's a JA 1845 in the services administrative record.

[02:00:43] Speaker 00:
So that's the place in the record where the board addressed this issue.

[02:00:52] Speaker 06:
Right of the Fish and Wildlife Service addressing.

[02:00:56] Speaker 00:
So the Fish and Wildlife Service did not address this issue explicitly in its biological opinion.

[02:01:04] Speaker 00:
And the petitioners say, well, they needed to do that.

[02:01:08] Speaker 00:
But the explanation is in the services analysis.

[02:01:12] Speaker 00:
And that analysis is in the, excuse me, in the board's analysis.

[02:01:16] Speaker 00:
That's J1845.

[02:01:18] Speaker 00:
And that's in the services record.

[02:01:20] Speaker 00:
So if you think about the process here.

[02:01:22] Speaker 06:
I thought the Fish and Wildlife Service was the expert agency here.

[02:01:26] Speaker 06:
on figuring out these risks and these impacts.

[02:01:29] Speaker 06:
Is there any case you can point me to where we said, for purposes of a biological opinion, it's fine for the Fish and Wildlife Service to just adopt what the action agency says?

[02:01:41] Speaker 06:
Let them do the analysis for it.

[02:01:43] Speaker 00:
Right.

[02:01:43] Speaker 00:
So on this point, I don't have a case from this circuit.

[02:01:45] Speaker 00:
We've cited a case from the 11th circuit and also from the 8th circuit on that point.

[02:01:50] Speaker 00:
And I think the fundamental point here, though, is under the EPA, the question is, is it in the record?

[02:01:59] Speaker 00:
It's clearly in the record that the service looked at.

[02:02:04] Speaker 06:
Maybe in the record, but how do we know the Fish and Wildlife Service was taking it into account if it wasn't in this decision?

[02:02:09] Speaker 00:
Thank you, Your Honor.

[02:02:10] Speaker 00:
So on that point, I would walk, I would focus on the process here.

[02:02:16] Speaker 00:
Under the Endangered Species Act, Section 7 is a consultation process.

[02:02:21] Speaker 00:
So it actually is a give and take between the action agency, that's the board,

[02:02:26] Speaker 00:
and the Fish and Wildlife Service, which is the expert on these biological issues and the species.

[02:02:34] Speaker 06:
So if you start with what the service says at the very beginning... The consultation is that expert information is coming from the Fish and Wildlife Service, and we don't rely on the Service Transportation Board, which we have been told quite clearly today is really about transportation

[02:02:53] Speaker 06:
and trains, not fish, not the environment, not environmental consequences.

[02:02:59] Speaker 06:
You each have your own wheelhouses here.

[02:03:01] Speaker 06:
So that's why it just seems a little upside down to me for the Fish and Wildlife Service to say we were consulting by

[02:03:07] Speaker 06:
letting the service transportation board do the environmental analysis.

[02:03:12] Speaker 06:
And we said, OK, thanks.

[02:03:14] Speaker 00:
So on this specific issue, I actually think it is backwards because the board is the expert on rail transportation, on trains, not the service.

[02:03:26] Speaker 00:
And so the board's conclusion that the risk of a spill into the Colorado, a major spill that would reach the Colorado River and affect these fishes

[02:03:34] Speaker 00:
They're the ones that would be able to best assess what that risk is.

[02:03:37] Speaker 06:
And did you find, did your, not you, did your client.

[02:03:43] Speaker 06:
I haven't found it.

[02:03:44] Speaker 06:
Did your client agency find that the only thing that would affect these endangered species about this entire process is a major spill into the Colorado River as opposed to

[02:04:01] Speaker 06:
constant drip, drip, drip of oil, or a minor spill, or a train car falling and smashing the fishes in the water.

[02:04:11] Speaker 00:
So this brings me back to the very basics of this biological opinion.

[02:04:15] Speaker 00:
And in fact, what the service said in the biological opinion, and this would be as the fish, it's JA 1691 to 92.

[02:04:26] Speaker 00:
1691 to 92, and then the conclusion is it's 1696.

[02:04:31] Speaker 00:
In the biological opinion, what the service set is, you have a train line being built.

[02:04:36] Speaker 00:
It's not anywhere near where the fish

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

[02:04:41] Speaker 06:
At no point is not along the Colorado River?

[02:04:46] Speaker 00:
Not the new line is being built.

[02:04:51] Speaker 00:
So if you think about the new line and then it reaches Paiun, Utah, and then it starts on the Union Pacific line,

[02:04:59] Speaker 00:
about 100 miles down the Union Pacific line, it begins to parallel the Colorado River.

[02:05:06] Speaker 00:
So.

[02:05:06] Speaker 06:
And for how many miles does it do that?

[02:05:08] Speaker 00:
About 277.

[02:05:08] Speaker 00:
Okay.

[02:05:09] Speaker 00:
Or 233, excuse me.

[02:05:10] Speaker 00:
233, nine times a day.

[02:05:14] Speaker 00:
Roughly half the, the length.

[02:05:17] Speaker 00:
And then.

[02:05:17] Speaker 06:
Nine times a day the cars are going down this.

[02:05:20] Speaker 00:
Right, but it's an existing line, so what the board.

[02:05:23] Speaker 06:
No, nine times a day.

[02:05:24] Speaker 06:
There's more, nine more trains.

[02:05:26] Speaker 06:
Certainly more traffic.

[02:05:27] Speaker 06:
And I don't know if there's much evidence that there's oil tankers going on this road already, on this track road, not track, not road track already.

[02:05:37] Speaker 06:
But even assuming there is a few, there's, so there's now, the qualitative difference is that there's now a large increase in traffic volume.

[02:05:48] Speaker 06:
And it's carrying a very, very toxic substance.

[02:05:55] Speaker 00:
Yes, but the board looked at that risk, and this is J1845, the board said the risk if there would be a major spill that would reach the Colorado River is very low and not reasonably foreseeable.

[02:06:10] Speaker 06:
So the question for the servicing is- Because the board told me this just, these accidents won't happen very much.

[02:06:15] Speaker 00:
Right.

[02:06:16] Speaker 06:
So- And then where do they analyze something short of a major spill?

[02:06:23] Speaker 00:
Could you say that again?

[02:06:24] Speaker 06:
Where did the service analyze something short of a risk of something short of a major spill happening?

[02:06:29] Speaker 00:
So I think this is sort of implicit, I guess, in the board's analysis.

[02:06:35] Speaker 00:
But implicitly, less than major spill would not reach the river.

[02:06:40] Speaker 00:
So it wouldn't be a risk to the fishes.

[02:06:43] Speaker 06:
And the Fish and Wildlife Service didn't think it needed to make any independent decision about that.

[02:06:46] Speaker 00:
They didn't make an independent, they didn't say in the biological opinion.

[02:06:49] Speaker 06:
I mean, if it's right along the river, and it's just, I'm just saying it's.

[02:06:52] Speaker 00:
I understand, so there's some tension here, right?

[02:06:54] Speaker 00:
So that you would think this would be something the service would say.

[02:06:57] Speaker 00:
They would just say, the board has told us there's a low risk.

[02:07:01] Speaker 00:
We agree.

[02:07:03] Speaker 00:
We're not going to, we don't have, you know, we agree.

[02:07:06] Speaker 00:
In the back and forth, in a consultation between the board and the service,

[02:07:14] Speaker 00:
Each agency is playing a role here.

[02:07:16] Speaker 00:
The board's obligation is to provide a lot of information to the service to facilitate the consultation.

[02:07:23] Speaker 00:
But they also provide their own view that it's in a biological assessment.

[02:07:27] Speaker 00:
So the board prepared a biological assessment and said, actually, the fish may be affected by this action.

[02:07:35] Speaker 00:
Their concern, though, was from water depletions that would be related to construction.

[02:07:40] Speaker 00:
So they share all of that information with the service.

[02:07:44] Speaker 00:
That information that they share included the spill rest to the fishes.

[02:07:48] Speaker 00:
And that's, so on the first page of the services biological opinion, they say, this is JA 1648, they say, we've gotten all this information from the board about this project, we're considering it, we're looking at it, and here's our opinion.

[02:08:07] Speaker 00:
This issue is, this issue of,

[02:08:10] Speaker 00:
Could there be a major spill that would affect the fishes in the Colorado River?

[02:08:14] Speaker 00:
I think from the services view is peripheral It's just not something that they would go out of their way to affirmatively a negative state in the negative We looked at this and we conclude as the board did that this is not an indirect effect of the action

[02:08:29] Speaker 07:
That it's not an indirect effect.

[02:08:33] Speaker 00:
Correct.

[02:08:34] Speaker 00:
And I should say, since we've been throwing these words around, this is under the ESA.

[02:08:38] Speaker 00:
So under the ESA, the regulations, this is at 50 CFR 402.02, the regulations definition of indirect effect is specific to the Endangered Species Act.

[02:08:51] Speaker 00:
That definition is it has to be caused but for by the project and also has to be reasonably certain to occur.

[02:08:58] Speaker 00:
So the standard here is, is this effect, is a spill into the Colorado River reasonably certain to occur and affect these fishes?

[02:09:06] Speaker 00:
And it's not, you know, maybe they have standing, but it's not a close call when it comes to the question of, is this an effect that the service needed to study?

[02:09:16] Speaker 09:
Is the law in our circuit, though,

[02:09:20] Speaker 09:
The pretty low bar as long as it may affect an endangered species, a consultation.

[02:09:26] Speaker 00:
Judge Wilkins, that's the standard for formal consultation and that certainly applied here.

[02:09:34] Speaker 00:
The board thought that the water depletions from this project may affect the fishes.

[02:09:40] Speaker 00:
And so they went through the whole formal consultation process.

[02:09:46] Speaker 00:
I think when it comes to looking at individual, whether the downline operations are in indirect effect, you look to the regulation on indirect effects.

[02:09:56] Speaker 00:
And that says it has to be reasonably certain to occur.

[02:10:01] Speaker 06:
Any questions?

[02:10:01] Speaker 06:
All right.

[02:10:01] Speaker 06:
Thank you very much.

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

[02:10:07] Speaker 06:
Mr. Johnson, you've been waiting patiently.

[02:10:27] Speaker 01:
May it please the court, Jay Johnson, on behalf of the interveners.

[02:10:33] Speaker 01:
I thought I would start, given all the stuff that's come so far, is maybe with a question from Judge Millett about is waxy crude different in terms of how it might be refined?

[02:10:46] Speaker 01:
And there's actually evidence in the record at JA 789, which says a large portion of the Uintah Basin crude is likely to be used for lubricating oil feedstock, not for the manufacture of combustible fuels.

[02:11:00] Speaker 01:
So I do think that factors into the reasonableness of the board's downstream analysis, especially as it relates to greenhouse gases and maybe even to environmental justice.

[02:11:14] Speaker 01:
The board was ultra conservative, as Ms.

[02:11:16] Speaker 01:
Miller said.

[02:11:17] Speaker 01:
They did a full burn analysis.

[02:11:19] Speaker 01:
They assumed every drop would be burned, and that's how they calculated greenhouse gases.

[02:11:26] Speaker 01:
But the evidence in the record is that

[02:11:30] Speaker 01:
a large portion won't be burned.

[02:11:34] Speaker 01:
So I think that's relevant to the greenhouse gas discussion, to the reasonably foreseeable discussion, and to potentially environmental justice concerns.

[02:11:45] Speaker 01:
The other thing I would add about environmental.

[02:11:47] Speaker 06:
Where do they address, if we assume this stuff is going to get burned, or some percentages, the impact on the people who have to live around this refinery?

[02:11:58] Speaker 01:
Right.

[02:11:58] Speaker 01:
Well, I.

[02:12:00] Speaker 01:
They do not talk about as far as the record doesn't talk about environmental justice concerns around particular refineries.

[02:12:07] Speaker 07:
It doesn't talk about portions anticipated to be used as.

[02:12:12] Speaker 07:
lubricating oil feedstocks versus other kinds of, I mean, lubricating oil feedstocks would be refined too, wouldn't they?

[02:12:19] Speaker 01:
They would be refined but not burned so that they wouldn't generate greenhouse gases.

[02:12:23] Speaker 07:
But so I thought you related that to the environmental justice concern, which is the refineries.

[02:12:30] Speaker 01:
Right, and I guess I was- They would be refined.

[02:12:33] Speaker 01:
It would be refined, that's correct.

[02:12:35] Speaker 06:
Where is it, Andrea, 79?

[02:12:37] Speaker 01:
789, I'm sorry.

[02:12:39] Speaker 06:
That's a very different number.

[02:12:43] Speaker 07:
And then they're used for what purpose?

[02:12:48] Speaker 01:
Lubricating oil.

[02:12:49] Speaker 01:
So I guess like motor oil, things like that, that isn't ultimately burned.

[02:12:54] Speaker 07:
I'm sure there are other... I don't know, the lubricating oil in my car is burned.

[02:13:00] Speaker 07:
But it's an old car.

[02:13:04] Speaker 07:
So what is your understanding of the limits of our role in this case?

[02:13:19] Speaker 01:
In terms of reviewing the board's decision?

[02:13:22] Speaker 07:
Yes.

[02:13:23] Speaker 07:
What should we be

[02:13:25] Speaker 07:
paying attention to to make our review meaningful, but to keep it within appropriate bounds.

[02:13:33] Speaker 01:
Well, I think, you know, stepping back for NEPA purposes, you know, the real question is whether the board's review is enough to inform the public.

[02:13:43] Speaker 01:
and to inform the agency's decision making.

[02:13:46] Speaker 01:
And so long as it does those two things, which I think it does, I mean you can just, the way that the petitioners council started their whole argument with the number of oil trains and how long they are, all that stuff is in the environmental impact statement.

[02:14:00] Speaker 07:
It is, but what about the ICCTA determination?

[02:14:04] Speaker 07:
One concern is if you're going on a less public route, this abbreviated route, do the taxpayers of Utah know that this is a public development project that's gonna be funded by bonds that would be, I assume, ultimately on the taxpayers' bill and it's

[02:14:29] Speaker 07:
gonna create a quite striking amount of greenhouse gas at a time when markets for oil are somewhat flagging.

[02:14:38] Speaker 07:
So it's like, I mean, one way, and I'm obviously being tendentious on purpose to give you an opportunity to make your best case, but so the state is gonna go into debt in order to subsidize an industry that is flagging so that it can drill more oil and compete

[02:14:58] Speaker 07:
be more cost effective in competing with rising non-fossil fuel alternatives like wind and solar.

[02:15:06] Speaker 07:
Everybody, all the political forces in Utah are totally behind this.

[02:15:21] Speaker 07:
What's wrong with that description?

[02:15:25] Speaker 01:
I would point out a couple of things.

[02:15:27] Speaker 01:
The first thing is this isn't being done behind closed doors.

[02:15:30] Speaker 01:
The seven county infrastructure coalition is a public entity.

[02:15:34] Speaker 01:
It has public meetings.

[02:15:35] Speaker 01:
And so the people aren't elected to it.

[02:15:39] Speaker 07:
They're there.

[02:15:39] Speaker 07:
They're people who are in positions.

[02:15:42] Speaker 01:
I believe that's right.

[02:15:42] Speaker 01:
But they are.

[02:15:43] Speaker 01:
I think all of them are representatives of the counties.

[02:15:46] Speaker 01:
So there are elections.

[02:15:48] Speaker 06:
Your economic study from R.L.

[02:15:49] Speaker 06:
Banks sure wasn't open and transparent.

[02:15:53] Speaker 01:
Well, it's been redacted to block out competitive information, as I understand it.

[02:15:59] Speaker 01:
There are other studies.

[02:16:02] Speaker 06:
And I take it the board doesn't accept sealed materials.

[02:16:06] Speaker 06:
So the board would have a sense of this competitive information since competition was part of its decision.

[02:16:11] Speaker 01:
I don't know that the board even asked us to submit it under seal.

[02:16:15] Speaker 06:
It's an offer.

[02:16:16] Speaker 06:
It's a way to be asked.

[02:16:17] Speaker 06:
It's an offer.

[02:16:18] Speaker 01:
True, but we cited in our petition another study that's from 2011.

[02:16:25] Speaker 01:
It's called the Uintah Basin Energy and Transportation.

[02:16:28] Speaker 06:
2011?

[02:16:29] Speaker 01:
2013.

[02:16:33] Speaker 01:
But these studies take a long time, and they're expensive.

[02:16:36] Speaker 01:
So they don't happen all the time.

[02:16:39] Speaker 01:
But if you look at JA 261, you can see a citation to that study.

[02:16:43] Speaker 01:
And it's got a link, so it's public.

[02:16:45] Speaker 01:
It's a Utah study and it says some of the same information that's in the RL bank study.

[02:16:51] Speaker 06:
Including the redact, it says the same information that's redacted?

[02:16:53] Speaker 01:
Some of the same information.

[02:16:55] Speaker 06:
Well then you can unredact that stuff.

[02:16:57] Speaker 01:
An earlier version of the same information.

[02:17:00] Speaker 01:
Well I think some of the redaction has to do with pricing information, it's competitive information, you know, and so on.

[02:17:07] Speaker 07:
Competitive with who?

[02:17:09] Speaker 07:
It's the pricing of the...

[02:17:11] Speaker 07:
Well, because this is a standalone project.

[02:17:13] Speaker 07:
There aren't a lot of people competing to build it.

[02:17:15] Speaker 01:
Well, it's pricing of at least some of it, and I'm not going to stand here and say I know exactly everything that was redacted in there, but having looked through it, some of the big blocks are prices of the railroads and how much they anticipate

[02:17:31] Speaker 01:
BNSF would price versus UP would price, and that sort of information, I think, is competitive.

[02:17:37] Speaker 01:
To be the party that would build it.

[02:17:39] Speaker 01:
To carry the rail, to carry the trains from the end of the new level.

[02:17:44] Speaker 01:
Oh, got it.

[02:17:45] Speaker 07:
To allow them to run on Union Pacific.

[02:17:46] Speaker 07:
Yeah.

[02:17:47] Speaker 01:
Right.

[02:17:47] Speaker 01:
Or BNSF.

[02:17:48] Speaker 01:
I mean, they can also go on that.

[02:17:50] Speaker 01:
And that's the competitive part of it.

[02:17:53] Speaker 01:
I see.

[02:17:54] Speaker 01:
But just to circle back to Judge Pillard's question about

[02:18:00] Speaker 01:
Why build this thing that if the market for oil is flagging or things like that?

[02:18:08] Speaker 01:
I mean, I think part of the answer is that infrastructure isn't for a short-term gain.

[02:18:15] Speaker 01:
This will be here for 100 years or 200 years, like the UP line has been.

[02:18:21] Speaker 01:
And the people who live in the basin aren't only

[02:18:26] Speaker 01:
oil companies or oil producers.

[02:18:29] Speaker 01:
There are farmers and ranchers and other people who even, you know, decades from now when there might not be any more oil being shipped out, there will still be a rail line that these people can use to ship out their grain or their aggregate or whatever it might be that they have.

[02:18:46] Speaker 01:
And that will help them be competitive in the national economy, whereas now to get to the basin is difficult.

[02:18:54] Speaker 07:
But that alone, I mean, this would not be close to on your radar screen.

[02:19:01] Speaker 07:
I mean, maybe it would be on yours, because you represent this particular area.

[02:19:06] Speaker 07:
But the notion that of all the possible development projects, the thing that animates this one is the idea of exploiting this oil resource, right?

[02:19:20] Speaker 07:
It wouldn't happen without that.

[02:19:22] Speaker 07:
There's no question on that.

[02:19:24] Speaker 01:
There's no debate about that.

[02:19:25] Speaker 01:
The oil is the source of the funding for a long-term piece of infrastructure that will exist even when... But it is and it's not.

[02:19:34] Speaker 07:
It's a source of some funding, some tax and royalty revenues, but not enough that it could actually carry the cost.

[02:19:44] Speaker 07:
of putting in this or contributing anything to this infrastructure, right, to this piece.

[02:19:50] Speaker 01:
You mean the oil companies or other people?

[02:19:53] Speaker 01:
Yeah.

[02:19:53] Speaker 01:
So the financing of things like this is complicated and not really part of this case as far as I'm aware, but the knowledge that those revenues can be there is part of how you can get financing from banks and other sources.

[02:20:13] Speaker 01:
That's the simplest and probably the best I can do to explain.

[02:20:18] Speaker 07:
So what are we supposed to be scrutinizing and what are we not supposed to be scrutinizing here?

[02:20:27] Speaker 01:
Well, I think as the surface transportation board's attorney said, rail projects like this are presumed to be in the public interest.

[02:20:37] Speaker 01:
I think there are lots of good reasons why this particular one is in the public interest that we've just been discussing.

[02:20:42] Speaker 01:
So I think there's a lot of deference owed to the board's determination that this is in the public interest.

[02:20:50] Speaker 06:
I understand why it's in the interests of the people around this area.

[02:20:54] Speaker 06:
Is that the relevant public interest or are we looking at the, do we look at regionally sort of including people in Colorado or do we look nationally where we're now going to have a 1% increase in our greenhouse gas emissions?

[02:21:06] Speaker 06:
How do we, and I just don't know, maybe there's a regulation on this.

[02:21:09] Speaker 06:
When you say the public interest, then how narrow or broadly do we look at it when you're talking about sort of a

[02:21:16] Speaker 06:
I'm going to start with this development in Utah.

[02:21:19] Speaker 06:
That's where the new line is going to be is in this area of Utah, but it's going to go into Colorado and it's going to burn stuff that's going to increase the entire nation's, not to mention the world greenhouse gases.

[02:21:31] Speaker 01:
I think that the board weighed all of that as well, and again.

[02:21:34] Speaker 06:
Well, then I think then we can't say we all agree that this was a public interest project that everyone agreed on, right?

[02:21:40] Speaker 06:
That it's very much disputed then.

[02:21:43] Speaker 06:
If public interest is, there's different public interests, then it's very much in dispute, right?

[02:21:49] Speaker 01:
There's definitely a dispute over whether this is in the public interest, considered broadly.

[02:21:56] Speaker 01:
But the board knew that dispute.

[02:21:58] Speaker 01:
The board understood what the arguments were on both sides of the issue.

[02:22:02] Speaker 01:
a complete environmental impact statement in front of it.

[02:22:05] Speaker 01:
And it weighed all those things and then rules that the project should be.

[02:22:09] Speaker 06:
How much weight does it do?

[02:22:10] Speaker 06:
It tells us it has this sort of strong presumption in favor of build the railroad.

[02:22:15] Speaker 06:
And given that strong presumption, where do you see them doing a really sort of substantive evaluation of that against

[02:22:31] Speaker 06:
one percent increase in U.S.

[02:22:33] Speaker 06:
greenhouse gas emissions from this little pocket in Utah that's going to affect the whole nation and the world.

[02:22:41] Speaker 06:
And that it's worth it because this waxy oil which has an unknown demand for an unknown market but that presumably is going to go down at some point in the 100 year scenario you offered is worth it against

[02:23:01] Speaker 06:
the extraordinary environmental and public health consequences of this.

[02:23:05] Speaker 06:
I just didn't see that kind of serious balancing.

[02:23:08] Speaker 06:
I don't know if it's the presumption means they really, they need something much more catastrophic before anything will ever outweigh it or I'm just not sure.

[02:23:16] Speaker 06:
Where do you see that sort of substantive fair balancing?

[02:23:21] Speaker 01:
In the board's decision, it starts on joint appendix 28.

[02:23:25] Speaker 01:
There's a paragraph where the board says that it has assessed

[02:23:29] Speaker 01:
OEA's conclusions regarding environmental impacts and fully considered the environmental record.

[02:23:34] Speaker 01:
That sort of is the lead in to pages of discussion of all the things that are in the environmental impact statement, including the greenhouse gas discussion and the upstream oil wells.

[02:23:44] Speaker 06:
But that's not the balancing.

[02:23:45] Speaker 06:
That's getting the data before we, and then, because you have to get the impacts all on the table before you, so you don't say we're balancing when we put all the data, because we're getting the data on the table or putting them on their different scales.

[02:23:58] Speaker 06:
And so now they've got everything on the scales.

[02:24:00] Speaker 06:
And we've got this area in Utah is going to be able to develop its waxy crude oil and maybe eventually ship some cows.

[02:24:10] Speaker 06:
But really this is about developing waxy crude oil.

[02:24:13] Speaker 06:
And that's certainly important to people in your community.

[02:24:18] Speaker 06:
I'm not diminishing that at all.

[02:24:19] Speaker 06:
It sounds like it's a very difficult economic area because of these transportation constraints.

[02:24:25] Speaker 06:
And then on the other side, we have what they acknowledge is going to be some severe environmental impacts.

[02:24:31] Speaker 06:
And there's protected species and protected plants and critical habitat all along here.

[02:24:35] Speaker 06:
And by the way, 1% greenhouse increase in our national greenhouse gas emissions at a time we're supposed to be going in the other direction.

[02:24:43] Speaker 06:
And so now we've got everything on.

[02:24:44] Speaker 06:
So all those animals and plants and water and air and the people inhaling this stuff near the refineries, that's all on the scales.

[02:24:51] Speaker 06:
Now where are they doing that balancing?

[02:24:55] Speaker 01:
I would say that they're doing more in these pages starting on 28, JA-28, than just putting everything on the table.

[02:25:02] Speaker 01:
If they wanted to just put everything on the table, they could have said, there's an EIS, it's a few hundred pages long, we looked at it.

[02:25:09] Speaker 01:
Here, they actually go through the analyses in the EIS and give it some additional

[02:25:16] Speaker 06:
But it seems like they're kind of picking things off one at a time, instead of looking at, when I think of the balancing, and maybe I'm wrong about this, when I think of the ultimate balancing, it's going to have to be, you know, okay, there's that impact, but we can kind of deal with that, and then there's this impact, and we can deal with it.

[02:25:31] Speaker 06:
You've got to do them cumulatively.

[02:25:32] Speaker 06:
You've got to put all the environmental impacts on one page, and then do that ultimate final balancing.

[02:25:37] Speaker 06:
Where do they do that?

[02:25:38] Speaker 01:
I don't think there's one, there is a section at the end that's called weighing environmental impacts, but I think it's better to look at the decision as a whole.

[02:25:45] Speaker 01:
I mean, I would say the one place where they have all the impacts is the entire decision, where they discuss it.

[02:25:51] Speaker 06:
But then they're sort of picking them off piecemeal.

[02:25:54] Speaker 06:
They do have to look at it cumulatively, don't they, or not?

[02:25:57] Speaker 01:
I think they do and I think that the board is owed some deference in how it handles these things and how it discusses them.

[02:26:03] Speaker 06:
Absolutely, but I have to have a decision to defer to where they've actually done that cumulative balancing.

[02:26:09] Speaker 01:
I think there's enough in the existing final decision that explains all the things that were in the EIS.

[02:26:15] Speaker 01:
I don't really know how they do it other than

[02:26:17] Speaker 01:
in series, I mean, they go through and they acknowledge the seriousness of all the different impacts and then they... They need to add all the serious stuff up on the other end.

[02:26:30] Speaker 07:
So on the weighing part, the board talks about the substantial transportation economic benefits, bring rail service to an area that doesn't have it, provide shippers that must now rely on trucks, another shipping option,

[02:26:47] Speaker 07:
It's really the oil extraction that's at issue there, and create jobs.

[02:26:53] Speaker 07:
And I think the long-term job creation that I saw was 50 to 100 ongoing jobs in that area.

[02:26:59] Speaker 07:
I don't recall exactly.

[02:27:04] Speaker 07:
And the notion that's diversifying the local economy, I understand your sense of who knows a century from now.

[02:27:15] Speaker 07:
railway lines do last for a very long time and because of that have long projected value.

[02:27:23] Speaker 07:
But in terms of assessing whether to build this, it's not really about diversifying.

[02:27:28] Speaker 07:
It's about further exploiting a resource that is only at a 20% level compared to what it would be exploited were this built.

[02:27:37] Speaker 07:
So it's really about, it's not diversifying, it's intensifying one

[02:27:42] Speaker 07:
source of value.

[02:27:45] Speaker 01:
Well, I think diversifying is part of it as well.

[02:27:47] Speaker 01:
I mean, I'm not denying that the largest source of value is the potential for increased oil production and transportation, but I don't think it's appropriate to completely overlook the other people who even if maybe they just put a single car onto the end of a long unit train are getting their, you know, crops or

[02:28:09] Speaker 01:
mining products or whatever it might be out of there.

[02:28:13] Speaker 06:
And they're not doing crops or mining products already?

[02:28:17] Speaker 01:
Well, the best they can do now is put them on a truck and send them over.

[02:28:21] Speaker 06:
So it's not diversifying the economy?

[02:28:25] Speaker 07:
might be cheaper to do on the train.

[02:28:28] Speaker 07:
But it's just, it's minuscule, right?

[02:28:30] Speaker 07:
I mean, so it's, I mean, like the Utah brief, which starts with the sort of beautiful vision of this pastoral valley, one even wonders whether the people who were there have any idea what's coming if, you know, and it's a big if, but if the oil extraction is, you know, really a going concern,

[02:28:52] Speaker 07:
it's unclear whether this is going to be the paradise that they envision, and they'll just get on the train and zip down to Aspen in their spare time.

[02:29:05] Speaker 07:
But that's not really the animating concern.

[02:29:08] Speaker 07:
It's really about this valuable but landlocked resource, isn't it?

[02:29:15] Speaker 01:
Again, I'm not denying that if you want to say animating concern is the oil.

[02:29:22] Speaker 01:
But I do think from the perspective of the seven-counting infrastructure coalition, it's not just about the oil companies or the oil drilling.

[02:29:29] Speaker 01:
It's about everyone who lives in the valley or the basin.

[02:29:34] Speaker 01:
And, you know, even if those people are only helped a little bit, yes, maybe they're already shipping some

[02:29:40] Speaker 01:
grain out by trucks, but now they can do it cheaper or better or reach national markets.

[02:29:45] Speaker 01:
That's a good thing from the seven county infrastructure coalition perspective and from the Utah government perspective.

[02:29:50] Speaker 01:
And that's why this is, you know, that's in part why this has gained such broad support.

[02:29:56] Speaker 07:
But no passenger trains involved.

[02:30:00] Speaker 01:
Well, who knows in a hundred years.

[02:30:01] Speaker 01:
I know, I know, I know.

[02:30:03] Speaker 01:
But at present, I don't think Amtrak has any plans to be going through that.

[02:30:08] Speaker 06:
Thank you very much.

[02:30:11] Speaker 01:
Thank you.

[02:30:13] Speaker 06:
All right, Mr. Hunt and Ms.

[02:30:15] Speaker 06:
Park will give you each two minutes.

[02:30:21] Speaker 02:
Thank you, Your Honors.

[02:30:22] Speaker 02:
I just have really two points.

[02:30:25] Speaker 02:
One is about the Eagle County comment letter where we mentioned the rail transportation policy promoting energy conservation.

[02:30:34] Speaker 02:
The comment letter is JA734-773.

[02:30:38] Speaker 02:
We reference our concerns about that rail policy on page JA760.

[02:30:46] Speaker 02:
Just wanted to briefly discuss water resources and the weighing of environmental impacts by the board.

[02:30:55] Speaker 02:
The board's decision never mentions the Colorado River.

[02:30:59] Speaker 02:
The board's decision never mentions consideration of water resources downline at all.

[02:31:09] Speaker 02:
So in this litigation, the federal agencies have kind of put on their rose-colored glasses in reviewing and reciting the administrative record.

[02:31:19] Speaker 02:
The administrative record shows that there was no analysis of what is a big spill, what is a significant risk.

[02:31:28] Speaker 02:
On JA 1201, the Office of Environmental Analysis determines that one in four accidents is going to be a result of a spill.

[02:31:40] Speaker 02:
And then it has some percentages.

[02:31:42] Speaker 02:
It never goes past that.

[02:31:44] Speaker 02:
NEPA requires that the board not only look at the probability of a spill, but that the board look at the consequences of the spill.

[02:31:53] Speaker 02:
There is no analysis of consequences of the spills in the Colorado River in the record.

[02:31:59] Speaker 02:
And finally, the characterization of what is a large spill, what is a small spill.

[02:32:05] Speaker 02:
Well, a majority of the spills are going to be 30,000 gallons or more.

[02:32:10] Speaker 02:
Now, the board suggests that that's insignificant.

[02:32:14] Speaker 02:
But if you turn the previous page.

[02:32:17] Speaker 07:
I thought they said 2% would be $30,000 or more.

[02:32:20] Speaker 02:
2% on JA 1201, the Office of Environmental Analysis calculates that 2% of the spills will be $90,000.

[02:32:37] Speaker 02:
Above that, it calculates that 17% of the spills will be 30,000 gallons.

[02:32:45] Speaker 02:
Now, there's nothing in the record in terms of evaluating what that means to the environment, whether that presents a large risk to the Colorado River that runs right next to the rail.

[02:32:56] Speaker 02:
But if you look back at JA 1198, and the board's talking about other spills that have occurred,

[02:33:07] Speaker 02:
It labels the spill that occurred in 2014 in the James River in Virginia as significant as large.

[02:33:14] Speaker 02:
Well, that spill was 30,000 gallons.

[02:33:18] Speaker 02:
The same spill the board is characterizing its briefs are insignificant or present a low risk.

[02:33:24] Speaker 02:
So that is just to highlight the lack of factual evidence supporting any conclusions about risk of downline, risk of spills and impacts to water resources downline, particularly the Colorado River.

[02:33:37] Speaker 06:
Thank you.

[02:33:38] Speaker 06:
Any other questions?

[02:33:39] Speaker 06:
Thank you very much.

[02:33:55] Speaker 04:
Your honor, so I wanted to quickly address the point about where did they weigh greenhouse gas emissions from oil and gas consumption in the decision.

[02:34:08] Speaker 04:
If you go to JA45, this is where the board purportedly weighed all of the environmental harms against the transportation benefits.

[02:34:22] Speaker 04:
And what that says is, what that paragraph refers to is exclusively the indirect effects or the incremental impact of the railway, but not oil and gas production harms.

[02:34:39] Speaker 04:
That paragraph says the board recognized

[02:34:42] Speaker 04:
Board recognizes as with most other rail construction projects, the construction and operation of this line is likely to produce unavoidable environmental impacts.

[02:34:51] Speaker 04:
But the board also finds that the construction and operation of the preferred Whitmore Park alternative with the extensive mitigations imposed will minimize those impacts to the extent practicable.

[02:35:04] Speaker 04:
There is no reference, if they're only referring to impacts that can be mitigated, how can they be referencing impacts

[02:35:11] Speaker 04:
from oil and gas development, which they maintain they have no authority or no ability to mitigate.

[02:35:15] Speaker 07:
They're not, they're just talking about the construction and operation of the

[02:35:21] Speaker 07:
the the particular 88 mile line.

[02:35:24] Speaker 04:
Exactly.

[02:35:25] Speaker 04:
Yes.

[02:35:26] Speaker 04:
So I think this is just I just wanted to make that point.

[02:35:31] Speaker 04:
The other point that I wanted to make on geological hazards is that the reason why it was so important for the agency to address landslide hazards before approving the project and to have a complete analysis of landslide areas in the project area is because that also went to the board's decision to actually

[02:35:51] Speaker 04:
weigh environmental harms and to their finding that this project could carry out the rail transportation policy to operate rail transportation facilities without detriment to the public health and safety.

[02:36:05] Speaker 04:
And how could they have made the finding that this project carried out that policy without taking a look at a very significant environmental issue whether the geological

[02:36:17] Speaker 04:
stability of the project is safe enough to support these oil trains, thousands of oil trains per year going through this area.

[02:36:26] Speaker 04:
And if I may just make one more point about our Endangered Species Act claim going to Judge Wilkins' question about how does the May Effect Standard come into play here.

[02:36:35] Speaker 04:
Yes, the May Effect Standard is the trigger for formal consultation.

[02:36:42] Speaker 04:
But if there are multiple

[02:36:44] Speaker 04:
multiple types of effects that could result on a listed species, the agency can't pick and choose which ones they look at once they initiate

[02:36:58] Speaker 04:
consultation, formal consultation.

[02:37:00] Speaker 04:
Yes, water depletions they found may affect the species, and so they focused in on those.

[02:37:06] Speaker 04:
But there were these other effects from spills and leaks that they completely ignored.

[02:37:13] Speaker 04:
And because those also may affect the fish, they had to at the very least explain why they didn't need to address them.

[02:37:22] Speaker 04:
Because that met the low bar for

[02:37:26] Speaker 04:
consultation.

[02:37:27] Speaker 04:
So at the very least they had to explain why they didn't need to address it and that's the proposition in the Center for Biological Diversity case from the Ninth Circuit that we cite in our briefing.

[02:37:38] Speaker 04:
Thank you so much.

[02:37:39] Speaker 06:
Thank you very much.

[02:37:39] Speaker 06:
Thanks to all counsel for, and it was a long argument, but it was helpful to hear from all of you and there's a lot of material to cover so we're grateful.

[02:37:46] Speaker 06:
Thank you.

[02:37:46] Speaker 06:
The case is submitted.