[00:00:00] Speaker 01:
Case number 23-5308, Center for Biological Diversity, EDAL, a balance, versus United States Department of the Interior, EDAL.

[00:00:11] Speaker 01:
Mr. Tisdall for the balance, Mr. Helene for the defendant's appellee, Mr. Morota for the intervener's appellees.

[00:00:20] Speaker 02:
Good morning, Mr. Tisdall.

[00:00:21] Speaker 07:
Morning, and may it please the court.

[00:00:23] Speaker 07:
My name is Kyle Tisdell, representing the Appellants, the Center for Biological Diversity, Citizens Caring for the Future, New Mexico, Interfaith, Power and Light, and Wild Earth Guardians.

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I'm joined by my co-counsel, Morgan O'Grady and Jason Reilander at table.

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There's two points that I'd like to make today.

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First is that conservation groups have plausibly alleged concrete injuries that arise from BLM's drilling permit approvals.

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Second, conservation groups have also plausibly alleged that these injuries are proximate to the challenge drilling permits.

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Before I address these points, I believe some orientation around the nature of this case would be beneficial.

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This appeal is about whether individuals and members who live, work, and recreate in landscapes that have been overrun by ongoing oil and gas development have adequately alleged standing to challenge thousands of new drilling permits, which add to and compound the daily harms that they endure.

[00:01:24] Speaker 07:
The short answer is yes.

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This case challenges BLM's approval of over 4,000 new drilling permits

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in two of the country's largest oil and gas producing regions, New Mexico's Permian Basin and Wyoming's Powder River Basin.

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It is important to note that the permits within these basins are not functionally viewed as separate or isolated by industry or by the agency.

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Drilling permits are batched together, targeting specific formations within an industrialized matrix of new and existing wells, well pads, roads, gathering systems, compressor stations, pipelines, and processing facilities.

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Here, BLM's consideration and decision making for the challenge drilling permits involve generic cut and paste analysis, which are processed in gross on the average of 10 per day.

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And of particular note, this appeal arises at the pleading stage and is before this court on a motion to dismiss, a point where general factual allegations of injury suffice.

[00:02:30] Speaker 03:
Mr. Tisdale, how is your theory of standing that focuses on the aggregation of all of these 4,000 plus permits, how is that theory of standing consistent with cases like Murphy and other cases that have said that we don't dispense standing in gross?

[00:02:48] Speaker 03:
And because each of these permits is a separate agency action, an approval of a particular oil or gas well.

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And the theory of standing here is we can just take all of these agency actions together to think about an aggregate injury or harm.

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How is that consistent with our case law?

[00:03:08] Speaker 07:
Yes, Your Honor.

[00:03:10] Speaker 07:
What I would say is that in this case, we're not sort of challenging any oil and gas drilling permit at large in these basins.

[00:03:18] Speaker 07:
The complaint alleges and enumerates each specific application for a permit to drill that was improved by the agency.

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Plaintiffs then use maps to identify where those permits exist within the landscapes.

[00:03:34] Speaker 02:
And then- Let me just ask, it's a formal matter.

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You're not disputing that you need to establish standing with respect to every action that you're challenging.

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Correct.

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And the actions that you're challenging.

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are the permits to drill.

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Correct.

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And so in the district court, you argued that you didn't have to show harm for every individual well.

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But I take it you mean that there may be common proof of harm that applies to numbers of wells, but not that you actually don't have to prove harm with respect to each of the actions that you're challenging.

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I'd like to answer my question.

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Well, I just want to clarify what the ground rules are, because it seems like you're talking past

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what we're asking.

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And I just want to make sure that if that's understood, that you will speak within that framework.

[00:04:22] Speaker 07:
Your honor, I believe that the district court in its decision sort of misstated our representation of what we were challenging.

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I also read your brief.

[00:04:30] Speaker 07:
OK.

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So we are challenging each individual enumerator to application for permit to drill.

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We agree that standing needs to be demonstrated for each of those challenged final agency actions.

[00:04:43] Speaker 03:
But you specifically rejected

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that approach in the district court.

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That was not your theory of standing that was argued to the district court.

[00:04:52] Speaker 07:
I don't believe that there is a conflict in what we argued at the district court and what we argued at the Court of Appeals.

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And on this point, let me just say, federal defendants admit, and I'm quoting from their response brief, quote, of course, plaintiffs can rely on common allegations or evidence to establish standing to challenge multiple agency actions and

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The showings plaintiffs make to challenge similarly situated permit approvals may overlap to a significant degree or even entirely.

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So what we are alleging is, yes, we of course have to establish standing for each final agency action, but courts in this court doesn't view those

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in isolation relative to the geographic proximity of the harm that is being alleged by the in this instance, both in our complaint as well as the specific allegations of harms described by the Clarence in this case.

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Let me see if I can get that.

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Maybe it's the same question that Judge Rao asked, but maybe maybe it's different.

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To prevail, we have to believe that each of the 4,000 permit applications incurs at least one of your plaintiffs to a sufficient degree to establish standing, or do we have to

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Or is it your argument that even if there's one permit where the injury isn't really sufficient to establish standing, when you add all 4,000 together, then the injury is sufficient?

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Because that's your theory, right?

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It's not that that anyone.

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Injures it's that all 4000 do because of the cumulative effect of the 4000.

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So your honor, I would say each individual well that is improved undoubtedly results in air pollution emissions, impacts to the landscape, impacts within the vicinity of that well.

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We are also alleging that all of these permits put together do add to the cumulative impacts that are being endured by the declarants and plaintiffs in this case.

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That's for your NEPA.

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right?

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Correct.

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But if we disagree that that's how that works, then you might have standing for some of your other claims, but not the NEPA

[00:07:51] Speaker 07:
Well, let me sort of take a step back.

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So I don't think any dispute that injury is tied to the geographic proximity of the challenged agency action.

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And proximity, I think, is contextual.

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And it's contextual based on the injury being alleged by the declarants in this case for associational standing.

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For example, if the injury is due to ground disturbance from a drilling rig,

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then the view shed would be the relevant area to establish that geographic proximity.

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Whereas if the injury being alleged is from air pollution or ozone, then it would more broadly include the proximity of within that air shed.

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I think that is consistent with what this court has found in other cases and what other courts have found as well.

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So this is not dissimilar from and quite almost directly on point with what the 10th Circuit has found in two different cases dealing with Denae citizens against ruining our environment.

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And in that case, they found explicitly that plaintiffs ability to demonstrate standing

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where they challenged hundreds of BLM drilling permit approvals across the broader San Juan basin of northwest New Mexico.

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Again, those circumstances are nearly identical to the circumstances that we have here.

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I would also sledge not only is that case factually very similar, the arguments being made by defendants in that case relative to standing are precisely the same arguments that we're seeing here.

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And the 10th Circuit explicitly rejected those, providing, I quote, neither our court nor the Supreme Court has ever required an environmental plaintiff to show that it has traversed each bit of land that will be affected by the challenged agency action.

[00:09:48] Speaker 03:
In the 10th Circuit case, wasn't there a single environmental impact statement?

[00:09:52] Speaker 03:
And so wasn't there a single EIS?

[00:09:55] Speaker 07:
There was not I was actually counsel on that case as well some quite familiar with the record of that case that was a challenge to individual.

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applications for permit to drill as here.

[00:10:06] Speaker 03:
I understand it was a challenge to those individual ones, but wasn't there a single environmental impact statement?

[00:10:11] Speaker 07:
There was not.

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There was individual environmental assessments for those applications for permit to drill.

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Those permits tiered back to an environmental impact statement for the resource management plan.

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But the challenge was to each individual environmental assessment, not a challenge to the EIS.

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question about that.

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That's similar here.

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There are environmental assessments in the individual actions on the applications for permission to drill.

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But they incorporate the underlying EIS here as well.

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In Wyoming, that's almost all they do.

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And in New Mexico, they get into more depth of sort of breaking out numbers that they've

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drawn missions, numbers, and stuff that they've drawn from the underlying EIS.

[00:11:04] Speaker 02:
So in terms of relief that you're seeking, would it be inadequacy of the underlying EIS?

[00:11:12] Speaker 07:
It would not.

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And again, I don't want to conflate the merits with the standing arguments here.

[00:11:18] Speaker 02:
Go to redressability?

[00:11:21] Speaker 07:
It goes to, so the agency can on the individual applications for permit to drill the oil and gas decision making process is sort of a tiered process.

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It starts with a resource manager plan.

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It then goes to an oil and gas leasing stage and then the application for permit to drill, which is the stage that we're at now.

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So the challenges to the APDs.

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And the relief could be either denial of the APD or conditioning of the APD that would, for example, reduce the impacts to climate imperiled species, that would reduce impacts to people who live and recreate within the area.

[00:11:57] Speaker 02:
But wouldn't that go back to, I mean, what they're, as you said in your opening remarks, they batched this.

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Correct.

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Both BLM and the industry, they treat these in a more collective way.

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And so I thought that your answer would be yes.

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If you're going to invalidate the analysis in an APD, then that's dependent on an analysis in the EIS.

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So the EIS would have to be part of the remedy.

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Otherwise, you've got no remedy, right?

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And there would have to be consultation.

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I mean, are you denying that BLM can

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do countywide rely on its own regions in determining effects on air quality, I would assume that that's up to them, so that that would affect what in going after an APD, what you're going after, no?

[00:12:52] Speaker 07:
Each stage of the agency's oil and gas decision making includes a final agency action that can be challenged.

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In this case, for example, the Carlsbad Resource Management Plan, I believe the most recent resource management plan is from 1986, I believe.

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So there is not even a mention of climate change within that resource management plan.

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There's also final agency actions at the leasing stage, which will include additional analysis.

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And then, again, NEPA analysis that occurs at the APD stage.

[00:13:27] Speaker 02:
Can you challenge it?

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I thought we had precedent that you actually can't challenge EIS until there's action, final agency action, relying on it.

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So if you wanted to do a wholesale challenge, then even though that's an action in the colloquial sense, you wouldn't necessarily be able to challenge it.

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I thought that was why you were challenging the APDs.

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But I don't understand how the EIS could not be part of your relief.

[00:13:57] Speaker 07:
I don't think it necessarily needs to be part of the relief, I think is the point that I'm trying to make.

[00:14:03] Speaker 07:
I think each environmental assessment, and again, this will be at the merit stage, but each environmental assessment will include its own level of analysis that, quite frankly, oftentimes needs to fill the gap of analysis that was contained in the earlier EIS.

[00:14:20] Speaker 02:
It sounds like you're both playing the same game.

[00:14:22] Speaker 02:
They're saying, we get to batch.

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You have to do it individually, show your standing.

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And you're saying, no, no, we get to batch, ensuring our standing.

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But they have to individually do separate environmental assessments in localized, well-specific detail.

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And I'm not sure that either of you can have it both ways.

[00:14:43] Speaker 07:
Well, I think our argument is that the agency's NEPA analysis, and again, this is at the merit stage, is wholly

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insufficient for the merits claims that we're bringing.

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Their climate analysis.

[00:14:55] Speaker 02:
You wouldn't object if they respond, if you won on the merits and they responded by saying, okay, we're going to redo our region wide EIS and then we're going to do the same kind of, you know, tearing back to it that we did here.

[00:15:13] Speaker 02:
Only the values are going to be

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much more accurate and up to date.

[00:15:16] Speaker 07:
How the agency would want to address that as relief that would be granted, we would agree and concede that it would be far more efficient for the agency.

[00:15:26] Speaker 07:
They could redo their resource management plan analysis through an amendment.

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They could prepare a programmatic analysis.

[00:15:33] Speaker 07:
In Judge Contreras's

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or at the district of DC.

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We brought a challenge challenging almost 400 oil and gas leases across 480,000 acres in three western states.

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The relief that Judge Contreras found in that case was that the agency had not sufficiently analyzed

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cumulative impacts of greenhouse gas emissions.

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The agency's remedy is they prepared a specialist report on greenhouse gas emissions that they then at

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at least under the current administration, all of their oil and gas decisions include that type of analysis in their decision-making process.

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That was not contemplated by the agency for these drilling permit approvals.

[00:16:23] Speaker 07:
That was not included by the agency in these drilling permit approvals.

[00:16:25] Speaker 07:
So the agency can come into compliance with the law in any number of ways.

[00:16:31] Speaker 07:
But the point is that both individually and cumulatively,

[00:16:35] Speaker 07:
all of these wells, which they process really quickly, create a sort of individually and cumulatively of a magnitude of impacts and harm that are impacting the people that live in these landscapes, that recreate within these landscapes.

[00:16:52] Speaker 03:
What is the logical stopping point of your argument with respect to cumulative impacts?

[00:16:58] Speaker 03:
So here, there's a suit against all of these oil and gas wells.

[00:17:04] Speaker 03:
Could you also just add in logging or other agency actions that are approved on federal lands?

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I mean, is there any stopping point?

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I mean, there are lots of activities that may have environmental impacts.

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Plaintiffs have standing to kind of batch and bundle any combination of these things.

[00:17:22] Speaker 03:
I mean, how does that work?

[00:17:24] Speaker 07:
I mean, I think the relevant inquiry for injury is you both need to, the plaintiffs need to establish injury and they need to establish that there is a geographic proximity of their harm to the challenged agency actions.

[00:17:42] Speaker 03:
So it could be any agency actions.

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I mean, some of the theories seem to also rely on the fact that there have been past agency actions that have approved other oil and gas wells.

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So it's not,

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found by time, it can be past agency actions, future agency actions, unrelated agency actions, and for all of that, you can claim an injury if a plaintiff lives near that area.

[00:18:06] Speaker 07:
I believe it would be cabined by what is being challenged in the context of that case.

[00:18:12] Speaker 07:
In Denae Citizens, it was 377 applications for a permit to drill within the San Juan Basin that were approved

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within a temporal limit.

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Here the challenge is to 4,000 different applications for permit to drill that were approved during the first 20 months of the Biden administration.

[00:18:32] Speaker 03:
What is your theory of standing?

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What is the limiting principle on your theory of standing?

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Which I still don't understand is how it's consistent with cases like Murphy and other cases about standing.

[00:18:44] Speaker 07:
Well, Judge Ra, your decision in international dark skies, for example, found standing to and found injury to stargazers and astronomers' use of the sky from over 7,500 individual satellites, right?

[00:19:00] Speaker 07:
And so that is analogous, I think, to the situation that we're dealing with here, only on a far more conscribed landscape than the entirety of the sky, right?

[00:19:11] Speaker 07:
Each individual well is going to cause harm.

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Collectively, those wells together cause cumulative impacts, and those cumulative impacts are injuring people that live and recreate within these landscapes.

[00:19:25] Speaker 03:
So there's no limit.

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The limitation would be the plaintiff's ability to demonstrate injury and proximity of that harm.

[00:19:34] Speaker 03:
Physical proximity.

[00:19:36] Speaker 07:
Physical proximity, again, contextually based on the injury that they are describing.

[00:19:42] Speaker 02:
I take you to be saying that where the injury might be seismic, you would want to know how far that effect is, the radius of that effect from a well.

[00:19:52] Speaker 02:
If it's sight line, you would want to know the radius from the well of the sight lines, which may vary depending on the local topography.

[00:20:01] Speaker 02:
If it's emissions, you would want to know how far those emissions, particulate matter, let's say, is likely to be felt.

[00:20:11] Speaker 07:
That's correct.

[00:20:12] Speaker 02:
So it's not just some kind of generic geographic proximity.

[00:20:15] Speaker 02:
I have a question about your use of the construct APD area.

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And I understand that that, at least in some of the declarations, is just going to refer to the area in which these wells are as an APD area.

[00:20:29] Speaker 02:
And your friends on the other side challenge that as somewhat random.

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And I have to say, it strikes me as a little bit confusing as well, in the sense that if you decided that you wanted to draw something, an APD area that encompassed both the New Mexico drilling and the Wyoming drilling,

[00:20:52] Speaker 02:
Could that, and you say, well, and you only had a couple of your New Mexico plaintiffs, and you say, well, we're in the APD area.

[00:21:03] Speaker 02:
Would that support standing to challenge the drilling in Wyoming?

[00:21:07] Speaker 07:
No, I don't believe it would, which is why we had declarants from both that lived and recreated within New Mexico and declarants that lived and recreated within Wyoming.

[00:21:18] Speaker 07:
The APD area, I would agree it's sort of a colloquial construction, a way to describe the area.

[00:21:24] Speaker 07:
But if you look at the declarations themselves, they describe in very specific detail the roads they travel on, where they live, proximity of wells to their homes.

[00:21:37] Speaker 07:
They describe hiking trails that they go on, impacts from air pollution.

[00:21:45] Speaker 02:
Let's say I take that.

[00:21:47] Speaker 02:
I think that has to be right.

[00:21:50] Speaker 02:
But let's say there's a well in New Mexico that's 50 miles northwest of Roswell, so far from the cluster of the other wells.

[00:22:02] Speaker 02:
I would assume that for the same reasons, you would say, well, that's not within

[00:22:07] Speaker 02:
the APD area in the narrow way that you've defined it.

[00:22:12] Speaker 02:
But how do we know which are in and which are out?

[00:22:17] Speaker 07:
Well, I think here that's why we do use the maps.

[00:22:21] Speaker 07:
And in Dene Citizens Against Ruining Our Environments, there were maps that were also created for the APDs within that landscape.

[00:22:28] Speaker 07:
And so I would agree, if a well is far outlying,

[00:22:34] Speaker 07:
50 miles away, unless there is a declarant that says like I use, and I am in proximity to this specific well, then you wouldn't be able to establish standing for a well that was far outside the region.

[00:22:48] Speaker 07:
In this case, the declarants.

[00:22:51] Speaker 07:
Again, are talking about their travel within a landscape living within the landscape recreating within a landscape and very specific harms that come from these wells and in my opening remarks I sort of talked about like these wells aren't considered and aren't viewed in isolation like the Permian Basin, for example, is.

[00:23:11] Speaker 07:
the largest oil and gas producing basin in the country.

[00:23:14] Speaker 07:
There is a lot of existing wells.

[00:23:16] Speaker 02:
For example, Marcellus Shale, huge.

[00:23:18] Speaker 02:
There are geological formations that are very far flung.

[00:23:21] Speaker 02:
And it's not necessarily correlating with the injuries, in fact, of people who live above.

[00:23:28] Speaker 02:
And I didn't take you to be advancing that.

[00:23:31] Speaker 00:
Yeah, that's correct.

[00:23:32] Speaker 02:
The geologic formation.

[00:23:33] Speaker 02:
I guess my question is really, you know, the unit that BLM uses is the region which tracks onto county, and that's where they measure air quality.

[00:23:44] Speaker 02:
And so why APD?

[00:23:46] Speaker 02:
Why not region, county?

[00:23:51] Speaker 07:
Well,

[00:23:52] Speaker 07:
Again, I think the way BLM conceptualizes these things in their approval process, they're using sort of cut and paste analysis for an entire sort of local field office.

[00:24:04] Speaker 07:
In this case, for the Permian Basin, that would be the Carlsbad field office.

[00:24:08] Speaker 07:
So the analysis coming out of that...

[00:24:14] Speaker 07:
Carlsbad and Roswell in New Mexico and the Buffalo Field Office in Wyoming.

[00:24:21] Speaker 07:
The analysis coming out of those field offices are again, like very similar to one another.

[00:24:27] Speaker 07:
You cannot process APDs at the pace that they're processing them by doing new analysis for every APD that comes in.

[00:24:37] Speaker 07:
And again, over the course of those 20 months.

[00:24:40] Speaker 02:
And what they're relying on is I take it and they can correct us if we're wrong.

[00:24:44] Speaker 02:
a county-based, a region-based EIS.

[00:24:51] Speaker 07:
Their EIS in the resource management plan is the field office.

[00:24:55] Speaker 07:
So that in this instance, in the Hermian Basin, that would be Lee and Eddie counties.

[00:25:01] Speaker 07:
And I believe in Lee and Eddie counties.

[00:25:06] Speaker 07:
That is the heart of the Hermian Basin.

[00:25:09] Speaker 07:
So they're not doing unique new analysis for each APD, correct?

[00:25:14] Speaker 07:
And that analysis at the APD stage will tier to prior analyses that

[00:25:19] Speaker 07:
that the agency has done.

[00:25:21] Speaker 07:
The merits claims in this case are that the agency has failed to sufficiently take a hard look at the climate impacts of its decision making.

[00:25:33] Speaker 07:
That under the Federal Land Policy and Management Act that it's fair to take, that it's fair to account for its obligation to

[00:25:42] Speaker 07:
consider to take action to avoid unnecessary and undue degradation.

[00:25:47] Speaker 07:
And then under the Endangered Species Act, we're arguing that the agency has failed to consult with the Fish and Wildlife Service over climate imperiled species.

[00:25:56] Speaker 07:
But that is distinctive from the harms that the Clarence and plaintiffs describe relative to their impacts that they experience and endure from this magnitude of new wells going into this landscape.

[00:26:11] Speaker 02:
Except with respect to the species injuries, you cite polar bears, species around the globe, and that... The species are... Sorry, finish your question.

[00:26:24] Speaker 02:
It seems like that's in conflict with CBD versus Department of Interior 2009 case of this circuit that

[00:26:33] Speaker 02:
Injuries that are mediated by global effects of climate change are too generalized to support individual standing and just wasn't clear to me how you could have standing for your ESA claim in view of that precedent.

[00:26:48] Speaker 07:
So the Center for Biological Diversity versus Interior, I think, is distinctive in that it contemplates two different theories of standing.

[00:26:57] Speaker 07:
One is a substantive theory of standing.

[00:26:59] Speaker 07:
One is a procedural theory of standing.

[00:27:03] Speaker 07:
I would note that all of the species that were noticed in this case are not around the globe.

[00:27:09] Speaker 07:
They're all found within the United States.

[00:27:13] Speaker 07:
And in CVD versus Interior,

[00:27:17] Speaker 07:
Standing was found for the procedural injuries and quote affidavits demonstrate a sufficiently immediate and definite interest in the enjoyment of animals.

[00:27:27] Speaker 07:
The Supreme Court has recognized that it is a desire to observe species, even for purely aesthetic purposes, is undeniably a cognizable interest.

[00:27:42] Speaker 07:
So I think it's, and again, there's five different declarants that speak to their interest in viewing these climate-imperiled species within their habitats.

[00:27:53] Speaker 07:
That would include the whooping crane whose

[00:27:56] Speaker 07:
you know, wintering grounds in the Gulf Coast are going to disappear within a matter of years.

[00:28:04] Speaker 07:
So it is the injury to the individual that likes to observe that species.

[00:28:11] Speaker 07:
Now, climate change is the driver of that harm to those species.

[00:28:16] Speaker 07:
But as in growth energy, you know, this court found, you know, there were

[00:28:21] Speaker 07:
diffuse impacts from farmers in the Midwest for their biofuels production that was funneled through an agency action.

[00:28:32] Speaker 07:
And the harm to the species was in the Gulf Coast, where those species were impacted by downstream of those biofuels almost 1,000 miles.

[00:28:43] Speaker 07:
So the standing for our ESA claims

[00:28:51] Speaker 07:
our declarants interest in observing those species and climate change is a clear driver of why those species are listed.

[00:29:02] Speaker 04:
I think that one of the challenges that maybe is presented is that, you know, we look at standing, you know, as an article three jurisdictional issue.

[00:29:17] Speaker 04:
So we deal with it at the outset.

[00:29:20] Speaker 04:
And, you know, as you indicate, we, of course, have to, for the purpose of that, kind of presume that your merits arguments will be successful.

[00:29:34] Speaker 04:
But I think what's a little tricky here is does that mean that we also have to presume that you've, like, led the proper unit of prosecution, so to speak, the proper claim?

[00:29:50] Speaker 04:
I mean, normally you don't get to like rule nine, join their issues kind of until later after you address standing, but like, what if like this unit of prosecution just doesn't work?

[00:30:09] Speaker 04:
And we think that it's too broad.

[00:30:13] Speaker 04:
It needs to be, you know, segregated or cabin in the kind of,

[00:30:20] Speaker 04:
three or four pieces or something of that nature.

[00:30:22] Speaker 04:
Shouldn't we figure that out at this point rather than just kind of ignore that as an issue?

[00:30:37] Speaker 07:
Well, I think, Your Honor, you bring up a good point, right, which we are before this court at the pleading stage where general factual allegations of injury do suffice, right?

[00:30:48] Speaker 07:
And that is a clear threshold at the pleading stage.

[00:30:54] Speaker 07:
And our, I think, briefing and arguments clearly support that we have far exceeded that threshold to support our general factual allegations at this stage.

[00:31:07] Speaker 07:
The other cases that we were speaking of earlier, Dene citizens, Wild Earth Guardians, these cases are

[00:31:16] Speaker 07:
all at the merit stage, which have a different standard for the demonstration of standing.

[00:31:22] Speaker 07:
But I think, Your Honor, your question, and correct me if I'm mistaken or misstating the question, is there is a relationship between standing in harm and the allegations of claims that we're making on the merits.

[00:31:42] Speaker 07:
I would say that, you know,

[00:31:45] Speaker 07:
This is not a case of first impression.

[00:31:49] Speaker 07:
We've been prosecuting and bringing these cases in.

[00:31:52] Speaker 04:
Let me ask it a different way.

[00:31:53] Speaker 04:
OK.

[00:31:54] Speaker 04:
Because I don't think my question was very artful.

[00:31:59] Speaker 04:
So let's suppose the claim were we represent 4,000 people who are employees of Company X.

[00:32:14] Speaker 04:
and they work in various locations of company acts around the country.

[00:32:22] Speaker 04:
And each of them has been teased by their supervisor.

[00:32:35] Speaker 04:
We don't believe that kind of like the teasing individually for like one employee would be sufficient injury

[00:32:44] Speaker 04:
or standing, but if you take the cumulative effect of 4,000 people being teased and the company kind of like not doing anything about it or allowing it to happen, or even having a policy that encourages it, that when you add all of that together, that's a sufficient injury

[00:33:13] Speaker 04:
So let's suppose that's this hypothetical lawsuit.

[00:33:18] Speaker 04:
But what if at the outset we said that we don't think that all of those claims can be joined in one lawsuit?

[00:33:36] Speaker 04:
Wouldn't that factor into whether we thought that there was standing?

[00:33:42] Speaker 04:
Or would we just say, well, you've joined them all together.

[00:33:47] Speaker 04:
They're standing, at least at this point.

[00:33:51] Speaker 04:
We'll let the district court figure out, join there later.

[00:33:54] Speaker 04:
And then if that impacts standing, then they'll figure that out at that stage.

[00:34:01] Speaker 07:
Well, I would say I'm out of my depth here a little bit, Your Honor.

[00:34:07] Speaker 07:
I don't practice class action law.

[00:34:09] Speaker 07:
In that hypothetical, I would assume a class might be created and then standing.

[00:34:14] Speaker 07:
This would be similar to trans union, for example.

[00:34:17] Speaker 07:
And then the question would be, has that class been able to establish a concrete injury from the teasing?

[00:34:24] Speaker 07:
I think in this instance and in the facts of this case, when we get to the merits arguments,

[00:34:33] Speaker 07:
I think it will be a more straightforward inquiry on the merits than the hypothetical that you have because it is, there is, this is a record review case first and foremost, so the record is defined and the record is going to be based on the agency's consideration of evidence that was before it when it was making its

[00:34:55] Speaker 07:
decisions on the environmental assessments approving the APDs.

[00:35:00] Speaker 07:
In this instance, those APDs approvals include sort of boilerplate cut and paste analysis across these field offices, again, on the average of 10 per day.

[00:35:14] Speaker 07:
And if you look at an environmental assessment, they can average, you know,

[00:35:19] Speaker 07:
anywhere from from sort of a hundred to several hundred pages typically for an APD level environmental assessment.

[00:35:27] Speaker 07:
So the agency cannot do unique analysis every time it is approving these APDs.

[00:35:33] Speaker 07:
And so there are

[00:35:34] Speaker 07:
a common set of facts that we will be dealing with at the merits stage.

[00:35:40] Speaker 07:
And that will be sort of our burden to establish that at the merits stage.

[00:35:46] Speaker 07:
But I think it's the harm that is endured by plaintiffs for purposes of standing and the clearance again

[00:35:56] Speaker 07:
provide tremendous detail and specificity about the types of harms that they experience from living in a landscape overrun by oil and gas development.

[00:36:05] Speaker 07:
Those harms for standing purposes are distinctive from the record that will be before the court at the merits stage.

[00:36:21] Speaker 07:
I believe I'm through my 10 minutes, but if there are any other questions, I did think I reserved two minutes for rebuttal.

[00:36:31] Speaker 02:
Okay, we'll give you some time on rebuttal.

[00:36:33] Speaker 02:
Okay.

[00:36:34] Speaker 02:
Thank you.

[00:36:34] Speaker 02:
Thank you.

[00:36:45] Speaker 02:
Good morning, Mr. Hellenian.

[00:36:46] Speaker 05:
Hellenian.

[00:36:47] Speaker 02:
Hellenian.

[00:36:48] Speaker 05:
Hellenian.

[00:36:49] Speaker 02:
Hellenian.

[00:36:50] Speaker 02:
Thank you.

[00:36:51] Speaker 05:
Good afternoon, your honors, and may it please the court, Daniel Hellinen for the United States.

[00:36:56] Speaker 05:
We believe the district court correctly dismissed this action because plaintiffs cannot rely on aggregated allegations of harm to challenge thousands of agency actions.

[00:37:05] Speaker 02:
It would help if you would speak up just a little bit.

[00:37:12] Speaker 02:
It may be maximum height.

[00:37:14] Speaker 05:
Sorry.

[00:37:14] Speaker 05:
OK, I'll speak up.

[00:37:16] Speaker 05:
So Congress provided for leasing of oil and gas resources on federal land generally.

[00:37:21] Speaker 05:
and charged the Bureau of Land Management with making individualized determinations by reviewing and considering applications for permits to drill.

[00:37:29] Speaker 05:
Plaintiff's lawsuit in this case is seeking broad relief from oil and gas development in New Mexico and Wyoming generally.

[00:37:37] Speaker 05:
But under the APA, that type of claim can proceed, if at all, only as a challenge to these 4,019 agency actions, as I think we've discussed today.

[00:37:49] Speaker 05:
But the problem that we see in this case is that plaintiffs haven't established a sufficient level of standing to challenge each of those 4,019 permits.

[00:37:56] Speaker 02:
That's a new one, a sufficient level of standing?

[00:37:59] Speaker 05:
They haven't established standing, I apologize.

[00:38:01] Speaker 02:
They have surely established standing with respect to some of the permits to drill.

[00:38:05] Speaker 05:
I think our view is that the types of injuries that they've had alleged would likely be sufficient to support challenges to some of the APDs.

[00:38:16] Speaker 05:
But because of the way they've structured the lawsuit, we simply have no way to tell because of this sort of circle drawing technique where all of the allegations of injury are aggregated together and not associated to particular drilling permits.

[00:38:29] Speaker 02:
On the informational injury, on the ESA claim, they're saying the absence of a biological opinion, it's a document that's meant to be made public.

[00:38:43] Speaker 02:
Why doesn't an individual deprived of a biological opinion have an informational injury sufficient to support standing, and why doesn't our precedent so establish?

[00:38:55] Speaker 05:
So I think, you know, as part of the two-pronged test for informational standing, the plaintiff has to have a right under the statute to disclosure.

[00:39:04] Speaker 05:
Something like the Freedom of Information Act, of course, provides that sort of right to information.

[00:39:09] Speaker 05:
The Section 7 doesn't speak to plaintiff's rights at all.

[00:39:11] Speaker 05:
It doesn't speak to third party disclosures in any way.

[00:39:14] Speaker 05:
Section 7 is a statute that governs consultation between agencies that does, of course, produce biological opinions that plaintiffs allege that they look at.

[00:39:23] Speaker 05:
But there's not a right alleged that they look at and use.

[00:39:26] Speaker 02:
And have an entitlement to access.

[00:39:29] Speaker 05:
I think if they were to, for example, request a biological opinion under the Freedom of Information Act, that's the US Fish and Wildlife Service versus Sierra Club case from the Supreme Court.

[00:39:39] Speaker 05:
There's a right under the Freedom of Information Act, but that's not what the claim is here.

[00:39:44] Speaker 05:
They're claiming informational right under section seven itself.

[00:39:47] Speaker 02:
There's no FOIA issue here.

[00:39:53] Speaker 02:
assertion, then they would have standing?

[00:39:55] Speaker 05:
No, I don't think so.

[00:39:56] Speaker 05:
If they were to file a FOIA request and it was denied, they could add a claim and they would have standing to contest that.

[00:40:03] Speaker 05:
So I'm just using it as a comparison.

[00:40:05] Speaker 05:
There's no Section 7 right to information because Section 7 isn't a disclosure statute.

[00:40:11] Speaker 02:
Isn't it about information forcing for better public decision making, including decision making with public participation?

[00:40:18] Speaker 02:
I thought that was one of the functions.

[00:40:19] Speaker 05:
So section seven is about consultation, the Fish and Wildlife Service and the National Marine Fisheries Service providing their expert review of the Endangered Species Act issues to the action agencies.

[00:40:34] Speaker 05:
But it is not a public disclosure statute per se, because there's no language in the statute that requires the agency to disclose to a particular plaintiff, which is why I invoked FOIA, because that's a separate type of statute.

[00:40:46] Speaker 05:
And that's the way that they could

[00:40:48] Speaker 05:
request information, but that's not the claim at issue here or the type of standing that they're asserting.

[00:40:53] Speaker 02:
Your position is that had they sought or if they moving forward sought information from FOIA under FOIA from BLM and it was unavailable because it didn't exist that that would better tee up their standing to raise an informational injury

[00:41:09] Speaker 05:
No, I don't think so, Your Honor.

[00:41:11] Speaker 05:
I apologize if I'm not being clear.

[00:41:13] Speaker 05:
I think if there was a FOIA request, that would be standing only to pursue a FOIA claim, not to pursue the claim here.

[00:41:20] Speaker 05:
I'm just using FOIA as a contrast with the Section 7 statute, because Section 7 doesn't have any disclosure language in it itself.

[00:41:27] Speaker 05:
And that's what I think the informational standing cases require.

[00:41:30] Speaker 05:
If they're claiming a right to bring a Section 7 claim, an ESA claim, based off of disclosure, there's no right to disclosure in Section 7.

[00:41:39] Speaker 05:
itself.

[00:41:40] Speaker 03:
How does the Supreme Court's decision in alliance for Hippocratic medicine affect the circuit's informational standing cases?

[00:41:50] Speaker 05:
So I have a couple responses there.

[00:41:53] Speaker 05:
I think, first of all, I think it's a clear direction not to expand Haven's Realty beyond essentially the scope of where it is already.

[00:42:01] Speaker 05:
I think it is possible to read alliances creating tension with some of the cases like PETA and antivibisection.

[00:42:08] Speaker 05:
But I don't think the court needs to reach that issue in this case, because we think that even under those cases, plaintiffs don't have standing.

[00:42:16] Speaker 05:
So any tension or conflict is not directly implicated by this case.

[00:42:20] Speaker 03:
But the Supreme Court's decision certainly suggests we can't read our precedents broadly.

[00:42:25] Speaker 03:
I agree with that.

[00:42:26] Speaker 03:
At a minimum.

[00:42:26] Speaker 05:
Yes, I agree with that.

[00:42:27] Speaker 05:
And so I think applying PETA or antivirus section more broadly than the contours of those cases itself in the way that I think plaintiffs are asking the court to hear, I think that would be inconsistent with the direction of FDA versus Alliance for Hypocritic Medicine.

[00:42:44] Speaker 05:
So I think just moving on to this question of sort of their theory of standing and aggregate standing on why we think it's inconsistent with the idea of

[00:42:54] Speaker 05:
the prohibition on standing in gross.

[00:42:56] Speaker 05:
It's that I think there's a mismatch between the type of case they're seeking to bring and the nature of the standing submissions that they've made.

[00:43:06] Speaker 05:
Because looking at the First Amendment complaint, the action here is clearly about challenging oil and gas generally, development generally.

[00:43:15] Speaker 05:
And so the standing declarations are modeled to support that type of claim.

[00:43:19] Speaker 05:
But again, that's not sufficient when we're talking about challenges to 4,000 agency actions.

[00:43:24] Speaker 02:
But you don't dispute that, in general, plaintiffs can obtain standing by showing concrete injuries to them where they live, the work they recreate in geographical proximity to permitted drilling.

[00:43:41] Speaker 02:
The question is whether they've made that kind of showing with respect to all of the

[00:43:47] Speaker 02:
Drill permits involved in this case.

[00:43:49] Speaker 05:
Yes.

[00:43:50] Speaker 02:
And what about the reality that BLM does, for example, air quality assessments for every well that's permitted within the particular, what are they, the bureaus, we met that they do it on the county basis.

[00:44:11] Speaker 05:
Right.

[00:44:11] Speaker 02:
That's the data that the agency itself uses.

[00:44:15] Speaker 05:
Yeah, so I think the merits issue, I'm not, you know, disputing that the merits issues and challenges to all these APDs, not all of them, but in groups of APDs would be very similar because the issues in the government's environmental analysis will be similar across, you know, similarly situated permits.

[00:44:32] Speaker 05:
But I think that's a separate question from the question of whether they have sufficiently alleged injury or established injury from these different permits, even if the merits issues are the same.

[00:44:42] Speaker 05:
nonetheless need to identify an injury that's concrete and particularized and traceable to each of these.

[00:44:48] Speaker 02:
And do you disagree with Mr. Tisdale acknowledged today that one way to do that would be if they could establish that a well, the activities at a well would affect air quality, let's say within

[00:45:05] Speaker 02:
You know 20 mile radius that as long as they had allegations that they were living or working or recreating or using you know the air within that 20 mile radius that they would have shown.

[00:45:18] Speaker 05:
Standing with respect to that well, yes, I think allegations of local pollution from a particular well.

[00:45:26] Speaker 05:
or other types of effects from oil and gas development can support standing if they're presented in a cognizable way.

[00:45:32] Speaker 05:
But we simply have no way of telling in this case whether for any particular APD that they're challenging, whether they've made that allegation because they haven't tied any of their standing submissions to any particular permits.

[00:45:45] Speaker 05:
And I don't think we're asking for them to do anything to owners, like we've said, and as Mr. Tesdel quoted from our brief,

[00:45:51] Speaker 05:
We agree that common proof can apply to multiple permits.

[00:45:55] Speaker 05:
You can rely on a geographic nexus.

[00:45:57] Speaker 05:
I think when you look at their own submissions in the clauser declaration where they put together these maps.

[00:46:02] Speaker 05:
they themselves have drawn narrower groups.

[00:46:04] Speaker 05:
They think it's something like 600 of the, what they call unique sections where they've put these APTs together.

[00:46:13] Speaker 05:
You know, if they could allege that that unique section, as they call it, has effects on a local area that one of their declarants experiences, that is the type of thing that can support a claim.

[00:46:25] Speaker 02:
But what- Putting aside the APTs, if the action were a challenge to the EIS,

[00:46:33] Speaker 02:
Wood and the EIS is evaluating the effects of all of the drill permits within the, I think it's within the county in one EIS.

[00:46:46] Speaker 02:
And if the plaintiff were harmed within that EIS, presumably that plaintiff would have standing under Legion case law to challenge that EIS.

[00:46:58] Speaker 05:
Yes, so an EIS that covers a broader region, as long as you have an injury that's traceable to that EIS within the region, I don't think there's a difficulty in challenging an EIS.

[00:47:07] Speaker 05:
There might be other standing problems at the EIS stage, because it is the first of three stages.

[00:47:12] Speaker 05:
The leasing stage, that would be a sort of narrower scope that might be the type of thing where they can say, this lease sale affects this particular community where our declarant lives.

[00:47:26] Speaker 05:
But that's simply not the case that we have

[00:47:28] Speaker 05:
before us because they have chosen this sort of all or nothing approach where they want to be able to challenge all of them and have declined the opportunity to tie any of their allegations to particular purposes.

[00:47:39] Speaker 04:
Can I clarify something?

[00:47:41] Speaker 04:
So in their brief, opening brief, there are two maps.

[00:47:46] Speaker 04:
One says, is labeled, these are all the maps showing all of the New Mexico,

[00:47:57] Speaker 04:
applications for permits to drill.

[00:48:00] Speaker 04:
And then a few pages later, they have a map that says Wyoming applications for permits to drill.

[00:48:11] Speaker 04:
Is it correct that within those two maps, depict the location of all 4,019 APDs that are at issue in this lawsuit?

[00:48:24] Speaker 05:
So this is a map that they prepared.

[00:48:26] Speaker 05:
So we've taken it as true because we're at the pleading stage.

[00:48:31] Speaker 04:
So if we take that as true, then on these two pages, we can see where all of the wells are essentially, right?

[00:48:45] Speaker 04:
And if the declarations describe in relation to these maps,

[00:48:54] Speaker 04:
where people live, recreate, drive, hike, whatever it is.

[00:49:01] Speaker 04:
And they have at least one plaintiff who does any of those things within, I think the Denae citizens case used the 20 mile radius.

[00:49:18] Speaker 04:
So if they have,

[00:49:23] Speaker 04:
at least one plaintiff that does any of those things within 20 miles of everything that's on one or both of those maps, then why haven't they established steam?

[00:49:38] Speaker 05:
So I think the issue is that we don't know whether they do have those types of plaintiffs or declarants because of the way they've structured their declarations and their submissions.

[00:49:47] Speaker 05:
So, for example, they talk about, you know, using Carlsbad or visiting Carlsbad Caverns, hiking on a particular trail.

[00:49:54] Speaker 05:
If, you know, you have a declarant hiking on a trail and alleging an aesthetic injury from the viewshed, you know, I'm hiking the trail.

[00:50:01] Speaker 05:
I see oil and gas development that that's, you know, an aesthetic harm.

[00:50:06] Speaker 05:
I think that could support standing to challenge those drilling permits, but they haven't told us which ones support what challenges.

[00:50:14] Speaker 05:
And they have insisted instead that they have the ability to rely on, you know, challenges that might support some APDs to challenge all of the APDs.

[00:50:22] Speaker 05:
And it's their burden to make that connection.

[00:50:24] Speaker 05:
And so that's why we think it was appropriate for the district court to sort of decline to do their work for them and dismiss the entire action.

[00:50:31] Speaker 04:
So just so I'm clear, at the motion to dismiss stage, you believe that our precedent and the Supreme Court's precedent, Lujan, et cetera, requires declarations as opposed to just allegations, or how does that?

[00:50:54] Speaker 05:
I think allegations are sufficient at a rule 12 stage.

[00:50:57] Speaker 05:
But if you look at the allegations in the pleading itself, they're nowhere near as detailed as the declarations, which is why I think the briefing is centered on the information in the declarations.

[00:51:07] Speaker 04:
And so you think that the district court was not permitted to, and we are not permitted to, rely on the declarations because to do so would convert it into a summary judgment motion.

[00:51:23] Speaker 04:
Oh, I apologize.

[00:51:24] Speaker 04:
Ask us to do that, or I'm just trying to understand.

[00:51:27] Speaker 04:
I apologize.

[00:51:29] Speaker 04:
How we're operating here.

[00:51:31] Speaker 05:
I apologize, Your Honor.

[00:51:32] Speaker 05:
I think it's permissible at the Rule 12 stage to look at the standing declarations to support standing.

[00:51:38] Speaker 05:
They've offered them to supplement the pleading to establish their standing at this stage.

[00:51:42] Speaker 05:
So I think it's perfectly fine to rely on the standing declarations.

[00:51:45] Speaker 05:
We just don't think they're sufficiently detailed in connecting the injuries to any particular

[00:51:50] Speaker 05:
permit approval.

[00:51:52] Speaker 05:
They say, you know, we have injuries of this kind, this kind, this kind.

[00:51:56] Speaker 05:
They might line up to APD 1, 2, or 3, but we just don't know which one.

[00:52:00] Speaker 05:
And so I think that's important because if they were to file independent lawsuits challenging APD 1, APD 2, and APD 3, if they don't have standing to bring that lawsuit challenging APD 2, they can't bring it in a lawsuit combined with APD 1 because they have to have standing for each of those APDs.

[00:52:18] Speaker 05:
And there's no way for us to look

[00:52:20] Speaker 05:
on the record that they've submitted to see whether they have that kind of standing to bring each of these challenges that they're seeking to bring.

[00:52:27] Speaker 05:
And again, we don't dispute that this is the type of evidence that can support a challenge, but they've chosen to pursue this sort of all or nothing approach where they want to be able to challenge all of them or have declined the opportunity to present more particularized assertions.

[00:52:42] Speaker 03:
If you could clarify, does the government dispute

[00:52:47] Speaker 03:
the conservation group's theory of standing, as well as, I mean, there's some of the comments that you've made at oral arguments suggest that you think their theory may work.

[00:52:56] Speaker 03:
They just have failed to demonstrate standing under that theory.

[00:53:00] Speaker 03:
And there are other times I'm hearing you to say that the government's theory is inconsistent.

[00:53:06] Speaker 03:
I mean, the conservation group's theory is inconsistent with our standing precedent.

[00:53:12] Speaker 03:
So if you could just clarify the government's position for me.

[00:53:15] Speaker 05:
Yes, so I think the theory of standing that relies on aggregating harms is inconsistent with the court's standing.

[00:53:22] Speaker 05:
What is permissible is to use a geographic nexus to tie multiple APDs to particular allegations of harm and say, you know, this group of APDs in the same area has harmed us in a concrete and particularized way.

[00:53:36] Speaker 03:
How is that different from an aggregate theory if it's a group?

[00:53:39] Speaker 03:
Because you also said if there were three APDs and one of them there was no standing for, you couldn't get standing by grouping the three together.

[00:53:47] Speaker 03:
So how is that consistent with the geographic nexus understandings of standing?

[00:53:53] Speaker 05:
Because I don't think they've demonstrated geographic nexus to all of these APDs in a sufficient way for us to be able to identify whether

[00:54:02] Speaker 03:
So a geographic nexus would still require standing as to each individual APD within the geographical area.

[00:54:09] Speaker 05:
Correct.

[00:54:10] Speaker 02:
And the idea is just- A way to show it with respect to each.

[00:54:13] Speaker 05:
Correct.

[00:54:14] Speaker 05:
You could use common proof to show that you have several APDs cluster together.

[00:54:19] Speaker 05:
They collectively create an aesthetic harm because they're in the viewshed that they use when they're hiking a recreational trail, something like that.

[00:54:27] Speaker 05:
But the problem that we're identifying is aggregating different harms that wouldn't apply to each APD.

[00:54:33] Speaker 05:
So if you have an allegation of harm or attestation of harm in the declaration,

[00:54:38] Speaker 05:
that would support one APD, it clearly can't support all 4,000.

[00:54:42] Speaker 05:
So the issue is this aggregate theory obscures the issue of the question whether they have actual standing to pursue all 4,000 by just asserting that collectively they do.

[00:54:54] Speaker 05:
And we think that is what is inconsistent with the court's precedent.

[00:54:57] Speaker 02:
How does cumulative injury in your view fit into the picture?

[00:55:05] Speaker 02:
Because as I understand your regulations, when assessing

[00:55:11] Speaker 02:
in an EIS, for example, assessing harm, the agency takes existing activity as the starting point and considers the addition, the incremental addition from proposed activity.

[00:55:27] Speaker 02:
And I guess if there's simultaneously a lot of different proposed actions that the agency should consider those too.

[00:55:37] Speaker 05:
So the agency would, you know, can consider cumulative impacts as part of the NEPA process.

[00:55:43] Speaker 02:
Is obligated to?

[00:55:44] Speaker 05:
It depends on the circumstance, right?

[00:55:46] Speaker 05:
And so that's part of the claim here.

[00:55:47] Speaker 05:
So I don't want to get ahead of the merits in this case.

[00:55:49] Speaker 05:
But I think the fact that the merits question may look at the cumulative impacts is it's fundamentally just separate from the standing question.

[00:55:58] Speaker 05:
You can have standing to challenge an APD and look at the cumulative impacts and not have standing to challenge a different APD that might, you know, have similar cumulative impacts issues because you're not affected by the local pollution or whatever it is that supports standing to challenge the second APD.

[00:56:19] Speaker 02:
I'm just not entirely sure.

[00:56:22] Speaker 02:
Maybe it comes into redress if you say, I'm harmed by the APD down my block.

[00:56:36] Speaker 02:
Permanent has been granted on a well down my block.

[00:56:39] Speaker 02:
And I'm clearly within sufficient geographic proximity on all kinds of axes.

[00:56:46] Speaker 02:
But the reason why that is harmful to me is because two blocks further away, or a quarter of a mile further away, or 20 miles further away, there are a lot of other

[00:57:04] Speaker 02:
wells, just for simplicity's sake, let's say, that are already in place.

[00:57:08] Speaker 02:
And it's really because that proximate well is going to tip over some tipping point that it harms me.

[00:57:20] Speaker 02:
Maybe that's a merits argument about cumulativeness, but it seems to me that it would be fair, in fact, appropriate, maybe even necessary, to consider that at the standing state.

[00:57:31] Speaker 05:
I think that's at least sufficiently particularized to the individual APD.

[00:57:36] Speaker 02:
OK, now let's say those 20 wells that are a little bit further away are not yet built, but being built simultaneous with the one close to me.

[00:57:45] Speaker 02:
And if the one close to me were taken in isolation, maybe it wouldn't harm me.

[00:57:50] Speaker 02:
But when it's backed up with all those others, it tips it over the brink.

[00:57:57] Speaker 02:
It seems to me that that might also require

[00:58:01] Speaker 02:
the consideration of not just the one right near me, but at least for purposes of relief or dress, how those others are interacting with it.

[00:58:13] Speaker 05:
Yeah, I think there could be a couple issues with that.

[00:58:15] Speaker 05:
There might be a traceability question.

[00:58:17] Speaker 05:
where the injury is actually caused by this third party independent actor.

[00:58:21] Speaker 05:
And there could also be a redress issue because if you were to vacate the APD, it wouldn't actually do anything to address the underlying injury.

[00:58:28] Speaker 05:
So I think that could be an appropriate consideration where we have a direct injury that they're alleging is caused by a particular permit.

[00:58:38] Speaker 05:
And we're just not at that stage in this case because of the sort of aggregate way that they've brought the case.

[00:58:45] Speaker 05:
I'm also way over my time.

[00:58:48] Speaker 05:
I'd be happy to answer any further questions.

[00:58:53] Speaker 02:
Thank you.

[00:58:54] Speaker 02:
We'll hear now from your friend, Mr. Morata.

[00:59:12] Speaker 06:
Thank you, Your Honor, and may it please the court, Sean Morata.

[00:59:15] Speaker 06:
I represent Chevron USA, Inc., and I'm speaking on behalf of all of the interveners, including the state of Wyoming.

[00:59:21] Speaker 06:
I want to make three points at the podium today.

[00:59:23] Speaker 06:
The first is that, as we've been discussing, standing is not dispensed in gross, and therefore there must be a showing of injury, causation, and redressability as to each of the final agency actions that are at issue here, all 4,000 of them.

[00:59:38] Speaker 06:
That matters constitutionally, because this court is not in the business of adjudicating programic challenges to the way the government does business, only concrete disputes between adverse parties.

[00:59:49] Speaker 06:
And that's a principle that ranges from Murthy to back to the 90s in other cases, and even back to the 70s that say generalized disputes with governmental policies are not cognizable in the Article III courts.

[01:00:03] Speaker 06:
And it matters practically to interveners.

[01:00:05] Speaker 06:
Because these 4,000 APDs are not all owned by the same company.

[01:00:09] Speaker 06:
There are a big joint defense group that sits behind me that if it's not their APD that's causing the harm, then they very much would like to be out of this case, even if perhaps other people's APDs are causing the harm.

[01:00:22] Speaker 06:
That's why there's necessity to show that there's a relationship between the harm that is alleged and the particularized APD

[01:00:30] Speaker 06:
Because if it's not our APDs, we want out of this case.

[01:00:33] Speaker 06:
And in fact, below in the district court, there were individualized defendants who said, look, whatever they've pleaded with respect to other people's ABDs, they haven't shown injury from ours.

[01:00:44] Speaker 06:
And the response was, well, but it's all 4,000 of them together, so everybody gets held in.

[01:00:49] Speaker 04:
So there is a- You had a joiner problem as opposed to a standing issue?

[01:00:53] Speaker 06:
I don't think it's a joinder problem, because rule 20 is, is there a common question of law or fact?

[01:00:58] Speaker 06:
And the allegation is there's a common question of law with respect to the underlying merits.

[01:01:02] Speaker 06:
But it is a standing problem, because if I am not the one that's causing this injury and you don't have standing to challenge my APD, that claim should be out of the case.

[01:01:14] Speaker 06:
So the problem is not it should be filed in a separate lawsuit, which would be a joinder problem.

[01:01:18] Speaker 06:
The problem is that the suit shouldn't be brought at all.

[01:01:21] Speaker 03:
Mr Morata, can you speak to the government's geographical nexus understanding of standing?

[01:01:28] Speaker 03:
So it seems that the government and the interveners agree, you know, sort of as to the aggregate theory.

[01:01:35] Speaker 03:
But do you believe that the conservation groups could get standing under a kind of, you know, geographical nexus understanding where there was a group of APDs together?

[01:01:45] Speaker 06:
I think if you understand geographical nexus in the right way, Judge Rao, which is I think the second point I want to make, which was it gets to Judge Pillard's question about when you define the geographic nexus or the affected area, which is sort of the term that's been kicked around in this case, it has to be by reference to some impact or harm that's objective.

[01:02:04] Speaker 06:
So if you're claiming harm from particulate matter, well, you have to know how far does the particulate matter go out.

[01:02:10] Speaker 06:
If you're claiming it from the view shed, well, you have to know something about the topography and about the sight lines.

[01:02:15] Speaker 06:
If you're doing it based on the seismic activity, you have to know something about how far do the shock waves go.

[01:02:20] Speaker 06:
So although I'm not typically in the business of telling my opponents how to plead their case, if they had a map and they said each of these wells emits particulate matter for five miles in a circular radius, and I, Ms.

[01:02:33] Speaker 06:
Shoup, am located at the center of all of those overlapping five mile radii that you put on the map.

[01:02:40] Speaker 06:
And she can then show that those overlapping, that particulate matter is increasing her risk of harm for health or other interests, then that would be standing.

[01:02:50] Speaker 06:
And I think that's what the courts mean when they say geographic nexus.

[01:02:53] Speaker 06:
You're within the area of the effect of the harm that you're claiming.

[01:02:57] Speaker 03:
That that harm is still tied to each individual.

[01:03:00] Speaker 03:
It is each individual well.

[01:03:02] Speaker 06:
And so that's how we understand geographic nexus.

[01:03:05] Speaker 06:
Now, I do agree with the government that, of course, there's often common proof.

[01:03:08] Speaker 06:
If you have two APDs that are on a well pad directly next to each other, then yes, of course, your standing is going to look pretty much exactly the same for each of them.

[01:03:18] Speaker 06:
But it is individualized.

[01:03:20] Speaker 06:
Their burden does not get any easier because they filed four thousand

[01:03:24] Speaker 06:
essentially separate lawsuits in one complaint, as if they had filed 4,000 separate lawsuits and 4,000 complaints.

[01:03:31] Speaker 06:
It's the same burden as to each APD in our view.

[01:03:36] Speaker 06:
And in this case, there is no allegation as to how far the radii are.

[01:03:40] Speaker 06:
There is no allegation as to how far the particulate matter goes, how far the seismic shock waves go, how far the sight lines are cut off.

[01:03:48] Speaker 06:
There's no allegations in these declarations.

[01:03:52] Speaker 02:
In terms of the DNA care case, I understand that you don't agree with it.

[01:03:58] Speaker 02:
I don't think the district court, as I read it and as I read the papers in this case, I don't think the district court was correct that it's distinguishable because it challenges single agency action and this challenges many.

[01:04:12] Speaker 02:
I think the structure of the environmental impact statement and as it relates to the environmental assessments that accompany the individual

[01:04:21] Speaker 02:
permits to drill, the facts are the same.

[01:04:26] Speaker 02:
I take that.

[01:04:27] Speaker 02:
So given that, there's also an argument that our circuit precedent

[01:04:33] Speaker 06:
uh forecloses the approach that the 10th circuit took do you think that's right and can you explain that sure let me let me go a couple different directions with that judge pillard one thing we've been talking about today is the eis and whether you can challenge the eis and i will draw this back to dna citizens i promise um is that you can't challenge an eis in the vacuum because an eis is not a final agency action under the administrative procedure act it's that eis is support

[01:05:01] Speaker 06:
final agency actions, be it an APD or something else.

[01:05:05] Speaker 06:
But I think, Judge Pillard, to the question of how do you challenge on a more region-wide basis, the way you do this in oil and gas leasing in the Permian Basin in Wyoming is you challenge the lease sale, because the lease sale is in a more regionalized basis.

[01:05:21] Speaker 06:
And in fact, plaintiffs can and often do challenge the lease sale.

[01:05:24] Speaker 06:
Why they've decided to challenge the APDs as opposed to the lease sales

[01:05:28] Speaker 06:
some of which I think there are even some lease sales that are under challenge supporting these APDs, I can't speak to you, but there are ways to challenge things on a more regionalized basis, just not the individualized APDs.

[01:05:41] Speaker 02:
Bringing it back to Dene, I do think- Why isn't it allowed, the lease sale, the lease might not be developed at all.

[01:05:50] Speaker 02:
So arguably premature,

[01:05:53] Speaker 02:
There are leases.

[01:05:54] Speaker 02:
I mean, I think there are leases that remain dormant for decades.

[01:05:59] Speaker 06:
So there are time limits on how quickly you have to produce your lease.

[01:06:04] Speaker 06:
But it is true to say that not every lease that is purchased is developed.

[01:06:08] Speaker 06:
Absolutely, Judge Piller.

[01:06:09] Speaker 06:
But what we often see in the case law, and there has been found to be standing, is if you allege an inadequate EIS at the lease sale stage because it doesn't take into account sufficiently

[01:06:21] Speaker 06:
cumulative impacts from the anticipated development, those cases go forward.

[01:06:26] Speaker 06:
It's just that because they've challenged further down at the funnel at the APD stage, that they are trying to wedge, I think, a regionalized challenge or a programmatic challenge into challenges to various APDs.

[01:06:40] Speaker 06:
To jump back to Dene, I do agree that I think the 10th Circuit in Dene was a little

[01:06:45] Speaker 06:
imprecise because it did seem to be thinking about challenging an EIS, which in our view is not something that is done, quite frankly.

[01:06:54] Speaker 06:
And so that's part of why we disagree with DNA.

[01:06:58] Speaker 02:
I think DNA is also- There are challenges to EIS in connection with final agency action as to, and there they did, as in this case, have final agency action.

[01:07:09] Speaker 02:
So it's challenging and in connection with an action as to which it is deemed inadequate.

[01:07:15] Speaker 06:
And to the extent the 10th Circuit thought that because there is this unified EIS that supports 300 APDs of which there would not be standing with respect to each one, we think the 10th Circuit is just incorrect on that.

[01:07:29] Speaker 06:
I do think DNA is reconcilable on the fact that the 300 APDs there I think are more geographically clustered.

[01:07:36] Speaker 06:
than the APDs here, where you have APDs, some of which are clustered, but some of which are, you know, far northwest, way up the highway, even in different regional offices.

[01:07:46] Speaker 06:
And I think, and to answer your question about how it is different in respect to this circuit's precedent, Judge Pillard, it's that the 10th Circuit in the Lucero case that it was relying on in DNA

[01:08:01] Speaker 06:
disagreed with this court's decision on bank in Florida Autobahn where this court made clear that with procedural injuries, you still have to show the tight connection between a substantive injury and the thing you're complaining about.

[01:08:13] Speaker 06:
Whereas the 10th Circuit appears to have case law that says that it's a looser standard under NEPA because it's information forcing.

[01:08:21] Speaker 06:
I'll also note that in the Rocky Mountain case that the district court cited, the 10th Circuit seems to have narrowed its understanding of Dene because when it was describing Dene, it described the plaintiffs in that case recreating and traveling near each of the 300 APDs.

[01:08:38] Speaker 06:
So I think in that respect, perhaps the 10th Circuit has drawn back from some of the broader readings of Dene than the plaintiffs advance.

[01:08:47] Speaker 06:
For all of those reasons, I think Dene doesn't control and obviously it doesn't control.

[01:08:52] Speaker 06:
I think it's both reconcilable.

[01:08:54] Speaker 06:
But ultimately, if it's not reconcilable, we just think it's incorrect.

[01:09:01] Speaker 06:
So I think the key problem here, Judge Pillard, is we are not suggesting that if you had different declarants or maybe the same declarants and different allegations, they could not use

[01:09:13] Speaker 06:
Some APDs might be subject to challenge.

[01:09:17] Speaker 06:
But as my friend from the government said in his brief, they've litigated this case on an all or nothing basis.

[01:09:22] Speaker 06:
They have said it's essentially all 4,000 or it's nothing.

[01:09:25] Speaker 06:
They didn't say, well, it's all 4,000.

[01:09:28] Speaker 06:
But if it's not all 4,000, it's at least these 10.

[01:09:30] Speaker 06:
And let me tell you which 10 we're thinking about.

[01:09:32] Speaker 06:
They just told the district court it's all of them.

[01:09:36] Speaker 02:
What about a case in which there's an EIS

[01:09:42] Speaker 02:
And as individual applications for permits to drill are reviewed, the Bureau looks at the EIS and says, oh, the EIS evaluated one well to emit this and this and this and add to seismic risk this and this and this.

[01:10:05] Speaker 02:
And so we're going to just say, here's a permit that involves two wells.

[01:10:11] Speaker 02:
I'm going to multiply those figures by two, environmental assessment.

[01:10:15] Speaker 02:
Next one, seven wells.

[01:10:17] Speaker 02:
I'm going to multiply those figures by seven, environmental assessment.

[01:10:22] Speaker 02:
In that, and you're challenging all the wells that are under the

[01:10:30] Speaker 02:
the lease sale and that are now permitted.

[01:10:36] Speaker 02:
Why isn't the standing to challenge that group of permits supported by the same token that one would have standing to challenge the underlying EIS?

[01:10:49] Speaker 02:
It's the same environmental information.

[01:10:53] Speaker 06:
It's the same environmental information, but in procedural cases, and this is, I think, the insight of Florida Audubon is that

[01:11:00] Speaker 06:
You're not alleging harm from the fact that the EIS is prepared wrong.

[01:11:04] Speaker 06:
What you're alleging harm from is that there is an APD in my backyard that is admitting or blocking my sightline or whatever they are claiming.

[01:11:13] Speaker 06:
So there has to be that linkage between the actual concrete effects that create the Article III injury, in fact, back to the informational injury that's alleged by NEPA insufficiencies.

[01:11:25] Speaker 06:
The EIS is not causing anybody harm.

[01:11:27] Speaker 06:
It's just a piece of paper.

[01:11:28] Speaker 06:
Oh, yes, it is.

[01:11:30] Speaker 02:
Because its information, which is inadequate, is being used as a ticket to approve an APD.

[01:11:40] Speaker 02:
That is different from the mechanism where the EIS is being used as the ticket to allow the leasing plan.

[01:11:50] Speaker 06:
That's right.

[01:11:50] Speaker 02:
But it's the county wide or maybe shale wide.

[01:11:52] Speaker 02:
I don't know.

[01:11:54] Speaker 06:
Right.

[01:11:54] Speaker 06:
But in that case, the concrete harm is

[01:11:57] Speaker 06:
is coming from the lease sale, which will then inevitably lead to development.

[01:12:05] Speaker 06:
And the Supreme Court is held actually at the RMP stage.

[01:12:07] Speaker 06:
It's not maybe a standing problem, but it's a rightness problem.

[01:12:11] Speaker 06:
So that part of the funnel, as you suggest, it may not be ripe because there is not sufficient indication that there's going to be any development at the lease sale.

[01:12:21] Speaker 06:
I unfortunately do not have it at the tip of my tongue, because it's not in the briefs.

[01:12:24] Speaker 06:
But that is what the Supreme Court has said with respect to the RMP.

[01:12:29] Speaker 02:
Right.

[01:12:30] Speaker 02:
Leasing, you think there's precedent that says the leasing stage is ripe.

[01:12:32] Speaker 06:
There is precedent that lease sale cases can and do go forward, because we're further down the funnel, even though understanding that it is not a guarantee there will necessarily be wells developed on each of the leases that are sold.

[01:12:50] Speaker 02:
Thank you, your honor.

[01:12:51] Speaker 02:
Thank you very much.

[01:12:58] Speaker 02:
Mr. Tisdale have time?

[01:12:59] Speaker 02:
All right, you used all your time and then some, but we'll give you rebuttal.

[01:13:07] Speaker 07:
Yeah, I will try to be brief, because you've been more than generous with us today in the amount of time you've given.

[01:13:12] Speaker 07:
I just want to sort of note, I don't know if my colleagues have ever visited these basins.

[01:13:20] Speaker 07:
I was down in the Permian several weeks ago, and you literally cannot stand anywhere within these basins and look in 360 degrees, and you see nothing but a sea of oil and gas wells.

[01:13:33] Speaker 07:
and processing facilities and pipelines and roads and trucks.

[01:13:37] Speaker 07:
And this speaks to the harm that is endured by the people who live within these basins.

[01:13:46] Speaker 07:
They cannot go about their daily life without being affected by the haze.

[01:13:51] Speaker 07:
And again, this is a region that is in non-attainment for ozone.

[01:13:56] Speaker 07:
The air pollutant emissions are impacting their health.

[01:13:58] Speaker 07:
They're driving down roads that are overrun by oil and gas trucks.

[01:14:02] Speaker 07:
The federal government has acknowledged that these are the types of injuries that support standing.

[01:14:08] Speaker 02:
Is there any reason why you didn't sue to challenge the approval of the lease sale?

[01:14:14] Speaker 07:
There are challenges pending in the District of New Mexico, challenge some of these leases, but your question earlier

[01:14:22] Speaker 07:
of hit the point that many of the leases can sit speculatively and undeveloped for decades even.

[01:14:30] Speaker 07:
And so some might be past the statute of limitations, but the fact of the matter is that there are additional final agency actions approving each of these wells.

[01:14:40] Speaker 07:
And I think that the tension here in this case is

[01:14:43] Speaker 07:
And there isn't a meaningful distinction between the case that we have here and Denae citizens and the 10th Circuit, their evaluation of the maps used in that case of the declarations using that case again at the merits stage.

[01:14:59] Speaker 07:
I would say that the maps and the declarations here actually offer greater specificity than were presented to the 10th Circuit in that case.

[01:15:09] Speaker 02:
The distinction here just a point of information that there aren't four thousand dots on the maps.

[01:15:14] Speaker 02:
And I take it that that's sort of akin to like a pixelation problem that some of the some of the dots represent multiple multiple wells or even multiple APDs.

[01:15:25] Speaker 02:
That's some of the APDs themselves include multiple wells.

[01:15:28] Speaker 07:
But that's correct.

[01:15:30] Speaker 07:
So sometimes a company or an operator will submit an APD for a single well.

[01:15:34] Speaker 07:
Sometimes they will submit an APD for

[01:15:37] Speaker 07:
groupings of wells.

[01:15:39] Speaker 02:
So are those all the groups, or is there also kind of a pixelation issue where there might actually be in one of those tiny little squares more than one permit to drill?

[01:15:48] Speaker 02:
Do you know the answer to that?

[01:15:50] Speaker 07:
I don't, and I can check with our GIS specialist.

[01:15:53] Speaker 07:
I believe the answer is that what was mapped was the environmental assessments where those were located.

[01:16:03] Speaker 07:
But I would not disagree that there's probably a pixelation problem with just an overlapping of multiple wells on the map.

[01:16:10] Speaker 07:
What I would note is the 377 applications for permits to drill at issue in Danae Care, those permits were approved over the course of several years here.

[01:16:25] Speaker 07:
The real conflict is in the number and I think the magnitude of APDs at issue in this case.

[01:16:31] Speaker 07:
That speaks to just the pace at which these APDs are being approved in these basins rather than a deficiency or some meaningful distinction between the sort of geography or the harms being alleged by declarants for purposes of standing.

[01:16:48] Speaker 02:
You said it's a contrast.

[01:16:49] Speaker 02:
You said that was over several years.

[01:16:50] Speaker 02:
And here it's in strong contrast.

[01:16:52] Speaker 02:
And what's the contrast?

[01:16:53] Speaker 07:
Well, these 4,000 APDs were approved over a 20-month period.

[01:16:58] Speaker 07:
So the fact that we're challenging so many of these speaks not to us being creative in the construction of the case, but just the absolute gangbuster pace that the agency is going through to approve these wells.

[01:17:16] Speaker 07:
You know, yes, we could bring these cases individually on individual wells, but that would both overwhelm the court, but it would also prevent plaintiffs from ever bringing a case that really addressed the magnitude of cumulative impacts being endured by people who live, work, and recreate within these areas.

[01:17:38] Speaker 07:
So thank you so much.

[01:17:40] Speaker 02:
Thank you.