[00:00:00] Speaker 01: Case number 23-1067, Marine Audubon Society et al. [00:00:05] Speaker 01: Petitioners versus Federal Aviation Administration, U.S. [00:00:08] Speaker 01: Department of Transportation and National Park Service, U.S. [00:00:11] Speaker 01: Department of the Interior. [00:00:13] Speaker 01: Mr. Jenkins for the petitioners, Mr. Heminger for the respondents. [00:00:20] Speaker 01: Morning, Council. [00:00:22] Speaker 01: Morning. [00:00:23] Speaker 01: Jenkins, please proceed when you're ready. [00:00:33] Speaker 04: Okay, may please the court. [00:00:46] Speaker 04: I'm Peter Jenkins, co-counsel with Paula Dinerstein at council table. [00:00:50] Speaker 04: We're with public employees for environmental responsibility or peer. [00:00:54] Speaker 04: This is a related case to the writ of mandamus action that peer brought in 2019 before this court [00:01:01] Speaker 04: which resulted in the 2020 decision to compel the Federal Aviation Administration or FAA and the National Park Service to complete comprehensive air tour management plans for over flights of helicopters and airplanes over national parks. [00:01:18] Speaker 04: And that was across the nation, that nationwide decision. [00:01:22] Speaker 04: These agencies had unreasonably failed to do that for nearly 20 years that cases in rape here and Hawaii coalition. [00:01:31] Speaker 04: Malama Pono, and it was case number 19-1044. [00:01:36] Speaker 04: This action today is about our challenge to just one of those air tour plans, which was the San Francisco Bay Area plan, but it is important to recognize that this court is still maintaining jurisdiction of the national case, which includes this plan as well. [00:01:55] Speaker 04: And the court is maintaining jurisdiction to ensure completion of all the 20 or so air tour plans across the country. [00:02:03] Speaker 04: I should note that Judge Henderson was part of that national case decision, along with judges Tatel and Griffith. [00:02:11] Speaker 04: The problem with the San Francisco Air Tour Management Plan is that it failed to comply with the Overriding National Parks Air Tours Management Act of 2000, as well as with the National Environmental Policy Act, NEPA. [00:02:24] Speaker 04: Rather than preparing a full environmental impact statement, EIS, or an environmental assessment, EA, for the San Francisco plan before their decision to approve the plan, the agencies just invoked a categorical exclusion, excluding it from full NEPA assessment. [00:02:41] Speaker 04: Yet the very objective of the Air Tours Management Act was to ensure that the environmental impacts of the overflight plans that were being developed were fully assessed and mitigated or prevented. [00:02:54] Speaker 04: Section 40128B1B states that objective in the act. [00:02:59] Speaker 04: excluding these new plans, such as the San Francisco plan, from full assessment was directly opposite of that objective of the Air Tour Management Act. [00:03:09] Speaker 04: And the effect of their categorical exclusion was basically to grandfather in the prior existing levels of flights that had occurred before 2000, analyzing them as a baseline, as a fait accompli. [00:03:22] Speaker 04: Again, that was the opposite of what Congress intended in the Air Tours Management Act. [00:03:28] Speaker 00: The grandfathering part of it, even if you're right, that the grandfathering makes the application of the categorical exclusion arbitrary and capricious here, and you have that argument. [00:03:42] Speaker 00: That doesn't necessarily mean that the statute is best read to have just an exhaustive list of the possibilities of environmental decision documents. [00:03:54] Speaker 00: In other words, you might still, you could potentially still prevail on the ground that grandfathering was not what was intended. [00:04:00] Speaker 00: And therefore the application of the categorical exclusion is wrong. [00:04:04] Speaker 00: Even if you don't prevail on your threshold submission, that the statute should be read to not allow a document ratifying a categorical exclusion as a quote, environmental decision document required by section 102 of NEPA. [00:04:19] Speaker 04: Agreed, agreed, your honor. [00:04:20] Speaker 04: And I think we prevail on both issues, [00:04:25] Speaker 04: I think it's worth analyzing that first issue about the statutory interpretation if I can. [00:04:31] Speaker 00: Right. [00:04:32] Speaker 00: And so on that one, if there's a document that embodies the agency's conclusion, the categorical exclusion is applicable in a particular context. [00:04:46] Speaker 00: then that would be an environmental decision document required by section 102 of NEPA. [00:04:53] Speaker 00: Just put aside whatever else is in the statute for now. [00:04:55] Speaker 00: Of course, a lot of you are going to rest on whatever else is in the statute, but I'm just saying as a matter of just ordinary English, a document signed by both agencies that reaches the conclusion that a categorical exclusion is applicable here, that would be a document that would satisfy 102 of NEPA. [00:05:14] Speaker 04: Not in this instance, not the way that section's written, because they then went on to list the particular kinds of the specific documents that cabin the agency's discretion. [00:05:26] Speaker 00: I'm trying not to look at the specific documents. [00:05:29] Speaker 00: And of course, I know that that's a big part of your submission. [00:05:32] Speaker 00: And I want to get there too. [00:05:34] Speaker 00: I'm just saying as a matter of ordinary English, suppose the statute didn't have any list of documents, it only said, [00:05:41] Speaker 00: The director, each of the directors, because obviously everybody agrees, I think that at least one part of the impetus behind this provision was to make sure that both agencies signed the document. [00:05:53] Speaker 00: That may not have been the only thing that wanted to be accomplished, but it was just part of it. [00:05:57] Speaker 00: I think everybody agrees on that. [00:05:58] Speaker 00: So if the statute just said that each director shall sign the environmental decision document required by section 102 of NEPA and then didn't say anything else, [00:06:07] Speaker 00: then a categorical exclusion could be brought within this. [00:06:12] Speaker 00: The categorical exclusion itself is not a document. [00:06:14] Speaker 04: Well, I would kind of agree with you, but they did write that later list. [00:06:19] Speaker 04: And you, as interpreting the statute, have to make sure that you don't interpret that later list to be superfluous, which the agency's reading makes that list completely superfluous. [00:06:29] Speaker 04: because the agencies had to comply with NEPA anyway. [00:06:33] Speaker 04: So why would the drafters of that section, why would they add that language except to cab in the agency's discussion? [00:06:41] Speaker 04: That's kind of our key point there, Your Honor. [00:06:45] Speaker 02: Where you and your opponents argue back and forth over this categorical exclusion, I have several questions about that. [00:06:56] Speaker 02: Juan, what section of NEPA authorizes that sort of an approach? [00:07:07] Speaker 04: Categorical exclusions, Your Honor, are authorized under the CEQ NEPA implementing regulations, which are- All right, fine. [00:07:16] Speaker 02: Where does CEQ get authority to issue regulations? [00:07:21] Speaker 04: Well, I believe that that authority was given in NEPA itself. [00:07:26] Speaker 02: No, all NEPA said is that it's an advisory body within the executive office of the president. [00:07:33] Speaker 02: There's nothing in there that authorizes rulemaking. [00:07:35] Speaker 02: So where does the authority come from? [00:07:40] Speaker 04: Well, I don't have a great answer except to point to U.S. [00:07:45] Speaker 04: v. Rogers, the case we cite, Supreme Court case we've cited in our brief, where the Supreme Court says that those NEPA implementing regulations from CEQ should be determined to be authoritative when interpreting NEPA itself. [00:07:59] Speaker 04: I wish I had a better answer as to this. [00:08:03] Speaker 02: Well, the answer is that it comes from Jimmy Carter as president issuing an executive order, but the executive order can substitute for statute or for statutory authority. [00:08:17] Speaker 02: The second part of this is [00:08:21] Speaker 02: The act itself, the Plan Act for lack of a better word, does not incorporate the CEQ section that existed dealing with categorical exclusion. [00:08:35] Speaker 02: It incorporates a number of CEQ regulations, but not the one dealing with categorical exclusion. [00:08:45] Speaker 01: Why was that? [00:08:50] Speaker 01: Wouldn't you say the National Parks Air Tour Management Act? [00:08:54] Speaker 04: Yes. [00:08:57] Speaker 04: Well, that's our argument, Your Honor, which is the National Parks Air Tour Management Act specifically did not want the agencies to invoke categorical exclusions. [00:09:07] Speaker 04: They wanted these air tour plans assessed [00:09:10] Speaker 04: in terms of their impact on the environment, on the people, starting from the baseline of zero, that is starting from scratch and not grandfathering in or assuming that those existing flights could be categorically excluded, which is the effect of what the agencies did here. [00:09:30] Speaker 02: The section the agencies relied on in the CEQ regulations was not a section that the Plan Act incorporated by reference. [00:09:47] Speaker 02: It was excluded. [00:09:49] Speaker 02: My question to you is, do you know why? [00:09:52] Speaker 04: I don't have a good argument for that. [00:09:58] Speaker 04: FAA attorney may be the answer. [00:10:01] Speaker 00: Just to amplify on what Judge Randolph is asking about, there's one particular provision in the act, which is B4C. [00:10:12] Speaker 00: I think it's B4C, right? [00:10:15] Speaker 00: B4C of the relevant statute covering these air transportation management plans, which is, hold on just one second, 49 USA 40128, B4C, [00:10:27] Speaker 00: It requires compliance with the regulations set forth in sections 1501.3 and 1501.5 through 1501.8. [00:10:36] Speaker 00: And that excludes 1501.4, which is the one that actually speaks of categorical exclusions. [00:10:44] Speaker 00: Well, that's the provision I think judge Randolph thank you talking about. [00:10:47] Speaker 00: Thank you. [00:10:47] Speaker 02: And if I may, if I may interject. [00:10:51] Speaker 02: Sure, that I'm not actually my question was not aimed at that at all. [00:10:56] Speaker 00: Oh, sorry, sorry. [00:10:57] Speaker 02: Because the stat that the CEQ regulations were renumbered. [00:11:02] Speaker 02: at a time after the Plan Act was promulgated. [00:11:07] Speaker 02: But the original number of the categorical exclusion was not included in the original act either. [00:11:17] Speaker 04: So. [00:11:18] Speaker 04: Okay. [00:11:18] Speaker 04: Well, we may have missed that issue. [00:11:20] Speaker 04: I see my time is up. [00:11:22] Speaker 04: So we'll hopefully have some time for rebuttal. [00:11:26] Speaker 00: Yeah, we will give you some time for that. [00:11:28] Speaker 00: I want to make sure my colleagues don't have additional questions for you. [00:11:30] Speaker 00: We're just gonna judge right now. [00:11:32] Speaker 01: No, okay. [00:11:33] Speaker 01: Thank you. [00:11:41] Speaker 01: Mr. Heminger. [00:11:44] Speaker 03: Good morning. [00:11:44] Speaker 03: I may please the court, Justin Heminger, for the respondents. [00:11:48] Speaker 03: FAA and the Park Service complied with the National Air Tour Management Act and the National Environmental Policy Act when they issued this plan for four parks in the Bay Area. [00:12:00] Speaker 03: The plan specifies routes, altitudes, times of day, and numbers of flights that may go over three of the parks, and it says that no air tours may go over Muir Woods National Monument. [00:12:15] Speaker 03: This is a balanced plan, and it ensures that air tours will not cause any significant adverse impacts to the park's resources or to visitors to the parks. [00:12:27] Speaker 00: Can I just start you off asking this? [00:12:29] Speaker 00: So under your view of the statute, you agree that there's got to be some environmental decision document that's signed by each director. [00:12:43] Speaker 00: Yes, your honor. [00:12:44] Speaker 00: And what was that document here under your view. [00:12:47] Speaker 03: So, because the agencies apply to categorical exclusion categorical exclusion is the park services categorical exclusion. [00:12:55] Speaker 03: The agencies followed CEQ regulations and documented that in. [00:13:01] Speaker 03: by the Park Service and by FAA, and then the agencies brought that together in the Record of Decision. [00:13:08] Speaker 03: So the Record of Decision attaches all of the environmental documentation, and that's the document. [00:13:14] Speaker 00: But the way I read the statute, the Record of Decision isn't the environmental decision document. [00:13:20] Speaker 03: That is separate. [00:13:22] Speaker 03: There is a separate requirement. [00:13:23] Speaker 03: So there are two requirements, Ron, to back up. [00:13:25] Speaker 03: There are two requirements in this provision, signature provision. [00:13:28] Speaker 03: One is to sign the environmental decision document. [00:13:31] Speaker 03: One is to sign the record, and the other is to sign the record of decision. [00:13:34] Speaker 03: Right, and I'm focused on the first one. [00:13:35] Speaker 00: As to both of those, both agencies have to sign it. [00:13:38] Speaker 00: That's correct, yes. [00:13:39] Speaker 00: And what is the environmental decision document, not the record of decision, because I know from the appendix that both agencies sign the record of decision. [00:13:46] Speaker 00: But what's the environmental, under your view, the statute, what's the environmental decision document that both agencies sign? [00:13:53] Speaker 00: It's the record of decision here. [00:13:55] Speaker 00: I thought we established that the record of decision is different from the environmental decision document. [00:13:59] Speaker 00: That's my question is, the statute presupposes that there's two documents, each of which will be signed by both directors. [00:14:06] Speaker 00: Are we on the same wavelength so far? [00:14:08] Speaker 00: Yes, your honor. [00:14:08] Speaker 00: So then one of those documents is the record of decision. [00:14:11] Speaker 00: It's true. [00:14:12] Speaker 00: I don't think anybody disputes that the record of decision was signed by both agency heads. [00:14:17] Speaker 00: Correct. [00:14:17] Speaker 00: But if the statute presupposes that there's another document that's called environmental decision document that's signed by both agency heads, which document is that? [00:14:26] Speaker 03: So I would say that it's still a record of decision. [00:14:29] Speaker 03: And I think Congress didn't say you had to have two separate documents. [00:14:33] Speaker 03: Congress said that you had to have, that both agencies had to sign both documents. [00:14:37] Speaker 03: Here, the documents are the same because the record of decision includes as an appendix, all of the environmental documentation, including the park services documentation for the categorical exclusion, FAA's documentation adopting that categorical exclusion. [00:14:54] Speaker 01: So it has both. [00:14:58] Speaker 01: Okay, so it's one document. [00:15:02] Speaker 01: Correct. [00:15:02] Speaker 03: It counts as both documents. [00:15:04] Speaker 03: That's correct. [00:15:05] Speaker 03: And I think the point here is to back up, the point of this provision is that both agencies needed to agree on both the NEPA analysis and on the Air Tour Management Act plan. [00:15:17] Speaker 03: And that's a significant step. [00:15:19] Speaker 03: I think if you look at the legislative history, if you look at how Congress reached this [00:15:24] Speaker 03: Air Tour Management Act and putting in place, it's a significant step for both agencies to reach agreement. [00:15:30] Speaker 03: These are two agencies with distinct missions, distinct ways of doing environmental analysis, but here what they've done is come together and reach agreement on what the right NEPA analysis is and what the right air tour management plan is for these parks. [00:15:45] Speaker 03: And that's what you see when you look at the record of decision, which is signed by senior officials from both agencies. [00:15:51] Speaker 00: So why did the statute then bother to spell out a list of documents at all? [00:15:58] Speaker 00: Why not just stop with, shall each Sony environmental decision document required by section 102 of NEPA, period? [00:16:05] Speaker 03: So your honor, I think that is because this is not a term of art. [00:16:10] Speaker 03: So if Congress uses a term of art or a defined term, then you know what it is. [00:16:15] Speaker 03: You can look at the definition of the statute. [00:16:17] Speaker 03: That's not what we have here. [00:16:18] Speaker 03: Here we have a plain English use of environmental decision document. [00:16:22] Speaker 03: That's not defined by the Air Term Management Act. [00:16:25] Speaker 03: It's not defined by NEPA. [00:16:27] Speaker 03: In fact, it's not even defined by the CEQ regulations that Judge Randolph voted that were in place in 1978. [00:16:33] Speaker 03: So it's not defined anywhere. [00:16:36] Speaker 03: So you have to use the ordinary English meaning for those that term environmental decision document. [00:16:43] Speaker 03: So then the question is, well, what does that mean? [00:16:46] Speaker 03: And I think what Congress did here by adding a clause that offers illustrative examples is give examples of what that term could mean. [00:16:55] Speaker 03: If it was a defined term, that wouldn't be necessary. [00:16:59] Speaker 03: So I actually disagree with petitioners. [00:17:01] Speaker 03: I think it's the opposite. [00:17:02] Speaker 03: I think that the phrase is not superfluous. [00:17:05] Speaker 03: I think it's necessary, it's helpful. [00:17:07] Speaker 03: And the work that it does is to give examples of what an environmental decision document could be. [00:17:14] Speaker 03: But it's not designed to tell the agency what it cannot be or be exclusive. [00:17:21] Speaker 03: So the signature provision uses both shall and may. [00:17:27] Speaker 03: And I think that's an intentional choice by Congress. [00:17:29] Speaker 03: The shall is that each agency has to sign the documents. [00:17:33] Speaker 03: The may is, may include, and then several examples of what an environmental decision document could be. [00:17:41] Speaker 00: One more question, and then I'll let anyone else ask a question. [00:17:46] Speaker 00: I don't mean to monopolize. [00:17:47] Speaker 00: On B4C, [00:17:51] Speaker 00: It says comply with the regulations set forth in sections 1501.3 and 1501.5 through 1501.8. [00:17:59] Speaker 00: Why is 1501.4 not part of that? [00:18:03] Speaker 00: Because at the time that the statute was adopted, [00:18:06] Speaker 00: I think the version of the regulations that was in effect at that time had within 1501.4 the allowance for category exclusions. [00:18:15] Speaker 00: It had other stuff too, but it had the allowance for category exclusion. [00:18:18] Speaker 00: I just wondered, do you know why 1501.4 not included? [00:18:22] Speaker 00: It seems conspicuous that Congress says 1501.3, but then skip 1501.4 and then include 1501.5 through 1501.8. [00:18:30] Speaker 03: So to answer the factual question, yes, I think that's correct, that that's the provision of CEQ regs that is missing in the Air Term Management Act. [00:18:43] Speaker 03: Congress did skip that. [00:18:45] Speaker 03: But to answer the why question, I don't know. [00:18:47] Speaker 03: And I don't think the legislative history or the text really illuminates that. [00:18:52] Speaker 03: I guess the best that I can say is, [00:18:54] Speaker 03: that if you back up to look at that particular section, it's under procedures before, and it says in establishing an air-to-air management plan, the administrator and director shall, and then if you skip to C, comply with the regulations. [00:19:10] Speaker 03: And I think that's simply what Congress said you had to comply with. [00:19:17] Speaker 03: but it doesn't say that you can't use the categorical exclusion. [00:19:20] Speaker 03: So I think you have to go back. [00:19:22] Speaker 02: Let me suggest, counsel, let me just suggest something to you that may give some explanation. [00:19:29] Speaker 02: The Solicitor General's Office in 1976, in one of the, if not the leading NEPA case, Kleppe versus Sierra Club, [00:19:40] Speaker 02: in the brief, dropped a footnote and said that the CEQ didn't have any kind of regulatory authority and that whatever it said was merely advisory. [00:19:54] Speaker 02: And it was after the administration changed that President Carter issued this executive order giving them regulatory authority. [00:20:04] Speaker 02: But there's been four opinions by judges on our court [00:20:09] Speaker 02: that questioned whether CEQ regulations were binding. [00:20:14] Speaker 02: And so it's been an open issue. [00:20:16] Speaker 02: And one of the explanations for why this, I'm going to call it Plan Act, incorporated the CEQ regs by reference is because there's doubt about whether they're valid or not. [00:20:32] Speaker 02: And so the overall question still remains and the absence [00:20:39] Speaker 02: of any kind of incorporation of this categorical exclusion business to me is quite telling. [00:20:51] Speaker 02: And that is what your agency relied upon in this particular matter. [00:20:59] Speaker 02: And I must say that some of the agencies throughout the government have incorporated [00:21:05] Speaker 02: in CEQ regulations, and they've done it by regulation. [00:21:09] Speaker 02: But so far as I can tell, the Department of Transportation has never issued a regulation saying that it considers itself bound by CEQ regs. [00:21:20] Speaker 02: Am I right about that? [00:21:22] Speaker 03: Your honor, I can't actually speak to that. [00:21:24] Speaker 03: I don't know the answer. [00:21:27] Speaker 03: I will say that FAA is as a sub agency of Department of Transportation does have orders that it issues with notice, I believe with notice and comment. [00:21:39] Speaker 03: It has orders that are binding those orders. [00:21:42] Speaker 03: And the order on environmental matters is 1050.1f. [00:21:46] Speaker 03: It's FAA order 1050.1f. [00:21:49] Speaker 03: And that's the order where FAA says how it will implement NEPA. [00:21:54] Speaker 03: And I don't off the top of my head know if it incorporates all of the CEQ regulations. [00:21:59] Speaker 03: But I believe it does closely track, at least. [00:22:03] Speaker 03: And as far as I know, both agencies here [00:22:07] Speaker 03: I did want to note that the regulation that they applied as to this categorical exclusion is the updated regulation that CEQ issued in 2022 or 2020, excuse me. [00:22:24] Speaker 03: So this is not a [00:22:26] Speaker 03: so that the regulation that the agencies followed here was an updated version of CEQ's regulations. [00:22:35] Speaker 02: I understand that. [00:22:35] Speaker 02: I think it's a bit more complicated than that. [00:22:37] Speaker 02: The only order that I've been able to find from the Department of Transportation dealing with CEQ regs is [00:22:47] Speaker 02: It dated 1985. [00:22:49] Speaker 02: And I, you know, there's been a lot of water over the dam since then. [00:22:55] Speaker 02: And one more thing, just to round this out. [00:22:58] Speaker 02: In June, Congress passed a new statute, that 4336. [00:23:03] Speaker 02: Are you aware of that? [00:23:05] Speaker 03: Yes, Your Honor, I'm aware of the statute, but I did want to point out that this decision was made before that statute. [00:23:10] Speaker 02: That's right. [00:23:11] Speaker 02: That's right. [00:23:12] Speaker 02: I know. [00:23:12] Speaker 02: But that's that statute is another example of Congress's lack of, I say, [00:23:23] Speaker 02: agreement about whether CEQ regulations are binding because what it does is incorporate without saying it, without saying a bunch of CEQ language. [00:23:37] Speaker 03: I'm not sure I can help solve that puzzle other than to say that the agencies here did act under the CEQ regulations and treated them as if they were binding and no one is challenged whether they should apply here. [00:23:52] Speaker 02: Well, that's accepted. [00:23:54] Speaker 02: One of the problems that you run into is that we're dealing with a separation of powers and a congressional or a constitutional issue here that about agency, you know, not even an agency. [00:24:08] Speaker 02: If it is an agency, the Council on Environmental Quality, what their authority is under the Constitution, if they've never been authorized to exercise it. [00:24:19] Speaker 00: Can I ask one related question? [00:24:21] Speaker 00: On B2, there's references to finding a no significant impact environmental assessment. [00:24:29] Speaker 00: Are those terms, those are not statutory terms, those are purely regulatory terms. [00:24:35] Speaker 00: In other words, those aren't statutes that appear in NEPA. [00:24:40] Speaker 00: I believe those are from the CEQ regulations. [00:24:47] Speaker 00: And other regulations. [00:24:48] Speaker 00: There must be other agencies that have regulations that also use them. [00:24:53] Speaker 03: FA's regulations, FA's orders, which are binding, refer to these sorts of terms. [00:24:58] Speaker 03: They also refer to categorical exclusions. [00:25:00] Speaker 03: The same thing with the park service. [00:25:02] Speaker 03: They have their own set of regulations. [00:25:04] Speaker 03: that also apply, and they generally track with the same terms. [00:25:08] Speaker 02: The orders you're referring to are not APA orders, are they? [00:25:13] Speaker 02: I mean, you don't put them out for notice and comment, do you? [00:25:18] Speaker 03: Your Honor, I do believe that the FAA order does go out for notice and comment. [00:25:24] Speaker 03: I may be wrong about that, it wasn't an issue here, but I do, and they are binding, the agency does treat them as binding. [00:25:32] Speaker 01: Yeah, right, okay. [00:25:36] Speaker 00: Make sure my colleagues don't have additional questions. [00:25:38] Speaker 00: Thank you, council. [00:25:39] Speaker 00: Thank you. [00:25:42] Speaker 00: Mr. Jenkins, we'll give you two minutes for rebuttal. [00:25:47] Speaker 04: Well, first on the issue that we've talked about, I wonder if the court would like to invite supplemental briefing because frankly, neither party fully addressed that section and how the apparent exclusion of categorical exclusions as an option in that 4C section that was talked about. [00:26:07] Speaker 04: how that applies here, but I would suggest that it applies very clearly, which is in interpreting 5040128B2, the section that lays out the need to do NEPA for air tour plans and [00:26:24] Speaker 04: you can interpret the later exclusion of category exclusions as informing your reading of that earlier section. [00:26:32] Speaker 04: That's why they didn't include categorical exclusion as an option in that earlier section. [00:26:40] Speaker 04: And it was intentional. [00:26:42] Speaker 04: Also, council has said that, well, the list was merely illustrative, but the only other option would have been the category exclusion [00:26:52] Speaker 04: as a NEPA decision document, but it was deliberately left out. [00:26:57] Speaker 04: So did Congress deliberately leave out categorical exclusion just to leave us all guessing as to what Congress's intent was? [00:27:04] Speaker 04: No, I think the better reading that doesn't make that section superfluous is that Congress intended to cabin their discretion. [00:27:12] Speaker 04: If I could have a minute, I mean, the issue of the application here is really important. [00:27:18] Speaker 04: We briefed it, [00:27:19] Speaker 04: The application was just so strange because they invoked a categorical exclusion for developing a new air tour plan for 2,500 flights affecting dozens and dozens of square miles in the Bay Area and millions of people and called it a minor insignificant administrative action because they said, well, it changed or amended a prior action. [00:27:43] Speaker 04: It didn't change or amend any prior action. [00:27:46] Speaker 04: First of all, and second of all, it clearly had more than insignificant environmental impacts. [00:27:51] Speaker 04: The agencies has agreed in its brief that there were potentially significant environmental impacts from this new plan, but they said, well, it's all mitigated. [00:28:01] Speaker 04: So we've mitigated all these environmental impacts. [00:28:03] Speaker 04: So the end result, [00:28:05] Speaker 04: is that they're justifying their categorical exclusion by so-called mitigating all the environmental impacts. [00:28:13] Speaker 04: If that was the way that NEPA was meant to be applied, then every action could eventually be mitigated down and categorically excluded in this way. [00:28:22] Speaker 04: So I guess I'll close with that argument. [00:28:25] Speaker 04: Appreciate the attention. [00:28:29] Speaker 04: Like I said, if there's an interest in supplemental briefing on that issue, we'd be happy to do that. [00:28:35] Speaker 00: Thanks. [00:28:35] Speaker 00: Thank you, council. [00:28:36] Speaker 00: Thank you to both council. [00:28:38] Speaker 00: We'll take this case under submission.