Union Neighbors United, Inc. v. Jewell , 83 F. Supp. 3d 280 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNION NEIGHBORS UNITED, INC.,
Plaintiff,
Civil Case No. 13-01435 (RJL)
FELED
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{'L’ Clerk, US District a Bankruptm
MEMORANDUM OPINION 3W5 f6? Gist-rm a! Calumbi?
March l 2015 [Dkt. ## 35, 37, 38]
V.
S.M.R. JEWELL, et al.,
Defendants.
Plaintiff Union Neighbors United, Inc. (“plaintiff’ or “Union Neighbors”),l
brought this action against Sally Jewell in her official capacity as the Secretary of the
Unites States Department of the Interior (“D01”), Daniel Ashe in his Official capacity as
Director Of the United States Fish and Wildlife Service (“FWS” or “Service”), and Tom
Melius, in his Official capacity as Regional Director for the Midwest Region of the FWS
(together “defendants”) on September 20, 2013, challenging defendants’ final approval
and issuance of an incidental take permit for the killing of endangered Indiana bats at the
Buckeye Wind Power Project in Ohio. See Complaint at W 1-3 (“Compl.”) [Dkt. # 1].
Plaintiff claims that defendants’ issuance Of an incidental take permit violated the
Administrative Procedure Act, 5 U.S.C. §§ 701-706, the National Environmental Policy
Act (“NEPA”), 42 U.S.C. §§ 4321 et seq., and the Endangered Species Act (“BSA”), 16
1 Plaintiff is a non-profit corporation based in Ubrana, Ohio which was formed to promote the
safety and well-being of the Champaign County community by addressing issues relating to the
siting Ofindustrial wind turbines. Compl. W 17-18.
1
U.S.C. §§ 1531 et seq, as arbitrary and capricious, an abuse of discretion, and not in
accordance with the ESA’s requirement that an applicant will, to the maximum extent
practicable, minimize and mitigate the impacts of a taking. See Pl.’s Mem. of Law in
Support of Pl.’s Mot. for Summary Judgment (“Pl.’s Mem.”) [Dkt. # 35-1] at 1-3. Now
before the Court are plaintiff's Motion for Summary Judgment (“P135 Mot”) [Dkt. # 35],
defendants Jewell, Ashe, and Mellius (the “federal defendants”) Cross Motion for
Summary Judgment [Dkt. # 38], and defendant-intervenor Buckeye Wind, LLC’s Cross
Motion for Summary Judgment [Dkt. # 37].2 After due consideration of the parties’
pleadings, the relevant law, and the entire record in this case, the Court agrees with
defendants that the incidental take permit was issued in accordance with the law.
Accordingly, the defendants’ motions for summary judgment are GRANTED, the
plaintiff‘s motion for summary judgment is DENIED, and the case is DISMISSED.
FACTUAL BACKGROUND
The Indiana bat is a medium-sized migratory bat found in much of the eastern half
of the United States with major populations hibernating in Indiana, Kentucky, and
Missouri, as well as smaller populations hibernating in other states such as Ohio. AR
49774. 3 The Indiana bat was listed as an endangered species in 1967 due to large
decreases in population size and an apparent lack of winter habitat. 32 Fed. Reg. 4,001
(Mar. 1 l, 1967); AR 49775. There are many ongoing threats to the Indiana bat,
2 Buckeye Wind LLC filed an unopposed motion to intervene on January 8, 2014, which I
granted on February 12, 2014. See Order [Dkt. # 30].
3 The parties filed a joint appendix of the administrative record on September 29, 2014, which
will be referred to by its individually numbered pages in this Opinion. See Notice of Filing of
Administrative Record Appendix [Dkt. # 47].
extent practicable.” AR 50057 (emphasis added). Once the impact was fully mitigated,
it was not necessary for FWS to determine whether more mitigation was possible, or
whether the impact could possibly be minimized further.
Undaunted, plaintiff further argues that Chevron deference is inappropriate
because the plain meaning of the statute demonstrates Congressional intent contrary to
the Service’s interpretation. P1.’s Mem. at 11-12. I disagree. Plaintiff claims that the
dictionary definition of “minimize” means “to reduce take until further reduction is
impracticable.” Pl.’s Mem. at 16-17, 20-21. However, the Norton I court rejected
precisely this restrictive definition as the only one compelled by the text of the statute,
noting that “maximum extent practicable” does not mean “the most that can possibly be
done” or “the most the developers could pay while still going forward with the project.”
306 F. Supp. 2d at 928 n. 12. The Norton I court found that while the statutory meaning is
“not entirely clear, the term does not simply equate to ‘possible.”’ Id. Instead,
“practicable” is more often used to mean “along the lines of ‘reasonably capable of being
accomplished.” Id. (citing Black’s Law Dictionary (7th ed. 1999)).10
10 Plaintiff also argues that because ESA Section 7 requires an incidental take statement with a
specified amount or extent of take, then the meaning of BSA Section 10’s “impact of . . . taking”
language must also be in terms ofa specific numeric amount, and, that “maximum extent
practicable” must then be interpreted to require FWS only to approve proposals with the lowest
possible number ofindividual takes. Pl.’s Mem. at 17—19. However, plaintiff ignores that the
two provisions serve different purposes, see WildEarth Guardians v. U. S. Fish & Wildlife Serv.,
622 F. Supp. 2d 1 155, 1163-64 (D. Utah 2009) (“Section 7 requirements does not support that an
incidental take permit must include the specific numeric take amount”), and that the “impact”
language has been treated differently in regulations of Section 10. Compare 50 C.F.R. §
l7.32(b)(l)(iii)(B) (requiring information about the species to be covered, including the number,
age, and sex ofindividuals, if known) with id. § 17.32(b)(l)(iii)(C) (requiring a habitat
conservation plan that specifies the impact that will likely result from such taking).
11
As discussed above, FWS used the best available scientific evidence and
modeling, as well as its expertise, to conclude that the Proposal will adequately protect
the Indiana bat. Accordingly, that conclusion is entitled to deference because it is
rational and Congress has entrusted those decisions to the Service. See See Am.
Wildlarzds v. Kempthorrze, 530 F.3d 991, 1000 (DC. Cir. 2008) (“The rationale for
deference is particularly strong when the [agency] is evaluating scientific data within its
technical expertise [.]” (citation omitted)); Loggerhead Turtle, 120 F. Supp. 2d. 1005,
1022 (MD. Fla. 2000) (the Service’s selection of minimization and mitigation measures
“is entitled to deference due to its biological expertise”).
In addition to challenging the agency action under Chevron, plaintiff argues that
Gerber v. Norton, 294 F.3d 173, 185 (DC. Cir. 2002), establishes a rule under the ESA
whereby the Service cannot ignore plaintiffs proposed reasonable alternative11 because
the alternative would further reduce take and, therefore, the agency must make an
independent assessment that its proposed reasonable alternative is impracticable. See
Pl.’s Mem. at 37—40. Simply put, plaintiff misreads Gerber.
In Gerber, the Service made a finding that an alternative existed that would reduce
the taking of the affected species, and the developer even acknowledged that this
alternative would “greatly reduce” the takes at issue. Gerber, 294 F.3d at 185. In
response the Service did not prepare an “independent” analysis, but rather it “relied on
the developer’s word that the proposed alternative was impracticable, without any
H Plaintiff presses for its preferred 6.5 m/s cut-in speeds instead of the Project’s proposed
feathered cut-in speeds that range from 3.0 to 6.0 m/s. See P1.’s Mem. at 37-40.
12
supporting analysis.” Nat ’1 Wildlife Fed’rz v. Norton, No. 04 Civ. 579, 2005 WL 2175874at *18 (ED. Calif. Sept. 7, 2005) (“Norn'on 1]“) (citing Gerber, 294 F.3d at 185). Here,
by contrast, the administrative record shows that the Service satisfied its duty to make the
maximum extent practicable finding because the Service made a finding that Buckeye
Wind’s proposal contained mitigation measures that would “fully offset” the impacts of
the taking, and that the Project would therefore not have statistically significant
population impacts on the Indiana bat. See AR 50059-60 (concluding that impact ofthe
taking is minimized “to the maximum extent practicable—to the extent that the impacts
are insignificant”). Gerber is therefore inapposite because in this case the agency made
the required finding under the ESA. Furthermore, it would be unnecessary, and indeed
wasteful of agency resources, for this Court to require that the Service reject proposed
alternatives as impracticable even after the Service has first found that proposed
minimization and mitigation measures have “fully offset” the impact to a species and that
a project will not have a statistically significant impact on the species. See Norton 1, 306
F. Supp. 2d at 928 (approving similar FWS interpretation to avoid “absurd results”).
The meaning of“maximum extent practicable" is ambiguous, and FWS’s
interpretation is reasonable, as was its application of its interpretation to the specific
Project at issue. As a result, FWS did not violate the EPA when it issued the incidental
take permit to Buckeye Wind.
111. National Environmental Policy Act
Finally, plaintiff contends that defendants violated NEPA by failing to consider its
preferred reasonable alternative of 6.5 m/s cut-in speeds in the EIS. Pl.’s Mem. 40-45. I
13
disagree. Our Circuit Court has held that an agency “bears the responsibility for deciding
which alternatives to consider in an environmental impact statement," and that its
decision must only follow the “rule of reason.” Citizens Against Burlington, Inc. v.
Busey, 938 F.2d 190, 195 (DC. Cir. 1991) (citations omitted). The selection of
alternatives must be reasonable, as defined in relation to the objectives of a particular
action that the agency sets out. 1d. at 195—96 (citing 40 C.F.R. §§ 1502.l4(a)-(c),
1508.25(b)(2)). Under the rule of reason standard, the Court will “uphold an agency's
definition of objectives so long as the objectives that the agency chooses are reasonable,”
and its “discussion of alternatives so long as the alternatives are reasonable and the
agency discusses them in reasonable detail.” Id. at 196.
Here, the Service considered three action alternatives in addition to a no-action
alternative in its EIS analysis. As discussed above, the Service considered not only
Buckeye Wind’s proposal but a maximally restrictive alternative, a minimally restrictive
alternative, as well as a “no action” alternative. AR 45818—38. The omission of
plaintiff’s preferred proposal does not negate the fact that the alternatives that the agency
did analyze were reasonable. See Theodore Roosevelt Conservation P's/tip v. Salazar,
744 F. Supp. 2d 151, 161 (D.D.C. 2010) (“The agency's objective did not involve
reducing development, and thus the [agency’s] decision to omit a scaled—back
development alternative from its analysis did not violate NEPA.”); see also City of
Alexandria, Va. v. Slater, 198 F.3d 862, 869 (D. C. Cir. 1999) (noting that the scope of
“reasonable alternatives” is narrower when the project is not of “national scope” but
rather is a “discrete” project such as a “single canal or dam”), The objective at issue
14
here—~approving a wind—turbine facility~is commensurate with the scope of the
alternatives considered by the agency, and, as a result, the Service did not violate NEPA.
CONCLUSION
Thus, for all of the foregoing reasons, defendants’ actions complied with the
relevant provisions of NEPA, BSA, and the APA, and will be upheld. Accordingly,
defendants’ motions for summary judgment are GRANTED, plaintiffs motion for
summary judgment is DENIED, and this case is DISMISSED with prejudice. A separate
Order consistent with this decision accompanies this Memorandum Opinion.
l ,
RICHARD .LE N
United States ' rict Judge
15
including diseases such as white nose syndrome as well as the relatively new threat of
wind turbines. AR 49781-82.
Under development since 2006, the Buckeye Wind Project (the “Project”) is
planned to be a lOO-turbine wind generation facility in west-central Champaign County,
Ohio. that will generate 657,000 megawatt hours of electricity annually. AR 47741-42,
47749. Although there are no Indiana bat hibernacula in the immediate area, summer
resident bats occur within the vicinity of the Project in June and July, and Indiana bats
travel through the area during the spring (April and May) and fall (August through
October) as part of their migration to and from hibernacula. AR 47737.4 Because the
operation of the turbines has the potential to injure or kill individual bats, Buckeye Wind
applied for an ESA Section 10 Incidental Take Permit (“ITP”) and the Project was
subjected to a NEPA analysis, which resulted in an environmental impact statement
(“EIS”).
In the habitat conservation plan (“HCP”) submitted by Buckeye Wind as part of its
ITP application, an operational scheme was proposed to minimize injury or death to
individual bats through the use of higher cut—in speeds that are “feathered.” The cut-in
speed is the wind speed at which the turbines begin rotating and producing power. When
turbines are “feathered,” they do not rotate below the increased cut-in speed. AR 47738.
4 Indiana bat hibernacula consist of well-developed limestone caverns where the bats hibernate
during winter months. AR 49774. Prior to winter hibernation, bats congregate outside
hibernacula building up fat reserves and mating, a period of activity known as swarming. Id.
Females tend to emerge from hibernacula sooner than males, from the end of March to mid~
April, with males emerging by the beginning of May. AR 49775. While some bats remain near
hibernacula, Indiana bats can migrate hundreds of miles from their hibernacula to a summer
habitat, with a maximum documented migratory distance of 357 miles. Id.
3
While the general risk of bat species collision with turbine blades is well—documented,
there is little specific data on the risk of Indiana bat collision or what operational speeds
would reduce that risk. AR 47855. Accordingly, Buckeye Wind developed a collision
risk model based on the available literature, expert opinion, and site—specific empirical
data. Id.5 Using studies on the effectiveness of feathering and cut—in speeds, the Project
proposal resulted in a take estimate of about 5.2 bats per year using feathered cut-in
speeds ranging between 3 m/s and 6 m/s depending on habitat sensitivity and season. AR
47860.6 The Project proposal also included measures to mitigate the impacts of the takes,
such as the acquisition and protection of 217 acres of habitat within seven miles of a
“Priority 2”7 hibemaculum in Ohio. AR 47911.
The Service considered three action alternatives in addition to a no—action
alternative in its 1318 analysis. First, the Service considered Buckeye Wind’s proposal of
feathered cut-in speeds, as described above, that vary based on habitat sensitivity and
season. See AR 45818-37. Second, the Service evaluated the maximally restrictive
alternative that required full turbine curtailment at night for a seven month period,
thereby eliminating altogether the take of Indiana bats. See AR 45837-38. Third, the
Service considered a minimally restrictive alternative that required a 5.0 m/s cut-in speed
5 The model used three periods of potential risk: spring migration; summer habitat use; and fall
migration. 1d. The population estimate of bats in the area was conservatively estimated at a
summer range of 1 1 to 2,271 bats, and a spring and fall migratory estimate of 2,900 to 5,800
bats. AR 47856. The model used empirical data to estimate the proportion of bats assumed to be
flying within the area of the turbine blades (the “rotor swept zone”) and used three probabilities
to distribute those estimates. AR 47857.
6 With no protective measures implemented, the model resulted in a range of annual take from
6.9 to 25.4 fatalities, with the majority occurring in the fall season. AR 47859.
7 “Priority 2" is a hibemaculum where between 1,000 and 9,999 Indiana bats hibernate.
4
from August through October, the timeframe when most bats of all species are killed.
See AR 45838.
On July 17, 2013, the Service issued its findings with respect to the Section 10 ITP
application based on the analyses from the habitat conservation plan, biological opinion,8
and environmental impact statement. The Service explained that the statutory standard
requires minimization of impacts of the proposed taking to the maximum extent
practicable and then mitigation of any remaining impacts to the maximum extent
practicable. AR 49964. The Service further explained that these standards are based on a
biological determination of the impacts of the project, what would further minimize those
impacts, and what would biologically compensate for the remaining impacts. Id. The
Service’s interpretation of the standard is that it is
the Service’s obligation to provide or approve a biologically based suite of
avoidance, minimization, and mitigation options that allow the applicant to fully
neutralize and/or compensate for the impacts of the taking. If the applicant
provides these minimization measures and mitigation measures that are fully
commensurate with the level of impacts, then it has met that issuance criterion and
detailed discussion of ‘practicability’ is not required.
AR 49964-65 (emphasis added). The Service found that the Project met the required
standard, explaining that that the feathered cut-in speeds are the “strictest operational
protocols,” provide the highest quality habitat areas during the seasonal periods of
highest risk, and provide “avoidance measures that are commensurate with potential risk
8 A biological opinion is the final product of a rigorous and lengthy “formal consultation”
process by experts at the FWS pursuant to the ESA, which requires review of federal actions that
potentially jeopardize a threatened or endangered species. See 50 C.F.R. 402.14. The F WS’s
biological opinion concluded that the Project is “not likely to jeopardize the continued existence
of Indiana bats.” AR 49824.
to Indiana bats.” AR 49965. Based on the take estimated to occur from this operational
plan, Buckeye Wind was approved for a five-year take limit of 26 individual takes or 130
individual takes over a 25 year period. AR 50040—42, 47861.
LEGAL STANDARDS
1. Standard of Review
Summary judgment is appropriate when the pleadings and the record demonstrate
that “there is no genuine issue as to any material fact and that the moving party is entitled
tojudgment as a matter oflaw.” Fed. R. Civ. P. 56(C). The moving party bears the initial
burden of demonstrating the absence of a genuine dispute of material fact. See Celotex
Corp. v. Catrett, 477 US. 317, 323 (1986). In this case, where cross—motions for
summary judgment are at issue, the Court draws all reasonable inferences regarding the
assertions made in a light favorable to the non-moving party. Flynn v. Dick Corp, 384 F.
Supp. 2d 189, 192 (D.D.C. 2005). The Court will “grant summaryjudgment only if one
of the moving parties is entitled to judgment as a matter of law upon material facts that
are not genuinely disputed.” Consumer Fed’n of Am. v. US. Dep ’t of Agric, 383 F. Supp.
2d 1, 3 (D.D.C. 2005).
11. Standard of Review for Agency Actions Pursuant to ESA and NEPA
F WS’s actions are reviewed by this Court in accordance with the judicial review
provisions of the Administrative Procedure Act. NRDC v. Daley, 209 F.3d 747, 752
(DC. Cir. 2000); Gerber v. Norton, 294 F.3d 173, 178 n. 4 (DC. Cir. 2002); Tulare
County v. Bush, 306 F.3d 1138, 1143 (DC. Cir. 2002). When doing so, the Court must
determine whether the challenged decision is “arbitrary, capricious, an abuse of
6
discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). In making
this inquiry, the Court “consider[s] whether the [agency's] decision was based on a
consideration of the relevant factors and whether there has been a clear error of
judgment.” Citizens to Preserve Overton Park, 401 U.S. at 415-16. At a minimum, the
agency must have weighed the relevant data and articulated an explanation that
establishes a “rational connection between the facts found and the choice made.” Bowen
v. Am. Hosp. Ass'n, 476 U.S. 610, 626 (1986). In the final analysis, an agency decision is
arbitrary and capricious if the agency:
has relied on factors which Congress has not intended it to consider, entirely failed
to consider an important aspect of the problem, offered an explanation for its
decision that runs counter to evidence before the agency, or is so implausible that
it could not be ascribed to a difference in view or the product of agency expertise.
Motor Veh. Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 US. 29, 43 (1983); see
also County ofL.A. v. Shalala, 192 F.3d 1005, 1021 (DC. Cir. 1999) (“Where the agency
has failed to provide a reasoned explanation, or where the record belies the agency's
conclusion, [the court] must undo its action”).
ANALYSIS
1. Standing
As a threshold matter, defendant Buckeye Wind challenges plaintiff’s standing on
the basis that plaintiff only claims that it is “likely” that its members have seen Indiana
bats. See Buckeye Wind, LLC’s Cross—Motion for Summary Judgment, at 4 [Dkt. # 37-
1]. The desire to use or observe an animal species, even for purely esthetic purposes, is
undeniably a cognizable interest for purpose of standing. Lujan v. Defenders of Wildlife,
504 US. 555, 562 (1992). Injury exists where agency conduct threatens to diminish or
deplete the overall supply of endangered animals available for observation and study.
See Humane Soc. ofUS. v. Babbitt, 46 F.3d 93, 97 (DC. Cir. 1995).
In this case, it is unquestionable that the Project will result in the killing of Indiana
bats. Indeed, the Project, as approved, is permitted to take up to 130 bats over 25 years
under the terms of the incidental take permit. See AR 49803. Plaintiff has named
specific members who have attested that they live near Buckeye Wind’s proposed facility
and that the Project will imminently harm their interest in observing and benefiting from
the Indiana bats. 9 Moreover, the Supreme Court itself in Summers v. Earth Island
Institute, which is relied upon by defendant, addressed different factual circumstances
where unidentified members of a national organization might visit unidentified parcels
affected by FWS procedures. See 129 S. Ct. 1 142, 1151 (2009). Accordingly, plaintiff
does, indeed, have standing to challenge the agency actions at issue.
II. Endangered Species Act
Plaintiff argues that F WS inappropriately applied the Endangered Species Act
(“ESA”) by not “minimizing” the take to the lowest possible amount before applying
mitigation measures to offset any take that could not possibly be avoided or minimized.
Pl.’s Mem. at 14. I disagree. Although plaintiff’s two-step approach may be a
reasonable interpretation of the statutory language, the statute does not compel its
preferred interpretation, and the agency’s interpretation must be upheld.
9 See Affidavit of Robert McConnell [Dkt # 42-1]; Affidavit of Julia F. Johnson [Dkt # 42-2];
Affidavit of Anita Bartlett [Dkt # 42-3]; Affidavit of James Bartlett [Dkt. # 42-4]; Suppl.
Affidavit of Julia Johnson [Dkt # 42-5]; Suppl. Affidavit of Anita Bartlett [Dkt. # 42—6].
8
The ESA prohibits the taking of any listed endangered species within the United
States. 16 U.S.C. § 1538(a)(1)(B), (G). Section 10 of the ESA provides an exemption
from the take prohibition ifthe take is incidental to otherwise legal conduct and ifthe
take “will not appreciably reduce the likelihood of the survival and recovery of the
species in the wild.” 16 U.S.C. § 1539(a)(2)(B). A permit for such incidental taking
shall issue if there is a finding, inter alia, that the applicant “will, to the maximum extent
practicable, minimize and mitigate the impacts of such taking.” 16 U.S.C.
§ 1539(a)(2)(B).
The standard that an applicant will “to the maximum extent practicable, minimize
and mitigate the impacts" of the taking is not defined in either the statute or in formal
agency regulations. See Nat ’1 Wildlife Fed’n v. Norton, 306 F. Supp. 2d 920 (ED. Cal.
2004) (“Norton 1”). However, the 1996 Habitat Conservation Planning and Incidental
Take Permit Handbook (“Handbook”), jointly promulgated with National Marine
Fisheries Service after notice and comment, provides guidance on an agency’s
interpretation of this provision. See AR 61315-16. The Handbook permits an agency to
place less emphasis on whether a program is the “maximum that can practically be
implemented by the applicant” if an applicant can first demonstrate that the minimization
and mitigation provide substantial benefits to the species. AR 61315-16. Here, the FWS
found that the minimization and mitigation measures “fully offset” the impact of the
taking of Indiana bats, and thus, it was not necessary to determine if the plan was the
"maximum that can be practically implemented by the Applicant.” AR 50060.
Where statutory language such as “maximum extent practicable” is ambiguous, a
reasonable construction of the language by the Service is entitled to deference under
Chevron USA. Inc. v. Natural Resources Defense Council, 467 US. 837 (1984). See,
e.g., Int’l Internship Programs v. Napolitano, 853 F. Supp. 2d 86, 97 (D.D.C. 2012). In
Norton I, the agency’s interpretation of the maximum extent practicable standard, on
facts very similar to those here, was afforded Chevron deference. The challengers in
Norton I advanced a reading that would require a developer to mitigate as much as the
developer could possibly afford. 306 F. Supp. 2d at 927-28. The Norton I court rejected
this reading and upheld the agency’s interpretation that no additional mitigation was
required once the impact was fully mitigated. Id. (“the statutory language does not
suggest that an applicant must ever do more than mitigate the effect of its take of
species”). The Norton I court noted that the agency interpretation was “entirely
reasonable and avoids absurd results,” as well as avoids “unduly enmeshing the Service
in developers’ economic affairs and projections.” 306 F. Supp. 2d at 928; see also
Wz'ldEarth Guardians v. FWS, 622 F. Supp. 2d 1155, 1165 (D. Utah 2009) (FWS has
interpreted the maximum extent practicable language “to mean mitigation that “is
rationally related to the level of take under the plan,’ and courts have agreed with this
interpretation” (citation omitted)).
The same analysis applies here. The FWS found that Buckeye Wind’s Project has
“minimization measures and mitigation measures that are fully commensurate with the
level of impacts” and that the Project “implements mitigation that offsets the impacts of
the take,” and, as a result, the Project has “minimized and mitigated to the maximum
10