[00:00:00] Speaker 04:
Want to move on to the car case now?

[00:00:02] Speaker 04:
Yes.

[00:00:03] Speaker 04:
Thank you, Your Honor.

[00:00:03] Speaker 04:
So we'll start your time again.

[00:00:05] Speaker 04:
OK, on the car case?

[00:00:07] Speaker 04:
Right.

[00:00:08] Speaker 04:
I don't know.

[00:00:08] Speaker 04:
How much time does he have on the car case?

[00:00:12] Speaker 05:
No, no.

[00:00:12] Speaker 05:
No, 10 minutes.

[00:00:13] Speaker 04:
He's finished with this case.

[00:00:14] Speaker 04:
We're now moving on to the next.

[00:00:15] Speaker 05:
10 minutes.

[00:00:15] Speaker 05:
We're going to the next case.

[00:00:16] Speaker 04:
Is it 10 minutes?

[00:00:18] Speaker 04:
Yeah, OK.

[00:00:18] Speaker 04:
Why don't you start the clock again?

[00:00:21] Speaker 01:
May it please the Court.

[00:00:22] Speaker 01:
Yes.

[00:00:22] Speaker 01:
I reserve one minute for the bottle.

[00:00:27] Speaker 01:
The issues here, the substantive issues, are very much like the issues in the truck rule case.

[00:00:34] Speaker 04:
Is there any way in which the standing issues are different?

[00:00:38] Speaker 01:
Yes, Your Honor.

[00:00:39] Speaker 01:
The standing issue is different, as counsel for the government pointed out, in that here, in the Carr Rule, we don't have a direct challenge to the regulation itself.

[00:00:54] Speaker 01:
There was first a petition for reconsideration that was filed, and that petition was denied, and the petitioners are challenging EPA's denial of the administrative petition for reconsideration.

[00:01:08] Speaker 01:
Okay.

[00:01:10] Speaker 01:
That's the procedural difference.

[00:01:13] Speaker 04:
Yes.

[00:01:13] Speaker 04:
And how does that change the standing question?

[00:01:21] Speaker 01:
I'm not sure, Your Honor, that it changes the standing question.

[00:01:26] Speaker 01:
Right, it doesn't.

[00:01:27] Speaker 04:
I guess I'd ask the question this way.

[00:01:31] Speaker 04:
If the court thought you lacked petitions like Article III standing in the truck case, is there any reason why they would have Article III standing in this case?

[00:01:42] Speaker 01:
No, Your Honor, but the converse of that is also true.

[00:01:45] Speaker 01:
If the court found that we did have standing in the truck case, there's no reason why we wouldn't.

[00:01:49] Speaker 01:
So the standing issues are identical as far as you're concerned.

[00:01:51] Speaker 01:
I think Your Honor is correct.

[00:01:52] Speaker 05:
The applicability of the California rule is the same with respect to trucks and cars.

[00:01:57] Speaker 01:
It's a different California rule, but the issue is exactly the same.

[00:02:01] Speaker 01:
Yes.

[00:02:03] Speaker 05:
Now, I just want to point out you can respond if you want.

[00:02:05] Speaker 05:
You mentioned Larson in the other case.

[00:02:07] Speaker 05:
The difference in those cases is they are not coterminous.

[00:02:10] Speaker 05:
The regulations there were not coterminous, and here they are.

[00:02:16] Speaker 01:
Well, what, what, uh, both of those cases... I just read them.

[00:02:20] Speaker 01:
Yeah.

[00:02:21] Speaker 05:
I'm telling you what they said.

[00:02:22] Speaker 05:
Okay.

[00:02:22] Speaker 05:
They're not coterminous.

[00:02:24] Speaker 05:
And so the court said, well, you know, if you make standing here, you can, you can proceed because that other regulation about which we're arguing is not exactly the same thing.

[00:02:34] Speaker 05:
That's not this case.

[00:02:37] Speaker 01:
Well, Your Honor, it may not be this case exactly on all fours.

[00:02:41] Speaker 05:
But you cited some authority to refute what Judge Tatel was asking you, and the authority is inopposite.

[00:02:49] Speaker 05:
So do you have any authority that supports your proposition?

[00:02:52] Speaker 01:
I don't believe it's inopposite, Your Honor, for the following reason, that the Supreme Court held that merely removing one cause of the injury

[00:03:03] Speaker 01:
meets the redressability.

[00:03:04] Speaker 05:
No, that's not what those cases say.

[00:03:06] Speaker 05:
The cases say the second regular, I'm looking at them right now.

[00:03:09] Speaker 05:
The second regulation is not the same as the first regulation.

[00:03:13] Speaker 05:
And so you're getting rid of one that's a barrier for you.

[00:03:17] Speaker 05:
It doesn't answer the question with respect to the second one.

[00:03:20] Speaker 05:
If you have two that are exactly the same, that's an entirely different scenario.

[00:03:25] Speaker 01:
I understand the question.

[00:03:27] Speaker 05:
If you knock out the federal one here, arguably, California is still in place.

[00:03:31] Speaker 05:
You haven't gotten any redress.

[00:03:33] Speaker 01:
I think we have because of the history of how California came to apply the federal standard.

[00:03:41] Speaker 01:
And there's a very long and complex history here.

[00:03:44] Speaker 01:
California wanted to have a much more stringent standard than the federal regulation.

[00:03:50] Speaker 01:
And as a result of negotiations between the state government and the federal government, an agreement was reached that compliance with the federal rule

[00:04:00] Speaker 01:
will result in compliance with the state rule.

[00:04:04] Speaker 01:
What about the NHTSA rule?

[00:04:07] Speaker 03:
NHTSA rule applies here too, right?

[00:04:08] Speaker 01:
The NHTSA rule applies here too.

[00:04:10] Speaker 03:
Let me stay just with the California assessment for one second.

[00:04:13] Speaker 03:
So the compromise was that California would adopt the lower federal standard.

[00:04:18] Speaker 05:
Right.

[00:04:19] Speaker 03:
If the lower federal standard goes away, then one could expect a stricter California standard, right?

[00:04:24] Speaker 01:
That may or may not be true, Your Honor.

[00:04:27] Speaker 03:
That doesn't help you if that happens.

[00:04:28] Speaker 01:
Well, I think the point that does help is that California premised its current standard based on the fact that the federal standard is what it is.

[00:04:40] Speaker 01:
And if the federal standard were to be vacated, then the reason for California to agree to the federal standard would no longer be there.

[00:04:48] Speaker 01:
That's true, but there's no reason for it to rescind it either.

[00:04:52] Speaker 05:
And there's no reason to make it weaker.

[00:04:54] Speaker 05:
It's just the opposite.

[00:04:55] Speaker 01:
Well, it goes back to one cause of the injury being taken away may cause California to rethink its agreement to use the federal rule as compliance with the state standard.

[00:05:10] Speaker 04:
You know, I would have thought, I'm a little surprised at your answer, because as I understand, at least with the car rule,

[00:05:19] Speaker 04:
And I'll ask the government, the situation is different than with NHTSA.

[00:05:22] Speaker 04:
Isn't it true that the California rule says that compliance with the federal rule is sufficient, right?

[00:05:32] Speaker 01:
Yes.

[00:05:34] Speaker 04:
So why isn't your answer to us well if we were to vacate the federal rule and the new rule was less rigorous, California's law would still say

[00:05:50] Speaker 04:
compliance with the federal rules is sufficient.

[00:05:52] Speaker 01:
I'm sorry, Judge Shail, you mean if a new federal car rule based on a remand was less rigorous?

[00:06:02] Speaker 01:
Right.

[00:06:03] Speaker 01:
Isn't that what you want?

[00:06:05] Speaker 01:
Yes.

[00:06:05] Speaker 01:
Yes.

[00:06:06] Speaker 01:
And that may ultimately lower the costs to the petitioners.

[00:06:11] Speaker 04:
That's why I asked you the question.

[00:06:13] Speaker 04:
But I heard you answer, Judge Ginsburg,

[00:06:16] Speaker 04:
At least with respect to the CAR rule, if we knock out the federal rule, the EPA rule, the state rule will apply.

[00:06:29] Speaker 04:
Right?

[00:06:30] Speaker 01:
That was your answer to Judge Ginsburg.

[00:06:32] Speaker 01:
That was my answer, but... But is that correct?

[00:06:35] Speaker 01:
Well, I think you... That was not your best answer.

[00:06:39] Speaker 04:
Yeah.

[00:06:40] Speaker 01:
I think you formulated it much better than I did.

[00:06:44] Speaker 05:
But I'm not sure... All right, okay, well... What about NHTSA?

[00:06:47] Speaker 04:
Yeah, but you still have NHTSA, right?

[00:06:49] Speaker 04:
Even if my formulation is better with respect to the California rule, California car rule, you still have NHTSA here, and NHTSA rule will apply even if you haven't pointed to anything.

[00:07:07] Speaker 04:
I would ask you this question in the truck case.

[00:07:11] Speaker 04:
You said you thought the agencies wouldn't apply the NHTSA, that the NHTSA rule wouldn't be applied if the EPA rule was struck down, but you didn't point to anything in it, and Council for the Government stood before us and said that that's not true, that the NHTSA rule

[00:07:30] Speaker 04:
will govern even if the EPA rules struck down.

[00:07:34] Speaker 04:
So we don't really care about the California rule, do we, when it comes to redressability?

[00:07:39] Speaker 01:
Well, I think on the NHTSA issue, the answer of the government was at best speculative, because the preambles say that there is one national program governing fuel economy

[00:07:57] Speaker 01:
and greenhouse gas emissions, that they're intertwined.

[00:08:01] Speaker 01:
One is based on the other.

[00:08:03] Speaker 01:
Okay.

[00:08:03] Speaker 04:
Yeah, but if we don't read the sentence the way you do to suggest that the NHTSA rule will not go forward if the EPA rules, if we don't agree with you about that reading of it, then do you agree that

[00:08:21] Speaker 04:
I know you've cited Arlington Heights and Larson, but setting those aside, you have a redressability problem, right?

[00:08:33] Speaker 01:
Two things, Your Honor.

[00:08:34] Speaker 04:
If the NHTSA rule continues in place, and you have not argued that the NHTSA rules and the EPA rules are any different.

[00:08:43] Speaker 04:
In fact, you've argued they're identical.

[00:08:45] Speaker 01:
then you've got a problem, right?

[00:08:47] Speaker 01:
Well, no, I'm sorry, Your Honor.

[00:08:49] Speaker 01:
I'm not arguing that the two are identical.

[00:08:51] Speaker 01:
They cover different territories.

[00:08:54] Speaker 01:
The NHTSA rule governs fuel economy, whereas the EPA rule governs greenhouse gas emissions.

[00:09:02] Speaker 04:
But the agency announcements say compliance with either one is sufficient.

[00:09:06] Speaker 01:
Well, that's what the agency's announcement said.

[00:09:09] Speaker 04:
But what else do we have to go on?

[00:09:11] Speaker 04:
That's their official statement.

[00:09:14] Speaker 01:
Their official statement is that the two standards comprise one indivisible national program for fuel economy and greenhouse gas emissions.

[00:09:25] Speaker 05:
All right, okay.

[00:09:30] Speaker 05:
I want to give you an opportunity to respond, because I'm sure the government's going to raise, if we ever got to the rule or the merits,

[00:09:41] Speaker 05:
The government has raised at least two compelling concerns.

[00:09:44] Speaker 05:
One, there's no formal review, and they're entitled to deference on their interpretation.

[00:09:49] Speaker 05:
And this is not a matter of central relevance, especially in this case.

[00:09:54] Speaker 01:
On both counts, Your Honor, the government is wrong.

[00:09:57] Speaker 01:
Here, EPA is interpreting the bare language of the statutory requirement that it does not administer, but with which it must comply.

[00:10:07] Speaker 01:
And under those circumstances, no deference is afforded under Chevron.

[00:10:10] Speaker 01:
or under me.

[00:10:13] Speaker 01:
And with regard to the substantial likelihood test or central relevance, if you will, there are a variety of factors.

[00:10:21] Speaker 01:
The totality of circumstances is, first, this court's decision in 1981

[00:10:27] Speaker 01:
in the API case requires submittal.

[00:10:30] Speaker 01:
Publication in the Federal Register or on the Internet is insufficient.

[00:10:36] Speaker 01:
Second, the language of the Science Advisory Board statute simply requires formal review and comment by other agencies.

[00:10:45] Speaker 05:
There's no limitation that before… You're not answering a question on central relevance, which is like a harmless error.

[00:10:52] Speaker 05:
Why is it of central relevance?

[00:10:53] Speaker 05:
There is a very clear standard there.

[00:10:55] Speaker 05:
Why is this of central relevance?

[00:10:57] Speaker 01:
This is of central relevance for the following reason.

[00:11:01] Speaker 05:
The court's decision in 1982 in the Kinnock... This was never even raised until the petition for reconsideration, right?

[00:11:06] Speaker 05:
I'm sorry?

[00:11:07] Speaker 05:
This was only raised at the petition for reconsideration, right?

[00:11:12] Speaker 05:
Sure.

[00:11:12] Speaker 01:
Yes, it was raised in the petition for reconsideration.

[00:11:14] Speaker 05:
Yeah, only at the petition for reconsideration.

[00:11:16] Speaker 05:
It wasn't raised before then.

[00:11:18] Speaker 01:
It was not.

[00:11:20] Speaker 01:
And that's an entirely different issue that we can discuss.

[00:11:23] Speaker 05:
Well, it makes me wonder how it can be of central relevance.

[00:11:26] Speaker 05:
It doesn't occur to you until... But in any event, why... Forget that for the moment.

[00:11:31] Speaker 05:
Why is it of central relevance?

[00:11:32] Speaker 01:
Okay.

[00:11:33] Speaker 01:
This Court's 1982 decision in the Kennecott case held that where EPA failed to include in the administrative record documents for public review and comment,

[00:11:45] Speaker 01:
That raised uncertainty with regard to what the comments would have been and what EPA's response to those comments would have been.

[00:11:56] Speaker 01:
And that uncertainty raised a substantial likelihood that the rule would have been significantly changed had the documents been included.

[00:12:06] Speaker 01:
And the analogy to this case is clear, that here the EPA's failure to submit the proposed rule to the Science Advisory Board raises uncertainty with regard to what the Science Advisory Board would have commented, what EPA's response to those comments would have been, and that raises a substantial likelihood that the rule would have been significantly changed.

[00:12:35] Speaker 01:
Add to that,

[00:12:36] Speaker 01:
the legislative history of the purpose for the Science Advisory Board requirement.

[00:12:44] Speaker 01:
That was enacted by Congress in 1979 specifically to deal with the criticism that the agency was facing that its underlying data and scientific analysis that reportedly supported its regulatory decisions were insufficient

[00:13:04] Speaker 01:
and inadequate.

[00:13:06] Speaker 01:
And in order to deal with that criticism, the Congress enacted this requirement that a blue-ribbon panel of experts be given the opportunity to review the underlying data and the science and then present its views to the EPA.

[00:13:22] Speaker 01:
So the notion that

[00:13:26] Speaker 01:
S.A.B.

[00:13:27] Speaker 01:
review will have a substantial likelihood of a significant change in the rule is built into the fabric of the S.A.B.

[00:13:37] Speaker 01:
statute.

[00:13:38] Speaker 04:
So your argument basically is that any failure to submit to the S.A.B.

[00:13:43] Speaker 04:
would satisfy the essential element?

[00:13:45] Speaker 04:
No, no, Your Honor.

[00:13:47] Speaker 04:
That's what you just said.

[00:13:47] Speaker 05:
That's what you just said.

[00:13:49] Speaker 05:
No, no, Your Honor.

[00:13:50] Speaker 05:
I'm not arguing such an extraordinary fabric that any time it involves science it

[00:13:54] Speaker 05:
The question has to go to the board.

[00:13:57] Speaker 01:
What did I miss?

[00:13:57] Speaker 01:
There is a concept of harmless error, and API deals with that.

[00:14:02] Speaker 01:
In the API, as you'll recall, in connection with EPA's development of the ozone standard, EPA submitted to the Science Advisory Board a set of criteria documents supporting the standard.

[00:14:15] Speaker 01:
The Science Advisory Board commented on those criteria documents.

[00:14:20] Speaker 01:
EPA changed the criteria documents, resubmitted them to the Science Advisory Board, and

[00:14:29] Speaker 01:
based on another set of comments, EPA changed the criteria documents again.

[00:14:34] Speaker 01:
In that case, EPA did not actually submit the ozone standard for SAB review, only the underlying criteria documents for SAB review.

[00:14:47] Speaker 01:
And what the court held in that case is under those circumstances, where EPA has already changed the rule twice on SAB

[00:14:54] Speaker 01:
on the basis of SAB comments under those circumstances it's harmless error that they didn't submit the final rule which reflected SAB's comments anyway.

[00:15:04] Speaker 01:
That's not the case here.

[00:15:06] Speaker 01:
Here we're talking about an utter failure to submit anything in connection with this rule to the EPA.

[00:15:14] Speaker 01:
We also have the McClellan Declaration.

[00:15:17] Speaker 01:
A 30-year veteran of the Science Advisory Board who also was chairman of the board's Science Advisory Clean Air Act Committee saying that there is, under the circumstances of this case, if this rule had been submitted to the SAB for peer review, there is a substantial likelihood that it would have been significantly changed.

[00:15:41] Speaker 01:
Okay.

[00:15:41] Speaker 01:
I think we'll hear from the government.

[00:15:45] Speaker 01:
Thank you, Your Honors.

[00:15:57] Speaker 00:
Your honors, I'd like to pick up on Judge Edwards' central relevance point and actually step back just a moment to take a look at the big picture here with respect to this rule.

[00:16:06] Speaker 00:
What petitioners are trying to do here is advance a collateral attack on that rule.

[00:16:12] Speaker 00:
And this is a rule which this Court upheld against all challenges in the prior Coalition for Responsible Regulation case.

[00:16:21] Speaker 00:
And in that case, there in and

[00:16:24] Speaker 00:
in those challenges.

[00:16:25] Speaker 00:
There were no disputes about the technology.

[00:16:28] Speaker 00:
It was actually, the rule itself was supported by the industry, the Global Association of Manufacturers intervened on EPA's behalf, and the Supreme Court has actually denied cert in that case.

[00:16:39] Speaker 00:
And now, in this case, petitioners are coming with this collateral challenge through the denial of the reconsideration

[00:16:46] Speaker 00:
to try to challenge that rule, which they can't do because they haven't challenged it.

[00:16:51] Speaker 00:
And not only that, but to challenge it on essentially grounds that are not of central relevance because they were never disputed and were upheld.

[00:16:59] Speaker 00:
That rule was upheld by this court previously.

[00:17:03] Speaker 05:
When you say that rule, which rule?

[00:17:04] Speaker 00:
This rule, I'm sorry, the car rule.

[00:17:06] Speaker 00:
The car rule.

[00:17:06] Speaker 00:
This rule, yes.

[00:17:07] Speaker 04:
Well, don't we still have to deal with standing first?

[00:17:13] Speaker 00:
Yes, you have to deal with the standing as well as the mootness issue, which I would like to... Well, we don't have to deal with both standing and mootness, do we?

[00:17:18] Speaker 00:
You can deal with one or the other.

[00:17:20] Speaker 00:
Either one would dispose of this case.

[00:17:22] Speaker 04:
So am I right?

[00:17:23] Speaker 04:
Am I reading this case is different from the truck rule because in California, the California rule with respect to cars is different, correct?

[00:17:34] Speaker 00:
Yes, it is a different rule, and it's already been.

[00:17:37] Speaker 04:
So if we didn't have NHTSA, we wouldn't have a redressability problem here, right?

[00:17:41] Speaker 00:
I'm sorry, say the last part.

[00:17:42] Speaker 04:
If we didn't have the NHTSA regulation, we wouldn't have a redressability problem here, right?

[00:17:47] Speaker 04:
Because under the California rule, the compliance with a lesser federal standard would be sufficient, right?

[00:17:59] Speaker 00:
I'm a little confused about the question because if you didn't have the, that's assuming that if we don't have the NHTSA standard, say APA changed its rule.

[00:18:06] Speaker 04:
No, no, forget NHTSA.

[00:18:07] Speaker 04:
Forget NHTSA.

[00:18:07] Speaker 04:
We didn't have a NHTSA rule.

[00:18:08] Speaker 04:
Right.

[00:18:08] Speaker 04:
All we had was the California rule.

[00:18:10] Speaker 00:
Correct.

[00:18:11] Speaker 04:
Okay, under the California rule, isn't it true that that's different for trucks and cars?

[00:18:16] Speaker 04:
That for cars, compliance with a federal rule is sufficient.

[00:18:21] Speaker 04:
So if the federal rule is less rigorous, it would still be sufficient.

[00:18:25] Speaker 00:
Correct.

[00:18:26] Speaker 04:
Okay.

[00:18:26] Speaker 04:
So your case for standing here rises and falls on the NHTSA rule, correct?

[00:18:33] Speaker 04:
That is for the redressability part of it.

[00:18:35] Speaker 00:
Largely, but I would like to point out to you that the previous California standard that was in place before the current California standard was actually more stringent.

[00:18:46] Speaker 04:
The previous one?

[00:18:47] Speaker 00:
Yes.

[00:18:48] Speaker 04:
But under the current rule in California,

[00:18:53] Speaker 04:
If the federal rule is made less rigorous, wouldn't compliance with the federal rule be sufficient?

[00:19:00] Speaker 00:
Yes, that would be sufficient.

[00:19:01] Speaker 00:
I'm sorry, Your Honor.

[00:19:02] Speaker 00:
I was only pointing that out to spin out the hypothetical if somehow EPA were to revise this rule to make it less stringent.

[00:19:09] Speaker 00:
What would happen in the interim?

[00:19:10] Speaker 00:
And I was just pointing out the fact that there was previously a more stringent California standard in place.

[00:19:15] Speaker 00:
But I'd also like to mention that this portion- Wait one second, sir.

[00:19:19] Speaker 03:
I'm sorry?

[00:19:19] Speaker 03:
When California backed off the more stringent standard,

[00:19:23] Speaker 03:
Did it adopt the federal standard as its own standard, or did it say, we'll do whatever the feds will do?

[00:19:29] Speaker 00:
Can I confer with my EPA counsel on that briefly?

[00:19:33] Speaker 02:
You can let them answer if you'd like.

[00:19:47] Speaker 02:
So that if the federal standard went away altogether, then you'd have the more stringent California standard.

[00:19:57] Speaker 04:
But if, right, but if the federal standard is replaced with a less rigorous federal standard, they could comply, compliance with that would be sufficient in California, correct?

[00:20:07] Speaker 00:
Yes, but those are actually, those are hypotheticals, Your Honor, that we shouldn't get into.

[00:20:12] Speaker 05:
You have a wobbly case on aggressibility.

[00:20:14] Speaker 05:
Tell us about it in a second.

[00:20:16] Speaker 00:
I'm sorry.

[00:20:17] Speaker 00:
Tell us about Nitsa.

[00:20:18] Speaker 05:
Nitsa on redressability.

[00:20:20] Speaker 05:
The argument on California, it seems to me, is iffy.

[00:20:25] Speaker 05:
Nitsa is a stronger argument, I think, and what is it?

[00:20:29] Speaker 00:
Yes, it's the same argument as in the truck roll-up, and it's a standard is still going to be in place because it hasn't been challenged at all.

[00:20:36] Speaker 00:
And so, again, compliance with those fuel economy standards is still going to result in the increased cost that petitioners are concerned about.

[00:20:42] Speaker 04:
And what about counsel's argument that in the preamble it says that these are integrated rules to be considered as a whole or something like that?

[00:20:49] Speaker 00:
Correct.

[00:20:50] Speaker 00:
And they're not correct in saying that.

[00:20:52] Speaker 00:
That's what it says.

[00:20:54] Speaker 00:
As the preamble set out, it sets forth a, yes, maybe integrated comprehensive program.

[00:21:00] Speaker 00:
Right.

[00:21:01] Speaker 00:
But again, they are separately issued, separately enforceable standards.

[00:21:04] Speaker 04:
Different statutes, right?

[00:21:06] Speaker 00:
Different statutes, yes.

[00:21:07] Speaker 00:
And because there's no challenge here to the NHTSA rule, that's going to remain in place, regardless of what happens to the EPA rule.

[00:21:15] Speaker 04:
And you're speaking for your client here on that one, right?

[00:21:17] Speaker 04:
Yes.

[00:21:19] Speaker 04:
All right.

[00:21:22] Speaker 04:
Anything else?

[00:21:23] Speaker 05:
Mootness.

[00:21:24] Speaker 04:
What?

[00:21:25] Speaker 05:
Mootness.

[00:21:27] Speaker 05:
Thank you.

[00:21:28] Speaker 00:
The mootness issue is fairly straightforward because this car rule deals with model years 2012 to 2016.

[00:21:37] Speaker 00:
And at the time we wrote our brief,

[00:21:40] Speaker 00:
2016 was not yet in manufacturing stages, but it is now.

[00:21:45] Speaker 00:
And so the mootness argument... How do we know that, by the way?

[00:21:48] Speaker 04:
I know you said that in your brief, or you said it somewhere.

[00:21:51] Speaker 04:
Where did you tell us that?

[00:21:53] Speaker 00:
It was in the brief.

[00:21:54] Speaker 00:
We explained that.

[00:21:55] Speaker 00:
I can get you a page site.

[00:21:57] Speaker 04:
No, but how do we know that?

[00:21:59] Speaker 04:
Is there something from the agency?

[00:22:00] Speaker 00:
I think it's pretty standard.

[00:22:01] Speaker 04:
I didn't see a site.

[00:22:03] Speaker 00:
Not from the agency in the record, no, because at that time, mootness wasn't an issue.

[00:22:07] Speaker 00:
I think it's fairly standard practice that the manufacturing year starts on January 2nd of the prior year for model year.

[00:22:12] Speaker 04:
How would this court know that?

[00:22:14] Speaker 04:
I'm sorry?

[00:22:14] Speaker 04:
How would this court know that?

[00:22:16] Speaker 00:
That's a good question because it's not on the record.

[00:22:19] Speaker 04:
Right, that's why I'm asking.

[00:22:20] Speaker 03:
The manufacturing year, does that mean?

[00:22:23] Speaker 00:
The manufacturing for the next model year starts in the previous year.

[00:22:28] Speaker 03:
So the 2016 vehicles are on the market in around September?

[00:22:32] Speaker 00:
Are being manufactured, yes, as of January 2nd.

[00:22:35] Speaker 03:
They're being manufactured now?

[00:22:36] Speaker 03:
So you're saying they're starting to be manufactured now?

[00:22:39] Speaker 00:
Yes, and will be on the market.

[00:22:43] Speaker 02:
They can be certified as 2016 models with people starting in January 2nd this year, so that's already the next.

[00:22:52] Speaker 04:
So in our brief, that wasn't the current state of the facts at that time, but we pointed out that that was going to happen.

[00:23:06] Speaker 02:
uh... it's a good question yes it's a different statutory provision why isn't this still within the exception for matters that escape review first of all that's not something petitioners argued in response but second of all again with

[00:23:32] Speaker 00:
When you look at these particular circumstances, I think that's what you would need to focus on in looking at that exception in terms of whether this is capable of repetition.

[00:23:42] Speaker 00:
Because this SAB review issue is very fact-intensive, and each case is going to be different with respect to whether there was formal review,

[00:23:51] Speaker 00:
and matters of central relevance.

[00:23:54] Speaker 03:
But just in asking whether the manufacturing cycle was such that the rules will escape review because review takes so long if the rule has had its effect.

[00:24:07] Speaker 03:
We don't need to look at the SAP issue for that.

[00:24:11] Speaker 00:
Correct.

[00:24:11] Speaker 00:
But again, this rule has been in place for now four years, five years.

[00:24:17] Speaker 00:
So it's not the typical case where something is so short lived.

[00:24:20] Speaker 00:
It's not able to be challenged.

[00:24:22] Speaker 03:
Why did it take so long?

[00:24:25] Speaker 00:
Petitioners filed their petition for reconsideration long after the rule was issued, and that's what's taken the time to work its way through.

[00:24:33] Speaker 03:
Wasn't there a 60 day limit on reconsideration?

[00:24:36] Speaker 00:
Yes, and they filed the reconsideration.

[00:24:38] Speaker 00:
EPA conducted the reconsideration process, and then that's when they filed this petition.

[00:24:43] Speaker 03:
So they filed within the 60 days, or did they not?

[00:24:47] Speaker 00:
Yes.

[00:24:48] Speaker 00:
Oh, I'm sorry.

[00:24:50] Speaker 00:
Oh, yes.

[00:24:53] Speaker 00:
Yes, I'm sorry.

[00:24:54] Speaker 03:
And did the EPA grant?

[00:24:58] Speaker 03:
I mean, they indulged the petition by answering it.

[00:25:01] Speaker 02:
Right.

[00:25:02] Speaker 03:
Did they construe it as a petition for a new rulemaking?

[00:25:07] Speaker 02:
Yes.

[00:25:10] Speaker 03:
So, procedure one being that it was out of time.

[00:25:13] Speaker 03:
Yes.

[00:25:16] Speaker 04:
Okay.

[00:25:17] Speaker 04:
Anything?

[00:25:18] Speaker 04:
No.

[00:25:18] Speaker 04:
Anything else?

[00:25:19] Speaker 04:
No.

[00:25:20] Speaker 04:
Okay.

[00:25:20] Speaker 00:
I don't have anything further, Your Honors.

[00:25:22] Speaker 00:
Thank you.

[00:25:22] Speaker 04:
Thank you.

[00:25:23] Speaker 04:
Did counsel have any time left?

[00:25:25] Speaker 04:
Okay, you can take two minutes.

[00:25:29] Speaker 01:
Thank you, Your Honor.

[00:25:31] Speaker 01:
Very briefly, with regard to the model years, as we discussed in connection with the truck rule, these rules will not magically disappear at the end of model year 2016.

[00:25:43] Speaker 01:
They form the baseline, if you will, the springboard for future more stringent

[00:25:50] Speaker 01:
And so, these rules, for all intents and purposes, continue as a baseline below which

[00:26:03] Speaker 01:
indicated that it will not go, but only make the rules more stringent for future model years.

[00:26:14] Speaker 01:
With regard to the timing of the petition for reconsideration, I think it's important to note that

[00:26:23] Speaker 01:
Here, when the rule was first proposed, there was no indication whatsoever that the EPA would fail to comply with the Science Advisory Board Statute.

[00:26:34] Speaker 01:
What the government would have commenters do during the comment period is essentially list for EPA each and every rulemaking process, procedure, and requirement that EPA needs to go through and then instruct EPA during the comment period not to violate any of those.

[00:26:56] Speaker 01:
That would be absurd.

[00:26:58] Speaker 01:
The first time when the petitioners suspected that SAB review wasn't obtained was when the final rule was published with no mention of SAB review in the preamble.

[00:27:14] Speaker 01:
We then submitted a Freedom of Information Act request.

[00:27:18] Speaker 01:
When that came back in the negative saying that SAB review was not obtained,

[00:27:24] Speaker 01:
Then we filed a timely administrative petition, which was the first time that it was practicable for us to file that administrative petition.

[00:27:35] Speaker 01:
I see the red light is on, and so I thank Your Honor.

[00:27:38] Speaker 04:
During the rulemaking, the agency, during the notice and comment, it did list other agencies it would discuss.

[00:27:49] Speaker 04:
It just didn't mention the SCB, right?

[00:27:54] Speaker 01:
that there was about to be a problem?

[00:27:56] Speaker 01:
No, Your Honor, because the history of EPA rulemaking is that it has consistently submitted rules to the SAB for review in accordance with this statute since 1979.

[00:28:13] Speaker 01:
And with this crop of greenhouse gas emission standards, starting with the endangerment finding, but that's come and gone now.

[00:28:22] Speaker 01:
But this particular proposed rule came very much on the heels of the endangerment finding.

[00:28:29] Speaker 01:
And there was no indication that for greenhouse gas emission standards, for reasons that are still not clear to the petitioners, EPA would fail to comply with the mandatory SAB duty.

[00:28:43] Speaker 01:
Okay, thank you very much.

[00:28:45] Speaker 01:
Thank you.