[00:00:02] Speaker 00: Case number 13-1283 at L. Dalton Chucking Inc. [00:00:07] Speaker 00: at L Petitioners vs. Environmental Protection Agency and Gina McCarthy and her official capacity as administrator of the United States Environmental Protection Agency. [00:00:16] Speaker 00: Mr. Hattie Antich for the petitioners, Mr. Levin for the respondent, and Mr. Hirsch for the intervener. [00:00:24] Speaker 05: Thank you. [00:00:25] Speaker 05: Good morning. [00:00:26] Speaker 05: Theodore Hajjantich for the petitioners. [00:00:29] Speaker 05: I reserve two minutes for rebuttal. [00:00:31] Speaker 05: May it please this court. [00:00:34] Speaker 05: The threshold issue is venue. [00:00:36] Speaker 05: And all parties agree that the determination of whether any particular action by EPA under the Clean Air Act is of national applicability on the one hand, or only of regional and local applicability on the other hand, hinges on the face of the regulatory action itself. [00:00:57] Speaker 05: Here, EPA made a decision to allow California to enforce its [00:01:04] Speaker 05: standards in the state of California as the face of the waiver grant states on page 58-121 of the Federal Register notice, quote, [00:01:15] Speaker 05: The only decision taken by EPA in the authorization proceeding is the decision that permits the state of California to adopt and enforce its state regulations." [00:01:26] Speaker 05: If that is the only decision taken by the state of California, that decision only by EPA, [00:01:34] Speaker 05: That decision applies only in California. [00:01:37] Speaker 05: Consequently, it is of local or regional applicability and venue is appropriate in the Ninth Circuit. [00:01:45] Speaker 05: Now, during the waiver process, EPA had the opportunity to try to bring the jury [00:01:54] Speaker 05: court into the DC Circuit. [00:01:57] Speaker 05: Had it made a finding that this locally or regionally applicable decision actually has nationwide scope in effect, but EPA didn't make that [00:02:09] Speaker 05: And that finding is belied by the face of the waiver grant, the language of which I just read. [00:02:21] Speaker 05: Consequently, this court should transfer the case to the court. [00:02:25] Speaker 05: the Ninth Circuit, which has the appropriate venue here. [00:02:30] Speaker 05: If this court decides on the merits, the issue is relatively straightforward. [00:02:38] Speaker 05: It has to do with the scope and the content of the needs test. [00:02:43] Speaker 05: The operative language is the term such California standards. [00:02:49] Speaker 05: Now, for the better part of three decades, this court and the Supreme Court has determined that the term standards under the Clean Air Act is a term of art, meaning quantitative emission levels. [00:03:02] Speaker 05: And as Justice Scalia once observed, under the Clean Air Act, a standard is a standard and not something else. [00:03:11] Speaker 05: So the term in the Act means such California quantitative admission levels and not the California program as a whole. [00:03:25] Speaker 05: Now, why is the term standards set forth in the plural as opposed to the singular? [00:03:30] Speaker 05: Well, as this Court has observed, [00:03:32] Speaker 05: From time to time, California is required to apply for waivers from federal preemption whenever it wishes to enforce a new set of California mobile source emission standards. [00:03:46] Speaker 05: And so consequently, from time to time when EPA receives a waiver application, it must determine whether California has a compelling and extraordinary need for the standards set forth in the waiver application. [00:04:02] Speaker 05: And I think it's important to note that the waiver applications themselves usually do not include only one quantitative emission limit, but there are several quantitative emission limits. [00:04:16] Speaker 05: In other words, several standards for each waiver application. [00:04:20] Speaker 05: And this case is no example here. [00:04:22] Speaker 04: Are you saying that your position is that each state standard [00:04:26] Speaker 04: Is that basically what you're saying? [00:04:27] Speaker 04: That the second use of such California standards means each such California standard? [00:04:33] Speaker 04: Yes. [00:04:33] Speaker 04: Is that the meaning that you're attributing to little double I? [00:04:38] Speaker 04: Yes, Your Honor, it is. [00:04:39] Speaker 04: So why didn't Congress use the words each such California standard or each California standard? [00:04:45] Speaker 05: Because, Your Honor, [00:04:50] Speaker 05: From time to time, EPA is required to determine whether California needs the standards embedded in the waiver application. [00:05:01] Speaker 05: That's fine, but why didn't they say each, each? [00:05:03] Speaker 05: Well, because waiver applications generally have more than one quantitative standard. [00:05:10] Speaker 05: A waiver application such as this one contains standards for nitrogen oxides on the one hand. [00:05:18] Speaker 04: Why didn't they say each standard in the waiver? [00:05:20] Speaker 04: Waiver application. [00:05:22] Speaker 04: That is what they said in 1977. [00:05:24] Speaker 04: They said in 1977 they used if-each-state standard. [00:05:28] Speaker 04: This is what they're talking about as at least a stringent. [00:05:31] Speaker 04: And that's stated on page 49 of your brief. [00:05:34] Speaker 04: So it's clear Congress knew how to say what you want to say, but they didn't say that. [00:05:40] Speaker 04: And then they also used the words in the aggregate. [00:05:44] Speaker 05: Well, Your Honor, the term in the aggregate modifies the protectiveness test, but it does not modify the separate and distinct needs test. [00:05:53] Speaker 05: Well, how do we know that? [00:05:54] Speaker 04: It says, it uses the words such standards in double I, which seems to be a reference back to the standards which have been modified by in the aggregate in A. [00:06:10] Speaker 05: I don't believe so, Your Honor. [00:06:13] Speaker 05: The term in the aggregate modifies the immediately following noun or phrase. [00:06:20] Speaker 04: Well, that's wrong. [00:06:21] Speaker 04: You're using the doctrine of the prior antecedent, right? [00:06:24] Speaker 04: Yes, Your Honor. [00:06:25] Speaker 04: Well, you have it actually backwards. [00:06:27] Speaker 04: That doctrine says, I'm reading to you from the Barnhart case, should ordinarily be read as modifying only the noun or phrase that it immediately follows. [00:06:38] Speaker 04: Not that immediately follows it, but that it immediately follows. [00:06:43] Speaker 04: That's the standard rule. [00:06:45] Speaker 04: And the phrase that it immediately follows is California standards. [00:06:53] Speaker 04: If we follow the rule that you're asking us to follow, we have to rule against you. [00:06:59] Speaker 05: Your Honor, I don't believe that that's entirely accurate. [00:07:03] Speaker 05: That particular case may say that, but the general rule for a statutory modifier is that it modifies the immediately preceding or succeeding annal or phrase. [00:07:16] Speaker 07: That is an absolute rule. [00:07:18] Speaker 07: This is all contextual. [00:07:21] Speaker 07: Gad are a norm, but it's not an absolute rule. [00:07:25] Speaker 07: And what standard are we supposed to be applying to this interpretation? [00:07:31] Speaker 05: I think the standard that should be applied here is the plain meaning of the language used. [00:07:39] Speaker 05: Had Congress intended that the term such California standards mean the entire program that California has, it could have... Is there any construction of this language that is entitled to defer it? [00:07:53] Speaker 05: I don't believe that there is, Your Honor, because the plain meaning of the language use standards refers to quantitative emission limitations. [00:08:04] Speaker 05: And there's nothing in the statute that indicates that where there are quantitative emission limitations, EPA should determine whether the entire program is necessary. [00:08:14] Speaker 04: What if we thought the use of the plural standards and the use of the phrase in the aggregate [00:08:20] Speaker 04: rendered the section ambiguous, then what would we do? [00:08:25] Speaker 05: If your honors came to that conclusion, then the briefing has an extensive analysis of the legislative history, which should be reviewed for ambiguous statutory analysis. [00:08:37] Speaker 04: There's this word, this one word we always use here, chevron. [00:08:41] Speaker 04: Are you telling me that chevron doesn't apply to the interpretation here? [00:08:45] Speaker 05: Chevron would apply only if the EPA's [00:08:54] Speaker 05: analysis was consistent with the intent of Congress. [00:09:00] Speaker 05: And here the legislative history shows, we have probably 15 pages devoted in the opening brief to the legislative history, shows that Congress did not intend for the term such California standards. [00:09:13] Speaker 07: If the language is in fact ambiguous, or we think it's ambiguous, which is just as good, [00:09:24] Speaker 07: what weight they want to give legislative history, which is inherently not the law. [00:09:31] Speaker 05: I don't believe that's true, Your Honor, under the most recent Supreme... Your Honor, Counselor, you keep telling us what you believe. [00:09:36] Speaker 07: Yes. [00:09:37] Speaker 07: We would like to know what the law is on these things. [00:09:40] Speaker 05: Yes, Your Honor. [00:09:41] Speaker 07: Any number of times already you've told us what you believe. [00:09:44] Speaker 07: And if EPA wanted to set [00:09:48] Speaker 07: Legislative history entirely aside, that would be entirely consistent with what? [00:09:54] Speaker 05: No, that's not true, Your Honor. [00:09:56] Speaker 05: It's not in life. [00:09:57] Speaker 07: You mean all these years I haven't been sitting [00:10:00] Speaker 05: Especially in light of the 2015 decisions by the US Supreme Court in King v. Burwell and Michigan v. EPA, where clearly the Supreme Court stated that if the agency's interpretation is inconsistent with the statutory intent, then it cannot stand. [00:10:19] Speaker 07: The statutory intent in the first instance is taken from the language of the statute. [00:10:23] Speaker 07: Yes. [00:10:23] Speaker 07: But the very existence of Chevron presumes that there are [00:10:28] Speaker 07: ambiguity that are not resolved by the clear language of the statute. [00:10:33] Speaker 07: Now, there is language in the cases of applying Chevron that says to use the ordinary tool of the statute of instruction, but that doesn't compel any particular piecing out of legislative history in the way that you want it. [00:10:47] Speaker 07: Aren't you stuck with a differential standard if we get to the point that's true in the statute? [00:10:53] Speaker 05: No, we're not, Your Honor, because under those two Supreme Court cases, where there is ambiguity, the key is what is the legislative intent. [00:11:05] Speaker 05: And if it's demonstrably shown, according to the legislative history, that the legislative intent is contrary to the interpretation of the government, then under those two recent Supreme Court cases, no deference should be given to the government interpretation. [00:11:20] Speaker 04: Which page in your brief has the best legislative history that you're relying on? [00:11:25] Speaker 05: Your Honor, just one moment. [00:11:32] Speaker 05: We discuss the legislative history extensively on pages. [00:11:45] Speaker 05: 45 through 53 of the opening brief. [00:11:49] Speaker 04: And which sentence would you like to read to me that establishes that it unambiguously means that we only look at each individual standard? [00:12:00] Speaker 05: Your Honor, I'm not sure if I can call out one particular sentence, but what these dozen or so pages do is trace the history of the act of Section 209 from 1967. [00:12:15] Speaker 04: I've read the pages. [00:12:16] Speaker 04: What I'm missing is any sentence in the legislative history that says that a statute means that you have to evaluate standard by standard [00:12:28] Speaker 04: and that we don't mean to use the words in the aggregate to apply to the whole program for the second double I such standard. [00:12:36] Speaker 04: That's what I couldn't find. [00:12:39] Speaker 04: Is there something like that? [00:12:42] Speaker 05: Yes, Your Honor. [00:12:44] Speaker 05: I'm sorry, I'm not able to pinpoint one specific sentence. [00:12:47] Speaker 04: I'll give you two or three. [00:12:48] Speaker 04: It's OK. [00:12:49] Speaker 04: But I need something. [00:12:50] Speaker 04: We need to overcome the ambiguity of the language of the statute. [00:12:54] Speaker 04: We need an awfully clear legislative history, so clear that no other reading would be permissible. [00:13:00] Speaker 04: That's what Chevron tells us. [00:13:02] Speaker 04: So I'm looking for something that would make the EPA's reading impermissible. [00:13:10] Speaker 05: I think the UPA's reading is impermissible because of the high bar set for the needs test. [00:13:16] Speaker 05: There has to be a compelling and extraordinary need for the California standards for which waiver is applied. [00:13:23] Speaker 04: You're not even referring to the language of the statute, not to the legislative history, right? [00:13:27] Speaker 04: Yes, Your Honor. [00:13:28] Speaker 04: Can I ask you about Art Ba? [00:13:29] Speaker 04: How do you pronounce it? [00:13:30] Speaker 04: Art Ba? [00:13:31] Speaker 04: art uh... about their about standing uh... question i have is uh... our case uh... chamber of commerce in the spring courts case summers requires the meaning of a member of an association [00:13:48] Speaker 04: and then proof that that member has standing. [00:13:54] Speaker 04: Now, I'm right, am I not, that no member has been named in the affidavits as being injured, is that right? [00:14:01] Speaker 05: Your Honor, with regard to the ARCTA-specific issues that were raised, I've been instructed by ARCTA counsel that on those issues, I'm not authorized to speak for ARCTA, even though the time has been ceded to me. [00:14:17] Speaker 05: So we're just art just stands on the briefing with regard to those to those issues. [00:14:23] Speaker 05: Okay, fair enough. [00:14:24] Speaker 05: Now, your honors, I see that I have one minute left and I would like to reserve that one minute for rebuttal. [00:14:29] Speaker 05: Thank you. [00:14:30] Speaker 05: Thank you. [00:14:50] Speaker 03: Good morning, Your Honors, and may it please the Court, my name is Joshua Levin. [00:14:54] Speaker 03: On behalf of the U.S. [00:14:55] Speaker 03: EPA, I'm joined today by my EPA Counsel, Winnifred Okoya, and by California Counsel, Rosh Hirst. [00:15:05] Speaker 03: This is an unusual case, your honors, as the court's already noted. [00:15:09] Speaker 03: Petitioners just chose to sue EPA in this court to challenge EPA's waiver decision, but they've gone to great lengths, extraordinary lengths, to suggest that the court lacks venue over their case. [00:15:20] Speaker 07: It is rather strange, but perhaps since the issue's been raised, you want to tell us why we do have venue. [00:15:27] Speaker 07: in the face of the challenge. [00:15:29] Speaker 07: Yes, Your Honor. [00:15:30] Speaker 07: I would say it certainly attracts me as odd that somebody would bring an action and then challenge the venue for what they brought it in. [00:15:35] Speaker 04: Well, I take it as protective. [00:15:36] Speaker 04: It seems pretty. [00:15:39] Speaker 03: Yes, they don't know how we're going to rule. [00:15:42] Speaker 03: We certainly acknowledge that and have not challenged it. [00:15:44] Speaker 07: In any event, why do we have a venue here? [00:15:48] Speaker 03: The EPA has identified two separate and equally strong bases for venue. [00:15:54] Speaker 03: The principal threshold one is the national applicability of its decision, not because it said so in its rule, but because the workings of Section 7543E of the Air Act [00:16:06] Speaker 03: and the opt-in provision provide that national applicability inherently. [00:16:11] Speaker 03: Other states can adopt this regulation once it's approved and EPA has no further opportunity to review. [00:16:25] Speaker 07: This rule by its terms... [00:16:30] Speaker 03: Judge Santel, the fact that this may become the national norm for other states non-roading. [00:16:39] Speaker 03: It may, it may not. [00:16:40] Speaker 03: May or may not. [00:16:41] Speaker 07: It may not, but right now it's not. [00:16:49] Speaker 03: Well, it's important to stress, Your Honor, that unlike California, which has the authority expressly in 7543E, EPA does not have corresponding statutory authority to enact its own rules for in-use, non-road vehicles. [00:17:06] Speaker 03: California is the only jurisdiction in the country that has that authority. [00:17:11] Speaker 07: It sounds pretty local, but the only jurisdiction in the country [00:17:14] Speaker 03: Well, nonetheless, these rules can be adopted elsewhere without any further EPA review. [00:17:20] Speaker 03: And we believe that the statute, for that reason, makes these nationally applicable actions. [00:17:24] Speaker 04: But they're not applicable now, right? [00:17:26] Speaker 04: I mean, even if we upheld California, they wouldn't be nationally applicable, would they? [00:17:32] Speaker 04: Each state has to opt in, right? [00:17:34] Speaker 04: Each state has to opt in and has not yet done so. [00:17:37] Speaker 04: So at this moment, it's not really nationally applicable. [00:17:39] Speaker 04: Is that fair to say? [00:17:41] Speaker 03: It's fair to say that this is the correct court to review regulations with national impact. [00:17:49] Speaker 04: Well, national impact. [00:17:51] Speaker 04: Now we're on the third sentence, right? [00:17:54] Speaker 04: We'll get to that in a moment. [00:17:55] Speaker 04: Isn't the difference between nationally applicable and, I'm just trying to get the words here, scope and effect, that difference, difference between impact and applicability? [00:18:09] Speaker 03: The court has recognized that there's somewhat elusive and imprecise distinction between those two concepts. [00:18:19] Speaker 04: One uses the word applicable, and one uses scope and effect. [00:18:23] Speaker 04: So it does sound like the first one has sort of a legal question. [00:18:28] Speaker 04: Does it apply? [00:18:28] Speaker 04: And the second is a impact, scope and effect. [00:18:34] Speaker 04: On the applicable one, you said it is nationally applicable. [00:18:40] Speaker 04: In the history of the California waiver, how many states have ever adopted the California waiver? [00:18:46] Speaker 03: In my understanding, Your Honor, I think the hard counsel can address it more directly. [00:18:49] Speaker 03: My understanding is with regard to the non-road provision, there's been upwards of 30 over the course of... You mean road provisions? [00:18:57] Speaker 03: Road provisions? [00:18:57] Speaker 03: Road provisions upwards of 50. [00:18:59] Speaker 03: 50 states have adopted. [00:19:01] Speaker 03: Excuse me, I'm sorry. [00:19:03] Speaker 03: The number of waiver decisions. [00:19:07] Speaker 04: The website, the best I could find on the EPA website is that as of 2007, only 15 states had adopted the on-road [00:19:19] Speaker 04: I'm going to ask you a question. [00:19:22] Speaker 03: Is there a higher number that I should be looking for in the number of states that have adopted? [00:19:35] Speaker 03: There are a lot. [00:19:36] Speaker 04: Do you have any idea whether even the majority of the states have adopted California standards and a particular California standard? [00:19:43] Speaker 03: I don't, Your Honor. [00:19:43] Speaker 03: I know that the litigation has focused on the low emissions vehicles challenges that have been raised in the First and Second Circuits, and we have briefed those issues in New York State and Massachusetts. [00:19:55] Speaker 03: perhaps Vermont as well. [00:19:57] Speaker 03: So it's been adopted in certain parts of the country. [00:20:00] Speaker 03: I don't know at this time. [00:20:01] Speaker 03: I'm happy to provide the court with information on the number of states. [00:20:04] Speaker 03: But getting to the court's point about the national applicability of this decision, separate and apart from the opt-in provision, which we think is the most important provision for the court to focus on, the regulation by its terms does govern out-of-state fleets that operate in California. [00:20:23] Speaker 07: They operate in California? [00:20:27] Speaker 07: anything but the local. [00:20:28] Speaker 07: Well, if they operate in one state, they're covered. [00:20:31] Speaker 07: If they operate in any of the other 49, presumably they're not covered. [00:20:36] Speaker 07: How can it be a national applicability? [00:20:40] Speaker 03: If a business is in the practice of providing off-road vehicles to California, and it knows that it's going to continue to do so, and it happens to be in a state far afield from the Ninth Circuit, [00:20:56] Speaker 03: these regulations will govern what it does to those vehicles. [00:21:00] Speaker 07: Uh, as we've known, you're back to what the chief judge suggested. [00:21:03] Speaker 07: You're talking about the impact, which if it's anything, you're still in effect and not applicable. [00:21:09] Speaker 03: Yes. [00:21:10] Speaker 07: So don't you want to leave applicability? [00:21:13] Speaker 07: You said you had more than one basis. [00:21:14] Speaker 03: Well, you're not doing a little bit of this. [00:21:16] Speaker 07: You want to try the other one? [00:21:19] Speaker 03: We've identified both those elements as grounds for the national applicability elements. [00:21:26] Speaker 06: Where's the finding on determination of nationwide scope or effect? [00:21:31] Speaker 03: What EPA issued was a determination of national applicability. [00:21:37] Speaker 03: We acknowledge that those are the words that were used. [00:21:41] Speaker 03: Our point to the Court, respectfully, is that it's Congress's intent to honor the plain intentions of EPA in its determination. [00:21:49] Speaker 06: Did EPA say anything else with regard to that purported determination to suggest that they misspoke in the determination? [00:21:58] Speaker 03: uh... no your honor what he did here is use a phrase that is used historically frequently including in cases that have come before this court in which this court is affirmed why didn't they use the phrase that's used in the statute [00:22:11] Speaker 03: Your Honor, it's a fair question. [00:22:15] Speaker 03: It's astounding, isn't it? [00:22:18] Speaker 03: It's a fair question. [00:22:19] Speaker 03: I think that what EPA would say and what I say in its defense is that there are vagaries of what we align those draws with. [00:22:26] Speaker 04: But the statute specifically says if such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes [00:22:39] Speaker 04: that such action is based on such a determination. [00:22:43] Speaker 04: I mean, is this like somebody in the EPA misread the statute and used the first sentence rather than the third sentence? [00:22:50] Speaker 03: It's probably the case that old habits have died hard and the EPA had not been challenged previously on the phraseology used in this decision. [00:22:58] Speaker 07: They didn't have a copy of the statute. [00:23:01] Speaker 03: Your Honor, I'm not here to say that the language of the statute was observed to the letter. [00:23:06] Speaker 03: I am asking the Court to recognize the DPS intention. [00:23:09] Speaker 07: Well, they observed, period. [00:23:10] Speaker 07: It's not, well, nobody's talking about what to the letter, not to the letter. [00:23:12] Speaker 07: They did not make the statute, the language, instead the finding within the statutory language, did they? [00:23:19] Speaker 03: They made a determination of nationwide applicability. [00:23:23] Speaker 07: That's a yes or a no. [00:23:24] Speaker 07: There's language in the statute about scope and fact. [00:23:28] Speaker 07: If that finding would have been [00:23:34] Speaker 06: Did they cite three, sub-paragraph three? [00:23:39] Speaker 03: Your Honor, I don't know that for sure. [00:23:41] Speaker 03: I think the record would be clear on that point. [00:23:43] Speaker 03: And I will acknowledge that if the Court decides to focus on the need for literalism in that language, then... We don't like following the law. [00:23:52] Speaker 06: Yeah, it isn't literalism. [00:23:54] Speaker 06: It isn't metaphysical. [00:23:55] Speaker 06: The two terms are different. [00:23:57] Speaker 06: And you can't convince us, I don't think, that they aren't different. [00:24:01] Speaker 06: They are different in what they say. [00:24:03] Speaker 06: And so to make the determination you want, you have to pick the correct term. [00:24:10] Speaker 06: And they didn't, which is quite astonishing. [00:24:13] Speaker 06: I'm wondering, did they say anything else anywhere to suggest this was simply a mistake? [00:24:18] Speaker 06: Did they cite three? [00:24:19] Speaker 06: Did they say in some other document that we've made the correct determinant? [00:24:23] Speaker 06: Is there anything other than this misstatement? [00:24:27] Speaker 03: Uh, your honor, I don't know as I stand here, but what I would urge is that the court focus on the significance of this California decision and its impact on states nationwide. [00:24:38] Speaker 03: We can't make that determination. [00:24:40] Speaker 03: That that impact exists by operational law under 209e2b I'm I'm urging the court to look at the national applicability first and foremost, which is the first issue we raised I'm sorry [00:25:03] Speaker 03: We would not agree, Your Honor. [00:25:05] Speaker 03: We believe that the intent of Congress is to give EPA the opportunity to designate and publish. [00:25:09] Speaker 07: The intent of Congress is to be defined in the first instance. [00:25:12] Speaker 07: In fact, in the final instance, really, by the words in the statute. [00:25:16] Speaker 07: Congress does not have an ethereal intent. [00:25:20] Speaker 07: Congress has the intended intent. [00:25:21] Speaker 07: It's the expressed intent of Congress, which we're concerned. [00:25:24] Speaker 07: Congress gave explicit instruction as to what the final [00:25:34] Speaker 03: Very well, Your Honor. [00:25:37] Speaker 06: Is there any case you can cite where a court, our court or any court, has accepted the proposition that you're now stating that a determination under subparagraph three can be stated incorrectly and we still accept it? [00:25:52] Speaker 03: Your Honor, I don't think that the venue question, the interpretation of prong three has come up in this court. [00:25:57] Speaker 03: I don't know about the other courts. [00:25:58] Speaker 06: Has anyone suggested it, even in passing? [00:26:00] Speaker 06: Has anyone ever said, if the agency doesn't say national scope in effect and they say applicability, that that's good enough, we understand what they're saying? [00:26:10] Speaker 06: Your Honor, to my knowledge, no. [00:26:12] Speaker 06: So in other words, is there any way to send this case back to the agency for them to explain what they've done? [00:26:18] Speaker 06: Or are they stuck with, you didn't use the right language? [00:26:22] Speaker 06: uh... and is there any hope you have well of course that is an answer sometimes when we don't understand what the agency means to say but we've got to have some place to look for the confusion to say we're confused and we ought to let the agency explain what they're meant to say is there any hope because the language is wrong [00:26:43] Speaker 03: The language is wrong, the intent is clear. [00:26:45] Speaker 03: How do we know that? [00:26:47] Speaker 03: There is a published determination, Your Honor. [00:26:49] Speaker 03: The statute says EPA must publish... So the next you have is that they published something. [00:26:57] Speaker 06: And so we ought to know because they published something, it's a determination under subsection three. [00:27:03] Speaker 06: That's the best shot you have to show us there's some confusion. [00:27:07] Speaker 06: You're right. [00:27:08] Speaker 06: I regret that I don't have... I'm really not trying to shoot you down. [00:27:11] Speaker 06: I'm trying to understand. [00:27:13] Speaker 06: Do you have anything that would cause us to think, well, send it back because we're confused about what they're meaning to say? [00:27:21] Speaker 06: Other than that they publish, EPA publishes a lot of stuff. [00:27:25] Speaker 03: If the court determines that it does not have, it cannot determine its venue based on this record, the recourse would be to give EPA an opportunity to explain itself. [00:27:35] Speaker 03: It certainly would not be to transfer a venue. [00:27:37] Speaker 07: Why should it not be to transfer a venue? [00:27:40] Speaker 07: When we have a clean vehicle to have the case decided by a court that would have venue, why would we send it back and delay everybody [00:27:53] Speaker 07: cost everybody more money to make a determination on something we can determine. [00:27:58] Speaker 07: Now we've seen it. [00:27:59] Speaker 07: The worst kind, we're not saying we're going to throw this rule out. [00:28:02] Speaker 07: We're going to cut California off, let it float out to sea. [00:28:04] Speaker 07: All we would be doing is sending the case to a different circuit. [00:28:08] Speaker 07: Why are you insisting that we can send it back? [00:28:12] Speaker 06: You could say I didn't, Judge Edwards did. [00:28:16] Speaker 06: But I don't know, you've got a real problem here. [00:28:19] Speaker 03: Well, EPA believes strongly that this court is the proper court in the United States to review. [00:28:25] Speaker 06: Where does EPA say that? [00:28:27] Speaker 06: Not you, where did they say that? [00:28:29] Speaker 04: No, EPA does say that. [00:28:30] Speaker 04: EPA does have a finding that judicial review may be sought only in the U.S. [00:28:35] Speaker 04: Court of Appeals for the D.C. [00:28:36] Speaker 04: Circuit. [00:28:37] Speaker 04: But that's not the finding. [00:28:39] Speaker 07: That's like saying I'd like it to be heard, you know, in the Supreme Court. [00:28:46] Speaker 03: To transfer this case to the Ninth Circuit would be literally unprecedented and would create a situation where you have two different courts of appeals evaluating [00:28:58] Speaker 03: EPA decisions under the identical section of the Clean Air Act. [00:29:03] Speaker 07: It's not remotely unprecedented to have to decide which of the two [00:29:20] Speaker 03: In this area of the statute, Your Honor, respectfully, it would be the first time that we'd be giving another court of appeals the opportunity to opine on a California waiver decision, where at least it's arguable, respectfully, that EPA's intention was to have it identified as a determination of nation-wide scope of effect. [00:29:40] Speaker 04: So just as a question of litigation strategy, even if the people in the EPA couldn't read the statute, [00:29:46] Speaker 04: People in the Justice Department can read the statute, and you knew at some point that this was going to be a problem, not you personally. [00:29:54] Speaker 04: But once the challenge got raised, once the motion of transfer, once the problem arose in the Ninth Circuit, I'm not sure there was anything barring the EPA from [00:30:06] Speaker 04: requesting a remand. [00:30:08] Speaker 04: Or even making another finding. [00:30:10] Speaker 04: Right. [00:30:10] Speaker 04: Because it only goes to the venue question. [00:30:12] Speaker 04: It doesn't go to the substance of the waiver question. [00:30:15] Speaker 04: Why did the government not fix this problem? [00:30:19] Speaker 04: We are now at the oral argument in the Court of Appeals after the case, in this Court of Appeals. [00:30:25] Speaker 04: The case began in the Ninth Circuit, came over here. [00:30:28] Speaker 04: They held their case. [00:30:30] Speaker 04: It was brought in both circuits. [00:30:32] Speaker 04: Why, why [00:30:34] Speaker 04: Is there something about the statute that would have barred you from fixing this a lot earlier? [00:30:40] Speaker 03: No, Your Honor, and yet the Department of Justice did not perceive this to be the problem that courts identified, given the national applicability problem that I've already addressed at some point. [00:30:50] Speaker 07: Did you not read the brief of the other party? [00:30:52] Speaker 03: They identified it as being a problem. [00:30:55] Speaker 07: I don't understand the statement. [00:30:58] Speaker 07: We didn't understand it to be a problem. [00:31:00] Speaker 03: Well, we recognize the argument, Mr. Honor, but given the national applicability prong... Well, you had the statute that gives the scope and effect language. [00:31:08] Speaker 07: You had the APA decision that doesn't use the scope and effect language. [00:31:17] Speaker 03: We believe this is an issue the court need not confront. [00:31:21] Speaker 03: If it determines, as we believe it should, that this is a nationally applicable action, the question of whether the wrong language is a fatal defect is an issue the court need not address if the rules think there's value on other grounds. [00:31:38] Speaker 04: Is there some reason that [00:31:40] Speaker 04: You couldn't argue, in the brief you argue both ways. [00:31:43] Speaker 04: You argue it's national applicable and if it's not, even if it's not, it's scope and effect. [00:31:49] Speaker 04: Was there some reason that I'm just not seeing as to why this, you couldn't have made, the agency couldn't have said the same thing? [00:31:59] Speaker 04: Is there some reason the agency couldn't have said the same thing that you're now arguing in your brief? [00:32:05] Speaker 04: That is, we think this is nationally applicable, although what the agency thinks about nationally applicable is not relevant under the statute. [00:32:12] Speaker 04: But even if not, we think the scope and effect, is there some inconsistency between national applicability and scope and effect? [00:32:20] Speaker 03: Now there are actions, Your Honor, where EPA has characterized or certainly defended actions in briefs as being both, where there's some ambiguity about whether it fits into one box or another. [00:32:32] Speaker 03: EPA has said that that ambiguity does exist from time to time. [00:32:36] Speaker 03: It's not a binary choice. [00:32:39] Speaker 03: The agency has acted in a manner here consistent with its past practice, something that's not been challenged. [00:32:49] Speaker 03: This case has, for better or worse, highlighted the importance to EPA of using the exact phrasing. [00:32:55] Speaker 03: I dare say that it's important that EPA gets the message that this court is delivering. [00:32:59] Speaker 03: But in terms of its practice in this case, it's fully consistent with the way it's operated in cases that have not focused on this and where venue from this court has not been challenged. [00:33:11] Speaker 06: Wait, wait, wait. [00:33:12] Speaker 04: Those are all cases where it wasn't decided, you mean, where the issue didn't come up? [00:33:15] Speaker 04: That's right, yeah. [00:33:16] Speaker 06: Well, wait, I asked you a minute ago, are there cases in which the agency has meant to invoke subsection three but didn't use the correct language? [00:33:29] Speaker 06: and we essentially accepted it, even though we didn't discuss it? [00:33:33] Speaker 03: Yes, Your Honor. [00:33:34] Speaker 03: I would refer the Court to the American Trucking Association case, which also involves in-use, non-road fleets, where the Court affirmed the reasonableness of EPA's decision, and the underlying record indicates that there, again, the nationally applicable language was used by EPA [00:33:52] Speaker 06: Was it a decision under subsection three? [00:33:55] Speaker 03: Exactly the same subsection of the statute. [00:33:57] Speaker 03: There was no venue challenge. [00:33:58] Speaker 03: There was no venue challenge. [00:34:00] Speaker 03: Even on jurisdictional statutes, if we have not considered the question, it's not binding first. [00:34:05] Speaker 03: Venue is certainly waivable. [00:34:07] Speaker 03: We recognize that it's not been decided squarely by the court to date. [00:34:10] Speaker 07: Well, venue is waivable, so there's no reason why it would have been. [00:34:14] Speaker 04: This may be a small, this is a small question. [00:34:18] Speaker 04: I didn't understand your argument, speaking of waiver, that venue waiver, that ARTBA had waived its ability to challenge venue here because all it did was intervene in the Ninth Circuit. [00:34:34] Speaker 03: uh... your honor point simply is that if the ninth circuit was the venue that that ARPA believed was the proper one it had the opportunity to secure its right to that court by suing it but doesn't it none of the cases are about intervention and doesn't it secure its right to [00:34:54] Speaker 04: argue in the Ninth Circuit by intervening in the Ninth Circuit? [00:34:58] Speaker 03: The court can evaluate the waiver of venue through equitable analysis, and our position is that by making that decision, the court can conclude that ARPA set on its rights to have its case heard in the Ninth Circuit. [00:35:13] Speaker 04: When you intervene, you have the right to have your arguments heard in that circuit. [00:35:18] Speaker 04: In fact, we've held that intervention requires standing, Article III standing. [00:35:23] Speaker 04: essentially because they're acting as a party, possibly with restrictions, depending under which rule. [00:35:28] Speaker 04: But right now they are essentially a party in the Ninth Circuit. [00:35:31] Speaker 04: I'm not following where the waiver comes in. [00:35:35] Speaker 03: If the court views its intervention in that case as being sufficient to get itself into court, then the waiver argument we raise is addressed and answered. [00:35:49] Speaker 03: further questions from the corner of the room. [00:35:51] Speaker 03: Thank you, Your Honor. [00:35:52] Speaker 03: For the foregoing reasons, we request that EPA's decision be affirmed. [00:35:57] Speaker 03: Is there time left? [00:35:59] Speaker 04: Oh, I'm sorry. [00:36:00] Speaker 04: I apologize. [00:36:07] Speaker 02: Good morning. [00:36:08] Speaker 02: Ross Hirsch on behalf of Intervenor Respondent California Air Resources Board. [00:36:13] Speaker 02: And I'm a little hesitant to even wade into the waters on venue in light of the evening. [00:36:19] Speaker 02: Well, you could wade if you're going to time, if you would. [00:36:22] Speaker 02: Well, I would. [00:36:24] Speaker 02: But we didn't brief this issue, so it really isn't our bailiwick. [00:36:27] Speaker 02: But I would like to just let the court know that California does take the position that even though we're on the other coast, [00:36:33] Speaker 02: This is the proper venue for waiver decisions to be heard. [00:36:39] Speaker 02: The way this statute works is like all other Clean Air Act waiver cases, authorization or waiver cases, is that the moment that immediately upon this statute being implemented by California, it immediately is nationally applicable for any other state to then join in and adopt the California standards. [00:36:59] Speaker 07: So it's not so much a matter of... You have to say that statement didn't make a whole lot of sense to me. [00:37:05] Speaker 07: It's nationally applicable immediately because states could make it applicable. [00:37:09] Speaker 02: I think applicability refers to really it is available for any other state. [00:37:18] Speaker 02: At the moment it's approved. [00:37:20] Speaker 02: Any other state can at that point jump in. [00:37:24] Speaker 02: That's true. [00:37:24] Speaker 02: It hasn't been applied yet, but it can be. [00:37:26] Speaker 02: So I guess what does applicable mean? [00:37:28] Speaker 02: It's available [00:37:29] Speaker 02: hence applicable for any other state to join in. [00:37:32] Speaker 04: That, of course, is exactly what we're struggling with. [00:37:35] Speaker 04: How do we know what applicable means? [00:37:36] Speaker 02: I understand. [00:37:37] Speaker 04: Do you have any help on that? [00:37:38] Speaker 02: You don't have any help? [00:37:40] Speaker 02: Like I said, this wasn't our issue. [00:37:42] Speaker 02: We didn't really even brief it, so I'm not sure it's... I mentioned that I was a little hesitant, but I would like to use the three minutes or the remainder of the short three minutes I have just to correct a misstatement in petition of brief [00:37:56] Speaker 02: that they use as support for their argument that a California off-road diesel standard is not needed. [00:38:05] Speaker 02: At page 30 of petitioner's brief, they state, it is undisputed that there are only two areas in California in non-attainment, namely the South Coast Air Basin and the San Joaquin Valley Air Basin. [00:38:18] Speaker 02: Now, ARB's briefing and the rulemaking record do highlight these two problematic areas. [00:38:23] Speaker 02: For ozone, both of them are in extreme nonattainment, and extreme is the highest level of five as far as severity. [00:38:31] Speaker 02: And in fact, they're the only two in the nation designated as extreme. [00:38:35] Speaker 02: For PM2.5, they're both classified as severe, which again is the highest classification, and the only two in the nation, I might add. [00:38:43] Speaker 02: So while it's undisputed, as petitioners do state, that these two air basins are in non-attainment for both ozone and PM2.5, they are in no way the only two basins in California in non-attainment. [00:38:58] Speaker 02: In California, we have 16 non-attainment areas for ozone. [00:39:02] Speaker 02: We have seven separate areas non-attainment for PM2.5. [00:39:06] Speaker 02: And these air basins span multiple counties, multiple air districts. [00:39:10] Speaker 02: And that's all on the record. [00:39:12] Speaker 02: Yes, that's all extensively so in the record, Your Honor. [00:39:15] Speaker 04: Can I ask a threshold administrative law question? [00:39:19] Speaker 04: This argument that they are raising about the San Joaquin Valley, which is raised in their reply brief, was it raised in the rulemaking record? [00:39:31] Speaker 04: That is, did they say there was no compelling, let's try to get the words here correctly, [00:39:39] Speaker 04: no compelling and extraordinary conditions except in those two places? [00:39:43] Speaker 02: You are correct. [00:39:44] Speaker 02: That was not raised in the rulemaking as far as we could observe. [00:39:49] Speaker 04: EPA says that they received no comment that addressed the fundamental question, not even on this question. [00:39:55] Speaker 04: In that case, you don't have to talk anymore about it, because we're not allowed to consider it. [00:40:00] Speaker 02: I would agree with that, and the testimony in the record from counsel clearly specifies what they are raising, and it is not this issue. [00:40:09] Speaker 02: So that is not something really the court even needs to consider. [00:40:13] Speaker 04: Thank you. [00:40:13] Speaker 04: Further questions? [00:40:15] Speaker 04: Thank you. [00:40:16] Speaker 04: Now my question, is there any time left? [00:40:20] Speaker 04: OK, you have one minute. [00:40:20] Speaker 04: Can I ask you about this one point, though? [00:40:23] Speaker 04: I thought it was an interesting argument in the reply brief. [00:40:25] Speaker 04: about the San Joaquin Valley and the other, there was one other air basin, south, south something. [00:40:35] Speaker 04: South coast. [00:40:36] Speaker 04: South coast, yes. [00:40:37] Speaker 04: But did you make an argument before the agency that there was no compelling need here because those were the only two places that were affected? [00:40:46] Speaker 05: absolutely yes your honor the tell me what page of the I'm sorry your honor I don't have the specific page but we certainly did you said those were the only places yes we did we didn't make an argument at the hearing that there was no compelling and extraordinary need for statewide standards that's not the same argument [00:41:08] Speaker 05: Well, it is the same argument with respect. [00:41:11] Speaker 05: No, it's not. [00:41:11] Speaker 06: Well, take it on my assumption, because you've got to convince all of us, and I'm one of us. [00:41:17] Speaker 06: OK. [00:41:17] Speaker 06: I'm not buying the broad covering the specific. [00:41:21] Speaker 06: You made a broad argument. [00:41:23] Speaker 06: The question is, did you raise these specific points about these two places to the agency so that they could have addressed it? [00:41:32] Speaker 05: Your Honor, we did raise the fact that there is not a compelling and extraordinary need for these California standards in the record. [00:41:49] Speaker 05: We did not specifically mention those two areas. [00:41:54] Speaker 07: We did not specifically mention those two areas. [00:42:07] Speaker 05: mention those two areas in the argument before the EPA. [00:42:11] Speaker 05: I would like to point out, though, that as a substantive matter, regardless of whether EPA in the waiver decision itself is looking at the program standard or the waiver by waiver standard suggested by the petitioners, in any event, it only refers to one set of facts to support the waiver decision [00:42:36] Speaker 05: under either standard. [00:42:37] Speaker 05: And that one set of facts on the face of the waiver document is that those two areas were non-attainment areas for national ambient air quality standards. [00:42:47] Speaker 07: But there are at least... Are you saying that's insufficient evidence for the EPA's action? [00:42:53] Speaker 07: So what? [00:42:54] Speaker 07: If they are the only two and they're non-adjacent areas [00:43:00] Speaker 05: EPA never addressed why the statewide standards are necessary. [00:43:04] Speaker 05: So there may be a compelling and extraordinary need as to why these standards are necessary in those two areas cited by the government. [00:43:12] Speaker 05: But there's no rational connection between the facts found. [00:43:15] Speaker 05: Two out of at least 15 air basins are non-attainment, and the decision made that all 15 air basins should be subject to these regulations because of the compelling and extraordinary need. [00:43:27] Speaker 04: So that's the question I had, whether you had raised that, Pete. [00:43:29] Speaker 04: And maybe after you leave today, could you submit something, a letter telling, just saying which pages of the record for the agency we could make, we could find an argument that is or approximates the argument that you're making now. [00:43:44] Speaker 04: In the administrative record? [00:43:46] Speaker 04: Yes, only in the administrative record, right. [00:43:47] Speaker 04: Yes, Your Honor, I will do that. [00:43:48] Speaker 04: Thank you. [00:43:49] Speaker 04: Are there further questions from the bench? [00:43:52] Speaker 00: Thank you. [00:43:52] Speaker 04: We'll take the matter under submission.