[00:00:04] Speaker 00:
Case number 14-1112 at L, Henry Murray Energy Corporation Petitioner.

[00:00:10] Speaker 00:
Case number 14-1146, State of West Virginia at L, Petitioners versus Environmental Protection Agency.

[00:00:16] Speaker 00:
Mr. Lin for Petitioner, Intervener States.

[00:00:19] Speaker 00:
Mr. Barnes for Petitioner Murray Energy Corporation.

[00:00:22] Speaker 00:
Mr. Tribe for Petitioner, Intervener Peabody Energy Court at L. Mr. Link and Ms.

[00:00:28] Speaker 00:
Berman for Respondent EPA.

[00:00:30] Speaker 00:
Ms.

[00:00:30] Speaker 00:
Costello for Respondent Intervener States.

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and Mr. Donahue for Respondent Interveners, NGOs.

[00:00:37] Speaker 05:
All right, Mr. Lin, good morning.

[00:00:39] Speaker 05:
Before we start, first, we'd like to thank the council for accommodating our changed oral argument schedule.

[00:00:47] Speaker 05:
And just so we're all on the same sheet of music, the order is going to be jurisdiction merits, jurisdiction merits, as I understand it.

[00:00:57] Speaker 05:
Yes, Your Honor.

[00:00:58] Speaker 05:
OK.

[00:00:59] Speaker 05:
All right.

[00:01:00] Speaker 10:
Good morning, and may it please the Court.

[00:01:02] Speaker 10:
I'm Albert Lins, Lister General for the State of West Virginia.

[00:01:05] Speaker 10:
As Judge Henderson just said, I want to confirm I'm up here today to address all the non-merits issues for all three cases.

[00:01:12] Speaker 10:
Then Mr. Barnes and Professor Tribe will speak to the statutory and constitutional questions that go to the merits of all three cases.

[00:01:19] Speaker 10:
And I've reserved six minutes of my time for rebuttal.

[00:01:24] Speaker 10:
Your Honors, there are three equally appropriate vehicles before this Court to provide relief in this highly unusual case.

[00:01:32] Speaker 10:
The request for a writ, the petition for review, and the challenge to the settlement agreement, which I will address in that order if I may.

[00:01:41] Speaker 10:
First, the writ.

[00:01:43] Speaker 10:
Three reasons together put this case comfortably within this Court's and the Supreme Court's cases.

[00:01:49] Speaker 11:
Mr. Lin, do you know of any case in which we have halted a proposed rulemaking?

[00:01:56] Speaker 11:
I do not, Your Honor.

[00:01:57] Speaker 11:
Why do you think that might be?

[00:01:59] Speaker 11:
I mean, in a rulemaking, there is a provision for judicial review, right?

[00:02:03] Speaker 11:
It's not going to be a question that's avoided.

[00:02:06] Speaker 11:
We're going to get to this, right?

[00:02:08] Speaker 11:
When the rule comes out, it'll be challenged.

[00:02:10] Speaker 11:
We're going to get to it.

[00:02:11] Speaker 11:
Why in the world would we resort to an extraordinary rate, which we have never used before?

[00:02:16] Speaker 11:
So it really is quite unusual.

[00:02:18] Speaker 10:
Of course, Your Honor, it is highly unusual, and we acknowledge that.

[00:02:21] Speaker 10:
Of course, in any situation where a writ has been granted, especially where there's the possibility for appeal, that's the very idea of the All Writs Act.

[00:02:29] Speaker 10:
As the Supreme Court has said, it provides this Court the ability to issue a writ in cases over which it will have appellate jurisdiction.

[00:02:36] Speaker 11:
And we think there are three... It's to preserve our jurisdiction and to...

[00:02:40] Speaker 11:
to make certain that there aren't issues that evade our review otherwise.

[00:02:46] Speaker 11:
What's the issue that would evade our review here?

[00:02:49] Speaker 11:
This is a garden variety in that sense.

[00:02:52] Speaker 11:
Rulemaking.

[00:02:52] Speaker 11:
We do this all the time.

[00:02:55] Speaker 10:
Well, Your Honor, I don't think first, I don't think that it's necessarily, I think the words in aid of jurisdiction have not been interpreted by the Supreme Court or definitively by this Court only to apply to situations to protect this Court's jurisdiction.

[00:03:09] Speaker 10:
I think what the Supreme Court has said is review under the All Writs Act is in the nature of

[00:03:16] Speaker 10:
an appellate review.

[00:03:18] Speaker 10:
But even if this court were to, say, use the track, the language from the telecommunications case, interpreting in aid of us to protect the jurisdiction, I think one of the issues here is that there are remedies that this court cannot provide in the future.

[00:03:33] Speaker 10:
And that gets to one of the three reasons, which is that there are ongoing harms

[00:03:37] Speaker 10:
that cannot be adequately remedied.

[00:03:39] Speaker 10:
And they're both to all the petitioners, both to industry, but especially to the states.

[00:03:44] Speaker 11:
Once again, any case in which bracing for the cost of a proposed regulation has – we found there's Article 3 standing there.

[00:03:58] Speaker 11:
You know of any case in which we've said you're bracing for what's coming down the pipe, therefore it's standing?

[00:04:04] Speaker 10:
Well, Your Honor, I think, first, I think there's a difference between the bracing for the costs, which may be more in the vein of what the private industry is doing.

[00:04:12] Speaker 10:
But it's not just bracing.

[00:04:13] Speaker 10:
They're making decisions that they have to make because, you know, these utilities make decisions on a 5-, 10-, 15-year horizon.

[00:04:20] Speaker 10:
But more importantly, what we have here that is unusual is it doesn't come up very much.

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is a situation where what the rule does is it makes the states become the primary regulators.

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And you have before you declarations from eight experienced state regulators.

[00:04:38] Speaker 11:
But you still have the fact that all we have in front of us is a proposed rule.

[00:04:42] Speaker 11:
We have proposed rulemaking.

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Nothing is final yet.

[00:04:46] Speaker 11:
We don't know what the final rule is going to look like.

[00:04:48] Speaker 11:
I mean, I imagine we can guess, and the Administrator hasn't been very helpful to the government's argument in this case with her statements.

[00:04:55] Speaker 11:
I guess we could guess what the final rule would look like, but I don't think that we're typically not in the business of guessing what a final rule would look like.

[00:05:03] Speaker 11:
We typically wait

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do we have a final rule till the legal terrain has changed?

[00:05:08] Speaker 11:
Do we know what the issues actually will be?

[00:05:12] Speaker 10:
Well, Your Honor, that gets to the three reasons, because I think the three reasons do address that.

[00:05:17] Speaker 10:
And the first is that what we have here is the highly unusual circumstance

[00:05:22] Speaker 10:
of an agency that is using the cover of a proposed rulemaking to avoid judicial review, where in fact it has made up its mind on the one issue that we're talking about here.

[00:05:31] Speaker 10:
And how do we know that?

[00:05:32] Speaker 10:
From the Administrator's statements?

[00:05:34] Speaker 10:
We know that both from the Administrator's statements, but also from the statements in the rule and from the statement that she made when they announced the rule.

[00:05:41] Speaker 11:
But aren't there plenty of instances in which an agency announces a proposed rule, is a dogged advocate for that in public, and yet as a result of notice and comment, they amend the rule.

[00:05:54] Speaker 11:
They change the rule.

[00:05:55] Speaker 11:
Sometimes they may abandon the rule altogether.

[00:05:58] Speaker 11:
Not uncommon, isn't it?

[00:06:00] Speaker 10:
Well, we're not familiar with another situation where they have made statements of the definitive nature about the legal authority that they have made in the preamble to the rule.

[00:06:09] Speaker 11:
If you compare the statements about... So your rule would have us analyze, review proposed rules based on what?

[00:06:18] Speaker 11:
Based on

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statements of the agency head that she thinks the proposed rule will look like the final rule?

[00:06:25] Speaker 11:
Is that the terrain you want to put us into?

[00:06:28] Speaker 11:
Those are going to be tough calls for us to make.

[00:06:34] Speaker 10:
They are, but writs of probation cases are always tough calls, and that's why it's a case-by-case standard.

[00:06:40] Speaker 10:
And again, I think there are three factors here, not just the first.

[00:06:44] Speaker 10:
Three reasons, and the first is this, where there are definitive statements about this particular issue, the Section 112 exclusion, and if you compare those statements

[00:06:53] Speaker 10:
in the preamble to the other statements about the other legal questions, what is the best system of emissions reduction, whether the best system of emissions reduction will be applied statewide.

[00:07:03] Speaker 10:
All of those are stated in terms of this is what EPA is proposing.

[00:07:06] Speaker 08:
Wasn't one of your second and third?

[00:07:08] Speaker 10:
The second is the ongoing harms that are especially being incurred by the states that cannot be adequately addressed.

[00:07:16] Speaker 10:
And the third is that this is an absolute prohibition.

[00:07:20] Speaker 10:
This gets to Judge Griffith's question.

[00:07:22] Speaker 10:
The one issue that is here before this Court, it does not matter if we are right.

[00:07:27] Speaker 10:
It does not matter what else happens here, because there is no rule of any kind

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that can be issued under 111D to regulate existing power plants because there is a section 112 rule.

[00:07:43] Speaker 10:
And I think this falls, I mean there are a number of cases both in this court and in the Supreme Court that are relevant here.

[00:07:51] Speaker 10:
There are cases where both this court and the Supreme Court have granted a writ where there has been a misbehaving agency, or a misbehaving inferior court.

[00:08:04] Speaker 10:
It's the Colonial Times case where there's about taking a deposition without stenographer.

[00:08:09] Speaker 11:
But again, none in which the proposed rulemaking was halted.

[00:08:14] Speaker 11:
None.

[00:08:15] Speaker 10:
That's correct, Your Honor, but the whole idea of an extraordinary writ is that there will be an extraordinary circumstance, and I think it would be remarkable.

[00:08:23] Speaker 08:
But it's not that extraordinary, and I understand this is an important...

[00:08:28] Speaker 08:
rulemaking but there are other important rulemakings we face over time and yet the absence of precedent indicates that the formality of the actual final rule being promulgated is the dividing line between judicial review and waiting.

[00:08:48] Speaker 08:
Well, I think that's true.

[00:08:49] Speaker 08:
And that's true even though there are lots of cases where you, in essence, know what's coming.

[00:08:55] Speaker 10:
Of course, Your Honor.

[00:08:55] Speaker 10:
And I think that is true in the ordinary course.

[00:08:58] Speaker 10:
And I don't think we dispute that.

[00:08:59] Speaker 10:
I mean, our position is that we don't think we'd ever see a situation where there are these three unique circumstances.

[00:09:06] Speaker 10:
Again, in particular, the first one, because if this court holds, issues are writ here and says one of the reasons is that the agency is

[00:09:17] Speaker 10:
is using a proposed rulemaking to evade judicial review when it has in fact made up its mind that it will issue a rule.

[00:09:24] Speaker 10:
That is something an agency can adapt to.

[00:09:26] Speaker 10:
They will not do this kind of a thing again.

[00:09:28] Speaker 10:
We won't see this again.

[00:09:30] Speaker 10:
And secondly, I think the other reason that this is highly unusual, which we've talked about, but I think it's worth emphasizing is this is a case involving where the federal government saying that the states are going to be

[00:09:44] Speaker 10:
the primary regulators, and where the administrator said on day one, states need to begin preparing.

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And that's not something that you're going to see a lot either.

[00:09:53] Speaker 10:
There are cooperative federalism regimes out there, but there are not, as compared to the universe of rules, situations where you have states

[00:10:02] Speaker 10:
that must begin preparing now both because of the statement of the administrator and the finality that's clear from the rule that there will be a rule.

[00:10:12] Speaker 08:
It does seem like there are lots of rule makings we confront or proposed rule makings that end up in final rules where people do have to start planning if they're prudent ahead of time and I'm having trouble seeing how that

[00:10:29] Speaker 08:
factor here would distinguish this from, as Judge Griffith says, a lot of other cases where we would suddenly be put in this morass of trying to figure out, are the statements enough to kind of make this obvious what's coming down the pike?

[00:10:46] Speaker 08:
I'm having trouble seeing the line.

[00:10:48] Speaker 10:
Sure, and I think, again, I think there's an important distinction between while there are very significant harms to the industry petitioners and because there are going to be stranded investments and important issues there, I understand Your Honor's concern that maybe that comes up in a lot of cases.

[00:11:05] Speaker 10:
But here we have states.

[00:11:08] Speaker 08:
Right.

[00:11:08] Speaker 08:
There are, as you acknowledge, there are lots of programs, cooperative federalism programs, of course, and lots of areas outside the environmental area where the states are heavily involved in the federal program.

[00:11:21] Speaker 08:
And it does seem like the states often have to prepare, too, for what?

[00:11:26] Speaker 08:
they know is coming, but it's not quite yet finalized.

[00:11:29] Speaker 08:
Maybe I'm wrong about that, but I think there are a lot of programs where the states are heavily involved and they have to get ready, so to speak.

[00:11:39] Speaker 10:
Well, I don't think we've ever seen a program that's like this, and that's why the eight uncontested declarations are important.

[00:11:46] Speaker 10:
We have eight experienced state regulators who have between them an average of two decades of experience each, and they all say to the person,

[00:11:55] Speaker 10:
They have never seen a rule like this, one that, as the administrator herself has said, attempts to regulate from plant to plug.

[00:12:04] Speaker 10:
I mean, this is about fundamentally reordering the way that energy is provided within our borders.

[00:12:09] Speaker 10:
And each one of these regulators says... But maybe the final rule will change some.

[00:12:15] Speaker 08:
I know you don't think that's a possibility, but the whole point of

[00:12:19] Speaker 08:
are having a comment period, even when you're adamant at the beginning, is maybe you'll tweak it.

[00:12:26] Speaker 08:
Maybe you'll change your mind entirely.

[00:12:28] Speaker 08:
Sometimes people do that.

[00:12:29] Speaker 08:
Sometimes courts do that.

[00:12:31] Speaker 08:
They change their mind based on arguments and reconsider things.

[00:12:36] Speaker 08:
And for us to get in the middle of this before that's happened seems highly unusual and would preclude the whole process that is designed to lead to a reasoned final result.

[00:12:49] Speaker 11:
Of course, that is, again, the usual process.

[00:12:51] Speaker 11:
And you're arguing that there's this unusual combination of factors that would make this sort of a one-off.

[00:12:56] Speaker 11:
I'm not so certain.

[00:12:57] Speaker 11:
If we were to do that, which we've never done before, if we were to do that, it would invite lots of other challenges before a rule is finalized.

[00:13:05] Speaker 11:
And then where are we?

[00:13:08] Speaker 11:
What are the judicially manageable standards we use to determine short of the final rule

[00:13:15] Speaker 11:
when a challenge is justiciable.

[00:13:18] Speaker 11:
I think it's a real problem.

[00:13:19] Speaker 11:
You're inviting us into a morass.

[00:13:22] Speaker 10:
Well, I think this court and the Supreme Court and other courts have always faced that question in writ cases.

[00:13:28] Speaker 10:
The Colonial Times case and the Shleginov case, both of those had to do with district court discovery orders relating to how to take a deposition.

[00:13:40] Speaker 10:
Lines were drawn and floodgates weren't opened.

[00:13:43] Speaker 10:
The Trap case has certainly not overwhelmed this court's docket.

[00:13:46] Speaker 10:
I mean, in the ordinary course, if a petition for writ is filed and there's nothing there, this court doesn't even call for a response and dismisses it in a fairly short order.

[00:13:56] Speaker 10:
And again, I mean, I think what we have here is while in the usual case,

[00:14:00] Speaker 10:
You may have minds that are changed.

[00:14:05] Speaker 10:
What the states are faced with and what our regulators have said, again, in these uncontested declarations, is that we're faced with what we know now.

[00:14:14] Speaker 10:
And what we know now is we're facing a rule of an unprecedented scope.

[00:14:21] Speaker 11:
requiring actions that are... The legal memorandum itself and the preamble, they invite comment.

[00:14:27] Speaker 11:
Now, is your argument that that's just a sham, that they've made up their mind and they're not interested in the comment, that the comment period is just a complete sham?

[00:14:36] Speaker 10:
That must be your argument.

[00:14:37] Speaker 10:
On this particular issue, we do not think that their mind is actually open.

[00:14:40] Speaker 10:
We think their mind is made up.

[00:14:42] Speaker 11:
Contrary to the AHA... Because of the administrator's statements, right?

[00:14:45] Speaker 11:
Are there other instances?

[00:14:46] Speaker 10:
Both because of, again, the contrast between how they describe their conclusions on the Section 112 exclusion and how they describe their conclusions.

[00:14:55] Speaker 10:
Where?

[00:14:55] Speaker 10:
In the legal memorandum?

[00:14:56] Speaker 11:
In the preamble and in the legal memorandum.

[00:14:58] Speaker 11:
But what I'm saying is that both of those invite comment.

[00:15:03] Speaker 11:
They say, we've taken this position now, please comment on it.

[00:15:06] Speaker 11:
Now you're, again, if you're going to invite us into those sorts of disputes, I don't see a limit on it.

[00:15:16] Speaker 10:
Well, I think the limit is they can speak in terms of proposals.

[00:15:20] Speaker 10:
They were able to do it here.

[00:15:22] Speaker 10:
Inviting comment after the legal memorandum and the preamble, that's not good enough for you?

[00:15:28] Speaker 10:
Well, not here.

[00:15:29] Speaker 10:
What they had was the definitive conclusions versus the proposals.

[00:15:34] Speaker 10:
And then while they did invite comment generally, the distinction was confirmed by the statements that the administrator made both at the time that it was issued

[00:15:43] Speaker 11:
And I grant you, the statements of the administrator do not help the government's argument at all.

[00:15:49] Speaker 11:
I grant you that.

[00:15:51] Speaker 05:
I think I see this differently from my colleagues.

[00:15:55] Speaker 05:
I see a closed mind as far as the legal issue.

[00:15:57] Speaker 05:
And unless you line up every environmental lawyer in this country to make comments about this is legal, it's not legal, they've already stated their position.

[00:16:08] Speaker 05:
on the legality of it.

[00:16:09] Speaker 05:
And that's not going to change with comments.

[00:16:12] Speaker 05:
I mean, the only thing that's going to change it is a court telling them, no, you're wrong on the law.

[00:16:17] Speaker 10:
That's right, Your Honor.

[00:16:19] Speaker 05:
Can I ask you about 7607E?

[00:16:23] Speaker 05:
Of course.

[00:16:24] Speaker 05:
That's the provision that says no other judicial review can be recognized in this case.

[00:16:37] Speaker 05:
What about the writ as far as that?

[00:16:40] Speaker 05:
Is it your position that the relief by writ is excluded from that prohibition?

[00:16:47] Speaker 10:
Yes, Your Honor.

[00:16:48] Speaker 10:
I think the way we would look at this is that the writ 7607D, which provides that this court will ultimately have exclusive jurisdiction over this kind of a rule, is what provides jurisdiction here.

[00:17:00] Speaker 10:
This court has the ability, in aid of its jurisdiction, to issue all writs that are necessary and appropriate.

[00:17:05] Speaker 05:
All right.

[00:17:06] Speaker 05:
And as I read, not only our precedent of the Supreme Court, our jurisdiction only has to be potential or future to issue an extraordinary writ.

[00:17:19] Speaker 05:
That's what an aid of jurisdiction, I think, is alluding to.

[00:17:23] Speaker 05:
In other words, if for some reason, as

[00:17:28] Speaker 05:
then Judge Roberts said if the appeal hasn't been perfected or for some reason it's simply potential, yes, we have the authority to issue a writ.

[00:17:38] Speaker 10:
Yes, Your Honor, I think you're referring to the Evaporative Milk case, Roach.

[00:17:42] Speaker 10:
Well, this is in Rate 10.

[00:17:43] Speaker 10:
Okay, there's that, there's FTC versus Dean, which says the same thing.

[00:17:46] Speaker 10:
Any time, the only times that the Supreme Court of the United States has spoken about the innate of language, that is what they have said.

[00:17:53] Speaker 10:
And this court, while it has said to protect jurisdiction in track, it also said, in a later case, UTE, that track is, of course, relates only to a narrow class of writs that can be issued under the All Writs Act.

[00:18:08] Speaker 05:
As far as the costs and so forth that are going on now, I just read the affidavit that discussed the little sunflower rural utility that

[00:18:24] Speaker 05:
It's going to take between 18 months and four years for them to prepare if this thing goes through.

[00:18:30] Speaker 05:
That's an extraordinary type of cost right now.

[00:18:35] Speaker 10:
That's right, Your Honor.

[00:18:36] Speaker 10:
That's a very good declaration that sets forth the harms and the decisions that need to be made by industry and by the utilities.

[00:18:44] Speaker 10:
As Mr. Penrod points out in that declaration, they not only have to make decisions about what they're doing going forward because

[00:18:52] Speaker 10:
of contracts and things of that nature, they also have to plan in advance as much as seven years when they're going to have shutdowns.

[00:19:00] Speaker 10:
And if they don't start taking that into account now, they'll have unplanned shutdowns and they have all kinds of other – there's a whole regulatory morass with respect to their requirement to be able to provide energy.

[00:19:14] Speaker 10:
But even beyond the writ, we think there are the other two vehicles, the petition for review, which turns on a lot of what we talked about already as far as the statements in the preamble and in the legal memorandum being final as to the Section 112 exclusion, but not as to the others.

[00:19:32] Speaker 10:
And then there's also the challenge to the Settlement Agreement.

[00:19:35] Speaker 10:
How do you get it right?

[00:19:37] Speaker 08:
You had a challenge out in 60 days, the Settlement Agreement.

[00:19:42] Speaker 10:
We don't think so, Your Honor.

[00:19:43] Speaker 10:
As we explained, we think we fall within the After Rising Rightness clauses of Section 307D.

[00:19:51] Speaker 10:
And that's because at the time when the Settlement Agreement was finalized and finally announced, noticed in the Federal Register in April of 2012,

[00:20:02] Speaker 10:
It was not ripe at that time.

[00:20:04] Speaker 10:
And I think maybe one way to think about it is, if you had, say, two parties that entered into a contract to do something, and Congress passed a law, or even the state passed a law that made the object of that contract illegal, would the challenge be ripe at that time, or would the challenge be ripe when one of the parties attempted to do what it was obligated to do?

[00:20:25] Speaker 08:
But it's interesting that you say in your brief, your reply brief,

[00:20:29] Speaker 08:
It wasn't clear in April 2012 that EPA intended to abide by the Section 111D portion of the settlement, in essence saying maybe EPA would change its mind.

[00:20:41] Speaker 10:
At the time, yes.

[00:20:42] Speaker 10:
And now I think in June of 2014 what we have is not only have they gone ahead, but they've gone ahead in spectacular fashion.

[00:20:49] Speaker 10:
by making very clear both in the preamble itself and in repeated statements by the administrators since then, even as recently as Tuesday of this week in Chicago.

[00:20:59] Speaker 08:
When did the safer thing have been to assume that EPA was going to abide by

[00:21:06] Speaker 08:
the section 111D portion of the settlement.

[00:21:10] Speaker 08:
You went with a hope for the best approach in not filing within 60 days of that, I guess.

[00:21:17] Speaker 08:
Well, we would have had to litigate the question of rightness at that time, and I think we're... No doubt, and I understand the confusion in the rightness case law, but there is the 60-day requirement.

[00:21:26] Speaker 08:
What about standing on it?

[00:21:27] Speaker 08:
We have a case that says

[00:21:29] Speaker 08:
challenges to settlement agreements on the Defenders of Wildlife case.

[00:21:33] Speaker 08:
How do you deal with that case?

[00:21:34] Speaker 10:
Yes, Your Honor, and that's obviously Judge Henderson's decision.

[00:21:37] Speaker 10:
We think that there's a fairly clear distinction, which is the difference in the timing.

[00:21:41] Speaker 10:
What happened in the Defenders of Wildlife case, the challenge was brought at the time that the consent decree was being entered into and approved by the court.

[00:21:49] Speaker 10:
The only question there

[00:21:51] Speaker 10:
was whether the consent decree itself could cause harm sufficient for standing.

[00:21:56] Speaker 10:
What we have is not an issue of the challenge action directly causing harm, but something more like the Tazi case that we discussed, where it's an indirect harm by the challenge agency action.

[00:22:09] Speaker 10:
As this court has said, the question there is, is there harm?

[00:22:13] Speaker 10:
and that is that harm traceable?

[00:22:15] Speaker 10:
And so I think that's a very different situation than what was going on.

[00:22:19] Speaker 05:
Are any of the states party to the settlement agreement on the petitioner's side of this case?

[00:22:28] Speaker 10:
Any of the?

[00:22:28] Speaker 10:
No, they are not.

[00:22:29] Speaker 05:
All right.

[00:22:30] Speaker 05:
So where is the standing, let's say, for West Virginia to challenge a settlement agreement that it's not a party to?

[00:22:39] Speaker 10:
Well, some of the cases that they've cited from the Seventh Circuit, they talk about how there generally is not standing for a third party to a settlement agreement, but what we have here is a situation where, again, we are harmed by something that has happened as a result of the settlement agreement.

[00:22:55] Speaker 10:
And we are, in fact, the object of the settlement agreement, which is to promulgate this regulation that is directly about the states.

[00:23:04] Speaker 10:
And so I think we're dealing with a very different situation.

[00:23:06] Speaker 10:
But Judge Henderson, and I see my time has expired.

[00:23:09] Speaker 10:
Go ahead.

[00:23:10] Speaker 10:
But I think an observation that you made is important, which is, no, they are not on the petitioner's side, but the states are here who are parties, and they're on the other side.

[00:23:19] Speaker 10:
And they clearly think that that settlement agreement is imposing binding obligations.

[00:23:25] Speaker 10:
Otherwise, they wouldn't be here.

[00:23:26] Speaker 10:
Why are they here to defend the settlement agreement, if not for that, them and the environmental group interveners?

[00:23:35] Speaker 10:
With that, unless this Court has any further questions, Mr. Barnes will turn to the merits.

[00:23:38] Speaker 10:
Thank you.

[00:23:47] Speaker 06:
May it please the Court, I am Jeffrey Barnes, Counsel for Petitioner Murray Energy, and I would like to reserve two minutes of my time for rebuttal, which I will cede to co-counsel.

[00:23:59] Speaker 06:
Your Honor, the key merits question in this case is whether EPA can regulate power plants under Section 111D when they were already regulated under Section 112.

[00:24:09] Speaker 06:
Congress answered this question and said no.

[00:24:14] Speaker 06:
Section 111D exempts

[00:24:17] Speaker 06:
prohibits EPA from regulating under 111D any air pollutant emitted from a source category which is regulated under section 112.

[00:24:27] Speaker 11:
But now this is where the case really is an unusual case, right?

[00:24:30] Speaker 11:
I mean, is that what Congress said?

[00:24:32] Speaker 06:
Well, I believe and certainly if you look at EPA's positions until this litigation.

[00:24:39] Speaker 06:
No, but let's look at where do we look to?

[00:24:41] Speaker 11:
Do we look to the statutes at large?

[00:24:42] Speaker 11:
Do we look to the US Code?

[00:24:44] Speaker 11:
Well, if we look to the statutes at large and there's some

[00:24:47] Speaker 11:
precedent that says we do, we've got two conflicting provisions.

[00:24:52] Speaker 06:
Well, there really is no conflict, we believe, in the statutes at large.

[00:24:59] Speaker 11:
EPA has attempted... Do you agree that's where we ought to be looking, is the statutes at large?

[00:25:03] Speaker 06:
Well, the statutes at large are prima facie evidence of the law.

[00:25:11] Speaker 06:
And that obviously can be, it seems to me, viewed two ways.

[00:25:15] Speaker 06:
It's either presumptively valid, OK, or

[00:25:19] Speaker 06:
But the decision that was made by the office charged with the responsibility of correcting the types of Scrivener's error that we see in this case.

[00:25:32] Speaker 06:
How is this a Scrivener's error?

[00:25:36] Speaker 11:
Well, the way in which... You have the House passing a version of the law and then Senate passing a contrary version.

[00:25:45] Speaker 11:
That's not a scrivener's error.

[00:25:47] Speaker 11:
A scrivener's error is a mistake that a scrivener writes in recording something.

[00:25:51] Speaker 11:
There's no mistake here.

[00:25:53] Speaker 11:
There are no typographical errors in this.

[00:25:55] Speaker 11:
You have two conflicting provisions.

[00:25:58] Speaker 06:
Well, if you really look at the sequence of this and how it evolved, looking at

[00:26:06] Speaker 06:
referencing now the provisions as stated in the statutes at large.

[00:26:13] Speaker 06:
The House, again, it's not the ultimate version that was passed.

[00:26:19] Speaker 06:
The law that was passed, these weren't two different versions that were sort of competing at the time.

[00:26:24] Speaker 06:
Section 108G was a substantive change.

[00:26:29] Speaker 06:
It amended 111D by striking

[00:26:35] Speaker 06:
Section 112B1A, which was the list of hazardous air pollutants exempted from 111 deregulation.

[00:26:44] Speaker 11:
The bill that the President signed had a provision in it that said, you can't regulate, and had a provision in it that said, you can't regulate.

[00:26:54] Speaker 11:
We're dealing with a conflicting statute, right?

[00:26:58] Speaker 11:
Shouldn't we be looking to case law that tells us what to do with a conflicting statute rather than case law that talks about a scrivener's error?

[00:27:06] Speaker 06:
But if you look at the way in which the two provisions operate, you could give effect to either one and you would end up with the same result.

[00:27:17] Speaker 08:
And arguably... How's that on the Senate?

[00:27:20] Speaker 06:
Well, for example, under Section 302A, which was designed to... If you had just the Senate amendment... Yes.

[00:27:33] Speaker 06:
If you had just the Senate amendment, that would... You'd have a problem.

[00:27:39] Speaker 06:
No, because it depends if you first give effect to 302A, then you simply change, shift it to 112B instead of 112B1A.

[00:27:54] Speaker 06:
And then section 108 would delete 112, would delete 112B.

[00:28:01] Speaker 06:
So conversely, if you first give effect to section 108G,

[00:28:07] Speaker 06:
That would eliminate 112B1A.

[00:28:11] Speaker 06:
And then as the Laura Vision Council properly concluded, there's nothing for 302A to amend.

[00:28:20] Speaker 06:
In fact, interestingly, the... Can I imagine everyone at home is following that?

[00:28:29] Speaker 06:
My apologies, and I should also apologize to my colleagues who had to go through the process of looking for similar examples.

[00:28:38] Speaker 06:
And of these Scriveners, we would view Scrivener's amendments that were obviously an error.

[00:28:47] Speaker 06:
In fact, interestingly, here's the problem.

[00:28:49] Speaker 11:
If we don't think it was a Scrivener's error, if we think it's a conflict, we've got two conflicting statutes.

[00:28:57] Speaker 11:
If we disagree with your reading of it,

[00:28:59] Speaker 11:
Here's your problem.

[00:29:01] Speaker 11:
We can count five votes on the Supreme Court in the, and I don't know how to pronounce it, the SIA Bala case that tell us what to do if it's a conflicting statute.

[00:29:10] Speaker 11:
And they say, those five votes, I mean, I agree with them, but they say, this is a Chevron case.

[00:29:18] Speaker 11:
That's how, and when Congress passes conflicting statutes,

[00:29:23] Speaker 11:
we let the agency decide.

[00:29:27] Speaker 11:
So that's why you need to miss that box.

[00:29:29] Speaker 11:
You need to get out of that box, and you need to be with Scrivener's error.

[00:29:32] Speaker 11:
I understand.

[00:29:33] Speaker 06:
Yeah, but in the Skiavalla case, it was really a very different situation.

[00:29:37] Speaker 06:
You really had an internal contradiction in the statute.

[00:29:41] Speaker 06:
And frankly, if there were a conflict or a problem,

[00:29:48] Speaker 06:
You would defer to the Office of Law Revision Council and not to EPA.

[00:29:54] Speaker 06:
Why?

[00:29:55] Speaker 08:
I'm not sure I understand that.

[00:29:57] Speaker 08:
Why would you defer to that office?

[00:30:00] Speaker 06:
Well, there is no, to my knowledge, no case law dealing with deference to that office.

[00:30:06] Speaker 06:
But this was the office set up to resolve this type of error in the type of statute we have here.

[00:30:17] Speaker 06:
co-counsel, Professor Tribal, discuss in more detail.

[00:30:20] Speaker 06:
If you delegate to EPA, or if EPA takes, as they're attempting to do here, the task of deciding what the law is, okay, that raises some significant constitutional issues.

[00:30:35] Speaker 08:
I understand your argument on that, but I

[00:30:38] Speaker 08:
I guess I was just questioning why you would defer necessarily to the office.

[00:30:45] Speaker 06:
Well, not necessarily.

[00:30:47] Speaker 06:
But all I was doing is contrasting the notion of deference to EPA in this case, which we believe to be completely inappropriate and wrong.

[00:31:00] Speaker 08:
Saying the statutes like this but hypothetically of a statute authorizes an agency one provision of a statute or an amendment authorizes an agency to do X But not Y and another provision another amendment authorizes the agency to do X and Y Is there a is there a conflict Or is the agency just authorized to do X and Y?

[00:31:24] Speaker 06:
Well, it depends in part on, again, in the context.

[00:31:27] Speaker 06:
In this case, interestingly, EPA's own brief, footnote 23, at their page 48, where they went through and

[00:31:36] Speaker 06:
dismissed the various examples, similar examples, of how the Office Law Revision Council does its job properly.

[00:31:45] Speaker 06:
They acknowledged that one of the examples that we raised, in fact, would be a

[00:31:56] Speaker 06:
clearly in error, that is to say, obviously in error.

[00:32:00] Speaker 06:
And it was a very similar situation in which we had one bill, two amendments, the first amendment deleted the text, and the second altered the text.

[00:32:11] Speaker 06:
And in that case,

[00:32:13] Speaker 06:
And again, EPA's own brief acknowledges that when you have that kind of a situation, it is, appropriately, obviously an error.

[00:32:24] Speaker 06:
And there it is appropriate for the government to, or for the Office of Law Revision Council, to do what they did in this case.

[00:32:35] Speaker 06:
In fact, it's similar to the Bank of Oregon case where you had sort of clear evidence of an unreasonable omission.

[00:32:49] Speaker 06:
It simply failed to execute because the Section 302A simply had nothing to refer to at that point.

[00:33:04] Speaker 06:
a variety of additional arguments where they now, for the first time in this litigation, claim that the text of the code is also somehow ambiguous.

[00:33:18] Speaker 06:
That has never been their position before.

[00:33:21] Speaker 06:
In fact, they had conceded repeatedly.

[00:33:25] Speaker 06:
In fact, even in the

[00:33:27] Speaker 06:
even in the legal memorandum in this case, that, quote, a literal reading of the statute would mean that the EPA could not regulate any air pollutant from a source category regulated under section 112.

[00:33:40] Speaker 06:
They acknowledge, again, the plain reading of this statute.

[00:33:46] Speaker 06:
And one of the key points in this case is that

[00:33:58] Speaker 06:
The context and structure of the Act, again, which is how we should look at interpreting Section 111D, makes perfect sense because what we're talking about here are an important distinction with existing sources as opposed to new sources.

[00:34:17] Speaker 06:
When you have a new source, you can evaluate multiple requirements, fold that into the economic decision, the investment decision, particularly in the utility context over which you're going to have a known set of requirements.

[00:34:35] Speaker 06:
Instead, what EPA is doing here under Section 111D, which was seldom used, applies to existing sources.

[00:34:43] Speaker 06:
That's a very different approach where after the initial construction is done, you have subsequent requirements being imposed that could completely disrupt.

[00:34:55] Speaker 06:
And this is one of the reasons that Section 111D had seldom been used.

[00:35:00] Speaker 06:
Now EPA is attempting to take that provision and expand it vastly into this new huge regulatory program over carbon because that is now the great concern of the day.

[00:35:14] Speaker 06:
EPA claims that if they can't do this, there's an enormous gap.

[00:35:20] Speaker 06:
That is not so.

[00:35:23] Speaker 06:
The – well, first, that's not really the issue.

[00:35:26] Speaker 06:
The core question is what did Congress say?

[00:35:28] Speaker 06:
And we believe Congress was clear on this statute and that, for example, EPA can continue to cover sources not covered by Section 112.

[00:35:42] Speaker 06:
New sources under Section 111B can be regulated.

[00:35:46] Speaker 06:
Under the AEP versus Connecticut decision recently by the Supreme Court, or the UART decision, that is to say, the PSD, that is to say, new source review requirements when an existing source goes through a modification, it can be subjected to additional requirements.

[00:36:10] Speaker 06:
EPA could delist under Section 112 if it chose instead to go under Section 111D.

[00:36:17] Speaker 06:
There are many different ways that this issue could be addressed, but we believe in this case that the agency has simply taken this one section, 111D, and attempted to create an entire scheme where Congress, we believe very directly in the statute, simply said they could not go.

[00:36:36] Speaker 06:
Whatever you may think of the ultimate policy choice on this regulatory scheme, you simply – the agencies simply shouldn't be able to take a clear statutory prohibition and create an entire new scheme on a provision that simply wasn't designed to do that.

[00:36:57] Speaker 06:
This should be a choice by Congress.

[00:37:00] Speaker 06:
We're already dealing with the complexities.

[00:37:03] Speaker 06:
of dealing with carbon under the Clean Air Act.

[00:37:08] Speaker 06:
And again, whatever you think of the policy choices, this is simply not available as a vehicle by which the agency should be permitted to proceed.

[00:37:20] Speaker 05:
Before you sit down, Mr. Barnes, I wanted to ask you what effect, if any, you think the White Stallion case that is now before the Supreme Court, if that mercury rule is vacated,

[00:37:33] Speaker 05:
Do you think that has any effect on this case?

[00:37:36] Speaker 06:
I don't believe so.

[00:37:39] Speaker 06:
EPA certainly never said that it would in any of the briefing.

[00:37:44] Speaker 06:
It's never taken that position.

[00:37:46] Speaker 06:
We don't know what the Supreme Court will do.

[00:37:50] Speaker 06:
The Supreme Court's decision is dealing with an important but relatively narrow issue of whether costs should be taken into account in deciding whether regulation under section

[00:38:03] Speaker 06:
112 is, quote, appropriate and necessary.

[00:38:07] Speaker 06:
EPA has clearly said that if it does, that no matter what happens to the case, they will proceed under this rule to evaluate costs and do the regulations.

[00:38:20] Speaker 06:
And in the meantime,

[00:38:22] Speaker 06:
The industry is suffering a tremendous harm because of the cloud of uncertainty that has been placed over the entire program.

[00:38:35] Speaker 05:
If you look at the... Are you back on carbon, rather than the mercury?

[00:38:40] Speaker 05:
I was asking about... Oh, the mercury, yes.

[00:38:42] Speaker 06:
to the wrong pollutant, but on mercury, though.

[00:38:46] Speaker 06:
But it's also relevant in the sense that there are many sources which are dealing with that regulation now.

[00:38:56] Speaker 06:
And they're facing a decision as to whether to continue or shut down.

[00:39:01] Speaker 06:
And the additional imposition of the uncertainty of this regulation, of having yet another

[00:39:09] Speaker 06:
item, it's a bit like the sort of Damocles, which doesn't have to be dropped to have a deterrent effect.

[00:39:17] Speaker 06:
As you look at what these

[00:39:20] Speaker 06:
utilities have to do in their efforts to comply in the long-term planning that would be needed.

[00:39:29] Speaker 06:
It's having a dramatic adverse effect on the utilities and in particular my client.

[00:39:35] Speaker 06:
The rulemaking will be completed in June, isn't that right?

[00:39:41] Speaker 06:
That is certainly what the two administrators said.

[00:39:45] Speaker 06:
an ambitious effort, but I see my time is up.

[00:40:06] Speaker 07:
May it please the Court?

[00:40:08] Speaker 07:
I think I'd like to begin with the point that Judge Henderson made about the apparently final decision by an apparently closed mind.

[00:40:19] Speaker 07:
There are all sorts of details that we don't necessarily know about.

[00:40:24] Speaker 07:
But what we do know is that we have an agency that is premising its actions

[00:40:31] Speaker 07:
on a view of the law, which is not about to change.

[00:40:35] Speaker 07:
They keep coming up with different rationales for reading 111D in this way that it hadn't been read for a quarter of a century.

[00:40:43] Speaker 11:
But we will know within two months what their final view is, right?

[00:40:48] Speaker 11:
I mean, the purpose of notice and comment

[00:40:50] Speaker 11:
is to give people a chance to contest it.

[00:40:54] Speaker 07:
And by then, Judge Griffith, it may be too late.

[00:40:57] Speaker 07:
That is, we don't know for sure exactly what kind of regulation the EPA would come down with for states that do not succumb to its commandeering.

[00:41:08] Speaker 07:
But we may never know, because every state may ultimately decide

[00:41:12] Speaker 07:
that it can't afford the risk.

[00:41:14] Speaker 11:
Well, can you give us a rule by which we would decide that a challenge to a proposed rule is ripe?

[00:41:24] Speaker 07:
I'm afraid I can't give you a bright line test.

[00:41:28] Speaker 07:
I do think that if you look more broadly outside the rulemaking context, you'll find a number of cases in which the US Supreme Court has decided that one needn't wait to see whether the guillotine is going to drop or

[00:41:42] Speaker 07:
which part of the neck it'll cut off.

[00:41:44] Speaker 07:
Let me give you a different example.

[00:41:46] Speaker 07:
In the Jackson case involving the Lindbergh law, somebody had been indicted, but not even tried yet.

[00:41:55] Speaker 07:
But what was hanging over his head was a provision that said, if you want to take the death penalty off the table, there's one way to do it.

[00:42:02] Speaker 07:
Plead guilty.

[00:42:04] Speaker 07:
Don't go for a jury.

[00:42:05] Speaker 07:
Now, if he had pleaded guilty, the court said that wouldn't necessarily have been a coerced plea.

[00:42:11] Speaker 07:
But the question was, is it permissible to condition what amounts to relief from an unwanted outcome on the waiver of a constitutional right?

[00:42:23] Speaker 07:
That was a question that the court had basically decided in Spicer in 1958, and as recently as Agency for International Development in 2013.

[00:42:34] Speaker 07:
The principle was, if you are threatening

[00:42:39] Speaker 07:
whether an individual or a state, with something that that individual or state has a right to resist, like commandeering by the government.

[00:42:49] Speaker 07:
And what you're doing is dangling a carrot saying, we'll take that threat away.

[00:42:57] Speaker 07:
If the carrot is we will not impose a certain burden on you, a tax or a regulation of a particular kind, as long as you give up your right, that's the moment at which it's crucial for the court to intervene.

[00:43:12] Speaker 07:
That's why in Jackson, the court struck the law down.

[00:43:15] Speaker 08:
That does seem like the reasoning that the Supreme Court used in Abbott Labs to allow challenges to rules pre-enforcement rather than forcing parties to wait for enforcement.

[00:43:26] Speaker 08:
This would be, I think, bumping it even further ahead.

[00:43:31] Speaker 07:
And for a reason that's quite extraordinary because, and I wanted to talk about the constitutional issues,

[00:43:37] Speaker 07:
This ongoing process by EPA deviates both vertically and horizontally from the separation and division of powers.

[00:43:49] Speaker 07:
And I want to talk specifically about this idea of dueling amendments.

[00:43:53] Speaker 07:
This is not a Chevron case.

[00:43:54] Speaker 07:
They are really asserting the right to take something that was deliberately receded to by the Senate, and I'll explain that in a moment, and say, well, we're going

[00:44:06] Speaker 07:
resurrect that and toss it into the air along with the bill that was passed by both houses in 1990 and signed by the president, and now say it's up to us to catch either the bill as it has been codified in the US Code for 25 years, or instead to catch something that couldn't even be executed.

[00:44:30] Speaker 07:
Now, let me talk about that for a moment before getting to the vertical violation of

[00:44:36] Speaker 07:
the constitutional structure, which involves commandeering, which these states cannot avoid unless they say, well, bring it on with your regulations.

[00:44:49] Speaker 07:
But they can't afford to gamble on that.

[00:44:52] Speaker 07:
So what's happening is that EPA is looking at a substantive prohibition, which was enacted by the Congress, not just the House, but by Congress in October of 1990.

[00:45:05] Speaker 07:
And although I can go into the reasons for concluding this based on the language of the US code, it very obviously borrows EPA from using 111D.

[00:45:18] Speaker 07:
the direct states to regulate source categories.

[00:45:22] Speaker 07:
That was the whole shift in 1990.

[00:45:24] Speaker 07:
Source categories that EPA already regulates under 112.

[00:45:30] Speaker 07:
And what they want to do is replace that with what was explicitly called, even in the statutes at large, a conforming amendment.

[00:45:40] Speaker 07:
There's a conforming amendment that traces

[00:45:43] Speaker 07:
to a vote in the Senate in April of 1990.

[00:45:46] Speaker 07:
And what that vote did was to update a cross-reference by deleting all of six characters, four of which were parentheses, and none of which remained.

[00:46:00] Speaker 07:
To be deleted in the bill, that was the whole problem.

[00:46:03] Speaker 07:
They were trying to delete something that didn't appear in the 1990 amendments.

[00:46:09] Speaker 07:
And for that reason, in October of 1990, the Senate conferees, this wasn't just some public officer, the Senate conferees receded from that conforming amendment.

[00:46:23] Speaker 07:
It was not, in any sense, a separate version of 111D.

[00:46:28] Speaker 07:
When the Law Revision Council concluded that it couldn't be executed because it tried to delete something that wasn't there,

[00:46:38] Speaker 07:
And that was what I suppose could be called a Scrivener's error.

[00:46:42] Speaker 07:
But in any event, it couldn't be done.

[00:46:44] Speaker 07:
So you couldn't really reconcile these two provisions, one of which is inoperable.

[00:46:49] Speaker 07:
But if you could, that is, if for a moment we imagine the scenario in which you've got a law, just to take Judge Kavanaugh's example, that says x and y,

[00:47:03] Speaker 07:
And what do you do?

[00:47:03] Speaker 07:
Well, the first thing you try to do with x and y are not wholly consistent.

[00:47:08] Speaker 07:
They wouldn't be.

[00:47:09] Speaker 07:
I mean, x would say you can't regulate the source.

[00:47:13] Speaker 07:
You can't regulate any pollutant from a source that you're regulating under 112 by using 111.

[00:47:20] Speaker 07:
The other one, I'm not sure what it would say, but suppose they're right.

[00:47:25] Speaker 07:
Suppose it would say it's all in terms of air pollutants.

[00:47:28] Speaker 07:
That is, you can't regulate an air pollutant under 111D that you're regulating under 112.

[00:47:34] Speaker 07:
What do you do when you have those two commands?

[00:47:37] Speaker 07:
You follow them both.

[00:47:38] Speaker 07:
They're not inconsistent.

[00:47:40] Speaker 07:
I mean, they're drawing a Venn diagram, and they're telling you that there's no intersection, and therefore they have to choose between the circles.

[00:47:49] Speaker 07:
Well, even if these were two laws and they're not, the Senate conferees receded,

[00:47:55] Speaker 07:
The obvious way, the only constitutional way to reconcile them is to obey them both.

[00:48:01] Speaker 07:
And that could be done here.

[00:48:02] Speaker 07:
There's no incompatibility.

[00:48:05] Speaker 07:
The reason they think there's an incompatibility is they seem to see the structure of 111D as a kind of three different on ramps to the regulatory road.

[00:48:17] Speaker 07:
Whereas instead, if you look at the sentence structure, it's three obstacles that you have to overcome.

[00:48:24] Speaker 07:
And if you have two laws.

[00:48:27] Speaker 08:
They see it as authorization, and you're describing it as prohibition.

[00:48:31] Speaker 08:
I think that's a challenging statutory question.

[00:48:35] Speaker 07:
Well, but if you read it, it's obvious that section 111D tries to create an exemption for 112.

[00:48:42] Speaker 07:
The way one of their fancy new readings in the brief they filed two months ago here would read it, it would be a mandate, not an exemption.

[00:48:51] Speaker 07:
That would be completely

[00:48:53] Speaker 07:
contrary to what the statute's ordinary meaning is.

[00:48:57] Speaker 07:
It seems to me because they read it as three on-ramps rather than three obstacles, they try to create the illusion that there are two different provisions or two different statutes that you have to reconcile.

[00:49:12] Speaker 07:
If there were, you could in fact obey them both by treating each of the obstacles as decisive.

[00:49:21] Speaker 07:
But think of it as Chevron really about the power of an executive agency to say, well, there's this law that's been on the books for a while.

[00:49:32] Speaker 07:
And actually, our argument would be a lot easier if we looked at a different law, one that was never actually enacted.

[00:49:41] Speaker 07:
It was included in the statutes at large, 107 pages from the operative sections, in a grab bag called Conforming Amendments.

[00:49:51] Speaker 07:
which listed six things that were problematic one way or another.

[00:49:56] Speaker 07:
This one problematic because it couldn't be accidentally.

[00:49:59] Speaker 11:
But do you agree that if we thought they were conflicting statutes, and I realize you think they're not, if they were conflicting statutes, then the Supreme Court has told us that it is a Chevron case.

[00:50:10] Speaker 11:
That's rather surprising, but that's what they've told us.

[00:50:14] Speaker 07:
I think it would be particularly surprising if applied to a context like this.

[00:50:18] Speaker 07:
I think to avoid reading the court as having dealt with the case of internal irreconcilable provisions as though it applied to a case where the Congress passes a statute

[00:50:30] Speaker 07:
And the statute has in it a separate section which says, here are some miscellaneous provisions.

[00:50:37] Speaker 11:
So you think it would make a constitutional difference if they were in separate, if the conflicting provisions were in separate statutes as opposed to the same one?

[00:50:44] Speaker 07:
Well, it depends whether it is an operative section of the statute or not.

[00:50:47] Speaker 07:
That is, it's not unusual to have an appendix that says, here are some things that were written down in this

[00:50:54] Speaker 07:
you know, vast law that, for some reason or another, are mistaken.

[00:50:58] Speaker 07:
You can't do them.

[00:50:59] Speaker 07:
They can't be executed.

[00:51:01] Speaker 07:
They ask for something impossible.

[00:51:04] Speaker 07:
And if you set them aside to make it clear to an ordinary reader that they're not intended to be operative, what's the... Well, see, but then you've changed the hypothetical that I'm giving you.

[00:51:12] Speaker 11:
The hypothetical I'm giving you is if I disagreed with you on that and saw here

[00:51:17] Speaker 11:
to conflicting provisions.

[00:51:19] Speaker 11:
Absolutely conflicting provisions.

[00:51:20] Speaker 11:
Absolutely conflicting provisions.

[00:51:21] Speaker 11:
Then it is Chevron, right, after you see it.

[00:51:25] Speaker 07:
I would try to look at that decision and read it more narrowly in order to avoid accusing the Supreme Court of not knowing how to read the Constitution.

[00:51:34] Speaker 07:
Because it seems to me this is a perfect example of lawmaking.

[00:51:37] Speaker 07:
I mean, it's not resolving an ambiguity of word.

[00:51:40] Speaker 07:
I mean, Chevron, among other things, requires that Congress make a decision to delegate something to an agency.

[00:51:46] Speaker 07:
Where in this law is there a decision to delegate to the EPA, not the power to set standards, but the power to choose between?

[00:51:57] Speaker 11:
And I would agree, even if I were to have the view that they were conflicting provisions, I would agree with your argument there.

[00:52:03] Speaker 11:
But I don't think they've given us the room to do that.

[00:52:05] Speaker 07:
That's the only way.

[00:52:06] Speaker 07:
Well, I think you have the room to do that.

[00:52:08] Speaker 07:
In fact, you did it in American Petroleum Institute against SEC.

[00:52:13] Speaker 07:
an opinion by Judge Taddle in 2013, where renumbering cross-references in a way that conflicted with a substantive amendment was said by this Court to be something that could be disregarded.

[00:52:26] Speaker 07:
I mean, talk about finding an elephant in a mousehole.

[00:52:30] Speaker 07:
This mousehole is a moot, non-executable, inoperative mousehole that nobody for a quarter century has thought

[00:52:39] Speaker 07:
could absolutely erase what Congress was obviously trying to do in 1990.

[00:52:45] Speaker 08:
Both amendments were signed in the legislation signed by the president, right?

[00:52:49] Speaker 07:
Right.

[00:52:50] Speaker 07:
And this was an amendment that might as well have said, boo boo boo boo boo.

[00:52:54] Speaker 07:
Because it couldn't be executed.

[00:52:56] Speaker 07:
I mean, it's worse than an inkblot.

[00:52:58] Speaker 07:
I mean, it's not something that could be done.

[00:53:01] Speaker 08:
But it's interesting if this was a mistake, which it seems like it was, that the way to correct it was,

[00:53:08] Speaker 08:
not to pass a technical amendment or technical corrections bill, which is obviously, as you know, common.

[00:53:15] Speaker 07:
It's also common because these comments of the reviser are circulated to everyone in Congress.

[00:53:22] Speaker 07:
If anyone in Congress had been in trouble, they would have said something.

[00:53:26] Speaker 08:
It's interesting whether that's equivalent to a technical

[00:53:29] Speaker 08:
amendment passed by both Houses and signed by the President.

[00:53:34] Speaker 07:
But I'm not asking for the kind of deference to the reviser's office that one would in order to raise the question of equivalence.

[00:53:40] Speaker 07:
I mean, the reviser here was simply a functionary who was performing a task that a well-programmed computer would have performed.

[00:53:50] Speaker 07:
That is, if any provision makes reference to a non-existent part of the statute, do not include it.

[00:53:56] Speaker 07:
That would be easy to program.

[00:53:59] Speaker 07:
It seems to me, in any event, the idea, the fundamental idea, that for an agency to say, aha, we're going to run with a different statute that can be deemed to have been enacted only by treating a non-executable moot provision as though it were law would really upturn the entire constitutional system in a way that I think this Court should make clear.

[00:54:23] Speaker 07:
Whatever relief it does or doesn't grant, I think, in terms of,

[00:54:27] Speaker 07:
Judge Henderson's reminder that this agency is going to think it can do that unless this court tells it cannot.

[00:54:33] Speaker 07:
That, at a minimum, is something I think this court should make plain.

[00:54:38] Speaker 11:
Well, I think on the merits you've identified, at least with the question I have in mind, is what to do with the Senate, with the House version.

[00:54:47] Speaker 07:
Well, it seems to me it's very much like what this court did in American Petroleum Institute.

[00:54:55] Speaker 07:
And that is to say there's a standard practice of disregarding provisions that are inoperable and for that reason haven't been included in the US Code.

[00:55:04] Speaker 07:
This would not be a unique case.

[00:55:06] Speaker 07:
If you were talking about and worried about floodgates, there are dozens of occasions where, despite the possibility of passing a technical amendment,

[00:55:15] Speaker 07:
In fact, the way the legislative system has gotten past the presence of provisions that can't be executed and are moot is simply to disregard them.

[00:55:28] Speaker 07:
And that's happened dozens of times.

[00:55:30] Speaker 07:
I hesitate to think how much of our jurisprudence would be upended if we were to say, well, because this could have been fixed,

[00:55:39] Speaker 07:
more directly by an exercise of legislative power, we have to live with the absurdity of treating as law something that simply cannot be executed.

[00:55:52] Speaker 07:
There is, I think, in addition, a serious problem with the rule of law and separation of powers, even if you set aside that novel attempt to rewrite the law altogether by applying Chevron in a context where I think it doesn't apply.

[00:56:09] Speaker 07:
And that is, even if you sweep away this dueling amendments theory and

[00:56:15] Speaker 07:
If you stick with the version of 111D that has been in the U.S.

[00:56:26] Speaker 07:
Code for the past quarter century, the problem arises from Justice Frankfurter's comment, which I think

[00:56:33] Speaker 07:
in a dueling way, both Judge Kavanaugh and Judge Griffith cited in the Sierra Club case.

[00:56:39] Speaker 07:
And that is that there are three main rules of statutory construction.

[00:56:43] Speaker 07:
Read the statute.

[00:56:45] Speaker 07:
Read the statute.

[00:56:46] Speaker 07:
Read the statute.

[00:56:47] Speaker 07:
That's really all you have to do here.

[00:56:49] Speaker 07:
You can't read this statute except with a predetermined desire to expand the authority of the EPA into an area that it has not in the past touched.

[00:57:00] Speaker 11:
That sounds familiar.

[00:57:02] Speaker 07:
Well, maybe, but I don't think that one gets the right to do that by adverse possession.

[00:57:08] Speaker 07:
I should have put that in an opinion I wrote.

[00:57:14] Speaker 07:
Well, I do think that they distort the statute beyond recognition.

[00:57:18] Speaker 07:
And just as a reality check, 111D, despite some rather interesting history that's present in the preamble to the Clean Power Act, the Clean Power Plan when it was announced last June,

[00:57:30] Speaker 07:
It's never been used to regulate or to order the states to regulate any source category that is already being regulated directly by the EPA under 112.

[00:57:43] Speaker 07:
And in fact, even if you go back before 1990,

[00:57:47] Speaker 07:
It's been used for only one relatively minor rule since the 1990 amendments, when the Clinton EPA agreed with our understanding of the statute, but concluded that under this understanding of the statute, you could use 111D to regulate landfills.

[00:58:07] Speaker 07:
It's never been used to revise the electric power grid or to do anything of the sort that the EPA is trying to do here.

[00:58:14] Speaker 05:
All right, you're over your time.

[00:58:16] Speaker 05:
We'll give you some time.

[00:58:17] Speaker 07:
Thanks.

[00:58:18] Speaker 07:
I suppose the main thing I didn't get to was the anti-commandeering problem, which I think is profound.

[00:58:23] Speaker 07:
So perhaps in my rebuttal I can talk about it.

[00:58:25] Speaker 05:
Thank you.

[00:58:26] Speaker 05:
Thank you.

[00:58:27] Speaker 05:
Mr. Link?

[00:58:37] Speaker 03:
Good morning, Your Honors.

[00:58:39] Speaker 03:
Consistent with your order of issues, I'm prepared to address jurisdiction while Ms.

[00:58:43] Speaker 03:
Amanda Berman will address the substantive questions.

[00:58:47] Speaker 03:
The Clean Air Act's judicial review provisions in Section 7607 reflect Congress's policy judgment that allowing EPA to make the first decision on all issues that arise in notice and comment rulemaking, including questions of statutory authority, is a better alternative for the court, the agency, and the public than piecemeal litigation.

[00:59:07] Speaker 03:
Because Section 7607 provides an adequate and exclusive remedy for petitioners challenged to EPA's statutory authority in the form of seeking review of a final promulgated regulation, they are not entitled to the unprecedented relief of using an extraordinary writ to review EPA's proposed rule.

[00:59:26] Speaker 03:
We think absolutely that use of the writ under these circumstances would enlarge the Court's jurisdiction.

[00:59:30] Speaker 03:
It would not simply be an aid of jurisdiction.

[00:59:33] Speaker 03:
Petitioners essentially are arguing that one type of challenge to EPA action, a claim that it lacks statutory authority, is so different from all others that the Court should review it immediately if any interested person objects to a proposed rule on that ground, while other claims must await a second round of review after EPA promulgates a regulation.

[00:59:51] Speaker 03:
But the text of 7607, and specifically 7607D9, makes no distinction between lack of statutory authority and all the other listed grounds for reversing EPA action, including that such action violates the Constitution.

[01:00:05] Speaker 03:
The Act requires review of all such claims to occur after EPA promulgates a regulation in response to public comments.

[01:00:11] Speaker 11:
But is there any doubt here that the EPA is going to regulate CO2 emissions from existing

[01:00:18] Speaker 11:
plants.

[01:00:19] Speaker 11:
Is there any doubt in anyone's mind about that?

[01:00:22] Speaker 03:
The Administrator has said she plans to move forward with a final rule.

[01:00:26] Speaker 03:
But that is no different than... With a final rule?

[01:00:30] Speaker 03:
Is she that vague?

[01:00:31] Speaker 03:
With this rule, right?

[01:00:33] Speaker 03:
If we are talking about the Administrator's legal rationale, all we have to go on at this point is her tentative rationale that she published expressly for the purpose of seeking comment.

[01:00:42] Speaker 03:
So it might change.

[01:00:43] Speaker 03:
We don't know what her final legal rationale would say.

[01:00:46] Speaker 03:
I'm not going to speculate.

[01:00:48] Speaker 03:
She may decide we won't regulate here.

[01:00:50] Speaker 03:
That's a possibility.

[01:00:52] Speaker 03:
I would assume that she has meant what she said in statements she's made where she says she's confident she can move forward.

[01:01:00] Speaker 03:
But we certainly don't know at this point.

[01:01:02] Speaker 11:
What is the purpose of notice and comment in the face of statements like that?

[01:01:06] Speaker 03:
Is it a sham?

[01:01:06] Speaker 11:
It's a sham, right?

[01:01:07] Speaker 03:
Not at all.

[01:01:08] Speaker 03:
And it is not simply a question of whether the agency will change its mind or not.

[01:01:12] Speaker 03:
It is also because the statute is designed to ensure that when the agency puts out a proposed rule,

[01:01:18] Speaker 03:
it receives input from all of those who have an interest in that subject matter, all of their views, takes those under consideration.

[01:01:25] Speaker 03:
The statute requires the agency to respond to all the significant comments, and that ensures that when the court finally reviews the issue, that it's got the full context.

[01:01:33] Speaker 11:
What are we to do with statements that suggest that

[01:01:37] Speaker 11:
there will be no change, that the decision has been made, the rule will proceed as it has been proposed in the face of this notice and comment period.

[01:01:45] Speaker 03:
What do we make of that?

[01:01:46] Speaker 03:
I would suggest that those circumstances are no different than those in the purchase of the case, where the consent decree required the agency set a deadline to conduct the rulemaking and the agency had already been quoted as saying it intended to update the regulations.

[01:01:59] Speaker 03:
Those who wanted to intervene thought that those regulations would be more stringent and more costly to them and that therefore they were injured.

[01:02:05] Speaker 03:
And the court held that there was no Article III injury simply stemming from the conduct of the rulemaking process.

[01:02:10] Speaker 03:
It's the final rule.

[01:02:11] Speaker 11:
Did we have statements in Persepi that were like the administrator's statements here?

[01:02:16] Speaker 03:
I don't know if they were word for word the same, but I know that the claimants there pointed to statements the administrator has made as conclusive of the fact that, well, she's going to adopt ultimately a new rule, and it's going to be more stringent.

[01:02:27] Speaker 03:
And the court did not regard that as creating an immediately Article III case that was right at that time.

[01:02:33] Speaker 03:
The court said,

[01:02:33] Speaker 11:
Do you understand my concern?

[01:02:37] Speaker 11:
The government has argued to us, it's not ripe, it's not timely, because this isn't a final rule yet.

[01:02:44] Speaker 11:
We're involved, we're engaged in this process of notice and comment.

[01:02:48] Speaker 11:
Things may change, right?

[01:02:49] Speaker 11:
And that's the suggestion, things may change.

[01:02:51] Speaker 11:
And yet, we have these statements that are being made by the administrator that suggest, well, it doesn't look like anything's going to change.

[01:02:57] Speaker 11:
Better get ready.

[01:02:58] Speaker 03:
Do you understand my concerns?

[01:03:00] Speaker 03:
I think that's an over-reading of her statement.

[01:03:02] Speaker 03:
She herself has said, I'm confident we will move forward, but the proposal as proposed may not be what we move forward with.

[01:03:08] Speaker 03:
She told that to Congress.

[01:03:10] Speaker 03:
So again, ultimately, here the suggestion has been made that, well, this is just a case about the bare assertion of legal authority.

[01:03:17] Speaker 03:
But it's not.

[01:03:18] Speaker 03:
If you look at the briefs, what they're really concerned about is the content of the proposed rule, ultimately.

[01:03:22] Speaker 03:
in conjunction with the assertion of legal authority.

[01:03:25] Speaker 03:
We don't know, though, what a final rule would look like.

[01:03:27] Speaker 03:
We don't know what impact it would have on any of the stakeholders.

[01:03:30] Speaker 03:
We don't know what the legal construction would be.

[01:03:32] Speaker 03:
Why is EPA told states, get ready?

[01:03:37] Speaker 03:
It's coming.

[01:03:37] Speaker 03:
It's no different than any other program.

[01:03:39] Speaker 03:
The entire statute, ultimately, is based on rules that the agency adopts but that are largely implemented by states.

[01:03:45] Speaker 03:
There is a constant cooperation and communication

[01:03:48] Speaker 03:
as the agency moves forward with various rulemakings.

[01:03:51] Speaker 03:
It commonly sets a schedule and says, well, we expect that a final action would occur by this date or by the summer or by the winter.

[01:03:57] Speaker 03:
But in none of those circumstances has a court ever said, well, we're going to treat that as outcome determinative and simply adopt review now of a proposed rule when the agency has not yet taken a final rulemaking decision.

[01:04:08] Speaker 03:
And even if the administrator had reached a point where her thinking on one issue presented in the context of this rule was resolved, that's still not a rule-making decision.

[01:04:18] Speaker 03:
What the Act authorizes review of is the final decision addressing all issues.

[01:04:24] Speaker 03:
And it ensures, therefore, that the court reviews those questions at a time when it has the context in which to consider them.

[01:04:30] Speaker 03:
We've seen examples in recent cases before this Court, such as Coalition for Responsible Regulation, the Whitman case some years ago, where what seemed like a clear issue of statutory interpretation below became an entirely different judgment above.

[01:04:44] Speaker 03:
It's difficult even when you have the full context to say that one issue is so simple that it can be decided readily.

[01:04:50] Speaker 03:
It's that much more difficult when you're making a decision based on a tentative legal analysis.

[01:04:54] Speaker 03:
Is that the nature of the comments she's made to the public?

[01:04:56] Speaker 03:
Is that tentative?

[01:04:58] Speaker 03:
I don't think any of her comments have talked about specifically, have sort of said, well, this is exactly what the final rule is going to be that I would sign.

[01:05:05] Speaker 03:
All she has said is that I'm confident we will move forward.

[01:05:08] Speaker 03:
But she still has to prepare her final legal rationale.

[01:05:10] Speaker 05:
How about her answer to Senator Wicker, who asked her, Section 11D says if it's regulated under 112, you can't regulate it.

[01:05:19] Speaker 05:
And her answer was, I think that the framing of the legal argument is incorrect, Senator.

[01:05:26] Speaker 05:
I know she's not a lawyer.

[01:05:27] Speaker 05:
I guess she's not a lawyer.

[01:05:28] Speaker 05:
I don't know.

[01:05:29] Speaker 03:
Well, I think, again, that is still not the articulation of her final legal rationale.

[01:05:34] Speaker 03:
And I guess I would also point out this is not a case.

[01:05:36] Speaker 03:
This is a case dealing with a charge that the Supreme Court has recognized Congress clearly has to decide whether and how to regulate greenhouse gases.

[01:05:46] Speaker 03:
So the question of whether it may do so under this particular section of the statute in the end

[01:05:52] Speaker 03:
is still a question that should be left to the administrator to resolve in the first instance in the course of the rulemaking.

[01:05:57] Speaker 03:
There's nothing about that question that makes it different from all others and requires that it be reviewed differently than how Congress designed the statute to work.

[01:06:04] Speaker 03:
And in fact, the city of Arlington is an important case on that point because the court there specifically held that there is no difference, no meaningful difference for purposes of the validity of agency action between a claim that an agency is exceeding its authority and a claim that it's improperly implying its authority.

[01:06:21] Speaker 03:
They're all one in the same.

[01:06:23] Speaker 03:
In the end, it's always a question of whether the agency has gone beyond what Congress permitted it to do.

[01:06:27] Speaker 03:
But under 7607, those claims are always heard after the agency takes a final rulemaking action.

[01:06:33] Speaker 05:
Let me ask you about 7607.

[01:06:34] Speaker 05:
Do you have it in front of you?

[01:06:36] Speaker 05:
I do.

[01:06:37] Speaker 05:
OK.

[01:06:38] Speaker 05:
That first sentence, which is the one we're under, does not say other final action.

[01:06:44] Speaker 05:
It talks about promulgating the standards under 711

[01:06:48] Speaker 05:
which is where we are, and then a bunch of other standards and controls and prohibitions and determinations.

[01:06:56] Speaker 05:
And then it says, are any other nationally applicable regulations promulgated or final action taken by the administrator?

[01:07:04] Speaker 05:
And then you look down at the second sentence, which is the one controlling the state implementation plans, and that does say, or any other final action.

[01:07:15] Speaker 05:
It seems

[01:07:16] Speaker 05:
unless that's a scrivener's error, it seems as if the first sentence in beginning by saying a petition for review of action in promulgating, no final there, and in promulgating, at least to me, indicates in the process of promulgating it.

[01:07:39] Speaker 05:
And the definition of promulgate actually has two.

[01:07:43] Speaker 05:
One that would support the petitioners to make known or public the terms of a proposed law.

[01:07:50] Speaker 05:
There's also another definition that helps the EPA.

[01:07:54] Speaker 03:
Your Honor, I would say that that sentence does not govern here.

[01:07:57] Speaker 03:
Which one does, then?

[01:07:59] Speaker 03:
If you're referring to the sentence, a petition for review of the administrator's action in approving or promulgating any implementation under 7411, I believe the sentence that is controlling here is earlier.

[01:08:10] Speaker 03:
That's right.

[01:08:11] Speaker 03:
Any standard of performance or requirement.

[01:08:12] Speaker 05:
What I'm asking you is this.

[01:08:14] Speaker 05:
The first sentence, which is the one we're under, does not say other final action the way the second sentence does, which to me indicates

[01:08:24] Speaker 05:
that unless it's a scrivener's error, they left out other for some reason in the first one.

[01:08:31] Speaker 03:
I'm reading it.

[01:08:33] Speaker 03:
Petition for review of action of the administrator in promulgating

[01:08:36] Speaker 03:
and then skipping text that's clearly not applicable that relates to 7412.

[01:08:39] Speaker 03:
Any standard of performance or requirement under 7411 of this title, I believe this proposal is a standard of performance or requirement under 7411, comma, or any other nationally applicable regulations promulgated or other final action taken.

[01:08:53] Speaker 03:
Those orders are not referring to something already listed.

[01:08:57] Speaker 03:
They're referring to something else.

[01:08:59] Speaker 05:
You just said, other, final action.

[01:09:02] Speaker 05:
It doesn't say that.

[01:09:03] Speaker 03:
Well, no, I didn't.

[01:09:03] Speaker 03:
I said, or any other nationally applicable regulations promulgated or final action taken.

[01:09:09] Speaker 03:
All right.

[01:09:09] Speaker 05:
I heard you say, or any other.

[01:09:10] Speaker 03:
But my point would be that there would no be, if you have already listed a specific type of national promulgated rule that can be reviewed upon promulgation, why would you then have meant to refer to it again in the phrase that says, or any other?

[01:09:23] Speaker 03:
Other must mean something else.

[01:09:24] Speaker 05:
All right.

[01:09:24] Speaker 05:
Why do you do it in the second sentence then?

[01:09:27] Speaker 03:
Well, we have listed in our brief examples of actions that the administrator may take that are final but that don't go through notice and comment.

[01:09:35] Speaker 03:
I can look at my brief and give you the example.

[01:09:38] Speaker 05:
All right.

[01:09:38] Speaker 05:
Well, let me turn to this 60-day requirement that you say keeps the innovators out because they filed their petition for review after 60 days.

[01:09:52] Speaker 05:
of the notice in the Federal Register.

[01:09:55] Speaker 05:
Now you first say in your brief on page 16 that none of the interveners can stand in Murray's shoes because they did not file within 60 days after the publication on June 18th of last year.

[01:10:08] Speaker 05:
Then on page 22, you say

[01:10:14] Speaker 05:
This is the argument Murray makes about the presumption of finality.

[01:10:20] Speaker 05:
Were such a precedent established, payments that disagree with EPA's legal interpretations in any future proposed rule

[01:10:28] Speaker 05:
likely would be forced to sue within 60 days of publication of the proposal.

[01:10:33] Speaker 05:
Otherwise, it'd be deemed untimely.

[01:10:35] Speaker 05:
Now, on the one hand, you seem to be saying the intervener's out of time because they filed after 60 days.

[01:10:42] Speaker 05:
On the one hand, on the other hand, you say they can't be forced to file within the 60 days.

[01:10:48] Speaker 03:
I think there's a couple of different issues here, and let me try to address all of them.

[01:10:53] Speaker 03:
If we're talking about Article III rightness,

[01:10:56] Speaker 03:
This Court has already held in the Coalition for Responsible Regulation case that it was the promulgation of a final rule, not merely its proposal, that made issues right.

[01:11:05] Speaker 03:
But there specifically the question was, the Court held that disputes with EPA's interpretation of the Act's permitting triggers for the PSD program did not constitutionally ripen until EPA promulgated the tailpipe rule as a final regulation.

[01:11:17] Speaker 03:
That's 684 F-third at 131.

[01:11:20] Speaker 03:
And the consequence of that was that the six-day limitations period did not begin to run until final rule promulgation.

[01:11:27] Speaker 03:
And as the courts observed, we don't have, on the other hand, any case in which the court has held that a proposed rule created an Article III case or controversy.

[01:11:34] Speaker 03:
So that's one issue.

[01:11:35] Speaker 03:
And that deals with the proposed rule.

[01:11:37] Speaker 03:
In terms of the settlement agreement thing, the states have argued that this agreement itself, as soon as EPA entered it, was a reviewable final action because EPA had completed the 113G process.

[01:11:48] Speaker 03:
And what we said about that is, well,

[01:11:51] Speaker 03:
EPA announced the finalization of that agreement after the MATS rule had already been promulgated and was on the books.

[01:11:57] Speaker 03:
Therefore, if the states have the objection that this agreement required EPA to do something unlawful,

[01:12:03] Speaker 03:
And they say that EPA was contractually obligated to do so, then it seems that their claim had ripened once EPA announced the finalization of the agreement.

[01:12:11] Speaker 03:
And yet, they did not sue within 60 days.

[01:12:14] Speaker 03:
The reality is, we think that's because they don't really have an objection to the settlement agreement.

[01:12:18] Speaker 03:
What they're really concerned about is the proposed rule.

[01:12:20] Speaker 03:
And they didn't invoke the All Writs Act to seek extraordinary relief.

[01:12:24] Speaker 03:
But if they had, we think that that claim would be subject to the same problems we deserved.

[01:12:27] Speaker 05:
I'm talking about your red brief in Murray, which has nothing to do with the settlement agreement.

[01:12:31] Speaker 05:
But that's OK.

[01:12:32] Speaker 05:
Go on.

[01:12:32] Speaker 03:
Well, in terms of Murray's challenge, again, we would say that they have not shown that, first of all, their writ would clearly enlarge the court's jurisdiction.

[01:12:41] Speaker 03:
Second, they have not shown that the remedy afforded to them and exclusively afforded to them by Congress in 7607 is inadequate.

[01:12:49] Speaker 03:
It has proven adequate for all sorts of rules that were also of great economic and environmental significance, and that also involved claims that the agency was acting unlawfully.

[01:12:58] Speaker 03:
They've not shown why it is somehow uniquely inadequate here.

[01:13:02] Speaker 03:
Cases they cited like McCulloch and Leadham v. Kine are cases in which there was no remedy available to deal with the statutory right or protect the statutory right at issue.

[01:13:10] Speaker 03:
And those cases did not even involve the All Roots Act.

[01:13:13] Speaker 03:
Cases such as Colonial Times that was mentioned earlier are cases in which there was an issue below that would have evaded review.

[01:13:20] Speaker 03:
These issues, statutory authority questions, can never evade review.

[01:13:24] Speaker 03:
It is fair game once the agency takes a final rulemaking action and they can seek to stay that rule, they can seek expedited relief of that rule if the circumstances warrant.

[01:13:33] Speaker 03:
But the issue would be available for consideration by the court at that time in the manner Congress intended.

[01:13:40] Speaker 03:
And I would also point the court to the case Aluminum Company of America, which again, this court in that case held that there was no exception to the finality doctrine merely because the claim was that the agency exceeded its statutory authority.

[01:13:54] Speaker 03:
In that case, it assumed authority over pending proceedings in state agency in Texas.

[01:14:00] Speaker 03:
And the court said that that was not final yet.

[01:14:02] Speaker 03:
And it would be after the conclusion of those proceedings that the case could then be reviewed in federal court.

[01:14:08] Speaker 03:
I would refer the Court as well to the Ayuda case cited in our brief, in which this Court, although vacated on other grounds, held that the writ cannot be used before a case becomes right or before an agency action is final.

[01:14:20] Speaker 03:
Otherwise, it would be easy to bypass those jurisdictional limitations in every case.

[01:14:27] Speaker 03:
I see my time is running out if I may briefly conclude.

[01:14:30] Speaker 03:
The Court should dismiss these petitions and allow both the agency's decision-making process

[01:14:34] Speaker 03:
and the normal judicial review process to move forward at the time and in the manner that Congress intended.

[01:14:39] Speaker 05:
Thank you.

[01:14:40] Speaker 01:
Good morning.

[01:14:53] Speaker 01:
Your Honors, I'd like to make just a couple of points in response to what petitioners have said.

[01:14:58] Speaker 01:
But before I turn to those, I think there's one threshold issue that merits some discussion, and that is the limited nature of the question that's before the Court today.

[01:15:06] Speaker 01:
The question the Court has to answer, if it reaches the merits, if it gets past all the jurisdictional hurdles that my colleague has addressed, is not unlike in most cases addressing EPA action,

[01:15:17] Speaker 01:
It's not whether what the agency has done or said is reasonable, and it's certainly not whether what petitioners, how they read the statute is reasonable.

[01:15:26] Speaker 01:
The question is limited to whether EPA gets its ordinary opportunity to interpret the statute and to tell this court not only whether it thinks it has authority to regulate power plant carbon dioxide emissions, but why it has that authority.

[01:15:42] Speaker 01:
And Your Honors, I think that if there's even a scintilla of a shred of potential ambiguity in Section 7411D, EPA has to be given that chance.

[01:15:52] Speaker 01:
I think we're well beyond a shred here, for all the reasons we've explained in our brief.

[01:15:56] Speaker 01:
We have two different amendments.

[01:15:58] Speaker 08:
Scintilla of a shred of ambiguity?

[01:16:00] Speaker 08:
That's a new standard for me.

[01:16:01] Speaker 08:
Scintilla of a shred of ambiguity?

[01:16:03] Speaker 08:
Everything in the English language is ambiguous under that.

[01:16:06] Speaker 01:
Well, Your Honor, what I'm saying is reflecting the weird posture we're in here.

[01:16:09] Speaker 01:
We're asking about, do we get to do our normal job of interpreting the statute?

[01:16:14] Speaker 01:
And I think that if there's a potential for ambiguity, then you have to let EPA explain whether it thinks there is ambiguity and why.

[01:16:21] Speaker 01:
And that's what we're asking the court to let EPA do here.

[01:16:25] Speaker 01:
As we've said, the sources for that ambiguity, we have two differing amendments.

[01:16:29] Speaker 01:
We've got many ambiguities even in the House amended text.

[01:16:32] Speaker 11:
But even if we set all the... But according to Professor Tribe, we don't have that ambiguity because we shouldn't be looking at the Senate version as a source of law at all.

[01:16:42] Speaker 11:
So that's not a matter of ambiguity.

[01:16:44] Speaker 11:
That's a matter of understanding how a bill becomes a law, right?

[01:16:48] Speaker 11:
So what's your response to

[01:16:50] Speaker 01:
Well, my response is that, with due respect, I think he's flat out wrong there.

[01:16:54] Speaker 01:
The Supreme Court has said in the stuff, uh, stuff on the United States in 1943, the very meaning of prima facie is that the code cannot prevail over the statutes at large where there's an inconsistency.

[01:17:05] Speaker 01:
There's an inconsistency here.

[01:17:07] Speaker 01:
We have to look at both.

[01:17:09] Speaker 09:
EPA is not using- Because of conflict or inconsistency?

[01:17:11] Speaker 01:
Well, that's one of the things EPA has to decide, Your Honor.

[01:17:15] Speaker 01:
You know, in the past, and potentially I've pointed to a lot of past statements from EPA, in the past, everybody has always agreed that the statute was ambiguous because of the Senate amendment.

[01:17:26] Speaker 01:
That was, petitioners agreed with that in 2005, 10 years ago, and I have a hard time seeing how there's no potential for ambiguity now, when 10 years ago everybody thought this was ambiguous.

[01:17:37] Speaker 01:
But now, you know, people have pointed out to EPA in comments, in light of that argument, that the House of Amendment actually has a lot more ambiguity than EPA has maybe ever recognized, and EPA has to have the chance to address those arguments as well.

[01:17:50] Speaker 01:
So, you know, although petitioners surely wish it had been, Title 42 of the Code hasn't been enacted into positive law.

[01:17:57] Speaker 01:
And unless or until that happens, it's the statutes that say what the law is.

[01:18:01] Speaker 01:
It's not EPA, it's not petitioners, and it's certainly not the Office of Law Revision Council, which is a mere functionary of the Speaker of the House.

[01:18:08] Speaker 01:
So we can't just ignore the Senate amendment.

[01:18:11] Speaker 01:
It's not an illusion.

[01:18:12] Speaker 01:
It is there.

[01:18:13] Speaker 01:
Any reasonable interpretation of the statute has to deal with that fact, and EPA should be given the chance to reconcile those two amendments, as this Court has said is the preferred course in the Spencer County case.

[01:18:24] Speaker 01:
And most recently in Chialaba, you know, even setting aside the Chevron application issue, I think almost every opinion contained the idea that, well, before we decide there's a conflict, we should try to reconcile

[01:18:37] Speaker 01:
the statutory language if possible.

[01:18:39] Speaker 01:
EPA should be given that chance here.

[01:18:42] Speaker 01:
Now, second, Your Honors, even if we're talking about the text of 7411D as amended by the House only, I think there's a lot of reasons why a reading that would bar EPA from regulating non-hazardous pollutants under 7411D simply because hazardous pollutants from that first category are regulated under 7412.

[01:19:01] Speaker 01:
There's a lot of reasons why that might not be a reasonable reading, let alone the only possible reading.

[01:19:07] Speaker 01:
It's inconsistent with the overall scheme set forth in the Act, where Congress created three programs to address these three different categories of pollutants.

[01:19:17] Speaker 08:
That argument... If we just had the Supreme Court's statement in footnote seven, that would be a problem for you.

[01:19:23] Speaker 01:
I don't think that statement really is a problem, Your Honor.

[01:19:26] Speaker 01:
Let me tell you why.

[01:19:27] Speaker 01:
There's a couple of reasons.

[01:19:28] Speaker 01:
First, nobody briefed this issue in AEP.

[01:19:30] Speaker 01:
There's no indication that the Court was aware that we had two different amendments to the code language.

[01:19:36] Speaker 01:
Now, beyond that, though, the main thrust of the AEP decision

[01:19:41] Speaker 01:
was that 7411D, not state law, is the appropriate mechanism for regulating carbon dioxide emissions from existing power plants.

[01:19:50] Speaker 01:
And the court said that that decision was issued after the mercury and air toxics rule was proposed, so after EPA had proposed to regulate power plants under 112.

[01:20:00] Speaker 08:
Now, if we look at the text... Right, and those are good arguments about not reading an isolated footnote too broadly, I suppose, but that footnote on its own would be something if we were to reach the merits of... Well, let me try to explain to you why I really still don't think it would be something there.

[01:20:16] Speaker 08:
Even on its face.

[01:20:17] Speaker 01:
Even on its face.

[01:20:18] Speaker 01:
I'm looking at the language of it right now.

[01:20:21] Speaker 01:
So, the foot...

[01:20:24] Speaker 01:
So the footnote seems to mostly paraphrase the US Code on a first glance.

[01:20:28] Speaker 01:
But in fact, it uses pollutant-specific language.

[01:20:31] Speaker 01:
In the middle, it has a phrase of if existing stationary sources of the pollutant in question are regulated.

[01:20:38] Speaker 01:
But moreover, it then, in the next breath, refers to both the National Ambient Air Quality Standard Program, the Criteria Pollutant Program, and the Hazardous Air Pollutants Program.

[01:20:47] Speaker 01:
And it refers to them like those two exclusions work the same way.

[01:20:51] Speaker 01:
Well, if petitioners are right about what the Supreme Court was saying in that footnote, then the Supreme Court got it wrong, at least in regard to criteria pollutants, because nobody disagrees that the criteria pollutant exclusion is a pollutant-specific exclusion.

[01:21:05] Speaker 01:
So either the Supreme Court got it wrong or we're way over reading that footnote, and that's what I think we're doing here.

[01:21:15] Speaker 01:
Your Honor, I'd also like to point out that their reading is in tension with Section 7412D7, which was also enacted by Congress in 1990.

[01:21:23] Speaker 08:
I'm probably moving away from where you are right now, but on the Senate amendment, what about the statement of the Senate managers?

[01:21:30] Speaker 01:
Again, I think we are turning a true molehill into a mountain there.

[01:21:36] Speaker 08:
Well, I'm not certain what to do with that, frankly.

[01:21:40] Speaker 08:
The potentially conflicting amendments that it seems, if you look at anything beyond the actual text, and I realize there's one that you just look at the actual text and stick with that, but if you look at anything beyond the actual text,

[01:21:58] Speaker 08:
It does seem that the process was intended for the Senate to recede on that amendment.

[01:22:05] Speaker 01:
Well, OK, so a couple of things about that.

[01:22:07] Speaker 01:
First off, this court addressed the same statement in the EDF VEPA case and said that it can't undermine the statute's language.

[01:22:15] Speaker 01:
And the reason the court gave was that this is not, unlike I think somebody on the other side incorrectly said, something that was signed onto by the conferees.

[01:22:23] Speaker 01:
This is not a conference statement.

[01:22:25] Speaker 01:
It's a statement of the Senate managers only because they weren't happy with what was in the conference statement.

[01:22:30] Speaker 01:
But more importantly, that statement, it's this broad and bland statement that the Senate proceeds to the House in regards to the content of Section 108, which contained a lot of stuff, a lot of it about transportation provisions.

[01:22:43] Speaker 01:
So even if we assume that the face value of that just means that the Senate doesn't disagree with this stuff being in the bill,

[01:22:50] Speaker 01:
But that statement says nothing about the separate Section 302.

[01:22:55] Speaker 01:
And in fact, that section isn't covered at all in the Senate manager's statement.

[01:22:58] Speaker 01:
So we can't assume that in saying this about 108, they're saying, oh, and what we did in 302 was wrong also.

[01:23:04] Speaker 01:
And if somebody thought what was in 302 was wrong, then it wouldn't be in the bill.

[01:23:09] Speaker 01:
We have to assume that just as the Senate receded to the House,

[01:23:14] Speaker 01:
In regards to 108, the House receded to the Senate in regards to 302, or it wouldn't be in the bill, because recedes just means we withdraw our disagreements with this section.

[01:23:24] Speaker 01:
So I think we're way over reading that as well.

[01:23:26] Speaker 01:
And I did want to point the court to 7412D7, where Congress in 1990 said that the Section 112 program isn't supposed to diminish or replace Section 7411 standards or requirements.

[01:23:40] Speaker 01:
And that shows that Congress was explicitly contemplating that the standards promulgated under both sections would continue to apply to the same sources.

[01:23:49] Speaker 01:
And finally, I think their reading is also in tension with the legislative history that contains absolutely no evidence that Congress intended to restrict the scope of Section 7411D in the dramatic way that they are saying it did.

[01:24:03] Speaker 01:
In fact, the Congressional Research Service itself, in 1993, just three years after the amendments, characterized the two differing amendments as duplicative language that was trying to do the same thing.

[01:24:16] Speaker 01:
Now, fissures have a theory about why Congress would want to do what they think it was doing, even though it never said anything about it.

[01:24:23] Speaker 01:
And this is their double regulation theory.

[01:24:25] Speaker 01:
But first, this is revisionist history.

[01:24:29] Speaker 01:
Sorry.

[01:24:29] Speaker 01:
There's nothing on which it's based in the legislative history.

[01:24:32] Speaker 08:
Well, the absence of legislative history, though, could cut both ways here in the bigger picture of the absence of any indication of this huge grant of authority.

[01:24:40] Speaker 08:
the kind of elephant and mouse holes origination by the Supreme Court, right?

[01:24:46] Speaker 01:
Well, I think the elephant and the mouse hole really does apply because, you know, cutting back to almost nothing the scope of 7411D would be quite an elephant.

[01:24:55] Speaker 01:
And what we do have consistent throughout the legislature... An elephant either way.

[01:24:59] Speaker 01:
Sorry?

[01:24:59] Speaker 08:
It's an elephant either way, yeah.

[01:25:01] Speaker 01:
But what we do have consistent throughout the legislative history is this idea that Congress was unhappy with what EPA had done so far in 1990 and wanted to cover more pollutants under more programs.

[01:25:12] Speaker 01:
There's nothing in there that, despite having that consistent intent in regard to haps and acid rain, oh, and by the way, we're trying to eviscerate the 7411D program at the same time, even though we're not saying that.

[01:25:24] Speaker 01:
So again, I just think the legislative history leans heavily towards a reading of 7411D that doesn't completely undo it.

[01:25:31] Speaker 11:
If we would agree with you that this is Chevron case, what's the intelligible principle that reconciles these two?

[01:25:44] Speaker 01:
Well, it's not so much.

[01:25:46] Speaker 01:
I don't think it's really a question of intelligible principle there.

[01:25:48] Speaker 01:
I think, you know, if we're talking about non-delegation, we have a clear intent on the part of Congress to delegate the Clean Air Act and its administration and its interpretation to the EPA, and this Court has recognized that in a number of its cases.

[01:26:01] Speaker 01:
I think, though, under the Supreme Court's recent decision in Chilaba, I think the Court has spoken clearly and five justices think that Chevron still applies even if we're talking about a potential internal conflict.

[01:26:18] Speaker 01:
between two phrases in the same provision, because that's what was at issue in Shia Lava.

[01:26:23] Speaker 01:
It was actually pretty analogous, I think.

[01:26:26] Speaker 01:
Not quite on point, but they were talking about the language within the same provision that's in the point Janice faced in opposite directions.

[01:26:33] Speaker 01:
And we have five justices who think Chevron still applies there.

[01:26:36] Speaker 01:
So I think that is clearly still the law of the land in regard to that issue.

[01:26:40] Speaker 01:
But even if one disagrees with that, as, for example, the Chief Justice did, what a number of the justices also articulated is this idea that we should try to reconcile apparently conflicting language before we decide that there's a real conflict.

[01:26:56] Speaker 01:
And I think that's what EPA should be allowed to do here, to see if it can reconcile that language and use its authority that Congress has given it to do that.

[01:27:07] Speaker 08:
And that is a splintered opinion, obviously.

[01:27:10] Speaker 08:
To take statements out of a splintered opinion and transform them to this different context is also something we'd have to be careful about doing that kind of thing, too.

[01:27:21] Speaker 01:
Yes, but, you know, pointing to another aspect of the Chevron question here, what petitioners are really asking you to do, Judge Kamenot, is to bifurcate the Chevron analysis.

[01:27:30] Speaker 01:
They're saying, do Chevron 1 now agree with us, and you won't have to do Chevron 2.

[01:27:35] Speaker 01:
I really don't think there's any case law out there that suggests that's appropriate, and in fact,

[01:27:40] Speaker 01:
We've got case law like the Entry G case, where the courts basically said, you know, we don't necessarily have to do both steps fully.

[01:27:48] Speaker 01:
You know, if the agency interpretation is reasonable, we're not going to go through step one.

[01:27:52] Speaker 01:
And if Congress has spoken directly, and it's as clear as they think it is, then any agency contradicting it, interpretation that contradicts what Congress has said, would be unreasonable.

[01:28:01] Speaker 01:
So I don't think it's appropriate to bifurcate the Chevron analysis in the way that they're asking you to here.

[01:28:12] Speaker 01:
Now, finally, I'd briefly just like to address the comments on the constitutional issues raised by Council for Peabody.

[01:28:21] Speaker 01:
Council for Peabody suggests that the proposal raises some constitutional issues, and this court should forbid EPA from moving forward to avoid those issues.

[01:28:30] Speaker 01:
I think this turns the doctrine of constitutional avoidance on its head.

[01:28:34] Speaker 01:
That canon of construction cautions courts to avoid reading statutes

[01:28:38] Speaker 01:
to unnecessarily create constitutional issues.

[01:28:41] Speaker 01:
It does not support the proposition that courts should prohibit agencies from completing an administrative rulemaking process because the product, the thing they do at the end, might, depending on what's in it, raise a constitutional issue.

[01:28:55] Speaker 11:
In fact, isn't the notion behind it that you wait as long as possible to let the dust settle so that you know what you're deciding, right?

[01:29:03] Speaker 01:
I think that's correct, Your Honor.

[01:29:04] Speaker 08:
And if the final rule in fact... I think what they're saying is that the interpretation that has so far been articulated would create serious federalism concerns and therefore to the extent there's a choice in your view between how you interpret the statute, well don't interpret it to cause these

[01:29:27] Speaker 08:
serious federalism concerns.

[01:29:29] Speaker 08:
I'm oversimplifying, but I think that's their argument, and that's an argument the Supreme Court has accepted in cases like Bond and others.

[01:29:35] Speaker 08:
Again, wildly different contexts, but the principles out there.

[01:29:38] Speaker 01:
Well, but, Your Honor, so the federalism concerns that they've articulated here, and I do feel like I have to point out, these are arguments raised by an intervener.

[01:29:46] Speaker 01:
They're not arguments raised by the petitioners.

[01:29:47] Speaker 08:
I don't really think... If they're good, they're good.

[01:29:51] Speaker 08:
If they're not good, they're not good.

[01:29:52] Speaker 01:
Well, let me tell you why I think they're not good, okay?

[01:29:55] Speaker 01:
So, Council for Peabody spoke about vertical and horizontal, and I'm not even sure which was which.

[01:30:00] Speaker 01:
But talking about the one federalism issue he seemed to be articulating was this idea that EPA shouldn't be able to choose, that it's taking Congress's role if it's choosing between the Senate and the House amendments.

[01:30:11] Speaker 01:
And as I just said, I think we've got the Supreme Court sort of rejecting that idea recently in the Shia Laba case.

[01:30:17] Speaker 01:
And, you know, EPA isn't choosing here.

[01:30:20] Speaker 01:
It's just recognizing what is there in the statutes at large.

[01:30:25] Speaker 08:
The federalism issue, I'm not sure if Xialaba is really going to get to that, right?

[01:30:29] Speaker 08:
Because it's an overarching principle of, okay, maybe in the ordinary course, you'd have two interpretations.

[01:30:36] Speaker 08:
That would be plausible.

[01:30:39] Speaker 08:
But when you load one of them with federalism concerns, that now becomes an unreasonable choice, taking that out of the Xialaba box.

[01:30:48] Speaker 01:
But the federalism concerns that are being loaded here, those all deal with the content of the rule.

[01:30:54] Speaker 01:
And we can't analyze what those are or whether they exist until we know what's in the final rule.

[01:31:00] Speaker 01:
And I think it's very unfair to suggest that what might be in the final rule, whether that might raise constitutional issues, should be here.

[01:31:07] Speaker 08:
I totally understand you on the finality point.

[01:31:10] Speaker 08:
I completely get that.

[01:31:12] Speaker 08:
You're just talking about what, if we were on the merits

[01:31:16] Speaker 01:
Well, I'm just saying, you know, he seems to be raising a 10th Amendment issue.

[01:31:19] Speaker 01:
We can't have a meaningful conversation about that right now.

[01:31:23] Speaker 01:
We don't know what's in the proposal.

[01:31:24] Speaker 01:
Right.

[01:31:24] Speaker 08:
So that's just stumbling down on the finality, to understand.

[01:31:27] Speaker 01:
OK.

[01:31:27] Speaker 11:
But in regards to the idea... I raise that point as an invitation to Professor Tribe to deal with it, to deal with it.

[01:31:32] Speaker 11:
The constitutional avoidance doctrine seems to cut against the jurisdictional argument here.

[01:31:38] Speaker 11:
But you haven't been decided yet, right?

[01:31:41] Speaker 01:
Yeah.

[01:31:42] Speaker 01:
And I think we can't have a meaningful discussion about these issues until we have a final rule here.

[01:31:48] Speaker 01:
And I would, again, reiterate that these weren't raised by pedestrians in their briefs.

[01:31:53] Speaker 01:
And as a result, they haven't been briefed, Your Honor.

[01:31:56] Speaker 01:
I mean, if this Court is really going to decide this based on these constitutional issues, then I would suggest that supplemental briefing would be needed on those issues.

[01:32:05] Speaker 01:
I see I'm over time, so I'll just conclude briefly.

[01:32:08] Speaker 01:
Your Honors, if this statutory provision, with its convoluted structure, with its vague terms, and with its two amendments to the relevant text, if this is an ambiguity, I really think it begs the question, what is?

[01:32:19] Speaker 01:
But the Court doesn't have to decide how ambiguous Section 7411D is or whether any of the readings that have been suggested by EPA, by petitioners, or otherwise are reasonable.

[01:32:30] Speaker 01:
The only question for the Court right now is whether EPA should get its ordinary opportunity to interpret the statute to tell you not only whether it thinks it has authority here, but why it thinks it has authority here.

[01:32:42] Speaker 01:
Thank you.

[01:32:43] Speaker 05:
Are you still on track for June of this year?

[01:32:46] Speaker 01:
Your Honor, actually, I'm glad you asked that.

[01:32:49] Speaker 01:
The administrator had put out a statement saying it would be this summer.

[01:32:52] Speaker 01:
So it might not be June.

[01:32:54] Speaker 01:
We might be looking at three months instead of two or something like that.

[01:32:56] Speaker 01:
But it will be this summer, is the thinking.

[01:33:00] Speaker 01:
And that also brings up an interesting issue of the interplay with the magical decision, which will be in June.

[01:33:05] Speaker 01:
So by the time we have a final rule in challenging it, we'll know what's happening under section 112.

[01:33:12] Speaker 01:
And I think that's worth noting as well.

[01:33:14] Speaker 01:
Thank you.

[01:33:15] Speaker ?:
OK.

[01:33:17] Speaker 05:
Costello.

[01:33:28] Speaker 04:
May it please the court, Morgan Costello for respondent intervener states.

[01:33:32] Speaker 04:
I'd like to summarize two key procedural points related to finality and rightness and to address the legal relevance of the settlement agreement challenged by the West Virginia petitioners.

[01:33:40] Speaker 04:
The fundamental flaw here is that petitioners' claims are premature, and there is nothing truly exceptional about their claims that warrants unprecedented relief that they seek.

[01:33:49] Speaker 04:
On finality, petitioners' statutory authority claims are not unique.

[01:33:53] Speaker 04:
Petitioners' challenges are not different from many cases before this Court in which parties challenged a final rulemaking or other final action as an excess of an agency's statutory authority.

[01:34:04] Speaker 04:
Some recent examples involving claims

[01:34:07] Speaker 04:
Just with EPA, that EPA exceeded its statutory authority include the EME Homer City case, National Association of Clean Water Agencies, and the Mingo Logan Cole case.

[01:34:18] Speaker 04:
All of these cases, even those that involve large, complicated rulemakings, were heard and decided by this court only after EPA had promulgated a final rule.

[01:34:27] Speaker 04:
This court has never before allowed a party to stop a rulemaking midstream.

[01:34:31] Speaker 04:
and they have not identified any standards to separate this case from those or that would prevent others from seeking to file similar premature claims to non-binding proposed regulations.

[01:34:45] Speaker 04:
The legal authority here

[01:34:48] Speaker 04:
it has been stated in definitive terms, it does not make their claims unique either because, like most agencies, EPA is required to set forth in its proposed regulations the legal interpretations underlying its proposed rule.

[01:35:03] Speaker 04:
And under a petitioner's theory, anybody who disagreed with those legal interpretations could file a premature challenge.

[01:35:10] Speaker 04:
The petitioners are challenging an agency's legal interpretation of its authority to act at all also does not distinguish their claims.

[01:35:17] Speaker 04:
As Justice Scalia explained in the City of Arlington case, that distinction is merely one of semantics.

[01:35:25] Speaker 04:
The statutory authority issue raised by petitioners should be reviewed under the Chevron framework with the benefit of the agency's definitive statutory construction and their final reasoning after considering all comments and promulgating a final rule.

[01:35:38] Speaker 04:
As to rightness, the petitioner's allegations of hardship also are not a basis to distinguish this case.

[01:35:44] Speaker 04:
Petitioner's allegations stem from voluntary, not mandated actions.

[01:35:48] Speaker 04:
When a rule is proposed, it cannot, as a matter of law, legally obligate anyone to do anything.

[01:35:54] Speaker 04:
States cannot make their claims right through their own voluntary actions.

[01:35:58] Speaker 04:
And it is common for states to spend resources analyzing a proposed rule

[01:36:03] Speaker 04:
preparing comments on that rule, and to begin to prepare to comply with any requirements they may have to meet once the rule is finalized.

[01:36:12] Speaker 04:
If participation in the administrative rulemaking process and advanced planning were basis for being able to bring a challenge to a proposed rule, those challenges would be brought all the time.

[01:36:21] Speaker 04:
As a practical matter, states are not forced to act now.

[01:36:25] Speaker 04:
The claims of hardship are primarily related to concerns about the timeline for preparing state plans and getting compliance deadlines, and those concerns are overblown.

[01:36:36] Speaker 04:
EPA specifically sought comments from states on the plans to middle and compliance deadlines, so those deadlines are all subject to change in the final rule.

[01:36:44] Speaker 04:
The rule, as proposed, includes provisions that would allow states to seek extensions of time up to two years if they need more time to prepare a complete plan.

[01:36:53] Speaker 04:
The rule also provides for long implementation periods and specifically builds on energy and environmental planning efforts that states and utilities are already undertaking.

[01:37:06] Speaker 04:
The Clean Out Air Act is replete with examples of EPA setting ambitious goals for states and for states working with EPA and meeting them.

[01:37:16] Speaker 04:
And the state respondent interviewers support this rule and think it is a workable rule.

[01:37:21] Speaker 04:
Once it is finalized, petitioners like everyone else can obtain review of the rule in the normal course.

[01:37:26] Speaker 04:
And like every other challengers who believe that they may be irreparably harmed by a final rule, they can file a motion for a stay in which they must demonstrate all the required elements, this court should not depart from that standard practice here.

[01:37:40] Speaker 04:
Finally, with regards to the West Virginia petitioners, they cannot avoid these finality and rightness problems by challenging the settlement agreement for two reasons.

[01:37:49] Speaker 04:
First, they're not harmed by the agreement.

[01:37:52] Speaker 04:
The states intervenors are not here because they think that the agreement imposes binding obligations on EPA to promulgate final standards under Section 111B.

[01:38:03] Speaker 04:
The settlement agreement merely agreed to a rulemaking schedule.

[01:38:07] Speaker 04:
It did not commit EPA to promulgating any final standards.

[01:38:11] Speaker 04:
It didn't commit to anything substantive, and it did not take away any procedural rights.

[01:38:16] Speaker 04:
It merely agreed to take some final action.

[01:38:20] Speaker 04:
EPA still has discretion as to what that final action is and whether it's going to include 111D standards.

[01:38:26] Speaker 04:
The parties could not use the settlement agreement to compel EPA to take any action because the remedy was limited to filing a new petition or motion seeking to compel EPA to respond to a remand in

[01:38:45] Speaker 04:
a prior case, New York v. EPA, before this Court.

[01:38:50] Speaker 04:
As in the Defenders of Wildlife v. Percuseppe, EPA's statements about its intent to finalize a rule are not sufficient to establish causation for purposes of article freestanding.

[01:39:00] Speaker 04:
And, as this Court noted, the petitioners states were not parties to that agreement, and so they lacked standing.

[01:39:07] Speaker 04:
Second, even if they had any injury related to the settlement agreement, their claims are barred by the 60-day statute of limitations.

[01:39:18] Speaker 04:
Finalization of the settlement agreement was announced in April 2012.

[01:39:22] Speaker 04:
EPA had already promulgated the mercury and air toxics rule, and all the elements of their claim to illegality existed at that time.

[01:39:31] Speaker 04:
Under Eagle Pitcher, it was petitioners' burden to file a protective petition for review within the 60-day statutory period, and courts don't hypothesize whether, in retrospect, a claim would have been ripe had it been brought

[01:39:42] Speaker 04:
within the statutory period.

[01:39:45] Speaker 04:
Just 20 seconds to conclude.

[01:39:47] Speaker 04:
In conclusion, this is not an extraordinary case warranting.

[01:39:49] Speaker 04:
This court's jurisdictionally premature review.

[01:39:52] Speaker 04:
Petitioners' statutory authority arguments can and should be addressed in the normal course once the rule is finalized.

[01:39:58] Speaker 04:
And there is no substantial hardship in the interim because petitioners are not legally or practically obligated to do anything.

[01:40:04] Speaker 04:
We therefore ask that the court dismiss all of the petitions.

[01:40:07] Speaker 05:
Thank you.

[01:40:14] Speaker 09:
Good morning.

[01:40:15] Speaker 09:
May it please the court, Sean Donohue, for the environmental interveners.

[01:40:19] Speaker 09:
We agree with the government that these petitions are premature and they're in flagrant violation of the review scheme that Congress enacted in 1977 in the Clean Air Act.

[01:40:31] Speaker 09:
As Mr. Link pointed out, Section 7607D9 expressly makes clear that claims that an agency has violated the Constitution

[01:40:41] Speaker 09:
or as acting in excess of its statutory jurisdiction or authority are among those claims that a court can consider on proper review of a final rule.

[01:40:50] Speaker 09:
There's nothing that would allow.

[01:40:51] Speaker 09:
There's no exception.

[01:40:54] Speaker 09:
As the court knows, claims that an agency has exceeded its authority or even violated the Constitution are routine.

[01:41:00] Speaker 09:
And the idea that there can be this two-step review process would completely flout Congress's intent and would bring this Court into contact with an entirely new procedure.

[01:41:11] Speaker 09:
At a minimum, the Court would get myriad protective petitions for review, because if part of the agency's decision on authority or anything else is deemed to be final at the proposed rule stage, then people have to challenge it, and they no doubt would.

[01:41:28] Speaker 09:
Notably here,

[01:41:29] Speaker 09:
Many, many parties that really don't like this rule, the state of Texas, notably aggressive litigant against the government's proposals to regulate carbon, haven't participated, didn't file these premature petitions.

[01:41:44] Speaker 09:
I bet you they're ready.

[01:41:49] Speaker 09:
And they will have a full opportunity.

[01:41:52] Speaker 09:
And that brings me to the point, when they challenge, the agency's rationale matters.

[01:41:58] Speaker 09:
It's not just the ultimate conclusion whether the agency has authority or not.

[01:42:02] Speaker 09:
For example, it's been assumed, the petitioner's arguments assumed that the whole question is the Senate amendment and how do you treat it.

[01:42:08] Speaker 09:
And as Ms.

[01:42:09] Speaker 09:
Berman demonstrated, that alone is certainly reason to let the agency at least have its say and explain its views, because the court will need that to address that difficult statutory question.

[01:42:19] Speaker 09:
Whether or not you ultimately conclude that it's something that should be treated under Chevron or something else, it's totally extraordinary to not let the agency decide first.

[01:42:28] Speaker 09:
They admitted they have no case, and there is none.

[01:42:31] Speaker 09:
But we think the premise that everything depends on the Senate amendment is wrong.

[01:42:37] Speaker 09:
We think the House amendment clearly, with respect to the pollutants at issue here, which are those that are not and cannot be regulated under Section 112, we think that it's best read not to preclude the agency from regulating those under

[01:42:55] Speaker 09:
either program.

[01:42:56] Speaker 09:
That would be very aberrant under the Clean Air Act, that because a source is regulated for one pollutant, it can't be regulated for different pollutants with different health and environmental effects.

[01:43:08] Speaker 08:
There's nothing like that in the Act.

[01:43:12] Speaker 08:
and it may have been itself sloppily drafted in and put aside the whole Senate amendment, does on its face at least create a problem for what you just said?

[01:43:21] Speaker 09:
We don't think so.

[01:43:22] Speaker 09:
We think that the reference to Section 112 and to the notion of pollutants regulated under 112 and sources regulated under 112

[01:43:34] Speaker 09:
it can readily be limited to pollutants, to those pollutants, to the exclusion being limited to the pollutants that are actually regulated under 112.

[01:43:44] Speaker 09:
And in fact, as the Institute for Policy Integrity amicus brief shows, EPA has read Section 111D since 1990.

[01:43:53] Speaker 09:
Every administration has read it to allow

[01:43:56] Speaker 09:
in a way that would allow regulation of non-hazardous air pollutants.

[01:44:00] Speaker 09:
The rationales have been different.

[01:44:01] Speaker 09:
Maybe the issues haven't been squarely presented, but now they are.

[01:44:04] Speaker 09:
But the idea that this is some kind of bizarre departure is completely wrong.

[01:44:09] Speaker 09:
So we think if ever there were a case to abandon this very clear statutory structure,

[01:44:15] Speaker 09:
This is not it.

[01:44:17] Speaker 09:
There's clearly a very strong basis.

[01:44:19] Speaker 09:
The Supreme Court noted, mentioned 111D seven times in the AEP opinion, and the industry there was saying, this is the provision, this is the way you deal with carbon under the Clean Air Act.

[01:44:29] Speaker 09:
It's a flexible provision.

[01:44:31] Speaker 09:
It allows for the kinds of regulatory tools that make sense with respect to carbon.

[01:44:36] Speaker 09:
And so the idea that all of a sudden EPA is prohibited from doing so is remarkable.

[01:44:42] Speaker 09:
And the agencies should be allowed to conduct a rulemaking and explore it and reach a final decision.

[01:44:48] Speaker 09:
Many of the petitioners here supported as reasonable EPA's construction and the Clean Air Mercury Rule proceeding.

[01:44:55] Speaker 09:
that, again, would allow regulation of non-hazardous air pollutants under 111D.

[01:45:00] Speaker 09:
Ms.

[01:45:01] Speaker 09:
Berman mentioned Section 7412D7.

[01:45:05] Speaker 09:
That provision is completely inconsistent with the petitioner's theory that Congress had this anti-double regulation purpose in enacting the amendments in 1990, because it says that 112 standards shall not

[01:45:22] Speaker 09:
be construed to diminish 111.

[01:45:26] Speaker 09:
So EPA, at least, and some of the hundreds of comments – remember, there are millions of comments that the agency is considering now, which goes to the – when they're going to be able to finish it this summer.

[01:45:38] Speaker 09:
Millions of comments, and many of those comments, including by all the parties, all the interveners and petitioners here, address this very question.

[01:45:45] Speaker 09:
And the agency will be conducting a much more careful and focused analysis of this statutory question.

[01:45:52] Speaker 09:
So consider how bizarre this proceeding is now.

[01:45:55] Speaker 09:
Petitioners file a premature lawsuit.

[01:45:57] Speaker 09:
The agency responds.

[01:45:59] Speaker 09:
The petitioners challenge the agency's discussion of the statute as litigating the positions of counsel.

[01:46:04] Speaker 09:
Well, that's because the agency hasn't finished its work yet.

[01:46:07] Speaker 09:
And that and the protective petition for review problem are just two of the myriad ways that this brand new procedure they're trying to bring up here would really scramble the process that Congress established.

[01:46:22] Speaker 09:
Finally, I would submit that this case is just like the Los Brisas case, which involved a challenge to the proposed standards under 111B for new sources.

[01:46:34] Speaker 09:
With many of the same claims of immediate hardship, the agency has completely gone beyond its authority, and the court should step in.

[01:46:42] Speaker 09:
The court handled that exactly the way it should have.

[01:46:44] Speaker 09:
There's no final rule dismissed, and that's exactly, we submit, what the agency should do here.

[01:46:51] Speaker 09:
With the court's indulgence, I would just suggest one other thing on Judge Henderson's question about construing the judicial review provision in section 17, I'm sorry, 7607B.

[01:47:06] Speaker 09:
I think that it becomes very clear that promulgated rules are final rules when you read it together with

[01:47:12] Speaker 09:
7607D6, which compares the promulgated rule with the proposed rule.

[01:47:19] Speaker 09:
They're different things.

[01:47:20] Speaker 09:
There's this very carefully constructed process here.

[01:47:24] Speaker 09:
Almost any of the party – almost all of the parties interested in this important rulemaking are playing by the rules and participating in that rulemaking, whether they strongly oppose it or whether they strongly support it, like the State of New York and others.

[01:47:37] Speaker 09:
And they will all have their opportunity to review EPA's final decision, including on these statutory questions, and bring any claims of illegality to this Court.

[01:47:50] Speaker 09:
Thank you very much.

[01:48:00] Speaker 05:
Is there any time left for any?

[01:48:04] Speaker 05:
All right, would you give each one five minutes?

[01:48:07] Speaker 05:
All right, Mr. Dean.

[01:48:17] Speaker 10:
Thank you, Your Honor.

[01:48:17] Speaker 10:
I have a few points on the threshold issues.

[01:48:19] Speaker 10:
But if I could first, three very, very brief points on the merits.

[01:48:25] Speaker 10:
Just there was a lot of talk about the House Amendment, the US Code version being ambiguous.

[01:48:30] Speaker 10:
There are all these readings that have been suggested now.

[01:48:33] Speaker 10:
But just to get to the question that Judge Kavanaugh asked about, are these on ramps or are these off ramps?

[01:48:38] Speaker 10:
I mean, that's emblematic of these ambiguities that are newly discovered.

[01:48:43] Speaker 10:
There has been no question since 1970

[01:48:47] Speaker 10:
that these are all prohibitions.

[01:48:51] Speaker 10:
I mean, and that is, before even the 1990 amendments when this was phrased as three or's, you know, an or and then another or, even EPA has said from the beginning of promulgated regulations and said these are prohibitions.

[01:49:03] Speaker 10:
On the dueling amendments issue, I think one of the important things to remember is, you know, this has happened a lot.

[01:49:09] Speaker 10:
We have a footnote that talks about all the different revisers' notes, and, you know, this Court and the Supreme Court have always assumed that Congress legislates against the backdrop of these kinds of procedures that they know.

[01:49:20] Speaker 10:
And they know this is how Law Revision Council deals with conflicting, conforming amendments, which is what the Senate amendment is, and a kind of substantive amendment.

[01:49:28] Speaker 10:
But even

[01:49:29] Speaker 10:
As Judge Griffith has said, if there is truly a conflict here, I don't think the Cielaba case resolves this.

[01:49:36] Speaker 10:
I mean, there are five justices there who said that it could be a Chevron issue.

[01:49:40] Speaker 10:
But remember that Chevron step one requires the application of ordinary principles of statutory interpretation.

[01:49:46] Speaker 10:
And this court in Liberty Maritime and the Supreme Court in Borden have said that you need to give conflicting provisions their maximum effect.

[01:49:55] Speaker 10:
And there is only one way to do that here, which Judge Kavanaugh had suggested.

[01:49:59] Speaker 10:
And then finally, there have been a lot of references to the elephants and mouse holes analogy.

[01:50:04] Speaker 10:
But let me give you another colorful analogy.

[01:50:07] Speaker 10:
The EPA said there's no legislative history here.

[01:50:10] Speaker 10:
But as the Supreme Court said in Harrison,

[01:50:12] Speaker 10:
There is no dog that does not bark theory of legislative history.

[01:50:16] Speaker 10:
The fact that Congress did not specifically say anything doesn't mean that that's not what the statute, that the text doesn't mean what it says.

[01:50:24] Speaker 10:
On the threshold issues, let me turn first to Judge Henderson's question about the white stallion case in the Supreme Court.

[01:50:32] Speaker 10:
And I think, as Mr. Barnes said, that's really a question of prudential rightness.

[01:50:38] Speaker 10:
And the first and most important thing is that it's a waivable issue, as the Supreme Court has said.

[01:50:43] Speaker 10:
We raised that very issue in a footnote in our opening brief where we said, here is a way, there are two ways that the

[01:50:50] Speaker 10:
EPA can deal with the 112 exclusion, either delist power plants, wait and see what happens after the Supreme Court rules.

[01:50:56] Speaker 10:
If they lose, promise not to relist them.

[01:50:59] Speaker 10:
They did not address that.

[01:51:01] Speaker 10:
They have not, they have thrown every threshold argument they can think of against the wall, and the one that's missing is that the white stallion case will have any effect at all on the rightness of this issue.

[01:51:13] Speaker 10:
And then as far as the timing and whether this rule's gonna be final in two months, that just gets to, and this gets to the sort of fundamental disconnect here about what the issue here is.

[01:51:27] Speaker 10:
What's happening here is states and petitioners and the industry petitioners are being forced to do things.

[01:51:34] Speaker 10:
This is not simply participation in the administrative process, and the declarations make that very clear.

[01:51:41] Speaker 10:
This is not stuff that at least our states have been doing or would be doing anyway.

[01:51:46] Speaker 10:
For the petitioning states and the intervener states, what we're doing, because we have to do it given the 13-month time frame that we have after the finalization of the rule, these are not things we will be spending taxpayer dollars on.

[01:51:59] Speaker 10:
These are not the contemplated legislation, the contemplated rules, all things that draft legislation that we have to submit with our initial plan 13 months after the finalization of the rule.

[01:52:11] Speaker 10:
These are not things that at least our states would be doing.

[01:52:15] Speaker 10:
And that's important, I think, to remember that with every passing day, every passing week, and every passing month, no matter how soon this final rule may come out,

[01:52:23] Speaker 10:
These are taxpayer dollars and resources.

[01:52:26] Speaker 08:
So there's practical preparation, no doubt, and I acknowledge that, and I think it's a mistake to diminish that, but on the other hand, there's the formality that we rely on on principles for reviewability, and I think your response to that is this is a really big, extraordinary case, but how do you respond to these

[01:52:45] Speaker 08:
idea that in really big, extraordinary cases, we should be all the more following the ordinary principles of reviewability and making certain that we abide by those, even though it's a big, extraordinary case.

[01:53:00] Speaker 10:
Right.

[01:53:00] Speaker 10:
And I think the answer to that is, I think it would be remarkable to suggest that an extraordinary writ could never issue in a case where there is a proposed rulemaking.

[01:53:09] Speaker 10:
I think the phrase necessary and appropriate in the All Writs Act contemplates that there are times

[01:53:15] Speaker 10:
where the ordinary appeal process is adapted.

[01:53:18] Speaker 10:
But we'd never found one.

[01:53:19] Speaker 11:
This would be the first one.

[01:53:20] Speaker 10:
This would be the first one.

[01:53:23] Speaker 10:
But there's always a first.

[01:53:25] Speaker 10:
Yeah.

[01:53:25] Speaker 11:
We like to make history.

[01:53:29] Speaker 10:
And we think this would be the last.

[01:53:30] Speaker 10:
And I think that's... We think there's always a first, and we think this would be the last for the three reasons I articulated.

[01:53:39] Speaker 10:
And I think, just to conclude, it gets...

[01:53:43] Speaker 08:
In terms of timing, they've told you you can move first stay as soon as the final roll is...

[01:53:49] Speaker 08:
out there.

[01:53:51] Speaker 08:
Could be eight weeks.

[01:53:54] Speaker 08:
Take us time to write an opinion.

[01:53:55] Speaker 10:
Could be eight weeks.

[01:53:56] Speaker 10:
Could be 12 weeks.

[01:53:57] Speaker 10:
For the 111B rule, what was January has now become June.

[01:54:01] Speaker 10:
But that, again, gets back to the practical harms that we're talking about and the fact that this is essentially regulation by inertia.

[01:54:08] Speaker 10:
I mean, they have gone ahead and, as Judge Henderson said, said that they're going to do this rule.

[01:54:15] Speaker 10:
And you heard it today from EPA counsel.

[01:54:17] Speaker 10:
You know, when is this rule going to be final?

[01:54:19] Speaker 10:
It will be final this summer, which is what she said.

[01:54:22] Speaker 10:
And, you know, we're being... She wouldn't say what it would say.

[01:54:26] Speaker 10:
No, but I mean, ultimately, and I think that's the important issue here, this is not about all the various possibilities, right?

[01:54:33] Speaker 10:
This is an absolute prohibition.

[01:54:35] Speaker 10:
that if we are right about this, there is nothing more that they can do.

[01:54:38] Speaker 10:
There is no possible explanation they can give, no tweaking of the rule, no paring back of the building blocks that can make this rule lawful under 111D.

[01:54:49] Speaker 05:
Thank you.

[01:54:59] Speaker 06:
Your Honor, just a very brief point.

[01:55:03] Speaker 06:
EPA has raised a series of arguments as to why they need additional time in the full process of the comment period.

[01:55:13] Speaker 06:
But nowhere, anywhere as the agency suggested, there is any basis whatsoever in Section 111D on which the rest of this is based.

[01:55:27] Speaker 06:
Essentially what the agency, in the meantime, as has been described, there is significant immediate ongoing harm, and so that where you have a single legal issue that is

[01:55:45] Speaker 06:
fundamental to the rule can be and is an initial preliminary decision where the agency has not suggested anywhere that there's any basis under Section 111D and where there is a clear legal issue, it's teed up.

[01:56:03] Speaker 06:
I certainly doubt the court would want more briefing on this topic.

[01:56:08] Speaker 06:
And under these circumstances, we believe that the extraordinary writ is appropriate.

[01:56:15] Speaker 06:
And what I'd like to do here is cede the rest of my time to Professor Trott.

[01:56:34] Speaker 07:
Thank you.

[01:56:35] Speaker 07:
I might begin by the suggestion by Judge Griffith that constitutional avoidance sort of cuts against us on jurisdiction.

[01:56:43] Speaker 07:
Constitutional avoidance, as I understand it, is not a principle of cowardice.

[01:56:47] Speaker 07:
It's a principle of not attributing to Congress unnecessarily the intention to create a serious constitutional problem.

[01:56:57] Speaker 07:
So if there were ambiguity here,

[01:57:00] Speaker 07:
that avoidance principle of respecting Congress trumps Chevron deference.

[01:57:07] Speaker 07:
And that's really well established.

[01:57:09] Speaker 07:
So that if there were warring versions, and I think there aren't, and if one couldn't just obviously reconcile them by following them both, because as I suggested earlier, they're not inconsistent, if there were residual ambiguity, it still would not do them any good.

[01:57:28] Speaker 07:
Because as General Lynn pointed out, no matter what happens with the rule, there is something very fundamental that they're not even remotely suggesting they're going to cure.

[01:57:40] Speaker 07:
They're not suggesting they won't use 111D in circumstances where the plain language of the statute says you can't use it.

[01:57:50] Speaker 07:
for source categories that you're regulating under 112.

[01:57:53] Speaker 07:
That issue is fully teed up for review, and it really would be a terrible waste for everybody for them to go on under the illusion that they have a statutory authority that they don't have.

[01:58:06] Speaker 07:
And the issues of state sovereignty are also fully teed up.

[01:58:12] Speaker 07:
Now, I want to stress that I'm here representing all 14 intervener states, as well as Peabody and NFIB and UARG.

[01:58:25] Speaker 07:
And from the perspective of those states, not only is the EPA coloring outside the lines,

[01:58:31] Speaker 07:
Attempting to do something the statute clearly forbids and coming up with every imaginable rationale to defend it.

[01:58:38] Speaker 07:
They've come up with so many in the course of just this proceeding that I can't imagine that the ones they might still invent after the notice and comment period is over will be any better, frankly, than these are.

[01:58:52] Speaker 07:
The statute speaks for itself.

[01:58:55] Speaker 07:
It's clear that they're trying to make law, not execute law.

[01:59:00] Speaker 07:
And it's clear to me, anyway, that under the principles of the Prince case, the gun background check case, they are commandeering the states.

[01:59:10] Speaker 07:
They're commanding them to get ready, and not only to get ready, but to expand resources to plan for statutes and regulations that will meet their demands.

[01:59:20] Speaker 07:
Now, their suggestion is

[01:59:23] Speaker 07:
Unless you know what's going to be in our secret backup plan that we're going to announce sometime this summer, you can't tell whether there is a violation of Prince.

[01:59:33] Speaker 07:
Well, that just is not right.

[01:59:36] Speaker 07:
The Supreme Court made very clear in Prince and the opinion by Justice Scalia that it is a categorical, structural imperative

[01:59:45] Speaker 07:
one that cannot be balanced away by countervailing considerations.

[01:59:49] Speaker 07:
It didn't matter how much effort the chief local law enforcement officers had to engage in at the end of the line of command set up by the federal government.

[02:00:02] Speaker 07:
That violated the basic structure of our government.

[02:00:07] Speaker 07:
And a principle that they've never really tried to answer is that the fallback

[02:00:12] Speaker 07:
Regulation itself is one that you don't need to see in order to assess from this perspective.

[02:00:19] Speaker 07:
There is a principle, as old as the 1950s, that offers to withhold direct federal regulation or direct state regulation, but here in the federalism context, it's direct federal regulation.

[02:00:36] Speaker 07:
conditioned on waivers of fundamental rights, like the right of a state not to be commandeered.

[02:00:45] Speaker 07:
are not to be judged by some deferential standard of rationality.

[02:00:49] Speaker 07:
They're subject to the most demanding scrutiny, if not per se, unconstitutional.

[02:00:54] Speaker 07:
That principle is fully ripe here.

[02:00:57] Speaker 07:
And if their gambit works, the gambit that says, there's an ax out there, and it's going to fall, and you may not like it, so you better get your act in order, if that gambit works,

[02:01:09] Speaker 07:
And if all 50 states then waive their right not to be treated as puppets of a federal ventriloquist, not to be commandeered, brought into the federal army as it were,

[02:01:23] Speaker 11:
then look what happens.

[02:01:25] Speaker 11:
I'm still wondering how we manage that.

[02:01:27] Speaker 11:
I mean we have facts here with the administrator who's made some strong representations and you all are arguing we know what's coming.

[02:01:36] Speaker 11:
We know what's coming.

[02:01:37] Speaker 11:
But what do we do in the next case when someone comes along and says there's a proposed rule and we're confident it's going to be the final rule is going to look just like it.

[02:01:49] Speaker 11:
Come and get involved.

[02:01:50] Speaker 07:
Well, it really depends on whether there's any issue left open.

[02:01:53] Speaker 07:
You're very rarely going to have a case.

[02:01:55] Speaker 07:
I don't know of many in the past.

[02:01:57] Speaker 07:
And if we prevail here, there will be less in the future.

[02:02:01] Speaker 07:
I don't know of cases in which an agency says, we are making up our mind about the details.

[02:02:06] Speaker 07:
But our basic theory is that we have the right to regulate outside the statutory lines.

[02:02:12] Speaker 07:
And we have the right to put states to this Hobson's choice.

[02:02:17] Speaker 07:
Either, on the one hand, you accept our commandeering, or we're going to bring some regulation, we won't tell you all of its details, down on you.

[02:02:29] Speaker 07:
At that point, all you need to know is say, that is impermissible.

[02:02:34] Speaker 07:
And the reason it's impermissible is not that those states that cave in can then come back and say, well, we were coerced.

[02:02:41] Speaker 07:
We haven't waived our rights.

[02:02:43] Speaker 07:
That's not so clear.

[02:02:44] Speaker 07:
I mean, the people who decided to plead guilty under the Lindbergh law between 1934 and 1968, when they tried to come back into court and said, we want our life sentences to be vacated because those guilty pleas were coerced, they lost.

[02:03:01] Speaker 07:
These states are well counseled.

[02:03:03] Speaker 07:
They know what their choices are.

[02:03:04] Speaker 07:
And if you think you're going to have the opportunity to fully review the fundamental issue of whether this kind of Hobson's choice can be put to the states at a later stage, I'm not so sure, because the states

[02:03:18] Speaker 07:
that consent to go along with the EPA's plans are not going to be in the same position they are now to say, wait a minute, what you're doing to us is a violation of our place in the scheme of the federal government as the Constitution contemplates it.

[02:03:35] Speaker 07:
So it seems to me that when that basic pattern is laid out, whether Ms.

[02:03:39] Speaker 07:
Burden is right or wrong, that there is a scintilla of a shred of ambiguity and that's enough,

[02:03:45] Speaker 07:
That all gets wiped away.

[02:03:47] Speaker 07:
And when she says there's no legislative history that supports our reading, well, we don't need it.

[02:03:54] Speaker 07:
But yes, there is.

[02:03:55] Speaker 07:
And she's wrong.

[02:03:56] Speaker 07:
In 1990, and this is in the briefs, the EPA testified before Congress that the compromise that was just suggested by the last speaker for the respondents, the compromise of saying that the EPA can regulate everything

[02:04:15] Speaker 07:
except the hazardous substances that are being regulated in these sources.

[02:04:21] Speaker 07:
She said that would be ridiculous.

[02:04:24] Speaker 07:
It would be ridiculous to have duplicative regulation, even of different pollutants.

[02:04:29] Speaker 07:
And there's a perfectly good reason for it.

[02:04:31] Speaker 07:
You want to pressure the EPA to get its act together.

[02:04:34] Speaker 07:
If it's directly regulating the states, you don't want to encourage it to pass the bucks to the states.

[02:04:40] Speaker 07:
If it's directly regulating the industry,

[02:04:43] Speaker 07:
under 112.

[02:04:45] Speaker 07:
You don't want to encourage it to say, well, we don't want to be accountable to either the people or to Congress.

[02:04:50] Speaker 07:
We're going to let the states do it and use 111D and hold this club over them.

[02:04:56] Speaker 07:
It seems to me that the fundamental issues are fully teed up.

[02:05:00] Speaker 07:
Yes, it's true that if we were saying, well, maybe it depends exactly what's in these regulations, whether they are too coercive or not.

[02:05:10] Speaker 07:
That's not what we're saying.

[02:05:11] Speaker 07:
If we were, you would then have to carve out a special principle for when you intervene.

[02:05:17] Speaker 07:
We're not saying that.

[02:05:19] Speaker 07:
And that this court has jurisdiction is clear.

[02:05:22] Speaker 07:
The question is, what is it right?

[02:05:24] Speaker 07:
And whatever remedy you do or do not provide, whatever your ultimate decree, I would urge you not to create or leave in place the illusion that an agency can simply make up the rules, something that UARG reminded us it cannot do under our system of government.

[02:05:43] Speaker 07:
Thank you.