[00:00:02] Speaker 00:
Case number 14-1192, owner-operator Independent Drivers Association, Inc.

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Petitioner versus Environmental Protection Agency.

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Mr. Cullen for the petitioner, Ms.

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Walter for the respondent, and Mr. Poole for the intervener.

[00:00:19] Speaker 05:
Good morning.

[00:00:20] Speaker 05:
Good morning.

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May it please the court, my name is Paul D. Cullen, Jr., and with me is my co-counsel, Daniel Cohen.

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We represent the Petitioner-Owner-Operator Independent Drivers Association.

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and a national association of 150,000 small business truck drivers who would be impacted by the rule approved by EPA and challenged here.

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Petitioners filed a timely petition under 42 USC 7607 and

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I would like to first go talk about our main argument is against the constitutionality of CARB's rule.

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Under the Pike balancing test, we weigh the burden imposed on interstate commerce in relation to the punitive local benefits.

[00:01:11] Speaker 02:
What about whether we even have jurisdiction to hear this matter?

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I mean, I don't really see from your petition any place where you are challenging the actual waiver decision by the EPA.

[00:01:27] Speaker 05:
That is correct.

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If the EPA does not have authority to pass judgment on the constitutionality of CARB's rules,

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Uh, then that is correct.

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We were relying on the court's decision in Mima, which in which in under the same there was a challenge brought to the waiver and the constitutional issues were ancillary.

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Here, we don't have a challenge to the EPA decision in that.

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That's a significant difference between this case in Mima.

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We did not... The court certainly treated those constitutional challenges as ancillary, but they did take them.

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And they did decide them.

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It was a challenge to the waiver.

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You haven't brought a challenge to the waiver here.

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Why isn't that a dispositive distinction between this case and Mima?

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There is... This is the only case law in which the constitutionality of

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California's waiver, California's request for a preemption waiver has been challenged.

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And in it, the court, and I quote, petitioners are assured through a petition for review here that their contention will get a hearing.

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And that was specifically in the discussion of whether or not the court had authority to

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address the constitutional issues.

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Is your theory that the waiver is impermissible when the regulation or state law is unconstitutional?

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No.

[00:03:07] Speaker 05:
I'm sorry, I couldn't take apart your question.

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Is the waiver impermissible?

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The waiver would be impermissible if it is an unconstitutional rule.

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We don't challenge the EPA's

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decisions that are not related to the constitutionality of the issue.

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If the court finds that the... Section 7607B is the section that gives us jurisdiction, and that speaks entirely in terms of challenging an action of the administrator.

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How do you get around that?

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Is MIMA your only argument?

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MIMA is the only signpost we found that pointed us to which court would be appropriate to address this.

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And I might add that California's rules.

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Well, in American trucking and in MIMA, we also say there's another court that's appropriate for that, and that's out in California.

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challenging, you're bringing a dormant commerce clause action that's typically brought against a state, take it into state court.

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We only look at challenges to waivers, according to 76 of 70.

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The other fact which weighs in here is that California's rules had no effect.

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They were preempted under

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Section 7543 until EPA granted the preemption waiver and gave life to them.

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Under Section 7543 A, there's a specific federal prohibition on states regulating in this area.

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And it's the decision under subsection B that gave life, gave legal effect to California's rules.

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If the court believes that another court would be a more appropriate jurisdiction, we would ask you to transfer us there.

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Why wouldn't we dismiss it without prejudice?

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If we decide there's no jurisdiction, then EPA shouldn't be a party.

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So why wouldn't we just dismiss it without prejudice?

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Is there a statute of limitations issue here?

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If it is held that we must appeal within 60 days of the – the California rules had no legal effect until the EPA made its decision granting the waiver.

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If we are to be held under the 60-day rule in 7607 to bring a challenge within that time, then there would be a statute of limitations.

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So wouldn't you be bringing a Section 1983 claim against the state?

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Correct.

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Wouldn't that have

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whatever the tort, California tort statute limitations is, which I believe is two years.

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Presumably so.

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And since the waiver didn't take effect until sometime last year, you'd still be within, well within two years?

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That appears to be correct, Your Honor.

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Why wouldn't we deny it rather than dismiss it?

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You haven't challenged

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It seems to me you're asking for review of the waiver decision, but you're not arguing any basis on which the waiver decision was incorrect.

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It was incorrect in that the effect of the waiver decision was to permit California to violate the Constitution.

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And the administrator does not have the authority to give California that authority.

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Is that wrapped up in the waiver factors, however?

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Where do you get that?

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It is not, but we get that from the fact that the

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California rules had no legal effect until the EPA granted the preemption waiver.

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But could EPA have denied the waiver on the ground that the regulation, the state law, was a dormant commerce clause problem?

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No, it could not.

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Right.

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So you're not raising any merits-based challenge to the waiver decision, it seems to me.

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You're formally asking for review of the waiver decision, petitioning for review of the waiver decision, but you're raising no real substantial argument as to why that was incorrect, which seems to me we would deny the

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I mean, dismiss is another avenue, but even assuming we got past that, we would deny it because you haven't argued any basis on which the waiver decision was improper.

[00:08:12] Speaker 05:
Correct.

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I also would like to draw the Court's attention.

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So your whole thing is MIMA 1 is just an alternative route for review of the underlying state

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laws, constitutionality?

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It's the only precedent in which a court has discussed the constitutionality, reviewed the constitutionality of the underlying CARB rules that were granted a waiver.

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But even if the state law or regulation were unconstitutional, that doesn't make the waiver decision unconstitutional, correct?

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It has unconstitutional effect, because without the waiver decision, California's laws would not have any effect.

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And our strongest argument on the constitutionality is under the pipe balancing test.

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We know that the cost

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of this rule in the record would be almost $10 billion to the out-of-state truckers.

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And the EPA described that that was 90 percent of the total costs imposed.

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And under the CARBS record that they made at the Joint Appendix 55, their numbers show that it's 95 percent of the cost.

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And yet there is no record of what benefit would be

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achieved from the, that what, what environmental benefit there would be achieved from the out-of-state trucks.

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That's what Pike Balancing, they look at the burden imposed on interstate commerce in relation to the putative local benefits.

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What are the benefits environmentally

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from imposing that on the subset of trucks from out of state who come into the loop?

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Don't you have a tough time making a dormant commerce clause argument when it's California and the Clean Air Act?

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I mean, hasn't Congress blessed this special arrangement to allow California to go its own way?

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They have to an extent, but not to violate the Dormant Commerce Clause.

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When the Congress can give such permission to a state to act in a way that would otherwise violate the Dormant Clause, but there must be a clear expression of approval by Congress under the South Central Timber Development versus Wannakee case.

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excuse me, 467 U.S.

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82 at 92, Congress must be unmistakably clear that it intended to permit a state regulation.

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And I have two precedents that show that a grant of a waiver preemption is not that

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carte blanche permission to regulate in any manner that would otherwise violate the Constitution.

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The Supreme Court held in New England Power Company versus New Hampshire, 455 U.S.

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331, just that, that the grant of Congress to a state that it may regulate in an area that would otherwise be preempted by federal law

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does not grant authority to otherwise violate the commerce clause.

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And in an analogous case dealing with California and the Clean Air Act, the Ninth Circuit found that a grant of a preemption under the Clean Air Act

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under U.S.

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Code 42 U.S.C.

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7545 regarding fuel additives, that that preemption waiver, which mirrors the one in this case, was not an express exemption from Commerce Clause scrutiny.

[00:12:00] Speaker 05:
That's in Rocky Mountain Farmers Union versus Corrie, 730 F3rd, 1070 at 1106, and that was a 2013 Ninth Circuit case.

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And so under the pipe balancing test, we have the respondents acknowledge that 90% to 95% of the economic burden, $10 billion, is imposed on the out-of-state trucks.

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But they do not recognize what portion of their environmental benefits will come from those trucks adopting this equipment.

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Now, petitioners sent to a study in their comments to the agency, a study from the University of California Davis entitled, Assessment of Out-of-State Heavy Truck Activity Trends in California, that only 30 percent of the heavy truck highway miles

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in California are by truckers outside of California.

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So under this rule, they will incur $10 billion, or 95% of the burden of this rule.

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And this is the 30% of the traffic in highway heavy use traffic in California.

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It's far outweighs.

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Council, I just want to just notice you're well into your rebuttal time.

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If I may reserve the rest of my time for rebuttal.

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Thank you.

[00:13:33] Speaker 04:
Good morning.

[00:13:33] Speaker 06:
Good morning, Your Honors.

[00:13:35] Speaker 06:
I'm Michelle Walter with the Department of Justice representing the United States Environmental Protection Agency.

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And with me at council table is Winifred Okoye from EPA's Office of General Counsel and also Mark Poole,

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from the California Attorney General's Office who will be presenting, excuse me, arguments on behalf of the board as well.

[00:13:53] Speaker 06:
I do want to start with the jurisdictional issue that Judge Griffith and Judge Wilkins raised and actually Judge Griffith, you made a couple of the points that I was going to make, especially with respect to the MIMA-1 and the ATA language.

[00:14:06] Speaker 06:
But I also wanted to point out that in those two cases, the court also said that if the plaintiffs have an issue with the substance or the procedures of the board's regulations, they can attempt to file a challenge directly to those regulations.

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So it's important to note that the court has acknowledged that possibility before.

[00:14:23] Speaker 03:
What if they're saying that the waiver decision is unlawful to the extent the underlying state law is unconstitutional?

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I understand that that could possibly be their argument.

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But again, here, you're trying to look at practical considerations.

[00:14:38] Speaker 03:
And all of their- But on that question, on my question, doesn't MIMA 1 at least give some force to their argument?

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Maybe MIMA 1 speaks imprecisely on this topic.

[00:14:53] Speaker 06:
And I'm not sure Mima Wong contemplated this type of situation.

[00:14:56] Speaker 06:
Again, I think, as Judge Griffith, you pointed out, Mima Wong exercised a type of ancillary jurisdiction, in fact, to consider the constitutional challenges there, which did not include... Do you think it was correct?

[00:15:07] Speaker 06:
I'm sorry?

[00:15:07] Speaker 03:
Do you think Mima Wong was correct in doing that?

[00:15:11] Speaker 06:
In its overall holding or in that particular passage that... In that particular?

[00:15:14] Speaker 06:
Yeah, in that particular passage.

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As a general matter, I think that is correct when it comes to

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finding that when an agency doesn't have authority to consider a constitutional issue, which they typically don't, as this court has noted, that it would be appropriate for the court to hear those issues.

[00:15:31] Speaker 03:
But one of the- How's that different from this case then?

[00:15:34] Speaker 06:
a couple of reasons.

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First of all, Petitioners Council was incorrect when he said that they essentially have to challenge this waiver because the underlying California regulations otherwise would have no effect.

[00:15:47] Speaker 06:
While that's true that the regulations wouldn't actually have effect, that doesn't mean that they wouldn't be right for review.

[00:15:52] Speaker 06:
And in fact, there was a challenge that was brought into California District Court in the Central Valley Jeep case, which we cite in our brief, where the plaintiffs did challenge

[00:16:02] Speaker 06:
the California regulations before the waiver had been granted.

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And the court ruled, as we argue here, that they actually can't bring a dormant commerce clause challenge, which may explain why they've tried to bring this challenge here and effectively bootstrapping a claim against EPA's waiver because a California district court has already said that a dormant commerce clause challenge can't be brought against the California regulations.

[00:16:26] Speaker 06:
So that's one reason to distinguish that particular language in MEMA.

[00:16:31] Speaker 06:
But again, I don't think they were contemplating this particular type of situation.

[00:16:35] Speaker 06:
And again, the court also noted elsewhere in MEMA 1 that if petitioners were dissatisfied with the substance of the board's regulations, they could bring a challenge directly to those regulations.

[00:16:46] Speaker 03:
Well, correct me where I'm wrong.

[00:16:48] Speaker 03:
Mima 1 suggests that the administrator may not be able to consider the constitutional challenges, but nonetheless, and therefore should grant the waiver, may grant the waiver.

[00:16:59] Speaker 03:
But nonetheless, the court will review those constitutional challenges.

[00:17:05] Speaker 06:
Yes, that's what the court said.

[00:17:07] Speaker 06:
That's correct.

[00:17:08] Speaker 03:
And that's what they're saying they want here.

[00:17:11] Speaker 06:
And we understand that that's their argument.

[00:17:12] Speaker 06:
But again, because they haven't substantively challenged EPA's waiver like they did in MIMA 1, we think that that's a critical distinction.

[00:17:21] Speaker 04:
So is that just a failure in pleading almost?

[00:17:24] Speaker 04:
You're saying if they had brought this as a challenge using the statutory factors that go into the waiver decision, if that had been part of this case,

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we'd be free to take up the dormant Congress classes?

[00:17:37] Speaker 06:
Then I think we would have been in a more analogous situation with NEMA 1.

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And let me give you a specific example.

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All of the arguments that they present here concerning what they claim to be excessive costs and the burdens in comparison to the benefits of the California regulations, those same types of arguments could have been made in an argument that directly challenged EPA's analysis

[00:18:01] Speaker 06:
of the third criterion in Section 209B.

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That's the criterion where EPA looks at whether the technology is going to be infeasible because it can't be implemented within the lead time given or because the costs are going to be too excessive.

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Those same types of arguments could have been brought here, and yet they failed to do that.

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Instead, they brought their dormant commerce clause challenge.

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So it's a little perplexing to EPA as to why they couldn't have brought that challenge substantively to EPA's waiver decision instead itself.

[00:18:35] Speaker 02:
I mean, also in NEMA 1, there was a challenge as to whether this particular California regulation was in the scope of the Administrator's authority, preemption authority, or to waiver of the preemption because of, I guess, the argument that it was really

[00:18:56] Speaker 02:
more of a maintenance regulation than something that really had to do with emissions.

[00:19:02] Speaker 02:
So there was at least a meaty scope argument, APA argument, that was there in Mima 1, right?

[00:19:11] Speaker 06:
Correct, and then there were some other substantive challenges, I believe, to the EPA's actual consideration of some of the criteria under Section 209 as well.

[00:19:20] Speaker 06:
Which, again, they don't present here.

[00:19:22] Speaker 06:
I would like to move on just briefly.

[00:19:24] Speaker 03:
I'm sorry.

[00:19:24] Speaker 03:
I guess I'm still at a loss as to why MEMA 1 allows, in your view, allows the court to go on and consider a constitutional challenge that the administrator could not have considered.

[00:19:36] Speaker 06:
I'm sorry.

[00:19:37] Speaker 06:
Could you rephrase your question again?

[00:19:38] Speaker 03:
Yeah.

[00:19:39] Speaker 03:
Well, what's your theory as to why MEMA 1 allowed the court to consider a constitutional challenge to the underlying state law that the administrator could not consider?

[00:19:52] Speaker 06:
As the court recognized, I believe, in that case, as well as others, the court does have the ability to consider constitutional issues because federal agencies don't have the authority to issue opinions or do analysis of constitutional issues with respect to federal statutes.

[00:20:09] Speaker 06:
So where a federal agency doesn't... Keep going.

[00:20:13] Speaker 06:
I'm sorry.

[00:20:13] Speaker 06:
Where the federal agency doesn't have the authority to consider a constitutional issue, which EPA doesn't have here under Section 209,

[00:20:20] Speaker 06:
then the court can, as Mima once said, excuse me, consider those constitutional issues.

[00:20:27] Speaker 04:
But again, it was a very broad statement by the court in terms of... What principle would we use to distinguish between constitutional issues we take up and those we wouldn't?

[00:20:37] Speaker 06:
I think if you want to try and draw a line, the line here is with respect to this type of dormant commerce clause claim that petitioners have brought, which notably the dormant commerce clause can't be violated by a federal agency.

[00:20:51] Speaker 06:
So if you want to try to draw a line between those types of constitutional claims, that would be where I would start with that.

[00:20:58] Speaker 04:
So in that case, if they had brought a challenge to the EPA waiver, you're now saying we wouldn't take up the Dormant Commerce Clause issue?

[00:21:09] Speaker 04:
Let's imagine that with the case that they have right now, they had also brought a challenge to the EPA waiver.

[00:21:15] Speaker 04:
I thought earlier you had said that would be analogous to NEMA 1, which I thought meant we would then be able to take up the constitutional issues.

[00:21:21] Speaker 04:
But you're now suggesting no, because it's Dormant Commerce Clause.

[00:21:24] Speaker 06:
No, I didn't mean to be suggesting.

[00:21:25] Speaker 06:
No, I'm just saying I was directing it more to your question about what types of constitutional issues.

[00:21:30] Speaker 06:
It could be something the court would obviously consider in exercising that type of ancillary jurisdiction, for lack of a better word, that the court exercised in Mima 1.

[00:21:39] Speaker 06:
But again, I think if they had brought that type of claim, which they haven't, then we'd be in a more analogous situation.

[00:21:45] Speaker 06:
But we just simply aren't, because they didn't bring that same argument with respect to EPA's criteria.

[00:21:53] Speaker 06:
In the remaining couple minutes I have, I did want to touch briefly on the argument as to whether, if the court does proceed to consider the merits of the dormant commerce class challenge, whether that type of claim can even be brought here.

[00:22:06] Speaker 06:
And one thing I would like to note is that in, again, in the ATA American Trucking case and in Mima 1,

[00:22:14] Speaker 06:
The court there said it would be virtually impossible for California to exercise the type of broad discretion that Congress intended to give to California if, for example, in the American Trucking case, California had to comply with various other statutory provisions that it wasn't required to comply with.

[00:22:33] Speaker 06:
The analogy here being that as the legislative history makes abundantly clear, Congress affirmatively intended, and that's the type of intent that the Supreme Court in this Voorhees case has allowed, an affirmative intention to allow a state to regulate in an area that would otherwise be impermissible.

[00:22:53] Speaker 06:
And here, if you allow a dormant commerce clause challenge to be brought against California's regulations, it's severely hamstringing California in its ability to regulate the pollution that Congress fully intended them to be able to regulate to the exclusivity of all other states.

[00:23:10] Speaker 06:
So that language in American Trucking and Amoeba One

[00:23:14] Speaker 06:
or excuse me, it's NEMA 2, not NEMA 1, where the court specifically noted California's broad discretion and how it shouldn't be hamstring, I think is very important here to looking at that legislative history.

[00:23:26] Speaker 06:
And on five occasions in NEMA 1, NEMA 2, American trucking, the Ford case, and engine manufacturers, this court has discussed that legislative history at length.

[00:23:37] Speaker 06:
Granted, it wasn't in this specific context, but a more clear legislative intent really can't be imagined where Congress specifically did the type of analysis that petitioners wanted to hear, which is weigh the costs against the burden that were going to be imposed on the auto industry.

[00:23:54] Speaker 03:
Are there any other questions?

[00:23:55] Speaker 03:
Why would we read MIMO 1 to allow some constitutional challenges and not others?

[00:24:04] Speaker 06:
Going back to Judge Griffith's question, I think if you

[00:24:07] Speaker 06:
If you are wanting to draw a line, I think it would be because the Dormant Commerce Clause challenges are fundamentally different from other types of constitutional challenges.

[00:24:16] Speaker 03:
Because?

[00:24:18] Speaker 06:
Because in this context, the Dormant Commerce Clause challenge cannot be brought against a federal agency.

[00:24:23] Speaker 06:
Only states can violate the Dormant Commerce Clause.

[00:24:28] Speaker 03:
But in MIMA 1, they were arguing that the underlying state regulations were the unconstitutional action.

[00:24:36] Speaker 06:
Correct.

[00:24:37] Speaker 06:
And again, that could be a conclusion that the court would reach here.

[00:24:41] Speaker 06:
But I think the fact that we have a very obvious attempt to challenge only the board's regulations, the court may not even need to get that far as to try and figure out what lines to draw to distinguish Mima 1.

[00:24:53] Speaker 06:
We just don't have the situation that was present in Mima 1 with respect to the lack of the substantive challenge here.

[00:25:01] Speaker 06:
If there are no other questions, then we would ask that the petition be dismissed either on those prudential type of considerations we mentioned or dismissed entirely on the merits.

[00:25:10] Speaker 06:
Thank you.

[00:25:19] Speaker 01:
Good morning.

[00:25:20] Speaker 01:
Good morning, Your Honors.

[00:25:21] Speaker 01:
Deputy Attorney General Mark Poole, appearing on behalf of the Air Resources Board.

[00:25:25] Speaker 01:
Let me attempt to pick up where counsel for USDOJ left off in answering the questions from Judge Griffith and Judge Kavanaugh in terms of the principle of drawing a line between this case and MIMA.

[00:25:35] Speaker 01:
And we believe that the MIMA case can be refined here.

[00:25:39] Speaker 01:
This case presents an opportunity for that, at least, to mean that any constitutional challenges to the administrator's decision

[00:25:47] Speaker 01:
could be wrapped into a challenge to the waiver decision itself.

[00:25:51] Speaker 01:
And so we would suggest that would be the principle that would flow from MEMA.

[00:25:54] Speaker 03:
Do you think that's what was really going on in MEMA 1?

[00:25:57] Speaker 01:
Well, we acknowledge that the First Amendment claim in that case addressed the consequences of the regulation at issue there.

[00:26:04] Speaker 01:
But we would suggest here that this presents an opportunity to refine that now going forward.

[00:26:08] Speaker 03:
Refine, I love that word.

[00:26:09] Speaker 03:
Refine precedent.

[00:26:12] Speaker 01:
Well, obviously, it's this court's decision, and so we were here today suggesting that that might be a principle upon which the court could draw a distinction or clarify.

[00:26:27] Speaker 04:
Isn't your stronger argument that obviously there's tension between ATA and NEMA 1?

[00:26:34] Speaker 04:
But isn't your strongest argument that we don't need to resolve that here because they have not brought a challenge to the law?

[00:26:39] Speaker 01:
Absolutely, Your Honor.

[00:26:40] Speaker 01:
We fully agree with USDOJ's argument on behalf of EPA on that point.

[00:26:44] Speaker 01:
We made that point in our papers.

[00:26:45] Speaker 01:
And clearly, that is the prime distinction between the MEMA situation in here.

[00:26:50] Speaker 01:
We believe that Section 307 of the Clean Air Act and the APA both, in terms of jurisdiction, require a challenge to the underlying federal agency act.

[00:26:59] Speaker 01:
So if we weren't inclined to refine MEMA 1,

[00:27:02] Speaker 01:
You wouldn't get avoided.

[00:27:03] Speaker 01:
That's correct.

[00:27:04] Speaker 01:
You wouldn't need to.

[00:27:05] Speaker 01:
That's enough of a distinction for the court to deny the petition, and we would agree with Judge Kavanaugh's suggestion in his earlier questioning.

[00:27:13] Speaker 01:
in terms of denying it versus dismissing.

[00:27:15] Speaker 03:
Denying rather than dismissing on the ground.

[00:27:17] Speaker 03:
They haven't challenged the waiver decision.

[00:27:19] Speaker 01:
That's correct.

[00:27:20] Speaker 01:
And obviously here, that does not leave petitioner without a forum.

[00:27:24] Speaker 01:
As we've conceded, there is a forum in California.

[00:27:27] Speaker 01:
And as the MIMA Court also clearly addressed in its standard of review discussion, there is a forum, an available forum, to bring these types of constitutional challenges in the California courts.

[00:27:39] Speaker 01:
And those constitutional challenges have been brought in many cases before this one.

[00:27:43] Speaker 01:
So let me, I believe that, you know, I don't want to repeat or cover ground that's already been covered in terms of the jurisdictional argument.

[00:27:54] Speaker 01:
I'm happy to answer any other questions, but let me also add a couple of prudential considerations that compel dismissal or denial here as well.

[00:28:03] Speaker 01:
First of all, as EPA argued, there really isn't an adequate record for this court upon which to decide the fact and tense dormant commerce cause

[00:28:11] Speaker 01:
Dormant Commerce Clause questions involved.

[00:28:14] Speaker 01:
As Memo 1 stated, the waiver proceeding is a forum ill-suited to the resolution of constitutional claims.

[00:28:19] Speaker 01:
As a result, there was no adequate development of a record here for this Court to consider.

[00:28:25] Speaker 01:
Even if there had been a more adequate record developed,

[00:28:29] Speaker 01:
Proceeding here to resolve those kinds of questions under the Dormant Commerce Clause would tie ARB's hands from being able to fully defend itself without the ability to do discovery or cross-examine petitioners' evidence as it would at the trial court level.

[00:28:44] Speaker 01:
So those are a couple of prudential considerations for the court also to weigh.

[00:28:50] Speaker 01:
Today, petitioner only has argued the pike balancing prong of Donut Commerce Clause jurisprudence.

[00:28:56] Speaker 01:
Quickly, let me address that in terms of balancing the benefits and the burdens.

[00:29:00] Speaker 01:
The benefits here are uncontroverted.

[00:29:02] Speaker 01:
The benefits are greenhouse gas reductions and reductions of NOx emissions in California that assist ARB and California in its attainment of the national ambient air quality standards.

[00:29:14] Speaker 01:
This also assists ARB in meeting its goals under its AB 32 greenhouse gas reduction program.

[00:29:20] Speaker 01:
As important, the net cost savings, the evidence in the record demonstrates that the net cost savings to tractor, trailer, owner, operators is estimated to be $6,000 per tractor and $13,000 per trailer here.

[00:29:34] Speaker 01:
That evidence, as found by EPA in the waiver decision, is uncontroverted.

[00:29:39] Speaker 01:
That's at Joint Appendix Site 461-62.

[00:29:43] Speaker 01:
The petitioner here has not offered any evidence that these cost benefits will not be achieved.

[00:29:48] Speaker 01:
And as a result, EPA found no evidence to question ARB's cost estimates.

[00:29:52] Speaker 01:
As a result, we would conclude, as ARB did in its administrative proceeding, that not only are the environmental benefits

[00:29:59] Speaker 01:
Not only do the environmental benefits outweigh any potential burdens here, but the economic cost benefits to the petitioners' members as well justify a finding under Pike Balancing that the benefits outweigh the burdens.

[00:30:14] Speaker 01:
With that, I'm happy to answer any more questions.

[00:30:18] Speaker 01:
Thank you very much.

[00:30:18] Speaker 01:
Thank you.

[00:30:28] Speaker 05:
I just want to address one point from the Council for the Air Resources Board, who described that there have been other cases in which the board's activities have been challenged on a constitutional basis.

[00:30:45] Speaker 05:
Petitioners here brought such a challenge in federal district court in California.

[00:30:52] Speaker 05:
We cite to it in the footnote four on page nine of our reply brief.

[00:30:57] Speaker 05:
And we are on appeal from dismissal in that case because the court held that because the Air Resource Boards

[00:31:06] Speaker 05:
regulations had been approved by EPA that we are required to challenge EPA's decision and cannot bring an action directly against CARB in district court under the principles that when EPA approves the board's rules, then it has federalized those rules.

[00:31:31] Speaker 05:
That's on appeal to the Ninth Circuit.

[00:31:33] Speaker 05:
That's on appeal to the Ninth Circuit.

[00:31:34] Speaker 05:
And their position was that we had to sue under 7607 within 60 days, and we were beyond that time to appeal.

[00:31:44] Speaker 03:
Presumably, if we ruled against you here and the Ninth Circuit rules against you there, the Supreme Court will have to figure out the right path.

[00:31:53] Speaker 05:
Perhaps there'd be greater likelihood if there was a split.

[00:32:00] Speaker 05:
There was, and finally, with regard to the request to refine the cases, we would ask if you were to refine or clarify the ATA decision, it would be to describe that we do have the ability to go to district court so we know where we're going.

[00:32:17] Speaker 05:
Thank you.

[00:32:19] Speaker 04:
Thank you very much.

[00:32:20] Speaker 04:
The case is submitted.