[00:00:01] Speaker 00:
Case 12-1100 et al.

[00:00:04] Speaker 00:
White Stallion Energy Center LLC petitioner versus environmental protection agency.

[00:00:09] Speaker 00:
Mr. Lindstrom for certain state and industry petitioners, Ms.

[00:00:13] Speaker 00:
Talbert for EPA respondent, Mr. Collins for the industry respondent interveners, Ms.

[00:00:19] Speaker 00:
Hoffer for the state and city respondent interveners, and Mr. Donahue for the environmental and PHO respondent interveners.

[00:00:27] Speaker 07:
Good morning, Chief Judge Garland, and may it please the court.

[00:00:31] Speaker 07:
EPA is a creature of statute.

[00:00:34] Speaker 07:
The only authority it has is the authority that's been given by Congress.

[00:00:39] Speaker 07:
In this case, Congress imposed a substantive precondition on its exercise of that authority.

[00:00:44] Speaker 07:
It could not regulate power plants until it first made an appropriate and necessary finding.

[00:00:52] Speaker 07:
And we now have confirmation that that appropriate and necessary finding must include a consideration of costs.

[00:00:59] Speaker 07:
So EPA has still not, to this very day, fulfilled that substantive precondition.

[00:01:05] Speaker 07:
As of today, it has never completed a finding that's appropriate and necessary that includes a consideration of costs.

[00:01:13] Speaker 07:
So EPA therefore does not have any authority to promulgate the rule and didn't have authority in 2012.

[00:01:19] Speaker 07:
And that means that the rule must be vacated.

[00:01:23] Speaker 07:
The primary we're making is you don't need to reach the allied signal line of cases at all, because this is a different situation where there's no authority.

[00:01:35] Speaker 07:
In this case, it has on many.

[00:01:37] Speaker 06:
But it's kind of a combination of an authority issue and a state farm issue, right?

[00:01:41] Speaker 06:
Because the Supreme Court said cost has to be a factor.

[00:01:44] Speaker 06:
That's the authority issue.

[00:01:49] Speaker 06:
factor, how they apply the factor, how the agency applies the factor, that's really going to be a state farm, reasonableness, did they balance the right factors, did they do it appropriately.

[00:02:02] Speaker 06:
The ultimate, so I understand why you're saying it's an authority issue, but it's going to be next time around.

[00:02:10] Speaker 07:
Absolutely.

[00:02:11] Speaker 06:
A state farm kind of issue.

[00:02:13] Speaker 06:
That's correct.

[00:02:13] Speaker 06:
The question at this point, and this odd posture, is

[00:02:17] Speaker 06:
Is there a chance they'll come to the same bottom line and be upheld in that bottom line, I suppose.

[00:02:24] Speaker 07:
I think the question's a little bit different.

[00:02:27] Speaker 06:
Chance is not the right word, I understand, but we look at the likelihood.

[00:02:32] Speaker 07:
Well, I think in the future, there will be an arbitrary and capricious component of the case after they've actually done that step by considering costs.

[00:02:39] Speaker 07:
But since they haven't yet, the deficiency that we're talking about is the fact that they didn't have authority in 2012, that they don't have authority today, and they won't have authority until they actually make the finding.

[00:02:52] Speaker 08:
So that's- Wasn't the same thing true in the sugar cane versus venom in case?

[00:02:57] Speaker 08:
The Administrative Procedure Act says an agency has no authority to issue rules until they do notice and comment.

[00:03:03] Speaker 08:
If you don't do notice and comment, you don't have any authority.

[00:03:05] Speaker 08:
You can't issue a rule.

[00:03:07] Speaker 08:
And yet, we remanded without vacancy.

[00:03:09] Speaker 08:
And we've done that many times.

[00:03:11] Speaker 07:
I think notice and comment is different.

[00:03:13] Speaker 07:
Because notice and comment, for one, is a procedural as opposed to a substantive authority.

[00:03:17] Speaker 07:
But it's also not even a mandatory precondition under the APA or under the Cleaner Act, because both of them recognize that it's something that the agency can set aside if it has good cause.

[00:03:27] Speaker 08:
If it makes a finding of good cause and publishes on the record, which it didn't do in that case.

[00:03:32] Speaker 08:
And without doing that, we expressly said that they violated the APA.

[00:03:36] Speaker 08:
in that case, and yet we remanded without vacatur, and we've done that many times.

[00:03:41] Speaker 07:
And there are also many cases where there have been notice and comment failure that have actually resulted in vacatur.

[00:03:47] Speaker 08:
Yes, yes.

[00:03:48] Speaker 08:
So, but I understand that, but I think that just goes to the

[00:03:52] Speaker 08:
point that this is an allied signal-like case.

[00:03:54] Speaker 08:
There's nothing special about this case.

[00:03:56] Speaker 08:
And in the other cases where, like the IEM E. Homer where we said it was fundamentally inconsistent with what the Supreme Court had said, in North Carolina where we said there were fundamental flaws, in all of those cases, we then have to address the remedy question.

[00:04:13] Speaker 08:
But I don't see why we don't have to address that.

[00:04:17] Speaker 08:
You say we don't even have to address the remedy question here.

[00:04:19] Speaker 08:
I'm not sure.

[00:04:20] Speaker 07:
That's true.

[00:04:21] Speaker 07:
And there's a number of cases where this court has said there's a lack of authority and therefore we vacate.

[00:04:26] Speaker 07:
So for example, in one of the NRDC versus EPA cases, this is one from 2007, the court said, we conclude that EPA's definition of commercial or industrial waste is inconsistent with the plain language of the Clean Air Act.

[00:04:40] Speaker 07:
and the definitions rule must therefore be vacated.

[00:04:43] Speaker 07:
An even more on point example of this type of reasoning, there is no allied signal analysis at all.

[00:04:48] Speaker 08:
I'm not sure what you're saying other than that if you're saying our case law is inconsistent, well, that's interesting.

[00:04:53] Speaker 08:
But that doesn't help us resolve this particular truth.

[00:04:56] Speaker 07:
It may also be true.

[00:04:58] Speaker 07:
I'm trying to make a slightly different point, which is that this court has a number of times recognized that a lack of statutory authority leads to the conclusion that you must vacate.

[00:05:05] Speaker 06:
But that's where we're saying, I think, there's a lack of authority to do what they did.

[00:05:11] Speaker 06:
And I think the posture we're in now is that EPA has been told there's a lack of authority to do what you did without considering cost.

[00:05:20] Speaker 06:
And so they've said, okay, when we consider costs and looking, because we know in rough shape the costs and benefits, we're going to come out at the same bottom line and therefore don't vacate, without prejudicing your ability to challenge that, of course, in the future, but making the judgment that we do under allied signal.

[00:05:43] Speaker 06:
you know, they're saying we're going to come out in the same bottom line.

[00:05:45] Speaker 06:
So it's not that we said, or the Supreme Court said, you don't have authority to do what you did.

[00:05:51] Speaker 06:
It's, you don't have the authority to do what you did without considering this factor first.

[00:05:56] Speaker 06:
Which strikes me as a little different.

[00:05:59] Speaker 07:
Well, I think the fact that there's a substantive precondition that they haven't met

[00:06:04] Speaker 07:
means that they haven't yet acquired the authority.

[00:06:08] Speaker 07:
So the fact that they are in the future going to consider costs, and it's possible without prejudging the outcome, presumably they're going to look at this carefully, that they could ultimately reach the same outcome.

[00:06:20] Speaker 07:
But that's just like the hypothetical we used in our brief about the fact that a court

[00:06:25] Speaker 07:
might reach the same conclusion later if it acquired jurisdiction.

[00:06:29] Speaker 07:
It doesn't mean the fact that it initially didn't have jurisdiction is not a problem of authority.

[00:06:34] Speaker 07:
And I think I'd like to return to the notice and comment point.

[00:06:38] Speaker 07:
That's an important one, because I think there

[00:06:41] Speaker 07:
is a difference between something that's under the APA versus something that's under the underlying statute that is granting the substantive authority.

[00:06:48] Speaker 07:
The APA is a procedural statute that's focused on making sure they go through certain steps in the process of making exercising their authority, but it's not

[00:06:57] Speaker 07:
about whether or not they have authority the same way that the underlying statute is.

[00:07:01] Speaker 07:
And this is a particularly clear example because of the statutory language we're talking about where, as the Supreme Court decided, it's something that they have to do for they're allowed to impose the rule.

[00:07:12] Speaker 07:
And so this seems to me, if you're comparing it to a prior precedent of this case court, a lot more like the New York versus EPA decision from 2005.

[00:07:21] Speaker 06:
Suppose, might be taking on a different point, so I didn't mean to interrupt, but between now and April 15th, what will be different?

[00:07:29] Speaker 06:
if it's vacated as opposed to if it's not vacated from the point of view of your side of the case, what people will do on the ground.

[00:07:38] Speaker 06:
What are the practical differences?

[00:07:39] Speaker 07:
So you're asking about the practical differences?

[00:07:41] Speaker 07:
Well, the practical differences is it's going to impose 158 on an annual basis.

[00:07:46] Speaker 07:
It's $158 billion of compliance costs that EPA acknowledges that's their estimate that are going to be imposed from running these controls.

[00:07:53] Speaker 07:
And that's $150 million compared with the, again, the annual basis of $4 to $6 million of hazardous air pollutants that are being reduced.

[00:08:02] Speaker 06:
So we can compare those.

[00:08:03] Speaker 06:
Well, that gets into the benefits issue.

[00:08:04] Speaker 06:
We'll get to that.

[00:08:05] Speaker 06:
But I just want to know exactly what would be different.

[00:08:08] Speaker 06:
What would people do differently tomorrow if it's vacated than they're doing today?

[00:08:13] Speaker 07:
Well, that's the tough part about this sort of rule, that it takes so much lead time to comply with it.

[00:08:19] Speaker 06:
So has most of that been done?

[00:08:21] Speaker 07:
A lot of it has been done, but there's still 40% of the plants that have extensions, as the state respondents brief acknowledges.

[00:08:29] Speaker 07:
So there's still a lot of people who have extensions.

[00:08:31] Speaker 07:
I assume they're still going through the process, and they're trying to comply with the rule.

[00:08:35] Speaker 06:
But if it was vacated, they know it's going to be reissued, say, April 15.

[00:08:42] Speaker 06:
Well, the prudent investment would suggest keep going.

[00:08:48] Speaker 07:
Right.

[00:08:48] Speaker 07:
And it strikes me as, you know, an ironic component of this case that

[00:08:54] Speaker 07:
the fact that they've already spent this money under the rule that was unlawful from 2012 is now being held against them.

[00:09:01] Speaker 06:
I agree with that.

[00:09:03] Speaker 06:
So there's a lot of things about the pace of litigation versus the pace of investment and how rules have the time.

[00:09:08] Speaker 06:
I get all that.

[00:09:09] Speaker 06:
But just in the precise posture we're in,

[00:09:13] Speaker 06:
will something really change on the ground if it's vacated rather than just held in place until, usually April 15th.

[00:09:22] Speaker 07:
Right, because that's their prediction.

[00:09:25] Speaker 07:
Yeah.

[00:09:25] Speaker 07:
And yes, I mean this compliance cost is a significant amount of cost and it's severely out, I mean you

[00:09:31] Speaker 07:
said that it gets into the underlying issue of co-benefits, but when we're talking about what's appropriate to consider as one of the disruptive consequences, it seems like that issue is somewhat implicated.

[00:09:43] Speaker 08:
If most of the plants already have the installed controls,

[00:09:46] Speaker 08:
What are the costs?

[00:09:47] Speaker 08:
You mean you just want to take the controls off during the four months?

[00:09:50] Speaker 07:
It's not physically removing them.

[00:09:52] Speaker 07:
It's not operating them.

[00:09:53] Speaker 08:
Right.

[00:09:54] Speaker 07:
You just don't want to operate them for the four months.

[00:09:56] Speaker 07:
Is that right?

[00:09:57] Speaker 07:
Because we think it would be they shouldn't have to comply with $158 million of compliance costs when, yes, I mean, they shouldn't have to operate them.

[00:10:05] Speaker 08:
Well, it's $158 million the capital costs, or is it just the cost of running?

[00:10:10] Speaker 08:
That's the cost of running them.

[00:10:11] Speaker 08:
So who do you represent here?

[00:10:12] Speaker 08:
According to the industry respondents,

[00:10:15] Speaker 08:
You really only represent a single generator that's actually existing.

[00:10:19] Speaker 08:
That's Oak Grove, which operates just one gigawatt plant.

[00:10:23] Speaker 08:
And they say that they represent 75 gigawatts worth, and they think that the disruption would be enormous for the electrical industry.

[00:10:32] Speaker 08:
But as to the one company you represent, how much is it going to cost that one company?

[00:10:38] Speaker 07:
I also represent the states.

[00:10:41] Speaker 07:
But the states aren't running the plant, so that's true.

[00:10:44] Speaker 08:
We can talk about what their injury might be, but the briefs are all aimed at the costs at power plants, and yet you only represent a single one and a very small one.

[00:10:57] Speaker 08:
And the people who represent 75 times as much power say they don't want vacatur because they will be injured worse during this four months or a longer period.

[00:11:09] Speaker 08:
What do you say to that?

[00:11:10] Speaker 07:
Well, I think that actually ties back to the point I made before, that they've already been injured, right?

[00:11:16] Speaker 07:
The people I'm representing have already had to expend all of this under the rule when the rule was enacted without authority.

[00:11:23] Speaker 08:
But the question is, what can we do about that?

[00:11:24] Speaker 08:
Well, if we're talking in four months, you may be back under the rule again.

[00:11:29] Speaker 08:
So the real question is what happens during this four months?

[00:11:32] Speaker 08:
We can't help you

[00:11:34] Speaker 08:
with what happened in between.

[00:11:36] Speaker 08:
So this is a marginal cost question, as an economist would say.

[00:11:42] Speaker 07:
That's fair enough, Your Honor.

[00:11:44] Speaker 07:
And I'm here more out of the rule of law concern.

[00:11:46] Speaker 07:
I mean, that's the real thing that's driving our interest in this case.

[00:11:49] Speaker 06:
But the second allied signal factor is the disruptive consequences.

[00:11:54] Speaker 06:
It is.

[00:11:55] Speaker 06:
It's kind of an amorphous, practical effects on the ground kind of consideration.

[00:11:59] Speaker 07:
That's true.

[00:11:59] Speaker 07:
And I think

[00:12:03] Speaker 07:
the focus should be not on that second factor, but on the seriousness of the deficiency if you're applying the allied signal test, or on the fact that they didn't have authority in the first place.

[00:12:13] Speaker 08:
But on the seriousness of the deficiency point, we've said in those other cases I just mentioned, these were fundamental flaws, flatly inconsistent with the statute, etc.

[00:12:22] Speaker 08:
And yet, we still looked at the second question, which was the degree of disruption.

[00:12:28] Speaker 08:
And the people who represent most of the industry here say that this would be extremely disruptive if we were to do anything more than remand right now.

[00:12:39] Speaker 08:
And you have one plant.

[00:12:41] Speaker 08:
And I appreciate the concern about the one plant, and I appreciate the rule of law question.

[00:12:47] Speaker 08:
In many ways, we're in an equitable situation here.

[00:12:50] Speaker 08:
We have to decide what to do during this period.

[00:12:54] Speaker 07:
Well, I think that the legal analysis informs the equitable considerations.

[00:12:58] Speaker 07:
It seems to me that there's an equitable component to the fact that this has been imposed unlawfully on them in the past, and that's how we're in that situation.

[00:13:07] Speaker 07:
It seems to me that if you're looking at the equitable picture, you want to look at the entire equitable picture, and that's part of it.

[00:13:14] Speaker 06:
In your rule of law point, there's obviously a strong argument that others have made that should always be vacated.

[00:13:19] Speaker 06:
That's not where our case law stands.

[00:13:22] Speaker 06:
And the allied signal test does seem to pick up on Judge Garland's point, kind of an equitable injunction-like standard, where you balance the likelihood of success and the harms kind of sliding scale.

[00:13:36] Speaker 06:
Do you disagree with that reading of allied signal?

[00:13:38] Speaker 07:
No, I do agree that that's what the allied signal test is focused on.

[00:13:43] Speaker 07:
But there's also a lot of cases, again, where this court has not applied the allied signal analysis when there's a lack of authority.

[00:13:51] Speaker 07:
And I've got an example that's similar to this one, because it's a Chevron step one analysis.

[00:13:56] Speaker 07:
So that's the New York versus EPA case that I was mentioning a minute ago.

[00:14:01] Speaker 07:
And the court's analysis on what to do was we hold that EPA lacks authority to promulgate the clean unit provision, and we vacate that portion of the rule as contrary to the statute under Chevron step one.

[00:14:14] Speaker 07:
So it's not, I don't think, the case theater always in the context of allied signal.

[00:14:19] Speaker 07:
that applies in certain circumstances.

[00:14:22] Speaker 07:
We're not disputing that.

[00:14:23] Speaker 07:
We're not saying that it's not a proper standard to apply to a number of circumstances.

[00:14:28] Speaker 07:
Our point is that when there's a fundamental lack of authority, it's, you know, it's as if the district court acted without a chunk, without authority.

[00:14:35] Speaker 07:
And then on appeal you said there's no jurisdiction, and so you left the permanent injunction in place.

[00:14:39] Speaker 08:
Isn't every time when we think that the agency acted in an arbitrary and capricious way in examining Congress's instruction as to what it should do, doesn't that mean it's without authority?

[00:14:51] Speaker 08:
That is, in this case,

[00:14:53] Speaker 08:
You could say that they acted by not considering cost, but you could equally say, as you did before, that not considering cost is acting arbitrarily and capriciously in terms of interpreting the words.

[00:15:06] Speaker 08:
That we do all the time.

[00:15:08] Speaker 08:
And if an agency acts arbitrarily and capriciously in interpreting Congress's words, whether we call that Chevron or we call that State Farm, in a way it's acting without authority.

[00:15:18] Speaker 08:
The Supreme Court's decision about whether Chevron applies to so-called agency jurisdictional questions makes quite clear that they're very difficult to distinguish those two points, jurisdiction versus authority, authority versus acting arbitrarily and capriciously.

[00:15:34] Speaker 08:
I appreciate the point.

[00:15:37] Speaker 08:
I'm trying to put this into that box, but I think this is a pretty hard box to define.

[00:15:43] Speaker 07:
I agree it's hard to find because there are many limitations on agencies.

[00:15:46] Speaker 07:
But I guess if this case doesn't fall on the side where a lack of authority, which is a substantive precondition, then it seems to me there wouldn't be any case where you would directly.

[00:16:00] Speaker 06:
I don't agree with that.

[00:16:01] Speaker 06:
Because the statute, I'm repeating myself now, but if we say, as we sometimes do, the statute does not give the agency authority to do acts,

[00:16:11] Speaker 06:
The reason we vacate, I believe, is there's nothing they're going to be able to do about that.

[00:16:18] Speaker 06:
And so there's no reason to remand.

[00:16:20] Speaker 06:
However, if we say the agency may have authority to do X, but they didn't explain it sufficiently, they didn't consider a relevant factor, we're going to send it back to the agencies in the way we remand a district court sometimes for them to explain sentencing decisions or something more, or consider factors that weren't considered.

[00:16:40] Speaker 06:
That's a different kind of case.

[00:16:42] Speaker 06:
So I don't think it's correct to say if we don't vacate here, there's no case to vacate.

[00:16:48] Speaker 07:
I guess my only point is that it's this is a clear instance where Congress told EPA you have to do something before you're allowed to regulate and they have not done that.

[00:17:00] Speaker 07:
So just as a matter of

[00:17:03] Speaker 07:
following the rules or the language of that statute, which both the agency and this court should do under Chevron, when it strays far beyond the bounds of the statute, which is what Supreme Court said, then it should be vacated.

[00:17:18] Speaker 07:
And whether it's mandatory or not, this is such a serious deficiency that even under the Allied test it should

[00:17:25] Speaker 07:
There's one of your cases where you mentioned that if the deficiency is extreme, if it's very serious, then you don't give as much weight to the secondary part of the test.

[00:17:36] Speaker 07:
And that's the Comcast case, I believe.

[00:17:38] Speaker 08:
But as, again, we've said that the deficiency in North Carolina was fundamental.

[00:17:43] Speaker 08:
It was fundamentally flawed.

[00:17:45] Speaker 08:
Right.

[00:17:45] Speaker 08:
And in EMU... I don't know what fundamental means, by the way, but... Well, I don't know what that means either, but we did go on for several pages explaining those fundamentals.

[00:17:54] Speaker 08:
In fact, we said very little will survive on remanded anything approaching the recognizable form.

[00:18:02] Speaker 08:
I guess that's a test.

[00:18:03] Speaker 06:
That's the point I'm making about.

[00:18:05] Speaker 08:
That's a test of fundamental.

[00:18:07] Speaker 07:
Well, and I guess the other point about the North Carolina case is that's where you initially did what I'm asking for in that case, right, which was to vacate it because it would be on statute.

[00:18:15] Speaker 07:
And then everybody, the EPA moved for remanded out vacatur and nobody objected.

[00:18:21] Speaker 07:
Nobody made the argument I'm making.

[00:18:22] Speaker 07:
That case didn't actually decide this issue, so as a presidential.

[00:18:26] Speaker 03:
What happened in North Carolina?

[00:18:27] Speaker 03:
Just speak up for the North Carolina panel.

[00:18:31] Speaker 03:
was the panel thought there were fundamental problems with EPA's approach, and it vacated.

[00:18:39] Speaker 03:
And then EPA and others asked the court to reconsider because of the consequences of vacating, that the states had been for years planning on the basis of certain assumptions underlying this rule, and the court

[00:18:58] Speaker 03:
reconsidered, changed its position, and remanded without vacating.

[00:19:04] Speaker 03:
And so we're having that same discussion now that in North Carolina we had on the motion for reconsideration.

[00:19:12] Speaker 07:
Right.

[00:19:12] Speaker 07:
And as I understand it, nobody raised the argument I'm making in the remand consideration.

[00:19:16] Speaker 07:
Everybody agreed it should be vacated.

[00:19:18] Speaker 07:
So I'm just making a point that it's not precedentially binding because that issue wasn't actually decided in that case.

[00:19:25] Speaker 07:
Would you like to reserve the rest?

[00:19:26] Speaker 07:
I'd like to reserve it.

[00:19:29] Speaker 08:
Okay, we'll hear from the respondents who have apparently divided their time against the best normal guidance to respondents not to divide your time, because then you don't have a chance to answer the judge's question.

[00:19:47] Speaker 08:
But we'll start with the EPA.

[00:19:52] Speaker 01:
May it please the court, my name is Stephanie Talbert and I represent EPA in this matter.

[00:19:56] Speaker 01:
With me at council table is Eric Huss-Settler from DOJ and Patri Ting from EPA and also Paul Versace is here from EPA as well.

[00:20:06] Speaker 01:
In Michigan against EPA, the Supreme Court identified a single limited deficiency with the mercury and air toxic standards.

[00:20:14] Speaker 01:
It said that EPA has to give at least some consideration to cost when it makes its appropriate and necessary finding under Section 112N1A of the Clean Air Act.

[00:20:28] Speaker 01:
Importantly, the Supreme Court declined to have an EPA's discretion in how to do that.

[00:20:34] Speaker 01:
and today I'd like to address two points in support of our motion for remand without faketure so that EPA can go back and address that limited deficiency on remand.

[00:20:45] Speaker 01:
First, allied signal is the law of the circuit and must be applied regardless of whether the court applies the APA standard of review or the Clean Air Act standard of review to this issue before the court.

[00:20:58] Speaker 01:
And second, the application of the allied signal factors weigh heavily in EPA's favor and yields a clear result.

[00:21:05] Speaker 08:
Could you address one third question, which is it may well be very important to us how long this is going to take.

[00:21:13] Speaker 08:
And the briefs talk about as near to April 15th as possible.

[00:21:18] Speaker 08:
And now you've actually done something that

[00:21:20] Speaker 08:
looks like you're moving towards it.

[00:21:22] Speaker 08:
Within a few minutes of our issuing an order for oral argument, you published it.

[00:21:27] Speaker 08:
I assume it was actually published.

[00:21:28] Speaker 01:
It was published on December 1st.

[00:21:30] Speaker 08:
So we know that if we order oral argument, we get the government to move.

[00:21:33] Speaker 01:
That's very good.

[00:21:36] Speaker 01:
We had plans to file that 28-J before we saw the order.

[00:21:38] Speaker 08:
Post-hoc, ergo proctor hoc.

[00:21:42] Speaker 08:
OK.

[00:21:43] Speaker 08:
So how confident can we be now that this will be done by April 15th?

[00:21:48] Speaker 01:
EPA is on track to meet that intended deadline.

[00:21:53] Speaker 01:
The reason why EPA was not more forceful and used words like plan and aim is that there are certain things outside of EPA's control like the number of comments it's going to receive and the nature of those comments.

[00:22:06] Speaker 01:
So while it is preparing to meet that deadline and it has done significant work in just the five months that it's been since

[00:22:14] Speaker 01:
the decision came out, EPA is on track to meet that intended deadline.

[00:22:22] Speaker 01:
Next, I'll move to my first point, which is that alex signal is the law of the circuit and must be applied.

[00:22:29] Speaker 01:
As Judge Garland said earlier, sugar cane growers address this precise argument that joint petitioners are making that the APA requires vagature without any analysis of the alex signal factors, and this court said, but that is simply not the law, and then went on to apply alex signal.

[00:22:49] Speaker 01:
So it must be applied in this case, even if this court treats the issue as coming under the APA rather than the Clean Air Act standard of review.

[00:23:00] Speaker 06:
So the first allied signal factor, whether the agency

[00:23:05] Speaker 06:
whether the agency chose correctly or the extent of doubt, whether the agency chose correctly, the seriousness of the orders deficiencies, depends a little bit on evaluation of whether you're going to be able to reach the same bottom line after considering costs, and obviously the agency is planning to.

[00:23:22] Speaker 06:
But then do we look at, for example, in the world argument in Michigan, Chief Justice Roberts was very focused for four pages of the transcript on the idea that co-benefits were potentially problematic.

[00:23:37] Speaker 06:
Suppose that were true.

[00:23:38] Speaker 06:
Suppose co-benefits were problematic.

[00:23:40] Speaker 06:
How do we factor that into our allied signal analysis now?

[00:23:44] Speaker 01:
Well, we don't think that the court should be reviewing the merits of EPA's proposed finding because it's only a proposal, and this court is not reviewing the merits of a fine rule.

[00:23:57] Speaker 06:
This is the oddity of the posture, I suppose.

[00:23:59] Speaker 06:
We're making some kind of weird, predictive judgment about how the future EPA action will hold up, I guess.

[00:24:09] Speaker 01:
Well, I think the court could look at the proposed supplemental finding and note that EPA has proposed several other preferred approaches for evaluating costs that don't focus on the cost benefit analysis that was done in the prior rule, which did find that the benefits, including co-benefits,

[00:24:29] Speaker 01:
far outweigh the cost by 10 billion.

[00:24:32] Speaker 06:
The key is the including co-benefits.

[00:24:35] Speaker 06:
He referred to that as an end run and bootstrapping and disproportionate.

[00:24:40] Speaker 06:
It was all in the context of questions, but he went on and on.

[00:24:43] Speaker 06:
And I don't know, it's just questions of oral argument, but I assume that's going to be the key battleground six months, a year from now, will be whether co-benefits are properly part of the analysis or not.

[00:24:56] Speaker 06:
And I don't know what I'm supposed to do with that here.

[00:24:58] Speaker 01:
Well, as to the first allied signal factor, the court looks at the likelihood that the agency will be able to address the deficiency on remand.

[00:25:09] Speaker 01:
And we have shown that EPA will be able to do that on an expedited schedule.

[00:25:14] Speaker 01:
And there's other cost information that EPA will be able to look at in addition to what they're doing now.

[00:25:20] Speaker 08:
The only deficiency having been identified being the failure to consider costs, not the question of

[00:25:26] Speaker 08:
whether co-benefits are included or not, because the Supreme Court expressly said it was not addressing that, notwithstanding the questions of oral argument.

[00:25:35] Speaker 01:
That's right, Your Honor.

[00:25:36] Speaker 01:
And I think also under the second allied signal factor, the disruptive consequences, whether or not it was correct for EPA

[00:25:45] Speaker 01:
or it would be correct for EPA to rely on those co-benefits in the final action the rule in fact does achieve those co-benefits and so when we point to disruptive consequences it's not only the very significant harm that is caused by mercury and other hazardous air pollutants that we're pointing to but also the

[00:26:07] Speaker 01:
associated benefits that will result by putting controls on these power plants that are regulated under the rule.

[00:26:15] Speaker 01:
So the court factors in the co-benefits in that part of the analysis as well.

[00:26:21] Speaker 06:
Why should we ever vacate when it's a notice and comment violation?

[00:26:36] Speaker 01:
I'm not sure that issue is before.

[00:26:41] Speaker 01:
Here I think it has cases where the court has vacated not withstanding disruptive consequences it is because

[00:26:49] Speaker 01:
And this is the NRDC case that joint petitioners mentioned, because the rule could not be resurrected in any recognizable form.

[00:26:57] Speaker 06:
And in this case, that's distinguishable, because this- But in the notice and comment cases, if it's a failure, inadequate notice, we know to all moral certainty the agency is going to come up with the same rule.

[00:27:10] Speaker 06:
And yet we

[00:27:13] Speaker 06:
sometimes vacate even though we know it's just a box checking thing on remand.

[00:27:22] Speaker 06:
Again, maybe that's our problem, not yours, but it does strike me.

[00:27:25] Speaker 06:
That's one of the reasons I'm asking is that even if we know that the agency is going to do the same thing on remand here, they're saying, well, sometimes you vacate even in those circumstances, for example, in those common kind of cases.

[00:27:40] Speaker 01:
Well, I think

[00:27:43] Speaker 01:
I'm not sure how to respond to that, but the difference is a procedural one and their remedy is to have the opportunity to comment on what the agency is doing.

[00:27:54] Speaker 01:
Here, EPA

[00:27:57] Speaker 01:
is providing that same process in the action on remand and has been able to show not just with what it's doing now, but what it did in the rule, there were costs in the record that people had an opportunity to comment on in that part of the rulemaking as well.

[00:28:26] Speaker 01:
to then address the second factor of the allied signal test.

[00:28:32] Speaker 01:
As we and intervener respondents have demonstrated, there are significant public health and environmental effects of vacatur.

[00:28:44] Speaker 01:
With respect just to mercury, we're talking about

[00:28:47] Speaker 01:
brain development in fetuses impaired by methylmercury.

[00:28:52] Speaker 01:
We're talking about children's learning disabilities and developmental delays.

[00:28:57] Speaker 01:
We're talking about lung and kidney and nervous system damage.

[00:29:01] Speaker 01:
We're talking about cancer.

[00:29:02] Speaker 01:
And those are just the health consequences.

[00:29:05] Speaker 01:
There are other environmental consequences as well.

[00:29:10] Speaker 01:
And then we also

[00:29:12] Speaker 01:
put before the court that states have regulatory issues because they have relied on the reductions that will be gained by MATS in several contexts.

[00:29:22] Speaker 01:
And also industry has said to this court that it will be severely disruptive.

[00:29:27] Speaker 01:
And I did just want to address one point that Judge Garland was making.

[00:29:32] Speaker 01:
We know that Oak Grove is in compliance with the MATS rule and the other industry

[00:29:39] Speaker 01:
groups that were on the joint brief did not put any information before this court of significant harm and the only one that did that was tri-state and we now know that their harm is significantly reduced and it's important to note that they withdrew their request to the agency for relief.

[00:29:58] Speaker 01:
So we have put a wealth of information before the court.

[00:30:03] Speaker 08:
I take your point and this is

[00:30:07] Speaker 08:
More for my curiosity, given the health harms that you're talking about, including the premature deaths and the other things, why are those things not monetizable?

[00:30:17] Speaker 08:
That is, why in the original cost description, you don't really take those things into account?

[00:30:26] Speaker 08:
Those seem like the kind of things that agencies every day attach a monetary consequence to.

[00:30:36] Speaker 01:
Well, it's my understanding that it was difficult to quantify those types of effects because of limitations in data and also because of some of the long-term, like cancer has a long-term latency, so it's hard to measure the effects of the pollutants on those kinds of harms.

[00:31:00] Speaker 08:
Well, I thought it was your brief.

[00:31:03] Speaker 08:
Maybe it's the public health brief that talks about 11,000 premature deaths each year.

[00:31:07] Speaker 01:
That seems like something that is... I think that is the co-benefit issue and is quantified in the cost-benefit analysis, which is why the benefits are so significant.

[00:31:24] Speaker 01:
I'm sorry this court is sitting in equity and should apply the allied signal test and because of the wealth of information we put before the court under both factors and the disparity in in that joint petitioners have not put forth any significant harm of being

[00:31:43] Speaker 01:
of maintaining the status quo, we ask for remand without vacancy.

[00:31:46] Speaker 06:
And you're okay if we say we factor into our analysis that EPA says it's on track to issue the... Yes, and if the court would like, EPA would be happy to provide status reports if that would assure the court that EPA will continue to be on track.

[00:32:03] Speaker 08:
Thank you.

[00:32:07] Speaker 08:
The industry respondent interveners, thank you.

[00:32:11] Speaker 08:
Mr. Collins?

[00:32:15] Speaker 04:
Chief Judge Garland, may it please the court?

[00:32:17] Speaker 04:
Thank you.

[00:32:17] Speaker 04:
I'm here to represent the only people you will hear from today who actually are in the business that is regulated by this rule, the electric power business.

[00:32:26] Speaker 04:
As Chief Judge Garland noted, we have over 75 gigawatts of generation capacity represented by our clients.

[00:32:34] Speaker 04:
I think I'd like to focus today, with the Court's permission, on answering the questions of Judge Kavanaugh, what actually is going to happen if a rule gets vacated.

[00:32:45] Speaker 04:
Before I do that, though, there's an important issue which we haven't discussed today, which is what are we talking about vacating?

[00:32:52] Speaker 04:
We're talking about vacating the finding here today.

[00:32:55] Speaker 04:
And EPA, more importantly, is talking about reinstating the finding in four months.

[00:32:59] Speaker 04:
So when Judge Garland asks, well, what happens when EPA reinstates the finding in four months,

[00:33:07] Speaker 04:
be aware that that is not equal to reinstating the rule in four months if this court vacates the rule and not merely the finding.

[00:33:16] Speaker 04:
It is by no means certain that absent some provision by this court to make sure it is so that EPA, if the rule were vacated by the court now,

[00:33:26] Speaker 04:
when it reaffirms the finding in a few months can resurrect the rule like that.

[00:33:31] Speaker 04:
That is by no means certain, and it's certainly a possibility that if the court were to vacate the rule and EPA proceeds to reinstate the finding next April, it could still be years before hazardous pollutants from power plants are regulated if EPA has to go back to the drawing board and propose a new rule to fulfill all those Clean Air Act and EPA requirements.

[00:33:54] Speaker 04:
Because if the court vacates the rule,

[00:33:56] Speaker 04:
Perhaps another provision in its order is void of initial and we're back to the drawing board, which is, I think, explicitly what the movement petitioners are asking the court to do today.

[00:34:07] Speaker 08:
So what I'm about to describe as the disruptive... Well, I would imagine that if we did vacate the rule and four months from now there was a finding, you would come back here and you would not be claiming that they have to start all over again.

[00:34:21] Speaker 08:
We certainly wouldn't, Your Honor.

[00:34:23] Speaker 08:
You would agree that it would have to go on?

[00:34:25] Speaker 08:
That's a pretty big roll of the dice.

[00:34:26] Speaker 04:
No, certainly we would not be claiming that EPA had to start over.

[00:34:30] Speaker 04:
I would agree with you, Your Honor, but if the court vacates now,

[00:34:34] Speaker 04:
There may be a possibility for reconsideration.

[00:34:36] Speaker 04:
I'm not sure whether the court will still have jurisdiction if it doesn't retain it explicitly.

[00:34:41] Speaker 04:
It's certainly possible for this court to structure an order vacating the rule that would automatically restrict it.

[00:34:46] Speaker 06:
I think we can note that EPA would move quickly.

[00:34:51] Speaker 04:
Well, they would move quickly, but as Ms.

[00:34:53] Speaker 04:
Talbert just testified, Your Honor, we can expect certainly comments.

[00:34:57] Speaker 04:
We don't consider this testimony.

[00:34:58] Speaker 04:
She wasn't under oath.

[00:35:00] Speaker 04:
Thank you very much.

[00:35:01] Speaker 04:
But to me, Ms.

[00:35:02] Speaker 04:
Talbert's word is her bond, and I'm sure she spoke the truth in all respects.

[00:35:06] Speaker 04:
But we do see that there would be a concerted opposition, perhaps from the same movement petitioners that are moving today.

[00:35:12] Speaker 04:
They'd be filing comments.

[00:35:14] Speaker 04:
EPA would have to comment.

[00:35:16] Speaker 04:
EPA would have to take it.

[00:35:17] Speaker 06:
When you have limited time, can you just focus on the practical consequences if you were going to focus on something else?

[00:35:21] Speaker 04:
Yes, very good.

[00:35:21] Speaker 04:
Thank you, your honor.

[00:35:22] Speaker 04:
Well, the practical consequences that would extend for however long vacator last are these.

[00:35:28] Speaker 04:
The match rule operates as a financial matter to require all the inefficient dirty power plants either to pony up and add the modern controls that they need to meet modern standards or to retire.

[00:35:40] Speaker 04:
As a result of that,

[00:35:42] Speaker 04:
The surviving electric power plants are going to expect higher revenues that will justify the higher costs that they will incur in the MATS environment.

[00:35:53] Speaker 04:
So when MATS came down and even before the power industry began to restructure itself,

[00:35:58] Speaker 04:
so that it took into account the higher revenues that it would receive, and those higher revenues were used to justify or not to justify the investment in the system that is necessary to comply with the law.

[00:36:10] Speaker 04:
So with this court to vacate the rule, whether that vacator lasted for four months or three years until EPA replaces the rule,

[00:36:17] Speaker 04:
The investment-backed expectation of the electric power industry and all those who have invested in more controls, in new plants, in conversions to gas and so forth, are going to be disappointed.

[00:36:29] Speaker 04:
And the plants – the power generators that have made those investments are going to find those investments devalued,

[00:36:36] Speaker 04:
or even entirely stranded because they will be attached to power plants that now, in the lower price environment that would prevail, if the plants that were going to retire don't retire and don't upgrade, the cost that those upgraded plants will receive will not be sufficient to cover the cost or at least not to meet the reasonable expectation of higher revenues in the post-MATS world.

[00:37:01] Speaker 04:
Thank you very much.

[00:37:05] Speaker 08:
We'll hear from Ms.

[00:37:06] Speaker 08:
Hoffer for the State and City Respondent Interveners.

[00:37:09] Speaker 02:
Good morning, Your Honors.

[00:37:10] Speaker 02:
Melissa Hoffer, Massachusetts Attorney General's Office here today on behalf of 19 states and local governments.

[00:37:16] Speaker 02:
I'd just like to speak briefly this morning about the heart of this issue for the states, and that is the significant public health and environmental harms that will occur if the rule is vacated.

[00:37:28] Speaker 02:
The eight unrebutted declarations that accompanied EPA's and the state's and public health intervenors motions to govern today show that if the rule is vacated, the protections that are already being achieved right now

[00:37:44] Speaker 02:
would be significantly diminished.

[00:37:46] Speaker 02:
I wanted to give you a very practical example of what that means in terms of the mercury emissions specifically.

[00:37:51] Speaker 02:
The rule affords a 20-ton per year decrease in mercury emissions.

[00:37:57] Speaker 02:
And if the rule is vacated based on the evidence that you have before you from our declarations, that would be reduced to approximately 5 to 8 tons per year, which is less than half of the reductions.

[00:38:07] Speaker 02:
The evidence also shows that the excess emissions of not only mercury, but also acid gases and the non-mercury metals translate into tangible harms to real people fairly immediately.

[00:38:20] Speaker 02:
In addition to that, our ability as states to comply with other important federal regulatory programs would be compromised, and I just wanted to give you a few examples of those this morning.

[00:38:31] Speaker 02:
So several of our states are located in the Northeast,

[00:38:34] Speaker 02:
which has often been referred to as the tailpipe of the country because of the path of prevailing winds.

[00:38:41] Speaker 08:
Many of those... Do you want your citizens to know that that's how you do it?

[00:38:46] Speaker 02:
It is true.

[00:38:46] Speaker 02:
It is true.

[00:38:47] Speaker 02:
I am sorry to say.

[00:38:48] Speaker 02:
I live there.

[00:38:48] Speaker 02:
And many of us have passed power plant mercury regulations that are much more stringent than MATS, yet we're still unable to attain our state water quality goals.

[00:38:59] Speaker 02:
And what that means, just in real terms, is that there are millions of acres of ponds and lakes, and there are thousands of miles of streams and rivers that are polluted with mercury.

[00:39:10] Speaker 02:
So they're out of, they're impaired from mercury under the Clean Water Act.

[00:39:13] Speaker 02:
States then therefore have to develop pollution budgets or total maximum daily loads that are supposed to lay out how we attain those standards.

[00:39:21] Speaker 02:
But we really simply can't do it.

[00:39:22] Speaker 02:
So for example, the total maximum daily load for the Northeast states found that it would not be possible

[00:39:29] Speaker 02:
to return fish tissue concentrations of mercury to safe levels without reducing significant out of region mercury sources.

[00:39:37] Speaker 02:
And it's specifically called, the states in that TMDL specifically called for nationwide regulation of mercury emissions.

[00:39:45] Speaker 02:
And the same is true of Minnesota's TMDL.

[00:39:49] Speaker 02:
Because certain air pollution controls that are required by the rule also have the effect of reducing sulfur dioxide and particulate matter emissions, the states will also be relying on that rule to help achieve compliance with national ambient air quality standards for sulfur dioxide and for particulate matter.

[00:40:11] Speaker 02:
And that's also true with respect to meeting the goals of the Regional Hays Program.

[00:40:18] Speaker 02:
And I refer you to our brief for more details, since I know my time is limited.

[00:40:22] Speaker 08:
So.

[00:40:22] Speaker 08:
No, actually it's up.

[00:40:24] Speaker 02:
Thank you.

[00:40:25] Speaker 08:
Unless there are questions from the budget.

[00:40:27] Speaker 02:
Thank you so much, Your Honors.

[00:40:28] Speaker 02:
Appreciate it.

[00:40:30] Speaker 08:
Sean Donahue for the Environmental and Public Health Organization Respondent and Intervener.

[00:40:35] Speaker 05:
Good morning, Your Honors.

[00:40:36] Speaker 05:
Thank you.

[00:40:37] Speaker 05:
I just want to make four quick points, auctioneer style, and then one broader observation.

[00:40:43] Speaker 05:
The sugar cane growers case involved not just a notice and comment violation, but also a failure by the Department of Agriculture to make findings required under the statute as a precondition for that grant program.

[00:40:56] Speaker 05:
And that was found by the court to be unlawful.

[00:40:59] Speaker 05:
in that respect, not just a notice and comment case.

[00:41:03] Speaker 05:
The movements for vacatur claim that this case involves peculiarly a failure of authority, and I think the Court raised some questions about how you distinguish this from other cases.

[00:41:16] Speaker 05:
I think those are well-founded, but I think a case like the New Jersey case involving the Clean Air Mercury Rule where this court found that the agency couldn't regulate a listed hazardous pollutant under the program it was trying to use is an example.

[00:41:33] Speaker 05:
There was nothing EPA could do to fix that program, and therefore vacature was appropriate.

[00:41:39] Speaker 05:
This is very different.

[00:41:40] Speaker 05:
as is evidenced by the fact that the Supreme Court invoked Channery and said there are some arguments made that might even be ones that could be upheld, but they're not ones EPA made contemporaneously.

[00:41:53] Speaker 05:
Very different situation.

[00:41:54] Speaker 05:
The Court didn't question that EPA has the power to regulate hazardous air pollutants and might even be able to use the rationales offered in the briefs.

[00:42:03] Speaker 05:
The idea that the allied signal doctrine is somehow an aberration or a wrong turn by this court, we think it's binding.

[00:42:13] Speaker 05:
Even if that were so, there's so many cases, APA cases and otherwise, but we think it's squarely within the tradition of equity that judicial review of agency action comes from.

[00:42:23] Speaker 05:
And there's so many cases, for example, the line Romero-Barcelo, Village of Gambell,

[00:42:30] Speaker 05:
winter and Monsanto cases where the Supreme Court has said you don't automatically enjoin agency action when there's a violation of statute.

[00:42:39] Speaker 05:
You look at the consequences, and that's very much in line with the equitable tradition.

[00:42:45] Speaker 05:
One more quick legal point.

[00:42:48] Speaker 05:
Co-benefit's very interesting.

[00:42:50] Speaker 05:
question.

[00:42:51] Speaker 05:
It was a subjective discussion at the Supreme Court argument.

[00:42:54] Speaker 05:
Note that this EPA's proposed finding does not rely on co-benefits.

[00:42:59] Speaker 05:
The primary rationales, and all this is tentative and the agency's going to hear from everyone about it, but their primary rationales are this program, these restrictions on pollution will reduce hazardous air pollutants that Congress really wanted to relieve.

[00:43:15] Speaker 08:
Even acting as an auctioneer, you're over.

[00:43:18] Speaker ?:
Okay.

[00:43:18] Speaker 08:
If there are no questions, I'll thank you.

[00:43:22] Speaker 08:
Thank you very much.

[00:43:23] Speaker 08:
And is there reserve time?

[00:43:26] Speaker 08:
We're going to round you up to two minutes because you had so many others to face.

[00:43:29] Speaker 07:
Thank you, Your Honor.

[00:43:34] Speaker 07:
We're not asking that allies signal be thrown out.

[00:43:37] Speaker 07:
We're saying it doesn't apply in certain limited circumstances.

[00:43:40] Speaker 07:
And while equity is the important principle, equity follows the law.

[00:43:44] Speaker 07:
And the fact that the agency doesn't have authority should matter a lot to the equitable analysis even.

[00:43:50] Speaker 07:
So with respect to the practical consequences, some of the consequences that people are fighting over are economic consequences.

[00:43:58] Speaker 07:
And these are about essentially

[00:44:00] Speaker 07:
you know, whose ox is getting gored, which side of the industry, those who have asked for extensions and fought this rule because they thought it was unlawful, and it turns out they were right, or that they should take on additional consequences.

[00:44:12] Speaker 08:
And for which it's our own problem, that is, the panel made a mistake in the majority.

[00:44:16] Speaker 08:
I guess I don't... We apologize to the extent we can.

[00:44:19] Speaker 08:
But we're still wherever we are now.

[00:44:21] Speaker 07:
We are, and I think...

[00:44:23] Speaker 07:
And I guess I'm not trying to attack the panel.

[00:44:25] Speaker 07:
My point is merely that that is part of the equitable picture that the court needs to look at, that there has been that economic in the past.

[00:44:33] Speaker 07:
As to the health, as they recognize that there's no deaths that are being caused by mercury, they haven't alleged that ever.

[00:44:41] Speaker 07:
Mercury comes from the particulate matter, so that goes to the co-benefits issue, which I think... That is an issue that

[00:44:47] Speaker 08:
This is no longer a question of authority, right?

[00:44:51] Speaker 08:
The only issue the court decided was you had to consider costs.

[00:44:55] Speaker 08:
The question of whether, in considering costs, they can consider co-benefits.

[00:45:01] Speaker 08:
If you think that's an authority issue, then everything has to be an authority issue.

[00:45:04] Speaker 07:
I don't think that's an authority issue.

[00:45:06] Speaker 07:
You don't.

[00:45:06] Speaker 07:
I'm fitting that with an allied signal analysis, that to the extent you're looking at the disruptive consequences, you should think about which consequences are relevant ones.

[00:45:15] Speaker 07:
And which ones are relevant should be guided by what the statute's addressing.

[00:45:18] Speaker 07:
This is a statute that's about hazardous air pollutants.

[00:45:21] Speaker 07:
So you'd think the disruptive consequences that are based on health would look at the disruptive consequences of hazardous air pollutants, which is why I returned to that $4 to $6 million, which is the quantifiable amount that's tied to the hazardous air pollutant issue, which is mercury.

[00:45:35] Speaker 07:
So I think that's relevant on the health benefit side of it.

[00:45:38] Speaker 07:
And as to the seriousness of the deficiency, the error is not something that can be cured.

[00:45:44] Speaker 07:
It's the lack of authority.

[00:45:46] Speaker 07:
They're going to start over.

[00:45:46] Speaker 07:
They will have authority in the future once they do it right.

[00:45:49] Speaker 07:
But you can't cure the lack of authority they've had in the past, which is why this is kind of an unusual thing to try to apply in the allied signal context in the first place.

[00:46:01] Speaker 07:
I thought my time was up.

[00:46:02] Speaker 07:
I guess I have a little bit more.

[00:46:04] Speaker 08:
No, that, yeah, you're over now, actually.

[00:46:06] Speaker 07:
Oh, that's coming up.

[00:46:08] Speaker 07:
I apologize.

[00:46:08] Speaker 07:
That's all right.

[00:46:09] Speaker 08:
Let me just ask if anybody on the panel has any questions.

[00:46:12] Speaker 08:
All right.

[00:46:12] Speaker 08:
Thank you.

[00:46:12] Speaker 08:
Very good argument on all sides.

[00:46:13] Speaker 08:
We appreciate it.

[00:46:14] Speaker 08:
We'll take it under submission.