[00:00:00] Speaker 02: 14-1145, Wild Earth Audience at El Petitioners vs. Environmental Protection Agency. [00:00:06] Speaker 02: Mr. Court for Petitioners, Mr. Link for the Respondent. [00:00:57] Speaker 03: Good morning, Your Honor. [00:00:59] Speaker 03: May it please the court, Paul Court, for petitioners. [00:01:02] Speaker 03: Petitioners here represent residents of some of the most polluted locations in the country who continue to fight for EPA to apply the strict requirements of the Clean Air Act to finally address the problem of fine particle pollution, or PM2.5, which is one of the deadliest forms of pollution covered by the Act. [00:01:22] Speaker 03: My plan this morning is to first review why EPA had no authority to reset the statutory deadlines in this classification rule, and second, to review how this rule continues to have legal consequences and why a remedy from this court is still important. [00:01:40] Speaker 02: Can I adjust your plan just a little bit? [00:01:41] Speaker 02: Of course. [00:01:42] Speaker 02: And start with the question of jurisdiction, which I think you were suggesting would be the back end. [00:01:50] Speaker 02: If we could just start there. [00:01:52] Speaker 02: I think they're potentially different jurisdictional arguments with respect to 97 versus 2006. [00:01:58] Speaker 02: And, or at least, let's just, let's focus on them in order. [00:02:04] Speaker 02: With 97, we have three potential jurisdictions that are an issue, as I understand it. [00:02:11] Speaker 02: As to two of them, Libby and, is it South Coast, I think, they have clean data determinations? [00:02:17] Speaker 02: Or are about to? [00:02:19] Speaker 02: Sort of. [00:02:20] Speaker 03: Libby has had a final clean data determination. [00:02:23] Speaker 03: Okay. [00:02:23] Speaker 03: South Coast had one proposed last year. [00:02:26] Speaker 03: But EPA has not finalized that. [00:02:29] Speaker 03: We have active litigation around that reclassification request. [00:02:36] Speaker 03: And in a recent submittal to the court, in that litigation, EPA has said that they are in the process of analyzing new air quality information. [00:02:45] Speaker 02: When you say reclassification, is that, I don't know all the terminology, but a clean data determination would be considered a reclassification? [00:02:53] Speaker 02: No. [00:02:53] Speaker 03: So there is an enforcement action going on, again, the Northern District of California, saying South Coast and San Joaquin have [00:03:05] Speaker 03: for the 97 standards did not meet the moderate area attainment deadline, and so need to be reclassified to serious with new planning requirements. [00:03:16] Speaker 03: EPA's response for South Coast has been to propose, well, they're clean now, so we don't need to reclassify them. [00:03:24] Speaker 03: But they've only proposed that a new air quality data, as I said, is calling that into question. [00:03:29] Speaker 03: And so that is far from a settled issue around South Coast. [00:03:32] Speaker 02: OK. [00:03:34] Speaker 02: Let's focus on Libya, and then we can just talk for a second about why the South Coast is meaningfully different. [00:03:39] Speaker 02: But with respect to a jurisdiction for which there's already been a clean data determination. [00:03:44] Speaker 02: then why is the dispute live as to them? [00:03:47] Speaker 03: Why wouldn't it be moved? [00:03:50] Speaker 03: I'm a little concerned that we're looking at it the wrong way. [00:03:52] Speaker 03: The claim here is that the classification rule violates the Clean Air Act. [00:04:00] Speaker 03: And it's not specific to Libby or Salton Coast or San Joaquin. [00:04:07] Speaker 03: The whole classification rule changes statutory deadlines [00:04:12] Speaker 03: And so if there's any legal consequence of that rulemaking, then the court has jurisdiction. [00:04:21] Speaker 02: No, no. [00:04:23] Speaker 02: I'm not sure that's right. [00:04:25] Speaker 02: In other words, suppose that there's nothing that can be done with respect to those three jurisdictions. [00:04:30] Speaker 02: the three that are found would have found to be a non-attainment vis-a-vis 97. [00:04:34] Speaker 02: Suppose we take them seriatim and we conclude that there's no effectual relief that could be granted with respect to any of them because they might be different reasons, but let's just suppose that's true. [00:04:44] Speaker 02: If that's true, then I don't think you would dispute that we would be lacking in jurisdiction. [00:04:50] Speaker 03: No, I think I still would dispute it because, again, this doesn't make a distinction [00:04:55] Speaker 03: between areas under the 97 standards and areas under the 2006 standards. [00:05:01] Speaker 03: But the rulemaking just resets all those deadlines in a single rulemaking. [00:05:07] Speaker 03: You couldn't say, well, we'll vacate the rule. [00:05:12] Speaker 03: for purposes of the 2006 standard, but we won't vacate it for purposes of the 97, so it's not set up that way. [00:05:18] Speaker 02: I understand that. [00:05:19] Speaker 02: My point is that there are a certain number of jurisdictions that are in non-attainment with respect to both, with respect to 97 and 2006. [00:05:26] Speaker 02: If we go through each one of those jurisdictions, I'm just taking a seriatim, and we find that with respect to each one, [00:05:33] Speaker 02: no factual relief can be granted, it's moot, or it's not ripe. [00:05:38] Speaker 02: If we take off every single one of them, then we don't have jurisdiction. [00:05:41] Speaker 03: Fair enough, but if you flip it around and you find there are consequences in even one of those jurisdictions, then we should be done. [00:05:48] Speaker 02: And I don't know a better way to do it than to take them one by one. [00:05:51] Speaker 03: Why don't we start with [00:05:52] Speaker 03: I think that's a good question. [00:05:55] Speaker 03: I think that's a good question. [00:05:59] Speaker 03: I think that's a good question. [00:06:03] Speaker 03: I think that's a good question. [00:06:08] Speaker 03: It is, again, theoretically possible that should that area fall out of attainment, they have not been re-designated, we will be back in this question of when various things were due and this classification rule has implications for figuring out that timing. [00:06:23] Speaker 02: Yeah, so I obviously want to start with the ones that are hardest for you and easiest for us for obvious reasons. [00:06:29] Speaker 02: Fine. [00:06:29] Speaker 02: So then if we deal with Libby, then we're with South Coast and San Joaquin Valley with respect to 97. [00:06:38] Speaker 02: With South Coast, I take it the question is, is it likely enough that the proposed rule that gives them a clean data determination will be finalized? [00:06:49] Speaker 02: If it is finalized, then they're in the same boat as Libby, but you have the point that you have is that we don't know that yet. [00:06:54] Speaker 02: Right. [00:06:55] Speaker 03: And I would say there, and maybe the government can speak to this, [00:07:01] Speaker 03: But my understanding is there is air quality data that shows they are not, in fact, attaining. [00:07:06] Speaker 03: And so that is calling everything into question. [00:07:09] Speaker 03: And I think it's unlikely that they will finalize that determination. [00:07:12] Speaker 02: With respect to 97? [00:07:13] Speaker 02: Yes. [00:07:14] Speaker 02: OK, then let's talk about the remaining one, which is? [00:07:18] Speaker 02: San Joaquin. [00:07:18] Speaker 02: San Joaquin, right. [00:07:20] Speaker 02: Now, with respect to San Joaquin, the situation is different because there's no clean data determination. [00:07:25] Speaker 02: In fact, we're in a different boat altogether. [00:07:28] Speaker 02: because they saw voluntary reclassification to serious, if I remember this correctly. [00:07:34] Speaker 02: And then they saw an extension. [00:07:37] Speaker 02: Yes. [00:07:37] Speaker 02: Now, in connection with the extension request, as I understand it, correct me if this is wrong, as I understand it, there's a submission of a plan in connection with the extension request. [00:07:48] Speaker 02: Right. [00:07:49] Speaker 02: So we're in a situation now where a plan has already been submitted. [00:07:53] Speaker 02: Yes. [00:07:54] Speaker 02: So what's the effect? [00:07:56] Speaker 02: If you were to prevail, what would be the forward looking effect vis-a-vis San Joaquin Valley if they've already submitted a plan? [00:08:03] Speaker 02: Right. [00:08:03] Speaker 02: Well, this plan is not approvable. [00:08:06] Speaker 03: I mean, and we explained... Not approvable? [00:08:07] Speaker 03: Not approvable by EPA. [00:08:09] Speaker 03: And we explained that plan was prepared [00:08:12] Speaker 03: before this Ninth Circuit decision came down that called into question this particular strategy that they use. [00:08:17] Speaker 02: So that plan... Then let's assume that it's denied. [00:08:21] Speaker 02: Okay. [00:08:21] Speaker 02: Okay, so then what happens then? [00:08:23] Speaker 02: Because as I understand it, and this may be wrong, but as I understand it, if it's denied, then what happens is that they only have 12 months [00:08:34] Speaker 02: to submit a more serious effort at a plan because they will have been found to, they will have been denied. [00:08:42] Speaker 02: And whereas what we're talking about is [00:08:46] Speaker 02: That seems like it puts you in a better situation than otherwise. [00:08:49] Speaker 03: No, because I don't think it's as clear as that. [00:08:51] Speaker 03: Well, first off, it may be denied or may be withdrawn. [00:08:57] Speaker 03: And so if it's withdrawn, then it has different repercussions. [00:09:03] Speaker 02: What would lead us to think that it might be withdrawn? [00:09:05] Speaker 02: That would be, I take it that's the jurisdiction's prerogative to withdraw? [00:09:08] Speaker 02: Yes. [00:09:09] Speaker 03: If the EPA says we're not going to be able to approve this plan, often what the districts will do is rather than get a disapproval, they'll withdraw the plan. [00:09:16] Speaker 03: I see. [00:09:17] Speaker 03: And this has happened various times in the San Joaquin Valley. [00:09:19] Speaker 03: But the San Joaquin example is a fairly clear example of how this reclassification rule continues to have legal consequences. [00:09:29] Speaker 03: Because in that reclassification request, [00:09:34] Speaker 03: San Joaquin asked for a voluntary reclassification, and they're only allowed to ask for a voluntary reclassification within 18 months of the moderate area plan deadline. [00:09:45] Speaker 03: And EPA said, we can give you that voluntary reclassification because we've reset that deadline. [00:09:53] Speaker 03: with a voluntary reclassification, they now have four years to submit that plan. [00:09:58] Speaker 03: Whereas under the statute, there's no way they would be entitled to that much time now. [00:10:04] Speaker 02: But the alternative universe would be that they would get something less than four years, which I think is 18 months. [00:10:09] Speaker 02: because they would be, because what would happen is, your best solution is, EPA is required as of the date of our decision to reclassify, well, I guess they automatically get reclassified. [00:10:21] Speaker 02: No, no, it's a finding. [00:10:22] Speaker 02: They make a finding and then they make serious. [00:10:24] Speaker 02: They make a finding, they classify, they set an 18-month deadline to submit a new plan. [00:10:28] Speaker 02: So what we're talking about is the difference between 18 months and four years. [00:10:31] Speaker 02: That's right. [00:10:32] Speaker 02: Now if EPA, as I understand it, if EPA then denies [00:10:36] Speaker 02: here. [00:10:36] Speaker 02: Take out a field withdrawal, because I wasn't focused on that. [00:10:40] Speaker 02: I understand. [00:10:41] Speaker 02: But let's just say we're in the universe of denial. [00:10:44] Speaker 02: Right. [00:10:44] Speaker 02: If it's denial, then it imposes a 12-month time frame. [00:10:48] Speaker 02: 18 months. [00:10:49] Speaker 02: Okay, it's still 18. [00:10:49] Speaker 02: So in other words, you're still as well off, because the best-case scenario is 18 months. [00:10:54] Speaker 03: Well, but when does that denial have to happen? [00:10:56] Speaker 03: I mean, the EPA is saying there's no obligation for them to have [00:11:03] Speaker 03: a serious area plan submitted and approved until 2019. [00:11:08] Speaker 03: They can sit on it for years, and there's no, you know, it would, there's nothing that necessarily, I mean, there are various lawsuits that we can bring if you sit on a plan for too long, but there's no guarantee that we will get a plan any sooner [00:11:27] Speaker 03: by their voluntary actions. [00:11:29] Speaker 03: And again, there's case law that says sort of voluntary actions are not sufficient to moot litigation like this. [00:11:36] Speaker 03: The point is there are clear legal consequences, and those legal consequences are to the detriment of petitioners who are seeking to have the strict deadlines of the Clean Air Act. [00:11:45] Speaker 03: imposed. [00:11:47] Speaker 03: Their argument on moodness was that these December 31st, 2014 deadlines have passed and so there are no continuing legal consequences. [00:11:56] Speaker 03: But we've identified that there are specific legal consequences that are tied to that due date. [00:12:02] Speaker 02: Yeah, and I think I'm with you on that because it seems to me the main potential legal consequence is the difference between 18 months and four years for the deadline to submit a plan. [00:12:12] Speaker 02: And then the question would be [00:12:14] Speaker 02: Is that difference, the delta between 18 months and four years, in fact an issue? [00:12:18] Speaker 02: Because even in the best case scenario for you, you still have 18 months. [00:12:23] Speaker 03: That's right. [00:12:24] Speaker 03: I mean, yes. [00:12:25] Speaker 03: I mean, we'd love to see EPA move faster. [00:12:29] Speaker 03: They can move faster. [00:12:31] Speaker 03: If they're so inclined to move fast here, then they can move fast under an 18-month clock as well. [00:12:37] Speaker 03: But as long as that four-year deadline is in place, there are a number of ways that EPA can sort of play the game and stretch out this planning process. [00:12:47] Speaker 03: And that is the legal consequence that we are trying to obviously eliminate. [00:12:53] Speaker 03: And by stretch out, you mean there's no finite time? [00:12:56] Speaker 03: So they could withdraw. [00:12:57] Speaker 03: So example, they could tell the district, look, if we disapprove your plan, you're going to have 18 months. [00:13:03] Speaker 03: If you withdraw that plan, your deadline isn't for another four years. [00:13:08] Speaker 03: And so you can draw this out. [00:13:11] Speaker 03: And so again, you pull on one thread of this subpart four statute, and the whole thing begins to unravel. [00:13:19] Speaker 03: And the basic point that I know we didn't start with is that EPA has no authority to rewrite these requirements of subpart 4. [00:13:28] Speaker 02: Well, before we get to that, and we will give you an opportunity to get to that, can we talk about 2006? [00:13:35] Speaker 02: Absolutely. [00:13:36] Speaker 02: So I think we've dealt with the three jurisdictions with respect to 1997. [00:13:41] Speaker 02: Right. [00:13:41] Speaker 02: Now, with respect to 2006, [00:13:45] Speaker 02: What's your argument as to why there's continuing possibility of harm with respect to 2006? [00:13:54] Speaker 03: Right. [00:13:55] Speaker 03: Again, it's not even a possibility. [00:13:56] Speaker 03: It's not even speculative now. [00:13:58] Speaker 03: So the South Coast submitted a request for judicial notice. [00:14:02] Speaker 03: with an October 20th, 2015 rulemaking. [00:14:06] Speaker 03: This is another voluntary reclassification of the South Coast now under the 2006 standard. [00:14:12] Speaker 03: And again, EPA is invoking this voluntary reclassification, giving the area four years [00:14:20] Speaker 03: of the air, but but more time than would be allowed under the statute at this stage and the best case scenario for you would be again. [00:14:32] Speaker 02: We're talking about 18 months. [00:14:33] Speaker 02: That's right. [00:14:34] Speaker 02: So what would happen is. [00:14:36] Speaker 02: If you were to win, across the board, you went under your statutory interpretation argument, and then you get a favorable ruling, and then the remedy would be the EPA then at that point is required to trigger the reclassification to serious. [00:14:50] Speaker 02: That's right. [00:14:50] Speaker 02: In which event, because it wasn't a voluntary reclassification, but it was involuntary, [00:14:55] Speaker 02: they would have 18 months within which to submit a serious plan as opposed to four years. [00:14:59] Speaker 04: Correct. [00:14:59] Speaker 02: Correct. [00:15:00] Speaker 02: And the best case for you on that one is South Coast because of voluntary reclassification is pending, is a pending matter. [00:15:07] Speaker 03: Exactly. [00:15:08] Speaker 03: It's pending and it sounds like there's also talk about similar action in Utah. [00:15:14] Speaker 03: And that's not in the record anywhere. [00:15:18] Speaker 02: But in addition... And is San Joaquin in the same boat, too, that there's a potential voluntary reclassification there? [00:15:24] Speaker 03: Yes, though I don't think that's been submitted yet. [00:15:29] Speaker 03: Yeah, so they're on track to miss the deadline and there are other repercussions from that. [00:15:37] Speaker 03: But the other benefit that we give, we get, of course, [00:15:42] Speaker 03: getting the statute put back in place, is that for all of those areas that have theoretically submitted a moderate area plan, have now sort of caught up, those plans have not been approved. [00:15:57] Speaker 03: And so again, there's this possibility. [00:15:59] Speaker 03: And we can speculate on all these things. [00:16:02] Speaker 03: But if those are withdrawn, or if they're not approved, or if they're sat on for a long time, [00:16:12] Speaker 03: There are ways, again, for EPA to delay the process beyond what would be allowed if the statute had applied. [00:16:17] Speaker 03: If the statute applied, EPA would be making findings that these various areas had failed to submit, and that would start various clocks. [00:16:26] Speaker 03: Now, those clocks can be pushed off. [00:16:28] Speaker 03: They can make those findings in the future. [00:16:31] Speaker 03: And again, you just start to pull on one piece of this and the whole thing begins to unravel. [00:16:39] Speaker 03: And back to your point about this distinction between 2006 and 97, I just... [00:16:46] Speaker 03: I don't think it matters. [00:16:47] Speaker 03: If there's one 2006 area or one 1997 area, it shows that there are continuing legal consequences from this rulemaking, and therefore the challenge to the rulemaking is not moot. [00:17:01] Speaker 03: You wouldn't sever and say the challenge is moot with respect to 1997 and not moot with respect to 2006, because it's the same rulemaking. [00:17:11] Speaker 03: It's the same change to the statute. [00:17:15] Speaker 02: I take your point that you wouldn't sever within 97 with respect to certain jurisdictions, but the rule has certain timelines for 97 and certain timelines for those. [00:17:25] Speaker 03: It resets all the deadlines to December 31, 2014. [00:17:28] Speaker 02: It does, but it's doing that from two sets of timelines. [00:17:36] Speaker 02: I mean if they had they coincided December 14, 2000. [00:17:39] Speaker 02: Yeah, but I'm 31st 2014 and then December 31st 2015, but right but but All right, we don't need to belabor it. [00:17:47] Speaker 03: Okay I see that I'm out of time. [00:17:50] Speaker 01: So I'll reserve the rest I wanted to ask a question on the merits and that is you say very frequently in the brief that you are not making any request for Backdating to use your term [00:18:06] Speaker 01: But you are asking for changes which would make it the case that various deadlines either have passed but under the rule have not passed or will pass sooner than they will pass under the rule. [00:18:26] Speaker 01: So it sounds like a distinction without a difference. [00:18:30] Speaker 03: No, and this is, I think, very important. [00:18:35] Speaker 03: So the deadlines, the liability, the duty flows from the statute. [00:18:44] Speaker 03: It's not triggered by some future agency action. [00:18:48] Speaker 03: It doesn't depend on EPA adopting any rule. [00:18:52] Speaker 03: That duty is already there. [00:18:54] Speaker 03: The findings of failure to submit that EPA will need to make if this classification rule is vacated do not create new duties. [00:19:07] Speaker 03: They are a determination that those pre-existing duties have been breached. [00:19:14] Speaker 03: And then, in making that finding, the rule sets out an 18-month deadline to resolve that failure with the possibility of sanctions. [00:19:24] Speaker 01: To follow it up, you are proposing that the court, in effect, require that EPA set a different set of deadlines [00:19:39] Speaker 01: In fact, that's what this whole argument about mootness has been about, a different set of deadlines than under the rule. [00:19:47] Speaker 01: And I'm just not sure it sounds to me like a verbal quibble to say that that's not backdating. [00:19:56] Speaker 03: No, we are not asking the court to set any deadlines at all. [00:20:01] Speaker 03: All of those deadlines are already spelled out in subpart four. [00:20:06] Speaker 03: What EPA has done in this rulemaking is to change all those statutory deadlines. [00:20:13] Speaker 03: And in effect, if you want to think about what's retroactive here, this rulemaking is an attempt to retroactively [00:20:24] Speaker 03: absolve the states from the fact that they missed all of these deadlines. [00:20:31] Speaker 02: That's a helpful characterization for your purposes, but what happened in the real world is that everybody was operating on the assumption that it was subpart one, and then it was our decision that triggered the need [00:20:43] Speaker 02: to take a look at that point and say, wait a minute, we've all been operating on the assumption that subpart one governs. [00:20:48] Speaker 02: Now it turns out subpart four governs. [00:20:50] Speaker 02: There's a bunch of deadlines that nobody was aware of. [00:20:51] Speaker 02: And we've got to figure out some way to deal with that in the aftermath of the D.C. [00:20:55] Speaker 02: Circuit's decision in N.R.D.C. [00:20:57] Speaker 03: Right. [00:20:57] Speaker 03: Well, the one one I would pick there is that that decision was not now [00:21:03] Speaker 03: subpart four applies. [00:21:05] Speaker 03: That decision was a decision that subpart four has always applied. [00:21:09] Speaker 02: Sure. [00:21:09] Speaker 02: I take that point about the way courts do statutory interpretation, but I'm just saying that the real world universe was that people were operating on the assumption [00:21:19] Speaker 02: that subpart one had always been the operative rule. [00:21:22] Speaker 02: It turns out subpart four had always been the operative rule. [00:21:25] Speaker 02: That's right. [00:21:25] Speaker 02: Nobody knew that until the time of the NRDC decision. [00:21:29] Speaker 02: That's right. [00:21:30] Speaker 02: And it just so happens that a lot of the timeframes by that point had already elapsed. [00:21:34] Speaker 03: Yeah, but so the Clean Air Act provides all of the tools, lays out exactly how this works when these deadlines have been missed. [00:21:42] Speaker 03: So it gives the authority under, you know, section. [00:21:45] Speaker 01: I have a question about the deadlines. [00:21:48] Speaker 01: I assume that Congress sets up the deadlines in order that a sensible planning process can go forward between the EPA and the states or areas within the state, I guess it turns out, can work out SIPs that are sensible and that [00:22:16] Speaker 01: and to make it possible for the compliance to take effect in a reasonably orderly way. [00:22:28] Speaker 01: You make it sound as if the only issue before us is fault. [00:22:34] Speaker 01: And you say that given the NRDC decision, the EPA was at fault and the states were at fault. [00:22:43] Speaker 01: But the consequence of what you're asking is that certain decisions that Congress contemplated taking place on a schedule will not take place on that schedule. [00:22:56] Speaker 01: but on a sharply compressed schedule. [00:23:00] Speaker 01: Isn't that a fair characterization? [00:23:02] Speaker 03: No, it's not. [00:23:04] Speaker 03: And I think this is an important point, too. [00:23:07] Speaker 03: Under the statute, for example, areas were given 18 months to prepare their moderate area plans. [00:23:15] Speaker 03: Upon a finding of failure to meet that moderate attainment deadline, they're given 18 months to prepare their plans. [00:23:22] Speaker 03: What needs to happen now when EPA makes these various findings of failure to submit, those states will get 18 months to prepare their plans. [00:23:32] Speaker 03: 18 months is plenty of time. [00:23:35] Speaker 02: But one point there is that the statute didn't just give jurisdiction 18 months, because if they ask for and get voluntary classification, they get four years. [00:23:44] Speaker 02: Exactly. [00:23:45] Speaker 02: But the way you're looking at it, [00:23:46] Speaker 02: That's no longer available. [00:23:47] Speaker 02: They never have that opportunity. [00:23:49] Speaker 02: That's true. [00:23:49] Speaker 02: And if we're trying to effectuate exactly the scheme that Congress wanted to put in place, an integral part of that scheme was the jurisdictions, because we care about proactive action, would have had four years if they asked for voluntary reclassification. [00:24:02] Speaker 02: And they get it. [00:24:05] Speaker 02: Congress wanted to encourage that. [00:24:06] Speaker 02: They've provided for that possibility. [00:24:08] Speaker 02: But then the regime that you're [00:24:11] Speaker 02: suggesting be implemented would eliminate that opportunity? [00:24:15] Speaker 03: It's true that that opportunity is eliminated, but there are two sides of what Congress envisioned here, okay? [00:24:21] Speaker 03: And overarching, beyond all these planning deadlines, was this goal of cleaning up the air within 10 years. [00:24:30] Speaker 03: And so we are now coming up on that 10-year mark for the 97 standards adopted nearly 20 years ago. [00:24:38] Speaker 03: And so to elevate this goal of giving states options for four years to adopt plans, to elevate that over the Congress's clear and frankly overriding goal of cleaning up the air is not a sensible balance. [00:24:55] Speaker 03: Congress spoke to what happens when deadlines are missed. [00:25:00] Speaker 03: The deadlines are in the statute. [00:25:01] Speaker 03: EPA can't reset those deadlines. [00:25:03] Speaker 03: That's the law, right? [00:25:05] Speaker 03: Subpart 4 has always applied. [00:25:08] Speaker 03: There's no authority to reset them. [00:25:11] Speaker 03: Congress has decided 18 months is a fair amount of time to provide these states that have missed the deadline and struck that balance of pushing those states along and making sure that the air is ultimately clean. [00:25:26] Speaker 02: You could look at it that way, but you could also say that Congress struck the balance to give jurisdictions four years if these circumstances present themselves, and no jurisdiction would have that opportunity under the way you're looking at the statute. [00:25:38] Speaker 03: But I don't think there's a legal construction that gets you there. [00:25:43] Speaker 02: A legal construction of what? [00:25:45] Speaker 02: Of the statute. [00:25:47] Speaker 02: Why? [00:25:47] Speaker 02: There are provisions that say, nobody can deny, and I don't think the EPA would deny, that you have dates that are fixed in law that you rely on. [00:25:58] Speaker 02: And no authority to change those dates. [00:26:01] Speaker 02: Well, sure, those particular dates. [00:26:05] Speaker 02: But those dates are built upon a certain set of assumptions. [00:26:08] Speaker 02: and that are in the statute and one of the assumptions that are in the statute that's in the statute is that there could be the possibility of not having 18 months but four years because we care about jurisdictions coming into voluntarily reclassifying themselves and having a proactive resolution. [00:26:25] Speaker 03: I think you need to revisit why those areas are given four years. [00:26:29] Speaker 03: So those areas are given four years [00:26:33] Speaker 03: in expectation that there's an early acknowledgement that they have a serious problem. [00:26:39] Speaker 03: And because when they voluntarily reclassify, they're voluntarily agreeing to adopt more aggressive controls. [00:26:47] Speaker 03: And Congress said that's a good thing because that will clean the air and lead us to our overriding goal of cleaning the air. [00:26:58] Speaker 03: That four-year flexibility does not serve congressional purposes at this point. [00:27:04] Speaker 03: Right? [00:27:04] Speaker 03: That four-year flexibility just allows for delay. [00:27:09] Speaker 03: It allows for the air to stay dirty. [00:27:11] Speaker 01: If the tight-off between the advantages from voluntary action by the states and the states being dragged, kicking and screaming into some sort of compliance, [00:27:27] Speaker 01: Congress has specified that trade-off. [00:27:30] Speaker 01: I'm not sure how that trade-off is different just because it's moved out in time. [00:27:39] Speaker 03: Because at this point, again, petitioners, their members, have been suffering the unfairness of all this delay. [00:27:47] Speaker 03: And so [00:27:50] Speaker 03: I don't think there's a reasonable argument, frankly, and I don't think EPA has made this argument, that Congress would have intended at this point, at this late stage, to continue to draw out this schedule [00:28:08] Speaker 02: But do you think, is your argument that Congress actually, in the statute, foresaw the possibility that the entire regime would suppose it was under subpart one, but then lo and behold, it's actually under subpart four, and even if it's under subpart four, we still want the subpart four deadlines to apply, we being Congress, even though that decision that it's subpart four was made after some of those deadlines have already gone? [00:28:31] Speaker 03: Yeah, no, I think Congress anticipated that the deadlines in subpart four would be met. [00:28:38] Speaker 02: If you thought that Subpart 4 applied. [00:28:40] Speaker 02: They definitely should be met if Subpart 4 was the regime that applied. [00:28:43] Speaker 02: And it did apply. [00:28:45] Speaker 02: It turns out it did. [00:28:46] Speaker 02: Right. [00:28:46] Speaker 02: But I guess, I don't understand your argument to be. [00:28:50] Speaker 03: But again, so the suggestion is that EPA can benefit from its illegal action. [00:28:58] Speaker 03: that it can act illegally, adopt rules that conflict with the statute, and thereby extend things out however it sees fit. [00:29:09] Speaker 03: And I don't think that's the rule of law that governs these cases. [00:29:14] Speaker 03: Subpart 4 has always applied. [00:29:16] Speaker 03: Congress was clear about the requirements of Subpart 4. [00:29:19] Speaker 03: EPA doesn't have authority to change those. [00:29:24] Speaker 02: And we're leaving out the states, who the states were operating. [00:29:28] Speaker 03: And we're leaving out the breathing public. [00:29:30] Speaker 02: No, no, I don't mean to leave them out at all. [00:29:32] Speaker 02: Of course you're right that the ultimate goal of the statute is to benefit the public. [00:29:37] Speaker 02: There's no doubt about that. [00:29:38] Speaker 02: But we're in a regime now where the deadlines that everybody would have assumed would have applied had everybody known at the outset that subpart four set forth the governing framework, that's gone. [00:29:50] Speaker 02: We can't reconstruct that universe. [00:29:52] Speaker 02: So we're talking about what do we think is a sensible universe to construct now in light of everything that Congress has told us about how to balance these considerations. [00:30:00] Speaker 03: And again, I would just reemphasize. [00:30:03] Speaker 03: We are talking about giving states 18 months to prepare those plans. [00:30:07] Speaker 03: That's the same amount of time that Congress gave areas to adopt moderate area plans. [00:30:12] Speaker 03: It's the same amount of time they gave areas to adopt serious area plans following a failure to attain. [00:30:18] Speaker 03: 18 months is not an unreasonable demand on these states, especially in light of how far beyond schedule we are in cleaning up the air. [00:30:31] Speaker 03: Okay. [00:30:31] Speaker 03: Thank you. [00:30:53] Speaker 00: Good morning, Your Honor and Judge Williams. [00:30:56] Speaker 00: My name is Brian Link from the Department of Justice Environmental Defense Section. [00:31:00] Speaker 00: With me at council table is Karen Bianco of EPA. [00:31:04] Speaker 00: I'd like to start in the same manner you instructed Petitioners Council by addressing first the 1997 and 2006 areas and why we think there's no practical further relief to be gained from vacating the land. [00:31:16] Speaker 01: Let me ask you a question, sort of a general question that relates to that. [00:31:22] Speaker 01: Petitioners argue that if we were to find it muteness, vacator of the rule would be appropriate. [00:31:30] Speaker 01: And I don't honestly know if that's true, but let's assume that it is. [00:31:37] Speaker 01: Do you think that vacator of the rule would have consequences? [00:31:44] Speaker 00: I don't think vacatur of the rule would meaningfully benefit the interests asserted here by the petitioners, assuming, as I think I understand from their argument today and their briefs, that they are not seeking retroactive administrative findings. [00:32:00] Speaker 00: And I can explain more of the details about that. [00:32:02] Speaker 00: I do think, however, vacatur of the rule would have a detrimental impact on the states, which are now working to make their plan submissions in reliance on this rule. [00:32:14] Speaker 00: Obviously, states have made submissions to meet the December 31, 2014 date. [00:32:21] Speaker 00: One consequence of vacating the rule would be that right now, with this rule in place, [00:32:27] Speaker 00: earlier subpart one submission deadlines had been superseded. [00:32:32] Speaker 00: If this rule were to go off the books, the earlier 2007 and 2008 implementation rules would still be in place because they were never vacated. [00:32:41] Speaker 00: And so it would actually engender even more confusion at the state level about what deadlines now apply for further submissions. [00:32:48] Speaker 00: And if I may add one other point, there is actually a lawsuit pending right now in the Northern District of California to enforce findings of failure to submit based on that December 31, 2014 date. [00:33:02] Speaker 00: So if this court were to then vacate this rule, it would also potentially affect the rights of litigants in that litigation. [00:33:09] Speaker 01: I'm hearing you correctly. [00:33:12] Speaker 01: whatever the consequences in terms of clean air and efforts by the states and so forth, there is a consequence in terms of sort of orderly proceeding. [00:33:25] Speaker 01: Is that correct? [00:33:26] Speaker 00: I believe that there is and I will, I think I can also demonstrate to you that on the other side of this there is not a tangible consequence in terms of clean air. [00:33:36] Speaker 00: In other words, [00:33:38] Speaker 00: On that side of the equation, vacating the rule simply puts us in the same status quo we have now. [00:33:45] Speaker 00: I'll have to explain the details of that, but I think I can make that point. [00:33:50] Speaker 00: I do also want to address one other... Can I just understand one thing? [00:33:53] Speaker 02: You're not taking the position, I take it, that if the rule would be vacated, then we're back to the regime where the 2007 and 2008 rules exist, and then we're stuck with that regime. [00:34:03] Speaker 02: Because that's no good either. [00:34:05] Speaker 00: That everyone is on notice now that subpart 4 applies to PM2.5 implementation. [00:34:11] Speaker 00: That would not change. [00:34:13] Speaker 00: Nonetheless, it would certainly disrupt the planning and the understanding of states as to how they should make further submissions going from this point if the court were to suddenly take away. [00:34:21] Speaker 00: Which happens any time you vacate a rule. [00:34:23] Speaker 02: Absolutely. [00:34:23] Speaker 02: I take it that the existing set of rules have engendered certain assumptions, just like the 2007-2008 rules engendered certain assumptions. [00:34:31] Speaker 00: That is undoubtedly true. [00:34:35] Speaker 00: showing why there's not a tangible redress to be had here in terms of clean air. [00:34:39] Speaker 00: I'd like to also address the premise of your honor's question, Judge Williams, which was that mootness requires vacatur. [00:34:47] Speaker 00: And I would refer you to the case of Chamber of Commerce versus EPA, 642 F3 at 211. [00:34:55] Speaker 00: In that case, this court discussed the fact that the Munsingware and Meckling line of case law that petitioners are relying on does not automatically apply [00:35:03] Speaker 00: to agency administrative rules, because agency rules continue to have vitality even where the particular dispute presented was concerning that rule has become moot. [00:35:13] Speaker 00: And here, as I said, vacating the rule would disrupt at minimum the planning efforts and understanding of the states that are working to bring their sips into compliance with subpart four. [00:35:23] Speaker 00: So while vacating the rule, I believe, would not meaningfully benefit the petitioners. [00:35:27] Speaker 00: It would be to the detriment of the public interest and is therefore inappropriate as an equitable remedy. [00:35:31] Speaker 02: So can we talk then about whether the relief requested by Wild Earth would have practical consequences given where we are now? [00:35:42] Speaker 02: Certainly. [00:35:43] Speaker 02: Let's start with 2006. [00:35:46] Speaker 02: And if we start with 2006, there's at least South Coast, I think, that has sought voluntary reclassification. [00:35:54] Speaker 02: And I thought San Joaquin Valley was in the same boat. [00:35:57] Speaker 02: So they both have [00:36:00] Speaker 02: the possibility of voluntary reclassification pending. [00:36:03] Speaker 02: Is it true then that if that voluntary reclassification is granted, then we're talking about a difference between 18 months to submit a plan versus four years to submit a plan? [00:36:13] Speaker 00: EPA views it's the ability or the timing of when [00:36:17] Speaker 00: It can reclassify under 7513B1, and that's the discretionary reclassification procedure you're talking about that allows four years. [00:36:25] Speaker 00: The EPA does not agree that it can only use that procedure for the first 18 months following a submission. [00:36:33] Speaker 00: And when I say that, this has been EPA's view for over 20 years. [00:36:36] Speaker 00: 57 Federal Register at 13537. [00:36:40] Speaker 00: is an excerpt from the general preamble, the first time EPA discussed in a preamble implementation of the Clean Air Act amendments, and it stated its view then that although 7513B1 subparagraphs A and B refer to 18-month time periods, that those aren't an absolute restriction on when EPA can reclassify this provision. [00:37:01] Speaker 00: EPA's position is that it can do it at any time prior to the deadline for determining attainment [00:37:07] Speaker 00: if it determines that such area will not timely attain okay well now and that's coming up in a few weeks right sure and so if EPA at any point chooses to reclassify the provision petitioners may disagree with that premise of law and they can challenge the decision to reclassify and claim and argue that it's unlawful and a court will decide that maybe I'm not understanding and correct me where my mistaken assumption is [00:37:31] Speaker 02: The attainment deadline is December 31st. [00:37:34] Speaker 02: Yes, of this year. [00:37:36] Speaker 00: And the deadline to then determine whether the area is attained is June of next year, six months following the attainment deadline. [00:37:42] Speaker 00: So EPA has until June 30, 2016 to make the determination of whether it's attained or not. [00:37:49] Speaker 02: But in terms of approving voluntary reclassification, [00:37:52] Speaker 02: there's voluntary classification, motions, petitions, whatever you call them, pending now, at least with respect to one jurisdiction and maybe another. [00:37:59] Speaker 02: That's correct. [00:38:00] Speaker 02: And if that's, then I take it you would act on that. [00:38:04] Speaker 00: Absolutely. [00:38:05] Speaker 02: So presumably you would act on it by December 31st. [00:38:08] Speaker 00: Well, I guess my point was that EPA's view is that it technically has the discretion under the statute to act on those [00:38:17] Speaker 00: as long as it does so prior to the point where it has a deadline to determine attainment. [00:38:21] Speaker 00: And that view is not going to change whether the rule is vacated or not. [00:38:25] Speaker 00: Again, that view has been stated in the Federal Register for 23 years. [00:38:28] Speaker 00: So vacating the rule in this instance does nothing to change the status quo. [00:38:32] Speaker 02: It remains as it is. [00:38:33] Speaker 02: Here's my question. [00:38:34] Speaker 02: So even the way you're describing it, you would resolve the voluntary reclassification by December 31st because that's the attainment deadline. [00:38:41] Speaker 02: So even under your view, you would resolve it by then? [00:38:44] Speaker 00: My understanding is the EPA believes it would have the discretion at any point prior to June 30th when it has a deadline to determine attainment. [00:38:52] Speaker 00: Okay, so let's take- Then it can still reclassify under the discretionary- Okay, so let's extend it to June 30th. [00:38:57] Speaker 02: I don't know about that, but let's just extend it to June 30th. [00:38:59] Speaker 02: As I understand it, the practical consequence of granting voluntary reclassification by June 30th is that at that point there would be four years to submit a plan. [00:39:09] Speaker 02: Whereas in an alternate universe where voluntary reclassification is unavailable, which is the universe that Wild Earth is arguing for, there would only be 18 months. [00:39:20] Speaker 00: That's true, but my point about that though is [00:39:24] Speaker 00: whether the court vacates the rule or not, EPA still has an independent decision to make in any particular area about whether to reclassify. [00:39:34] Speaker 00: And so even without this rule in place, it could still, under its previously adopted position and view, make the decision to reclassify under the discretionary provision. [00:39:44] Speaker 00: And that would set in place the four-year period. [00:39:46] Speaker 00: Now, that decision is then subject to challenge in a separate action, but it's not an issue that's right here now. [00:39:53] Speaker 00: And that's why vacating this room does nothing to affect, and as a practical matter, the status quo with respect to any of those areas. [00:40:00] Speaker 02: But why wouldn't we look at what the possible and probably likely consequences are? [00:40:06] Speaker 02: I mean, you're right that something else has to happen. [00:40:10] Speaker 02: Right. [00:40:10] Speaker 02: But we have to look to see whether that something else is going to happen. [00:40:13] Speaker 00: Well, I guess my point is that it's basically still the same forward-looking scenario [00:40:18] Speaker 00: with or without the rule in place for an area. [00:40:22] Speaker 00: Let's take a more specific example. [00:40:25] Speaker 00: And it might even be easier to talk about 1997, because we went through the colloquy of the San Joaquin Valley, it has submitted a serious, it has already been reclassified, submitted a serious area plan, and when you ask council what possible further issue could there be for us to consider, he said, well, what if the plan isn't approvable? [00:40:46] Speaker 00: Well, the statute deals with that. [00:40:49] Speaker 00: Again, and nothing in the rule impedes the statute. [00:40:53] Speaker 00: There is, if the plan, if you're able to decide that they agree, the plan can't be approved and they disapproved it, under 7509A that will start a two-year clock, an 18-month clock on sanctions and a two-year clock on the promulgation of a federal implementation plan or FIP. [00:41:09] Speaker 00: Those mechanisms will spring into place. [00:41:11] Speaker 00: The rule does not prevent them from doing so. [00:41:14] Speaker 02: If EPA were to approve it, well, sorry. [00:41:16] Speaker 02: What about the possibility of withdrawal that was mentioned as an additional possibility that it could be an ongoing negotiation with respect to withdrawal? [00:41:22] Speaker 02: Does that change things in your view? [00:41:24] Speaker 00: If, well, if EPA takes, the EPA has a deadline as well to act on the plan once it's been submitted, 18 months under 7410K2. [00:41:33] Speaker 00: And again, nothing in this rule reports to change how 7410K2 works. [00:41:38] Speaker 00: So if EPA takes too long, a citizen suit can be filed to enforce that deadline. [00:41:42] Speaker 00: Nothing in the rule changes that. [00:41:44] Speaker 00: As I noted, there's already a deadline suit filed in the Northern District of California to enforce the timing of this failure to submit decisions in response to the December 31st, 2014 deadline. [00:41:57] Speaker 00: That will proceed as these matters are supposed to. [00:41:59] Speaker 00: Nothing in the rule changes how that works. [00:42:02] Speaker 00: Um, if I can consider another 1997 area, uh, south, well, again, the Libby area, which has a final, uh, clean data determination in place. [00:42:13] Speaker 00: And what council said was, well, what if they, what if they slip out of attainment in the future? [00:42:17] Speaker 00: Well, [00:42:19] Speaker 00: The clean data determination, it's not the same as reclassification. [00:42:23] Speaker 00: That re-designation, that was one of your questions. [00:42:25] Speaker 00: What it does is it suspends all moderate area planning requirements. [00:42:29] Speaker 00: And the way that that policy works has been upheld by the court in the NRDC versus EPA case, 571 at third at 1259 to 1261. [00:42:38] Speaker 00: So I understand counsel may not agree with that policy. [00:42:41] Speaker 00: This court has already considered his objections to it and has upheld it. [00:42:44] Speaker 02: So can you help me then on, so that's 97. [00:42:48] Speaker 02: But on 2006, I guess I'm still stuck on not understanding why there's no practical consequence vis-a-vis a jurisdiction that's asking for voluntary reclassification. [00:42:58] Speaker 02: Because as I understand it, and you just tell me where I'm wrong. [00:43:01] Speaker 02: As I understand it, when you ask for voluntary reclassification, if you get it, if it's granted, you have four years to submit a plan. [00:43:09] Speaker 02: If not, in an alternate universe, you only have 18 months. [00:43:13] Speaker 02: That's a practical difference. [00:43:14] Speaker 00: This is what I think I understand to be the reason petitioners would say relief's meaningful and why I disagree. [00:43:20] Speaker 00: What they believe, if I understand their brief right, is that EPA only had an 18-month window [00:43:29] Speaker 00: in which to decide to reclassify an area under 75-13B1. [00:43:34] Speaker 00: And that 18-month window opened way back before this court even announced the NRDC decision. [00:43:40] Speaker 00: EPA disagrees that there is an 18-month window. [00:43:43] Speaker 00: EPA believes it has the ability, the discretion, to reclassify an area under that provision up until the point where it meets its final deadline to determine attainment. [00:43:53] Speaker 00: And as I say, that EPA didn't create that position in this rule. [00:43:57] Speaker 00: It's always held to that view. [00:43:59] Speaker 00: And so vacating the rule wouldn't change the fact that that is still EPA's position about what its discretion is of the timing of a discretionary reclassification. [00:44:07] Speaker 00: So their premise is wrong. [00:44:09] Speaker 00: They believe that the only reason EPA can still [00:44:13] Speaker 00: have the option to reclassify an area by discretion is because of the fact that it created this December 31st deadline. [00:44:21] Speaker 00: But that's not true, at least not under EPA's view of the act. [00:44:24] Speaker 00: The act already gives EPA the discretion to do it at any point up until its final deadline to determine attainment has run. [00:44:32] Speaker 02: And that, I see. [00:44:33] Speaker 02: And so your argument is under the rule, the attainment deadline never changed. [00:44:38] Speaker 02: Exactly. [00:44:38] Speaker 02: So it is so. [00:44:39] Speaker 00: So the rule has no impact on this question whatsoever. [00:44:42] Speaker 00: Now they disagree with EPA's view. [00:44:43] Speaker 00: But the rule doesn't affect that point of law, that dispute of law between the parties. [00:44:49] Speaker 00: It didn't create that dispute. [00:44:50] Speaker 00: It's not right for decision here. [00:44:52] Speaker 00: Vacating the rule also is not going to change it. [00:44:54] Speaker 00: EPA would still, in its view, have the discretion to look at an area at a point prior to June 30th of next year and say, okay, we don't think this area is going to attain. [00:45:03] Speaker 00: We're going to reclassify it under 7513B1. [00:45:06] Speaker 00: And when they do it, I understand a claimant that agrees with a petitioner's counsel would challenge that as unlawful, and then a court could decide that at the appropriate time. [00:45:16] Speaker 00: But it's not a question right here, and vacating the rule is not going to affect it either way. [00:45:20] Speaker 02: And when you say it's not a question right here, I take it their argument is that that's just wrong. [00:45:24] Speaker 00: The reason I say it's not right here is because that was not part of the scope of this rulemaking was determining when EPA can or cannot reclassify by discretion. [00:45:34] Speaker 00: That's a position that's already stated to the public before. [00:45:36] Speaker 00: Stated to the public as long ago as 1992. [00:45:40] Speaker 01: If I understand what you're saying correctly, [00:45:44] Speaker 01: a victory for the petitioners here would change the context fairly radically for that litigation, that is to say for litigation over the EPA's interpretation of 7513B1. [00:46:07] Speaker 00: I don't think it should if I am understanding correctly that they are not seeking [00:46:13] Speaker 00: to have EPA make retroactive findings. [00:46:15] Speaker 00: Because one of the things I wanted to address earlier in the comments during this argument was the idea that there are things that have happened by operation of law already. [00:46:24] Speaker 00: And I just want to make sure I read to the court the text of, I think, the most important provision. [00:46:29] Speaker 00: And this is the reclassification by operation of law under 7513B2. [00:46:33] Speaker 00: It says, [00:46:35] Speaker 00: If the administrator finds that any modern area is not in attainment after the applicable date, the area shall be reclassified by operation of law. [00:46:44] Speaker 00: A predicate finding by EPA is necessary. [00:46:46] Speaker 00: And so they're wrong when they say that it's already happened and that therefore it doesn't matter that there was this long period of time when everyone was operating under the assumption that subpart 1 applied and then the court announced differently in the NRDC decision. [00:47:00] Speaker 00: It absolutely matters because this mechanism, this operation of law mechanism, doesn't become triggered until EPA takes affirmative administrative action. [00:47:08] Speaker 00: But the petitioners have said here that they are not seeking somehow to have that be the outcome of this case today, that EPA go back and do that. [00:47:16] Speaker 00: If they're not seeking, therefore, retroactive, backdated administrative findings, then there's really no difference between just leaving the rule in place [00:47:24] Speaker 00: for them and vacating it. [00:47:27] Speaker 00: There's no tangible additional benefit. [00:47:29] Speaker 00: All they would be doing is creating the same status quo. [00:47:31] Speaker 02: No, but I think their argument is that once we hand down a decision that's in their favor, it's true that you have to take that step, but you have no choice but to take that step. [00:47:41] Speaker 00: Well, the court didn't agree with that in Sierra Club 1 or Sierra Club 2, cases we cited in our brief. [00:47:46] Speaker 00: And those were cases where the court agreed that EPA, in a deadline lawsuit, should not be compelled to issue a backdated non-attainment finding for an area. [00:47:55] Speaker 00: where the time had elapsed. [00:47:56] Speaker 02: But aren't we going to the merits then if we're talking about Sierra Club? [00:47:59] Speaker 02: I mean, I thought we were talking about jurisdiction. [00:48:00] Speaker 00: Well, I guess my only point there is that they can't possibly, it doesn't seem from their argument that they're asking the DPA backdate findings. [00:48:08] Speaker 00: If they were, they would be wrong, I believe, on the merits under Sierra Club 1 and 2 and this court's recent analysis in treasure states. [00:48:16] Speaker 02: I don't think they're asking to backdate because what they're saying is [00:48:19] Speaker 02: Once the decision comes down, then you have to, you don't have a choice but to take the action to reclassify as serious. [00:48:26] Speaker 02: And that has tangible consequences. [00:48:27] Speaker 00: But if they're not asking to backdate, then there's no difference between simply the agency doing what it's already, making the decisions it already do now. [00:48:35] Speaker 00: I mean, again, December 31st, 2014 was more than six months ago. [00:48:39] Speaker 00: The six months is run. [00:48:40] Speaker 00: If there's an area that failed to submit a plan, EPA is due to make a finding, a failure to submit. [00:48:45] Speaker 00: That's already true, even with the rule in place. [00:48:47] Speaker 00: So what difference would it make to vacate the rule in that instance? [00:48:50] Speaker 02: It's still the same status quo. [00:48:52] Speaker 02: The difference would be whether you have four years or 18 months. [00:48:54] Speaker 00: And on that point, my point is that they are wrong in suggesting that the only thing that makes the discretionary mechanism available to the EPA is the idea that they have 18 months from December 31st of last year. [00:49:08] Speaker 00: EPA believes its view, as stated to the public even prior to this rulemaking, is that it can use that mechanism at any point prior to the final deadline for determining attainment. [00:49:19] Speaker 00: So if this rule didn't exist, EPA would still believe that because the subpart one attainment date doesn't run until this December 31st, and the six months for EPA to determine attainment under 7513B2 doesn't run until next June 30th, that EPA still has right now another roughly seven months in which it could use B1 if it shows. [00:49:43] Speaker 00: That is its position. [00:49:44] Speaker 00: And that was the position before this rule was issued. [00:49:47] Speaker 00: It's been the position for 20 years. [00:49:50] Speaker 00: And that's been EVA's practice. [00:49:52] Speaker 00: It has, in fact, at various points, reclassified areas. [00:49:56] Speaker 00: outside of that 18-month window as long as it did it before the final deadline under B2. [00:50:01] Speaker 02: And take it one step further. [00:50:03] Speaker 02: So they have until, so we're at June 29th. [00:50:05] Speaker 02: Right. [00:50:06] Speaker 02: And at June 29th of 2016, EPA has to make a determination by the next day of whether to voluntarily reclassify. [00:50:13] Speaker 02: Am I understanding that right? [00:50:15] Speaker 00: That would be the latest that it believes it has discretion under the statute. [00:50:18] Speaker 02: Yeah. [00:50:19] Speaker 02: So then on that date it has to make a decision yes or no on voluntary reclassification. [00:50:23] Speaker 02: And if it says yes, then the jurisdiction that gets the benefit of voluntary reclassification has four years to submit a plan. [00:50:33] Speaker 00: But that view, again, was not created by this rulemaking. [00:50:37] Speaker 00: It already had been EPA's position. [00:50:39] Speaker 00: It's been the position for years. [00:50:40] Speaker 00: What I cited to you, stating that position for the first time, was a general preamble written 23 years ago. [00:50:45] Speaker 00: And that position hasn't changed. [00:50:47] Speaker 02: But I forgive my density, but I'm still not understanding why there's not a practical consequence. [00:50:51] Speaker 02: Because at that point, even if that's been your interpretation forever, [00:50:56] Speaker 02: If at that point, there's a difference between four years and 18 months. [00:50:58] Speaker 00: Let me be clear. [00:51:00] Speaker 00: Yes, there's a practical consequence about which weather EPA invokes B1 or B2. [00:51:05] Speaker 00: Yes. [00:51:06] Speaker 00: My point, though, is that vacating this rule is not going to address that consequence either way. [00:51:11] Speaker 00: Because vacating this rule doesn't change the premise on which EPA is relying and interpreting the statute. [00:51:16] Speaker 00: What would change it is if EPA makes that decision and then someone challenges it in court, challenges the merits of that reclassification, maybe they prevail. [00:51:24] Speaker 00: Maybe they don't. [00:51:25] Speaker 00: A court may agree or not with the EPA's view. [00:51:27] Speaker 00: But that's the point where that consequence would be addressed. [00:51:30] Speaker 00: And that is where there would be a tangible benefit to pursuing the merits of such litigation. [00:51:37] Speaker 00: If Your Honor have nothing further, I will just conclude. [00:51:40] Speaker 00: For all the reasons we've stated in our briefs and an argument, we believe the rule should be dismissed for lack of standing or as moot without vacating it. [00:51:48] Speaker 00: Or alternatively, the court should uphold the rule on the merits. [00:51:51] Speaker 00: Thank you. [00:51:51] Speaker 00: Thanks. [00:52:05] Speaker 02: We'll give you 30 minutes. [00:52:08] Speaker 03: I just want to touch on this one point about EPA's claim that they can reclassify at any time. [00:52:15] Speaker 03: I was trying to look quickly through the recent South Coast proposal, and I didn't have a chance to look at the San Joaquin proposal either, but I don't think either of those proposals [00:52:29] Speaker 03: predicate that voluntary reclassification on this general authority or this old interpretation that they're referring to, they predicated on the fact that the classification rule reset the moderate area plan deadlines and that this request was within the 18 months of that new moderate area plan deadline. [00:52:54] Speaker 02: We'll look at those materials and decide what they in fact relied on, but if you accept the argument that the authority to do that until the attainment deadline has always been... That interpretation has always been there. [00:53:09] Speaker 03: Then there's still this practical difference that should petitioners disagree [00:53:15] Speaker 03: In the, with the vacatur, they're in the posture of saying, the statute says you can make these determinations within 18 months, this is beyond 18 months, what's your legal argument? [00:53:28] Speaker 03: Versus, with the classification rule, they can say, it says we can make this determination within 18 months, we're within 18 months. [00:53:38] Speaker 03: One is a fairly straightforward statutory argument that they are making, that they have made in these proposals, that the statute says 18 months from the moderate area plan due date. [00:53:52] Speaker 03: The moderate area plan due date has been reset. [00:53:55] Speaker 03: Therefore, we're within that time frame we can voluntarily reclassify. [00:54:00] Speaker 03: under this broader claim of authority, they can't make that straightforward statutory argument. [00:54:07] Speaker 03: They have to say, notwithstanding the fact the statute gives us 18 months to make this reclassification, we think we have broader authority to do it for six years. [00:54:21] Speaker 03: And, you know, and maybe that maybe that fight is still to come. [00:54:26] Speaker 03: I mean, clearly, that's their point, though, that that that fight would be another one. [00:54:30] Speaker 03: But that is a different fight. [00:54:31] Speaker 03: That is a different legal fight. [00:54:34] Speaker 03: Right. [00:54:34] Speaker 03: With or without the classification rule with the classification difference than at that point. [00:54:40] Speaker 02: We're not talking about deadlines for submissions and things like that. [00:54:43] Speaker 02: What we're talking about is the nature of the legal arguments that would be made. [00:54:45] Speaker 03: Well, what's become apparent is that we can't get any deadline complied with without litigation. [00:54:54] Speaker 03: So the whole context of this thing is, what is that next piece of litigation? [00:54:59] Speaker 03: What is the deadline that we are going to have to try to enforce? [00:55:03] Speaker 03: And so unfortunately, I think everything is is wrapped up in the context of you know, what is the statute say? [00:55:10] Speaker 03: What are the statutory arguments? [00:55:11] Speaker 03: What are the deadlines and you know, what are the legal positions that petitioners will be forced to take? [00:55:17] Speaker 03: Thank you. [00:55:18] Speaker 03: Thank you cases submitted