[00:00:03] Speaker 00: Case number 14 as 5305, Mingle-Logan Co-Company Appellant vs. Environmental Protection Agency. [00:00:10] Speaker 00: Mr. Clement for the appellant, Mr. Lilleton for the appellate. [00:00:53] Speaker 01: Good morning. [00:00:54] Speaker 01: Morning, Your Honors, and may it please the Court. [00:00:56] Speaker 01: In the first appeal in this case, this Court held that the EPA has the rather extraordinary power to exercise its 404C veto over a core permit even after the permit has issued. [00:01:09] Speaker 01: This appeal concerns the distinct question of whether the EPA's exercise of that extraordinary post-permit authority is subject to any additional constraints relative to EPA's exercise of that same authority pre-permit. [00:01:24] Speaker 01: The EPA takes the remarkable position that its ability to withdraw a specification post-permit, even when it will eliminate 88% of the disposal sites specified in the permit, is just as unbounded as its authority to act when there is no permit, no reliance interests, no prior 404B analysis by the Corps, and no earlier decision by the EPA, whether implicit or explicit, not to employ its statutory veto. [00:01:53] Speaker 01: We find that position astonishing, but more to the point, it's deeply flawed as a matter of administrative law. [00:02:00] Speaker 01: By failing to account for the reality that the permit in fact issued, in no small part because EPA declined to exercise its 404C veto, EPA failed to address important aspects of this problem. [00:02:14] Speaker 01: And the reality is that when the court looks at the decision whether to exercise its 404C authority, and it considers exercising that authority after the permit is already issued, there are just a number of factors that become relevant in that post-permit context that obviously wouldn't have been relevant in the pre-permit context. [00:02:35] Speaker 01: And to take the position, as EPA does, that no, it's the same analysis. [00:02:39] Speaker 01: We don't have to take that stuff into account. [00:02:42] Speaker 01: is a classic arbitrary and capricious mistake, because it fails to account for an important aspect of the problem. [00:02:49] Speaker 01: And just to pick what seems to me to be the most obvious factor, just as one, is ours are going to know something in the post-permitting process that you don't know in the pre-permitting process, which is whether the permittee has complied with the various specifications of the permit, which may be critical to mitigation efforts. [00:03:08] Speaker 01: Now, I'm not focusing on that because I think it's the most important one. [00:03:11] Speaker 01: I'm just focusing on it because those factors just don't exist in the pre-permit context. [00:03:16] Speaker 01: And of course, you'd want to take those into account. [00:03:19] Speaker 01: They might not outweigh the other factors. [00:03:22] Speaker 01: And again, the other factors, it seems to me, would also be profoundly different in the post-permit context. [00:03:28] Speaker 05: I mean, I do think that- The statute speaks in terms of unacceptable adverse effect in talking about the civil veto authority. [00:03:37] Speaker 05: Yes. [00:03:37] Speaker 05: The statutory terms don't themselves draw a distinction between pre-permitting and post-permitting. [00:03:43] Speaker 01: Well, not expressly. [00:03:45] Speaker 01: Right. [00:03:46] Speaker 01: And I think it's fair to say that the statute doesn't expressly address the post-permit context. [00:03:55] Speaker 01: Which is why the first time up here, we were arguing strenuously and in my heart of hearts, I still think correctly. [00:04:07] Speaker 01: So far. [00:04:10] Speaker 01: That authority doesn't exist at all. [00:04:13] Speaker 01: But the point here is that the term unacceptable is clearly capacious enough to take into account the difference between the two circumstances. [00:04:26] Speaker 01: And so the question is now no longer a statutory question. [00:04:29] Speaker 01: It is an arbitrary and capricious question. [00:04:32] Speaker 01: And I do think it is classically arbitrary and capricious [00:04:35] Speaker 01: to basically say, no, you know, whatever means whenever and sort of means whatever. [00:04:41] Speaker 01: So we're just going to proceed just as if this permit has an issue that there's not reliance interest, that there's not a compliance history, and there's no obligation as the district court clearly held [00:04:52] Speaker 01: to even sort of differentiate between substantial new information and pre-existing information. [00:04:59] Speaker 01: So how should it be different? [00:05:01] Speaker 03: So it should be different, but how exactly? [00:05:05] Speaker 03: So I think what you're asking for ultimately is a remand to EPA for them to do a balancing of all the different factors. [00:05:12] Speaker 03: How do you envision that going? [00:05:15] Speaker 03: What do you want them to do? [00:05:18] Speaker 01: What do you want them to do? [00:05:21] Speaker 01: I think a great starting point would be the factors that the Corps looks to in deciding whether to revoke a permit. [00:05:29] Speaker 01: And I say that not because I think that those provisions directly apply to EPA. [00:05:34] Speaker 01: I get the fact that they don't. [00:05:36] Speaker 01: But I do think they are actually a great indicator of what the government itself [00:05:42] Speaker 01: when it was thinking about this as a global matter, not in the context of a specific permit, would take into account in deciding whether to change courts. [00:05:52] Speaker 01: And so you look to, is there a change in it? [00:05:54] Speaker 01: And I should parenthetically add, and they don't look that different from what you'd expect courts to take into account, for example, in a 60B context or any context when you're reconsidering a decision. [00:06:05] Speaker 01: So you look to, is there a substantial change in the law? [00:06:08] Speaker 01: Is there a substantial change in the facts, substantial new information? [00:06:12] Speaker 01: Are there reliance interests here that are uniquely taken into account? [00:06:16] Speaker 01: And what is the permit compliance record of the permit date? [00:06:21] Speaker 05: Can I ask you about it? [00:06:22] Speaker 05: So the briefing, in the briefing you focus a lot on reliance interest. [00:06:26] Speaker 05: You lead with reliance interest and you focus on that to a great extent. [00:06:31] Speaker 05: So where did the company tell the EPA as part of the EPA process about reliance interest and investment-backed expenditures? [00:06:41] Speaker 01: It did it, I mean, you know, we really sort of try to catalog, you know, a variety of places that we did that in our reply brief. [00:06:48] Speaker 05: Right, and I looked at those. [00:06:49] Speaker 05: Right. [00:06:49] Speaker 05: And in terms of what was put before the EPA, I saw one sentence in one response to, I think it was the recommended, maybe it was the proposed determination. [00:07:00] Speaker 05: It was on JA 708. [00:07:03] Speaker 05: And it was a sentence in the introduction to that document which just said, [00:07:10] Speaker 05: trying to look to see if you may remember exactly what it says. [00:07:13] Speaker 05: Now more than three years after the issuance of the permit, as Mingo Logan is actively mining the sites in an attempt to recoup its decade-long investment, EPA has declared that the impacts have proved are now unacceptable. [00:07:25] Speaker 05: So that is a sentence in the introduction to this document, and we could talk about exactly what it says. [00:07:31] Speaker 05: But are you aware of any other sentence or clause or any documentation of what the [00:07:38] Speaker 05: how the reliance interest congealed in terms of investment-backed expenditures? [00:07:45] Speaker 01: Well, I guess what I would say is a couple of things, Your Honor. [00:07:47] Speaker 01: First of all, you've got to take this in the context that before the EPA and before the district court in the first instance, my client is making both the statutory argument and the arbitrary and capricious argument. [00:07:57] Speaker 01: And I don't think there's any doubt in the context of making the statutory argument that the reliance interests are front and center. [00:08:04] Speaker 05: Before the EPA? [00:08:05] Speaker 05: Yeah. [00:08:07] Speaker 05: What did the company put before the EPA in terms of reliance interest? [00:08:11] Speaker 01: In terms of detailing them or in terms of invoking them? [00:08:13] Speaker 01: Either. [00:08:14] Speaker 01: Other than this sentence. [00:08:15] Speaker 01: Well, I'm not in a position at the podium. [00:08:18] Speaker 01: I'll try to get you more. [00:08:19] Speaker 01: But I'm not suggesting that there's a ton of stuff we left out of the reply brief on this. [00:08:24] Speaker 05: Right, and in the reply brief, in terms of what was put before, I guess this is why I focused on what was put before the EPA, because we have these decisions, as you know, that say that if you don't put something before the agency, then we're not in a position to give credit to that argument because the agency had to have a chance to deal with it. [00:08:39] Speaker 05: And as far as I could tell from the reply brief, in terms of what was put before this agency, the EPA, the only thing I saw was this sentence. [00:08:46] Speaker 01: I'll try to give you some more citations in my rebuttal if I can, but I also, with all due respect, don't think you're looking at it exactly the way I would suggest that you look at this, because the one thing that's clear, the reliance is just part of the broader set of arguments about why there has to be a different analysis [00:09:07] Speaker 01: I think it's an important aspect of it, but I don't think it is the sum total. [00:09:15] Speaker 01: As I said, it's not even the most obvious. [00:09:18] Speaker 03: Reliance is the reason. [00:09:20] Speaker 03: that you want heightened justification from EPA, right? [00:09:24] Speaker 03: In other words, post-permit's different from pre-permit. [00:09:27] Speaker 03: And the reason it's different is because, obviously, you spend money once you get the permit in reliance on the permit. [00:09:33] Speaker 03: And it's a change. [00:09:34] Speaker 03: And so you want to heighten justification. [00:09:37] Speaker 02: Exactly. [00:09:38] Speaker 03: That's what I was thinking. [00:09:39] Speaker 03: But then the question is, OK, here's my next question, which is, when EPA does what they're going to do as you envision it, [00:09:49] Speaker 03: Do they need to, why aren't they limited to just environmental considerations? [00:09:53] Speaker 03: In other words, they might have to find new information on the, as you say, because they have a heightened justification because it's reliance. [00:10:00] Speaker 03: But do they have to look beyond environmental considerations? [00:10:05] Speaker 03: Absolutely, Your Honor. [00:10:06] Speaker 03: And that comes from an unacceptable. [00:10:07] Speaker 01: Yes. [00:10:08] Speaker 01: And common sense. [00:10:10] Speaker 01: And Michigan. [00:10:12] Speaker 01: And I mean, you know, all of those factors together. [00:10:15] Speaker 01: And, you know, I guess I want to make two points before I leave Judge Srinivasan's sort of concern about preservation. [00:10:20] Speaker 01: I mean, I think if you look at the EPA's own brief at page 48, what they say is they concede that Mingo Logan [00:10:27] Speaker 01: argue, quote, argued to EPA and the district court and argues again on appeal that the agency must supply a more robust justification for a post permit action. [00:10:38] Speaker 01: Now, I think it's the grabbing of the claim. [00:10:40] Speaker 01: I think of like reliance and compliance history, those being sort of separate arguments that support the basic claim and sort of the city of Escondido against ye kind of sense. [00:10:49] Speaker 01: So I really think that's enough to have preserved this claim. [00:10:53] Speaker 01: And again, [00:10:54] Speaker 01: I don't think this is a case where the agency's in a position to say, well, if only you've made more of that, we would have done something different. [00:11:04] Speaker 05: So you've got things broader than reliance interest, which you want to get to, and I don't want to stop you from doing that. [00:11:09] Speaker 05: But reliance interest is what you fronted. [00:11:12] Speaker 05: And on the question of reliance interest, it seems to me that it's not just enough to say, reliance interest, it's obvious there's reliance. [00:11:20] Speaker 05: The point is, and I think this happened in Michigan, those things were quantified because in order to, you can have situations in which there are no reliance expenditures because if the veto happens the day that the permit's issued. [00:11:30] Speaker 05: It's a fact that there's nothing, right? [00:11:32] Speaker 05: So it seems to me that it's incumbent upon the company to point out to the agency, here's the ways in which we've relied. [00:11:38] Speaker 05: Here's an affidavit or some record evidence on the expenditures that we've made. [00:11:41] Speaker 05: And then the agency is flagged for the agency that they need to take that into account in the analysis. [00:11:46] Speaker 05: Otherwise, what's the agency supposed to do? [00:11:47] Speaker 05: They can't divine that. [00:11:49] Speaker 01: But here's the thing, Judge. [00:11:50] Speaker 01: Your Honor, obviously when we got to the district court and we had somebody that was at least potentially willing to take this into account, we put in the affidavit. [00:11:58] Speaker 01: before the agency, it was clear then, and it is crystal clear now, that they're not taking a new account. [00:12:04] Speaker 01: This is, as I was about to say, this is not a situation where EPA can really come up here and say, gosh, if only you had put in another affidavit and quantified that, we would have run the numbers and we would have, you know, we would have balanced this against that. [00:12:15] Speaker 01: Their position is they don't have to at all. [00:12:18] Speaker 01: And so it seems to me that in that context... I don't think that's ever been our rule that [00:12:23] Speaker 05: If the agency says it's not going to take something into account, then the company or the entity is absolved from any responsibility to still put it before the agency in order to preserve it. [00:12:35] Speaker 05: In Michigan, there were things that were submitted about that, and I don't think there was any dispute that the agency wasn't going to take it into account. [00:12:42] Speaker 01: I mean, I don't know that I necessarily agree with you, Your Honor. [00:12:45] Speaker 01: I mean, I don't think that when the agency is clear that it's not going to take something into account, that you have to proffer it in some sort of preservation way. [00:12:53] Speaker 01: I don't know that the case will support that. [00:12:54] Speaker 01: But I also think it's critical that the broader issue about whether you have to take into these a variety of factors. [00:13:02] Speaker 01: Any new factors. [00:13:03] Speaker 01: Yeah, because it's now a different day, because this is no longer an initial decision to exercise the 4043 [00:13:10] Speaker 01: But it's now a post-permit exercise of that authority. [00:13:13] Speaker 01: The broader argument that you have to deal with that differently because it's a new day, new considerations, that clearly was preserved. [00:13:21] Speaker 01: Now, I do think unacceptable is a broad enough term to take that into account. [00:13:27] Speaker 01: So this is not a situation. [00:13:28] Speaker 01: where you have a statutory term like it had in Whitman that made it clear that this is just, you know, this is just a one-way ratchet. [00:13:35] Speaker 01: All you're supposed to consider is this. [00:13:37] Speaker 01: I also think... It presents a severe adverse effect and might be different. [00:13:42] Speaker 01: Well, I think you'd still have to look contextually about whether EPA is really only supposed to sort of like, I mean, you can have a context, and this may or may not have been Whitman, but you'd certainly imagine a situation where EPA is really supposed to do something that's more aspirational. [00:13:58] Speaker 01: So they're really just supposed to see what would be ideal for the environment, never mind anything else. [00:14:03] Speaker 01: But here, especially with the term unacceptable, and then with the context of the permitting process, [00:14:09] Speaker 01: It does seem that clearly they can take into account cost considerations. [00:14:13] Speaker 01: They can take into account the feasibility of mitigation. [00:14:16] Speaker 01: They can take into account a variety of factors. [00:14:19] Speaker 03: So what comes in under costs when it goes back to EPA? [00:14:23] Speaker 03: It's obviously the cost that [00:14:25] Speaker 03: your client expended. [00:14:26] Speaker 03: But is it broader than that? [00:14:27] Speaker 03: Is it lost jobs? [00:14:30] Speaker 03: Is it loss of supply for cheaper electricity? [00:14:34] Speaker 03: Is that supposed to be part of the analysis, too? [00:14:37] Speaker 01: I think all of that can be part of the analysis. [00:14:39] Speaker 01: And again, I think that [00:14:41] Speaker 01: Obviously, I think if you sent this back to the agency and you had a remand, the reliance interest would be, I think, front and center. [00:14:50] Speaker 01: I think some of these other costs might be part of the calculus, but to the extent the agency has a justification for discounting those costs or emphasizing other factors, if they do the analysis, [00:15:01] Speaker 01: that you would expect them to do to take into account the reality that this is a substantially different context because of the permit. [00:15:08] Speaker 01: At that point, they're going to get deference in judicial review of the analysis they do. [00:15:14] Speaker 01: I think the problem here is they just, you know, and not unintentionally, [00:15:19] Speaker 01: They've taken the position that we just don't need to look at that. [00:15:22] Speaker 01: It's really just the same analysis. [00:15:23] Speaker 01: And there's one other contextual point there, is that if you think about the way the 404C process works, the pre-permit, although I won't take issue with the idea that the EPA gets to exercise a veto. [00:15:39] Speaker 01: It's still in the context of an inner agency process where the core's got the lead role. [00:15:46] Speaker 01: If there's a dispute about the environmental materials between the core and the EPA, they're supposed to take it up with CEQ. [00:15:52] Speaker 01: So there's a variety of things that sort of practically constrain the EPA. [00:15:58] Speaker 01: And I do think if they're going to assert this authority to exercise the 404C authority after the fact, [00:16:05] Speaker 01: I mean, the analysis has to take into account sort of some of the same things that would be almost like a proxy for what those other people would be injecting into the interagency process. [00:16:17] Speaker 01: And I don't mean that in, like, some super rigorous way. [00:16:19] Speaker 01: I just think it's part and parcel of this idea that you're just in a vastly different world. [00:16:25] Speaker 05: Now, even post-permanent, I think, that statute still requires consultation with the core, I think, right? [00:16:30] Speaker 01: I think that's right. [00:16:32] Speaker 01: But just to be concrete, and again, this isn't something we've focused like a laser beam on the briefs. [00:16:36] Speaker 01: It's just an illustration of the basic point. [00:16:39] Speaker 01: But at the very end of this 99-page opinion by the EPA, they start talking about the 404b analysis that the Corps is supposed to do and the mitigation measures. [00:16:50] Speaker 01: And I would have expected an agency in that context would start off the analysis by saying that, boy, the Corps looked at these exact same 404B factors before it issued this permit, and here's what they found, or here's what their thinking was, and here's why we come to a different conclusion three years later, five years later, whatever it is. [00:17:11] Speaker 01: And that's not the analysis. [00:17:14] Speaker 01: The analysis is, here's 404B, here's our, you know, take these into account, here's our best factor. [00:17:19] Speaker 01: We've obviously been talking a lot about the argument that I think is the most important, but I do want to just briefly mention that almost the same thing happened [00:17:29] Speaker 01: when it came to the downstream water effects, because I would think in a case like this, where you have a state that has delegated authority under 402, and the state has not just issued a 401 permit at the beginning of the process to say, this is going to be consistent with clean water attainment in our state, but then specifically at the discharge from the sediment pond point. [00:17:55] Speaker 01: where you need a 402 permit, where Core Alaska says you need that. [00:17:59] Speaker 01: At that point, the state has granted the permit. [00:18:03] Speaker 01: Now, again, we're not going to take the position that that stops EPA from exercising its 404C authority, even based on downstream effects. [00:18:12] Speaker 01: Geez, you'd expect the analysis to start with... Cognizantism. [00:18:16] Speaker 01: Absolutely. [00:18:17] Speaker 01: And, you know, it would really, more than just cognizant, it's like it ought to be the beginning focal point at which there's a justification for why we're coming out differently. [00:18:26] Speaker 01: And if you look at the downstream water effects part of this opinion, it's 24 pages long. [00:18:32] Speaker 01: I tried to read it this morning. [00:18:34] Speaker 01: There's no reference [00:18:37] Speaker 01: to, I mean, you know, the only reference to the sort of state water standards at all is at Joint Appendix 842, where the EPA averts to the fact that EPA's conclusion of adverse effect on wildlife is not dependent on a conclusion that West Virginia's water quality standards will be violated at downstream of the site. [00:18:59] Speaker 01: So the only time they really avert to even West Virginia's water quality standards is to reaffirm that they're not actually relevant to or outcome-determinative to their decision. [00:19:11] Speaker 01: And then they really don't make any reference to the fact that applying those standards to the specific discharge point when this process has got to the sediment ponds and then discharged downstream, that West Virginia has given it a thumbs up. [00:19:25] Speaker 01: Again, the point is not that West Virginia gets the final say. [00:19:28] Speaker 01: It's just that, wow, you'd expect that to be, so there's two things that are missing here. [00:19:33] Speaker 01: You'd expect that the starting point for the exercise of the veto would be the reality that the Corps already gave a green light to this project. [00:19:40] Speaker 01: And then as to downstream effects, you would expect the starting point would be the fact that West Virginia gave a 402 permit. [00:19:47] Speaker 01: And if I could say one word about the 5C analysis of the opinion, which is to say the effect on the fill site, there it's where I think the failure to rigorously look at substantial new evidence [00:20:02] Speaker 01: versus just evidence really is kind of powerful because the only thing that the EPA really points to at the fill site that is based on a post-permit study is one study about salamanders that says that when you fill a headstream, the salamanders don't come back. [00:20:23] Speaker 01: Now, I might have thought that was obvious, but in all events, it's not clear to me that that's the kind of substantial new evidence that ought to justify this post-permanent exercise. [00:20:33] Speaker 01: If they come back and they have a study that says, wow, there were like six different types of salamanders there, and we didn't even think about those there, [00:20:40] Speaker 01: or if they make a finding that this Louisiana water thrush actually goes to the site for the first time, that might be the kind of substantial new evidence that gets you to a different place. [00:20:49] Speaker 03: So one way to look at this, and this is getting ahead, but is given the costs, the reliance interests that are inherent in a post-permanent revocation, the EPA is going to have to show [00:21:00] Speaker 03: greater environmental benefits. [00:21:02] Speaker 03: And your point is they have to be benefits that were not known at the time of the original decision. [00:21:08] Speaker 03: And they have to be high level of environmental benefits as well. [00:21:14] Speaker 03: And my question is, can they also say, however, [00:21:18] Speaker 03: And in doing this, we have a different view of the previously known evidence than did our predecessor agency. [00:21:26] Speaker 03: Or is that not an appropriate part of the analysis? [00:21:31] Speaker 01: Well, I guess what I would say is I would take the position that that's not an appropriate part of the calculus. [00:21:38] Speaker 01: My friends at the EPA might take a different view of that. [00:21:42] Speaker 01: You know, maybe that's the third time this case comes before this court. [00:21:45] Speaker 01: But I do think that that's a bit inconsistent at that point with the whole nature of a permit. [00:21:56] Speaker 01: And that's what I do think. [00:21:57] Speaker 01: I think if this court emphasizes the need to consider the fact of the permit as being a game changer, I don't think you're opening up some new vista in administrative law. [00:22:08] Speaker 01: permits, especially a permit like this. [00:22:10] Speaker 01: I mean, they are different. [00:22:11] Speaker 03: It's not just the agency saying that's what you're really saying, I think, is that you need new information and has to be game changing new information on the environmental side, given that they're going to be a lot of costs almost inevitably on the other side of the ledger. [00:22:28] Speaker 01: Well, I wouldn't go quite that far, because again, you're going to have a variety of different circumstances. [00:22:33] Speaker 01: I do think the compliance history, for example, is something that could easily be factored into account in some cases, not this one. [00:22:42] Speaker 01: But you could imagine a situation, for example, where the permit is granted with a lot of specifications, not about disposal sites, but a lot of provisions in the permit, conditions on the permit, that are all designed to enforce a mitigation program. [00:22:56] Speaker 01: that was the critical thing that got EPA comfortable with not vetoing the permit in the first place. [00:23:02] Speaker 01: And then you have a permittee that just blows all of those limitations. [00:23:07] Speaker 01: I mean, that's going to be an easy situation where even exercising the authority plus permit and taking factors into account [00:23:14] Speaker 01: you're going to be able to that agency is very permissible going to be come out in a different place. [00:23:19] Speaker 03: That would be new information not known at the time the permit was granted and significant new information. [00:23:24] Speaker 03: Sure. [00:23:24] Speaker 05: You can certainly have a situation in which the EPA in the course of the pre-permitting process makes known its objections or at least concerns. [00:23:33] Speaker 05: I won't call it objections because it can always veto before the fact too. [00:23:36] Speaker 05: It makes known its objections, it makes known its concerns, and then just doesn't have the information yet to reach a final resolution of those concerns. [00:23:45] Speaker 05: But then the court goes ahead and issues the permit. [00:23:48] Speaker 05: And then after the fact, the EPA can look and say, well, now we've had more of an opportunity to explore this. [00:23:54] Speaker 05: We have more information. [00:23:56] Speaker 05: And we realize that these concerns actually are realized. [00:23:59] Speaker 01: I mean, if it were no more than sort of, you know, EPA had these concerns all along, but they just kind of couldn't get the paperwork together. [00:24:11] Speaker 05: I mean, that's the analyses just weren't done. [00:24:13] Speaker 01: Well, I mean, that's the case. [00:24:14] Speaker 01: I mean, that's the case. [00:24:14] Speaker 01: Here's a good example, right? [00:24:17] Speaker 01: Because this was like a 10-year permitting process. [00:24:20] Speaker 01: You had an environmental impact statement that was put together. [00:24:23] Speaker 01: There was lots and lots of analysis done. [00:24:26] Speaker 01: The EPA had some concerns at various junctures. [00:24:29] Speaker 01: At various junctures, my client took steps to address those concerns. [00:24:34] Speaker 01: And there was some lingering concern. [00:24:36] Speaker 01: I really think that the far better answer for the whole system [00:24:41] Speaker 01: would be let's hold off granting the permit, because the permit is, I think, and continue to think, is a big deal. [00:24:47] Speaker 01: It is a watershed event. [00:24:51] Speaker 01: And it should therefore have a significant impact on how the EPA exercises its authority post-permit. [00:24:59] Speaker 01: And I guess my clients would rather live in a world where it's all recognized that the permit is a very big deal, that the EPA has this residual authority, but it's limited because it has to take into account these factors such that the incentive for the EPA [00:25:14] Speaker 01: is if you have these concerns and they're lingering, boy, do the paperwork or take it up with CEQ if you, you know, because there's two dynamics, right? [00:25:23] Speaker 01: And I mean, the political dynamics are a little bit different. [00:25:26] Speaker 01: You know, the Corps has its own veto authority, but I would imagine to actually use that is sort of costly in a lot of different senses, internally, externally, to use that authority. [00:25:38] Speaker 01: It also has the authority in more of a cooperative interagency way to take issue with the way the Corps is doing the 404B analysis, and particularly if you're sort of in the area where some of these concerns are there and there's a back and forth. [00:25:53] Speaker 01: My clients, I think, would much rather live in a world where permits take an extra six months or an extra 12 months and all of that gets worked out. [00:26:03] Speaker 01: than to live in a world where permits issue, but they're kind of not worth the paper they're printed on. [00:26:09] Speaker 05: But at least everybody would know. [00:26:10] Speaker 05: I mean, I'm hypothesizing a situation in which everybody's on notice because of the nature of the correspondence and because that's all laid bare, where the Corps goes ahead and issues the permit, but the EPA has flagged, we've got some concerns. [00:26:22] Speaker 05: They're not completely resolved. [00:26:24] Speaker 05: We're not going to exercise the power to stop the permit in its tracks right now. [00:26:27] Speaker 05: But proceed at your own peril. [00:26:29] Speaker 05: You know the lay of the land. [00:26:31] Speaker 01: And I'm just saying I'd rather not live in that world. [00:26:34] Speaker 01: And maybe administrative law doctrines don't give me the choice. [00:26:39] Speaker 01: But I do want to say I think there is play in the joints here in terms of interpreting this regime. [00:26:43] Speaker 01: I do think that, like I said, the whole notion that the 404C authority exists we no longer take issue with. [00:26:51] Speaker 01: But when it's being exercised in the post-permit context, I'd much rather live in a world, even prospectively, [00:26:59] Speaker 01: that says that authority is, it exists, but it's going to be fly-spect a little differently than when it's used in the pre-permit context. [00:27:08] Speaker 01: And if that makes EPA fight a little bit harder in the pre-permit process, we'd rather live in that world because the whole idea, again, of a permit is it's not just the agency's position. [00:27:20] Speaker 01: It really is a green light. [00:27:22] Speaker 01: And to go from a green light, an affirmative green light, to an absolute red light, we think should take substantially greater justification. [00:27:31] Speaker 01: And again, I'm repeating myself, but I think that's a much better world, prospectively, certainly for the regulated community. [00:27:38] Speaker 01: I'm not so sure it's not a better world for EPA, but they'll tell you differently. [00:27:42] Speaker 01: Thank you. [00:27:42] Speaker 01: Thank you. [00:27:55] Speaker 04: Good morning. [00:27:56] Speaker 04: Good morning, Your Honor. [00:27:57] Speaker 04: I'm Matt Littleton, representing the EPA. [00:27:59] Speaker 04: May it please the Court. [00:28:00] Speaker 04: I'd like to start with what is the most straightforward way for this Court to affirm the judgment of the District Court, and that is to hold that as a matter of statutory construction, EPA may consider downstream effects of discharge of fill material on wildlife. [00:28:15] Speaker 04: And that is quite clear from the structure of the Clean Water Act. [00:28:20] Speaker 04: The court can consider those effects. [00:28:22] Speaker 04: EPA can consider them, whether it's pre-permit or post-permit. [00:28:26] Speaker 04: And this morning, Mego Logan seems to be giving up the statutory argument and making more of a sort of arbitrary and capricious-based argument that EPA needs to specifically address and indicate where there are departures from specific state water quality standards. [00:28:43] Speaker 04: The problem is that that I didn't hear. [00:28:45] Speaker 04: I didn't hear him give anything off, but you can keep going. [00:28:47] Speaker 04: Well, so let me let me get back to the statutory argument. [00:28:50] Speaker 04: I think it's quite clear that under section 404, the Corps cannot issue a permit unless the state certifies under Section 401 of the Clean Water Act. [00:28:59] Speaker 04: that there's been compliance with state water quality standards, but the Corps has the ability to reassess water quality itself, and EPA has the ability, obviously under Section 404C, to make the determination that notwithstanding that certification, there's an unacceptable [00:29:16] Speaker 04: adverse effect on wildlife and therefore make its own determination independent of the floor set by state water quality standards. [00:29:24] Speaker 04: So there hasn't been interference with state water quality standards in any respect. [00:29:28] Speaker 04: The Clean Water Act has distinct authorities for states and for the federal government, both the Corps and the EPA. [00:29:35] Speaker 04: And all the EPA is doing here is exercising the authority that was expressly given to it by Congress. [00:29:40] Speaker 03: But there's a larger point, as you know, is that [00:29:42] Speaker 03: whatever the environmental benefits are, they have to be weighed against the costs, including the costs that were invested in reliance on the permit. [00:29:52] Speaker 04: So first of all, I want to make clear that's a separate argument, and that's the argument they lead with, although it's an argument that they plainly did not preserve either before the EPA or before the district court. [00:30:02] Speaker 03: They clearly said before the district court that because it's a change, revocation of a permit, you need a heightened justification citing State Farm. [00:30:14] Speaker 04: So what I point the court to, the clearest place where this absence of preservation comes out, is in Mingo Logan's brief on remand back from this court. [00:30:23] Speaker 04: Yeah, what page? [00:30:25] Speaker 04: That's what I'm looking at. [00:30:26] Speaker 04: It's the, I think, [00:30:27] Speaker 04: I guess I would point to the entire document. [00:30:29] Speaker 03: On page 14 specifically says a change in course requires reasoned decision-making, citing State Farm and cases of this court, reaching one conclusion before permanent issues and then reaching the opposite conclusion. [00:30:45] Speaker 03: on the same information as the very definition of arbitrary and capricious. [00:30:48] Speaker 03: That's the classic state farm argument of, also elaborated in Fox, of when you make a decision, people rely on it, and then you change course. [00:30:59] Speaker 03: You have to explain that change. [00:31:02] Speaker 04: Well, I would respectfully say that that's a different argument that Mingo Logan raises, and we don't contest that. [00:31:08] Speaker 04: point has been weighed. [00:31:09] Speaker 04: But the question whether EPA had to consider these specific factors, such as compliance history, that was clearly not preserved. [00:31:17] Speaker 04: And I think under the Supreme Court's decision in Vermont, Yankee, it's quite clear that you can't just make a generalized arbitrary and capricious claim and have that preserve an issue either before the agency or the district court. [00:31:28] Speaker 03: But I think that the starting point is, because it's a post-permanent revocation, [00:31:35] Speaker 03: there are reliance interests inherently in that situation, and it's a change in course under FOX. [00:31:41] Speaker 03: And you need, as FOX says, a more detailed justification then for the decision in the first instance. [00:31:49] Speaker 03: Well, what I would say on that are two points on that. [00:31:52] Speaker 03: Then we'll go to what the more detailed justification needs to be, but I want to nail down step one. [00:31:57] Speaker 03: So two points on that. [00:31:58] Speaker 04: First of all, Your Honor said it was inherent. [00:32:00] Speaker 04: And I think the record in this case makes clear that with respect to the specific disposal sites withdrawn, which were not all of the disposal sites in the permit, what was indicated from the record, and this is at JA 866 and EPA's final determination, is that the reliance interests, to the extent they existed, the one said it's in the introductory [00:32:21] Speaker 04: in the introduction to 250 pages of comments from Mango Logan. [00:32:25] Speaker 04: To the extent those interests existed, they were permit-wide, and what EPA was doing here was not withdrawing all the specifications in the permit. [00:32:33] Speaker 04: It was only withdrawing specifications for sites that had not been discharged into since the permit issue. [00:32:40] Speaker 05: Well, I thought it was more than that because at the time that the [00:32:43] Speaker 05: How soon after the permit issued, did the other district court litigation start? [00:32:49] Speaker 04: It was within a week. [00:32:51] Speaker 05: And then in that litigation, at what point was there an agreement that said that we're not going to go forward except that the Spanx on the same... I believe it was three days after the complaint was amended. [00:33:02] Speaker 04: So virtually, immediately after, and this is... That doesn't mean that there couldn't have been. [00:33:07] Speaker 04: It does not. [00:33:08] Speaker 04: But there needs to be evidence of that, and there is no evidence of that in this record. [00:33:11] Speaker 04: All we have is one sentence, again, in the introductory comments that Mingo Logan made. [00:33:16] Speaker 05: And with respect to the... So in response to that, what about the point that was raised by your colleague on the other side that [00:33:22] Speaker 05: your own approach takes all that out of the field of vision. [00:33:27] Speaker 05: So it wouldn't have done the company any good to itemize investment-backed expenditures because it was already clear that you were going to take those into account. [00:33:38] Speaker 04: Well, I guess I would say two things on that. [00:33:40] Speaker 04: First of all, this court can only reverse an agency decision based on the record before the agency. [00:33:47] Speaker 04: So if it turns out that EPA might have taken these things into account had they been introduced, the court couldn't remand on that basis. [00:33:53] Speaker 04: EPA has to deal with the record that's before it. [00:33:55] Speaker 04: But second, I think your [00:33:58] Speaker 04: you're getting to the question, I suppose the way I would put it is this. [00:34:02] Speaker 04: There's sort of two questions. [00:34:04] Speaker 04: One is, what are the considerations that are valid to take into account in determining whether there's an unacceptable adverse effect on wildlife? [00:34:12] Speaker 04: And here are the two polls for the court to look at are Michigan on the one hand and Whitman on the other. [00:34:17] Speaker 04: Mingo Logan says this is like Michigan, where there's a broad, capacious grant of authority to regulate wherever appropriate and necessary. [00:34:26] Speaker 04: Then on Whitman, you have the agency must regulate within an adequate margin of safety. [00:34:32] Speaker 04: And despite the presence of the word adequate, which here I would argue is akin to acceptable or unacceptable, the court in Whitman unanimously said that does not encompass necessarily a consideration [00:34:44] Speaker 05: I get that argument that there's a spectrum and you would say that this falls somewhere in the middle and closer to Whitman than to, and maybe all the way to Whitman would be your position, but let's just assume, just assume, that we're in the Michigan universe. [00:34:56] Speaker 05: Then the question becomes, what does the company need to do to adequately put forward the Michigan argument? [00:35:03] Speaker 04: Well, I think the company, number one, needs to actually make the argument and say in the context of an adversarial proceeding, which effectively this was, to say, EPA, here are these interests. [00:35:14] Speaker 04: Here's what we've spent. [00:35:15] Speaker 04: Here's the money we've spent on this that we're not going to be able to recoup. [00:35:19] Speaker 04: You need to consider this and take that into account. [00:35:22] Speaker 04: So certainly it needs to do that. [00:35:24] Speaker 04: It did not do that here. [00:35:25] Speaker 04: As is clear, we have one sentence. [00:35:28] Speaker 04: But secondly, I think there's a separate question here as to [00:35:33] Speaker 04: What the agency needs to consider under Section 404C is about as specifically spelled out in the statute as you're going to find. [00:35:45] Speaker 04: It's not just adverse effects with respect to any environmental impact. [00:35:49] Speaker 04: It's four specific resources, municipal water supplies, shellfish beds and fishery areas. [00:35:55] Speaker 04: wildlife and recreational areas. [00:35:57] Speaker 04: And the notion that that is somehow a capacious grant of authority that takes into account... What are the unacceptables, capacious? [00:36:03] Speaker 03: The idea being if there's some effect, adverse effect, but huge costs, [00:36:11] Speaker 03: you know, then that's acceptable. [00:36:14] Speaker 03: Well, if it's the same adverse effect and there's really no cost, well, then it's unacceptable to the word unacceptable is a word of value judgment. [00:36:26] Speaker 03: What is unacceptable? [00:36:27] Speaker 04: So unacceptable here is modified by adverse effect on wildlife. [00:36:31] Speaker 04: So it's not as though, it's not as though the statute said EPA shall withdraw whatever it's not accepted. [00:36:36] Speaker 03: My point is the same, you know, two cases, you have the same effects on wildlife. [00:36:41] Speaker 03: In one case, there's no cost. [00:36:44] Speaker 03: In the other case, it would cost [00:36:47] Speaker 03: to eliminate that adverse effect. [00:36:52] Speaker 03: In one case, you might say it's unacceptable. [00:36:55] Speaker 03: In the other case, you'd say it's acceptable because it would cost too much to get rid to eliminate that adverse effect, to mitigate that adverse effect. [00:37:04] Speaker 03: Wasn't that uncommon use of the term unacceptable? [00:37:07] Speaker 03: Well, first of all, Your Honor, I don't see how you can determine something unacceptable without thinking about [00:37:13] Speaker 03: the universe of facts and circumstances. [00:37:15] Speaker 03: First of all, this is just pinpointing. [00:37:17] Speaker 03: Okay, there are going to be 10 animals affected. [00:37:20] Speaker 03: That's unacceptable. [00:37:22] Speaker 04: This is a discretionary authority around the EPA. [00:37:24] Speaker 04: EPA does not. [00:37:25] Speaker 03: That was true in Michigan, too, though, and the point the Supreme Court made was, yes, it's a discretionary authority, but you have to consider both sides of a ledger in making the decision, not dictating how you balance that. [00:37:38] Speaker 03: The Supreme Court was careful about that, but at least take a pass at it. [00:37:43] Speaker 04: I guess I would just say in Michigan, again, you had an open-ended grant authority, and in fact, the court specifically distinguished another part of the Clean Air Act that talked about adverse effects on the environment. [00:37:53] Speaker 05: Are you taking the position that the agency couldn't take into account these kinds of costs within the rib work of unacceptable? [00:38:01] Speaker 05: If the agency issued a decision that said, we have to take into account the adverse effect on these four specific items, as you rightly point out. [00:38:11] Speaker 05: A, here's our itemization of what those effects are. [00:38:15] Speaker 05: B, we have to determine whether that is unacceptable. [00:38:18] Speaker 05: And in determining whether it's unacceptable, we're going to take into account [00:38:21] Speaker 05: costs to the particular company, you know, the amount of money to spend and the number of jobs that are going to be canceled out as a result. [00:38:31] Speaker 05: Are you saying that that's something that the agency just can't do within the scope of the statute? [00:38:36] Speaker 04: Well, I guess I would distinguish between the determination whether there's been an unacceptable adverse effect on wildlife and the determination whether to act under Section 404C, because again, it's discretionary. [00:38:46] Speaker 04: So the administrator is authorized to act whenever he determines there's been an unacceptable adverse effect on wildlife. [00:38:53] Speaker 04: So I would say that in response to your honor's question, in determination whether there's been an unacceptable adverse effect on wildlife, the sorts of [00:39:01] Speaker 04: the sorts of interests and again, nonexistent evidence that my opponents are pointing to is not something that would be taken into account. [00:39:10] Speaker 05: It's not something that would be, but it's something that could be. [00:39:12] Speaker 05: I guess I'm just trying to understand whether you think that the statute would actually preclude the decision maker from taking into account these things because the word unacceptable just doesn't accommodate that. [00:39:21] Speaker 04: I don't think that the word unacceptable in this context where it's unacceptable adverse effect on wildlife is dependent on [00:39:31] Speaker 04: this sort of cost-benefit balance. [00:39:33] Speaker 03: You're not answering the question. [00:39:34] Speaker 03: Does it preclude the agency from doing it? [00:39:37] Speaker 03: And I think your position on that is yes, because it's specifically focused on wildlife and the other things you mentioned. [00:39:44] Speaker 03: And you can't, under your theory, consider the cost. [00:39:52] Speaker 04: Well, Your Honor, I guess I would point back to the preamble in EPA's 1979 regulations where they went through and explained how EPA interpreted this. [00:39:59] Speaker 04: And keep in mind, we're in Chevron land here. [00:40:02] Speaker 03: So in order to prevail... That's true in Michigan as well. [00:40:04] Speaker 03: I mean, it really does come back to how you read the... That was the whole argument in Michigan, as you know. [00:40:09] Speaker 03: And it really comes back to what's the nature of the word unacceptable. [00:40:14] Speaker 04: Well, again, we're looking at unacceptable. [00:40:17] Speaker 04: I think our textual argument, I think we're quite clearly on the Whitman side of the line here. [00:40:23] Speaker 04: But I would also point out, again, just to get back to the fact that this really was not, there are no serious, legitimate reliance interests that were not considered in this case. [00:40:34] Speaker 03: OK. [00:40:34] Speaker 03: I'm going to interrupt you one second. [00:40:36] Speaker 03: State Farm says to consider all important aspects of the problem. [00:40:41] Speaker 03: And doesn't the problem here concern both the environmental benefits and the money expended in reliance on the permit? [00:40:52] Speaker 04: The problem for EPA in determining whether there are unacceptable adverse effects on wildlife [00:40:56] Speaker 04: concerns the environmental aspects of the problem. [00:40:59] Speaker 04: That's how EPA reasonably interprets the statute. [00:41:03] Speaker 04: And I would also say that, again, look at JA 866 and the study that EPA prepared, this is the penultimate document in volume one of the Joint Appendix, where EPA looked at this and said, look, [00:41:17] Speaker 04: Mingo Logan, even though we're withdrawing the specifications of these particular sites, you can discharge into this other site and not have these sort of drastic economic effects that Mingo Logan's talking about. [00:41:31] Speaker 04: And Mingo Logan came back and it's Archcolet's parent company said, well, we might still be able to profit from this mine, but we wouldn't get the specific rate of return that our investors wanted. [00:41:41] Speaker 04: Well, I don't think that's what Fox is referring to when it refers to serious reliance interests that must be taken into account. [00:41:47] Speaker 04: And my point is simply that the record in this case does not support the argument that my opponents are making. [00:41:54] Speaker 03: Now, if unacceptable, under your theory, to pick up on Judge Srinivasan's question, could be read to encompass consideration of cause. [00:42:10] Speaker 03: isn't it unreasonable if it could be read to encompass consideration of cause? [00:42:16] Speaker 03: Isn't it unreasonable not to consider cause? [00:42:18] Speaker 03: Well, not where they're not in the record. [00:42:20] Speaker 04: Um, I guess. [00:42:21] Speaker 04: How about the theoretical question? [00:42:22] Speaker 04: The theoretical question? [00:42:23] Speaker 04: Um, I mean, I think it goes into if you look at the 404 B one guidelines, they speak of practical alternatives. [00:42:30] Speaker 04: And I suppose there's a there's a manner in which again, this is in the EPA's preamble in 1979 regulations. [00:42:36] Speaker 04: there's a manner in which costs could come into play in relation to a determination whether they're practicable alternatives. [00:42:43] Speaker 04: As EPA indicated in its final decision in this case, there were practicable alternatives available, and Mingo Logan's only response in its reply brief is, well, we didn't think those were practicable. [00:42:55] Speaker 04: Again, that's not on the record. [00:42:56] Speaker 04: They haven't indicated [00:42:58] Speaker 04: why they think that EPA's analysis was incorrect. [00:43:01] Speaker 04: And that's reviewed for substantial evidence. [00:43:02] Speaker 05: One way to think about it is a theoretical matter, just putting to one side the question of whether it was adequately flagged or the agency had enough information before with which to make a cost assessment, is that the core regulations have been the part of a great deal of discussion in the briefing. [00:43:17] Speaker 05: So I take the point that the agency makes that, well, that's the core's regulations. [00:43:22] Speaker 05: We don't have to have the same regulations. [00:43:23] Speaker 05: That's true, but then the question becomes, could you – could you essentially adopt what the Corps has said would be its governing determinations in this arena under the rubric of the EPA's 404C authority? [00:43:38] Speaker 04: Well, certainly given that it's a discretionary authority, there are any number of considerations that when determining whether to exercise its discretionary authority, the EPA could take into account resource constraints and so forth. [00:43:49] Speaker 04: that have nothing to do with environmental effects. [00:43:51] Speaker 04: And we're not suggesting that. [00:43:52] Speaker 05: So if you could take into account the course considerations, then it seems to me the answer to your question on whether 404C would allow you to take into account costs would be yes. [00:44:02] Speaker 04: In acting under 404C, yes. [00:44:04] Speaker 04: But again, I want to distinguish between the action under 404C and the specific scientific determination whether there's been an unacceptable adverse effect on the economy. [00:44:11] Speaker 03: But if it allows you to take into consideration costs, [00:44:14] Speaker 03: isn't it unreasonable not to do so? [00:44:16] Speaker 03: That's what Michigan says. [00:44:18] Speaker 03: Again, Your Honor, I think... Michigan says reasonable regulation ordinarily requires paying attention to the advantages and the disadvantages of agency decisions. [00:44:28] Speaker 04: Again, we have two separate questions here. [00:44:31] Speaker 04: One is whether an unacceptable adverse effect on four listed resources, whether the term unacceptable encompasses cost. [00:44:38] Speaker 04: And on that, [00:44:39] Speaker 04: our answer is no, we don't think it does. [00:44:42] Speaker 04: But then we have the separate question whether EPA has the discretionary authority to act under 404C in any given circumstance. [00:44:50] Speaker 04: And the question whether EPA could take into account particular costs in deciding as a policy matter, we're going to act here, we're not going to act here, is a separate issue. [00:44:59] Speaker 04: But I think just to hold as a matter of statutory interpretation that the term is authorized [00:45:06] Speaker 04: necessarily encompasses this kind of cost-benefit balancing would go far beyond what Michigan held. [00:45:12] Speaker 04: And the Court particularly should be loathe to do that in a context where, again, as here, it's not in the record. [00:45:20] Speaker 04: So I want to get back, though, to the downstream effects and just point out, again, we're going to rest on our briefs within the footprint of the fill. [00:45:31] Speaker 04: It wasn't discussed much in the opening argument. [00:45:33] Speaker 04: I think our argument is quite clear on that, that we think there was substantial new information. [00:45:36] Speaker 04: There's no dispute, Your Honor, at this point, that there was substantial new information regarding the severity and the adverse effect on wildlife downstream of the fill. [00:45:46] Speaker 04: of the fill. [00:45:47] Speaker 04: And that's 2008 post. [00:45:49] Speaker 04: There are all sorts of studies on that. [00:45:52] Speaker 04: Mingo Logan has not contested that. [00:45:53] Speaker 04: So I want to make clear, that is not in dispute, the severity of the adverse effect downstream. [00:45:58] Speaker 04: What's only in dispute, at least in the briefing, is the statutory question, whether EVA is permitted to consider that. [00:46:04] Speaker 04: And the tortured reading of the statute that Mingo Logan sets forward was properly rejected by the district court because it's quite clear from the structure of the Clean Water Act. [00:46:13] Speaker 04: that state water quality standards are a floor, not a ceiling. [00:46:17] Speaker 04: That's been clear both in the text of the Act and EPA and the Corps implementing regulations. [00:46:22] Speaker 04: And to hold that those regulations are impermissible just would be going too far, we would argue for the Court. [00:46:29] Speaker 04: If the Court has no further questions, I'll yield. [00:46:31] Speaker 04: Okay, thank you. [00:46:40] Speaker 01: You know, just a few basic three basic points in rebuttal. [00:46:44] Speaker 01: First of all, my friend from the EPA has sort of suggested that, you know, there were alternatives within the permit. [00:46:51] Speaker 01: There were other specification sites. [00:46:53] Speaker 01: I think that's if that were cracked. [00:46:56] Speaker 01: I mean, I think that would be part of the analysis that the EPA should take into account, which is to say if you have a different hypothetical case where the post-permit withdrawal specification only addresses 12 percent of the disposal site specified in the permit, that might be relevant. [00:47:13] Speaker 01: But this is 88 percent. [00:47:15] Speaker 01: And it's also a context where you don't have to wonder whether EPA itself viewed its actions here as a de facto permit revocation, because their first move was to go to the Corps and ask the Corps to revoke the permit. [00:47:31] Speaker 01: So we're not imagining that revoking 88 percent of the specification here is a close substitute for revoking the permit in the facts and circumstances of this case, but all of that could be part of the analysis. [00:47:43] Speaker 01: Now, when we went to the Corps and the EPA had put the issue live to the Corps about revoking the permit, and we were making our argument to the Corps [00:47:55] Speaker 01: There, and you'll see this at Joint Appendix page 314 to 318, since we had the core's regulation in front of us, we talked about our reliance interest. [00:48:05] Speaker 01: And to be clear, this idea that, you know, I mean, we did account for the fact that there was ongoing litigation, [00:48:11] Speaker 01: And so we didn't immediately start using these sites. [00:48:15] Speaker 01: But we did when we built this facility, we built all of the infrastructure to accommodate the idea that we were going to use 100% of the disposal sites. [00:48:24] Speaker 01: And if we had somehow known in advance [00:48:27] Speaker 01: that we're only going to be able to use 12% of the disposal sites. [00:48:32] Speaker 01: I don't know whether this project would have gone forward at all, but we certainly would have designed the infrastructure differently. [00:48:36] Speaker 01: So, you know, I think it's proof positive that when the agency was willing to [00:48:42] Speaker 01: essentially take reliance interests into its account. [00:48:47] Speaker 01: We weren't shy about sort of putting those front and center. [00:48:50] Speaker 01: It's just that when we were dealing with the EPA, we had no reason to think other than putting it as the background for the whole presentation that they were even going to be receptive to the idea of taking specifics. [00:49:01] Speaker 01: And as they tell you today, you know, they can't have it both ways. [00:49:03] Speaker 01: They can't say we needed to do more and [00:49:06] Speaker 01: that they already accounted for our reliance interest. [00:49:08] Speaker 01: I think we did sort of put that, I really don't think it's credible for EPA to think that we didn't have our reliance interest front and center. [00:49:16] Speaker 01: And the last thing I just end with is, and this gets to both the basic point we've been stressing, but also the downstream of facts. [00:49:24] Speaker 01: This EPA, if it's going to behave rationally in this context, acting both post-permit and in a context where the state has the 402 authority, ought to start its analysis of the whole thing with the reality that the court has already issued this permit in a process where the EPA could have exercised a veto and didn't. [00:49:44] Speaker 01: And here are all of the reasons why what was black then is white now. [00:49:49] Speaker 01: That's where the whole thing should have started. [00:49:51] Speaker 01: And then when it got to downstream water effects, the analysis should have started with the fact that West Virginia had issued a 402 permit for this very site. [00:50:03] Speaker 01: And one thing to keep in mind in that regard is that, and this is really more of an arbitrary and capricious argument than a pure statutory argument, but the 404C is written generically to cover jurisdictions where the state doesn't have the permitting authority under 402 yet, which was the situation like in Alaska, in core Alaska. [00:50:21] Speaker 01: and situations where there's been the elaborate process where the permitting authority has been delegated to the state. [00:50:27] Speaker 01: And it just seems to me to avoid arbitrary capriciousness. [00:50:30] Speaker 01: When you're going to posit that there are adverse, significantly adverse downstream effects, you have to at least explain why the 402 permit is not an obstacle to that conclusion. [00:50:43] Speaker 01: There could be things that the permitting process just doesn't take into account, but you'd want [00:50:46] Speaker 01: an agency, I think, to differentiate between the two to make this work as a sensible accommodation of cooperative federalism. [00:50:53] Speaker 01: Thank you, Your Honors. [00:50:54] Speaker 01: Okay. [00:50:54] Speaker 01: Thank you. [00:50:55] Speaker 01: The case is submitted.