[00:00:01] Speaker 00: Case number 14-1138, Sierra Club D, Puerto Rico, et al. [00:00:06] Speaker 00: Petitioners versus Environmental Protection Agency and Gina McCarthy. [00:00:10] Speaker 00: Mr. Ehlers for the petitioners, Mr. Doyle for the respondents, and Mr. Collins for intervening and responding. [00:00:24] Speaker 02: May I please the court? [00:00:26] Speaker 02: My name is Christopher Reylers. [00:00:28] Speaker 02: I represent petitioners Sierra Club de Puerto Rico, Ciudadanos and Defensa del Anguiente, Majos de Nego de Arecibo, and Comité Basura Cerro de Arecibo. [00:00:40] Speaker 02: Appearing with me today is Ashley Welch, under the student clinic rules of this court, although I will be delivering the oral argument. [00:00:48] Speaker 02: This is a challenge to an EPA rulemaking limiting the applicability of non-attainment new source review to facilities with potential to emit of 100 tons per year of the non-attainment pollutant only. [00:01:03] Speaker 02: Intervener Energy Answers plans to construct a solid waste incinerator in Arecibo, Puerto Rico. [00:01:10] Speaker 08: Let me get to timeliness here. [00:01:14] Speaker 08: Under your view, did this challenge to the rule ripen for your petitioners, for your clients? [00:01:23] Speaker 02: This challenge became ripe when there was final agency action on EPA's granting of an application for a permit under the Prevention of Significant Deterioration Program. [00:01:34] Speaker 02: That occurred on May 19th, 2014, with publication of a notice in the Federal Register. [00:01:41] Speaker 08: Why wasn't it ripe when there was a determination that had been approved by EPA that Puerto Rico was in non-attainment for lead? [00:01:54] Speaker 02: You were referring to the designation at the end of 2011. [00:01:57] Speaker 02: That would still have been speculative for petitioners because there was no final agency action yet. [00:02:07] Speaker 08: Will there be final agency action with respect to whether Puerto Rico was going to be deemed in non-attainment and whether they would have to [00:02:20] Speaker 08: adopt the state implementation plan, right? [00:02:26] Speaker 02: Yes, there would have been final agency action if one were hypothetically to bring a challenge to the non-attainment designation. [00:02:34] Speaker 02: But in this case, we're dealing with the applicability of an EPA rule, limiting the applicability of non-attainment new source review. [00:02:43] Speaker 04: That was in the original rule. [00:02:46] Speaker 04: I'm sorry. [00:02:46] Speaker 04: What you're contesting was there when the rule was promulgated. [00:02:51] Speaker 04: Yes, there's a lot of case law. [00:02:53] Speaker 04: I mean, you're relying on one case principally, and it just doesn't support [00:02:59] Speaker 04: when you compare it to the cases that say you have to file within 60 days of the promulgation of the rule, in this case, in the case that you're relying on, Coalition for Responsible Regulation, EPA promulgated a tailpipe rule, which was an after-effect event, which gave rise to a new time period. [00:03:21] Speaker 04: But there are a bunch of other cases, New York EPA, medical waste, [00:03:25] Speaker 04: ARB to one, ARB to two, that all say that if all you're doing is challenging the regulation as it was promulgated, the same claim that you're making now could have been promulgated, could have been advanced 60 days after the regulation was passed. [00:03:42] Speaker 04: And our case law is quite clear, and I went back through all of these provisions in all of our cases, [00:03:50] Speaker 04: And our case law is quite clear that in this kind of a situation where all you're essentially doing is saying the regulation as promulgated is not consistent with what the statute requires, you're too late. [00:04:04] Speaker 02: Your Honor, we're relying on a long-standing doctrine of this court dating back at least to 1982 in the Baltimore gas and electric case, where the court recognized that petitioners [00:04:18] Speaker 02: after the 60-day period has lapsed may bring challenges to regulations which become ripe only after that 60-day period. [00:04:28] Speaker 02: It was more recently applied in coalition for responsible regulation. [00:04:32] Speaker 04: Well, it was recently applied in New York v. [00:04:34] Speaker 04: – in medical ways, which is just the opposite of what you're saying. [00:04:38] Speaker 04: But we're relying on the Coalition for Responsible Regulation. [00:04:42] Speaker 04: I understand. [00:04:42] Speaker 06: That was the tailpipe rule. [00:04:44] Speaker 04: That was the tailpipe. [00:04:45] Speaker 04: You had an after-regulation event that gave rise to a reason for you to challenge. [00:04:54] Speaker 04: I realize the law in this area is strange, but that's why I went back and looked at all of our cases. [00:05:00] Speaker 04: And what they seem to stand for is if you're not challenging anything more than the regulation as it was originally promulgated, you're too late. [00:05:08] Speaker 04: And you can't come in and say, well, but now we're really concerned? [00:05:12] Speaker 04: Because the challenge is exactly the same. [00:05:15] Speaker 04: It is exactly the same that could have been raised 60 days, within 60 days. [00:05:20] Speaker 04: This concern that you're raising, which is very clear, but it was very clear when this regulation was promulgated many, many years ago. [00:05:28] Speaker 04: And that's the reason we have the rule. [00:05:29] Speaker 04: It's really kind of absurd to prepare a case where you're asking us to look back at the agency's reasons [00:05:38] Speaker 04: in its rulemaking so many years ago, it all seems so out of context and so it makes no sense. [00:05:45] Speaker 04: You're supposed to raise those challenges at the time when the regulation was promulgated. [00:05:49] Speaker 04: That's why we have notice of parole's rulemaking. [00:05:51] Speaker 04: We have opportunity for people to challenge. [00:05:54] Speaker 04: We have 60-day rule. [00:05:55] Speaker 04: You can come in and say what they did doesn't pass Chevron one or two. [00:06:00] Speaker 02: Yes, Your Honor, that is the general rule. [00:06:02] Speaker 02: Within 60 days, you have to bring your challenge. [00:06:05] Speaker 02: But if that was dispositive, and if it was dispositive in coalition for responsible regulation that EPA issued a new interpretation, that would supersede the court's tolling doctrine. [00:06:18] Speaker 02: The principle of the tolling doctrine is to allow petitioners to bring a challenge [00:06:23] Speaker 02: when a regulation becomes right. [00:06:25] Speaker 02: The policy underlying that case was to prevent speculative claims, claims that were not right, to avoid having to put the court through a lot of litigation about claims that may or may not happen in the future. [00:06:39] Speaker 02: And I think it is particularly telling. [00:06:41] Speaker 07: The problem there is you're alleging that the harm you suffer here is caused by the original rule. [00:06:46] Speaker 07: That's what you seek relief on. [00:06:48] Speaker 07: Right. [00:06:48] Speaker 07: And the rule is what it was, just as Judge Edward suggested. [00:06:53] Speaker 04: And your case really proves the point against you. [00:06:55] Speaker 04: I mean, I was surprised that you were relying on it until I went back and looked at all the cases. [00:07:01] Speaker 04: And of course, I saw why, I mean, you didn't have anything else to rely on. [00:07:05] Speaker 04: And the problem is, the case you're relying on, EPA prom... [00:07:10] Speaker 04: It was no longer speculated when EPA promulgated the tailpipe rule regulating greenhouse emissions. [00:07:16] Speaker 04: That was the after the fact event. [00:07:18] Speaker 04: The agency did something, changed the regulation effectively. [00:07:23] Speaker 04: And so now there could be a challenge. [00:07:25] Speaker 04: There is that line of case law that EPA has cited in its brief. [00:07:29] Speaker 04: No, this is your case. [00:07:31] Speaker 04: This is a case you're citing and that's what the court says [00:07:35] Speaker 04: allowed you to file well after the 60 days of the original rule. [00:07:40] Speaker 04: There was an amendment to the rule. [00:07:42] Speaker 04: They changed, they amplified. [00:07:45] Speaker 02: In coalition for responsible regulation, claims became right for petitioners who were subject to EPA's rules from the late 1970s and early 1980s for the first time. [00:07:57] Speaker 02: In our case, the final agency action and the grant of the PSD permit and telling the petitioners that non-attainment new source review did not apply because of this rule [00:08:09] Speaker 02: That created the rightness for our case. [00:08:12] Speaker 02: Rightness depends on the particular context. [00:08:15] Speaker 08: But I guess I can take your argument to a point, but when I went back again and looked at coalition for responsible regulation, the court there pointed out that the challenge was made within 60 days of the promulgation of the new rule. [00:08:39] Speaker 08: And so it seems that your best argument would be that this aspect of the rule didn't apply to Puerto Rico back in 1980 or during the 1990s or during the 2000s. [00:08:57] Speaker 08: But once Puerto Rico was designated as non attainment for lead, then this rule applied to Puerto Rico. [00:09:08] Speaker 08: then the regulation didn't apply to us. [00:09:14] Speaker 08: And therefore, we didn't have a challenge. [00:09:16] Speaker 08: But once it can apply to you, then it seems that under coalition, you have 60 days from that moment to file your petition. [00:09:29] Speaker 08: But you didn't file it within 60 days of the moment that the regulation began to apply to you. [00:09:34] Speaker 08: You filed it 60 days after a permit. [00:09:37] Speaker 08: was finalized. [00:09:40] Speaker 02: Right, but EPA's conclusion that non-attainment new source review did not apply being based on EPA's rule, that conclusion was asserted in responses to comments within that application for the PSD permit. [00:09:54] Speaker 02: So that was all bundled together with the PSD review being done by EPA. [00:10:00] Speaker 07: You are not challenging the permit per se here. [00:10:04] Speaker 07: If it's what causes your harm, [00:10:07] Speaker 07: then you should be challenging it and claiming timeliness and standing with reference to the permit. [00:10:11] Speaker 07: But you're challenging it. [00:10:12] Speaker 07: You went all the way back to the problem against the original rule. [00:10:16] Speaker 07: Yes, Your Honor. [00:10:17] Speaker 07: And you're not – it's harder to see how you're timely and or have standing as to that. [00:10:24] Speaker 02: We're not challenging the PSD permit. [00:10:26] Speaker 02: The role of the PSD permit is to create the ripeness, the ripeness that EPA would have said would have been lacking if we had filed a suit before that, if we had filed a suit when the area was designated as a lead non-attainment area. [00:10:40] Speaker 02: If we had filed a suit when someone had filed an application for a PSD permit, if we had filed a suit when EPA announced notice of a public comment, period, that would not have been final agency action. [00:10:54] Speaker 02: If we had filed an action then, EPA would have said that our claim is not ripe yet. [00:10:59] Speaker 02: So it was all bundled together under the same final action that involved the granting of the PSD permit. [00:11:07] Speaker 08: You cited a case in your brief from the Second Circuit, the Weiler v. Chatham Forest Products case. [00:11:13] Speaker 08: That was a case where residents sued, I guess, the operators who proposed to build a plant to build basically a particle board. [00:11:28] Speaker 08: And in that case, the Second Circuit said that that suit against the operator could be used at least on a motion to dismiss. [00:11:41] Speaker 08: They accepted the proposition that that could be used to challenge the regulation under which the state permit had been issued. [00:11:48] Speaker 08: Why didn't you do that here? [00:11:51] Speaker 02: We're challenging the regulation. [00:11:53] Speaker 02: The EPA rule is what creates the harm. [00:11:56] Speaker 07: EPA's rule creates an administrative... If it creates the harm, why didn't you have standing and rightness within the 60 days after the promulgation of the rule? [00:12:07] Speaker 07: You seem to be leading yourself coming back on this argument. [00:12:11] Speaker 07: If it creates harm, there is a challenge to your standing, certainly the challenge of timeliness, [00:12:16] Speaker 07: And if the rule is what creates the harm, then why did you not have ratness and standing at the time the rule was promulgated? [00:12:24] Speaker 02: Many of our petitioners simply did not exist, either as organizations or as individuals, individuals who had not yet been born yet. [00:12:34] Speaker 04: But I mean, yes, that always lurks in these cases, but we've kind of shrugged our shoulders. [00:12:41] Speaker 04: Like, what can we do about that? [00:12:42] Speaker 04: So a rule 30 years from now, 50 years from now, someone can come in and say, but I wasn't here. [00:12:48] Speaker 04: 50 years ago, and I really don't like that rule, and I think it's inconsistent with the statute, and I'm challenging it. [00:12:53] Speaker 04: Do we allow that? [00:12:54] Speaker 04: Of course not. [00:12:56] Speaker 02: The court allowed it in Baltimore Gas and Electric and Coalition for Responsible Regulation for Corporations. [00:13:02] Speaker 02: We do not believe there is any distinction in the case law. [00:13:05] Speaker 07: How did we allow that in Coalition for Responsible Regulation? [00:13:07] Speaker 07: Where do you see that at all? [00:13:08] Speaker 02: The court held that the Association of Home Builders and the Oil Seed Producers Association could bring ripe claims to an EPA rule from 1980. [00:13:18] Speaker 07: Did we say anything about plaintiffs that had not been in existence, or claimants that had not been in existence at the time of promulgation? [00:13:26] Speaker 02: Yes, Your Honor. [00:13:27] Speaker 02: What was important was that they had not been subject to the rule before. [00:13:30] Speaker 07: Did we say anything about whether their time of coming into existence had anything to do with ripeness or stanchiness? [00:13:36] Speaker 02: It did not address that, no. [00:13:38] Speaker 07: Right. [00:13:39] Speaker 07: I spent an awful lot of time on coalition for, I mean, Supreme Court didn't ever all reverse that right. [00:13:45] Speaker 07: Yes, Judge. [00:13:46] Speaker 02: It's particularly telling, I would like to reserve time for rebuttal, it's particularly telling that the court was looking at page 45, Federal Register 52711. [00:13:54] Speaker 02: That contains the three mistakes that EPA made when it promulgated our final rule. [00:13:59] Speaker 02: I would like to address that rebuttal. [00:14:01] Speaker 07: when rebuttal is for answering things that are said by the EPA. [00:14:05] Speaker 08: I'll give you a couple minutes. [00:14:07] Speaker 08: Why don't you make your argument there? [00:14:10] Speaker 02: This is a Chevron Step 1 case. [00:14:12] Speaker 02: The statute defines a major stationary source as one with potential emissions of 100 tons per year of any air pollutant. [00:14:21] Speaker 02: That applies to both PSD review and non-attainment new source review. [00:14:25] Speaker 02: EPA's rule limits the applicability of non-attainment new source review to only those facilities with 100 tons per year of emissions of the non-attainment pollutant only. [00:14:35] Speaker 02: Alabama Power vacated an administrative exemption very similar to this, where EPA had limited the applicability of best available control technology to only the pollutants for which there were emissions in major amounts. [00:14:49] Speaker 02: That case is very close to ours. [00:14:51] Speaker 02: We believe it's dispositive in this case. [00:14:54] Speaker 02: The rule should be vacated at Chevron step one. [00:14:57] Speaker 02: I find we reserve time for rebuttal. [00:14:59] Speaker 08: All right, thank you. [00:15:00] Speaker 08: We'll hear from the respondents. [00:15:02] Speaker 08: Thank you, Your Honors. [00:15:13] Speaker 03: May it please this honorable court, I'm Andrew Doyle with the Department of Justice. [00:15:18] Speaker 03: I'm joined today by Brian Doster and Elliot Zenick of the Environmental Protection Agency. [00:15:23] Speaker 03: The petitioner's attack on this 35-year-old regulation is too late. [00:15:28] Speaker 03: It's too late under any conceivable construction of the Clean Air Act's judicial review provision. [00:15:35] Speaker 03: That's the thrust of our pending motion to dismiss, and that's quite rightly the focus of this oral argument. [00:15:43] Speaker 08: What is your view of when someone can rightfully claim after a rising grounds to challenge a regulation? [00:15:55] Speaker 03: Those after rising grounds have to be a new event of consequence. [00:16:01] Speaker 03: new information that calls into question the old regulation you wish to attack? [00:16:06] Speaker 08: What if the regulation didn't apply? [00:16:07] Speaker 08: I mean, in 1980, could someone in Puerto Rico have standing to challenge the regulation when there wasn't this aspect of the regulation, when there wasn't even a non-attainment finding? [00:16:21] Speaker 03: Someone in Puerto Rico may not. [00:16:24] Speaker 03: But as Judge Edwards alluded to, Congress drew lines. [00:16:29] Speaker 03: And they had to rely on proxies of interest back at the time of the original promulgation. [00:16:36] Speaker 03: And here, we can see through the comments in the rulemaking, you had interested persons that thought the regulation went too far and others that thought it didn't go far enough. [00:16:49] Speaker 03: So as Judge Edwards noted, you're always going to have cases where people say, I wasn't around then. [00:16:58] Speaker 03: I didn't have standing then. [00:17:01] Speaker 03: But as long as there were proxies and interest, then it's quite rightly applied, just as Judge Edwards has articulated. [00:17:09] Speaker 03: In the coalition case, what the courts there said was that the tailpipe rule [00:17:15] Speaker 03: had the effect of expanding the PSD program to never regulated sources. [00:17:22] Speaker 03: So that is fully consistent with the proxies and interests I was talking about. [00:17:26] Speaker 08: Puerto Rico was never regulated by this regulation, by this aspect of the regulation, until it was deemed in non-attainment. [00:17:36] Speaker 03: Well, even under that view, they're too late. [00:17:39] Speaker 03: Because at the latest, then, it would be the 2011 decision by the EPA that Puerto Rico is in non-attainment for lead. [00:17:48] Speaker 03: And at that time, this source that is the subject of the permit had already filed its application, so they were proposing to build. [00:17:58] Speaker 03: So whether you go under what we think is the correct view, as Judge Edwards has articulated through the case law, or even if you assume, arguing, though, that you have to wait until these particular petitioners had reason to challenge the regulation, they're too late. [00:18:18] Speaker 03: And what EPA did in May of 2012, which they call non-final action, yes it's non-final as to the prevention of significant deterioration permit, but it is [00:18:32] Speaker 03: just a statement of law by the EPA that lead does not require a non-attainment new source review permit because of its low amounts, and that will be dealt with by the state permitting authority. [00:18:46] Speaker 03: That was just a statement of law. [00:18:47] Speaker 03: That was the legal conclusion that follows offer sure I from the designation of Puerto Rico or this part of Puerto Rico as non-attainment for lead. [00:19:02] Speaker 03: So. [00:19:06] Speaker 03: That really answers the case right there. [00:19:08] Speaker 03: They are too late under any conceivable construction of this act's provision. [00:19:12] Speaker 03: Your Honor had cited the Second Circuit case. [00:19:15] Speaker 03: The petitioners rely on that for purposes of redressability in the standing analysis. [00:19:20] Speaker 03: I don't think the court needs to reach the standing question here. [00:19:24] Speaker 03: But if it does, I wanted to bring to the court's attention that there is a circuit split on that question. [00:19:29] Speaker 03: I don't believe this court has addressed the issue. [00:19:32] Speaker 07: Addressed what specific issue? [00:19:35] Speaker 07: What is there a split on? [00:19:36] Speaker 03: They cite this case, and the Second Circuit speaks to the proposition of whether the petitioners may bring suit under the citizen suit provision of the Act to argue against a source. [00:19:48] Speaker 03: You're not getting your non-attainment new source review permit that you need. [00:19:53] Speaker 03: And you are prohibited from constructing until you get that. [00:19:57] Speaker 03: The question is, how do you read that citizen suit? [00:20:00] Speaker 03: Do you read it to say that? [00:20:02] Speaker 05: Is that an issue even before us in this? [00:20:04] Speaker 05: If you don't reach the standing question, it is not before you. [00:20:08] Speaker 05: If you only... Since they're attacking the original rule rather than the permit, would it be before us anyway? [00:20:16] Speaker 03: That's correct. [00:20:17] Speaker 03: That's absolutely correct on the merits. [00:20:19] Speaker 03: That's absolutely correct, as well as the timeliness issue. [00:20:22] Speaker 03: OK. [00:20:23] Speaker 03: The petitioners mentioned also on their merits argument, their Chevron 1 argument. [00:20:29] Speaker 03: I just would underscore what we argued in our brief. [00:20:32] Speaker 03: And that is the case before the Supreme Court on review from coalition dealt with this squarely. [00:20:39] Speaker 03: And you cannot read that opinion and conclude [00:20:43] Speaker 03: and reach any other conclusion, but this is a Chevron 2 question for the EPA on the merits back in 1980 when they looked at this. [00:20:52] Speaker 08: The way that the Supreme Court, though, came to the conclusion that it was a Chevron 2 question was that they said that basically from the beginning, at least the way I read the opinion, from the beginning, EPA interpreted [00:21:13] Speaker 08: major emitting facility to mean different things in different contexts. [00:21:21] Speaker 08: And so that was, I think, a principal linchpin for the court's analysis. [00:21:33] Speaker 08: What's interesting about this statute is that major emitting facility [00:21:40] Speaker 08: and major stationary source appear in the same provision there with the same definition. [00:21:52] Speaker 08: Major emitting facility, that's the only definition that I see in the whole Clean Air Act for it. [00:22:00] Speaker 08: Major stationary source, though, has been, if I'm counting correctly, [00:22:08] Speaker 08: six different places within the statute been given other definitions where it says, well, in this context, major stationary source means this or that or the other thing. [00:22:24] Speaker 08: So Congress clearly knew how to give that phrase a different meaning when it wanted to. [00:22:35] Speaker 08: That's not the case. [00:22:36] Speaker 08: with major emitting facility. [00:22:41] Speaker 08: So it seems to me it's difficult for me to understand how the agency, even if we get the Chevron 2, can justify saying that major stationary source doesn't really mean what the statute says that it means in that provision. [00:23:04] Speaker 03: Well, it's not, of course, the reading of the definition of major stationary source alone. [00:23:09] Speaker 03: You have to see the context in which it is used here. [00:23:12] Speaker 03: And back in 1980, the state of the Clean Air Act then was, there was a construction moratorium. [00:23:19] Speaker 03: And in the construction moratorium, [00:23:22] Speaker 03: Jurassic measures had to be taken to stop these bigger sources from coming into non-attainment areas until the issue could be fixed. [00:23:29] Speaker 03: And so there was a linkage in statutory text between the facility where the emissions from the major stationary source that are causing the non-attainment. [00:23:42] Speaker 03: So it is that statutory text that gave the EPA the authority they needed to do the moratorium. [00:23:51] Speaker 03: Not only to implement the moratorium, but to construe [00:23:55] Speaker 03: the permit requirements of the non-attainment new source review program to what kind of pollutants? [00:24:02] Speaker 03: The pollutants for which the area is designated non-attainment. [00:24:04] Speaker 08: Why does it follow that just because Congress said that there's going to be a temporary moratorium for certain types of facilities that that means that that's the way you interpret what facilities are going to require this type of a permit forever in the future? [00:24:24] Speaker 03: It's not the mere fact that Congress did it. [00:24:26] Speaker 03: It's what they wrote. [00:24:28] Speaker 03: And what they wrote was, no major stationary storage, this is on page 45 of our brief, shall be constructed or modified in any non-attainment area if the emissions from such facility will cause or contribute to concentration of any pollutant for which a standard is exceeded in such area. [00:24:49] Speaker 08: But why does that help you? [00:24:51] Speaker 08: Because they could have said that exact same thing [00:24:54] Speaker 08: in the provisions where they said what types of facilities need permits. [00:24:59] Speaker 08: They didn't use that language. [00:25:01] Speaker 08: If anything, that seems to hurt you, not help you. [00:25:03] Speaker 03: Well, at best, you can read it either way. [00:25:07] Speaker 03: But when you couple it together with the offset ruling, where EPA explicitly tied non-attainment areas with non-attainment pollutants, you have Congress codifying it. [00:25:18] Speaker 03: That very offset ruling, it was law for at least two years of time. [00:25:23] Speaker 03: It was a statutory law for two years of time. [00:25:26] Speaker 03: And then Congress built on it with other provisions. [00:25:29] Speaker 03: That's clearly a congressional endorsement of EPA's linkage of pollutants for the major stationary source in non-attainment areas with non-attainment pollutants. [00:25:39] Speaker 03: You also have other indications in the statute beginning on page 48 and 49 of our brief linking pollutants in non-attainment areas with the reason why that area is designated non-attainment. [00:25:52] Speaker 08: I just don't think that that construction makes sense in the overall context of the statute. [00:26:00] Speaker 08: The reason that you have these special rules in non-attainment areas is that it says we're going to take an inventory [00:26:07] Speaker 08: We're going to see how much of this pollutant that you're out of compliance with here in lead is being emitted from all the sources within that area. [00:26:19] Speaker 08: And then our goal is to reduce that because we want you to get attainment. [00:26:27] Speaker 08: We want you to gain attainment. [00:26:29] Speaker 08: Within five years is kind of the default, right? [00:26:32] Speaker 08: Right. [00:26:33] Speaker 08: How can you gain attainment [00:26:36] Speaker 08: If in this, like an instance like this, you approve a facility that's emitting more lead into the atmosphere than the facility that caused you to get out of attainment in the first place. [00:26:51] Speaker 08: How does that make any sense? [00:26:53] Speaker 03: You do it three ways. [00:26:54] Speaker 03: One, the major sources are required to get a permit, a major source permit. [00:26:59] Speaker 03: But don't forget, there is the statutory obligation for the states and territories to make reasonable further progress and to regulate minor sources to come into attainment. [00:27:11] Speaker 03: So there are three different books to get to the attainment. [00:27:15] Speaker 03: And the argument the petitioners raise only deals with one of those books. [00:27:20] Speaker 03: the lowest achievable emission rate requirements and the offset requirements. [00:27:25] Speaker 03: But you still have requirements, and Puerto Rico has implemented those requirements here. [00:27:30] Speaker 08: But why would you interpret major source, then, given the way the focus that Congress has, where they kind of has this laser-like focus on the non-attainment pollutant, to say, well, major source means you've got to be [00:27:48] Speaker 08: major for that pollutant. [00:27:51] Speaker 08: So we don't really care about lead unless you are spewing out 100 tons per year of lead. [00:27:59] Speaker 08: Why does that make sense when you look at the overall [00:28:03] Speaker 03: Well, as EPA explained, they took first in the offset ruling, which again was codified by Congress, they took a resource look at that and said, we can't, we've got to take fast sweeping measures, but we can't get to everybody right away. [00:28:18] Speaker 03: So we're going to deal with the majors through the permit program, require the states to make reasonable further progress and issue minor source permits for the non-minor, for the non-major sources. [00:28:30] Speaker 08: I don't see anything in the record explaining why, if you define major source the way the petitioners say it should be defined in this context, that it would be administratively unreasonable or burdensome. [00:28:44] Speaker 08: You don't have the record that you had in utility air. [00:28:49] Speaker 08: You don't have anything close to it. [00:28:51] Speaker 08: You don't even make that argument in your brief. [00:28:54] Speaker 03: We do in the context of the offset ruling, this is beginning on page 49 of our brief through the balance, the offset ruling EPA was explicit and gave a resource explanation for its construction [00:29:09] Speaker 03: of applying the major source permit requirement only to non-obtainment pollutants. [00:29:16] Speaker 03: It was very explicit there. [00:29:18] Speaker 03: And our point there is that you're correct in the sense that EPA did not say the same rationale when it promulgated the rule at issue. [00:29:25] Speaker 03: But because it did, in fact, invoke the offset ruling, that explanation is there by necessary implication. [00:29:33] Speaker 03: And the standard is whether the agency's path can reasonably be discerned. [00:29:38] Speaker 03: And we submit that's met here. [00:29:41] Speaker 03: Granted, you have to tie a few federal registers together to get there. [00:29:46] Speaker 03: But the standard is, is that a agency explanation that's reasonably capable of being discerned? [00:29:54] Speaker 03: We believe that's the case. [00:29:56] Speaker 03: The court has no other further questions. [00:29:59] Speaker 03: All right. [00:29:59] Speaker 03: Thank you. [00:30:01] Speaker 03: Thank you. [00:30:01] Speaker 03: We request that EPA's motion to dismiss be granted. [00:30:04] Speaker 08: Thank you. [00:30:13] Speaker 01: May it please the Court, Brendan Collins, for Energy Answers, Arecibo. [00:30:19] Speaker 01: Energy Answers agrees with everything that EPA presented in his brief and in Mr. Doyle's argument here today. [00:30:27] Speaker 01: But I'm not here to defend the pool. [00:30:29] Speaker 01: I'm here to talk about the permit that was issued by EPA to Energy Answers, Arecibo for this facility in Puerto Rico, and which is sort of the subject of this appeal. [00:30:43] Speaker 01: In the petition for review, the petitioners sought review of three things. [00:30:47] Speaker 01: Number one, the prevention of significant deterioration, permanent issue by EPA. [00:30:52] Speaker 01: I'm just going to call that the EPA permit. [00:30:53] Speaker 01: I've only got three minutes to the Environmental Appeals Board decision, upholding that permit. [00:30:59] Speaker 01: And then three, the rule, which has been the exclusive focus of the substantive arguments in this case in the brief. [00:31:05] Speaker 06: That's the only relief. [00:31:06] Speaker 06: They pray in the only relief they pray goes to the rule, right? [00:31:10] Speaker 01: Well, that is true in their brief, and that is true given what Mr. Owlers says. [00:31:15] Speaker 01: And so I'm here primarily to call the attention of the court to that issue and to ensure that the court recognizes that there is absolutely no information given, no reason given, no citation of the record into law that would suggest that this court should do anything other than deny the petition for review with respect to the permit and with respect to the environmental appeals board decision of holding the permit. [00:31:39] Speaker 08: You say in your brief in a footnote that if they're challenging the Puerto Rico permit, which for all intents and purposes is a state permit, they would have to go through the state kind of APA administrative review process and then up through the Puerto Rico Supreme Court. [00:31:59] Speaker 01: That's correct, Your Honor. [00:32:00] Speaker 08: What would happen after that? [00:32:02] Speaker 01: After that, after the Puerto Rico Supreme Court rules, [00:32:07] Speaker 01: I believe that that would be the final authority on the issue of whether or not the Puerto Rico permit complies with the requirements of Puerto Rico law. [00:32:16] Speaker 01: And this is a case classically which demonstrates the operation of the Clean Air Act. [00:32:21] Speaker 01: EPA establishes a rule requiring state implementation plan requirements. [00:32:26] Speaker 01: state adopts its own organic laws or the Commonwealth adopts its own organic laws to implement that holds them up to EPA for approval as a state implementation plan. [00:32:37] Speaker 01: EPA approves and then the state goes and implements those laws. [00:32:40] Speaker 08: So you're saying that they couldn't bring [00:32:44] Speaker 08: In that a challenge to whether the state implementation plan actually should have been approved in the first place because it. [00:32:55] Speaker 08: It violates the federal statute. [00:32:57] Speaker 01: That's correct, your honor. [00:32:58] Speaker 01: The approval of Puerto Rico State Implementation Plan is compliant with these rules is an entirely different federal action. [00:33:05] Speaker 01: We cite to that. [00:33:06] Speaker 01: I believe it was in 1997. [00:33:07] Speaker 01: We cite to it in our brief as it does. [00:33:11] Speaker 08: So what is your position as to when and how that could be challenged? [00:33:16] Speaker 01: Well, my position, first of all, is that this is a challenge to the rule on its face for reasons that were not only could have been raised, but in fact were raised in the comment process at the time, as EPA has articulated. [00:33:30] Speaker 01: I will also say that the Court should not be concerned that petitioners in – people in a petitioner's situation here and elsewhere are just flat out of luck, because there are procedures by which interested parties can, in fact, seek reconsideration of rules, even 35-year-old rules by EPA if new facts are presented to change EPA's mind. [00:33:56] Speaker 01: Yes sir, petition for rulemaking or reconsideration of the existing rule of judgment. [00:34:01] Speaker 01: So those procedures are available, and those would be different avenues in. [00:34:05] Speaker 01: As a business, Energy Answers has to come to the law as it is. [00:34:10] Speaker 01: This project began really long before it began its permit applications in 2011. [00:34:15] Speaker 01: It assessed the law. [00:34:16] Speaker 01: It decided what was permissible. [00:34:18] Speaker 01: It made its investments and so forth. [00:34:22] Speaker 01: And it's inconceivable that 36 years later, a rule that has been undisturbed for all my entire time of practice [00:34:30] Speaker 01: would be flipped over and require different things. [00:34:35] Speaker 01: And that demonstrates the wisdom of both Congress's decision in requiring timely appeals, and of this course, jurisprudence in making sure that the window for after-rising grounds is very, very narrow. [00:34:49] Speaker 01: I see my time is up. [00:34:50] Speaker 01: I thank you very much for your attention. [00:34:53] Speaker 08: Thank you. [00:35:03] Speaker 02: Your Honor, in response to the Department of Justice, our petitioners are just like the never-regulated sources in Coalition for Responsible Regulation. [00:35:13] Speaker 02: We were regulated when we were told that an administrative exemption from non-attainment news source review applied to us. [00:35:20] Speaker 02: A company is injured when a permit requirement is imposed. [00:35:25] Speaker 02: We're injured when EPA applies an administrative exemption which says that a permit requirement does not apply. [00:35:34] Speaker 02: Number two, the 1977 amendments, which created the permit requirement for non-attainment new source review, came after the offset ruling. [00:35:42] Speaker 02: The construction moratorium cited by EPA today and cited by EPA at 45 Federal Register 52711 as the basis for its rule was never limited to potential emissions in major amounts of non-attainment pollutants. [00:35:58] Speaker 02: It was limited to a major stationary source that is defined in section 302 of the Clean Air Act as one with potential emissions of 100 tons per year of any air pollutant. [00:36:10] Speaker 02: The such language that he here refers to today simply referred back to the statutory definition. [00:36:16] Speaker 02: The construction moratorium further said, it applies to a major stationary source if it causes or contributes to concentrations of the non-attainment pollutant. [00:36:26] Speaker 02: That was not a numerical limitation on the amount of pollutants of the non-attainment pollutant. [00:36:33] Speaker 02: That would be admitted sufficient to trigger the requirement of a permit under this program. [00:36:39] Speaker 02: Number three. [00:36:42] Speaker 02: The language in the petition for review related to the Environmental Appeals Board, that picked up any references to the very issues that we brought before the Environmental Appeals Board. [00:36:53] Speaker 02: We've made it clear we're not asking for rescission of the PSD permit. [00:36:57] Speaker 02: So the arguments of energy answers are not material. [00:37:01] Speaker 02: I see my time is up. [00:37:02] Speaker 02: If I could just finish very briefly. [00:37:06] Speaker 08: All right. [00:37:07] Speaker 08: 30 more seconds. [00:37:08] Speaker 02: Finally, the equitable arguments simply are not material to this case. [00:37:14] Speaker 02: This is a chevron challenge. [00:37:17] Speaker 02: The court need look no further than chevron step one. [00:37:20] Speaker 02: The statute is clear. [00:37:21] Speaker 02: Potential emissions in major amounts of any air pollutant. [00:37:26] Speaker 02: That is the statutory trigger for PSD review. [00:37:29] Speaker 02: That is the statutory trigger for non-attainment resource review. [00:37:33] Speaker 02: EPA has created an administrative exemption, which clearly violates the plain language, the text of the statute. [00:37:41] Speaker 02: My clients were injured when the permit was granted, when there was final agency action, when they were told that this administrative exemption applies and excused the obligation to obtain the permit. [00:37:56] Speaker 02: All right, thank you. [00:37:57] Speaker 08: Thank you, Your Honor. [00:37:57] Speaker 08: We'll take the case under advisement.