[00:00:02] Speaker 00: Case number 17-5010, Environmental Integrity Project at ELL vs. E. Scott Pruitt and his official capacity as Administrator, United States Environmental Protection Agency, State of South Dakota Appellant. [00:00:15] Speaker 00: Mr. C.B. [00:00:16] Speaker 00: for the Appellant. [00:00:17] Speaker 00: Mr. Ludman from Appellee E. Scott Pruitt and Mr. Crone for Appellee's EIP at ELL. [00:00:35] Speaker 05: Good morning. [00:00:35] Speaker 05: Good morning. [00:00:37] Speaker 05: Good morning. [00:00:38] Speaker 05: Paul Sebe on behalf of the state of North Dakota. [00:00:41] Speaker 05: North Dakota was erroneously excluded from the case about the future of the solid waste management program under Subtitle D of the Resource Conservation and Recovery Act. [00:00:53] Speaker 05: The implementation and enforcement of which has been expressly delegated by Congress to states like North Dakota. [00:00:59] Speaker 05: The District Court's denial of North Dakota's motion to intervene was error under recent and subsequent Supreme Court precedent, as was the Court's failure to take up North Dakota's motion to dismiss and decision to exclude the state from the negotiation of a subsequent consent decree that purports to resolve this case, a decree that we argue is inconsistent with the statute itself. [00:01:25] Speaker 05: Plaintiffs in the district court and appellees here are a collection of public interest groups that sued EPA in the district court, arguing two principal failures to perform non-discretionary duties. [00:01:38] Speaker 05: The complaint, though, that they filed in that case has four prayers of relief that demonstrate their case is far more than just a deadlines case or a scheduling case. [00:01:48] Speaker 05: namely that they make several factual allegations alleging deficiencies in several states' solid waste oil and gas management programs, including North Dakota's, which we contest. [00:02:01] Speaker 05: And the prayers for relief in the complaint sought the district court to order EPA to proceed to rulemaking to revise the rigorous subtitle D [00:02:14] Speaker 05: oil and gas, solid waste regulations, and the criteria for state guidelines. [00:02:21] Speaker 05: That demonstrates that at the time the case was filed, it was more than just a deadlines case. [00:02:26] Speaker 03: Mr. [00:02:26] Speaker 03: C.B., what is the procedure that the state argues was violated by entering the consent decree, the procedure that would protect North Dakota? [00:02:43] Speaker 05: Two things. [00:02:44] Speaker 05: One is that we were improperly denied intervention in the district court to participate in that proceeding. [00:02:51] Speaker 05: And then the responsive plea that was filed with the motion to intervene was a motion to dismiss, which was never considered. [00:02:58] Speaker 05: And then to your question, the deficiencies with the consent decree as it was finalized are that it's not consistent or authorized by the statute that it purports to implement. [00:03:10] Speaker 03: Tell me about that, because that's what I'm curious about is what is the right that North Dakota is claiming was violated that it seeks to or would have asserted had it been included. [00:03:22] Speaker 05: Right, right. [00:03:23] Speaker 03: And I'm going to take this to be related to your, this is the inverse of the IP standing. [00:03:32] Speaker 03: They had a right because [00:03:34] Speaker 03: they were trying to assert, you know, trying to get EPA to comply with the deadlines. [00:03:38] Speaker 03: And you're, I take it you're not saying no, EPA should not comply with the deadlines. [00:03:42] Speaker 03: What is the right that you, that you think gives you skin in this game at this early stage? [00:03:47] Speaker 05: Sure. [00:03:47] Speaker 05: Principally, it's an omission, Judge Pullard. [00:03:49] Speaker 05: And the omission is that the statute itself, 6912, [00:03:55] Speaker 05: A talks about A1 references the state's role in conjunction with EPA's duty to conduct rule-makings. [00:04:05] Speaker 03: The states are the- But the rule-making hasn't happened yet. [00:04:08] Speaker 03: That's right. [00:04:08] Speaker 03: And so their position is- That's exactly right. [00:04:11] Speaker 03: To the extent there's going to be a rule-making, there's a statutory schedule for that, the consent decree enforces that, you will be able to comment, object, [00:04:23] Speaker 03: Petitions. [00:04:25] Speaker 05: Exactly. [00:04:26] Speaker 05: So the issue is that 6912A1 talks about states as the only entity in the implementation of EPA's decision whether to engage in rulemaking, the initial one or subsequent revisions to those rules. [00:04:42] Speaker 05: The state is the only one that EPA is required to consult with in the development of that and that makes [00:04:47] Speaker 05: perfect sense for a statute that Congress wrote to be a model of cooperative federalism where the states and the federal government work to implement these programs, which the states principally implement. [00:04:57] Speaker 05: This is a state implementation program. [00:05:00] Speaker 05: Got it. [00:05:01] Speaker 03: But so, just to press you a little bit more on that, the [00:05:06] Speaker 03: You may well, as a first among equals, or not even among equals, as a statutorily specified partner in this program, once EPA gets down to the consideration that it has now scheduled under this consent decree of whether [00:05:28] Speaker 03: updates to Schedule D regulations aren't required, you may be able to convince them no. [00:05:33] Speaker 03: So you have a seat at that table. [00:05:36] Speaker 03: So the question is what [00:05:40] Speaker 03: nobody's excluding you from that. [00:05:41] Speaker 03: And there hasn't been a determination that there in fact needs to be any further regulation or indeed if the regulation is going to happen that it will favor North Dakota. [00:05:51] Speaker 03: So I'm just still trying to get at what's happened so far that you think disadvantages or impairs a right of North Dakota. [00:05:59] Speaker 05: Sure. [00:06:00] Speaker 05: Judge, the answer to your question, the direct answer to your question is that the statute gives the state [00:06:05] Speaker 05: a role with EPA required to consult with it over whether and how to do a rulemaking. [00:06:12] Speaker 03: Right. [00:06:12] Speaker 03: But they haven't committed to doing a rulemaking. [00:06:14] Speaker 03: They've committed to consider whether to do a rulemaking. [00:06:16] Speaker 05: We're skipping over a step, though. [00:06:17] Speaker 05: We're skipping over a step, if I can just get this out. [00:06:21] Speaker 05: EPA is required to consult with the states, including North Dakota, and we care a lot because we're the second largest oil and gas producing state in the country and have an extensive and long-standing program that's very unique and we think very effective. [00:06:35] Speaker 05: We want to be able to talk to EPA about that program in light of the review that the statute compels EPA to conduct at a minimum of every three years. [00:06:44] Speaker 05: And in the process of doing that review, [00:06:46] Speaker 05: and consulting, none of which is mentioned in the consent decree. [00:06:50] Speaker 05: So the concern is that the consent decree is different than the statute, and the difference is in omission, which excludes our role in informing EPA's not only the review process through the consultation, referenced nowhere in the consent decree, but because that is what goes into EPA deciding under the consent decree whether to do a rulemaking at all. [00:07:11] Speaker 04: But if we read the consent decree to [00:07:13] Speaker 04: to incorporate that kind of consultation as a necessary part of the decision whether to issue a new rule, then is your concern assuaged? [00:07:25] Speaker 05: Well, I think the problem, Judge Trenavesan, is that the consent decree is an attempt to re-characterize what the statute says EPA must do, and when it doesn't do so in a complete fashion, that's the omission is where the substantive problem is. [00:07:42] Speaker 05: If you read it that way, I think it's helpful. [00:07:47] Speaker 05: But the problem is that we should have been admitted to this case earlier. [00:07:52] Speaker 05: And the fact that the district court didn't do that, it did so with an asymmetrical standing test, which is in error. [00:08:00] Speaker 05: Nothing in Article III supports that asymmetrical standing test for a state that has a primacy role in implementing a statute directed by Congress [00:08:12] Speaker 05: having a harder time to get standing than a challenging entity that's a proponent of more regulation that's discretionary with the agents. [00:08:19] Speaker 05: So we think that that's an error. [00:08:21] Speaker 05: We should have been admitted to this case. [00:08:23] Speaker 05: And in fact, the Supreme Court's decision in June of this year, town of Chester, were required to be admitted to the case because we, at the time of the district court proceeding, [00:08:34] Speaker 05: EPA and North Dakota were similarly situated, had the same positions, both opposing the relief sought and the standing of the plaintiffs. [00:08:44] Speaker 03: But that's precisely why under this circuit's precedent, which I don't take Town of Chester to have dislodged, at the time you sought to intervene, your interests were being fully and adequately represented by EPA. [00:08:57] Speaker 03: No, that's not... They were saying, we resist this deadline. [00:09:01] Speaker 03: And you were saying, yeah, we resist this deadline. [00:09:05] Speaker 05: We don't resist the deadline. [00:09:06] Speaker 05: I mean, there's no objection to what the statute compels. [00:09:09] Speaker 03: But isn't that all that the consent decree implements? [00:09:14] Speaker 05: No, that's my point, is that the consent decree does not mirror the statute. [00:09:18] Speaker 05: It omits the first and primary step that involves our role as a state. [00:09:24] Speaker 05: And so that is an error of law. [00:09:26] Speaker 05: The consent decree has to be, under the Supreme Court precedent, has to be consistent with the statute that it purports to implement, and this one is not. [00:09:36] Speaker 04: But the consent decree just doesn't address that issue by terms. [00:09:41] Speaker 04: I don't know that you would read the consent decree in a way that would be inconsistent with the statute, because the consent decree just doesn't speak directly to that question. [00:09:54] Speaker 04: I assume that the parties that entered into the consent decree assumed that [00:09:59] Speaker 04: when the process of rulemaking that's contemplated by the consent decree would be taking place, that it would be done in a manner that's consistent with the statute. [00:10:09] Speaker 05: If the consent decree was the product of North Dakota being properly admitted, which we were not, the consent decree would read differently than it does now. [00:10:18] Speaker 03: That's our position. [00:10:19] Speaker 03: It would be helpful to me. [00:10:20] Speaker 03: So I'm looking at the consent decree. [00:10:23] Speaker 03: This is the Appendix 223, where it says EPA shall either [00:10:28] Speaker 03: Sign a notice of proposed rulemaking or B, this is paragraph five, B, sign a determination that revision of the regulations is not necessary. [00:10:38] Speaker 03: So either they're going to not do anything. [00:10:40] Speaker 05: Sorry Judge Pollard, what paragraph are you referring to? [00:10:42] Speaker 03: Five on page 223 of the appendix. [00:10:46] Speaker 03: And this is in the now therefore let it be decreed part of the consent decree. [00:10:53] Speaker 03: And I take this to track ordinary regulatory process that EPA is either going to propose rulemaking in which event North Dakota would surely have full notice and comment opportunities or explain that it has no intention of changing the existing rules that are on the books. [00:11:16] Speaker 03: In either event, if North Dakota says, you should change them and make them easier for us to implement, or you should not change them, in either event, that provides you notice and an opportunity. [00:11:31] Speaker 03: And you say, no, no, that's not enough. [00:11:34] Speaker 03: And that's what I'm not quite getting is why. [00:11:38] Speaker 05: Sure. [00:11:39] Speaker 05: Well, the consent decree, the section that you're talking about and elsewhere, makes no reference to a piece of the statute that precedes this review process or the rulemaking process. [00:11:54] Speaker 05: First of all, it omits the discussion about the review that EPA must conduct and the context and the timing and the chronology of that review as specified in [00:12:04] Speaker 05: uh... sixty nine forty two a and b with respect to the record guidelines for states always want that occur and i guess i'm picking up on judge for us in question this nearly sets [00:12:19] Speaker 06: a deadline for the end of the process that doesn't say that what you described can't happen or shouldn't happen? [00:12:26] Speaker 06: It doesn't. [00:12:27] Speaker 06: You're right, Judge. [00:12:28] Speaker 05: It doesn't preclude those things. [00:12:31] Speaker 05: But our problem is that when we are a state under a statute that is a model of cooperative federalism, for that omission to occur, a selective citation to the statute over a process would only reference the tail of it, but not the process leading to it that informs it. [00:12:48] Speaker 06: That would be a flawed process in your view. [00:12:52] Speaker 06: Absolutely. [00:12:52] Speaker 06: If we get to the end date and that hasn't occurred. [00:12:56] Speaker 06: That's right. [00:12:57] Speaker 06: That would be an objection you would have. [00:12:59] Speaker 06: That's correct. [00:13:00] Speaker 06: And they presumably wouldn't have an answer to that, so you'd prevail. [00:13:06] Speaker 06: In other words, I don't know that if they don't do what you want, you're going to have a valid objection at the end of the day to whatever comes out of this, if it's anything more than nothing. [00:13:21] Speaker 06: Possibly. [00:13:22] Speaker 06: Possibly. [00:13:23] Speaker 06: And I don't see, and I think that's the district court's point too, which is just to put a date in there is not excluding you. [00:13:32] Speaker 06: from what's going to transpire from now to then? [00:13:37] Speaker 05: Well, while we're on the topic of about deficiencies in the consent decree, there's also, there is nothing in the statute that requires EPA to come to a formal written decision if they determine not, that it's not necessary to issue regulations. [00:13:52] Speaker 05: And now the consent decree imposes that obligation on the agency. [00:13:55] Speaker 05: That's another difference that is not in the statute. [00:14:00] Speaker 05: How does that hurt you? [00:14:01] Speaker 05: Well, through uncertainty in the program that we implement, if EPA is going to be sued for a final agency action, that the statute doesn't require them to reduce to writing that can be challenged by a plaintiff. [00:14:14] Speaker 05: There it creates some regulatory uncertainty in the administration of programs that we have the primacy and implement. [00:14:20] Speaker 05: So that's the answer to that question, Judge. [00:14:24] Speaker 01: I want- Go ahead. [00:14:25] Speaker 05: I just, I'm sorry. [00:14:26] Speaker 05: I didn't mean to interrupt you. [00:14:27] Speaker 01: Go ahead. [00:14:27] Speaker 05: I just want to emphasize, though, that this discussion about whether the consent decree can be read in a way that's less harmful to North Dakota's cooperative federalism role under the statute. [00:14:40] Speaker 05: is something that we should have been admitted to this case and in fact in the Town of Chester case we are authorized to be permitted now by the Supreme Court because our interests are in parity with EPA's at the time of this case in the district court. [00:14:56] Speaker 05: That's separate from the content of the consent decree. [00:14:58] Speaker 05: But the reason I bring this up is because if we've been properly admitted and must be now [00:15:04] Speaker 05: then we have a chance to participate in the dialogue with EPA and the plaintiffs with regard to what the content of the consent decree is and make this point, Judge Kavanaugh, about what's the problem then if we can't have a consent decree that spells out the statutory process? [00:15:18] Speaker 05: Why only have the resulting end and then see if it works out? [00:15:21] Speaker 05: Why not just have a consent decree that says the state shall be consulted with by EPA prior to the development and the determination of whether to conduct a rulemaking? [00:15:32] Speaker 03: I realize that we are confined to the administrative record and that this is not in the record, but I'm just curious about whether you've had any experience in seeking to consult with EPA under 6942 and been told, no, we can't because we have this consent decree. [00:15:50] Speaker 05: I can tell you my personal experience on that, Judge, and it's not in the record. [00:15:54] Speaker 05: It's mentioned in the briefs, in the district report. [00:15:57] Speaker 05: Because before the briefing started, and what during our motion to intervene was pending, and before EPA opposed it, and the plaintiffs opposed it, we contacted EPA to have such a discussion to say, what about all of these years that we've been in consultation with EPA and you've been reviewing North Dakota's program? [00:16:16] Speaker 05: because we have modified our regulations as the Bakken oil shale development has grown, waste has grown, and the need to manage those in a responsible and environmentally appropriate manner has grown, and EPA has been our partners in working through that. [00:16:32] Speaker 05: What about all of that dialogue, EPA? [00:16:35] Speaker 05: They said, well, [00:16:36] Speaker 05: We really can't talk about that here. [00:16:38] Speaker 05: We're just going to have a dialogue with the plaintiffs. [00:16:41] Speaker 05: And they went off and opposed our intervention. [00:16:43] Speaker 05: And our partnership was not respected. [00:16:46] Speaker 03: I'm just wondering whether that's speaking to the same issue. [00:16:51] Speaker 03: There's the one issue of deadline or no. [00:16:55] Speaker 03: This is just to, you know. [00:16:56] Speaker 05: Yeah, right. [00:16:56] Speaker 05: We should not contest it. [00:16:58] Speaker 03: And the way that the agency has characterized it is that that's all the consent decree is about. [00:17:06] Speaker 03: And so if they're saying, no, no, we're not going to hear from you or be persuaded by you, if all they're thinking they're not going to be persuaded by you about is the deadline, then that's not really a derogation of the interest that you're seeking to promote, which is when we get into the details of substantively what these solid waste rules should look like, we still want to talk. [00:17:31] Speaker 03: But you understand them to be closing the door even on that. [00:17:34] Speaker 05: That's right, because we had that dialogue. [00:17:37] Speaker 03: And you also mentioned you think town of Chester [00:17:40] Speaker 03: makes clear that you have standing your interest being aligned with EPA's and I'm not quite following that. [00:17:47] Speaker 05: We read Town of Chester, I think, which is a unanimous case. [00:17:52] Speaker 05: We read it clearly to say that that North Dakota need not demonstrate independent standing when we seek the same relief as a party to the case. [00:18:02] Speaker 05: And so my point there Judge Pollard is that EPA's answer to the complaint mirrors North Dakota's motion to dismiss in the district court. [00:18:10] Speaker 05: The objection to the plaintiff's standing, the objection to the plaintiff's claims as being barred by the statute of limitations, and the failure to state a claim upon which relief can be granted. [00:18:20] Speaker 05: We're exactly the mirror image of each other's positions at that time. [00:18:25] Speaker 05: And based upon that, our standing should. [00:18:27] Speaker 05: And even the plaintiff citizen groups agree in this court's briefs that we have standing under the town of Chester's decision. [00:18:36] Speaker 05: So at a minimum, we would ask the court remand this case to the district court to grant our intervention and to set aside the consent decree so we can have a seat at that table. [00:18:47] Speaker 04: So if you take into account your challenge with the consent decree, then the interests diverge. [00:18:53] Speaker 05: Well, sure, because that's later in the game and that's after we were set aside and not allowed and so forth. [00:19:00] Speaker 05: But the proper assessment of our relationship with EPA's position for standing purposes is at the time that we sought to intervene, not now. [00:19:08] Speaker 05: We'll give you some time on rebuttal. [00:19:10] Speaker 05: Thank you, Judge. [00:19:30] Speaker 07: Good morning. [00:19:30] Speaker 07: May it please the court. [00:19:31] Speaker 07: Robert London representing UK Administrator Pruitt. [00:19:33] Speaker 07: I'll be arguing for nine minutes and plaintiffs will be arguing for six. [00:19:37] Speaker 07: Under this court's case law, to intervene as a right, you have to have standing. [00:19:41] Speaker 07: To have standing, you have to have an injury. [00:19:44] Speaker 07: So the question here is, does the consent decree injure North Dakota or not? [00:19:48] Speaker 07: It only sets a schedule for the initial decision of whether or even to go forward with a proposed rulemaking, and then another deadline if the agency decides to go forward. [00:19:59] Speaker 07: That schedule only does not injure North Dakota, so it lacks standing. [00:20:04] Speaker 07: Town of Chester does not change the analysis in this case. [00:20:08] Speaker 07: In Town of Chester, the Supreme Court's holding is, intervener at least have to show standing when they seek relief that is different from all the parties to the case. [00:20:19] Speaker 04: And what do you do with opposing counsel's point that the proper timeframe for making that assessment isn't after the fact, so it's true, it may be true that now we know they seek to challenge the consent decree, and EPA obviously entered into the consent decree, so. [00:20:34] Speaker 04: they're differently situated, but if you look back at the time when the intervention was sought, the interests, it wasn't apparent that the interests were misaligned. [00:20:42] Speaker 07: Well, I think Town of Chester answers that question itself. [00:20:46] Speaker 07: When the intervener in Town of Chester originally showed up, it appeared that maybe it was aligned with the plaintiff. [00:20:53] Speaker 07: Town of Chester said, well, that's not good enough. [00:20:55] Speaker 07: The question is, [00:20:56] Speaker 07: If the divergence occurs, you have to show standing then and remanded for the lower course to determine if that divergence had occurred and so standing was required. [00:21:05] Speaker 07: So I think post-consent decree, North Dakota's the only party here, only potential party here saying there's a problem with the consent decree. [00:21:13] Speaker 07: They want the consent decree set aside. [00:21:15] Speaker 07: They're the only one asking for that relief. [00:21:16] Speaker 07: So at a minimum in their town of Chester, they have to show standing at that point. [00:21:21] Speaker 07: And we're past that point now when they can't show standing because there's no injury from the consent decree. [00:21:27] Speaker 07: As to the procedural right issue, they cite to 6912A, and that just does not apply to this first initial determination of review and then potential revision. [00:21:40] Speaker 07: 6912A says, quote, prescribe, the administrator is authorized to prescribe in consultation with federal, state, and regional authorities such regulations as are necessary to carry out his functions under this chapter. [00:21:53] Speaker 07: The issue here is under B of that section, which provides that the chapter shall be reviewed and, where necessary, revised not less frequently than every three years. [00:22:05] Speaker 07: A1 does not require EPA to in the initial step of deciding whether to even go forward with a proposed revision to consult with the state of North Dakota or anyone else. [00:22:16] Speaker 07: And I think that the more central point is the court doesn't have to figure out exactly what A1 and B means because the consent decree doesn't change the terms of A1 or B in any event. [00:22:26] Speaker 07: There's nothing in the consent decree that rewrites those terms. [00:22:30] Speaker 07: The fact that [00:22:31] Speaker 07: A1 and B are not set forth in the decree does not mean that the problematic omission. [00:22:36] Speaker 07: It just means the statute still applies as drafted. [00:22:40] Speaker 07: EPA, as the panel pointed out, if it fumbles this process and makes an error, and then there's eventually a final action that injures North Dakota, North Dakota can surely bring that claim, [00:22:53] Speaker 06: But at this point, there's no... So everything, let me just make sure I'm clear on this, everything North Dakota wants in terms of process from here forward under the statute, they're still entitled to notwithstanding a consent decree, correct? [00:23:06] Speaker 07: The consent decree does not change any process right North Dakota may or may not have under the statute. [00:23:13] Speaker 07: So if North Dakota – if EPA – I think that was a yes. [00:23:17] Speaker 06: I'm just making sure. [00:23:18] Speaker 06: Yes. [00:23:18] Speaker 06: It's a yes. [00:23:19] Speaker 07: If EPA – I mean, there's two things that can happen here, or three, I guess. [00:23:23] Speaker 07: EPA can, one, by March 2019, decide not to issue any revisions. [00:23:29] Speaker 07: North Dakota's not going to be injured if the existing rules stay in place. [00:23:32] Speaker 07: North Dakota likes the existing rules, and the problem that they have with this is the potential for new rules that might resolve. [00:23:39] Speaker 07: If EPA decides to go forward with a notice of proposed rulemaking, EPA, at the end of that second process, which has to occur by 2021, could decide, again, no new rules, status quo. [00:23:49] Speaker 07: We're sticking with what we have. [00:23:50] Speaker 07: We've analyzed this. [00:23:52] Speaker 07: We've consulted with North Dakota. [00:23:54] Speaker 07: We've consulted with the other interested federal and regional authorities. [00:23:58] Speaker 07: And we're not going to change anything. [00:23:59] Speaker 07: Again, no injury to North Dakota. [00:24:01] Speaker 07: If, at that point, North Dakota, EPA issues new [00:24:06] Speaker 07: new regulations, North Dakota then will be in a position to challenge it, including an argument that there was a process or a consultation problem. [00:24:16] Speaker 07: But they can't do it now because we don't know what's gonna result. [00:24:19] Speaker 07: All that is way too contingent to provide article free standing. [00:24:22] Speaker 06: They mention that if there's a decision not to regulate, that has to be reduced to writing, and that's different. [00:24:29] Speaker 06: That's a result of the consent decree. [00:24:30] Speaker 06: Your response to that is, [00:24:34] Speaker 07: If EPA has to reach a decision under these provisions, it doesn't matter for any purpose whether EPA does it purely without writing any words down or writes words down. [00:24:45] Speaker 07: That doesn't change the legal impact of that determination. [00:24:50] Speaker 07: In any event, the determination here just to go forward with a potential rulemaking doesn't injure them. [00:24:55] Speaker 03: So they- Mr. Lerman, I took Mr. Sabie to be saying that there [00:25:00] Speaker 03: they have an entitlement to consult with EPA before EPA decides whether to revise the regulations or not in respect to the triennial deadline, which has now been reinforced by the consent decree. [00:25:21] Speaker 03: Is that wrong? [00:25:22] Speaker 03: Is that informal? [00:25:23] Speaker 03: Does the consent decree change that? [00:25:26] Speaker 07: I'll take the last question first. [00:25:28] Speaker 07: The consent decree doesn't change any of these obligations one way or another. [00:25:31] Speaker 07: So if it's right or wrong, that will have to be litigated when North Dakota can say, you didn't do the thing that we say is required, which would only be down the road when we have a final rule of some sort that actually interests them. [00:25:45] Speaker 07: I don't think it's right with respect to this phase that this initial consideration of whether to propose a rulemaking, neither the APA nor this provision of repress for 6912A1 says that EPA, when deciding whether to suggest or propose a potential rule, has to consult with these parties at that stage. [00:26:05] Speaker 07: It's rather what the statute provides is once it's proposed a rule and before it actually prescribes the regulation, [00:26:12] Speaker 07: then it has the duty to consult. [00:26:14] Speaker 07: But we're not at that stage yet. [00:26:16] Speaker 07: In any event, even if we were at that stage, they'd have to wait to be injured, and then they could sue and bring this issue. [00:26:23] Speaker 07: And finally, EPA doesn't shut the door to North Dakota or anyone else who wants to come to them during this review phase and say, we have relevant information. [00:26:33] Speaker 07: Here it is. [00:26:34] Speaker 07: Please consider it. [00:26:35] Speaker 07: EPA's not going to say, no, North Dakota, we're not talking to you, or no environmental integrity project, we're not talking to you, and we're not going to consider the information used. [00:26:44] Speaker 07: And EPA will talk to folks if they have information they want to bring to the agency. [00:26:50] Speaker 07: So we have about a minute left. [00:26:53] Speaker 07: Unless the court has any further questions, I think I've covered all my critical points. [00:26:58] Speaker 06: OK, thank you. [00:26:58] Speaker 07: Thank you. [00:27:14] Speaker 08: Morning. [00:27:16] Speaker 08: Adam Krohn for Plaintiffs Environmental Integrity Project et al. [00:27:20] Speaker 08: May it please the court. [00:27:23] Speaker 08: This case presents a question that the circuit has answered repeatedly in controlling precedent. [00:27:29] Speaker 08: Where a party claims injuries based on the possibility of adverse regulation, it cannot demonstrate article freestanding or legally protectable interest in a case that concerns only the timing and not the substance of agency rulemaking. [00:27:42] Speaker 08: While North Dakota advances a number of different theories to avoid this outcome, it can't get around the fact that each of its injuries is based on adverse regulation that may never come to pass and is not the subject of this case. [00:27:54] Speaker 03: Isn't it just the flip side of the injury to EIP? [00:27:57] Speaker 03: I mean, for constitutional purposes. [00:28:01] Speaker 03: They argue that to the extent that you're pushing for potential eventual regulation beneficial to your members' interests, that they're in a parallel situation on the other side of the same coin. [00:28:18] Speaker 08: Yes, Your Honor. [00:28:18] Speaker 08: So to answer that question, North Dakota cannot claim standing just because plaintiffs can claim standing. [00:28:25] Speaker 08: As this Court has stated, standing is not dispensed in gross. [00:28:29] Speaker 08: The parties, and this is because the parties themselves are different along with their injuries. [00:28:34] Speaker 08: While plaintiffs are actually injured now because of EPA's decades of inaction, North Dakota will be injured only if EPA actually promulgates more stringent regulations. [00:28:44] Speaker 08: And that will require at least like three different contingencies to occur. [00:28:48] Speaker 08: As counsel for North Dakota stated, it's possible, it's possibly that EPA actually will come around to promulgating these rules. [00:28:57] Speaker 08: And I'll also say that this circuit has addressed this exact scenario in Ray Idaho Conservation League. [00:29:03] Speaker 08: In that case, there were petitioners similarly situated to Environmental Integrity Project in which they had standings. [00:29:10] Speaker 08: Their injuries actually existed. [00:29:12] Speaker 08: By contrast, the industry groups did not, as they would be injured only if EPA ultimately adopted the rules in question. [00:29:19] Speaker 08: And then also say that there's a sort of sleight of hand going on in North Dakota comparing plaintiff's relief to North Dakota's injury, or to put it another way, plaintiff's regressibility to North Dakota's injury. [00:29:33] Speaker 08: And these are different elements. [00:29:34] Speaker 08: Plaintiff's injury is actual and concrete right now. [00:29:37] Speaker 08: As Lujan stated, an injury has to be concrete, particularized, and either actual or imminent. [00:29:43] Speaker 08: But with redressability, there's an inherent degree of contingency at issue. [00:29:49] Speaker 08: It doesn't have to be certain, but it can't be speculative. [00:29:53] Speaker 08: It has to be likely. [00:29:54] Speaker 08: And this court has also stated that the fact that the agency actor is the one causing the injury and the only one that can resolve that injury is enough for it to be likely. [00:30:04] Speaker 08: On the other hand, the possibility of future regulation is not enough for injury. [00:30:10] Speaker 08: So step back a bit. [00:30:12] Speaker 08: I will also say that the district court correct. [00:30:15] Speaker 08: Well, first, I want to say that plaintiffs have not conceded that North Dakota should have been allowed to intervene or that North Dakota had standing before the district court. [00:30:23] Speaker 08: That's incorrect, and that's not our position. [00:30:27] Speaker 08: But I will say that the district court correctly applied this circuit's controlling precedent in finding that North Dakota failed to demonstrate Article III standing. [00:30:35] Speaker 08: As this circuit stated in Defenders of Wildlife v. Purchaseppe and reaffirmed in several recent cases, Article 3 standing requires more than the possibility of adverse regulation. [00:30:44] Speaker 08: And in each of those cases over the last few years, the consent decrees were very similar to the consent decree in question. [00:30:50] Speaker 08: They required the agency to make certain determinations on a set timeline without dictating the substance. [00:30:57] Speaker 08: And the consent decree here is no different. [00:30:59] Speaker 08: It has binding deadlines, but it doesn't limit EPA's discretion not to conduct any rulemaking at all, not to promulgate a final rule, or as to the substance of the final rule. [00:31:09] Speaker 08: By contrast, each of North Dakota's injuries, with respect to changing its solid waste program and as to regulatory costs, is premised on EPA actually getting to that adverse regulation. [00:31:22] Speaker 08: As this circuit said in InRe Idaho Conservation League, consent decree merely prescribes a date by which regulation could occur. [00:31:30] Speaker 08: And nothing about this consent decree makes it any more likely that North Dakota will actually be subject to regulation, much less suffer concrete harm to its interests. [00:31:38] Speaker 03: When we're considering standing, do we look at the time at which North Dakota initially sought to intervene or at its interest now in challenging the decree? [00:31:51] Speaker 08: I would say, Your Honor, that for the purposes right now, we're looking at North Dakota standing at this moment. [00:31:58] Speaker 08: A party has to maintain standing throughout the course of litigation. [00:32:01] Speaker 08: So with respect to Town of Chester, for example. [00:32:05] Speaker 03: But then Town of Chester would apply and say they need to show standing independently because their interests have now diverged from EPA's. [00:32:17] Speaker 08: That's correct, Your Honor. [00:32:18] Speaker 03: And maybe they have an interest to the very extent that they have an injury to the very extent that EPA is not taking the position that they wish it were taking. [00:32:27] Speaker 08: Well, the fact, Your Honor, that the relief North Dakota is seeking has diverged from EPA does not change whether or not it has an injury. [00:32:36] Speaker 08: That's the same. [00:32:38] Speaker 08: So whether or not North Dakota has standing [00:32:41] Speaker 08: It's the same – the consent decree mirrors the relief the plaintiffs sought. [00:32:46] Speaker 08: And so the standing – the injury is the same, whether or not the relief is different. [00:32:51] Speaker 08: It's just what's different under town of Tester, taking it in the best light possible for North Dakota, is that the question of whether North Dakota actually had to demonstrate standing for the purposes of intervention. [00:33:01] Speaker 08: And I will also say that [00:33:03] Speaker 08: The town of Chester does not change that North Dakota failed to demonstrate a legally protectable interest under rule 24A2. [00:33:09] Speaker 08: And as this court held in in Ray Idaho Conservation League, that basically uses the same reasoning of defenders of wildlife as to injuries in a plaza to legally protectable interests. [00:33:20] Speaker 08: Okay. [00:33:20] Speaker 08: Thank you very much. [00:33:21] Speaker 08: Thank you. [00:33:30] Speaker 05: Paul Sebe for the state of North Dakota on rebuttal. [00:33:34] Speaker 05: Appellee's attempts to evade the effect of the Town of Chester case are not persuasive. [00:33:39] Speaker 05: At the time, North Dakota filed its motion to intervene, and the Court denied that motion. [00:33:44] Speaker 05: The interests of the United States and North Dakota were aligned. [00:33:48] Speaker 05: If the consent decree doesn't change the statutory obligations of EPA and its relations to its Congress congressionally authorized partners, the states, then why does the EPA and the Citizens Group object to North Dakota's participation in the resolution of an alleged failure to perform a non-discretionary duty? [00:34:08] Speaker 03: Mr. [00:34:09] Speaker 03: C.B., if North Dakota had a right to intervene, then so too would every other state. [00:34:17] Speaker 03: in the union, no? [00:34:21] Speaker 03: And indeed, so would industries regulated that deal with subtitled the solid waste? [00:34:29] Speaker 05: No. [00:34:29] Speaker 05: I'm glad you asked that question because it's the heart of our point here. [00:34:34] Speaker 05: This case is fundamentally different than Idaho Conservation League and the Purchaseppe case, which we are not asking the court to disturb. [00:34:42] Speaker 03: Because states are different. [00:34:43] Speaker 05: Because states are different, the Supreme Court has very clearly said in Massachusetts versus EPA, courts should afford states special solicitude. [00:34:52] Speaker 05: And while that has not been elaborated on extensively by the Supreme Court, it must mean, in this case, because this statute gives the state a very special and primary role in implementing this statute, that since the mid-70s, Congress said we're going to give states the primacy in administering solid waste programs, not hazardous waste, that was very deliberately given that role to the EPA. [00:35:16] Speaker 05: But solid waste. [00:35:17] Speaker 02: Right. [00:35:18] Speaker 05: And so this is a very special and unique circumstance. [00:35:21] Speaker 05: We are not asking the court to disturb your line of cases with respect to industry trade associations at all. [00:35:27] Speaker 01: We hear you. [00:35:30] Speaker 05: This case is not about dates. [00:35:33] Speaker 05: It's about a process and an incomplete one at that. [00:35:35] Speaker 05: And the omission and the incompletion is what harms us. [00:35:39] Speaker 05: We ask the court to return this case to the district court, overturn the consent decree, [00:35:44] Speaker 05: direct the district court to administer that proceeding, and then go from there. [00:35:48] Speaker 05: We have a pending motion to dismiss. [00:35:50] Speaker 05: We'd like the district court to entertain. [00:35:52] Speaker 05: Pending that not being granted, we'd like to have a role in making sure that any consent decree adequately and fairly articulates the process established by Congress. [00:36:03] Speaker 05: Thank you. [00:36:03] Speaker 05: Thank you. [00:36:04] Speaker 05: Thank you to all counsel. [00:36:05] Speaker 05: The case is submitted.