[00:00:02] Speaker 00: Case number 16-1097, Sierra Club et al. [00:00:06] Speaker 00: Petitioners versus the Environmental Protection Agency et al. [00:00:11] Speaker 00: Robert E. Uke for the petitioners. [00:00:14] Speaker 00: Megan E. Greenfield for the respondents. [00:00:51] Speaker 02: Good morning. [00:00:51] Speaker 02: Good morning, Your Honors. [00:00:54] Speaker 02: My name is Robert Yonkey. [00:00:55] Speaker 02: I'm here representing the petitioners, the Sierra Club, Citizens for Greater Denver, Alleria Swansea Community Association, and the Cross-Community Coalition. [00:01:09] Speaker 02: We're here challenging all three of EPI's attempts to amend and supersede the 2010 procedures. [00:01:18] Speaker 02: that were promulgated for determining the design value of a project. [00:01:24] Speaker 02: The design value is the statistic that EPA uses to determine whether or not the resulting air quality will comply with or not comply with an ambient standard. [00:01:39] Speaker 02: The statute defines EPA's duty as promulgating criteria and procedures that, quote, demonstrate and assure conformity, unquote. [00:01:53] Speaker 02: The assurance of conformity, it was established by the 2010 procedures because it did not allow [00:02:05] Speaker 02: violations of the ambient standards when the emissions from a project were combined with the background air quality. [00:02:14] Speaker 04: You're getting the substance, but there are jurisdictional issues which have to be surmounted before we reach the substance. [00:02:30] Speaker 02: Well, the jurisdictional issues. [00:02:32] Speaker 04: There are three that come immediately to mind. [00:02:35] Speaker 04: One is, is there a binding rule that's been adopted? [00:02:39] Speaker 04: Second, there's the question of whether, with the particular projects that you're raising, your arguments could have any impact on the outcome. [00:02:55] Speaker 04: I guess those two, anyway. [00:02:58] Speaker 04: Yes, Your Honor. [00:02:59] Speaker 04: With different answers for PM 2.5 or PM 10. [00:03:05] Speaker 02: Well, first of all, with regard to the question of whether or not the EPA's decision will have any impact, it turns on whether or not the guidance is binding. [00:03:17] Speaker 04: I think those two questions that you've... Well, that's necessary and not sufficient. [00:03:27] Speaker 04: If, for example, a particular project is in an area that is in clear attainment and not in maintenance either, then the whole question just doesn't arise, right? [00:03:45] Speaker 02: Yes, conformity does not apply in areas that are in attainment. [00:03:49] Speaker 02: But these projects, all of the projects here are in areas, either are in non-attainment or are maintenance areas, so that conformity does apply as a project. [00:04:00] Speaker 04: How do you get that? [00:04:01] Speaker 04: I mean, the record says that Denver is in attainment, as I'm talking about, by Saturday, for the various PM2.5 standards. [00:04:17] Speaker 02: Yes, it's a maintenance area. [00:04:19] Speaker 02: It was non-attainment during the 1980s and 90s. [00:04:22] Speaker 02: It was re-designated by EPA in 2002 as an attainment area. [00:04:30] Speaker 04: That was preserved by the draft PM-10. [00:04:33] Speaker 02: PM-10, yes. [00:04:35] Speaker 04: PM-10. [00:04:36] Speaker 04: Why not PM-2.5? [00:04:39] Speaker 02: PM2.5 is an issue in Los Angeles with regard to the I-710 project. [00:04:45] Speaker 02: It's not one of the pollutants that's involved in the I-70 conformity determination. [00:04:51] Speaker 04: I'm sorry, are you on 2.5 or 10 now? [00:04:57] Speaker 04: When you turn to LA. [00:05:00] Speaker 02: For the pollutant PM10, the two projects that engage that pollutant are in Denver and in Arizona. [00:05:08] Speaker 02: That's the I-70 expansion in Denver and the South Mountain Freeway in Phoenix. [00:05:15] Speaker 02: For PM2.5, the project that involves PM2.5 is the I-710 expansion in Los Angeles. [00:05:25] Speaker 02: Los Angeles is currently nonattainment for PM2.5. [00:05:30] Speaker 04: Wasn't the hotspot analysis for i7-10 done in 2012, which is before the procedure you're challenging was no more than a meme in someone's eye? [00:05:44] Speaker 02: No, Your Honor. [00:05:47] Speaker 02: First of all, keep in mind that the procedure that we're trying to defend here was promulgated in 2010, and EPA has taken some actions to try to... Well before June 2012. [00:06:00] Speaker 02: Yes, and those are the procedures that we believe still should apply, because EPA has not lawfully amended those procedures. [00:06:09] Speaker 02: Now, with regard to... No, the I-710 decision, Your Honor, is yet to be made. [00:06:23] Speaker 02: What we cited in the briefs... [00:06:28] Speaker 02: was from a draft EIS. [00:06:32] Speaker 02: Just in July of this year, a supplemental draft EIS is now published for that project, which includes a statement that the conformity determination for that project will be made later. [00:06:47] Speaker 02: It has not yet been made, but that [00:06:53] Speaker 02: supplemental draft EIS states that it will be made based upon EPA's 2015 revised or amended procedure. [00:07:03] Speaker 04: Does it say anything to indicate that the gap between 2010 and 2025 standards will impact that outcome? [00:07:15] Speaker 02: It says that it has not yet made a determination. [00:07:21] Speaker 04: Right, I understand that. [00:07:24] Speaker 04: These agencies do a lot of talk about what they see as the issues. [00:07:31] Speaker 04: Is there any clue that the difference between 2010 and 2015 is pivotal in that case? [00:07:40] Speaker 02: It's not clear at this point what the implications will be of the change. [00:07:47] Speaker 02: All they have stated is that they will apply the revised procedure. [00:07:53] Speaker 02: Right. [00:07:54] Speaker 04: But you have a burden of showing that it makes a difference. [00:07:57] Speaker 02: Well, with regard to PM10, we clearly have done that with regard to both the I-70 and the southbound freeway projects. [00:08:06] Speaker 04: With PM10, you do interfere with the difficulty of the date. [00:08:09] Speaker 04: The guidance seems really very open-ended there. [00:08:14] Speaker 04: If some better system comes along, [00:08:17] Speaker 02: Well, the guidance with regard to the conformity determination based upon the design value [00:08:31] Speaker 02: does not have that kind of flexibility built into it. [00:08:36] Speaker 04: That was... What do you mean? [00:08:40] Speaker 04: In terms of which way of calculating the design value, they set forth an approach and then they say, you come along with something better, it should be applied. [00:08:57] Speaker 04: I'm paraphrasing, of course. [00:08:58] Speaker 02: Well, I would contest that characterization of it, Your Honor. [00:09:08] Speaker 02: In EPA's characterization of the elements of a hotspot analysis, they describe them as necessary. [00:09:15] Speaker 02: EPA says, quote, quantitative PM hotspot analyses need to be completed using the refined analysis procedures described in this guidance. [00:09:27] Speaker 04: I'm pointing to the passage of page 38 of the Joint Appendix. [00:09:31] Speaker 04: More advanced methods are being considered on a case-by-case basis by the EPA Regional Office, OTOQ, and OAQPS. [00:09:43] Speaker 04: Any alternative methods for calculating Pino 10 design values must be evaluated and chosen through the process. [00:09:50] Speaker 04: The process is established by each area's interagency consultation procedures. [00:09:59] Speaker 04: I mean, I guess you could get more open-ended than that by just saying, ah, do what you think is best, and don't worry about what we've said here at all. [00:10:11] Speaker 04: But this is pretty close. [00:10:17] Speaker 04: The flexibility that... Now, admittedly, this prefers only to PM10, but it does prefer PM10. [00:10:29] Speaker 02: The flexibility that EPA has defined for PM10 is limited to some very narrow circumstances involving the way in which the data are evaluated. [00:10:41] Speaker 03: Where do we get that from? [00:10:43] Speaker 03: We don't get that from this language. [00:10:44] Speaker 03: Are you saying you get that understanding from the way EPA actually operates? [00:10:50] Speaker 03: Because this language sounds non-binding. [00:10:53] Speaker 03: It sounds more than precatory, but maybe not. [00:11:03] Speaker 03: The text in – if we read this language from JA38, if we understood that to be EPA giving nonbinding guidance, if that – let's – just hypothetically, let's imagine that's how we read this. [00:11:23] Speaker 03: What would be your response to that? [00:11:34] Speaker 02: What EPA has done is to prescribe the data that must be used, which is, in 2010, that they must use the highest background air quality value. [00:11:47] Speaker 02: And what the flexibility that EPA has described, which we discussed in the reply brief, says that they can look at. [00:11:56] Speaker 03: I guess I'm asking a hypothetical. [00:11:57] Speaker 03: Let's imagine we disagreed with your reading of this language, and we came to the conclusion [00:12:03] Speaker 03: that this language suggests that EPA was getting a great deal of discretion and was merely getting guidance and it was not binding anyway. [00:12:13] Speaker 03: Let's just imagine for the sake of – I'm not saying that's where we are, but I'm just trying to understand your argument. [00:12:19] Speaker 03: If that's the view we had, would you have a response to that to argue that no, in fact, the PM10 guidance was actually binding? [00:12:29] Speaker 03: How would you make that argument? [00:12:32] Speaker 03: if we disagreed with you on the reading of JA38? [00:12:36] Speaker 03: Is there another argument? [00:12:37] Speaker 03: Maybe there's not. [00:12:38] Speaker 03: Maybe that would be it. [00:12:40] Speaker 02: Well, I think the key issue here, Your Honor, is that the agency has not laid out alternative data that can be used. [00:12:52] Speaker 02: They've said you must use the highest background data. [00:12:58] Speaker 03: But again, we're quarreling over [00:13:00] Speaker 03: My question assumes that we disagree with your reading event, so let's go into the reading event. [00:13:04] Speaker 03: Any alternative methods, it clearly says there you can use alternative methods. [00:13:09] Speaker 03: You don't have to use these. [00:13:12] Speaker 03: We prefer that you, I presume they're saying we prefer that you do, but if you come up, you can come up with your own methods and we'll look at those. [00:13:20] Speaker 03: Is that, maybe I'm misreading it. [00:13:22] Speaker 03: Isn't that, that's how I read any alternative methods for calculating design value. [00:13:27] Speaker 03: What is wrong with my reading? [00:13:37] Speaker 02: see if I can find the text to record it. [00:13:41] Speaker 03: I'm looking at J 38 where Judge Williams was reading from. [00:13:58] Speaker 02: First of all, [00:14:00] Speaker 02: I think we need to look at this in the context of the case law where this court has held in a similar circumstance, particularly in the General Electric case, where EPA did identify some alternative procedures that were available to the primary procedure prescribed that the court held that where the agency had made a [00:14:27] Speaker 02: an established procedure and acknowledge that there might be some exceptions to that, that that circumstance in and of itself is not enough to take it out of being a prescriptive [00:14:42] Speaker 04: document that triggered the obligation for notice and comment. [00:15:07] Speaker 04: It seems to me more that has extraordinarily open-ended quality to me. [00:15:17] Speaker 02: But that's not what EPA has done here. [00:15:19] Speaker 04: What they've done is to fundamentally change the- What is it that contradicts what I would say is the sort of ordinary reading of that passage? [00:15:30] Speaker 02: But it's not that they've acknowledged [00:15:33] Speaker 02: a specific alternative in these cases. [00:15:38] Speaker 04: Although, actually, in the background, there is a specific alternative. [00:15:40] Speaker 04: We won't go into that. [00:15:42] Speaker 04: But this seems to be forward looking and open to finding some better ways. [00:15:54] Speaker 02: But what they've done here is to acknowledge a different procedure than the one that was promulgated in 2010. [00:16:02] Speaker 02: And that this procedure has the consequence of allowing projects that will actually contribute to violations of the Indian standard. [00:16:14] Speaker 04: Well, assuming you're right that the 2010 procedure is clearly correct. [00:16:20] Speaker 04: But we don't get to that if it's not binding. [00:16:30] Speaker 04: Well, arguably, [00:16:43] Speaker 02: It's binding because the agency said this is the procedure you will follow unless you submit an alternative that we will review and determine is adequate. [00:16:55] Speaker 02: That's what this process lays out. [00:16:57] Speaker 04: The language there is remarkably broad. [00:17:01] Speaker 04: It must be evaluated and chosen through the process established by each area's interagency consultation procedures. [00:17:08] Speaker 04: That's what it sounds like. [00:17:10] Speaker 04: This procedure may apparently vary from area to area, although under a different set of regs, and all these agencies adopt something new and better, fine. [00:17:29] Speaker 04: Even if it were just exclusively the EPA that had the final deciding voice, the openness would be there. [00:17:39] Speaker 02: Well, I think in many respects this is similar to the process that EPA established in the McLough case where you wrote the opinion, where EPA said that we will apply this model generally to make a determination for leachate, but that we will not consider it binding. [00:18:01] Speaker 02: You determined that it was sufficiently prescriptive. [00:18:05] Speaker 04: I went back to my own opinion there naturally, and I thought that the provision for an exception was quite narrowly printed. [00:18:16] Speaker 04: It wasn't just to come up with something better if you can. [00:18:21] Speaker 04: I suggested that it would be an exception rather than an improvement [00:18:31] Speaker 02: Well, I think it is analogous to the extent that the agency tried to reserve the option of giving some weight to the modeling. [00:18:42] Speaker 02: And your determination was that it was sufficiently prescriptive as a starting point to trigger the APA obligation for rulemaking. [00:18:52] Speaker 02: And I think that's the same situation that we have here, that APA has to sign [00:18:57] Speaker 02: described a prescriptive procedure. [00:19:00] Speaker 02: And while it does acknowledge there is an opportunity for someone to propose an alternative, until EPA reviews that and accept it, the prescriptive procedure applies. [00:19:12] Speaker 02: And that's what makes it binding for purposes of triggering APA review, both from the initial standpoint of adopting the 2010 rules, which [00:19:23] Speaker 02: were required under the ruling in Appalachian power, because it fundamentally changed the legal regime that governed conformity determinations. [00:19:34] Speaker 02: So having gone through notice and comment to establish it, they should, under Perez, go through notice and comment to change it. [00:19:43] Speaker 02: I'd like to reserve the remainder of my time. [00:19:45] Speaker 00: All right. [00:19:46] Speaker 00: Thank you. [00:19:47] Speaker 00: Miss Greenfield? [00:19:59] Speaker 01: May it please the court. [00:20:00] Speaker 01: My name is Megan Greenfield and I'm here on behalf of EPA. [00:20:04] Speaker 01: With me at council's table is Susmita Dube from the Office of General Counsel. [00:20:09] Speaker 01: This court should dismiss the petition for review because subject matter jurisdiction is lacking for two related reasons. [00:20:16] Speaker 01: First, the 2015 hotspot guidance is not final action of the administrator, as is required for jurisdiction under Section 307 of the Clean Air Act. [00:20:26] Speaker 01: The guidance is not legally binding on EPA, [00:20:29] Speaker 01: or on the agencies that apply it. [00:20:31] Speaker 01: And second, because the guidance is not legally binding, petitioners lack standing. [00:20:37] Speaker 01: Their injuries are not redressable. [00:20:39] Speaker 01: That is, even if this court were to vacate the guidance, agencies could rely on the same. [00:20:44] Speaker 04: I'm sorry. [00:20:44] Speaker 04: As you framed that, it seems to be one reason. [00:20:47] Speaker 04: If it's not binding, they don't have standing, and it's unreviewable. [00:20:53] Speaker 04: But that's one thing. [00:20:53] Speaker 04: That's a proposition that's not binding. [00:20:57] Speaker 04: I thought you were going to have a second. [00:20:59] Speaker 04: reason for black jurisdiction. [00:21:04] Speaker 01: Judge Williams, you're correct. [00:21:05] Speaker 01: It collapses into a single question of the legally binding effects of the guidance. [00:21:10] Speaker 01: So if the guidance is not legally binding, [00:21:14] Speaker 04: I thought large portions of your brief were directed at the proposition that because of the facts in these particular highway programs, even if it were binding, the pedestrians would not have standing. [00:21:30] Speaker 01: So you're right that in our opening brief we made an argument on injury related to the I-70 project. [00:21:39] Speaker 01: And there we said that the injury was speculative because no final decision had been made for that project yet. [00:21:46] Speaker 01: We can see now that a decision was made, and we apprised the court of that in our 28-J letters. [00:21:52] Speaker 01: So to the extent the question there was whether or not the injury was speculative, we can see that there has been harm, though we maintain that the injury is not redressable because the guidance is not binding. [00:22:06] Speaker 04: What about your argument on I-710? [00:22:10] Speaker 01: So on I-710, that's true. [00:22:12] Speaker 01: There has been no decision made for that case yet. [00:22:16] Speaker 01: So that's correct. [00:22:16] Speaker 04: Well, not only that, but the draft EIS says no problem under the 2010 guidance. [00:22:26] Speaker 01: Right. [00:22:26] Speaker 01: So that project is still in development. [00:22:30] Speaker 01: and no conformity determination has been finalized. [00:22:33] Speaker 01: So petitioner. [00:22:34] Speaker 04: Yeah, I'm not sure why he stressed so much the absence of a conformity determination. [00:22:40] Speaker 04: I would think the issue is which, if we can see which way the conformity determination is gonna come out, the question would be whether that outcome is affected by this guidance. [00:22:54] Speaker 01: I agree that in a straightforward project that would be the case, but here with 710, [00:22:59] Speaker 01: there is a lot of movement in the interagency consultation process as those conformity determinations are being made, so we can't say definitively one way or another what will happen with that project and what the agencies will rely on. [00:23:14] Speaker 04: You may not know it, but that gives you an argument because it's their burden to show understanding. [00:23:19] Speaker 01: Yes, no, that's correct. [00:23:21] Speaker 01: Our point is that as to the PM10 standard, we can see that there's been an injury with regards to the I-70 project in Colorado. [00:23:30] Speaker 01: But our fundamental argument here is that because the guidance has no legally binding consequences, their jurisdiction is lacking. [00:23:39] Speaker 04: Where do you get that in the language relating to 2.5? [00:23:44] Speaker 01: So I agree with you that on page [00:23:49] Speaker 01: 38 of the Joint Appendix that the language describing the flexibility of the interagency review process that relates to PM 10. [00:24:00] Speaker 01: But you'll also see earlier in the guidance on pages five to six of the Joint Appendix in page 10, it's clear that the guidance is not intended to impose new requirements [00:24:11] Speaker 01: and that the agencies have discretion to vary from the suggested approach. [00:24:16] Speaker 04: So where is the language that covers the entire guidance? [00:24:21] Speaker 01: So on pages five to six of the joint appendix, it makes clear that the guidance is not. [00:24:26] Speaker 04: Five is just part of the table of contents. [00:24:35] Speaker 01: Page 10 makes clear that it's not intended to impose new requirements. [00:24:41] Speaker 04: And I would also point to... Well, you know, this is the conclusory statement. [00:24:51] Speaker 04: CAA and the regulations contain legally binding requirements. [00:24:56] Speaker 04: This guidance is not a substitute for those, which of course is true. [00:25:00] Speaker 04: And then there's the conclusive declaration. [00:25:03] Speaker 04: It's not a regulation in itself. [00:25:10] Speaker 04: But what is the, another sort of sound sort of boilerplate-ish EPA retains the discretion without processes on a case-by-case basis to make it. [00:25:22] Speaker 04: It doesn't have the sort of broad hospitable quality of the passage relating to PM10. [00:25:32] Speaker 01: You're right that [00:25:34] Speaker 01: sentence giving the broad discretion falls under the PM 10 section. [00:25:39] Speaker 01: But the regulations themselves prescribe that and that's 40 CFR 93 105 prescribed that the models, methodologies and assumptions applied to the conformity determinations for both PM 2.5 and PM 10 that those are discussed during the agency interagency review process. [00:26:04] Speaker 01: And the guidance refers several points to that regulation, showing that that process is supposed to have flexibility. [00:26:14] Speaker 01: And in practice, EPA has flexibly applied the guidance. [00:26:18] Speaker 04: I'm sorry, so the references in the guidance to regulations and the regulations themselves, you argue, confer the necessary flexibility. [00:26:32] Speaker 04: Yes. [00:26:34] Speaker 04: So where in the joint appendix do we find the key passages in the regulations? [00:26:41] Speaker 01: So the citation I was referring to is 40 CFR 93 105 C 1 I. [00:27:02] Speaker 01: And I think it's important. [00:27:05] Speaker 01: Yes, yes, it's in the briefs. [00:27:11] Speaker 01: It's discussed on pages 37 to 38 of the briefs, the role of the interagency review process. [00:27:19] Speaker 01: And I should note that EPA has [00:27:22] Speaker 01: applied the guidance as binding or as non-binding in practice with regards to the South Mountain Freeway Project. [00:27:29] Speaker 01: Now there, the agency that was conducting the conformity analysis came to APA. [00:27:35] Speaker 01: and said we are having trouble applying the formula in the guidance. [00:27:39] Speaker 01: EPA took another look at the guidance and realized that a different approach would better align with the NAICS and suggested. [00:27:48] Speaker 04: This is the, you're talking about the switch from 2010 to the formula which is now in the 2015 guidance. [00:27:58] Speaker 01: Right, the methodology that EPA suggested to South Mountain Freeway. [00:28:02] Speaker 01: is the same methodology that has been suggested in the 2015 guidance. [00:28:07] Speaker 01: But importantly, EPA did that before the new guidance was issued. [00:28:12] Speaker 01: And so it really demonstrates the flexibility of that interagency process. [00:28:20] Speaker 01: And that's important here for two reasons. [00:28:23] Speaker 01: One is the on-the-ground considerations that make a single formula difficult to prescribe across the board. [00:28:31] Speaker 01: Because with each of these projects, we have variables like the background levels of the pollutants, meteorological conditions, and the project itself. [00:28:40] Speaker 01: And so having flexibility in the interagency review process allows both the agencies that are doing the conformity determination and also the public to have input on which [00:28:52] Speaker 01: analysis makes the most sense for that project while still complying with the regulations in the statute itself. [00:29:00] Speaker 01: And that works both ways because, as we were discussing earlier with the 710, the drafts of the conformity analysis are made open to the public for public comment. [00:29:11] Speaker 01: And at that juncture, EPA and others, including Sierra Club, can describe why it feels that the analysis is incorrect or what can be improved. [00:29:26] Speaker 01: So that inter-agency consultation process is important. [00:29:31] Speaker 01: And at the end of that process, a final conformity determination is made. [00:29:36] Speaker 01: And at that juncture, once the record has been developed, that determination can be challenged in federal district court. [00:29:44] Speaker 01: So just because the guidance is not reviewable here does not mean that it's unreviewable. [00:29:50] Speaker 01: Specifically, Sierra Club has challenged the conformity determination for the I-70 project in Colorado in District Court there. [00:30:00] Speaker 01: It argues in that case that the conformity determination does not comply with the Clean Air Act. [00:30:07] Speaker 01: It has likewise challenged the record of decision for the South Mountain Freeway Project in District Court in Arizona. [00:30:14] Speaker 01: And while they did not argue in that case that the conformity determination for the project was contrary to law, they could have. [00:30:26] Speaker 01: No. [00:30:27] Speaker 04: I'm not sure that that, I mean, if under normal circumstances they have standing here, I'm not sure that they'd lose it because they could have challenged it in another context. [00:30:42] Speaker 01: No, my point was that it is reviewable elsewhere. [00:30:45] Speaker 01: That... Yeah. [00:30:47] Speaker 04: Oh, it's just that we don't have to feel worried about the issue of going free of judicial scrutiny. [00:30:57] Speaker 01: Yes. [00:30:58] Speaker 01: Yes, exactly. [00:31:00] Speaker 01: Now, petitioner raises several issues that they say show that the guidance is binding. [00:31:07] Speaker 01: One of them [00:31:08] Speaker 01: is the regulation that provided that a qualitative analysis was permissible until the quantitative guidance was issued. [00:31:20] Speaker 01: And that once the quantitative guidance was issued, that a quantitative analysis would be required. [00:31:27] Speaker 01: Now, that does not mean that the quantitative guidance itself has legally binding effect. [00:31:33] Speaker 01: its issuance served only as the trigger for a requirement that was provided by regulation. [00:31:40] Speaker 01: And that regulation was not challenged at the time it was promulgated. [00:31:46] Speaker 01: Petitioners also argue that the notice and comment process was followed in the issuance of the 2010 guidance. [00:31:55] Speaker 01: That's not correct. [00:31:57] Speaker 01: that a draft of the 2010 guidance was made available for public comment, but it was done so only pursuant to a settlement agreement with Sierra Club and EPA and several other agencies. [00:32:11] Speaker 01: And it was clear in the Federal Register notice seeking comment in the draft guidance and in the final guidance that it was not intended as a regulation and that that same process would not be adhered to in the future. [00:32:23] Speaker 03: You know, apart from the boilerplate language that you referred to before, and I think it's pretty clear we've looked past boilerplate before. [00:32:32] Speaker 03: The agency can't get out of the inquiry just by saying this is non-binding. [00:32:38] Speaker 03: When you look at JA-33, and that's describing the design value for the project in Los Angeles, and for the 2.5, right? [00:32:47] Speaker 03: Right. [00:32:48] Speaker 03: That language looks very different to me than does the language [00:32:53] Speaker 03: that Judge Williams referred to and had us look at in JA 38 for PM 10. [00:33:00] Speaker 03: Whereas the PM 10 language is rather expansive and seems to allow many alternatives, invites them. [00:33:08] Speaker 03: I don't see that in the language for PM 2.5. [00:33:14] Speaker 01: You're correct that that same expansive sentence isn't included under PM 2.5, but the suggested methodology is also labeled as a suggested approach. [00:33:28] Speaker 03: Well, it says you have two options, right? [00:33:32] Speaker 03: It seems more limiting. [00:33:35] Speaker 01: I can see that the same expansive language that refers to the interagency consultation process is included under that section, but there are other aspects of the guidance which I discussed in my brief that make clear that this is only intended as a suggested approach and that [00:33:52] Speaker 03: Are there instances in which the regulated entities have followed a different approach and it's been accepted by EPA? [00:33:59] Speaker 01: So the example of that is with the South Mountain Freeway project. [00:34:03] Speaker 01: So the guidance in effect at the time required the design value to be calculated by looking at the highest or worst day of pollution for the background level and adding it with a lower level for the project contribution. [00:34:18] Speaker 01: And there, when the agency reached out to EPA and said, [00:34:22] Speaker 01: Our highest background level is violative of the NACS. [00:34:25] Speaker 01: It violates the NACS. [00:34:26] Speaker 01: So under no circumstances could we construct this project. [00:34:29] Speaker 01: Even if the project contribution was zero, it would still fail the suggested approach. [00:34:34] Speaker 01: EPA then worked with the agency because the agency was right that [00:34:41] Speaker 01: It didn't align perfectly with IMAX and suggested a different approach. [00:34:46] Speaker 01: So there is give and take there. [00:34:48] Speaker 01: And importantly, EPA can't enforce the approaches suggested in the guidance. [00:34:55] Speaker 01: EPA plays an assistive role in the conformity analysis process, but it is not [00:35:01] Speaker 01: as in Appalachian Power where EPA is in the field enforcing permit requirements. [00:35:06] Speaker 03: It doesn't have to be enforced. [00:35:07] Speaker 03: But if EPA says conformity hasn't been achieved, they're out, right? [00:35:12] Speaker 01: No, that's actually not how it works in practice. [00:35:14] Speaker 01: So it's the Department of Transportation that makes the final determination. [00:35:21] Speaker 01: is consulted in that process, but it is a purely consultative role. [00:35:25] Speaker 01: So EPA can say, no, I don't think that this conformity analysis is proper. [00:35:30] Speaker 01: I think you fail. [00:35:31] Speaker 01: And they can still, the Department of Transportation could still find that the project conforms. [00:35:37] Speaker 03: Does that happen? [00:35:37] Speaker 03: Has that happened before? [00:35:38] Speaker 01: That hasn't functionally happened, but it is possible. [00:35:42] Speaker 01: What did you say? [00:35:43] Speaker 01: It has not happened where EPA, but it is true that EPA doesn't, [00:35:48] Speaker 01: For example, in the I-70 project, EPA did not review each aspect of the conformity determination for that project before the determination was made. [00:35:58] Speaker 01: So it doesn't even functionally work as seek approval first. [00:36:04] Speaker 04: What you say sounds as if EPA speaks, people listen. [00:36:08] Speaker 01: What I'm trying to make clear is that in the I-70 project, EPA did not review [00:36:14] Speaker 01: all of the data underlined the conformity. [00:36:17] Speaker 03: But that's different than. [00:36:18] Speaker 01: Or did they review, they didn't review each aspect of it. [00:36:21] Speaker 03: Yeah, but when they do review and speak. [00:36:25] Speaker 03: Do you know of any instances where the Department of Transportation or someone else has said, no, we're going a different direction? [00:36:32] Speaker 01: I don't know of any instances where they did it over EPA's objection, but it's possible and permitted by the statute, and EPA wouldn't have it enforced. [00:36:40] Speaker 03: I hope I'm not misstating the petitioner's argument here, but I think from the viewpoint of the regulated entity, I think they're saying, well, EPA [00:36:48] Speaker 03: Tells us uses some guidance to do it this way they say you can we have some other alternatives to it, but [00:36:57] Speaker 03: you can't find any instance where another alternative was accepted, they carry a pretty big stick here, so we better do what EPA's saying, so therefore, functionally, it works more than your guidance. [00:37:09] Speaker 01: Look, two things here. [00:37:10] Speaker 01: First, EPA doesn't have a stick at all. [00:37:12] Speaker 01: It just has a consultative role. [00:37:13] Speaker 01: It has no enforcement power. [00:37:15] Speaker 01: No, but the outweigh this quibble. [00:37:17] Speaker 03: Yeah, I mean, if EPA says, [00:37:20] Speaker 03: You're not conforming. [00:37:22] Speaker 03: That's going to end up for practical purposes. [00:37:25] Speaker 03: You said theoretically, Department of Transportation would say, we hear from the EPA, we just disagree, we're going to go forward. [00:37:31] Speaker 03: But it doesn't work that way in the real world, does it? [00:37:34] Speaker 04: What if DOT said, sorry, EPA, you have a voice no more than this. [00:37:42] Speaker 04: We're going ahead. [00:37:44] Speaker 04: And the litigation. [00:37:46] Speaker 04: Would DOT's conclusion be upheld? [00:37:51] Speaker 01: So DOT would have to base its conclusion on the record that it's compiled. [00:37:55] Speaker 01: So if it had other expert evidence or other sophisticated analysis that it could base, like deviating from the approach, then that would be permissible. [00:38:06] Speaker 03: But you know of no instances where that's happened in the real world? [00:38:11] Speaker 01: So with regards to the I-70 project, EPA did not [00:38:16] Speaker 01: review each aspect. [00:38:18] Speaker 01: So in practical terms, there, the conformity determination did not have EPA's full review at the time it was published. [00:38:31] Speaker 03: I'm just imagining I'm an attorney for a regulated entity, and it's hard for me to imagine that I would give advice to the client to do anything other than what the EPA said in its guidance. [00:38:42] Speaker 03: That seems very risky. [00:38:45] Speaker 01: So what I think would happen on a practical level is that as part of it in our agency consultation process, the state agency or the Department of Transportation would raise questions about their approach and say, we're having problems with this modeling software, for example. [00:39:03] Speaker 01: is a different approach appropriate? [00:39:05] Speaker 01: And that could be part of the discussion. [00:39:07] Speaker 01: So is it likely that an agency would do that outside of the interagency's consultation process, adopt a different approach entirely? [00:39:16] Speaker 01: Maybe not. [00:39:17] Speaker 01: But there is certainly room for flexibility. [00:39:19] Speaker 01: And the South Mount Freer Project itself shows that that flexibility has been applied in practice, that an agency came, it had problems with the formula, [00:39:28] Speaker 04: and the EPA worked with the agency to adopt a different approach than the one issued in the guidance. [00:39:57] Speaker 01: I can get that. [00:40:18] Speaker 01: So I'm not prepared today to speak to what that sentence means or what it refers to precisely, but I'm happy to provide the court with supplemental briefing. [00:40:27] Speaker 01: on that topic if it wishes. [00:40:42] Speaker 04: All right. [00:40:48] Speaker 02: You want to wind it up? [00:40:49] Speaker 01: Oh, sure. [00:40:52] Speaker 01: My final point is the fact that EPA has provided technical assistance to regulate a party series of benefits. [00:41:00] Speaker 01: And it's also beneficial that these formulas be merely a suggested approach to allow for that interagency consultation process to make necessary changes. [00:41:11] Speaker 01: And also because the underlying modeling software on which these calculations are being made itself changes. [00:41:18] Speaker 01: So it adds both flexibility to the regulated parties and also to EPA. [00:41:23] Speaker 04: The modeling software is just putting it at computer ease. [00:41:30] Speaker 04: Concepts that are developed elsewhere, right? [00:41:35] Speaker 01: So the modeling software here, like the MOVE software, that's used to help project [00:41:43] Speaker 01: what we can anticipate the project will contribute in terms of pollution and changes. [00:41:49] Speaker 01: are made to that software as technology advances and as the vehicle fleet changes. [00:41:54] Speaker 01: And it's important to allow EPA the opportunity to update this guidance to reflect the software that's currently in effect. [00:42:03] Speaker 01: And I would also note that the fact that it's flexible is a benefit to citizen groups as well, because they can comment on the conformity analysis while it's happening and identify concerns that can be then addressed. [00:42:21] Speaker 01: There are no further questions. [00:42:36] Speaker 02: I'd like to make three points. [00:42:38] Speaker 02: First of all, with regard to your questions about whether or not DOT can make these changes and ignore EPA, I think it's clear from the text that you're focused on, Judge Williams, in page 38, that EPA reserves to itself [00:43:00] Speaker 02: the determination of whether or not any alternative method is acceptable. [00:43:06] Speaker 02: It says as approved by OEQPS and OTAC. [00:43:11] Speaker 02: This is not a determination that EPA has deferred to the transportation agencies to make independently from EPA. [00:43:20] Speaker 02: And that, I think, is a necessary outcome of the legislative history in this case where Congress resolved some disputes of the kind that you were referring to between EPA and DOT and assigned the responsibility exclusively to EPA to determine what procedures should be applied. [00:43:39] Speaker 02: And that text preserves that power within EPA. [00:43:43] Speaker 02: Secondly, in the City of Olmsted case, this court determined that the transportation agencies do not have the power to interpret the Clean Air Act, but only to apply it. [00:43:55] Speaker 02: And that's definitely relevant to that question. [00:43:58] Speaker 02: And third, as we've noted in our supplemental brief, [00:44:04] Speaker 02: The EPA did not give any notice in any form, whether it was through notice in common under 553 or in response to the publication obligation under 552A1, that they had changed the guidance [00:44:19] Speaker 02: procedures that were initially published in the Federal Register in 2010. [00:44:26] Speaker 02: And until that kind of notice is given, the Supreme Court made it clear in Morton v. Ruiz, EPA's subsequent actions have no force in effect. [00:44:39] Speaker 02: Thank you.