[00:00:01] Speaker 00:
Case number 15-115 at all, South Coast Air Quality Management District Petitioner, Presidium Environmental Protection Agency at all.

[00:00:12] Speaker 00:
Ms.

[00:00:13] Speaker 00:
Lorenz-Argati, Petitioner SCAQMD in number 15-1115.

[00:00:21] Speaker 00:
Ms.

[00:00:22] Speaker 00:
Gage, DOJ, respondent.

[00:00:24] Speaker 00:
Mr. Johnson, environmental intervenor.

[00:00:28] Speaker 00:
Mr. Johnson, petitioner of Sierra Club et al.

[00:00:31] Speaker 00:
In case number 15-1123.

[00:00:33] Speaker 00:
Ms.

[00:00:36] Speaker 00:
Gage, DOJ, respondent.

[00:01:05] Speaker 07:
All right, we'll hear from South Coast first.

[00:01:27] Speaker 01:
May it please the court, my name is Megan Lorenz, representing the South Coast Air Quality Management District, and I would like to reserve three minutes for rebuttal.

[00:01:35] Speaker 01:
Today we are asking the court to hold that EPA erroneously concluded that it had no choice but to interpret the term in the area as used in the context of reasonable further progress, identically to the way that has been interpreted in the context of Raft.

[00:01:50] Speaker 01:
The phrase in the area, as used in reasonable further progress, or RFP, is ambiguous.

[00:01:56] Speaker 01:
The Fifth Circuit has considered this issue in agreement.

[00:01:59] Speaker 01:
Our request is narrow.

[00:02:01] Speaker 01:
We are not asking that you adopt our interpretation of the term, but that you simply remand the rulemaking so that EPA can apply their expertise to this.

[00:02:10] Speaker 01:
The court's decision in the NRDC case does not preclude this result.

[00:02:15] Speaker 01:
The finding that the term in the area is unambiguous in the context of RAC does not mean it must be unambiguous in all contexts.

[00:02:23] Speaker 03:
So the agency was simply wrong as a matter of law.

[00:02:26] Speaker 03:
I'm sorry?

[00:02:27] Speaker 03:
So the agency was wrong simply as a matter of law in concluding that our opinion required it to interpret the phrase as it did?

[00:02:37] Speaker 01:
Yes, that's our position that they failed.

[00:02:39] Speaker 01:
Well, is that your position?

[00:02:40] Speaker 01:
That the term is ambiguous.

[00:02:45] Speaker 01:
The Supreme Court has repeatedly held that the same term within a statute can be interpreted differently in different contexts.

[00:02:51] Speaker 07:
So this all goes to the question of how this relates to our racked opinion.

[00:02:56] Speaker 07:
But can you help me with how, even if we never had the racked opinion, how you would get the words in the area that mean anything other than a non-attainment area?

[00:03:06] Speaker 07:
So I'm looking at 7511A.

[00:03:10] Speaker 07:
Something big B. That's what we're talking about, right?

[00:03:17] Speaker 02:
That whole podium will go down.

[00:03:19] Speaker 02:
Yeah, it may help you to talk to the whole podium itself can be adjusted up and down.

[00:03:26] Speaker 02:
See if it won't go lower.

[00:03:27] Speaker 02:
Maybe easier for you than trying to keep fighting the microphone there.

[00:03:32] Speaker 01:
Thank you.

[00:03:32] Speaker 01:
Is that better?

[00:03:33] Speaker 02:
Yeah, I think so.

[00:03:36] Speaker 07:
So we're talking about B1 big B. Is that right?

[00:03:42] Speaker 07:
B1 big B?

[00:03:44] Speaker 05:
Yes.

[00:03:44] Speaker 07:
OK.

[00:03:45] Speaker 07:
So that says the term baseline emissions means the total amount, I'm going to just call it VAC and NOx, from all anthropogenic sources in the area.

[00:03:55] Speaker 07:
And the question is, what does in the area mean?

[00:03:57] Speaker 05:
Correct.

[00:03:57] Speaker 07:
Right?

[00:03:58] Speaker 07:
And this is in a provision.

[00:04:01] Speaker 07:
that is entitled moderate areas, right?

[00:04:05] Speaker 05:
That's correct, yes.

[00:04:06] Speaker 07:
And moderate areas means, according to 42 U.S.C.

[00:04:12] Speaker 07:
section 7511, subsection C, reference to terms, any reference in this subpart to a moderate area shall be considered a reference to a moderate area as classified under this section.

[00:04:28] Speaker 07:
And this section, namely 7511A, is about non-attainment areas.

[00:04:35] Speaker 07:
So how can it mean anything other than a non-attainment area, regardless of what we said in the other case about the RAC provision?

[00:04:45] Speaker 07:
This is in a section which is all about marginal areas which are marginal because they're non-attainment.

[00:04:52] Speaker 01:
That's correct, Your Honor.

[00:04:53] Speaker 01:
And our position is that Congress chose the term in the area.

[00:04:59] Speaker 01:
In other provisions in Section 182, Congress chose to say specifically in the non-attainment area.

[00:05:06] Speaker 01:
And five other times in Section 182, when referring to a non-attainment area, it said in the non-attainment area.

[00:05:12] Speaker 01:
Here in the context of RFP, it's simply referred to in the area.

[00:05:17] Speaker 02:
What do you say it should mean?

[00:05:20] Speaker 02:
What should the agency

[00:05:24] Speaker 01:
Our position is that because RFP is so intimately tied to attainment, and attainment is based on the emissions that impact that non-attainment area, that the term... Well, I don't think you heard my question.

[00:05:38] Speaker 02:
You're saying they interpreted the area incorrectly.

[00:05:41] Speaker 02:
What would have been the correct interpretation?

[00:05:44] Speaker 01:
Our position is that it should be the area that impacts the non-attainment area's ozone concentrations.

[00:05:50] Speaker 01:
So in the case of a downwind non-attainment area, the area for purposes of RFP would be both that downwind non-attainment area and the upwind area that impacts that downwind area's emissions.

[00:06:03] Speaker 01:
That's how, when EPA determines if an area has achieved attainment, it looks at both the downwind and the upwind emissions.

[00:06:11] Speaker 01:
It does that also in classifying areas.

[00:06:14] Speaker 02:
You notice that in the statute you're saying is ambiguous.

[00:06:21] Speaker 02:
They use the definite article and the singular map.

[00:06:26] Speaker 02:
It doesn't say in areas.

[00:06:28] Speaker 02:
It says in the area.

[00:06:29] Speaker 02:
It doesn't say areas.

[00:06:31] Speaker 02:
It also says area.

[00:06:32] Speaker 02:
So is that not more consistent with the interpretation that the EPA used than it is with the one you just described, that amorphous one that includes parts of various areas?

[00:06:47] Speaker 01:
I think it's referring to the area in this context as the area that affects the emissions in the non-attainment area.

[00:06:55] Speaker 01:
I don't think the area means that it is unambiguously referring to the non-attainment area.

[00:07:07] Speaker 01:
We have three points that we'd like to make why we think the court can determine that the term in the area is ambiguous in the context of RFP.

[00:07:16] Speaker 01:
First, we believe that no deference should be given to EPA because it believed its interpretation was compelled by the opinion in the NRDC case.

[00:07:24] Speaker 01:
Second, the Supreme Court case law holds that the same word may not have identical meaning, and thus this court is not constrained by the NRDC holding.

[00:07:33] Speaker 01:
And third, the distinct purposes of RAC and RFP necessitate different interpretations of the phrase in the area.

[00:07:41] Speaker 01:
And we think context is important for this case.

[00:07:44] Speaker 01:
When EPA sets a new national ambient air quality standard, it has to designate every area in the country as either attainment, non-attainment, or unclassifiable.

[00:07:54] Speaker 01:
And what it does, the designation classification, that is based not just on emissions in the non-attainment area, but based on transported emissions that affect that area.

[00:08:03] Speaker 01:
Again, when it approves an attainment demonstration, that demonstration is based on emissions from the upwind area that impact that downwind area.

[00:08:12] Speaker 01:
And finally, when EPA determines that an area has achieved attainment, it is based on monitored data that again includes upwind emissions.

[00:08:21] Speaker 01:
But in the rulemaking before you, EPA concluded that the required increments of progress on that path to attainment could not include upwind emissions.

[00:08:30] Speaker 01:
And we think that doesn't make sense.

[00:08:32] Speaker 01:
The court can fix this error by deciding that the term in the area

[00:08:38] Speaker 01:
is ambiguous and allows for a different interpretation than EP felt.

[00:08:41] Speaker 07:
I'm just having trouble finding what's ambiguous about it.

[00:08:44] Speaker 07:
That's the problem.

[00:08:46] Speaker 07:
I don't see when you have a section, when you have words that say in the area, as my colleague pointed out, and it's in a subsection entitled and all about moderate areas, and where we know that moderate areas are non-attainment areas,

[00:09:06] Speaker 07:
What language in this sphere is ambiguous?

[00:09:11] Speaker 07:
What makes us think that this could mean anything other than the kind of area that the statutory subsection is about?

[00:09:23] Speaker 01:
there's no text in the act that is insurmountable in determining that the area means the nonattainment area, or that it is an unambiguous term.

[00:09:36] Speaker 01:
The fact that in section C for serious areas, when it goes through the requirements in that area, then the nonattainment demonstration requirement and the requirement to do a demonstration of reasonable further progress are grouped together in

[00:09:51] Speaker 01:
subsections too.

[00:09:54] Speaker 01:
We believe that shows that Congress saw these two things as intimately related, that RFP is connected to attainment and because attainment is based on emissions that are from outside the non-attainment area and impact the non-attainment area downwind.

[00:10:12] Speaker 01:
that it makes sense that RFP would also be held to that same standard when determining if an area is making progress to reaching attainment.

[00:10:31] Speaker 01:
RACT is a source-specific requirement.

[00:10:34] Speaker 01:
It's defined as the lowest emission limitation that a particular source is capable of meeting by the application of control technology that's reasonably available.

[00:10:43] Speaker 01:
We think in the NRDC case, in the area in that context was unambiguous.

[00:10:52] Speaker 01:
A non-attainment area's obligation to set emission limitations on sources has to mean sources within the non-attainment area.

[00:11:00] Speaker 01:
Thus, when a non-attainment area is required to implement RACS, it necessarily has to achieve reductions that the particular sources in that non-attainment area are capable of achieving.

[00:11:12] Speaker 01:
If attainment was measured solely based on the emissions generated from the sources in the non-attainment area, then we would agree that in the area in the context of RFP would also be ambiguous.

[00:11:25] Speaker 01:
But RFP is defined as the incremental progress that an area must make to reach attainment.

[00:11:31] Speaker 01:
And because attainment is concerned with both emissions generated in the non-attainment area and emissions that are transported to that area, we believe that in the area can logically mean the area that impacts the non-attainment area's ability to attain.

[00:11:46] Speaker 01:
And EPA had this interpretation for 20 years.

[00:11:50] Speaker 01:
based on their expertise that this was the correct interpretation of the term in the area before they felt that they were compelled to change that decision based on this decision in the NRDC case.

[00:12:03] Speaker 01:
Moreover, limiting the phrase to just the non-attainment area can produce absurd results.

[00:12:10] Speaker 01:
EPA could be required to disapprove a plan that could not achieve 3% reductions within the area because there are not enough sources in that area to get the reductions from while the area's air quality is still meeting the 3% RFP requirement and the plan for that area will still timely achieve attainment.

[00:12:31] Speaker 01:
The interveners argue that you can avoid this absurd result by just complying with the technologically achievability exception for the 3%.

[00:12:40] Speaker 01:
But our concern with that exception is that it fails to take into account economic feasibility.

[00:12:46] Speaker 01:
So an area might be required to do things that are technologically feasible, like gasoline rationing or limiting driving days.

[00:12:54] Speaker 01:
But these draconian measures don't make sense in the context

[00:12:58] Speaker 01:
of an area that would still be achieving the 3% requirement because it's getting the benefit of the reductions from the upwind area.

[00:13:07] Speaker 01:
We think that this potential for absurd results justifies interpreting the term in the area as something different than just the non-attainment area.

[00:13:15] Speaker 07:
But aren't you just fighting with Congress here?

[00:13:17] Speaker 07:
I mean, Congress, in that particular example, used the word technological feasibility.

[00:13:22] Speaker 07:
You think technological feasibility isn't good enough.

[00:13:25] Speaker 07:
It should be economic feasibility.

[00:13:27] Speaker 07:
In that case, Congress used technological feasibility.

[00:13:31] Speaker 07:
Doesn't that all suggest that this may be a very good policy argument, but one therefore that has to be presented to the Congress, because it's not consistent with the statute?

[00:13:42] Speaker 01:
we think that the language of just referring to the area in the statute gives enough room for EPA to reasonably determine that it means something other than just the non-attainment area.

[00:13:56] Speaker 07:
We should let you hold on to your rebuttal time unless anybody else has a question.

[00:13:59] Speaker 03:
I'm just asking a question, just following up on the Chief Judge's question.

[00:14:04] Speaker 03:
Can you conceive of any way in which a non-attainment area could

[00:14:10] Speaker 03:
control emissions from outside that area through technological advances?

[00:14:23] Speaker 01:
There could be statewide control measures that would reduce emissions outside the non-attainment area?

[00:14:28] Speaker 01:
Yes, by redefining the non-attainment area.

[00:14:33] Speaker 01:
The non-attainment area, while redefining the area is an issue in this case, an EPA

[00:14:40] Speaker 01:
blessed the non-attainment boundaries that were drawn within the state of California.

[00:14:46] Speaker 01:
The problem with defining the area to be a bigger area is that Coachella Valley and some of the downwind areas do not have the severity of the air quality problem that the upwind areas have.

[00:14:57] Speaker 03:
No, I understand.

[00:14:58] Speaker 03:
That's the absurd results argument.

[00:15:00] Speaker 03:
But the Chief Judge was focusing on Congress's use of the phrase technological feasibility.

[00:15:05] Speaker 03:
And I was just trying to think of the practical implications of relying on that phrase in this context.

[00:15:10] Speaker 01:
Yeah, and in the Coachella Valley, just one more comment.

[00:15:14] Speaker 01:
If you got rid of every source in the Coachella Valley, the downwind area of the Coachella Valley, that non-attainment area, it would still be non-attainment.

[00:15:22] Speaker 01:
Despite implementation of all technology that's available?

[00:15:27] Speaker 01:
Yes.

[00:15:27] Speaker 03:
That's the only point.

[00:15:28] Speaker 03:
Thank you.

[00:15:29] Speaker 01:
Thank you.

[00:15:31] Speaker 07:
Here from the Justice Department.

[00:15:42] Speaker 04:
Good morning, Your Honors.

[00:15:44] Speaker 04:
May it please the Court?

[00:15:45] Speaker 04:
My name is Heather Gange from the Justice Department on behalf of EPA, and with me at council table is Karen Bianco from the Environmental Protection Agency.

[00:15:59] Speaker 04:
With respect to this discreet challenge to the implementation rule,

[00:16:05] Speaker 04:
An examination of the statutory language is imperative.

[00:16:09] Speaker 04:
This reasonable further progress requirement for ozone is contained in section 186B1A, which requires areas to reduce their VOC emissions by 15% of baseline emission levels.

[00:16:24] Speaker 04:
And that term baseline emissions is expressly defined in section 186B1B as the total amount of actual emissions

[00:16:34] Speaker 04:
from all anthropogenic sources in the area.

[00:16:37] Speaker 04:
Now, in the past, EPA construed that definition to mean that pollution levels in any particular area had to be reduced by the designated percentage, but the actual reductions could be made from outside sources.

[00:16:54] Speaker 04:
But when this court issued its NRDC versus EPA decision in 2009, this court construed nearly identical language in section 172C1.

[00:17:06] Speaker 04:
Now, 172C1

[00:17:11] Speaker 04:
post is entirely correct about that.

[00:17:13] Speaker 04:
But again, that language is nearly identical.

[00:17:16] Speaker 04:
And RACT and RFP are both provisions that are designed to require emission reductions that will ultimately achieve timely attainment.

[00:17:27] Speaker 04:
Now, in that decision, this court analyzed the term in the area, apparently under Chevron 1.

[00:17:35] Speaker 03:
Now, this court did not expressly say Chevron 1.

[00:17:38] Speaker 03:
So in your view then Ventura County has nothing to worry about?

[00:17:43] Speaker 04:
It would be our view that Ventura County is in a difficult situation.

[00:17:51] Speaker 04:
So it does have something to worry about?

[00:17:56] Speaker 04:
It is profoundly affected by emissions from the South Coast, but we do feel compelled to point out that Ventura County has options other than torturing the language of Section 186 to achieve the relief that it wants.

[00:18:12] Speaker 04:
It wants to be able to count emission reductions from outside the area, which EPA used to... What can it do?

[00:18:18] Speaker 04:
They can take the measure that Your Honor mentioned just a few minutes ago, which is under

[00:18:26] Speaker 04:
under section 107 D3D, D's and David, the state, not the South Coast and not Ventura, they're not the state, but the state of California can do what it has done before and ask for the boundaries of the non-attainment areas to be redrawn.

[00:18:43] Speaker 03:
And so the response to that was, these are all theoretical, but EPA has never approved this type of thing before.

[00:18:51] Speaker 04:
EPA has approved boundary redesignations before for the South Coast.

[00:18:56] Speaker 04:
I believe that that case was settled before argument that there have been cases filed and briefed in the Ninth Circuit where EPA has approved boundary redesignations.

[00:19:06] Speaker 03:
So the burden is on Ventura County to come forward.

[00:19:11] Speaker 04:
The burden would be on Ventura County to approach the California Air Resources Board, which is actually the state actor with respect to the Clean Air Act in California.

[00:19:22] Speaker 03:
So it has to convince the state to do what?

[00:19:25] Speaker 03:
To petition EPA to redraw the non-attainment area?

[00:19:30] Speaker 04:
It would have to, under section 107D3D, the governor of a state can request.

[00:19:37] Speaker 04:
So the answer is yes?

[00:19:39] Speaker 04:
Yes, the burden would be on Ventura to ask the state to seek a boundary redesignation.

[00:19:49] Speaker 04:
Now, the South Coast is correct that if the boundaries are redrawn, depending on which area's boundaries are redrawn, the portion that's within the expanded, you know, within the lines on the map, if you will, that have been expanded, all sources in all of that area would be subject to the Clean Air Act requirements based on the classification.

[00:20:12] Speaker 03:
So let me just ask then, EPA was wrong for 20 years?

[00:20:18] Speaker 03:
in its interpretation of this language.

[00:20:22] Speaker 03:
APA would not agree with that.

[00:20:24] Speaker 04:
In 2004, the Fifth Circuit did hold that the very provision we're talking about here was ambiguous with respect to whether emission reductions from outside of the area could be counted or reasonable for the progress purposes.

[00:20:39] Speaker 04:
So the agency would not agree that it was wrong or somehow running rogue.

[00:20:45] Speaker 04:
But once this court's decision issued in 2009, in this jurisdiction where our national rule-makings are reviewed, we believe that when almost identical language is construed under Chevron 1, that the agency in fact does not have discretion to interpret that, however compelling the policy reasons might be.

[00:21:08] Speaker 04:
Now, perhaps we're incorrect.

[00:21:10] Speaker 04:
And in that case, we would request this court's guidance on that issue.

[00:21:14] Speaker 04:
And if the court does not agree with us, that that result is compelled to please remand this portion of the rule so that the agency can reconsider its position.

[00:21:29] Speaker 04:
I would point out briefly that for the reasons that we've just been discussing, the agency does not believe that the doctrine of absurd results applies.

[00:21:39] Speaker 04:
The South Coast is in a very difficult position, as is the Coachella Valley Inventor.

[00:21:44] Speaker 04:
I don't think anyone would deny that.

[00:21:47] Speaker 04:
But Congress did anticipate that areas with different classification levels would have varying levels of difficulty in complying with the reasonable further progress requirement.

[00:21:59] Speaker 03:
I mean, what I'm thinking about, and Judge Santel and I have sat on a series of cases of the problems of one state trying to control its emissions where the air is moving

[00:22:12] Speaker 03:
And Virginia can't control, as it were, what Ohio was doing.

[00:22:18] Speaker 03:
And the agency has understood that in setting budgets for the various states.

[00:22:24] Speaker 03:
And indeed, we required that the agency do that.

[00:22:30] Speaker 03:
So I'm just wondering, why does the non-attainment context mean that the concept

[00:22:40] Speaker 03:
of interpreting the language must change or reasonably can change?

[00:22:46] Speaker 04:
Well, in this case, we're not considering a situation where the relevant entity, the state of California, does not have the power to address the problem.

[00:22:55] Speaker 03:
I realize it's not states.

[00:22:56] Speaker 03:
We're talking about major sources of these emissions.

[00:22:59] Speaker 03:
Oh, I'm getting it.

[00:23:02] Speaker 04:
Unfortunately, the state of California is not with us here in this case.

[00:23:06] Speaker 04:
We might or might not be hearing something very different if the California Air Resources Board were here.

[00:23:12] Speaker 03:
Right now we're hearing from... Well, your brief didn't take issue with the Ventura County brief.

[00:23:19] Speaker 03:
In that sense, that was not one of your arguments.

[00:23:23] Speaker 03:
You just put them on the merits.

[00:23:25] Speaker 04:
That's correct.

[00:23:26] Speaker 04:
The agency understands that these downwind areas will have difficulty demonstrating reasonable further progress.

[00:23:33] Speaker 04:
There's no dispute about that.

[00:23:36] Speaker 04:
The situation the agency finds itself in is that its prior construction of the baseline emissions definition, it was a Chevron step two interpretation, and it was driven by policy concerns.

[00:23:51] Speaker 02:
I want to make sure I understand

[00:23:56] Speaker 02:
Don't agree with the petitioner that this is a Chevron 1 question.

[00:24:01] Speaker 02:
In the brief, it seemed to me your fallback position was that if it is Chevron 2, then we're still OK because our interpretation is still reasonable.

[00:24:12] Speaker 02:
Are you saying now that that's not the case, that if we determine that it should go to Chevron 2, we should remand the case?

[00:24:18] Speaker 02:
Or am I misinterpreting what you're saying?

[00:24:20] Speaker 04:
And I apologize if our briefing was unclear.

[00:24:23] Speaker 04:
We believe that this court's analysis of the term in the area was a Chevron step one analysis.

[00:24:29] Speaker 02:
Well, I understand that you believe that.

[00:24:31] Speaker 02:
I'm asking you beyond that, if we disagreed with that, would that mean that the petition is entitled to a remand?

[00:24:39] Speaker 02:
I guess that can stop there.

[00:24:41] Speaker 02:
Wouldn't that mean the petition is entitled to a remand for reexamination?

[00:24:44] Speaker 04:
We believe so, Your Honor.

[00:24:45] Speaker 04:
The agency would want the opportunity to reconsider its position.

[00:24:49] Speaker 02:
Now that's the part I didn't understand you to be consistent with in your brief.

[00:24:54] Speaker 02:
I thought your brief was to the effect that even if we treated it as a chevron too, we could still affirm.

[00:25:01] Speaker 02:
But you would say we would have to remit.

[00:25:04] Speaker 04:
We believe that we would need a remit because the basis for the finding in this rulemaking was that we were constrained under chevron step one.

[00:25:17] Speaker 07:
Thank you.

[00:25:18] Speaker 07:
It was actually, I guess, that you were constrained by our rat opinion.

[00:25:22] Speaker 07:
Yeah.

[00:25:22] Speaker 04:
Right.

[00:25:23] Speaker 04:
By the Chevron Step 1 construction of the term in the area.

[00:25:27] Speaker 04:
Yes, your honor.

[00:25:31] Speaker 07:
Further questions?

[00:25:35] Speaker 03:
Thank you.

[00:25:35] Speaker 03:
Thank you, Your Honor.

[00:25:37] Speaker 03:
I have a question.

[00:25:37] Speaker 03:
I'm sorry.

[00:25:41] Speaker 03:
One of the challenges to EPA's

[00:25:48] Speaker 03:
decision in the rule is that one of the re-designation substitutes refers to only two of the five requirements in 7407D3E and your brief response that you did in fact

[00:26:15] Speaker 03:
incorporate all five of those requirements in the redesignation substitute.

[00:26:22] Speaker 03:
And you reference me to JA 380.

[00:26:26] Speaker 03:
And you may well have, but how can I find that out when you only reference three of them?

[00:26:33] Speaker 03:
There may be some implicit reference elsewhere, but I couldn't find it.

[00:26:38] Speaker 04:
And your honor, I believe that is in the second case.

[00:26:40] Speaker 04:
But I briefly said that there are two things.

[00:26:43] Speaker 03:
Oh, we're just talking about South Coast.

[00:26:45] Speaker 03:
All right.

[00:26:45] Speaker 03:
You're not arguing South Coast.

[00:26:49] Speaker 03:
I mean, you're not arguing the environmentalists.

[00:26:51] Speaker 03:
Right.

[00:26:52] Speaker 03:
That's correct.

[00:26:53] Speaker 03:
Fine.

[00:26:53] Speaker 03:
Sorry.

[00:26:53] Speaker 03:
I would draw the question.

[00:26:55] Speaker 03:
And thank you.

[00:26:57] Speaker 07:
We'll hear from the environmental intervenors who have two minutes to say something that the DOJ did not already say.

[00:27:06] Speaker 06:
Thank you.

[00:27:07] Speaker 06:
Good morning.

[00:27:08] Speaker 06:
Seth Johnson for Environmental Interveners.

[00:27:10] Speaker 06:
This is a Chevron Step 1 case.

[00:27:12] Speaker 06:
It always has been since 1990.

[00:27:14] Speaker 06:
The petitioners point to the Lean case out of the Fifth Circuit.

[00:27:21] Speaker 06:
They first raised that case on reply.

[00:27:24] Speaker 06:
But that case is wrong.

[00:27:26] Speaker 06:
First, it's dicta.

[00:27:29] Speaker 06:
That case was looking at contingency measures, not at the progress requirements.

[00:27:33] Speaker 06:
And second, the case's Chevron analysis conflicts with the Chevron analysis that this court consistently applies.

[00:27:40] Speaker 06:
The Fifth Circuit held that the Clean Air Act was ambiguous just because it didn't expressly bar the missions from outside the non-attainment area.

[00:27:50] Speaker 06:
Cases like the Railway Labor Executives Association case, which is an en banc case, 29 F3rd, 655, and the NRDC case itself make clear that this court doesn't jump to Chevron step two so quickly.

[00:28:07] Speaker 06:
Petitioners also argue that the control technology and progress requirements are somehow different, but really the context is the same.

[00:28:15] Speaker 06:
They're both measures that are intended to drive the non-attainment area to take all the measures that it can reasonably take to reduce its emissions in order to solve a pollution problem.

[00:28:25] Speaker 06:
Other areas have to do things too, but the non-attainment area has to do all that it can as well.

[00:28:31] Speaker 06:
And as for the absurd results argument, originally petitioners didn't see fit to mention that there were safety valves in the Act.

[00:28:41] Speaker 06:
They've changed their argument on reply to say that, well, maybe these safety valves will lead to results we don't like, but the absurd results doctrine is a high bar and they haven't remotely satisfied it.

[00:28:52] Speaker 06:
And as the Department of Justice pointed out, there's another solution to this reported problem anyway, which is they can ask for the boundaries to be withdrawn.

[00:29:07] Speaker 06:
Otherwise, I'd rest on our briefs.

[00:29:08] Speaker 06:
This is a chef on step one case.

[00:29:10] Speaker 07:
Questions from the panel?

[00:29:15] Speaker 07:
All right, now we'll begin the balance of the case, or rather the second case.

[00:29:22] Speaker 07:
And I think you're back up.

[00:29:28] Speaker 07:
Yes.

[00:29:33] Speaker 07:
Oh, I'm sorry.

[00:29:35] Speaker 07:
I apologize.

[00:29:41] Speaker 01:
Thank you, honor.

[00:29:41] Speaker 01:
In closing, we just want to emphasize that under EPA's prior position, the downwind areas were getting the reductions that the statute required.

[00:29:52] Speaker 01:
EPA required a showing that when you took credit for emission reductions outside the non-attainment area, you had to show that those reductions benefited

[00:30:00] Speaker 01:
the air quality in the non-attainment area.

[00:30:03] Speaker 01:
So what we're asking for and what EPA's prior position was did not negatively affect the air quality or hold those downwind areas to any lower standard than any other area was held to.

[00:30:14] Speaker 01:
And in fact, in the Coachella Valley and Ventura County examples, they were getting the benefit of the south coast upwind reduction.

[00:30:21] Speaker 01:
So they were in no way harming the residents in those areas with unhealthy air.

[00:30:25] Speaker 01:
that was required by the statute.

[00:30:28] Speaker 01:
And finally, there was a question about whether the state agreed with us.

[00:30:31] Speaker 01:
And in JA 269, they submitted a letter that says they support our legal theory in this case.

[00:30:37] Speaker 01:
Thank you very much.

[00:30:39] Speaker 07:
Thank you for that.

[00:30:41] Speaker 07:
Okay, I think now it's your turn.

[00:30:49] Speaker 07:
You guys switching seats or something?

[00:30:51] Speaker 07:
Okay, go right ahead.

[00:30:52] Speaker 07:
Musical chair, as long as there's a chair left for everybody.

[00:31:41] Speaker 06:
Well, good morning again.

[00:31:43] Speaker 06:
I'm still Seth Johnson, but now I'm for environmental petitioners.

[00:31:47] Speaker 06:
And I've reserved two minutes for rebuttal.

[00:31:50] Speaker 06:
Congress carefully created a statutory system of gradually escalating controls to drive attainment of ozone standards.

[00:31:57] Speaker 06:
We've challenged several rule provisions that weaken the congressionally mandated health protections.

[00:32:02] Speaker 06:
Speaking broadly, these rule provisions delay air quality improvements and even allow air quality to retreat to get worse, even though EPA strengthens the ozone standard because ozone was more dangerous than it previously understood.

[00:32:15] Speaker 06:
Also, these rule provisions illegally and arbitrarily increase EPA's discretion over implementing ozone standards, contrary to Congress's decision in 1990 to curb that discretion.

[00:32:26] Speaker 06:
I plan to focus on three issues.

[00:32:29] Speaker 06:
First, why EPA's revocation of the 1997 standard was arbitrary.

[00:32:34] Speaker 06:
Second, how certain aspects of EPA's approach to the transition from the 1997 to the 2008 standard are unlawful and arbitrary.

[00:32:41] Speaker 06:
And third, how EPA violated the act by allowing factories, refineries, and power plants in non-attainment areas.

[00:32:48] Speaker 02:
In the course of that, you will get to this re-designation issue about which

[00:32:53] Speaker 02:
The Redesignation substitute?

[00:32:57] Speaker ?:
Yes.

[00:32:58] Speaker 06:
Don't use up the time without getting to that.

[00:33:02] Speaker 06:
I will do my best.

[00:33:03] Speaker 06:
And if you have questions about other issues, I'll be able to answer them.

[00:33:08] Speaker 06:
The third issue that I wanted to raise is the emissions averaging for control technology.

[00:33:14] Speaker 06:
So I'll begin with the revocation of the 1997 standard, which, if you agreed with us, would, I think, not require the court to decide the legality of the Redestination Substitute.

[00:33:25] Speaker 02:
EPA uses- Don't always assume that we will agree with you, Counsel.

[00:33:28] Speaker 06:
I'm not assuming anything.

[00:33:31] Speaker 07:
Even if it would make our life easier.

[00:33:35] Speaker 06:
EPA uses the revocation to eliminate or rewrite congressionally mandated consequences for when areas fail to attain on time.

[00:33:45] Speaker 06:
Even though EPA recognized that ozone is more harmful than it thought, it failed to consider the importance of timely attainment of the 1997 standard,

[00:33:54] Speaker 06:
And it's irrationally delaying triggering more protective measures in the short term in favor of triggering them later.

[00:33:59] Speaker 07:
So just to be clear, you're not actually objecting to the revocation of the standard.

[00:34:03] Speaker 07:
You're objecting to what went along with that.

[00:34:06] Speaker 06:
Is that right?

[00:34:07] Speaker 06:
Well, the revocation of the standard brought these consequences with it.

[00:34:10] Speaker 06:
So vacating the revocation would undo these harmful consequences.

[00:34:14] Speaker 07:
Well, if we did not vacate the revocation,

[00:34:19] Speaker 07:
We still have an argument that these are anti-backsliding controls that are required.

[00:34:23] Speaker 06:
If the court wants to hold that because EPA neglected to include these important protections as anti-backsliding requirements, therefore the revocation would also be arbitrary because, as this court held in South Coast,

[00:34:39] Speaker 06:
EPA has authority to revoke a standard provided that it introduces adequate anti-backsliding measures.

[00:34:45] Speaker 06:
So then it wouldn't be arbitrary.

[00:34:46] Speaker 06:
I thought you just said it would be.

[00:34:47] Speaker 06:
It wouldn't be arbitrary if it kept the backsliding anti-backsliding standards.

[00:34:51] Speaker 06:
I think that would be a different case.

[00:34:53] Speaker 06:
But if it didn't, sorry.

[00:34:57] Speaker 06:
I may have gotten confused by the premise of your question.

[00:34:59] Speaker 03:
Yes, if you had adequate backsliding, that's your argument.

[00:35:02] Speaker 06:
Yes, and by omitting the teeth that Congress required for when an area fails to timely attain, EPA failed to include adequate anti-backsliding measures.

[00:35:16] Speaker 06:
And it also failed – the revocation has these harms in other ways.

[00:35:20] Speaker 06:
A good example is in Coachella Valley.

[00:35:22] Speaker 06:
We sent in a 28-J letter earlier this week about it.

[00:35:25] Speaker 06:
The area's attainment deadline under the 1997 standard hasn't passed yet, but EPA just refused to tighten limits on motor vehicle emissions there simply because it had revoked the standard.

[00:35:39] Speaker 06:
Examples of where the attainment deadlines with the teeth Congress intended aren't being enforced.

[00:35:47] Speaker 06:
Those come in Los Angeles and Dallas.

[00:35:52] Speaker 06:
Basically, Congress required protections to get stronger when areas missed their attainment deadlines, but EPA refuses to require stronger protections when areas missed them under a revoked standard.

[00:36:04] Speaker 06:
L.A.

[00:36:05] Speaker 06:
failed to hit the one-hour standard on time in 2010.

[00:36:09] Speaker 06:
EPA refused to require it to create a tough new attainment plan under Section 75090.

[00:36:14] Speaker 06:
Dallas failed to attain the 1997 standard on time in 2013.

[00:36:24] Speaker 06:
It was supposed to be bumped up to severe, which would have increased the protections in the area, but EPA instead revoked the standard.

[00:36:32] Speaker 06:
Now Dallas isn't going to be subject to a mandatory bump up to severe until 2021 at the earliest.

[00:36:38] Speaker 06:
The air is staying dirty, but the areas aren't moving closer to getting the strong protections that the act requires.

[00:36:44] Speaker 06:
EPA is now considering revoking the 2008 standard, and that would restart this whole process all over again.

[00:36:50] Speaker 06:
Protections in the area are on a treadmill, thanks to the revocation.

[00:36:53] Speaker 06:
And that's irrational under the South Coast Rehearing Decision, which is 489 at 3rd, 1245 at 1248.

[00:37:01] Speaker 06:
EPA is avoiding implementing time-delayed protections that Congress mandated through the revocation.

[00:37:10] Speaker 06:
I'll move to the anti-backsliding and start there with the redesignation substitute, if there are no further questions about that.

[00:37:19] Speaker 06:
So to deal with the revocation of the 97 standard, EPA created this complicated anti-backsliding framework of protections.

[00:37:27] Speaker 06:
And it short-circuited the statute's process for ensuring that the air gets and stays clean.

[00:37:33] Speaker 06:
It did this in two key ways.

[00:37:35] Speaker 06:
First is the redesignation substitute.

[00:37:37] Speaker 06:
And the second pertains to what we've called orphan non-attainment areas, areas that remain designated non-attainment under the 97 standard, but were initially designated attainment under the 2008.

[00:37:49] Speaker 06:
So I'll start with the redesignation substitute.

[00:37:53] Speaker 06:
After it revoked the 97 standard, EPA invented this extra statutory mechanism to allow areas that still violate the 2008 standard to shed anti-backsliding protections even if they don't meet all the requirements that the statute specifies for redesignation.

[00:38:08] Speaker 06:
And the Houston area shows how the redesignation substitute relaxes protections.

[00:38:12] Speaker 06:
Before it got a substitute redesignation, Houston was classified as severe.

[00:38:17] Speaker 06:
So if a new or modified source could emit at least 25 tons per year of an ozone-forming pollutant, it would be subject to new source review, and it would have to install very effective pollution control.

[00:38:28] Speaker 06:
It would actually have to secure offsets in the area at a ratio of 1.3 tons offset for every one ton that it would add.

[00:38:37] Speaker 06:
After it got a substitute rate redesignation, Houston was classified as marginal, and only sources that could emit at least 100 tons per year were subject to these new source review requirements, and the offset requirement was itself loosened.

[00:38:51] Speaker 06:
The standard got stronger, protections got weaker, and EPA allowed air quality in the area to retreat.

[00:38:57] Speaker 06:
It can't do that.

[00:38:59] Speaker 06:
EPA identifies no statutory authority to make up a re-designation substitute, especially a re-designation substitute that's weaker than the actual re-designation requirements, and there is none.

[00:39:09] Speaker 06:
To the contrary, the Act provides one and only one path for re-designation, and that's under Section 7407D3E, and the re-designation substitute isn't that path.

[00:39:20] Speaker 02:
That's the one we're wanting specifically.

[00:39:21] Speaker 02:
I ask you, there are five requirements set forth under that statute.

[00:39:26] Speaker 02:
Roman one through I through V you want to?

[00:39:32] Speaker 02:
Right.

[00:39:32] Speaker 02:
Which of those do you say are not met in the EPA's pharmacy?

[00:39:38] Speaker 06:
Well, so the statute requires a redesignated area to have full EPA approval of its state implementation plan.

[00:39:50] Speaker 06:
That's Roman numeral II.

[00:39:53] Speaker 06:
The redesignation substitute does not.

[00:39:56] Speaker 06:
The statute requires the administrator to have approved a maintenance plan under section 7505A.

[00:40:05] Speaker 06:
And that's an enforceable plan that lasts for 10 years with contingency measures that kick in automatically to cure a violation.

[00:40:14] Speaker 06:
The redesignation substitute does not so require.

[00:40:16] Speaker 06:
Which lowercase Roman is that?

[00:40:19] Speaker 06:
That is IV.

[00:40:20] Speaker 06:
And then also lowercase Roman

[00:40:24] Speaker 06:
V, which requires the non-attainment area to have actually met all its requirements that apply to it as a non-attainment area, redesignation substitute does not so require.

[00:40:41] Speaker 06:
There's no justification for EPA to create a weaker substitute for redesignation than the actual requirements.

[00:40:48] Speaker 06:
I'd like to move to the second big illegality in the anti-backsliding regulations.

[00:40:53] Speaker 07:
Are you – I have to say, in my own notes here, I noted Romanette 2 and 5, but not 4.

[00:41:01] Speaker 07:
Did you argue before that IV was missing?

[00:41:07] Speaker 07:
It's in our reply.

[00:41:08] Speaker 06:
In our reply.

[00:41:10] Speaker 06:
The second big illegality is how it simply wiped out protections in areas that have never been re-designated to attainment under the 1997 standard, but were initially designated attainment under the 2008.

[00:41:26] Speaker 06:
orphan non-attainment areas.

[00:41:28] Speaker 06:
Compliance with standards in these areas can be fleeting.

[00:41:31] Speaker 06:
The record shows that numerous areas dropped back into non-attainment, dropped back into violation of standards.

[00:41:38] Speaker 06:
But EPA eliminated or weakened two anti-collusion controls in these areas.

[00:41:43] Speaker 06:
The first is the resource review control that I've discussed a little bit.

[00:41:47] Speaker 06:
And the second is a conformity control that keeps federally approved projects like highways from causing or worsening violations of any standard.

[00:41:55] Speaker 06:
Eliminating these two controls in areas that have never been re-designated to attainment contravenes this court's case law and the Clean Air Act.

[00:42:04] Speaker 06:
It's counterintuitive for a stronger standard to give weaker protections.

[00:42:09] Speaker 06:
And EPA has interpreted the act's anti-backsliding provisions to apply here, just as it did in South Coast and the NRDC fees case.

[00:42:18] Speaker 06:
the 643F 311 case.

[00:42:20] Speaker 06:
And in those cases, this court held that EPA violated the act's anti-backsliding provisions when it enforced a control in fewer areas or a subset of regions where it was enforced before.

[00:42:32] Speaker 06:
And that's exactly what EPA has done here.

[00:42:34] Speaker 06:
In areas like Providence and Boston, the conformity control applied before EPA revoked the 1997 standard.

[00:42:41] Speaker 06:
Now it doesn't, meaning there's no mandatory protection against ozone resulting from highway system expansions.

[00:42:48] Speaker 06:
The new source review control applied in places like Amador County, California, before you get revoked the 1997 standard.

[00:42:55] Speaker 06:
Now it doesn't violations of standards in such areas can and do recur the acts anti backsliding requirement bars.

[00:43:03] Speaker 06:
elimination of a control and there's no dispute that new source review is a control.

[00:43:08] Speaker 06:
Conformity determinations also are controls under the plain meaning of the term controls in the Act because there's something that's intended to intended to and designed to constrain ozone levels.

[00:43:20] Speaker 06:
I also just want to put in a quick word about another set of areas with historic ozone problems where EPA also got rid of the conformity control.

[00:43:29] Speaker 06:
These are areas that are maintenance under the 1997 standard, but areas that were also initially designated attainment under the 2008, we called these working maintenance areas.

[00:43:41] Speaker 06:
EPA couldn't legally eliminate conformity in these areas because EPA couldn't lawfully get rid of maintenance planning requirements by fiat.

[00:43:54] Speaker 06:
And maintenance planning requirements are an express trigger for conformity to apply.

[00:43:58] Speaker 06:
In all these orphan areas with historic ozone problems, EPA is rendering large portions of the statute abruptly obsolete.

[00:44:06] Speaker 06:
That's illegal under Whitman.

[00:44:09] Speaker 06:
Moving to the implementation of the 2008 standard, EPA illegally allowed existing factories and power plants not to implement reasonably available control technology to reduce their emissions of NOx, which is a precursor of ozone.

[00:44:23] Speaker 06:
Instead, plants can average out their emissions with purported reductions from other plants.

[00:44:27] Speaker 06:
But Section 7511A-B2 unambiguously requires implementation of reasonably available control technology on all major stationary sources of NOx.

[00:44:41] Speaker 06:
And this control technology requirement is important to establishing a minimum level of control on existing sources in a non-attainment area.

[00:44:49] Speaker 06:
EPA's approach can't be reconciled with the Act.

[00:44:52] Speaker 06:
The key terms here are implementation and all.

[00:44:56] Speaker 06:
Implementation means actual fulfillment by concrete measures, and EPA has always defined reasonably available control technology to focus on how much a particular source can reduce its pollution by applying control technology.

[00:45:10] Speaker 06:
Implementing reasonably available control technology thus requires that source to actually fulfill its reduction capability by applying control technology.

[00:45:19] Speaker 06:
And the Act requires all major sources to implement reasonably available control technology.

[00:45:25] Speaker 06:
This means all of them have to actually fulfill their own reduction capability by applying control technology.

[00:45:30] Speaker 06:
If one doesn't, not all have.

[00:45:32] Speaker 06:
That source's emissions could actually increase.

[00:45:35] Speaker 06:
The statutory context also confirms that all sources have to apply control technology.

[00:45:40] Speaker 06:
Congress provided a source-specific exemption from the NOx control requirement based on whether NOx reductions from that source would be effective at reducing ozone levels.

[00:45:52] Speaker 06:
If the reasonably available control technology requirement allowed collective averaging, that source-specific exemption would be superfluous or even undermined.

[00:46:04] Speaker 06:
If the court has no further questions, I'd just ask that the portions of dual we challenge be vacated, and I'd reserve any remaining time for rebuttal.

[00:46:18] Speaker 07:
Could I ask you about this averaging question?

[00:46:22] Speaker 07:
Yeah.

[00:46:39] Speaker 07:
So I understand the point about 7511 AB2 seeking to apply to individual sources.

[00:46:53] Speaker 07:
But then you have 7502 C1, which just talks about reductions in emissions.

[00:47:03] Speaker 07:
So does that add a level of ambiguity to

[00:47:08] Speaker 07:
What might not be so ambiguous from 7511A?

[00:47:11] Speaker 06:
No.

[00:47:12] Speaker 06:
Why not?

[00:47:12] Speaker 06:
7511A is a more specific provision, and that controls over a more general.

[00:47:18] Speaker 06:
And this court recognized that, I think, in the NRDC implementation case at page 1251.

[00:47:24] Speaker 06:
And the EPA itself recognized that RACT

[00:47:31] Speaker 06:
that the 7511b2 requirements impose additional restrictions.

[00:47:36] Speaker 06:
We cited that in our reply brief.

[00:47:42] Speaker 07:
Other questions from the panel?

[00:47:46] Speaker 07:
Thank you.

[00:48:00] Speaker 04:
Good morning.

[00:48:02] Speaker 04:
I think this court addressed very early the revocation question.

[00:48:07] Speaker 04:
EPA does believe that as it did with the earlier one-hour naps, it is entitled to

[00:48:15] Speaker 04:
revoke the eight-hour standard, which has now been twice superseded by a generally more protective standard.

[00:48:23] Speaker 04:
And the agency did impose what it considers to be adequate anti-backsliding standards.

[00:48:29] Speaker 04:
It imposed every single anti-backsliding measure that this court

[00:48:33] Speaker 04:
required for the one-hour ozone NACs in the original South Coast decision in 2006 and all of its progeny.

[00:48:41] Speaker 04:
It also included two more additional measures that I believe were implicit in the original ones, but for clarity, it reiterated all of the original anti-backsliding measures for the one-hour NACs as well as those two.

[00:48:54] Speaker 07:
They were both the deadlines, right?

[00:48:57] Speaker 04:
It revoked the NACs in its entirety, including all designations and classifications.

[00:49:02] Speaker 07:
And by changing the deadlines, then that changed the controls of the fees and the bump up.

[00:49:12] Speaker 04:
Well, the deadlines flow from the designations and classifications, but I think your question exposes a fundamental flaw in the petitioner's arguments.

[00:49:24] Speaker 07:
It's actually meant to ask whether there was a flaw in your argument.

[00:49:29] Speaker 07:
Maybe it exposes a fundamental flaw in my understanding.

[00:49:33] Speaker 04:
You know, it's something that's not intuitive to most people who aren't steeped in this day-to-day, but the petitioners' arguments presume that once these requirements are labeled as anti-backsliding measures, they're somehow repealed.

[00:49:49] Speaker 04:
They're somehow taken out of the mix.

[00:49:51] Speaker 04:
And that's deeply unfortunate because EPA was very clear in this implementation rule that by labeling something an anti-backsliding measure, it was not allowing states to take them out of the active portion of their SIPs.

[00:50:07] Speaker 04:
Nothing changed in the SIP.

[00:50:09] Speaker 04:
the states were required to keep them in and continue enforcing and implementing them just as they had prior to revocation.

[00:50:17] Speaker 04:
And those provisions are enforceable under the citizenship provision of the statute as well.

[00:50:24] Speaker 04:
So even if the state tried to decline to implement those measures,

[00:50:30] Speaker 04:
even if EPA did not take immediate action as it's entitled to under this statute.

[00:50:35] Speaker 07:
I just want to be, since I appear to be the one with fundamental misunderstanding, so my understanding, for example, of the fee provision, which is 75.1 DA, that depends on a failure to attain by an applicable date.

[00:50:49] Speaker 04:
That is correct.

[00:50:49] Speaker 07:
And you've extended the date, effectively.

[00:50:54] Speaker 04:
The anti-backsliding measures pertain to a revoked

[00:50:59] Speaker 04:
standard.

[00:51:00] Speaker 07:
Yeah, and you revoked the standard.

[00:51:03] Speaker 04:
We revoked the standard, however, EPA does make determinations of whether or not areas timely attained are revoked next.

[00:51:13] Speaker 07:
They've done so for... But the timeliness question is going to be based on the new deadlines or on the old deadlines?

[00:51:19] Speaker 04:
The timeliness determination is based on the attainment deadlines for the revoked NACs as they existed at the time of replication.

[00:51:29] Speaker 04:
So the question is whether an area timely attained the revoked standard by the originally designated deadline.

[00:51:39] Speaker 04:
You don't look to the deadline for the 2008 standard.

[00:51:42] Speaker 04:
You look to the deadline for the revoked standard.

[00:51:45] Speaker 03:
So is your position that petitioners brief has simply misread the rule?

[00:51:51] Speaker 04:
I mean, they spent an awful lot of time on this.

[00:51:55] Speaker 04:
I think that there are two different points in this.

[00:51:57] Speaker 04:
The petitioners seem to passionately believe that when measures are changed, well, upon revocation when measures are designated anti-backsliding, that they somehow become optional or disappear from the set.

[00:52:11] Speaker 04:
They don't.

[00:52:12] Speaker 04:
They have to continue to be implemented.

[00:52:14] Speaker 04:
And we know that because

[00:52:17] Speaker 04:
We know that because the rule specifically provided for that.

[00:52:21] Speaker 03:
And where will I find that?

[00:52:23] Speaker 04:
I apologize, Your Honor.

[00:52:24] Speaker 04:
I would need to get back to you with the particular explanation.

[00:52:27] Speaker 03:
I mean, that argument to me says that petitioners have misread the rule.

[00:52:30] Speaker 03:
That may very well be, and we explained it.

[00:52:33] Speaker 03:
That's not the way you argued the case, but I just want to be clear that that's, as I understand your argument now, that in fact, I don't know, city of Houston, city of Providence,

[00:52:45] Speaker 03:
if they had to implement control one and two under the 1997 standard, even though they may be deemed to have attained the 2008 standard.

[00:53:05] Speaker 03:
Under this rule, you're saying they still have to implement

[00:53:13] Speaker 03:
Control 1 and 2.

[00:53:15] Speaker 04:
And I think, Your Honor, that we may be talking about different things with respect to... Help me understand then.

[00:53:21] Speaker 04:
Okay.

[00:53:23] Speaker 04:
When the NAICS was revoked and the ozone controls were designated anti-backsliding, nothing changed except for the local anti-backsliding requirement was put on them.

[00:53:35] Speaker 04:
However, for some areas that were still designated as non-attainment for the revoked standard, they nonetheless were in attainment of the 2008 standard, or in the interim since the rule's been issued, they may have requested and been granted a redesignation substitute.

[00:53:59] Speaker 04:
Now, any area that was in attainment prior to revocation is not subject to anti-backsliding, and that is a huge... We're really talking about those areas that did not reach attainment under the 97 standard.

[00:54:14] Speaker 03:
And what are they still required to do?

[00:54:18] Speaker 04:
If they were non-attainment for the 97 standard and also non-attainment for the 2008 standard, they are subject to all of the anti-backsliding requirements.

[00:54:30] Speaker 03:
That's my point.

[00:54:31] Speaker 03:
All right.

[00:54:31] Speaker 03:
Petitioners say that under the rule, as I understand it, as I understand their argument, and the rule candidly, is that if you have attained under the 2008 rule, and I think EPA says,

[00:54:47] Speaker 03:
It's mathematically impossible to be attained under the 2008 if you haven't already done everything that you would have had to do under the 1997 standard.

[00:55:03] Speaker 03:
But as the chief judge has now asked two different times, there's this timing problem.

[00:55:10] Speaker 04:
And I apologize because I must have misunderstood the earlier question.

[00:55:16] Speaker 04:
First, to clarify, the areas the petitioners complain about are areas that were in attainment of the 1997 standard prior to replication.

[00:55:27] Speaker 04:
The areas they call orphan maintenance areas have been formally re-designated as attainment areas for the 1997 standard.

[00:55:34] Speaker 07:
I didn't understand this particular, I mean, I have to admit

[00:55:37] Speaker 07:
Guys have a lot of arguments here, so keeping track of which basket we're in is a little difficult.

[00:55:43] Speaker 07:
But this particular argument I had not understood to depend on orphan or not.

[00:55:49] Speaker 07:
This was the attack on the revocation.

[00:55:52] Speaker 04:
And I understand, and that's what I understood your question to be, and I understand Judge Rogers' question to be, what happens when areas attempt to use one of the two mechanisms for being relieved of anti-backsliding measures?

[00:56:06] Speaker 04:
And it's very easy when one's discussing them to kind of fall into that gray area.

[00:56:15] Speaker 04:
But I would say for areas that

[00:56:19] Speaker 04:
are subject to the 185 fee requirement as an anti-backsliding measure.

[00:56:25] Speaker 04:
Those fee requirements do kick in because the agency makes determinations solely for purposes of effectuating the anti-backsliding measures whether or not an area has attained a revoked standard by the deadline for that revoked standard.

[00:56:43] Speaker 04:
So at some time in the future when the attainment date for the revoked

[00:56:48] Speaker 04:
97 standard passes, the agency will go back and make a determination whether those areas attained or not.

[00:56:56] Speaker 04:
If it makes a determination that they did not, the areas will become subject to the fee report.

[00:57:01] Speaker 07:
Okay, so that is not my understanding of your opponent's understanding.

[00:57:06] Speaker 07:
But we'll ask, and if that is EPA's

[00:57:11] Speaker 07:
position will, of course, put that into the opinion, and that will make it EPA's opinion, the decision.

[00:57:16] Speaker 07:
So if you doubt that, you better tell us sometime soon.

[00:57:20] Speaker 04:
No, we're very, very confident of that, and that is specified in the rule.

[00:57:25] Speaker 04:
To address Judge Rogers' questions, the categories of areas that the petitioners primarily complain about, where they claim that anti-backsliding measures were never imposed and should have been,

[00:57:39] Speaker 04:
were in fact areas that were in attainment of the 1997 standard before that standard was revoked.

[00:57:48] Speaker 04:
One category is what they referred to as orphan maintenance areas and those were formally re-designated to attainment of the 1997 standard.

[00:57:56] Speaker 04:
They were not in non-attainment at the point of revocation.

[00:58:00] Speaker 04:
Then there's a second group which I believe Judge Rogers was asking about

[00:58:05] Speaker 04:
which had been designated non-attainment for the 1997 standard, but were designated as attainment for the more stringent 2008 standard.

[00:58:17] Speaker 02:
Maybe jumping a little bit away from what you're talking about, but I think you're getting there.

[00:58:22] Speaker 02:
We need you also, or I at least, and I think Judge Rogerson is on the same page, we need you to address the statutory requirements, 74 of 7,

[00:58:34] Speaker 02:
the five small Roman letters that the administration may not promulgate a re-designation or re-attainment of a re-attainment area unless those five are complied with.

[00:58:49] Speaker 02:
Now, in your brief, you referred to a couple of them as being in the EPA's panel order.

[00:58:56] Speaker 02:
You will give us a very good citation on where, but are you saying that all five of those are covered in the EPA's decision?

[00:59:04] Speaker 04:
In the redesignation substitute option for taking the anti-backsliding label off of measures in the SIP,

[00:59:13] Speaker 04:
The areas have to make a showing that's based on section 107 D3E, as in Edward, that five criteria list.

[00:59:24] Speaker 04:
It's a showing based on that list.

[00:59:25] Speaker 04:
It is not identical to that list.

[00:59:28] Speaker 02:
The areas have to- Well, do you not have to be identical to this list in order to make a re-indication statutory legal?

[00:59:37] Speaker 04:
If the 1997 standard had not been revoked, then yes, the areas would have to comply with every single item on that list.

[00:59:47] Speaker 04:
But the 1997 standard was revoked, and so was the one-hour standard.

[00:59:51] Speaker 02:
So you're not claiming that the EPA actually complied with subsection E and its five sub-subsections.

[00:59:59] Speaker 02:
You're saying they didn't have to?

[01:00:01] Speaker 04:
That is correct because the standards have been revoked along with all the classifications and designations.

[01:00:07] Speaker 04:
What the agency is doing is not trying to turn the clock back and actually redesignate these areas as attainment for standards that have been revoked.

[01:00:17] Speaker 04:
It is trying to give these areas a means of taking the anti-backsliding label off of measures in their SIP when they can show

[01:00:27] Speaker 04:
that their air quality has actually attained the revoked max for three years due to permanent and enforceable reductions.

[01:00:34] Speaker 02:
It seems to me that more than once in your brief you were suggesting that EPA had in fact complied with the statute.

[01:00:40] Speaker 02:
starting with the summary of argument yesterday as on page six of your brief, where you allude to these requirements and set the statute, which you don't fully set in the list of authority.

[01:00:55] Speaker 02:
But is this the same position you took in your brief, and I misconstrued your position in the brief?

[01:01:01] Speaker 02:
Or is it said all the time that you just didn't have to comply with it?

[01:01:04] Speaker 04:
I apologize if the briefing was unclear.

[01:01:09] Speaker 04:
Because the NAICS has been revoked, it's not possible to actually designate an area as being an attainment or non-attainment of it.

[01:01:18] Speaker 04:
What the agency wanted to do

[01:01:21] Speaker 04:
was allow areas that actually, in fact, are attaining that revoked NAICS to take the anti-backsliding label off of those measures in their SIP.

[01:01:32] Speaker 04:
But it's not allowing those areas to do so until they can make the substantive showings that they would have been required to make.

[01:01:40] Speaker 04:
if that revoked NAICS was still live.

[01:01:44] Speaker 04:
So they have to make a demonstration that they'll maintain attainment of that revoked NAICS for 10 years.

[01:01:51] Speaker 04:
They don't have to issue a formal maintenance plan to that effect, but they have to make that same substantive showing.

[01:01:57] Speaker 04:
they have to substantively establish that their air quality has actually been attaining that revoked NACS for three years and that that attainment is due to permanent and enforceable reductions.

[01:02:13] Speaker 04:
And all of the provisions, all of the control measures that brought those areas to that point should still be in the state SIPs.

[01:02:21] Speaker 04:
None of the measures that got these areas to this point are allowed to be taken out.

[01:02:26] Speaker 04:
Even after the non-attainment or the anti-backsliding labels taken off of a measure, states cannot take those out of their SIPs.

[01:02:34] Speaker 04:
They cannot move them to contingency measures.

[01:02:36] Speaker 04:
They cannot eliminate them unless they seek a separate notice and comment rulemaking

[01:02:42] Speaker 04:
under Section 110L of the Clean Air Act, which requires them to show that either moving such a measure to contingency measures or taking it out of their zip will not interfere with attainment of any standard, not just the revoked ones, or any other Clean Air Act requirement.

[01:03:01] Speaker 04:
And I think that's a very, very important point here, because it's easy to be led to believe that by revoking a standard,

[01:03:10] Speaker 04:
or calling something anti-backsliding, that the states somehow are able to get away with something by taking important control measures out of their SIPs.

[01:03:19] Speaker 04:
None of these processes, not the revocation, not the means of taking the anti-backsliding label off, none of these allow a state to stop implementing all of the control measures that were in their SIP before revocation.

[01:03:32] Speaker 07:
I understand your underlying argument.

[01:03:34] Speaker 07:
Your underlying argument is that

[01:03:37] Speaker 07:
Subsection E, the redesignation subsection doesn't apply at all if the NACS has been revoked.

[01:03:44] Speaker 07:
Is that your position?

[01:03:45] Speaker 04:
That is correct, because the designations and classifications for the revoked NACS are gone.

[01:03:52] Speaker 07:
Was there a moment in time when there was nothing?

[01:03:57] Speaker 07:
That is, where all areas of the United States had no classification at all?

[01:04:02] Speaker 04:
No, Your Honor.

[01:04:04] Speaker 04:
First of all, the new standards

[01:04:06] Speaker 04:
The more stringent standards were promulgated prior to revocation, but the revocation, the imposition of anti-backsliding requirements,

[01:04:18] Speaker 04:
And the removal of designations and classifications all are simultaneous.

[01:04:23] Speaker 07:
Well, I don't understand from the language of the statute how you get to this position.

[01:04:26] Speaker 07:
It just says that administrator may not promulgate a redesignation of a non-attainment area to attainment.

[01:04:32] Speaker 07:
These were non-attainment areas, the ones we're talking about now.

[01:04:36] Speaker 07:
And they are now attainment areas, in your view.

[01:04:39] Speaker 07:
by a substitute re-designation.

[01:04:42] Speaker 04:
No, Your Honor, and again, I apologize if the briefing was unclear.

[01:04:46] Speaker 04:
The agency has never, ever claimed that by that substitute that it actually re-designated anything to attainment.

[01:04:53] Speaker 04:
It's called a re-designation substitute for that reason.

[01:04:56] Speaker 03:
But I'm looking at pages 33, 34, and 35 of your brief.

[01:05:03] Speaker 03:
And the way I read it, and maybe I misunderstood it, something clearly was changing.

[01:05:10] Speaker 03:
All right, and you say, for instance, at that point, the anti-backsliding requirements for the revoked NAC can impose unnecessary burdens.

[01:05:20] Speaker 03:
And then you tell me on page 35 that under the rule, three of the five have been met, and you're silent as to the other two.

[01:05:36] Speaker 03:
And you cite me, refer me to the rule,

[01:05:40] Speaker 03:
and JA 380, which is what the petitioners cite at page

[01:05:50] Speaker 03:
45 of their briefing saying you only cite three of the five.

[01:05:54] Speaker 03:
So your response, as I read it, was, yes, we do cite only three of the five.

[01:06:01] Speaker 03:
And you cite me to 380, which cites the three.

[01:06:04] Speaker 03:
And then you say the process therefore satisfies this court's desire for showing a permanent improvement that would have justified redesignation to attainment, citing

[01:06:16] Speaker 03:
and our DC 777 said third.

[01:06:19] Speaker 03:
But I think the problem is just what the Chief Judge was talking about in terms of the statutory provision.

[01:06:25] Speaker 03:
And I thought that's what the petitioners were focusing on.

[01:06:29] Speaker 04:
Unfortunately, I think that petitioners are trying to either, well, I won't say they're trying to mislead the court.

[01:06:35] Speaker 04:
Perhaps they simply misunderstand.

[01:06:37] Speaker 03:
No, I understand you're not trying to say that.

[01:06:38] Speaker 03:
But in your brief, I don't see the argument that you made today that

[01:06:46] Speaker 03:
the agency was not required to comply with these five requirements.

[01:06:54] Speaker 03:
It simply had to make a showing of those that EPA thought were now needed since the NAC has been revoked.

[01:07:05] Speaker 04:
All five of those criteria are needed if there is a live, unrevoked NACs and in areas being designated as attainment.

[01:07:13] Speaker 04:
for that live, unrevoked NACs.

[01:07:16] Speaker 04:
But here the agency is doing something completely different with respect to a dead, revoked NACs.

[01:07:23] Speaker 03:
It is saying there comes a time when an area... I think we all understand that, but the point was if an area hasn't attained under the revoked standard, it still had to conform and implement

[01:07:43] Speaker 03:
the controls that revoke standard required it to have in order to try to attain under the revoke standard.

[01:07:55] Speaker 03:
So the revoke standard is still around in that sense.

[01:07:59] Speaker 04:
And there I think the agency would disagree and say that upon revocation the old standard was gone along with its designations and classifications.

[01:08:08] Speaker 04:
However,

[01:08:11] Speaker 04:
remained subject to the applicable anti-backsliding measures.

[01:08:17] Speaker 04:
This re-designation substitute that we're talking about cannot be a re-designation to attainment because there no longer is a live 1997 eight-hour NAICS.

[01:08:27] Speaker 04:
There is no longer a live one-hour ozone NAICS.

[01:08:32] Speaker 03:
What the agency is saying is at some future time... So just let me get this down on the ground so I understand it.

[01:08:40] Speaker 03:
If I am a non-attainment area under the 97 NAC, and part of the controls I was required to implement are, I don't know, scrubbers on all monies.

[01:08:56] Speaker 03:
And I haven't done that yet.

[01:08:59] Speaker 03:
EPA promulgates the 2008 NAC.

[01:09:05] Speaker 03:
And I say, I don't want to spend all that money on scrubbers.

[01:09:09] Speaker 03:
because there's some new technology that I think will get me to this 2008 attainment level.

[01:09:21] Speaker 03:
Is your position, I still have to put in those scrubbers or I don't?

[01:09:27] Speaker 04:
If those scrubbers were control measures that are considered anti-vax lighting measures for the 1997 standard,

[01:09:36] Speaker 04:
Yes, you do have to put them in.

[01:09:38] Speaker 03:
So this sentence about unnecessary burden in your brief on page 33, I still have to do that.

[01:09:50] Speaker 03:
even though there's some new technology that might advance me further down the road.

[01:09:55] Speaker 04:
So that is, in fact, the reason why the agency came up with these two mechanisms for... I understand that.

[01:10:03] Speaker 03:
But my point is the statute, at least according to this court's precedent, has a different scheme than the scheme the rule anticipates.

[01:10:14] Speaker 03:
And that's the issue, as I understood, one of the issues the petitioners were raising.

[01:10:19] Speaker 04:
And I think that the disconnect between the petitioners' arguments and the agencies is that the petitioners fundamentally believe that the agency should not be able to revoke the 1997 NACs.

[01:10:33] Speaker 03:
Well, we're beyond that, though, counsel.

[01:10:35] Speaker 03:
I mean, this Court has acknowledged that the agency can't revoke it.

[01:10:39] Speaker 03:
The question is what happens after.

[01:10:41] Speaker 04:
And this re-designation substitute is designed for situations in the future.

[01:10:47] Speaker 02:
Congress didn't say anything about having a re-designation substitute.

[01:10:51] Speaker 02:
They're saying you can't re-designate unless you meet those five criteria.

[01:10:55] Speaker 02:
It doesn't say you can go use some other criteria or some other rationale and

[01:11:01] Speaker 02:
heavy re-designation occur.

[01:11:04] Speaker 04:
This re-designation substitute is only and exclusively a mechanism for lifting anti-backsliding requirements.

[01:11:12] Speaker 04:
Section 7502E simply does not speak to whether

[01:11:19] Speaker 04:
to the lifting of those measures in the future, when an area functionally has attained a revoked next.

[01:11:27] Speaker 04:
It simply doesn't exist.

[01:11:28] Speaker 02:
The testers argued much of their brief based on the understanding that 7207 has to be compiled with, those five precarious.

[01:11:36] Speaker 02:
I don't know anywhere in your brief that you took issue with that proposition, as Judge Rodger pointed out to you.

[01:11:42] Speaker 02:
You actually make reference to the same way we got two of them or we got three of them or something.

[01:11:48] Speaker 02:
what your honor that it is a rather a very different position the world arguments here than what you took in your no your honor the agency would not agree with that because petitioner tell me where the agency would find something that because it's important the agency is not actually re designating any area at all whatsoever through the re designation substitute the agency where in your brief do you use this explanation

[01:12:23] Speaker 02:
your reform.

[01:12:25] Speaker 04:
Well, Your Honor, we would posit that that is, in fact, in the text of the brief, that the agency has created a mechanism to lift anti-backsliding requirements.

[01:12:33] Speaker 04:
It is not attempting to actually redesignate any non-attainment area.

[01:12:39] Speaker 04:
It can't to redesignate.

[01:12:41] Speaker 04:
The designations are gone.

[01:12:43] Speaker 04:
The designations for these areas disappeared when the NAICS was revoked.

[01:12:48] Speaker 04:
There's nothing to redesignate.

[01:12:50] Speaker 02:
Does the agency's decision tell us that?

[01:12:54] Speaker 02:
Is that in there somewhere?

[01:12:56] Speaker 04:
Yes, it is, Your Honor.

[01:12:57] Speaker 04:
That is stated expressly.

[01:12:59] Speaker 04:
This is literally nothing but a mechanism to lift anti-backsliding requirements.

[01:13:05] Speaker 04:
And the agency attempted to ground that, at least somewhat in the statute,

[01:13:10] Speaker 04:
by saying that if we're going to take the anti-backsliding label off of measures, we want to do so only when an area has established firmly that it is attaining the revoked standard.

[01:13:25] Speaker 02:
So we require them to make a demonstration.

[01:13:30] Speaker 02:
If the agency's reasoning is what you're saying now,

[01:13:49] Speaker 02:
Instead of saying, the agency believes this is an incidental approach, which is based on the CA criteria for re-designating the attainment.

[01:13:57] Speaker 02:
And then it brackets in the citation to 107D3E.

[01:14:00] Speaker 02:
And then it goes on.

[01:14:02] Speaker 02:
And it's showing what it would include.

[01:14:05] Speaker 02:
And it's telling what it would include.

[01:14:07] Speaker 02:
I don't see anything there that tells us that we don't think this section, even though we're filing this subsection, we don't think it's applicable.

[01:14:15] Speaker 04:
Well, Your Honor, with the greatest respect, Your Honor, the agency never pretended that it was actually re-designating areas under the substitute.

[01:14:25] Speaker 04:
And it looked to the criteria for re-designation only so that the finding that was required would be one that would substantively establish that the areas were in attainment of a revoked standard.

[01:14:41] Speaker 02:
With the greatest respect, that

[01:14:46] Speaker 02:
I don't really understand what they said, but I don't know that they said that.

[01:14:50] Speaker 04:
Well, Your Honor, there is a reason why what was required was a showing that contains three of those five requirements.

[01:14:58] Speaker 02:
And that was... You're concluding there are two that don't have to be shown.

[01:15:02] Speaker 04:
That is correct, and one of which is

[01:15:06] Speaker 04:
a requirement for a SIP, but of course when a standard is revoked along with the designations and classifications, there's no longer an obligation to have a SIP for that standard.

[01:15:18] Speaker 04:
It's only the anti-backsliding requirements that apply.

[01:15:21] Speaker 04:
So that requirement simply would not make any sense.

[01:15:26] Speaker 02:
Which Roman numeral lower case requirements are you saying are no longer applicable or you didn't have to comply with?

[01:15:34] Speaker 04:
Well, the agency never said that they didn't have to be complied with for purposes of the re-designation substitute, but that makes perfect sense because the agency is not even pretending that it's re-designating an area to attainment.

[01:15:47] Speaker 04:
There's nothing left to re-designate them to attainment up.

[01:15:50] Speaker 04:
The standard is gone.

[01:15:52] Speaker 04:
To re-designate something, there has to be an existing designation and there are no designations and classifications left after revocation.

[01:16:06] Speaker 04:
Now, the second option for lifting the anti-backsliding label from control measures in the SIPP is for an area to be redesignated to attainment of the 2008 standard.

[01:16:25] Speaker 07:
Could you, you're already about almost 15 minutes over.

[01:16:28] Speaker 04:
Oh, I apologize.

[01:16:30] Speaker 07:
Does anybody have any further questions?

[01:16:32] Speaker 07:
You want to just wrap it up?

[01:16:34] Speaker 04:
Yes, I would just like to point out that perhaps what we've been struggling with is a distinction between the two very different methods for removing that anti-backsliding label.

[01:16:46] Speaker 04:
One is for an area to actually in fact

[01:16:50] Speaker 04:
under section 107 D3E to be re-designated to attainment of the more stringent live 2008 standard.

[01:16:59] Speaker 04:
And for that second method to apply, the panel is correct.

[01:17:03] Speaker 04:
Every single one of the five criteria under section 107

[01:17:09] Speaker 04:
e3e does have to be complied with.

[01:17:12] Speaker 04:
The distinction comes from the redesignation substitute, which is not intended to be an actual redesignation, but is instead a method for areas to establish that they've substantively functionally complied with the revoked 1997 standard.

[01:17:31] Speaker 04:
Thank you.

[01:17:31] Speaker 04:
Thank you.

[01:17:33] Speaker 07:
I take it there's no time.

[01:17:36] Speaker 07:
We'll give you another two minutes.

[01:17:38] Speaker 07:
Could you at least begin by clarifying the deadlines question.

[01:17:44] Speaker 06:
The deadlines question.

[01:17:45] Speaker 06:
I'll start with the revocation.

[01:17:47] Speaker 06:
So the key thing is that these key consequences for failure to timely attain have gone away.

[01:17:53] Speaker 06:
Because of the change in the deadlines.

[01:17:56] Speaker 06:
Because EPA revoked the standard, and if you look at JA 194 in the first column, this is codified at 40 CFR part 51.1105 D2.

[01:18:09] Speaker 06:
EPA says it's not making attainment determinations for purposes of doing bump ups or for applying 7509.

[01:18:18] Speaker 06:
Those have just gone away.

[01:18:19] Speaker 06:
What pages are they looking at?

[01:18:21] Speaker 06:
That's JA 194.

[01:18:22] Speaker 06:
It's in the first column.

[01:18:25] Speaker 07:
So you regard that as inconsistent with what we were just told, that deadlines for the previous snacks still apply for purposes of backsliding?

[01:18:36] Speaker 07:
That's inconsistent.

[01:18:37] Speaker 03:
Actually, the argument was not that the deadlines still apply, as I heard it, because I referenced the Chief Judge's questions about that.

[01:18:49] Speaker 03:
The Council's response was simply that if

[01:18:56] Speaker 03:
controls were stated as part of the anti-backsliding mechanism.

[01:19:02] Speaker 03:
Under the 1997 NAC, a jurisdiction would still have to comply with those anti-backsliding provisions.

[01:19:16] Speaker 06:
The things that EPA included as anti-backsliding provisions, yes, but EPA got rid of making these attainment determinations for purposes of bump-ups or for purposes of applying, requiring an area to come up with a tough new attainment plan under section 7509D.

[01:19:32] Speaker 03:
But you heard counsel say nothing changed.

[01:19:34] Speaker 06:
Yeah, things changed, otherwise they wouldn't have revoked the standard.

[01:19:37] Speaker 03:
The SIP didn't change, and that if these, I just need to be very clear about this, that things did change because some controls were dropped, the deadlines were gone.

[01:19:47] Speaker 06:
The deadlines were gone in areas that remained designated non-attainment under the 1997 standard, conformity went away, resource review went high.

[01:19:56] Speaker 07:
We may never be able to resolve this, but I thought I heard the opponent say,

[01:20:02] Speaker 07:
that if at some time in the future somebody who an area that was subject to the 97 acts didn't meet the attainment deadline set previously, then they would be subject to fees.

[01:20:16] Speaker 07:
That's correct.

[01:20:18] Speaker 06:
And that's correct that that's what she said or that's correct?

[01:20:22] Speaker 06:
Correct on both grounds.

[01:20:24] Speaker 06:
It's actually what happens.

[01:20:25] Speaker 06:
But there's these other consequences that did go away.

[01:20:28] Speaker 07:
So which other consequences arising from deadlines?

[01:20:32] Speaker 07:
I thought the two main consequences of deadlines were fees and the bump up.

[01:20:38] Speaker 06:
Okay.

[01:20:38] Speaker 06:
So there's also an obligation to

[01:20:42] Speaker 06:
come up with, if you're a severe or extreme area and you miss your deadline, you have to come up with a new attainment plan under Section 7509D.

[01:20:52] Speaker 06:
EPA got rid of that.

[01:20:53] Speaker 06:
And we saw it actually get rid of that in Los Angeles under the one-hour standard.

[01:20:58] Speaker 06:
It uses the revocation to allow it to completely rewrite the fees control from what Congress actually intended.

[01:21:05] Speaker 06:
And it also gets rid of the bump-bumps.

[01:21:08] Speaker 06:
And we saw that with Dallas.

[01:21:11] Speaker 06:
And that's the key point here.

[01:21:15] Speaker 06:
The deadlines for those graduated control measures to take to occur under the 97 standard are eight years sooner than those graduated control measures are supposed to take place.

[01:21:26] Speaker 02:
And what's the remedy we should do for their failure to do that?

[01:21:29] Speaker 06:
I think the revocation should be vacated.

[01:21:32] Speaker 02:
Do we vacate the entire decision or simply those portions?

[01:21:36] Speaker 06:
Simply the portions that we challenged.

[01:21:39] Speaker 06:
Other portions of the rule are valid and helpful to advancing air quality, including the ban on out of area reductions for progress.

[01:21:48] Speaker 06:
If I could talk about the redesignation substitute.

[01:21:54] Speaker 06:
The example of Houston shows that the redesignation substitute actually and presently reduces the protectiveness of controls in the area.

[01:22:05] Speaker 06:
As I explained before, more sources were subject to new source review before the area got a redesignation substitute.

[01:22:13] Speaker 06:
Now that it's gotten a redesignation substitute, sources are able to put more pollution into the air.

[01:22:19] Speaker 06:
That's at JA 214.

[01:22:21] Speaker 06:
EPA has no authority anywhere to come up with something completely different from any version of redesignation.

[01:22:32] Speaker 06:
It can't pick and choose portions of the statute to apply and not apply, whether as a basis for something to allow an area to shed redesignate anti-vax sliding protections or for any other purpose.

[01:22:48] Speaker 06:
And finally, just on

[01:22:50] Speaker 06:
the broader anti-backsliding problem in the enforcement areas.

[01:22:54] Speaker 06:
EPA said that all areas were attaining at the time of revocation.

[01:22:57] Speaker 06:
This is not so.

[01:23:02] Speaker 06:
In the JA, there's plenty of examples of areas that had slid out of attainment, slid into violation of the 2008 standard.

[01:23:11] Speaker 03:
Was it just talking, that's right, after, but at the actual date they were in attainment?

[01:23:17] Speaker 06:
Well, there's nothing in the record, obviously, about that at that time.

[01:23:20] Speaker 06:
But for the 2014 design values, which are the design values, the measure of compliance with the standard that would have applied as of April 2015 when the rule went into effect,

[01:23:30] Speaker 06:
Milwaukee, Las Vegas, parts of Michigan were all in violation of the 2008 standard, so they weren't actually attaining it at that time.

[01:23:44] Speaker 03:
that had failed to maintain.

[01:23:48] Speaker 06:
Yeah, they had come into attainment at some prior point, but they weren't staying in attainment.

[01:23:54] Speaker 06:
And the act is designed and intended to make sure that areas come into attainment and then stay in attainment.

[01:24:03] Speaker 06:
Any further questions from the panel?

[01:24:04] Speaker 06:
We'll take the case under submission, thank you.