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Case number 16-1413, Natural Resources Defense Council at ELL petitioners versus Environmental Protection Agency at ELL.

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Ms.

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Chia for the petitioners and Ms.

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Chen for the respondents.

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morning.

[00:01:11] Speaker 02:
Good morning.

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Good morning your honors and may it please the court.

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My name is Margaret Shia and I'm appearing on behalf of the petitioners.

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If EPA's definition of natural event ended after the first sentence, petitioners would not be here in court today.

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But the second sentence of EPA's definition allows an unlimited amount and an unlimited proportion of man-made industrial pollution to qualify as part of a natural event.

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Although EPA's- Is that right?

[00:01:44] Speaker 05:
Is it unlimited?

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Have you maybe overstated their position?

[00:01:48] Speaker 02:
Well, in the preamble, the agency says virtually unlimited, so anything above short of 100%, so 99.99% would be enough.

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And although the agency's brief attempts to gloss over this significant loophole, the interpretation is a postdoc interpretation, and it cannot be squared with the actual text of the regulation.

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The crux of the problem here lies in the second sentence of the definition.

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When read on its own, the first sentence appears to require nature to be the predominant cause of both the event and the emissions that together comprise a natural event.

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But the second sentence eviscerates this limitation because it allows virtually any amount

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So if we just have the first sentence, you think it's permissible that even though we're on the natural prong, the agency can permit human activity that plays a little role?

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That does not go too far.

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Yes, that's correct, Your Honor.

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We agree with that interpretation.

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And the second sentence allows a natural event to incorporate virtually any amount and proportion of industrial manmade pollution.

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In the words of EPA's own words at the time of rulemaking, and this is at JA 74, this is the case regardless of the magnitude of the emissions that are generated by these reasonably controlled anthropogenic sources,

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and regardless of the relative contribution of these sources.

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As written, the second sentence thereby creates a significant loophole in the Clinger Act, and it threatens to engulf the narrow exception that Congress intended to create through Section 319.

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Why doesn't the phrase reasonably controlled do the limiting work that you think is necessary?

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Yes or not, Your Honor.

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It does not do so because even when sources are reasonably controlled, they can still emit vast amounts of pollution.

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To give an example, a single coal-fired power plant can generate 16,000 tons

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about tens of pollution sulfur dioxide in a single year.

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And this is a power plant that is subject to reasonable controls.

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And just to put things into perspective, that is 20 times the amount of sulfur dioxide that is produced by all of the sources within the entire District of Columbia within a certain year.

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And so EPA is brief.

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Wait, what does that have to do with how much is admitted during an event?

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That source may be a problematic source.

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Otherwise, we're talking about emission during an event.

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That's correct, Your Honor.

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And EPA's brief represents that the second sentence is essentially about high wind events.

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So that is the context that we're focusing on here.

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So EPA is representing that during a high wind event, if you have power plants that are reasonably controlled,

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that are putting a large amount of industrial pollution into the air, and those emissions are swept up by the high winds, then they can qualify as part of a natural event.

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So you do need that piece of nature that's part of the event, but the emissions component can be coming from anthropogenic sources.

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Suppose the regulation were limited to what I think EPA regards as the paradigmatic event, which is, right, windstorm sweeps through the desert and is kicking up dust all over the place and happens to kick up some dust coming off of Interstate 10 as well as the desert.

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And they say, we're going to just treat that as an act of nature.

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Would you quarrel with that?

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Your honor, if the dust that's coming off of the interstate, the interstate, just composes a little amount of the overall emissions, we don't quarrel with that.

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But if you have the situation where the dust from the desert is 98%, 50%, but 50% of the dust is coming off the interstate, then we do think that's not consistent.

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But if that's true, then aren't you saying that the regulation might be over-broad in some of its applications, even though the core of it, or at least what EPA thinks is the core of it, is probably okay?

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Your Honor, the problem with that is that there's nothing in EPA's regulation that constrains the agency to the interpretation that it's advancing its briefs.

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And we would think that the majority or many of the applications that are impermissible would actually be allowed by the actual regulatory text.

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And I'd like to draw the court's attention to footnote 8 on page 18 of EPA's brief.

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And that's where we think the agency draws a very critical distinction.

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The agency distinguishes between, and we're talking about just high wind events, the agency distinguishes between dust that is lifted off the ground by the wind on the one hand,

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and pollutants that are already airborne at the time that they are entrained by high winds.

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So in the latter category, we have not only particulate matter that is put into the air by smokestacks and other anthropogenic sources, but we also have the large amounts of gaseous pollution that come from reasonably controlled sources, but that never settle to the ground.

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You've actually gone one step beyond where I was in the analysis and that's fine.

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Don't we start with?

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What does the phrase natural event mean?

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I mean, Congress has said a natural event.

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And what's the meaning of that?

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Yes, Your Honor.

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And Congress has made it very plain by use of that term.

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The statute does not provide a definition of the word natural.

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And so there doesn't seem to be any distinction.

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That's critical, right?

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We start with that.

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Congress hasn't defined.

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to phrase natural event.

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So what are we to do then to decide whether it's clear or whether it's ambiguous?

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That's the next step in our reasoning.

[00:08:18] Speaker 02:
Yes, Your Honor.

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And in that situation, the courts have said if Congress has not defined a term, then we go with the ordinary meaning of the term.

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And natural means of, arising from, or forming a part of nature.

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And it defies any ordinary

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understanding of the word natural to think that a cloud of power plant pollution can be natural simply because it's being blown around by wind at 25 miles.

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Is that right?

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When a hurricane ravages an area and kicks up pollutants, that's not a natural event?

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Your Honor, I think that goes back to the idea of reasonable controls and the distinction that EPA draws.

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So if the hurricane... I'm focused right on what does it mean to say something's a natural event.

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A natural event is heard a hurricane that kicks up Pollution is not a natural event it is it certainly is your honor and the reason for that is in EPA's limiting construction Which is when it's nature that is putting pollution into the air and air pollution is defined as emissions that are in the air then that is natural but when you have smoke stacks that are putting the pollution into the air and

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then the nature is not the source of those pollutants.

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Congress made this very clear in the congressional report.

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It said that when you have an ecological process that itself generates pollutants, that can be a natural event.

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The examples that Congress provided were volcano eruptions and forest fires.

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In both of those situations, you have nature putting the pollutants into the air.

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In contrast, Congress made it very clear that when you have climatological occurrences that merely influence pollutant behavior, that that aren't themselves generating the pollution.

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That's not a natural event.

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Where did Congress make that clear?

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In the congressional committee report.

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What should that have to do with our understanding of the use of the phrase natural event?

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Your Honor, this Court has said that the legislative history is appropriate to consider during the first step of the Chevron inquiry.

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And so that informs what Congress plainly meant by the term natural event.

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And it goes to the understanding that the emissions that are imputed to a natural event must not only be naturally dispersed, but also naturally generated or naturally put into the air.

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How do you understand that we count pollution that is already there one minute before the bad occurrence?

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It's emitting, it's there.

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And then we have the high winds.

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Sure, Your Honor.

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This is the piece I'm not really getting.

[00:11:12] Speaker 03:
Are you saying that the government means to discount that?

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Count that?

[00:11:15] Speaker 03:
What?

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In other words, it's already there.

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And then a minute later, there is this event.

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That same pollution in the same volume is there, just swirling more because there are winds.

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What is your understanding about what we do with that?

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Your honor, we're not talking about that body of pollution.

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So if the let's say a smokestack is putting pollution in the air and that would normally be counted by the monitors, right?

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That is not part of the natural event.

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That's just the background emissions.

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So what we're talking about is that the emissions that normally wouldn't be picked up by those monitors because they're being blown in by

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from further away.

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So on a normal wind day, let's say that, the pollution would only be dispersed within a 50-mile radius.

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But on a day when the winds are at 25 miles per hour or above, we have pollution coming in from beyond the 25-mile radius.

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So it's that body of pollution that we're talking about here.

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Does that body of pollution count twice for where it originates and where it's being blown to?

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Yes, Your Honor, it does.

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If it's registering on those monitors where it's coming from, and for those monitors, it would normally be part of the background pollution anyway.

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But so what really matters here is that it's also registering for these monitors where it normally wouldn't reach.

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And the Clean Air Act has provisions that deal with this kind of interstate

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transportation of pollution.

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There's section 110, which makes it very clear that a jurisdiction is responsible for making sure that its pollutants aren't contributing to exceedances in other jurisdictions.

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And so this is part of the scheme that Congress intended, and EPA's enlarged definition of natural event threatens to undermine that scheme.

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And regardless of how reasonable the limiting interpretation that EPA has put forth in its brief is, the problem is that there's no support for that narrowed interpretation in the actual text of the regulation.

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So someone who is just reading EPA's regulation would have no basis to think that the regulation can be applied only in the very narrow way that EPA is now suggesting.

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Well, suppose there was an opinion that confirmed that.

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Yes, Your Honor, if there was an opinion that confirmed that, then that would perhaps provide notice.

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But the courts, both this Court and the Supreme Court, have made it very clear that an agency's interpretation of its own regulation is not entitled to any deference where it is contradictory and plainly inconsistent with the actual text of the regulation.

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And that's the Drake versus FAA case, the Christopher versus Smith claim.

[00:14:04] Speaker 03:
Well, that assumes that it's plainly inconsistent.

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I thought your argument was that their reasonable interpretation is there.

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We understand it, but we can't count on it being applied later.

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And I asked you, well, suppose we say they gave a reasonable interpretation of what they're proposing to do, and that's the basis upon which we deny the petition.

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Your Honor, that is an interpretation that has been offered by the first time by Appellate Council.

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It's not the interpretation that has been offered by the agency itself contemporaneous with the rulemaking.

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There's nothing in the text of the rule that says that.

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There's nothing in the preamble or other documents that say that.

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But most importantly, it's not in the text of the regulation itself, Your Honor.

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And this court and the Supreme Court have made it very clear that unless the understanding is articulated in the plain text of the regulation, that cannot be credited to the agency at this point.

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There's also an interpretive presumption that we construe, we try to construe text to make it lawful rather than unlawful.

[00:15:17] Speaker 04:
So if that limiting construction of the regulation were necessary to make it a reasonable interpretation of the statute in a chevron sense, why wouldn't we impose it rather than just throw the whole thing out?

[00:15:33] Speaker 02:
Your Honor, the court has addressed situations like this before.

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So, for example, in the Cuomo v. Clearinghouse case, you have a regulation that's very broad, and then you have an agency interpretation that is narrower and perhaps reasonable, and that narrower interpretation could fit within the broader interpretation.

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However, the court found there that when you're just looking at the broad regulation, it's inconsistent with the narrow one being advanced by the agency because someone reading the broader actual language would not have any idea that you could actually, that what the agency meant was limiting construction.

[00:16:10] Speaker 03:
And so this is... You have a problem there because you're talking about a limited population of people

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for whom we would worry about giving notice, and they would all have notice.

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If there was an opinion that said, that's all this means, there's no problem.

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Because notice has been given, and the people who are fighting about this would understand that the court said, that's all this regulation means.

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I mean, I can understand in other cases where your argument about notice would be compelling.

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It wouldn't be compelling here.

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If in spite of the Drake and the Christopher cases, if this court does decide that the agencies... You are right that you can find cases that say what you're saying, but we can also find cases...

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that do it the other way as well, which say there's clearly a limiting construction.

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We don't see how you can read it otherwise, because otherwise it would make the regulation nonsensical to go further.

[00:17:06] Speaker 03:
I mean, there are cases that say that as well.

[00:17:09] Speaker 02:
Yes, then in your honor, that's correct.

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And an opinion that memorializes or gives legal effect to the agency's limiting construction would probably put the public and others on notice of that.

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But we would ask the court to make that clear in its opinion so that the agency is not free to change its interpretation at some future point.

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Great.

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Unless there are further questions from my colleagues, we'll give you back two minutes.

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Thank you.

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If you're from the government now.

[00:17:53] Speaker 01:
Good morning and may it please the court, my name is Sue Chen and I represent the United States.

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With me today is Emily Seidman from EPA's Office of General Counsel.

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There's been a lot of confusion this morning about the meaning of omission, so I'd like to make that clear before turning to explain how the definition works and then briefly addressing Petitioner's argument that EPA's interpretation is somehow post hoc rationalization.

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As he explained at JA-38 and 101, emissions means aerodynamic entrainment.

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So in plain English, to emit means to put into the air, to make something airborne.

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So for example, wind sweeping up dust from the ground is generating emissions and those emissions are said to result from the wind.

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a factory that releases pollutants into the air through its smokestack, perhaps, is generating emissions.

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And those emissions are said to result from the factory.

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And that's true even if later on wind comes by and transports those emissions elsewhere, because that does not change the fact that it was the factory, not the wind, that generated the emissions, that it was the factory, not the wind, that released the pollutants into the air.

[00:19:06] Speaker 03:
So- Whether it's within the region or elsewhere.

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whether it's within the region from which the smoke originally emitted or transported to another region.

[00:19:16] Speaker 01:
That's true regardless where it ends up.

[00:19:18] Speaker 03:
But you're saying your rule doesn't change that.

[00:19:20] Speaker 03:
That still counts?

[00:19:22] Speaker 01:
That the, in that case, it's still the factory that's considered to have generated emissions.

[00:19:26] Speaker 05:
Yes, Donna.

[00:19:27] Speaker 05:
Everything coming out of the smokestack gets counted?

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As the factories

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As emissions generated by the factory, it's not the emissions generated by the wind.

[00:19:36] Speaker 01:
I want to be clear about that.

[00:19:37] Speaker 01:
All right.

[00:19:39] Speaker 05:
So with that in mind... But the point is it gets counted, right?

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Those emissions are counted.

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They're not excluded from the report.

[00:19:48] Speaker 05:
They're not excluded from the data, right?

[00:19:51] Speaker 01:
That's right.

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If the emissions generated by the factory ends up in your monitor, that's going to get recorded.

[00:19:56] Speaker 01:
It's going to record as part of routine emissions.

[00:19:59] Speaker 01:
So, with that in mind, let's turn to the definition of natural event.

[00:20:04] Speaker 01:
Now, there are two sentences in the definition, and you have to read them both, and you have to read them in the order in which they appear.

[00:20:11] Speaker 01:
So, start with the first sentence, which says, natural event means an event and its resulting emissions, which may recur at the same location in which human activity plays little or no direct causal role.

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there are two basic elements required for a natural event.

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You need an event and you need its resulting emissions.

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Think of these two elements as a door to the universe of potential natural events so that if you don't have an event, you can't get in the door.

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If the emissions that you're talking about

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did not result from or not generated by the event, you can't get in the door either.

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And this is where petitioners trip up.

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They completely ignore that requirement.

[00:20:57] Speaker 01:
The routine industrial emissions they're worried about cannot get past the door.

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And why is that?

[00:21:03] Speaker 01:
Because routine industrial emissions are not an event.

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An event is a deviation from normal conditions.

[00:21:11] Speaker 01:
And routine industrial emissions are routine.

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They are the emissions generated by industrial sources operating as a matter of course.

[00:21:20] Speaker 01:
So there's no event here.

[00:21:21] Speaker 01:
And for the same reason, routine industrial missions did not result from an event.

[00:21:27] Speaker 01:
And so routine industrial missions get shut out of the definition.

[00:21:30] Speaker 01:
You don't even proceed to the second sentence.

[00:21:33] Speaker 01:
Petitioners skip straight ahead to the second sentence, and they read it to say that routine industrial missions are a natural event or can be part of a natural event, and they're wrong for two reasons.

[00:21:45] Speaker 01:
The first is that their interpretation ignores the first sentence's threshold requirement that you need an event and its resulting emissions.

[00:21:55] Speaker 01:
Nothing in the second sentence exempts you from that requirement, and as I've explained, routine industrial emissions do not satisfy that requirement.

[00:22:04] Speaker 01:
So for this court to accept petitioner's interpretation, you would have to strike out the words an event and its resulting emissions from the first sentence.

[00:22:14] Speaker 01:
The other reason that they're wrong in their interpretation is that the second sentence does not actually talk about routine industrial emissions.

[00:22:23] Speaker 01:
The second sentence says, for purposes of the definition of a natural event, anthropogenic sources that are reasonably controlled shall be considered to not play a direct role in causing emissions.

[00:22:36] Speaker 01:
What are we talking about there?

[00:22:37] Speaker 01:
I'm sorry?

[00:22:38] Speaker 03:
What are we talking about there?

[00:22:39] Speaker 01:
That's what I'm getting to, Your Honor.

[00:22:40] Speaker 01:
These emissions.

[00:22:42] Speaker 03:
I'm getting excited, waiting.

[00:22:44] Speaker 01:
I'll put you out of your suspense.

[00:22:46] Speaker 01:
These emissions refers back to the events resulting emissions in the first sentence because that is the only other place in the entire definition that talks about emissions.

[00:22:57] Speaker 01:
Now, under the first sentence, the emissions have to result from not just any event,

[00:23:02] Speaker 01:
Because if you read on, you'll see that the event has to be one in which human activity plays little or no direct causal role.

[00:23:10] Speaker 01:
In other words, an event that's predominantly natural, what we call an act of nature.

[00:23:15] Speaker 01:
So the emissions have to result from, have to be generated by an act of nature.

[00:23:20] Speaker 01:
And you put all this together and what the second sentence says, and all that the second sentence says,

[00:23:26] Speaker 01:
is that reasonably controlled anthropogenic sources do not play a direct causal role in the emissions generated by an act of nature.

[00:23:38] Speaker 01:
It does not say anything about routine industrial emissions, and it certainly does not say anything about routine industrial emissions or any other human activity being a natural event.

[00:23:49] Speaker 01:
As we explained in our brief, the purpose of the second sentence is to clarify this unique situation

[00:23:56] Speaker 01:
where you have emissions generated by the high-speed winds that include particles that originated from an anthropogenic source.

[00:24:06] Speaker 01:
And it tells you in that situation whether the anthropogenic source played a direct causal role in the emissions generated by the wind

[00:24:15] Speaker 04:
Suppose you have a different example.

[00:24:17] Speaker 04:
You have a natural event causing emissions, very substantial emissions whose source was

[00:24:29] Speaker 04:
human-made.

[00:24:31] Speaker 04:
So, I don't know, a bolt of lightning hits a reasonably controlled container of toxic gas and as a result the only emissions resulting from that event are the toxic gas stored in the container.

[00:24:51] Speaker 04:
That seems a little different from the wind in the desert case.

[00:24:57] Speaker 01:
So in that situation, I am not sure if it would be considered a natural event or whether it would be considered an event caused by human activity unlikely to occur.

[00:25:05] Speaker 01:
This is a very fact and sense analysis.

[00:25:07] Speaker 04:
Yeah, but your regulation would classify that one as natural, even though it seems like it's a much closer question.

[00:25:17] Speaker 01:
That would, I think, depends on the facts.

[00:25:19] Speaker 01:
But I think to get to your question, maybe another hypothetical that's less problematic would better illustrate the point that you're concerned about just process.

[00:25:29] Speaker 01:
So in our dirt road example, let's say all the dust swept by the wind came from the dirt road.

[00:25:37] Speaker 01:
In that case, provided the dirt road was reasonably controlled, that would be a natural event.

[00:25:43] Speaker 04:
Yeah, it just that hypothetical seems unlikely to me.

[00:25:47] Speaker 04:
And the more realistic hypothetical with the dirt road, most of the dust will come from the desert.

[00:25:53] Speaker 04:
And that's part of the intuitive appeal of the regulation.

[00:25:59] Speaker 04:
But the regulation isn't limited to that kind of case.

[00:26:04] Speaker 04:
natural natural your your paradigmatic cases natural event emissions are natural right the dust from the desert as opposed to the dust from the road.

[00:26:17] Speaker 01:
Right but in your example I it's not.

[00:26:21] Speaker 01:
It could be the case that because the human source, well, in your case with the explosion, I think it is possible that it would be considered an event caused by human activity unlikely to recur.

[00:26:36] Speaker 01:
But even if it is evaluated under the natural events framework, it would still be the case that without the natural event, you wouldn't have all that pollutants in the air

[00:26:51] Speaker 01:
in the first place.

[00:26:53] Speaker 01:
And remember the context that we're talking about here is the Clean Air Act.

[00:26:58] Speaker 03:
You wouldn't have it, and therefore what?

[00:27:01] Speaker 03:
I want to make sure I understand your conclusion.

[00:27:04] Speaker 03:
You started a sentence and then moved on to another thought.

[00:27:07] Speaker 03:
You said, what do you mean to say?

[00:27:10] Speaker 01:
So in the example of a lightning strike,

[00:27:17] Speaker 01:
you would have an act of nature, which is the lightning strike, and you would have, and that event then caused pollutants to get in the air.

[00:27:35] Speaker 01:
So you would have its resulting emissions.

[00:27:38] Speaker 01:
And under the second sentence, if those emissions contain particles that came from an anthropogenic source,

[00:27:47] Speaker 01:
then, and that source was reasonably controlled at the time the event happened, then you would have an actual event here.

[00:27:57] Speaker 01:
And that makes sense because it was the, it was the act of nature that put- You would still say, you would still say the emissions were caused by the lightning strike.

[00:28:08] Speaker 01:
Because it was, if that, if the lightning strike was what put the pollutants in the air, yes.

[00:28:14] Speaker 01:
Yes, that is the analysis.

[00:28:18] Speaker 05:
And remember, we're talking about air pollutants... Just to be clear, but if that lightning strike had hit a smokestack, where pollutants were already going in the air, then... I'm sorry, if the pollutants were already in the air?

[00:28:29] Speaker 01:
Yeah.

[00:28:30] Speaker 01:
No, then that would be counted as the emissions generated from the factory and would not be part of the natural wind analysis.

[00:28:37] Speaker 01:
So the question really is, what put the pollutants in the air?

[00:28:42] Speaker 01:
I'd like to very briefly address petitioner's argument that EPA's interpretation is post hoc rationalization.

[00:28:50] Speaker 01:
There is nothing post hoc about any of this.

[00:28:53] Speaker 01:
EPA's reading of its natural event definition reflects the agency's well-established position that although natural events can include some minor human component, human activities

[00:29:05] Speaker 01:
are not natural events.

[00:29:06] Speaker 01:
And you can trace this position back over 20 years.

[00:29:10] Speaker 01:
The 1996 guidance at JA-202-203 EPA recognized that natural event can include human contribution only under very limited and narrow circumstances.

[00:29:22] Speaker 01:
In its 2007 definition,

[00:29:24] Speaker 01:
EPA similarly explained that a natural event is an event in which human activity plays little or no direct causal role.

[00:29:32] Speaker 01:
And in its response to comments in this rulemaking at JA 147, EPA addressed the natural event definition, and it said, under this definition, repeated and long-term human activity would preclude the event from being natural.

[00:29:48] Speaker 01:
So EPA's definition and its interpretation of that definition articulate the agency's long-standing and considered judgment about the permissible relationship between natural events and human activities.

[00:30:02] Speaker 01:
I'd like to leave the court with one final thought, which is what you have heard here today are two starkly different readings of the natural event definition.

[00:30:11] Speaker 01:
Petitioner's reading ignores key parts of the regulatory text and produces this absurd result that human activities are natural events.

[00:30:20] Speaker 01:
EPA's reading, in contrast, addresses every word of the definition and results in a sensible treatment of natural events that's consistent with its long-standing position.

[00:30:31] Speaker 05:
So, Simi, you've jumped right over the Chevron 1 analysis.

[00:30:34] Speaker 05:
You're just assuming that there's ambiguity here, and your argument strikes me as being all in Chevron 2 land.

[00:30:40] Speaker 05:
Is that right?

[00:30:41] Speaker 05:
Do you want to say anything about Chevron 1, why you think this might be ambiguous, or is it a gap filler?

[00:30:47] Speaker 01:
Well, the term natural event is not defined in the statute, and the term natural is... It is in the dictionary, right?

[00:30:54] Speaker 01:
But that doesn't tell you what natural really means.

[00:30:57] Speaker 01:
One of the first things they said today was that it's okay for natural event to include some minor human component.

[00:31:04] Speaker 01:
That right there tells you that it's not all that clear what natural means.

[00:31:09] Speaker 01:
Unless the court has any further questions?

[00:31:11] Speaker 01:
Thank you.

[00:31:25] Speaker 02:
Your Honor, there are just three points I'd like to make.

[00:31:29] Speaker 02:
The first is that if, as Judge Edwards suggests, the Court believes that EP's interpretation is reasonable, petitioners think that that would address the problem, but we would ask the Court to memorialize that in a written opinion because we don't think that the actual text of the regulation conveys that limited interpretation.

[00:31:50] Speaker 02:
And we would wish that the agency is held to that narrow interpretation.

[00:31:57] Speaker 02:
The second is that, and related to the first, is the actual text of the regulation does not say what EPA is now saying that it says.

[00:32:06] Speaker 02:
EPA's council had mentioned JA088 and the quote talking about routine emissions generated by and transported from anthropogenic sources are not exceptional events.

[00:32:17] Speaker 02:
But again, that's just talking about normal emissions on days without a natural event.

[00:32:23] Speaker 02:
It's talking about the smokestack emissions on days when you don't have high winds.

[00:32:27] Speaker 02:
and the universe of the events that we're concerned about are the high wind days when you have the pollution that's being blown over and that's being considered part of the natural event.

[00:32:37] Speaker 02:
And the agency says that this new interpretation is well established.

[00:32:42] Speaker 02:
It talks about the 2007 regulation.

[00:32:45] Speaker 02:
But it's critical to note that the second sentence that's in EPA's 2016 definition, the current definition, that second sentence was not in the 2007 regulation.

[00:32:58] Speaker 02:
And all that the 2007 regulations said was something very similar to the first sentence of EPA's current definition, which is that nature must play the predominant role in the natural event.

[00:33:10] Speaker 04:
I'm sorry, how is your broader reading consistent with the word resulting in the first sentence?

[00:33:18] Speaker 04:
Natural event means an event and its resulting emissions.

[00:33:24] Speaker 04:
So if you have the smokestack that is emitting pollution regardless, and then you have the very high wind day, I would think those emissions will not be resulting from the event.

[00:33:40] Speaker 02:
Your Honor, that is certainly one plausible reading of that word.

[00:33:44] Speaker 02:
And again, if the court were to accept that, we would just ask that it memorialize it.

[00:33:48] Speaker 02:
But we believe that, as written, when you're reading the phrase resulting from, that the wind, that the pollutions that are already there, that are picked up.

[00:33:56] Speaker 04:
Would that be sufficient to address your concerns in this case, if we said that much and no more?

[00:34:02] Speaker 02:
Yes, Your Honor, it would be.

[00:34:05] Speaker 02:
Thank you.

[00:34:06] Speaker 05:
Thank you very much.

[00:34:07] Speaker 05:
The case is submitted.