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Case number 18-115, Advanced Oil and Fuels Association of the Visionaries vs. Environmental Protection Agency at HAL.

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Mr. Peterson for the Visionaries.

[00:00:42] Speaker 03:
Good morning.

[00:00:43] Speaker 03:
If it may please the court, I'm Rafe Peterson.

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I'm here on half of the Advanced Biofuels Association.

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With apologies to the court, I'm going to occasionally read directly from the text of the statute in this case.

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It's because I think precision is kind of important related to the claims we have.

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So in 2005, when Congress enacted the RFS program, it was aware that small refineries might initially face some problems with compliance.

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And so what it did is it enacted a series of what this court has called a three-tiered series of exemptions, which were supposed to be a bridge towards compliance.

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But all along, as noted in the Hermes case, this was to be a bridge towards compliance, not permanent compliance.

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And that is evidence.

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Did you get whether we have jurisdiction of this claim or not?

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Venue?

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Sure, Your Honor.

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I'm going to read jurisdiction.

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Jurisdiction.

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Reviewing jurisdiction to review final actions.

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Sure.

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I believe we have final actions.

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Final actions of federal agencies.

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Now, I looked in petition for review, and you don't state any final action.

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You ask us to review.

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There's no citation to a rulemaking or an adjudication.

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I looked at the beginning of your brief where you afforded the opportunity to again say what ruling is under review.

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I don't find any

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rulemaking or education there, I looked at the conclusion of your brief to see what relief you were asking.

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I didn't see you asking us to vacate any such thing.

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What final action is it that we're being asked that we have jurisdiction to review?

[00:02:12] Speaker 03:
Sure, Your Honor.

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Thank you.

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So under Appellation and Power, actions don't have to be formal published, you notice, in Commons in order to be

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What unpublished action are you asking us to review?

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So it is the self-described change of methodology that was adopted by the EPA.

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When was it adopted?

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It appears to have been in May 2017.

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Was it adopted in something you're asking us to review?

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It was adopted through a series of grants of exemptions to companies from the requirements of this program.

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Did you ask for a review of any of those?

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We have asked for a review of the change in methodology, and the change in methodology... Did you ask for a review of any of those exemptions that were granted?

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No, we're not challenging the specific exemptions, Your Honor.

[00:03:02] Speaker 05:
Well, you understand that we have only that jurisdiction that the statute gives.

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This jurisdiction is not given in gross.

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We don't have jurisdiction to review just abstract questions of law.

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We can review final actions.

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And if there's not a final action that you

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can tell us we're reviewing, it's hard for me to see where we have jurisdiction.

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Sure, Your Honor.

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So new statutory interpretations disclosed in adjudications can be challenged.

[00:03:28] Speaker 05:
Yeah.

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So what adjudication are you asking us to review?

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We're asking to review the change of itself.

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The change speaks for itself, Your Honor.

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So there is a definition.

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Do you have any case

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where this court or any other has recognized a final action based on the free-floating use of a Newton's statutory interpretation?

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Well, Your Honor, we don't believe that it's free-floating.

[00:04:00] Speaker 05:
Well, as far as your brief, as far as your petition to review, which is what's supposed to rank before us, as far as your brief, which is what we're supposed to learn from, as far as your prayer for relief,

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It appears to be free-flowing.

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You're not asking us to vacate any decision.

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Well, Your Honor, under the Whitman v. Trucking Association case, what the court says is you look at the agency behavior to determine how it's filed.

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What was the issue in that case?

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What was the court reviewing?

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I don't recall, Your Honor.

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Interim regulations is the answer.

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Right.

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And in this case.

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And here we have no final or interim regulations

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nor do we have informal policy statements or anything akin to those, right?

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We have a statement of a legal rule that is embedded in individual agency adjudications.

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And the normal way that gets reviewed is on a challenge to the adjudication, which you haven't done and indeed you couldn't do because you wouldn't be in this court if you had framed your challenge that way.

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And above and beyond the individual adjudications, we just have a legal proposition in the ether.

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Well, Your Honor, with all respect, I don't think it's in the ether.

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So there's a definition of disproportionate economic hardship.

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And that has been used since 2011 for making these determinations consistent with the statute.

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In the individual adjudication.

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In the individual adjudication.

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In case you're not challenged.

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And then the agency announced and has followed this ever since that we are changing our methodology.

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So the agency has made a clear statement that they're changing their methodology and then has proceeded since then in 85 to 100 cases.

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None of which you brought to us.

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Utilizing that

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Well, the problem, I think what makes this a little bit different too is the manner in which they release this information.

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So this has all been done under a veil of secrecy because they maintain that all of these decisions are subject to confidential business information.

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So it's a little harder.

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We're at a little bit of a disadvantage because we were forced to

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figure out how this happened through... Fair enough, but these are informal adjudications.

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There's no APA or other requirement of public notice, right?

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That's correct, but I don't think that is... You may be in a tough position to figure out what's happening, but you still have to point to an identifiable agency action that you're challenging.

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And we can point to two, Your Honor.

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So the first one is that... Well, you haven't pointed to it in your petitions review or in your brief.

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You're not asked to review any decision.

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We're pointing to the decision to change the methodology by which the agency considers petitions for review.

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And the methodology is laid out

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very clearly in one paragraph that is repeated throughout all its decisions, then eventually, as of this year, it's simply used to resolve 31 petitions all at once.

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So it is a change in methodology whereby the agency no longer considers, it considers disproportionate economic hardship differently.

[00:07:21] Speaker 08:
And the second major change is that while the statute requires... Oh, before you do that, you said there were two places where this was announced?

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I thought I heard you say there were two specific things that you were challenging.

[00:07:38] Speaker 08:
Yes, I am.

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And those, can you just give us the general pages?

[00:07:41] Speaker 03:
So yeah, sure.

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So the second thing that we're challenging is the notion of extensions of exemptions.

[00:07:48] Speaker 08:
No, put that aside.

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I didn't think they were making this argument about that one.

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But as to the new way of assessing disproportionate hardship,

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You say there was a paragraph that now shows up in every decision.

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And where was that paragraph first announced?

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It was first announced, and it's dated May 2017.

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It's a footnote 10.

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And what the agency says is, we've always done way, but we are changing our approach.

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Can you just point me, is it in the JA that you're quoting from, from your brief?

[00:08:24] Speaker 03:
Yes, it is.

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I apologize.

[00:08:26] Speaker 03:
Yes, it is.

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It is an adjoint appendix and it's repeated.

[00:08:30] Speaker 03:
It's 260, 276.

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260 is the one that made its way into the Fourth Circuit opinion.

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So it's 260, 276, and 294.

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It's always in note 10.

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But all of these... I'm sorry.

[00:08:43] Speaker 07:
Can you just give me your numbers one more time?

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260, 276, and 294 are good examples.

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All of these are...

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statements of legal assertions in individual adjudications?

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Well, what it really is, is it's a revised methodology by which our petition will be considered going forward.

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So they have stated that prior to this, and it's their language and their briefs, prior to this they used the Department of Energy study

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which they have to under, you know, required by the statute.

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They would consult with the Department of Energy, and then they can use other economic decisions.

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But as they stated in some prior decisions, we consider the small refinery could not show disproportionate economic hardship without showing an effect on viability.

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We are changing our approach.

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From that moment forward, in every single petition that they have received.

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What's the vehicle for announcing that change?

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It was announced in each one of these decisions.

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And in the end, most recently, with the 2018 obligations, they simply granted all 31 petitions based on a three-page memorandum.

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So it's interesting because the pushback we've always gotten on this is that, well, these decisions are individual petitions, and they're very highly fact-specific.

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But I think that argument kind of crumbles when you take a look at the fact that as of 2018, they're not even looking at individual.

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They are dispensing gross and issuing all at once.

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The APA defines agency action with specific terms, which are rule, order, license, sanction, relief.

[00:10:38] Speaker 02:
Which of those is

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whatever it is you're asking us to review, this policy that you're asking us to review.

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So it's the order.

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So the APA does not only apply to rulemaking.

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It's the consummation of the decision-making process.

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And our belief is that the decision-making process for how they would resolve petitions at some point.

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And we don't know when or why or how.

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We've never been provided an administrative record of what led to this decision.

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No, I know.

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But you need to point to a rule order of license sanction relief or something equivalent.

[00:11:17] Speaker 03:
Well, it's a relief, because they're suddenly providing all of these parties relief from the statute based on what they've called a revised methodology.

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What is the relief other than the individual order?

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And they're providing relief to a refinery that is seeking and obtains this exemption.

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Correct.

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And it's a decision from which that has legal consequences.

[00:11:42] Speaker 02:
But you're not seeking review of that.

[00:11:45] Speaker 08:
Is your position?

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that someone higher up announced a rule that only manifests in each of these individual decisions?

[00:11:57] Speaker 03:
Yeah, I mean, that is our theory.

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The problem is there's nothing supporting what led to this change.

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They themselves, the agency has stated that it's changed a little bit.

[00:12:05] Speaker 05:
That's also our problem.

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If we had a final decision, if you brought us including one of these cases, perhaps, we could look back and see whether that's true in the record or not.

[00:12:14] Speaker 05:
But since we don't have

[00:12:17] Speaker 05:
a final decision before it, we don't know whether it had the proper underpinnings or not, since there's not one that you brought before it.

[00:12:23] Speaker 03:
Well, Your Honor, it is the May 4th, 2017 articulation that they have now changed their standard.

[00:12:31] Speaker 05:
And it's then... The articulation is not in the APA decision.

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The APA definition that Judge Katz has written to you.

[00:12:37] Speaker 03:
But statutory interpretations, which this is, it's clearly a statutory interpretation, disclosing adjudications can be challenged.

[00:12:45] Speaker 08:
Have you filed a petition for review from the August 2019?

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Did you file a petition for review from the August 2019 where they did the 31?

[00:12:54] Speaker 08:
Was August 2019 where they did the 31?

[00:12:56] Speaker 08:
No.

[00:12:57] Speaker 03:
No, we did not.

[00:12:58] Speaker 03:
We weren't aware of that.

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When did you become aware of that?

[00:13:02] Speaker 03:
So we have an open request here that we've been kind of a little bit battling with EPA over.

[00:13:08] Speaker 08:
When did you become aware of it?

[00:13:10] Speaker 03:
We became aware of it.

[00:13:12] Speaker 03:
There was a dashboard when it came out on the dashboard, and then it was announced in another case in the Sinclair case.

[00:13:17] Speaker 08:
I'm asking for kind of a date.

[00:13:18] Speaker 03:
We became aware of it.

[00:13:20] Speaker 03:
And so it was October 19th, so just a few days ago.

[00:13:25] Speaker 03:
OK.

[00:13:25] Speaker 03:
We knew the specifics and had access to that memorandum.

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And why?

[00:13:28] Speaker 08:
So EPA agrees that's a, at least as to those 31, that's a national type decision that would be brought here.

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the workable thing for you to do is to file a petition for review from that, then you'll have something you can point to.

[00:13:47] Speaker 08:
They admit it's a national decision.

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Otherwise, the difficulty is, I understand your concerns about secret law, but if your theory is that somebody higher up said, use this,

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And you have evidence you would point to because it shows up in all these different decisions.

[00:14:06] Speaker 08:
But what are we, right, we're not going to do fact-finding interview people.

[00:14:11] Speaker 08:
I don't know, I don't know what, as Judge Santola was saying, I don't even know what

[00:14:18] Speaker 08:
we grant or vacate or exactly what we're analyzing unless we have more concrete information.

[00:14:25] Speaker 03:
Sure, Your Honor.

[00:14:26] Speaker 08:
Do discovery here.

[00:14:27] Speaker 03:
And maybe I can clarify that.

[00:14:29] Speaker 03:
So we did provide that to the court as soon as we had it as evidence further that this methodology was adopted.

[00:14:36] Speaker 03:
It's used in this document.

[00:14:37] Speaker 08:
You provided that.

[00:14:38] Speaker 08:
You're talking about the August 2019?

[00:14:39] Speaker 08:
Yes.

[00:14:40] Speaker 03:
Yes, that has been filed.

[00:14:41] Speaker 08:
But that would now seem like, I don't want to say whether you could or not or whether it would count,

[00:14:47] Speaker 08:
I don't know how your petition for review, which was filed long before that decision came out, would encompass an agency action that happened afterwards, would it?

[00:14:58] Speaker 03:
I couldn't tell, your petition review wasn't clear to me that you're trying to review everything that keeps happening while the petition review was based on the fact that we didn't have any, we didn't know what the agency action was because the market for these products, these rings, crashed.

[00:15:16] Speaker 03:
And companies were slowly disclosing that they had gotten extensions of exemptions.

[00:15:21] Speaker 03:
And we've argued all along that they can't extend something that they didn't have, and that's in our briefs.

[00:15:25] Speaker 03:
So we filed base a little bit on

[00:15:27] Speaker 08:
What relief do you want for your petition?

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If everything went your way, would you like us to vacate something?

[00:15:35] Speaker 03:
Sure.

[00:15:36] Speaker 03:
What are we vacating?

[00:15:37] Speaker 03:
So we want a declaration that EPA... Just that.

[00:15:41] Speaker 08:
What are we vacating?

[00:15:42] Speaker 03:
You're vacating their revised methodology for determining disproportionate economic hardship.

[00:15:48] Speaker 08:
And the citation we give for that is?

[00:15:52] Speaker 03:
You cite to the joint appendix where it's utilized.

[00:15:56] Speaker 08:
So we cite to this individual decision.

[00:15:58] Speaker 08:
Yes, and it's used.

[00:16:00] Speaker 08:
If we vacate the test applied, I assume you put everything on the mirror.

[00:16:07] Speaker 08:
It's just hypothetical.

[00:16:08] Speaker 08:
Sure.

[00:16:09] Speaker 08:
The test applied in an individual case granting an exemption, what is the consequence to that individual company's exemption?

[00:16:18] Speaker 08:
Can we vacate the test without vacating their individual exemption?

[00:16:22] Speaker 03:
So I think it would be remanded back to the agency and then the agency... What are we remanding?

[00:16:28] Speaker 08:
What?

[00:16:28] Speaker 08:
The national rule or the individual exemption decision?

[00:16:31] Speaker 03:
You're remanding back the national rule with instructions.

[00:16:35] Speaker 08:
What I'm asking you is what happens to that individual exemption decision?

[00:16:38] Speaker 03:
So that I think then EPA would have the discretion and they would have to make a determination not using that standard of whether or not these companies still... They would have to redo that individual refiners exemption decision?

[00:16:49] Speaker 03:
Yes, I think they would because I think it's

[00:16:51] Speaker 08:
But that sounds like the type of thing that's supposed to be brought in a regional circuit.

[00:16:55] Speaker 03:
Well, in this case, though, I mean, the reason why we brought it here, it has national applicability.

[00:17:00] Speaker 03:
They've never wavered from the statute.

[00:17:02] Speaker 02:
Only if EPA certifies it as such.

[00:17:05] Speaker 03:
Well, in this case, though, then, it's a little bit of gamesmanship by EPA.

[00:17:10] Speaker 02:
So EPA... We look at the face of the order before us.

[00:17:18] Speaker 02:
Correct.

[00:17:19] Speaker 02:
To decide whether it's national or local.

[00:17:22] Speaker 02:
So on the face of all of these, these orders apply to one and only one refinery.

[00:17:28] Speaker 02:
And your theory is, well, yes, but the underlying rationale is national in scope.

[00:17:36] Speaker 02:
And the statute specifically addresses that scenario by saying an individual order can go on the national track if the reasoning is national, if and only if EPA certifies it as such.

[00:17:50] Speaker 02:
And they haven't done that here.

[00:17:51] Speaker 03:
Well, in this case, Your Honor, EPA, when it uses that language, it doesn't say we're changing our approach for this individual facility.

[00:17:59] Speaker 03:
It says we're changing our approach.

[00:18:01] Speaker 03:
And I think, and in the 2018, when they issued all of these at once, they have now said it should be in DCC.

[00:18:09] Speaker 02:
And you think that statement counts as EPA finding and publishing that such action is based on such a national determination, with the meaning of the judicial review provision?

[00:18:22] Speaker 03:
Yes, Your Honor, I do.

[00:18:23] Speaker 03:
I don't think that they should be rewarded for making such a significant change, something that shifted billions of dollars of revenue around by not notifying the other, the people who are the other half of the parties who are affected by this rule.

[00:18:39] Speaker 03:
I mean, that's unfortunate.

[00:18:40] Speaker 03:
I mean, that's part of the reason for the suit is not condoning.

[00:18:44] Speaker 08:
And it seems like- Do you understand sort of the difficulties?

[00:18:49] Speaker 08:
I understand your concerns about lack of

[00:18:51] Speaker 08:
transparency and openness that you allege.

[00:18:55] Speaker 08:
I'm not making decisions on that, but if we were to assume you were correct, that there was a secret rule that then caused all these decisions, it's very hard for us to figure out how to address that and quite complicated if the thought is that we could be reviewing an individualized exemption decision

[00:19:17] Speaker 08:
that for all we know could be getting reviewed by another Court of Appeals regionally as well at the same time.

[00:19:22] Speaker 08:
And now you have this decision from August 2019 where they seem quite clear to have announced a rule at least as to 31 refineries and a national rule at that.

[00:19:36] Speaker 08:
So there is at least a memorandum from a higher up official

[00:19:41] Speaker 08:
announcing a legal position, and I'm not saying whether you would win or lose or be able to challenge that.

[00:19:46] Speaker 08:
I'm sure there's plenty of other issues to be litigated, but at least that's something much more concrete, and I just wonder why that isn't your better vehicle.

[00:19:56] Speaker 08:
And this is concrete from our purposes.

[00:19:57] Speaker 08:
It's something for court to look at.

[00:19:59] Speaker 03:
Well, interestingly, I mean, in that case, it was brought in the 10th Circuit.

[00:20:02] Speaker 03:
So they then said, oh, it should be in the DC Circuit.

[00:20:05] Speaker 03:
So no matter what, the only consistency is that the EPA always argues you're in the wrong circuit.

[00:20:10] Speaker 03:
So in Lion Oil, they said, oh, this was an individual petition.

[00:20:12] Speaker 08:
I'm just saying you've got a concrete memorandum from an official.

[00:20:16] Speaker 08:
And again, I'm not getting ahead of whatever issues could be litigated there, but it's a thing you're missing here.

[00:20:22] Speaker 08:
What you're pointing to, and I get why you've done it, is a lot of individualized exemption decisions that have an interesting familiarity in their articulations.

[00:20:33] Speaker 08:
But I don't think anyone thinks we can review any of those individual decisions here.

[00:20:40] Speaker 08:
And so then we would have to say,

[00:20:43] Speaker 08:
we are taking a footnote out of every one of those decisions that is identical in declaring that.

[00:20:50] Speaker 08:
Is that what you want to do?

[00:20:51] Speaker 08:
That's the agency rule that we're reviewing?

[00:20:54] Speaker 03:
No, we're saying that they've articulated a new definition of disproportionate economic action.

[00:20:59] Speaker 08:
In that footnote that's in a lot of decisions.

[00:21:00] Speaker 03:
Correct.

[00:21:01] Speaker 08:
And so we can lift that up out and that becomes the rule that we review?

[00:21:05] Speaker 03:
Yes, because then that has been... But we can't remedy it without

[00:21:09] Speaker 08:
It's been universally applied.

[00:21:11] Speaker 03:
Well, that can be set aside.

[00:21:13] Speaker 03:
I mean, we can have declaratory relief that the methodology of no longer considering viability to a refinery is inconsistent with the statute.

[00:21:23] Speaker 03:
And they've applied that across the board to every single decision since then.

[00:21:28] Speaker 03:
So they've basically amended a statutory term through adjudications.

[00:21:32] Speaker 03:
And it's a little bit of a shell game in that they're trying to issue all these exemptions

[00:21:38] Speaker 03:
and not allow them to be challenged and say that we have to spread out.

[00:21:41] Speaker 03:
There's also one of the reasons for.

[00:21:43] Speaker 05:
The use of adjudication as opposed to rulemaking may not be a good way to do things, but it's not an uncommon way to do things.

[00:21:49] Speaker 03:
That's true, Your Honor.

[00:21:50] Speaker 05:
The NLRB for years made no rules.

[00:21:53] Speaker 05:
It was all out of adjudication.

[00:21:55] Speaker 05:
It may have made us mad at times, but we've made anything improper about it.

[00:21:59] Speaker 05:
And we got lots of abuse of NLRB interpretations in adjudication.

[00:22:06] Speaker 03:
And, Your Honor, in this court, though, is particular adept that it's the cases where the agency articulates something in adjudication that it plans on applying nationally.

[00:22:18] Speaker 03:
So this is applied in eight different circuits.

[00:22:21] Speaker 05:
But all the times that we had it, for example, in an LRB, we got it, but a petition for review of a particular decision that had it in it.

[00:22:30] Speaker 05:
We didn't just have the

[00:22:33] Speaker 05:
management interests coming in saying you can't have bargaining orders in interfered election cases.

[00:22:40] Speaker 05:
We'd get a particular case without a bargaining order, and eight times we kept telling them they couldn't do that in front of them, they quit doing it.

[00:22:46] Speaker 05:
But in any event, they brought us cases, and we ruled on them.

[00:22:51] Speaker 05:
And you're not doing that here.

[00:22:52] Speaker 03:
Could I just explain one main difference here?

[00:22:55] Speaker 03:
Yeah.

[00:22:55] Speaker 03:
The petitions are issued in secrecy, and we're not aware of their contents or who gets them.

[00:23:02] Speaker 03:
even the name of the company that gets them.

[00:23:04] Speaker 03:
So it's particularly horrible.

[00:23:06] Speaker 03:
I mean, what would I do?

[00:23:08] Speaker 03:
Just file a petition in the Seventh Circuit and say, we believe there might be a small refinery located anywhere.

[00:23:13] Speaker 05:
Did you try using FOIA to get at least the information that the Red Men sent you filing?

[00:23:19] Speaker 03:
Nothing has ever been responded to under FOIA.

[00:23:21] Speaker 08:
You filed a FOIA request years ago.

[00:23:23] Speaker 03:
It hasn't gone anywhere.

[00:23:25] Speaker 03:
And they've asserted confidential business information over things that companies publicly disclose.

[00:23:31] Speaker 08:
It's such an incredibly aggressive... But I mean, at least you do now have a concrete decision out there with the August 2019 memo that was revealed in mid-September.

[00:23:41] Speaker 03:
Yeah, we believe that that's just another articulation of this policy.

[00:23:45] Speaker 08:
I know, but at least it's not all hidden now.

[00:23:48] Speaker 08:
At least that one is definitely not hidden.

[00:23:51] Speaker 08:
That one is definitely not hidden, Your Honor.

[00:23:55] Speaker 08:
So you have no way of knowing

[00:23:59] Speaker 08:
Is there no list anywhere that says we granted exemptions this month to A, B, C, and D?

[00:24:05] Speaker 03:
No.

[00:24:06] Speaker 03:
We know nothing, Your Honor.

[00:24:07] Speaker 03:
The only people who know it are the parties who are giving them.

[00:24:10] Speaker 03:
And then we only figured it out when the prices of these RINs cratered because they're able to trade on this information ahead of the market because they know they're getting exemptions.

[00:24:19] Speaker 08:
If you somehow were able to find out

[00:24:24] Speaker 08:
I had a friend who just got one of the exemptions and told you, is there any mechanism for you, for your company to, when could you just seek review of an exemption decision when you weren't a party to it?

[00:24:39] Speaker 08:
you want to party to that adjudication or would you even be if you knew it was ongoing would you be able to intervene or I'm trying to figure out mechanically if there's another way.

[00:24:47] Speaker 03:
Well that's the problem there probably isn't because we would they would they would roll up the usual suspects we'd be told we don't have standing we'd be told that we have no interest in this case.

[00:24:55] Speaker 08:
I'm just asking mechanically would you be able to find out

[00:24:59] Speaker 03:
Not that I know of.

[00:25:01] Speaker 08:
Has anyone attempted to intervene?

[00:25:03] Speaker 03:
Any of the details.

[00:25:04] Speaker 03:
I don't know how we would get any of the details.

[00:25:06] Speaker 03:
There has been some that have been challenged, but it's only ones that came out publicly like Sinclair Oil after Sinclair went back and challenged it.

[00:25:14] Speaker 08:
Well, you could intervene even on appeal.

[00:25:17] Speaker 03:
Well, the other thing here that I think is important, Your Honor, is to have this, this is a uniform, to have uniform

[00:25:25] Speaker 03:
oversight of the laws.

[00:25:26] Speaker 03:
And by going to each individual circuit, we risk having each individual circuit making a different ruling, but it's all the same standard.

[00:25:35] Speaker 05:
It's... But unfortunately, that's not uncommon.

[00:25:38] Speaker 05:
I mean, I cited NLRB, IRF, lots of other agencies, you do have circuit splits on sexual interpretation.

[00:25:47] Speaker 03:
That's right, Your Honor.

[00:25:48] Speaker 03:
And I think that's why the Clean Air Act, that's why there is that provision of this Clean Air Act for nationally applicable regulations.

[00:25:55] Speaker 03:
And we believe this is nationally applicable.

[00:25:57] Speaker 03:
They haven't wavered from it.

[00:25:58] Speaker 03:
They've issued it.

[00:25:59] Speaker 05:
If I'm going to back you up to something else that may be going too far down the road, what is the status of your FOIA controversy with the agency?

[00:26:07] Speaker 03:
Zero answer, Your Honor.

[00:26:09] Speaker 05:
Well, did you take that any further?

[00:26:11] Speaker 05:
I mean, the FOIA provides for litigation.

[00:26:15] Speaker 03:
FOIA provides.

[00:26:15] Speaker 03:
The problem with this, Your Honor, is that these are one-year decisions, and by the time you fight through the thicket of FOIA, the harm has happened.

[00:26:24] Speaker 03:
So in the last two years alone, this has been $7 billion.

[00:26:26] Speaker 08:
Which procedures, when they have a concrete timetable for responding to FOIA, and then you can always seek expedition before a court?

[00:26:34] Speaker 03:
Yeah, but a FOIA, OK, so a FOIA would have gotten us to the same place, though.

[00:26:38] Speaker 03:
A FOIA would have gotten us this information.

[00:26:40] Speaker 03:
And we would have seen again that it's nationally applied.

[00:26:45] Speaker 03:
And there's two aspects, that it's a nationally applied rule, and that they've also altered the extension rule.

[00:26:50] Speaker 05:
Well, even if they had redacted confidential information, you still would have the information on the existence of the decision, which you could be asking us to review.

[00:26:58] Speaker 05:
And you have it for some of them, as presiding judge points out.

[00:27:02] Speaker 05:
You have the existence.

[00:27:03] Speaker 05:
And you still have not brought an action to review those particular decisions.

[00:27:08] Speaker 03:
To us, the most important thing is that the standard has changed.

[00:27:13] Speaker 05:
It's not necessarily.

[00:27:14] Speaker 05:
That's the most important thing is statutory fix.

[00:27:17] Speaker 05:
That's more important than anything else.

[00:27:18] Speaker 03:
Yes, of course, Your Honor.

[00:27:20] Speaker 03:
And we believe that a statutory interpretation that is universally applied across adjudications

[00:27:27] Speaker 03:
is reviewable.

[00:27:28] Speaker 03:
You have all you need in front of this court in order to make a decision.

[00:27:32] Speaker 03:
In fact, I don't even think you need to look at the individual decisions to render.

[00:27:36] Speaker 05:
We have to have a final action.

[00:27:40] Speaker 05:
That's a statutory minimum.

[00:27:43] Speaker 05:
We have judges out there saying this.

[00:27:47] Speaker 05:
But that's an equation for our jurisdiction on administrative review.

[00:27:51] Speaker 05:
And we're going around in circles here, getting back to why you don't have one, but

[00:27:57] Speaker 05:
Still, you don't have one.

[00:27:59] Speaker 03:
Yes, Your Honor, we believe that.

[00:28:01] Speaker 08:
Is your FOIA for the exemption decisions, or is it for agency memos sent to whoever it is that makes these exemption decisions that are not formulating policies?

[00:28:13] Speaker 03:
The FOIA was related to figuring out what this change in methodology is.

[00:28:18] Speaker 05:
What did you ask for?

[00:28:20] Speaker 03:
for anything pertaining to the manner in which they are making decisions on requests for extensions of exemptions.

[00:28:28] Speaker 05:
Okay, and you got no response?

[00:28:29] Speaker 05:
No response.

[00:28:30] Speaker 05:
And you didn't go to court?

[00:28:31] Speaker 03:
I have not gone to court.

[00:28:33] Speaker 03:
There's another FOIA case that has been out there by another group who has been litigating this, and the documents have been slowly trickling out.

[00:28:43] Speaker 03:
We're aware of those, and some of those are now just becoming, I think they became public in the last day or so.

[00:28:49] Speaker 03:
And I believe from what I've heard about and seen them, they actually support us, where the agency made a very deliberate decision to change its methodology in order to grant extensions of exemptions to parties who've never had an exemption before.

[00:29:06] Speaker 03:
And you can't extend something that doesn't exist.

[00:29:08] Speaker 05:
Well, we don't need to get into that argument if we don't have to.

[00:29:10] Speaker 08:
All right, I think we'll hear from the other side now.

[00:29:14] Speaker 08:
Thank you.

[00:29:31] Speaker 06:
Good morning, your honors, may it please the court.

[00:29:33] Speaker 06:
I'm Jessica O'Donnell with the Department of Justice.

[00:29:35] Speaker 06:
I'm here today on behalf of EPA.

[00:29:38] Speaker 06:
With me at counsel's table is Susan Staley from EPA's Office of General Counsel.

[00:29:42] Speaker 06:
Also at counsel's table is Ryan Morris, who is representing the Intervenor Sully Frontier.

[00:29:48] Speaker 06:
And EPA has agreed to give three minutes of its oral argument time to intervenors.

[00:29:54] Speaker 06:
I think the court and petitioners here have already put their finger on what is the problem with the ABFA's petition.

[00:30:00] Speaker 06:
ABFA does not identify any concrete final agency action as the subject of its challenge.

[00:30:09] Speaker 08:
I've never read a brief where the agency begins by saying there is no final agency action, it hasn't happened, and then the second half of the brief is, oh, we announced it and we explained this new change in policy and we have a reasonable explanation for it.

[00:30:23] Speaker 08:
So we have definitely changed our methodology and we gave a reasonable explanation for it.

[00:30:28] Speaker 08:
It seems to me you're

[00:30:30] Speaker 08:
can't have one or the other.

[00:30:31] Speaker 08:
Is there an agency decision to change methodology?

[00:30:36] Speaker 06:
Judge Millett, you're referring to EPA's brief in this case, not petitioner's brief.

[00:30:40] Speaker 06:
Right, I'm sorry.

[00:30:40] Speaker 06:
Okay, just one more.

[00:30:41] Speaker 06:
Yes, I'm sorry.

[00:30:42] Speaker 08:
Yes, your brief.

[00:30:42] Speaker 06:
I mean, it wants to say there's no final agency action, and then you tell me there is.

[00:30:45] Speaker 06:
Right.

[00:30:46] Speaker 06:
Well, the arguments in the second half of the brief are in the alternative if the court does determine there's final agency action.

[00:30:51] Speaker 08:
I know, but I don't know how you can acknowledge a change and justify it, but you say on the front of the brief you didn't make.

[00:30:56] Speaker 06:
I don't think the agency is saying that it didn't make a change.

[00:30:59] Speaker 06:
I think what the agency is saying is that to the extent there is a change, it is only reflected in those individual decision documents adjudicating small refinery petitions.

[00:31:10] Speaker 08:
OK.

[00:31:11] Speaker 08:
But then what I want to understand is who makes those individual exemption decisions?

[00:31:16] Speaker 06:
Those are made by the director of the Office of Transportation and, excuse me,

[00:31:25] Speaker 08:
I mean, is it a regional official or?

[00:31:28] Speaker 06:
No, no.

[00:31:29] Speaker 06:
It's a headquarters official.

[00:31:30] Speaker 06:
But it's not made by the assistant administrator.

[00:31:34] Speaker 06:
It's been delegated down to the head of the particular office.

[00:31:38] Speaker 08:
OK, so when that individual makes this decision, so that same person is making every exemption decision in the country?

[00:31:46] Speaker 08:
Yes.

[00:31:47] Speaker 08:
OK.

[00:31:47] Speaker 08:
And so your position is when, what I'm trying to figure out is there's this common language that is showing up

[00:31:56] Speaker 08:
in all of these decisions and announcing this changed methodology.

[00:32:01] Speaker 08:
And so it seems to be my assumption is he's not making this up as he goes along, that there's rigor and integrity to the decision making in the sense that the same law is being applied in all these cases.

[00:32:15] Speaker 08:
And so what these decisions reveal is that there is now a new legal rule that's being applied in all of these cases formulated

[00:32:26] Speaker 08:
I guess by this official or maybe someone higher up we sent in town, but you have an agency official, a central and national agency official who has adopted a new changed legal rule that applies in every single case.

[00:32:41] Speaker 08:
How is it that that can't be challenged as a national rule?

[00:32:48] Speaker 06:
Well, I think we would disagree with Your Honor that it's a rule.

[00:32:52] Speaker 06:
It's a statement that the agency, if the agency

[00:32:56] Speaker 06:
position with regard to how it's interpreting the statute.

[00:33:00] Speaker 06:
It has legal consequences only with respect to those, the small refinery.

[00:33:05] Speaker 06:
It's not a legal rule of decision that gets applied in every single case consistently?

[00:33:09] Speaker 06:
It may be precedent and the EPA is applying it.

[00:33:12] Speaker 06:
Is it a legal rule of decision?

[00:33:14] Speaker 06:
It is precedent, but it is not a rule generally.

[00:33:17] Speaker 06:
I don't know what you mean by it's precedent.

[00:33:18] Speaker 08:
It is precedent for that particular... Is it a legal rule, a legal test that they apply to make the decision in an individual exemption case?

[00:33:26] Speaker 06:
It is the agency's interpretation of the statute.

[00:33:28] Speaker 06:
Is that in your... I get that it's... It applied it.

[00:33:30] Speaker 06:
It applied it.

[00:33:32] Speaker 08:
Sorry, go ahead.

[00:33:34] Speaker 06:
You say it's an interpretation.

[00:33:35] Speaker 06:
It's an interpretation that the agency applied to the parties to the adjudication, in the adjudication.

[00:33:42] Speaker 08:
And is that interpretation?

[00:33:44] Speaker 08:
one that is applied consistently to everybody who applies for an exemption.

[00:33:48] Speaker 06:
The documents reflect, the documents in the administrative record in this case, reflect that the agency applied it consistently.

[00:33:56] Speaker 06:
That does not make it a national rule.

[00:33:58] Speaker 08:
I'm just trying to answer these questions one at a time.

[00:34:01] Speaker 08:
So there is a central decision maker who has adopted

[00:34:06] Speaker 08:
an interpretation that is applied consistently as a legal rule of decision in all exemption cases.

[00:34:13] Speaker 08:
Am I saying that accurately?

[00:34:15] Speaker 08:
It is an interpretation.

[00:34:16] Speaker 08:
The agency would not concede that it is a rule.

[00:34:24] Speaker 08:
How is it not the rule of decision?

[00:34:26] Speaker 08:
Is it the rule of decision?

[00:34:28] Speaker 08:
Is it the legal test that's applied to decide a case?

[00:34:30] Speaker 08:
Do you like the word test better?

[00:34:32] Speaker 06:
It is the legal interpretation that was applied to decide the legal standard that the agency applied in those particular adjudications.

[00:34:41] Speaker 08:
And if an agency official, if he issued a public statement that said here is now the legal standard, here is our changed

[00:34:51] Speaker 08:
We're changing our methodology.

[00:34:54] Speaker 08:
Here is the new legal standard that I will apply consistently in every exemption case to make this decision.

[00:35:02] Speaker 08:
Did he or she?

[00:35:05] Speaker 08:
I shouldn't be assuming.

[00:35:08] Speaker 08:
That were released publicly.

[00:35:11] Speaker 08:
Would that be a challengeable agency action?

[00:35:14] Speaker 06:
We don't have that.

[00:35:15] Speaker 08:
I'm not answering.

[00:35:17] Speaker 08:
That's why I said if.

[00:35:20] Speaker 06:
That would be an action that could be challenged.

[00:35:23] Speaker 06:
The parties could fight about whether it is a final action or not, but that is not the situation we have here.

[00:35:29] Speaker 08:
Before you move on, sorry.

[00:35:32] Speaker 08:
That would be a final agency action?

[00:35:35] Speaker 06:
This is now the legal test you must meet to get this?

[00:35:38] Speaker 06:
We would not concede that that would be a final agency action.

[00:35:42] Speaker 06:
I mean, part of the problem with this case is that if we don't have a document in which the agency articulated something that the parties could fight about, whether it's final and what its legal consequences are.

[00:35:51] Speaker 08:
I guess you don't have the memo in this case.

[00:35:52] Speaker 08:
We do have the memo that came out in August that announces new standards for decision for 31 companies.

[00:36:04] Speaker 08:
Is that final agency action?

[00:36:06] Speaker 06:
That is final agency action.

[00:36:08] Speaker 06:
It reflects the agency's decision on multiple

[00:36:12] Speaker 06:
petitions for small refinery exemptions.

[00:36:15] Speaker 08:
I know the memo carefully says this is how we've decided this group of 31, but I'm assuming that that would represent that they would apply the same legal rule, maybe different outcomes based on the records in each case, but that same legal rule will be applied at least from August 2019 forward.

[00:36:36] Speaker 08:
to others too, or is there something unique about those 31?

[00:36:40] Speaker 06:
The agency has not articulated in that decision, which is not before the court, or in these decisions, that this is the rule that it will apply in every case.

[00:36:49] Speaker 06:
I mean, that is the nature of adjudications.

[00:36:51] Speaker 06:
I mean, Your Honor referred to the agency announcing a change.

[00:36:54] Speaker 06:
This interpretation, the interpretations and the methodologies and the policies that the petitioners want to challenge that are reflected in these individual adjudications have been

[00:37:06] Speaker 06:
stated in adjudication, so it's not like you have a rule that the agency articulated.

[00:37:10] Speaker 08:
But they state it in adjudications they can't see, and they don't know about it.

[00:37:12] Speaker 08:
So you have the difficulty here.

[00:37:14] Speaker 08:
Normally in adjudications, you have the agency and the party affected, and the party affected is if they're happy with the agency decision or unhappy.

[00:37:23] Speaker 08:
And when they're injured,

[00:37:25] Speaker 08:
They know about it and they can seek review.

[00:37:27] Speaker 08:
The difficulty here is you have the agency adopting a new methodology, a new standard for decision that is consistently applied across the nation to resolve these disputes in a way that the party to the adjudication has no interest in challenging, but the person who, the entities, their ox is getting gored

[00:37:51] Speaker 08:
don't have any notice of the proceeding, don't have any capacity unless you tell me otherwise to intervene or participate in that or even to know what the basis for the decision is.

[00:38:01] Speaker 08:
So what are they supposed to do procedurally to challenge this new methodology

[00:38:07] Speaker 08:
that's hurting them.

[00:38:08] Speaker 08:
What are they supposed to do if they haven't done it?

[00:38:09] Speaker 06:
Well, I think we understand that it is frustrating to petitioners and it's frustrating to the court that they're competent for this information.

[00:38:14] Speaker 06:
I'm not frustrated or not.

[00:38:15] Speaker 08:
I'm just asking a question.

[00:38:16] Speaker 08:
I don't have a frustration here.

[00:38:17] Speaker 08:
I have a question.

[00:38:18] Speaker 06:
But I don't think it is fair to say that they have no opportunity to challenge these decisions.

[00:38:22] Speaker 06:
There is an ongoing case in the 10th Circuit now that is challenging small refinery decisions that are among the group that we provided to the court in this case.

[00:38:31] Speaker 06:
So by another industry group,

[00:38:36] Speaker 06:
representing ethanol interests that are unhappy that EPA granted the exemptions.

[00:38:40] Speaker 06:
They are challenging it.

[00:38:40] Speaker 06:
How did they find out?

[00:38:41] Speaker 06:
What did they do?

[00:38:42] Speaker 06:
That information was publicly released by the refinery themselves.

[00:38:45] Speaker 06:
And so they, the parties in that case, filed their challenge based on those SECA violence.

[00:38:50] Speaker 08:
And is there any question as to the timeliness and viability of their ability to bring that challenge?

[00:38:55] Speaker 06:
EPA did not raise any questions regarding the timeliness of that challenge, except with regard to, we did raise the

[00:39:03] Speaker 06:
As in this case, we are arguing that certain aspects of their challenge go to EPA's 2014 regulation, and we are arguing that that is time barred, but it's a narrow.

[00:39:14] Speaker 06:
How could it be time barred if they didn't know about it?

[00:39:16] Speaker 06:
They know about EPA's 2014 regulation and what that regulation says.

[00:39:21] Speaker 06:
Do they know about it in time?

[00:39:23] Speaker 06:
their participants in this market, I presume that they would have participated in EPA's 2014 rulemaking, which was issued on that rulemaking.

[00:39:34] Speaker 06:
But that's a different issue.

[00:39:36] Speaker 06:
But talking about the broader case, we have not raised standing defense in that case.

[00:39:40] Speaker 06:
I'm not admitting that we would not do so in the appropriate case.

[00:39:45] Speaker 06:
I can't speculate.

[00:39:47] Speaker 05:
We can't litigate the standing very well at this point, but I don't see why you

[00:39:51] Speaker 05:
why they wouldn't have competitor standing.

[00:39:54] Speaker 05:
That's not a unique thing.

[00:39:56] Speaker 06:
What I'm saying is, in the RFA case that is pending in the 10th Circuit, we have not raised standing, nor have we said that there are challenges to the three small refinery exemption decisions.

[00:40:08] Speaker 08:
Okay, but that is a pure fortuity that the refineries disclosed it, right?

[00:40:13] Speaker 08:
So let's assume we're in a world where the refineries who are benefiting from this don't disclose.

[00:40:19] Speaker 08:
So you have

[00:40:20] Speaker 08:
a new changed agency methodology that is being applied consistently in all cases, which are secret, and the party that's on the receiving end of that has no interest in challenging it, tell me what, absent a refinery disclosure, how is that supposed to be challenged?

[00:40:41] Speaker 06:
They have- Petitioners have explained, they have filed a, well, EPA releases some information with regard to these small refinery requests.

[00:40:49] Speaker 06:
on its website.

[00:40:51] Speaker 06:
It has a monthly dashboard that it updates on the third of every month and it says whether there's been exemption to granite and how many and what are the ring volumes.

[00:41:00] Speaker 06:
It does not disclose the names of the small refineries because the small refineries have claimed that information as confidential.

[00:41:07] Speaker 08:
I'm going to ask, I understand, so if I'm the lawyer and I'm worried that dashboard's released, there's no names,

[00:41:18] Speaker 08:
I would like, again, an answer to the question, how do they assert their legal challenges to the new methodology?

[00:41:26] Speaker 08:
There's nothing to intervene in.

[00:41:28] Speaker 08:
They can't identify the cases.

[00:41:29] Speaker 08:
And they can't see on what basis you decided the cases.

[00:41:32] Speaker 08:
So what should they have done?

[00:41:33] Speaker 08:
You don't like what I did here.

[00:41:35] Speaker 08:
What should they have done?

[00:41:36] Speaker 06:
The petitioners did file a FOIA request with the agency.

[00:41:40] Speaker 06:
They have not pursued.

[00:41:41] Speaker 08:
Which at least 18 months have gone by without response.

[00:41:43] Speaker 06:
But they have not pursued any judicial remedies with regard to that.

[00:41:47] Speaker 08:
A FOIA request is not a challenge.

[00:41:49] Speaker 08:
That's a way to get information.

[00:41:50] Speaker 08:
That is not a challenge to the new methodology applied and adopted by the agency.

[00:41:57] Speaker 08:
So I'm asking again.

[00:41:59] Speaker 06:
Respectfully, Judge Millett, they are saying that they are challenging the agency's failure to release this information to them.

[00:42:06] Speaker 06:
They have a mechanism.

[00:42:08] Speaker 06:
Part of their case is about getting this information.

[00:42:10] Speaker 06:
They have a mechanism to avail themselves of other judicial remedies to

[00:42:16] Speaker 06:
obtain that information and they have not done so.

[00:42:19] Speaker 08:
I'm sorry, I don't think bringing a FOIA case is the same thing as bringing an APA challenge to a legal test.

[00:42:26] Speaker 08:
The remedies are not the same.

[00:42:29] Speaker 06:
But they are saying they can't, that the reason why they are bringing this challenge over which the court lacks jurisdiction is because they do not have the information.

[00:42:38] Speaker 06:
And I'm saying, and you are saying, how can they get the information?

[00:42:41] Speaker 08:
No, no, that is not my question, but I will make it crystal clear.

[00:42:45] Speaker 08:
My question is, how can they challenge the changed methodology that you have said exists and is applied consistently by a single official nationwide in adjudication after adjudication after adjudication?

[00:43:04] Speaker 08:
How can they challenge that if they believe, may not be, but if they believe it's lawless?

[00:43:13] Speaker 06:
And I'm saying in order to do that, they can bring their FOIA case and they can get the information from FOIA, from the agency.

[00:43:20] Speaker 05:
That doesn't answer that question.

[00:43:23] Speaker 05:
You're telling how we can get the information.

[00:43:25] Speaker 05:
How can they bring the action?

[00:43:26] Speaker 05:
How can they tell them what to do?

[00:43:27] Speaker 06:
They can also bring the action based on public information that the Renewable Fuels Association brought in the other case.

[00:43:33] Speaker 08:
They've brought this lawsuit.

[00:43:35] Speaker 08:
What lawsuit is it that they bring?

[00:43:37] Speaker 08:
They've brought this lawsuit on information that's been released, and you say this doesn't work either.

[00:43:41] Speaker 08:
So what were they, if you were advised, I know you're not, but if you were to, good government here, they say you don't like what we did here.

[00:43:51] Speaker 08:
How do I bring this challenge?

[00:43:55] Speaker 06:
The confidentiality issues are difficult here.

[00:43:58] Speaker 06:
I understand that.

[00:43:59] Speaker 06:
And I will get to answering your question as best I can.

[00:44:05] Speaker 06:
But the small refineries who have submitted this information have claimed it as confidential business information.

[00:44:11] Speaker 06:
EPA is required by law by its own regulations to treat that information as confidential for as long as it is being claimed confidential and EPA doesn't determine otherwise.

[00:44:30] Speaker 06:
EPA has received FOIA requests seeking this information.

[00:44:34] Speaker 06:
EPA is working through some of those FOIA requests and has released some of that information.

[00:44:39] Speaker 06:
and has put it on its website.

[00:44:41] Speaker 06:
It is publicly available.

[00:44:43] Speaker 06:
Petitioners have the same right as those other parties.

[00:44:46] Speaker 05:
Is there enough information there to give them the decision that they could bring a telling to?

[00:44:50] Speaker 06:
I'm not aware of all the pieces of information that EPA has released on its website with regard to these other FOIA requests.

[00:44:58] Speaker 08:
Is your position they just can't challenge this?

[00:45:00] Speaker 08:
I'm sorry?

[00:45:00] Speaker 08:
Is your position they just can't challenge this?

[00:45:02] Speaker 08:
They can't bring this?

[00:45:04] Speaker 08:
They have got information.

[00:45:07] Speaker 08:
We've got a lot in the record here.

[00:45:09] Speaker 08:
And they cobbled it together and said, here's what we've identified, what you just said.

[00:45:14] Speaker 08:
And that is that there's a new change methodology that's been adopted by a person who then applies it nationwide.

[00:45:22] Speaker 08:
We think it's lawless.

[00:45:23] Speaker 08:
It might not be.

[00:45:24] Speaker 08:
It might pass Chevron's step two or one or whatever your arguments would be.

[00:45:28] Speaker 08:
But they say we think it's lawless.

[00:45:31] Speaker 08:
And we are injured and aggrieved.

[00:45:33] Speaker 08:
And no one here is questioning their standing.

[00:45:36] Speaker 08:
And so how do they bring that APA lawsuit, or is your position that there can be no APA lawsuit?

[00:45:45] Speaker 08:
It is not our position that there can be no APA lawsuit.

[00:45:50] Speaker 06:
They have said repeatedly they are not challenging the individual orders, which are the final agency actions that they can

[00:45:58] Speaker 06:
They couldn't, but you just mean they couldn't anyhow.

[00:46:00] Speaker 06:
They are not challenging those.

[00:46:02] Speaker 06:
So they haven't said in this case that they are challenging those decisions.

[00:46:05] Speaker 06:
That's right, because they would like... They are saying they can't challenge EPA's... Excuse me.

[00:46:10] Speaker 08:
What do you mean?

[00:46:11] Speaker 08:
No, no, I understand.

[00:46:12] Speaker 08:
This is just a really hard question for me, and that's why I'm trying to be very direct about it.

[00:46:16] Speaker 08:
And I appreciate your trying to answer.

[00:46:18] Speaker 08:
All right?

[00:46:19] Speaker 08:
They have said, we're not picking on one refiner or another.

[00:46:23] Speaker 08:
We have this legal test that we wish to challenge.

[00:46:28] Speaker 08:
We can't, I think that's why they say we're not looking to say it may be that even under the correct view of the legal test in their position, the exemption would still be granted, they don't know any of that.

[00:46:40] Speaker 08:
I think that's, I don't mean to put words in my mouth, I think that's what they're saying.

[00:46:43] Speaker 08:
What they want to say is there's this, the problem is that what's driving the train here

[00:46:48] Speaker 08:
is something that should not be remotely confidential, and that is a new legal standard has been adopted on a nationwide basis and is being implemented consistently on a nationwide basis by a high-level official in the agency in Washington, D.C.

[00:47:05] Speaker 08:
Disclose that so we can challenge that.

[00:47:09] Speaker 08:
But you don't disclose that when you make exemption decisions.

[00:47:12] Speaker 06:
With regard to the new legal standard, I just want to emphasize that we are not conceding that EPA has promulgated a rule here.

[00:47:19] Speaker 06:
What it has done is it has decided individual small refinery requests for exemption on a case-by-case basis.

[00:47:28] Speaker 06:
It has applied

[00:47:30] Speaker 06:
its interpretation of the statute in those decisions.

[00:47:33] Speaker 08:
Has that interpretation changed?

[00:47:35] Speaker 08:
Has that interpretation changed?

[00:47:36] Speaker 08:
I read your brief is acknowledging that it has.

[00:47:38] Speaker 06:
It has changed.

[00:47:39] Speaker 06:
Okay, that's what they want to challenge.

[00:47:41] Speaker 06:
But as Judge Chantel recognized, it is not unusual for an agency to articulate its interpretation of the statute as applied to individuals like this in this situation in adjudications.

[00:47:53] Speaker 06:
Congress did not author or did not require it to do it by rulemaking.

[00:47:56] Speaker 08:
Of course that's not unusual.

[00:47:59] Speaker 08:
doesn't happen in the NLRB or IRS, other cases, is when it's completely locked up as secret.

[00:48:07] Speaker 08:
That's the question I need you to answer.

[00:48:10] Speaker 08:
Because it is not, if it were public, you redacted the names of the companies.

[00:48:15] Speaker 08:
but the legal reasoning for the decision was released, the date was released, then they could do what you want them to do and challenge that legal test and say you can remand court and let them, we may not take away their exemption, you remand for them to apply the correct law if they win on their legal challenge.

[00:48:34] Speaker 08:
But we need to challenge that test.

[00:48:36] Speaker 08:
They can't do what happens in all the other adjudication cases.

[00:48:41] Speaker 08:
That's the question I have for you.

[00:48:42] Speaker 08:
What are they supposed to do when there's no root?

[00:48:44] Speaker 06:
We would disagree that they don't have any root.

[00:48:46] Speaker 06:
I mean, I think we have said we think they can obtain.

[00:48:48] Speaker 06:
There's information that the agency is releasing that they can act on.

[00:48:52] Speaker 06:
They have revenues under FOIA.

[00:48:54] Speaker 05:
Are you saying there's enough information on that dashboard that they could bring a challenge based on what's there?

[00:48:58] Speaker 06:
Not on just the number of small refinery exemptions that are being issued.

[00:49:03] Speaker 05:
Let's just talk about one case for a minute.

[00:49:07] Speaker 05:
Are you saying there's enough there that they can take what's publicly posted and bring a challenge to that granting of that exemption?

[00:49:15] Speaker 06:
Not on what's on the dashboard alone, the numbers.

[00:49:19] Speaker 06:
Where is there enough information?

[00:49:21] Speaker 05:
Just a minute, please.

[00:49:23] Speaker 05:
Where is there enough information

[00:49:26] Speaker 05:
for them to bring the challenge even to an individual exemption.

[00:49:30] Speaker 06:
Certain parties have released the existence of the exemptions that they received.

[00:49:35] Speaker 05:
Say again, I'm sorry.

[00:49:36] Speaker 06:
Certain parties who have received the exemptions have not claimed that information as confidential and have released it.

[00:49:43] Speaker 06:
The Renewable Fuels Association obtained that information and brought a case in

[00:49:49] Speaker 06:
the 10th Circuit.

[00:49:50] Speaker 06:
Challenging three of these decisions, it is pending.

[00:49:53] Speaker 06:
The oral argument was last month.

[00:49:54] Speaker 08:
That was the fortuity that the refinery chose to release the information.

[00:50:00] Speaker 08:
Now my question to you is if that had not happened, how would the challenge, let's assume it stays as secret as EPA is treating it, how does the change in

[00:50:17] Speaker 08:
the legal standard being applied by the agency get challenged?

[00:50:22] Speaker 06:
EPA is required to keep the decisions, the information confidential.

[00:50:29] Speaker 08:
I'm sure there's lots of litigation about what the information is, but go ahead.

[00:50:32] Speaker 06:
Right, and the Supreme Court recently recognized that... I still wouldn't, I really don't want to go astray.

[00:50:37] Speaker 08:
All right, so your answer is they should have filed a petition for review from those refiners whose assumptions they don't really want to fight over.

[00:50:47] Speaker 08:
but they should have filed a petition.

[00:50:48] Speaker 08:
Did those refiners release the content of the decision?

[00:50:52] Speaker 06:
The Supreme Court recognized in Lugan, if a party wants to challenge the agency's articulation of a standard in an adjudication, it needs to challenge that action.

[00:51:07] Speaker 08:
But if they don't know it about it?

[00:51:08] Speaker 06:
It is frustrating to a party to do it on a case-by-case basis.

[00:51:10] Speaker 08:
It's not that their frustration is not to do it on a case-by-case basis.

[00:51:14] Speaker 08:
The frustration is, as you said,

[00:51:17] Speaker 08:
Unless you have the fortuity of refiner disclosing.

[00:51:22] Speaker 08:
And I'm taking that out of my hypothetical.

[00:51:26] Speaker 08:
You say, we can't do it.

[00:51:27] Speaker 08:
The agency is not releasing any public information that would let us take the route they want us to take.

[00:51:35] Speaker 08:
And I think what I'm hearing from you is too bad.

[00:51:40] Speaker 06:
the agency, they filed this case, the agency has disclosed the information.

[00:51:46] Speaker 06:
That's right, they do not have a chance.

[00:51:51] Speaker 08:
Okay, so the fact they released the information is not, so the FOIA thing and releasing the information is not the answer because once they have the information you still say you can't challenge it, you have to go, I think your position as I read your brief is you have to go challenge it

[00:52:04] Speaker 08:
through an individual, you have to take up one or more of all of these individual adjudications.

[00:52:10] Speaker 06:
Yes.

[00:52:10] Speaker 08:
That's your position.

[00:52:11] Speaker 06:
Yes.

[00:52:12] Speaker 08:
And yet you've said EPA releases nothing that allows anybody to do that.

[00:52:17] Speaker 08:
Is that correct as well?

[00:52:18] Speaker 08:
That is not correct.

[00:52:19] Speaker 06:
Okay, you said the dashboard.

[00:52:20] Speaker 06:
In response to FOIA, EPA is releasing information about the small refinery exemptions.

[00:52:26] Speaker 06:
I can't detail exactly what that is for you because I have not

[00:52:30] Speaker 06:
looked at the website.

[00:52:31] Speaker 06:
But there is another Renewable Fuels Association, another trade association.

[00:52:36] Speaker 08:
Is that posted in the eFoya reading room for the agency?

[00:52:39] Speaker 08:
Yes.

[00:52:39] Speaker 08:
Okay.

[00:52:39] Speaker 08:
And so they're supposed to go there and find, and this is, how old are these exemptions you're releasing?

[00:52:44] Speaker 06:
FOIA is the mechanism for parties to get information from the government.

[00:52:48] Speaker 06:
So suggesting that they use the remedy under FOIA, I don't think is that novel or... I'm sorry.

[00:52:56] Speaker 08:
You want them to challenge an exemption.

[00:52:58] Speaker 08:
The exemptions that you say, the granting of exemptions that you say have been released under FOIA were made what year?

[00:53:05] Speaker 08:
What's the date on this?

[00:53:07] Speaker 06:
They were challenging decisions from, they were made in 2018 for 2016 and 2017 compliance years.

[00:53:16] Speaker 06:
Okay, so that's some time ago.

[00:53:17] Speaker 08:
So this would be three years after the fact they're supposed to challenge an exemption.

[00:53:22] Speaker 08:
That's the route that EPA, they're supposed to nail three years after the fact.

[00:53:26] Speaker 08:
say tomorrow you release the FOIA information to them.

[00:53:29] Speaker 08:
Three years later, they're supposed to file a petition for review of that individual grant of an exemption.

[00:53:37] Speaker 06:
That's your position.

[00:53:38] Speaker 06:
We would not, in that case, assert that they are time-barred because that decision was not published in the Federal Register.

[00:53:43] Speaker 06:
And they're supposed to challenge that.

[00:53:44] Speaker 06:
They may challenge that.

[00:53:45] Speaker 06:
They may also challenge... But that exemption is over.

[00:53:48] Speaker 08:
I'm sorry, I had one thing.

[00:53:50] Speaker 08:
So they want to challenge an exemption that has long since expired.

[00:53:55] Speaker 08:
Is that correct?

[00:53:55] Speaker 08:
They're one year at a time exemptions, am I right?

[00:53:57] Speaker 06:
Yes, it hasn't expired, it was for a year.

[00:54:00] Speaker 06:
The exemption applied to that small refinery for a year.

[00:54:03] Speaker 06:
Right, so if you granted, you said these were from like grant issued in 2016?

[00:54:06] Speaker 06:
They were issued in 2018 for 2016 and 2017 compliance years.

[00:54:11] Speaker 06:
There may have been some that were issued, am I?

[00:54:16] Speaker 08:
Are they still alive?

[00:54:18] Speaker 08:
If I wanted to overturn that exemption, would it be moved because it's expired and they had to apply for a new one?

[00:54:25] Speaker 06:
I don't think that we would assert mootness there.

[00:54:27] Speaker 06:
You may not assert it.

[00:54:28] Speaker 06:
That's a jurisdictional question.

[00:54:32] Speaker 06:
The exemption is issued.

[00:54:34] Speaker 06:
Once the exemption is issued, it removes the obligation for that small refinery to have to comply for that year.

[00:54:44] Speaker 08:
And so once that year is over, it's moot whether they got the exemption or not.

[00:54:49] Speaker 08:
Is it moot or not whether they got that exemption once the year is over?

[00:54:53] Speaker 06:
I don't know the answer to that question.

[00:54:55] Speaker 06:
I'm not going to say.

[00:54:59] Speaker 06:
So the last point that I would make is that, as Your Honor pointed out, there is an August 9, 2019 decision.

[00:55:07] Speaker 06:
The petitioners have noticed about it.

[00:55:09] Speaker 06:
They supplied it to the court.

[00:55:11] Speaker 06:
It's not before the court in this case, but they can file a challenge to that decision.

[00:55:16] Speaker 08:
And the time for filing that challenge would be measured from when it was publicly disclosed in court?

[00:55:23] Speaker 08:
Because that's an August 2019 decision, but they didn't know that.

[00:55:25] Speaker 06:
It's an August decision, but it was not published in the Federal Register.

[00:55:28] Speaker 06:
So the 60-day period has not been triggered yet.

[00:55:33] Speaker 07:
OK.

[00:55:33] Speaker 07:
Thank you.

[00:55:42] Speaker 04:
May I support Brian Morris for Holly Frontier?

[00:55:45] Speaker 04:
Just here to emphasize that in essence, the dual requirements of Section 307 are really what's at issue here.

[00:55:55] Speaker 04:
Because there's the venue provision and then there's jurisdiction.

[00:55:57] Speaker 04:
And what you can't do is try to avoid one and subvert the other one, which is what we have here.

[00:56:05] Speaker 04:
There is no final agency action.

[00:56:07] Speaker 04:
other than the individual adjudications themselves.

[00:56:11] Speaker 04:
And those are regional on their face.

[00:56:14] Speaker 04:
But that, as they say, they're not challenging them.

[00:56:17] Speaker 04:
So this court doesn't have venue, but there's no venue here, and there's no final agency action.

[00:56:23] Speaker 08:
I'm going to give you what, to be crystal clear, is, I expect, entirely hypothetical.

[00:56:31] Speaker 08:
If the administrator of EPA

[00:56:37] Speaker 08:
issues a memo that says, we know it's hypothetical because there hasn't been 100% grants.

[00:56:44] Speaker 08:
All requests for small refinery exemptions will be granted full style.

[00:56:53] Speaker 08:
I believe what makes them small is what makes them eligible for an exemption under the statute and articulates a legal rationale.

[00:57:04] Speaker 08:
sends that down to this individual who makes all the exemption decisions and says, I'm your boss.

[00:57:11] Speaker 08:
They will all be granted.

[00:57:14] Speaker 08:
Here's the new changed legal rationale.

[00:57:18] Speaker 08:
And it may be perfectly fine or not.

[00:57:20] Speaker 08:
No one's getting to the merits yet.

[00:57:23] Speaker 08:
But pushes that down and says, you will grant all exemptions under this new legal standard that I'm directing you to apply.

[00:57:35] Speaker 08:
Is that a challengeable agency action?

[00:57:38] Speaker 08:
Is that final agency action?

[00:57:41] Speaker 08:
Or do you have to wait for the adjudication?

[00:57:44] Speaker 04:
If there's a memorandum that does that, I think it does, but not because it's instructing someone within EPA to do something.

[00:57:50] Speaker 04:
It's because it now gives a legal effect to the regulated party.

[00:57:54] Speaker 04:
They now are entitled to it by virtue of the fact that they're small refiners.

[00:57:58] Speaker 08:
That's far different from the situation.

[00:58:00] Speaker 08:
I'm just asking hypotheticals right now.

[00:58:01] Speaker 08:
I am not suggesting that that is the record.

[00:58:03] Speaker 08:
Just so you feel safe, that's what's here.

[00:58:06] Speaker 08:
I'm just trying to understand how this process works.

[00:58:09] Speaker 08:
So if that's what happened in my hypothetical case, and it's a secret memo,

[00:58:14] Speaker 08:
And it doesn't get publicly disclosed.

[00:58:17] Speaker 08:
But the way people get on the scent of it is suddenly 100% of exemptions are being granted.

[00:58:25] Speaker 08:
The decision is entirely secret and locked up.

[00:58:27] Speaker 08:
No one can know what's going on.

[00:58:29] Speaker 08:
The memo is secret.

[00:58:31] Speaker 08:
The decisions are secret.

[00:58:32] Speaker 08:
Other than the bottom line, it shows up on dashboard, 100% of exemptions have been granted.

[00:58:38] Speaker 08:
In my hypothetical, how do people that are injured, by my hypothetical,

[00:58:44] Speaker 08:
final agency action, bring that lawsuit.

[00:58:50] Speaker 04:
I don't know that they could.

[00:58:52] Speaker 04:
If they have winded there has been a change within EPA, they can approach EPA.

[00:58:58] Speaker 04:
I'd imagine that there are ways in which they could seek prospective relief of some kind.

[00:59:02] Speaker 08:
Well, for obvious reasons, as if obvious or not.

[00:59:05] Speaker 08:
This is not, they don't know.

[00:59:07] Speaker 08:
It's kept secret.

[00:59:08] Speaker 08:
All they can see is the

[00:59:11] Speaker 08:
number of decisions on how they're coming out.

[00:59:13] Speaker 08:
So no APA lawsuit can be brought.

[00:59:15] Speaker 04:
If they don't have wind other than there are grants that are occurring.

[00:59:23] Speaker 08:
It's a racist so-called acquitter, they say.

[00:59:25] Speaker 08:
The proof's in the pudding.

[00:59:26] Speaker 08:
It's 100 percent.

[00:59:27] Speaker 08:
It used to be.

[00:59:29] Speaker 08:
tiny amount, and now it's a large amount and 100% are getting granted.

[00:59:33] Speaker 08:
That's the best they've got.

[00:59:34] Speaker 04:
I'll confess, I don't know a way in which to do that.

[00:59:37] Speaker 04:
Like I said, I think they can approach the agency, maybe initiate a rulemaking or something along those lines where they want standards or they want to err these types of things if they think there's a change.

[00:59:47] Speaker 04:
I think they can do that.

[00:59:48] Speaker 04:
Whether they can go back in time and undo certain things, I think that's slightly different.

[00:59:52] Speaker 07:
No, they only want prospective relief.

[00:59:53] Speaker 08:
They'd like to know what, obviously the law changed because

[00:59:58] Speaker 08:
There's no – this cannot possibly be a coincidence.

[01:00:01] Speaker 08:
It's happening nationwide consistently, and not only has the outcome changed, but the volume has increased 800 percent.

[01:00:09] Speaker 08:
Something has changed.

[01:00:12] Speaker 08:
They don't know whether any individual company might be entitled to an exemption or not.

[01:00:17] Speaker 08:
They just want – a new rule has been adopted.

[01:00:19] Speaker 08:
They want to challenge it.

[01:00:21] Speaker 04:
I understand, and I understand their frustrations with the jurisdictional and venue provisions in 307 and the ways in which to get into court.

[01:00:28] Speaker 08:
Well, you now acknowledge that there's a final agency action in my hypothetical, not this case, and so you don't have that jurisdictional problem.

[01:00:37] Speaker 04:
Right.

[01:00:38] Speaker 04:
Again, I'm not aware of a way in which to make that happen.

[01:00:41] Speaker 04:
But to be perfectly clear, the change in the hypothetical is there is a fundamental difference between an articulation policy or law and one that actually affects the regulated parties.

[01:00:53] Speaker 04:
And I see I'm out of time.

[01:00:54] Speaker 08:
No, go ahead and finish this.

[01:00:56] Speaker 08:
I understand.

[01:00:57] Speaker 08:
But what they say now is things have been released.

[01:00:59] Speaker 08:
So now we're not in a hypothetical world.

[01:01:01] Speaker 08:
But they say things have been released that document

[01:01:05] Speaker 08:
the articulation of this change in legal policy that hurts us, that affects us, that gives us an Article III injury and we would like to challenge it.

[01:01:14] Speaker 08:
We don't know whether we disagree or not with any individualized exemption decision because we don't have the full records in those cases and there's a lot of confidentiality.

[01:01:22] Speaker 08:
All we want to attack is that legal rule.

[01:01:25] Speaker 04:
Understood, but what I'm putting out is the difference between your hypothetical and, say, a policy statement as we would conceive of it here, which is the footnote says this is how EPA views it, but there's no actual effect on the regulated parties.

[01:01:40] Speaker 08:
So there's 13- I assume it's not just put in there for entertaining reading, that that is part of the explanation of the

[01:01:46] Speaker 08:
basis for decision.

[01:01:48] Speaker 04:
For some, there are 13 of these exemptions, several of which are in the joint appendix, where they scored in both of DOE's matrices and would be entitled regardless of that articulation in the footnote 10.

[01:02:02] Speaker 04:
So there are decisions in the record where that articulation has no effect, and that's why you need an adjudication to apply it.

[01:02:09] Speaker 08:
Am I right that all this information was disclosed after they filed their petition?

[01:02:13] Speaker 08:
All this information was disclosed after they filed their petition?

[01:02:16] Speaker 08:
I believe so.

[01:02:18] Speaker 08:
That seems troubling.

[01:02:19] Speaker 08:
Okay.

[01:02:19] Speaker 07:
I'm sorry, I interrupted both of your times too much.

[01:02:22] Speaker 04:
I'd say I'm over time, so unless there are any further questions, we ask the court to dismiss.

[01:02:26] Speaker 04:
Thank you very much.

[01:02:27] Speaker 04:
Thank you.

[01:02:29] Speaker 08:
Does Mr. Peterson have any time left?

[01:02:31] Speaker 03:
Two minutes?

[01:02:32] Speaker 03:
I'll be quick.

[01:02:35] Speaker 03:
I'll just say that it's a little bit of a shell game.

[01:02:37] Speaker 03:
But at JA 512, your memorandum, Your Honor, is there.

[01:02:43] Speaker 03:
It's a clear statement.

[01:02:44] Speaker 03:
It says, for the purpose of implementing the Clean Air Act section, EPA has determined that DEH can exist on the basis of adverse structure alone.

[01:02:52] Speaker 03:
It's applied consistently to everyone.

[01:02:54] Speaker 03:
And tellingly, EPA could point to no example where it wasn't used.

[01:02:58] Speaker 03:
this change in methodology has been used throughout.

[01:03:03] Speaker 03:
And in terms of the dashboard, that dashboard was created during the pendency of this case.

[01:03:10] Speaker 03:
So there wasn't even a dashboard when we filed this.

[01:03:12] Speaker 03:
We had zero information.

[01:03:14] Speaker 03:
And finally, I want to note that the relief that we have requested is prospective.

[01:03:18] Speaker 03:
I mean, I think we've been honest about that all along.

[01:03:21] Speaker 03:
Things have passed as you made, as the point you made, Your Honor.

[01:03:24] Speaker 03:
The time has passed.

[01:03:25] Speaker 03:
This forum happened on a rolling basis.

[01:03:27] Speaker 03:
These things, our cases, and they admit it, our cases moved.

[01:03:30] Speaker 03:
for the prior exemptions, the rings expired, the damage is done.

[01:03:34] Speaker 03:
What we're looking for is some sort of prospective relief in terms of them not being able to use this methodology going forward for future decisions.

[01:03:45] Speaker 03:
It has been applied and the numbers are there and it's in our brief.

[01:03:49] Speaker 03:
We show clearly where companies or refineries that wouldn't have gotten an exemption before are now entitled to an exemption

[01:03:58] Speaker 03:
And it's solely due to this revised methodology.

[01:04:01] Speaker 03:
It's solely due to this change that I think the court should look at the effect that it has and the way it was articulated is important, but it was articulated consistently.

[01:04:15] Speaker 03:
And I think these are a little bit unique circumstances because the confidential business information

[01:04:20] Speaker 03:
They do have an ability to push back against these companies and say, not everything is confidential.

[01:04:25] Speaker 03:
I don't know what it is about this program, that this agency, you would think we were dealing with national secrets here, but the fact is that there are ways for the agency to help itself and I don't think

[01:04:37] Speaker 03:
parties should have to use FOIA in order to bring an APA case on something that no one's denied happened.

[01:04:44] Speaker 03:
It's happened.

[01:04:44] Speaker 03:
It just seems that they're just trying to push us around to different courts, which has been unfortunately consistent with their practices.

[01:04:51] Speaker 08:
Just one quick practical question for you.

[01:04:52] Speaker 08:
Is there any legal barrier to you that to file a petition for review from the August 2019 decision that's only recently been made public?

[01:05:04] Speaker 08:
That I'm just, I could be, I'm not piecing all this

[01:05:07] Speaker 08:
together.

[01:05:08] Speaker 03:
The only legal barrier, I suppose, would be time.

[01:05:13] Speaker 08:
Are those ones now moot?

[01:05:15] Speaker 08:
Well, they've said it wasn't publicly released.

[01:05:19] Speaker 08:
until much later.

[01:05:20] Speaker 03:
Oh, no, I don't think there's any legal barrier.

[01:05:22] Speaker 08:
No, but I believe that member... So that was just a recent grant, so they wouldn't have the mootness problem either.

[01:05:29] Speaker 03:
Right, and I'll say that that memo, as we point out when we provide it to the court, all it is is, again, a repeat articulation of the same standard, and they haven't denied that they changed the methodology.

[01:05:41] Speaker 03:
We have a paper to point to now.

[01:05:42] Speaker 03:
Yeah, we had a paper all along.

[01:05:44] Speaker 03:
It's in every single... We have a policy memo.

[01:05:49] Speaker 03:
We have a policy that will previously... Separate from the adjudication decisions.

[01:05:53] Speaker 03:
They repeat it in every single adjudication decision.

[01:05:55] Speaker 03:
They use the exact same board plate language, and they say we've changed the methodology, we've changed the methodology.

[01:05:59] Speaker 08:
You just want prospective relief.

[01:06:00] Speaker 08:
So the fact that they said it before seems to me not your... As long as you've got them dead to rights now saying it in August 2019.

[01:06:08] Speaker 08:
Dead to rights, shall I say, just for purposes of this jurisdictional issue?

[01:06:13] Speaker 08:
Sure.

[01:06:13] Speaker 08:
They're saying it, right?

[01:06:15] Speaker 03:
I think it certainly helps us, but I don't think our jurisdiction was fatally flawed before, because they have just repeated the same words again and again.

[01:06:22] Speaker 03:
They first stuck it in one of the parties.

[01:06:25] Speaker 08:
I understand what your point is.

[01:06:25] Speaker 08:
I just wanted to make sure there wasn't something that I had missed in the discussion here as to why a petition from you couldn't be filed, whether you want to pronounce your decision.

[01:06:35] Speaker 08:
I'm just trying to make it that it wouldn't seem to have the mootness.

[01:06:38] Speaker 08:
I heard her say here that it wouldn't

[01:06:41] Speaker 08:
of one act in a timely manner, if you act within 60 days of public release, that it wouldn't have a timeliness issue, it wouldn't have the final agency action problem.

[01:06:50] Speaker 03:
Right.

[01:06:50] Speaker 08:
And Your Honor, I- And its venue is here.

[01:06:53] Speaker 03:
Well, I'm sure they'll challenge venue.

[01:06:55] Speaker 08:
No, they've told the other circuit it has to be here.

[01:06:58] Speaker 08:
Now, if they come here and tell us it has to be there, they're going to have a whole other problem to deal with, I think.

[01:07:02] Speaker 03:
Right.

[01:07:02] Speaker 03:
But I do believe, Your Honor, that the court can take judicial notice that this is, that that memorandum is just in our articulation of what they already did.

[01:07:11] Speaker 08:
We can take all the judicial notice, but you have to have jurisdiction of the time your petition is filed.

[01:07:16] Speaker 03:
Right.

[01:07:16] Speaker 03:
And we believe we have jurisdiction as articulated in all those decisions consistently.

[01:07:22] Speaker 03:
Thank you.

[01:07:25] Speaker 08:
All right, the case is submitted.