[00:00:00] Speaker 04:
Case number 18-1203 at L. Clean Wisconsin Petitioner versus Environmental Protection Agency at L. Before we begin, let me just say a couple things about the structure of our marathon oral argument today.

[00:00:20] Speaker 04:
Number one, when you approach the microphone, please.

[00:00:25] Speaker 04:
tell us who you are, who your client is, and give us a crisp sentence about what your issue is.

[00:00:32] Speaker 04:
That's number one.

[00:00:33] Speaker 04:
Number two, the time allotments are firm.

[00:00:39] Speaker 04:
If you have five minutes, you have five minutes.

[00:00:43] Speaker 04:
If we go over, it will only be because one of us is asking questions.

[00:00:47] Speaker 04:
And it's your responsibility to preserve your rebuttal time.

[00:00:52] Speaker 04:
And third, as you think about how to keep your arguments within the five minutes, remember that the court, we read the briefs, we're familiar with the record, so focus on the issues, okay?

[00:01:07] Speaker 04:
You may proceed.

[00:01:19] Speaker 08:
Good morning and may it please the court, Daniel Rottenberg on behalf of the state of Illinois.

[00:01:25] Speaker 08:
I will address the Monroe County designation and I would like to reserve two minutes for rebuttal please.

[00:01:32] Speaker 08:
The Clean Air Act requires that EPA conduct a designations process that is transparent, science-based, and driven by air quality factors.

[00:01:42] Speaker 08:
This court should vacate all of the challenged attainment designations at issue in this case because they are the result of a rulemaking that prioritized outcome over process and science.

[00:01:55] Speaker 08:
It is telling that EPA has declined to defend nine of the 16 areas challenged, including eight of the 10 areas challenged by Illinois and Chicago.

[00:02:06] Speaker 08:
With respect to the Monroe County designation,

[00:02:10] Speaker 08:
That final designation was the result of outside the record communications initiated by EPA four days before the court ordered designation deadline for the purpose of reversing years of technical work at the state and federal levels.

[00:02:27] Speaker 08:
The three sentence letter that EPA solicited to support its predetermined outcome does not cite a single air quality consideration.

[00:02:36] Speaker 08:
This constitutes quintessential arbitrary decision-making.

[00:02:40] Speaker 04:
As this court has held, the process by which EPA reaches a result... Even if you're right about the letter and its role in this, why can't the designation stand on the basis of the record here, which is, as EPA pointed out, that the number of violating monitors dropped from five down to one?

[00:03:02] Speaker 08:
That argument that EPA now sets forth is a red herring.

[00:03:06] Speaker 08:
Even if the process that led to EPA's reversal were not so clearly tainted, EPA still failed to explain why the facts and factors it relied on for its initial assessment were no longer relevant.

[00:03:18] Speaker 08:
Technical experts in Illinois and at EPA concluded throughout the entire process that Monroe contributes to a violating monitor, and the record supports this conclusion.

[00:03:30] Speaker 08:
Trajectories in the final technical support document still show transport from Monroe to the remaining violating monitor.

[00:03:40] Speaker 08:
Indeed, in the initial technical support document, EPA concluded that

[00:03:47] Speaker 08:
transport to the violating monitor comes predominantly from the south, and Monroe is directly to the south of the remaining violating monitor.

[00:03:56] Speaker 08:
So EPA concluded that Monroe contributes to a violating monitor, and it is still contributing to that violating monitor.

[00:04:03] Speaker 08:
All of the other metrics analyzed by Illinois and EPA remain the same.

[00:04:09] Speaker 08:
Because the Monroe designation is both procedurally and substantively flawed, this Court should vacate it.

[00:04:15] Speaker 08:
Thank you.

[00:04:18] Speaker 04:
Thank you.

[00:04:18] Speaker 04:
Well done.

[00:04:22] Speaker 04:
That's a great model for everybody.

[00:04:26] Speaker 04:
He set a high standard.

[00:04:30] Speaker 13:
Good morning, and may it please the court, Sue Chen for the United States.

[00:04:33] Speaker 13:
And with me today are Suki Hoshijima from the Justice Department and Seth Buxbaum from EPA.

[00:04:39] Speaker 13:
I'm here to respond to Monroe.

[00:04:42] Speaker 13:
I'd like to start by talking about petitioners standing and then move on to the merits.

[00:04:47] Speaker 13:
This court has no jurisdiction over the Monroe designation because petitioners have not shown standing.

[00:04:53] Speaker 13:
Illinois and Chicago claim direct injury in the form of vegetation damage to state and city parks in northeast Illinois, according to Dr. Zemba's supplemental declaration at paragraphs seven and eight, but that has nothing to do with Monroe, which is in southwest Illinois.

[00:05:09] Speaker 13:
Dr. Zemba relies on a partial trajectory map of Illinois.

[00:05:14] Speaker 13:
This is now at paragraph 22 of his first declaration, but that map cuts off a few counties north of Monroe, so they provided no specific evidence of causation or redressability.

[00:05:24] Speaker 15:
Ms.

[00:05:24] Speaker 15:
Chen, we also have a declaration from, I think it's a Cook County or St.

[00:05:30] Speaker 15:
Charles County resident, a Sierra Club member, Pamela Yankee, and so somebody who's in

[00:05:37] Speaker 15:
The Chicago area clearly has standing based on at least the claim that Monroe... Well, those standing declarations... Actually, I'm sorry.

[00:05:47] Speaker 15:
St.

[00:05:47] Speaker 15:
Louis.

[00:05:47] Speaker 15:
I'm getting confused.

[00:05:49] Speaker 15:
It's the St.

[00:05:50] Speaker 15:
Louis area resident that I'm talking about.

[00:05:53] Speaker 13:
Right.

[00:05:53] Speaker 13:
But those petitioners are not challenging the Monroe designation.

[00:05:57] Speaker 13:
They're challenging the Jefferson designation.

[00:05:59] Speaker 15:
I don't think it's limited.

[00:06:00] Speaker 15:
I think their petition was not so limited.

[00:06:02] Speaker 13:
No.

[00:06:02] Speaker 13:
In our brief, we set forth a chart of which petitioner is challenging what designations.

[00:06:07] Speaker 15:
I'm just saying that I don't see the record supporting that narrowness.

[00:06:11] Speaker 15:
And if it doesn't, then such a person would support standing, no?

[00:06:16] Speaker 13:
If the environmental groups are also challenging the Monroe designation, but they have not disputed what's in our brief, which is that they're not.

[00:06:26] Speaker 13:
We can ask them.

[00:06:27] Speaker 13:
OK.

[00:06:31] Speaker 13:
Nor does the Clean Air Act give Illinois parents patria authority at all by simply defining person to include states.

[00:06:38] Speaker 13:
Turning to the merits, I want to be clear on the Messina letter that EPA didn't rely on it in the holistic analysis, and we don't rely on the letter to defend EPA's analysis.

[00:06:49] Speaker 04:
It didn't rely on the Messina letter at all?

[00:06:53] Speaker 04:
That's not the way I read the record.

[00:06:56] Speaker 13:
Well, EPA noted the fact that Illinois revised its recommendation, but that's the same as how it notes the fact of every other state's recommendation.

[00:07:07] Speaker 13:
So we don't rely on it for the holistic analysis.

[00:07:09] Speaker 05:
I can understand why you would want to avoid the Messina letter, but it's a bit of a stretch, isn't it, to say you didn't rely on it at all.

[00:07:17] Speaker 13:
Not for the holistic analysis, no.

[00:07:20] Speaker 13:
What did you rely on it for?

[00:07:21] Speaker 13:
Well, it could go to notice, but as we discussed, the Messina letter makes notice inapplicable here, but even if notice were required, Illinois hasn't shown how it has been prejudiced by any procedural defect here.

[00:07:40] Speaker 13:
Really, how can it when Illinois is the one who wrote the letter that they're now complaining about?

[00:07:44] Speaker 13:
So you're not treating it as a change in the recommendation from the state?

[00:07:51] Speaker 13:
It is Illinois's revised recommendation of Monroe.

[00:07:56] Speaker 15:
I don't read the record that way because, in fact, I believe that the EPA's final TSD lists Monroe as a county that recommended non-attainment by the state, and I thought it was more just a

[00:08:11] Speaker 15:
maybe a waiver of the state's possible objection to that change, but not as an actual formal recommendation.

[00:08:19] Speaker 15:
In contrast to Missouri's letter, they talk about it, characterize it as a recommendation.

[00:08:26] Speaker 13:
There was a footnote to the original recommendation that noted that

[00:08:34] Speaker 13:
Illinois had revised its recommendation.

[00:08:37] Speaker 13:
And in any case, even if notice were required, Illinois has not shown that there were prejudice by any procedural defect.

[00:08:48] Speaker 04:
Well, if we think the letter did play a role, what about the petitioner's argument that there's an inconsistency between

[00:09:01] Speaker 04:
what the Messina letter offered as a basis for nonattainment, namely the 2014 data, which didn't change at all, and EPA's rationale.

[00:09:15] Speaker 04:
In other words, their argument is that the agency at least in part relied on a letter whose rationale for nonattainment is different than the one articulated by the agency.

[00:09:28] Speaker 04:
Don't we have to send that back?

[00:09:30] Speaker 13:
No, because EPA owes no deference to the state's recommendation.

[00:09:34] Speaker 04:
No, it's not a question of deference, it's a question of whether, if EPA in fact relied at least in part on the Messina letter, and the Messina letter's rationale is different from EPA's, and you don't say anything about that in your brief, doesn't that have to go back for an explanation at least?

[00:09:53] Speaker 13:
No, because EPA provided an explanation of its actual rationale, which is that the updated data showed that the St.

[00:10:02] Speaker 13:
Louis region's ozone problem is much smaller than... Okay, thank you.

[00:10:08] Speaker 04:
Okay, thanks.

[00:10:09] Speaker 04:
Mr. Rottenberg, you successfully preserved your little time plus a little more, I think.

[00:10:19] Speaker 15:
The destination is not adequately explained.

[00:10:21] Speaker 15:
We don't need to reach the question of EPA's compliance or not with the 120-day notification requirement.

[00:10:31] Speaker 15:
Does it affect the relief you're seeking at all?

[00:10:34] Speaker 08:
No, Your Honor.

[00:10:34] Speaker 08:
If the Court concludes that the support for the final destination is inadequate, you don't need to reach it, although the 120-day letter is relevant to Council for EPA's

[00:10:49] Speaker 08:
argument because EPA is now arguing that the Messina letter somehow constituted revised recommendation, but nowhere does the letter say that it is revising the EPA's recommendation, nor could it, as it does not contain any air quality analysis.

[00:11:09] Speaker 08:
With respect to our standing, paragraph 22 of Dr. Zemba's original declaration and paragraph 7 of the rebuttal declaration discuss transport from Monroe into the Chicago area, which of course is in the state of Illinois.

[00:11:27] Speaker 08:
The record and evidence before this court established that ozone pollution harms Illinois' proprietary, sovereign, and quasi-sovereign interests.

[00:11:36] Speaker 15:
And what's the harm there?

[00:11:40] Speaker 15:
What's the relevant harm from Monroe's allegedly incorrect designation?

[00:11:50] Speaker 08:
Well, there are multiple harms, both direct and to the well-being of our residents.

[00:11:56] Speaker 08:
The harm from, because if Monroe is designated non-attainment,

[00:12:01] Speaker 08:
sources in that area will not be required to reduce emissions as they would be were it properly designated.

[00:12:07] Speaker 15:
What I take EPA to be saying is so Monroe, even though it's in Illinois, is near St.

[00:12:13] Speaker 15:
Louis and the violating monitor that's at issue there is in the St.

[00:12:19] Speaker 15:
Louis area, right?

[00:12:21] Speaker 15:
And so what I take EPA to be saying is that to be in a position, to have cause and redressability to support standing, that what one has to have is somebody who would say, if this violation weren't occurring, I would no longer be harmed.

[00:12:40] Speaker 15:
And so it has to be someone in the St.

[00:12:41] Speaker 15:
Louis area

[00:12:43] Speaker 15:
who is saying I'm harmed and if Monroe were held to the law, my harm would be relieved.

[00:12:49] Speaker 15:
And I don't understand why Zemba's declaration is relevant to that.

[00:12:56] Speaker 15:
If they're right about that requisite.

[00:12:58] Speaker 08:
I don't believe it is.

[00:13:00] Speaker 08:
I read that to be EPA's argument with respect to the NGO's standing that they can't use declarations from members in contributing areas.

[00:13:08] Speaker 08:
And one of my co-council will address that argument

[00:13:13] Speaker 08:
However, with respect to Illinois, if sources in Monroe County were required to reduce pollution, that would benefit the state in many ways as we've laid out.

[00:13:29] Speaker 04:
Okay, thank you.

[00:13:32] Speaker 08:
Thank you.

[00:13:33] Speaker 04:
Yeah, thank you.

[00:13:35] Speaker 04:
Okay, we'll go on to Jefferson, right?

[00:13:45] Speaker 03:
May it please the court, Maxine Lapelos representing Sierra Club in challenging EPA's decision to exclude Jefferson County from the St.

[00:13:53] Speaker 03:
Louis ozone non-attainment area.

[00:13:56] Speaker 03:
I've asked to reserve one minute for rebuttal.

[00:13:59] Speaker 03:
The exclusion of Jefferson was arbitrary and capricious because EPA lacked a rational explanation for its decision.

[00:14:08] Speaker 03:
The need for a rational explanation was particularly compelling because the decision marked a dramatic change

[00:14:15] Speaker 03:
both from historic practice, as Jefferson has been in the non-attainment area since the 1979 ozone standards, and in this designation, as it represented a 180-degree reversal from EPA's intended non-attainment designation.

[00:14:30] Speaker 15:
Does the reversal itself have to be justified?

[00:14:32] Speaker 03:
The decision has to be justified.

[00:14:37] Speaker 03:
And I'm saying the need for an explanation

[00:14:40] Speaker 03:
is reinforced by the fact that it's a dramatic reversal.

[00:14:46] Speaker 15:
And just to circle back on Monroe County, Pamela Yankee, who's a Sierra Club member, has a declaration that she's in that St.

[00:14:55] Speaker 15:
Louis area and she's gone.

[00:14:57] Speaker 15:
Is Sierra Club not challenging Monroe County?

[00:15:01] Speaker 15:
As I read your petition, it was open-ended.

[00:15:06] Speaker 15:
Perhaps there's something we don't know.

[00:15:09] Speaker 03:
In fairness, I think we've focused on Jefferson County.

[00:15:14] Speaker 03:
The Sierra Club's focus for purposes of the St.

[00:15:17] Speaker 03:
Louis regional designation has been on the exclusion of Jefferson County.

[00:15:22] Speaker 03:
the state of Illinois and other parties were challenging the Monroe.

[00:15:27] Speaker 03:
St.

[00:15:28] Speaker 03:
Louis is a bi-state region.

[00:15:29] Speaker 03:
The Mississippi River bisects the area.

[00:15:32] Speaker 03:
It's treated as one area, but Sierra Club's claim with respect to EPA's decision for the St.

[00:15:38] Speaker 03:
Louis area is focused on the exclusion of Jefferson County.

[00:15:42] Speaker 15:
And when you say it's a claim, when I look at the petition, the petition was not so focused, but I'm trying to respond in my own mind to the

[00:15:51] Speaker 15:
to the EPA's standing contention, and so I'm trying to understand why, if there's a harmed individual there, who has a declaration submitted by one of the petitioners, is there any reason why we could not rely on that?

[00:16:06] Speaker 03:
We'd be happy to have you rely on it.

[00:16:08] Speaker 03:
We've only briefed Jefferson.

[00:16:10] Speaker 15:
The briefing, I understand, has been divided up.

[00:16:14] Speaker 03:
We're happy to have you rely on those declarations for the other petitioners as well.

[00:16:21] Speaker 03:
The only explanation that EPA offered for excluding Jefferson relied on the state of Missouri's focus on just three of the 17 days when the West Alton Monitor was in violation.

[00:16:33] Speaker 03:
That explanation is not rational.

[00:16:36] Speaker 03:
because it's contrary to EPA's own stated criteria, which is that you have to consider all 17 days.

[00:16:43] Speaker 03:
It ignores crucial facts in the record, which demonstrate throughout this designation process that Jefferson contributes to the West Alton Monitor.

[00:16:51] Speaker 03:
And it's materially different from EPA's treatment of Franklin County, another county in the same St.

[00:16:57] Speaker 03:
Louis metropolitan area.

[00:16:59] Speaker 03:
where EPA looked at all 17 violating days and rejected the state's revised recommendation to exclude Franklin, going beyond the state's focus just on three days.

[00:17:11] Speaker 03:
So in terms of EPA's criteria, EPA states in its final decision document, we note that

[00:17:17] Speaker 03:
that Missouri is focused just on the three states, but, quote, EPA notes that the other 14 days with ozone above the level of the next should also be assessed in a given appropriate way.

[00:17:28] Speaker 03:
That's at JA 1182.

[00:17:30] Speaker 03:
But EPA failed to do that for Jefferson.

[00:17:32] Speaker 03:
When it came to Franklin,

[00:17:34] Speaker 03:
EPA followed that statement by saying on five of the 17 days Franklin contributed and goes ahead and rejects the state's recommendation and includes the portion of Franklin with a large source.

[00:17:45] Speaker 03:
There's nothing about, there's no comparable analysis for Jefferson.

[00:17:50] Speaker 03:
I see that my time is up.

[00:17:52] Speaker 03:
I've reserved one minute for but I'll be happy to come back.

[00:17:56] Speaker 04:
Thank you.

[00:17:57] Speaker 04:
Thank you.

[00:18:05] Speaker 13:
The updated data for the St.

[00:18:07] Speaker 13:
Louis region showed that its ozone problem is much smaller than EPA had thought and centered farther away from Jefferson.

[00:18:15] Speaker 13:
That shifted the weight of the evidence by changing the context against which EPA assessed Jefferson.

[00:18:20] Speaker 13:
And what do I mean by that?

[00:18:22] Speaker 13:
Well, the trajectories traverse Jefferson and then they go through an urban area with much higher emissions before reaching the violating monitor, before reaching the ozone problem.

[00:18:31] Speaker 13:
And this is at JA 1181.

[00:18:33] Speaker 13:
And once EPA realized that the problem was a lot smaller than it had thought and farther away, and keeping in mind that there is a high emission area in between Jefferson and the ozone problem, it was reasonable for EPA to give less weight to evidence of Jefferson's trajectory and Jefferson's emissions.

[00:18:51] Speaker 15:
Although there's no quantification of that, is there?

[00:18:54] Speaker 15:
No.

[00:18:56] Speaker 15:
pollution starts on the wind and then picks up more, maybe appreciably more, doesn't mean that the original pollution didn't in fact travel to the city.

[00:19:08] Speaker 13:
But the question here is not whether there is, is there any evidence that some emissions might have ended up at the monitor.

[00:19:17] Speaker 13:
When EPA examines these areas, it's going to see evidence supporting a range of different conclusions, and EPA's job is to figure out where the weight of that evidence falls.

[00:19:27] Speaker 13:
And it can be really hard.

[00:19:28] Speaker 13:
Jefferson was a close call.

[00:19:30] Speaker 13:
But all else being equal, when there's less pollution, it's reasonable to think that fewer areas, especially farther away areas, contribute to the pollution problem.

[00:19:40] Speaker 13:
And that's the rational connection that we need to prevail here.

[00:19:43] Speaker 04:
Would you say something about the differential treatment

[00:19:46] Speaker 04:
Jefferson and Bowles Township, they're identical on all key factors, air quality data, emissions data, and back trajectories.

[00:19:56] Speaker 13:
They have similar profiles, but they are different distances.

[00:20:01] Speaker 04:
Where is there an explanation about why those different distances are material?

[00:20:07] Speaker 04:
I know they're different distances, but I didn't see any explanation for why those are significant from an environmental point of view.

[00:20:14] Speaker 13:
Well, EPA noted the fact of Franklin, the Bowles distance.

[00:20:19] Speaker 13:
There was a typo in there, but in... There was a what?

[00:20:22] Speaker 13:
A typo.

[00:20:22] Speaker 13:
There was a typo.

[00:20:23] Speaker 07:
Oh.

[00:20:23] Speaker 13:
APA said 20 kilometers.

[00:20:25] Speaker 13:
It surely should have been 39 miles.

[00:20:27] Speaker 04:
But EPA had... No, but that still doesn't answer my question.

[00:20:30] Speaker 04:
I mean, it's one thing to say there are different distances.

[00:20:33] Speaker 04:
I get that.

[00:20:34] Speaker 04:
But why are those particular distances significant?

[00:20:39] Speaker 13:
I get that this might not be written in the record with pristine clarity.

[00:20:43] Speaker 04:
So I didn't miss it.

[00:20:44] Speaker 04:
It's not there, right?

[00:20:46] Speaker 13:
It's reasonably discernible.

[00:20:47] Speaker 04:
Oh, it is?

[00:20:48] Speaker 04:
Yes.

[00:20:49] Speaker 04:
Where?

[00:20:50] Speaker 04:
How would I do that?

[00:20:51] Speaker 04:
By the fact that EPA said the miles are different, and therefore we should assume that it thought that was significant from an environmental point of view?

[00:20:58] Speaker 13:
EPA noted the distance for Franklin, and this is the context of EPA's weight of the evidence analysis.

[00:21:05] Speaker 13:
It was noticing one piece of evidence, and it's reasonably discernible that it's weighing the evidence differently.

[00:21:12] Speaker 13:
Happy to answer any more questions?

[00:21:14] Speaker 13:
Thank you.

[00:21:20] Speaker 03:
What you just heard is post-hoc rationalization of counsel.

[00:21:26] Speaker 03:
There's nothing in the record that indicates that EPA relied on the relative distances between the Franklin source and the Jefferson County sources.

[00:21:34] Speaker 03:
There's no discussion whatsoever of the distances of the Jefferson sources.

[00:21:38] Speaker 03:
The difference of 10 miles is negligible by EPA's own account.

[00:21:46] Speaker 03:
In response to comments, EPA says that

[00:21:48] Speaker 03:
The maximum impact of sources is felt from 31 to 62 miles, and the impacts can go up to 124 miles.

[00:21:58] Speaker 03:
So if they think that a 10-mile difference in source impacts is relevant, they would have said something.

[00:22:04] Speaker 03:
But they have to explain their decision.

[00:22:08] Speaker 03:
The only explanation they offer is focused solely on three days, and it's on page JA 1186.

[00:22:15] Speaker 03:
It's the only place where they explain why they're excluding Jefferson, and they say it's further away from the violating monitor and less likely contribute to the stagnation conditions highlighted by Missouri on the three highest ozone days.

[00:22:30] Speaker 03:
There's nothing about the 14 other violating days, and it's not a rational decision on that basis.

[00:22:38] Speaker 04:
Okay, thank you.

[00:22:38] Speaker 04:
Thank you.

[00:22:42] Speaker 04:
Next is... Ottawa.

[00:22:47] Speaker 04:
Who do we have next?

[00:22:48] Speaker 04:
Ottawa?

[00:22:49] Speaker 04:
Right?

[00:22:59] Speaker 11:
May it please the court, David Bach, on behalf of Petitioner Sierra Club, I'll be addressing the Ottawa County, Michigan

[00:23:06] Speaker 11:
designation and I preserved one initial minute for rebuttal.

[00:23:11] Speaker 11:
The Ottawa County designation should be vacated and remanded because EPA neither performed a five-factor analysis nor explained why such analysis was not required.

[00:23:21] Speaker 11:
EPA refused to perform such analysis, even though CR Club submitted detailed comments showing that each of the five factors supported a finding that Ottawa was contributing to non-attainment in nearby Muskegon and Allegheny counties.

[00:23:34] Speaker 05:
Isn't the issue here the meaning of the word nearby?

[00:23:37] Speaker 05:
And haven't we said that they get to choose what nearby means?

[00:23:41] Speaker 05:
That they can use the narrow view or the larger view?

[00:23:46] Speaker 11:
So, Your Honor, I have three points in response to that.

[00:23:48] Speaker 11:
First, EPA never disputed that Ottawa was nearby Muskegon and Allegan until it filed its opposition brief.

[00:23:54] Speaker 11:
So this is a post-doc rationalization.

[00:23:56] Speaker 11:
In fact, the final technical support document contains a statement, a broad conclusory statement saying that other nearby areas do not contribute

[00:24:05] Speaker 11:
to non-detainment of Muskegon and Allegan.

[00:24:07] Speaker 11:
So they're acknowledging that these other areas are nearby.

[00:24:09] Speaker 11:
They're just refusing to analyze them.

[00:24:12] Speaker 11:
The second point on that is that we submitted detailed comments showing that Ottawa contributed to non-detainment of Muskegon and Allegan.

[00:24:19] Speaker 11:
And this court in the Mississippi Commission case stated that if a petitioner shows that a persuasive five-factor analysis, that's relevant to whether the area should be analyzed under the nearby

[00:24:34] Speaker 11:
That's at 790F.3D1534.

[00:24:41] Speaker 11:
And the last point is that the weight of the evidence indicates that Ottawa is nearby these two counties.

[00:24:45] Speaker 11:
It's sandwiched in between Allegan and Muskegon, the two counties with violating monitors.

[00:24:50] Speaker 11:
All three are in the same combined statistical area.

[00:24:53] Speaker 11:
All three are connected by Highway 31.

[00:24:56] Speaker 11:
The modeling shows air masses moving from Ottawa to the violating monitors in these unattaining areas.

[00:25:02] Speaker 11:
Ottawa is the largest emitter of all the three counties.

[00:25:04] Speaker 11:
And the city of Holland, where the Allegan Monitor is located, actually lies partially in Allegan and partially in Ottawa.

[00:25:10] Speaker 11:
In fact, I believe the violating monitor is actually across the street from Ottawa County.

[00:25:15] Speaker 11:
So as to the nearby question, we just don't think that, I mean, the primary thing is that it's a post-TAC rationalization.

[00:25:22] Speaker 11:
But we don't think the way that the evidence would support it either.

[00:25:26] Speaker 04:
And if you're right about that, the proper remedy is a remand, correct?

[00:25:30] Speaker 04:
I would defer the further discussion of that to co-counsel, but certainly... I ask it because you do say in your brief that... Do I remember you saying in your brief that you want this court to say Ottawa is a non-attainment?

[00:25:47] Speaker 04:
How could we do that?

[00:25:49] Speaker 11:
No, I don't believe that's our position.

[00:25:52] Speaker 11:
I don't know.

[00:25:53] Speaker 11:
You may have said that.

[00:25:54] Speaker 04:
So what is your position?

[00:25:55] Speaker 11:
So we agree that remand and vacancy, yes.

[00:25:57] Speaker 04:
Oh, you do?

[00:25:57] Speaker 04:
Good.

[00:25:57] Speaker 04:
All right.

[00:25:58] Speaker 04:
Excellent.

[00:25:59] Speaker 11:
Okay.

[00:26:01] Speaker 04:
Ms.

[00:26:02] Speaker 04:
June.

[00:26:07] Speaker 13:
The Clean Air Act doesn't require EPA to analyze all areas in the country for contribution every time there's a violating monitor somewhere, just the nearby ones.

[00:26:16] Speaker 13:
So when EPA sees a violating monitor, the threshold inquiry is, what is nearby?

[00:26:21] Speaker 13:
And it answers that question by defining the area of analysis.

[00:26:24] Speaker 13:
And here's how it does that.

[00:26:26] Speaker 13:
EPA interprets nearby to mean the combined statistical area or, as appropriate, the core-based statistical area.

[00:26:33] Speaker 13:
And that interpretation was upheld by this court

[00:26:36] Speaker 13:
in Mississippi Commission.

[00:26:37] Speaker 04:
Could you point us to the place in the record where the agency explains its choice?

[00:26:45] Speaker 04:
Sure.

[00:26:46] Speaker 04:
Even if you're right, and you are right, that EPA has a discretion to use one or the other, it has to explain why it's doing that, right?

[00:26:55] Speaker 04:
Sure.

[00:26:55] Speaker 04:
So where did it do that?

[00:26:56] Speaker 13:
If you look at the beginning of the final designation for Michigan at JA 1110 and 1112 EPA discusses the scope of the area it would analyze for determining non-attainment boundaries and it goes on to explain that it's going to take into account the region's unique meteorology

[00:27:13] Speaker 13:
and emissions locations to determine the scope of its approach to analyzing the five factors.

[00:27:18] Speaker 13:
And then, at JA 1127 to 28, EPA has an extended discussion on regional meteorology in the context of western Michigan.

[00:27:28] Speaker 13:
Then at JA 1130... And how is this an answer to my question?

[00:27:33] Speaker 13:
This is where it's just explaining that we're going to look at meteorology to decide the area of analysis.

[00:27:41] Speaker 13:
In other words, what is nearby?

[00:27:43] Speaker 04:
My question was, where does it explain its choice of the core-based standard versus the combined standard?

[00:27:49] Speaker 13:
This is at JA 1127 to 28, when it's looking at the meteorology, and it saw that there were no, the other areas in western Michigan are not the problem when it comes to Allegan and Muskegon, and so can use the smaller area, the core-based area, and that is at JA 1130 and 1139, when EPA shows that areas of analysis in Ottawa is in neither area.

[00:28:17] Speaker 13:
I mean, to figure out whether to use the combined area or the core-based area, EPA's very practical answer is we're going to use the area that captures the likely contributing suspects, which then have to go through the holistic analysis.

[00:28:34] Speaker 13:
That's the area of analysis.

[00:28:35] Speaker 13:
And here, EPA used the meteorology and emissions information for the region to figure out who the likely suspects are.

[00:28:45] Speaker 15:
I thought that they were a little bit more separate inquiries than that, that there was an inquiry about the area of analysis and that the factors you're talking about

[00:28:56] Speaker 15:
I thought were more going to the merits of contribution.

[00:29:01] Speaker 13:
So there are overlaps in what EPA looks at, but these are different decisions at different stages made for different purposes.

[00:29:10] Speaker 13:
I understand this is kind of abstract, so let me try to explain using an example that's closer to home.

[00:29:16] Speaker 13:
Let's say you need to hire law clerks again and you get a mountain of applications.

[00:29:22] Speaker 13:
You're not going to interview every single applicant.

[00:29:25] Speaker 04:
You're not suggesting this is a hypothetical, are you?

[00:29:28] Speaker 13:
No, of course not.

[00:29:33] Speaker 13:
What you do instead is you winnow down the pile based on certain criteria and you end up with a smaller pile of the likely applicants and you're going to bring those people in for interviews.

[00:29:43] Speaker 13:
And so the winnowing down and the interviews is roughly analogous to the relationship between defining the area of analysis and doing the holistic analysis that you're talking about, Judge Pollock.

[00:29:54] Speaker 15:
But isn't it the case that the EPA guidance treats the CSA as the sort of presumptive unit and then

[00:30:03] Speaker 15:
on the way that it's worded is sort of in certain circumstances where it may be appropriate to use a CBSA.

[00:30:08] Speaker 15:
So I would take that to mean if you have, you know, flatland, open air, contiguous counties that you're going to do CSA, and then if you have, you know, some things on one side versus the other of a mountain ridge,

[00:30:23] Speaker 13:
that you might not.

[00:30:25] Speaker 13:
I think in this version of the guidance, EPA took out the word presumptive in that context, but it still says we're going to use the combined area or as appropriate the core base area.

[00:30:36] Speaker 13:
So see what you mean by like, you know, start with a bigger area.

[00:30:39] Speaker 13:
And what EPA did here was walk around and saw that there were no likely suspects in the combined area in Western Michigan.

[00:30:48] Speaker 13:
And so therefore, it was OK to use a smaller core base area here.

[00:30:55] Speaker 04:
Thank you.

[00:30:56] Speaker 04:
Let's see, we have an intervener here.

[00:31:00] Speaker 04:
Mr. Gordon.

[00:31:07] Speaker 00:
May it please the Court, my name is Neil Gordon.

[00:31:09] Speaker 00:
I represent the state of Michigan.

[00:31:11] Speaker 00:
I will address three points that petitioners made in their reply brief.

[00:31:15] Speaker 00:
First, the record demonstrates that EPA did, in fact, analyze whether emissions from Ottawa County impact the monitor in neighboring Muskegon County.

[00:31:25] Speaker 00:
Second, there is nothing in the record that shows that emissions from the J.H.

[00:31:29] Speaker 00:
Campbell power plant in Ottawa County reached that monitor on any exceedance day.

[00:31:35] Speaker 00:
And third, petitioners have waived the issue of whether ozone concentrations in Ottawa County exceed the ozone standard because they never raised that issue in their comments.

[00:31:45] Speaker 00:
Now, in the limited time that I have, I will elaborate on the first two points.

[00:31:49] Speaker 00:
First, petitioners are wrong when they claim that EPA did not analyze whether emissions from Ottawa County impact the monitor in the city of Muskegon.

[00:31:58] Speaker 00:
In fact, both EPA and Michigan analyzed meteorological data to see if emissions from Ottawa County and from outside of Michigan contribute to the exceedance days in Muskegon.

[00:32:09] Speaker 00:
Michigan used the high-split computer model to chart the path or back trajectory of air masses on exceedance days.

[00:32:16] Speaker 00:
And on page 43 of its recommendation at JA333, Michigan concluded that emissions from Ottawa County showed, quote, no influence on the monitor in Muskegon on those exceeding states.

[00:32:28] Speaker 00:
And EPA did the same thing.

[00:32:30] Speaker 00:
EPA also used the high split computer model, and it similarly determined at JA1130 that, quote, nearby counties do not contribute to the violating monitor in Muskegon.

[00:32:41] Speaker 15:
I thought that there was some evidence in the record that emissions from the J.H.

[00:32:46] Speaker 15:
Campbell plant exceeded 1% of the 2015 primary ozone nacks on 43 different days at the monitors at Muskegon.

[00:32:56] Speaker 15:
and that that plant is over a third of the carbon dioxide or the nitrogen oxide emissions in the county.

[00:33:12] Speaker 15:
So it's a big source and I thought there was data showing that it contributed to exceedances.

[00:33:17] Speaker 00:
There is not.

[00:33:19] Speaker 00:
There is not in the record.

[00:33:20] Speaker 00:
They cite to one high split back trajectory of an air mass that starts at 1,000 meters over the monitor in the city of Muskegon and some 40 miles away from that monitor travels over a small southwestern corner of Ottawa County.

[00:33:36] Speaker 00:
That one back split trajectory by itself is not sufficient to demonstrate that Ottawa County should be designated as nonattainment because back trajectories by themselves only model the movement of an air parcel.

[00:33:50] Speaker 00:
It doesn't identify the emissions in that parcel.

[00:33:54] Speaker 00:
And petitioners provided no information about the emissions

[00:33:58] Speaker 00:
in that one air parcel for that back trajectory.

[00:34:01] Speaker 00:
They simply cite to a back trajectory, and that's not sufficient.

[00:34:05] Speaker 00:
And frankly, if you go to that back trajectory, which is at Figure 12 in the TSD at Page 29, that back trajectory does not, as Petitioner suggests as a factual matter, actually travel over the G.H.

[00:34:17] Speaker 00:
Campbell power plant when you look at it carefully.

[00:34:20] Speaker 00:
So I see that my time is up.

[00:34:24] Speaker 04:
Okay, let's see.

[00:34:29] Speaker 04:
Ms.

[00:34:29] Speaker 04:
Chen, 1.5 minutes.

[00:34:34] Speaker 13:
I don't have anything to add to Michigan's argument, but I'm happy to answer any questions.

[00:34:40] Speaker 15:
What about the study that Sierra Club produced?

[00:34:44] Speaker 15:
I think they claimed that the EPA just didn't analyze it, sort of said it's outside, we're not going to look at it.

[00:34:52] Speaker 13:
EPA responded and said they didn't provide enough information.

[00:34:56] Speaker 13:
I mean, what Sierra Club

[00:34:59] Speaker 13:
does acknowledge is that some of that data is basically stale because it reflected in the 2011 emissions back before Campbell upgraded its facilities.

[00:35:10] Speaker 13:
And then afterward, Sierra Club says, well, sometimes the Campbell plant still emits a lot,

[00:35:19] Speaker 13:
Well, okay, but what are those times?

[00:35:21] Speaker 13:
Because if you're emitting a lot on the first of the month and the exceedance doesn't happen until five weeks later, well, how is that emission relevant?

[00:35:29] Speaker 13:
And Sierra Club hasn't provided that data.

[00:35:32] Speaker 13:
And as Michigan just explained, the trajectory analysis also doesn't connect the dots between Campbell and the violating monitors.

[00:35:43] Speaker 04:
Thank you.

[00:35:51] Speaker 11:
I'd like to respond briefly to this question about the J.H.

[00:35:56] Speaker 11:
Campbell study.

[00:35:58] Speaker 11:
So we did acknowledge, we've always acknowledged that the emissions profile of this plant has changed since the study was done.

[00:36:07] Speaker 11:
However, regional meteorology has not changed.

[00:36:10] Speaker 11:
And this study showed up to 4.6 parts per billion going from the J.H.

[00:36:15] Speaker 11:
Campbell plant to Muskegon

[00:36:18] Speaker 11:
a few years ago and so that suggested the meteorology is moving pollution from this plant to the violating monitor.

[00:36:26] Speaker 11:
So the fact that the emissions may have gone down, there still is likely to be transport and we also showed that

[00:36:34] Speaker 11:
this study had modeled greater than 1% of the ozone contributions at emissions levels that were still occurring after the upgrade.

[00:36:44] Speaker 11:
So we understand that EPA may not have thought the model was fully conclusive, but if it didn't believe that, it should have investigated the matter further rather than rejecting what was the best available evidence of whether pollution actually moves from this particular source to the violating monitors.

[00:37:02] Speaker 11:
The other point,

[00:37:03] Speaker 11:
is that there are many other sources in Ottawa.

[00:37:06] Speaker 11:
J.H.

[00:37:07] Speaker 11:
Campbell is about 40 percent of the NOx emissions, but there are other sources as well.

[00:37:10] Speaker 11:
So this study showing a significant impact in the recent past from only one source in Ottawa would cause a rational decision maker to take a closer look at the county as a whole.

[00:37:24] Speaker 15:
CBSA versus CSA designation, this has in the last couple of designations, it's also been viewed as a CBSA, isn't that correct?

[00:37:36] Speaker 15:
So there's something of a consistent tradition of

[00:37:39] Speaker 15:
chopping up this area in this way?

[00:37:41] Speaker 11:
Your Honor, EPA cited to a, I believe it was the 1997 Ozone MAX, discussing that.

[00:37:48] Speaker 11:
And from that designation, there's no actual discussion of how the designations were done.

[00:37:53] Speaker 11:
And all of the three counties were designated as non-attainment, so it's not really possible from that document to determine how the analysis was done.

[00:38:01] Speaker 11:
But at minimum, that was also a post-hoc point that EPA made.

[00:38:06] Speaker 11:
There's nothing in the decision document itself that ever said this county, which is sandwiched in between these two counties with violating monitors, is not nearby.

[00:38:15] Speaker 11:
And in fact, what Council for EPA cited, JA 1130, contains a statement that's saying other nearby areas do not contribute.

[00:38:24] Speaker 11:
So it's a conclusory statement, but it recognizes that they're nearby.

[00:38:28] Speaker 11:
Thank you, Your Honors.

[00:38:39] Speaker 10:
Good morning, and may it please the court, Robert E. Kiley on behalf of the Boulder County Commissioners, the Center for Biological Diversity, National Parks Conservation Association, and Sierra Club, which I'll collectively refer to as Boulder County.

[00:38:57] Speaker 10:
I'm addressing the exclusion of northern Welk County from the Metro Denver non-entainment area.

[00:39:06] Speaker 10:
Northern Welk County submissions are huge, but that problem

[00:39:11] Speaker 10:
alone is not enough to reverse EPA's decision.

[00:39:17] Speaker 10:
However, EPA is required to use a methodology that's consistent with other areas as well as rational.

[00:39:28] Speaker 10:
In this case, EPA chose to evaluate northern Weld County submissions compared to Weld County as a whole.

[00:39:38] Speaker 10:
But that gives you a skewed analysis because Weld County as a whole, their admissions are massive.

[00:39:48] Speaker 10:
If you look at the table on page 118 of the opening brief, you see in the middle there's this huge bar, much bigger than any other, and that's Weld County Submissions.

[00:40:06] Speaker 10:
So if EPA had done its traditional approach of comparing

[00:40:13] Speaker 10:
areas that it intends to exclude compared to areas that it intends to include, it would have reached the conclusion that northern Weld's emissions are massive.

[00:40:27] Speaker 10:
For example, it is in the non-endemic area and northern Weld's counties VOC emissions are nine times greater.

[00:40:38] Speaker 10:
So EPA's approach was both inconsistent with how it normally looks at emissions, but also provided that skewed view.

[00:40:50] Speaker 10:
And even using the skewed approach, Northern Wells knocks emissions for 25%.

[00:40:57] Speaker 10:
It's not a one or two or small amount.

[00:41:02] Speaker 10:
It's still very significant.

[00:41:05] Speaker 10:
I'll turn to my statutory argument about how the 107D does not include the term significant, but there's no evidence in the record that EPA honored that difference.

[00:41:25] Speaker 10:
In the EPA's guidance, they did say that their approach to determining which areas contribute is similar to their approach to analyzing rural transportation areas, but rural transportation area statute uses the term significant.

[00:41:49] Speaker 10:
I see my time is up.

[00:41:51] Speaker 10:
Thank you.

[00:42:01] Speaker 14:
Good morning.

[00:42:02] Speaker 14:
Suki Hosujima for the United States.

[00:42:05] Speaker 14:
EPA's partial non-attainment designation in Weld County was driven primarily by the unique topography and meteorology of the Denver area.

[00:42:14] Speaker 15:
Now in terms of the meteorology, I didn't even see it relying on the meteorology and the agency's explanation.

[00:42:20] Speaker 15:
It's relying on it in the briefing and giving a sort of a de novo interpretation, but I didn't see that in the

[00:42:28] Speaker 14:
That's not right, Your Honor.

[00:42:29] Speaker 14:
In the final TSD, EPA refers in several places to the closed basin effect.

[00:42:36] Speaker 14:
It is a meteorological phenomenon that is a result of the combination of the topography, the elevated terrain on three sides, and the air circulation patterns of the area.

[00:42:49] Speaker 14:
So when EPA is referring to the closed basin effect, it's referring to both the topography and the meteorology.

[00:42:57] Speaker 15:
And the topography, there was some back and forth and some sort of bit of keystone cops in where there was a ridge or if it wasn't a ridge.

[00:43:06] Speaker 15:
In fact, the ridge, the height of the ridge appears to be closer to the Colorado-Wyoming border and EPA's own

[00:43:16] Speaker 15:
data shows the bowl includes Weld County, including the northern part.

[00:43:21] Speaker 15:
And so what I was referring to in terms of meteorology is high split data.

[00:43:27] Speaker 15:
And the high splits seem to show that, as much of EPA's own information shows, that this is a bowl where you would think the highest emitting sources are in the mix.

[00:43:39] Speaker 15:
The highest emitting, including southern and northern Weld.

[00:43:42] Speaker 14:
So the high split data does show some back trajectories that go over the northern part of Weld County, but it's many fewer relative to the rest of the Denver area in the interior.

[00:43:54] Speaker 05:
Why does that matter that it's fewer?

[00:43:56] Speaker 14:
Well, because EPA... We're looking for contribution.

[00:43:59] Speaker 05:
We're not looking for comparative contribution.

[00:44:01] Speaker 14:
Sure.

[00:44:01] Speaker 14:
So EPA is looking at the high split data, but the high split is a model of predicted air trajectory.

[00:44:07] Speaker 14:
But to understand high split, you have to take into account the other factors, such as here the topography.

[00:44:14] Speaker 14:
And petitioners aren't actually contesting this idea of a closed basin.

[00:44:19] Speaker 14:
They're not contesting the idea that emissions within the basin are kept inside of it, and emissions from outside are not going to be contributing.

[00:44:28] Speaker 14:
All they're quibbling with is the line drawing about where the northern bounds of the closed basin is.

[00:44:35] Speaker 15:
BPA... And you don't seem to be contesting that there was an error in the original

[00:44:40] Speaker 15:
proffer description of that and that there's a kind of more of a high area and not a ridge in Northern Weld and that it's open to the downland area.

[00:44:51] Speaker 14:
Well, Cheyenne Ridge, Your Honor, it's not a stark cliff that appears out of a flat area.

[00:44:57] Speaker 14:
It's not so easy to say, here is the inside of the basin, here's the cliff, here's the outside.

[00:45:03] Speaker 14:
Instead, it's a gradual slope.

[00:45:06] Speaker 14:
And Your Honor is correct that the high point is somewhere closer to the Wyoming and Colorado border.

[00:45:13] Speaker 05:
But you can't... Is it your argument that the Cheyenne Ridge restricts the emissions?

[00:45:17] Speaker 05:
That's right.

[00:45:18] Speaker 05:
How does it do that?

[00:45:19] Speaker 14:
It's in combination with the air circulation patterns of the area.

[00:45:24] Speaker 14:
And it's a fairly complicated technical conclusion that EPA reaches by considering it identified four different air circulation patterns in combination with the elevated terrain it forms a basin.

[00:45:38] Speaker 14:
Now again, petitioners aren't contesting this idea of a basin that restricts emissions.

[00:45:43] Speaker 14:
The question is just where EPA drew the line.

[00:45:46] Speaker 14:
EPA here had to draw a line as to where on the elevated terrain of Cheyenne Ridge it was going to end the non-attainment area.

[00:45:56] Speaker 14:
And there are many reasonable ways EPA could have drawn that line because there's not a single place where you can say this is the inside of the basin, this is the outside.

[00:46:05] Speaker 14:
EPA acted reasonably here by referring to a prior non-attainment boundary that was drawn in the same place as it was here in the 1997 and the 2008 rounds of designations.

[00:46:20] Speaker 14:
where EPA had to make a judgment call about where in the elevated terrain it was going to draw the northern boundary, it reasonably decided that the non-attainment boundary that already exists and roughly corresponds to the northern part of the basin was a reasonable place to draw the line.

[00:46:38] Speaker 15:
Petitioners point out that there are other equally high areas that are

[00:46:44] Speaker 15:
treated as within the basin, so the height doesn't really, it's not consistently treated, and the line itself is not a line that tracks really any feature, but is just one straight parallel, so it feels a little arbitrary in a, kind of in a geological sense, at least that would be their position, and your response to that is, yeah, it's gonna be a matter of degree, and we had to draw it somewhere, and it's a little straight, but good enough.

[00:47:14] Speaker 14:
So if you look at the map in page 55 of our brief, it's a copy of JA1081 with red lines drawn to indicate where Weld County is.

[00:47:25] Speaker 14:
It shows that the line is roughly separating the yellow elevated part of northern Weld County from the greener lower down area within the basin.

[00:47:36] Speaker 14:
Now, exactly where to draw the line based on this altitude is going to be a judgment call.

[00:47:43] Speaker 14:
And EPA acted reasonably here.

[00:47:57] Speaker 10:
Thank you.

[00:47:59] Speaker 10:
As to using the prior line, that analysis completely ignores the hydrological or fracking revolution.

[00:48:11] Speaker 10:
We just reached the 10-year anniversary of the fracking revolution.

[00:48:17] Speaker 10:
And so emissions, again, in northern Well County are massive, and they are caused by oil and gas.

[00:48:26] Speaker 10:
which was enabled by fracking technology, which didn't exist in 97 and was barely used in 2008.

[00:48:35] Speaker 10:
So that's an arbitrary consideration.

[00:48:38] Speaker 10:
In terms of the basin, we didn't contest that concept because of EPA being entitled to extreme deference.

[00:48:48] Speaker 10:
But actually, if you look at the high split lines, most of them that run through northern wealth start in Wyoming.

[00:48:57] Speaker 10:
Also on that point of the high split, it's not actually true that most of the high split lines start in the southern part.

[00:49:09] Speaker 10:
If you look at J1067 or 1068 or 1069, so for three of the monitors, there's actually more lines that run through northern and southern well than just through

[00:49:26] Speaker 10:
It's only that four columns west monitor where there's a predominance of lines running through southern that don't include northern.

[00:49:37] Speaker 10:
And finally, on page 116, it's clear that the eastern part of northern Weld is the same elevation.

[00:49:48] Speaker 10:
There is no change in elevation between the non-attainment and the attainment.

[00:49:54] Speaker 15:
Is it page 116?

[00:49:55] Speaker 15:
Is that a brief page or a JA page?

[00:49:58] Speaker 10:
A brief page.

[00:49:59] Speaker 10:
We've reproduced the... Right, got it.

[00:50:02] Speaker 10:
It's actually the same picture as Council for EPA referred to.

[00:50:09] Speaker 10:
On the eastern part, which is the lower part of the page, there's no change in elevation.

[00:50:17] Speaker 10:
I see... Thank you.

[00:50:19] Speaker 10:
Thank you.

[00:50:35] Speaker 01:
Good morning, Your Honors.

[00:50:36] Speaker 01:
Howard Lerner for Petitioner's Environmental Law and Policy Center and Respiratory Health Association.

[00:50:42] Speaker 01:
And I'll address how EPA changed the Lake County designation from the initial non-attainment to the final partial attainment, even though there were no changes at all in the facts or the scientific data.

[00:50:55] Speaker 01:
This was part of a pattern of unjustified, results-oriented changes that trumped the scientific data.

[00:51:02] Speaker 01:
It should be reversed.

[00:51:04] Speaker 01:
EPA's last minute changes treat only northern Lake County as non-attainment.

[00:51:10] Speaker 01:
And this is analogous to the Catawba County case, 571 F3rd at 51, where the court reversed, and I quote, because EPA's rationale changed between the initial designation and the final designation with no apparent change in data.

[00:51:27] Speaker 01:
The process matters.

[00:51:29] Speaker 01:
No data changed here.

[00:51:30] Speaker 01:
The record data shows that all of Lake County contributes to attainment.

[00:51:35] Speaker 15:
Isn't EPA, I mean, it's not like EPA has promulgated a rule and then is changing a rule and needs to justify.

[00:51:42] Speaker 15:
It puts forward a proposal and if its thinking and analysis and clarification based on input refines its analysis, it can change without change data.

[00:51:53] Speaker 15:
No?

[00:51:53] Speaker 15:
Do you disagree that the standard really is looking to the final designation and asking is it rational?

[00:52:01] Speaker 15:
not whether the change from somehow the cast-in-stone original initial designation.

[00:52:06] Speaker 01:
We disagree only in the following way, and this is Catawba County and this is the Mississippi Commission case.

[00:52:13] Speaker 01:
EPA made an initial designation based on facts and scientific data in the record.

[00:52:19] Speaker 01:
Then there was a last-minute switch in which EPA, with no

[00:52:27] Speaker 01:
evidence being submitted, no party, the state of Indiana didn't recommend it, all of a sudden decides at the very end it's going to include half and take out somewhat more than half and looks at only some of the factors as opposed to all the factors.

[00:52:44] Speaker 04:
But it pointed out, you're right, there's no new data, but it pointed out that Northern Lake County contains almost all the point sources

[00:52:55] Speaker 04:
Most of the population, overwhelming percent of the population, 98 and 99 percent of the volatile and NOx emissions.

[00:53:02] Speaker 04:
So why isn't, I realize there's no change in data, but why isn't that observation sufficient to justify?

[00:53:09] Speaker 01:
Because of the five factors, that's only part of the picture.

[00:53:12] Speaker 01:
The other part of the picture deals with traffic.

[00:53:16] Speaker 01:
Crown Point, the county seat, is in southern Lake County.

[00:53:19] Speaker 01:
The I-69 interstate highway runs between northern and southern.

[00:53:24] Speaker 01:
EPA didn't look at traffic on a township level, even though Lake County ranked fourth overall for vehicle miles traveled in the Chicago area.

[00:53:33] Speaker 01:
On the other factors, there's nothing about the meteorology or the geography that keeps pollution from southern Lake County from going to the monitors that are violating in Chicago.

[00:53:44] Speaker 01:
So if you cherry pick and you look at some of the data, I will agree with the court.

[00:53:48] Speaker 01:
It points in one direction.

[00:53:50] Speaker 01:
But the very reasons that EPA initially designated the whole county as being nonattainment was based on the five factor test.

[00:54:00] Speaker 01:
And looking at the five factors, it found that all of Lake County contributed to monitors of learned violation,

[00:54:09] Speaker 01:
And I'm going to quote, the analysis shows that emissions from these areas are capable of transporting to the locations of violating monitors.

[00:54:18] Speaker 01:
We cite the record at page 13 of our opening brief.

[00:54:22] Speaker 01:
So we don't dispute that most of the point sources are indeed in the northern part of the county.

[00:54:28] Speaker 01:
but there's a lot of traffic throughout the county and that's a contributing factor.

[00:54:33] Speaker 01:
And as the court found in the Mississippi Commission case in which Indiana made almost the exact same argument that was rejected here by the court, it's not a matter of whether southern Lake County is a little bit less than Lake County, northern Lake County is more, so long as southern Lake County contributes

[00:54:54] Speaker 01:
to the violating monitors, that is sufficient that it's part of non-attainment.

[00:55:00] Speaker 01:
So what we've seen here is that sort of cherry picking.

[00:55:04] Speaker 01:
If I could, I'd like to leave my minute for rebuttal.

[00:55:08] Speaker 01:
But I'll address the court.

[00:55:09] Speaker 01:
EPA's last minute change is like that struck down by the court in Catawba County.

[00:55:15] Speaker 01:
It was arbitrary and capricious, not in accordance with law.

[00:55:18] Speaker 01:
The flawed decision based on no changes in the facts or scientific data should be reversed.

[00:55:24] Speaker 01:
Thank you.

[00:55:34] Speaker 14:
As Judge Tatel pointed out, EPA's partial non-attainment boundary in Lake County captures virtually all of the county's emissions.

[00:55:42] Speaker 04:
But what about Mr. Lerner's point that, yes, emissions point sources, but not traffic

[00:55:49] Speaker 04:
meteorology or something else you mentioned.

[00:55:52] Speaker 14:
The EPA took that into consideration by putting into its final designation a map of vehicle miles traveled.

[00:55:59] Speaker 04:
What?

[00:56:00] Speaker 04:
A map?

[00:56:00] Speaker 14:
Yes, it's at JA 1286.

[00:56:02] Speaker 04:
Yeah, right.

[00:56:03] Speaker 04:
I just didn't hear you.

[00:56:04] Speaker 04:
Go ahead.

[00:56:05] Speaker 14:
And at J81286 is a map that shows 12 kilometer grids across this entire area showing the vehicle miles traveled.

[00:56:15] Speaker 14:
And it shows that the northern part of the county, which is what EPA designated as partial non-attainment,

[00:56:21] Speaker 14:
contains most of the vehicle miles traveled in the county.

[00:56:25] Speaker 14:
That also tracks with EPA's explanation that in addition to the point source emissions, the majority of the county's population is concentrated in the northern portion.

[00:56:37] Speaker 14:
It was reasonable for EPA to think of the 88% population in the non-attainment area as a proxy for the non-point source emissions in the area.

[00:56:48] Speaker 14:
In short, there's very little for petitioners to quibble with here because the non-attainment area is capturing the emissions that would need to be controlled.

[00:56:57] Speaker 14:
And they exaggerate when they say that only a small portion of Lake County was included in the non-attainment area.

[00:57:05] Speaker 15:
As a practical matter, if an area that doesn't have a major point source is designated

[00:57:11] Speaker 15:
non-attainment.

[00:57:13] Speaker 15:
What implications?

[00:57:14] Speaker 15:
What implications for traffic?

[00:57:16] Speaker 15:
I understand there would be implications for new development.

[00:57:22] Speaker 14:
The consequences of a non-attainment designation depends on the classification of the area.

[00:57:30] Speaker 14:
And in every designation we're talking about here, the classification is marginal, which is Truffaut Lake County and all of the others.

[00:57:38] Speaker 14:
It's hard to say what exactly the consequences would be for a non-attainment designation for the southern part of the state.

[00:57:45] Speaker 14:
At least petitioners haven't made any kind of argument about that.

[00:57:50] Speaker 14:
As Judge Pillard pointed out correctly, this is not a situation where EPA is changing from a previous final designation to another final designation.

[00:58:01] Speaker 14:
This is a process in which EPA takes input from states at a public comment period and is thinking about the proper designation along the way.

[00:58:11] Speaker 14:
An EPA does not have to justify the reversal itself.

[00:58:16] Speaker 14:
All it has to do is to justify the final designation in light of the facts in the record.

[00:58:21] Speaker 15:
But Lake was, in the last designation, finally designated the entire county as non-attainment, right?

[00:58:27] Speaker 14:
That's correct, Your Honor.

[00:58:28] Speaker 14:
And that was under a different factual record and a different ozone standard.

[00:58:34] Speaker 15:
And so it's not... It's gotten less developed in the South, or it's gotten...

[00:58:40] Speaker 15:
And I know the standard's more demanding now.

[00:58:43] Speaker 14:
Right, and I'm not aware of what information in the record there is about development in the southern part of the state.

[00:58:49] Speaker 14:
But what EPA has to do is it has to justify the final designation on the record, and it's justifiable to draw a line that captures virtually all of the county's emissions.

[00:59:02] Speaker 14:
If the court has no further questions, I can rest.

[00:59:05] Speaker 04:
Okay, thank you.

[00:59:14] Speaker 01:
Your Honor, I'll respond briefly.

[00:59:16] Speaker 01:
As counsel said, there's more transportation in the northern half, but there's plenty of transportation in the southern half.

[00:59:24] Speaker 01:
Indeed, there's a proposed major new tollway, the Ileana tollway, being proposed through the southern half.

[00:59:29] Speaker 04:
Well, what about the map he pointed to?

[00:59:32] Speaker 01:
There's a map that's been put in by EPA, and not surprisingly, it shows the current highways that go on northern part of Lake County have more traffic.

[00:59:42] Speaker 01:
There's a major interstate, I-69, that runs from north to the southern part of the county.

[00:59:50] Speaker 01:
There's a proposed new massive highway, the Ileana Tollway, that would go through the southern area that's been excluded.

[00:59:56] Speaker 01:
The population is growing in the southern part.

[01:00:00] Speaker 01:
So when you look at this all, we can't quibble with council.

[01:00:04] Speaker 04:
What's the basis we would have for this is all, this is a very deferential standard.

[01:00:10] Speaker 04:
I understand your argument, but

[01:00:12] Speaker 04:
How would we explain finding that EPA's analysis here is inadequate?

[01:00:17] Speaker 04:
What would we say?

[01:00:19] Speaker 01:
What you would say is that EPA made a last-minute change without any substantial change in either the facts or the scientific data.

[01:00:28] Speaker 04:
What EPA did here was... Well, but suppose we found persuasive its arguments that it's in the north where there's most of the point sources and traffic and emissions.

[01:00:38] Speaker 01:
Isn't that sufficient?

[01:00:38] Speaker 01:
What they found was, first,

[01:00:41] Speaker 01:
Most of some of the factors was in the north rather than the south, but not all of the factors.

[01:00:46] Speaker 01:
All the factors cut the other way.

[01:00:48] Speaker 01:
And secondly, with regard to the standard is not whether the south is less and the north is more.

[01:00:57] Speaker 01:
If there is a meaningful contribution from the southern part, that means it's in non-attainment so long as it's contributing, and that's the fact in this record.

[01:01:07] Speaker 04:
Thank you.

[01:01:08] Speaker 01:
Thank you, Your Honor.

[01:01:10] Speaker 04:
Let's see, to Dorr and Sheboygan, right?

[01:01:23] Speaker 02:
May I please support Ann Weeks for Clean Wisconsin?

[01:01:27] Speaker 02:
I'm going to discuss the designations of Sheboygan and Dorr counties in Wisconsin and I'd like to reserve a minute.

[01:01:35] Speaker 02:
EPA's final non-attainment designation boundaries disregard contribution from nearby sources of ozone precursors.

[01:01:43] Speaker 02:
EPA adopts instead a Wisconsin approach for Sheboygan that runs counter to evidence before the agency.

[01:01:52] Speaker 02:
It fails to include nearby contributing areas, including leaving out the largest volatile point source in the county, as well as portions of the I-43 corridor area, Interstate 43, which the record shows is a major source of precursor emissions.

[01:02:11] Speaker 02:
And EPA does this without any explanation.

[01:02:14] Speaker 02:
Other than that, EPA relies on Wisconsin's approach, even though all elements of it are discredited by EPA's own technical staff in the response to comments document.

[01:02:24] Speaker 02:
And even as EPA says, it can't validate portions of that model entirely.

[01:02:30] Speaker 02:
EPA fails to perform its duty to evaluate evidence it relies on.

[01:02:34] Speaker 02:
And at the very least, it relies on a model it knew was not up to the task.

[01:02:39] Speaker 02:
EPA bases the final

[01:02:42] Speaker 02:
non-attainment area along the lake only on the distance ozone travels in from the lake, not on the distance precursors travel out from the land over the lake along the lakeshore.

[01:02:57] Speaker 02:
In the record, even Wisconsin at Figure 3.5, JA 428 and a discussion on 429 shows that trajectories flow from the west in the morning out over the lake

[01:03:11] Speaker 02:
form ozone over the lake, because these are precursor-carrying trajectories, and then in the evening, the ozone flows back in.

[01:03:19] Speaker 02:
EPA draws its arbitrary boundary, its 2.3-mile boundary, only on the distance that the ozone travels in, not the distance or the trajectories that the precursor emissions travel out, including from that large point source, which is directly west at the Kohler-Andre Monitor in Sheboygan.

[01:03:40] Speaker 02:
EPA's final boundary adopts Wisconsin's assumption that ozone behaves in a linear fashion, even though EPA's own record says over and over again that ozone is complicated, it's complex, it's non-linear.

[01:03:51] Speaker 02:
Even Wisconsin ignores its own graphic on Figure 4 in its brief, and we reproduce it in our reply, showing that

[01:04:02] Speaker 02:
There are near non-attainment conditions in areas well west of the 2.3 mile boundary.

[01:04:08] Speaker 02:
The net result in Sheboygan is an unlawful and arbitrarily thin non-attainment area.

[01:04:13] Speaker 02:
In Door County,

[01:04:15] Speaker 02:
the final non-attainment area also ignores contribution.

[01:04:20] Speaker 02:
It absurdly is limited to the boundaries of a state park, dropping out even the evidence of vehicles traveling to and from the state park and vehicles in the southern part of the peninsula, which EPA's proposal was to designate non-attainment.

[01:04:36] Speaker 02:
Ms.

[01:04:36] Speaker 15:
Weeks, if we were to find the Sheboygan boundary to be adequately supported,

[01:04:44] Speaker 15:
Would that affect the other counties in which the lake effect phenomenon is being relied on, the ones that are being sent on voluntary remand?

[01:04:54] Speaker 02:
Well, EPA claims so.

[01:04:56] Speaker 02:
It talks about how because there's a non-violating monitor further inland than this one and it draws this linear line,

[01:05:06] Speaker 02:
between the violating monitor and the non-violating monitor, this is the Wisconsin analysis, that and because the lake shore is the same up and down the coast that it can adopt the same methodology for other counties.

[01:05:21] Speaker 02:
That model doesn't reflect reality.

[01:05:23] Speaker 02:
It doesn't reflect the precursor emissions.

[01:05:26] Speaker 02:
It doesn't reflect the contribution.

[01:05:28] Speaker 02:
And that's contrary to the statutory requirement that contributing areas have to be included in non-attainment.

[01:05:34] Speaker 02:
And I can see that my time is up.

[01:05:37] Speaker 04:
Thank you.

[01:05:44] Speaker 13:
I will take three minutes to address Sheboygan, and Mr. Hoshijima will take the remaining time to address Dorr.

[01:05:50] Speaker 13:
I'd like to start by just explaining exactly what we're disputing over in Sheboygan and then address petitioners' arguments about contribution, devaluation data, and the linearity point.

[01:06:00] Speaker 13:
The Sheboygan dispute comes down to 0.9 miles, because on page 60 of the opening grief, petitioners concede that there is a, quote, thorough analysis to support EPA's initial designations in Wisconsin.

[01:06:12] Speaker 13:
For Sheboygan, the only difference between the initial and the final designations is the width of the non-attainment area.

[01:06:20] Speaker 13:
In the initial, it was 3.2 miles.

[01:06:22] Speaker 13:
In the final, it was 2.3.

[01:06:24] Speaker 13:
And that's the 0.9 miles that we're fighting over here.

[01:06:27] Speaker 13:
Petitioners focus on Sheboygan's own emissions.

[01:06:31] Speaker 13:
But the zero-out comparison shows that Sheboygan's own emissions have negligible impact on the violating monitor.

[01:06:37] Speaker 13:
Plus, the record shows that most of Sheboygan's sources, including all its major sources and the heaviest traffic, are north of the violating monitor, CJA 1327 and 1330.

[01:06:49] Speaker 13:
Meanwhile, the model shows that wind is coming to the monitor from the south.

[01:06:55] Speaker 13:
This is at JA 1331.

[01:06:56] Speaker 15:
So there's no... I understand that part of the change, and it's 0.9 miles, but EPA actually seems to put a lot more stock in this than just Sheboygan, because it then relies on this... Sheboygan is sort of the poster child for the lake effect.

[01:07:15] Speaker 15:
theory and the thing that I'd really like to hear about is that the final designation talks about the lake effect theory and EPA is candid about saying that aspects of these claims are difficult to fully evaluate because EPA does not have the details necessary to fully review the emissions reduction modeling analysis that these claims are based on and

[01:07:42] Speaker 15:
Given that, I just wonder what EPA's position is on its ability to embrace that.

[01:07:49] Speaker 15:
And I know that you were hesitant to embrace the CR club study when you were looking at, was it Ottawa?

[01:07:54] Speaker 13:
So, I think you're reading that material from JA 1333 when EPA is looking at the different

[01:08:00] Speaker 13:
analysis that Wisconsin submitted.

[01:08:02] Speaker 13:
So let me be clear, Wisconsin submitted multiple analyses, and EPA relied only on some of them.

[01:08:08] Speaker 13:
And when EPA is talking about it couldn't evaluate the analyses, it was talking about the source apportionment modeling and the so-called 10% reduction method, and it dropped footnotes at JA 1333 to explain its concerns with those two analyses, and then it didn't rely on them in the conclusion a page later.

[01:08:24] Speaker 13:
So EPA was not saying it couldn't evaluate other aspects.

[01:08:28] Speaker 15:
So when you talk about the zero-out Sheboygan 1, where is the data that EPA used to evaluate and verify that that was

[01:08:38] Speaker 15:
something that it could rely on and that it understands, or the statement that it did that.

[01:08:43] Speaker 13:
Well, JA-450-4256 is Wisconsin's discussion, the zero-out comparison, and then as I just explained, the record elsewhere with the location of the point sources in Sheboygan and traffic, as well as the trajectories

[01:08:56] Speaker 13:
supports the zero-out finding.

[01:08:59] Speaker 15:
But the zero-out finding itself is not something that EPA looked behind.

[01:09:04] Speaker 13:
It accepted Wisconsin's... EPA looked at it because Wisconsin provided a detailed discussion of how it did that in its recommendation, and EPA thought it was fine to use, plus there's separate record evidence supporting that conclusion.

[01:09:23] Speaker 13:
I mean, petitioners talk about all these emissions in Sheboygan, but really the evidence shows that there's no connection between those emissions and the violating monitor.

[01:09:34] Speaker 13:
I also want to be clear that in the initial designation, that major source that petitioner is talking about is actually outside the initial non-attainment area, and you can see this at JA 632.

[01:09:46] Speaker 13:
On the final point on linearity, that argument has been weighed because it wasn't made in the opening brief, plus the 2.3 miles is calculated not from a linear equation based on a linear relationship, but from a power-fit equation, and this is at JA 462.

[01:10:02] Speaker 13:
JA 462.

[01:10:03] Speaker 13:
Power-fitting.

[01:10:05] Speaker 13:
It shows a curve instead of a line.

[01:10:08] Speaker 13:
So that was not calculated from a linear relationship.

[01:10:13] Speaker 15:
but it is linear in the sense of a constant distance from the shoreline, as was the previous.

[01:10:19] Speaker 13:
It's not a constant distance, it shows a curve.

[01:10:21] Speaker 15:
Right, but I'm saying it's a constant distance, so the shoreline curves?

[01:10:26] Speaker 15:
and so does the line.

[01:10:28] Speaker 15:
Isn't that right?

[01:10:28] Speaker 15:
I mean, when you say 3.2 miles, it's 3.2 miles all the way along as it was.

[01:10:33] Speaker 15:
It's roughly 3.2 miles based on the roads.

[01:10:36] Speaker 15:
2.3 and 3.2.

[01:10:37] Speaker 15:
Right, both of them are sort of roughly, it's not a straight line going through.

[01:10:42] Speaker 15:
They're equally linear in that sense because each of them is expressed as a constant distance from the shoreline.

[01:10:48] Speaker 15:
Roughly a constant distance, yes.

[01:10:51] Speaker 04:
Thank you.

[01:10:51] Speaker 04:
Thank you.

[01:11:00] Speaker 14:
Let me quickly address Door County, where petitioners agree that only part of Door County should have been designated nonattainment.

[01:11:08] Speaker 14:
So the scope of this agreement here is pretty narrow.

[01:11:12] Speaker 14:
EPA ultimately limited the final partial nonattainment area to the immediate surroundings of the violating monitor.

[01:11:18] Speaker 14:
Petitioners just want slightly more of the county designated.

[01:11:23] Speaker 14:
Now it's important to note that EPA's rationale for Door County is fairly different from the rationale that it used in designating the other Wisconsin counties.

[01:11:33] Speaker 14:
EPA in Door County relied largely on the unique geography of the Door County monitor, which is that it's on the tip of a peninsula, particularly exposed to the lake breeze effect.

[01:11:47] Speaker 14:
and that Door County itself is particularly rural and has low emissions and low population.

[01:11:55] Speaker 14:
So there was no reason for EPA to believe that the rest of Door County contributed to the violation at the Peninsula Tip Monitor.

[01:12:04] Speaker 14:
So petitioners are ultimately disagreeing with EPA's line drawing.

[01:12:08] Speaker 14:
They think that some sources within the northern portion of the county should be included within the non-attainment area.

[01:12:15] Speaker 14:
But because EPA overall concluded that the county's emissions were low as a whole and not a major factor here, it was reasonable for EPA to not take into account those sources.

[01:12:28] Speaker 15:
The question I have is, is the claim that the lower part of the peninsula is producing, or I thought it was more that, given the violating monitor on the peninsula, that it's hard to say the rest of the peninsula is not equally experiencing exceedance.

[01:12:48] Speaker 14:
I can't speak to exactly what petitioner's claim is, but as to EPA's conclusion, it was that there was no information in the record that suggested that any other part of the county should be considered nonattainment for either of those reasons.

[01:13:04] Speaker 15:
And the peninsula was previously designated based on that one violating monitor in past designations.

[01:13:15] Speaker 14:
I don't recall exactly what the past designations were, Your Honor.

[01:13:18] Speaker 15:
And the question, I suppose, is could EPA, if it were so inclined, do this kind of, just draw a little ring around a point source rather than consider the broader area.

[01:13:38] Speaker 15:
all over the country.

[01:13:40] Speaker 15:
One assumes that emissions are experienced not just by, I'm sorry, not at points, but by a violating monitor.

[01:13:49] Speaker 15:
That a violating monitor is indicative of something broader than just the very immediate

[01:13:54] Speaker 15:
What am I missing?

[01:13:56] Speaker 14:
And for EPA to do so, that would have to be supported by the multi-factor analysis, which here showed a monitor that is particularly exposed to the lake breeze.

[01:14:06] Speaker 14:
It's on a higher portion of land.

[01:14:09] Speaker 14:
It's surrounded on three sides by water.

[01:14:12] Speaker 14:
And that means that it's being affected by emissions from the lake in a way that there's no reason to believe other parts of Door County are.

[01:14:20] Speaker 15:
I'm sorry that I'm being a little obtuse about this, but where we had the lake shore and the primary evidence that a violation that the agency was relying on was that the lake breeze effect would in fact come inland across the whole coastline.

[01:14:41] Speaker 15:
And so the question is, well, why wouldn't you at least have a 2.3 miles lake breeze effect

[01:14:47] Speaker 15:
And as to that... Along Door County, the lake breeze is an effect that actually brings emissions and in EPA's view causes violations where there aren't violating monitors, just as is the case with Door County.

[01:15:04] Speaker 14:
And as to that question, I can say for certain that's not what the petitioners are arguing here.

[01:15:09] Speaker 14:
Petitioners haven't made that argument that it seems the extent of the violating air should be 2.3 miles within Door County.

[01:15:17] Speaker 15:
No, but I'm just looking at the logic of the reliance on the lake effect.

[01:15:23] Speaker 15:
Where polluted air is washing in and out over land, the fact that this is a spit of land out on the lake wouldn't seem to ameliorate that.

[01:15:32] Speaker 15:
And so I'm missing something.

[01:15:34] Speaker 14:
EPA's conclusion was just that the monitor is particularly susceptible because of its placement, perhaps in a way that other parts of, there wasn't evidence to believe that other parts of Door County were similarly susceptible.

[01:15:49] Speaker 15:
Okay.

[01:15:53] Speaker 15:
Thank you.

[01:16:00] Speaker 02:
Very quickly, Your Honors.

[01:16:02] Speaker 02:
I'd like to respond to some of the questions

[01:16:04] Speaker 02:
I'm going to start with DOOR.

[01:16:06] Speaker 02:
We want the portion of the county containing ozone precursors to be designated nonattainment, which is what EPA had proposed in its original documents.

[01:16:17] Speaker 02:
And in its final document, it decided that it would ignore high-level trajectories showing precursor transport from the southwest in the areas that contain the point sources and a lot of the traffic in the southern part of the county.

[01:16:34] Speaker 02:
For Sheboygan, the width of the non-attainment area, we didn't challenge that because of the extreme deference this agency gets.

[01:16:42] Speaker 02:
The eliminated large VOC source is right near the boundary.

[01:16:48] Speaker 02:
It would have been eliminated no matter what, but nevertheless it's eliminated from non-attainment.

[01:16:56] Speaker 02:
EPA definitely drops out portions of the I-43 corridor, which it knows are sources of vehicle miles traveled, and it also ignores that its own record says that exceedance days happen on the – on exceedance days, the transport is from the south and southwest over land.

[01:17:17] Speaker 02:
The final document at JA – I mean, the response to comments document, I'm sorry, at JA 1212 to 1215 is the staff's critique of the Wisconsin submission.

[01:17:30] Speaker 02:
The final document does not say what

[01:17:33] Speaker 02:
the final decision document doesn't say what of the Wisconsin analysis they relied on.

[01:17:38] Speaker 02:
It just says, considering what these things are that we listed and considering the Wisconsin analysis, we have changed our minds.

[01:17:46] Speaker 02:
It doesn't really analyze or tell us what portion of the model that they relied on, but in any event, all of the portions of the model can be shown to be lacking.

[01:18:00] Speaker 02:
With that, I would like to just ask for both the door and the Sheboygan designations to be – or the attainment boundaries to be vacated.

[01:18:12] Speaker 04:
Thank you.

[01:18:12] Speaker 04:
So I think we're moving on now to the question of remedy.

[01:18:16] Speaker 04:
Yes, let me –

[01:18:24] Speaker 02:
So, Anne Weeks, may I please support?

[01:18:27] Speaker 02:
I don't know if we want to start the clock again.

[01:18:29] Speaker 02:
I am going to split my five minutes with my colleague, Mr. Lerner.

[01:18:35] Speaker 02:
I'm going to start with three, just to sort of lay out where we see this going, and he will finish up.

[01:18:42] Speaker 02:
We seek vacater, not remand alone.

[01:18:45] Speaker 02:
For all of the attainment area boundaries, we are challenging.

[01:18:49] Speaker 02:
As you've heard from all of my colleagues, EPA is engaged in a results-oriented designation process, ignoring contribution.

[01:18:57] Speaker 02:
That's a statutory problem for them.

[01:19:01] Speaker 15:
And that should be enough under your cases to justify vacater.

[01:19:04] Speaker 15:
What's the practical implication of that?

[01:19:06] Speaker 15:
Is the assumption that it goes back to its previous designation or it becomes undesignated?

[01:19:12] Speaker 15:
And if it becomes undesignated, it's your only concern, a concern about deadline.

[01:19:19] Speaker 02:
Well, that's a major concern in this case.

[01:19:21] Speaker 02:
And our concern about deadline is that it would become two answers.

[01:19:26] Speaker 02:
The vacator would trigger again the deadline, which has already passed.

[01:19:32] Speaker 02:
We've already had to go to district court.

[01:19:33] Speaker 04:
Well, would it trigger the deadline?

[01:19:35] Speaker 04:
Would it trigger the deadline?

[01:19:36] Speaker 02:
I believe so, Your Honor.

[01:19:37] Speaker 02:
It's already been triggered.

[01:19:38] Speaker 02:
They're well overdue in these designations.

[01:19:41] Speaker 04:
But it wouldn't trigger a new deadline, right?

[01:19:44] Speaker 02:
Well, it would trigger the situation at hand before the designations were issued, which is that they were having to respond to a nondiscretionary duty to issue designations by a deadline certain.

[01:19:55] Speaker 05:
Couldn't that probably be solved if we imposed a deadline or remanded the deadline?

[01:19:59] Speaker 02:
I think it's within your – it's within your power to do that.

[01:20:03] Speaker 02:
I'm not sure that this works.

[01:20:04] Speaker 04:
Do you know of a case where we've ever done that?

[01:20:08] Speaker 02:
I know of in-ray core communications where you've said that you don't want to have to do that, and it ends up in a mandamus situation where EPA foot drags when you simply remand.

[01:20:18] Speaker 02:
I think the district court in this case has exclusive jurisdiction over deadlines and would probably be the place we would have to go if you didn't tell the agency what to do.

[01:20:28] Speaker 02:
I am not confident that you would want to tell the agency what to do on deadline in this case.

[01:20:33] Speaker 04:
I mean, in some cases, we've – at the end of the opinion, we've reminded everybody about the availability of future mandamus relief.

[01:20:40] Speaker 04:
That's correct.

[01:20:43] Speaker 04:
But we have to apply the allied signal standard.

[01:20:47] Speaker 04:
Yes.

[01:20:47] Speaker 04:
Right?

[01:20:47] Speaker 04:
So how do you… I can see my time at hand.

[01:20:54] Speaker 04:
Seriousness of the error.

[01:20:56] Speaker 04:
That's the first one.

[01:20:58] Speaker 02:
Well, I think my colleagues have shown serious deficiencies here.

[01:21:02] Speaker 02:
At the very least, failing to include nearby contributing areas is a serious misinterpretation of how the statute reads.

[01:21:12] Speaker 04:
I'm sorry to interrupt you, but I'm running out of time.

[01:21:15] Speaker 04:
What's the closest, is there a case, can you cite a case where we have found a designation to be arbitrary and capricious and vacated it?

[01:21:25] Speaker 04:
A designation, Your Honor?

[01:21:26] Speaker 04:
No.

[01:21:27] Speaker 04:
not an area designation, yeah.

[01:21:29] Speaker 02:
Not an area designation, but certainly others in other situations where... But not a designation.

[01:21:33] Speaker 04:
In other words, there's no case where you know of where an attainment designation, which we found arbitrary and capricious, we vacated, right?

[01:21:43] Speaker 02:
No, Your Honor.

[01:21:44] Speaker 04:
I think here we're talking about a statutory, you know, at least disregard of statutory... And just to continue, I think the question, Judge Patil had asked, so what's... I'm not sure I get the difference between... These are areas that are in attainment.

[01:21:57] Speaker 04:
Correct?

[01:21:58] Speaker 04:
Yes.

[01:21:58] Speaker 04:
So if we vacate, they still know what's the consequence of that for environmental regulation right after the... Well, the 2008 designations are still in place for those areas.

[01:22:11] Speaker 04:
And in some cases, EPA has replaced a non-attainment designation on a 2008 with a... So then to answer her question, if we vacate the non-attainment designations, then the... I'm sorry, the attainment designations and the non-attainment designation

[01:22:27] Speaker 04:
goes back into effect?

[01:22:30] Speaker 04:
Is that what you're saying?

[01:22:31] Speaker 02:
Under the 2008 standard, or if it's an attainment area under the 2008 standard, then that would go back into effect.

[01:22:39] Speaker 02:
And our concern is making sure that EPA acts in a fashion that reflects the important public health considerations that are at play in this case.

[01:22:50] Speaker 02:
This is ozone,

[01:22:51] Speaker 02:
causes respiratory illness, even premature death.

[01:22:55] Speaker 04:
I suppose we say all that in our opinion and say, you know, we just quote what you just said, that they need to move quickly to reflect the serious health issues in effect and leave it at that.

[01:23:05] Speaker 04:
Would that be okay?

[01:23:07] Speaker 02:
If you simply remanded, Your Honor, we don't have the opportunity to go back to district court and force them to meet the deadlines that have already passed under this.

[01:23:15] Speaker 02:
We've had to go twice already in order to get the designations issued.

[01:23:21] Speaker 02:
EPA did this in two batches.

[01:23:22] Speaker 02:
One, just the attainment areas back in the fall.

[01:23:25] Speaker 02:
of 2007, I guess, and then we had to go back again to get the non-attainment areas.

[01:23:32] Speaker 02:
There's a serious deficiency here in that APA is trying to make the smallest possible non-attainment areas into foot drag, and that vehicular is definitely warranted here.

[01:23:46] Speaker 15:
And this was not apparent to me from the briefing.

[01:23:50] Speaker 15:
What makes you confident that if it's vacated, instead of just being undesignated, it goes back to the 2008 status?

[01:23:59] Speaker 02:
I think the understanding is vacater springs back the status quo ante, and that is the status quo ante in these areas.

[01:24:09] Speaker 04:
OK, thank you.

[01:24:11] Speaker 02:
You're welcome.

[01:24:11] Speaker 02:
Thank you.

[01:24:19] Speaker 01:
Your honors, Howard Warner for Petitioners, and I'll just make two short points.

[01:24:23] Speaker 01:
First, facts matter.

[01:24:25] Speaker 01:
And secondly, justice delayed is justice denied.

[01:24:29] Speaker 01:
As Judge Griffith recognized in Inri Kaur communications,

[01:24:33] Speaker 01:
I-31F3 849, future panels should consider the alternatives to open-ended remand without vacater.

[01:24:42] Speaker 01:
And in that opinion, in response to the Court's question, there were a number of cases in which are cited where the Court prescribed a certain number of days for the agencies in those cases in which to move forward.

[01:24:56] Speaker 01:
So there is some precedent here on that, as my co-counsel said, not specifically in the ozone non-attainment cases.

[01:25:04] Speaker 04:
What was the name of that case?

[01:25:05] Speaker 01:
Henry Court Communications.

[01:25:06] Speaker 04:
Wasn't that a mandamus action?

[01:25:08] Speaker 01:
It was a mandamus action.

[01:25:09] Speaker 04:
Well, that's completely different with a mandamus.

[01:25:11] Speaker 04:
Of course we have authority under mandamus actions to impose deadlines.

[01:25:15] Speaker 04:
Yes, but... This is not a mandamus action.

[01:25:17] Speaker 01:
This is not a mandamus action.

[01:25:19] Speaker 04:
So the question is, do you know of any case where we've imposed a deadline in a non-mandamus Clean Air Act case like this?

[01:25:28] Speaker 01:
Your Honor, I'm not aware of that right now.

[01:25:30] Speaker 04:
And what authority would you cite for our authority to do that?

[01:25:38] Speaker 01:
Let me go back to what Judge Griffiths said in report communications.

[01:25:42] Speaker 04:
That's a mandamus action.

[01:25:43] Speaker 01:
It's a mandamus action, but I think fairly read Judge Griffin's concurrence, and Judge Griffin knows what he meant to say, it would be me to say it, was that future panels should consider the alternatives.

[01:25:55] Speaker 01:
Future panels in mandamus actions, right?

[01:25:58] Speaker 01:
Well, I don't think that's quite the purpose was to avoid mandamus, and that's the point here.

[01:26:04] Speaker 01:
You know, what that opinion says leads me to question the wisdom of open-ended remand without vacatur because otherwise you then get to mandamus.

[01:26:15] Speaker 01:
The purpose is to avoid that situation and in this case,

[01:26:19] Speaker 01:
where we've seen the rather extraordinary letter from the U.S.

[01:26:23] Speaker 01:
EPA Administrator requesting the Illinois EPA Director to please make a request of a switch to attainment and where we've seen the delay problems as expeditiously as practicable as the standard here, we believe that wisdom compels vacatur.

[01:26:43] Speaker 04:
Thank you.

[01:26:44] Speaker 04:
Thank you, Your Honor.

[01:26:51] Speaker 13:
Vacature is a wrong remedy here, given petitioners' stated concerns for two reasons.

[01:26:56] Speaker 13:
First, for Sheboygan and Doar, there is a mismatch in what petitioners are challenging and what they seek vacature on.

[01:27:03] Speaker 13:
As I just explained earlier, petitioners have no problems with EPA's initial designation of Sheboygan and Doar.

[01:27:09] Speaker 13:
So in other words, they agree that much of the attainment area there is just fine, yet they want you to vacate the attainment areas in those two counties.

[01:27:18] Speaker 04:
If we agree with you, if we don't vacate and just remand, can you, speaking for the agency, give us any assurance about how long this will take?

[01:27:29] Speaker 13:
We don't know how long it will take because we don't know what, if any, errors this court will find and how many designations EPA will have to do on remand.

[01:27:38] Speaker 13:
What I can tell you is, in response to petitioners' concern about timing, I mean, I hear them.

[01:27:42] Speaker 13:
The problem is they are assuming that EPA will act illegally on remand by unreasonably delaying.

[01:27:51] Speaker 13:
But you can't assume that.

[01:27:52] Speaker 13:
The timing issue is not right yet.

[01:27:55] Speaker 13:
And you shouldn't use vacature

[01:27:57] Speaker 04:
Well, there has been a delay problem in these cases, correct?

[01:28:00] Speaker 04:
They've had to go to court twice to get these issued.

[01:28:02] Speaker 13:
That was over a completely different volume of designations.

[01:28:05] Speaker 13:
And just because EPA didn't have time to finish hundreds of designations, this is the Northern District of California case, that says nothing about whether EPA would drag its feet here when we just have a handful of designations.

[01:28:17] Speaker 13:
And if the issue ever ripens, petitioners have a remedy.

[01:28:21] Speaker 13:
They can sue for unreasonable delay in district court.

[01:28:23] Speaker 13:
7604A allows them to do just that.

[01:28:28] Speaker 13:
Also note, too, that the 2008 designations, the designations for the 2008 standards are in place no matter what you do here.

[01:28:35] Speaker 13:
So I just wanted to clarify that.

[01:28:40] Speaker 13:
Unless the court has any questions about the designations that we are defending, I'd like to very briefly address the designations.

[01:28:47] Speaker 15:
When you say that 2008 designations are in place no matter what you do here.

[01:28:51] Speaker 13:
They're not being challenged, so they're still in place.

[01:28:54] Speaker 15:
Well, so in Door County, for example, where in 2008 a bigger part of it was designated on attainment, and then the current designation is just in the tip, so does that mean that the

[01:29:09] Speaker 15:
part that's not in the current designation still has to meet the 2008.

[01:29:12] Speaker 15:
It's still treated as non-attainment with respect to the .75 and then it's only with respect to further bringing it down.

[01:29:24] Speaker 13:
The current designation, yes, that's where the current designation comes in.

[01:29:28] Speaker 15:
So sorry about Russian dolls in terms of the standards apply.

[01:29:31] Speaker 15:
The old standard continues.

[01:29:33] Speaker 15:
Yes, old standard continues.

[01:29:35] Speaker 15:
It's not put into attainment in that other area.

[01:29:37] Speaker 15:
It's only attainment with respect to the new standard.

[01:29:40] Speaker 15:
Correct, yes.

[01:29:41] Speaker 15:
Okay.

[01:29:43] Speaker 15:
And do we have any authority to impose a deadline in remand?

[01:29:49] Speaker 13:
No, I mean, the case on point here is Catawba, where the court did find a designation to be arbitrary, and it remanded without vacatur or without setting a deadline.

[01:30:01] Speaker 04:
But did we say in that case we didn't have the authority to set a deadline?

[01:30:04] Speaker 13:
I don't believe you said that, and I haven't found... Well, that's pretty critical, isn't it?

[01:30:08] Speaker 13:
I don't know of a case that says you have the authority to set a deadline.

[01:30:12] Speaker 13:
As they say, that assumes that EPA will be delaying on remand, and you can't assume that.

[01:30:21] Speaker 13:
I do want to make a very quick point about the designations for which we're asking for volunteer remand.

[01:30:27] Speaker 13:
The APA allows the court to set aside agency actions found to be arbitrary and capricious, which requires a ruling on the merits against us.

[01:30:36] Speaker 13:
And if you grant the remand request, then those designations should not be vacated.

[01:30:44] Speaker 04:
Thank you.

[01:30:52] Speaker 02:
Very quickly, petitioners are not asking this court to impose a deadline, just to be clear, on EPA's action.

[01:31:00] Speaker 04:
You want us to vacate.

[01:31:02] Speaker 02:
We want you to vacate.

[01:31:03] Speaker 04:
But suppose we decide to just remand.

[01:31:07] Speaker 04:
Well, unfortunately, EPA's... You don't think we have the authority to impose a deadline, right?

[01:31:14] Speaker 02:
I wouldn't say that you don't have the authority.

[01:31:16] Speaker 02:
I would say that your equitable discretion on a remedy is pretty broad.

[01:31:22] Speaker 02:
If you would like to impose a deadline, I wouldn't say no.

[01:31:26] Speaker 02:
That deadline should be as expeditiously as practicable, and it should not be... But you're sourcing that authority in our equitable power of the court, right?

[01:31:39] Speaker 05:
Is that what you just said?

[01:31:41] Speaker 02:
That is where you would find it if you chose to do so, sir.

[01:31:45] Speaker 02:
I believe that

[01:31:46] Speaker 02:
Under the statute, technically speaking, the district court has authority over these deadlines.

[01:31:54] Speaker 02:
And the deadline in 107 is expeditiously as practicable, not later than one year after the new standard is in place, et cetera, et cetera, et cetera.

[01:32:05] Speaker 05:
Unfortunately, what EPA's... The problem is we've blown through those deadlines.

[01:32:09] Speaker 05:
Those deadlines are gone.

[01:32:10] Speaker 02:
Oh, yes.

[01:32:10] Speaker 02:
Yes, you have.

[01:32:11] Speaker 02:
But that doesn't mean they wouldn't spring back into place.

[01:32:14] Speaker 02:
I mean, I think that it isn't – I don't think it suffices to say, as EPA suggests, that, oh, well, unreasonable delay is an option for them, because an unreasonable delay suit has a 180-day notice period.

[01:32:29] Speaker 02:
You have to wait for, what, 18 months under your case law before you can even bring one.

[01:32:34] Speaker 02:
I mean, this public health here, that I think your track case says, where public health is an issue, delay is really important to consider.

[01:32:41] Speaker 02:
And here we've already had quite a bit of delay in... Isn't track a mandamus case?

[01:32:52] Speaker 02:
Your Honor, I'm talking simply about the fact that public health matters to our clients and their breather.

[01:32:57] Speaker 02:
I understand that.

[01:32:58] Speaker 04:
But you understand why I'm asking the question.

[01:32:59] Speaker 02:
Yes, I do.

[01:33:00] Speaker 02:
I absolutely do.

[01:33:01] Speaker 02:
I think that remedy of remand alone is just going to invite agency foot dragging.

[01:33:12] Speaker 02:
The agency has evidenced here

[01:33:15] Speaker 02:
manifestly an interest in the smallest possible non-attainment areas and why they would want to speed up to enlarge those is just not apparent to me on this record.

[01:33:30] Speaker 02:
So delay is a concern to us.

[01:33:32] Speaker 02:
Delay is a concern to anyone breathing in these areas.

[01:33:38] Speaker 02:
I would want to ask if the court wishes further briefing on the question of your authority to issue deadlines on a remand.

[01:33:50] Speaker 02:
We'd be happy to engage in that.

[01:33:52] Speaker 04:
Well, we'll let you know whether we need that.

[01:33:55] Speaker 04:
Okay.

[01:33:56] Speaker 02:
Thank you, Your Honor.

[01:33:57] Speaker 02:
I have, unless you have further questions.

[01:33:59] Speaker 04:
No.

[01:34:01] Speaker 02:
Appreciate it.

[01:34:01] Speaker 04:
Thank you.

[01:34:04] Speaker 04:
So now we're on to the last topic.

[01:34:08] Speaker 04:
voluntary remand.

[01:34:17] Speaker 04:
Mr. Lerner, did he have any time left?

[01:34:21] Speaker 04:
Oh, then I'm sorry, Mr. Lerner.

[01:34:22] Speaker 04:
My apologies.

[01:34:29] Speaker 04:
I thought I'd get through this whole thing without making one of those mistakes.

[01:34:32] Speaker 01:
Your Honor, just one point.

[01:34:34] Speaker 01:
For all the reasons Ms.

[01:34:35] Speaker 01:
Weeks said, and for what we've briefed in our reply brief at pages 57 to 61, we believe in the circumstances of this case, vacatur is appropriate.

[01:34:45] Speaker 01:
On the other hand, we do hear the court, and if the court is moving in a different direction, we are pleased to submit supplemental authority on how the court might manage the process so that we get

[01:34:59] Speaker 01:
progress from the agency in the words of the statute as expeditiously as practicable.

[01:35:06] Speaker 01:
Justice delayed is justice denied here.

[01:35:09] Speaker 01:
Public health is at stake.

[01:35:11] Speaker 01:
If the issue that's coming up from the perspective of the court is the path of a deadline in which the agency must act, we would be pleased to brief that if the court wants supplemental authority.

[01:35:25] Speaker 01:
Thank you, Your Honor.

[01:35:28] Speaker 04:
Now we go on to the last topic.

[01:35:34] Speaker 09:
May it please the Court, Aaron Street on behalf of the El Paso interveners.

[01:35:38] Speaker 09:
We're urging the Court to reject EPA's request for a voluntary remand, reach the merits, and deny the petitions for review.

[01:35:46] Speaker 09:
In my time this morning, I'd like to touch on why EPA's request does not measure up to the standard in this Court's case law for voluntary remand, and then turn to two specific statutory provisions that cut decisively against remand in this particular context.

[01:36:02] Speaker 09:
In this Court's 2017 decision in Limnia versus the Department of Energy, the Court quoted a treatise that I think correctly encapsulates this Court's case law on voluntary remand.

[01:36:14] Speaker 09:
And the Court said that voluntary remand is appropriate when, quote, the agency recognizes deficiencies in its decision, explanation, or procedures and asks the Court to remand the case back to the agency so that it may correct the deficiency.

[01:36:31] Speaker 09:
Now, the agency doesn't need to confess error, but it does need to specifically and concretely identify some concern, either on a statutory, procedural, or factual basis, about the designation.

[01:36:44] Speaker 09:
And it has utterly failed to do that here.

[01:36:47] Speaker 09:
All it has told this court is that it may be beneficial for the court to receive additional further explanations about the El Paso and other designations.

[01:36:56] Speaker 09:
It hasn't told the court where it might provide additional explanations,

[01:37:00] Speaker 09:
why those may be needed, much less identified any substantive defect in the designation.

[01:37:06] Speaker 09:
And indeed, we think on this record and on the proper standard of review of deference to the EPA, we're at a loss to see why the EPA is not just defending this rule on its merits.

[01:37:18] Speaker 04:
Well, but the fact is it isn't, right?

[01:37:21] Speaker 04:
I mean, that's the problem you have, is that it has chosen not to defend these designations on the merits, which

[01:37:29] Speaker 04:
leads me to ask what, it's hard for me to see what the basis is for us going ahead and resolving on the merits, a standard that the agency is no longer defending.

[01:37:44] Speaker 09:
So two quick points on that, and then I'd like to argue why the statute cuts in favor of that result.

[01:37:49] Speaker 09:
But under this court's case law, certainly the agency has the prerogative to ask for a remand, but it must identify some reason based on the record of the statute that supports that.

[01:38:01] Speaker 09:
Also in this court's utility solid waste activities group case, the court did take into account the prejudice to the non-moving parties.

[01:38:09] Speaker 09:
And there, the court had before it a party that wished to continue litigating and to vindicate its position.

[01:38:15] Speaker 09:
And the court said, we're not going to accept the voluntary remand when there's a party before the court that's vindicating its position.

[01:38:22] Speaker 09:
Because we would have the same undue prejudice here.

[01:38:25] Speaker 09:
The state would have to continue litigating a rule that it believes is justified.

[01:38:28] Speaker 04:
Well, why isn't it enough?

[01:38:29] Speaker 04:
It said, it says, this would give it the opportunity to supplement the record.

[01:38:38] Speaker 04:
or modify the designations in ways that could move the challenge, or at least narrow the issues.

[01:38:44] Speaker 04:
Why aren't all those sufficient for a court to grant voluntary remand?

[01:38:50] Speaker 04:
They are all conserved judicial resources.

[01:38:54] Speaker 04:
Basically, what this is saying to us is, look, court, we can either move this or we can give you a better record or narrow the issues.

[01:39:04] Speaker 04:
Why isn't that enough for us to remand it?

[01:39:07] Speaker 09:
This court has never accepted that.

[01:39:09] Speaker 04:
I was just asking you, I wasn't asking for a case.

[01:39:12] Speaker 04:
I was asking you why isn't that when we're looking at considering the question of judicial resources and wise judging.

[01:39:20] Speaker 04:
Why wouldn't we accept an agency's invitation to provide us with a better record or to narrow the issues or maybe even to moot the case?

[01:39:29] Speaker 09:
Because it only conserves judicial resources if there's some reason given to this court to believe that that will happen.

[01:39:35] Speaker 04:
Well, they've only asked for it in several cases, not all of them.

[01:39:39] Speaker 04:
Correct.

[01:39:41] Speaker 09:
And I would say also the prejudice.

[01:39:43] Speaker 04:
I would agree with you if they had asked for the whole thing.

[01:39:46] Speaker 04:
With this, you would say, well, that's a little suspicious.

[01:39:49] Speaker 04:
But they haven't done that.

[01:39:50] Speaker 04:
They've chosen to defend quite a few of these on the merits, but not these.

[01:39:53] Speaker 09:
And if the agency were here giving some defect in the rule or some concern... Well, you're just repeating the argument at the beginning.

[01:40:02] Speaker 04:
You're not responding to my question about preserving our own resources and ensuring the quality of our decision-making by having the most

[01:40:12] Speaker 04:
well-developed record possible.

[01:40:14] Speaker 09:
So I think I'm not going to convince you with my previous point, but I think... Right, that's why I asked you my question.

[01:40:19] Speaker 09:
Correct, and I understand, Your Honor.

[01:40:21] Speaker 09:
And so I think the prejudice of the parties still comes into account, but I think there are two statutes... That I understand, right.

[01:40:26] Speaker 04:
That's one clear response to what I said, which is we have to consider the prejudice to the parties.

[01:40:32] Speaker 04:
And what is that prejudice?

[01:40:34] Speaker 09:
Well, the prejudice to the state is that it has to continue defending its rule, its designation, before the agency and potentially again on this court.

[01:40:43] Speaker 09:
when it's already justified on the record and under the statute.

[01:40:46] Speaker 04:
But there's no substantive prejudice.

[01:40:50] Speaker 04:
It's just the fact that you have to spend time in court or in administrative agencies, right?

[01:40:57] Speaker 09:
That is the prejudice to the state.

[01:40:59] Speaker 04:
That's the prejudice, I see.

[01:41:00] Speaker 09:
The prejudice to the industry interveners is that they will now labor under a cloud of uncertainty while this

[01:41:06] Speaker 09:
remand goes on for who knows how long, whenever it makes an investment decision or a planning decision about a beneficial expansion, it won't know whether it will be subject to the additional permitting and controls requirements that would come under a non-attainment designation.

[01:41:21] Speaker 04:
This is a law, a cleaner act.

[01:41:24] Speaker 04:
It's constantly these standards.

[01:41:26] Speaker 04:
The standards are constantly being changed.

[01:41:28] Speaker 04:
designations being reconsidered.

[01:41:30] Speaker 04:
This is a process that goes on indefinitely.

[01:41:32] Speaker 04:
I mean, states have to participate in the process, and this is just an uncertainty that seems to me to be built into the statute and the way it's structured.

[01:41:42] Speaker 09:
I don't disagree with that as a general matter, but it is the prejudice that's at issue in this case that's similar to what was at issue in Utility Solid Waste Group.

[01:41:50] Speaker 15:
And if I could take... Which you are in case are you... I'm sure you cited it, but... Utility Solid Waste... I have so many cases that are called Utility Solid.

[01:41:58] Speaker 09:
It's the 2018 version.

[01:42:00] Speaker 09:
That's 921 Fed 3rd.

[01:42:02] Speaker 09:
And if I could just take one minute where I think the statute and the Clean Air Act is particularly relevant to disallowing the remand here.

[01:42:10] Speaker 09:
Two very quick points there.

[01:42:13] Speaker 09:
We've heard from our friends that the statute requires EPA to promulgate the state's designations as expeditiously as practicable.

[01:42:22] Speaker 09:
If EPA can't tell us what's wrong with these designations, they're running directly into that framework if they're asking for a remand.

[01:42:30] Speaker 09:
Now sure, if there's something wrong with it, they can go back and fix it.

[01:42:33] Speaker 09:
But otherwise, they're supposed to promulgate these as expeditiously as practicable under the statute.

[01:42:38] Speaker 09:
The second quick point there is that

[01:42:40] Speaker 09:
The Clean Air Act provides a specific mechanism for EPA to revise existing designations, and that is under 7407 D3A.

[01:42:51] Speaker 09:
It says that if the administrator has – the administrator may at any time notify the governor that available information indicates that the designation should be revised.

[01:43:03] Speaker 09:
And then it goes through the –

[01:43:07] Speaker 04:
And then it goes through the... Why don't you finish up quickly?

[01:43:10] Speaker 04:
Yes, Your Honor.

[01:43:10] Speaker 09:
Finish your sentence.

[01:43:11] Speaker 09:
Thank you.

[01:43:12] Speaker 09:
So that specific prescription, how the EPA is to revise its existing designations, cuts decisively against short-circuiting an ongoing petition for... And what are the built-in aspects of that process that you're pointing to that would not be available

[01:43:31] Speaker 15:
under the Voluntary Room and the EPA.

[01:43:34] Speaker 09:
Thank you.

[01:43:34] Speaker 09:
I'm glad you asked, Your Honor.

[01:43:35] Speaker 09:
The statute expressly says that the administrator has to provide public notice to the governor with the reasons for why it's considering the redesignation.

[01:43:44] Speaker 09:
We have no idea what those reasons are right now.

[01:43:47] Speaker 09:
So that lets the EPA do its statutory homework and do its due diligence and provide notice to the parties of what it wants to do rather than short-circuiting the process before this Court.

[01:43:56] Speaker 06:
Thank you.

[01:44:10] Speaker 12:
Good morning, Your Honors.

[01:44:11] Speaker 12:
May it please the Court, Gabe Johnson-Karp for the State of Wisconsin.

[01:44:14] Speaker 12:
Wisconsin opposes EPA's request for voluntary remand here, but because we believe that EPA got it right in its final technical support document.

[01:44:25] Speaker 12:
Here, the agency has failed to explain anything, as Mr. Street just told the court.

[01:44:32] Speaker 12:
There's no explanation of why it needs a remand, what it would do on remand.

[01:44:37] Speaker 04:
And so the agency- Well, it hasn't told us what it'll do, but it's told us why.

[01:44:41] Speaker 04:
It says it can improve the record, might be able to mood a case.

[01:44:47] Speaker 04:
It's given reasons.

[01:44:49] Speaker 04:
It hasn't just said, please remand.

[01:44:52] Speaker 04:
And it's picked the subset of cases to do it.

[01:44:58] Speaker 12:
That reason, I think, it doesn't give really any indication of what it sees that needs fixing here.

[01:45:05] Speaker 12:
And that really goes to the core of my argument, which is Wisconsin doesn't believe that there is anything that needs fixing in the record.

[01:45:13] Speaker 04:
But the agency that issued the designations thinks there might be.

[01:45:20] Speaker 12:
But they didn't when they made those designations.

[01:45:22] Speaker 12:
But they do now.

[01:45:23] Speaker 12:
But it's that earlier.

[01:45:25] Speaker 04:
Maybe they read your briefs and thought, gee, maybe we ought to take another look at this.

[01:45:30] Speaker 12:
Well, I don't think they'd read our briefs yet.

[01:45:32] Speaker 04:
They should have.

[01:45:32] Speaker 04:
Not your briefs.

[01:45:33] Speaker 04:
Petitioner's briefs.

[01:45:34] Speaker 04:
Not your briefs.

[01:45:34] Speaker 04:
Petitioner's briefs.

[01:45:36] Speaker 12:
Well, respectfully, Your Honor, that decision isn't entitled to deference.

[01:45:42] Speaker 04:
I wasn't suggesting any deference at all.

[01:45:45] Speaker 12:
Sure.

[01:45:46] Speaker 04:
I'm just asking you the practical problem of us ruling on a designation that the agency isn't defending, in the absence of any prejudice.

[01:46:00] Speaker 12:
Your Honor, I think the point of prejudice is a large unknown here, that because they haven't told us what the process would entail on remand, nobody knows what it would entail, so it could amount to

[01:46:17] Speaker 12:
months, years of back and forth between the state and the agencies and commenting.

[01:46:23] Speaker 04:
Well, there are procedures for dealing with that.

[01:46:25] Speaker 04:
The Clean Air Act has a provision for that.

[01:46:27] Speaker 04:
There's mandamus.

[01:46:30] Speaker 04:
We get those cases all the time here.

[01:46:32] Speaker 12:
But as we've seen over the past 20 minutes, none of that is certain.

[01:46:36] Speaker 12:
Nothing is certain.

[01:46:41] Speaker 12:
As the case currently stands, all of that can be avoided as to the Wisconsin designations because Wisconsin has submitted substantial evidence supporting this narrow distance from the shoreline approach that EPA ultimately found persuasive.

[01:46:59] Speaker 12:
In its final technical support document, the agency's technical experts placed, quote, significant weight on Wisconsin's analysis.

[01:47:09] Speaker 12:
And I would point out that this wasn't just Wisconsin's studies, Wisconsin's models.

[01:47:15] Speaker 12:
These were the studies of regional consortium.

[01:47:19] Speaker 12:
This is the lab coat that they talk about.

[01:47:22] Speaker 12:
in the briefing.

[01:47:23] Speaker 12:
And this consortium agrees that this gradient exists, that the ozone levels are highest above Lake Michigan and that they dissipate quickly as we move away from the lake.

[01:47:37] Speaker 12:
And so between the Ladco studies... I understand your argument.

[01:47:43] Speaker 04:
I can't get around the fact that the agency isn't making those arguments here.

[01:47:48] Speaker 04:
The agency that issued the

[01:47:51] Speaker 04:
designation is not making that argument.

[01:47:55] Speaker 12:
And our preference would have been that they would have?

[01:47:57] Speaker 12:
Yeah, I'm sure.

[01:47:58] Speaker 04:
But they aren't.

[01:48:00] Speaker 04:
That's why I ask you my question.

[01:48:02] Speaker 12:
I think the point is, on this record, the court doesn't need the agency's arguments.

[01:48:07] Speaker 12:
The court has the agency's expertise.

[01:48:10] Speaker 15:
So you're saying, I mean, their judgment, apparently, is they don't want to defend them because they think maybe they're going to lose.

[01:48:16] Speaker 15:
And your judgment is, we don't think so.

[01:48:19] Speaker 15:
We think we're going to win.

[01:48:20] Speaker 15:
If you were going to lose, you might be singing a different tune.

[01:48:23] Speaker 15:
right, you would rather not have us reach the merits and validate the designations and send everybody back to square one, I would trust.

[01:48:33] Speaker 15:
So it's really just a difference of assessment of where we are.

[01:48:36] Speaker 15:
I think the difficulty is, I mean, I really, I hear you and I hear Mr. Street that it can't be that an agency that has a deadline can blow through the deadline and do a kind of

[01:48:47] Speaker 15:
inadequate job, and then just all it gets from a court is more time to do a better job.

[01:48:54] Speaker 15:
And that when you have reliance of like, we want to know what standard we have to meet, how and where we plan our development, how and where we deal with getting back into attainment, we want them to tell us in a timely manner.

[01:49:07] Speaker 15:
So I get that.

[01:49:08] Speaker 15:
And what we're struggling with as a court, though, is

[01:49:12] Speaker 15:
When it has done that, fait accompli, something half-baked and thinks it doesn't want to defend it and maybe shouldn't be defending it, how do we put the genie back in the bottle?

[01:49:22] Speaker 15:
How do we protect your reliance interests and interest in clarity and not let them get away with that if that's an accurate description of what's going on?

[01:49:33] Speaker 15:
Frankly, Your Honor.

[01:49:34] Speaker 15:
Deadline.

[01:49:35] Speaker 15:
Would you support a deadline?

[01:49:36] Speaker 04:
What about that?

[01:49:38] Speaker 04:
That's an interesting question.

[01:49:40] Speaker 04:
Suppose we did this with a deadline.

[01:49:42] Speaker 04:
Would that satisfy you?

[01:49:43] Speaker 12:
It would be better for you.

[01:49:45] Speaker 12:
It would be potentially better, but our concern is that the technically supported designations that our Department of Natural Resources has put together would be disregarded again.

[01:49:59] Speaker 12:
How do you know that?

[01:50:02] Speaker 12:
How do you know it would be disregarded?

[01:50:03] Speaker 12:
You don't know that.

[01:50:05] Speaker 12:
We don't know what the agency would do, because what they discussed in their brief was basically the entire spectrum of what's possible.

[01:50:14] Speaker 12:
So we have no idea if they would give more explanation in support of these designations or if it would be a complete redesignation.

[01:50:22] Speaker 15:
I mean, they include you in that there are things they don't understand about some of these technical studies.

[01:50:27] Speaker 15:
And so one thing that could happen is you could all go back

[01:50:30] Speaker 15:
and train them up a little better, provide them with more of the underlying documentation, bolster that for ultimate review.

[01:50:36] Speaker 12:
That's certainly a possibility.

[01:50:40] Speaker 12:
The Wisconsin Department of Natural Resources' position is that there's already sufficient information in the record.

[01:50:47] Speaker 15:
Of course, and you may be right.

[01:50:49] Speaker 15:
You may be right.

[01:50:51] Speaker 12:
And so if it were simply a remand for DNR and Wisconsin DNR and EPA to talk more, I guess we couldn't object to that.

[01:51:04] Speaker 12:
But the concern is that it wouldn't be so limited.

[01:51:11] Speaker 12:
already presented a lot here.

[01:51:13] Speaker 12:
And so we think that the designations as they stand are supported by substantial evidence, as indicated specifically at JA 1299 through 1305 as EPA's

[01:51:28] Speaker 12:
primary analysis of the Wisconsin designations.

[01:51:31] Speaker 12:
And that's where they talk about the specific Wisconsin studies and analyses that they relied on.

[01:51:38] Speaker 12:
And to be sure, they didn't rely on everything that we presented, but I think that that illustrates their exercise of expertise, that they noted that some of these things aren't enough, but some of them were.

[01:51:52] Speaker 12:
And that exercise of expertise is sufficient to support these designations.

[01:51:59] Speaker 12:
Thank you, Your Honors.

[01:52:00] Speaker 12:
Thank you.

[01:52:10] Speaker 14:
This court commonly grants requests for voluntary remand from agencies without the agencies having to confess error or impropriety.

[01:52:18] Speaker 04:
That's on the line.

[01:52:19] Speaker 04:
But in all the cases I know of, the agency has told us much more than it's told us here.

[01:52:24] Speaker 04:
Like in

[01:52:30] Speaker 04:
In utility solid waste, they said that a development outside the agency's control does undermine the basis for the agency.

[01:52:41] Speaker 04:
A new statute authorized new regulatory options, new evidence.

[01:52:50] Speaker 04:
In all these cases, there's much more than all we've got basically here is let us

[01:52:58] Speaker 04:
supplement the record, right?

[01:53:00] Speaker 04:
And we will at least have a better record or we might move the case.

[01:53:05] Speaker 04:
That's what we've been told, right?

[01:53:07] Speaker 14:
Yes.

[01:53:07] Speaker 14:
And respectfully, the Linnea case suggests that's all the agency needs to do is to profess an intention to take another look.

[01:53:15] Speaker 14:
In Linnea, the problem there and the reason the court denied the voluntary remand request was that the agency was not actually going to review its original action on remand.

[01:53:26] Speaker 14:
There, they wanted a remand so that persons could submit a new application for new consideration.

[01:53:33] Speaker 14:
But Linia said, essentially, as long as EPA or an agency is looking to review their own action, that's enough.

[01:53:39] Speaker 04:
Do you think we have the authority to impose a deadline on EPA if we choose to accept your – grant your motion?

[01:53:46] Speaker 14:
Well, the remand that we're asking for here, Your Honor, is a remand of the action, not just of the record.

[01:53:52] Speaker 14:
And that's a distinction that this Court has described in Local Rule 41B.

[01:53:56] Speaker 14:
Right.

[01:53:56] Speaker 14:
So your answer is no.

[01:53:57] Speaker 14:
And the answer is no.

[01:53:59] Speaker 14:
So if we remand the record, though, we could.

[01:54:02] Speaker 14:
That's right, but the agency is asking for a broader remand of the action so that it has the opportunity on remand to consider the record and potentially take a different approach if a different approach is warranted.

[01:54:15] Speaker 04:
But you understand the concern of your opponents.

[01:54:18] Speaker 04:
They're worried about delay.

[01:54:19] Speaker 04:
Can the agency give us any assurances about that?

[01:54:22] Speaker 04:
That's where their prejudice comes from.

[01:54:25] Speaker 04:
Is there anything you can tell us that alleviates our concern about delay?

[01:54:30] Speaker 14:
just that the petitioners and the interveners have remedies available if EPA delays and that the agency is entitled to a presumption of regularity which includes a presumption that it's going to act lawfully and in a timely manner.

[01:54:45] Speaker 15:
Do you have a sense, any sense of how long your client would take?

[01:54:49] Speaker 14:
I don't, and part of the reason is that it depends on how this court decides and what it decides on the designations that are contested.

[01:54:58] Speaker 14:
Depending on what the court says about the holistic analysis or even specific parts of the record for the other designations, that might affect the path that EPA takes on remand.

[01:55:10] Speaker 14:
Speaking just very quickly to the prejudice point,

[01:55:14] Speaker 14:
The prejudice that interveners point to are present any time an agency asks for voluntary remand, and this isn't anything exceptional here.

[01:55:23] Speaker 14:
The only case that any party cites in which a court has denied a voluntary remand request for prejudice is the Utility Solid Waste Activities Group case.

[01:55:33] Speaker 14:
And the prejudice there was materially different because there, the court said that allowing voluntary remand would necessarily implicate another affirmative claim being brought by an intervener.

[01:55:46] Speaker 14:
And here, there's no such situation.

[01:55:51] Speaker 04:
OK.

[01:55:51] Speaker 04:
Thank you.

[01:55:51] Speaker 04:
Thank you.

[01:55:59] Speaker 11:
David Bach for El Paso Petitioners.

[01:56:02] Speaker 11:
I'd like to just briefly say that in the solid waste activities group, the court did say that an agency's motion to remand will generally be granted as long as there's some basis for reviewing the original action.

[01:56:15] Speaker 11:
And we've provided ample basis for showing that the El Paso designation is on law as it currently stands.

[01:56:21] Speaker 11:
So whether this court were to remand TPA, to vacate and remand,

[01:56:29] Speaker 11:
or to reach the merits, we believe that the outcome is going to be the same.

[01:56:34] Speaker 11:
And the old pastor designation is manifestly unlawful and it cannot be allowed to remain in place.

[01:56:40] Speaker 11:
One final point about the solid waste case.

[01:56:42] Speaker 11:
In that case, the court declined a voluntary remand request partly because it went to a question of law that would be intertwined with any exercise of discretion going forward.

[01:56:54] Speaker 11:
That's not the case here.

[01:56:55] Speaker 11:
We have very fact-specific things, so not necessarily on point.

[01:57:01] Speaker 02:
Thank you.

[01:57:15] Speaker 02:
In the Linnea case, delay and remand led to a bit of chaos, and the appellate court needed to tell the district court in effect what to do.

[01:57:25] Speaker 02:
So in that sense, I think Libya is useful to consider in the sense of what might happen here.

[01:57:35] Speaker 02:
I agree that the agency hasn't told us what it will do, but these challenge designations, these attainment area boundaries are so infected with serious deficiencies that remand is simply not supported.

[01:57:46] Speaker 02:
The agency goes so far as to move mountains in certain cases and disregards contribution from nearby areas of ozone precursors entirely in some of its – and particularly in the Wisconsin line-drawing exercise where only the ozone-rich area is included in the non-attainment area, not the nearby contributing area.

[01:58:11] Speaker 02:
I would note that the LADCO modeling, which Mr. Johnson Karp described,

[01:58:20] Speaker 02:
shows that ozone levels are highest near the lake, yes, but it also shows precursor emissions coming from off land, and it underestimates the extent of non-attainment areas, according to EPA's record.

[01:58:33] Speaker 02:
EPA's technical support documents and it's – MR.

[01:58:46] Speaker 02:
supported the technical basis of the Wisconsin model.

[01:58:51] Speaker 02:
And finally, on the utility solid waste activities group case, that decision also included the vacatur of a rule based on unsupported reasoning and where the harms were to public health for leaving the unsupported rule in place.

[01:59:10] Speaker 04:
This is such a case here.

[01:59:15] Speaker 04:
the petition or are we done?

[01:59:17] Speaker 04:
Oh, sorry.

[01:59:22] Speaker 04:
Yep, go ahead.

[01:59:26] Speaker 09:
Thank you, Your Honor.

[01:59:28] Speaker 09:
Certainly in the General's case, it would save judicial resources to have a voluntary remand.

[01:59:33] Speaker 09:
There's no guarantee or really any reason to believe that would be the case here, because we don't have any idea what EPA is going to do on remand.

[01:59:40] Speaker 09:
And when this Court rightly has skepticism about what EPA is going to do or EPA's motivations and delay, I think the B.J.

[01:59:48] Speaker 09:
Allen case is a case where this Court denied a voluntary remand.

[01:59:52] Speaker 09:
B.J.

[01:59:52] Speaker 09:
Allen, 1990, from this Court.

[01:59:54] Speaker 09:
Certainly, as Judge Datil pointed out, under this court's existing case law, it's not sufficient to simply say we want to... I didn't say it wasn't sufficient.

[02:00:03] Speaker 04:
I said in our cases, the EPA has told us more than they told us here.

[02:00:11] Speaker 04:
That's not the same as saying what they've told us here is insufficient.

[02:00:14] Speaker 09:
Let me put it another way then, which is to grant a voluntary remand on this case would be extending the case law and extending the justifications that were allowed and I believe would set a bad precedent and an incentive for the EPA to do that in the future.

[02:00:28] Speaker 09:
Finally, we heard no

[02:00:30] Speaker 09:
answer to the fact that there's a specific statutory procedure that allows EPA to revisit existing designations and that would address the deadline problem here.

[02:00:39] Speaker 09:
If this court denies the petition for review, EPA can go right back and do the proper statutory homework and due diligence that it needs to do and issue the notice and give reasons to the governor and then go through the process of getting better data or revising its designation.

[02:00:55] Speaker 09:
If there are no further questions we'd ask that the petition be denied.

[02:01:11] Speaker 12:
Thank you, Your Honors.

[02:01:13] Speaker 12:
I'd like to just reply briefly to this week's point that the designations in Wisconsin are infected with deficiencies.

[02:01:21] Speaker 12:
As Judge Pillard questioned earlier, if the court were to find EPA's reasoning persuasive as to Sheboygan, which we urge the court to do, that reasoning applies throughout Wisconsin's lakeshore.

[02:01:37] Speaker 12:
So if Sheboygan is not infected with deficiencies,

[02:01:41] Speaker 12:
none of these other counties are infected with any deficiencies.

[02:01:46] Speaker 12:
And that's the position that our Department of Natural Resources urged in its second technical support document when EPA first promulgated only certain partial designations.

[02:01:58] Speaker 12:
Our DNR came back and said, no, no, this applies throughout our lakeshore.

[02:02:02] Speaker 12:
And so as Sheboygan, I think, is clearly sustainable, so are all the counties in Wisconsin.

[02:02:10] Speaker 12:
Oh, thank you.

[02:02:12] Speaker 04:
Thank you.

[02:02:15] Speaker 04:
Now I think we're done.

[02:02:17] Speaker 04:
Thank you all for sticking pretty close to your times and for your helpful arguments.

[02:02:22] Speaker 04:
The case is submitted.