[00:00:02] Speaker 00: case number 18. [00:00:23] Speaker 02: Good morning, Your Honors. [00:00:24] Speaker 02: May it please the Court, Gordon Summers for Appellant Sierra Club. [00:00:28] Speaker 02: With me at council table is Jim Pugh. [00:00:30] Speaker 02: I'd like to reserve three minutes for a medal, please. [00:00:35] Speaker 02: For years, the Supreme Court has attempted to rein in the misuse of the term jurisdictional by lower courts. [00:00:42] Speaker 02: And yet, that's exactly the sort of error that we are here today appealing because the lower court mistakenly understood the central merits question in this case, which is how you interpret the substantive requirements of the Clean Air Act as a matter of jurisdiction. [00:00:57] Speaker 02: Now, it's well established that the existence of a cause of action is not jurisdictional. [00:01:03] Speaker 04: But there are some statutes that are both, that both create a cause of action and provide subject matter jurisdiction. [00:01:11] Speaker 04: That's right, Your Honor. [00:01:12] Speaker 04: Why isn't this one of them, especially since the statute of issue says the district court shall have jurisdiction? [00:01:20] Speaker 02: Well, Your Honor, the parties absolutely agree that Section 7604 provides both the relevant waiver of sovereign immunity and the cause of action. [00:01:28] Speaker 02: The issue is that the general rule that circuits that have looked at this have followed based on the Supreme Court's holding in Steel Cove is that where the cause of action overlaps with the jurisdictional issue, [00:01:42] Speaker 02: The court essentially should, what Judge Akuta said, for instance, on the Ninth Circuit, is that the court should assume jurisdiction, treat this as a merits question, because otherwise you lose this key distinction between jurisdiction and merits. [00:01:54] Speaker 02: What court in our circuit has said that? [00:01:56] Speaker 02: The question has not co-op in this circuit, Your Honor, but the Supreme Court's holding in Steelco binds this circuit, and Steelco says very plainly that where these issues overlap, the Court needs to first establish jurisdiction. [00:02:10] Speaker 04: Well, it didn't say when the issues overlap, because there was no issue in Steelco whether that statute was also jurisdictional. [00:02:19] Speaker 04: It was a statute that purely provided the cause of action, and the jurisdiction was based on a different statute. [00:02:26] Speaker 02: Well, Your Honor, what the lower court did in Steele Code was it looked at the citizen suit provision, found that the citizen suit provision, in the district court's opinion there, did not allow the suit to go forward and dismissed for jurisdiction. [00:02:39] Speaker 02: And Judge Scalia, writing in Steele Code, began by saying very clearly, this is a merits question. [00:02:46] Speaker 02: And that was important because the federal question statute has a similar sort of overlap where the issue of whether an issue arises under federal law, one might say if you don't actually have a cause of action, then there is no federal question. [00:03:01] Speaker 02: But as here, the issue is actually [00:03:06] Speaker 02: Is there an arguable cause of action? [00:03:08] Speaker 02: In other words, is there a question under federal law here? [00:03:10] Speaker 02: Has you have you alleged a non-discretionary duty? [00:03:13] Speaker 02: That's the grant of jurisdiction. [00:03:14] Speaker 02: What difference does it make? [00:03:18] Speaker 02: Your Honor, there's myriad consequences. [00:03:20] Speaker 02: Here, most importantly, it led the court, the lower court, to misunderstand this court's holding in Sierra Club against Thomas. [00:03:27] Speaker 02: But it also has very grave consequences for litigants because it would essentially turn every statutory interpretation question in one of these citizen suits into a question of jurisdiction that could then be raised to a sponte later on in litigation, could be decided before something like standing. [00:03:45] Speaker 02: And the error here that occurred was it also encourages the district courts to look at these statutory questions through this jurisdictional lens where they then are prone to apply things like the sovereign immunity narrow construction axiom. [00:04:01] Speaker 02: And so here the district court, looking at this as a jurisdictional question, [00:04:06] Speaker 02: misunderstood how Sierra Club against Thomas operates. [00:04:10] Speaker 02: That case is about jurisdiction, and so all it does is route claims between the district court and the circuit court. [00:04:16] Speaker 02: It essentially says if you are bringing a non-traditionalary duty claim, that's something the district court has the power to decide, and if it is essentially a claim for review, that goes to this circuit. [00:04:29] Speaker 02: What the district court seemed to understand based on the way it was quoting from that case is that that case was somehow creating this candidate of interpretation for how you interpret the statute. [00:04:40] Speaker 02: which Thomas simply doesn't do. [00:04:41] Speaker 02: The only claim in Thomas was unreasonable delay, and there's actually very little statutory analysis happening there. [00:04:49] Speaker 01: Don't you have to read the citizen suit provision in that way, given the nature of what a citizen suit provision is? [00:04:57] Speaker 01: I mean, do you think Congress could grant a citizen suit provision against the executive branch for a duty that was discretionary? [00:05:06] Speaker 02: Well, it has, Your Honor, and it did that later. [00:05:08] Speaker 01: For a discretionary duty? [00:05:09] Speaker 02: Yes, Your Honor. [00:05:10] Speaker 02: In the 1990 amendments, it actually responded to Thomas in part by amending 7604 and adding this jurisdictional part at the end of it and allowing suit for unreasonable delay. [00:05:20] Speaker 02: And under Thomas, the distinction between these unreasonable delay suits and the suits under A2 for non-discretionary duties [00:05:27] Speaker 02: is whether or not it's a discretionary duty. [00:05:30] Speaker 02: What Thomas does is it essentially tells you what you have to plead to be pleading a non-discretionary duty. [00:05:36] Speaker 02: So you have to have a deadline and a categorical duty. [00:05:38] Speaker 02: And so it has to be something where it's do this by a certain date. [00:05:42] Speaker 02: And then the district can look at what's happening. [00:05:44] Speaker 01: Isn't that essentially part of the jurisdiction? [00:05:48] Speaker 02: Well, Your Honor, they overlap, certainly, because it's both the waiver of sovereign immunity and the cause of action, but it is fundamentally the cause of action. [00:05:56] Speaker 02: These are the elements of the cause of action, as you have alleged, the violation of a duty which is not discretionary. [00:06:04] Speaker 02: And that's, it can't, I want to be very clear that it cannot be that that is an entirely jurisdictional question because otherwise the court would be going through this exercise of interpreting this Clean Air Act's substantive requirements without knowing if it had jurisdiction to do so. [00:06:22] Speaker 04: What Congress did when it granted jurisdiction was an empowering... Well, you always have jurisdiction to determine whether we have jurisdiction. [00:06:28] Speaker 04: Certainly, Your Honor. [00:06:29] Speaker 04: I mean, that's the way that it works. [00:06:31] Speaker 04: It's not a chicken or egg problem. [00:06:35] Speaker 04: Or we've solved that chicken or egg problem by saying we don't care whether it's the chicken or the egg. [00:06:39] Speaker 04: We want to decide which one it is. [00:06:42] Speaker 02: Well, that's certainly right, Your Honor. [00:06:44] Speaker 02: But as the Supreme Court warned in Steel Co., if you do that in these cases where there's overlap, where you turn the cause of action into the jurisdictional question, it makes every statutory question in one of these citizens' seats jurisdictional. [00:06:58] Speaker 02: And that can't be right. [00:07:00] Speaker 02: What the court can do to designate this jurisdiction is look at 7604. [00:07:04] Speaker 04: It can't be right. [00:07:05] Speaker 04: Why? [00:07:06] Speaker 04: I mean, if the statute is jurisdictional, and that's what it does, then that's what it does. [00:07:12] Speaker 04: But there are lots of statutes, citizen suit statutes, that aren't jurisdictional. [00:07:18] Speaker 04: And just for the ones that are, then we do that analysis. [00:07:23] Speaker 04: I don't understand what the doctrinal [00:07:27] Speaker 04: problem or slippery slope is here. [00:07:30] Speaker 02: This slippery slope, Your Honor, is that it turns this exercise of interpreting the Phoenix requirements for any provision that somebody raised under a citizen suit into a question of jurisdiction. [00:07:41] Speaker 02: Jurisdiction, as the Supreme Court has defined it, is the power to declare what the law is. [00:07:46] Speaker 02: And so while certainly the court has power to decide its jurisdiction, it can interpret 7604, interpret that, once you get into interpreting what exactly Congress wanted EPA to do when in these substantive requirements, [00:07:59] Speaker 02: That is a merits exercise. [00:08:01] Speaker 04: Well, I'd like to get to the merits and try to understand something. [00:08:05] Speaker 04: So in the district court, there was discussion about what the five-year deadline means in the statute, subsection B3 of, what are we talking about, 70s? [00:08:24] Speaker 04: 429 or 7629? [00:08:25] Speaker 04: 7429. [00:08:25] Speaker 04: 7429. [00:08:26] Speaker 04: And the district court said, well, certainly the EPA has to promulgate a FIP within five years. [00:08:43] Speaker 04: In its opinion, it said that EPA conceded that. [00:08:48] Speaker 04: I looked at the transcript and it looks like EPA [00:08:51] Speaker 04: did all they could kind of concede it without conceding it. [00:08:55] Speaker 04: But we'll see what council has to say about that in a minute. [00:09:01] Speaker 04: But I believe it was you who said that that was not what you put in your notice of suit. [00:09:10] Speaker 04: So I'm assuming you put in your notice of suit that the non-discretionary duty was to promulgate a FIP within two years? [00:09:19] Speaker 04: That's right, Your Honor. [00:09:20] Speaker 04: So are you saying that you are not pursuing, suing relief if they're past the deadline, if we conclude that the deadline is a five-year deadline rather than a two-year deadline? [00:09:36] Speaker 02: That's right, Your Honor, we haven't pled that, but I want to make sure that this Court understands that the district court seemed confused because the five-year compliance deadline is a requirement of the plan. [00:09:50] Speaker 02: It's not clearly a deadline on EPA, and so the remedy there would be an unreasonable delay suit. [00:09:56] Speaker 02: That's what EPA argued. [00:09:58] Speaker 02: That would make this provision essentially the odd man out within 7429, where every other piece of that statutory scheme is a clear date-certain deadline to do something within one year, 180 days, within two years. [00:10:11] Speaker 02: And the point of that is, as this court has held, under unreasonable delay suits, EPA gets considerable deference. [00:10:18] Speaker 02: That's not what Congress wanted. [00:10:19] Speaker 02: The text and the legislative history make very clear that Congress sought to eliminate EPA's discretion here. [00:10:25] Speaker 02: And it did so with deadlines that could be enforced. [00:10:28] Speaker 04: Well, let me tell you, you know, I'm too old to play poker. [00:10:31] Speaker 04: You know, I could get hit by a bus tomorrow or whatever. [00:10:34] Speaker 04: So it's going to tell you like it is. [00:10:38] Speaker 04: The way I see this statute is that Congress definitely wanted a deadline. [00:10:44] Speaker 04: They wanted a deadline [00:10:46] Speaker 04: They wanted EPA, they wanted the state first, once EPA promulgated the guidelines, to submit its plan to the EPA within a year. [00:10:58] Speaker 04: And it wanted EPA, within 180 days of receiving that state plan, to give it an approval or disapproval. [00:11:07] Speaker 04: If it were a disapproval, if it's an approval, fine, then that plan will require compliance within three years. [00:11:17] Speaker 04: right, or no later than five years after the guideline was promulgated. [00:11:22] Speaker 04: If it's a disapproval, then the state can resubmit a plan. [00:11:31] Speaker 04: But the way I see it is that if they don't resubmit it within basically another six months after they get the disapproval from EPA, they're out of luck because [00:11:45] Speaker 04: that two years in the statute means that EPA has to promulgate its own plan unless they get an approvable plan, meaning that the state has submitted a plan to them after a prior disapproval within the two-year deadline. [00:12:08] Speaker 04: I don't see there being a hard deadline for the FIP [00:12:14] Speaker 04: other than the five years. [00:12:17] Speaker 04: I mean, Congress is very clear that it says that such plan, meaning the federal plan, shall assure compliance by five years from the promulgation of the guidelines. [00:12:31] Speaker 04: So if that's not a hard and fast deadline, I don't know what is. [00:12:37] Speaker 04: But you're saying that if that's the way that we read the statute, [00:12:42] Speaker 04: you're not seeking that relief even though they're beyond five years because you didn't plead that? [00:12:51] Speaker 02: That's right, Your Honor, but I want to make one point briefly in response. [00:12:58] Speaker 02: It's that EPA knows at the one-year mark that it needs to do a plan because there's only one federal plan and all EPA is doing there [00:13:06] Speaker 02: is essentially adopting the model rule that it creates when it develops the guidelines. [00:13:10] Speaker 02: This isn't just one of these exercises where they have to do something for each state and go through a whole, develop a whole new rule. [00:13:17] Speaker 02: They're essentially adopting something they've already got. [00:13:19] Speaker 02: And EPA's regulations reflect this. [00:13:22] Speaker 02: In past federal plans, EPA cited a provision that it also uses under Section 111, which is 40 CFR 60.27, which lays out that EPA will begin [00:13:35] Speaker 02: creating this plan after that initial submission deadline, as soon as any state fails to submit something. [00:13:42] Speaker 02: And I agree, if a state submits something later, then that's fine. [00:13:46] Speaker 02: They won't be covered by that federal plan. [00:13:49] Speaker 02: They can come in at any point and do that. [00:13:51] Speaker 02: But what Congress wanted, as is abundantly clear from all of these deadlines, was to ensure these protections had effect. [00:13:58] Speaker 02: What's happened here is this court in 2007 in the NRDC against EPA case invalidated EPA's, this is the SISWI definitions rule because that rule essentially exempted a number of commercial and industrial incinerators that this court held the plain language required EPA to regulate. [00:14:16] Speaker 02: EPA amended its regulations to cover those units by updating the standards. [00:14:21] Speaker 02: And yet here we are a decade later, and none of those units are subject to standards in a number of states like California, Texas, Pennsylvania, and others, because they've never been implemented. [00:14:31] Speaker 02: So the only way any of Congress's mandates here would have effect is if there's a clear deadline that ensures a federal plan comes out and gives units time to reach compliance by that five-year mark. [00:14:43] Speaker 02: I'd like to see it passed by time. [00:14:45] Speaker 02: OK. [00:14:46] Speaker 01: Actually, I have one more. [00:14:48] Speaker 01: Are you also still continuing to rely on the APA? [00:14:52] Speaker 01: Yes, Your Honor. [00:14:53] Speaker 01: Can you say something more about that argument, given the specific carve out to section 702 of the APA? [00:15:00] Speaker 02: Absolutely, Your Honor. [00:15:02] Speaker 02: EPA seems to read 7604 as somehow forbidding relief. [00:15:08] Speaker 02: And it's important to understand that 7604 is also the cause of action here, because EPA's argument boils down to this claim that [00:15:16] Speaker 02: Essentially, if we win on our cause of action, we have jurisdiction, whether under the Clean Air Act or under the EPA, and if we don't, then there's no jurisdiction. [00:15:23] Speaker 02: And for all the reason that Outlanders took it, that can't be right, because the court has to decide it has jurisdiction and then [00:15:31] Speaker 02: you can resolve the case. [00:15:33] Speaker 02: The jurisdiction can't depend on your success on the merits. [00:15:36] Speaker 02: But additionally, this court has held repeatedly that the APA waives relief under any statute, whether under the APA or, sorry, waives sovereign immunity under any statute, whether it's the APA or not. [00:15:48] Speaker 02: And the Supreme Court invented, under a very similar citizen supervision, [00:15:52] Speaker 02: wrote that nobody could even contend that that citizen suit provision, which didn't even have the Express Saving Clause that 7604E provides, that nobody could contend that that forbid relief. [00:16:04] Speaker 01: Bennett's reading of the statute in that context wasn't an authoritative reading. [00:16:08] Speaker 01: I mean, Bennett was focused on other issues. [00:16:12] Speaker 02: Your Honor, yes, Bennett addressed a number of issues, but it did allow the suit to go forward under the APA. [00:16:18] Speaker 02: So I do believe it carries significant weight. [00:16:23] Speaker 02: And I would add that EPA had no response to that so far. [00:16:28] Speaker 00: All right, we'll give you a couple minutes of your time. [00:16:30] Speaker 00: Thank you. [00:16:30] Speaker 00: Mr. London. [00:16:36] Speaker 03: May it please the court, Robert London representing EPA. [00:16:39] Speaker 03: I'll start off with a jurisdictional issue. [00:16:42] Speaker 03: The district court here correctly dismissed because there's no applicable waiver of sovereign immunity. [00:16:46] Speaker 03: The waiver of sovereign immunity in 760482 doesn't apply here. [00:16:52] Speaker 03: Mr. Summers is right. [00:16:53] Speaker 03: This is a case of overlap. [00:16:55] Speaker 03: We've got an overlapping jurisdictional question with the merits. [00:16:59] Speaker 03: But that doesn't mean the dismissal for jurisdiction is wrong. [00:17:02] Speaker 03: It means it's right. [00:17:03] Speaker 03: If there's no fit in 760482, then sovereign immunity is not waived and the district court got it right and dismissed for lack of jurisdiction. [00:17:12] Speaker 03: As to Steele Company, that case has nothing to do with sovereign immunity. [00:17:16] Speaker 03: Sovereign immunity's not mentioned. [00:17:18] Speaker 03: It's clear in Steele Company, it's just talking about overlap between cause of action and the merits. [00:17:24] Speaker 03: And cause of action question's not jurisdictional, so we just don't have the same situation here where we have a defined waiver of sovereign immunity, which then informs district court's jurisdiction. [00:17:35] Speaker 04: How do we know that 7604 is a waiver of sovereign immunity as opposed to just [00:17:42] Speaker 04: establishing jurisdiction in defining what the cause of action is? [00:17:48] Speaker 03: Well, I think one reason we know it is because there's no other applicable waiver here that they've identified. [00:17:54] Speaker 03: I'll talk about the APA in a minute. [00:17:56] Speaker 03: They need one. [00:17:57] Speaker 03: That's the one they've pointed to as a waiver of sovereign immunity. [00:18:02] Speaker 03: You can't sue the United States without a waiver of sovereign immunity, and the two they've pointed to here are 7604A and the APA. [00:18:10] Speaker 03: So it has to be one or the other on their theory of the case. [00:18:13] Speaker 03: And 7604- You don't think it can be 702? [00:18:16] Speaker 03: Well, that's the APA provision. [00:18:18] Speaker 03: Yeah. [00:18:18] Speaker 03: It cannot be in this case because 702 says, if another, I'm paraphrasing, if another statute expressly or impliedly forbids relief, then it doesn't apply. [00:18:29] Speaker 03: And in the Maci v. Nash case from the Supreme Court, the court explained [00:18:35] Speaker 03: 702 is not a back door to jurisdiction under another statute. [00:18:39] Speaker 03: So if we're talking about, in that case, the By Title Act, or here, the Clean Air Act, you can't use 702 to increase the scope of the jurisdiction or the waiver of sovereign immunity in that other statute. [00:18:52] Speaker 03: So the Supreme Court's answered that, and it's clear here that you can't use then 702 in the APA to expand the jurisdiction and the waiver of sovereign immunity in 7604A. [00:19:05] Speaker 03: Bennett v. Spear, which plaintiff relies on, doesn't change this analysis at all. [00:19:12] Speaker 03: There, the question was, can you bring an APA claim, an APA-based cause of action, or is it precluded by the Endangered Species Act Citizenship Provision? [00:19:22] Speaker 03: And the answer there was the Supreme Court said no. [00:19:24] Speaker 03: But they're very clear here that they haven't brought an APA claim. [00:19:28] Speaker 03: They've brought a Clean Air Act, non-discretionary duty claim. [00:19:32] Speaker 03: They're trying to use the APA's Waiver of Sovereign Immunity to expand that waiver, but they haven't pled a claim under the APA. [00:19:39] Speaker 03: So Bennet v. Spear's discussion of that issue just is not relevant here. [00:19:43] Speaker 03: I mentioned Steel Company already. [00:19:49] Speaker 03: If there's no further questions on jurisdiction, we think that is straightforward. [00:19:54] Speaker 03: And at the end of the day, as a question suggested, it doesn't make a difference in this case to the outcome. [00:20:00] Speaker 03: Either they have a nondiscretionary duty claim, or they don't. [00:20:05] Speaker 03: We think the right answer is dismissal for lack of jurisdiction. [00:20:08] Speaker 03: But in any event, it leads to the same place. [00:20:11] Speaker 03: And this court, we've cited a couple of cases where this court has said, well, we're not sure if it's jurisdictional, or maybe it's not jurisdictional. [00:20:17] Speaker 03: We can affirm on this alternative basis. [00:20:19] Speaker 01: So I have one question. [00:20:21] Speaker 01: If we did determine that the duty here was discretionary, why not dismiss for failure to state a claim? [00:20:27] Speaker 03: Well, we think the right answer is dismiss. [00:20:33] Speaker 03: We think the subset right answer is for failure, for lack of jurisdiction. [00:20:37] Speaker 03: And that's because here we have this overlap. [00:20:40] Speaker 03: We have the waiver of sovereign immunity, which is informed by whether it's a non-discretionary duty or not. [00:20:45] Speaker 03: And so when it's not a non-discretionary duty, [00:20:48] Speaker 03: We think the right answer is dismissal for lack of jurisdiction. [00:20:51] Speaker 03: That's what this court has done in the Federal Tort Claims Act cases we cited, counsel for American Islamic Relations. [00:20:56] Speaker 03: And Laughlin is what it did in an unpublished case, the American Road and Transportation Builders. [00:21:02] Speaker 03: It's what the Fourth Circuit did in Murray Energy, the Ninth Circuit in Wild Earth Guardians. [00:21:06] Speaker 03: So the case law on this, we think, is really clear. [00:21:08] Speaker 03: If in this context, in the Clean Air Act 7604, there's no non-discretionary duty, the right answer is to dismiss for lack of jurisdiction. [00:21:16] Speaker 03: But that said, the right answer is to dismiss because there is no such duty. [00:21:21] Speaker 03: And turning to that, turning to the duty question in 7429B3, it's been settled in this court since 1987 when Sierra Club v. Thomas came out that to prevail on this sort of claim, the nondiscretionary duty claim, you have to show that there's a clear-cut nondiscretionary duty to act by a date certain. [00:21:42] Speaker 04: On that line, what does the last sentence of B3 mean? [00:21:49] Speaker 03: The last sentence of B3, [00:21:52] Speaker 03: means that the plan, when it's promulgated, when a federal plan is promulgated by EPA, has to assure compliance within five years. [00:22:01] Speaker 03: But... Five years of the date that the relevant guidelines are promulgated, right? [00:22:05] Speaker 03: Right. [00:22:06] Speaker 03: But it doesn't require promulgation of the plan on any time frame. [00:22:11] Speaker 04: And there's a few... How can a plan that is promulgated more than five years after [00:22:20] Speaker 04: the guidelines are promulgated, assure compliance with the guidelines within five years. [00:22:26] Speaker 03: Well, it would have to, it would not assure compliance with the guidelines within five years. [00:22:31] Speaker 03: So you have to have a FIP within five years of the guidelines. [00:22:35] Speaker 03: I think the phrasing of this means the defect is in the plan, and not in the failure to promulgate the plan. [00:22:42] Speaker 03: So, such branch... You know what my response is to that? [00:22:45] Speaker 03: I think you may disagree, but... [00:22:49] Speaker 03: Two points on this quickly. [00:22:50] Speaker 03: The language of that last sentence of B3 says, such plan shall assure. [00:22:55] Speaker 03: And so that's the mandatory requirement, what the plan has to require. [00:23:00] Speaker 03: Now, I understand your point. [00:23:02] Speaker 04: Everything else in this is a deadline for doing something, as in doing a plan. [00:23:07] Speaker 04: And you're saying that five years doesn't mean a deadline for when the plan must be done. [00:23:13] Speaker 04: It means some sort of toothless content requirement that says, you know, comply within five years, but we can say that ten years after the guidelines. [00:23:27] Speaker 04: And as long as we say that, then we've written a plan that complies with the statute. [00:23:32] Speaker 03: Is that your interpretation of that sentence? [00:23:35] Speaker 03: I don't think that's accurate, because it's not toothless. [00:23:39] Speaker 03: What it's relevant to is not that mandatory duty with a fixed deadline to act by date certain is relevant to an unreasonable delay claim. [00:23:47] Speaker 03: So in that context, this court in the track case with the track factors of one. [00:23:52] Speaker 04: Well, it seemed to me that they would have a lay down suit [00:23:56] Speaker 04: They'd have four aces. [00:23:58] Speaker 03: Got it. [00:23:58] Speaker 04: It's a wild card. [00:24:00] Speaker 03: We have a backup argument. [00:24:02] Speaker 03: They haven't pleaded that claim here. [00:24:04] Speaker 03: If you look at the Joint Appendix, page 50, that's their claim. [00:24:07] Speaker 04: Well, if I were them, I'd be in the courthouse tomorrow filing that claim. [00:24:11] Speaker 03: They may be able to do that. [00:24:13] Speaker 03: In any event, in this case, their claim is clear that it's based on this. [00:24:17] Speaker 03: They want to establish law on this two-year language. [00:24:20] Speaker 03: And that's what they're seeking here. [00:24:21] Speaker 03: They've made a litigation choice. [00:24:23] Speaker 03: It's not like they didn't read all the way through B3. [00:24:25] Speaker 03: They read it all. [00:24:25] Speaker 03: And they said, here's our claim, two years. [00:24:28] Speaker 03: That's it. [00:24:29] Speaker 03: You have to do it in two years. [00:24:31] Speaker 03: And if you look at their opening brief, pages 36 to 37, they double down on that. [00:24:35] Speaker 03: They say, here is what we're arguing. [00:24:37] Speaker 03: And they say, consistent with the government's interpretation, well, that language applies to what has to be in the plan. [00:24:47] Speaker 03: And so this is on page 36 to 37 of the brief. [00:24:50] Speaker 03: Because the Act says, such plan shall assure compliance and not EPA shall assure compliance, there could be no violation of the five-year compliance deadline until either a state or EPA published a plan. [00:25:02] Speaker 03: So that's Sierra Club's argument. [00:25:03] Speaker 03: And that's our argument, too, on the five-year language. [00:25:06] Speaker 03: In any event, the court doesn't have to reach that language now because they didn't plead it. [00:25:11] Speaker 03: They've made clear in this argument and their briefs that they're not making that argument. [00:25:17] Speaker 03: If and when a federal plan comes out, we can finalize, we can see what it says with respect to the five years. [00:25:26] Speaker 03: Finally, just on the merits and the meaning of the two-year language, we think the district court's analysis is entirely right on this. [00:25:33] Speaker 03: The within two years applies to the state, state action, not the federal plan action. [00:25:38] Speaker 03: The rule of last antecedent fully supports that reading. [00:25:42] Speaker 03: And if you step back and look at the bigger structure of this provision, the state has one year to submit its initial plan and the EPA has a half year to get back to it. [00:25:51] Speaker 03: And then we have this potential extended back and forth. [00:25:54] Speaker 03: And it doesn't make sense to flatly mandate that at the two-year mark, when that back and forth could still be going on, that the federal government has to come in with a final federal plan. [00:26:06] Speaker 03: That not only has a federal plan, but addresses all parts of it. [00:26:11] Speaker 04: So just so that we're clear here, you agree that the statute is clear that EPA has to promulgate the guideline, right? [00:26:21] Speaker 03: Yes, and we have been in the summary judgment briefing below. [00:26:24] Speaker 03: One of their three claims that we were beyond the five years, district court has ordered a remedy on that. [00:26:29] Speaker 03: We did not appeal. [00:26:30] Speaker 04: And you agree that the state has a non-discretionary duty to submit a plan to EPA within a year? [00:26:40] Speaker 03: I don't think the state can be sued under 7604A. [00:26:43] Speaker 03: Understood. [00:26:44] Speaker 03: But there's a clear one-year deadline for the state. [00:26:46] Speaker 04: But there's a clear one-year deadline. [00:26:47] Speaker 04: And you agree that there's a clear 180-day deadline for EPA to approve or disapprove, with reasons, the state plan? [00:26:57] Speaker 03: Yes. [00:26:57] Speaker 03: The administrator shall approve or disapprove any state plan within 180 days. [00:27:01] Speaker 03: That 180 days is right after the operative language. [00:27:04] Speaker 04: And you agree that [00:27:06] Speaker 04: Two years from the guideline is the last time when the state may submit an approvable plan if their first plan was disapproved. [00:27:17] Speaker 03: I don't agree that the state is to do that by the two-year mark, but at the end of B2, there's no time limit on [00:27:27] Speaker 03: any state may modify and resubmit a plan which has been disapproved by the administrator. [00:27:32] Speaker 03: So we think, EPA thinks that if beyond the two-year mark, the state's like, we want another try. [00:27:37] Speaker 03: You just said our plan's not approved. [00:27:38] Speaker 04: So you think that the way that this statute is best interpreted is if the state submits a plan, EPA disapproves it and says, we're disapproving it because it doesn't have A, B, and C. And then the state resubmits the same plan. [00:27:56] Speaker 04: without addressing A, B, and C, and then that gets disapproved again for the same reasons. [00:28:02] Speaker 04: The state could keep resubmitting the same plan and keep this ball rolling indefinitely in the Congress, that that's what Congress really meant when they have that language that said that the state may resubmit a plan. [00:28:15] Speaker 03: It says modify and resubmit, so if it's the same plan, I think maybe, no, it has to be, they have to modify and resubmit. [00:28:22] Speaker 03: And I think there's probably enough flexibility here that if the state's trying to gain the system, that EPA can move forward. [00:28:30] Speaker 03: There's no bar on EPA. [00:28:33] Speaker 03: There's no language in here that says EPA cannot issue a federal plan. [00:28:37] Speaker 04: Exactly. [00:28:38] Speaker 04: That's what I was trying to get you to concede. [00:28:41] Speaker 04: So why don't we concede that? [00:28:44] Speaker 04: Then what does the last sentence of B3 mean if it doesn't mean that that plan that EPA does? [00:28:52] Speaker 04: has to be created within five years. [00:28:58] Speaker 03: What it means is that the plan should have a deadline within it of effective date not later than five years after the date the relevant guidelines are promulgated. [00:29:08] Speaker 03: So the plan needs to assure something. [00:29:10] Speaker 04: Now, you're right, and we've gone... So you think that Congress would be fine for Congress, given this language, for EPA to submit a plan six years after the guidelines, so long as that plan wrote in it, hey, you're supposed to comply within five years of the guideline. [00:29:31] Speaker 03: There's no deadline. [00:29:32] Speaker 03: Our read of the statute, there's no deadline that applies to the federal plan. [00:29:35] Speaker 03: They can bring an unreasonable delay suit. [00:29:38] Speaker 03: And one of the factors they look at for such a suit, and they haven't here, that's clear, one factor they look at is look at the context in the deadlines that are non-discretionary, are clear, and use those to inform how much delay is unreasonable. [00:29:52] Speaker 03: And you also look at agencies' workload or resources and all the other track factors. [00:29:57] Speaker 03: But I think you could, in deciding whether the delay is unreasonable or not, look at that last sentence of B3 and have it be one consideration. [00:30:06] Speaker 03: But we don't think it's a hard line on when the federal plan has to be developed and implemented in force. [00:30:16] Speaker 04: So if I were, you know, I used to be a district court judge, so if I issued an order that said that, you know, you have to comply by my order by doing something within, you know, 30 days, [00:30:36] Speaker 04: You don't think that EPA would be in violation of my order by coming back, you know, 45 days later and say, well, we intended to, you know, comply within 30 days? [00:30:50] Speaker 03: I think if you said, EPA, you must do X, and then you said, when you do X, that X shall assure compliance with not later than five years after the date of some other action. [00:31:04] Speaker 03: We would say, well, you didn't set a deadline for us to do the thing. [00:31:08] Speaker 03: You said that the thing you do shall assure compliance with a different triggering event. [00:31:15] Speaker 03: In any event, I understand the Court has questions about this argument. [00:31:23] Speaker 03: I don't think the court needs to address this language at all because they didn't plead it. [00:31:26] Speaker 03: They're clear in their brief that they're not making the argument. [00:31:28] Speaker 03: In fact, they agree with our interpretation. [00:31:30] Speaker 03: And the court should leave for the next lawsuit, either an unreasonable delay lawsuit, or they can bring a mandatory duty suit that's based on this language. [00:31:37] Speaker 03: But their complaint's clear, Joint Appendix, page 50, that that's not the claim they've brought. [00:31:42] Speaker 03: They want the two-year deadline. [00:31:44] Speaker 03: For all the reasons we explained, there is no deadline that applies to the federal plan. [00:31:49] Speaker 00: All right. [00:31:50] Speaker 00: Thank you. [00:31:50] Speaker 03: Thank you. [00:32:01] Speaker 02: EPA is making very clear before this court that what it envisions here is some sort of indefinite back and forth with the states. [00:32:11] Speaker 02: And that's not what Congress wanted. [00:32:15] Speaker 02: I want to make a couple quick points about that and then one brief one on sovereign immunity if there's time remaining. [00:32:21] Speaker 02: On this five-year deadline, it's important to see that under this court's precedent, we would be not in the domain of a mandatory duty suit, but we'd be in one of these unreasonable delay suits. [00:32:34] Speaker 02: Because as EPA says, it is a requirement of the plan. [00:32:38] Speaker 02: That puts us in this territory where EPA, under this court's precedent, unfortunately, is able to essentially balance Congress's desires against competing demands on the agency. [00:32:50] Speaker 02: They can blow past the five-year deadline and say, well, we had a lot of other stuff that Congress also wanted us to do if they're under this unreasonable delay scheme. [00:33:00] Speaker 02: There's a reason Congress set deadlines and has this mandatory duty framework that doesn't allow that. [00:33:06] Speaker 01: And that's- I do not hear relying on the five-year deadline. [00:33:09] Speaker 02: I'm sorry, Your Honor? [00:33:10] Speaker 01: You're not here relying on the five-year deadline. [00:33:12] Speaker 02: That's right, Your Honor, and I'm explaining why that wouldn't help us in the way that a mandatory deadline like this two-year one that we're arguing here would, because that would allow for this discretion that Congress ought to eliminate in 7429. [00:33:30] Speaker 02: I also want to be clear that this notion that you need to have this extensive back and forth is a bit of a fallacy. [00:33:37] Speaker 02: Yes, states are free to submit plans later, but again, EPA only have one plan they need to develop, and there's a number of states, you can actually see this in EPA's proposed federal plan for the CISPA units that they've subsequently abandoned. [00:33:49] Speaker 02: There are states that tell EPA, we want to use a federal plan. [00:33:52] Speaker 02: So EPA knows, and it knows every time, as long as even one state misses these deadlines, that it's going to have to do a plan. [00:34:00] Speaker 02: This isn't going to be wasted effort by EPA where maybe the state will get it right. [00:34:05] Speaker 02: See that amount of time, so I'll pause there unless there's any further questions. [00:34:10] Speaker 02: All right. [00:34:10] Speaker 02: Thank you. [00:34:11] Speaker 02: Thank you.