[00:00:00] Speaker 00:
Case number 21-1263, Ed Al.

[00:00:04] Speaker 00:
Board of County Commissioners of Royal County Colorado Petitioner versus Environmental Protection Agency and Michael S. Reagan in his official capacity as Administrator of the U.S.

[00:00:16] Speaker 00:
Environmental Protection Agency.

[00:00:18] Speaker 00:
Mr. Davis for the petitioners in case number 22-13.

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Ms.

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St.

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Romaine for the respondents in case number 22-13.

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Mr. Bach for the interveners for the respondents in case number 22-1013.

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Mr. Schentman for the petitioner in case number 21-1263.

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Mr. Higgins for the respondents in case number 21-1263.

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Mr. Mehar for the interveners for the respondents in case number 21-1263.

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Morning, Council.

[00:00:49] Speaker 04:
Mr. Davis, please proceed when you're ready.

[00:00:51] Speaker 11:
Bill Davis from the State of Texas, the Texas Commission on Environmental Quality,

[00:00:55] Speaker 11:
I'm hoping to reserve three minutes for rebuttal.

[00:00:59] Speaker 11:
We present two challenges to the final.

[00:01:02] Speaker 11:
First is that it's impermissibly retroactive in that it set an attainment date or deadline for El Paso County that passed before that county was first designated as a non-attainment area.

[00:01:15] Speaker 11:
And the second is that EPA called its action a modification.

[00:01:19] Speaker 11:
But under the text of the statute and this court's decision in Clean Wisconsin, the remand instructions there are properly read, it can only be a redesignation.

[00:01:29] Speaker 11:
And under Section 7511B1, a redesignation opens a prospective three-year window for marginal non-attainment area to reach attainment.

[00:01:42] Speaker 04:
So I'll start, if I could, with the retroactivity point.

[00:01:45] Speaker 04:
And just- Can I just ask you a question?

[00:01:49] Speaker 04:
which relates to where you're going to start.

[00:01:51] Speaker 04:
It doesn't matter.

[00:01:52] Speaker 04:
Suppose that we think there's potentially something to either of those arguments.

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Is there some natural order by which we would consider them because one of them subsumes the other or one of them gives different belief than the other?

[00:02:05] Speaker 04:
Because as I roughly understand it, the consequence of concluding is you urge that what happened on remand was a redesignation rather than a modification.

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is that then there would be three years hence to attain, which is typically what happens with the re-designation.

[00:02:25] Speaker 04:
The consequence of retroactivity would roughly be the same thing because your point is that you didn't get the three years if you put the attainment deadline before.

[00:02:34] Speaker 04:
Is there a natural order to this?

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Is there a reason that we would consider one before the other?

[00:02:39] Speaker 11:
The court can take them in either order.

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And regardless of whether it agrees with one or both,

[00:02:46] Speaker 11:
there should be a redesignation that allows for that three-year window.

[00:02:51] Speaker 04:
So from your perspective, you don't care which way we go.

[00:02:54] Speaker 04:
That's right.

[00:02:55] Speaker 11:
If the court prefers me to start with one place or another, otherwise I'll start with retroactivity and just say that EPA doesn't argue that it has power under either the APA or the Clean Air Act to regulate retroactivity in this context.

[00:03:12] Speaker 11:
It also doesn't say that the challenge part of the rule operates on it, respectively.

[00:03:18] Speaker 11:
Instead, it says that the attainment date that we're focused on is essentially inconsequential, and that it regulated reasonably given the circumstances.

[00:03:29] Speaker 11:
But that attainment date is not inconsequential.

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It's a core feature of the act's cooperative federalism, under which, as this court has recognized, EPA sets the standards

[00:03:42] Speaker 11:
and then states have an opportunity to meet those standards.

[00:03:45] Speaker 11:
And here, Congress has said, basically three years to try to attain.

[00:03:50] Speaker 04:
So can I ask this question, just to crystallize in my own mind at least, where this retroactivity issue rises or falls.

[00:03:58] Speaker 04:
Suppose tomorrow EPA decides that even though the attainment date is the August 2021 one, and that the announcement of that date was after that date had already passed,

[00:04:13] Speaker 04:
Um, we haven't determined yet whether you were in attainment at that date.

[00:04:17] Speaker 04:
And suppose that the EPA decides tomorrow actually you're in attainment.

[00:04:22] Speaker 04:
We don't know yet that they won't do that.

[00:04:24] Speaker 04:
Um, I think we can have some predictions and I don't know the empirical data on this, but their point, at least part of their point is we don't know yet.

[00:04:31] Speaker 04:
So they decide tomorrow you're in attainment.

[00:04:34] Speaker 04:
Is there still a retroactivity issue before us?

[00:04:37] Speaker 04:
Is there,

[00:04:39] Speaker 04:
What's the injury that you would have suffered?

[00:04:41] Speaker 04:
Sure.

[00:04:41] Speaker 11:
So the injury that we're talking about is that elimination of, it's a procedural right that we have the three years.

[00:04:49] Speaker 11:
And so EPA has said, well, what you're talking about, reclassification, if we make that determination, that hasn't happened yet.

[00:04:56] Speaker 11:
They're right about that.

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What we're saying is that

[00:05:00] Speaker 11:
Congress gave the states that three-year period.

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And we can see, and we cited some examples on page seven of our reply brief, that states have taken advantage of that three-year period and met that attainment goal within three years.

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And so it's not an empty right.

[00:05:18] Speaker 04:
And in fact, in Whitman versus American trucking.

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So even if EPA decided tomorrow, even if they decided today, even if they now say an argument,

[00:05:27] Speaker 04:
actually just been a determination that you are an attainment as of the attainment deadline that passed.

[00:05:35] Speaker 04:
We should still rule in your favor and vacate the rule on retroactive agreements.

[00:05:39] Speaker 11:
In our view, yes, because the rule is invalid on that basis or because EPA tried to create a new modification power that the statute doesn't... Suppose they didn't understand the order itself.

[00:05:52] Speaker 04:
Suppose they said the attainment deadline is passed

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Either way, you were on attainment as of the attainment deadline.

[00:06:00] Speaker 11:
So in that hypothetical, I'm not sure we would have the same injury to complain about.

[00:06:07] Speaker 11:
Would you have any injury?

[00:06:09] Speaker 11:
If the area were not designated non-attainment and basically it would be the effect of the remand was to essentially confirm that El Paso was and continued to be an attainment area,

[00:06:25] Speaker 04:
I don't know that we would be here.

[00:06:27] Speaker 04:
I know you wouldn't.

[00:06:28] Speaker 04:
You may not be here because you've suffered no harm, but I'm just trying to understand, would there be a violation of a retroactivity principle?

[00:06:36] Speaker 11:
It's an interesting hypothetical that I haven't fully thought through.

[00:06:40] Speaker 04:
I would say though, on this record... Let me give you another one that's maybe... I don't know if you would have thought through this one, but I just want to see if there's immediately, at least to your mind, there would be a difference.

[00:06:52] Speaker 04:
EPA in the future, suppose there's a situation in which EPA proceeds as you think they normally would, which is to give the three years to come into attainment after announcement.

[00:07:04] Speaker 04:
So they give the three years, at the end of the three years plus the six months that they have to actually make the classification, they say you are in attainment.

[00:07:14] Speaker 04:
Now, just to let you know, actually we measured attainment not by reference to the date,

[00:07:20] Speaker 04:
that was three years ago.

[00:07:21] Speaker 04:
We measured attainment by reference to a date that was six years ago.

[00:07:25] Speaker 04:
You didn't know that.

[00:07:26] Speaker 04:
You had no reason to know that at all because you only knew about the three-year date.

[00:07:29] Speaker 04:
You didn't know about what happened six years ago.

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But that's how we measured attainment.

[00:07:34] Speaker 04:
But you're on attainment.

[00:07:35] Speaker 04:
Would there be a retro... That would be equally retroactive.

[00:07:38] Speaker 04:
Would there be a retroactivity claim?

[00:07:40] Speaker 11:
I think EBA would have a much stronger argument because the retroactivity analysis is not a black and white proposition as the court has recognized

[00:07:50] Speaker 11:
If the party in that position could show no harm from it, I think it would be a harder argument to win a retroactivity case.

[00:07:59] Speaker 04:
Then let me ask one last one, and then I know there's going to be other people who have questions, but I'll just continue this stream of consciousness riff for a second.

[00:08:07] Speaker 04:
Suppose then, what's wrong then with saying if it's possible that in these kinds of situations there wouldn't be a retroactivity challenge that would win,

[00:08:17] Speaker 04:
then what's wrong with, in this case, just waiting to see what EPA does?

[00:08:23] Speaker 04:
What cost, what injury are you suffering in the interim while EPA waits to decide?

[00:08:31] Speaker 04:
And you may well have one, I just want to know what it is.

[00:08:33] Speaker 11:
Right, so it's the procedural injury of not being able to do anything.

[00:08:37] Speaker 11:
You know, before this rule came down, August 3rd of 2021 was just any other Tuesday.

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And then after this role, it's all of a sudden the date by which we would have been judged.

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And so that's just not how the act operates.

[00:08:53] Speaker 11:
And if we waited until there's some further action against Texas, I would expect EPA to argue forfeiture as to this retroactivity argument.

[00:09:02] Speaker 04:
Well, suppose we don't allow that.

[00:09:03] Speaker 04:
We're just going to hold the retroactivity challenge.

[00:09:06] Speaker 04:
We're going to insulate you from being procedurally barred from getting a retroactivity win at that point.

[00:09:11] Speaker 04:
I don't know exactly how we'll do that, but let's just suppose we will.

[00:09:14] Speaker 04:
What's wrong with that and waiting to see what EPA does?

[00:09:19] Speaker 04:
If EPA says you're in non-attainment, then you've got your retroactivity argument.

[00:09:24] Speaker 04:
If EPA says you're in attainment, because you didn't have the three years to come into attainment.

[00:09:28] Speaker 04:
If EPA says you're in attainment, so no harm, no foul, then even you've indicated that you're retroactive, you wouldn't even bring the retroactive challenge.

[00:09:38] Speaker 04:
in that instance.

[00:09:39] Speaker 04:
What's wrong with that?

[00:09:40] Speaker 11:
Well, I suppose that the court is saying that we can bring the same challenge later.

[00:09:43] Speaker 04:
Or we just hold this present challenge until EPA makes a decision on whether you are anything.

[00:09:52] Speaker 11:
I would say that the court should still rule in our favor here, because again, going back to Whitman, the Supreme Court identified Section 75, 11A1, which is the three-year window is the backbone of subpart two of this part of the Clean Air Act.

[00:10:06] Speaker 11:
And allowing EPA to do this retroactive rulemaking just cuts the states out of that congressionally guaranteed window of time to attain.

[00:10:17] Speaker 11:
But if I could move to the modification.

[00:10:21] Speaker 05:
Let me just, before you do, what's puzzling to me about this is I think the order is clearly retro.

[00:10:35] Speaker 05:
in the sense that it creates a new exposure arising from past events, exposure.

[00:10:47] Speaker 05:
But we don't know whether that caused any harm.

[00:10:52] Speaker 05:
I mean, you either did or didn't meet the attainment, meet attainment as of the attainment date.

[00:10:59] Speaker 05:
That's just a fact about the past.

[00:11:03] Speaker 05:
There's no agency discretion.

[00:11:04] Speaker 05:
They have to decide that.

[00:11:06] Speaker 05:
And there's a formula by which they decide that.

[00:11:12] Speaker 05:
How do we, I don't know of any other retroactivity case.

[00:11:17] Speaker 05:
So if you focus on, you know, will the exposure lead to a more concrete, it's a loaded word for standing, but a further injury

[00:11:31] Speaker 05:
Well, we don't know if the question is just, does the order operate to change the past consequences, past events?

[00:11:44] Speaker 05:
The answer is yes.

[00:11:46] Speaker 11:
Exactly.

[00:11:47] Speaker 11:
And that's the test for impermissible retroactivity.

[00:11:51] Speaker 11:
And I think one thing the state could have done differently is submit, as Texas has done, a 179-D demonstration earlier

[00:12:00] Speaker 11:
so that EPA would have had longer to consider that before the attainment date was coming out, or in this case, retroactive.

[00:12:09] Speaker 11:
But again, I think there are certainly states that have met that attainment deadline.

[00:12:15] Speaker 11:
And the way that EPA has approached this here just forecloses that result.

[00:12:20] Speaker 04:
But you still might.

[00:12:21] Speaker 04:
I mean, that's the tricky thing about this is you still might.

[00:12:23] Speaker 04:
And I'm not sure that just the language legal consequences doesn't necessarily lease in my own mind.

[00:12:29] Speaker 04:
get a party all the way home on retroactivity, because in most situations in which there's legal consequences, there will have been some kind of detrimental reliance.

[00:12:36] Speaker 04:
There will have been something that the party can point to you to say, this is how we're harmed.

[00:12:41] Speaker 04:
And I know that there's also an injury component to standing.

[00:12:43] Speaker 04:
I get that.

[00:12:43] Speaker 04:
But I'm saying just in terms of retroactivity itself.

[00:12:46] Speaker 04:
And I think there's a forceful submission on your part that if

[00:12:54] Speaker 04:
EPA deems you to have been a non-attainment and you didn't have the time period to come into attainment because deadline passed before you even knew that this was a possibility.

[00:13:04] Speaker 04:
That seems like a retroactivity question, a serious one.

[00:13:08] Speaker 04:
But if it turns out you actually weren't in attainment, then it's not clear to me.

[00:13:17] Speaker 04:
And as Judge Katz points out, we just don't know the answer to that right now.

[00:13:21] Speaker 04:
The fact is baked.

[00:13:23] Speaker 04:
But we just don't know which way that cuts yet until EPA says something about it.

[00:13:29] Speaker 11:
I think all of that is correct.

[00:13:31] Speaker 11:
But again, in our view, we have a procedural injury.

[00:13:33] Speaker 11:
And maybe just to avoid repeating myself on that point, if I could offer maybe an analogy that could be helpful.

[00:13:40] Speaker 11:
Let's say that there's an employer who tells an underperforming employee on one day, you're underperform.

[00:13:47] Speaker 11:
We're going to put you on a performance improvement plan.

[00:13:51] Speaker 11:
And there are two components to that plan.

[00:13:53] Speaker 11:
One is four weeks from now, we're going to re-assess your performance.

[00:14:00] Speaker 11:
And you can shape up.

[00:14:02] Speaker 11:
The second one is you have to fill out this form telling us what you're doing, what you plan to do.

[00:14:08] Speaker 11:
But in practice, the employer says, well, actually, you know what?

[00:14:11] Speaker 11:
In that first part, we're going to evaluate your performance as of four weeks ago.

[00:14:16] Speaker 11:
But on the form, take some more time.

[00:14:19] Speaker 11:
You can get that in later.

[00:14:21] Speaker 11:
I don't think anyone would say, well, that's fair, because for one, what's this guy going to do?

[00:14:28] Speaker 11:
He's not going to change anything.

[00:14:29] Speaker 11:
Whether we look at his performance four weeks ago or four weeks later, it's going to be the same result.

[00:14:36] Speaker 11:
And we gave him some more time for the form.

[00:14:38] Speaker 11:
I don't think anyone would say that's an OK way to train an employee.

[00:14:42] Speaker 11:
And here, we have, again, Congress saying that there is a prospective analogous provision to that, part one,

[00:14:51] Speaker 11:
forms improvement plan in my hypothetical.

[00:14:57] Speaker 11:
If I could, though, unless there are further questions on retroactivity, I'll move to modification.

[00:15:02] Speaker 11:
Because as Your Honor noted at the outset, it's an independent way for us to win this case.

[00:15:07] Speaker 11:
And I think it's a clear example of EPA doing something that the statute doesn't allow under the cover of this court's remand without bakers.

[00:15:18] Speaker 11:
And I think this may be the most significant part of this case, because remand without vacator is controversial enough already.

[00:15:27] Speaker 11:
But if we take it beyond where it is now to a point where it's allowing agencies to do something that a statute doesn't allow, I think that's just a different level.

[00:15:40] Speaker 04:
And if there was vacator, would you think that what happened on remand would be a redesignation?

[00:15:46] Speaker 11:
If the rule had been vacated in Wisconsin, there would have been three years because EPA would have had to designate here, right?

[00:15:57] Speaker 11:
And so because there was a remand without vacancy, it doesn't give EPA additional rights.

[00:16:02] Speaker 11:
It just moves the analysis from 7511A1 to 7511B1.

[00:16:07] Speaker 04:
I guess to me it seems it would be a little surprising if the panel that remanded

[00:16:13] Speaker 04:
thought that what they were remanding for is a re-designation.

[00:16:17] Speaker 04:
Because a re-designation could happen anytime, anyway.

[00:16:20] Speaker 11:
Well, the court used that language.

[00:16:21] Speaker 11:
So the court used the language, revise the designations.

[00:16:26] Speaker 11:
Right, not re-designation.

[00:16:27] Speaker 11:
Well, no, but that language tracks re-designation.

[00:16:31] Speaker 11:
So in 7407D3, Congress used revise to... But why remand?

[00:16:36] Speaker 04:
If they really thought re-designation, that can always happen.

[00:16:42] Speaker 11:
Well, sure.

[00:16:43] Speaker 11:
I mean, what the court said in Wisconsin was there's a realistic possibility that EPA is able to substantiate these designations on remand.

[00:16:52] Speaker 11:
And so I don't think he was suggesting any particular result.

[00:16:58] Speaker 11:
But the only path open to EPA was a redesignation.

[00:17:03] Speaker 11:
Modification is the province of 7407,

[00:17:08] Speaker 11:
That applies when the agency or the administrator is modifying the governor's initial designation.

[00:17:19] Speaker 11:
But that has to happen.

[00:17:22] Speaker 05:
If we had vacated, why wouldn't the task on remand clearly have been a modification in the sense that the statutory sequence is, as I understand it,

[00:17:38] Speaker 05:
the governor makes a proposed designation, EPA modifies or not, state action, federal agency action, and then there's judicial review.

[00:17:52] Speaker 05:
We take second of those off the books.

[00:17:55] Speaker 05:
The only thing that's there is the governor's proposal and EPA is acting on that.

[00:18:01] Speaker 05:
And that is either acceptance or modification.

[00:18:05] Speaker 11:
Right, so it's either obligation

[00:18:08] Speaker 11:
or modification and promulgation as the governor's designation.

[00:18:14] Speaker 11:
Right, so either way that's going to open for a marginal area a three-year window for attainment.

[00:18:22] Speaker 05:
This is a little bit of an odd case.

[00:18:25] Speaker 05:
We didn't vacate, but we did say that the modification under review was not

[00:18:36] Speaker 05:
legally, not yet legally supported.

[00:18:41] Speaker 04:
Well, that's what EPA said.

[00:18:46] Speaker 04:
We understood them to have been conceding that.

[00:18:49] Speaker 04:
That was the basis for the review.

[00:18:50] Speaker 04:
It is unusual.

[00:18:51] Speaker 11:
I think the court pointed out that usually the agency would come up here and say, this is what's wrong with it, and the agency wouldn't even say that, which is why the court said there's a realistic chance they're going to do the same thing on demand.

[00:19:06] Speaker 05:
It makes it look more like they're finishing up the work they had done in the past.

[00:19:17] Speaker 05:
They did a chunk of work in the past, that was fine, and now they're changing.

[00:19:23] Speaker 11:
But we have to be guided by the text of the study, right?

[00:19:27] Speaker 11:
I don't think the court would say that you can

[00:19:30] Speaker 11:
Order EPA to do something outside of the text.

[00:19:32] Speaker 11:
If I can point to section 7407, D1B4.

[00:19:37] Speaker 11:
That says that D1Bb little Roman 4.

[00:19:46] Speaker 11:
That's a short provision in a sea of long provisions.

[00:19:49] Speaker 11:
And it says, when an area is designated, that designation shall remain in effect

[00:19:59] Speaker 11:
until it's re-designated.

[00:20:01] Speaker 11:
So when the court remands a designation without vacating it, that designation remains in effect until it's re-designated.

[00:20:09] Speaker 04:
So you don't even think that if the original panel had foresight to see through all this and understand the sequence of events and want to actually dictate what was going to happen, wouldn't the original panel have said, we've got a petition for a vacator,

[00:20:25] Speaker 04:
There's various collateral reasons for which we're not going to go to that extent to vacate.

[00:20:29] Speaker 04:
But we are remanding because EPA has acknowledged to us that it's showing as insufficient.

[00:20:33] Speaker 04:
At least that's what we're construing EPA's motion for remand to be.

[00:20:36] Speaker 04:
But we want to make clear that when we're remanding, we're not saying there's going to be a redesignation if EPA switches and renders it non-attainment.

[00:20:45] Speaker 04:
That's going to be a modification.

[00:20:47] Speaker 04:
Or that's going to be the original final designation.

[00:20:49] Speaker 04:
It's just going to be one that's dated later.

[00:20:54] Speaker 11:
I think that would be an extraordinary thing for the court to do, because it would be saying, EPA, don't worry about what the statute says.

[00:21:01] Speaker 11:
Just go back and do this quickly outside of the modification.

[00:21:05] Speaker 04:
So aren't we always outside the land of the statute in some of these situations?

[00:21:08] Speaker 04:
Because the statute also says that the agency has to accomplish the

[00:21:15] Speaker 04:
I'm going to get my terminology mixed up, but they have to determine whether the area is an attainment or non-attainment within two years and then potentially one more year of the adoption of the NAICS.

[00:21:26] Speaker 04:
And sometimes when, if you vacate and remand, it could be that that happens well after three years.

[00:21:31] Speaker 04:
But we just ordinarily, we just assume that a court can do that because it's a part of what happens with judicial review.

[00:21:38] Speaker 11:
Well, you're talking about a shall for this.

[00:21:43] Speaker 11:
the EPA always, or not always, but often misses deadlines.

[00:21:48] Speaker 11:
And it gets faced with citizen suits.

[00:21:50] Speaker 11:
And the citizen suit says, shall I get to do it now?

[00:21:53] Speaker 11:
I'm not talking about that with modification power.

[00:21:55] Speaker 11:
It's a may provision, right?

[00:21:57] Speaker 11:
The administrator may modify a governor's designation within a certain time.

[00:22:03] Speaker 11:
And so that's off the table at this point.

[00:22:06] Speaker 11:
And I think one of the cases that EPA relied upon here is wild earth guardians.

[00:22:13] Speaker 11:
And I think that's an interesting case for this case in a few ways.

[00:22:19] Speaker 11:
One of the interesting parts of that case here, though, is that if the court had accepted the petitioner's view of what should have happened, it noted that that would have nullified the effect of another provision of the act, Section 7513.

[00:22:37] Speaker 11:
And that was a reason to say, well, we're just stuck.

[00:22:41] Speaker 11:
We can't do anything that's going to fully comport with what Congress told EPA to do here.

[00:22:46] Speaker 11:
We don't have that situation here.

[00:22:48] Speaker 11:
EPA has not denied that it has the power to create side-by-side non-attainment areas and give the state of Texas its three-year, congressionally provided period.

[00:23:02] Speaker 11:
It just says, well, it's just not a good policy to do it that way.

[00:23:05] Speaker 04:
Can I ask this question?

[00:23:06] Speaker 04:
After the remand, if EPA had said attainment again, but they would have to supply more information to bolster that because we raised some questions about the explanation in the first instance, right?

[00:23:23] Speaker 04:
And so the basis for the remand was basically, we take you at your word that your submission was insufficient, your record was insufficient, and we're sending it back so that you can do some more and bolster that.

[00:23:35] Speaker 04:
So they do that and bolster it, and then they say, and we still find attainment.

[00:23:41] Speaker 04:
That would be the new designation, right?

[00:23:46] Speaker 11:
I guess so.

[00:23:47] Speaker 11:
I think I might push back a little bit against that description of it, because as I understand it in Wisconsin, it was EPA saying, we're just not going to defend this

[00:24:00] Speaker 11:
as it is.

[00:24:00] Speaker 11:
It wasn't the court saying, this is deficient, go back and show it works some more.

[00:24:04] Speaker 04:
But I thought what we said was we're sending it back because we construe EPA's request for sending it or taking it back to be an admission that we didn't do enough.

[00:24:14] Speaker 04:
OK, yes.

[00:24:16] Speaker 04:
I thought we said basically that.

[00:24:17] Speaker 11:
I think that is correct.

[00:24:20] Speaker 11:
And so I'm sorry, I misunderstood the direction of your question.

[00:24:24] Speaker 04:
Yeah.

[00:24:25] Speaker 04:
And so then what EPA does is they take it back and they say, okay, the court has understood us to have not had done enough.

[00:24:30] Speaker 04:
We're going to do more, but we still reach the conclusion of attainment.

[00:24:33] Speaker 04:
So they come forward with a new, they have to do a new explanation.

[00:24:37] Speaker 04:
They come forward with a new explanation.

[00:24:39] Speaker 04:
And then that's then the relevant event for purposes of judicial review, not what they'd already done, even though they're re-ratifying an attainment, they're ratifying an attainment with new explanations.

[00:24:49] Speaker 04:
So that's the new event.

[00:24:50] Speaker 11:
Yeah.

[00:24:50] Speaker 11:
So in that certain sense, I,

[00:24:52] Speaker 11:
I think the original designation remains, and there's more support for that same designation.

[00:25:01] Speaker 04:
But that more support, the date of the designation would be the new one, not the old one.

[00:25:08] Speaker 11:
I would think it would actually be the old one, because the EPA would then just be supporting what it initially did.

[00:25:13] Speaker 04:
Then how would there be judicial review of it, because the limitations period would have passed?

[00:25:19] Speaker 11:
I would think that it would be continuing judicial review by virtue of remand.

[00:25:23] Speaker 11:
I guess I'm not certain.

[00:25:25] Speaker 04:
I don't think we retain jurisdiction when we remand in this situation.

[00:25:28] Speaker 04:
So there has to be a petition for it.

[00:25:30] Speaker 11:
If what EPA did was come out with a new rule that under the Clean Air Act could be subject to a petition for review, then yes, that would be... Wouldn't they have to?

[00:25:40] Speaker 04:
Because if they wanted to bolster their explanation, they'd come forward with a new rule that bolsters the explanation.

[00:25:46] Speaker 04:
I suppose.

[00:25:47] Speaker 04:
And then what I'm getting at is, if that's true, they're doing something new, but we still, under the way you're thinking of it, construe that as just re-designating as attainment.

[00:26:00] Speaker 04:
Not re-designating, designating again as attainment.

[00:26:05] Speaker 04:
And why doesn't that also follow through to changing it to non-attainment?

[00:26:09] Speaker 04:
That it's still doing the same thing we did before, we're just doing that same thing again now.

[00:26:12] Speaker 11:
OK, so maybe I understand this.

[00:26:15] Speaker 11:
In your hypothetical, there's no attainment date that's created by virtue of the attainment designation.

[00:26:23] Speaker 11:
So that clock doesn't start running.

[00:26:26] Speaker 11:
But if EPA comes back and does a redesignation or initial designation, however it styles it, from that date, there is an attainment date under section 7511, day one.

[00:26:41] Speaker 04:
And that's what we're saying the states are entitled to.

[00:26:46] Speaker 04:
I was trying to draw a distinction between the attainment deadline and whether it's a re-designation, because I think it could be a necessary consequence of it being re-designation that you get the extra three years, but could it also be that you get the extra three years even if it's not a re-designation and it's just a redoing of the original designation?

[00:27:04] Speaker 11:
Well, if it's a redoing of the initial designation, there wouldn't be that period in play because it was an attainment designation.

[00:27:14] Speaker 04:
Make sure there's no further questions at this time.

[00:27:17] Speaker 04:
Thank you, Mr. Davis, Miss Saint Romain.

[00:27:33] Speaker 03:
Good morning, Your Honors, and may it please the Court.

[00:27:35] Speaker 03:
My name is Alex Saint Romain, and I'm here today on behalf of EPA.

[00:27:39] Speaker 03:
I'm joined at council's table today by my colleague Elliot Higgins and Seth Buxbaum of EPA.

[00:27:44] Speaker 03:
For this court's order, I'll be using half the United States time to respond to Texas's arguments regarding El Paso's designation, and I'll be sharing two minutes of my time with David Bach, counsel for intervener supporting the El Paso designation.

[00:28:00] Speaker 03:
In Cleveland, Wisconsin, this court remanded 11 designations to EPA for reconsideration, directed EPA to complete the remands as expeditiously as practicable.

[00:28:11] Speaker 03:
On remand, EPA reconsidered its original designation for El Paso and determined that El Paso contributed to Doña Ana, New Mexico's non-attainment of the 2015 OZONATs.

[00:28:24] Speaker 03:
Given that Doña Ana was already a properly designated non-attainment area with statutorily imposed effective entertainment dates, EPA determined that the best path forward was to revise the boundary of the pre-existing Doña Ana non-attainment area

[00:28:40] Speaker 03:
to include El Paso.

[00:28:43] Speaker 03:
In doing so, EPA treated El Paso consistently with its designations of all remanded areas and the way EPA generally designates contributing areas.

[00:28:54] Speaker 05:
The agency action that designated El Paso as non-attainment happened in November 2020.

[00:29:04] Speaker 03:
That's correct, Your Honor.

[00:29:07] Speaker 05:
And the status quo before that

[00:29:10] Speaker 05:
It wasn't even that there was nothing in place.

[00:29:13] Speaker 05:
It was that there was precisely the opposite designation in place.

[00:29:18] Speaker 03:
That's correct because this court should not date.

[00:29:20] Speaker 05:
So the agency action that created non-attainment for El Paso backdated their attainment date by three years.

[00:29:34] Speaker 03:
If the attainment date is August 3rd, 2021, and the rule came out in November of 2021, but taking your point, I think the big picture point I'd like to make is that the past attainment date has not rendered the rule retroactive because there are no duties imposed upon Texas associated with the attainment date.

[00:29:59] Speaker 05:
There will be massive duties imposed if it turns out that they missed, they did not attain as of the past attainment date.

[00:30:10] Speaker 05:
And your only response to that is, well, you haven't made that decision yet.

[00:30:16] Speaker 05:
That's not a discretionary decision.

[00:30:18] Speaker 05:
You're obligated to adjudicate

[00:30:22] Speaker 05:
a past fact about the world.

[00:30:24] Speaker 05:
They either retained or they didn't.

[00:30:26] Speaker 05:
And if they didn't attain, they have lots of regulatory burdens imposed on them.

[00:30:31] Speaker 03:
That's true, Your Honor.

[00:30:32] Speaker 03:
I think I'd like to make two points in response to that.

[00:30:34] Speaker 03:
The first is that it is reclassification.

[00:30:39] Speaker 03:
We can see that reclassification has consequences.

[00:30:43] Speaker 03:
But reclassification itself is not a direct consequence of a marginal non-payment designation, which is what we're talking about in this rule.

[00:30:51] Speaker 03:
The only legal consequence to impose on Texas of a marginal non-attainment designation is that Texas must submit a SIP provision.

[00:31:01] Speaker 03:
And that SIP provision must do two things.

[00:31:04] Speaker 03:
It must inventory current emissions, and it must impose new source review requirements, which are just meant to prevent further deterioration of air quality.

[00:31:14] Speaker 03:
So there's nothing, there's no measure that Texas would have been required to take between the effective date and the attainment date that would have made a difference in whether the non-attainment area was in attainment as of the attainment date.

[00:31:28] Speaker 05:
But the statute has a pretty precise calendar to it, right?

[00:31:34] Speaker 05:
And it's, in a sense, there's a doomsday machine that's turned on when there's a,

[00:31:42] Speaker 05:
Non marginal non attainment designation.

[00:31:46] Speaker 05:
A couple of things happen.

[00:31:47] Speaker 05:
You get the attainment date.

[00:31:50] Speaker 05:
Three years out.

[00:31:51] Speaker 05:
And then you you attain or not.

[00:31:54] Speaker 05:
And if you don't, there there are consequences.

[00:31:59] Speaker 03:
That is true, Your Honor.

[00:32:01] Speaker 03:
I think as an initial matter, it is really important to note here that.

[00:32:08] Speaker 03:
The clean air does not contemplate this exact situation where

[00:32:13] Speaker 03:
original destination is remanded and on remand EPA determines that that original designation is erroneous and EPA has been in the situation where it's trying to figure out the best thing to do with respect to El Paso and the other 10 areas that were remanded and given the fact that there already is a valid non-attainment area in place.

[00:32:34] Speaker 03:
So I think that that is an initial starting point, but I think also what's

[00:32:42] Speaker 03:
An important point to make and answer your question is looking at broadly how non-attainment areas for ozone are designated.

[00:32:52] Speaker 03:
So ozone, for other maps, EPA will designate an area as attainment or non-attainment.

[00:33:01] Speaker 03:
For ozone, the Clean Air Act goes further and designates areas into specific classifications based on their level of non-attainment.

[00:33:10] Speaker 05:
It's five or six different levels.

[00:33:12] Speaker 03:
Right.

[00:33:12] Speaker 03:
The marginal non-attainment designation, those are areas that are the closest to attainment.

[00:33:18] Speaker 03:
And really, when you look at the requirements imposed upon states with marginal non-attainment areas,

[00:33:27] Speaker 03:
The point of the marginal non-attainment area is really a holding pattern in a lot of ways.

[00:33:32] Speaker 03:
It's meant to ensure there's not further deterioration of air quality, but it's not meant to give the state, or it does not impose requirements that the state take to make air quality better.

[00:33:47] Speaker 05:
Maybe not from the status of having been designated marginal non-attainment,

[00:33:55] Speaker 05:
But there are consequences if they miss the attainment, if they don't achieve attainment by the attainment date.

[00:34:02] Speaker 05:
They get downgraded to a level, I forget what it, moderate or something, which does trigger a lot of burdens, regulatory burdens.

[00:34:12] Speaker 03:
Certainly, but that has not occurred yet, right?

[00:34:15] Speaker 03:
I think the point that I was trying to make... But it could.

[00:34:18] Speaker 03:
It could, but only after one EPA makes a determination that the state is not in payment as of the attainment date, which has not yet occurred.

[00:34:27] Speaker 05:
But it's not discretionary, right?

[00:34:29] Speaker 05:
You can't just say, oh, this might be unfair.

[00:34:34] Speaker 05:
So we're just not going to make that determination.

[00:34:38] Speaker 03:
It is not discretionary, but it is a fine EPA has to make.

[00:34:43] Speaker 03:
But also, although it's not discretionary, you're intervening

[00:34:47] Speaker 03:
There are intervening events that could result in the area not being reclassified, even if it is a non-attainment.

[00:34:53] Speaker 03:
And one of those is this 179B demonstration.

[00:34:56] Speaker 04:
Right, so put that to one side.

[00:34:58] Speaker 04:
I know that it's a complicating feature here, the 179B demonstration.

[00:35:01] Speaker 04:
And we can get into whether there's some collateral thing that nobody saw on the horizon that then comes in and says it doesn't matter because you're still in attainment.

[00:35:11] Speaker 04:
It has to be the case that an area is worse off if they're deemed to be

[00:35:18] Speaker 04:
in marginal non-attainment than if they're deemed to be in attainment.

[00:35:22] Speaker 03:
Yeah, so an area is worse off, I'm sorry, or a state.

[00:35:27] Speaker 04:
Well, a state who has an area that's deemed to be, is that not true?

[00:35:32] Speaker 03:
Worse off in that there are requirements imposed upon the state, and those requirements are that the state submit a CIP revision, and the CIP revision, again, inventory's current mission.

[00:35:43] Speaker 04:
Right, but if they're in attainment, they don't have to do the CIP revision.

[00:35:47] Speaker 03:
they don't have to do a supervision if they're in attainment.

[00:35:51] Speaker 03:
And that I think is important.

[00:35:53] Speaker 04:
So then I guess where I'm going is if the state, if the area is deemed to be a non-attainment as opposed to deemed to be an attainment as of the past attainment deadline, then requirements kick in that they wouldn't have otherwise faced.

[00:36:12] Speaker 04:
And if the attainment deadline had been put three years in the future,

[00:36:16] Speaker 04:
they might have been able to avoid ever having those requirements imposed on them because they could come into attainment by the attainment.

[00:36:26] Speaker 03:
So I just, I'm not.

[00:36:29] Speaker 03:
So just backing up to make sure I'm not exactly sure I am understanding, but I think so.

[00:36:34] Speaker 03:
The first one I want to make is that, um, yes, there are consequences.

[00:36:39] Speaker 03:
of a state being designated as a marginal non-attainment area.

[00:36:42] Speaker 03:
Those consequences are SIP revision, and EPA gave Texas additional time to submit its SIP revision.

[00:36:48] Speaker 03:
Now in the world, I think this is what your question is getting at, is if

[00:36:58] Speaker 03:
EPA were to reclassify the Dona Ana non-attainment area as moderate, Texas wouldn't have had an opportunity to try to attain by the attainment date.

[00:37:10] Speaker 03:
I think that is not a primary retroactivity issue.

[00:37:13] Speaker 03:
I think that is a secondary retroactivity issue, and that is because the Cleaner Act

[00:37:17] Speaker 03:
would not have required Texas to take any action between the effective date and the attainment date that would impact whether the state is an attainment as of the attainment date.

[00:37:29] Speaker 03:
And so, you know, Texas's argument that it could have imposed measures really boils down to a contention that its expectations were upset.

[00:37:39] Speaker 05:
It wouldn't have required actions during that three-year runway, but there would

[00:37:48] Speaker 05:
been consequences if Texas didn't meet the attainment date, right?

[00:37:55] Speaker 05:
You get downgraded to moderate non-attainment.

[00:37:59] Speaker 03:
Certainly, Your Honor, but that is not in and of itself a direct consequence of the marginal non-attainment designation because it does not happen

[00:38:10] Speaker 03:
a matter as a matter of course, when an area is designated as a marginal non-attainment area, it only happens reclassification.

[00:38:18] Speaker 05:
If you don't, if you don't do whatever you have to do to attain.

[00:38:22] Speaker 03:
Not quite, your honor, because, well, if there aren't any steps.

[00:38:28] Speaker 05:
Putting aside these quirky defenses about foreign pollution or extraordinary events.

[00:38:34] Speaker 03:
If the state had not

[00:38:37] Speaker 03:
So if during this 30 period, the state had not taken any voluntary actions to attain, but I think the point that I'm trying to make is that a marginal non-attainment designation does not require the state to have taken any action.

[00:38:52] Speaker 05:
Let me try it this way.

[00:38:54] Speaker 05:
When you're designated marginal non-attainment, two things happen.

[00:39:00] Speaker 05:
One is

[00:39:01] Speaker 05:
what you're calling a requirement, which is you have to submit a SIP, okay?

[00:39:05] Speaker 05:
And you took care of that issue by extending the debt.

[00:39:09] Speaker 05:
But a second thing that happens, you're saying it's not a requirement, but I'll call it an exposure, which is as a result of that designation, if you don't clean things up within three years,

[00:39:27] Speaker 05:
a bunch of other things will happen, right?

[00:39:30] Speaker 05:
And it may or may not, but it's a present exposure.

[00:39:33] Speaker 05:
It's baked into the legal situation, right?

[00:39:36] Speaker 05:
There it is.

[00:39:39] Speaker 03:
Yes.

[00:39:40] Speaker 03:
And I think that that really gets to, so generally agencies change rules all the time that impact a party's

[00:39:53] Speaker 03:
past conduct in that maybe the parties would have acted differently if the law had been differently in the past.

[00:40:00] Speaker 03:
And I actually think this situation is akin to the Treasure State Resource Industrial Association case.

[00:40:07] Speaker 03:
In my case, this court upheld EPA's practice, detonating an area based on pollution data that was collected before EPA made the NACs more stringent, and thus before the industry groups knew that they would have to abide

[00:40:22] Speaker 03:
these more stringent amounts.

[00:40:23] Speaker 03:
And I think the arguments the petitioners are making here are very similar to the types of arguments the petitioners made there, which is that here Texas could have been able to act differently if EPA properly designated the El Paso as part of the Dona Ana non-attainment area in the first place.

[00:40:43] Speaker 03:
The mere fact that Texas could have acted differently does not render this rule retroactive because nothing about the marginal non-attainment designation itself required Texas to take any action.

[00:40:58] Speaker 05:
I may be misremembering.

[00:41:00] Speaker 05:
I may have misread it, but my recollection is that was just a case in which what was challenged was there was

[00:41:12] Speaker 05:
there was an attainment designation made at a particular time and it had legal effect going forward.

[00:41:20] Speaker 05:
And the retroactivity argument was, well, yes, but it's based on data from the past.

[00:41:25] Speaker 05:
That seems very different from what's going on here, which is the statutory scheme is you have the designation, it triggers this three year, what I'm calling a present exposure

[00:41:41] Speaker 05:
maybe Texas is calling it a procedural right to clean up over three years, right?

[00:41:47] Speaker 05:
And that is vitiated here where you backdate, you issue the new order and don't give them any of that three years.

[00:42:00] Speaker 03:
Your honor, I don't actually think it's that different in terms of the types of arguments that Texas is making here, because the whole point is pressure.

[00:42:09] Speaker 05:
It's not just useful data.

[00:42:11] Speaker 05:
It's actually backdating the designation date.

[00:42:19] Speaker 03:
Right, the effective date.

[00:42:20] Speaker 05:
It's very different.

[00:42:21] Speaker 03:
But the arguments that petitioners were making there, which is the argument that Texas is making here, is that they could have taken action.

[00:42:30] Speaker 03:
If they had known that the NACs were going to become more stringent, they could have taken action in the past that might have impacted what their classification was when the EPA classified them.

[00:42:43] Speaker 03:
And I'm just comparing that to the argument that Texas is making here, which is that if EPA had properly designated El Paso in the first instance, there might have been steps that they could have taken

[00:42:55] Speaker 03:
to before the area, that would have impacted whether the Dona Ana non-attainment area was in attainment as of the attainment date.

[00:43:03] Speaker 03:
And in both situations, I think we believe that that type of an argument is really a secondary retroactivity argument in that what the parties are arguing in both cases is that their expectations about what the law is and what the law

[00:43:20] Speaker 03:
would be, has been upset by the agency's action.

[00:43:24] Speaker 03:
And in the instance of secondary retroactivity, a rule is only invalid if it is arbitrary and capricious.

[00:43:31] Speaker 04:
But are you, I think I get the terminology confused between marginal and moderate.

[00:43:36] Speaker 04:
So, but marginal is the lowest one.

[00:43:39] Speaker 02:
Marginal.

[00:43:39] Speaker 04:
And moderate is one step up.

[00:43:40] Speaker 04:
Okay, so what's at stake here is the attainment deadline was set before the date that EPA promulgated the instrument that's under review.

[00:43:48] Speaker 04:
That's what happened, right?

[00:43:50] Speaker 04:
promulgates the non-attainment designation or it folds El Paso into Las Cruces and it makes it one area.

[00:44:01] Speaker 04:
And then Texas never knew that that was a possibility because El Paso previously was deemed to be attainment.

[00:44:07] Speaker 04:
Now it's part of a non-attainment.

[00:44:09] Speaker 03:
Right.

[00:44:09] Speaker 03:
That's Texas's argument, yes.

[00:44:11] Speaker 03:
The fact that they never knew this was a possibility is, yes, the premise for their retroactivity argument.

[00:44:20] Speaker 04:
Right.

[00:44:20] Speaker 04:
And then at the same time that EPA makes that move, which is a move, it's different.

[00:44:26] Speaker 04:
It changed the state of the universe.

[00:44:28] Speaker 04:
It also said the attainment deadline has already passed.

[00:44:31] Speaker 04:
And then the point is, if the attainment deadline had yet to pass,

[00:44:36] Speaker 04:
then the affected entity could take actions to come into attainment by the time of the deadline.

[00:44:43] Speaker 04:
Whereas now that's just off the table because the attainment deadline has already passed.

[00:44:48] Speaker 04:
That's just true.

[00:44:49] Speaker 04:
That's just fact.

[00:44:51] Speaker 04:
The legal consequences of that may be open to debate, but that all is, I think, just fact.

[00:44:55] Speaker 03:
Yeah, I think so with one caveat, which is that I think

[00:44:59] Speaker 03:
I would just like to reframe what EPA did here, because I understand that looking at this narrowly from Texas's perspective, it looks like what EPA did was set an attainment date in the past, but what EPA was trying to do here... Yeah.

[00:45:14] Speaker 04:
Okay.

[00:45:14] Speaker 04:
No, I don't mean to cut you off, and I didn't mean to suggest that what you're about to say is obvious.

[00:45:17] Speaker 04:
I think I understand that it's a complicated situation because of the remand.

[00:45:22] Speaker 03:
And because there was already a validly designated Doña Ana non-attainment area that El Paso contributes to, which is not a fact that Texas takes issue with.

[00:45:30] Speaker 04:
Right.

[00:45:31] Speaker 04:
And so I understand the rationale for folding El Paso into the area that already existed because you want to keep all that as one sacrosanct area.

[00:45:42] Speaker 04:
So I get that it creates a complication in terms of the attainment deadline because that attainment deadline already was in place for the area as it was previously defined.

[00:45:51] Speaker 02:
Right.

[00:45:52] Speaker 04:
Yeah.

[00:45:53] Speaker 04:
And then EPA has to make a determination of what to do now that there's a remand to figure out the El Paso piece of it.

[00:45:59] Speaker 04:
Yeah, I understand that.

[00:46:01] Speaker 04:
I guess the point still holds, though, that from Texas's perspective, El Paso, until that point, had been in attainment.

[00:46:11] Speaker 04:
And then Texas is told, oh, actually, it's part of a marginal non-attainment area.

[00:46:19] Speaker 04:
And the attainment deadline has already passed.

[00:46:22] Speaker 04:
And whereas EPA could have done it so that the attainment deadline is off into the future, they could have.

[00:46:30] Speaker 04:
They could have done it for the whole area, for example.

[00:46:33] Speaker 04:
They could have.

[00:46:34] Speaker 04:
I mean, I don't think there's any law that would have prevented it.

[00:46:37] Speaker 03:
Well, I do think that in revising the boundary, EPA didn't see

[00:46:47] Speaker 03:
changing the effective date and the attainment date as being a viable option.

[00:46:52] Speaker 04:
So the... But would it have been unlawful to do it?

[00:46:55] Speaker 04:
I mean, is there some statutory prohibition against saying, because of all the equities at stake, we redefine the boundaries and we're just going to give that area, the entire area... Well, there are very limited instances where EPA can change an attainment date.

[00:47:12] Speaker 03:
EPA can give extensions of one year, but only a certain

[00:47:16] Speaker 03:
um, requirements have been met and met.

[00:47:18] Speaker 03:
And I think, and it's easy perspective that it would have been acting in excess of its statutory authority to have used this court's remand to change the attainment date for the entire non-attainment area in a manner in which it couldn't have done absent this court's remand.

[00:47:37] Speaker 03:
Okay.

[00:47:37] Speaker 04:
So then, then, then it could, um, I haven't thought through that and that may, that may be right, but then it could have at least done what Texas suggests, which is,

[00:47:44] Speaker 04:
treat El Paso as its own area and give it.

[00:47:47] Speaker 04:
Now that may be, I can understand the programmatic reasons why that's suboptimal.

[00:47:51] Speaker 04:
I get that.

[00:47:52] Speaker 04:
But I'm just saying as a matter of law, I'm not sure of a reason why EPA couldn't do that.

[00:47:57] Speaker 04:
Is that barred by the statute?

[00:47:58] Speaker 03:
So the cleaner does not explicitly state that a contributing area cannot be designated as a separate non-attainment, as a non-attainment area separate from the violating monitor contributes to, but EPA does believe that that creates an unworkable statutory scheme in a lot of ways.

[00:48:15] Speaker 03:
And I can provide Your Honor with two examples.

[00:48:17] Speaker 04:
So let's just say, I'll accept that.

[00:48:22] Speaker 04:
I'll accept that it's unworkable from the PS perspective, because I'm just trying to get to the retroactive.

[00:48:26] Speaker 04:
But I take the point that there may be some serious workability issues there.

[00:48:30] Speaker 04:
But at the end of the day, the fact remains that Texas is dealing with El Paso, which until then had been an attainment, and is now part of a non-attainment area.

[00:48:41] Speaker 04:
And the attainment deadline has already passed.

[00:48:44] Speaker 04:
That's just a fact.

[00:48:45] Speaker 04:
Yes.

[00:48:47] Speaker 04:
So whether we think about a secondary retroactivity or primary retroactivity, I thought part of your submission was there's not even a retroactivity problem because actually we haven't determined yet whether El Paso was in attainment as of the already past attainment.

[00:49:06] Speaker 03:
The point that we were making, yeah, the point we were trying to make is that this is not a primary retroactivity issue because there are no new legal duties imposed upon Texas associated with the attainment date.

[00:49:20] Speaker 03:
And that even if we accept that this upset Texas' expectations, this is not a secondarily retroactive issue because it's not not arbitrary and capricious.

[00:49:31] Speaker 04:
I think the point- Even if EPA finds that

[00:49:37] Speaker 03:
Yes, even if EPA finds the area is a non-attainment, the rule itself is not retroactive because that finding of non-attainment as of the attainment date is not a direct consequence of a marginal non-attainment designation.

[00:49:59] Speaker 05:
How is it not assumed?

[00:50:03] Speaker 05:
The setting of the original designation sets the attaining date and triggers an obligation for EPA to adjudicate the area of attainment.

[00:50:17] Speaker 03:
Certainly, but reclassification itself and the consequences that flow from reclassification are by no means a certain consequence of just the fact that EPA has to make an attainment determination

[00:50:29] Speaker 03:
as of the attainment date.

[00:50:30] Speaker 03:
And I think that's particularly true in a case like this, where it's not just that EPA hasn't yet made the attainment determination, but there are some serious factual issues here that could result in the area not being reclassified, even if it remains in non-attainment.

[00:50:47] Speaker 04:
Because of the demonstration project?

[00:50:48] Speaker 03:
Because of the 179B demonstration that's been submitted by Texas and New Mexico.

[00:50:53] Speaker 03:
And frankly, that's a big reason why EPA has not yet made an attainment determination.

[00:50:58] Speaker 03:
because it is determined appropriate to give due consideration to Texas's 179D demonstration before determining whether the area is in attainment as of the attainment date.

[00:51:11] Speaker 05:
That's the foreign pollution issue.

[00:51:14] Speaker 03:
Exactly.

[00:51:14] Speaker 05:
But that's just a variation on the chief's original point that maybe they'll ultimately be judged to be in attainment.

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

[00:51:28] Speaker 04:
Okay, I just have one question on the re-designation.

[00:51:35] Speaker 02:
Yes.

[00:51:35] Speaker 04:
So why isn't it a re-designation if the statute works in the way that Texas says it does and that's the only statutorily available way to reach a non-attainment resolution of something that was previously determined to be attainment?

[00:51:55] Speaker 03:
We believe that it was not appropriate for EPA to use its redesignation authority here for two reasons.

[00:52:01] Speaker 03:
The first is that EPA uses its redesignation authority when there's already a valid ozone designation and EPA is presented with new data or new modeling showing that that designation should be altered in some manner.

[00:52:15] Speaker 03:
Here, there is no valid designation.

[00:52:18] Speaker 03:
This court remanded the designation to EPA and

[00:52:22] Speaker 03:
and said that EPA treated the remand as a concession that its explanation, that EPA's explanations in support of the designation fall short of the Cleaner Act.

[00:52:34] Speaker 04:
So the load bearing weight is on the word valid because there was a designation.

[00:52:38] Speaker 03:
You're just saying... Yeah, there's no resisting valid designation and on remand, EPA looked at the same data that was before it when it made that original designation determination.

[00:52:50] Speaker 03:
And the second point I'd like to make is that EPA did not feel that it was appropriate to use its re-designation authority because this was remanded to the EPA from this court.

[00:53:00] Speaker 03:
And a remand is generally an opportunity for an agency to reconsider the original action that was before the court.

[00:53:07] Speaker 03:
The original action that was before the court was section 107D designation, not a section 107, I guess it's also D3, re-designation.

[00:53:20] Speaker 03:
EPA did not feel it would have been appropriate to use this course remand to take a completely different regulatory action.

[00:53:27] Speaker 04:
What if you have a situation in which the EPA has reached a designation and has announced it?

[00:53:32] Speaker 04:
And then later on they think, oh boy, I'm looking at the same data again.

[00:53:36] Speaker 04:
I realized we put a plus in the minus column and it turns out it should have been designated all along as non-attainment, even though we said attainment.

[00:53:44] Speaker 04:
Then you would, what you would have as an invalid designation would then

[00:53:49] Speaker 04:
that mean that EPA would use the re-designation power to re-designate it?

[00:53:54] Speaker 04:
Or would EPA then say, oh, we're just going to re-do the original designation because the mistake was in the past based on the record that we already used?

[00:54:02] Speaker 03:
Yeah, there is, I believe in section 110-K, there is a mechanism for EPA to fix mistakes.

[00:54:10] Speaker 03:
The EPA did not rely on that here, again, because EPA thought it was appropriate to look at the actions before the Clean Wisconsin Court and reconsider that action and revise the boundary using that exact same authority that was at issue before the court in Clean Wisconsin.

[00:54:31] Speaker 04:
Last question I have, and then I'll let you sit down.

[00:54:36] Speaker 04:
Does EPA have an objection?

[00:54:38] Speaker 04:
There may be other problems with this, but would EPA have an objection to us holding the retroactivity claim pending determination either through the demonstration project or anything else, including whatever ultimate designation decision is made by EPA on whether there's attainment or not attainment?

[00:54:58] Speaker 03:
EPA would not have a problem with the court taking that approach, but we do not feel that it's necessary here because we feel that the rule is not retroactive.

[00:55:08] Speaker 08:
Okay, thank you.

[00:55:09] Speaker 08:
Thank you, Mr. Abak.

[00:55:28] Speaker 07:
May I please record David Bach on behalf of the Environmental Intervenors in Support of EPA.

[00:55:35] Speaker 07:
We represented, I represented the El Paso groups that interviewed, that were petitioners to clean with Thompson.

[00:55:42] Speaker 07:
And I'm also a native from El Paso, so happy to answer any questions about that.

[00:55:47] Speaker 07:
I wanted to take my, use my time to answer a question, two questions, one that Judge Katz has asked and one that you asked Chief Judge Srinivasan.

[00:55:57] Speaker 07:
Judge Katz, you were asking about this issue of the exposure.

[00:56:02] Speaker 07:
And I would say that the exposure always exists

[00:56:05] Speaker 07:
for every state at all times.

[00:56:08] Speaker 07:
We all agree, I think, that regulation is not retroactive just because it uses antecedent facts.

[00:56:12] Speaker 07:
That's the Landgraf case.

[00:56:15] Speaker 07:
And the Clean Air Act is a remedial statute.

[00:56:18] Speaker 07:
It's designed to look at the antecedent facts of an area, see what the air quality is, and then impose the classification that's correct based on the seriousness of the problem.

[00:56:30] Speaker 07:
So actually in the Sierra Club versus Whitman case that Texas relies upon, it's not part of the holding at all, but it's just a background fact that that case, that area was designated as a moderate non-attainment area,

[00:56:42] Speaker 07:
same concerns that Texas is concerned about based on data from 1987 to 1989.

[00:56:49] Speaker 05:
There would be no retroactivity problem whatsoever if Congress looks at an area and says it's really polluted as a result of past conduct and from enactment date forward imposes

[00:57:11] Speaker 05:
onerous cleanup restrictions on the area, right?

[00:57:14] Speaker 05:
That's fine.

[00:57:16] Speaker 05:
And I think you're analogizing to that.

[00:57:20] Speaker 05:
But what we have here is just a different scheme, right?

[00:57:25] Speaker 05:
The liability is not imposed from promulgation date forward based on someone assessing what happened in the past.

[00:57:36] Speaker 05:
It's imposed under this scheme where

[00:57:40] Speaker 05:
the agency is supposed to do something and that act creates a three-year period which creates an obligation to adjudicate attainment and triggers consequences from that point forward.

[00:57:57] Speaker 05:
And in that scheme, they choose to backdate the attainment, backdate the designation date and therefore the attainment date.

[00:58:08] Speaker 07:
Well, so, your honor, I think that it's not just a question of Congress specifying this.

[00:58:14] Speaker 07:
I think this is how the act works in general, that any time EPA makes a designation,

[00:58:19] Speaker 07:
after promulgating a NAICS, it looks at data for the areas around the country that already exist predating that NAICS.

[00:58:27] Speaker 07:
And so the Treasure State case is one example where it was a 2010 sulfur dioxide NAICS and EPA used data from 2009 predating that rule before anyone knew that they might be subject to this limit.

[00:58:41] Speaker 05:
To prospectively change a designation.

[00:58:44] Speaker 07:
But the consequences that were imposed could have been the exact same.

[00:58:48] Speaker 07:
They could have been designated as a moderate area.

[00:58:50] Speaker 07:
I think that's one very important point to get across.

[00:58:53] Speaker 07:
There's no entitlement to start at marginal.

[00:58:56] Speaker 07:
EPA can, has the discretion if an area, if it's appropriate in EPA's determination, it can start an area as initially designated as moderate.

[00:59:04] Speaker 07:
In fact, we argue in our brief, it could have done that, it could have done so here, because I think there's a very important equitable point to make here, which is that my clients have been

[00:59:12] Speaker 07:
living with excessive air pollution since 2016, and Texas has been fighting to delay, delay, delay.

[00:59:19] Speaker 07:
Texas initially recommended a non-attainment designation.

[00:59:23] Speaker 07:
So there's been an awareness of this problem for quite a long time.

[00:59:30] Speaker 07:
So I don't think the Treasurer State case is that different.

[00:59:32] Speaker 07:
The Wild Earth Guardians case that the chief judge also authored, in that case, EPA retained a fast approaching attainment deadline

[00:59:41] Speaker 07:
The deadline was December 2015, and the states only had a year to prepare for that.

[00:59:47] Speaker 07:
So they were going to be judged based on two years that had already happened at that point.

[00:59:51] Speaker 07:
So again, it's looking at antecedent facts, but the Clean Air Act is a remedial statute.

[00:59:59] Speaker 07:
You're supposed to look at antecedent facts.

[01:00:03] Speaker 07:
There's no procedural right to three years under the act.

[01:00:06] Speaker 07:
In fact, the statute actually says section 7511A says the attainment date shall be as expeditiously as practicable, but not later than, and in this case, three years.

[01:00:18] Speaker 07:
So I think in Texas it's brief, it actually slips up and it says it should be at least three years.

[01:00:23] Speaker 07:
So that's exactly the opposite of what the statute says.

[01:00:26] Speaker 07:
uh as expeditiously as practicable but in no case later than three years and that brings me to the second question i wanted to briefly answer from the chief judge about whether

[01:00:37] Speaker 07:
EPA could have simply extended the attainment deadline for the entire combined area.

[01:00:44] Speaker 07:
And Your Honor actually wrote an opinion that NRDC versus EPA 777 F.3rd 456 holding exactly that they cannot do that.

[01:00:55] Speaker 07:
The statute does not allow EPA to push back attainment dates.

[01:00:59] Speaker 07:
And we would also argue that the statute would not have allowed EPA to designate El Paso as a separate area.

[01:01:06] Speaker 07:
If you actually look at Table 1, it says the area should be designated based on the design value of the area.

[01:01:12] Speaker 07:
And then the table lists marginal as being, in this case, 71 parts per billion to 81 parts per billion.

[01:01:19] Speaker 07:
There's nothing in the scheme that contemplates designating a contributing county

[01:01:23] Speaker 07:
separately from the underlying area that's filing.

[01:01:27] Speaker 04:
I think in our DC case for me was I think early in my career, so it's a long time ago.

[01:01:33] Speaker 04:
There's a lot of energy to see.

[01:01:35] Speaker 04:
But to me, the authority of the agency to do something stems in part from the fact of a remand.

[01:01:42] Speaker 04:
I think the nature of the beast here is that when there's a remand,

[01:01:47] Speaker 04:
there's wild earth exemplifies this there's often situations in which the agency has to figure out how to accommodate a bunch of things that point in various directions in a complicated regulatory scheme and it may well be that when there's a remand to revisit something that gives some license to the agency to fashion something that in the first instance the statute might not have contemplated that's what to me gives the agency some

[01:02:13] Speaker 04:
power in this kind of circumstance.

[01:02:14] Speaker 04:
Potentially, I don't know if you know this, but it gives the agency some kind of power to fashion a resolution that best accommodates a bunch of different provisions that all don't contemplate the possibility of remand for one geographic area that's bound up in another geographic area and we have to figure out how to reconcile.

[01:02:31] Speaker 07:
I think your point is exactly correct.

[01:02:33] Speaker 07:
This is a complicated situation that's not contemplated at all on the statute.

[01:02:38] Speaker 07:
It's similar to the Wild Earth Guardians case.

[01:02:41] Speaker 07:
And it also relates to another point I would like to make is that Texas could not demonstrate reasonable reliance on this.

[01:02:50] Speaker 07:
The Treasurer State case says that reasonable reliance needs to be shown.

[01:02:53] Speaker 07:
Texas has been involved in this process from the very beginning.

[01:02:56] Speaker 07:
They were parties to clean Wisconsin.

[01:02:58] Speaker 07:
They saw that the El Paso designation was

[01:03:01] Speaker 07:
so clearly unlawful that an EPA could not even defend it in this court.

[01:03:05] Speaker 07:
That was many years ago.

[01:03:07] Speaker 07:
So the idea that they were completely caught off guard.

[01:03:10] Speaker 04:
But we also, our remand decision also said that the designation might well be maintained.

[01:03:18] Speaker 07:
It did say that.

[01:03:19] Speaker 04:
So it wasn't obvious that the result was going to be not attained.

[01:03:22] Speaker 07:
Those of us who follow the case closely, in fact, Texas itself in 2016 initially recommended a non-attainment designation for El Paso.

[01:03:30] Speaker 04:
But then they recommended attainment.

[01:03:31] Speaker 07:
They did.

[01:03:32] Speaker 07:
But I think that the idea that they were completely caught off guard by the fact this might have happened is just not credible.

[01:03:43] Speaker 07:
So I certainly appreciate the time.

[01:03:48] Speaker 07:
But I do think, like I said, I think it's really important that this is a situation that is not contemplated by the act.

[01:03:54] Speaker 07:
But there would have been problems with the proposals that Texas has put forward.

[01:03:59] Speaker 07:
And you might have seen us as petitioners in that case.

[01:04:03] Speaker 07:
And I think that's the reason why it's so important to defer to the agency when it deals with a complicated situation like this, is because it realizes that it could be sued no matter what it does.

[01:04:13] Speaker 07:
and you have to give the agency discretion to reasonably resolve competing concerns, including, as I mentioned, significant public health impacts in our area where every other part of the country has been having controls in place since 2018.

[01:04:29] Speaker 07:
We still don't have it and we're looking at maybe three more years, which I don't think is what Congress contemplated when it passed the Clean Air Act.

[01:04:36] Speaker 04:
Thank you, Council.

[01:04:37] Speaker 04:
Let me make sure my colleagues don't have questions for you.

[01:04:39] Speaker 04:
Thank you.

[01:04:40] Speaker 04:
Thank you, Your Honor.

[01:04:42] Speaker 04:
Mr. Davis, we'll give you two minutes for rebuttal.

[01:04:50] Speaker 11:
Thank you.

[01:04:51] Speaker 11:
And if I could just start with a bigger picture point.

[01:04:54] Speaker 11:
The Clean Air Act is about achieving clean air.

[01:04:57] Speaker 11:
But Congress doesn't pursue that objective at all costs.

[01:05:00] Speaker 11:
It provides important procedural protections to states what attainment days are all about, allowing states to have a chance to reach attainment.

[01:05:10] Speaker 11:
And this retroactive approach here just cuts the states out of that.

[01:05:15] Speaker 11:
And the fact that the states weren't required to do anything doesn't mean that they couldn't have done anything after that non-attainment designation.

[01:05:25] Speaker 11:
And in the implementation rule for this max, EPA explained that states in the position of having a designation like this

[01:05:36] Speaker 11:
or could seek voluntary re-designation, there are things states can do that, when EPA regulates retroactively this way, are off the table.

[01:05:47] Speaker 11:
The Treasure State case just doesn't apply here, because there it was just looking to pass data to do something prospectively, as I think, Judge Katz, as you may have suggested, that's consistent with Justice Scalia's own concurrence.

[01:06:02] Speaker 05:
You agree with my...

[01:06:04] Speaker 05:
recollection of what that case is.

[01:06:06] Speaker 11:
That's right.

[01:06:06] Speaker 11:
And Chief Judge Srinivasan, the Wild Earth Guardian's case, we saw at least three times in that opinion the court talking about the novel circumstances.

[01:06:16] Speaker 11:
For us, that's an indication that that can't be applied outside of those circumstances.

[01:06:21] Speaker 11:
And I've already mentioned one distinguishing factor.

[01:06:23] Speaker 11:
The other is that the court noted that EPA there avoided relying on the counterfactual assumption that subpart 4

[01:06:33] Speaker 11:
EPA has embraced the counterfactual assumption that El Paso was always a part of the Sullivan Park area.

[01:06:43] Speaker 11:
My friend on the other side mentioned section 110-K, that's a SIP provision, 7410-K provides correction authority and it just doesn't apply here, we're not talking about SIPs.

[01:06:54] Speaker 11:
I guess the final thing I would say, I see my time has expired,

[01:06:58] Speaker 11:
is this court's decision in the utility air regulatory group that went up to the Supreme Court in 2014 made the point that an agency may not rewrite their statutory terms to suit its own sense of how a statute

[01:07:13] Speaker 11:
operate.

[01:07:14] Speaker 11:
It went on to quote then Judge Kevenel's dissenting opinion from the denial of the hearing.

[01:07:19] Speaker 11:
In our view, that's what should guide the analysis here.

[01:07:22] Speaker 11:
I think Mr. Bach is correct that EPA gets sued by all kinds of different sides all the time.

[01:07:29] Speaker 11:
Guiding principles should be what does the statute say the agency may and may not do.

[01:07:35] Speaker 04:
Thank you, Mr. Davis.

[01:07:37] Speaker 04:
Thank you to all counsel.

[01:07:39] Speaker 04:
We'll now shift to

[01:07:41] Speaker 04:
The argument's in 21-1263.

[01:07:44] Speaker 04:
Mr. Shankman, please proceed when you're ready.

[01:07:50] Speaker 06:
Thank you, Your Honor.

[01:07:51] Speaker 06:
May I please support Ethan Shankman for petitioner of Weld County.

[01:07:54] Speaker 06:
At council table is Jonah Jacobs, also for Weld County.

[01:07:58] Speaker 06:
I'd like to reserve two minutes for a vote.

[01:08:01] Speaker 06:
Your Honors, EPA's decision to freeze the record on reading on the Weld County issue as of the record that existed as of April of 2018

[01:08:12] Speaker 06:
and to disregard all new evidence, no matter how probative, no matter how relevant, was arbitrary and precious for at least four reasons.

[01:08:21] Speaker 06:
First, Colorado and Weld County would have denied the opportunity to introduce the most recent data that was available at the time that they received a 120-day notice letter from EPA, which first advised them that EPA was going to disagree

[01:08:39] Speaker 06:
with the designations that Colorado itself had proposed.

[01:08:43] Speaker 06:
The first time anonymous proceeding, which was reviewed in Clean Wisconsin, states that received their 120 notice date letter in December 2017 were permitted to respond with either 2014 through 2016 data, or if they had early certified data, they could also submit 2017 data.

[01:09:08] Speaker 06:
They were permitted to submit

[01:09:09] Speaker 06:
in response to EPA's notice, the most recent data that existed as of that time.

[01:09:16] Speaker 06:
Here, EPA did not first notify Colorado and Weld County that it was going to depart from Colorado's recommended designation until the remand, specifically until May 2021.

[01:09:29] Speaker 06:
And Weld County was permitted to comment on that new 180-degree different decision, but they were told

[01:09:39] Speaker 06:
The record is closed.

[01:09:41] Speaker 06:
We're only going to look at evidence that was submitted as of April 2018.

[01:09:46] Speaker 06:
We are not going to even comment on, let alone consider, any new evidence that existed as of May 2021, therefore depriving Colorado and Weld County of the opportunity that every other state, every other area in the country was provided.

[01:10:04] Speaker 06:
And we think it's arbitrary and capricious for that reason.

[01:10:07] Speaker 05:
Is there any reason to think this would have made a difference?

[01:10:10] Speaker 05:
You say under the current data, the percentages contributed by Northern Weld County seem relatively low, 4%.

[01:10:24] Speaker 05:
NOX, 2.6% of volatile organic compounds.

[01:10:32] Speaker 05:
Do we have any sense what those numbers would have been under the older data?

[01:10:38] Speaker 06:
they were higher under the older data.

[01:10:40] Speaker 06:
But your honor, yes, that's actually my second point, which is that this would have made a huge difference to the decision.

[01:10:48] Speaker 06:
So I'd like to address your question directly, but to start by saying that EPA admits that based on the old record, the record that closed as of April 2018, quote, it does not have an accurate understanding of actual emissions from the northern portion of Weld County.

[01:11:07] Speaker 06:
That's at Joint Appendix 779.

[01:11:11] Speaker 06:
During the remand, Colorado Commission and Weld County submitted new modeling, source apportionment modeling.

[01:11:21] Speaker 06:
For the first time in this whole proceeding, allowed EPA to isolate the contribution from Northern Weld and Northern Claremont counties.

[01:11:31] Speaker 06:
The data, Your Honor, Judge Katzis, that you referenced is just a mission.

[01:11:36] Speaker 06:
Emissions are just emissions from sources.

[01:11:39] Speaker 06:
That's only one factor.

[01:11:41] Speaker 06:
You also have to take into account air quality data, the meteorology, the geography, the topography.

[01:11:47] Speaker 06:
This source of fortunate modeling that was introduced into the record by Weld County and commissioned by the state, takes all of those factors together, synthesizes them, and then isolates the contribution from a particular area.

[01:12:01] Speaker 06:
It showed that Northern Weld and Northern Larimer counties together,

[01:12:06] Speaker 06:
contribute 0.4% of in-state contributions of ozone at the most problematic monitor, which is NREL.

[01:12:19] Speaker 06:
That's compared with within the rest of the non-attainment area, 88%.

[01:12:23] Speaker 06:
0.4% compared with 88%.

[01:12:28] Speaker 06:
The other adjacent attainment areas, the attainment area to the west, contributed 8.3%.

[01:12:36] Speaker 06:
And the adjacent attainment area to the east, 3.2%.

[01:12:41] Speaker 06:
Northern Weld and Northern Larimer County, again, 0.4%.

[01:12:45] Speaker 06:
Highly significant.

[01:12:47] Speaker 06:
Not only are those numbers truly remarkable in terms of showing the very small relative contribution of Northern Larimer and Northern Weld counties, but it filled the exact gap in the record that EPA itself recognized.

[01:13:07] Speaker 06:
That's my second reason why it was arbitrary and nutritious to completely discard all new data.

[01:13:14] Speaker 06:
Third, this court's opinion in Clean Wisconsin expressly recognized that if there were to be a remand, that the remand could result in the submission of new or updated evidence.

[01:13:27] Speaker 06:
That's at page 1175 of the court's opinion.

[01:13:30] Speaker 06:
So this notion that EPA has that

[01:13:34] Speaker 06:
court made us do it.

[01:13:35] Speaker 06:
It was the nature of the remand.

[01:13:37] Speaker 06:
The court somehow didn't expect us to take any new information into the record on remand, I think is aligned by the wording of the opinion itself.

[01:13:47] Speaker 06:
And the reference to the remand having to be done as expeditiously as practical, that's a term that comes from the Clean Air Act that references a two-year deadline with the possibility of another year extension.

[01:14:01] Speaker 06:
There's no ethics in the record whatsoever.

[01:14:04] Speaker 06:
that there would have been severe delay if EPA had considered the data that had been handed to it and that was sitting there in the record in this case if it had been required to do so.

[01:14:20] Speaker 06:
And fourth, Your Honor, I think it's critical that we look at the reasons that EPA self-gives.

[01:14:27] Speaker 06:
for freezing the record as of April 2018.

[01:14:31] Speaker 06:
That's what this burden is to judge EPA's decision on and not on the post hoc rationalization by council.

[01:14:40] Speaker 05:
To what extent do you have a higher burden in so far as you're asking EPA to divide up a jurisdictional wealth county?

[01:14:56] Speaker 05:
Why isn't it enough for them just to say, you know, we're going to look at these things by counties.

[01:15:02] Speaker 05:
And it's one thing if you tell us that Weld is different from Larimer, but we just don't want to be any more granular.

[01:15:12] Speaker 05:
We will divide up areas as the state has seen fit its purposes and follow their jurisdictional plans.

[01:15:20] Speaker 06:
Sometimes it does that and sometimes it divides counties.

[01:15:23] Speaker 06:
It depends on the facts and, you know, by factors.

[01:15:26] Speaker 06:
The Weld County, the non-attainment boundary for Weld County has been divided between South and North Weld County since, I think, the late 1990s.

[01:15:38] Speaker 06:
This was the first time that EPA had changed that boundary to include the northern area of Weld County.

[01:15:46] Speaker 06:
Now, Your Honor, stepping back for a second, looking at this work's precedence, because that's what EPA's

[01:15:56] Speaker 06:
main rationales that Mississippi cites to the Mississippi Commission case, who I would like to talk about.

[01:16:02] Speaker 06:
But we have to step back for a second that this work in Catala said that our precedents require EPA to use the best information available in making its designations.

[01:16:14] Speaker 06:
That's the general principle.

[01:16:16] Speaker 06:
The Mississippi Commission said that if EPA decides not to use more recent data that are available,

[01:16:25] Speaker 06:
that it must adequately explain why.

[01:16:29] Speaker 06:
The Mississippi Commission was a completely different case.

[01:16:34] Speaker 06:
That was a case about mismatched datasets.

[01:16:36] Speaker 06:
There's no mismatched datasets in this case.

[01:16:40] Speaker 06:
The task at hand in the Mississippi Commission was to draw the entire non-attainment boundary of a tri-state area that involved Tennessee, Arkansas, and Mississippi.

[01:16:53] Speaker 06:
EPA had more recent data from two of the states, but not from one of the states.

[01:17:00] Speaker 06:
And so EPA's explanation for why it then instead used the older data set that would be complete for all three states was that it didn't want to mix and match data sets for the task at hand for drawing the whole boundary.

[01:17:16] Speaker 06:
In this case, the only task at hand was Weld County, one out of nine counties.

[01:17:21] Speaker 06:
That's the only thing that this court remanded.

[01:17:24] Speaker 06:
For purposes of just determining the Weld County Boundary, EPA had a whole and complete and verified data set from 2018 to 2020.

[01:17:36] Speaker 06:
It wouldn't have to, there was nothing mismatched about it.

[01:17:44] Speaker 06:
It's a completely different situation.

[01:17:46] Speaker 06:
There's other distinctions for Mississippi Commission, too.

[01:17:49] Speaker 06:
That wasn't a remand case.

[01:17:51] Speaker 06:
And the data there, it was only a one-year difference.

[01:17:53] Speaker 06:
Whereas here, the data were five years old by the time EPA sent its first notice.

[01:18:01] Speaker 06:
EPA says that if it had been required to use the new data, that might have led to inconsistent results.

[01:18:12] Speaker 06:
But there's zero explanation

[01:18:14] Speaker 06:
zero explanation in the record as to what those inconsistent results might have been.

[01:18:19] Speaker 04:
I just ask you, I know your time's up, but I want to ask you the following question.

[01:18:24] Speaker 04:
You mentioned that it's important to draw a distinction between what the rationale EPA gave in the instrument under review and the rationale, postdoc rationale of counsel.

[01:18:33] Speaker 04:
Yes.

[01:18:33] Speaker 04:
What's the Delta?

[01:18:35] Speaker 04:
What are you specifically concerned about that was added?

[01:18:40] Speaker 06:
Um,

[01:18:43] Speaker 06:
There's a number of things, but for one thing, Your Honor, with respect to the new source apportionment data that for the first time enabled EPA to isolate contribution from Northern Wealth County, that ability didn't exist before.

[01:19:01] Speaker 06:
In its briefing, DOJ and EPA suggest that there might have been some issues with that modeling, but that's raised for the first time

[01:19:13] Speaker 06:
in their brief, in the record, in the decision, EPA doesn't even acknowledge that that data exists.

[01:19:19] Speaker 06:
It doesn't raise any tech, doesn't take issue with its validity, with any technical aspect of the modeling, nor does it take issue with the significance of that data.

[01:19:28] Speaker 06:
If I could just make, just close this part of my argument with just one last point, which to sort of sum it up.

[01:19:34] Speaker 06:
On EPA's theory, even if,

[01:19:40] Speaker 06:
You know, Weld County has a handful of sources that are major sources, even if those sources had closed during the remade period, and there were now zero emissions.

[01:19:52] Speaker 06:
EPA's theory is, sorry, the record was closed as of April 2018.

[01:19:56] Speaker 06:
Even though we gave every other area of the country the opportunity to put in the most recent evidence, we're not going to give you that opportunity.

[01:20:05] Speaker 06:
And I think that illustrates why that was an arbitrary decision.

[01:20:10] Speaker 04:
Thank you.

[01:20:10] Speaker 08:
Thank you, Mr. Shankman.

[01:20:13] Speaker 08:
Mr. Higgins.

[01:20:31] Speaker 10:
Good afternoon and may it please the court.

[01:20:33] Speaker 10:
I'm Elliott Higgins from the Department of Justice representing EPA.

[01:20:36] Speaker 10:
I will be arguing in response to petitioner Weld County

[01:20:39] Speaker 10:
I will be splitting my time with interveners in support of the Weld designation.

[01:20:43] Speaker 10:
I have eight minutes, interveners have two.

[01:20:46] Speaker 10:
In 2018, EPA concluded that Northern Weld County did not contribute to nearby violations of the 2015 OZO NACs and therefore designated the area as being in attainment of those NACs.

[01:20:58] Speaker 10:
This court remanded that designation, observing, among other things, that Weld County sources generate exceptionally high amounts of VOCs and NOCs.

[01:21:07] Speaker 10:
On remand, EPA reevaluated the extensive technical record before it at the time of the 2018 designation and concluded that emissions in northern Willow County did in fact contribute to nearby NAICS violations.

[01:21:21] Speaker 10:
EPA therefore revised its designation of northern Willow County as being in non-attainment.

[01:21:27] Speaker 10:
In reaching this highly technical designation, EPA observed that Willow County's NAICS and BOC emissions were those of all other counties in EPA's area of analysis.

[01:21:36] Speaker 10:
Indeed, Weld County alone emitted more than half of the Denver Metro's total BOC emissions and one quarter of its total NOx emissions.

[01:21:45] Speaker 10:
Much of these emissions result from oil and gas activities, which are present in both northern and southern Weld County.

[01:21:52] Speaker 10:
Furthermore, EPA's meteorology and topography analyses show that the Denver Mesa Basin influences meteorology to trap emissions from northern Weld County and produce ozone in the Denver Metro non-attainment area.

[01:22:05] Speaker 05:
dive into the five factors.

[01:22:08] Speaker 05:
Can I just ask you about the threshold question of which data to use?

[01:22:14] Speaker 05:
That seems, it seems a little troubling.

[01:22:21] Speaker 05:
If the case goes back on remand and the agency has to, with a remand without vacatur, because the original

[01:22:34] Speaker 05:
attainment designation was not adequately explained.

[01:22:39] Speaker 05:
You're back on remand.

[01:22:40] Speaker 05:
You have one of two choices.

[01:22:42] Speaker 05:
You can either try to embellish the explanation in order to defend the designation that had been made some years in the past, or you could take new agency action to change

[01:23:04] Speaker 05:
attainment designation into a non-attainment designation.

[01:23:07] Speaker 05:
And you chose the latter, which is fine, but it still requires new agency action that, by definition, has to take place some years later.

[01:23:19] Speaker 05:
And that just seems very different from Mississippi Commission.

[01:23:23] Speaker 10:
Well, Your Honor, it was reasonable for the agency to rely on the existing technical record for at least three reasons.

[01:23:30] Speaker 10:
First, reliance on the existing data maintains consistency within Weld County, within the Nine County Denver metropolitan area, and across the country.

[01:23:39] Speaker 10:
Second, the reliance on existing data is in keeping with this court's precedents, including the Mississippi Commission case that you referenced, in which this court concluded that EPA reasonably declined to consider newer data in favor of a matched data set.

[01:23:53] Speaker 05:
And the third reason... When they're making all these designations at once, and they have data flowing in,

[01:24:00] Speaker 05:
from different years.

[01:24:01] Speaker 05:
Some are certified, some are not.

[01:24:05] Speaker 05:
Here's the agency action designating everything countrywide.

[01:24:09] Speaker 05:
We're just going to use the same set.

[01:24:12] Speaker 10:
Well, Your Honor, EPA was not revaluating Willow County in a vacuum.

[01:24:17] Speaker 10:
EPA had 10 other designations on remand from the Clean Wisconsin case.

[01:24:22] Speaker 10:
So we had to make this decision across the entire country.

[01:24:25] Speaker 10:
And in light of this court's

[01:24:27] Speaker 10:
unusual step to set the time dimension on remand.

[01:24:31] Speaker 10:
It required the agency to act as expeditiously as practicable, which was not a small point in the Clean Wisconsin case.

[01:24:38] Speaker 10:
There was supplemental briefing on this issue with various entities arguing that the agency was not acting quickly enough.

[01:24:46] Speaker 10:
EPA decided to rely on the existing technical record.

[01:24:49] Speaker 04:
And that's a highly technical decision that... Does that take you to the point that was referenced by your colleague on the other side that

[01:24:56] Speaker 04:
if the sources had shut down in the relevant area and the emissions were zero, that it still wouldn't have been non-arbitrary and ambitious to rely on the old data set.

[01:25:06] Speaker 04:
Your Honor, I'm not familiar with that particular point in the other case, but what I can say is... Oh, not in the other case.

[01:25:11] Speaker 04:
I'm just referencing the argument that was just made that the upshot of EPA's decision to use the pre-existing data rather than take into account subsequent developments would be that

[01:25:26] Speaker 04:
even if in that intervening period the sources had all shut down and there were zero emissions at this point, still would be judging it based on data that had not taken that into account.

[01:25:36] Speaker 04:
The agency would take the position that that's okay to do, that that's not arbitrary.

[01:25:41] Speaker 10:
Yes, Your Honor, that's correct.

[01:25:43] Speaker 10:
And if that was the case and if all the sources shut down in Northern Well County, the Well County would not be without remedy.

[01:25:51] Speaker 10:
They could petition the agency for redesignation in light of newer data that shows that

[01:25:56] Speaker 10:
a well county should no longer be a non-attainment area.

[01:25:59] Speaker 10:
So the county is not without remedy if it thinks that this new data shows that well county is in attainment.

[01:26:07] Speaker 10:
However, that's an entirely speculative proposition.

[01:26:10] Speaker 10:
EPA has not looked at that new data and made a determination one way or the other, whether the new data shows that the northern well county is in attainment or not.

[01:26:20] Speaker 01:
A procedural one that for failure to actually file a petition.

[01:26:28] Speaker 01:
EPA had no rational basis to consider this new data that showed new things that were quite pertinent or purportedly showed new things that were quite pertinent.

[01:26:47] Speaker 08:
Judge Rogers, oh, I'm sorry.

[01:26:49] Speaker 10:
It's yellow, not red.

[01:26:52] Speaker 10:
Your Honor, we had a remand of this particular designation action, so of the original designation action.

[01:27:00] Speaker 01:
I know.

[01:27:01] Speaker 01:
I know.

[01:27:02] Speaker 01:
I understand that.

[01:27:03] Speaker 01:
But I'm not answering Judge Katz's question.

[01:27:09] Speaker 01:
That's all I'm getting at.

[01:27:10] Speaker 01:
And you said, well, the petition is going to file the petition.

[01:27:16] Speaker 08:
Right, Your Honor.

[01:27:17] Speaker 10:
In the first instance, my point is that EPA's decision to rely on the existing administrative record was a reasonable one under the circumstances in this case where... Because you say consistently throughout the region.

[01:27:37] Speaker 10:
Right, Your Honor.

[01:27:39] Speaker 10:
The agency wanted to ensure that it had a match data set throughout the Denver metronome.

[01:27:45] Speaker 10:
Attainment area so it wanted to make sure that it was designating northern well county using the same data that it used to designate southern well county as well as the rest of the denver metro non-attainment area to or State to examine the situation every two years or is that another provision?

[01:28:10] Speaker 08:
I apologize judge rogers.

[01:28:11] Speaker 08:
I didn't quite hear your question

[01:28:16] Speaker 01:
Is there any statutory I would consider change circumstances periodically?

[01:28:26] Speaker 10:
Yes, Your Honor.

[01:28:28] Speaker 10:
Through the classification process, EPA evaluates whether, you know, basically how the Denver non-attainment area is doing.

[01:28:36] Speaker 10:
So periodically, EPA evaluates whether the monitors are still violated, what the quality of the air is, and that allows for some reassessment.

[01:28:46] Speaker 10:
forward-looking reassessment.

[01:28:50] Speaker 05:
Suppose there were no remand involved.

[01:28:55] Speaker 05:
Just EPA made designation to find the attainment area not to include Northern Weld County.

[01:29:05] Speaker 05:
Does they designate Northern Weld as obtained?

[01:29:10] Speaker 05:
And then three years go by and EPA

[01:29:16] Speaker 05:
starts rethinking and comes to the conclusion that they should change the attainment area to pull in Weld County.

[01:29:28] Speaker 05:
Maybe they should do that and they're considering that.

[01:29:31] Speaker 05:
Could they at that point just refuse to consider current data on that question

[01:29:42] Speaker 05:
just in the interest of, well, we have this Denver area and we've been using five-year-old data to assess it.

[01:29:50] Speaker 05:
So we're going to use old data on this new question, whether to pull Northern Weld County in.

[01:30:00] Speaker 10:
Your Honor, I don't precisely know the answer to your question, whether it would use the existing data set or whether it would use new data.

[01:30:07] Speaker 10:
That's not something that I've discussed with EPA.

[01:30:10] Speaker 04:
I think the question is not what they actually would do, but if they did use, would that be arbitrary?

[01:30:18] Speaker 10:
If in the future EPA decides that Northern Wall County needs to be an attainment or might needs to be an unattainment and relied solely on the existing data set, and this is three years in the future.

[01:30:32] Speaker 10:
Right.

[01:30:34] Speaker 10:
I think it would depend on the facts and circumstances of that case, recognizing

[01:30:39] Speaker 04:
What's the, what's the scenario in which it would be okay to do that?

[01:30:43] Speaker 10:
Well, I think the agency would want to be careful not to treat areas inconsistently as that is the hallmark of arbitrary and capricious action.

[01:30:52] Speaker 10:
So I think the agency would want to.

[01:30:56] Speaker 04:
So then the agency then just say that.

[01:30:58] Speaker 04:
We've treated this large area, which is composed of 17 smaller areas consistently.

[01:31:03] Speaker 04:
So we're not going to entertain any petitions for re-designation as to any sub area, because that would require us to be inconsistent.

[01:31:11] Speaker 10:
Well, I would note, Your Honor, that the petition for reconsideration actually involves the, it contemplates the consideration of new data.

[01:31:18] Speaker 10:
So it's a separate process than the original designation process, which necessarily requires a matched data set.

[01:31:28] Speaker 04:
And you say necessarily requires, meaning that it's legally required or meaning that just that's just the best way to do business.

[01:31:34] Speaker 04:
That's just the best way to do business.

[01:31:36] Speaker 10:
I shouldn't have said necessarily required.

[01:31:39] Speaker 10:
It's a reasonable choice to rely on a matched data set, which is what the agency decided to do under the circumstances of this case.

[01:31:48] Speaker 04:
Okay.

[01:31:49] Speaker 04:
Thank you, counsel.

[01:31:49] Speaker 04:
We'll hear from Mr. Mahar now.

[01:32:07] Speaker 09:
May it please the court, Ryan Moharr on behalf of Boulder County and the other interveners in the Weld County case, I'd like to address three quick points.

[01:32:16] Speaker 09:
First, EPA has justified its use of the original data set that it used when making its initial designations to now add Northern Weld County to the non-attainment area.

[01:32:26] Speaker 09:
Weld does not provide any authority requiring EPA to consider Weld's new data.

[01:32:30] Speaker 09:
Second, even if the court did consider new data, which it should not,

[01:32:34] Speaker 09:
The new data would actually compel EPA to reach its same conclusion, contrary to Wells assertions.

[01:32:40] Speaker 09:
That's because Well County now contains an air quality monitor that shows a violation of the ozone standard in the county itself for the most recent data period of 2019 to 2021.

[01:32:51] Speaker 09:
In northern or southern?

[01:32:53] Speaker 09:
That's in southern Well County, Your Honor, but there is not a monitor in northern Well County.

[01:32:59] Speaker 09:
The monitor that displays a violation is only 23 miles south of the arbitrary line that divides Northern and Southern Well County, while ozone pollution can travel hundreds of miles.

[01:33:12] Speaker 09:
EPA typically considers the whole county to be a non-attainment if it contains a violating monitor.

[01:33:17] Speaker 09:
That's unless there's a significant geographical feature like a mountain range that would intervene to prevent pollution from traveling throughout the county and causing harm throughout the county.

[01:33:28] Speaker 09:
There is no such landscape feature here that was partially litigated in Clean Wisconsin.

[01:33:37] Speaker 09:
Practically speaking, EPA would be doubly compelled to reach the same conclusion if this matter were remanded because Weld County both contributes to violations in other counties and now itself contains a violating monitor.

[01:33:52] Speaker 09:
I'd quickly like to point out that recent data also contradicts Wells' claim that oil and gas emissions have gone down significantly since 2011.

[01:34:00] Speaker 09:
Even if emissions were going down, which is not the case, the Clean Air Act is concerned with attainment of the standards, and we've seen that Colorado has repeatedly failed to attain those standards.

[01:34:12] Speaker 04:
This Court should deny the petition.

[01:34:13] Speaker 04:
Thank you.

[01:34:15] Speaker 04:
Thank you, Council.

[01:34:17] Speaker 04:
Mr. Sheckman, we'll give you the two minutes for rebuttal that you asked for.

[01:34:25] Speaker 06:
Thank you, Your Honor.

[01:34:25] Speaker 06:
Two quick points in response to interveners.

[01:34:28] Speaker 06:
First, their argument that the more recent data, as of May 2021, would not have made a difference.

[01:34:35] Speaker 06:
That's a perfect example of post hoc rationalization.

[01:34:37] Speaker 06:
EPA does not state that as a rationale.

[01:34:40] Speaker 06:
It's not reached that conclusion.

[01:34:41] Speaker 06:
It's not even evaluated.

[01:34:42] Speaker 05:
Second, interveners- Can't the lawyers defend on harmless error grounds?

[01:34:49] Speaker 05:
They can't, they can defend- I'm not sure that counts as post hoc rationalization.

[01:34:55] Speaker 06:
No, the argument that literally would not have made a difference is a technical argument that needs to be something that EPA has concluded on the record.

[01:35:04] Speaker 06:
But in any event, and I want to get the citations for the record, Joint Appendix 1149, Joint Appendix 1558, are where the source apportionment modeling is that shows what northern Wilde County and winter Wilde County only contribute 0.4% in state ozone.

[01:35:23] Speaker 06:
So there's no possibility that this could be a harmless error.

[01:35:28] Speaker 06:
Also, interviewers cite this argument they make about a new monitor in Weld County.

[01:35:33] Speaker 06:
That's based on data that even post-states made in 2021, and it's not in the administrative record that is before this court.

[01:35:41] Speaker 06:
So it should be completely different.

[01:35:43] Speaker 06:
Now, in response to my friend from the Department of Justice,

[01:35:48] Speaker 06:
He brought up on the consistency point, he brought up the fact that with respect to the other 14 counties that had been remanded, EPA also limited its consideration to the old record.

[01:36:01] Speaker 06:
So we want to be consistent.

[01:36:02] Speaker 06:
But your honor, this proves our point.

[01:36:07] Speaker 06:
For all of those other 14 counties, EPA either affirmed the state's original proposals, so no problem, they can stick with the old record,

[01:36:16] Speaker 06:
or they had already given the states in those cases before, the first time around, their 120-day notice.

[01:36:24] Speaker 06:
So those states in those cases had been given the opportunity to put in the most recent data available as of the time they received notice from EPA that EPA was going to disagree with the state's recommendations.

[01:36:37] Speaker 06:
And this is, I just want to give you the citation from that, from their decision and the 14 other cases, it said 86 Federal Register

[01:36:45] Speaker 06:
31-442, EPA notes that EPA's December 2017 initial designation and April 2018 final designation, what was initially in Wisconsin, aligned at that time with Texas's and Colorado's recommendations for El Paso and Weld counties respectively.

[01:37:05] Speaker 06:
And so at that time, EPA had no need to and did not notify the states that the agency planned to modify the state's recommendations.

[01:37:15] Speaker 06:
EPA did that for the first time in May, 2021 and the state and Willow County should have been given the opportunity to put in the most recent data.

[01:37:24] Speaker 06:
Thank you.

[01:37:25] Speaker 04:
Thank you, counsel.

[01:37:26] Speaker 04:
Thank you to all counsel.

[01:37:27] Speaker 04:
We'll take these cases under submission.