[00:00:00] Speaker 00: Case number 15-1239, Ed Al, Environmental Committee of the Florida Electric Power Coordinating Group, Inc., the Dishonor, versus Environmental Protection Agency, and Michael S. Reagan. [00:00:14] Speaker 07: Good morning, Council. [00:00:16] Speaker 07: Mr. Esrae, please proceed when you're ready. [00:00:19] Speaker 08: Thank you, and may it please the court. [00:00:20] Speaker 08: The state implementation plan provisions at issue in this case date back to the earliest days of the Clean Air Act. [00:00:27] Speaker 08: They have adequately served to protect our air for nearly 50 years. [00:00:31] Speaker 08: And yet in 2015, EPA decided that the provisions were inconsistent with the act and needed to be removed. [00:00:37] Speaker 08: In doing so, EPA got the standard for calling a state plan wrong. [00:00:41] Speaker 08: And in any event, and as EPA has recognized in three subsequent notice and comment rule makings, it issued a call that is indefensible on the merits. [00:00:50] Speaker 08: Let me start with the standard for calling a state plan because I think that issue cuts across every other issue in this case. [00:00:57] Speaker 08: And under the statute in section 110K5, a state plan is callable when the administrator finds that it's substantially inadequate to attain or maintain the relevant national ambient air quality standard to mitigate adequately the interstate pollutant transport or to otherwise comply with any requirements in this chapter. [00:01:16] Speaker 08: And the EPA called all of the state plans at issue here on the theory that a provision is substantially inadequate whenever it conflicts with what EPA decides is a fundamental provision of the act. [00:01:27] Speaker 08: But that's wrong and it's wrong in two ways. [00:01:30] Speaker 08: First, it is wrong because the SIP call standard requires some factual analysis of real world effects to find substantial inadequacy. [00:01:38] Speaker 08: And second, EPA's own Fundamentality Standard just cannot be squared with the text of the act. [00:01:44] Speaker 08: Let me start with our primary submission, which is that a SIP call requires factual analysis. [00:01:49] Speaker 08: And we derive that rule from text, context, and purpose. [00:01:53] Speaker 08: So let me just jump straight into the text. [00:01:55] Speaker 08: On our view, we think that three textual features demonstrate that we are looking to factual risk to the requirements of the Clean Air Act when issuing a SIP call. [00:02:05] Speaker 08: First, the text requires substantial inadequacy. [00:02:08] Speaker 08: And on our view, that demands facts to differentiate near inadequacy from substantial inadequacy. [00:02:15] Speaker 08: And I think textually, that comes from the definition of the word substantial, which means considerable in importance, value, degree, amount, or extent, [00:02:22] Speaker 08: And we need context from facts to make that call. [00:02:25] Speaker 08: Without facts, we don't know whether any given inadequacy, that is some legal problem with the plan, is really important or valuable or considerable in amount. [00:02:34] Speaker 08: And I think an example really helped bring this point home. [00:02:37] Speaker 08: EPA says here that continuous emission limit is a fundamental requirement of the Clean Air Act. [00:02:43] Speaker 08: Thus, according to the EPA, any break in continuity is a substantial inadequacy, justifying a SIP call. [00:02:51] Speaker 08: I don't think that any normal English speaker would say that a nanosecond break in an emission limit for one source out of potentially hundreds of sources in a state [00:03:00] Speaker 08: is a substantial issue, at least absent some factual evidence that the break in time matters. [00:03:07] Speaker 07: Is that true across the board? [00:03:08] Speaker 07: Because it may be true that in some situations, the nature of the error calls out for analysis of substantiality along the lines that you're suggesting, which is kind of an empirical assessment of how much does it matter on facts on the ground. [00:03:23] Speaker 07: But it doesn't seem to me to be immediately apparent that the phrase substantial inadequacy [00:03:30] Speaker 07: just by nature can't be used in context in which you don't need a factual on the ground assessment. [00:03:36] Speaker 07: There could be legal inadequacies that are material ones and therefore are substantial. [00:03:42] Speaker 08: So I guess I'd say a couple of things. [00:03:45] Speaker 08: The first is I'm not sure how we would know that the legal inadequacies you point to are material ones unless we'd look to some factual evidence. [00:03:54] Speaker 08: And so I do think that we ultimately end up looking for facts. [00:03:57] Speaker 08: And the analogy I would draw [00:03:59] Speaker 08: is that I think one of the things that the substantial inadequacy language is doing, excuse me, is something akin to harmless error review. [00:04:07] Speaker 08: So when we identify a legal error in a trial, we don't then just say the trial needs to happen again. [00:04:12] Speaker 08: We say, let's go look and see if it really made a lick of a difference in the real world. [00:04:16] Speaker 08: And I think that's what substantial inadequacy is asking itself, did this make a lick of a difference? [00:04:21] Speaker 08: But the other thing is, if substantial inadequacy really was targeting just pure legal errors, [00:04:27] Speaker 08: I think we would see it come up a lot in the Clean Air Act because you know the Clean Air Act is not shy about imposing legal rules and we went through and we looked at the entirety of the Clean Air Act and the substantial inadequacy phrasing only comes up five other times and they're all in reference to the SIP call standard and so I think if substantial inadequacy was really how this act [00:04:48] Speaker 08: meant to describe legal violations, you'd expect to see it a whole lot more. [00:04:54] Speaker 07: But I don't- That's an interesting point about using the same phraseology cutting across the statute. [00:05:00] Speaker 07: But let me just- [00:05:02] Speaker 07: to consider this one an isolation for the moment. [00:05:04] Speaker 07: And suppose, for example, that our decision in NRDC, the one that comes up in the affirmative defense context, as everybody knows, suppose that that goes to the Supreme Court, and the Supreme Court agrees, and there's no footnote two, and there's in fact a determination that it applies to state steps two. [00:05:23] Speaker 07: And I know that all those are caveats that you all don't wanna accept, but just bear with me for purposes of the example, right? [00:05:29] Speaker 07: And then the Supreme Court in its decision says, and this is a significant problem, because there has to be authority on the part of courts to figure out what the nature of the violations and the nature of the sanctions are going to be and an affirmative defense, as my hypothesis, the DC circuit said, is incompatible with that. [00:05:50] Speaker 07: At that point, [00:05:51] Speaker 07: Is your position that that still wouldn't be the kind of substantial inadequacy that would allow the EPA to call the SIPs that contain the affirmative defense that the Supreme Court by hypothesis would have said is incompatible with the EPA, I mean with the CIA? [00:06:04] Speaker 08: That's right. [00:06:05] Speaker 08: And let me give two reasons for that. [00:06:07] Speaker 08: So the first is, I think, even if the Supreme Court identifies there is a legal inadequacy in the state plans, [00:06:13] Speaker 08: that still doesn't tell us whether the legal inadequacy is substantial. [00:06:18] Speaker 08: And so it may be a very important legal inadequacy. [00:06:20] Speaker 08: I think that would make it much easier for EPA to make the factual findings that it needs to make to call the state plan, but it wouldn't establish that the inadequacy is substantial. [00:06:29] Speaker 08: The second point I would make is I don't think that should be particularly surprising because if there's a pure legal error in the plan, the EPA has the ability to fix that. [00:06:38] Speaker 08: It just doesn't come from section K-5. [00:06:40] Speaker 08: It comes from section K-6. [00:06:42] Speaker 08: So Section K-6 says that if EPA made an error in approving a plan, and again, under Subsection K-3, EPA approves the plans after reviewing whether they meet all the requirements of the Act. [00:06:54] Speaker 08: So if EPA made an error in approving the plan, it can identify that error and just remove it out of the plan. [00:07:00] Speaker 08: So EPA under K-6 can fix pure legal errors that were apparent at the time of plan submission. [00:07:05] Speaker 08: But here, EPA did not want to use its K-6 authority. [00:07:10] Speaker 08: That's a JA-25. [00:07:12] Speaker 08: And I think having chosen not to use this K-6 authority, EPA should not be allowed to water down the standards in K-5 in order to reach the same end objective. [00:07:22] Speaker 07: Now we've talked about- And let me just ask one last question along these lines, which is, even if it's true that for a legal error to be seen to be material enough, because I think you're speaking in terms of materiality at some level, that there would have to be some [00:07:41] Speaker 07: consideration of the extent to which that has a practical consequence. [00:07:46] Speaker 07: It's not immediately apparent that there has to be an analysis and a backward looking one. [00:07:50] Speaker 07: It could just be a sort of forward looking one that just says, look, this is a major problem under the CAA because these kinds of errors, let's just use the affirmative defense example. [00:08:01] Speaker 07: one could just hypothesize that, well, these kinds of errors having an affirmative defense is going to have some serious practical consequences in all likelihood going forward. [00:08:09] Speaker 07: And it doesn't seem to me that you necessarily would need a detailed assessment. [00:08:13] Speaker 07: That could just be a blanket determination that this is just a significant thing because of the practicalities that may attend it. [00:08:20] Speaker 08: So I think I agree with everything that you said. [00:08:22] Speaker 08: I don't think it needs to be backward looking. [00:08:24] Speaker 08: I think the assessment can be forward looking. [00:08:26] Speaker 08: I think if EPA wants to say, take affirmative defenses, [00:08:29] Speaker 08: We've run some models. [00:08:31] Speaker 08: We've looked at the facts on the ground a little bit. [00:08:33] Speaker 08: We concluded that these make it so that you can't actually in practice enforce the emission limits. [00:08:37] Speaker 08: I think we'd probably be back here debating whether that's arbitrary and capricious, but that would satisfy the need to find factual findings. [00:08:44] Speaker 08: EPA would be assessing whether there was a substantial inadequacy. [00:08:47] Speaker 08: I think ultimately, this is the easiest case because we don't have to debate what level of facts you need to show substantial reality. [00:08:56] Speaker 08: Courts have gone in circles about what materiality means. [00:08:59] Speaker 08: And depending on the context, that can be a hard question. [00:09:01] Speaker 08: Here, EPA entirely disclaimed the need for facts. [00:09:04] Speaker 08: So I think in many ways, this is the easy scenario. [00:09:06] Speaker 08: Now, I do want to hit the two other textual features that I think are important in the need for facts. [00:09:11] Speaker 08: And the second one is that the statute requires that the administrator make a finding before calling a state plan. [00:09:17] Speaker 08: And then Section 110A2H requires that finding to be on the basis of information available to the administrator. [00:09:24] Speaker 08: And on our view, those terms signal that we're looking for facts. [00:09:26] Speaker 08: I think that's true as a matter of plain language. [00:09:29] Speaker 08: We call them findings of fact and conclusions of law, not findings of law. [00:09:32] Speaker 08: I also think that's true as a matter of structure. [00:09:35] Speaker 08: So the call provisions demand for a finding stands in stark contra distinction with how the act describes all of the other legal requirements in place in the plan submission process. [00:09:45] Speaker 08: It's quite telling. [00:09:47] Speaker 08: Throughout the plan submission process, states have to meet a number of legal requirements [00:09:51] Speaker 08: And the Act always refers to the plan as needing to meet those requirements, not EPA needing to issue a finding that the requirements are met. [00:10:00] Speaker 08: That happens time and time again. [00:10:01] Speaker 08: If you look at subsection 110, K1A, EPA is told to promulgate minimum criteria that any plan must meet. [00:10:08] Speaker 08: In 1B, EPA reviews those criteria to determine if the plan met them. [00:10:13] Speaker 08: In 1C, EPA treats as unsubmitted any plan that doesn't meet the minimum criteria. [00:10:18] Speaker 08: In K3, EPA approves plans that meet all of the criteria. [00:10:21] Speaker 08: It's only when we get to subsection K-5 that we have a finding based on substantial inadequacy. [00:10:27] Speaker 08: Our view makes that difference meaningful. [00:10:29] Speaker 08: EPA's does not. [00:10:30] Speaker 08: And the third textual feature is that if you look at the first sentence of subsection K-5 as a whole, I think the immediate context makes clear that we're looking for facts. [00:10:39] Speaker 08: So that sentence gives three grounds for calling the state plan substantial inadequacy to attain the NACs. [00:10:45] Speaker 08: substantial inadequacy to mitigate interstate pollutant transport, and substantial inadequacy to otherwise comply with the requirements of this chapter. [00:10:53] Speaker 08: I think anyone agrees that the first two noun phrases, the NAX and the interstate pollutant transport, require facts to make the substantial inadequacy finding. [00:11:01] Speaker 08: That's an EPA brief pages 115 to 116. [00:11:05] Speaker 08: But that suggests that the third noun phrase also requires facts because if it were otherwise, the same adjectival phrase, substantially inadequate, [00:11:13] Speaker 08: would be having different modifying meetings based on which noun in the same list it was modifying. [00:11:19] Speaker 06: So in your view, the only prospective modification that would be authorized is one based on modeling that would be state-specific? [00:11:34] Speaker 08: So when I say modeling, I just want to clear up. [00:11:37] Speaker 08: I'm not sure that I necessarily need a formal model. [00:11:40] Speaker 08: I think EPA could. [00:11:42] Speaker 08: depending on sort of make predictive judgments based on facts on the ground. [00:11:46] Speaker 08: I think that would ultimately need to be state specific, but I don't think that EPA would need to point to any specific fact in any state. [00:11:52] Speaker 08: So that may be a little counterintuitive. [00:11:54] Speaker 08: Let me explain what I mean. [00:11:55] Speaker 08: I think if EPA said, look, we've identified clauses in, let's say, 10 states that for whatever reason we think are really problematic and we have facts on the ground that show that. [00:12:04] Speaker 08: I think EPA could extrapolate from that and say, well these other five states we don't necessarily have facts but because of the presence of the factual analysis we've done for some states, we can conclude that these are going to be a substantial issue so we conclude that those provisions are substantially inadequate. [00:12:20] Speaker 06: It seems anomalous to think that if EPA and its experience develops an understanding that there's a gap as a legal matter in a SIP, whether that's something that has been factually demonstrated or not. [00:12:43] Speaker 06: And I guess going back to the chief's question, if it's something that everybody now understands is a problem, [00:12:49] Speaker 06: It seems like it's not very consistent with, otherwise comply with any requirement of this chapter. [00:12:56] Speaker 06: Just feels like a little redundant to say, well, let's develop state-specific models, or let's allow the NACs to be violated so that we can make a demonstration that's factual. [00:13:09] Speaker 06: It seems like it's incumbent, or arguably, it's incumbent on the EPA to nip that in the bud before [00:13:18] Speaker 06: the emissions exceed the NAICS. [00:13:20] Speaker 08: So there's a lot there. [00:13:22] Speaker 08: Let me try and unpack it. [00:13:23] Speaker 08: And I hope I can get to everything. [00:13:24] Speaker 08: So on the first point, I don't think that we would hamstring EPA from identifying what I think is the core of your question, where EPA has identified a legal issue and has determined that that issue is making a difference on the ground from remedying that issue in other states where EPA doesn't necessarily have the facts. [00:13:46] Speaker 08: Although EPA ultimately needs to make a state specific finding, I'm not saying that it needs to base that finding on facts that are specifically from that state. [00:13:54] Speaker 08: Although I would point out sort of as an aside, the EPA can always get that data if it wants it under 110 P, EPA can demand whatever data it wants from any state in considering whether to revise a SIP. [00:14:06] Speaker 08: Now, the second point is I think baked into the premise of your question was the idea that we've already concluded as a legal, the legal error issue [00:14:14] Speaker 08: is actually having some impact on the ground. [00:14:17] Speaker 08: And that's our whole point. [00:14:18] Speaker 08: EPA has to find some impact on the ground. [00:14:20] Speaker 08: And then the third thing I'd say, and this goes back to my answer to Chief Judge Srinivasan, if EPA really thinks that the legal error in the plan is just something that it can't live with, EPA has that authority. [00:14:31] Speaker 08: It just needs to proceed under case six. [00:14:33] Speaker 08: Because EPA would say, look, there's a legal error. [00:14:36] Speaker 08: That legal error was there at the time the plan was approved. [00:14:39] Speaker 08: made an error approving the plan and so we are using our case six authority to remedy that. [00:14:44] Speaker 08: EPA just doesn't want to use its case six authority here because what I would mean is that it would remove the provisions that EPA identified as erroneous from the plan and EPA thinks that's a bad policy outcome. [00:14:56] Speaker 08: EPA wants to go through the SIP approval process because it wants to leave the plans in place during the transition period and our point is [00:15:03] Speaker 08: EPA shouldn't be allowed to avoid case six and in doing so water down a five. [00:15:09] Speaker 06: But that seems a little anomalous in view of cooperative federalism. [00:15:12] Speaker 06: What you're saying is the EPA itself should revise rather than as under a SIP call leave some discretion to the state to figure out how it wants to revise. [00:15:25] Speaker 08: I mean, I recognize that that may be a little bit anomalous, although, you know, [00:15:32] Speaker 08: K6 is in there and we've got to live with it. [00:15:34] Speaker 08: And K6 does say if there was a legal error in improving the plan, then EPA can fix it. [00:15:39] Speaker 08: But I don't think it's that anomalous because I think that K5 and K6 are really targeting different situations. [00:15:45] Speaker 08: I think they're really targeting the situation in K5 where EPA has properly approved a plan. [00:15:51] Speaker 08: And for whatever reason, it just does not work in practice. [00:15:54] Speaker 08: And I think under that sort of framing of K5, [00:15:57] Speaker 08: it makes sense that there would be a demand for facts because you'd have to demonstrate why it's not actually working in practice. [00:16:03] Speaker 08: And case six is meant to deal with the situation where EPA really made an error that would have been apparent from the outset. [00:16:09] Speaker 08: Now, I think on the whole, you know, text context and purpose all make clear that the SIP call provisions demand facts. [00:16:17] Speaker 08: And if I could just briefly move on to discussing why, even if the SIP call standard was right, I don't think the SIP calls were justified here [00:16:25] Speaker 08: And let me start with the automatic exemption. [00:16:28] Speaker 09: So EPA says that automatic exemptions- Before you jump there, let me ask one follow-up question on the line of argument you were making. [00:16:37] Speaker 09: You contrasted K5 and K6, but what if you contrast K5 and this is long, A2H2. [00:16:46] Speaker 09: Okay. [00:16:46] Speaker 09: And A2H2 talks about revisions on the basis of information. [00:16:55] Speaker 09: So that seems to imply a factual finding, whereas K-5 doesn't have that phrase on the basis of information. [00:17:06] Speaker 09: So what do we do with that variation? [00:17:09] Speaker 08: Sure. [00:17:09] Speaker 08: So I think that this court's already been down that road. [00:17:12] Speaker 08: In Virginia, the EPA said the two provisions work together and you read them in part in material. [00:17:17] Speaker 08: So I think K-5 says we need a finding. [00:17:20] Speaker 08: I think finding incorporates facts. [00:17:22] Speaker 08: And to the extent there's any doubt about that, I think it's just supported by A2H. [00:17:25] Speaker 08: I think that the court's already gone down that road in Virginia. [00:17:29] Speaker 09: Why is it supported by A2H instead of contrasting with A2H? [00:17:34] Speaker 08: Because I think that the two provisions are really going to the same direction. [00:17:38] Speaker 08: So A2H talks about when EPA has the authority to demand a SIP call, which [00:17:47] Speaker 08: line between demanding a SIP call under A2H and demanding a SIP call under K5. [00:17:51] Speaker 08: EPA certainly hasn't said that they're different sources of authority. [00:17:55] Speaker 08: And I do think that's why in Virginia, the court said that you read the two provisions together. [00:18:01] Speaker 09: But again, well, if I do, let's say I agree with you that find [00:18:07] Speaker 09: when it's used in a legal sense, a specifically legal sense requires the kind of factual finding that you're talking about. [00:18:15] Speaker 09: But in a general sense, people say find all the time and they would apply it to the kind of legal question. [00:18:24] Speaker 09: They would apply it to any kind of error. [00:18:25] Speaker 09: I found an error. [00:18:26] Speaker 09: It wouldn't necessarily be a factual error. [00:18:28] Speaker 09: And if, you know, usually when we prize a legal [00:18:33] Speaker 09: term of art over a general definition, we need some reason to do that. [00:18:38] Speaker 09: What's the reason to do that here? [00:18:40] Speaker 08: So I think the reason is the immediate context, which is that when the act is referring to criteria that a plan just might, must meet that is legal criteria. [00:18:49] Speaker 08: And I think, you know, baked into your question, this is find illegal errors. [00:18:53] Speaker 08: That's sort of that framing of the word find. [00:18:55] Speaker 08: It talks about the criteria that what the plan must meet. [00:18:59] Speaker 08: It doesn't use the word fine. [00:19:00] Speaker 08: It doesn't say EPA needs to find. [00:19:02] Speaker 08: the criteria are not met. [00:19:04] Speaker 08: And so I think on that framing, we would then say, okay, well then find clearly is looking to something different. [00:19:10] Speaker 08: But I guess the bottom line is, if all I had is find, I probably wouldn't be leading with the argument that EPA needed facts and it's simple. [00:19:18] Speaker 08: I don't only have find though. [00:19:20] Speaker 08: I've got substantial inadequacy. [00:19:21] Speaker 08: I've got the rest of K5. [00:19:23] Speaker 08: I've got the contrast between [00:19:25] Speaker 08: the standards for going through this plan approval process where EPA gets to compare them and say, are all the legal requirements met versus the standard for calling a SIP? [00:19:35] Speaker 08: I've got the difference between K5 and K6. [00:19:37] Speaker 08: I've got the purpose of this act, which is meant to be cooperative federalism. [00:19:40] Speaker 08: And we think that demanding facts means that EPA has to show that putting the states through the effort of going through a SIP call is going to make a lick of a real world difference. [00:19:49] Speaker 08: And so I think when I've got all of that, I think FIND helps me, but I don't need to rest only on FIND. [00:19:55] Speaker 08: If there are no further questions, I'll reserve the balance of my time. [00:20:01] Speaker 07: I'll make sure my colleagues don't have additional questions for you at this point. [00:20:04] Speaker 07: Okay, thank you, Mr. Esrae. [00:20:06] Speaker 10: Mr. Frye, we'll hear from you now. [00:20:13] Speaker 01: May it please please the court. [00:20:14] Speaker 01: I'm here on behalf of the numerous manufacturing agricultural and electric power interests that we've referred to as industry petitioners. [00:20:22] Speaker 01: I hope I can bring some, some real world perspective to this discussion which has been pretty theoretical so far. [00:20:29] Speaker 01: For over 30 years, EPA states and the courts have all recognized two undisputed facts that emission limitations based on what pollution control technology can achieve must recognize and accommodate the limits of that technology. [00:20:45] Speaker 01: and that it would be fundamentally unfair to penalize facilities for times when the control technology cannot meet the emission limitations based on normal operations, even though the facility has taken all reasonable measures to install and operate and maintain that control technology. [00:21:03] Speaker 01: But then in 2015, in response to a rulemaking petition and a consent decree, EPA told over two thirds of the states that their EPA approved SIPs were substantially inadequate [00:21:15] Speaker 01: because they contain provisions addressing those realities, addressing those undisputed realities. [00:21:22] Speaker 01: Now, there hadn't been any change in EPA's recognition of those principles. [00:21:29] Speaker 01: EPA just decided that most of the EPA approved SIPs in the various measures that they chose in their discretion to accommodate the limits of control technology [00:21:39] Speaker 01: have failed to comply with what EPA now describes as fundamental requirements that it's identified, requirements that EPA says have been in the act since at least 1977. [00:21:50] Speaker 01: Now that conclusion that over two-thirds of the approved SIPs are inadequate would be remarkable in and of itself, but it's made more remarkable [00:22:02] Speaker 01: by the fact that EPA has disavowed any need to show that the identified provisions are in fact causing air quality problems, and by EPA's consistent disregard of relevant case law and of keywords in the statute. [00:22:17] Speaker 01: Failing to take a look at the effects of the SIP as a whole is really a central problem here, and the courts have told EPA over and over again that it must do so. [00:22:27] Speaker 01: The agency instead insists that specific SIP provisions have to be written a certain way, even while at the same time admitting that if you change the provision, it wouldn't prevent the emissions that are associated with SSM events from still occurring because they are, by definition, [00:22:43] Speaker 01: unavoidable with reasonable precautions. [00:22:46] Speaker 01: So EPA's preferred approach not only elevates form over function, but it really won't further the goals of the Clean Air Act. [00:22:54] Speaker 01: And in many instances, it likely will ultimately result in less effective measures to minimize air pollutants. [00:23:02] Speaker 06: Now, let me Mr. Fry, it seems like the basic premise of your argument today is that nothing can be done to mitigate emissions during SSM. [00:23:14] Speaker 06: And I recognize that our other decisions, for example, Sierra Club and US Trigger were in the context of Section 112, but the S the sort of [00:23:23] Speaker 06: anomalous character of SSM events is common across emissions of HAPs and emissions that are addressed by emissions of the six criteria pollutants. [00:23:36] Speaker 06: So in those cases we said no, there is a requirement that there not be exemptions or mere reliance on a general duty [00:23:46] Speaker 06: in order for the emissions limitations to be enforceable. [00:23:52] Speaker 06: So I think the question is not whether different approaches are needed for SSM events than for steady state operation, but more, is there something that is enforceable where the source is saying, or the state is requiring, do X, Y, and Z and X anti before NACs are exceeded, [00:24:15] Speaker 06: those limitations can be enforced. [00:24:20] Speaker 01: More respectfully, Your Honor, I don't quite agree with your characterization of the court's opinions related to standards for hazardous air pollutants. [00:24:32] Speaker 01: what those presidents read carefully say is that EPA has to have a basis for the requirements that it imposes, not that there can't be alternative requirements to a particular numerical standard that applies during SSM events, but in this case, [00:24:56] Speaker 01: We're talking about state implementation plans, which, again, the precedent is clear that EPA, to disapprove a SIP, to make a SIP call, has to look at the SIP as a whole. [00:25:08] Speaker 01: It's not just disapproving a portion of the SIP, which it can do when it's reviewing a SIP in the first instance. [00:25:15] Speaker 01: But a SIP call has to look at the vaccine as a whole. [00:25:18] Speaker 01: And the provisions that EPA [00:25:24] Speaker 01: called, the EPA said render, no, EPA said those provisions were substantially inadequate. [00:25:30] Speaker 01: Actually, the language they used didn't say the SIP is substantially inadequate, but those provisions the EPA looked at in isolation, first of all, by their own terms, a lot of times provided the additional protections that you described. [00:25:46] Speaker 01: For example, in order to claim an affirmative defense or in order to have the director determine [00:25:54] Speaker 01: that a violation didn't occur. [00:25:57] Speaker 01: Facilities under many of these provisions have to show that they took reasonable steps to minimize their emissions, that they minimize the duration, so they have to shut down if that will reduce the emissions. [00:26:12] Speaker 01: There are provisions that in many of these SIPs [00:26:15] Speaker 01: that say you can't take advantage of this SSM provision if there was an ambient standard violation that occurred and that this event contributed to. [00:26:26] Speaker 01: And perhaps the best example, I think, of the problem with EPA's approach is in some cases, [00:26:34] Speaker 01: when the state commented on the proposed rule and said, well, look, you're just looking at this SSM provision. [00:26:41] Speaker 01: But we have another provision in another part of our statutes or regulations that says that in any event, you can't exceed a hazardous air pollutant standard. [00:26:52] Speaker 01: You can't exceed a federal new source standard. [00:26:59] Speaker 01: the state can still require you to CC emissions despite this. [00:27:04] Speaker 01: We have all these other provisions and EPA said, well, yeah, but they're not in the same section. [00:27:08] Speaker 01: They're not in the same paragraph of your regulation. [00:27:12] Speaker 01: That's why I'm talking about elevating form over function. [00:27:16] Speaker 01: The totality of the SIPs and EPA explained this [00:27:23] Speaker 01: again, in the actions that took in 2020. [00:27:27] Speaker 01: But as we explained in our brief and in our comments to EPA originally, the totality of the SIP is what EPA needs to look at, and that's what it failed to do in this case. [00:27:38] Speaker 01: Let me just talk about what the impact is [00:27:43] Speaker 01: of these SSM provisions and how, in fact, it's not, well, EPA says that the potential impact justifies these SIP calls, even though it says it doesn't really need to evaluate the impact. [00:28:05] Speaker 01: The interveners say, oh, you can have a lot of big problems if you have an SSM event, so that's why you can't have an SSM provision. [00:28:12] Speaker 01: But in fact, what we have to recognize is that, again, by definition, these are events that are not avoidable with reasonable precautions. [00:28:28] Speaker 01: And they're events that are occurring at a particular time, as Mr. Esrae kind of alluded to, a particular time for a particular source. [00:28:36] Speaker 06: Can I just interject just before we get too far off it, because you had made the point that you understand EPA to be saying that it wouldn't consider controls that weren't in the same part of the state statute. [00:28:53] Speaker 06: And I wonder just for my assistance in evaluating that, I don't think your brief cites to a portion of the rule. [00:29:02] Speaker 06: Where would you look in the rule to confirm [00:29:05] Speaker 06: that that was part of EPA's ground for the SIP call. [00:29:12] Speaker 06: Something wasn't codified together in one place. [00:29:20] Speaker 01: Let's see. [00:29:24] Speaker 01: Well, for one example, Your Honor, [00:29:28] Speaker 01: We cited two comments of a number of states pointing out that they had other provisions in in other parts of their state implementation plan and and in EPA did not. [00:29:43] Speaker 06: EPA did not you know you're thinking of, for example, the North Carolina comments. [00:29:48] Speaker 01: Right, exactly. [00:29:50] Speaker 01: And the discussion in North Carolina when EPA in 2020 withdrew that SIP call, which is the latest promulgated interpretation of the Clean Air Act that we have from EPA actually, [00:30:07] Speaker 01: EPA recognized there that what the SIP call was doing was really quarreling with the way that the North Carolina SIP was organized rather than with all the details of the plan as a whole. [00:30:26] Speaker 01: But if it would be helpful, we can provide additional citations to that problem. [00:30:31] Speaker 01: I know this is by virtue of the way EPA did this and they said, oh, we've got 36 states that are inadequate. [00:30:39] Speaker 01: It's hard to find all the individual statements. [00:30:45] Speaker 01: So if that would be helpful, we could provide a letter to the court after this on that point. [00:30:54] Speaker 01: So let me go back to the practical impact. [00:31:01] Speaker 01: Let me first say that all the interveners say, oh, the serious environmental impacts justify getting rid of these supervision. [00:31:10] Speaker 01: There's not in the record [00:31:12] Speaker 01: information that ties the called SIP provisions to particular air quality problems. [00:31:18] Speaker 01: And in any event, EPA disavowed that as a reason for these SIP calls. [00:31:23] Speaker 01: And so under [00:31:25] Speaker 01: SEC v. Shainery and Michigan v. EPA, we can only look at what justification EPA gave for the SIP calls. [00:31:34] Speaker 06: But in any event- So I take its justification to be the legal argument that the emission limitations and their effectiveness and enforceability is central to compliance with 110. [00:31:51] Speaker 06: And that if you think of it as, you know, that you have to have a fence to keep the sheep in and they'll escape if you have gaps in the fence. [00:31:58] Speaker 06: You can build a fence of different materials for different parts of the terrain, but you have to have the fence. [00:32:04] Speaker 06: And when there's a hole, we can't be confident that the sheep won't escape. [00:32:09] Speaker 06: And that's what we have here. [00:32:11] Speaker 06: So I guess, given that what 110 is about is the control of these criteria pollutants in order to maintain the NACs, the notion that there has to be case by case demonstration would very much bog down the enforcement. [00:32:31] Speaker 06: And I'm just not sure what in the act makes clear that that's what Congress had in mind. [00:32:39] Speaker 01: Well, I think what makes clear in this context is we're talking about SIP revisions. [00:32:45] Speaker 01: And so EPA is bound by the limits in Section 110K5. [00:32:52] Speaker 01: And that does require a finding that the SIP as a whole is substantially inadequate. [00:33:00] Speaker 01: And as Mr. Esrae suggested, substantial has to mean something. [00:33:04] Speaker 01: If it just doesn't follow some EPA interpretation of some provision of the act, then the supervision [00:33:16] Speaker 01: the SIP call provision should have been written very differently. [00:33:20] Speaker 06: Right, so I understand the position based on the SIP call authority, but just for the purposes of separating the arguments, if we assume that under the third type of rationale for SIP call authority, which has to do with compliance with [00:33:37] Speaker 06: The Clean Air Act assuming that that doesn't require a factual showing or factual modeling that a particular state has or is likely to exceed the next but allows pointing to [00:33:52] Speaker 06: a defect that, and I thought Mr. Ezra had a really interesting and helpful analogy in referring to that isn't harmless error for purposes of the requirements here. [00:34:04] Speaker 06: Why wouldn't it be sort of the poster child of something that we couldn't treat as harmless error if there were a gap in the very limitations on which the state and the EPA are counting [00:34:21] Speaker 06: for confidence that emissions are being controlled? [00:34:26] Speaker 06: Why wouldn't that be something non-technical, trivial, kind of nitpicking, but actually something rather central? [00:34:37] Speaker 01: Okay, I think there are two aspects to the answer to that. [00:34:41] Speaker 01: One aspect is [00:34:43] Speaker 01: grounded in the SIP provision, what states are required to do, what states have discretion to do in their SIP. [00:34:53] Speaker 01: And it's clear that the states get to decide the particular mechanisms used to meet the Clean Air Act requirements. [00:35:01] Speaker 01: And so if a state and its package of requirements says, you know, there'll be a limitation on this source and there won't be a limitation on another source, [00:35:12] Speaker 01: And under these circumstances, there won't be a limitation for this source. [00:35:16] Speaker 01: That's all permissible under section 110. [00:35:19] Speaker 06: And I don't take EPA to disagree with you as far as you've just gone. [00:35:24] Speaker 01: Okay. [00:35:25] Speaker 01: So to say that because the package of provisions, of requirements, of measures that the state has adopted is substantially inadequate because [00:35:39] Speaker 01: not because it's not protecting air quality, but because it doesn't include a provision written the way EPA believes it should be. [00:35:49] Speaker 06: That's not what EPA thinks it's doing. [00:35:51] Speaker 06: EPA is saying we have steady state and then we have SSM. [00:35:55] Speaker 06: And back in the 70s and 80s, when it was drinking from a fire hose, it was focusing on steady state controls. [00:36:02] Speaker 06: Those are in place. [00:36:03] Speaker 06: And now it's realized over the experience of decades [00:36:07] Speaker 06: These SSM events can in some cases be belching a lot of criteria pollutants, they can be, they really are holes in defense, the sheep are running out. [00:36:18] Speaker 06: And just conceptually that's obvious, we don't need to model or go state by state, you know, [00:36:25] Speaker 06: EPA has bogged down and way behind in lots of its challenges. [00:36:29] Speaker 06: So at least this one seems like an easy call. [00:36:32] Speaker 06: Let's close these loopholes. [00:36:34] Speaker 06: And it isn't saying how you have to do it. [00:36:37] Speaker 06: It isn't saying except that they have to be enforceable. [00:36:40] Speaker 06: It's just saying we can't have periods when there's a blank check for emissions. [00:36:46] Speaker 06: There's nothing other than I'm a good citizen. [00:36:49] Speaker 06: I'm going to try hard. [00:36:52] Speaker 06: In the step that EPA the state or citizens could turn to to say no actually here you haven't met the criteria. [00:37:03] Speaker 01: Well, your honor, first of all, I. [00:37:05] Speaker 01: have to take issue with that blank check characterization as I did before, because the SIP as a whole has various provisions that are enforceable that will provide protection. [00:37:17] Speaker 01: But let me give a great example, I think, of why just this theoretical inadequacy isn't really a hole in the fence that's going to allow sheep out, okay? [00:37:29] Speaker 01: The affirmative defense provision. [00:37:32] Speaker 01: EPA has acknowledged numerous places that even if you don't have an affirmative defense provision, you're still going to have these emissions. [00:37:42] Speaker 01: So how is that a hole in the fence when a state decides not to impose a civil penalty when that particular mission occurs? [00:37:52] Speaker 01: if you didn't have that provision. [00:37:56] Speaker 01: In the SIP call authority, EPA has to identify to the states what they have to do to remedy the inadequacy. [00:38:02] Speaker 01: But in this case, taking the affirmative defense provision away doesn't prevent the emission from occurring. [00:38:09] Speaker 01: All it means is that my clients will be subject to citizen suits for [00:38:15] Speaker 01: events that they could not reasonably have prevented. [00:38:19] Speaker 01: And EPA's solution to that is, well, make those arguments, those equitable arguments to the court, but it doesn't prevent the emissions. [00:38:27] Speaker 01: That's not a hole in the fence. [00:38:29] Speaker 06: Well, I think the assumption and the assumption in NRDC in the section 112 context is that there are things that, you know, that the general characterization that these are unavoidable is perhaps not appreciating that with penalties, with incentives, there are ways to better maintain, there are ways [00:38:51] Speaker 06: to manage the timing of maintenance. [00:38:56] Speaker 06: There are ways to use cleaner fuels. [00:38:59] Speaker 06: There are a number of different ways. [00:39:00] Speaker 06: And I think that's what EPA is looking for in something to govern these SSM periods. [00:39:10] Speaker 01: So let me respond to that in two ways. [00:39:15] Speaker 01: One, I think it's important to understand that the [00:39:22] Speaker 01: the practical effect of what all this does. [00:39:25] Speaker 01: So if you take away an SSM provision, but you don't take away the fact that it's unreasonable to set a limit that can't be met with the identified technology, what that ultimately results in, and the states made this point in many of their comments, is the limit that applies [00:39:43] Speaker 01: during normal operations will have to be kind of a common denominator. [00:39:47] Speaker 01: And that in fact has occurred when EPA got rid of its SSM exemption provision for hazardous air pollutants. [00:39:55] Speaker 01: some industries then sued to challenge their existing emission standards because they were now no longer consistent with what's achievable with available technology. [00:40:06] Speaker 01: So that's a really critical reality check is that if you don't have these provisions, you're going to have higher emission limits. [00:40:15] Speaker 06: The other thing is these provisions- Or is it that you're going to have lower? [00:40:17] Speaker 06: And I'm thinking of, is it camp where we had the [00:40:22] Speaker 06: the sort of charmingly know which is the case where we had yeah where we had the charmingly hand drawn curves if you're going to have periods. [00:40:30] Speaker 06: There it's about the multi point or single point system. [00:40:36] Speaker 06: And so there are going to be times when you can have exceedances and in setting the ordinary steady state standard, it has to take account of those. [00:40:44] Speaker 06: And so the steady state standard will have to be lower during ordinary operation in order to accommodate for the fact that there are going to be uncontrolled periods with higher emissions. [00:40:55] Speaker 06: So, I mean, you point to that as another way that theoretically [00:41:00] Speaker 06: these issues could be dealt with. [00:41:02] Speaker 06: And I think, you know, EPA here is saying in keeping with 110, we're going to let the states take the first crack. [00:41:10] Speaker 06: We don't really know how they prefer to do this, but that there are ways that are more concrete and more enforceable than what's in place. [00:41:16] Speaker 06: But I don't want to be beating a dead horse. [00:41:18] Speaker 06: And I do see we've used up your time. [00:41:22] Speaker 01: Could I just respond? [00:41:23] Speaker 06: Absolutely. [00:41:24] Speaker 01: Okay, thank you. [00:41:27] Speaker 01: So I don't think it results in lower limitations at all because again, we're in the backdrop here where EPA hasn't asserted and can't show that the status quo in fact is causing ambient air quality standards. [00:41:44] Speaker 01: So there wouldn't be a factual basis for lowering limits in the SIP. [00:41:49] Speaker 01: And that's different from hazardous air pollutant standards where the statute [00:41:53] Speaker 01: where Congress specifically in 1990 said, we've got to be more prescriptive. [00:41:58] Speaker 01: We got to say exactly what the levels will be for these hazardous air pollutants standards. [00:42:03] Speaker 01: But the other thing is that the NEPA has recognized this. [00:42:09] Speaker 01: They made this point when they were approving of affirmative defenses is sources, if they know that they can potentially avoid a penalty, [00:42:23] Speaker 01: will attempt to reduce the impact of their emissions. [00:42:29] Speaker 01: They have an incentive and in fact, they have to have a plan. [00:42:33] Speaker 01: So there's a requirement to have an SSM plan that says you're gonna do these things if you have an event. [00:42:38] Speaker 01: That doesn't exist if you don't have these SSM provisions to begin with. [00:42:43] Speaker 09: If the call is gonna lead to higher emission limits, then why is the industry against the call? [00:42:53] Speaker 01: Well, because we think the existing system is working and has worked appropriately and is the right way to do it. [00:43:03] Speaker 01: We're not advocating a higher least common denominator standard. [00:43:08] Speaker 01: We are advocating and have supported a standard where [00:43:11] Speaker 01: in these like director discretion provisions, for example, it's the expert agency that looks at all the facts, looks at what the facility did in an event, looks at their plans and their reports, and determines that, yeah, indeed, that was something that was unavoidable. [00:43:31] Speaker 01: We think that's a [00:43:32] Speaker 01: a more practical and more effective way to address the problem. [00:43:36] Speaker 01: And it's worked. [00:43:37] Speaker 01: It's not a problem. [00:43:38] Speaker 01: We have a solution in search of a problem in this rulemaking on a grand scale. [00:43:46] Speaker 10: Let me make sure my colleagues don't have additional questions for you, Mr. Fry. [00:43:51] Speaker 07: Thank you. [00:43:52] Speaker 07: We'll hear from EPA counsel now. [00:43:55] Speaker 07: Ms. [00:43:55] Speaker 07: Buckley. [00:43:57] Speaker 05: Good morning, Your Honors. [00:43:58] Speaker 05: May it please the court. [00:43:59] Speaker 05: My name is Sarah Buckley, appearing on behalf of EPA. [00:44:02] Speaker 05: I plan to address why EPA correctly concluded that the automatic exemptions, directors discretion and overbroad enforcement discretion provisions and the affirmative defenses at issue here are inconsistent with fundamental Clean Air Act requirements. [00:44:18] Speaker 05: My colleague David Kaplan will then address why EPA appropriately exercised its zip call authority to address those legal deficiencies. [00:44:27] Speaker 05: In 2008 and in 2014, [00:44:29] Speaker 05: This court interpreted the relevant statutory language here and determined that when EPA establishes an emission limitation, these exemptions and affirmative defenses are inconsistent with Clean Air Act requirements. [00:44:45] Speaker 05: EPA is now taking the reasonable position that the same conclusion holds when states establish emission limitations in their SIPs. [00:44:54] Speaker 05: I'd like to take this in three parts. [00:44:56] Speaker 05: to address EPA's determination that exemptions and SIPs render emission limitations unlawfully discontinuous and unenforceable, and that as in Sierra Club, the general duty provisions that petitioners have cited here do not remedy that discontinuity. [00:45:12] Speaker 05: Then I'd like to address the conditional exemptions like director's discretion and overbroad enforcement discretion provisions allow state directors to unilaterally immunize excess pollution from federal enforcement. [00:45:26] Speaker 05: And finally, that affirmative defenses, as this court concluded in NRDC, unlawfully impinge on the jurisdiction of federal courts to determine liability and assess appropriate relief, no matter whether it is EPA establishing an emission limitation or states. [00:45:42] Speaker 05: So first on exemptions, I think the court is fairly familiar that these provisions essentially say that excess emissions during certain times are not violations of [00:45:53] Speaker 05: and otherwise applicable emission limitation. [00:45:57] Speaker 05: A good example comes from the West Virginia code that states that the visible emission standards set forth in section three shall apply at all times except in periods of startup shutdowns or malfunctions. [00:46:08] Speaker 07: So can I start you off on this part of the argument just by trying to understand the context in one particular respect, which is suppose that I thought that [00:46:22] Speaker 07: Nothing in the act actually requires a SIP to contain, requires every SIP to contain an emission limitation. [00:46:32] Speaker 07: Just assume that for purposes of the question for now. [00:46:36] Speaker 07: Then why does it matter if a particular emission limitation is discontinuous? [00:46:43] Speaker 05: Yes, Your Honor. [00:46:44] Speaker 05: Here, the important point is that these states have selected emission limitations as a tool for regulating here. [00:46:52] Speaker 05: and all of the provisions that EPA identified in this zip call are emission limitations. [00:46:57] Speaker 05: EPA is simply saying that when you have selected an emission limitation as your strategy to attain the next or to meet other requirements of the act, that those emission limitations must be consistent with section 302K and must be continuous. [00:47:14] Speaker 07: But why, I guess I don't understand why, because unless you can say that the emission limitation under the language of the statute [00:47:23] Speaker 07: is necessary or appropriate to meet the applicable requirements, then why does it matter that there's an emission limitations that discontinuous? [00:47:32] Speaker 07: I mean, for example, suppose that the state just thought in the SEP that [00:47:37] Speaker 07: Yeah, we have this thing and you could call it an emission limitation, you could call it emission reduction, you could call it any, we don't care what the terminology is. [00:47:44] Speaker 07: We just think that it makes sense to have this. [00:47:47] Speaker 07: And we don't think it needs to be continuous. [00:47:49] Speaker 07: We think it makes sense to have this, including periods of discontinuity as is specified in our SIP and you approve the SIP. [00:47:56] Speaker 07: And that's the grounds on which you approved it. [00:47:59] Speaker 07: But now you're saying, well, we have this thing that you think we called an emission limitation and therefore it has to meet some definition of what an emission limitation is, but there's nothing further that EPA did to say, and that emission limitation actually is necessary to meet the applicable requirements of this chapter. [00:48:21] Speaker 07: It just said, you have a thing you call an emission limitation and it's discontinuous, ergo, [00:48:25] Speaker 07: there's a problem without tethering it to whether it's in fact necessary to meet the applicable requirements of the chapter. [00:48:33] Speaker 05: Well, Your Honor, in some programs under the Clean Air Act, it may be the case that an emission limitation as the control control strategy is required, for instance, to meet substantive standards under Part D, prevention of significant deterioration, etc. [00:48:48] Speaker 07: Also, if we were to take such a- It could be, and I'm sorry to cut you off, and I wanna hear what the also is, but just to know, just so you know what I'm thinking. [00:48:56] Speaker 07: Yeah, I think it could be that an emission limitation is necessary. [00:48:59] Speaker 07: It very well could be, and EPA definitely could explain why a particular emission limitation in a SIP is necessary. [00:49:05] Speaker 07: I guess my question is, without that subsequent explanation, why is it enough just to say that an emission limitation is discontinuous? [00:49:13] Speaker 07: Because it leaves, at least me wondering, [00:49:18] Speaker 07: Why then have we established that there's a problem here because we don't know that this particular emission limitation is in fact necessary to meet the applicable requirements of this chapter? [00:49:30] Speaker 05: I think there may be a legal response and a practical response there. [00:49:33] Speaker 05: And the legal response first is that if we were to take such a capacious view of the term emission limitation, then we would effectively read out of the statute any meaning given to the other terms. [00:49:46] Speaker 05: such as a control measure. [00:49:49] Speaker 05: If emission limitation and control measure are the same thing, why did Congress use separate terms and why did Congress place such emphasis on what an emission limitation must do? [00:50:02] Speaker 05: It must limit the quantity, rate, or concentration of pollution at a source on a continuous basis. [00:50:11] Speaker 05: The practical response is that [00:50:14] Speaker 05: Oftentimes in determining whether a state's plan does meet the NACs or meet other substantive requirements of the Clean Air Act, the state and EPA rely on modeling. [00:50:26] Speaker 05: And that assumes that an emission limitation applies on a continuous basis. [00:50:32] Speaker 05: And because some of these exemption provisions, particularly director's discretion, we're not able to predict how often [00:50:41] Speaker 05: these events might happen and might excuse the emissions. [00:50:44] Speaker 05: And we don't know how much of the emissions might be excused when the provision is unbounded, as many of these are. [00:50:51] Speaker 06: Does reporting not... I'm sorry, I didn't mean to talk over you, Chief. [00:50:57] Speaker 06: You go ahead, because you're on a line of question. [00:50:58] Speaker 06: Go ahead and finish it. [00:51:01] Speaker 07: Then one more, and then I'm sorry, sorry to stay on this. [00:51:05] Speaker 07: Do you acknowledge that a SIP could contain [00:51:10] Speaker 07: something that I'll call an emission limitation that's not necessary to meet the applicable requirements of this chapter. [00:51:19] Speaker 05: I think that a SIP could contain an emission limitation that a state has selected as its control strategy to address, you know, NAICS attainment. [00:51:29] Speaker 05: But every emission limitation contained in a state SIP is there to address some requirement of the Clean Air Act where an emission limitation [00:51:38] Speaker 05: is not a part of the SIP. [00:51:40] Speaker 05: EPA actually recognized from this action and did not call, did not issue a SIP call for, for instance, sources that were not included in a state SIP, which is the state's representation of how it's going to attain the NACs and meet other requirements of the Clean Air Act. [00:51:57] Speaker 06: That was like North Carolina or something. [00:51:58] Speaker 06: It was a case with that, right? [00:52:00] Speaker 05: It was South Carolina and DC. [00:52:04] Speaker 06: I mean, I guess my understanding is that the states don't include limitations for fun. [00:52:09] Speaker 06: They include them because they are part of what's necessary and appropriate to meet the requirements of the Clean Air Act. [00:52:15] Speaker 05: Yes, Your Honor, that's correct. [00:52:17] Speaker 05: And when a state has selected that strategy as a part of, you know, encompassed in its discretion of how to attain the act, then that strategy must comply with the requirements of the Clean Air Act. [00:52:32] Speaker 09: Now I'm not [00:52:33] Speaker 09: Now I'm not sure I followed because your answer to Judge Pillard seems different than your answer to the chief. [00:52:39] Speaker 09: The chief said, could there be a limitation that's not necessary to attaining a NAC? [00:52:45] Speaker 09: And I wasn't sure if you said yes or no. [00:52:48] Speaker 09: And then to Judge Pillard, who said, I think, could there be a limitation that's not necessary, that's just there for fun? [00:52:55] Speaker 09: You said no. [00:52:56] Speaker 09: So is the answer no? [00:52:58] Speaker 05: Right, Your Honor, I'm sorry. [00:52:59] Speaker 05: I believe the answer is no, because the state has selected an emission limitation to meet some requirement of the Act. [00:53:07] Speaker 05: That might not necessarily be one of the stringency requirements, like backed or racked, but it nevertheless has selected that strategy to meet, for instance, NAICS attainment. [00:53:19] Speaker 05: If it does not need that emission limitation for NAICS attainment, it hasn't submitted it in its SIP and EPA [00:53:25] Speaker 05: you know, has no qualms with whether or not that emission limitation has an exemption or not. [00:53:30] Speaker 06: Can we back up for a minute, Ms. [00:53:31] Speaker 06: Buckley? [00:53:32] Speaker 06: How do you respond to industry's claim that EPA just didn't initiate these SIP calls as a result of any pressing concerns regarding the adequacy of the affected SIPs to achieve the NOx? [00:53:45] Speaker 06: And the state says the SIP calls do not purport to improve air quality. [00:53:51] Speaker 06: They say in the SIP call, EPA did not set out to address threats to air quality. [00:53:59] Speaker 06: So is that right? [00:54:01] Speaker 06: And if so, what is the EPA doing here? [00:54:04] Speaker 05: Well, the EPA first line here is ensuring that state SIPs comply with the requirements of the act. [00:54:11] Speaker 05: Those requirements are directed at ensuring that air quality standards are met, that the health-based standards of the NACs are protecting health and are not jeopardized by, as you said, Judge Pillard, [00:54:25] Speaker 05: thousands of tons of pollution belching out of facilities without an emission limitation and without enforcement recourse, you know, the state director's discretion. [00:54:36] Speaker 06: So the, you disagree that EPA is not setting out to address threats to air quality in your view. [00:54:44] Speaker 06: They are, I guess, maybe this is just about that. [00:54:47] Speaker 06: The point that Mr. Esray was making where the focus is not on [00:54:53] Speaker 06: demonstrating shortfalls in air quality in particular regions or states, it's looking at the air quality architecture that the Act requires and seeing that it is in good repair. [00:55:08] Speaker 06: The legal architecture, the SIPs. [00:55:12] Speaker 05: That is correct as far as it goes, Judge Pillard, in that the legal architecture of the SIPs is important to achieving [00:55:19] Speaker 05: the substantive goals of the act. [00:55:22] Speaker 06: Now, industry says all the states here submit demonstrations, they've attained the NACs. [00:55:26] Speaker 06: And something you said about the assumption in modeling that steady state is the level of emissions. [00:55:36] Speaker 06: Is there not, when states are reporting their emissions, if you're seeking information from the states, does that not reflect also the [00:55:50] Speaker 06: uncontrolled emissions during SSM events? [00:55:53] Speaker 05: Not necessarily, Your Honor. [00:55:55] Speaker 05: The NACs are calculated through a complex group of data inputs that I honestly could not explain here today. [00:56:04] Speaker 05: But there's a couple of important practical points about these events. [00:56:10] Speaker 05: One, that these exemption events or malfunctions or the exercise of discretion, those [00:56:18] Speaker 05: may in many cases obviate record keeping and monitoring requirements. [00:56:23] Speaker 05: So the effect of the exemption or the effect of the exercise of a director's discretion would be to eliminate those requirements for the event that's at issue. [00:56:33] Speaker 05: And then second, just as the nature of SSM is it renders some of the monitoring technology that is in place at these plants, it makes it not work. [00:56:45] Speaker 05: So we are not getting data from these periods that could be put into that complex equation that comes out with Naxotainment. [00:56:56] Speaker 06: And how do you respond to Mr. Frye's basic point that these events are by definition unpreventable and unpredictable and [00:57:07] Speaker 06: So, you know, and that the states do have provisions that they're going to do their best, you know, keep them short, use best practices. [00:57:19] Speaker 06: What more does EPA want? [00:57:22] Speaker 05: I think I have three responses to that, Judge Pillard. [00:57:26] Speaker 05: First is that I think Mr. Fry is referring only to malfunction events, because startup and shutdown, although they are not [00:57:34] Speaker 05: steady state operations. [00:57:37] Speaker 05: They are normal modes of operation for which you could write an emission limitation. [00:57:44] Speaker 05: EPA acknowledged in its rulemaking here in its preamble that states don't need to use the same numerical standard. [00:57:54] Speaker 05: It doesn't have to be a continuous standard that is the same across all modes of operations. [00:57:59] Speaker 05: and that it does not need to be a numerical standard either to the extent that that is not attainable during periods of startup and shutdown. [00:58:06] Speaker 05: So for the M part of SSM, if it is the case that the events are truly unpredictable, cannot be prevented through the exercise of good practices, then [00:58:27] Speaker 05: This court has has told EPA and NRDC that that can be addressed through the exercise of judicial discretion and weighing equitable factors in determining what appropriate relief might be. [00:58:43] Speaker 05: In addition, this court in US Sugar acknowledged that for those malfunction periods, it is a reasonable approach to say that those that can be dealt with through the exercise of enforcement discretion. [00:58:56] Speaker 05: those are two ways of addressing this problem of malfunction events. [00:59:01] Speaker 05: I think there was a third. [00:59:04] Speaker 09: They would be subject to enforcement for missions that they could not reasonably avoid. [00:59:11] Speaker 05: If the three parties that Congress has authorized to bring enforcement actions under the Cleaner Act, the state or EPA or citizen groups, [00:59:21] Speaker 05: were to decide to bring an enforcement action, then they would be subject to enforcement. [00:59:27] Speaker 06: Right, and they might have to pay penalty. [00:59:29] Speaker 06: That's a necessary evil of what you're doing and internalize the costs, right? [00:59:34] Speaker 05: Internalize the costs or, you know, use even better operational practices. [00:59:40] Speaker 06: Make sure that you're... Right, but if by hypothesis they're not available, then just... Right. [00:59:47] Speaker 05: I'm sorry, I think I missed. [00:59:50] Speaker 06: I was just saying that the penalties are in part I gather to create incentives for compliance to the extent that compliance is available, but potentially also to force the sources to internalize the costs because these are pollutants that are causing particulate matter and lead and they're harming human life and presumably the level of production [01:00:19] Speaker 06: should reflect the costs that it entails. [01:00:23] Speaker 05: Exactly, Your Honor. [01:00:24] Speaker 05: And I think there's maybe one more point on this, which is that EPA did not shut the door on the idea that a state could articulate an alternate emission limitation for a malfunction event that is sufficiently predictable in how it might play out so that the state could write a standard. [01:00:43] Speaker 06: Can you tell us a little more about that? [01:00:45] Speaker 06: Because there seems to be a certain area in the state's brief [01:00:49] Speaker 06: spends a lot of time on this there's a certain amount of sort of [01:00:52] Speaker 06: argument about characterization where EPA is saying these are loopholes, these are blank checks, these are gaps in the fence, and the states and interveners are saying there's all kinds of, you know, different looking fencing across these gaps, it's, you know, all kinds of showings are required, best practices, minimizing the time, you know, so how do we assess that? [01:01:17] Speaker 06: I guess, you know, one question, so what's your position, but also [01:01:21] Speaker 06: If there's deference, who do we defer to, the states or EPA? [01:01:26] Speaker 05: Well, in interpreting the requirements of the Clean Air Act. [01:01:30] Speaker 05: Of the SIPs. [01:01:31] Speaker 05: How the SIPs interact and what they actually entail. [01:01:37] Speaker 05: Right. [01:01:37] Speaker 05: Well, EPA is exercising its expertise as the regulatory entity to determine whether these SIP provisions do, in fact, create a continuous emission limitation. [01:01:50] Speaker 05: And I think it's important to note with these general duty provisions that they are very varied. [01:01:56] Speaker 05: And so the problems with them vary as well. [01:01:59] Speaker 05: But if we're talking about a generic nebulous general duty that is located elsewhere in the act, it is something that applies generically and thus it applies without regard to what the underlying emission limitation that is subject to the exemption is. [01:02:15] Speaker 05: So it does not purport to be a part of that emission limitation. [01:02:20] Speaker 05: I think it's important to note, too, that a general duty can coexist with an emission limitation, as it did in the emission limitation at issue in Sierra Club. [01:02:33] Speaker 05: But what EPA is saying here, consistent with what this court said in Sierra Club, is that there must be an emission limitation at all times. [01:02:40] Speaker 05: And thus, if the state believes that the principles articulated in the general duty serve to fill the gap [01:02:48] Speaker 05: of that emission limitation, then the state can make that clear. [01:02:52] Speaker 05: So long as two other factors are present. [01:02:56] Speaker 05: So first that it has to be enforceable. [01:02:59] Speaker 05: So in terms of things like generally use good judgment, you know, that's articulating a standard of care and not something that the source actually has to do. [01:03:10] Speaker 05: And that, you know, a regulatory party, an enforcing party [01:03:15] Speaker 05: could say the source did not do that thing during this time, therefore they violated their emission limitation. [01:03:20] Speaker 05: And then the second part is that these gap fillers, these alternate emission limitations have to comply with any substantive stringency standard that might apply for that source and that pollutant. [01:03:32] Speaker 05: And these general duty provisions that apply generically, the state has not articulated that as a part of its, for instance, [01:03:41] Speaker 05: racked or backed standard for that source and that pollutant. [01:03:46] Speaker 05: And so for those reasons, EPA found that the general duty provisions for each of these SIP called provisions or the general duty provision that might apply in these SIPs do not form an alternate emission limitation. [01:04:02] Speaker 06: And are there other states that have submitted that aren't petitioners here that have submitted, for example, interpretive letters explaining [01:04:10] Speaker 06: these kinds of issues or does it have to be in the SIP? [01:04:14] Speaker 05: EPA's position in the rulemaking is that interpretive letters are acceptable, but they have to exist at the time that the SIP is presented to EPA for approval so that EPA and the public know that that is supposed to be the meaning of the terms at the time. [01:04:31] Speaker 05: They can't after the fact. [01:04:35] Speaker 05: come in to legitimize a provision that might not otherwise meet Cleaner Act requirements. [01:04:43] Speaker 09: I took one of your general duty provision arguments to be that sometimes there will be specific stringency requirements and the general duty provisions would be [01:05:00] Speaker 09: insufficient in those instances. [01:05:03] Speaker 09: Did EPA discuss which general stringency, sorry, did EPA discuss which stringency requirements each general duty provision failed? [01:05:17] Speaker 05: No, Your Honor, because that would really depend on the source category that the emission limitation operates on and the pollutant being controlled by that specific emission limitation. [01:05:29] Speaker 05: And beyond that, the particular circumstances of each state, which criteria pollutants it is in attainment for or non-attainment for, how severe its attainment or its non-attainment is, and then factors relating to new source review and modification and constructing new sources. [01:05:51] Speaker 09: That's helpful. [01:05:52] Speaker 09: Let me ask one clarification question about your answer to one of Judge Pillard's last questions. [01:06:00] Speaker 09: So let's say there's the most generic of all the general duty provisions and a citizen suit says that a polluter has violated that generic general duty provision. [01:06:18] Speaker 09: Can the polluter say to the court, well, Ms. [01:06:21] Speaker 09: Buckley told us that that's not an enforceable general duty provision. [01:06:28] Speaker 05: Well, no, your honor. [01:06:30] Speaker 05: EPA's assessment here is that the gap filling alternate emission limitation has to be legally and practically enforceable. [01:06:38] Speaker 05: And so in assessing whether on its face these provisions could be practically enforceable, EPA is saying, we don't think this makes the cut. [01:06:46] Speaker 05: If citizen groups want to go and make a case that it does make the cut and that they can articulate a standard for why a source has violated that, this doesn't shut the door on that. [01:06:57] Speaker 09: But it sounds like now you're saying they might be enforceable. [01:07:01] Speaker 09: And if they might be enforceable and might not be enforceable, then the call starts to look kind of speculative, at least as applied to these specific provisions. [01:07:12] Speaker 05: I think EPA addressed that it thinks it is unlikely that these general duty provisions would be enforceable or would meet substantive stringency standards in order to serve as the gap-filling measure. [01:07:27] Speaker 05: And I think that that conclusion was reasonable. [01:07:31] Speaker 05: And in addition, there are some perhaps clearer cut and dried unenforceability problems with some of the general duty provisions that issue here. [01:07:43] Speaker 05: For instance, that provisions that provide that you cannot violate the NACs are contrary to the concept that you [01:07:57] Speaker 05: citizens can't sue a source directly for a violation of the NACS, which makes sense because a source's ability to attain the NACS or the source's role in attainment of the NACS is defined only by the control measures that the state applies to that source. [01:08:13] Speaker 05: And so in the absence of a specific control. [01:08:15] Speaker 06: But can the citizen sue the state for its SIPs inadequacy? [01:08:20] Speaker 05: The citizen can sue the state for [01:08:23] Speaker 05: for not meeting a commitment in the SIP that was necessary to achieve the next. [01:08:29] Speaker 06: So if we had the same lack of continuity arguments and enforcement discretion arguments and affirmative defense arguments as here, if you were to lose this case and citizens were to turn around and say, look, these holes in the fence, these SSM [01:08:52] Speaker 06: failure to apply enforceable standards to SSM is rendering the SIP inadequate, unlawful, and violation of the Act. [01:09:02] Speaker 06: How would that work? [01:09:04] Speaker 06: It seems like given that [01:09:07] Speaker 06: the SIPP applies to the state as a whole, it would be exceedingly difficult to identify SSM events as the reason for exceedances. [01:09:20] Speaker 06: It seems like there's incredibly complicated causal problems there. [01:09:25] Speaker 06: Can you walk me through [01:09:27] Speaker 06: how one might do something more concrete to address this problem or a set of things that would be more concrete, whether on the part of EPA or on the part of citizens, if you were to lose this case? [01:09:43] Speaker 05: Oh, I thought I was following. [01:09:44] Speaker 05: Let me see if this answers your question, Your Honor. [01:09:47] Speaker 05: EPA discussed the three factors that it used to assess whether general duty provisions adequately fill the gap. [01:09:56] Speaker 05: That's at JA 194 to 95 and 261 to 62. [01:10:02] Speaker 05: And therein it stated that the gap filler must be a clearly stated component of the emission limitation. [01:10:09] Speaker 05: It must meet applicable levels of control stringency standards and must be legally and practically enforceable. [01:10:15] Speaker 05: EPA then [01:10:16] Speaker 05: also set out seven factors that it prospectively suggested that states should consider when developing an alternate emission limitation to plug that gap. [01:10:30] Speaker 06: What I'm saying is if putting aside this suit, [01:10:35] Speaker 06: if in fact the NACs were exceeded in a relevant area of a state and citizens who lived there wanted to sue and say, look, this is not working. [01:10:50] Speaker 06: And if they identified, let's say correctly by hypothesis that SSM events were a big contributor [01:10:58] Speaker 06: How could that be proved in a citizen suit, given that there are myriad sources with myriad different periods of function? [01:11:09] Speaker 06: I'm just trying to imagine as a plaintiff, how would one even begin to scale that hill? [01:11:18] Speaker 05: I agree, Your Honor, that it is a difficult to perhaps impossible problem. [01:11:26] Speaker 05: I think somewhat to this court's cases and EPA's guidance about transport and how states can show that particular sources in other states contribute to violations of their NACs and the complexity there and the reliance on a number of factors. [01:11:48] Speaker 05: But I think that the important point here is that these difficulties show that [01:11:54] Speaker 05: the general duty provisions don't do what the Clean Air Act says that they need to do to constitute emission limitations. [01:12:02] Speaker 05: They are not enforceable and they do not provide a continuous reduction, continuous limitation on the quantity rate or concentration of pollutants. [01:12:15] Speaker 05: And I see that my time has expired. [01:12:17] Speaker 07: Can I just ask you one question? [01:12:18] Speaker 07: So on the continuity point, by hypothesis, if we agreed with you on the continuity point, then that's alone enough on automatic exemptions, because that's the whole rationale for the SIP calls on the automatic exemptions. [01:12:33] Speaker 07: And then on the director's discretion exemptions, that's one component. [01:12:41] Speaker 05: Yes, your honor, the lack of continuity is sufficient for you to find in our favor on the director's discretion provisions as well, although EPA has additional arguments. [01:12:53] Speaker 05: One, that there's a particular enforceability problem here where a state can unilaterally immunize excess emissions from EPA or citizen suit enforcement. [01:13:04] Speaker 05: And that's contrary to the multifaceted enforcement scheme that Congress set out. [01:13:09] Speaker 05: And second, that these directors discretion provisions that are unbounded, that essentially say your emission limitation is X unless we say it's not X, essentially are a revision of the SIP that has gone through a public process that has been approved by EPA. [01:13:27] Speaker 06: Is that because you're assuming that the directors discretion removes the counting of those emissions from what's reported as admitted under the NAGs? [01:13:39] Speaker 06: or something broader? [01:13:40] Speaker 05: I think broader, Your Honor, although that is a problem. [01:13:45] Speaker 05: As I noted, the monitoring and record-keeping requirements might be waived during that time. [01:13:51] Speaker 05: But also, something has gone through the public process set out in the Clean Air Act. [01:13:57] Speaker 06: Although the public process includes the exemptions. [01:14:01] Speaker 06: That's what you're looking at. [01:14:04] Speaker 05: Right. [01:14:04] Speaker 05: Well, I guess the fact that EPA [01:14:08] Speaker 05: approved the thing does not mean the thing is necessarily consistent with Clean Air Act requirements. [01:14:13] Speaker 05: And that's what EPA has found here because these are so unbounded that EPA is not able to properly assess how frequently the provision would be invoked, how much pollution the provision could potentially excuse, how practically, what the worst case scenario would be [01:14:37] Speaker 05: under the exercise of that discretion, but that is so substantial that it could operate as a revision of the SIP. [01:14:47] Speaker 07: I guess what I don't understand about that is it seems like the argument would be that the possibility in an exemption, as I understand EPA's logic, the possibility of the exemption if it's a broad ranging exemption could enable the state to act in contravention of what's in the SIP. [01:15:06] Speaker 07: And it's just, I don't conceptually understand that when the possibility of exemption is in the SIP. [01:15:12] Speaker 05: Right, well, I think the SIP is based on many assumptions about the emissions that could result. [01:15:21] Speaker 05: And without bounds on the exercise of the discretion, there's a measurability problem to determine how much emissions could result. [01:15:33] Speaker 06: So I thought it was actually helpful. [01:15:34] Speaker 06: It sounded like the chief was starting to ask about the, so there's the continuity, there's the continuity argument. [01:15:42] Speaker 06: There's the explicated statutory factors to determine remedies argument. [01:15:51] Speaker 06: And then there's the statute setting out a process and procedure for amending [01:15:59] Speaker 06: a SIP, and the continuity argument applies to all of the called provisions. [01:16:06] Speaker 06: Is that right? [01:16:07] Speaker 06: Including the affirmative defenses? [01:16:09] Speaker 05: It applies to the affirmative defenses insofar as it addresses an argument that the affirmative defenses are, in fact, an element of the emission limitation. [01:16:21] Speaker 05: So that then would be within state's discretion. [01:16:26] Speaker 05: our response to that is, well, if that's the case, then that causes a continuity problem because again, it immunizes excess emissions to which that defense applies from enforcement. [01:16:40] Speaker 06: Okay, but if it's not an element of the limit itself, then the enforcement, the affirmative defense is invalid. [01:16:52] Speaker 05: As a function of [01:16:54] Speaker 05: Section 7413 grant of jurisdiction to the courts to determine right 7413 E. [01:17:01] Speaker 05: 7413 B is the, the grant of power and then the factors factors are later in that section. [01:17:11] Speaker 05: Yes. [01:17:13] Speaker 06: Right. [01:17:14] Speaker 06: And that's NRDC, the rationale of NRDC. [01:17:17] Speaker 06: So I'm just trying to correlate, like, if we were to agree with you on continuity, we also need to reach the 7413B argument. [01:17:30] Speaker 06: Would we also need to reach the process for amending SIPs argument? [01:17:36] Speaker 05: I don't think it's necessary to reach that argument. [01:17:40] Speaker 06: And if we disagree with that argument, how does that affect [01:17:45] Speaker 06: Does that curtail your ability to prevail? [01:17:51] Speaker 05: No, Your Honor, because sort of regardless of whether it's conceived of as a revision of the SIPP or not, it is still creating a discontinuity. [01:17:59] Speaker 05: It is allowing excess emissions over the otherwise applicable emission limitation. [01:18:06] Speaker 05: And it is preventing the enforcement of that provision by [01:18:11] Speaker 05: EPA or citizen suits. [01:18:13] Speaker 05: So the discontinuity is evident in that break in enforceability too. [01:18:19] Speaker 07: So I guess discontinuity, if we were to agree with you, is enough for the automatic exemption. [01:18:26] Speaker 07: There's more because it's the only thing, as I think it's essentially the only thing that underlies the calls based on automatic exemptions alone. [01:18:36] Speaker 07: For director's discretion, there's a few arguments that underlie the call, one of which is discontinuity. [01:18:41] Speaker 07: And it seems like the point you're making is that one's independently sufficient. [01:18:44] Speaker 07: And then for, [01:18:47] Speaker 07: enforcement discretion, though, and I'm not sure how much that applies independently of director's discretion, maybe only with one state or maybe there's more than that, but I didn't understand discontinuity to be part of that. [01:19:00] Speaker 05: Right, Your Honor. [01:19:00] Speaker 05: I think the problem is better characterized as enforceability in that case. [01:19:05] Speaker 05: It's similar to the director's discretion provision in that it purports to say that the emissions are excused from [01:19:13] Speaker 05: Um, from EPA. [01:19:16] Speaker 07: Right. [01:19:17] Speaker 07: So that's a separate argument from discontinuity. [01:19:19] Speaker 07: Yeah. [01:19:19] Speaker 07: That's, that's what sustains what one would call enforcement discretion, independent of directors discretion. [01:19:27] Speaker 07: And then the last category is affirmative defense or affirmative defense. [01:19:31] Speaker 07: You've got your kind of just NRDC argument. [01:19:34] Speaker 05: Exactly. [01:19:35] Speaker 05: Right. [01:19:35] Speaker 07: If that's, if that's enough for affirmative defense and that case, that is enough to sustain the calls on affirmative defense. [01:19:41] Speaker 05: Yes, your honor. [01:19:42] Speaker 05: And on affirmative defenses, the important point is that there's nothing in 110 or in 7413 that suggests that the fact that the state has created an affirmative defense should lead this court to treat it any differently than they treated the defense in NRDC. [01:19:58] Speaker 07: Yeah, I was just trying to understand the overall architecture and how much the discontinuity feature affects the various calls [01:20:06] Speaker 07: And how, because at some point you got to add up to 30, how many ever calls it was 30 by 30 34. [01:20:13] Speaker 05: I don't remember, but, um, 36 states originally, um, there are locality ones as well. [01:20:18] Speaker 05: I think it might've come out to about 45 originally. [01:20:21] Speaker 05: We, um, the accounting of that is in the 28 day letter that we filed yesterday. [01:20:29] Speaker 09: Okay. [01:20:29] Speaker 09: I have a sort of an obscure fact and. [01:20:36] Speaker 09: And then I have a question related to what our court's remedy might look like if we go down a certain path. [01:20:44] Speaker 09: And then I have a third question that's more theoretical. [01:20:48] Speaker 09: And so I'll start with the fact one. [01:20:52] Speaker 09: Do any cold states have at least two continuous emission limitations? [01:21:02] Speaker 09: If you don't know, that's okay. [01:21:07] Speaker 05: I don't know specifically, but I would note that the SIP call was directed at specific emission limitations. [01:21:15] Speaker 05: So I guess I would have to assume that the state has more than the, you know, between one and I think no more than 10 provisions that were called for each state, if that makes sense. [01:21:28] Speaker 09: I think so. [01:21:31] Speaker 09: The remedy type question is, let's say that we agree with you [01:21:36] Speaker 09: about the affirmative defense related to monetary penalties provisions. [01:21:43] Speaker 09: We think that they're illegal. [01:21:46] Speaker 09: But let's say we think the rest are legal. [01:21:52] Speaker 09: What should we write? [01:21:53] Speaker 09: What should our order look like? [01:21:57] Speaker 05: I suppose that would be an order denying the petitions with respect to the, I believe, [01:22:06] Speaker 05: 11 states that had unlawful affirmative defense provisions and them granting the petition with respect to the other SIP calls. [01:22:16] Speaker 05: I guess what I'm trying to get at here is that the remedy would be SIP call specific and the state-by-state accounting is available, I did write it down, in the proposal at JA 33 and in the final at JA 241. [01:22:37] Speaker 06: In the numbers that you're using, sorry to interject, Judge Walker, in the numbers that you're using, do we award the remedy to states that never petition? [01:22:47] Speaker 06: So my notes tell me that there were only seven jurisdictions that challenge affirmative defenses. [01:22:58] Speaker 05: I think that's correct, Your Honor. [01:23:00] Speaker 06: I thought you said 11. [01:23:01] Speaker 05: So seven petitions, but yes, 11 states. [01:23:05] Speaker 05: Some of those states, okay, this might start to get complicated. [01:23:08] Speaker 05: Some of those states have, as we stated in our 28-J letter, now submitted SIP provisions that have been accepted by EPA through a final federal register notice. [01:23:21] Speaker 05: So that knocks out, I think, at least three on affirmative defenses. [01:23:28] Speaker 05: specifically, where you couldn't. [01:23:31] Speaker 06: But just generally, we would only be referring to remedy with respect to the states that petitioned. [01:23:39] Speaker 05: I might throw this question to Mr. Fry as far as what remedy industry petitioners have asked for and where they have shown that they have standing to ask for that remedy. [01:23:55] Speaker 09: He's probably going to want his [01:23:57] Speaker 09: big as possible. [01:23:59] Speaker 09: So why shouldn't he get that? [01:24:02] Speaker 05: Well, I think you shouldn't get that on as a matter of the merits. [01:24:07] Speaker 06: And because as a matter of the architecture of the issues, you're you're saying that the fact that the states aren't in here doesn't mean that they're that they're the zip calls aren't being challenged by industry. [01:24:16] Speaker 06: I take I take that. [01:24:17] Speaker 06: It's an important point. [01:24:19] Speaker 06: Yes, that's that's so you had I'm sorry, back to Judge Walker's questions, one on fact one on remedy and [01:24:27] Speaker 09: I had a theoretical one. [01:24:29] Speaker 09: I think you would say that at least some of the called SIPs are not unambiguously inadequate. [01:24:48] Speaker 09: You're using your Chevron step two general agency discretion to exercise your exercising agency discretion. [01:24:57] Speaker 09: Am I right so far? [01:25:00] Speaker 05: I think you're right, Judge Walker, insofar as EPA's application of its interpretation, which it believes is the best interpretation of the act, application to particular SIP calls is entitled to deference. [01:25:18] Speaker 09: My question is, how can something be substantially inadequate? [01:25:25] Speaker 09: when it's inadequacy is ambiguous. [01:25:30] Speaker 05: And I hate to demure on that, but I believe that my colleague, Mr. Kaplan is prepared to answer that question. [01:25:37] Speaker 07: Can I ask you one final question along the lines of trying to figure out which arguments affect which SIPs and what we'd end up doing? [01:25:45] Speaker 07: Just take the converse and suppose, I'm just trying to isolate what affects what. [01:25:50] Speaker 07: Suppose that we disagreed with you on discontinuity. [01:25:54] Speaker 07: but agreed with you on the enforceability points about the provisions that operate to deny EPA and citizen suit enforceability. [01:26:08] Speaker 07: Then what? [01:26:10] Speaker 05: Then that would certainly resolve in our favor the director's discretion and overbroad enforcement discretion provisions. [01:26:17] Speaker 05: But I believe that there's an enforceability aspect to the exemption issue as well. [01:26:22] Speaker 05: in that if there is no applicable emission limitation at that time, then excess emissions or a provision that operates to state that excess emissions are not violations of the applicable emission limitation, then that means that there's nothing in place at that time that is enforceable. [01:26:41] Speaker 05: And under section 110A2A, it does state that there must be an enforceable emission limitation. [01:26:47] Speaker 07: But I guess I didn't see in the rule anywhere or in your brief, as far as I recall, that the automatic, you're going to automatic exemption there, that that calls were grounded in anything other than discontinuity. [01:27:01] Speaker 07: But maybe I might have just missed it. [01:27:05] Speaker 05: Off the top of my head, Your Honor, I can't point you to the pages of our brief, but I think enforceability and the fact that it must be an enforceable emission limitation is a part of the package of our argument. [01:27:16] Speaker 07: is just necessarily there. [01:27:17] Speaker 05: Yes. [01:27:20] Speaker 06: Can I ask you, this is really going back to the continuity argument textually under 110A2A, it talks about enforceable limitations and other control measures, means or techniques. [01:27:41] Speaker 06: And then in the definition, [01:27:44] Speaker 06: defines emission limitations and emission standards to mean requirements, including requirements relating to operation or maintenance that assure continuous reduction and any design, equipment, work practice, or operational standard [01:28:04] Speaker 06: promulgated in this chapter. [01:28:05] Speaker 06: And I'm just wondering about the relationship, as you understand it, between design, equipment, work practice, or operational standards and the other control measures referred to in 110A2A. [01:28:18] Speaker 06: I don't want to go on too long, but just to highlight a little bit my question. [01:28:27] Speaker 06: The question whether continuity is really always required of the types of measures that are in there to take limit emissions seemed to me at first quite ambiguous because [01:28:44] Speaker 06: 110A2A refers to emissions limitations, which are defined to include the continuity requirement, but it also refers to other control measures which aren't defined to include the continuity requirements. [01:28:55] Speaker 06: I thought, oh, well, the other control measures don't have to be continuous. [01:28:59] Speaker 06: But then when you look at how that term is used, other control measures means or techniques, parentheses, [01:29:05] Speaker 06: Incentives fees marketable permits auction of emission rights, it actually sounds like the other control measures are in a way overlays or ways of meeting the limitations, whereas in the definition section. [01:29:21] Speaker 06: You have both requirements relating to operation or maintenance, you know, a filter, let's say, but you also have these more qualitative requirements like design, equipment, work practice, or operations standards. [01:29:34] Speaker 06: So that makes me think that everything actually is an emissions limitation under 110. [01:29:40] Speaker 06: And that the other control measures are things that may be ways that a SIP provides to ease or provide flexibility on how to meet them. [01:29:51] Speaker 06: Like you can't have a trading system unless you know what it is you have to meet that you're trading over. [01:29:54] Speaker 06: I know that was long-winded, but I think it's really possibly at the heart of [01:30:03] Speaker 06: of the challenge to the continuity requirement as it applies to 110 assisting from 112. [01:30:13] Speaker 05: Yes, Your Honor. [01:30:13] Speaker 05: And EPA tried to grapple with this question at JA 178 to 79 and 184. [01:30:20] Speaker 05: I believe 184 describes a portion of the CFR that discusses [01:30:29] Speaker 05: types, a non-exclusive list of types of control measures, so giving more content to that term. [01:30:38] Speaker 05: But the other important point is that an emission limitation may encompass a work practice, something that isn't a numerical standard, but it must limit the quantity rate or concentration of that pollution on a continuous basis. [01:30:52] Speaker 05: And those things can coexist. [01:30:54] Speaker 05: As you said, the emission limitation, doing some work in the SIP, [01:30:58] Speaker 05: And a control measure doing other work, for instance, you know, a state can have some sort of transportation management plan that would be a control measure that helps it attain the next. [01:31:08] Speaker 06: Is that a see that's where I'm confused because you're referring to control measures as as encompassing what in the in the 302 K. [01:31:20] Speaker 06: definition is actually encompassed within emissions limitations, design, equipment, work practices, or operational standards. [01:31:30] Speaker 06: And it seems to me just textually that you have emissions limitations in 110A2A [01:31:38] Speaker 06: that includes numerical operation or maintenance standards like scrubbers or filters, and an emissions limitation is also a qualitative, encompasses a qualitative work practice design, like a clean fuel requirement, limiting duration of a shutdown requirement or what have you. [01:31:59] Speaker 06: And so under that reading, emission limitations encompassing both types or all types [01:32:07] Speaker 06: the continuity requirement applies. [01:32:10] Speaker 06: Whereas if you're reading control measures to be undefined and potentially including the kinds of measures one might use in an SSM, it seems like you've textually given away your continuity argument. [01:32:27] Speaker 06: And so as I was reading just the text of it, seems like control measures here, control measures means or techniques of meeting [01:32:36] Speaker 06: the emissions limitations would be marketable permits, auctions, that we're on a different plane when we're talking about these other control measures. [01:32:51] Speaker 05: Right, Your Honor. [01:32:52] Speaker 05: And I think the response to that is that if states were to bring a plan to EPA that contained just control measures and not emission limitations and said that this meets the requirements of the Clean Air Act, then EPA could assess that plan. [01:33:07] Speaker 05: But here the states have picked emission limitation as one element of their plan. [01:33:12] Speaker 05: And an emission limitation has to be continuous. [01:33:15] Speaker 06: And an emission limitation includes a design equipment work practice or operational standard. [01:33:22] Speaker 05: That operates to limit the quantity rate or concentration of an emission on a continuous basis at a source. [01:33:30] Speaker 07: In other words, EPA presumes, as I think 7410A2A presumes, [01:33:37] Speaker 07: that every control measure is not an emission limitation, that there's a distinction between emission limitations and control measures. [01:33:45] Speaker 05: Yes, Your Honor. [01:33:46] Speaker 07: And then the definition in 7602K is a definition of emission limitations, not of control measures. [01:33:53] Speaker 07: Even though, as Judge Pilter points out, that definition includes the terms design, equipment, work practice, or operational standards, which kind of sounds in, it could be seen to sound in control measures, [01:34:06] Speaker 07: But the framework of these provisions presuppose that there's emission limitations on one hand and control measures on the other hand. [01:34:15] Speaker 07: And you could have a state that submits a SIP that doesn't include an emission limitation at all. [01:34:22] Speaker 05: Yes, Your Honor, to the extent that that SIP would then meet requirements of the Cleaner Act. [01:34:25] Speaker 05: Yes. [01:34:26] Speaker 07: Yeah, but at least conceptually, that could be approved. [01:34:28] Speaker 07: EPA could approve that. [01:34:29] Speaker 07: And if that SIP were approved, then a continuity argument [01:34:34] Speaker 07: would kind of not make any sense because continuity only relates to emission limitations, but I'm just hypothesizing a SIP that doesn't have an emission limitation to begin with. [01:34:42] Speaker 06: That's right. [01:34:43] Speaker 06: What is the control measure other than the ones listed in the parenthetical? [01:34:48] Speaker 06: What is a control measure that [01:34:54] Speaker 06: would not be an emission limitation. [01:34:56] Speaker 06: I'm thinking like a use of clean fuel during alternative clean fuels during startup or shutdown. [01:35:03] Speaker 06: Is that an emission limitation or is that a control measure? [01:35:06] Speaker 05: I think EPA would conceive of that as an emission limitation if it has made a work practice component of that emission limitation. [01:35:16] Speaker 06: Right, because the clean fuel would be less emitting. [01:35:19] Speaker 06: What about a duration requirement? [01:35:22] Speaker 06: If you're doing startup, you have to complete it within two hours. [01:35:29] Speaker 05: Yes, Your Honor, I believe that could also be a part of the package of work practices that- Commission limitation. [01:35:37] Speaker 05: Yes, Your Honor. [01:35:41] Speaker 05: And again, I guess, oh, please go ahead. [01:35:46] Speaker 05: I jotted down a few instances that were discussed in the CFR site that again is available at JA184 discussing, I think the term is control strategies there, but you might think of emissions charges or taxes as a way of incentivizing different emissions or different pollution practices, changes in schedules or methods of operation or transportation control measures. [01:36:17] Speaker 06: What do you mean by transportation control measures? [01:36:20] Speaker 05: I believe there was a case that I reviewed. [01:36:26] Speaker 05: I want to say it was City of Arvin that was really directed at a transportation control measure. [01:36:32] Speaker 05: I suppose the state could make commitments to incentivize public transportation over use of individual vehicles, that sort of thing. [01:36:44] Speaker 07: OK, let me make sure my colleagues don't have additional questions for you, Ms. [01:36:47] Speaker 07: Buckley. [01:36:49] Speaker 07: Thank you, Mr. Kaplan. [01:36:50] Speaker 07: We'll hear from you now. [01:37:00] Speaker 03: My co-counsel has explained why the four types of SSM provisions do not comply with the applicable requirements of the statute here at issue. [01:37:12] Speaker 03: I will discuss why EPA has the authority to issue the SIP call. [01:37:18] Speaker 03: in these four instances. [01:37:20] Speaker 03: I think the first point I need to make is that EPA here is operating under section 110K5, but that the word substantial inadequate needs to be understood in the context in which EPA used it in each of these, in the SIP call action here. [01:37:37] Speaker 03: And that is specifically with regard to the third prong. [01:37:41] Speaker 03: And that third prong, your honor, is non-compliance or compliance with requirements of the act. [01:37:48] Speaker 03: And it's in this particular context that you need to understand and construe substantial inadequacy. [01:37:54] Speaker 03: You need to go one step further. [01:37:56] Speaker 03: You also need to construe all the terms together in context with what are the underlying requirements that are issue. [01:38:04] Speaker 03: And we've just had a lengthy discussion about what those elements are of continuity, courts' jurisdiction to resolve violations, [01:38:16] Speaker 03: And so I don't repeat them, but those are the particular underlying requirements against which the SSM provisions are being judged. [01:38:25] Speaker 06: Mr. Cowan, by jurisdiction, we don't really mean like subject matter jurisdiction in the sense that, you know, would only, would not be subject to Chevron deference. [01:38:35] Speaker 06: We mean like authority. [01:38:37] Speaker 03: I think that's right, Your Honor. [01:38:38] Speaker 03: I mean, it's hard. [01:38:40] Speaker 03: I look at the NRDC decision and I think that the word jurisdiction could be used in different ways. [01:38:46] Speaker 03: There is an argument that 113G is a vest the courts with exclusive, I'll use the word jurisdiction, it could be authority. [01:38:55] Speaker 06: Power, right. [01:38:56] Speaker 03: Power to make those exclusive judgments and that they can't be intruded upon. [01:39:02] Speaker 03: And so the key point though is that when you look at 110K5 and you need to look at it in the context here, and I wanna speak specifically to [01:39:14] Speaker 03: Mr. Ezrae's argument that fact finding was required as an element of the substantial inadequacy. [01:39:21] Speaker 03: And again, the reason his arguments don't fly is that they look at the words find or substantial inadequacy in out of context. [01:39:34] Speaker 03: And you need to look at them in the context of what's done here. [01:39:36] Speaker 03: And that is looking at the third prong, not the first or second prong, [01:39:41] Speaker 03: the third prong, and then you need to look at the underlying statutory requirements. [01:39:45] Speaker 03: And when you look at those underlying statutory requirements, fact-finding of the sort the state argues that EPA should have undertaken is certainly just not encompassed within those elements. [01:39:58] Speaker 03: There's no basis by which the fact-finding that the state urges is an element of making the decision as to whether or not there is [01:40:08] Speaker 03: legal deficiency with regard to these types of legal requirements. [01:40:12] Speaker 06: Mr. Kaplan, Mr. Fry had basically accused EPA of refusing to look at SIPs as a whole in making that inadequacy determination. [01:40:26] Speaker 06: And I wonder if you have any more response to that than you've given your brief. [01:40:30] Speaker 03: Yes, Your Honor. [01:40:31] Speaker 03: First off, I understand what they mean by looking at the SIP as a whole. [01:40:36] Speaker 03: I've divided three possible things that could have mean by that. [01:40:40] Speaker 03: The first is that they're saying that EPA is looking at the SSM provisions only in isolation and didn't look at other provisions that might work with them. [01:40:49] Speaker 03: And there's nothing to that argument because EPA went through notice and comment and states all and other parties had an opportunity to say, no, this works concert with this. [01:40:58] Speaker 03: And so EPA did look at the provisions as they apply in relation to the other provisions in this set. [01:41:06] Speaker 03: The other argument [01:41:07] Speaker 03: as I take it, could be that they believe that all elements of the SIP need to be non-compliant before a SIP call can be issued. [01:41:16] Speaker 03: I think that's nonsensical. [01:41:18] Speaker 03: That's their interpretation of as a whole. [01:41:20] Speaker 03: Because SIP calls are issued all the time where there is non-compliance with particular provisions. [01:41:27] Speaker 03: And not every element of the SIP needs to be out of compliance with the particular provisions. [01:41:33] Speaker 03: And almost every SIP case involves particular provisions. [01:41:37] Speaker 03: That's the magnesium case, any number of cases, the Michigan case in this court. [01:41:44] Speaker 03: The third argument, and maybe this is the one you're referring to, Your Honor, is I think they're claimed that if an area is attaining a NAICS, then you can't issue a SIP call for these kinds of legal deficiencies. [01:41:58] Speaker 03: And that's clearly wrong as well because attainment of NAICS, although important, [01:42:03] Speaker 03: is not the only requirement in the statute. [01:42:06] Speaker 03: There are numerous other statutory requirements that need to be met. [01:42:11] Speaker 03: There are increments. [01:42:11] Speaker 06: But for purposes of 110A to A, aren't they all directed at attaining the NAICS, not super attaining? [01:42:23] Speaker 06: And I thought that your argument was somewhat different, that it's extremely slow and onerous and not required that [01:42:32] Speaker 06: a violation of the NAICS be shown, but that one of the problems with the exemptions and discretion and so on is that in part, as Ms. [01:42:42] Speaker 06: Buckley said, they affect the reporting. [01:42:45] Speaker 06: And so they affect what even is considered to be the performance of the sources within the state and that the failure to [01:42:59] Speaker 06: comply with fundamental requirements is fairly assumed to threaten the NACs. [01:43:05] Speaker 06: That's not your position? [01:43:07] Speaker 03: No, that is part of our position, Your Honor. [01:43:10] Speaker 03: And I guess I think I'm understanding you to have asked a different question now. [01:43:17] Speaker 03: The issue of the difficulty to discerning what the actual impact is in terms of [01:43:27] Speaker 03: whether an exceedance resulted in air quality from a particular source and that relates to a particular SSM provision, that's real. [01:43:34] Speaker 03: Let's discuss the preamble. [01:43:37] Speaker 03: And that is real. [01:43:38] Speaker 03: And Ms. [01:43:39] Speaker 03: Buckley went into that. [01:43:41] Speaker 03: But I think that there are numerous independent requirements in the statute that apply and must continue to be complied with, regardless of whether an area does attain the max. [01:43:56] Speaker 03: There are increment requirements, there are visibility requirements, there are stringency requirements, there's any number, and the list is quite long. [01:44:05] Speaker 03: And so beyond that, once you attain, there's a whole slew of requirements you have to follow to maintain the NACs. [01:44:14] Speaker 03: So it's not just attaining, and then you get [01:44:16] Speaker 03: You get carte blanche, not at all. [01:44:18] Speaker 03: The SIPs also have to show maintaining the NACs. [01:44:21] Speaker 03: And there's a whole slew of requirements in the statute set out to ensure that that occurs. [01:44:27] Speaker 03: And PSD, a new source review, there's a number of things that apply in those regards. [01:44:36] Speaker 03: And so you cannot immunize non-compliant provisions, provisions of the, [01:44:44] Speaker 03: in the SIPP, these SSM provisions, that don't comply with fundamental Clean Air Act requirements just because there's been a attainment, because there's all these other requirements that I've mentioned. [01:44:56] Speaker 03: And so it's really a non-secret or whether or not there's been a attainment or not. [01:45:02] Speaker 03: Another point, Your Honor, is that Mr. Esray mentioned that it's a question of a harmless error. [01:45:10] Speaker 03: that there needs to be facts because otherwise we're dealing with issues, potentially dealing with circumstance of a harmless error. [01:45:17] Speaker 03: And that's not the case at all, your honor. [01:45:20] Speaker 03: Here, it's pretty clear that each of the requirements that we've been discussing, the requirements of the act are fundamental, whether or not you have a continuous requirement, whether or not you are intruding on judicial authority, things of that sort. [01:45:34] Speaker 03: And the court's case law finds that. [01:45:38] Speaker 03: And so you can discern from the, [01:45:40] Speaker 03: text of the statute, as well as from its architecture, that these are not trivial matters. [01:45:46] Speaker 09: That these are important matters. [01:45:49] Speaker 09: What's an example of a statutory misinterpretation that would be trivial? [01:45:58] Speaker 03: An instance of noncompliance? [01:46:01] Speaker 03: Well, when you say misinterpretation, [01:46:07] Speaker 09: Well, I thought you were saying in your briefing now that EPA can make a call when there's a fundamental legal error. [01:46:21] Speaker 09: And I guess I'm asking for an example of a legal error that's not fundamental. [01:46:27] Speaker 03: Your Honor, I understand your question and I'll get to that first. [01:46:31] Speaker 03: But to be clear here, there was no allegation that the [01:46:36] Speaker 03: that the types of legal requirements here aren't fundamental, that they're just trivial matters. [01:46:42] Speaker 03: But to your question, I think that's something that EPA would have to look at and evaluate in context of the CIP provision itself. [01:46:52] Speaker 03: And so there may be some aspects of the statute that are in the statute but wholly discretionary. [01:47:01] Speaker 03: Those might be candidates, but I would not want to presume to make that judgment for the first instance here. [01:47:06] Speaker 03: it would be for EPA to. [01:47:07] Speaker 06: I assume there would be myriad, you know, filing, format, timing, signature. [01:47:13] Speaker 06: I don't know. [01:47:14] Speaker 06: I mean, there must be so many things that are, I don't know, just wouldn't be about the guts of the statute. [01:47:25] Speaker 06: It doesn't seem like an unreasonable question. [01:47:28] Speaker 03: No, for sure. [01:47:29] Speaker 03: I don't think it's an unreasonable question. [01:47:31] Speaker 03: I just can't identify here. [01:47:34] Speaker 03: of any one particular statutory provision, but there could be- Let me rephrase it then. [01:47:40] Speaker 09: Instead of asking for a specific example, let's imagine that we write a sentence in this opinion that says, when it comes to the difference between a fundamental legal error and a non-fundamental legal error, the EPA has given us no limiting principle. [01:48:03] Speaker 09: I'm sure you don't want us to write that sentence. [01:48:05] Speaker 09: So why should we not write that sentence? [01:48:09] Speaker 03: So the limiting principle here, Your Honor, is that the requirement in the statute that's at issue needs to be fundamental to the integrity of the structure and the SIP process. [01:48:25] Speaker 03: And here, each of those [01:48:27] Speaker 03: statutory requirements that issue continuity, not intruding on the exclusive domain of courts, ensuring that EPA's enforcement discretion and Citizens Group enforcement discretion is not being precluded by discretionary action of the state. [01:48:46] Speaker 03: Those all go to the fundamental structure of the SIP. [01:48:51] Speaker 03: There may well be elements that are [01:48:56] Speaker 03: are not fundamental to that. [01:49:00] Speaker 03: Possibly, for example, I believe is a provision where states can voluntarily bump up themselves on their own at their own discretion to do so, but it's a provision I believe in the statute that may be a candidate for one in which [01:49:15] Speaker 03: It's left to the states. [01:49:16] Speaker 03: It's not necessary. [01:49:17] Speaker 03: It's not fundamental. [01:49:19] Speaker 03: And so it falls on the other side of the coin. [01:49:23] Speaker 07: If it's not necessary, because I take it the question here, I think, is are there legal inadequacies that are not substantial inadequacies? [01:49:33] Speaker 07: I think that's ultimately, if I'm understanding correctly, where we're going with this. [01:49:37] Speaker 07: And the part of the statute that this interrelates with is the call on the basis of the administrative fines [01:49:44] Speaker 07: that the SIP is substantially inadequate to otherwise comply with any requirement of this chapter. [01:49:50] Speaker 07: And so if it's a provision that isn't necessary anyways, then does it jive with the language that says to otherwise comply with a requirement of this chapter? [01:50:02] Speaker 07: Because I think it seems to me what would be relevant is something that is a requirement of the chapter, but the violation of which still is not a substantial adequacy. [01:50:14] Speaker 07: That's at least what I'm interested in. [01:50:15] Speaker 07: I may not be capturing exactly what my colleagues are interested in. [01:50:18] Speaker 03: I think that I understand your point, Your Honor. [01:50:21] Speaker 03: And so all I'll say is that here, if there is a violation of a fundamental requirement, the anatomy is substantial. [01:50:35] Speaker 03: And I think that you can draw from the statute text itself and its architecture in this context. [01:50:42] Speaker 03: which particular requirements would fall on the other side of the line would be something that EPA would have to evaluate in the context of the SIP and the SIP provision at issue and how it interacts with that requirement. [01:50:58] Speaker 06: I still haven't really heard you answering Judge Walker's question. [01:51:03] Speaker 06: If, you know, why, what have you told us that prevents us from, that doesn't leave us saying when it comes to fundamental legal error versus non-fundamental, EPA has given us no limiting principle. [01:51:17] Speaker 06: I guess your answer is this is so clearly fundamental that we don't need to explore the outer bound. [01:51:26] Speaker 03: Well, I believe that's correct, Your Honor, because here there was no claim that the underlying requirements at issue here [01:51:33] Speaker 03: are not fundamental requirements. [01:51:34] Speaker 06: Well, there is an argument that you've invented a standard that is limitless. [01:51:41] Speaker 06: There is that claim in the briefing. [01:51:44] Speaker 03: Well, I think that they certainly challenged the standard by saying it's not a permissible construction. [01:51:49] Speaker 03: And I think we've resolved that by pointing out that you need to look at each of the terms in the text in concert in connection with the third prong and the underlying requirements at issue. [01:52:03] Speaker 03: Where I'm having trouble answering is what is the example of a requirement that would not be a fundamental legal requirement. [01:52:14] Speaker 03: And the reason I'm having difficulty is that that issue didn't come up in this lawsuit. [01:52:18] Speaker 03: Nobody posited such an example. [01:52:21] Speaker 03: EPA was not dealing with such requirements in this case. [01:52:25] Speaker 03: And so EPA did not explore that other side of the coin of its analysis. [01:52:32] Speaker 03: it was not presented in the context of the rulemaking by any party. [01:52:35] Speaker 03: And so that's why I cannot identify a particular clear example that falls on the other side of the line. [01:52:44] Speaker 03: And I think it's something that the agency has to look at in context with the SIPP provision that potentially does not comply with that kind of requirement that Judge Walker is asking about. [01:52:57] Speaker 07: Can I ask you to address the reliance of the state petitioners on, at least that argument, put aside whether it was in the briefs, but that argument on K-6? [01:53:09] Speaker 03: Your honor, we've got a situation here where the law has changed significantly, where legal interpretations have changed over time. [01:53:20] Speaker 03: And even if you were to assume that EPA's [01:53:25] Speaker 03: could use K-6 in all the different circumstances that, in the circumstances we have here. [01:53:30] Speaker 03: Assuming that that's true, that in no way would preclude EPA's authority under K-5 to issue a SIP call to remedy these types of defects that are here where there are legal requirement. [01:53:43] Speaker 03: And that is the way the statutory structure, the federal state cooperative structure of 110 is, [01:53:52] Speaker 07: But I think the argument being made is that if we read K6 to cover this, then there's no reason to read K5 to cover it. [01:54:01] Speaker 07: It's a tool for understanding the scope of K5. [01:54:06] Speaker 07: You may have a response that K5 also covers it anyway. [01:54:10] Speaker 07: But I guess my question is, do you have a response that says that K6 doesn't cover this? [01:54:16] Speaker 03: Well, I don't have a response here that it doesn't cover it. [01:54:20] Speaker 03: I don't have really an answer to that question. [01:54:22] Speaker 03: So I'm going to assume that it does cover it for purposes of this argument. [01:54:26] Speaker 03: Although looking at the text, it seems to talk about, as if we're talking about errors that may have been made at the time, as opposed to errors that arose, they became obvious afterwards when the law changed, interpretations changed. [01:54:39] Speaker 03: New decisions come down from this court. [01:54:42] Speaker 03: We've got the Sierra Club decision. [01:54:44] Speaker 03: We've got the NRDC decision. [01:54:45] Speaker 09: We don't change the law, Mr. Kaplan. [01:54:49] Speaker 09: No, I take your point. [01:54:52] Speaker 09: And I'm not trying to make a semantic point, but if that's what you're saying depends on, then I'm not sure I'm going to be able to go along with what you're saying. [01:55:01] Speaker 03: No, I agree. [01:55:01] Speaker 03: I take your point. [01:55:02] Speaker 03: But we do have to, the agency does have to respond and accommodate [01:55:07] Speaker 03: interpretations that this court provides in its decisions. [01:55:11] Speaker 07: Well, what's the remedy under case six, because I, I am focused on this provision for but it speaks in terms of the administrator may in the same manner as the approval disapproval of promulgation revise such action as appropriate, without requiring any further submission from the state. [01:55:29] Speaker 07: That's not what does it mean to revise such action. [01:55:33] Speaker 03: It looks as though it's approval. [01:55:35] Speaker 03: It looks like it's exactly revising its approval. [01:55:39] Speaker 03: And the provisions are substantially different because of that point. [01:55:45] Speaker 03: Here, EPA is invoking the main apparatus within the context of how 110 operates. [01:55:51] Speaker 03: And it's invoking 110K5 because that comports with the federal state process that Congress enacted. [01:56:00] Speaker 03: And the difference in remedy is significant because it gives the states an opportunity [01:56:06] Speaker 03: because the states have an opportunity in the first instance to elect how to best respond and fix the provision. [01:56:14] Speaker 03: Now, I understand. [01:56:16] Speaker 03: States might say, no dice. [01:56:18] Speaker 03: We're not interested. [01:56:19] Speaker 03: We're not going to fix the provision. [01:56:21] Speaker 03: And the statute also has the remedy for that situation, in which case, if a state elects not to fix the provision, then the statute requires that EPA fix the provision itself using a FIP. [01:56:34] Speaker 03: the federal implementation plan. [01:56:36] Speaker 03: And so that is the dichotomy and the difference between these provisions. [01:56:42] Speaker 03: And regardless of whether K6 could or couldn't have applied here, it in no way eliminates the different kind of remedy, the different process that EPA went through here. [01:56:54] Speaker 07: And can I ask one more question and then I'm gonna make sure my colleagues have a chance to finish up any additional questions they have for you. [01:57:02] Speaker 07: And if this is a question that should have gone to Ms. [01:57:05] Speaker 07: Buckley, we can exercise our prerogative to ask her unmute. [01:57:10] Speaker 07: But my question is this, on the discontinuity portion of EPA's argument under 7410A2A, [01:57:22] Speaker 07: The point I think at the end of the day is that discontinuity means that the emission limitation does not ultimately constitute an emission limitation because of the discontinuity. [01:57:35] Speaker 07: And what I'm asking is at the end of 7410A2A, there's the language as maybe necessary or appropriate to meet the applicable requirements of this chapter. [01:57:44] Speaker 07: So presumably there's some requirement of this chapter that's not being met. [01:57:48] Speaker 07: and I'm wondering what's the requirement of the chapter that's not being met? [01:57:52] Speaker 07: Is it the definition itself that's not being met or is there some other requirement of the chapter that's not being met? [01:58:00] Speaker 03: I think that is a question actually that's best left for Ms. [01:58:03] Speaker 03: Buckley. [01:58:04] Speaker 07: Okay, sure. [01:58:04] Speaker 07: Then let me make sure that. [01:58:08] Speaker 09: Can you answer the question that I asked Ms. [01:58:11] Speaker 09: Buckley and that she told me to ask you? [01:58:13] Speaker 09: I can repeat it. [01:58:16] Speaker 09: How can [01:58:18] Speaker 09: a provision of a SIP be substantially inadequate, not just inadequate, but substantially inadequate when its inadequacy is ambiguous? [01:58:34] Speaker 03: Oh, yes, Your Honor, I understand that question. [01:58:38] Speaker 03: And let me respond. [01:58:41] Speaker 03: This is a circumstance that two courts have looked at. [01:58:44] Speaker 03: the US Magnesium Court in 10th Circuit, I mean, the Magnesium case in the 10th Circuit, and the Georgia Power case in 11th Circuit. [01:58:51] Speaker 03: And both have opined that the way to remedy ambiguity, where ambiguity could lead to an inconsistent construction of the statute, is to issue a zip call. [01:59:03] Speaker 03: So those courts have already said that a zip call is appropriate in this instance. [01:59:08] Speaker 03: And the way this works is that, [01:59:13] Speaker 03: where the ambiguity exists, the focus has to be on the text of the SIP provision. [01:59:19] Speaker 03: And the question is, is that supervision clear so that it can be applied by third parties? [01:59:25] Speaker 03: Can it be applied once we leave here? [01:59:28] Speaker 03: Once EPA approves a SIP, can it be applied by industry so it understands what its obligations are? [01:59:35] Speaker 03: by citizens so they can understand what industry needs to do and cannot be enforced. [01:59:41] Speaker 03: And can courts review that? [01:59:43] Speaker 03: And so the key is to have clear provisions that are not ambiguous where you can have an interpretation that's contrary to the statute. [01:59:55] Speaker 03: Because when you have an interpretation that's contrary to the statute, the SIP is not going to do its job. [01:59:59] Speaker 03: the SIP will not be able to do its job. [02:00:03] Speaker 03: And the Georgia power illustrates this situation where a district court judge looked at an SSM provision and thought that it did not preclude enforcement by a citizens group. [02:00:16] Speaker 03: The court of appeals reversed and said, it looks to us like this tax does preclude enforcement. [02:00:24] Speaker 03: And so, [02:00:26] Speaker 03: I'm gonna have to preclude the lawsuit. [02:00:29] Speaker 03: But the court said, and the remedy that's appropriate in this circumstance, and I'll quote, if the EPA believes that its current interpretation of the Cleaner Act requires Georgia to modify its SSM rule, the EPA should require the state to revise its SIP. [02:00:44] Speaker 03: And that's at 443 F3rd at 1355. [02:00:48] Speaker 03: And the court cites the SIP call provision 110K5. [02:00:52] Speaker 03: And so that is the appropriate remedy in this situation where you've got the kinds of legal deficiencies that we're talking about. [02:01:00] Speaker 03: And in this case, it's a small matter for if a state's interpretation is that if the state's interpretation is that we never intended at offending [02:01:13] Speaker 03: provision. [02:01:14] Speaker 03: It's a small matter for a state to then submit a SIP revision to clarify that so that the words of the SIP themselves are clear. [02:01:26] Speaker 07: Let me make sure my colleagues don't have additional questions for you, Mr. Kaplan. [02:01:33] Speaker 09: Not for me. [02:01:35] Speaker 07: Thank you. [02:01:36] Speaker 07: Then if I beg my colleague's indulgence, but if I could just ask Ms. [02:01:40] Speaker 07: Buckley the question I should have asked her before and we can leave the timer at zero because we're in overtime with you. [02:01:46] Speaker 07: Thank you. [02:01:47] Speaker 07: But Ms. [02:01:48] Speaker 07: Buckley, so did you understand the question that I asked about the final part of Senator 410A2A as relates to the discontinuity argument? [02:01:57] Speaker 07: What is the applicable requirement of the chapter that's not being met? [02:02:04] Speaker 05: I'm sorry. [02:02:06] Speaker 05: that the applicable requirement under the chapter as referred to in Section 7602K, I think that there are two ways of giving that content. [02:02:21] Speaker 05: One is that emissions limitations may have to comply with substantive stringency standards, and note that emission limitation is a cross-cutting term. [02:02:34] Speaker 05: that could apply in the 112 context to, you know, the max standard and the 110 context to substantive standards like we've discussed under PSD, etc. [02:02:44] Speaker 05: But that the continuity standard is also a requirement under the chapter. [02:02:48] Speaker 05: And the legislative history of this provision makes clear that Congress chose to put this continuity requirement here to ensure that it was [02:02:59] Speaker 05: it was applied across the board to sections 110, 111, 112 and elsewhere. [02:03:04] Speaker 06: Yes, the question is, is it sort of circular or bootstrapping to, you know, if you have 112 and you have a requirement to come up with mesh haps for hazardous air pollutants and what is the non-302K [02:03:27] Speaker 06: provision other than in the subset of SIP situations where you have a racked or a backed or a prevention of significant deterioration, but just in the ordinary attaining jurisdiction where a SIP has been submitted in an effort to create a mechanism for maintaining the NACs, [02:03:54] Speaker 06: What is the requirement outside of 302K that is referenced by that last clause? [02:04:06] Speaker 05: I think that it could be read as circular in that it is referencing back to an earlier part of the definition. [02:04:12] Speaker 05: But I believe this court in Sierra Club articulated that that continuity requirement had independent force outside of 112. [02:04:21] Speaker 05: The court statement was that [02:04:23] Speaker 05: There must be a 112 compliant standard in place at all times. [02:04:28] Speaker 05: And the at all times comes from continuity, not from anywhere in 112. [02:04:32] Speaker 06: But the continuity is a tool to meet requirements of the chapter. [02:04:38] Speaker 06: And I guess I was understanding it. [02:04:41] Speaker 06: maybe sort of less precisely than Chief Judge Srinivasan as the requirement to have an effective SIP in place. [02:04:53] Speaker 06: But that's, I think, a little fuzzy, and I think he's asking you for something more, maybe more precise. [02:05:00] Speaker 05: Right. [02:05:01] Speaker 05: Well, the continuity requirement also speaks to the ability to [02:05:08] Speaker 05: maintain, attain the NACs to enforce compliance with the NACs. [02:05:13] Speaker 05: And again, the legislative history of this section illustrates Congress's concern with ensuring that a continuous limitation be in place in order to achieve those substantive goals. [02:05:27] Speaker 05: And those substantive goals are outside of the stringency standards we've discussed. [02:05:32] Speaker 05: They are also about direct compliance with the NACs. [02:05:35] Speaker 07: But the thing is that I don't think EPA's rationale and the rule [02:05:39] Speaker 07: Was that the failure with respect to discontinuity is a failure of meeting the next it's that the failure with respect to discontinuity is the failure to meet the definition of an emission limitation. [02:05:54] Speaker 05: Yes, your honor in that the requirement of continuity is. [02:06:00] Speaker 05: is a legal requirement inherent to that type of control as illustrated by this. [02:06:07] Speaker 07: Then it does seem circular to me in the way that, that's not to say the circularity is necessarily, I mean, usually we presuppose that circulators is a big problem. [02:06:16] Speaker 07: I'm not sure that it is, but I'm just trying to understand whether there is something that's non-circular about it because it sounds like the part of the chapter that's being violated is the definition itself. [02:06:29] Speaker 06: Right. [02:06:30] Speaker 06: Why isn't it enforceable emission limitation? [02:06:32] Speaker 06: I mean, I thought the whole case is really about enforceability and that you're not going to be able to keep the sheep in the pen if there are gaps. [02:06:40] Speaker 06: And so if the requirement is not the 302K requirement, but the 110A2A requirement of enforceable emissions limitations that an emissions limitation is only enforceable [02:06:58] Speaker 06: if it is where a state and EPA have deemed some limitation scheme to be necessary, and obviously it doesn't have to have one, but where it's deemed it to be necessary and submitted a SIP on that premise, that it's the enforceability and then maybe all the corresponding enforcement provisions like the remedial and others that are [02:07:28] Speaker 06: what's necessary. [02:07:31] Speaker 05: Right, Your Honor, and I think that's why I tried to say earlier that there is an enforceability aspect to EPA's argument, EPA's continuity argument here. [02:07:43] Speaker 05: EPA's got the argument that the automatic exemptions are inconsistent with the Clean Air Act. [02:07:50] Speaker 05: That's the operation of 302K and Section 110A2A read together. [02:07:56] Speaker 05: And when there is a discontinuity, you have lost the ability to enforce the emission limitation that the state's plan says otherwise applies. [02:08:10] Speaker 09: Can I take a shot at a sheep metaphor? [02:08:21] Speaker 09: Imagine that fence is defined as [02:08:25] Speaker 09: fence with no holes. [02:08:29] Speaker 09: And the state submits a plan to keep the sheep in. [02:08:34] Speaker 09: And the plan includes a fence with holes. [02:08:38] Speaker 09: And it also includes a sheep dog. [02:08:41] Speaker 09: And here we are 50 years later, there's no evidence the sheep's ever got out. [02:08:48] Speaker 09: And along comes the EPA and they say, well, [02:08:51] Speaker 09: You said you had a fence and your fence has holes and that violates the definition of the fence. [02:08:55] Speaker 09: So we have a problem here. [02:08:57] Speaker 09: Why is that not this case? [02:09:02] Speaker 05: Well, your honor, I think that we have to look at the requirement. [02:09:07] Speaker 05: As articulated about that fence and read the lack of holes as as a requirement for having a fence. [02:09:17] Speaker 06: Or maybe the sheepdog is another means the fence doesn't really have a hole effectively. [02:09:24] Speaker 06: The sheepdog is the design, equipment, work practice, or operational standard. [02:09:34] Speaker 06: And if the sheepdog is not there continuously, then there's a hole. [02:09:38] Speaker 06: If the sheepdog is there continuously, then we're good. [02:09:42] Speaker 06: So the fence is, [02:09:45] Speaker 06: a quantity rate or emission or a filter. [02:09:51] Speaker 06: The fence is a filter and the sheepdog is a clean fuel requirement. [02:09:55] Speaker 06: And if you have the filter all the time and the clean fuel requirement only half the time, then no good. [02:10:06] Speaker 05: I think that your skill in manipulating metaphors is much better than mine on the fly. [02:10:12] Speaker 07: Then let me just, I'm not sure I caught all the nuances of the metaphor, but on what- Sometimes talking about it directly rather than by analogy, it's more eliminating. [02:10:22] Speaker 06: Sorry, it's my fault. [02:10:23] Speaker 07: No, I think it's all helpful. [02:10:25] Speaker 07: Just to me at least, to bring it back to EPA's actual rationale in this case, and because it seems to me the question is, [02:10:35] Speaker 07: the applicable requirements of this chapter, are they the requirement itself that emission limitation requires continuity? [02:10:43] Speaker 07: Or is there something else like achievement of the next or some other standard? [02:10:47] Speaker 07: And I get the point if it's the latter, because if it's the latter, then that seems kind of naturally the way to think about this. [02:10:53] Speaker 07: But if it's the former, it raises at least the possibility of a circularity question. [02:10:58] Speaker 07: And I'm looking at J184 in the second column in the rule [02:11:05] Speaker 07: And about halfway down the column, the EPA says, thus, at a minimum, EPA interprets the phrase as may be necessary appropriate, which is the relevant phrase. [02:11:18] Speaker 07: 7410, which I guess is 110A2A to use the language, the nomenclature that others have used, 110A2A. [02:11:25] Speaker 07: EPA interprets the phrase as may be necessary appropriate to include what is necessary or appropriate to meet legal requirements of the CAA, including the requirement that emissions limitations must apply on a continuous basis. [02:11:38] Speaker 07: So the relevant requirement, it looks like, is the definition itself, not some other [02:11:46] Speaker 07: requirement or standard like an axe that's not being met. [02:11:50] Speaker 07: It ends up circling back to the definition. [02:11:53] Speaker 05: Yes, Your Honor. [02:11:54] Speaker 05: And I think that that is consistent with this court's interpretation again in Sierra Club that gave that continuity requirement, you know, independent force. [02:12:05] Speaker 06: This is the difficulty that the under 112 EPA has to promulgate, whereas here we're asking, what is the content of what needs to be in a SIP? [02:12:14] Speaker 06: I actually had underlined not the part that the chief just read, but the ensuing part, which talks about basic legal requirements, e.g. [02:12:24] Speaker 06: the requirements of 110A to A through M, substantive requirements of rack level controls, [02:12:32] Speaker 06: whether the schedules and timetables for compliance are legally and functionally enforceable. [02:12:40] Speaker 06: So I thought it was sort of the SIP, the requirement to have SIPs, to have SIPs that meet the various special requirements that may be applicable to sources and to non-attainment areas and the like. [02:12:55] Speaker 06: And [02:12:56] Speaker 06: So that's what I was taking to be what I feels non-circular, but I'm not sure that that's satisfying to my colleague. [02:13:10] Speaker 05: Right. [02:13:11] Speaker 05: And I think certainly the continuity requirement is also in the service of those other requirements, again, in service of enforceability and in service of substantive stringency standards or substantive aims of the act. [02:13:25] Speaker 07: I guess my question about that is that could well be the case and just reading the statute tells you that one can recite that, but then there's no effort made to substantiate that other than just to say that that's generally true, which just to look at the statute would tell you that that's what Congress thought. [02:13:44] Speaker 07: It's in service of these broader objectives, but the agency didn't do anything to substantiate that. [02:13:51] Speaker 07: I think because the agency thought it didn't need to because [02:13:54] Speaker 07: the requirement that was most squarely an issue was the perceived requirement to meet the definition of an emission limitation, which itself requires continuity. [02:14:04] Speaker 07: I take the point that this was an add-on, but it seems like an add-on that's just a statement without much to bolster. [02:14:14] Speaker 05: Not much to bolster in the sense that there was not specific fact-finding, again, but I think [02:14:24] Speaker 05: EPA's assessment and analysis of other requirements of the Act that, you know, I think EPA reasonably concluded would be jeopardized by discontinuity. [02:14:36] Speaker 05: I think that's where those come into EPA's rationale here. [02:14:39] Speaker 05: And just once again, I think that's consistent with what the House report said about the purpose of this term. [02:14:48] Speaker 07: Okay, I think at least for my purposes, I'll leave it at that. [02:14:52] Speaker 07: And hopefully we won't call you up for a third time. [02:14:56] Speaker 07: That was my mistake. [02:14:58] Speaker 07: Unless my colleagues have additional questions for you at this time, we'll go to intervenors council. [02:15:05] Speaker 07: Thank you for a second time, Ms. [02:15:07] Speaker 07: Buckley. [02:15:08] Speaker 07: Ms. [02:15:09] Speaker 07: Esad, we'll hear from you now. [02:15:13] Speaker 04: Yes, thank you. [02:15:15] Speaker 04: May it please the court, Andrea Esad for Environmental Interveners. [02:15:20] Speaker 04: SSM events release massive amounts of dangerous pollution into communities and they happen frequently. [02:15:27] Speaker 04: So I'd like to talk briefly about those impacts and then address, make a few additional points about some questions we've been discussing and then emphasize the plain language of the act to conclude. [02:15:42] Speaker 04: One example in the record released 156,000 pounds of sulfur dioxide into a Louisiana minority community where many of the children are living below the poverty line. [02:15:55] Speaker 04: Sulfur dioxide reduces lung function and sends children and the elderly to the emergency room. [02:16:02] Speaker 04: As we discussed, these events are not even monitored or reported in most states. [02:16:08] Speaker 04: So most communities don't even know what they're breathing in. [02:16:11] Speaker 04: So states cannot say that they're adequately protecting the air. [02:16:16] Speaker 04: They're only saying that because they're ignoring these emissions. [02:16:21] Speaker 09: I was curious about the reason for what you just said [02:16:25] Speaker 09: I don't doubt that it's true that there's a lack of monitoring, but I guess why is there a lack of monitoring? [02:16:37] Speaker 04: That might be a better question for industry. [02:16:41] Speaker 04: I can tell you that EPA has recognized that, I mean, as far as NACs monitors, that the existing NAC monitor network [02:16:50] Speaker 04: is insufficient and that significant air quality problems can avoid detection. [02:16:55] Speaker 04: I can tell you that many facilities turn off their air monitors during these events. [02:17:03] Speaker 09: So the monitoring responsibility is industries. [02:17:07] Speaker 09: It's not EPA or state or citizens who want to file citizenship. [02:17:14] Speaker 04: Well, it's certainly not citizens, but I think both EPA and states have [02:17:21] Speaker 04: complementary monitoring responsibilities, but that an event can escape detection if the wind is blowing the wrong way. [02:17:32] Speaker 04: You can't possibly have a monitor in every location. [02:17:36] Speaker 06: We rely on all kinds of NACS cases on [02:17:43] Speaker 06: the monitoring system that's out there. [02:17:46] Speaker 06: If it doesn't show exceedances, we rely on that. [02:17:48] Speaker 06: If it shows exceedances, we rely on that. [02:17:50] Speaker 06: I've seen these models and reams of documents that rely, of course it's not perfect, but that's not what this case is challenging. [02:17:59] Speaker 06: This case is challenging the treatment of SSM events, and I guess it does seem more relevant to me the kinds of things you're saying about whether [02:18:07] Speaker 06: whether they are considered to be in other forms of monitoring. [02:18:13] Speaker 06: Ambient air monitoring through stationary monitors would presumably pick them up. [02:18:18] Speaker 06: But then you'd have this causal question of where did this excess come from. [02:18:22] Speaker 06: But there are other monitoring requirements. [02:18:26] Speaker 06: And if you could be more concrete about how those are evaded, like individual sources have to report [02:18:32] Speaker 06: and maybe they don't report this amount. [02:18:36] Speaker 06: And whether there's something about that in the record could be helpful. [02:18:39] Speaker 04: EPA does talk about this in the record. [02:18:43] Speaker 04: I know the legal memorandum at page 23. [02:18:48] Speaker 04: Sorry, I don't have the appendix site off the top of my head, but they talk about this monitoring problem. [02:18:57] Speaker 04: I'm sorry, I lost the first part of your question. [02:19:02] Speaker 06: Just that to the extent that there are indicia that these exceedances, as hazardous as you or as dangerous, as harmful to health as they may be, are not always picked up and responded to through factual ways, as Mr. Esrae was really [02:19:27] Speaker 06: urging they should be are most appropriately. [02:19:30] Speaker 04: So the SIP provisions don't require or they either don't require the monitoring or reporting or they explicitly allow sources to avoid that responsibility during these events. [02:19:46] Speaker 04: I know of two states that do track and monitor Louisiana and Texas and that's where most of our data comes from. [02:19:54] Speaker 04: And really the point I'm trying to make here is that there are real world impacts. [02:20:00] Speaker 04: There's real world consequences of these events. [02:20:03] Speaker 04: And even though EPA was not required to make any findings to that effect because the SIP call provision does not require it, EPA did acknowledge these consequences that they adversely affect human health. [02:20:16] Speaker 04: EPA recognized that NAICS violations occur. [02:20:19] Speaker 04: It looked at one specific example on the record [02:20:24] Speaker 04: And that these provisions interfere with enforcement. [02:20:29] Speaker 04: And there's community impacts. [02:20:32] Speaker 04: So that's really the point I'm trying to make and that this, this rule is extremely important to fence line communities. [02:20:40] Speaker 04: And one additional point that fixing these provisions will help because it will provide the needed incentive for sources to make the investments in proper design and maintenance of sources. [02:20:56] Speaker 04: Good actors do reduce the frequency of events and emissions, just like a newer and better maintained car will operate better. [02:21:05] Speaker 04: So I'd like to turn to the plain language of the statute and try to quickly make the point that this court should deny the petitions at Chevron step one because the statutory language is clear. [02:21:19] Speaker 04: Section 110. [02:21:22] Speaker 04: Under Section 110, SIPs must include enforceable emission limitations to meet all requirements of the Act. [02:21:27] Speaker 04: We've talked about those requirements of the Act and the minimum stringency requirements. [02:21:32] Speaker 04: And I want to address the control measure discussion. [02:21:37] Speaker 04: briefly to make an additional point that we don't believe it's possible to meet the acts requirements without emission limitations because we're talking about requirements like NACs that have one hour, they're set over one hour or three hour with no averaging. [02:21:56] Speaker 04: So this notion that a state could use just control measures and not including emission limitations at all [02:22:07] Speaker 04: seems really kind of unreasonable reading of this of the act to rename an emission limitation into a control measure to subvert the continuity requirements. [02:22:19] Speaker 04: So this point has been made but reading section 110 and 302 K together. [02:22:27] Speaker 04: The SSM exemptions and director discretion conflicts with the plain language requirement here and the general duty provision cannot legitimize them because the general duty is unenforceable. [02:22:40] Speaker 04: It's unquantifiable. [02:22:42] Speaker 04: There's no objective metrics for the court to evaluate. [02:22:46] Speaker 04: Affirmative defense provisions conflict with the plain language of Section 304 and 113 as this court found in NRDC. [02:22:55] Speaker 04: So in closing, the court should reject the petitions to weaken the important public health protections promised to communities in the Clean Air Act and rule at Chevron step one because the act is clear and it will provide more certainty to the parties and conserve judicial resources. [02:23:13] Speaker 04: Thank you. [02:23:15] Speaker 07: Thank you, Ms. [02:23:16] Speaker 07: Assad. [02:23:16] Speaker 07: Let me make sure my colleagues don't have questions for you. [02:23:19] Speaker 07: You timed it exactly as you came to zero. [02:23:21] Speaker 02: That was pretty immaculate. [02:23:25] Speaker 07: Thank you, Ms. [02:23:27] Speaker 07: Assad. [02:23:27] Speaker 07: Mr. Ezrae, we'll give you your rebuttal time. [02:23:30] Speaker 07: We'll round it up to the seven minutes you asked for. [02:23:32] Speaker 07: And at some point, if you could, it doesn't have to be the beginning, but at some point, could you just remind me whether K-6 was referred to, whether that argument was made in the briefing? [02:23:43] Speaker 07: And if not, why not? [02:23:45] Speaker 07: anytime you want to address. [02:23:48] Speaker 08: Sure. [02:23:49] Speaker 08: Thank you and may it please the court. [02:23:50] Speaker 08: Let's keep talking about willful sheep. [02:23:52] Speaker 08: So let's assume that we've got a rule that you have a fence that has no holes in it. [02:23:58] Speaker 08: I think under the statute, the question you ask is the state has a hole in its fence, does it matter? [02:24:04] Speaker 08: The hole may be so small that no sheep could ever escape out of it. [02:24:08] Speaker 08: And then we would submit that you would never find that hole is a substantial inadequacy. [02:24:13] Speaker 08: And I don't think that EPA has given you any explanation today of how you would find that any violation of a legal requirement in the act would fall short of substantial inadequacy. [02:24:24] Speaker 08: And I think that that just means that the point that we made in our reply that they're reading the word substantial out of the act is correct. [02:24:31] Speaker 08: EPA does not give you any metric by which to measure whether these plans were substantially inadequate. [02:24:36] Speaker 08: And I think it's important [02:24:37] Speaker 08: I heard Mr. Kaplan say that the reason he does not think that they don't need to do that is that all of these provisions of the Clean Air Act are designed to make sure that the states are doing its job. [02:24:47] Speaker 08: But the comments that the EPA got, I'd refer you to page 490 of the Joint Appendix, this example from Louisiana, said, we are doing our job. [02:24:54] Speaker 08: These exemptions are not imperiling air quality in our state whatsoever. [02:24:58] Speaker 08: And the EPA dismissed them because they said that does not matter to the fundamental requirements set. [02:25:03] Speaker 08: I think this point could be made in a couple of other ways. [02:25:05] Speaker 08: We've talked a lot about modeling this morning. [02:25:07] Speaker 08: At JA 233, EPA got a comment that said, look, states are modeling and sources specifically are modeling SSM events. [02:25:15] Speaker 08: And the EPA said, it doesn't matter one way or the other, because we find that there's a fundamental violation of the act. [02:25:21] Speaker 08: And so I don't think that EPA is giving you any reason to believe that the tiny hole in the fence that it is identified is substantially inadequate. [02:25:28] Speaker 08: But then we get to the question, I think you hit the nail on the head, Chief Judge Vinavasan, do you need a fence at all? [02:25:34] Speaker 08: And the answer to that is no, there is no general requirement [02:25:37] Speaker 08: in section 110 that states have emissions limits whatsoever. [02:25:41] Speaker 08: Section 110 A2A says that states need to have enforceable emission limits and other control measures, means, techniques, et cetera, as may be necessary or appropriate to meet the requirements of this chapter. [02:25:52] Speaker 08: Thus, if a state determined that emission limit is neither necessary nor appropriate, then it need not have an emission limit at all. [02:26:00] Speaker 08: And that makes sense structurally. [02:26:01] Speaker 08: I think Ms. [02:26:02] Speaker 08: Buckley said the Regency thinks that there needs to always be a continuously [02:26:08] Speaker 08: in Sierra club, but in Sierra club this court was interpreting section 112 D, and that actually proves our point that provision shows that when the act wants to have a non discretionary mission limit, it knows how to say 112 D says that the administrator shell promulgate regulations establishing emission standards mission standards the statutory synonym for emission limit. [02:26:29] Speaker 08: for each category of hazardous air pollutants. [02:26:32] Speaker 06: That's not exactly the EPA's position, right? [02:26:35] Speaker 06: Because the EPA with South Carolina said, look, if this category of sources is not controlled, fine. [02:26:41] Speaker 06: We're not going to look at that as inadequate. [02:26:46] Speaker 06: And there isn't any dispute here that all of the states that were called submitted SIPs. [02:26:53] Speaker 06: And none of them have said that what they've put in those were not [02:26:58] Speaker 06: put in there in order to meet their Clean Air Act obligation. [02:27:01] Speaker 06: So it's a little, I mean, I understand what your argument as sort of a language argument that [02:27:09] Speaker 06: In the abstract, if you had a state that said, look, our strategy in the SIP is we're going to stand up a go green campaign. [02:27:21] Speaker 06: We think the consumers in our state put a lot of pressure on the sources. [02:27:24] Speaker 06: The sources are really tack forward. [02:27:27] Speaker 06: They really want to use the best [02:27:28] Speaker 06: technology, with the consumer pressure and the knowledge of the sources, they're going to do better than anything we could come up. [02:27:36] Speaker 06: We're writing that in our SIP and we're submitting it to EPA. [02:27:39] Speaker 06: And I take it that your position is that in that case, unless they showed exceedances as a factual matter or as a matter of modeling, they couldn't issue the SIP call. [02:27:51] Speaker 06: And EPA's view is [02:27:53] Speaker 06: Actually, we have to be able to look at that and say, legally, we don't think that meets the Clean Air Act. [02:27:59] Speaker 06: But that's not this case at all. [02:28:03] Speaker 08: So I think it is. [02:28:04] Speaker 08: And let me try and explain why. [02:28:06] Speaker 08: So I think it is true, all of these states submitted to the EPA as part of their submissions, a program that they thought would be necessary or appropriate to comply with the act. [02:28:18] Speaker 08: And we said, what we want to do in our program is we want to have a numerical limit [02:28:22] Speaker 08: that excludes startup shutdown and malfunction events. [02:28:26] Speaker 08: Now EPA said, okay, that is not an emission limit. [02:28:29] Speaker 08: And I think our response is, well, that's fine because we don't need to have an emission limit at all. [02:28:34] Speaker 08: And I just point out that I think Ms. [02:28:36] Speaker 08: Buckley said today that that would be fine as long as EPA found that that type of SIP provision was necessary and appropriate. [02:28:43] Speaker 08: And at JA 179, EPA says that it is quote, [02:28:46] Speaker 08: approve SIP provisions that impose various forms of emission controls that are not, by definition, emission limits. [02:28:52] Speaker 08: And I think the latest and greatest interpretation from the EPA on this, which is in their withdrawal of the North Carolina SIP call, took the same exact position. [02:29:00] Speaker 08: So I think everyone is taking the position that states do not need to have emission limits. [02:29:05] Speaker 08: If you think that the lack of continuity caused by the startup shutdown and malfunction events means that we don't have an emission limit, [02:29:13] Speaker 08: All that means is that we've used some other control device. [02:29:16] Speaker 08: And if the EPA wants to challenge that, Judge Bellard, I think that the answer is they can say, well, you have not demonstrated either at the submissive stage or as part of a call that you're doing something sufficient to maintain or attain the NAICS, the interstate pollutant transport, or any other control device. [02:29:31] Speaker 08: But then I think we get back to Chief Judge Srinivasan's question. [02:29:34] Speaker 08: This is talking about JA 184. [02:29:36] Speaker 08: EPA would need facts to make that showing. [02:29:38] Speaker 08: Now, I do want to say, even if you think [02:29:40] Speaker 08: that you've got to have a fence that sort of at all times complies, the sheepdog hypothetical is actually quite good because we have one by nature of the general duty clauses. [02:29:51] Speaker 08: And Judge Pollard, you asked my co-counsel where in the record you can find EPA's objections to the general duty clauses. [02:29:58] Speaker 08: It's at JA 185. [02:30:00] Speaker 08: And what EPA says is that the problem with these clauses are that they are often located in different parts of the SIP [02:30:06] Speaker 08: and are often not cross-referenced or otherwise identified as part of the putatively continuously applicable emission limitations. [02:30:12] Speaker 08: EPA's problem is that they don't have a cross-reference. [02:30:15] Speaker 08: EPA doesn't point you to any reason why a cross-reference is necessary in the law. [02:30:19] Speaker 08: And I point you to the decision in Texas VEPA out of the fifth circuit that says EPA does not get to call a SIP based on problems with drafting styles. [02:30:27] Speaker 08: So I think that there's no reason why the state general duty clauses cannot suffice here. [02:30:32] Speaker 08: And again, the only other thing Ms. [02:30:33] Speaker 08: Buckley said this morning [02:30:34] Speaker 08: was that there may be stringency problems. [02:30:37] Speaker 08: But I think, again, EPA would have to point to facts to show the stringency problems. [02:30:41] Speaker 08: And also, that call would look substantially different than this one, because it would say, state A, you have a non-attainment area where you lack stringency. [02:30:49] Speaker 08: We want you to rewrite the plan there. [02:30:52] Speaker 08: I see my time has lapsed. [02:30:52] Speaker 08: I want to make sure I get to the case six issue. [02:30:55] Speaker 08: And if the court will indulge me, I would like to say one thing about affirmative defenses, because I'm not sure that we've gotten there. [02:31:00] Speaker 08: Yeah, so so you know to judge on the case six issue I don't think we briefed it, although I do think it's in the administrative record it's a J 25 or EPA discusses why it didn't issue it and I guess what I'd say is. [02:31:12] Speaker 08: We tried to directly brief in the limited pages we had why we thought K-5 didn't apply. [02:31:18] Speaker 08: I don't think we can waive statutory interpretation. [02:31:20] Speaker 08: I do think it's another reason why you would read K-5. [02:31:22] Speaker 07: I wasn't thinking of it necessarily in terms of waiver, although I think about that. [02:31:25] Speaker 07: I was thinking more in terms of if it was the first response you had and I was just wondering why it wasn't featured if the negative pregnant of K-6 is that K-5 should be construed to exempt these kinds of legal things that under your theory of it could be accommodated under K-6. [02:31:42] Speaker 08: Sure, I mean, I guess I don't I don't think that it's our sort of affirmative best argument I take the point that both Mr Kaplan and I think you made that you could read K five and K six is being overlapping. [02:31:51] Speaker 08: I think there's reasons not to do that, given you know substantial and finding and all the reasons we've discussed this morning. [02:31:57] Speaker 08: I think that the real question, and I think what I was trying to respond to as well. [02:32:01] Speaker 08: It seems a little odd to say that EPA has no ability to control sort of obvious legal errors. [02:32:06] Speaker 08: If I got that question from you or from Junge-Pillard, I think it's a good question. [02:32:10] Speaker 08: And I think our answer to that is K6. [02:32:13] Speaker 07: And can I ask, I'm going to follow up. [02:32:15] Speaker 07: And I know you have one on affirmative defenses and we'll let you make that point. [02:32:18] Speaker 07: But I want to follow up on the discussion about emissions limitations and their necessity or lack thereof and how that might implicate this case. [02:32:29] Speaker 07: So suppose you have a SIP that only consists of emissions limitations. [02:32:35] Speaker 07: And the whole rationale for why the SIP should be approved is look, we've got these great emissions limitations and you ought to prove it because these are the gold standard. [02:32:46] Speaker 07: And then in that hypothetical, could EPA call the SIP based on a recognition after approval, post-approval, that there's a discontinuity problem? [02:33:02] Speaker 08: I don't think so. [02:33:04] Speaker 08: And the reason I don't think so is that even if EPA identified that as being a problem, that wouldn't actually show any legal error in the SIP because the SIP would still have all of the control mechanisms it had. [02:33:20] Speaker 08: I think whether or not they're labeled an emission limitation or not, EPA could still judge whether they're sufficient to attain or maintain the NACs or any other [02:33:27] Speaker 08: you know, ambient air quality standards when EPA is assessing the SIP in the first instance under K-3. [02:33:33] Speaker 08: And so I think the way I would conceptualize that problem is if EPA finds, you know, everyone thought this was an emission limitation. [02:33:40] Speaker 08: We've now discovered that it's not. [02:33:42] Speaker 08: I think the question they should ask is, well, does that make the SIP insufficient? [02:33:46] Speaker 08: Do we think we need an emission limitation to be necessary or appropriate? [02:33:50] Speaker 08: meet the other requirements of the Act. [02:33:52] Speaker 08: That's the phrasing. [02:33:52] Speaker 07: In other words, your point is if the statute doesn't require a thing, the thing that the EPA defines as an emission limitation in order to gain SIP approval, then the fact that the thing that undergirds the SIP doesn't constitute an emission limitation doesn't in and of itself [02:34:13] Speaker 07: provide grounds for calling the SIP? [02:34:15] Speaker 07: It could be an ingredient of an argument that the SIP should be called because of some consequence that comes about because of that. [02:34:23] Speaker 07: But it wouldn't be the failure to meet the definition of an emission limitation in and of itself that would be grounds for calling the SIP, even in a case in which the entire SIP is composed of things that the state itself is contemplating constitute emission limitations. [02:34:39] Speaker 08: I think that's exactly right. [02:34:41] Speaker 08: I don't think we would say that the state's sort of mislabeling at the front end really impacts the evaluation or the legal sufficiency of the SIP whatsoever. [02:34:49] Speaker 08: I mean, if that's the case, then it's really just a matter of saying what we thought in the 1970s was an admission limit is really a control device. [02:34:56] Speaker 08: I'm not sure why that would be a basis to reject the SIP, much less one to call a SIP as being substantially inadequate. [02:35:03] Speaker 07: Okay, and I think you wanted to make one point about affirmative defenses, and we went over time with EPA counsel, so we'll let you make that point. [02:35:11] Speaker 08: Sure, and much appreciated. [02:35:13] Speaker 08: I know we've gone quite long. [02:35:14] Speaker 08: So I think if you look at NRDC, and I think that the arguments we've gotten today recognize that EPA's sole basis for the call here is the decision in NRDC. [02:35:24] Speaker 08: There are two relevant paragraphs in Chief Judge Finnebas, and you'd know this much better than I would, but they're in part four of the opinion. [02:35:30] Speaker 08: The first one deals with the court power argument. [02:35:34] Speaker 08: But NRDC wasn't only about the court's power, it was also about the EPA. [02:35:37] Speaker 08: So the very next paragraph after that [02:35:39] Speaker 08: deals with EPA's arguments that it thought that it can impose affirmative defenses under Section 301. [02:35:46] Speaker 08: The court rejects that argument because EPA's general rulemaking authority was not specific enough to underlay affirmative defenses. [02:35:52] Speaker 08: I think we have the specific rulemaking authority. [02:35:55] Speaker 08: I just want you very quickly to two sources. [02:35:57] Speaker 08: One is Section 110A2C that allows us to create a program to provide for the enforcement of the measures outlined in 110A2A. [02:36:05] Speaker 08: I think program [02:36:06] Speaker 08: to provide for enforcement is quite a broad term that would include things like allowing only injunctive relief of non-injury damages. [02:36:13] Speaker 08: And then the second one is 110A2A that we talked about a lot this morning that allows states to design enforceable emissions limits as may be necessary or appropriate to meet the requirements of the act. [02:36:23] Speaker 08: We think inherent in that delegation is the ability of the states to define how those emission limits will be enforced in each circle. [02:36:30] Speaker 06: That distinction seems peculiar to me because parallel to the state's SIP authority to come up with the package of regulations that will suffice at the federal level, the EPA has general regulatory authority. [02:36:48] Speaker 06: So the notion that EPA doesn't have analogous authority, I'm not entirely [02:36:59] Speaker 06: digesting that point. [02:37:01] Speaker 06: I mean, EPA does FIPs, EPA regulates in all kinds of ways under the Planner Act. [02:37:06] Speaker 08: Right. [02:37:06] Speaker 08: So I guess what I would say is in NRDC, the only authority EPA pointed to, and I think it's because it wasn't a FIP case, it's a 112 case, was its general regulatory authority. [02:37:17] Speaker 08: And what the court said is in light of the enforcement provisions, we don't think that that sort of very generic ability is enough. [02:37:25] Speaker 08: But I think our point is, we have much more specific ability, and I do think that the structure of NRDC makes clear that there's no sort of impingement on court power to have an entity that has the ability to create affirmative defenses to exercise that power to create affirmative defenses and I just say one last thing I'd encourage you to read. [02:37:43] Speaker 08: EPA's reasoning in its last noticing comment rulemaking on this issue, which was in the withdrawal of the call in Texas where EPA essentially adopts our view of this case. [02:37:53] Speaker 08: And to the extent you think that there's really any Chevron issues going on in this case, I think those issues would favor our interpretation because in the Texas call and the North Carolina withdrawal and the Iowa withdrawal, which is the last noticing comment rulemakings that EPA has issued, EPA adopted all of our interpretations of Section 110. [02:38:11] Speaker 07: Thank you. [02:38:12] Speaker 07: Let me make sure my colleagues don't have any further questions for you, Mr. Esrae. [02:38:17] Speaker 07: Thank you. [02:38:18] Speaker 07: Thank you, counsel. [02:38:19] Speaker 07: Thank you to all counsel. [02:38:20] Speaker 07: We'll take this case under submission.