[00:00:00] Speaker 00: Case number 20-1121, Sierra Club et al. [00:00:04] Speaker 00: petitioners versus Environmental Protection Agency and Michael S. Reagan, Administrator, U.S. [00:00:11] Speaker 00: Environmental Protection Agency. [00:00:13] Speaker 00: Mr. Johnson for the petitioners, Ms. [00:00:16] Speaker 00: Greenfield for the respondents, Mr. Strait for the interviewees. [00:00:20] Speaker 02: Morning, Council. [00:00:21] Speaker 02: Mr. Johnson, please proceed when you're ready. [00:00:24] Speaker 05: Thank you. [00:00:25] Speaker 05: Good morning, Seth Johnson for petitioners. [00:00:27] Speaker 05: I reserve three minutes for rebuttal. [00:00:30] Speaker 05: I regret I'm not able to be there in person. [00:00:31] Speaker 05: I appreciate your flexibility and particularly the court staff for accommodating this last minute need for the change in circumstances, I guess. [00:00:43] Speaker 05: In 2018, this court vacated a portion of a national EPA rule implementing ozone standards because that portion illegally allowed weaker clean air protections. [00:00:54] Speaker 05: EPA responded in the challenged actions, but rather than actually amend the text of its remaining regulations, effectively invented a new regulation to again allow it to weaken clean air protections. [00:01:06] Speaker 05: Here, we're challenging EPA's claim that it has authority to terminate clean air anti-backsliding protections in a way it's binding national regulations concededly bar. [00:01:17] Speaker 05: After claiming this authority, EPA used it to weaken clean air protections in Dallas and Houston. [00:01:22] Speaker 05: These areas continue to violate ozone standards through today. [00:01:26] Speaker 05: As a result, even as EPA terminated clean air protections in the challenged actions and their predecessors, EPA has been slowly inching clean air protections back toward where they had been before EPA weakened them. [00:01:40] Speaker 05: EPA's actions delay key public health protections. [00:01:44] Speaker 05: I'd like to begin by addressing our central merits argument. [00:01:47] Speaker 07: EPA laughs. [00:01:49] Speaker 07: Can we begin with Venu, please? [00:01:51] Speaker 07: Sure, let's talk. [00:01:53] Speaker 07: Yeah, I think I think all three of us would like to hear about venue. [00:01:56] Speaker 05: Okay, so a principal conclusion of the challenged actions is that EPA has authority new authority to terminate anti backsliding protections in any area by applying 7407 D3E under a vote standard. [00:02:12] Speaker 05: That's a principal conclusion of the actions, as I said, and it's nationally applicable action that must be reviewed in this court. [00:02:19] Speaker 07: But the rule, the rule itself, the title of the rule, the title of the rules is all about Texas, Houston, Galveston. [00:02:33] Speaker 07: The the rules themselves expressly say [00:02:39] Speaker 07: that nothing in this action has legal effects anywhere else. [00:02:43] Speaker 07: And the technical support documents, which is all about full of actual findings having to do with these two communities. [00:02:53] Speaker 07: That's it. [00:02:56] Speaker 05: Well, EPA did take some action that's regionally applicable, but all of that action flowed from... Let me just finish. [00:03:03] Speaker 07: And our responsibility here is all we do is look at the face. [00:03:07] Speaker 07: That's it. [00:03:08] Speaker 07: Under our case law, right? [00:03:09] Speaker 07: We just look at the document. [00:03:12] Speaker 07: And everything on the face of the document says it's locally applicable. [00:03:22] Speaker 05: Well, I disagree with that in the action. [00:03:26] Speaker 07: I know you disagree, but why? [00:03:28] Speaker 05: Right on the face of the action, EPA made a sweeping claim of new authority that it concedes effectively overrides its national regulations. [00:03:36] Speaker 05: And right on the face of its action, it relied on this court's nationally applicable decision in South Coast II to make that claim. [00:03:42] Speaker 05: Again, right on the face of its actions, EPA did not expressly limit the scope of its claims. [00:03:48] Speaker 07: You're now focusing on the notwithstanding clause of the statute, right? [00:03:51] Speaker 07: You're now saying, okay, this is locally applicable, but [00:03:55] Speaker 07: it's based on a determination of nationwide scope or effect, right? [00:03:59] Speaker 07: That's the argument you're making now, correct? [00:04:03] Speaker 05: No, I'm still arguing that it's nationally applicable. [00:04:05] Speaker 05: We do argue in the alternative that even if it's regionally applicable, only regionally applicable, that EPA acted unlawfully and arbitrarily. [00:04:14] Speaker 07: Suppose I don't agree with you about the first point. [00:04:18] Speaker 07: I'd like you to focus on the one issue that I actually think is pretty intriguing in this case, which is [00:04:24] Speaker 07: Your argument that we actually can review EPAs, the fact that EPA did not make the finding in the notwithstanding clause. [00:04:36] Speaker 07: It didn't do that. [00:04:37] Speaker 07: And your argument, as I understand it, is that we can review that as an arbitrary capricious agency action, correct? [00:04:45] Speaker 05: That's correct, just as Judge Silverman said in a concurring opinion. [00:04:49] Speaker 07: OK, well, OK. [00:04:54] Speaker 07: But this is an issue the court has not decided, correct? [00:04:57] Speaker 04: That's correct, yes. [00:04:59] Speaker 07: So can I ask you to look at the statute itself? [00:05:01] Speaker 07: It's got two separate if clauses, right? [00:05:07] Speaker 07: It says, if such action is based on. [00:05:14] Speaker 07: And then it says, and if the administrator finds. [00:05:19] Speaker 07: So there's two things that have to happen. [00:05:24] Speaker 07: It has to be based on and that EPA has to so find. [00:05:29] Speaker 07: In other words, the way the statute structured with two if clauses connected by and it clearly contemplates the possibility that you could have a locally applicable action that's based on a nationwide scope or effect that the agency chooses not to so find. [00:05:49] Speaker 07: And what I don't understand is how would we review that? [00:05:54] Speaker 07: What's the standard we would use to review that? [00:05:57] Speaker 07: It can't be that the action is based on a determination of nationwide scope of effect. [00:06:07] Speaker 07: It can't be that, right? [00:06:08] Speaker 07: So what is it? [00:06:10] Speaker 05: Well, as this court and other courts have [00:06:14] Speaker 05: held, the act has an overall design of centralizing review in this court of actions of nationwide importance. [00:06:24] Speaker 05: That provides a touchstone along with the- I understand that. [00:06:28] Speaker 07: Just help me with the language of the statute. [00:06:32] Speaker 07: It's got two if clauses connected by an and. [00:06:37] Speaker 07: And I understand what you're saying about the purpose of the statute, but this language seems [00:06:45] Speaker 07: awfully clear to me. [00:06:51] Speaker 07: So go back to my question. [00:06:54] Speaker 07: Let's assume that I agree with you that this action, based on a determination of nationwide scope, let's accept that for the moment. [00:07:06] Speaker 07: What standard would the court use to evaluate the agency's failure to make the finding [00:07:14] Speaker 07: and publishing the finding. [00:07:16] Speaker 07: How would we do that? [00:07:18] Speaker 07: What would we say? [00:07:20] Speaker 05: Well, in this particular instance, I'm going to divide the answer into two pieces here. [00:07:28] Speaker 05: First is just sort of the general principles of reviewability of administrative action, which put all of the presumptions in favor of reviewability here. [00:07:37] Speaker 05: This isn't an area traditionally not. [00:07:39] Speaker 07: I accept that. [00:07:40] Speaker 05: Okay, the question is whether there is no meaningful standard drawn from the statute and the implementing regulations as this court is held in numerous cases by which the agent by which the court could, you know, [00:07:55] Speaker 05: measure EPA's action against. [00:07:58] Speaker 05: And my point is the statute provides a measure. [00:08:03] Speaker 05: EPA has to provide some explanation of how its decision to or not to direct review to this court is consistent with the overall design of the statute to centralize review in this court of actions of making wide importance. [00:08:18] Speaker 07: But the statute says if the EPA makes such a fine. [00:08:23] Speaker 07: It doesn't require the EPA to make a finding one way or the other. [00:08:26] Speaker 07: It just says if it makes the finding of national applicability, that suggests that it's free not to make such a [00:08:33] Speaker 05: it may be free to not make a finding in particular cases, we asked for it to make the finding and it provided no explanation whatsoever of its refusal. [00:08:45] Speaker 05: This is classic agency action where it's just refusing a request. [00:08:51] Speaker 05: That's reviewable under an arbitrary and capricious standard, I think. [00:08:57] Speaker 01: If you ask whether [00:09:02] Speaker 01: the agency arbitrarily refused to find national scope, wouldn't that necessarily collapse the two prongs into one? [00:09:20] Speaker 05: No, I don't think it would. [00:09:21] Speaker 01: There's this odd structure to this, as Judge Tatel said, two things have to happen to trigger the notwithstanding clause. [00:09:33] Speaker 01: The action must in fact be based on a determination of nationwide scope. [00:09:39] Speaker 01: And the second is the agency has to so find. [00:09:44] Speaker 01: We're reviewing whether or not they arbitrarily refuse to make a finding. [00:09:48] Speaker 01: We're necessarily reviewing whether or not the decision was nationwide in scope. [00:09:58] Speaker 05: I think for the question of, I think there's a different way of looking at this. [00:10:03] Speaker 05: And this is a way the agency has actually followed. [00:10:07] Speaker 05: What the IF clause does, among other things, is it provides the agency discretion to take an action that's locally or regionally applicable [00:10:18] Speaker 05: but make the underlying determination apply throughout the whole country, even if it doesn't have to. [00:10:25] Speaker 05: It's done this in administrative actions. [00:10:28] Speaker 05: And that provides substantial independent meaning for the finding clause. [00:10:36] Speaker 05: And so I think our reading just doesn't collapse them into one. [00:10:44] Speaker 05: an example of where the agency is. [00:10:47] Speaker 01: Sorry, walk me through that a little bit. [00:10:49] Speaker 01: I mean, the reasoning in the rule is either nationwide in scope or it isn't, right? [00:11:02] Speaker 05: Well, the agency provided no reasoning for refusing to make the finding. [00:11:07] Speaker 01: No, but your theory is the [00:11:11] Speaker 01: underlying rationale of the rule is nationwide in scope and that proposition is so obvious that it would be arbitrary to include otherwise. [00:11:24] Speaker 05: Yes, that's our principal argument. [00:11:27] Speaker 05: But if the court disagrees with that, it could always remand to the agency because the agency provided no reasons whatsoever for refusing to make a finding. [00:11:37] Speaker 05: It's never disagreed. [00:11:40] Speaker 07: Is that right? [00:11:43] Speaker 07: As I read your comments before the agency, it was that, correct me if I'm wrong about this, I thought you said the EPA [00:11:54] Speaker 07: was required under the statute to make a based on finding if the determination was based on. [00:12:03] Speaker 07: And they responded to that by pointing out that there was a second clause to the statute. [00:12:11] Speaker 07: Isn't that right? [00:12:13] Speaker 05: No, I think they said we didn't make the finding. [00:12:15] Speaker 05: They never said why they weren't making the finding. [00:12:18] Speaker 05: They just said we were not making a finding here. [00:12:23] Speaker 07: Your argument was [00:12:25] Speaker 07: This is based on nationally applicable rule, and therefore EPA has to make the finding. [00:12:32] Speaker 07: That's what I read your comment is saying. [00:12:34] Speaker 07: And EPA responded to that by saying, you're ignoring the second clause. [00:12:39] Speaker 07: It's just as if. [00:12:42] Speaker 07: Am I missing something? [00:12:43] Speaker 05: I mean, I disagree. [00:12:44] Speaker 05: We said there's no lawful or rational basis for it not to expressly find and publish that it's making a finding. [00:12:52] Speaker 05: It's basing this [00:12:55] Speaker 05: this action on a determination of nationwide scope or effect. [00:12:59] Speaker 05: And then the agency, sorry, the agency just said, it said, nowhere in the proposal or in this final action did EPA make a finding that the determination is based on a determination of nationwide scope or effect. [00:13:21] Speaker 05: and therefore the requirements of the statute haven't been met. [00:13:24] Speaker 05: That's at JAA 18. [00:13:25] Speaker 05: It didn't provide any textual analysis anywhere to back itself up. [00:13:32] Speaker 05: It's just not providing any reasons for not making a finding it doesn't disagree with. [00:13:38] Speaker 05: Sorry, just epitomizes arbitrariness. [00:13:43] Speaker 05: Judge Katzis, you were asking me about sort of the mechanics of [00:13:48] Speaker 05: how the finding clause still has independent effect. [00:13:51] Speaker 01: Yeah, because I mean, the only standard, I can easily see a standard for doing this. [00:13:58] Speaker 01: The difficulty in your position is it's exactly the same standard we would use for reviewing the first clause. [00:14:05] Speaker 01: And that seems to collapse too. [00:14:10] Speaker 01: Nationwide effect and the agency says nationwide. [00:14:16] Speaker 05: There are circumstances where the agency would not have to make a based on finding. [00:14:23] Speaker 05: I'd refer to 86 Fedreg 13716. [00:14:28] Speaker 05: This is a real world example where the agency was asked to review a site specific permit. [00:14:36] Speaker 05: And it did that. [00:14:37] Speaker 05: And it said, you know what, we're not gonna object to this permit because we're interpreting the statute to say that certain requirements aren't applicable requirements. [00:14:47] Speaker 05: And in that particular action, the agency said, we like this interpretation so much. [00:14:53] Speaker 05: We think it's a really good interpretation. [00:14:55] Speaker 05: We want it to apply across the country. [00:14:58] Speaker 05: So that's a circumstance where the if clause is totally, you know, what the agency does has, [00:15:06] Speaker 05: It's not controlled by the statute. [00:15:08] Speaker 05: It has discretion to act or not to act. [00:15:11] Speaker 05: It had to provide a reasonable basis for making that decision. [00:15:15] Speaker 05: And I think that can be reviewed to see under standard arbitrary and capricious principles is the [00:15:28] Speaker 05: Is there actually something here that could be of nationwide scope and effect? [00:15:32] Speaker 05: Is the agency's explanation for why it's making this of nationwide scope and effect? [00:15:39] Speaker 05: Is that reasonable under the statute? [00:15:41] Speaker 05: It's just standard administrative law. [00:15:44] Speaker 05: And the agency didn't do anything like that here. [00:15:47] Speaker 05: And so I think that's a reviewable issue. [00:15:51] Speaker 05: And if the court agrees, either the court should just [00:15:58] Speaker 05: there's no other conclusion the agency could come to other than that it should find and publish that this is of nationwide scope and effect because of the, well, because. [00:16:14] Speaker 02: I don't understand the real world example that you use. [00:16:19] Speaker 02: I'm not familiar with that example offhand, but. [00:16:21] Speaker 02: that as I understand the context, what you're saying is there could be administrative determination that otherwise wouldn't have nationwide scope or effect, but then the agency can decide that it wants it to have nationwide scope or effect. [00:16:34] Speaker 02: And so it certifies it as such. [00:16:37] Speaker 02: And therefore the second part of this second clause is given effect. [00:16:43] Speaker 02: But what about the situation in which in which the [00:16:49] Speaker 02: underlying determination does have nationwide scope or effect, then what is it? [00:16:55] Speaker 02: The statute, there's no standard to determine how the agency's exercising its authority under the second clause of this provision because it just piggybacks on the first clause. [00:17:09] Speaker 02: The agency has to have some independent authority under the structure of the statute not to make the finding [00:17:16] Speaker 02: that the action is based on a nationwide scope or effect, even if the finding in fact is? [00:17:22] Speaker 05: I mean, if the finding may rest on some [00:17:33] Speaker 05: nationwide scope or some determination of nationwide scope or effect. [00:17:36] Speaker 05: I'm sorry, if the action may rest on some finding of nationwide scope or effect. [00:17:40] Speaker 05: I think the agency's obligation to make and publish a finding still serves a purpose. [00:17:47] Speaker 05: It provides an easy locus for judicial review. [00:17:51] Speaker 05: It clarifies what the agency's thinking and makes it easier. [00:17:55] Speaker 05: And in a close question where it might be, it might not be, it gives the agency discretion to find that it's not. [00:18:02] Speaker 05: Here, I don't think we're in that situation, but the court doesn't have to reach that question here. [00:18:11] Speaker 05: Even if the agency has some discretion over whether to make the finding in any given circumstance, it needs to provide reasons. [00:18:21] Speaker 05: It needs to provide reasons that are linked to the statute, and here it didn't. [00:18:26] Speaker 05: And I think that necessitates a remake. [00:18:31] Speaker 07: Suppose all it said was, in each case where it makes or doesn't make a determination like this, suppose all the agency said was, in this case, in one case, we want a nationally, we want a binding, we want a DC Circuit opinion because it'll be nationally applicable. [00:18:52] Speaker 07: And in other cases, they say, we're not ready for that. [00:18:56] Speaker 07: we still want to litigate this in the circuits. [00:19:00] Speaker 07: That enough? [00:19:04] Speaker 05: I think it would have to look back to, again, the underlying purpose of the statute. [00:19:10] Speaker 07: I'm just asking, I'm giving you the hypothetical. [00:19:14] Speaker 07: You think that wouldn't survive. [00:19:16] Speaker 07: In other words, if they said in this case, suppose the sentence they added was, [00:19:22] Speaker 07: This is still a relatively new regulation, and we'd like to litigate this regionally for a while. [00:19:30] Speaker 07: We're not ready for a DC Circuit decision that would apply nationwide under our regulation. [00:19:35] Speaker 07: That's the judgment they're making in enforcing this part of the act. [00:19:41] Speaker 07: Is that not enough? [00:19:43] Speaker 05: In some cases, that might be enough. [00:19:45] Speaker 05: I don't think that would be enough in this case, but in some cases, it might. [00:19:49] Speaker 07: Well, what more would you want them to say? [00:19:51] Speaker 05: I think it would depend on the particular case. [00:19:59] Speaker 05: Here, I think they would need to explain how what they're doing is consistent with their regional consistency regulations and is consistent with the centralizing design of the act. [00:20:21] Speaker 04: That's, they would need to provide some sort of explanation that's consistent with the statute. [00:20:30] Speaker 01: One more question on, along these lines, which is let's distinguish what may be two different agency actions here. [00:20:44] Speaker 01: One is revoking the backsliding rules for Dallas and Houston. [00:20:51] Speaker 01: and that's final agency action, that's reviewable, that will be reviewed one way or the other. [00:21:00] Speaker 01: But what we're talking about here for purposes of venue is simply the agency's refusal to make this certification of nationwide scope. [00:21:13] Speaker 01: Now, why is that final agency action? [00:21:18] Speaker 01: Normally, final agency action has to have some concrete effect on the parties. [00:21:25] Speaker 01: And here, the only consequence of that determination is to determine whether you get review in this quarter in the Fifth Circuit. [00:21:39] Speaker 05: Well, I mean, it certainly is an agency action. [00:21:42] Speaker 05: I think the question is. [00:21:44] Speaker 01: But finality has not only some element of definitiveness, it has some element of tangible impact on the regulated party. [00:22:00] Speaker 05: That's an interesting question, Your Honor. [00:22:01] Speaker 05: It's obviously not one that came up in the briefing. [00:22:09] Speaker 01: But it sort of goes to venue, right? [00:22:12] Speaker 01: You're asking us to review what may not be a final agency action here. [00:22:19] Speaker 05: I mean, the agency put it as part of the final action. [00:22:22] Speaker 05: I think [00:22:31] Speaker 05: a venue determination may have impacts on, you know, a case outcome, which may have legal impacts, but I. Yeah, I don't know of any cases one way or the other. [00:22:41] Speaker 01: It may be a question of first impression, but thanks. [00:22:45] Speaker 01: I'm not aware. [00:22:47] Speaker 02: Um, well, we will give you some time for rebuttal. [00:22:54] Speaker 02: Mr Johnson will give you back the time you asked for, but let me make sure my colleagues don't have additional questions for you at this time. [00:23:02] Speaker 02: Thank you. [00:23:02] Speaker 02: Maybe we'll hear from agency council now. [00:23:05] Speaker 02: Thank you, Mr Johnson. [00:23:10] Speaker 02: It's Greenfield. [00:23:18] Speaker 03: May it please the court. [00:23:19] Speaker 03: My name is Megan Greenfield and I'm here on behalf of EPA. [00:23:23] Speaker 03: I'll be sharing four minutes of my time this morning with Aaron Street with intervener. [00:23:28] Speaker 03: Petition for review should be dismissed because venue is proper in the Fifth Circuit, not here. [00:23:34] Speaker 03: This court held in Artva that SIP approval actions like the ones at issue here are prototypical locally or regionally applicable actions that are reviewable in the regional courts of appeals. [00:23:47] Speaker 03: Further confirming that the actions here are regionally applicable, the face of the actions has direct legal consequences only for the Houston and Dallas areas. [00:23:57] Speaker 02: Can I just start with the first part of what you said, which is that this is essentially a SIP approval? [00:24:03] Speaker 02: Because I didn't read your brief to be relying on that because I was going to ask you some questions about that. [00:24:08] Speaker 02: But do you think that everything that's being done here is a SIP approval or maybe a SIP modification? [00:24:15] Speaker 03: That's a complicated question. [00:24:16] Speaker 03: It's certainly the case that certain aspects of this action are actions under 42 USC 7410, which is the SIP approval aspect of the act. [00:24:27] Speaker 03: That includes, for example, the approval of the maintenance plan and also the removal of the anti-backsliding requirement. [00:24:34] Speaker 03: So we think that those are parcel of SIP approval actions and so they fall within [00:24:39] Speaker 03: What else is there? [00:24:46] Speaker 02: So what is arguably outside of that? [00:24:52] Speaker 03: So I think there are other aspects of that. [00:24:54] Speaker 03: And to be candid, it wasn't fully briefed and developed in the record here what precisely those authorities were. [00:25:01] Speaker 03: But I can provide for the briefing to the court or a 28-jai letter on that issue. [00:25:07] Speaker 02: But I'm just wondering, does the agency, without going into post-argument briefing or anything, for present purposes, does the agency think that the language of the statute that speaks specifically in terms of SIP approvals governs this entire case? [00:25:22] Speaker 03: It governs venue for this action. [00:25:25] Speaker 03: Yes. [00:25:25] Speaker 02: For both Houston and Dallas, you think that the first part of the statute, it's clear because it has to be regionally or locally applicable because the statute itself says that SIP approvals are regionally or locally applicable. [00:25:41] Speaker 02: Right. [00:25:41] Speaker 03: It creates a presumption that they are, and these are those. [00:25:46] Speaker 03: Yes, that's correct. [00:25:47] Speaker 02: Why does it just create a presumption? [00:25:49] Speaker 02: Isn't it more than a presumption? [00:25:50] Speaker 02: Or am I wrong about that? [00:25:51] Speaker 03: I think that there are sometimes there are actions taken under 7410, which are nationally applicable. [00:25:57] Speaker 03: And those include like actions where EPA bundles together many, many different actions for different states. [00:26:05] Speaker 03: Sometimes those are considered nationally applicable. [00:26:07] Speaker 03: But here, where we're speaking to just two specific areas, there's no question that they're regional. [00:26:17] Speaker 03: The petitioners argued. [00:26:20] Speaker 07: Can I ask you about the argument we were discussing with your opponent there about your position that under the notwithstanding clause the agency's decision regarding nationally up close unreviewable, right? [00:26:35] Speaker 03: Right. [00:26:36] Speaker 03: We think that the Fifth Circuit and the Texas VEPA case got it right. [00:26:40] Speaker 07: Yeah. [00:26:40] Speaker 03: and that it's committed to agency discretion by law. [00:26:43] Speaker 07: So let me just ask you two things. [00:26:45] Speaker 07: Is it unreviewable? [00:26:46] Speaker 07: Let's assume we got a case, two different kinds of cases, a case like a case where the agency says nothing or a case where it says it is national, it makes the finding. [00:27:01] Speaker 07: Is that not reviewable either? [00:27:04] Speaker 03: This is where I get, there's a difference there. [00:27:06] Speaker 03: I think if EPA makes a finding that's nationally applicable, [00:27:10] Speaker 03: then that is reviewable. [00:27:12] Speaker 03: But EPA's decision not to make a finding is unreviewable. [00:27:21] Speaker 01: But we're not really reviewing whether or not they made the finding. [00:27:28] Speaker 01: We're reviewing whether the finding is arbitrary and capricious, right? [00:27:35] Speaker 03: Right. [00:27:35] Speaker 03: In that case, you're- Because of the first wrong of- Absolutely. [00:27:39] Speaker 01: You're not- The first half of the second, the notwithstanding clause. [00:27:43] Speaker 03: Right. [00:27:43] Speaker 03: You're not reviewing the administrator's decision to make a finding so much as the finding itself. [00:27:50] Speaker 02: Well, not the finding. [00:27:51] Speaker 02: In a case in which, in answer to Judge Schadl's question, I thought what you said was in a situation in which the action at issue [00:28:01] Speaker 02: is based on a determination nationwide scope or effect and the administration administrator so finds and publishes and what would be reviewed would it be the the agency's finding or would it be whether the action is based on a determination of nationwide scope or effect whether it's based on a determination of nationwide scope right so so there's no [00:28:23] Speaker 02: there's no daylight between whether the action, in fact, is based on a determination nationwide scope or effect and the agency's finding to that extent. [00:28:32] Speaker 02: What's going to be reviewed is the underlying substantive question of whether the action, in fact, is based on a determination nationwide scope or effect. [00:28:40] Speaker 02: And of course, the agency is going to have an argument as to why it is, having made the finding, and that argument would have to be [00:28:45] Speaker 02: taking cognizance of. [00:28:46] Speaker 02: But I didn't understand your argument to mean that there would be two different things that would be reviewed. [00:28:51] Speaker 02: There would be one, which is the underlying question of whether the action, in fact, was based on a determination of nationwide scope. [00:28:57] Speaker 07: That's correct. [00:29:02] Speaker 07: So here, the agency was asked to make a finding and it didn't, correct? [00:29:09] Speaker 07: That's correct. [00:29:10] Speaker 07: So why? [00:29:12] Speaker 07: Explain to me then the difference between that [00:29:15] Speaker 07: in a situation where it makes the finding and it makes a negative finding on its own? [00:29:23] Speaker 07: Or would it never do that? [00:29:25] Speaker 03: No, the agency's practice is not to make affirmative negative findings that are part of the record. [00:29:31] Speaker 07: In other words, the agency either remains silent or it makes an affirmative finding, right? [00:29:36] Speaker 03: That has been the practice. [00:29:37] Speaker 07: That's been the practice. [00:29:38] Speaker 03: Right. [00:29:39] Speaker 03: That's correct. [00:29:40] Speaker 07: Suppose I don't think this is analogous to prosecutorial decisions. [00:29:46] Speaker 07: Do you have any other analogies of other actions that courts have found to be unreviewable that would fit this case? [00:29:55] Speaker 07: I mean, this doesn't sound like a prosecutorial decision to me. [00:29:59] Speaker 03: I can see that it is different than prosecutorial discretion. [00:30:02] Speaker 03: But there aren't criteria in the statute that the court could review in determining whether or not the administrator made a good decision to find and publish the finding. [00:30:15] Speaker 03: And the way the agency has viewed that clause is it allows the agency discretion to determine when it feels that the action is or looking at it's going to have a nationwide effect and wants to direct to the DTC circuit when it's really making a nationwide policy. [00:30:32] Speaker 07: Suppose you have a case where, I realize this is not this case, but you'd say this is unreviewable, period. [00:30:38] Speaker 07: Suppose you have a case where [00:30:40] Speaker 07: if there's a pattern, it's totally clear that the EPA is acting arbitrarily. [00:30:45] Speaker 07: I mean, for example, suppose there's evidence that they're making the finding in red states, but not blue states. [00:30:52] Speaker 07: Not reviewable? [00:30:55] Speaker 03: So I think that the answer is that the decision not make finding is unreviewable. [00:31:00] Speaker 03: I think there's a separate question about whether or not [00:31:05] Speaker 03: the action itself is nationally applicable. [00:31:07] Speaker 03: And that is clear that it directs it to this court. [00:31:11] Speaker 07: Wait, I lost that. [00:31:12] Speaker 07: So suppose there's 10 cases around the country. [00:31:20] Speaker 07: We all agree it's based on a nationally applicable standard. [00:31:25] Speaker 07: But they're only making the findings in blue states and not red states. [00:31:31] Speaker 03: I think that would be obviously a much harder case than this one. [00:31:34] Speaker 03: I think there too, it is unreviewable because there aren't criteria in the statute for the court to examine in determining whether or not the agency made the right call in finding and publishing the determination. [00:31:48] Speaker 03: And here, just for background, I think it's important to understand why the agency acted the way it did here. [00:31:54] Speaker 03: So shortly after the 2015 ozone rule was published, EPA took two actions applying the redesignation substitute mechanism that was for Dallas and for Houston. [00:32:05] Speaker 03: And once this court's decision in South Coast 2 came down and vacated the redesignation substitute mechanism, it became clear that those actions were fatally flawed. [00:32:14] Speaker 03: And so EPA wanted to expeditiously address and replace those fatally flawed actions. [00:32:19] Speaker 03: And that's why it, [00:32:21] Speaker 03: took the action it did here first before undertaking a national rulemaking. [00:32:25] Speaker 03: So, judge, to your earlier question, there's no question at all that here the agency was acting reasonably in taking these regionally applicable actions. [00:32:35] Speaker 02: Well, it was taking the same action that it took before our decision in South Coast II. [00:32:41] Speaker 02: It's just that after the decision in South Coast II, the agency decided that it couldn't rely on the same rationale, so it had to redo the rationale. [00:32:47] Speaker 02: But in other words, the scope of the decision isn't any different [00:32:50] Speaker 02: than the scope of the decision that was made and that's now pending before the Fifth Circuit. [00:32:54] Speaker 03: That's absolutely correct. [00:32:56] Speaker 02: It just displaced that other decision. [00:32:57] Speaker 03: Just replaced those regionally applicable actions which were challenged in the Fifth Circuit? [00:33:02] Speaker 03: That's correct. [00:33:03] Speaker 03: So the agency's action here was based on a new supplemented record so that it's more fulsome and reflects the course criteria itself. [00:33:10] Speaker 02: Can I ask a question about reviewability? [00:33:11] Speaker 02: So the statute says that what the agency can do [00:33:18] Speaker 02: is that the agency can find and publish that such action is based on a determination. [00:33:22] Speaker 02: If the agency finds it but doesn't publish it, can the agency make the decision, in other words, to make the finding but not to publish it in order to assure that the review of something that does have nationwide scope or effect would only be reviewed in a different circuit? [00:33:38] Speaker 03: I think that those two, the find and publish, have distinct meaning. [00:33:43] Speaker 03: That's the Lion Oil case out of the Eighth Circuit. [00:33:45] Speaker 03: And their EPA had made a decision that was relevant to a specific facility. [00:33:50] Speaker 03: And it made the finding. [00:33:51] Speaker 03: It made the affirmative filing. [00:33:52] Speaker 03: This has nationwide scope or effect. [00:33:54] Speaker 03: But it failed to publish it. [00:33:56] Speaker 03: It only gave it to that individual. [00:33:59] Speaker 03: And so it didn't publish it in the Federal Register or otherwise publicize it. [00:34:03] Speaker 03: And the Eighth Circuit said, no, this is not [00:34:07] Speaker 03: venues not proper in the DC circuit, you didn't meet the criteria of the statute because you didn't both find and publish the action. [00:34:14] Speaker 03: Here there's no question that the EPA's actions would be published because they're required to be published in the Federal Register. [00:34:21] Speaker 07: Is there a reason that the agency would find but not publish? [00:34:25] Speaker 07: I mean, in the Eighth Circuit, was that kind of a mistake? [00:34:28] Speaker 07: It was a mistake. [00:34:29] Speaker 03: Yes, and we asked in the Eighth Circuit, can we please have a second chance and correct it? [00:34:34] Speaker 03: And we were to decline. [00:34:36] Speaker 07: So another hypothetical, suppose we agree with you about venue. [00:34:43] Speaker 07: We could either [00:34:46] Speaker 07: Transfer the case or dismiss the case. [00:34:48] Speaker 07: Does that make a difference from EPA's point of view? [00:34:51] Speaker 03: It doesn't make a difference here. [00:34:52] Speaker 03: There is a protective petition in the Fifth Circuit, so you don't need to go through the trouble of transferring. [00:34:57] Speaker 03: You can just dismiss, and then the Fifth Circuit litigation can begin. [00:35:03] Speaker 02: That was a hypothetical. [00:35:04] Speaker 03: If you have no further questions, I ask that the petition for review be dismissed. [00:35:08] Speaker 02: Thank you. [00:35:08] Speaker 02: This is Greenfield, Mr. Street. [00:35:17] Speaker 06: Thank you your honor may please the court be very brief and on the venue point with with 2 quick points. [00:35:24] Speaker 06: And the first is just that. [00:35:25] Speaker 06: The way I look at this question is how would. [00:35:29] Speaker 06: the review that's advocated by petitioners be any different if the first if clause was the only clause in the statute. [00:35:37] Speaker 06: I don't think they've satisfactorily answered this court's questions on that. [00:35:41] Speaker 06: And that's precisely what the Fifth Circuit said in Texas versus EPA, quoting from the quote on page seven of our brief. [00:35:49] Speaker 06: Deer club breeding gives no independent meaning to the text conditioning venue on whether the administrator finds and publishes a nationwide determination [00:35:59] Speaker 06: Second and final point, of course, subject to this court's questions. [00:36:03] Speaker 06: I think the argument that the EPA has not given reasons for failing to make a finding illustrates this superfluity point because the EPA did give a lot of reasons about why this rule was not based on the determination of nationwide scope. [00:36:20] Speaker 06: And those are the same reasons that it would give about why it did not make the findings. [00:36:23] Speaker 06: So when petitioner is saying it hasn't given reasons for failing to make the finding, it's because those are the same reasons it gave at JA 17 and 18 for why this was not a rule of nationwide scope or determination. [00:36:35] Speaker 02: Did you think that those went to whether it's a determination, that there is a determination nationwide scope or effect, what's on 17 or 18, or did it go to whether the action is nationally applicable? [00:36:47] Speaker 02: I think it went to both. [00:36:48] Speaker 06: I think that's the fair rating of what. [00:36:53] Speaker 06: No further questions. [00:36:54] Speaker 06: We'll join in asking that this is being transferred. [00:36:57] Speaker 02: Thank you, Mr Street. [00:37:03] Speaker 02: Mr Johnson, you asked for three minutes for rebuttal. [00:37:05] Speaker 02: We'll give you that. [00:37:08] Speaker 05: Thank you, Your Honor. [00:37:09] Speaker 05: I appreciate it. [00:37:10] Speaker 05: Um, I think [00:37:12] Speaker 05: I think the court's questions illustrate that there are potentially illegal or arbitrary bases for not making and publishing a finding that the court could adequately review. [00:37:23] Speaker 05: And that shows that this is not an unreviewable decision. [00:37:31] Speaker 05: EPA never argued that it wasn't relying on determinations of nationwide scope and effect. [00:37:37] Speaker 05: Council just now said, oh, I think the national applicability arguments apply here too. [00:37:43] Speaker 05: Dalton Trucking says that those are different findings, different tests. [00:37:50] Speaker 05: I want to reiterate also that this is a very unusual case. [00:37:56] Speaker 05: As Ms. [00:37:58] Speaker 05: Greenfield acknowledged, EPA here was acting in response to South Coast 2, a decision of this court reviewing a nationally applicable rule. [00:38:06] Speaker 05: the scope of the decision, as Ms. [00:38:08] Speaker 05: Greenfield said, is no different than it was before. [00:38:11] Speaker 05: Before, in South Coast 2, EPA had made a decision of, sorry, South Coast 2 was reviewing a decision of nationwide, nationally applicable, and so when EPA is responding to it, it's doing the same thing, similar to what happened in Producers United. [00:38:33] Speaker 02: I thought what she was saying was that it's no different from [00:38:36] Speaker 02: The original action in the Fifth Circuit, the down, is it downriders? [00:38:40] Speaker 02: I don't know the name of it. [00:38:41] Speaker 02: But the one that was brought in the Fifth Circuit on the theory that that was regionally or locally applicable. [00:38:49] Speaker 02: And I thought the argument was that this is just displacing that one. [00:38:52] Speaker 02: So this one too is regionally or locally applicable. [00:38:56] Speaker 05: The agency's actions here constituted also its response to South Coast 2. [00:39:02] Speaker 05: it applied its response to South Coast 2. [00:39:05] Speaker 05: It said, oh, our regulation has been vacated. [00:39:07] Speaker 05: Here's what we think we can do in response to it. [00:39:10] Speaker 05: And we are applying this where we had previously applied it in Dallas and Houston. [00:39:15] Speaker 05: And South Coast 2 has to apply nationally. [00:39:20] Speaker 05: EPA's interpretation of what South Coast 2 also has to apply nationally. [00:39:24] Speaker 05: That's under its regional consistency regulations. [00:39:27] Speaker 05: EPA here concedes that it's acting contrary to its currently in effect [00:39:32] Speaker 05: unamended national regulations. [00:39:35] Speaker 05: It's effectively overriding or amending them. [00:39:38] Speaker 05: That must be nationally applicable. [00:39:40] Speaker 05: Certainly, it must be a determination of nationwide scope or effect, one that EPA has never given any reasons for not making. [00:39:48] Speaker 05: In my remaining time, I just want to make two quick points. [00:39:52] Speaker 05: I would ask for a transfer. [00:39:53] Speaker 05: We filed a petition for [00:39:56] Speaker 05: A protective petition there's a little confusion about what day it was filed we filed it on time the Fifth Circuit logged it two days late for simplicity sake, I think if the court did choose to to transfer or dismiss transfer would be simpler and preserve our right to judicial review. [00:40:13] Speaker 05: I would also note that if the court dismisses or transfers that [00:40:16] Speaker 05: confirms that EPA's binding national regulations remain fully in effect throughout the country, including in Dallas and Houston. [00:40:27] Speaker 05: And I think that's an important point also. [00:40:30] Speaker 05: If the court has no further questions, I'd ask for vacatur. [00:40:35] Speaker 02: Thank you, counsel. [00:40:36] Speaker 02: Thank you to all counsel. [00:40:37] Speaker 02: We'll take this case under submission.