[00:00:00] Speaker 01: Case number 21-1159, State of Arizona et al. [00:00:04] Speaker 01: Petitioners versus Environmental Protection Agency, Michael S. Regan, Administrator. [00:00:10] Speaker 01: Mr. Ensign for the petitioners, Ms. [00:00:12] Speaker 01: Chen for the respondents. [00:00:15] Speaker 04: Good morning. [00:00:16] Speaker 04: Is it Ensign? [00:00:18] Speaker 04: It is, Your Honor. [00:00:19] Speaker 04: Welcome. [00:00:20] Speaker 04: Please proceed. [00:00:21] Speaker 03: The State Police and Court, Drew Ensign, Arizona Deputy Solicitor General for the Petitioner State. [00:00:27] Speaker 03: I'd like to reserve four minutes for rebuttal. [00:00:30] Speaker 03: The delay rule here is unlawful for three reasons. [00:00:34] Speaker 03: First, the delay rule's entire purpose is to reconsider the prior rule. [00:00:40] Speaker 03: But reconsideration, this court has been perfectly clear that the mere fact of reconsideration is not a valid basis. [00:00:46] Speaker 04: Before you get too deep into the merits, can we talk about standing? [00:00:52] Speaker 04: Absolutely. [00:00:53] Speaker 04: Your complaint is that this rule gives the states [00:00:59] Speaker 04: a greater degree of regulatory flexibility to meet the deadline. [00:01:05] Speaker 04: And we've said time and again that that kind of injury doesn't count under Article 3. [00:01:12] Speaker 04: Greater flexibility, waiving a rule that would otherwise constrain the challenger's options, that's what we [00:01:21] Speaker 03: Your Honor, I do believe we have standing here for three reasons. [00:01:24] Speaker 03: I'll kind of skip ahead to the option theory is the one that the EPA specifically advanced in Air Alliance, and this court squarely rejected it. [00:01:35] Speaker 03: That's the issue, and that was also a delay case. [00:01:39] Speaker 03: There, it was absolutely clear that New York always could have adopted the challenge rule itself, challenge standard itself more quickly, but that did not defeat standing there. [00:01:49] Speaker 04: That's your best case, but it's a different regulatory system. [00:01:58] Speaker 04: I mean, here you're locked into all of your obligations as primacy states, right? [00:02:08] Speaker 04: You're going to have to enforce the federal standard either way. [00:02:16] Speaker 04: I think that's right. [00:02:16] Speaker 04: The only question you haven't said [00:02:20] Speaker 04: Gosh, we would otherwise opt out of primacy and there might be injuries flowing from that. [00:02:29] Speaker 04: So we take that as a given. [00:02:30] Speaker 04: We take as a given that federal standard is what it is. [00:02:34] Speaker 04: You're going to have to enforce it. [00:02:36] Speaker 04: And the only question is when you promulgate your conforming regs to make your own standards equal to or greater than the federal standards. [00:02:49] Speaker 03: Your honor, I think all of this goes to compliance costs. [00:02:51] Speaker 03: So I'd like to go through that circle back on the others. [00:02:55] Speaker 03: We don't think we don't think the fact that we're primacy states or direct regulators here is a distinction with airlines that hold the weight. [00:03:02] Speaker 03: If anything, it means that we have less choice than New York did there. [00:03:06] Speaker 03: New York was essentially much less bound and had greater optionality, whereas as primacy states, we effectively have less choice. [00:03:14] Speaker 03: And the subject matter also makes it such that [00:03:17] Speaker 03: As a practical matter, we have less choice as well. [00:03:20] Speaker 03: We're not going to choose to not run drinking water systems. [00:03:22] Speaker 03: That would be catastrophic. [00:03:25] Speaker 03: But turning to the cost, even if you accepted EPA's premise of this choice argument, which this court rejected in their alliance, it still would only account for part of the state's farms and not all of them. [00:03:37] Speaker 03: And that's because even if the states adopted this option to adopt these standards earlier, [00:03:45] Speaker 03: Other states would not need to, and other states would in fact take the option that EPA is offering them to delay that. [00:03:52] Speaker 03: EPA has calculated that that will cause permanent brain injury in children to occur. [00:03:58] Speaker 03: They have not disputed our evidentiary submissions. [00:04:02] Speaker 03: That is a result that will be increased Medicaid and Medicare expenditures. [00:04:06] Speaker 03: And many of those children will move to petitioner state. [00:04:09] Speaker 04: Indeed, Arizona... And so this 2017, the January [00:04:14] Speaker 04: 2021 rule was so underprotective. [00:04:23] Speaker 04: But there's a challenge to that rule. [00:04:26] Speaker 04: It's brought by people you would expect to be bringing a challenge to that kind of rule, which are the environmental groups. [00:04:34] Speaker 04: And none of the states are involved in [00:04:37] Speaker 03: That's correct. [00:04:38] Speaker 03: But I don't think that has any legal significance. [00:04:41] Speaker 03: I mean, here we have EPA itself is quantified. [00:04:43] Speaker 04: But I mean, it makes it seem a little bit rich. [00:04:46] Speaker 04: Your your standing theory that kids all over the country will be getting brain damage and moving into your states and you'll have Medicare costs, Medicaid costs, whatever. [00:04:59] Speaker 04: When there's a direct challenge to the rule and none of the states even bother to join it. [00:05:05] Speaker 03: Your honor, ultimately, I don't think it bears on the standing analysis. [00:05:09] Speaker 03: Here what we're dealing with is a statistical certainty that these things will happen. [00:05:12] Speaker 03: The numbers are calculated by EPA themselves. [00:05:15] Speaker 03: They flow inexorably and are essentially not denied here. [00:05:18] Speaker 03: So regardless of how the other case is proceeding, that doesn't affect our standing here as a legal matter. [00:05:26] Speaker 03: I think we also have standing on two other bases. [00:05:29] Speaker 05: I don't know if I heard you correctly, but [00:05:34] Speaker 05: And I don't recall seeing this in the brief, but are you saying that even if you, and by you I mean the states, the better parties, promulgated regulations that duplicated the ones that are being delayed by EPA, even if you did that, if the other states don't do it, [00:05:55] Speaker 05: then because of the interconnection of navigable waterways and so on and so forth, that you would still be subject to harm? [00:06:06] Speaker 03: Not because of navigable waterways, Your Honor, but rather because of navigation of people themselves. [00:06:11] Speaker 03: Arizona and Texas are two of the states that are most migrated to within the United States. [00:06:17] Speaker 03: And so if children incur these permanent brain injuries as a result of lead and water in other states, it's statistical certainty that many of them will move with their parents to both Arizona and Texas. [00:06:28] Speaker 05: Oh, it's the individuals that would move, not the water. [00:06:31] Speaker 05: Exactly. [00:06:31] Speaker 05: OK, because why? [00:06:32] Speaker 05: Because drinking water supplies are self-contained. [00:06:36] Speaker 05: Is that right? [00:06:37] Speaker 03: For the most part, Your Honor, I'm sure there's some that there may be edge cases where that doesn't hold. [00:06:42] Speaker 05: That's what I understood. [00:06:45] Speaker 05: wondered about the interplay between waters moving and pollution and so on and so forth. [00:06:54] Speaker 03: That's not part of your... That's correct. [00:06:57] Speaker 03: Our standing theory is based on the movement of people and not the waters. [00:07:00] Speaker 04: This is not a Wodish case. [00:07:05] Speaker 03: I do want to quickly highlight two other bases that we think standing exists. [00:07:08] Speaker 03: The first is this court has well established [00:07:11] Speaker 03: doctrines of when someone is the regulated party or the object of the regulation at issue in the parlance. [00:07:16] Speaker 04: I'm in that. [00:07:17] Speaker 03: But you're sure. [00:07:20] Speaker 04: But when a directly regulated party has the regulation lifted, that doesn't give it standing to challenge the lifting. [00:07:33] Speaker 03: I think it might. [00:07:33] Speaker 03: And I think a case of this court that may be [00:07:37] Speaker 03: there on that a State National Bank versus Lou. [00:07:40] Speaker 03: I'm sorry, which one? [00:07:42] Speaker 03: State National Bank of Big Spring versus Lou. [00:07:44] Speaker 03: This is not cited in our briefs. [00:07:45] Speaker 03: Is it in the briefs? [00:07:46] Speaker 03: I don't recall it. [00:07:47] Speaker 03: It is not in our briefs. [00:07:49] Speaker 03: It's 795 F3rd 48. [00:07:54] Speaker 03: There, the regulated party was challenging the CFPB because of the recess appointment as well as its constitutional structure. [00:08:01] Speaker 03: This court said as the object of regulation, you have standing to challenge that structure, even in the absence of any regulation. [00:08:09] Speaker 03: So there was not yet any regulation that you could figure out if it was more or less stringent or giving me more or less. [00:08:15] Speaker 04: On what theory though? [00:08:16] Speaker 04: I assume on the theory that the CFPB would eventually do something to constrain party bringing the chap. [00:08:25] Speaker 03: I think that's implicit, Your Honor, but I think that drives home the point that where were the regulated parties subject us to illegal regulations that we're ultimately going to have to comply with? [00:08:35] Speaker 03: That's a form of injury. [00:08:38] Speaker 04: If I could just quickly walk through your one other form. [00:08:41] Speaker 04: I mean, I think your second one is more colorable than your first, but take whichever one you want. [00:08:47] Speaker 03: A single state needs one theory. [00:08:52] Speaker 04: So you've got your directly regulated party theory. [00:08:57] Speaker 04: You have your kids elsewhere will get sick and move into our state, and then we'll have to pay their medical bills theory. [00:09:08] Speaker 03: Yes, Your Honor, and I'd add Air Alliance rejects the optionality theory, at least in our view. [00:09:11] Speaker 03: And then you have a third. [00:09:13] Speaker 03: The third is, your honor, that we have compliance cost in the form of planning and familiarization cost. [00:09:21] Speaker 03: The uncertainty. [00:09:23] Speaker 03: Yes, your honor. [00:09:24] Speaker 03: So before the delay rule, it's undisputed that we would only have to prepare for a single standard. [00:09:29] Speaker 03: That's the LCRR. [00:09:31] Speaker 03: There was nothing else to plan for. [00:09:32] Speaker 03: It's less costly to plan for one option. [00:09:35] Speaker 03: As a delay rule, here's what EPA itself said the state should now do. [00:09:39] Speaker 03: EPA recommends the states consider each of these possibilities [00:09:43] Speaker 03: That was total repeal, no changes and modifications in their planning and resource allocation decision. [00:09:49] Speaker 03: The EPA itself is admitting that as a result of the delay rule, instead of planning for one standard, we now should be planning for multiple standards. [00:09:57] Speaker 04: They said a lot of things confirming the truism that they can always change the law to impose new requirements on you. [00:10:09] Speaker 04: The final agency action under review is, as far as I can tell, one and only one thing, which is the order delaying the effective date of the January 2021 revisions, which are now in effect. [00:10:28] Speaker 04: Effective, but not applicable. [00:10:30] Speaker 04: I forget the distinction. [00:10:31] Speaker 04: They are what they are. [00:10:32] Speaker 04: You know what they are. [00:10:33] Speaker 04: You plan for the T plus three years when you have to comply with. [00:10:40] Speaker 03: So, your honor, I guess a couple things about one, the EPA is not. [00:10:45] Speaker 03: It would have been just the time of our petition when it wasn't in effect, but more fundamentally, the delay rule is inextricably intertwined with the reconsideration itself. [00:10:53] Speaker 03: The two cannot be separated. [00:10:54] Speaker 03: Their EPA is explicit rationale for the delay rule. [00:10:58] Speaker 03: It's the reason they give. [00:10:59] Speaker 03: And so you can't parse the two of those. [00:11:02] Speaker 03: The delay rule is delay for reconsideration, and it's that reconsideration that causes us to incur additional. [00:11:09] Speaker 04: The reconsideration has run its course, and the amended standard has become effective. [00:11:17] Speaker 03: It has, Your Honor. [00:11:18] Speaker 03: I mean, I think there is still uncertainty as a result of what they're doing here. [00:11:22] Speaker 03: And, you know, mootness is now just a question of whether it's impossible to grant any relief. [00:11:28] Speaker 03: EPA has not even made any intention that that's not the case. [00:11:32] Speaker 03: By having some additional certainty that would allow the states to plan more directly because at least then this issue would be resolved as well as whatever is going to go forward. [00:11:45] Speaker 04: How do we eliminate, how do we reduce uncertainty if we set aside this deadline and everything just moves back six months? [00:11:56] Speaker 04: How does that [00:11:58] Speaker 04: address uncertainty. [00:11:59] Speaker 04: And they still have the authority that they have, that they inserted in December of 21, that they can ramp up the amended 2021 standards more in the future if they want to. [00:12:17] Speaker 03: Your Honor, I think that ultimately EPA's understanding of how they can proceed is something that is causing us the uncertainty here, where they [00:12:28] Speaker 03: believe they can delay things solely for the purpose of reconsidering them. [00:12:32] Speaker 03: It's something that has led to this kind of confusion. [00:12:35] Speaker 04: I'm sorry, Judge Rogers. [00:12:36] Speaker 04: I think I cut you off. [00:12:38] Speaker 00: Well, I wanted to ask counsel, the series that you offer on standing, though, what are their limitations? [00:12:47] Speaker 00: As I understand it, even a rule in effect, as Judge Katz has been pointing out to you, can be amended. [00:12:56] Speaker 00: The agency will often issue statements about we're considering whether or not we ought to amend this rule for following five reasons. [00:13:07] Speaker 00: That's uncertainty. [00:13:09] Speaker 00: And I don't understand how your theory provides any limitation such that any state at any time as to any existing rule [00:13:23] Speaker 00: can probably point to statements by high ranking agency officials that maybe we ought to reconsider this for the following five reasons. [00:13:35] Speaker 00: Or, you know very well, as Judge Katzis was pointing out to you in the beginning, the environmental groups have brought a challenge that's ongoing. [00:13:45] Speaker 00: So there's all this uncertainty in the world. [00:13:51] Speaker 00: to the extent standing has some requirement of specificity and imminence. [00:13:58] Speaker 00: How does your theory, how is it compatible with those basic requirements of standing? [00:14:09] Speaker 03: Your honor, I will certainly admit that our injury regarding year one planning has weakened since this case was filed. [00:14:16] Speaker 03: Gaming is, of course, judged the time that the petition for review is filed and where those year one compliance costs were very much wide. [00:14:22] Speaker 03: I think the fact that the rule has now taken effect would be an issue of mootness, which this court, sorry, which EPA has not seen fit to argue. [00:14:30] Speaker 03: And so that is something that they certainly could have presented and perhaps will now do, but that is not something that is in the briefs. [00:14:39] Speaker 03: So as to the current state of affairs, [00:14:42] Speaker 03: where this is now taking on more of a flavor of mootness than standing, I would admit that our self-evidence standing and our proprietary Medicaid and special education costs are now more relevant in the posture here today than they were when the petition for review was filed. [00:14:57] Speaker 03: But of course, that's when standing should be assessed. [00:15:02] Speaker 04: With taking up all your time on standing, I'll give you a little bit of time on the merits, unless my colleagues have questions on the merits, I'll just ask you [00:15:13] Speaker 03: I think your honor, I appreciate that. [00:15:16] Speaker 03: And again, our alliance makes clear that your fact of reconsideration is not a basis for delaying a rule EPA has repeatedly admitted. [00:15:24] Speaker 03: That's exactly what it did. [00:15:25] Speaker 03: That squarely violates their alliance. [00:15:27] Speaker 03: And as to the discount rate, you know, three versus seven percent utterly is positive of quantified cost benefit analysis here. [00:15:36] Speaker 03: EPA didn't even attempt to select one, let alone do so intelligibly as this court's NRDC versus Harrington case requires, and therefore that violates the APA. [00:15:48] Speaker 04: Dr. Randolph? [00:15:49] Speaker 04: Dr. Rogers? [00:15:50] Speaker 03: No. [00:15:50] Speaker 04: Thank you. [00:15:51] Speaker 04: Thank you, Your Honors. [00:15:52] Speaker 04: And we'll give you rebuttal. [00:16:03] Speaker 04: Ms. [00:16:03] Speaker 04: Chen, good morning. [00:16:04] Speaker 02: Good morning, and may it please the court, Sue Chen for the United States. [00:16:08] Speaker 02: And with me today is Leslie Jarman from EPA's Office of District Counsel. [00:16:14] Speaker 02: EPA issued the delay rule with support from a broad range of stakeholders, including Petitioner Texas. [00:16:20] Speaker 02: After a short delay, the revision is now in effect, and EPA is working on a new rule to really strengthen the revisionist protection. [00:16:27] Speaker 02: I'd like to first address standing, and then answer any questions you may have on the merits. [00:16:31] Speaker 02: Petitioners act standing to challenge the delay rule for two reasons. [00:16:35] Speaker 02: First, the delay rule, rather than create new obligations, offers primacy states and their water systems an extension. [00:16:42] Speaker 02: But what is more, the petitioner's primacy status puts them in the position of having to either accept or reject that option. [00:16:52] Speaker 02: And that is because as primacy states, petitioners must adopt the revision rule whether the delay rule exists or not. [00:17:00] Speaker 02: And so the cost of that adoption don't count for purposes of their standing. [00:17:04] Speaker 02: The question that the delay rule raises is what compliance date petitioners will write into their state regulations. [00:17:11] Speaker 02: And this is the point where they can act on EPA's offer. [00:17:15] Speaker 02: They can either accept that offer of the later October 2024 compliance date, or they can reject it and stick to the January 2024 date that came originally with the revision rule. [00:17:28] Speaker 02: And if they reject, no one in their jurisdictions get the benefit of the compliance [00:17:34] Speaker 02: Moreover, there is no evidence that rejecting EPA's offer, that writing in the word January as opposed to October, would somehow incur more costs for petitioners. [00:17:44] Speaker 02: So because petitioners can costlessly veto the delay, any delay-regulated injury would be self-inflicted. [00:17:52] Speaker 05: My second point on standing is that... Are you saying that... I'm having some difficulty understanding you because of the mask. [00:18:01] Speaker 05: Sorry. [00:18:01] Speaker 05: But are you saying that [00:18:04] Speaker 05: Number one, that the effective date is already come and gone. [00:18:07] Speaker 02: Yes. [00:18:08] Speaker 05: Right. [00:18:08] Speaker 05: And that the difference between the original rule and the delay rule is that the under the re the revision rule, it would be January, 2024 when you had to comply. [00:18:22] Speaker 02: That's right. [00:18:23] Speaker 05: But now it's October, 2024. [00:18:26] Speaker 05: Correct. [00:18:28] Speaker 05: And that if there's harm, [00:18:29] Speaker 05: it has to be between January 2024 and October 2024, is that? [00:18:36] Speaker 02: No, what I'm saying is petitioners, so the delay rule offers them the option of a later compliance date. [00:18:44] Speaker 02: And they have to either accept or reject that date. [00:18:47] Speaker 02: And they can do, they can pick whatever they want between January and October. [00:18:53] Speaker 02: And so to the extent they have any injuries relating to the delay, [00:18:58] Speaker 02: That would be because they pick the later October date. [00:19:04] Speaker 04: Or sooner, right? [00:19:05] Speaker 04: Or sooner. [00:19:06] Speaker 02: They can pick tomorrow for their compliance date if they want it. [00:19:09] Speaker 05: For compliance, you're talking. [00:19:11] Speaker 02: For the water systems in their jurisdictions to comply with the revision. [00:19:15] Speaker 02: Yes, that is the only part of the revision rule that changes thanks to the delay rule. [00:19:26] Speaker 04: It's the effective date completely isolated from the substance of the underlying. [00:19:34] Speaker 02: Because the delay rule did not let petitioners obligation to adopt the revision rule did not change any other aspect of the revision. [00:19:45] Speaker 02: They still have to adopt that rule. [00:19:47] Speaker 02: My second standing point is that the court should reject it, should reject petitioners' belated argument that people moving from other states somehow hurts them. [00:19:59] Speaker 02: This is raised for the first time in the reply on page 12 and it is forfeited because it comes too late, especially since in our motion to dismiss, [00:20:08] Speaker 02: At footnote seven, we noted that petitioners don't argue that other state actions somehow harm them. [00:20:15] Speaker 02: And in their opposition to our motion, they didn't say anything on this subject. [00:20:19] Speaker 02: They didn't say anything in their opening brief, even though the court had ordered the parties to brief the issues in the motion to dismiss. [00:20:25] Speaker 02: And there's no good cause to excuse that belated argument, because that theory that they presented in the reply fails to irrefutably show standing [00:20:35] Speaker 02: And the main problem there is that they have offered no specific facts to show that any injury is imminent. [00:20:41] Speaker 02: There's a lot of speculation built in. [00:20:44] Speaker 02: One of which is that it's not clear that their future residents will be coming from water systems that would have to take any corrective action under the light. [00:20:55] Speaker 02: So by corrective action, I mean replacing light service lines, upgrading corrosion control treatment and public education. [00:21:04] Speaker 02: And under the revision rule, water systems have to do those things only if sampling shows that their lead levels exceed certain thresholds. [00:21:13] Speaker 02: Well, in the revision rules economic analysis, EPA estimated that between 58 to 97% of community water systems would not exceed those thresholds. [00:21:25] Speaker 02: So they would not have to take any corrective action. [00:21:28] Speaker 02: And people moving from those water systems to petitioner states would not count for purposes of standing. [00:21:34] Speaker 02: And I realized that I think the court probably does not have a copy of the economic analysis because we weren't able to make this argument in our brief. [00:21:42] Speaker 02: And I'm happy to submit a link after argument to the court if that would help. [00:21:49] Speaker 02: Even for water systems that would have to take [00:21:53] Speaker 02: um, corrective action under the delay rule, when they have to do it relative to when future residents will be moving to petitioner state matters. [00:22:05] Speaker 02: Um, so under the revision rule, once the water system exceeds those thresholds, they don't have to take corrective action right away. [00:22:15] Speaker 02: Um, [00:22:16] Speaker 02: You know, depending on their size and what their state regulators require, it could be a while before those corrective actions have to be actually implemented. [00:22:25] Speaker 02: And so for people who are moving to petitioner states before those corrective actions would have to take place without the delay, those people would also not count for purposes of standing. [00:22:38] Speaker 02: And really, I mean, one of the problems here is that petitioners have said nothing about this timing issue, let alone present specific facts. [00:22:46] Speaker 02: And so I think, at best, what they have alleged is the kind of Sunday injury that Supreme Court rejected in Luhansk. [00:22:54] Speaker 02: And I think, really, at the end of the day, all that Delaymu does is, as you said, Judge Katz, is it offers petitioners the option of more time. [00:23:01] Speaker 02: They're free to reject it. [00:23:03] Speaker 02: There's really no dispute here for the court to get involved. [00:23:10] Speaker 02: I'm happy to answer any further questions you may have, including on a merit. [00:23:15] Speaker 04: That Rogers. [00:23:16] Speaker 02: No, thank you. [00:23:20] Speaker 04: Thank you. [00:23:20] Speaker 02: Thank you very much. [00:23:31] Speaker 03: Thank you, Your Honors. [00:23:32] Speaker 03: Four quick points on our bottle. [00:23:34] Speaker 03: First, EPA has never answered the state's argument under this court's doctrines that standing is self-evident when a regulated party is affected by regulations. [00:23:45] Speaker 03: They didn't answer in their brief and they did not address it today. [00:23:47] Speaker 03: I realize standing is of course not a waivable issue, but they have offered no argument why that does not apply here. [00:23:54] Speaker 04: What's your response on the theory about out-of-staters getting ill and moving in? [00:24:02] Speaker 04: What's your response to the [00:24:03] Speaker 04: government's forfeiture. [00:24:06] Speaker 03: Your honor, it's a response to their argument that because we have a choice, it doesn't cause us injury. [00:24:12] Speaker 03: But so it's a direct response to them. [00:24:15] Speaker 03: It's not waived because it's you need a theory. [00:24:18] Speaker 04: You need an affirmative theory of standing. [00:24:21] Speaker 04: That's correct. [00:24:22] Speaker 04: Their defenses are not waivable, but your affirmative theories are. [00:24:27] Speaker 04: That's correct, your honor. [00:24:28] Speaker 04: So let's assume [00:24:30] Speaker 04: For the sake of argument, I don't buy your first argument that you're the regulated party, so you're done. [00:24:37] Speaker 04: Yes, you need you need another affirmative theory of standing. [00:24:42] Speaker 04: And the next one you offered up was this one about out of state kids getting sick and moving in. [00:24:48] Speaker 04: And it's either preserved or it's not. [00:24:52] Speaker 04: But if it's not preserved, it's a problem for [00:24:55] Speaker 03: Your honor, I agree that we needed to make it as an affirmative case and I believe we have here our opening brief expressly raises that we will suffer injury proprietary injuries in the form of increased Medicaid costs and increased special education expenditures. [00:25:10] Speaker 03: In response to that argument, EPA waived that you have an option argument that this court squarely rejected in their alliance. [00:25:17] Speaker 03: But even if that had merit, [00:25:18] Speaker 03: Our argument about movement of people is a response to their choice argument, and demonstrates why that would only preclude some, but not all of our arms, leaving the states with some cognizable injury. [00:25:30] Speaker 03: So that movement of people is a direct response to EPA's defense that our proprietary costs don't count. [00:25:37] Speaker 03: And it's a reply to that argument as to why the compliance, sorry, not the proprietary costs that we raised in our opening brief, still whole. [00:25:47] Speaker 03: So that was an argument raised in our opening brief. [00:25:49] Speaker 03: And they do not in fact dispute the fact that we will do, that we will incur these costs. [00:25:55] Speaker 03: They just argue they're not cognizable. [00:25:58] Speaker 03: Our argument to reply was a response to that argument. [00:26:01] Speaker 03: But it's all part of the original proprietary injury argument advanced in our opening brief. [00:26:08] Speaker 04: Uh, Jeff Rogers. [00:26:12] Speaker 04: Okay. [00:26:12] Speaker 04: Okay. [00:26:12] Speaker 04: Thank you. [00:26:13] Speaker 04: Thank you.