[00:00:01] Speaker 05: Face number 21-1018 et al. [00:00:04] Speaker 05: State of California et al. [00:00:05] Speaker 05: Petitioners versus Environmental Protection Agency. [00:00:09] Speaker 05: Mr. McBombs for the petitioners, Ms. [00:00:11] Speaker 05: Coleman for the respondents, Ms. [00:00:13] Speaker 05: Berman for the introverts. [00:00:31] Speaker 01: In 2016 EPA determined that climate change driven by greenhouse gas pollution, including pollution from aircraft, represents an extraordinarily significant [00:00:53] Speaker 01: Nevertheless, in adopting the 2021 aircraft rule, EPA refused to even consider adopting aircraft greenhouse gas emission standards that would reduce these emissions at any amount. [00:01:04] Speaker 01: EPA expressly refused to consider the climate change impacts that show the need for greater than zero emission reduction, stating, we do not address in this rule the potential environmental or other impacts requiring reduced airplane emissions beyond adopting the IKO CO2 standards, IKO being the International Display Aviation [00:01:24] Speaker 01: EPA confines technology review to validating the IKO standards, which it found had no cost, no benefit. [00:01:31] Speaker 01: EPA restricted its analysis to standards that required no improvement from the industry at all. [00:01:37] Speaker 00: So isn't the question before this court, having acknowledged the points you have just made, was the agency's explanation of what it did here [00:01:55] Speaker 00: reasonable and supported by the factual assertions it made. [00:02:02] Speaker 00: And haven't we already decided that question in the National Association, the NACAA case of this court? [00:02:21] Speaker 01: No, Your Honor, and NACA actually supports our statutory arguments. [00:02:27] Speaker 00: That's not the statutory argument. [00:02:30] Speaker 00: I'm trying to decide here. [00:02:34] Speaker 01: Well, as for our arbitrary and courageous argument. [00:02:37] Speaker 00: No, no, no. [00:02:38] Speaker 00: Understand what I'm saying is that the agencies have an obligation to follow the law. [00:02:47] Speaker 00: But the Supreme Court and this court have long recognized that the agency can also offer an explanation as to what it is doing in response to objections that have been raised, much less to what the statute says. [00:03:07] Speaker 00: And the question before the court [00:03:10] Speaker 00: is not whether the agency could do nothing other than confess error and stop ongoing rulemaking proceeding. [00:03:24] Speaker 00: That is not what the Supreme Court has held. [00:03:26] Speaker 00: It's not what our court has held. [00:03:28] Speaker 00: And so don't we have to, even assuming the truth of what you say as to what the statute requires, [00:03:36] Speaker 00: whether or not what the agency did here was nevertheless legally permissible, I'll put it that way, because of the explanations it gave for why it proceeded to promulgate the rule as it was, stating that there were reasons to go forward in its view [00:04:07] Speaker 00: now with the idea that work had to be done so they could catch up later. [00:04:15] Speaker 00: I mean, I'm just trying to focus on what is the issue before this court. [00:04:21] Speaker 01: So even when the agency is explaining its reasons, it still has to consider important aspects of the problem. [00:04:27] Speaker 01: It still has to consider obvious alternatives. [00:04:30] Speaker 00: What I'm saying though, Mr. McCombs is yes, but [00:04:37] Speaker 00: Here, when the agency offers an explanation as to what information it would require in order to do the exact examination you state is required, the agency is acknowledging this later promulgation [00:05:05] Speaker 00: So it's not denying it, it's simply saying, we're not in a position to act on that now. [00:05:12] Speaker 00: And don't we have to decide whether that was a permissible course of action for the agency? [00:05:21] Speaker 01: Yes, and I think there are a few tools that this court would have to decide that question. [00:05:26] Speaker 01: One is, is that explanation of returning capricious under the state farm standard? [00:05:32] Speaker 01: I think the other would be, you know, [00:05:34] Speaker 01: explaining why one didn't consider the statutory factors a substitute for considering the statutory factors. [00:05:41] Speaker 01: I think the answer is no to that. [00:05:43] Speaker 01: Because our view. [00:05:46] Speaker 00: What did the agency have to do here where it acknowledged it didn't have the information it required that the latest reduction was promulgated fairly recently. [00:05:58] Speaker 00: And it needed more time. [00:06:00] Speaker 00: The agency what just had to stop the ongoing rulemaking proceeding. [00:06:07] Speaker 01: No, the agency had plenty of time to conduct the analysis that we urged it to. [00:06:13] Speaker 00: Well, the agency responded that it needed more time, apparently, than you suggested because a couple of months wasn't enough. [00:06:24] Speaker 01: But that doesn't hold up on the record, Your Honor. [00:06:27] Speaker 01: In 2017 was when the IKO adopted its standards. [00:06:31] Speaker 01: The proposal didn't come out until 2020, and in that three-year time period, EPA did conduct a technology review with a very sophisticated model. [00:06:39] Speaker 01: It conducted an alternative analysis, but it chose to restrict those analyses to simply validating the ICS standards instead of looking at what could feasible technology actually produce in terms of emission reductions. [00:06:52] Speaker 00: But the agency said in order to make that type of determination, we need some other information and we either have to stop ongoing proceeding or remain out of compliance for a longer period. [00:07:09] Speaker 00: Remain out of partial full compliance for a longer period. [00:07:21] Speaker 01: Two responses, Judge Rogers. [00:07:23] Speaker 01: The first is that the agency has been developing a record, or it's been collecting information at least, on these technologies and measures for aircraft since 2008. [00:07:32] Speaker 01: So it's been gathering information for 12 years before this rulemaking was initiated. [00:07:38] Speaker 01: Second, the deadline that EPA is citing doesn't hold up on the record either because the soonest any aircraft we know of needs to be certified to these IKO standards is 2028. [00:07:48] Speaker 01: There are no new type aircraft on the horizon [00:07:51] Speaker 01: that need to be certified to the new type standard, only the in-production standard is to present that disruption effect that EPA is worried about. [00:07:59] Speaker 00: And so what do you do about that? [00:08:02] Speaker 01: Well, in the eight years that were between 2020 and 2028, EPA could have studied obvious alternatives like emission-reducing. [00:08:11] Speaker 01: It left the entire range of emission-reducing alternatives from 0% to 100% emission reductions completely unexamined. [00:08:20] Speaker 01: We suggested in the record that a standard that's 10% to 20% more stringent than IKO's top stringency level would be an obvious alternative from the face of the record. [00:08:31] Speaker 01: But EPA left all of that unexamined. [00:08:33] Speaker 00: That's... Just one follow-up quickly. [00:08:38] Speaker 00: What do we do with both the Supreme Court and this court's precedent that gives great deference [00:08:47] Speaker 00: under the statutory language here to the administrator and the agency's determination on these technical matters? [00:09:01] Speaker 01: Two points, Judge Rodgers. [00:09:02] Speaker 01: First, the agency certainly does enjoy a great deal of discretion over these technical matters, but that discretion has to be reasonable, it has to reflect the record, and it has to be exercised in accordance with the Congress's priorities in the statute. [00:09:16] Speaker 01: has to be exercised with the statutory factors. [00:09:19] Speaker 01: EPA did not do that here. [00:09:21] Speaker 00: Well, but you're basically to say to the administrator, we don't believe you when you say you need more time to examine the cost effects. [00:09:34] Speaker 01: Correct. [00:09:35] Speaker 01: The record states otherwise very clearly. [00:09:37] Speaker 01: Moreover, this part has stated on many occasions that even a time crunch or a perceived time pressure doesn't justify an arbitrary rulemaking. [00:09:46] Speaker 01: doesn't justify skipping over the statutes that Congress specified in Section 231. [00:09:51] Speaker 01: That's what EPA did here. [00:09:53] Speaker 07: Maybe in part in relation to Judge Rogers' question, Section 231 is extremely open-ended delegation to the administrator. [00:10:01] Speaker 07: That may pose problems of its own, but this court in the NAACA case has explicitly rejected the idea that Section 231 requires [00:10:14] Speaker 07: a technology forcing approach, which is what the petitioners argue is required here. [00:10:20] Speaker 07: So I guess I'm just not sure how your statutory argument can be squared with what was specifically decided in our earlier case interpreting this very provision. [00:10:31] Speaker 01: Certainly Judge Rao. [00:10:32] Speaker 01: So NACA stands for the proposition which EPA put forward in that case that section 231 requires it to identify a reasonable balance [00:10:40] Speaker 01: specified emission reduction cost safety noise and other factors EPA takes the opposite position here that section 231 requires no particular factors to consider that's not correct on the face of the statute that's contrary to position isn't the rule here read very much like the rule in the NACA case i mean i mean in terms of how it considered those other factors [00:11:04] Speaker 07: It recognizes that there are other factors, but that adopting the ICAO standards serves certain important goals for the EPA and maybe for the government at large. [00:11:17] Speaker 01: There's an important difference between what EPA did in the 2005 nitrogen oxides rule. [00:11:22] Speaker 01: That was an issue in NACA. [00:11:24] Speaker 01: There, it considered the statutory factors alongside this harmonization interest, the importance of IKO standards. [00:11:31] Speaker 01: What EPA has done here, it has effectively supplanted the Section 231 factors with its harmonization interest proceeded solely on that basis. [00:11:40] Speaker 01: That's not allowed. [00:11:41] Speaker 01: NACA stands for the proposition that you can add to the statutory factors with these other important non-statutory interests. [00:11:47] Speaker 07: What are the factors that are in 231? [00:11:48] Speaker 07: I mean, there don't seem to be any factors that are in the statute itself. [00:11:54] Speaker 01: They're certainly not listed out in bullet points. [00:11:59] Speaker 07: Are they listed at all? [00:12:03] Speaker 01: Taking the first fact, the danger of the emissions at issue. [00:12:06] Speaker 01: That appears in A1, A2, and A3, where Congress is saying EPA should understand what are the impacts of these aircraft pollutants, and it should regulate the dangerous ones. [00:12:17] Speaker 01: This court has held that that kind of endangerment trigger is not just procedural activation, it's also a policy [00:12:24] Speaker 01: The feasibility factor appears in A1 and B where it says EPA needs to give enough lead time so that aircraft manufacturers can develop and apply the requisite technology. [00:12:35] Speaker 01: They can't do that analysis without understanding what is the technology that needs to be applied in order to achieve its mission standard. [00:12:43] Speaker 01: The noise and the safety factors, those are under A2, B2. [00:12:46] Speaker 01: The lead time and cost factors are under subsection B. [00:12:50] Speaker 01: So reading the statute as a whole, as we do, those are certainly the priorities that Congress set forward in the statute. [00:12:57] Speaker 01: And EPA has interpreted very similar language in section 202 to do the same thing. [00:13:01] Speaker 01: It says a very similar lead time provision in section 202 obligates us to study technological feasibility. [00:13:08] Speaker 01: Here, EPA did not do that. [00:13:10] Speaker 01: It said we did not develop a record on these technologies. [00:13:13] Speaker 01: We did not gather the data. [00:13:14] Speaker 01: We did not conduct the analysis. [00:13:17] Speaker 01: even though it had been gathering information on these technologies since 2008. [00:13:20] Speaker 02: To that point, is this essentially a placeholder rule in the sense that you're basically adapting to international standards, but there would be statutory factors? [00:13:36] Speaker 01: So assuming that there was some sort of first-in-kind benefit or table-setting benefit to these standards, [00:13:46] Speaker 01: EPA was still obligated to consider whether it could achieve those benefits as well as emission reductions, as it has in every prior first and kind greenhouse gas rule. [00:13:55] Speaker 01: The power sector in vehicles has always been able to inaugurate a greenhouse gas emissions regulation program with very real emission reduction benefits. [00:14:05] Speaker 01: And it could have done so here as well. [00:14:06] Speaker 01: The record shows that even current aircraft in the air are outperforming these standards on the scale of decades, and it didn't even look [00:14:16] Speaker 07: But your main argument requires us to reject the government's interest in harmonization, in a way. [00:14:25] Speaker 01: I disagree, Judge Rao. [00:14:27] Speaker 01: Harmonization can certainly play a role in these standards. [00:14:31] Speaker 01: What it can't do is to plan. [00:14:36] Speaker 01: cited George E. Warren Corp, which is a great example of how to do this, where the EPA was addressing both the statutory objective of cleaning up the air with this reformulated gasoline program. [00:14:48] Speaker 01: It also had to comply with the WTO ruling striking down this rule. [00:14:52] Speaker 01: And so there you had a statutory objective and an important non-statutory interest. [00:14:56] Speaker 01: And EPA was able to design the program so that it achieved both. [00:15:00] Speaker 07: Well, that could be one approach, right? [00:15:04] Speaker 07: Is it an approach that the agency has to take? [00:15:08] Speaker 07: I mean, why is it unreasonable for them to suggest that harmonization is important, you know, for all of its various goals and the role that it played in setting these standards with IKO? [00:15:22] Speaker 01: It certainly can say that harmonization is important, but it still has to ground its approach in the statutory factors or in the priorities that Congress put in Section 231 alongside [00:15:34] Speaker 01: that the harmonization interest, that comes from this court's decision in NRDC versus EPA when it says that EPA has to proceed on rationale's grounded in the text and cannot proceed on rationale's divorce from the statutory text. [00:15:50] Speaker 01: But it also comes from the independent tanker owner case, where Judge Bork pointed out that you can have these non-statutory goals, but you can't pursue them to the exclusion of the objectives in the statute. [00:16:03] Speaker 01: Here, that's what EPA did. [00:16:05] Speaker 01: The objective of the statute is to reduce dangerous pollution. [00:16:09] Speaker 01: EPA literally did not consider doing that. [00:16:12] Speaker 02: But can these be addressed later in upcoming rules? [00:16:16] Speaker 01: No, because the rule has to be judged on the record before the court. [00:16:21] Speaker 01: And it has to stand up on its own right. [00:16:23] Speaker 01: It's too speculative to say, we can get to this later. [00:16:26] Speaker 01: In NACA, that's essentially the argument that EPA was making. [00:16:30] Speaker 01: This court never reached that argument. [00:16:32] Speaker 01: as the petitioners had forfeited their arbitrary and capricious arguments, it turned out that EPA took another seven years to adopt that rule that it was just around the corner from adopting. [00:16:46] Speaker 01: So it really is too remote and speculative to say they'll do a better job next time. [00:16:51] Speaker 01: We have to judge the job they've done this time according to the standards of Congress and the arbitrary and capricious standards. [00:16:57] Speaker 02: And you would say the information was available, but then they would say they didn't have enough time, and so they explained their rationale as to why they didn't look at certain data and other information. [00:17:08] Speaker 01: Yeah, I think the reasonable explanation is not the right tool to look at the records here because they still need to [00:17:16] Speaker 01: consider important aspects of the problem, they still need to consider obvious alternatives. [00:17:20] Speaker 01: Here, no one disputes that the threat of climate change and the means of reducing aviation's contribution to climate change are these central aspects of the regulatory problem. [00:17:30] Speaker 01: And yet, EPA concedes it considered neither. [00:17:32] Speaker 01: Expressly did not consider the environmental impacts, showing the need for greater than zero emission reductions. [00:17:38] Speaker 01: It did not develop a record on the technologies and measures it had been studying since 2008. [00:17:44] Speaker 01: All of that goes to show, instead it just turned away from that evidence and tied itself to the IKO standards. [00:17:50] Speaker 01: And that crosses the line of reasonableness. [00:17:53] Speaker 01: I'll reserve the balance of my time to rebuttal it before it has any more questions. [00:17:56] Speaker 07: OK, thank you. [00:18:27] Speaker 06: Morning, your honors may please the court. [00:18:29] Speaker 06: My name is Chloe Coleman on behalf of the United States Environmental Protection Agency. [00:18:33] Speaker 06: With me at Council's table is Agency Council Rosemary Caban and Intervener Council Amanda Berman. [00:18:39] Speaker 06: This case concerns the first ever EPA regulation to limit greenhouse gases [00:18:44] Speaker 06: from aircraft. [00:18:45] Speaker 06: And as you've heard from petitioners, EPA has inaugurated this control effort by adopting standards that the United States negotiated at the international level that fix into law the industry's pre-existing efforts to reduce aircraft emissions of greenhouse gases. [00:19:01] Speaker 06: And before I get into greater detail, I want to highlight in two broad strokes why we don't think petitioners' claims of unlawfulness and unreasonableness are valid. [00:19:10] Speaker 06: As to lawfulness, we think that question is answered by this court's consideration of Section 231 in the National Association of Clean Air Act Agencies case, also known as NACA. [00:19:20] Speaker 06: There, the court reviewed a nearly identical rulemaking addressing nitrogen oxides and concluded that EPA's adoption of a standard that would not reduce emissions beyond what aircraft were already accomplishing and that instead aligned domestic requirements with international cooperative standards was lawful under the Clean Air Act. [00:19:38] Speaker 06: because the discretion granted EPA to set appropriate standards under Section 231 is both explicit and extraordinarily broad. [00:19:44] Speaker 07: Ms. [00:19:45] Speaker 07: Cullen, can you explain a little bit more about why harmonization was so important to the EPA as opposed to considering ways to exceed the ICAO standards? [00:19:56] Speaker 07: I mean, ICAO requires the United States to meet those standards. [00:20:02] Speaker 07: Why is harmonization [00:20:04] Speaker 07: more important than perhaps trying to exceed those standards? [00:20:08] Speaker 06: Well, Your Honor, I think the first element here is that these are the first ever standards, right? [00:20:13] Speaker 06: We're inaugurating a program and we're dealing with a global industry and we're dealing with a global pollutant. [00:20:18] Speaker 06: And so when EPA is trying to determine sort of where is the right place to start here, [00:20:22] Speaker 06: You know, we're looking in particular at the fact that there's an international regime that's trying to set these standards, and not just for the United States, but for the entire world. [00:20:32] Speaker 06: We have aircraft, obviously, that are crossing borders every day, every hour of every day, frankly. [00:20:36] Speaker 06: And so making sure that domestic and international obligations make sense together is something EPA takes very seriously. [00:20:44] Speaker 07: That goes to why it should be the minimum standard. [00:20:48] Speaker 07: It doesn't go to why EPA shouldn't try to [00:20:52] Speaker 07: you know, to exceed those standards, right? [00:20:55] Speaker 07: Especially when aircraft, you know, according to petitioners in the United States are already exceeding those standards. [00:21:02] Speaker 06: We recognize that, Your Honor, but I think this is, you know, this is a circumstance that has a number of additional layers to it. [00:21:08] Speaker 06: One is that we know that demand growth in the industry is going to be increasingly coming from [00:21:12] Speaker 06: nations outside of the United States. [00:21:14] Speaker 06: So it's especially important here to be thinking about sort of what EPA is doing on the international stage. [00:21:19] Speaker 06: And as to the specific question of why EPA felt like exceeding the standards might actually interrupt that process, you know, ICAO works in these sort of three-year cycles committee on environmental work does. [00:21:31] Speaker 06: And so we have a new cycle that's going on right now. [00:21:34] Speaker 06: and that will be issuing new greenhouse gas standards for 2025. [00:21:38] Speaker 06: And EPA understood when it was adopting these standards that there was a genuine risk in sort of being the primary lead negotiator of these standards on the one hand and then immediately abandoning them on the other. [00:21:49] Speaker 06: And so there was a concern here about EPA's credibility in that international process if we were going to walk away from the very standards that we drove ourselves and negotiated between 2009 and 2017 in quite a lengthy effort. [00:22:04] Speaker 06: So, you know, I think the concern here about exceeding the standards, at least at this point in time where we're really trying to get this around off the ground and where we're trying to make sure that, you know, we're taking account both of what's happening nationally, but also internationally. [00:22:19] Speaker 06: EPA made its judgment call that as a participant in these negotiations. [00:22:23] Speaker 06: are often, as you can see, very lengthy, very challenging. [00:22:27] Speaker 06: But it was important for EPA to be able to stand there with credibility and say, we are pushing these standards. [00:22:31] Speaker 07: So this is sort of a unitary executive, you know, we're trying to harmonize our diplomatic and international efforts with our domestic efforts. [00:22:40] Speaker 06: Yeah, Your Honor, I think that's true. [00:22:41] Speaker 06: And it's, you know, very particular, I think, you know, in this industry, [00:22:45] Speaker 06: where those global effects are being felt by an industry that's competing globally, what we're doing in those negotiations, what IKO is doing is redounding very specifically to what the industry is doing. [00:22:57] Speaker 06: And certainly, Intervener Council can speak to that. [00:22:59] Speaker 06: And as I mentioned, we have a global pollutant here. [00:23:02] Speaker 06: So considering the global picture and what we're managing to achieve on a global stage is especially important. [00:23:10] Speaker 00: I don't understand your response, though, in one sense. [00:23:13] Speaker 00: I don't think petitioner's council is really disputing that. [00:23:23] Speaker 00: At least that's my understanding. [00:23:25] Speaker 00: I mean, this is a global issue. [00:23:27] Speaker 00: There are lots of complicated considerations, but the reasons that EPA gave for not addressing certain of the statutory factors [00:23:39] Speaker 00: Don't withstand scrutiny here because this is not something that EPA just started to study. [00:23:48] Speaker 00: It's been studying this for years, it's got a lot of data. [00:23:54] Speaker 00: How can the agency just say, well, you know, we're gonna postpone this further for harmonization. [00:24:03] Speaker 00: Harmonization has always been there. [00:24:06] Speaker 00: I don't understand petitioners to question that at all, but rather that at least under the statute that gives the administrators this very, very broad discretion, there are certain limits [00:24:23] Speaker 00: And the administrator couldn't say, for example, you know, I've been working hard for five days, so I'm not going to work on this anymore for another five days. [00:24:37] Speaker 00: Rather, it has to look at the statutory factors and tell us why, as to those particular factors, [00:24:47] Speaker 00: Its judgment is it cannot go forward now on addressing this most recent reduction in the global standard. [00:25:01] Speaker 06: Well, Your Honor, I would like to make the point first that we don't agree with petitioners' primary arguments as to lawfulness here, that there are specific factors that EPA has to weigh in a particular way. [00:25:12] Speaker 06: And so when we're talking about, you know, what was really the standard by which EPA should be judged here, we think it's reasonableness. [00:25:18] Speaker 06: We don't think it's lawfulness. [00:25:19] Speaker 06: And we think that NACA decides that. [00:25:22] Speaker 06: With respect to the reasonableness of EPA's consideration here, as you mentioned, timing is a major concern. [00:25:28] Speaker 06: You know, these standards came out in 2017 from IKO, and there are real consequences to the United States if we don't get a compliant role in place. [00:25:38] Speaker 06: U.S. [00:25:39] Speaker 06: aircraft can be banned from international airspace if we fall out of step with IKO. [00:25:43] Speaker 06: So the timing consideration here is quite significant in terms of what sort of the downside risk [00:25:49] Speaker 00: Council, what I'm trying to get you to focus on, and I understand why you may not want to, but I need to be clear that you understand my question, is you've been working, or not you, but the agency has been working to respond to these initial standards and the international standards keep getting stricter. [00:26:12] Speaker 00: And so EPA says, well, we can handle [00:26:17] Speaker 00: based on our current research and examination, the international standards up to this last increase. [00:26:27] Speaker 00: As to the last increase, the agency says, because this is so complicated, et cetera, for all the reasons you say, we need some more time. [00:26:37] Speaker 00: And the environmental petitioners are saying, maybe you do need more time, but in order to [00:26:45] Speaker 00: justify that you have to look at the statutory factors and tell us why the data you have simply isn't sufficient. [00:26:56] Speaker 00: And I was posing to counsel, well, why haven't they done that sufficiently? [00:27:03] Speaker 00: And you're saying they don't need to do it. [00:27:06] Speaker 00: And I just, that's like two ships passing in the night. [00:27:09] Speaker 00: And I just want to see how you respond to environmental and intervener's argument. [00:27:17] Speaker 06: Yes, your honor. [00:27:17] Speaker 06: I think one important clarification here is there hasn't been an updated standard that EPA hasn't adopted. [00:27:22] Speaker 06: That was the case in NACA, but it's not the case here. [00:27:25] Speaker 06: At this point in time, there's only one international standard that IKO has put out for greenhouse gases, and that's the 2000. [00:27:31] Speaker 06: 17 standards. [00:27:32] Speaker 06: So there isn't sort of a secondary record at the international level that we haven't considered. [00:27:37] Speaker 06: What environmental council is trying to get us to do is expand our scope of examination into the wide world of infinite other options here that aren't included in the ICAO standard and that haven't yet been adopted in another ICAO standard, although as our brief mentions, we do think an updated standard is coming. [00:27:56] Speaker 06: And with respect to those, [00:27:58] Speaker 06: you know, record, you know, whether the record could support EPA's examination on this timeframe of those considerations, we think it's very clear from the record that we could not do so in time for this rule. [00:28:10] Speaker 06: There are, you know, a host of other technologies that are available, but they're not necessarily available for all regulated aircraft. [00:28:18] Speaker 06: And the EPA is trying to set a rule here that applies to the industry at large. [00:28:22] Speaker 06: And so the question of whether EPA had adequate data [00:28:26] Speaker 06: to actually go ahead and make cost and feasibility determinations with respect to this much broader scope of technologies, we think it's very clear the agency didn't have that time to do that here. [00:28:37] Speaker 06: And I would note that some of those technologies, some of the things in petitioners' briefs, raise really complicated questions. [00:28:44] Speaker 06: EPA is an unusual position in this part of the Clean Air Act because it has the authority to set the standard, but it doesn't have the authority to enforce the standard. [00:28:53] Speaker 06: And so all of the enforcement that happens, even of this 231 standard, happens through FAA and its certification processes and its other regulations. [00:29:02] Speaker 06: And so when you're talking about something like operational standards, petitioner's brief mentions the idea that EPA could reduce emissions by eliminating layovers, which I'm sure we'd all appreciate, or, you know, changing how taxiing and takeoff are done. [00:29:16] Speaker 06: These are things that fall outside of what EPA can actually enforce. [00:29:20] Speaker 06: Those are things FAA would have to go do. [00:29:22] Speaker 07: Ms. [00:29:22] Speaker 07: Cullen, let me ask you, has EPA ever deviated from ICAO standards for other pollutants, or does EPA always meet ICAO standards? [00:29:35] Speaker 07: Does it ever go above or below the ICAO standards? [00:29:38] Speaker 06: There have been instances since the sort of start of IKO standard setting in the 1980s, but for the past 25 years, EPA has been very consistent in adopting IKO standards and in putting those at the fore. [00:29:51] Speaker 07: So then what about petitioners' argument that this is a kind of impermissible delegation to a UN agency of standards, right? [00:30:00] Speaker 07: So if EPA is just simply following IKO standards, is that a problem? [00:30:05] Speaker 07: Or why isn't it a problem? [00:30:06] Speaker 07: I assume you don't think it's a problem. [00:30:08] Speaker 06: No, Your Honor, we don't. [00:30:09] Speaker 06: And, you know, EPA performed its own analysis here. [00:30:11] Speaker 06: There's a technical support document. [00:30:13] Speaker 06: There were alternatives considered. [00:30:15] Speaker 06: You know EPA is going through its own process to make sure that it ground troops everything that's happening at the international level. [00:30:22] Speaker 06: I think it's also important to recognize that EPA is the primary driver of the technological and sort of negotiation side of IKO. [00:30:29] Speaker 06: So it's not as if it's sort of a, you know, a shadowy room full of people and the United States doesn't have a role in that. [00:30:35] Speaker 06: You know, we're really the primary [00:30:37] Speaker 06: You know participant in that so we're doing it at both levels internationally and domestically But there is a separate analysis in this record with respect to the cost with respect to the feasibility And I think that's an important moment to correct the record as to one thing that petitioners said with respect to NACA Which is that the rule they're considered factors alongside harmonization consider things like emission reduction [00:30:59] Speaker 06: And if you actually look at the rule under consideration there, and this is mentioned also in the court's NACA opinion at 1225, the court understood that there was no alternative analysis performed there. [00:31:10] Speaker 06: EPA did not even consider whether it should set a more stringent standard. [00:31:13] Speaker 06: It did not consider whether getting additional reductions there would have been valuable. [00:31:18] Speaker 06: And the court still did not find that a problem. [00:31:21] Speaker 06: Here we actually have an alternatives analysis. [00:31:23] Speaker 06: EPA did more than it did [00:31:25] Speaker 06: in the NACA rulemaking to look at what those reductions would be from these different alternatives and then supported while this was the reasonable alternative. [00:31:34] Speaker 06: I see that my time has run. [00:31:36] Speaker 06: So in conclusion, Your Honors, we would just mention that we dispute petitioner's assertion that this rule does nothing to advance the aims of the Clean Air Act. [00:31:44] Speaker 06: or to ensure the aircraft industry is addressing its contributions to climate change. [00:31:48] Speaker 06: These standards have had the support of three presidential administrations from different political parties. [00:31:54] Speaker 06: And with these standards, EPA has laid a foundation here that regulates this pollution for the first time, that makes it legally enforceable the significant steps the industry has taken to make planes cleaner. [00:32:04] Speaker 06: And that positions EPA to continue to fight for international action reducing aircraft emissions, not just in the United States, but around the world. [00:32:12] Speaker 06: As EK's inaugural rule in its program to control greenhouse gas emissions from aircraft, we think those judgments were lawful and reasonable, and so the aircraft rules should be upheld. [00:32:22] Speaker 07: Thank you. [00:32:42] Speaker 04: Good morning, your honors. [00:32:43] Speaker 08: Amanda Berman for Intervenors Boeing and the Aerospace Industries Association of America. [00:32:50] Speaker 08: EPA reasonably chose to align the first ever domestic aircraft engine greenhouse gas emission standards with the international standards to which the US made aircraft must be certified. [00:33:03] Speaker 08: And I'd like to focus on three points that are key from Intervenors perspective. [00:33:08] Speaker 08: The first is the unique need for international harmony in this particular industry. [00:33:12] Speaker 08: And to be honest, I'm not going to say much about that because I think that was very robustly covered by the EPA Council. [00:33:18] Speaker 08: We've talked a lot about harmony. [00:33:20] Speaker 08: The second point is the competitive arm that would result if US standards were in fact more stringent than the international standard. [00:33:29] Speaker 08: And the third is why it would be very problematic to even require EPA to consider technology forcing standards or standards based on changes in aircraft design or operations. [00:33:42] Speaker 08: So starting with that second point, because international harmony has been so robustly covered, ETA very reasonably considered the unique history of this particular industry and the market forces that govern it, and the competitive arm that would result from more stringent standards as compared to what applies to our international competitors. [00:34:02] Speaker 08: No other industry has such a strong economic incentive to reduce emissions, and no other industry has a similar history of doing so. [00:34:12] Speaker 08: every new generation of aircraft has been more efficient than the last. [00:34:16] Speaker 08: EPA noted in both the response to comments and the TSD, and you can see this, a joint appendix page is 51 and 119, that the cumulative fuel efficiency improvement of the in-service fleet was almost 40% between 2000 and 2019 alone. [00:34:33] Speaker 08: And that was the baseline from which EPA was acting here, a baseline not of static emissions or increasing emissions [00:34:41] Speaker 08: but a baseline of continual improvement. [00:34:44] Speaker 08: And locking that very significant progress in place is not the nothing that petitioners are trying to make the doubts be. [00:34:52] Speaker 07: So are your arguments all going to the idea that EPA's decision here was reasonable? [00:34:58] Speaker 07: Yes, absolutely, Your Honors. [00:34:59] Speaker 08: And I can address the statutory arguments as well, although I do think they are addressed by the court's decision in that. [00:35:05] Speaker 08: So I was going to focus on the arbitrary and capricious. [00:35:08] Speaker 08: And my point is that EPA didn't just consider international harmonization. [00:35:13] Speaker 08: It also noted the competitive arm that would result if there were a more stringent domestic standard. [00:35:19] Speaker 08: And I would, you know, I can point the court to Joint Appendix pages three and 22 on that. [00:35:24] Speaker 08: Boeing and other U.S. [00:35:25] Speaker 08: manufacturers, we are competing one-on-one with aircraft made in Europe and in China. [00:35:31] Speaker 08: If the standards were the increasing stringency, the 10% that the district mentioned here today, [00:35:38] Speaker 08: The next Boeing plane on the chopping block would be the 737-9 Max. [00:35:42] Speaker 08: And that competes against the Chinese aircraft, the Comus C919, which is less fuel efficient. [00:35:50] Speaker 08: Now, under the Chicago Convention, the US can't impose a more stringent domestic standard against aircraft made of law abroad, even if they're flying in US airspace. [00:36:02] Speaker 08: So buyers would have this incentive [00:36:05] Speaker 08: to avoid the extra cost associated with more efficient U.S. [00:36:08] Speaker 08: aircraft by buying a cheaper foreign-made product that already is less fuel efficient. [00:36:14] Speaker 08: So not only are we talking about U.S. [00:36:16] Speaker 08: manufacturers losing business, but we're talking about lost sales that could in fact equate to an overall increase in greenhouse gas emissions. [00:36:26] Speaker 08: And I also want to note, Your Honors, that as we explained to EPA when it was promulgating the rule, this rule actually does have a very real impact on Boeing. [00:36:34] Speaker 08: It's going to put two of our planes out of production, the 767 Raider and the 777, earlier than they otherwise would have left production by 2028, even though right now sales of these are, these are popular aircraft and sales are ongoing. [00:36:50] Speaker 08: So it does in fact have a very, [00:36:53] Speaker 07: What about its determination that there were no costs and no benefits to the rule? [00:36:58] Speaker 08: Sure, Your Honor. [00:36:58] Speaker 08: I think it's important to keep in mind that, again, EPA's baseline in saying that there were going to be no benefits was this assumption of continual improvement at the same rate that we've seen historically. [00:37:10] Speaker 08: So that's what EPA was measuring against. [00:37:13] Speaker 08: And we did explain to EPA that there are going to be costs to us. [00:37:17] Speaker 08: EPA, in responding, said that it didn't have enough data to verify those. [00:37:22] Speaker 08: Possibility of getting an FAA exemption, which is a process that is still pretty far away here So we do disagree with EPA on that point that there's absolutely no cost because there are costs at least to Boeing Your honors I also want to point out that it would be very problematic to even require you to consider Technology forcing standards or standards that are based on changes to design and operation [00:37:48] Speaker 08: First off, as we pointed out in our brief, there's an obvious safety issue with technology forcing standards or some of these alternatives that they're throwing out. [00:37:57] Speaker 08: For example, using only one engine as you're taxing to take off, if that one engine fails as you're then taking off, there's a real potentially catastrophic problem there. [00:38:07] Speaker 08: So EPA recognized, and you can see this at Joint Appendix H22, that safety is uniquely the foundation of this particular Clean Air Act regulatory program. [00:38:18] Speaker 08: And it mentioned that. [00:38:19] Speaker 08: It said that in response to petitioners' comments that the rules should be technology forcing. [00:38:24] Speaker 08: So it's not that EPA ignored the safety factor, as they have asserted in their brief. [00:38:29] Speaker 08: And I think I heard that again today. [00:38:32] Speaker 08: The other reason this is really problematic is that the broad approach that petitioners are advocating encroaches on the FAA authority. [00:38:41] Speaker 08: The FAA, not EPA, that has primary authority over and expertise in design, operation, and safety of aircraft. [00:38:50] Speaker 08: That's why it's the FAA that implements any EPA standards through a certification process, and that's why it's the FAA that had the lead in the IKO process with EPA serving as an advisor. [00:39:03] Speaker 08: EPA, in contrast, in section 231 has a much more limited authority to regulate emissions from aircraft engines. [00:39:11] Speaker 08: We would thus admit that EPA frankly should not be considering or imposing technology forcing standards that would require design or operational changes. [00:39:21] Speaker 08: That would be a very radical shift in the balance that Congress struck between these two agencies. [00:39:28] Speaker 08: And EPA recognized that at Joint Appendix page 23 where it noted that this would be unprecedented for it to impose design or operational changes as the basis for its standards. [00:39:40] Speaker 08: So we submit that. [00:39:41] Speaker 07: So in part, your argument is not that it's just harmonization with international standards, but also with the FAA's domestic responsibilities. [00:39:49] Speaker 08: Yes, Your Honor. [00:39:50] Speaker 08: I want to point out that EPA didn't just talk about harmony. [00:39:53] Speaker 08: It talked about these competitive harms at JA 3 and 22. [00:39:56] Speaker 08: It talked about the fact that it would be encroaching on the FAA's authority at JA 23. [00:40:04] Speaker 08: So it's just a bit of a fallacy, this idea that the only thing EPA was considering was international harmony. [00:40:10] Speaker 08: And international harmony, to be clear, is very important here. [00:40:13] Speaker 08: And we would echo that. [00:40:14] Speaker 08: Boeing and other manufacturers need to be able to certify their planes to the international standard. [00:40:20] Speaker 08: So I see that my time is expired. [00:40:22] Speaker 08: If there aren't any other questions, I'll conclude. [00:40:24] Speaker 08: There's questions. [00:40:26] Speaker 07: Judge Rogers, any questions? [00:40:29] Speaker 08: Thank you. [00:40:30] Speaker 08: So in conclusion, we would ask that the court deny the petition because EPA's choice to set an ICAO equivalent standard [00:40:38] Speaker 08: locks in the significant progress that this industry has already made in decreasing greenhouse gas emissions and is a fundamentally reasonable choice. [00:40:48] Speaker 07: Thank you. [00:41:08] Speaker 01: You asked if. [00:41:10] Speaker 01: EPA never adopted divergent standards. [00:41:12] Speaker 01: They had for the first 16 years of IKO's emission standards program from 1981 to 1997, EPA declined to adopt IKO standards based on the statutory factors in section 231. [00:41:24] Speaker 07: And were the standards that EPA adopted higher than IKO standards? [00:41:28] Speaker 01: They were non-existent. [00:41:30] Speaker 01: They basically said we don't need to adopt these NOx standards that IKO adopted because NOx is a problem at airports and the technology is too immature to control it cost effectively. [00:41:39] Speaker 01: So on that basis, they just declined to have a NOx standard for aircraft for that entire 16-year period. [00:41:47] Speaker 01: In 2001, they also adopted a noise standard that was more stringent than IKO standard. [00:41:53] Speaker 01: Noise is grouped with actual molecule pollutants as a pollutant under aircraft regulations. [00:42:02] Speaker 01: The EPA mentions the time pressure and the technologies, the amount of data they would need to gather on technology's applicability to aircraft across different models. [00:42:11] Speaker 01: They had that. [00:42:12] Speaker 01: The ICF model that is described in J831-33 lists emission reductions associated with every known fuel efficiency technology studied by ICF. [00:42:23] Speaker 01: And it could run that model to see what could those together produce as far as emission reduction. [00:42:29] Speaker 01: They only used that model to determine that IKO standards had no cost and no benefit. [00:42:34] Speaker 01: That's all they used this model for. [00:42:36] Speaker 01: In the three years, they had to work with it. [00:42:40] Speaker 01: The question about international credibility has been answered in Massachusetts versus EPA where the Supreme Court said, you know, we're not questioning the executive's prerogative over foreign affairs, but EPA still has to do the job that Congress assigned. [00:42:55] Speaker 01: is for EPA to base its standards on the Section 231 factors and on the record. [00:43:00] Speaker 07: What about its argument that here they also have to work with FAA? [00:43:04] Speaker 07: That, you know, FAA has its own standards. [00:43:06] Speaker 07: It arguably has primary responsibility for many of these issues. [00:43:10] Speaker 07: And so, therefore, it's not just about international harmonization, but it's also about kind of making things consistent across executive branch agencies domestically. [00:43:21] Speaker 01: So FAA's duty here under Section 233 is to implement and ensure compliance with the emission standards that EPA promulgates. [00:43:29] Speaker 01: So certainly EPA is not mandating certain technologies. [00:43:33] Speaker 01: It will have certain technologies or measures in mind. [00:43:36] Speaker 01: So for in the fuel venting standards adopted in 1973, it had operational measures in mind when it created this emission standard and it left it to FAA to regulate it. [00:43:47] Speaker 01: I see my time is about to expire. [00:43:50] Speaker 01: A few more points to make, and I'll briefly conclude. [00:43:54] Speaker 01: NAGA did consider the statutory factors. [00:43:56] Speaker 01: They did consider alternatives. [00:43:58] Speaker 01: It wasn't a more stringent NOC standard, because the record did not show that there was an obvious alternative to study. [00:44:06] Speaker 01: But they did consider in-production standards. [00:44:08] Speaker 01: And they rejected that alternative under the statutory Section 231 factors. [00:44:13] Speaker 01: That's at 70 FR 699, 678, 81. [00:44:18] Speaker 01: In conclusion, I would just ask that the aircraft will be remanded and reconsideration consistent with Section 231. [00:44:25] Speaker 01: Thank you. [00:44:27] Speaker 07: Case is submitted.