[00:00:00] Speaker 00: Case number 22-5305, S. Stanley Young, doctor, and Louis Anthony Cox Jr., doctor, at balance, versus Environmental Protection Agency at L. Mr. Shoemade for the balance, Mr. Buza for the evidence. [00:00:16] Speaker 05: Mr. Shoemade, welcome. [00:00:23] Speaker 02: Good morning, Your Honors. [00:00:24] Speaker 02: May it please the court. [00:00:25] Speaker 02: Brett Shoemade on behalf of Drs. [00:00:27] Speaker 02: Young [00:00:29] Speaker 02: This case involves an extreme example of an agency violating the fair balance requirement in the Federal Advisory Committee Act. [00:00:37] Speaker 02: Two years ago, the beginning of the current administration, EPA fired all seven members of an advisory committee that had previously recommended against strengthening the national air quality standards. [00:00:50] Speaker 02: A few months later, EPA then selected new committee members, but they all share the same view. [00:00:56] Speaker 02: The air quality standards should be strengthened [00:00:59] Speaker 02: And earlier this year, EPA proposed a new rule, strengthening the air quality standards on the basis of the new committee's unanimous recommendation to do exactly that. [00:01:09] Speaker 02: This case is the flip side, positions for social responsibility versus Wheeler, which the court decided three years ago. [00:01:16] Speaker 02: In that case, EPA tried to exclude grant holders from serving on the committee. [00:01:21] Speaker 02: In this case, EPA stacked the committee with grant holders while excluding anyone who might share the industry's perspective [00:01:28] Speaker 02: that the air quality standards are adequate and should not be strengthened. [00:01:32] Speaker 02: If EPA complied with the fair balance requirement in this case, then nothing would stop the next administration from doing the inverse of what EPA did here by firing the entire committee and establishing a new committee, stacking it with scientists paid by oil and gas companies, all of whom agree that the air quality standards should be relaxed, not strengthened. [00:01:55] Speaker 02: Before I get into our fair balance claim, I'd like to actually start with our EPA claim, because everything that the government says in this case about fair balance is post-op rational. [00:02:04] Speaker 03: Could I just ask you to start briefly with a question about standing? [00:02:08] Speaker 03: And I know the government hasn't directly addressed your reliance on these equal protection cases, but we'll hear from them. [00:02:15] Speaker 03: But one potential distinction [00:02:17] Speaker 03: it seems to me, is that in those cases, it's very clear that the law provides an individual right to be considered free from discrimination, whether that's from the Constitution or a statute. [00:02:30] Speaker 03: And at least it's not immediately clear that FACA confers the same type of individual rights to be barely considered. [00:02:38] Speaker 03: And I'm just wondering how you'd encourage us to think about that potential distinction. [00:02:42] Speaker 02: My first response is the 10th Circuit has already addressed this question. [00:02:46] Speaker 02: Obviously, the court's not bound by that, but if you agree with the government, there would be a direct conflict between this court and the 10th Circuit, the Colorado Environmental Coalition. [00:02:54] Speaker 02: But I think the theory of standing has been well established in Bakke and in this circuit in the Shea case that whenever there's a denial of a fair opportunity because the government acts illegally, it doesn't matter what the illegality is, there's an Article III injury that a court can address. [00:03:11] Speaker 02: And so the theory of injury here is that [00:03:14] Speaker 02: Our plaintiffs were denied a fair opportunity to compete for a seat on the committee because EPA violated the fair balance requirement, and they decided to give a preference to individuals who support stronger air quality standards. [00:03:29] Speaker 02: If you set aside and require EPA to redo the selection and include someone who has an opposing viewpoint, it would create additional seats on the committee for one of our. [00:03:38] Speaker 03: Basically, if they follow the law, your clients would have a better chance at getting on the committee, and that should be enough. [00:03:45] Speaker 02: Correct, that should be enough. [00:03:47] Speaker 02: There is no personal right to a seat on the committee, I acknowledge that, but that's not our argument, it's not, a university applicant doesn't have a personal right to admission at the university, but they still have standing to challenge an affirmative action program. [00:03:59] Speaker 03: Thank you, I understand the argument, so please proceed as you were about to. [00:04:04] Speaker 01: The individuals, both of these plaintiffs were competing, they were among the 100 candidates [00:04:13] Speaker 02: That's correct, Your Honor. [00:04:14] Speaker 02: They were one of the 100 that were nominated for a seat on the committee. [00:04:18] Speaker 01: Our theory of standing is that they did not have a fair opportunity to compete because the government gave a preference to individuals who supported... The decision document put together by the staff and recommending who the EPA administrator should select said nothing about viewpoint. [00:04:40] Speaker 02: That's correct, Your Honor. [00:04:41] Speaker 01: They... How do you know [00:04:43] Speaker 01: that your clients were not given a fair opportunity because of their viewpoint. [00:04:50] Speaker 01: And in fact, the small bios for the 100 people don't mention their viewpoint. [00:04:57] Speaker 02: Your Honor, for purposes of standing, you have to assume that we're correct on the merits, that we've alleged a violation of the fair balance requirement. [00:05:05] Speaker 02: And assuming the truth of that allegation, then the government did violate the law. [00:05:10] Speaker 02: and violated the fair balance requirement and had a preference for individuals who supported stronger air quality standards. [00:05:17] Speaker 02: So on our allegation under the merits, which we have to assume to be true, they were denied a fair opportunity because the government violated the fair balance. [00:05:26] Speaker 01: I don't know how you could possibly prove that in light of the Supreme Court decisions in the Morgan cases. [00:05:32] Speaker 01: Are you familiar with them? [00:05:35] Speaker 02: I don't think I am, Your Honor. [00:05:36] Speaker 01: OK. [00:05:37] Speaker 01: There's four of them, and the ones that [00:05:41] Speaker 01: bear on this question of Morgan 2 and Morgan 4. [00:05:45] Speaker 01: And the Supreme Court held that you cannot, as a private litigant, explore the mental processes of the decision maker in an agency. [00:05:57] Speaker 01: So I don't know how you go about proving that the selection was such that it depended upon the viewpoint. [00:06:07] Speaker 01: You'd have to look at the mental processes of the [00:06:11] Speaker 01: EPA administrator, which you can't do. [00:06:15] Speaker 02: Your Honor, I do know those Morgan cases, and I think those are, you know, EPA review cases where, fair point, when you're reviewing the agency's decision on the merits, you don't evaluate the subjective intentions of the decision-maker. [00:06:30] Speaker 02: But here, for purposes of our EPA claim, we're not saying you need to. [00:06:35] Speaker 02: evaluate their subjective mental processes or anything like that, just review the agency's explanation. [00:06:41] Speaker 02: It is inadequate under the APA because the administrator did not provide a reasoned explanation of why he believes this committee is fairly balanced in terms of viewpoint. [00:06:51] Speaker 02: If you look at the staff decision memos, all they did was check the fair balance box. [00:06:56] Speaker 02: They never explained themselves. [00:06:57] Speaker 02: So we're not arguing here that you need to look into anything in the administrator's mind, because he did provide an explanation. [00:07:06] Speaker 02: It's at page 21 of the joint appendix, where he announced these individuals are going to serve on the committee. [00:07:12] Speaker 02: They have these qualifications. [00:07:14] Speaker 02: But he never addresses the one factor that Congress directed him to consider, which is fair balance. [00:07:21] Speaker 02: Neither did the staff. [00:07:22] Speaker 02: In fact, what's I think essential here is that, yes, in the decision memo, the underlying decision memos, the staff never even explained to the administrator why they believe the candidates that they recommended would establish a fairly balanced committee. [00:07:38] Speaker 02: Again, that's the one factor that Congress [00:07:41] Speaker 02: deemed relevant to establishing a new committee, it's fair balance. [00:07:44] Speaker 02: And the staff didn't even consider the GSA regulations or EPA's handbook, which provide factors and guidelines to consider when establishing a fairly balanced committee. [00:07:56] Speaker 02: So you don't need to look into the mental processes for purposes of our APA claim. [00:08:00] Speaker 02: You only need to look at the explanation in the record, which is woefully inadequate. [00:08:05] Speaker 01: What if they're fairly balanced with respect to [00:08:10] Speaker 01: CO2 emissions, but not fairly balanced with respect to articulate control. [00:08:18] Speaker 01: This committee is the Clean Air Committee, which is responsible for all the pollutants across the board. [00:08:28] Speaker 02: That's right, your honor. [00:08:29] Speaker 02: I think that would be a harder case for me, but I think here the facts are so extreme where we know the agency fired the previous committee, which in 2019 had recommended, again, strengthening the air quality standards for a particular matter, in part because the president on day one directed EPA to reconsider that particular rule that was promulgated in 2020. [00:08:51] Speaker 02: And so the firing happened in March of 2021. [00:08:55] Speaker 02: And then in June of 2021, EPA established the new committee. [00:09:00] Speaker 02: It's mostly made up of grant holders who EPA would have known what their research is on air quality issues, particulate matter. [00:09:08] Speaker 01: I think it would be a harder case for me if the administration- There is a particulate matter committee, too. [00:09:14] Speaker 01: Actually, there are two of them, right? [00:09:16] Speaker 02: There is a particular matter subcommittee that is formed out of this advisory committee, but there's not a separate. [00:09:22] Speaker 01: The chairman of them has to be a member of the air quality or the clean air committee. [00:09:30] Speaker 01: But what about the membership of the particular matter committee? [00:09:34] Speaker 02: That is not considered an advisory committee. [00:09:37] Speaker 02: So it's something that the chair of the committee can establish. [00:09:43] Speaker 02: I believe all members of the seven members serve on the subcommittee, but they can expand it. [00:09:48] Speaker 02: So I think there were a dozen or more individuals who served on the particulate matter review committee. [00:09:54] Speaker 02: Our plaintiffs were not selected as even. [00:09:57] Speaker 01: This committee is by statute. [00:10:00] Speaker 02: Correct. [00:10:01] Speaker 02: The Clean Air Act requires EPA to establish this committee. [00:10:04] Speaker 02: I think what's essential about this committee and distinguishes it from many other advisory committees is that this committee has an essential role in the policymaking and rulemaking process because Congress charged this committee with recommending to the administrator changes to the air quality standards. [00:10:22] Speaker 02: That's in section 7409D2B of the Clean Air Act. [00:10:26] Speaker 03: Can I ask a question about your evidence and what your theory is on fair balance? [00:10:30] Speaker 03: So it seems to me that what you focused on is, as some of the questions have suggested, is views on the particulate matter standard. [00:10:39] Speaker 03: Not every standard the agency is going to apply. [00:10:42] Speaker 03: And it would seem a little bit odd to me if what we were telling EPA to do when they're filling a seven-member committee [00:10:52] Speaker 03: is basically to go through every issue this committee's gonna work on and make sure you have somebody who currently has a different view on that issue. [00:11:02] Speaker 03: I don't really see how that's administrable. [00:11:05] Speaker 03: So is that, am I misunderstanding the rule you'd have us adopt here? [00:11:11] Speaker 02: Well, a couple responses. [00:11:13] Speaker 02: I don't think you are. [00:11:14] Speaker 02: I think the first response is it's incumbent on the administrator to explain himself. [00:11:18] Speaker 02: So that's our APA claim that the administrator didn't explain [00:11:22] Speaker 02: why he believes this committee would be fairly balanced. [00:11:25] Speaker 02: In terms of our fair balance claim, I think the way to assess fair balance starts with the GSA regulations, which say, you look at the committee's mandate, and you look at, does the committee have urgent points of view on the issues before the committee? [00:11:39] Speaker 02: And so this committee's mandate is to look at the air quality standards writ large, and advise the administrator on whether they're adequate or not, so a policy judgment. [00:11:52] Speaker 03: The proxy you want us to use for is there an array of viewpoints on the matters to be studied is for the agency to go out and find out what each individual person thinks. [00:12:03] Speaker 03: And maybe I'll sharpen this up a little bit because throughout your briefs you say you needed somebody on the committee who had the viewpoint that stronger regulations on particular matter were unnecessary. [00:12:18] Speaker 03: But they had that. [00:12:18] Speaker 03: They appointed Dr. Boylan, who said in December 2019 that he did not support strengthening those particular standards. [00:12:26] Speaker 03: And as I understand it, you come back and say, well, you didn't know how committed he was to that. [00:12:31] Speaker 03: And again, just goes back to the fundamental point. [00:12:33] Speaker 03: We did this analysis the way you're asking the agency to do it. [00:12:38] Speaker 03: Not only do they have to figure out in advance what everyone's going to think, you got to make sure they're not going to change their mind. [00:12:44] Speaker 03: That was sort of my takeaway from your reply brief on this point. [00:12:48] Speaker 02: With respect to Dr. Boyle, and I don't think you can count him as the person who would represent the industry's point of view that air quality standards are adequate for at least two reasons. [00:12:58] Speaker 02: Number one, he's a state regulator. [00:13:00] Speaker 02: He represents the viewpoint of regulators, which would be the public at large, consumers. [00:13:06] Speaker 02: And he supported stronger air quality standards in this round of review. [00:13:10] Speaker 02: So he was part of the unanimous recommendation. [00:13:12] Speaker 02: And in 2019, [00:13:14] Speaker 02: He just found flaws in the underlying risk assessment. [00:13:17] Speaker 02: He didn't come out and say, look, I would never support stronger air quality. [00:13:22] Speaker 03: Yeah, that's what I want to understand. [00:13:24] Speaker 03: You're saying the problem is that you said, based on the current evidence, I don't support strengthening the air pollution standard, but I have an open mind. [00:13:35] Speaker 03: And instead, EPA had to find somebody without an open mind. [00:13:38] Speaker 03: Or is there another way to thread that needle? [00:13:40] Speaker 02: EPA knew that they were posing viewpoints on this particular issue. [00:13:44] Speaker 02: And the reason why I'm focusing on a particular matter is because that was the issue that was teed up for the EPA. [00:13:51] Speaker 02: Initially, it's the most apparent why there's a violation of the fair balance requirement. [00:13:58] Speaker 02: EPA knew exactly what it was doing in this round because it wanted a new recommendation from [00:14:04] Speaker 02: the committee that would support reconsidering the rule that had been adopted at the end of the prior administration. [00:14:08] Speaker 02: It knew there was an opposing viewpoint, at least with respect to particular matter. [00:14:13] Speaker 02: We don't know if there were different views on the other air quality standards. [00:14:17] Speaker 02: And EPA likely knew, because it was funding the research of the academics that it appointed to the committee, that if it would appoint those individuals, it would get a different outcome. [00:14:27] Speaker 02: Yes, the administrator reappointed Dr. Boylan, but the statute requires a state official. [00:14:33] Speaker 02: He's the state official, he's a state regulator, and ultimately he supported strengthening the air quality standards. [00:14:39] Speaker 02: So if you look at full record, there was no opposing viewpoint on this particular issue. [00:14:48] Speaker 03: Just one last question on the on the fair balance point. [00:14:51] Speaker 03: It does seem to me that [00:14:55] Speaker 03: a much more reasonable way to get industry viewpoint on a committee would be to have an industry representative. [00:15:01] Speaker 03: Then you wouldn't have to hold the audience on what they think about every single issue, which strikes me as a bit odd when you've got a scientific committee that's, their job is to study the issue and arrive at an opinion, right? [00:15:12] Speaker 03: And it seems you've conceded for very good reasons, this statute, when you read it in conjunction with 7409, doesn't require an industry representative. [00:15:22] Speaker 03: So I think my question is essentially, [00:15:25] Speaker 03: If Congress wanted to make sure one of these seven members was an industry viewpoint, isn't the natural way they would have done that to have an industry representative? [00:15:34] Speaker 02: No, you're not. [00:15:35] Speaker 02: I see my time is up. [00:15:35] Speaker 02: I'll answer your question. [00:15:37] Speaker 02: No, and our argument is not that there must be an industry seat on the committee. [00:15:40] Speaker 02: Our argument focuses on viewpoint balance, that there needs to be an opposing viewpoint. [00:15:44] Speaker 02: You can't have a one-sided echo chamber. [00:15:47] Speaker 02: issue before the committee. [00:15:48] Speaker 02: And the reason why I'm focused on industry is because industry is the group that was championing opposition to stronger air quality standards. [00:15:57] Speaker 02: So even though this particular statute doesn't say you need to have an industry rep or an industry seat, but in addition to the other three, EPA still has to comply with the fair balance requirement among the seven selected for the committee. [00:16:11] Speaker 02: And they needed an opposing viewpoint [00:16:14] Speaker 02: What they got was a committee that all supported stronger air quality standards and that violates the fair balance. [00:16:21] Speaker 05: In light of microbiological, do you think we are at liberty to hold that this is a non-justiciable question? [00:16:32] Speaker 02: No, Your Honor, I think microbiological is controlling. [00:16:35] Speaker 05: I understand it's... On the jurisdiction justiciability question. [00:16:39] Speaker 02: On reviewability, which is not jurisdictional in this court. [00:16:43] Speaker 02: But I understand that's a complicated issue, and there are persuasive opinions from Judge Edwards and Judge Silverman. [00:16:49] Speaker 02: I think the better case is physicians for social responsibility. [00:16:53] Speaker 02: And the reason why is because that [00:16:56] Speaker 02: case established a binding holding in this court that the FACA regulations promulgated by GSA provide law to apply. [00:17:03] Speaker 05: Was it focused on the point of view fairly balanced inquiry, or did it go in a different direction? [00:17:09] Speaker 02: It was not. [00:17:10] Speaker 02: That was an ethics issue. [00:17:12] Speaker 02: And so the court looked to part A of GSA's FACA regulations. [00:17:16] Speaker 02: Part B are the fair balance guidelines, which obviously are different than part A. They established different things. [00:17:25] Speaker 02: fact that there are GSA regulations that provide more detailed guidelines for an agency to follow when establishing a fairly balanced committee that we put those out in page 75 of our appendix. [00:17:38] Speaker 02: That is the law that can be applied and I think physicians for social responsibility is obviously binding and makes clear that that is law that can be applied in a fair balance challenge like this one. [00:17:49] Speaker 05: I see a question from the district court opinion in physicians for social responsibility [00:17:56] Speaker 05: Judge McFadden asks, suppose that the court could divine committee members, scientific and policy views and sought to balance membership between members. [00:18:05] Speaker 05: who represent plaintiff's views with members who represent opposing views. [00:18:08] Speaker 05: How would the court determine whether the views of a particular committee member are close enough to those of plaintiffs to find them representatives? [00:18:17] Speaker 05: And then he quotes Judge Silverman. [00:18:18] Speaker 05: Would the court rule, for instance, that when two parties agree on a certain percentage, what percentage, of issues, which issues, one may be deemed representative [00:18:30] Speaker 02: I think those are very persuasive points. [00:18:32] Speaker 02: I think Judge Silberman is persuasive. [00:18:34] Speaker 02: However, Judge McFadden got reversed on that issue in Physicians for Social Responsibility on the reviewability point. [00:18:41] Speaker 05: On whether the ethics was reviewable, but not whether the question before us is reviewable. [00:18:48] Speaker 02: That's right. [00:18:48] Speaker 02: But I think the GSA regulations provide the missing link that Judge Silberman was looking for in microbiological and that Judge McFadden was referring to, which is [00:18:57] Speaker 02: Judge Silverman's complaint was, how am I supposed to decide what are the relevant points of view? [00:19:01] Speaker 02: It could be infinite, right? [00:19:02] Speaker 02: But he also said, if somebody could narrow for me it down to two or three relevant points of view, that might be a different case and he might find it reviewable. [00:19:11] Speaker 02: GSA regulations, which were promulgated in 2001 after microbiological, [00:19:16] Speaker 02: Again, on page 75 of my brief, they talk about several factors that an agency must consider in establishing a fairly balanced committee. [00:19:23] Speaker 02: You start with the mission of the committee, and then you look to the types of perspectives required. [00:19:28] Speaker 02: For example, those of consumers, technical experts, public at large, academia, business, or other sectors. [00:19:35] Speaker 02: And then I think this is the key one. [00:19:38] Speaker 02: The need to obtain divergent points of view on the issues before the advisory [00:19:43] Speaker 02: Here, the issues before ASAT, whether the air quality standards are adequate, or whether they should be changed. [00:19:49] Speaker 02: There are two opposing viewpoints on that issue. [00:19:52] Speaker 02: We know that from the 2019 recommendation that said they're adequate. [00:19:55] Speaker 05: There's only two? [00:19:56] Speaker 05: There's at least two. [00:19:58] Speaker 05: But there might be infinite. [00:20:01] Speaker 05: There might be infinite, but that's why they're- Just take one of the words that you mentioned, consumer viewpoint. [00:20:07] Speaker 05: I mean, the three of us are consumers. [00:20:09] Speaker 05: I don't know if we agree on everything. [00:20:13] Speaker 02: That was Judge Silverman's point. [00:20:14] Speaker 05: Why is that wrong? [00:20:17] Speaker 02: Well, I think the GSA regulations constrain the agency's discretion quite a bit and point the agency [00:20:24] Speaker 02: to what to look at by clarifying what points of view are relevant. [00:20:28] Speaker 02: It's not all the many issues that might come before the committee. [00:20:33] Speaker 02: It is what are the issues before the committee according to the mandate. [00:20:36] Speaker 02: We know what the mandate is here. [00:20:38] Speaker 02: It's clear in section 7409 in the charter on page 7 of the Joint Appendix makes clear it's about [00:20:44] Speaker 02: Should the rules be strengthened? [00:20:47] Speaker 02: And, you know, maybe there are more than two, but the GSA regulations identify the types of perspectives the agency should look at to see, well, whether they have different points of view. [00:20:57] Speaker 02: But on any rulemaking issue, there are typically going to be two different camps. [00:21:01] Speaker 02: Should the rules be stronger or should they not be stronger? [00:21:05] Speaker 02: And in this case, I think it's not. [00:21:07] Speaker 05: There's a status quo. [00:21:08] Speaker 05: Should we keep the status quo? [00:21:10] Speaker 05: Increase regulations by a little, should we increase them by a lot? [00:21:13] Speaker 05: Should we decrease them by a little? [00:21:14] Speaker 05: Should we decrease them by a lot? [00:21:16] Speaker 05: And there's a spectrum from one extreme to the other that probably has, again, an infinite number of possible positions. [00:21:21] Speaker 02: That may be true, but there's really a binary question at the beginning, which is, are the rules adequate? [00:21:27] Speaker 02: And there was unanimity on this committee that the rules are not adequate. [00:21:31] Speaker 02: Now, after you cross that threshold, yes, the standard could be raised to an infinite number of levels. [00:21:38] Speaker 02: But there was an exclusion of the opposing viewpoint that the current rules are at. [00:21:43] Speaker 02: And so at a minimum, in extreme cases, the Fair Balance Standard provides law to apply. [00:21:49] Speaker 02: And this is an extreme. [00:21:51] Speaker 05: Let me ask one in the weeds question and then one big picture question. [00:21:56] Speaker 05: Do you know if the defendants in microbiological district court filed a 12b1 or 12b6 motion? [00:22:05] Speaker 05: Were they arguing there or were they arguing? [00:22:08] Speaker 02: That I don't know. [00:22:09] Speaker 02: I think what you're getting at is whether reviewability is jurisdictional. [00:22:14] Speaker 05: I'm trying to figure out what the district court did there. [00:22:16] Speaker 05: Did the district court say, this is non-reviewable, which the last paragraph in microbiological suggests? [00:22:25] Speaker 05: Or did the district court say, I'm dismissing because this is fairly balanced? [00:22:33] Speaker 05: And then the appellate court did what we [00:22:38] Speaker 02: I don't know. [00:22:38] Speaker 02: I know the circuit opinions we're talking about, justiciability. [00:22:42] Speaker 05: And then kind of taking one step back, this fair balancing requirement that Congress has imposed, do you think that it's constitutional in the first place for Congress to tell the president who he's allowed to get advice from, who he has to get advice from? [00:23:00] Speaker 02: It's a great question. [00:23:01] Speaker 02: I don't know the answer to that. [00:23:06] Speaker 02: Obviously not brief. [00:23:07] Speaker 02: I don't know your honor. [00:23:08] Speaker 02: I mean typically the president can get ice from whoever he wants That is in Congress can't constrain his ability to remove federal here and you seem to object to it President The administration said we want advice from these people put him on the Advisory Committee and you say no Congress enacted a statute to constrain in the administrators discretion and Congress's discretion [00:23:35] Speaker 02: not the President's. [00:23:36] Speaker 05: The Administrator works for the President. [00:23:38] Speaker 02: He does. [00:23:39] Speaker 02: And we're not complaining about the Administrator's firing in March of 2021. [00:23:43] Speaker 02: We've raised no claim to challenge the firing. [00:23:47] Speaker 02: We're just challenging the composition of the new committee. [00:23:51] Speaker 02: So I don't think this case presents that constitutional question where there's not a restriction on the President's removal power in this case. [00:23:58] Speaker 02: This is a case about [00:23:59] Speaker 02: compliance with the statutory requirement to ensure good scientific advice is provided to the agency. [00:24:05] Speaker 02: And in this case, the agency rigged the science to get the result they wanted because the president wanted to change the rule. [00:24:15] Speaker 03: Anything? [00:24:15] Speaker 03: You look like you have a question. [00:24:16] Speaker 03: My apologies. [00:24:16] Speaker 03: One more question. [00:24:17] Speaker 03: Because just of many things that are difficult about this statute, in this discussion, I think we've assumed that points of view represented means [00:24:26] Speaker 03: the views of individuals on specific issues to be studied. [00:24:30] Speaker 03: And I'm just wondering, how do we know that? [00:24:32] Speaker 03: Couldn't it also mean points of view in terms of their expertise or even who they're affiliated with? [00:24:42] Speaker 03: It says points of view represented after all. [00:24:45] Speaker 03: So maybe it means you think about, is there someone from an environmental group and from industry? [00:24:52] Speaker 03: How do we know that we should read it the way you want us to read it? [00:24:56] Speaker 02: I think it's a great question. [00:24:57] Speaker 02: And I have two responses. [00:24:59] Speaker 02: And I think this is mainly the government's point and the district court's point. [00:25:03] Speaker 02: But two responses are, one statute is this junk says functional balance and viewpoint balance. [00:25:09] Speaker 03: Well, then you got to tell me what functional means. [00:25:13] Speaker 02: Function means do we have the right type of people with the right qualifications to perform the work of the committee? [00:25:18] Speaker 02: And so this committee, putting lawyers and novelists on this committee probably wouldn't be a functionally balanced committee because I'm not qualified to [00:25:28] Speaker 02: do the work of the committee, but scientists and different types of experts are. [00:25:31] Speaker 02: So that's what functional balance is trying to accomplish. [00:25:35] Speaker 02: Viewpoint balance is trying to accomplish, well, what are their points of view? [00:25:38] Speaker 02: And I think, again, the GSA regulations are very helpful in describing at least what GSA thinks. [00:25:45] Speaker 02: Viewpoint balance means it's divergent points of view on the issues before the committee. [00:25:50] Speaker 02: So that's talking about how do they approach the issue? [00:25:53] Speaker 02: What are their opinions? [00:25:55] Speaker 02: And here, we know what the, [00:25:56] Speaker 02: the different points of view are because EPA tried to exclude. [00:26:00] Speaker 02: Thank you. [00:26:05] Speaker 05: Thank you. [00:26:14] Speaker 04: Good morning and may it please the court Joseph Fuso on behalf of the government. [00:26:18] Speaker 04: The standard I heard my friend on the other side offer [00:26:22] Speaker 04: its questions this morning is unworkable contrary to the statute and we should win on the merits under any applicable standard. [00:26:31] Speaker 04: I just wanna start by clearing up some misconceptions about who's on the committee and what the committee has done so far. [00:26:37] Speaker 04: Dr. Boylan has dissented on six different standards that have been reviewed so far. [00:26:43] Speaker 04: I can list them off. [00:26:45] Speaker 04: That's the PM 2.5 primary 24 hour standard, the PM 2.5 secondary 24 hour standard, [00:26:52] Speaker 04: the sulfur oxide secondary standards, the nitrogen oxide secondary standards, the ozone primary standards, and the ozone secondary standards. [00:27:01] Speaker 04: And that's just so far. [00:27:03] Speaker 04: And that's entirely predictable. [00:27:05] Speaker 04: If someone were trying to figure out what is Dr. Boylan going to do on the committee, what does he think in general on these issues? [00:27:11] Speaker 04: In 2021, when the EPA administrator was appointing this committee, the best data point was his most recent vote, not further tighten the PM2. [00:27:20] Speaker 04: standards. [00:27:21] Speaker 04: So just to begin with, even on their standard, we should win. [00:27:24] Speaker 04: But I want to highlight how extraordinary it would be to require the EPA administrator, when making these personnel decisions about a scientific advisory committee, to somehow make a predictive judgment about what all 100 candidates would do if they were faced with all 17 ambient air quality standards, and then try to assemble a group of seven people that maximally disagree with each other on all of those issues. [00:27:49] Speaker 04: That's nearly an impossible task, and it's one that's antithetical to the statute. [00:27:54] Speaker 04: This is a scientific advisory committee. [00:27:57] Speaker 04: The whole point of the committee is to review evolving science, discuss the topics with each other, bring to bear their individual points of view. [00:28:06] Speaker 04: And I'm sorry, so you have a question. [00:28:07] Speaker 05: I don't quite understand the distinction between, in this context, an EPA scientific committee and an EPA policy committee. [00:28:15] Speaker 05: They're making policy recommendations, right? [00:28:19] Speaker 04: I have to disagree with you on that, Your Honor. [00:28:21] Speaker 04: The statute says that you set ambient air quality standards at the level that is requisite to protect public health or the public welfare. [00:28:29] Speaker 05: That's guidance on what the policy should be, and they make recommendations on what the policy should be. [00:28:33] Speaker 05: I'm not saying that the policy is just picked from thin air without any consideration of science, but I mean, the EPA is a policy-making regulation-making administration. [00:28:46] Speaker 04: So the question would be something like, look, is a level of eight micrograms per square meter over a 24-hour period the level that is requisite to protect public health? [00:28:56] Speaker 04: Or are there adverse effects on the human body that kick in earlier than that that we need to know about? [00:29:01] Speaker 04: That's the work of the committee. [00:29:02] Speaker 04: I mean, if you review, yeah, it sounds like a question. [00:29:06] Speaker 05: should the policy be eight micro whatever but you started out by saying it would just be extraordinary to do this and I'm sympathetic to that but I mean maybe it's an extraordinary statute it strikes me as a pretty extraordinary step. [00:29:19] Speaker 04: So with respect, the statute here requires scientific perspectives. [00:29:23] Speaker 04: It's an independent scientific advisory committee that tells you the perspectives you're looking for are scientific perspectives, not ultimate conclusions on all 17 ambient air quality standards. [00:29:35] Speaker 05: If it was all science and nothing to do with policy, why did the administration make the major change to the committee that it made? [00:29:46] Speaker 04: Oh, so the administrator explained this. [00:29:48] Speaker 04: It's in the record. [00:29:49] Speaker 04: We explained it in our brief. [00:29:51] Speaker 04: The committee that this administrator faced when coming into office was chosen under very unusual circumstances under a brand new policy that had never been applied in the APA's history and the grant recipient issue. [00:30:04] Speaker 04: A policy that was later enjoined and then received. [00:30:08] Speaker 05: I'm sorry, Your Honor. [00:30:09] Speaker 05: Do you think that that committee was full of bad scientists? [00:30:12] Speaker 05: No. [00:30:13] Speaker 05: So why did it need to change it? [00:30:15] Speaker 05: Also, because- Again, they didn't like the method by which they were selected, but if it's just a scientific committee and they weren't bad scientists, then why not keep them? [00:30:23] Speaker 04: There is nothing unusual about an agency head coming into office and saying, I want to apply our traditional standards that we've always applied, not the standards that were recently enjoined by the Southern District of New York. [00:30:35] Speaker 04: There's nothing unusual about that at all. [00:30:37] Speaker 04: And then if you just look at the process that they ran, it is by the book and ensures a fair balance of all the scientific perspectives [00:30:44] Speaker 04: So they say, thank you for your service. [00:30:46] Speaker 04: Please reapply, because we need different scientific perspectives. [00:30:50] Speaker 04: They assemble a group of 100 candidates, evaluate them on the basis of their scientific expertise. [00:30:56] Speaker 04: They say in their solicitation for nominations, we need the following perspectives to be fairly balanced. [00:31:01] Speaker 04: And they list all of those scientific perspectives. [00:31:05] Speaker 04: What they don't need at that early stage in the process is we need people who are willing to raise their hand right now and say, before reviewing any [00:31:13] Speaker 04: of the evolving scientific evidence, the package that this committee actually reviews when it does its own work. [00:31:19] Speaker 04: Before doing any of that work, we need you to pre-commit to what you think should happen with every single one of the standards. [00:31:26] Speaker 05: I think I asked Mr. Shoemake this as well, but what do you think is the binding holding coming out of microbiological with regard to the justiciability question? [00:31:34] Speaker 04: There is none. [00:31:35] Speaker 04: I think that's pretty clear. [00:31:36] Speaker 04: So you have Judge Edwards in dissent reaching the justiciability question. [00:31:41] Speaker 04: You have Judge Silberman. [00:31:43] Speaker 04: uh, concurring, uh, reaching the issue, but they both disagree with each other. [00:31:47] Speaker 04: No holding there. [00:31:48] Speaker 04: Judge Friedman doesn't address the issue. [00:31:50] Speaker 05: Well, is he, I don't think he addresses it expressly, but he says this committee is fairly balanced, which seems like you can't say it is fairly balanced unless the question of whether it's fairly balanced is a question that can be answered. [00:32:09] Speaker 04: So I disagree. [00:32:10] Speaker 04: I think I have two lines of response, your honor. [00:32:12] Speaker 04: The first is just, it is beyond clear that when a court reaches a decision on the merits without addressing a threshold issue that does not stand for a holding that that the threshold issue that was not raised is like precluded as a matter of precedent. [00:32:26] Speaker 04: This is just an application of that principle. [00:32:29] Speaker 04: every human being can have their own view of what they would do with a fair balancing requirement if they were going to appoint a committee. [00:32:36] Speaker 04: And yes, you can ask everyone on the planet to try to figure that out with respect to any given committee. [00:32:40] Speaker 04: That's not the question Heckler asks. [00:32:42] Speaker 05: I think I'm probably on board, but imagine that I think [00:32:49] Speaker 05: Judge Friedman's opinion is best read to say it is justiciable. [00:32:52] Speaker 05: Judge Silverman's is, of course, read to say that it's not. [00:32:56] Speaker 05: They were the only two, I think, who joined the judgment in full. [00:33:01] Speaker 05: I think that that means we don't consider Judge Edwards' dissent, because you don't consider the views of a dissent from the judgment when you're trying to figure out the holding of the court. [00:33:14] Speaker 05: Do you agree with that, or do you think I'm kind of doing fractured opinion analysis wrong? [00:33:23] Speaker 04: I wouldn't want to give you an off-the-cuff response to that, Your Honor. [00:33:25] Speaker 04: That's a bigger question going beyond just this case. [00:33:27] Speaker 04: I haven't figured it out entirely. [00:33:30] Speaker 04: But I think I would think of it in this way. [00:33:32] Speaker 04: Judge Edwards says the reason this is not an open question in our circuit is because of national anti-hunger, where this court resolved a fair balancing claim on the merits. [00:33:41] Speaker 04: Now, he's wrong about that. [00:33:42] Speaker 04: You can just read National Anti-Hunger, and you know for a certainty those judges did not decide anything about just disability. [00:33:48] Speaker 04: In that respect, Judge Freeman's opinion is identical to the majority opinion of National Anti-Hunger. [00:33:53] Speaker 04: They're relying on microbiological, but they're wrong if they're also wrong if National Anti-Hunger didn't already establish this 10 years earlier. [00:34:02] Speaker 04: Now, so unjusticiability, sorry. [00:34:05] Speaker 03: Let me ask a question about putting microbiological to the side. [00:34:08] Speaker 03: The question, as I understand it, is whether there are even administrable standards in extreme cases. [00:34:13] Speaker 03: So let me offer you a hypothetical that I view as pretty extreme. [00:34:17] Speaker 03: I love hypothetical. [00:34:20] Speaker 03: So just imagine there's an EPA committee that is policy-focused. [00:34:25] Speaker 03: And it's got 20 members. [00:34:28] Speaker 03: And you have people with all types of different expertise. [00:34:32] Speaker 03: But they are all from the Sierra Club. [00:34:36] Speaker 03: And they do similar work to what this committee does. [00:34:41] Speaker 03: Why can't a court step in and say, look, points of view represented? [00:34:46] Speaker 03: If it means something, it has to mean at least you have to have some representation [00:34:51] Speaker 03: from the different types of affected entities. [00:34:54] Speaker 03: And in this very extreme case, we're going to order you to redo this. [00:35:00] Speaker 03: So there's at least in some sense, there are different points of view represented and not just functional balance. [00:35:06] Speaker 03: Would you concede that that is something a court could do? [00:35:12] Speaker 04: I guess I'd need to know more about the specific work of the policy committee and whether you've identified a degree of uniformity on one axis of membership of that committee. [00:35:22] Speaker 04: But is that necessarily relevant to the policy, the work of the committee? [00:35:25] Speaker 04: I don't know. [00:35:26] Speaker 04: I need to know more. [00:35:27] Speaker 04: This just goes to the point that there are nearly infinite perspectives one could take with regards to every policy issue under the sun. [00:35:35] Speaker 04: These are advisory committees whose sole point is to help the administrator. [00:35:39] Speaker 04: reach a good decision is to help the administrator in accomplishing his or her tasks. [00:35:44] Speaker 04: That person is best positioned to figure out what policies, what their vision is, what kind of advice they need. [00:35:52] Speaker 04: And therefore, taking together lots of trade-offs, the court's not really qualified to consider what the composition is going to look like. [00:35:58] Speaker 04: And so, for example, in your hypo, it's going to depend on what the applicant pool looks like and any number of other issues. [00:36:04] Speaker 03: But I also just want to say- I do think it would be very odd for the court to ever mandate the composition. [00:36:09] Speaker 03: But I do think a court can say, when you have no plausible story at all about how there's a relevant diversity of points of view represented, you need to go reconstitute your committee. [00:36:21] Speaker 03: It's not entirely, this is LDF versus Barr is this hypothetical on one view, Judge Bates' opinion there. [00:36:28] Speaker 03: And so these things do happen. [00:36:30] Speaker 03: And I don't see why a court can't step in in just those extreme cases. [00:36:35] Speaker 04: Again, I think that the types of perspectives that are going to best help the agency are for the agency to consider in the first instance. [00:36:41] Speaker 04: Congress reserved to itself the primary role in enforcing FACA compliance, saying, hey, we're going to make a continuing review of all of this. [00:36:48] Speaker 04: Congress did not supply any judicially manageable standards. [00:36:51] Speaker 04: for the fair balance requirement. [00:36:53] Speaker 04: And finally, the EPA is trying to withstand judicial review of the final rule that it issues. [00:36:58] Speaker 04: This is not the end of the line here. [00:37:00] Speaker 04: The EPA desperately needs good advice so that it can withstand the gauntlet of judicial review that always follows from the promulgation of the final air quality standard. [00:37:12] Speaker 04: So we've addressed. [00:37:13] Speaker 05: Do you think NAACP was correctly decided by the district court? [00:37:19] Speaker 04: I'm sorry, Your Honor. [00:37:20] Speaker 04: As I stand here, I'm just losing. [00:37:22] Speaker 05: Everybody on the committee was a police officer, I think, or from the police community. [00:37:27] Speaker 05: And the district court said, well, that's not fairly balanced because I guess all cops think the same. [00:37:31] Speaker 05: I don't quite. [00:37:35] Speaker 05: I don't think it was correctly. [00:37:36] Speaker 05: Do you think it was correctly decided? [00:37:37] Speaker 05: Based on those facts, does that sound like? [00:37:39] Speaker 04: So I guess as I understand it, there was some sort of committee. [00:37:42] Speaker 04: They were all counts. [00:37:43] Speaker 04: Someone said you can't have all counts. [00:37:46] Speaker 05: It's harder for you. [00:37:48] Speaker 04: I just think it's hard to say, look, anyone who's ever had that kind of a job, they all think alike. [00:37:53] Speaker 04: I mean, you all have the same job. [00:37:56] Speaker 04: You all think very differently from each other. [00:37:57] Speaker 04: The same is true for me and my colleagues. [00:37:59] Speaker 04: People have wildly divergent ultimate conclusions, regardless of their institutional affiliations, very frequently. [00:38:06] Speaker 04: So yes, we do think that these cases just aren't justiciable, but we're not asking you to make huge law here. [00:38:12] Speaker 04: We should win under any applicable standard in this case. [00:38:16] Speaker 04: And again, that just goes back to Dr. Boyland, Dr. Chao, the actual committee members in this case. [00:38:22] Speaker 04: Dr. Boyland, who routinely descends from so far six different analyses on six different ambient air quality standards. [00:38:34] Speaker 03: Just because you didn't have an opportunity in the briefing, do you have a response to the standing theory that was offered in the reply brief? [00:38:42] Speaker 04: Yes, I do, Your Honor. [00:38:43] Speaker 04: So the theory they're relying on now is equal footing. [00:38:48] Speaker 04: They say they need to be considered on equal footing with every other applicant. [00:38:51] Speaker 04: Well, that's exactly what happened here. [00:38:53] Speaker 04: I mean, the record is replete with evidence. [00:38:56] Speaker 04: This is page 42, 250, 263, and 321 of the Joint Appendix. [00:39:02] Speaker 04: But all 100 applicants were evaluated according to the exact same metrics. [00:39:07] Speaker 04: And selections were made on the basis of the need to have a seven-person committee fully staffed with all of the scientific perspectives needed to do a very big job in a broad range of factual areas. [00:39:19] Speaker 04: Those are the metrics under which they were evaluated. [00:39:21] Speaker 04: This is not like Bakke, where the facts are some types of people get evaluated under one yardstick, and some types of people get a different yardstick. [00:39:31] Speaker 04: It's just not like that case. [00:39:32] Speaker 04: And therefore, it's not like the Colorado case. [00:39:35] Speaker 03: Let me ask you this, because you're certainly right. [00:39:38] Speaker 03: It's not a direct analogy. [00:39:40] Speaker 03: But it's similar in the following respect. [00:39:42] Speaker 03: or the fundamental claim is, if you followed the law, I would have had X percent greater chance of being selected. [00:39:50] Speaker 03: And their theory here is basically, you needed someone like me on the committee. [00:39:56] Speaker 03: FACA demands a set aside for someone like me. [00:40:00] Speaker 03: You didn't realize that. [00:40:01] Speaker 03: But if you'd ran this process again, I would obviously have a better chance at securing this government benefit. [00:40:09] Speaker 04: But with respect, I'm not sure they're making an identity-based claim, not saying you need someone like me. [00:40:15] Speaker 04: Someone with this viewpoint. [00:40:17] Speaker 04: I'm trying to simplify it. [00:40:18] Speaker 04: Right, right, right. [00:40:19] Speaker 04: So there, it's just like we used the exact same yardstick with respect to every applicant. [00:40:24] Speaker 04: This is just not like Baki. [00:40:26] Speaker 04: And crucially, there's no expectation of an appointment to any advisory committee. [00:40:32] Speaker 04: The statute and the GSA regs make it perfectly clear it is wholly within the discretion of the appointing [00:40:38] Speaker 01: It's not like Bakke, but is it like the Harvard College case? [00:40:45] Speaker 04: I guess I don't. [00:40:46] Speaker 04: I'm not immediately thinking of a distinction. [00:40:49] Speaker 04: I mean, they're both affirmative action cases where the allegation is there's a difference. [00:40:52] Speaker 01: I suppose there was clear evidence that the administrator chose half of the committee on the basis of race. [00:41:01] Speaker 04: Oh, we concede that would be just like Bakke. [00:41:04] Speaker 01: That would be unconstitutional, right? [00:41:06] Speaker 04: No one's raised a constitutional claim here. [00:41:09] Speaker 04: We're not getting into that. [00:41:10] Speaker 04: I'm just saying there would be standing if there were the allegation where there's just different yardsticks. [00:41:14] Speaker 01: If a university can't give a bump to somebody because of their race, which is what Harvard College holds close, then why should the administrator of EPA be able to do that? [00:41:27] Speaker 01: We're not saying that happened here, and we're making no argument. [00:41:30] Speaker 01: Well, in the selection document, at least three or maybe more of the people were identified by their race, as if that were a credential. [00:41:48] Speaker 04: So your honor, I take those to be sort of by the way notations, but not a decisional criteria in those documents. [00:41:54] Speaker 04: I think that's clear from page forty two of the joint appendix where the staff recommendation says we evaluated the hundred candidates on demonstrated competence, knowledge and expertise in scientific and technical fields, air pollution and air quality issues. [00:42:08] Speaker 04: and that this committee is thus balanced, that's page 42, then the basis for recommendation, the basis for the staff's recommendation is listed, you see an example of this at page 48 of the Joint Appendix, those are the grids where the staff goes through and analyzes the basis for the recommendation for each of the people who are being recommended. [00:42:26] Speaker 04: None of that, none of the material inside of that basis for recommendation grid lists anything about sex for race. [00:42:32] Speaker 04: So it is not unusual for a decision maker [00:42:36] Speaker 01: How did the staff know the race of the individual applicants? [00:42:40] Speaker 04: I guess I don't have information for you on that. [00:42:43] Speaker 01: What? [00:42:43] Speaker 04: I don't have information for you on that, Your Honor. [00:42:45] Speaker 04: I don't know. [00:42:45] Speaker 04: It's not reflected. [00:42:50] Speaker 03: If there are no further. [00:42:51] Speaker 03: If we think, if someone thinks EPA here considered race and gender based on the bullet points in the decision memo, do you have any argument that that does not render [00:43:06] Speaker 03: the selection process arbitrary and capricious? [00:43:11] Speaker 03: I think you might have suggested they could have brought a different type of constitutional claim or something like that if they thought that that was what the evidence showed. [00:43:22] Speaker 03: But do you have an argument that it is permissible to consider demographic factors like that? [00:43:30] Speaker 04: We haven't raised that argument here. [00:43:31] Speaker 04: We're not asking you to decide. [00:43:33] Speaker 04: Our sole argument on that point is that did not happen. [00:43:36] Speaker 04: It was not a decisional criteria. [00:43:38] Speaker 04: Again, if I could just go through exactly why we think that is, there's the... [00:43:44] Speaker 04: The whole process for selecting these folks, it was very clear that the criteria were going to be what kind of scientific expertise do you bring to the committee. [00:43:52] Speaker 04: You see that from the email about the reconstitution of the committee where they say we're seeking nominations of experts in a variety of disciplines. [00:43:59] Speaker 04: You see that in the federal register listing where they say the disciplines they're looking for in order to have a balance of perspectives. [00:44:04] Speaker 04: You see that in the EPA staff evaluation of the candidates. [00:44:07] Speaker 04: quote, based on demonstrated competence, knowledge, and expertise in the scientific areas. [00:44:12] Speaker 04: You see that in the Brennan Declaration. [00:44:15] Speaker 04: This is the agency official who's in charge of all of this. [00:44:18] Speaker 04: Explaining further, yeah, we evaluate these people on the basis of their scientific disciplines. [00:44:22] Speaker 04: And then, look, basically what they have is a press release saying, by the way, we're pretty proud of the diverse [00:44:29] Speaker 04: of the gender and ethnic diversity, the folks we have chosen, but presidents of both parties have been proud of the diversity of the candidates they have chosen going back for decades that cannot yield a legal problem in the selection process. [00:44:45] Speaker 05: Thank you very much. [00:44:46] Speaker 04: Thank you. [00:44:52] Speaker 05: You were out of time, but we'll do two minutes. [00:44:55] Speaker 02: Thank you. [00:44:55] Speaker 02: Three quick points, if I have enough time. [00:44:57] Speaker 02: First, on standing, the 10th Circuit is squarely addressed in individuals standing to address, to challenge a non-selection for violating a fairly balanced requirement under FOC. [00:45:09] Speaker 02: So you agree, the government, that we don't have standing. [00:45:12] Speaker 02: We'll create a direct conflict with the 10th Circuit. [00:45:14] Speaker 02: I just want to emphasize, for purposes of our standing, the court assumes the truth of the merits of our merits claim. [00:45:20] Speaker 02: So you have to assume the truth that there was a violation of the fair balance requirement. [00:45:24] Speaker 02: And under our theory of the case, had the government not violated that requirement, it would have been easier for our plaintiffs to be selected for the committee. [00:45:32] Speaker 02: And if you require them to redo the selection, they would have a better chance of being selected in the second round if EPA were establishing a fairly balanced panel. [00:45:40] Speaker 02: Second, on reviewability, neither Judge Silverman or I think Judge McFadden had the benefit of the Supreme Court's ruling in Department of Commerce, which clarified that Section 701 is an extremely narrow exception to reviewability, really confined to areas that are traditionally committed to agency discretion. [00:45:58] Speaker 02: And the court in that case found [00:46:00] Speaker 02: a very broad delegation of authority to the Secretary of Commerce to conduct the census was enough to provide law to apply here. [00:46:10] Speaker 02: You not only have standard in the statute, you have mandatory directive, shall, and you also have the benefit of the GSA regulations that fill in any gaps with respect to what fair balance might mean. [00:46:22] Speaker 05: What's the overlap, if any, the overlap, if any, between that APA provision and just general Article 3 political question, non-justiciability? [00:46:35] Speaker 02: I think those are separate considerations. [00:46:38] Speaker 02: Congress in Section 701 created two exceptions to reviewability. [00:46:42] Speaker 02: We're only talking about the second one here about matters that are committed to agency discretion. [00:46:46] Speaker 02: The Supreme Court has said that's areas like prosecutorial discretion or where there's really no law to apply. [00:46:53] Speaker 02: It all collapses into the question of whether there is law to apply either way. [00:46:58] Speaker 02: Physicians for social responsibility kind of makes that clear. [00:47:01] Speaker 02: If the court previously relied on subpart A of the GSA regulations for law to apply, this court can also rely on subpart B. And if you disagree with us on reviewability and agree with the government, this would be a direct conflict with the fifth and the 10th circuits on reviewability. [00:47:18] Speaker 02: Finally, just to wrap up, our APA claim. [00:47:20] Speaker 05: Very briefly, please. [00:47:21] Speaker 02: Our APA claim is probably the easiest way to resolve this case because there is no contemporaneous explanation in the record for why this committee is fairly balanced. [00:47:30] Speaker 05: Thank you very much.