[00:00:01] Speaker 02:
Case number 24-1050 et al.

[00:00:04] Speaker 02:
Commonwealth of Kentucky et al petitioners versus Environmental Protection Agency and Michael S. Regan in his official capacity as administrator of the U.S.

[00:00:14] Speaker 02:
Environmental Protection Agency.

[00:00:16] Speaker 02:
Mr. Lin for the industry petitioners, Mr. Abramson for the state petitioners, Ms.

[00:00:21] Speaker 02:
Buckley for the respondents, part one and two of EPA's brief, Ms.

[00:00:25] Speaker 02:
Sankramane for the respondents, parts three and four of EPA's brief,

[00:00:29] Speaker 02:
for the state interveners.

[00:00:36] Speaker 09:
Good morning, it may please the court.

[00:00:38] Speaker 09:
Albert Lynn on behalf of the industry petitioners.

[00:00:41] Speaker 09:
I'm sharing time today with Mr. Abrahamson from the Kentucky AG's office, but only I plan to do rebuttal for our side and I hope to reserve three minutes for that purpose.

[00:00:49] Speaker 09:
With my opening time, I'd like to focus on the question of EPA's authority and begin with some important table setting.

[00:00:56] Speaker 09:
Specifically, I think the briefing has both sharpened and narrowed the dispute over EPA's authority.

[00:01:01] Speaker 09:
Although there was substantial briefing over the first sentence of 109D1, and particularly the meaning of the word appropriate, everyone agrees that it's not before this court.

[00:01:11] Speaker 09:
EPA has acknowledged that this action was not premised on any authority granted by that sentence, and thus cannot and does not seek to defend the action on that ground.

[00:01:20] Speaker 09:
What remains is EPA's claim that it has either implicit authority

[00:01:26] Speaker 09:
or authority granted by the second sentence of 109D1 to reconsider a NAICS determination without conducting a thorough review, it's a quote, of the air quality criteria, or frankly, any review at all.

[00:01:38] Speaker 09:
That's at page 42 of their brief, in its discretion at any time.

[00:01:43] Speaker 09:
Among other problems, we think that claimed authority, which EPA itself admits is a question of first impression, simply does not exist.

[00:01:51] Speaker 09:
Now, if I could start first, I'd start with the claim that EPA has implicit authority to reconsider NAC's decisions.

[00:01:57] Speaker 09:
As a threshold matter, it's not clear to us that EPA is really relying on this authority.

[00:02:01] Speaker 09:
It says a number of times in its brief that it is relying on the second sentence, the authority of the second sentence of Section 109D1.

[00:02:10] Speaker 09:
And I think that's because, as this Court has explained in a series of cases,

[00:02:14] Speaker 09:
Congress can displace an agency's implicit reconsideration authority, and it can do that where Congress creates a statutory mechanism capable of rectifying a mistake in action or sufficient to that task.

[00:02:26] Speaker 09:
That's the American method.

[00:02:28] Speaker 05:
Well, you seem to, well, obviously over this five-year cycle, there's a thorough review required.

[00:02:33] Speaker 09:
Yes, Your Honor.

[00:02:33] Speaker 05:
You agree with that?

[00:02:34] Speaker 05:
And then you seem to agree that EPA can conduct an all cycle review you just disagree with how it is to come to that determination.

[00:02:43] Speaker 09:
That is correct your honor.

[00:02:45] Speaker 05:
But think about it this way too.

[00:02:47] Speaker 05:
Under your theory.

[00:02:51] Speaker 05:
You believe the off-cycle review has to have a thorough review?

[00:02:55] Speaker 09:
Correct, Your Honor, yes.

[00:02:56] Speaker 05:
Okay, but if you already have to go through almost five years of conducting a thorough review just to potentially set a new standard, and then you're also gonna say that on an off-cycle review, you need a thorough review, that timing issue doesn't seem to really work out because it already takes so many years just to get to the new standard.

[00:03:17] Speaker 09:
I understand, Your Honor.

[00:03:18] Speaker 09:
I think there's a practical question of how long a thorough review may or may not take.

[00:03:22] Speaker 09:
I mean, let's say it took two years.

[00:03:25] Speaker 09:
You could do an off-cycle review that takes another two years, and then you could pick up another five-year one.

[00:03:31] Speaker 06:
Has it ever happened in history?

[00:03:32] Speaker 09:
Afterwards.

[00:03:34] Speaker 09:
They've often been slower than five years.

[00:03:36] Speaker 06:
Have they ever been?

[00:03:37] Speaker 09:
Not that I'm aware of, Your Honor.

[00:03:39] Speaker 06:
So it's not a realistic reading.

[00:03:41] Speaker 09:
Yes, Your Honor.

[00:03:43] Speaker 09:
But I do think that the text, that's what the text requires.

[00:03:46] Speaker 09:
I think that's what Congress had in mind.

[00:03:49] Speaker 06:
I mean, if we go to the second sentence in 7409B1 mean.

[00:03:56] Speaker 09:
I think everyone agrees there that that's the one about the manner, Your Honor.

[00:04:02] Speaker 09:
I think everyone agrees that's about requiring notice and comment.

[00:04:05] Speaker 09:
EPA says that itself.

[00:04:06] Speaker 06:
It certainly says it can be revised.

[00:04:09] Speaker 06:
Yes, your honor, it matters promulgated.

[00:04:12] Speaker 06:
Yes, your honor promulgated notice of comment rulemaking.

[00:04:16] Speaker 06:
Yes, noticing that certainly happened here.

[00:04:18] Speaker 09:
Yes.

[00:04:18] Speaker 09:
Yes.

[00:04:18] Speaker 09:
And we're not contesting that there was no notice of comment.

[00:04:21] Speaker 06:
Right.

[00:04:21] Speaker 06:
So, so the revision of the standards here.

[00:04:27] Speaker 06:
Fully comported with 7409 B1.

[00:04:31] Speaker 09:
With the requirements of 109B1, yes.

[00:04:34] Speaker 09:
But as EPA says on their brief.

[00:04:36] Speaker 06:
That doesn't require anything like thorough or anything else for revisions.

[00:04:40] Speaker 06:
It's just the same.

[00:04:41] Speaker 06:
It's talking about the manner, which you have to do when you're revising these primary NAC standards here.

[00:04:47] Speaker 09:
Correct, Your Honor, yes.

[00:04:48] Speaker 06:
It doesn't say thorough?

[00:04:49] Speaker 09:
No, it doesn't.

[00:04:50] Speaker 06:
It just says same manner, which was complied with.

[00:04:52] Speaker 06:
So why isn't that the end of the story?

[00:04:54] Speaker 09:
Because we believe that that, and I think EPA agrees with that, that that is an additional

[00:04:58] Speaker 09:
requirement.

[00:04:59] Speaker 09:
So I think they don't look to that provision for authority, because I think they agree with us, if you look at page 34 of their brief, that that is about a notice and comment requirement.

[00:05:11] Speaker 09:
It does not grant them the discretion they're looking for.

[00:05:14] Speaker 09:
They haven't argued that that provision is what gives them the authority.

[00:05:17] Speaker 09:
They say what gives them the authority is the second sentence of 109D1.

[00:05:21] Speaker 09:
Again, I think the reason for that is they've

[00:05:24] Speaker 06:
I just want to understand one thing.

[00:05:25] Speaker 06:
So D1 was not in the statute originally.

[00:05:28] Speaker 06:
It came in in 1977 or 79, right?

[00:05:31] Speaker 09:
Yes.

[00:05:32] Speaker 06:
OK.

[00:05:33] Speaker 06:
So between 70 and, sorry, is it 79 or 77?

[00:05:37] Speaker 06:
My brain's not remembering which year the D1 came in.

[00:05:40] Speaker 09:
I don't remember either, Your Honor.

[00:05:42] Speaker 09:
I'm sorry.

[00:05:42] Speaker 06:
So it's like 77.

[00:05:44] Speaker 06:
OK.

[00:05:44] Speaker 06:
So prior to that time, did they have no authority?

[00:05:50] Speaker 06:
They could revise at any time.

[00:05:52] Speaker 09:
Yes, Your Honor.

[00:05:53] Speaker 09:
They, I think, well, so they have the implicit authority to reconsider.

[00:06:00] Speaker 06:
No, under B-1, so prior to 77.

[00:06:03] Speaker 06:
Yes.

[00:06:04] Speaker 06:
When D-1 comes in.

[00:06:05] Speaker 09:
Yes.

[00:06:06] Speaker 06:
They had the obligation to promulgate for our present purposes, primary NACs.

[00:06:11] Speaker 06:
And they had the authority to revise them at any time, as long as they did it in the same manner, notice and comment rulemaking.

[00:06:20] Speaker 06:
That's correct?

[00:06:21] Speaker 09:
Yes, Your Honor.

[00:06:21] Speaker 06:
So if this were a 1976 case, what they did here would be perfectly lawful.

[00:06:28] Speaker 09:
I think that in the period between that we're talking about before 1091 came in, they would have had the implicit authority to reconsider.

[00:06:36] Speaker 06:
You keep saying implicit, it's explicit, it's right here.

[00:06:39] Speaker 06:
They can be, they may be revised as long as done in this manner.

[00:06:44] Speaker 06:
That's not implicit.

[00:06:44] Speaker 06:
That's explicit in the statutory tax of B1.

[00:06:48] Speaker 06:
I'm not articulating between B and D. Let me know.

[00:06:51] Speaker 06:
B is in boy one.

[00:06:52] Speaker 09:
Of course, Your Honor.

[00:06:52] Speaker 09:
So I guess I would give you.

[00:06:54] Speaker 06:
Is that right?

[00:06:54] Speaker 06:
So for 1976, this would all be perfectly lawful.

[00:06:58] Speaker 09:
If it were 1976, this would be fine, because they did notice and comment.

[00:07:03] Speaker 06:
So what in D1 tells us that it was taking away that authority from B1?

[00:07:09] Speaker 06:
Because that's not normally how we read subsequent legislation.

[00:07:15] Speaker 09:
Well, I think there's two answers to that, Your Honor.

[00:07:19] Speaker 09:
And the first one is that, I think, again, I don't think that's the way EPA reads it, I think.

[00:07:24] Speaker 06:
Well, we're told, you know, it doesn't matter how they read statutes anymore, so.

[00:07:28] Speaker 09:
I agree.

[00:07:29] Speaker 09:
From my viewpoint.

[00:07:30] Speaker 09:
That is correct, Your Honor.

[00:07:31] Speaker 09:
But they are still bound by Channery.

[00:07:33] Speaker 09:
They're still bound.

[00:07:34] Speaker 06:
That's a very open question.

[00:07:36] Speaker 06:
So whether Channery applies to a basic question of statutory authority as opposed to decision making.

[00:07:44] Speaker 09:
I think that's fair, Your Honor.

[00:07:46] Speaker 09:
But I don't think that that question has been raised in this case.

[00:07:48] Speaker 09:
I think they are.

[00:07:49] Speaker 06:
I'm just asking you, just as a textual matter.

[00:07:52] Speaker 06:
So let's put aside what they said or not said.

[00:07:55] Speaker 06:
Just reading the statute up front textually, they had the authority to do what they did here under B1.

[00:08:01] Speaker 06:
Full stop.

[00:08:03] Speaker 06:
D1 doesn't say anything about taking away that authority.

[00:08:09] Speaker 09:
No, Your Honor.

[00:08:09] Speaker 09:
I don't think it took it.

[00:08:10] Speaker 06:
So why should we read it to

[00:08:14] Speaker 06:
confound that authority by putting an impossible framework that you said has never worked in conceivable.

[00:08:22] Speaker 06:
It's not like it's getting easier.

[00:08:23] Speaker 06:
It's probably getting harder over time.

[00:08:25] Speaker 06:
It'll work.

[00:08:27] Speaker 06:
Your honor, I guess there's nothing in the text that tells me about that.

[00:08:29] Speaker 09:
Yes, your honor.

[00:08:30] Speaker 09:
And so my second answer, other than Chenere, is I would say we don't read 109D1 as taking away what Bea was referring to.

[00:08:38] Speaker 09:
I think it adds additional requirements.

[00:08:40] Speaker 06:
What, why?

[00:08:41] Speaker 06:
It doesn't, I mean, this is your argument from your reply brief that the second sentence doesn't talk about standards other than new standards.

[00:08:51] Speaker 06:
It doesn't talk about revising standards.

[00:08:53] Speaker 06:
It talks about revising criteria.

[00:08:55] Speaker 06:
And of course, when you revise criteria, you would then go to B1 to revise the standards.

[00:09:00] Speaker 06:
Would you not?

[00:09:01] Speaker 06:
I mean, this was your argument in your reply brief that the second sentence that they're relying on doesn't talk about revising standards.

[00:09:09] Speaker 09:
That is correct.

[00:09:10] Speaker 06:
It doesn't.

[00:09:11] Speaker 06:
So it can't be altering the authority to revise standards under B1?

[00:09:16] Speaker 09:
Well, the way we read the second sentence is that it is not an independent grant of authority, that it is tied to the first sentence of 109D1, and that that grant of the ability to revise more often than every five years incorporates all the requirements and

[00:09:35] Speaker 09:
powers that are discussed in the first sentence of 1091.

[00:09:38] Speaker 08:
So let me try to understand how this works as you explain.

[00:09:44] Speaker 08:
What's an example, first of all, of a criterion?

[00:09:48] Speaker 08:
What's it look like?

[00:09:50] Speaker 09:
Of an air quality criteria?

[00:09:52] Speaker 09:
Yeah.

[00:09:54] Speaker 09:
The way he explains it is it's really it's a document that talks about the scientific studies and.

[00:10:01] Speaker 08:
That's good enough.

[00:10:02] Speaker 08:
Yes.

[00:10:03] Speaker 08:
And from that, they arrive

[00:10:06] Speaker 08:
standard that they deem sufficient to meet the statutory margin of error.

[00:10:12] Speaker 09:
Yes, Your Honor.

[00:10:14] Speaker 08:
Now, this argument out of your reply brief at 14 says look at the statute, right?

[00:10:24] Speaker 08:
The second sentence talks about reviewing and revising the criteria.

[00:10:29] Speaker 08:
Yes, Your Honor.

[00:10:32] Speaker 08:
Or promulgating new standards.

[00:10:35] Speaker 08:
Yes.

[00:10:36] Speaker 08:
But here we have the agency revising the standard.

[00:10:39] Speaker 09:
That's right.

[00:10:39] Speaker 08:
Not revising a criterion and not promulgating a new standard.

[00:10:44] Speaker 08:
Yes, it's revising existing standards.

[00:10:46] Speaker 08:
Now, you surface this, which seems like a very sensible observation.

[00:10:52] Speaker 08:
It's a starting point, but then diminished it, I guess, as being not the better interpretation in your view.

[00:11:03] Speaker 08:
Why is that?

[00:11:06] Speaker 09:
We don't think that Congress would have written the second sentence in that paragraph that just addressed those three things, reviewing criteria, revising criteria, and promulgating new standards.

[00:11:18] Speaker 08:
Even though that's the way it's written?

[00:11:19] Speaker 09:
Yes.

[00:11:20] Speaker 09:
We think that those nine words that we're talking about are really just statutory shorthand for the much more complex mouthful that is in the first sentence.

[00:11:31] Speaker 09:
The Supreme Court recognized in the Kellogg-Brown root case that Congress will sometimes use statutory shorthand.

[00:11:36] Speaker 09:
as a succinct way to refer to something that is much lengthier and much more complex.

[00:11:42] Speaker 09:
And that first sentence says that at every five years, EPA shall conduct a thorough review of the air quality criteria and the standards, and then it shall review, revise them as may be appropriate.

[00:11:54] Speaker 08:
So I take it then, the second sentence, what you say about the second sentence on page 14 is not your alternative argument.

[00:12:04] Speaker 09:
No, our argument, we are saying, yes, if this court disagrees with us that the two sentences are interlinked and that the second sentence is merely a statutory shorthand reference that modifies the timing requirements, we were saying, if you think they can be decoupled, then it does not give EPA the authority they are asking for.

[00:12:27] Speaker 09:
But we don't think that is the way you should read it.

[00:12:30] Speaker 09:
We think the best reading of those two sentences is that one,

[00:12:34] Speaker 09:
is simply referring back to the other and making sure that it's clear that EPA has the authority to do what's required in that first sentence more often and more frequently.

[00:12:45] Speaker 08:
You want to live and die on the first sentence.

[00:12:48] Speaker 08:
Live or die on the first sentence.

[00:12:50] Speaker 09:
We believe that the first sentence is what imposes requirements on their revision.

[00:12:56] Speaker 09:
And we think the question before this court, which is what EPA has said, is do they have independent authority granted by the second sentence of 1091?

[00:13:05] Speaker 09:
That is the only basis on which they have defended their rule.

[00:13:08] Speaker 09:
And so I think if this court, yes, I'm sorry, Your Honor.

[00:13:12] Speaker 06:
I don't want to step on.

[00:13:14] Speaker 08:
Well, it just seemed to me that the information

[00:13:17] Speaker 08:
The interpretation you surfaced on page 14 of the library suggests that if the agency determines that there's new science and so on, it can revise the criteria or wait.

[00:13:36] Speaker 08:
In other words, if there's a five-year period of repose,

[00:13:39] Speaker 08:
New things may come along, revisions may occur after two years, but the standard can't be changed until the fifth year.

[00:13:47] Speaker 08:
So there's some repose for the industry.

[00:13:50] Speaker 09:
Yes, Your Honor.

[00:13:50] Speaker 09:
I think that is one way.

[00:13:52] Speaker 09:
We think if you're going to decouple the two sentences, that is the only reading of the second sentence that makes sense, which is that in between the five-year periods, they can review and revise the criteria.

[00:14:03] Speaker 09:
They could promulgate new standards if there's some new criteria pollutant for which there has been no pre-existing standard.

[00:14:10] Speaker 09:
But as to the revision of existing standards, that is governed by.

[00:14:15] Speaker 06:
And it is definitely nullifying B1.

[00:14:19] Speaker 06:
And yet the sentence that you are putting so much weight on doesn't talk anywhere.

[00:14:25] Speaker 06:
As you argued in your reply brief, does not talk about revising standards.

[00:14:30] Speaker 06:
It only talks about new standards.

[00:14:32] Speaker 06:
And so it's not only that you want us to read this as a shorthand for the very long sentence that preceded it, but then we also have to write in review and revised criteria or standards.

[00:14:46] Speaker 06:
or promulgate new standards, and on top of reading that in, we have to say that was meant to vitiate, nullify the plain tax of B1.

[00:14:58] Speaker 06:
I mean, there was no reason to put standards in the second revision of standards there, because they already had that authority under B1, but they needed to have the ability to look at the criteria.

[00:15:08] Speaker 06:
And then once they've found criteria, if they found that suddenly something is toxic and killing people,

[00:15:17] Speaker 06:
And they need to address it right away, the notion they have to sit around waiting three years because Congress somehow implicitly nullified the authority to act and revise standards under B-1.

[00:15:29] Speaker 06:
It's quite an extraordinary statutory interpretation exercise.

[00:15:35] Speaker 09:
Here's my answer to B-1, Your Honor.

[00:15:38] Speaker 09:
I don't read B1 as a grant of the authority to revise.

[00:15:43] Speaker 09:
I think it is imposing a requirement on the manner in which the revision can occur.

[00:15:49] Speaker 06:
Why would you prescribe a, why in 1970 would they say how they can revise them if they couldn't revise them?

[00:15:57] Speaker 09:
I think the revision authority was implicit.

[00:16:00] Speaker 06:
As this court may be revised and here's how.

[00:16:05] Speaker 06:
Why is that not the better reason reading of the sentence?

[00:16:08] Speaker 06:
I don't understand why they would have an explicit condition on an implicit authority.

[00:16:13] Speaker 06:
And if I read may be revised as.

[00:16:17] Speaker 06:
They may be revised.

[00:16:21] Speaker 06:
And here's how.

[00:16:24] Speaker 06:
Isn't that the more natural reading than to assume that they went explicitly to tell them how to do something they weren't even sure they had the authority to do?

[00:16:32] Speaker 09:
I don't think so, Your Honor.

[00:16:33] Speaker 09:
So if I could take a step back again, I think Congress understood that EPA has the authority to revisit what it has done before.

[00:16:42] Speaker 09:
I think this court recognized that.

[00:16:44] Speaker 09:
That's in the implicit authority cases that I've discussed, American Methyl, New Jersey.

[00:16:49] Speaker 09:
So I think Congress recognized that in promulgating NAC standards, EPA could revise them.

[00:16:54] Speaker 09:
I think what it was saying in 109B, one is it says they may be revised in this manner.

[00:17:02] Speaker 09:
I think it's just talking about the manner in which that can be done.

[00:17:07] Speaker 09:
And it is requiring the same manner, which is the notice and comment that was prescribed.

[00:17:11] Speaker 05:
But if you go to 109D1 and look at the last sentence, the administrator may review and revise criteria or promulgate new standards earlier or more frequently than required under this paragraph.

[00:17:24] Speaker 05:
You're not given any context to timing.

[00:17:29] Speaker 09:
Well, I think, I'm sorry if I'm not understanding your question.

[00:17:32] Speaker 09:
I think the earlier more frequently in the second sentence of 109D1 is referring to the five-year intervals that are discussed in the first sentence.

[00:17:40] Speaker 09:
of 1091.

[00:17:41] Speaker 09:
I think everyone agrees on that.

[00:17:42] Speaker 05:
Okay, but it says review and revise in that last sentence.

[00:17:48] Speaker 09:
Yes, it is talking about reviewing and revise.

[00:17:50] Speaker 09:
It says review and revise criteria or promulgate new standards.

[00:17:55] Speaker 09:
And so as I was discussing with Judge Ginsburg, I think there's two potential ways.

[00:18:00] Speaker 05:
But the point of revising the criteria is to promulgate essentially a new standard or revise the standard.

[00:18:08] Speaker 09:
Yes, Your Honor.

[00:18:09] Speaker 09:
So I think there's two ways to read that second sentence.

[00:18:14] Speaker 09:
The first is that it is, I think as we contend, it is a shorthand in reference to all the stuff that's discussed in the first sentence.

[00:18:23] Speaker 09:
That first sentence talks about four potential actions.

[00:18:27] Speaker 09:
The review of criteria, the revision of criteria, the revision of standards, and promulgating new standards.

[00:18:36] Speaker 09:
Four things, right?

[00:18:38] Speaker 09:
Reviewing criteria, revising criteria, revising existing standards, and promulgating new standards.

[00:18:44] Speaker 09:
So one way to read the second.

[00:18:45] Speaker 05:
Promulgating a standard is based on criteria.

[00:18:49] Speaker 09:
Yes, Your Honor.

[00:18:50] Speaker 05:
OK, so you're skipping over when you say vision of standard without looking at the criteria.

[00:18:57] Speaker 09:
No, Your Honor, I'm sorry.

[00:18:59] Speaker 09:
I'm just trying to parse whether the two are focused on the text of the second sentence.

[00:19:04] Speaker 09:
Because I think, again, I think there's two ways

[00:19:07] Speaker 09:
to read the two sentences in 1091.

[00:19:09] Speaker 09:
One is that they are coupled, and one is that they are decoupled.

[00:19:13] Speaker 09:
EPA's position is that they are decoupled, our position is that they are coupled.

[00:19:18] Speaker 09:
I think the reason, and what I'm trying to get at is, when you look at the first sentence, it talks about four potential actions, reviewing criteria, revising criteria, reviewing existing standards, and promulgating new standards.

[00:19:30] Speaker 09:
As I was discussing with Judge Ginsburg,

[00:19:32] Speaker 09:
The second sentence only talks about three of those things, reviewing criteria, revising criteria, and promulgating new standards.

[00:19:41] Speaker 09:
And so one way to read those two sentences is that they are independent and they're not coupled together.

[00:19:47] Speaker 09:
If that's true, the second sentence only grants authority to do three things, review criteria, revise criteria, and promulgate new standards.

[00:19:57] Speaker 09:
If you're taking a strict textual interpretation,

[00:20:00] Speaker 09:
which is what the EPA wants to do, you are stuck with just those three actions in the second sentence.

[00:20:05] Speaker 06:
Which makes perfect sense because there's always a separate statutory authority in the same section for revising the standards.

[00:20:13] Speaker 09:
Your Honor, if you read 109B1 as granting the authority to revise, I think when Congress legislates, they understand that the agency has the ability to revise what they have done previously and

[00:20:26] Speaker 09:
I think all 109B1 was doing is dictating the manner in which that revision may be done, not granting the authority, because I think the authority was present as an implicit matter.

[00:20:37] Speaker 09:
And I think all it was doing in 109B1 was saying- Couldn't be present.

[00:20:41] Speaker 06:
I mean, this is the original statute, 1970.

[00:20:44] Speaker 06:
There wouldn't have been any implicit at the time Congress wrote this sentence.

[00:20:47] Speaker 06:
This was creating the authority.

[00:20:49] Speaker 06:
May be revised.

[00:20:52] Speaker 06:
Yes, but your honor, I think I mean every case is your best case that language like this that something may be done in a manner.

[00:20:59] Speaker 06:
Is only explicit as to the manner, but implicit to whether it may be done at all.

[00:21:07] Speaker 09:
I don't have a case for you, your honor.

[00:21:09] Speaker 06:
What I have a grammatical example.

[00:21:11] Speaker 06:
in plain English in which maybe revised in a manner or maybe pick your other verb in a manner doesn't give you both the authority to do the thing that you may do as well as telling you how to do it.

[00:21:27] Speaker 09:
Well, I think the best textual answer to you, Your Honor, would be that you would say maybe revised

[00:21:34] Speaker 09:
and done so in this manner.

[00:21:37] Speaker 06:
I think the fact that there is... We just don't ding Congress for not putting more words in, because that's those are unneeded words.

[00:21:45] Speaker 06:
Maybe revise in a manner.

[00:21:47] Speaker 06:
Right?

[00:21:49] Speaker 09:
My two best answers for you, Your Honor, are one, that is not the authority that EPA has claimed here.

[00:21:53] Speaker 06:
My car may be repaired.

[00:21:54] Speaker 06:
I tell the auto mechanic, my car may be repaired in the same manner it was originally designed.

[00:22:02] Speaker 06:
And I leave my car.

[00:22:04] Speaker 06:
That does not mean they have to sit around wondering if they can actually repair the car.

[00:22:10] Speaker 09:
Your honor, I think, again, it starts from what is the premise that we're starting from?

[00:22:14] Speaker 09:
Did EPA have authority to revise as an implicit matter or not?

[00:22:21] Speaker 06:
And I think- No, no, no.

[00:22:22] Speaker 06:
I'm sorry.

[00:22:24] Speaker 06:
Maybe I'm just clearly misunderstanding something here.

[00:22:27] Speaker 06:
I'm starting from 1970, the original statute, which has not been amended.

[00:22:35] Speaker 06:
And if I'm reading, it is explicitly granting them the authority to revise standards.

[00:22:41] Speaker 06:
And it's the only way to explain why in D1, they left, you said there's four things in the first sentence, three in the second, which one did they leave out?

[00:22:51] Speaker 06:
Revise standards, which is already addressed here.

[00:22:55] Speaker 06:
And it makes perfect sense with the purpose of the statute, as Judge Chiles was saying, imagine they're able to revise the criteria

[00:23:04] Speaker 06:
as thoroughly as you want, and they discover suddenly a new toxic pollutant that is killing people.

[00:23:14] Speaker 06:
And your reading of this statute that you propose, despite its public health animating force, would be that EPA would have to sit around, wringing his hands for two or three years going, this is horrible, this is horrible, there's nothing we can do, because we can't yet revise the standard.

[00:23:34] Speaker 06:
If we did revise it, we would know how to do it and notice and comment.

[00:23:37] Speaker 06:
But Congress hasn't told us we can do it.

[00:23:40] Speaker 06:
So it's unnatural reading of the statute.

[00:23:43] Speaker 09:
To your hypothetical as to whether there's a new toxic pollutant, I think then they would be promulgating a new standard.

[00:23:48] Speaker 09:
So we'd be talking about something.

[00:23:51] Speaker 09:
A newly discovered effect, yes, would be your hypothetical.

[00:23:55] Speaker 06:
I'm not a scientist at all.

[00:23:56] Speaker 09:
Let me try this for you.

[00:23:59] Speaker 09:
I think if Congress had enacted the Clean Air Act in 1970 and not included, maybe revised in a manner promulgated, in the same manner as promulgated, EPA would have the authority to revise.

[00:24:12] Speaker 06:
Can you say that one more time?

[00:24:16] Speaker 09:
Let's say we strike one of that sentence that you and I have been discussing, maybe revised in the same manner as promulgated.

[00:24:22] Speaker 09:
If that was not there,

[00:24:25] Speaker 09:
EPA would still have the authority to revise existing standards.

[00:24:30] Speaker 09:
And the reason for that is that, as this court has said, when Congress grants EPA the authority to do something, it also has the implicit authority to reconsider it.

[00:24:41] Speaker 09:
That's what this court said in the American Methyl case.

[00:24:43] Speaker 09:
That's what this court said in the New Jersey case, in Ivy sports.

[00:24:47] Speaker 09:
So if we didn't have that sentence, they would have had the authority to revise a standard that they promulgated.

[00:24:55] Speaker 09:
So that I think is where we're starting from.

[00:24:57] Speaker 09:
And then so that if they already have the implicit authority, the way I understand that sentence is it wasn't Congress granting it, it was putting, restricting the matter.

[00:25:09] Speaker 06:
That's your rationale.

[00:25:12] Speaker 06:
How do I know Congress just wanted to be explicit?

[00:25:16] Speaker 06:
Sometimes Congress, it is not uncommon to find in the US code say Congress granting authorities,

[00:25:23] Speaker 06:
giving powers that agencies would implicitly have.

[00:25:28] Speaker 06:
Right?

[00:25:28] Speaker 09:
Yes, Your Honor.

[00:25:30] Speaker 09:
Yes, yes, right.

[00:25:30] Speaker 06:
No, Congress is not... And so we got words here.

[00:25:33] Speaker 09:
Is not always particularly clear.

[00:25:34] Speaker 06:
It's the only thing that explains why they didn't bother to put revised standard up here in D1.

[00:25:40] Speaker 06:
Otherwise, it's just...

[00:25:42] Speaker 06:
Because you can't do your shorthand.

[00:25:44] Speaker 06:
I mean, basic statutory construction says we cannot do your shorthand.

[00:25:48] Speaker 06:
That second sentence brings in everything from the first sentence, because then we would have to say that a revised standard is either covered by criteria, which we know is not.

[00:26:00] Speaker 06:
Those are specialized terms in the statute.

[00:26:02] Speaker 06:
Or we would have to say a revised standard is covered by a new standard, but we know that's not true, because these are specialized words in the statute.

[00:26:10] Speaker 06:
So there's nowhere

[00:26:12] Speaker 06:
under your reading to put all of the first sentence and the second sentence, because we'd admit we would have to take out revising standards.

[00:26:22] Speaker 09:
Your Honor, I think the way you would do it is you would understand that those nine words are shorthand.

[00:26:27] Speaker 06:
But when they don't shorthand, we could do that if Congress used one generalized word, the foregoing powers, something like that.

[00:26:35] Speaker 06:
But as you said, it would be

[00:26:37] Speaker 06:
strange when Congress said I'm discussing four things and then does another sentence and says okay now as to three of those things here's another additional provision and we have pretty settled statutory construction principles that when Congress deliberately includes and excludes language even less closer than this sentence is right next to each other we assume it was intentional

[00:27:08] Speaker 09:
Yes, Your Honor, I understand that.

[00:27:10] Speaker 09:
I do think that the Supreme Court has recognized that you can have shorthand.

[00:27:14] Speaker 09:
I get that this is perhaps a less than artful form of shorthand.

[00:27:19] Speaker 06:
It would be in the contradiction of that well-established statutory construction principle.

[00:27:25] Speaker 06:
And when Congress includes intentionally a mislanguage that it included in the sentence right before it, that we assume that that was intentional.

[00:27:34] Speaker ?:
Correct?

[00:27:35] Speaker 09:
I think that's right, Your Honor.

[00:27:36] Speaker 09:
But again, so we don't think 109, and I would be the first to admit to you, I don't think 1091 is drafted in the way that I necessarily would have drafted it.

[00:27:43] Speaker 09:
But that's the best way that I can make sense of the two sentences.

[00:27:49] Speaker 09:
And Your Honor, if I could add one other point, if you take the position, if you agree with the position that EPA is taking,

[00:27:57] Speaker 09:
which is that they can revise existing standards at any time, and that they have this freewheeling authority.

[00:28:03] Speaker 09:
Your honor, if you read it into 109B1, it's just a grant of authority to revise.

[00:28:08] Speaker 09:
There's no requirement.

[00:28:10] Speaker 06:
Oh, it's not just a grant of authority to revise.

[00:28:12] Speaker 06:
It has to be done in the same manner.

[00:28:13] Speaker 06:
It has to go through notice and comment, which is a common check called the agency authority and power.

[00:28:18] Speaker 09:
Yes, of course it does.

[00:28:19] Speaker 09:
It has to go through notice and comment.

[00:28:21] Speaker 09:
But what it does not require is the thorough review of the air quality criteria

[00:28:26] Speaker 09:
And EPA itself has argued here that they think they have the authority, they have the power to revise and revisit a NAICS standard without even reviewing the air quality criteria at all.

[00:28:37] Speaker 09:
And to Judge Childs' point, they have also said and acknowledged at multiple points that the air quality criteria is the scientific basis for the standards.

[00:28:46] Speaker 09:
So their contention here is that they have this independent authority to revise the standards at any time without even looking at the air quality criteria.

[00:28:57] Speaker 09:
That doesn't make any sense.

[00:28:58] Speaker 00:
That's a distinction.

[00:29:01] Speaker 08:
What do you mean by independent authority?

[00:29:02] Speaker 08:
They're anchoring it in the second sentence.

[00:29:05] Speaker 08:
I'm sorry, Your Honor.

[00:29:07] Speaker 08:
They're claiming an independent authority.

[00:29:09] Speaker 08:
Independent of what?

[00:29:10] Speaker 09:
Oh, I'm sorry.

[00:29:11] Speaker 09:
They're claiming, independent of the requirement to review, to do a thorough review.

[00:29:16] Speaker 09:
Right.

[00:29:16] Speaker 09:
And they're basing it on the second sentence.

[00:29:17] Speaker 09:
And they're basing it on the second sentence.

[00:29:19] Speaker 09:
They're not basing it on a 109B.

[00:29:20] Speaker 08:
Second sentence, to your point, doesn't talk about revising standards.

[00:29:24] Speaker 09:
That's right, Your Honor.

[00:29:25] Speaker 09:
But what I was responding to, Judge Millett, is

[00:29:30] Speaker 09:
If you read 109B as a grant of the authority to revise existing standards, it does include a notice and comment requirement, but it does not require them to do a review or a thorough review of the air quality criteria.

[00:29:43] Speaker 06:
And as they have said themselves... Well, if they didn't explain... I mean, part of their notice and comment process is going to be reasonably explaining.

[00:29:51] Speaker 06:
based on substantial evidence, why they're making this change.

[00:29:55] Speaker 06:
And the statute is pretty clear they're going to have to look to criteria.

[00:29:58] Speaker 06:
And in fact, in this case, they did have some intervening criteria.

[00:30:01] Speaker 06:
But it also would allow the agency to do, as you said, we even implicitly allow agencies to go do and go, whoops, either whoops, we completely misunderstood something.

[00:30:13] Speaker 06:
There's a health effect, a serious health effect.

[00:30:18] Speaker 06:
that can be, but is not being addressed.

[00:30:21] Speaker 06:
We just misgaged, miscalculated, or we have had intervening studies come in in the last two years that changed the calculus dramatically, and we need to promote health, which is our mission here.

[00:30:41] Speaker 06:
We need to impose a new, revised standard, not a new standard, I get this, a revised standard

[00:30:48] Speaker 06:
And we don't think Congress wants us to wait three more years while people are dying.

[00:30:53] Speaker 06:
And they'll have to explain it.

[00:30:55] Speaker 06:
And people will challenge that and say whether they properly explained why they're doing this.

[00:31:02] Speaker 06:
Correct?

[00:31:03] Speaker 06:
So I don't understand.

[00:31:03] Speaker 06:
It's not some free-ranging authority to do whatever they want and make things up disconnected from real evidence about health impacts.

[00:31:14] Speaker 06:
So I'm not sure I understand the concern to be.

[00:31:17] Speaker 06:
I mean, I think the reality of trying to say they have to do what they can't even do often in five-year intervals, in less than five-year intervals.

[00:31:28] Speaker 06:
And does everyone admit there's no evidence that they were even able to do that before Congress put

[00:31:32] Speaker 06:
this D1 into the statute.

[00:31:36] Speaker 06:
And that just paralyzes the agency from reacting to new health information.

[00:31:41] Speaker 06:
So that's sort of our alternative reading.

[00:31:44] Speaker 06:
It reads the second sentence to become an empty letter because it is inadministrable.

[00:31:50] Speaker 09:
I think it's a recognition that when Congress required the thorough review in 109D1, what it wanted to do was make sure that EPA was looking at all the available science

[00:32:01] Speaker 09:
and that one administration or the other was not simply choosing the scientific evidence that it thought was most relevant to the decision it wanted to make.

[00:32:11] Speaker 09:
That's how we understand the point of 109D1, was Congress wanted to put that restriction on EPA to make sure that it looked at everything.

[00:32:18] Speaker 06:
Once you've already done, you've just finished your five-year review, you have collected an awful lot of information.

[00:32:26] Speaker 06:
and then new information, and they'll have to establish that it's credible and substantial evidence to support change, all those.

[00:32:33] Speaker 06:
But let's assume it passes all those markers, and it warrants immediate adjustment to an existing standard.

[00:32:43] Speaker 06:
There's no reason Congress would say, you have to go revise and look at everything all over again.

[00:32:48] Speaker 06:
You just did it.

[00:32:49] Speaker 06:
You're working, you've got the baseline, and that baseline, the structure of the statute says that baseline holds for five years.

[00:32:56] Speaker 06:
And if you get new information on top of that, then you can revise the standard, revise the criteria, do new standards.

[00:33:05] Speaker 09:
Yes, Your Honor.

[00:33:06] Speaker 09:
And I think you and I are in agreement that we're talking about the new information.

[00:33:10] Speaker 06:
Like I think when you do when you do a new thorough review on top of a baseline, you got a baseline from this comprehensive review.

[00:33:16] Speaker 06:
This is like.

[00:33:18] Speaker 06:
If you need to update your dissertation, you have to start all over again, do all your research again, and rewrite the entire dissertation.

[00:33:25] Speaker 06:
No one would say that.

[00:33:27] Speaker 09:
I don't think that's... You update it.

[00:33:30] Speaker 09:
I don't think that's how a thorough review would work even in the five-year intervals.

[00:33:34] Speaker 09:
I don't think you go back and throw out everything that was done.

[00:33:37] Speaker 06:
So it would be a different thorough review than what you do in the first sentence?

[00:33:40] Speaker 06:
The second sentence, thorough review, would be a different review than the first?

[00:33:44] Speaker 09:
Well, a thorough review, right.

[00:33:45] Speaker 09:
So if we could sort of walk through how one of these things might work.

[00:33:48] Speaker 09:
So let's say you've done your five-year.

[00:33:50] Speaker 09:
thorough review and so you have your updated air quality criteria in light of whatever you did in 2000 just to pick a year right and then new information comes out between 2000 and 2002.

[00:34:04] Speaker 09:
To do another thorough review doesn't mean you just throw all the work from 2000 in the trash can right I mean there's a document has been prepared the evidence has been reviewed and EPA doesn't have to redo

[00:34:16] Speaker 09:
a review of all the science that existed before 2000, it has to review the science from 2000 and 2002.

[00:34:23] Speaker 09:
But what the thorough review requires is that it look at all of the science from 2000 to 2002.

[00:34:27] Speaker 06:
That's just a simple, you can take care of that in notice and comment rulemaking challenges.

[00:34:34] Speaker 06:
If they ignored relevant evidence that's in the record of contrary science they didn't consider, that's a valid basis for challenges.

[00:34:41] Speaker 06:
That fits right within the notice and comment rulemaking limitation on revising standards.

[00:34:46] Speaker 06:
Your Honor, that's... Is that read through... Tell me if I'm wrong.

[00:34:49] Speaker 06:
Is that read through a review here?

[00:34:53] Speaker 06:
Every five years, they have to look at all the criteria.

[00:34:58] Speaker 06:
Is that correct?

[00:34:59] Speaker 09:
They have to look at all the science for the air quality criteria.

[00:35:03] Speaker 06:
For all the criteria.

[00:35:04] Speaker 06:
All the science for all the criteria, at least since the prior one?

[00:35:09] Speaker 09:
Yes, Your Honor.

[00:35:10] Speaker 09:
Yes, all the science.

[00:35:11] Speaker 06:
But you're saying now if we take thorough review down into the second sentence, they don't have to review all the science for all the criteria.

[00:35:24] Speaker 06:
The thorough here means it sounds like thorough in the first sentence has this comprehensiveness meaning.

[00:35:32] Speaker 06:
And the thorough you want in the second sentence has

[00:35:36] Speaker 06:
a target, a more colloquial meaning.

[00:35:40] Speaker 09:
I understand your question.

[00:35:42] Speaker 06:
Roll up your sleeves.

[00:35:43] Speaker 09:
No, I don't think it's different because I don't think even in the first sentence that it's requiring EPA to go back

[00:35:52] Speaker 09:
I don't mean this pejoratively, right?

[00:35:53] Speaker 09:
But to the beginning of time and look at all that science again.

[00:35:56] Speaker 06:
I mean, I think- I'm not saying that.

[00:35:58] Speaker 06:
I'm sorry.

[00:35:58] Speaker 06:
Right.

[00:35:58] Speaker 09:
There's been a lot of work that's been done in the last- I'm not saying that.

[00:36:00] Speaker 06:
What I'm saying is the first sentence means thorough, means not just diligent and hardworking.

[00:36:07] Speaker 06:
Yes.

[00:36:07] Speaker 06:
But it means all the criteria.

[00:36:11] Speaker 09:
And well, and for our purposes, it means all of the science- No, no, no.

[00:36:16] Speaker 06:
In sentence one, do they not- and again, tell me if I'm wrong.

[00:36:20] Speaker 06:
Definitely.

[00:36:23] Speaker 06:
Are they obligated to review information for all of the criteria underlying NACs?

[00:36:31] Speaker 09:
Yes, Your Honor.

[00:36:32] Speaker 09:
Yes.

[00:36:33] Speaker 09:
Every five years, they are required to do that.

[00:36:35] Speaker 06:
I had read thorough there to mean comprehensive.

[00:36:40] Speaker 06:
All of the criteria that underlie all of the existing NACs.

[00:36:47] Speaker 06:
Maybe if there's any new ones you're thinking about, too.

[00:36:49] Speaker 06:
That wouldn't be a review.

[00:36:50] Speaker 06:
That would be initial look.

[00:36:51] Speaker 06:
You surely got to review.

[00:36:53] Speaker 06:
all of the criteria for all of the existing NACs.

[00:36:56] Speaker 06:
Certainly you can start with the prior five-year marker, but you've got to do all of them.

[00:37:02] Speaker 06:
So thorough here means not just hard working, it means comprehensive.

[00:37:07] Speaker 09:
It does, although that is not the point of dispute here between us, right?

[00:37:10] Speaker 06:
No, no, but then if you want to bring thorough down into the second sentence, they would only be able to review all the criteria.

[00:37:17] Speaker 06:
When it says review and revise criteria, not criterion,

[00:37:21] Speaker 06:
Singular, this is criteria plural.

[00:37:23] Speaker 06:
They would have to look at all of the criteria.

[00:37:27] Speaker 06:
Otherwise, thorough is losing that comprehensive meaning in sentence one and becoming just the hardworking and diligent reading in sentence two.

[00:37:40] Speaker 09:
I think there's another reading of thorough review, which I think is the reading that everybody here agrees on.

[00:37:45] Speaker 09:
That's with respect to one particular criteria and one particulars next and a thorough there.

[00:37:52] Speaker 09:
So say for this PM 2.5 in particular, it has its own criteria.

[00:37:58] Speaker 09:
I think the dispute between the parties is does thorough review require looking at all of the science since, you know, that's developed since the last one for that particular criteria or not.

[00:38:09] Speaker 09:
EPA's position and admission here is that they did not look at all of the new science since the 2020 decision that they want to reconsider.

[00:38:18] Speaker 09:
Instead, they what?

[00:38:19] Speaker 06:
What would your reading your your desire to take thorough down to the second sentence and to write in revised standards?

[00:38:29] Speaker 06:
What would that give you that you're not already going to get?

[00:38:34] Speaker 06:
From notice and comment rulemaking and judicial review under arbitrary capricious substantial evidence standards under B1.

[00:38:43] Speaker 09:
I think the difference would be it would require EPA to go through all of the science.

[00:38:50] Speaker 09:
It puts the burden on the agency to look at all of the science and not just impose a screening criteria, which is what they did here.

[00:39:02] Speaker 09:
They said, here are the only studies that we're going to look at and only those studies.

[00:39:07] Speaker 09:
And that's what we think.

[00:39:08] Speaker 06:
What was the screening criteria?

[00:39:10] Speaker 09:
It's pretty lengthy, but I can point you to the page on the record.

[00:39:14] Speaker 06:
Can you give me a plain English summary?

[00:39:16] Speaker 08:
You don't need thorough for that.

[00:39:18] Speaker 08:
The APA takes care of that.

[00:39:22] Speaker 09:
Well, I think the problem with the difference, I think it's the same question that Judge Mallette is asking, is what's the difference between an arbitrary and capricious review of their review versus a requirement that they do a thorough review.

[00:39:36] Speaker 09:
And I think the difference is where does the

[00:39:39] Speaker 09:
Where does the initial burden fall?

[00:39:41] Speaker 09:
I mean, they have to go out and look at all of the scientific evidence and actually, you know, lay eyes on it and review it and do an analysis and figure out how that applies.

[00:39:51] Speaker 06:
I'm sure it doesn't mean

[00:39:53] Speaker 06:
they can make some judgment as to, there should be some sort of cracker box things out there that they don't have to look at every single thesis written by everybody that's duplicative.

[00:40:05] Speaker 06:
And the way this works, I mean, that's what they're supposed to do in their rule makings.

[00:40:09] Speaker 06:
under notice and comment and substantial evidence review.

[00:40:13] Speaker 06:
And then what happens is parties come in and go, you missed one.

[00:40:17] Speaker 06:
You missed this one.

[00:40:18] Speaker 06:
And it's really important.

[00:40:19] Speaker 06:
You missed this one.

[00:40:19] Speaker 06:
It's really important.

[00:40:21] Speaker 06:
They do have this obligation to do good government work.

[00:40:25] Speaker 06:
But the whole point of notice and comment rulemaking is that we invite the public to help out and let us know if we missed anything.

[00:40:34] Speaker 06:
And you come.

[00:40:36] Speaker 06:
And so I still don't understand how the outcome is going to be any different.

[00:40:40] Speaker 09:
Your honor, I think the difference is that it puts the burden on the public.

[00:40:45] Speaker 09:
If we haven't gone out in campus and we haven't found a particular study, they can say, well, those studies weren't brought to our attention.

[00:40:52] Speaker 06:
And so here's what we could find.

[00:40:56] Speaker 06:
Now, if they say, we chose only to look at PhD dissertations from Cambridge, then someone could go, well, that's not a reasonable restriction.

[00:41:07] Speaker 06:
But if they say, here's what we found, and we assume good faith by the agency, I assume you're not attacking that, then if they have an explicit, if you're concerned about some explicit criterion here that limited, you artificially limited the review, that's, you don't even have to come back with a study, although it would be helpful to show some prejudice from your elucidated harm.

[00:41:30] Speaker 06:
But you can point out that what they did was arbitrary by narrowly focusing the review.

[00:41:35] Speaker 06:
But if they've got everything they could find, and you don't have any ideas of something they missed, then you're going to fail under either standard.

[00:41:45] Speaker 09:
So two answers.

[00:41:46] Speaker 09:
I have the site for you.

[00:41:47] Speaker 09:
It's 89, February 16, 212.

[00:41:50] Speaker 09:
And that's where they set out the criteria for their admittedly less than thorough review.

[00:41:55] Speaker 06:
You're at Mike's admittedly less than thorough?

[00:41:58] Speaker 09:
Well, they say a number of times, excuse me, including in the response to comments.

[00:42:07] Speaker 09:
So first of all, they say in their brief, page 30, EPA did not report.

[00:42:14] Speaker 06:
Hang on.

[00:42:14] Speaker 09:
I'm sorry, Your Honor.

[00:42:15] Speaker 06:
Let me get to the right tab here.

[00:42:18] Speaker 06:
All right.

[00:42:25] Speaker 09:
In their brief at Page 30, they say, as industry petitioners note, in reviewing and advising the air quality criteria and standards in the final rule, EPA did not purport to complete the thorough review of all aspects of the air quality criteria.

[00:42:39] Speaker 06:
Right.

[00:42:39] Speaker 06:
It was focused on the health concern.

[00:42:42] Speaker 09:
It focused on only certain science.

[00:42:45] Speaker 06:
In RTC... Certain science or certain problem?

[00:42:49] Speaker 09:
Certain science.

[00:42:50] Speaker 09:
And that gets to the criteria that I pointed to at 16212.

[00:42:54] Speaker 09:
At JA 2800, which is the response to comments, page 121, they say, UPA acknowledges that the ISA supplement does not satisfy UPA's obligation to complete a thorough review.

[00:43:06] Speaker 06:
And that's just a legal argument.

[00:43:08] Speaker 06:
They weren't doing.

[00:43:08] Speaker 09:
Well, I think it's an admission that they didn't do the thorough review that they understand to be required by the statute.

[00:43:13] Speaker 06:
In your position that if you were, if the way you could challenge what they did was,

[00:43:21] Speaker 06:
challenge notice and comment review, a judicial review of their notice and comment process, that you would not be able to make that exact same argument and that there's anything that would prevent it from succeeding if you were to establish the materiality of the error?

[00:43:38] Speaker 06:
I think that there's a higher burden on them under this statutory- Is there anything that would prevent you from prevailing on that exact same argument through judicial review of notice and comment rulemaking?

[00:43:51] Speaker 09:
We would have had to have found scientific studies, I think, to explain why we think the limitation is arbitrary and capricious.

[00:44:01] Speaker 06:
I think there's a... You're telling me the agency set up front there, if there's something in their language that you think...

[00:44:06] Speaker 06:
gives up the game right there.

[00:44:07] Speaker 06:
If not, if it was legalese about we're not doing first sentence, we're doing second sentence, or we're doing B1, whichever, it was legalese, and that's less concerning.

[00:44:17] Speaker 06:
But if you can't show some prejudice, I mean, either way, you're coming to judicial review.

[00:44:24] Speaker 06:
on this, right?

[00:44:26] Speaker 06:
And so I just, I don't understand how the outcome will be materially different given that thorough in the second sentence sounds to me like it just means they have to have considered all relevant evidence and studies.

[00:44:46] Speaker 06:
Right?

[00:44:47] Speaker 06:
At the end of the day, that's what you're saying.

[00:44:48] Speaker 06:
No one's arguing they have to consider irrelevant or one-off sort of crazy, loony-tuned views.

[00:44:55] Speaker 06:
But if they have to consider all relevant studies, and even if they said, we've done as thorough a review as we can, if you wanted to challenge it, you're going to have to tell them, and then you're going to have to tell the court.

[00:45:13] Speaker 06:
I mean, you're going to have to go through the same sort of judicial review process of alerting them through notice and comment rulemaking, and then challenging it in court.

[00:45:22] Speaker 06:
It's the exact same thing.

[00:45:23] Speaker 09:
Yes, Your Honor.

[00:45:24] Speaker 09:
I think if they had agreed that they had a requirement to do a thorough review, then our complaint would be that what they did

[00:45:34] Speaker 09:
was not sufficient.

[00:45:35] Speaker 09:
And it would be an arbitrary and capricious or substantial evidence type challenge to the quality of the thorough review that they did.

[00:45:42] Speaker 09:
But the claim that they have here is that they don't have to do a review at all.

[00:45:48] Speaker 09:
And we think that goes a step too far.

[00:45:51] Speaker 09:
And I think it comes back, Your Honor.

[00:45:52] Speaker 06:
That's not what they did here.

[00:45:56] Speaker 09:
No, but that is the authority that they claim.

[00:45:59] Speaker 09:
And it gets back to the second sentence where they say, we have the authority under the second sentence of 109D1 to do a revision of existing NACS standards without doing a review of air quality criteria at all.

[00:46:13] Speaker 09:
At all?

[00:46:14] Speaker 00:
They didn't say at all.

[00:46:15] Speaker 09:
They do say at all.

[00:46:16] Speaker 09:
41, page 41 to 42 of their brief.

[00:46:19] Speaker 09:
That is a quote.

[00:46:20] Speaker 06:
Where in the record do they say at all?

[00:46:24] Speaker 06:
That may be the lawyers.

[00:46:27] Speaker 08:
This is regarding the criteria, the pre-existing criteria, correct?

[00:46:31] Speaker 08:
Yes, Your Honor.

[00:46:32] Speaker 08:
They don't have to deal with that.

[00:46:33] Speaker 09:
Well, what the statement in the brief is, is that we could revise the existing standards without review of the air quality criteria at all.

[00:46:45] Speaker 08:
That's not going to happen in this case.

[00:46:46] Speaker 08:
Well, if they have new data, why not?

[00:46:51] Speaker 09:
Their assertion is that that is the power

[00:46:54] Speaker 09:
that the second sentence of 109D1 grants them.

[00:46:57] Speaker 06:
In this case, they, in fact, looked at new information.

[00:46:59] Speaker 09:
They looked at some new information.

[00:47:01] Speaker 06:
New criteria.

[00:47:02] Speaker 09:
Yes.

[00:47:02] Speaker 09:
Yes, Your Honor, they did.

[00:47:03] Speaker 06:
But again, we don't have to.

[00:47:05] Speaker 06:
Well, that's fine.

[00:47:06] Speaker 06:
We don't have to say they get everything they want in their brief.

[00:47:09] Speaker 06:
I mean, we're doing statutory construction here.

[00:47:12] Speaker 09:
But where I was going, Your Honor, before is I think it comes back to, and Your Honor, if you

[00:47:16] Speaker 09:
think it's important to consider the continued validity of Chenery.

[00:47:22] Speaker 09:
That is something that I think the parties should brief.

[00:47:24] Speaker 09:
But I think that under established Supreme Court doctrine that this court has followed repeatedly, you have to hold the agency to the reasons that they have chosen, the grounds they have chosen to defend the rule on.

[00:47:36] Speaker 09:
And the ground they have chosen to defend the rule on here is that the second sentence of 1091, that sentence alone,

[00:47:44] Speaker 09:
grants them the power to revise the existing standards at any time without reviewing the air quality criteria at all.

[00:47:52] Speaker 09:
Page 42 of their brief.

[00:47:53] Speaker 09:
That is EPA's position.

[00:47:56] Speaker 09:
Your Honor, I think we've had a very useful and interesting discussion about lots of other potential statutory bases.

[00:48:05] Speaker 09:
I don't think those changed the outcome here, but those are not the bases on which they have relied.

[00:48:10] Speaker 09:
They have not pointed to 109B

[00:48:12] Speaker 09:
as a grant of authority.

[00:48:13] Speaker 09:
They have not tried to rely on the first sentence.

[00:48:17] Speaker 06:
20-something times in their brief, B1.

[00:48:20] Speaker 09:
Yes, but.

[00:48:20] Speaker 06:
Almost as many times.

[00:48:22] Speaker 09:
Agreed, but at page 30, they say, they talk about the second sentence of section 109D1, and they say it is that authority on which EPA, as an initial matter, EPA here exercised the authority of the second sentence of section 7409D1.

[00:48:38] Speaker 09:
That's page 50.

[00:48:40] Speaker 09:
Pages 29 to 30.

[00:48:41] Speaker 09:
The second sentence of Section 7804-09D1 states that EPA may, and then it quotes the language, it was that authority that EPA relied on to revise the PM2.5 standards.

[00:48:52] Speaker 09:
I think they're stuck with the choices that they made.

[00:48:55] Speaker 06:
I'm not sure what we're talking about.

[00:48:56] Speaker 06:
It's the existence of statutory authority, because we also have harmless error.

[00:49:02] Speaker 06:
Right, if one, I know you, let's imagine that the second sentence of B1 said exactly as you want to write it, they have the authority to revise criteria, we'll make it even easier for the purpose of this hypo, whenever they find it reasonably necessary to do so, but they must promulgate it in the same manner, or they must do so in the same manner it originally promulgated.

[00:49:29] Speaker 06:
So it's both authority

[00:49:31] Speaker 06:
It could not be clear that it's both authority and process for you.

[00:49:36] Speaker 06:
And for some reason, they just never cited.

[00:49:39] Speaker 06:
Is it your position, given that we have harmless error analysis and given that we're in a little bit bright world, but it really doesn't matter how they read the statute, your argument is that you want this rule vacated.

[00:49:52] Speaker 09:
Yes, Your Honor.

[00:49:52] Speaker 06:
Absence of statutory authority to be enacted.

[00:49:55] Speaker 06:
Your position is that even under that statute, because I know we have a... Yes, Your Honor.

[00:49:59] Speaker 06:
There's a question about how to read B1.

[00:50:00] Speaker 09:
Your position is that... They are stuck with what they argued.

[00:50:04] Speaker 09:
I have two answers for you on that, Your Honor.

[00:50:06] Speaker 09:
Yeah.

[00:50:07] Speaker 09:
So one, I understand, Your Honor, the theoretical argument as to why Chenery may not be good law after Loper.

[00:50:13] Speaker 09:
I've thought about it myself for some time.

[00:50:16] Speaker 09:
But again, I don't think that... And I think if you want to go there, that would be opening a whole can of worms that I think the parties

[00:50:21] Speaker 09:
should have an opportunity to brief.

[00:50:23] Speaker 09:
But I think as the law currently stands, they are stuck with the statutory authority that they cited.

[00:50:30] Speaker 09:
And then the second argument as to harmless error, Your Honor, the Clean Air Act has its own limitations on harmless error.

[00:50:36] Speaker 09:
3079 says that harmless error under the Clean Air Act is limited to procedural errors and not issues of authority.

[00:50:45] Speaker 09:
So I don't think you can apply that here.

[00:50:48] Speaker 08:
I hesitate to prolong this.

[00:50:53] Speaker 08:
The discussion of the second sentence begins on page 29, where the agency says that basic principle referring back to their argument about reconsideration, inherent authority to reconsider, would provide sufficient authority.

[00:51:08] Speaker 08:
As it did here, EPA has more, and that's the second sentence.

[00:51:16] Speaker 08:
So they're not relying solely on the second sentence.

[00:51:20] Speaker 08:
They could be completely wrong about the second sentence.

[00:51:22] Speaker 08:
And it would not matter if they have this authority to reconsider.

[00:51:25] Speaker 09:
If they have the inherent authority, right, which we didn't get to.

[00:51:28] Speaker 08:
But we spent all this time on the second sentence.

[00:51:29] Speaker 08:
Yes, Your Honor.

[00:51:30] Speaker 08:
And you're trying to pin them on that in the sense of saying that that's what they rely on.

[00:51:34] Speaker 08:
That's their argument.

[00:51:35] Speaker 08:
Well, that's their alternative argument.

[00:51:38] Speaker 09:
So two answers to that, if I may, Your Honor.

[00:51:40] Speaker 09:
The first is they do say that.

[00:51:43] Speaker 09:
But then if you go on, if you turn the page to page 30,

[00:51:46] Speaker 09:
It says, it was that authority that EPA relied on to revise the PM2.5 standards.

[00:51:51] Speaker 09:
So they do make the implicit authority argument.

[00:51:54] Speaker 08:
That doesn't erase their whole discussion of authority to reconsider.

[00:52:00] Speaker 08:
That's fair, Your Honor.

[00:52:01] Speaker 08:
One of which we have not discussed at all, but I think that's probably just as well.

[00:52:06] Speaker 09:
And if I could hear from the agents.

[00:52:08] Speaker 09:
Your Honor, on the implicit authority point, I think American methyl governs.

[00:52:13] Speaker 09:
there, and it says that if you have a congressional statute that is capable of doing essentially what a reconsideration could do, then Congress has displaced that.

[00:52:22] Speaker 08:
That's a fair argument, but we haven't gotten into it.

[00:52:25] Speaker 08:
Thank you, Your Honor.

[00:52:26] Speaker 05:
On your chinery argument real quick, the rule does quote 109B in the opening paragraph, though.

[00:52:33] Speaker 09:
Yes, Your Honor, but it doesn't ever argue that, doesn't make the argument that 109B provides this authority.

[00:52:42] Speaker 09:
And in the briefs, they clearly do not ever make that argument.

[00:52:46] Speaker 09:
And I think that you have to rely on the government's own reading of the decisions that they've made.

[00:52:51] Speaker 06:
But not of the statute.

[00:52:54] Speaker 09:
I think if they've chosen one statutory provision over another.

[00:52:57] Speaker 09:
Oh, not of, yes, not of how to read the statute, of course.

[00:53:00] Speaker 09:
Loper says that that's for this court to determine.

[00:53:03] Speaker 09:
Thank you, Your Honor.

[00:53:04] Speaker 06:
We'll give you some time for rebuttal after all this.

[00:53:25] Speaker 03:
Thank you, Your Honors, and may it please the court, Jacob Abrahamson, for the Commonwealth of Kentucky state petitioners.

[00:53:31] Speaker 03:
And acknowledging it failed to conduct a thorough review here, EPA lays bare the consequences of its interpretation of Section 109D, a major regulatory decision, one that Congress designed to be driven by updated science, is subject to quick reconsideration based on change judgments alone.

[00:53:47] Speaker 03:
I'd like to use the remainder of petitioners' opening time to discuss why EPA failed to justify its decision to revise the NACs after this voluntary reconsideration.

[00:53:56] Speaker 03:
I think the best

[00:53:57] Speaker 03:
Starting point is to work backwards from EPA's decision to place less weight on the uncertainties that were present in 2020 and ask whether that that explanation was reasoned under FCC.

[00:54:12] Speaker 03:
So.

[00:54:17] Speaker 03:
Again, the best starting point is on J237 final rule page 16276.

[00:54:24] Speaker 03:
EPA makes clear that a lot of work is being done by its recognition that there are uncertainties and limitations, but judging that it's appropriate to place less weight on those uncertainties than the then-administrator placed on them.

[00:54:36] Speaker 06:
Because they've got new information.

[00:54:37] Speaker 06:
Would that be unreasonable to – things are rarely perfectly certain in science, so – but if they got new information that reduced uncertainty, would that be unreasonable?

[00:54:48] Speaker 03:
In general, I think the answer is no, that there's a world where new information that reduces uncertainty, it could be reasonable to rely on that information.

[00:54:58] Speaker 06:
And if we read their decision as including that uncertainty had been reduced in a relevant amount, then that would be permissible.

[00:55:08] Speaker 03:
I think under an arbitrary and capricious analysis that yes, it could be permissible, but we're disputing.

[00:55:17] Speaker 06:
So the fight here is whether we read their decision as concluding that uncertainty was reduced in a materially relevant way that warranted a change in standards.

[00:55:27] Speaker 06:
That's what this debate is about?

[00:55:29] Speaker 03:
Yes.

[00:55:30] Speaker 03:
That's right, Your Honor.

[00:55:31] Speaker 03:
And so I think if we look to the specific what new evidence EPA offered and the specific uncertainties that it dealt with, this court can look into whether its explanation was reasonable.

[00:55:42] Speaker 03:
The two pieces of new information

[00:55:45] Speaker 03:
I think are doing the most work are new epidemiological studies that EPA added to its in the supplemental ISA here and new accountability studies.

[00:55:57] Speaker 06:
We also have to start from in 2020 the agency recognizing that it was itself uncertain whether the NAC that it was not setting sticking with retaining was sufficient to protect public health.

[00:56:10] Speaker 06:
So that's the baseline we start from.

[00:56:13] Speaker 06:
That's part of the baseline we're starting.

[00:56:14] Speaker 03:
That's part of the baseline.

[00:56:15] Speaker 06:
We're even unsure in 2020.

[00:56:17] Speaker 06:
I'm sure in the opposite way from what the outcome you want, which is like, we're not sure we should be sitting on the same number, but we're doing it for now.

[00:56:27] Speaker 06:
And then they come along with some more studies that strengthen the concern about health effects, morbidities, cardiovascular consequences.

[00:56:40] Speaker 03:
And I think that- And that was irrational for them to act because- And I think the last part of what you said is where the heart of this debate is, because in 2020, EPA looked at these studies and said that it pointed out that they cannot alone identify specific levels.

[00:56:56] Speaker 03:
There are increasing uncertainties at lower PM2.5 concentrations.

[00:57:01] Speaker 03:
And here in 2024, at JA210, it identified the same basic uncertainties.

[00:57:08] Speaker 03:
And as a way of resolving that,

[00:57:10] Speaker 03:
think it did to look to two places to do most of the work.

[00:57:16] Speaker 03:
That's by adding.

[00:57:17] Speaker 06:
There's no rule to eliminate uncertainty to be reasonable.

[00:57:21] Speaker 06:
That would be if we said that would be impossible.

[00:57:23] Speaker 03:
Yeah, of course not, Your Honor.

[00:57:24] Speaker 06:
I don't think that would be impossible.

[00:57:26] Speaker 06:
So the question is really

[00:57:28] Speaker 03:
shifts the question is whether the uncertainties in 2024 are different than the uncertainties that were present in 2020 and we submit is that the uncertainties here we're not we're not different and that you agree that there were additional studies that.

[00:57:46] Speaker 06:
Whether documented.

[00:57:48] Speaker 06:
the risk and showed that a different NAICS standard, I mean, they potted the whole thing out and found out that a different NAICS, the way they have always calculated which NAICS standard to adopt with the reasonable margin of safety, that they had new dots on the chart.

[00:58:08] Speaker 06:
And that changed which one was now the one from which the referral point for setting the standard.

[00:58:14] Speaker 06:
Well, so haven't attacked that study or any of these studies they considered as irrational or unreasonable or improper considerations.

[00:58:22] Speaker 06:
No, you're out of just just the way that EPA relied on them here in the rely on them in any way that it hasn't always relied on standards and that is on these.

[00:58:29] Speaker 06:
Sorry, excuse me studies.

[00:58:31] Speaker 06:
And that is to gain the information you find reasoned studies.

[00:58:36] Speaker 06:
And you plot out sort of where their numbers are, where these studies are setting, the causal air quality standard, and then they work from the lowest one and sort of round down a little bit.

[00:58:49] Speaker 03:
Well, that's not the approach that EPA took in 2020 because what it is.

[00:58:53] Speaker 06:
I understand that, but that's what they've done every other time.

[00:58:55] Speaker 06:
Yes, but I think that when it's when we're in- And what they've done every time except 2020 when they recognize they were uncertain whether they really should be sticking with the number.

[00:59:06] Speaker 03:
I think that this isn't like every other time because this is a reconsideration and it's not simply, you know, I think when we look to cases like the Mississippi case, I mean, this court has several cases and that are after a thorough NACS review, EPA, I don't want to say a clean slate, but it's certainly working from a new slate and that it's conducted this full thorough review.

[00:59:28] Speaker 03:
And I think this court rightly defers

[00:59:32] Speaker 03:
in that situation and says EPA's obligation when it's simply revising on the schedule that section 1091 sets out doesn't have to also do the work of finding every problem with the last NACs that it set.

[00:59:48] Speaker 03:
But when EPA is revising, I think it does

[00:59:53] Speaker 03:
It doesn't raise the bar, but it requires EPA to answer the question of why what they got wrong the last time around and part of what they wrong.

[01:00:03] Speaker 06:
This is not a question of wrong.

[01:00:04] Speaker 06:
This is a question of we made one decision based on information we have and now we have

[01:00:10] Speaker 06:
new information and that changes decisions.

[01:00:12] Speaker 06:
That doesn't mean the prior one was wrong.

[01:00:14] Speaker 06:
We base it, we base decisions, you know, off and on records presented to us that different records might require different outcomes, but that's just how the system works.

[01:00:22] Speaker 03:
Yeah.

[01:00:23] Speaker 03:
And I thought that was, that was not the, not the right word to use.

[01:00:26] Speaker 03:
I should say that it has to... Outdated.

[01:00:31] Speaker 03:
Outdated or simply

[01:00:33] Speaker 03:
Yeah, outdated is, I think, the right word, Your Honor.

[01:00:37] Speaker 06:
And what EPA did in 2020 was acknowledge... It has to be outdated, or it's just that there's a higher volume of different information?

[01:00:47] Speaker 03:
I think the problem here is that there was not a higher value of different information.

[01:00:51] Speaker 06:
I'm asking the question whether they have to find it was outdated, or they simply have to find that we now have a higher volume of information pointing in another direction.

[01:00:58] Speaker 03:
I think that could be another reason, too.

[01:01:02] Speaker 08:
Sounds like I'll take it.

[01:01:06] Speaker 06:
All right.

[01:01:06] Speaker 06:
Thank you very much.

[01:01:07] Speaker 06:
Thank you, Your Honors.

[01:01:11] Speaker 06:
Otherwise, I'm going to fill out data.

[01:01:27] Speaker 04:
Good morning, Your Honors, and may it please the court, Sarah Buckley for EPA.

[01:01:31] Speaker 04:
I'll be addressing parts one and two of our brief, which encompass EPA's authority to revise the standards as it did here, and its lack of authority to consider costs and related factors.

[01:01:41] Speaker 04:
My colleague, Ms.

[01:01:42] Speaker 04:
St.

[01:01:42] Speaker 04:
Romaine, will then address parts three and four, which encompass the record support for the change.

[01:01:46] Speaker 04:
With us at council table is David Orlen of EPA's Office of General Counsel.

[01:01:51] Speaker 04:
So starting with authority, I think that our disagreement with petitioners boils down to this.

[01:01:56] Speaker 04:
What is subsection D1 meant to do?

[01:01:59] Speaker 04:
In our view, D1 instructs EPA to regularly canvas the science and then to update its criteria and revise its standards consistent with that science.

[01:02:10] Speaker 04:
That's the first sentence.

[01:02:12] Speaker 04:
In the interim, however, if EPA has reason to update its criteria or revise its standards, it certainly may do so.

[01:02:20] Speaker 04:
That's the second.

[01:02:21] Speaker 04:
Hang on.

[01:02:22] Speaker 04:
Yes.

[01:02:23] Speaker 06:
So the second sentence is, you can certainly review and revise your criteria.

[01:02:28] Speaker 06:
But it doesn't say revise standards.

[01:02:30] Speaker 06:
B1 says that.

[01:02:32] Speaker 06:
Can you tell me why I'm wrong to think that you have the authority under B1 to revise standards, as long as you go through the notice and comment rulemaking?

[01:02:41] Speaker 04:
Absolutely, Your Honor.

[01:02:42] Speaker 04:
I think, one, I think you are correct to read B1 as indicating that Congress conferred that authority.

[01:02:47] Speaker 04:
Indicating or stating?

[01:02:48] Speaker 04:
Well, stating, Your Honor.

[01:02:49] Speaker 06:
Those are different things.

[01:02:52] Speaker 06:
Do you think the authority is only implicit?

[01:02:55] Speaker 06:
I don't know.

[01:02:56] Speaker 04:
No, Your Honor.

[01:02:56] Speaker 06:
It may be revised as anything other than authority, but I'm being told that nobody else reads it that way.

[01:03:02] Speaker 04:
No, Your Honor.

[01:03:03] Speaker 04:
I think it's useful to look at that and note that it does state that EPA may revise in the same manner as promulgated.

[01:03:11] Speaker 06:
So if you have authority under sentence two to review and revise criteria and say that disclosed a need to make a change for health purposes,

[01:03:22] Speaker 06:
then you would go to that revision.

[01:03:27] Speaker 04:
You could go to B1, Your Honor.

[01:03:28] Speaker 04:
But I would say EPA's action here is also properly invoking D1.

[01:03:34] Speaker 04:
And I think I'll try to cut right to this promulgate new standards issue.

[01:03:38] Speaker 04:
I think the best way to read what EPA did here in revising the standard was that it was promulgating a new standard.

[01:03:45] Speaker 04:
I think you can see that by looking at the header of D.

[01:03:48] Speaker 04:
which explicitly says it is about reviewing and revision of criteria and standards.

[01:03:54] Speaker 06:
Was that heading part of the statute itself or was it added by the codifiers?

[01:03:57] Speaker 06:
Is it part of the public law?

[01:03:59] Speaker 04:
That is a good question, Your Honor.

[01:04:00] Speaker 04:
I don't have the answer to that, but I'd be happy to follow up on that.

[01:04:06] Speaker 04:
The other way that we know that what EPA did here was

[01:04:10] Speaker 04:
promulgating a new standard in revising the suite of standards that apply to particulate matter is that the former standard, the then operative standard from 2013, still resides in the CFR.

[01:04:22] Speaker 04:
The 2013 standard still is at 40 CFR 50.18.

[01:04:26] Speaker 04:
The new standard for 2024 is at 40 CFR 50.20.

[01:04:31] Speaker 04:
The new standard catalyzes the whole attainment and implementation process.

[01:04:40] Speaker 04:
to meet that new standard.

[01:04:41] Speaker 04:
But the attainment obligations for the old standard remain.

[01:04:46] Speaker 04:
So if any states or localities have not yet attained 2013, they may still have obligations to continue to put control measures directed at that standard, even as they have new obligations about the standard.

[01:04:58] Speaker 08:
So a new standard, as you're using the term, can be just an updated standard.

[01:05:02] Speaker 08:
It doesn't have to be the first time this criteria pollutant has been regulated.

[01:05:06] Speaker 04:
Yes, your honor.

[01:05:07] Speaker 04:
And I think another reason to think that is, again, new standards are governed by subsection A of 109.

[01:05:16] Speaker 04:
And not only are they governed by subsection A of 109, but I think as Mr. Lin pointed out, EPA would have to go through a whole process of 108 to designate air quality criteria for a new pollutant before it could be promulgating an air quality standard for that pollutant.

[01:05:33] Speaker 04:
So I think it's instructive to look back at the statutory history as you were doing Judge Millett and note that, yes, prior to 1977, D1 didn't exist.

[01:05:41] Speaker 04:
We had A and we had B that had that same sentence, such primary standards may be revised in the same manner as promulgated.

[01:05:49] Speaker 04:
So when Congress added D1, what do we think Congress was doing?

[01:05:52] Speaker 06:
There's so much briefing about implicit authority.

[01:05:55] Speaker 06:
I'm just confused then as to why that's all there if reading B1 is explicit.

[01:06:00] Speaker 04:
I think that perhaps all of the parties got a little wrapped around the axle of subsection D because that is the argument that was raised in comments and is raised here.

[01:06:09] Speaker 04:
The argument that we understand petitioners to have been making was that the existence of D displaces authority.

[01:06:15] Speaker 04:
And so we focused our briefing on explaining, no, this is not displacing any authority.

[01:06:20] Speaker 04:
It's not a proper way to read that text.

[01:06:23] Speaker 04:
And also, not only does the first sentence of D1 not displace it, we have the second sentence in there that's Congress saying, don't read the requirement in the first sentence to prohibit your action more frequently as needed.

[01:06:39] Speaker 08:
So you read the second sentence as being essentially

[01:06:42] Speaker 08:
license to proceed without a thorough review.

[01:06:49] Speaker 04:
Yes, Your Honor.

[01:06:50] Speaker 08:
What kind of a review is that?

[01:06:52] Speaker 08:
Somewhere between thorough and slapdash.

[01:06:54] Speaker 08:
What is it?

[01:06:55] Speaker 04:
Right.

[01:06:55] Speaker 04:
I think that it's not fair to characterize what EPA did here or the authority that EPA thinks it has is to be to revise standards in a slapdash fashion.

[01:07:04] Speaker 04:
Perhaps making more concrete what EPA thinks the thorough review is could be helpful.

[01:07:08] Speaker 04:
When EPA undertakes a thorough review, it starts by canvassing all of the databases of scientific literature, searching for evidence on all of the different health effects that are covered in the criteria.

[01:07:21] Speaker 08:
That's just revising a standard without going through a thorough review, then what?

[01:07:25] Speaker 04:
Well, and so then that creates the document, the Integrated Science Assessment.

[01:07:30] Speaker 04:
That's the embodiment of the air quality criteria.

[01:07:33] Speaker 04:
When it then makes a decision whether to revise a standard, it has to go and review that document.

[01:07:39] Speaker 04:
And that's what EPA did here.

[01:07:41] Speaker 04:
The requirement to go review that document is found in 109b-1 itself that says that the standards have to be based on the air quality criteria.

[01:07:50] Speaker 04:
EPA here explicitly said that it was basing its action here on the thorough review of air quality criteria completed in 2020 as supplemented in 2022.

[01:07:59] Speaker 04:
And that's at JA 164 and 173 in the preamble and also in the response to comments at 28th.

[01:08:07] Speaker 08:
So the thorough review took place at the criteria level, right?

[01:08:10] Speaker 04:
Yes.

[01:08:11] Speaker 08:
And the standard derived from that when being revised

[01:08:16] Speaker 08:
can relate back to, can reread, let's say, the criteria document in any new studies without a thorough review of that criteria document.

[01:08:29] Speaker 04:
Yes, Your Honor.

[01:08:30] Speaker 04:
I think a way to think about this is

[01:08:33] Speaker 04:
Every five years, EPA has to publish a new edition of the criteria.

[01:08:37] Speaker 04:
In the interim, if there is a significant new development, say we're talking about a case book and Loper-Bright comes down, you can go in and revise that chapter on Chevron and you don't have to canvas all of the other chapters.

[01:08:48] Speaker 04:
I'm sorry?

[01:08:48] Speaker 04:
This is the pocket part?

[01:08:50] Speaker 04:
This is the pocket part, yes.

[01:08:53] Speaker 04:
Recall back to law school.

[01:08:56] Speaker 04:
And that is what EPA did here.

[01:08:59] Speaker 04:
There was in reviewing and going and initiating a review proceeding to determine whether the standards did indeed meet the health standard of B1.

[01:09:08] Speaker 04:
EPA was aware that there was new science on the health effects that EPA found had the most strong causal linkage to exposure to particulate matter.

[01:09:18] Speaker 04:
And so it did a mini thorough review one might say it went in a canvas that scientific literature or anything new on the mortality and cardiovascular.

[01:09:29] Speaker 08:
That's not a review of the criteria.

[01:09:32] Speaker 04:
It's reviewing the underlying science.

[01:09:35] Speaker 04:
So yes.

[01:09:35] Speaker 04:
So EPA looked back at the record, said, we're not sure that this standard is requisite to protect public health as an adequate margin of safety.

[01:09:44] Speaker 04:
We would like to initiate a proceeding to potentially reconsider that.

[01:09:49] Speaker 04:
At the outset of that proceeding, EPA said, well, our air quality criteria and our 2020 policy decision to retain

[01:09:57] Speaker 04:
really turned on these particular health effects.

[01:10:00] Speaker 04:
And we've been told by petitioners who have filed petitions for reconsideration that there's new studies on this very important health effect.

[01:10:09] Speaker 08:
Reconsideration was of the criteria document, not of the standard?

[01:10:16] Speaker 04:
I suppose it was a reconsideration of the standard.

[01:10:18] Speaker 04:
And in the course of that proceeding, the criteria document was revised by the issuance of the supplement.

[01:10:25] Speaker 04:
Yes, Your Honor.

[01:10:26] Speaker 04:
And EPA focused its review on those health effects.

[01:10:29] Speaker 04:
What's the difference between reconsideration and revised?

[01:10:34] Speaker 04:
I don't think there is a difference, Your Honor.

[01:10:36] Speaker 04:
I think that if, again, we're getting really stuck on this term, reconsideration, as if it comes with technical meaning.

[01:10:42] Speaker 04:
And I'm not sure that it does.

[01:10:43] Speaker 04:
If EPA had said, we're going to look back at our decision, determine whether it's meetings.

[01:10:49] Speaker 04:
Review instead of reconsideration.

[01:10:50] Speaker 04:
Review.

[01:10:51] Speaker 06:
You do have the authority to review.

[01:10:53] Speaker 06:
Yes, Your Honor.

[01:10:53] Speaker 06:
Is there a difference between review and reconsider?

[01:10:56] Speaker 06:
If you're going to do review and revise somewhere in there, you after you review it and you decide to reconsider by revising it.

[01:11:04] Speaker 04:
Right.

[01:11:05] Speaker 08:
I think that put another dog on the table when you talked about reconsideration, which is neither review nor revise.

[01:11:14] Speaker 04:
I suppose that it is a different word, Your Honor, but it results in the same proceeding as reviewing and then revising.

[01:11:22] Speaker 04:
Again, I don't think that putting a lot of technical import review and revise is a word for review and revise umbrella word.

[01:11:31] Speaker 04:
I think it's an umbrella word for EPA believing that a decision may have been wrong and wanting to begin.

[01:11:40] Speaker 06:
I mean, the only way they're going to figure out is wrong.

[01:11:41] Speaker 06:
They got to go back and review exactly.

[01:11:43] Speaker 06:
And that review presumably will inform the decision.

[01:11:47] Speaker 06:
Revise.

[01:11:48] Speaker 06:
Yes.

[01:11:48] Speaker 06:
And so together, that's just how courts think about reconsideration.

[01:11:53] Speaker 06:
Yes.

[01:11:55] Speaker 06:
I think that's spot on.

[01:11:56] Speaker 06:
Umbrella term for review and revise.

[01:11:59] Speaker 06:
I'm trying to figure out whether you're claiming an additional power or whether it's just you're using it as an umbrella term for review and revise.

[01:12:06] Speaker 04:
Using an umbrella term, Your Honor.

[01:12:07] Speaker 04:
Not claiming an independent power here.

[01:12:10] Speaker 04:
The power is all derived from 109.

[01:12:12] Speaker 06:
You don't think there's anything more than review and revise?

[01:12:15] Speaker 05:
No, Your Honor.

[01:12:17] Speaker 05:
Then the distinction between promulgating new standards and revising existing standards.

[01:12:22] Speaker 05:
What is your distinction here?

[01:12:24] Speaker 04:
I don't have a black and white answer on that.

[01:12:26] Speaker 04:
And obviously, a lawyer never wants to say that the presumption of servitude is just a presumption.

[01:12:33] Speaker 04:
But I don't see anywhere else in the statute that Congress has given different import to revised standards versus promulgate new standards.

[01:12:41] Speaker 04:
It could be that a more minor change to standards would constitute a revision, and a more significant change would constitute new standards.

[01:12:50] Speaker 04:
But again, I think here the best way to look at what EPA did was it created a new standard that states now have to comply with, that states now have to develop plans to implement after attainment designations are made.

[01:13:02] Speaker 06:
Is there a difference between describing it that way and saying you revised the existing standard?

[01:13:07] Speaker 06:
Is there any, what's the difference between saying we created a new standard and we revised the existing standard to increase the obligation?

[01:13:18] Speaker 04:
Beyond that word, Your Honor, I don't think there is.

[01:13:20] Speaker 04:
I suppose EPA could have, but notably did not hear, actually reach back into that CFR and nung pro-tunk change the standard that was applicable at some earlier point.

[01:13:33] Speaker 04:
But that's not what EPA did here.

[01:13:35] Speaker 04:
The standard is applicable starting in.

[01:13:37] Speaker 06:
I don't think there's any arguments that this is a forward-looking rule that was a whole different problem.

[01:13:43] Speaker 05:
And you've given consideration before to actually revising standards, but have you used the word reconsideration during those times?

[01:13:52] Speaker 04:
In previous proceedings, EPA has announced that it would reconsider standards, although it has never finalized a reconsideration by revising.

[01:14:04] Speaker 04:
It has, however, frequently

[01:14:06] Speaker 04:
reopened air quality criteria, and then revised the air quality criteria.

[01:14:11] Speaker 05:
And the point of my question is to think about the consistency of your term, just as a through line through prior practices.

[01:14:18] Speaker 04:
Right.

[01:14:20] Speaker 04:
Right.

[01:14:20] Speaker 04:
EPA has consistently used the term reconsideration not to have some independent meeting, but to prompt or invoke its authority a proceeding under 109B109D.

[01:14:32] Speaker 04:
That's helpful.

[01:14:35] Speaker 08:
I'm going to ask a question which I've never asked in 38 years on the bench, but I'm driven to it by despair.

[01:14:43] Speaker 08:
Is there any legislative history on this?

[01:14:47] Speaker 04:
There certainly is, Your Honor.

[01:14:50] Speaker 04:
Not very lengthy, but I will say this.

[01:14:53] Speaker 04:
Initially, 109D1 was in the House bill that became the 1977 amendments.

[01:15:00] Speaker 04:
The House bill's version, which petitioners cite in a footnote of their brief, actually called for a review and revision every two years.

[01:15:09] Speaker 04:
In the conference, though, the Senate didn't have a comparable version.

[01:15:12] Speaker 04:
In the conference, the Senate stated the following, or the conference report states the following.

[01:15:17] Speaker 04:
The Senate concurs in the House amendments with the following modification.

[01:15:20] Speaker 04:
The first review shall be completed in 1980.

[01:15:25] Speaker 04:
Subsequent reviews are required every five years.

[01:15:28] Speaker 04:
But the administrators authorized to conduct review of existing ambient standards more frequently than every five years.

[01:15:35] Speaker 04:
and is expected to revise standards whenever available information justifies a revision.

[01:15:41] Speaker 08:
More coherent than the statute.

[01:15:44] Speaker 04:
Indeed.

[01:15:44] Speaker 04:
And honestly, Your Honor, the fact that that second sentence was added in the conference might also explain this disconnect between the revision.

[01:15:53] Speaker 08:
It's a mess.

[01:15:53] Speaker 04:
Yes.

[01:15:54] Speaker 04:
I think what that shows is that the House was pushing towards very frequent updates and reviews, again, to make sure that these standards are doing their job of focusing our regulatory efforts at protecting public health.

[01:16:07] Speaker 04:
The Senate said, we can slow that down, but we are not trying to displace EPA's ability to respond to new information and ensure that our standards are meeting the public health standards set out in B1.

[01:16:19] Speaker 06:
Is there legislative history for the second sentence in B1?

[01:16:24] Speaker 04:
Not that I'm aware of, Your Honor.

[01:16:32] Speaker 04:
I'd like to just quickly address the costs argument and note that the cost argument and the attainability argument is really focused on this idea that there is an analytical distinction between a decision whether to revise the standard and what level to revise the standards to.

[01:16:49] Speaker 04:
And I think that analytical distinction is a mirage, because if you're ever considering whether to retain a standard, you're necessarily asking yourself the question, is this standard meeting the statutory standard?

[01:17:01] Speaker 04:
Is this standard requisite to protect public health with an adequate margin of safety?

[01:17:06] Speaker 04:
And at that point, you're considering the level of the standard, and you're engaged in precisely the forbidden exercise that

[01:17:14] Speaker 04:
the precedents of this court and the Supreme Court have said that we can't do.

[01:17:18] Speaker 04:
And besides that, I'll note that this court in American Trucking Association 1 recognized that there is no analytical distinction between a promulgation of standards under B-1 or D-1.

[01:17:29] Speaker 08:
A grounds on which we were not reversed.

[01:17:33] Speaker 04:
Exactly, Your Honor.

[01:17:35] Speaker 06:
My colleagues have no further questions.

[01:17:38] Speaker 06:
Thank you.

[01:17:39] Speaker 06:
I'll turn the podium over to St.

[01:17:40] Speaker 06:
Germain.

[01:17:52] Speaker 01:
Good morning, Your Honors, and may it please the court, Alex St.

[01:17:54] Speaker 01:
Romaine on behalf of EPA.

[01:17:56] Speaker 01:
Today, I will address petitioners' record-based arguments covered in sections three and four of our brief.

[01:18:03] Speaker 01:
So at issue today is whether the EPA administrator reasonably determined that a nine microgram per cubic meter standard for primary annual PM 2.5 was requisite to protect the public health.

[01:18:15] Speaker 01:
And the answer to that question is a resounding yes.

[01:18:19] Speaker 01:
The at-issue criteria, which is comprised of both the 2019 science assessment and the 2022 supplement, demonstrate consistently strong linkages between PM2.5 concentrations well below 12 micrograms per cubic meter and negative health effects, like mortality, cardiovascular effects, respiratory effects, cancer, and nervous system effects.

[01:18:44] Speaker 06:
Why did the agency choose not to look at some other health effects, like on reproductive?

[01:18:49] Speaker 01:
Yeah, the reason the agency chose to limit the health effects it was looking at in the 2022 supplement is that it looked at the health effects that drove the EPA's staff level conclusion in 2019, which was a conclusion that the science called into question the adequacy of the standard.

[01:19:08] Speaker 01:
The health effects that EPA focused on were those where EPA had the strongest evidence that there was a clear linkage between those health effects

[01:19:17] Speaker 01:
and PM 2.5 concentration and other health effects like respiratory effects, the linkage between PM 2.5 exposure and those health effects is a bit weaker.

[01:19:27] Speaker 05:
Do we need to resolve that the science has actually changed in order for you to get to a revision?

[01:19:36] Speaker 01:
No, Your Honor.

[01:19:37] Speaker 01:
And that's for two reasons.

[01:19:39] Speaker 01:
First is that the statute says that whether a standard is requisite to protect the public health with an adequate margin of safety is left to the determination that's left to the judgment of the administrator.

[01:19:51] Speaker 01:
And that means that different administrators could reach different conclusions based on the same evidence.

[01:19:56] Speaker 01:
And that is aligned with this court's conclusions in Mississippi and in Murray Energy.

[01:20:02] Speaker 01:
In those cases, petitioners were arguing that there was a presumption of validity given to EPA's past standards.

[01:20:09] Speaker 01:
And this court rejected that presumption and explained that such a presumption would result in a situation where EPA is bound by flaws or errors in past standards.

[01:20:18] Speaker 01:
And instead, the question before the court is the one I started with today, is EPA's decision here reasonable?

[01:20:24] Speaker 01:
Now, I will say that this wasn't a situation where EPA was just looking at the same record and reaching a completely different result.

[01:20:33] Speaker 01:
EPA explained that there were clear differences between the 2020 record and here that prompted its decision to revise the standard.

[01:20:44] Speaker 01:
EPA explained, and this is at J237 in the preamble, how uncertainties changed.

[01:20:50] Speaker 01:
And the fact that uncertainties changed decreased the magnitude of uncertainties and increased the administrator's confidence in the results of the epidemiologic studies.

[01:21:02] Speaker 01:
The uncertainties changed in two main ways.

[01:21:05] Speaker 01:
So first, there were additional studies that controlled for confounding factors.

[01:21:13] Speaker 01:
These studies that controls for confounding factors, they, so let's use, actually sorry, let's use an example because I think this is particularly helpful.

[01:21:26] Speaker 01:
So one health effect that has a strong linkage to PM2.5 exposures, cardiovascular effects,

[01:21:32] Speaker 01:
But we all know that cardiovascular effects like heart attacks can cause because of can be caused by PM 2.5 concentration or can be caused by lifestyles smoking underlying health conditions.

[01:21:45] Speaker 01:
These new studies in the 2022 supplement controlled for those confounding factors took them into consideration.

[01:21:51] Speaker 01:
and still showed very strong linkages between PM2.5 concentrations and cardiovascular effects like heart attacks.

[01:21:59] Speaker 01:
And that gave the administrator confidence, the administrator explained, in the results of the epidemiologic studies.

[01:22:07] Speaker 01:
Another big change between this record and the 2022 supplement and the 2019 criteria document were the addition of new accountability studies.

[01:22:18] Speaker 01:
Now, accountability studies are those studies that look at a policy intervention that decreases PM2.5 concentrations.

[01:22:26] Speaker 01:
to see if PM2.5 associated health effects also decrease.

[01:22:30] Speaker 01:
We provided an example in our brief of replacing manual toll booths with EDPAS toll booths.

[01:22:36] Speaker 01:
But to provide an example that was in the 2022 supplement, there was one study that looked at the effect of retiring power plants.

[01:22:45] Speaker 01:
And this study showed that when the power plants retired, PM2.5 concentrations in that area

[01:22:52] Speaker 01:
decreased from around 10 micrograms to around 7 micrograms.

[01:22:56] Speaker 01:
And with that decrease, there was also a decrease in hospitalizations resulting from cardiovascular illness.

[01:23:04] Speaker 01:
So again, these sorts of studies gave the administrator more confidence in the results of the epidemiologic studies.

[01:23:11] Speaker 05:
Just thinking about a question asked of your co-counsel earlier, EPA has revised criteria off cycle, but then chose not to revise the standards.

[01:23:22] Speaker 05:
What's the reason for that?

[01:23:24] Speaker 01:
You know, I think that ultimately what that tells us is that EPA's decision to reopen criteria and consider whether it's appropriate to revise standards is not predetermined.

[01:23:38] Speaker 01:
EPA, as we note at page 80 of our brief, on at least half a dozen occasions since the Cleaner Act was amended, EPA has gone about reopening the criteria in the exact same manner as it did here for the exact same reasons.

[01:23:51] Speaker 01:
It's presented with

[01:23:52] Speaker 01:
new information that's sufficiently important to the administrator's determination of whether the current standard is requisite to protect the public health.

[01:24:03] Speaker 01:
And the administrator reopens the criteria or the EPA reopens the criteria so that KSAC, the public, and ultimately the administrator can consider that new science in determining whether the standard is in fact requisite to protect the public health.

[01:24:21] Speaker 06:
Have you done a thorough review on those cases?

[01:24:24] Speaker 01:
In most of those cases, EPA has recently done a thorough review or is in the middle of a thorough review and has completed its criteria document.

[01:24:38] Speaker 01:
So in those cases, they're really aligned with this case where EPA just reviewed all of the relevant science but has presented with new, particularly important science that it thinks it should consider in determining whether the standard is requisite.

[01:24:55] Speaker 01:
I see my time is up.

[01:24:59] Speaker 01:
In some EPA's decision to revise the primary annual PM 2.5 standard to nine micrograms was reasonable and supported by the robust record evidence.

[01:25:08] Speaker 01:
For this reason and those discussed in our brief, we respectfully request that you deny the petitions for review.

[01:25:13] Speaker 01:
Thank you.

[01:25:17] Speaker 06:
Mr. Linds, you're doing a rebuttal for both petitioners and we'll give you three minutes to

[01:25:24] Speaker 06:
Your honor, I think I still apologize.

[01:25:26] Speaker 06:
I'm sorry.

[01:25:28] Speaker 06:
I apologize.

[01:25:32] Speaker 06:
Thank you.

[01:25:42] Speaker 07:
Good morning, your honors.

[01:25:43] Speaker 07:
Jonathan Weiner for state intervenors.

[01:25:46] Speaker 07:
like to take a step back and try to address the dogs on the table or some of them maybe I misheard yes the the issue of yeah of what we are calling what EPA did here I think

[01:26:05] Speaker 07:
The easiest way of thinking about it is what EPA reconsidered is its decision in 2020 to leave the standards in place, then revised the PMNAC's standards generally, and did so by setting a new standard, as co-counsel explained.

[01:26:26] Speaker 07:
Whatever

[01:26:27] Speaker 07:
term we are using, EPA has authority to do that, to take the action that it took here.

[01:26:34] Speaker 07:
And it's well recognized, EPA has reconsideration authority for its Clean Air Act rules, as this court said in Clean Air Council.

[01:26:44] Speaker 07:
109b makes clear that EPA has authority to revise NACS standards and 109d makes clear that it has authority to promulgate new standards.

[01:26:56] Speaker 07:
Section 109d is not a roadblock to what EPA did here and I think there's been a lot of discussion about that.

[01:27:05] Speaker 07:
I just wanted to point out one more

[01:27:07] Speaker 07:
I think important textual reason that's true, and that's the word and in the first sentence.

[01:27:15] Speaker 07:
So when the court, sorry, when the thorough, when EPA is conducting a thorough review required by the first sentence, it's a thorough review of criteria and standards together.

[01:27:28] Speaker 07:
The second sentence does not say any criteria and standards.

[01:27:32] Speaker 07:
It says review and revised criteria or promulgate new standards.

[01:27:36] Speaker 07:
So what that means is that EPA can promulgate a new standard without reopening every aspect of the criteria, including aspects of the criteria that may not be relevant to the standard in question.

[01:27:54] Speaker 07:
And I do want to point out that this is not, what EPA has done here is not novel.

[01:28:01] Speaker 07:
It has reconsidered its NACS standards in the past.

[01:28:05] Speaker 07:
We pointed out some examples in our brief.

[01:28:10] Speaker 07:
This is not unlimited.

[01:28:12] Speaker 07:
EPA cannot ignore the previous criteria when it is setting a new standard.

[01:28:17] Speaker 07:
It has to look at them.

[01:28:18] Speaker 07:
And I want to provide a couple of quick citations to examples from the 2020 record that made

[01:28:30] Speaker 07:
we think made clear that EPA needed to reconsider.

[01:28:34] Speaker 07:
And that's the policy assessment from 2020 and the independent particular matter review panel.

[01:28:43] Speaker 07:
And I think the last thing I wanted to point out is that there is no chenery problem here.

[01:28:50] Speaker 07:
And that's because whatever we are calling what EPA did, EPA has relied on all of these authorities.

[01:29:00] Speaker 07:
in its rulemaking.

[01:29:04] Speaker 07:
And if I can just point out some places in the JA, 2797 and 2801, this is in the response to comments document.

[01:29:13] Speaker 07:
EPA relies on its general and implicit authority to revise NACS standards.

[01:29:23] Speaker 07:
In the same document at JA2799, it invokes 109B for authority to revise NACS standards.

[01:29:31] Speaker 05:
What about the state's reliance interests?

[01:29:34] Speaker 05:
Does that five-year cycle just kind of generally intend that they expect that there will be no revisions?

[01:29:41] Speaker 07:
That's EPA's position.

[01:29:43] Speaker 07:
I don't think you need to reach that here because the petitioners haven't identified any reliance interests tied to the 2020 decision.

[01:29:53] Speaker 07:
And under the Solonix case, EPA is not required to review those.

[01:30:01] Speaker 05:
And then what's your position with the harmless error argument?

[01:30:04] Speaker 05:
Because you had that as kind of an independent argument.

[01:30:06] Speaker 07:
I think there are a couple different harmless errors that this court can rule on.

[01:30:09] Speaker 07:
Do we need to reach it?

[01:30:12] Speaker 07:
No, I don't think you need to reach the argument that is in our brief that the

[01:30:18] Speaker 07:
Basically had EPA said petition granted somewhere in its preamble about our petitions for reconsideration that all this would be beside the point because everything would have turned out the same.

[01:30:33] Speaker 07:
You don't need to address that.

[01:30:34] Speaker 07:
There are plenty of other harmless errors here that

[01:30:37] Speaker 07:
uh, have already been discussed, including that petitions had many, many opportunities to point to things that EPA didn't look at or, uh, you know, should have considered and didn't, uh, there are many notice and comment opportunities.

[01:30:51] Speaker 07:
There were, and, and in the briefing, uh, in the comments and today, nobody has said there was something that EPA missed or something that EPA ignored that would have changed the outcome.

[01:31:04] Speaker 07:
And,

[01:31:05] Speaker 07:
Again, whatever EPA called what it was doing here, it had authority to do it.

[01:31:10] Speaker 07:
So take your pick of the harmless areas, I think.

[01:31:17] Speaker 06:
Thank you very much, Council.

[01:31:18] Speaker 06:
I apologize.

[01:31:20] Speaker 07:
Thank you.

[01:31:20] Speaker 06:
Now, Mr. Lin, you may have three minutes.

[01:31:25] Speaker 06:
Can I ask, is counsel correct that when you say you're concerned about their limiting, counsel is concerned about the agency not doing a thorough review that they've left some science out, do you have anything they left out that's been harmful?

[01:31:44] Speaker 06:
Or this is really that you wanted them to do the first dig?

[01:31:49] Speaker 09:
Sure.

[01:31:49] Speaker 09:
So I can point you to a couple studies.

[01:31:55] Speaker 09:
I could just find it in my notes.

[01:31:59] Speaker 06:
Submitted in the record?

[01:32:01] Speaker 09:
It's not in the JA, but it is in the underlying agency record.

[01:32:05] Speaker 09:
OK.

[01:32:07] Speaker 09:
And so if you look at the gradient comments, I can read you the site.

[01:32:14] Speaker 09:
You probably need it.

[01:32:14] Speaker 09:
It's EPAHQORD.

[01:32:18] Speaker 09:
And there's a bunch of numbers.

[01:32:19] Speaker 09:
20140859.

[01:32:24] Speaker 09:
0077.

[01:32:26] Speaker 09:
At page six, two studies were discussed, the Goodman study and the Zoo study, in response to the draft ISA supplement.

[01:32:37] Speaker 09:
There was no response to those studies as to why they didn't consider them.

[01:32:42] Speaker 09:
Now, we don't think, Your Honor, that- I didn't argue those in your brief here.

[01:32:48] Speaker 06:
Those haven't been raised by anything?

[01:32:49] Speaker 09:
We didn't point to those specifically.

[01:32:51] Speaker 06:
Any of the petitioners?

[01:32:52] Speaker 09:
No, not in the briefs.

[01:32:53] Speaker 09:
And the reason is because we don't, as we've discussed already, Your Honor, we don't think that there should be a prejudice or harmless error analysis here, both because 3079 doesn't permit it.

[01:33:05] Speaker 09:
You can only look at procedural harmless errors, but also because, as we've discussed,

[01:33:10] Speaker 09:
The authority that they claim here is not, again, they're not saying, we acted under the first sentence.

[01:33:16] Speaker 09:
We were required to do a thorough review.

[01:33:19] Speaker 09:
What we did was good enough to survive arbitrary and capricious.

[01:33:21] Speaker 09:
Their argument is, we didn't have to do it at all.

[01:33:24] Speaker 09:
That's the question that's before this court.

[01:33:26] Speaker 09:
I did have a couple quick points that I wanted to get to.

[01:33:29] Speaker 09:
I think the first is that my friend from the government's argument eviscerates the distinction between revising existing standards and promulgating new standards.

[01:33:39] Speaker 09:
I don't think she offered an example of what revising an existing standard would be.

[01:33:44] Speaker 09:
I think under her argument, everything would be promulgating new standards.

[01:33:48] Speaker 09:
If you look at section 109, it uses the two different words to talk about two different things.

[01:33:56] Speaker 09:
Promulgation is always used with respect to new standards for pollutants that don't already have a standard.

[01:34:03] Speaker 09:
That's 109A.

[01:34:05] Speaker 09:
That's, your honor, the 109B that we've talked about, right, which it says, may revise in a manner that is the same as the standard was promulgated.

[01:34:12] Speaker 09:
Those words have to have meaning.

[01:34:14] Speaker 09:
They're different words.

[01:34:15] Speaker 09:
The second point I wanted to make, I'm sorry.

[01:34:19] Speaker 06:
I will let you make your second point, I promise.

[01:34:20] Speaker 06:
But do we know if promulgate new standards is used elsewhere in the K-NARAC?

[01:34:26] Speaker 06:
Or is this really the only place we would look at for what it is?

[01:34:29] Speaker 09:
I don't know that off the top of my head, but I do think, I mean, I think when it says not only promulgate, it says promulgate new standards.

[01:34:35] Speaker 09:
I think it might be different if it just said promulgate standards.

[01:34:38] Speaker 09:
But it specifically says promulgate new standards.

[01:34:40] Speaker 06:
I'm sorry.

[01:34:41] Speaker 09:
Your second point.

[01:34:42] Speaker 09:
So I had just three really quick points.

[01:34:44] Speaker 09:
The second is that, Your Honor, you extended the invitation to the government to rely on B1.

[01:34:49] Speaker 09:
I don't think she accepted it or pointed to a place in the record where they made that argument.

[01:34:53] Speaker 09:
They are relying on D1 and implicit authority, Judge Ginsburg, for what they have done here.

[01:34:59] Speaker 09:
And I don't think either of those holds up.

[01:35:01] Speaker 09:
On the question of whether to reconsider and how to reconsider as to whether that's a mirage

[01:35:08] Speaker 09:
I don't think it's a mirage to say that there's two different steps in a reconsideration.

[01:35:14] Speaker 09:
I think just as an example, if you look at 307 D7, which is the standard in the Clean Air Act for mandatory reconsideration, that sets forth specific things that you look at to determine whether to reconsider.

[01:35:28] Speaker 09:
And then as this court recognized in Clean Air Act,

[01:35:30] Speaker 09:
Clean Air Council versus Pruitt, it's a separate question as to how you reconsider.

[01:35:34] Speaker 09:
So I don't think that we have a debate over whether costs should go into the first part or not.

[01:35:40] Speaker 09:
But I think the principle that there's a distinct, that there's a two-step process, I don't think that that's made up.

[01:35:45] Speaker 09:
And then finally, Judge Ginsburg,

[01:35:47] Speaker 09:
on the legislative history, there's very little.

[01:35:49] Speaker 09:
And as my friend pointed out, I do think it's ambiguous at best.

[01:35:53] Speaker 09:
I mean, it says that they should revise as justified, but that doesn't address whether the thorough review requirement applies before you do the revision.

[01:36:06] Speaker 06:
Thank you very much.