[00:00:00] Speaker 02: Case number 23-1347, Food Marketplace Inc. [00:00:05] Speaker 02: et al. [00:00:05] Speaker 02: Petitioners versus Environmental Protection Agency and Michael S. Reagan in his official capacity as Administrator, United States Environmental Protection Agency. [00:00:15] Speaker 02: Mr. Lin for the petitioners, Mr. Martin for the respondents. [00:00:20] Speaker 05: Good morning, Council. [00:00:21] Speaker 05: Mr. Lin, please proceed when you're ready. [00:00:27] Speaker 03: Good morning, Mr. Chief Judge and my place in the court. [00:00:30] Speaker 03: Albert Lam on behalf of the Petition of Food Industry Associations. [00:00:33] Speaker 03: And if I may, I'd like to reserve three minutes of rebuttal. [00:00:37] Speaker 03: The associations fully support the policies behind the AIM Act, and there is much in the rule that we do not challenge. [00:00:43] Speaker 03: But the aggressive deadlines EPA has set for the refrigeration and HVAC sectors make compliance virtually impossible, which is a reflection of the fact that several key premises are legally wrong or unexplained. [00:00:55] Speaker 03: I'd like to focus on three this morning. [00:00:58] Speaker 03: The first is that EPA's interpretation of the term availability is inconsistent with the plain meaning of that word. [00:01:04] Speaker 03: Rather than ready to use, EPA's interpretation is more like maybe possibly ready. [00:01:09] Speaker 03: EPA now says it agrees with that definition, but that's not what it said in the rule. [00:01:15] Speaker 03: The second error is a failure to explain under the Supreme Court's recent Ohio versus EPA decision. [00:01:21] Speaker 03: Just as in Ohio, EPA here promulgated a rule premised on certain assumptions being true. [00:01:27] Speaker 03: In Ohio, it was the number and identity of states. [00:01:31] Speaker 03: Here, it is the number of an identity of substitutes. [00:01:34] Speaker 03: Ohio holds that even accepting those assumptions and predictions are adequately explained. [00:01:42] Speaker 03: An agency must anticipate and address what would happen in the event that certain of those assumptions don't pan out in reality. [00:01:48] Speaker 03: EPA did not do so in Ohio, and it did not do so here. [00:01:52] Speaker 03: And finally, our third issue is that if you actually dig into them, some of EPA's predictions in every subsector are underexplained. [00:02:00] Speaker 03: And that is an independent problem that undermines the rule under the Maryland, DC, Delaware broadcasters case. [00:02:06] Speaker 04: Let's start with your legal [00:02:10] Speaker 04: Yes, Your Honor. [00:02:12] Speaker 04: I'm just very puzzled at what the dispute actually is at this point. [00:02:19] Speaker 04: I can imagine a focused legal argument about whether availability is assessed at the time of compliance or at some earlier point that gives you lead time. [00:02:36] Speaker 04: I can imagine a focused legal dispute about whether all or some of the sub-factors must be satisfied. [00:02:46] Speaker 04: You gave up both those arguments. [00:02:49] Speaker 04: You affirmatively gave up both of those in your reply brief. [00:02:52] Speaker 04: You invoke a dictionary definition of plain meaning, which EPA doesn't really contest. [00:03:02] Speaker 04: So what are we fighting about at this point on the interpretive question? [00:03:06] Speaker 03: Of course, Your Honor. [00:03:06] Speaker 03: So two answers that I thought you were going in a different direction. [00:03:09] Speaker 03: Let me start with where I think you ended, which is that EPA doesn't contest that the plain meaning is ready to use. [00:03:16] Speaker 03: I think the problem for them is that that's not what they said in the rule. [00:03:19] Speaker 03: They said in the rule that- Press and are ready for immediate use at the compliance date. [00:03:26] Speaker 03: Correct. [00:03:27] Speaker 03: Yes. [00:03:28] Speaker 03: And that's not what they said in the rule. [00:03:30] Speaker 03: What they said in the rule is that they understood availability [00:03:35] Speaker 03: based on the considered substitutes available, based on the expectation that many of the sub-factors could feasibly be met. [00:03:43] Speaker 03: We don't think that that's the same thing as ready to use. [00:03:46] Speaker 03: Your Honor, I think you will search in vain in the rule for the phrase ready to use, or Judge Cassis, as you said, immediately available, immediately obtainable at the time of compliance. [00:03:57] Speaker 03: They don't say that. [00:03:58] Speaker 04: So you're fussing over the wiggle room [00:04:02] Speaker 04: introduced by the word expects, the word many, and the word feasibly? [00:04:08] Speaker 03: Could feasibly. [00:04:09] Speaker 03: Could feasibly. [00:04:10] Speaker 03: Could I give you an example as to why? [00:04:12] Speaker 03: Here's why I think it matters. [00:04:14] Speaker 03: I think it's one thing if I were to predict. [00:04:17] Speaker 03: Because the definition of availability is which they are making their predictions against. [00:04:21] Speaker 03: So if I were to say, Your Honor, I think you will win this race against this Olympic champion. [00:04:28] Speaker 03: There is a certain number of things that you would expect me to say to justify that. [00:04:33] Speaker 03: I think it would be actually perhaps impossible for me to rationally justify it. [00:04:37] Speaker 03: But if I said you could feasibly win this race against an Olympic champion, or you may possibly win this race, there is a lot of other explanations that I could provide, including that I think it's possible that the Olympic champion would trip and fall, and you would finish first. [00:04:52] Speaker 03: That's why the distinction matters. [00:04:54] Speaker 03: ready for use at the time of compliance requires more explanation or qualitatively different kind of explanation than does what they said in the rule. [00:05:08] Speaker 04: So that expects just, to my ear, expects just connotes the truism that [00:05:19] Speaker 04: if the relevant time for assessing this is the effective date of the rule, by definition, they're making a predictive judgment. [00:05:28] Speaker 04: Of course not. [00:05:30] Speaker 04: You can't observe a fact about the world. [00:05:32] Speaker 04: Correct. [00:05:32] Speaker 04: So prediction is expectation. [00:05:34] Speaker 04: Correct. [00:05:34] Speaker 04: That seems the truest. [00:05:36] Speaker 04: Yes, we are not taking issue with the word expires. [00:05:38] Speaker 04: Many sub-factors is just the question I pointed out earlier that you affirmatively gave up. [00:05:47] Speaker 04: You could fight over [00:05:49] Speaker 04: whether some of the subfactors are necessary elements. [00:05:51] Speaker 04: You've given that up. [00:05:52] Speaker 04: So the many doesn't really help you. [00:05:56] Speaker 04: So we're just fighting over gradations, connoted by the word feasibly. [00:06:04] Speaker 03: And the word could. [00:06:06] Speaker 03: Could feasibly. [00:06:07] Speaker 03: I think could feasibly, again, encapsulates an indeterminacy that is very different from will be ready for use at the time of compliance. [00:06:18] Speaker 03: And again, I think hopefully my example was helpful to you. [00:06:21] Speaker 03: We can come up with other ones if we would like. [00:06:24] Speaker 03: But I think there is a difference between predicting that something with certainty and I think ready for use [00:06:32] Speaker 03: encapsulates 100% or something very close to 100% certainty. [00:06:36] Speaker 03: Again, that's not saying that a prediction will necessarily come true. [00:06:39] Speaker 03: And that raises an Ohio versus EPA problem. [00:06:41] Speaker 03: But the issue here is that the backdrop against which they're making their predictions, which then sets how you do the arbitrary and capricious review, what you expect of them to say, is fundamentally wrong. [00:06:54] Speaker 03: And I think there's a material difference there. [00:06:57] Speaker 03: So that's the first point is the word availability. [00:07:00] Speaker 03: And I think it is particularly telling, Your Honor, that my friend in his brief doesn't even attempt to defend could feasibly be met. [00:07:07] Speaker 03: He doesn't cite it. [00:07:09] Speaker 03: He doesn't talk about it. [00:07:10] Speaker 03: He doesn't try to distinguish it. [00:07:12] Speaker 03: He just says, I agree that ready for use is demeaning. [00:07:15] Speaker 03: And so I think on that ground, because that affects everything else that follows. [00:07:20] Speaker 03: This court could could vacate the deadlines that we have. [00:07:23] Speaker 05: Can I just ask you that there's a strict preservation requirement in the statute for this interpretive question? [00:07:29] Speaker 05: Was that put before the agency? [00:07:31] Speaker 03: Your Honor, this specific argument was not raised, and I want to be candid with you about that. [00:07:37] Speaker 03: But I do think for two reasons. [00:07:39] Speaker 03: One, I think under the Appalachian Power case that the Supreme Court just talked favorably about in Ohio, the agency was aware of this issue and did address it, talks about it, spent several paragraphs defending it. [00:07:51] Speaker 03: But I think, perhaps more importantly, this issue falls squarely within this court's key assumption doctrine. [00:07:57] Speaker 03: An AFMPM case that we set in our reply brief says, [00:08:00] Speaker 03: Statutory interpretation questions that go to the foundational existence of the rule or pertain to the analytical methodology, I think, are part of the agency's affirmative obligation to undertake non-arbitrary and non-recious rulemaking. [00:08:17] Speaker 03: And I think both of those factors apply here. [00:08:21] Speaker 05: As to the delta between what they talked about in the proposed rule and what you think the deficiency is, you think that's a foundational assumption? [00:08:29] Speaker 03: I think the meaning of availability, Your Honor, is a statutory interpretation that is foundational to the rule. [00:08:34] Speaker 03: I think the meaning of availability is a question that pertains to the analytical methodology for the very reasons that we just discussed, which is that it guides and controls what evidence and what rational connection they need to articulate. [00:08:50] Speaker 03: I think both of those reasons apply here. [00:08:54] Speaker 04: Do you think any dispute [00:08:59] Speaker 04: the meaning of a substantive term fall within this, what's it called? [00:09:05] Speaker 04: Fundamental assumptions doctrine? [00:09:07] Speaker 03: I think this court has held that that's not the case. [00:09:10] Speaker 04: Again, I think that- Right, because otherwise you would say that no statutory claim can be forfeited, which seems- Correct, Your Honor, and there is a case. [00:09:19] Speaker 04: So then we're just trying to assess [00:09:24] Speaker 04: You know, like a junior varsity major questions question is this statutory dispute sufficiently important foundational basic or or is it. [00:09:40] Speaker 04: I guess something more on the margins. [00:09:43] Speaker 03: No, Your Honor. [00:09:45] Speaker 03: I don't think it's sort of like a squishy sliding scale, because I think the AFPM case is trying to articulate categories of statutory interpretation questions, things that go to the core statutory authority, as opposed to the example in the AFPM case was there was a statutory interpretation question about the meaning of the Regulatory Flexibility Act. [00:10:08] Speaker 03: And the court says that that, I think it was the FMPM case, and I apologize if I have that wrong. [00:10:13] Speaker 03: But they say that that's not a statutory interpretation question that goes to the agency's authority to act. [00:10:20] Speaker 03: So I think the case is trying to create some categories. [00:10:23] Speaker 03: One of them is that. [00:10:24] Speaker 03: The other is, again, statutory interpretation questions that pertain to the analytical methodology. [00:10:29] Speaker 03: Again, I don't think that that's a, you know it when you see it. [00:10:32] Speaker 04: My reaction is you can. [00:10:34] Speaker 04: probably guess from my questions, is doing a great job trying to crystallize a legal question. [00:10:43] Speaker 04: But it's gradations of could feasibly versus will be. [00:10:50] Speaker 04: It doesn't strike me as the most foundation. [00:10:56] Speaker 03: I understand, Your Honor. [00:10:58] Speaker 03: We think that it does. [00:10:59] Speaker 03: We think that it goes right to the core of how they [00:11:03] Speaker 03: do the analysis here, which I think falls within one of the categories of AFMPM. [00:11:07] Speaker 03: But if I could, I'd move on to the second point. [00:11:10] Speaker 05: Can I just get one clarification on this first one, and then we'll go on the second one? [00:11:14] Speaker 05: So I take it in response to the questions that we both asked, that Cass and I have asked. [00:11:19] Speaker 05: Your view is that availability, Valnon, is a foundational question. [00:11:24] Speaker 05: The fact that the remaining dispute might be [00:11:28] Speaker 05: a fairly narrow one about what was wrong with what the agency did versus what you think they should have done. [00:11:34] Speaker 05: The narrowness of that doesn't matter for purposes of key assumptions because the key assumption is just availability, period. [00:11:39] Speaker 05: And then once you're in the availability realm, and it doesn't matter how narrow the dispute is, it's still a key assumption. [00:11:46] Speaker 05: Is that the way you're? [00:11:47] Speaker 03: Yeah. [00:11:47] Speaker 03: Yes, Your Honor. [00:11:48] Speaker 03: I think that that logically makes sense. [00:11:50] Speaker 03: I mean, for example, I think if you had a statute that gave EPA the authority to [00:11:57] Speaker 03: regulate greenhouse gases, right? [00:12:00] Speaker 03: And there's a dispute over what the meaning of the phrase greenhouse gases is. [00:12:04] Speaker 03: The key assumption doctrine applies because that's a question of statutory interpretation that is about a word that is at the foundation of the agency's authority to act. [00:12:15] Speaker 03: That dispute may be narrow. [00:12:16] Speaker 03: What the substance of the dispute is, I think, is different from whether the question of statutory interpretation is foundation. [00:12:25] Speaker 03: The second issue that I'd like to highlight is, I think there is a failure to explain under Ohio versus EPA. [00:12:31] Speaker 03: And as I previewed at the outset, as this court I think knows, in that case, the Supreme Court said, granting the stay, that EPA failed to address an important part of the problem where it built a rule on certain assumptions. [00:12:45] Speaker 04: Sorry, you're transitioning to the second of the three that you introduced. [00:12:52] Speaker 03: That's right. [00:12:52] Speaker 04: Maybe I misheard you. [00:12:54] Speaker 04: a second reason why we might excuse any forfeiture or you're just resting on the key assumption. [00:13:02] Speaker 03: Oh, the second reason. [00:13:04] Speaker 03: Well, I think I said the Appalachian power case of this court says that the purpose of 307D [00:13:11] Speaker 03: seven, is to ensure that the agency has had an opportunity to express, you know, apply its expertise. [00:13:19] Speaker 03: And we think that it did so here. [00:13:22] Speaker 03: And if you look at the rule, it addresses this question. [00:13:24] Speaker 03: OK. [00:13:26] Speaker 03: Anoha versus EPA, again, the court said that when an agency builds a rule on certain presumptions and there was [00:13:34] Speaker 03: presence and identity of 23 states, that they have to anticipate and explain what happens if something falls away. [00:13:40] Speaker 03: Again, not necessarily if in fact, although that ended up being true there. [00:13:45] Speaker 03: The question is, as you look forward, you have to explain, what do you do if one of these assumptions doesn't play out to be true? [00:13:53] Speaker 03: And here, the assumptions and the predicates are, for the various subsectors, the availability of a certain number of substitutes. [00:14:00] Speaker 03: 6 for some, 11 for others, 10 for some of the other ones. [00:14:05] Speaker 03: There is no explanation here as to what happens if one of those substitutes falls away. [00:14:11] Speaker 05: So there's a logical upshot of that view. [00:14:13] Speaker 05: So suppose there's 25 substitutes, and 24 of them cover 99% of the situations, and one of them just covers one. [00:14:22] Speaker 05: And if just that one has a kink in it, has a chink in it, then unless the agency spells out that [00:14:30] Speaker 05: If that one, even if that one goes away, we still reach the same conclusion. [00:14:34] Speaker 05: They've got to start over. [00:14:34] Speaker 03: That's an explanation, Your Honor, that they could have provided in the rule. [00:14:39] Speaker 03: And I think that's what Ohio stands for. [00:14:41] Speaker 03: If you look at the Ohio case, what Justice Gorsuch says there is perhaps there is some explanation why the number and identity of participating states does not affect [00:14:50] Speaker 03: And the ultimate conclusion that that's our point here is that perhaps, Your Honor, the 25 doesn't matter. [00:14:55] Speaker 03: And perhaps it's because 24 of them cover a lot of it. [00:15:00] Speaker 03: Perhaps the number doesn't matter at all, which is what the dispute was between the majority and the dissent. [00:15:05] Speaker 03: in Ohio that we didn't really mean this number to be foundational or important, right? [00:15:11] Speaker 03: But again, as Justice Gorsuch says there, that's an explanation that the agency could have and should have provided in the rule, but it didn't. [00:15:20] Speaker 03: And that is a failure to address an important aspect of it. [00:15:23] Speaker 04: I thought Ohio turned on the fact that the agency's own explanation there [00:15:32] Speaker 04: assume that I may get the facts wrong but they said all 23 upwind states would do such and such and the court found that wasn't justified. [00:15:48] Speaker 04: I see my time has expired but [00:15:51] Speaker 03: It seems very different from what's going on here. [00:15:55] Speaker 03: Well, I don't think so, Your Honor, because I think there, I think that's what justice, you could tell it. [00:16:00] Speaker 04: That's a core part of the act. [00:16:02] Speaker 04: The court viewed that as an essential element of the explanation, right? [00:16:07] Speaker 04: Whereas here, the point of this scheme, nobody cares whether [00:16:16] Speaker 04: Nobody cares whether a supermarket is using substitute seven or substitute eight. [00:16:22] Speaker 04: What they care about is that the supermarket is no longer using CFCs or HFCs. [00:16:30] Speaker 03: I think we're sort of on the same page about Ohio, but let me start there and then move to the application of it to this case. [00:16:36] Speaker 03: I think what the court in Ohio said is, we think, but we're not sure. [00:16:42] Speaker 03: And I think that's an important piece of it. [00:16:44] Speaker 03: I think the court said, we think, but we're not sure that what you've built here is a Jenga tower. [00:16:49] Speaker 03: And you haven't explained what happens if some of those pieces get pulled out. [00:16:55] Speaker 03: Maybe they will be, maybe they won't be. [00:16:57] Speaker 03: But then, to make very clear, I think that we think, but we're not sure, in addressing Justice Barrett's dissent, there's a whole discussion there about, is it in fact a Jenga tower? [00:17:07] Speaker 03: Which I think goes a little bit to your question of how we understand Ohio. [00:17:11] Speaker 03: I think the court says, look, the dissent says it's not a Jenga tower. [00:17:15] Speaker 03: It's something else, right? [00:17:16] Speaker 03: It's not built on these 23. [00:17:18] Speaker 03: And Justice Gorsuch says, [00:17:21] Speaker 03: Maybe. [00:17:22] Speaker 03: But we're not sure. [00:17:24] Speaker 03: We think it is. [00:17:25] Speaker 03: There's signs in the rule that suggest that this is a Jenga tower. [00:17:28] Speaker 03: And you have to explain either, one, what happens if you pull some of those pieces out, or two, you can quarrel with whether it's a Jenga tower at all. [00:17:37] Speaker 03: So that brings us to our case. [00:17:39] Speaker 03: I don't think it's just about, you know, do they use one substitute or another. [00:17:44] Speaker 03: I think, I mean, the agency says in a number of places that a variety of substitutes is important, right? [00:17:50] Speaker 00: More than one. [00:17:51] Speaker 03: That we identified multiple substitutes to ensure a smooth transition. [00:17:56] Speaker 03: That's in the rule. [00:17:57] Speaker 03: And so I think the fact that they have six or 11 is important. [00:18:01] Speaker 03: And I think, Your Honor, if you look at the Maryland DC Delaware broadcasters case, [00:18:05] Speaker 03: where Judge Ginsburg wrote the majority there. [00:18:07] Speaker 03: And he said that that one was about were there two compliance options for FCC, and one of them was unconstitutional. [00:18:11] Speaker 04: And what he says there is, presumably, which are sort of related, which both are pressuring the broadcasting companies to do something unconstitutional, it just seems very different. [00:18:26] Speaker 03: But again, your honor, I think that's something that the agency could have said. [00:18:29] Speaker 03: I think that that's what Ohio was saying. [00:18:30] Speaker 03: They can provide an explanation for why the six is not an important number. [00:18:35] Speaker 05: So if they have 12 substitutes as possibilities, do they have to go through and explain every single permutation? [00:18:44] Speaker 05: Like if number seven is out, but one through six and eight through 12 are in, we'd still do this. [00:18:52] Speaker 05: If seven and two are out, three's a maybe, five's a probably, and eight's a very likely but not sure, here's the result. [00:19:01] Speaker 05: Do they actually have to go through every single permutation? [00:19:03] Speaker 03: Your honor, I think that's the same question that one could ask of what the Supreme Court was expecting of EPA in Ohio, which is, do they have to go through every permutation of the 23 states? [00:19:11] Speaker 05: Well, I think the way you described Ohio, you said, we think, but we're not sure it's a Jenga tower. [00:19:16] Speaker 05: Suppose that the assumption is the opposite, that we're pretty sure, but they didn't explicitly say it, but we're pretty sure it's not a Jenga tower. [00:19:24] Speaker 05: Does it still, at that point, still vacate and send it back? [00:19:28] Speaker 05: for the agency to say, no, actually, your assumption was right. [00:19:33] Speaker 05: It's not a Jenga tower. [00:19:36] Speaker 03: Your Honor, I think, and I think what Ohio reflects there is that there's some play in the joints there. [00:19:42] Speaker 03: I would say that if you're in that middle where you say, we think, but we're not sure. [00:19:45] Speaker 03: We think it's not, but we're not sure it isn't. [00:19:47] Speaker 03: I think they still have to provide the explanation. [00:19:50] Speaker 03: Your Honor, if you look at the rule, you disagree with us, and you say, this is absolutely not a Jenga tower. [00:19:55] Speaker 03: Well, then we've got a different case. [00:19:57] Speaker 03: But I think that there is a lot of language in the rule where EPA says this is in the technical support document. [00:20:03] Speaker 03: We accounted for the fact that not every substitute could be used in every application. [00:20:06] Speaker 03: But by allowing a range of substitutes, the fact that there are multiple substitutes is critical to the deadlines that they picked. [00:20:14] Speaker 03: And more importantly, and I realize in Maryland, Delaware, DC, or DC, Delaware, there were only two, but I think there's something to be said for the fact that for some they said 11, for some they said 12, for some they said six. [00:20:27] Speaker 03: Why that number? [00:20:28] Speaker 03: Again, the burden is on EPA to explain that. [00:20:31] Speaker 03: Let me give you a... [00:20:33] Speaker 04: Couple of conceptual reasons why I'm resistant to your maximum, at least aggressive reading of those two cases. [00:20:45] Speaker 04: One is the APA rule of prejudicial error. [00:20:50] Speaker 04: It's your burden to show that any mistake in reasoning made a difference, could have made a difference. [00:21:01] Speaker 04: It's not a harmless error. [00:21:02] Speaker 04: It's not like you show error and then they have to prove harmlessness. [00:21:07] Speaker 04: It's not Chapman or something. [00:21:10] Speaker 04: First point. [00:21:10] Speaker 04: Second point, there's kind of a loose analogy to severability here. [00:21:17] Speaker 04: I don't think this is really severability because the options are [00:21:22] Speaker 04: support document rather than the codified text. [00:21:26] Speaker 04: But if you think about it that way, the presumption is in favor of severability. [00:21:31] Speaker 04: If we can just excise one of the options and the rest of the scheme doesn't just collapse, the presumption is that we do that. [00:21:42] Speaker 04: You're saying, you know, unless it's their burden to show [00:21:48] Speaker 04: their burden to show severability rather than your burden to show inseparability. [00:21:53] Speaker 04: And both of those ideas leads me to think, you know, as long as most of as long as some number of these options remain, it's not good enough for you to just knock out one or two here, here or there. [00:22:13] Speaker 03: If I could take those in turn, and then I think there was a third one there about what if we actually do show that some of them are out. [00:22:20] Speaker 03: So on the first question of the APA doctrine of prejudicial error, I think Ohio actually speaks to that. [00:22:30] Speaker 03: Your Honor, at the very end of that opinion, where Justice Gorsuch is sparring with the dissent, he says that the dissent says this might be harmless error. [00:22:42] Speaker 03: And he says, one, they didn't raise it, which is the same here. [00:22:46] Speaker 03: That harmless error argument has not been raised. [00:22:49] Speaker 03: And the second is, under the Clean Air Act 307D9, he says, there might not actually be. [00:22:57] Speaker 03: He says the prejudicial error language in the Clean Air Act, which is slightly different from the APA, is in 307D8, which talks about procedural determinations. [00:23:07] Speaker 03: and not in 3079, which sets forth arbitrary and capricious and exceeds statutory authority and sort of mirrors the standards. [00:23:15] Speaker 03: So that's the answer one. [00:23:16] Speaker 03: I think Ohio and all that in the neutral. [00:23:17] Speaker 03: Yes, the very last before I think before the before the star. [00:23:22] Speaker 03: The second to your severability point, again, I think Maryland's DC Delaware answers that. [00:23:28] Speaker 03: I mean, that is a severability case. [00:23:31] Speaker 03: And it says that if they haven't provided that explanation, and there's been a lot of skepticism recently by the Supreme Court and other courts about severability clauses from the EPA that just sort of say, well, all of this stuff is severable and can stand alone if you find an error. [00:23:49] Speaker 03: And I think that case, I don't think it's a maximalist reading. [00:23:51] Speaker 03: of it. [00:23:53] Speaker 03: The third question that you had asked is about whether some of these, and I'm way over my time, I understand. [00:24:00] Speaker 03: But if some of these fall away, what happens to the rule? [00:24:07] Speaker 03: And I just want to say, I mean, that gets into the third point that I wanted to raise, which is there's availability. [00:24:13] Speaker 03: There's Ohio, which assumes that the predictions are adequately explained. [00:24:17] Speaker 03: But then there's the third piece of this, which is we actually don't think some of the predictions are adequately explained. [00:24:22] Speaker 03: And I don't want to abuse the court's privilege here, but the main complaint that we have is with our analysis of building codes. [00:24:30] Speaker 03: and particularly with respect to local building codes. [00:24:34] Speaker 03: They have some answers to statewide building codes, which we don't think are sufficient. [00:24:39] Speaker 03: But for local building codes, really the only thing that they say is there are 30 states, that number we had trouble finding in the record, but they say there are 30 states in which SNAP-approved substitutes must be allowed by local building codes. [00:24:56] Speaker 03: they provide no answer to the other 20, other than the hope and the prayer that those local ones are going to come around. [00:25:03] Speaker 03: And I know they say, and we don't contest, that they don't have to go locality by locality and show every single one. [00:25:10] Speaker 03: But the localities in 20 out of 50 states is a lot. [00:25:14] Speaker 03: And I think that the arbitrary and capricious standard requires the fact that they have to provide a rational connection, requires them to do something, to say something about, [00:25:24] Speaker 03: What's going to happen? [00:25:24] Speaker 04: You know, you don't dispute they can construe availability to mean generally available. [00:25:36] Speaker 03: Um, I don't. [00:25:38] Speaker 03: I think that's consistent with the idea that we don't have to go through every locality. [00:25:43] Speaker 04: I don't know the map. [00:25:45] Speaker 04: The map that they cite seems to show that we're some [00:25:52] Speaker 04: have approved or will have approved at least the A2Ls at the state level in light of in light of the [00:26:02] Speaker 04: the double whammy of the SNAP approval and the IBC approval. [00:26:06] Speaker 04: They seem like they're pretty powerful. [00:26:08] Speaker 03: But I think it's important to distinguish there. [00:26:11] Speaker 03: I mean, that map is only talking about statewide legislation. [00:26:16] Speaker 03: It's not telling you which states have statewide legislation that preempts local laws. [00:26:22] Speaker 03: And that, for us, is the really big problem here. [00:26:24] Speaker 03: is that they have some answers at the statewide level. [00:26:27] Speaker 03: And again, I don't think that they explain why the two additional years or the one additional year actually makes any more sense than four or five. [00:26:36] Speaker 03: But for the localities, that map has no, it doesn't answer that. [00:26:41] Speaker 03: That's not talking about states where you have statewide laws, state law that preempts localities from doing something different. [00:26:49] Speaker 04: Sorry, I thought they're showing the light blue states. [00:26:53] Speaker 04: say building code legislation signed into law. [00:26:57] Speaker 04: Correct. [00:26:58] Speaker 04: Assume that means that the state has said. [00:27:02] Speaker 04: It does not, Your Honor. [00:27:03] Speaker 04: It is permissible to use an A2L refrigerant. [00:27:07] Speaker 03: That is not what it means. [00:27:08] Speaker 03: What does it mean? [00:27:09] Speaker 03: It stops it as the state's standard, but they admit that because of home rule, [00:27:18] Speaker 03: The localities can do something different. [00:27:21] Speaker 03: Can impose a high of a standard. [00:27:23] Speaker 03: That is absolutely true. [00:27:26] Speaker 03: That's in the rule, and they admit it. [00:27:27] Speaker 03: They say that in many of these states, many states, this is JA 39, 73, [00:27:34] Speaker 03: I have an extra number here. [00:27:35] Speaker 03: I think it's 143. [00:27:37] Speaker 03: Many states allow local governments to set their own building codes provided they comply with the minimum standards established, minimum standards of safety, right? [00:27:43] Speaker 03: So they don't have to, that map doesn't address. [00:27:46] Speaker 03: Unless there's preemption. [00:27:47] Speaker 03: Unless there's preemption. [00:27:48] Speaker 03: Which can happen. [00:27:49] Speaker 03: And they say that there's 30 states. [00:27:51] Speaker 03: Again, I don't know where that is in the record. [00:27:53] Speaker 03: It's not in that map. [00:27:54] Speaker 03: They cite to a blog, I think, a blog post that I pulled up, doesn't have the number 30 in there. [00:27:59] Speaker 03: But let's take the 30. [00:28:01] Speaker 03: They don't explain what you do in the other 20. [00:28:04] Speaker 03: They don't say, well, we think localities generally come around at a clip of 75%, so it's going to be fine. [00:28:11] Speaker 03: There's no explanation for the other 20. [00:28:13] Speaker 03: Your Honor, that map has a lot of different colors on it, but it doesn't address the local home-road problem. [00:28:18] Speaker 03: And with that, Your Honor, thank you for the additional time. [00:28:22] Speaker 05: We have full time for rebuttal. [00:28:25] Speaker 05: Mr. Martin. [00:28:38] Speaker 06: Morning, Your Honours. [00:28:39] Speaker 06: May it please the Court, Daniel Martin for the United States. [00:28:42] Speaker 06: With me on the brief and at council table today is Kay True Ting from the Environmental Protection Agency. [00:28:48] Speaker 06: So, Your Honours, after hearing the presentation from my friend on the other side, I want to begin today by focusing on where petitioners agree with EPA. [00:28:56] Speaker 06: They agreed that Congress instructed EPA to promulgate technology transitions rules by, in the words of the statute, factoring in, to the extent practicable, the availability of substitutes based on best available data. [00:29:11] Speaker 06: They agree that the sale only concerns prospective application, meaning sale or installation of equipment, new equipment, building new supermarkets in the future. [00:29:21] Speaker 06: There's no retrofit requirement. [00:29:23] Speaker 06: There's no, you have to go tear out your old HFC using systems and put in these new systems. [00:29:28] Speaker 06: And they agree that because these compliance deadlines all take place years in the future, that we're inherently talking about a predictive judgment about whether a substitute will be ready for use in the future based on EPA's professional judgment and the factors that Congress set forth. [00:29:45] Speaker 06: So with that agreement in mind, we're really dealing with a narrow question today for just these five specific subsectors. [00:29:52] Speaker 06: And these are all severable from each other. [00:29:54] Speaker 06: Both petitioners say that EPA said that in the rule. [00:29:57] Speaker 06: They're all supported by separate analysis. [00:29:59] Speaker 06: For just these five specific subsectors, are these compliance deadlines reasonable? [00:30:04] Speaker 06: And the number thing I want to convey to the court today is that's an arbitrary and capricious question, not a statutory interpretation question. [00:30:13] Speaker 06: Because we're in a situation where Congress says, here is what we want you to do. [00:30:18] Speaker 06: Here are the factors that we want you to look at. [00:30:21] Speaker 06: Again, factor in to the extent practicable. [00:30:24] Speaker 06: So go do fact finding. [00:30:25] Speaker 06: Go examine these factors. [00:30:27] Speaker 06: Apply the best available data, your professional judgment, and reach a reasoned conclusion. [00:30:32] Speaker 06: And that is arbitrary and capricious review. [00:30:35] Speaker 06: So another way you might ask this question, starting with where Judge Katz has started off the discussion today, is if you accepted all of EPA's fact finding, all of their reason decision making, all of their weighing of the factors, [00:30:48] Speaker 06: And you just took the different language in the preamble about does expect will happen rather than could feasibly. [00:30:56] Speaker 06: How would this rule look any different? [00:30:58] Speaker 06: The answer is it wouldn't at all because there's no dispute about what available means. [00:31:03] Speaker 06: So starting from that point, I want to focus my time today on the three most important reasons that the court should deny the petitions. [00:31:11] Speaker 06: First is looking at EPA's overall approach. [00:31:15] Speaker 06: EPA correctly applied the AIM Act when it looked at availability of substitutes based on a holistic review of all the sub-factors. [00:31:23] Speaker 04: You know, it's fine to say holistic review and you don't need to satisfy all of the sub-factors, but the building code sub-factor seems different in kind. [00:31:38] Speaker 04: Talking about affordability, cost, efficiency, all of these other factors are questions of degree in which you make a judgment about at what point does the increase in cost shade into the more expensive option being unavailable. [00:32:02] Speaker 04: The building code is fundamentally different. [00:32:04] Speaker 04: It's an on-off switch. [00:32:08] Speaker 04: plausible meaning of availability that would apply to something that's legally prohibited. [00:32:15] Speaker 04: Something is legally prohibited, it can't possibly be. [00:32:19] Speaker 06: That's correct, Your Honor, in the abstract. [00:32:22] Speaker 06: Certainly, if something is legally prohibited, it's not available. [00:32:25] Speaker 06: An EPA in the rule found certain substitutes wouldn't be available because they are legally prohibited. [00:32:30] Speaker 06: But the important thing is, forecasting into the future, are they going to be legally prohibited? [00:32:35] Speaker 04: Right. [00:32:36] Speaker 04: So what's your answer? [00:32:37] Speaker 04: Arbitrary and capricious. [00:32:39] Speaker 04: So you get your opponents running a little bit uphill, but you still have to explain the timeline. [00:32:47] Speaker 04: That's correct, Your Honor. [00:32:48] Speaker 04: EPA did explain the timeline. [00:32:50] Speaker 04: The rule as to HVAC gave a 15-month lead time, give or take, right? [00:32:59] Speaker 04: That's not quite correct, Your Honor, so it's... It's passed in late December 2023, and the effective date, at least for manufacturing and [00:33:11] Speaker 04: fact is beginning of 25. [00:33:13] Speaker 04: Right. [00:33:14] Speaker 06: So that's for manufacturing 2025 and installation. [00:33:19] Speaker 04: Okay. [00:33:19] Speaker 04: So I'm not sure which is the more relevant deadline for the industry, but little over a year, a little over two years, something like that. [00:33:31] Speaker 04: That's correct. [00:33:31] Speaker 04: Your own discussion of building codes shows that the [00:33:39] Speaker 04: States and localities, there's a lag time from when some code is passed and when the legislature updates the code. [00:33:55] Speaker 04: That's correct. [00:33:58] Speaker 04: three to six years. [00:34:00] Speaker 04: It can be up to eight years. [00:34:02] Speaker 04: You have a 2023 technical support document that talks about some jurisdictions still following the 2015 codes. [00:34:13] Speaker 04: That's an eight year lag. [00:34:16] Speaker 04: That seems like a pretty big disconnect between what you anticipate are the lead times to get the codes changed and what you allowed [00:34:27] Speaker 04: the manufacturers in your [00:34:30] Speaker 06: So Your Honor, I want to have two responses to that focusing on availability writ large nationwide, including the experience of the ozone depleting substances phase out, and then specifically what's going on the ground in these localities that might be using longer jurisdictions. [00:34:46] Speaker 06: So first, on what available for building code means, the AIM Act was not passed in a vacuum. [00:34:52] Speaker 06: The AIM Act comes on the experience of the Montreal Protocol in phasing out ozone depleting substances. [00:34:59] Speaker 06: And this exact same process happened there, where building codes originally wouldn't allow you to switch over to HFCs. [00:35:05] Speaker 06: And it was a gradual process where building codes start out with the international building codes, they start out with the UL standards, and they start out with SNAP approval. [00:35:15] Speaker 06: Once those things happen, it cascades down. [00:35:18] Speaker 06: And the reason for that is that [00:35:19] Speaker 06: industry is pressuring the localities to update their building codes because they want to install their product. [00:35:26] Speaker 06: So EPA is drawing on that experience. [00:35:28] Speaker 06: Congress also entrusted them to do that and they found that when there is regulation and again the HVAC sector writ large broadly supports the HVAC requirement because they want everyone to move together. [00:35:39] Speaker 06: They don't want imports to undercut their ability to sell the updated products. [00:35:44] Speaker 06: So [00:35:45] Speaker 06: When you have regulation that allows everyone to move together with one smooth compliance deadline, that is pressuring local building codes to update. [00:35:54] Speaker 06: And again, no retrofit, no tarot, things that we're talking about prospect if you want to build something new. [00:35:59] Speaker 06: So that's writ large. [00:36:01] Speaker 06: When something starts out available in some places, it becomes available in more places over time. [00:36:06] Speaker 06: And the lag time is not always the full eight years. [00:36:10] Speaker 06: Certainly nationwide, we're looking at at least 41 states at the time of the final rule that allowed A2Ls. [00:36:17] Speaker 04: Which I had thought pretty much cinched things up for you. [00:36:22] Speaker 04: But what do you do with Mr. Lin's point that [00:36:28] Speaker 06: deal with lord knows how many hundreds or thousands of local jurisdictions so there's a mixture of the statewide codes and then there's also local preemption and again we're talking about to the extent practicable EPA said they can see it would be totally impractical for EPA to look at every single locality throughout the country so we're talking about generally available [00:36:48] Speaker 06: And there's no evidence in the record or certainly no evidence in the comments that they provided during the comment period saying all of these localities and all of these states are going to not have these building codes updated. [00:37:02] Speaker 06: The vast majority of building codes have all been updated. [00:37:04] Speaker 06: And this isn't in the record because it happened after the fact. [00:37:07] Speaker 06: But just to satisfy the court's curiosity, we're down to just four states. [00:37:11] Speaker 06: And they're all expected to update by 2025. [00:37:14] Speaker 04: So what we're talking about. [00:37:18] Speaker 04: Well, just at the state level, the map looks pretty good for you. [00:37:22] Speaker 04: But, you know, there are three, um, three states coded as legislative effort failed. [00:37:31] Speaker 04: So, yeah, thank you for that question, your honor. [00:37:33] Speaker 04: What happens in Nevada and Kentucky and Hawaii? [00:37:36] Speaker 06: So the legislative effort failed just was talking about the snap approval preemption process. [00:37:42] Speaker 06: We detail in our brief where when EPA approves something for snap, it automatically becomes available throughout the whole state. [00:37:48] Speaker 06: Nevada doesn't have any state building codes. [00:37:50] Speaker 06: They just have county level building codes. [00:37:53] Speaker 06: So there was a law passed, or there's a law tried to get passed saying snap approval will apply statewide and that failed. [00:38:01] Speaker 06: But they're still in the process of updating their building codes in the counties to allow A2Ls. [00:38:06] Speaker 06: It goes way too far to say, you know, legislative effort failed means this isn't going to happen. [00:38:11] Speaker 06: But the record doesn't support that. [00:38:13] Speaker 06: And what's actually happening on the ground doesn't support that. [00:38:16] Speaker 06: Then my second question about my second point about availability is it's a completely unreasonable interpretation of the statute and what EPA did here to say that EPA has to go locality by locality through all 50 states and check off a box saying now in 2023, available, available, available, available, available, available, available. [00:38:36] Speaker 06: That's not what the statute says you have to do. [00:38:38] Speaker 04: No, I agree with that. [00:38:41] Speaker 04: But available. [00:38:44] Speaker 04: It seems to suggest some congruence between the time in the ordinary course that it would take on average, let's say, to do the updating and the time that you give them. [00:38:59] Speaker 04: I mean, I suppose you could say, well, if EPA imposes a rule under which states can't have grocery stores unless they change the code, probably they'll change the code. [00:39:14] Speaker 04: But it doesn't seem like that describes a scenario under which the new standard is available. [00:39:24] Speaker 06: Well, again, new grocery stores, your honor, going forward. [00:39:27] Speaker 06: And EPA did say we have experience from the ozone depleting substances phase out. [00:39:33] Speaker 06: We saw that it takes a certain amount of time for these codes to be updated. [00:39:37] Speaker 06: And we expect that to happen here. [00:39:38] Speaker 06: And so far, EPA's predictions have been correct. [00:39:41] Speaker 05: Can I just ask you on the [00:39:43] Speaker 05: point about general availability. [00:39:44] Speaker 05: So if it was just true that five states don't allow it all, even making low population states, five states don't allow it all, and there's no particular reason to think that they will turn around and allow it for whatever reason, but then 45 states do, is availability satisfied? [00:40:03] Speaker 05: Yes, Your Honor. [00:40:04] Speaker 05: Because it's generally available, even if there's no reason to think that in a tenth of the states, there's going to be a turnaround. [00:40:11] Speaker 05: Yes, you're right. [00:40:11] Speaker 06: In that hypothetical scenario, it still would be generally available. [00:40:15] Speaker 06: But the important premise of EPA's analysis here is slightly different than your hypothetical, which is that when all the other states have it available and adopt it, that does pressure those remaining states. [00:40:26] Speaker 05: Yeah, there's a hydraulic incentive. [00:40:27] Speaker 05: Exactly. [00:40:28] Speaker 05: So that's extremely important. [00:40:29] Speaker 05: I was just wondering about your interpretive. [00:40:31] Speaker 05: But the way you interpret the statute is that [00:40:34] Speaker 05: It's just generally available, meaning available in a mine run of situations. [00:40:39] Speaker 05: But even if there's a non-trivial share of situations in which it's unavailable and there's no prospect of availability, it's still generally available. [00:40:47] Speaker 06: That's correct, Your Honor. [00:40:48] Speaker 06: But again, going to the facts here, that's why there's a range of substitutes. [00:40:51] Speaker 06: We're not just talking about A2Ls. [00:40:53] Speaker 06: We're also talking about carbon dioxide. [00:40:55] Speaker 06: We're talking about hydrocarbon. [00:40:57] Speaker 05: So can I ask Judge Katz to raise HVACs and just on that particular example. [00:41:01] Speaker 05: So the amicus brief. [00:41:03] Speaker 05: says that there's no standing as to HVACs in particular, because if you look at the affidavit, it's really focused, the main affidavit, it's really focusing about refrigerators. [00:41:11] Speaker 05: Do you have a view on that? [00:41:13] Speaker 06: So the United States is not contesting standing for just the challenged subsectors here. [00:41:18] Speaker 06: Certainly, the Guerin Declaration could not provide standing. [00:41:21] Speaker 06: It just says, we're going to be harmed by this rule. [00:41:23] Speaker 06: That's enough. [00:41:23] Speaker 06: But the Anderson Declaration does say, we're going to incur costs. [00:41:27] Speaker 06: And that aligns with EPA's analysis, that there will be some startup costs. [00:41:30] Speaker 06: But eventually, the HVAC. [00:41:32] Speaker 06: including with HVACs, but eventually they'll be handsome savings from the increased efficiency over time. [00:41:38] Speaker 06: I mean, all of these new systems are way more efficient than the HFC systems, and that's why, in addition to positive environmental impacts, we're seeing positive cost impacts, especially for small businesses. [00:41:48] Speaker 06: and residences. [00:41:50] Speaker 06: It does seem the case that they would only be able to challenge standing as far as it affects the food retail industry. [00:41:56] Speaker 06: But the way the rule is written is just for HVAC writ large. [00:42:00] Speaker 06: And so assuming you wanted to go down the road of saying just for HVAC, we don't think that that was adequately explained. [00:42:07] Speaker 06: The remedy would really be remand and then EPA could craft a more narrow rule. [00:42:11] Speaker 06: certainly remand without vacant or because it's going to be so disruptive to the HVAC industry, which broadly supports this rule to allow imports from other countries to come in and undercut the new products. [00:42:22] Speaker 06: So for HVACs in particular, we're not contesting standing, but I think a narrow remedy would be the most appropriate thing there. [00:42:29] Speaker 06: So one additional point I want to make about the overall approach that EPA said, we had a lot of discussion about severability and what does it mean to knock out something in a Jenga tower? [00:42:42] Speaker 06: This is not a Jenga tower. [00:42:44] Speaker 06: This is nowhere close to Ohio. [00:42:45] Speaker 06: This is nowhere close to Maryland, DC, Delaware, because there you're talking about actual compliance options. [00:42:52] Speaker 06: FCC, you have two options. [00:42:55] Speaker 06: You can follow this regulation or you can follow this regulation. [00:42:58] Speaker 06: EPA does not care at all what substitutes the industry decides to use. [00:43:04] Speaker 06: The market is going to decide what's best for all these different applications. [00:43:08] Speaker 06: Instead, it's about is there enough time for the alternatives to come into play and be available? [00:43:14] Speaker 06: And so once you have that understanding of how the rule works, and this is what Congress said they wanted the rule to look like, then this is how the case makes sense. [00:43:23] Speaker 06: And EPA, I really want to push strongly against this idea that EPA didn't explain this. [00:43:28] Speaker 06: It is baked into the rule. [00:43:30] Speaker 06: that you have compliance deadlines into the future so that multiple substitutes can come onto the market. [00:43:36] Speaker 06: And no guarantee that the substitutes EPA identified will all 100% be available. [00:43:42] Speaker 06: EPA said this. [00:43:44] Speaker 06: You can look at the JA3453, where it talks about there are some of the substitutes that have constrained availability. [00:43:53] Speaker 06: Where are you? [00:43:54] Speaker 06: JA34. [00:43:55] Speaker 06: Yeah, I'm on 34. [00:43:55] Speaker 05: Yeah. [00:43:56] Speaker 05: Where are you on 34? [00:43:58] Speaker 06: I don't have the exact quote in front of me, Your Honor, but if you look, I remember from my prep, I think it was in the bottom left side of the three columns. [00:44:07] Speaker 06: When you look at the rule, some substitutes might have constrained availability, and that's why we have increased some of these compliance deadlines so that everything can come onto the market. [00:44:16] Speaker 06: That's the whole premise of this rule, is we set reasonable compliance deadlines [00:44:21] Speaker 06: industry determines what innovation will happen, and then the market decides what these substitutes are. [00:44:27] Speaker 06: And they might be different for different subsectors, different applications. [00:44:31] Speaker 06: But at the very minimum, I see the amount of time, Your Honor. [00:44:35] Speaker 06: At the very minimum, I just want to conclude by saying that for many of these subsectors, I'm talking about standalone units, cold storage warehouses in particular, the substitutes are already on the market. [00:44:48] Speaker 06: The transition has already happened. [00:44:50] Speaker 06: And so, vacating those subsectors where there's already widespread availability, it just, it flies in the face of the data, what EPA did here. [00:44:58] Speaker 06: There are no further questions. [00:44:59] Speaker 06: The court should deny it. [00:45:00] Speaker 00: Which one did you say is ready? [00:45:01] Speaker 00: The cold storage? [00:45:03] Speaker 06: So to be clear, there's an available substitute right now in all five subsectors. [00:45:08] Speaker 06: But in standalone units, cold storage warehouses in particular, the substitutes are already dominant on the market, as opposed to something like supermarkets where carbon dioxide is broadly used, Europe, Japan, United States, but it's not dominant in the market yet. [00:45:25] Speaker 05: Thank you, yours. [00:45:26] Speaker 05: Thank you, Council. [00:45:29] Speaker 05: And then we'll give you the three minutes that you requested. [00:45:32] Speaker 03: Thank you, Your Honor. [00:45:33] Speaker 03: Just a couple points. [00:45:34] Speaker 03: I want to start with a focus on HVAC. [00:45:37] Speaker 03: I think it's really important to understand there that there are only two categories of substitutes, A3s and A2Ls. [00:45:45] Speaker 03: A2Ls have the building code issue, which I'll address a little bit more. [00:45:49] Speaker 03: EPA says themselves that they are only available for window units and portable air conditioners. [00:45:54] Speaker 03: That is not what we use in giant grocery stores. [00:45:57] Speaker 03: So if you take the A2Ls out, I just don't think you've got available substitutes for HVAC. [00:46:05] Speaker 03: On the building codes point, my friend gave a long explanation of their experience with the transition from ODS. [00:46:12] Speaker 03: And he said, we saw that the timeline worked. [00:46:17] Speaker 03: One, that discussion is not in the building codes analysis, in the TSD, or in the rule. [00:46:22] Speaker 03: And two, my friend didn't give you years. [00:46:25] Speaker 03: He didn't say, well, it was two years there, and it should be two years here. [00:46:30] Speaker 03: And do we know that the state numbers are the same? [00:46:32] Speaker 03: Do we know that the number of localities is the same? [00:46:35] Speaker 03: And then you can just point to the ODS transition and say, well, it worked there. [00:46:38] Speaker 03: It worked here. [00:46:39] Speaker 03: That's the explanation that's missing. [00:46:43] Speaker 04: Similarly, what's wrong with the assertion that it seems that these new standards have been [00:47:00] Speaker 04: generally approved. [00:47:02] Speaker 04: Maybe it's 40, maybe it's 30. [00:47:04] Speaker 04: A lot of approval, a lot of reason to think there will be approval. [00:47:11] Speaker 04: It seems like jurisdictions respect SNAP and respect the international code. [00:47:19] Speaker 04: And their catalyst theory, which is this really holds the state or municipal legislators feet to the fire. [00:47:32] Speaker 04: Like they're going to get this done because it's important. [00:47:35] Speaker 04: Of course, Your Honor. [00:47:36] Speaker 03: Their towns won't have grocery stores otherwise. [00:47:40] Speaker 03: I think one way to think about it is to look at the fact that for some of these particularly supermarket systems, there was a change in the deadlines after the notice and comment period. [00:47:49] Speaker 03: So EPA recognized after the notice and comment period that one year wasn't enough because of some of the building code stuff. [00:47:55] Speaker 03: And they had before them this sort of general notion. [00:47:57] Speaker 03: But then they were like, oh, OK, one is definitely not enough. [00:48:00] Speaker 03: So we'll just add two more. [00:48:01] Speaker 03: We think two more is enough. [00:48:03] Speaker 03: Well, why? [00:48:04] Speaker 03: Right? [00:48:04] Speaker 03: That's the rational explanation that is missing. [00:48:07] Speaker 03: And yes, it sort of seems like some of these things are working. [00:48:10] Speaker 03: But how do you connect that to the timeline? [00:48:13] Speaker 03: And that's all we're talking about here. [00:48:14] Speaker 03: It's not the transition itself, but the timeline. [00:48:17] Speaker 03: They haven't explained that. [00:48:19] Speaker 03: And on the local building codes, I think Nevada is a really great example. [00:48:22] Speaker 03: I mean, my friend said there's no statewide building code, and the localities all do their own stuff. [00:48:27] Speaker 03: And they tried to preempt it, and it didn't pass. [00:48:30] Speaker 03: It's going to happen in Nevada, right? [00:48:32] Speaker 03: And there's no explanation, even based on experience, as to why this will continue and get any better. [00:48:42] Speaker 03: Sorry. [00:48:44] Speaker 03: I had one last point, if I could make it. [00:48:46] Speaker 03: Just on the meaning of availability, we had a discussion about whether they agreed to ready to use at the time, or if it's something, I think, significantly more squishy than that. [00:48:57] Speaker 03: One of the last things my friend said is, we said, we think that some of these substitutes aren't actually going to be available at the time. [00:49:03] Speaker 03: That's not ready for use. [00:49:05] Speaker 03: So on the one hand, in his brief, he says, I think it's good that we used ready for use at the time of availability, at the time of compliance, immediately obtainable. [00:49:14] Speaker 03: And on the other hand, here and in their brief, they're saying, well, when we promulgated this rule, we didn't actually think that all of these substitutes would be available. [00:49:22] Speaker 04: Said one last question, which I forgot to ask your understanding. [00:49:28] Speaker 04: Um, I wasn't necessarily persuaded as to cold storage warehouses. [00:49:36] Speaker 04: The member declarations as we run a chain of supermarkets. [00:49:43] Speaker 04: Um, I think that gets you the other four factors. [00:49:46] Speaker 04: But my understanding is the cold storage warehouse is something that's [00:49:52] Speaker 04: not near the supermarket. [00:49:54] Speaker 04: It's off somewhere else. [00:49:57] Speaker 04: And I would think it's run by the distributor that sells goods to the supermarket, not by the supermarket. [00:50:07] Speaker 03: We have members, Your Honor, that do run Cold Storage Warehouses. [00:50:11] Speaker 03: To your point, the declaration did not. [00:50:15] Speaker 03: The American Frozen Food Institute is an association that includes a lot of members that run H-E-B run cold storage warehouses. [00:50:26] Speaker 03: I know it's not in the record. [00:50:28] Speaker 03: I don't have the answer to that. [00:50:30] Speaker 03: Sorry, Your Honor, but I'm happy to address that if it is something of concern to you. [00:50:37] Speaker 05: Thank you, Council. [00:50:37] Speaker 03: Thank you to both Council. [00:50:38] Speaker 03: We'll take this case under submission.