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Case number 23-1267, SSM litigation group petitioner versus environmental protection agency.

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Mr. Frye for the petitioner, Mr. Durkey for the respondent.

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Good morning.

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May it please the court?

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Morning.

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Russell Frye on behalf of petitioner SSM litigation group, and I would like to reserve two minutes for rebuttal.

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Over 30 years ago,

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and actually consistent with the position EPA had taken for years, decades before that, EPA determined it was appropriate and permissible to include in Title V operating permits under the Clean Air Act a provision allowing sources to exercise an affirmative defense to liability for missions that were unavoidable with the use of the technology that they are

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required to use, they still couldn't meet the limitation during a period of emergency.

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And more than three quarters of the states agreed that that was an appropriate thing to do and adopted that provision into their state programs.

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Then in 2023, EPA reversed course.

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And actually it reversed course a couple of times before that.

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But where we are now is that the agency said that no affirmative defenses are permissible.

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and therefore states have to remove the provisions in their state permitting programs and they have to remove affirmative defenses from operating permits that have been issued.

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Now that wasn't based on any new facts.

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If we go too far down the road of the merits, can we talk about standing a bit?

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Certainly.

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To know if there's Article III injury here,

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Don't we need to know that at least one member of the associations in your association operated in a state that had the affirmative defense before the EPA revoked it?

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That is a necessary.

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That would be a necessary.

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element of determining that this particular group has standing.

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However, as I said, three-quarters of the states have these provisions.

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So they're pervasive, and they apply to tens of thousands of sources.

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So any source that emits over 100 tons per year of any pollutant or over 10 tons per year of a hazardous air pollutant or is subject to emission standards for new sources

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all those facilities have to have.

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So it should have been fairly easy then in your opening brief to submit an affidavit from one of those thousands of sources.

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It would have been easy, I guess, but I don't think it's required by the court's rules.

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I do know that the court just proposed to amend section 28 to require that even if

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even if standing is apparent from the record.

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But even even in your reply brief, neither of the two declarations say what I think you just admitted needs to be said, which is here's a factory.

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Name the factory in a state, name the state that had the affirmative defense.

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I think the declaration of Mr Hunt says that

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American Forest and Paper Association has members that are in states that have adopted.

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Name a member, name a state.

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Not now.

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I think now is too late.

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I really just don't understand why.

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The declarations were an improvement over the opening brief, but I think the declaration could have just been one sentence.

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Could have been there's a factory called the

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know, Wichita Topeka Atchison Factory.

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It's located in Wichita and Kansas has an affirmative defense, but it's not there even in the reply brief.

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Well, Your Honor, I don't understand why the declaration of the person in charge of

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of air pollution issues for the trade association's statement that members are located in states that have affirmative defenses and they have affirmative defenses.

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I mean, I think there's a formal reason that I've tried to spell out, but I also think there's maybe a somewhat pragmatic reason.

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And that is what you've given is something that if false, the respondent cannot disprove

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So if you said we have a factory in Topeka and Kansas has an affirmative defense, the government could go look up whether Kansas has an affirmative defense and they could probably find out if you have a factory in Topeka.

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But if you just say we have members in states with affirmative defenses, there's

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You know if that I'm not saying it is false, but if that were false.

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I think there's no way the government could could just prove it and and you know it's somebody kind of like doing a summary judgment days here, where we're deciding facts that either are in dispute and you think it's a.

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To be honest, I more or less trust you, I think, and the declarants.

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But you can imagine a case where someone just alleges these things.

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It's not true.

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Because of lack of specificity, the opposing party can't disprove it.

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Yes, I can imagine that, Your Honor.

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But I don't think that's the case here.

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I mean, this is a coalition, an organization that specifically formed

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in order to address the way EPA deals with emissions during startup shutdown malfunction, these types of situations that's already litigated, this almost analogous issue of whether affirmative defenses are permissible in state implementation plans.

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We get that case very thoroughly.

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You were here.

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And I was here.

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And you were here, too.

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There's no question that there's a case for controversy here.

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There's no question that this organization,

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SSM litigation group, it wouldn't have been formed.

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There's no question that, you know, emitters in 40 states or so have been injured.

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But I'm just not sure that you've shown that your members are among them.

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We don't know who your members are.

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Well, if this were

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I call the court's attention to the American trucking case that's discussed in our reply brief on page seven.

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And there the court said, this is an association, American trucking associations formed to protect interests of its members in the trucking industry.

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And so it's obvious that it has an interest in protecting or challenging

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Regulations in that case, it was the Federal Motor Carrier Safety Administration that adversely trucking truckers in our trucks in all states injured.

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And here there are 10 states where there's no injury.

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And I know you might think, well, 80% sounds like a pretty high probability of injury.

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We heard oral arguments a few weeks ago that the case has not been decided.

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And I think how it will be decided.

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But one of the strong arguments there was that

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the plaintiffs had been impressed into labor on chocolate factories in Africa.

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And then they were suing American chocolate companies.

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And there was a 70% chance that the chocolate companies had bought chocolate from the individual factory.

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sorry, the individual plantation where a particular plaintiff worked, but they couldn't really show that Chocolate Factory had bought from anyone who had bought from that plantation.

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And so the argument was 70% chance is not good enough.

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Here it sounds like there's sort of an 80% chance.

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Again, I think, obviously, EPA, let me, with all due respect, offer a different perspective, and that is, what is the point of this?

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There's no question that, I mean, what constitutional purpose is being, or would be achieved by saying,

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an organization that's specifically formed to challenge this kind of government regulation?

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And usually we ask and you answer, but I'm happy to answer.

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But then I have one more question that I'm going to stop and I'm going to either let you move on to marriage or let my colleagues pick up with marriage questions or standing questions.

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You know, I think we can't give advisory opinions, so we need a case of controversy in order to assure that we have our rules and we also have

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see our club president and it's to make sure that you are representing even though we can be certain that some people have been injured just to make sure that the people before us have been injured and it seems like that would have been quite easy to show if if you just included one sentence because usually it's a little harder if you're not the regulated party here you purport to be a regulated party so it should have been very easy and so my question to you my last question is why didn't you just

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But one sentence in a declaration that says here's the name of the factory, here's the state it is in, and that state has affirmative.

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So there's a like a legal reason, a practical reason, I think.

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Some of the case law that discusses this question, this court's case law, says that requiring information beyond what's in the administrative record is something that

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isn't necessary in all cases in order to avoid filling up the court's um docket or head whatever record here doesn't include any of this information about standing does it in terms of the specific facilities that are regulated well it it does include the fact that that

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thousands and thousands of permits in three quarters of the states that apply to wide range of manufacturing facilities that are adversely affected or that have the potential to have excess emissions from emergencies.

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All that is in the record.

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I just have one question about how do you get around the Twin Rivers decision from 2019 by the circuit?

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in terms of standing?

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There the parties didn't submit information about standing in their opening brief, they did submit some information in reply, and the court said that was not sufficient that they failed to meet their burden.

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Well, but in that case, I think that case was very different because

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That was what the court described as a vaguely described nonprofit that was challenging SEC regulations that were directed not to that nonprofit or its members, but to other people that regulate it.

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regulate corporations and so there wasn't direct connection here we're talking not about some third party coming in and saying hey we don't like what EPA has done to industrial facilities we have industrial facilities coming in and say this is you know here are the reasons why this adversely affects us and is not appropriate let me just return because I didn't say the practical reason and that is because

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in part because these organizations are somewhat fluid.

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And so a trade association may say, and these things, as you know, can carry on for years and years and years.

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And at the beginning, one group says, OK, we're willing to put money into this.

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And then somewhere along the line, they say, we don't have any budget.

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We're going to drop out.

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So there is a fluidity to it.

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paying money because their members believe they're adversely affected by this rule.

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That's the whole purpose for this entity.

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So I do think consistent with the court's precedent, maybe not consistent with the new rule that's going to be, circuit rule that's been proposed, but consistent with the court's precedent and the current circuit rule, I think we have done what was required.

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And we are under, again, under the court's precedent

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and the American Libraries Association case, among others, said it is appropriate to respond to questions about standing through declarations provided in the reply.

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So yeah, back to the merits.

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Let me just say that, first of all, EPA's action was based on

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Again, not on any new information or new policy reasons, but on his conclusion that it was required to get rid of the affirmative defense in the Title V regulations because of this court's 2014 NRDC decision.

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EPA also said it will be consistent now with the way we're handling affirmative defenses in state implementation plans.

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Well, both of those things have changed and yet EPA still wants the court to uphold its action rather than remand it.

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The court in that SSM zip call case made a distinction between affirmative defenses like the one in Arkansas that apply to liability in general

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and affirmative defenses that courts said fall in a different category that conflict with the PAC's allocation of the responsibility for setting penalties to the district courts.

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And those are affirmative offenses that just deal with penalties.

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In Florida Electric, it was at least theoretically possible for a SIP to not include an emission limitation.

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We read the statute to not require it.

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here, is it possible for a Title V permit to not include an emission limitation?

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I think it may be possible, but in the Florida Electric case, the question of whether SIP requires or had to have emission limitations was an issue that was relevant to other provisions, but it wasn't relevant to the question of whether an affirmative defense was acceptable.

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So, for example, the court approved, upheld EPA's issuance of SIPP calls to states that had affirmative defense provisions that applied just to penalties.

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Despite the fact that there wasn't any discussion of whether that affirmative defense went to or was involved in a SIPP that had to have emission limitations in it or not.

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That was a different issue.

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The statute here says a Title V permit shall include admission limitations.

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So it certainly reads like you can't get a permit unless the permit has admission limitations.

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I think you should assume that Title V permits have admission limitations.

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OK.

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And that they are required to have admission.

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Should we assume that?

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It says shall include.

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I'm not sure but it doesn't matter so I'll accept that.

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Okay well then if the Title V permit has to include an emission limitation and in Sierra Club 2 the general duty exception didn't count as a continuous emission limitation.

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Why do these affirmative defenses count as continuous mission limitations?

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In other words, I guess my question is, what's the difference between the general duty exceptions in Sierra Club 2 and the affirmative defenses here?

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Okay, I understand the question and I think it's inherent in the nature of an affirmative defense.

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Affirmative defense is something where the

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The defendant acknowledges noncompliance with a limitation of some sort, and yet asserts a defense that excuses that.

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And that is different from an exemption.

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The issues in the Sierra Club case, that general provision was something that said, any time there is emissions associated with a startup shutdown or malfunction, then the emission limitation

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that would otherwise apply doesn't apply.

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That isn't what the affirmative defense does.

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I think the other thing I would say is that this court now has the duty to determine what's the best reading of the statute.

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And EPA's reading of the statute is that unless a source can be penalized for exceeding some numerical limit

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as a result of an emergency and a failure of the technology that the source had, through no fault of their own, despite the source's proper installation and use of technology nevertheless succeeded.

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Unless the source can be penalized for that, then the source is not subject to an admission limitation.

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That's not really a logical or a grammatical.

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potentially strong argument about the practical effects of what EPA has done here.

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And I think you may also have a potentially strong argument about the meaning of the text if Sierra Club 2 weren't precedent.

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But you said our duty is to interpret the precedent, which is true enough, but we have to interpret the precedent in a way

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that does not overrule Sierra Club 2, which binds us.

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And I think that's maybe not, I think the best way for you to win without us overruling Sierra Club 2, which we can't do, is to show that the general duty in Sierra Club 2, which required minimizing emissions,

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is somehow different than the affirmative defense condition here, which requires minimizing excess emissions.

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That seems like slicing the salami very thin.

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Well, first of all, EPA acknowledges that the statute doesn't say anything about whether a Title V permit can contain an affirmative defense or not.

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definition of a mission limitation that was interpreted in the Sierra Club case was interpreted in conjunction with Section 112 of the Clean Air Act.

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And there's no such conjunction here.

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There is a distinction between affirmative defense and a regulatory exemption.

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And EPA in this action, up until the court's decision last year, EPA's position was, this affirmative defense does not modify the emission limitations in any way.

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That's EPA specifically said that as quoted in our brief.

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So EPA's position was, this is an affirmative defense.

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It's not acceptable because it conflicts with court's responsibility to determine penalties.

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It also doesn't modify the emission limitation in any way.

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So I think you've got that EPA statement is consistent with the nature of an affirmative defense.

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It's consistent with the language of the affirmative defense, which doesn't say emission limitations don't apply.

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It says... Mr. Frey, what do we do about Florida Electric, which says that an affirmative defense is an exemption?

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Well, I mean, even assuming I agree with you that generally in an affirmative defense and exemption are two very different legal concepts.

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The Florida Electric Court says an affirmative defense is an exemption.

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I mean, is that only for the purposes of the NRDC rationale?

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Or why would it be limited only to the NRDC rationale?

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It says if Florida defense functions as an exception,

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And it concluded that the states could have affirmative defenses in their SIPs that applied to liability generally and not to penalties.

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So I don't see the conflict.

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And again, regardless of the precedent on a different issue, there is no precedent that directly applies to Title V permits or to affirmative defenses.

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in Title V permits.

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And again, EPA itself, its reason, its stated reason is we believe that this affirmative defense doesn't change any emission limitation, but it does interfere with the district court's ability to determine penalties.

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For the electric case, the court decided, well, that's not true if the

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Affirmative defense applies to all liability, not just affirmative defense.

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So it doesn't impringe on the judicial power, but if an affirmative defense is an exemption, then it runs into the Sierra Club problem.

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Doesn't it?

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Or why doesn't it, in your view?

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Well, first of all, I would say I don't think the court needs to get to that point, because you have to

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review EPA's action on the basis that EPA stated and although, you know, EPA says that it now has a different understanding of the way things work.

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The understanding that is stated in the preamble to the proposed and final rules is inconsistent with Ford Electric and I think the case needs to be remanded for that reason in any event.

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But in terms of inconsistency with the Sierra Club decision,

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and the definition of an emission limitation as being something that limits emissions on a continuous basis.

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Again, I think there's a very clear distinction between a generic exemption that says emission limitations for hazardous air pollutants don't apply if they're exceeded because of sort of shutdown or malfunction.

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And this affirmative defense for emergencies, which is narrow,

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and which doesn't say these limitations don't apply.

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To the contrary, it says, you have a defense if you've violated, if you exceeded this limitation, which does apply.

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So the two are very different situations.

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And again, I think the court has to evaluate whether it's the reasonable reading of the statute to say something is not an omission.

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These sources that have Title V permits with the affirmative defense provision are not subject to emission limitations.

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Just because on rare occasions, if there's an emergency that causes an exceedance, they won't be subject to liability.

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And I think the other thing that we need to consider when interpreting the statute is the legislative history.

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Legislative history was this on a continuous basis was added specifically to deal with situations

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where facilities were using intermittent controls that they only operated certain times during certain conditions, no one would say that a facility with a Title V permit that has an affirmative defense provision doesn't have continuous, isn't operating continuous controls just because if there happens to be an emergency that causes that initial limitation to be exceeded, the source won't be penalized for that.

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Can I just make sure I have your answer on this question?

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The material difference between minimizing excess emissions and minimizing emissions.

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This case involves a condition about minimizing excess emissions.

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Sarah Club 2's general duty, if I recall, involved minimizing emissions.

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your position, I think, is it your position that there's not much of a material difference in any between minimizing excess emissions and minimizing emissions?

[00:27:14] Speaker 02:
Well, I think there is a difference.

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But as it was implemented, there wasn't really a difference because

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There was also a policy that said there's no requirement to reduce emissions beyond, you know, what the permit allows.

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You don't have to go just because you had a malfunction.

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You don't have to reduce emissions lower than what you're permitted to emit.

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So I think functionally they're the same.

[00:27:43] Speaker 06:
And there's not a legally material difference that would affect the outcome of this case.

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Is that fair?

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between reducing emissions and reducing excess emissions.

[00:27:57] Speaker 02:
Yes, but I'm not sure why you're focusing on the part of the affirmative defense that requires facilities to reduce excess emissions because that's, I mean, that's a one of many conditions, numerous conditions to asserting successfully asserting affirmative defense, but it's not like an essential

[00:28:22] Speaker 02:
It's not the function of the affirmative defense to require excess submission.

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The function of the affirmative defense is to recognize, and this only applies to technology-based limitations, is to recognize that Congress intended certain limitations under the Clean Air Act to be based on what can be accomplished with available technology.

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And if that available technology, through no fault of the facility, can't meet the limitation due to an emergency, then that shouldn't be penalized

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that's contrary to the intent of technology-based emission limitations.

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That's the fundamental nature.

[00:28:57] Speaker 05:
Are there any emissions limitations for technology-based settings that derive from someplace other than 7411 or 7412?

[00:29:09] Speaker 02:
Yes, Your Honor, there are.

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So, for example, state implementation plans in order to

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Make sure that ambient air quality meets national standards.

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States in their implementation plans have to impose requirements on sources using RACT, it's called Reasonably Available Control Technology.

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That's one example.

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Another example is under the new source provisions in subpart C of Title I of the Act,

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when you install a new source or substantially modify an existing source, you have to use the best available control technology.

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So if a source has ever been modified to a significant extent or was built after 1975, I guess, that source would have in its permit technology-based mission limitations that don't derive from sections 7411 or 7412, but derive from section

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165, the Provincial Significant Deterioration requirement to have best available control technology.

[00:30:21] Speaker 02:
So that's the NSPS then?

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No, NSPS is categorical.

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The Provincial Significant Deterioration requirements are facility specific.

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So they apply whether you're making steel or making

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You know, diapers, they apply if you increase your emissions beyond a certain amount.

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And if you do, you have to install this available.

[00:30:46] Speaker 05:
Has this emergency defense ever been applicable to those standards?

[00:30:53] Speaker 02:
Well, I think it's, those standards are incorporated into a Title V permit, if they exist, if the facility is subject to one of those standards.

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They're incorporated as an applicable requirement, incorporated into the Title V permit.

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And so under the, at least under some interpretations of the affirmative defense, if a facility exceeded that limitation that was established in a case by case,

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new source review permit permitting context.

[00:31:25] Speaker 02:
Um, if it later exceeded that because of an emergency, it could assert the affirmative defense in the title five permit.

[00:31:33] Speaker 02:
It would, it would there.

[00:31:34] Speaker 02:
Yes.

[00:31:36] Speaker 05:
And that has not been litigated, I guess.

[00:31:39] Speaker 02:
Uh, no.

[00:31:40] Speaker 02:
And one of the things that the commenters said, including, uh, groups are supporting this litigation.

[00:31:47] Speaker 02:
is if there's a problem, if EPA thinks that there are certain kinds of emission limitations that shouldn't be subject to an affirmative defense, then the proper thing to do is to consider whether there's a less burdensome way of addressing that instead of getting rid of the affirmative defense entirely if EPA believes that, for example, a case-specific

[00:32:13] Speaker 02:
technology-based limit should not be subject to the affirmative defense for emergencies that could be carved out, but EPA said no, we're not going to even consider doing that because we're prohibited from having affirmative defense by the NRDC decision because affirmative defenses interfere with the enforcement.

[00:32:35] Speaker 05:
So the UPS foreclosed that as far as they're concerned even with respect to these

[00:32:40] Speaker 05:
limitations coming from outside 7411, 7412.

[00:32:43] Speaker 02:
I'm sorry, I didn't understand.

[00:32:47] Speaker 05:
If I understood you, then the EPA has, as far as it's concerned, already repudiated the idea of an affirmative defense to the standards that we've been discussing that do not derive directly from 7411 or 12.

[00:33:04] Speaker 02:
Well, yeah, it's reputed aided by telling the states they can't have affirmative defense provisions and permits any across the board across the board.

[00:33:12] Speaker 03:
Yes, sir.

[00:33:14] Speaker 03:
And the EPA is new rationale.

[00:33:19] Speaker 03:
Wouldn't apply to things that are outside of.

[00:33:23] Speaker 03:
Section 111 and 112.

[00:33:26] Speaker 03:
Because those requirements don't necessarily have a continuity requirement.

[00:33:31] Speaker 02:
Well,

[00:33:33] Speaker 02:
I don't think EPA has addressed that specifically.

[00:33:35] Speaker 02:
And I hesitate to speak for them.

[00:33:37] Speaker 02:
But I think their position is that anything that constitutes an emission limitation, regardless of the source of that limitation, has to be continuous.

[00:33:49] Speaker 02:
And it's not continuous unless a source can be penalized if it has an emergency that causes it.

[00:33:55] Speaker 05:
But the continuous terminology derives from 111 and 112, correct?

[00:34:02] Speaker 02:
Well, the continuous, the notion that a, quote, discontinuity, which is a term EPA uses but isn't used in the precedent, the notion that a discontinuity means that something is not an admission limitation, that derives from the court in the Sierra Club decision looking at section 112, the hazardous air pollutant emission

[00:34:31] Speaker 02:
requirements and the definition of emission limitations in Section 302 together, reading them together.

[00:34:40] Speaker 03:
Continuous is also in Section 302, is that right?

[00:34:43] Speaker 03:
The word continuous?

[00:34:45] Speaker 02:
Yes, Section 302 says an emission limitation is something that limits the amount of pollutants emitted on a continuous basis.

[00:34:54] Speaker 02:
And again, the reason Congress added that, and the Sierra Club Court noted that in its opinion,

[00:35:00] Speaker 02:
and cited to the congressional record.

[00:35:02] Speaker 02:
And it's also addressed in other cases that we cited.

[00:35:06] Speaker 02:
The reason that's in the statute is because in the early days of the Clean Air Act before the 1977 amendments, people had said, well,

[00:35:17] Speaker 02:
This ozone pollution is only a problem in the summertime.

[00:35:21] Speaker 02:
So we're going to install controls, but only use them during the summer.

[00:35:25] Speaker 02:
We don't want to waste our money on running them in the wintertime in the courts.

[00:35:29] Speaker 02:
So that's not acceptable.

[00:35:30] Speaker 02:
If you've got emission controls, they need to be used continually and not just on an intermittent or sporadic or periodic basis.

[00:35:41] Speaker 05:
I think you made the point in your brief that the EPA has recognized

[00:35:46] Speaker 05:
with and wants the inherently fallible nature of the kind of equipment that's mandated.

[00:35:53] Speaker 02:
Yes, Your Honor.

[00:35:53] Speaker 02:
And in fact, even in this rule that we're challenging, EPA recognizes that.

[00:35:58] Speaker 02:
But they say, you know, nevertheless, the statute, the statutes, Congress's decision, it's Congress that told us

[00:36:09] Speaker 02:
You know, we can't recognize formally that limitation of technology-based limits because that would interfere with the district court's authority to determine appropriate penalties.

[00:36:20] Speaker 02:
And so the EPA recognizes that that is a, fallibility of the technology is an inherent aspect that the agencies recognize for, you know, since like,

[00:36:36] Speaker 02:
early years of the Clean Air Act, but they say they can't deal with that through the affirmative defense provision.

[00:36:43] Speaker 02:
They can only deal with it through enforcement discretion, which of course doesn't apply to citizen suits to enforce these provisions.

[00:36:55] Speaker 03:
We'll give you some time on rebuttal.

[00:36:57] Speaker 02:
Thank you.

[00:37:15] Speaker 04:
Thank you, Your Honor.

[00:37:16] Speaker 04:
May it please the court.

[00:37:16] Speaker 04:
My name is Dan Durkey, U.S.

[00:37:18] Speaker 04:
Department of Justice.

[00:37:18] Speaker 04:
With me at council table is Michael Lee, CPA's Office of General Counsel.

[00:37:24] Speaker 04:
I'd like to start with standing.

[00:37:25] Speaker 04:
We do think that the showings that the plaintiff has made, petitioners made, is inadequate under the court's precedence.

[00:37:32] Speaker 04:
Notably, as the court mentioned, Twin Rivers Paper Company.

[00:37:36] Speaker 04:
Twin Rivers said basically to have late affidavits or declarations in the reply, you need to show good cause.

[00:37:44] Speaker 04:
Good cause can be if the party mistakenly reasonably but mistakenly believe the initial filings were sufficient to demonstrate standing or if the party reasonably assumed it was self evident from the record.

[00:37:57] Speaker 04:
Because the court noted there's nothing in the administrative record that mentions this party.

[00:38:01] Speaker 03:
But here, unlike in Twin Rivers, arguably here, the theory of standing is very clear.

[00:38:06] Speaker 03:
So we don't have some third party group that's incidentally affected by the regulation.

[00:38:13] Speaker 03:
These are directly regulated.

[00:38:16] Speaker 03:
parties subject to Title VII, Title V permits.

[00:38:21] Speaker 03:
And so the only thing we don't have in the opening briefs is the specific facilities.

[00:38:27] Speaker 03:
But the theory of standing and the private harm to private sources is entirely self-evident.

[00:38:36] Speaker 03:
I mean, these are directly regulated parties harmed by the rule.

[00:38:39] Speaker 04:
That's true.

[00:38:39] Speaker 03:
Or arguably harmed by the rule.

[00:38:41] Speaker 04:
That's true.

[00:38:42] Speaker 04:
And as the court said, it probably would have been pretty easy for the petitioner to connect the dots.

[00:38:47] Speaker 04:
The problem, I think, is that the court's precedents are pretty clear, not just Twin Rivers, Sierra Club case from 2002 that we mentioned in our brief.

[00:38:56] Speaker 03:
What about the CARE versus FAA case from 2004?

[00:38:58] Speaker 04:
That was, yeah, I think if I'm

[00:39:07] Speaker 04:
Yeah, the communities against runway expansion, the care case.

[00:39:10] Speaker 04:
Yeah.

[00:39:11] Speaker 04:
So in that case also, there were opening declarations.

[00:39:15] Speaker 04:
In that case, the court said that the supplement shored up deficient opening declarations and made standing patently obvious and irrefutable, and there was no prejudice.

[00:39:23] Speaker 04:
You don't get past the first point.

[00:39:25] Speaker 04:
The petitioner could have put in a declaration, chose not to.

[00:39:29] Speaker 04:
That was their choice.

[00:39:29] Speaker 04:
It was their burden.

[00:39:30] Speaker 04:
And the court's precedents are clear that you take that risk if you're a party.

[00:39:34] Speaker 03:
But isn't standing here patently obvious?

[00:39:36] Speaker 03:
I mean, the EPA doesn't question that a Title V permitted source would have standing.

[00:39:42] Speaker 03:
And I don't know how you could challenge that.

[00:39:44] Speaker 04:
Right.

[00:39:44] Speaker 04:
That's not the problem, though, is we don't know who.

[00:39:47] Speaker 04:
And as counsel said, this litigating group is a bit of a moving target.

[00:39:53] Speaker 04:
Associations move in and out.

[00:39:55] Speaker 04:
And it's not an association or federation of individual sources that have permits.

[00:40:00] Speaker 04:
It's an association of associations.

[00:40:02] Speaker 04:
They have to go even deeper.

[00:40:03] Speaker 03:
In our case, though, isn't the conclusion of standing here basically irrefutable?

[00:40:07] Speaker 03:
I mean, it seems irrefutable because EPA is not refuting that such sources would have standing.

[00:40:13] Speaker 03:
Of course, it would have been better for petitioners to do a better job in giving clearer statements and pointing out some facility that was regulated.

[00:40:25] Speaker 03:
But I'm not sure how there's no standing here.

[00:40:31] Speaker 04:
I think it's not just that it would have been better, but it is contrary to the court's precedence.

[00:40:36] Speaker 04:
I think if the court makes a fine standing here, it's liberalizing standing case law by saying, if you're an association or an association of associations, if it's close enough, if we can kind of figure it out, that's good enough.

[00:40:50] Speaker 04:
And that's not what the court's precedents say.

[00:40:53] Speaker 04:
The court's precedents are fairly demanding and rigorous, whether it's 70% or 80% or whatever the percentage chance is.

[00:41:01] Speaker 04:
It's not hard, but it's rigorous.

[00:41:03] Speaker 04:
It's not hard because all they needed to say was, here's a source with a permit, but it is rigorous and that rigor is important.

[00:41:10] Speaker 03:
One of these cases, though, that emphasize that rigor are about third party standing, not about directly regulated entities that are the direct objects of regulation.

[00:41:24] Speaker 03:
And there is an important difference for Article III purposes between private parties that are directly regulated and associations that have members with some third party harm.

[00:41:35] Speaker 03:
I mean, those are different conceptually.

[00:41:38] Speaker 04:
Those are.

[00:41:39] Speaker 04:
And the case law recognizes that typically a regulated party, the burden to show standing is much easier than a third party.

[00:41:47] Speaker 04:
That's true.

[00:41:47] Speaker 04:
But again, we get back to the point of we wouldn't even be having this conversation if we had a declaration that identified any one of those individual companies.

[00:41:57] Speaker 04:
And our point simply is if the court's not going to apply the precedent as it's written in this case, it opens up a whole other

[00:42:08] Speaker 04:
line of exemptions, exceptions to what is, I think, pretty clear rules for how you plead and demonstrate standing.

[00:42:15] Speaker 04:
There's no reason to make that exception here.

[00:42:18] Speaker 05:
If the petitioners recently but mistakenly thought it was self-evident that they were being regulated, why isn't it sufficient that if the administrative record identifies a particular entity,

[00:42:35] Speaker 04:
The problem, Your Honor, is that the administrative record has a comment letter from an association called the SSM Coalition, which seems like pretty similar, but it's not the SSM litigation group.

[00:42:48] Speaker 04:
And the declarations that they actually submitted in their reply expressly say those are different entities.

[00:42:55] Speaker 04:
For whatever reason, these companies and these associated trade associations created two separate entities, the coalition and the litigating

[00:43:03] Speaker 04:
Coalition made comments in the record.

[00:43:06] Speaker 04:
The litigating group did not.

[00:43:08] Speaker 04:
If this had been brought in the name of the coalition, they probably would have had a much better argument that, well, there's a comment letter from us in the record, so we reasonably thought that was enough.

[00:43:17] Speaker 05:
But they made that choice.

[00:43:19] Speaker 05:
So what about the Vinyl Institute?

[00:43:21] Speaker 04:
Vinyl Institute apparently is not a member of either the coalition or the litigating group.

[00:43:27] Speaker 04:
The coalition's letter

[00:43:32] Speaker 04:
During the rulemaking identifies the members of the coalition vinyl groups not in there.

[00:43:37] Speaker 04:
That's why vinyl groups submitted their own their own comment letter, but they're not a party.

[00:43:42] Speaker 04:
It's only the one part.

[00:43:43] Speaker 04:
And again, which reminds me, I wanted to mention that there was a question about the Florida electric case and counsel said, well, you know,

[00:43:53] Speaker 04:
SSM litigating group was in the Florida electric power case, the SIP call case.

[00:43:57] Speaker 04:
Nobody questioned us there.

[00:43:58] Speaker 04:
There was dozens of parties in that case.

[00:44:01] Speaker 04:
So there was no reason to look at this party in particular.

[00:44:03] Speaker 06:
Are there any, is there any Title V permitted sources in states that don't have the affirmative defenses?

[00:44:15] Speaker 04:
Are there any Title V permitted sources in states?

[00:44:20] Speaker 04:
I actually, I don't know.

[00:44:22] Speaker 04:
I think the record does have a list of what states this affects.

[00:44:27] Speaker 04:
I don't know.

[00:44:30] Speaker 04:
I could speculate, but I don't know.

[00:44:32] Speaker 04:
I don't think that's specific information in the record.

[00:44:36] Speaker 04:
It does seem at least possible.

[00:44:39] Speaker 06:
You know, one of these 10 states that doesn't have affirmative defenses has a title five permitted source.

[00:44:47] Speaker 06:
I mean, yeah, it seems.

[00:44:48] Speaker 06:
And if that if that source were to file this suit, they would not have standing, right?

[00:44:56] Speaker 04:
Unless I mean,

[00:44:59] Speaker 04:
Potentially, they could say, I'm a source and I have a Title V permit and it's in a state that doesn't allow the Title V affirmative defense.

[00:45:11] Speaker 04:
So what's my injury?

[00:45:14] Speaker 04:
It's hard to think.

[00:45:15] Speaker 04:
Maybe they could say, well, they'd like to have it.

[00:45:18] Speaker 04:
They'd like to apply for it.

[00:45:19] Speaker 04:
Maybe there's a way they could get a federal permit.

[00:45:23] Speaker 04:
or there's other permit issuing entities besides the state.

[00:45:27] Speaker 04:
I mean, these are friendly questions.

[00:45:30] Speaker 04:
Yeah, it's hard to say.

[00:45:31] Speaker 06:
It seems highly likely that in one of the 10 states without affirmative defense, there's some polluter that needs a Title V permit.

[00:45:41] Speaker 06:
And that source would probably not have an injury caused by the repeal of the affirmative defenses, because they were in a state that didn't have the affirmative defenses to begin with.

[00:45:54] Speaker 06:
So I think that means petitioners here need to prove more than that they are Title V sources, Title V permitted sources.

[00:46:01] Speaker 06:
They need to prove under a summary judgment standard that they are a Title V permitted source in a state with an affirmative defense.

[00:46:10] Speaker 06:
which is not every state.

[00:46:12] Speaker 04:
Which is not every state and is not in the declarations, as the court said earlier.

[00:46:16] Speaker 04:
It's not in the declaration and wouldn't be hard to do to get back to Judge Routh's point.

[00:46:20] Speaker 04:
It might be obvious.

[00:46:22] Speaker 04:
It might be indisputable if we had that information.

[00:46:27] Speaker 04:
In fact, I think if we had that information, we probably wouldn't dispute it, but we don't have that information.

[00:46:30] Speaker 04:
So why should the government, why should the court

[00:46:34] Speaker 04:
assume why should it be on the burden of the court if the parties don't raise standing?

[00:46:37] Speaker 04:
Why should it be the burden of the court to connect those dots?

[00:46:41] Speaker 04:
I think the case law says it's not the court's burden, it's the party's burden and they didn't carry it.

[00:46:46] Speaker 06:
What's the difference between an emergency and a malfunction?

[00:46:49] Speaker 04:
An emergency is a type of malfunction.

[00:46:53] Speaker 04:
There's more requirements

[00:46:57] Speaker 04:
around the definition of emergency.

[00:46:59] Speaker 04:
It has to be sudden, which I think a malfunction doesn't necessarily have to be.

[00:47:03] Speaker 04:
Those are both defined terms in the regulation.

[00:47:06] Speaker 04:
So I think the parties all kind of approach this as it's a subset of a malfunction.

[00:47:12] Speaker 04:
It's a type of malfunction that is distinct.

[00:47:14] Speaker 04:
Unpredictable malfunction?

[00:47:15] Speaker 06:
I'm sorry?

[00:47:16] Speaker 06:
Is it like an unpredictable malfunction?

[00:47:17] Speaker 06:
Is that what an emergency?

[00:47:18] Speaker 04:
Well, a malfunction I think can also be unpredictable.

[00:47:22] Speaker 04:
An emergency is more of a

[00:47:24] Speaker 04:
I think emergency has a suddenness requirement.

[00:47:27] Speaker 04:
And I can pull up the definition of emergency and kind of read them side by side.

[00:47:32] Speaker 04:
But I think that's one of the words and the definition of emergency that I don't think is in malfunction.

[00:47:41] Speaker 06:
What are, kind of as a practical matter, what are these sources supposed to do now?

[00:47:45] Speaker 06:
There's some act of God emergency they can't control.

[00:47:49] Speaker 06:
And as a result, they emit more than they're allowed to emit.

[00:47:55] Speaker 06:
And then, uh, you know, they get, they get sued if not by the, by the EPA.

[00:48:00] Speaker 06:
I take it that, uh, some kind of, you know, organization like the Sierra club could sue them.

[00:48:09] Speaker 06:
Do they just depend on the good graces of the court that hears that case to impose a zero penalty or what, what, what's supposed to, what's supposed to happen then since they haven't really done anything wrong.

[00:48:22] Speaker 04:
Well, it's not a matter of whether anybody's done anything wrong or there's a guilt component to it or anything like that, because emergencies and malfunctions kind of assume that you've taken all the steps you're supposed to take, that you're maintaining your equipment correctly.

[00:48:43] Speaker 04:
That's a problem that council raised and that EPA has grappled with.

[00:48:48] Speaker 04:
The inherent failability of technology is not new.

[00:48:52] Speaker 04:
And it's not something that EPA has ignored.

[00:48:54] Speaker 04:
EPA discussed in the preamble to this rule and recognized that that is a problem.

[00:48:59] Speaker 04:
And it's a problem the court has grappled with.

[00:49:01] Speaker 04:
What do you hope happens there?

[00:49:02] Speaker 04:
Well, I think I would point the court to NRDC and US Sugar, where the court said that essentially, enforcement discretion is what Congress left.

[00:49:18] Speaker 04:
I guess there's two aspects of there's a Congress left and intended enforcement discretion to be a real remedy that if I may work for an EPA suit, but that wouldn't work for a Sierra Clemson.

[00:49:28] Speaker 04:
Not necessarily.

[00:49:29] Speaker 04:
I mean, any any party has to weigh their discretion and not bring litigation against polluters.

[00:49:36] Speaker 04:
Well, they have to make a decision just like anybody else.

[00:49:39] Speaker 04:
Is this a valid case?

[00:49:40] Speaker 04:
Is this a worthwhile case?

[00:49:42] Speaker 04:
Putting that aside, there's still the court.

[00:49:45] Speaker 04:
For penalties, it's still an equitable rem.

[00:49:47] Speaker 04:
It's still within the court's discretion under the statute about how much of a penalty to apply, if any.

[00:49:53] Speaker 04:
And as we say in our brief, even without an affirmative defense,

[00:49:58] Speaker 04:
source that's in this position can still make all those same arguments to the fact finder, to the ultimate decision maker.

[00:50:04] Speaker 04:
Not having affirmative defense doesn't mean your hands are tied.

[00:50:08] Speaker 04:
It doesn't mean you can't bring to bear all of those equitable arguments.

[00:50:11] Speaker 04:
You can't describe everything you did right and how it was completely out of your control.

[00:50:15] Speaker 06:
If a polluter has done everything that could reasonably be expected of them and they nevertheless get sued for exceeding an emission limitation during an emergency,

[00:50:27] Speaker 06:
then your hope would be that the court would impose zero penalties, something like that.

[00:50:36] Speaker 04:
I would say I would leave it to the discretion of the court.

[00:50:39] Speaker 04:
I think it's going to be a fact specific.

[00:50:41] Speaker 04:
It would be a fair result in that case.

[00:50:44] Speaker 04:
If the hypothetical is that there was nothing anybody could do, there's no harm, everything was right, then if a court said,

[00:50:54] Speaker 04:
In my discretion, I'm going to apply the factors that the statute says I should apply, and it's a zero penalty.

[00:51:01] Speaker 04:
That's what Congress allowed for.

[00:51:03] Speaker 04:
Is there no provision for damages?

[00:51:08] Speaker 04:
There's depending on, well, when we're talking about affirmative defenses, usually we're talking about penalties, but there can be other relief.

[00:51:15] Speaker 04:
There could be, potentially there could be other relief.

[00:51:18] Speaker 04:
I'm not sure about damages in the sense of,

[00:51:22] Speaker 04:
monetary damages, but injunctive relief potentially, depending on what the particular violation is and what the cause of action is, what the remedies are that are available.

[00:51:34] Speaker 05:
Well, if we're talking about hypothetical acts of God and good faith and having done everything that one could do, it's hard to imagine there's any room for equitable relief, but there may have been.

[00:51:50] Speaker 05:
monetary or monetizeable, I should say damage, correct?

[00:51:54] Speaker 04:
Well, it's so if there's a if there's an act of God and there's an exceedance and somebody's harmed and they wanted to sue for like emotional distress or damages like that, I don't think that's that's not the kind of damages and affirmative sense that we're contemplating here.

[00:52:10] Speaker 04:
That would be a separate

[00:52:11] Speaker 04:
loss, you'd have to have a cause of action against the source for that.

[00:52:14] Speaker 04:
We're talking about damages for exceeding your permit.

[00:52:18] Speaker 05:
But the exceedance could have adverse effects on neighbors.

[00:52:24] Speaker 05:
It could.

[00:52:25] Speaker 05:
It could.

[00:52:27] Speaker 04:
And that could give rise to a cause of action for the confectioner or for whoever the neighbor is.

[00:52:33] Speaker 04:
Again, that would be a fact-specific question of

[00:52:38] Speaker 04:
what cause of action you have, maybe federal, maybe not federal.

[00:52:43] Speaker 03:
About EPA's legal rationale here.

[00:52:46] Speaker 03:
So EPA concedes that its primary

[00:52:51] Speaker 03:
reason for thinking that the affirmative defenses was unlawful no longer works after the Florida Electric case, right?

[00:52:58] Speaker 03:
So, and I guess, I mean, reading Florida Electric, you know, it says that an affirmative defense is an exemption, but it says that in the context of talking about the NRDC, you know, whether this is, you know, inappropriate, whether this infringes on the judicial power.

[00:53:17] Speaker 03:
So I'm not sure that I read Florida electric to say an affirmative defense is an exemption for all purposes, you know, or that it's equivalent for all purposes.

[00:53:28] Speaker 04:
We're not saying that either honor.

[00:53:29] Speaker 03:
Okay.

[00:53:30] Speaker 04:
Yeah, we agree with that Florida electric said that.

[00:53:33] Speaker 04:
Within the box of affirmative defenses was labeled as an affirmative defense.

[00:53:37] Speaker 04:
What's considered an affirmative.

[00:53:38] Speaker 04:
Well, let me take a step back and exemption and affirmative defense are different.

[00:53:41] Speaker 04:
I mean, there's real differences and affirmative defense only applies if you're in an enforcement action and the burden of proof is on the source and exemptions in the actual underlying important.

[00:53:51] Speaker 04:
legal distinctions, but what Florida electric said was within that box of affirmative defenses, there's two kinds.

[00:54:00] Speaker 04:
There's an affirmative defense that is only to penalty slash remedy.

[00:54:04] Speaker 04:
And there's one that's a complete defense.

[00:54:07] Speaker 04:
And the one that's a complete defense has to be analyzed the same way as an exemption in the underlying stance.

[00:54:13] Speaker 03:
Right, but even, right, but for the purposes of whether that complete affirmative defense infringes on the judicial power, it doesn't necessarily mean that a complete affirmative defense is an exemption for thinking about whether an emissions limitation is operating on a continuous basis under Sierra Club.

[00:54:37] Speaker 04:
Well, I think an affirmative offense that's a complete defense

[00:54:43] Speaker 04:
The reason why that's illegal is not because it's an intrusion on the judicial power.

[00:54:50] Speaker 04:
It's only the affirmative defense that limits remedies.

[00:54:53] Speaker 04:
That's NRDC.

[00:54:55] Speaker 04:
And Florida Electric adopted that reasoning from NRDC and said that analysis of limiting a district court's discretion is only because you're limiting the court's ability to oppose penalties.

[00:55:09] Speaker 04:
But Florida Electric went on to say,

[00:55:11] Speaker 04:
that if it's the type of affirmative offense that provides a complete defense, that's functionally an exemption.

[00:55:18] Speaker 04:
And that raises different questions.

[00:55:19] Speaker 04:
And the question it raises is, is it continuous?

[00:55:23] Speaker 03:
But it doesn't answer that question.

[00:55:25] Speaker 04:
Exactly.

[00:55:25] Speaker 04:
It doesn't answer that question because a SIP context, which is what that case is, is very different.

[00:55:29] Speaker 03:
It is very different.

[00:55:30] Speaker 03:
But it doesn't answer that question.

[00:55:31] Speaker 03:
And EPA is defending the rule now.

[00:55:37] Speaker 03:
You know, essentially on the grounds that Sierra Club and Florida Electric legally require this result.

[00:55:47] Speaker 03:
And I don't see Florida Electric, you just said Florida Electric doesn't decide this question.

[00:55:53] Speaker 03:
So where does that leave EPA's legal argument here?

[00:55:58] Speaker 04:
I would say Florida Electric clarifies or provides the framework for that decision, for that distinction.

[00:56:05] Speaker 04:
That's a framework of looking at

[00:56:08] Speaker 04:
You're opening that box of affirmative defenses and seeing there's two kinds.

[00:56:11] Speaker 04:
That's what Florida Electric clarified.

[00:56:15] Speaker 04:
It's Sierra Club that provides the rule for decision though, and that's not new.

[00:56:20] Speaker 03:
Well, Sierra Club provides the rule for decision for things that are actual exemptions.

[00:56:25] Speaker 03:
But an affirmative defense, as you said, and I agree, is maybe a complete affirmative defense is functionally an exemption, but it isn't an exemption.

[00:56:33] Speaker 03:
It's legally, importantly different from that.

[00:56:36] Speaker 03:
And this rule, even if we think that EPA referred to the Sierra Club rationale and the alternative, it doesn't really explain how a complete affirmative defense should qualify as an exemption.

[00:56:52] Speaker 03:
under the Sierra Club rationale.

[00:56:53] Speaker 03:
So at a minimum, there's no reasoning about this.

[00:56:56] Speaker 03:
I think there are a lot of open questions about that under Florida Electric.

[00:57:01] Speaker 03:
So I mean, how does EPA support this rule?

[00:57:06] Speaker 03:
We're just kind of with this sort of passing reference to Sierra Club.

[00:57:12] Speaker 04:
Well, I disagree with one of the threshold points that your honor made about Florida electric.

[00:57:18] Speaker 04:
I think Florida electric is expressed and clear that if something that's structured as an affirmative defense operates as a complete exemption, it has its legality has to be analyzed as a complete exemption.

[00:57:33] Speaker 04:
that I don't think we can get around that.

[00:57:35] Speaker 03:
Florida Electric says that in the context of judicial remedies and judicial power under NRDC.

[00:57:41] Speaker 03:
It doesn't say that for the purposes of continuity under Sierra Club.

[00:57:50] Speaker 03:
And they might well be different because of what we've already discussed, which is that affirmative actions and exemptions are legally different concepts.

[00:58:00] Speaker 03:
So that would at least seem to be something that EPA

[00:58:03] Speaker 03:
would have to consider, take comments on, provide explanations for.

[00:58:08] Speaker 03:
I mean, especially given EPA's longstanding position that affirmative defenses and exemptions are distinct and should be thought of as distinct.

[00:58:21] Speaker 04:
Before I answer that, let me say one more thing about Florida Electric, then I'll answer that.

[00:58:26] Speaker 04:
I respectfully disagree with that reading of Florida Electric.

[00:58:30] Speaker 04:
The Florida Electric opinion

[00:58:32] Speaker 04:
I was waiting for you to say, okay, the Florida convenient did not get to NRDC and the limits on remedial discretion until after it already exhaustively analyzed a complete defense.

[00:58:44] Speaker 04:
So I don't think it's, I don't think Florida electric stands for the proposition that an affirmative defense, even if it's complete,

[00:58:53] Speaker 04:
still implicates NRDC and remedial power.

[00:58:55] Speaker 04:
I think Florida Electric stands for that.

[00:58:57] Speaker 03:
Well, it doesn't implicate NRDC, but I think EPA, my understanding is you're making an affirmative argument that now we have to think of affirmative defenses as exemptions for Sierra Club purposes.

[00:59:11] Speaker 04:
Well, not all affirmative defenses.

[00:59:13] Speaker 03:
Not all affirmative, but these affirmative defenses.

[00:59:15] Speaker 03:
Yes.

[00:59:16] Speaker 03:
And that isn't what, I mean, the court just didn't say anything about that in Florida Electric.

[00:59:21] Speaker 04:
Well, the court didn't reach a conclusion, but it did say something about it.

[00:59:25] Speaker 04:
It said, how do you analyze it?

[00:59:27] Speaker 04:
And it referred back to the earlier part of that opinion, where it delved very deeply into the legality of a complete exemption.

[00:59:36] Speaker 04:
And what the court described the question to be answered is whether it has to be continuous.

[00:59:44] Speaker 04:
And the court said, we don't have to reach that question, because it only has to be continuous if it's an emission limitation.

[00:59:50] Speaker 04:
Because it's a SIP, it doesn't necessarily require an emission limitation.

[00:59:56] Speaker 04:
That's the path.

[00:59:59] Speaker 04:
Here, we plug that path into here.

[01:00:02] Speaker 04:
Well, it's the type of affirmative offense that's a complete exemption.

[01:00:06] Speaker 04:
It does, unlike in the SIP context, in the title form context, it does necessarily include emission limitations.

[01:00:13] Speaker 04:
You don't have that ambiguity of it's an emission limitation or maybe it other condition.

[01:00:19] Speaker 04:
It has to be an emission limit.

[01:00:21] Speaker 03:
Judge Ginsburg asked earlier whether the Title V permits include things that are also not emissions limitations.

[01:00:27] Speaker 03:
Eliminating the affirmative defense for those is not necessarily, there's no reason for that necessarily in EPA's rule.

[01:00:35] Speaker 03:
I mean there isn't because they, you know, EPA didn't really flesh out.

[01:00:38] Speaker 04:
Well, to go to that point, yes, the Title V permit has to include all applicable requirements.

[01:00:45] Speaker 04:
And not all of those are technology-based emission limitations.

[01:00:53] Speaker 04:
But what I think petitioners are trying to say is, well, you could conceivably carve out everything else and leave that as an affirmative defense.

[01:01:02] Speaker 04:
But that's not what was before EPA.

[01:01:04] Speaker 04:
EPA has an affirmative defense that is too broad.

[01:01:07] Speaker 04:
It is, in our view, undisputably too broad because it pulls in 74.12 technology-based emission limitations, 74.11 technology-based emission limitations.

[01:01:18] Speaker 04:
Those cannot have affirmative defenses.

[01:01:21] Speaker 04:
So as written, it's too broad.

[01:01:22] Speaker 04:
It had to go.

[01:01:23] Speaker 03:
The rule gets rid of all affirmative defenses, which arguably is unreasoned, then if it's not supported on the Sierra Club rationale.

[01:01:30] Speaker 04:
Well, I disagree with that.

[01:01:31] Speaker 04:
I think it is reasoned because EPA did explain

[01:01:36] Speaker 04:
Did explain the CR Club rationale.

[01:01:38] Speaker 04:
I guess two points.

[01:01:39] Speaker 03:
The CR Club rationale doesn't apply to the other types of limitations that aren't technology-based emissions limitations.

[01:01:47] Speaker 04:
On its face, CR Club dealt with a 7412D standard.

[01:01:52] Speaker 04:
It was not based on an interpretation of 7412D.

[01:01:56] Speaker 04:
It was based on 7412D plus the definition that your court mentioned in 302K, 7602K, that defines an emission limitation.

[01:02:05] Speaker 04:
That definition applies to all emission limitations regardless of the source of the Clean Air Act.

[01:02:09] Speaker 04:
It doesn't have to be 7412.

[01:02:10] Speaker 03:
Are there any emissions limitations in a Title V permit that are not also subject to the 302 continuous basis requirement?

[01:02:20] Speaker 04:
Well, if it's an emission limitation, that's a defined term.

[01:02:24] Speaker 04:
Now, there can be other conditions.

[01:02:27] Speaker 04:
There can be other conditions.

[01:02:30] Speaker 04:
There can be other restrictions, let's say.

[01:02:33] Speaker 04:
Kind of like, again, the SIP context where the court was grappling with that is, well, an emission limitation is not the only way to restrict emissions.

[01:02:41] Speaker 04:
That's true.

[01:02:42] Speaker 04:
And a Title V permit is designed to collect everything that a source has to comply with.

[01:02:46] Speaker 04:
That's the whole reason you have a Title V permit.

[01:02:50] Speaker 04:
EPA wasn't faced here with a request to try and craft a new, more narrow affirmative defense.

[01:02:59] Speaker 04:
It was faced with the question of, is the affirmative defense as written legal?

[01:03:03] Speaker 04:
And at a minimum, because it includes 7412D and 7411 standards, it's illegal.

[01:03:11] Speaker 04:
Now, there's a separate question.

[01:03:13] Speaker 04:
Could EPA have crafted or could EPA today craft a narrower affirmative defense?

[01:03:19] Speaker 04:
And I would say actually the answer is no, because Title V is not designed to impose substantive standards.

[01:03:29] Speaker 04:
Title V is designed to collect them.

[01:03:31] Speaker 04:
So if EPA, if a company, if our Title V source in Topeka said, we want you to give us a narrower legal affirmative defense, the way to do that would be in the underlying standards, not in the Title V permit.

[01:03:46] Speaker 04:
And that was the context of Sierra Club.

[01:03:48] Speaker 04:
Sierra Club was a rulemaking under 7412D where EPA gave an exemption.

[01:03:54] Speaker 04:
And the court said, well, you can't do that.

[01:03:56] Speaker 04:
This is one step removed from that.

[01:03:58] Speaker 04:
This is trying to give an exemption in a Title V permit.

[01:04:01] Speaker 04:
And that's why, Judge Walker, your question earlier about what you thought might be the best way for them to win is to show that the general duty in Sierra Club is somehow different than the general duty about excess emissions here.

[01:04:15] Speaker 04:
Even if you could slice that, which I don't think you can, but even you could slice that, there's another problem, which is Sierra Club was, again, a standard setting rule.

[01:04:26] Speaker 04:
In the Title V rule, EPA doesn't have the authority to impose or change emission limitations or standards or restrictions.

[01:04:35] Speaker 04:
It has to do that in the underlying rule that establish those requirements.

[01:04:41] Speaker 04:
So even if there were some daylight between those two general duties, we'd say it's still be illegal for EPA in a Title V permit to give an affirmative defense that narrowly just looks at non-emission standards, because Title V doesn't give EPA that authority.

[01:04:58] Speaker 03:
We're not reviewing the Title V permits.

[01:04:59] Speaker 03:
We're reviewing a rule that sets standards for Title V permits, generally.

[01:05:04] Speaker 03:
Well, that's the underlying rule that EPA tried to rescind.

[01:05:08] Speaker 04:
Right so title so EPA so acting under title five EPA can only do what the title five stat the part of title five of the Clean Air Act that part of the statute allows it to do and that's not and you know we cited in our our our brief I think it's a URG the URG case which I think was a Supreme Court which said title five is not designed to impose any substantive standards it's designed to collect them so what

[01:05:37] Speaker 04:
One of the things petitioners are asking for, and part of the back and forth is, well, could EPA craft a narrower affirmative offense?

[01:05:46] Speaker 04:
If it could do that, it would have to be in a 74-12 rulemaking or in a SIP.

[01:05:51] Speaker 04:
Well, the EPA wouldn't do a SIP.

[01:05:52] Speaker 04:
It would be a federal implementation plan or some other substantive rulemaking, not using Title V of the Clean Act, because Title V of the Clean Act does not give EPA that authority.

[01:06:06] Speaker 03:
Oh, I just had one other question.

[01:06:09] Speaker 03:
Could an affirmative defense be a work practice standard?

[01:06:17] Speaker 04:
Well, a work practice standard could be.

[01:06:20] Speaker 04:
A work practice standard is a kind of restriction.

[01:06:25] Speaker 04:
And one of the things physicians are saying is the conditions of the affirmative defense that you have to do x, y, and z amounts to a work practice.

[01:06:35] Speaker 04:
Again, that argument, to the extent it has any legs, EPA would have to apply that in the actual 7411 or 7412, whatever substantive standard, and look at, well, what are the sources?

[01:06:49] Speaker 04:
What are the pollutants?

[01:06:52] Speaker 04:
What's the particular standard we're talking about?

[01:06:54] Speaker 04:
And does that work practice standard

[01:06:58] Speaker 03:
So if you could have a work practice standard that said, like, during an emergency, you can take all reasonable steps or whatever it is, that couldn't be done in the Title V context, Title V rulemaking.

[01:07:11] Speaker 03:
You'd have to do it under a 111, 112 rulemaking.

[01:07:14] Speaker 04:
Right.

[01:07:15] Speaker 04:
If you can do it at all.

[01:07:16] Speaker 03:
If you could do it at all, it would have to be in that bucket.

[01:07:18] Speaker 04:
Right.

[01:07:19] Speaker 04:
And if you did it as an affirmative defense, there might be other problems.

[01:07:24] Speaker 03:
But if you did it as a separate standard.

[01:07:26] Speaker 04:
Exactly.

[01:07:26] Speaker 04:
If you did it when you're setting this, when you're defining what is the standard, if you say, well, under these operating conditions, we're going to say the standard is X, and these operations, we're going to say Y. And if continuous, there's always a standard in place.

[01:07:40] Speaker 04:
They're different, but it's still continuous.

[01:07:44] Speaker 04:
That's something that EPA might be able to do in that context.

[01:07:49] Speaker 04:
It certainly can't do it here.

[01:07:51] Speaker 04:
And of course, that's not this case, whether EPA could in fact get over the humps to do that.

[01:07:58] Speaker 04:
But that would be the context where the question should really be joined.

[01:08:03] Speaker 06:
Putting aside whether affirmative defenses make an emissions limitation not continuous, are there any Title V permits that don't have continuous emission limitations?

[01:08:18] Speaker 04:
Well, there shouldn't be any that don't have continuous emission limitations because any emission limitation needs to exist.

[01:08:24] Speaker 06:
Are there any that don't have emission limitations?

[01:08:26] Speaker 04:
There could be.

[01:08:27] Speaker 04:
Theoretically, there could be.

[01:08:28] Speaker 04:
I'm not aware of any.

[01:08:30] Speaker 04:
I don't think EPA is aware of any.

[01:08:31] Speaker 04:
But a Title V permit only includes applicable requirements.

[01:08:40] Speaker 04:
Now I say only in quotes because that's pretty broad.

[01:08:41] Speaker 04:
Applicable requirements is pretty broad.

[01:08:43] Speaker 06:
If there could be a Title V permit that does not have an emissions limitation, then that Title V permit would lawfully be allowed to have an affirmative defense because that affirmative defense would not be an elimination of an emissions limitation.

[01:09:05] Speaker 06:
The emissions limitation is already not there.

[01:09:07] Speaker 04:
Right.

[01:09:08] Speaker 04:
It's hard to imagine.

[01:09:10] Speaker 04:
that source that that would have that kind of permit because applicable requirements, the way it's written, if you're a major source and you're emitting, say, out of a smokestack, yes, theoretically, you could.

[01:09:26] Speaker 04:
It is conceivable.

[01:09:27] Speaker 04:
It's hard to imagine in practical terms what that source would be.

[01:09:31] Speaker 04:
And EPA is not aware of any permits that actually fit that.

[01:09:34] Speaker 04:
But if you had that kind of a shell permit, essentially, then yeah, that's true because it's our whole argument.

[01:09:40] Speaker 04:
Why is that not the answer to this case?

[01:09:44] Speaker 06:
Because in Florida Electric, the SIPs, you could imagine a SIP that did not have an emission limitation.

[01:09:55] Speaker 06:
Therefore, if those SIPs had an affirmative defense, that was fine, because those SIPs weren't required to have an emissions limitation.

[01:10:04] Speaker 06:
Here, you just said you could imagine a Title V permit that doesn't have an emission limitation.

[01:10:11] Speaker 06:
So for those Title V permits, fine, they can have affirmative defenses because those affirmative defenses are not nullifying the emission limitation that's already not a requirement.

[01:10:21] Speaker 04:
The reason that doesn't answer the question here is because the affirmative defense here is expressly limited to emission limitations.

[01:10:28] Speaker 04:
So if you had that other hypothetical, you wouldn't even be under this regulation at

[01:10:33] Speaker 04:
This regulation is expressly limited to emission limitations.

[01:10:37] Speaker 04:
If you have an emission limitation, it has to be in your permit.

[01:10:40] Speaker 06:
OK, so I think the very last thing you said there is the answer.

[01:10:45] Speaker 06:
If you have an emission limitation, it either has to be in your permit or you don't get the permit.

[01:10:52] Speaker 04:
I mean, it has to be in your permit.

[01:10:53] Speaker 04:
I don't think so.

[01:10:54] Speaker 04:
Yeah, it has to be in your permit.

[01:10:55] Speaker 04:
And that's the difference between this case and Florida Electric.

[01:10:58] Speaker 04:
That's exactly right, because Florida Electric

[01:11:00] Speaker 04:
the way the SIP statute was written was subtly but importantly different that allowed for a SIP to have a different kind of restriction that's not.

[01:11:10] Speaker 06:
And I guess I'm still not totally sure because you said if you have an emission limitation, it has to be in your permit.

[01:11:17] Speaker 06:
But an emission limitation with an affirmative defense is, let's say, not an emission limitation.

[01:11:25] Speaker 06:
And if that thing, whatever we call it,

[01:11:28] Speaker 06:
is all that's required to be in your Title V permit, then your Title V permit is fine.

[01:11:38] Speaker 04:
Your Title V permit is fine, and you don't get to the affirmative defense.

[01:11:43] Speaker 04:
You define the factual situation outside the affirmative defense.

[01:11:47] Speaker 04:
Now, the affirmative defense only applies if the Title V permit has an admission limitation.