chevron standard of review applies so the question for the court is what is important to me the court and bayview and warmer dam has looked at what constitutes  bayview there are no when you look at carbs aggregate tonnage there are no specific strategies because carb all it says is our commitment is to achieve the total emission reductions necessary to attain standards they're just saying they're going to quite clean air act carbs in terms of specific measures carbs only committing to propose measures to export it's not committing to adopt any specific strategies pesticide element is also a last trade of here in warmer dam this court held that a commitment to reduce pesticide volatile organic compounds emissions by twenty percent wasn't enforceable when the specific commitment to adopt is an enforceable permit but again what's critically different here is that in those cases texas in new york committed to adopt this if it regulations in the case of texas they committed to adopt regulations by by may first two thousand and four well over three years before the attainment date in new york they committed to covering relations by october thirty first two thousand and look like to enforce it it's a nightmare to enforce that first because the car can move around the baseline because this aggregate tonnage thing is all based on what the baselin manipulation because the baseline is that and emissions standards are limitation what we would have to do like let's say they change the baseline we have to come back in a case like this and so e p a over whether it was arbitrary capricious to approve carbs baseline or vision much different and we couldn't challenge effectively the states changing the baseline of state court because the state gets almost total deference and how it calculates those baselines then again enforcement would not be practical e p a is interpreted what in forcible means in the general preamble and one of the things that goes into something to be enforceable is whether it's practical to enforce it so as a practical matter figuring out why e p a in the fire case said well all they have to do is trac rule makings i mean that's how many different rule makings are we talking about here because card makes an open ended universe of potential things that could achieve these abductions like will makings we have to figure half of the reductions needed to meet the ozone commitment and today there's nothing in the record that says where they are now it's in the public document so much we looked up reductions would be part of this commitment changes in economic activity how the citizens figured out how the citizens figure out whether incentive reductions from public  what but that's not the issue the issue is whether they can adopt a commitment that is open ended like this without any specific strategies attached to them i understand you made that argument and you say well here for example they adopted this things which we can't tell what they this open ended universe of potential things do until the very end until two thousand and fourteen so again what makes it impractical to enforce is a come so late in the process the purpose of having it's useless really again that texas case in the new york case those commitments that they had to adopt the rules those are several years ahead of the attainment deadline so it was practical to force those a citizen would go in and say court they did adopt these six rules that they said they were going to do you issue an injunction compelling them to adopt those six rules here we were going to court and say court ordered them to achieve seventy tons per day if not should options again big time disconnect between those two situations so the p a s interpretation of what's in forcible is not reasonable i would assert that that would be judged under step one interpretation now then the court should not defer to a flipped agency interpretation i can remember the case that that talks about this principle but where the agency flips its interpretation out of convenience that doesn't warrant deference because what they're saying isn't forcible here is very different than what they said isn't forcible in the pesticide will make it very different if the court doesn't have any further questions about this and forcible issue i'd like to talk about the baseline measure both plans rely heavily on reductions from the so called baseline measures the pm two point five plan relies on half of the pm two point five reductions seventy percent of the nox reductions and fifty percent of the sox reductions the ozone plan relies on eighty percent of the knocks and half of the b o c so most of the reductions that these plants are using to demonstrate its payment come from these baseline measures so all these car corals and truck rules and stuff they are not going to be ph they're not part of the s inescapable conclusion is that these rules have to be part of the plan so under section one seventy two sixty six the measures have to be enforceable and part of the plan if they're going to be used for research will further progress to the extent they've occurred they have to come from implementation of measures required under the possible plan for contingency measures they shall be included in the plan so congress has spoken directly to this issue and said if you're going to claim are those vehicle rules that basically talk about engine standards and con congress has allowed california to enact these rules and they go through a process where e p a waives preemption non waiver measures are more like operational restrictions now we pointed out some examples and everything about non waiver measures that were not submitted here's one the one called schip reflash that was a measure that required trucks to install are on board computer software california supreme court invalidated that rule yet harvest claiming thirty eight tons per day of knox reductions in two thousand and seven this isn't a waiver measure role and it hasn't been submitted it shouldn't be claimed it's not enforceable it's not part of the plan it's not even and a rule anymore there is a measure about truck idle that's both a waiver measure role and a non wafer measurable just get in the waiver approval isn't the same thing e p a could easily do both at the same time yes so that what you then turn to the non waiver what percentage of that rough terms is out of the production so you're that that you gather your position has consistently bayview that you couldn't a citizen so would not lie to say you haven't met your goal and therefore you know we were asked for just a court to issue an  absolutely if you use position that you have when he appears done approving control measures intercept it has not approved enough tons of emission reductions to meet the specific numbers that are included in the code of federal pivot point for your argument the word aspirational the present point for argument is that this isn't the text of the code of federal regulations and when you read that text petitioners quotations are not complete the text of the federal regulations has very specific numbers for the very specific times pollutant that must be reduced and it is important to note that in the final rule in the technical support documents  for pointed out that the control measures listed in the control measure commitment are a strategy for getting there and it it is not correct that all of the reductions from those measures have already been incorporated in reaching a type of commitments a number of those baseline is part of the set and there is no federal law the baseline cannot be changed unless the state came back to repay under section seventy four ten k with a formal request to amend the set but given  that the both a waiver and some non waiver baseline components are not included in the set how can they be enforced and so that i understand you perfectly maybe my to this question are you referring to the numbers and the time that you commit no i'm talking about this would you start off with a number of measures that were subject to waiver preemption waiver and those specific measures are not included in the citizens for a better environment v deukmejian case in the northern district california seven thirty one f stop fourteen forty eight i believe provides an example of the type of injunctive relief that the district courts in order there there was a commitment to adopt contingency measures which measures were not specified in the injunctive relief issued by the district court was to for the district to decide but to adopt and implement contingency measures to fulfill that requirement and that's very analogous to the type of injunctive relief that issue to address a failure to achieve the emission reductions required under the tonnage requirements if the control measures listed in the set don't actually get to those emission reductions not a waiver now the waiver  answer is if the question is can the e p a or citizens directly enforce california mobile source measure a waiver measure the answer is no and the broader context here is  five and explain why it was appropriate in each of those instances including the example raised by petitioners counsel for those measures not to be included in the steps so e p a has addressed those now the waiver measures e p a s position in interpretating the structure of the act which there is the waiver process and there is the inclusion into the step process under seventy four ten as to enforce ability specifically e p a has found consistent with congressional intent to provide california of what the most discretion maximum discretion and flexibility to push the awful obama addressing their problems from mobile sources in california that california eks found that california has as long and as vigorous possibly more so and enforcement program a does for federal mobile source measures and the mobile source the waiver provision and the provision were both incorporated into the created in the air quality act of one nine hundred sixty seven so the two have always existed in the history of the federal clean tonnage commitments are where the state has to get from that future baseline to the next so the tonnage requirements are distinct from the inclusion of waiver measures in the baseline so however california can fulfill the tonnage requirements through mix of control measures that are proved under seventy four ten and the waiver measures in that sense there california's being able to take and achieve emission reduction but i understand where you're going with the general all over all plan but the question is why shouldn't the waiver measures be included in the sip what's wrong with that option one way that california can fulfill the tonnage requirements is through waiver measures but what e p a has done and forgive me for kind of backing up to the big picture but i think it addresses your honour's question is in  provisions of the act seventy four ten which requires measures to be approved into the separate sets for that process and then the waiver process which provides a special process for california mobile sources e p a has always found since precursor to ozone and less on carbon monoxide and they couldn't get where they wanted to on nox and also meet the federal standards for carbon monoxide and that's why congress adopted the added the in really aggregate plan which to give california flexibility so you have a fifty year history of california having this authority given to them by congress to push the ball forward and push the envelope using its waiver measures and he pay has never found it appropriate to include those into the getting lost on the argument in the sense that it doesn't make sense to me to say it is not necessary or appropriate to include a separate state measures force but mechanisms the question of whether mission reductions from a particular measure are necessary to attain it is not necessarily the same analysis that e t a undertakes by determining whether it's necessary or appropriate for inclusion into this and so for waiver measures waiver measures run in parallel with the parent federal mobile source measures states are not work other states  required to incorporate federal mobile source measures into their set and indeed they do not but the emission reductions that are achieved from federal mobile source measures are counted in all of those other states baselines so the state other states when you are relying on the mobile source california smarm mobil source rules a so called waiver right where you go in the waiver regulations to achieve the tonnage requirements your answer i think is no those can't be enforced through the sip and therefore the question is ultimately do you have an input and forcible enough commitment under the set and the answer may be now for if if we're focused on tonnage photometer apartment specifically and the use emission reductions from waiver measures towards counting towards the tonnage production i would again point to an analogy and the same process that occurs with federal measures is that the federal measures when if a federal measure is frank then the state can count the additional emission reductions that are achieved from that newly strengthened federal measure the same as analogous to win california strengthens a waiver measure or has a new one and she's more the enforceability specifically does requirements it is the bottom line answer that i can give your honor is that e p a and interpretating the two sections of the act has found that california is in for stability is sufficient and that and the last case is look we have all these specific and forcible requirements but with respect to the baseline issues with respect to the those that have been away by u p a now that's the that's a huge chunk really of how you're going to ta those schools police appears to me i do think it's important that the understand there is i'm not saying it's not wise or not a good strategy we're talking about what you're legally required to do i understand there is a i want to be clear that there is a distinction between the waiver measures that are part there's no evidence in the record that california is relying heavily on waiver measures for filling that tonnage production because that's for moving forward at least in the context of ozone where the attainment of life is still ten years out so i just want to clarify that there is a distinction between this so called reliance on the baseline for future baseline inventories versus how california is going to be i really would like to put it a little bit of a twist on that and i submit that the question really is in forcible by whom what petitioners overarching premises in this case is that they may not necessarily have the enforcement options that they would like to have but whether citizens can't or can't enforce certain aspects of the cep in my mind is really irrelevant to whether the control strategy itself  approved the control strategies was proper petitioners premise was that it was improper it was an approvable because these certain aspects of the regulatory commitments combined with the tonnage commitments were in forcible and that made the control strategy itself an approvable that's the way i see petitioners argument and they rely on you know the baby case in the warmer dam case and others for examples of situations where a commitment wasn't or maybe not a commitment an aspirational goal or something along those lines was unforeseeable by citizens but i think that the clean air act and the section three or four citizen supervision really only gives citizens a limited you know limited in force when options under the clean air act when there's a violation of an emission standard or a limitation or when e p a fails to perform a non discretionary act and it's only under those two limited circumstances that citizens have an important right in contrast citizens but what the baby in court also said is that the four step strategy designed to achieve that target goal wasn't forcible and that the remedy the relevant solution to an emissions shortfall is a sip provision to adopt new measures were there was a remedy there it just may not have been the remedy that citizens would have wanted i think that the petitioner circe spend a lot of time complaining about whether they have affective remedies for example therapy decides to adjust  baseline inventories or if they can effectively track the emissions reductions that a or b or the district will take credit for to satisfy the tonnage commitments i've heard petitioner's counsel say that it's a nightmare to enforce or they can't challenge effectively but but i think the bottom line is that the petitioners really complain about potential opportunities for participating in the public process as being slow or cumbersome or not to their liking that's really a question for congress or the state legislature but but i think that council for e p a has done a very good job of explaining why the the boat the tonnage commitments themselves on the regulatory measures designed submitted in the preamble so what the status submitted in the state strategy and then the two status reports that came in was this vague commitment to achieve whatever is necessary to meet the standard in the future the state didn't commit to those specific numbers it listed some tonnages in tables as examples of what they thought the shortfall was but ultimately their commitment  get whatever it took to comply with the clean air act so e p a extrapolated from that computer crunched the numbers during the rule making and stuck it in the code of federal regulations i submit that that is not what the s state an ironclad contract between the state and the federal government to achieve these standards so e p a s interpretation of the word necessary and whether e p a gets to decide what's necessary first let's step back and take a look at that language congress when it included necessary it was talking about what states decided to include in their plans not what d p a decided was appropriate include in this said c because states decide what the strategies are going to be they come up with the plans and they give it to e p a e p a has an extremely limited role under the clean air act to only approve or disapprove what the  has no authority under section one ten pay to willy nilly pick and choose what is necessary to have in the state implementation plan their job is to make a finding of whether it complies with the clean air act or not and if it doesn't then disapprove it so in terms of this word necessary that's not talking about e p a and whether he has authority to exclude waiver measures if it deems it appropriate it's talking about what choices the state makes to claim reductions and in this case the state has claimed massive reductions from these baseline measures counsel for e p a said there's no evidence in the record that the baseline measures are counting for a large amount of reductions that's just not true in the pm two point five case record at petitioners excerpts of record page one sixty eight over half of the pm two point five and seventy percent of the knocks reductions come from these baseline measures in the ozone record at petitioners actually it's a record page one one eight three one two eight and page three twenty one eighty percent of the knox reductions are coming from these base line measures half of the v o c reductions are coming from baseline measures so there's this overwhelming amount of tonnage that's being used in the taman demonstration from these baseline measures and he says it's not necessary