we have one motion to be argued in natural resources and hell versus national highway and now seventeen to seventy who will hear the motion now outdated civil penalties by august twenty sixth team which needs a did it's a subsequent decision to indefinitely suspend the final civil penalties rule without notice and comment should be summarily vacated because it flagrantly violates th addressed to other grounds in that case for finding that the action there was unlawful and one is that agencies simply don't have inherent authority to suspend and reconsider final rules and as well that an agency's decision to review and petitions yes your honor so so again abraham clearly answers this argument intervenors have argued that the petitions were untimely but abraham confirms that prescribe and publish prescribed being the operative word used here are interchangeable within the same provisions of this very statute and also is more specifically that the time to bring a petition runs from publication both the state parties and the but abraham is very clear on this point that in the context of epic a specific we prescribe and publish are interchangeable the only case that the respondents in intervenors cite is moneta in support of their position that it's not publication and that case involves an entirely different language about when an order was issued that simply has no bearing on prescribe and no bearing on this court's decision in abraham which did address that very question i'm the there has been a full airing of the merits we've had responses totaling about eighty pages from respondent as well as to intervenors we're having a hearing right now and i would suggest that this court can be guided by the d c circuit decision in clean air coun s this court to stay the suspension pending any disposition on the merits of the practical consequences of the well the practical consequences is that the industry right now is making decisions that are going to be locked could prevail but but right now they're looking at what the agency has said in this case i think it's likely that we would prevail and clear guidance from this court either disposing of the merits and summary vaca or a stay would clarified it to the industry actors that are making those decisions so us for x and x but that feels like in the alternative if this court doesn't grant summary vacaville we would seek an expedited appeal we feel that the issues here that the merits are so clear that we'd actually be willing to rely we do your honor what we're asking this court to clarify that the delay order preserves the status quo i mean right now it's just preserving the status quo the agency's delay or does not preserve the status quo as as the d c circuit explained in clean air with the delay in place on august twenty sixth when the eight nitsa published an interim final rule that was effective with within a month so it was promulgated in july became effective in august they revised that into effect in january yes that's correct or a vision hasn't come in so the situation that exists now is the same situation that exists three years ago in terms of what not in terms of what has happened in the courts or it happened in the regulatory world but in terms of what industry has to comply with that's correct and that's in defiance of the inflation adjustment act which to rebut that is the current status quo well i would dispute  that for one reason your honor which is that clean air council for example is clear that when an agency duly promulgated the final rule the status quo is that that rule goes into effect as planned and that when agencies use nonexistent power to suspend that what they're actually doing is changing the status quo as it exists on the phone and the status and you hear me and your point is that that rule should be the one that's in effect and that the delay should never have been issued yes that's correct that the design is unlawful the agency lacked authority even if it had authority it would have to go through notice and comment procedures and it's the fourteen dollars penalty not the outdated five fifty penalty that should be in effect right now so how quickly could you have this ready for appeal if this court moved to an expedited briefing schedule we'd be content to go as fast as this court required tenchi a couple weeks we think the issue here are clean and simple enough in fact that we'd be willing to rely on our opening brief submitted in this motion we'd of course reserve the right to apply but but but either that or with all due speed as this court would direct thank you thank you play please the court thomas byron from the department of justice here on behalf of the government petitioners of contended that knits is action here was exceptional but in fact i think what's truly exceptional is the motion seeking summary just position in in what is itself a really unusual kind of case a challenge to an agency action that has no practical significance indeed the agency itself found that  in justifying its action in the delay will there's no practical significance here to the agency action under review in this case at all because the december twenty seven thousand final rule on reconsideration delayed the imposition of the increased civil penalty rate to model year twenty nineteen so your twenty one thousand will be completed until late in the year of twenty one thousand and there won't be any occasion to calculate whether there is any failure to meet the cafe standards themselves and therefore whether there is any occasion to impose any civil penalties under that regime until sometime in two thousand and twenty at the earliest now i can tell the court the end i'd be happy to submit this in a twenty eight day letter if it's appropriate after the argument but i can tell the court that there is a draft notice of proposed rule making under review at the office the action of every agency over the decades so i guess my answer is no but i also have no it have had no occasion to look for them frankly or for no real way to find them and i think the real key here to keep in mind in this respect is that the the the offset the the disk congruity between what's the nominal effective date in the december two thousand and seventeen final rule which was thirty days after publication and the actual compliance date or or the date of significant effect which is after model year twenty nineteen so the reason i mentioned that graph yes  rule as fact a design which has to be implemented at least as i understand your adversary has to be implemented well before twenty nineteen or twenty twenty whichever year we're talking about so digital designing now three years out or two years out i think the answer to that is we don't know whether it does we're not and what the industry intervenors have explained in their opposition to the motions is that there is a very complex set of calculations that will need to be done in order to determine whether there is any failure to comply with the underlying cafe standards that includes that calculation includes these these credits that can either be carried forward or carried backward transferred and purchased and nitsa made this point in its agency action here when it explained that historically there's been very little in position and payment of penalties because of that complex calculation and and the industry interveners and we have also pointed out that that speculation about whether the bear increase i'm sorry the bear delay of the effective date wholly apart from the level of the ultimate level of the civil penalties that it's a settles on in reconsideration or that a court has judge walker pointed out might might later determine is is necessary or appropriate under the appropriate form of judicial review after that reconsiderations complete wholly apart from that actual rate there is no way to discern any injury for standing purposes solely from the delay of the effective date which is the only thing before this court and i would emphasize if i may that both this court i'm sorry that both the d c circuit in cleaner counsel and other courts that have addressed these questions have emphasized that the underlying reconsideration is entirely proper there is nothing wrong with the agency undertaking that reconsideration petitioners here are a raising this very odd there that this is not the standard but i want to understand just as a practical matter what is the harm to the public interest of a stay of the de lay rule given what you said and how you started this argument i think the answer to that is the uncertainty that would flow for manufacturers and the public as a whole about what is the what the standard is going to be if i may continue any question about what the standard is going to be for model year one thousand and after so that question will be resolved in the underlying reconsideration but just to turn back to what i think is right now i mean the there is some level of uncertainty and dignity in any event because of the silly rule to be sure not only because of the delay will but also because of the underlying reconsideration so judge walker i think you made the point earlier that the agency could impose higher rate even the fourteen dollar rate or this court or another court on review of the ultimate reconsideration will could impose a different rate but what i think the harm to the public interest also conflates with the injury to the agency's ability to manage its own ongoing efforts and this is the vermont yankee point your honor that we made in our opposition and in this context it's extremely odd to consider what amounts to a stay of a stay it would as george walker pointed out disrupt the status quo and it would cause questions about the agency's ongoing reconsideration which are inappropriate at this notice that would you have any objection to an ex with a reasonably expedited briefing schedule would be certainly appropriate your hon out how about april ninth would that be a possibility or were they for hearing for an oral argument that your honor so i think we would need i think at least three weeks to complete our brief and respond to any have no problem with that an expedited briefing schedule an expedited briefing schedule reasonably expedited we would like three weeks to file our brief in response to any briefs that they file which hopefully would address all of the issues that have been raised in this motion filing process