of the clean water act and record for the purpose of requiring exxon to stop its ongoing and illegal discharges of chemicals into the ireland and river and to address the fact that climate change is increasing severe weather and placing the terminal at risk of catastrophic flooding and a spill the fundamental issue in this appeal is that the district court improperly applied thousand and twenty one and i know the word is hope that the permanent process will be completed yes your honor the goal that e p a stated at the hearing in this case was a goal to finish the entire discovery what otherwise started to even the anticipated goal with the e p a issuing just a draft permit in this case not only considering the time it would take for the notice and argument while you're merits argument is that you should have the right to demonstrate that they were not exercising good engineering practice is because it's not adequately in the taking into to what extent would we get a better definition of what the e p a consider is good engineering practice is it all yes your honor we wouldn't anticipate the good engineering practices definition or interpretation to come up in the administrative proceeding at all for a couple of reasons the st is that exxon has not asked e p a to a point on it so exxon's requested a substan exxon has to consider forseeable severe weather events and judge wolf in his opinion credited those allegations and found that you know in reviewing the permit it would require exxon mobil to at least that good engineering practices might come up in the notice and comment process as recent as i said we don't anticipate that to be likely to happen because we feel no need to comment on a permit that comes out if it comes out in th with the same terms that are already there in addition we are right i mean why would you not feel compelled to climb on it near even if you did comment on it   e p a has stated previously that it uses terms like good engineering practices to avoid freezing standards in place so it is to allow and put the onus frankly on t evaluate the risks to its facility and to take affirmative action on that so e p a has said that does not want to freeze standards in place by putting a very specific definition on some of these provisions and see us agrees with that approach that there should be a more flexible interpretation of how the permits work to take into account changing conditions at the facility so we wouldn't feel the need to do so and in addition one of  the fundamental issue in this case again is the delay to c o f case so we filed this case over four years ago waging both ongoing discharges from the terminal of hydrocarbons into the surrounding water bodies in amounts that are far in excess of what exxon's permit allows and those discharges have continued throughout the pendency of this case and the there was a year or so for a state court trial and then the potential for appeals thereafter i would argue here we're looking at even longer stay that has already occurred as well as potentially another year or so until e p a stated it line and so the extent of the delay of federal federal court review of c o f's claims bring us s application of the primary jurisdiction doctrine was in error for a couple of reasons the st as we argue in in our brief is that congress is a stablished the the process for filing a citizen suit and is set the diligent prosecution bar and the priest notice requirement as those requirements that that assistance you must meet and tacking on primary jurisdiction as this court noted in chico and other appeals courts have have the potential to create an end run around the very intent the congress had in setting those citizens which was expanded in force and timely enforcement of the environmental statutes so our st request would be for this court to find that the primary jurisdiction doctrine simply does not apply to citizen suits under the clean water act or require out discordant chico decided not to go that far or decide that question then but we think that the facts of this case so you should make the court reconsider whether to place a shark to place a bright line rule on whether abstention or primary not can i interrupt to ask a question i think relevant to this line of argument if you should prevail in this appeal and the case then goes forward in the district court with discovery etc how to how are you going to get relief prior to the hoped for mid late fall early fall next year timeline that's been set  assume if the new permit if the new permit corrects the engineering issues that you have identified you'll be ok going forward if that if it doesn't you have the potential for litigation are are do you not still either way do you not still have this litigation with respect to damage that may have been done previously yes your honor again we are our assertion is not that in fact we don't believe that anything that happens the new permit will eliminate c l f claims in this case the problem here is the length of delay in even starting discovery allowing that case to proceed so no matter what happens with the stay our case will have been delayed by a year and a half or two years but if you but if you're saying that a remedy still exists still potentially exists and you wouldn't get that remedy in any event between now and next fall how is it that you're out of court again this is the part that i'm still missing i think if from in that way our case is no different from the case in r court because that of the delay in adjudication of his federal claims based off of something that was outside of what the federal court self esteem so i think we fit directly into that into that same ruling and in addition the amount of do away that is that has transpired and the ongoing environmental harm throughout that period makes our case moving forward more quickly even more important than might be the case in just a straight damages case for those lines so i want to ask the other judges if there are follow up questions at this time and even if there are not we've taken considerable amount of your time and used it all up so i want to give you discovery if not to despise and emotions we did your honor we didn't specifically ask to proceed with discovery however even during the pendency of the motion to stay the part raise in the district court that the timeframe at issue here the early stage of our case meant that the two the two proceedings could proceed in peril well and there would be no no loss of information for the district court  choice so that that is one of the biggest problems for us in this case is that we haven't even been allowed to start discovery find that the district court erred staying c o s case based on the length of the delay that is happy that has elapsed and will at this moment continue indefinitely the continuing environmental harm and the fact that the permanent process will not decide any issue and the one other point that i wanted to always mention is that c o f's recruit and polluting discharge claims are not even mentioned in the motion to stay order in fact the district court ignored the impact of those claims and the permanent proceeding is not even arguably related to that was claims but they still remain state along with everything else thank you very serve some time we'll hear from mr moore if you would thank you chief judge howard william marks of paul weiss for the op elise and may please the court as the court correctly recognized in its show cause order the court lacks appellate jurisdiction to review the district court's order staying the case under the doctrine of primary that order is not a final judgment and appellant did not ask the district court to certify the order for interlocutory appeal instead appellate invokes to narrow exceptions to the final judgment rule that it contends permits appeal in this case but neither exception is a clickable here in the alternative appellate seeks mandamus relief but nothing in the district court's order comes anywhere near the sort of palpable error necessary to justify such an extraordinary remedy to the contrary the district court properly exercised its discretion by staying the case in order to allow e p a to act on the terminals permit renewal application appellant is asking the district court to order physical modifications to the terminal stormwater treatment system based on a novel interpretation of a commonly occurring permit term that the district court concluded was ambiguous and e p a s action in the permit proceeding could resolve many of those very issues a stay under the doctrine of primary engineering practice is a common term that the district court has now found ambiguous so it's certainly possible the e p a could address the issues in this lawsuit when it issues the draft permit either in the state and it basis or the fact sheet  your in or on are also noted both parties have the opportunity to comment on the permit and raise these particular issues in the lawsuit and we think that if appellant raises these issues c l f will be required to respond to them now appell takes the position that it does not want to file a comma and it's at that same position below and frankly your honor we think this position is somewhat astonishing appellant is here and while we disagree with the allegations in the complaint appellant is here claiming that its members are at risk of substantial in an injury without physical modifications to the terminal and yet the district court determined that the temperament was in big us with respect to whether it impose that obligation and appellants are here saying that they don't want to comment on the permit and ask e p a to impose affirmatively expressly the obligations it seeks here i think the only way the court can understand that it isn't is a recognition that e p a is unlikely to adopt appellants views and as an attempted in run around the administrative process now i don't think that question really goes to the question of jurisdiction here state order the general rule is that a state order is not appealable as of right mandamus is the only relief to get no your honor we don't think so in rojas hernandez the court looked at two factors whether the stay was indefinite in duration and whether the state was unnecessary and we don't think either of those are true here unlike the cases that appellant sites that have permitted appeal under this broader application of the effectively out of court doctrine the courts have tied the duration of the stay to the completion of the parallel proceedings and affects delegating their case management responsibilities to another adjudicator now that's not what the district court did here the district court listens to a discussion from an e p a attorney on the record in the state hearing and concluded the e p a was likely to either issue the permit or make substantial progress on the permit by october piece we think there's no problem with that prong because each piece actions in the permitting proceeding as we just discussed could could limit or for close appellant's claims or could decide some of the important substantive issues in staffed their ministry of agencies contribute to this backlog in other words if the new administration goes into into this will we from a practical point of view see some stamp improvement in that agency your honor i don't think there's anything in the record to suggest that and i'm not aware of any other document suggesting that there has been some type of change in the region one staff based on presidential administrations service so unfortunately i don't have a direct  answer to that on the collateral order doctrine i think there's two primary problems with the talent's argument the st is three courts of appeals have determined the primary jurisdiction analysis is not completely separate from the merits and nd i think as a practical matter there's really no limiting principle on appellant's argument that would not make many state orders appealable as of right i think it's arguments on the clowder order factors affect if they would apply to any state order except perhaps for the importance prong but appellant's argument here on the importance prong is that this is a citizen's suit i don't think that's meaningfully different from saying that any time congress confers a party with a statutory right of action there's been a statement by congress that it's so important you would automatically satisfy that prong and so i think under opponents reading there should be a whole swath of state orders that are appealable as of right that right now we would think are only appeal e based on mandamus so we think the only way the court can review this order here is through the path of mandamus and we don't think that helen has made anywhere near the strenuous showing  get that kind of extraordinary really i think appellate makes three basic arguments or three primary arguments as to why the state order was incorrect st that there's a categorical bar on the application of the doctrine of primary act citizen suits nd that there's no benefit to the stay for the federal proceeding and rd that the harm from delay requires the denial of the stay and i'd like to address each one of those here i think that's alone enough to show that the district court did not commit palpable error on this score but even on the merits itself there's no there's no conflict between the doctrine of primary jurisdiction and the notice prosecution provisions of the clean water act and require the notice provisions and diligent prosecution provisions exist to protect p a s and state administrate of agencies enforcement powers whereas here the primary jurisdiction doctrine is really aimed at protecting the e p a s powers more broadly and to give the district court the benefit of agency guidance and a technical case where it would benefit there's no  nnecessary or necessary prong of the how is it that the the this day until the new permit is further away is going to have any effect on the meaning of the terms in the current per minute your honor if we are if we are in the the world of jurisdiction i think the you know the st minor point i would make is i think it's really the burden on appellant as the party invoking the court's jurisdiction to show that there won't be any effect but putting that aside i think there's a couple ways that the e p a s action could affect this case as i discussed with judge thompson earlier if e p a states in the statement of basis or f draft permit or answers a comment on the meaning of good engineering practices that will be powerful extrinsic evidence about the meeting of the term good engineering practices and recall that the district court concluded that the term was in big us with respect to whether it imposed the requirement that appellant seeks and thus it looked to extremes of evidence other courts of appeals have concluded that in such situations looking to e p a s interpretation of clean water honor that's true that we do not know for certain what they will do but i would submit as i mentioned in my conversation with judge thompson earlier that really appellant is in the driver's seat here and has the ability to submit a comment and asked e p a to address these issues and i think that under normal principles of administrative law e p a would be required to respond to that or else would risk the permit being arbitrary and capricious but i would also note if the court looks at appellants comments on the two thousand and nine permit and that's it for forty dollars to four hundred and forty nine dollars of the appendix e p a will respond to comments that simply ask for clarification as to the meaning of certain permit terms and don't actually ask for some affirmative change so even if it takes the position it takes today it could still ask for clarification as to the meaning of the term good engineering practices and i think the e p a s answer to that comment would still provide powerful extr evidence of the meaning of the permit now judge howard to chief judge howard to make one point on your question i think the other way that the permit could really affect this case in a major way is if e p a were to either say in the permit itself or in the comments that it was expressly rejecting appellants view of the term good engineering practices in that case i think under the atlantic salmon provision and its interpretation of the permit shield provision of the clean water act appellant would not be able to get prospective injunctive relief ordering the requirement seeking here because the new permit would express lee or the best interpretation of it would be that it doesn't apply now i know that appellant also has a claim for civil penalties here but i actually think there would be potentially a newton a santa jurisdictional problem if e p a actually rejected appellants view and that's because once the new permit does not contain any requirement like the one that appellant is seeking here there's really no future violation on that front for civil penalties to determine so i think the district court realized that there could be a very significant effect on this case depending on what he did and i would also know judge thomas and us to securely about why the district court did not permit discovery and i would point the courts to page eighteen of appellants reply brief and their appellant made the point that the scope of any injunctive relief is going to be heavily driven by what happens in discovery especially since  seeking some physical modifications to the terminal that we think will be significant expert discovery in this case that occurs as soon as discovery starts to go forward but if alternately e p action shows that there's no such requirement or that there's a more limited requirement then helen seeks here i think much of that discovery would be for not and i think that practical consideration is what led it's part of what led the district courts to conclude that a stay of the benefit of a stay outweighed the cost of delay thank you thank you your honor mr carville you reserves three minutes yes thank thank your honor i just wanted from other other kinds of rights given by congress i would say that that's that statement is completely at odds with this court's discussion in chico as well as the various other circuit court cases that c cites in which the courts found that at a minimum if primary jurisdiction applies at all to a citizen suit case it's only an extraordinarily rare circumstances and that meaningfully different is is contrary to law here another point that i wanted to respond to was the my brother statements about if e p a does something might do something it's possible that's the exact problem that we have here is even if primary jurisdiction can apply the pitch henschel or the speculation that e p a could do something that might be helpful just cannot be sufficient to state a citizen suit under those sorts of extraordinarily rare circumstances e p a could always potentially do something in a future permitting proceeding and in fact these industrial requests a couple points in response to that your honor the the st is that in the notice and comment process e p a is only obligated to respond to comments that might substantively change the permit so it's the right to exist to enforce that permit not some speculative new permit and that that brings me to one other point that i wanted to address briefly was any new comet that e p a issues cannot absolve exxon of liability that might have under this permit federal law makes clear under the clean water act the any new permit must be at least as strict as the existing permit so it is at most a one way ratchet it cannot take liability liability if there is any but could they send something that would put a dispositive spirit on an issue that's currently before the court your honor i think that e p a could put a relevant spin potentially in it in discussion of a new permit i don't believe that they could place a dispositive spin on it the good engineering practice a standard is there has written and so the district court would still need to interpret what good engineering practices which is really an external professional standard meant wall of the existing permit is in process i don't believe that any statement by e p a could be dispositive on the so speculating that that was part of the district court's calculus and doing in doing so i don't think really meshes with how the district court discussed the state being the potential information being potentially helpful to the court at no point does it talk about exxon not having to engage in discovery anything on those lines and in addition i would also state that inst one way or another the discovery is going to have to happen no matter what and so really we're just kicking the can down the road for when ever the stay is lifted but they're still going to be discovery they're still going to be expert discovery and to the extent that anything he does is somewhat informative that concludes argument in this case attorney coghill and attorney mark who should disconnect from the hearing at this time