good morning good morning paul c b on behalf of the state of north dakota north dakota was your honestly excluded from a case about the future of the solid waste management program under subtitle d of the resource recent and subsequent supreme court precedent as was the court's failure to take up north dakota's motion to dismiss and decision to exclude the state from the negotiation of such with consent decree the purge purports to resolve this case a decree that we argue is inconsistent with the statute itself plaintiffs in the district court in the police here are a collection of public interest groups that sued the p a in the district court ely that they made several factual allegations alleging deficiencies in several states solid waste oil and gas management programs including north dakota us which we can test and the person relief in the complaint sought the of the district court to order e p a to proceed to rule making to revise the reverse subtitle d oil and gas solid waste regulations and the criteria for state guidelines that demonstrates that the time the case was filed it was more than just a deadlines case it's just to me what is the procedure that the state argues was violated by entering a consent decree a procedure that would protect north dakota two things one is that we were improperly denied intervention in the district court to participate in that proceeding and then that the response of pleading that was filed with a motion to intervene was a motion to dismiss which was never considered and then to your question the the deficiencies with the consent decree as it was finalized are that it's not consistent or authorized by the statute that or purports to implement time out that is that's what i'm curious about is what is the right that north dakota i consent decree forces that you will be able to comment jack petition us exactly so the issue here is that sixty nine twelve a one talks about states is the only entity in the implementation of e p a s decision whether to engage in the right thing the initial one or subsequent revisions to those the state is the only one the e p a is required to consult with in the development regulations aren't required you know convince them no so you have a seat at that so the question is why no one is excluding you from that and there hasn't been a determination that they're in fact needs to be any further regulation or indeed if the regulation is going to happen that it will be for north dakota so i'm just still trying to get at what's happened so far there you think disadvantages one former impairs a right not to cut short dodge that the that review and consulting which none of which is mentioned in the consent rate so that the concern is that the consent decree is different than the statute and the difference is an omission which excludes our role in informing  incorporate that kind of consultation as a necessary part of the decision whether to issue a new rule then is your concern assuaged well i think the problem judge invasion is that the consent decree is a attempt to wreak eric ries what the statute says he must do and when it doesn't do so in a complete fashion that's the omission is where the substance problem is so i if you read it that way  you know i think it's helpful but the problem is is that we should have been admitted to this case earlier and the fact that the district court didn't do that it did so open a symmetrical standing test which is  error nothing in article three supports that asymmetrical standing test for a state that has a primacy role in implementing a statute directed by congress having a harder time to get standing than  challenging entity that's a proponent of more regulation that's discretionary with the agency so we think that that's that's an area we should have been him in this case and in fact the supreme court's decision in june of this year when a jester were were required to be  case because we at the time of the of the district were proceeding e p a north dakota were similarly situated had the same positions both opposing the relief sought and the standing of the plaintiffs but that's precisely why under this circuits president turned down take down a tester to dislodge at the time you sought to intervene your interest being fully adequately represented by twenty p s a no that's not what they were saying it's that's my point is that the consent decree does not mirror the statute it amidst the first and primary step that involves our our role as a state and so that is an error of law the consent decree has to be the supreme court is our point well i don't know because i don't know that you read the i don't know that you would read the consent decree in a way that would be inconsistent with the statute because the consent decree just doesn't speak directly to that question i assume that the parties that entered into the consent decree assumed that when the process of rulemaking that's contemplated by the consent decree would be taking place that it would be done an amount of the system of the statute if the consent decree was the product of north dakota being properly admitted which we were page two twenty three of the appendix and this is in the now therefore let it be decreed part of the center created and i take this to track ordinary regulatory changing the existing the most that are on the books in either event if he if north dakota says you should change them and make them easier for us to implement or you should not change them in either about and elsewhere makes no reference to a piece of the statute that precedes this review process or the rule making process first of all it omits the discussion about the occur i guess i'm picking up hundreds of lawson's question what this merely suits a deadline for the end of the process it doesn't say that the what you describe can't happen or shouldn't have it doesn't that's right that would be an objection you would have that's right and they presume wave when you have an answer to that so you can prevail in other words i don't know that your if it don't do what you want you're going to have a valid objection at the end of the day to whatever comes out of the us if it's anything more than enough and possibly possible and i don't see that i think that's the district court point to which is just to put a date in there is not excluding you from what's going to transpire from now to then well the while we're on the topic of about point judge kavanaugh about what's the problem then if you can't have a consent decree that spells out the statutory process why only have the resulting and then see if it works out why not just have a consent decree that says the stay shall be consulted with  by e p a prior to the development and the determination of whether to conduct a who me i know i realize that we are confined to their no surprise that this is not in the record but i'm just curious about whether you had any spirits in seeking to consult with e p a under sixty nine forty two and been told no we can't because we have this consent decree i can tell you my personal experience on that judge and cited the record it's mentioned in the breeze  those in a responsible environmentally appropriate manner has grown any peers been our partners in working through that what about all of that dialogue they said well we were really can't talk about that here we're just going to have a dialogue if they went off and opposed our intervention and our partnership was not respected i'm just wondering whether that speaking to the same issue there is the one issue of the deadline or now this is just should look like we still want to talk but you understand them to be closing the door even on that that's right because we had that done and you also mentioned you think town of chester need not demonstrate independent standing when we see the same relief as a party to the case and so my point there judge clark is that e p a s answer to the complaint mirrors north dakota's motion to dismiss in the district w the objection to the plate is standing the objection to the plaintiff's claims is being barred by the statute of limitations and the third stated claim upon which relief to be granted were exactly the mirror image of each other's positions at that time and be scheduled or only does not injure north dakota it locks the town of chester does not change the analysis in this case in town of chester the supreme court's holding is intervene or at least have to show standing when they seek relief that is different from all the parties to the case and what do you do with opposing counsel point that the proper timeframe for making that assessment is an after the fact so it's true they may be true that now we know that relief so at a minimum of her time adjuster they have to show standing at that point and while we're past that point now when they can show sanity because there's no injury from the consent as to the procedural rights issue  sixty nine twelve a and that just does not apply to this first initial determination of review and then potential revision sixty nine twelve a says quote prescribe it the minister is authorized to prescribe i consultation with federal state and regional authorities such regulations as are necessary to carry out his functions under this chapter the issue here is under the above that that's that section which provides that the chapter shall be reviewed and where necessary revise not less frequently than every three years a one does not require e p a to in the initial step of deciding whether to even go forward with a proposed revision to consult with the state of north dakota or anyone else and i think that the the more central point is the court doesn't have to figure out exactly what they want to be means because the consent decree doesn't change the terms of a one year be any of that there is nothing the consent decree that rewrites those terms the fact that and there's a eventual final action that injures north dakota north dakota can surely bring that claim but at this point there so everything will be just make sure i'm clear on this everything north dakota wants in terms of process from here forward under the north dakota if at that point north dakota e p a issues new new sometime new regulations north dakota then we will be in a position to challenge it including an argument that there was a process or consultation  but they can't do it they can't do it now because we don't know what's going to result all those way to continue to provide article for his name and they mentioned that if there's a decision not to regulate that has to be reduced to writing in that stuff or in this result the consent  that doesn't change the legal impact of that determination in any event determination here just to go forward with a potential ruling doesn't doesn't injure them so that this woman i took mr c b to be saying that there they obligations one way or another so if it's right or wrong that will have to be litigated when it north dakota can say you didn't do the thing that we say you wired which would only be down the road we have a final rules i'm sorry that he actually suggested or propose a potential rule has to consult with these parties at that stage it's rather what the statute provides this once it's proposed a war and before it actually first scribe's the regulation then it has the duty to consult but we're not at that stage yet in any event even if we were at that stage they have to wait to be injured and then they could sue in the end to bring this issue and finally e p a is not doesn't shut the door to north dakota or anyone else who wants to come to them during this review face and say we have relevant information here is we considering he's not going to say you know north dakota we're not talking to you or no environmental integrity project we're not talking to you and we're not going to consider or hold the information you some we'll talk to the folks if if they have information they want to bring to the agency you got a minute left unless the court has any further questions you've got covered all my purple points thank you thank you president were party claims interest based on the possibility of adverse regulation you cannot demonstrate article free standing or legally protect the interest in a case that concerns only the timing and not substance of agency making wild north dakota advances number of different theories avoid this outcome you can't get around the fact that each of its injuries is based on adverse regulation that may never come to pass and there's not the subject of this case now as now just complete side of the injury to e i peony for her constitutional purposes they argue that to the extent that you are pushing for potential eventual regulation beneficial to your members interests that they regulations and that will require at least like three different contingencies that occur as eyes of this council further north dakota stated it's possible it's possibly you know that that you get actual will come around to the problem getting these rules and exact scenario and in re idaho conservation league in that case there are fission ors similarly situated environment on tiree project that in which they have standing as their injuries actually existed by contrast the engine industry groups it's not as they would team only adopted the rules in question and then also say that there's a sort of sleight of hand going on in north dakota comparing plaintiffs relieved to north dakota's injury and or red to put it another way of pla with redress ability to have an inherent degree of contingency at issue if it has to be it doesn't have to be certain but it can't be speculative it has to be lightly and this court has also stated that the fact that the agency actors the one causing the injury and the the only one that can resolve that injury is enough for it to be likely on the other hand injury the possibility of future regulation is not enough for injury so step back a bit i will also say that the district court correct all first i want to say that plaintiffs have not conceded that north dakota should have been allowed to intervene or the north dakota had standing before this record that's incorrect and that's not our position but i will say that the district court correctly applied circuits controlling president in finding the north dakota failed to demonstrate article three standing as the circus in defenders of wildlife we purchased that being reaffirmed several recent cases article three standing requires more than the possibility of adverse regulation and in each of those cases over the last few years the consent decree from were very similar view has had great question require the agency to made certain determinations on a set timeline without dictating the substance and the consent decree here is no different it has of program and has to regulate regulatory costs is premised on e p a actually getting to that adverse regulation is is this circus said in in re idaho conservation may consent decree merely prescribed a date by which regulation could occur and nothing about this concentric makes any more likely that north dakota was actually be subject to regulation much less suffer concrete harm to his interests when we're considering standing do we look at that time  mirrors the relief the point of sought and so the standing of the injuries the same whether or not the relief is different just what's different under counted tester taking in the best light possible for north dakota is that the question of whether north dakota actually had to demonstrate standing for the purposes of intervention and i've also say that town of chester does not change that north dakota failed to demonstrate legally protect the interests of rule twenty four a two there is this court held in riyadh of a conservation league that basically and north dakota were aligned if the consent decree doesn't change the statutory obligations of e p a and its relations to its congress congressionally authorized partners states and widest the e p a and glad you asked that question because it it's it's a it's the heart of our point here this case is fundamentally different than idaho conservation league and the purchase of bikies which we're not asking the court to disturb because states are different because states are different the supreme court has very clearly said in massachusetts or zepa courts should afford states especially solicited and while that has not been elaborated on extensively by the supreme court it must mean in this case to administer the after seating and and then go from there we have had an emotional dismissed we'd like to this report anything ending that not being granted we'd like to have a role in making sure that any consent decree adequately and fairly articulates the congress