the court n s p has article three standing and the right to intervene in this case because it owns the power plant that is the sole target of the plaintiff's complaint what plaintiffs are trying to do is to get a court order requiring e p a to take action against this specific power plant and the sole focus of this case on one power plant and a genuine legal dispute over whether has the mandatory duty to take this action is what distinguishes this case from all of the other environmental standing intervention cases the plan of site this complaint puts and of species interests and uniquely it interests at issue and it therefore has the right and the ability to be heard i'm going to start with article three standing in then address intervention and i'm happy to address any point questions the panel has  article three standing i want to go straight to the interests at stake because if there are interests at stake causation and redress ability directly followed because the injuries would be caused by this lawsuit and could be redress by ruling for  hat about the as i read the district court saying that the only issue here is a legal question what's the effect of the department of interior is letter to the e p a and what role does your client have in that initial legal question that's that's right your honor what what is undisputed is issue is whether there's a mandatory duty at all and n s p has to interest in that and the interest we allege is that the plaintiffs in their complaint are just asking for the court to order e p a to start de novo if it were ordinarily going to exercise its discretion in this kind of a rule making it would go out and determine whether impairment at all then it would determine whether there is anything that's reasonably attributable and only then it would figure out where the sources and if there's any technology that should be imposed that's what would happen what plaintiffs are trying to do to short cut that process and skip the first steps that would protect shirk oh by requiring e p a to go straight to the place where there is already a conclusion that it is contributing visual impairment and enforce technology on there that's what the complaint does so you're saying that if you don't get in now and the judge the court does allow that leap over you've lost any opportunity to have any input in what you think should have been the proper proud as exactly right around this is the proceeding that will decide what is ordered to do if it's ordered do anything this is the proceeding that will determine whether skips over those steps and that's why this the order that start in the plane is really on the table that's how i read the magistrate's order your honor that instead of assessing standing at the air because you have to take the complaint is as raf that's right you have to do it and you have to assess it at the outset and i tell you there's a really practical reason for that and you can read through this briefing i'm very curious to hear it my opponent describes their position as today because it is shifted so much and one of the reasons that you're standing in intervention at the outset on the pleadings is that that's no one and it's clear and you can do it right away whereas if they later try to back off that's not clear it's not in writing it in the can't be assessed and so that's why this course precedent is universal that's the way to do it so i do think that the magistrate judge look to the end and said look if they are alleging what they're alleging are trying to shortcut all these steps i don't think they're legally entitled to that and therefore because i think n s p is going to ultimately be protected on the merits ruling it doesn't have standing to be here in the first place which i got to say is somewhat ironic to be excluded from a case on the view that you're so likely to win that you can't present your winning argument  it's treated as a spazz out of order for purposes of peel right it's a final order resolving completely this for appellate jurisdiction i think there are certainly reasons why you could a flaw but that it should have been treated that way there that's not something that the parties briefed and it isn't relevant to your honor's on appeal because regardless of what he had to do you are doing ok i won't take any more your time on that then but i was curious no that's fine i think you know in so so that injury right arises from this attempt even at the most narrow phrasing of where they are now even if you can get there is they're trying to skip the steps and that is legally the reason that e t a is not adequate to represent an s p s interest in that it is sort of twofold first of all when you get to intervention you're talking about representation the standard is as ordinarily very liberal in its construed in favor of the intervener and the reason is this in the course interest in everyone's interest to wrap up all the affected issues and deal with them at once rather than take the risk that somebody who will be affected will be let off or left out and then have to collaterally attack after the fact which is what would have to happen if an order affected in a speech here without it being involved this court's precedent says that sometimes that liberal standard is different when there's a government entity that can be held to be charged with representing the interveners interests but the precedent is clear that that presumption of adequacy arises only if the government entity is charged with representing the interests of the intervener and that's just not the case here the e p a is not charged with representing the industry's interest it's called the environmental protection agency that's what is charged with representing which would slade's into another issue i'd like you to address what what about the concerns that the enter with your client intervening it's somehow a complicated issue brings in more things that need the need to be resolved at this point can you address that part of the yeah there are two responses to that number one that whether it will complicate proceedings is relevant to permissive intervention but not intervention as of right and we have not appealed and permissive intervention search just not it played that the second response of that is the issues that we are raising are not extrinsic to this litigation they are directly at stake as you identified the core question is does e p a have a mandatory duty to act on that issue we have independent legal assert why it doesn't have a duty act e p a s position is they take the department of interior is letter as valid as a valid certification they grant that and they say nonetheless we have discretion what n s p says is it disputes the validity of the letter in the first place on two grounds saying there was an inadequate factual finding if you look at the peers own regulations that letter doesn't manager or anybody else to certify the existence of reasonably attribute visual impairment they have to go through this whole step of monitoring and they have to do studies and do that and if they do that then it's valid if they don't then it's not valid and that's the part that you want to focus yes that is uniquely what n s p will be arguing e p a expressly submitted a pleading to the court to say they weren't going to make that argument right it is not in their interest they're interested in preserving their own discretion which they're taking care of our interest is in saying that that this certification is literally invalid to create any mandatory duty and that's relevant and i speak here specifically because of what would happen you know cutting off the first steps of this process that that e p a would ordinarily follow and it's also interest rates it's implicated in this broader interest because if it's this easy to trigger mandatory duties without a factual foundation this could create problems for honesty and all sorts of places so it's legal interests and it is economic interests are directly implicated here on this point of adequacy of representation the one thing i want to point we started all sorts of cases in our brief in precisely issues like this with environmental groups or regulatory groups where the courts including this court as well as other courts of appeals have found that the government agencies are inadequate to represent either the industry on the one side or the environmental on the other you miss soof was was the park service and it was snowmobilers versus environmental groups and the court found that the government wasn't adequate to represent either because there are these competing interests that are unique the cases that plaintiffs cite here in their briefs none of them involve an agency in an environmental issue like this all of them one of the volves you know students with access fees and other involves parents who are smokers where the interveners are just one group among the general population rather than somebody that has a unique separate interest at stake which is the position here oh i'm going into the time that i i'm happy to answer any questions otherwise i'll reserve the balance of my tie well but you reserve it and we'll hear from your counterpart mr ruth my name is kevin ruther i'm from the minnesota center for environmental advocacy here on behalf of the conservation organizations i want to address two main points related to end of species argument that it is entitled to intervene under rule twenty four eight the first being it's argument that it's entitle to intervene because this case asks the court to impose pollution controls on sure go the second being its argument that  should be entitled to intervene because of its interest in whether e p a has a mandatory duty and just by way of background before i get to those two issues i want to just point out some of the simple facts that are relevant here  the first being that in two thousand and nine the conservation organizations petitioned the department of interior to certify that the visibility impairment in voyagers national park was reasonably attributable to  the power plant and s p didn't object to that petition it didn't put any information before the department of interior back in two thousand and nine months following that the petition was circle and it said that it was planning to do that rulemaking in the next few months months passed e p a didn't act and the conservation organizations then brought this mandatory duty on reasonable to lay cl and that's what got us here so turning to the first issue that i want to address does n p c n s p have a right to intervene based on its allegation that this lawsuit could result in an order for it to place pollution controls on go they say that our complaint as you've heard if successful would result in an order that implicates their predictable interests and would impede their ability to protect that interest in two ways first they say that they would lose the ability to for in order to manufacture an interest here it's simply not the case that the plaintiffs are asking the court to order an s p to install pollution controls or it's not even the case that we're asking  to require an s p to install pollution controls and the a political regulations make that clear if you turn to the remedy section of the complaint and you look at the prayer for relief what you'll reasonably attributable visibility impairment it requires e p a to determine the source of that rabbit if the term it requires e p a to if it farai if it confirms the says for sure go because if you look at the definition of what gravity is in the federal regulations it refers to reasonably attributable visibility impairment from a source or group of sources and rob by definition implies that there's a source for the visibility impairment so we're not we're not disputing that this case is about should go it's just that we're not at the point yet where determination request would that have been so unclear that the e p a wouldn't have known what to do it was it some obligation to identify what you thought the sources war or is that the e p a s determination interior you're saying it's sort of just sort of bubbled up from what had already happened previously and it just sort of continued through what you thought the process already was going on regarding chicago in other words you said that there was something in the federal register saying this is going to start so you're sort of assuming that that's what everybody understands it to be no let me back let me back up so it back in two thousand and nine we requested that the department  by the forest service by e p a and by us so there's plenty of evidence in the record relating to modeling from the regional from the development of the regional he is  the state implementation plan that shows that sure go is a very large source of pollution and that in fact it is having an effect on visibility in then the national parks what's the purpose of paragraph thirty eight of the compl e well your honor i think that paragraph thirty eight says what we ultimately believe the outcome of a regulatory proceeding ought to be claim about just making a determination in general i think your honor you're correct the complaint could have been more skillfully drafted in that in that area  given where we are today but the relevant point i would i would point you to is what we asked for in the per for relief well i understand it on the court but it doesn't have to be read in light of what comes before  you're saying that you don't think on this complaint the district court could order xcel energy to install no your honor because we don't know what ravi bert is and that requires a to have a rule making and if i could just go back to the complaint has to be interpreted in light of the regulations that it what we pleaded you're arguing the merits i like the magistrate well they couldn't possibly get what they asked for so we should let excel intervene no your honor i think what i'm arguing is that you have to interpret what we played in light of the at the regulation that we are saying triggered the mandatory duty it makes very clear that e p a fines needs to determine bart and i'm quoting here where the impairment in the class one area is reasonably attributable to that existing stationary for stationary source in other words e p a has to go back and confirm that that stationary source is the source of the rabbit this this issue also of whether or not there was good evidence that the dio i was relying on e p a has to go back and look at that evidence based on the plain meaning of the regulations here if you look at the definition definition section of the cited regulations reasonably attributable means attributable by visual observation or any other mean any other technique that the state or in this case a deems appropriate so reasonably attributable by definition requires e p a s involvement far from us trying to skip over steps here what n s p is really trying to do is skip over steps all of this under the clean air act the clean air act is written in such a way that these determinations need to be made by administrative agencies this is very technical stuff the dio i sort of occasion is based on complicated air models and n s p is asking to intervene in this lawsuit to have the court basically hold a trial on these technical issues that's not what the clean air act had contemplated here i just want to move quickly to the second issue  which is whether n s p is entitle to intervene as a right on the narrow legal question of whether the dio i sort of occasion triggered a mandatory duty and this argument fails for two reasons one is that it doesn't have the requisite interest the other is that it hasn't demonstrated that e p a is unable to adequately represent that interest so first i remind you that  and twelve that it was going to quote conduct further rulemaking regarding ravi berg for sure to within the next few months so what we're talking about here in terms of an interest is really the difference between a court ordering e to conduct its plant room making by a date certain and e p a having discretion to do the rule making on its own schedule industry's interest in that narrow legal question of whether a room making is mandatory is not a direct substantial and legally protected all interest that would entitle it to two intervention under rule twenty four if it were every industry possibly regulated by rule making would be entitled to intervene in every mandatory duty action and that's plainly not the case and s p hasn't cited to any case where simply being subjected to have to participate in a rule making was found to be a legally protect interest and especially here were e p a has already said it intended to do the wrong making it's hard to see that there is an interest at all the cases that n s p is relying on and you'll recall the conservation law foundation case had to do with the fishing groups there's a sierra club case from the ninth circuit where the city of phoenix was allowed to intervene those cases involved requests from the court for orders that would have directly affected those intervening parties here we're requesting an order for e p a to enter a room making and the industry groups that were discharging into the polluted waters tried to intervene they argued just like n s p is arguing here if the plaintiffs are successful we're going to have to install more pollution controls that will be expensive but the court rejected their intervention and the reason is because the request in that case was to force e p a to identify those impaired waters the court said we don't know yet which waters are going to be on the list hasn't acted the point to this lawsuit is to get e p a to act and identify the waters and so therefore you don't yet have a protective all interest in the same is true here the point of this lawsuit is to force the p a to do the rule making that it said it was going to do back in two thousand and twelve we don't know what the result of that rulemaking is going to be we don't know if they're going to confirm d o eyes allegation that there is a reasonably attributable visibility impairment due to sure goes pollution if they do we don't know what bart is going to be we don't know what the best available retrofit technology is that a p a would select for sure go they may determine that it doesn't need b judge read their complaint that way that's a dent on page twenty two at no nine where the magistrate specifically said look what i'm hearing from plaintiffs today is different from what they allege in the complaint so for purposes of standing and intervention which are as as of the complaint we think it's clear that the complaint puts our interest issue what i'm hearing now and in today's players taking a step further back from anything they've ever said even in their briefs up to this point for the very first time today they're now saying they think e p a has the freedom to see to the side that there is no visibility impairment they've never said that in any brief which is again why you do this on pleadings not based on shifting things if they want to argue  their own change of action that's a separate set of standards that is really hard to me and they've got to make it legally binding if they want to do that on remand and we can do that but the only issue and and they amend their complaint they could in if they want to amend their complaint on re mand and to make this formally binding on there and then argue that because of that change of position this we no longer have an interest because it's moot they can do that that's not the posture of then they've never complaint and their injury and redress ability right there claimed injury is that their members are suffering from impaired visibility in voyagers and i'll royle and that it's caused by shirk on that can be redressed by getting an order directing  to install new emission controls that will fix a visibility to the very same extent that they have injury causation redress ability we do and as p does on the other side it is equally a direct think they would have standing to suit attacking this specific power plant then the federal courts also have power to allow the owner of the power plant to be heard when what they're asking is really extraordinary to hold that the u s courts actually lack constitutional authority to allow  speech to be heard here that would be an extraordinary thing it's never been held in a case like this in it shouldn't be the last thing on this is is my opponent addressed a couple of times a piece statement that it it may exercise it discretion to do this the reason they're fighting and what to do to do a rabid bart determination if you pay exercise discretion to be a de novo but the reason we're all here is that discretion can be changed and e p a previously did the full review and found no ravin voyagers and they're trying to make it skip that and get to the emission controls precisely so that doesn't happen again all right thank you for your argument pre shared both coun