zero zone and there are two big points that i'd like to focus on today and time permitting out i get into a third since this is a well making that we think is riddled with errors that the two issues that i'd like to focus on most today  that's related to that that the department of energy performed in this role making so turning to the first issue if i may that one we think you know i'm going to stop you because i sort of set out the way i many of the issues that have been raised seem to be simple disagreements with the agency's conclusions rather than abuses of discretion or or honor i the first thing i think i would say is that i think we have you know in this case a lot more than issues of abuses of discretion i think we have clear violations of the statute and clear violations of the agency's regulation and so i think the one i would give you is the biggest example is the test procedure rule which while it's both the agency's own rules and agencies are not permitted to violate their own rules when they adopt them for themselves and second the statute and how does it do that first in process rule that's critical not just to measure compliance which is very important in and of itself but to allow comments to be for if your filing comments based on one sense of what the measurement metric is going to be an agency winds up measuring it by a different one then you have you know a very serious legal problem and in any event in process rule seven see the agency committed itself to get changes to test procedures in place before an issue to change substitute standards you know of course the government will get up here and they're going to say look there were test procedures in place when the efficiency standards were  just procedures and that the two hundred and two thousand and fourteen tense procedures merely clarified two thousand and twelve so how did well we so you know with all of this well first point is that they had test procedures in place from two thousand and twelve and they promised the substantive standards on those two thousand and twelve house procedures but then they revoke them so there's a bait and switch involved there that's the first point in the second point is in they say that they have merely clarified them but that's not incorrect as we describe in the record based on the the calculations that we put into the test procedure rule as it was proposed and into the substance rule as it was proposed to be the changes they made to the test procedure would increase the stringency of those test procedures by two to four percent that's not de minimus your honor the de minimus dr hasn't been even invoked by the agency to defend itself they simply argue that they believe that there would be no substantive effect on the stringency of the energy standards they need to demonstrate that and that's in the statute at at sixty two ninety three to on it says that if the test procedures are changed the agency needs to show the extent to which any proposed test procedure would alter the energy efficiency they didn't do that analysis at all and if you do the analysis it shows that the stringency would increase by two to four percent that's impermissible so they violated sixty two ninety three a one and they violated their own regulations process rule seven three seven c by putting the test procedures out after they had put out the the substantive standards they changed which is because they issued these two rulemaking to subsume rule making and the test procedural making on the same timeline they're inherently intertwined the agency knew that they were going to at the end of the day have the new substantive standards measured by the new test procedures that's what they want to accomplish clearly the test procedures are on lawful because they violate sixty to ninety three if you want to because they by late process rule seven c we think for generally reasons that means that the whole package of these two rule makings need to be vacated and sent back to the agency because you can't unravel that is a court that's the for the discretion of the agency to side with the due they could deal with this illegality either by taking it out of the high test procedures or they could deal with them i don't know taking them out of the hide of the  that when they're measured under the new test procedures it's still a wash or some combination of the two but it's for the agency to exercise that discretion under general not for a court to exercise that discretion so that's why we think both of the rule makings as a package because they were issued as a package need to be sent back and vacated used in the department of energy calculations here i mean it seems to me that your remedy would be to object to that rule making rather than this one in other words why why would the department of energy be forced to account for a change that the e p a may or may not pursue and may not successfully enacted i'd like to say that mr longworth who represents the now from trade association is going to address that issue in detail but let me let me address it at this level and say that we first of all we don't think it's speculative i mean the key refrigerant that this rule is the substantive rule is premised on you know it was highly forseeable to be one that e p a would phase out it wasn't purely speculative speculative and in any event if you're doing you know comparisons up of you know what the agency says about speculative ness it clearly has you know a problem of not being consistent about that because as to this e p a rule making which was going on at the same time it purports to say we're not going to look at that in an ostrich like fashion we're going to stick our heads in the sand about that but they proport your honor to look at the impacts of carbon over a three century time period and that's not speculative so it's speculative to look at what their sister agency is doing inside the federal government that's speculative so they want to ignore it because it would reduce the strength and see of the rules they want to adopt but and they want to consider something that's going to increase the stringency of the rules the over a three century time span which is virtually impossible to make predictions over recent three three centuries your honor yes that's correct they they do a carbon analysis that looks at the impact avoided you know molecule of carbon essentially three centuries from now benefits over that purported period of time whereas they only look at costs over a thirty year period of time and that's a good segue i think into the second big issue i want to talk about which is how the agency really has done a bad job of of the cost benefit analysis here well i mean some  deferential depending on whether the edges he makes various mistakes here in sixty to ninety five section sixty to ninety five to about god there is a highly specified and highly we're taking late it cost benefit determination that set forth in seven particular factors of congress one of the agency to do a really bang up job and cost benefit analysis here and it didn't do it i'll give you one a very very quick example the agency assumed that the what happens in terms of demand for goods if you impose these new regulations which are clearly going to increase costs is that the there will be no reduction in demand for that in other words the price of the technical term is the price elasticities will be zero if i raise the if i double the price on you still people are going to buy exactly the same amount of commercial refrigeration equipment that i submit to you your honour's is crazy there is no basis for assuming that if you increase the cost of a good like this that's purchased by supermarkets and it directly feeds in the food prices that can that the supermarkets are going to not stop buying some of this equipment because the price goes up i mean everyone learns in basic economics you increase the price you reduce the demand it's equipment that's used throughout the economy from restaurants to convenience stores to to grocery stores to to you know across every factor and sector and we're here because when you say sector i'm going to stop you because i'm wondering where in the record is evidence that the new standards will have that is proportionate economic impact on small businesses because the department produced evidence you know that in terms terms of the their review of small businesses they're obligated under the reg flex record regulatory flexibility act to analyze the potential impacts on small business and as well as other executive or up so that it would conveniently come to the right answer for them so they looked at seven factors that are outlined in the in the briefs but they never looked at exempting small business potentially from the rule and that's something that they're required to do both by the act as well as by their own process rule as well as by other executive order because in response to comments that they should have looked at it they continue to go back to the seven factors that they looked at and said that's all we have to look at and then that in their reply brief to the issues that we raised they essentially dismissed  as a non issue because they don't believe there's any private right of of action to to overturn regulations based on the right flex act and yet the courts have said that the key issue here before this court is is read flex analysis options selection and ultimate conclusions were the result of a good faith effort to canvass major options and way they're probably the facts and they did not do that that's the that's the national association of psychiatric health or social ala and that's a case where the court looked at the red clicks analysis and said all you're doing here is checking the box and you're not putting any faith good faith effort into this right folks analysis as laid out by congress and the and as a result that case was was remanded back to the agency but were the red flex act is not the most significant issue here in this and it's for a particular challenge we challenge this and we were the ones that raised the  refrigeration issue because geo we knew that the two main refrigerants they were relying on were going to be banned and the reason that that's an important issue is because they're the most environment are economically  energy efficient refrigerators when you change from those refrigerants to alternative refrigerants you have to change the compressors the chillers all sorts of equipment in the in the piece of equipment which then raises the energy demand of that equipment so by sticking with those two refrigerants it was you know central they're stacking the deck for their final standards now in their twenty ten and twenty eleven perimeter a technology documents they identify this particular issue so they knew this issue  coming back in two thousand and ten and twenty eleven they also recognize that in two thousand and nine when they passed the prior standard they specifically excluded c f c s which at that point were legal refrigerants but they knew were going to be banned before the new standards would highly respected nafta member told them directly you are analyzing for our foreign form one thirty four it both of these are being reviewed at this time by snap groups for removal from commercial refrigeration and if you do the timeline granite to say that it's secular of that they don't need to consider it after they asked for comments and all and then there post hoc rationalization was that even in the final snap rule that came out before briefing they say well  found that resulted of refrigerants in fact may be more energy efficient but not on a product by product basis on a store wide basis and that information is based on experience in europe where they've been phasing these refrigerants out we specifically said we're not going to look at european data so we tried to give them data we tried to help them through this process all we asked was that they modeled one alternative refrigerant to see the impact on the final standard they refused to do that it makes the final standard flawed by the statue because it's not technologically feasible to meet these standards now without those refrigerants they can't demonstrate that it is and so we're saying that that they've created this in possibility where when this standard goes into effect and then when the when the the ban on these refrigerants goes into effect basically companies are going to have one year to redesign all of their equipment to meet a standard that wasn't devised for the new refrigerants they'll be working  it's it's contrary to the statute and it's contrary to their own process rule and it's contrary to through a rigorous as mr karkoc pointed out congress created th statute as a rigorous you know kind of statute to check provide checks and balances for d o b as they develop these standards to just kind of arbitrarily identify various components and then put them together in a model which represents one specific sized unit not a broad range of of similar units it just it there the level of  expertise is just not evident and if you look you mentioned deference earlier even if this wasn't a statutory case and if you look at the deference provisions you know if you look at the cases we cited the b c ca appeals group you know that's where the course said hey we don't look at whether their their model is perfectly accurate or not we look at whether the agencies projections represent arbitrary and capricious exercise of authority in that case e p a was setting act standards they had a model that took a real world data verified the model and then use the model to predict long range effects and the course said you know what it's not a perfect model but they did they made the effort to validate it they explained it it's reasonable to compare that to the columbia falls case and which e p a was using a test method to determine the waste disposal standards and the test method doesn't work for the type of waste being disposed of the agency continued on it was challenging the course said the agency is useable model is arbitrary and capricious if it bears no rational relationship to the reality it purports to represent and we're saying that their model using a fridge or and that will be banned does not and in other instances that we've identified in our proof does not purport to a rational relationship to to the real world market and i probably should have  it was not compliant with the information quality act and you know would we have to split from the d c circuit opinion and he says it be commission if we accept your argument what about him what about the doing the right flex and al yes under the data equality act again that's a statute that congress put in place and i'll let mr clarke use some time in his rebuttal but at the same time it's a statute that the agency is supposed to comply with  that's not the main focus here but it's emblematic of the kinds of of kind of short circuiting and just checking the box exercises that we believe the agency went through when in fact a more rigorous  rigorous standards set in was would be consistent with the rigorousness of the statute and would and would be more appropriate let me turn again to the small basic argument be you know the government of course argues that savings are going to be greater for small businesses and large and why doesn't that adequately address  identified under certain circumstances that there may have been cost savings would disagree with with the the entire analysis the entire analysis is inconsistent with the red flecked statute in their own process rule and had they  me it's not me i can hear you i want them to hear you i don't have to answer you they did it or you can hear now thank you so at the time there was a final deal we roll at the end of th making there was still no notice of proposed rule making from e p a so this rulemaking completed itself before e p a formally began which which is what we say in our brief so there's no question about the timeline there the e p a role was unquestionably by any measure second in time it is notable deal we tried to take into account the question of alternative refrigerants not because it was required to because of what u p a might have done but because there there may be benefits here and terms of opportunities for saving more energy so deal he did want to take alternative refrigerants into account to the extent appropriate but it was an able to obtain that information which may sound strange but a lot of this information is proprietary and all of that is more readily obtained by the manufacturers who are the ones who are making both in prototype and petitioners alleged and on the market equipment using these refrigerants so that's information that's more available to the manufacturers and they were not forthcoming even though time and again deal we requested that information from them in this room making it's also notable that the records here and the e p a record both suggest that these alternative refrigerants may actually improve energy efficiency in many  equipment so there there may be benefits here again that you know i was unable to achieve because that information was not available so the notion that alternative refrigerant refrigerants will make it hard to comply with the standards or will be more costly borne out by what record we have now the petition is claiming that the change of the test procedures is not a mere clarification but that the new method used to calculate the total  display area makes the efficiency standards more stringent you the government say no that's not true how is a court to tell who is correct what is wrong with the math that was presented by ari if you are setting standards based on the size of the you and you change how you measure the size rule which is actually not what age are i want you to look at they make much of the proposed rule which does something different but it's not the final rule so if you just look at what deal we relied on in the two thousand and twelve i would want just one why wouldn't they want us to look at the final rule they just want to do and not stand want you to invalidate the final standards roll is what they want they don't they don't really care about the test procedure they're using it as a means to call into question and the final standards roll and for several reasons which i hope to get into they can't do that but just in terms of the math they're doing they're presuming that based on the twenty twelve rule and when do you know he was in acting the substantive energy conservation standards it was using an internal wall to wall measurement and that's not true that measurement and you know he ha always taken the position is not consistent with the definition of total display area which looks at the projected visible area of product what you can see when you look inside taking an internal measurement and it doesn't bear any necessary relationship to the transparent area on the outside of the refrigerator so they're doing math based on a starting point that that they've chosen not what do you know we had chosen you know it really does seem that the department of energy standard be considered that what's the proper remedy if so is in a moment i would like to speak to why this wasn't a violation of the process rule but to your honor's question that the appropriate remedy if the court finds that there is a timing standards roll wasn't acted there was a valid test procedural rule in place and that standards rule was itself valid petitioners cite no precedent to suggest that a subsequently enacted improper rule could serve to invalidate an earlier ballot rol you still have a test procedure rule and a standard rule that work together and serve to govern this industry as as congress intended but with respect to whether there is a violation of the process role or the statute there in phatic lee it's not do youi routinely issues clarifications of this time type after the fact it understands its own process role which only speaks to whether there's a change or modification not to include within those terms a clarification of this type which does not change the substantive standard and i'd like to try again at why it doesn't actually change the substantive standard here so when do you know he was measuring it was taking the outside glasgow the equipment and it was included in millions and door frames which are the main things that were at issue here we measured before and it's how the measurement continues to apply there was a separate question about outlier cases which is where the math in the briefs appears and those hadn't been considered specifically before this is that in that table on page twenty eight of mason's three no it's our your and i'm talking about i feel it's on page twelve of h r i's reply brief where they they do some math to suggest that there's a percentage increase in energy use from between one and four percent as a result of how this is being measured but again and in doing that measurement they begin they take a starting point that's a wall to wall internal measurement that just isn't consistent with what do you know we was doing in the first place a nd then and then they extrapolate from there but i think it even more salient point given the type of administrative review that we're subject to here is looking at age our eyes comments and the two thousand and fourteen role with respect to these outlier cases they said here's how we should handle them count up to five inches of nontransparent space and deal he said we recognize that comment and we think it's actually not generous enough it doesn't count and not space and these larger outlier cases so will count up to ten percent that ten percent standard counts more than h r itself asked for in the rule making process so for them to come here now ignore that history ignore what their comments actually were and say that that this is a change not contemplated is just not how this is ministry of process or review of it is supposed to work so they submitted a comment d o we went even farther in the direction they were pushing and the twenty fourteen test procedure is entirely valid process is there more information available we carty the reviews that was undertaken by the attorney general or are the petitioners and the court simply supposed to take the word of that office that there are no significant adverse effects on competition so a few things with respect to the letter the letter itself isn't subject to judicial review it's part of the rule making record here and one of the things that you know he was required to rely on together with any other evidence with respect to competition and so what what the court does is look at whether d o we this decision with respect to effects on competition was reasonable in context of that  requires of d o j is to look at the record which it did here at attended one of the public meetings that looked at all of the materials that had been presented to d o d and it made a determination that there would not be meaningful impact on competition here that's all the statute says to do it doesn't say and in the event you find that there won't be an impact show all your work it just does discuss the extent of any impact and it found no impact that's the extent of it so d o  j complied with its requirement and although it's not discussed in the record beyond saying that you know it reviewed everything here it was it was a robust review d o j was at the meeting that something you could tell if you went back and looked at the attendance at the the public meeting list and it provided to deal with the information it needed significantly here there is no contradictory information suggesting adverse effects on competition here petitioners haven't pointed to any and there isn't anything on record so there's nothing to call into question here the conclusion reached by d o j returning briefly to the test procedures point i think i do think it's also worth noting since this is not a point that petitioners observed but the total display that the measurement that's at issue is not one that actually applies to all of the classes of equipment that are issue it only applies to some of them and these are the larger remote condensing units which may not be a point of tremendous significance but  it does seem worth noting just by way of clarification that now are you talking about that tape page twenty no but i'd be happy to talk about facts you know the one the chairs the percentages of energy reduction that are required for units with them with outdoor isn't that what you're talking about now no sorry i was back i was back on the test procedure but i would be happy to talk about the comparative reductions if your honor would like there are i mean our number of things if you're on who's concerned about that table that what we say in our brief and what continues to be true is that the that can present reductions as just a misleading figure for two different reason so you're saying the calculations are incorrect no you honor but i'm saying that they don't mean what petitioners would have been mean so they try to say because if you know transparent doors are are reduced to a greater percentage than solid doors or open containers that something must be amiss and that's simply not the case that it is that's just not an inference supported by that there are two reasons why the percentages are different one is that these equipments were starting at different regulatory baseline so they aren't all governed by the earlier g o p rules some of these standards were cited through a congressional process some by d o e and as a result they were set in different ways and so it's not going to be an apples to apples comparison for the starting point but even more significantly the technology changes are different demand in the industry is highest for transparent toward equipment and so the changes to the available technology is there are greater so when do you he was looking at a vailable technologies that could be implemented to improve efficiency it found more technologies available more improvements for equipment with transparent doors than it did for solid or open units so and that's that's part of why it's so important here to and the statute does require that deal we set these standards by equipment classes with respect to each class of the equipment deal he looks at what new technologies and by new i mean since the last regulatory action that looking into the future but what technologies are available to improve the efficiency of the baseline units and the answer to that question will be different depending on the type of equipment you're talking about and so that's what the what explains the answer to the charge on twenty  petitioner's try this is nothing in particular tries to get at the question of you know comparisons between these products last of than a number of different ways and again without any specificity tries to suggest that somehow when you look when you look at these products together and compare them that we know there must be something wrong and each way they try to do that ignores the broader rule making process that took place do you used a familiar methodology here that is used in prior rule makings and that was not impugned in the rule making process in doing that it studied a representative unit figured out which technologies could be used to improve it the additional cost of implementing those technologies and then it looked at a number of different places the standard could be set for that unit it then went on to to fit that data point to the market data and one thing that petitioners don't acknowledge is that if you plot the standard for these equipment classes against the existing market data relying on information for example from the energy star directories there are units already on the market at all the volumes that are at issue here that comply with the standards that have been set by d o b so there's not a question about the usability here these are standards that existing units are it is and as a regulatory matter really continue to take the position that the two don't account for each other in the way petition once suggest they should that there's no cumulative burden but what i'm saying to you he did that was energy are at energy star ends up collecting a great deal of data about how equipment is performing and deal he looked at that data about how equipment on the market is performing and it found that many pieces of equipment many units are actually already complying with the standards that deal with respect to the consideration of the benefits of reducing carbon emissions as we stated in our brief all the deal we did consider that a and it was appropriate to do so but in the context of a statute charging the agency with increasing energy efficiency energy savings that analysis does not actually make a difference to the result here if you just lock in this is shown in the final rule  table one point on page seventeen seven thirty that you'll see that the benefits to consumers alone setting aside these environmental benefits just the benefits to consumers clearly outweigh the costs to manufacturers and so in the record clearly presented to the court you can see that any error with respect to the emissions benefits analysis is harmless if you were to vacate and remained it's clear from this record that the outcome would be the same based on the analysis  t you have already done let me go into this the department of defense the insulation options by saying that this is just one way for a manufacturer to it she's the required efficiency so space was concern a manufacturer could change some other factor instead where in the record is your evidence that the standards could be changed with other changes that did not tha is it is in there if you want to can provide a page cited after the argument but you know we consider that that would be helpful ok i can look at that and i believe vacuum panels are one of the technological means available to doing that but even more to the point and also something dio you said in the record is that there are units already on the market that one meets the the new standard with just doing what they're already doing and these are these are the type that equipment in the class that petitioners are concerned about with respect insulation there are also models in that class that are already using even greater insulation thickness than what do you know he was considering here so again the idea that it's not feasible all within the parameters that they're talking about is just not borne out by the record are you helping certainly since it's what your argument sounds like no no your honor and i what is possible so there are many means for these companies to comply with the standards and some companies are already doing it with respect to the small business analysis a few things there as counsel for now acknowledge that the standard of review there is good faith it is a particularly deferential review and the idea is to look and see whether the agency actually took account of the impacts that the rule would have on small businesses and dio he clearly did that here and a number of ways with respect to both manufacturers and consumers it undertook a special subgroup analyses where it look just add those entities of of that size and with which with respect to consumers i did find that the benefits for those consumers would likely be outsized as compared to the benefits for other consumers manufacture the burden would be greater than for other manufacturers because of the percentage increase to our research and development cost in relation to total revenue that acknowledge that there would be a hardship there that's looking just on the manufacturer side and it also considered significant alternatives to the rule as the regulatory flexibility act requires and it did not find that any of those significant alternatives would satisfy the statutory standard of of the substantive statute of africa small businesses which is the thing that right now if i'm as a man both petitioners are particularly concerned about but the statute doesn't require it to if you if you look at the well there is that there are several reasons why exempting them would not have been appropriate so first that the point that the statute doesn't require it is significant because that's that's the main point the petitioners are making and what the statute says is that it require agency to consider any significant alternatives to the proposed rule which accomplish the stated objectives of the applicable statute that's up and d o b has concluded that exempting small businesses is not consistent with the purposes of africa to contemplate the single national standard for each equipment class and contrary to what petitioners are saying if you examine small businesses you don't have a single standard you are subjecting small businesses to a different standard so to that extent there's tension between at and the regulatory flexibility act there is also a specific provision in app that contemplates how small businesses can seek relief if they want which again suggests that congress has provided us with specific means for that consideration and that it need not take place as part of the regulatory flexibility analysis the such as language which also introduces to examples provided it is also not mandatory in language such as just in  every day speech is to suggest suggestions rather than mandatory considerations and petitioners do not cite anything contrary to that the one case they cite has to do with the phrase including which  is not a purpose and i'm but it getting back to the standard here the question is whether deal we paid attention to the burdens and benefits the role would have for small businesses and considered what if anything to required to do so there's no real question about what what more could have been required elasticity which is also something that came up in the earlier argument a few things there one this type of economic judgment is precisely the type of thing that is entitled the agency entitled to a great deal of deference on  and the record does support to ease assumption in that respect first we're only talking about a four percent price increase not not what petitioners were talking about with prices doubling but more to the point at the type of equipment we're talking about essential equipment that doesn't have any substitutes that if a rich grocery stores refrigerator breaks it's not going to get a bucket of ice and put the ogre in the bucket you need a refrigerator and so when the refrigerator breaks the grocery store is going to purchase a new the projected equipment life times for those businesses that typically purchase refurbished equipment or or engage in her basement namely small businesses so it did increase those equipment life times it took that into account  and that's what it was required to do that's a reasonable way of responding to the information in the record in a few places dio he does note that it didn't have additional information to model certain of these economic things contemplating the theoretical possibility of the facts not accounted for but that that's all the agency was doing there was was acknowledging a theoretical possibility in the face of other evidence that wasn't before it so based on the record actually available required at every step of the process to identify precisely the legal authority it was relying on a rule making is not a legal brief in the social cost of carbon analysis deal he didn't have to identify with specificity the where its authority was to consider the benefits of emissions reductions of course it has that authority and a statute that's about the benefits of energy savings it's easily accommodated by the statutory factors there and it was presented in the discussion of energy savings to the nation rule making as a tremendous example of the administrative process working well there are three different technical support documents and one hundred page final rule seven hundred plus page technical support document supporting the final role and a robust exchange between stakeholders and the agency and throughout this process deo he has welcomed input made adjustments to input and explained those adjustments and how it's been making its assumptions so i think there's this constant  suggestion that has been cavalier and not explain itself is wildly misplaced in context of this rule making certainly be happy to address any other concerns of the courts and this will be my last opportunity but otherwise we we think that they were making with a good one please the court first maybe before i get into it i just like to ask if if there is an option to give in to the government to say something about that insulation issue we'd request an opportunity to go on our access and like kind of your honor i think you hit on the theme of what we think is wrong with this rule making which is that they dealt with many issues in an entirely cavalier way and i'll just start with that with the price elasticities of demand issue because you know you can't just claim deference was i think what miss powell was saying and saying well you know  to pile the rule making documents up and say we have hundreds of pages it's not an exercise in that it's a question of what is the analysis that they actually did and to just detail at that issue really is a great poster child because if you increase the price of something you're going to see the demand decrease they have the argument about the you know the case with the younger but you know obviously like where the rubber meets the road is yeah you know maybe someone would continue to buy the case even if the price increases some people will but the point is that what happens to small businesses who can't afford that they'll go out of business and then what's the net effect of that across an entire demand curve it's a reduction in demand and that's exactly what we're saying it's just irrational to say that there's not a reduction in demand i don't think that miss polly has a response to  that let me try to take the rest of the issues in the order they came up time permitting so first was the issue that your research were about small businesses what do the agencies say i'm going to read you something this is the agency speaking this isn't me speaking the agency said small firms would likely be at a disadvantage relative to large firms relative to large firms in meeting the amended energy conservation standard for commercial refrigeration equipment they faced disadvantages in terms of access to capital the cost of retooling production lines and investing and redesigns the pricing forty components as a result deal we could not certify it could not certify that the med is standard it would not have a significant impact on a significant number of small businesses and that's at seventy nine federal register seventeen thousand eight hundred eight hundred fourteen so that's the agency itself admitting that it has a small business problem and seventy percent of the manufacturers regulated by this rule including my client zero zone is a small business it's very serious issue let me tie that to the issue that you raised as well your honor of  g letter because that letter is about the issue of what is the impact on competitiveness because you have you know you're just proportionately affecting small businesses and you might drive them out of business create more concentration lead to antitrust  effects and all you get from the from the eighty's delegate is a letter that says i've concluded there's no impact i mean we're not asking as miss powers trying to say for all work to be shown but this is the equivalent of showing no work and it really provides you nothing to do a review and that's contrary to the way administrative law works and we think that that has to be reversed as well the that an issue of speculation that i raised you know you know if we're talking about what happens with the refrigeration rule or we're you know talking about what happens with other issues the agency needs to consider we think they flatly don't that issue in an inconsistent way agencies can act inconsistently you know they they were perfectly willing when it would increase the stringency of the rule to consider impacts going out for three centuries this paul had no response on that issue on the issue of the measurement of the total display area your honour's one issue argument i didn't get to make but i'd really like for you to look at the briefs honest to look at sixty three thirteen see one of the statute that provides a lock in so this is a chevron step one issue that says that the test procedure and that is that the measurement of total display area is to be measured by  the h r i twelve hundred stander and here the agency changed the h r i twelve hundred standard they flatly can't even do that so they have not only the problem of the sequencing problem of getting this test procedures out after the subs to rule when their process for all commits them to do the reverse they not only have the sixty two ninety three one problem they have this problem of the fact that they don't have the authority to change the test procedure from the r h s procedure it my red light is on i said i see that my time is up  you'd like i and i'd like to continue but i will sit down if you directly to and i think i have to direct you to thank you please the court i was also would like to respond to a couple of the issues that were raised and discussed again this is a statutory issue the statute says no rule may be affirmed unless supported by substantial evidence deal we can't meet it statutory obligation to show energy efficiency will result from the rule of a process rule that says use transparent and robust analytical methods must be able to explain and reproduce the results they had a lot to model in which we couldn't reproduce any results they compared it to take downs on one equipment type an entire broad range and and said it generally agree they have there that they indicate that we weren't forthcoming with information on alternative refrigerants that's just not true if you look at our brief pages one thousand to twenty two we highlight a number of comments throughout the entire process where we said here are the problems here's how you fix it go look at europe go look at it elsewhere and they said oh we're not going to look at europe we don't want to look at that until later on while the sun e p a looked at it there the insulation issue if you don't mind i'll give you a little bit inside on that is there a unit out there that works with increased yes but it's not the typical unit the typical unit is in a restaurant where it is locked in with a footprint and geo he says now you have to increase the insulation on the sides of the refrigerator well we can't do that because all the trees that go into the refrigerator are the same size that go into the oven and going everywhere else we can increase the footprint when this we're rebuilding all the restaurants so yes there's a standalone unit somewhere that uses wider insulation but in the real application of these technologies geo we just doesn't see the impacts of what they've tried to do here and the real impact on small businesses my colleague identified the same thing i was going to on the impact on on small businesses and yet the government's position is it's not that high a bar what we think it is a high bar we think that they have to be this is a rigorous statute and we think they need to that congress did that intentionally and they need to meet the rigors of the statue and even if it was a deferential position they haven't defended and explained invalidated their model in a way that these other cases have identified where they've provided discretion on those kinds of things if you look at the other cases we've cited that that saying no the agency has not done enough on their model we think that that issue applies better here than than than in the other cases and then finally in terms of market compliance again we said there when we identified that there linear equation had a significant impact on small refrigerators less than seven cubic feet the kinds of refrigerator's this would on bars with glass doors their response and their brief was well you're just picking and you know you're nit picking and they're not many of those units those units make up twenty percent of the marketplace so they're not much of the either the market or of how these things interplay in the real world is lacking in this rulemaking it's a tough challenge for them they they you know recognizing that they're trying to do things that are engineers that are the best in the world takes years and ph d s to do and now they're trying to come in and follow along we tried to help them every step of the way and and and unfortunately they they they dismissed a lot of our comments and a lot of our approaches but we think they did so with at their peril based on the statutory obligation that they have violated and i think if you look at the at the chronology of when the rule makings were adopted we have a footnote in in our brief on this i think it's the opening read but it might be the reply brief where we show that you know it's like two you know  trains going down the track parallel to one another and then you know as they're that even though they're subject to rule started first the test procedural suddenly comes in and like you know locks in first so that the the net effect of these two rules together is that you're going to be applying the new stringent standards using the new test procedure when the the rule making that was adopted with this subject of standards and it said that it was going to be applying the own test procedures it's a classic bait and switch it's something that the agency never explains and for that reason your honor and especially not to burden the court to stop with this issue that's why we think both of these rules need to be vacated they need to be vacated because they were intertwined with one another and because you don't know you know exactly what the agency would do to fix the problems that have been identified there are rampant problems with the substitute rules there are there are clear violations of law in adopting the test procedures you really have to just vacate both of the rules and send them back and let the agency decide how to fix the mass and how to decide you know which do they want the new test procedure they want the new stringency that they want to new combination of the two it's not something where the court should decide which one to vacate the two things are inherently intertwined and they're both a mass thank you thank you very much thank you to all parties and of course the case will be taken under