particular result under those circumstances in our view it is appropriate to reach the merits of that particular outcome and that's why we're starting with the merits here having said that we're both prepared to answer questions on now the sole rationale of the worm is that that result is an ambiguously compelled by the major source definition is actually one twelve a one o here the memos can correct and it should be taken or reminded that's right although in this case there are very serious deficiencies so that should be enough to declare the member invalid no but not necessarily goes to the question no one will have the knowledge in other words whether be properly needs to wait for them to e p a to apply this particular sources you know i think i find the more difficult part of your case your colleagues especially holds that the review belongs here in this court aren't you struck by the fact that our cases are all over the law legislative that's a clever phrase previous regulatory landscape my understanding of the brief is to the recognition that ends up being effectively the law and i think that's the situation we're in here where it's like challenge so challenges in an individual permitting decision is that it would or it would result application of various federal agencies in the unitary executive it was whether what the wildlife did was apply to the rest of the federal government but here we don't have that situation the states are free to  position and that would be reviewable in court right well but in that circumstances e p a would be faced with the question which i think is an interesting question whether  really it isn't a crystal clear statute and that it really is a shove on step two question which would require a broader consideration or of the well  legislative rule disguised as a guide stocking because you didn't really try to impose standards beyond the statute we are going to take the position that i was a little getting position in subsequent parliament proceedings contrary to the site's memo we're going to take the position of the statute means what we think it  or not and forces actually provides things section one twelve such that it's major sources are no longer required to comply with a mandatory obligation long after once not even on the only difference would be if this document had the capacity to force people to comply most importantly the states and he had to meet those not the states are not forced to comply with that the stage can say we think that's baloney we think s ed from applying sort of more emission at more stringent emission standards and that said it doesn't change the fact that it would be applied at a state permitting decision i do believe it still goes back to of a decision and a notice of a reclassification and then it slowly makes its way up to this court there may be several more sources that have reclassified during the interim and perhaps some of those challenges were not necessary for other filed and perhaps a local state court or perhaps the state's federal court there is no this is directly counter to sort of the the preference under three some and i just go back to that but to go directly counter to the preference of three  p a had no authority to do what it did in terms of setting a trigger or time right so it's not only saying that the  definition is clear but it's saying there e p a has no others that a tory authority under the clean air act to address this issue so given that that's sending a clear signal to sources get going on and we'll see where we are and we have these cases in the context of our health and whether in fact the site's number was applied consistently and whether was binding the interview or site to two things one is the transition policies but those transition hoy's are policies are not a pickle here those transition policies that the intervenor cite are not relevant and then the second thing that they intervene or say two or there's two purportedly inconsistent applications over the last twenty three years interveners point to two and those two and one of which is when a source entirely starts using the solvent that triggered the standard and the second instance was when the pollutant emitted by the source was delisted by e both of those were both of those examples we would argue are a bit of a stretch particularly when industry interveners have for the last twenty three years been complaining the sites and i was finding and let me and actually let me put this modification of source regulations moving somebody from area to from major to area the california refuses that source appeals done that yet there's nothing maybe there's nothing but in the but not in the one instance that u k has decided to take just a different position than face memo to explicitly reverse the site's memo was in two that is that is presented before us agency has said that we are thinking of doing rulemaking we haven't yet seen a proposed rule but that also doesn't change and i get and i'm hearkening back so much on and whitman but that doesn't change the upcoming rule making went to the office of management and budget interagency review process on february twenty fifth of this year and that one was the notice and comment your honor we think it's a reasonable expectation that that that will be published in the federal register in g sensually two months from now why should take the law that's another one of those eternal questions  i would say on the rule making that there has been no prejudgment my colleague on the other side made a statement that what we call the twenty eight guidance said there could only be one result of this rule making and i'd like to quote from the guidance page two which is also joint appendix page two of the talking about the twenty tax that will reflect this plain language reading of the statute does not prejudge the outcome of that room making well the wording is framed in a way that suggests it's going to stick with it since it has announced that there is no authority that the agency had by the current statute that is indeed likely what we will propose and then the agency will go through your i think right now is it it's not a question in this particular context of article three jurisdiction it's a prevention question there been a lot of statements in the briefs about  so called backsliding about what will happen to emissions under the point but you challenge  interpretation of the statute and all of the going to judge rogers if there are two situations where your position has been relied on has there been litigated have you been challenges though your honor we're not aware of those and that there's no reason why there cannot be challenges absolutely not and one from of surrounding community or the state would state as are they i believe one of them is in indiana and i am not  your honor i'm not aware of the individual permeating regimes of the states and whether and to what extent in particular states  yes your honor and we've explained it pages twenty eight through thirty of our brief what will happen once the issue is teed up for state terminating authorities and we've shown that this issue could shown that it could come in for judicial review inst in the citizen suit process as your honor just mentioned by local environmental groups who challenge individual emissions as contrary to law and so we think that is the appropriate and proper context in which this issue sure rise because this mere guidance document  is not a legislative rule and it's not final agency action i think your honor put it very well it's the policy position of the agency and it must be defended in subsequent  proceedings and we will defend it in those title five adjudications we will defend it in to the extent were implicated in the citizen positions whose nationwide that that seems like a very sensible and reasonable position i did write about that which you did indeed so it is  rather issued by the agency to advise the public of the agency's construction of the statutes that it administers and of course that's the supreme court's formulation already  said there is no representation that we would issue certain permits or would deny certain permits we will at that time have to make a decision that is independently justifiable independently supported by the record independently supported by what we think is persuasive reasoning in this twenty eight hundred guidelines here's what i did want to be clear about from the agency's point of view as well as from industry why do you why would you want to get this issue now in the sense that i'm a major source out there and i see the way our memo and so i'm making my long range plan two months we think it's a reasonable expectation that a final rule which obviously will the content of which will depend on the notice and comment process that will be published in no you cannot rely on the policy position or rather what you will have to do is make your application to the appropriate state her leading authority no no no my point is and then there's and then the state is going to turn me down and can i then appeal to the  yes in the sense your honor that in that it you cation we will not be able to cite the memo as authoritative we will have to independently make our records make our regulation gives the agency a chance to address this comprehensively as your honor said earlier this morning agencies have multiple tools but you couldn't you could in the meantime have wished these decisions to an adjudication yes position is not that these kinds of issues are immune from judicial review they're certainly reviewable the appropriate time that you want to share my point i'm trying to figure out why you're even going through the rule mike your honor because the rule making gives us an opportunity to with with the benefit of a rule making we would have that additional authority from chevron step two and we would have the opportunity to do that i see to my time is expired i'm happy to answer any other questions of what about the question often hour which is the key question why do you believe the what do you believe how do you treat the argument that the where memo is final because it defacto over rules of prior our regulation memo which of course was not published as a regulation not described by the agency as a regulation but now it is described as a regulation and therefore presto it becomes a regulation and therefore the statement why are memo which could be called a policy statement is actually there for a reversal of a prior regulation which has to be done through notice in town where you do what do you deal with that are based on the we as your honor has previously alluded to the very title of the document and this is it j two thirty two it's a memorandum and the memorandum is regarding dykeman's on timing issues and it was not published in the federal register it was subject to multiple revisions the court has alluded to whether the guidelines whether those nine hundred ninety five guidelines were applied inconsistently and i note that on page twenty five of california's brief there are three citations to it being applied one way we've heard  references to joint appendix to fifty eight to fifty nine to it being applied the other way so he'd be a submit that there is certainly no clear record on  pereira's guidance vises the regulated public on the agency's construction of section one twelve and now the agency has taken what we think is a better view and so getting back to finality your honor it's our position that it does not mark the consummation of the decision making process with respect to any particular emissions requirements those are set forth in the title five operating permits those with with initial decision making by the state permitting agencies and review by by the agency into it's not an action that determines the rights and obligations of the regulated parties and in that regard this this court's cases have used many different formulations but a recent one sierra club the e p a in twenty seventeen and that was applauding then judge kavanagh's opinion in their national mining association is actual legal effect and as we've discussed here this morning we submit that this memo all by itself does not have actual legal effect it is not binding and we're as a consequence of that not going to be pointing to the memo as a just as a it characterize it in this is in the second paragraph a fire e p a guidance memorandum has taken a different position that's on j one right guidance was legally incorrect interpretation of section one twelve and the agency i think in an exercise of good government is announcing to the regulated public and state regulators  of the statements of legal position are not binding either they're not your honor we we are no party no state agency is bound in the context is is perhaps an exaggeration your honor it's we as for parties outside the agency we hope and expect that they'll be persuaded and we intend to inform them of our position as for our own employees yes we expect that our own employees will adopt this very gating position but but the point is moot the agency will have to defend that position it's a question of authority whether the memo is authoritative only law you're relying on the principle of administrative law that a guidance document that is not a regulation cannot be relied on as agencies are not bound we expect that our employees will act consistently with this member i should hope but we we will have to please the court my name is shannon parun and i'm here today on behalf of the interveners on the side of the p a in the case i did want to get to your question judge silberman right ninety five when it first issued it it didn't do it in ninety six when it extended it and modified it slightly in ninety eight it did that again ninety nine again extended a modified and in two thousand and one two thousand and six and then in two thousand and eleven in those specific guidance memos and i will say that these were all modifications know that the last ones were out a quick ability determinations in which they did not apply the inconsistent as to uploading individual a pic of billet questions that they might get at so there could be many many more out there again i'm personally aware of a couple that are not memorialized but in having practiced in the serious and in thirty years it has these are evidence of the lack of consistent application on the record there in pollutant from a particular type of process they would go to the agency and they would say we don't think they'd go to their state permitting authority and say this we don't believe this standard is a political and remember these standards were issued over the course of years so it's not like they existed well you know that to try to years because you get you to cave in many of the one twelve standard cases so so they say ok i'm going to become minor the first and then in two thousand and six of course assistant administrator where are who is now again the assistant shooting out of the question do you know all these situations come up through title five yes because a major source is required to obtain a title by courier so to your question about indiana or mr grant was speaking to indiana earlier that source in indiana it needs to apply for what's called a significant modification of his title five permit under section seven point seven of the federal rules and the corresponding state rules and i have permitted and litigated permits in indiana so the rules are the same in indiana as at the federal level comments are made and then it would go up to e p a for a potential objection and then if you objected to the permit then it would have to be revised to p p and to don object in the standard the source was re was the site's memo it was a guy stuff yes i know so but so e p a didn't have to follow  clients who see a major modification or whatever the technical term for it will have to go through that anymore will be automatic well the federal sites memo enforcement or however we want to print and while the sites memo has been applied as a guide document memo from what you're telling me and what you really have no legal effect on anybody not at this time they're doing a rule making and and to answer your question earlier just superman from from our perspective we think that having it in a rule making so that it is clearly a legislator from rule that would require notice and comment to change regardless of which way it comes out i think is is good government and and people need to know what the rules of the road are and it's the the last twenty years of inconsistent implementation of some sites many who and sometimes  i do want to just make one more point if i could the where a memo has been cast as being somehow and protective and the fact is is that where a memo creates a limb that a mass limit per year and under the match standards that exist under section one twelve those are not a mission cops they are rate based limits and if your production goes up your emissions go up so this characterization that everything is one sided or another is that the argument pending on whose ox is getting gored or not  and i guess to to the point earlier on the definition section one twelve a one provides the petitioners the ability to go to e p a and seek a lower quantity of lesser quantity threshold for major source for any given pollutant that they are concerned about and people have petitioned the u p a for lower major source rush holds for different pollutants over time what freeze the situation with respect to the major source threshold so if i reduce my emissions below and i'm willing to take the limit below the major shore special i have to live with that would because and they said oh but you could increase emissions of dioxin a rick perry or some pollute any pollutant on the list and the fact is that there is a procedure if you think that the time in twenty five is too high congress ten twenty five in the you are case tells us that when congress says ten and twenty five are two hundred fifty and one hundred that's what it means when you don't write into it an additional qualification and e p a if you look at the one hundred two fifty thresholds that were at issue in the your case e p a doesn't take the position that you are forever once you go into the new source review world that you are forever a major source you can go back and this score you mean even on the side no you can you can drop from a major source down when there is not the sight of them was the only instance in which that sources don't they don't have to wait to violate the act nor do we have to wait to try to enforce on the ground so that question i think i mean yes it's possible but women answers it and this court in general electric and  the really the central point is that there's two separate things here one is a source is ability to move from major to take a potential minute and face it in doing that sort of thing for a long time state of doing what they have been giving sources where it would qualify as an area source for the we're now sort of you that doesn't matter but you're still subject to the standard and that's what changes the federal standard that applies so you take the source and  still subject to the mandatory standards so forty c f r sixty three some part why do you have any difference in this simple question we understand from the police whether or not you go from a major source to an area so but still you could you could go from under under the what w memo you can go based on potential to admit you can go from major to area if your potential to admit is is much lower answered that question in that sense this case is indistinguishable from national environmental environmental development association vs e p a or from none of the states are saying oh well actually maybe the federal maybe the federal some part concede that it would be final once it goes to education that it's california or another state of jet or an environmental group was standing objecti would be subject to the us some acclaim such a statue limitations of six years and we're long past that so i do i do think i understand why it would be procedurally subject to challenge that challenge is not there so i do believe that the want to fight you take it up through litigation you get into the court of appeals with a win a little understood but there's also the second part of the inquiry which is whether there are legal consequences flowing but there are no consequences other than position is going to be everybody who disagrees doesn't have to does it their their position has not added anything to the legal position so what do you see as a consequence consequences that well are removing their mandatory obligations that were previously applied to major sources the legal consequences are that states such a california have to know like no longer can rely on the federal regime we need to now turns out that this is wrong and understand that this court can consider that today oh sure well we can shove was somebody given the speech to do and are stand but that is again and i guess we are not talking in this court is those comments that were submitted during the two thousand and seven rule making where e p a regional offices themselves were concerned about this net increase and stay pushing control agencies in the public are concerned about this net increase and actually industry decision making and legal consequences that flow so even though i'm just trying to nail this down pretty quickly i understand yes only if a heavily polluting source no longer has to control its emissions court is that there isn't and so backsliding there is a potential lightning we have not seen strong evidence to counter that but there is a believe significant evidence the record to show the contrary thank you thank you