monitored but no matter how the court ultimately rules on that point it's important to the state that the decision in this case accurately described the designation process itself section seven modification power but that power is limited to instances in which it's necessary for the agency to modify it as a nation as in contrast to the language in the next part of that provision the power to make whatever appropriate as nations it wants to when a state does not submit does run a pretty sharp distinction between necessary and appropriate that's an important premise of your argument is just a matter of table setting for the designations process is wrong or in those two words have different dictionary definitions and in the clean air act context the supreme court in michigan versus e p a and union electric versus e p a both noted that necessary mean something that has to be done and so e p a has come back and said that we're cherry picking dictionary definitions there really there's no dispute act that required something to be both necessary and appropriate and the court said that it was just one of one of those things and the other you know us would be different and so but to get back to what necessary means in this provision there's really no dispute because on page thirty five thousand one hundred and thirty eight of the challenge and action e p a says that necessary authorize to make modifications that are required to to make the designation comply with the statutory language agree with your table setting for texas to dance and position here is there something in the meal that would help texas i'm sorry your honor i just called it a meal cause you said you were setting the table ok i'm going i'm just out of trying to go with your metaphor yes actually what if we don't see the big semantic do you have to win on this semantic point to win this case well the big fight here is about the dictionary act as it applied as the as the case relates to bear county are our point about the designations provision is that parties  including texas as used language on this in the past and the good be hopeful of the court just follow this the text of the statute of but moving to the meal as your honor put it the dispute really comes down to whether the dictionary act well it's not forfeited guard because the dictionary act is something that courts must consult when considering any act of congress that's something that the supreme court said hobby lobby and so you would be like saying that a party has to tell the federal government that the singular includes for all or the word person includes corporation is just background principles and the state's designation letter said that under the statutory text and the relevant modeling data the state could designate bear county and attain an area and that's all it needed to do to put this before the agency now i mention the modeling data but the monitor data is also relevant because the dictionary actually looks to the context of the statute and if i could just make a brief point on that the broadest context here that we're talking about is the clean air acts goal of bringing all areas of the country into attainment by the deadlines that e p a sets and so if we have data showing that an area will be entertainment by that deadline there's no need for federal regulation because the other part of the clean air act that's important is that the primary responsibility for ensuring compliance with the next falls upon the states data and the modeling are important the monitor data show that there were two monitors that were over the next but they also show that they weren't over by much that means that i could  context and you just mention the marginal so the marginal i'm looking at seventy five dollars or whatever that has to do with classification for non attainment areas and one of those is you know is as a marginal area right now as a marginal area it says you know that means that is the attainment date will be three years right after a certain date why doesn't that are irregular and why doesn't that inform the context of the counsel i'm going to ask everybody this i'm i'm a little bit troubled by the fact that we're in october of two thousand and nineteen about this about the sept and  in in the by two thousand and twenty you think you are going to we still have to do this even though it's basically retroactive at this point and we're taking it's taking so long as much  of when i'm i'm troubled because this these things happen often where it's a long time after we had one a few months ago where it was with a we were well into the next period and we were dealing with one a previous one so how does the timing of look at the modeling right but if we want to get an opinion out till two thousand and twenty and then you aren't in bear county is in compliance says the seventy p p p or whatever it is then what does come into this time period that you think it will be based on the modeling they have right now what happened i think that would be data that would be before the agency and the agency could then conduct a modification review which if this court agrees its taxes here would include all of the relevant that we address the relevant data point whether it should have included that even if you lose on the dictionary point the dictionary would be the only reason we would look to that future data right so if we sat it they should have looked at the home so we should we address well they should really look at everything that's that's that's the more prudent practice do we need to i mean is it appropriate st to address that even if you're not going to win on the main argument that you're not in compliance i think would be helpful for the court to say what's with any area that contributes to ninety minute nearby area are you asking us to read into that word contributes a one percent rule your honor we do not believe the e p a is required to  adopt a one percent threshold but we do believe that e p a is required to explain its departure from past practice and here d p has consistently treated the statutory term significantly contribute which is a step higher than county so applying that one percent threshold that e p a has consistently applied in the past you would find a contribution here over we are not abandoning it we would we do believe it's an important issue for the courts to decide normally would starting with that that's correct your honor and i didn't want the substance of the so there's a few points on that st of all we would not do that opinion did indicate that it was not even intended to be binding on the panel the merits panel in that case that you know the court mentioned that and i believe you wrote the opinion that venue is a very context specific consideration and that the further development of the case might indicate that the designations were based on designations for counties in utah to the d c circuit ruling that they were part of a nationwide rule making and and i think that the end of the tweet to go actually to a seventeen room making we nation wide scope or effect and one fact we might look at is whether the e p a said it was night nation national rulemaking and in this case it didn't but you're on the e p a it does say in the federal register notice for the san antonio designation this completes the hometown so there's a policy argument for not having two circuits ruling on the same rule making for the same state but to go back to if i could just it's better to have different to reduce pollution levels so that cleveland ohio could have better air so we think the congress made a deliberate choice to structure the statute in such a way that for nearby areas you have a lower threshold and if you actually kind of turn the session on its head and said well we're going to have a lower threshold for significant contribution to doubt for to far down wind the st same area we're going to have a we're not going to apply the same test as i understand it he uses a factor t think that really it's not any particular fact we have a problem with it's how we think that the balancing was done incorrectly e p a is undisputed facts show that there are significant emissions from these these three counties that are challenging  fact that prevailing winds might necessarily might generally not be from guadalupe is not in our view a rational basis for discounting modeling that shows in fact one percent was reaching it anyway  and it certainly shows bare counting dominating but  certainly not you know orders and orders of magnitude difference that was the final point i wanted to just oh i see what to expect  texas itself points out e p a makes a decision as to what's necessary it has broad discretion to do that as the as the governor stated in his submissions to e p a in particular because the statute is word th confusing that bear county does not meet that statute they changed the wording of the statute to their county will not meet and you can't change the clear unambiguous wording of the statute as judge duncan to come into attainment within three years as a marginal non ataman area isn't possible for e p a to come in and declare that area entertainment when the statute itself defines it as  can't fit the definition any closer they say it's going to come within a team in three years it's already been defined by congress as non attachment just understand your argument are you that even if we assumed it necessary really  of the statute that marginal not attainment definition that congress put in there and again going back to the original provision the statute is worded as to whether they are intended today when the measurement comes in when the designation has to be made and let's take a step back this is about protecting public health it's been determined in a separate rule making that the seventy parts per one billion is what's necessary to protect public health you can't comply with that by saying we of the factors so yes they do if congress had written the statute differently to say but put in a bug but if you think you're going to come in to attain within three years maybe will back off now there are provisions in the implementation stage which is the stage three where the states really have control e p a has to approve their procedures so long as they comply with the statute and that's in the it's in the rule making e p a explain that we can address some of these things as to what's actually required within the state to meet those standards that's where you deal with the what is called the ozone trends and they say it's trending down and by the way it's not trending down because when texas emitted his last set of data  not being subjected to find day or a day what happens is they're subjected to a whole series of requirements about putting in different technologies and things like that we're again under step three states get to make the choice for instance do we put in a better program to tailpipe emissions do we build new roads do we restrict factories from coming in they make those determinations if they don't need the standards after the three years they get kicked up to the next level so i you know as is also you can take away the highway funds if there's noncompliance and those types of things but you to get kicked into higher levels which cope what comes with that is greater requirements and greater steps that need to be taken on the measurements at the monitors as as into the dictionary act which was brought up that that is that argument is weight i mean the president is clear it supreme court present a strong president from from this if you don't raise an argument and in particular a legal let's say ok ok then there's no application of the dictionary and in th is case it depends on whether it's unless the context indicates otherwise the dictionary act is applied and here the context is quite clear that it's written in present tense there is no ambiguity about there it does not say it says that a non taman areas any area that does not meet the next it doesn't say a not a team an area is any area that will not mix or might not mix it's quite clear and in those cases you do not go to the dictionary at the logical extension of that is that if there's a statute that says that banks need to be capitalisation levels or they drug manufacturers need to meet certain test requirements to put a drug in under texas argument the the banks could say well we don't comply now but don't worry we'll compline a few years the drug source get retired not i don't know or i don't know the only thing i know from the records is that missions have gone up at the two monitors going you know  information in their comments but i'm not sure whether that is in the in the record either finally on the on the dictionary act if you read the actual wording of the well as the present will that would set a whole new requirement in showing compliance you would have to show compliance in the present as the statute is expressed in written and also in the future not either or it doesn't give you a pass on the present it says as well it is and that's how the dictionary would be part of it just seems like the whole structure  as far as county itself there was nothing in the modeling that could change the fact that the monitors show a violation  tense you were precluded from referring to the modeling data in the federal register the federal reserve so you did not consider it you were precluded from it because you initially determined that we were going to be present look to the modeling for those circumstances and it will pull out some of the data based on the exceptional circumstances based on the modeling and maybe find that not withstanding the monitoring there are there is no violation but for the most one there's already built baked in the cake that this type of deference yes let me get to the environmental challenge in this case and has been upheld by the numerous courts as a proper basis for making that determination so the question e p a bases is is there sufficient is there a sufficient enough contribution to take counties that are not themselves by leaning the standard and subject them to all these different requirements these technology requirements and the requirements is there sufficient evidence to subject that she that based on the contribution to the weight of the evidence testify part weight of the evidence test which has been upheld time after time beginners in their in their briefs emphasize the one percent test there is no one percent test cases have said there is no fourteen of their reply brief when we pointed out that the in the original numbers they pointed out from the record were incorrect because it was based on emissions and it was based on an artificially limited to the eight county area what the same studies that they cite and on page fourteen they concede this that the full contribution of the three counties at issue is two six percent the ozone and bear county that's less than their own one percent standard dollars that one percent standard is just used as a de minimus level if you don't get to the one percent they don't they know you don't go to the nd step and then look at all these other factors if you take the three counties and five factors and they went through and they looked at for instance the population and traffic the three counties sent between two five percent and eight percent of the population of bear county  that's these missions remember we're talking about ultimately what the ozone levels are at the monitors but you also look on these models at the emissions and then what happens to them and where it goes so you look at the prevailing winds the prevailing winds for instance as sierra club admitted are generally from the south and southeast and two or three counties are to the north and east out of the prevailing winds the rd county has probably get this pronounced region pronunciation room to county is to the south but the but then one major sub source is fifty miles away and directly north of that that fifty miles is the not viol what the record shows is bear county contributes eighty four percent of the ozone to this eight county region so it's bear county who's the exporter of the emissions not these other three counties and then as the petitioners pointed out themselves in their comments most of the emissions that caused the problem bear county come from the counties beyond the county area and certainly being on the three county area is from these oil and gas much to add to what mr rosen said the one percent threshold from the good neighbor provision just doesn't apply here because the text of that provision is different includes words like amounts and emissions that would have to be taken into account here we're talking about a five factor analysis emissions is only one piece of that puzzle and as for the data itself i think e p a points to the right spot on pages ninety dollars to ninety one it please the court peters out on behalf of respondent interveners environmental defense fund and sierra club e p a says ignition of their county is a non it's not a team an area is unambiguously correct and i'd just like to add a couple of points to the points that counsel for the p a made the st is that the text of the statute here is clear meet is written in the present tense and the context is overwhelming that to generalize from where congress indicated that an action should happen could happen in the present or the future it said so expressly uses the phrase within a certain period of time numerous times and that provision if you look at section one of the seven see it says within ninety days if you look at section one of seven d three d it says within one hundred and eighty days so where congress meant for the present to include the future it said it and it didn't do so here and  overwhelming context that indicates that the dictionary act approach should apply and there are others as well we pointed to the re doesn't nation provision in one of seventy four dollars that allows an area like their county if they come into attainment more quickly than the thing that we think is important context about that provision is it says the area must have attained the standards of dictionary act or not it is clear that teacher modeling can't be used to predict attainment when there is a read as a nation that occurs to me at all concerned though that we're supposed to consider there's the a p a response to consider cost and there's the cost relative to the fact that it's already going to be on its own so you know i'd like to address a also a few of the factual issues and costs was one of them as counsel for e p a said the acts here congress has already made the judgment that when there's unhealthy levels of air quality areas have to take actions to clean up that that on a healthy level of air quality and there are certainly some costs associated with it with respect to these cars in particular though i know that these are the costs that you know one comments or has raised as part of the comment period and the history of the clean air act is one where these cost projections are  often wrong and the other thing that i'd say about this is texas is in power at this state has wide latitude to choose among the options that it sees as best suited to restoring a healthier quality and bear county so it can choose those options that are most cost effective and consistent with the state's plan for restoring the healthier so that so the the figure that they've cited is is by no means a foregone conclusion i would also i see necessary means here in the final action they just thirty five thousand one hundred and thirty eight well in your view what does what should it mean we're running an opinion that said well necessary here is a particular connotation what is it it means needed to bring something in line with the statute to make sure that congress's intent is being fulfilled and that is my understanding of what u p a said necessary means in this context and the question just then boils down to does the dictionary act apply here not and applying the dictionary doesn't change the language of a statute it just informs that language and the argument that as well as in the tense provision means you have to show compliance both now and later just doesn't make sense on several levels of meat you don't have to show that something is both singular and plural and it's also contrary to then judge y being held in trust and so it's marginal information in the statute well right every dictionary act analysis comes down to the statutory context and the only point i'm making there is that it is a general principle as well as doesn't mean what he is saying here and that's consistent with with what e p a said in the excel energy litigation relying on catskill development before this action came up and so it's just an the there are certainly measures that kick in one something is designated not attainment and that's what why would they even have that if it was considered to taint meant when you're at that level because we wouldn't and i think this is an unusual case in that we have modeling showing that a state is going to get there on its own without the need for these federal regulations on the state that the at the lower end of the estimates would cost the region over a one billion dollars and so it's very important for the state to get this right and based on that modeling and the statute statute as informed by the dictionary act texas designated as a attainment area now if were if were wrong on this then the natural result should be e p a should never get to look at modeling either and an environmental group or another commenter should never be able to come in and say oh look at our modeling so that's another important implication of the court's decision in this case i believe those are the points i intended to cover unless the court has a did not address that at all and e p a talked about on page fourteen of your reply brief i think i got that right but a concession on some minimal amount of contribution  tank support document these percentages in terms of the percentage of the centanni zero area emissions so be something like eight percent of centanni ovations come from and then they said well it's actually only one percent of the total say we're looking at the total ozone as a baseline it's still over one percent so in any came suggested that somehow that we haven't the data doesn't bear out higher than one percent contribution and that's just not correct the table that texas has in its modeling does show as i mentioned more than one percent more than one part one billion coming from well ok which you don't have to be a genius in math to know that