morning your honor may have scored paul court for petitioners petitioners here represent residents of some of the most polluted locations in the country who continue to fight for e p a to apply the strict requirements of the clean air act to finally address the problem of fine particle pollution or pm two point five which is one of the deadliest forms of pollution covered by the act my plan this morning is to first review why e p a had no authority to two thousand and six and at least let's just let's focus on them in order ok with ninety seven we have three potential jurisdictions that are in issue as i understand it right to two of them libby and is it south because i think they have data determinations are about sort of libby has had a final clean data determination ok southcoast had one proposed last year foresman action going on again in the northern district california saying south coast and san joaquin have for the ninety seven standards did not meet the moderate area  deadline and so need to be reclassified to serious with new planning requirements e p a s response for south coast has been to propose well they're clean now so you don't need to reclassify them but they've only proposed that a new air quality data as i said is calling that into question and so that is far from a set up issue around south of ok to just let's let's focus on libya and then we can just talk for a second about where the south coast meeting with the right but with respect you think in other words suppose that there is no nothing that can be done with respect to those three jurisdictions the three that are found one found to be not a team of these every ninety seven ok suppose we take in syria and we conclude that there is no effectual relief that could be granted with respect to any of them because they might be different reasons well let's just say let's just suppose that's true well then i would if that's true than i did then i don't think you would dispute that we would be like interesting no i said i think i still would dispute it would because again it doesn't make a distinction ninety seven in two thousand and six right if we go through each one of those jurisdictions ok and the second in syria and we find that with respect to each one no factual these can be granted it's moot or it's right or it's not right or what if we take off every again theoretically possible that should that area fall out of attainment they have not been read as it needed we will be back in this question of when various things were due and this classification hall has implications for figuring out that tim the question is is it likely enough that the proposed rule that gives them a clean data determination will be finalized right if it is finalized then they're in the same boat as libby but you have the point that you have is that we don't  that right and i would say there you know maybe the government can speak to this but my understanding is there is air quality data that shows they are not in fact attaining and so that is calling everything into question there's no clean data determination in fact we're in a different boat altogether because they saw voluntary reclassification to serious right remember rights regularly so and then and then they saw an extension yes now in connection with the extension request as i understand it correctly this is wrong as i understand it there's a submission of a plan in connection with the extension requests right so we're in a situation now where a plan has already been submit yes so what's the effect if you were to prevail what would be the forward looking in fact views of the san joaquin valley if they've already submitted a plan right well this plan is not proveable i mean and we explained of all our not approval e p a and we explained that plan was prepared before this ninth circuit decision came down that called into question this particular strategy that they use so that the client then let's let's assume that it's denied ok ok so then what happens then because as i understand it this may be wrong as i understand it if it's the nih and then what happens is that they they only have twelve months to submit a more serious more serious  plan because they will have been found to they will have been denied and whereas what we're talking about is that that seems like it puts you in a better situation no i want because i don't think it's as clear is that i think so and this is fairly clear example of how all this reclassification will continue to have legal consequences because in that reclassification request sam were keen asked for a voluntary reclassification and they're only allowed to ask for a voluntary reclassification within eighteen months of the moderate area plan deadline right and he said we can give you that voluntary reclassification because we've reset that that deadline  with a voluntary classification they now have four years to submit that plan whereas under the statute there's no way they would be entitled to that much time with but the the alternative universe would be that they would get something less than four years which i think  eighteen months because they would be because what would happen is that your best solution is if he is required as of the date of your decision to well i guess they automatically get reclassified no no it's a finding it's because the best case scenario is eighteen months when does that denial have to happen i mean the e p a is saying you know there's no obligation for them to have a serious area plan submitted and approved until twenty nineteen they can sit on it for years and there's no you know it with nothing that necessarily i mean there are various lawsuits that we can bring if you sit on a plan for too long but there's no guarantee that we will get a plan any sooner by their voluntary actions and again there's case law that says sort of voluntary actions are not sufficient to move to litigation like this the point is there a clear legal consequences and those legal consequences are to the detriment of petitioners who are seeking to have the strict deadlines of the clean air act impose their argument on the move was that these december thirty first two thousand fourteen deadlines have passed and so there are no continuing legal consequences but we've identified that there are specific legal consequences that are tied to that due date and i think i think i'm with you on that be right it seems to me the main potential legal consequences the difference between eighteen months and four years right for the deadline to submit a plan right and then the question would be is that difference the delta between eighteen months and four years in fact an issue because even in the best case scenario for you you still have eighteen months that it's right i mean yes that's as much as i mean we'd love to see move faster they can move faster you know if they're so inclined to move fast here then they can move fast hundred eighteen month clock as well but as long as that four year deadline is in place there are a number of ways that e p a can sort of play the game and stretch out this planning process and that is the legal consequence that we're trying to you know another four years and so you can you know draw this out and and so again even paul i don't want a thread of this sub par for statute and the whole thing begins to unravel and the basic point that you know i know we didn't start with is that e p a has no authority to rewrite these requirements of subpar for well before we get to that then let's let's and with we will give you an opportunity to add to that can we talk about two thousand six absolutely so this is another voluntary reclassification of the south coast now under the two thousand and six standard and again e p a is invoking this voluntary classification giving the area for years though for some reason they picked two thousand and eighteen out of the air but but more time then would be allowed under the statute at this stage and under the best case scenario for you would be again we're talking about that's right so what would happen is if you were to win all across the board you when we went under statutory interpretation argument and then you get a favorable ruling and then the remedy would be that if you then at that point is required to trigger the reclassification to serious that's right in which event because it wasn't a voluntary reclassification but it was involuntary they would have eighteen months within which to submit a serious plan as opposed to four years correct correct and they missed and the best case for you on that one is southcoast because a voluntary reclassification is pending and they're rather repercussions from that but the other the other benefit that we give we get of course in getting the statute put back in place is it for all of those areas that have theoretically submitted to modern every planet now sort of caught up those plants and not been approved and so again there's this possibility in the end and you know we can speculate on all of these things but if those are  withdrawn or if they're not approved or if they're you know sat on for a long time there are ways again for e p a to delay the process beyond what would be allowed if the statute had applied if the sanction applied e p a would be making findings that these various areas had failed to submit and that would start various clocks now those clocks commute pushed off they can make those findings in the future and and again  you just start to pull on one piece of this and the whole thing begins to unravel and back to your point about this distinction between two thousand and six and ninety seven i just i don't think it matters if there's one two thousand six hundred ninety seven area it shows that they are continuing legal consequences from this rule making and therefore the challenge the rule making is not move there's not you wouldn't sell her and say the a think very important so the deadline's the liability the do the flows from the statute it is not triggered by some future agency action it doesn't depend on e p a adopting any rule that duty is already there the findings of failure to submit the e p a you know will need to make if this classification rule is vacated do not create new duties they are a determination that those preexisting duties have been breached and then in making that finding the rule sets out an eighteen is an attempt to retroactively absolve the states from the fact that they missed all of these deadlines and i mean i that's that's that's a helpful characterization for your purposes but what happened in the world is that everybody was operating on the assumption that it was some part of one and then it was our decision that triggered the need to take a look at that point and say wait a minute we've all been operating on the assumption that some part of one governs now it turns out some part for governors there's a bunch of deadlines that nobody was aware of and we got to figure out some way to deal with that in the aftermath of the d c circuit decision in an r t c right well the one good one i would pick there is that that decision was not now part four applies that decision was a decision the sub par for sure is always supply sure i know i take that point about the way course these national interpretation but right i'm just saying that the real world universe was that people were operating on the assumption that s one had always been the operative rule and it turns out support for had always been the operative rule that's right nobody knew that until the time of the r t c decision that is freddo and it just so happens that a lot of the time frames by that point had already lapsed yet but so the clean air taking place on a schedule will not take place on that schedule but on a sharply compressed schedule this is a fair characterization no it's not and i think this is an important point to under the statute for example areas were given eighteen months to prepare their moderate area plans upon a finding the failure to meet that modern attainment deadline they're given eighteen months to prepare their plans what needs to happen now when e p a makes these various findings of failure to submit those states will get eighteen months to prepare their plans eighteen months is plenty of time of one point there is that the statute didn't just give jurisdiction eighteen months because if they asked for and asked for and get voluntary classification they get four years exactly but i don't know what you're looking at it that it's no longer available never have that opportunity exactly the scheme that congress wanted to put in place an integral part of that steve was the jurisdictions because we care about proactive action would have had for years if they asked for voluntary reclassification and they get it we would have been in congress wanted to encourage that they've provided for that possibility but then the regime that you are suggesting be implemented would eliminate that opportunity it's true that opportunities eliminated but there are two sides to what congress and vision here ok and overarching beyond all these planning deadlines was this goal of cleaning up the air within ten years and so we're now at that tape coming up on that ten year mark for the ninety seven standards adopted nearly twenty years ago and so to elevate this goal of giving states options for four years to adopt plans to elevate that over the congress is clear and frankly over writing goal of cleaning up the air is not a sensible balance sheet congress spoke to what happens when deadlines are missed the deadlines are in the statute e p a can't reset those deadlines that's that's the law all right th t part for has always applied there is no authority to reset them congress has decided eighteen months is a fair amount of time to provide the states that have missed the deadline and struck that balance of pushing those states along and making sure the area is listening i think you could look at it that way where you could also say that congress struck the balance to give jurisdictions for years if these circumstances present themselves and no there are those dates are built upon a certain set of assumptions and that are in the statute and one of the assumptions that are in the statute that's in the statute is that there could be the possibility of not having eighteen months but four years because we hear about  expectation that there's an early acknowledgement that they have a serious problem and and because when they voluntarily reclassified their voluntarily agreeing to adopt a more aggressive controls and congress said that's a good thing because that will you know clean the air and lead us you know to our overriding goal of cleaning the air that's forty year flexibility does not serve congressional purposes at this point because at this point again petitioners their members have been suffering the unfairness of all this delay and so i don't i don't think there's a reasonable argument frankly and i don't think e p a has made this argument that that congress you know would have intended at this point at this late stage to continue to draw out this schedule when do you for deadlines to apply in congress even though that decision that support for was made after some of those deadlines have already gone and no i'm sorry i think congress and to speed that the deadlines and sub par four would be met if you a can benefit from its illegal action that you can act illegally rules that conflict with the statute and thereby extend things out you know as ever however  and we're leaving out the states who the states who operate him leaving out the breathing public no no i don't mean to leave them out at all you're of course you're right that the ultimate goal of the statute is to benefit the public there's no doubt about that we're now we're we the deadlines that everybody would have assumed that applied had everybody known at the outset that support for so forth a governing framework that's got we can't reconstruct that universe so we're talking about what what do we think is a sensible universe to construct now in light of everything the congress has told us about how to balance these considerations and again i would just reemphasize we're talking about giving states eighteen months to prepare those plans that's the same amount of time that the congress gave areas to adopt moderate every play it's the same amount of time they gave areas to adopt serious area plans following a failure to attain eighteen months is not an unreasonable demand on  states especially in light of how far beyond schedule we are in cleaning up here morning your honor and judge williams my name is brian lane from the department of justice environmental defense section with me a little table as karen go i would like to start in the same manner your instructor petitioner's counsel by assume as i think i understand from their argument today in their briefs that they are not seeking retroactive administrative findings and i can explain more the details about that i do think however they could tour of the who would have a detrimental impact on the thousand and eight implementation rules would still be in place because they were never vacated and so it would actually engender even more confusion at the state level about what deadlines now for further submissions and invite everyone with one other point there is actually a lawsuit pending right right i believe that there is and i and i will i think i can also demonstrate to you that on the other side of this there is not a tangible consequence and turn to clean air in other words thing you're not taking the position i take it that if the rule to be vacated then we're back to the regime where the two thousand and seven and two thousand and eight eight rules exist and then we're stuck with that regime because that that's no good even though it's the everyone is on notice now that would have practical consequences given where we are now sort of an end if we start with let's start with two thousand cities and if we start with two thousand and six there is at least south coast i think that has sought voluntary reclassification and i thought was in the same boat so they both have the possibility of voluntary classification pending is it true then that if that voluntary classification is granted then we're talking about a difference between eighteen months to submit a plan versus four years to submit e p a views is the ability of the timing of when it can reclassify under seventy five thirteen b one and that's were the discretionary requests that occasion proceed you're talking about that allows for well my guess my point was that it is that it technically has the discretion under the statute to act on those as long as it does so prior to the point where it is it has a deadline to determine a forty years to submit a plan whereas in an alternate universe where was more voluntary classification is unavailable which is the universe that wild earth is arguing for there would only be eighteen months that's true but  that's right here now and that's why i think it was moved what is nothing to affect and are the practical matter the status quo with respect to any of those that are wise why wouldn't we look at what the possible and probably likely consequences are i mean you're right then that something else has to happen but we have to look to see whether that something else is going to happen i guess my point is that it's basically still the same forward looking scenario with or without the rule in place for an area submitted a serious area plan and when you ask counsel what possible further issue could there be for us to consider said well what if the plan is an approval well the statute deals with that again and nothing in the rule in the statute first there is if the plan any there were decided that they agree the plan can't be approved and they disapprove it under seventy five zero nine a that will start a two year clock an eighteen month clock on sanctions and into your clock on the problem nation of a federal implementation plan there was one of the questions what it does is it suspends all matter every planning requirements and the way that the policy works has been upheld by the court in the n r d c vs e p a case five seventy one and third at twelve fifty nine to twelve sixty one so i understand counsel may not agree with the holes in this court has already considered his objections to it and is upheld and so can you help me then on so that's ninety seven but on two thousand and six i guess i'm still stuck on not understanding why there is no practical consequence of ease of the jurisdiction that's asking for terry classification because as i understand it and you just tell me where i'm wrong ok as i understand it well yes or voluntary classification if you get it if it's granted you have four years to submit a if not in an alternate universe you only have eighteen months that's a practical difference this is what i think i understand to be the reason petitioners would say release meaningful and where i disagree what they believe if i understand their proof right is that the only reason even they can still have the option to question for classifying area by discretion is because of the fact that it created this december thirty first deadline but that's not true at least not under review if you have the act the act already use the discretion to do it at any point up until its final deadline to determine attainment has run and that i see and so your argument is under the rule detainment deadline never changed exactly so  still in its you have the discretion to look at an area at that point prior to june thirtieth of next year and say ok we don't think this area is going to tame we're going to reclassify it under seventy five thirty one and when they do it i understand a claim that that agrees with  with petitions council would manage my challenge that as unlawful and then a court could decide that at the appropriate time but it's not a question right here and vacating the rule is not going to affect it either way and we say it's not a question right here i take it their argument is the best just wrong buying him understanding correctly that they are not seeking findings because one of the things i wanted to address an earlier in the comments during this argument was the idea that there are things that have happened by operation of law already and i just want to make sure i read to the core of the text and i think the most important provision and this is the classification by operation of law under seventy five thirteen b two it says if the administrator finds that any modern area is not an attainment after the period shall be are classified by operation of law that is necessary and so they're wrong when they say that it's already happened and that therefore it doesn't matter that there was this long period of time when everyone was operating under the assumption that some part one applied and then the court announced differently than the  able to go back and do that if they're not seeking therefore retroactive back to the administrative findings then there's really no difference between just leaving the rule in place for them and thinking that there's no tangible additional benefit well i guess my pilot point there that they can't possibly it doesn't seem from their argument that they're asking that he beat back the findings if they were they would be wrong i believe on the merits under syrup wanted to end this court's recent analysis in treasure states i don't think they're absent of active because well what they're saying is once the decision comes down then you you have to you don't have a choice but to take the action to reclassify a serious interest handle consequences but if they're not asking to back to you then there's no difference between simply the agency doing what it's already making the decisions that are you do now i mean again december thirty first two thousand and fourteen was more than six months ago the six months has run if there's an area that failed isn't that a plan b is due to make a fire a failure thing that makes the discretionary mechanism available the day is the idea that they have eighteen months december thirty first of last year e p a believes it's view as stated to the public even prior to this rule making is that you can use that mechanism at any point prior to the final deadline for determining attainment so if this rule didn't exist if you would still believe that because the some part one attain the date doesn't run until december thirty first and the six and that is that was the position before this rule was issued it's been the position for twenty years and he has and that's many of us practice it has in fact if they're at various points reclassified areas outside of the eighteen month window as long as it did it before the final and that is where there would be a tangible benefit to pursuing the merits of such litigation if you if your i have nothing further i will just include for all the reasons we stated in our briefs an argument we believe the rule should be dismissed for lack of recent south coast proposal and i didn't have a chance to look at the san joaquin proposal either but i don't think either of those proposals predicate that voluntary reclassification on this general authority or this old interpretation they were referring to they predicated on the fact that the modern the classification rule reset the modern era planned deadlines and that this request was within the eighteen months deadline has always been that that interpretation has always been there then there's still this practical difference that should petitioners disagree in the one with the vacant sure they are in the posture of saying the statute says you can make these determinations within eighteen months this is beyond eighteen months what's your legal argument verses with the classification rule they can say it says we can make this determination within eighteen months where within eighteen months one is a fairly straightforward sash tory argument that they are making that they have made in these proposals that the statute says eighteen months from the moderate area plan due date and modern area planned due date has been reset therefore we're within that timeframe we can voluntarily reclassify under this broader claim of authority you know they can't make that straightforward statutory argument they have to say notwithstanding the fact the statute gives us eighteen months to make this reclassification we think we have broader authority to do it for six without that classification rule with the class of the cultural difference that at that point we're not talking about deadlines for submissions and things like that what we're talking about is the nature of the legal arguments that well they become apparent is that we can't get any deadline comply with without litigation so the whole context of this thing is what is that next piece of litigation what is the deadline that we're going to have to try to enforce and so unfortunately i think everything is use wrapped up in the context of you know what is the statutes say what are the statutory arguments what are the deadlines and you know what are the legal positions that petitioners will be forced to take thank you