yes may it please the court robert london representing the united states i'm joined by claude platen who represents the state of new york and will be speaking for the states i'm going to use nine minutes three of which i've used for a bottle of mr plan will use the remaining six  and to obligations that issue here the best available control technology obligation in the permanent position these are not just construction obligations they are both ongoing obligate well here is where is there any text th demonstrates that it is anything other than a construction obligation i think there's three keys here in the into statute itself and then beyond that we have both the federal regulation that's incorporating this in the stabilization plan the plan itself starting with the nothing can be could may be constructed and less so we were starting with that with this this construction language but that's what it is it's the start and that's when the obligations begin they're not obligations that end the construction for that so does the text indicate that well the first place in the case that isn't a four that's where it says the proposed facility this is the back obligation the proposed facility is subject to the best available control technology so it's not an obligation that arises  the subject through it but what is is subject to me it doesn't mean it's a construction obligation only one what it means is it's triggered at construction but to be subject to back it has to go beyond construction because back and this  disputed it's something that controls emissions from the plant on an ongoing operational basis so what happens is you modify your plan that triggers the need to do things at the time of construction but those obligations are not one time construction only all throughout the statute aren't there references to operations i mean a permit is a condition to operations congress knows any line well and we do it we're on the other obligation we're talking about here is the one set forth in  so there's nothing a statute that says those words but what we say is what you're arguing is not right but that's because that's what a one in a for which is underneath this construction requirement what they impose they impose on going pollution control technology and if you look at a four that there were if you look at what back just to find out you go then the definition of back the definition of best available control technology that's in seventy four seventy nine three that's not just a construction obligation that is emission limitation and the mission limitation cannot apply solely at construction it can apply in all of construction because during construction the plants off it's being modified new things are being added the plants not turned on after construction is done after the modification modification is built we then have this ongoing obligation that set forth an eighty four and then defined in seventy four seventy nine three and that's an ongoing emission limitation and so the question the key question here  well nothing happens there this this whole this whole issue comes from the fact that when congress enacted the clean air act they knew there were these old plants out there right ok and the industry said look we're not going to accept these new regulations on these old plants and there was the fight back and forth in the seventy's and there was a decision that congress made to say ok we're going to place to trigger via the trigger that once somebody did something you would make a determination as to whether it was a modification that resulted in back apply while congress decided not to make it and you have to report everything you didn't plan and then e p a must make a decision based on that report of our doing force rather congress said the deal the compromise was when you modify you trigger that but congress didn't say with the a the fact that modification may be a little vague doesn't impact what we have here that's the next phase of this case ok so but we have what we have is a modification that's blood and our argument and we think the statute is completely insincere argument  provided some continuing violations right that they for particularly imposes are ongoing the mission limitation obligation that has to apply for to make any sense beyond the time of construct but if you're wrong if you're wrong on that interpretation the problem comes from the absence of any modification trigger any notification trigger that was put in that was failed to be put in the statute somebody somebody should have been notified well there's no way i think congress act is not a discrete exercise of legislative authority in fact it's something of a patchwork over a period of time isn't it i mean we've seen the development through a sort of evolution in a pm it piecemeal way over a number of decades right congress has had an opportunity in fact more than once to add the kind of language i've suggested that i cannot see in seventy five seventy four seventy one is well correct well where was that said i we said in our brief i don't have the cite here but it's our legislative history it's a joint statement he said i think it was a senate committee report and these are the after the fact reference that that piece of operating permit we have title five claims in here and that's one way to resolve this case is say that title five is the vehicle here for an operating permit beyond the statute let's say we let's say we were not clear on what the statute bears and we  that's not a limited construction era statement that is a broader operational statement the second thing i want to point to is the state specific state is one station plan provisions here and if you look at those and we've set those forms are brief and a lot of detail you  approval permit and you have a operating permit and both of those require compliance with the operational requirements of the best available control technology provision so if you go beyond the statute here we think then things just get  clear that these things are not just at the time of at the time of construction bill i will grant you that i suggesting that things get clearer after the statute that if what you are assuming is that the statute isn't clear on the point that we seem to differ on i i'm i've got to agree with you on that i think given given the clock we should probably move to the other council for your side and you will of course have a rebuttal and and this is an important case and we're willing to go beyond the time allotted thank you mr plat that this is a scheme designed to regulate air pollution to protect the public and to protect the environment and given that that intent to sclera the question is whether there's any barrier to construing session seventy four seventy five in a way that that not under the clean air act your honor but i don't think that that's a problem for us to do to the press and the discords i would i would agree that right now it would seem to be a problem for the other side but it may be a problem to support what the question is simply whether the court in the full breadth of its equity power switch or extremely broad scorched presence made clear that think that the extent of powers particularly pride in situations involving the public interest whether there's any way that the court could could provide a remedy for that violation in the district court sarah was finding on the face of the pleading there's no possible way that any remedy could be crafted that would i merely rate the ongoing harm as that so you think you authority is that congress legislates against a backdrop of existing laws strong common law rules and in this case rules of equity when we're talking about violations so what can a passenger do about future violations well i disagree with that characterization of of the background law your honor the it's clear what the court was talking in those cases about prohibitory injunctions in the bill billion of an inch of her hit the train junction and clearly in that situation you have to show that there's a possibility of future violation or an ongoing harm but there's no question of the court has broad remedial powers to to to remedy the ongoing uncontrolled emissions and former owners could either take steps to install the the scrubbers to pay for them to be installed that's the most direct way clearly the most direct way to the current owners to be in joint and their other end short of that but we're not asking right now yes about the current owners and we all we all know that injunctive relief is extraordinary we know that it is inherently something that is best reposed in a district judge in a trial judge in a chancellor who has all the facts and factors available to him or her and practicality and and of course we were view then on abuse of discretion practicality it actually and we're seeing that injunction is a factor that chancers going to take into account what practicality here what are the obstacles that a district judge sitting as a chancellor in equity is going to face in trying to order former owners to somehow interface with current owners and operators to make this exists or it doesn't is it doesn't exist you don't have the right when the claim exists to dismiss that dismiss it the complaint on the basis of the difficulty of implementing a remedy is an extraordinary thing to do it's clear that the quickest record could do it if any remedy at all would be one point regarding the the obligation of the current owners here it's clear that congress often addresses ongoing harms through the imposition of specific statutory obligations or prohibitions that arise at a particular time  and it that's exactly what we have here and in that situation where congress is intense clear that that the intention is to present prevent an ongoing harm this important a court can construe the obligation as a rising at that time but continuing it's more appropriately posed to mr blunt but if if your only hook here is that pennsylvania is using the hypothetical if the if we concluded that the regulation that exceeded the scope of the statutory authority given to the state in an enforcing clean air act oh yes i believe they could and this it is also an act of pursu to the pennsylvania air pollution control and or stand that but if the air pollution control act then covered in the clean air act didn't cover can a regulation properly be enacted to go beyond the enabling statute unless it's inconsistent with the it may be possible that the e p a or pennsylvania could do it new york new jersey could not this is the only avenue open to us to new york new jersey to enforce our rights under the clean air act so i can't say for certain that there's no possibility but the just raised and something that the government leaves out throughout their argument is the fact that pre construction review was just one of myriad programs on the clean air act to abate pollution and in fact as we cite in footnote seventeen of our brief homer city is installing state of the  controls as we speak when units one into that world use s o two emissions by more than ninety five percent so again this is being done under the clean air act but separate from the program now addressing the couple points that the government just  injunction in any way while mr l what is going to speak to the issue as to what's appropriate injunction to the former owners with respect to the current owners we of course believe that no injunction collide because there's no underlying violation that we can be held responsible for but i think it's best that mr l what address that issue it's more like a hypothetical going to the title five claims if the current owner is actually aware of that there was some floor in the title fight outlook ation they know they were they were told they could see there's a there's a problem with every cause of action against them under title five  such allegations here i'm asking a hypothetical i would say that what happens with the current owners they would then have new obligations under title five to amend their title five permit if in fact new applicable requirements become subject and title five has a long process to go through if in fact new requirements become applicable and you go through an amendment public comment and then ultimately those are incorporated into your title five permit but with respect to whether actions of a prior owner creates liability on a subsequent owner we think not and the reason for that is because section one thirteen b is very clear as to where liability lies it lies against such person that violates the act and here here this title five term that was being reviewed by paid out and he paid for nine years for nine years they reviewed this permit the current owners got it in two thousand and four they operated pursuant to it for seven more years before this action so the government sat on the sands for twenty years now with respect to whether they could have known that an action that happened ten years before they acquired the facility back and two thousand nine hundred ninety one that action might have triggered new source review i think that's what judgment very was getting the you know the dockets are full of these types of cases it's very difficult to conclude whether or not prevention of significant deterioration was triggered hence all the litigation so the point was there was no way a subsequent owner who comes in five years already into a permit review process and ultimately gets a permit issued by the permanent authority could have known that they had an obligation to go back and double check the entry of the application submitted by the prior owner i think this is a red herring your honor because the pennsylvania sit is identical it's an analog to the federal program so one of the pennsylvania sit there operating permit requirements and their construction permit requirements this is not like the tennessee  six circuit found so important and it's holding in tennessee there was a requirement in the tennessee sept that said if you fail to get a construction permit you have an ongoing obligation to go get a construction permit nothing like that nothing that the government can point to in the in the pennsylvania sipp says that it says you have an obligation to get a construction permit before construction and you have to get an operating permit before operating we could not the current owners could not get a construction permit for a project they did not construct and we have been operating pursuant to an operating permit ever since we acquired the facility so we submit that again with all due respect to the government they are throwing spaghetti on the wall hoping something sticks there's nothing under the pen to the pennsylvania sip here but under one twenty seven point two five if there's a person or not cause a permit to operation at all source without an operating permit and we have an operating permit the government does not allege that we we don't have an operating permit we do in the same way we have a title five so going back to the barrier that the that the government speaks of no barrier to their interpretation there is a very it's called the on him because language of the act and the act is very clear that congress knew they did it in section want to levon in section five zero two those provisions talk prohibit operating without a permit that is not what one sixty five says it talks about construction we disagree with their legislative history to the extent the court dives into this you will see that congress debated whether to amend their enforcement authority to allow the enjoining of operation and congress chose not to do that so again i think that we have to view one sixty five against the backdrop that congress knows how to create operating permit programs versus construction permit programs they also point to fifty to twenty one are in the regs number one the regs can't control here we think this is chevron one we think the on the biggest language of the statute controls and even if one looks at fifty to twenty one are cited by mr ludden and all that says you can't operate without a permit well that to me reinforces what one sixty five says you cannot construct without a permit it says nothing about operate and i would ask that on rebuttal you have the government point four five zero four f that creates a permit shield that says no facility that has apartment in this is operating for so it's a permit can be sued for a violation of title five it's called a permit shield the provision is labeled a permit shield gas and pennsylvania electric it sold the plan to the current owners of the lower fourteen years ago to begin with your question judge smith about whether the installation of state of the art scrubbing equipment affects the availability of remedies we believe it does because it directly goes to the necessity of injunctive relief against the former owners we have always taken the position that it was essentially impossible for us to get involved here because it you know you have to build the very large scrubber equipment and you have to handle the interface now we have the scrubber and there are plans and nobody has explained what role the former owners could have in affecting their out of the current owners operation of theirs cover with your plant now because it we didn't hear about discover and tell our side of the case we don't know what the government's going to say but to the extent that the government has any problem with the operation of the scrub or query what role the former owners have to play in sorting that out and injunctive relief i think  unnecessary for the further reason that again there's no question that we haven't had any involvement in the plant ownership of it or operation of it for fourteen years we haven't had any violation for fourteen years there's no question that there isn't any risk future violation so we're guard los i mean the at this record didn't make any finding about whether that is an absolute determinant but it's very hard to say that the utter absence of a risk of future violation has no role to play in the decision whether it's appropriate  and when they haven't made any sort of plausible allegation that we could violate the statute in the future it's very hard to see why there should be a permanent mandatory injunction against the former owners who haven't had a role in the plant for a while in addition to the we haven't heard much about the other provisions of the clean air act but i want to point out the some of the other provisions which account for the current owners installing these scrubbers they were our brief this to the district court that it didn't rely on them but i mean you have the clean air interstate rule which sets a cap on as of two emissions and basically requires plants to earth as a cap and trade system to go under it that was a plan under which the plant has been buying credits for a while in order to comply with its i mean again another overlapping remedy there is the mercury and their toxic standard which goes on line in april two thousand and fifteen which regulates both out mercury you're also cleaning out s o two and that goes on these discovered that is being built now is planned to go online right before the merger in our talk standard goes goes into force in april of two thousand fifteen with this question maybe has not so much legal significance but is a product of my own curiosity remind me if you would please what was the change modification that was made by your clients back the states argue that pendant heaters were changing nine hundred ninety five ninety nine hundred what's occurred to me is i've spent time with this case is that first of all modification seems to be something of a of a squishy term if you will or at least is subject to considerable discretion at the very least and i'm and i'm i understand that very well the enforcement concerns that the  in the states would have with respect to that on the other hand it also seems to me that an owner is running an awful lot of risk by undertaking changes some construction even substantial maintenance with the potential that it might later be considered a modification by the regulatory and am i correct in that i believe that's absolutely correct is that if that's go and see some sort of advisory opinion but it is not required which was there anything like that process oh no i mean i believe that anything was followed in this case but i mean again it is a very subjective process and they position which the government is advocating here in which they this and as many words in the seven in argument is if they're correct if we just wrong about modifications we're on the hook for potentially another century doesn't matter whether it's going on if there is still unabated pollution going on we are potentially on the hook at that point for being held in a court and being responsible for different providing injunctive relief and you know given the kind of open ended liability that there is under this provision it really is disastrous for for plant owners so your position would not that it's it's that important to the issue for us today your position is that i was with what the counsel for the indicated their position was a modification there is no question these are modifications and are ready to proceed under this circumstance well if there was no question there were modifications query why it took them twenty years to you know see to inforce against it but in any event you know their position here is that they have a large modifications and we're stuck with that because of the way it comes to us but we did as a court below recognize it's a very open question whether modifications are not good smith asked about the risk of proceeding forward i will try to get through the court's questions that were lodged earlier starting just with a modification the last issue we're talking about it may be squishy it may be complicated that's the issue we think this case should be about was the plan modified if it was modified we should ultimately prevail if not they'll win but balancing the complaint at the threshold on the motion to dismiss we think that guts this protection of the statute when a plant is modified and then sold then both the current owner and former owner are both off the hook on the district or so you  latches i don't know what the end point would be these are complicated issues they hold the cards flashes typically not because when what we're doing here isn't forcing a public health benefit it's not the department of justice is fault but  fault but the people downwind of the plant are the ones who suffer but lachie is effectively a defense if you if you will the delay here could be a factor could it not in the equation that a district judge uses were determining whether or not injunctive relief sure yes that the jump the standard provides for that sort of consideration the public interest the balance of harms but that's the remedy the terminations we don't we didn't get to the changes the current owners by the plant they get access to all the documents were on the outside looking in they didn't come to us and do what the statute provides for the head up front analysis and determination of is going to be a modification or not that provides for then monitoring to every time i don't want to hear it here again and this may get another problem and there's just plain to self might be a bad example of that because it is visible but it's hard for me to believe that there was not a federal regulator or a state regulator on the site at that plant that would have asked the question some time either at the time pre construction post construction or right in the middle of construction do you guys have your permits to use com to get the permits to make what we think appears to be a modification it's hard for me to believe that it took twenty years to get to that question well it is twenty years now the question came up earlier i did want to touch quickly on their mention of they're putting on new scrubbers it's not the first time we've been down the road of we're putting on use robbers or it's all ok you know the the record  incomplete on both the new scrubbers what happened in the interim period of time past we looked at it we brought suit the pollution from the plant is ongoing and uncontrolled and that's why we're looking for an injunction to control that pollution so it's not a voluntary act the citizens against routing the environment case from the seventh circuit i think looks at this very clearly and explains it very well that permit issuance we the the court explains issuing that permit should be held up on the by enforcement case i asked mr blanton and  indicated i would ask you are you arguing that if we affirm the district court here that e p a in the states have available to them no statutory regulatory authority to control emissions  that would have impacted or reduce the amount of pollution from this plant impacting downwind point downwind states we think that's a good rule the d c circuit vacated it we're back to the drawing board civil and or criminal remed option that they suggest in their briefing and they mention their all these options is is amending the entire state implementation plan we don't think it makes sense to amend up plan to focus on pollution coming from a single plant the plant should stand by itself and then when a plant violates the plan we enforce against it but none of these other potential solutions get us to the emission limitation specified by the best available control technology and that is what we want for sulfur dioxide from this plant if that is what has the public health impacts from it them i think so and i think we have a cause of action short of proving knowledge and this is the cause of action we've alleged i think mr thompson was too dismissive of what we've coined we claim that they have an inadequate permit for the plant under title five and that's our claim against the didn't plead it it's it's you know they put on proof showing that they didn't know we could rebut it and we'd be off and running in their summary judgment or trial what they would notice that there is a facially valid title five from right well they have a title five permit yet we don't think it's facially valid because it doesn't include the limitations triggered by the modifications so it's inadequate and i think that is a perfect title five claim that the permit itself does not cover the plane as it exists it covers the pre modification plant rather because of the transfer of ownership it says you can't get against the current ones or the former ones for an injunction not because of time passage but because a plant was sold these plants are sold frequently we think that is a really damaging ruling for it is in force in efforts and that when a plan sold then both parties are off the hook and that's one of the primary reasons why we're seeking reversal here thank you mr one and thank you to all of counsel this is a complex case difficult case very