understanding that basically what you have is the wall affidavit period and that's just not not at the table ok it's one thing ups it's distracting i'm sorry is that true is it just the wall affidavit that but he he works for the organization then he also discusses the membership including providing the number i'm a member hers i get in each ok i just want to be candid with you i mean i'm i'm having a hard time seeing how the wall affidavit which seems to be the more germane one here meets the test that the supreme court laid out in some ways i mean the court and summers i mean so you're talking about regulation of a third party not a regulation of your clients and some others would seem to say that you have to show that there is going to be specific but something more like one of the cola factories in this area has bought a bunch of credits that they're now going to use because of the the absence of the regulation you say is required here and that that is going to make the air worse isn't isn't that isn't that sort of more specific allegation what summers requires and what we don't have here that said there are three  again i think that this standard is likely that you're likely to be harmed and then they don't have to clap or speaks to the standard i mean that the level of certainty summers in a third party regulation case seems to those sources are a many thing currently and that's not disputed and they will be subject to a more stringent a mission limitation and so that's very specific that doesn't have anything to do with cap and trade and you're saying that the status quo will be unlike summers where they're saying you have to allege status quo is going to get worse you're saying actually the status quo will get better if these other measures are e reducing the uncertainty of being exposed to pollution is also a basis for standing so on that cap and trade program to the fact that miss wong will be the other components of standing which you mentioned which is the level of certainty i mean let's say you're ok on specificity because you've shown that by operational wall really if if ract and the other thing them whatever is required you know that's going to start those measures are going to be put in place but can you really meet the sort of certainty that high level of certainty that clap requires i e can you really show i guess that the error is going to be that much better you know almost certainly as a result of those do we have that in this record no and i don't think  and that's never been the standard we don't have to show that you know that pollution will be reduced by x level and it's acquitting t p a and on the science that last pm two point five is means less people get sick and less people die more pm two point five means more people get sick and more people die it's there's not like a safe threshold certain is it that the measures that you say should be part of a political plan are going to reduce pm two point five read and then you know result of a notice and comment rule making process for the other to print ninety minute new source review again even a high oh utility group they say that it's likely and i believe that sufficient in this same with the cap and trade program if if source is her subject to source specific commission limits recommend being able to participate in reductions that are not permanent are not permanent and that the statute requires that it's obviously a very straightforward strip road requirement interpretation of the meaning of permanent forcible correct correct so what's the logic for saying no deference applies no i'm sorry i mean i'm saying well let me i misunderstood what you think i'm saying no level of deference you could have the highest standard of deference in the world and still something that's not permanent cannot meet the definition of permanent and in this case there should be other there is there should be no dispute then emission levels then are legally allowed to increase because that's the very nature cap and trade program are not permanent well say that the permanent enforceable reductions that we're looking at here were the reference to permanent and forcible reductions doesn't refer only to reduction in this area in the cincinnati area instead it refers to any reductions that that cause the improvement here and in their view that encompasses a much broader area and that area is one where  will at least in part that's all they can say in part be offset by reductions from place of their places but that that's not what this statute says because then the decrease in the other area will have been impact on cincinnati and as a matter of logic and also as a matter of their parents to now says it won't so there are some in other words there are some states in care where  there please the court with me a council table is k treating of the e p a office of general counsel and aaron farmer of the state of ohio will be splitting our time i'll speak for twelve minutes and in final speak for three minutes fine particulate matter standard and that's very important here we're not talking about the two thousand and twelve standard we're not talking about additional benefits that improved the air more than what the standard as i'll say here again the sierra club has not demonstrated an injury that's sufficient for standing isn't it i mean it would seem like a sufficient injury is i am in fact breathing dirtier air than otherwise would be well the key here in this case is the injury has to be tied to a specific legal interest that are that's that's where i fall off the wagon and right or thought you might be going there  you know i'm not aware that they need a statute that says you have a legal interest in breathing air at the two thousand and twelve regulation level than the ninety seven i mean isn't it just enough for three zero seven to be able to challenge e p a s decisions as set forth by congress the clean air act creates a legal structure to protect clean air but it doesn't say there is mean there article three cases are all day long aren't there where the injury isn't one that's expressly recognized in a statute i mean if there were i don't know i mean you know  in hon i mean going to view the animals and the animals won't be there anymore if whatever it was continues you don't need a statute that says you have to recognize interest in viewing animals protect protect particular animals now you couldn't say well i want to go to a particular country and see this animal of animals not protected by that statue but that just because the statute protects other animals it  and i think i may just have to reduce what i understand the sierra club to be so wound doesn't it establish standing to say our members are worse off in terms of the air they are breathing then they would be if the e p a did it i think the key here is that they need addressed so here they have pointed to concerns about excessive pollution in general i would say that's not a particular latest injury and concerns about like a generalized increase in fin particulate matter and the key is that the clean air act simply does not provide an infrastructure for not there never been any increase and in air pollutant what the clean air act does is it protects what  we know that goes mold or whether you have to do it there well bear the merits then it goes to whether an injury can arise from your not doing it that the was because they're worse off in terms of the air they're proving well let me make two key final points on the question stand in then i'll turn to merits and if you have further questions you can address those i would point this they were insufficient both because they there was no evidence that was presented to support these assertions of increased exposure or concerns about  their being a being exposed to additional pollutants and in addition that their arguments about the protecting the legal system was simply they were abstract and unkind nice little interests and that's why it here let me step back and make clear that the clean air act continues to protect against increases in pollutants it's simply that the non attainment provisions will no longer apply here there is what's called prevention of significant deterioration program that constrains a lot of stuff there but they think there are some specific things that are being met maybe we should talk  well i think what how do you get around the wall case with regard to iraq right i know it dealt with like an ozone thing but isn't that the operative language in the provision there in the provision here and feel free to remind me of what provision here which one you think is the operative one here with regard to rare but isn't isn't the language the same so we would have to follow the reasoning the wall the language is not the same ok so taking a step back the key for deciding this issue for the court is the interpretation of which we frequently call section one seventy two c one that's title forty two u s c u s code seventy five zero two  that is what sierra club pointed to in its comments that's what the briefing has been on they are not asserting that this is as an area or that the ozone provisions which is in section one hundred two what was addressed in the wall case is well interpreted section that ozone subpart to protections it's very clear in the background section of wall that specifically what they were looking at in the discussion and the case where they were doing their analysis it was specific to that goes sub part two and the key is that there there was a requirement for a submission that's what so if you look at the language and the two different statutory provisions they're very different well let me let me try again in these kinds of cases you know they're they're hard cases you know for people who don't work in this area every day the count i have to not applicable in this context i mean applicability is the key word that is true and the court in order to make that determination needs to look at the specific statutory language which  complicated statute the this is the term or the phrase reasonable available control technology is a term of art it's first set forth in the section one seventy two section a multiple courts have held that that phrase is ambiguous the d c circuit did and the n r d c decision in two thousand and nine they have a very nice explanation about why that portion of the statute ambiguous and why e p a is interpretation of it is reasonable now why it's not applicable here under section one hundred seven which is what we're talking about in the re does of nation is because you have to look at the definition of what what it says in section one seventy two it says epeat these state plans should include measures that will bring the state plans that are submitted to them by the individual states that they should investigate whether those plans include and are doing the analysis the required to do to evaluate whether there should be rules to help bring the three are we are you interpret ing with respect to the to the rock issue so in this context sierra club is pointed to criteria number a where there is ambiguous interpretations first in the term applicable applicable it's ambiguous the court held that and wall in regards to support five and i think that's thing that's in the in applies here and then the term so then you have to say ok well now i need to you can look further into that and you can say well also reasonable available to technologies that term is also ambiguous and e p a is interpretation of that is also entered in title to shop or were deferring in your view to them your interpretation of the applicable as used in the second and fifth requirement that's correct that the term applicable has been used in different ways in different parts of the statute and e p a in that context had a fair reading of what you thought judge goldman talks about that the i c of the mind times out i would like to just make one point in regards to this cap and trade program issue it's a very important to recall and i think judge was thinking about this  that fine particulate matter is a regional pollutant there are eleven up when sources are up when states that are contributing pollutants that affect that at any point in time the area that s part of the cincinnati area and these programs that it's demonstrated in the data that year after year air has been improving in terms of the levels of fine particula matter so the sierra club is making a lot of conjectures about what they hypothetically think could happen in the future the data doesn't support that and furthermore there is a new program that will be going into effect this cross state air pollution rule and it includes additional protective measures that are called assurance provisions and those assurance provisions it's very complicated but effectively what it does is that it further ensures that the the caps that are in place that restrain pollution and other upwind states are not going to be violated so it  this concern that sierra club has about you know banking and trading it's not supported by the data and there are provisions in place that restrain trade in such that there are there won't be those sorts of violations in the future in terms of explaining why e p a idea to did what it did that drop in reno has to do with the think is a misrepresentation of what practice they prefer suggests that it's a simple emissions limit and then everyone has to incorporate and that's not what it is it's simply an analysis about moving forward towards a team and ok so that putting in another why at least the decision to continue with cap and trade at during the relevant tab period was related to the drop in the numbers that is true and there is the drop in the numbers are barely point asking you bet is the drop in the numbers did influence decisions with respect to these matters and the e p a relied on looked specifically at the drop in the numbers looked at the causes looked at numerous factors that affected emission reduction that was really it was reinforced in its view that this multi st occurred appropriately it's nothing it's not a shouldn't be attack on a cap and trade programs in general and sierra club that it's just trying to do and to begin to like to talk about cracked the standard is  but the case law in the d c circuit that dealt with this exact right general rack provision seven five zero two c one says that rap is not necessary unless it hastens achievement of attainment there's the facts support this conclusion in this case modeling was done by ohio and it proved that that it cannot be hastened by rat so the facts i mean i thought your argument was it's an back when the syria was out of attainment yes is a part of an attainment demonstration ohio proved that modeling remodeling that racked would not help ohio chief attainment in the earlier than it was expected to achieve a team which was two thousand and nine in the year two thousand e here it is he says in contrast the apt ability of the wrecked rules to direct two nation requests that he's not talking about this context obviously  i'm not sure if we argued i think that you would be sufficient i'm not sure if we argued in the alternative in our preflight just simply a procedural requirement that the fact approved what the minister thinks is a political play and then we fight about what the plan needs to include under five under