have defeat devices which render the mission systems in operable during use and the subject vehicles are not covered by a valid certificate of could for me the clean air act forty two united states code section seventy five twenty two prohibits the importation sale and use of the subject vehicles as demonstrated in the particular portions of the state of the statute quoted in the breeze and under the state implementation plans of virginia and at least sixteen other states which as you know is part of the clean air act it is eliezer to operate vehicles with an operative mission systems as quoted in the briefs it makes no sense for congress to elaborate we require emission what i'm trying to demonstrate is that the the grounds for that the need for intervention if there's not any need for intervention why intervene and the need for intervention is that the united states is not commanding compliance with the clean air act and the statute gives anything the other case has nothing to do with the united states which case we argue well i thought you wanted to argue both of them so i thought i do but they're still not the same case i mean one of them is about whe you don't want to argue the intervention just don't and no i do i do i do you are and perfect absolutely do and the what i'm trying to demonstrate first is the need for intervention that the united states is not commanding compliance and that the statute the united states is not commanding compliance with the clean air act and the statute gives and he says and the right to intervene in this circumstance and in that as we showed in embry's the criteria for intervention is absolute must assert a significantly protect the interest which the clean air act gives and he says and the right to do that that disposition of the action without intervention may as a practical matter impair or impede the equipment case and so i think we meet all those criteria most importantly because the plain language of the clean air act prohibits the importation the sale and the use of a motor vehicle with an inoperative emissions system why is congress going to pass all these laws it is particular and specific as they are for this a court and the plasterin the what we showed was that there and we put in their briefs that they repeatedly had published to the to the to the public in the right on september eighteenth two thousand and fifteen they said it is illegal to sell and to operate these vehicles and that's incorrect statement congress said it's prohibited in something that is prohibited cannot be allowed to be so when you so sticking to just the criteria for congress established the independent foresman authority allowing any person the right to intervene when the e p a just not command compliance with the act the supreme court has recently held the e p a cannot alter the requirements of the clean air act to step to establish with the force of law that otherwise prohibited conduct will not violate the yet that's utility or regulatory group versus e p a case we cited one thirty four supreme court twenty four forty five armor can stay on the road in reality there are still over one hundred twenty five thousand of the vehicles on the road and there's nothing in place to command their removal from use in the removal from the country we have come here to escort to command compliance with the clean air act but allowing mr flesh from his right of intervention to enforce the act when the e p a will not do sent in by reversing the settlement of the class action so there's one hundred twenty five thousand remaining vehicles removed from the road so that their owners can be given notice that they were never given that their vehicles are even legal to sell and a legal to operate and that vehicles must be removed from use and so an appropriate  government sought to enjoin and restrain and get civil penalties for but that is not what the text of the intervention provision speaks to it talks about and it's a specific term it's emission standards or limitation under this chapter and that's actually a defined term in seven to six zero four f and if you look at the various definitions a provision of this approved state implementation plan clearly falls under f  government is in forcing a standard but it is not the same one that he's relying on under f for so under the district courts reasoning in the in the legal interpretation that we've offered in our brief and in order to have an intervention right under the statute which is a very compelling right to for a citizen to be given he has to be essentially displaced of his right to bring a citizen suit by the governments and force you're saying unless you bring that case you could go and bring that case  that's the i mean without speaking of the merits of the case with it well yes that's the idea and it's demonstrated by the facts and the only reason people are supposed to come into this case people would come in enter when otherwise not be  bothers him about it he couldn't remedy on his own for example as an object or either pursuing his objection on an on appeal to the class actions of drives a car or opting out of the class altogether not driving the car various ways he could mitigate what he's claiming as the injury and the case was pretty clear that that type of self inflicted harm is not actionable under article three some fairly traceable to the actions of the united states or the volkswagen defendants for that moderns of his of interest some of the clean air act he would fall within you know if he fell within the citizens who provision and take care of that zone of interest inquiry but i'm not sure that i mean the town of chester case made clear that where the  relate to relief being sought beyond that which the parties were seeking or i mean really you know what he's doing is attempting to bring a across claim against e p a and saying the e p a has a mandatory duty to take certain administrative or  enforcement actions under the statute and that is a whole separate claim against against the united states who has to date been only a plaintiff in the us and so that would have to be supported by article three standing as well just as any the record looking at the record in the context of this case i think this court it's support the facts support a conclusion that his intervention request was untimely and specifically this was a unique case and it was in the act the way it does and that is contrary to his interpretation so he waited a number of months and the case progressed rapidly not because united states necessarily sped along but the district judge know that's something that i haven't looked at carefully but it does trouble me and the best i could say assuming your correct well and i mean it was seven five to t a three b says it is prohibited for any person to manufacture or seller or for to sell any part trust fund that is the proximately two point seven billion dollars fund that the consent decree establishes to mitigate it goes to projects to offset the emissions from the cars the states when they certify acceptance of those funds and about to certify its appendix d three to the consent decree includes and agreement that they will not refuse to license cars or register them in the states based on in the presence of a defeat  so i think that goes to the at least to the operation if not a little more extensive the ownership and the p a certainly is has chosen exercises unfortunate as question here in a way that was most efficient by going after the manufacturers rather than half a million automobile owners but to get just one more point about timeliness i you know there were there are a number of cases where this court has said that even  where the settlement terms have not been publicly filed with the court parties ought to have been on parties i should say ought to have reasonably been beyond notice that ongoing negotiations and the fact of ongoing negotiations in a case could reasonably affect their interests if a settlement reached and that is the circumstance here mr fleishman not only ought to have been aware from he his press release at the outset of the interpretation of the act but also is the case progressed settlement was publicly the fact of a settlement was publicly announced in people of twenty sixteen and then mentioned again and described in general terms by the district successfully sought to keep that separate from the federal multi district proceedings so that is just another piece of demonstrating that he ought to have been aware and he made some strategic litigation calculations and they ought to have consequences here enforcement case but by that time it was too late and on the facts of this case intervention was timely so unless the court has other questions i would to intervene in the government and forstmann action of course also asked this court to reverse approval of the settlement itself and what mr fleishman argues accor is that the district court abused its discretion because it did not require a you seem to think maybe it was illegal i don't think it is illegal i think it is an appropriate exercise of the imports min and that's a different point but that i don't know what they are i don't know what's actually in a settlement but apparently at the time of the original press release statement that we're not going to do anything to each a statement it's legal and it's not true i think what is important your honor and i cannot i cannot answer the question posed but i don't think it is relevant to the question on appeal with respect to the forstmann of the settlement itself or as the approval of the settlement as a settlement have a similar sentence no it does not your honor the art what the settlement the objection to the settlement rests on the  the position that class members should have been informed because those class members were at risk particularly at risk of civil or criminal penalties and i think it's the end and i think it's extremely important to remember that at the time of approval and still today that no court and no other authority had taken that position obviously not the my hands of protection agency as you as you have noted nor the california air resources board nor any of the forty four states that was there claims on behalf of consumers at the same time the settlement was entered into and that included the state of virginia so so what happened so when somebody comes in for their annual smog check in california region and the vehicle doesn't pass because the defeat device is nice so now been disabled or doesn't pass because they say we've got to defeat device and we know what happens if it's turned on so california just as you can drive it anyway that's correct mr toast noted and that's been the position from day one of the states as we have been working through this complex resolution plan that nobody is going to take those hands out of the cars of an innocent consumer and this expressly address that concern raised by mr flashman what you under the settlement either you folks like and takes back your car and pays you or it has to fix your car to a sort of final stand and you know but you don't have to do either that seems to be  percentage miss it needs to pay eighty five million dollars into this mitigation trust and one more than my only point is it appears to me that the fifteen percent of the people say it's so they get to the eighty five percent and there are still fifty percent of people who haven't gotten their car fixed and haven't turned it in that's right there they're not going to have much of an innocent i think any of those people then decide to sell their car i would think they ought to have a problem now whether that has an end to do with the settlement is another question  i do think it's another question your honor but i do think what the settlement provides for is to the extent there is that fifteen percent out there that volkswagen has to ensure that there is enough money in the hands  the appropriate people to mitigate any damage to the environment as a result of those that remaining fifteen percent is rigged jenya let's assume that the target of eighty five percent is met yes but we have fifteen people is there anything in a settlement agreement or anything else to prevent region you from doing that yes your honor there is there's two there are two things at least the first is as mr toad noted and i will repeat that every every one of the states not seek enforcement relief out beyond that which is being sought by the e p a so no state can go out can try now at or two years from now to go and pull those cars off the road which always you knew was a party  to the settlement yes your honor and in fact the the virginia certification is up on the m d a website and it's the form of it is in the record on the program on the excerpt of record before going to government also say that they will go after him but of course that is i think not involve the government so that would not be a position that the government would take as part of the consumer settlement that would be between us and the plaintiffs staring committee and the other i think that is worth pointing out so states involvement is in the federal government so it's a very complex very complex around or there is a settlement there are interrelated settlements the settlement with the department of justice behalf of the e p a is the settlement that sets out the requirements for bringing these cars off the road and paying if we fail to do so there is what we have to pay as set forth in the consumer satam and and that's what we will be arguing about in the next appeal there is also that settlement was endors consumer issues separate and apart but at the same time and there are i believe now one later settlement and a little there remain some litigating but every single state has entered into the sort of occasion as part of the mitigation trust but none of these states ever took a position that they were going to put any class member or consumer at risk in this really is the class number so no class member is facing a risk of having their car this concern and i and just pleasure to finish answering your question in virginia as also previously noted is also has been litigated in the state court in virginia who has found that they are not going that there is no provision by which they show that this is preempted and the state will not pull off that i q thank you  was trying when you see it sometime what everybody's overlooking thought respect is the independent enforcement authority granted by the clean air act to any citizen to enforce the act with their product case and try to do that i'm sorry are you could  provisions be trying for something else then you have to bring your own case well you aren't with all respect i think that if we did that and we certainly can and we certainly will if that's what's required we will do whatever is required but you know the n t l process brought all the cases to  the san francisco just the court and we thought that was the proper place to do it with front of all the parties we can do that and we will if that's what's necessary but the problem is if we did that the class element releases the right of of these hundred twenty five thousand people that still have their vehicles on the road that think that that it's legal to drive and to sell these and you're  is there really any realistic chance that they're there aside from whether they should get in trouble is there any realistic chance given the settlements with the states that have been described why because the independent enforce this act and the problem is with regard to the class action settlement is that the rights of these hundred twenty five thousand people against both swag and has have been released without them knowing that they're subject to an independent enforcement authority enforcement act it you know that the congress for saw exactly what's happened here that that the government will not whether it be the state or the federal government will not  import the vehicle or sell it ok because congress recognize we've got to have an unfortunate of the act before it's ever sold but after it's sold then the state implementation plans have to enforce the act as well and the case law says that original certification does not excuse the obligation to comply with the act all the way through the useful life of the vehicle and even after the useful life of the vehicle so you know name of whatever are we going to have a law that says we got to have all these missions systems to control the missions and then we're going to let courts and party say no you don't have to do that we don't need an emissions system you can leave one hundred twenty five thousand vehicles on the achievable well i don't think it is because because of the money that they offered was good enough it would have already been taken and i don't think it did but in any event that remains to be seen but your hundred twenty five thousand figure is on the assumption that it comes up to only about say right that's where they stood that's where wes with the reality as of november thirtieth according to the report but still they're going to stop you know once they hit the eighty five percent they're still going to leave seventy two thousand on the road that then there's not could be any incentive for them to continue their settlement agreement that says if the eighty five percent goal is achieved they no longer have to comply with the offer that they would be otherwise have they would be making previously i don't think so i don't think there's anything in the summer so that in other words once they had it's any eighty five to the extent that people are still willing to accept the incentives and they'll do it so they may get more than eighty five they could but  know i think there's a time limit on when the people have to to to make the claim and this is i think it's may twenty eight ten but i may be incorrect on that i'd have to look at it to double check i want to look at  measurement the summit was was announced on june twenty eighth twenty sixteenth that they want us to presume that they're not going to enforce the clean air act we had no idea about what they were doing until june twenty eighth and then it was released and then the motion was intervened to intervene was follow on august twenty third which was fifty six days after the proposed partial consent decree was filed and fifty six days before the hearing was scheduled on the matter before the district court  were there their rights against folks wagon have been released and that's not right for them to be exposed to to you know a legal liability when their rights have been released against folks like because it's both wagon that's supposed to pay for this not them the independent force of authority is it is the key to the whole thing the people have the right to enforce this regardless of what the state region or other states regardless of