i think very very quickly why it's unlawful e p a says that one phrase emission standards probably get under this section restricts it from from making these revisions and of course that that interpretation is wrong because emission standards promulgated under this section authority it has in fact several times in the past done just what you're asking just what you're saying it's required to do in this case is that you're already doing it consistently  declined yes to do this this is the st time you know why why have you has nobody simon damus on the petition for rulemaking that i gather has been languishing for a decade on the same issue are the whole package of limits and other requirements that apply to the category e p a can plainly revise these emission standards both by adjusting the individual limits that they already conclude include and also by adding new limits or leaving old ones all of these things are visions to the emissions standards for the source category that have any haps been added to the to the list since the performance of sources and if the sources aren't yet regulating or controlling for i have how does how does that work and where does the substance of the limit come from in the real world where your honor i think what we congress directv to set these floors based on the emission levels of the best sources or you are cheating what it what it was exploiting phillip you know a good way was that within the industry there's a wide range of performance levels some sources are doing more than others and what i wanted was to make all the sources clean up at a minimum to clean up what was already being done because they knew that what already is being done is can be done and so i think it i think it was in this court's holding in the national life case back in two thousand that the court observed it it doesn't matter whether sources are doing you know whether sources have put on controls or whether there are you know reductions are the result of some intentional strategy some sources are doing better and that drives the floors plus the nd tier review whether they can be more ambitious taking cost the right grade and then right the dollars sources and they're all doing exactly the same and then the floor wouldn't have any real bite or would have minimum buy or would have been away but we don't know that and it seems very unlikely and is there no role when you read the the rule they talk about that this is a waning set of facilities and you know the category is getting smaller and it's a lot of money to put into controlling it is there no role for that and under your theory well not on this point your honor no i mean st of it's very possible it would be industries is declining interpretation is that it actually is there they're talking about limits perhaps a mess the only way it would be could possibly work the only way that language emission standards probably get in under this section the only way i could possibly restrict b p a to looking at the limits it  i guess accounts the haps as setting the scope of the source pacific standard so they're only looking at what is it eight or seven more than that would be the only ones they would have for you know and i think they also say the only for technology but i guess the point is if it means categories then their interpretation can't possibly work because if you look at the emissions in its resource categories then they can be revised by adding additional limits the only way they can add additional limits is if the morning they please the court i mean from the department of justice at counsel table with me is scott jordan from the environmental protection agency the statutory provision at issue in this case forty two us c seven thousand four hundred and twelve d six does not require the e p a to develop and probably gate initial new emission standards for the hazardous air pollutants that the original two thousand and one emission standards and left unaddressed e p a s obligation under is near or by its plain turns the six requires the e p a only to review quote emissions standards promulgated close quote under the x have program and then to revise those previously promulgated standards as necessary taking into account specified factors and those factors are developments and practices processes and control technologies here the e p a did everything that the sec's required the agency to do number one the e p a conducted a thorough review of the emission standards for pulp mil sources that have been on the books and never challenged in court since two thousand and one and number two the e p a made revisions to those preexisting standards in light of developments and practices processes and control technologies in addition in this case every action that e p a took pursuant to d c six is uncontested by the petitioners that is the petitioners do not challenge the e p a s findings that certain argument judge pillared you hit the nail on the head that the agency's position on that that they recognize they would have an obligation under the one through three to probably gate emission standards for that newly listed have but they would have discretion as to when to do it i think as a practical matter the agency would address that timing in a final agency action promulgating the addition of that to the list or in the past the agency has as far as i'm aware and correct me if i'm wrong has done that kind of bringing you know new haps into the existing category standards in the do six review and it's your position i take it that it's permissible to do that but not require correct your honor you knew or you referenced this when you were questioning my opposing counsel at the our position on that is that a this case is not about whether e p a has an obligation to set emission standards for each and every happen from a source category it does national lymon two thousand source category where the source category admit it's half that have not been included in the source category standard and declined to address no limits for those haps and it didn't address that in that context i d six review yes i think he's right about that i'm not aware of any other instance where he has declined to do that here it was unique in the sense of this was a court order deadline we had sought the district court to give us more time we got less time to what we wanted we had the data to do the risk analysis and the data on developments but we didn't have the by the two thousand and one emission standards but we didn't have actual emissions data for those unaddressed haps and so that's the different kind of of data i now see that whereas i make a difference it makes a difference because under the risk assessment that is the f two those are projection based generally on in terms of assessing the level of risk and whether that's acceptable public health when you are setting the the max s just going to say the district court though there was a sustained discussion of how much time you pay needed and the time of two years was given and there was no objection from here i think the understanding clear in that case that talking about were the max supportive data and indeed i mean under the statutory scheme with the schedule that congress contemplated it was supposed to do the whole country in two years so far at least a big big chunk of what for the source of so that so i guess i'm i'm wondering even if we were to apply the most differential standard to well or standard why is it not in violation of that  that the only reason we pay gibbs is that we are a time when the time was actually negotiated and and deemed to be ample and and it's been a very long time right well the reasonableness of his decision not to combine these two distinct kinds of room makings is twofold number one st and foremost it the statute in terms of even looking for statutory criteria as to govern in his decision about what to do our position is that it's taken into account all of the statutory relevant factors that is the technological advancements to two thousand and one so your i mean your position does then depend on limiting the d sex analysis to technological advances because taking into account is a very soft way of living that i mean you take into account you know when i when i hire clerks i take an account of g p s it's now limit my analysis and correct that decision about whether to combine these two distinct rule makings relied on more than that but i'm the state farm standard for arbitrary and capricious in the past did this did the agency consider all the relevant factors and of course we believe we did eleven and yes one hundred percent response rate yes astri that wasn't data that you could have used to set match it was not your own or that's my understanding of it but that was data for industry provided emission factors that are then used for the projections that you do in the f analysis but i don't believe that's the data that was required to do the the mac floor analysis because again you're getting you have to get actual emissions i'm getting short on time but have to put quick points one is that e p a s reading of d six is reasonable because it does not it preserves and does not cut off remedies as your honor judge toler noted there is still the remedy of were saying e p a below has advanced its best reading of the act it is brought its experience to bear about how this works and wife is for the structure that you cannot hold under the the problems of chevron is argue are you statute and the regulations as well as our precedence in current standards as source source of governing as opposed to a standard being have specific so why is the plain language of one  two which calls on the agency to review and revise as necessary emission standards those emission standards some limits for previously uncontrolled or unaccounted for how that's not the best reading of the actor on because of the statutory phrase emission standards promulgated under this section promulgated versus revision is a term of art that this court has recognized and surface finishing in other cases including a concurring opinion from judge wald and i would also know that it's reasonable for e p a to construe that phrase together with a technology called development focus and d c as something that is talking about the standards in existence not just remains to be promulgated this is where i think why positions are attributing to you how specific interpretation of standard which i take it you're resisting by because the standard promulgated is the standard governing the emissions of a poem a or components there are and the revision of the standard promulgated this revision of that to include necessary components that it doesn't include so it's not a different standard it's the standard that was promulgated it was just promulgated in an under inclusive form i think is their argument and i'm trying to understand what your counter to that and are counter to that is that the that the to the extent that the original emissions standards are deficient and there's a very good argument if not a clear conclusion that they are that that is what come drest that through the judicial review provision of the that you have the act expressed lee provides a remedy to get an answer to that i will note for the record that we have done the e p a has done act in action in response to that petition not only only only one issue on the mills and that issue is the start of shutdown and malfunction issue that's in their rule making petition we address that below is not under the nd decade and we have taken thirteen we have filled gaps for thirteen sources we have not done so pulp mills but there has been movement on that petition but the point for your author back to back to your art question is that congress designed remedies interpretation preserves those remedies if you missed the boat on challenging the original promulgated scimitar rulemaking petition if you believe e p is taking that and recently too long you you can enforce that three u s district court suit to compel e p a respond the court has no further questions at this time oh i did have one last question which is is it in the record or do you know what are the half how many what are they that are at issue right now that were highlighted mercury dioxin of mercury with the last paragraph there mercury dioxins for that paragraph correct and then it continues on to the next page particularly unchallenged by petitioners that there that there is the risk to public health of the environment is his below the ample margin safety and so that's that leads into that discussion there a took is being challenged in this rule first of all just to make clear i think it already should be but it's critical for industry to have the repose that congress provided in section three of seven limiting petitions a actions to sixty days there is no searching that this that there is some petition for review that's been filed with respect to the original max standards even though dishes don't dispute that they knew about the president that they claim required those standards to be written differently and they knew about were they could have known because it was in the record the print the very same booth that they now say are make the standards unlawful because they were regulated the time so if you interpret one hundred and twenty six despite the absence of any discussion in the legislative history that that's what congress intended to be in that essentially that sixty day reposes from congress provided isn't available history won't know whether it should investor or not invest what the requirements are going to be even though they have been challenged at the time there's been a lot of talk in the in the brief and some today about numeric limits in the existing cinders but also for all the other pollutants that the petitioners have claimed are unlawfully missing so that process took place and  regulated those other pollutants by addressing them by determining that there is no need for additional limitation to protect public health and safety it's this is this question about emission standards for source categories st of that term is used in even by petitioners in their briefs in many different ways and in contradictory ways so you can't just focus on that term as an interpretation as a margin of safety right but i didn't regulate them in the sense of doing any kind of impact analysis and it's your view that that's not an obligation well it's certainly not an obligation additional limitations were necessary for these supposedly unaddressed bulletins that's the statute provides that mechanism it also provides that if there is no unacceptable risk e p a doesn't have to impose limitations and a new happens discovered such a very dangerous and added to the list there's not any non discretionary requirement that e p a address that how how would this just to get its act together and figure out how to how and when and whether to regulate i think i think you're probably accurately characterized it when you were questioning  the fact that there is no specific statutory deadline doesn't mean there is no requirement to regulate that when there are lots of provisions in the clean air act and of course in other statutes require agencies to take action that isn't associated with some numerical there's no dates to certain by which e p a has to take action that certainly doesn't mean there's no regulation there's no requirement for e p a to regulate that knew it was to have it it's if you need to be regulated a has pointed out there is an opportunity to petition for rule making if petitioners believe that some new needs to be regulated particular and that was done in this case a decade ago and that hasn't acted on so i mean this is a statute that congress and acted in revised because you know i mean it's it's just human nature and you know economic priorities that it's not going to happen quickly unless there's some impetus right i mean they had to take over the listing of perhaps because the agency was somewhat overwhelmed and wasn't getting around to it and so that very statute is one that you think congress intended to leave with no temporal triggers from the outside just like e p a is going to figure it out and incorporate limits on those  existing standards without any no gender one hundred and twelve the sex well the st place this is all theoretical at this point because the x been around for almost thirty years and know how has been added so so there hasn't been the catastrophe associated with the supposed gap in regulatory authority so far but you know there are there are there were deadlines for the initial max standards and that didn't keep them from unregulated pocket this different from all the others and as a practical matter that's that's not it hasn't happened in this it's not true but but the real point and important point is congress did provide a deadline for new  categories two years ok that's specifically in the statute it didn't provide that deadline for newly listed boone's ok so according to petitioners there is a deadline but it said two years it's eight years because it is sort of tucked in there under the one called the th review and that means is there's no obvious reason why that eight year deadline is better than a an opportunity to petition for review or petition e p a making whenever the petitioners feel it's appropriate to regulate an additional a new pollutant in the fact the base sat on their rights and didn't take action that's provided under statute to get to act on that rule making petition is you know it shouldn't be that there should be a reason for concluding the congress must have meant to provide some if counsel for the government is correct that they only thought they were coming up with the data to meet the one top f standard than is there any argument on your behalf that they nonetheless d the welder's the wilder standard i think it would be be difficult in fact i find it very interesting both over e p a and counsel for the readers seem to think that this process is a real remedy that would secure relief because away with leaving listed hazards there who is out of regulation and the laws its emission standards are flatly unlawful is a case here too bad because there what they have succeeded in doing is converting what this court has already  has a clear statutory obligation that must be obeyed into a discretionary one to be in a nd we're not prepared to i mean gets away with it makes it sound like they're somehow shirking their steps or do they have a lot of different regulatory projects and they're trying to figure out what they have to prioritize and their knowledge ing that these standards are inadequate and that in fact it's unlawful not to regulate these on addressed haps and they're saying among all the things we have to do this is not something we're doing today right there at the end i would say that's the difference between one reason the lazy would end it on discretionary duty suit and one thing that couldn't be clearer from the act the other point is that council is relying heavily on this word probably gate but it begs the question of probably get what it will really probably getting emission standards then it's no answer at all i mean centers resource categories and is no answer at all because emissions standards resource categories can be revised by adding limits on control pollutants i'd also like to address the records i'm sorry if e p a is argument that it was really the fault of the district court for setting it on reasonable standard the agency didn't have enough data in fact the agency represented in sworn testimony to the district court that it had all the data that it needed now if that wasn't enough data it's hardly district courts fault it was enough data that it's not really a plausible it's not really a plausible excuse not that there is any plausible kids excuse for noncompliance with the law you need to wrap it up thank you two quick points congress did provide repose it provided and it provided that these standards would not change for eight years it didn't provide any further repose than that