going to focus my argument this morning on two issues the st that a representative public nuisance cause of action brought in the name of the people is not a claim as within the meaning of eleven u s c section one  does conclude that the other causes of accident were clean but your view is that with respect to whether it really is a claim of a legal matter under the bankruptcy act we review that don't know who i'm correct yes your honor and specifically as judge posner on the th circuit determine that that was not a right to payment because the equitable decree is not converted into a dischargeable claim simply by cost to the debtor the nd issue i'd like to focus on this morning is that these actions in total were brought pursuant to my client governmental units police powers and therefore should have been excluded from discharge under the plans plan l beginning with the representative public nuisance claim the st cause of action in each of the complaints at issue is based on one hundred and fifty years statutory authority but you also brought a non representative claim correct the nd cause of action is brought in the name of the governmental units themselves for public use and doesn't that carry the right to recover money the nd cause of action does permit damages so what is your case or something that says we can buy from you yes the tor waco case i believe it's footnote six makes this point exactly which is to say that if facts can give rise to different claims were evaluating the cause of action that's before you independent of any other cause of action itself isn't there another case that goes the other way you know i'm not aware of another case i know that there was in the respondents brief there was a argument as to how the action provides for an equitable decree where there is no alternative right to payment simply because you could give rudd could bring another cause of action that would that that somehow truncates or trumps that st cause of action this happens frequently the bankruptcy discharge the recovery of response cost that i would agree is a right to payment in dischargeable but a record clean on the other hand would not because there is no statutory right to payment to two things  duty that could give rise to rajamani payment is not right that is the threshold question that the bankruptcy court got wrong what apex oil makes clear is that the right to payment is to the plaintiff not a right not a cost that would otherwise be borne by the debtor sort of the quintessential example is if the debtor is ordered to clean up its mess it will cost that debtor money that you know that it's a fiction that equitable decrees have no cost associated with it and what apex oil makes clear is that it is the right of payment to the plane or does it say that there's a right to payment correct it does not say that but is all of us crowd of sticking point that that are before you this panel and all the papers that all of these cases have been interpreted you are correct does not say right to payment to the plaintiff but what the body of law interpret in that case has held is that is the payment is in fact that it would go to the point i'm certain it is will case yes your honor and here under california law these governmental units one have no ability itself or it could order p t c to pay into an abatement fun that would be absolutely cabined or that abatement and any monies not spent to cover the cost of that money to the people well that would be true in any equitable degree so for example in a record cause of action which is the issue in both apex oil to riko and am international the courts were absolutely clear that an equitable decree requiring a debtor to either stop or prevent the pollution that it allegedly had caused was not a right to payment despite the fact that as a matter of  equitable decree requiring a debtor to do something it does redound to the benefit of the plaintiff but in the cases that i've just identified especially where there is a record cause of action those have been held not to be right to paint and i'm focusing on rick for a for of for a variety of reasons but one is a threshold one which is that the public nuisance cause of action they mean the people that my clients have brought is very similar to a r action in the sense that there is no right to demand a monetary payment on the one hand you cannot recover response costs under this statute you cannot do the work and then  at the time of trial demand payment for the work that you've done to remediate that nuisance you can force in this case p e c to do the work itself what the case is with the cases seem to hold on this particular issue is that there is a variety of factors that have led circuit courts of sitting and evaluating whether or not there is an alternative right to payment as to whether it is a claim or not a claim so is the government entity seeking an order to ameliorate an ongoing hazard if it is that is more likely not a just chargeable claim and here a court could order p e c to contribute to an continuing to haunt the lead paint that was continuing to harm children in that case could be prevented only by removing the hazard so tore wico would say applying those facts just as we've alleged here that would not be a claim because the government entity is seeking in order to ameliorate an ongoing house or nd can the government demand money to be paid to the government unit in lieu of the continued pollution that was the issue in tar wico  oil now like apex oil my client can't my clients cannot do the work and seek reimbursement nor can they recover any costs that they've already spent or will spend in remediating this public abatement only at most the fund would be administered by a rd party and unspent money back to the defendant the expenditure of money to satisfy an equitable decree does not compel p e c to do the work undeniably that would be an equitable claim forcing it to clean up its mess or pay into an abatement fund that would be administered by a rd party now apex oil apex estimated that the cost to it to remediate that particular pollution would have been one hundred and fifty million dollars and judge posner said whether it's a lot or it's a little irrelevant to the interpretation as to whether the right to payment has been satisfied because any cost to prevent pollution in that case rising sea levels and this will have  cost to the debtor but the issue is whether that payment actually reaches in this case the government's treasuries which it cannot turning briefly to police power if i may there are two expulsions tory clauses that are at issue here they've been characterized appropriately the st is the environmental law and the nd as the police are regulatory clear purpose of the causes of action brought by my client to abstain to obtain a picture neary advantage this is both legally and factually incorrect california has long recognized for example that a government may and the exercise of its police power act to proscribe a nuisance that is the sand remote hotel case twenty seven cal forth six hundred and forty three and in fact that's exactly what these governmental entities have done the st cause of action is we just discuss as an equitable claim brought in the name of the people that can be brought by the sovereign and may only recover in equity further even where monetary damages are available and they are stopped by the other causes of action when the protection of the public is at issue which it is here the police power exception fifty and in general what those allegations are are challenges both to the prior and ongoing contributions of p c and the co defendants that would include not just their production but also the ongoing promotion and marketing of their products that they knew certainly prior to the effective date but also post the effective date would cause the very environmental harms that my clients are now suffering and that is the basis of all of the causes of action but as to the st cause of action that is brought in the name of the people and it may only recover in equity as distinct from the other causes of action in the bankruptcy courts say the section the required the p e c have ongoing mining operations the beat the bankruptcy court did look to a jurisdictional allegation wanted to find the parties and truncated its analysis as to what the allegations were to a single paragraph that attached p c s conduct to california which was an issue for personal jurisdiction within the state courts but we perhaps the question  arise out of mining operations yes ok yes i'm just anguishing that from the california part and the and the reason i'm distinguishing it is there were two errors that i think are implicit in that question that the bankruptcy court in the district court made the st is that it can only applies to post reorganization conduct arising out of the mining operations that is incorrect for three reasons the st is it contradicts the actual text of the plan injunction itself in the in the plan itself renders those clauses meaningless so the plan injunction express li bars quote only claims that arose on or before the effect effect of date on or before the effective date and that makes sense because  this circuit court is held in fairfield communities the plan has nothing to do whatsoever with claims arising after the confirmation to hear the carve outs describe exemptions from that very injunction and in relevant part this very exception states that all of the debtors or reorganize debtor's claims defenses or causes of action related there too are likewise preserved focusing on both debtors in reorganize debtor's that is the language of the statute why would this particular clause harvey that is the language of this clause why would this clause include debtor if it were only to relate to post reorganization conduct because the debtor no longer exists after reorganization now the stated argument is that that is simply comfort language intended to provide the parties discomfort now if that is the case ascii on behalf of peabody energy this appeal involves two sets of issues st are the plaintiffs causes of actions claims under the bankruptcy code it's undisputed that seven of the eight are and the representative public nuisance cause of action is to because abatement funding isn't available remedy under california law nd were any of the point of claims excepted from discharge by the settlement provisions in the bankruptcy plan they were not for reasons explained by the bankruptcy court whose interpretation of the plan over which it presided is entitle to deference let me circle back and explain each of these points in more detail st all of the pollens causative actions are claims the plaintiffs failed to participate in peabody's bankruptcy to assert their claims and the claims were therefore discharged when the bankruptcy court confirmed the plan as to the representative public nuisance cause of action it's a claim because abatement funding isn't available remedy and indeed  non representative or should we consider them as one of the nuisance law so i think that there are two different two reasons why the representative public nuisance claims are claims under the bankruptcy court  is the availability of abatement funding the other is the point that your honor suggesting and that the district court concluded which is i just didn't hear you making that argument i was wondering if you were abandoning that no we're not abandoning it were  making both arguments and the argument you're suggesting which i agree with is that under the bankruptcy code definition of a claim one thousand and fifteen the it's a right to an equitable remedy for breach of performance if such breach gives rise to a right to payment and here the breach at issue for both the representative and non representative public nuisance claims is the same breach and under the non representative public nuisance claim have a right to this kind of a remedy inherently turns on state law so it does depend on how california has structured its law if you were to posit a different type of california statute that didn't have the damages remedy available for the non representative claim this particular reason for it not being a claim of being a claim would fall away but then we would still have the argument about the availability of the abatement  there california cases that we cite the con agra case and the county of santa clara case the trial court has the option to either order the defendant to perform the cleanup or to put money into the abatement on this is similar to what the supreme court confronted in the kovacs case where what was it issue was money that had been put into a fund administered by a receiver that didn't make it any less of a claim the fact that the receiver had the funds there as opposed to the state having it directly either way it's a right to payment because the defendant has to pay the money and as the courts questioning was suggesting earlier the money benefits the people whether the people directly hold it or whether it is being held in expended by a receiver to perform the cleanup that is that is allegedly for the benefit of the people could the story request remedy such a way to may be ordered and this is i think in the trial courts discretion either by paying into a fund dedicated to the abatement purpose or by undertaking the abatement themselves by the defendant that's county of santa clara to thirty five dollars p rd twenty one dollars it thirty dollars but in any event in this case they haven't disclaimed an abatement fine of one hundred what exactly what remedy they were seeking so if you look at the if you look at the complaint seeking primarily damages they do seek equitable abatement the one of the principal arguments throughout our this argument in our brief was that the availability of the abatement fund is key to the analysis brief they don't disclaim that they're seeking an abatement fund it would have been any easy enough to do that in this court if that had made a difference but to the contrary they are saying that they are seeking equitable abatement which they acknowledge at page eight of their reply includes an abatement fact and so the availability of that fund makes this a claim under one thousand and fifteen with respect to some of the cases that my colleague was discussing earlier in the shadows a case situation here and nd of all into rico there you had a seepage pit that continued to leak after the bankruptcy that was a claim that ran with the land and that the defendant post bankruptcy still had an obligation to at all with respect to post two thousand and fifteen conduct is a conclusion supported allegation not supported by any facts any factual allegations that peabody continued to export california coal out of california coast bankruptcy in a complaint that is overwhelmingly focused on conduct over the fifty years from one thousand nine hundred and sixty five to two thousand and fifteen with some detail about various defendants all the very little about peabody it is not sufficient to have just the conclusory allegation about months after the confirmation of the plan they brought this complaint within that within that three and a half months that's not one global warming app and the complaint is challenging three pre bankruptcy conduct  damages was not were not a substitute for the injunction where whereas the you can either get an abatement fund or that you whereas here the two are substitutes for one another you can't get both for the same conduct and i think that's the distinction with the dell case with respect to the nd issue in the case whether any exception to discharge applie appellants point to the e p a settlement provisions but neither one of those applies based both on their explicit timing language having to do with post discharge claims as well as their claims specific language the substantive types of claims that at issue these provisions as the bankruptcy court found just ensured that the ongoing entity the reorganized peabody had to comply with environmental laws they're regulated on an ongoing basis and that run with any land that peabody only and so forth first before we even parse the substantive types of claims that are at issue if you look at the point text of the provisions they don't apply to claims that arise like a  before confirmation of the plan the language of those provisions is reproduced on pages forty four dollars to forty five dollars of the read brief section a applies only to claims against the reorganized debtor and to which the reorganize debtor is subject as the owner lessee operator etc i've real property or a mining operation after the effective date of the plant similarly section b only applies to a claim that arises present tense from because the court doesn't discharge post effective date claims anyway but st that is the plain meaning of these provisions and nd the bankruptcy court found as a factual matter and its reading of the plan again is entitle to deferen to ongoing mining operations that the ongoing mining operations if any of the reorganized debtors are not what's at issue in the complaint at appendix forty these provisions are talking about quote and if he's president relationship to the land and that goes on to cite circle cases and further explaining that it's not enough for the allegations merely to relate to coal because the necessary connection to post effective date relationship to land  leading to these settlement agreements the bankruptcy court found was to ensure that the reorganized debtors honored their obligations concerning the land post emergence again that's a quote from forty five dollars and lastly the bankruptcy court which presides over lots of bankruptcy plans like this found that it was quote not uncommon for parties to include comfort language to encourage consensual reorganizations and to avoid disputes concerning the meaning of proposed language  lastly while the court could stop there because these claims don't involve the complaints don't involve post effective date conduct in any event the exceptions don't apply on their own terms the bankruptcy court didn't abuse its discretion in concluding that the claims don't arise under environmental law it looked to the list of federal statutes and determined that california's public nuisance statute which is a not principally focused on environmental harm doesn't fall within them nor did it abuse its discretion under section b and finding that appellant claims are not exercises of the police or regulatory law given the cuny ery purpose of the claims that were brought here and the way in which palin's brought them centrally to cut in line ahead of other creditors thank you i'd like to start with judge arnold's question as to whether california law would permit an injunction as opposed to an abatement fund or something else under the public nuisance in the name of the people it does that is the whole that one of the specifically whether that would in fact nor to the plaintiff in an abatement fun and here to point that my colleague made that i that i take issue with the st is tor wico that it runs with the land that's true but the seepage pitted issue there that occurred prior to the effective date so the conduct that gave rise to the cause of action in that case incepted prior to the effective date and continued past the fact that now jury the public nuisance cause of action in the name of the people would be tried to a judge in equity and the only relief that could be afforded in the case in trial in equity is either injunctive relief ordering c to for example build a sea wall or put money segregated for that abatement so that is it now and the apex oil wrestled same circuit wrestled a little bit with all of these cases in point