air act directs the e p a to result in consistencies in how it's regions implement and enforce the clean air act and its amended regional consistency regulations e p a has abandoned any effort to try to do this with regard to regional and local cases rather in those regulations e t a is embracing inconsistency for the same reasons set forth by this court in national environmental development associations clean air project versus eve p a which because that's a mouthful i will call the need a cap case the amended return to regional consistency rules should be baked hated in one nine hundred seventy seven congress added section three zero one eight two to the clean air act because it was concerned about inconsistency in the regions that prohibition directed e p a to promulgated regulations for the regions to follow in carrying out a delegation of authority from the administrator under the statute those regulations must be designed one to assure fairness and uniformity in the criteria procedures and policies applied by the regions and two it must provide a mechanism for identifying and standardizing in consistencies well there are varying criteria of procedures and policies that happen in the regions council why don't you go right to the problem  acquiescence we are quite familiar with the issue here your honor is that section three a one eighty two precludes e p a from doing that here in print tell us what precisely remedy you insist you do i that would be an extreme situation what we didn't take the position of is that u p a has to establish in its regulations some type of mechanism it's the statute is very clear to identify that that conflicts with the e p a what it can't do is you know is what it's doing here which is allow that inconsistency to remain for all time which was a good well that we keep asking what should they other one says no bubble is not possible there is that certainly it is to this summit takes some of the six circuits is one thing and then following your approach you have to follow where and then the seventh circuit comes up with another one and then  are there can arise a situation where you have one says you know decision from the sixth and say another from the night when they're in conflict right that's what they seem to be trying to take to do here and since you're already acknowledging that it can't they're not limiting it just to that one not be can it if there is an inconsistency can arise that puts the agency in you know between iraq and a hard place the problem is the way that the amended regulations are written it's not limited to the rock and hard place situation you could have a decision like the sixth circuit with the with summit and you can just say that while the summit decision will be different in the six circuit for all time there's no limit on how long or how many different sit surgeons are going national rules correct regional circuits going different ways what is e p a supposed to do hold them on act react well there are other things besides not acquiesce we talked about them they can go to the supreme court and what could i say let it maybe and consistent with their policy it it's not just that your honor it's that and in comments of you to petitioners all asking comment saying look if this really is a problem then put some limits around what you're doing and the agency refused to do that does that mean well for example you could put some kind of time limit how many circuits have to wait and on this you have to do you have to seek search do you have to try to resolve the inconsistency through some type of a room making should the general counsel look at it and in determining whether something can be done to resolve the inconsistency of you know that's none of that is here counsel on an aspect of this whole case venue plus it's not just an venue close it puts a cage d c circuit if there's a national regulation correct but it doesn't limit it to national regulation which frankly i don't agree with as i read the administrators or makes a determination that matters of national scope correct he could be not and that begs the why isn't doesn't that give you all the relief you seek because in the event that these regulations are illegal are in a firm and you have a problem with  six circuit decision because it your clients complain about the inconsistent treatment of different competitors you could at that point she could determination of the e p a administrator and what how much in the statute now what i'm saying is the determination is part of the right making it could be made in a whole making it doesn't have to be made in a rule making it could be made in an interpretive rule you could be made a lot of ways but the circuit court to decide whether matter is national or not and you know i think that's a review of the e p a administrator but the limits that are placed as this court found in need a cap you could say that somehow that to a's were you know that they had had managed to get passed a the statute says you must provide a mechanism for identifying and standardizing inconsistent  way and then that case comes to the d c s are that is indeed it is something that's available and that's what the regulation should say because the regulations have to say because the way they're written right now they don't say that what is why when i don't understand what they y allowing interservice at not acquiescence when that is not what congress wants it what it wants is to have a level playing field under the clean air act and it's very important for me that remedy that you're talking about is a variable then that would be just pass the same question i judge silverman asked in the previous case was this argument that he's raising now mentioned by the other side no it was not the only go back to the were you ations in the circuit or the same across all regions all circles those or anything about regional disparities in the structure clearly allows for regional differences in the scope of the review is different  if and even with respect to mechanisms if the wool coming out of the d c circuit approved by the d c circuit the national rules of x and the regional director covering the first circuit says well you know about what the regulations said the first time which is ensure uniform application of the rules that's different from ensuring that all of the rules or the thing that the rules are the same in every  every page ninety five of the joint appendix house report that what this provision was trying to do was to ensure that the regional offices offices would be in such a quote would be required to identify potential inconsistency  the administrator must provide for their expeditious resolution and for policy standardization that's not that that may be but is that's nothing more than saying look the rule is actually it's not exploits to and so we mean for you to be following the criteria that we've adopted across all circuits it doesn't say anything about what happens in regional to cases which are permissible under the statute and different circuits to different way and that's one of facial violation of the uniformity requirement that simply are circuit going away that it's entitle to go on to the statute and you've got to find a remedy for that right and the remedy that they're trying to seek which is just to identifying and standardizing inconsistent in as you said it's procedure criteria procedures and policies what you're going to end up with want to suggest new was the difference between national and regional and if you look at the statute and look what they're trying to do now they're trying to close a hole the statute already allowed differences and we were not dealing with it carefully in the first case the statute allows differences between the national rules and enforcement actions in the regions and apparently contemplates there will be some differences emanating from different decisions coming from the different regions of regions i don't see anything that would borders the agency i don't know how the agency would do it other than to go to screen court or start a new rule making and that would take a back to the d c circuit so if you have three circuits that go different ways in and force me then the agency whatever require a rule to give the d c circuit that you or jurisdiction it should determine that even if it's our final agency action any final agency action which would include a determination action does not have to be a rule that is of national significance that case comes to the d c circuit isn't that correct yes and what i am suggesting is that to the extent that were a remedy that were not be expected to arrive and therefore not acquiescence regulation is a particularly appropriate it is critical votes of my clients and to the regulated industry that there be a level playing field and that the making dealing with not acquiesced because as judge evers points out and force one case you would not know before it might not know beforehand whether you're going to get an issue of national implications or significance to  talk to me more broadly the e p a goes but so is some case that they have an obligation to move to dismiss on grounds of very you know they had an obligation once that case was decided to try to rectify the let me finish my question that's not the interesting point is some of the interesting quarter somebody is what happens is three more circuits go different ways and i'm trying to understand what is it you think the agency is supposed to do they're all in regional circuits there's been no more projection and you say there's no requirement to move to dismiss on grounds of venue so you're not arguing they're violating the law by doing a failing to dismiss on venue grounds you now have four different decisions what are to putting out some type of guidance to try to rectify all those things with no guidance can't rectify it the decision from the seventh circuit says x through the decision from the eighth circuit says why they can't just adopt the guidance and will become it they need  would be a final agency action and we could you know tell me that you're going to but in the mean time you still have what is a source is different in the sixth circuit than the rest of the country and that's not what congress intended what you're looking at i i'm i'm sorry that i'm not following don't tell me they could initiate rulemaking we've got that what else could they do they can't just issue a guidance well they can say this was an issue of national importance and therefore we reject the sixth circuit although they are effectively rejecting the six circuit does the non acquiescence block they could the general counsel could revisit it they could infer what you know examine whether there was something within the confines of those cases that could be used to try to rectify the no wait this week and say where they could go work in the circus or not i'm really listening carefully you have the decision come down taking the supreme court off the table taking the possibility of rule making off the table they're viable they can more so i can understand what you're saying they can't just say all let's just all meet and worry about this that's not a remedy for you so you still have the six circuit on the books it's it's and they are saying our rule is what it is and we're not changing it if we're not going to rule making and so if the sixth circuit is out there they're out there what else are they supposed to do well one thing that they could do your honor would be to have the general counsel or e p a headquarters and this is not in the rule really make sure that then how that six circuit decision is applied because that spans two different regions e p a region five at least those two have to be consistent that doesn't exist in the regulations right now the so say for example the fourth the region for says we're going to take this definition of major source are only going to help limit it to the title five program but region five says no we're going to limit that to the title five program and the new source review when are they supposed to do that by rule making so say the sixth circuit decision comes down important the region is out of the six circuit you're saying is that  spans two different regions so what are they supposed to do to cause everyone to know under these regulations no no no tell me what you think they should do well at a minimum they should say in the way that we are now going to apply the sixth circuit decision is going to be consistent between region four and region five it doesn't say that was not mean because that's what i was trying to explain there's a possibility that say in region four they say we're going to take this stationary source definition and we're only going to apply it to title five which is what summit was about that region five says no because the definitions the same for the new source review program in the title five we're going to apply it to totally different way to much average and you could protection for all my i could petition for will making but in the meantime i have major foreign legion five inconsistent because they didn't consult with headquarters what do you mean they didn't consult with eight two and i believe that what congress was saying was that it is e p a s obligation to try to the extent it can to resolve any inconsistency i hear you sincerely but honestly the thing i most want to do here today tell me how you do this because it's one thing to say you know we have a lot of tory gold and we're really concerned i hear you but they got they have more to tory concerns to like what are we supposed to i think there are things they can do and i agree with you that there are situations where maybe they can't but they're not even trying to restrict themselves to legal situations where they can't tell they are instead  just saying oh it's a wig sorry tell me your wish list you would if you could write the regs now to add three things that would clear it all up for you and that could handle the situation that they face one of the three things while the first got to put supreme court sir forget petition for rule making one of the other things well the one would be that you know to the extent a circuit decision is applied the same way in region four and region five why would i suppose that there are cross over there's anything in their regulations to suggest that when the sixth circuit issue something that's inconsistent with the national mall why would we supposed from their rigs that are going to allow persons outside of the area of the six circuit there not differently the six circuit spans two regions and so but the way the regulations are written those two regional administrators could could it could interpret the six circuit decision differently that's my point and under these regulations so at a minimum you should say well to the extent you have a circuit and we're going to not acquiesce the regions have to apply that not acquiescence the same not the person who's in the six circuit so that's not what the six circuit rules said it doesn't say because you have regions that overlap if you're in the area of the sixth circuit you're bound by the law in the six hundred right but what it was the example fifth or what what my clients want is to me is to have the rules be the same throughout the country as much as to the extent that they possibly can you going to congress for that because congress allows certain cases to go to the regions so you're going to get some differences that's not it the h r is doing that's congress and that is what congress says in three a seven but oh i'm sorry judge a card that you think the administrator has the power to disobey the six circuits interpretation in the six circuit that's called the doctrine the interest circuit no so i don't care what it's called if you think of the sixth circuit says you must do this that the administrator has the power to not do that in that sort i think that some agencies have interpreted the but the six their way doesn't have that power now which is why i have conceded to an extent the there is sometimes can be an irreconcilable differences let's talk about the statutes always helpful look at the words i'm told seven six zero one says the administrator may delegate to any officer or employee of the e p a such of his powers and duties under this chapter and then in part two it says to follow  carrying out a delegation under paragraph one such regulations shall be designed so all of seven such six zero one is only where the administrator delegates to a regional official his powers write correctly he doesn't have the power that you're talking about he doesn't have the power to do anything other than to have the regional n'est raiders do what is required by the circuit in their area correct correct ok so and that's all he's done here if i look at section fifty six point five b it says however the responsible official in a regional office will not be required to see concurrence for actions that may result in inconsistent application if such inconsistent application is required in order to act in accordance with a federal court decision so i don't understand how this statute frankly has anything to do with regular interest circuit or intrust circuit acquiescence this is about the policies that beat administrator wants to follow across the board but not those policies that he can't follow because of law  but what it says next that the ministry here must do is provide a mechanism for identifying and standardizing inconsistent for varying criteria procedures and policies and that is all part of seventy six zero one two which is what you're supposed to do when you fall you follow a delegation under seventy six zero one a one and a one is only a delegation of powers the e p a administrator and as we've just established minister does not have the power to let the regions act and consistently with a circuit decision in their circuit so i don't see why we should think that seventy six zero one has anything to do with to ninety six right correct can you read that for me what the what the house says there is that this provision which they're talking about three zero one eight to the regional offices would be required to identify potential in consistencies and the administrator must provide for their expeditious resolution and for policy standardize ation correct but that says nothing about decisions driven by legal requires you or me to look at the next representatives bill sixty one sixty one and house some representatives bill sixty one sixty one did have a section with exactly those words that section did not make it into the final act so that part of legislative history is really even to the extent we consider legislative history it's not really relevant thank you might say that congress intentionally decided to eliminate that part the part about requiring looking going to the general  on i'm still stuck this looks like a statute that requires policies of the agency to be consistent but it is not a section of the statute that requires  it's clear that congress really wanted there to be a national policy that's why nationwide rules nationally pickable rules and those of nationwide scope come to this court so that they will be national you know the same throughout the country recognizing though that certain decisions would were best decided by the states where they came from and it goes to the cooperative federalism nature of the clean air act congress did allow the regents to hear certain prescribed cases recognizing that that could then result in inconsistency is why you also have three oh why need to know it now so that only a that has to try to resolve it to the extent possible so that we have a national level playing field we've created by the separate jurisdictional provisions of seventy six zero seven or if they said it's not about powers it's about acting in response to legislation but that's not what the statute sit as the statute is about the powers of the administrator which you and i have agreed to not extend to ignoring court orders in a particular circuit that really has never be written in your mind how is it you have never even suggest in fifty six point five which all it says is that the regional offices can act without consultation if such inconsistent application is required in order to act in accordance with the federal court's decision that's all it is if there were choir now i understand that you may think they make may make a mistake about whether it's required or not that's how you get into this problem maybe one region thinks one thing and one region and some other but there's nothing in the statute that requires  to solve that problem in this this is just a delegation that says if you are required you should do it if you make a mystique if you weren't required well somebody's going to catch you somebody is going to sue in another place somebody in the same place is going to sue inspector general's going to ask you questions but that's all on the regulation says if you are required to act this way and you should act this way and trying here it's not trying to limit the time or how many different circuits we're going to have before we you know adopt a nationwide policy let's say that the summit they did didn't do the nationwide roll making that they did and we end up with the sixth circuit saying that their ads a cent definition is wrong then the fifth then the fourth then the third at what point is that the e p a needs to reexamine what what exists national policy even if even if you wanted to have a this is not a delegation of power so it wouldn't be within the regulation anyway it wouldn't be within fifty's section fifty six because this is not a regulation to be followed in tearing out a delegation but there is no mechanism in these regulations to try to resolve the inconsistency because they're about what the regional administrator should do or not about what headquarters should do you want to regulation for what headquarters you want to clean up any consistencies among the circuits you want to direct the administrator to figure out a way to do that but only the administrator can do that it's not exactly geishas question and therefore it's my current my seventy six o you don't have to go to rome i can make a determination which is finally well it would be determination would be imbedded within the final agency action i don't think of course what you don't have you're not limited to ro issuing a final agency action of one kind or another which included a terminations which was inconsistent with the sick circuit and that would go to the d c circuit correct and the d you understand the point because that allows you that procedure either by rule making or by determination and finally the action to insist that the matter be brought to the the agency to sustain on when you bring it to the usually circuit well if that's in the context of the rule making or other final agency petition or for any determination that's finally action correct then you'd bring it to the national significance issue is not apparent until you develop senator and that raises a question whether you can remove or not you tried that once in rejecting it was rejected by one of the circuits right that was in the fifth permanent question correct and but the issue was a clear issue of national significance whether education man geographic or q you could take into account function well that was the sources argument they also had other arguments that we were misapplying even the the interpretation that we've long espoused in that case so wasn't clear from the outset that that was going to turn out to demonstrate determination of nationwide scope or effect and as you know didn't force the cases that's correct and that if the only issue in that case had been a jason that was a national national significance and should have been you should have made a determination of some kind finally action and brought that to  not sure we needed to make that in the initial a pic of delivery determination for the facility but if it became clear when they filed the petition for review and identify the issue that they were intending to raise in the sixth circuit then perhaps we could  sure i'm following you on on your ranch george children when he says it could be the rule making or and so maybe i'm being a foremost in my head now what is this war you're talking about is it sentence of section seven six zero seven b one it's a very long first sentence but it basically sets out those categories you either have final rules though you have final agency action and then the second rule says telling me to ask you tell me what you're talking about no right so those those defense a funny joke you some of what are you going to do let's assume you didn't issue that little memo that got you in making i'm trying to make it like summit in that you issue that in my model and so but the sixth circuit has issued something which causes you great this pleasure now what are you going to do well to get into this quote exclusively it has to be one i want to know so you all meet and you say ok now let's do and it's not going to be really make it so tell me what this thing is well you know don't think i've ever seen in the summit memorandum that that was reviewed in this court in kneecap one if we one trying to get out that's not terribly helpful if i'm understanding your point but some it was a statement of non acquiescence you're talking about something that would either be a final rule or a final something that policy to recognise only decisions of the supreme court and decisions of the us court of appeals for the d c circuit that arise from challenges to nationally political regulations or final action shall apply uniformly are you saying that if you make  determination that it is a nationwide scope or a fact and we make a decision you don't think that has to be applied uniformly no we would agree that it does have to  think if you look at the statute the second sentence of the law first sentence i referenced earlier brings it back into the first sentence if it's based on a determination of of nationwide scope or effect in about it but you you specifically say that arise from jurisdiction of this court and i think that that makes it very clear what we're talking about there that anytime this creature viewing something nationally a political or of national scope of fact that will be binding throughout the united states well i'm glad to hear that you read it that way but it doesn't say that you might want to fix that problem if that's what you think but now let's get to the big question how do you distinguish the regulation in our previous case from the two things on that you know number one the stamps you contains contains the phrase general applicable procedures and policies we read that to mean in the ordinary delegated responsibilities of the regions in the  stablish in general applicable procedures and policies right and so we're saying that then these are for the word narry day to day delegated responsibilities not the extraordinary event of  between uniform application and fairness and uniformity in the criteria applied that's what the statute says it just puts the word applied in the past tense rather than i don't even know what form the form of the per application is in that other circumstance well i don't think any difference in meaning between those two will be even if the court does not the statutes of course are read in their broad context as well and the clean air act as judge edwards and other panel members of notice noted that the congress clearly set up a system where you will have conflict there are i understand all that i'm only trying to figure out any significance with respect to the statue in question for me it does it does and that this court did not even reach the statutory question at all and now i know why doesn't the logic of our has expressed that intent clearly in these amended regulations i have found no indication in the language of the regulation which is not very different than the language of the statute that's the problem which is we were reading language to exclude that possible and and what i'm saying is the statute contains different language and enough to give and now in the amended regulations it's interesting the significance of those terms for the first time in the context of judicially created inconsistency it does not speak to that issue at all in the regulations of the core fell back on the on the what it said was the with the existing constraints on the agency under the under the statute whether it's the a p a or the fallback if your vision really why detect your position really proper interpretation of prior opinion even though the statutory language the language of the regulation are very similar nevertheless you can we can the terms of the act it just went right for the bottom line we're going to apply some in the sixth circuit and nowhere else until we figure out what to do the agency by the way has then taken additional remaking steps to bring more as much uniformity as the camp to the we better make a determination that it's of national scope or yes or who is who has grounds to review that and watch the scope review this court is where would be reviewed  figured right what do we have no still give good afternoon your honors and may have please the court my name is shannon bream and i'm here today on behalf of the petitioner speaking in rebuttal in support of the argument that ms would previously gave i would just like to make three quick points in my limited time first is that the breakaway sions under the statute must be designed to achieve fairness and uniformity and must be designed to provide a mechanism for identifying and standardizing inconsistency is that's only if they are regulations for carrying out a delegation of the power of the ministr the regulation used to spare it's not extensive enough judge of qualities pointing out all it does is deal with delegation of flowers regional director your basic argument disregard a six circuit decision even if it goes to a fundamental issue of the clean air act and not speak at all to the rest of the country and our clients as we are dealing with permitting decisions and when you're talking about the definition as miss with said stationary source goes right to the heart of the situation i could have a source in colorado that span klein and i would tell you that the time that if there is some other source in colorado that doesn't appeal that because they need to get their permit and move on for economic reasons it's not going to get out resolution understand the question you're suggesting that i could i could generate a situation where i have a client who asked the question gets a determination no we're not applying the six circuit and i'm sorry to hear what you said i think they would be respond with alacrity if they didn't like the circuit court opinion maybe i mean the problem is that may not be a satisfactory answer for you but i think the problem for us is that we're not sure what what you think is of loyalty of the chief judges rares one serious concern about the nature of the case would pose a problem story or are all the courses i just don't see what you're really talking something that's that's the burden of your brief do something i would say that it's not problematic for them to issue a rule that resulting consistency they did that here in the  jurisdiction over that we have to you have to go to the d c circuit to argue this one now so they go to the d c circuit challenge it and it fits with us from court take cert then they overturn it likewise and that seems like a long way to get to a refined whole decision replacement under the new source review program and there are some circuits that hold that it needs to be routine and to qualify for this exemption from your search or view it needs to be routine at the  industry so if i'm a source in that circuit and there's something that i would do in every unit but only once is like but that gives them statutory interpretation right right so the loser can always go to the supreme court and that it seems like a faster way to get uniformity than to instead be asking the administrator issue a rule which overrules whatever the rule was in that other circuit and then try