freelance writer who lives in the vicinity of this plant and whose will be breathing the air that will be degraded by six thousand five hundred tons of clean air act regulated the operative principle in this case is one of cooperative federalism most states not all but most states including mississippi have requested the authority to implement the prevention is significant deterioration part of the clean air act and in so doing they undertake this compact with the federal government where the state is the primary implementor meaning that they take the federal principles risk right by the clean air act and federal regulations and apply them to individual applicants and issue permits so the states that are see them through what we call approved under their state implementation plan are the primary implementers in the sense that they write the permits however their authority is totally dependent on they are following the mandates of the federal law that is the cooperative federalism and the compact that is made by states like mississippi and this case what happened is that you literally became a private club with the applicant and that's clearly evidence in the e mail trail we mentioned a few things from the record but when the age permit writer says on the third day of receiving a huge book containing the application that her primary mission is to close out the comments so as to allow a final permit for financing when the environmental permit writer says that on the third day i think it says it all and finally when the comment period closed after us on a friday evening she sends a text to silicones representative saying ok we'll issue the permit wednesday highly irregular conduct and i think it demonstrates that what really happened here is that they became a club and they forgot about the public interest now when congress enacted part c of title one which is the part that deals with t permits they begin that section with a very clear declaration of purpose they have five key purposes some obvious protect the public health prevent degradation of the air protect the public parks and these are the overarching purposes and the fifth purpose this is in one sixty section five the overriding purpose is to assure that a decision to permit increased air pollution is made only after adequate procedural opportunities for informed public participation and that's exactly what did not happen here and d e q and its rush to judgment  get that permit out the door and get the financing done toward the end of jobs an understandable purpose but not the right purpose for an environmental regulator to get that permit out and the financing done they forgot about their duties to the public congress in their effort to are sure that there would be national uniformity in the prevention of significant deterioration permit cases so i'd like to step back before really delving into that and just make two observations partly because you may not see clean air act cases all the time but one observation is this case does not involve title five operating permits title in the clean air act is a totally different area this is a title one construction permit case the reason i bring that to your attention is that you were sent by letter a copy of a case from the arkansas nucor steel and in that case arkansas like only a few states has brought p s t within the title five provisions and they are for the title five appeal apparatus controls so this is not a total five case mississippi has not done that just like texas has not done that most states have not done that but arkansas has so the title five cases are in opposite the second observation i would make is that this is a case where we are challenging the legitimacy of the p s t the so called p s t permit because the state agency failed to follow the preconditions that are s out in section one sixty five two through eight the preconditions to the issuance of a permit those preconditions tell the state agency how they of that you wait the application they do not tell the agency what permit terms to issue the latter is within the expertise of the state agency in the exercise of their discretion but the former is the set of criteria mandated by congress for the just that in the alaska case that we cite they say one sixty five a two through eight are preconditions to the issuance of a p s t permit so we would submit iran or you cannot in a cooperative federalis system have the state show through its regulations that it's going to adopt the clean air act mandates and then forget about them in the course of implementing that cannot be the law so there are requirements met for a national meaning they had applied for p s t authority they were the primary implementers of the p s t permit just like mississippi and in that case the state agency issued a document that it called the p s t permit just like we have here now and what e p a said in that case was wait a minute you left out one sixty five a for the demonstration that you have the necessary control technology that was omitted and so that is not a p s t permit that's what he said they issued an administrative stop work order and the supreme court of the united states said they were correct because one sixty five a two through eight all of those conditions are preconditions to the issu a p s t permit and in the words of the supreme court we've been very careful to quote the exact words absent compliance with these construction may not occur so they are prerequisites so what happened here is opportunities now this court in the clean coalition case which is a matter of great dispute also says that one sixty five a provides and quote pre construction requirements that are preconditions preconditions for granting a pre construction permit and that's a cage for seventy seven those are the exact words of this court in that clean coalition  clean coalition although it doesn't refer to the alaska case for that principle so it's exactly the same principle one sixty five a three two through eight are preconditions for the issu a p s t permit now my opponents would say well that was ek you're a citizen you're different first of all preconditions are preconditions or preconditions there's no difference there there's no reason why that should be any different that e p a was relying on allows them to sue the owner of a facility when the state has not followed its own rules its own step roles that are meant to implement the clean air act that's what he was relying on in alaska and what we're saying under three of four a three is that we want to sue the owner of the facility because the state u affiliates is yes they're correct about that mr carden however has no relationship whatsoever he's just a citizen who lives in the vicinity of the burnsville area so there is an affidavit in the record the talks at length about him he's a entity that owns a piece of property in the area but it is going to do with a piece of property just owns it and i'm a rental that i don't know the details here either they may rent it but they own a piece of property that's all i know but what are you going to do with a piece of property don't just own things you the remember your make a business or you make resident you know i don't know the answer to that i'd be happy to provide it to the cart but i they have talked about renting it i've heard them talk about that whether they have or not i don't know ok now the trial court in this case held and this is in footnote twenty one of the opinion that one sixty five a two through eight are not preconditions to the  that is plainly wrong and contrary to what the supreme court the united states and contrary to what this court said and clean coalition and my opponents don't defend that position of the truckload court in footnote twenty one rather what my opposition relies on is citing language in the clean coalition case that says that three zero four eight three means that you can bring suit when someone has no permit what so ever and they would interpret that very broadly but of course that's not what the statute says the statute says no permit without a perm meet with the statute says hard to imagine that the fifth circuit in that opinion means to broaden what the statute requires which is a permit required by part see so the fifth circuit has to mean that but that wasn't the holding really that case that case and all of its progeny is cited for the proposition that when you bring a citizen that case against an application for a permit as opposed to a permit it isn't right and that's what all of the subsequent cases have looked at claim coalition as standing for so let me let me talk just very briefly about what happened here they were required mt q was required to put the entire application which has all of the a impacts all of the technology pollution control technology analysis cetera in the county where the facility is going to be built they put nothing there and this was their regulation required it the federal regulation required it required that it all be there to provide an informed opportunity for the public none of it went there it was placed two hundred forty three miles away at mt each use headquarters available their own draft permit and their own analysis that was that they ran an ad saying you would have thirty days and then they only get twenty nine and what they did put there they didn't put until five days after they ran the ad appeal what we're challenging is m d e cuse failure to comply with the clean air act mandates and one sixty five to and the by the way the supreme court the united states said in alaska it was not  i think if you wanted to go to state court to argue that the federally mandated national consistency guidelines were violated by mississippi in its zeal to obtain jobs you could do so but i don't think that means that a federal court can't hear the case so for all of those reasons your honor and also the supreme court's reference to the potential for environmental economic  blackmail and the need for national guidelines we ask this court to find that there is jurisdiction to vindicate one sixty five eight thank you thank you silicone and i also available to ads or questions about our argument that the appellant's lack standing to appeal the district court's subsequent border dismissing the claims against mississippi department of environmental quality ms from mississippi department of environmental quality will address the time to file a time of filing your honor ms jennings made a variety of statements about the merits of this case but we were here on an appeal of a decision dismissing for lack of subject matter jurisdiction and i think that the eighth circuit said it best in a suit called nucor steel arkansas versus big river steel clean coalition has already decided the issue of whether a party can run to federal court under section three zero four a three to challenge a p s t permit that a state is issue d there is no meaningful distinction between that aspect of the queen coalition excuse me of the big river steel decision in queen coalition big river steel was a very similar suit where a competitor decided that section three o four eight three was the right way to try to stop a competitor of constructing claims although there were twenty seven claims in the big river steel case some of them were very similar to this there was an argument that big river steel submitted comments at the end of the permit ing process and that prejudiced the public's ability to participate that was count nineteen in big river steel there were allegations that the state was colluding with big river steel in the permuting process that was claimed twenty six in the big river steel case it was almost identical case and when that court the eighth circuit looked at this court's decision in queen coalition it said the fifth circuit has decided this issue already you can't go to court and challenge under section three zero four eight three construction under a p s t permit  interpret section three zero four eight three but clean coalition does and what it says good leader quote the district court interpreted that section i e section three zero four e three as authorizing citizen suits when an entity proposes to construct work construct a facility without a permit whatsoever we agree with the district court's interpretation appellants interpret the phrase without a permit to mean without a permit the complies with the queen are out however we declined to rewrite the plain language of the statute i simply don't see any way you read that language as board of the mississippi department of environmental quality and notably in their complaint they do not allege that they couldn't do that they had the opportunity to do that they chose not to and so the state exhaustion well this is not an exhaustion case i think it is relevant in interpret ng section three zero four eight three and what congress meant with without a permit required under part c in light of the fact that congress understood that there was a state of the avenue for appeal as i see it there really are two distinctions that the appellants have offered for clean coalition of the first distinction is the substance versus procedure decision and they said well clean coalition was challenging the substance of the permit application and we're challenging the state's compliance with procedure in the district court they conceded that there was no difference in the way the clean air act treats substance event procedural challenges that's that record page ten ninety five if there is going to be a principle of distinction between this case and clean coalition you need to it from the statute it can't be like saying the comparative negligence will may apply to automobile accidents but not motorcycle accidents we need a principled basis that comes from a statute there's no principle basis that comes from section from the substance of vs procedural section all of the requirements substantive been procedural are from section one sixty five a as implemented through state implementation plans substantive  procedural there's no distinction there the second distinction the appellant's of attempted to draw comes from the fact the clean coalition considered considered a an application a challenge to a permit application versus a challenge to a facility that's already been constructed and i think here it's important to go to section three zero four eight three to show why that difference just can't matter section and i'm going to begin a quote here against any person who proposes to construct or construct any new or modified major emitting facility without a permit required under part c and i went there but it goes on further when coalition was based on a proposal to construct a theory the defendant in that case was proposing to construct a coal fired power plant through the submission of an application we have already been through that process and who are now constructing but there is no difference in the way section three zero four eight three treats a claim based on a proposal to construct a construction the limiting phrase in both in both this without a perm required under the part see it may be a distinction but it's not a principle distinction it's not one that matters and i think it's also notable that while the appellant's cast clean coalition as a substance ca far from clear that that's true in the district court of star thirty three of the unreported decision the district court said that this was essentially a collateral attack on the texas permuting process and that's what we have here in the queen coalition decision it's interesting that the court relied on an unrecorded ninth circuit decision called highs in versus pacific coast building products and in the political citation to that they said that the ninth circuit was quote rejecting attempt whether of attacking the terms of a permit it relied on cases attacking the issuance of a permit and it's hard for me to see any way this case isn't a challenge to the issuance of mississippi i'd like to turn to the alaska department of environmental conservation case again not a section three zero four eight three case to show why congress gave the e p a more authority than it did citizen three zero four eight three alaska department of environmental conservation concerned what's called the red dog mine in alaska it's the largest sink mine in the world and they were putting five very large diesel generators in there when alaska wrote the permit for that case for that facility there was a dispute in the alaska agency about whether require one control technology or the other e p a ultimately at the end of that process said you did not provide sufficiently reasoned explanation about why you chose the less expensive to control technology and the e p a said to two did two things it said there's a stop wor seventy seven that statute says the administrator shall and a state may take such measures as necessary including issuance of an order we're seeking injunctive relief as necessary to prevent the construction or modification of a major facility the germ bidding facility which does not conform to the requirements of this part does not conform to the requirements of this part is for more expansive language than section three zero four eight three which refers only to a facility without a permit required under part c e p a was also acting under section one thirteen a five authority what that statute says is were never on the basis of any available information the administrator finds that a state is not acting in compliance with any requirement or prohibition of the chapter relating to construction of new sources th can take certain actions and he requirement or a prohibition of the chapter is far broader language than you have in section three zero four eight three which refers only to the permit and that's the point that the district court got to in its decision that we do agree with when it said what does congress mean in section three zero four eight three when it says without a permit and  looked to the p s t program sections one sixty one sixty nine of the act and said well the permit requirement is the requirement in section one sixty five a one and in interprete ng it agreed with the queen coalition court which said review all state and all e p a permit decisions the appellant every challenge to p s t permit that's brought in state agencies throughout the country or before the environmental appeals board is that the facility of this state has in some way or another failed to comply with one of the requirements between sections eighty two and section eight those are the claims brought in every single such case in a recent wall making e p a estimated that there are seven hundred p s t permits that are issued in this country you share we cited that in the brief those are seven hundred potential suits for competitors for the sierra club and for others to bring to federal district court where they had an available state remedy in fact one could argue they may prefer to bring such a suit in federal court that  as well on pages four seventy eight when looking to what did congress mean without a permit it makes sense to consider whether congress would have through its without a permit language intended to bring all those cases into federal and finally i'd like to turn back to one question that you had judge comment on sixteen front street and what sixteen front street does we don't know what it does others in sioux mississippi sil it is notable that sixteen front street was formed approximately two weeks after the mississippi permit board denied an appeal by a globe metallurgical to the mississippi silicone permit this is metallurgical decided not to submit any comments on mississippi so a concert permit but it did file of untimely challenge in the permit board the permit thank you have you for the rest hunters you have five minutes sorry your honor that i have long thought that there was nothing unique at this point in time that had happened to people already but as the briefs certainly demonstrated and as you know the the stiction is determined at time of filing the defendants have argued that that rule only applies in diversity cases and rare federal question cases when removal is that issue but that's not the case in this question all of those federal question is where the court look to term a filing to determine whether or not the court had original subject matter jurisdiction so we submit that time of fouling is the correct rule of law to of fashion address and they said well you can't set aside jurisdiction for jurors you know for judicial economy it's too important you can refile you can go subtle but you have that option but the court does not have the option to extend jurisdiction where none exist to opinion that clued in that one and i thought it was pretty clear made a distinction about when you the parties don't change then you're talking parties the parties in this case that train just well first of all parties didn't chinese their original complying was filed against mississippi silicone and that didn't change then there was a challenge to jurisdiction so that out as i understand it your honor that's that's you cannot you cannot create retroactive jurisdiction the signet the distinction in this case is that there was that challenge to jurisdiction may so the court had to create jurisdiction way or none exists and that's what we have in this case the court didn't have original jurisdiction even by the amended complaint it didn't change the allegations that were the  corrected not to correct formal or technical allegations but to create a new party a new client so it would be our position your honor that this that would provide confidence in the court whereas the original plaintiff did not and i understand that there are instances where the courts have denied  allowance of a new plaintiffs to create confidence they've never allowed it to create confidence where where no one exist to begin with and that's i think in this case the issue is that jurisdiction i'm sorry that's my time we have the argument thank you are returning to us from a bottle first of all quickly on the nuclear case cited by my opponent as i mentioned in opening that is in the arkansas arkansas brings p s t within title five i was surprised to hear him say it was almost identical with this case mississippi does not bring p s t within title five and also as you will see title five has a very elaborate appeal mechanism in the state and federal court and so when the they argued for three zero for a story there they were arguing for a third route appeal so n challenging an application and that was a challenge to an application in clean coalition and by the way that particular challenge had to do with the technology choices made by the state agency and with the modeling approved by the state agency both of which resulted in permit terms permit terms so those are peculiarly within the sound discretion of the state court and totally different from what we're talking about here secondly we are not arguing that the permit fails to comply with the clean air act they want to say that because that's the language of clean coalition but compliance with the clean air act is the square pointed out in that case was an earlier version it was the house version of zero four and that was not adopted in the conference report which was adopted it is without a permit required under part see we do not argue that this is a permit that does not comply with the clean air act we just don't make that argument what we're talking about is a state a state that fails to comply with the clean air act because they are participating in cooperative federalism they are given a list of precondition according to this court and the supreme court that they must apply in the exercise of their discretion and that's where they failed they totally utterly violated their own law and the mandates of the federal law thirdly he says that he tries to make the distinction between substance and procedural that's not what i said what i said was the state failed to meet itself legations in how you analyze the p s t permit this is a cooperative federalism case and what we seek to do is vindicate the indicate the mandates of congress in the p s g program so i think the key language in clean coalition is when they say therefore we decline to rewrite the plain language of the statute and the plain language of the statute is not any permit whatsoever the plain language of the statute is a permit required under part c and that's what we c honor this was not such a permit just as in alaska where they had not justified the control technology they had an inexpensive one they were anxious to lower the business on the jobs where they were sorely needed in alaska so they skipped over the one sixty five eighty four requirements just as in that case in this case and he was unduly motivated to facilitate the closing environmental regulator wants to facilitate the closing financial closing instead of doing what she should be doing which is regulating and that's a failure and in so doing by the way it was just the two of them the public had none of the things that they're guaranteed under one sixty five eighty two and federal regulation most importantly the very thick application with which would allow the public to make their own judgments that was not there and not available so  the last thing i want to mention quickly is the alaska authority my opponent tries to make the argument that e p a has broad or authority because there vindicating any requirement of this chapter but what he fails to notice is we're not just talking about one thirteen a five cited by him we're also talking about one thirteen b three and so the any requirement is not comparing the permit to the air act the any requirement is comparing the requirements that are placed on a state when it is given the authority to issue a permit to degrade the air those are the requirements the requirements that apply to the state and in alaska they issued a stop work order to the owner because the state did not meet the requirements one sixty five a for in this case mississippi did not meet the requirements of one sixty five eighty two so yes there is a difference but the only difference is e p a can issue an administrative stop work order obviously citizens can't do that citizens have to come to the court couldn't possibly have that happen so that's the difference it's a distinction without a difference in both cases it was a failure to meet one sixty five preconditions or they could very much