version's environmental protection agency mr smith reasons st best available retrofit technology determination to the nelson power plant fails to meet the requirements of the clean air act nd e p a unlawfully failed to provide a rational connection between  approval of that determination and its conclusion that key aspects of the underlying analysis were invalid and unsupported and rd the plan fails to comply with the reasonable progress requirements of the clean air act on the  st point the clean air act and e p a s binding regulations set the standard for best available retrofit technology under the act states must require sources like the nelson power plant to meet emission limits that are commits commensurate with the installation of the skirt to improve and eliminate haze unless the state can provide a carefully reasoned justification based on the five statutory factors and in accordance with the e p a s binding regulations that a different emission limit is justified louisiana's explanation for departing from that mandatory limit fails to comply with that standard the state's explanation its cursory two sentence explanation fails to acknowledge the standard let alone carefully evaluate the conflicting evidence and the analysis that's fundamentally inconsistent with the finding that low sulfur coal the least effective option is somehow the best effect of a best available retrofit technology used to work commensurate is not from the t u that's typically associated with the installation of of a scrubber and again that is a mandatory standard unless the state can provide a reason justification based on all five factors statutory factors that a different limit is warranted and the state's cursory two sentence explanation for departing from that standard is wholly inadequate and at the outset the state fails entirely to mention two factors of the other factors that it does mention it fails to evaluate those factors in accordance with the bar regulations and it's helpful to take them one by one so basically that the really you see would be to send it back to the state adds more sen no that's not the relief we seek your honor the state at the end of the day has to make a carefully decision that carefully reasoned decision based on all the factors and it must show its work and must evaluate and grapple with inconsistent evidence in the record not only has to have it there in the record but it actually has to go through every single thing in great detail is that's a requirement under the law and what in what says that we could does it say you have to articulate every single element and how the pros and cons of each one injury status instead of just having it in the record the regulations set forward a detailed methodology and metrics by which the states must evaluate their their selection of the best alternative the best retrofit alternative and going through each of the elements reveals the fundamental defects in louisiana as planned you know the best analogy i can think of is as you know we have hundreds probably thousands of sentencing guideline cases every year and there a number of sentencing factors that district judges are required to take into account in our case law basically says that if the judges if they say that they consider the sentencing factors we don't require them to go through each one and explain how that particular factor is or is not satisfied because we're confident that in that case the fact finder will lived up to his or her representation that the factors have found fundamental defects in the analysis underlying the state's decision to go with a low sulfur coal it conducted its own analysis that is fundamentally incompatible with low sulfur coal as the best available retrofit technology but afterwards the e p a doesn't know how much the coal costs any better than one industry that has been buying the coal for some time so that it's not clear that e p a is analysis is better than the state's analysis on what the cost of the coal would be and that's a fundamental point of difference that it's exactly right your honor but at the end of the day the state must still provide rational connection between this it's selection and the outcome and if the state believes that e p a is analysis is incorrect it's incumbent upon the state to provide an analysis that shows why and in the initial that it had  cost of coal and so with that in mind the state had an obligation to take a look and resolve the inconsistency is in going back to the sentencing guideline analogy which i think is a good one e p a s analysis is fundamentally inconsistent with a found and in this case it would be as if the appellate court reviewing a sentencing decision told the district court you made several errors of fact you misapplied several principals and sent it back and instead of addressing any of those errors the district court sent the opinion right back without making a single change and without even acknowledging the errors of assignment that the appellate court made and that's happened from time to time and it would yeah and i'm sure it doesn't it and it wouldn't make sense then for the appellate court to simply rubber stamp the district court's decision simply because the district court had all the information before it i'm kent councillor you can address standing at some point i don't want to get you up track from where you're going but it's not at all clear and that the different entities have standing here yes your honor in support of our briefing we submitted five standing declarations of members who regularly visit the parks are affected by these pollution that's but they are not it visiting the breton national wildlife refuge that i could and that's the money issue here isn't it two points both britain ashen wildlife and canyon creek only creek in arkansas i don't believe that these declarations met maybe you can tell me which ones do because i have them here and i don't see that they say that it they visited that those and they intend to go back to those particular ones and we have case law that says for article three standing you have to have the future intent to go utilise the reese i would encourage the court to go back and look at the declaration the sworn declaration of mr eustace who conducts profession his part of his professional duties as an ecologist an employee of ecological company organization is to go this is the only declaration that regularly goes to britain national wildlife refuge and the haze in that area diminishes his ability to actually do his ok professional work era club but he is not with the other gr the in p c a so is there no declaration in the record that would support the n p c a standing your honor president says that standing for one is standing for all we did submit a declaration on behalf of n p the discusses their institutional and associational interests it doesn't say standing for all it just says it's good and you don't everybody doesn't have to have standing for us to look at it doesn't mean those people get really i mean in the bill doesn't really matter if the sierra club gets really i mean you're correct your honor i was using a shorthand term if i could pivot back i would like to spend at least a few minutes talking  in particular in two thousand and twelve e p a declined to approve the long term strategy element of the state's plan and in so doing instructed the state to go back and evaluate whether emission reductions for any source including those that are not subject to board should be required to make reasonable progress toward eliminating and eliminating hayes and it's important here to look at the  under the four statutory factors reasonable progress and whether emission limits should be required e p a s new found explanation for relieving the state of this obligation has no confines no support under care so as a result of the disapproval there is now a gap in these in its plan and the state must go back and re evaluate reasonable progress including for sources not subject to bar now that obligation stems not just from the directive in two thousand and twelve the final rule there but from the clean air act and the regional hayes rule itself which plainly require the state to evaluate those fo statutory factors and this isn't just an academic issue there is extensive evidence in the record demonstrating that emission reductions from these non board sources would have important visibility benefits and would be cost effective i just want to come back to one a couple more points on the the board issue if i may before the end of my time here e p a approval of the louisiana plan reflects an reasoned decision making that's the agency itself fails to make a connection between its own finding that the analysis underlying the the states best available retrofit determination for nelson is itself invalid and unsupported by the record and it is not enough for the state again to claim for e p a to claim that the record contains all of the adequate information what the record contained before d p a is essentially two analyses one that u k finds to be invalid and again unsupported and those findings are in the final rule which i would mention no party challenged including louisiana itself and then another analysis that e t a conducted because it's found energy's analysis so flawed another analysis of the agency e p a conducted that shows based on every metric and methodology required under the bar regulations that low sulfur coal is not the best available option under any factor and in fact provides for an apples to apples comparison between different technologies because if any will cost alone were the determining factor no state would ever require technology to be installed because annual costs are always going to be more expensive than doing nothing at all with your client harmed if the goals are already being met they're well under the goal if they're meeting a more than meeting the goal louisiana is not on on the glide path and so if louisiana wanted to make that that argument decide on that basis it was incumbent upon the state to make that decision and finally the statute itself has repeatedly is stated in unequivocal terms that being on the glide path itself is not a safe harbor from reasonable progress analyses the state has to evaluate cost effective and reasonable control technologies and decide whether under the statutory factors that make sense to require them and i do want to make one last point is being on the glide path does not have anything to do with the bar determination is independent of the reasonable progress goals and the factors in the clean air act itself requires the installation of or a best available retrofit technology regardless of whether the state is on the glide path i would like to point out one last thing if i may before i see issue may were a little bit flexible on that time if there's another point that you haven't been able to make you may go you in with respect to the visibility benefits associated with the scrubber it's worth pointing out that shows that a scrubber would result in three times the benefits of low sulfur coal nearly eliminating nelsons impacts to every class one area that it affects given the statutory mandate under the part section of the statute to eliminate the state was required it was incumbent upon state to explain why a technology that would virtually eliminate his pollution from a particular source was useful life factor was essentially a wash because there are no binding commitments for the unit to retire and so at the end of the analysis that doesn't have an impact one way or another on the last factor very quickly the environmental impacts factor  the state does cite this and its cursory two sentence explanation both e p a and entergy in their analyses already incorporated those costs into the overall cost assessment and e p a concluded that there was no significant impacts from the installation of the scrubber and so if the state disagreed with the e p a s analysis again it was incumbent upon the state to grapple with the and the facts in the record and come up with a rational can conclusion based on those facts it please the court earned straight on behalf of the industry titian hours and during this a portion of my argument i'm going to discuss the industry petitioners challenge to e p a is the firmaments of louisiana's finding in particular i'll focus on why the state's exclusive reliance on the kalpas model which is unreliable at distances of greater than three hundred kilometers for him and e j from approvingly is subject to bar determination for these units and i think at the outset it's important to just reset and remember what the regional hayes program is all about as this court recognized that footnote forty two of its texas vs e t a decision in two thousand and sixteen the purpose of the regional haze program is not generally to advance human health by reducing emissions overall the purpose is to improve visibility in national targeting the sources that affect that visibility so using wildly inaccurate or overly conservative modeling to reach far distant sources sure that will lead to a decrease in emissions overall but it will not accurately target which sources are reasonably anticipated to contribute to those visibility impairments so i would submit that the court has to address two questions that i'll focus on this morning to address petitioners challenge st the court has to decide whether it was improper or arbitrary for e p a to affirm louisiana's exclusive use on kalpa if the court finds that that was that the state did not rely on or whether at that point the state that's the sepsis have been disapproved and the state should have an opportunity to select its own methodology and its own rationale from were subject to  that louisiana would go back and make that determination again it would under principles of federalism and the way the structure of the clean air act works louisiana would have the opportunity in the st instance to select which model and which methodology it wants to use would be ruled out in our view it could accept whichever model it wanted and then it would make the determination of subject to bar and then e p a would review that determination i suppose e p a could also it wanted to but i do think it's worth pointing out in response to your honor's pragmatic question well what's the what's the real harm here we're past the st planning period this case is all about the st planning period which ended december than it's relevant right now because these controls are you know being put into place right now in much tangentially relevant though because the cow puff was just for your or the other the other states because they came before the new determination that cow puff was not going to use another context so everybody else will use kalpa for this stage right that is largely true with respect to the states that did their own steps for example in the texas fip which would be e p a s action they looked at distances longer than three hundred kilometers using both because they recognize the short comings of kalpa but that is a people all your comparatives are using cowpox because it was an earlier time period i don't exactly agree with that your honor because i gree with a factual statement that they look at sources that were farther away than three hundred kilometers so they're not compares to us on that instance louisiana looked at it sources that were three hundred and fifty to four hundred and sixty kilometers away from class when areas were under psyching about three of course and the rule says well we did use kalpa twice before for more than three hundred kilometers one of those was a very old use before there were any other options for modeling there was no cam x developed at that time and so i don't think are analogies exactly accurate and it would be significant relief both for our clients and i think it would be a very important precedent for the agency and the states going forward to know we're taking you at your word when you say cow puff is unreliable at more than three hundred kilometers the states with no ok we need to cut it off at three hundred or we need to have some exceptional justifications tweaks to the model to allow the use of  to say that right and it hasn't been addressed one way or the other by a federal court of appeals i think the closest federal court of appeals guidance we have on this is judge us kalends opinion in the national park conservation association versus reason for that and he characterized the v a s pressure now as as having said that the model was quote not suitable for very long range transport more than three hundred kilometers it we have to give some sort of brief expressly says that cal puff produces reasonable results so long as the distance is limited to three hundred kilometers so we're not complaining about the guidelines we are actually saying enforce the guidelines and not only enforce appendix w to the guidelines but e p a as and as a federal administrative agency must act consistently with its past actions excluding sources beyond three hundred kilometers or it must give some sort of reason explanation for why it's departing from those previous examples and as i mentioned both in the new mexico and the arc and saw regional haze programs that the agency repeatedly said we're not going to look at distances longer than three hundred dollars and a firm states that refused to do so the montana federal implementation plan was the what it is you in the th circuit opinion again the agency was consistent there quite consistent and it's drawing the line at three hundred kilometers and of course if they came in and said it was three hundred and we're you know we've thought that you've thought that through and we think that's going to work ok we would be fine with that but we're looking at three hundred and fifty to four hundred and before as i mentioned one of those was so all there was no other option to use the other one was very instructive the other one is the south dakota regional haze proposal and in south dakota the p a correctly says they more than three hundred kilometers but we worked with south dakota to develop a close specialized model to address the shortcomings of kalpas for these further distance sources e p a did not do anything of the sort with the state here they simply ran a traditional kalpa and then in the role they try to reverse justify it and essentially say well the only other reason they give my nd point on the e p a is insufficient reasons for departing from their previous rationale is that they centrally said well these units have really high admissions and they're creating problems that are greater than one desk of you but they never explain how that relates to the model or why the fact that emissions are greater makes an unreliable model reliable if they had done a margin of error analysis and said we can handle the unreliability of this model busy because the outputs are so large then perhaps we would be deferring to their scientific expertise but they didn't do any of that work like they did in the south dakota analysis so i guess i would turn to my nd aspect of my argument which is e p a cannot approve  on a basis that louisiana did not use so e p a we think improperly said the kalpas appropriate but then they moved on perhaps recognising kalpa was not reliable and did their own cam acts analysis that have to be a admits the states get to select the methodologies for determining which sources are subject to bart e p a then it has two choices are really three choices it can say the step is incomplete it can disapprove the separate or it can approve the explain this basic question opposing counsel of c r clubs council has already referred to this where is the state isn't it their plan that's being either up held or stricken down in various parts that the state relied soley on top of it was an approving or considering the cameras model at all and i think that is somewhat inconsistent with some of the arguments you hear time from the e p a in the briefs where they seem to say  and finally i want to just point out that this argument that we're making about the level of deference and role of the federal government versus the state of course comes into play in all of the arguments that we're talking about today and you've heard my friends on the other side from sierra club say that the state should have weighed the factors differently  reliable at distances over three hundred kilometers but there is no such rule e p a has never determined nor even suggested that tel cut shouldn't be used to model visibility impacts more than three hundred kilometers from the emission source or that the model cannot reliably or reasonably predict impacts of such a distance well e p a has acknowledged that cowpox accuracy decreases as the distance between the source and the class one area increases the agency quote has indicated historically that the use of cowpox was generally acceptable at three hundred kilometers or greater for larger emission sources with elevated stacks and that's in the on the further considerations that he always looks to such as in the texas two thousand and nine set up where texas used cowpox to do subjective art screening which is the process we're looking at here also it distances upwards of six hundred kilometers nebraska's also used kalpa at those longer distances and to address it industries point about new mexico in arkansas the reason that class one area is that a furthe and three hundred kilometers were not considered in those two states analyses was because there were class one areas that were within three hundred kilometers and the bart guidelines are explicit that it's not necessary to look at all of the class one areas for modeling if modeling for the closer in class one areas is sufficient to demonstrate that a source is subject to bart the guidelines don't expect a state to continue modeling all of the farther and farther away sources when they've already established that it's subject to bart so that's how the new mexico and arkansas cases are explained and going back to the fact that e p a looks at those for their considerations for larger emissions sources with allocated stacks now seven and brame are tax books sources workout has been deemed reliable at these farther distances there are extremely large sources two of the largest sources in the state of louisiana and they have elevated sta which increases the reliability of calpol it was entirely reasonable and consistent with past practice for e p a to approve louisiana sept based on its reliance on cal paf to evaluate the potential visibility impact  sources petitioners have not given any valid reason why the state of louisiana should be forced to depart from the bar guidelines and the bar guidelines in two thousand and five e p a made explicit that the preferred model in a in a very different context under the clean air act and looking at p t s d permitting situations and attainment designations and detainment demonstrations excuse me in the in that rule making e was simply providing more flexibility for states to use a number of different methodology used it didn't say top up wasn't allowed in those contacts just that it wasn't the preferred model however it did say just two years ago the guidance for calculus and it has no apply to ability in the bar process and in addition to that even if such an analysis were to be appropriate the analysis that's provided by entergy include go is fundamentally flawed and we summarize the ways comparing top off to actually monitor data is like comparing apples and oranges because calcutta is designed to isolate just to be impacts of a single source whereas monitor data is always going to show you the full universe of all the different impacts that are that are taking place at that moment the women when has been used beyond four hundred kilometers with valid criticism so in addition to the south dakota example it's been used used upwards of six hundred kilometers that was also the case in nebraska what is is any of this moot if we were to have descended back on either for the sierra club's points were introduced points aren't we already beyond this stage are you referring to the planning the planning process yes so the st planning period requirements don't disappear after the end of the planning period so it is still relevant what's been determined and in addition e p a doesn't share the position that two thousand and eighteen constituted the end of the planning period so when does the e p a think the into the planning period with i don't have that information in front of me right now your honor but i'd be happy to consult with once the planning period is over though what's the point well that the controls that are put in place in this planning period are expected to be in place for potentially the rate remaining useful life of the facilities so this will continue to have impacts long into the future but as to your question about the potential ministers was mr street just making something up when he said the plan period ended something that we briefed to your honor but i would be happy to provide supplemental briefing on that issue if you would request that going back to your honor's question about the practical impacts here it's important to note that industry's challenge takes place at step two of the part of the bar setting process and that's a screening stage states are afforded a great deal of discretion at that preliminary stage and in fact if this were to be sent back to the state the state would be well within the guidelines to simply advance every single eligible source to be subject of art the guidelines allow for that the state could perform no modeling or analysis whatsoever and that would be upheld the was free to submit a set that was more stringent than the act require it it's not even used position factually that the state did that here but if the state had sad we'd like to include all of the part eligible sources as subject to bart because would like to have visibility improve even faster to surpass the federal benchmarks for visibility that would have been perfectly allowable and e p a would have still been compelled to approve the state's it section one ten k in anticipation that it might need to craft a fit for louisiana e p a performed cam acts also can't be important why would it be even if you have it in your back pocket why is it the overall responsibility to ensure that the clean air act that it required the requirements are being satisfied what e p a as a says that you can you do your own analysis in rely on that in this context that's supposed to be  rationale what what authority do you have in terms you have any case ever that's a pill that sort of process e p a has been doing this for decades and it hasn't been challenged so we don't have a case that explicitly supports that but it's very routine for e p a to support modeling as part of its partnership role with the states e p a has a great deal of expertise in this area and often has greater resources than the states so here you do it and they didn't rely on it so it's that's right your honor the court could rely entirely on the cowpox modeling which the state explicitly relied on and which frankly has been used scores if not hundreds of times in states by states and by e since the beginning of the regional haze program louisiana is one of the last states to finalize its regional haze program and top off has been used for the subject of our screening process in almost every state and did you say it has been new since two thousand and seventeen beyond three hundred kilometers i'm not aware that any states have submitted it regional has sent during that period but i could i could provide that isn't that important whether or not anybody else is using it beyond three beyond three hundred kilometers past two thousand and seventeen it would be helpful to our case of if that was true i'm not aware that any states have even submitted a plan because where we are you know as we've discussed we're pretty far along in the st planning period in most states applicable requirements of the act and e p a regulations the court should also reject environmental petitioners challenge to e p a is approval on the basis of a legit defects in louisiana's long term strategy because those arguments are waived time barred and fail on the merits st e p a approval of louisiana's bark determination was reasonable states have wide discretion in the formulation of sips including discretion five statutory factors for bart determinations and the regional haze context the bar guidelines provide a process for states to follow in determining bart and the statute mandates that states consider five specific factors in their determination but neither the statute nor e p a regulations dictate the priority placed of those factors or require states to choose controls that produce the greatest emissions reduction so to it nelson quote based on consideration of economics energy impacts non air quality environmental impacts and impacts to visibility and quote e p a carefully reviewed the entire sips submission as it must under section one ten k three and concluded that louisiana submission contained information that comported with the a political requirements of the act thus e p a is approval of the submission was reasonable looking at environmental petitioners criticisms in turn the bird determination process is inherently source specific and the guidelines don't require states to determine part by reference to prior to termination some variation is to be expected given the source specific nature of the process and also given the discretion afforded to states in making the determination the fact that louisiana did not change its conclusion after e p a provided new information that corrected errors in the five factor analysis originally provided by industry does not compel the conclusion that u p s decision was on reasonable or that it found to comply with the requirements of the act such a rule would be unreasonable itself louisiana explained that it reviewed all the information in the senate which included e v a s accurate analysis and explain from the record before the agency as mentioned in the context of that industry challenges e p a and the states work in partnership under a system of cooperative federalism to implement the act it is not uncommon for the e p a to provide additional information to states during the sip development bears ultimate responsibility for ensuring that the clean air act is implemented and the agency has a great deal of technical and policy expertise in this area as such e p a works with states to help them council for environmental petitioners seem to suggest that the word best from from bart the best available retrofit technology that the cleaner prescribes what passed means but that's not the case of the states have a great deal of scrubbers were absolutely require because it was pretty much a no brainer from their perspective that the outcome would be best can you address that this is a classic difference and policy position if it were environmental petitioner's choice i agree it sounds like they would have chosen the scrubbers it is a no brainer but it wasn't their choice it was a state's choice and the state is free to weigh those five factors in the way that i into the state's overall goals in implementing the regional haze you don't have to reduce the most haze that's not the only goal it's not the only gold and visibility benefits as one of the five statutory factors but it's certain certainly only one of five and no where in the guidelines are in the statute does that does that factor have primacy over the other factors or somehow serve to trump the other factors the states are free to to give weight to the different factors  turning to environmental petitioner nd argument about louisiana's reasonable progress analysis and long term strategy the only aspect of a step that environmental petitioners take issue with in this respect is louisiana's determination that big cage into a power plant in louisiana was the only facility in the state that may need to install additional controls as part of the state's plan to ensure reasonable progress but that decision stage or similar to the stage that industry is challenging in the bar context the state st performs a screening process where it decides if there are any sources that it should evaluate for additional controls here notably the state of valuated and two for additional controls and concluded that none were necessary to achieve reasonable progress so what the environmental petitioners would have the state change is to say at that screening stage that door at hill's should also be evaluated for further controls it's not clear that the state would decide that further controls were appropriate there the reason that this is a time are collateral attack is that the only gap that louisiana needed to in full to that region is their asian position petitioners if not challenge to that here and it would be a waste of the court's resources to address this claim when the relief the court would likely afford would be to  agency for further explanation which the agency has already provided to petitioners and petitioners didn't challenge that decision a explained in that reconsideration response why it was reasonable not to require further reductions from the one source louisiana identified big cage into and why it was not necessary for the state to go back and revisit the screening process the screening stage that it already conducted when it submitted its regional haze plan and reasonable progress analysis back in two thousand and seven so it's our position that this is time barred this issue is waived but even if the they read into about that e t a it was requiring the state to go back to this earlier stage and redo an entire lengthy stage of its analysis which it simply defies common sense that e p a would make such a with some of my remaining time i'd like to rephrase the context of the industry challengers challenge to the subject of our screening process it's important to emphasize two things here the role of step two in the overall process for bart and the discretion afforded to the state at this stage i've discussed the discretion that the states and joy but i'd like to spend a few should be interpreted and implemented into two thousand and five and national rulemaking establishing the bar guidelines although this portion of the guidelines is not binding industry offers no valid reason why louisiana should be forced to depart from those recommended protocols and given that statutory language e p a decided back in two thousand and five that the analysis should be designed to assess the maximum potential impacts of a source under a range of realistic conditions a wholly different analysis than determining what that source impacts might be measured on to be on a given day or a simple average of impacts over time the purpose of this screening stage is that is to determine which sources should be assigned emission limits under bart at the next step step three which is what environmental petitioners challenge that's where emission limits are set and a fine tuned analysis takes place than that looks at it all the high factors as we've discussed and if the source is intact and visibility is relatively borderline which it's not here your honour's these sources are well above the higher of the two thresholds looking at both types of modeling but even if it were a relatively borderline case or if the controls wouldn't be cost effective or create very much in the way of disability benefits that would be reflected in the choice of part for the source and it's important to note that for practical reasons th industry hasn't challenged the choice of part they're simply challenging the screening process i'd like to also briefly touch on to where you were you speak to your complaint of the strange explanation in one paragraph which was inadequate in failing to examine explicitly all of the reasons instead of just all of the factors and judy just saying that the factors were were satisfied what is the case law tell us about that in how should we address that my question is though whether whether the staged explanation is is adequate in terms of what is required it is a very short explanation it does not go into the factors and the that's articulated it by the supreme court in alaska department of environmental conservation which is to look at whether the agencies path may reasonably be discerned from the record and e p a used a similar standard here when they looked at the entire not just that paragraph to which your honor refers but they looked at all the information that was included with the submittal and determined that it met the minimum requirements of the act submission that it was adequate and satisfy the act this is there enough meat on the bone here everything that's that's isn't that a very light difference we were give to the thinning it would be a lower level of deference in the deference due to e p a s judgment about the appropriate use of the cowpox methodology which is a highly scientific and technical judgement so in terms of degrees of deference certainly e p a is do it at the highest form of deference under the case law to its judgment about the appropriate methodology that difference would we still reach determination i'm sorry even if we didn't believe there was any difference appropriate for that determination would we still reached the the answer that it was adequate certainly honors the support for the cop model that's outlined in our brave i'm not talking mcalpin talking about louisiana's analysis in the whether it's good enough i've met questions not before the court today i'm not sure i'd be prepared to take a position on on whether it is before the court because the sierra club says it's not it's not detailed enough well in terms of whether e p a is decision was reasonable we believe that even without deference that we encourage the court to find the e p a s approval was reasonable contribute to any visibility impairment and so in other words the conservatism of cow cough is a feature and not a bug this is why the bark dot died lines dictate that we use maximum twenty four hour emissions read switches which is something that industry consistently ignored and failed to do we're predicting the potential impacts of a source on visibility when that source is running at a steady state during meteorological conditions that are most conducive to the formation and transport of visibility impairing pollutants this is sort of like a perfect storm of the combination of factors that will cause the greatest impacts e p a explained why it made that policy choice in two thousand and five in the bar guidelines and again in numerous part  and subsequent years not only to the e p a to scalp up partly on that basis but also made adjustments in its protocol to adjust for any overly conservative bias in the model so instead of looking at that day of the three hundred and sixty five dollars days of the year that had the greatest visibility impacts e p a looked at the ninety eight percent oil highest day so that effectively cut off the tail of the distribution so any outliers it's about seven days of the year they get ignored under that analysis so e p a made that decision using its expertise in scientific and technical modeling to correct for any overly conservative bias in the additional support for e p a s position being reasonable and just one other question of the original highways rule which requires these ten year periods why wouldn't the night of the two thousand and eighteen apply different here and so maybe i'm missing something cause you're the environmental people but unfortunately i don't have that information i'm standing at the podium but i would be happy to discuss with agency and provide supplemental briefing on that issue a itself has held or has determined in the context of the final curtain call in texas that that that period extends the window for the planning period this is the new argument that industry raises that bart is somehow moot is simply not true the clean air act requires best available retrofit technology of some of the oldest and dirtiest sources in the united states in that part of the reason was that those sources had been grandfathered under the one nine hundred and seventy seven dollars amendments to the clean air act and so the congress intended at some point that these old highly polluting sources would someday come into compliance with more modern day standards and moreover it's a one time obligation and so it's not a moot one if we see if this court affirms the determination louisiana or u k will look at bart specifically again i would like to also th circuit has held in the core such case which we which we cite in our brief that where an agent or or state lacks the expertise to evaluate s conducted additional modeling because its position is that kalpas unreliable it raises serious questions about the reliability of kalpa when e p a really reviewed that help of model or the chemical modeling that the state of the state that entergy performed pardon me it found so many errors in the came ex modeling that it was compelled to rerun the modeling using the correct parameters as required by the bar regulations and e p a is can mix modeling corroborates and confirms the  modeling that shows these that these units are subject to board and i would point out again we do in the briefing as well that energy's own initial kalpa modeling shows that these units are in fact subject to board in that they they cause impairment above the regulatory threshold of contribution the planning period issue i think is a good reason e p a didn't cite the regulation that you just heard from the environmental groups and that's because our understanding of of that a plain reading of that is that it did not extend the planning period it extended the and at the end of two thousand eight hundred dollars still hold i believe e p a also may have extended the planning period specifically with respect to texas to address some of the issues that were raised but it did not broadly extend the planning period what guidance do we have on the level of explanation that has to be given by the state the statute and the regulations simply say that the state has to consider the five factors it doesn't dictate any particular level of explanation so i state's explanation is brief its past can be clearly discerned it's clearly says it considered multiple control options in admitted that additional visibility benefits would be available through the use of the dry  non air quality impacts that were negative from using the scrubber and with respect to the five factor analysis as a whole both e p a and entergy didn't just submit a bunch of information we submitted analyses of the five factors and the state's narrative explanation is perfectly consistent with both of those analyses particularly when you consider the deference that i think everybody agrees that the states in determining the weight and significance to give to each of the factors there's no rule or statute that says you must select the control that reduces visibility impairment the most the most of must select the most cost effective control there's nothing along those lines and it's perfectly consistent with the statute in the red for a state to select a control that does produce material visibility benefit like the low sulfur coal here instead of a control that would produce more visibility benefit but has a seven time greater annual cost that's perfectly rational and you can glean that readily from the state's analysis here and i hope i might have a couple minutes just briefly to address the of the reasonable progress challenge and i just make two brief points on that one is that i think at best sierra club can argue we weren't exactly sure what u k was doing back in tw with respect to selecting sources to have reasonable progress controls we think it was clear but i think that's the most they can argue and if they were correct that there was some lack of clarity about what e t a did in two thousand and twelve then they should have for review it back time and asked this corner or another court to clear up the lack of clarity and i would think the evil pitcher line of cases from the d c circuit is quite relevant on that point which is briefly to quote it says petitioners who delay filing requests for review on their own assessment of when an issue is right do so at the risk of finding their claims time barred i think that's exactly what happened here and they denied fourteen of that case the d circuit says if there is any doubt about the rightness of the claim petitioners must bring the claim in a timely fashion or risk being time barred the final point on that just goes back to the reasonable of the planning period issue which is the the relief is being requested of selecting new sources to be controlled for regional progress that is completely moot with respect to the relief they're requesting because the planning period to do  and in the next planning period which is now under way in which will result in a new step by two thousand and twenty one the state will have to go and do the exact same thing that sierra club wishes them to do it will have to look at dollar bills it will have to look at every significant source in the state and will have to do the research will progress analysis so it's both effectively moot and they're getting the exact relief that they want presently that's that planning process is now underway for the tw into the deference that e p a is entitled to here and in that case the court recognized that the agency's bald assertion that a sip does or does not meet the requirements of the clean air act is not entitled to heightened deference and in it's only entitled to the level of deference that it has the power to persuade the thoroughness and but the liberty of its reasoning and i would suggest here that e p a is record shows that his reasoning is completely incoherent as counsel for e p a recognize it conducted its own analysis which it deems accurate and using the metrics and methodology is required in the bark regulations no factor weighs in favor of low sulfur coal as the best outcome and it's not just a matter of which controls we prefer the regulations require section roman numeral for you for require states to impose a ninety five percent reduction rate unless there's a careful justification for another limit and here the record is devoid of such a such a limit i do want to before i before i run out of time come back to a couple of the reasonable progress arguments that have been made on reconsideration we did not challenge the reconsideration because in denying our petition e p a itself denied the petition in part because we raised the arguments with sufficient specificity in this record there was therefore no reason for us to challenge a different determination this is not a collateral attack on the two thousand and twelve will e p a has not pointed to a single provision where it's approved any such determination that big cage in two is the only reasonable progress source and in fact the plain language of the rule is inconsistent with that reading again e p a couldn't approve the long term zation that louisiana relied on in two thousand and twelve was in fact based on initial and auctions expected from care that rule is no longer in existence as a as a result there is a gap in in the states plan it does not have an approved it did not it does not have an approved long term strategy and cannot correct that defect by simply providing additional explanation why believes the state doesn't have to comply with the statu i'd also like to point out on that the collateral attack issue i think the more apt impertinent authority is this kicks this court's precedent in the el paso case which provides that an objection is a collateral attack only when a reasonable person would have proceeded very serious risk that the previous rule says what the agency now says it says in the previous rule says no such thing and i would go back and look at that if i would encourage you to go back and look at that because within the proposed who the technical support document in the final rule in two thousand and twelve e p a says no less than seven times specifically that louisiana will have to go back and evaluate whether emission reductions from any source  not are needed to make reasonable progress towards eliminating heyse louisiana and e p a failed to do that and that directive again comes not just from e p a is disapproval of the two thousand and twelve will it comes from the statute itself which requires every reasonable progress plan to include every part of the regional haze plan to include elements to address the reasonable progress requirements of the act and then finally i do want to point out one inconsistency industry council for industry petitioners mentioned at the outset with respect to the visibility visibility problem of the part determination and suggested that it was  visibility improvement from any controls under its view of the modeling under any can there's no visibility improvement from any controls so that that is just sort of a red herring your honor your honor just briefly to respond to that last point in them to turn in my rebuttal where we said there were no into suspended visibility improvements st of all that was a very early stage in the process when it wasn't clear what modeling was going to be used in our view was that was unreliable it wasn't producing any showing of visibility harm to begin with so it wasn't centrally as the process involved in the models became clear we of course took the position that which  with that there were controls that would create visibility improvements once you accept the validity of the models turning to my rebuttal point on whether whether nelson and brame should have even been subject to barge in the st place  my friend from e p a opened up poor her argument by quoting and saying the e p a has found to the effect quote generally that it's generally acceptable to use calculus for larger emissions over three hundred kilometers for sources with elevated stacks i think it's important to point out that that quote is in this rule it's not something e p a has said before and went e t a just declared that in this rule it didn't explain how any of the past rule makings actually were cases of major emissions or elevated stacks and it didn't explain why in this rule these sources counted as major emissions with elevat stacks if it had done some of that analysis we might be in a little bit different position all you get it is made that declaration and then it cited the two past instances where it had used calcutta greater than three hundred kilometers one was nebraska that was so old that there was no other option besides kalpa at that time i didn't hear you dispute that the other was south dakota where correctly the e p a notes that work with south dakota to create a specialized help up model that addressed the shortcomings again if they had done that here we might be in a different position not not to my knowledge and certainly d p a didn't put it on the present rulemaking and they didn't mention that in their briefing to this court they also mentioned this morning that texas ip in two thousand and nine used used more so i think my friend from e p a was correct to point out that with respect to my friend from the sierra club i should say was correct to point out that the bart determinations that were made in this  planning period are designed to be in place for a long time so the use of calcutta in this planning period to establish part has significant going forward on consequences i think that's different from the point i was trying to make in my opening argument perhaps in artfully about the st planning period that the st planning period has expired completely and irrevocably with respect to determination of reasonable progress sources for the st planning period that's going to be h telling the e p a that e p a can never use calpol for states can never use help of the minimalist holding i think is that e p a needs to explain why it can be used for longer than three hundred kilometers and that it must adjust its model if it's going to use it don't dispute that of course it thinks consider all the appendices and information including that provided by the e p a but what it cannot do under principles of federalism and the structure of the clean air act is substitute its own methodology for a methodology that the state