face numbers fourteen days two two seven four and fourteen days two two seven five united states of america and the sierra club vs d t e energy company and all argument not to exceed fift requirement for the regulation that quite simply the fails to comply with the regulations here so important is appropriate most critically the company did not follow the rules for the and those rules say that you can only use the demand growth inclusion if there are two requirements one of the critical requirement is that your predicted emissions are unrelated to the project year by contrast the projects and they looted the entire increase when we asked why in discovery these that it was based on the belief that projects like this can increase emissions that's a legal opinion and it's wrong as a matter of law here is summary judgment the court must treat as true our evidence showing that e t s own analysis shows an increase related to the project project is a major modification at the time of construction and those chords evolve found that reading is compelled by the statutory language itself and its course prior to new found the same thing that the pre construction project with a major modification at that in your honour's my plan is to use my remaining time on three points first why does action is not second guessing and of the prior any and second the that it's not second guessing to enforce where authority fails to follow the rule here the fail to follow the regulations that equivalent to new projection at all and there's simply nothing to deafening liability the the alabama power court that we fight in the brief at the latest example of that series of cases and that standard is perfectly consistent with this court's prior opinion it's court phrase the standard projection must be reasonable otherwise the regulation which lay out in detail how to do a projection are simply we  prescribe exactly how to perform the demand growth analysis and so left it implicitly to the store and that's wrong as a matter of law first the regulation do you say how to apply the demand growth exclusion there's two parts to it you can only excluded emissions that the unit was capable of accommodating before the project and are unrelated to the project second it's an established principle of ball that enforcement cannot be defeated on the ground at the agency failed to put forth a more specific regulation and that's the court to mark a third this court in the prior anion growth exclusion also applies to click ability based on the construction data even if there was an increase in pollution after the project stored could claim it was the result of demand opinion it sounds like we could look at virtually any argument that says that the regulation wasn't complied with such as failure to explain or not take into account all the different factors i just wonder how that how consistent that is with the with the with the tenor of the previous opinion which suggested that this is supposed to be sort of a basic look to see whether the basic requirements of been gone through now if you take the arguments that you're making it seems like i don't know i don't know what would be left to challenge the the exclusion or to challenge the projection if those are all the bases that you would normally challenge of that sounds like a regular full fledged review of the determination i grant you that you know our standard may not have been crystal clear but we were we were trying to figure out a way in which the process could go forward without turning it into a full fledged pre pre activity projection review but the way you're describing the arguments you're making seem program and we agree there's no prior approval here there are whenever you whatever you identify the need for a private or a prior approval they better do it completely and they better get it approved by you or they may not get  earth has the ability to go forward so there's no prior approval in and for ninety nine percent of the project there's not going to be a problem in the rare case where  that source is projections does not comply with the rules can step in and i think that that's the holding of the prior opinion and i think the prior opinion distinguishes between being able to step in if a shows that would be the difference between the standard that you would apply if there were before the fact review and the standard that you're saying the in some sort of basic way you had to go through that through the effort of making a projection and complying with the basic requirements of the rules to make th projection but we're not going to require that it be reviewed with the same degree it would be required if there were prior prior review what we were rejecting but now i'm i guess i'm asking for some daylight between what you're advocating that we look at now and what we were rejecting in the previous opinion and you just say well we don't have to worry about it but i'm still worried about it and that's project with failure to follow the regulations either case there's nothing there's nothing to second guess there and so here's a story that didn't follow the regulation you can see that based on their own analysis and so there you know there's nothing to second guess here time has expired just to let you know thank you please the court i would like to talk about two things number one there's nothing to second guess here d t e simply did not do the required analysis and number two this is still alive controversy e pushed off putting on the required pollution equipment for years resulting and hospitalizations and deaths that could have been avoided if t t had followed the rules i mean issue of second guessing instead of following the rules t simply assumed that all of its projected annual post construction emission could be disregarded on the basis of demand growth at virtually the same time d t c was telling the michigan public service commission that expected demand to decline on its system but d t wants the court to it but bt wants the court to ignore this blatant and consistency claims with an exercise of engineering judgment this isn't about a battle of the experts or a fight over how much to weigh certain factors there is nothing here to second guess d t e fail to undertake the required analysis in order to take advantage of the demand growth exclusion this is the teeth pattern and practice for g t e the demand growth exclusion will swallow whatever emissions increases follow up construction project every time and the emissions increases are talking about aren't small d t e wiped away a huge amount of pollution not just a portion of the expected increases but all with no analysis contrary to the rule on the matter of on the issue of why this matters and what we are asking for d t has a pattern and practice of misusing the demand growth exclusion the complaint before the district court has six additional claims with the same general factual scenario except emissions have all gone up post construction if it's violation of the regulations isn't reviewable then d t e will continue to overhaul its aging coal units without the necessary review and permitting in this case d t successfully pushed off and stalling the necessary pollution controls for four more years each year represents ninety premature deaths in total social cost of five hundred million dollars if t t had installed control when it was supposed to in q two thousand and ten they would have eliminated about eight thousand tons of nitrogen oxides and twenty six thousand five hundred tons of sulfur dioxide pollution each year and the remedy isn't simply redoing the projection the remedy and the usual case would be to require new source review and permit in here the remedy is this is a civil penalty and mitigation projects to address the air pollution caused thank you for your time thank you points that are not in dispute first row two emissions has decreased in each of the five years following the project second  observed in its earlier decision the company performed the emission calculations and follow the pre project emissions notice that was timely and sufficient and let me stop there to comment on the points that was made in the earlier argument the allegation that d d did not perform the required analysis the district court found that the pre project notice that d t e filed contained a table with all relevant calculations in the required specificity that notice letter which appears at docket number e c f one sixty six dash three attachment to that pre project notice letter explaining that these relevant calculations were produced using promo sophisticated model analysis contained in a report filed with the public utility commission called the twenty ten public power supply cost recovery and you are reporting that contained the analysis that led to those projections those projections projected five for each of five years after the project in four of those years they projected a decrease in one of those years projected an increase for that one year explained in the pre project notice that we excluded as we are required to do by the regulation from the promo projections that portion that the unit was capable of accommodating and that were unrelated to the projects it included the information with respect to what the unit was capable of accommodating during the baseline period and explained that the projected increase was unrelated because emissions and operations fluctuate year to year in response to a variety of factors other than the project then in response to requests for further information from  e provided two additional letters with additional explanation which appear at docket have number one sixty six dash through a attachments three and four and then that additional explanation of these calculations explains that the projected increase in twenty thirteen was due to then expected increase demand on the unit as a result of myriad factors most importantly an extended outage at companion unit monro one in order to tie in advance pollution control equipment on that unit because monro one was going to be offline and not generating for a significant portion of time during twenty thirteen monro two had to pick up that generation hence the projection of more operation and more emissions not because of the project but because of the added schedule then the company further explained that we we ran the sophisticated model eleven and we had run it in twenty nine twenty zero nine both with the project and in both of those sets of runs we projected no increase in twenty thirteen because explanation well i was taking was using the demand growth exclusionism required to by the rules and that leads me to the third point as to which there is no dispute as the government says at pages twelve and thirteen of its brief the emission projections in d t s notice were based on sophisticated computer modeling using exhaustive inputs and those exhaustive inputs included things like future outright coal prices demand and many other factors as the government recognizes the government's only dispute with the company is that the company should have exercised its judgment differently to make an emission projection that contradicts reality the district court correctly found that there is nothing in the specific instructions of the regulations that dictate that a company make projections that defy reality now in deciding the case below the district court explained that its instructions on remand were to determine whether the company complied with protection regulations and in doing that the district court reviewed the projection regulations and explained that e p a does not contend that the company violated any of these regulations rather they dispute the extent to which the company relied on the demand growth exclusion that the court found is second guessing which is prohibited under this court's earlier decision now the government says first did not consider all relevant information making its projection but that was the purpose of the sophisticated computer modeling and the exhaustive inputs used by d t e in making those projections second the government says that the company improperly excluded from its projections emissions increases that were related to the project but as the district court found and as everyone has to concede the company specifically addressed the causation element of the projection regulations that is the demand growth exclusion as those regulations require get exercised its engineering judgment to exclude the missions that the unit was capable of accommodating during the baseline period and that were unrelated to the change this rule says the operator shall exclude the missions that the unit was capable of accommodating in that are unrelated to the change that's exactly what d t e did based on it sophisticated computer modeling and exhaustive inputs projections of the future are by definition uncertain and that's the reason for the reasonable possibility of causation determination requires the exercise of judgment which is second guessed would turn this program into the prior approval program that this court rejected and of course the company's projections are not verif bly accurate the only correct projection now is one that conforms with reality and that reality is that the missions did not increase after the project due to the project and in fact emissions did not increase for any reason they decreased and they decreased significantly so on some of the district court properly found based on undisputed facts that the company's projection complied with the specific instructions of the regulation and it doubt our facts say that detroit edison's analysis showed an increase related to the project and here is summary judgment that can't be tossed aside i want to take issue with one thing mr brown ale said he said produced was output from its own modeling and if you look for instance at the end of two numbers they show an increase from the baseline in two thousand and eleven two thousand and twelve two thousand and thirteen saying that the rules don't apply then you no longer have a pre construction review program and that's exactly that's exactly what the teasing here that they as long as they can come up with a declaration from on reconstruction aleksey and for that for that to happen we need to be able to we need to be able to move forward on a case like this where d d e is the lead thing on their own face so that they do project that's something that is inherent in their projection is that they did computer modeling they faked in the effect of the project and they showed an increase and excluding that increase in entirety was a violation of the rules in march of two thousand and ten when it was done the fact that emissions went down after the project don't show that the projection d t e made before the project or that that projected increase in a mission was unrelated to the project