sources to be regulated we have brought this case to to the citizens who statute of the clean air act which provides both for statutes however are clearly mandatory they say the e p a shall list from time to time or revise the west from time to time the well they're not saying that they have the discretion never to do it they're just saying under this statute you can challenge you could file a rule making argue that their actions are arbitrary capricious and then you would you could challenge it that way there just complains about unreasonable delay and then says something to the effect of you need to make an endangerment finding at some point and you haven't made it in danger of finding it's another thing it's another thing to say what you need to do is list because s duty to the to to make their finding and to to revise the listing from time to time and in the course of said that time time is a perfectly acceptable we believe that the evidence is so clear we guarding the endangerment from these pollutants and from these sources that the district court could find if we ninety case that seems to be the most relevant is american lung association versus riley and in that case the court said that it's for the district court to determine if you're a reasonable stationary sources in norm these two are the supreme court so that the court can only compel agency action if congress has given you a specific unequivocal command that you see it with no discretion so if the court has given you such a command public record and e p a has not yet acted upon them and there's an active sound reason i ask the question is suppose hypothetically there had been a series of requests for rule making and nothing happened for two decades and i just want to be clear the argument e p a makes is well you can file a moment so the vasa is question i just want to be clear that if a rule making has been filed a petition for room leaking involving these same pollutants and this same same stationary are rule making pending and he hasn't done anything i agree with that judge writers they they do make that point in their brief they did not make that allegation the complaint and since this was dismissed on twelve six what we need to look suppose hypothetically the scientific community as a whole and come together and issued a report saying we think it's essential that the administrator list these pollutants and compulsion of the agency to compel us to perform the duties of the complaint alleges and here that duty is to less so the plaintiffs want to explain to the district or why the scientific evidence here justifies listing but puts in the hands of the court a decision about endangerment but the statute specifically leaves to the administrators judgment under both section one way and section one left to say is if you take out of the field of vision the complication of having a different discussed some things in that case that were relevant only prior to the one thousand nine minutes but after discussing that question the court went on to describe different kinds of a reasonable the way places that might come before the deals one of those was the agency's delay in that the agency act but then we went on while the earth give the agency even greater leeway i say things he says well we don't have the staff to do it and we have decided on different priorities that's then they were required to file a petition for a ruling that was the purpose of the amendment to the citizen supervision so a party would not need to file and go through all the of the seizures of the petition for rule making wait how many years really have he not to act and then have to file suit and then i get all that litigation the purpose of the amendment was to allow a plaintive to take action directly where there is a clear violation of a reasonable delay and that's what we have here  i wasn't quite sure of what mr carter was saying about summary judgment but it seems to me that that's what we're we're asking for here next summer just early but but but for the the judgment day is in the statutes is a fact a judgment not a policy judgment and that's why it's appropriate for the district court to make that finding and it's not the kind of discretion or judgment that would preclude this from being a non discretionary action ok i think you made that point in your opening remarks any anything you basis on which the court made that decision that they were looking at a time certain deadline have been reported to have district court jurisdiction if not it would be in this court that's not the case anymore so i think that