we will move now to the last case on the calendar which is the natural resources defense council inc vs james perry council for that case can please come forward they please the court thomas byron from the justice department here on behalf of the government the district court here and the plaintiffs argument misconstrues the error correction procedure that the department of energy adopted that procedure is intended to regulate the private comments from the public the input from the public in the form of requests for correction of errors it was not intended to constrain the agency's policy authority or its underlying discretion to determine prior to publication whether to promulgated a regulation that fundamental error led the district court here to enter inappropriate relief the court entered  injunction compelling the publication of particular substantive rules that the agency had not adopted that was improper under any of the statutory authorities that the plaintiffs in d it's not appropriate under the foyer because those rules had not been adopted they're not being enforced it wasn't appropriate under epcot because epcot doesn't provide for the courts to  intended to constrain the agency's discretion at the last minute to basically yankee rule but otherwise been fine if we thought that it in fact the agency committed itself to you know basically impose the non discretionary duty on itself to go stuff in the federal register but indeed but i'm just saying if we were to reject the two merits arguments you raised here is there any issue you have with the form of the judge we just heard that so if i may judge about for just sort of turned i think those questions are related and so it's hard for me to differentiate them in quite the way you've suggested so let me see if i can try to i don't want to address the voice of your argument so if you want to address first the nature of the duty that's fine and then you'll just just tell me i'll get to this other point later that's my new your honor let me let me see if i can address both together if i may so that one of the problems with the injunction is i think your question just highlighted is that it's extraordinarily unusual for a court for article three judge to compel an executive branch agency to publish a particular regulation we're not aware plaintiffs haven't cited any other example like that it's not just that that's so unusual but the reason it's unusual is that it contradicts and contravenes the fundamental principles of the separation of exactly right and i'll appoint the court to southern utah wilderness alliance which in which the supreme court said where a statute requires an agency to take an action that doesn't specify what that action must be that the courts publish before you can before it goes into effect because publish means it means it goes into effect well it means that it's promulgated  again ok so so you in order to promulgated a regulation properly you have to do this this this this and so they've done this this this this and then you say that they don't have to promulgated the regulation now that's all seems strange so let me turn to that statutory scheme in africa because i think that's what you're referring to now is not the regulation in europe or action procedure but the requirements nothing in the statute requires the agency to adopt any particular energy conservation standard in a regulation right and so that's fundamentally what this case is about the plaintiffs here have not  kind of relief that's contemplated by a three of the citizen suit provision which they have by the way in our d c in particular has brought suit over the decades seeking that kind of relief to compel the agency to take some kind of action to get some regulation without specifying what that regulation says they haven't sought that kind of relief here and that's fundamentally the problem with this case and i think it goes back to judge watt for to question to the nature of the relief that's contemplated both by  its compliance with deadlines which is one of the things plaintiffs mentioned here but they have not sought that relief here and what's not appropriate is for the courts then to superintend the content of the rule and that's what the district in appropriately but i let me just toss this because i think you're going to agree with me if the air correction rule had said in very explicit terms right we're going to adopt this little little tweak to the normal of common procedure we're going to allow for this correction of typos but hey public we are going to commit to you all we're going to commit to the world that once the rules become finalized and we open it up we put it on the website we open it up for the correction of these typ s we will not withdraw it and in thirty days or forty five whatever the time specified forty five days ago we will in fact publish it in the federal register no ifs ands or buts i assume that if the rules somehow said that in those clear terms and then the agency refused to do that and we could say hey you know you committed yourself to publishing the damn thing go we're ordering you to do it you wouldn't object about it so just what i did want to just test the premise a little bit or contest the premise if i may i'm not sure it would be appropriate for an agency to do what your hypothetical suggests which is to bind future agency decision makers in constrained their policy discretion that that again goes to the fundamental statutory i'm sorry constitutional separation of powers concerns that we've raised but let's assume that it was proper for an agency to do that the nature of that regulation would i think as i think your hypotheticals just look very different for example it would address the policy constraint that the plaintiffs have presumed that's not addressed here it would say not only submit to the office of federal register for publication but not but actually require publication and not permit compliance with the office of federal registers own regulations which permit withdraw after submission for publication that's what the footnote one in the may two thousand and sixteen preamble makes clear was not disturbed that office federal register authority to oversee and superintend the publication process which includes its own error correction and kennicott copper the d c circuit made clear that that error correction is not merely for this narrow type of error but also for substantive correctness well that your premise then is that the publication is a policy decision and i'm wondering whether that is is so i think so whether it's simply a ministerial thing after everything is else is done so i think the trigger that kennecott copper the sort of the underlying analysis are the underlying background presumptions including the separation of powers concerns that inform th is a policy judgment that right up until in the second circuit slattery cases to make that clear right up until publication or it at least the day before publication when it's open for public inspection there is a continuing eligibility for the agency to make a different policy judgment so you're making now a different policy that this is analogous different policy judgment when you say we're not going to publish was made before these are changing the policy so your honor the agency has not yet made the fundamental policy decision but it hit it retains the authority to do that and what the district court did here was to interfere with the exercise of that policy joe if you're going to change it then you have to go through the part the policy through no just shorter it has not prescribed so the second circuit said that prescribed is equivalent to publish we haven't taken issue with that we think it's significant in this context it has not been adopted prescribe problems promulgated it has not it is merely contemplated regulation at this point the fact that it was signed has no bearing on this that's what kennecott copper makes clear same with the slattery cases the and let me just turn if i may to professor o'connell's article which i think addresses why this is entirely proper and it's there's nothing nefarious or or inappropriate about an agency making a judgment at any point in the process not to continue the rule making that it has undertaken and that go that process continues up until the point of publication she makes the point that presidential had and a stray sions going back many decades now have made that judgment upon taking office not just changes in parties but new presidents even of the same party she pointed out she also makes the point that it's not just a change in presidential judgment that we're not going to publish anything it's already through making the judgment yes your honor making the judgment that anything that even has been submitted to the office of federal register should be was drawn for contemplation by the new policy makers who are politically accountable so and not just pull presidential actions and changes of administration she also points out that congressional actions have changed have caused agencies to change course judicial decisions have to plaintiff's argument here would preclude the agency from taking account of a judicial decision if this court were to have ruled in that forty five day window or what really amounts to about a one hundred fifteen day window the way of the way it would play out if this court had ruled on the agency's authority under theory would preclude the agency from taking account of that decision prior to publication of the rule that can't be right just as it can't be right for example that the agency is precluded from taking account of a monumental in the agency should still have the opportunity to address that before promulgating the regulation i want to also point out that the supreme court in southern utah also differentiated will from shall and made clear that will is think i don't know whether it would be improper i think it would raise concerns i don't think it's hypothetical i think it's the very argument they're making so you're saying not only did we not intend that but somehow it would be you said it was celebration of power standpoint  right up until the time of publication and the idea that that authority can somehow be constrained by either a prior decision maker a prior administration is something that we have encountered before regulating public input so all i want to say about the possibility of an agency trying to do something that plaintiffs have suggested was taking place here but really was not is that it would be unheard of it would be extraordinar put forward what i think the plaintiffs say on this point which is just that delay here is a big problem right and there needs to be certainty on the industry's part yes and so why isn't why should we read this as an agency saying look we recognize that if we didn't adopt this air correction procedure the thing would be published today no your honor i don't think that's right just if i think it's right i'm going in the wrong direction i want you to correct give me some course correction but if we didn't have this extra little layer of review we can see saying look we would have finished our substantive rulemaking process if we just left things as it is in the ordinary course and this thing would be published next week a month whenever the day of publication would ordinarily occur and we recognize that that's you know and there's a need to get the rule out there quickly we we are going to add on an extra layer of delay which you've said i was thinking forty five days but you said it could be up to a hundred fifteen days and we recognize all of the harms that that can introduce into the process so we're going to assure everyone as i said earlier we commit irrevocably to publishing this thing right notwithstanding this extra of delay and that's the reason that we used will in the in the sense of show we really did want to constrain our ability to withdraw at the last minute because of all of the problems that adding this extra period of delay would would otherwise cause so why is that just not a reasonable way to construe that so two fundamental answers your honor first of all the agency took account of the concerns about the way principally in order to preclude  public comments from causing undue delay when the agency was otherwise ready to proceed that was the reason the agency pointed to the concerns about timeliness and avoiding under delay not in an effort to constrain its own authority and s secondly that goes to the fundamental point that it would not be these rules after having been signed would not automatically be published there remained the step for the agency decision maker to submit them to the office of federal register to allow them to go forward without withdrawing money but that would happen really quickly would not necessarily your honor so it could happen quickly if the agency was ready to do so but again the agency could have waited now all of this  just show to your questions earlier pointed out that there are some scheduling deadlines in the statute right so if the plaintiffs thought that the agency was unreasonably delaying the remedy would be as it has been in other district court cases to have a consent decree negotiated in superintended by a court to ensure the agency takes action not that the agency publishes any particular rule that it had contemplated in the past i do want to reserve some time for about a cliff and then i'd be happy to  good morning or honors in fine on behalf of citizen plaintiffs plan to split our time by reserving five minutes for mr perry from government claims i'd like to begin by pointing out that defendants below conceded in the hearing before judge sharia that an agency could find itself in this way by committing itself to publish a particular rule so the only question here is whether the error correction rule actually did that we believe the text of the rule makes that clear whether the error correction rule did what whether the error correction rule includes a non discretionary duty to publish a rule to submit a rule either as posted or corrected those are the two options that the error correction rule leaves the agency and the the rule  answering briefs and it's never addressed in either reply the court there this court applied mandatory language in or in a regulation and it said we don't know why the agency bound itself in this way it said this court held regardless of the rationale for the regulation nothing justifies abandonment of the general rule that the plain language of regulation controls and in any event here the agency did have good reasons to bind itself in this way first as judge schroeder pointed  out the agency exercised its policy discretion before posting these for public before posting these for its proofreading process that's clear s c r one forty six the agency says that it does not post these until it has completed and made all of its policy choices the agency then made a further policy choice that it did want to commit itself to publish these for some of the exact reasons your honor positive first it's true that without the air correction rule these in fact would have been  published it takes no more than two weeks in the general course for things to be published there there's a walk in cooler is rule that was also withheld but eventually published later on here and that took no more than two weeks from signature to publication  and so that your honor pointed out mean that the policy agency's policy discretion doesn't exist in a vacuum it's there to carry out the statutes that they're delegated to administer so here congress in ep it did it for the benefits of these energy efficiency standards and it did it for regulatory certainty is the backsliding provision in the deadlines are there for these purposes that's why the agency found itself in this way first it had already determined that these standards were in the public interest they have enormous public benefits here the agency has estimated it would save consumers and businesses up to eight point four billion dollars over thirty years the agency has never disclaimed that earlier finding so when it when adopted the air correction rule it balanced its desire for accuracy with a desire to avoid unduly delaying these significant benefits and also did it for regulatory certainty when the agency posts these final standards for  congress was unhappy with the history of delay that the agency had so congress enacted this to ensure that there would be continually improving efficiency standards and congress enacted the anti backsliding provision to preclude subsequent administrations more stringent than the last right they can't go back on after they make that point in our determination they have two years to come up with something that's more stringent so so i guess why are you so so what if they had don't have to publish these particular rules it's not like now they can just you know completely regress they're going to be not only are they committed not to backslide but they have to come up with something that's more stringent going forward maybe it's not going to be quite a stringent as this i suppose that's the worry but well you are so the two year deadline for amended only applies to amended standards so that applies to the commercial packaged boilers rule here but it doesn't apply to the other one uninterruptible power supplies which is the battery one one of the four here so they would be in violation of the statute goods but not for the other two so presumably the agency could leave these these final standards that were posted almost two industry that you know these letters in the supplemental excerpts of industry that in good faith relied on these final standards that were posted on the agency's website it would continue to injure them so council me as your quick question so the agency puts out this for public comment the public comment comes back in and they go there's something here that is substantive and if we promulgated these rules we publish this is going to cause more harm than good your contention is that a district judge can make the decision that no they're wrong it's not going to do more harm than good i'm going to order them to publish that's your that's your view well so so first your honor that the notice and comment process occurred well in advance of these final standards being posted so these did undergo notice and comment they went industry and the not concerned about these sorts of problems that your honor is positing that's why it rejected interveners request to make us reconsideration process if they had been concerned about those it would have granted that request and allowed their allowed interveners or  why would the agency want to constrain itself like well too bad this is actually going to be disastrous for the environment or whatever but we have to publish it because we committed ourselves to that why would any agency want to buy itself and well the agency if envision very narrow in streamlined so it didn't it didn't wasn't concerned about these sort of you know extreme hypotheticals occurring in that brief forty five day window the agency here and this guy does not occurred in this case clearly the agency has never argued that it was if the agency now you know now is concerned about those wild hypotheticals it can amend this rule moving forward and build in that additional process for reconsideration but it did not do that in this rule that's clear the problem is this is the united states court of appeals this isn't the district judge like me making a decision so whatever decision comes out is not just going to apply here it's going to apply across the board so i'm just wondering whether the district judge would simply be applying the regulation as it exists if this hypothetical is a real concern the agency can amend this rule moving forward to take care of it that's not at issue in this case so this court doesn't need to be concerned about that here and in  those in those cases i mean first of all if there if there was some sort of catastrophic event i don't know that you know the plaintiffs like us would actually bring suit to force the agency to publish a standard that had those sorts of problems and in terms of the scope of the injunction here your honor defendants point to the language and sue assume is very clear when it discusses that it's like that if there is a duty but the statute leaves discretion to the agency the court at that point can only order the agency to act but not to take a particular act but here the duty that we are seeking to enforce is that the agency will submit for publication these final rules either as posted or corrected that's what the agency found itself to do and there's no reason in this case why  decision shouldn't be for well why doesn't the i guess what i was expecting given your insistence that what was intended by use of the word will was to you know this going to binding of discretion that otherwise would exist i guess i thought that something in there would be some mention of that in the federal register materials that we have that there just simply isn't and that's trikes me as telling because it sounds like you agree that this is pretty much on precedent we don't really know of any other agency that's ever done would go back to sax again and really encourage your owners to take a closer look at that opinion there the court again applied statutory i'm sorry mandatory language in a regulation and that agency shall do x despite its discretion not to have done that  previously and the defendants in that case argue the same thing they're arguing here which is if we were going to disclaim such authority we would have had to say so expressly in the court rejected that argument it said that the mandatory language that it shall do x was enough it says we will not require that an agency articulate all of the acts the agency may not engage in simply to guarantee that mandatory prescriptions are followed but going and going back here to your honor's question here we're not just relying on one instance of will  think the rule actually sets out at the agency was balancing its desire for accuracy with its desire to avoid delay and so it bookended a posting obligation in subsection c which uses the word will in which defendants concede is mandatory with its publication obligation in subsection f word again used the same term will so it's consistently used will in a mandatory sense defendants argue that when the agency said well it just meant to describe what the agency be merely descriptive rather than prescriptive going your honor asked about the federal register and point your honor to a few places one as you are one thirty six says that the air correction rule prescribes a time line in which will eventually publish these final rules your honor defendants have suggested that the rule is merely to regulate the information that comes in but not by new agency in any way if that were correct the rule would have stopped at subsection d it goes on subsection f is the publication obligation where there's with this you know additional obligation that the agency committed itself to just your  view looking at a five is that every time the agency used the word will it should have qualified it by saying something like ordinarily or most of the time are we but we're reserving the right to withdraw the thing like we normally could what they really meant was not only just in the ordinary case but no matter what come hell or highwater we are committing ourselves irrevocably to publishing this thing there would have been some discussion of such a pretty  dramatic departure from ordinary agency practice in the federal register but i do think that the agency's rejection of the reconsideration interveners request that this be expanded to encompass reconsideration that its rejection of that is is first the same reasons why while they're saying is that no we are not going to be obligated to me that's how i read that we are not going to be obligated to review substantive you can file whatever the hell you want but if it doesn't involve a typo we are not obligated to respond to that that doesn't speak to by virtue of using the word we'll we've irrevocably committed ourselves to publish it your honor i would point out that this this distinction between will and will ordinarily is not just in this one place in the text if you go through the regulatory history and read the preamble you'll see that the agency frequently used the phrase w ordinarily when it wanted to be descriptive and used well when it was describing something mandatory so it's not it's not just that one instance and you know there are other indications in the text as well i point you know subsection she says that the agency may correct an error before may correct the rule before publication it does not as judge pointed out say that the agency made withdraw or amend this is also reflected in the mandatory disclaimer and subsection c three so when the agency posts these for proofreading this disclaimer tells the public that the rule is subject to correction before before publication which does not tell the public that this is subject to withdraw point i guess it was you know come back to that that you know this may well be a unique rule and a unique duty that the agency has post here but it is reflecting the unique statute in the backsliding provision and to the extent it is unique i think you know the affirming judge here will not have far reaching implications that will require the publication of these standards if the agency is concerned about these hypotheticals moving forward it can amend the rule there's nothing preventing it from doing that it can't going to stop that that that's right you're in an agency is bound to it's regulations it's bound to the text of the error correction rule as it exists now and that is what this court does and force ok thank you counsel can we put five minutes even on the clock please you'll get your full five but i probably will hold you hold you pretty closely to it good morning your honor i was appearing on behalf of the people of the state of california and their fourteen government planets the government plan of brought this lawsuit to unlock a substantial benefits that mr fein discussed especially the environmental benefits which will combat the all too real dangers of climate change i have a few points here mr fein was able to cover most of them returning to the broader question here the defendants frequently reference a supposed inherent discretion that they say that they are exercising or that they can exercise in order to  delay or refuse to publish these rules however a more fundamental principle is that agencies must comply with their regulations as required by the rule of law as mr of energy to publish the efficiency regulations that they have spent years working on and that they determined were justified under africa mr prime covered most of the textual arguments that we made in our briefs i would like to hit on a few points in the regulatory history first that as he said the congress is sorry the department of energy is balancing the benefits of delay in order to correct the standards with on the other hand the delay of the benefits of the energy efficiency standards at s c r one four eight the department of energy rejected a longer period because  efficiency standard of these products that are part of energy said that the process should be rapid and streamlined at s c r one four eight and i don't believe that they have met that goal here that are part of energy any rate or history also said that eight cents what these the central features of the error correction rule were one that they delay or rule and two that they consider air request before publishing so throughout the regulatory history we see the presumption that publication will occur because the department of energy went through its extended rule making process in order to determine that the standards were justified just i'm curious if you have a different answer from your colleague if the agency had wanted to write the rule in the way that your opponent has suggested what is it that they would have said instead of will  language that we would have seen they could have used may that would have maintained their discretion to determine to decide after the or correction process that they wanted to take that final step and publish it  here they used well as mr fein pointed out they also use well ordinarily an f five they also use that in the regulatory history when they were saying what they would most of the time do but that i don't i mean that's it's not that easy a fix it seems to me if if the agency wants to limit the error correction part of the process to true type of fixing typos right it does have to say our policy making process really has come to an end in the sense that we're no longer going to entertain any further input from the public in terms of substantive matters right so that's why i understand th really if that a part of energy didn't want to find itself to publish in the rules they could simply make a a input acceptance process as opposed to this one where they didn't clued the mandate of whale submit publication they could have just left subsection f out and just said this is purely a process for the acceptance of information on potential errors i see my time is defined what they mean by errors which are simply numbering mistakes calculation mistakes or or some unintended inconsistent correct so that was the only type of ent but that they were your honor i just want to make a couple brief points first of all the question about why the agency would want to constrain its discretion which i think you posed to plaintiffs is exactly the question that we think needs to inform the analysis of the context and structure and the text of the air correction rule itself and i'll point out that although the plaintiffs pull out will submit for a publication out of context every time in subsection f that phrase is used it well matters because the entirety of the the error correction process is designed to regulating constrain public input not the agency's consideration of any matters that might come before it either through error correction or as judges are appointed out on its own cognizance if if there were a fundamental catastrophic change in the industry conditions as one of your hypotheticals posed for i think the agency needs to be able to accommodate that account for that i really don't see that as being an end to this error correction process so just sure i think that's exactly right and that's our point it has nothing to do with the air correction process which is instead only addressed to the input from the public that is being constrained so the agency retains the power the question is whether or not it is limited its what it can do during this period  the previous rule i don't see that as inherent in this regulation so just should i think if i may just come at it from a slightly different direction i think what you pointed out is exactly consistent within fundamental to our argument if i make continue just to answer your question your honor the fact that that that the text and purpose of the rule have nothing to say about the agency's fundamental policy authority which o'connell other fundamental their authority to make clear continues up until the point of publication the fact that the rule says nothing about it so the words are viewed the ambiguity in the rule should not be read to  question thank your honor so very briefly the the agency should be allowed here to complete its review which has been interrupted by this litigation the agency will address these fo r policy questions but it hasn't hit has waited to do so until the constraint that's imposed by the injunction here has been resolved whether that actually is because my questions yes or no i didn't follow up with mr fine but so the two years has run on one of these rules but i don't understand the statutory scheme well enough to understand the other two are brand new and so therefore they're not subject to the two year so that to your limit imposed by statute is from the notice of proposed to the to the final rule i think i don't remember the details your honor so i don't want to get this wrong and be happy to address it in a supplemental submission if it's helpful the point that i think we come back to with respect to all of these statutory deadlines is that if there is a concern that the agency is unreasonably delayed the seven zero six one concern that addressed the remedy is not to compel the publication of that particular proposal that substantive proposal but instead to compel the agency to take some action if you look at the plaintiff's complaint and their request for relief where they have not sought that release in this case and that's what's extraordinary about the remedy that they've sought here you wouldn't have a problem with the district court it simply says you must take action within a certain period of time so that's exactly right in this in the if the case were brought seeking that relief and the reason i point to the request for relief in the plaint complaint here they do not seek that relief that's what energy see in prior litigation in the southern district of new york in the district of the district of columbia did seek did achieve and the agency proceeded in  cases difference so the difference your honor is that the agency would retain its policy authority to make a judge and about what the standards should be and whether they satisfy the statutory requirement that they be technologically feasible economically justified and have a significant energy conservation element to them so energy savings no your honor they have not so they made a preliminary determination but that determination is not final until it is published that's that's the point that we keep coming back to your honor so again this goes to the nature of the relief which judge white for you and i were discussing at the very beginning of the argument and i think it's important to recognize the unusual nature of what the plaintiffs have sought and to view with some skepticism their idea that this regulation and this statutory scheme of allows this kind of release weir's the court to reverse the injunction