important yes closing counsel are we talking about really a remedial kate what's the remedy that is going to be obey a will in this case is that really when we get right down to the nuts within its power or any number of remedies which might be appropriate here we don't view it as our client e p a and what they did in this instance your argument is that was wrong that's not the remedy that they should have had that's correct although i will say your other that we have noted in our papers examples of alternative remedies that might have been appropriate as an alternative to the rabid e p a chose and in your argument there is will wait and see if that turns out to be the here on four grounds the st ground is that it is decision to grant replacement rins  sinclair and holly frontier was in permissible and required a notice and comment rule making procedure to authorize the statute itself specifically states those instances where notice and comment and rulemaking required those include the very issues that a large stake in this case so our st argument is e p a failed to comply with  obligation to perform a notice in common room making and therefore it's got to go back and do it over and what  the action taken by it does not authorize e p a to issue replacement returns in these circumstances nowhere in the statute is that option addressed it is wholly outside those items which e p a is required to addressing and i guess i'm wondering which of those positions are you taking the statue is silent but where a statute mandates that  of any reference in the statute to destry particular item is irrelevant the statute says you must use a notice and comment process to fulfill the statutory mandate including those at issue in this case so your honor yes the statute is silent except that it specifically mandates that notice and common procedures be utilized in these circumstances thank you you're welcome i want to be sure are a section of two which has a broad mandate that e p a promulgated regulations governing essentially the entire compliance and likewise specifically mandates that credit provisions be addressed through noti now since you're looking at me let me follow up can you tell me what the role of deference to the agency would play here if any it's let's go right to chevron it strikes us that the very st test of chevron which is you know does the statute specifically address the matter at issue yes it does to us no difference because we don't even get past that one well step one of chevron is does a statute address the specific issue and our position is indeed it does well how do you distinguish the new star opinion by judge sent a couple years ago where that's  enforce the the statute but it's not exclusive how do you reconcile that the situation with your position here are you familiar with the case i can't respond to you on the case i apologize well let me just share in where you got my thinking as i read through this we have a situation that occurred really is the genesis of this court and what it did or originally in regards to this exemption which our court says they should have granted and it's got like with your argument and if your argument holds true under the statute or under that regulation approach here is for these decisions to be vacated for e p a to comply with its statutory obligation to go through a notice and comment process which ultimately will address presumably the remedy issue as well and that should be the procedural vehicle for making procedural remedy that's correct let me quickly move your honour's to i think i've covered most of common rule making statutory requirements let me simply note that there are regulations that likewise were violated let me just show one which totally confused me this is on pages thirty one to thirty two of your brief yes i mean that's just a statement of the blue without any explanation if you want to try to explaining what your problem there is well it's what your complaint is i should say  our position is that all all those issues all those many issues all those very technical issues which have arisen in the implementation of the room the renewable fuel standard should be addressed in through the notice and comment process that we're advocating in other words when there are regulations which which will what are the i'm not a chemist and i can't speak to the tentacle nuances of that particular element of what constitutes a written and what is couple producers in a very extraordinary circumstance that's what you're saying that seems to put a lot of burden on linking process well if the remedy that  granted was unlawful under the statute impermissible it conflicted with both the statute and right atory provisions  so that he can also just some issues i had some prepared remarks to start with but i think what i'd like to do instead is jump right into some of the questions the court had and amplify or and respond to some of those  that agencies typically do have more leeway in discretion in crafting a remedy the producer said that rule making is required making is not required for some reason are one the statute does not actually require room making for not only this specific situation but this general situation it's true the statute does require there are regulations that govern these credit provisions these ruins and their detailed regulatory provisions but as this court recognized in their case that doesn't apply to adjudicating it to addressing the small refinery exemption that is properly addressed by case by case  adjudication as was done here and there's no requirement for e p a in the statute to develop regulations that govern not only how to proceed but the specific question of what do you do when you get to the point where the remedy is unclear no let me ask you and just my thinking assuming that we get by this the statutory argument that you posed counsel has made and i want to root move to the to the regulation were invalid i mean when you look at those four specifics that you in your regulation now how do you tell me how you get around that so one thousand four hundred and thirty one says invalid rins our number runs right so e p a recognizes that would be a problem if e p a had just decided to return the rins that were retired for compliance several years ago to the small refiners  that would not work because their expired been too long so if you didn't do that if he had just returned the rins and then the smaller finders try to use those for compliance they'd be invalid would not be a meaningful remedy so e p a did not return or didn't did not give them expired rinse so they're not in these replacement rennes are not the same rigs they're standing in the place of the which you can't do that they're not duplicative because those the original two thousand and fourteen era ribbons are still retired they did not come back to life they're not being used the duplicative problem would be if those records were still in the market and these new replacement rims were also in the market and had two sets of this commodity representing the same fuel but that's not what happened those winds were incorrectly retired for compliance smaller refiners didn't need to do that but couldn't just give them back because they had expired their life had expired so to take the place of them they created they allowed the creation of the replacement rennes so it's it's not a semantic difference because if what e p a had just done was allow these old two thousand and fourteen wins to be used again they wouldn't they wouldn't work because their expired the need to be a way to create a ribbon that had some meaning just like the original ones represented fuel they represent actual renewable fuel and they're not i think the th one was otherwise improperly grow if that's the case then doesn't it if you're not relying on it showing on one of those four that it was legal doesn't the actions then in and of itself show that it was arbitrary and capricious no no i don't think invalid written but there's a gap it doesn't address this situation this remedial situation where the rens were retired for compliance purposes but then it turns out the wrist more refined it doesn't actually have to retire any but if you just give those back they have known that they're meaningless there's no there's there's not a meaningful remedy and then on top of that an important distinction here is that the delay in time that caused that problem was not due  refiner it was due to litigation and he was very careful as decision document to state it that is the basis on which it was taking this action it wasn't announcing a general principle for all time it certainly wasn't announcing something that would be presidential because it chose to do it in an adjudication it was saying that on the specific facts of this case we think this is the best way to provide a meaningful remedy for the exemption is good just for purposes and that i follow that argument but just for purposes what what would you think was your nd best way to provide a remedy well another option would have been simply to return the rents that were retired for compliance that is as we mentioned our grief that's the typical response e p a would do if a small refiner went ahead and retired rins says while it's petition is pending go  retirement for compliance and turns out no you didn't have to you have the exemption you get those marines back so the e p a could have done that and just stopped there that would not have given these small refineries any meaningful relief i'm sure they would have sued us immediately saying that's not what this court and sinclair had in mind and it remained a t p a to adjudicate whether they're entitled to an exemption so e p o isn't stuck in a hard place that didn't have a good clear remedy so it did the best it could recognizing that the regulations in the statute don't speak to this narrow situation they speak to other situations there's no discussion of say equitable polling of the expiration time because  litigation ever address i don't know if the e p a consider that internally or not but we would've been if that had been the basis then the producers would have come in and said well the regulations do say that iran has a defined life the year that they were generated plus an additional year and if we had if you created what we're going to pull and they said then that magic they would said well now there's a specific regulation that says you can't do that and we would have to argue about well it's different than it is or so i'm sure there's other ways that e p a could've tried to approach it but they all would have run into the same essential problem what do you have any good case law supporting your various arguments there's a common sense appeal to it but we have to apply the law well there's i mentioned the one opinion by judge and well for the d c circuit with respect to  exclusivity of rule making which he said did not apply in similar circumstances but you have anything that would more closely fit this case i haven't found any cases that fit this particular fact pattern there are a lot of cases from the supreme court from the d c circuit and from this court but for the more general proposition that is the same as a new star that in general agencies can proceed by case by case  or by rule making and there are cases that say that the agency not only has great discretion in making that election but that the case by case option is the better option if i very fact specific and it's new it's something the agency hasn't faced before and the agency is concerned about announcing a general rule for the st time in very case specific facts specific situations the bell aerospace from the supreme court talks about the agency's discretion this court's decision in route involved the agency adopting new penalty policy and the court said that it was ok to do that in case by case instead of the general regulation of this court case an american can also talked about questions of st impression where they could apply in a wide variety of circumstances and upheld the the agency's decision to go case by case so the broader question there's a lot of case law supporting e p a s decision to craft a narrow remedy i haven't found any cases that deal with winds much less you know more more broadly of this fact pattern i'm not sure that those are out there well look we hear your argument but what's bothering me is and i understand you have some broad discretion but there's got to be some legal basis for exercising that discretion otherwise it falls in the category of arbitrary and capricious so how how does what let's just zoom purposes are how are you going to convince the court this court need to retire rins and that they can pin titian for that status that exemption at any time so e p a is now that obviously doesn't speak to this narrow situation of what happens if you go down that road they get the exemption but they've already retired the rins so this is not a case where there's no statutory authority for instance if there's no statutory authority for an exemption at all and he said well you know what smaller fineries they're in a different vision we're just going to exempt them that's a completely different case e p a is within the statutory framework of granting exemptions and it's within the statutory framework of retirement and it's trying to address that gap where neither the statute nor the regulations speak to what you do if those two don't some were back in the middle of this proceedings there was a letter from intervenors that to me i read as being cautioning the e p a about doing it the way you were going to do it and i need to hear from as you heard my quick you know it's the letter i can't remember the letter but i know it was sometime in the middle of all it trying to undo what like oh say giving credit to this court for creating to begin with didn't you write a letter to the represent actual fuel going judge heart limited time to going to to your point of question or case law for this i direct the court's attention to niagara mohawk of the d c circuit judge leventhal in that case describes a situation in which