good afternoon you're in the homestretch may it is the court this case focuses on a particular provision of the renewable fuel standard program section seventy five forty zero eleven imposes on the e p a a duty to conduct periodic reviews of three particular issues and to use those reviews to inform adjustments to program requirements in the underlying rule e p a deprived regulated parties and the public of the statutory protection rule in question a two things first e p a reads out of the statute one third of the mandated review and otherwise limits the nature and scope of the periodic review duty second e p a purports to implement the statute by announcing for the first time that it has satisfied the periodic review dut and to support this is certain in a points to actions taken years ago for different purposes but these actions plainly do not comply with the duty that congress imposed in section eleven   level i would like to address why the wallace finally unreviewable why it required notice and comment and why it's contrary to law arbitrary and capricious we asked the court to enforce the statute by vacating the e p a s determination that had it has complied with section of eleven and remain ending with instructions to complete a review in accordance with the statutory provision  and we believe that both of those are final and reviewable and both of those required notice and comment so you want the whole thing yes and i think that the conclusion with respect to finality and the requirement of notice and comment is really dictated by two of this court's opinions the two thousand and twelve opinion and the sierra club case six ninety nine thirty five thirty and the two thousand and eleven decision and r d c six forty three third three eleven like the e p a actions in those cases this one treads new ground it's the first time that a p a has addressed the periodic review provision in any fashion it marks the consummation of a process e p a reached conclusions about what this provision requires and made a determination that its prior actions satisfy this section so could we talk about the other problem is so let's let's not just for purposes of asking a question let's not talk about the problem that deals with conservation let's talk about the problem that deals with legally a concept legal consequences so what the what the agent says and the document itself if for no one unlike our annual standards are certain of certain other r f s regulatory actions that do establish legal requirements interpretation is that you nor the description of our studies in this document require any party or the agency to do or not to do anything beyond what the statute requires so you have to either think that that statement is wrong or that that saying that is right and it doesn't that the duty has not been satisfied or claims for and reasonable the way adrianne's this underlying rule changes where you say that it closes off claims of duty hasn't satisfied because because th our only opportunity to day in this court is our only opportunity to have judicial review of the determination that all of these things that happened in the past satisfies there may be a reason why you can't but let's suppose you could if you could then what you would say years now we know that those things that we didn't realize it created reviews are actually periodic reviews and that we also know the eighty's interpretation as to why it was satisfying the statute we want to bring a a list of a dozen things on which the e p a received comments and which it took the position were beyond the scope of the rule so what it's trying to do is unlawful in hue more language a bribe duly entered the scope of the rule makings that took place years ago in which it treated all of these things that would have been within the scope of the periodic review as beyond the home but that with that sounds like a military that sounds like you're saying that they're now trying to treat themselves as if they satisfy the statute and they did and what we're really talking about now is whether you have the opportunity to make that argument somewhere but then why don't you have you opportunity to make that argument if you just challenge it on that ground and you say they're now saying those were periodic reviews i now realize that and i'm telling you that they're saying that but there were wrong in the way they treated it we disagree with their interpretation for a couple reasons first it doesn't make sense i mean and one thing they say they can do is change willy nilly what satisfies the periodic review so it's constantly a moving target and it's the court if you're timely and say that wrong if you have standing and be it's an arbitrary and capricious argument i think that's really both impractical and nonsense a call for us to have to go back and challenge fifteen different things that happened in the past rather than challenging the consummation of the process which took place in this rule in which the e p a for the first time that those things are now satisfactory satisfying the periodic review duty it seems like it turns good so i'd like to take a step back and give you a little more background so that you understand the way that program works the legal consequences and where this precludes us from doing i do have this in the record yes it say should happen periodically rule making and in this brief e p a says we don't have any obligation to do anything other than a class wired impact review we say that section a leaven entitles bolero and others who are regulated parties to and a review in can jump in with the statutory language and when do you get to do that we say that there annual document is our periodic satisfies our obligation to do a periodic review and annually of the obvious these periodic so that visited at least is periodic and you could say this is one of our periodic reviews and here's how we're satisfying the periodic review requirement by doing that it seems to me at that point you could seek review and say arbitrary capricious as the periodic review part because the explanation they give it is nonsensical and you could make you just now making which is that what they're saying about this satisfying the periodic review obligations doesn't work you look at these things you can't satisfy the periodic review by doing the annual part there are a mismatch you have to do something different you could make that argument and that would  and it would be determined whether it was arbitrary and capricious and it seems like what he is saying is that's what you should do and it's true that they never said that you know manual document but they've now set it and that gave you a new chance to seek review of those documents on the basis that you now know they were periodic reviews i think what they've done is different and more what they've done in that underlying rule is say we don't have to conduct any review in accordance with the absolutely clear from this court's decision in the us on the us versus palmer last year that e p a cannot treat that per this and as and melody and this is the only opportunity we have to challenge that there is absolutely no precedent for having a situation like this one where there is clearly a scrivener's error you have a cross reference that cross references to a provision that doesn't exist i think clear i thought ju your role making as a periodic review in fact in the past it has clearly treated the annual review as something quite different and so example we made comments in the last war making about the effect of the treatment of renewable fuel that is ultimately exported and we said this is the feasibility of these requirements and  last week in this court case number seventeen and twelve fifty eight defending its position that that issue was beyond the scope of that in a woman right we cannot raise in that case the idea that they should have conducted a periodic review because there's nothing that requires the annual review and the periodic review to happen at the same time so i'd like to  i would like to move on to the legal issues that are before the work with respect to the substance of the decision and that is that the substance of the rule is contrary to law and in several ways first is the scrivener's error everybody agrees that there is no possible reading of the text absent correct in this erroneous cross reference because then you know about the cases that consistent with the tax structure of the purposes of the statute and the legislative history that's a joint appendix eight what they try to rely on are cases where the court had to choose between the literal meaning and something else where the court could give effect a fact to the literal meaning even then as in the appellation our case where the scrivener's error distorts the true meaning the court corrected it here the drafting history and the structure show without a doubt that congress intended to cross reference the volume requirements they did so in all of the versions of the law bills in both the house and the senate prior to recall if occasion they all cross reference back to the volume requirements which were see the second way that underlying rule is contrary to law is this idea that we've talked about that the review saying these earlier actions i'm not going to go back into that because i think we've covered it that i do think it's important to emphasize the language of the statute in the part of the provision that why review that they purport to have done and in the past and the reason and that there is so insistent on nullifying the third prong of the periodic review provision is that they can see that they have never conducted this kind of individual lives review even though they are well suited to do so because all of the entities that are described are regulated parties they are subject to reporting requirements they are participating in an electronic reporting system and so e p a is uniquely suited to c from those entities by which it can study what has been documented as disparate impacts on various entities that are different differently situated oh but the agencies taking a position on this particular regulated party claim that e p a is interpretation is incorrect and that it's causing purposely put that what you know in there it purposely didn't publish it in that register it purposely didn't say that this is binding on the field so you know checked off all the boxes and so this is just something floating in the air and the question is well what is a regulated party supposed to do where there's not only was the whole argument that congress the language talk about the annual rules because those are not themselves those are unitary decisions that are not themselves according to the entire u p a periodic reviews of p s i did several of those in the number of different documents  we don't think that either of those would be an appropriate vehicle but volero isn't exactly the same boat that it was before you ph to this document by virtue of being very careful to issue a think that's where that i mean i think that would be the avenue to attempt to do so and they can't point you can't go with the documents that you say now satisfy the periodic review requirement the argument for that is that it's spread out over multiple ones of them so how do you know which one to challenge us that's a component of the argument your honor but the purpose of those arguments are annual rules for example setting the boy requirements you for that specific purpose and as a component of that e p a has been conducting any or rule or has been conducting some of these reviews but you didn't have to do it that way it could have conducted years otherwise and so it's not necessarily the case that all of the documents that you could cite as part of it for years are themselves finally agency action the core that i keep coming back to here though is that the narrow issue before the had the ability to get review and this doesn't create you believe that didn't otherwise exist i get that which is just to say it's always been zero and this document is also zero and therefore we said zero which that makes sense to me but what this document does something else that also  it never had to issue this document in the first place but it this is this is what we're attempting to create a right of judicial review out of this document it's for example it's the briefs in this case where it's briefs in an unreasonable way case and that would not have legal effect the you know we would certainly i expect i can't speak for certain of her future counsel but i expect we w one reasonable way claim at least in part on the theory that has fulfilled its duty and i think we would likely point to the same actions that are at issue in this document and then if that's true so on one hand you're saying bring it in as an unreasonable delay and then i then you're saying when you're going in it is unreasonable to labor saying it's not an unreasonable a because we already did it and then if somebody says ok i just my head snapping all i want to do is i want to figure out how can i challenge the thing that you said you already did because i see a statute that says when you do a periodic review that you've got to look at a handful of things i look at the things that you're looking at those are the wrong things i think you're supposed to look at a different things and then how do i get that claim aired how do i  factors we're considering it looks at the statute it says here's how we meet the statute here is the fact of reconsidering this is supposed to be a review that's conducted in conjunction with the appropriate adjustment of the requirements described in some paragraph b and it does whatever needs to and with respect to actually adjusting those requirements and then it says there now you've seen this is our career out of her view and then somebody brings an action to get  says wait a minute i see that you've done your periodic review it's connected to the appropriate adjustment of the requirements i don't understand what you're doing with here i can hear because your analysis of the statute just doesn't comply with my understanding that s that's that's right your honor but the the argument that they are making that there will be going to you has changed is in part and i think in primary a has changed where they can get judicial review that that's the that's the change in the legal regime that they are identifying and that's where the p a disputes itself again i'm not one hundred percent sure i understand of the but let me ask this follow follow up question is my it's my mistake not yours it's just posit that so if that's true that in that situation there would be judicial review then what's the difference between that and the current situation because in the current situation what's happened is e p a has said not that this document is the periodic review but it said  club you could have done something more analogous to what it did here and said whatever whatever avenues you have to challenge whether we are fulfilled this ninety percent standard that was at issue in that case as an individual entity that you're aware of your own research i suppose and i haven't given this a great deal of by e p a could potentially vital a petition for gore making requesting that you could adopt some specific regulation or procedure to do this  i haven't and i assume that if you know what i was thinking of is that in other contexts a regulated party is able to come to the agency and ask for a waiver and that's an individual party could seek review to the administrator and if the ministry there were then could come to court because come to think of this is sort of an administrative often issue in terms of getting into court that's not the way this has been argued  than the process you described is exactly what you pay should have done it shouldn't issued a notice and given an opportunity to comment both on the interpretation of the statute and the implementation of the statute and by taking that action that it did it deprived of the any opportunity for notice and comment on those issues in the sierra club case that the determination alone the repurposed thing that unlawful shoehorning that alone was sufficient to establish banality and the need for notice and comment the same is true here judge rogers with respect to your question about i think you are referring to the provision in the statute that allows small refine petition for an exemption and the statutory language there is very different because the onus on the small refiner to petition and the relief to be granted is very narrow this statute says e opportunity that we have to enforce the statute and as your questions to my colleague revealed this really is an attempt to a way to both notice and comment and any form of judicial review thank you thank you