circumstances the issue before this court is measuring and kind to blend reality with certain legal principles and this weekend i came across a line by stephen hawkin who said that the greatest enemy of knowledge is not ignorance it's the appearance of knowledge and it seems appropriate for this particular case and situation we have a situation where the e p a issued the final rule in december of two thousand and one and based upon its review of all the facts and the circumstances and its interpretations of its own regulations it decided in this wisdom that it was appropriate and i should add based upon the advice in connection with dealing with air issues relating to the agricultural industry that there simply was not sufficient scientific data yet developed to be able to meaningfully and intelligent apply regulations title five regulations emission data for agricultural activities in most every circumstance it is you that role recognizing the existence of this lack of scientific data recognizing knowing the existence of forty two three thousand even california and deciding that three years was a reasonable amount of time for the e p a to work with the industry and with the scientific community to come up with the data and the testing procedures so that it could intelligently and reasonably develop the measuring tools so that the farmers in the state of california most of which are very small family owned farms small businesses not an industry in the way that we usually use that term so that they would have the tools to be able to determine whether or not they were subject to the permitting requirements whether or not any of their activities were in fact major sources and comply with the law and making their permit applications paying their fees and avoiding any liabilities that flow from those acts when the agency decided that it had acted illegally and so on decision interpreting the regulations and that it did not have the authority to defer for three years i exempt an entire industry now what it but let me see if i can frame it this way your honor when it was challenged by certain environmental association in dealing with in applying the new regulations to agriculture in doom so it violated several principles in that the discretion that an agency is granted is not without limitations the discretion to define regulatory terminology doesn't allow an agency to ignore the relevant considerations and the facts and circumstances that impact those decisions could the administrat ors have exempted the poultry industry or family farms will find acceptable definition or some component of the agricultural administrator she had chosen to do so if she had chosen to grant a deferral not an exemption i believe that they could have your honor in fact they have done so in the past at this particular point though in fact and they did it in the in the two thousand and and they done in another context in the clean water act in this case they decided to reverse that position they do an about face in making that decision to do that  needs to justify those reasons taking into consideration all the facts and the circumstances and to fashion a remedy that deals with the reality in the situations that are presented under these facts and circumstances far less when it reverses the position without justification then if in hell it has held a consistent position throughout now there is a fundamental principle that you judge hawkins actually recognized in different contexts in the case of foley versus of the of menlo park that a regulation and the case was that you can violate due process process if you do so veg that a person of ordinary intelligence cannot reasonably ascertain what conduct is prohibited and that is the challenge that california farmers face with the present situation said we are going to regulate farmers under title five and the farming community does not dispute the fact that title five applies to any major source regardless of the industry the tension in this case is that by e p a s own admission and that's confirmed by the national academy of sciences recently and the other involved parties  to be able to determine to allow the farmers to have the tools to go out and decide whether or not they are subject to title five whether or not their activities actually exceed the they are required to file permits any fees be subject to penalties if they're wrong and so the since you are wrong those fundamental tools that are necessary for them to be able to determine whether or not their conduct is prohibited or require some conduct do not exist they don't have those tools and we can't get around that the difficulties and this is one of the things we're e p a tends to gloss over some issues these around candidly are one of the easiest activities on a farm to be able to measure and determine whether or not it is subject to title five for any other activities on the farm that will contribute to emissions and that includes fugitive emissions that includes k photos that includes the dust that ends up coming off the road most dirt roads the farmers haven't any of their plowing activities or any of the dust that blows off their fields those are required to be included in the permits that are supposed to be issued tomorrow and the farmers simply don't have the tools and the hasn't given them any of the tools to be able to make those determinations and the guidance that they gave just a few what about two weeks ago i believe right now i'm sorry it was less than two months ago when we were between thirty and sixty days is remarkably fly they end guidance is really an overstatement of the terms the guidance that they've given is a few pages and i realize this is not part of the record before this court but most and to achieve the multiple goals that are here is to follow its own regulations follow its own timelines follow its own practice and procedures initially we go back to the process that they apply employed here the first while we run into is their interpretation of the regulation of the ninety day rule and as you recall in the briefs the first step is for the e p a to issue a notice of source of pollution or you can see the e p a but we're going to run into the same problem down potentially run in the same problem down downstream but there is a remedy available to a that may be able to serve all purposes if they follow the procedures that their own regulations require it will our the scientific community and the agricultural and farming community to work together to try and put together some reasonable regulations and some reasonable rules to try and apply title five a moment but a p a thought it would take three years from december of two thousand and one and that pro repeal so they moved to repeal ok and within ninety days they moved to repeal it within ninety days what actually did they pay the action they took within ninety days it was there was actually senate bill seven hundred which had been issued and those actions are continuing but the idea that one can't repeal a law that has been on the books since the forty's and affects one of the largest industries in the state of california within a ninety thousand period alleged deficiency and one point if i may go back to ask hearken to the you made the reason that california did not involve the issues and try and remedy this earlier was not because of the existence of forty two three me it was because of the lack of existence of scientific data what was which was well known by e p a and the agricultural and scientific community everybody understood that with in that three year period of time that forty two three  and follow the regulations that ninety days to make significant action if not eighteen months in which to repeal forty two three to give the community and the farming community an opportunity to come up with the tools to be able to comply with the law piece regulations forty c f r section seventy one point three one provides that they can submit the information that they have to e p a and he will make it likability determination for that so there is a route out even absen regulations are designed to allow the p a considerable flexibility in determining what must be done and how quickly to avoid imposition of the federal parts of the one program forty c f r seventy point one  and we can give them no more than two years deficiency we gave the commonwealth of kentucky only six months to remove the offending on privilege one not two years one hundred eighty days six months so again every single year for most of the year in kentucky the general assembly meets only for a total of thirty days during odd numbered years like two thousand and one and the most of deficiency in our case was issued at the very end of two thousand chose to limit its approvals of programs to partial programs that apply to all parts seventy sources within a limited geographic area and they did that in forty c f r seventy point four one and the reason they did that  encourage local agencies to develop instant complete programs and get your house in order were basically saying to these agencies but for you so that your program to us we want to know that you can control everything however when things break down in an agency it isn't necessarily necessary to withdraw our approval for everything and that's why e p a has regulations regarding withdrawals approval approvals are not solution forty c f r section seven point one  a raises several issues which are strawman arguments you're right we are not disputing that the agricultural industry is subject to title five nor we disputing that there may very well be and remedy a solution to the problem that is presented to both e p a and to the farming communit does not allow that agency to ignore the relevant facts and circumstances and that's the department of wildlife case cited in our briefs the two fifty eight after eleven thirty it's not good there's two pieces there are they can sit there and say fine we'll be the regulations or say that we don't have the authority to defer that in itself may be defensible but then part of that analysis and part of what they 're required to explain in the record is how they're going to deal with that take into consideration the facts and circumstances why did they choose the methodology that they employed here why did they decide to say permit requirements when they had the discretion and the authority to grant eighteen months up to two years especially when they knew that they were going to deal with a piece of legislation that was going to be highly controversial and i disagree with counsel there is s activity in sacramento right now and that that statute is going to be repealed when that i can speak to in all candor your honor but what has been going on this has been going on for about a year but is there any explanation as to why they took the course they did why was it necessary for them to impose this this procedure and that is required under the case law and the reason that they don't address that and this  substantial deficiency is because they were required to under a settlement agreement and agreement that was fashioned between the e p a and certain coalitions buying closed doors where they excluded the other interested parties and then we went rule making process which perhaps coincidentally completely track each and every provision of that settlement agreement which we contend violates the very principles of the rule making process which is supposed to bring together  meaningful dialogue and discussion all of the entities in the parties that are going to be affected by this rule making process and that's why earlier with all respect i said it was a sham process so these are the