whole multi state area i thought the simplest ground you have which to me is pretty compelling on which is that even if the receptors in pennsylvania once you get a hit that triggers legal consequences for delaware and your dollar and that's all you need that your honor i don't know that i could have summarized our unit better than you just did that's really our argument  please the court joshua berman on behalf of citizens petitioners in the state of delaware i will address the remaining step point issues that would acknowledge that if the court agrees with the argument from mr casaubon it is not necessary to reach the issues that i'm going to be addressing here the operative remaining question a step one is whether delaware itself has an airball the problem on the record it dies you know after those whose whose argument actually go to the twenty thousand next unless you make an and good neber obligations must be implemented on a timeframe no permits time we attainment on more fundamentally here e p unlawfully fails you give effect to the present tense as we just discussed this schedule it is analytic approach to step one conflicts with the attainment schedules of the act that were at issue in this court's decision in wisconsin in new york just on the on the present versus future  provision right that is correct your honor and law in think it was north carolina we upheld the view of the good neighbor provision as future just the ante chameleon can and right once you impose a certain construction on a statute that's what the statute means it can't shift according to context the basis for disclaiming the existence of an air quality problem and also clearly held that good neighborhood nations must be implemented on a timeframe that's consistent with allows for a time we had him in a vehicle the standards i see my time is up good morning your honour's i'm a piece of cork michael stranded representing the state of maryland discussing the step three issues on behalf of the petitioners in this matter with regard to the step three issues i'd like to discuss three points the  is that the update rules that aggregate assumptions are inconsistent with the source of the civic data presented in the petition before you too that the update roles cap and trade program fails to them before and to address that st it may incorporate all the others which was which is how do our decisions in wisconsin and new york affect the ability of the e p a to rely on the uptick ru establishment of an aggregate emissions limit for purposes of the update rule which was a you know regional rule meant to address hundreds of sources across twenty two rule was reasonable but for it being a partial parole and that a complete remedy needed to be implemented by the devil because because of the failure to harmonize those debt that's correct which seems like a different problem from some of the mongers at issue here we declined to vacate the rule the reason we gave for declining to breaking the rule was to preserve the structure and integrity of the cap and trade program and we certainly didn't foreclose she be a preserving that partial rule which was meant to be brought in address generally what optimization was was intended to be overturned that it wasn't overturned but that doesn't also mean that these particular units can't do better and the kids only if you can see that got there step three analysis is to consider whether there are additional cost effective emissions reduction is available at these particular sites i think this would be more akin to the way this corps and the supreme court has treated e p a is establishment of state wide emission budgets under the original cast the role macassar update in those structure but said there can be as applied challenges and this is like an as applied challenge here duran or remember we're talking about a rule that was promulgated under section one hundred and ten dollars versus and whether that rule under one ten which is a state wide federal implementation plan can satisfy a one hundred and twenty six petition which is a separate independent provision under the clean air act meant to address source with available within the state and this petition based on facts the civic data about these specific sources says there are more cost effective measures for the maybe the misunderstood i have a more fundamental administrative law question  which i thought was an argument that you had made in your twenty eight year letter but maybe i'm wrong about that and that is the government's answer to your one hundred and twenty six petition is that you haven't  shown a major source would have made any air pollutant in violation of the probation the good neighbor provision because the update rule ensures that there is no buy lation of the good neighbor provision we have fuck that's their reason we have found that the update rule does not satisfy the good neighbor provision and that means that the justification they have provided under the general rule move on to cap and trade but i'm not sure about answer it's now they gave an answer in their twenty a j letter and if you could respond to that that would be helpful i'm struggling to i will give you a a trading program that would limit contributions from individual sources consistent with the way them attainment is demonstrated but that's not the cap and trade program we have before us to is relying on emissions from outside sources not named in the one hundred and twenty six dollars petition to establish a generalized optimization rate without looking at what the proper optimization rate is for b s particular sources and then the cap and trade program would allow a state to go up to twenty percent over its statewide budget one hundred and twenty percent of its emissions can be allotted for with states or within the state you you absolutely could i think the proper place for that would be satisfaction of step two you're getting but whoa that threshold amount in certain satisfied the st part and then step three you can't have a cap and trade that doesn't address the specific sources that you raise and the one hundred and twenty six but instead addresses for all the sources in such a way as to satisfy whatever cost effective result i think you got to see what comes up with in terms of contributes substantially to state emissions i think that comes right in your honor i want maybe if i take a step back and do some table setting here for you know maybe i should have done that at the beginning we're talking about an update will update where it was promulgated under section one tatt as a federal implementation plan resolve a state's statewide failure to do with an adequate set state implementation plan in contrast section one hundred and twenty six is an independent congress sent an independent mechanism to address violations of the good neighbor provision from a source or group of sources by the plain language of that section those sort the e p a must then make a finding based upon that petition whether those named sources do or do not do what the petition says and then if there is a finding that e p a must regulate those sources those sources must either shut down or com detail but i would like to start with the questions about the wisconsin opinion and how it effects the e p a justification here it's important to keep in mind as i think you judge catus pointed out that the wisconsin opinion things were controls at non power plants non e g use and things like new catalytic controls and new non catalytic controls so there there are sources out there that installed those things would be up to focused on was optimization and operation of existing catalytic controls and existing non catalytic controls those are the same controls that petitioners have brought forward in this case so when you ask judge garland about how does that impact e p a s conclusion as to those forces assessment of these forces in the update was complete and is complete now which is not complete is the rest of this these petitions are not about the thinking about a slightly more basic level the your argument here was that section one hundred and twenty six petition fails as long as it doesn't produce violations of the good neighbor so if you are a lot if in your justification you are relying in significant part on a rule that we have said actually fails to satisfy the good neighbor provision how can we uphold your judgment in this case your judgment is based on a rule that we were ready held is insufficient i have two responses to that your honor in part will set aside because it's a longer discussion and that has to do with and twenty three discussion which i'll get into the other part of the answer to your question is that as to these controls there is a deadline in the update the trading program had a deadline of tw because there is a deadline for viz controls for the remedy for these controls that's what the update training program is it's a remedy for these sources so even  that is your formulation is what the court in wisconsin held which i want to be clear of disagreement but these sources have a deadline and not sure how that solves the problem that is team and stop doing that and they have to do it by a certain date it's not a wise it's sufficient to say what we picked x number of sources and they will be done by that date unless you can show that those sources petitions we're looking at specific sources the sources that we're looking at are sources that were already addressed they're covered by the training program the training program is requiring them to operate their controls and it's working now there's the technical question that counsel for maryland brought up which is well could you get these reductions from somewhere else technically yes but e p a looked at that on this record what do you ph found is that the sources it's the question under step three e p a is analysis which is is it cost effective to operate these controls and that's that's what gets you to do they significantly contribute and interfere with down payments right so in the update e p a already looked at those controls and already said it's not cost effective to do this it's really expensive and it doesn't have enough downwind benefit based on our modeling which is really complicated to make it significant within the union of the good neighbor provision e p a looked at them again here so there's improvements are pretty minimal so we were sticking by that cost threshold that we used in the update in there something i want to mean we still said that that rule didn't go far enough so don't you have to talk about the remaining spots don't you have to reopen the question whether non catalytic or in the next most cost effective control to achieve a greater degree of  we've looked at everything that's what the court guy e p o and they didn't look at everything u k said they didn't look at everything they looked at a c r they didn't look at new s c r they didn't look at new s and c r and they didn't look at nine has to go back and do that now let's say the reason you make me care and make comparative judgments right sure and so let's say they want to renew and so it it may be the case that the non catalytic or the  for e p a to say oh we addressed we have we resolved those issues resolved those issues in the update so it is because in the denial e p a didn't just say the update resolve those issues e p a took another interest in us in this is of no help e p a said ok i already reached across threshold and the update now let's look at what new information you've given me you've got two facilities they're small they're lower mirrors and when i look at my modeling there's not that much downwind air quality improvement available so i'm making a finding under step three that it's not cost effective doesn't it doesn't change that legal landscape ok so one so one possible justification is we did this in the up we resolve this in the uptake pearl must assume for the sake of argument we don't think that's good enough so you just gave me another one which is in the denial here you made a micro assessment of these two these two plans i had thought that there was a rd rationale which you see in the administrative record and therefore might solve the chennai problem which is simply that it's the petitioner's burden of proof and regardless of what you say they didn't satisfy that burden yes your honor i'm glad you bring it up because when it when it comes to these stress step three questions there's really t affirmatively disprove the allegations from petitioners they have to present data they have to show that it binding must be made the other case that the court should really pay attention to it appalachian power now petitioners never really confront this case that i really think it resolves a lot of the legal questions that petitioners have raised which is that you can fly specked a trading program based on what we think  addressing these same sources it makes sense for u p a to conclude that they that they satisfied their good neighbor obligations by participating in their trading program and so i  encourage the courts to pays attention to that case because it's really directly on point for a lot of these issues you can use regional remedy to solve concerns about specific stores that's correction that's a general statement of law which i'm going to take your word is true but that doesn't really answer the question of whether e p a did that here i mean that just takes us back to it is what you really are which is right which is to the extent there were things that needed cleaning up after wisconsin you did that during the ozone season they're not not on this record that's not what this record shows so b p sort of with through those things and said we've already addressed this so i'd like to simply know the sort of practical question which is a little strange if let's say you you impose the store specific limit on these sources we've got the regional caps so other sources then can go didn't prove by the way that even if you could look at these out of state monitors that the multi state area will have a downwind air quality problem if any future year so if you didn't have to prove any particular future year what he had to do was look at the record that delaware presented e p a did that and the e p a went above and beyond that step by doing its own gut check with this model they're already had on hand so you don't have to even look at that question about what future analytic here matters the court doesn't have to reach that and i do want to point out because this is important e p a did say on the record that even if they looked at these out of state minors there's still no proof of a downwind air quality problem another thing i want to point out about these out of state minor question is that there's this strange thing on the record delaware says well you have to look at monitors in pennsylvania to prove downwind air quality problems but the reason of the four  delaware petitions about are in pennsylvania you can't hand interstate transport from pennsylvania to pennsylvania so they can't have it both ways if you get to look at these out of state monitors and pennsylvania then three of their how could an individual state that you talk about practicality how can a state ever prove that you have to look at every single possible kind of control and every single possible kind of the knitter that's the job a does in order to make the determination of what the amount per ton is cost effective how can an individual state asking for greater contribution you know greater limit on emissions  so i would be speculating about exactly what the technical analysis would have to show but you know if for example they were to say hey here's some sources that haven't are going to rest or here's a standard that hasn't already say you know here's this specific set of controls and i think that they're cost effective i mean e p a does not think i think their cost effective is going to persuade them that we have to be so they would have to make other stuff this you know complex process that happens in between and then eventually you get down windows on other pollutants are a little bit more straightforward like silver dioxide for example you can sort of measure the amount of so for dioxide coming out of the reduction technology or whatever other than the ones you've already wondered if they don't have to identify every possible line in the universe so they understand you correctly it's a question of could you  graphs which has points for different possible technologies and one point is optimizing the catalytic and the next point as you go up on pollution reduction on one axis and cost on the other is optimizing non catalytic and then there are a few other points and then who knows what other possibilities there are in the world and it seems so  realistic to say that the burden is to identify every possible point and compare i think that's right this is what would have to i did ok so why isn't it enough for them to say all right we know we know one point is optimizing catalytic and we know the next point on the graph is optimizing non catalytic and that's the one that not not now that we know the uptick rule didn't go far enough i mean here's e p a scrafton the next next most expensive option is on catalytic so you have to do that mean the court has said that repeatedly and it's in wisconsin says you know e p a still has significant latitude for example in finding whether six whether it's significant so yes they could come in and say hey you already assess which plots a bunch of points and you draw a line between catalytic and non catalytic and you say we're going to go so far because no farther and they say all right you know he e p a has done all the relevant is the next best possibility so that's what he p a now has to do i mean that that's that's where they tried to do that e p a looked at it and said we disagree and what was left on the table in wisconsin what he has to go back to do isn't to revisit these s and c are befalls it's to look at other stuff e p a can revisit essence the archerfield right they have the discretion to do that especially if there's new data that says that they should but it's not wired in here when that was presented to you that i just disagree and that's and that's because there may be other options on this graph some somewhere in between catalytic and non catalytic in terms of bang for the buck that's certainly possible and that seems that seems to come close to decision is the e p a st was before there was johnson decision came out we didn't have opportunity to talk about that but i think the outcome probably would've been the same you get said you're asking me to do something with controls that i've already assessed there's a whole bunch of stuff i haven't assessed but you're not asking me about that you're asking me about the stuff i've already addressed i've already imposed a remedy for catalytic controls and i've already said not a political goals are not cost effective i'm looking at it again i'm looking at new data that you presented i'm looking at new data that i have and i think what i've done isn't enough so that's really what permeates throughout  denial is that they say i've looked at this i'm going to look again you're not asking me about things i didn't look at the short exception of runner island which is a record issued they didn't make the case you introduced by saying because you know i don't know if the facts have changed since then i know what doc you know data is in this record and they can always make another finding but what wisconsin requires i don't think actually touches on any of the things you actually did here and i and i want to ask you are because i think this is important there's a lot in this wisconsin opinion there's there are various statements of what you p a was holding for example it says you know one control obligations i think what was constant required was control parity you have up when controls installed at the same time is down with controls and that way you make sure that you're not over controlling the up win states and under controlling the downward states and that's what i think wisconsin requires but the court just didn't have the question in front of them what do you do with marginal areas where there are no control obligations where there is no attainment demonstration requirement yes the statute says attain but it doesn't specify steps to do that all they have to do as a marginal state is collecting data and record data if you were to have parity between date on which somebody is required to do something that you have to if you want to point out a particular paragraph that says that i'd be happy to look at i would like to point out the paragraph where i think it really encompasses this and what it says i and start controls then you have that same problem in the other direction right you have a deviation in a direction that requires upwind states to do more than their share there's another paragraph i'd like to point to your hon title one includes all of the substantive requirements for marginal areas all of the substantive requirements for moderate areas so if what do you v a is saying what you don't have to do anything but collect data as issue based on what wisconsin says and if that's what the court is considering i would ask for supplemental briefing on that question because you know we had very little space in the twenty eight chain letters to talk about that but i would also like to emphasize that i just don't think the court needs to get to that issue because it's because they didn't make their case for any future nineteen days delaware didn't prove nine attainment by two thousand and twenty one or any other future clean air act we want to make exceptions there is no exception that good neighbor obligations do not apply to marginal non human areas for his and that's if we know where he acts i only eat he nowhere in this entire case is ever acknowledged the consequences that apply to not human areas there are economic consequences that exist even for marginal areas any new major source of pollution is your hard to obtain emission offsets that is an economic burden on a downwind state that is a way that i think is also if you look at the record delaware it truly delaware if you look at its petitions shows that based on u k zone modeling keller is responsible for less than ten percent of its own who is in problem solving it by itself is responsible for twenty percent of dollar isn't it there's nothing equitable about requiring delaware to try to squeeze more blood from a stone and there is about to requiring optimisation of already installed controls on services in pennsylvania a couple points on the record that council f sea modeling as counsel for delaware recognized shows that there is also a model not a human problem in philadelphia not a material effect that monitor is located outside the boundaries of delaware has i believe  day the e p a is relying on aggregate assumptions from the update rule to justify its single uniform level of optimism optimisation which by its own recognition by its own language provide for their own compliance so that date does factor into that but the rule itself was a partial remedy set implemented partial the partial remedied by the attainment deadline and so down when states were then and saw that most of the sources that the sources are operating it says the sources are operating based on an emissions average of zero twenty that's double the rate it's said it is posed to be that would be reasonable of the e p a had looked at the particular sources named in the petition and evaluated this specific data from these sources and made that determination but the aggregate assumptions that used relied on  controls in the years nine hundred and ninety nine to two thousand and four and that the best rates were sometimes decade a decade more then when their controls were installed just the underlying assumptions here don't lin the facts presented in the petition and in order to be granted deference as this work knows e p a needs to justify its decision based on the facts in the record and it hasn't done that here as far as burden your petition i'm not sure what else marilyn was supposed to present here we discussed the cost effectiveness of the remaining emissions reductions beyond what were implemented in the update rule and two thousand and seventeen in the petition  within a five hundred dollars to one thousand four hundred dollars per ton were duction which e p a said it's cost effective for those controls already and so it's unclear what further burden maryland needed to present in a petition  four hundred dollars per ton or not cost effective what it focused on as part of its partial was the most to come most cost effective it looked at what got the biggest bang for the buck and explicit for a complete remedy we don't know as i think your honor was alluding to where that one dollar is where the new cost effectiveness wind will be provide a complete remedy and we're not asking this work to make that determination here but to have but to be told that a source that has already spent the money to install that control doesn't need to even run those controls because the emissions are too small doesn't wind up with the but you really are to the extent that if we accept your your your argument on burden is you don't have to prove the negative about every any possible alternative technology  you've come in and made a presentation with regard to non catalytic and we ruling your favor that will be a necessary part of the next update even though there may be all sorts of other options on the table and even though those are actively under consideration presumably on the wisconsin score is certainly can go about for i think the point i was trying to make is e p a has said in the past that these are possed a fact catalytic and non catalytic controls are the most cost effective controls for power plants and it is up held the use of non catalytic controls that's reasonably available control technology in consideration of the economics in other parts of the clean air act and to now turn that on that on its head and say we we don't think these are cost effective based on our language and that in the casper update which only says we're focusing on the most cost effective and this is not  future cost effective determinations is just too far what's your answer to opposing companies are respect to the catalytic controls that even if they impose some additional optimization requirement without a change in the capital make any difference i'd merilyn they optimize more than they'll be able to sell their allowances or byelaws several number one these might be the sources of running more frequently or another state employment effect in maryland so it's not within a state of maryland these are open very well are going there are limits on how much a source can buy it how much a state can buy from another update required and if we got this additional production whether that would result in over control and the answer was no and e p a is now says agrees with that but other then you know bad analysis i can point you to anything in the record that says whether or you know this remedy that marilyn seeking at the end of the day will resolve the problem or not i can't answer that the american believes it's an important step forward  a to say it's unnecessary because that will just be absorbed by somebody else we're not sure we don't know what a complete remedy it's going to look like we just know that these sources are sources that are able from a historic perspective to run a lot better than they are e p a knowledge is certain sources can run a lot better than zero point one e p a acknowledges that it's uniform level that it applied in the casper update was only appropriate given the partial nature of its role in maryland seeking to resolve its you know problem the interference with its own maintenance from up when sources where