environmental and the statute further provides in plain english that the e p a shall set forth in writing and make public its findings and reasons for making any determination maybe you can help me with this aspect of it is where having difficulty with points the dismay which is that you're referencing this standard in the statute of a glacier is unacceptable adverse a fact but when you read th the regulation that would seem to be the standard that applies when the e p a is prohibiting the specification is not apparent that is the standard that would have by if they are withdrawing a proposed determination so maybe you could walk through this because to get to a proposed determination which is where we were there doesn't have to be a certain way that there's an adverse effect or there just has to be and i'm paraphrasing because i don't have it in front of me but basically a reason to believe that it might be an adverse effect it's a little bit lower standard for the proposed determination so why wouldn't that be the appropriate standard for withdrawing it to say well i no longer have a reason to believe that it might be at st because there's been an earthquake and the whole place is a mass anyway or we have different environmental controls that will take care of a problem or we know more about the past and there's only going to one instance of this where the e p a has actually drawn on a proposed determination it is a good as you say look back to the statutory standard and apply it in reverse itself that i cared you're telling us that you i guess it's a question is that enough to say well there are some standard out there or if if we were to conclude that this is  identify specifically what that standard ought to be are you saying it's premature even to do that as long as we can identify one or more possibilities where rights your position on the ye would say the court doesn't have to do that i think it would be helpful if it dude did do that and in other cases and there's a long line of them both in this core and at the supreme court where there is not any specific standard view  in this statute there is the standard and it's very public and it's only going to be done if you think the counsel that we would have to determine there is a standard in order for you to prevail because that it would seem to me that if the if the argument is there's not agency actually committed to the agency's discretion we would then be having to say well what is the what is the legal standard that is the statute the regulation sets for it because if there standards in the statute and here it's unacceptable adverse effect and then you evaluate the agency decision making like you always would under the a p a based on its own terms the record and the reasoning that it is i guess that area where i'm not following or not with you on it is an acceptable adverse effect is the standard for the giving of or of course the process and then ultimately prohibiting something but it's not the standard for withdrawing the proposed determination there is to my review of the regulations not apparent that there is such a standard but i don't think if there is a standard i don't see how unacceptable adverse effect or acceptable adverse effect would be that standard it just based on the way the in line with the proposed nature of the action in other words a proposed determination and withdrawal of a proposed determination would seem to me to have to  the opposite side of the same coin and yes you're right for the germination the standard is it is good all our only argument is that there is a standard and if it's good well that then that can be reviewed its proposed germination as the as here and the argument put forward by the government so far has been that it is a purely discretionary act and it initiate and stop this process however  true but i don't think that they're right and i think this court cases made clear as well as the supreme court this is not a case where there has been no action there has been actions e p a took a substantial  the st place that that is committed to agency discretion maybe your honor and that's not this case the there is a decision that we side of the or where the district or and the district of columbia have found that out was but this court doesn't need to go there and doesn't need to make that determination the only thing we are arguing for the court today is that once the e p a asks based on whatever discussion  get straight to the heart of the matter there is simply is no law to apply to e p a s decision to withdraw its proposed determination because neither congress insect throw for sea nor  and its implementing regulations provided any standard against which a withdrawal decision could be evaluated much less to a meaningful standard which is on fire the faulty scuse me i'm going to have a number of questions but the st one is whether you agree with the proposition that this is a final agency and your honor that the agency has said that and it's it's not the issue here if i  any other situation in administrative law and maybe there are some that i just haven't come across where a process is reviewable or not depending on whether the answer is yes or no in other words if someone gives let's say a social security claim a survey there get benefits or they don't it's review of all one way or the other and what you're hearing for is this is if i understand it if honor i'm not sure about i mean certainly and men and numerous other circuit instances agencies explore issues issue proposed you know take out you know explore issues before they make a final determination but i'm not aware of cases holding that those interim those exploratory steps are review of that's why our that's why start with action asking if it's a final agency action i'm asking if you are aware of any other situation in which an agency takes a final agency action and it's either reviewable or not depending on whether it's pro or con and you know i guess my problem let me just be upfront with my problem with your position you analog it to a prosecutor's discretion whether to prosecute but if a prosecutor decides to indict someone that's not reviewable they that's their prerogative if they decide not to indict that person or they withdraw the indictment because witnesses died or of the loss their favor the prosecutor that's not reviewable that it works both ways and what concerns me is you're sort of trying to have this have it both ways it seems to me and i respectfully disagree are on i think certainly you know if the if a prosecutor prosecutes and there is a judgement of conviction there is a review of that if an agency exercises its just pression and appl to ask you also about this question of the standard and whether for good or ill our court has been really pretty creative in finding standards where there aren't any stated in the statute them seems to me here that there was there was even a closer ability to figure out what of yours they should be looking at which is this question of what cost the proposal in the st place many of the cases on which trout unlimited relies are in opposite and not controlling because they involve exercises of authority so in as morale that's a different question you're saying that that it seems to me there are two separate if it's a final agency action and so i'm a can only in my question to you now is only if that little piece at the end is the manageable judicially sensible reasonable standard various find  scheme that would make it a real standard then not just something to to take this action to exercise its for of course the authority it did not require e p a to do so in every circumstance and it provided no standard for it by which a court could decide when and whether  should exercise its authority that it's very important to keep the standards distinct there's the standard that you would apply in a final determination an acceptable at first affect will occur and i would like to also address that you know the proposed t erminations did not make that determination or you know it's a much lower step but there is the set the issue before the court your honor is whether there is a standard for the exercise of the p a s home broad discretion that congress proposed determination they went down the road it have real world effects they did it and we assume that they did it on a discretionary basis they are we don't know why they decided to do a but they did it's done so now the respectfully the answer is no one st and foremost congress didn't constrain e p a s discretion and you can't also has not constrained its discretion to withdraw proposed determination  circumstance where the regional administrator makes the determination that e p a administrator declines to review it there is no substantive standard in that provision all it requires is that notice of the decision to give not no standing there earlier on or respectfully it means there is no standard of clickable to the is to this issue before the court and what it means is that congress did not commit oversight of the e p a in this respect to the court that is clear from the statutory scheme and from the regulations now the unacceptable adverse effects standard is irrelevant and heckler v cheney makes that point very clear this exact argument was raised in that case that you know there is a subset standard and you know in cases in cases in the enforcement context like this one there will almost always be a substantive requirement or a prohibition that an a authorized to prosecutor to enforce but that doesn't give a court discretion to weigh in on whether the agency to do so because it thinks that that substantive standard has been met in a particular case or i thinks that the agency should exercise its discretion the question is whether we're at or e p a manifested an intent that the court made that determination and if i could earth like to address the point about final agency action and also the point that you raised the night i had an opportunity to address about the proposal and the withdraw now and finally agency action it's not relevant we have explained in our brief final agency action is one hurdle that a plaintiff must overcome in order to obtain review under the a p a it is not the only hurdle and it is not the hurdle that is it is should be or the issue here is whether this has been committed to agency discretion by law and there are we have we have cited a number of cases you know there are other instances pacific gas for example we cite pacific gas and electric company the firm in that case the federal power at provided for judicial review orders but there was but the court declined to review the specific order because it was in essence a decision not to exercise a discretionary enforcement authority that was  definition of received that precludes this from being considered elucidation well i think your honor there was no action there was never a final determination and there's never i mean in the administrator shall make a final determination affirming a modifying word rescinding the recommended determination so what does it mean to rescind and recommended the terminations that's different for withdrawing standard a political two withdrawals no substantive standard for the court to a to evaluate it only requires that notice be given notice was given credit unlimited has made no argument that the percy jurors were not they were not satisfied the issue to some degree and had cleared the cheney itself the agency had been petition to take very specific and forstmann action responded with the with reasons why it decided not to do so i'd also like to bring up in the nominee tribe it's very closely analogous it was a withdrawal of objections to a proposed permit under four o four jet a and the court did an excellent job in that case of explaining there is no standard clickable here e p a explored the issue if you explained in the proposed in its in its preamble to the final rule a proposed determination rearly means that it can be explored  here i think that's it final agency action is not the issue this is committed to agency discretion by law because there is a not a standard for the relevant question which is whether and when d p a must exercise it thank you your honor finally even see action isn't just relevant it's central and usually it's the entire ballgame the withdrawal of the proposed germination here call it was the culmination of agency decision making process and it fixed rights and obligations both for industry and for the public under the a b a and actually like that is presumptively reviewable and it should be here there is no question that the proposed determination was an action and if with fault was also an action there were the proposed determination impose specific restrictions on mining within it doesn't need an area related to loss of streams loss of wetlands and alteration of streams just as the miners well that had a significant impact on their believe the mind within the couple of pa that it mosher really did it and by the same token it carry benefits for my clients and its members preserve their ability to use and earn their livelihoods on the bristol bay area that this is not one of those cases like act or even act or said that an enforcement challenging case obviously and you've both been extremely helpful i'm here to share your arguments and with fat we are adjourned for this afternoon's argument session