and apologize but saying that my video stopped by the host there we go oh good we're ready for you council good morning your honour's may please the court my name is rory this case that's on appeal deals with whether or not the supreme court's decision international paper company versus who let means what the supreme court said it means and interestingly this case presents an opportunity to see the value of a dissent other than simply an opportunity for a justice to express disagreement with the majority in this case the partial the sense by justices stevens and brennan demonstrate that environmental restorations interpretation of international paper as requiring the point source were all under the clean water act to apply it to all was not simply substantive laws and displace any of the form states rules including conflict of laws is correct we see this because justice brennan's dissent is exactly what the district court did in this case justice brennan urged that instead of what the supreme court majority did a traditional conflict of law analysis be applied that is not what the clean water act or applied were choir's as a supreme court announced an international paper and made clear in its subsequent decision of arkansas versus oklahoma the clean water act displaces all traditional common law choice of law and all forms say choice of law in favor of the application solely of the law of the state in which the source of the alleged pollution occurred now counsel and in very midst the limitations issue was was not present in international paper was it no there was not a statue of limitations issue in the international paper that was entirely on the choice of law writ large however the supreme court is fully capable of drawing whatever distinctions  wishes it didn't say this is the subset of law of the state of vermont it didn't say only a subset of love from want it said the law of vermont but don't we generally presume that there are only addressing the issues before them which in that case had to do with substantive law as opposed to procedural law one would generally presume that your honor however that's again where the sense become very helpful to us in the dissent by justice stevens actually he criticizes the majority for going above and beyond the narrow issue presented to it and making a sweeping generalization regarding the displacement of  e form state's laws and we see that this in fact is the meaning because justice stevens himself who was critical of this expansive reading in international paper authored decision to go beyond the narrow issue that was presented he was not challenging its authority to do so it's well known that the supreme court has the authority to pass on however narrow or broad an issue is it wants that's presented to it elected to do so in that case against the prudential urgings of justice stevens but he did not challenge its ability to do so and in fact when given the opportunity writing for the majority of the unanimous court in arkansas versus oklahoma did not take any steps to limit it or identify a disagreement with the earlier holding other than on that procedural basis which he had previously identified and did not bring up again so yes while normally we assume that the court is making as narrow a ruling as possible here by the nature of its dissents and the fact that that the sense was not objected to or the major already opinion was not modified in response to it's clear that in fact in this instance the supreme court did intend to announce a categorical role in international paper and as the entire unanimous supreme court reaffirmed a few years later in the arkansas decision so again while that would be the normal presumption that is not the case here much like for example the normal presumption is that the standard rules of conflict of laws apply to an analysis unless otherwise displaced by statute here the clean water act was designed to be a comprehensive regulatory program by congress that displaced in its entirety earlier patchwork of sporadic an ad hoc approaches to the law doesn't back down so in favor of the five year limitations period so you would have a uniform nationwide limitations period sometimes it would however again the decision made by congress was that the point sources state law apply and the issue there was whether or not there was  predictability for a regulated entity the congress recognized in passing clean water act the primary position of a point source in regulating conduct within it here the addition of a five year statute of limitations actually would counsel against that deference to state courts and the i'm sorry state law and the reason for that is to fall one the scope of a substantive right tort liability is affected by the scope of the limitations and it's a general principle of law that courts should not expand the remedies available under a state courts laws by virtue of a sat that's one of the reasons why the federal general catchall does not apply you which if we were to apply the federal general statute of limitations we would be applying a federal statute of limitations to state law a state law claim that's correct your honor this is a state law tort claim that's at issue here and so that to apply the federal statute imitations would be applying a federal statute of limitations to a state tort claim the question here is really whether the specific act of congress the clean water act displaces traditional conflict of laws analyses by district court sitting  diversity here and seeing that i am questioning is why you're finding so hard not to do choice of law analysis under this for the statute of limitations because under colorado choice of law statute it looks to me like it would be colorado's shorter statute of limitations because the substantive law is colorado and i'm missing something there you're not your honor however that was not the conclusion reached by the district court and the issue here because this is an interlocutory appeal not one after the full procedure is whether or not the district court's analysis of the choice of law is correct so we don't believe that the court even needs to get to that issue because troy civilize been displaced by the clean water act and the point source for all and you're relying on footnote twenty of the supreme court's decision in all about choice of law yes and generally the point the point source rule as a whole and the supreme court threw out its decision in international paper versus the lat and its subsequent decision in arkansas versus oklahoma  and consistently used categorical language that the point source rule applies the law of the source states and displaces any statutory or common law of downstream states in this case for example new mexico now one thing that i'm sure is in the back of everyone's minds of the not technically applicable to interpretation a certain court precedent is whether this reaches a just result and the answer to that is yes even though it requires or would require dismissal of the plaintiff's claims in this case as part time bart the reason for that is because although here the point source role would impose a narrower statue limitations in the form state rolls this is not a rule that is inherently favorable to one side or the other for example what if the point source were new mexico with a three year stash limitations and the forms that were colorado with the two the opposite of what we have here the international paper decision would require the application of the longer statue imitations in that case because it is the law of the point source state inherently tied in this jurisprudence is the substantive rights and the procedural limitations upon those rights including statutes of limitations this has the additional benefit of avoiding jockeying or lobbying for forums for multi district litigation such as the current case the current of several have been consolidated into new mexico for and the elegant astray sion and that was done despite the fact that there were a number of other forms there could have been this case sent to colorado district court utah the state of utah is claims it's just records may have also had jurisdiction rather than have a fight where one side or another seeks to gain a little geisha advantage by choice of law provisions or where the multi district panel chooses to assign a case for consolidation the application of the point source rule and the proper application of the supreme court's precedents in international paper eliminates that need there is easy predictability wherever the source of alleged water pollution exists that's state's tort law governs any claims that may exist for downstream plaintiffs and that state's actual indications governs that so that there is in those three states all have a different statute of limitations would be statute of limitation of the tort state that is one of the injury occurred differ for well for example under colorado colorado has a borrowing stats here you know the colorado where it's sitting in diversity would go through the same analysis that new mexico goes through what is interesting and know where the is and in fact urge the court the case to be consolidated in the district to be met i don't really see how that impacts what they answer here is as a question of law and i can't get over the supreme court and now let's quoting with approval the statement from milwaukee three that discharges would be forced to meet not only the statutory limitations of all states potentially affected by their discharges but also the common law standards developed through the case law of those states and saying that would be an acceptable under the purposes of the clean water act  here a federal statute of limitations very clearly applies when federal congress adopts a federal law and does not put a statute of limitations in it what we're dealing with here is state tort law so i don't see any application of the federal general statute of limitations at all and i understand that and i agree that a forum state in issuing impermanence through these e p a administered programs it's just that downstream states or those impacted can't all of a sudden decide to impose higher water quality standards and the court refuses to do that and it would make sense if they were going to extend the procedure all law of you know whatever the points are a state is to say let it be venue that in the points or state analysis here let's see cars speeding from colorado into new mexico at a rate in excess of the speed limit of both states in it as a matter of law  doing in allowing in focusing on the point the source of the release the state in which the the environmental release happened is that you have an analog of the federal court order of sitting in diversity but the idea is the result no matter where you bring it in an affected state should be the same result you would get in the source state and here what you want is a result the could never happen in the source state because your action is barred isn't that a problem for the overall goals of the statute here in terms preempted it and put in a different procedure and you know and so you know just to wave around a bunch of procedure versus substantive cases that have to do with traditional diversity cases doesn't really help us with this analysis so i'd like you to focus on the statute we're dealing with and its goals and purposes entered your honor the based on damage caused to people for releases and so they're not necessarily the same and the statute spreads the authority between affected states and source states with a lot more power in the source states even on the permit side understood and that is clearly to me at the poles of predictability in terms principle of american jurisprudence that this happens all the time and there's no affirmative argument that somehow the clean water act pre law including the statue of movements new sense of the forum state applies and it's also interesting in that you know in terms of federal preemption one thinks that if this court does believe that there is some kind of federal you're on there is i just have three very brief points i'd like to highlight the i think respond to opposing counsel's arguments st the issue of how far do we go with procedure is i believe a red herring in this instance we're discussing the statute of limitations which is so bound up with the right to remedy that the law fords that it really is not the same as a rule of discovery  procedural rules that make it more difficult to bring a claim are frequently up held and imposed by federal courts and statue of limitations that defined the scope of a substantive right is one such thing we cited some cases for that in our reply brief and page eight but those include the guaranty trust co vs new york and rachel vs westlake nursing home partnership case out of the th circuit in fact that case specifically said this includes the applicable burdens defenses and  limitations your honour's second the issue of what justice stevens meant as he was writing the arkansas case whether i was misquoting it or not is up to your honor's to the side however i would like to read one small bit of it this is a quote from page one hundred of that decision the clean water act taken as a whole its purpose is and its history preempted an action based on a lot of the effect of state and that the only state law apple to interstate discharge is the law of the state in which the point source is located the only lot of the state is what justice stevens wrote for a unanimous court finally but i think that begs judge carson's question which is i think very tightly focused on   i'm not sure that i ever heard the answer the judge corson's someone'll question because that is the issue for us to consider here that's correct and i'm not asking the court to go on a hope and a prayer congress has instructed the courts to do so in its passage of the clean water act which to quote the deepwater horizon case out of the th circuit congress c you very much for your arguments both of you there very well presented thank you the court is the counselor excused in the