we'll turn to our next case which is national resources defense council and several states including new york and california maryland versus the national highway traffic safety administration please the court stephen who for the state petitioners i'd like to reserve two minutes for rebuttal indefinite delay of the higher cafe civil penalty should be vacated for at least two independent reasons first the delay violates congress's unambiguous command the higher civil penalty rate come into effect by august two thousand and sixteen the command of the agency complied with and then in this the latest reverse databases for its authority to delay and definitely this row the basis for the authority here was the inherent authority of the agency to monitor the cafe program but that is a plainly insufficient basis for at least two reasons the one is that courts have rejected including this court the argument of inherent authority to delay a already finalized rule and the second is that the delay will hear does not actually reconcile the agency's position with the statutory schedule in the inflation adjustments act again that act dealt with this precise question how an agency and when an agency is to updated civil and here the agency violated both of those independent requirements and this court's decision abraham makes this perfectly clear in that case which was also under the same statute of africa this court is the agency attempted to justify a delay of an already finalize rule i mean this court said both of these things first that there was no inherent authority for the agency to reconsider an already finalized rule and importantly this court distinguished the authority to delay a wall based soley on the desire to reconsider it clean air council case that was a situation where there's no real dispute that the agency e p a has authority to regulate methane emissions from these these plants and yet what the agency had done there was not to actually impose a replacement regulation which would have been an exercise a substantive authority but instead had pointed to an already finalized rule and said they were going to put that off for a ninety day period and now that it is sort of agencies are all creatures of statute is there already statutory justification  for the delay of the cafe standards the lay of the penalty there is not in to the contrary here congress was unambiguous about what it intended agencies to do in this situation i mean the cafe penalty fall squarely into the type of penalty congress an agencies that was charged with adjusting their fees have they complied with that except for this i can't answer that question of whether there's been universal compliance very widespread it's been very widespread i think some agencies were somewhat somewhat the lady and then congress as command is unambiguous it applies to all civil monetary penalties is the penalty as expressed in clearly monetary terms and the problem that congress meant to address was this precise situation where a monetary penalty was set and a statute  decades ago and that had lost almost all of its deterrent effect because of inflation i don't know if it was yours or the n r d c said many manufacturers find it cheaper to pay the penalty than to comply with the standards that's exactly the problem let me just put it in practical just it's perverse and to put it in practical terms the real value of this penalty has been cut in quarter by the intervening years what congress intended was a five dollar and later five fifty penalty that would meaningfully promote compliance with the cafe standards and now manufacturers are treating it as a cost of doing business and to put a finer point on this the problem is only going to get worse because the cafe standards themselves are becoming stricter over time meaning that manufacturers will increasingly find an incentive to avoid compliance with those standards of course and i want to ask this case comes to us on expedited consideration because i assume we're all interested in the twenty nineteen model year it's still timely for the twenty nineteen model year if we act with dispatch on this case based on the manufacturer's representations i think the answer is yes but i do want to emphasize this too which is even if the twenty one thousand model year is now completed manufacturers continue to make decisions about and twenty and beyond we have evidence in the record showing that this is a series of rolling production decisions at least eighteen months but sometimes many years in advance and penalty rate is a factor these manufacturers take into account in deciding what technology to put in place in the states concerned there are many petitioners concern here is that a lower penalty rate here makes manufacturers decide they'd rather pay a minimal penalty in the future rather than make important technology decisions that will drive down emissions thank errors that the agency made here when it indefinitely suspended this important final rule there's actually a third violation as well which is that it was arbitrary and capricious focusing misrule focused mostly on the first lack of statutory authority but i also want to focus the court on the second one the lack notice and comment that that independent grounds for vacant her here is directly controlled by this court's precedent and abraham the reasons that the agency invoked for the good cause exception here are precisely the same reasons that this court rejected in energy see the abraham and that the third circuit rejected and energy see the e p a and agencies desire to reconsider a rule on the eve of its effective date does not allow an agency to suspend that rule without notice and comment  the third independent grounds for vacant or time line would have been too short they laid out the rules to go into effect and when it was something like twenty days well twenty seven days i explained with it they could have ordered notice and comment well you know first of all the agency could have allowed that final rule to the civil penalties will to go into effect while it took notice and comment on whether to suspend it agencies have done that they do that all the time they agency here is never explained why it could not have done that the end furthermore that the deadlines that were in place that that in terms of the effect to date were deadlines that the agency itself imposed those are effective dates that the agency set the agency may have had reasons why it wished to reconsider the civil penalties rule but the agency had an obligation to separately justify and explain the further action of suspending that rule during the reconsideration the agency here did not provide that explanation cases on all fours with public citizen the steve from the d c circuit which struck down an indefinite suspension of a final rule by this very same agency for failing to provide that explanation that explanation is lacking here as well if there are no further questions i will reserve the remainder of my time for a bottle thank you will hear from the agency make your arm it please the court thomas byron from the justice department here on behalf of the government the respondents i'd like to start by emphasizing what we've tried to point out in our brief which is the in significance of the delayed decision that's been challenge here i want to start by pointing out this goes to both standing into the merits what the agency decided was not to delay any substantive determination but only to delay the effective date of its earlier december twenty sixth dean decision on reconsideration in light of the agency's determination that it needed to continue the process  reconsideration that it had begun at the congressional mandate to do it by a date certain and you've just ignore that what is for i don't think it's fair to say the agency ignored that so let me talk a little bit about the structure of the twenty fifteen act in the  but but my point about that after all just cooler is that the statutory deadline doesn't disempower an agency from acting after the deadline passes that's the nature of most deadlines after all so what happened here is actually consistent with the statutory scheme it's not it's not prohibited by congress the agency here has relied on the exception in the twenty fifteen act for noticing con that when an interim final rule wouldn't be appropriate because it's necessary to consider the economic consequences of an increase now as the agency pointed out in the n p r m that's ongoing that was issued recently in the rule making that's ongoing there are additional legal considerations that the agency didn't address before about the scope of the twenty fifteen act at all it may not even apply here but let's assume for the moment it's challenging the twenty fifteen or so the agency is considering whether the twenty fifteen x definition of civil monetary penalties even covers the cafe civil penalty at all and if it even if it does how it should be reconciled with the provisions in that cafe statute it's the thinking of suing congress just for that's not necessary because congress has given it t authority to administer the cafe program for an illegal it's just find just forward this is i'm sorry so nobody's suggesting anything was illegal other than my colleagues what we're suggesting is that there are two statutes that need to be interpreted and reconciled and that that process didn't take place before so that's just an aside because the main point here is that the action that petitioners are complaining about  this court is very narrow and very limited in its effect what they cannot show is any harm from just the delay decision what they're trying to show is a delay from what the civil pen the rate will be for model y thousand and later model years but we won't know that until the ongoing rule making the reconsideration rule making is complete the agency is going to tell everybody tell the public what that civil penalty rates going to be for twenty one thousand and subsequent years an  i asked the questions but i will tell you the answer it's because the twenty fifteen out said that the civil penalties were useless because they weren't generating the behavior that was sought so that we've heard just before that the car manufacturers would rather pay the penalty than change their vehicles so that conclusory assertion by petitioners not supported by the record in this case and by the way you're right that's what the manufacturers grey briefs says they said we've paid a billion dollars in fees because we we didn't meet these standards and they say that are they complaining about that so just for i think what the agency has said i don't i don't want to characterize what interveners have said but what the agency has said is that manufactures have actually paid a relatively small amount in civil penalties over the years and that's one of the reasons by the way there's good reason to doubt the standing of petitioners but let me go back to the point if i may cause i think it answers your question in large  part we will know at the end of the rule making process what the civil penalty rate will be and it's not i cannot prejudge what the agency is going to do there you wouldn't agree that it's fair to say that it won't be five dollars and i can't i can't agree to that judge poor because that's the very question pending before the agency now and there are lots of reasons the agency laid them out in the notice of proposed rulemaking why it might not have the formula that congress dictated in the twenty fifteen hour the penalty would be twenty three maximum even under an interim final right so that's why you got thoughtfully reduce the penalty to forty dollars while your honor so the congress also said though and this is the really important part congress also said that notice and comment might be appropriate depending on the economic impact of the higher rate that noticing comment is now ongoing this is what congress specifically contemplated i don't think it's fair to say judge parker that the agency did know all of these specifics at the time if you look at the interim final rule which was conducted without notice and comment and then you look at the reconsideration decision in december twenty sixth in which was also conducted without notice and comment the my point about congress is intent is that there is an exception in the twenty fifteen act for notice and comment that has not the congress didn't intend to preclude agents from using in this circumstance petitioners argue that because congress put it deadline on interim final rule it meant to preclude subsequent reconsideration to permit the notice and comment congress specifically identified in that statute that's not it's not a plausible understanding of what congress must have meant because congress doesn't ordinarily prohibit agencies from using notice and comment that's indeed it is some irony here that positions won't notice and come it here but don't want it on the substantive questions and it seems a little odd detour could you tell me why n r d c versus abraham doesn't prohibit you from delaying this rule absolutely your honor so energy see about of against abraham was about a very different statutory scheme was still active i was not so it was there a number of titles in africa right we we work by analogy in the common law don't we will this isn't a common law question here on this a question of special interpretation and my point about stature interpretation is that the cafe statute was it stands apart from the department of energy energy conservation standards scheme that congress adopted and allocated to department of energy one of the most significant ways and the most clear distinction of this case from an r t c against abraham is that in the department of energy's energy conservation standards statutory scheme there is what consult with called an anti backsliding that prohibits the agency in this court relied very specifically repeatedly in its decision in that case on the n t back citing provision in that statutory provision prohibited d o we from reconsidering a rule after it had published the rule that's what this court held there's no corollary into backsliding provision in the cafe statute and therefore there is no reason to conclude that congress intended to limit the agency's abilities backsliding because they didn't prohibit it specifically was so so what so your honor let me rephrase my argument if i may my argument is that what the supreme court has told us and fox television in c no motor cars many other cases indeed in state farm itself is that agencies have the authority to undertake notice and comment rule making to change previous rules yes they absolutely do that's the whole point of notice and comment rule making in the so that's what's going on here there's nothing in the statute that precludes it the statute that you seek to delay is itself a final rule the rule they kate is setting the delay is a final rule and there was no notice and comment but there was there are two reasons why that permissible here your honor first of all it was not a legislative rule it was a procedural rule it was merely undertaken in the me put this in context if i may cause this is this is significant to why we think reconsideration decision from taking effect because the agency concluded that decision didn't adequately consider a number of issues that had been raised in the agency said we need to continue that reconsideration process to give those issues the full airing including notice and comment that they deserve so let me just distinguish then the december december twenty sixth in reconsideration decision from the earlier july twenty sixth interim final rule which did have its effective date was not delayed so just to be clear consider the economic impact no your honor did not that's that's very clear that the agency did not consider that and i don't know how did the amount of the fines be reduced from twenty three to fourteen there was the statutory limitation of one hundred fifty percent they did some reason consideration where they would have arrived at fourteen no your honor it was a an application of the statutory limit without consideration of economic effects how how did they get to fourteen from twenty three it's not without under one hundred fifty is no your honor it's not times one hundred plus one hundred fifty percent of fifty is fourteen that's how the agency concluded that that was the limit so they met the standard but they didn't consider the economic impact of that's correct that's right here and that's what the that's what the notice and comment provision the twenty fifteen act is designed to accommodate permit and that's what the agency is doing now so let me if i may just wrap up by saying that what what the petitioners are seeking here would be ineffectual and have no significance because let's imagine that so if so first it would be ineffectual because the five fifty rate was not set during the period reconsideration was not set in the rule that there challenging wasn't set in decision it was said in the accompanying request for comments on reconsideration issued the same day in the following pages the federal register but but secondly more importantly would be ineffectual because whatever the court the agency the public believes that the civil penalty rate is for model year nineteen right now is is not going to matter because at the by the end of this year the agency will have concluded its ongoing rule making on reconsideration and the agency fall i think it's in october of this year your honor race racing against the clock you know just pour in this is what the agency said in the delay decision itself if i make just answer this concern question for you because the agency explained that there would be no practical effect of the delay decision because the assessment of civil penalties doesn't take place until sometime after the middle of two thousand and twenty and that's that's how the process works we cited in our brief fract are entitled to know what the penalty will be as they choose what technology goes into the cars so i don't get any notice here so that's a concern that the manufacturers may raise later if they determine that there was an adequate notice somehow but what what my point is about standing and of the merits with respect to petitioners claims they say that they want to compel fourteen dollar rate for model year twenty nineteen but even if they were to do so somehow in this case and again my point is that they've not challenge the right thing here because the delayed decision doesn't do that by itself even if they were the agency's going to tell us in by the end of the year in a final rule what it is and that's go supersede you have not persuaded me that this is a gentleman action delaying this what would be the status of the rule and say we vacate this delay right away that's one of the options available to us been struggling with that question myself and here's what i think would would happen one thing they've told us and that we've maintained all along is that nitsa has the authority to do the reconsideration that's underway now they don't appear to dispute that in this case we very they may dispute it later but if they a lay that wouldn't change at all exactly or it would not change that will that will continue this is my point though about why it wouldn't matter so so imagine the court would have forty dollars would go into effect with that but only until a final rule is issued that's my point your honor so that's why i think it wouldn't much matter and it's not even clear by the way your factual errors making decisions right now would not matter to them oh so i don't know five fifty i don't know that it would because in this goes to the independent decisions they have to make and one of the things they have to do is make their decisions with the knowledge that the agency in the ongoing rule making is going to make a determination and in a final rule at the end of that process what the model you're nineteen civil penalty rate will be they get they can't know that no one none of us can know that now so if they were prudent however they would assume this a higher amount since that amount was went through agency rulemaking already and  it went through making in this in a sense you're entering into a funnel but let me just point out again that the the agency has said in a different decision it has not been challenged in this case that the five fifty rate is in effect during the period of reconsider so presumably the manufacturers that why don't you can your honour's not before the court that's my point they haven't challenge that decision and that seems to be what they they really are complaining about but they brought the wrong case and if i may just wrap  because i think it's because your question about abraham as well remember in that case there were a bunch of challenges brought in this court in the district court as well against a variety of decisions throughout the process and here the petitioners have argued have been pointing to the part of that case the talks about the delay of the effective date of the standards not in this is very different of course in that case but the court didn't decide that question until it wrapped up all of the option the court could consider is holding the case in abeyance pending the outcome of the final rule and if a petition for review of that final rule is brought in this or already done we don't have to really don't have to do the same thing that it's a dead which is delay everything where your honor i guess my point is just that that's what this court effectively did in our d c against abraham in other words it waited to wrap all of the issues together and consider them in the context of the agency's final action which is appropriate that's what those in com thousand and sixteen interim final rule which set the penalty at fourteen dollars that's the one they were considering which they are allowed to reconsider are there with notice and comment well they are allowed to reconsider read it's a separate question of whether they're allowed to delay it pending that  determination at the conclusion of reconsideration i do think it is inaccurate what the government is arguing that we challenge the wrong document here the only operative document in the record is the delay will itself which sad challenge and that is what we've challenge what they were for like to see us  rule correct my my question is where do we stand well and what we stand there without the delay rule is what the agency did not just in august of two thousand and sixteen when it set the fourteen dollars penalty consistent with the statute but then in december two thousand and sixteen when it reaffirmed that fourteen dollars rate and then granted in part the manufacturer's reconsideration petitions and exempted two model years from that time to the right correct but that's the very rule that they are now reconsidering they say and you can't challenge that yet are you participating in that notice and comment we are we are we will be participating in that notice and comment process but again this is this is the this is the exact argument that both of these circuit unclean are callous and discordant abraham address is what an agency does with a process of reconsideration at the conclusion of reconsideration is separate from what it is allowed to do with a rule that is already in a i agree do you think they have a right to reconsider it now i think i'm just going to put that question off for the moment i think some of our statutory arguments from the inflation adjustment act have the right to do it that's crime and that is what this court held in abraham and looked at the statue in that case and compound centering no right to reconsider and and i want to make a point critical i think it is startling for the agency to come up and say that a statutory schedule set by congress is something that the agency can disregard in the exercise of some other statutory authority and this court's cases of help to the to the contrary i mean abraham dealt with an anti backsliding rule that prevented substantive standards from being reversed and backsliding rule in then it's a statute is there well i would disagree i would disagree with that i think when congress set a schedule for increasing civil penalties mandated increased by two thousand and sixteen and required annual adjustments every year there after that is a version of an anti backsliding rule for the civil penalty rate there is no discretion in that statute either disregard that increase or to reverse  it as the agency has done here and the d c circuit in the n r d c versus riley case dealt with exactly this issue there was a schedule there for certain emission standards agency disregarded and the d c circuit relied on the schedule to say however compelling the reasons may be for exempting industry for those regulations the schedule is what it is and you have to comply with it you can't the law a standard that has been finalized still on track with the two nineteen twenty nine hundred year if we decided this case in the next few immediate implementation of the final rule which is a civil penalty increase would also cause immediate economic consequences for these production design decisions and what they say and i'm quoting and these consequences cannot be undone once model years are finalized and move towards production in other words the manufacturers are in this case supporting the delay precisely because they do not want to make current production design decisions based upon a penalty rate that they disagree with and if it were truly insignificant their presence in i mean what the manufacturers have told both congress the agency and this court are that in making a series of rolling decisions and not just for twenty one thousand to be clear they're making decisions now that would also affect twenty twenty twenty one and it's and further model years they take into account this future penalty rate because the purpose of the penalty is to induce them to comply with the cafe standards and the reason they want that penalty put off is so that they can make those decisions assuming the lower five dollars fifty penalty the financial jeopardy that they face is that having a penalty that is closer in real value to a congress intended in one nine hundred seventy five and that is nearly triple the amount of the penalty rate that they want to reinstate they're in danger of complying with the law well and that's right and and here the consequence the consequence of their number of problems with that one is that it's inconsistent with twenty years of interpretation from this very agency in one thousand nine hundred seventy five dollar and fifty rate was it was implemented because of an earlier application of the very same statute here in other words the rate that they are trying to reinstate is based upon the inflation adjustment act and addition even in the july two thousand and seven delay ruling here acknowledge the application of the statute and what it tried to invoke was as they say here an exception to that statute but never disputed the statute applies and the and the final point i want to say is about economic impact it is incorrect that the agency did not consider economic impact is on page twenty eight of the joint appendix they didn't specifically looked at the impact of the higher penalty rate it noted that i'm quoting the impacts would be limited because the number of entities don't change were affected by the penalty and because even though the penalty is increasing by two and a half times they expected that manufacturers rather than paying the penalty simply change their technology standards and therefore not be faced with the full amount of that increase spend now says in the record sufficient to support what the agency did last year and so you have a couple of minutes as well thanks your honour's you agree with mr or mark that status would be if we are granted there's a petition vacated the rule that that's correct and to to provide clarity in the court i think would be behoove the court not only to vacate the unlawful suspension but then also announce that the civil earlier rule takes effect when it when it was originally intended there's also other district court decisions that have recently vacated i'm awful suspensions by other agencies that we cite in our reply brief that have done exactly this and said exactly this and we think that's important judge have knowledge a couple times this case has been expedited it's been expedited for a reason for us i think the protesters asked for extradition that's correct environmental petitioners requested in the court granted that it did it for a reason which is that time does matter here for model twenty one thousand and after so i would encourage the court to rule as quickly as it possibly could and reinstate the fifth the fourteen dollars so that automakers do have as much time as possible to take that into account for their model year twenty nine vehicles their your your honour's correct those vehicles will be out on the showroom floors and on the road soon which is why our injury is imminent and there are still tweaks that automakers can make they can they can install more efficient air conditioners or little things like that that will make the bottom here twenty one thousand vehicles more efficient went out automakers are also continuing to design their model years twenty twenty and twenty one fleets as well and you know my my opposing counsel has has pointed out there's an ongoing reconsideration that's correct we are not challenging that that we are we're submitting comments in that but what's in what's so critical is that those are two the agency has attempted to conflate those throughout this case those are separate actions the suspension was unlawful needs to be needs to be vacated the reconsideration will move forward we will challenge it whenever there's a final rule that i've heard from mr byron that they they put back the five fifty rule is that part of this rule the delay  that's what you're on i we think that's that's clearly what the agency is intended in thought that it was doing with the suspension rules and that's clearly how interveners have understood the suspension rule as well they understood the suspension to somehow that's right to reinstate a five fifty rate that's i mean if you look at interveners breach that's exactly how you know they're trying to justify the suspension on that ground could they have done that could the agency have done that reinstated without notice absolutely not which is why why it's unlawful so that's we do think it's important that the court not only vacate the awful suspension but to provide clarity for any uncertainty that may be here to to clarify that the effect of penalty rate for model years twenty one thousand after is fourteen dollars