and afternoon everyone our only case this afternoon is southern illinois power cooperative versus the e p a case number sixteen thirty three ninety eight and seventeen fourteen forty two  i know it feels weird to be coming up first for me to good afternoon i'm a please the court my name is dust american far and i represent the united states with me at counsel table as andrea carrillo from e p a is office of general counsel the clean air act determines forum based upon the nature of e p a s actions the statute has three categories first those e p a actions or regulations which are nationally a political second those which are locally or regionally a actions or regulation here the petitioner seeks judicial review of and e t a final action promulgating sixty one air quality designations in twenty four states from hawaii to new york the d c circuit exclusive form for review of b p s final rule because it is either the the first or third type of action contemplated by the act for tipline it is nationally a political as demonstrated by the reasoning in the tenth circuit's thorough read this statutory scheme on judicial review as you know well the center piece of the appeal is the madison gas case and whether that case is a correct interpretation the statutory scheme or if not whether it should be over our position is that massive gas is distinguishable and perhaps the two primary reasons that we've identified that is first that in the rule at issue in madison gas there was no finding made by e p a that that rule to was based on a determination nationwide sc circuit but before we even get to that path we would have to be deciding whether this is a nationally applicable rule that's being challenged a regulation that's being challenge to and that head on about whether madison gases is the correct statutory interpretation that focuses on what the petition says as opposed to what the regulation says absolutely your honor and that i was making that point is because not we don't believe the court needs to reach the nationwide scope or effect of terminations rather that that is just one way of distinguishing what happened imagine gas from what's happening here but to go to the question of whether mass and gas was correctly decided our position of course is that it is not as we explained in our breeze and at the heart of that matter as your honor just that is the question is it the nature of the petition or is it the nature of the challenge that is being brought to e p a s action that determines forum under section seventy six zero seven or is it the nature of e p a s final action or the regulations promulgated by the agency and there is nothing in the statute that supports the argument that it is the nature of the challenge unlike many statutes the clean air act does not give petitioners any choice of where to file so it is not a kind of a traditional venue provision in that sense of affording petitioners or points of choice the clean air act specifies for reasons we discussed in our briefs and demonstrate in the legislative history congress was trying to set forth a clear scheme to provide direction to petitioners on where they may file and that is why you would argue the statute speaks of that petitions may be filed only in certain courts depending on whether  a action or final regulations falls within the first second or third bucket that's identified by the statute so here so in madison gas the court on the one hand said if you have  a national feature of a regulation being challenged that that would have to go to the d c circuit but even that doesn't comport with the statute which doesn't focus on what part of the agency action you're challenging or what your reasons for this was a validly local such as a petition for review of the e p a action on a state implementation plan then it would clearly be in the appropriate regional circuit and that of course we don't dispute the statute makes very clear that actions by  a acting on a state implementation plan submission go to the appropriate regional circuit unless of course e p a makes the nation lights go perfect finding and we're into the third category the court of medicine gas said that that th case at issue the rule presented there and the challenge presented there was an intermediate case and we respectfully submit that the statute doesn't support the idea that there is an intermediate case the e p a action is either the first type the second type or the third t mostly correct that it has to fit into one of the three buckets and air quality designations which of course is the rule issue here it's the rule at issue in eighty k and it's the rule it's the type of rule that was at issue in a number of other different decisions we cited in our brief excuse me and the kind that this court has previously confronted when granting e p a motions to dismiss or transfer what the tenth circuit has said for air quality designations is that i mean even in other environmental statutes there are different provisions for determining forum such as under the clean water act which says where petitioners plaintiffs reside or transact business so the clean air act does establish a very specific reason scheme for determining forum for challenges to e p a actions so the tenth circuit now turning to air paul b designations looked at what was at issue in that role looked at the face of the rules and said e p a is promulgating is applying a an analytic rubric across the country for making these designations and that's the same thing that he has done here and so our agreement is that you on the location of the persons or enterprises that the action regulates and that's looking again to the face of the rule and the case we have here the final rule regulates and air quality areas and twenty four different states it's certainly not a local rule and it doesn't pertain to simply one state for example but again that's looking to what does the rule on its face do what it's what does it regulate what is  not the question of in new york e t a the court gave no consideration to the type of challenge that was being brought to the rule at issue there didn't give any consideration to what issues the petitioners were bringing there and that makes sense because short of the filing of an opening merits brief the court the parties really can't know for certain what issues are going to be raised and there's nothing binding on the parties if they say we're only challenging this little piece so we only want to raise this one arguably local issue they're not bound by that we don't know what the scope of the issues or the scope of the challenge involved is until the opening merits is filed by contrast when e p a publishes its final rule in the federal register or takes other final action it's fixed it's done the nature of the a pick of delivery of e p a s action is not going to change there after so the parties potential petitioners the courts can all look readily and say ok this is where this is how it falls into one of three buckets this is where forum is established by the statute not by any choices made by potential p so for those reasons we submit respectfully that the madison that madison gassed by focusing just on the nature of the challenge what was the arguments being raised or what has been stated in the petition for review that was simply too narrow good afternoon my name's mike show walter i'm here with my colleagues david lawrence ryan granholm on behalf of southern illinois powerful operative to respond to you ph motion generally what we're here to do is talk about a designation we're not here to talk about sixty one separate doesn't nations across the country we are eleanor lawyers who represent southern illinois powerful operative who does business in williamson county illinois and it is dealing with fact finding specific fact i knew which were made related to its facilities which e p a has acknowledged throughout the regulatory process or local which were made on an ad hoc basis which it has the ability to challenge in fact is required to challenge under the seven circuits madison gas decision here in this parameters of the challenge or the scope of the regulation that's being challenge to judge it with a statute puts the focus on the regulation and not on the nature or scope of the petition for  here has said it's national applicable the statutory basis the publication of federal register doesn't really have more than a sense about it says look there are sixty one things they're all across the country would say that that that finding itself is not entitled to any sort of that that's the third path to reaching all circuit review i'm talking about how to interpret this statute whether that's the focus of the inquiry is on the regulation and whether the regulation is nach nationally applicable or the petition for review and what the petitioner seeks review who we would submit that the appropriate focus here tell me how to interpret this statute in general terms in general terms you could look at the first provision as in court encompassing many things like and legal challenges so e p a uses the term call and its responsibilities and the n r d c case versus thomas case talks about something that's a step and what happened there was e t a said if you look at these steps all across the country they're missing this specific legally required elements right now there's a step call going on in d c about start up shutdown and malfunction elements so this seps of many states are arguably deficient and those which fit into that first category the second category what encompass truly local or regional elements one could see in vision certain kinds of funding disputes falling into their clearly said approvals fall into that just under terms of the statute and we would submit that the designation in our taste does too so next is to sit determinations setting air quality regions would fall into that second prong so that the third case is a madison gas case it's a little bit more indeterminate in the sense of it's a local or regional action that could have national thefts well the madison gas case didn't deal with that third trying to do is make sense of the second for vision because they clearly had determinations which were made by wisconsin and illinois regulators which focused only on ellen oil and wisconsin with the states will make things right now and courts do sort of the best they can if you didn't have an indeterminate decision or an intermediate decision like madison das which is trying to deal with the fact that you have truly local rule making with arguments that the government has made that oh look there's budgeting here so it's it's not a zero sum game how is this a truly local rule making the regulation pertains to more than twenty states if at the sixty some odd different regions sure if you can that be if you look at that last to getting there you essential we have sixty one or so separate rulemaking which are bundled together for the purposes of this final rule which is published in the register and there's no findings that really demonstrate the factual rationale for why this should be put together if you look at the rationale is that he did you choose to make these decisions they're ad hoc and what happened is e p a agree to sort of change that the defaults in a case called sierra club versus mccarthy and for places where you didn't have sufficient data they were going to start a new rule making and for a lot of those places they didn't have sufficient data so they said  e regulators do the best that you can take a look at local meteorology data take a look at local you know stack heights and come to us with a determination as to whether each of these individual air quality regions if there and relevant areas over a threshold which would set setting stepping back to the rule making petitioners would argue that the seventy five parts per billion number that is the next threshold that is a legal roll making which would need to be in the circuit that applies equally all across the country but then if you look at the case at bar the issue that we're facing here and the government continues to litigate very similar issues in texas the rule making which relates to us that we participated in that relates to our county in our county alone so it's not a national thing you know the government has argued in its briefs the d c circuits of valuated cases like this before the treasurer state case which dealt with the two thousand and ten you know sixty one element table and a final rule and look at the decisions which were actually reached in the decisions that petitioner participated and were decisions which were made using modeling that was done by the on the e p a as were all of the other sixty one decisions the individual states or locality regulators were doing the modeling to the extent modeling was done not the federal government there's no uniform modeling standard there's guidance but the guidance pretty clearly sad you're conducting area specific analysis the guidance as you consider the day that you have so there's not one sort of overarching principle this tension the tension the courts talked about is the tension that that courts have struggled with for a long time if you look back to the texas municipal power cases the d c circuit case from the ninety's the court said the distinctions here are a little bit a pharrell but what you're going to do is look as the dispute is it predominantly legal or is it predominantly factual for a factual dispute more often than not you're going to end up in a local or regional circuit for a legal this view you're going to end up in the d c circuit and petition or submit it's that that that is really the appropriate breakdown and the way you harmonize that with the statute is you assume a default where there's a factual situation of a factual with a factual rulemaking is going to be a category two and then category three exist for factual situations where you have something like the better than bar rule which the third circuit eventually stripped away and said hey you can challenge the factual determination in this rule making here but you can't challenge this legal one so the fact of the terminations were dealt with the by the third circuit and a legal case continues to exist relating to broader thing in the d c circuit which i think is state right now do the changing ministration i did not see in that to the d c circuit case in pointing to page eight sixty six of that decision specifically footnote five which notes that legal challenges may be more likely reviewable in the d c circuit while factual challenges more likely locally at the border if you will regional circuits courts correct but so the first point of the argument is that this case is much more local and looks much more like a like a set determination than would some of these even some of the other will makings here where there's nothing legal the standard which binds us all together is as factual in the fact that e p a had some guides even the guide says it's not necessarily binding it's as if you took if you were trying to make a cake and you started off taking sixty one chocolate chips and mashing them together you can mash them together but you're never going to end up with your national cake when all you start off with is your sixty one local rule makings and we would say that's what happened here if you look to the federal register notice the assertion that the government's made this is nationally applicable is say that's pretty substantially at odds with both historic separation of powers going back to locke and blackstone and beyond that to most of the other cities which were aware in that area including the excellent case ramsey vs and a bunch of others that we previous so we would say basically where you are is this case is a madison gas case madison gas would be closer to being a national case because there's sort of a budgeting aspect to it where our air quality region stands alone overturn it we'd say that doesn't make a whole lot of sense and that looking to the overall weight of cases from all across the country madison das is a good sound rule which courts if acknowledged for a long time and should hold to now the a reversal in this case would have no impact beyond williamson county we believe the effect of the reserve i mean it's an ad hoc rationale so you can look for cases where courts have a diet substantive y that you know different distinctions the one that jumps to mind as catawba county which was a d c circuit case dealing with max they talk about where one set of new york facilities was inconsistent with another one's but we really suspect what happened is on the merits we're going to say if we did argue you treated us differently than these facilities over there e p a is going to argue as they did in a case like utah the county well we didn't really we gave way to these other factors so your case isn't like that we said given the ad hoc nature of the standard we're applying here that situations almost never going to happen even though you know you could posit that it's going to happen you know it's going to end up being much more like any sort of e arbitrary and capricious determination that you're going to have anywhere on america so the result of a reversal here would be less disruptive on the national status quo than the madison gas case merits determination and we believe so because each air quality region kind of stands for itself it doesn't have affects outside of the region the nature of s o two is good effects we're going to have for that for that pollution for that chemical which are going to be local and local effect and they're not going to have kind of nationwide overarching effect so it's a it's a much easier case that looks to petitioners much more like a standard set of analysis which is listed in the statute as a category two situation than it would in the other categor i'd like to to return to the overarching question about statutory interpretation and then respond to a few other particular points that counsel for petitioner made first the petitioner did not offer any interpretation of section seventy six  seven in their brief that would justify their position here they did not offer any statutory interpretation that would support their argument that final ruling here is merely an amalgamation of sixty one discrete agency actions they did not i offer any case law that supported that there their argument that this is an amalgamation of sixty one local actions and right was basically a starry decisis argument to follow madison gas end of story but at the podium here we heard this legal factual distinction as a proposed circuit was actually looking at mass and gas because that the texas miscible power decision in the d c circuit was actually the consolidated petitions for review of the same rule making that this court ruled on ruled on the merits in madison gas and the  the face of the rule making it rather than to its practical effects that's consistent with what the d c circuit also said an energy cv thomas which said as a launch systems go to the fore to look at the face of the rule to determine its applicability is also footnote based theory of fact versus the legal as being relevant there's nothing in the statute that says legal challenges must be brought to d c circuit act based challenges must be brought in the local circuit certainly legal issues legal challenges are made to e p a actions on steps in the circuit and the regional circuit courts in and numerous decisions challenging e p a actions on steps so it's not true that all six challenges are solely limited to facts and that attainment and unclassifiable the statute doesn't tell you how do you make that determination what information do you base that determination on it just basically says non attainment is an area that's not meeting the a pluggable air quality standard and so e p a has developed this analytic rubric for making those determinations that then takes that nationally a political analytic rubric and a license to areas across the country for making designations right co op says that it's entirely a report and an effect the effect of a reversal on this case mont have ripples elsewhere we disagree for on both counts and for multiple reasons that the analytic rubric was applied consistently across the country and to the extent someone wants to challenge that or raise the issue as petitioner actually just conceded positions council just conceded they do of whether it was in fact applied consistently or whether e p treated different areas differently that's the kind of issue that  national prochoice that congress wanted centralized in the d c circuit because of e p a did not did not compare area or treat areas equally that does go to the question of is e p a s national approach reasonable did e p a correctly interpret the statute or make reasonable decisions p a a the issues raised by the cooperative here which also include those raised in their administrative petition for reconsideration to which the cooperative as never responded to us pointing to those issues which do absolutely go to very big national questions of can e p a even rely on the use of modeling data at all but those issues go to the question of did e p a have the authority to rely on the information that it did and it made that decision and applied it to williamson county so a reversal on the merits of that issue at a minimum would have a factor out the seventh circuit because that would be a binding decision on the seventh circuit and there's a real practical harm in consequences to having different rules apply to different parts of the country for how you determine they're not attainment non attainment has significant legal consequences for how states have to bring those areas into compliance with the ambient air quality standard and if it's easier or harder to be designate a team in one area then it isn't different parts of the country that's problematic and that's another example of why these kinds of national issues how e p a approached issues consistently across the country were determined by congress to be subject to review and th