determination of whether any particular action by the e p a under the clean air act is of national lampoon ability on one hand or on leave regional in local apic ability on the other hand hinges on the face of the regulatory action itself here e p a made a decision to allow california to enforce its emission standards in the state of california as the face of the waiver page fifty one twenty one of the federal register notice quote the only decision taken by the e p a in the authorization proceedings the decision that permits the state of california to adopt in forced it regulations close quote if that is the only decision taken by the state of california that decision only abide by e p a that decision applies only in california consequently given to this court into the d c circuit headed had it made a finding this this locally or regionally applicable decision actually has nationwide scope in effect but  didn't make that finding here e p a made a finding of national applicability and then finding it is b fly by the face of the waiver grant the language which i just read consequently this court should transfer and not something else so the so the term in the in the act needs such california quantitative emission levels and not the california program as a whole now why is the term staters so forth in the plural as opposed to the suit you look well as this court has observed from time to time california is required to apply for waivers from federal preemption we never even wishes to enforce a new set of california mobile source mission standards and so consequently from time to time when e p a receives a waiver application it must determine whether california has a compelling an extraordinary need for the standards set forth in the waiver application and i think it's important to note that the we were applications so usually do not include only one quantitative mission limited but there are several quantitative mission lutes in other words several standards for each waiver application and this case is no example order it is to why didn't congress use the words such california standard or each california state because your honor ay say that but the general rule for a statutory modifier is that it modifies the immediately preceding or succeeding don't i don't believe the that there is your honor because the the plain meeting of the the language use standers refers to quantitative emission limitations and there's nothing in the statute that indicates that where there are quantitative emission limitations e p a should determine whether the entire program is necessary what if we thought the use of the plural standards and the use of the phrase in the aggregate rendered a section ambiguous that what would we do if if your orders came to the conclusion then the briefing has an extensive analysis of the fifteen decisions by the u s supreme court in king neber will and michigan v e e p day we're clearly the supreme court stated that if the agency's interpretation is inconsistent with the statutory intent history that the legislative intent is contrary to the interpretation of the government then under those two recent supreme court cases no difference should be given to the government interpretation which page in your brief has the vast b we discuss the legislative history extensively on pages i'm sorry i'm not able to pinpoint one specific sort of mock you get two or three it's ok but i need something we need to overcome the ambiguity of the language of the statute we need awfully clear legislative history so clear that no othe reading would be permissible that's what chevron tells us so i'm looking for something that would make the e p a s reading impermissible i believe he is reading these in permissable because of the high republic thank you thank you well it's it's important to stress here are that unlike california which has the authority expressly in seventy five or forty three the e p a does not have a corresponding statutory authority to enact its own rules for in raised in the first and second circuits and we have to brief those issues in new york state massachusetts perhaps for a month as well so it's been adopted in certain parts of the country i don't know at this time i'm happy to provide the court information on the number of states trauma nation of national put believe we acknowledge that the those are the words that were used are our point to the court respectfully is that it's congress's intent to honor the plain intentions of each day in this determination anything else with regard to the purported determination to suggest that they misspoke in the determination no your honor what he can do here is use a phrase that is used historically frequently including in if in taking such action the administrator finds and publishes that such actions based on such a determination i mean is this like somebody in the e p a misread the statute and used the first sentence  to make the determination you want you have to per pick the correct term and they didn't would use quite astonishing i'm wondering did they say anything else anywhere to suggest this was simply a mistake that they cite three that they work or our corner any court has accepted the proposition that you're now spreading that a determination on this a paragraph or three can be stated incorrectly and we still accept that your honor i don't think that any venue something and so we ought to know because they publish something it's a determination on the subsection three that's the best shot you have to show us to some confusion there are right and i regret i don't have really not trying to shoot that this was going to be a problem not you personally but out of this one wants a challenge got raised once the motion to transfer once the problem arose in the mind circuit i'm not sure there was anything barring the e p a from room or even making another finding right and really has it only goes to the venue question that doesn't go to the substance of the waiver question why did the government not fix this problem we're we're now at the oral argument in the co appeals after the case in this court of appeals to the case began on the line circuit came over here they held their case it was it was brought in both circuits why why is there something about this statute that would have binary choice that the the the agency has acted in a manner here consistent with its past practice something that has not been challenged this case has for better or worse highlight importance to e p a of using the exact phrasing i dare say that it's important that he gets the message that this course delivery but in terms of its practice in this case is fully consistent with the way it is operated in cases that are not focused that that by making that decision that working concluded that our best sat on its rights to have its case here in the ninth circuit when you intervene you have the right to have your arguments heard in that circuit in fact we felt that intervention requires standing article intervention in that case is being sufficient to get its itself into court then the waiver argument we raise is is addressed and it is your for the questions from the court ok thank you sort really isn't our bailiwick but i would like to head just with the court know that california does take the position that even though we're on the other coast this is the proper venue for waiver decisions to be heard nationally clickable for any other state to then join in and adopt the california standards so it's not so much a matter of yeah i mentioned that was a little hesitant but i would like to use the three minutes or the remainder of the short three minutes i have just to correct a misstatement and petition brief that they use as a court for their argument california off road diesel standard is not needed at page thirty of petitioners brief they state it is undisputed that there are only two areas in california in one attainment mainly the south coast air base and severity of him in fact and the only two with a nation designated as extreme four pm two point five that are both classified as severe which again is the highest classification and the only two in the nation i might add so while it's undisputed as petitioners do state that these two air basins are in non attainment for both ozone and pm two point five they are in no way the only two basins in california in non attainment in california we have sixteen making record that is that they say there was no compelling strike at the words here correctly no compelling extraordinary conditions except in those two places you are correct that was not raised in the rulemaking as it is we we could observe in any of your regular says that they received no comment that address the fundamental question and i believe it on this question in that case where you don't have to talk any more about it because we were not allowed to consider i would agree with that and the testimony in the record from counsel clearly specifies what they are raising and it is not this issue so that is not something you would argue for the question thank other there was one other airbase and a south as well as out something coast south coast yes but did you make an argument before the agency that there was no compelling need here because those were the only two on one of those ok i'm not buying the broad covering the specific you made a broader argument the question is did you raise these specific points specific points about these two to the agency so they could have addressed that your honor we did great is the fact that there is not a compelling extraordinary need for these california standards in the it in the facts to support the waiver decision other under either standard and that one set of facts on the fence of the waiver document is that those two areas were not a team that eeriness for national indeed air quality standards but there are standards are necessary so that there would need to be a compelling extraordinary need as to why these standards are necessary in those two areas cited by the government but there is no rational connection between the facts found two out of the least fifteen