has tried to utilize section one hundred six of the clean air act to circumvent and express prohibition on their authority under section one of the clean air act i'd like to lay out three and number three section one twenty six was adopted as a backstop to that process not as a primary remediation mechanism but as a backstop when the states failed to act on that seems like a congress has also been from i don't i don't believe congress ever said that i think what congress said was we're going to enact section one point six so that the states who are on the receiving end if the up when state has violated its obligation under  to prompt action by yes there are mechanisms that downwind state can bring if there are by lesions and indeed in the legislative history of section one twenty six congress made it clear that this was an alternative for example to the citizen action provision of section three or four but that three or four action can only come after there's been a violation which now how can we the language section one twenty six said that until and unless the states have acted pursuant to the timetable in the schedule set forth and once again that prohibition can exist and so you know as of today e p a under section one has come in and preempt this process and exercise my already in this ancillary provision one twenty six somehow that gives me this authority to come in and parachute you know and ignore the limitation of my pollutant and one twenty six were enacted at the exact same time as one in ten not as one ten and one twenty six so congress went to the effort to say ok states you have this obligation to prepare bit emissions from the states had had two decades to act and e t a had acted actually under section one ten and so these sets are inadequate these plans are inadequate and at that point we completely agree what's the sense of have the in new jersey filed this petition almost immediately in september and e t a then acted on it within fifteen months when in section one ten is very clear upon the revision or establishment of a standard the june of this year's gift pennsylvania submit a plan in june and it is inadequate n e t a rules that are going to have with that's when the one twenty sixth edition may be filed but again those if you're going to have to wait quite some time to get relief and then you know get some sort of a remedy or you're on the schedule or set out by congress and in this case this is a one hour effort to standards there already has been a three hour f o c standard twenty four as of two standard and all of this is set out in the process in the question is is would congress have given this incredibly rigorous and draconian remedy under one twenty six that applies only to a downwind state but it wouldn't apply to residents within pennsylvania within pennsylvania they have to submit their plan that will protect the air quality locally as well as the transport why would congress say we're going to get this super preference were going to happen in sixty days and shut a plant down with a nine days under one point six when congress said here's the process we're going to go about to develop plans to meet the embitter paula standards a very orderly process in the answer this you get that kind of draconian result because there has been a failure up front we've given pennsylvania time to develop a plan they failed and as a result we're now going to avail ourselves of this very aggressive remedy which i think not for several reasons that if i can essentially send this creates a quote functional prohibition which allows them to circumvent and express prohibition and section one ten but only just to quote from will two reasons one is that it may be my favorite quote in all of the research is the supreme court says congress does not upset well established regulatory schemes by reference to the please the court george simply for the intervenor petition or a utility or regulatory group i'd like to start with some of the questions with judge one just one of the questions that you raised concerning the timing and why you have under the logic of section one ten the very real prospect that you will have an interstate transport issue and section one ten a tutti the interstate transport provision that we're talking about requires the up one state to take action now as mr bumpers explained that process that simply we call a set the implementation plan development process takes time there are number of considerations that all states have to take into account remember the clean air act is about improving their quality but it's also about balancing those improvements with economic growth and development and there are tough choices that each state has to make and it takes time to make those decisions now in the case of this particular standard we don't see still have not submitted a plan pennsylvania we fully expect won't will incorporate limits into its that will achieve the same or are functionally the same looking for pennsylvania to help you i'm not sure you're well that was certainly pennsylvania has not intervened but that does not make the p s action any more legal and i would suggest that what this situation invites is implementation of expressly references section one ten and that is significant significant for this reason the statute does not say what constitutes a significant contribution cannot obtain that there is no provision in the statute that says one percent of two percent of the standard equals nonpayment instead that determination is made through a legislative woman process and this case the states will go through that process and try to figure out exactly how much they need to  people look at that and decide that's right or no that's not right and with respect to regional pollutants not local so for dioxide but with respect to other pollutants which would be governed just by the same rationale that  that one hundred six would be entirely appropriate pennsylvania has now had a chance to act out and if this court of wow is this reading to go forward and this is a president by the way this is never happened if this is a court darcis you you will invite a situation where one and that that does not affect the state's discretion under section one ten two to go on beyond that and develop that set up with the rest of the other sources that state your contention that section one twenty six is any limits let me start here doesn't placing limits on when eighty one twenty six petition can be submitted it doesn't placing a time limit on when e p a can act on that petition just clearly says sixty days after petitions we see an after hearing but it make reference when it does and as we discussed in our brief there are two cases that talk about that and nothing suggests that this because it's linked there that it takes away from from the text and the factual legal issues it was made these statements in that context and you can't simply take those statements from an angle and apply in here without understanding the concept is that the case that the can can adopt this is a congressional i guess for interview nervous on a seat in new jersey i would like to highlight three points of the state of new jersey's arguments my three minutes number one this challenge is not about infringing your honour's are clearly aware there is no other state in this challenge including the commonwealth of pennsylvania having hardening commenting on the real proposal support of the proposal pennsylvania and he did that sulfur dioxide emission reductions but help it's attain the one hour or so for dioxide standard in addition hands of a new indicator that its citizens would realize public health and environmental benefits as a result of this role however even if this were about infringing upon state's rights the public health of the citizens and down when new jersey should trump over pennsylvania's interests and then terminating when and how to reduce sulfur dioxide emissions at this portland plant number two because of the serious circumstances here section one twenty six is very appropriate the portland plant began operations in one thousand fifty eight and since then has had no air pollution controls for s jersey is at the of these excesses over the last i know missions because it cannot directly regulate the pennsylvania plant and number three new jersey will face serious harsh ships with the loss of this portland all new jersey six particularly in the serious situation here in new jersey do not have this rule new jersey would only be left with the very law and very expensive sulfur dioxide step process and there is no guarantee that the public health standard violations will be resolved through the set process jersey citizens should not have to wait subject to these public health violations to find out if pennsylvania will adequately reduce offer dioxide which a downward state can get relief from upwind sources of pollution however john is advocating a position that would revert to the pre one twenty six situation in which a downwind state is entirely beholden to  the up when states progress through the said process as counsel for new jersey just mentioned portland is europe all by itself preventing attainment of the n x in new jersey new jersey could shut down all of its industry in the affected area and still be unable to come up with a plan to comply with the next in the meantime in the impacted areas tens of thousands of adults and children with asthma and a quarter million individuals with carty very hard vascular disease would suffer from  if you're honest about a couple of things or one is like you just point back this people's went through the knocks at call and all of the language throughout that will making that is replete that frankly supports o and she points out that when there is a violation the states have numerous options i can file a petition or want to have sex they can bring a citizen action under three or four they can sue e p a for action under section three zero seven all of those things are available to the states after the state in a violation or a filter of the state i think it's really important your last question your honor is there anything in the legislative history this as this is an emergency remediation measure and the answer is quite the contrary when one twenty six was adopted congressman very clear that this was to address long term failures of state action and to resolve conflicts between the states those conflicts can arise when the states have not been given their opportunity to act in accordance with the thousand process here new jersey hasn't filed its it yet so they're asking pennsylvania in the general and source to reduce its emissions before they even have an opportunity or an obligation to address their own emissions true  jersey has lower emissions that is beside the point in this case we're not talking about facts issues we're talking about the legal framework the final point and i think this is really critical throughout the clean air act the states has gone through that process they had developed and submitted their steps they've been operating under it in e p a years later had made a determination and actually acted under section one can this is supposed to under one ten  to say you've got to change yourself if that point is entirely appropriate if the states want to come in and say the meaning they're sets is not good enough that's going to take more time you've made a finding that there's a violation of the prohibition because the failed act under one twenty six and the in the not said call in one twenty six which were put out together they could have done exactly that congress could have could have imposed much more rigorous emission reductions under one