thank you your honor may please the court the district court in this case ordered the united states to remove a metric ton of plutonium from south carolina within two years the court did not make that determination based on an exercise of equitable discretion but instead concluded that it was obliged to do so under the administrative procedure act and the substantive statute issue in this case other words those who cheer on the chill well it said more than that your hon it in interpreting the administrative procedure act it said and as we've explained this is contrary to how that provision has been interpreted in other contexts the court said that in every instance in which an agency misses a statutory deadline submit that it was not right for the reasons we've we've given but if the court was right if the court in the tenth circuit was right and far as guardians in saying that an injunction was required but court the district court in this case went well beyond that by concluding that a two year injunction was required simply because there had been a true year gap between the date on which congress anticipated that the moc facility would be completed and the date in which it required tony him to be removed from south carolina and there's no basis in as far as we're aware in any court of appeals for holding that you have to set it a deadline that's exactly equal to the amount of time that congress initially contemplated which would be satisfied to the contrary even to him feel i don't think i think the court said it was using that the court didn't feel that was mandated the court just bought two years was appropriate because congress that thought two years was appropriate and i must i'm a say  in looking at the materials it seems to me two years is plenty of time based on the statements the government has made specter shipping plutonium take what sixty six to twelve months to package it and then you put on some years you haven't demonstrated that that was that aspect of it was arbitrary have you well two responses to that first to the first part of your question about what the district court said the district court did not state in the relief order that that set the two year period did not state that it thought this was an appropriate amount of time in light of the evidence before the court did not know or didn't they basically thought that since congress had made that judgment rigidly it's good enough for of discretion and what we want to tell us why two years is arbitrary i'm sure your honor i mean the problem is weeks as was explained in the in the district court is that you need to have an appropriate place to ship the plutonium to and figure out what you're going to do with it when you get there and at the time of the district court's decision the department of energy had not identified another facility that was appropriate to have seven sites in the country and much  south carolina had been shipped from other sites and the question is this stuff has been shipped back and forth what was what some of it came from hannity washington is your own i don't recall exactly where it came from there repurposed and not you considered to be surplus plutonium any more and and let's forget that repurposing i'm talking about plainly shipping a ton of plutonium out put in the containers which i understand is the longest part of the process jordan possible you guys move it around all the time within months and my question is how much long does it take to pack each one ton the plutonium well you're out of the record in this case suggest that this can be done in two different shipments once in the bottom one to texas just as you described but i want to i want to explain why it is that this is that ordering the united states to do this was not an appropriate exercise of discretion in an absolute minimum the district court should express the considered the reasons that this might be problematic let's start with the original deal south carolina really wanted all this stuff in south carolina they had plutonium shipped there they had a plant built i created jobs it was good for the economy the congress passed an act creating that at the behest of south carolina and there is a clause that says if the plant isn't built in south carolina doesn't want the ton and there's the statutory provision that issue here is that they have to then ship out one ton what is that every year two years or are you going to speculate that they have to ship out one ton by twenty sixteen and then up with tony and that's been shipped to south carolina in a certain period by two thousand and twenty two and you didn't ship one ton but the thing that's correct your honor we're not disputing that and the question is what do we do now and i just want to explain what it is fact that you have to process this stuff in south carolina and oxidize it and create create it into some other deal and that takes a long time and you made a very good case of that but the question in this case is not whether you have to process the tone human in socket line is whether you just ship it in its present form to some other place and that was done to get it there and it can be done to get a lot of their your and your proposal containers that met department of energy requirements thank you ron and there are two aspects of this that that complicate it that i'd like to lay out one is it's not just a matter of packaging it's figuring out where it's going and there are different types of plutonium there is a actually a variety of of forms that plutonium can be and different sites are certified to receive and to store for different lengths of time different types of plutonium and we at what happened are you saying it's impossible you don't have any place you can put the plutonium your honor at the time of the district court of the record before the district court at the time of the injunction declaration suggested that there wasn't another site that was suitable for storage of the plutonium that was in south carolina the reason that there's been a change is that subsequent to that there was there was a determination in conjunction with the people who  plutonium for defense purposes that a limited portion of the plutonium in south carolina close on that one ton yes could be could be repurposed for programatic purposes and then could be sent to another possibility for what's called staging where that facility wouldn't be able itself to process that we tony and so it will then subsequently have to be transported to either back to south carolina to sell or to another facility most likely in new mexico in order to be actually disposed of now there we have not identified this that had the right certification for indefinite storage of this material and so and identifying such a facility and in some cases that would require constructing a new facility or taking other actions that would take actually it or something came from those plants i mean some of the places that they came from aren't operating up anymore and some of the things changed and what the record ones which ones i didn't hear all that stuff mention briefs or in the record yard what the record suggests is in the country declaration it stated that there was not at the present time another facility that was was in a position to receive this tony i'm asked or are you representing know whether facility had room for one t was no place to which one ton of plutonium could have been shipped the government none of the seven place big government had not identified a facility asked by identified well it is as a matter of fact well your honor the reason  reason that's a tough question to answer and i apologize that it seems like i'm not answering you correctly and just want to be very clear that the question is whether there are you know this is a miss is obviously a highly dangerous material and it comes in many point but we haven't made that point you talk in generalities the tone is dangerous and different kinds and we have to find the right place and well let me let me tell you what was said your honor which i think maybe i'm not sure it's exactly responsive your question i apologize for that but let me just be precise about what was said they did not have a facility that was certified and ready to receive a metric ton of plutonium from south carolina at the time of the district court's decision and but you can't even even if it doesn't take that long to ship it repackage it there is a certification process you have to determine what are the conditions in the facility are appropriate for that type of plutonium and at that time and for the right amounts and they have not identified such a well so what happened subsequent to the district court's order in this case your honor is that they figured out that there was there was a an amount of tony and close to a metric ton that they could repurpose for defen purposes and then they could stage it in and nevada for a period of time which does not require as much background effort as moving it to some other place for permanent storage but there was close to one time who said had to be move mocks it or whatever or you can do whatever you can do it with tony or find a site where you can store permanently well your honor we the department i guess it's two points one the department is not and should not be ordered to move  with a lot of expectations it was an act of years ago about expectations about what was going to be able to be done and there are lots of cases with statutory deadline argue that the one i mean you can make these arguments in the abstract or york i mean you could not as of two thousand and sixteen sent out a t ternium well your honor it turned out that almost exactly one john answered my question was it impossible for you guys to ship out one time of the tournament two thousand and sixteen well your honor we now know that it wasn't based on the work that was done subsequent do you believe it's not impossible true what she said was if she said i don't have to make a determination about whether it's possible i don't see i'm over my time i had it right didn't she said i don't have to make a determination right now about whether it's possible or not if you think it's have it asserted in possibility your honor i pod or her i pod does it for going over my time but i would like answers was i'll i would yeah i would i would like to i would like to address that specifically and this goes back to the point that i was trying to make earlier identified is a way which was which at the time of the judge's order but you know had not been nailed down as a way that this could work but they've we've worked really hard in response to the court's order and come up with a way to do this and let me tell you the drawbacks of that way to do it and explain why at an absolute minimum a district court should consider those drawbacks and determine whether it is in the public interest to order an injunction of this kind  you know at the time what he was saying is even if we can identify a facility to ship this to temporarily what we would be doing is exposing unnecessarily our workers to radiation because what happens is every time you manipulate plutonium every time you take it out of where it is stored every time you repackage it every time you transport it every time you take it out of those out of the containers it's transported in and put it somewhere else for storage isn't that argument or closed by the statute the statute basically said if you don't complete the mox plant you have to ship out one ton that's what congress determination was and they're telling the agency to do that now so that was a risk moving  risky all the time wherever you go there are risks everywhere and you identify but you have these containers that are pretty high tech containers and you have people working with these suits that are are generally pretty protective but congress took that risk in cow congress said if you don't complete the plant shipped out one ton by two thousand and sixteen that was pretty clearly the policy of the united states and now the question is the agency hasn't complied and the district courts of will comply within the two years a congress set up and you're saying oh that's impossible don't you shouldn't you tell congress well your honor and in any case in which an agenc deadline then do not miss a question you say it's impossible to do it within two years and i'm saying that's was the original require well and nothing's changed well a lot of things have changed your honor but did you and the judge said if you want  to me but yes but again we're not aware of any circumstance we've heard you can be rich yes but we're not aware of any circumstance in which and which another court has said i'm i don't need to decide whether it's actually period is not totally arbitrary the two year period was a judgment made by congress after hearing from everybody including south carolina who initiated the statute that's number one and then number two you have produced evidence that says you're likely to comply with the two years based on your efforts since the order and then of course number three judge king is noted if it turns out that what you plan to do doesn't work you go back to the district judge and say we need another six months or we need another year because of this problem or that problem and i'm sure the court will exercise this discretion in the view of the circumstances based on the case make but to say no court has done this i mean every and junction this unique to us circumstances well let me take if i could your considerations in order your first consideration was that the two year period was set by congress and the question is whether it minutely the agency has has missed the statutory deadline that was set by congress but the question is whether then you just figure out the amount of time that congress gave you and then tack that on at the end and  measured tone and the question is your same measured time that congress is impossible well let me give you an example from the d c circuit in the united mine workers case that we cited in our brief the statute said that the agency was within ninety days of the completion of a hearing to issue a final rule about was the statute and then eight years went by after the completion of the final rule from one thousand nine hundred one to nine hundred ninety nine eight years and then somebody came into court and said you're too late and the court did not say ok well congress said ninety days so we're going to say ninety days what congress said what the what the d c circuit said was please submit a plan to us and and the plan that was sent  took several more years and then the d c circuit said and we're not even going to order you to comply with that plan what we're going to do is or is retain jurisdiction we're going to have periodic status reports at the dates that you identified in your plan and then they can come back to us if they think things are too slow and is that analogous to seems to me a mallet gene would be the agency couldn't comply by to build the plant and they haven't course or they couldn't comply by two thousand and sixteen because the plant was being delayed but the enter the interval that congress created the two year interval is just been transposed as a starting point for the district court and the district court directly has jurisdiction that issue an ongoing injunction you can go back any time to modify it or revoke it but the question i think your best question arguments are whether the court understood the scope of its discretion what was mandatory and what was discretionary and that's a very tricky coin in this case because you have a statute which mandates you have the a p a that says if it's on lawful have to issue shall issue then you have the normal discretion attaching to any injunction which discretion and i don't know what you advocate the judge felt pretty much compelled in this once and said maybe he didn't recognize how discretion in light of all of the facts it would be appropriate to issue a two year deadline and as dutch king pointed out some of them our question is are you objecting to the entry of an injunction at all or you objecting to the two year period or both well we'll both what's your objection to the entry of an injunction at all well i mean when you say an injunction at all as made mandatory injunction telling you have to get a time out i mean we don't  exercised abused its discretion in issuing an injunction and my question is is an injunction out of order altogether well your honor the question the question of whether the district court abused its discretion if the district court made an error of law time period both because the district court thought that it was compelled to do both of those things i'm thought the court made a judgment call about the time period because congress put in two years i think that's appropriate but if it to make sure i get back to them the second issue was oh well now it turns out that we can do it i just want to explain the differences between what we're doing now and the disposal option and the district court made quite clear in an earlier order to see think race that what you didn't brief disposal is not the issue the only issue is remove all shipping it out of the state in its present form there is no transformative requirement preparing them for this or preparing for your brief kept going into the i think you made a good case for the notion that takes a long time to reprocess this stuff but her argument was her order was just shipped out in its present form it came in in its present form and it be shipped out and  also that's the question your honor and and i guess but district court recognized in earlier order that it was not proper for a court to tell the department of energy how to move the plutonium  right i don't know the exact figure but certainly a significant number was shipped in yes and they were shipped what from the various plants nuclear plants in the united states set aside the farms right and so they were shipped in a form in a wo issues here on our one of which identified earlier which is you need to have a facility that right at this moment is partly equipped to receive the plutonium i mentioned earlier then the second issue is there is a relates instead of talking with the problems tell me that you didn't have a site if you say you didn't have a site that could receive one point but of course you have to have a site to receive it you have to have an ability to drive a truck you have to have a truck driver oppression is did you have a truck driver did you have trucks did you have containers and did you have a site where you could store and even temporarily your own i'd like to get this exactly right because i don't want to mischaracterize what was said so i'm going to  appendix and i'm reading from paragraph twenty five of the country declaration i think this is responsive to your question but i don't want to mischaracterize it in order to transfer one metric time to a facility other than wit whip is where the down blended plutonium would go do you know we would need to identify  another of location constructing facility modifications or building a brand new facility would cost tens of millions of dollars and take years to complete it's not just hypothetical it's not only just what we have seven facilities the plutonium came from those facilities and the question is ok it takes months to charmin it do that to do those months and then packing to set it there i mean you have you have quite a few to consider but you keep telling about the possibilities and what could be involved and i know it's complex the question is you have to go back and say we don't have well i don't have room and we don't and that in the issue if you have to build a new facility you've got a really good it wasn't something you found out in two thousand and sixteen you knew this was coming the whole time you had to end to support this and part of what a trial court was facing when facing the situation is you really are you really serious about following what you've been told to do the fact the matter is nobody wants this hutaree i'm greed you're a me i'm here whatever tony nobody wants it and now you're stuck with a situation of w to do with it and when the trial judge to face what is here as judge niemeyer has been alluding to the real question comes down to is did you establish every element to show it is impossible if you could have done that probably to judge could have avoided a backstop of seeing impossibilities but you didn't say it was impossible you said it might be and except for so you get left over net top but even now that you're here now you've got some equitable type situation it doesn't come across too well and there seems to be no indication of a desire to even move this stuff at all because if you can just delay and delay in the late and why would congress even have it in at the beginning quite being is you've known is for a long time all those much you're talking about you know of this thing has been going on twenty some odd years and you know what it was when you were there you knew it was dangerous to move and all this was done when that agreement was ma so so while while we're here now why don't we just let this be and then you come back and let us know if it's impossible let the trial judge know that is just two responses to portions of that question one in terms of whether the agency knew that this was coming he agency has been working on bass they did an environmental impact statement about the diluted dispose option and they did a record if there is an agency been working on knowing that in two thousand and sixteen it would have to remove one metric time well i when did it start working on that i mean it's been working on removing plutonium do not start work as you said much you told me you take it take much to do this that so when when did you start in two thousand fifteen they issued a thousand page environmental impact statement they've been warning if you are no longer going in two thousand and sixteen you would have to move a metric ton if it if it had not been in line with what you know that i mean the stack it's been in place when did you know that can't do it well no your honor what they're trying to do is is to figure out that this is we're talking about here most of the other agency to a case is there about putting out a rule or making a designation not a delay that delays statute doesn't say that this statute says basically you can have that course you can pursue that course but the statute says if you don't build a mock syllabi you have to remove one ton of plutonium not dispose and diluted to remove it physically from the status of carolina that was part of the deal and it turns out that if you address that part it looks to me based on my review and i read quite a few of these things and the facts relating to it looks to me like that's not even a difficult thing you just identify the plant that you're going to ship it to pack it up they say that's going to take six months and drive the truck which is take a few weeks i mean what i mean what were the country decorations says that it would take six to eighteen months depending on the complexity but not analysis to complete the safety analysis to support the transfer of the one metric ton so that's what that's been proved false already because we haven't document you file where it has the whole proposal laid out with this statement and looks like we can comply yet because what happened was subsequent to the declaration and subsequent to the district court order they had then to fight another pathway but i just i want to go back to the question you're carrying on the policy of the agency which is to engage in dilute dispose of tony that's a good policy and that may be a way to do address a lot of the problems we have in store tony that purpose and the deal cut with between the state and the congress was to get one time out now everything you say is there all the impossibilities and now doing that or the improbabilities difficulties or maybe they are but those were presented to congress at that time or what they were more than that i mean the specific difficulties we're encountering now were not because they couldn't have been known at the time i mean thinks change but every time there's a statutory deadline this is not a statutory deadline this is to remember this is not like building the plant with them possibility this was a back drop remedy for failing to meet the remedy which is to get the money and back out because it was shipped in and i don't understand why you're resisting so much the notion that shipping plutonium out is any more complex than shipping that well i mean the point about the facility is critical to where it's going to and oh how do i want the department of energy to be spending its time do i want the department of energy to be trying to find another facility to be doing a safety analysis maybe it turns out at the end of the safety analysis that it's not feasible to send it's that other facility can't dispose that was your whole message because it's so complex it takes time and your points were well taken and then you say we act identify a site well sure you have to do a lot of task you have to truck is complicated by the fact that there have been developments since that this trick or issued the order and and so at the time that the district court was deciding i take your honors point that we that we have to make our case for why the district court in the exercise of discretion should not issue an order this can i take your point and we did we made a submission i would urge the court to look at it it's quite detailed it is not to say there's a lot of things we have to do it talks about the problems associated with that the difference your honor and i think it's critical if you're shipping it to a place where they're going to where they're going to dispose of it or they're going to store it and so you're actually accomplishing something and you're moving it to a place where  where that actually takes you a step closer to what the overarching goal of the statute and the statutory scheme is which is to deal with our surplus plutonium in the united states and so you can make a judgment that it is worth i mean i think everybody agrees it is worthwhile these people are doing good in this but those of course they're exposed to radiation but it's worth it because they're accomplishing something they're getting somewhere that's a policy our own policy argument we can't handle that when congress as to move it and not dilute dispose of it you say it's better to buy most of it and every time you move it there's risk sure there's risk every action you take as risk your honor but that was that's there in the statute isn't it your honor i submit that when you're exercising equitable discretion yes you can consider arguments of that kind well you and there's already did it why don't we hear from the other side we're on a little behind here and i appreciate the c know we've we've pressed the government on on what it's done and of course mr tenney doesn't control the whole department of energy and these are complex problems arose a lot of really big policy issues and we're on now or a point to your question i have is the district court seemed to feel compelled to issue the injunction and then maybe go to a court is ask the court make a judgment call and the question is how much discretion did the court have and the district court may have cabined its view of its authority too much such that it did something that in its discretion it the extent he did what should we do in that case i think i think you could find based on this record that the district court did exercise some discretion to exercise quite a bit of discretion and that it should be  laws and the state was originally arguing that the plutonium should be removed immediately this warning would be made in twenty seventeen and the district court said no i'm not going to i'm not going to require that be removed immediately even though over a year or two past the deadline occasions and then when you take it all into account on top of that or of the plutonium removed by january first two thousand and twenty which in effect was a four year extension because it took two years without one do to vote for the district court to get to that point issue the order so she gave yes maybe she had limited discretion to deny an injunction but also yes having decided that she had to issue an injunction she exercised a fair amount discretion in deciding what the time period would be her from the portage didn't tell the agency how to do it get up and i've got to hear your your recognition that agency is working hard it looks to me like their efforts on the nipple was and then a serious response to the court and not only that and policy and and environment and it has to be done right and i'm sure they are not compromising their standards in that regard i mean this is this  is obviously there were other policy considerations for the statutes i can remember back when south carolina was soliciting the business and and got the savannah river project i to handle a serious problem internationally and nationally and so i'm not demeaning that many way i think the focus in this case is really a fairly narrow one there was a kick out option remedy of removing one  language of the a p a do you think the court has still some discretion given circumstances did in my head i can't find every case i've read that actually deals with this specific point there aren't very many of them but is there any disagreement about a part is that he says to the scope of the remedial order trial judge had discretion and that discretion in and of itself could possibly entertain the perhaps since congress first came out with i would not say that she was absolutely positively bound to do it to you or she could have gone on longer of sufficient to organize it in though on the theoretical aspect of it because if your position relief i think we would we would say that of course this hypothetical that she did she did have a duty in and she did have a duty to compel agency action wrongfully or wrongly with just in doesn't mean just not open ended but you know this point it doesn't seem like you need even go there it seems like you could simply embrace that possibility so yes there is a she has she was compelled to in an injunction but because what she did have discretion which encompasses all of these equitable considerations that the apartment wants to happen in and then are you essentially well she did she had discretion should she wait back and forth she looked at the two year and want i want you to understand and i've already said this i very much appreciate the difficulties in the task that the agency has and the sensitivity with what we're dealing with on dealing with the tony  argument was discussion about how to properly balance the fact that congress had issued this mandatory deadline the difficulties that the agency might encounter the safety harms that i've identified and our core submission in this case is that that balancing is something that should have been done by the district court in the first instance and that the district court was operating under a mistaken impression about the scope of her discretion and because she was operating them under that mistaken impression her injunction was infected by an error of law and that for that reason even if this court thinks that it might if it were empowered to make these detainees decisions in the first instance might ultimately have issued the same injunction that the district court issued that's not really the question the question is whether the order that the district court issue was infected by an error and lot of law we submit that it was and if she had been an intense search would she have been in there oh no seeing that she would have yes your honor for the reasons that came up toward the end of of opposing counsel's argument even in the tenth circuit even if they say you have to issue some injunction there's still discretion to determine exactly the nature of the injunction and doing so you have to  injunction and then there are fields further that well now have to fashion a remedy and the scope of the remedy is within her discretion can you not achieve the same goal that you wish to achieve by saying well she has discretion in the first instance i think substantially you could i'm i mean we disagree with far as guardians in the first place so i don't think there's an inherent contradiction in saying that but but it certainly true that i mean if she was in the tenth circuit and she said well the problem is if i say two years they're going to have to do it in this way that is wildly inconsistent with it and see policy end with odyssey's that congress seems amenable to because congress is encouraging polluting dispose and would expose people to unnecessary risk because he would transfer it out to nevada and then when you were finally ready to get rid of it have to transfer it all the way back to south carolina and she could have said ok well asking them to do it in two years would require them to take these steps that aren't appropriate in the exercise of equitable discretion so instead i'm going to give them five years and she could have done that and then maybe they would be out here arguing that was an abuse of discretion and we would be saying it was fine or had exercised all of that and she had all the record before her including the more recent evidence she would say no i stick by original view but i'm actually exercising discretion this time because the fourth circuit has informed me that i have discretion to exercise suspect we might argue that it would but obviously we would have to look at the reasoning that she engaged in and figure out whether she had a legitimate reason for doing that you know we were strenuously argue that it's inappropriate i mean because she recognized that she's not supposed to tell them how to do it and if you do a timeframe that constrains the way that they do it and makes them do it in this way that clearly from the standpoint of safety and plutonium policy is so optimal that's a big deal and i think that almost entirely on this dilute dispose and all the activities that are required and that she didn't consider those and of course those weren't at issue at all if she if i were the district judge and sitting with the record i see force now  i would probably rule you out of order and talking about those those are policy decisions that you can carry on the real question is just the simple task of removal and that was what issue was the status of carolina's trying to enforce a statute that says remove not process and the question is what did remove maine and the and she picked two years and you say it could or could not be abuse discretion and she did exercise some discretion on that although she you say she i don't think she felt mandated by the two years big by congress i think she decided as a matter of discretion that it was appropriate because congress had done it that way but i understand your point but i just want to clarify i don't think the whole discussion about the proper disposal of tonia and the obviously and the mob's plant is what are we talking about twenty forty nine right yeah i mean you know obviously be be hearing more about that shortly but just in terms of i determined to respond directly i think your question suggested that the question of whether just removing it as opposed to do including dispose was was before the district court or it was before but i think your arguments to the court kept focusing in on the dilute dispose they did in your brain on a and i kept one brain i understand that process but that doesn't have anything to do with the removal from the state attorney well what it does it says ok we get rid of it in another way  but well i would just i would go back to the country declaration and if if you go to page fifty four there's a section of the declaration which is entitled reasons why do you always decision to continue down branding which is a synonym for to dispose for disposal that better than remove all that's legitimate what congress said remove one time there's a lot of other times how many times you have a thirty seven to zero i mean the only four that's actually the exact number of times is classified but and you can transport it an undiluted form to another facility who are after the only thing that was ordered we package it up and remove it but but then the question is i mean the statute doesn't say you have to but let me let me get at it that would be something that would just record well among us let me give a hypothetical your honor suppose that i suppose that we could do it the way exactly the way that we're doing it in two years or we could do to have to touch this but tony i'm against it it's not going to be any more have consequences and suppose we could do that in two and a half years and the court issued an order saying two years we would say that's an abuse of discretion because even even though it says removal back on the court  are different and i know so if you came back with your hypothetical which we don't have for us she could insist well the status is removed say loot and process and then removed she could say that and then we'd have to decide whether in saying seven or whatever it is that's a decision that the district court should make recognizing that she has discretion to make a determination and then it should be reviewed by this court for abuse of discretion and what happened here instead was that she made a decision thinking her discretion was constrained  that reason she i think she taught it was constrained in some respects along the lines that judge when explored that is she thought she had to enter an injunction but i think she recognized the scope  i mean she certainly didn't express the take account of the practical difficulties suggests that come back to me later if it's impossible and we submit that that also is something that she should have done she listened to the your first one ok will will wrap this one up and come down