texas and to a much lesser extent oklahoma a far cry from nationwide the local or regional character of this rule making is plain from the structure and process of the rule making e p a held hearings only in austin texas and oklahoma city oklahoma not in d c as it typically does for a nationwide rule making no other states commented on the rule and they had no reason to think they should it was intitled approval and promulgated in a simple imitation plans for texas  action was the action in this case so the action here was partial disapproval and partial approval of the texas a so that's the action and i'm cutting you off i didn't want some short answers to this from trying to be  respectful of your time if such action is based on a determination what is the determination in your mind that the determinations upon which those actions could be based are e p a s justifications for register and on numerous occasions e p a done it identifies determinations it made for example it determines the texas for factor analysis was inadequate and that was the basis on which they took the action of disapproving portions of the senate regarding the which seems to me that that you're right that the action that the determination were looking at is not whether that ruling had nation wide scope or effect but whether some of these underlying determinations regarding and i named two section two clean air act  if they should we made new determinations about i'm going to blank right now one ten a and what it said in one sixty nine or some such numbers like that is is that right is that what we should be looking at and so far as the determinations are concerned and whether those had a nationwide scope that is what u p a urges you to look to but those clarifications are not in the final roll standing alone the discussion of those sections in the proposed rule is not an agency action and it's not possible to find something in the final action that would actually be challengable as a final rule making with respect to these you know these alleged broad terminations it but it is your position that we are to look at the determinations that on the basis of the challenges rule and whether or not those determinations have nation wide scope or effect or act so the actual determinations that were part of the rule making is what we look to determine nation wide scope for effect that's correct and in this case the determinations upon which the actions were based were all staffed specific to texas and you can see this numerous times in the language that he uses in the federal register for example they said the reason they hadn't disapproved other consultations in the past is that the particular facts of the situation for texas and oklahoma did not arise that's on page three thirteen of the federal register ok if we ask the e p a explain which of those have a nationwide scope or effect and they say well they all do and they don't get specific at all do we give any deference to that statement by the p s a the standard of review for section three zero seven view one should be denoted because this is a this is a jurisdiction and that new provision  and this court is better positioned to make such determinations is a determination a fact finding or a ruling award so in this case if it has not offered fact finding this is not a case where we're arguing about whether the facts of the rule are you know an effect pollution traveling one say versus traveling for states where he is expertise might come to bear instead all they've offered is to legal conclusions one a mechanism to interpretation that there should be nationwide scope in effect any time two circuits are implicated and the second because they say these broad clarifications were put forward even though they were just never put forward in the final rule but the facts are subject to texas so i don't see where the two circuits are involved maybe one target three states so you so texas is is the center of the a plus ability of the stroll to be sure the eight facilities that are regulated are all in texas and oklahoma the only thing that the federal implementation plan does there is look at their reasonable progress goal which is a nonbinding target as  e p a has acknowledged on on numerous occasions and they've revised that target but again based on what they expect the emissions reductions to be from texas oklahoma doesn't have to doing oklahoma doesn't have to do anything and they haven't even intervened in the tenth circuit case that's how little they are interested in this case the tenth circuit case is only the industry petitioners who are also here today and they all support transfer to this court and think this is the appropriate court and do this any other state have to do anything as a and the d c circuit has clearly said in the american road and transportation builders case that there has to be something more than sort of a general presidential effect e p a is overall going to try to act somewhat consistent from sip to sip that that's that's a principle although they've acknowledged that the original has case in particular that there can be allowance for some variation among regions even there i don't set the same levels for different regions they don't set the same levels for different regions and they allow for for variation from region to region and even to the extent that they were to look at what they've done here and have an informed future sipper all makings that doesn't distinguish this from any other set and we know from the language of three of seventy one that the default rule is that sit challenges has in the past is familiar with their unique market in texas and is familiar with a lot of the underlying facts that are highly relevant to this case did the regulations i mean was there any determination made about  submitted along with the commons a report detailing some of the concerns with river liability and through the declarations you can see that those concerns have remained e p a simply just dismissed these concerns as unrealistic based on  it's an area that the e p a does not have expertise and for gives the is the federal grid reliability expert a commission or a report from the synopsis consulting company that as as our declarations show is just riddled with complete misunderstandings of texas competitive market just at the most fundamental level so they refuse to cooperate or reliability safety valve or anything of that nature right thank you if you do get here is that how you say your name please the court stephen g there for a limited generation company i'm also presenting the argument on behalf of the other non state petitioners and intervene or supporting petitioners in the case your honour's i'd like to address two issues first e p a s claim that its finding of nation reviewable and that this court has no role in determining its own jurisdiction have been you and second i would like to address our motion to stay your honor just like in the second sentence to your question judge you'll write in the second sentence of seventy six or seventy  this court determines it has determined if an action is locally originally clickable so to him in the third sentence this court determines whether the action is based on a determination of nationwide scope in effect the court does this without any deference to e there's at least three reasons why does it get deference on this question the first is that e p a doesn't have expertise in a chartering judicial review provisions that is the province of the court these are purely legal issues there's no scientific or technical issue where the agency might have some expertise so categorically that deference is appropriate but in this also among the discussions we had just a moment ago as ms bennett is one of the relevant determinations here and to the extent the a has announced in the federal register the determination or or new interpretations of certain sections of the clean air act and interpret in multiple conflicts provisions of the original hayes rule does seem to me th expertise on whether those determinations have nation wide scope whether they will impact the way we make similar determinations on similar issues in other states is that expertise relevant here works and they very much do have expertise regarding the effect that may be wrong and that's what you're arguing i'm not disputing whether you can show the roman but i'm just warning about you're saying there's no and it's not necessarily said any different but what if but it's another thing to say there's say that it's a nationwide or that it would impact on the nation no your honor interpretations are not terminations as mr bennett was saying the determinations in this rule are things that have operative effect with respect to texas and in fact one of these so called interpretations where he p a says a state has to consider four factors for outside the state doesn't even apply to texas e p a says in page three of none of the final rule the texas in fact did that so these interpretations really had nothing to do with the ultimate determinations which are under the facts of the texas at that e p a thought that that was inadequate that even if there was some deference to determine the determination stage there's nothing in the specific determinations in this rule or the texas it was inadequate in that if it was required the interpretations that a p a offers of its regulations which by the way the only time it's been said that those are legally binding on anyone has been in the briefs of coun conflicting inconsistent positions e p a says two circuits is dispositive but we pointed to the michigan minnesota example where there were two states in two circuits and e p a supportive review in the original courts just last week e p a issued another involving ohio and indiana two states in two circuits the six in the seventh but he p a found again that would be was appropriate in the original course of peel's and they did that in minnesota and mi never done this before these cases have perceived it as a matter of course in the original courts of appeals and as we started this case the only one so even though there are other interests circuit interests circuit says it wants the e p i publish its finding only the d c circuit can decide whether the action is actually based on a determination of nationwide scope in effect you are there's no basis for that argument in the statute just like this court  now would like to address our motion to stay if i if i may be in a further questions on the transfer yours this is a two billion dollar rule two billion dollars with projected benefits by that are so small that no one will be able to see or declarations establish that hundreds of millions of dollars will be needed to be spent while this case is on review and he doesn't dispute that they just quibble with the amount those cost cannot be recovered the state has established harm in several ways frist to the our cut grid as court noted and also cost to rate payers and to the state from having to make the transmission system upgrades it's our circuit pressing that allow us to consider cost as normally you know if you're doing an injunction and if it can monetary only recover we say no we don't get it it's not like that he said no in the enterprise international case your honor this said that it's not so much the amount of the harm but the fact that it's a reparable here there's no dispute that these cost cannot be recovered from e p a in this  power plant case where the supreme court issued a state earlier this year in that case the compliance deadline was twenty twenty two a year further than in this case e p a s brief to the supreme court said look the compliance deadline is so far out nobody's going to close the states when it comes to the transportation of hades across state lines which is at the very core of the regional hayes program now much has been made in texas is letter briefing in their argument this morning about specific determinations about for example the intricacies between texas and oklahoma the fact that texas source's if you controlled every point source in oklahoma oklahoma the rich tom mountains would still not be able to meet its reasonable progress goals without some contribution from texas so this is very intertwined between the two states e p a look at that consultation they saw the problems they saw the fact that oklahoma had not thought they could request any reductions from texas they saw the fact that texas had not want the reasonable goals being met that's your honest i have several points in response to that question first with respect to the monitoring data that has been pointed to in the breeze that was based on meteorological conditions that are not expected to continue it's not based on permanent and enforceable emission limitations but more importantly that metric really looks at the wrong question is the answer to the question y ponder the metrics that we have in the record the risk is there anything in the record that says that reasonable progress schools were not being met yes you're right what is that first degree it's important to remember that the reasonable progress  only reflect the emission upgrades that will be or the mission productions that will come about from the scrubber upgrades they don't reflect the emission reductions that will come about from discover retrofits which will come online later and which is more than twice that more than those goals to understand the reason will progress goals that flows from the four factor analysis so you determine what reasonable progress can be made during the planning period the goals are then just a snapshot in time that says ok by twenty eighteen this is what we expect and i think he ain't seen everything was met by twenty eight to everything isn't that right that the record the only evidence in the record shows that by twenty eight thousand everything that was met it needed to be met by twenty one thousand maybe i'm wrong on that i'm happy for you to correct me in fact i you know i'm i defer to you on the record for you to correct me there is abundant evidence in the record about the proper way to understand and measure visibility benefits in a regional haze rulemaking as has been affirmed by the eighth circuit in the north dakota case i'm just asking a simple question where in the record do i go to say that the goals mark being met that were for two thousand and eight to be clear in the record does it say the goals that needed to be met by two thousand and eighteen w deficient in less than that if you look at our opposition to the joint motion to say on page twenty four we have citations to the record that explain why their argument about the monitoring data doesn't actually show that the goals were going i'm asking where is your monitoring data that shows that it wasn't met e p a doesn't have independent monitoring done to the nose yet is a sentence that contradicts that in the record your honor respectfully it's not the correct question for understanding the visibility benefits that will come from the emission controls if i may have a moment explain e p a compares the visibility benefits that will be achieved against natural conditions because the goal the national goal set by congress is to achieve natural conditions for visibility in these parks ok but can i just make sure i understand your your position is not that there is other data in the record that contradicts that data and that therefore we should defer to your data your position is that you don't have to show that that's not even relevant or we don't need to know whether the two thousand and eighteen levels have been that my position is that difference is owed to the e p a is in review of the data in conclusion that that was not sufficient to overturn the analysis before factor haven't been met yet because it hasn't we haven't even gone to two thousand and eighteen your honor it was already at that clear progressive if it's a reasonable progress goal it's a measure of is it on truck that's what she's asking it where do you have evidence that that the problem with the meterological data even if accepting that it shows i mean that the monitoring data shows what it shows the palm is that was not expected to continue because it was based on meteorological conditions so it may have been true at that moment in time and that monitoring data was collected that it appeared that the reasonable progress goals of the met but once that was based on several factors including the recession and reduced emissions it was based on that the media logical conditions at the time it wasn't based on in forcible permanent reductions in emissions so that could change if you to go back to that question of what is the determination e p a has clarified interpretations of these provisions of the statute and the rule that speak to what the responsibilities of up pointed down w are can't be divorced from e p a s analysis of texas and oklahoma submissions e p a recognize the situation said it's apparent to us that it's necessary for us to clarify interpretations to provide guidance to all states on what their respective roles and responsibilities are how these provisions of a statute the regulations work and then they applied it here to texas and oklahoma but the fact that the only sources that are regulated by the fifth in texas is of no moment to the fact that this rule is based on a determination of nationwide scope or effect if if a rule that only regulated directly sources in one state if that was dispositive then that provision of the statute would be impossible to ever meet there would never be a case in response to your it could never be the case they say actually it is the case and here is the case and i don't have it handy but maybe i'm afraid i'll find it on we ask you more generally are you talking about i was there to read a certain way can see where we don't we view whether it's published or not but why did you get the inability review when it was published and not to a lack of ability to review the underlying terminations which which is usually what business of whether in fact a statute has been properly applied to a set of facts the claims they are or our position is that the court could review whether it's been published in the eighth circuit recently did exactly that and he's called one line oil where the court said yeah you didn't publish that it was published is is it's not on that port of of the two clauses of this section it seems to me that's not something we view and whether they should have published it but why do you get from the very limited review can we find the document of the second clause of some six or seven sentence that we're dealing with how do you pull back into the first clause that we can't review the underlying determination you need a ruling on if you disagree with what miss bennett said that you need the ruling determination by agencies of a certain kind we review those all the time our our our position flows from the fact that because of nation wide scope in fact it is ambiguous and there is no meaningful standard in this context with which to review it that's what our position is but more importantly here even assuming the court can review it and i would point the court to the american road transportation builders association i think it was called ever heard of as art but the decision by judge cabin on the d c circuit where e p a made the same argument there and seeking to determine the jurisdiction of the court e p a is doing what congress set forth for it to do and section seventy six zero seven which is look to its own rule making oh i know you were arguing that we don't think that you can determine that we don't have scheme that's the congress has set forth the you believe we do have jurisdiction to decide o please could you please go through the determinations and tell us which ones have nationwide scope or effect of the actual determinations that are part of the rule making i would disagree with that framework that it's a you know each particular decision on a different element of the sip the core determination that the rule is based on is e p a has clarified interpretations of several provisions of the statute and the original hayes rule that was applied to multiple set delegates that texas had to submit if we use that not those are determinations that form the basis of the challenge rule that has that has nations that have nationwide scope or effect then i would if i were correct yes i would argue you cannot divorce those determinations those specific actions on texas osip e p a s clarified interpretations that you cannot look at one of them in a vacuum but if we believed we could i'm trying to win and that's what i'm asking you to tell me are the ones that you think helped you when i our letter brief there are further actions that have to be taken in the first planning period that these clarified interpretations will certainly play a role in and will influence it's also true that they will influence and guide the states and e p a and review during the second plan is language and a comment and legislative history that two circuits is enough in that case after park just look this up i mean what he told me six states in the tenth circuit three of the fifty nine circuits is nation and is that really hold up as a consistent perpetration of what nationwide means to me in fact is to circuit that we believe that there are positions at the legislative history there on that point that if multiple judicial circuits are you grossly mistreated one comment is it not yes it is a common what right there is a particular comment but it is consistent with congress' intent to centralize questions that have potential national playability or nation wide scope or effect in the d c circuit so i think i would argue that the point with the multiple circuits is that it could result in inconsistent rulings by the different circuits and result in a circuits were to show nationwide not focusing on consistency it's a nationwide scope in effect however in the context of a locally or regionally a playable rule natick so if it was nationally if it had to literally regulate across the country and i would argue that not even a national political rule has to art apply across the country to be found nationally applicable that it would collapse those two prongs and i would if i may briefly respond to the point about there's been some discussion this morning about other cases that have not been involved in multiple circuits but he has not made such a finding and i would make two points in that first the fact that he has the discretion to find out it will is based on a determination nation wide scope that does not mean that they have to do it in every instance and their support for this in the adult trucking of the d c circuit but more importantly and to use the michigan minnesota taconite role as a specific example that case involved the determination for a couple of facilities in a fairly unique industry in one part of the country of whether a certain type of control was technically feasible at those specific facilities so there was no reason for e p a in a case to find that that was based on a nationwide scope or based on a determination effect when it only had scope for effect on those two particular taconite facilities whereas here this interpretation is going to guide all of the states moving forward and understanding the roles and responsibilities for visibility act mandates that the e p a consider the energy impact of compliance with the regulations the petitioners argue that the final rule would force the closure of a lot of generating capacity twelve percent of peak summer demand from arcot can you direct me to the portion of the published final rule that estimates the refining capacity that the rule will close and e p a s explanation of how this will impact or not impact our c refining capacity that are are in just the capacity of the rule will close and a p s explanation of how this will impact our cots grid by liability and reliability is what is one of the considerations that you're supposed to consider  under the mandated clean air act and under the mandate for the clean air act and where did you do that and how how is it being taken care of or twelve percent could be could be taken offline that's a lot of packed power in the summer in texas the reliability of caught in the grid and in response to those comments e p a retained a nationally recognized firm with absolute credentials and expertise on these issues and said absolute do have a millionaire you with or todd regardless of what texas as a response the supreme court has said that e t a must have discretion to rely on its qualified experts even if there's disagreement with the other side's experts and that isn't the rule where e p a responded in detail to texas comments relying on the report little making what i found was that texas had not shown that there would be an impact on the great reliability and there was no other evidence and that it to suggest that it would now here in the context of emotions for say at the heart of the reliability argument is really the argument that sources are going to have to retire and that's what's going to have impact on the reliability because sources are going to go when the problem is petitioners have submitted nothing more than pure speculation about the possibility that the long term economic viability of these plants may be impacted by the final rule even the declaration submitted on reply by texas say that it's quote simply not possible at this point to know the precise units that may retire  the other that urquhart does not know at this time which units may be retarded as a result of the regional haze from the declarations that we submitted showed that there is substantial economic pressures that preexists this ruling that are going to continue to impact the viability of these coal unit so to show reparable harm it has to be showed that this rule is going to cause shutdown and more importantly during the pendency of judicial review and where there is nothing more than speculation about long term impacts on these sites it certainly doesn't support that there is an imminent harm during traditional review based on retirements and without the threat to retirement there is no argument to show that there's impact on reliability and further our declaration showed a number of ways that are caught he has already made it massive investments in its transmission capacity by virtue of the fact that a substantial amount of renewable and natural gas power has been coming online in your god and to that there are plenty of options to deal with reliability and transmission the benefits are more than three billion dollars a year used about this that applicability of public health benefits and don't we already have that the knack for that and so why it seems like the whole purpose of the haze is to  our beautiful big band and why don't the mountains in the wichita mountains not to do with public we've already got the knack from that and clean air for that so it seems like you're conflating the two by bringing up those  magnitude of disability benefit that results in as a health matter the consequences are enormous so you're saying please take that in consideration by adding the stay it's not dispositive but it certainly should be concerned yes or and i'll take the charlton yes and i want to specifically address some of the reliability comments that were just made by e p a and first of all e p a cannot second guess the reliability organization the discharge by law with assessing reliable reliability matters and in this case that's are caught and are caught did submit reports t p a that were just dismissed out of hand and e p a furthermore w receive any deference when it doesn't have the expertise to verify the accuracy of the expert report commissioned first is the only federal agency that has expertise in liability so that's that's the marsh case that says you  has undergone more of its long term planning and they're continuing to find that there will be a number of shutdowns from this and the that the most recent report that i cite to are that the state of texas and it's in the letter brief  numerous reasons for this but they don't know why on those reasons in their briefing and so this court should not rely on those reasons either furthermore in in the final rule they do list off a number of reasons but many of them hinge on these same issues that are that are kind of common throughout for example texas looked at sources in the aggregate and said you know all of the all the sources taken together are not going to have a visibility for several part of the original is program but has never been required for reasonable progress and that that difference of opinion and that preferred e p a interpretation underlies multiple of their supposedly independent reasons for disapproval here so that they have not shown that those are actually some several reasons that would independently independently of the arguments that we've made in our briefs be enough to strike down the various portions of this please a court yard to address your last question the second merits argument that we make in our stay in motion that e p a acted outside the planning period is sufficient to vacate the rule and certainly sufficient to support the stay order the relevant time period is two thousand and  thousand and eighteen that's defined by the regulations all of the control measures the d p a is imposing in its own law fulfilled happened after that period council said that their two thousand and eighteen goal takes into account emission reductions in the rule that cannot be the case they all take effect two thousand and nineteen or later so that ground in and of itself is sufficient we cited to the court the definition of a fit which is only to fill the gaps in a state plan e p a does not respond to that argument at all in its in his briefing to the point about the goals of all of the goals are met there is no contrary evidence in the record i said in the federal register on page three forty one we acknowledge that recent monitoring data from approved monitors has a monitors that e p a helps oversee indicate that the more recent five year average measurements of visibility at texas and oklahoma areas are lower indicate better visibility conditions than the n reasonable progress goals we are establishing that is undisputed in the record council said that's because there's meteorological issues but in the in the proposed rule e p a says this is due to quote reduction in the impacts from s o two emissions  now let me also address the interpretation determination issue an interpretation is not a determination the determination is what e p a did with respect to the texas rule and in fact counsel said at the i think i wrote this down correctly that it's interpret can't be divorced from its action on the texas it that is exactly right these are intertwined issues to the extent e p a made any interpretations they're only relevant to the extent it applied those to the texas it now even if they did make some broad pronouncements about its regulations those are narrowly cabin the first planning period is over that's what e p a said in the rule it's already acted on all states other than texas and oklahoma for the person first period e p a now points to a few cleanup actions that go at first planning periods not over yet we have more to do but if you look at those rules all those rules deal with the bart requirement none of them have anything to do with reasonable progress so if this new pronouncements were so significant of national importance you would think that e p a would have mentioned him in those new rule makings and in the future e p a is promulgating new regulations pacifically for the purpose of incorporating these interpretations into the actual regulations which is what they should have done in the first place before they attempted to subject texas to them in the legislative history your honor the legislative history does not actually say that two circuits is dispositive or statute doesn't mention circuits at all the legislative history simply discuss situations where scope or effect may extend beyond a single circuit so it's ambiguous as to what that means certainly there's other point of the court other language in the legislative history that talks about civs being reviewed in the regional courts of appeals and that's what we think the