there please the court david baron for petitioners say fair for everyone american lung association of idaho and noel sturgeon in this case we challenge e p a s failure to assess the air quality impacts of allowing the burning of thousands of acres of cropland in idaho each year the smoke from this burning as we've heard is so thick that it sends people the hospital triggers dangerous asthma attacks in children and in some cases has been blamed for actual deaths but in two thousand and five e p a approved a revision to the idaho state implementation plan or slip under the clean air act allowing this burning and it did so without even looking at the air quality impacts that action violated section one  clean air act which bars e p a from approving any plan revision if the revision would interfere with any applicable clean air act requirement including attainment of standards and other of different here if i've got it right the prior service nineteen ninety nine i think in two thousand and three are expressly permitted burning then it better than you have got it backwards up until then  five but during that period the state of idaho had various pieces of legislation in its own smoke management and acts that clearly manifested the state his responsibility is to submit sips in the first place obviously intended throughout that entire period to allow it because it's own legislation dear well your honor if they intended to allow it under the conditions of the preexisting idaho laws governing smoke burning they never submitted those laws as part of the federally enforceable sipper so even if you assume that idaho allowed burning under those preexisting laws those laws never became part of the federally approved ship and that's what's the issue that was what the issue two thousand and three the two thousand and five revision we're challenging here relaxes those laws to the two thousand and five revision allows burning under the two thousand and three smoke management act which for the first time exempts exempts crop residue burning from long standing idaho prohibitions on open on on the opacity or density of smoke and from long stand and from nuisance law restrictions so well because it's the same because it's the same standard if and i guess the point is that even if there is no relaxation hall still requires an air quality analysis and if the question is your honor why do we even need to talk about relaxation and whether this relaxation or not given that hall says you have to do an air quality analysis even if there is no relaxation the answer is we  still require a clean air analysis the only reason that we're spending that we spent some time talking about this is because that was e p a sole reason sole stated reason for skipping the air quality analysis here their sole stated have to do a dance as you just don't do when you have to do it in both situations your honor there's no question about that there's no question about that if there's a relaxation then you have to do an air quality standard and maybe you can you can still make the consistent with a plan that meets current air quality requirements that the plan has revised will assure compliance with current air quality requirements  section and they incorporated a state law are that had never been incorporated into the suit before that relax preexisting requirements and state law if they incorporated them relaxed was what the two thousand and three smoke management act which to exempt it proper as a group exempted crop residue burning from nuisance law from trespass law and from restrictions on the of smoke and that was not in the law at the time of the preexisting supervision which was approved in ninety three by the e p a now even if i'm sorry to give in to the question the impacts of this plan revision on other applicable requirements of the act namely the requirements to prevent excessive interstate air pollution and to protect visibility it's undisputed that crop residue burning generates smoke that goes across state lines and that this burning causes visibility impairment there's a photograph in our brief showing this and the act requires each plant each implementation plan to prevent that kind of pollution or at least has a certain limits on that kind of pollution e p a didn't even look at that here than addressed how all this burning would affect the applicable requirements that the idaho's to prevent visibility impairment and excessive interstate air pollution and this is not even a non relaxation issue here because i the hoa had no pretty has no preexisting implementation plan to address the applicable requirements that are now in your honor talk about things that have changed since the last approval well between between one nine hundred ninety three and now e p promulgated a new pm standard the pm two point five standard and adopted rules on disability protection and parks and wilderness areas which did not exist at the time the e p a approved the hundred ninety three seven so there was an important change and there's something else here too one of the reasons that hall was so in phatic in saying that non we station is not enough to ensure compliance treating it as an analytical requirement it requires e p a we're value it the way hall read this was based on the she astri of the supreme court decisions in the history of the clean air act which all focused on the importance of ensuring that each plan revision would provide for attainment and ensure compliance with other applicable requirements that's how hall interpreted that interference language now e soups when you revise a step after ninety ninety but before i get to that let me just get back to this this point about non relaxation one point about it hopefully not confuse you  anymore in hall as i said the court found that non relaxation was wasn't at all connected with ensuring attainment because the area was still violating standards even under the non relaxed set and that's true here too for idaho areas are still violating are still designated non attainment for the particulate matter standard despite the preexisting s which that would be the argument that we didn't exhaust that sort of permit of defense and e p a didn't raise that and if you don't raise an affirmative defense it's ways that it's lost really i'm sorry it's not precisely t circuit does not require us to raise every permutation of an argument it's enough that we raised the issue put it before the agency and the agency at that point to to look at the issue and decide whether the statutes being complied with or not they didn't do that here and then furthermore they have never said in any of their briefs that they're claiming we failed to raise this comment with enough specificity yet in this one there was a latent ambiguity what was the ambiguity well that the in light of the our the whole legislatures approach to the issue there was no specific pollution rules from regulating the activity of crowd residue disposal burning so with that in mind if it fixed a total sense the only way i think for the petitioners to prevail completely different if you understand the context of the regulation of open burning and crop residues spells of burning in idaho i mean  don't think you can just you can preclude the agency from considering those sources again if it's a lame a big unity the agency should be allowed to consider other evidence and interpret  the state of idaho set up a system where this activity was legal on the ground in idaho but for have it it's just i just think that defies logic and that's what they're saying happened you'd have to buy into that for petitioners to win it just doesn't make sense i don't know that this case requires a broad general rule but certainly in the facts of this case and they're a little bit design well why i know that that the agency can impose more stringent requirements than what the state requests but what you're asking me used is is whether the agency could have could have disagreed with what the state wanted on this point where  that but but it shouldn't have it wouldn't happen and in the two thousand and five suppose to clarify the ambiguity it couldn't have been that this activity was legal in idaho but prohibited by the state nobody intended that consequence i would say one thing there's not one document in the record that speaks to a prohibition under the surface of the scrub residents falsifying there's not one document in the record other than their submission everything just a word on hall i think the whole doesn't fit this scenario well speaks to situations in which the agency is changing current standards here eve if there wasn't changing anything so there was no need for analysis but i think for a halt to apply there has to be a change in the air mission levels