case number one eight dash one six seven seven in mexico or paraded v gordon way or arguments not to exceed fifteen minutes per side mr robert columbus for the is affirmatively exercise that authority by establishing a system of duty free stores and determining what those stores can sell into foreign commerce the state of michigan now imposes controls through it environmental regulations on what am acts a duty free store can sell into foreign commerce and under the foreign commerce clause the state lacks the authority to impose such a control in addition because congress has imposed a extensive and pervasive scheme of regulation and both statute and regulation for duty free stores the regulation environmental regulation that michigan has imposed is preempted ok why isn't the michigan statute which has been adopted by the e p a as part of the state implemented pullman patient plan and included in the federal regulations why is that not not no federal law well  force another way to look at it which we've suggested is that it remains state law in the in the clean air act simply gives the the e p a the authority to enforce that state law when it can't if the state michigan cannot change it without federal probe that's right but you know it is set in stone as federal law or federal regulation i guess unless the feds allowed michigan to change right that's caressed part of the scheme of the federal clean air act is it not that the states half the states propose methods to comply with the federal clean air act and the feds determine whether that is in compliance with the federal law and then they they adopt the state regulation if it if a complies of it that's the way it works as it is and that's all correct ok so the fact that it starts from the state law i mean that's required by the federal statute is it not that's also it could also create a federal implementation plan in the event that the state doesn't propose one in the event they don't correct ok but that's it's kind of the exception rather than the norm it isn't this sort of a hybrid situation where they notify the state that the numbers aren't satisfactory and they have to do something about it and so the state responds by lowering the permissible level and one of the findings that defense have to find is that it's necessary otherwise you can't lower it before below and that is all correct but when would judge griffin what you said is correct here is why it still state law dard isn't forcing its own state law which is zero if it's both state and federal law you say that state and forces its own law violates the foreign commerce well there are there are also wouldn't and in fact the state hasn't when it is in force these exact regulations and i take your owner's point that it went when it becomes federal law and if the e p a were to enforce it that would be a different situation for the commerce clause analysis with the  action here is that where it's applied by the state to am acts that that creates a dormant commerce clause problem and and a preemption problem you're arguing there it there apply innit incorrectly or contrary to the federal interpretation of it or anything like that are you know that's exactly what we're arguing that as applied to exports the e p a has stated in comment in response to comments that it's law in these volatility regulations to amex the duty free store which sells solely in the foreign commerce and solely for export that that would be in violation of both the federal regulations and statute related duty free server doesn't sell solely for commerce it sells in the state of michigan and of my work to go to this gas station i'm in the state of michigan and i'm i can run my car at least in the area between the gas station and the ambas or bridge and maybe i could circle around the parking lot and keep my car running for a while and i would be using the gasoline in the state of michigan but i'm not going to be using the gasoline in the in the the state of michigan it is it is always i assume are subject to the michigan worker's compensation act probably the michigan fair hours and labor acts all if there is a criminal act that occurs at this gas station i assume that people be prosecuted by the state of michigan all right well it depends on what it is but to the excited all right it's within the jurisdiction of the state of michigan well except for the taxes the duty free and that is what this regulation goes to and i'd like to just draw this distinction to clear to make it clear the state of michigan requires vapor capture technology be used where the gasoline is taken from the truck to the storage facility and mix complies with that regulation because it doesn't relate to what amex can sell into foreign commerce or relates to how it's delivered doesn't the vapor come out when they are fuel a car in the state of michigan and those vapors would come out from that car into the atmosphere in wayne county michigan state of michigan and therefore the vapors don't only affect canada they affect michigan  same that's the same example because what we would say is michigan has the authority to regulate the technology to capture the vapor during that process during the pumping process michigan has specifically declined to regulate that there is a proposal that was originally in the summer fuel laws to regulate what's called stage two vapor capture michigan decided that that was unnecessary because ninety five to ninety eight percent of the vapor is captured by the current technology the state of michigan decided not to regulate the fuel pump process any further but that goes to the point that that a good technical question so the vapors do they come out while other cars driving or is it only when the fuel is going into the car so there are three points at which it could potentially come out in this the system one is during the transfer from the truck to the tank that is governed by stage one technology which amex complies with and which doesn't go to the sale the second is the pump process which i am dard has declined to regularly because it said that it's unnecessary to regulate and then the third part is the combustion process which takes place from the tank to the bridge where the evidence shows in this case however is that on average the cars that leave amex are not combusting the gas that they take from the m x pump that they come in with enough gas in their tank and their lines to combust the they don't begin  gas until it cross into canada that's not been disputed by any evidence in this case it actually become an empty they would be using the gas and i've come an empty to a gas station before i mean it's possible it's not what you want to  it is possible your honor in the study to be clear is on average but but it's undisputed that to the two for the most part on average there is no gas from amex that's being combusted in the state of michigan or we would like to get back to the question that was asked and that trying to follow up are you saying that you litigated below and are litigating now and therefore will have receive a decision on the question whether this where humiliation assuming it's constitutional is intended to be applicable to your situation litigating right now the question whether if this way q lation assuming the regulation is constitutional that you then except that it was intended to apply to your situation that that we phrased it wrong or are you saying that one of the issues before us and the issue that you presented to the trial court is the question whether this regulation is intended to apply to this situation yes or no and that's what we're that's what we've litigated ok i thought that you were litigating the constitutionality of it which it in we are so that so that the two questions the two answers are linked we are living in the constitutionality of it because our position is that this regulation one question is assuming it applies to you is a constitutional right and that's what i thought was before us it seems to me to be a different question whether you say ok it's constitutional but it was never intended when it was passed and when it was approved it was never intended to apply to this situation that seems to me to be a different question so hopefully i can clear is up michigan clearly clearly intends to apply the regulation to the situation we are now arguing that on its terms that the regulation does not apply to m x as a gasoline dispenser but the entirety of our argument is that it cannot constitutionally do so so that is the entire day of your argument ok but it but it's as an as applied challenge even on that and the constitutional level ok but it it the answer to the question whether regulation was intended either by the federal government or the state government to apply to a particular situation i don't think is necessarily answered by the fact that the regulators are attempting to apply it in that particular situation or you can have a regulation that wasn't intended to apply to a particular situation they're trying to apply it and you come to court and say look that's this this is not intended application of this general provision but you're not arguing that under the terms of the michigan fuel laws it would apply to max if it were constitutional we've argued it's not ok thank you counsel you're out of time but i've been interested as to  moving on to the other issues i mean i'm at this point i'm rather inclined to rule that this is federal law and therefore we don't even have a commerce clause issue but assuming i'm wrong or silly my colleagues disagree with me and i have not talked about it can you move on and and assuming this is not federal law that this is state law how does this violate the commerce clause just just briefly certainly are honored in the core here is that because congress is stablished a national policy with respect to duty free stores which exist solely for foreign commerce the and that policy includes a policy of broadly allowing the sale of any goods through duty free stores with the exception of explosives other than fireworks and perishables that michigan's attempt to control the goods that amex can sell and specifically the type of gasoline it can sell into a foreign market is unconstitutional it steps on the federal powers which are exclusive even though the e p a consents to it it won't steps on federal powers although the feds are just very happy with it but again your honor the only the only indication we have from the a it all in the record is that the e p a said the volatility regulations that are of the kind of issue here do not apply to exports and so the e p a to the extent it's even thought about this has sided with our position because this these goods only go for export into foreign commerce but other than that the e p a hasn't given any indication one way or another as to whether he has only goes to export and foreign car commerce is that director ok well i think i stopped at this gas station on my way to canada for dinner when i'm working in detroit fill up a gas station go over to windsor have a nice dinner tell you a restaurant tell you in town and then come back  d i might have used a little bit of of your gas but not much that brought a back thank god it back to the united states so how can you say it's all used in a foreign country because your i haven't used  because when and when a customer comes back to the united states with gas in the tank the what the customer should do is declare it clear ok and exxon at ok i'm sorry to inform your honor that  back they go to shop they go but if that were the case the u s customs would have an obligation to find that to ferret it out there's no evidence that that has occurred there's no evidence in this record that that occurs and one way in which we're supposed to assume people go across the baster bridge and they just keep going they never come back but then again the bridge has got commerce going back and forth it's harder now to go back and forth but you know what i used to be on the court of appeals  i mean we it was very easy to go over to canada and come back and we did it all the time but i mean it was just you didn't think anything about what i can say your honor is that the entire scheme of the of the duty free store is that the gasoline and the other goods are used for x or put in a foreign commerce for expert and don't come back and to the extent that they do come back the u s customs has an obligation would actually have to regularly m x the sale of gasoline it's never done that because there's no evidence that it comes back but they well i mean gasoline is a little different commodity than other things you would ship overseas and you would think that you have to declare when you come back i don't think anybody thinks you've got to declare the gas in your gas tank when you come back but that's what you say you got to do it's a duty free good that's what is required under law and what the testimony in this case is that we would have to one quick question what is the site for the e p a regulation or statement or whatever that you say would exclude duty free good less pressure than nine could you so let gas at twelve amex could sell any gas that would be legal in accepted in canada because it's selling soley into the foreign market that's the just to give a different example amex can sell alcohol to one thousand year old because that's legal in canada amex cannot sell cigarettes to one thousand year old even though that would be legal in michigan but it's illegal in canada so the same rule applies to the gasoline it can it can come in needs to comply with whatever the canadian rules are which i don't like to encounter as there we choir then i believe is the answer depending on the season but that's my understanding ok which and ten would not be in compliance with federal law right right but you're saying you can sell it at ten yes your honor ok is there any are you basing that on your view of the law or is there some place where we can verify that you were allowed to sell it at ten well it's you know it's consistent with our arguments in this case there's no i can't point you  that says that other than the fact that the way the duty free store works is that the goods must comply with the regulations in the foreign markets of the same would occur here now the difference there your honor is that because that is a federal regulation  that there would be it would be a dormant commerce clause problem or probably it would just be one of how do the two federal laws interact there our view would still be under those circumstances that under the statute the do you free store can sell anything other than the specifically well it would it would certainly provide some context for us if that were the case that the feds don't even don't even apply their own law i mean  and if this is the same thing it's just what they want to see in michigan and they don't apply a nine require mentor at sport in this particular the only enforcement has been by the state of michigan under its own laws and under the particular law that's at issue so there i don't have a citation to point you to but in terms of the history of this what you said is true the federal government has not s enforce its own regulations in this duty free environment in you know in our view the hostler case that we cited would not allow michigan to do that i think it's very clear that this is in the in the zone of foreign co where the power of congress to determine and speak with one voice it is at its height michigan and it's in your honor it's not about the pumping it's not about the bringing from the tank to the storage those types of regulations don't affect what goods can be sold in the foreign commerce that is at the core of what congress determined in the duty free scheme hostlers a little distinguishable and not that the alcohol was shipped directly to a foreign country and it was not  delivered in the j f k airport here the gasoline is delivered in the state of michigan and then it goes to the foreign country but there it was it was shipped directly right that's right you're on it the customer wouldn't pick it up until getting off the plane and as i've already described for the reasons i've already described that does not in our view make it legal difference and i think as a factual matter there's evidence in the record that the isn't being used until what i ask you from the other side the principal i think you're articulating a federal law for customs or duty free sales is that the product is consumed in the foreign country is that is that correct that that that's the underlying principle that it's that it's yes that it's you it's being used or consumed in the foreign country not in this country does what is the statutory basis for that principle or it or is there  a i'm sure there's a rag but what what would you say the statutory basis for that principle is and what is the reg for that principle so it's i would i would point your honor to in terms of the statutes one thousand u s c fifteen fifty five that's sell what the requirements are for them to sell in the foreign commerce and again all of this is done under the control of u s customs and border protection i would point out your honor that that the gasoline is in joint custody with first amex and then the customer up until the point at which it leaves the united states so as a legal matter this is all still being done within the control in the supervision of the federal government thank you  good morning good morning may it please the court i'm elizabeth morris so with the michigan department of the attorney general with me on the case is danielle allison yoakum we represent michigan department of agriculture and role development director gary that this court uphold the lower courts ruling this court as has been demonstrated there's some colloquy already can i hold the lower court's ruling really in one of two ways one this court can decide not to engage with the clean air act at all and simply find that the gasoline paper pressure requirements as pure state law are not preempted alternately this court could also decide to jump into the morass of the clean air act and find that michigan's gasoline vapor pressure requirements because they were found to be necessary under section two eleven of the clean air act and then incorporated into the sip under one tent of the clean air act transformed into federal law and thus there is no preemption analysis at play you think the first is easier than the circuit you know it really depends on the judge's level of comfort but the one point i will make is regardless of which of those two choices you make the foreign commerce clause has no application in this litigation michiganders on the panel can attest to detroit is located in michigan which is also located in the united states you could whistle there's the fact that the michigan law applies to conduct that occurs entirely within the state of michigan and no one disputes that amex's customers drive to canada after they purchase the gasoline in michigan but that doesn't make  court has already told amex that they don't export gasoline for whatever reason amec still thinks that it does export gasoline when did we tell them that they don't export there was a prior case where amex was trying to pull back taxes that had been placed on gasoline from one of their suppliers and they sued the federal government under the export clause to say well hey we export gasoline so you need to give us that money back and after quite a few cases down below ultimately it was decided that amex had no standing to bring that suit because the federal well first of all because they don't export gasoline so because they don't export gasoline they have no standing to try to pull back taxes that were paid on gasoline that they purchased from their supplier i mean x and x doesn't export gasoline if they export of gasoline then starbucks would export lattes every time you drive one across the border and tim hortons would export double doubles every time a canadian drives back with the whole purpose of the duty free laws are to benefit domestic domestic commerce that's located within twenty five miles of an international border it's fundamentally about benefiting domestic commerce and the whole idea is if we can let these companies sell certain goods without state or federal taxes we'll be more likely to have people spend money in america instead of in canada or instead of in mexico and so the duty free laws are really just about can you avoid paying taxes they're not about can you avoid every single other state and federal law that would otherwise be a political as judge your friend noted is subject to michigan state employment laws if they call nine one one it's michigan police who come it's not the royal canadian mounted police and frankly there's other ways to regulate the gasoline that aren't before this court that amex would not contest and guard is able to regulate them for example if amex had too much water in it underground storage tanks where they're selling the gasoline out of there's too much water in the tanks when you refuel if you put the gas in your tank in there's too much water in it your car will literally break down in two thousand and sixteen there were some issues where amex was selling bad gas there is too much water in it people broke down on the bridge before they got into canada now has has regulations related to how much water you can have in your gasoline before you sell it to a consumer in michigan and is is he correct that there are only the only requirement is that comply with canadian law that's not a requirement at all no and so the issue embarked is not regulating the product they're regulating refueling which is the conduct that occurs in the united states and appellant also seems to take the position that there is no type of restriction that could be put on anything that sold in a duty free store now we know that's not true if they're going to sell cigarettes duty free unquestionably they're allowed to sell cigarettes duty free but they may not sell cigarettes that are laced with fenton ill duty free and now are we allowed to regulate those city that now of course we can't because that's not about whether they can sell cigarettes that's about whether they can safely sell cigarettes and the issue here is not whether amex can sell gasoline and are does not say that amex cannot sell gasoline all they say is that like other gasoline retailers in detroit during the summer months they must sell a certain type of gasoline well let's go back to your could they sell in the winter months gas that was read to ten which apparently is the canadian standard so what the both the canadian standard and the american standard of the michigan i mean every state has different standards and even in michigan there's different standards for the different counties but generally the vapor pressure standards change throughout the year to accommodate two big issues one is that as it's colder outside you have more issues combusting the gas if it's at a lower pressure so that's why you have a higher pressure in the requirements for the winter and in the summer you want to have a lower vapor pressure because summer is when ozone is typically more likely to be formed so ok i thought the nine was sort of the limit is that the federal limit is is nine in terms that that's what they say you can't be more stringent than nine unless the e p a says that it's necessary in your situation and so the times when it would be necessary to have a more stringent standard would typically be during the summer months previously cincinnati actually had a lower  than nine and actually just a couple of days ago it was lifted because cincinnati has come into attainment with the ozone standard so the cincinnati no longer has that lower our fi p but i think just to take a step back this case is really much more simple than it seems there's so many fascinating malice holes and mole holes and rabbit holes any kind of hole you want it's here and where ever you want to go off down a tangent you can but the court doesn't have to this is a very simple case about a state that is exercising its traditional police power to safeguard its citizens by regulating air pollution but a just like to deal with this  have to leave and there's no duty because it hasn't it's been in this limbo area and it has been hasn't been imported right absolutely but that doesn't change the fact that when amex pulls a truck up to the gasoline station and puts gas into its underground storage tanks the vapor pressure requirements apply at that time and then when the customers put the gasoline  their tanks it applies at that time as well and just to clarify something one of the trucks come from so amex has a station in the state of some of the storage tanks into in taylor michigan and they get deliveries into those tanks and those are really big tanks and then they take gas from those tanks and they bring it to the gas station in detroit and so the gasoline actually travels across an on duty free zone to get to the duty free store yes the tank is in i thought that they got it from ohio from a zone in ohio so the reason that and they do they have there's testimony on the record that they've gotten gasoline from the free trade zone in toledo and that they've also gotten gasoline at times from canada but the reason they have to get gasoline in a special way instead of just in the refinery is because they need to buy gasoline that doesn't have taxes put on it typically the supplier bakes taxes into the cost when they sell gasoline to a gas station and taxes are it's their significant gasoline taxes when you add state and federal taxes it's about fifty cents a gallon so amex needs to make sure that it's supplier is not essentially upping the price up by fifty cents and the weight per gallon and the way they do that is to go through this legal fiction of sort of having good paperwork and having tanks labeled so that they can say this gasoline that we are purchasing from this refinery is going to be sold at our duty free store without taxes but that's part of the scheme the that's part of the federal scheme absolutely and it's the customers who take who are exporting the gasoline it's not amex and what is being regulated is not just the product it's the process so when the gasoline is put into the tanks that's regulated the underground storage tanks and also when it goes into the customer's tanks and so the fact that an excess able to get a tax break under the duty free laws that doesn't translate into license to not comply with otherwise a political state office and so the fact that the customers go to canada that doesn't mean that michigan's gasoline vapor pressure acquirements don't apply to one of th statement that these these red was retaining you know that the regs don't apply for export if this if this shore and if these things are deemed to be through this process are deemed to be designated for export so to fully provide context to the comment that e p a had made their e p a and this was in a preamble in one of their i think the hundred eighty nine gasoline votive volatility regs and a refiner had submitted a comment that said hey i export gasoline do i have to comply with these gasoline vapor pressure requirements and it was in that response th quote intended to fully cover the introduction of gasoline into motor vehicles and put and so what am ex would like you to believe is that this response in a comment to one refiner means that they as a duty free seller of gasoline also get to not comply with gasoline vapor pressure requirements but to be clear that preamble was not about michigan's paper gas paper gasoline paper pressure requirements it was about federal requirements and so they're they're just not on par with each other it's really and this case is it's replete with pulling one line out of one thing and then making it stand for something much more grand this is a very simple case and owns a gasoline refueling station in detroit all gasoline refueling stations in detroit have to sell lower pressure pressure gasoline during the summer for three months period that's what this case is really boils down to and amex cannot bootstrap its duty free status into a law free status they're not entitled to do so i do want to clarify a couple of things i know that judge griffin was concerned about potentially having violated some what's the exception so the question is if i fill up if i buy this duty free product and i don't consume it in canada whatever it is and then i come back into the u s do i have to pay taxes on it and you can have you know a bottle of alcohol up to one liter that you can bring back with you and that's ok and you can have up to eight hundred having to declare it or say without having to pay reimport taxes on it over gas or you can have up to eight hundred dollars of sort of undisclosed duty free that depends upon how long you stay there so that reimport taxation depends on what is the dollar amount and then there's also further clarification to the size of the bottle of alcohol or the carton of cigarettes but the whole point is the reason you don't have customs agents asking you on your way back did you know where did this gasoline come from is because at the end of the day it doesn't matter they can't get taxes on you from it so i wanted to clarify that  point and you know there's also been a lot of discussion i guess the question is really why should an axe not have to follow this law the purpose of the duty free customs law is to benefit domestic commerce located near an international border that's it it doesn't mean that domestic commerce should not follow state law if it means that they might make a little less money that that's not how preemption analysis works and so we would ask this court to understand that the only benefit you get as a duty free shop is that you don't have to pay taxes fundamentally that the purpose of everything else is fair game that the state can do anything else to that store well in i tell corp containers that was where the supreme court said that there is no field preemption and that there is room for state law to regulate other aspects of do you have any authority for a state doing other things besides taxes to i mean i guess we do i mean we have rules we have a labor statute supply and in what you and  its general business tax every year one of the harms that they associate that they sort of claim is going to happen if they have to focus they're going to say the distinction is this is a regulation of an actual product that's duty free so that's do you have any example of a regulation of a product that was duty free so there's and i don't have the state in front of me i apologize gave the fat no example for the cigarettes but presumably you have a case for that there's just no but there's a long list of regulations in the c f r that were discussed i would say at length in that the transcript before the lower court where there's all these different regulations where it says it's not just customs who is regulating these specific products here is how e p a also regulates a product here is how  another federal agency pharmaceutical you know the f d a also regulates this or even exporting fur different things there's there's lots of concurrent jurisdiction over different products that can come out of duty free stores and so if it's not the case that customs is the only one who says this is what can come in and out of these doors and the other distinction with a hostile or case of j f k case was that the state of new york was totally prohibiting that's one distinction that rather rather than regulating that's one distinction but another distinction is that you have to use gasoline to buy it's much different from a close container purchase yes and so it would be the same as if you know if you wanted to buy alcohol you would have to open it and take a sip well in that case you know that amex could not sell to one thousand year olds because nineteen year olds can't be drinking it but because they can sell to nineteen year olds because they feel very confident that those one thousand year olds are not going open the bottle up on their premises and start drinking before they get to canada and so there was another case that amex had brought up in their reply and if you notice my time's up let us finish this thought i must as other questions but there was another case that they had cited in their reply the three m case out of the eleventh circuit and in that case there was a florida state law that says we can regulate pharmaceuticals and then there is a federal free trade zone act and there was a warehouse located in a free trade zone off the cost coast of florida where companies were warehousing pharmaceuticals and then sending them to other countries they were never ever going to be sold in florida and in that case the eleventh circuit said in florida was florida had threatened to inspect some of those farmers pharmaceuticals and the upshot was that florida state law about regulating pharmaceuticals was preempted by the federal free trade zone act and the reason that was the case was because those pharmaceuticals were in a box and were literally shipped from one place to another and the sale itself did not even occur in florida it would not have been possible for a florida consumer to  have access to those pharmaceuticals in the state of florida so it's completely different because gasoline as judge griffin noted is something that when you put it in your tank you immediately begin to use it so but that's interesting because that argument sort of concedes that this is a general principle these things are exempt from state law and yours sort of saying but gas is different but that was a different law entirely that was about the free trade zone act which is not about duty free stores quick points here on his first a just want to be clarify one thing in response to the colloquy that we had judge white with regard to what the scope of our challenge was here i don't want what i said to be taken as a concession that  we are not challenging in this case that doesn't change that point but i didn't want it to be taken as a concession going forward the end you're not challenging it you don't intend to challenge it below either if if we were to refer well it is up to free store by statute sells for export that's nineteen u s c fifteen fifty five b that is the basis of what you need three stores are for it's entirely for export and so i actually agree when coun guard says this is a very simple case it is a simple case congress has determined in its exclusive power to regulate exports and to regulate foreign commerce that amex and any other duty free store can sell goods with very limited exceptions under statutes that's a determination that congress made in its exclusive policy authority to regulate foreign commerce the state of michigan has tried to contravene that by limiting it's not a total prohibition as it griffith you noted in hostetter but it's still a limitation on what amex can sell amex can no longer sell the the good that the customer's going to canada and they are going to use this in foreign commerce find a active finally i would just judge griffith griffin i heard you express skepticism about whether this is federal law i would just point this out for this to be only federal law and not can it be both state and federal it can be run we have to pick one of the other no your honor can be i think it is your and the visual is it both are you saying it's only stay are his are our positions that it could be both that it could be just state what it can't be is soley federal law so so you don't have to pick as between those two but in our view you can't be silly federal law because that would what that would mean is that the federal government the congress has i don't what does that make any difference for analysis whether it's solely federal law or both state and federal law  to me as long as you have federal law what if they're identical if they're the same isn't it redundant that it's also state law no your honor because because we because what we're seeking to enjoin is  ok and they're prohibited from enforcing federal law i mean i don't there i don't think most state agencies are prohibited from they don't normally do it maybe but i mean there's a prohibition of the state state  enforcing federal law well they would have to have imagine that some mechanism statutory or regulatory to to allow michigan to do that and there is none the closest that they can point to it is a citizen suit provision in the clean air act that allows a person to enforce the federal regulation adopting a sip that doesn't have the authorization has to come from congress for the state to reports federal law right we don't believe that it is occurred here for reasons we've discussed in the brief the citizen supervision would not apply in this or what the statutory scheme contemplates of federal approval and michigan enforcement correct but that's part of the federal statute right but to assume that the federal statute has stripped a state law passed by a sovereign state just stripped it of its state law character by  approving that incorporating it by reference into the c f r is just very surprised that you ripping it it's the federal law is using the same terminology the same wording as the state law and making it federal law so how can it violate congress's authority given that congress through its delegated agency has adopted the very same language in federal law as existence a lot how can a state law in any way undermine congressional authority because well if this were federal law we would have the issue about how you how you interpret the two federal laws together the customs regime and  we would still have an argument under those circumstances it would just be a different argument in this case the e p a is not a party the injunction that's being sought is an injunction against them guard and can only enforce and in the past has only enforce its own state law so that's the that's the logic here if in the in the future the e p a were to bring an action under the c f r under the regulations that we would have similar arguments but they would be about statutory construction and how you how you accommodate th policy objectives that appear in federal law that's different from whether m dard in its sovereign authority has any ability to regulate what a duty free store sells not how the gas pumps not how the gas is brought from a tank from a truck into storage tank those are regulated and that's not a regulator but their duties at the state regulation exist because the congress through the agency said they have to do the regulation right but they will congress never said was you have to apply those regulations to duty free store that's never been set the duty free store sells to customers for export soli and exclusively and so the question is whether michigan has the authority to regulate what is sold for export when congress has already broadly allowed any goods to be sold for export by a duty free store with two specific exceptions so why why shouldn't we asked for an amicus brief from the senate from this that i don't think that's necessary to decide this action because the statute is clear the p a has spoken on this but at the same point we wouldn't we wouldn't oppose that  according to them dart is aware is is generally aware of this regulation and aware of how and are sikhs and force that has not stepped in to support them guard so i think that or has that has it it hasn't support of either side i don't think it's necessary for this court to to take that step to decide the case we think the policy is clear the federal interest in the thomas i'm still confused in the us i don't want to repeat myself but i'm still confused why this question of interpretation is is only appropriate against d p a and not he it don't don't follow it but apparently he think that question is not appropriate here it's appropriate here because in our as i'm trying to describe the e p a in our view has spoken on the fact that the our v p regulations that volatility regulations generally do not apply to goods for export amex sells goods for export it's a straight shot to a determination our view that the