what is the background work what is really involved in this case because when you can come in now if they are in violation operational and you come in now the e p a come in now and that says we don't have any obligation to dubious you've got to come in from scratch what is involved in this case are you trying to come through this door in other doors that might be available to you for violations and that's what i'm asking there's no other door that gets us the best available control technology emission limitations but this store they need to modify their plants to trigger those emission limitations i mean if they are in bali shown off standards you can't do anything about is there are there are other standards that apply but not the control technology standard the emission limitations so there are other standards payson i can't understand why you want to go against all of the  why don't you go through all the doors that's all i'm asking because the trigger for these pollution controls that we are do says sulfur dioxide a hundred oxides by about nine percent is this program so this is the door that gets us the night you can't in other words they can they polluting at the historic lovers into bill they modified once they modified then they suspend they have to comply with the best available control technology it's about a ninety percent drop in these two pollutants and so our argument here is they modif pollute right now and you can't do anything about there is no program that requires this production but this program shirts texas could amend its plan in target these facilities explicitly address the exactly this sort of suit it holds that the united states operating without the box limit is an ongoing violation in any event i just want to be really clear putting aside the first issue the injunction issue  if you were to side with the third circuit we still should win this case if you follow or say the third circuit's wrong and it's wrong because when you modify the plan when we wouldn't modify the plan it triggered the a one in four acquirements and the eighty four requirement is back to best of all billable control technology it's the mission limitation if they had applied for a permit and follow the procedure that they should have they would have ended up with an emission limitation governing operation of their plan their argument is a we did apply for a permit so we don't have to do that but that makes no sense you don't get a free pass on emissions control because you skipped the permit except the else should have gone after them it is not like you have clean said we could not get an injunction here are one they said that seventy four thirteen b didn't apply for some reason but that's really clear it says when a person has violated those of the two words the act injunctions fail lumin else and lachie doesn't apply the government on the theory that if the government is slower than it should have been the public should not have to suffer you can go back twenty years is the answer to that my question i have to answer that question because this case doesn't go back  in other contexts as well you know in the like in the delegate case we followed folx in osha contacts and we wouldn't find continuing violations for failure to continue to do this reporting the safety reporting two things one sure if that analysis is proper it's at the end of the day after we've proven the violation and the court's weighing those acquittal factors the second point is these things changes occur within the walls of the boiler they don't have a duty to report what they're doing to us part of the analysis whether it's a modification or not depends on whether emissions increase afterwards and that's a complicated engineering monitoring question and so that the passage of time here is not simply action for not  deviate from the six or from the account and one more question do you believe that the sierra club could be moving for this if the government wasn't standing here well they do have a different problem they did face the concurrent remedy doctrine which even the courts that have applied against private groups government changes its position in this litigation just hypothetically as it's done in many much litigation around the country they would think they couldn't do what you're doing they would face courts the lower courts not to apply ply such doctrines mechanically and there are good reasons not to apply the clean the concurrent remedies doctrine in the clean air act context but the court need not reach that issue because the supreme court has been clear that in the absence of clear congressional mandate the government on force and claim is subject to no time limitation in this case the statute of limitations clearly excludes injunctive relief nevertheless the district court honor the sierra club has numerous member members we are a member based organization that has citizens who live in the vicinity of these two power plants and these power plants are emitting many thousands more tons of pollution than they would otherwise be allowed to do district court's ruling on the injunctive relief provisions has the possibility of upsetting the availability of injunctive relief across the board we also have a statutory right of intervention under the clean air act and we have an interest in settling broad inflexible authority to order injunctive relief for past violations that continue to cause harm nothing in the clean air act suggests let alone commands that it intended the congress intended to strip courts governmental enforcement claim on behalf of the public and in a separate context in the deposit case the supreme court has made clear that statute of limitations or that governmental foresman actions on behalf of the public are subject to no time barred so that la case to depart case controls the principals controls the outcome in this case and the statute of limitations is clear that congress did not intend intend to bar equitable relief for the government when it's seeking to protect the public from from harm under the clean air act going back to the point about engine passing just of relief your honor i would point out that the district court completely ignored seventy three seventy four thirteen b in its analysis and instead relied on a completely different provision of the act seventy four seventy seven that provision allows the government to prevent a violation before it occurs the two statute the two provisions can and should be read harmoniously but instead according to dr reading that renders the broader relief allowed under seventy four thirteen be essentially violated the act and that includes requiring that defendant to come into compliance with the act and in this case the court below has at a minimum the authority to require that the defendant to obtain a permit and i do want to come back to judge rod's question about whether the court whether the government could seek relief in fifty years or whatever have what have you that kind of situation can be adequately remedied or can be adequately addressed by the district court the court still has broad authority to fashion appropriate relief to address that and can take into account any delay and so if if the government did wait for fifty years which would be odd man so you're your honor the statute of limitations must be construed strictly in favor of the government and here the government is seeking to protect the public from harmful well ongoing and they can't because they don't have the the equipment or whatever installed to meet that and so they just shut down is that would i mean i don't know how would this work as a practical matter what you're asking or as a minimum at the minimum your honor the court can and should require the company to apply for and obtain the appropriate permits and that would be a state permit that would come from the state of texas and the state would make a case by case determination permit for something they've already done that and would like retroactively request to permit isn't that a foolhardy thing it's not future looking if we know anything from homer it says even if you do an injunction it should be future looking not past looking well there is a violence there is at a minimum a violation of the law that occurred and so under the clean air act when that violation occurred the company was required to be subject to backed and that is going to be a forward looking remedy once the company subject to back it will reduce emissions and will protect air quality throughout the region so it would be subject to these new lower levels yes ongoing that's the remedy you're seeking yes or is it a permit there would be a case by case determination and many of these factories i think case so i'm trying to figure out what the injunction would say the injunction at a minimum would say go back and get go back to the state rather get a permit that allows for that provides backed emission limits reconstruction term separate your car excuse me at pre construction it would be to get but it would also be to obtain a title five permit which is the operating permit that the company has that includes all of the pertinent pertinent limitations don't they already have a permit to operate they do it doesn't it but i don't i don't five permanent or whatever title it would be they do if they do have a title five permit it doesn't include what congress intended for modified sources to be subject to best available control technology which is a continuous limitation that should be applied through you want to make them go to the state to give them a different permit a more stringent permit this is the state in the states not here saying they need to do this right the state is not a party to this case you're trying to make the injunction tell them they have to go to the state they have to they have to they have to obtain a permit that includes all the emission limits necessary to comply with the relevant provisions of the act that's what the statute says ok thank you place the court just jolly to go straight to your question there are other ways to skin this cat there are other doors that the government could have gone through these plants have federal operating permits that are affected right now these permits have emission limits in them emission limits for this exact emissions that they're challenging here these permits are renewed every five years and e p a reviews them under the statutory process so if the p a has a problem with those permits it can raise it at that time of course we would dispute it at that time but that's an administrative process and e p a has all the tools that it needs to timely enforce these exact p s t provisions it can inspect the plants it can require the plants to create and this is all about they want the district court to determine what the state should be determining in this situation so they don't want to have to the the company to go through the state process they want to dictate it out of washington so it's whole inverting the process that's how this whole he wants to want some kind of penalties statute of limitations is passed which is what happened in this case your in addition so the real fundamental problem with their argument both on the statue of limitations and on the injunctive relief is ignores what the statute actually says to determine when a claim first accrues and what injunctive relief the government can get you have to look at the text of the statute their argument is based on a false premise that the statute makes it unlawful to operate a modified facility without back that is operation and the proper time frame reconstruction not post construction and the reason it needs to be pre construction is this is not about going to the state and just getting a piece of paper where you're talking about is installing technology at the plant as the seventh circuit said in midwest generation seventy four seventy five is about what must be built so the time for the e p a to act is when the plant is being built they have to make a game time decision on that they have all the started asking for documents from the company in two thousand about these issues at these plants five years before the first one of these modifications is alleged to have occurred they could have done what they were supposed to do which is challenge the modifications at that time but they sat on their hands clean air act is a balance it's a balance between environmental controls and economic considerations and in seventy four seventy five congress said you need to do this pre construction that's the time to do it the texas regulations here say the exact same thing this court looked at these exact regulations in the clink coalition case one sixteen one ten and one sixteen one eleven of the texas code one sixteen one ten which is the primary regulation that the government's complaint says we violated never cited in the briefs of this court that's because that regulation very clearly says the obligation is before any actual work has begun again they can't explain that away because the language is so clear  states way been to say that hey you need to update your permit with us in any sort of way absolutely not in fact after this case was filed in the fall of two thousand and thirteen the title  permits for these plants were renewed and they went to e p a for review e p a were viewed these plants permits in the fall of two thousand and thirteen the permits did not include what they're saying they should have included e p a refused to object to those permits at that time that was their publicly traded company that company would profit and became lumina and so we don't really think that matters to the outcome of the case the government trying to distinguish the third circuit case based on the shame of ownership we don't think that's why the third circuit did what it did we think it did what it did based on the plain language of the statute and if you look at that decision and by the third circuit on page two seventy two what the court is saying is the change of ownership in that case meant that there was no likely future violation that's what that's why the court looked at the change in ownership there's no allegation here irrespective of the change in ownership that there would be any likely future violations so so we get to the same result just for a different reason in this case  can we consider your penalties argument or did you fail to raise it timely you can consider it's a purely evil issue's been fully briefed to this court it's completely within this course discretion to address that issue and we think you have the ability to do that we don't think you need to think the narrowest grounds for this court to rule on is the fact that there is no injunctive relief under the statute for past p s t violation and i would like to address an argument that both the government it's your club raised about seventy four thirteen b that is their jurisdictional basis for this case but it doesn't say what they say it says what it says is a district court shall have jurisdiction to restrain a violation and to require compliance these are necessarily dealing with ongoing it doesn't say that that the district court can issue an injunction to remedy past compliance the government doesn't doesn't want to read the actual sentence about the district court jurisdiction in fact both parties have a minute that section from their statutory and then them what they want to look is the beginning of seventy four thirteen bay where it says what the government how the government is to follow suit but that provision doesn't authorize anything more what it says if you read it carefully you know what the introduction to both as appropriate where someone has violated what is appropriate as among those three alternatives has to be determined based on the nature of the violation and the rest of seventy four thirteen billion that is not a passed injunction for a so you want us to be in there with the third in the seventh circuit instead of the ten eleven we have to pick a side is is there any other way to decide this case i think the detent in the eleventh adopted  the an exception to the concurrent remedy doctrine but they've not addressed this statutory argument about what the p s t provisions actually require and what the injunctive relief is a bill theoretically could still have concurrent rimini but here in this text you and didn't then refuse to create a governmental exception which is what they're asking for you wouldn't create a split because there is one the tenth and eleventh versus the night you'd just be joining the split along with the knights who ruled that the government can't be subject to the concurrent doctrine in the williams case provisions it did not involve back to deny the ball seventy four seventy five it involved a wheezy and a regulations that specifically as we set out in arden them deal with operation in fact the government has conceded that that's what that case says if you look on the record of page twelve thirty six government has previously characterized marine shells turning on that particular word in the louisiana regulations which we don't have here and in fact none of the five courts of appeals that have looked at this issue unlawful we don't think the retirement of big brown moves the case either we did feel obligated to raise it to the court since it is one of the two plans at issue we didn't want to bring it up for the first time but all the same issues are in the case with respect to more like we think you just obviously make it would not be that alleged activity happened in two thousand and five i believe so it was well past the statue of limitations in that i can't imagine a junction that the district court would fashion or that they would ask for that would involve big brother since the shutdown putting aside penalties which i've already mentioned in my opening argument and jump to the relief i think would be difficult with big brown they haven't argued moved this though and martin lake it still operates so i think it doesn't make a difference for any of the legal issues here they're equally presented by martin lake and big brown the court has to resolve the same issues we think you should reverse on the injunction point and send back and then the court can decide oh no there's no injunction available against big brown but there is one against mark like we could have argument a briefing on that the district court but i don't think this court has to sort out because martin lake presents everything here that big brown does too starting with injunction availability seven four thirteen b the plain language of that provision authorizes the injunction we seek quote it authorizes the image trader quote to commence a civil action for a permanent or temporary injunction and quote stari a court again in any of the following instances whenever such person has violated so that's the past injunction we're seeking lumen it has lie with the act by modifying without a permit and without getting a back to mission limitation were authorized under seven for thirteen b to get an injunction for that home or city they quote back to case and said that was helpful for them on this point but it's not it said quote if the government is not objective in five years of the modification  all the other courts have said of course you can get under seven for thirteen be an injunction for a past violation with respect to the statue limitations again playing lane which we were in twenty four sixty two mentions order requiring luminance to go to the state of texas and apply for a permit and it's not just a construction permit it's an operating permit and the marine shale case sets this forth and says you know it's called a pre construction permit but that's it doesn't bar our claim for an injunction and they still don't have to be in the same place as every other power plant in the country who modified it does make it doesn't make the issue a ruling on the first issue irrelevant and meant in meaning no it would because the permit would include an emission limitation for sulfur dioxide emission late notation for nitrogen oxide and and there's no how can i get that now we cannot get that they say there's other ways to skin the cap we can't get the best available control technology emission limitations for those pollutants without the suit there's no other way to get those and so sure there are other programs but none of them do the ninety percent drop to protect public health that is what we're seeing they give you an eighty percent drop no they don't get any drop they've been they've they've their emissions have not as if they put this data in the in their brief there's a slight decrease but there's no precipitous drop and there's no other way for us to get that big cleanup drop in two thousand thirteen when you went when they went for renewal you could not have requested that no we cannot in the title five process impose requirements that are not already in a permit so title five is a a is with all that you're trying to do now we're trying to put it in the in the prevention of significant do not agree with it that's our that's our i know that's your first but that's it's relevant you said it could be move it out or something but it actually very relevant because if the first prong is wrong that that seventy or seventy five a doesn't actually prohibit ongoing operation of the civility without the permit then you can be enjoined for failing to be doing that as an ongoing basis if that's not even in the statute to begin with you here though be enjoined to remedy the violation but of not applying for the permit when you should have done so when you made the modification and so that's the alternative really if we see if you disagree with us about the ongoing nature of a one and a a seventy four seventy five they still didn't apply for a permit and they still didn't get backs when they modified and then the question is well how do you bar those claims for an injunction and there's no bar there's no way to go back in the past and apply for a permit of something that's already been done it's already happened it's they already have a permit they don't need a new promo then they never got this permit because they didn't do it and you could they can go to texas now in the complications here this morning  were doctored because it says confidential this information claim five of the complete says that the change in the method of operations which is one of the ways a change occurred occurred for the year following the the outage and that