mr root to hear from you thank you roger may please the court of morning it's my honor to be here just morning representing the city of kennett missouri in a case dealing with a somewhat obscure production around the turn of the last century and the natural conditions in the boot heel lead to low dissolved oxygen in buffalo ditch and many of the surrounding  chiz there is the ditches are maintained they are graded on this along the side so that they can serve their intended purpose for agricultural runoff and to provide a little bit of waterway to that part of the world and we're here because in two thousand and ten in order to comply with the consent decree in the american canoe case the e p a approved a flawed t m deal for buffalo ditch and that t under the administrative procedures act and that was an arbitrary capricious exercise of e p a s authority under the ministry procedures act after a prolonged briefing in the district court on the merits of the claims the district court judge concluded that the city of kent lacks standing to proceed and challenge the t m d l and that the dispute was not right for judicial review under this court's case i will league of cities versus e p a that is wrong can't be reconciled cities the city of kent as judge been points out is specifically named in the t m t l and its wastewater treatment plant is specifically regulated by the what's the current status then if the permit use the city had expired and they can't get a new one until they comply with the t m d l can they do anything now some kind of stay in effect so there's the the current status is the existing permit was continued draft permit that the city of kennett promulgated or that scuse me that the departmental resources promulgated precisely because the draft permit did not incorporate the effluent limitations and the  but they're currently operating under the preexisting permit if they are to new to and they are and that is that going to continue indefinitely until there's a new permit approved well it be it shouldn't continue indefinitely and there needs to be a new approved and money is being spent now in an effort to comply with the t m d l and participate in the permit in process to get a permit approved and the engineers are working to see whether these requirements can be met if they can't be met if there are other requirements that the state could agree to that would be acceptable to the e p a today there are there is no permit that's acceptable to the e p a that adequately implements the t m d l and the problem for kennett is every time it tries to get around these restrictions that are within the t m d l the e p a returns and says you can't issue a permit that is inconsistent with the t m d l and that's straight out of the code of federal regulations that the t m d l imposes upon the is not the only scenario and in fact i we think an unlikely scenario because the underlying problem is the t m deal itself acknowledges that the five milligrams per liter water quality standard for dissolved oxygen may not be the appropriate water quality criteria for this waterway so your position is you never know what's going to happen but at least this will delay things in their dresses or injury the injuries being caused by the team deal and if the vacated or declared to be unlawful by the district court which is the relief that ken is seeking many scenarios could follow in which the obligations and restrictions that are imposed on the city of can are different and and less onerous than the present t m deal right now they cannot get a permit other than one that complies with this deal they have tried and e p a has objected and if they did not have jack there's a potential at least for third party liability it similar to the american canoe case where someone could come and say no you what are you doing allowing this pollution that's not consistent with the clean water act regulatory scheme it's a comprehensive scheme that the city and the state and the federal government work to comply with but the t m t yell was rushed in order to comply with the american can do consent decree and as a result impose restrictions that are based on a water quality criteria that no one not the state not the  a has determined is appropriate for these waterways that's the underlying problem if there had been more time to develop this team the elf instead of the october two thousand and nine to march two thousand and ten approval that's entire that' from the draft to the end the state could have worked to revise the t m deal in fact in response to kenneth specific concerns that it raised in its letter the state revised the team deal to include this language about the water quality criteria not being appropriate for this waterway and that the city or the state would need to make that determination prior to the implementation of these waste of allocations that needed to be done before the t m deal was approved by the e p a and on administr e record that said we do not know whether these water quality standards are appropriate for this waterway it should not have been approved instance there is a scenario as they say where they could get remanded to the e p a and they could tighten down the restrictions and make things worse for the city of can we don't know whether that will happen we think that's unlikely but it is it is a scenario that could exist but today the t l exists it's causing injury to the city of canada and this court concluded in the i that cities prepare mitt application prepare a meeting have standing to challenge clean water act regulations that have a direct influence on their municipal water authorities those claims are right before the permits issue and that's where we are now finally i want to address the e p a s waiver argument they contend that the city of kennett in its comment letter to in the state administrative process did not adequately raise the concerns that it's raised in the district court in order to challenge the t m deal they're wrong first there is no requirement under missouri's administrative law for specificity in the administrative procedure well wait there is as you leave it right you definitely in your petition for review leading state administrative procedure have to raise the issue correct that's great in a straight of law that's correct in your and you've got to have asked for relief and the right relief there did you ask for the right relief in the state and ministre the proceedings the relief that we asked for in the state administrative proceedings was a different t m d l and more testing and more time and one that is appropriately implemented do you think that's the same relief you're seeking period which is different than the petition for review because we cannot talentless in state court we couldn't do what the next with the next step would be in missouri and ask for it in a petition for review we had to go to my final questions you know have the constitutional issues in this case do you call others they are to be raised and other than article three standing which but you know constitutional issues that you should have raised before d n r we do not your honor and generally of course on the missouri constitution anything  g does reviewable that's right how does that affect this case that's wild anything that is if you are aggrieved by agency action and have been in that way address the point how does that affect at this stage of the game when the missouri administrative procedure you can always gripe about a decision by the administrator well the missouri administrative procedure is going to be controlled by in some measure by the t m deal the procedure that moves forward from here missouri  and there is a process for doing that but ultimately the e p a has something to say about that too and so far what they've said is you can't issue that permit and what the problem for kennett is we keep cycling back to the t m deal the t m t l is what causes may please the court my name is michael gray i'm here on behalf of the environmental protection agency we make a very narrow standing argument based on the particular and peculiar facts and claims raised in this case and we do not continue and where regulated party has cost of compliance that it must always wait until a permit is issued before bringing a suit our art claim is really based on that the city has two central ins here in its complaint both of which if they were to succeed in obtain a judgment from the district court saying that they were right about those would make them so if you have some allocated to kennett and not allocated to a non point source and you change that and you have some allocated to the non point source then that has to come from can different than arguing that the the allocation under the t n d l could be moved his second claim in fact was that this will not attain the water quality standard which so in order to attain the water quality standard you would indeed have to move the overall load capacity but you'd have to move it down this is an impaired water under the state's three a three d list once you have an employer what would happen though if they did prevail you said they'd end up worse off but procedurally what w go back to e p a and it may depend on exactly what this court said and how that procedure would play out but if you had a judgment from the district court saying you have to give some load allocation this is not good because you didn't give any load allocation to the non point sources and it won't achieve the water quality standard well then it would be rather extraordinary for e p a henri man to then find the opposite to be true and say no we're going to say you can pollute more and in fact it's a rather extraordinary use of the judicial process to come here and tell this court well we know will make us worse off but when we go back to the ministry of proceeding we'll argue the opposite the e p a and try to make it better off in the complaint really is with the water quality standard not with the t n deal and in their arm is that the criteria the workaholic criteria for dissolved oxygen can't be achieved well that's an entirely separate process that the state went through to set that water quality standard and they didn't challenge the water quality standard in that process when you get to the t n d l process you take the water quality standard as a given and what the state is and instead just behind you when you said they did not standard as it is but suppose your approval were vacated is the water quality standard then going to be fixed for all of the water quality standard would be what it is you would have to go through a separate process to change the water quality standard what they're saying is that well if you vacate the approval maybe the state will reconsider the water quality standard while the state as if to say can reconsider the water quality standard regardless of whether the team d l is in place or not it doesn't make any difference  i think where this court is said you know they cite the national parks that speculative now whether then it'll get better or worse we don't know well a couple i think go isn't it and i want to lay the why isn't enough to address the injury sure and if it of the if the if the relief would delay the necessity of incurring these compliance costs and so forth and i've i don't want to get a couple points by that the first is i would go back to again what they're asking for is they're coming in and saying well we know it makes us worse off but it won't make us worse off until later so that that's kind of the delay but when the where this court like in the national parks conservation association is mentioned delay in passing a potential redress ability it's been delay with a possibility of in the direction of redress ability but that's not what the actual sentence says from national park right it says avoids or at least delays the injury period for that well at the very least if they even if they don't ultimately get it they will obtain some delay here it's very different where what they're asking is what they're saying if the agency actually did it would make them worse they're saying well but we'll have some time in the middle and that  that's a different i think kind of delay and of course the delay here you don't know how much it would be this is a as i said the make it year would be of e p a s approval the t n d l itself wouldn't be changed unless the state changes it so we go back to  a that may start the third you know it's only a thirty day clock for e p a to review it one possible outcome is e p a can say ok well if the if the court found the explanation wasn't good enough from e p a on why this n deal with implement the water quality standard they need to go back and say well we're going to take the deal as it is and give a better explanation so you get thirty days another thirty day review one possibility would be that it goes back to the e p a goes back to the states a let's think about other ways to do the deal then you may have a longer delay but i think your time a little bit of delay designed soley for delays purposes and not designed to get ultimate relief and the idea that well anything might happen i mean that that is a standard that applies in times in the procedural rights cases like in the national environmental policy act or an agency proposes to do something and they have a public process and you know you go through you say well you didn't do the process right and the courts have said well in that case we can't be sure that when they go through the process again the result will be any better but we're going to relax or addressability standard you know that might happen but this is the substantive rights case where they're saying no that doesn't comply with the clean water act standards and that kind of case they have to show that it's likely and not speculative that their injury will be redressed and so this idea that yeah we know a decision from this court would put us in a position where e p a would be sort of skewed towards making us worse off but maybe it'll be better and that's not it's of it's a strange case but it's that's not really what  standing you know that's not how you demonstrate your standing in this case weiss is just coming up for the first time in the court of appeals to you argue this point to the district court we did we did our you into the district court in the district court  that we did not advance that theory particular i think there may have been one or two sentences that sort of hinted that that there was this you know missouri state process out there but that was not the thrust of our argument as we said we think really the district court's rationale is better d under missouri administrative law no argument is under is under federal law the law what we did we certainly pointed to the missouri procedures but the overarching argument here is one of federal law before the state and the state administrative procedure but you want your yes the state has it with what e p a is regulations say is that because we have a thirty day approval process under the statute the state procedures will  be the state public review will serve as e p a s public review so when he gets the document it looks at the t l and it looks at all the comments and what we're saying is that under federal ministry of law you have to present your comments to the agency so the comments under the state public review procedures are the comments that are submitted to e p a should be taken as such so if you don't participate it really doesn't matter so much what missouri's procedures are the fact is that they give the procedures that there's an opportunity to come in and make your claims and it's this court should not be in the business of saying well e p a approval is no good on the basis of claims th wasn't able to evaluate because they were never submitted in the public process before the state so that's the contours of our argument on the forfeiture what do you believe there's a difference between missouri makes a distinction  submitted to the state don't rise to that and what about the relief aspect you heard me tell the other party yeah he says you got to seek relief at the administrative n g s one court yeah i'm not sure that i would have to go back and look at those cases  so in conclusion again we are submission is that the plaintiffs in this very specific case don't have standing based on the specific way that they've pleaded the case and the claims that they've brought and if the court is inclined to disagree with that we would say that those claims were not presented well enough in the ministry of process and were forfeited in the court can affirm an alternate so again on redress ability you're saying because they are the specific claim logically would and they have been denied would make them worse off would make them worse off even delaying the implementation of a t think i think because the ultimate direction would be to make them worse off i think you know it delay may have some component where the ultimate direction of the suit will be to make them better off but i don't i don't think just delay i mean it would be rather interesting for this court to adopt a position that it's just fine to come to court only for purposes of the lay even national parks case do that by doing or even delay i don't think so i don't think this straight mention of delay i mean right least delay in when i say yes a's opens up the use of the courts to bring a suit where you know even if you win you'll be worse off but you won't be worse off until later that seems to be standard that's another way to get around the lawyer issue here is that there they want to delay implementation of the team deal to have a third party the state maybe take into account a water quality standard which is just too speculative under under the  to meet the case law from the supreme court on standing thank you all right thank you mister root have some time for a bottle thank you your honor and addressability the the t m t else causing injury to the city of care that's conceited by the way so we have injury in fact and we have  and i've recited again here this t m deal should never have been approved because it was unlawful both because these water quality standards could never be implemented in this waterway given the natural condition that you're not attacking the water quality standards as well the determined to be appropriate isn't that in in a process that's already been completed and it should have been completed and was not is our view that that and that was a good part of the contentions that were made in the district court record and the city of kent did not seek to delay delay sake at the time of its comment before this was even approved it said to the state department as resources we would like more time because we think this dissolved oxygen criteria may not be appropriate for this waterway and what we would like to do is do a little more sampling so that when you get to a t m d l which is a binding and important document and the clean water act and foresman realm you've got the right standards you're titrating to the state and the e p a said we're not doing that we're going to go ahead and approve this even with language that indicates these may not be the appropriate standards and so if we did redress ability problem i think goes away at on the record before this just because there's a scenario where in the future iteration after relief is granted the we may be worse off that could be in every case we don't know what's going to happen what we hope to happen is a district court concludes this was an unlawful and arbitrary a to work with the department of natural resources on an appropriate water quality standard before final approval of a team deal you want the disc or to direct e p a to work with the state on changing the water quality standard to will do and then there's a separate you know how can it change the water quality standard you can work with it can have thirty days to either approve or not the t m b up that that is before it and they could say we are not going to approve  deal until we have certainty about the water quality standard we don't want to approve a t m d l based on water quality standards not appropriate for a waterway that's an entirely reasonable thing to have happen and in fact the state