regulate power plants until it first made an appropriate necessary finding and we now have confirmation that that appropriate necessary finding must include a consideration of its so he has still not to this very day to fill that substantive condition as of today it is never completed a finding its appropriate necessary and includes a consideration of its so e p a therefore it does not have any white well i think in the future there will be an arbitrary and capricious component based after they've actually done that stuff right considering cost but since they haven't yet deficiency that we're talking about is the fact that they didn't have authority  thousand and twelve but they don't have authority today and they won't have authority until they actually make writing was so that wasn't the same thing true in the sugarcane resentment case the administrative procedure acts as an agency has no point example of this type of reasoning that there is no an l a signal analysis i'm not sure what you're saying other than that are if you're saying our case law is inconsistent well that's interesting but that doesn't help us resolve this particular truth also be true i'm trying to make a slightly different well i think the fact that there's a subset of precondition that they haven't met means that they haven't yet acquired the authority so the fact that they are in the future going to consider costs and it's possible without prejudging the doesn't mean the fact that initially didn't have jurisdiction is not a problem authority and i think i'd like to return to the nurse and comment point that's an important one because i think there is a difference between something it's on the a b a versus something that's under same way of going to lying statute is and this is a particularly clear example because the sash range we're talking about where as a supreme court decided is something that they have to do or are allowed to impose the rule and so this seems to me  an annual basis it's one hundred fifty million dollars of compliance costs that knowledge is that's their estimate they're going to impose from running these controls and that's under fifty one million dollars compared with the again the annual basis of forty six million tough part about the sort of rule that it takes so much lead time to comply with it so has it most of the been done a lot of has been done that there's still forty percent of the plants that have extensions as the state response brief acknowledges so there's plans already have the installed controls what are the costs you mean you just want to take the controls off during the four months it's not not physically removing them it's not operating them it's nice to just don't want to operate them for the four months which are right because we think it industry respondents you really only represent a single generator and that's actually exist that's old growth which operates just one you can walk plant and they say that they were a recent seventy five and they think that the disruption would be enormous for the electrical industry but as to the one company you represent how much is going to cost that one company i also represent the states not just the streets are running  made for that they've already been injured right the people i'm representing have already had to expend all of this under the rule when the rule is next without authority but the question what can we do about that well if if we're talking in fo you may be back under the rule again so the real question is what happens during this four months we can't help you with with what happened in between so this is a marginal cost question as an economist would say that's fair enough you're on it and i hear more out of the rule of law concern i mean that's the real thing that's driving our interest and with this second ally signal factors disruptive consequences it is it's going to work this practical facts on the but on the seriousness of the deficiency point we said in those other cases i just mentioned these were fundamental flaws flatly inconsistent with the statute cetera and yet we still looked at the second question which was the degree of disruption and the people who represent most of the industry here say that this would be extremely disruptive if we were to do anything within reason and right and you have one point and you know i appreciate the concern about the long plan that appreciate the will want question and in many ways we're the equitable situation here we have to decide what to do during this period well i think that the legal analysis informs the equitable so it's not i don't think the case here always in the context of allied signal and signal is something that applies in certain circumstances we're not disputing that we're not saying that it's not a proper standard of biden number of circumstances our point is that when examining congress's instruction as to what it should do doesn't that mean it's without authority that is in this case you could say that they acted by not considering cost but you could equally i agree it's hard to find there are many limitations on agencies but i guess if there's if this case doesn't fall on the side where a lack of authority which is a substantive precondition then it seems to me that when the any case where don't think it's correct to say we don't believe he would never know he's i guess my only point is that it's this is a clear instance where congress told the e p a you have to do something before you're allowed to strays far beyond the bounds of the statute which would mean court said then it should be vacated and whether it's mandatory or not this is such a serious deficiency that even under the allied test it should all that is one of your cases north carolina just to speak up for the north carolina panel was the panel thought there were fundamental problems with b p s approach and it vacated and then e p a and others asked the court to reconsider because the consequences of vacating that the states have been three years planning on the basis of certain assumptions underlying this rule and the court reconsider changed its position and remain ended without vacate and so we're having that same discussion now yes from that in north carolina we had on the motion for reconsideration divide your time because then you don't have a chance to answer the judge's questions but we'll start with  a the supreme court identified a single limit to the deficiency with the mercury in air standards it's sad that e p a has to give at least some consideration to cost when it makes its own brand and that's very finding under section one twelve and one of the clean air act importantly the supreme court declined to have any discretion and how to do that and today i'd like to address two one third question which is it may well be very important to us how long this is going to take and the briefs talk about as near to you pro fifteen as possible and now you've actually done something that looks like you're timeline a couple of the reason why e p a was not more forceful and use plan or words like planning aid is that there are certain things outside of b p s control like the number of comments it's going to receive and the nature of those comments it is preparing to meet that deadline and it has done significant work in just the five months that it sounds since the decision came out e p a is on track to meet that intended deadline yes well i think the court could look at the proposed supplemental fighting and note that e p a has proposed some rather preferred approaches for evaluating costs that don't focus on the cost benefit identified being the failure to consider costs not the question of whether benefits are included or not because the supreme court expressly said it was not addressing that notwithstanding the questions or argument that's right your honor and i think also under the second ally thing no factor the disruptive consequences whether or not it was correct for e p a or it would be correct for e p a to rely on those cold benefits in a final action the rule in fact does achieve that what's called benefits and so when we point to disruptive consequences it's not only the very significant harm that is caused by mercury and other hazardous air pollutants that we're pointing to but also the associated benefits that will result by putting controls on these power plants that are regulated under the rule so the court factors and the co benefits in that part of the  well i think i'm not sure how he'll respond to that but the difference in a persecutor all want to end their remedy is to have the opportunity to comment on what the agency is doing  here e p a is zero is providing that same process in the action i'm dreaming hands and has been able to show not just with what it's doing now but what it did the rule there were costs in the record that people had an opportunity to comment on in that in that part of the rule making as well then address the second factor of the allied signal test as we and intervenor respondents have demonstrated there are significant public health and environmental consequences o we're talking about long and kidney and i'm so nervous system damage we're talking about cancer and those are just the health consequences there are other environmental consequences as well and then we also put before the court that states are have regulatory issues because they have relied on the reductions that will be gained by matz in several contacts and also industry has had to this court that it will be severely i just want to address one point the judge garland was making you know we know that oprah is in compliance with the math rule and and the other industry groups that were on the joint brief did not put any information before this court of significant harm and the only one that did that was try to state and we now know that there harm is significantly reduced and it's important to note that they withdrew their request to the agency for t seem like the kind of things that you can seize every day attach a monetary consequence to well it's my understanding that it was difficult to quantify those type facts because of limitations in data and also because of some of the long term like cancer has zero a long term latency so it's hard to measure the facts of the pollutants on those kinds of harms well some of them in the i thought it was your brief maybe it's the public health of the parks but eleven thousand premature deaths each year that seems like something that has i think that is the coal actually are in the business that is regulated by this rule the electric power business vacated before i do that there's an important issue which we haven't discussed today which is what are we talking about baking we're talking about baking finding here today and more importantly is talking about reinstating the finding the rule and not merely finding it is by no means certain but absent some provision by this court to make sure it is so that you p a if the rule were vacated by the court now when it reaffirms the finding i must can resurrect rule like that that is by no means certain and it is certainly a possibility that if the court were to vacate the rule and he proceeds to reinstate the finding next april it could still be years before hazardous the rule and four months from now there was a finding you would come back here and you would not be claiming that they have to start all over again we certainly would you know you would agree that it would have to go on that's a pretty big roll the dice you know i certainly we would not be electric power plants are going to expect higher revenues that will justify the higher cost that they will concern incur in the math environment so when mass came down and even before the power industry began to restructure itself so that it took into account the higher revenues that it would receive and those higher revenues were used to justify or not to justify the investment in the system that is necessary to comply with the law so what this court to vacate the rule whether that think kater lasted for four months or three years until e p a replaces the rule the investment back expectation of the electric power industry and all those who have invested in more controls in new plants and conversions to gas and so forth are going to be disappointed and the plants and the power generators that have made those investments are going to find those investments devalued or even entirely stranded because they will be attached to power plants that now in the lower price environment that w prevail if the plants that were going to retire don't retire and don't upgrade the course that goes up a group of players will receive will not be sufficient to cover the course we're at least not to meet the reasonable expectation of our revenue office here today on behalf of nine hundred eighty local governments and just like to speak briefly this morning about the heart of this issue for the states and that is the significant public health and environmental harms that will occur if the rule is vacated right now would be significantly diminished so i wanted to give you a very practical example of what that means in terms of come our korean mission specifically the rule affords a twenty ton per year decrease in mercury emissions and if the rule is vacated based on the evidence that you have before you from our declarations that would be reduced to approximately five to eight tons per year which is less than half of the reductions the evidence also shows that the excess missions of not only mercury but also acid gases and the non mercury metals translate into tangible harms to real people fairly immediately in addition to that our ability as states to comply with other important federal regulatory programs would be compromised and i just wanted to give you a few examples of those this morning so several of our states are located in the northeast which is often been referred to as the type of the country because of the path of prevailing winds many of unable to attain our state water quality goals and what that means to us in real terms is that there are millions of acres of ponds and lakes and there are thousands of miles of streams in reverse that are loaded with mercury so they're out  of paris for mercury under the clean water act states and therefore have to develop pollution budgets or total maximum daily loads they're supposed to lay out how we attain those standards but we really simply can't do it so for example the total maximum daily load for the northeast states found that it would not be possible to return fish tissue concentrations of mercury to safe levels without reducing significant out of reach american resources and it's specifically called the states and that specifically call for nationwide regulation of mercury emissions and the same is true of minnesota's t m t out because certain air pollution controls that are required by that will also have the effect of reducing sul dioxide and particulate matter emissions the states will also be relying on that role to help achieve compliance with national ambient air quality standards for sulfur dioxide and for particula shamir style and the one broader observation the sugarcane case involves not just the notice and comment violation but also a failure by the department of agriculture to make findings required under the statute as a precondition for that grant a failure of a formerly and i think the court raise some questions about how do you distinguish this from other cases and i think those are well founded but i think you know a case like the new jersey case involving the clean air mercury rule where th very different as evidenced by the fact that the supreme court and the chanter a and said there are some arguments made that might even be ones that could be upheld but they're not one c p a made contemporaneously very different aberration or a wrong turn by this court we think it's binding even if that were so there are so many cases a p a cases and otherwise i'm but we think it's squarely within the tradition of equity that judicial review of agency action comes from and there are so many cases for example of the line romero barcella the village of camden all winter and monsanto cases where the court the supreme court has said you don't automatically enjoying agency action when there's a violation of statute you look at the consequences and that's very much in line with with the equitable tradition and one more quick legal point code benefits very interesting question that was a subject thank you very much and those are reserved time if i were going around jump to two minutes because you had so many others to face they were not asking that allied signal be thrown out or st doesn't apply in certain limited circumstances and equities the important principle of equity follows the law and the fact that the agency doesn't have authority should matter a lot the equitable an the as they recognize that there's no deaths that are being caused by mercury they have an alleged that ever mercury comes from the particular matters they go to the benefits issue is a that is an issue that this is no longer a question of authority right the only issue the court decided was you have to consider costs the question of whether in considering costs they can consider co benefits if you think that some authority should then everything has to be an authority i don't so i think that's relevant on the health and inside of it and as of the seriousness of the deficiency this is not that there is not something that can be cured it's a lack of authority they're going to start over they will have authority in the future once they do it right but