places as well but thank you we appreciate that and i also want to say that our colleague judge granted because of a non weather related family emergency is not able to be here today he is going to review the transcript he is going to listen to the argument and he is going to fully deliberate with us so i want you both want you to be your sure are short of that and before inadequate domestic supply let me first address e p a s lack of reasoned decision making in determining the total renewable fuel volume acquirements for twenty eighteen why that requires we near prior years in twenty seventeen for example e p a is analysis of that reasonably attainable supply their own term was built on estimates of the volumes of the various ones of gasoline at the projected would be produced in our opening brief page thirty nine and that table shows how e p a analyzed basically from the bottom up how much of each type of transportation fuel e p a projected would be blended and sold during the year and what they've done here are is a really failed to analyze what the domestic supply of ethanol will be and thus whether the general waiver should have been exercised they simply assume based on their data indicating that there demand side of it as if you look at the twenty seventeen rule you'll see that to estimate what the supply is determined how much of each of these various types of fuel would be produced suck air i just want to understand which of most severe economic harm will be addressed by ms klein i'm going to address an inadequate domestic supply and so it is it is both it's though it is both but on inadequate domestic supply they really made no something in this that you still have to win this is something in statute yes i have heard what that is you well it is the obligation to the parties there is a duty to determine two that is the twenty six billion gallons not the twenty six billion minus whatever is determined to waive the sell your losses and pass through and the reason must be analyzed separate one that's what the statute says it says analyzes and gets the required unseen paragraph to do with if you combine them in the way that e p a did you are tainting the general waiver analysis with considerations of costs that are not appropriate for supply in twenty eighteen they just sort of said recent track of the silly logic number we see there are sixteen billion gallons worth of production capacity and we therefore refine it sufficient to satisfy the fifteen billion gallon implicit statute the problem is that takes no account of things that might happen to that supply such as what if there is a price drop and suddenly suppliers of ethanol are not producing as much what if there is any sort of disaster and then determine whether to apply that that way before i want to ask you the question please you argue i think you're the one that arguing that that this is a general waiver question with respect of the general with working with elements of cost and other factors that he ph according to this court's own precedent is not permitted to consider so there are case law reasons as well as what the statute commands that dictate it u p s reading authorities and the ball used against the statutory specified warnings not against the post so i was waving again there's no preference of the web or of application of these various waivers in fact if you want to go white were make any difference they did but how they get to that conclusion when they haven't analyzed what the actual production be but the actual supply will be is hard to fathom you do you disagree with them that under either standard the result would be the same again i cannot agree with that because they didn't conduct the analysis and we don't know what the production action was and don't have those figures yet how they can say it doesn't matter when they didn't do the calculations themselves and then in the end they said never mind we're not going to do that so they really haven't done the calculation to show that there are assumption that the boys are sufficient whether you do or do not move domestic or  whether this was a proper evaluation of the supplies whether they did properly or improperly denied the german waiver requests we can't do that because they haven't done the work they need to s domestic supply the dictionary definitions of the term domestic refer to originating in appertaining to the internal affairs of the country including imports is inconsistent as an e p a setting its own proposed or its no department with the purposes of the same which is to ensure energy independence it's very hard to predict imported volumes and those winds can be affected severely by things like tar parties in the written policy with respect to the fuel exports yes and i'd like to focus on the exports and the severe economic harm this morning any answer any other questions with their spec to that export issue if he a improperly treated that and beyond the scope and refused to address it and i want to get into why that is improper with respect to severe economic harm e p a addressed the waiver but it did not answer the statutory questions or rappel with that particular harm that was evidenced in the record before it i'm going to start with the exports because i want to be clear about the direct connection between this issue and what  to attack a very narrow door with a tangential issue and were affected really trying to avoid a regulatory provision long after it issued that's not the case here what we're saying is in this in your rule e p a the connection between the air that export issue and the annual volume requirements was and this was within the scope of the e p a s requests for comments and it is arbitrary to say that these annual requirements without considering the effect set these and or requirements it did so by relying on that total renewal fuel production in the united states including the renewal tripping over my words including the renewable fuel production that is all to mentally export it and that's clear from the record at j f k thirty two eight zero two do eleven eighty twelve fifty two and to parties how they could comply with those requirements e p a xclusive really connected to fuel that is produced in the united states but export it the result of this was that e p a overstated available supply so that requirements too high and are now this really created a scarcity of these renewal renewable identification numbers or regions which are the only mechanism by which independent refiners can comply with the requirements that  so e p a created a mismatch between the requirements that it that and the means for complying with those requirements this issue is directly connected to the issues addressed by the end of all roll and as you know judge henderson just a few months ago e p a was here describing these annual rules as very broad in scope in this case they tr to say that this was i believe they say focused on viking requirements alone even if that's true this export rian issue is integral link connected to that particular way that e about setting in normal requirements in this world turning to the severe economic harm issue in the record before e p a the governor of pennsylvania and independent refiners representing seventy percent of east coast refining capacity among others petitioned under section seven a which provides for waiver if implemented in the requirements of paragraph two with severely harm the economy of a state or region or the united states e p a s response to this record was improper and to respect first e p a affectively negated the provision by and reasonably interpreting it to mean that it e p a can find any other contributing cause for the demonstrated harm it need not consider the waiver even word to use this narrow interpretation right in their view is would mean it has to be the but for cause that's interesting to me i would disagree with that a little bit because i think if if they were using a buck for conservation then they would have looked at the situation and said would relieving would would would invoking the waiver relieve the particular harm that is addressed in the record and that's not what they did you read the statute to prohibit the paper that he read is it your position that this attitude clearly is inconsistent with if you or is it or is it your view that the statute is in big us and think that e p a is interpret this don't you clearly cannot mean what e v a s that it means because that read is so narrow that it would undermine the very purpose of the waiver and the raise interpretation or a more or reasonable one here if you did not address the statutory question at all because the harbor for it in the governor's letter and in the comments from the independent state or regional harm in fact the interveners acknowledged that they say the absence of nationwide harm alone should be sufficient but as we know looking at national harm masks or regional harm and here when e p a had before and really did not grapple with at all was a governor's partition petition identifying the  disproportionate impact of these annual require ments on independent refiners who supplies seventy percent of the refining capacity in the northeast coupled with that e p a itself acknowledged this kind of harm in separate percy tings in which it granted exemptions to more than fifty almost fifty small refineries under section oh n waiver we don't know how this is i don't think i'm raising a standard question here but it is a permissive waiver it's hard for me to see how it would make any difference in the outcome of the case statute requires if he cannot say without any reason and now this is a we wouldn't have done it anyway there has to be some basis well they didn't say that i was assessing the question well i understand but i don't think that excuses their failure to comply with the statutory question and here as i said they have already determined that independent refineries were suffering disproportionately economic harm would severely harm if if congress had meant what you want it to mean would have said it said the program would have contributed to severe heart for control contribute to severe harm or and it's not clear if it is ambiguous your honor it's and reasonable to interpret it in such a way that you have to exclude every other clause when you're talking about the functioning  a state or regional or national economy that's just an observer result and it also doesn't serve the purposes i mean the purpose of this statute was clearly as a release valve t to address severe economic harm and we're talking about the nation's transportation fuel supply this is not a small matter nor are the expenses that have been imposed on these refiners by this system that divorce is the means of compliance the blending of  fuel from the ability to comply these independent refiners cannot blend fuel so they are dependent on the market for these renewable identification numbers these rince this is elated market it's a market in which everybody knows how many wrens these independent refiners have there is a now and then there was this at j and nine thirty in the holy frontier comments that compares the performance of independent refiners who are really short in other words they're dependent on this and unregulated market with those of other refiners who can blend and therefore comply without purchasing rents that's a very instructive instructive piece of evidence as well but what e p a had before it was abundant evidence that there was an arm to a particular region to a particular right we're here we are here as interviewers presenting arguments are probably before the court under the snow this line of cases under what line of cases so this we are here we're not raising a unique argument or an argument different issue we are here to present arguments in addition to the petitioners economic hardship arguments are us support that in addition to that your honor we are also here talking about an issue that is an essential predicate to whether or mandatory compliance with the r i think it is an essential predicate to this rule if he did not meet the mandate it has done nothing they have never analyzed the economic impact of the small they are fast on small retailers even though it's  time is up thank you eighty five and one three five three three seven in those in that portion of the record e p a calculated the total anticipated pool why the concentration of ethanol as ten point one three percent and then use that to derive the anticipated that in all supply of total at all in twenty in twenty eighteen and found that it would be sufficient to meet the standard set by the twenty eight thousand rule an analogy here is that  in order support the rule simply needed to determine that it was possible to meet the volumes that it was setting not to break that down plant by plant indeed there is no statutory requirement that it do so obligated me your honor i think this is a pretty likely that this is pretty hard to imagine a situation where you could attribute economic harm to region to one factor just i can imagine your honor it is important to  memo to the rulemaking docket we're where we get this ok e p a says it's it was it requires a demonstration that implementation of the program itself would cause itself in other words if it contributes to it he is saying that's not enough we suppose it's ninety percent of the problem so i think the statue in this ng something i think that this actually that is the program contributes to it the question is what do you do what will the agency to take take the northeast the evidence in this record i mean how do we know obligations under the program were largely responsible for the economic conditions in a particular part of the country because it was so dependent on on this industry it's not the but for cause but it's significantly expressly found that it would not invoke a waiver even under that standard on him this case but to return the premise of your question i think it's important to realize a couple of things about the  likely to cause severe economic harm then they would in fact you know have the discretion to invoke that waiver and again because it's not looking that  economic harm and they are of this program deployed that of all contacts it is looking to you know overarching market conditions that you know it has the opportunity to invoke that waiver it's at a certain point this is a judgement call  your case part as to when whether you know ninety per cent position is good enough to say that this is your economic harm problem is in fact because here what with e p a saying with you would cost and or it i outset again this issue is not what the court needs to reach because e p a found that express that expressly at j ten forty two to forty three that even if it had found severe economic harm would result at the  this ash tray tables it still will not abused its discretion to lower the volumes any more than it did in this rule so this issue is simply not before the court however even setting this aside under e p a s interpretation of this waiver it's still is approach also fully honors each waivers distinct criteria for each waiver it assesses those criteria and in terms of severe economic harm whether there will be severe economic harm to a state region or the nation or whether there will be an adequate domestic supply but it does based on the real world volumes that absent the exercise of that waiver will reflect obligated parties actual compliance obligations tellingly in the obligated parties concede that congress prescribe in no particular order for the five turning back to the interpretation of the severe economic harm here i'd like to make just a few more points that obligated parties do not engage with the sash tory types of that waiver at all rather they offer only it looks to the record for specific evidence of state by state or region by region analysis harm and it didn't find that that occurred so if someone had come before e p a with persuasive case of state level or region level separately addressing that and will reach a decision and independent proceedings it was before you in terms of this rule but even if a court looks to that act to record evidence it doesn't actually s's past obligations in bankruptcy it did so with your own work focused approach than this broad based waiver as as i covered earlier this week or would have lowered the standards for everyone you know valero other refineries who are doing just fine  not just that third if you address the material that was in front of it during the rulemaking including comments from those who quote indicated they were filing for bankruptcy that's it the twenty eight hundred rule at five eight five one seven e p a able to this evidence and basically found that they hadn't met their burden of proof of presenting evidence that the r f s program was responsible for any financial distress rather than other market factors for example p e s is principal argument is that written costs are high but really costs are high for all refineries and he has concluded that refineries can pass those costs on to their customers so he didn't draw the link between its alleged financial distress at the time that the record was actually opened before you p s a and exclusion of severe economic harm to the state region or the nation  filings concluded that its financial problems were due to poor investment decisions and its decision to make a six hundred million dollars distribution to its investor owners so although he has claimed that the r f s requirements were the cause of its distress it didn't indicate severe economic harm in and of themselves in fact they don't actually print preclude these parties from being wildly profitable domestic supply prong domestic production of all categories of renewable fuel would likely be sufficient to meet the standards or if there was a slight shortfall the vines would be close enough the standards could be met with other means one that again as predicted judgment is entitle to great deference regardless e p a s historic interpretation of the term inadequate domestic supply is reasonable obligated parties microscopic focus on the word domestic i a red herring that word has to be read the whole contacts of domestic supply congress could have but did not say domestic production if it intended to exclude exports you're in a scene point of that this i think is still this isn't a question we have to specifically e p a street treatment of exports was not one of the regulations that it proposes reconsidering obligated parties argument that because this regulation is intertwined with the final rule would it reduce the jurisdictional require the jurisdictional time limit in section seventy six zero seven b to that letter because e p a s framework regulations are often intertwined with the with its rule there the fundamental underpinnings of the program and essentially any annual rule this would allow petitioners to draw regional and long settled aspects of u s regulation in light of this the court's precedents is clear that obligated parties cannot use their comments to bootstrap a new issues into the rule making allowing them to do so would allow them to circumvent this jurisdictional time limit in response obligated parties wrongly suggests that you can has characterized its annual meetings as expansive in scope pointing to e p a s discussion of its periodic review obligations first this argument is a red herring obligated parties do not and cannot establish that is periodic review of information do anything to reopen the underlying regulations expert exports or the point of obligation that they challenge second as i as second this argument is also in herat section seventy five zero about it imposes an e p a a separate obligation to periodical review rules are relevant to a separate periodic review obligations it is not going beyond the scope of those rules and in finding that they are relevant to those obligations the task is that is still very show extraordinary circumstances the line of cases they rely on including eastern kentucky power is in accord with this rule that that case reiterates the exception exceptional circumstances rule but those exceptions that don't apply properly regular res arguments the arguments that small retailers coalition raised were also unique their regulatory flexibility analysis does not relate to any of the petitioners who have properly brought petitions to this court supply is on the waiver authorities mr carlyle says correctly there is no specified were for application of these things but as i said earlier there's also nothing intimate ties the factors in any one to in to any other on the point of domestic supply i think that in answer to your honor's questions judge hale the court have to give meaning to both words domestic and supply domestic means as we've said produced here not if it didn't affect the outcome of the case well again we don't know it didn't affect the outcome of the case because we believe they did not do the calculations to show that there are accurate volumes with or without they did neither they just made these assumptions that there is enough supply by the way means the amount that's actually available to be used here for compliance and that might actually be a subset of what is produced for instance excellence we believe should be excluded so that with respect to severe economic harm we hark heard a lot of attorney argued and i know that court has read that correctly memo that underlies the severe economic harm that conclusion there is no a in the final rule dismissed much of that evidence by saying quote there was not sufficient evidence that the purchase of ren's as opposed to the market factors is responsible so consider harm to a state or a region all of the and now losses in the crappy memo is the extent there is any analysis it is national in scope it is not devoted at all to an analysis of state or again dismisses this evidence based on the idea that any costs of compliance the cost of purchasing these friends on the and regulated market is quote unquote passed through for that proposition m on a memo that was prepared in two thousand and fifteen in connection with a different question if you look at that memo first of all it's a theoretical exercise that it to has nothing to do with the specific particular harm that was evidence here and that's why we cited the irgun case from the fourth circuit which looked at that same two thousand and fifteen memo and said that e t a was arbitrary to to rely on it and at the same time disregarding specific evidence of particular harm to a particular refinery in that context with respect to a decision about whether to grant a small refinery or section nine had the e p a conducted a proper analysis under the statutory language regardless of how you come out on the conversation requirement the outcome here would have been quite different the same is true with respect to the exports and i want to emphasize we are not saying that the export rin regulation was voided when it was promulgated we're not trying to go back in time what we are saying is that it is arbitrary for e p a to set that particular volume requirements that it determined in the two thousand and eighteen rule to set those requirements based on consideration of the toll all renewable fuel production in the united states but then to exclude for compliance purposes the subset of that production that is export it that was arbitrary and capricious and it was a failure to consider an important aspect of the problem when the e p a treated the export rin issues as beyond the scope of the world and last i just wanted to put some context on this the court in the eighty's decision noted serious concerns that the artist program is not functioning as intended and that requirements will only become more and more impractical to me that was two years ago i will get it already is are entitled to due consideration of these waivers and these issues according to the statute can we ask the court to vacate and  case to show that it isn't preserved in the district records so e p a has recently wrote some fairly large changes to the small refinery program to big ones number one the timing of these exemptions has changed so that almost every exemption exemptions the magnitude in just three years has gone up five fold from about three hundred million rins three or four years ago to one of the half a billion reasons exempted every single year that these changes are very significant because e p a has not changed the way it sets these percentage standards every november it is continuing to assume that there are basically zero small refinery exemptions each year and the result is that more than a billion rins that a p a is counting on to me it you point to comments like to do what we look at what i understand rule this is your right you didn't make the argument but if the organs are properly should have changed the percentage writers or write the adjusting retroactively correct correct but but that's not your position our position here is that that's not your position your position  with your honor because we don't we don't come to the court with a single solution our view is that duty to ensure in whole three requires an e p a to do something either make a prediction in advance either make adjustments during the year or at the end of the year look back at the shortfall and carry it forward like that if if you if you have a proposal it's not enough to say to him correct me if i'm wrong side enough to see to an agency you've got a problem you have to address it you have to specifically identify the problem and comments and so i point the court to pages fourteen thirty nine and fourteen forty which are the response it comes here's what the agency said they interpreted the word ensure the agency addressed the scope of its duty to ensure agency concluded that it exemptions moreover in response to the comments he said and i quote the current approach for accounting for smaller fire hardship exemptions is appropriate and no changes are necessary and as this court said in an  when an agency is in use it legal conclusion like that no change their nest syria he assumption or of violence something for that not to be an arbitrary and capricious conclusion is that the agency decided that the statute does not require accounting for claims that the statute hits it from carrying forward short balls and so on are free to say no those are both wrong you are in a very good position to make predictions and you are not ok different caring for short haul there are short fall therefore let's go back november percentage standards the reason why i'm e p a does that is that to assign a share of the obligation to parties that are obviously going to be exempt would not quote ensure that the requirements of paragraph two are met it would do the exact opposite it would ensure that the requirements will not be met and so the exact refinery it's more for exemptions that are being granted afterwards retroactively are no different than those green overs more minor exemptions as i sa position is that it is pure speculation and it would have to guess at what is going to do in a future year that is not true reasonable predictions first off or what the whole process is that culminates in november percentage standards of that mr carlisle just told you is going to grant in the next year and that's because there is no entity in the united states that has superior access to information about this program other than e p a e p a runs the program e p a determines the scope of the program e p a can ask for any information it wants and as we know in our brief e p a already does when a smaller fire applies for an exemption and one of the things that they are required by regulation to a test is how long that require thinks it will need to be exempt so every november even if he hasn't officially granted the exemption for the next year it has already a wealth of information to allow it to make a reasonable prediction and so just tell that may not be the only solution but  and then we can we can talk about whether or not that satisfies the duty to ensure but e p a s view that it needs absolutely perfect information by november thirtieth each year in order to make an adjustment that ensures the requirements of paragraph two is incorrect section three section oath three requires that e g ensure all the requirements of paragraph two not just the requirements that are applicable to the following year and in fact e p a s practice is to not treat the years as problem from twenty sixteen in other words this court identified a shortfall in twenty sixteen in e p a said it will correct that shortfall by adding five hundred million or into a future year that's essentially what we're saying is a possible solution to the smaller fine problem look back how many sensient did you grant how many were retroactive what was the shortfall carry it forward it n p are ok this court decided that it was permissible for e p a in two thousand and nine and in two thousand  consolidate two compliant years because e p a was late in issuing the two thousand and one rule that would not be that would not have been approved by this court if two thousand and nine was hermetically sealed off from two thousand and ten and of course we have carryover ins which are not being challenged today but carry over into represent over compliance in the past e p a carries forward over compliance so that it averages out in a future year all we're saying is that it's permissible for the agency to carry forward under compliance that it's more fi exemptions create so just table again our position is that the only question is whether that duty to ensure requires e p a to do something maybe that something is an ex ante estimate maybe it's an ex post correction e p a in response to comments went at length on its duty to ensure it itself decided that it would not make any changes because none were necessary the e p a was wrong the statute requires something something that is necessary if i may just major problem with this your honour's is what e p a failed to address and what it said when it first adopted the reason of a terrible standard we quote this in our brief reply brief a page is that tina sixteen rather than give the whole j to the register but what it said was quote explicitly intentionally establishing a volume requirement for advanced biofuel that is below the level we believe is reasonably tina would be inconsistent with the goals of the program inconsistent with the goals of the program that prior statement that nothing that the level would not be people over reasonably attainable plus the fact that a reasonably attainable standard in considers how much investment the ruble fuel producers have made what is the current capacity together under the supreme court since you know more cars and fox broadcasting cases require the e p a to do more than acknowledge a change in its position it has to explain how the new position is consistent with the old one and e p a we submit can't do that i think be simplest enough for the court to reverse and send us back for the agency simply to try to explain how a position it said three years ago was inconsistent with the statute has suddenly become consistent with the statute and that would be sufficient for our purposes but we in light of what was said that anything a lower than reasonably attainable would be inconsistent with the program and it gives a very strong turn argument this is inconsistent with the program so maybe your point just chill is that they did say enough and were just it very limited circumstances supports our view that cost may not be considered under this a lawsuit where moreover and this is this gets to our question about what are the limits on e p a s discretion this court has continually approved that discretion  broad but has never said what are the limits on that discretion and our argument is that the court should try to save the statute in a way that provides some intelligible principle that intelligible principle come from the statement purposes often  and he does not dispute that no entity suggested their position and comments and that it can only point to a fundamentally different proposal by the product it's attached to excuse its value of come up comment by complaining about a purported lack of notice is on although it is somewhat unclear to me whether or not and it is still standing behind that argument is a particular argument it wants this court to address ultimately predictions have to be based on some adequate record here have a record before it that would not amount to speculation and prejudgment in trying to gas beforehand who may apply for or receive small refinery exemptions although any of you claims that you can predict those exemptions four team that was not its approach this is seventy nine federal register forty two one five two moreover even if moreover although facility is receiving exemption attempt to predict when they can meet the standards they are not bound by their their predictions and are free to seek further exemptions if you have us does not have reliable information before it as to who may even seek an exemption in a given year as easy a overestimating exemptions would require obligated parties to consume more than the statutory minimum volume of renewable fuel that requirement would be impermissible e t h and not require obligated parties to consume more renewa fuel than it determines is appropriate under the volume standard next andy argues that e t a must create a region regime in which it routinely adjusts future standards to account for past exemptions but this is contrary the r f s stance you as we indicated in our brief at page seventy six the structure and text of the statute demonstrate that congress intended that the standards for a particular year should generally be generally viz that in a doesn't mean that congress anticipate it you would create a wall that this that they are of us program is no longer predicted moreover and these approach is also not reconcilable with the fact that congress granted u p a only a waiver authorities to reduce the minimum required volume specified by the statute and he does not deny that its approach could require the p a to raise the volume still bubbles above those in the statutory tables but argues that this is an unlikely scenario this factors that he considered those are summarized in the twenty eight hundred or at five eight five zero four three one five eight five one three and in addition e p a was not obligated was not examining costs increased policy emphasis on the impacts of those costs under long standing president like funks and the national association of homebuilders e p a is allowed to change its approach and considering whether the cost of a higher  not regulations on a broad standard that making both considered other factors and expressly about the discussion that and he cites by noting that its determination was with regard to twenty sixteen specifically in addition as as this court has previously held the statute does not directly p a a to consider any particular factors which gives the e p a broad discretion and the court has already rejected and bebe's opinion that consideration of cost will undermine the statute statutory purpose when it expl case that congress quote did not personally with the purposes of increased renewable fuel generation at all costs finally the statute itself refutes refutes and b d s policy argument one stated purpose of the a good morning again your honour's i don't want to belabor points that i think mr miles already actually made i will state only that we agree with him that the issue is not properly preserved since no one raised this point in comments in the on that ground independently but let me turn to a slightly different take on the statue that i don't think i heard mr carlyle before this morning and i think is worth bearing in mind  your honour's if you look at the way the session works yes we start with these volumes that are in the tables and paragraph two but in terms of actually obligating the  refiners lenders and workers who are subject to this what he does it sets percentage standards and is a percentage of all transportation fuel introduced into commerce in the united states that a percentage standard the actual volume used in here is going to go up and down depending on how much gasoline or how much transportation fuels actually introduce new concepts some years it may be go because they're transportation fuel introduced so congress didn't anticipate despite its use of the were in sure that these volumes are used that you would use that those are anything but predictive estimation things will vary the waiver authorities the session calls for an adjustment there the fact that congress meet no other provision for adjustment or that if you hit the reset provision which is not an issue in this case today i think resolves the question i guess national  understood that the duty to ensure required a period you all look back and see what kind of exit what kind of fuel might have been used by those more wineries in the last year and if they used it you don't have to carry forward one hundred percent of the shortfall only carry for ninety percent only carry or eighty percent yeah e p a today and in its brief tells us court that it is prohibited under the statute from doing carry forward that is inconsistent with the word ensure it is inconsistent with the obvious meaning of both three that it had been secretly giving billions of rins worth of exemptions every year for the last few years and that's why your honour's we rely so heavily on the and hard d c case there this court said quote e p a s response to comment setting a percentage standard so it's no answer to say that we're somehow taking the duty to ensure out of context which is all that the c e o and less the court has any further questions to be asked that the rule be reversed thank  mandating fifteen billion gallons of corn ethanol to be placed into the market comprising nearly forty percent of u s corn production which itself concludes in its own reports causes millions of acres of native gras sland to be converted to corn fields but they tended water pollution from from allies or in pesticide out with haitian this action is directly harming endangered species and critical habitat e p a has nonetheless refused to comply with  statutory duty to consult with expert wildlife agencies before promulgating the twenty eight hundred rouble fuel standard issuing its general waiver denial and in administering the renewable fuel standard program which is having ongoing compounding facts on endangered species in fact e p a is post hoc no effective determination raised for the first time in litigation insight into a single sentence in a response to comments does not suffice as an effects determination under the endangered species act you still are to consult plainly violate section seven of the statute and i ask you this and so in your july twenty seventh team notice several actions relating to setting annual volumetric stander approving new pathways for renewable fuels exercising or failing to exercise waiver authority and then target for a twenty eight team we meet the reasonable specificity standard set up in the clean air act section three zero seven we're going to what's your best authority that this is specific  reason why i'm concerned about the lack of specificity to the e p a about the failure to consult that the december notice rule does it specify after it finalized its twenty eight hundred standard it does specify the twenty notification does best to fight the twenty eighteen standard and it's a violation for failure to consult under the endangered species act where the december  appendix s j thirty artwork page oh it's patient money and one of our notice letter sorry so it does specifically identify the twenty eighteen standard after it was final think that's not too late well at its heart these are endangered species act citizen suit claims and so when looking at what what is sufficient for a notice under the endangered species act really all the relevant material is is is applicable and so this actually meets the endangered species act notification claims but under cleaner exception three or seven this does meet the reasonable specificity threshold i believe that the july notice letter does in the in that it provides adequate notification of e p a s rule making and in the individual targets set out in the statute and it also provides ample evidence on  the history of an attack on either the two thousand buy or not on the statute but the two thousand and five two thousand and seven statutes amending already affect it would we be worrying them to consult in the future it would be ordering them to actually consult on the value of certain twenty eighteen because those are the same values that they've actually sat in twenty nineteen invalidated jeopardy analysis for failing to to consider the past in ongoing acts of agency's actions so that would be part of any consultation in twenty eighteen but there is but probably not consultation is not a new concept the endangered species  requires explicitly that that agencies consult on programs of any kind that may affect a protected species and the effects of an action just signed in the endangered species act regulations include direct and indirect effects in the effects resulting from i understand that i'm just trying to understand what assume you were right on everything him what our order would say with direct the agency well first of all we ask you an innocent question why wouldn't we since you say in your brief you want us order the agency to consult but isn't there a there's something of an innocent thing he doesn't the agency first have to make an effects determination yes your honor said so so the remedy you're seeking would expire this is when february the that's right they will expire in the in the four correct that is correct so what happens so this isn't this is a situation that falls into the parties in addition as much as they're trying your course demonstrate that as mean as much as seven point eight million acres of grassley and other habitat have been converted for biofuel production corn production requires increased fertilizer and pesticides with direct causal links to increased water pollution in the form of the pox and algal blooms that degrade aquatic in marine habitat environmental biofuels resulting in water pollution that compromises their their visits at the very least this evidence demonstrates there is a substantial probability that their mandate creates a demonstrably risk of harm to protected species and thereby enters environmental petitioner's members in fact causation here is consistent with this is court's ruling and center for biological diverse that diversity where this court held that the pesticide e p a approved for placement on the market was most likely going to be applied by farmers to land areas of concern here obligated parties are certain to place fifteen million gallons of corn ethanol into the market in twenty eighteen necessarily requiring massive ethanol production which has known how verse impacts to list a species  the actions at issue here are all discretionary the waiver determination defines the e p a s broad scope of discretion to reduce volumes based on severe environmental and economic harm in fact e p a explicitly  however consistent with this court's ruling in american birth conservancy versus f c c a single sentence without any endangered species act context or explanation of possible effects on species does not suffice for an effects determination determination first is you know whether petitioner to preserve this argument and what is the appropriate action under review second all dressed in peace determination that it made on these issues and thoroughly arresting and so first to get at the specificity points the writer was talking about the comic writers there was one in july and one after the rule issue and there's two problems with that both those come letters were issued outside the agency must consult over that and so they point to their third yes a citizen sued notice of intent which came after the process concluded in this course decision i'm size for a c t a per clue some kind of post h have here in the clean air act that provision controls and that means it must be so you know we all i think they agree that the case is properly here the question is is is this question of whether or not your argument is a consultation with these two agencies in setting any will volumetric standards for renewable fuels now what else could they have been standards for renewable fuel and that's also and then it goes on quote in failing to exercise its waiver of thore that is that's the twenty eight hundred rule so what's what's true doesn't say it specifically realize it doesn't say twenty team what else could they have been talking about when they were referring to and you're setting anyone volumetric standards that's all that was going on that it was the twenty eighteen rule where the annual volumetric standards were being set well i actually actually asked for a lot more specifically by taking several actions under the program which is now the rule including but not limited to the annual value metric standards and the waiver authority and these new fuel pathways and i think that's what we're seeing in this case they're going t of that's not what women i agree with you that here i'm just looking for something here i totally agree with you that there are parts of their briefs that look like they're challenging the whole program and they can't do that here can't i completely agree with that but but the ok the the petition for review that is the actual decision for review focus is the civically on the failure to consult with respect to that they specifically mention that i get your point that they can't go beyond the twenty people but i understand that but then their petition for you know briefly do focus on you know i hear your argument about addressed in that context whether there is severe environmental harm and so you went through and i looked at the market factors the economic factors regulatory factors that bear on this question and this specifically found that there's two thousand eight find that this action is not in there does use the words reasonably certain but if you look at the e s a regulations under finding one of fact to be actually has fifty c f r four o two point zero two indirect effects and those effects caused by the action that arise later in time but are still reasonably certain to occur so that reasonably certain component is part of the definition under the e s a of an effect of the action in this court's decision and see beavers deal like two thousand  we're sorry two thousand and nine case i use the same language in determining whether the agency they're under console this court affirmed that it didn't because quote it is not certain in court that there are going to be a fast indeed or threatened species at this stage of the pro this role does not affect and that it went through and explained the reasons why which is something that petitioners just avoid in this case it looked at what is the influence on corn production what is the influence on somebody in production so winter all the regulatory factors and it made a determination as to its taro you pointed out earlier that determination is reviewed under the arbitrary capricious law i totally understand that but there has to be a determination to be our position as it absolutely made that determination and those five pages and the yes it doesn't require some kind of procedural process to label it as a no effect a termination what it does is it asks the user to pay attention and make that determination the agency did it arm so the question here is whether that determination is reasonable and the other comment even if there's even if that fine is arbitrary and capricious one of the court's questions was what happens then in this court's decision and sunni versus you create identified what the remedy was it was exactly that if the determination is not the agency to make a decision that the remedy is to go make that critical issue in this case is what is the effect of the two thousand and eight little that's looking to let you know i've seen a lot of standing cases i've never seen an agency report quite as clearly demonstrate standing as this one and it says directly that this has caused these changes and then it goes on and says evidence from of the patients of land use changes suggests that some of this increase in acreage is a consequence of increased biofuel production a consequence of increased biofuel production and it is likely that environmental and resource conservation impacts associated with land use or at least in part due to increase and that was the exact point before i don't want her stance is that where you have a generally a political regulation you still need to provide evidence linking all these steps from the action you're challenging to the actual specific the facts and the specific parts of the country there's a concern about so just because even if there is some correlation between these two things they still need to take it a step further and prove that that correlation that's generally applicable throughout the united states so again our bottom line is there is a lot of cultural change this rule regulates obligated parties only you still have a lot of links with a lot of uncertainty to get from that specific rule to a concrete payment injury to that the parties are required to provide adequate notification of the general substance of the clerk complaint and so we believe that what is in the july notice letter into the december notice letter the july notice letter was fi