nor do we have informal policy statements or anything akin to those right we have a statement of a legal rule that isn't batted an individual agency  cations right so the normal way that gets reviewed is on a challenge to the to the cation which you haven't done and indeed you couldn't do because you wouldn't be in this court if you had framed your challenge that way and above and beyond the adjudications we just have a legal proposition in the ether or in your honor with all respect i don't think it's an either so we have there's a definition of disproportionate economic hardship and that has been ever since they were changing our methodology so the agency has made a clear statement that they're changing their methodology and that has pursued a sense then and eighty five dollars to one hundred dollars cases none of the real utilizing that other requirement of public notice right that's correct but i don't think that is me you're in it you're in it you may be in a tough position to figure out what's happening but you still have to point to an identifiable warning to the decision to change the methodology by which the agency considers petitions for review and the methodology is laid out you know clearly in one paragraph that is repeated throughout all th decision and then eventually as of this year is simply used to resolve thirty one missions all the ones so it is it is a change in methodology whereby the agency no longer considers the considers disproportionate economic hardship differently than the  nd major changes that was what the statute requires right before you said there were two places where this was announced i thought i heard you say there were two specific think they were making this argument about that one but as to the new way of assessing disproportionate hardship you say there is a paragraph that now shows up in every decision yes so there was  revised methodology by which organization will be considered going forward so they have stated that prior to this and it's their language and they're going to prior to this they used their department of energy study without showing an effect on viability we're changing our approach from that moment forward in every single petition that they have their sleep what's the vehicle for announcing that change it was announced and each one of these decisions respect we've always gotten on this is that while these decisions are individual petitions they're very highly facts to set up but i think that argument kind of crumbles when you take a look at the fact that as a few one thousand and eighteen they're not even looking at individual relief which of those is whatever it is you're asking us to review this policy that you're asking us to review so i never been provided to minister to record what led to this decision no i don't believe you need you need to point to a rule order of license sanction relief or something equivalent well it's a relief because they are suddenly providing all of these parties relief from a statute based on what they want is the relief or other method other than the individual order and they're providing relief to a refinery that is seeking that we've been kind of a little bit battling with e p a over do you have aware of it we became aware of it there was a dashboard when it came out on the dashboard and then it was announced in another place  decision otherwise the difficulty is i understand your concerns about secret law that if your theory is that somebody higher up said use this and you have evidence used would point to because it shows up in all these different decisions but what are we separate we're not going to do fact finding european people i don't know i don't know what it is just until the saying i don't even know what we seems to me i don't know how your petition for review which was filed long before that decision came out would encompass an agency action that happens afterwards wouldn't i couldn't tell your petition for mutants it wasn't clear to me that yes you're trying to review everything that keeps happening while the petition group it was based on was based on the fact that we didn't have any we didn't have we didn't know what the agency action was because they didn't the market for these products these rings crashed and companies were slowly the test applied to simulate everything on the merits of the hypothetical for the test applied in an individual case granting an exemption what is a consequence to that individual companies exemption with a with a stroke i'm asking you what happens then individual exemptions so that that i think that u p a would have the discretion and they would have to make a determination not using that standard of whether or not these companies they would have to redo that individual decide whether it's national or local so on the face of all of these these orders apply to one and only one refinery and your theory is well yes but the underlying rational the national in scope and the statute specifically addresses that scenario by saying an individual order can go on the national track if the reasoning is national if and only  two thousand and eighteen when they issued all visa once they have now said it should be in pieces and you think that you think that statement counts as e p a finding and publishing that such actions based on such a national determination with your meaning of the judicial review provision this year i do i get i don't think that they should be worried if they were making such a significant change something that shifted billions of dollars of revenue around by difficulties i understand your concerns about lack of transparency and openness they will lead them in that making decisions on them if we were to assume you were correct that there was a secret rule and then cause all these decisions it's very hard for us to figure out how to address that and quite complicated if the father is that we could be reviewing an individual lies exemption  refineries and a national rule at that so there it's at least announced a memorandum from a higher up official announcing a legal position and i'm not saying what he would want to lose or be able to challenge others i'm sure is plenty of other issues to be litigated but at least that's something much more concrete i just wonder why that isn't your better view oh well this is concrete for our purposes we do something for courts to look at why disagreement in that case was brought in the any in their articulations but i don't think anyone thinks we can review any of those individual decisions here and so then we would have to say we are taking a footnote out of every one ry relief that the methodology of no longer considering buying go ready to go to a refinery is inconsistent with the statute and they've they've applied that across the work to every single decision since then so they've basically amended  because they're able to trade on this information ahead of the market because they know they're getting exemptions if you somehow were able to find out and a friend just got one time she was and told you is there any mechanism for you your company to one could you just seek review of the exemption decision when you were in a party to it you want to party to that education or would you be if you know it was ongoing would you be able to intervene or was trying to figure out mechanically there's another way well that's a problem there probably isn't because you were going to they were there would roll up the usual suspects we'd be told we don't have standing we'd be told that we have no interest in this he says he mechanically would you be able to find out for anything pertaining to the manner in which they are making decisions on requests for extensions of exemptions the government would know if you didn't go to court i'm not going to court there's another for your case that has  been out there by another group who has been litigating this and the documents have been slowly slowly trickling out i'm well aware of those and some of those are now just becoming but i think they can public in the last day or so and i believe you know from what i've heard about is you know they're actually supporters where the agency made a very deliberate decision to change its methodology in order to grant extensions of exemptions to parties who never had an it and we explained this new change in policy and we have a reasonable explanation from so we have definitely changed our methodology and we gave a reasonable explanation for it seems to me you can't have one or the other is is there and so so your position is and i'm trying to figure out is if there's this common language that is showing up in all of these decisions and announcing this change methodology and so it seems to me my sumption is you're not he's not making this up as he goes along that there's rigor and integrity of the decision making in the sense that the same laws being applied in all these cases and reveal is that there is now a new legal rule that's been applying in all of these cases and formulated i guess by this official or maybe someone higher up we set it down but you have an agency official the central national agency official who has adopted a new changed legal rule that applies in every single case how is it that that can't be challenged as a national rule i think we would disagree with your on that it's it's a statement that the agency of the state if the agencies vision with regard to how it's interpreting the statute it  consistently to everybody who applies for an exemption the documents reflect the documents and the history of record in this case reflect that the agency applied it consistently does not make it a national i was just  as this question get a time so there is a central decision maker who has adopted an interpretation that is applied as they were consistently as a legal rule of decision in all exemption cases in my or changing our methodology here with analogy here is the new legal standard that i will apply consistently in every exemption case to make this decision you did if you see if you really are that he or she s action it reflects the agency's decision on multiple petitions st more primary exemption was is that i know the memo carefully says this is how we've decided this group of thirty one  adjudication so it's not like you have a rule that they didn't receive any they can't see and they don't know about it so you have the difficulty here normally in adjudications you have the agency and the party affected and the party effective is if they're happy with the agency unhappy and when they're injured they know about it and they can seek review the difficulty here is you have the agency adopting a new methodology a new standard for decision that is consistently applied across the nation have any notice of the proceeding don't have anything past me when she told me otherwise to intervene or participate in that or even to know what the basis for the decision is so what are they supposed to do procedurally to challenge this new methodology that's hurting them what are they supposed to do when i think of the understand that it is frustrating because there is it was frustrating to the court because they're not i'm just asking a question for i don't have a frustration here i have a question i don't think it is fair to say that they have no opportunity to challenge these decisions there is an ongoing case in the th circuit now that is challenging small or frankly decisions that are almost the group that we provided to the court in this case so that being directed by another  three smaller finery exemption decisions are on ok but that is a pure fortuity of the refineries disclosed it right so let's assume we're in a world where the refineries for one who are benefiting from this don't disclose so you have an age and a new change agency methodology that isn't being up by consistently in all cases which are secret and in the party the party that's on the receiving end of that has no interest in i would like to get many answer the question how do they assert their legal challenges to the new methodology there's nothing to intervene and they can't identify the cases and they can't see on what basis you design of the cases so what should they that's a way to get information that is not a challenge to the new methodology applied in adopted by the agency so i'm asking again respectfully sir i think they are saying they are challenging the agenc failure to release this information that they have a mechanism part of their cases that are getting this information they have a mechanism to balance out the other judicial remedies to obtain that information and they have not done the court lacks jurisdiction is because they do not have the information and i am saying you and you are saying how can they get the information knowing you know not is not my question i but i will make it crystal clear my question is how can they education after adjudication how can they challenge that if they believe it may not be even if they believe it's lawless and i'm saying in order to do that they can bring their former case and  good government here they say you don't like what we did here how do i bring this challenge the confidentiality issues are difficult here i understand and i  just can't challenge it they can't bring this they can't get caught they have got information we've got a lot of the record here and they cobble together and said here's what we've identified what you just said and that is that there is a new change methodology that's been adopted by a person who then apply isn't nationwide we think it's lawless it might not be in my past chevrons that two or one or whatever your arguments will be but they say we think it's a lawless and we are injured and aggrieved and no one here is questioning their standing and so how do they bring that paper lawsuit or is your position that there can be no a to be very direct about it and i appreciate your trying to answer all right they have said we're not picking on one refiner or another we have this legal test that we wish to challenge now we can't i think that's why they say we're not looking to say it may be that even under the correct view of the legal test american their position the exemption would still be granted they don't know any of them i think that's i mean if it worth my time i think that's what they're saying what they want to say is there's th e problem is that what's driving the train here is something that is should not be remotely confidential and that is a new legal standard has been adopted on a nationwide basis and is being implemented consistently on a nationwide basis by a high level official in the agency in washington d c he disclosed that so we can challenge that and but you haven't you don't disclose that when you make exemption decisions with regard to the new legal standard i mean i  but the legal reasoning for the decision was released the date was released then they could do what you want them to do and challenge that legal task and say you can remain in court and let them we may not take away their refinery shows to release the information and my hype and my question to you is if that had not happened there's could how with the challenge let's assume it stays a secret as e p a is trading it how does the change in the legal standard being applied by the agency get challenge right so your answer is they should have filed a petition for review from those refiners whose exemptions they don't really want to find over but they should have filed a petition to those refiners release the content of the decision if if a intraparty to do it on a case by case basis it's not that their frustration is not to do it on a case by case basis the frustration is as you said unless you have the fortuity of roofline or disclosing and i'm taking that out  my hypothetical you see we can't do it there's you know the agency is not releasing any public information that would let us take the route they want to take and i think what i'm hearing from you is you think of releasing the information is not the answer because once they have the information you still say you can't challenge it you have to go i think your position as i read your brief is you have to go challenge it through and indeed you have to take up one or more of all removes the obligation for that small minority to have to comply for that year and so once a year is over it's moot whether they got the exemption or not but there is married or not but they got that exemption m or i don't know the answer to that question here there is no final agency action other than the individual adjudications and selves and those are regional on their face but that as they say they're not challenging them so this court they have venue  full stop i believe what makes them small is what makes them eligible for an exemption under this statute and articulate a legal rationale sends that down to this individual who makes all the exemption decisions says i'm your boss they will all be granted here's little legal a new changed legal rationale and it can be perfectly that's what's here i'm just trying to understand how this process moves so that's what happened in my hypothetical case and it's a secret memo and it doesn't get publicly disclosed but the way people get on the scent of  certainly one hundred percent of exemptions are being granted the decisions entirely secret and washed up no one can know what's going on in them a secret the decisions are secret other than the bottom line it shows up on well this is not they don't know it's kept secret all they can see is the number of decisions and how they're coming out so no a p lawsuit can be brought if there's confess i don't i don't know way in which to do that and like i said i think they can approach the agency maybe you should rule making or something along those lines that they want standards or they want to hear these types of things that there's they think there's a change i think they can do that whether they can go back in time in and do certain things that i think that's going to be on the march respective relief but i'd like to know what obviously the law changed because there's no this cannot possibly be a coincidence it's happening nationwide consistently and not only has the outcome changed but the volume has increased eight hundred percent right something has changed they don't they don't know whether any individual company might be entitled to an exemption or not they just won and the rules been  they want to challenge it i understand and i understand their frustrations with the jurisdiction over you provisions and three of seven and ways in which to get into you know knowledge that there's a final agency action in my hypothetical not this case and so you don't have that document the articulation of this change legal policy that hurts us that affects us gives us an article three injury and we would like to challenge it we don't know whether we disagree or not with any individualized exemption are decisions in the record where that articulation has no effect and that's why you need to write to the usual client that all this information was disclosed after they filed their petition with that all this information was disclosed after they filed their petition i believe so  expire but the damage is done but what we're looking for is some sort of perspective relieved in terms of the not being able to use this methodology going forward d for future decisions and it has been a quiet and  this change that i think you know the court should look at the effect it has and and the way it was articulated is important but it was articulated consistently and i think these are a little bit unique circumstances because you know the confidential business information you know they do have an ability to push back against these companies and say not everything is confidential i don't know what it is about this program that so you see you would think we're dealing with  national secrets here but um the fact is that there are ways for the agency to have the self and i don't think parties should be have to use for you know in order to bring in a ph case on something that no one's denied happened that's happened it just seems that they're they're just