this is the time and place for hearing in the northwest environmental advocates case just sort of the cases are council ready and you've agreed among yourselves there's the time distribution yes ok rule making was permissible and third i would like to make the point that if the denial was arbitrary and capricious as a temper two thousand and eight make your deadline of the regulation is inappropriate especially considering that we're talking new federal register comment period about a week ago trying to gather more information and we're talking about adding to the n p t s program some eighteen million new sources that are  highly mobile that have never been regulated before and that that is a huge undertaking for the agency whenever you're talking about a program that currently only covers about fifty five five hundred fifty thousand sources so i'd like to move first to the timeliness question and whether or not review can be had of the original underlying regulation the clean water act in that act congress provided that challenges to regulations like this one need to be brought within one hundred twenty days of a regulations promulgated by that standard a challenge to the petition for rule making and that makes sense whenever you look at the big picture of what congress was trying to accomplish in this argument that we don't have that the district judge did not have jurisdiction that's correct i'd be happy to answer any questions about that but i'm not i'm not and this court is held on three separate occasions that review of regulatory exclusions that define the scope of the n p t s program and relate to those permits that review was had initially in the courts of more mines that would be exempt from the n p t s permit requirements that wasn't really about setting up regulations that was literally which mines are going to require n p t s permits and which ones are not that's the same thing that we're talking about here and so i think under that precedents this court has original jurisdiction and the other part of that is under do not require permits that is defining the scope of the m p s program and is also should be reviewed initially in the courts of appeals and again if you if you look at the big picture what congress was trying to accomplish was in this highly this procedural device which n w a has followed here petitioning the agency to take a new action and then if you're making an ultra vires allegation you can get review of that denial of that petition for rule making or other action the court as well this is an application as to them and therefore we can get out the underlying question which is to say whether or not there's an obligation to regulate and i must describing leave i think that police again involved the same sort of procedural device of asking the agency to regulate and then you get review will review of the denial of that petition to regulate essentially and so that's the same thing that's going on here it still allows and my understanding of lea suggested then it probably does have to be would be inconsistent with wind river but that is the binding precedent in this circuit and i don't think that we've necessarily has to be read that way the court was very careful in what it whenever it was writing the opinion i think and describing what was being challenged and what it was reviewing and so i don't think that it necessarily has to be read as inconsistent on the merits congress has acquiesce has longstanding interpretation of the clean water act in this instance and that is evidenced by two types of congressional action one is congress has made it clear in an act of legislation twice hundred seventy nine where congress ratified the portion of the regulation that says the exemption does not apply to vessels littering gaged and recovery of resources the second important thing that congress has done is that in case congress has set up a new regulatory regime much like we had in brown and williamson tobacco and directed either e p a to administer it but not under the m p s program or in a couple very important cases  so in the if i can talk just a little bit about ballots water which is the issue that it seems to initially prompted this lawsuit is what the agency thought was really being asked of it in the petition for review congress with difficulty sad when it was faced with the problem in ballast water it's in sort of the coast guard first i want you to institute voluntary guidelines on vessels it doesn't apply to everyone then it said go ahead and make some of those mandatory and then it said if certain criteria are met all of the the requirements to be mandatory throughout the country congress took a very deliberate approach to this problem it didn't which is intention or even inconsistent with the plaintiff's argument that the  prohibits all of these discharges barring and n p t s permits and i think that's pretty clear evidence that there is some ambiguity in the clean water act the congress was recognizing the e p a have the flexibility to act in this you know on both those doing this they have saved out clean water action off that's true but at the time that's those statutes were both an act of the regulation was already in existence and congress was acting against that backdrop and certainly of congress disagreed with the approach that e p a had taken and if i that the appropriate regulatory tool was to issue individual m p s permits to each of these vessels or the various discharges in various water bodies of various water qualities all those sorts of things it could have instructed e p a to go ahead and do that but it didn't it made a separate choice to regulate it under a different regime which is very similar to what we had and in brown and williamson we have a longstanding agency interpretation here one that's been in existence for thirty years and from near m just to be on the order of thousands additional of additional votes that could have ballast water discharges but the millions of recreational vessels basically anything with an engine because the regulation exams discharges from properly functioning marine engines that's a huge undertaking for e p a it's an area they haven't regulated in before and they should simply have more time to think about the problem ok thank you firm representing the shipping industry ballast water call ation it's foreign to domestic carriers that carry a large portion of the domestic water borne commerce in the united states eighty percent of all the import and export commerce of the united states is carried on vessels that would be affected by this ruling and our concern we agree with e p a on the merits obviously but our concern on the ramadan which is what i would like to focus most of my attention on is that if we are not allowed to discharge ballast water we cannot operate our vessels safely and eight hundred billion dollars worth of maritime commerce comes grinding to a halt ballast water has to be used and just charged in vessel operation where the ship risks bait breaking up and sinking it's an absolutely necessary part and i don't think anybody wants all your ships up on the shore let me ask you this your brief states very persuasively that a lot of this is already regulated by coast guard regulations so out on the ocean you're supposed to exchange and sort of pump out the bad stuff and only have just sort of regular old ocean water in until i'm correct it occurs to me to wonder that the e p a isn't going to engage in rule making under the clean water act  that a lot of the work has probably already been done for us by what the coast guard is doing what additional regulation might you be worried about well i think there is a seam seems to me that you know that a lot of the problems are already being taken care of maybe there are some more problems but nobody's asking issues the regulations and challenge their adoption of coast guard regulations there are plenty of other plaintiffs out there of the standing in this case was somebody who was on a river and said he was disturbed by the fact that there were invasive species in the water so we have a literally limitless supply of potential plaintiffs who can come in and say no the coast guard regulation is not enough you're required to adopt technology based standards a different standard under the sea under the clean water act in the clean water act does have a different standard so we're open to the problem that if the exemption is vacated e p a has already said that i think quite persuasively that they're really concerned about being ready and time because of the unprecedented president and nature of all of this we're going to be faced with lawsuits maybe not from these plaintiffs according to their representations but from others that additional regulation is required under the clean water act application of certain technologies that we don't believe the ban except that are proven to be a factor for commercially available  september two thousand and three and petitioners timely challenge within one hundred twenty days that denial both in this court and the district court in china timely challenging the vassal discharge of the denial petitioners have also timely challenge the regulation itself as this court explained in when river mining corporation versus the united states when a challenger wishes to contest the substance of an agency's action as exceeding constitutional or statutory authority the challenger may do so by challenging the application of that unlawful agency action to the particular challenge or within six years of that application that's precisely what the petitioners have done here and it's precisely what the other courts including the d c circuit and the eleventh circuit have allowed where we timely challenge an agency action that relies on unlawful regulation the court can reach both the application and the unlawful regulation and reaching this regulation  also based on the district or the d c circuit case in public citizen versus the nuclear regulatory commission case and in that case public service and challenge an agency regulation that was based in part on an earlier agency regulation in fact reach back the d c circuit specifically noted that it would exercise jurisdiction over both regulations because otherwise public citizen could simply have to file the petition with the agency ask the agency to rescind the earlier regulation as being ultra virus and then filed a challenge to the agency's denial of that petition challenging both the denial and the underlying regulation so when very very explicitly relied on the public service and case which explicitly  not be able to overweight judicial review forever over in all true virus regulation this court drew a clear distinction between challenges to agency actions that are based on procedural cl right to review after the statute of limitations but where an agency is acting contrary to law and implementing rules that remain in effect and continue to have effect over the public then the public in fact should be able to engage in the type of  supreme court stated in united states versus met where congress explicitly in numerate certain exceptions to general prohibited an additional exceptions are not to be implied in the absence of a contrary legislative intent the only thing in the legislative history that even he has pointed to and that we have found is that congress referenced the vassal discharge exemption here and then chose to carve out a much more limited exemption for military vessels specifically th congress never in the legislative history signaled its approval of this exemption and what this court said this year and morality scioto versus gonzales is that this court will find congressional acquiescence only in those rare instances where it is very clear that the congress has considered and approved of an agency's practice there is no indicia of approval in fact this is just like in the solid waste agency of northern cook county case out of the supreme court court found that the agency's site some legislative history showing congressional recognition certainly did not meet the standard for at congressional acquiescence can you help me i'm having trouble distinguishing before the supreme court in the massachusetts vs a case decided in april of this year e p a argued that congress as an act meant of later legislation that address climate change on through various bills somehow signaled congress' override the operative law in fact all of these laws can complement each other and the clean water act in fact provides the actual tool for allowing the clause to complement each other section four o two g of the clean water act in the niftiest program next permit as congress anticipated let me just let me ask you this now that we've got the coast guard regulations on the table what do you want was a practical matter in addition to what's already being required by the coast guard your hon post and regulations you are now the record reflects of the coast guard regulations as currently implemented are not adequate in fact the declarations submitted to the district court by the e p a demonstrate that the ballast water exchange regime that the implemented is not sufficient the record shows that if you exchange up to ninety five percent of the water in a ballast tank you could kill only between twenty to maybe ninety percent of the species and with  regulators in terms of crafting the initial net these program but at the flip side the whole purpose of the clean water act was to be a technology forcing statute every five years the permits are supposed to be revised every three years absolutely limitations are supposed to be reconsidered and the idea as manifested in congress as ultimate zero discharge goal is that technology and fact would bring us to a point where water pollution would not be the problem  limit taishan program as its most successful environmental program but unless we get a permit system in place we will never have the successes that he has achieved for these types of very harmful pollutants your owners turning back very acquiescence it made clear that f d a vs vs brown and williamson applied to those limited circumstances in which they were really irreconcilable conflicts between the underlying law and the later an act minutes in brown and williamson there were repeated and multiple over a course of decades references to the fact that f d a had repeatedly stated that it lacked regulatory authority and congress had in fact relied on those statements in an acting later waters the united states under the clean water act it's difficult to imagine if you was right that congress was preserving the clean water act with an exemption in place when the preservation would mean nothing at all and then the act similarly states that the remedies of that act supplement and neither amend nor repeal any other provision in law so unlike in that the abers is run on williamson where congress in fact was acting on the basis that there was no underlying law and these later laws congress in fact preserved the clean water act so there cannot be a finding of congressional acquiescence here and certainly there is absolutely no overwhelming evidence that e p a has presented to meet that standard and very briefly your honor so i would note that in this case because this regulation is ultra verus flatly contrary to the statute the proper remedy in this case is to set it aside or invalidate it this is mandated under the the courtroom hoffman from the new york attorney general's office on behalf of new york illinois and michigan minnesota wisconsin and pennsylvania your honor the states are in great need of the district court's time to remedy in this case invasive species are damaging ecosystems like the great lakes like san francisco bay they're causing a reparable harm and damaging the integrity of those ecosystems which is what the clean water act is designed to protect the district court's injunction we think should be infirmed farm for three reasons  devoid of any statutory authority and finally a response to this ongoing environmental harm in a balanced way that is again well within the court's discretion your honour's the clean water act requires pollution controls that improve over time and those kind of controls don't even begin to happen without the permit system the overarching principle of the act is that no one has the right to pollute all pollutant discharges require permits the e p a vessel exemption disables the act congress made the permit system key to creating a uniform national floor of pollution control e p a established standards were intended to become a uniform and minimum pollution protections across the country perm would translate those standards into obligations for similar discharges across the country destructors the exemption prevents those kind of minimally protective standards from ever being stepped let alone improved upon over time the exemption for closes the uniform ratcheting down of pollution that is the hallmark of the clean water act they caning it lets the statute work again as congress intended vacating the exemption is the right legal remedy as mr powers alluded to  perform duty of the law in the form of you may not be really your honor we believe that the district court selection of that date was reasonable for a number of reasons the court considered first the fact of the irreparable harm we have a type of pollution that actually produces an colonizes ecosystem so it's a literally a problem that grows over time but more than that the district court considered the fact that he has been working with the coast guard for years on technology controls for that most very harmful kind of discharge the invasive species discharges from approximately eight thousand trans oceanic vessels nationwide e p a has never said it could not meet that date what they have said is attached to their reply brief they acknowledge that indeed they came up with a multi state stormwater discharge program in less time than if you measure it from the court's liability order until the september or wait date only something this court is well familiar with but in the mississippi case the supreme court recognized that for some classes of vessels they need only comply with all they need to do is that here in the terms of the permit they don't even need to submit a notice of intent so there are a great many flexibilities that is the beauty of the clean water act congress made the decision a long time ago pollution control first administrative feasibility can be worked out thank you virus is really important to be of congress talking in very specific language and setting strict deadlines and saying that challenges and he challenges beyond that period must be based on new information which is not the case that we have here so i would urge this court to  get back to the agency allow it to consider whether there are any other rationales which is the district court recognized some of that denial might be justified under ada minimalists understanding and allow the agency to you know off of marine engines most marine engines in fact i think all of them are water cooled and so and but he does that is a pollutant under the clean water act u p a might decide that that heat coming off of you know a certain class about say jet skis that's i do minimal source of pollution and therefore doesn't require an m p s permit e p a should have the opportunity to justify you know parts of the regulation based on those alternate type theories on remained in the regulations should not be vacated and what if we were just say ok you can exercise discretion or various ways but we want to tell you that to the degree that your order denying warming was premised on the idea you know that you have the authority to entirely explore this category of behavior woman that was ultra vir this court can say that but what it should not say what's the advantage for you then of are engaging in that level review rather than going to the district court i don't get it the advantage is a very practical one which is that if you stand back and tell the agency ok look at the petition for we're making again you know what the night circuits holding is you know that you can't rely on the congressional acquiescence type arguments then of the agency can if it wants to deny part of the pitch and say ok well justification and if you p a developed the record on that issue and looked at the various discharges then perhaps you could come to that conclusion really our questions are taking you will over your time you want to one quick up i just want to say that i think ultimately the question is that congress has shown over the years acting against the background of the e p a s longstanding regulation that