west virginia and says hundreds and just i want to confirm i'm up here today to address all of the non merits issues with all three cases then mr barnes and professor tribe will speak to the statutory constitutional questions that go to the merits of all three cases reserved six minutes of my time for rebuttal your honor so there are three equally appropriate vehicles before this court to provide relief in this highly unusual case the request for a petition for review in the challenge of the settlement agreement which i will address in that order if i may first to read three reasons together with this case comfortably within this court's on the supreme court right it's it's not going to be a question that's avoided it's we're going to get to this right when the rule comes out it'll be challenge we're going to get to it why in the world we resort to an extraordinary rate which we've never used before so it really is quite unusual by the supreme court or definitively by this court only to apply to situations to protect this court's jurisdiction i think what the supreme court has said is review under the all writs act is is in the nature of an appell review but even if even if this court were to say use the truck language from the telecommunications case when turning eight of us to protect the jurisdiction i think one of the issues here is that there are there are remedies that this court cannot provide in the future and that gets to one of the three reasons which is that there are ongoing harms that cannot be adequately remedied and they're both so all the petitioners both the industry but especially to the states in any case in which  bracing for the cost of a proposed regulation has we've that we've had this article three c and standing there you know of any case in which we said you're bracing for what's coming down the pike therefore the standing where you are i think first i think there's a difference between bracing for the costs which may be more in the vein of what the private industry is doing but it's not just bracing they're making decisions that they have to make because  you know these utilities make decisions about five ten fifteen year horizon but more importantly what we have here that is unusual because it doesn't come up very much is a situation where what what the rule does is it makes the states become the primary regulators and you have before you decorations from eight experienced state regulators you still have the fact that what all we have in front of this is a proposed rule your proposed rule making nothing is final yet we don't know what the final rules can look like an edge and we can guess in the administrator hasn't very very helpful to the government's argument in this case with their statements i guess you could guess what the final bill would look like but i don't think that we're typically not of the business of guessing addressed in the first is that what we have here is the highly unusual circumstance of an agency that is using the cover of proposed rulemaking to avoid judicial review where in fact it hasn't made up its mind on the one issue that we're talking about how do we know that from the administrative statements we know that both from the mr statements but also from the statements in the rule and from the statement that she made when they announced the rule but there are plenty of instances in which an agency announces for a proposed rule as a dog an another situation where they have made statements of the definitive nature about the legal authority that they have made in the preamble to the rule if you compare the statements of the two year rule would have an ally review proposed rules based on what based on statements of the agency head that she thinks the proposed rule will look like the final rule is that that's is that the terrain you want to put into police into will get us into those  where there are definitive statements about this particular issue the section one twelve exclusion and if you compare those statements in the preamble to the other statements about the other legal questions what is the best system of emissions reduction whether the best system of of emissions reduction will be applied statewide all of those are stated in terms of this is what he is proposing well known your second or the second is the ongoing harms that are especially being incurred by the states that cannot be adequately addressed and the third is that this is an absolute prohibition and this gets to judge griffiths question the one issue that is here before this court it does not matter if we are right it does not matter what else happens here because there is no rule of any kind that can be issued against there can be under the issued under one of them indeed to regulate existing power plants because there is a section one twelve rule and i think this falls i mean there are there are a when our position is that we don't think we'll ever see three a situation where there are these three unique circumstances again in particular the first one because if this court holds issues are raised here and says one of the reasons is that the agency has is is using a proposed rule making to have a judicial review with it has in fact made up its mind that it will issue a rule that is something an agency can adapt to and they will not do this kind of thing again we won't see this again and secondly i think the other reason that this is highly unusual which we talked about but out i think it's worth emphasizing is this is a case involving where the federal government saying that the states are going to be the primary regulators and where the administrator said on day one states need to be begin preparing and that's not something that you're going to see a lot i mean there are quater federalism regimes out there but there are not mean you know as compared to the univers of rules situations where you have states that must begin preparing now both because of the statement of the administrator and the finality that's clear from the rule that there will be a rule that does seem like there are lots of  what's coming down right now in trouble seem a wind chill but i think again you i think there's an important distinction between while that there are very significant harms to the industry petitioners and because they're in there are there going to be investments an important issues there are understand your honour's concern that maybe that comes up in a lot of cases but here we have states right we have here are as you knowledge there are lots of programs squawker federalism programs worse than lots of declarations are important we have eight experienced state regulators who have we cleaned them and i reached over two decades of experience each and they all say to the person they have never seen a rule like this one that as the administrator herself has said it attempts to regulate from plant to plug in this is about fundamentally reordering the way the energy is provided within our borders and each one of these regulators says maybe the final  sauce i know you don't think that's a possibility that the whole point of our having our common purity even when you're adding a beginning is maybe you'll tweak it maybe you'll change your mind entirely sometimes people do that sometimes words do that they change their mind based on arguments and reconsider things and for us to get in the middle of this before that's happened scenes i wouldn't usual the whole done before if we were to do that it would invite lots of other challenges before a rule is finalized and then where are we what are the should we be manageable standards we used to determine short of the case and both of those had to do with district court discovery orders relating to how to take a deposition and the lines were drawn and floodgates weren't open in the track cases certainly not overwhelm this court's docket and in the ordinary course if a petition for writ is following there's nothing there doesn't even call for a response and business is in a fairly short fairly short order and again i mean i think what we have here  while in the usual case you may have you know minds that are changing what will we have to do what the states are faced with and what our regulators that's the end of these uncontested declarations is that we're your argument that that's just a sham that they've made up their mind they're not interested in the cause that the comment period is is just a complete sham that that must be your argument on this particular issue we do not think that the the mind is actually open we think their mind is made up contra disputes i don't see a limit on it well i think the limit is they can speak in terms of proposals i mean the way they were able to do it here fighting comment after the legal memory and then in the preamble that said that's not good enough for you well not here i mean what they had was the conclusions versus the proposals and then while they did invite comment generally you know the distinction was confirmed by the statements of the minister made both at the time that it was  d and i grant you the state and city administrator do not hold the government's argument at all i grant you that i think i see this differently from my colleagues i see a closed mind as far as the legal issue unless you line up every environmental lawyer in this country to make comments about this is legal it's not legal they've already stated their position on the legality of it and that's not going to change with comments i mean the only thing that's going to change it is a quarry telling them no you're wrong on the law that's right your honor can i ask you about seventy six zero seven he of course that's the provision that says no other judicial between eighteen months and four you four years for them to prepare if this thing goes through that's an extraordinary type of cost right now that's right you are that's a very good declaration that such support for the harms decisions i need to be made by industry and by the utilities as as mr conrad points out in that declaration and they not only have to make decisions about what they're doing going forward because of contracts and things of that nature they also have to plan in advance as much as seven years when they're going to have shutdowns and if if they don't start taking that into account now they'll have one plant shutdowns and they have all kinds of other there's a whole regulatory morass with  their requirement to be able to provide energy but he will be on the right we think there are there are the other two vehicles petition for review which turns out a lot of what we talked about already as far as the statements in the preamble  time when the settlement agreement was finalized and finally announced noticed in the federal register april two thousand and twelve it was not right at that time and i think maybe one way to think about it is if you had say two parties that entered into a contract to do something and congress passed a law that or even the last of all that made the object of the contract illegal with a challenge be right at that time or with a challenge be right when one of the parties attempted to do mind at the time yes and now i think in june of twenty fourteen what we have is not only have they gone ahead but they have gone ahead in spectacular fashion by making very clear both in the preamble itself and in repeated difference in the timing what happened in the defenders of wildlife case the challenge was brought at the time that the consent decree was being entered into and who by the court the only question there was whether the consent decree itself could cause  harm sufficient for standing what we have he's not a an issue of the challenge actually directly causing harm but something more like the tozzi case that we discussed where it's an indirect harm by the challenge agency action as this court the petitioners side of this case any of that know they are not all right so where is the standing let's say for west virginia to challenge the son of the agreement that is not  quell some of the cases that they decided from the seventh circuit they talk about how the general weight is not standing for a third party till someone agreement but what we have here is a situation where you know we are harmed by something that has happened as a result of a settlement agreement and we are in fact the object of the settlement agreement which is to promulgate this regulation that is directly about the states and so i think we're dealing with a very different situation but judge henderson i'm and i see my time has expired go ahead but i think it's your loss original you made is important which is no they're not on on the petitioner side but the states are here who are parties and they're on the other side and they clearly think that that settlement agreement is imposing binding can regulate power plants under section one eleven when they were already regulated under section one twelve congress answered this question and said no  valid ok or but it but the decision that was made by the office charged with the responsibility of correcting the types of scrivener's error that we've see in this case all looking at referencing now the provisions as stated in the in the statutes at large you know the house again it's not the ultimate version that was passed the said you can't regulate that we're dealing with a conflict conflicting statute right shouldn't we be looking to case law that tells us what to do with conflicting statute rather than case law that talks about a but if if you look at the way in which the two provisions operate you could give effect to either one and you would end up with the same result and arguably some well for example would you go oh no because it depends if you first give effect to three o two a then you simply change shifted to one one twelve wait g a that would eliminate one twelve b one day and then as the count a large vision council concluded properly concluded there's nothing for three zero to a to a man in fact interestingly the national everyone at home is following that right  scribblers amendments that were obviously in error in fact interestingly but here's the here's the problem if if we don't think it was a scrivener's here if we think it's a a conflict right we've got two conflicting statutes if we disagree with here with your reading of well there is no to my knowledge no place was dealing with deference to that office but this was the office set up to resolve this type of of of error in the type of  interestingly is own brief footnote twenty three of their page forty eight where they went through and dismiss the various examples similar examples of how the office or vision council does its job properly obviously in error and it was a very similar situation in which we had one bill two women once the first amendment deleted the text in the second altered the text and in that case and again off office of war vision council to do what they did in this case and in fact it's it's similar to the bank of oregon case where you had you know case that quote a literal reading of the statute would mean that the e p a could not regulate any or pollute from a source category regulated under section one twelve knowledge again the plain reading of the statu and one of the key points in this case is that  existing sources as opposed to new sources when you have a new source you can evaluate multiple requirements fold that into the economic decision the investment decision particularly  congress say and we believe congress was clear on this statute and that for example continue to cover sources not covered by section one twelve new d and attempted to create an entire scheme where congress we believe very directly in the statute simply said they could not go whatever you may think of the ultimate policy choice on this regulatory scheme you simply the agencies simply shouldn't be able to take a clear stache toward prohibition and create a entire new scheme on a provision that simply wasn't designed to do  that there should be a choice by congress we've already dealing with the complexities of dealing with carbon under the clean air act and again whatever you think of the policy choices this that it would in any other briefing it's never taken that position we don't know what the supreme court will do the supreme court's decision is is dealing with important but relatively narrow issue of whether costs should be taken into account in deciding whether regulation under section one twelve is quote appropriate and necessary e p a has clearly said that if it does that they no matter what happens the case they will proceed under this rule to evaluate costs and do the regulations and in the meantime the industry is suffering a tremendous harm because a decision as to whether it continue or shut down in the additional imposition of the uncertainty of this regulation of pay of having yet another item if it's a bit like the sort of which doesn't have to be dropped to have a deterrent effect as you look at what these utilities have to do in their efforts to comply in the long term planning  just it's having a dramatic adverse effect on the on the utilities and in particular my client the ruling will be completed in june is their right that's that is certainly what the that we don't necessarily know about but what we do know is that we have an agency that is promising its actions on a view of the law which is not about to change they keep coming up with different rationales for reading one eleven in this way that it hadn't been read for that reason we'll know within two months what their final deal is right i mean that the purpose of notice and come that is its commandeering but we may never know because every state may ultimately decide that you can't afford the risk we can't can you give us a rule by which we would decide that a ch proposed rule is ripe i'm afraid i can't give you a bright line test i do think that if you look more broadly outside the rule making context you'll find a number of cases in which the somebody had been indicted but not even tried yet but what was hanging over his head was a provision that said if you want to take the death penalty off the table there's one way to do it plead guilty don't go for a jury now the waiver of a constitutional right that was a question that the court had basically decided by his or in one thousand nine hundred fifty eight and as recently as agency for international development in two thousand and thirteen the principle was if you were threatening whether an individual or a state with something that that individual or state has a right to resist like commandeering by the government and what you're doing is dangling a carrot saying we'll take that threat away if you know that the carrot is we will not impose a certain burden on you a tax or a regulation  constitutional issues this ongoing process by e p a deviates both vertically and horizontally from the separation and the vision of powers and i want to talk specifically about this idea of doing amendments this is not a chevron case they are really asserting the right to take something that was deliberately reseated to by the senate now explain that in a moment and say well we're going to as it has been codified in the us code for twenty five years or instead to catch something that couldn't even be executed only talk about that for a moment before getting to the vertical violation of structure which involves common during which the states cannot avoid unless they say well bring it on with your regulations the can't afford to gamble on on that so what's that was the whole shift in one community source categories that e p a already broke are already regulates under one twelfth and what they want to do is replace that with what was explicitly called even  conforming amendment conforming amendment traces to a vote in the senate in april of nineteen nineteen and what that vote did was to update cross reference by exemption that would be completely contrary to what the statute ordinary meaning is it seems to me because they read it as read on ramps rather than three obstacles they try to create  but think of it is chaperoned really about the power of an executive agency to say well there's this law of this but on the books for a while and it actually our argument would be miscellaneous provisions so you think you would make a constitutional difference if they were in separate said the conflicting provisional center said she says post the same book depends whether it is an operative section of the statute or not that is it's not unusual to have an appendix  says here are some things that were written down in this vast law that for some reason or another are mistaken you can't do them they can't be executed they ask for something impossible if you would set them aside to that then it is cities it is shepherd right after c i wouldn't i would try to look at that decision and read it more narrowly right in order to avoid accusing the supreme court of not knowing how to read the constitution because it should mean this is a perfect example of not the power to set standards but the power to choose between live and i would agree even with that if i were of the view that there were conflicting provisions i would agree with your your argument there but i don't i don't think they've given us the room to do that so we'll i substantive amendment it was said by this court to be something that could be disregarded even talk about finding an elephant in a mouse hole this mouse hole is a moose non executable in an operative mouse hole that nobody for a quarter century has thought could absolutely erase what congress was obviously trying to do with nine hundred ninety oath both amendments were signs of such and such right and and this was an amendment simply functionary who was performing a task that a well programmed computer would have performed that is if any provision makes reference to a non existent part of the statute do not include it that would be it were a law would really turn the entire constitutional system in a way that i think this court should make clear whatever relief it does or doesn't grant i think in terms of of disregarding provisions that are in operable and happened for that reason haven't been included in the u s code this would not be a unique case if you were talking about i'm worried about floodgates there are dozens of occasions where despite the possibility of disregard them and that's happened dozens of times i hesitate to think how much of our jurisprudence would be offended if we work to say well because this could have been fixed more directly by an exercise of legislative power we have have to live with the with the absurdity of proving as law something that simply cannot be executed there is i think in addition a serious problem  rule of law and separation of powers even if you set aside that novel attempt to rewrite the law altogether by applying share her on the context where i think it doesn't apply and that is even if you last june it's never been used to regulate or to order the states to regulate any source category that is already being regulated directly by the e p a under one twelve and in fact congresses policy judgment that allow anybody to make the first decision on all issues that arise in notice and comment will making including questions of statutory authority is a better alternative for the court the agency and the public because section seventy six of seven provides an adequate and exclusive remedy for protection to challenge to be a statutory authority in the form of seeking review of a final promulgated regulation they are not entitled to the unprecedented relief of using a action a claim that it lacks statutory authority is so different from all others that the court should review it immediately that any person interested person objects to a proposed rule on background other claims must await a second round of review after repeated probably gets a regulation but the text of seventy six us seven and specifically seventy six us seventy nine makes no distinction between lack of statutory authority and all the other listed grounds for reversing e p a action including that such action violates the constitution the act requires review of have an interest in that subject matter all of their views takes those under consideration the statute requires the agency to respond to all the significant comments and that ensures that when the court finally what they're going to issue then it's got the full context what are we to do with statements that suggests that there will be no change that this is the decisions we made rule procedures and proposed in the face of this notice and commentary just how was it to make of that i would suggest that those circumstances are no different than those in the case where the consent decree require the agency to set a deadline to conduct a rule making and the agency had already been quoted as saying it intended to update the regulations those who wanted to intervene thought that those regulations would be more stringent and more costly to them and that the were injured and the court held that there was no article three injuries and stemming from the conduct of the rule making process if the final did we have statements in perceptive that were like be administrative statements here i don't know if they were word for word the same but i know that they claimants there statements the administrators made as conclusive of the fact that we'll she's going to adopt ultimately a new rule that it's going to be more stringent and the court did not regard that as creating and immediately article three or case that was right at that time the court suggestion things may change and yet we have these statements that are being made by the administrator that suggest well it doesn't look like anything's going to change better get ready well if you do understand my concerns right i think that's an over really not her statement she herself has said i'm confident we will move about is the content of the proposed rule alternately in conjunction with the assertion of legal authority we don't know though what a final rule would look like we don't know what impact it would have on any of the stakeholders we don't know what the legal construction why why he she told w he told states get ready it's coming it's no different than any other program the entire statute ultimately is based on rules that the agency does but that are largely implemented by states there is a constant cooperation and communication a agency moves forward with various rule making it commonly sets a schedule and says well we expect the final action would occur by this date or by the summer by the winter but none of those circumstances has a court ever said well we're going to treat that as outcome determinative and simply adopt  arises a review of the final decision addressing all the issues and it ensures therefore that the court reviews those questions at a time when it has the context in which to consider them we've seen examples in recent cases before this court such as coalition for respons that i would sign all she has said is that i'm confident we will move forward but she still has to prepare her final the mouse and her answer to senator wicker who asked her section eleven d says if it's regulated under one twelve you can't regulate it her answer was i think the framing of the legal argument is incorrect senator i don't she's not a lawyer i guess she's out of our i don't know but well i think i think again that is still not the articulation of her final legal rationale and i guess i would also point out this is not a case this is a case dealing with a charge that the supreme court has recognized congress clearly has to decide whether and how to regulate greenhouse gases so the question of whether you may do so under this particular section of the statute in the end is still a question that should be left to the administrative resolve in the first instance in the course of the rule making there's nothing about that question that makes it different from all others and requires that if you are viewed differently than how congress designed claim that it's improperly applying its authority they're all one of the same is in the end it's always a question of whether the agency has gone beyond what congress permitted it to do but under seventy six of seven those claims are always heard after the agency takes a final making actions let me ask you eleven which is where we are and then a bunch of other standards and controls and prohibitions and determinations and then it says or any other nationally applicable regulations problem gated or final action taken by the administrator and then you look down at the second sentence which is the one controlling the state implementation plan and that does say or any other final action it seems if not  it seems as if the first sentence and beginning by saying that teaching for a view of action in promulgating no final there and in promulgating at least to me  indicates in the process of problem dating it and and the definition of promulgating actually has to one that would support the titian is to make known her public the terms of no action the way the second sentence does which to me indicates that unless it's a square there is a or they left out other for some reason in the first one i am reading it petition for review of after sixty days of the notice in the federal register now you first say in your brief on page sixteen that none of the inner being yours can stand in our issues because they did not file within sixty days after the publication on june eighteenth of last year then page twenty two you say this is the argument mary makes about the  finality where such a president establishments that disagree with each ph legal interpretations in any future proposed rule likely would be forced to see it in sixty days of publication of the proposal otherwise it be done timely now on the one i'm saying to intervene out of time filed after sixty days on the one hand on the other hand you say they can't be forced to file within the sixty days i think there's a couple of different issues here let me try to address all of them if we're talking about article three rightness this court has already held in the coalition for responsible regulation case that it was the publication of a final not merely a proposal challenge again we would say that they have not shown that first of all their their it would clearly enlarge the court's jurisdiction second they have not shown that the remedy afforded to them and explicitly reported to them by congress in seventy six or seven is an adequate proven adequate for all sorts of rules that were also of great economic and environmental significance and that also involve volved claims that the agency was acting on law did not show why it is somehow uniquely inadequate here cases they cited like mcculloch and exception to the finality doctrine merely because the claim was that the agency exceeded its statutory authority in that case it assumed authority over pending proceedings in a state agency in texas and the court said that that was not final yet and it would be after the conclusion of good morning your honor i'd like to make just a couple of points in response to what petitioners have said but before i turn to those i think there's one rushnell issue that merits some discussion and that is the limited nature of the question that's before the court today the regulate power plant carbon dioxide emissions but why it has thore and you're honest i think that if there is even a scintilla of a shred of potential ambiguity in section seventy four eleven d e p a has to be given that cha shouldn't be looking at the senate version as a source of law at all so that's not a matter of ambiguity that's a matter of understanding how a bill becomes a law right so what's your response to well my response is past everybody has always agreed that the statute was in big us because of this senate amendment that was petitioners agree with that in two thousand and five ten years ago and i have a hard time seeing how there is no potential for ambiguity now when ten years ago everybody thought this was as this court has said is the preferred course in the sponsor county case and most recently in shia la beouf you know even setting aside the sharper on application issue i think almost every opinion contain the idea that well before we decide there's a conflict we should try to reconcile the statutory language if possible if you should be given that chance here now second you're honest even if we're talking about the text of seventy as amended by the house only i think there's a lot of reasons why a reading that would bar e p a from regulating non hazardous pollutants under seventy four levante simply because hazardous pollutants have our own from that first category are regulated under seventy four twelve there's a lot of reasons why that might not be a reasonable reading let alone problem i don't think that statement really is a problem your honor let me tell you why there's a couple of reasons first nobody brief this issue in a d there's no indication that the court was aware that we had two different amendments to the code language now beyond that though the main thrust of the a p decision was that seventy four eleven indeed not state law is the appropriate mechanism for late regulating carbon dioxide emissions from existing power plants and the court said that the statutes language and the reason the court gave was that this is not unlike i think somebody on the other side incorrectly said something that was signed onto by the congress this is not a conference statement it's a statement of the senate managers only because they weren't happy with what was in the conference statement but more importantly that statement is this it's brought in bland statement that the senate proceeds the house in regards to the content of section one away which contains a lot of stuff a lot of it about transportation provisions so even if we assume that you know the fees value that just means that the senate doesn't disagree with this stuff being in the bill but that statement says nothing about the separate section three o two and if i thought that section is a cover of at all in the senate manager statement so we can assume gated under both sections would continue to apply to the same sorts and finally i think the reading is also in tension with the legislative history that contains absolutely no evidence that congress intended to restrict the scope of sections have before eleven in the dramatic way that they are saying it did in fact the congressional research service itself in one nine hundred ninety three just three years after the amendments characterized the two differing amendments as duplicative language that was trying to do the same thing now sisters have a theory about why congress would want to do what they think it was doing even though it never said anything about it and this is their double regulation theory but first this is rigid revisit provision it's history sorry there's nothing on which is apply because you know cutting back to almost nothing the scope of seventy four eleven d would be quite an elephant and what we do have consistent throughout the legislative has starting to melt either way but what we do have and by the way we're trying to eviscerate the seventy four eleven deprogram at the same time even though we're not saying that so i again i just think the legislative history leans heavily towards a reading of seventy for a lengthy that doesn't completely undo it internal conflict between two phrases in the same provision because that's what was that issue and she a lot of it was actually pretty analogous i think i'm not quite on point but they were talking about the language within the same provision but the point janice faced in opposite directions and we had five justices who think sharyn still applies that so i think that is clearly still the law of the land in regard to that issue but even if one disagrees with that as for example the chief justice did what member of the ju articulated is this idea that we should try to reconcile apparently conflicting language before we decide that there's a real conflict and i think you know that's what do you ph should be allowed to do to see if it can reconcile that language that one now agree with us and you won't have to do chevron two i really don't think there's any case out there that's just that's appropriate and in fact we've got case or like the energy case where the courts basically said you know we don't necessarily have to do both sets fully you know if the agency interpretation is reasonable we're not going to go through sept one and if congress has spoken directly and it's as clear as they think it is then any agency contradicting it in terms that contradicts what congress has said would be unreasonable not support the proposition that courts should prohibit agencies from completing and ministre to rule making process because the product the thing may do with the end might depending on what's what's in it raise it constituted taxes is it isn't the notion behind it that you wait as long as possible to let the dust settle so you know what you're citing right i think that's correct your honor and i think if the final running backs are saying that the transportation that yeah and i think we just we we can't have a meaningful discussion about these issues until we have a final you have so you know and i would again reiterate that these were raised by petitioners in their briefs and then at the end as a result they haven't been briefed your honor i mean or something like that but it will be this summer it is thinking and that also brings up an interesting issue of the interplay with the magical decision which will be in june so why this time we have a final roll in position challenging it will know what was happening claims are premature and there is nothing truly exceptional about their claims that warrants unprecedented relief that they seek an finale patisseries statutory authority claims are not unique petitioners challenges are not different from many cases th before allowed a party to stop a rule making midstream and they have not identified any standards to separate this case from those or that would prevent others from seeking to file similar premature claims to none final non binding regulations that the legal interpretations underlying its proposed rule and under petitioners theory anybody who disagreed with those legal interpretations could by a hell of a premature challenge that petitioners are challenging the agency's l reviewed under the chevron framework with the benefit of the agency's definitive reconstruction and their final reasoning after considering all comments and promulgating a final rule of hardship also are not a basis to distinguish the case the testers allegations come from voluntary not mandated actions when a rule is proposed it cannot as a matter of law legally obligate anyone to do anything states cannot make their claims right through their own voluntary actions and it is common for states to spend resources analyzing a proposed rule perry comments on that rule and to begin to prepare to comply with any requirements they may have to meet once the rule is final if participation in the mystery of rule making process in advance planning or basis for being able to bring a challenge to a proposed rule those challenges would be brought over time as a practical matter states are not forced to act  implementation periods and specifically build on energy and environmental planning efforts that states and utilities are already undertaking this court should not depart from that standard practice here finally with regard to the west virginia petitioners they cannot avoid that these finality and rightness problems by challenging the settlement agreement for two reasons first they are not harmed by the of the agreement promulgating any final standards it didn't commit to anything substantive and it did not take away any procedural rights merely agree to take some final action and the e p a still has discretion as to what that final seventy seven the clean air act as mr link pointed out section seventy six or seven d nine expressly makes clear that claims that an agency has violated the constitution or as acting in excess of its statutory jurisdiction or authority are among those claims that a court can consider on proper review of a final rule there's nothing that would allow there is no exception as the court now those claims that an agency has exceeded its authority or even violated the constitution are routine and the idea that there can be this two step review process would completely flout congress in time and would bring this court into contact with an entire new entirely new procedure out of a minimum the court would get myriad protective petitions for review because if part of the agency's decision on authority or anything else is deemed to be final at the proposed rule stage then people have to challenge it and they no doubt would know notably here many many parties that really don't like this rule of the state of texas and notably aggressively going against the government's proposals to regulate carbon having haven't participated didn't file it's not just the ultimate conclusion whether the agency has authority or not for example it's been assumed the petitioners arguments assume that the whole question is the sound of the man and how do you treat it and as it is berman demonstrated that alone is certainly reason to let bill agency at least and it's views because the court will need that to address that difficult statutory question whether or not you ultimately conclude that it's something that should be treated under chevron or something else it's totally extraordinary to not let the agency decide first they admitted they have no case and there is none but we think the premise that everything depends on the senate and i'm it is wrong we think the house amendment clearly in the in the with respect to the pollutants  issue here which are those that are not and cannot be regulated under section one twelve it we think that it's best read not to preclude the agency from regulating those under either program that would be very notion of pollutants regulated under one twelve and source is regulated under one twelve it can read the levy limited to clues as to those pollutants to them to the exclusion being limited to the pollutants that are actually regulation of non hazardous air pollutants the rationales have been the different maybe the issues haven't been squarely presented but now they are but the idea that this is some kind of bizarre departure is completely wrong so we think if ever there were a case to a clear statutory structure this is not it there's clearly a very strong basis the supreme court noted mention one eleven d seven times and then pinion and industry there was saying this is the provision this is the way you deal with carbon under the clean air act it's a flexible provision it allows for the kinds of regulatory tools that make sense with respect to carbon and so the idea that all of a sudden these ph is prohibited from doing so is remarkable and the agencies should be allowed to conduct a room make and explore it and research final decision many of the petitioners here supported as reasonable e p a as construction and the clean air mercury rule proceeding that again would allow a at least and some of them hundreds of common to remember there are millions of comments that the agency is considering now which goes to when they're going to be able to finish it this summer millions of comments and many of those comments including by all the petitioners file a premature lawsuit the agency responds the petitioners challenge the agencies the scotian of the statute as litigating the positions of counsel well that's because the agency hasn't finished its work yet and that's just one that and the protect is just like the last breeze us case which involved a challenge to the proposed standards under one eleven b for new sources with many of the same claims of immediate hardship the agency is completely gone beyond its authority and the about construing the judicial review provision in section seventeen i'm sorry seventy six seven b i think that it becomes very clear that promulgated rules are final rules when you read it together with seventy six or seven d six which which compares the promulgated rule with the proposed rule there are different things there is this very carefully constructed process here almost any of the party of almost all of the parties interested in this important rule making are playing by the rules and participating in that will making whether they strongly oppose it whether they strongly support it like the state of new york and others have and they will all have their opportunity to review the e p a s final decision including on these statutory questions and bring any claims of illegality to this court thank you very much i have a few points on the threshold issues but if i could first three very very brief points on the merits just there was a lot of talk about the house the moment the us code version being in the u s there are all these these readings that have been suggested now prohibitions on the on the dueling amendments issue i think one of the important things to remember is you know this is happened a lot and we have a footnote the talks with all the different revisers and it's and you know this court in the supreme court have always assumed that congress le is truly a conflict here i don't think the see a lot of case a result of this i mean there are five justices there he said that it that it could be a chevron issue but remember that chevron step one requires the application of ordinary principles of statutory interpretation references to the elephants and miles holes analogy but let me give you another colorful analogy the e p a said you know there's no legislative history here but as a supreme it said in harrison there is no dog that does not bark theory of legislative history the fact that congress did not specifically same thing doesn't mean that that's not what the such of the text doesn't mean what size on the threshold issue is let me turn first to judge henderson question about the white stylee case in the supreme court i think as as mr barnes said it's really that's really a question of credential rightness and the first and most important thing is that it's a wave of will issue as the supreme court has said we raised that very issue in a footnote in our opening brief  said here is a way there are two ways that the e p a can deal with the one twelve exclusion either delist parklands wait and see what happens after the supreme court rules if they lose on this not to release them they did not address that they have not they have thrown every threshold argument they can think of against the wall and the one that's missing is that the white selling case of any effect at all on the rightness of this issue and then as far as the t iming and you know whether this rules going to be final in two months you know that just gets to you and this and this gets to you the the sort of fundamental disconnect here about what the issue here is mean this is what's happening here is states and petitioners in the industry are being forced to do things this is not this is not simply participation in the administrative process and the declarations make that very clear this is not stuff that at least our states have been doing or would be doing states and the intervenor states what we're doing because we have to do it even the thirteen month timeframe that we have after the finalization of the rule these are not things we will be spending taxpayer dollars on you know we're not these are not the contemplated legislation the contemplated rules all things that a draft legislation that we have to submit with our initial plan thirteen months after the finalization of the rule these are not things that at least our states would be doing and that's talking about and the fact that this is centrally regulation by inertia i mean they have gone ahead and and as just wonder since i read said that they're going to do this rule and you heard it today from e p a council you know when is this rule going to be final it will be final this summer which is what she said and you know we were were mean say when it was said no but i mean ultimately and i think that's the important issue here this is not about all the various possibilities but this is an absolute prohibition that if we are right about this there is nothing more that they can do if there is no possible explanation they can gave no tweaking of the rule no paring back to the building blocks that can make this rule lawful and is a clear legal issue it's teed up i certainly doubt the court would want more briefing on this topic and under these circumstances we believe that the extraordinary  t is appropriate and what i'd like to do here is see the rest of my time to professor attributing to congress unnecessarily the intention to create a serious constitutional problem so if there were ambiguity here that avoidance principle of respecting congress trumps chevron deference and that's really well established so that if there were warring versions and i think there are and if one couldn't just obviously reconcile them by following them both because as i suggested earlier they're not inconsistent if there were residual ambiguity it still would not do them any good because as general lynn pointed out no matter what happens with the rule there is something very fundamental that they're not even remotely suggesting they're going to cure they're not suggesting they won't use one of the eleven d circumstances where the plain language of the statute says you can't use it for source categories that you're regulating under one twelfth that issue was fully teed up for review and it really would be a terrible waste for everybody for them to go on under the i have a statutory authority that they don't have the issues of state sovereignty are also fully teed up and i want to stress that i'm here representing all fourteen intervenor states period is over will be any better frankly than then these are the statutes speaks for itself it's clear that they're trying to make law not execute law and it's clear to me anyway that under the principles of the prince case the gun background check case they are commandeering the states they're commanding them to get ready and not only to get ready but to expend resources to p statutes and regulations that will meet their demands of their suggestion is unless you know what's going to be in our secret back up plan that we're going to announce sometime this summer you can't tel whether there is a violation of principle that just is not right the supreme court made very clear in prince of the opinion by justice scalia that it is a categorical structural imperative one that cannot be balanced away by countervailing considerations it didn't matter how much effort the chief local law enforcement officers had to engage in as at the sort of the end of the line of command up by the federal government that violated the basic structure of our government and a principle that they were never really tried to answer is the the fallback regulation itself is one but you don't need to see in order to assess from this perspective there is a principle as old as the one nine hundred fifty s that offers to withhold very direct federal regulation or direct state regulation but here in the federalism context it's direct federal regulation conditioned on waivers of fundamental rights like the right of a state not to be commandeered are not to be judged by some deferential standard of rationality they're subject to the most demanding scrutiny if not per se unconstitutional that principle is fully right here but if there gambit works against it that says there's an axe out there and it's going to fall and you may not like it so you better get your act in order if that gambit works and if all fifty states then waive their right not to be treated as us in the future i don't know of cases in which an agency says we're making up our mind about the details but our basic theory is that we have the right to regulate outside the statutory lines and we have the right to put states to this hobson's choice either on the one hand you accept or commandeering or we're going to bring some regulation won't tell you all that's the sales down on you all you at that point know all you need to know is say that is impermissible and the reason it's impermissible is not that those states that cave in can bend come back and say well we were coerced we haven't waved our rights that's not so clear i mean the people who decided to plead guilty under the lindbergh law twenty nine hundred thirty four and one hundred sixty eight when they tried to come back into court and they said we want our life sentences to be vacated because those guilty pleas were coerced the few states are well counsel they know what their choices are and if you think you're going to have the opportunity to fully review the fundamental issue of whether this kind of hobson's choice can be put to the states at a later stage i'm not so sure because the states that consent to go along with the e p a s plans are not going to be in the same position they are now to say wait a minute what you're doing to us is a violation of our briefs the e p a testified before congress that the compromise that was just suggested by that vote last speaker for the respondents the compromise of saying that e p a can regulate everything except the hazardous substances that are being regulated in these sources she said that would be ridiculous it would be ridiculous to have duplicative regulation even  under one twelfth you don't want to encourage it to say well we're don't want to be accountable to either the people or the congress we're going to let the states do it and use one eleven d and hold this club over them seems to me that the fundamental issues are fully teed up yes it's true that if we were saying well maybe that it depends exactly what's in these regulations whether they are two courses or not that's not what we're saying that we were you would then have to carve out a special principle for when you intervene we're not saying that and that this court has jurisdiction is clear the question is what is it right and whatever remedy you do or do not provide whatever your ultimate decree i would urge you not to create or leave in place the illusion that an agency can simply make up the rules something that you a r g reminded us it cannot do under a system of government