court my name is jumping on behalf of the environmental protection agency but the question before the court today is whether a court can compel a defendant to comply with superceded law every court this court the supreme court and other courts of is examine this question has held that the answer is no there is not one single case that we are aware of or that has been cited to this court affirming the denial of rule sixty five belief in this situation the rule a modification of the consent decree may be warranted when the statutory or decision the law has changed to make legal what the decree was designed to prevent now that the court then went on to explain why in the case of consent decree parties may have voluntarily agreed to do more than the minimum required by the statute or the constitution and that therefore in the case of the consent decree it might remain equitable to continue to require compliance with the with the injunction going forward based on that contractual consent however five years later in agassi any in a case where there was no contractual consent was not a consent decree the supreme court held that a change in the law that made illegal what the injunction had prohibited entitled the petitioners to relief and the supreme court held the same thing in a railway employees holding that that it would be an abuse of discretion to deny a california department of social services versus levitt that when the law has changed after judgment to make legal what the injunction prohibits the injunction can no longer be enforced and it is an abuse of discretion to deny relief in that circumstance c rules addresses all conceivable situations factual and legal that might arise and equitably or some circumstances that are so overwhelming that it would be an abuse of discretion to deny them now when it went to and the lack of a legal duty is one such circumstance as the supreme court has explicitly held and this court has held as well of course there are many other cases where perhaps when you're considering whether the consent of the parties you might consider the equities in that case are certainly through alleging that the decree has become much more onerous under the facts for example in rufo the court rejected the argument but the the petitioner had argued well the sheriff had argued that the jail population was so much larger than anticipated that they needed to do double selling even though they had promised that they would not there the equities are appropriate but it's not that they are the court always has discretion but as the supreme court said in eggs steenie while it is true that the trial court has discretion the exercise of discretion cannot be permitted to stand if we find that it rests upon a legal principle that can no longer be sustained and the injunction in this case rests upon a legal conclusion that e p a has a legal duty to promulgated federal plan immediately in advance of the actual deadline under the law now which is some time in tw and that legal proposition can no longer be sustained after the change in the law and therefore it is an abuse of discretion to continue to compel compliance of the superseded law if we were to disagree with you that th those cases were distinguishable because it was a rd party that effect the change in the law said that maybe e p a will keep changing the law which we think is you know unwarranted speculation that doesn't justify its failure to recognize the change in the law that actually occurred and then about the other circumstances the only circumstance that looked at is that the change in the law does not for bid e t a from publishing plant earlier than currently required by law and that exact same reasoning w relied on by the lower courts and railway employees in that case the injunction for hibbett union shops the law changed to allow the union shops but it was still legal not to have them and the lower end that was a consent decree too so the lower courts continued to enforce the injunction and the supreme court reversed simply based on the change of the law and the fact given the consent decree that the parties the record show that the parties have attempted to conform their conduct to the law i believe  but that legal duty has since been altered by a change in the law and it no longer exists and under those circumstances it is an abuse of discretion and visit discretion to deny relief ringback from the prospect of effective that judgment i the apple e's have never made the argument that this injunction is not prospect of relief of course rule sixty five only applies to the prospect of effective a judgment and they have never argued that this doesn't have prospective relief  effect and for very good reason it requires e p a in the future to promulgated a regulation establishing a regulatory plan that will require years worth of deadlines and monitoring and submissions by the regulate community its injunctions are inherently prospective in their effect there's been no argument to this board to curb a lot of the contrary the fact that it is one thing as far as the courts concerned although not one thing as far as  one thing but the court held that because the law had been changed by the top to death already the decree of the court could no longer be  enforced so the court's finding that those cases the precedence in this case wheeling bridge railway employees agnes deni levitt can be distinguished on the grounds that they were affected by rd parties this is not a valid basis for refusing to follow those precedence it may be rare circumstance that we're in here where the lawmaker is also the litigant but it's just a natural consequence of the fact that the plaintiffs sued a regulatory agency for violating the regulation the court held that it has the power to enforce that regulation but it certainly does not have the power to enjoin the age changing its own regulations it has that power and as the d c circuit held in n w a c p versus donovan nothing an order compelling an agency to comply with its regulations does not prohibit the agency unilateral act of a party and that is inconsistent the regulations do have the the force of law both of their original form and then their modified form and the court abuse discretion in failing to give effect to that change in the l plaintiffs have argued that if the district court doesn't get to decide whether the old law or the new law should be enforced in this injunction that there would be a separation of powers problem and that argument is wrong it was rejected by the this court and the supreme court it was rejected back in wheeling bridge pennsylvania made the same argument that congress can change the form of judgment of this court that would be a separation of powers and the supreme court held that if there had been a damages award congress the new statute couldn't change that but it did a change in the law by the competent authority made prospective enforcement unavailable and similarly in this port followed wheeling bridge and held the very similar change in the law to what we have here does not violate that there's no violation of the separation of powers even though the change in the law makes a judgment of the court on forcible going forward and the district court also relied on on pure speculation that e p a might modify the regulations again in a few years time and it is just it's error to rely on on speculation there is nothing to support that future change which for the reasons we've explained in our brief is not really plausible the regulatory change merely conformed the regulations to the statute as amended by congress so a future regular tour of change is very very speculative here but if it were to occur d it would be judicially reviewable just as the current regulatory d changes are being reviewed by the d c circuit  guess the one question i have so are you saying that that u p a is harmed to by having to comply with the law even though you could do it anyway because they because the district court held that you could complete the plan within the timeframe anyway those regulations the it is valid they've gone through notice and comment process it took the better part of the year that started long before the judgement in this case and the court was well aware of it and it changes regulations it is entitle to do that it was not and cannot be enjoined from doing that and now that the law has changed the universal rule that there is no case to refute is that a change in the law of this nature makes it in  serve its final on appeal judgment and then my kindness from the representing the state of california will spend the last fifteen minutes discussing why the district court discretionary decision under the unique circumstances of this case with not in abus required to disturb its final an appeal judgment regardless of any other circumstances so the question on the you know isn't whether that just part could brantley be to really and we've never argued against that it's not even whether the district court should bring under these circumstances then the narrow question presented here is whether the district court haven't already consider those circumstances at all and let me give you three reasons why it did and why prospectively is no longer equitable and is justice scalia explained in the spencer will sixteen b doesn't impose a mandate to reopen but merely reflects and confirms the court's own inherent and discretionary power to s meaningful in forcible and you have a new law and in that situation rule sixty five dollars places it is the decision of which of those two should control squarely within the discretion of the district court disputed when it has to do that is just a parochial interest of the agency and not not not the same kind of interest as in many of the other cases where you have rational shared railway employee he judgment that did not appeal that judgment did not say that this court and it conceded liability it didn't say to this court we can't meet that deadline that the district court did it circumvented the courts and put into a rule making same we need more time because it might be time consuming it might be complex when they were literally two days away from being able to complete this duty and you know one other circumstance i'd like to really highlight that your honor brought up here is that this injunction is very different from virtue from basically every case that the source of the power to modify as railway employees said is is that there is continuing supervision by the courts and here this is not a profile act it preventative injunction this remedy is one long cast violation years ago violation it is not directed as the swift court district court could not order e p a to comply two years prior that was physically impossible so it did the next best thing and it ordered a date date future deadline at the earliest date that it found feasible i think that's almost more in the nature of  to modify or an injunction even though the underlying law has been change remotely like this case where the injunction is not prophylactic it is not aimed at future events the district here was not reported what about wheeling bridgeton and didn't the court in wheeling bridge say that a bridge had to be destroyed in the zero on and really bridge is a is a very different circumstance and here because there was a direct conflict federal court injunction said you have to take down that bridge and you cannot rebuild it and then the new statute  and i think you know i think levitt fits that too you can't have two different formulas for bach or care eligibility you have one or the other that there was a direct conflict there and similarly with  turning back just briefly to to the question of about the d c circuit i want to point out two things one is that you know places were in the d c circuit many years ago when e p a put a stay on this  certain deadline so it's not out there that we could get the relief there that we can get here that might just vacate the delay rule and e p a as it argued in that initial state case would probably say you have to go back to the district court if you want an injunction here so we believe for all the reasons that we argued and i stated that this court should affirm the district court but if it doesn't we would ask this court to remain and with instructions to be district court to stay the injunction pending the outcome of the d c circuit litigation and i also just stay on that what's important here is not that there be a template for this case that the district court applied the crap standard and  the nature of the injunction at issue here and i want to reiterate that e p a can perfectly well comply with both of the law is an issue in this case it can comply with the court's order and can comply with its you regulation which require the one that the district court relied on saying well there's no conflict the agency coolidge do this even though the law on the longer requires it to do so and i would just repeat that the supreme court rejected that reasoning and railway employees the lower court had relied on precisely that reason it was perfectly legal to not have a union shop and yet the court held that it was an abuse of discretion to compel the union not to have a union shop when the law did not require that similarly in agnes steenie which came after roof and is consistent with roof fell but in that case the school district certainly could have continued to provide services to the proteus school children in other locations as they were compelled to do under the injunction but when the underlying decision a law no longer required that the court held that they were entitled to really from the judgment that the injunction compelling them to do so i also heard them say that this injunction doesn't require ongoing continuous supervision that it's not an institutional reform decree of two responses to that st of all as they pointed out in bellevue manor this court held that there is no difference between  more generally available than it had been under swift is not limited to the institutional reform degree context moreover in rufo the supreme court discussed intuition institutional reform the litigation d and described it as   we suggested it twice in the district court your honor the plaintiffs said that it was unacceptable to them and the district court did not do it but now that certainly you know of the regulations have changed they have not moved to say the fact in their briefing they have to address is this argument that we have two sources of law the regulation and the judgment that's essentially a circular argument the judgment rested on the old regulation now that that regulation is no more if there is no legal duty to support the judgment the argument that they're making that the court gets to make a choice between this judgment which in force is a nonexistent legal duty and the regulation is is a circular argument and is not continued compliance with the injunction when the law has changed to make permissible with the injunction prohibits in this d case not promulgating a federal plan until the until the deadline under current law and therefore the district court abused its discretion by