the fuel standard is unconstitutional for two reasons first it adopts a life cycle analysis that imposes restrictions on the import of transportation fuels in an effort to control commerce occurring outside of california that restriction is an impermissible extraterritorial regulation that violates both the commerce clause and the federal structure of the constitution second the fuel standards design and structure discriminate in favor of in state interests at the expense without a sta argue in your preset rocky mountain decided only your commerce caused hands and did not consider any structural federalism claims aside from the commerce c prior rocky mountain decision controls all except for structural federalism argument and it is a structural argument it's based upon the structure of the constitution reflected in cases like him w versus gore in which the supreme court has  that one state can't regulate it outside of its borders it has to regulate within its borders so in b m w versus gore alabama could impose a penalty on the out of state conduct that was legal out of state in order to increase the punitive damages award for say for a plaintiff was in alabama when who was subject to conduct that was illegal in alabama so part of it would be under the due process clause but inherently it's a structural argument at the ideas that state can't intend to regulate outside of its borders and regulate conduct that's in another state now just a made perhaps to short circuit and on this question we submitted a motion  rejected our argument with regard to the structure of the constitution so in our in our prior filing we have knowledge that that's controlling on this panel and we you know we think it's wrong and we're going to preserve it for further review but that's why we're preserving  the rocky mountain case for issues that you raise relating to it and what it is held and those timely yeah the oregon fuel standard kay says cheers structural argument so so you think we have to a farm and you take your chances on and bake rehearing on the supreme court that's right your honor we don't we don't think that the o'keefe decision is distinguishable in fact the oregon you know the oregon program was modeled after the california program with regard to extraterritoriality they're both applying a life cycle analysis that life cycle analysis is looking at conduct that is outside of each of those jurisdictions outside of oregon outside of california we think that's extraterritorial but that according rocky mountain disagreed with us and the court he thought that was under the commerce clause you know keith the court has disagree with us with regard to the structure of the constitution let me ask you if i can answer questions regarding mootness eleventh amendment and association is standing because i have some some questions regarding that  if the court were to to rule in your favor that the two thousand and seven two thousand and twelve carbon fuel standard were unconstitutional what kind of relief would your clients be awarded  declaration of their own constitutional and secondly an injunction prove precluding the unconstitutional enforcement of them now this court in rocky mountain decided the question about whether the fact that the l c f s had been amended care with regard to regulated parties it's those regulated parties they're carrying forward credits from the prior versions so if you're in forcing the l c s now we're not seeking retrospective or we're receiving prospect really so it would be an order in joining in force one of the s based upon const you know unconstitutional allocation of credits seems that that hinges on these credits moving forward is that right ok yes you're so but if card doesn't have the credits  are record of all the credit allocations over the time how can it recalculate credits without the participation of the individual members i'm trying to reconcile that well we we are not unconstitutional allocation of those credits against the members i'm trying to figure out how the this way that works exactly because as you know the district court as you know states specifically and he did term it in terms of individual participations of the of the of the plaintiff members organizations and so i'm trying to figure out are you just saying ok don't pay attention to what the district court said on don't you mean an individual member an individual member yes but but the relieve the worst you know we brought this on behalf of we brought this under you know under association standing on behalf of our members we're not seeking individual recalculations on behalf of the my but i don't know how that works though if if it's the chris i mean are the credits and i'm going to ask your colleague across the aisle this are they like the equivalent of money like is that now or what is that because that's like supposed to be so the one on e then there's a might be an eleventh amendment problem so that the the way that the way the system works is if you if you're a critic if your carbon in the your average carbon intensity for a period is below the baseline or is a below the target and you generate credits and it's above the baseline you generate deficits so to the extent that you have been you generate credits some credits or perhaps you could of course you could have accumulated additional credits under a different system those credits carry forward and there are they are there is something you can do a number of things with you can trade them with another party or you can use them in the future to to get rid of deficits that come up in the future and so what we're really asking is essentially what the court decided in rocky mountain in footnote twelve which was look because those credits have an ongoing effect on your your ability to on the whether or not someone is in compliance then there's an ongoing there's a prospective relief that can be granted and essentially what we would would ask for and it's go eleven and twelve for zones they had been amended but they were still existing and so the relief on shifting credits  recalculating on was not then mooch but subsequent to that time they've been totally repealed by california is my understanding so i don't really understand they still apply it's not like there isn't there wasn't some short demarkation sorry or no i'm sorry i did was interrupting anyway i have a poem with that argument because amended to me whether they call it a repeal or they call it amendment i mean it's odd for a state to have it on what we consider to be an unconstitutional system and then they just they they say ok well we're going to repeal it but we're going to and that essentially the same system and you don't need to look at whether the prior provisions were it were unconstitutional or not or that we can move those especially when those prior provisions and the credits that were generated on those prior provisions they continue to apply today and that's what we're no twelve where the court acknowledged that under the system that the credits that were generated previously have an ongoing impact i don't think that's true whether they call it a repeal or an amendment and in substance it's the same a really you're saying you do not want to recalculation you're admitting here that you don't want to recalculation we're not asking for recalculation we we did you know that would have to go on an individual by individual basis and that's not we're asking for what we don't want  of issue and that's what this court said previously rocky mountain so and so what you do want this is just a clear tori and injunctive relief here yes your honor if you're in that's right and so the effect of that would be just stop what's happening now i mean well they would have to they would have to figure out a way that they they can remedy the violation so they would be enjoined until they could until they could fix the violation and what does that just to be clear what do you mean when you say remedy the violation of what is that your invasion would depend on the violation if it were for haps if there were discrimination based upon if the court were to conclude that there were facial discrimination based upon the the distance that fuels have to travel so that component would have to be excised going forward and so that would be the relief and that would have an impact on on compliance under the current provision and that likewise if if there were a limitation with regard if law which can be prospectively enjoined under the ex parte young exception to sovereign immunity in the eleventh amendment and ongoing effects of past alleged constitutional or federal law violations you can see this very starkly i think in the supreme court's decision in elman where the plaintiffs allege that they had been unconstitutionally deprived of public assistance benefits and the court decided that it could prospectively require the state to comply with federal law in issuing those benefits going forward but that there was no retrospective relief available because of sovereign immunity as to the past benefits that had been unconstitutionally denied to those pla those are clearly ongoing affects of alleged violations of law those low income plaintiffs clearly felt those effects very severely here expects that plaintiffs are claiming as to their credit balances are essentially equivalent to the bank balances for the plaintiffs and elman which would also have been lower as a result of the alleged past violation so the eleventh amendment allows prospective injunction to stop ongoing violation of federal law it doesn't require and it can't require the government of the state to compensate for past violations that was true in adelman and it's true here as well and i will note that it is not an ongoing violation of federal law for the state to continue implementing a program even if part of the basis of that program involves these allegations of past violations and you can see that in this court's case students for a conservative america of the greenwood which is three seventy eight a third eleven twenty nine and that involved student elections at the university of california at santa cruz in which the students alleged that the state university had applied unconstitutional rules to the student election and this court held that requiring the state to run a new election was barred by the eleventh amendment as retrospective relief that means that th the university was administering its programs consistent with those allegedly unconstitutional actions in other words it was treating whoever was elected as the student president as though they were the student president and that is what california is continuing to do with its credit balances it is treating those credit balances that were earned under the rules of the program at the time so talk to me about it in terms of in a footnote twelve of our prior opinion them because we found there was a lot of controversy still because the credits from the past c f s schemes were ongoing and so are they ongoing those credits still ongoing even now they could be your honor as  plaintiff's counsel mentioned the credits and deficits did kick do carry forward between the different provisions of the regulation and so if they do how is this it's moot because those are like the like the bank balances that were lower than they should have been in the edelman case those are ongoing effects not ongoing violations of the constitution they there are allegations about what california did to violate the constitution have to do with how california's program affected the market between twenty eleven and two thousand and fifteen when the repeal provisions were in effect so they each individual would then have to bring a claim claiming that's ongoing and they cannot bring it as a group that's yes that's correct there's also an association of standing problem that to go back and compensate members for you know sales that they made where they paid more for something because of the l c s us would require individualized proof we don't have price information we don't know how much they paid or why that's different than what they would have paid if the l c of us had not been in effect so there definitely is an association of standing issues and that also wasn't considered in the rocky mountain footnote neither was the eleventh amendment so yes counsel would you would you see i mean recalculation of credits for the two thousand and eleven and twelve years would be red cross but of relief yes i would your honor because the because it would be designed to compensate for alleged affects of the federal violation not for not to stop the violation itself and as the supreme court said in green v mansoor the difference between perspective and retrospective relief is that person active injunctions give a life to the supremacy clause by by a law in federal courts to enjoin violations ongoing violations of federal law and that those interests in giving life to the supremacy clause can trump sovereign immunity but compensatory and deterrence interests cannot trump sovereign immunity so any attempt to address credits or deficits that might have otherwise might be different if the rules of the market had been different is a compensatory remedy and barred by the eleventh amendment and as i mentioned earlier the students for conservative america v greenwood case demonstrates that the eleventh amendment does not only bar remedies that seek funds from the state i think that's those are often the case is often a rise in that context and this  compensatory and retrospective remedies because in that case this court held there was a a prospect of remedy available because the violation was capable of replication but abating review in other words the  relief going forward would prevent future violations of federal law and it was not designed to compensate for support for elections that had maybe gone differently than they should have in the past and so notions of federalism or their notions of extraterritorial regulation the supreme court held in that case that state courts in alabama could not impose punitive damages based on conduct that occurred entirely outside the state of alabama but the state could impose liability for sales that occurred in alabama where repairs were not disclosed as they should have been but those repairs occurred in other states right so it isn't the case that just because some part of the conduct was lawful in another state it removes the state's jurisdiction entirely so b m w v gore is entirely consistent with the supreme many of the questions that are presented here yes this panel is bound by o'keefe and o'keefe did resolve the structural federalism question because it is identical i also want to mention and we pointed to some of the pages in our brief in our response to plaintiff's motion to dispense with oral argument that there have been some changes in the regulation as we've been discussing the original version of it was repealed and replaced with the new version those changes i think are worth noting they plaintiffs sort of undermine you know under emphasize them so we say and can and and argue that rocky mountain controls because the facts are identical and i do think that rocky mountain controls this court's decision on the  merits but i don't think that the facts are entirely identical and the changes in the regulations simply underscore the absence of any constitutional problem so for example the crude oil provisions are very different now than they were when we were up here on the prior appeal  they now function in a two step process by which the first step everyone every crude oil is assigned the default average everyone is treated identical which is the apis opposite of discrimination and then at the second step if the average has gone up everyone receives some incremental deficits that both properly accounts for increases in carbon intensity on the crude oil side which is important for the integrity of the program and it also a lot provide some form of a disincentive for especially large companies to produce to provide to california large quantities of high carbon crude oil so it provides some modest incentive for the purchase of low carbon crude oil but that incentive operates without regard to origin and so it is completely nondiscriminatory and i just wanted to flag for the court that the the that regulation has changed in that way in addition point and again just to reiterate that there are two sort of general rules here one is the general rule that when a law that is being challenged is mooted i'm sorry i it moots the challenges to that rule and we cited the arc of california case for this proposition in our brief there are of course exceptions to that general rule such as when a violation is capable of repetition but  review that is that exception is clearly not it political here because there is a regulation in effect now that is capable of being reviewed and in fact this court is reviewing it as we speak and so there is no exception to that general that applies here and then we also have the eleventh amendment issue with respect to the un availability of retrospective relief and again that wreck that the relief that is available under the eleventh amendment is prospect of relief that would stop an ongoing violation of federal law and plaintiffs characterize what they seek as an injunction of enforcement but the repeal provisions have not applied to a sale in california since the end of twenty fifteen so it is not clear as i think that's murky alluded to what it is they are seeking to enjoying the law has already been applied through twenty fifteen we can't on apply it we can't undo the sales that occurred under those rules and actually unwinding those sales would be tremendously problematic on a practical standpoint as well as very unequivocal to people who have been trading credit and engaging in a go she added transactions under those rules we shouldn't go back and undo them even if we could which we can't place she still said that it looking at the event they can go back and claim money damages for the credits that they have i mean in an individual individually well there would still be an eleventh amendment concern in lest they could bring a suit against someone in their individual capacity which i think would be a very difficult thing to show to meet that that bar so i think that this case ends up kind of in the same place that you know adelman ends up that entitled to and they had no recourse to get those back and while that can seem unfair it is the way the eleventh amendment works and it also means that we depend upon other aspects of the judicial system such as a preliminary injunction to avoid only ones seeking retrospective relief now did not and so you know that's just where we are and that's the balance that we've struck and i think that the court the supreme court in green describes very well that balance that the interests of the supremacy of supremacy clause in enjoining ongoing violations of federal law are sufficient to overcome the eleventh amendment but compensatory interests are not i'm just not money damages in the sense that the money would come out of the state's coffers as it would have say in edelman but the credits and deficits are in essence the currency of the c f s program and so in that sense they are somewhat like money that buys by seeking to get more of them one is seeking to have more money they are they're essentially a tradable instrument and so while it wouldn't well issuing more of them doesn't require that the government to spend more money it does provide additional financial resources essential e to the plaintiffs so in that sense it is very much akin to a compensatory remedy like money damages and as i mentioned earlier the eleventh amendment bar on retrospective relief is not limited to compensatory damages that would come out of the state's coffers it is it bars other forms of relief as well and it is addition to the students for conservative america case i mentioned you could also look at ten six thirty three federal appendix five seventy three that was a recent twenty sixteen decision from this court on which judgment it was on the panel and then you can also see it in the way that the courts talk about it that in for example  arizona students association versus arizona board of regents which is a twenty four a third fifty eight this court said the eleventh amendment bars lawsuits against a state for money damages or other re ective relief so again they're not the injust injunctive relief to stop the alleged ongoing violation of federal law is available only as to the current regulation that is being enforced the original provisions were repealed at the end of two thousand and fifteen they haven't affected a single fuel sale or credit sale or any other transaction since the end of twenty fifteen there is no controversy and that was in context of the original c f s as opposed to the amended and i don't think there's a material difference between calling an amendment repeal especially if the credits continue to carry over there's no material difference there but you just heard a whole litany of reasons why that wouldn't be the case and with us from dorothy do you have any authority to swell their i'm sorry there are a couple of kids there and there were some cases that i just we this is the first i've heard of those cases  can't respond to those we i guess what i would respond is that one we're not seeking retrospective relief or that we're just seeking prospect of relief and therefore there's no eleventh amendment and i'm not sure i understand how that prospect of relief works in the context now when you have a repealed in place and you know how that wouldn't be retrospective i know you could your been calling it prospective but  then this was the questions that i had you know for this or argument and i think some of the cases that have been brought to our tension and seem rather compelling and i'm just trying to figure out if you have anything to offer in response well what it what i'd offer is that what we're talking about is we are talking about it the relief we saw was an injunction declaration and injunct injunctive relief the injunction would be as to the current l c f s but  in determining whether someone is in compliance or not in compliance with the current else you have as you have to you have to look at the credits that they had under the prior provisions so i guess that i'm sorry i'm not being more helpful to your you just very very briefly on a couple of the other points that were raised b m w versus gore counsel said that it doesn't it doesn't support us i just would point to the court's decision this court's decision decision in daniels versus sharpe smart where the court relied upon both b m w versus gore as well as the carbone case in that case the court held that the california regulations extraterritorial because it can do it because it impose conditions on the export of that of a product in that case it was medical waste and carbone says that it's in its extraterritorial an unlawful for state to impose conditions on the import or export of a product  in order to control conduct outside of the jurisdiction with regard to crude oil the there have been changes but the changes are not material the the the point has always been that the way the cruellest is treated is it's material difference under the current it's really you know it's the same it's the same one in all bottles if you look at tier one tier two which is an exhibit h of the the request for judicial mission from  all of those all those fuel pathways plain as day is the location of the fuel where it's produced and the energy source that's used to produce it and that was the problem with the initial