i'm joking you may begin may please the court i represent two petitioners in this case two local groups of members who live nearby a propose facility that is authorized would would can authorize the construction of the largest single source of air pollution in the entire texas rio grande valley these petitioner groups have members who live nearby the facility action challenging this particular permit title twenty eight section one thousand three hundred and thirty one the general federal question statute is virtually identical it says we have original jurisdiction over all civil action what is that what is the nature of it who can you sue what kind of remedy can you get right when the supreme court has to list over and over that we need to look in the statutory text to find the basis for the cause of action and i'm looking at it it certainly says we have jurisdiction i totally under the natural gas said to be a state agency act and pursue into federal law no one none of the parties in this case contests that the c q fits that definition and and the only other circuits to have addressed this circuit's opinion very carefully and i understand what they're saying but they're not inserting the question that i'm asking you which is what is the court that again i get the jurisdiction right but it would seem like you would need to point to some other thing that would give you a civil action in the civil action it sounds like the thing that we're talking about the real ones contesting in this case the reason we're here today is your clients want a contested case hearing which as you know as a resident of texas i understand that notion and i get that i see i can see court all the time is an unusual procedural posture where usually in state court we have this unique statute here the natural gas that that provides exclusive jurisdiction and it's and it's the other i don't know the answer the question your honor i think there you have a constitutional basis for federal jurisdiction but here you have this issue the environment i don't know that anybody's contested that the environment impacts particularly environment in brownsville impacts interstate or really in a country  really where this question a line of question seems to be taking us so go ahead and address it directly is there federal power to create a clean air a it doesn't purport to create one and and then that again that the other reports that have reviewed this are under look to the federal a p a of what the agent what what this court can do and how it reviews agency action ok why don't you tell us why your clients have standing by there any different from everybody else who's driving through this lovely make your a map or whatever it is that you gave us yes provided the map which from the records your honor so we have a sense of the area and our clients have standing because all parties in this case agree on to legal principles that apply to the effect of person determination one is that the standard should not be narrower than article three standing and two that the effects of person determination should not be a merits based determination of harm at the standing face here  misapply these standards because it can be continually asserts in briefing and in the record that our clients do not have personal judicial interests that are distinct from the general public just because many other people may have the same interests just because there may be other shrimpers there may be other people who travel on the roads or maybe other people who live in the nearby towns with that argument doesn't everybody that lives in brownsville that drives up to forty eight to go to a park or islander everybody that lives in port isabel that drive down forty eight to go to brownsville they don't have standing would have three hundred thousand people with pain but your honor that the supreme court has do the standing is not to be denied simply because the correct standard should be whether there's a geographic nexus and it doesn't anybody the moment let's say they live in brownsville they work in brownsville but they own a condo on the isle of which there are  stop that and there are two answers they are the st says again to see the us supreme court is that the fact that particular environmental interests are shared by the many rather than a few does not make them less deserving of legal protection to the judicial process so simply the fact that many people could be impacted is not the correct legal standard the current legal standard answer my question is under your argument everybody would have it if there is so under the geographic nexus test you have to show the discharges will reach the areas where these standing witnesses have interests and so we have shown undisputed evidence from the record that the eight thousand tons per year of new airplanes who come from this facility do not stop at the fence line they go further than the fence line and based on just one piece of evidence from the applicant's own modeling that that will travel at least fourteen miles so i mean there is and there's many more pieces of evidence in the record that show how far it will travel there will be increased air pollution this is in contrast to other cases from this court such as the recent center for biological diversity case this isn't a large geographic area like the gulf of mexico and petitioners here have shown that they are in the vicinity of these discharges they not only have a travel but even if you just look at where mispronounce low lives it's their five miles away that's that is within the area that it's undisputed in the record there will be additional increases in era missions so the this is lot of people that have standing you know they would have to show just as as described in the center for biological diversity case the geographic nexus to where the emissions in this case are coming from and how it will how their interests will be impacted and the standard is a person who has a personal judicial interest related to a legal right duty privilege power or economic interest affected by the administrative hearing either way anyway i'm not very good but a lot of people would be affected so that's what i'm trying to and the point is this is a very large facility in terms of the number of missions and so it really does it's a fact specific analysis based on the source of pollution you're looking at in this case we've identified what the facility is it's not a rule making where we you don't know necessarily the pollution is coming from we know where it's coming from you know the amounts that they're authorized to pollute we know based on the actual meteorological conditions used in their modeling how far those additional  emissions will travel that under the case law is enough at the standing face to show that there are persons additional interest not come into the general public and i'm sorry i'll correct myself again i got the right the st time mexico this entity wasn't allowed to get this permit because i don't really like it being in my neighborhood that fair your honor if you if you take the lot that a logical extension of is arguments in this case if you look at this map and you look at their repeated statements referencing a one mile or one and a half mile radius not being anything beyond that being common to the general public nobody for this facility would be able to have standing under there under those legal standards so there's nobody in that role there are period not your and i just mean in the world not not that i'm aware of if you look at this map it lists all of the hearing requesters that t c q denying everyone's hearing requests and it shows where they live and also shows that one mile radius on the m proposed but not yet facility are certainly an injury in fact and to go back to your question judge chains about why they affected person language and whether how narrow or broad it is  g in their briefs do not disagree that that standard in texas law can is not narrower than article three standing and so the factors in the whole standard has to be read in light of article three to judicial review under the clean air act which e p a interprets must be equivalent to article three standing that c q since the attorney general opinion specifically states any provision of state law that limits access to judicial review didn't d not exceed the corresponding limits on judicial review imposed by the standing requirement of article three of the united states constitution your time is thank you for now you could probably talk about this although we have limits please the court my name is mark steinbock i'm here on behalf of the texas commission on environmental quality today i will address his decision to mine the contest against hearing and counsel career grand will focus primarily on the merits of the complaints against can bring this into can get a contested hearing if you narrow it the scope enough of the miles then then the company's always going to get their way so the question is is there a scenario where there could be no company or d picking a remote location so that they wouldn't affect that's that's an excellent point your honor and industrial sites can and do probably choose to site their places in a begin happen and shrimp start dying now why well and who has a cause of action well what is st point i would make is that this these this premise for air missions and these air missions well animal started oh whatever it is i don't know who in bronxville what the animals are that they raise but whatever it is they start dying i mean who at which i would do whatever animal it is whether it's a shrimp or a pig or whoever  state could bring an action to enforce is permanent if they were causing let's say air missions in many times the limits ok but i'm ok i want my question would the owner of the deer farm have a cause of action in that then the air starts coming out and contrary to all of this discussion in fact it does start killing the deer then yes that's my guess i believe that would be a person just a simple interest because there you have an impact that's unique to that particular individual and it has the emissions have affected them in a way that hasn't affected others and so long as they brought their action within the statute of limitations i think they would have that but you're saying they have to wait for that yes i believe so so the petitioners here in question if we just turn to their carry weapons this is an important point they only identified two individuals with standing in their own right to bring the there with the requests and that was legal ever your reply before the commission which is what they did so for ms reno in a field a key factor supporting the commission's decision was the distance that they live and work from the proposed facility for mr no she lives eighteen miles away from this si yellow is five and a half miles and they both work miles away from the site as well both of them express concern about increased air missions impacting their health and the risk of accidents and explosions if we tell us that is what the administrative code tells us and that's that's fairly specific so weak this general public issue is not just something we're randomly talking about that's routers that's right and written with regard to the impacts of the si be lovely and there isn't going to be any impact on the environment it will all be wonderful and therefore why do these people care well of course they don't agree with that and that's why they want the contested case hearing so that they can come in and show that they think you all have done your job in that kind of yes that or here that's absolutely correct but i would point out that in this goes to the way the contested case hearing works texas law is clear that the party seeking a hearing has the burden of demonstrating to the commission they are in effect a person so this is not like a pleading standard where it's if you just make some allegations that you've been harmed then you're over the line but that doesn't mean repressed or has to prove the merits we agree with it it does mean that they must demonstrate how they are impacted in a way that's different from the general public so it's not enough just to say well i'm concerned i'm concerned about my health and concerned that this might affect me they need to come forward with evidence and to see his rule specifically contemplate that the kit authorizes the commission to review expert reports affidavits other value i would want to address before the petitions mentions the floor in that case yes the court did find exposure to emissions within the next to be an injury in fact but this was because the plaintiff in that case lived and worked within a few blocks of the proposed facility the court should reject taking this concept to the extreme proposed by the petitioners which is that exposure to any amount of an air contaminant even de minimus announce miles away from the source and without any accompanying evidence of a health impact is also an injury in fact in countering individual molecules of knots i mean that's essentially where we're at with this or other criteria pollutants in the ambient air cannot be the standard that cannot show a concrete injury and i would add moreover it would be difficult for t c key to administer such a standard the modeling software t c k uses for its p s t review can accurately model missions up to fifty kilometers from the source but the software was not designed to show where that the level of emissions go down to zero so implementing any exposure standard for affected persons would be difficult for t c k to mr simply because the agency can't say where exposure goes down to zero so that and that may in fact be one hundred kilometers away or even more and so that simply cannot be it and so what the standard is is for the petitioners of the hearing requesters to put forward some interests some evidence of how this will impact them in a unique way i also wanted to address cedar point  and laidlaw in the other cases the petitioner cited but there in those cases there was an undisputed concrete harm in the form of the illegal discharge is that the interfered with the plaintiff's use of specific natural resources and the simply no evidence here that the that the petitioners made such similar assertions here so those cases really don't apply and i would add just for example in cedar point while the plaintiff had observed discolored water oil and grease and had detected unpleasant odors into the city of the water that they use i mean there's nothing like that in this case there's no tangible effects on them or even an imminent tangible effect on them in that way i would also point to another case from this  polluted air in that case meant something more than i have encountered in the occulus knocks in my you know in my daily life the plaintiff described overpowering sulfurous orders at their home and in their yard and because in that case the fin it was violating its air power but with a proposed site like this a petitioners have not shown an imminent concrete injury based merely on theoretical exposure i mean the problem i have  narrow a view of the fact that persons is wouldn't we all rather avoid everybody you know the deer dying and everybody getting sick then have to wait for that and that's the whole notion of this contest a case hearing that's a whole the notion  challenging the permit rather than waiting for all of this to evolve right that's exactly right and so where is that line yes and i think just the concept of identifying something that's unique to you to your so that if that's the standard then it opens it up to an enormous number of people and so i think there the distinction between bystander and someone who's truly affected by a proposed site evaporate affected persons which we don't believe they are they do not have standing to challenge the merits of the permit so we don't think the court needs to reach that issue in the alternative if for some reason the court were to conclude there were affected persons the appropriate determination around and it would come back on a completely different record so the merits we don't think are actually an issue this court needs to be concerned about but obviously we've addressed them out of an abundance of caution in our brief and can do so briefly today as well the standard of review as the court aware is a very deferential one especially on the very technical issues that are problem of not having a contested case hearing that it becomes kind of a one sided process i mean it's a rare day that the person seeking a permit is going to say oh yeah i'm going to destroy the rio grande will be lovely they're going to say oh we are so environmentally conscious and everything's great in the air will be beautiful and the sun will shine and then there's no one to come in and show the other when you don't let them have a contest a case series so why not at least have the hearing well i think in the situation honor it is t c choose job to protect the environment for the state of texas i mean that is their primary goal and it's not as though they didn't perform their duties here they took a year and eight months there  substantive visions to the permit application here based upon the questions t c e q was asking there were very complicated formulaic changes to the air missions there were two revisions to the air quality analysis protocol based upon the neither was being given this permit so you don't have to go to a contested case with an affected person for the appropriate analysis of the protection of the air quality of texas to have been made to c e q is charged with that and whether they kuper say i'm just saying that's why citizens who consider themselves affected you know want to be heard and this is the mechanism that they're saying that it seems caught on one sided here well it in fact is not one sided there were  hundred and nine pages of responses to something like seventy six specific issues raised this is not a situation where the the public comments were ignored the public comments were taken into consideration in significant detail not just by the executive director of the c q in his analysis but also by expert courts that were provided that responded to the to the issues so this was not a this is certainly not a situation where  was performing its duties two hundred and ten thousand pages in the record to prove otherwise these particular petitioners just simply could not establish affected persons were not saying there's never a situation where you would recognize an affected person and even in this circumstance there could be an affected person that did not apply for a contested case but these petitioners do not qualify based upon the affected case analysis which is a deferential one a very technical one that involves air dispersion and air quality analysis and involves taking into consideration the cameron county as an ataman area which means there are very little pluton there in existence at the time it involves taking into consideration that our g l and g chose a site that was very very  sparsely populated that they i did that to out of consideration for the impact of this facility on the environment so that all of those things are things that are taken into consideration and t c to ha to say in this particular instance based upon these these air emissions based upon this air quality dispersal model that we've done and based upon who lives where and what harm they've claimed they absolutely are correct to have said these this particular situation no effect in person and has applied for a contest a case and a contest a case is not necessary here they did their due diligence they very very significantly scrutinize this permit challenge is the back to malices which is an analysis of the best available control technology to be used and this is actually thousands of pages in the record there are seventy six pages in the permit application that go through the says and it was highly scrutinized by t c e q themselves considered eighty six pages of different technologies to make sure that the technologies being used were the ones that would be the most technically feasible but also have the least emissions they excluded things they were entitle to exclude like redefining the source experimental technologies and weren't available in the united states things are incompatible with the facility so an example are the electric compressors that have been made an issue of electric compressors as opposed to gas turbans there is probably indisputable that they have a different emissions correct but here t c e q determined it was dispositive  that the electric grid in brownsville texas would not sustain an awful lot tricity to run electric compressors at this facility that's a technical issue that was reviewed and analyzed by both r g and the idea that we then needed to consider electric compressors when it was entirely in feasible with this project is just something to support needs to give deference to the same with the air derivative terminals that they've made an issue of there you have a situation where you would have had to entirely redesign its plant because for every available aero derivative turban you would have had to have five of those to every two of the gas turbines that were proposed that's a total redesign of a facility which is not required under e p a regulations so these are the types of things that the petitioners are challenged on the merits that are in entirely technical issues the same with the growth analysis and the nitric oxide emissions from the warm vessels those are things that this co to redesign or change anything from it to regional design i don't think that the commission necessarily required a redesign they certainly didn't require a substantial redesign for example you must use five of these turbans to every two you were going to use there were certainly questions raised about are you using the best available technology to control pollution here and they analyzed that  just for the turbans but for for all sorts of other pieces of equipment that were going to be used at the facility and they went through an entire analysis both under the federal back and out the standards and the state back standards and concluded that the best available technology was being used in all in all areas too many people would be impacted this needs to be a case by case look at this facility so when you're looking at other cases and you're looking at this facility you have to look at the impacts some of them are much smaller they have cited to the floor that as we have in the nd circuit highest air pollution at that facility was two hundred forty seven dollars tons per year so the distance that that person was from the facility versus here the hot one air pollution here is over three thousand dollars tons per year just one of the air pollutants you have to look at the magnitude it has to be based on this facility there's substantial evidence in the record that demonstrates that is actually applying an arbitrary distance requirement to all facilities instead of looking at this facility and seeing whether there are impacts to people that have actually claimed personal judicial interest so to your question judge jeanine and there definitely there could be situations where a facility is far away and nobody has  rocket shut down any proposed plant or not shut down but i have a contested hearing regarding any proposed plan on the houston ship channel are you referring to mr nel who lives over eighteen miles away st i will answer chris st so point out that she works five miles from the facility she has claimed extensive economic interest to her business and that will be harmed by this facility so we're not focusing on where she lives but where she works reading the case law you have to look at what type of facility is what the magnitude of the missions it has to be based on the evidence in the record and as you said judge it would just it would be you get to go to a contested case here and then you have to put on the merits of your case you don't you don't get to say i'm an effective person i'm going to shut down this plant you have to go to the contest a case hearing and then prove your case on the merits in the applicants in rio grande l n g's response to hearing requests which is in the case hearing this is because the applicant is required to demonstrate there will be no adverse effect on the human health or the environment at the property line of the facility that is their burden on the parents there stating that she c q is applying one mile radius regardless of the application that is the definition of arbitrary and capricious you're not looking at the actual facts for this facility we have pointed to evidence that shows that  above the significant impact level over fourteen miles from this facility several of the cases that were cited by opposing counsel are existing facilities and they were citizen suits brought as enforcement cases that's a very different posture where you are saying they're violating their permit this is an existing today i can smell something no one can smell something from this facility it is not built yet so you have to look at the interest in the context and that's the hard part is like i said i'm i can understand wanting to prevent the explosion or the everybody dying or getting sick from something on the other hand you can always say i mean nobody ever likes to have a plant built in their area so you could always say i wish this wasn't coming and that's the isn't an offer to make you something different from the general public which is from the code it's not something we're just making up so there is a concept in article three soon of particularized injur so the injury has to be particular as it's not it's actually not that different from article three standing that is discussed and that's where the geographic nexus test comes in which is not looking at how many people will be impacted it's whether you actually have claimed  a particular rise judicial interest on the merits very briefly t c h you cannot have it both ways they cannot say on one hand affect a person's status is is narrow  or we think that the decision of the t c q is wrong to hold refuse a contested case hearing then we should have a contested case hearing rather than decide ourselves whether you need five whatevers instead of two and all of the technicalities that  should have a contested case hearing if you have the standing to get to the permit i think is what they're saying yes and that is what petitioners believe is the prep i personally think that makes sense but you know assertion belief is that there were no changes made in the response to comments by two c q eras and petitioners raised this is not a situation where petitioners are going in and saying we don't we don't want this facility we're concerned that they don't get any substantive arguments we submitted twenty six pages of detailed technical questions that we believe should be addressed at a contested case here and thank you thank you for hiv both sides and the case is under submission and we will take a