address two issues first the e p a guidance issued in this case was issued without noticing comment even though it's a legislative rule second that guidance is arbitrary because the agency failed to consider harms to health in the environment from substituted with safer substances the court however upheld as reasonable e p a s decision to add h f c's to its list of prohibited substitutes for ozone depleting substances and the effect of the act was to leave the rule in place leave the listings in still subject to the h s c listings and those who would already be replaced with a gypsy's who are beyond regulatory reach it is guidance however indefinitely suspended those restrictions with respect to both categories in a back to converted mexican allows so what of the so that one of the points of the evening makes in its guises that there is some confusion that's left as a consequence of mexico so put aside the part about the big divide between whether the user has or there's still no depleting substance so if all we had was mexico and then the agency says best going leaves an ambiguity about what to do in that kind of complicated situation where users applying more than one substance and here's the way that we're going to do that in the interim we issue a rule making would you think that that is final agency action that has to go through notice and comment itself or is that the kind of ambiguity that the agency gets to deal with in the interim without having it subject to immediate issue of us finally is there in this case your honor that the agency could have left the agency listings in effect with respect to their clear applications current users of those underplaying an appalachian power that the fact that an agency might subsequently revise its decision doesn't affect finality with respect to the fact that there was a suit and the fact that the  entities that these age of c listings no longer apply and that they're free to change their conduct and engage in behavior that was previously i'm awful of the agency didn't gaijin in a workshop with stakeholders about a year ago but we still don't have a have a propose rule so again the fact that the agency continues to consider this and the fact that it might take a position that's contrary with it in the future doesn't change the fact that as a binding legal consequences today and when had anticipated all this ahead of time and had had a severability or in several whichever way you put it clause in the rule itself that says that in so we just want this to be an all or nothing proposition so insofar as a court might on judicial review  validate any application of this our preference would be to have the entire thing invalid assuming that the court's analysis in mexican will remain the same wouldn't have we now have to defer to that severability cause to courts are viewing the rule that has a cause like that i'm not familiar with the dynamic by the way i mean i know it happens with statutes but if it happened with a regulation what would a corporate viewing a regulation that said something like that then would the court be obligated to say look we think the rules invalid in certain applications ordinarily we would invalidate it as applied to those particular situations and leave it standing otherwise but the agency has told us already that actually it views this to be on an all or nothing proposition and so could continue to function i just know i know your honor that in this case continuing to apply the rule to current users of ozone depleting substances serves the purpose of the rule the rule was all about reducing h s c emissions so continuing to apply it to a subset of the that agencies identified but that doesn't undermine the finality of the guidance now it's a virus that affects the legal rights and obligations pacific for his or is it your position that the only option was to continue of lawful avenues to pursue in the wake of the court's decision in mexico you truly have done nothing allow the court's order to stand in which case regulatory council for national supermarket chain acts for example would have read the court's decision probably not included that they were no longer subject to the rule e p a could also as it suggested might have done its papers issue a narrow guidance saying perhaps that the course decision should be that it not only to apply to product manufacturers but more your honor i think we believe that's inaccurate because we think that the legal effect of mexican one was necessarily to vacate the twenty fifteen rule in its entirety as a result of those users would not in fact face the risk of it forces action you or basis to draw the broad conceptual distinction unmask him one and it's important to remember that that that in subtle distinction is not found anywhere in the ph regulations as they stand it is regulations as they stand know if you look at the rule that doesn't draw that distinction and we just don't think that it makes sense to draw that distinction and so when i'm going to do it in that situation would you say that a user should have known that that would have been what you would do because a user should have been able to say well i'm going to apply a severability principles and i'm going to see that even though the opinion said x the agency is going to conclude y your honor i think that's a very different situation than what we have here and i think the answer to that question is in those circumstances the court presumably would have done some sort of separate ability analysis in determining that the war remains and in fact and i were not i'm not saying that's not the hypo i'm saying the opinion is exactly the same as it is except it has a final concluding paragraph that just as to be clear here's what we're saying your honor i think that in fact in that case the court wouldn't have done this ever ability analysis and there might be a basis for u p a to come in and say this actually is in fact enforceable and seek  clarification as it as it has somewhat similar to be done here the fact of the matter in this case their ends up being that because the court didn't say anything to that a fact that in fact  a very different case i think that what we've ended up here with here is a situation where that i don't know how different it is because you even start your brief by saying these aspects of the court's opinion cannot be implemented in the literal you're reading the opinion the same way that i just said that the opinion would be read if they had made that clear statement at the end and you're still saying that even though that's the way to read the opinion quaternion you just can't be done that way and i'm not necessarily saying you're wrong in that i'm just saying that i don't see the big difference between the hypo that i gave you and reality because you yourself are reading the opinion to do what i suggested it would make clear that it had done as you are i think you're correct there would still  consider the severability question that in the opinion itself can be right and should be rather interims of what that regulatory structure actually is so if the court had in fact said the rule remains in a factor might be inadequate domestic supply waiver under the renewable fuel standards program and remanded that portion of the rule at issue but still consider using still considered additional challenges to e p a s treatment of the same waiver and  respects so i think there's a real difference between saying that the court has looked at the whole case in front of it and found that yes it was rational for e p a and what of the comparative risks of each of these the other substances seen what was coming and the agency ahead of time had severed builder in several calls in the rule itself and it would have said in so far as a court might conclude that this rules invalid in certain applications it remains valid  in force one of those applications and that's not certainly something under this court severability president of the court would consider but the court would in fact have to look at the other factors and whether their war was in fact implementable and the  the right that's my question and ready if you had done that in this case one would say that the proper resolution for a court would be to say to that i think that you can't you can't i think that looking at the regulatory structure in this case that p s u is there is simply not a scaffold there that allows it to draw the to implement concrete of the broad conceptual distinctions and i think you know i don't want to prejudge that case of that statement doesn't exist but i think my my responses yes i think that it's very likely and all parties over a book in mexico and one that what you would find is in fact that the whole of the rule should have followed earch sort of the whole rule should have fallen and that playing into that is that when you look at these complex distinctions that the that actually can come out in that decision would require you find there is no basis for them and that's why even an r t c in its past briefing said that it would require implementing the rule would require complex distinctions among categories of users that aren't found in the stature of the regulations but i also think that at the end of the day this is an interim rule making this is or it's a new this is an interim guidance in which  and it does to some extent your honor i have because obviously whether a rule is the consummation of you should see action and the agencies final statement of its position is one of the benefactors and so it's certainly the fact that this is an interim guidance document that this isn't the agency's final statement of its position is something that the court should consider and that could leave the court to find that the rule is not final  consequences i think by definition if you if you disagree with our reading of mexican one would concede this is a fine right and we can see the review of all regulation because of the legal consequences even though your honor i think that's right  think that even even if the court finds that there are there are reading is just flat out wrong it is very likely the court keep bradley for the interiors i asked the court to recognize the difficult spot that e p a was in after mexican one this regulatory program has from the beginning been about sector and function and its been and chemicals and substances have been banned or affected on that basis what additional are asking for is essentially a user or a unit or product or something else based regulation situations i think of the one the one you posit is one in which is maybe complicated to some extent to figure out what the relevant user is and that's exactly one of the situations that the agency points out but i think the other side stead that the  covers invalid is say the e p a will not be applying and i think we all agree that that means you might be enforcing it so this is really a non important guidance but only in the sense that every time you say a rule is going to be we're going to deem invalidity to apply to the entire rule that's always not unfortunate because the consequence of that is you can't enforce the e p a didn't say we have only a limited number of resources to allocate across all of our enforcement programs what we're going to do now is as a matter of unfortunate discretion we're going to decide that we're not going to enforce these applications of this rule they didn't do that had they done that it would be a different case i'm not sure which i'm not necessarily saying how that would come out but i think york trying to say that reconsider what to do with the twenty fifteen year old and but while we're reconsidering it we're just not going to have that we're going to act as if that was not in effect you would say that's unfortunate discretion that's